Mwita Marwa vs United Republic (High Court Criminal Appeal N0. 100 of 1998) [1999] TZHC 56 (21 July 1999)

IN THE HIGH C CURT CF TNZANIA AT MIIANZA APPLUATE JURISDICTION (Mwaxiza Registry) HIGH CCURT CRIMENAL APPEAL NO, 100 OF 1998 (Original Crimn1 Case No, 27 of 1998 of the District Court of Serengeti District at Mugumu Befre:... N. WARSHA Esq,, District Magistrate) Mln-mA MA'OIIA s.... Si•ss• ...... •...•. .....• .i.5 LU45 •ISS ••••S ••••• ••,••• •.s•I ••••••APPELLANT (Original Accused) versus :::u: :::::: :::::: :::::::: :::::: RPONDENT JUDGMT The appellant by the name of Mwita Marwa has levelled this appeal against the decision of the trial District Court at Mugumu in Serengeti District where the appellant was originally charged with the offence of 4oing grievous harm c/s 225 of the Penal Code but was eventually, at the end of the trial, convicted with assault nccasioning actual bodil,y harm c/s 21 of the Penal Code under alternative verdicts procedure in terms of section 300(2) CPA, 8, The appellant was sentenced to two years imprisonment with an rtion to P.W.1 to file a civil suit against the appellant in tort to recover damages for the bodily injuries p.W,1 satained at the hands of the appellant. i The appellant has appealed against the whole of that decision, but did not wish to be present at the hearing of his appeal, I therefore heard the appeal in the absence of the appellant, but paid due attention to his grounds of appeal contained in his meinoiandum of appeal which was drafted by Mr. Matata learned advocate. •. •.... .

The gist of the appellant's grounds of appeal is that the learned trial Magistrate was biased on the prosecution side in his assessment of the evidence that was adduced by both side's That the said Magistrate did not consider at all the defence case 1 particularly the appellant's evidence on self defence. The appellant also charged that the trial Magistrate did not take note of the fact that the prosecution witnessas were all re).d o t1i ainant (P,.W.1) 1 ero that t1se $tnesses were in.tere.sted persons. . Ka r'nde, larnsd 8ta ttorny 1 had no diIfiøu1ty i zubmittjW. th.t khi appeal had no merit at all. The appellant substantially admitted to have hit P.W,1 with a stick on the head 1 and thereby injured him as supported by medical evidence on PF3 (Exh P1). Mr. Kabonde submitted that the ee1lapt' defen ,& thatha, hU tho onmplainaut i.aaaS.-defena4,.wag incradible in view of the cogent evidence which was given by P.W.1 1 P,W 9 2 and P.W43 who are aye wLtnes-sea, and whose evidence hiblr believed. The trial Magistrate the learned trial Magiatrateis the best judge on the .rena. ef cd.jbiii*j d j& O ppajl a t.Q6 *rt li e r. no Sond ron in s1gt to fauJt him in that finding, I quite agree with Mr. Kabonde' s submission, .Accordingly I find this appeal lacking any merit and substance. The sentence of two years imprisonment in the manner the appellant committed this nffences 1 that is 1 he acted like a bully towards P.W.1 1 .1 find therefore that entece is proper in the circumstances. I accordingly dismiss this appeal in its entirely and oonfirm the sentence of two years imprisonment which was meted out to the appellant by the trial subordinate court. I order accordingly.. Appeal dismissed. M D. NCHALLA JUDGE 12/7/99

2 1/7/99 Coraint M.D. Nchafla J, Appellant: Absent, does not wish to appear, ReptbUç/Respondent; Mr. Cuta, State Attorney C.C: Robert Nyabane 12i Ô' j.. &X t 1arU& at.Q Attorney, and in the absence of the appellant 'è di4 wrt t, b* tb 214A 4AY of Tujq # 1999 R&t ( explained N,D. CHAILA 21/7/99 ___