Mwita Juma @ Machango vs Republic (Criminal Appeal No. 668 of 2023) [2026] TZCA 129 (26 February 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA ( CORAM: NDIKA. J.A.. FIKIRINI. J.A. And ISMAIL, J.A.l CRIMINAL APPEAL NO. 668 OF 2023 MWITA JUMA @ MACHANGO ................................................. APPELLANT VERSUS THE REPUBLIC................................................................... RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Musoma) (Komba, J.) dated 12th day of December, 2022 in Criminal Sessions No. 23 of 2022 JUDGMENT OF THE COURT 17th & 26th February, 2026 ISMAIL. J.A.: Mwita Juma @ Machango, the appellant, is seeing out his lengthy custodial term, imposed on him by the High Court, on conviction of offence known as an act intended to cause bodily harm. As he serves his sentence, he has taken a ladder up to this Court, protesting his innocence. Facts of the case as gathered from the record of appeal are briefly to the effect that: on 22n d September, 2020, the appellant, then a form three student at Kiagata Secondary School, was called by his teacher, Majogoro John, the victim (PW1). The call was intended to enable the victim to administer a punishment following the appellant's involvement i in an act of indiscipline. As PW1 hit him with a stroke of a cane the appellant resented. Unbeknown to PW1 and PW2 who was also present, the appellant was armed with a machete that he stashed in his trousers. Enraged, he pulled it out and stabbed one of PWl's shoulders. His second blow was aimed at the victim's head but he fended it, landing, instead, on the left arm. The second hit was so ferocious that it severely hit the arm and left it hanging. After the attack, the appellant attempted to flee but teachers and fellow students pursued him. They got the better of him after a long chase of about 4 kilometres. He was put under restraint and conveyed to Kiagata Police Station. Meanwhile, with the help of fellow teachers and students, PW1, reported the matter to Kiagata Police Station from which he was issued with a PF3 to access medical services at Kiagata Health Centre. He was immediately transferred to Musoma Government Hospital where he was hospitalized for a couple of days. Given the magnitude of the injury, a decision was made to refer PW1 to Muhimbili Orthopaedical Institute in Dar es Salaam where he was hospitalized for nearly seven months. During his confinement in the hospital bed, he underwent an operation through which some metal objects were planted to support his savaged arm. 2 These metals were removed in February, 2022 but the injury left PW1 with permanent incapacity that he continued carrying. The appellant was ultimately arraigned in court, facing the charge on the offence of committing an act intended to cause grievous harm. The prosecution's case was composed of the testimony of two witnesses. At the closure of the prosecution's case, the learned trial Judge was convinced that the testimony adduced to him did enough to establish a prima facie case. She therefore invited the appellant to put up his defence. The appellant's defence was a mixture of denial and admission. While on one side he said he did not remember maiming him with a slasher or at all, he subsequently changed tact and contended that he did that, once, but in self-defence. In the decision that is now under the cosh, the learned trial Judge was convinced that, based on the prosecution's eye witnesses whom he considered to be reliable and credible, the appellant's wrong doing had been established. Weighing the weapon used, force applied and the number of wounds inflicted, she was left in no doubt that there was an intention to maim. In the end, the appellant was convicted and sentenced to imprisonment for 30 years. Besides the custodial sentence, the 3 appellant was condemned to payment of compensation in the sum of TZS. 5,000,000.00. The appeal before us is predicated on three grounds of appeal, paraphrased as follows: One, that no reasons were given for change of magistrates and Judges during committal and trial. Two, the offence charged was not proved beyond reasonable doubt. Three, award of damages was not backed by proof of any damage suffered. At the hearing before us, the appellant enjoyed the services of Mr. Daud John Mahemba, learned advocate. His counterparts for the respondent were Ms. Grace Michael Madikenya, learned Senior State Attorney who, together with Ms. Beatrice Timothy Mgumba and Mr. Zarubabel Laurent Ngowi, learned State Attorneys. Mr. Mahemba began his submissions by abandoning ground one of appeal, choosing to predicate his appeal on the remaining grounds. With respect to the first ground, the contention by Mr. Mahemba was that PW1 and PW2, the only witnesses for the prosecution did not prove the ingredients of the charge. He contended that, while the sustenance of an injury by PW1 was not a matter of serious contention, a cloud hung on the gravity of the injuries allegedly sustained and how they endangered life or severely caused permanent disfigurement. He asserted that, neither 4 PW1 nor PW2 stated the size of the wounds, depth and their number. He contended that PW1 did not state with any semblance of specificity the areas which were intended by the appellant to be targets of the attack. The learned counsel took a swipe, yet again, at the testimony of PW1 that stated that the area which was treated was an arm while in his earlier testimony he stated that his shoulder was also injured. In his contention, a medical report, in the form of PF3 or any other documentary description would tell, with precision, the gravity of the injury sustained by PW1. Absence of this testimony meant that mens rea was not proved. Mr. Mahemba further contended that the testimony of PW1 and PW2 that the trial court relied upon was disharmonious with each other on the number of wounds inflicted by the appellant. Whereas PW1 stated that they were two, PW2's contention is that PW1 carried only one wound. He urged the Court to find merit in this ground of appeal and allow it. Ms. Madikenya was fiercely opposed to her adversary's argument. In her contention, the case against the appellant was amply proved. She contended that there is no dispute that the appellant sustained injuries which were inflicted by the appellant. This, she argued, had been testified 5 by PW1 and corroborated by PW2 who confirmed that the attack left PW1 with a hanging arm. The learned counsel contended that this proved that the injury was exceedingly grave. She drew our attention to the record of appeal in which PW1 testified (at page 47) that the attack bore him a permanent disfigurement. She implored us to be guided by our decisions in Masalu Kayeye v. Republic [2020] TZCA 302; and Enock Kipela v. Republic [1999] TZCA 9. While referring to the latter decision, Ms. Madikenya argued that, the amount of force applied, parts of the body targeted, number of blows, kind of injuries inflicted, and the appellant's conduct after the incident were some of the key issues that prove that the appellant was clothed with mens rea. It is clear, at least to the learned counsel that the offence with which the appellant was charged is covered under the provisions of section 222 of the Penal Code, Cap. 16 R.E. 2023. It provides that: "222. A person who, with intent to maim, disfigure or disable any person or to do some grievous harm to any person or to resist or prevent the lawful arrest or detention o f any person- (a) unlawfully wounds or does any grievous harm to any person by any means whatsoever; (b) N/A; (c) N/A; 6 (d) N/A; (e) N/A; (f) N/A; or (g) N/A, commits an offence, and shall be liable to imprisonment for life." From the architecture of this provision, conviction can only be properly grounded if, in addition to proving wounding or inflicting a grievous harm, the prosecution is able to prove that the assailant had the intention to maim, disfigure, or disable the person at whom the attack was aimed. This has to be proved without any reasonable doubt. As to what constitutes grievous harm, section 5 of the Penal Code states as follows: 'grievous harm"means any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health or which is likely so to injure health , or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, member or sense." What comes out clearly is that, successful proof of this offence requires the prosecution to establish an actus reus which constitutes the act of wounding or causing grievous harm, and mens rea which is the intent to maim or disfigure or disable another person - see: John 7 Machera @ Mwasi @ Mwita @ Machera @Mwasi v. Republic [2024] TZCA 1247. The question we are invited to address is whether the available testimony proved the existence of these ingredients. We wish to state, for a start, that there is no dispute that the victim, PW1, sustained severe wounds from an attack that was carried out by the appellant. The appellant himself has admitted to this fact. Where the parties have varying views is on the intent of the attack. Leaving aside the oscillating nature of the appellant's testimonial account, it is quite clear, through the testimony of PW1 and PW2, which we find coherent and credible, that the appellant, who was involved in an indiscipline came to school, or at least in class, while armed with a weapon that he stashed in his trousers. This implies that he anticipated that there was going to be a show down which would culminate in a fully fledged scuffle which would require the use of the weapon with the intention of maiming or disfiguring or disabling PW1. In other words, the appellant was on a "woe betide" mode when he went to meet PW1. This pre-meditation infers intent, the mental element of the offence. Intent of the appellant in this case lies, as Ms. Madikenya admirably argued, in the choice of the parts targeted for attack and the intensity and number of blows. It is not hard to see what the blow which left the victim's arm hanging would do if, as intended, landed on the victim's head. 8 In this case the intensity of the blows, we think, is proved by the fact that the attack left the victim changing hospital beds and admitted to multiple theatres to repair the damage that eventually left him with permanent disability. Mr. Mahemba has decried the trial Judge's reliance on the testimony of PW1 and PW2 alone without any medical evidence that would provide a scientific guide on the magnitude of the injury suffered. We consider this contention specious. We are of the view that these are matters to be decided by the court. It is its duty. We are fortified in our position by the decision of the High Court in Sebastian Gilbert v. Republic (1970) H.C.D. n. 281, which we cite with approval. It was held in that case that: "It is not for the medical officer to decide whether the harm is grievous harm. This is the duty o f the court . " As we find nothing of note in Mr. Mahemba's argument in this ground, we are constrained to hold that we find nothing untoward in the learned trial Judge's finding and conclusion that the offence with which the appellant was charged was proven. We are not convinced, one bit, that the case for the prosecution was deficient. We hold, therefore, that this ground unmeritorious and we dismiss it. In his submission in respect of the second ground of appeal, Mr. Mahemba has criticised the award of compensation to the victim of the 9 appellant's mighty force. While the learned counsel has no qualms about the quantum awarded, his consternation resides in the award itself, terming it unjustified as no proof has been availed by the prosecution to prove that there were costs incurred as a result of the incident. In his wisdom, production of payment receipts and any other forms of evidence would justify the award of compensation. Ms. Madikenya has played down her counterpart's contention, terming it a misconception. She argued that compensation in criminal cases is not akin to award of damages in civil cases, the latter of which would require evidentiary material to prove damage. She submitted that compensation in criminal cases is anchored in section 368 of the Criminal Procedure Act, Cap. 20 R.E. 2023 (CPA) which vests powers in courts to order compensation to victims besides other penal sanctions as provided by law. She urged us to be guided by what we held in Fosca Lukas Lutengano v. Republic [2025] TZCA 229. We entirely agree with Ms. Madikenya. Award of compensation in criminal cases is significantly distinct from what the parties plead and are awarded in civil cases. In the criminal regime, compensation is in the form of reparation and its underlying theory is also dissimilar. In Fosca Lucas Lutengano v. Republic (supra) cited to us by Ms. Madikenya, this Court sufficiently dealt with the aspect of compensation and the underlying 10 theory. It began by quoting an excerpt from an Indian case of Hari Singh v. Sukhbir Singh & Others (1988) 4 SCC 551, wherein the Supreme Court reasoned as follows: "It may be noted that this power o f Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminaljustice system. It is a measure o f responding appropriately to crime as well o f reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminaljustice system." The Court concluded that, in criminal cases, award of compensation is a way of reparation that arises from the acknowledgement that the victim has suffered a damage. We fully subscribe to this reasoning, and add that, this is an award which is intended to recompense the victim of the accused's heinous acts which have resulted in material loss or personal injury. This is the spirit of section 368 of the CPA which stipulates as follows: "368.-(l) Where an accused person is convicted by any court o f any offence not punishable with death and it appears from the evidence that some other person, whether or not he is the prosecutor or a witness in the case, has suffered material loss or personal injury in consequence o f the offence committed and that substantial compensation is, in the opinion o f the court, recoverable by that person by civil suit, the court may, in its discretion and in addition to any other lawful punishment, order the convicted person to pay to that other person such compensation, in kind or in money, as the court deems fair and reasonable." As Ms. Madikenya submitted to us, rightly so, in our considered view, the order for payment of compensation which includes determination of the quantum to be imposed are matters which are in the remit of the trial court and are dictated by the circumstances surrounding a particular case. While in some cases compensation may be in addition to the punishment meted out, in others, such compensation may be in substitution of other imposable punishments. This is what section 31 of the Penal Code provides. It stipulates: "31. In accordance with the provisions o f section 368 of the Criminal Procedure Act, any person who is convicted o f an offence may be adjudged to make compensation to any person injured by his offence and the compensation may be either in addition to or in substitution for any other punishment . " It is our conviction that the learned trial Judge was perfectly within her confines when she ordered payment of compensation in addition to 12 the custodial sentence imposed on the appellant. The contention by Mr. Mahemba on this ground is all but hollow. We reject it out of hand and find this ground unmerited. As we wind down, we are constrained to cast an eye on the sentence imposed on the appellant. As stated earlier on, besides the compensation, the appellant was served with a whopping thirty-year custodial sentence. As we delve into this matter, we wish to state, at the onset that, there is nothing legally impugning in the imposition of such sentence, considering the fact that the offence attracts a maximum of life imprisonment. We are aware that, when considering the sentence to be imposed on an offender, courts take into consideration the sentencing policy as well as extenuating circumstances. This persuasive position was lucidly encapsulated by the Supreme Court of Zambia in Abednego Kapesha & Another v. The People - Select Judgment No 35 of 2017, in which it was held: "The issue o f extenuating circumstances is aii about the sentencing policy o f courts. There is no doubt whatsoever that one o f the [principal] objectives o f criminal law is the imposition o f adequate, and proportionate sentences, commensurate with the nature and gravity o f the crime and the manner in which the crime was committed... in exercising such discretion, however, courts are bound to consider a number o f principles which 13 include proportionality, deterrence and rehabilitation.... "[Emphasis added]. In our view the sentence imposed by the trial court was mostly informed by the gravity of the offence, the manner of the commission of the said offence and other attendant circumstances. What skipped the mind of the learned trial Judge is the deterrence and rehabilitation side of the imposition. We think, for a 19-year-old schooling boy, this lengthy sentence has ignored the possible downsides that it may cause to his life. It extinguishes all his dreams that a youth of his age would have. While the punishment will have taught him a lesson and make him pay for the wrongs he did, the damage that it will do to his life, if fully served, will have left an indelible mark that will have spoiled his future. We note that the appellant's mitigation, which was accorded little attention by the learned trial Judge, implored the trial Judge to consider the age of the child (the appellant) and take a note of the fact that both the victim and the appellant were wrong. We venture to think that in the circumstances of this case, where the incident occurred out of what we consider as the appellant's naivety on account of his age, the trial court ought to have considered a more lenient sentence that would keep the appellant's flame of success re 14 ignited and burning, and his dream fulfilled. This is what going to school is intended to give. We, in consequence, revise the sentence and reduce it. Instead, the appellant will serve a six-year prison term. The sentence will run from the date on which he was convicted by the trial court. Other than the reduction in the custodial term, we find the appeal on conviction and payment of compensation destitute of fruits and we dismiss it. DATED at MUSOMA this 25th day of February, 2026. The Judgment delivered this 26th day of February, 2026 in the presence of appellant via video link from Musoma Prison and Jonas Kivuyo, learned State Attorney for the respondent and Mr. Shabani Kanyai, Court Clerk; is hereby certified as a true copy of the original. G. A. M. NDIKA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL