Joyce Kibulaga vs Republic (DC Criminal Appeal No. 99 of 1997) [1998] TZHC 2465 (29 April 1998)

IN iilIB HIGH COUR'r OF TANU.NIA AT l"JBEYA (DC) CRIMINAL'APPEAL NO~ 99 OF 1997 ·(From the decision of the District Court of Hbeya at Iv1beya in Criminal Case Noo224 of 1996 Before: I.A. Mtiginjola .• District Magistrate) JOYCE IUBULAGA , , •••• " •••• " •·• ~ •• ,: APPELLANT Versus THE REPUBLIC RESPONDENT · JUJXIEMENT . . 'rhe apl)ellant Joyce d/o Kibulaga was convicted with conspiracy· to commit an offence and Wf!S sentenced to 7 years imprisonment as well as having been convcted with house breaking and stealing and sentenced to 3·years imprisonment c/ss 384 and 294 and 265 of the Penal Code respectively. She was.unrepresented both in the lower Mbeya District Court and in this appeal The learned Mro Mulokozi (State Attorney) .for _th~ Respondent the Republic .has not supported the conviction and sentence on reasons that there was a chance for·other people to steal from _the complainant through another back door at the bar and by other room ocupants in np.;;tl.'bff rooms of the . just . house• ' . 1 .rhe appellant he;r-self argued that she was atiay having· finished her duty ..... ·-, when the theft took,plce. 'rhe appellant was a guest house keeper or receptionist at the Lily's Ben- -and Guest House at Iyunga area Mbeya Municipal. A guest who had kept·up for the night in room lo.108 at the guest house named Pius Petro s/o $aidi PW1 had ,, his money shs80,000/= 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.10r which was incoveniently near the latrine to room No. 108 which was safer than . . . room No .. 107. The onewho did the cleaning of room No.108 and the shifting of bags from room No .. 107 to room No.108 was another attendant the 2nd Accused tine Sister d/o Samwel.. The same 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 • 0: o • •.o.• • /2

abaconded for no evidenc~ was tendered to show that she was sick and the Republic could have prayei:I to have .her evidence taken from the bedside. by 4/10/96 the st1rely informed the court that the 2nd accused had recoverec And would be attending to the·· court sessions. But, i.nstead .. 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 all the 3 PWs. The next trial magistrate was the learned Mr. Mtiginjola (D~·1) who took over.the trial at the stage of the efence d 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 hous.e breaking and stealing. ft.s. · for the appellant her defence that at the time of theft she had left work bei11g off duty was not considered at all.. She· ompleted her shift at 11.00 AM and left for home. ·According to PW1 the theft took place at 1.00 porn. the and lie dealt with the:'2nd accused through out, she is . ·. one who gave the- lr;_ey to room No.108 and dd the cleaning of that room a:rict shifted the guests be1 rw1gj :. from room 107 to room 1084 After the stolen was stolen, it is then whn the appellant came back t_o the guest has to ask for shs.1000/= more since he aq. .. .. ..... ...... . underpaid her in the morning before she left the guest house .. The one who toid her to return to the guest House to request for the extra lodging bill wBB PW3 · -. :,,.:i,.,n Mwakitalima. Actually the complainant testified that he haq_ indf"<>ri ,w.J. .... , --4 paid the appellant by 1,000/= and he paid her that money .as demanded. '--P,v2 · C 1430 D/Sgt. Emmanuel too testified that the one who was at the reception t .· the time of theft was Sister d/o Samwel, not the 1.st accused Joyce d/o Kibulaga ./:he present appellant. From the evidence on record the appellant could nr--1- 1 ":.w had an opportunity while the complainant was.tal-cing a bath for-she was not present at the guest house having left since 11.00 A.M. She was wrongly convi( , . . . ' I quash the conviction of the 1st accused th present appellant Joyce d/o °Kibulr on both counts of -conspiracy c/s 384 and house breaking and stealing c/ss ;· 14 ar, 255 of PoC. I set aside the sentence of 7 years imprisonment and 3 years

imprisonment accordinglyo I set her at liberty forthwith. Nwipopo, Judge Appellant: Joyce Kibulaga -~ present in person. Mr. Nangela (State Attorney); Present for Respondent .. Mr. Mwakyusa .. Court: Judgement delivered. Sgd. E.L.K. MWIPOPO JUDGE. 29/4/980 c:mER: The 2nd convict - Sister d/o Samwel and her surety Joel s/o Bukuku have not been dealt with in accordance with the law and the Judgement of the District Courto I'he same 2nd accused be arrested as well as her surety for the 2nd Accused to be committed to prison by the lower court as per lower court's conviction and for the surety to be brought to the lower court to show cause why his bond should not be forfeited for failing to produce the accused who was on bail when she was so required by the trial court. There is danger of eroding the courts powers if sureties and courts will be let loose to fool arcru.r·· with the court system at their will without the necessary corrective action from the courts. The lower court's file be returned to the lower for the i ·on of this order by the SRM i/c in person of Mbeya Region .. 6 ) ,! __ ~ ~ .'Sl ·f Ir-,,,., Sgd. E,L.K. MWIPOro I (' ·,,.,r i.'.i ~ -, . )lo JUDGE. I ~ . -- !,. ... ~ ( •• 1 • r:....:..-.·r.:a-.-=- ~ t· 't,-': ' . .':., _t2: i" Ji,: .· i.i:-~ ~ l .., .......... , !# ............ •~-· ,I ' . " / ··,..__ '--·1519rn ·c - THAT THIS IS A 'rRUE COPY OF 'rHE ORIGINALo --.;;,-__ .