Republic vs Munene & Another (Criminal Appeal 109 of 2002) [2004] TZCA 30 (5 October 2004)

IN
THE
COURT
OF
APPEAL
OF
TANZANIA
AT
ARUSHA

(CORAM:
LUBUVA,
J.A.,
NSEKELA,
J.A.,
And
KAJI,
J.A.)

CRIMINAL
APPEAL
NO.
109
OF
2002

BETWEEN

1. JOSEPH
   MUNENE
   

2. ALLY
   HASSANI
   APPELLANTS

AND

THE
REPUBLIC RESPONDENT

(Appeal
from
the
conviction
of
the
High
Court
of
Tanzania
at
Moshi)

(Munuo,
J.)

dated
the
15^th
day
of
February,2000
in

Criminal
Appeal
No.
33
of
1997
JUDGMENT
OF
THE
COURT

KAJI,
J.A.:

This is a second appeal.
In the District Court of Rombo at Rombo, JOSEPH MUNENE and ALLY
HASSANI who are hereinafter referred to as the 1^st
and 2^nd
appellants, respectively were charged with and convicted of armed
robbery contrary to sections 285 and 286 of the Penal Code, Cap 16.
They were each sentenced to 32 years imprisonment and 12 strokes of
the cane. They were also ordered to pay the complainant, PETER
NDELIVA (PW2), Shs. 8,600/= which they were alleged to have robbed
him. On appeal to the High Court their appeal was dismissed, hence
this appeal.

At the trial the
prosecution adduced evidence to the effect that, on 1^st
August, 1996, at about 6.30 a.m., Peter Ndeliva (PW2) left his home
at Kitowo Olele Mashati for Kwamakorosha Village to draw water. He
had a bicycle, a 60 litre container and Shs. 8,600/= with which he
had intended to purchase maize. He left riding on the bicycle along
Njaa road. The well at Kwamakorosha Village where he was going to
draw water was about 5 kilometres from his home.

A short distance from
his home he met he appellants and a third person who later escaped.
The 1^st
appellant was armed with something resembling a firearm which later
turned out to be a toy pistol. The 2^nd
appellant had a matchet (panga). The third person who later escaped
had a gun. The 3 bandits stopped him by aiming the gun and the toy
pistol at him and ordered him to give them all the money he had. They
searched him and took the 8,600/= he had in the pocket of his pair of
long trousers. The 2^nd
appellant cut the ropes which had tied tightly the 60 litre container
on the carrier of the bicycle. They left while one of them cycling
carrying the other two one of them carrying the container. PW1 ran
after them while raising an alarm. His alarm was responded to by
villagers who included JACOB MONINGO (PW3). They all ran after the
appellants and the 3^rd
bandit. When the bandits arrived at a stream they bumped into it and
fell down thereby damaging the bicycle. They abandoned it together
with the container and the matchet and took to their heels towards
Tanzania/Kenya border. PW2, PW3 and other villagers pursued them. On
the way the 3^rd
bandit who had a gun fired in the air to scare the pursuers. It would
appear it was through this threat that he managed to escape. But PW2,
PW3 and other villagers continued running after the appellants who
crossed the Tanzania/Kenya border into Kenya and took refuge in a
Masai boma. The owner of the boma LIKIMBIRAIWAI NGATOYA (PW4)
apprehended the appellants assisted by some Morani. They were handed
over to PW2, PW3 and other villagers who took them to the stream
where the bicycle, container and matchet were. The appellants were
later taken to Mkuu Police Station and later to Court.