abdul yusuph kiemi vs republic 2010 tzhc 230 22 february 2010

IN THE HIGH COURT OF TANZANIA

AT DODOMA (DC) CRIMINAL APPEAL NO. 22 OF 2009 (Originating from Mpwapwa District Court Criminal Case NO. 62 of 2008) ABDUL YUSUPH KIEMI.....................APPELLANT /ERS'JS THE REPUBLIC.............................. RESPONDENT

REASONS FOR THE DECISION 3 0 / 11/2009 & 2 2 /2 /2 0 1 0 . KWARIKOJ.: On 30/11/2009 I heard bcth p irties in respect of this appeal. Mr Wambali Learned State Attorney who argued the appeal on behalf of the respondent, Republic did not support the conviction and sentence against the appellant. On 25/1/2020 I allowed the appeal, quashed the conviction and set aside the sentence against the appellant. I reserved the reasons for the decision and I am going to give the same hereunder. The appellant and another SM BANI S/O WAILES the then second accused had been arraigned betore the trial Court tor two counts ot Burglary contrary to section 294 (1) (a) and (2) and Stealing contrary to section 265 both ot the Penal Code Vol. 1 of the Laws, Revised Edition 2002. It was alleged by the Prosecution that on or about the 10th day of March, 2008 at about 01.30 hours at NHC Igovu area within Mpwapwa Distric t in Dodoma Region, the two entered into the house of NO. F 8305 PC Joseph and stole two plastic chairs and four plastic bucket: which were totally valued at Tshs. 75,000/= the property of PC Joseph. The two had denied the charge and thus a trial was conducted where in the end they were both convicted. The appellant was not satisfied with the trial Court’s decision hence this appeal. The facts of the case at the irial as revealed by the evidence from the Prosecution was as follows: on the

alleged material night after an unidentified thugs had broken into the house of the complainant PC Joseph, PW1 they stole from there one red plastic bucket, 2 green plastic buckets, two light blue ones and two plastic chairs. Information was sent to the Police and upon investigation it was learnt that the buckets were being sold around town. That, the appellant and the 2nd accused .vere found selling the stolen buckets. One JENNIFER MWARUKA, -DW5 was found in possession of two buckets and revealed that it was the appellant and the 2nd accused who sold the same to her. Also, in the house occupied by KULTHUM RAJABU, PW4 plastic chairs and one bucket were ecovered. PW4 revealed that it was the second accused her brother who brought the items in the house. It was also revealed that the c.ppe lant had sold two buckets to one Naomi. Thus the recovered orof erties were identified to be the stolen property of PW1. In his defence, the appr-llani denied the allegations and stated that while he disembarked from c car from Winza area on 10/3/2008 at 3.30 pm where he had gone on 8/3/2008 he was arrested for allegations of theft at one Kimambo's godown. The following day he was sent to PW 5’S house where a search was conducted but nothing was found. That, PW5 stared that it was the 2nd accused who sold three buckets to her husband. As for the 2nd accused, he testified that he sold four

plastic buckets and two chairs as an agent for another person who had entrusted him with. He sold three buckets to Baba Mwadawa, PW5’s husband and had kept the two chairs at his (2nd accused) house where the police found the same. He denied to have done any transaction with PW5 or PW6, ELISIANA KIOMBO who was PW5’s neighbour and who corroborated her evidence. The foregoing was the evidence at the trial which earn the conviction against the appellant and the second accused. In his Petition of appeal he appellant raised eight grounds of appeal which essentially cryst allise into one point of complaint that the prosecution evidence did noi prove that he was guilty of the offences charged. During the hearing of the appeal, both parties were emphatic that the prosecution case was not proved beyond reasonable doubt against the appellant. I am of the same opinion for the same reasons which ore explained hereunder; Firstly, the Prosecution evidence did not prove that the appellant was found committing the alleged offence or found in possession of the stolen property. P W l’s evidence contradicted in itself when he first testified that the appellant was found selling stolen property but in the same breath ho testitied that the appellant was found with nothing. Also, the evidence o PW5 was doubttul against the appellant. If PW5 only bought the buckets from the appellant and 2nd accused

then it is surprising as to why she had to be locked up in the Police before she revecled vhere she had kept the same. This shows that there was more to t than simply that she bought the buckets from the appellant. Also her husband knew how the buckets came into their possession lhat i >why he was the one who brought it to the Police after force was use d. Also, the prosecution did not bring evidence from the alleged Naomi to prove that she bought the buckets from the appellant and that the sc me i >elonged to PW1. The prosecution evidence did not also prove that the alleged stolen property belonged to PW1. This is so because while PW1 testified that five buckets were stolen including one red in colour, one green and two light blue, the recovered ones (Exhibit P I' included one blue, one green and two light blue buckets. This show that one blue bucket may not have been PW1 ’s property. Also, the Prosecution witn asses contradicted each other on the state of the stolen property. While PW5 testified that the buckets were brand knew and she had put a mark J.M on it, PW1 testified that the buckets had his mark J.M meaning Joseph Maliva when they were stolen. This further indicates that Exhibit PI was not proved to be PW1 ’s stolen property. And further, Exhibit M, 1 le 4 buckets were admitted in court contrary to the law. This s so >ince the Court did not give the accused any

chance to comment before the property was admitted in Court as exhibits (It is evident at page 8 of the typed version of the proceedings). Therefore, the stolen property was not satisfactorily identified by the complainant, PW1 and even the items found at the 2nd accused’s house* may not have been his (PW1) property. Since PW2 described the colour of the buckets found there to include one light green which c- >lour was not in the complainant’s list. Thus, the appellant’s complain; that the Police did not reveal to the ten cells leader what they were looking at the 2nd accused’s house has merits since they might have picked irrelevant items. Consequently, I find that the Prosecution did not discharge their duty to prove the case against the appellant to the standard required in law. \\ is also an established law that a conviction should be based or the weakness of the defence but on the strength of an affirmative prosecution case (see Pyaralal Bassan VR [1960] E.A 854). In this case at hand the trial Magistrate strongly discredited the defence evidence but he seems not to highlight the various doubts and discrepancies surrounding the prosecution case. Finally, the foregoing are the reasons which led the appeal to be allowed. It is so held.

AT DODOMA 24/2/2010 Appellant: Absent Respondent: Mr Mayeye State Attorney C/c: Ms Komba.