nelson idefonce kimwaga yesu vs republic 2023 tzhc 22758 30 october 2023

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MTWARA DISTRICT REGISTRY. AT MTWARA CRIMINAL APPEAL CASE NO 53 OF 2023 (Originating from the Resident Magistrate's Court of Mtwara at Mtwara in Criminal Case No 93/2022) NELSON lDEFONCE KiMWAGA WESU,.v.^tf.^.>-.^,o.... APPELLANT VERSUS THE REPUBLIC ...................................................... RESPONDENT JUDGMENT 20* & 30'- October2023 LALTAIKAr J. The appellant herein NELSON IDEFONCEKIMWAGA (a)YESU was arraigned in the Resident Magistrate's Court of Mtwara at Mtwara charged with two counts of house breaking c/s 294(1) of the Penal Code Cap 16 RE 2002 and Stealing c/s 258 and 265 of the Penal Code (supra). It was alleged that on 23/8/2022 at Ligula B Area, Mtwara Municipality/, the appellant broke into the house of one Magdalena Atanas with the intention of committing a crime therein. He did steal iron box make rising 1 Page 1 of 7 and TV make SINGSUNG model number DC25 FA 25 1 remote for simsang black in color collectively valued at TZS 320,000/- and cash to the tune of TZS 90,000/- making a total of 420,000/= property and cash allegedly stollen. When the charges were read and explained to the appellant (then accused) he pleaded not guilty. This necessitated conducting of a full trial. After the trial, the learned trial Magistrate was convinced that the prosecution had proved its case at the required standard. He proceeded to convict the appellant as charged and sentenced him to 5 years in prison on the first count and also 5 years on the second count running concurrently. The appellant is dissatisfied with the conviction and sentence hence this appeal based on five grounds. I choose to reproduce them as hereunder: The learned trial Magistrate erred in both law and fact by convicting the Appellant by admitting the exhibit which was objected by the Appellant without giving proper reason especially when the Court was admitting the exhibits PA and P5 as it seen in page 17 andpage 20 consecutively. 2. The prosecution faded to prove the ownership of the alleged property to be stolen from PW1. 3. The learned that Magistrate erred in both law and fact by convicting and sentencing the Appellant while there was fabrication of even in this case especially the evidence- adduced by PW2 who testified that is the one who Interrogated the Appellant and then is the one who involved in drawing the sketch map at the scene of crime. 4. The trial Magistrate erred in both law arid fact by convicting the Appellant without taking into the cognizance the defence raised by the Appellant and accord no weigh of any kind of such defence. 5. The learned trial Magistrate erred both in law and fact by convicting the Appellant while the prosecution failed to call materia! witness so as toprove the offence against the Appellant without reasonable doubt. When the appeal was called for hearing on the 20lh of October 2023 the appellant appeared in person, unrepresented. The respondent Page 2 of 7 Republic; on the other hand, appeared through Mr. Hurubano, learned State Attorney. The appellant, not being learned in law/ indicated that he had nothing to add to his expounded grounds of appeal accompanying the memorandum of appeal. He, however, reserved his right to a rejoinder. Taking the podium, the learned State Attorney for the respondent announced that he did not support the appeal. He outlined that he had grouped the grounds of appeal into two categories: the first group consisting, of grounds 1, 2, 3, and 4, and the second group with ground 5 standing alone. Starting with the first group (1, 2, 3, 4), Mr. Hurubano addressed the complaint related to conviction based on confession. He made it clear that the prosecution disagreed with these grounds. Referring to page 9 of the trial court's judgment, he cited the case of NYERERE NYAGUE v. REPUBLIC CRIM APP 67 OF 2010 CAT, where the CAT had proffered that the best evidence is the voluntary confession of the accused person. This position, Mr. Hurubano asserted, was supported by the evidence of PW2, G1224 D/CPL Florence, who, on 23/8/2022 around 17 hours, interrogated the appellant suspected of the mentioned offence. The appellant was informed of his rights, and his statement was recorded as a cautioned statement, tendered as exhibit P3. The learned State Attorney emphasized that the appellant confessed to the offence and prayed for dismissal of these grounds. Page 3 of 7 Mr. Hurubano moved on to the fifth ground of appeal, stating that the complaint was about the failure to call a material witness. He informed the court that, based on the prosecution witnesses PW1 to PW4, ail material witnesses had been called. Mr. Hurubano emphasized that it was within the prosecution's- discretion to determine which witnesses were material. In conclusion, he prayed for the dismissal of all grounds and the appeal in general; The appellant, in his rejoinder, prayed that his written grounds of appeal hitherto filed in court be duly considered. Recalling the events of August 23, 2022, a Tuesday, he recounted being in the lia.nd0pe-.Area on his way to a certain place, He declined a ride from a bodaboda rider but was later arrested when the rider returned with another person named Mike. The appellant was apprehended in a location where neighbours expressed concerns about his safety due to potential mob attacks. They then went to the alleged crime scene, where the police asked the ladies present, whether they knew him and they responded to the negative, although they couldn't provide exact details. Contrary- to the prosecution's claim, the appellant asserted that he never confessed that he had committed the alleged offence, emphasizing that he was never questioned about the case. He refuted the claim of being beaten by the police, clarifying that he faced the threat of mob justice, I have dispassionately considered the grounds of appeal, rival submissions, and the lower court's records. My role as the first appellate court is to re-evaluate the evidence tendered in the trial court and come up Page 4 of 7 with my own findings if necessary. See LEORNARD MWANASHOKAV. REPUBLIC Crim Appeal No 226 of 2014 CAT. It is a cannon principle of our criminal Jaw that that the prosecution case is proved beyond reasonable doubt. This duty rests on the prosecution. See WOODMINTON V. DPP [1935] AC 462. As meticulously stated by the learned trial Magistrate, the term proof beyond reasonable doubt has not been defined in statutes. In the case of MAGENDO PAULAND ANOTHER V. REPUBLIC [1993] TLR 219 the CAT held that "For a case to be taken to have been proved beyond reasonable doubt its evidence must be strongly against the accused as to leave a remote possibility in his favour, which can easilv he dismissed." I have reviewed the evidence carefully. It all boils down to the appellant's attempts to live beyond his income by petty thievery in the streets of Mtwara Town. As the Kiswahili saying goes, sikuza mwizini'arobaini, his last day finally arrived, and he was apprehended and almost lost his life in the hands of civilians. . The story Is simple to connect albeit. The victim (PW1) was a young woman living in a rented room with fellow tenants. On the fateful day she locked her room and proceeded to a nearby pharmacy. As she was locking her room, she did not know that the appellant was in the toilet not to attend the call of nature but to observe the movement of her target (the victim who later testified as PW1). Page 5 of 7 The appellant saw the victim hiding the door key beneath the door mart (a familiar practice in many parts of Tanzania). He then proceeded to open the door and took the items described above. The police did-not have a very difficult task in this case. They were called after the appellant was put under arrest by angry neighbours who found him with the items that were later identified by the appellant as her own. The learned trial magistrate in his judgement indicated that he took over the file from his predecessor to compose the judgement. I commend him for having meticulously connected the story as if he was the one who conducted the trial. He also analysed the evidence as required by law. In the case of LEORNARD MWANASHOKA V. REPUBLIC (supra) the CAT had the following to say on analysis of evidence: "ft is one thing to summarize the evidence for both sides separately and another thing to subject the entire evidence to an objectiveevaluation in order to separate chaff from grain. Furthermore, it is one thing to consider evidence and then disregard it after proper scrutiny or evaluation and another thing not to consider the evidence at all in the evaluation and analysis." The learned trial Magistrate subjected the entire evidence to strict scrutiny including his findings on complaints related to inability' to take the appellant to the justice of peace. During hearing of this appeal/ the appellant found it rather difficult to explain what he was doing at Ligula Street while he was a resident of Magomeni. More importantly/ as stated by the learned trial Magistrate and I fully agree with him, the appellant did not object a rather detailed cautioned statement he recorded with the police after he was Page 6 of 7 saved from the angry wananchi. The mob justice that almost took away his life is an indication that courts should take thievery allegations very seriously. ’■Premised on the above analysis, I see no merit to the appeal and the same: warrants an outright dismissal. The appeal is hereby’dismissed. Judgement delivered under my hand and the seal of this.court this 30th day Of'October 2023 in the presence of Mr. Steven Aron Kondoro, learned State Attorney for the.respondent and the appellant who has appeared in person,: The right to appeal to the Court of Appeal of Tanzania is fully explained;