Donald Kamwela vs Jailos Muyola (PC Criminal Appeal No. 10 of 1998) [1999] TZHC 363 (12 October 1999)

IN THE 1u8H-·-eo1mr :oF TANZANIA . -· , (PC) . AT MBEYA -H-f c Tance:i . CRIMINAL APPEAL NO. 10 OF 1998 . . 'V - '(From Criminal Appeal Noo 9 of 1'.998 of the District Co_urt of Mbeya District at Mbeya Before~ I.A.· Mtiginjola - District Magistrate) DONALD KAMWELA 0000000000000000000 APPELLANT .),versus JAII.OS MUYOLA o o Of) o ooo oOoo o oo ooooe RESPONDENT JUDGMENT -\ ·;_ The .respondent, .Jailos. Muyola, instituted criminal proceedings against the , .. atpellant, Donald Kamwela, before the primary court of Mbalizi. The c};large was ,. ·._,.; 'rhreats to kiil, contrary to section 89(2)(a) ,of the Penal Code. :· T°i1e pr}war'Y'. court acquitted the appellant, and this aggrieved.the respondent who preferred an appeal to "the district·court of Mbeyao The d.istrict court allowed the appeal, set .aside the acquittal order, convicted the appellant of the offence charged, ,and sentenc.ed him' to the. ma.xiim'.1m

• ' . ·.- ,."': ·, <". -· imprisonment term· of oe year prescribed for the .o.ff-enc. The convi-ction,and' .. s'?ntence aggrieved the appellant, hence this appeal in which both :parties appear;d before me and argud out _the matter t}1emselveso Wrd had it at the small village (hamlet) of tpE? parties that the respondent '.,, was fooling around sexually with other villag'ers 9 wives day and night' by what was believed tu be witchcraft deyices. The appellant waIJ the 'cell leader for -'.;he, arec.. On 26.7.97 Bryson Coster (SU5) registered a ipecific complaint against the respondent with the appellant that his wife had fallen victim· of the respondent's advanoes. The following day C.71.) the appellant called a public meeting of all villagers in his hamlet and chaired it. The meeting was attended by many villagers, among them, Adimi Mwashinani (SM?), Asumwisye Kanyelela. (SU2), Magdalena Mwakembe· (SU3), Christina Sinde (SU4) and Bryson Coster (SU5). After the usual agenda the appellant introduced the complaint of su5. However, not much could be done and 0 O O D O O O O • /2 \ r

2 - said as the respondent was absent at that meeting~ It was agreed that another meeting would be held on )08.91. which was duly held under the chair of the appellant. The attendance was the same, only that this time the respondent attended. What transpired at that meeting was at issueo According to the appellant (SU1) and his four witnesses (SU2, SU3, SU4 and SU5) after the usual agenda the appellant reintroduced th~ complaint of SU5 and J •. called upon the respondent to comment on it. The r.espondent kept mumo· He did.not Or ... a_rr..9_~~ce say anythingo The villagers took that as a gesture of disrespect on the part of the respondent and shouted at random that the respondent shouid be .I"• chased away __ from their villageo The respondent then denied what was alleged against him by su5. The matter, however, was left in the hands of the hamlet committee whieh was tp draft recommendations for approval and action by the village :.:_[ ·.' leadershipo SU2 was.a member of the committee. But before:the committee completed its work the resp6ndeBt went to• th,e,- police and the charge was preferredo The versioofth respondent (SM1) and h:t.s only_witness (SM2), who was a tenant in his house, w~ that the appellant ordered the respondent at the rmeetig . -·· / ··.::. of 308.97 to lec1.v-e :the hamlet within 24 hours' else the villagers would. 0 cut him into pieces Jith pangas. 'To use the words of SM2: !' ••••• o Mshtakiwa (appellant) alimtahadharfahc:;. mlalamikaji (respondent) kwamba &o_ndoke kwenye shina ndani-ya masaa 24 Vinginevyo wananchi watamkatakata na mapanga.n This was denied by the appellant and his four witnesses. The primary court· unani.rnously found the case to' be devoid. of suff'icient evidence that the appellant had uttered the wo_rds cmplained ·of and expre_ssed the . . view that S:M2 could have E3poken in· fav:?ur ·of the respondent falsely on account of the tenant and la..11diord relationship b~tween themo :::-, .. ,.•' 'l "" • . '.. .. - '·

The district court 9-id not give any reasons for preferring the version of the respondent aJ'.ld SM2 to that of . the appellant and his for witnsses,. The district court simply found the words • < .,. complained of uttered by the appellant and based the conviction of the appellant on that ground. i '. ,,. . -..: •".r ·: t. '' ... .-:. .. ~ . • o •· o· o o i ~o • • /3

.... . There is. merit in this appealo The decision of the trial court was improperly impeached by the district courta The vital. question before the trial court was one of credibility of witnesses. The question,-· credibility of· a wit~~~s on the basis of deeanour is the monopoly of the trial court which had seen and heard the parties and their witnesseso A trial court, therefore; h got advantage over an appe:nate ' court with regard to deciding which evidence to accept as truea It would be only in rare circumstances that an appe'i1ate · court would interfere with a trial court I s· findings based on facts~ Thi~ court held in LalatB:_ Msan_ge. v !.}!ency Mwamlima ,,,,, ( 1979) LRr 3, that the findings of fact in the court of first instance must be. affirmed by an appeal court .unless the same were not arrived at reasonably or they cannot rationally be supportedo While adjudicating on the same question of credibility of witnesses, the Court of Appeal for Eastern Africa held in~ Gokaldas Kanji Karia. and Ano~ (1949) EA.CA 116: Where a case· is essentially one of .. fact, in the absence of any indication that. the trial. ~~dg~-h~ ,failed'to take some material point or circumsta..--ice into account, it is impossible and improper for a Cou:rt of Appeal to say that he has come to an erroneous conclusion as to the respective credib'ility he attached to the evidence of the Crown witnesses and that given by the accusedo It was worse with the district court which did not give any reasons for its decision to reverse that of the primary court. In any judicial proceeding, failure to give reasons for any finding or order or decision made is not a proper and judicial exereise of discretion. Justice is never meted out on whims or arbitrarily. Justice is evaluated riot by loe,king 0!·1ly at the end result of a m?,tter, but also by the manner in which that result.is arrived at. It is a question of transparency. Transparency and justice are inseparablea One of the essential components of transparency in the administration of justice is to give reasons for decisions or findings or orders made. Any decision or finding or ordGr made with01.i! assigning reasons must be quashedo There was ample material and credible evidence that the appellant had not uttered the words complained of, let alone to the respondent. It were the villagers •• 0 0 0 0 /4

,:"' : ',i ':.•,, "} :\ ''. who had demanded that the res'oondent be chased away from. the vill<;l.geo ·:Even then • ·-: ... .i; < • i. . . •,,I • -. a dec·ision had not been reached.- The appellant had, in fact,. r_eceived an official complaint from a villager (SU5) :against the respodent for his unbe~oming conducto The appellant, therefore? was perfeetly entitled to have raised that complaint at the meetings he had lawfully called for c.iscussion and possible solution together . . . with other matters affecting his hamleto There was no way, therefore, that the charge preferred against the appellant could be taken as proved beyond reasonable doubt op the evidence and in the c ircumstanc·es. 1· I would, in conclusion, comment on the sentence awardedo That sentence was, in the circumsta..'1.ces of this case, the mo.x:imum prescribed fol<: the offence. I am satisfied that the matter was devoid of_any compell0g grounds for imposing-it. Maximum punishment must be reserved for the very worst of caseso Courts have s_onsistently avoided the imposition of'Mwcimum sentence, even where there is a pr(;)vious conviction, for the obvious reasor{ that ·Bf, ,one can never say that a . ,· particular case before the court constitutes the worst breach of the relevant law, it is always safe to assume that the worst breach of the law is yet to occuro I would certainly have ·interfered with the - sent_ence passed were the conviction of the appellant tenable. I. accordingly allow_the appeal, quash the conviction, set aside the sentence, and-hereby restore the decision of the primary court in which.the appellant was ., I 1 ---/ . ' I ' I • i .. 12 October 19990 For Appellant: Presento For Respondent: Presento

B.l?. MOSHI ·-JUDGE •..