Stephen Kihakwi vs United Republic (High Court Criminal Appeal No. 89 of 1990) [1990] TZHC 93 (19 December 1990)

IN THE HIGH COURT OF ,Tt.NZANia AT :UAR ES SALAAM AFrELLATE JURISDICTIJN HIGH COURT CRIMINAL !.?PEAL Nv ;,9 OF 199·, ORIGINAL CRIMINAL CASE NO. 199 OF 19S9 OF TIE DISTRICT COURT OF KILOM.BEno DISTRICT AT IFAK.l'.RA( BEFORE C.A. KC1fi3A :1ISTRICT MAGISTRATE) STEPHEN KIHAKWI ,, ••••.••••••••••••• APPELLANT (OR!GINAL ACCUSED) versus THE UNITED RE2UJ3LIC • • •••••••••••••• hBSl>vlfLJENT (ORIGINAL :i?RJSECUTuR) JUDGMENT Stephen Kihakwi wae convicted by the District Court of Kilombero at Itakara of the offence of stealing by servant and sentenced to 5 years' imprisonl!lent. lfoi is appealing both against conviction and sentence. The evidence adduced was that the appellant as working for K•TACO as a driver. On 1.9/3/09 there was a theft at KOTiiCJ and Samwel Kanegene PWI 9 who was the KuTACC Security Officer, found a erou? of workers woJl.der1:ng --,, something. bamwel Kanegene was informd later thtit evtY sacks bad been stolen and that the appellant was selling empty r:2.01.rn. On 1/1')/09 the house of the appellat was searched but nothing incriminating was found in it. However in the compound of the house of the aprellant, sorae ten paces away from the house of the appellant w0re found 1] filters and,two empty sacks. All these belonged to K:)TACO. The appellant wus arrested and was being takl3n to Iliugete. f:rcm KJTACO when· he tried to escape. ··efore attempting the, escape, the appellant had told ?WI and all thosa with h_m th.st -½he second accused , had given tho ppellant these filters. The cocond accused was acquitted at tha trial. i'W2 Yotamu Ialya, a driv€!r of K-JTAC.::• said that he witnessed the earch of the house of the 1st accused now the a,tipellant. Stolen property ... ,.,)und inside the appellant I s house• nut so .. e ten paces away from the hoUSt> --., fund empt.Y saoks. Then while beirg taken to KOTACJ offices the appal ... PW 3 laeki!n away but was re-arrested. missing, · ,:i., th'3 stores officer of KS TACO found 15 empty sa,cks :t~ lus defence tha :t ..... used to worl. for KOTJ1.CO as ·a acuso,d who is -tl-.e appellant now said that he safari to I • ... -l'.'lr driver • .:::n 2n/9/n9 he had gone on rh€a and he arrived baok clay tho securi t . . ' Mugeta on 29/9/09, The following , t officer and his cell leade. hoaae in order t · ,nd other people came to his 0 search ito Nothing incriminati But at the ba · was found in the house. was nana P\antations so:;ia filters. were fouhd, from the house. Th, ➔ a...,"cl1:.1J·t '-:,· .i:'i ;.,;J :,;1:·,,':.",' _ '.'Qme seventeen paces ., w~ cf th·,:. "'n +l • ,. , ::yina • ,:: . ,;s .

2 that he was with another person residing in that house which he hd rente.d and that he never told them that the second aecused had brought the stolen propertyto him. In his judgment the learned :District lviagistrate found that the stol'en tilters were found in the apellant's oomound. He decided to accord no weight· to the alibi of the _appellant that he was at Iringa on the materlal day saying that no evidence to prove the alibi had been given. At any rate the learned Magistrate said that th0 appellant had the opportunity to eommit the offenoe because he was in Mugeta at 2 p.m. on 29/9/09 and the theft took place in the night of 29/9/09. He fou.nd/J&aJne else oould have stolen the said property except the appellant who was found with the stolen property in his oompoundo He convicted the appellant as charged and sentenced him to 5 years 1 ifilprisonment under the Minimum serttenoes Aot 1972. In his petition of-appeal, the appellant has eanvassad two main points, These are thr.t the mere fact that the filters were found sowe ten paces from the houar where he lived did not lllean· that he was the only person who could havo taken them there, and that it was not conclusively roved that the said filters belong3d to KOTACO. The learned S_tate Attorney submitted that the conduct of the· appellant ·of tryirtg to escape compled with the discovery of the stolen property only a few paces foLl his house is evidence sufficient to sustain the convictioa. The evider.ce against the appellant is that the e.mpty sacks and fil tere were found hacrdly ten paces from the ho.use in which he lived:• The a.ppellant is said to have told PWI that it was the second accused who brought the stolen it&i.ie to himo The appellant is also said to have attempted to esoape but he was recaptured~ The appellant denied telling .?WI that tho 3tolen property had been brought by +,he second accused. He however saicl nothing about his attempt to escape. ~he learned trial Magistrate found both facts to be true. I see no reason to differ from this finding of j:cts. There would be no reasonable for ?WI to tell the court about these 2 facts unless they wee true. Indeed the appellant never controverted the atterapted escape and simply denied that he mentioned the second -cused in connection with the stolen property The appellant has raised in his petition of appeal the issue of the identity of the owner of the property found ;1ear his home. Thia need not bother us becaus, the appellant never claimed that the property was his and not of the KOTC0. The evidence given on the matter was enough to show that the property was of KOTACO since there was no claim of ownership by anyone else. Since there was no dispute about the ownership o! the property, the evidence given was enough to establish that it was the property of KOTACO. ----/3-

• 3 - The real isoue here is whether the evidence in its totality, that ia to u.y, the proeecution oase pitted against tha defence caset oan he said to r suffice to sustai,n the oonviotion. The learned trial Magistrate found it to be enough. I agree with him for the £allowing reasons. By uentioning the second acoused as the person who brought the property· there, the appel\811:i was, ao it, were, Gayng that he was aware of the presence of the stolen property in his"compound. Secondly by trying to escape, he was exhibiting a oonduo_.t of a guilty peroon in the cil'cui:istances of this ease·. Therefol'e, although the property was not found in his house but only rtear te house, it. is olear thut t.he appellant had something to d.o wi·th the same. The dootri•e o:t ·feeent possHssion would appl.Y here since hardly a day passed before the_ stolen propert;r was located at the appellant I s -premises. I would there tore uphold the oon·viction in this case. With regari to sente1'hv, the learned Magistrat8 found the offepce of which the appellant had been convicted to be a scheduled offence. With respect to tne learned Magistrate 1 I disagree be.-,ause no where in "ihe e,vi4,s .. ,. is it mentioned that KDTii.C0 is/lspecified autho.r-ity. The lear.ned Magistrate . therefore took.into cortsideration wrong facts at ariving at the sentenee O: five years. However, since the value; of the stolen property was estimated at shs. 3-7,675/- ac'.)ording to the charge sheet '1. sentence of five years imprisonment wuid not in wy view he excessive. I would therefore uphold the sentence of five years' imprisonraent but for different reasons. The sentence which requires confirmation i.s harebl .. 9.P.nf.iJ:Xlle..d. •. J'!le appeal 1s -----···· ~ ······-- •. there.fte ·dismissed in its entirety. ( .,.-- _:----·: . c..~ .. ......--, A~ ABATI : JUDGE DAR ES SALAnM 19th December, 1990 Cou,rt, Jud 9 1aent delivered ,/ .... --: ------- - ··- ·· - -····--.__ 1 llirs Silaa for liepubli• •. . ... ---- -v--- ·--~ A. BAIIATI JUT.lGE •