19701021 TZHC Mwanza3

I IN THE NIGH CCURT CF TiNZLNL1 AT i'P7LNZL Appellate Jurisdiction CflIMINLL id?PEIL iTO'.. 223 OF 1970 (0ri;ina1 Crininal Cac No. 379 of 1969 of the district court of Tarinc before T. H. .litui Esq. 9 Senior Liogistrato). JOSEPH s/c Nc.7EIJ .............APPELLANT (OiIGIlIAL L.00U52) versus . THE i1EPtJIC •. ......... . . . . '.tLEsPouDJ.T.c0IGIITLL IHC3LCUT. CIiLHGL - Stoalin bicycles c/b UJ-.,_.. ..... \ Ji. ULGi: • ... I'asJL1.c, The appellant Joseph Ngtwcn. aft one VitJ.is Chjo were JOlLtlJ choed with stcclii two bicycles contrary to section 265 of the Penal Coo'. At the conclusion of the case the accused Vitalis was £cnd not ui1ty but the appel1at was convicted as charged and' sentenced to twelve noiths inprisonraent. He now appeals against both conviction and sentenc The prosecution case was that on 9.12.60 the'couplc.inant, Enyasi Otieno was wa1dIg on the road pushing two bicycles, one of then Hercules in unko franc No.6303 ZY and the other 'Rialn in rke, Franc No.12339. Both bicycles were in runnixg order. Then the appellant who was a vi1lag executive officer cane along and on finding the conplainant pushing the two bicycles he hecthne suspicious.. He dananded receipts for the bicycln - and the couplainant duly banded to hin receipts for both bicycles. Nevertheless the appellant was not satisfied ena said that ho would seize the bicycles and investi[;at -b the nattor further' Upon request by the caaplaint, the appellant ioto a chit acknolec3ging receipt of the two bicycles. The appellant fixthr returnec1 to the couplainant the receipt for the Hercules bicycle but said hat he would retain the receipt f CT Runcla bicycle because it h -4 the cpind'nt t s contact address.. On the following day the conpiathant went to "see, the apellent but the appollant sold that 'he was still investigating the r.icitter.. He went to see kin on 15.3 .69 but the appe1l'rnt repeated that h'was till investig'atii the iatter. He went to see hii"agein on 12.4.69 bit •id not find kin.. Later on he learnt that the appell stopped workifrg as a village exocutiv officer, whereupon thà reported 'the natter to the police who in turn started investigation.. Upon being qutioned by the police the appe1i: produced the franc for the Runala bidyclo,oncT sold that ho hc.d handed over the Hercules bicycle to Vitalis, the O'Ocotad accused'. Both the appellant and Vitrlis were then arrested and charged, but as ,tatcd earlier, Vitlis was found not guilty and therefore 'acquitted • The appellant in a sworn statonent said that on 9l2'.'63 he seizo(. fron the caaplainant one bicycle and the Runda franc No.2039 for failia to produce local rate tickets fCT the years 1967 and 1960 110 retained the sane and on the ±'oU owing day he pronised to ±es tore than upon the coreplainont protucing the said local rate tickets.. The conplainant did not cone to see bin again'. Some time later the a5p6l1ant was 1rtvin to leave for Dcx os Salaon on a couxe so that on 20.469 he took the HOne'.l bicydle fr&io to the Baraza and asked Vitclis, the second accused, to the other 'biOyôle to the baraza as well'. When he iturncd fran Iai' os Sa,laan on 30.6.69 he found that be had been diaissed from his job. He also learnt that Vitalis bad not taken the bicycle to the hraza. He therefore saw Vitalis on3.7.69 but Vitcais said that he had passed the bicycle to soncone else. Llecntine Vitalis went to Lloshi on couise and while he was thore the appellant was arrcstoö tinka who The appellant also called as 'his witnesses one Yusu±' Lia said that on 20,4.69 he saw the appdllant hand over at the office a bicL - -' ••-- -.----"-"-- '---'--.-------- . . .2 and a bicycle franc to Vit'lis with a request that Vit1s should hand over thc bicycle to the court clorke- Tho trial magistrate in considorinr: the ctppollcnt' a evidence rejected allegation by the appellant that ho seized the bicycle nd thc frame from th.. complainant on account of non-production of local rate roceipt. It vq'uld sea. that the learned magistrate was entitled to reject the allegation because bct the complainant and P.i.3 1 C-aspar Owino, both of whose evidence was acoptod by the court, said that the appellant seized the bicycles on suspicion. Tho wont on to say that the appellant said that he would retain the smiio pending further investigation. Pi.uthoruoro, the complainant produced a bhit (Exhibit'-' which was not disputed by the appellant and vinich sho'vs that the appellant seized from the couplainont two bicycles on suspicion. One may add further that if the appellant did seize the bicycles for non-production of , local rat - tickets, it is rathei strange that he should have kept the bicycles at his h. and not to take thorn to the baraza especially 'hftãr the complainant had fail to ce to redeem then for so long i.e. from 9.12.60when he seized thou unti 20.4.69 when be says that he took thou to the baraza The learrd magistrate also rejected the appellant' allegation that the Runala bicycle was a more franc at the time of the seizure. Both the canplai- nant and P.V.3 said that the two 'bicycles were in running order at the time t1 appellant seized them. LIorcover, Exhibit tB1 mentioned hbovo refers to thou as bicycles and not as one bicycle and one bicycle frane' It would therefore scea that the leaxncd magistrate was antitied to find that the Runaba bicycle was in running order at the time it was seized by the appellant'. Cornacuting on the frame which was produced in court the learned uistrato said that it was completely worthless, and therefare the inescapable conclusion is that tho appellant must have fraudulôntly converted the Runala bicycle to his own use which would anotuit to thcft Ls regards the Hercules bicycle, the learned magistrate found that thc appellant did. not hand it over to Vitelis ha alleged by the appellant, and finding would appear to be amply justified. The appellant said that ha handed over the bicycle to Vitalis againot a receipt'. The appellant produced the receipt (Exhibit 'E) which clearly how that he handed over to Vitalis met a rlorculos bicycle but a ialoigh aicyclo. The appallant can rece an: vwite end the chit is duly signed by both him and Vitalis who could also read and write ' Therefore, it was not possible for both hImself and Vitalis to ma]a, a mistake about the type 0±' the bicycle banded cvor That being so it foliowE that the appellant has given no explanation about the Hercules bicycle which belongs to the donplains.nt and for this rea-si on it would seen that the barr-c magistrate was entifled to find that the appellant stole that bicycle. The learned magistrate also considered the evidence of the appellant' a witnoss and said in effect that it did not assist the appellant' s defence in any woy,It is common ground that the appellant did hand over a bicycle to Vitelis on '2C.4.69 but the question is what moi was this bicycle? This witness said that he did not know what make it was but the available evidence shows that it was a flabeigh bicycle, and to that extent his evidance does not advance the case any further Having regard to all the evidence therefore, I on of the vic( that the trial magistrate was justified in convicting the appellant as he did. I cm also of the view that thä sentence imposed of 12 uonths imprisonment ccul d riot be regarded as excessive. iccordingly the appea.l is dismissed in its ontirety' Delivered in Court at Hwanza on this the 21st October, 1970. 1i, vV (n. H Kisangt) LCTI NC- JUDGE.