20010827 TZHC Dar es Salaam

IN THE HIGH COURT OF 'I';U1ZANIA AT DiW E,S .SALAil.M ·.c-.·-~•.:a.:r,,o.=,,__. F.C O cnnnN.f.L APP-EAL NO. 13 OF 1997 9(A11peal from Kinondoni District Court in Criminal Appeal No .. 49 of 1996, original CriminaJ.. Case No. ~-73 · of 1996 of Kawe Primnry Court) · PASCHAL AHBRO.S MBEGEZE oooc,~o APFLR;lNT Versus THE REPUBLIC oooeoo HESPONDL:NT JUDGJ\;I!;NT ~:.,;a~--.~--..;&:::.11:::.:IIC,;_&":.:A , 1n this petition of appeal Paschal Ambros Mbc 0 eze has filed six 'grourids of a 1;peal asainst the jud 6 ment of the District Court of Kinondoni in Critnin.al Appeal No. 1+9/96 (Hon. Ligema DH)" The District Court of Kinondoni sitting on appeal reversed the judgment. of the K..'7we ··- Prirr.ary Court which acquitted the~ Eippollant of tho charge of stcalinc by agent c/s 27:, {b) of the :Penal Code. Among th,0 grounds of appeal is th-;1t _:the first appelLde court "made a serious error in lat-, to receive money given by a third pt1rty, unsolici tecl by the appellant;,.. in an attempt to resolve u::itters outside the court, as exhibit and evidence of the alleged offence of theft by an agent;;• In rny considered view this is the central issue of contro-;.rersy, and the disposal of it will dete:cmine the appeal filed in this court o However in order to c1ppreciate the sequence of events leading tot.his appeal, I think it is desirable to summarise the background of the case. Sometime in

1996 the appellant, who was an employee of Emmanuel Rutahindurwa in the capacity of a Medical Doctor, treated Resti tuta Kamazima on credit upon the QJ.arante·e.6_3weat Betty Kamazima.. The /yf credit for the treatement amounted to Tshs.3 1 000/==.; The said credit remained unpaid for sometirr:e and when the employer enquired about the said credit, there were conflicting versions regarding it, a. fact which lead the employer to hold the appellant untrustworthy. The appell 8 nt was relieved of his duties and after a prolonged debnte he was paid his dues for termip.otion of ernploymento •••• /2 2 Shortly thereafter the employer reported the appellant to the Police of stealing by agent when one of the oppellant 9 s relatives volunteered and indeed paid Tshs.,3,000/~ to cover the aJleged outstanding credit. The case was heard by the Kawe PriEiary Court, which, on the basis of the evidence before it, acquitted the appellant., The Primary Court was satisfied that the thr~e thouaand shillings credit was indeed paid, and received by the appellant, \·,ho handed it over to the Cashier of the Dispensary., From the evidence on record it is true that shs.3,000/:.c: which was tendered in court was not connected 1t.Ji th the offence upon which the appellant was ch:::1rgedo I agree with the appellant's contention throuch his learned counsel Mr., Chamriho th:-'Jt the learned

District 1J-1agistrate grossly misdirc;icted him.self in receiving in· evidence money given by a third pnrty in an .st tempt to resolve ire tters outside the court as exhibit and evidence of the alleged offence of theft by agente Since the d,cision of the leori:,.,-::,d District Jv13gistrc1te was substantially bcised on that piece of evidence I hold that the findi:.:1.g has no basis for being erroneouso Accordingly I quash the proceedings of the :District Court and I set aside tfi8 sentence -of - one year- ir:1p1~isonment imposed by the court. In the eyent the appeol iE, allowed and the appellant is sot free forthwith unless otherwise detained according to law• I so order. /) \./.,, '.:'. tv,~ s. Ihemst.

JUDGE 13,/8/2001 Coram: Ihema, J. Parties - li.1)sent C oC. vlabukundi Order: ~~ Judgment on 27/8/200'!., Parties to be notifiedo

JUDGE o , , o r/, ;7. ) 3 27/8/2001 Coran: Ihema., J. For Appellant - Chamriho For Ticspondent - Kmne ja c.c. M. Ally Cour_i: Judgment delivered before the parties on 27/8/2001. Right of a11peal explained. __/\ (J/,;_,v•.,._,./ s. Ihetna JUDC,E ·-~_.,.,,c,.