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IN TEE HIGH COURT OF TANZANIA I I AT DODOMk

APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 30/73 ORIGINAL CRIMINAL CASE NO. 483 OF 1972 OF TEE DISTRICT COURT OF IRING-A DISTRICT AT IINGA Before T. N. I. Ngitami ................... ....District Hagi,strate MAYASA S/O CHORIBIa.oa.........a.ao,a.à .........ppellant (Original Accused) versus THE REPUBLIC . a aa•aaaa a a a e . . a a 000000 • . . aRespoi.dent . (Original Prosecutor) 0 harge: Stealing by finding' cs 258 (4) and 265 of the Penal ode Cap. 16 of the laws.

J U D G E N E N T 1 KWIKIMA. AG . J. The appellant was at first charged with stealing the starter motor the property of the 'ast African Railways Corporation. In due course the court learned, through the appellant himself, that he had come by the motor spare (Component) by finding. The charge was redrawn at the courts behest. The appellant then stood charged with theft by finding to which charge the court took his reply to be an admission of the charge. 'hen the charge of stealing by finding was read to the appellant, he replied: It is true." Such reply has been consistently held to be equivocal (e.g. R. v. RAJAB AYtJB 1972 HCD 172) The facts which the prosecutor adduced in support of the charge, even though certified as correct by the appellant, did not remedy the equivocal nature of the plea. They did not reveal the offence of theft by finding in all its ingredients. They went thus: Between the months of December, 1971 and March, 1972 two self-starters were reported by Railway Authority (sic) to have been stolen by an unknown person. Investigations were carried out but nothing was recovered. Sometime in March 1972 the accused found a motor vehicle self-starter of Leyland somewhere in Ifunda within the .iistrict of Iringa. He picked up the self-starter and kept it to himself. It was until 5th August 1972 when the self-starter was /2 * - p /2 found in Kilimanjarostore, Iringa

by Detectiye Constable Bukuku and Detective Sergent Saidi. The Starter was marked E.AOROCO The owner of the Kilimajaro store was asked about the starter and he said that the starter was brDught to him by the accused The accused was ...... arrested......(He) was asked as to how he came to the possession of the starter and he said that he found it in Ifunda sometime in March 1972. The accused was asked if he knew that the starter belonged to EOAOROC. Iringa but he said nothing in reply. So the accused was charged accordingly ............. . .... •" The learned cousel for the appellant assailed the conviction on two grounds0 Firstly the learned cousel very rightly pointed out that the appellant' words "It is true0" did not constitute an unequivocal plea, and secondly, that the appellant was neither shown to have converted the self-starter to his use nor to have been literate enough to identify the mark EOAOROC. On this limb of his argument the learned cousel relied on the case of DUTT v R 1959 E.A. 325 decided by the East A±-rican Court mf Appeal and therefore bringing upon the Tan z ania High Court. The decision in that case is consicely summarised in the head note which reads: "The appellant was charged with stealing a gold bracelet and in answer to the charge he said "I found it and sold it" The trial magistrate without any explanation of the nature of the charge or of the

circumstances in which a person finding an object and disposing of it is guilty of stealing, recorded a plea of guilty and convicted the appellant. The appellant's appeal .to the Supreme Court (.f Kenya) was dismissed on the ground that it was not incumbent upon the tia1 magistrate to explain to the appellant the effect of s. 263(4) of the Penal code (of Kenya) or to ask him whether he knew the owner was and whether he believed that the owner could be found. Held (1) in view of the provisions s.263(4) of the Penal Code the appellant's words...0 were not an unrequiv.cal plea .f' . guilty and it was incumbent upon the trial magistrate to explain to the appellant the effects of s,263L4) or to ask him whether he knew who the owner was and whether he ielieved that the owner would be found. (11) the effect of s.263(4) is that a person finding and selling lost article does not necessarily convert it fraudulencly and, therefore, des not necessarily steal it, unless at the time of zonvei.ion he either knows who its owner is or has no reasonable ground for believing that the owner cannot be discovered". The appeal was in that case allowed. The facts of that case are not altogether dissmilar to the facts in the present case was not apprised of the circumstances which would render his finding culpable and these were firstly that he knew the self-starter to belong to the East African

Railways Corporation or that he had reasonable ground to believe that the owner could be discovered. It is a sad fact, judici- ally noticeable, that Tanzanians as a whole are illiterate and even with the current adult literacy drive, it is sanguine to expect a "Kisomo Chenye Manufaa graduate to tell what EOAOR.C, stands for. The Piosecution did not even attempt to show that the appellant converted the self-starter. It is thus impossible for a court of law to say with any degree of certainty that the appellant kept the self- starter animus furandl. In his submission the learned cousel for the republic seemed to be aware of the weakness in the appellant's conviction when he urged for a retrial.. It is feared however,.. that in view of the very long time that has ensut'ed since the appellant was gaoled on 29th 12/72, such order would be manifestly unjUst. to him. The ten manths he has - - been in jail cannot be said to be his due desert. One only wishes the appellant could be compensanted for being gaoled in a manner inconsistent with justice and without his case beeing inquired into carefully. Accord- ingly the appeal succeds and it is allowed in its entirety. The appellant is to be released forthwith unles on some lawful consideration he is being otherwise held. M.H.A. KWIKIMA AG. JUDGE