19771214 TZHC Mwanza1

IN THE HIGH COURT OF TANZANIA AT M\.JANZA APPELLATE JURISDICTION "HIGH COURT CRIMINAL APPEAL NO. -225 OF 1977" HIGH COURT CRiiUi'!AL APPEAL NO. 227 OF 1977 (Original Criminal Case No.~ of .1976 of the District Court of Tarime District a:t Tarime before E.K. Mutaki 1 · ' ~sq., Di~f~ict Magistrate) ··RANGE KJ,rn·.;E ~ o o o • •- • • • • • • • o • • • AP~ELI.i,NTS . DANIEL MtiITA 1 (Original accused) v~rsus '.I'HE REPUBLIC O o o o.o o··o.·o o O o o O o o O o o;o RE:::i,.•ONDENT (Originai Prosecutor) CHARGE: Ci,TTLE ·THEFT, contrary _to sectio·n·s 268(1) (3) and 265 of the Penal Cqde. JUDGE' ME N.T . .These two. appeals were consolidated~- The two appellants . , Rang!= . .Kabwe and Daniel ·Mwi ta were_ charged ·with steal·ing cattle in the district court at _Tarime •. Tnt·ey -were 'found guilty, convicted and sentenced to -5 years imprfsonmei:it • . The complainant i.n this case was· one Haigabe Koroso who told the. trial court that he is a peas.ant in Rana vi.11age. where he ow.n.s so,~\e ,cattle. That on 4th _Dec<2mber, 1975 his grandson r::eturneq. ho.me c"!nd reported that 20 of hi•s ·head of cattle had been sto.len, while grazing. At the time all efforts to trace ·t.hese ·miss"ing· co\vs failed.. But early in January. 1976, that is to say a month later, he received informatit~ that a group :of .cattle had.been seized by villagers in· another-part of the village • . He proceed2d there and identified 6 of the cattle which were produced at the trial as Exhibits after their identity marks had been cstablishedo Th2 chairman of the village Petro Marwa PW.2 related at the trial thG circumstances of the appellant~• arrestc He said that on 10th January, 1976 at about noon as he was about to preside over. a village meeting, he was informed that cattle suspected to be stolen were being driven through the village. The meeting ·decided. to· trace these cattle and when th0y caught up with them · they fOli"nd the two appellants driving· them. . Efforts to ·appr,~hend the two app.:::llants failed because they b,2came violent, but they managed to detain the cattle and later traced some more cattle at the homestead of one Marwa Kirigiti where it was alleged the appellant R~nge had taken them for safe custody. These were seized and inde0d were later identified by the complainant. The two appellants were taken to Court and charged. 000000/2 ' - 2 - tn their defences both of them.1enied the charge. In fact they denied not only having st_olen the cattle but also having been found with the identifi<:!d cattle on 10th Jc=muary as alleged by th8 Chairman. Both of thE:!m stated , 1:lat while the:i incident narrated by the Chairman.was taking place they were not.in the village. They have maint~in~d this stand up to this stage. rh0 l:listrict l'1agistrate n:!j ected these defences, and I think 1 with good' r-22son. 'I'he appellants were_ well. known to the Ch-ai:rman and the other villagersw So there could be no qu~stion of"mistak~n identity. Again I can find no reason why the Chairman and the other villa0ers should havP. decided to frame this allegation against th~ appellants without any basis. l,t the hearing of this appeal 1 Hrs~ Hatovu who appeared for th12 Republic informed me that she was_npt supporting the conviction in reip2ct of the appellant Danie·l Mwi'ta because the only evidence against him was that he was in the company of accused No.l, that is to say the appellant Range. But with respect, I think that if th8 presence of the appellc:rnt Daniel 1-'iwi ta was innocent, there, was no reason for him to deny hnving been found in the company of the first accused when the latter was driving the cattle through the village. In fact both of them became violent when the villagers attempted to arrest them.· If the 2nd accused Daniel Mwita was innocent there was absolut()ly no reason for him to become _violent ahd deny b~irig_ in the company of the other appellanto His denial as well as that of the 1st accused is an indication that they were up to something unlawful nnd that the cattle with which they were found had been acquired unlawfully. And as the stealing of these cattle had taken place only a month previoi.lsly,·th2 inference that they were the original thieves was justifiable. In any event this.co~roborates the evidence of the herdsboy who identified the first·accus~ Range Kabw~ as the person who had visited him in the field while he t,1as grazing cattle and threc1:tened him w:i,th violence if he looked at hi~. No doubt Range did this to cover the herdsboy while his friends were driving the cattle away. F6~ these reasons, I am _satisfied that the appellants' convictions uere well supported by the evidence and that the appi:!llants 1 · appeals against convictiops are_ hath dismissed. The sentence which was imposed is the minimum under the lawo There is· th~refore nothing that can be .done and tht~ appellants' complairits against the sentence of~ year~ imprisonment ari in the· circumstances uncalled for. 0 As indic,:3,ted, with these remarks both ap-pE:als are dismissed o · · .,:., Dei.iv~red in c;ourt. at Mwanza this 14th day of December-, 1977 • • MWAN,ZA 14TH .DECEl·iBER 1 1977"