Tatu Taijiri v. R. Crim 335-D-70; 24/6/70; El-Kindy, Ag. J.

Tatu Taijiri v. R. Crim 335-D-70; 24/6/70; El-Kindy, Ag. J.

The police were looking for stolen cattle. When they arrived at Mpembe Village they saw the appellant driving a heard of cattle. They stopped the appellant for the purpose of inspecting the herd; since it was dark the appellant was ordered to drive the herd to the police station for examination. The appellant, it was adduced, gave one Inspector Timothy Shs. 100/- as an inducement or reward for Timothy’s not arresting or taking him to police station on suspicion of cattle theft. The appellant was convicted of corrupt transaction c/s. 3(1) of the Prevention of Corruption Ordinance Cap. 400. On appeal it was argued that the magistrates wholly elide upon projection witnesses and did not take into consideration the defence evidence.

            Held: (1) From (the) evidence it is clear….. that the appellant was not arrested, as the charge sheet suggested, now was he suspected of any offence although the police officers wanted to check his herd …. The appellant offered him one currency not of 100/- to induce him to release him, but specifically… So that he is not taken to police station. I would agree that tit appears that there was no reason for the offer of money since he was neither arrested nor suspected of specified offence …..” (2) “The main ground of appeal is not lack of evidence on which such conviction could have been based, but on the proposition that the learned magistrate had misdirected himself on this approach and reasoning in this case. The particular which is alleged to contain the misdirection is this:- ‘Accused admits that it was his first time to meet Inspector Timothy. That being so it would be difficult for (him) to fabricate a case against accused without any reasons. I do fine that inspector Timoth. That being so it would be difficult for (him) to fabricate a case against accused without any reasons. I do find that Inspector Timothy could not fabricate a case against accused and he has told the truth. I find no substance in accused denied. I convict the accused as charge.” Taking the approach of the learned magistrate as it stands, it seems to me that the approach is not correct as the reasoning is not necessary one. To say that because there were circumstances which made it difficult for a witness to tell lies against an accused, then that witness is telling the truth and the defence has no substance, is clearly an incurably wrong approach. The reasoning clearly shows that the consequences are not necessary. At it has been held by this court in the case of Lokhart – Smith v. R. (1965) E.A. p. 211 at 217

And the case of Moshi d/o Rajabu 1967 – 68 H.C.D. No. 384, this approach is incurably wrong and cannot be corrected at this stage as that would amount to resumption of the magistrate’s job. Furthermore… The learned magistrate did not consider the evidence of the defence witness. His evidence contradicted the evidence of the prosecution witnesses in a material way, as he said he did not see any money being given to the police officers. This court cannot imagine what would have been the effect of the evidence of this witness had the learned trial magistrate considered it. I would agree that there was more than enough material on which the conviction could have been upheld had the learned trial magistrate approached the case correctly. Having arrived at this conclusion, I find there is no need to consider the alternate arguments on the question of the sentence.” (3) Appeal allowed.