19820618 TZHC Mbeya

IN THE HIGH COURT OF TANZf1V.IA AT N3Y AP2DLLA IE JURISDICTION (Pa) CRIMItLL L7P11.L NO., 2 OF 1978 (oRIaINL CR,tLJNi1L Ji?LL NO.23 OF 1977 OF THE DISTRICT C)URT OF IRINGA DISTRICT AT IRINGA and ISMAJTI PRIM.;'hY COURT CRIMINAL CASE NO. 159 OF 1976) Before: H.I. Muznbiri Esq,, District Magistrate EIAMADI SIMBArI'ENE: s APPELLANT (Original Accused) versus THE REPUBLIC: - : RESPONDENT (Original Prosecutor) JUDGMENT J.A. 1ROSO, J. The appellant .HAMADI SIUBff!NE. and two others were charged jointlj with stealing ono hecd ofcattle belonging to one Kidolo K1ip4. The other two were acquitted while the appellant alone V1a cDnvlcteJ. and stcaced to the usual minimum of five rn"irs isonmont The appellant who was initially tried by the Primary Court appealed against the cnction n Sc-rtenoto th but the N. appeal was dismissod..-_T-h r t.hareforep is a second appeal., 1iebrif 'facts of tiie caseare'theso PWi Kidole 9 C a IVlmasai, kept some of his cattle with the appellant. One dayhefounJ. one of those head of cattle, abull,.with one Yohana. Ho asked Yohana howhO-gQt posesi of the bull. Yohana ex)lainod that a certain Ismail had brought it to him for safe keeping0 Ismail, on being contacted 9 admitted that h3 was the me who took the bull to Yohana. Howevr, Ismail c1iiicd that-he had bought it • nHamadi,bhe a)pella t,foi shs250/= and that he had two witnesses to sue iort him in, that claim He named then as Juilus aia aad RicLiar, Kadu4na -/ - '. - t.. When the appellant was o.ntactod he de:iiod that he sold the bull to Ismail Ile, on his part claired that the bull got lost abit three days previously but had not 0 reported the matter tD the owner, PJl PV1 couli not be sure who was toiling the truth so, he caused the appellant, Yohana and Ismail to be arrested and charged jointly with the theft of his bull. The appellant was charged as the first accused, YoJisna as the second accused and Ismail as the third accused During the trial in the Primary Court the second accused Yohana was acquitted because the third accused cleared him when he adi:ittod that he was the one who took the bull to him (Yohena) for safe keeping after assuring him that he had bought it The third accused was eventually also acquitted because he broughc witnesses among whom was Julius Kadutia who testified on witnessing the occason when the appellant sold the bull. Julius said that ho be.lioved the bull had belonged to the appellant0 Thc trial cart as well as the first appellate court bcliovea the witness Julius Kadurna and therefore found taat the third accused Ismail had been sufficiently carroboiated in his claim that he had innoccntl acquired the bulL t would be abvious from the aforcgintktbhe appll-en.t sld. the bull of t ie complaina PWi., .w*tjat the latpr's consent. Ee had no right. tq,do so and the trial court convicted him of the offence of theft of the bul] tihè fir7± appella±e court C nào tho'sáhi c6uioñ. can sdoio graundforfthi'1tingiho - &'wo' lor ourts. ThQ '- wththo -bathory iniihuii. 'I hdrcforisthiss thi & appealin its ntirety :. \ \ J i. MROSO MBY :1 JUDG 18th' Jmio, 1982. \ JAM/ATM 9 iima. A