19750613 TZHC Mwanza

, ji Iii .D IG.0 AT :rZA.• AP1?1LATE 'JEflISDICT ION I-JIc COtF: r I.I ArPLL iTO 325 Op 1974 I, 728 op 1972 OP DIL±CT COUT OP ThO "L D rS c , TTSO7 - r T LiSIDTr A LRLTL BITA s/o ::tuucu .LIFEILAfT vorvs TIEDREPUBLIC . . . . . . • o , . . e • 0 • • • • • . . . o •o . . . . • PLE3POITDEITT JU D (+.LIE NT -• L1AGLiTGA LG. J: Lpsliant was convc ted of cattle thoft c/s 268 and 265 of the Pe:.a1 Code. TJ..o char,o sr;ainst kin was that he o1e two ads of cattle worth she. 200/=. The OJde.CO adduced for the prosecution proved that the appellant was cennlainant I s younjj brother and that the cattle to v found to have stolen were l:.:ft ijir their deceased father. The cattle ad bean I)aid to their :father as dowry after their sister was narriod. The apoollani was still young; at the tine. It also transpired ii cvide cc tha t- a-p..)eilmt 1id cloroc1 ca10 irT 1110 older brother, the co:ip1ainant, as part of his inheritance. The dispute was referred to elders but it was not resolved, whereupon the conplainant told thc appellant to have the natter settled in court. It was after this that the apoellant took the two toads of cattle and sold one end s1u'.hterod hc r L l rye a eoueo ., o ti...o Co Did_lan u. Tile defence was one of elaio of riht but the learned resident naistrato scans to have not considered this cicijc;nce. Lie ccnv:Lctcd the. apwlie.nt . ininly becauce the aproilant told several li:.s lii.... :S defoco. Ls subait ted by the lo ama d State It.toIriciy the learned rosidoat :w.'listrate would probably have not cono to the conclusion t.at the theft of the cattle was proved had he considered the apeol*ane defence of clai. ,. of riht. Admittedly the ap'ella.t's defence woe :auddlod no but it is clear o.at ho I)Jlovod that ho. was entitlod to inherit cone of the cattle 1 ;Tt by his decoasod fetter to his elder brothor, t: . cc: lament, while ho was still ycun;. I an of the view that the o.ppellants clain. o± riht to the cattle, thouhh possibly :aista:roo. w'.s 1:asod on a honest belief. In the circunetancos the defence of bceia fide claim of ri11t provided for scctio:i 9 of the Penal Code VICS open to him. As Onyiut:e, J., a: ho then was, held in the Director of Public OCCOL i. w. v ' r , ?woa .nnaza i9TTT5 nc T is shown that a person is honostly assortLn: what ho believes to ho a lawful clain 2 ho has a data of :riht under section 9 of Penal Code neon thoug1D. the right assorted is un: Liclod in law and :ilact . Thouçh facts in caso wore different from those in this coca, the sane principle is, in my wTow, applicable. Per ;his reason I would allow this so :.oal. The c orviction is therefore quashed cr(1 f sentence sot aside. Appellant siwuld be released frthiith unless kc is other-wise hold. . . . /2 ...../2 Dciivc;rcd OAK I3iiC.a qf Ji.ialc, 1975. .\ \ 1 . LCTIITG JLTIXE Alimiko for thq 1o'Th1ic. iIill J. •-00000O00000-