Joseph Judgement Final

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB-REGISTRY

AT GEITA CRIMINAL APPEAL No. 5721 OF 2025 (Arising from Criminal Case No. 28665 of 2024 of the District Court of Bukombe) JOSEPH MATHIAS KASAKUYO………….………………………. APPELLANT

VERSUS REPUBLIC………..………………………………………………..RESPONDENT

JUDGMENT Date of Last Order: 14/03/2025 Date of Judgment: 21/03/2025 MWAKAPEJE, J.: This is the first appeal by the appellant, Joseph Mathias Kasakuyo, which originates from Criminal Case No. 28665 of 2024 in the District Court of Bukombe. In that case, the appellant was convicted of theft contrary to sections 258 (1) and 265 of the Penal Code, Cap 16 R.E.

2022. Following his conviction, the appellant was sentenced to five (5) years imprisonment. Briefly, the facts of the case are that on 6 September 2024, at Nampangwe Village, Bukombe District, Geita Region, the appellant was accused of stealing a red motorcycle, SANLG make, with registration number MC 829 EDT, belonging to PW2, Issa Musa Mhozya. The appellant denied the charge, prompting the prosecution to call six witnesses to prove the case. Page 1 of 16 PW1, E.8995 Sergeant Didas, a police officer stationed at Bukombe Police Station, stated that on 7 September 2024, while on duty, he received the stolen motorcycle from PW4, Detective Sergeant Asley, who had recovered it during the investigation. The motorcycle, which was admitted as Exhibit M1, was kept at the police station for safe custody. PW2, Issa Musa Mhozya, testified that he purchased the motorcycle from Saimoni Daudi in 2024 through a formal contract, with the documents admitted as Exhibit M2. He recounted that on 6 September 2024, he received a call from PW3, Anthony Joseph, a friend of the appellant, requesting transportation for the appellant to Nampangwe Village for an agreed fare of Tshs. 15,000/=. PW2 agreed and transported the appellant. Upon arrival at the destination, the appellant requested to use PW2's phone to make a call. While PW2 briefly stepped away, the appellant took the opportunity to ride off

with the motorcycle. PW2 immediately reported the theft at Runzewe Police Station and later identified the stolen motorcycle (Exhibit M1) when it was recovered. PW3, Anthony Joseph, stated that he had known the appellant since 2019 and mentioned that on the night of 6 September 2024, the appellant came to his garage intending to hire PW2's motorcycle. After the appellant left with PW2, later that night, PW2 returned to inform him that the motorcycle had been stolen by the appellant. PW3 advised PW2 to report the incident to the police. On 7 September 2024, PW3 learned of the appellant's arrest in Tabora and, while acting as a surety at the police Page 2 of 16 station, heard the appellant admit to stealing the motorcycle and taking it to Kahama District to start a new life as a boda boda rider. PW4, Detective Sergeant Asley, reported that on 7 September 2024, he received instructions from ASP Nkindo, the OC-CID of Bukombe, to proceed to Nzega District to apprehend the suspect. Upon arrival, PW4 met with PW5, the Ward Executive Officer of Igusule Ward, and found the appellant in possession of the stolen motorcycle. He completed and signed the seizure form, which was admitted as Exhibit M3. PW5, Salvatory Mwombeki, testified that on 7 September 2024, while at his office, a group of boda boda riders brought the appellant and the stolen motorcycle, expressing suspicion regarding its

ownership. Upon questioning, the appellant admitted to stealing the motorcycle from Runzewe. PW5 immediately informed the relevant authorities, and police officers, including PW4, took the suspect into custody. He also signed the seizure certificate (Exhibit M3) and confirmed its details in court. PW6, Ramadhani Samson, a boda boda rider from Nzega District, stated that he had apprehended the appellant on 7 September 2024 after becoming suspicious of his ownership of the motorcycle. Upon being questioned, the appellant confessed to stealing it from Runzewe. PW6 signed the seizure certificate as a witness and observed as the police took the appellant into custody. DW1, Joseph Mathias Kasakuyo, the appellant, asserted that he had hired the motorcycle, identified as Exhibit M1, from PW3 for a journey to Page 3 of 16 Nzega. He explained that he and PW3 had been long-time friends. DW1 further claimed that on the day of his arrest, he was apprehended at Uswule after contacting the motorcycle's owner. To his surprise, the owner accused him of theft. Following this testimony, the trial court found the appellant guilty of the offence of theft and convicted him accordingly. Dissatisfied with the trial court's findings, the appellant now appeals to this Court on the following grounds: (1) That the trial Magistrate erred in law and fact to convict the Appellant while he denied committing

the offence of Theft C/S 258 (1) and 265 of the Penal Code (CAP 16 RE:2022). In this way, the trial court failed to follow up in detail on why the appellant pleaded not guilty to committing this offence. (2) That the trial Magistrate erred in law to convict the Appellant by using poor evidence brought by the Prosecution side and to charge the appellant with the wrong offence, which was not committed by the appellant. In fact, the Appellant had a contract as boda boda to drive a motorcycle of Issa Musa Mhozya. (3) That the trial Magistrate court erred in law and fact in convicting the Appellant by using poor evidence given by the Prosecution side. Thus, no witness proved fully in the trial court that the appellant stole the motorcycle. (4) That the trial Magistrate court erred in law and fact to convict the Appellant without considering the defence given by the Appellant. (5) That the trial Magistrate court erred in law and fact to convict the Appellant by using an incomplete Judgment which didn't state how many years the Appellant was convicted in jail. This appeal was argued orally. The respondent was represented by Ms Deodatha Dotto, learned State Attorney, while the appellant appeared Page 4 of 16 in person. When the appellant was invited to address the Court, he adopted the grounds of appeal outlined in the petition of appeal. In reply, Dotto started by opposing the appeal.

Regarding the first ground of appeal, Ms. Dotto asserted that the proceedings confirmed all necessary procedures had been followed. She elaborated that the accused pleaded not guilty in accordance with section 229(1)-(4) of the Criminal Procedure Act (CPA). In such instances, the prosecution is obligated to call witnesses to substantiate the charges, and these witnesses must be subjected to cross-examination, with their statements duly recorded by the court. She noted that after the Republic concluded its case, the court, as per section 230 of the CPA, was required to assess whether a prima facie case had been established. If such a case was established, the accused would then be called upon to present a defence. Given this, she argued that the first ground lacked merit and prayed for its dismissal. Addressing the second and third grounds of appeal jointly, Ms Dotto contended that the charge against the accused was properly instituted and supported by sufficient evidence from the witnesses presented by the prosecution. She dismissed the appellant's assertions as hearsay, e emphasizing that no evidence was provided to support them, making them an afterthought. She highlighted that the appellant had not raised these claims in his testimony, as seen on page 38 of the proceedings. Relying on Section 3(2) of the Evidence Act, she maintained that the prosecution had proved its case

through six witnesses. She detailed how Page 5 of 16 the first prosecution witness established custody of the exhibits, as recorded on page 13, where an exhibit was admitted into evidence on 09/09/2024. The second witness, the owner of the motorcycle, testified regarding its purchase and tendered the blue card and sale agreement, which were admitted as exhibit M2. Ms. Dotto further elaborated that PW3 testified about the appellant's history of theft and identified the appellant leaving with the motorcycle. PW4 apprehended the appellant in Nzega and seized the motorcycle, presenting a certificate of seizure that was admitted without objection. She cited the case of Nyerere Nyague vs Republic (Criminal Appeal Case No. 67 of 2010) [2012] TZCA 103 (21 May 2012), which established that failure to cross-examine a witness implied acceptance of their testimony. PW5 confirmed the seizure and identification of exhibit M1, while PW6, who arrested the appellant, testified that the appellant confessed to stealing the motorcycle in Runzewe. Ms Dotto emphasised that this evidence proved the prosecution's case beyond a reasonable doubt, thereby justifying the conviction. She also noted that the appellant had been afforded the opportunity to cross-examine the witnesses. Accordingly, she prayed for the dismissal of these grounds of appeal. Regarding the fourth ground, Ms. Dotto acknowledged that

the appellant's testimony had not been considered in the judgment. She admitted that this omission constituted a denial of the right to be heard, as established in Anthony Jeremiah Sorya vs Republic (Criminal Page 6 of 16 Appeal No. 52 of 2019) [2020] TZCA 294 (15 June 2020). However, she argued that the appellant's testimony did not undermine the evidence presented by the prosecution. She requested the Court to independently evaluate the evidence in accordance with the principles stated in Mussa Jumanne Mtandika vs Republic (Criminal Appeal No. 349 of 2018) [2019] TZCA 330 (27 September 2019). Despite this, she prayed for the dismissal of the fourth ground. Finally, addressing the fifth ground, Ms. Dotto argued that the judgment met the requirements of Section 312 of the CPA. While she conceded that the sentence did not explicitly state whether the appellant was convicted, she pointed out that the proceedings recorded that the appellant was sentenced to five years, as reflected on page 41. She contended that this omission was curable under Section 388 of the CPA and did not prejudice the appellant's rights. She, therefore, prayed for the dismissal of the fifth ground as well. In rejoinder, the appellant reiterated that he had nothing further to add. Having considered the grounds of appeal and the submissions made in support thereof, the central issue for determination is

whether the appeal has merit. In resolving this issue, I will address each ground of appeal accordingly. Regarding the first ground of appeal, it is a fundamental principle of criminal justice that when an accused person pleads not guilty to the Page 7 of 16 offence charged, the burden of proof squarely rests upon the prosecution to establish the guilt of the accused beyond a reasonable doubt. Section 3(2) of the Evidence Act, Cap 6 R.E. 2019, requires that any fact in issue or relevant fact must be proved by the party who asserts it. Consequently, the accused is entitled to a full and impartial trial of all the facts in issue. In the case of Hadija Yusto Mgonja & Another vs Republic (Criminal Appeal No. 282 of 2011) [2013] TZCA 357 (12 March 2013), the Court of Appeal of Tanzania, with approval, referred the case of Masiki Sosan and another v Uganda, Criminal Appeal No. 7 of 2002, (CAU), where it was stated that: "The law is now settled that in a case where the accused pleads not guilty, he or she is entitled to a full trial of all the facts in issue." [Emphasis supplied] In the present case, on 7 October 2024, the appellant was brought before the trial court for the first time to answer the charges levelled against him. Upon being read the charge, the appellant pleaded not guilty, and the trial court duly entered a plea of not guilty. At this juncture, however, I find the

first ground of appeal lacking in merit. The procedural requirements do not obligate the trial court to inquire into the reasons behind the appellant's plea of not guilty. Rather, once a not-guilty plea is entered, the duty of the court is to afford a fair trial and ensure that the prosecution proves the case beyond a reasonable doubt. The appellant's plea of not guilty, in itself, does not place any obligation on the court to Page 8 of 16 question or investigate the reasons behind it. The focus remains on whether the prosecution has fulfilled its duty to prove every element of the offence charged. Herein, after a plea of not guilty was entered, the matter then proceeded to a full trial, during which the prosecution called a total of six witnesses to establish the case against the appellant. Upon the closure of the prosecution's case on 30 January 2025, the trial court invited the appellant to present his defence. The appellant, being the sole defence witness, testified on the same day and subsequently closed his defence. Therefore, the trial court complied with the procedural requirements and duly heard both parties in terms of sections 229 and 231 of the CPA, as rightly argued by Ms. Dotto. I, therefore, proceed to dismiss it. This brings me to the fourth ground of appeal, in which the appellant contends that his defence was not duly considered by the trial court.

This contention was supported by Ms Dotto. It is the position of the law that failure to consider the defence witness implies that the appellant was not heard. In the case of Hussein Idd and Another v Republic 1986 TLR 166 (CA), it was held that: “ It was a serious misdirection on the part of the trial judge to deal with the prosecution evidence on its own and arrive at the conclusion that it was true and credible without considering the defence evidence” [Emphasis supplied] Further, in the case of Anthony Jeremiah Sorya vs Republic (supra), it was stated that: Page 9 of 16 "…………failure to consider the appellant's defence is an issue of law with the constitutional significance of denial of the appellant's right to be heard.” Considering that the trial court did not afford the appellant's defence its due weight, it is the duty of this Court, as the first appellate court, to subject the entire evidence to a fresh and exhaustive evaluation. In doing so, this Court is obligated to reexamine the evidence presented by the appellant during his defence and independently assess its credibility and probative value while drawing its own conclusions on the matter. It was further stated in the case of Anthony Jeremiah Sorya vs Republic (supra) that: "We think on the issue of failure to consider appellant's defence, which was raised as a distinct ground of appeal, the High Court should have

lived up to its duty to subject the appellant's evidence to a fresh re-evaluation and come to first appellate own conclusion." [Emphasis supplied] In the present case, the learned trial magistrate, upon analysing the prosecution's evidence, concluded that the elements of the offence of stealing were duly proved. However, in reaching this conclusion, he entirely disregarded the testimony of the appellant and made no reference whatsoever to the defence evidence in his judgment. It is important to emphasize that the trial court was not only duty-bound to hear both parties but also obligated to evaluate and weigh the evidence presented from both sides. Since the trial court failed in this regard, I find it Page 10 of 16 necessary to independently assess and consider the defence evidence accordingly. In his defence, the appellant asserted that he had hired the motorcycle, identified as Exhibit M1, from PW3 for a journey to Nzega. He explained that he and PW3 had been long-time friends. The appellant further claimed that, on the day of his arrest, he was apprehended at Uswule after contacting the motorcycle's owner, only to be unexpectedly accused of theft. This testimony indicates that the appellant was familiar with the said exhibit, although he maintained that he had hired it from PW3. However, PW3, in his testimony, which remained unchallenged by the appellant, contended that the

motorcycle actually belonged to PW2. PW3 further testified that he merely facilitated the appellant's use of PW2's motorcycle for travel to Nampangwe Village rather than Nzega. Moreover, PW2 gave a detailed account of how he acquired the motorcycle and presented documentary evidence in support thereof, namely Exhibit M2, comprising the motorcycle card and the sale agreement. Additionally, PW5 and PW6 corroborated the testimonies of PW2 and PW3 by confirming that they arrested the appellant in Nzega while in possession of the said motorcycle, which was suspected to have been stolen. They further stated that upon interrogation, the appellant allegedly confessed to having stolen the motorcycle from Runzewe. It is noteworthy that the appellant did not dispute these facts during the trial. Page 11 of 16 The defence advanced by the appellant fails to dislodge the weight of the prosecution's evidence, particularly in view of his failure to cross- examine the witnesses on critical aspects, including ownership, the circumstances of his arrest, and the confessions made before PW5 and PW6. Notably, PW3, whom the appellant claimed to be the owner, unequivocally stated that the motorcycle belonged to PW2. PW2 had entrusted PW3 to transport the appellant to Nampangwe Village. However, upon arrival, the appellant fled with the motorcycle, abandoning PW2 at the scene. The prosecution's

evidence clearly demonstrates that the appellant acted with the intent to steal the motorcycle, as defined under Section 258 of the Penal Code. According to this provision, stealing involves the unlawful taking of another person's property with the intention of permanently depriving the owner of it. In the present case, the appellant took the motorcycle without the consent of the rightful owner (PW2) by fleeing with it after being lawfully transported. His act of escaping with the motorcycle manifests a clear intention to permanently deprive PW2 of his property, as he made no effort to return it or communicate his whereabouts. Furthermore, the appellant's subsequent arrest while in possession of the motorcycle further indicates his intention to treat the property as his own, thereby disregarding the ownership rights of PW2. Additionally, the appellant failed to establish any legitimate claim of right to the motorcycle, as he Page 12 of 16 did not dispute PW2's ownership during cross-examination, nor did he present credible evidence to substantiate his alleged hiring arrangement with PW3. Moreover, the appellant's confession before PW5 and PW6, in which he admitted to stealing the motorcycle from Runzewe in Bukombe District, significantly bolsters the prosecution's case. His failure to challenge or rebut this confession during the trial further reinforces the credibility of the

prosecution's version of events and constitutes an implied admission on the part of the appellant. See the cases of Cyprian Athanas Kibogoya vs Republic (Criminal Appeal No. 88 of 1992) [1992] TZCA 35 (17 August 1992), Paul Yustus Nchia vs National Executive Secretary Chama cha Mapinduzi and Another (Civil Appeal No. 85 of 2005) [2006] TZCA 266 (12 October 2006), and Nyerere Nyague vs Republic (supra), where it was held that failure to cross-examine on crucial aspects of evidence amounts to an acceptance of that evidence as true. Specifically, in the case of Paul Yustus Nchia vs National Executive Secretary Chama cha Mapinduzi and Another, it was observed that: "...…….that is the only uncontradicted evidence on the record which we accept. The learned authors of Blackstone's Criminal Practice (1 992) have this to say at paragraph F7.4 at page 1871 - "A party who fails to cross-examine a witness upon a particular matter in respect of which it is proposed to contradict him or impeach his credit by calling other witnesses tacitly accepts the truth of the witness's evidence in chief on that matter and Page 13 of 16 will not thereafter be entitled to invite the jury to disbelieve him in that regard. The proper course is to challenge the witness while he is in the witness - box or, at any rate, to make it plain to him at that stage that his evidence is not accepted." [Emphasis

supplied] Considering the unchallenged and consistent prosecution evidence, coupled with the glaring inconsistencies and lack of credibility in the appellant's defence, it is evident that the defence offered does not raise reasonable doubt. This analysis, therefore, conclusively determines the second and third grounds of appeal. Accordingly, I am satisfied that the prosecution has successfully established all the essential elements of the offence of stealing under Section 258 of the Penal Code. In the circumstances, I proceed to dismiss the second, third, and fourth grounds of appeal. Regarding the last ground of appeal, wherein the appellant contends that the trial magistrate convicted him on an incomplete judgment due to the trial court's failure to state the duration of the sentence, I find this argument to be misplaced. After convicting the appellant in accordance with section 312 of the Criminal Procedure Act (CPA), the trial court proceeded to sentence him during the proceedings held on 31 January 2025. Prior to sentencing, the appellant was invited to address the court in mitigation, and subsequently, the court pronounced a sentence of five (05) years' imprisonment. The learned magistrate, in delivering the sentence, recorded the following: Page 14 of 16 "ADHABU JOSEPH S/O MATHIAS KASAKUYO ni mshitakiwa ametiwa hatiani katika kosa kwanza, Wizi fungu la 258 (1) na 265

Sheria ya kanuni ya Adhabu Sura 16, Urekebu wa Sheria wa Mwaka 2022. Upande wa Jamhuri hauna kumbukumbu za jinai dhidi yake, lakini wameomba apate adhabu kali kwani kitendo alichokifanya ni kinyume cha sheria za nchi. Mshitakiwa ameomba apunguziwe adhabu ukizingatia amekaa Mahabusu tangu Mwanzo wa kesi hadi leo hii siku ya hukumu. Kwa kuzingatia pande zote mbili katika maombi yao ninamhukumu mshitakiwa kama ifuatavyo: Kutumikia kifungo cha miaka mitano (5) gerezani.” This is translated into English as follows: "SENTENCE JOSEPH S/O MATHIAS KASAKUYO is the accused person who has been convicted of the first offence, theft, contrary to sections 258(1) and 265 of the Penal Code, Chapter 16, Revised Laws of 2022. The prosecution has no previous criminal record against him, but they have requested a severe punishment, arguing that the act committed is contrary to the laws of the country. The accused has pleaded for a lenient sentence, considering that he has been in remand custody from the beginning of the case until today, the date of judgment. Taking into account the submissions of both sides, I hereby sentence the accused as follows: To serve a prison term of five (5) years." This excerpt clearly and explicitly states the appellant's sentence of five (5) years' imprisonment. Therefore, the appellant cannot now claim that the judgment was incomplete or that the trial court failed to

specify the duration of his sentence. The record of proceedings is clear, and the appellant's assertion on this matter is without merit, as he was duly Page 15 of 16 convicted and sentenced in accordance with section 312(2) of the CPA, which contradicts his claim. In light of this, I dismiss this ground of appeal. In conclusion, I find no reason to interfere with the factual findings made by the trial court. After careful consideration, I am settled that this appeal lacks merit. Consequently, I hereby dismiss it in its entirety. It is so ordered. Right to appeal explained. DATED at GEITA this 21st day of March 2025. G.V. MWAKAPEJE

JUDGE Page 16 of 16