19861014 TZHC Tabora

~--,,..,-- -.J · - '_., l -.-..-...--;,- ,.J\.,,/L·,.,. .. .l. -- ...., _ AT TALORA .APPELL.ATE "JURIS :JI CT ION HIGH COURT CRilITN.AL APPK4L NO. 24 'OF 1986 ORIGIN.AL CRIMINAL CASE NO. 107 OF 1985 · OF THE DISTRICT COURT OF KIBOI.'1:00 DISTRICT .AT KIBONOO Before: RWEJDNA •• Esq. SENIOR. DISTRICT MAGISTRJTE THE DIRECTOR OF PUBLIC PROSEGUTIONS ••••••••• ..APPELLANT (Original Prosecuto1 · versus 1. JOHN SUNZU ••••••••••••• ; • • • • • • • • • .. • • • • • • RESPONDENTS (Original Accused) 2 ~ PETRO BERN.AID CHARGE: Robbery with Violence c/s 285 and 286 of the Penal Code Cap. 16 of the Laws. J.U DG.E~JENT 14/10/86 HCHOUS, PRM. (Extended. Juris diction) This;is an appeal by the Director of Public prosecution against the ruling of the Senior District Magistrate KibQndo who had acquitted the Respondent of the charge of Robbery with Violence contrary to sections 285 and 286 of t·he Penal Code under section 230 of the Criminal Procedure Act 1985. The ·Senior District- Magistrate found that a prima facie case had- not been mad:e up against the Respondents and dismissed the charge-. The learned State nttorney for the Republic submitted that in deciding whether accused has a·case to answer or not the trial magistrate does not have to weigh'the evidence to the extent of deciding whether the witnesses are trustworthy· or not. The trial magistrate decided that the amounts of money the Respondents were found in possession of are too small to be suspected of being stolen, and that the Respondent look capable of owning such sums legally. But from the evidence besides the shs. 800/= .found in 1st Respondent's house when he was fi;rst searched a day or two later the 1st Respondent was found going to change shs. 3,200/= and the second Respondent shs. -4,700/=• Their explanations as to how they possessed th~se second sums to those whosor~ched them are/not satisfactory. They owe the court an explanation at least.on this point. 1st Respondent was ·found in possession of some of the stolen property to wit a torch ,.., c:. and ·pillow cases in a valley at night. The Respondents ought to explain their possession of these goods or at least deny the possession a.s they were trying to do whiie' arguing this appeal. Without any explanation from the respo{ldents as to ' ' how they came by suspected money and stolen goods the trial - ma.gistrate had a queer 'Nay of deci d-ing things. He just looked at their faces :;.:1.d ruled thR.t the respondents are capable of owi-.i.ing such prciperty legally. He.erred. He ought to have called upon the respondents to at least explain how the_ y came by_ the goods and over 7 ~000/= cash. ~.,,-- ~- The decision of Georges 9 C.J. in_R. 'f/. 'Makuzi Zai~/fud h~,? another 1~69 BC~ n. 249 inter ~lia~•is good aut~-ity.for the gu1· dance o f th ~ e .,1.,ria . t ra :.,e anv.:i _ . J_ mae,1s J. th ~~h /t:d · s h oes. His in 1s ·· Lf957L EA 332, ..- - Lordship there~ citing "Ramanlal Tr:!J,-1t:>alrnli Fhatt v. R. w •• ''The case to be. cal~ primer facie must be such that a reasonab1:➔ tribU118l properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence. It would appear in this matter that the T)istrj_ct T-ragistrate could not have evalllG.ted the evidence correctly if he reached the conclusion that a prima facie case had not been made out. There ·.:vere chscrepancies in the evidence for the prosecution but they are not such as to.make the evidence totally unworthy of belief. Whenever Vii tnesses testify about quickly moving events there are likely to be discrepancies. 0n the facts of this case accusea could have been convicted if they had decided to remain quiet, though they need-not necessarily have been. Of course had they given evidence, then with both , stories before him the l~agistrate would have been in a position to decide finally on credibility and conclude whether or not be felt sure and certain of the guilty of the accusedN. I therefore allow this appeal and quash the trial rfagistrates ruling and orders consequent thereto. The · case .. is remitted hereby to the trial court with instruction·to call upon the defence. 3 Order: Accused to be in R/C till they are handed over to the D.N. Kib6ndo:-who will decidf: . : on bail • .. ,