19760920 TZHC Arusha

IN THE HIGH COURT OF TANZANIA AT ARUSHA

APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 252 OF 1975 ORIGINAL CRIMINAL CASE NO. 240 OF 1974

OF THE DISTRICT COURT OF MASAI DISTRICT COURT MONDULI Before CiW. Kahema ------- ------------ District Magistrate LETUMA MENGADYEKI ------ ----------------- APPELLANT (1st Accused) versus THE REPUBLIC ---- -------- ----- RESPONDENT (Original Proseutor) CHARGE: Cattle theft c/ss 265 and 268 of the Penal Code. J U 0 G ME N T Nyalali, J. The appellant, Letuma s/o Mengadyeki, was jointly charged and convicted with two others namely Kipanga Sepere and Logolyeki Safari in the district court of !jnduli district with the offence of Cattle th:ft c/ss 265 and 268 of the Penal Code and sentenced to 5 years jail underthe Minimum Sentences Act 1972. 6 others who had been jointly charged with them were acquitted on a no case to answer.. Now Letuma 5/0 Mengadyeki is appealing to this Court against the conviction. Mr. Kinabo, Learned State Attorney, does not support the conviction. As rightly pointed out by him the case depends entirely on identification of the thieves and the remains of the animal where the appellant and his colleagues were found feasting on meat. P.W 2 who claims to have seen the thieves testified that as it was midnight when the thieves came, he was not able to recognize them. Later the appe1lantis companions were found feasting on some meat the following day. A torm up skin, so.ie ribs and a horn were picked up and these were the exhibits produced at the trial. The skin

had no special identity mark and smilarly the horn. As to the ribs, P.W 2 and P.W 3 who were in the search party for the stolen : cattle, claimed that the ribs must have been from one of their stolen cattle since their cattle were fatter than Masai cattle. wl.l, this is highly speculative, since there was no evidence to suggest that there was not a single Masai cow in the area which had fat ribs. Obviously there was no evidence to support the conviction which I must now quash. But since the two otheri persons, namely Kipanga Sepere and Logelyeki Safari were convicted on the same grounds, justice demands that, I should exercise my revisional jurisdiction and also quash their convictionst although they have not appealed. The conviction on Letuma Mengadyeki who is the appellant in this case, is now quashed under my appellate jurisdiction, and the conviction on Kipanqa Sepere and Logelyeki Safari is also now quashed under my revisional jurisdiction, and the sentences are set Easide with directions that all three 'be released from jail forthwith unless detained therein for other lawful cause. F.L. NYALALI, JUDGE judgment delivered this day of 20th September, 1976 in open court at Arusha in the presence of Mr. Koshurna, State Attorney and absence of appellant not wishing to appear. F.L. NYALALI, CGE. FLN /GKK