Hamza s/o Athumani v. R., Crim. App. 174-A-72; 1/9/72

Hamza s/o Athumani v. R., Crim. App. 174-A-72; 1/9/72.

            BRAMBLE, J. – The appellant was convicted of the offence of store-breaking and stealing contrary to sections 296(1) and 265 of the Penal Code. He was charged jointly with two other persons who pleaded guilty, were sentenced and later gave evidence for the prosecution.

            The facts which are not in dispute are that on the 6^th March, 1972 a store belonging to the Suwa Ujamaa Village was broken into and three bags of beans stolen. On being questioned two accused in the case confessed to having committed the offence and named the appellant as a third party to it …. [The court discussed the evidence and then continued]. The main point in this appeal, however, is that there has been no corroboration of the evidence of the accomplices. These accomplices cannot corroborate one another. The prosecution had an opportunity to get some such evidence since P.W. 3 said that the appellant had sent his brother to call him. This brother was not called as a witness. Mr Kinabo for the Republic submitted that section 142 of the Evidence Act can be applied. It states that a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.  In the case of R. v. Asumani Logoni s/o Muza (1943) 10 E.A.C.A. 92 it was held that there must be exceptional circumstances to justify a departure from the general rule that a conviction on the uncorroborated testimony of an accomplice ought not to be upheld. This was a case from Uganda where there is a section in the Uganda Evidence Act corresponding to Section 142 of the Tanzania Evidence Act. What are exceptional circumstances must be determined on the merits of each case. In the case of Kinchingeri and others v. R., (1909-10) 3 EALR 1 it was held that because the witness made no attempt to shield themselves and in fact believed that they were full justified in acting as they did, because their act had the sanction of tribal custom, the circumstances were exceptional and justified a conviction on that evidence without corroboration it is not possible to lay down a general rule as to what should be considered special circumstances.

            The learned magistrate did not direct himself on the necessity for corroboration as a rule of practice. I can find no exceptional circumstances in this case and I allow the appeal, quash the conviction and sentence and order that the appellant be immediately released.