Matiku Nsesela vs Republic (PC Criminal Appeal No. 15 of 1982) [1982] TZHC 389 (1 December 1982)

-' IN THE HIGH COURT OF TANZANIA ~ AT MWANZA APPELLATE JURISDICTION (PC) CRIMIWlL APPEAL NO. 15 OF 1982.- (From the decision of the Distric•t Court of Musoma at l!usoma in Criminal Appeal No.· 39 of 1981 - Before M. U. J. Minja, .illsq., District Magistrate= and Kiagata .Primary Court Original Criminal Case No. 45. of 1981) ' • i/ MJ~ TIKU Nt:LWS:.i:LA. • • ••••.•••••• • • ••• • ••••• • • • • · •• • • • • ••• • • •·• • ••• • 1-u?P .illLL1iNT VElllilJS ' THE REPUBLIC..• • • • • •••••••• ,. ••• ~ ••• ; - •••• •-• •••••••• • •••••••••• .RESPOND.illNT CHARGE: OA.TTI;ll. TH:WT c/ss 265 and 268 of the. Penal Code. J U- D -~ M E N .T MUNYERA 1 J. s The appellant was convicted of cattle theft before Kiagata Primary Court of Musoma District. It was the prosE;cution's case that on 27/4/81 u.uring the evening the complaillllnt (PWl) discovered that one of his cattle was missing. He started looking for i1;. The next day he was L,formed by one \iam·bura Yakwe (PW2) that accllsed No. 2 Marwa Mwita (not concerned with this appeal) was in possession of a heifer which was net his p-rt1perty. Marwa Mwi ta was contacted and questioned. de st:t;ed thut he had sent the heifer to il'1atiku Sensera, the appellant., The complainant, in co;;,paey with Marwa l'iwi ta and other people went to the appellant and found the stolen heifer in his herd. •rhe appellant together with l•larwa l\1wi t1J and another person ( 3rd accused) were ch::irged jointly for steali15the heifer. In his defence the _appellant denied that the heifer was found in his herd and brand.ad those who saicl it was found there as liars. i:le calle.d one wi tnesa (DW4) who testified that the heifer was in fact found in the herd of one Timoni Mh0r0 nc-t in the appellant•s The trial court heard all the evidence and came to conclusion that the heif0r was follnd in possession Cl£ the appellant and not otherwise. The court also accepted Marwa Mwi ta (accused No•.· 2) .'s story that he had sent the heifer to the appellant. These two were convicted while the 3rd accused was acquitted.. The appellant's District Court appeal was dismissed. He appealed further to this court. He still maintains that the stolen heifer was not found in his 4rd. That the court erred in accepting lies. If the heifer was found in possession of another person as • '' the appellant put it, there was no reasons why the villagers should have planted it on him. The trial court reached a correot finding that it was found in the appellant's possession. Since it· was sent there by Marwa Mwi ta ( 2nd accused) the appellant had reason to beli-eve that it was stolen. What I can see is that the trial court erre_ in \ ,.,-;-::::·:;:;:-;~~ 1 ·nv.i:ing the appellant with stealing the heifr, having fun~ that -/;. o__:.'-'.it __ w.?. -.ent there by the 2nd accused. I set aside the conv1-ct1on of Y ..,,,.., cattle, j)ieft and subs ti tu te thereof the one of .recej ving. I set ·, r---- _',ast.de -tti;sentence of five years imprisonment and substitute thereof . ·.!! ,'} -'-~~~~~ne {;three years. With this variation the appeal is partly I:;: I (,;; "i<;l*l'.<? w,ed. l N) JL(k'· J I ' : ,. ~~· 'I , > If ~ \ ', • • ·"'· , .j" ,. I . i ,;i f::i ·:-·wiNiA.-;~')~z:j;. F. ~-i, ····BRA , .':-' ·, ._.. -. · 'l/I-2/8-2 _.fl JUDGE /