19750221 TZHC Arusha

aS I IN THE HIGH COURT OF TANZANIA , A T ARUSHA SALAAh APPELLATE j uiuijiuriui HIGH COURT CRIMINAL ]APPEAL NO. 59 OF 1974 ORIGINAL CRIMINAL Q,ISE NO. 219 OF' 1973 ' .. OF THE DISTRICT COtflT OF MBULU DISTRICT AT F3 ULU - Before P. N. Mosha, Esq., Ditrict Magistrate JT versus ..H• 0 THE REPUBLIC • • . . , • • . • , ,•., . a.., • .. . . • • .,o • • .. . RESPOND.NT S Charge: Cattle theft c/ss 319(a) and 268 of the Penal Code.' JJDGMENT MAKAME, J. .-"• The appellant and his brother, SIIMBEGE NDIGOLO, were e.ch sentenced to the, statutory minimum of five years after 'sere found guilty of Cattle theft. In his Ptition to this court the appellant made the mistake recurrently made by some convicts - that of dishing out unblushing lies obviously cbjivioi us of the fact that appellate courts are furnished with the lower courts' record's so they would know what was said down:there, assuming of course that such records are faithful. During the night of 6th/7th October 1973 the house of 2.W.l RAPHAEL TLATLAA was set on fire and when he and his brother, PATRICK TLATLAA P.W03, were taking out his cattle to sere tsm from being gutted by the firo, three people Who appeared to be Masai drove off ten of the head of cattle. On the morrow the complainant and other people followed the spoors and traced three of the cat-Glo to a large herd of cattle belonging to the two brothers and being grazed by'the appellant and a young herdsboyo The appellant ran away abandpning'both. tho herdsboy and the animals, which is uncharacteristic of a Masai who did not have a guilty conscience, if I may say so. After the complainant and his companions had driven away all the animals the two brothers and another brother fo1loied thir animals and found the Police already 'waiting for them. The brother later charged with the appellan+ told the Felice that the th'ee head of cattle had been brought there by another person, NTOSISI73 LEKANtJNGA, which turned Lekanunga was picked, charged with the two brothers, and quite rightly acquitted. To this court the appellant now says a nurnbr of fotiel inexactitudes. It is certainly not true that P,W.2 Sgt. S1.US told the court of trial that the searbh party consisted of some f)ur hundred people each arrd with a weapon, hence suggesting i:.-t that was why'he ran away; or that P.W.2 said he found that the oomplainants house had bon burnt down a long time previously or that he 'said the herdsboy had told him that the three head of cattle had been mixed with the herd at Mbulumbulu, just to implicate the appellant and his brother. I am not able to disagree withthe finding by the 3earned District Magistrate. Accordingly I dismiss the appeal again'st the conviction as well as against the sentence and order. As the trial magistrate similarly, remarked, it soms to me foolish and r-hly