David Mwaikola vs Republic (HC Criminal Appeal No. 69 of 1990) [1991] TZHC 2244 (10 July 1991)

IN 2Th HIGH CODRT OF T.NZ;NL. ;.T MBiY PPLL J1TaIDIC 'rtON HIGH COURT CiUML.L .PPiLL NO0 69 0? 990 (oRIafl.t1 crnnL.L c$2 NO. 4 OF 1989 OF TJE DL3.ICT COURT OF MB1Y.. DI$TiUCT T iBEL) BE]O.E: BILIGL Ebg. 3IDT MUI'EY DSv:tD MW.ICiL. • C. a • . ..0 1PPELLJT VRS. JDDaIc T M3EOT - EM ( E. The appel].an- t David Mwaikola. was ohareed and convicted of stealing by of the Ponal Code by Mboya ]itriot Cour& (Bilogeya, RM) and wasLto pay a. fine, of e3.ght thouaand ehullgi3 or twelve months iinprisonmext in default thereofo Tha appellant faile4 to pay the fine and' was imprisoned, He is nor apea].ing against conviotion azd sentence. It was oommon around at thô trial tat on 6/11/87 one Yona s/o Sa.a 1 ganda (pwi) entered into.a sale a,resment with cne Oaalfan Zafu in which the said Thalfan 8aAt agreed to soil to Yia Salanda hihLnd :ckver Rego Na. 8773 ,, at sb.550,000/. It was, agreed by both putiesLthe aiode of payment would he in cash and in instalments and the first .istalmenl of sh,1?X)pOOO/ was to be paid on the day of the agreement. The 2nd instalment of sho 2000O0/r was to be paid on 15/11/87. Evidence was led to the affect that the 1st li-istalma, of eh.100,000/= was promptly paid on to agreed date to Thaif an but the 2nd, nsta1nt of she200,000/= was not paid cn the agreed. date due to the fact that PWi foil stok on 14/11/87. It was common ground at t].e trial that there was an agreement between 0 and ICaalfan $afu that as Thalfan w&s to travel to D$alaaxn n November 1987 PW1 should pay the 2nd ins'alment of i3h 0 20O0OO/= to the apPGlla- who was an agent of the said I<Jaalfan. ffwover on 15/12/87 when PT1 went to the appellanta house to settle the 1ai instalment ho could npt find th appellant but IGialfan 3afu and on tande tng sho250,000/ to Thalfan the latter refused to accept the samo on the grcund that B'T1 had failed to refliiZ the 2nd instalment to the appollant& After two days when the appellant was contactod, and asked foi t4e wheroabou ef s]i200OOO/ he stated that he had, handed the money to his principal Iatft'n Safu. The matter was reported to police and the appellant was charged at 6 convictedo

• 2 - I have cone 1throuh the recoI'd and.it is s'uprisin&, as rightly conceded by both counsel why the said Kha1far Soif was not :callea by tho prosecution to oounter the allegation by the appellant that he handed oitei- the 2nd instalment of shs200,000/ to himc it is also apparent from the record that this Khalfan Soif never oien made a statement to the polioe to state whether or/n received the 2nd instalment of h.200,000/z= from the appellant* ifter due onsideration I have decided not to regard this verdict as safe and infact the Leamed State ittoney MI Mbiso was not inclined to suppqiu the coflvlction. h4ccordirily I would and do Lorahy allow the appoalp quas]a the conviotion and set aside the sentence xnuosod by the district cour1. I direct t appellant bO sot at liberty forthwith unless he is I 'r- .'2 othei'.inp - - ieon in connection 'with another .LaWr.i cause. T 11 Mshote. b/u PiINCIP.L L$IDT BLXISUCLUE (E.J.) \