19980323 TZHC Dar es Salaam

TN 'T'HF: HTGH C:OlJR'T' OF 'T'ANZANT A _?\T DAR RS SAT.~~-!1 CRTMTNAL APPEAL NO 51 OF ]9Q7 ( Od.gi nati ng from Morogoro Dist. r ict Court Cr i.mi nal Case No. 275 of 1996) FIDRRIS KYOMOKHA ......... . . . . . . . . . . . . APPELLANT VERSUS THE REPUBLIC . . . . . . . . . . . . . . . . . . . . . . . . . . RESPONDENT J U D G R M R N T KAI.~GRYA. --~L._ The Appel.l.ant, Fidel.is Kyomokha, was convi.cted hy Morogoro Res:i.oent Magi st.nit.As' s Court with robbery wi. th violence c\ss 285 and 286 of the Penal Code and sentenced to 15 years j_mprj_sonment, which .verdict. he did not. approve h1=rncA the ;:ippeal to this court. The prosecution had alleged that. .on 6 \ 9\ 96 at. about 5. 00 pm the Appellant. had stolen a goi°q chain· val1~ed at shs. 200, 000/= from Mwanzani d\o Rajabu ( PWl) and that h~ used violence J.n the, process in that. he kicked her w:i.th a fist. In support of his appeal the Appellant argued th;:it. it was not established that the alleged chain existed at aJ.l; that. the prosecution should not have rAl:i.ed on evidence of PW1 and 2, family members as they are sisters; that the prosecution sho11ld have called other pAople aR wj_theRses for the act was allegedly committed in the presence of other people; that the court relied on hearsay evidence of PWl ;rn<l ?. ; t.hat. the t,r i,;:i 1 conrt misdirected itself i.n accepting ;:i PFJ indicating the ;:i]leged injury of PW'.I. wi.thout cal 1 i ng in the nnr.t.nr rinc'J that t.hP. t.ri.;:il court sh.i. f t.ed the burden nf prnnf t.o r1cc11sed ( AppA l l r.1nt.) . Mrs. Chambo, lenrned State Attorney: for the Republic::\ResponnAnt, insisted th~t the offence was fully est.ablishAd hence supported conviction and sentence. 1. Whjle T h;:ivA decidAd tn ;:in;:ilyRA thA AvirlAncA gAnAr;:illy without. hAi.ng houncl hy t.he nvinner t.he AppA11ant has l,rnnchAd h·is attack J should st.Rt.A from t.hA st.r.1rt t.hr1t. a suhst;=rnt.i;:iJ part of his complaints ;:is presented h;:ive no legs on which tn st.and. For example there is no element of he;:irsay in the evidence of PW1 and 2 as I will soon i.ndjcAt.A - i.f ;rnyt.hing hA sho11l<'l h;:ive talked nf credibil.ity may he. Tt is also naive to insist. thAt. once no receipt in respect of ,:1ny art. i.cle i.s pro<iur.ed it. r111toma1-..i r.a 1 ly mer.1ns t.hAt. it nAver exist.Ad. NAither is it r.orrer.t. in law t.n say that evidP.ncf.! of family membP.rs on 1 y cannot support r.onv i. ct. i.nn ( the Jasson Rwebangi r;:1 case - 1 <n 5 f.RT ?.n ci t.ed d:i <i not. dee ide anything close to that proposition). The only evi.dAnce offered by t.hA prosAcution is that of PWl who is said to have been weari.ng the chai.n that was st.ol.en, ;:ind PW2 her sister who was saio tn h;:ivA beAn in hAr cnmpAny. Roth witnesses <ieposed that PW?. WAR escorting her si.st.er., PWl, on physical exercisAs following an oper;:it.ion which had been carried out on her st.om;:ir.h; th;:it nn the w;:iy thAy were cA]]Ad 11pon to st.op by the AppAllant. And ;:rnot.hAr youngrn;:in ;:ihusing them .in the pr.oc:ess, thus, "Si.m;:imeni nyie rna.laya". These wi.tnP.SSf.!S dP.posAd f11rthP.r th;:it the yo11ngman thAn r.un and caught. up with t.hArn. From herP. t.hA vArsions of whnt. h;:ippened slightly djffer. PWl deposed, 'I "The 2nd accused ordered me th;:it 'toa be]en'. My young hr.other (?) run away. 'T'he r.1r.c11sP.d removed my gol (l ch;:iin on the neck. He ran awAy. ThP. peoplP. chasP.<1 him but he wic1s not arr.est.Ad. We visi t.P.c'l thP. housA where wP. thought. that the accused enterP.d hut t.hA accusP.(l was not seen. I report.Ad the inc:idP.nt tn the police stati.on . . . . . . . . . . . . . . . . . T wP.nt to hospital heca1Jse I w;:is feeling the pAins in the stomach. Then the following day T saw the accused at the samA housA". ?. ( ) " t. h A y c Am P. q 11 i r. k l y t. o ll s A n cl s A i d ' J·. o <'HI ·j h P. l P. n i ' . T knAw them by fACA. 'T'he ;:ir.r.11sP.d WAS one of thArn. 'T'hAn t.hA nr.cnsAd hP.lcl rny sistP.r on t.hP. nAck rP.movAd PW1 's ch;:i in. T run ;=iw;:iy ;:ind T mAclP. shouts and pAop lA came to hAlp ns. But the ;:ir.cusP.d wAs powerful and nm nwny. My hrothP.r t.ri AO t.o holcl the accused h11t my hrot.hP.r fAll clown. WA followP.cl t.hP. ric:c:nsP.d t.o thA housP. where we snw the AccusP.d entering. 'l'he peoplP. whom we found in th;:it. house deni.ecl that the ;:iccused ent.en'!rl there. 'T'hP.n WP. n'!porh=id to the po li CA". In defence the ;:ippellant saj_d that. on the mat.Arial day as he was playing drafts with his friend (DW2) ;:i 'l'axi pAssAd hy Ano stopped and st;:irt.ed hooting to ;:it.tract. ;:it.tent.ion of two girls who WAre at. a ai.st.;:incA; thAt. As thA girls SP.Am not hAVA hAArd the hooting he (Appellant) WAnt. to cA 11 th Arn upon wh i r.h t.hP.y i nsu l tecl him.: t. hn t. howP.ver whP.n t.hA pArson clri vi ng thA tAxi r.AmP. nut of the VP.hi r.] P. thP. girls WP.nt to h·im r1f1·P.r which LhAy rill lP.ft. HA WP.nt on t.o sr1y t.hr1t l ;:it.Ar . AS hA w;:is P.scort. i ng ( DW2) _. thAy met. two youngmAn who i nqu i n~cl Ah out t.hP. t.wo girls; t.h;:it when hP. neg;:it i VA ly rAsponclerl t.hey assa11 l tAd h i.m shouting "mw.i z i" llpon which they (AppP-llAnt. ;:incl DW?.) ;:ill t.ook to their hAAls AS 1·hP. pP.oplA rirnunr1 str1rted throwing stonAs on thAm. He had to hi.de himself in a certain hollse. Latar he w~s cAlled to the policA station whP.rR his wife had been taken. He was then charged. HP. ohservAd that the girls framed him up as thP.re is something wrong t.hP.y hArJ committed which they di.dn't. want to hAve it. known to thP.ir family. DW2 supported t.hjs story. It is on this evidAnce that thA trial. r.ourt convicted the Appellant. While it is trite l.Aw that the trial court which has the benefit of seeing ana hAaring the wi.tnAss whilA givi.ng his evidence i.s t.hA onA best plr1cecl to assP.ss his r.rAdibili1-.y_: ;=ind that appP-llAt.R r.ourt.s shoulcl vAry r;:irP.ly int.erfP-re with findings of trial court on assAssmAnt. of r.rP.di.bility of witnAsses [MagigP. and another v R' (1970) H~n 101, Rv Karia Mawji (1949) RA~A 117] it is equally correct. to say th;:it jn r.P.rt.r1in t.ypP.s of ) \ ) evidence the appellate court js in do ni.ffP.rent position from the trial courts' ann more so if the trial court fails to make the necessary analysis or appl.i.es wrong principles in the process. Tn such situation the rippP.llr.1t.e court. wo11lrl he failing in its <l11t.y if it fails so to act. undRr the nisguise of n=ifraini.ng fr·o111 interferinef with assessment of credibility made hy the trial court. [Halima Mohame<'l v R.- (Pr.) r.r. Appeal No. 11 of 1q97_. nsm (HC) RAgistry_. unn~port.en]. Tn the r.;:ise At hnnrl_. with resper.t._. T am convi.nceo t.hr1t. the t.ri;:il. court rli,l not properly assP.ss 1-.he evi.nence let. .::J1oni=i r.redih.il.i.t.y. T shouln go further rin<'l SAY that there are also some misdirections. In ar.r.jving At. the r.onvir.t.ion t.hR t.riril r.ourt. n=il.ie<'l on three aspects. Firstly; it held that PW1 rina ~ were credible because_. among others_. the Appell,rnt. did not. cnl.l. the '1';::ix.i driver as a defence witness. The court ohserved_. "All .in all the r.tccused den i en to know t.hA tax .i. driver also he did not. bring the taxi. dri.ver to support th i.s ;:i 11 Rgat.i ons as p11t hy the ncr.usP.d As his defence''. 'l'his is A misdi.rection. 'l'his is shifting the burden of proof from the prosP.r.ut.ion t.o t.he clefAnCA. Secondly_. the triAl court n~l.ied on a PF~ givAn t.o PWl whRn she report.Ad to the polir.P. to Ast.abl.i.sh that. she was indRAd assau.ltP.d. The court stat.Ad_. "Secondly_. .r':_QJllD ln i n0 n t. as DP.r 'orosP.r.ll tj_Q!I s ev i rlF!nCA A n,l thrl t s hR sust.-':3inA<l painR. Tt. i.s thAt. t.hA noc1-.or Axaminea PW1 ana not.Ad thAt thP. r.ompln i nnnt. r.ompl a.i.nP.cl ;:ihout. t.hP. severA pains on the npP.ratAcl RrP.A of the ah<lnmAn. 'l'his cleArly shows that t.hP. complainnnt. s11st.A.i.ne<l the sRverP. pai.ns on the opP.rat.Acl arP.ri . . . . . . . . . wh_i] A st.ruaa1 j ria to SAVP. herself from ___t.he ;::iccusP.Q__~ (P.mphasi.s rni.nR). Tt is :r.P.ally surprising th;:it. the trial co11rt mi:3<lP. those obsP.rvAti.ons at all .. Neither PW1. and PW2 test.ifie<l on -':3ny k.i.nd of st.r.11ggle bRt.ween PWl 4 \ ). and accusAd. While PW1 (the victim) is complAtely silent on any struggle at. ;:il] (T h;:ive quoted t.hA relevant p;:irt. of hAr Avidfmce above) even PW?, - a] so ( who m;:iy h;:ive exagger;:it.eo the s i t.11r1tj on.- for . we clon' t. expert. her t.o h;:ive P.xper ·i encen the r1r.c11seds' touch more than the victim herself) - simply refers to only the holding of PW1 hy the ner.k. On the evidAnce at hand there 1s no connection whatsover hetween the ;:ihonrninal pr1ins.- if they ever existed, and the alleged incident!. 'l'hirdly, the trial collrt, as was the cAse with grn1mcl one.- cast the burden on accused. Tn the last. hut. one paragrAph of i. ts judgements the t.rir1l co11rt. f11rther direct.eel itsP.lf, "Thirdly,. it is th;:it r1lt.ho11gh the r1ccusfH1 denied to h;:ive committed the offence said nothing on the motive behind to cr1ll the cornpl;:iinant. on behalf of the taxi driver wriom he did not know either. Tt i.s thus the tri;:il court strongly r1greAs with the prosAcut.i.on th;:it the accused And his friend followed the complainant. with int.ent.ion t.n commit. the alleged nffenr.e and that. as per PW1 and PW?. the ar.c11sed stn le t.hR go J d chain v;:ilued at. 200,000_/= and that. irnrnRdiat.ely before such st.RA lino d i_d use A ct.nal__ _v i_o_l en_ce __ to __t.h_P.___ cnmol _Ai nan t ___ bv _ kicki_na her wit.h __ feAst( ! )II (RmphAsis mine). Apart from the misdirRct.i.nn vivid in this, where did t.hR trial court gRt. evidRnce that PW1 wAs evP.r kickRd with ;:i feast (I believe he meant. a 'fist')? It is obvious therefore thAt. the t.rinl cn11rt. mAdR no analysis of the evi.dence, and instead got webbed in misdirections and non-directions. Wjth respect to the l.earned state Attorney this cannot sustain the conviction. Now turning to the only evi.dence prod11cP.d hy the prosecution, that of PW1 and~. T can briefly obsRrve that it. is not free from suspicion. As T have Alr1=>.r1dy ohi=;erved the story of PW2 sJ ight.ly differs from t.hat. of PW1. PW?. deposes AS if t.hfd.r \ ) brother waR just in vicinity, for, shR says that he tried to int.err.ept. ar.r.11se<'I h11t fel 1 rlnwn anrl that- people responcled ;:ind chased accusec'l. PW1 _is silent r1hout th.is alt.hough she a1so rRfers to "brother" hAv.ing run away. Accuse<'! however t.el ls a story where he is confronted by 2 youngnu~n who t.hP.n shout. "thief" instigating people to descend on hjrn wjth stones h11t. he says that this was Jong after they hao comA in touch with the gi_rls and a taxi driver. Both PW1 and 2 are silent about how the accused came to he at the police st.at ion. T am Rurpr·i sed t.hr,1t no at.tempts were made to call the alleged brother and investigator as wit.nessRs. Possibly there would have shed more light on the issue. From all this it. is clear that. the prosecut.inn CARR is r.louded wit·.h c'louhts hence falling short. of hei ng capable of s11st.ai ni ng a convi r.Lion. For the reasons disr.ussed .- the crmvi.ction and ensuing sentence are qnashec'l anc'l set. r1s i c'le. 'T'hA AppR 11 r1nt. t.n he set at liberty unless ot.herwi.se lawful 1 y helrl. (L. R. Kalegeya) ,JUDGF. ,Judgement delivered today the l 5 \ 1 \ 99 :in the presenr.e of Mr. Mdeme, State Attorney. (r. . R. Kr1legeya) .T_tmGR 1 ~\1 \99 J .f-..T DAE T::':" '.:,,~L.'\.1\M ,...,r·--=· =----.-,...,.~-"'~"-',_.._,_ l_\ ('\ i; :,~ '-- \ CRIMINAL APP EAL NO •• 42/l 997 I ABDU SELEiVIANI KISlTlv-\o •• V/S. o THE REPUBLIC JUDGMENT --=- - -· - - - - Abdu Selemani K.isuLa is a residen-c of Kisaki Village Morogoro Distr:'....ct. He 01.·:,1s a gun. He was, a few days leading towards the 14th Mc-1Yi> 1997,i> arrested by the Game Assistant of the Matambwe Game Reserve ·v1hich appears to be close to the village. He was arrested in connection with hunting in a game reserve c/s 23 and 78 of the Wildlife Conservation Act, No._ 12 of 1974 (the Act) and hunting during a closed season c/s 18 of the Act. Instead of preferring charges against the appellant the Director of·the Game Reseve decided to compeund the offences under section 82 of the Act. The records filed by the 2.ppeJ.J.::nt show that he admitted the off enc es. Consequently he We,.:_, :c:entenced to a fine totaling Shs. 70 1 000.00/=. The appellant paid the fines, as it would now appear, under protest. He decided to appeal in terms of section 82 (5) of the Act. App,?als o.f the nature such as this one are governed by the provisions of Part X of the Criminal Procedure Act, 1985, which covers sections 359 to 386. Of particular relevance are sections 359, 360 of and 36lLthe Criminal Procedure. Section 360 (1) provides that no appeal shall be allowed ' in the case of any accused person who has pleaded guilty and has been convicted on such plea by a subordinate court except as to the .extent or legality of the sentence. Since the- appe_llant pleaded guilty he bears the burden of proof to establish on a balance of probability that indeed he was not a free agent ·at the time his plea was taken. He contends that he· was l~ept handcuffed for four days during which he was _made to frog-jump until he gave in and thus pleaded guilty against bis:· will and wish. That may be so, but I see no evidence wh2tever by which the appellant has discharged the onus of proof that is imposed on him. I- am persuaded by Mr. Bajana' s contention that the appellant pleaded to the charges of his own free will. ·) T}Je a-ppE.al ~-s unt·_,:,n2ble on ano:ther _ground ~ · .s-ectJ..on 361 o:f -•:Y.2 Cr::.rri__i_na·l. :-· :.·.>c-: -.-L_ ~ •.? I.ct prov.ides that no appeal from :~:<_ - c=-.._::.;_·y _f:i_nding.s or :·Emtence of a subordinate court shall be entertained unless the_appellant~- 11 (a) shall :·12:.."Je given notice of his intentio·n to appeal within ten days from the date 0£ t}1e finding, sentence .ii.. The appellant did not <ogive notice of his intention to appeal; instead be lodged his appeal on 6th June, 1997. Of course he was in time for the appeal if he had lodged the notice of his intention first. The failure to do so has rendered the appeal incompetent. It ir-=; in those circumstances that I uphold Mr. Bajana' ·s prayer that the appeal be dismissed. The appeal is'dismissed for the reasons given herein. Delivered. J.M. MACKANJA JUDGE Appearances:~ 23/3/98. For Appellant .. . For D.P .P • Date 23/Ul998~ 'Coram .• F.S. Msri.ote, DR • For Appellant -- in person, For ; Respondent- Miss~ Kadela - S/A. c.c. Aza. Court:- Judgement delivered. >/'~;;:;:-' i\1 ( ' ' -/p\ S • MSH~~E 'D:ISTBI._CT REGI: