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Judgment

IN TIJ:8 TIIQI-I COURT OF Ti1.NZ.:JHA i~~T T;~~BORA 1..PPELLJ .. TB JURISDICTION (Tabora Registry) ( IIC) CD.IEDTLL l.PFBt.L no~~ 243 OF 1989 ORIGil;LL CJ.IIITN~~lL G/$[i; NO e 122 OF 1988 Of TE;E DIS'.l:rtIC'.::1 COURT OF KlJL"J[L DL3:tJ.ICT · BDFOIGg LO .. K. rio::.:;:~ SKiIOR DISTnIC'l. 1 I,lt.GIS'1 1 R:Tii:. KISH{JITLI s/o BllIGELEo •••••••••• •." •• I.PFELLL.NT (Original lccused) Versuso TI-:G: ~~I1J:3LIC. • " • • •••• ., ••• • ••• ., err;J;SPOI\TDElfT (Original Prosecutor) JUD GM ENT., Charge g Sfoaling o/s 265 of ·;;he PEmal Code Capo 16~~ KLTITI 2 J. . . The accv.sed person, ans-.rnring by the na,me K.iSill~::IILI s/o BWIGERh but hereafter ·:;o be referred to as ·:;:10 appellant,.,.·: who H8.S in the joint t:::·:a,l of foVJ.' acci.1.sed persons charged as first accused 7 1vHh theft c/s 265 of the Penal Code 1 was at the encl of the day convicted, as chec:rgod and sentenced· to three years imp1'isonment W1der the minimum sentence 1.cto 1972« l'..ggrifc;ved, he has appealed agru.nsii conviction, contending that there Hass- ( 1) No evidence to warrant conviction, (2) that no SIIIT:w:CU Cotton was pound in 1-u.s possession, and (3) that, he had actually bought the samG as reject cotton 1 foI' 0aking low-:-.Quali ty cotton matt:r:JsSGSo The uncontrove:rtod facts ,,n'e as follows2- covering a ni],rrow oon:passo On the night of 31/11/88 P.Wc 1 COSI:J.i r'lISlJI.A a night watol.w.an 1 was on security g1.1.arq, duties at I:;}l01JGOLO ginncry, that had so employed hin;, MH0NG0LO girmory is the pro)e:rty. of .s:IL.'l~~GU (1984)0 l'..s ... tho sa;id P.lf~~l, was going aroimd it 5 a!m., 1 ho discovered that the fenco :1Dd been cutt and that soE:e Cotton had been taken through the same. With tl;l.e Ginnery. • .. Maneger_inforned a report was made to.the Sungusuhgu 1

Tind.itinial def enoe g1'0,.~p and a search of the nec:.rly ho us Gs was motmteda ii.nd from the room ·[;hat w11s being rented by the appellant, in one of the houses of the 3rd accusods bags of cotton were recovered, and hence the charges that culminated in the conviction of the appellant and acquittal of accuseds.No., 2' 3;. and 4o
2 - The appellant in defending himself, told the cowt tha.t on the 24/11/88, he loft his village to look foj: employement, which according to him, he got from .one Mang 1 oka Shija DoW~ G; only to be arrested on t:.ie 1/12/880 foNever denied giving such employeri1ent 1 nor seei115 the appella,nt at his ho1;1e 1 1101· knowing him before l'Bnor-2.lly. I think. with respect,· and without beating 2.:bout the bush, it Cc1llilot 1 credibility properly assessed 1 cll1d which wc:;.s 1 be dcn.i.ed that the appellant did tako the cotton soized,into his roorno T'LLiS is c;a-ch0rable from the evidence of P.¥. 3 who te-stified crcdi by thus z-_ ' "While at home, one peas2,11t called Kaswahili ( ls-c accused) c,c: .. ilo at hone., T'.u.o first accused. .-12,,s earring one bag of cot.·i;on.. JJo kept
_,. the ··bag ii1 his room in l,11.icl1 ho \in.s a te11anto I d.id. not a.sk l1im, bec8.t1.se 1 I used to se_e '..1irn, gct·i;ing rejected co·cton, frof:1 the ginnor-,t to prcpaI'O matresseso ~ 0 0 .... ~~. 0. 0 0 0 0 0 0. a During tl:;.c n:i.gl1, I went outs~~.cle of the b.01).sc to l1ci;:> myself o While outsicle 1 I saw tho accused carrying two bags of cottono lwcused asked for food, I ga.ve him :md retiredo !n the morning I loft for shanba work, and when I came back 1 I f o·:nd tho t:r2,di tional soctu.i ty g•.;a:rd.s at ho;:,10 n .. ~fi th -bj_3 evidence v,cr-s c:cedible it is, and considering the alibi demonstr:.:;·;;ed to be false by DoiL 6, the concludion ·;;).10,t ·i;he appellant was the one who on the 1:1.aterial night took the cotton into .:i.s room, is , ine-;,i table·. and I too 1 like trial magi strc,te so cone ludee Whose cotton was this ..... is tho Question 1 that does not see-,i to h2.-ve been faced squ.~~roly by the trial :ru~~gistrateo vfuile it is t1 1 u.e, that, H was F.W., i 1 who took tho initia;i;ive, ond put the search into motion no step was ·[;;:1lrci1, to show t>.cff';;Jie coi;ton 1 'seized under .·!~he :po'ssession and control of t:10 appellan-ii 7 __ aqtt:,3,lly l:ieiont;ed ·· to sr.rrn.=:c-c ( :!,934 )., · Tho· area the SC hc1Jls fromt is a cotton ai·ca, and could be o1Ycained ffoi:l any Quartert o'thor than tho Ginnery f 01113' to have coincic.enco inteveninge That is alright 1 as f;_1· as it goes, but ever f it is not, in oy view, it ,is a l)OEd.·0:i_o11"fro'r.i -whlch the 2,ppcllant can hardly doi,j:,·o comfort and nor celebra:ko The fact, thc.t 1 ·t·,li.e appellant operat0cJ. t.:nclci· t'..1e cover of dark..riess, only to accide11t2.llf be seen by LWo 3, his s-i;aging a f2:lse alibi, show tb.at 1 t.c cotton co;,{lcl not :1a.ve le;.:;ally bGen ob·i;cinecl at all, and the sar,1e cotton is not be3 1 ond sus;,icion, -~~hat it was illcgo..lly obtain0d, thou~~ the 01mcr Fk."lJr not be known., I would ·i;hc:;:0f ore under the au.·:;hori ty of the provisions of soction 306 of ·;;b.e Criri.1inal F1•ocedure· act 1985, find the appellant not guilty· ao ?hm:ged - of tb:cft - and set aside tho cond tion therefore, bu.t find. hir./;uilty 2.,1-xl condct him under section 312 (b) of tho Penal Code - being in pooscssion o(.proporty suspoctocl -i;o have· been stolen, or u,."llawf11lly ob-cdnod, since ho b.3.d. no rGu.s011c.1,blo c:-;:planation, tending to \ ...

-~ ..., 3 show innocoxJ.t; possession, nor instning doi..-:.bt in tb.o mj.nd8 of tho Court .I and I so oonvict l').ir.i., /ls tl:Js chant;o of conviction, rcmovec, tho appellant or .the caso or both, from the ro2,lm of tb.o minimum s.:mtonco I.ct 1972, · and as I ara not sm·o whotl1.or ·0lw sentonc.e w·ou.ld after all bo the same, . - .::.. - I am nind.oc'L ;.t;o rocluco tho oontence to ·i;hroo years impriso,'i.rnent, and it is so 01-tloroclo Tho appeal sncccwds to that e:x:·i;ont, but other wise clisr.tlssodo D0livored this 2nd day of October, 19910 ..._ •• '."- ..,; r< r "'', ' ➔ ' ·-- _ .. .,; ,,t: ."' ", .~ ,. ,~~. .... .( , . :~~::_·:t?~~\ i{&.1/1~: .:,;' r', . . '/1' \ -~~--1: ,.., ;••· I J." .-< :(~~fli ,,,.// .' "~ ~/ _,,1/;' .· ., ✓,,-·· .Appellant. .lbsont E., W o Kt.:I1ITI , ~Eo 26/8/1991 ·_t Mro .Komba State Attorney for the Republic., '-- . ~

Judgment

Tind.itinial def enoe g1'0,.~p and a search of the nec:.rly ho us Gs was motmteda ii.nd from the room ·[;hat w11s being rented by the appellant, in one of the houses of the 3rd accusods bags of cotton were recovered, and hence the charges that culminated in the conviction of the appellant and acquittal of accuseds.No., 2' 3;. and 4o
2 - The appellant in defending himself, told the cowt tha.t on the 24/11/88, he loft his village to look foj: employement, which according to him, he got from .one Mang 1 oka Shija DoW~ G; only to be arrested on t:.ie 1/12/880 foNever denied giving such employeri1ent 1 nor seei115 the appella,nt at his ho1;1e 1 1101· knowing him before l'Bnor-2.lly. I think. with respect,· and without beating 2.:bout the bush, it Cc1llilot 1 credibility properly assessed 1 cll1d which wc:;.s 1 be dcn.i.ed that the appellant did tako the cotton soized,into his roorno T'LLiS is c;a-ch0rable from the evidence of P.¥. 3 who te-stified crcdi by thus z-_ ' "While at home, one peas2,11t called Kaswahili ( ls-c accused) c,c: .. ilo at hone., T'.u.o first accused. .-12,,s earring one bag of cot.·i;on.. JJo kept
_,. the ··bag ii1 his room in l,11.icl1 ho \in.s a te11anto I d.id. not a.sk l1im, bec8.t1.se 1 I used to se_e '..1irn, gct·i;ing rejected co·cton, frof:1 the ginnor-,t to prcpaI'O matresseso ~ 0 0 .... ~~. 0. 0 0 0 0 0 0. a During tl:;.c n:i.gl1, I went outs~~.cle of the b.01).sc to l1ci;:> myself o While outsicle 1 I saw tho accused carrying two bags of cottono lwcused asked for food, I ga.ve him :md retiredo !n the morning I loft for shanba work, and when I came back 1 I f o·:nd tho t:r2,di tional soctu.i ty g•.;a:rd.s at ho;:,10 n .. ~fi th -bj_3 evidence v,cr-s c:cedible it is, and considering the alibi demonstr:.:;·;;ed to be false by DoiL 6, the concludion ·;;).10,t ·i;he appellant was the one who on the 1:1.aterial night took the cotton into .:i.s room, is , ine-;,i table·. and I too 1 like trial magi strc,te so cone ludee Whose cotton was this ..... is tho Question 1 that does not see-,i to h2.-ve been faced squ.~~roly by the trial :ru~~gistrateo vfuile it is t1 1 u.e, that, H was F.W., i 1 who took tho initia;i;ive, ond put the search into motion no step was ·[;;:1lrci1, to show t>.cff';;Jie coi;ton 1 'seized under .·!~he :po'ssession and control of t:10 appellan-ii 7 __ aqtt:,3,lly l:ieiont;ed ·· to sr.rrn.=:c-c ( :!,934 )., · Tho· area the SC hc1Jls fromt is a cotton ai·ca, and could be o1Ycained ffoi:l any Quartert o'thor than tho Ginnery f 01113' to have coincic.enco inteveninge That is alright 1 as f;_1· as it goes, but ever f it is not, in oy view, it ,is a l)OEd.·0:i_o11"fro'r.i -whlch the 2,ppcllant can hardly doi,j:,·o comfort and nor celebra:ko The fact, thc.t 1 ·t·,li.e appellant operat0cJ. t.:nclci· t'..1e cover of dark..riess, only to accide11t2.llf be seen by LWo 3, his s-i;aging a f2:lse alibi, show tb.at 1 t.c cotton co;,{lcl not :1a.ve le;.:;ally bGen ob·i;cinecl at all, and the sar,1e cotton is not be3 1 ond sus;,icion, -~~hat it was illcgo..lly obtain0d, thou~~ the 01mcr Fk."lJr not be known., I would ·i;hc:;:0f ore under the au.·:;hori ty of the provisions of soction 306 of ·;;b.e Criri.1inal F1•ocedure· act 1985, find the appellant not guilty· ao ?hm:ged - of tb:cft - and set aside tho cond tion therefore, bu.t find. hir./;uilty 2.,1-xl condct him under section 312 (b) of tho Penal Code - being in pooscssion o(.proporty suspoctocl -i;o have· been stolen, or u,."llawf11lly ob-cdnod, since ho b.3.d. no rGu.s011c.1,blo c:-;:planation, tending to \ ...

Kiswahili s/o Bwigele vs Republic (HC Criminal Appeal No 243 of 1989) [1991] TZHC 2672 (26 August 1991)

Judgment

Discussion

Kiswahili s/o Bwigele vs Republic (HC Criminal Appeal No 243 of 1989) [1991] TZHC 2672 (26 August 1991)

Judgment

Discussion