197203na TZHC Mwanza

"- -S .-. In the High Court of Tanzania .t: Mwanza'. . . ". Criminal 'Appeal No,. 378 of 1971 Original .C.riminl Case No..'39Q"of 1970 0 f the District Court cf..NOrth',Mara District at Tarime Bcfore: S. N. Kaji, DistrictLiagistrate. Iititito s/o Waikami .......• • •• 0IO• O • .. AIJPB11afl,t Vers,is: ... The Republic 4. !s'Rcsppident Ch6how20attle stealing c/ss 268 ano. 265 of the Fe lal Code. . . JGThNT Makama J'.. -. Mutito 'Waikami's' .dOiaviction for cattle tho.t was good and hiS .arpeal against it is. d'ismissed'. Satisfactory evidence was led '.tQ establishi:thãt:less than 12 hours after 8 out of PW1's 16 head' of cá'tt1e!'bd been feloniously reioved from his cattle pn.at' Nyamong'o, North Mare, the appellant was found across the hoarder in Kenya driving 4 heac'k: of cattle, convincingly identified as being among th stolen 8. He was fast driving them past PW2's house who was suspicious and triad to stop the appellant. The appellant would not stop so PW2 ordered his three dogs to persuade the appellant to stop, which' the dogs. did,. The appellant, said the cattle were his and that he waamorely going to plough his shamba, and'the gave afals:e.namc. He was subdued with ropes and. when ho. was taken to the lacal chief, P1:14, the latter who knew.. hia identified him as htito Waikami.. In defence. th:e ap'e.11ant said he was indeäd. arested..'in Kenya but that' he had no c,attle Nith him. lie as taking thinos. 10 H15 soa schoo1i tere Ux'Cfl he was. apprehended, beaten up, and told that. had ..olen some cattle. The learned trial' magistrate dishelievo,d this and I am not able to say that he erred. The appellant got the statutory minirdum sentence for ctti theft the appeal against''ihich is dismissed. He as ordered. to pay 4 head of cattle to compensate for the 4 not recovond. The learned State Attorney, who supported the conviction, argued that such an order was improper because, he said, section 6(1) of the Minimum Sontonces Act, under which the .dar was madei'providos for monetary comlDensa±ion 'only, unlika compensation wider section 176 of the Criminal Frd-cedurs Code' which provides that oompensation may be "in kind or in money". With genuine respect I do not share this restrictive view. Compensation is not confined to monetary compensation. It is a broad term and the purpose of compensation is to ensure that the offender gets no material benefit from his crime. If "compensation" meant onetary compensation only, section 176 of the Criminal Procedure Code would not have talked of compensation .Lin inmoncorjkind, which implies that compensation may be in —/2 - '- ..44. — 2— monor or in kind. If was t o unorstocd to mean monetary there would have been another r1 tcri if corapanaction fEC peJdble in md, ia 5ho. tar Oxford fn -lish Dictiondry defines "corilpensate" as "to countr .hlaice., to maup for, make amends for", and one jculd 1iave thou ~ ; ht tn word fl3dfS jLt tiat. Section ..6(2) of the Minimum Sentences Act talks of such comnétion being rccoverablcas a civil debt. A person C(ai11st whom such a debt is ordered to be recovered is a "juddment ob" and th6 dcfiiiitione of "judr'ment debtor" of - a "decree in tee Civil Procedure Coda do not support the implied pioposition that a debt can only be a monetary doht. In a society like ours in which barter is still the order of thc da3rhore sacmsto be no justificati for bcinc;so narrow and unrealistic in our definition. I respectfully arec with what Seaton J., as ilC tiiCfl was1 said in '•iANYANG'UIA_MATUJA vs R (1968) H,C.D. 507 that a compensation order expressed in terms of cattle is (often — the qualification is mine) bad for vananess because • "individual cattle may iary in size and condition t h a t th ya]u.of cattle may . be 600/- or 1,209/—". This is quite correct btt ii mc not tnc sa c-c s m tna -b a compensation orcier may not be macta in cmna. It only& points out t n difficulty Ghc-t Cc-) be Oncot'ntered. After all even if t corpcnsctio is c1erssd in Germs of r o icy that o aa not n'reasar 41 ly u ian-tea teat tre sorn aaro i IyoLld compensate, counte r blicc, zftc- a ua for niakc amends Icr; tue point bcin that -the. thmne;s or animals to b cbipensetted f wcticl hardly be tiara, . or be there in thäir initial form for the trial court to see 1 otherwise there Will be little point in makin1:. a compensation orcr. Ti trial coit .zoulci still ve to o l y some ôLandard and even if thcrewOs a stardrd prioc for,, for example, Gvera,c cow" there I. still the task of docldin whether a particular' iñissins 'cow was ai1 avarac ..cow or to what extant it was bclow1. or •ahove an avorade cow. .hhcthar compensation is in money or in. lind' it is to be as acsessed o t ie court o -iic 1 xo,ld n ye all tue ', available facts,at its disposal and usçi its discretiôii.and ° sense. In scm-i cases, perh,ps in most cascs it would be more convenien to oxpess t'ha comp?nsation in terms of money, but that should be for th 'court to decide, - - Because of the fore(:.oinS,: and, in the, abscoo of any spocial reason to warrant intaference, I do not .proposc to intarfdre with t.i co parctmon ordr c-nc accord ujy I confirm it. Delivered in Court this ti da of Iic-rcn, 1972.