19871109 TZHC Dar es Salaam

·APPELLATE JUHISDICTION HIGH CvUHT CHIMINAL APP.t:AL NO. 86 OF 1987 UlUGil'JAL C/F. CH. APPJ!.;AL NO. 99/87 URIGINAL CRIMINAL CASE NO. 371 OF 1987 uF THE DIS'I1RICT CUUHT CJF ILALA DISTRICT AT KISUTU Bb:F'0K!!i ~. CHACHA, ES~., R£SID:t;NT MAGISTRATE. ELIA.KIM KIMAMBO •••••• "'° ••••••••••••••••• APPELLANT (Uriginal Accused) versus 'l'.lili Ul'H'l'l!:D ru;PUBLIC ••••••••••••••••• REl::iPONDKNT (Original Prosecutor) JUlJGM.!!;NT MSmu,. _J • .l!;liakim Kimambo and Ad&m Nacha have appeared before this Court as first ana second appellants respectively. In the district court, first appellant was convicted of Heceiving stolen property contrary to section 311(1) of the Penal Code while second appellant was convicted of stealing by servant contrary to section 271 of the Penal Code. First appellant was sentenced to jail for one year while second appellant was jailed for five years. ~ach of them is appe~ling against both conviction and sentence. ~he ailegations which resulted to these convictions are that a motor car gearbox belonging to the complain~nt was iound fitted in the vehicle of the first appellant. Prior to that, the said gearbox was fitted in the complainant's vehicle which at, the material time was being driven by the second appel·ant. It is the contention of the prosecution side th&t second appellant stole the gear-box while he was employed ,:ts the driver of the complainant's vehicle. Un the other hand it is contended that first appeliant received the gearbox while knowing that the same was either stolen or otherwise fraudlently procured~ \ From the evictenc~ on record, the only substantive issue is whet·her it has been established beyond rea.sonable doubt that the gearbox in queation belongs to the vehicle of the complainant. In this conn,ection, it is n<1ted with particult.r significance the evidence of ~mmanuel hambol~o (Pw.3) wh~ had been employed by the complainant as a mechanic since July, 1986. 'l'his witness has been repairing the comp]J;linant' 9 car and specifically the gearbox, for about •aight months prior to the alleged incident. iie quite vividly . . ide"i.:1tified th~ gearbox by some mechanical ~ moctification whic.h !1e made 011 it. .As a regular mechanic of the vehicle in· q~e_sti01;, P~J .3 wa:t in a better position than the -compl~inant ·.~o ider_ tify the· .i:earbox. First appellant purported to"•ictent'ify it by ~ts Part J\Jl.fllQ,er which is 21515615. It. is ••••o•e/2o - ~ .,-.·.-._,, - amazing that appeliarit Wc.S so meticulO\lS as to jot ctown this number. Unless the ~Jttirig dowri wa~ done w{fh a ~pecifi6 purp6se, appellantt~ adt was unusual. As th~ ma~ler stands, it is highly probable th&t first appellant rtci"l:ed dowri this number when the vehicl-e wns 0.t·<1e·red to be taken to pol-foe station~ First appellant had tli-e- whole day to do so before he took the vehicle to police station. ln his judgment the' ieatned triai magfstrate made a finding that first appel-lant 's vehicle had probiem with Ji. ts gearbox hence his dee§ fs:ion- t·o fraudulently at'q.ui-re the gear"!' box in q.uesth:m. ~ut: a:e:c·G>rd•ing to the availa:b'ie evidence the. Vlehicle had gearbox pF'e-bl~rh ·. ~ay " back in 1982. oef0re· it was ;,• bought by· the f1rst a:.p-1,,ecii&ht -sometimes in Feb'ruary; 1986., '.l'h.ere is. :no !=Videnc;e t:l\:at: ,t:he alleged gearbox defects peroist.ed up ti) the time when first: a:-pi,)eil.ant: acquired the ve·hfoie. Howev·er., as l have noted earliet-·f 'fi.he· ge·arbox in question h.::~s been saf_ici~ntly identified t& ~e th~t of the oompia{nant's vehicle. 11 ence whetht:r or .not at the ~-terial time the original gearbox of fiJ.st- appellant's c&r· w&s defective is not all that substantivelj material. 'l'Jie conviction~ of lioth appellants are legc ily solid. l-1.s for t.J;ie sentence 0>f ol1l.e yeo.r· impris•onment imposed .on the first appella't1t is concerned,, no adverse comment ~s j°iist.1fiable~ In t·.he circums·t:Unces of the· <fas-e',. t:his sent- .nee i5 but just too fair.. Huweve:rr.,, the scune ca?'.fn,ot• be said i-n respect of the sentence of. five: years imposed on the second· appellant.- The ;Learned t;rial magistra.t.e- purported., JO- sentenc·e: the appeilant. Under the 'l'1in:fmum. sentences, hct O with ri::spect•,: he i$ wrong. Ace ording to,..t.he Fi.r,s.t.: ~c-h:a:c.lule 0f the iVliniim.um·: ~'entences Act, t'he offence of .'.:>t·eal:iing, by,, ~-e-:r:.v,ant· becomes a scheduied o-ffence if the offender is emp.il.oy1e.d by a S).'.>eeifi'0d authority. .1-1.1ternati vely the appellant w-0uld have been sentenced und~r the Minimum Sentences Act if the gear-box. i:n ques,t:ion was 1the property of a specified authority, But what is on, Ilec or.ct. is t.hat the said gearbox belongs to a private company known as Ch~ismill. Thus insofar as it is not the statutory minfmum, the s~ntence of live years imprisonment is proportionally excessive. The circumstances of the c 8 se are such th~t the two appellant& should be punished equally. Hence the sentence of five Y8frs· imprisonment is set aside and in the alternative second app&llant.is sentenced to jail for a term of one year. Thus ex~.ept_,'~'or.:~t'he altcra_tion of the sentence imposed on the second a.ppe1lf.Qit ~ bo-~ appeals are dismissed. \ \ I \ .. H. A. 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