19771223 TZHC Tabora

/ • . . ":j.i, IN THE 1IGH C(-;URT. .CF'TANZANIA

AT MVANZA 4. A1'PE1,L1 TL JurIsDIcTIcN (Tabora Icgistry) H H (HCCR'IN.INAL APPEAL 'NC. 1B8OF .,1977 O1{IGINJL CRTh INAL CASE' NC. 141 OF . 19.77 OF THE flISTICP CCTJRPrF.SHINYJ.NGi DISTRICT

AT SHINYINGA ,. •. Before: B. 'P. ..oshi, Esq., Resident it.agistrate. DAUDI KIBILI .. . . ... . .. .. • . . . . APPELLANT I versus: THEREPUBLIC •eo...o•o••• ....•• • ...... RESPONDENT CHAiGE: ... Siteaing by. servant, contrary to Sectio:n 271 of the Penal Code. JUDGENT, . .1 . . IrGANC J • . ': .'''• The p1lantDAUDI 1IiLI was coñvité'd:ôf's±ealing'' by servait',.óontr a r to:'..Secti'on271nd265ô" thdFei'l C00 and sentenced to.thrqe years imprisonment... he has appealed '.iThe'charge a1leéd that h had i. 19//77, tdr' SUfl Of .1s..1O,OOO/,. .theprop'rty"of his' mló'yer,' 01 ne. 4, ,HUSSIN SALU1. the incident •tkirg place at Bal'ewa' Street in Shinyaga t.own.;T.othtr charge he pleaded ñot guilty. Th prosecution led evidenc to s1iow tht HUSSE'IN. SALUJH was a businesman whd owned and ôpezteda 'ahop in' Shinyanga, and that he had employed th' ppl1'ant as a shop attendant. Evidence ias also led to show that on 16/3/77 Husein Salurl had, at the end the day, a su of Shs.1O,OOO/' as' shop-sale proceeds.' e put ehel mo'iey' in 'a small bag 'and" kept the bag on the shelf' in thstor'e.'' The appellant wasin the shop' 7. and ha saw all that'happened.'On 19/3/77 the mbn'ay had va nished.Suspecting ' the 'appellant', Hussi.n Salurn asked hirn about it. The a 1;peilant prfesséd ignorance. However, later on the sane day he'told.Hussëin, within the presence àfPI.4 Salehe, tlat h had taken a

sum :f Shs.3,00.0/=. from the bag and invited them to accompany him to his home to collect the SaMei, Hussein agreed and on the next day they set out 'for his home at Mwaritine s'here, on arrival, the appellant . . . . . . . . /2 .-..2 discussed the matter with his father, P'J.3 Kibili, and his grandfather, one Marco. he asked Marco to pay Shs.3, 0 00/= to hussein on his behalf and 1"1arco agreed and duly paid that amount and.also pi- omi.sd that he wi 1d,-' bn the next day, pay the b'Iance,: 'Shs.7, 0 00 /±,after he hadwithdrawn the arount from 'the bank. Atnd in order to reasire Hussein, Marco surrendered his bank pass-book, 'which showed a balance of $L.iOOO7/=,to him. •But Marcocame to town lae on the following day and on the siibequ.ent morning he approached Hussein and asked for the pass-book, tellirg. him hat he WOUl'Withdrw the monc; and bring it to him. Hussein bought that story and returned the ps-b.ok. Marco did not show up as promised.FIUSseifl went to the Police about it. P.. i 3 .,Kibili ,'. the 'fther 'f 'th ápéllnt, gave evidence V essentially concurring with--H &s'e-iri'.'-' The appellant denie 1d onmi'tting t h e ofi'ence. BC admitted that he took Hussein to Mwaritine bii alleged that this was purely because Hussein, had threatened to stab him. He also adliuitted that Hussein •took the pass-book from his grandfather, but alleged 'that Hussein had

extortdt:...,, from Marco. The lerned magistrate bclieved th. prosecution case and disbeliqved the a - pellant. He held that 'the facts proved and the circi7 ristances surroundrng t s incident pointed only in the direction of the appellant's guilt.and . ..th .at it was inconsistent with his innocence. Hence the conviction. The appellant's nin ground of appeal is that the evidence on rccord was lessth n conrinc1ng and I that it showed no more than that there was a possibility that he stoi,..e the floey. The Hepublic supports' the conviction and I myself see no Z'eason to disturb it. Is the learned Magistra'e directed hims1f, the appellant had free access to the room in whicht'he moneyhid.been.kePt.'Andtha't the conduct of the appellant immedi.ately after the noney wa found nlssing gravely connected hiti with the theft. i He admitted stealing part of it and made a,jQurney to:his.. parentsir!tht - egard. The austion is why Aisj he do so'.if.hp..was not at all involved. He.contended that .ho.ras.t.hreat:ëyidwj'th a 'stabbing. This is unbelievable because as. the learned .hagistrate ' properlr pointed out, ho never made any report to any body to that effect, i.spite of the fact that he had ample opportunity to do so. vhat is mor , he hd his grandfat tnar surrender his pass-book to Hussein. c alleged in Court lth:t -3- it was forcibly seized by Hussein. Again, that is uñbelievabla. I

cannot see how his grandf6ther would have acquiesced in that. In all probability he would have made considerable comrotion about it. And I cannot see how Hussein would have been able to leave the place with the pass-book under those circumstsnces. For what I have said and as the sentence cannot be said to be excessive, I dismiss the appeal in its entirety. Delivered in Court. Appellant Absent. Mr. Sengwajj for the Republic. Tabora, D. P. MAPINo, • 23r4 December, 1977 JUDGE. I I • I. . • •.•. 7. • I' 4