joseph mazengo others vs republic 2008 tzhc 203 22 august 2008

IN THE HIGH COURT OF TANZANIA AT TANGA CRIMINAL APPEAL NO. 28 OF 2004 C/F 29 (Originating from PanganiDistrict Court Cr.C.No.93/03) JOSEPH MAZENGO & ANOTHER KALOLO NYAMBUYA.................................... .......APPELLANTS VERSUS THE REPUBLIC.........................................................RESPONDENT 16/6/08 & 22/8/08 JUDGEMENT Shayo, J. In the District Court of Pangani, the first appellant, one, Joseph Mazengo, and the second appellant, namely, Kalolo Nyambuya, were jointly charged and convicted in the 1st count of cattle theft c/s 268 of the Penal Code, while in the 2nd count the first appellant was charged alone and convicted of cattle theft c/s 268 of the Penal Code. They were sentenced to 15 years imprisonment each. Dissatisfied, the first appellant has appealed against both his conviction and sentence, while the second appellant has appealed against the sentence. Their appeals No.28/2004 and 29/2004 are consolidated. In a nutshell the prosecution case can be explained as follows. On 12/10/2003 PW.2 Juma Bakari and PW.3 Issa Sufiani while on their way to the beach area at around 8.30pm., intercepted two people carrying a luggage in a crate on a bicycle. They put them under arrest but one of them ran away. They remained with the other person who was the second appellant. Upon checking the luggage they saw a he sheep. The second appellant claimed to have stolen the sheep from the farm of PW .l Nassoro Fehedi at Choba village. They detained the second appellant and took him to the YMCA Hostel Manager who telephoned Pangani Police Station. At around 10.00pm. PW.5 D/C Nuru received the call from YMCA Hostel. Tie was informed of the incident so he went to the area and found the second appellant under arrest with the stolen sheep. The suspect was taken to Pangani Police Station and later PW .l Nassoro Fehedi was called to identify his stolen he - sheep. PW .l went to police station and identified his sheep by colour and special cut marks on the left ear at the top and right ear centrally cut into two branches. On 13/10/2003 PW.5 interrogated the second appellant who admitted to have stolen the sheep with his colleague one Waziri Makala who had ran away, and he also mentioned the first appellant whom he said had given them the sheep for sell. PW.5 then went to PW.l's farm at Choba village where the first appellant was questioned about the sheep in the- presence of PW.l. The first appellant claimed that the sheep had got lost. PW.5 thus arrested him and took him to police station where he recorded his statement. Meanwhile, PW.4 W.P. D/Sgt. Tumwagile recorded cautioned statement of the second appellant in which he admitted to hav6 gone to Choba village with his colleague one Waziri Makala at PW.l's farm where the first appellant who was the herdsman of PW .l gave them the sheep for them to sell and decide the parades among them. The two appellants were finally charged with the preferred offences. In their defence, the first appellant claimed that the sheep had been stolen from his working place unaware. Upon checking he found the door of the case upon and as he was about to report the incident to PW .l he was informed by his son that one person had been arrested with the stolen sheep. He was however arrested and taken to police, station where he met the second appellant. The second appellant opted to remain silent and he had no witness to call. In his petition of appeal the first appellant's main complaint against the decision of the trial court is that he was convicted solely on the evidence of his co-accused the second appellant which lacked corroboration from independent witness. As for the second appellant, his gravamen of complaint is that the sentence imposed by the trial court was manifestly excessive. Mr. Samwel, learned Satate Attorney did not wish to support the conviction and sentence against the two appellants. Arguing in support of the 1st appellant's grounds of appeal, he submitted that the evidence that was the basis of the first appellant's conviction was that of the co-accused the second appellant. That the second appellant had confessed to PW.4 that he was given the sheep by the 1st appellant for sell. He cited the case of Ezra Kwabanamaizi V.Rep. (1962) E.A. 309 for the proposition that conviction should not solely be based on confession by co-accused. The learned State Attorney further argued that the trial court misdirected itself on such kind of evidence of a co-accused who was also an accomplice witness as it was not safe to base a conviction especially when it comes to an innocent person. To fortify his argument, he referred us to another case of Selemani Rashidi & others V. Rep. (1981) T.LR. 252. As for the second appellant whose appeal is against sentence, Mr. Samwel submitted the complaint by the second appellant is justified. He posed that the sentence imposed by the trial court was not only manifestly excessive but it was illegal. He argued that the statutory sentence for cattle theft is 5 years as provided by section 5(u) of the Minimum Sentences Act, Cap.90 R.E. 2002. The learned State Attorney thus urged this court to reduce the sentence accordingly. I have carefully and dutifully considered the evidence on record, the appellants memos of appeal and the arguments advanced by the learned State Attorney in support of his respective stance. There is no doubt that the issues for determination are two fold, that-is, whether the evidence against the first appellant was cogent and sufficient to warrant his conviction, anci whether the sentence in respect of the second appellant was manifestly excessive. It is a trite principle of law that as a matter of practice accomplice evidence requires corroboration to support a conviction and further that a conviction should not be based solely on the confession of a co-accused. (See Selemani Rashid's case supra). In our present case, the first appellant was mentioned by his co-accused • the second appellant, who told PW.2 and PW.3 that he was given the he-sheep by the first appellant who was the herdsman cum watchman of PW.l's farm at Choba village for sell so that they divide the proceeds. The second appellant further confessed in his cautioned statement (Exh.P.3) which was recorded by PW.5 to the same effect. There was no independent evidence to corroborate the second appellant's lone evidence. It would appear the trial magistrate believed PW.l's mere assertion that the first appellant failed to explain the whereabouts of 31 herds of sheep out of 58 when he was asked to count the sheep under his custody. With respect, that claim by PW .l was not supported or corroborated by PW.4 nor PW.5 who had gone to his shamba and interrogated the first appellant about the stolen he-sheep. In fact, PW.l was never heard telling the court how many sheep he had in his cage or kraal. The evidence in support of the second count against the first ^appellant was too scanty to be true. It was rather a figment of a story by PW .l that could hardly be relied upon by any competent tribunal. The first appellants conviction was therefore faulty and thus cannot be left to stand. Reverting to the second appellant, I fully agree with the learned State Attorney that the sentence of 15 years imposed for cattle theft was not only manifestly excessive but it was illegal. Under section 5(b) of the Minimum Sentences Act, Cap.90 R.E. 2002, the offence of cattle theft carries a Minimum penalty of 5 years jail. The second appellant was thus supposed to have been given 5 years prison term and not the illegal 15 years imprisonment. In the upshot, and for the foregoing reasons, I allow the appeal against the 1st appellant, quash his conviction and set aside the sentence. It is ordered that he be released from custody forthwith unless otherwise lawfully held. Equally, the appeal against sentence by the second appellant is allowed. The illegal sentence of 15 years imprisonment is set aside. In the alternative it is substituted a sentence of 5 years jail. It is so ordered. A.A.M.&tfAYO, J. 31/^/2008 22/8/2008 CORAM-W.E. LEM A-D R. APPELLANTS - Present RESPODENT - Oswald Tibabyekomya C/C c ^JOd§emgN^ delivered this 22nd day of August, 2008 in the presence of ? M I further explained. \ / * h; W.E. LEM A-DR. 22/8/2008.