KELVIN BWIRE 0001

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

DAR ES SALAAM SUB REGISTRY

AT DAR ES SALAAM DC CRIMINAL APPEAL NO. 15338 OF 2024 (Originating from Criminal Appeal No. 7966 of 2024 in the District Court of Kibaha at Kibaha Arising from Criminal Case No. 128 of 2023 in the Primary Court of Kibaha District at Mkuza) KELVIN BENARD BWIRE ....................................................... APPELLANT

VERSUS SALMA RAMADHANI MSENGI .............................................. RESPONDENT

JUDGEMENT Date of Last Order: 17.09.2024 Date of Judgment: 20.11.2024 NGUNYALE, J. The respondent Salma Ramadhani Msengi was charged at Mkuza Primary Court for the offence of theft contrary to Section 258 (1) and 265 of the Penal Code Cap 16 R.E 2022. It was alleged that the respondent on 28a' March 2023 at around 13:40 hours at Kongowe within Kibaha District and Region of Pwani did steal Solar system from Zola Company worth 2,458,000/= the property of the appellant Kelvin Benard Bwire contrary to law. The charge was read over and explained to the respondent on 18th October 2023 who entered a plea of not guilty. Upon a plea of not guilty, the trial court heard the prosecution case and on ruling whether the respondent has a case to answer, the trial court was satisfied that the act of the respondent to move the solar system from one place to another within the same house did not amount to theft because there was no evil intention or asportation hence the respondent was acquitted for having no case to answer. The ruling of the trial court acquitting the respondent strongly aggrieved the appellant. He immediately preferred the first appeal (Criminal Appeal No. 7966 of 2024) founded on three grounds of appeal one, the trial primary court Magistrate erred in law and facts by failing to analyse properly and scrutinize the testimony adduced by the prosecution side on the offence

committed by the respondent hence pronounced unfair decision two, that the trial Magistrate erred in law for failure to properly direct her mind on the law and principles regarding prima facie case and the evidence that was placed before her and three, the trial Magistrate with the evidence that was placed by prosecution side while composing the decision. The first appellate court considered the grounds of appeal guided by the argument of the parties and law and ended by confirming the decision of the trial court by dismissing the appeal. It was the view of the first appellate court that the prosecution case did not establish the offence of stealing with all its ingredients, the decision of the trial court remained intact. Still aggrieved, the appellant marched to this court armed with the following grounds of appeal aiming to challenge the decision of the courts below; - 1. That the appellate Magistrate erred in law and fact for failure to evaluate and analyse the prosecution evidence adduced before the trial court. Hence, pronounced unfair decision.

2. That the appellate Magistrate erred in law by holding that all the exhibits admitted in the trial court were wrongly admitted by the trial court while the said exhibits were rightly admitted by the trial court as it is shown in the trial court proceedings. 3- That the appellate Magistrate erred in law and facts by expunging the received and admitted exhibits and relying on the oral testimony of the prosecution witness only.

4. That the appellate Magistrate erred in law for failure to properly direct her mind on the law and principles regarding prima facie case and the evidence that was placed before the trial court.

5. That the two lower courts erred in law and facts by failing to consider the paragraph 8 in exhibit E together with the evidence that was placed by prosecution side during the trial at the trial court.

6. That the two lower courts erred in law and facts by holding that the appellant and the respondent lived as husband and wife, while they were separated since 2018.

7. That, the appellate Magistrate erred in law and fact by holding that the appellant failed to prove the ill motive in the offence of stealing. The appeal was heard by way of written submission, I real appreciate the cooperation experienced from the parties and their timely filing of their respective submission. The appellant was the first to submit in support of his grounds of appeal, in his submission in support of the first ground of appeal he stated that the first appellate Magistrate failed to properly analyze and evaluate the evidence against the offence of stealing committed by the respondent hence he reached to erroneous decision of upholding the decision of the trial court that the respondent had no case to answer. It was wrong to say that there was not evil intention of moving the solar plant from where the owner kept to another place amounted to stealing. He referred the court to the case of Salum Mshana versus The Republic, Criminal Appeal No. 180 of 2023 High Court of Tanzania at Dar es Salaam (unreported) where it was held that; - " ...the necessary ingredients of the offence of stealing are that there was taking of movable property, with the dishonest intention, out of :W the owners' possession and movement of thR property to take it a way. m The 2-d and 3'd grounds of appeal the appellant argued the same jointly that the trial court erred to expunge the

exhibits which were dully admitted for reason that they were not marked. It was the duty of the trial court to mark exhibits because nothing can be done by the appellant. Tbe exhibits were expunged without affording the parties the right to be heard contrary to rules of fair hearing. He referred the court to the case of Abbas Sherally and Another versus Abdul S. H. M Fazalboy, Civil Application No. 33 of 2002 (unreported) where the Court of Appeal held that: - "The right of a party to be heard before adverse action is taken against such party has been stated and emphasized by courts in numerous decisions. That right is so basic that a decision which is reached had the party been heard, because the violation is considered to be a breach of natura justice." Tbe appellant insisted that it was not proper for the appellate Magistrate to raise the issue as to admissibility of the exhibits which were already admitted as evidence before the trial court for the reason that they were not marked. He prayed the court to do justice. In respect of the 4th ground of appeal regarding adhering to principles regarding to prima facie case the appellant submitted that it is trite law that, before the accused person is called upon to make his defence, the prosecution side must establish at lowest a prima facie case. He referred the court to the case of Sunderji versus Republic (1971) HCD 216 where

it was held that: - "It may not be easy to define what is meant by a prima-facie, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence. " He insisted that the appellate Magistrate failed to properly direct her mind on the law regarding prima facie case and evidence placed before her. ne prosecution case established all the ingredients of the offence of stealing. He cited the case of The DPP versus Philipo Joseph Ntonda, Criminal Appeal No. 217 of 2020 the Court of Appeal held that: "After the prosecution had closed its case, the law requires the trial judge, to determine whether the evidence adduce by the prosecution witnesses sufficiently established the charged offence which could have warranted the conviction of the accused person, in case he does not put up his defence... it is to be noted that the law uses the words "There was no evidence that the accused committed the offence" But to our ]understanding such words do not mean that 'no evidence at all’ but rather "no evidence on which a reasonable court, properly directing its mind, could convict the accused person." The 5th ground of appeal that the two courts below erred to consider paragraph 8 of exhibit E together with the evidence that was placed by prosecution sided during the trial the appellant

submitted that the evidence during trial established )lar plant agreement contained terms that the solar should not be removed or moved from the place it was originally fixed. Tbe trial Magistrate did not consider such term of the agreement. The respondent moved the system from its original place. In the 6th ground of appeal, the appellant complained that the two lower courts erred in law and facts by holding that the appellant and the respondent lived as husband and wife while they were under separation since 2018. He submitted that this is not matrimonial case so to discuss the issue of living as husband and wife in the same roof. Still their relationship does not exonerate the respondent from being a criminal. In the last ground of appeal, the appellant complained that the trial Magistrate erred in law and fact by holding that the appellant failed to prove the ill motive in the offence of stealing. He insisted that the prosecution case proved evil intention of the respondent which constitutes the offence of stealing contrary to Section 258 and 265 of the Penal Code. He concluded by inviting the court to allow the appeal. Tbe respondent in her part started her submission by stating that the trial court and the first appellant court were correct to rule that the respondent had no case to answer on the offence of stealing. The trial court had justification to dismiss the charge

and acquit the respondent. M The evidence lined up by the appellant before the trial court could not establish asportation which require proof of mens rea. The trial court correctly analyzed and evaluated the evidence before it thus it arrived at the right decision of upholding the trial court decision of dismissing the charge and acquitt:ing the respondent. As husband and wife everything at their home were under the care of the respondent since 2019 when the appellant deserted the matrimonial home leaving the respondent and their beloved son helpless. That, it is trite law that the one who alleges must prove the allegation in accordance with Section 110 (2) of The Evidence Act Cap 6 R.E 2019. The appellant failed to prove how the wife living under the roof of the matrimonial home can steal simply by taking the solar plant from one place to another place within the same matrimonial home constitute to constitute stealing. The respondent invited the court to refer to the decision of the Court of Appeal of Tanzania in the case of Abdul Karim Haji versus Raymond Nchimbi and Joseph (2006) TLR 419 where it was held that: - "It is elementary principle that he who alleges is the one responsible to prove his allegations" The appellant failed to prove beyond reasonable doubt that the respondent did steal the solar plant simply by taking it from one place of the matrimonial home and

keeping it in anoth9F place within the same matrimonial house. In criminal justice proof is beyond all reasonable doubt. ne 2-d and 3’d ground of appeal she also argued them jointly as it was done by the appellant. She submitted that the first appellate court acted within the parameters of the law to expunge the exhibits from the record. The exhibits had nothing about either actus reus which refer to asportation or mens rea which requires prove of ill motive as rightly held in the case of Christian Mbunda vs Republic. The 4th ground of appeal on the complaint that the Magistrate did not direct himself to the principles of prima facie case she submitted that the trial Magistrate correctly adhered to the principles regarding prima facie case. The courts below properly considered the law in answering to the issue in controversy. On the 5th grounds of appeal on the complaint about exhibit No. E the respondent submitted that the court properly considered the exhibit No. E together with evidence and found that it did not carry any weight in respect of the charge of stealing. The court was correct to rule that the respondent has no case to answer. About the 6th ground of appeal that the Magistrate erred by holding that the appellant and the respondent lived as husband and wife. The respondent submitted that the appellant and the respondent are husband and wife but the only problem is

that the appellant deserted the matrimonial home since 2019 leaving the respondent living with their only son in the matrimonial home located at Mwambisi Street, Kongowe Ward, Kibaha District in Coastal Region. The allegations that the respondent did broke their house is wrong. Both have equal access to the matrimonial home. The last ground of appeal about proof of ill motive it was the view of the respondent that the appellant failed to prove iII motive on the alleged theft she referred back the court to the principles of actus reus which refer to asportation and mens rea which requires prove of ill motive as ruled in the case of Christian Mbunda versus Republic (supra). The prosecution failed to prove the existence of ill motive. She prayed the court to dismiss the appeal for lack of merit. After making a keen reference to the submission of the parties, I will proceed to determine the issue; whether the first appellate court was right to upheld the verdict of no case to answer which was pronounced by the trial court. In answering the lst ground of appeal, I wish to be guided by the long- time principle that the second appellate court will not interfere with the are good reasons to do so. This has been a correct position in a number of authorities. In the case of Bomu Mohamed Vs Hamisi Amiri, Civil Appeal No. 99 of 2018 (unreported), the Court of Appeal held that; " We are

very alive to a well-established rule of practice that on a second appeal, the Court will not normally interfere with a concurrent finding of fact of courts below unless there are sufficient grounds to do so. These grounds will be things like misdirection, non-directions or misapprehension of the evidence." The same position has been reiterated by the court of appeal in Iddi Hamisi versus Republic, Criminal Appeal No. 119 of 2022. In the case at hand, the first appellate court considered the evidence before the trial court and noted that the important ingredient of stealing was not established in evidence as correctly ruled by the trial Magistrate. Tbe appellate Magistrate found that trial Magistrate considered adequately the ingredients of the offence of stealing as provided in Section 258 (1) of the Penal Code Cap 16 R. E 2022 and entered the verdict. The provision provides; "A person who fraudulently and without claim of right takes anything capable of being stolen, or fraudulently converts to the use of any person other than the general or special owner thereof anything capable of being stolen, steals that thing." (Emphasis added.) The trial court said in part in its judgment 'mahakama hii katika kutizama kiina cha kosa la wizi iII kuthibitisha wizi huo ni kwamba mshitakiwa alitakiwa awe na nia ovu ya kutoa solar hiyo kutoka sebuleni Kwenda chumbani... lakini mlalamikaji

hajaonesha nia ovu ya mshitakiwa ya kuiba Solar hiyo, kielelezo kilicholetwa Mahakamani kimeletwa kama Solar na hakijabadilika muonekano wake na hakikuwa kwenye miliki ya mtu mwingine iIa ndani ya nyumba hiyo wanayoishi...’ This finding of the trial court was upheld by the first appellate court that theft was not established because the important ingredient of theft was not proved in evidence. The first appellate Magistrate considered at length the ingredients of the offence of stealing and ended with considered view that there was no evidence which revealed that the respondent did take the solar plant out of the possession of the owner with dishonest intention that is taking away or depriving the appellant of its use or ownership. In that view I am not ready to accept the argument of the appellant that there was stealing. There is no dispute that the solar plant was found inside that same house as testified by PW3. PW3 E 2530 D/SG Salehe said that the respondent told them that the said solar was not stolen, it was inside their house. She took them to a place where the same was kept. It is my considered view that the two courts below properly analyzed evidence and ended with proper findings of fact that the item was not stolen. At this stage I have no reason to interfere with their concurrent findings of fact. In the 2-d and 3'd grounds of appeal the appellant complaint is

about exhibits which were expunged from the court records without their being afforded an opportunity to be heard. From the outset I am in agreement with the appellant that the trial court erred to rule about the exhibits without affording them a right to be heard. Tbe position in Abbas Sherally and Another (supra) cited by the appellant is a correct position that natural justice is substantial. are fact that the exhibits were expunged without affording the parties an opportunity to be heard the remedy is to remit the records to the first appellate court for them to be reheard. Suppose the same is returned to the first appellate court for rehearing will it change the position that important ingredients of the offence were not established? I think no, instead it will attract the back- and-forth movement serving no ends of justice in the substance of this case. It is obvious from the record that, the findings of the two courts below were not based on those exhibits. Even exhibit E which are the terms of the agreement between the appellant and the supplier of the solar plant cannot change the fact that iII motive was not proved, the two court were satisfied that the said solar plant was just moved from one place of the house to another the fact which I am not ready to fault. In the fourth ground of appeal the appellant complain that the first appellate court failed to properly

direct its mind on the law and principles regarding prima facie case and the evidence that was placed before the trial Court. This ground of appeal will also not consume the precious time of the court because the first appellate court was very keen to consider the issue of prima facie case guided by evidence and law. Tbe verdict of no case to answer was well founded by the trial court and blessed by the first appellate court because there was no evidence to prove an essential element of the offence as it happened in this case. III motive was not proved against the respondent. The first appellate Magistrate correctly found that the evidence on record did not prove iII motive against the respondent. The trial Magistrate moved further to defined prima facie guided by the case of Sunderji versus Republic (supra). Also, in the case of DPP versus Philipo Joseph Ntonda, Criminal Appeal No. 217 of 2020 the court of appeal said that prima facie case means that the court must be satisfied that the evidence sufficiently establishes the charged offence to the extent of warranting conviction to the accused person in case he does not enter his defense or his defense raises no doubt to the prosecution case. In the case at hand the first appellate court was satisfied that prima facie case was not established because the important ii )f the offence was not established. I have no reason to

differ with the findings of the trial court that there was no evidence which established theft in its legal meaning. Even the case cited by the appellant is very clear that for stealing to be established the accused must take away the property. I am referring to the case of Salum Mshana (supra) which was relied by the appellant. Even the first appellate Magistrate considered the relevant of the very case in confirming the decision of the trial court. Therefore, the fourth ground of appeal is also dismissed. In the 5th ground of appeal, the appellant complain that paragraph 8 of Exhibit E was not considered. In short exhibit E is an agreement between the appellant and the company which sold the solar plant to the appellant’s home in a special loan program. The complaint about this exhibit cannot consume much time of the court because it has nothing to do with the missing element of the offence of stealing as discussed about. The ground is worth of being dismissed. The 6th ground of appeal the appellant complained that the two courts below erred to consider that the appellant and the respondent were living as husband and wife, while they were separated since 2018. The starting point is the content of the records of this case, from the record there is no dispute that the parties ieparation. Tbe fact that they were under separation does not mean that the house where the solar plant

was moved around ceases to be a matrimonial home because the parties are still dully married. There is no evidence that the marriage was legally dissolved, separation does not mean the two were under divorce status. In the same view, this court as the second appellant court cannot differ on the concurrent findings of fact of the courts below. In the same trend, this ground of appeal has no legal legs upon which to stand. The seventh ground of appeal the appellant complaint is based on the fact that the trial Magistrate erred in law and fact by holding that the appellant failed to prove the ill motive in the offence of stealing. From what has been discussed above, answering this ground of appeal will be as good as encouraging repetition unnecessarily. The trial court found that the ingredient of mens rea was not proved in evidence before the trial court as correctly answered in the first ground of appeal. I cannot at this stage start answering the same point. As I said before this as the second appellate court which is guided by the findings of the two courts below. If the two courts below did their job perfectly, then this court has no room to fault them. The courts are serious concerned with the guilty intent or guilty mind and nothing else. The CQurt takes caution to interfere with the findings of fact of the courts below provided they have adequately dealt with the evidence on record. See the cases of Emmanuel Mdendeni V. R, Criminal Appeal Criminal Appeal No. 86 of 2007, Musa Mwaikunda V. R, Criminal Appeal No. 174 of 2006, and Dickson Joseph Luyana, Criminal Appeal No. 1 of 2005 (all unreported) . Consequently, this appeal is bound to fail. It is hereby dismissed entirely for lack of merit. Order accordingly. Dated lar es aam 20th 2024 OR D. P

JUDGE Judgment deli' 20th d, of November, 2024 in presence of both parties in person.

OR

JUDGE 17