19820529 TZHC Mbeya

-•--- : Lj l 1_ p fl .14.L .LLL)JIJLJ. I PP ILl TN JUN15 DICTION CRflNAL IPP[iiL NO. 79 OF 19 80 (oRIGINAL CRIP41INAL CASE NO. 172 OP 1979 OF TEE DISThICT COEET OF MAFINGIi DISTRICT AT MAFINGA) BE20REG.IYAGA•EDISTPJCT_AGISTRATE MIChAEL S/O KAD] GE 1ST APPELLANT NAKARIUS IaPALILE 2ND APPELLANT versus TIIE IUIPhJBLIC • ••.. . . . ...... . . . RESP0NDEJT JIIDLDNT SLNATTA, J., These two appeals, which, for the sake of convenience, I have consolidated, are frora.a decision of the district court of Mufindi. district whereby the appellants i'hichael Xaiege(the first appellant) and Makarius Kipalile(the second ape11ant), were convicted of cattle theft, contrary to s 265 and 268 of the Penal Code, and each of them was sentenced to a term of five yearsf imprisonment. There was no dispute whatsoever at the trial that on the night of 5/6th December, 1 978 , two head of cattle belonging to one Hamisi Muhelela were stolem,, A d5y later the beasts were slaughteied in the bush by one Amani John, a representative of BAKWLTA. In his testimony the slaughterer asserted that he had slaughtered the beasts after the second appel1an ad . qsed iip. tp slctighter his(the appe11ants) injured head of cattle 0 Iunani's evidence was coroborated byHamisi Muhe1ela The complainant told, the trial court, inter alia,, that it was the second appellant who led him and a team of guardians of law to the spot in the bush where the bests had been s1aughtered The second appellant disputed this asserting tha'itwas Amanwho led the teen to the spot 0 The 1ened triAL %it% 4A!4AZrtQ4. 4L. - - --V - 2 oomnlainants evidence, and I can see no ground on the record of the case why that finding should be faulted. According to the unchallenged evidence of the complainant, the second appellant is his son—in—law. Not even a shadow of reason was given at the trial why the complainant should have been so wicked as to falsely implicai: such a close relative of his in the theft of the beasts. I would uphold the lower court's decision in so far as the second appellan - concerned. The first appellant's appeal has, in my view, some merit. The v witness who tried to implicate the first appellant in the crime is W5 Thobias Nyondo, who claimed that he saw the appellant in the bush As already hinted, this testimony founi no support in the evidence of any other witness. Mr Kapinga, couritel for the Republic, conceded that the leaned trial magistrate was no justified to find the appellan. guilty. I respectfully approve this concession, For the reasons I have given, I allow the first appellant's (Michael Kadege's) appec- 1, quesh his codaviction and sot aside the sentence imposed thereon. If his personal liberty is not otherwi'se lawfully assailed, the first appellant be released from custody forthwith. The second appellant's appeal is dismissed in its etirety -- 13. A. JAMATTA JU1)GJ. Delivered at rmeya this 29th day of hay, 1982, in the presence of Mr Kapinga, counsel for the Rewublic. -