19800917 TZHC Dar es Salaam

THE HIGH COURT OF TMTZIA tc L AT DA1 ES SALA1M APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 133 OP 1979 ORIGINAL CRIMINAL CASE NO i499 OP 1978 of the District Cburt Of e.s Salaath District at:. .KISUTIJ'. '. S Before K.S. KASSIM, Esq., SENIOR MAGISTRATE. PETER,SIIV1BAMWAKIIOTI'....,.........APPELLANT" versus THE REPUBLIC...... ... s... •• • .'... . . .RESPONDENT CHARGE: 1st Count 'tea1ñg.by servant c/s 271 & 265 of the Penal Code. 2nd Count: Slealirig by servant c/s 271 & 265 of the Penal Code. 3rd Count: Stealing by servant c/s 271 and 265 of the Penal Code. CTUDGEMENT - KflYIICHA, J. -. This is an appeal against conviction and sentence. The appellant in this case was convicted on alçcot.thts of srea1ing by se'vant c/s 271 and 265 of the Penal Code and sentenced to a concurrent sentence of five years prison - ment. The facts of the case as found by the trial court. as given in the lower court judgernen't which is reproduced below for easy reference. •- Accused PL1ER SIMBA MWAKIKOTI stands charged on the first six counts with stealing by servant c/s 271 and 265 of th,e Penal Code. On the following six counts he is charged in the alterntive with stealing by agent C/s 273 (b).ibid., The total amount he is alleged to have stolen is Shs. 70,397.50 the property of Associa- ted Enterprises Ltd. Bar es Salaam. • 'Thecase for the' prosecutiOn briefly is 'as follows:- On 1st June' 197, accd.' w appQ44ted 'clearing and for- warding clerk, by Associated. Enterprises Ltd. at a monthly salary of Shs.3 9 0001-. On24th JaIy,.1978 he obtained from the Manager ZAV.ALA (Pw3) Shs.1,135/- as proved by cash voucher No.330 (Ex.3). On 4th August, 1978 he obtained from the same witness shs.30,000/- as proved by cash voucher No. 359. (Ex.'2). On 5th August, 1978 he, 'obtained from the same witness Skis. 400/- as proved by cash vou.cherNo. 36.5'(Ex.5). On 9th Augu.st.,'l978 he Obtained from the Sanie witness Shs. 30,000/- as 'proved ,... 4/2 0 -• -.2-- by cash voucher No.372 (Ex.1). OnL4th August, 1978 he obtained from the same witness shs. 1 9 862/0 as prøvedby cash i/oucher No.390 (Ex.4). Finally on 13th June, 1978,he received shs 7,000/- from PW.5 YU3UALI Oft: behalf of his employer, as proved by receipt No.59 (Ex.7).:. The total sum received by accd. is,Shs.70,397/500 The Shs.. 7 9 000/- pàidbyP.W5 was ines.pect of clearing and forwarding charges of goods consigned to tiNICO and the ,rat was for. payment of various port charges for goods .e,onsigned to or exported by other clients of firm. . . •. On 18th Iugust 1978, PW3 demanded, from aced, offi-. cial receipts for the ambuntstaken.by aced., butaôcd..' assured him that. the port authoritie neve' issued re-- ceipts beforëthé consignments were oleaDed from the Pqrt. Aced, then abóonded and was rieer seen again by. PW3 uhtil after his arrest on the foIlowihgmonth. In his defence he elected to give evidence on oath. He had no defence witnesses to cail. He at first àdmi-tt.s1 to have been engaged by the firm as a clearing and:forwar ding clerk but in cross-examination claimed tohve been.. one of the directors of tho. COmpany and also a partner0 There was he cOntended, a verbal agreemen -t betveen them. If at. all he was a director. or a partner of the firm, he oertainly wbuid have made his claims to hi fellOw di'.ect PN2 : wheh..aCOd.was given the opportunity bfcrossbxamin- ihg him 0 He OhosO not to . say a word on being a director rther when in.fact he heardPW2 day that he was :merely engaged as a clearing and forwarding clerk, The. bash vouchers Ex.1 to 6 and the±eceipt Ex7 are in black and white ard. speak for therne1ves. Th?y d not show that those sums were paid t.occd', asdieet.O"s'e- mutieratons are partner's share. Accd. signed each and "every one of them, and he is literäth eftàth to'knOw: hat tl±ey all show that the payments were . for clearing wardin of goods of the Company....1lieiite ..: H.The other limb of his defence is ,tht....he 5hSe30,Q00/ 0 which hO admitted to have obtained f±orn PW3 On 9th Augu.st 1978, against cash voucher No.372 (xa1)was'passOd.o.ver by 'him to a railway clerk whose name he does not know. Th'e., receipt which the railway clerk, gave him aced* ci" ained iswith PW3 ZAVALA, Again he heard PW3 affirm that accd. never brought back to their office any receipt, never- theless in cross-examination he failed to challenge him at ail,..that the receipt for shs.30,000/- was with PW3 This court' is satisfied that accdo wab an employee of: the firm and that he stole shs70397/50 the property of his employer.which came into his'possession byl virtue of his employment. . . . . Accd.'s defence, which has received deepand care±'vI consideration is rejected as manifestly false. The pro- secution case on counts one to six is found tobeproved beyond reasonable doubt. Accused is acquitted on Counts 7 to 12, and convicted on counts 1 to 69 K.A. KASSIM - SoM. 9/5/79 . .. 4I Mr. Huka appeared for the tepu.blic and:Mr. Mwailurig appeared for the appellant during the hearing of this appeal. I have read the lower court proceedings and considered b.oth counsel's subrnisions before this Oourt and I am fully,satibfiei d that there was sufficient evidence bfore the lower CoUrt ju.stifyfrig the appellants conviciOn on all the six counts, The appeal is for the above reasons dismissed in its entirety Delivered in open Court this 17th Day of $eptenibe 19800 ,L -elta_ JUDGE. 11th September, 1980.