Musare Mandi v

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI CRIMINAL APPEAL NO. 20652 OF 2024 (Originating from Dareda primary Court in Criminal Case No. 146 of 2024 and District Court case No. 6548 of 2024) MUSARE MANDI…………….…..........................................................APPELLANT VERSUS DANIEL NADA..............................................................................RESPONDENT JUDGMENT 11th October and 29th November 2024 MIRINDO J.: Musare Mandi and Daniel Nada are neighboring farmers beside a road at Loto- Dareda in Babati District within Manyara Region. On 8 December 2023 both of them were on their farms along with other persons. Chaos ensued. As a result of the chaos, Daniel Nada claimed that he ran away with his company. He left at the farm some fertilizers, fifty bags of maize, one bag of yellow beans, and three tins containing pigeon peas, which went missing when he returned to the farm. He charged Musare Mandi before Dareda Primary Court with stealing these farm implements when he had ran away. The Dareda Primary Court having heard both parties concluded that the charge of theft was proved beyond reasonable doubt and sentenced Musare Mandi to four 1 months of community service. Musare Mandi appealed to Babati District Court. His appeal was dismissed and the District Court, in addition, ordered him to return the stolen properties to Daniel Nada. Musare Mandi filed three grounds of appeal in the High Court at Babati. He appeals against the decision of Babati District Court although he refers to that decision as one of the trial court. Parties argued the appeal by way of written submissions. The appeal rests on three grounds of complaint two of which challenges the conviction as unsupportable by available evidence and which I think sufficiently disposes this appeal. It is common ground from the evidence of both sides that there was chaos in the farms. In his testimony, the respondent, Daniel Nada complained that while they were cultivating the farm, the appellant and had his company caused chaos. The respondent and his people ran away because the appellant and his company had sticks. The respondent’s sole witness, Athanas Safari, stated that when the appellant and his team found them on the respondent’s farm, they prevented them from continuing cultivating it and threatened them by weapons. They ran away leaving the farm implements and upon returning to the farm, those items were nowhere to be found. The appellant’s version of the chaos is to be found in the accounts of his second and third witnesses. The appellant’s second witness, Faustin Matheo, highlighted that the respondent’s mother prevented the appellant from cultivating the farm. Julitha Difta testified as the third appellant’s witness and said that chaos occurred after the arrival of the respondent. 2 The charge of theft is rooted on the supposition that as the respondent and his team escaped from the chaos and the appellant remained at the farms, the appellant is to be presumed to have stolen the farm implements. I find this assumption problematic. First, it is clear from the evidence of both parties is that there were many persons on the farms on the day of the incident. There is no specific reason to single out the appellant as the one who stole the farm implements. Secondly, the respondent’s sole witness pointed that the respondent’s farm was beside the road. Yet there is no positive evidence to exclude the possibility of a passer-by stealing the farms implements. Thirdly, there is no evidence to show the location of farm implements on the respondent’s farm at the time of the chaos. There is no evidence to show their location on the farm. What comes out from the evidence of both sides are counter-accusations as to who was responsible for the chaos. Consequently, I allow the appeal and set aside the decisions of the two lower courts and acquit the appellant, Musare Mandi. DATED at BABATI this 29th day of November 2024. F.M. MIRINDO JUDGE COURT: Judgment delivered in chambers this 29th day of November 2024 in the presence of both parties. B/C: Ms. Anna Mathayo present (RMA). 3 Right of appeal explained. F.M. MIRINDO JUDGE 4