19870915 TZHC Tabora

IN THE HIGH COURT OF TAN ZANI.A AT TA:OORA APPELLATE JUJilSDICTION HIGH OOURT CRIMINAL APPEAL NO. 76 OF 1986 ORI GIN.AL CRI!Y'l!N.AL CASE NO 21 OF 198 6 c OF THE DISTRICT COURT OF NZEG.A DISTRICT AT NZ.EGA Baf-0re A.A .rfl. SH.AYO Esa, Resident Magistrate Cl,AVERY MZRLELA ••••••••••• * •••••• , ••• .',Appellant. · (Original Accused) Versus THE UNITED REPUBLIC.• ••••••••••••••• , •• Respondent (Orj_ginal Prosecutor) OH.ARGE: Obtaning money by false prstences c/s. 302. ... - JU:OG:&MENT This appeal shoU.ld have been sutnma~iy :reJ~cted, rt was adm:i. tted •to hear learned counsel 1 111 but after going through the whole reoo»a. of the lower court, the memorandum of a,ppeal 1 and sl1bmissions by both the appellant• s counsel and the coune1el for, the Repu.blic I find the appeal to be devoid of any merit• The appellant, one OJ.a.very Mzelela a co.u.;rt clerk based ,, in Nzega Distnot (Jo_.rt, tbtained cash shilli~s 26,000/= from one Shi ja MasanJa on tt,.e,lt35, That Shi Ja Masan ja had his son Kayog~a Shija ar?'eeted and charged With Corrupt Transaction. '?he appellant helped the compla.1,nant to process· the application forms for bail· for his son. ,After completion of the filing of the bail application the appellant went to the comp~tJ" }i.11.age and d.em:.::.10.Gd Slls. 26 ,000/= from the complainant as a 'on.be for the judge who would hear .... /2 •, ... I - 2 - the bail application •. The eomplainant gave the appellant the money before the complainant's son Masanja Shija, (PWl) the complainant's wife and a rieighbo11r, one San.du Kadelena (PWlll). A four days later. the complainant asked one Leonsia Kaboya (PW.lV) a Registry Assistant at the High Court in Tabora whether she had received her share of the <Mparcel'~ appeilant had been given to send to the judge. Kaboya told the complainant he had been swindled. She i'11rther gave the compiainarit a letter to send to the appellant requesting the latter to return the complainants their money. on the appellant' refusal the complainant·went to complain to the senior District Yagistrate at Nzega, one Adam l~ohamed (PW. V). The_ latter called the appellant and the complainant, the complaina,ntrs son, together with two tell.ow District Magistrate and asked the appellant whether he had obtained the complainantis money by falsely pretending to have been sent by a judge as a bribe for bailing out the complainant's son. The appellant not only.denied the ac~sation 9 but slapped the oomplainant•s son in anger. PW .1 called the police to arrest the appellant and charged him both with the Assault and the obtaining of the complainant's money by false pretenoes, The appellant pleaded guilty to the assalAJ..t charge. As for the offence of obtaining by]lllse pretences he pleaded not guilty and put up a defence of alibi. He denied to have not even seen the complainant and his son before the meeting in PW.v•s office, The learned trial ~i•r Resident Magistrate rejected the appellant's defence o:f an alibi and rightly so too. He found the obtainin{l Qf -the money to be by false pretences, also correctly. \ ,~, ·- ' /~ • 3 - The _learned co.unsel for the appellant submitted that the appellant was convicted on the weakness of the defence and not on the stren.f6 t:i ot the prosecution._. I do not agree with him. There was overwhelming evidence by the prosecution against the accused's defence to justify the conviction. Nor does the appellant•s counsel's argument that_the alleged judge was not called hold a:JlY water. First the appella:Jlt did not mention the name of the judge who sent him to CQllect bribe for him. Also the appellant did not put up a defence that he was in fact sent by a judge<> This would have necessitated the calling up of the judge concerned to deny or admit the appellant's al.legations. The sentence has been argued to be excessive. The maximum sentence for such a11 offence is seven yearl·s jail but the appellant was awarded with fiver. This is a harsh but not excessive sentence. The trial magistrate had the discretion to be harsh but not excessive. Hi.s reasons for such a sentence 1 toweye that the ap_pellarit?as a court clerk was supposed to safeg~ard the diguity of the judiciary and not to use judge's names to obtain bribes, but instead he has tar.cu.shed the good name of our cou.rts. He deserves a sever:'!., det9rrent sentence. Lastly I must eay a word of congratulations to the learned trial Senior Besident Magistrate for his well · reasoned ju.dgement in this Qase. This is what· is required of magistrates and eepeliaJ.ly Senior 'Resident :nagistrates. His good work has made it ve.ry easy for me to handle- this appeal and in most oases! find nowhere to interfere with his findings. I hope he will keep it u.p .. As I said at the ~ery beginning of this judgement this appeal has no merit and ! dismiss it in its. entirety.