- 18/7/ /8/2008 JUDGMENT. The Appellant Mwajina Bernard was charged with theft. charged by the Court of the Resident Magistrate at Kisutu in

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1 [Original Criminal Case No. 767 of Kisutu Resident Magistrates Court Dar es Salaam before A.W. Mahay, RM.] Date of last order Date of Judgment - 18/7/ /8/2008 JUDGMENT SHANGWA, J.: The Appellant Mwajina Bernard was charged with theft cis 265 of the Penal Code. He was convicted of the offence charged by the Court of the Resident Magistrate at Kisutu in Criminal case No. 767 of 2002 and sentenced to 5 years imprisonment. He was dissatisfied with both conviction and sentence. He engaged the services of Mr. Kifunda, Advocate

2 2 who drew and lodged a memorandum of appeal on his behalf. There is only one ground of appeal which was raised on behalf of the Appellant. It reads as follows and I quote:- " That the trial court grossly erred both in facts and laws to convict the Appel/ant basing on the evidence of a single evidence of the complainant without hearing the evidence of arresting police officer and that of the eye witness of theft." The appeal was argued by way of written submissions. It was contended by Mr. Kifunda on behalf of the Appellant that the prosecution did not prove the case beyond reasonable doubt. He submitted that the evidence of P.W.! Farida Almasi who said that she was told by one Robert that

3 3 he stole her four carpets from her shop is hearsay. He further submitted that the police officer who is said to have arrested the Appellant and took the four carpets which were tendered before the trial court as evidence was not summoned to appear and testify on behalf of the prosecution. The learned State Attorney, Mr. Mchoke who replied to the submissions made by Mr. Kifunda, Advocate on behalf of the Appellant did not support the conviction and sentence which were imposed by the trial court on the Appellant. He said that none of the prosecution's witnesses testified to have seen the Appellant stealing the four carpets from the Appellant's shop. I have gone through the proceedings of the trial court and found that the prosecution closed its case after the

4 4 testimony of P.W.! Farida Almasi a business woman who told the trial court that on , she left the Appellant and one Abdallah Abdallah at her shop and went to the Mosque to pray. She said that both of them were doing business at her shop as fridge and freezer technicians. She went on to say that when she left her shop for prayers at the Mosque, she left behind her hand bag, wallet and mobile phone. She said, when she came back to her shop which is at Kinondoni, she found a message in her phone which read "Tafadha/i mama rudi dukani kuna kitu cha kusikitisha". Translated in English, the said message would read as in Kiswahili as follows:- follows:-

5 5 "Please Madam come back to the shop there is something unpleasant" She continued to say that when she read the said message she phoned one Robert who told her that the Appellant entered into her shop and stole four carpets from therein valued at shs.420,ooo/= and put them in a taxi and went away with them. Thereafter, she said, she rang to the police who went and arrested the Appellant with the four carpets and restored them to her. At the beginning of his judgment, the trial Magistrate A.W. Mahay addressed himself to the provisions of S. 143 of the Evidence Act, 1967 which provides that no particular number of witnesses shall in any case be required for the proof of any fact. He then interpreted the said provision to mean that the testimony of a single witness if believed is

6 6 sufficient to establish any fact. Upon such interpretation, he went on to believe the testimony of P.W.l Farida Almasi who was a single witness called by the prosecution and deemed it sufficient to establish the charge of theft which was preferred against the Appellant. However, the reasons as to why the trial Magistrate believed the testimony of P.W.l are not shown in his judgment. For instance, no remark as to P.W.l's demeanour was made after recording her testimony. Whereas it is true that the court may base a conviction on the testimony of a single witness if such witness is a credible witness and has direct evidence to offer, in this particular case, P.W.l did not offer direct evidence to the trial court. Her evidence was mere hearsay. She testified on what she had been told by one Robert that the Appellant stole her four carpets from her shop. The said Robert was not called by the prosecution to come and testify before the

7 7 trial court. This means that the trial Magistrate was wrong to believe the testimony of P.W.l which was nothing but hearsay. Another short fall in the prosecution's case which was not weighed by the trial Magistrate and which was pointed out by the learned State Attorney, Mr. S. Machoke is that the police officer who arrested the Appellant and seized the four carpets from him as per the testimony of P.W.l was not called to testify and give details in respect of the place from where he found those carpets after having been led there by the Appellant if at all he was so led by him at the time of his arrest in connection with the offence charged. In general, I agree with the learned counsel for the Appellant, Mr. Kifunda and the learned State Attorney for the Respondent, Mr. S. Machoke that the prosecution did not

8 prove its case beyond reasonable doubt and that the trial Magistrate erred both in law and fact for convicting the Appellant on hearsay evidence which is inadmissible in law. For these reasons, I hereby quash the trial court's conviction, set aside the sentence which was imposed on him and order that he should be released from prison henceforth unless otherwise is detained there on another rrt~ /' OIlT o~'" 1,0 ~ l v "f ~ "'., ~'\\i -s" A. Shangwa b -' ~\ l"\ Z ~..~~ 1'\\ JUDGE ~.,.'f,~ Z --- l.&i.()).\ :.. - r ~~;?:;~d c:~r~8~~~~:lh in open dayof August, 2008in the presence of the Appellant and Mrs Stella Kachenche for Mr. S. Machoke for the Respondent. A~Sha~wal~ JUDGE