19881010 TZHC Dar es Salaam

. THE l:JNITED ~REPUBLIC OF TANZANIA IN THE HIGH COURT. OF 'IT:ANZANIA AT DAR ES SALAAM .APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEi1.L NOo52 OF 1988 C;)RlGINAL CRIMifJAL ·cI-.SE NOo 663 OF 1987 OF THE DISTRICT COURT 0F ILALA DISTRICT AT KIVUKONI Before: F• y. sameja, Esq., Resjdent Magistrate CHi,RLES Jo MI.YUNG/\ & OTHERS 0 0 0 o o o APP ELL ANTS (orjginal accused) versus THE REPUBLIC • RESPONDENT. (Original pr0secutor) J U D G E M E N T~ ;.. ~~~ These appeals are crnsclidatedo The four appellants, RaP!lael saidi, Ramadhani Mc,hamed, Charles Jrhn Mayunga and zuberi Hussein, whrm I shall refer tr a~ the first, sec~nct, fourth and fifth adfcrused, respectively, were c.·nvjcted by the Ilala ,· oistrict c0urt rf stealing.by agent. The first accused was sentenced t0 ten years imprj sr•nment. The rthers were each sentenced t0 seven years j mprj sr-nment.. They are n0w appealing against the c~niictj~ns and sentences. All the appellants were· watchmen assigned duties tr-- guard the Chama cha Mapinduzj (CCM) prem•is-es' at Ilala _area in Dar es so.la,am·. rt seems that perple used t~ take the}r vehicles tr the premises fnr safety and the appellants were assigned duties tr guard thnse vehicles cwernight. Wh--ever ·sent a vehjcle t,.._ the premises had t,:-, p~y shs.30/= as parking charges. on 30 /\pril 1987 pw.1 oavid Kasembe drove a Try0ta Hillux pjck - up regj_straU,-n · number ... TZ 79741 to the· CCM premises f-r safekeeping. He frund all the appellants l'.'n dtityo The witness said that he went back t,-- his hnusc and, ~n the fr-llr-wing day, when he went t~ crllect the v,ehicle, he did ni"t find ito. He was.: r-nly given 2. receipt fr,r the mAney, shs.30/= which he had paid the previ~us day, being -the parking charges. The fjrst accused gave him the receipt that ·m,~rning ~f 105.1987. When navid asked f.~.r the vehjcle, he was tnld that hi~ father had drjven it away • ... n 2 - when PvH1 David , Kasembe rep·rted tr- h.is futher, PWo2 Emanuel Kasembe, thB latter _denjed tr- ha:ve ddven the vehicle fr,-,m where PWo1 uavid had parked jto There js nr- evjdence as tr- when and by wh0m the matter was rep~rted tr p-,lice. It js als,-. n---t kn,...wn hr-w . ' I ~r when the appeilahts were arres,tedb --rhey -appeared jn Ci-urt fr-r the first time r-h 1 ~jy; 1?87. · All the appellants have deriled the che.rge, and they siill deny the theft-in th~ir mem,-.randa ~f appeal~ The f1rst accused sai~ that DuVidts father had taken the vehj-cle at 6 aomo whHe nnvid went tn claim the ve~icle at 8 a.m~ He aileged that he and the ~ther appellants handed ·,-.ver the vehkle -t~ PW~ 2 Emanuel Kasembe at 6 aomo ~n 1.501987. The se~r-nd accused den1ed t~ have ~een the vehicle at the parking lr-t. 1:he fr-urth accused sc:d d he did n,t even kn.~w the cr-mplainant. s,- he denied having recejved the vehicleo The fifth accused als~denjed tr- have recejved the cr-mpaljnant•s vehicleo The evjdence -f PW.1 uavid Kasembe and pt,J.2 Emanuel Kase_mb<c: 1 if believed, establjshed-that the vehicle was handed rver tr all the appellants frr safe cust,cty, and rn the f-11,-wing day that vehicle was missing. surely, it was st,len. The appellants were r-n duty gunrding that veh-icle and -ther m,-tr-rveh5cles. fr-r the wh--le night· N"-onG C<"Uld have st-len the vehjcle with--ut thejr k·n,..wledge. Th~re is n,. reasr-n t,- disbeljeve that evidence. The appellants' mere denial cannr-t cast any d-ubt r-n the pr~secutirn evidence. LikG the trial magistrate whc- saw the witnesses and was satisfied they were telling the truth, I dr nr-t have the slightes:;t d---ubt in my <"Wn mind t;.hat the pr"secutir-n pr,...."!ted its case bey..-nd reasr-nable d,--ubto The appellants j.--intly and tr-gether s,tr-le the m,-.t,....r vehicle which they we.rre supprsed tr- guard. They were prrperly c..-nvicted, and the appeals agaj nst c,-nvictir-n is dj smi s~d. j\s regards sentence, the trial magjstrate gave nr- reas,.,n f;..r imp,-,sing a m,-.re severe sentence t- the fjrst accusedo The . appellants were all first ,-ffenders and they j.--jntly and tr-gether .. c::--mmittcd this r-ffenceo They sh,::uld have received equal treatment in:ientencing. rt 5s alsr necessary tr- prjnt rut that the jurisdictirn ..-f di st-rjct c-~urtss in impr sing sentences is g-verned 0 by sectirn 170 ,-f the criminal prr-cedure· Act, 1g95. The maximum sentGnce -f impri s-nment -wh.ich a sub- rd.i nate cr-urt may i mp~se is five years, except in scheduled ~ffences, under the Minimum sentences Act where the maximum prescdbed is eiight years; imprisr-nment., The sentenceS:' imp-sed by the cUs:trict crurt in this case were illegr:11 as they nre in excess ,-f the jurisdicti-n -f the distrjct c-urt. Th~se sentences are reduced t- fjve years :impris,...nment. - 3 T~ sum up, the appehls against crnvicti-n are 1ismissed~ The ·scmtences are reduced_ tr five years jmprjs-nment in respect ~f .each appellanto Di,rt ES SALl,i,M Wo Jo MAINA 10 OCTOBER 1988 JUDGE Appellants Raphael safr'.i, Ramacthani M·-~harned and Charles Mayunga presento- k~meye, state Att-rney, frr the Republic. I crertify that i.t is a true and crrrect crpy ,...f the ,...riginal.,