19780206 TZHC Arusha

: /cc, - APPEL[AT2 JTJEISDICTION HIGH COURT CRIMII'AL APPEAL ITO. 230 OP 1976 a/p CRflINAL APPEAL NO.231 OF 1976 • ORIGrIIAL CRIMINAL CASL"N0. 37 OF 1976 OP THE DIF 101 COURT OF PARE ISRICT AT SfiiTE BEFORE: d. P. URIO, Esq,, District Magistrate KAZOKPMOKI & ANOTHER APPELLANTS (Origin:al Accused0) versus THE • REPUBLIC RESP0DENT .. (Original Prosecutor) JUDGEI;iENT MNZAT J. In Othis case the appellants were jointly Qharged with and convicted of cattle theft c/ss 265 and 268 of the.Pënal Code and each sentenced to 5 years imprisonment. They are appealing against both the conviction and the sentences. Itwas not i1 dispute that on 29,176 one, alimu Ndiya, (P.W.1), had his cow stolen. In search. of the missing cow the - complainant followed hoof-marks whici led him to the hpme-stead of one, }iteho Maftaha (P712), where he found the missing cow tied to a tree outside Kiteho 1 s house. Oninterroating K0iteho (P.712), he said that, he had bought the cow from Kach.ro Moki, the second aDpel1ant for ths.l60/=. According to the evidence of KitehoiP.W.2), Kachero Moki was in the company of Kazoka Moki, the first appellant, and that both aj:ocllants had first offered, to exchange the cow to him for bull0 On telling them that he did not have a bull to exchange for their cow the appellants offered to sell the cow to him and that he bought it for 160/- and the appellants left. One, Nasainbu Halee, (P,W.3), gave evidónce to the effect that he was at Kit'ho Ts home-stead on the day the two appellants brought the cow and. sold it to Kit eho. In their defences both accused advanced defences of alibi and denied having sold the said head of cattle to Kiteho (P.W.2) In his analysis of the evidence. the learned trial magistrate believed the testimony of Kitoho, (P.W.2), and Nasambu Malee, (P.W.3), that it were the apellants who sold the stolen cow to Kiteho and rejected accusods' defences. In their memoranda of aipcal 'the appellants' have recaitu1atod their 'defences of alibi. As argued......,.../2 0 - As ariod bJ 1 earii d W nd-in my view ridntly so, ho evidence was lear±y- ems t ±iC: accused. Both Iteho ama. 1'!aeaaba(r'e), arc neighbours of the apcllants and there was no. dispute that these two witnesses Imew the accused :ory wall Jeofore the incident. The tThnsaction tooklacoin broad day liiht There was no - sugoStion leave clone evi en bhc. io Titnosses had reason to t0001 ups' false siorioc against the appellants in order to causa tjam -Thair nmdoing. This being the oeiuioa t : trial nagisbrato was perfectly right in accepting th prosecution evidence as a true aöcou.rit of wht härponed and r.j acting accusods' defences of alibi. I sea no VSJJG asrn i J f 'or with the learned magistrate's assessment of rodibility. As to the quot ions of law theevidence anply demonstrated that the appellants sold the cow to Kitcho onlr a rnatt?r of hours after it had been stolen from c-umlainant ! s kraal This being ô the trial cor±t was right in invoking the doctrine of recent possession and concluding that the apeellants were the ones who had stolen tho cow from the complainant 0 The sentence of five years imprisonment imposed on each accused ia th mandatory mininun for this offence - In the ovene I agree with uac Republic suamission that • thbo appeals should bc disnisscd in their• •ctirey and I so order. -, V ARU$RA (1c S fiiTLS) 6.2.78 -