evidence Saint Augustine University of Tanzania From the SelectedWorks of DR SPENCER JR

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1 Saint Augustine University of Tanzania From the SelectedWorks of DR SPENCER JR Summer February 10, 2014 evidence nnko julius nurdin, man, Saint Augustine University of Tanzania Available at:

2 25/7/2009 THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA AT MWANZA CRIMINAL CASE NO. OF 817/2009 THE REPUBLIC PROSECUTOR VERSUS GERALDS/O ELIAS AND ANOTHER..ACCUSED KAMUGISHA RM JUDGEMENT Accused person were indicated with the offence of breaking and stealing c/s 296(a) and 265 of the penal code,[cap 16, R.E.2002] It was alleged the two jointly to together while at nyakato sokoine area within nyamagana district on mwanza city at about 11:00 hour on the did break and enter the store of JOHN WILLIAM EMMANUEL, JOHN WANYIBA where by the stolen deverse items as so started into the charge sheet which on total worth Tsh 15,578,000. The charge was read and explains to the accused persons. The accused person pleads not guilty to the charge and the prosecution side in their endeavor to prove their charge against the accused person they called a total of (14) fourteen witness and some exhibits. PW1, the principal witness of this case JOHN WILLIAM on oath testified that he was on Nairobi and that the first accused was the porter into his shop. To prove ownership of those stolen items he prayed to tender TRA documents which the court rejected. On the cross examination by the 2 nd accused, PW1 said he was a customer and that they did not search into the room the 2 nd accused. PW2 ABDUL ALMAS, on oath also started on 15/04/2009 while at the garage one person asked them to cut his padlock on the reason that he lost his keys. They agreed to him and that they went to near buzuruga bus terminal being hired by the 1 st accused to do the work. On whether he believed the store belonged to 1 st accused the answer was positive on reason that the 1 st accused showed no hurry. If he knew the 2 nd accused the answer by Pw2 Was negative

3 PW3rd, witness who while under oath also started that on the hotel attendant on 15/04/2009 once Gerald arrived into his hotel and lodged a room and that he sought to put his items into the corridor whereby they agreed to him and that Gerald brought these items by motor vehicle to that hotel/guest house and when asked by motor vehicle to that hotel/guest house and when asked to touch he un mistakenly touched the 1 st accused. On cross examination he said he never knew both accused before but an reexamination he only pointed to the 1 st accused to had known him as their client. PW4 witness was JULIANA, the house owner where the alleged items were stolen while under oath said on 12/4/ st accused went to that store and that he told her we was sent by complainant (PW1) to repair the gate where by on that day the 1 st accused did nothing but returned after two days having the wheel barrow and gas cylinder. So PW4 said she could not make a follow up as to what was going on there into the store but it was after the watchman had arrived she was informed the store had no pad lock. And when asked to touch the 1 st accused in court she could not do mistake. PW5 ERASTO MPAGIKE and PW7 HAMIS MOHAMED, PW5 a drove with mwanza city on oath and PW7 affirmed that started to be a conductor to the vehicle driven by PW5. All together 15/4/2009 at 12:30hour while at mitimirefu the customer went to hire their vehicle for carrying language at nyakato to Lumumba street where nyanguge guest house is situated so they did so and when asked to identify that customer, they identified the 1 st accused but failed to know the 2 nd accused this according to PW5 and PW7. Pw6 Witness one JORAM JOHN under oath testified on 16/4/2009 at 15:00 hour he was hired to carry luggage by two people from nyanguge guest house to kanoni bridge and that it was his first time to see the said people but succeeded to identify the 1 st accused and that item was in the boxes. PW8. WARYOBA MATINYI MATIKU, a business man and a resident of musoma dealer on building material on oath told this court he forgot a report that PW1 S items were stolen that was 23/4/2009 and that on 25/4/2009 at 0800 one sokolo was GURES told him to had suspected the 1 st accused who sent him seven customs of vanish so they decided to top the cops who put accused under arrest, therefore PW8 said the informed pw1. With him and the cops in general to bunda where the 2 nd accused said to have other items/cargo.and was arrested to sokolo s shop where under he negotiated for business. PW9.At 1000hours SULA who while at his shop mwigtiobero area in musoma the 2 nd accused asked him to buy vanish and that he agreed to 3 cartons and when cartons brought he discovered stolen so he topped the cops and when the 2 nd accused failed to give him a receipt the said accused took his items back but went to negotiated with PW8 and that was the time the 2 nd accused was booked this according to pw9 statement

4 Pw10 D/COP/HAMD who affirmed and stated that on 25/04/2009 he got a report from PW9 that PW1 s store was broken and item stolen and that at 1200hr found Gerald pulling a wheel borrow having seven cartons of vanish and when asked him on that cargo he stammered and failed to state as to where he was taking that goods hence his arrest and therefore went to Bunda where it was said other items were hidden but nothingfound there. PW11 DALALI CHARLES, from porter on oath said on 16/4/2009 while at kanoni Guest house the 1 st Accused asked him for to Ericks s shop at Bunda and that when offloading there they were copped. PW12, YASINTA JOHN,on oath testified she is an entrepreneur in conjunction with pw1 along Nyerere road in mwanza city and that they do deep their items at the store of one SAMI at Nyakatosokoni area that on 15/4/2009 at about hrs the store owner phoned her to informed her that the store was broken and items stolen. And it was true and she was reported to police station and after on investigation they revealed 1 st accused was involved and the welder men and that at the time her husband pw1 was on safari Pw13 D/CONSTANCE and PW14 D/Cop/MASHAURI Both of them under oath testified that received a report from pw12 that the store was broken and to how things were stolen and found some of them Musoma, The story was like to the pw1 is sequence. The caution statement by 1 st accused which was tendered by the prosecution side though objected by the 1 st accused was taken into amount to reality on the complaints as it was duly thumbed and signed by the 1 st accused who said to had been coerced but could not establish the name on the earlier stage of the case then this court overruled in objection on that reason. However the caution statement by the 2 nd accused which not tendered in court by the prosecution side lacked clear thumb and signature though accepted was not admitted by this court and as such it clear a way to no doubts on him on the reason that even all witness failed to identify him as the one who involved into breaking the store and stolen therein. Then it came for the deface side to have their case heard GERALD ELIAS,TZ,29,Sworn and stated as follows, your honor I do not concern to this case in one way or another because one,the one concern was not booked. That person was innocent my colleague.innocent was working to the complainant your honor,i can say those witness who said I was involved into breaking a store are human being they can speak anything which may be taught or told to them. PW10 failed to point on me when in this court while he said he saw Gerald pulling a wheel borrow in Musoma. I agree to had confessed as for as I was asked questions on the issue at hand.

5 He also challenged the caution statement by 1 st accused which tendered by the prosecution side, said to had been coerced. After that this court was moved to find out whether the accused persons were involved in breaking and stealing? From the evidence adduced, this court is convinced enough on the witness evidence which implicated the 1 st accused on commission of the offence and since the evidence of all witness reasonably touches the 1 st accused and this court was able to relies on such evidence in conviction of the 1 st. On the 2 nd accused this court is moved to believe that the prosecution side lacked clear thumb and signature in the caution statement and though accepted was not admitted by this court and no doubts on him on the reasons that even all witness failed to identify him as the one who involved into breaking the store and stolen therein. From the issue raised that both were involved into breaking the store and stealing therein as so complained the answer would be positive to 1 st accused and negative for 2 nd accused. In that regard this court do convict the 1 st and acquit the 2 nd accused. So reached. Date:25/04/2010 Corum:KAMUGISHA RM Pros: KAMAFA state Attorney Accused: Present State Attorney:The matter is for judgement. Court:The judgement is read. Sentence: KAMUGISHA RM 19/04/2010 KAMUGISHA RM 25/04/2010 Stealing under s.265 of the penal code Cap 16 RE 2002 Punishment imprisonment for seven years and Breaking section 294 (b) of the penal code Cap 16 RE 2002 the punishment of

6 imprisonment for fourteen years. This court do order imprisonment to the accused person to 21 years in in prison Appeal explained. KAMUGISHA-RM 25/04/2010

7 INDIVIDUAL ASSIGNMENT ST.AUGUSTINE UNIVERSITY OF TANZANIA. FACULTY OF LAW COURSE: LEGAL DRAFTING AND WRITING. COURSE CODE: SLW 204 SUBMITTED BY: BERNARD INNOCENT REGISTRATION No: LLB II SUBMITTED TO: Mr. INNOCENT KISIGIRO. Date of submission: 2/12/2013. Question: Judgement writing.