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t c-f7fl) IN THU HTGU COURT OF TANZ&NIA A' DODOMA APPE' L' TU JIJRISDICPION • CRIMINAL A1AL Na, 179 OF 1977 .. ORIGINAL CRIMINAL;CASE .No, 212 OF 1.976 OP THE DISTRICT COURT OF NJOhBL' DISTRIC AT NJOI'fl3E B E F OR 13 Y.FJ. NPLRELLA . DISTRICT IiGISTRATE ATIUMAN $/O MSiFIRI EGE . . . .'APPLANT versus . TH REPUBLIC • . . . . .• . . . RESPONDENT CHARGE: Stealing fom a iotor vehicle c/s 269(c) of the Pei: Code.

J U D G N B N T JONATHAN. J. The appellant was convicted of stealing from a motor vehicle c/se 269(c) and 265 of the Penal Code.. He was sentenc under the Minimum Sentences Act to 3 years'.Lprisonneflt. Against the conviction he has appealed to this court. It was the case for the prosecution that the appellant vtho was employed by a firm called Teeteeko as a labourer, on the relevant day at Njombe stole 48 tins of cooking-, oil valued at shs. 319/20. For this there was the o'idence of three fellow employees from whose evidence it would aipear that on the relevant day at the Njombe Teeteeko depot cartons of cooking fat were transferred from one lorry to another lorry roady for transporting to Songea.. That job seems to have been clone by Pw.3 and the appellant,ong others. According to Pw.1 a watchman of the company later that day at about six o'clock he had ±'ouncl the appellant putting things in a sack at that depot. Ho' asked him what they were ai-xi he repliei it was honey. In the meantime Pw.2 another fellow employee, had come there and put a similar question to the appellant. He dia not however answer intell- igibly and as they pressed for explanation the appellant abandoned the sack and disappeared. It was then found to contain two cartons, that is 48 tins, of the type of cooking oil as that loaded on the lorry destined for Sonea, and upol:. checking that consignment two

cartons were found missing. The appellant in his evidence said on the material day he had been..at work until 3.00 p.m. when he was called home on account of his child being sick. He did not thereafte. go back to the depot that day. In such account ho was supported by both Dw.2 and Dw.3. However, the learned district magistrate in his judent in view of the piosecution case had no hesitation in rejecting the alibi. It was during day time and at close quarters when the three prosecution witnesses saw what was happening'and there could have been nc possibility of nistken ideniity, and as they had no cause to frame up a false charge on the appellant the trial court was entitled to reject the defence. It cannot be faulted either for the conclusion that he had stolen thoe tins from the lorry destined for Songea. Accordingly, the appeal against .convistion is dismissed. I an not however satisfied that the appellant was operl: sentenced under the Minimum Sentences Act. • .2 - In'applying the Act the leaed magistrate noted that Teeteeko was a cooperative society. He did not however • indicate the source of such knowledge. That Aôt applied only if the conjpny was found to be a "specified authonty" within the iiieaning of the Act. Teeteeko is however not • spelled out as falling under the definition therein provided and asthrewas otherwise no evidence that it is an affiliate of the Party

, or a "sibsidiary company" in the context of the Act, it was not o]ie.n to the lower court • to apply it in sentencing the appellant.. Without reference to the Act, the sentence of three years açpeärs excessive considering the appellant was a Offender and all the coking oil was recovered. I think that a sontoncc of one year's imprisonmont would have been adequate punishment. There is accidingly substituted such sentence. Save as regards sentonce the appeal is disnised. TA P. M. JONATHAN •.JEJGEO