Boniface Mboje & Another vs Republic [1991] TZHC 24 (18 October 1991)


Sekule, J.: The two appellants namely Boniface Mboje and Paschal Mrembe hereinafter to be referred to as the G 1st and 2nd appellant respectively together with two other person were charged in the District Court of Shinyanga District of the offence of stealing contrary to section 265 of the Penal Code.
It was alleged that they jointly and together stole an assortment of carpentry tools belonging to one Doto Shija. The H appellant was the 2nd accused of the trial and the 2nd appellant was the 4th accused.
The facts of case are briefly that on the 18th of October, 1988, PW.1 Doto Shija discovered that his carpentry tools box had been stolen and that a couple of days later one Nkwabi Sanga, PW.4 came and informed him that the 1st I appellant together with the person who was the 1st accused were selling carpentry tools. PW.1 Doto Shija went to the place where the appellant was said to be

selling the carpentry tools. And he found the items they were selling were part of his stolen tools. And he duly A identified the items.
After the close of the persecution case at the trial, the 1st appellant did change his plea of not guilty to the charge to that of guilty to the charge.
The change of plea was accepted and the trial court went on to find him guilty as charged and convicted him B accordingly on his own plea of guilty.
The rest of the 1st Appellant's co-accused proceeded to defend themselves. The 2nd appellant was at the end convicted. Both appellants were each sentenced to six years imprisonment. The 1st appellant is now appealing C against sentence.
The 1st appellant has contended in his petition of appeal that as he pleaded guilty and served the prosecution's time, this factor should have been considered in assessing the sentence that was to be imposed against him. D
He also claim to have been a first offender and that he is a young person, he seems to have been 22 years of age at the time of his conviction.
Mr. Bilaro, learned Counsel who appeared for the Republic was of the view that the sentence was rather excessive. E I agree. The sentence was excessive in the circumstance of the case. The facts that appellant changed his plea to one of guilty should have been considered so is the fact that he was a first offender and a young person.
I am therefore of the considered opinion that this appeal has merits. I would and do hereby set aside the sentence F that was imposed against the 1st appellant. And I substitute therefore the sentence of three years imprisonment. It is so ordered.
On the 2nd appellant who is appealing against conviction and sentence, I agree with the learned State Attorney that G there was no cogent evidence connecting him with the crime.
He was simply mentioned by his co-accused. This however was not enough to found a conviction against the 2nd appellant. Section 33 of the Evidence Act, 1967 refers. And the 3rd accused's statement which implicated the 2nd appellant needed to be also materially corroborated in the circumstances of the case. As a matter of fact, the trial H court, appeared to have convicted him simply because he chose to say nothing in his defence, when the options that were open to him were pointed and explained at the close of the prosecution case. It is true a court can draw an adverse inference on an accused's choice of silence. But this alone cannot be a basis of a I

A conviction in the absence of evidence establishing an accused's guilt. The 2nd appellant's conviction is with respect, therefore not well founded. The appeal is allowed.
The conviction is quashed and the sentence is set aside. The appellant is to be released forthwith unless otherwise lawfully held.
B Order accordingly.


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