19870616 TZHC Mwanza

IN THE HIGH CCU-RT OF Th.IJZAEIA AT MUSOMA ECONOMIC Ci1.IMES JURISDICTION (Mwanza Registry) ECONOMIC caIMES CASE NO. 28 OF 1986 THE REPUBLIC versus WILLIAM Mh.X MAKABWA CHARGE: CATTLE TH~~"'T c/ss 56 and 59 of Act No.lJ of 1984 read together with para 12(1) ~f the 1st Schedule to the Economic and Organised Crime Control Act No. 13 of 1984. RULING K.ATITI 1 J,: The accused has been facing an economic offence charge, of cattle theft c/s 56(1), 59· bf the Economic and Organised Crimes Act and para 12 of the first Schedule thereto, With a plea of not guilty, the prosecution to·ok upon its elf its legal duty of proving its case against the accused, and E has no,:,, closed its case, On the generality of evidence, it cannot be denied, that the complainant had his six heads of cattle stolen, on the night of 7th day of Hay 1985. On the 17/8/1985, the accused had three cattle including a 11 koo 11 1 exchanged for two Haksais, in addition to payment of shs. 1000/=, that he paid t9 ODIRO Dh.UDI,; And on 6/9/1985, the 11 11 complainant purportedly identified the same - ~ as his property, and one of the cows that were stolen from him on the 7/5/1985, Although, the accused has not gone to the extent of defending himself, it is clear in our view, that he has suffic~ently demonstrated in cross - examination, that the same cow was and is,his property. The question, whose answer resolves th~ problem, is whose property was the cow. This quGstion cannot be divorced from identificatioti of the cow by, eithor party. The complainant told the ·court, that the cow in question had a khaki colour, with ears cut at the top, with the skin in the left ear scooped out in the 11 C11 2 fashion. But, the s&we coillplainant conceeded that, any cattle owner could concieve and apply the sawe said marks, , . on 1.J.1S cattle. We cannot see why, this is impossible in re3?Gct of the accused. The above a?art, we are baffled; as to how we should rate the complainants· credibility who at one stage, upon cross - examination, vo1unteeTed to say, that, on tha 1/1/1987, his cows including the cow in question were stoient only to turn arround, and say, 11 sasa nasema na u.lcv,eli 1 ng'ombe huyu yuk.a kwa kaka 11 • We think this witness's credibility, has been diluted by himself. And to crown it all, ODIRO s/o DAU.DI, comes with a story that the cow in question, had its both ears cut, at the lower part of the ears and not on top, and that, apart fro~ a swelling between the shoulder and th0 neck, t.he said aow had no other marks• It seems to us, that the co::.1plainant and OilIRI DJ.. UDI are talking of' dif':ferent cows, and it is questionable Mh0th0r, with the complainats credibility devalued, the said complainant acurately knew the marks of his stolen cattle. In our view, we are satisfied that the Republic has failed to establish a prirna faci0 case, that, the accus0d had stolen the caw in question. vie therefore dismiss the charge and acquit the accused person. He has to be released forthwith unless he is otherwise legally held. Dalivered this 16th day of June, 1987. 7 I"f✓ TAHZA ·, ~~~: E.W. KATITI 16/6/1987 JUDGE .\. Lay Members: ; ' '··(.J;) ~. t, ,, (sgd}; Mbayo s. Nyembo ....... ~.~-__........ ~ (2) (Sgd). Chief Francis Hchimani •.