Mustafa, J.A. read the following judgment of the Court: The respondent, with eight others, was charged in H the District Court with cattle theft. He was acquitted, and the Director of Public Prosecutions appealed to the High Court against such acquittal. On the application of the Director of Public Prosecutions the I High Court ordered additional evidence to be taken under the provisions of section 151 and section 322(1) of the Criminal Procedure Code. Accordingly one Simon Mangazein testified. The
High Court (Mapigano, J.) heard the appeal and dismissed it. Both the courts below were satisfied that on A the crucial issue of identification the prosecution had failed to satisfy the courts that the animals, some found slaughtered and 10 found alive, were the property of the complainant P.W.2 Rashidi.
The Republic is now appealing to this court from the acquittal, on the main ground that the High Court had B erred in its evaluation of the additional evidence adduced.
We have carefully gone through the additional evidence, and while we do not agree with the first appellate judge that such additional evidence "tends to exacerbate the doubt for it tends to confirm the contention C of the first respondent (i.e. the appellant herein) that he had lawfully purchased the ten live cows", we find the additional evidence vague and inconclusive and does not add anything to the prosecution case in any way. There was evidence on which the courts below could find that the prosecution had failed to D establish its case against the appellant, and the appeal against conviction fails.
However there are two points which call for consideration. Meat from some slaughtered cattle was recovered by the police and sold on order of the court. A sum of Shs.15,140/= was realised from such sale. E The District Court ordered this sum to be returned to the appellant, and such order was confirmed by the High Court. It was in evidence that the appellant had stated that the meat did not belong to him, but possibly to some other person or persons who had used his abattoir for slaughter facilities. The F complainant was unable to identify the meat, and nobody had come forward to claim such meat. In the circumstances it was wrong to have this sum paid to the appellant. We set aside the order to pay the sum of Shs.15,140/= to the appellant, and order that the said sum, if paid to the appellant, be returned by the appellant to the court, and that the sum be forfeited to the Government. G
Similarly the District Court ordered the ten live cattle claimed by the complainant be returned to the appellant. This was confirmed by the High Court. On the evidence adduced, although the prosecution had failed to establish that the complainant was the rightful owner of the 10 head of cattle owing to the H inadequacy of identification, it is equally clear that the appellant had failed to establish that the 10 head of cattle were his property. In the circumstances it was unwise to make any order of restitution. We set aside the order returning the 10 head of cattle to the appellant. I
A The parties could sue civilly for the cattle when the question of ownership could be determined.
In the result, apart from interfering with the order of payment of shs. 15,140/= to the appellant and the order of restitution of the 10 head of cattle to the appellant, the appeal is dismissed.
B Appeal dismissed