Joyce Kibulaga vs Republic (DC Criminal Appeal No. 99 of 1997) [1998] TZHC 2377 (29 April 1998)

Hie IN THE HIGH COUH'r OF TANL.ANIA AT MBEYA (DC) CRIMINAL APPEAL NO. 99 OF 1997 (From the decision of the District Court of Mbeya at Mbeya in Criminal Ce Noo224 of -1996 Before: I.A. Mtiginjola .. District Magistrate) JOYCE IUBULAGA APPELLANT_ Versus ' THE REPUBLIC o o av 0: o u o o·o o o .Joo o • o • RESPONDENT JUDGEMENT The appellant Joyce d/o Kibulaga _was convicted ~ith conspiracy to commit an offence and was sentenced to 7 years imprisonment as well as having been convicted with house breaking and steal¥1g and sentenced to 3 years imprisonment c/ss 384 and 294 and 265 of the Penal Code respectiv$1y. She was unrepresented both in the lower Mbeya District Court and i_n this appeal 'l'he learned t-'".tro Mulokozi (State Attorney) for the Iespondent the Repub:t_ic has -not supported the conviction and sejtence on reasons that there was a chruwe for other· people to steal from the complainant through another back door at the bar and by other room ocupants in np.c:rbg- rooms of the just house. The appellant herself argued that she was away having finished her duty when the theft took place. The appellant was a guest house keeper or receptionist at the Lily's Bar and Guest House at Iyunga area Mbeya Municipal. A guest who had kept up for the night in room No.108 at the guest house named Pius Petro s/o Saidi PW1 had his money shso80,000/= stolen from inside his guest room while he went to take a bath in another room. While there he was shifted by appellant from room No.10- which was incoveniently near the latrine to room No. 108 which was safer than room No.107. The one who did the cleaning Of room No,.108 and the shifting of bags from roe~ Noo 107 to room No.108 was another attendant the 2nd Accused one Sister d/o Samwelo The s.ame 2nd .accused was tried at the stage of the defence in her absence for did not attend to the court and must be presumed to have ••••oo•• /2

abaconded for no evidence was tendered to show that she was sick and the Republic could have prayed to have her evidence .taken from the bedside. Ac·cuall by 4/10/96 the surely informed the court that the 2nd accused had recovered and. would be attending to the court sessions.· But, instead of arresting her the cou· proceeded without her on 24/6/97 under section 226(1) of the CPA. 'l'he original trial magistrate was the learned Mr. Safari (SRM) and he took eJ.l the 3 P<J.s. The next trial magistrate was the learned Mr. Mtiginjola (D:-1) who took over the trial at the stage of .the Defence and he neither gave chance to the Accused to recall the witnesses if she wanted nor did he give reasons why he.was taking over the trial.of.this case. In his judgement the 2nd trial magistrate convicted both accused and sentenced both accused to 7 years for conspiracy and.3 years for house.breaking and stealing. As for the a}Jpellant her defence that at the time of theft she had left work being off duty was not considered at all.· She completed her shift at 11.00 J\M and left for home. According to PW1 the theft took place·.at 1 .. 00 p .. m. the and he dealt with·the 2nd ·accused through out, she 'is one who gave the key to room No.108 and did the cleaning of that room and shifted the guess,bel("\11j.- from room 107 to room 108 .. After the stolen was stolen, it is then when the appellant· came back to the guest has to ask for s~. 1000/::: more since he had underpaid her in the morning before·she left the guest house •. The one who told her to return to the guest House to· iequest for the extra li,dging bill ·was PW3 . r,..:i8n Mwakitalima. Actually the complainant testified that he had indE'!P.~ ··- .~~~:. •. '' . . . ~ paid the appellant by 1,000/= arid he paid her that money as demanded. P.v2 C 1430 D/Sgt. filnmanuel too testified that the one who -was at the reception at the time.of theft was Sister d/o Samwel, not the 1st accused Joyce d/o Kibulaga the present appellant •. From the evidence on record the appellant could n"+ .,,.,,_ 1 • had an opportunity while the complainant was taking a bath for she was not presen a~ the guest house having left since 11.00 A.M. She was wrongly convi< I quash the conviction of the 1st accused the present appellant Joyce d/o KibulP' on both counts of conspiracy c/s 384 and house breaking and stealing c/ss 2g4 a~ 265 of PoC. I set asid,~"th-e sentence of '1 years imprisonment and 3·years .; '., i.:

... 3 - 11 prisonment accordinglya I set her at liberty forthwith. iV1 ipopo, Judge !:pellant ~ Joyce Kibulaga , .• present in person. L·. Nangela (State Attorney) Present fo1 Respondent. C_IC; ·Mr. Mwakyusaa Gourt: Judgement delivered. Sgd. E.L.K. MWIPO' JUDGE. )]IR: The 2nd convict - Sister d/o Samwel and her surety Joel s/o Bukuk~ : .. ave not been dealt with in accordance with the law and the Judgement of the District Court. 'I'he same 2nd accused be arrested as well as her surety for thE- .:'::id. Accused to be committed to prison by the lower court as per lower court 1 B c ::mviction and for the surety to be brought to the lower court to show cauB~ ,· ·1:· his bond should not be forfeited for failing to produce the accused who 1:as on bail when she was so required by the trial court. There is danger of rrcding the courts powers if sureties and courts will be let loose to fool arov· with the court system at their will without the necessary corrective actior :from the courts. ""fhe lower court 1 s file be returned to the lower for the

. _ ,(/\ .. :fo~~~ation of this order by the SRM i/c in person of Mbeya Region .. ,'• '-', -;\ fl / •••· • .... \ /, Oj / i' ' . . <: . ; fiJi /:: .•,· -'·i .·)', 1., .... L.Ko Iv"'· 1 IPOP l• ..,, I /·.· · - ::,;:· •· : :cc, , · · , Sgd. J:J m ~ 1 1 - \ \ • ·:?:· · . /', . : ► l \ \ :. . ;·,c, .i·~:. ,. : !I.l!.RQ~• ~~ :~::•Jf} ) .......... , .. ~f" / ·;:;;c.. ·--- •• ,. ·f' CERTIFY THA'l' THIS IS A TRUE COPY OF 'rHE ORIGINALo

.... ,. .J , . .... ,,,1 ( ... ,. , " , . •,1.,. ·;,, 7