Mussa Lukwaro vs Iddi Kimando Mdee (CR.APPF,AL NO. 13/1998; Criminal Appeal No. 8 of 1999) [2000] TZHC 223 (12 May 2000)

... ,' IH THE HI Gll COD' ;T OF TAN ;,;ANIA CRIMINAL APPEAL NO. 8 OF 1999 (FROM THE DSCLSION OT<' MWANGA DI.STRIC'1 1 COUI'.T CR.APPF,AL NO. 13/1998 ORIGINAL LEMBENI PRH'iARY COURT CRIMIJ';AL CASE NO. 3 OF 1998) 1'1-USSA I,T_iICWARO •••••• , , • • • • • • • • • • • • • APP:8LIANT Versus IDDI KINANDO MDEE • • • • • • • • • • • • • • • • • ·:-dSPONDENT J1DG11-IBNT '.:.'he appellant, .Mussa Lukwaro, was charged with Criminal Trespass contrary to Section 299(1) of the Penal Cocte at the Lembeni Primary Court of Mwanga District. He was found not guilty by the trial court. The respondent appealed successfully to the Mwanga District Court. The 1st appellate court's decision aggrieved the appelJ.ant who pr, 0 ferred this second appeal. The facts of the case are that the appellant borrowed shs. 20,000/= from the respondent. On his failure to repay the loan the appellG.nt gave the respondent the disputed shaba. Then the appellant's children went to cul ti va te the sham ba a.nd prepared to build a house on it. This prompted the respondent to prefer the criminal· charges against the appellant. The 1st appellate court erred to alloi-; the first appeal. Taken alone, the above facts by the respondent prove that it is the respondent children i-:io-~ the respondent who trespassed into the l.3.nd. No reason was shown why frose children were not charged jointly with the appellant in the first place. Moreover the appellant's children ma~v have had a bona fide claim of right over the said sharnba. They were not given the chance to redeem the said land. The 1st appellate court just allowed the appeal without saying whether it convicted the appellant of the offence charced or not. /,uthorities abound that matters like this where parties ( or their defendants) d.ie:-1ute over ownership of land the should be resolved by way of civil sui t_s for their than criminal cases. I l therefore allow this appeal with costs. The 1st appellate court;s order ·st appeal if.; set aside. Also set aside is the order declaring owner of the disputed land. The parties are to resolve their of a civil suit including the appellant's children being given em the customary disputed land. ~ o....:J./v L.B. MCHOME, JUDGE, 12/5/2000 i'ii;> 1 .; """'"'rl t:h; .c:; 12th day of May 2000 in the presence of the respcnden¾1?

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