19841027 TZHC Mtwara1

AT M'l'WAf~A ...__.,__,,_ .._______,..___,,.,,.., ______ _____~,---- APPELLNL'C JURISDICTI GN ,..,.,._,,,.. CRH11NA.L-APPEAL NO~c 5 7 01-' 1982 ' C/F. CRIJViIN",-1..L . APPE,\L NOo 58. OF .1982 ORIGINAL CRLiINAL CASE l\iOa 74 OF _19.82 OF THE DISTRICT COURT UP ~1ASASI DISTRI¢T AT MASASI BEFO_RE: Ao Yo KIBOl'JA Es:;o, DIS1'~CT MAGISTRATE C~5982 PaC"o HAhI3I uoao.;o_ooao~-~ •• ~.oa APPELLANT ( Original Accused) Versus THE REPUBLIC cooaoaoooooooaaooaoaaaooe RESPONDENt' (Original Prosecutor) MAINA, Jo .The two appellants, Juma Issa and c. 5982 Police Constable Hamisi, whom I shall refer to respectively as the first and and second accused,· were · :: · .Li,.-tly convicted of_ s~opbreakirig and st~aling and they 'were each sentenced to th~ee ye_a£s impri'sonment. Briefly, ,. : the prosecution evicH:mce was as follpws. ~ On the .-night of_ 1e· - 19.4.1982 the vill,:1'.Je shop at Nanyumbu village ·'1 "'- . ,; . ·' .. '.. ~ was broken . . - ' into ai~ ~3rious olothes, soap 1 ric~_ and cash shs. 700/ = were. stolen from therein.. 'The t', - ft was "discov~red on: the· . _mo~ning of 19.4.1982. 'Th0r,2 was_ evidence by_ PW~2- Sofia Ahmad that on l~.~.i982 the first accused visited the house ~here Sofia and the second accused live6., They held a ~~ie{_c~~~e~s~tion, and then the first and second accused left together. They returned at 10 p.m.. Th,2 first accused was carrying a sack which contained rice;. It was c1:;.out three-quarters . full. " : . '• Then the first accused left and on the following day, Sofia's neighbour .' PW.3 Hadija found a sack containing rice in ~he kitchen outside the hou_se in which Sofia ancl the second accused liTed;. That r ,kitchen, formed part of the s2conc1 accused's r~-~idE?:nce. The matter was later that clay reported to Police after it was known that the village sho;:) wa.s tJroken into and rice was among the properties stolen from therein. The appellants did not wish to say anything in defence and they clid not calt any witnesses. The evide,nce against the appellants was wholly circumstanti<:\l. They were found in possession of the stolen properties the same night _when these properties v:en: stolen from the village shop. ~. 0 ..... /2 They now claim i'rf the memoranda of. appeal of, appeal that the _evidence sh,oulct not· have bec_,n accepted by the :t,rial court and that it was all.· lies., But no reasons were sugg.ested dur incj' the·: . tria1:. why the\ evidence of Pv?.2 Sofia who was in fact the fi~it .•...r. accused_' s fiancee should be disbelieyed~ T),_at ,evidence was . . .. etticii;il. ,for the prosecution~ .$econd t -accused Th.e first ar;id ,:., chose., as they were 'entitled i;.o, not to say i3,nything in def~ri1ce. The l'eai~ed trial magistrate ~ . , believe¢ PW.2 Sofia.and there . is no reason why he should have disbelieved the witness.· The credibility of the witness was not shake11. Her evidence was ''. ·' support~d--by PW. 3 Hadija who found the .bag of rice in the second :.., .· ~ r ' - t ~ .•·· -- __ • • ~ 1._., .:·, t:~ ! accused's kitchedn. That sack was identiiie? a,s one of the items stolen from the village shop.,. The·. appellant's ·were found in- possepS~-(\lc·o:f the stolen p~~;,~;fLes only a few ...;ours after the the,!t/.~ri_d,_ in _the absence - ti· i.. • • • . of any explanation.from them they we,re ·propefly. ctii,v~!=teq o{ . . · .. -!' . . · . shopbreaking •·- . and stealin9 the shop go9ds .anst the cash. o_'. The sentence is the minimum,.. The appeaJ:s are dismissed •. MTWARA 27.10~°!984