19981027 TZHC Mbeya

IN THE HIGH COURr OF 'I:JJ\JZ!$IIli. J\.T iViBEYl1. CRIMINI..L TIBVISION NQ .•. 2/98 (From the decision of the District Court ,_ oLNbe;yQ. Criminal ', . ; , Case Noo 632/97)

VERSUS ,· ,, .f .. ALEX NGEI'WA. o·•·• --~-o o • • o • o o o o coo co••••.• o o o • oRESl·ONDEN'.r

RULING MWI1·0T0 . J ·----L-.;'..1. 'This court called for revision of the judg0me~t of the District Court. _, ... · of fibeya which c.'lnvicted the respondent i'i.lex s/o Ngetwa for stealing by, ageJilt ,90 bags (- bngs of round (Insh) potatoes valued at shs.1,356,000/;; ~nd sentenced him to 18 months iii j~iL\1~tb,out ordering for restitution of Tshs.1,35"t,ooo/= to the victim of the crime one Petro s/o Mtisyo who testified as I'W1 was justfied. · When called upon to show cause why the order ;,f compEin:;ation should not be made against to him the respondent answered that he was not guilty of stealing by agent at all. Before any order of refund .Jf shs.1,350,000/= the conviction must be looked ,: . ,. into if it was soundo The Jearned Mr. N;mgela (Sii.) supported conviction, sente.nce and the proposed order of restitution of the stolen property':;:; value in Tshs, 1,350,000/=. From the testimony of PW1 the accused and the victim of the· crime;-k~~w ®· other for many years both in DSM, and Mbeyas At the ti~~ of the theft the . accused w~ staying with victim of, the" crime as his guest. May trusted @ other and FW1 bought between 90 - 100 bags ~f :·;.-i::'ound potatoes from PW2 Enock s/o Kaporo out of which ~o"bag were entrust.,ed to tlte. ac.cused to go and sell them for him in DSM. Despite having ~old thaw. the. aieused never returnE;_d the prcM'·eeds thereof to i'W1 until over

6 months elapsed. on· being traeed in Kihesa· Iringa, the actused was found selliilg tomatoes and he. confessed to h~ve ~old the ., . bags of rou:ad . potatoe~ at a los~ the pro~eec'L!I pf whieh he failed to remit to the PW1 for even a single ftent until he was donvid.,' in court and the execuse that he was still : ~., looking the money to refund to PW1. - 2 - This was not a civil question of the respondent for merely looking :"'nr money for him at to refund to PW1 •.. It wciS a crimfaal question of the respondent having sold the potc..toes as ,agent df PW1 all the proceeds of which he stole them by . ,. . using them fraudulently agdnst the wishes of its ovmer a."ld permanently to deprive the owner thereof of the same proceeds., Tt1is is single theft by agent for which the respondent was, prope:rlj, ~onnectec~ nnd sentenced to 18 months :.i '.J .. 1 imprisonment. .,._ . At the same time ·, . tla~, . ;respondefrf . ~ . . ... 'cannot be left to benefit ru1d enjoy the illegal fruits of his crimeo He should have been ordered to reflL"ld the entire shs.1,350,000/== value of the 90"1::iags:of potatoes 2.t the D.£H mark~t to where he sold them for all the transport of the 90 bags potatoes was arranged and paid for by the victimof the crime" I hereby order the accused itlex s/o Ngetwa to refund shs.1 ,350,000/== to iiW1 Petro s/o. :Mtisyo with immediate effect. ,_ EeL.. Ko MWI?OPO

JUDGE ...... 27/10/1998 Date: 27/10/1998 Coram: Hon. B.L.Ko Mwipopo, Jo For ~epublic Mro Mulokozi learned State Lttorney., • For Respondent - Alex Ngetwa present in person. B/C Mrs. H. Kambadu. ·Court: Ruling delivered in the presence of the respondent. · E.L.K. M\-::~:eoro , JUDGE --- 27/10/1998 ·• I certify that this i:s a true and co}-'re()t copy·• of the original Judgement. •• ... , ; ")/ i •: - ,. I. ,, l -~. . . .,,,_.'~ "' . . t DIS'I'RICT REGISTRAR ,. -~., MBEYA' . .-.·