Msabaha v. R., Crim. App. 468-M-70; 30/9/70; Mnzavas Ag. J.

Msabaha v. R.,   Crim.  App.  468-M-70; 30/9/70;  Mnzavas Ag. J.

The appellant was convicted, on his own plea unlawful possession of Moshi c/s 30 of Moshi (Manufacture and Distillation) Act No.62 of 1966. He was sentenced to 7 months imprisonment and appealed against both conviction and sentence on the grounds that (a) the prosecution had not discharged the burden of proving that the substance found in his possession was in fact moshi and (b) a sentence of 7 months imprisonment imposed on an elderly man who was a first offender is excessive.

                        Held: (1) (Distinguishing JUMANNE s/o JUMA v.  R. (1968)

H.C.D. Case No.304; and MAHENDE ISANCHE v. R. (1968) H.C.D. Case No. 422). “The appellant in this case did not only unequivocally plead guilty to being in possession of moshi but he also admitted the facts constituting the offence. This being the position the question of the prosecution to prove (sic) that the liquid was moshi does not at all arise. In these circumstances the accused clearly has no right of appeal against conviction.” (2) (Distinguishing HADIJA d/o OMARI v. R. (1970) H.C.D. Case No.158). “In the present case there is no evidence whatsoever to suggest that the appellant was more of a distributor of moshi than a mere consumer. There is no evidence to suggest that the offence is prevalent in the area……the appellant is an elderly man of 52 years….he readily pleaded guilty of the offence….he has an unblemished record. I feel that this is one of those cases where leniency should have been exercised…… The sentence of 7 months imprisonment is varied to 3 months imprisonment. (3)  Appeal dismissed.