19750725 TZHC Dodoma

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IN THE HIGH COURT OF TANZANIA - -: • '. .• ATDODOMA "

APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO 103 OF 1974 ORIGIN'AL CRIMINPL CjSE NO 657 OF 1972

OF THE DISTRICT COURT OF DODOMA DISTRICT AT DODOMA Before B.P. MOShi. . Resident Magistrate •MGONBA'S/OUSAKá'.' '. .Appellant (Original Accused) r su s THE REPUBLIC. ' •' • .Respondent (Original Prosecutor) $tea3ing frorñ:'a MotorVehicic c/s 269(c) of the Penal Code0 .

JJD G ME N T

MWES I Mgomba 5/0 Usa]co was, with three others, ramely, Salum sb Katoto, Matony sb Jonas arid Marko sb Ambrosi, charged with stealing from a Motor vehicle contrary to scctjon 269(c) of the • Penal Code and after. a full trial .'the larned tr±'aI' Residehtagistrate Mr. B.P Moshi, found the 1st o be 3rd accused persons hot 'g..iity acquitted them'.but found the fourth accused person, the said Mgomba s/o Usako guilty as charged and convicted him and sentenced him to 1 i.ve years i..mprisonment purportedly undE. the Minimum Sentence Act, 1972 . . . . -.. Aggrieved 'by that decisiOn Of ,Dodma,District'Cbürt! le is now appealing to this court' aainst:'bo't'h conictioñ thid'sntence. c'. , •• Factually it' was deposed before 'ád)-bo7l'lered by, the trial court that .; thiring'the'night.bf 6th/7th October 1972 tn—oñ"'motor vehicle 9: Registration No0 TAlC 977 carrying about 110 bales of clothes 30 bales o MWatx Khaigas enroue to Dar s Salaam from Mw.anza w:aS parked: along' the 10th st'eet !h' Odoma'Towhship0 "themornin it'.:was reported to thd"Pôli'ce Dodoma that 4 bales of khangas: had beer stolen at night from that lot after the said lorry had been b'roken into0 In the course of investations that followed the Police arrested several people with khangas which positively were proved to be the same as those which had been stO1en from that vehicle, 'The evidence touching on the

identification of those articles was very' •orte 'aud to my observation,,-,.was very commendably dealt with by the learned trial magistrate who, I must hasten to add, tried the case with absolute thoroughness which.. i dèpe ing cQngratulant 'comment. The chain of C.vidnce z1ear1y -led to- th fact that: the' appellant was found with 260 pair's of khangas answering he design rc 097 within a period of seven days from the day the four bales of khangas disappeared from the vehicle in question whereas the other three accused persons gave some account as to how they acquired the few pairs of those similar khargas the fourth - ccused person totally fai' led to give an account as to how i'awfullv he came into possession of these items 0 Thus the learned trial Resident Magistrate acquitted those other three accused persons as a result of casting the doubt that hang 0 0 . . 12 over the prosecution case in coxihéction with them and he applied the-. doctrine of recent possession against the 4th accused who had faile'c to account for the possession of those 260 pairs of khangas. • Havir - carefully scrutinized the record of the trial court in the l±ght of the memorandum of Appeal, I see no substance on which the trial côut'sfindngs and restilthnt conclusicns could be faulted. • In his memorandum of appeal, which, if I can mention in passing, is couched in phraseology which makesit difficult

to under- stand for the sthange English style imported therein, the appellant merely resorts to ohllenging the trial magistrate's approach and conclusion on the evidence 0 There iS,o substance that would waLrant this courts efforts further probing' those points which as I had stated earlier were comrnendabJ,y and properly exhausted by the learned trial Resident Magistra- te0 In my view, the guilt of the a"ccused was peintodly established beyond all reasonable doihtnd thus the conviction must be left: undisturbed As regards sentene it is evidently clear that the learned Resident Magistrate eired in law in holding a view that an offence u' 'r section 269(c) of the Penal Code falls within the scope of the Minirn Sentences Act0 In short the answer is that it does not, .all' within the ambi t of that Act No 1 of 1972. This being the case the question now is whether the sentence of 5 years imprisonment is too severe as tQ qualify for interference by this court0 Well 2 the answer is difficult to give but after heving strainously exercised my mind, I am left with a positive opinion that -. that sentence of 5 years imprisonment may somewhã± er' on the severe side but it is not so manifestly severe that it would justify this court sitting as an appellate court to interfere with it in the c Ircumstances of the case. It is the duty of J -i COULS of aw at all levels to instil a civió sense

of rcsponibility and respect towards public property,. , like the khangas jnt.he instant case, which belonged to one or r esteemed parastata..s, the Nate0 Consequently that sentnce is likewise left undisturbed and since it.requres confirmation of this..:c.ourt it is hereby duly confirmed0 In the final result therefore this appeal fails in 'll its material aspects and is thus finally dismissed in L - ' entirety 0 :flelivéred in open court at Dodoma this 25th day of July 1975 (f E.A. MWESIUMO AG0 JUDGE For Republic Mr..W.X..Mbilinyi v S40 For Appellant: Absent and unrepresented0