Sylvester Edgar Mwaoka v. Republic, Criminal app no 44 of 2005 (robbery with violence)

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

(CORAM:  LUBUVA, J.A. MUNUO, J.A., And RUTAKANGWA, J.A.)

CRIMINAL APPEAL NO. 44 OF 2005

SYLVESTER EDGAR MWAOKA……………………………………….APPELLANT

VERSUS

THE REPUBLIC………………………………………………………..RESPONDENT

(Appeal from the decision of the High Court of Tanzania at Mtwara)

(Lukelelwa, J.)

dated the 17^th day of March, 2005

in

Criminal Appeal No. 80 of 2004

REASONS FOR ORDER

11 & 19 March, 2008

MUNUO, J.A.:

         The appellant, Sylvester Edgar Mwaoka, was, in Criminal Case No. 28 of 2004 in the District Court of Masasi, convicted of robbery with violence c/s 285 and 286 of the Penal Code, Cap 16 R.E. 2002.  It was the case of the prosecution, that on the evening of the 03.02.2004 at Songambele Village within Masasi District in Mtwara Region, the appellant seized from the complainant, one Daudi Salum Mnamba, a bicycle, make Swala and assorted goods valued at a total of sh. 147,600/= and during the stealing, used actual violence to obtain and retain the said property.  Having been convicted by the trial court, the appellant unsuccessfully lodged Criminal Appeal No. 80 of 2004 in the High Court of Tanzania at Mtwara.  Thereafter, the appellant lodged the present second appeal.

         During the hearing, the appellant was unrepresented.  He had filed a memorandum of appeal comprising of six grounds of appeal which can be summarized into three namely:

(a)      that he was not found in possession of the complainant’s stolen property;

(b)      that the search at his house was no properly conducted; and

(c)       that he was not correctly identified at the scene of crime

so the High Court should not have upheld the conviction and sentence of 15 years imprisonment.

         Mrs. Hilda Kabisa, learned Principal State Attorney, did not support the conviction.  She observed that the Konica film and 2 pieces of skirt material recovered during the search could belong to anyone because the said property had no peculiar identification marks to establish that they belonged to the complainant.  Furthermore, the learned Principal State Attorney noted, whereas P.W.1 and P.W.2 claimed that 2 skirts and a Konica film belonging to P.W.1 were recovered during the search, the search warrant, No. 12065, shows that the police recovered not 2 skirts but 2 pieces of cloth, 1 film (Konica), a panga and some documents.  The recovered articles, the Principal State Attorney pointed out, did not have any identification marks of the complainant.  In the premises, Mrs. Kabisa urged us to reverse the decision of the High Court for lack of evidence to sustain the conviction.

         In the light of the above circumstances we were satisfied that the evidence against the appellant was too scanty to support a conviction.  We accordingly allowed the appeal, quashed the conviction, set aside the sentence and ordered the release of the appellant henceforth unless he was detained for other lawful cause.  We reserved our reasons which we hereby give.

         DATED at DAR ES SALAAM this 19th day of March, 2008.

D. Z. LUBUVA

JUSTICE OF APPEAL

E. N. MUNUO

JUSTICE OF APPEAL

E. M. K. RUTAKANGWA

JUSTICE OF APPEAL

         I certify that this is a true copy of the original.

(S. M. RUMANYIKA)

DEPUTY REGISTRAR

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