19780526 TZHC Mwanza1

IN TliE HIGH COURT OF. Ti~Zi\;•!IA AT,MWANZA APPELLATE JURISDICTION' .. -~, ., . .... i-ftGH COURT CRIMINAL APPEAL Nn~' ~395 ;OF 1977 ( .igip.al Criminal Case No~ .191" 'of 1976 of the .D°istrict Court of 'Muso!lla District at M~soma - Before J. 'S. Kanya.ma,. E..sq.,... Resident _Magisf'ra~e)-'': . . . . ~ . . . . . : .: , ... .-~ . ZEDEKIA ·o MARWA sio .ZAKAYO e e • e ~ • • • • • ~- ~- • •· e e • • • • • •· • 0 APPELLANT .. ,: e • e e • e O O (Original ~c~used) ·t le •• THE RE;PUI3LIC ••••• • ..• •. •. • •·•. •. •·• •• • •• •·• .·_.; •••• •. •·•. • •••• • • •• RESPONDE,NT · (Or~ginal Prosecutor.) ll ·JUD -0 EM E.N T -.The appellant was charged with and c.onvicted of Stealing, by servant contrary to-sGctions 271 and· 265.of·the,Penal CO<:le·and.was J. sc-mtenc.ed to five' years imprisonment. ·He is now appealing. , -. · . ' The facts of the Prosecution caie· which, incidentally, the ._learned tria~ magistrate accepted and acted upon may, briefly, be summarised as follo~s =~ The· appellant was at the time ·of. :his • arrest a <;:ashier employed i.-y_ the Mara/Cotton Industries Limited, (hereafter to be called _by it•.s . .::ronym_ MICO) a· sub - sidiary of the Tanzania Cotton. Authority •. : His. duties included collecting money .from the. bank·' an,4 affecting pay~e~ts for salal:'.ies, a.llowances and impr.ests e. t.c. : · On· 13/ 4/76 one .. Mus·a Led. {~WS) an Ass1s·tant Manager of KibaFa Ginnery, and one,. Mk_aka Mgasa (pWG) ·, a., . cashier of Mugango Cotton Ginnery met at -the- Mi~o. headquarter:s! for., tl:le· ·. purj_)'Os:e. of. refreshing th!.'.!ir imprests .• · To tnis E?nd two cheques -Ccoilectively marked Exa-.H) fbr Slis.15.,025/10. and ~hs.13t2~7/4~,. respectively wer«f.·, p~pared ·and· sent for signature. It was .-then d::s~overed. tha.t. the· . authorised -cheque signatories were not pre,sent. t The-,app_ellant. the'1., · reported to ·the .Chief Accountan~· of· Mico, o'ne Nyq]cangara· Mbogci (PW9J. tl1at he, i.ie.··appe°llant~ too did not have sufficient =cash in his _s_af.e .to. m~et the two 'persons• requirements." The ·tot·al amount-_ of cash requirep. .. w_9s· Shs. 28,322/55. Eventually PW9 decided· to borrow the amount required by PWS and PW6 from the Tanzania Cotton Authority. He tal!:ed the matter ove~ with ·the T.C·.A. · General Manager first- -and then put down the request for Shs.>28,3:22/55 in writing (Exh.E)·. The letter was,. however, addi::.essed to the Acc·ouritant of the Tanzania Cotton .Authority. PW9 ·to.ck the said letter (Exh.E) personally-to one Julius.Msaga (PW8)· of the T.c;A. who then )repare<f. . a payment voucher (Exh.G) 'on whose - strength he, PWO,· prepared a. cash cheque' (Exh.F) in the sum of Shs.28,,322/55. PW9 s_igned the payment voucher· (Exh.G) ·as the- receiver of the money •. Thereafter PW8 .ac_companied_· . by PW5 and PW6' went: to the bank and cashed the .cheque. They returned. to, · PW8 1 s office whereupon PW8 paid out cash Shs.13,297/45 to ·PWS and.,Sbs.· 15 ,025/10 to PW6. · Both .PWS · and PW6 wanted to -issue receipts to PW8 but ·. the latter stopped them and "advised" tbem to .issue the receipts. to.·:t11e: ca;;hier of.'.Micot i.e. the appellant.. This_. they, i.e. -PWS and,,PWE?, -did. before ·they .retur_ned to their res·pective places. I • Meanwn1.le the two cheques which· lacked s~gnatures_ of the authorised . eheqiie• E1ignatori~s remained with .the appe)..lant. - On 17/4/76 the- same., .(Exh~H): were duly signed by the Mic·o, Gener.al Manag.er,., one· Eli~safu Masigi:!: Lima ( PW1) an,d the' Mi.co accountant, · one. Philip Peter Matayo ( PW2-) .... ·Thereafter the appellant· escorted by No.B. 9455 P~C. 'Iddi, · (P~1Q): took the two cheques- to the .bank·: for ·encashment. He was paid <:>Ut the money ·by one Regind~I:'. Kursirigh· (PW3) j .a cashier· at the ·National Bank of Commerce, Musoma! : _The· money was never brought to account. This wai;; . disc.overed .py the Internal Audito.r,.one Justus'John.Kobasi (PW4). Justus testified to the effect that.on 6/5/76 he conducted a surprise check on the accounts of the appellant. The money drawn on· Exh.;'I-I, _Shs~2B_,322/55-, was not entered in the cash book by·-the appellant ns ·he was: ·required to ·do •. 'It. was not in the· :appellant• s iaf.e- ~1th~~. Thcrefqre, although the books did not s.h_ow any sho1:t-age th.ere was, .in. · _ actmrl .fact· a cash deficit to the tune of Shs.28,322/55. The matter was accordingly reported to Mr. LiMa (PW1) who then eventually called the cppellant in his office. In the presence- of Matayo (PW2) and Justus (PW4) Mr. Lima (PW1) asked th.;; appellant where the missing amount was riu.~/2,; whereupon the lat:ter repliEJd that. it. w~~ -at·n1t·.nome i~1 Tarime and asked for a couple of days to produce it •. Nevertheless_ the matter was reported to the Poli.ce who then arrested the appell-qnt. :.. BW1_ provided the. ar!:e-stin~ office.rs, non.e o-f wh~>rl). tostifi.ed at ,toe -trial, w.ith_ a motor vehicle. wi.th which to drive with the appellant to Tarime and fetch the money. No money was, howe~er, produced and eve_ntu.ally:_ _the_ ..aJ;p~_llant was brought to. justice. In his unsworn statement in defence the app2llant said that on an unspecified date in March, 1976, his brother-in-law, one Michael Mwita (DW2) arrived in .the evening fro·m: · ·Ta:ri•me· i'lnd told· him that ·he had come to buy motor 'vehicle spares. However, as he, i.e. Mwita, was going to spend th,~ night in a gut::st house he asked th~_ appellant to keep the money which he, Mwi ta, brought with him, ~hs.30,-0~-9/::;:,;. ..:£or fear that if he, Mwita, retained the same on him he may be robbed of the same by thugs. Since then he, i.e. appellant, had an office to himself and a safe whose 15:eys · he had sole custody he agreed and kept th_e _money. On the following Jmornirtg Mwita did not turn up as he had promised~'~- ·Later:··the appellant recei-vied information that Mwitc~. had badly been assaulted on the previous night and that his condition 'was se::ious. At that 'stage the_ appellant decided. to kcep.Mwita's money in the official safe until such time when Mwita would feel better and turn up to _collect it. ·The appellant went on to say t_hat while the money· was still in ·the sufo two' ·cashiers from Mugango · a·nd Kibora ginneries ~·respectively, dame to collect impr?st mont:ly. Two c·heques for the totnl amount of Shs.2S,322/5, were written out and· sent to the Assistant Accuuntant for signatures.,: · Thereafter it was discovered that the· s-econd signat~.r.y, to •wit the General r-1Icmager, was· away on safari to Mwanza~ · However, since the money was urgently· required for payments to casual labourers at Mugango and Kibora .· ginncries and.since there were no sufficient funds in ready cash to.meet the demand and._~rther since the two cheques, Exh.H, wero waiting f~r one and the second signature only·and furthermore-since there was his brother. in-laws' r~ady cash, .::;hs.30 7 000/=, in the safe ho, -appellant decided to pay out from his brother-in-laws 1 . cash and repay · the/ money· on the General Manager's return. This he did and both cashiers to whom he paid out the· mon8y duly issued him with receipts in acknowledgement th~reof after· signipg for the money _9n the relevant payment vouchers. ' · .· ' The appellant went on in his 'defence to·say that towards the end of April .or.in early May, 1976 the Internal·Auditor inspected'his acc0unt books and found his, i.e .. appellant's, accounts in order. The payments which were made to the cashiers from the ginneries were entered'! and accounted. for in apprbpriate cash books in respect of cash transactions with gl11neries which, incidentally, the Internal Auditor did· not inspect. The appellant further told the court that during the month of Mny, 1976 he was approached. by- the cashier of the Tanzania Cotton Authority who then d._emanded ttie repayment of a· loan allegedly° advanced to Mico on- 13/4/76.. He~ iippellnnt,- expressed ignorance as until then he was comple. tely unaware of. the :5aid loan. PW2, Peter Matayo; was askc..>d about ·the alleged 1oari :but he, ·i.e. Matayo, too expressed ignorance. · L-ate:r, however, it wns discovered that it was actually the Chief Accountant, Mbogo (PW9) - who asked for and obtained the said loan. The letter in which the Chief . \ Accountant asked for the loan was not stamped as was required ifl such casGso Further he, appellant,.was not: served with a copy of the letter so'that he could issue a receipt. Nevertheless he, appellant, was later called into the office o'.f -the General Manager~i :: He responded and found , the , ussistant- accountant (PW2), the Internal· Audit-or- 1 ,-,q.,' and the Personnel Hanuger there. He w.ns asked about the l_oan and he·. denied any knowledge of the same. : The appellant told the trial court that he did ·not -:admit to nnyone that he stole the money. The others tric,d to force him into and mitting but he r..:.::fused. Nevertheless he was arrefftod and taken to his home. A searc_h was conducted but nothing was· found. However, Shs. 7, 000/= which were found in his fathers house were seized~ A~ ·:.t;:~gards the proceeds of the· ·two ·chcque·s .' Exh.H, the appellant said that" -he -locked the same in th'2i- safe unti:l 19/4f76 when his brother- in-law came _an9_ collected his money.· ...• •·./3 • . ,.. : . ... ,., ·'-· 3 ,..... . . .. , .· . O~e M~mbo Mw:L°ta (DW2) t;,;stified t;.o the '.eff~t that-::in, March; 1976, . he drove to Musoma to purchase ·spare parts for his buses and lorries. He . had witp ,h_im, cash, Shs.: 30,000/==.- Since ·he. arrived in ·the evening and . ;ip.~ .tp '_~p$nd _the .night in a. guest ,house h_e. decided . to :and .1did deposit the _'_lijoij~y~ wi;,th° -~~:e . i~l?,PEil16nt.· whom,. incidentally,· he described ns . M!s ,brother- ,. _i~.;.~_aw~. :·to,r"J;"af,e··cust~)dy. , Dur.i:,t1g the _night he wen·t .to Honge.ticf ·bar for ' · ,.. 'n drink iri the course of which he seduced a: y1omano Later be d'.rove towards the said woman's plncc. On the way his car ·broke down whereupon he sent . _his. woman.~(.)- gq and 1 hire a motor yehicle for him in .town-. /.rl'he woman went 'o.i-i~y 'bp_t sh"e· ~Uq no1:; r8turn. Eventqa_lly: h,erwas· .compelled to ·spend the n;i:ght in 'his.· motor.vµhicleo As. '1e did· so he -was later,attacked 'by armed· 1 thugs· wno· dema~ded money from hi.m.,. in the, end the said thugs got away 1;:l:th h_fs Cf1.sl1, s,~1?~1'50~/=c, _and c·.~ot'hes a;ter i:nflJcting fiv~- w.ound's :on "hi~• As ·a result of the attack he lost c0nsciousn9ss and he only.' regai:ned it · on the following morning. Eventually he went to the Police Station and r9poJ:''teo the robbory. He wa.s.,. s~nt -4:0. the hospi:tal where he was treated. ·. On 19/4i76 'he w<:~nt. to :the appellant. and collected his· money from ·the nppcllant's: office ·safeo • • ' • I :· • • ::: • ·'. :· . The learned· tric;il. magistrate ,reviewed the ·-evidence before· him and 6amc·:to the conclusion that the Prosecµtion · stonr .Wu.S a true~fone·~and proceede.d · to con~ct the . appel lan·t. ·. . . . .; ·.• ,. . It1_'his ·p~~it3.on .of appeal .which ~as-'.dr~wp q.n his behalf by .learned counsel, Mi:.:.· Ma~cnibn, · the appellant: adgances t}:lree-:grounds of appeal, r1a~siy ·'.th,at(".'.'.'. , ., . :- ::_. ·.·. '._•:'. ·.. _:·: ;_ !; ·,'.·:, . '.. ; · · ,':j · · · . ' .) ··--.· ·... .t • · ·.- f. ::_ -:.L·i. . ~ - . '··.·~,i1. .Thcr_e w_as not ;suf;ficient,. evidence j:o -prove that the ~pp"ell~'nt !<;new o,f the allegecl· :loan. of . S):1s.2B,322/55 fro'm. ,Tanzania Cotton_ Authority to : :. . : : ; ._ .:' Mara . -~. '. ; \ Cotton'. Indus.t;ries . ,. -Ltd •. ' The 1-a~k :. of wr.:Lt.ten :evidence that PWS Musa:' Levl, nnd p'w6 fv'Dcaka Mgasa,:· w~r~ in: fact paid the' ·i;_; __ . nll2ge<l 28,322/55 0:oy Ptv7 M$aga on 13th April,"1977" would have the effe(:t of.confiri:ning the. appe11aht's position that :the: :appelLanc-. paid PWS. and PW6 out · of the 30, 000/=. which DW2. Michael Mwi ta had le·ft in the cuStody.c;>f the appellant. The len.rned Resident Magistrate ,should have.held that ,in. th~_.c;::ircum~tances of this Cuse, it·:was ·not nccesifory ::for. the appellant to inform· bis superiors·aboii:t paying the ·ai:nount req-µired by, Mugangb and Kibara Ginneries out of Michael . Mwita's . . 30,000/c.". J il lii' ai'.:guing out this appeal before. me learned counsel for the · , ai)i)cllaht inac;le capital .out· of the· fact that the letter in which·:the loan WQ.S. purport~dly _requested was.written on an unneadcd paper and; i·t was not even copied tb thG appellant~ . ;He: contended. thcit even. the de~ivery of the snid letter, Exho 1 E 1 , wa:s Stibjc:ct_ of contradictory statements :ae~ord.ing to 'tho dvide·nce of :lts author, PW9; and its r~ceiver, PW8. According ._t9 · Mr. :Mi:i't-emba•ipW9 said in· his evidence at th_e trial thc1t he too~' .tl:le 1-e:tter and de'livered ·1t in pers1..m to PW8._ _The latter however said that ·he only - knew- thnt ,the ·1ettcr _was written by PW9 bec.ause h,., was convers,ant -wi.th his · · signc'ture. 'Mr. Mntcmba c_ontended further thnt since· the amount i?)volved wc1s b:1.'g and yet· ther'e was no record of the transaction the . ,learned. tr,ia:I! •,I rria.gistrate should hw.vc found· that the alleged transaction never. ·b::,ok . · plnce. :7~, howevcl:'., it did, submi:tted Mr. Mat.emb.a, then th~ oni.y pe;sons .'who kn~w ab•)ut the loan on the Ai9-·e. of Mico were PWS, PW6 and PW9· who then mu~t h_cWe conspired together: arid 'shared ttie tnor{ey. ;c-:~~~.i' .., ~--. , .. I.·. . ;. .. : Sta&-....l.ng w:ith'. ·the first ground of appeal ·it indeed is :true to.:. f,ay thnt the letter which PW9 wrote to the Tanzani_a Cotton Authority ask,ing for a:· loan·_was not copi8d tc, the appe°Ilant. One; indeed, wou.ld hav~ . expected him, 1.e·. the appellant, a~ ·ttie_, 6ash4.2i:-, to: ~c:iv~ been serve9 w~th tJ..copy •. · PW9 himself, ·ns the author'of 'the ·1etter, Exho"E", did not ~ven claim to have served a copy thereof, i.e. if there was any, on the appellmrl:-. However, there is the oral testimony of PWS and PW6 beth of whom ••••• /4. t-..:stifi2d to the cff'-'ct t-h~t aft~r•··r~c~ivin(J the m1.mey :fr._;m t~~ ;·.~.An.'::r ti1;.:y went t; th,.: ;::j)i),;ll,mt m1d rs~:,orted t .., him cCC 1 r(li_.1.glyo To he p,recis0,- in his evidence in-chiuf on this aspect of th0 c::ise PWS is reCC?f:ded to have ,s6.1d nnd' I. qut)te from tho rccurd :- "We followed him buck to his ·office" ::li:: 'the Cotton Authority. I was given·n to'tal of Shso13,297/4S ~hich was the · c.mount ask,;;d for. Aft,~r we rr;-1ct ·b_een pjid _t'he murjey we retµrnesi to the Ka.po.mu ( th~ SWcthili equi Vu.lent of Mico) office where. I re;1orb;;(:l thut. I had recei vod thu nic.ney to the accused. o o o o" Likewise, PW6 testified. to the eff 7ct thi:!t paymentwas actually m21de to him by. the T.C.A. cashier, PW8~ Ther·e2fter he -:md .PWS wanted to is:::tw receipts ncknowlGdging receipt of__ ;the m~mey from the T.C.l~~ cnshh,r but. PWB stopped them 2nd tol\1 them bi issu_e the riclCc:ipts tu_ ~he, appellant ns - Mico cashier~ PW6 ctnd his companion PWS_ then went to the appellant nnd issued hi.ni with thi2 rt2ceipts.·; . ' . - .. If th2 evicl-.::nce of th,?se two·witnesses, PWS and PW6,- is.b2liev(::c1 ·,;~ th.:m it ,will not b2 correct' nnd app,-;llnnt w,uld hnve lL:.ad, to ·say, thnt the c1:_.,p,1llant was ignornnt uf the loan the procei...>dS of which were used to refresh imprests of Mugc1ngu end Kibnrn gi1:m,,rics. . This will still be so ;,the· fact th::_,t there is n:) indicc1tion whnt$66;,i~r thc:it Exho I E' was "'ver copi,~d to the appdl2nt notwithstanding. Clearly the: ;J,earned trinl magistrc:1te bl'!lieved PW5 0.rid PW6 on this asp2ct uf the case anct·r see no r0c1son why I should differ. Admittedly, it do<}s nut sound normal_ that where payment is maqle, say, by 11 A11 t(J 11 B" and acknowh:dgemc.?nt therer:)f by 11 8 11 is exhibited in resp~}Ct. '?f "C". However, in the instnnt cuse the rens:m of acknowledging recqipt ,of th(;l. rno~iuy by PWS and PW6 to the appellant when in nctilal fnct pn.ym(~nt to them w.:cs made by PW8 wc.s 0xpL::iined_ by __PWB_ hims.elf who, incident~tlY, said that hes wus thci one who ,x1viscd PW5 nrid. PW6 fa') issue the receipts to the appellc1nt, a~1.d PW9. Both th2s,2 _wi tnesscs .said thut it was becnuse. the ginn,.,ries had no clir,:.;ct contact with .the ToCoAo And fur:t.her thut nithough the money was paid t,_:; PWS and PW6 dir2ctly at the· ToC~Ao it was,. in effect, Mica which pnid thGm. Whnt2ver may be the merits of the cuurse, of action.· advised by PW8 and PW9 on this point I rGmnih of the firm view tha't manipulation of any receipt, for whntever good intentions it behov-es the .door, s,.) that it shows the position QS it should :otherwise have been rath~;r thnn Whut it actuully is must be c1u:,reca'ted in no uncertain terms •. This is so not only beco.use it, in n wny, misrc.~presents the facts but_ o_ri _.i.lnscrupulous person will also find the fi(;")ld i."".ll lnid out for himo On my ·'part I am~ howeve,r', sati13fi..-xl that the receipts it~su.x1 by PWS and PW6 to the appellant were in resp12ct of the money rec0i vud by them from thG hand of PWS and. that the snme were not-manipulated by them, i.~. PWS nrtd. PW6, for any illegal purpo~~s but for rens :;ns ·adganced by PWO nncl PW9o In :the circumstnnces and more pnrticularly on the evidence of PWS and PW6 whichwas.prupcrly admittpd it is sufficiently clear that the appellc.... .: knr~w nbout the loar1. This d:i_sposes of ground noo 1. Turning to the second ground of npp0al, with the greatest respect to the learned counsel for the o.vpellant I hasten to su.y tha_t th~~e is, in fcict, more than sufficient eyic'!cnc~ 9.f payment to PWS and PW6 by PW8. The suicl evidence is all ornl but direct and. this was given by PWS, · PW6, . PWB 0.nd PW,9. To my_ mind oral evid,in<::e, when believed,_J-can turn out to be:. the best evic1ence as it. is from a per~on who has a direct and personal ~now1edge of whut he/she is~talking_about • . In his subm~ss~ons the learned co:unsel: for thu appellant·,urged th2t,the i;;!Vidence of these four witnesses, thnt is PWS,.PWO nnd PW9 ought, not to hnve been accep_ted 1:>ecause being the only persons who kn0w about the lonn arc the ones who, must have· stolen the money~ With resp,.:ct this argument is devoid of meri to I have not been able to trace,. everi a grr-,:L ui- 1.:!Viderice to show th2t these. four persons C:Jnspir(-"d together and stole th,..: mo:-2uy. As a IT!attc.:r of f2ct there is no .evidence to show that apart from thci.;:- pure.:ly off,icial con.nuctions there :was any persc;mal rel~tions,hip ~be:tween them or nt l<;"ast only som<2 of them. in the circumstances I find that any likclihuoc.: of the existence of a'ccnspiracy between PWS, PW6, PW8 and PW9 as·suggested by Mr,. Mab,=mba exists only in fantasy and not in reality. At th0 same ~me th0 uvidence of these fuur witnesses, jointly or ,severally, 'on thtf.::i.,ssua o! payment to PWS and )?W6 by PW8 does not need corroboration as a 'matter of lm1 ' r practice.. Therefore the l_ack of. uny corroborative evidence, oral· or· written, that PWS. and PW6 were paid a total sum of _J:hSo28,322/55 h.y .£W'S, i's: of ~10 effect at all •._The fact remains..\hat on the oraL evidence of, PWS; .PW6; PW8 .. · • •• o ./5. -«. - 5 - and PW9, such payment was indeed madeo This disposes of the secunc1 ground of appeal as laid in the petition of appeal. As aforesaid in his defence at the trial the appellant said that he paid PWS and PW6 himself and he did so out of the money,Shs 30 7 000/=, 0 which DW2 had asked him to keep for him., The learned trial magistr □ tl!, on the evi.~ence before him: was clearly n:Jt impre::;sed by the appelL·ut' s story.. I think he was perfectly entitled to do so. At least it is common knowhx}ge th::Jt the ap;,ellant did n ,t have the official funds to meet the requirements of PWS and PW6., It was for this reason coupled • with the reason that the authorised cheque signatories for Mica were then 1 nut available that made PW9 go to the T.C.A. and borrow the money. The appellant's claim or allegation that he paid out PWS and PW6 from Mwita 1 s money wa~ brou0ht forward for the first time when the appellant w2s callf.:d upoil to make his defence. Mr. Matemba appc.:irs to have conceded to this and hence his contention that it was not necessary for the appellnnt to inform his superiors the suurce of the money which he allegedly us~~ to pay out to P\IJS and PW6. Without beating about the bush I am of the • considered view that in all the circumstances of this case it was necessary f0r the appellant to inform his superiors, at least PW9, that he would pc1y PWS and PW6 out of some i,rivate fundso As it is it is o:.1ly the appellant claims to have used Mwi ta' s money.. As the learned H-~sident Magistrate pointed out in his judgement it, indeed, may be possible that he kept Mwita's money in the safe but what evidence is there to show, albeit on c1 preponderance of probabilities, that he used it to pay PWS and PW6? Apart from the appellant's own word of mouth which, I ck!:'.'e say, hardly rnises any reasonable doubt in the mind of this cr)Urt on this aspect of the case, I find noneo To rr.ci the appellant's clnim to have paid P1.IS and PW6 out of Mwi ta' s money sounds an obvious after thought c1nc1 i t was, therefor,~ r rightly rejected by the trial court. Both PWS c.1nri P\iJ6 were not cross - examined .-:it all on the question of the alleged payment by the appellant from Mwita's (private) funds. Y~t the appellant availed himself of the services of l2arned counsel at the trial. Therefore, on the thirrt ground of appeal I am satisfied that the learned Resident Magistrate was right to hold that i t was necessary for the appellant to inform his superiors about paying the money required by PWS and Pl~6 out of Mwita's money which, of course, he appellant, c1ic1 noto On my evuluation of the evidence I am satisfied that the co,1clusion arrived at by the l~arned trial-magistrate was the only reasonable one in the circumstances of ·the caseo Apart. frc3m the evidence already discussed hcreinabove there is also the evic!-..cnce of PW1, PW2 and P\-!9 to the effect thC1t when asked about the money the appellant replied that it ~as at his home in Tarime. and asked, for two rtays in which to go and fetch 'it.' Tl1'.c! appellanti attempb~d no explanntion. whatsoever as to how and wh1y the money found its way to his home at Tarimeo The money wus, however n~ver brought nor was it recoveredo In his defence at the tr:j..al the appellant denied ever admitting thiJ.t the mo1:.2y was at his home. 'I'he is~ue h~re is purely that of credibilityo Again, the learned trinl magistrate who had the advantage of seeing and hearing the witnesses believed the Prosecution witnesseso I have no cnuse to disagree with him • ., In the event, like the learned trial magistrate I am satisfi(:d that the aiJpe:llant stole the money with which he was chargedo The ~- conviction which is supported by ample evidence is therefore soun,.1 in law ..,, and it is hereby, accorctirigly, upheldo The sc,mtence of five years imprisonment is the minimum which the trial.,..court--cou'1'i:Lt·:i.1llqoseo Since this c~se involved JJremedi£ation 2.nd <1. "/ ~L: "'- ~, . - deU,e\';!.1:at0 ab~se o~>l:'iust the appell<3:nt must consider himself lucky to I I .. I t h a.V~-~f!JO /,· ·\ .;.. h ~ b . . t . 1 ?;i.:'~½l:¥:'it IA•,'fl-\ii~~ ... ~-e~ are m1.m.mum sen enceo . 't! • • • f ·1 . . . . l . .t l'.l~itJ:f,~<iLf:tnal res1;11 t this "cppeal ai s arid 1. t 1.s d1.sm1ssec 1.r.. 1 s h f....... en.. ·- e. t y. ;., ·'' ,,.- . ' \ , . Deli vercd in court at Mwanza this 26th May, 1978., CERTIFIED THI~\ro B ~':-TRUE C ~ F ' __TH~ (SGD) Ho Eo D. SISYA /e,__,;--:,..Y · ··. O ORIGINAL--;-~ , ~ , JUDGE0 \,Gs-fi{¥·-;~~ISTRARr------------ -. . · • ·MWANZAo '!!---- h ,