19711116 TZHC Mwanza

• -• :1 tic IFfHL IH COUT OP TAHZIA AT i..ffZA Oki I Appellate Jurisdiction CEIhIiAL APPEAL NO 649 OP 1970 (Oiigirin.1 Chiminal Case No., 657 of 1969 of the District Court of Kigona before I.I. S. Kdbibi District cristrate). EVf 723/llCJ1 4/ SAIDI tJYU . . . . . . . . . . .APPIltJjAITT (ORIcIEAL ACCUSED) versus T]H REBJIC • , ., . , . . . • , ,RESPOflDEL1T (oRic-lirAL PHOSECUTOR) CHARGE:- 1st count Housebraa1ng c/s 29 4(1) of the Penal Code; and 2nd count - Stealing c/s 265 of the Penal Coda, JUiMENT EIj-KINDY t J. 13 Saidi Lfluiu is appealing against his conviction and acatence for theft contrary to section 265 of the Panel Code, Cape'16 0 He was- sentenced to twelve months imprisonnent. He was charged on a nunber of counts together with John s/o Ka1ikez, Mataburaka s/o Baltezar and :ai -iya s/o Hussein Saidi, but only the appellant ad Yehya s/o Huseoi 0 S1di, \.hO did not appeal, wore convicted on separate counts of t]. - ft. Herein- i shall rciar to these people by their first naaioz, ac the- appeal cannot be considered without reference to whet they said Shabani s/o Haxrj. (p,w. 3), the coslplainmit, left his house at about 7,30 a,m, on tho 4th of Decesber, 1969. Before he loft, he secured the- door of his house 1 He left his property, including his radio (Exhibit B), in his house. He returned at about 12 noon. He found his wife, who had left bef'o hire- to go to wash

clothes at a river bank at home. He sent her to fetch him his radio, but she did not find it. The radio was no longer to be seen in their house, Upon checking He-isi saw that the door was physicaUy broken in some p1acc Yet when he left s it was in good condition. He suspected that somebody may have brohon into their. V house during their taiaporctry absence, He took his radio receipt (Pxhi'i A) end went with it to the-police atation whore he reprtocl theft of hia radi Police Constable Leonard (P.w.i), e-o visited the scene ci the incidit, confirmed the alleged state of, the door. Acting on information received this polióe cOnstable went to the house of Yeya, and found theradio(Exhibit B) on, and he confiscated it ce-id arrested YcJe-ya as e1l And again acting on inforraationreCciVedirOia Yahya, ho prcceded to and arrested the appollant o As a7. result, the sppe1lant togotflo with Yiia, John and Matabaruka, were jotllltlY charge-C for housebreaking and stoaJ.ing contrary to sections 294(1) and 265 of the Penal Code, Cap,16 The appellant was convicted alone on tc second count o.t theft,, The rest were acquitted on both counts. The complainant properly identified the radio (Ex.laibit B) which was recoeed three- day later after he found it iSiflfi Hu eJlaced V ought it for ,300/-, Id.a P.VT.4 bold the trial couxt that rning of 4th of December, 1969, she saw Yahya return-to his ying

a wireless similar to the one produced in coUrt. She alleged as in company of the appellant, John and Matabaruka After they ed Yahya's room, after some time, she heard quarrels in the roo1, wt otr and told her that Yahya was refusing to pay him .150/- adio he was selling to hire, but Yahyc was not prosonc with Jonn She alleged that later on she saw Y&ya coming with two police She said that she saw the radio in.Yahya's room as well. She she saw John on the 6th of December, 1969 as well in the room ra. It is not clear from her edencc as to when the police ewe t from the evidance.of police constable Leonard (P.V.l), it was on the 6th of Decanbor, 19690 She may, therefe have erred on the date when she alleged she heard John quarrel with Yahyn over the radio. Haaever, the unclearness on the dates is not important as she could have gcnuinely have mistaken the dat es The second witness was Cole-the (P.1.5), who was a concubine of Ya1ya with whom she was living, She said that it was Matabai.ka, who carried the radio when they arrived at Yahyc's room on the 4th of December, 1969, and she alleged that she heard the appellant, John and Matabaxika say that they offered the radio for sale to Ye)aya. However, later on she changed he'mind and said thatit was the appellant who carried the radio. Because of this she czñnot be relied on to depose as to who carried the radio when they arrived at

the house at the relevant dato. Besides this there was a strog temptation for her to exonerate her boy friend YEthya. John s who was an accomplice, gave sworn edence in his defce. He alleged that on the 4th of December, 1969, in the morning, tho appellant called at his house nd told him that ho hd a radio for.- sale, and that it at his hous&. lIe said that he agreed to buy it - at Sa.150/- and that lie sew the said radio at the house of the appellant. He alleged that as he did not have ready cash., he asked the appellant to accompany. bir. to his employer where he would get bin the money, and they left together. As they walked, he said, they met with Matabaruka and Yohyc., and-the appellant told him that the radio was the property of IIatabaruka Further on, ho said that 9 the appellant told himthat Yehyc wanted also to buy the awe radio, A s a result, their .tIp was emded end they went to the appellant 1 e house where Yahya inqi,iired about the price Yahya bargained and he agreed to buy it at .150/. He allgd that when ho was walking back into the romij, ho saw the appellant s Matabaruka. and Yahya to leave the house and that Yshya was carrying the radi.o He alleged that he vice requested to accompany them and he agreed. However, ho acid, when they arrived at the house of Yahya, the latter did not have- the money end therefore the appellant refused to leave the radio with bin.

At this stage, be said he left them but later the remaining three assed him . . .3 and disappeared. H0 contended that he saw the radio for the ±i.i:st t±ie in the hou.se of ih appellant. The trial rngietrate accepted his evidence and used it in acquitting bin of the charge acid in convicting the appellant for thoft On tho other hand, the appellant, who also gave evidence on effir- notion, said that obn, who was a tenant in his house, mciii to him at 9 an. on the 4th December, 1969, and told him that he had something to cell., although he did not disclose what it was o He alleged th:t 0t about 10 a.n, on the cacao day, he saw John 9 l:lutabei.ika and YaJayn and he heard Yaiaya say that he did not have money acid that they left However, he at the request of Yahya, he accompanied tbcai He said thnt the sale Cotitci not take place because Yahya's cell leader was not available. H 0 alleged that later on John told. hire that he had already sold it to Yahyn and that ho had been paid for it', This explanation the trial court ojectod when it cane to consider it liutabaluka, in.sworn evidence, said that at about 7 aca. on the 4th of December, 1969, the appellant arrived with a traneisteai radio, which was c-thibitod in court, and tdhim that Inc had been given ii to sell by some of his relatives and kept the radib, which was then venipped in a pieCe of cloth, in a basket. He alleged that

he told the apiiaii ant that he was aware that Yahyc wanted to buy a radio, and he called Yabra for hiiiw lie alleged that when he was taking Yahy'a, he ciet John and. the appellant, aihovore going in the oppo.te direction as they weretahing ..... uiih there . tho controversial radio, And that they retunied tothe oou of the appellnt whore Yaieyc agreed to buy the radio for Ss.13 0/ then he said the lour of them left for the house of Yaha, but the sale was not because Yahya' s cell leader was not available, 1-ic denied that ho had anything to do with the radi6 0 The trial magistrate fully accepted this explaiation He used it in convicting theappellant and in acquitting lit ab en.1d Yahyci confimed that Mtcibamld. went to him and told him that the appellant was selling a radio and that if he wanted to buy one he cotüd go to see it, He said that as they were walkiii:, they net the appellant end John. The radio v'zas wrapped in cloth anal kept in a basket which the appellant carried He said ho agreed to buy j ecid they ace ipanied. hixl to his haiso so that be vvoid pay the puchase price hut he said the solo fell through as the appellant did not la,vo a receipt and his cell leader ws not avnilable In the light of the other evidence, the trial court aced this explanation acid acquitted him of the charge In caaing to the conclusion that the, appellant stoic the rgdio, ih learned

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t3LJ. .I13 6 LV2T UT oqSsue sç S00IIdtIO0a 3D 0 OU0Pa ptw TO eouopo eq. °H POAIOALTT 1;' •• • e.. .5 loTned nagistr - te refused to convict the appdIIët on the count of house- ba1dng becouso noby saw the appellant break into the I1OUSC of the I complainant. Vi-bh respect 9 this was a serious misdirection as it tded to shaw that he was unaware of the doctrine of recent posacscion,nerc an accused is found in possession of stolen property shortly atter the comnission of the offence of house-breaking it can be prcm'ied that in the bsence of a probable explanation, he came into possession o± it either through housebreaking and stealing or receiving it knowing it to have been stolen or unlawfully obtained. Therefore, in this case, this doctrine was applicable. I-lcd the learned magistrate properly directed himself, he would not havefailed to realise that thcrc vas a strong presumption that the appellant cane by the radio through breaking into the house- of the couplainant 2' hours before Hvever, in the light of what I have stated, the coi-wiction is quashed and the SGfltaflCO set aside, The appellant should ho released fob1twith unless he is hd on some other lavfu1 purpose Delivered in Court at lIwza this 16th day o f libcr 971. (z, ir. El-Kindy) 16/11/71. Apjellant absc-nt - - I.Y, Sekule, State Attorney for Republic I 4