D.P.P. vs Kiwalasa Nyorobi and 3 Others (HC Criminal Appeal No 14 of 1998) [1999] TZHC 315 (24 February 1999)

AT TAJ0ii.A ,...,..c...-.;c.-..,....__. .• .,e·.·---=-o Afl1JLLAT: 1 ; Jr:11LSDICTI0/: 0HIGDTAL CRIIG}}AL CAr-r:i; rm •. ·33 OF 1996 OF' DLS'."L'HICT COTmT OF MEATU DLS'.rRIGT AT FiWAJFtDZI .............. ,..,.~~, ....... -: . ..:., ..... .,__,..,..,_, :J • P • P • • • •••• • ••••• • ••••••••••• • • •. APII,;LLAHT (Original Prosecuto1:>) Ve I'S US

1. KWI1_,A,SA t-:'-OH0BI ) 2 • :SALTfJ'.iJJJ F-Y0R0PI ) ) ••••••••••••••••••• HESPONDGHT,S ) ., :?IGLA BUJ:::-DALA
2. ln}AfDU L UPOGO ) ) (Original Accused) JUDUHEFT L-...,&.·.·----.ca..1.. . .-... .... - •.. -.. ........ ::a,·.-:c-,,..,...-....., '?his is an appeal __ by· the Director of ?ubl,ic frosecutim (n.:r.2.) against an acquittal of f2 pePsons. '.rh~ per·sorn, (Perpr_mdents) were acquitted in the Meatu District Court by, Masi?:e DM:, Tbe D.}.··.P. is aggrieved at these acquittals bGnce this appeal. The respondents., in the District CouPt., were defended by I:!I.r,. Mo.huma, lea.raedd.advocate based in Tbe same Mr. Hahuma has represented the respondents in this appeal before me. '.L'he facts of the case are lP .. .t involving: It was during the §8,·l:.. .. 2:!11"' at 12:00 noor:i, t,Jhen the cotrt.;lainant Je,E3L~.J:1,1"1-2.., PWl, ·· a,r.rd :two others, DJtll..?_.?§:. we1"e 1:dtted outside a kraal. We are told that tbis was a temporar-,y kraal improvised for herd-srren:re.sti.

2 f.Jo, at that ti:i1e · of 12 :00 noon, the boy, I·Ir.:ussa was' sent b-y the other two ;.:;to f_etch We are to·ld. it t--!as cold ang. these people. were 01" had intended to warm themselves •.. ;.Tgussa JJjile went to fetch tbe fiewood,, and behind were left the other two, the complainant and Nbuliji Doma rw4. f. 1 c1en,. it that time when the bo:,r was coming back f1on picking ·tbe firewood,' people, lJho the Republic said k1J?g?2, came c barging, as it were. ~::'b.e first ace used, into the air. ,, . rrhe others were holding- sticks. O:n seeinc ,these people : 1 cr.12.rge•i, the boy I-ifl:U...s~~~:]jil ran awa:7• :1 1 rhe other person, ifyulij i Doma, also· ran .awa;v. 1 N1e · cornplo..5-nant • J • J_G lS sai, 1 :1ad also wanted to run awa;I, but be rot l.ate for he had wanted to tie tb.e shoe· 1e.ces to ~,..,.,. __ J,--.u 1;;..;:,.,_;:;ar.-1 his r-3 L.oe s. 'I'he;i got him and beat him up wit_h sticks. '1'hei other tHo u1:w had run awa:-,r raised alal"m, but JIB)pie could. not · corns" noarer as the first respondent had a gun. '2'1Je complainant got injm.,ed severel;i, it would seem. · :,;:e r-rn.s ,sent to a local dispern=rnry but later be was sent . to J.'.J,8:P.·:~1. Govenment 1 :Iospital where he was admit.ted 11 fbr Tbe matter was reported to the police and c.nd cb..:,rg2d them. All the f.._oy.L were charred, in the first col-1lTG, with assault causing actual bodil;: harm c/ s 241 of tbe puno.l code. In the second count, only the first responc.ent was chapged., and he trrns clla1"ged with threaten:tng

:.. 3 violence, c/s 89 (1) (b) of the penal code.• 1 1 bc.t shot be fired into the uir ·was the subject of this Count. 'I'he fil."'st respondent denied these allega.tions• hcco1."'c1.:i .. ng t0 h:Lm, he ,.heard the alarm and went to the . . . als.i-'rn onl-y to find the second respondent beine; chased b".'? the very complainant. And, arrows were be irig thrown, ail e·,ilc .. natine from the relatives of the complainant. 'l'he second respondent informed the Court thr .. t on tbs:t d.::1.7; 1 he was g1"'aaing cattle. He then saw the complcd..11ant ai1d his relatives cba1"ging. One of them sb:out8d i 1 J.eo utakuf., Hani amekuatobia. kuchungia eneo according to him he raised an _alarm and people cs.me to rescue him. rhe thir:-d respondent, also gave almost a similar story, saing that it was the complainan~ who was chas:ir.g tbe respondents. ':Che 4th respondent said he heard an alarm and he went to the ar¢a and-found three people holding arrows Before the district ma.gistr?,te, Mr. Masj_ge, tl·1[tt story was not accepted. Por a passar::e in the 1 F: judgrnei1t of ·the trial magistrate reads: i;There is evidence that when the accused invaded the· place where PWl A.nd his collea,g·ues were, tb.e col ler:;ue s van away leavin2; P-vJl · . · be bind. Re nee it is doubtful if they witnessed what was happening ..

·, 4 ' behind. At least we expected independent witness rather than r'Wl and bis colleagues who are said to be relative,'3." The magistrate went on: . 11 Mro · lfahuma, defence counsel, submitted that tbe cornplninant has fn.bricated case against the accnsod as a revnr.;e · for tbe prosecution and· conviction of his futher. and his relative !~~-q}.lhU,_l)pE:,• He further sid that there cai1 never be another c·ase based on the same facts. I side witb thf.l defence. L:i.tter 11 suhmissionHe :Cim-J, there are four. nfatters here, that I want to s.ddi:'e ss l,l;T mind to: It is said thnt the complainant l1[tS fc.bricated a stor;;. 1 ·I sa-y that there is 129.. questicu of f:,.brication b.er.c. 1 .l'he story comes in a good <ti.ronoJ.01rY• . . In :fa.ct the complainant is so honest to S8.";( tbat the ot.her when two victims fled and he was caug;:.it / .. ' was t-,v:i..np; up his . . shoe-1:::.ce s., He could as- wll have sa-id the-y sta:ved be Ld::Iid • ...,_ ···-·· .. ,·.,e.-...1-.· ........... -, . There is 110 fabrication there. On the contral"X the co ,:'i,fJ l n innn t demonstrates here how ere dible. he was• , . Secondly, as pointed out by Ml". Mwampom, the learned st:rte i:..ttorrnnr, there can be no question of identification in broad daylight,, '.r:birdly, tb<;;Pe is tbe naked fact that t"t\e complainant got i11ju1:>ed El3YE!J:SJ1X• That testimon;.r is suppor.ted by PtJl, 1W4 and PW5. 'J.'he complaine.nt was indeed injured a"'ld seiJt to the bospita.l. PH4, it should oe known did sa"\r,· ,. . . be . _ • 1..mlUrn what the magistrate su:1s, tbat.L~~~ witness. the ass2.ult.

5· And fourthl;J, the magistr-ate, by suggestin~ thc.k tht?re ought to be independent witnes·ses here and not r0latives,is not supported bJ an~ legal principle. '.C'hel"EJ is no principle of law which Sfiys· that evidence of l"'cl2ctives cannot support conviction (see observation HG Cri!ninal Appeal Ho. 154/78). I•;qually, there is no set m.:rmbe'r of witnesses, in c,rim"irnil trial tb.a} must cowe in or>der to prove the case beyond reasonable doubt~ . . There- is a ·. 'i.· motive - to ·this assault, it would seem quite· elem." as the D.2~?. ss:ys: The respondents went to assault t":::i.e complainant becaus·e of dispute over a g,r:~.J.:.?.: .. ~E2.£• The· complainant bad chased them awa;v. Tbe enernity has been so strong that the two sides ho.d sent each other· to both criminal and ~ivil Courts. :hat. I~~t:hY.2. is very rnuch m::1to1."ic,l to the ·case. Lastly, I hn.ve not been amused by the a·ction of the de ➔ f2nco ·counsel calling the pPimary Court magistrc.:te u-:-: . wbo h8:ndled a. case on the dispute to the grn:.&ing area, :c, to Co':-:Je to c.ourt and testif? and ·cende:r-'·. ·_· his own j ud:·~t;JD;.1t. 'l'hat has been a novel thing to me. It is bad and phould be not only be discouraged but navel" repeated ,'3.?:r:,:i.n. · )>'.'.r. Ma.lmma has defended himself here, bef_ore me; by sn:,;:i.nr; that he wanted the primar-,y Court judgment to be tendered. Well, macistrates don'•t tender their own j ud.E;monts-. ~rhe j udgrnents are tendered if o.11y of the witnesses should ·wish to b"'1 Court clerks •' ....... · __ ... ~ ................. ..-.... them tend.er::, :!n the alterns-,t:i.ve, Courts do take judicial notice of these Court judgments.

6 I 2.r:-;ree· wit·h Mr. :tvlwampoma for the D.:ti • .P. tbat the fiVidence was ver:v overwhelming to sustn.in a con vie t:1.on. 'l.1l1e re s·ponde:rits ougb.t to have been convicted as char{?;ed. I thepefore set aside tb.e order of ncquittal and substitute thei-'e instead an order of conv:i.ction. The f.<?Y:l'. respondents · !.w .t8:PE:}J1!.?F.2.?J,-, }ilt1---1~}::l.:'1§R).a_ and llpa,nE .. 1'.Eai%& arc con.vi.ct(Jd as charged 1 and sente.nced to n.s follm-1s: ' 01"1 -1st count, all the four are sentenced to two ors imprisonment each. On the second count (wr-1ich involves tb.e first 1"'espo11dcnt alone '..the one of discharging a shot :from a gun) the. respondent is sentenced to one ;. 7 ear iplprisonment. 'Jh::Jso sontenceo, in respect of the second respondent, w:t 11 run consecutive to the first count. I do this because , ......... ,II- • ·•---1•..o .•. 4!.->!-·· ... ...:;-.,, ·r see thn.t tbere wr:.,.s 8.c.2.. need at G.11 to be so clumsy with tl::.c gun und. discharge a shot from it on reason of a. dis~ute over a grazing area. a.he. NpnJJdu fiApog2, will serve two ye8.1'.'13 imprisonment, tho first respondent will serve three ;.rears in prison. I nlso order that warrant of arrest be issued and ti:1.e 1"}esponde1itsbc arrested. a11d cornu1itted ·· ... , . ~ ? ~----, J :::.; • C • MASAX::-C }IG At 'J. 1 0..bora 24th Februar, 1999 .St:1te Attorne:v: Absent Appellant:. Absent. to pPison.