19740802 TZHC Mwanza

IN THE HIGH COURT OF 1 1LNZAIA 1T1 AT MWANZA APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO0 177 OF 1974 ORIGINAL CRIMINAL CASE NO0 18......OF 1974 OF THE DISTRICT COURT OF MPANDA DISTRICT AT MPANDA BEFORE B.I.D. MYEGETA Esq., DISTRICT MAGISTRATE AHD NUSA MZAHAJ'JUO 000 000 00000 00 0 00 00 000000 00 0 00 0 0 0 000 OAPPELLA1SIT 0 (Original Accused) versus THE REPUBLIC.......................... 0 0 0 0 ORESPONDENT 0 0 0 00 0 0 (Original Prosecutor) IMS HARGE: Stealing by servant c/ss 271 & 265 of the Penal Code0 JUDGENENT LUGAKINGI j. The appellant was charged and convicted of stealing by servant and sentenced to 8 years' imprisonment0 This appeal is against both conviction and sentence0 The appellant was employed as a storekeeper by Tabora Go.percttive Union and stationed at Mpanda. On 7.11.73 he took over the duties as storekeeper and was handed 1124 tins of cooking oil among other items. This was not disputed by anyone0 The appellant kept a stock card on which he recorded the number of tins he issued out to the Union shop0 On 18.12.73 his card showed that he had 417 tins in stock which meant that he had issued out 707 tins in all0 On 21.12.73 another person was to take over from hint. When the tins were counted only 384 of them were found 0 The card did not show how he had disposed of the remaining 33 tins0 He was accordingly charged as having stolen the same 0 In his defence the appellant agreed that indeed he took over 1124 tins0 He also agreed that his stock card showed 417 tins in stock on 18.12.73. He further agreed that 384 tins were found on 21.12.73. But he went on to say that there was another 19 empty tins which the account- ant had not counted0 This would have made the total number of tins to 403. Indeed that was the actual total in the store. He further stated that on 20.12.73 someone had been apprehended behind the store with.7.ti.ns. Assuming the seven tins were stolen from the store that would bring the total to 410. He then submitted that the thief may have actually stolen 14 tins and had disposed of 7 tins at the time of his apprehension. If that were the case, the total would then be 417 tins, the number reflec- ted on his card as at 18.12.73. The prosecution produced PWO3, James Vungwa, the person who handed over to the accused on 7.11.73. This witness told the court that on that day there were 19 empty tins in the store over and above the 1124 tins handed over to the appellant. He went on to say that he even obtained a delivery note from the accountant writing them off although they were left in the store. Mr. Tukunjoba for the appel- lant argued that if these tins did exist on 7.11.73 they should have been recorded inhe handing over certificate as was the case on 21.12.73. . AW -2- There isn't really much in this argument0 The question is whe- ther to believe or disbelieve the evidence of PW.30 The trial magistrate specifically addressed himself to this question and held that PW,3 was a truthful witness0 Mr. Tikunjoba has not advanced any argu. ments as to why this witness should not have been believed0 From the record I also cannot find any ground upon which I can hold the trial magistrate to have gone wrong0 Although the 19 empty tins were not shown in the handing over certificate of 7.11.73 but shown in the certifi- cate of 21.12,73, it seems that this was not without the appellant's instigation and insistence0 About the alleged theft no evidence was led at the trial to prove that the 7 tins were actually stolen from the appellant's store0 I am therefore satisfied that there was sufficient evidence upon which to convict the appellant as charged and I will riot interfere0 Turning to the sentence I also agree with the submissions made that 8 years was manifestly excessive. There was this argument that the trial magistrate should not have made reference to the Minimum Sentences Act because no evidence was led to establish that Tabora Cooperative Union was a registered society and therefore a specified autho- rity0 I have come across several cases in which this omission has turned ut to be a debatable issue0 In Malaba & others v,R,, (1972) HCD n. 103, it was held that judicial notice may he taken of registration published in the Official Gazette0 It was also said in the same case that produc- tion of the certificate of registration would be a proper procedure0 There is a host of other decided cases on the issue all to the same effect. That is the law as it stands and I think it has some, purpose. The pro- visions of the Minimum Sentences Act have to be strictly construed in view of the severity of the sentences obtaining therein0 In the instant case there was no evidence of the registration of Tabora Cooperative Union0 The trial magistrate should have at least indicated that he was taking judicial notice of publication of registration if ever there was such publication. Mr 0 Tukunjoba further argued that the value of the oil was not esta-1 blished in evidence but only stated in the charge sheet. With respect to the State Attorney who said that the value of a tin could not be expected to be' below Sh.. 100/=, I think it would be inappropriate in a criminal charge to proceed on presumptions0 In fact I note from Exh. D tendered in evidence that the value of a tin is said to be Sh, 80/=. I also note iowever that the entry "thamani yake 33 x 807= Sh, 26407=" was made by hand while the rest of the exhibit is typewritten0 It is not known at what stage this entry was made. More importantly no reference was made to this exhibit in evidence except the handing over certificates and the stock card0 The appellant was therefore deprived the opportunity of con- testing the value0 It is important in these cases where the value of sto- len articles is of socmuch significance in th determination of the sen- tence that formal evidence is led to establish the same. In this con- nection see also Haslett v, Republic, (1967) E.A. 796, at p. 802. Taking into consideration that the appellant was also a first offender the sen- tence of 8 years had no justification at all. I accordingly reduce the same' to one of twelve (12)months' imprisonment, The order for com- pensation was also incompetent and it is accordingly set aside. In summary, this appeal is allowed in part. MWANZA O K, S,K, LUGAKINGIRA 2nd AUGUSTJ 1974,