19930818 TZHC Dar es Salaam

r,:r., .·- , r·· t IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM APPELLATE JURISDICTION CRIMINAL APPEAL NO. 156 OF 1992 ORIGINAL CRIMINAL CASE NO. 254 OF\,1990 . OF THE DISTRICT COURT OF BAGAMOYO DISTRIDTAT AT BAGAMOYO ·,• Before P. Nnally, Esq., District Magistrate KETIPETI MSERO ~••••••••••••••••• APPELLANT versus REPUBLIC e O O ~ 0 0 0 0 0 0 0 0 e e Q G • 0 Q O O O • • RESPONDENT JUDGMENT 13AHATI. J. This is an appeal by Ketipeti Msero who was c,nvicted ~f the offence of cattle theft and sentenced to 15 years imprisonment. He is appealing against conviction and sentence. The facts are that the appellant was seen by Ally Hussein P.W.3 with a bull which the appellant said was 1 :Jf his elder brother .• The appellant left the bul at the house of P.• w.2. Later ;en PoW.3 saw the appellant's brother and he informed him that he was having his bull which the appellant had brought there for sale. The appellant's brother was suspici•us because he had not given the f appellant any cattle. When the appellant's brother saw the bull he could not recr\gnize it and theref•re the matter was i~ported to the Police and the ~ccused was 1Aought for and arrested~ P.W41 Paulo Boyi was missing his bull and r ,, ·r• ,'·' when he went to the home of P.W,3 he saw the bull which had been brought there by the appel'lant and he identified it as .'!. his. When the appellant took the bull 1t! P,. W! 3 ! s home P. W. 4 Mathias Kavisha, a butchery owner was als~ there. The appellant 1 s brother gave evidence as PeW_e2. The appellant was arrested and charged accerdingly. , In his defence the appellant denied any connection with the ,. bull of P.W.l. He put up an alibi of having been at Dar es Salaam during the ':material time. The appellant had no ·~ · witness in this case because when he was released on bail in order to enable him to get his witness, he jumped bail. He was only arrested after the case has been completed. The mem•randum.._.f appeal conists of chalieng:i,ng of the evidence for'' t:he pres.ec·ution. The District Court convicted the appellant and sentenced him to 15 years imprisonment. I see no merit in the appeal against conviction because the evidence given is loud and clear and to the effect ~hat ;.-'. the appellant took the bull which he had stolen 'from the :: house of P.W.l to Chalinze at the homi •f P.W.3·nexi te •- the butchery. There is no reason for doubting the evidence of P.W.l, P.W.2 and P.W.3 and even·P.W.4 which·i~ ceroborative. P,W.3 and .P.W.4 saw the appellant take the bull to Jhe home » •f P.W.3. The appellant disappeared from his elder br~ther!s home where he used to stay during the periJd of the discovery of the bull by P.W.2 and P.w~1~ I have no reason to fault the conclusion reached by the trial Magistrate. Appeal against convictitn is dismissed. :,,:.. With r~gard to ~entence, the learned State Attorney wh• appeared in this appeal submitted that 15 years impris-•nment ••.... I 3 3 sentence was illegal because 1.the court 1had only pew~r to pass up to 8 years imprisonmente He said that since the offence was a scheduled offence under the Minimum Se~tences Act and in view of the provisions of Act No •. 12 of 1987 and ~ section 170 of the Criminal Procedure Act a sentence less than 15 years should be imposed. I agree and wish t• note that the age of the appellant is said to be 16 years. Since there was no medical examina- tion carried out on the accused, this court should give the appe_llant the benefit of doubt that he was not 18 years of age ◄ The Minimum Sentences Act applies only to persons aged 18 years and above. Therefore in this _case the Act do does not apply, The sentence of 15 years imprisonment clearly does not apply since cattle theft is no longer an economic uffence and in any case the appellant was not charged with an econo~ic offence. ·I will therefore set aside the sentence of 15 years' imprisonment and substitute it with one of three years' imprisonment. A.• :SAHATI JUDGE 18/8/93 Delivered t~ the appellanto Miss Juma for -the Republic. A,~ :SAHATI JUDGE I. 18/8/93 I CERTIFY THAT THIS IS A TRUE COPY OF THE ORIGINAL. -4\~{-----+-::--- SENIOR DB~\iTY .REG'{~TRAR