Shinga Wapya vs Republic (High Court Criminal Appeal No. 55 of 1982) [1982] TZHC 391 (1 December 1982)

AI'FELLNP.n JlTRISEICTION HIGH COURT CRHUN.:",L .APP:i:;LL NO. 5 5 OF 1 982 ORIGIN.AL CRit:nrn.L C,,'.SJ:8 HO. ··24 OF 1982 OTi' THE DISC!lRICT COURT OF ELHAI1A DISTRICT AT TJ-TE REPUJ3LIG o o o o o o i) o ,, o o o o o • ~ o o o o o o o ~ Rl:.S?ONJ)Eirr (Original Prosecutor) :CB:1:RG-E: Cattle theft c/s 268 and 265 of the Penal Code Cap. 16 Vol.l · of the Laws. SHINGA WAPYA a·':.r1d WAI'Yt. SH:r:l'TGil were jcintly charged with cattle . ' theft c/s 268 and 265 of tJrn :?en.al Code. Only SEINGA 1 ·r.r:..BYI. was found guilty of the offence ·and convicted. J{e was t1en sentenced to the mandatory mj_nimum sentence· or": five ;req1rs.imprfsonn1ent. He then appeald . : . . . \ . against. 1:)oth the conviction and sentence-. Mr, Kwikima, the learned adyocate for the appellant submitted that the cattle which were alleged to ha.ve bcen stolen and later found in po"ssession of th8 appellant could not :-:ie brought 1trithin the ambit of th:e stolen cattle recently stolen. The cattle were .reported stolen: on 19/12/81 and were purportedly icientif'ied on 11 /2/82,, Hr. Kwikima further submitted that the learned trial magistrate had not also warned himself on the principles of the doctrin~ of recent possession :-- as stated in t::1e case of L1:)dullah. I½rahim v. n!. (1960) ::E • ./ .• 43. The cattle found in possassion of the appellant 8ven assuming had been properly identified could have been acquired ·by the appellant innocently I found merit in the su"bmfssions. Mr. Kwikima furtJ.1.er submitted that the trial magistrate had seriou- ... sly misdirected himself on the burden of proof. The Court baa called unon the appellant to show to the court his identifying marks to prove his ownershl:p of the alleged stolen cattle.. I also found merit in this · IiUbmission. In callinr; the appellant to prove hie owenership of the cattle he is aller:;ed to have stolen,the court ws.s tl;.Frc'bW calling upon him to prove his innocence. Mr .• Ghaila, the learned ;3tate Lttorney, not surprisingly, fully supported the suomissio:ns of the learned defence counsel. In the result he did not support the conviction. I have a"bove stated that I found merit in the submissions of Mr. E\rild::::iaff I occordingly upheld ~- .. •··• ...... 2/

2 thett on the day of t 1 1e hearing of the 8Ilpeal and allowed· the appeal. I quashed the conviction of the appc::llant and set 2side the sentence o•r=- five years imprioonme1:1t. I furt}:1<::::r ordered that· the appellant be set free at once unles;::3 held on another natter. 1 /1 2/1 98.2 Coram: R.TJB/~M1, J. Mr. Mussa, State -Attorney for the Republic. Appella,1t absent. Judgment delj_vered. 1/12/1982