19771110 TZHC Arusha

IN THE HIGH COURT OF TANZANIA AT ARUSHL APP ELLITE JURIST :'TION HIGH COURT CRThINAL APPEAL NO0 61 OF 1976 ORIGINAL CRLINAL CASE NO0 181 OF 1975 OF THE DISTRiCT COURT OFHANiNG DISTRICT iT BASLTI Before G.A. Masawe, Esq0, - ---------------District Magistrate BARTH OLOME .S HABIYE -- - ----- - ---------------- APPELLANT (Original Accused) vers us THS REPUBLIC ------- - - -RESPONDENT (Original Prosecutor) J'U ) G H B NT Mwesiumo, J. The Hon0 Judge who minuted adittirig this appeal did not indicate for what reason he did so0 Possibly the appeal was admitted to reviw the evidence adduced before the trial court, it being the first appeal in which case this Court being the 1st appellate court in this case, has th mandate to reconsider the evidence as a whole afresh and arrive at its own conclusion which may be at variance with that arrived at by the trial court where it can be shown tht the trial court has failed to appreciate the weight or hearinç of circuns tances admitted or proved or the said trial court hs plainly gone wrong in coming to the conclusion it did0 Iy In this case the evidence adduced, which was not in dispute, is Cl that the appellant did set fire on the complainantts homa andrdduccdthe three huts within that kraal. to ashes0 His only defence was that he did so thinking that the said kraal had been abandoned0 As rightly pointed out by the learnd State Attorney that

kraal (Boma)vdid not belong to the appellant and therefore he had no right in law to determine its final destructic)n0 Further more it is in evidence that the appellant had known that the complainant was living in that borne With greet presenc? of nind and reasoning this Court scrutinized the record of the Courts below, the memorandum of appeal filed by the appellant and the submissions to this court by the learned state Attorney on )ehalf of the Republic, and yet, this Court frankly speaking, is unable to register any detection of fault that could justifialy entitle it to arrive at a decision that could be at variance with that arrived at by the trir'. Court0 It is for the above reasons that this Court found itself in .agreerncnt witli the Court below and dismissed the appeal against conviction0 As regards the sentence of a fine of shs0 600/- or six months ,. imprisonment again this Court agrees with the pronouncement of the learned State Attorney that though the said sentence is somewhat lenient, it should '.. .not be disturbed for the reason that the appe:.lant was a youhg man of 4 about 16 years of age and that he was a first offender and that the value of the destroyed property was trivial0 0/2 2