Kambi and Another v. R. Crim. App. 73-Dodoma-71; 16/2/72; Mnzavas, J.

 

Kambi and Another v. R. Crim. App. 73-Dodoma-71; 16/2/72; Mnzavas, J.

The two appellants were convicted of cattle theft c/ss 268 and 265 of the Penal Code and each sentenced to 3 years imprisonment and 24 strokes corporal punishment. The complainant (PW.1) had his ten goats stolen on 5/7/71 as they were being grazed by his children. He approached his cell-leader (PW. 4) and reported to him what had happened and mentioned the two appellants as the people

He suspected as the thieves. The appellants’ house (both apparently lived in one homestead) was searched and there a skin of a recently slaughtered goat was found. The complainant identified the skin as having marks on it similar to the marks he had made on his missing goats namely three cuts of the lips of the ears. He had also earlier told the cell leader that one of the he-goats was black and white in colour. The skin found in the appellant’s home-stead bore these marks and was black and while in colours. On being interrogated as to how they came to be in possession of the skin which answered the description given by the complainant the two accused admitted having stolen the goat whose skin was in their house but denied stealing the remaining nine goats. In their joint memorandum of appeal they have, inter alia, argued that the trial magistrate, should not have admitted the alleged confession as it was made “outside a court of law” and before a cell-leader.

            Held: (1) “I fail to see the argument regarding the question – ‘the confession being made out of court’ as most confessions are made out of court. When dealing with the question of confessions courts are not so much concerned with the place where an alleged confession was made, they are more concerned with the person to whom a confession is said to have been made ….. The question of admissibility of a confession made to a cell-leader was amply dealt with by Biron J. in Thabit Ngalile vs. R.(1968) H.C.D. case No. 182 where the learned Judge held ….. They (cell-leaders) have in fact no greater powers of arrest than those of an ordinary citizen … they should not be equated with police officers for the purposes of section 27 of the Evidence Act, and the confession made to the ten house leader was admissible. The confession to the cell-leader was therefore rightly admitted as evidence against the appellants.” (3) “The appeals against conviction are incompetent and they be forthwith summarily rejected”.