19770627 TZHC Arusha

W _ IN THE HIGH COtJRT OF TANZANIA

AT ATIZUSIUL JPPELL1TE JURISDICTION HIGH COURT CRININAL.APPEAL N 84Y0P 1975 • ORIGINLL CRIIiTAL CASE. NO. 52 OF 1974 ' OF THE DISTRICT COURT 0? TANGA DISTRICT . AT TANGA BEFORE: A. R. P. Es. Resident Maitrate 1 RATvIADHt.NI OMiB.I) 2.. MAZENGO ) a., .. . . ..... . .•....JPPELLANTS . ... 3..MI1YUAM7J2UKO ) . . (Original Accused) versus THE ' REPtJ]3LIC •... ... ...•.•,.,....•• RESPONDENT (Original Prosecutor) J1JDGENT . . . MWESIU1O, J. • Before Tanga District Court, iroided over by. A..: H. T... Nyanbq .Rcsidont Màgis.trato on 10th June 1974, - . three IJersons naod Rajadiiani O.nari, Mazengo Marko and . . Mnyaya L'Jwaniko, were foiJ.ñd guly. aci coflvict:Qd of 'cattle theft contrary to sections 268 and 2.65 of thoPena1 Code... Consequent upon those convictions eacl2. of'the three accused persons was sontoncod to five years i11iirionnent • pursuant to. tho provisions of the Mininun Sonton.c as. Act No. I of 1972. Aggri:ovd by that decision each of the throc convicts haa appealed to this court against convic.ti.on and sntence. Fortiinatoly as all t1i 'appeals reached 'the 'rogistry. 'apparently at the saao tine, all the thre norda of appa1s were opened in one file .therO'by nkiig it very easy for'.'tho court to d.oal with the threo apoa1s a's consolidated 'appeals.... . . . , ... . • .. ...•. . Facts:of the case which were clearly ostablished before the trial court are very

clear. 0n'tho 9th Sop.toiber1974, 12.hcads'Of ca'ttlb belonging to Ainio Ranch in Gouboni Unba areä. within MuhezaDistrict di'sappba'rod whiJe. on::the graziw grbunds... Nathraliy: a search for then was nountcd by those concerned. • ': :'. On the.. 11thSptoi:abr .1974 a supervisor of.. that cattle ranch one Indriss Mohaod (P.1J.5) reortocl at Muheza Police Station. the nissing of' thoso cattle. . Eveiitually the report reached the Police at noon on the 12th Septoiiber 1974. The 'rsngcr Of the ranchño the three apeilants as suspects of that'thftto a Police d.etoctive'constable Twahe (P.W.i) who in äthiition to that' göt.a repoit 'on 13/9/74 that cattle were seen at Geza at the boarder of Tanzania and Kenya just. about to becrossed into Kenya.. When. .. . 4 .. . . ... . . -2- When P.W.I wentto the scone .o:funJ one Konbo (P.7.2) with heads of cattle .inClUdflg those beloning to the ranch. When askod. Kof.Ibo stated that his herdsboy teld hin that those other ctt10 wore brought to hiLl - on the grazing grounds by:on& McIoo. Konbo's 'wife, Lsha VIanr'ato (P.W.6) also testified cht nfee people liad, approached her asking for Mdoe's whoroa1out. She then directed hc.i to Lffdoe's house. P.7.1 proceeded to doo's .aauac where ho saw the three appellants ' eicij' 50: tea. , H •,.' . ...:. When Koiel3o tolJthoo people that aiaidst his recovered group of cattle n 1jad noicod strangecattle

which did not belong to hiimtho th appellants at the house of Mdoe confessed that those cattle belonged to then. Thosewere the very aninals jeissing fron zinio ranch and which, to the satisfaction of the trial, court, wore identified by the ranch wkers, to be 11 of the 12 nissing bulls fron the ranch. . • Shortly after their confession. 'to. the O ivilians, but in the absence of the Folico , son Police officers arrived there and the arrosts of tho three sus 1Dccte rare effected ifiLlodlat ely. Subsocuntlr when they apercd bofor he ccurt charged with cattle thefL Ghe hrc apcllants as refuted the offence and denied any involve ant with those aninals. Apart fro the cofsior they ha1 io 1 a to Koubo (P.7,2) there is the evidence of P.7.6 Asha Wangato who riateriall testified to the effLCt that on 12/9/74 she had soon the three appollantt with cattle whidh'1aton wore identified by. the ranch workórs to be cattle nissii frn Azinio ranch. Those ople aserted1j told her (F. 1.6) that those cattle be1onod to tha and in fact they roccedoci1 be lead thorn to souc grazing'grounds. Thereafter those pooplo were harbourod at Mdoo's house till they left. • '' On the strength: of that evidence the:':lcarned trial Resident Iagistrate, though adcittedl 'on bhe "reco:rd she did, not expressly say so, she at least inpliedly, invoked and apliod the eoctrino of rccbnt 1 .PGs8OPs1o1a and cone to

a conclusion, on which, this court rcspoctully concurs that the Pçosoctub-ion'iad. piovd thó Cuilt of'tho three,'appollants beyoncY'all'oàsonäbIe'deubts.• . The aninals were notic cc. iiissing on 9/9/74 and were foimd in the physical os9ess1fl enL control of the ape1lants on 12/9/74 onl.y after three daye fron the data of their "1,_1iss%inL frd?e the ranch. That' period, in ny assessuont, is recent enough for objects like woll—narked cattle as those ones were, to have e doctriLa of recant possession sustainably invoked £ or th detorielnaGion of the ease. In tht. 4 4i 6 4 0 ..... . 0 0 4/3 In that event the appoa.ls of the three appellants, who in those appeals have done no nero than rocapitulating their bare denials of the offence, as against convictions nust fail. Accordingly the sane are hereby disnissod and as regards the sentences inposod against then, those were the nandatory nininun under the law. Consequently all the three appeals stand disnissod in their entiretis. Delivered in open Court at Arusha this 27th day of June 1977. / ;i' (E. i. 2-,TI2SIUMO) JTJDGE. For Appellants: Absent and unrepresented. For Respoficlent (Ppublic)t I/Ira i. T. Nguluna, State Attornoy.