20120912 TZHC Dar es Salaam

1 IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CRIMINAL APPEAL NO. 133 OF 2009 (Original from RMs Court of Kisutu at Kisutu in Criminal Case No. 1739 of 2007) 1. BEATRICE KWAYU 2. LIDYA MICHAEL_•---• . . . . . . . . . . . . . . . APPELLANTS VERSUS THE REPUBLIC . . . . . . . . . . . . . . . . . RESPONDENT Date of last order- 5/7/2012 Date of Judgment- 12/9/2012 JUDGMENT \ 'Shangwa, J. " \The Appellant Beatrice Kwayu was convicted and -~ sentenced by the Court of the Resident Magistrate at Kisu tu oil \ two counts. on the first count, she was convicted of Conspiracy to commit an offence c/s 384 of the Penal Code. She was sentenced to 5 years term of imprisonment thereof. On the second count, she was 2 convicted of theft c/s 265 of the Penal code. She was also sentenced to 5 years term of imprisonment thereof. The court ordered that the sentences should run concurrently. The charge against her was a joint charge which involved one Rose Chami, herself, Lidya Michael, Alex Venance and Mzungu Dickson who were the 1st , 2 nd , 3rd, 4 th and 5 th accused persons respectively. Alex Venance (4 th accused) and Mzungu Disckson (5 th accused) were acquitted. The rest were convicted and sentenced accordingly. Rose Chami never preferred an appeal. The Appeal was brought by Beatrice Kwayu and Lidya Michael. However, while their appeal was pending in this court, Lidya Michael was released on Presidential Clemency. Beatrice Kwayu applied for bail pending appeal. Her application was granted. As Lidya Michael was released on Presidential Clemency, she never followed up this appeal. .' 3 Beatrice Kwayu did follow up her appeal which is based on four grounds namely:- 1. That the trial Magistrate erred in law and in fact in convicting the Appellants on unsubstantiated offence of conspiracy to commit an offence. 2. That the trial Magistrate grossly erred in law and in fact in holding as it did that the Appellants stole Mtalemwa's property without the same being proved beyond reasonable doubt. 3. That the trial Magistrate erred in law and in fact in holding that the second Appellant was the complainant's cousin and therefore arranged the occurrence of the theft. ,, 4 4. That the trial Magistrate erred in law by accepting Mtalemwa's evidence contrary to the mandatory requirement of section 62 of the Evidence Act. I will start with the fourth ground of appeal. Thereafter, I will continue with the 3 rd , 2 nd and 1st grounds respectively. On the fourth ground of appeal, I do not agree with the Appellant that the trial Magistrate erred in law by accepting the evidence of Mtalemwa and that doing so was contrary to the requirement of S. 62 of the Evidence Act [Cap. 6 R.E. 2002]. In this regard the record of the trial court speaks for itself. From that record it can be seen that Mtalemwa testified as PW. 2. In his testimony, he gave direct oral evidence in which he said that on 18 th October, 2007 at 1.30 p.m., he was in his office and that he received a telephone call from his wife informing him that Rose Chami 5 (1 st accused) who was their house girl had disappeared from home after stealing their properties which included 2 gold chains, 2 digital cameras, three mobile phones, one fridge, one electric cooker and one iron. He said also that after getting that particular information from his wife, he went home and found that Rose Chami was not at home and that various properties such as those mentioned above were missing. In my view, the evidence which was given by Mtalemwa was not hearsay. As such, it did not offend the Provisions of S. 62 of the Evidence Act. On the third ground of appeal, the trial Magistrate is faulted for holding that the 2 nd Appellant · was the complaint's cousin and that therefore she arranged the occurrence of theft. As it can be seen, this ground concerns the 2 nd Appellant who did not follow up her , r 6 appeal after being set at liberty on Presidential Clemency. Therefore, I find that it is of no use to consider it. The second and first grounds of appeal are interrelated so, I will consider them together. On these grounds, the trial Magistrate is faulted for convicting the Appellants of the offence of conspiracy to commit an offence without evidence to prove that they did so and for convicting them of the offences charged· on both counts without proof beyond reasonable doubt that they committed the same. I agree with Beatrice Kwayu (Appellant) that there was no evidence adduced by the prosecution to prove beyond reasonable doubt that she conspired with Rose Chami (Complainant's House girl) and Lidya Michael (Complainant's close relative) to steal Charles Mtalemwa's properties from his Government House No. 979 at Mikocheni area Dar es Salaam or to prove that she '' 7 participated in stealing the same. In my opinion, the fact that a gold chain and a contract of sale of Samsung Camera which belonged to the complainant were found by the police 1n the house in which she used to rent at Mikocheni 'A' area, Dar es Salaam and the fact that an electric iron which belonged to the complainant was found by the police in her shop located at Mwenge area Dar es Salaam is not evidence that she conspired with others to steal the same or that she participated in stealing the same or that she knew that those properties were stolen properties. In her defence, the Appellant told the trial court that Rose Chami (Complainant's) house girl who was the 1 st accused was her shop customer and that on 18 th October, 2007 at around 11.00 a.m., Rose Chami went to her shop at Mwenge with a pick up loaded with a fridge together with If '' 8 an electric cooker and other things and asked her to store them for her. At the same time, she said, Rose Chami asked her to look for a customer to buy a Camera which she removed from the box and showed it to her and that she agreed to do so. For me, I think that the Appellant did not know or have any reason to suspect that the properties which she was entrusted by Rose Chami were -stolen properties. I therefore agree with learned counsel for the Appellant Mr. Mluge that the Appellant had no mens rea or animus furandi of theft. The learned State Attorney Miss Mariam Haji for the Respondent did not support the Appellant's conviction of the offences charged against her on both counts. In her written submissions, she fully agreed with the Appellant that the offences with which she was charged on both counts were not proved beyond reasonable doubt. 9 For these reasons, I allow her appeal in its entirety, quash her conviction on both counts, set aside her sentences on both counts together with the order requiring her to compensate the complainant Tshs.5,000,000/=. As she was granted bail pending appeal, I order that she should continue to be at liberty and enjoy herself. A.Shangwa JUDGE 12/9/2012 •' 10 Delivered in open court this 12 th day of September, 2012 in the presence of Beatrice Kwayu (Appellant) and Miss Doroth Massawe, State Attorney for Respondent. ~ A.Shangwa -·----..._ JUDGE 12/9/2012