Elias Kasebele 2Others vs Republic DC Criminal Appeal No

IN THB H IG H OOWIWP Off ” .Pl2SW‘,", \. /£ i£ IB

AIIELLATB JURISDICTION (Mbeya Registry) DC. CRIMINAL AIIEAL NO.1^5 OF 200k (From. Mbeya District Court Criminal Case No.6¥f of 2003) 5 1. ELIAS KASE3ELE Jj 0 .............. AIIELLANT3 2 . ZAWADI JACKSON 8 3. EMMANUEL MWAMENGO I

VERSUS THE ilEI UBLIC ......................................... „ . • ...............RESION33ENT JUDGIffiNT MACKANJA, J . The appeal was allowed on 11th April, 2005 when it was called for hearing. Consequently, I quashed the conviction in respect of each appe­ llant $ the sentence against them and the order for compensation were set aside. In the result each of the appellants v/as set free. The reasons which were reserved are now given herein below. The appellants were convicted of conspiracy c/s 38^- of the I enal Code and of storebreaking and stealing c/s 296(1) of the I:enal Code. Each of them was, following the convictions, awarded three years and eight years of custodial sentences, respectively, in relation to the first and the Second Count. The evidence on which the convictions were, founded was, if anything, very brief indeed. According to one Alfeyo Mkisi (IV/2) , v/as then employed by a firm he referred to as Dhnndoo Group Ltd, as a an .assistant supervisor. Reading between the lines, as there is no direct evidence on fJaj r point-* it seems that M/S Dhandoo Group Ltd has a whorehousing facility. The premises of that Company were being guarded a Security firm which was referred to as Trans«Highway Company Ltd. The appellants were employees of that security firm# It was the prosecution Case that Elias Kasebele, the first appellant, approached TW2 at about 11.00 pom. on

26th June, 2003, trying to enlist the form in a deal to steal sugar which was stored in containers at the premises of M/S Dhandoo Group Company Ltd. It would appear that the theft was net committed that day. His services were brought to an end on 28th October, 2003• I-W2 claimed in cross « examination that he reported the planned theft to the iblio®. I-Iowevor, there was no evidence at all that the Police ever received m*ch a report* Theft of Sugar was discovered at 1.00 p #m* on kth November, 2003 by one Bashiri Msangi (TW1) who was the Mbeya Branch Manager of Kilomberc Sugar Company Limited© While he was at the I dice Station where ho had gone to report the theft IW2 showed up and narrated how he had refused to take part in the stealing. All the appellants disclaimed Criminal responsibility. In fact the theft was discovered at a time they had -already knocked off. The Republic has distanced itself from the oonvictions. Mr Mv/enda, learned State Attorney, gave several grounds why the Republic decided to decline. Firstly, he said there was no evidence that.the appellants guarded the premises around the dock. In fact there is evidence that the premises were guarded in rotational shifts0 And this explains why the appellants had reported off-duty when FW2 discovered the theft at 1.00 on 4th November, 2003* It was possible, Mr. Mv/enda added, that theft could have been committed

v/hile the appellants were off~duty* I agree. Secondly, it was Mr. Mwenda-’s submission that since the padlocks were opened, someone must haye done so with the use of keys© vJhoever had the keys was the thief. Thirdly* Mr* Mwenda learned State Attorney, correctly made the point that IW2 fixed the appellants and the first accused who was acquitted avenge his dismissal from employment• It was upon the foregoing reasons that the ajjpeal was allowed5 convictions in respect of each appellant were quashed and the sentences and order for compensation were set aside* In the end the appellants were set free. Delivered in the absence of the parties* Sg'A. J o m. mackanja

JUDGE 15/12/2005

HTSYA