20070330 TZHC Mwanza

I I ,. . IN THE HIGH ~OURT OF TANZANIA . ,

IN THE DISTRICT REGISTRY

ATMWANZA . ..

APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 55 Of 2017 (Original Economic Case No. 70 of 2013 of the District Court of Tarime District at Tarime) SABINA .KiaAKI ■ II • • II II ■ 1111 ■ IA ■ DI!! ■ -■ 0 II llllll II RIIB ■ 1111 ■■ 1 ' P 11i1 a ■ .m11• ■ lilfil 811' !I Ill II APPELLANT

VERSUS TH:E .RIE,P-lJ.13.LI,C ,11111 r11111 ■ 11w11 l!t111,■ 11 •••·• ■·.. ••• ■ f!•,•• ■ &·■ ca,9a 11e ■ e fi ■ ■ 11 l!l[I ·RESPQN'DENT

JUDGMENT · MAKARAMBA, J.: The Appellant has come before this Court on appeal. She was arraigned before the District Court of Tarime on three counts. Orie, . SteaHng by Public Servant c/s 258 and 270 of the Penal Code. Two, Abuse of Office c/s 96 of Penal Code, [Cap. 16 R.E. 2002]. Three, occasioning loss to a specified authority contrary ·~o Para 10 (1) of the First Schedule . and Section 57 (1) and Section 60 ·c2) ·of the Economic and Organized Crime Control Act, [Cap. 200 R.E. 2002]. The trial Court having looked at the evidence found the Appellant guilty on two counts, namely, Stealing by Public Servant and Occasion Loss 1 . l . - (. to a Specified Authority and sentenced her to suffer" four years in jail on each count, whi~h sentences· were to run concurrently. The trial Court acquitted the Appellant on the charged co~nt of Abuse of Office. The Appellant has been dissatisfied wfrh the conviction and sentence and has ~ppealed the decision of the trial Court on fifteen grounds of appeal. At the hearing of the appeal, the Appellant" appeared in person unrepresented and prayed that the grounds of appeal be recorded and entered as forming part of her submissions in chief in support of the appeal; which prayer this Court duly- granted. The Respondent was - - - - · represent~d by the able learned State Attorney Mr. Kidando, who in_ his reply essentially supported the appeal for

reasons which come out very clearly in his lucid submissions. This Judgment essentially is pegged on the grounds of appeal and the respective submissions of learned State Attorney as well as the evidence on record. I should point_ out that, in ·order for a person to be said to have abused office, the prosecution has to establish first that such person had an office and secondly, that that person has abused it by doing acts or - . · omissions which the law categorize as amounting to abuse. The trial Court · as the learned State Attorney stated rightly acquitted the Appellant on the 2 . I count of abuse of office. The reasons are clearly stated in the Judgment and the submissions by the. learned State Attorney for the Respondent. I do not find it useful to repeat them here. On the ground of appeal as jointly submitted on by Mr. Kidando essentially fall on the first category namely1 failure by the prosecution to prove the case beyond any reasonable doubt. The record and the submissions have pointed out the vivid shortcoming in the evidence by the prosecution to establish the 1st count of stealing by public servant. The Appellant testifying as DWl gave reasonable explanation how the money amounting to Tshs. 20,0Q0,000/= was withdrawn and remitted to the Musoma Sub-Treasury. The prosecution failed to bring evidence to establish otherwise. Furthermore, as to the_ utilization of the

money intended for the · construction of the 2nd house for teachers, the defence managed to show that, the -money was authorized by the School_ Board for the purchase of educational materials. In view of such authorization as evident on record, the question of occasioned loss does not arise. On the evidence on record dearly the prosecution has failed to establish the count of Stealing by Public Servant by the Appellant of the Tshs. 20,000,000/= as well as 3 · k. Occasioning Loss tq a Specified Authority. There is clear evidence which has not_ been confroverted by the prosecution that the said ~shs. 20,000,000/= was w_ithdrawn and ~emitted to the -Musoma Sub-Treasury · on express authorization. As Mr. Kidando rightly submitted the learned State Attorney stated, if the trial Magistrate had properly directed his mind on the evidence on record he would not have arrived at the decision as he did. That being the case, . similarly, occasioning loss to a specified authority in the circumstances of this case whe~e the money initially intended for the construction of a teacher's house was authorized to be utilized for purchase of educational materials by the School Board, could not arise. The issue in :my considered view was not occasioning loss or stealing but for which purpose the said amount was utilized and the evidence on reco~d is dear that the use to which the. money aUeged

to have been stolen by the Appellant was authorized by the very Board of the very authority to which the Appellant is alleged to have made a loss to it. The learned State Attorney submitted briefly on the remaining common ground to which submissions I am in total agreement with that they are of no consequence given what I have stated above. 4 <' - It is for the above reasons that, I sha_ll al-low this _.appeal. The conviction· and sentence. of the District Court· of Tarime in Economic Criminal ·case No" 70/2013 is hereby quashed and set aside. The Appellant SABINA KIBAKI is hereby acquitted of both counts and the sentence of four ( 4) years 9n each count is hereby quashed and set. . aside. The Appellant SABINA KIBAKI shall be released from prison immediately unless she is being held there for some other lawful reasons . .. - ~ - -~-.- gfJd set free.forthwith: -It is•so drclerecL - - R.V. JUDG.E

ATMWANZA .301r1-t M.AR:CH, 2017 5