erasto kayombo vs republic 2009 tzhc 273 16 march 2009

IN THE HIGH COURT OF TANZANIA AT SONGEA CRIMINAL APPEAL NO. 5 OF 2006 SONGEA DISTRICT COURT CRIMINAL CASE NO. 89 OF 2003 (ORIGINAL MAPOSENI PRIMARY COURT CRIMINAL CASE NO. 369 OF 2003) ERASTO KAYOMBO...............................APPELLANT VERSUS: THE REPUBLIC................................. RESPONDENT 1/9/2008 HEARING CONCLUDED 16/3/2009 JUDGMENT DELIVERED / JUDGMENT: UZIA, J. This is a second appeal, the appellant Erasto Kayombo was convicted of the offence of cattle theft at Maposeni Primary Court and was sentenced to 15 years imprisonment. He preffered an appeal to District Court at tVi Songea on 29 /3/2004, Fussi District Magistrate dismissed the appeal. Dissatisfied he has appealed to this Court. The facts of the case which were accepted by the trial Court were as follows; On 16,h/9/2003 at around 01.00 in the night, the complainant was waken up by his son in that fateful night to witness the appellant who was arrested while stealing the goat from his kraal. Halifa Yasini (PW2) was on duty watching the grinding machine near PW l’s house, he heard a noise of the goat. He went to see what was happening, suddenly he saw a person driving a goat in the bush, he raised an alarm, two people responded, they chased the alleged thief and arrested him. It was revealed that the accused person broke into the kraal and took the goat. John Lupindu (PW3) arrested PW1 in arresting the appellant who stole the goat. The appellant denied to have stolen the goat, he went to the house of the complainant to see Josepha Moyo who happened to be his lover and had his child. Suddenly he saw a person confronting him asked him to introduce himself, when he mentioned his name, PW2 cut him with a panga on his head, raised an alarm, a number of people came and arrested him then brought a goat nearby forced him to admit that he stole the goat from P W l’s goat’s kraal. The Primary Court Magistrate assisted by assessors were of the view that the appellant committed the offence therefore found guilty and was sentenced 10 15 years imprisonment. When he appealed to the District Court, hta appeal was dismissed. In his memorandum of appeal the appellant attacked the decision of the trial Court he erred in law in accepting and rely on the evidence of PW1, PW2, PW3 which was a cooked stories. Secondly, the appellant was not arrested with a stolen goat at the scene of the crime. Lastly, the trial Magistrate did not consider the defence of the appellant. Mr. Christian, learned State Attorney who appeared for Republic responded declined to support his appeal. He submitted that, the appellant was arrested red-handed with the stolen goat, there was no any cooked story alleged by the appellant. Having considered and evaluated the evidence on record and the grounds of appeal, I find the appellants appeal without merit. He was arrested red-handed in the night stealing the goat. He was present at the complainants house in that night and when arrested he did not give good reasons for being there. DW2 one Josepha Moyo did not tell the Court # anything substantial, when she was re-examined by the appellant DW2 replied that was asleep in that fateful night. For the stated reasons, I hereby dismiss the appeal in its entirety. L.^IC.jjZIA^ JUDGE 16/3/2009 LMKU/PJL.