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Judgment

.... ., !IHARGE:- IN THE HIGH COU"R.T OF TANZANIA AT TAlJORA APPELLATE 01:JTIISDICTION .:,. ' ,• : • '~~\ r '. ;• ( Tabora Regi st~~y) .. ' .... , J· .. ' .· ... ''•·'. (HO) CRH1IT{AL APPEAL-NO~ 48 <Yf:1982 o/f 36L8a · OilIGINAL CRH'IltrnL CASE NO. 9 2/81 OF THE DISTRICT COURT OF NZ3GJt'::.;nISTRICT '. AT NZEGA . B"SF011E: Z" I-IOUALr::·J Js q_,, Pl.II': CIPAL DISTliIC~ IVIAGISTR- T W1\ HA MPLLI ••••••••••••••••••• :! ;• •• ~ , ••• APPELLANT (q:r_-igiral Accused) VERSUS THE REPUBLIC •••••• ~ •••• - •••• , ••••••• , •• RESPONDENT TE (Or 1 iginal Prosecutor) .·, __ ,. . Stealing c/s 265 of the Pena:1, Code dap. 16 Vol.l of Laws. . ' ' : ·'.RUBAlVIA I J.

. ' CBiRLES s/o M:SAMI and TWA HA MPILI wer~ to,~~et·he±. with· three others ·' ., . . . . ,.,.•,.i:·s.·. -·:-·. . -- .,. -· .,~~-i • · .. , jointly ch"lrged with~:c:tnd·, convict'eci of s~~e9-ling c/sntss.·· of the Penal: __ ,:_ ' " ' + \ ·· t .. . .. i :.,. ··. i~~".'l . Code. Ch':l.rles Msami was .t heil:""sentenced to thr0e Y'ecifs'·imprisonment:: , . •' •, , .. , "'' .. ' ·_ ·.. . . . f.' 'i """ '.' .. :) , ., while Twaha Mpili w3:~~--:sentenccd t'o 13 mo~~ths imprisc-'c'lffi'ent. I ~~lowed: • • .1.• the appeals of both.9h0rles MsaH1i - and Twaha MJ?i1i·.;o'n''-trhe hearing dq..te .• ~ I quashed the conviqti,ons ") •• ,••f; .• I ·: . - ·. · ,- :' · :;,arid set aside .the sentences_~ I further ordered that the o.prellt s be set'' free _at once unless they were lawfully held on other nntters, I now give my .re'asons. The· proseon.tion caae in short is that the a::1pellants had' nred a motor vehicle to go -'lrld cg_rry rui ew7,ine from Malolo village on 4/6/81., They,together with others,went to the village and m'l.:rnged to load the engine ::mt . .b.e motor vehicle registration nwnber T:S 3328. The interve~ - ntion of the Malolo Villagers shortly afterwards foiled the theft, Mr. Kwikima, the learned defence counsel for the 1st appellant pointed out, and correctly so th8t the trial magistr3.te hqd heavily depended on the evidence of a co-0ccused in convi'cting the appellant. Further, the trial magistrate had depended on the evidence of the owner of the hired motor vehicle. Mr. Kwikinm submitted thr::1t this owner of the {Ilotor vehicle should have :J 1 3en tnken 3.S nn e.ccomplice. Examining t ..;.
. 2 • the evidence, I find th9.t t:he trial oourt should have found the wi tne- ss an accomplice. He was in +.:;,s .. motor vehicle throughout and must, judging by his conduct, have known whtJ.t they ·11ad set out to do. In !act, the owner of the motor vehicle .h:1d Y-cm ioie to the extent of cheating his driver :·1s reg·1:r.ds the desti.n:1tion, when the motor vehicle got hired. Mr. Kwikima subc,i tted f ;irther thQt the trial magistrate had not warned himself of the dcin(:;ers of o.ctin·,; on the uncorroborated evidence ofra_ccomplice. That the tri:::i.i ·n;agistr1.te did not onl,. wnr,n himself of this danger but also did not appear to have been aware• that he was hea- vily depending on accomplices evidence: ,iq-r,very c1.qar. This ll.a_pse was a Gerious _one. Mr. KwikiQa furhter submitted th-'1t the trial mngistrate did not bother to -examine -the defence of the 2ppcl:1'1.nt. The r.:1i:pellt: :~~c:,.gl_;~~ given an alibi. The oriticimmr~~by the learned defence cow1sel is supp- orted by the record. Apart ... f1:01_ntle __ 11Ei-9-1io.n of it in the judgment when the trial magistrate was outlining the evidence beforG hiI,1, the magist- rate did not evaluate it o.t all, The court only disr isseo:-':t-~~idence out of hand. This ·WQs· ,'1n~~ther srioue riiidirection.' M'r. Ch-':tila, the le.3rned St3,te Attorney in not s 1 ,Dporting the conv- ict ions ~~bscribed to 011 · the o.i~~gumcnt s by the, de~~e.ooe counsel;" 'He . ; ; ; added that the case had been l]oorlj in;.s3t:isnted wa.° Jrosecuted and tmt it resulted in confusion. I '.J.J' in full :.J.grcor.10nt vritli the observations ofthe learned State Attorney. For the serious misdcrictions by- the tri.9.1 co1.:i.rt, which misdirecti- ons are not cur1ble, I allovved the np~~1eal '.l[sainst the appellant. 2/12/82 Co~~r~: -nUBAHA, J. Mr. Chaila, State jttorno~t for the,Repul>lic. Appellants absent.· Judgment delivered, ,· 2/12/82'' :

Judgment

. ' CBiRLES s/o M:SAMI and TWA HA MPILI wer~ to,~~et·he±. with· three others ·' ., . . . . ,.,.•,.i:·s.·. -·:-·. . -- .,. -· .,~~-i • · .. , jointly ch"lrged with~:c:tnd·, convict'eci of s~~e9-ling c/sntss.·· of the Penal: __ ,:_ ' " ' + \ ·· t .. . .. i :.,. ··. i~~".'l . Code. Ch':l.rles Msami was .t heil:""sentenced to thr0e Y'ecifs'·imprisonment:: , . •' •, , .. , "'' .. ' ·_ ·.. . . . f.' 'i """ '.' .. :) , ., while Twaha Mpili w3:~~--:sentenccd t'o 13 mo~~ths imprisc-'c'lffi'ent. I ~~lowed: • • .1.• the appeals of both.9h0rles MsaH1i - and Twaha MJ?i1i·.;o'n''-trhe hearing dq..te .• ~ I quashed the conviqti,ons ") •• ,••f; .• I ·: . - ·. · ,- :' · :;,arid set aside .the sentences_~ I further ordered that the o.prellt s be set'' free _at once unless they were lawfully held on other nntters, I now give my .re'asons. The· proseon.tion caae in short is that the a::1pellants had' nred a motor vehicle to go -'lrld cg_rry rui ew7,ine from Malolo village on 4/6/81., They,together with others,went to the village and m'l.:rnged to load the engine ::mt . .b.e motor vehicle registration nwnber T:S 3328. The interve~ - ntion of the Malolo Villagers shortly afterwards foiled the theft, Mr. Kwikima, the learned defence counsel for the 1st appellant pointed out, and correctly so th8t the trial magistr3.te hqd heavily depended on the evidence of a co-0ccused in convi'cting the appellant. Further, the trial magistrate had depended on the evidence of the owner of the hired motor vehicle. Mr. Kwikinm submitted thr::1t this owner of the {Ilotor vehicle should have :J 1 3en tnken 3.S nn e.ccomplice. Examining t ..;.
. 2 • the evidence, I find th9.t t:he trial oourt should have found the wi tne- ss an accomplice. He was in +.:;,s .. motor vehicle throughout and must, judging by his conduct, have known whtJ.t they ·11ad set out to do. In !act, the owner of the motor vehicle .h:1d Y-cm ioie to the extent of cheating his driver :·1s reg·1:r.ds the desti.n:1tion, when the motor vehicle got hired. Mr. Kwikima subc,i tted f ;irther thQt the trial magistrate had not warned himself of the dcin(:;ers of o.ctin·,; on the uncorroborated evidence ofra_ccomplice. That the tri:::i.i ·n;agistr1.te did not onl,. wnr,n himself of this danger but also did not appear to have been aware• that he was hea- vily depending on accomplices evidence: ,iq-r,very c1.qar. This ll.a_pse was a Gerious _one. Mr. KwikiQa furhter submitted th-'1t the trial mngistrate did not bother to -examine -the defence of the 2ppcl:1'1.nt. The r.:1i:pellt: :~~c:,.gl_;~~ given an alibi. The oriticimmr~~by the learned defence cow1sel is supp- orted by the record. Apart ... f1:01_ntle __ 11Ei-9-1io.n of it in the judgment when the trial magistrate was outlining the evidence beforG hiI,1, the magist- rate did not evaluate it o.t all, The court only disr isseo:-':t-~~idence out of hand. This ·WQs· ,'1n~~ther srioue riiidirection.' M'r. Ch-':tila, the le.3rned St3,te Attorney in not s 1 ,Dporting the conv- ict ions ~~bscribed to 011 · the o.i~~gumcnt s by the, de~~e.ooe counsel;" 'He . ; ; ; added that the case had been l]oorlj in;.s3t:isnted wa.° Jrosecuted and tmt it resulted in confusion. I '.J.J' in full :.J.grcor.10nt vritli the observations ofthe learned State Attorney. For the serious misdcrictions by- the tri.9.1 co1.:i.rt, which misdirecti- ons are not cur1ble, I allovved the np~~1eal '.l[sainst the appellant. 2/12/82 Co~~r~: -nUBAHA, J. Mr. Chaila, State jttorno~t for the,Repul>lic. Appellants absent.· Judgment delivered, ,· 2/12/82'' :

Twaha Mpili vs Republic (High Court Criminal Appeal No. 48 OF 1982) [1982] TZHC 392 (2 December 1982)

Judgment

Discussion

Twaha Mpili vs Republic (High Court Criminal Appeal No. 48 OF 1982) [1982] TZHC 392 (2 December 1982)

Judgment

Discussion