mpale jonas mwaipungu vs republic 2013 tzhc 2165 4 december 2013

IN THE HIGH COURT OF TANZANIA

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 R.E. 2002 read together with paragraph 20 (1) (2) and (3) (a) of the First Schedule to the same Act. On the 2nd count, they were charged with fraudulent appropriation of power C/S 283 of the Penal Code Cap. 16 R.E.

2002. Both of them were convicted on both counts. On the 1st count, they were sentenced to eight (8) years imprisonment and on the 2nd count, they were sentenced to five (5) years imprisonment. Juma Athuman Hussein jumped bail. So, he was convicted and sentenced in his absence. The Appellant was not satisfied with both conviction and sentence. He decided to appeal to this court. In his petition of appeal, he raised eight grounds of appeal. From these grounds, it can be gathered that the Appellant is complaining for having been convicted by the trial court on evidence given by his co-accused and in the absence of expert opinion. The particulars of the offences with which they were charged are as follows:- First, that on 24th 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 TANESCO 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 .l 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 who is a meter reader engaged by TANESCO for meter reading is the one who used to send him to Benigna Mtolela’s house at Mburahati to interfere with TANESCO’S networks. P.W. 1 also tendered one Henry Shillanga’s statement which he made at the Central Police station in which the Appellant is associated with Juma Athuman Hussein’s criminal behavior as alleged by the prosecution. Henry Shillanga died before giving his testimony in court. P.W.2 Benigna Mtolela told the trial court that her house in Mburahati which is for rent had a debt problem of Tshs. One Million being arrears of electricity bills to TANESCO. That one Juma who was the Appellant’s co­ accused went to her house in Mburahati and told her tenants that he could solve the problem. That on 14th January, 2010 Juma phoned her several times and asked her to give him Tshs. 100,000/= so that he could take it to his boss at TANESCO in order to solve the problem that 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 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. 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 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 Mtolela’s house and that the Appellant and his co-accused were given 25,000/= by the tenants to replace a new electricity meter there, is not evidence to prove that the Appellant committed

the offences charged against him. The learned State Attorney Ms Honorina did not support the Appellant's conviction by submitting that the trial court erred in law in convicting the Appellant on 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 by the trial court on both counts. I order that he should be released from prison henceforth unless he is lawfully detained therein on another matter. 4/12/2013 Delivered in open court this 4th day of December, 2013 in the presence of the Appellant and Ms. Honorina for the Republic. o o ■o“ X (/* i&:up-tv?' t \\ A.Shangwa i-!i£ t J l Nr

JUDGE \ , ->r 4 / 12/2013