20110720 TZHC Dar es Salaam

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IN THE HIGH COURT OF TANZANIA

AT ARUSHA CRIMINAL APPEAL NO. 36 OF 2010 (C/F District Court of Babati at Babati in Criminal Case No. 115/2008)

BETWEEN MARTINE KISALI ....................................................... APPELLANT AND THE REPUBLIC ....................................................... RESPONDENT Date of last Order: 30/05/2011 :"--_~Date of Judgment: 20/07/2011

JUDGMENT A.C. NYERERE, l The appellant herein being aggrieved by the judgment in Criminal Case No. 115 of 2008 hereby filed the present appeal on five grounds of appeal; 1. That, the learned trial Magistrate grossly erred in law and in fact directly by adding a witness through wrong provision of the law.

2. That, the learned trial Magistrate grossly erred in law and fact in by· not rejecting the evidence of PW3 as he was ·added as additional witness illegally. 1 n lj !'• i I I ,I 11 I i 1, i ij ,, j : l :I /I 'j ii '1I II ,,i· ) I ;1 .' 1 ·1 jl './ II II i\ .~ ·i ; \ :.,1 'I 'i 'l ~ ., :iif ,1 ,, I ' 't I : :! '\ i) i l 1 11 "ii !! l 1 l :1 4 Ii ! !l l il .:1 i j r l_ :l I l ' ·! l i :i I I l ...., ~{~ ru h 3. That, the learned trial Magistrate grossly erred in law and in fact by believing that a proper search was conducted something that wasn't true.

4. That, the learned trial Magistrate grossly erred in law and in fact by convicting the appellant on three cases namely Criminal Case No. 113/2008, 114/2008 and 115/2008 which were the same.

5. That, the learned trial Magistrate grossly erred in law and in fact for ignoring the sworn defence evidence which was too strong for the weak prosecution evidence. In this appeal, the appellant appeared in person while th~ respondent was ~ represented by Mr. Daniel Marari learned State Attorney. Arguing for the appeal, the appellant briefly prayed for this Court to consider his five grounds of appeal and deliver judgment. For the Republic, learned State Attorney Marari submitted that the respondent was in support of the appeal for a number of reasons. Firstly; the learned State Attorney stated that the appellant was charged with the offence of stealing contrary to section 265 of the Penal Code, [CAP. 16 R.E, 2002] but the appellant ended up 'been convicted of receiving or retaining stolen property contrary to section 311(1) of the Penal Code (supra) and sentenced of 5 years. Further, the learned State Attorney submitted in support of the appeal that the conviction by the trial Court based on the evidence in respect of the 2 \ l alleged stolen properties from Tarangire National Park and those found in possession of the appellant/accused person despite of the inconsistencies in evidence and surprisingly that such differed testimonies were testified by eye witnesses. In respect of the inconsistencies of the stolen properties, the learned State Attorney referred this Court to

the case of NASSORO MOHAMED vs. R, H.C.D 446 where the Court held at page 446; "The proper identification of property in Court is that the complainant should describe the property before it is shown to him so that when it is eventually tendered and the description · confirmed it can be clear to the Court that the identification was impeccable or not". This Court has gone through both the respective submissions by the appellant and the learned State Attorney for the Republic and has the following to say. In the first place, it's true as properly submitted by the \. learned State Attorney that the appellant was charged with the offence of stealing contrary to section 265 of the Penal Code, [CAP. 16 R.E, 2002] but ended up been convicted of receiving or retaining stolen property contrary to section 311(1) of the Penal Code (supra). Had the charge, trial and evidence been proper; the sentence could also be proper as the section under which the appellant was convicted though not charged is carries with it a cognate offence to the charged one. Cognate 3 -A-fN ' ' offences were dealt with in the appeal case of ROBERT NECHOR AND ANOTHER vs. REPUBLIC [1951] 18 E.A.C.A 171 where the East African Court of Appeal had the following to state at page 174 that; "Where an accused is charged with an offence, he may be convicted of a minor offence, although not charged with it. If that minor

offence is of cognate character wit, of the same genes and speeches". But in the present matter as rightly submitted by learned State Attorney Marari, an offence of theft or found in possession of a property alleged to have been stolen basically carries with it the offence of theft. In proving an ·r - - - offence of theft amongst, one should certainly prove that he is· the owner of the alleged stolen property. From that, since the Court is in between as an umpire who knows nothing unless properly informed for it just to weigh out credibility of the evidence adduced and or the properties subjected for the trial; then certainty of description of such properties to be far from doubts is a fundamental element in offences relating to properties. From the above, it is certain that the criminal charge against the appellant · was not proved beyond any reasonable doubt which is the standard of proof in criminal trials. Reasons thereof; I hereby allow the appeal by quashing the conviction by the trial Court and set aside the sentence and in 4 ' ' ' lieu of that, I order for immediate release of the appellant from prison unless otherwise lawful held. It is so ordered. A.C. NYERERE

JUDGE 20/07/2011 Judgment delivered in chambers this 20 th day of July, 2011 in the presence of the appellant in person and in the presence of Mr. Matagane learned State Attorney for the Republic. ~ A.C. NYERERE

JUDGE 20/07/2011 5 .j ,· . ' .,' I'. I ' ( ·' '' 1