Deusdedith Mnyeto

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (BUKOBA SUB-REGISTRY)

AT BUKOBA CRIMINAL APPEAL NO.78 OF 2023 (Arising from the Resident Magistrate's Court of Bukoba in Criminal Case No. 149 of2021, before Massesa, PRM) THE DIRECTOR OF PUBLIC PROSECUTIONS....................... ....APPELLANT

VERSUS DEUSDEDITH MNYETO......... ........... ....... ................ 1st RESPONDENT DANIEL KIYOGERA @ EMIRIUS............ ........ ..........2nd RESPONDENT RICHARD ERNES © KASHAIJA............ 3rd RESPONDENT

JUDGMENT 25th July & 20th August 2024 KIWONDE, J. In this appeal, the appellant (Republic) is challenging the decision of the Resident Magistrates' Court of Bukoba which found all accused persons not guilty and acquitted them for the offence of stealing contrary to sections 258 (1) and 265 of the Penal Code, Cap 16 (R.E 2019). In the charge laid down against the respondents, the prosecution alleged that on various dates between June 2018 and December 2019 at Kafunjo Village within Missenyi District in Kagera Region the respondents did steal i thirty-two (32) cattle valued at TZS 26,000,000/= the properties of Emirius Rutha @ Rutareka. The respondents pleaded not guilty and the prosecution paraded a total of five (5) witnesses and tendered documentary exhibits to wit; certificate of seizure as exhibit Pl, the Veterinary Report as exhibit P2, the other certificate of seizure as exhibit P4, the other as exhibit P6, while real exhibits were cattle as exhibit P3, a bull as exhibit P5 and the heifer as exhibit P7. In defence, there were five (5) defence witnesses and two sale agreements were tendered and admitted as exhibits Di. At the conclusion of the trial, it was decided that the prosecution failed to prove the case beyond all reasonable doubts. Subsequent to the acquittal of the respondents, the court ordered the cattle taken from the 1st respondents kraal be returned. Aggrieved by the trial court's judgment and the subsequent order, the appellant has preferred an appeal to this court based on two (2) grounds as follows: 2 1. That the trial Magistrate erred in law and facts to acquit the accused persons while the prosecution case was proved beyond reasonable doubts.

2. That the trial Magistrate erred in law and fact by ordering complainant to remit cattle to first respondent without proof of how they came into his possession. The appellant prayed this court to quash the trial court's judgment and order thereof in substitute for conviction and sentence according to law. During hearing of this appeal, the appellant was represented by Ms. Gloria Lugeye learned State Attorney whilst the respondents hired the legal services from Mr. Lameck John Erasto learned advocate. When invited to submit in support of the appeal, Ms. Gloria Lugeye submitted that, the prosecution proved the case at the standard required that is, beyond reasonable doubts. She submitted that for a person to be convicted of the offence of stealing contrary to section 258(1) of the Penal Code, Cap 16 (R. E 2022) the following elements must be proved one, if there was movable property, two, if that property was in possession of the complainant, three, intention to take or move the property, four, that the accused moved and took out the possession from the possessor, .3 five, the accused did it dishonestly to himself or wrongfully gained to himself or wrongfully lost to another and six that the property was moved out without the consent of the possessor, In reference to this, she cited the case of Director of Public Prosecutions Versus Shishiri Shyamsingh, Criminal Appeal No. 54

of 2020, Court of Appeal of Tanzania (TanzLii). In arguing the first and second ingredients, that is if the property stolen was movable property and if that property was in possession of the complainant, Ms. Gloria, learned State Attorney submitted that the respondents stole the herds of cattle belonged to PW2 one Emirius. According to her, the said cattle had special marks, ESA, meaning Emirius Stephan Aniseth and they had their tails cut. She submitted that the said marks differentiated PW2's cattle from other cattle and therefore the first and second elements were proved beyond reasonable doubt. Regarding the third and fourth elements, Ms. Gloria submitted that before the trial court the witnesses explained on how they discerned the stealing of the cattle. She submitted that in between June 2018 to December 2019, there was a loss of a herd of 32 cattle. She submitted that since the 2nd respondent was the supervisor of the said cattle and he ran away after such incident then his conduct of running away made him to be the suspect of an offence. The learned State Attorney submitted that after such an incident search was conducted and they managed to get 22 cattle from the 3rd respondent one Mr. Richard Ernes @ Kashaija and the first respondent, one Mr. Deusdedith Mnyeto ©Emirius with the mark of ESA on the right legs and their tails were cut. The said cattle were seized and

certificates of seizure and real exhibits were tendered in court and admitted as exhibits, Pl, P3, P4, P5, P6 and P7. The Learned State Attorney submitted further that PW2 denied to have carried out any business with the respondents and that he did not consent to any sale of his cattle and even his names do not appear in the said sale agreements. She added in that in law, each witness has to be believed unless there is a cogent reason for disbelieving him or her. According to her, prosecution witnesses had to be trusted for their evidence adduced. To support her arguments, she cited the case of Goodlucky Kyando V. R. [2006] T. L. R 263. The learned State Attorney concluded her submissions stating that, the appellant managed to prove the case beyond reasonable doubts and she prayed this court to substitute acquittal with conviction of the respondents 5 and also this court to set aside the trial court's order which required the complainant to return the cattle to the respondents. In reply to the submissions in-chief, Mr. Lameck John Erasto, the learned counsel for the 1st and 3rd respondents submitted that the prosecution failed to prove the case beyond reasonable doubt. According to him, there are doubts on the prosecution evidence. Starting with the charge sheet he submitted that the incident took place in between 2018 & 2019 but the case was reported in 2020. Regarding this he

was of the view that since the complainant had the knowledge of the said theft then why didn't he report the said incident earlier. He submitted that in making analysis of the offence against the respondents the trial Magistrate referred the case of Director of Public Prosecutions Versus Shishir, (supra) as cited by the learned State Attorney to see whether the ingredients for the offence of stealing were proved beyond reasonable doubt in which the same was not. As to the special marks as stated by the learned State Attorney, Mr. Lameck John Erasto submitted that during trial among the exhibits which were tendered before the court were the cattle and when they were brought before the court, they had fresh blood from their tails. He added that it is not possible for the cattle which were stolen in 2018 to bleed 6 from their tails when the case was set for hearing in 2022. He said such exhibits tried to mislead the court and it creates doubts. The learned counsel further submitted that during trial, the court had an opportunity to assess demeanour of the witnesses and the exhibits tendered. To support this point, he cited the case of Mathias Timothy V, R]1984]T. L. R86 Also, he submitted that bringing five witnesses does not mean that the prosecution proved the case beyond reasonable doubt. He added in that there were variances on the evidence adduced by the

prosecution's witnesses and they contradicted each other and such contradiction goes to the root of the case. He cited the case of Emmanuel Abraham Nanyaro Vs Peniel Ole Saitabalu [1987] T. L. R 47. Concerning the evidence of the veterinary officer, PW4, who tendered death certificate of the cattle, the learned counsel said the said certificate does not state the mark of the cattle rather the cause of death which is contagious pneumonia. On the intention to move the movable property, the learned counsel submitted that there was no ill-motive because the 1st respondent explained how PW2 sold him the cattle. He further submitted that during his defence the 2nd respondent testified on how he was allowed to sell the 7 cattle and he sent money to PW2 after the sale. He submitted that this was also testified by one Anorld Si Ivan us Mkandara who testified that at some time his mobile phone was used to send money to PW2. He further submitted that, this witness testified that the said cattle were sold to other people and they had the mark of ESA. He further submitted that the evidence shows that only 22 heads of cattle were taken from the third respondent who lawfully bought the same as proved by the sale agreements. According to the learned counsel the trial court considered the evidence of both sides and acquitted all accused persons. To support this point, he cited the case of

Leonard Mwanashoka V. R [2016] TLS L.R41. On the issue of the conduct of the 2nd respondent to run a way, the learned counsel submitted that, that is a mere suspicion and it is not the basis of holding person liable. He said that during trial/ Daniel Kiyogera (the 2nd respondent) stated that when the charge was filed before the court, he was not around because at that time they had a fight with his neighbour and he decided to run away. The learned counsel submitted that since the learned state attorney did not cross examine on that fact then such facts should be regarded as true and admitted. 8 The [earned counsel concluded his submissions by stating that, the prosecution failed tq prove its case beyond reasonable doubt while the defence raised doubts on the ownership of the said herd of cattle. To support this point, he cited the case of Fanuel Kiula V. R [1967] HCD No.

369. He thus prayed this appeal to be dismissed and the decision of the trial court be upheld and the cattle be returned to the 3rd respondent who lawfully bought them. In rejoinder the learned State Attorney submitted that, they still insist that the prosecution proved the case beyond reasonable doubts. She submitted that the delay to report the crime was because PW2 believed on 2nd respondent's statement that some of the cattle were eaten by crocodiles and lion. Regarding the submission that Daniel Kiyogera had a fight with his neighbour the learned state attorney submitted that, that is not true because if it was true then why didn't he inform PW2 that he was leaving. She further submitted that, that was guilty consciousness and that is why he ran away. In respect to the fresh blood from the cattle tails at the trial, the learned State Attorney rejoined that PW2 testified that the cattle were injured during transportation and that the prosecution witnesses maintained the 9 story on the happening until when they found the said cattle to the respondents and if there is any discrepancy is minor and does not go to the root of the case. She further cemented that in law, minor contradictions show that the witnesses did not make rehearsal on what to testify, but they were testifying on what they knew. She cited the case of PC George Versus Republic, Criminal Appeal No. 8 of 2018,

Court of Appeal of Tanzania [2022] TanzLii. Responding to the argument as to the evidence PW4, the learned State Attorney submitted that the said witness testified on the form which he filled in which does not have the part which required him to fill the marks of the cattle. She said that PW2 never consented to the sale of the said cattle and he did not conduct any business of selling cattle with the respondents nor did he authorize Daniel Kiyogera to sell the cattle on his behalf. The learned State Attorney further submitted that there was no any evidence of giving or sending money to PW2 and that the sale agreements do not show that Daniel Kiyogera sold the cattle on behalf of PW2. She therefore, reiterated to her previous prayers that the prosecution proved its case beyond reasonable doubts and that this court should grant the prayers prayed. io Having gone through the rival submissions from both parties and the lower court records, the issue for determination is whether or not this appeal is meritorious. It is elementary legal principle that the burden of proof in criminal cases lies on the prosecution and never shifts unless it is provided for by law and the standard of proof is beyond all reasonable doubts as stipulated under sections 3(2) (a) and 110 of the Evidence Act, Cap 6 (R.E 2022). This was a position stated in the case of Mohamed Matula w Republic [1995] T. L. R

3. In the present appeal, the appellant/prosecution was duty bound to prove the charge of cattle theft beyond all reasonable doubts. The law is clear that for a person to be convicted of stealing the prosecution had to establish by evidence the ingredients of the offence of stealing. These include; if there was movable property of another, whether actual owner or possessor, if that property was in possession of the complainant, intention to take or move the property, that is fraudulent and permanent deprivation of the property from the owner or possessor, that the accused persons moved and took put the possession from the possessor (asportation), and that the accused did it dishonestly to himself or ii wrongfully gained to himself or wrongfully lost to another and finally, that the property was moved out without the consent of the possessor. The available evidence on records indicates that the said stolen cattle belonged to PW2, one Emirius Rutha @ Rutareka with such mark ESA". These were found in the possession of the respondents but they defended that the are legal owners of the said cattle since they bought them from one person known as Daniel Kiyogera (the 2nd respondent) and they tendered sale agreement to prove the same. The trial court confirmed that the cattle had such mark described by PW2 and their tails were cut-off but they had fresh cut wounds on their tails which

PW2 said they were injured during transportation. From the evidence on record, it is apparent that the cattle of PW2 with mark ESA were taken from their usual place and possession of the owner to the respondents. The asportation as an element of actus reus was proved. The sub-issue here is whether there was ill-motive or fraudulent deprivation of the properties from the owner to constitute mens rea. Once there is evidence to the effect that the respondents bought the cattle, then the mens rea is eroded. The respondents produced in court at the trial the said sale agreements which were admitted as exhibit DI collectively. Apart from that DW2, Daniel Kiyogela testified in defence that as a herdsman of the cattie of PW2, Emirius Rutajana, his boss showed 12 the first respondent, Deusdedit, some cattle he wanted to sell to him and after agreeing the purchase price, Deusdedit communicated to his boss Richard Ernest Kashaija who sent him the money via M-PESA, then Ismail withdrew it and DW2 handed the money to Emirius (PW2). The defence witness said at other time the money was given to Abela for safe custody and Emirius Rutajana went to collect it. Furthermore, DW5, Abela Deusdedith supported the defence evidence of DW2 that Emirius Rutajana sold the cattle and he directed Daniel Kiyogela his cow boy to do so, she eye witnessed the owner, PW2 communicating with DW2 about the

matter as they used her mobile phone and she saw PW2 collecting the proceeds of sale. Leave that alone, DW3, Richard Ernest Kashaija testified that he bought such cattle of PW2 via his supervisor Deusdedith Mnyeto and DW4 confirmed that PW2 consented that Daniel Kiyogela sell his cattle on his behalf. Therefore, the issue of sale was adequately proved. In other words, the first and third respondents are bona fide purchasers of the cattle for value. They did not steal them as there was agreement to sell and buy the property. The appellant does not dispute this fact that the first and third respondents bought the cattle sold by Daniel Kiyogela. Instead, the appellant is challenging the validity of the sale on reason that PW2 did not 13 consent to such sale for he did not authorize Daniel Kiyogela, his servant to sell the cattle on his behalf and that the respondents did not prove that the money was sent via M-PESA. At this juncture I should state that the respondents who were accused persons at the trial had no duty to prove their innocence. Their only burden was to raise doubts on the prosecution evidence. The burden of proving the case does not shift from the prosecution to the accused. Oh the foregoing observations, this court finds that the prosecution failed to prove its case beyond all reasonable doubts. The first ground of appeal is devoid of merits. On the second ground

of appeal, the learned State Attorney could not submit on it but Mr. La meek Erasto asked the cattle be returned to the third respondent after maintaining the order of acquittal given by the trial court. Having acquitted the respondents, the trial court was justified to give an order as to the exhibits tendered in court, the cattle. The acquittal meant that there was no stealing perpetrated by the respondents. The cattle were bought for value. So, it was right to order them be returned to the buyer, the third respondent, Richard Ernest Kashaija because the first respondent Deusdedith Mnyeto was acting on his behalf. The cattle taken from the first respondents kraal, Deusdedith Mnyeto who acted on 14 behalf of the third respondent Richard Ernest Kashaija be returned back to him. The second ground of appeal too fails. To that end, I find the entire appeal is without merits and it is hereby dismissed. The judgment and order of the trial court in Criminal Case No. 149 of 2021 are hereby upheld. It is so ordered. Dated at Bukoba this 20th August 2024.

JUDGE 20.08.2024 Court: Judgment is delivered in chamber in the presence of Ms. Gloria Lugeye learned State Attorney for the appellant, Mr. Lameck John Erasto learned counsel for the 1st and 3rd respondents who are also present and Grace Mutoka (RMA) but in the absence of the 2nd respondent and the right of further appeal is explained. 20.08.2024 15