atupakisye mwakajila vs isack mwakajila 2020 tzhc 4336 21 december 2020

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA DISTRICT REGISTRY AT MBEYA PC. CRIMINAL APPEAL NO. 01 OF 2020 {From Rung we District Court at Tukuyu, Criminal Appeal No. 27/2019, original from Criminal Case No. 109/2019 of Katumba Primary Court} ATUPAKISYE D/O MWAKAJILA.............................. APPELLANT VERSUS ISACK S/O MWAKAJILA.......................................... RESPONDENT JUDGMENT Date of last order: 29/09/2020 Date ofJudgment: 21/12/2020 NDUNGURU, J. This is the second appeal. It involves malicious injuries to property contrary to Section 326 of the Penal Code (Cap 16 Revised Edition 2002). The charge was initiated at Katumba Primary Court where the appellant lodged a charge against the respondent. Upon trial the court found the charge against the respondent proved to the standard required in Criminal cases. The court convicted and sentenced the appellant to serve 6 (six) months imprisonment or to pay a fine of Tshs. 50,000/=. Dissatisfied, the respondent appealed to the District Court of Rungwe at Tukuyu where the appellate court revised the decision of the Primary In the instant case, all the more so for the first appellate court misdirected itself in making analysis of the evidence available on record. From my perusal of the evidence on record it is clear that, the trial Magistrate who was at the best position to access credibility and deminour of the witnesses, did not cast any doubt as far as the credibility of the PW1 and PW2 except that of PW3 who was a child of the tender age. Before the trial court the issue was not on the ownership of the farm but malicious damage of the property to wit maize plants. Likewise the respondent did not raise the question of ownership of the farm. If that could be the question the matter could be typically a land dispute. From the record leaving aside the evidence of PW3 which the first appellate court expunged, still the evidence of PW1 and PW2 who were the eye witnesses sufficed to warrant conviction. In the premises I hereby fault the judgment of the District Court and hold the judgment of the trial Primary Court. In addition to the sentence imposed to the respondent. The fact that the respondent destroyed crops I further order him to pay the respondent compensation to the tune of Tshs. 50,000/=. It is so ordered. D. B. NDUNGURU JUDGE 21/12/2020 Date: 21/12/2020 Coram: D. B. Ndunguru, J Appellant: Present Respondent: For the Respondent: Present B/C: M. Mihayo Court: Judgment delivered in the presence of the parties today this 21st day of December, 2020. D. B. NDUNGURu JUDGE 21/12/20202 Right of Appeal explained.