David Kapisah vs Republic (High Court Criminal Appeal No. 35 of 1989) [1990] TZHC 462 (17 September 1990)

...... MWAIKASU 2 J .• APPELLATE JURISI;lIC 1 .l:ION ( J,IBEYA Rlill ISTRY) IIIGil COURT CRrnrn1L APPEiu, NO .35 OF 1989 Original Criminal Gase No.114/86 C/F Cr., Appeal Noo36/89 of the Distriot Court of Sumbawanga at Sumbawanga., .. BEFORE D.,A. MLWALE 9 Esqo DISTRIC'J. 1 NAGISTRATE: DAVID KAPISITA • ~ - • , • o ,. , •••• , ••• APPELLANT Ver'sus THE REPUBLIC •• ·; ••••••••••••••• RESPONDENT. JUDGEMENT The two appellants namely DAVID KAPIS:3:A@ PASCHAL standing as the 1st appellant and one i-JOEL s/o SIND.ANI,. standing as the 2nd appellant whose · appeals b,ave consold ted were jointly ch3rged before the low court and got convicted of the offence of stealing by servantj involving a sum of shs.65 9 O0O/=, the property of Uzia Primary Cooperative S◊ciety 1 a specif:L.e<i. authorityo A~ thus the offence fell under S. ,2(d) of the M.S.,.Ao 9 1972 1 the two. got sentenced to ihe minimum term of imprisonment of five years. It was upon being; disatisfied with the judgement of the lo-w:er court that each appealed to this court'e The only material ground for impugning the judgement of the lower court .! • by the 1st appellant :i,s·· that at one time before the money wt34 <iiscovred .·,, .. missing from the village safe, that is, on 9/3/86 9 .the econd. 'appellant · had takeri out· the iribney alleged t'o have been si;olen from the village safe 1 while there wa.s. a:ULiiting of _t.he Village coopo ·shop and ·if mus\ have been when the ·money was in his hands that it got· so stolene .. ,, ' O the. other hand, the. appeal by the 2nd appellant.· is cexitred on two grou?.1ds 9 frst·· that the. cmey wa.6 stolen by the ls:t. appe],la.11t while lie_. was himself on safari when the 1st appellant is said to have taken the duplicate sa.fe key which the 2nd appellant was keeping 9 from the. iq· p.p.ellaht 1 ·s . . . . young brothe::r::9, one Pter Sindani from his hor.1e (2nd appe).\ant 1 s) 'and9 secod~ that the. low~ court denied. .hil opportunity to cal· his only defen6 e •witness he. itl.t.e.nded to ca 11 9 one Pet or Sind.ani i ]l;.~ young b;rother o .. I.' .

i -· .• ,, I · . From. the'( record· of thi:i lower .court .it 1s c.lear that at the time of the incident the h,t. appellant wa.s th~ .Accountant of Uzia Village -: , . ,. gov.Elrrunent j wl1ich under the Local Gov-eri:unent · ,Act 1982 9 . _ ,... t is. a· multipurpose -pr'imary .. Cq<:>J)o ··so~ety •. The 2nd appellant was then a committee member o:f the village prirny Cop- Societyo ·::1~ is b·esides the· · . one w4o · · · , . , , .. . 9 lat ,appellant',Lhad been entrsted -ne.:of. te,two safe keys to 'the village ·safe "The other key was kept by the is;c appellanto The sde could not Open S?),Ve by the combinatio,n of 'tlie two keys., I_t was therefore e:Xpect·ed that whimever ·the safe wa.s to;-be -opened the custodians of ei:f;her of the keys·-: the two .appellants had to 'be"presnt. or their substi;t;utei:1:;to whom'. the keys had :t<? 'be hanq.p.. . when on sa.:fa.r i j . by ariy 9f them o ,.,, . Ther is no dispute that 011 9/3/86'.J whert, the village shop was beit:ig ited by the 1st ·appellant and other committee members of whom one · 1 .. :· IIALFANI SEFU (D.W3) W/JS one;. ,:'.en ti;1t _o()()EJ.~~b. the. 2nd a.ppelant too out from the s,afe the. sum of shs.65 9 000/= -tla w-a~--suposed to. have been in . ,. the village safe and wnt to· keep. it· at his-.home until the a.udit{ng was over.o . When that ;as over;9 'a.f:' testifie~ by the 2nd appellant and confiI'f!lecl. . ' by the· D.o\f .j? on~ :IIALFAlff SEFU 9 tl.:..e 2nd ·Dpel{ant :,;et'tlI'ned' the··money :to the:' / I 1 . • . ', : • •• • : (, ., :• . • •• •· ", • ••, • ,;. /_,' ' . ,' (-4- • • , village ·safe·ai'ld:the same got-deposit.ed in the safe.in the pri:'.l,s·ence of the . . . . . _- :. ~ , ;. . .,., . '; . . ' . ' . ;· . ' . :1st apJ?ellai-;it 6nly·j as the .. D.,.'.J '3, was able. to· see the 'bag only in which· the · ' ' .. , _:.... t . . ' ' . . .: . . . . '• _'. ·, . . - ••. ' ~ ' 2nd appellant had kept .. the.·. money.. Both· cJ.:t,, the t irhe when tl1e money,- was< so tken out' of the'' safe'' aiJ.d. ;etu,rned la.t'ei'. ;1-::- tL-· s~~·--d;,J''.(t; · was :rioii' counted . . . . ·, •,• . . ' :· ., . . t w;· however the allega:tion of tho 2p.- appellant i_n 1 liis· defence t-J.iat· .· while h.e was· on Jafari. prior· to. the day .hon the .. 1os··.;w6s· d.isbovered the. ell ant . . ; .. .. . ' ' ' - '· C . ' . lstPP · _ had, be.en c1t hi hom·e (2nd a)p0ll-ant 1 s) aid, took tho·'key h'C: .was. keepini-:from ;!ii, :'f(lUl'lg t1l:Other • !=) Pe;t er:. Sindani 6' · It , w:as then his con-t;.ention that ._ ·.. . · · . . · . · ,_ -'· · that 1 was .the. tiWe. t,11e 11;. accused stoe· tb6 money ... Ona;:the other. i,J _is the 1st a.ppelli:l,nt 1 s a11e:gafi6n 'that whcu th6:2nd-accused .:r.t.urned. to :ther·se • , , , , 1 • • ' ' " l t • ' . - •. after ·theu au9-}t work lle sir;iply asked. 11:im· thj;t''.··}hey shoul,¢ go to· loqk the safe as he had alrea.a; dposi t'd tl~~- on'uj{9 0- that '·i-ie <}id, :o.ot chpk h-ether ' ,· ' r , , , ' , • .'· ' • ; ·. . the money had actually been deposited" in the safe,:or nci:t, •... . , ; • • , r • ' , . ' I '. Yet.':when the 2:ri:d appe:Uant ws given°'opportunity.··tq.·pl'.¢U.ce his defenc , • ' • .•.• _: .: • • I~'. I • . • • •. , !,-• w_itness. the said ,Pet.er Sindapii when their d)fence ca.se was t,o. ¢-Qme .up:¥·. 28/1/88 aftX: .. ~~~ prosutin had' c'losed -'its' c'ase on 20/1/{38?. 't\te 2nd " " appellant failed ·to bring hi \ii:tness:,. ·while· o·ne ITaifani Sefu (J) oWa3) ' . . . - ' . . . . . . . ' -. . . . ' . called _hy the. lt appellt appearedo · jo• rea:seri,,was:aq.vauced.,tor sch. non-app_eaxanp_,(;l · :of the said' ·Pte:t' Sindai-; ., th cas'e 'h§id·.~hen,. to .. ~~ , . ,, .,. -· . . - adj_ourned to ']..7l2/88a fo:r;·:;2nd. appellant',s'·sak't to:':'gi-V.e iqt more ime, to procure his de;f'enes witns '.rhe 2nd app'eJlal'~t was all the ti]ll' Q.n bailo .. , ·"" ,:. ✓ -~ih ,·i..r!·

= 3 = Again on 17/2/88; the 2nd appellant could not produce his only defence witness and could not advance any reasons for ;.iis failure to procure himo The lower court still extended its patience f_or one more rr,on"Gl1, to 17/3/88, but Peter Sinda.ni could not yet be procured 9 and no reasons were advanceq by the 2nd appellant o It was then pleaded. by the 2nd appoll,rnt tl1at he should be given the last opportunity to truce his defence witness anS that was accordingly granted. ·J:he cuse was tllei1 adjour1ed to 18/4(88 9 when the 2nd accuse_d finally pleaded t:.iut 1.ie l1a.d friled to find llis witness after which a date for judgement had to be fi):edo It seem to me that the 2nd appellant was then simply buying time. for lle could hot say where his young brother the witness a.waited for had gone 9 or stat11 any reason for not !mowing his whereabouts. It follows therefore that the 2nd appellant's allegation that he lwd been denied by the lower aourt apportunity to call his defence witness one Peter Sindani 9 is te':tally unfounded a11d is hereby accordingly rejected as mere cqncoctipJ10 In the light of such state of evidence before the lowcl: court no reasonable judcia.1 tribunal would have come to a conclusio other tl:ian the one reached by the ower courto I am therefore fully satisfied that tl10 two appellant were justily and properly convicted of the offence charged and therefore ther~ is no being cause to their convictions and sentenceLcalled into questiOtl,. T~ appeals are therefore dismiss.tad in their entil:ety1, R .J .:l. MWAII<ASU C . t ' ,r