19820529 TZHC Mbeya1

UJi L4ZihE. AT 1ti3i]YA APPELLATE flTRISDICTION CRIILLN[iL APPILL NO. 79 OP 1980 (oRIGINAL ORnaNAL CASE NO • 17 2 OP 1979 OP THE DISTRICT COHET OP YEFINGA DISTRICT AT i\L[FINC-A) BEP OREGIOlYAGANSQ..—DICTMAGISTRATE g MICHAEL s/o KiDEGE 1ST APPELLANT I4LKARIUS n:PALILE 2ND APPELLANT versus TIlE REPIflBLIC . • • . . . . . . . . . . • , RESPONDENT JTJDCiENT SMATTA, J., These two apDea1s which, for the sake of convenience, I have consolidated, are from -a decision of the district court of Mufincli district Whereby the appellànte•MIchae1 Kaclege (-the flist appellant) and Makarius Kipalile(the second appe11an -b) were conictedof cattle - theft, contrary to s. 265 and 268 of the Penal Code, and each of them was sentenced to a term of five years imprisonment. There was no dispute whatsoever at the trial that on the night of 5/6th December, 1 978 , two head of cattle be1onng to one Hamisi N Muhelela were stolei A day later the beasts were s1ughber4-in the bush by one Ar.iani Johns a representative of BAIC!ATA. In his testimony the slaughterer asserted that he had slaughtered the beasts after the second appellant adeqsted hintp 1tpghter his(the appe11ant) injured head of catt1e, imanits evidence was co±roborated by Hamisi Huhelela. The complainant told the trial court, intera that it was the second appellant who led him and a team of guardians of law to the s the bush where the beasts had been s1aughtere N The secor lant disputed thi asertihg that it was fmanwho led the team to the spot. The leo2ned cal arte 2 * complainant's evidence, and I can see no cwoLuid 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 triai why the complainant should have been so wicked as to falsely implicaa 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 appellant concerned. The first appellant's appeal has, in my view s some merit. The n witness who tried o implicate the first appellant in the crime is ?5 Thobias Nyondo, who claimed that he saw the appellant in the bush As already hinted, this tesirnony found no support in the evidence of any other witness G Mr Kapinga, counsel for the Republic, conceded that the learned trial magistrate was no justified to find the appella'. guilty. I respectfully approve this concession. For the reasons I have given, I allow the first appellant's (Michael Kadege's) appeal, quash his conviction and sot aside the sentence imposed thereon. If his personal liberty is not otherwi'e lawfully assailed, the first appellant be released from custody forthwith The second arpellant's appeal is dismissed in its entirety. B. I. S,.dUiTTA JUDGE. - Delivered at Mbeya this 29th clay of Nay, 1982 9 in the presence of Mr Kapinga, counsel for the Republic. • __ 3. . idiATTA - . r Dr1 •-, - -. . : . .J uJ'-Ji -- • '.