Nanuyi Kidayi vs Republic (HC Criminal Appeal No. 94 of 1981) [1982] TZHC 605 (1 December 1982)

"1 V IN THE HICH COURT OF TANZANIA AT TABORA' APPELLATE JURISDICTION (Tabora Registry) ... .............. . (iic) CRIi4INAL APPEAL 'NO....' 4 OF 1981 ORIGINAL CRININAL CASE Nt. 214 OF 1980 OF T1-!E DISTRIcT COURT OF BARIADI DISTRICT AT RARIADI BEFORE RUZYIkN9A ESt - •-- DI$1Tflc2 UjU3I5TR1jE 1'IANUYI KIDAYI APPELLANT (original Accused) versus THE REPUBLIC ::::: :::::,;:::::.:::::: RESPONDSNT (àiginal prosecutor) RUBAMA,JUDGE. J U D G N E N T NANUYI Sb KIDAYI was onvicte o arson c/s 319 of r th Pexa} Code and sentencdto five years imprisonment. He now appeal against hoth'th cdiviction and sentence. The prosecution alleged that-ohA . - he, night of 10th September, 1980, he appellant went to the house of his in laws and set fire to Lt. As it was burnln9, he .ias spotted by his mother in law and later ?nls father in law. The light eminating frám the urning rhouse elihtinated the night b darkness. An alarm was raised by theownrs of the burning house and several people responded to the raised alarm. One Bahame Kiduta (PW4), the firSt person to respond to the alarm also testified that he had seen the appellant at the scene of crime stand near the burhing . h6use. He and 'pw1. :te aelláh's, father in law hased the appellant but could not catch him. The.,a.ppellant in his' testimony.'deni..any knowledge of the incident .leadirg to .h.is arrest.n. eventual charge oar'son. He stated 'that. ewas on the material night sleping with his relatiye - Manoni s/o Mabinza (DW2). • Mnon.i.s/o Mabriza.confimed.the appellant!s story. The trial court accepted the prosecution case and convicted.. 'Thi c' ~ ig ia's .admit:.to. arnongs.t other thihg, to re exanih the eVidepcof. identity of the arsonist.

The learned State Attorney, Mr0 Nussa, supporting the conviction stated that the evidebbe of identification was verwhelminq.;LHelmrnitted±hat the appellant had been identified by his in laws and the first person who had responded to the raised aIatm'0 lI th identifying witnesses knei'the appeilantwéli'and hd.decribed::even the dress the fut appellant. hadon P&it.wasd:urtng tie:night,but the three identifying witnesses testifi.ed to their being enough light eminatin ftOi the binitq house tç have facilitated theidentification. i see merit in these submissions. I would add that there seems to e ho Ill blood between the appellant and his in laws that could have in anyway sugested that the appellant1iad' been framed. Added to this, the thLrd identEying 'itne Lt., tazr andependent witr,es - he to tell lies against the appellant. He too saw the appellant at the scene of crime and together with the appellants father, ilaw chased the appellant for some distance0 There is no case of mistkeñ identity the person seen at the scene of crime was te appellant. There is no direct evidence that the appellant was seen st4ng fire to his in laws dwelling He had only been seen at the scene standing near a burning house. He does not )(r - live in the dwelling0 When he was spotted, no alarm had as yt been raised to have made the appellant be at the .\ I r• scee.e stood there gazing at a burninghouse at night, pr, from his own house0 He was not fighting the fire - he could not thus have been there to save his in laws houses When approched, the appellant ran away0 A chase of him i7 was 4nsuccessful0 I can draw no other infefence from the pacts and circumstances of the case than that the appellant was the aronist. His alibi was fake and rightly rejected by the trial court0 The evidence against him is overwhelming. I dismiss the appeal against conviction, arson was coi-'mitted during the night when it was fully known that inside the house were human beings. The appellant, being a son in law of the victims must have known that there also lived children 'Th the h6i.te0 A much more ugly consequences w6utld11ave takenpiace if it were noE for the speLd and correct setting of the minds of the victims in first mvinq tdsavelies The victims were not so lucky with theii'pdpdrte :héentence of five years in the circumstances is justified and is thus accordingly confirmed.

\ F I - The appeal against sentnce is dismissed. During the trial, the prosecution called Icigalo d/o 1Tutisi as prosecution witnes.number three. This witness is ;.the wife of the appellanto She was a competent but not a compallable witness in terms of s. 130 (1) of the Evidence Act, 1967, In such a case therefore, the trial court should have tol.d the witness that she was not a compllab1e witness in terrrs of s. 130 (1) of the Evidence Act, 1967 as required by s. 130 (3) of the said Act, As this was not done, the evidence of Pw3 is inadmissible: see S. 130(31 of the said Act. In evaluating the evidence,. I Iad riot taken into consideration this inadmissible evidence and the trial magistrate is hereby asked to bear this provision of the law in future. A lot may depend on the fulfilment of the provision in ensuring that justice was not only done by seen to have been done.