james kayusi ephrem vs republic 2015 tzca 278 23 february 2015

IN THE COURT OF APPEAL OF TANZANIA

AT ARUSHA (CORAM: MJASIRI. J.A.. KAIJAGE. 3.A. AND MUSSA. J.A.^ CRIMINAL APPEAL NO. 351 OF 2014 JAMES KAYUSI @ EPHREM............................................ APPELLANT

VERSUS THE REPUBLIC............................................................ RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Moshi) (Munisi. 3.^ dated the 14th day of March, 2014 in Criminal Appeal No. 19 of 2012

JUDGMENT OF THE COURT 13th& 23rd February, 2015 MUSSA. J.A.: In the District Court of Rombo, sitting at Mkuu, the appellant was arraigned and convicted of robbery with violence, contrary to sections 285 and 286 of the Penal Code, Chapter 16 of the laws. Upon conviction, he was sentenced to a term of fifteen (15) years imprisonment. Dissatisfied, the appellant preferred an appeal to the High Court which was, however, dismissed in its entirety (A. A. Munisi, J.). Undaunted, he presently seeks to i impugn the decision of the first appellate court in a memorandum of appeal comprised of six points of grievance. At the hearing before us, the appellant was fending for himself, unrepresented, whereas the respondent Republic had the services of Ms. Twide Mangula who was assisted by Ms. Ellen Rwijage, both learned State Attorneys. The appellant fully adopted the memorandum of appeal as well as his written submission in support thereof. He did not further expound on the grievances raised as he opted to respond, if need be, after the submission of the learned State Attorney. As it turned out, Ms. Mangula resisted the appeal and was fully supportive of the conviction and sentence meted out to the appellant. In order to appreciate the force behind the rival contentions of the parties, it is necessary to reflect on the factual setting giving rise to the arraignment, trial and ultimate

conviction of the appellant. During the trial, from a total of four witnesses, the case for the prosecution was to the effect that on the 6th August, 2010, at Shimbi Mashariki village, Rombo District, the appellant violently stole a Motorola cellular phone from the person of Anastazia Antigoni (PW1). The evidence was to the effect that Anastazia (25), owns a house at the Village which is, incidentally, located near the border with the Republic of Kenya. Anastazia resides in the house with her family but she has also let a room to Pius Rogath (PW2) who operates a retail shop on the rented room. On the fateful day, around 9.00 a.m. or so, Anastazia was mowing grass for her cattle within the precincts of the residence. Pius, the tenant, was at his shop but, a little while later, he asked his landlady to stand in for him at the shop whilst he left to attend a matter at his home. Soon after, Anastazia sighted two men who were knocking at the shop's door. Those two were completely strangers to her and, in an apparent friendly gesture, Anastazia asked if she could help them. In response and, rather strangely, the two visitors physically descended on the young lady in a frenzy of assaults which eventually fell her to the ground. In the course of the standoff, one of the assailants snatched a Motorola cellular phone from 3 \ Anastazia's grip and, with it, the assailants took to their

heels heading towards the border. The victim followed them in pursuit whilst wailing about and, no sooner, several villagers joined her in the chase. Fortunately, one of the pursuers had an edge over the fleeing culprits and, having closed in, he brought down one of them with a tackle. The other culprit crossed the border and disappeared beyond the reach of the pursuing villagers. The fallen culprit was briefly roughed up by the villagers but, he was eventually securely restrained and handed over to a police officer who attended the Scene, No. F. 7109 Defective Constable Shukuru. As it were, the apprehended man turned out to be none other person than the appellant herein. Upon an impromptu body search, a Motorola cellular phone was retrieved from the right hand pocket of his pair of blue jeans. Anastazia instantaneously recognized the mobile phone to be the very one dispossessed of her during the encounter with the culprits. Thereafter, the appellant was arraigned and, so much for the prosecution version during the trial. 4 In reply, the appellant was fairly brief in his denial of the prosecution accusation. He told the trial court that he is a peasant resident of Mengeni Chini Village, Rombo District. His account was to the effect that, on the morning hours of the fateful day, a friend of his, namely, Bahati Kened called at his home and requested his company to Huruma Hospital

where her sister (Bahati's) was hospitalized. From the hospital the appellant and his colleague headed towards Mkuu Township where the latter wanted to send a letter to his grandfather. He also wanted to purchase some sugar and so, upon reaching Munga area, Bahati made a diversion to a shop where he, allegedly, knocked at the door but the shop keeper was absent. The two of them then resumed their walk but, just then, a girl emerged from behind and commanded Bahati to return the phone he took. In response, Bahati told the appellant that they should run away and, indeed, he started fleeing immediately whilst the girl who came from behind shouted in alarm. The appellant, allegedly, found no cause to run and was apprehended there and then by the villagers who answered the girl's wailing. The appellant claimed that the villagers searched and dispossessed of him a sum of Shs. 4,000/= but he was emphatic that no cellular phone was retrieved from his person. He just as well refuted knowing Anastazia. In a nutshell, the appellant completely disassociated himself from the prosecution accusation to which he was seemingly suggesting that the blameworthy person was his fugitive friend. On the whole of the evidence, the trial court was fully satisfied that the prosecution witnesses told a credible version. The appellant defence was considered but rejected, more so as the incident occurred in

broad daylight and, in addition, the appellant was apprehended soon after the robbery in possession of the stolen mobile phone. In the upshot, the appellant was found guilty, convicted and sentenced to the extent already indicated. The first appellate court, was just as well impressed by the prosecution witnesses and found no cause to fault the trial court's verdict. As hinted upon, the appellant seeks to deplore the two decisions below through a six grounded memorandum which conveniently boils down only two points of grievance worth our consideration. These are, respectively, grounds 2 and 6 of the memorandum which go thus:- 6 ”2. That the first appellate judge and the trial Magistrate grossly erred by holding and making findings to convict the appellant for receiving the alleged cellular phone as exhibit without any proof from the prosecution ie. Serial number or receipt.

6. That the first appellate Court and trial court erred both in law and fact for holding and making findings to hand over exhibit PI to PW1 before the ruling andjudgment o f the court." We propose to first address the sixth ground with respect to the disposal of the mobile phone which was adduced into evidence by the prosecution and marked "exhibit PI". In this regard, we think it is instructive to have in mind the provisions of section 353(3) of the Criminal Procedure Act, Chapter 20 of the Laws (CPA), which we reproduce in full:­ " Notwithstanding the provisions o f subsection (1), the Court may, if it is satisfied that it would be just and equitable so to do, order that anything tendered\ or put in evidence in Criminal proceedings before it, should be returned at any stage of the proceedings or at any time after the final disposal of such proceedings to the person who appears to be entitled thereto, subject to such conditions as the Court may see fit to impose." [Emphasis supplied]. In the case under our consideration, it is trite to observe that when asked whether he objects to the tendering of the mobile phone by the prosecution, the appellant told the trial court thus:- 7 have no objection your honour. The cellular phone is not mine and I don't know its owner." At the close of the case for the prosecution, that is, upon a request from the Public Prosecutor, the trial

Court returned the cellular phone to Anastazia, specifically on account of the appellants' disclaimer. It is noteworthy, however, that by an apparent strange twist of desperation, the 8 appellant changed his version at the hearing of the first appeal and told the presiding judge that the mobile phone in issue was his property. But that was a mere submission as distinguishable from a testimonial account. Incidentally, at the hearing before us, the appellant once again, made a turn about and resumed his stance to the effect that the mobile phone was not his. To be sure, despite the appellants meanderings, the evidence on record is as was adduced during the trial and, given the fact that the appellant disowned the phone, the trial Court justifiably exercised its discretion to dispose of the item in favour of Anastazia. Thus, in the end result, we are unable to accommodate the raised complaint. Addressing now second ground of appeal, in her submission, Ms Mangula discounted the need for Anastazia to produce a receipt or serial numbers of the mobile phone, more so given the fact that the appellant was apprehended moments after the robbery in possession of the stolen phone. We entirely agree. To us, it is rather farcical to demand a receipt from the victim in a factual situation, such as the present, where the chronological chain of the evidence directly linked the victim to

ownership of the stolen item. It should be recalled that soon after the robbery, the 9 appellant was pursued and apprehended and found red-handed in possession of the stolen mobile phone. To this end, we are fully satisfied that the mobile phone retrieved from the appellant's trousers pocket had reference to the one snatched from Anastazia and, for that matter, the doctrine of recent possession was properly invoked. To say the least, in the light of the foregoing, we are satisfied that the conviction and sentence imposed on the appellant cannot be faulted. The appeal is without a semblance of merit and we, accordingly, dismiss it in its entirety. DATED at ARUSHA this 19th day February, 2015. S. MJASIRI

JUSTICE OF APPEAL S. S. KAIJAGE

JUSTICE OF APPEAL K. M. MUSSA

JUSTICE OF APPEAL ri. P P p -->► certify that1this, is a true copy of the original. a / crx ^ i'V ( L # Si " * v 'Z \ z. A. NtaKLJMA \*. I' 7 DEPUTY REGISTRAR ^ COURT OF APPEAL -d V'\ - ------------------ ^ 10