Criminal Appeal No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MTWARA

AT MTWARA CRIMINAL APPEAL NO. 29058 OF 2024 (Originating from the decision of the District Court ofLindi at Lindi in Criminal Case No. 26 of2023) AZIZ HUSSEIN HAJI.................................................. APPELLANT

VERSUS THE REPUBLIC............................................................. RESPONDENT

JUDGMENT 14h February & 13h March, 2025 MPAZE, J.: On 16th July, 2021 at 07:00 hours, F.1680 D/SGT Ambonile (PW1) left his residence at TBA Quarters, Mtanda area, Lindi, and headed to work. The TBA Quarters area was typically quiet during the daytime, as most of its residents were public servants. While at work, PW1 completed his duties, confident that his house was secure. At noon, he proceeded to LUWASA offices to consult a water technician regarding a water issue at his home. After discussing the matter with the technicians, he returned home to await their arrival. i Upon reaching his residence, PW1 found the front door intact and entered. However, to his surprise, he discovered that his kitchen door was wide open, and the house was covered in white chokaa. It was at this moment that he realized his home had been broken into, and valuables had been stolen. Upon inspecting the living room, PW1 found that his Hisense 40-inch TV, Sony radio, and sandals were missing. The receipt for the TV (No. 050) was admitted as Exhibit Pl. PW1 promptly reported the incident to OC-CID Plasius Mgaya, who, along with other police officers, visited the scene for inspection. Their investigation revealed that the intruders had gained entry through the kitchen ceiling board. A sketch map of the crime scene was drawn and was subsequently admitted as Exhibit P3. Several suspects were apprehended in

connection with the offence house breaking and stealing; however, none were conclusively identified as the perpetrators. Investigations continued, and on 24th February, 2023 INSP John Ijumba (PW2) received a report of an individual being attacked in the Tanesco area. 2 PW2 immediately proceeded to the scene, where he rescued the person who was later identified as the appellant and escorted him to Lindi Police Station for further inquiries. At Lindi Police Station, the appellant was interrogated, and it is alleged that he confessed being involved in the housebreaking and theft at PWl's residence. His caution statement was recorded by SGT Sheni (PW3) and was admitted into evidence without objection as Exhibit P2. Following his statement, the appellant led the police to PWl's house, where he demonstrated how he and his accomplices had committed the crime. On 9th May, 2024, the appellant was arraigned before the District Court of Lindi on two counts; The first count, house breaking contrary to section 294(1) (a) and (b) of the Penal Code [Cape 16 R.E 2022]. It was alleged that; 'On l&hday of July, 2021 at Mtanda area within the district and region of Lindi, did break and enter into the house of one F. 1680 D/SGT Ambonite with intent to commit an offence therein, namely theft.' The second count was stealing contrary to section 258(1) and 265 of the Penal [Code Cap 16 R.E 2022]. It

was alleged that; 3 'On lffh July, 2021 at Mtanda area within district and region of Lindi, the accused did teal one television make Hicence 40 inch valued at Tsh. 720,000; four speakers make Sony Home Theatre valued Tsh.450,000/=; one pair of senda! valued Tsh. 10,000/= and two silver chains valued Tsh. 132,000/= all make value of Tsh. 1,313,200/= the property of one F.1680 D/SGTAmbonile.' In his defence, the appellant completely denied the allegations leveled against him. He raised a defence of alibi, asserting that he had not been in Lindi Region since April 2021 and had only returned in February 2023. After a full trial, the trial court found the appellant guilty on both counts. Consequently, he was convicted and sentenced 5 years imprisonment for the 1st count and 3 years imprisonment for the 2nd count. The trial court ordered sentences to run concurrently. Dissatisfied with the conviction and sentence, the appellant lodged this appeal, raising the following grounds of appeal; 1. That, the trial court erred in law and fact by convicting the appellant while the trial was not fairly and expeditious trial as it contravened the requirement of section 192 of the CPA R.E2022.

2. That, the trial court erred in law and fact by convicting the appellant relying on the suspicious evidence, which is against the law. 4 3. That, the trial court erred in law and fact by convicting the appellant while the appellant defence was not considering as well as it was according no weight of any kind.

4. That, the trial court erred in law and fact by convicting the appellant relying on the evidence of PW1, which contravened with section 11 of the TEA R.E2022.

5. That, the trial court erred in law and fact by convicting the appellant relying on the Exhibit P2 caution statement which contravened with the requirement of the law as it was taking before the complainant.

6. That, the trial court erred in law and fact by convicting the appellant while the trial court failed to evaluate property the prosecution evidence as well as defense evidence.

7. That, the trial court erred in law and fact by convicting the appellant while the offence was not proved the case beyond a reasonable doubt under section 3(2) of TEA in concerned. During the hearing, the appellant appeared unrepresented while the respondent was represented by the learned State Attorney Mr. Edson Lawrence Mwapili. When invited to argue his appeal, the appellant, being a layman, presented his grounds of appeal generally. He contended that the 5 prosecution failed to produce an RB (Report Book) entry to prove that he was being sought, as well as a certificate of seizure or a search warrant to establish that he was searched and found in possession of any incriminating items. He further argued that the prosecution failed to summon independent witnesses, such as the village chairman or the ten-cell leader, to testify regarding his arrest. Instead, all prosecution witnesses were police officers. Additionally, the appellant pointed out that the complainant himself testified that theft occurred at his house, which was located in a residential area rather than within the police quarters. He argued that this residential setting meant that neighbours, including the village chairman and other residents, should have been called to testify, rather than relying solely on police officers as witnesses. He then urged the court to consider his other grounds of appeal as set out

in his petition. In response, the State Attorney resisted the appeal. He chose to combine and argue grounds 2 and 7 together. Similarly, he jointly addressed grounds 3 and 6. As for the remaining grounds, he argued each separately. 6 Regarding grounds 2 and 7, Mr. Mwapili argued that the appellant's claim primarily rests on the assertion that the prosecution failed to prove the case beyond a reasonable doubt. However, he maintained that the prosecution had successfully proven both counts against the appellant through the testimonies of four witnesses and the exhibits. He submitted that PW1 testified that on 16th July, 2021, his house was broken into, and valuables were stolen. He reported the matter but did not identify the culprits or recover his belongings. On 24th February, 2023 PW2 received a call about a mob attack. He rescued the appellant, took him to the hospital, and later to the police station. When questioned, the appellant admitted to various housebreakings, including PWl's, where he stole a TV, speakers, sandals, and chains. PW3 later recorded his caution statement, which was admitted as Exhibit P2 without objection. Mr. Mwapili emphasized that the appellant did not challenge PW3's testimony on cross-examination, citing Nyerere Nyaque v. R (Criminal Appeal No. 67 of 2010) [2012] TZCA 103 (21 May 2012), which holds that failure to cross-examine implies acceptance of

evidence. Relying on the 7 testimonies and caution statement, he urged the court to dismiss these grounds of appeal. Regarding ground 5, Mr. Mwapili argued that the appellant does not dispute making the confession or claim it was involuntary or recorded outside the prescribed time. His only objection was that PW1 was present during the recording, a claim Mr. Mwapili dismissed as baseless. He clarified that PW3, not PW2, recorded the statement, and PW3 confirmed that only he and the appellant were present. He further asserted that any challenge to its admissibility should have been raised at the time of admission, not at the defense or appeal stage, as established in Nyerere Nyaque v, R (supra}. Since the confession statement was properly recorded and admitted as Exhibit without any objection, he urged the court to dismiss this ground. On grounds 3 and 6, Mr. Mwapili acknowledged the trial court's duty to analyze and consider all evidence. However, after reviewing the judgment, he maintained that the magistrate properly evaluated both the prosecution and defense evidence, making these grounds baseless. 8 He further argued that if this court finds any shortcomings in the trial court's analysis, it has the authority to reassess the evidence and reach its own conclusion. On ground 1, Mr. Mwapili refuted the appellant's claim of non­ compliance with section 192 of the Criminal

Procedure Act [Cap 20 RE 2022] (the CPA). After reviewing the trial proceedings, he confirmed that the preliminary hearing was properly conducted and urged the court to dismiss this ground. Regarding ground 4, he argued that section 11 of the Evidence Act [Cap 6 RE 2022] (the TEA) allows facts necessary to explain or introduce relevant facts. Since PW1 only narrated the events of the incident, no violation occurred. He, therefore, prayed for the dismissal of this ground as well. Mr. Mwapili dismissed the appellant's argument regarding the lack of a search warrant or seizure certificate, noting that this issue had not been raised during the trial and was being raised for the first time on this appeal. He explained that the appellant was searched at his mother's house, where nothing was recovered, making a seizure certificate unnecessary. 9 Regarding the absence of an independent witness during the arrest, he argued that the appellant was rescued from an attack rather than being formally apprehended, making such a requirement irrelevant. He also stated that the lack of an RB did not weaken the prosecution's case, as the appellant was arrested two years after the crime. In conclusion, he insisted that the trial court's conviction and sentence were justified and prayed for the dismissal of the appeal. On rejoinder, the appellant reiterated his earlier submission, questioning

whether he was truly rescued from an attack, arguing that if so, the street chairman would have been present. Regarding the search, he stated that he was arrested on 24th February, 2023 and taken to court on 13th March, 2023. He claimed the police searched his mother's house, where he lived, but found nothing, and no independent witness was present. He added that the testimonies of PW1, PW2, PW3, and PW4 failed to establish the prosecution's case beyond a reasonable doubt. He, therefore, urged the court to allow his appeal, quash the conviction, and set aside the sentence. io Having considered the grounds of appeal and the trial court's record in light of these grounds, I am now tasked with determining the merit or otherwise of this appeal. As this is a first appeal, it takes the form of a rehearing, allowing the court to evaluate and analyze the evidence on record afresh. Accordingly, I may either uphold the trial court's decision or make independent findings where necessary. See Nimo Samu v. The Director of Public Prosecutions (DPP), (Criminal Appeal No. 31 of 2019) [2022] TZCA 674 (7 November 2022), and Mapambano Michael @ Mayanqa v. R, (Criminal Appeal No. 268 of 2015) [2016] TZCA 310 (25 April 2016) Starting with ground one of the appeal, the appellant alleges non­ compliance with section 192 of the CPA. In advancing this ground, the appellant was brief, merely stating

that during the preliminary hearing, the facts were not read out to him and that he was denied access to the charge sheet when he requested it. On the other hand, the State Attorney opposed this argument, insisting that the preliminary hearing was conducted in full compliance with section 192 of the CPA, citing pages 6 and 7 of the trial court proceedings. ii To determine whether section 192 of the CPA was duly complied with, I had to examine the trial court proceedings, particularly those recorded on 14th June, 2023 as reflected in the online proceedings, which state as follows; ' S/A Nguvu: The matter is for preliminary hearing and we are ready. Court: - Accused reminded the charge and asked to plead thereto. Accused piea: 1st Count: Siyo kweii 2nd Count: Siyo kweii. Court: - Entered piea of not guilty to the charge.

PRELIMINARY HEARING 1. That the accused person particulars are as per charge sheet. Accused: - Nikweii hayo ni majina yangu na anwani yangu.

2. That after Investigation was completed accused person was sent to court and charged accordingly. Accused: Ni kweii nimeshtakiwa mbeie ya Mahakama hii. S/A Nguvu: That is all 12

MEMORANDUM 1. That accused person admitted facts No. 1 and only and disputed facts No. 2, 3, 4, 5, 6 and 7 collectively as read over from summary of facts which is admitted to form part ofproceedings in this case. Accused Sign: AZIZIH. HUSSEIN 14/6/2023. S/A Sign.......................... 14/6/2023 CC: Sign......................... 14/6/2023 Court: - Section 192 of CPA Complied with.' From the above excerpt, it is evident that while a preliminary hearing was conducted, it did not fully comply with the requirements of section 192(3) of the CPA. The record indicates that only two out of the seven facts listed in the memorandum were read out to the appellant, to which he responded. After that, the trial magistrate simply wrote 'MEMORANDUM.' This was improper, as the trial magistrate ought to have explicitly stated that the memorandum she prepared was for undisputed facts. Nevertheless, despite these flaws, it is a well-established legal principle that section 192 of the CPA was enacted primarily to expedite criminal trials, and any procedural irregularity in its application does not vitiate the 13 proceedings. See Luthqnasia Simon Mushi @ Vumi v. R (Criminal Appeal No. 209 of 2019) [2023] TZCA 17531 (25 August 2023/ Therefore, while there was an apparent deviation from the prescribed procedure, it does not render the trial a nullity or occasion a miscarriage of justice. While

complaining about the non-compliance with section 192 of the CPA, the appellant also alleged that he was not provided with a copy of the charge sheet but failed to explain how this affected his defence. Upon examining the trial court proceedings, there is no indication that the appellant ever applied for a copy of the charge sheet and was denied access to it. Furthermore, the record reveals that when the appellant first appeared in court, the charge was read out to him, and he pleaded not guilty to both counts. Again, on 14th June, 2023 before the preliminary hearing commenced, the charge was reminded to him. Additionally, when the trial court issued the ruling on the case to answer, it informed the appellant of the specific offences he was required to defend himself against. Therefore, this complaint lacks merit, as the appellant has not shown any prejudice resulting from the alleged omission. 14 Moving to ground 3, the appellant contends that his defence was disregarded and given no weight. However, a careful examination of the trial court's judgment reveals that, on pages 11 to 14, the trial magistrate thoroughly assessed the appellant's alibi defence before concluding that it failed to cast doubt on the prosecution's case. Accordingly, this ground lacks merit. Regarding ground 4, the appellant argued that PWl's testimony contravened section 11 of the TEA. In this case, PW1,

as the complainant, testified about how he returned home to find his house broken into and his belongings stolen. He promptly reported the incident to the police, who visited the scene, and investigations ensued, eventually leading to the appellant's arrest. Section 11 of the TEA governs the admissibility of facts relevant to proving or disproving an issue in dispute. The appellant has not demonstrated how PWl's testimony contravened this provision. On the contrary, PWl's account was crucial in establishing the commission of the offence, as he was both the victim of the crime and the rightful owner of the stolen properties. His testimony formed part of the 15 prosecution's case, providing context to the investigation and linking the offence to the appellant. As such I find this complaint unfounded. On ground 5, the appellant complained that the caution statement contravened the requirement of the law as it was taken before the complainant. However, the records indicate otherwise. After reviewing the records to examine the complainant's, (PW1) involvement, during the recording of the appellant's confession statement, I have discovered the following; Firstly, the appellant's confession statement was recorded by PW3, who testified in detail that when the statement was taken, it was only him and the appellant present. This testimony was not challenged during cross­ examination,

meaning that the failure to cross-examine the witness is deemed as acceptance of his evidence, as correctly argued by the state attorney and supported by the case of Nyeyere Nyague {supra) Secondly, while PW1 stated that he was called to the police station and, upon arrival, found the appellant with PW2, where the appellant admitted to stealing from PWl's house, PW1 did not state being present when PW3 recorded the appellant's statement. Therefore, claiming that the 16 appellant's confession statement was taken in the presence of PW1 is incorrect. Thirdly, the records show that during his testimony, PW3 prayed to tender the appellant's confession statement as an exhibit, the appellant did not raise any objection to its admission. If the appellant truly believed that the statement was taken in contravention of the law, he could have objected when the statement was tendered. However, his failure to do so suggests that this claim is an afterthought. In light of the above, it is evident that the appellant's confession was made voluntarily and in compliance with the law, and there is no merit to the claim that it was taken in the presence of the complainant. The appellant's failure to object to the admission of the confession statement when it was tendered in court further weakens this ground of appeal. Therefore, the claim that the confession statement was improperly taken due to

the presence of PW1 is baseless. Finally, the appellant raises a complaint related to the failure of the prosecution to prove the case beyond a reasonable doubt, a complaint that is centered around grounds 2, 6 and 7. 17 In the instant case, as stated above, the appellant was facing two counts. The first count was housebreaking, contrary to section 294(l)(a) and (b) of the Penal Code.The section reads that; 294. -(1) Any person who- (a) breaks and enters any building, tent or vessel used as a human dwelling with intent to commit an offence therein; or (b) having entered any building, tent or vessel used as a human dwelling with intent to commit an offence therein or having committed an offence in the building, tent or vessel, breaks out of it, is guilty of housebreaking and is liable to imprisonment for fourteen years.' In the second count, the appellant was charged with stealing under section 258(1) of the Penal Code. The section reads that; 258.-(1) A person who fraudulently and without claim of right takes anything capable of being stolen, or fraudulently converts to the use of any person other than the general or special owner thereof anything capable of being stolen, steals that thing'. To prove the offence of housebreaking under the relevant provisions, the prosecution ought to establish the following elements; one; there was breaking and entering into a dwelling house

two; the breaking was 18 committed in a day time and three; there was an intent to commit an offence therein. In the case of the offence of stealing, the prosecution was required to prove the following elements; one, fraudulent intent, two, without claim of right, three, taking/converting and four a thing capable of being stolen. According to the evidence in the trial court record, none of the prosecution witnesses testified seeing the appellant committing the offence of housebreaking and stealing; in other words, there is no eyewitness. However, the evidence linking the appellant to the commission of these offences comes solely from his own confession. In our jurisdiction the law governing confessions is primarily found under the TEA. Section 27(1) of the Act provides that a confession made by an accused person is admissible if it is made voluntarily and is not induced by threats, promises, or oppression. A confession may be oral or written, and once admitted, it can form the sole basis for conviction if it is found to be true and reliable. The Court of Appeal has consistently held that confessions are among the strongest pieces of evidence in criminal trials. In the famous case of 19 Tuwamoi v. Uganda [1967] EA 84, the Court stated that a confession must be subjected to careful scrutiny before it can be relied upon. Similarly, in Hatibu Gandhi & Another v. Republic [1996] TLR

12, the Court emphasized that for a confession to be used as the sole basis of conviction, it must be true, voluntary, and free from suspicion of having been obtained through coercion or undue influence. Further, the case of Nyerere Nyague reaffirmed that courts must examine the circumstances under which the confession was obtained to ensure that it meets the legal requirements of admissibility. If a confession is freely and voluntarily made, it can be acted upon even without corroboration, provided it is truthful and consistent with the surrounding facts. In the case of Hassan Said Nundu v. R, Criminal Appeal No. 126 of 2002 (unreported) the Court held; ' The court may convict on uncorroborated or repudiated confession of a maker or a co accused as the law allows in Tanzania, if the following conditions are satisfied; 20 First, that the court warn itself of the danger of convicting on such evidence; Second, that the court is satisfied that the statement is true, free and voluntary.' To determine whether the appellant's confession statement is true, free, and voluntary, it is crucial to examine the circumstances under which the statement was recorded and assess its truthfulness. Regarding the conditions under which the appellant's statement was obtained, I have already addressed this matter while discussing ground 5, where I was satisfied, based on PW3's testimony, that the

appellant's caution statement was recorded freely, without any undue influence or coercion. The question that now arises is whether the contents of the statement are truthful. This requires a close examination of the statement itself, as recorded in Exhibit P3, where the appellant narrated the events in his own words that; "... ninakumbuka siku hiyo ya tarehe 16/7/2021 majira ya saa 10:40 hrs hivi mimi na wenzangu wawiii ambao ni Kebo na Ramadhani au Ramso tuiienda huko mtanda nyumbani kwa askari mmoja poiisi anaitwa Amboniie ambako tuiiiba TV 1 aina ya Hisense ya inch 40 nyeusi fiat screen na cheni moja ya kuvaa shingoni na hiyo nyumba tuiionyeshwa na rafiki yangu aitwaye 21 Omari Mbela kwa sasa yupo Dsm tuiitumia mbinu ya kuw Kebo aiipanda juu ya dari/paa na a/ikata bad kwa mkasi mkubwa kisha ah'kata sy/ing body kwa kisu wakati huo huko nyumba ya nyumba hiyo kuiikuwa na dirisha kubwa karibu na mtango wa uwani nih'kata nyavu niiiingiza mkono Hi nifungue miango nikashindwa kufungua pale mimi na Ramso tuiimsubiri Kebo akishafanikisha kuingia ndani afungue miango wa uwani Hi tuingie ndani na hapo nyumbani hapakuwa na mtu yeyote yule baada ya muda mchache kupita mara tuiiskia miango wa uwani unafunguiiwa aiitoka Kebo hadi nje kisha akaniita tuingie ndani humo ndani niiiingia mimi na Kebo tukiwa humo ndani kupitia maeneo ya jikoni mbeie tukakuta vyumba vya kuiaia watu kisha

tuiiendeiea hadi ukumbini ambako tuiikuta TV moja Inchio 40 nyeusi aina ya Hisense pale nirifurahi nikajua tumefanikiwa ndipo niiiichukua mwenzangu Kebo aiifanikiwa kuingia katika chumba kimoja wapo kisha aiitoka akiwa na cheni moja ya kuvaa shingoni sikumbuki ya aina gani, mwenzetu Ramso aiibakia nje kuangaiia usaiama kisha tuiiondoka na tuiienda kuficha poiini maeneo ya Kanisa ia Kaguani tarehe 22/7/2021 saa 19:10 hrs usiku mimi Kebo na Ramso kwa pikipiki tuiienda kuie poiini ambako tuiiichukua na kisha tuiimpeiekea Jamaa aitwaye Aiubaini na tano (4) yeye ni bodaboda huko maeneo ya majengo Lindi Hi atusaidie kuuza baada ya kupita wiki moja majira ya saa 01:00 hrs usiku huo mtaa wa fisi Kebo aiinipatia fedha Tshs 65000/= kama maiipo yangu baada ya kunieieza kuwa TV imeshauzwa. Kwahiyo ninakiri kuwa TV aina ya 22 hisense inchi 40 ya askari poiisi aitwaye Ambonite ni mimi ndiye niiieiba nikiwa na wenzangu Ramadhani au Ramso dereva wangu wa bodaboda pamoja na Kebo tarehe 16/7/2021 majira ya asubuhi. Applying the above principles to the present case, the appellant's confession appears to have been made voluntarily and without coercion. The statement details how the offence was committed, the people involved, and what happened to the stolen items. His account is detailed and aligns with the evidence given by PW1 and PW4, particularly regarding the breaking into the house and the

stolen items. Moreover, the appellant admitted his involvement and even disclosed how the stolen Hisense TV was sold, and the proceeds shared among the perpetrators. This level of detail strengthens the credibility of the confession, as it contains facts that could only be known to someone directly involved in the crime. In light of the guiding legal principles, particularly those in Tuwamoi v. Uganda {supra) and Hatibu Gandhi & Another v. R {supra), this court finds that the appellant's confession is true and reliable. Given the absence of any evidence of coercion, threats, or inducements, the confession remains 23 a sound basis for this court to uphold a conviction, especially considering that even at the time of its admission as an Exhibit, it was neither retracted nor repudiated. Having established the foregoing, I now turn to examine whether the appellant's confession statement, in conjunction with the prosecution witnesses' testimony, sufficiently proves the charges against him beyond a reasonable doubt. Concerning the offence of housebreaking, PW1 and PW4 testified that parts of PWl's house, including an iron sheet with removed nails, broken windows, and an open back door, were damaged. Additionally, PW4 tendered a sketch map {Exhibit P3}, which corroborated the occurrence of the break-in and established the element of unlawful entry into a dwelling house. Moreover, the

appellant's confession statement also describes the same areas mentioned by PW1 as the points of entry, confirming that he and his accomplices broke into the house through those sections before gaining access inside 24 Regarding the time of the offence, although the charge sheet did not specify an exact time, PW1 and PW4 confirmed that the breaking occurred during the daytime. PW1 stated that he left the house at 07:00 hours and discovered the break-in upon returning at 12:00 hours, while PW4 arrived at the scene at 13:00 hours after being informed of the incident. Additionally, in the appellant's confession statement, he stated that the housebreaking took place at 10:40 hours, which further corroborates that the offence was committed during the daytime. The evidence further shows clear intent to commit a crime upon entry. The appellant's actions, coupled with his confession, suggest the breaking was intentional and aimed at theft, with the damage to the property confirming the unlawful entry with intent to commit the offence therein. Based on the testimonies from PW1, PW4, and the appellant's confession statement, there is no doubt that the offence of housebreaking has been proven beyond a reasonable doubt. Touching to the second count to wit is stealing, in his testimony, PW1 listed the stolen items after the housebreaking incident, including a 40-inch Hisense flat-screen

black TV valued at Tshs 720,000/=, two pieces of silver 25 chain valued at Tshs 132,000/=, four speakers valued at Tshs 450,000/=, and a pair of sandals worth Tshs 10,000/=. PW4 corroborated this testimony by stating that upon arriving at PWl's house, PW1 pointed out the places where the stolen items had been kept before they were taken. The purchase receipt for the stolen TV was tendered and admitted as Exhibit Pl, further supporting the ownership and value of the stolen item. PW1, however, explained that she could not provide receipts for the other items due to frequent relocations. This does not negate the fact that the items were in her possession before the breaking. The accused's confession statement, confirms that he stole a black 40- inch Hisense TV and a chain from PWl's house. He admitted that after stealing these items, they were hidden in the bush and later sold. This confession further strengthens the prosecution's case by proving that the appellant unlawfully took PWl's property without consent, concealed it, and later profited from its sale. The appellant's admission aligns with the testimony of PW1 and PW4, thereby establishing beyond a reasonable doubt that the offence of stealing was committed. 26 On his defence, the appellant raised the defence of alibi that he was not at Lindi when the incident occurred. Upon perusing the trial court judgment, I am satisfied

that the trial magistrate discussed the appellant's defence extensively therefore, I agree with the trial magistrate the appellant's defence cast no doubt on the prosecution case. The appellant argued that the prosecution failed to produce a seizure certificate or search warrant to prove that he was searched and found in possession of any stolen items. However, in his confession statement, he admitted that the chain was taken by his accomplices and that the TV was sold at Alubaini na Tano (45). Given his own admission that the stolen items had already been disposed of, it is unclear how he expected to be found in possession of them. Therefore, his complaint is unfounded. Also, the appellant complained that the prosecution did not call any independent witnesses, such as the village chairman or the ten-cell leader, to testify about his arrest. It is trite law that there is no specific number of witnesses required to prove a fact as provided under section 143 of the TEA. In the circumstances of this case, PW2 evidence was sufficient to prove how the appellant was arrested hence his complaint has no merit. 27 The appellant contended that since the theft occurred in a residential area rather than within the police quarters, he expected witnesses from the neighborhood, such as the chairman and other residents, instead of only police officers. However, there is no legal provision

barring police officers from testifying if they are material witnesses. Thus, his claim is unfounded. All said and reasoned, I concur with the trial court finding that the prosecution successfully proved the charge against the appellant beyond a reasonable doubt. Consequently, I find that the appeal lacks merit and therefore dismiss it in its entirety. It is so ordered. Datedat^ltwara this 13th March, 2025. M. B. Mpaze |i । I ■ ‘ .. : * '\ Judge V - Court: Judgment Is^delivered today in the presence of Mr. Majaliwa Sebastian State Attorney for the Republic and the Appellant. M. B. Mpaze Judge 13/3/2025 28