Thabit Rashid vs Republic (High Court Criminal Appeal No. 414 of 1977) [1978] TZHC 427 (11 April 1978)

11111111 IN 1 THE HIGH COURT OF TANZANIA AT DAR ES SALAAM APPELLATE JURISDICTION HIGH COURT CRIMINAL APPEAL NO. 414 OF 1971 ORIGINAL CRIMINAL CASE NO. 88 OF 1977 (OF THE DISTRICT COURT OF BAGAMOYO DISTRICT AT BitGAMOYO ) Before Aihaji M. H. Omarj Esq., District Magistrate THABIT RASHID ,.po,O.e...eee..op.oee.00000qooqO•oee000•oOO APPELLANT Versus THE REPUBLIC ........ • . . . . . . . . 4 • ••• RESPONDENT CHARGE: Setting fire to crops c/s 321(a) of the Penal Code Cap. 16 of Laws. J U D..GE M EN.T MAKAME J. — A youth called BOSCO THABIT pleaded Guilty on fifteen different counts of setting fiè tj cropsi contrary to section 321(a) of the Penal Code, He was sentenced to pay in of Shs.100/= or to serve two months in default on each count, the sentences to run consecutively as is indeed the practice. The crops damaged were allegedly worth over Shs11OOO/ but, surprisingly enough, no compensation order was made * The convict was said to be a school boy in Standard V at a Primary School in Bagamoyo District. The learned District Magistrate f cit that the youth would not be able to pay the fine so he required the appellanti the youth's stepfather, to step into the convict's shoes. He purported to act under section 21(1) of the Children and Young Persons Act, Cap. 13. This was clearl' wrong and, as Mr. Marmo for the Republic conceded before this court, the above—quoted law cannot apply in the instant case. Section 21(1) which empowers the court to order a convict's parent or guardian to pay a fine, compensation or costs, is applicable only if the convict is "a child or young person". The convict in this case was neiI;her, at the material time, because he was 17.

"A child" under the law is a person under the age of twelve years while "young person" is "aperson who is twelve years of age or upwards and under the age of sixteen years". The order involving the present appellant and leading to his penitentiary confinement was therefore illegal. In any event there were two other aspects which the learned District Magistrate overlooked. The first one is that there was no evidence to suggest that the appellant had conduced to the youth's roasting of the cashew-nuts which caused the fire to escape and cause the havoc, or that he had neglected to exercise due care of the youth. The second matter, connected with the first, is that appellant was given no opportunity of being heard before the order was made. This is a pre-condition under subsection (2) of the said Section 21. • The foregoing is why I allowed the appeal when it came up for hearing and ordered the appllant's release. (L. M. MAKAME) JUDGE Dar es Salaam: 11th April, 1978