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ATAUSHA CRIMINAL APPEAL NO.229 OF 1978 ORIGINAL CRIMtNAL CASE NO.80 OF 1977 OF THE DI3TRICT COURT OF MOND LI • BEFORE: S. N. MTUI - DISTRICT MAGISTRATE

VERSUS THEREPTJBLIC....,.,...,.......•. RESPONDENT

J UDGM EN T CHUA, J. The appellant was charged with theft of a right of occupancy certificate c/s 265 of the penal code. He was found guilty of recoiving stolen property and sentenced to one year imprisonment. Being aggrieved by the conviction and sentence he has appealed to this court. At the trial the prosecution called 8 witnesses. The accused elected to rcniain.inute. and called no witnesses. The prosecution evidence was briefly as follows: On 30/8/76 the appellant borrowed Shs.4 2 000/- from Stephen John Minja (PW2) in the presence of Audi-ha John (Pw.8). He depositd his certificate of right of occupancy as security for the loan. He also signed a written - - agreement in which he promised that in the event of hirn failing to repay the loan within stipulated time his creditor was at liberty to take the house built on the plot in respect of which the right of occupancy had been issued. The date on which the loan was to be repaid was 30/10/76 but the appellant had not yet repaid the loan by that date. After an ekehange of letters which produced no results Stephen John 1\anja deóided to. send the matter to Primary Court 1'Jonduli • He gave the Right of occupancy • certificate plus a co -j)y of the agreement to Othiniel ' Mderne a Primary Court Lagistate. The appellant was summoned and on being shown the two docurnents adiitted the loan and promised to re-appear In court on

4/4/77 when he would agree with his c±editor on the mode of ropaing the loan. On 4/4/77 when the parties appeared before Mr. Othiniel171dei2ae thë.appellatit denied owing anything to Mr. Minja/and when the learned Primary Court Magistrate tried to look for the Right of Occupancy ..../2 certificate I * - 2 ate ahd copy of agreernent which were suppo to be in I±s draWs he could not trace thorn. On 10/5/71 the appellant sold the house in question for Shs.3,0001- to Awaichi Masawo (Pvi3) and had with him the same right qf occupancy certificate that had disappeared from the draws of Mr. Othiniel Mdomo. The appellant wit to tranef or ownership of the land in the office of Juma Twenda (176), a land Officer at 111 ondu.1i 9 and changed the name on the certificate from Octavian Myeki to Awaichi Ilasawo. The police in investigating the case seized the certificate and charged the appellant. The certificate was tendered in court as Exhibit P.1 and was fully identified by Stephen Minja (PW2) Jwaichi Masawe (PVT3) Simon Ole Sikoi (fl74) Othiniel Mdeme (Wi) and A.udilia John (11;18). Since the appellant .didset up any defence it was obvious that the prosecution had established the case against him beyond reasonable doubt. The appellant knew that the documont was in the custody of the Primary Court in connection with a matter in *hich he was directly involved. So he must have received it with

a guilty mind. Furthermore by using the samb document to transfer his interest in the land before ho repaid th loan for which the ortificate had been used as a security he was • demonstrating his capacity for defrauding other people. In his long memorandum of appeal the appellant says nothing that is worth considering in view of his failure to sot up a defence. In short he alleges that the key witnesses have conspired against him but I see no basis for seeing ,conspiracy in the evidence given by WitnesseS who came from • different backgrounds and occupations. In short the enorandun of appeal is arrant nonsense and a mere after thQnght. The conviction was fully justified by the evidence and the sentence was deserving. The appeal is accordingly dismissed in toto. L.R.CHTJA TUDGE. 22/4/8 3 4'