20131204 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA I AT DAR ES SALAAM CRIMINAL APPEAL NO. 122 OF 2013 MPALE JONAS MWAIPUNGU V. REPUBLIC JUDGMENT Shangwa, J. The Appellant Mpale Jonas Mwaipungu and Another namely Juma Athuman Hussein were jointly and together charged in the court of the Resident Magistrate at Kisutu where they faced criminal charges raised on two counts. On the 1st count, they were charged with interfering with property used for providing necessary service c/ s 60 (2) of the Economic and Organized Crime Control Act Cap. 200 1 ' I ! i R.E. 2002 read together with paragraph 20 (1) (2) and (3) I I (a) of the First Schedule to the slme Act. On the 2nd count, I , they were charged with fraudul~nt appropriation of power !i I C/S 283 of the Penal Code C~p. 16 R.E. 2002. Both of ! them were convicted on both co1tnts. On the +st count, they I! I ' were sentenced to eight (8) years imprisonment and on the I~ I I 2 nd count, they were sent~nced to five (5) years I I 1! imprisonment. Juma Athuman · Hussein jumped bail. So, he was convicted and sentenced, in his absence. The Appellant was not satisfied with both conviction Ii ! I! I and sentence. He decided to appeal to this court. In his I petition of appeal, he raised eight grounds of appeal. From . I! 1 "I' these grounds, it can be gath'.ered that the Appellant is I com plaining for having been cohvicted by th~ trial court on evidence given by his co-accubed and in ~he absence of expert opinion. 2 I The particulars of the offences with which they were charged are as follows:- First, that on 24 th December, 2009 at Mburahati Kisiwani area within the city of Dar es Salaam, they illegally disrupted, damaged, hindered and interfered with TANESCO networks used to provide necessary services. Second, that on the same date, month and year and at the same place, they fraudulently and illegally contracted an illegal service line from TANES CO power line to the house of Benigna Mtolela at Mburahati area, Dar es Salaam. I have gone through the testimonies given by the prosecution's witnesses. In brief, the following is what those witnesses told the trial court:- P.W.1 D 7077 D/Cpl Ignas told the trial court that when they arrested Juma Athuman Hussein in connection with the offences charged, he told them that the Appellant 3 ' I Ii 1: ' ' !I I' I who is a meter reader engage4 by TANESCO for meter i. reading is the one who used /to send hirri. to Benigna Mtolela's house at Mburahati to/interfere with TANESCO'S ! ' networks. P.W.1 also tendere~ one Heniy Shillanga's 11 I1, statement which he made at thb! Central Police station in ! I! which the Appellant is associ4ted with Juma Athuman Hussein's criminal behavior as f1eged by th~ prosecution. Henry Shillanga died before giviJg his testimony in court. I !1 i P. W. 2 Benign a Mtole la tol~ the trial ~ourt that her house in Mburahati which is f 01 rerit had a d e bt problem of 1: 1 1 Tshs. One Million being arr~ars of electricity bills to ! I /, TANESCO. That one Juma wno was the Appellant's co- 1 accused went to her house ih Mburahati. and told her f ; tenants that he could solve rhe problem .. That on 14 th I I January, 2010 Juma phoned *er several times and asked I i I her to give him Tshs. 100,000//,= so that he could take it to l I I his boss at TANES CO in order to solve the problem that j, I 4 i: ! i was being experienced by her tenants at her house in Mburahati concerning the meter and the electricity charges that had gone up to Tshs. One Million. That she went to TANESCO'S Offices at Ubungo where she met one officer called Shillanga and reported the matter to him. That while she was with Shillanga at TANESCO Ubungo, Juma I phoned her again and she asked him to meet with her at TANESCO Magomeni. That she went to meet him there with Shillanga and one Ignas. That when he arrived at TANESCO Magomeni, he found her in the bills office and ' that she wanted to give the money to him but he asked her to give it to him outside the bills office. That while going outside the bills office, he was. arrested by· Shillanga and Ignas. That when Juma was asked by TANESCO Security officers as to who had demanded Tshs. 100,000/= from her, he replied that it was the Appellant. 5 P.W.3 Eunice Antony Mapunda told the trial court that she was a tenant in Benigna Mtolela's house at Mburahati and that one day Juma went with the Appellant to I Mburahati and that when they: reached there, they were given Tshs. 25,000/= out of Tshs. 50,000/= which they demanded for fixing new meter at Benigna Mtolela's house at Mburahati. From the evidence of the above mentioned prosecution witnesses, there is nothing to show that the Appellant did disrupt or interfere with TANESCO'S networks or to show that he fraudulently appropriated electricity power at Benigna Mtolela's house in Mburahati. The fact that the ' Appellant was mentioned by his co-accused that he needed Tshs. 100,000/= to solve the electricity problem at Benigna I Mtolela's house and that the Appellant and his co-accused were given 25,000 / = by the tenants to replace a new 6. electricity meter there, is not evidence to prove that the Appellant committed the offences! charged against him. The learned State Attornjy Ms Honorina did not I support the Appellant's convictibn by submitting that the I trial court erred in law in coiivicting the Appellant on I . uncorroborated evidence of his co-accused. I agree with her submission. For these reasons, I quash his conviction and sentence which were imposed on him Jy the trial court on both I counts. I order that he should be releaseq. from prison I henceforth unless he is lawfully detained therein on I another matter. ~ A.Shangwa lI JUDGE I 4/12,/2013 7 ' I , ! l I Delivered in open court this 4 th ! day of Decetr}ber, 2013 in 11 i . the presence of the Appellant 1artd Ms. Honpr1na for· the I f ; " i I I Republic. i I ~ i ( A.Shangwa JU~rE 4/12/2013 I ' '' .I ·' I. I. I I I i i ' I. ' 'I I I I I I j I I: ' I ' '\ t I I I. I ' ' I I I I. 'I I