edward magambo vs republic 2014 tzhc 2099 14 april 2014

IN THE HIGH COURT OF TANZANIA

AT TABORA

APPELLANT JURISDICTION (Tabora Registry) (DC) CRIMINAL APPEAL NO 118 OF 2012 CRIMINAL CASE NO. 176 OF 2010

OF THE DISTRICT COURT OF KAHAMA EDWARD MAGAMBO................................................ APPELLANT (Original Accused)

VERSUS f THE REPUBLIC.....................................................RESPONDENT (Original Prosecutor)

JUDGMENT 17th/2 & 14th/ 4/ 2014 S.M.RUMANYIKA. J On 4th October, 2011 Edward Magambo (the appellant), the 2nd accused then (amongst seven of them) stood charged with, and was convicted for the offences of conspirancy to commit offence, (1st count) office breaking and stealing. Contrary to sections 384 and 296 (a) and (b) of the Penal code cap. 16 R.E 2002 2nd and 3rd counts respectively. The sentences of four (4) years and six (6) years imposed by the trial court - Kahama. To run concurrently. He is aggrieved. Hence essentially four (4) grounds of appeal.

1. The trial court erred in law having imposed stiff sentence. Contrary to what was required of the doctrine of recent possession. Improperly invoked any way.

2. Failure by the learned trial magistrate to proceed with the case partly heard by fellow, but without addressing the provisions of section 214 of the Criminal Procedure Act cap. 20 RE 2002.

3. Failure by the trial court to bring in court Edward George who actually had sold the stolen set of TV to the appellant. Hence convicting him basing on the defence evidence.

4. Error by the learned trial magistrate having convicted him without any direct evidence to suggest that appellant was identified at the scene. The appellant at the hearing, had nothing to submit in chief. He appears in person. Mr. J. Masanja learned state attorney appears for the respondents. The learned state attorney submitted that the sentences imposed were within the ambits of law. That the doctrine of recent possession was properly invoked. Much as the appellant too, admits that in a duly conducted search, he was found possessing the stolen TV. Just in the same material night. i 3rdly, that as longer as it was not compelling, the provisions of section 241 of the CPA were not abrogated. The previous trial magistrate being away from the station, and no party was prejudiced, the proceedings were concluded by a fellow magistrate. Responding to the state attorney's submissions, the appellant stated like saying that the charges of stealing were not proved. Much as non of them (he and the complainant) had no documentaries proving ownership. And he (appellant) wasn't identified at the scene. It's evident in a nutshell from the record of the trial court, that between 16.00 and 02.00 hours of 22/04/2010 (and probably of 23/04/2010), the office of Berther M. Kinungu of Malunga village - Shinyanga district, the accused and co - conspirant broke into, and they stole from therein, an

assortment of items estimated at sh, 9,827,000/=. The property of said Berther M. Kinungu. The police search lead to recovery from appellant's home a TV set make ZEK, a piece of subuffer, speaker and a deck (exhibits "B", "C", "E" and "E"). Whereby the appellant admitted the offence and mentioned the co - culprits. Nevertheless, the appellant claims title on the alleged properly. Having bought the same on 22/04/2010 genuinely from one George Edward. Only that the vendor issued him no material cash sale receipt. As the latter had been retained by the vendor's wife. Then missing. Whether or not the appellant confessed, like changing his previous plea, it is not my concern here. Neither the charge was read to him nor the trial court re invite any plea. The issue is whether the doctrine of recent possession was properly invoked by the learned trial resident magistrate. It is trite law that where an accused fails, on balance of probabilities, to give a reasonable and probable account on how he came by the property now allegedly stolen recently, the presumption shall be that he is the one who stole it. The accused did not bring a person allegedly sold it (TV) to him. Leave alone a cash sale, or possibly any documentary(s) ever just issued to him by the vendor (George Edward). Even the venders wife was not called to testify on this one. In other words the accused failed to give any

reasonable explanation about how he came by the property (set of TV). Now identified by own paternal unt being hers. I think she had no reason to lie. The allegations of "purchase" by the % accused are discounted. As this court once said in the case of Martin Ernest V R (1987) TLR. Since the case depends on the appellant's credibility and since he had failed to give a reasonable explanation as to how he came by the property found on him, the appellate court cannot fault the trial court findings. The issue, whether or not the complainant identified properly the property being hers, it can not be tenable under the circumstances. Much as the appellant is proven not credible. Leave alone all such reasonable circumstances leading to its immediately recovery by the complainant. Nor was the evidence even circumstancial. As this court once held in the case of the Director of Public Prosecutions V Elias Mwashitete and Another (1997) TLR 319, (Mwipopo J). As then was. Ground 3 and 4 dismissed. On the question of non compliance by the trial magistrate, of the provisions of section 214 of the. CPA, the appellant might be right (though only for the sake of it). The records of the trial court will clearly show that the matter having taken off on 06/12/2010, Mr. K.M.Mutembei learned resident magistrate presided it over and iventually convicted the appellant. Then Mr. J.S.K Hassan,

learned resident magistrate announced the sentence on 04th October, 2011. As said, the sentence is a subject matter of this appeal. It is not known, as to what then had happened to the convicting Mutembei. So that he failed to pronounce the sentence. Very unfortunately the date of conviction is not even shown. Nor is it clear if one had adjourned the matter with sentence reserved. This certainly was yet another unusual procedural acrobatics in court. I think this is expected not to happen once again in future. It follows therefore that where a convicting magistrate does, for no reason at all, not impose sentence, but another magistrate does, the sentence so imposed by another magistrate shall not, unless the sentence is not manifestly lenient/excessive, be unlawful. However, the provisions of section 384 of the penal code impose a less than three (3) years custodial sentence: Any person who conspires ....... to commit anv offence- punishable with imprisonment for a term of three years or more.... or, if the greatest punishment to which a person convicted of the offence in question is liable is less than imprisonment for seven years, then to such lesser punishment. The offence of office breaking to which the appellant is said to have conspired to commit attracts ten years imprisonment maximum. Section 296. Anv person who - (a) ........ 6 (b) Having committed an offence in any

building referred to in paragraph (a) breaks out of the building, is guilty of offence and is liable to imprisonment for ten years. The sentences of four (4) and six (6) years respectively running concurrently were not excessive. Having too considered it was a gang breaking and stealing, and the appellant was no first offender. Grounds 2 and 1 of appeal are unsuccessful. In the result, I dismiss the entire appeal, uphold both conviction and sentences. My order accordingly. R/A explained. S.M.RUMANYIKA

JUDGE 24/ 3/2014 Delivered under my hand and seal of the court in chambers. This 14/ 04/2014. In the presence of Appellant and Mr. Innocent Rweyemamu State Attorney for the Respondent S.M.RUMANYIKA

JUDGE 14/ 4/2014