Simon Kungu and Another vs Republic (High Court Criminal Appeal No. 409 of 1972) [1973] TZHC 167 (9 April 1973)

IN' THE HIGH COURT OF TANZANIA

• AT MANZA APPELLATE TURI SDI CTI ON HIGH COURT CRIMIN'kT APPEAL NO. 409/72 ORI GINAI CRIMINAL CASE NO. 227/71 OF THE DISTRICT CiU T OF MTJSOMA -DISTRICT AT MEJSOMA Before E. Katiti, Esq., Senior Residnt Magistrate 1 KUFGU) 2: NYAS ILIGJ' MATHE)

VErLSUS TR 7, RFUOLIC . ................RSFODEI\T • ' (original Pro,secutor) CHARGE: Arson c/s 319 of the Penal Code. Makame Theappellnts, who are brothers, were convicted of Acsor by the Senior Resident Magistrate lOusowa and each was senteiice.d to imprisonment of 24 months On appeal to this court Mr. Matemba advocated for them while Mr. Meela appeared for the Republic. Mr. Teela conceded that the case aaainst the appellants was a border—line one and he did not really pleas for the convictiohs to be upheld. My considered view isthat the allegation against the appellants cannot be said to have been established beyond reasonable doubt. The complainant, his wife,. their daughter, and a daughter—in--law, all told the trial couit that they actually saw the appellants at the house which was set on fire that material niit. The gave meticulous and practically identical descriptions of what the appellants were wearing and I respectifully agree with Mr. .Natemha that, considering the revealed circumstances, including the fact that it was a dark ni:Jit, the learnd trial maaistrate should have been suspicious of, rather than beèr unduly impressed by, the close identity of the descriptions. The evidence was that P..5, the father, was the first to become awaje that the house was on fire and that he immediately raised an alarm before the family ran out to safety and manaad to ut out the fire. It is inconceivable that the appellants should tarry there,. or go back to the scene of their malefaction so soon afterwards. Or if the Arson was only a prelude to some more havoc the appellants had planned to do and which they were determined to carry out despite the family being awa e of their presence, there seems to be no discernible reason why they should then run away,. considering that, as it was said, they were armed with a bow and arrows and, according to Susan, it was clear that her father was afraid of the appellants... Quite sometime must have passed from the moment the first alarm was made to the time the appellants were allegedly seen and recognized, because meanwhile the family had not onl got out of the house but had also managed to put out the fire.

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