Watson Shilla Sangaulenje vs Republic (High Court Criminal Appeal No. 177 of 1990) [1991] TZHC 2391 (19 July 1991)

MCHOMma J. IN '!BE HIGH COURT OF TANZANIA ATMBEYA APPELLA'm JURISDICTION (Mbeya. Ra;3'i.stry) HIGH COURT aarn:mAL APPEAL NO. 1.77 OF 1990 (Original Crbina.i Case io. 183 of 1990 of the District· Cotn't cf ?.fueya. District at I,TIJeya.) BEFORE& D. J. S. IC:.\SJXAZI - D.M. WATSON SHD.,LA S.!INGAULENJE •••••••••• APPELLAMT Versus 9 BEPUBLIC •••e••••••••••••••••••• BESPONDENT m)aIDMENT '!his is an appeal by Watson Shilla Sanga.ulenje against the oonvioti)n entered against and the senteno 1 1 passed up6n him by the Mbeya, District Court in a. oha.rge ef Theft Cont .rt:Uzy ~o Section 265 •f the Penal Code., He wa.s sentenced to siX ~a.rs imp:: ~stnment. Evidenoe,t•r the proseouti.on is that on 4/9/89 the a.ppellcnt 1 ~dgcd s.t the complainants Guest Hou·H called Ma.jeng.. On 5/9/89 he left his ' room without bidding ne :fr·.rewelle When the· .wners of the gue"'+ ,.. - . cbeoked they found 2 mattresf'3s, eight bedsheets. anQ. !out' blankets niissingo Five months later the a,ppel:..1t came e..nd lodged in the same guest house. 'rh.8 ewners who knew hi:.i re: red him to the Polioe. The a.ppellnnt escaped ·.. ; wb.en being an-ested and t:· i :)olioe hrul to do some chasing to arrest him. The earned State Att,rney did not support the conviction. He wa.s justified in doing so. rr,ne of the :stolcm property was found in the appellant• s possession.· It is allci:;0d 1.io ap::;,ella.nt left his room· ee.rly but there is no evidence that the other lodgers did not leave early as well. Guest Houses usually have nig.1,t gua.rds. W'o :ire not told if this one had -one or not. And. i:f' it boil ene where was he till somGone left with suah bulky pr.1perty. If he t-ras thJre he could be the ono who stole the property after the lodgers ho,d loft the rooms. If there was no guard, a.ny,.lodger other than the appelLi1t ma.y have tcloon those goods and left. The appellr.nt dc:· ied te ha.vo lodged at that guest house. As the Lea.med State Attorney submitted the register of guests •r the re~~~ issued to tha appellant ( cy) after he paid f4r his boarding ~· tendered in court to dispreve the appellant• s defence •f -an alL ... The,,trial magistrate was biased by the appellant• s bad record of having several criminal oases :pendi.."1€;. :But there is enough doubt that the appellant did not commit this-particular cffence • ••• /2 ,-- ·---

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• 2 - . The trial magistrate' s r::axi::ium powers oJ sentc~~c,:i for an offenoe not under the Minimum Sentences Act, 1972 is five years imprisonment. Su he acted u1 tra. vires his powers by sc:1tenoing the appellc.:1t to six yea.rs .imprisenment. :Be that as it may the pToseouion did not prove the appellant guilty a.s req:uired, beyond. reasonal?le doubt. T'JJ.erefore I allow te appeal, quash the oonviotion and set a.side the sent<: ~1ce :passed agair.st the appellant. The appellant is to be set at liberty inunediatcly w1lcss held for some other ,...,,,-: ":":--:--:"· :--:-,..... la.wtul oa.use • ,,.(.';.:, ~ ; n 't" ... · , .. /'c.'.'J 0/:- ·, ,, l'. /·0 - // ~ !· "t' , '. ~~ , "' f : · rJ - MCHOMEl I ~ ~ \ II:. ITTIDCJE t ~ ,·?:. 9/7/91 ~ / ~/. - "- ·-. ... /. 'IJP,M/JJM ~--- " . -- :: ~;.;-. . .;,:.- ........ .