Mwing'a Chacha vs Republic (High Court Criminal Appeal No. 251 of 1982) [1982] TZHC 360 (26 October 1982)

IN THE ~ITGP COURT OF Tf..TIJ7,WIA 1\T M'rAN'7, A ~ZLLJ.TE .WRISDICTION

IITGH CC'JRT C.RD:iIN!.L /'J'PE,1\J, NO. 251 OF 1982 C,?.IGIN:".L C:RIMil\T"J, C::SE NO. 79 OF I98I OF THE DIS'ri.uCT. COURT OF T:'RTME DISTRICT '.T T".RIFE BE'FORE F.M,K. MW.",.WVl'..,Jt ESQ:., s::NI0R DISTRICT MtGISTR\TE·. ~ ' ' . J.fi{.[NG' .:\ CH.tiCHA •. $. r-.'" • " •• () •• o o •••••••• o ••••••••• ~ •• ·-. ••• ; • • • ~ • ·• ·• ·• • ~~FFZLL 'l{T 1 ( Original 1".ccused) V /s ~ .. :-.:c(im. I . . ' . . . . . .. 'I'rIE UBLIC o ••••• ., (J. " • o o or o o :t " ......... o • ·.., o •••••••• ,. ·• 1. •••••• ,. • •• IDE.s})ONDTINT .. ,, ·/ ( Original Prosecutor) / _ ..... The-appellant was convicted of causing grievous harm and fined Shs.3,000/= or IS months i □ prisonment and ordered to pay Shs.I500/= compensation. It was stated that·on 27/.)/80 there was a wedding ceremony in the house of one Frimi r{wl.-a (DW2·). During .the night. a fight broke out and the complainan-'.:; was inured. It was alleged that he was injured by the appellant who cut h:·m v;ith a sword known as 'sime'. The appellant denied the charge but he was co!lvicted. : The prosecution called t!u-ee witness;· the complainant and two others. The prosecu-4.;ionis case was tha't·the appllant attacked the complainant as the latter was mediating betwe 0 en the host of the ceremony Mrimi (:b-12) and his wi::'e Ghati. Both the two other prosecution witnesses }.farwa Wambura (Pl72) and Machonisi Singiri (P~'."3) said th~ appellant was prevented by one Seria :Ma:ntahe :otherwise he wquld have killed the complainant This man Seria l'iantahe was not· called whil-e---the appellant challenged PT.'2 and P"3 that they are thG complainant's cousins and ware trying to make a case for him. The appellan.t called the host lfrimi (DW2) who was said to have been quarrelling with his .wife Ghati. _This .w:it,ness den.ie,d .that he .e.ver quarrelled with his wife.. He a. 1 so said he did not see the appellant take part in· any fight~ He did not r _· the ccmplainant with sime s alleged. The trial magistrate _ftisb.:Jl:.., .. ,·c.l .t.:o. ,c.:.:-: ··mce ~ ln . .my .apin:i,on ,he .. was ,xwt ,ju.stified. The re were many people in the cercnony and :it was night. It was possible for• . · : : the witnesses to mistake the identi-r;y. ·The host of the ceremony Mrimi (ff'.'2) said the appellant was insia te house. His duty was to collect cash offered as gifts and never w::mt out when ceremony was still on. The prosecution alleged that ";he complainant was injured as he was mediating a quarrel between the host ~Jr..i.J.l.i and his wife Ghati. But Mrimi denied that he· had any quarrel with his ·•-· ~·e. This cast doubts on the prosecution evidence. -This .is accentuated by .the fact that they·.mentioned ·Seria 'Jantahe s .a:: peron who separated the· appellant from• the complainant and 1yet they feared. t·o call him 7.0 give evidence. The .. cas·e was not proved beyond _.reasonable .doubts,: The appellant was entitled to acquittal. :I· allow- hies appeal, quash the conviction and set aside the sentence of fine of Shs,3000/=.i I -also set a.s·ide the order• of compensation ·o,f sh.I500/=. ,I-t'i'e.fipei~~~t part of the fine· was paid. This should be refunded to the

a:pperl-mit . .;(:'ti'kew. isc if co;npensation was paid it should be refunded 0. ~ 1/ a • .(' "\ .r; ,'' .,,- , {;'r·· ,:;;. HIGF COURT }l~.".Nt\ "~ 4f ;,.,.. '9$TlfOCTOB1::fu:Jt9~?.., F.-A. GR:".., -r._:7

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