19770625 TZHC Tabora

C - 1 IN THE HIGH COUFT CF TANZANIA AT TA3ORA APPELLATE JURISDICTION (Hc) CZThIMINAL APPEAL NO. 81 OF 1976 ORIGI?'AL CRThINAL CASE NO. 71 OF 1975 OF THE DISTTICT count CF IIGOW DISTRICT AT EIGONA Befc.re4 J. E. Co Nasanche, Esq., R/Nagistrate. KOBORA ELIPHASI NKUKU ...............,...... APPELLkNT versus THE. REPUBLIC •.,.. ,•. . . ... . . . ....... .. ... RESPONDENT -CHARGEv Causing death through careless driving c/s. 41 and 43. (2) cf the cad Traffic Act. No. 30 of 1973 , JUDGMENT MAPIGANO J; The appellant KOBCRA ELIPHAS NKUKU was on 3/4/76 convicted in t he district court of Kigcma causing death through dangerous driving, ccnt' to Sections 40 (1) and 62 (2) of the Fcad Traffic Act, 1973- He was then sentenced to eighteen months imprisonment and disqualified from driving for a pericd of two years. He has appealed against that decision. ,S The charge alleged that on 6/10/74 he drove a lcndrover No .. GTA 270 from Nabumba to Kibc'ndo and that he knocke(l, and killed one wcm-n, a pedestrian, at c place c11c6 Iagunzu. It also al1eed that he was driving carelessly at tl-c matrrl tine, but did n - t particularize hew. There w ditect evience as regards the 1leged ccl1iicn and the trial Nagistrate properly appr.ciated that PC mt. The prrsecutic-n cac shcwed an estajlishcc beyond doubt that the appellant drove the landrover from Mabumba to Icibondo via Nagunzu between 12 noon and 2 afternoon on that day. But there ws only hearsay evidence that the woman died in .a hit-and-run motor collision. The evidence which the learned Magistrate apparently considered crucial was an as.erti.n by Pii.iCp1. Artheir to the effect that the landrcver No. GTA:270 was the only vehicle which arrived at Tiibondo from the direction of. Nagünzu around that time. It was not in evidence to hew far is Magunzu from Kibondo. -2- W.th respect, I an, bound to agree with the submission that the conviction is bad. In the first place there was no compelling evidence that the beceased woman was struck by a mctcr vehicle. The only evidence cn that aspect of the case was that of P.7 Abdu who stated: "I passed Magunzu. I met a lot of pocpl. I saw a dead body on the road. They told me that a vehicle had hit that person." This, needless to say, was entirely hearsay - as regards the point whether or not the woman was ;it by a vehicle.. I cannot understand why the prosecution decided not to cell any oye-witness. Secone,lyj .hero was nc cogent evidence to show that the woman was struck by the appellnts landroveri if at all she was struck. It seems to me that PW.l could n.t have confi- dently sworn to the fact that the only vehicle on that road at that time was that of the appellant. As the learned Nagistrate observed in his judgment, H there are a number of other roads from 4agunzu to Kihcndo and one can divert at a point and evade some other points". Thirdly, even if it was the appellant who knocked the woman to death, there was the further questions whether or not he was at fault and whether or not his manner of driving was • the substtntjal cause of the accident. The burden to prove ' these. points was on the prosecution. As I have pointed out, the charge merely alleged that the appellant was driving carelessly: It didnct spell out in what manner. The • learned.magistrate found that he was driving tc fast, but, with respect, - 'I have fail tb see any eve dential basis for that conclusic*. Furthermcre, .as';bcth'C';ün's,bl have pointed out on this appeal, it .,dce :flct appear that' there was sufficient evidence to 'establish the cause of death. What the evidence only disclosed was that a woman was found approntly dead on the read and that he was bleeding from her limbs. I think that this was far from heing'ccnclusive ot the fact that her death'was caused by a motor accident. 'Tho appeal should' therefore succeed. Loarnod C(--.unsel for •the Republic has asked for a retrial. Under Section 319 (i). (a) (i).C.P.C.. this court can order a retrial 1 but I am'fax from being persuaded tbt such an order will be proper in thee instr'nt case'. As the lohrnod Counsel is aware, the discretion given to this court by that provision is su!?ject to the cardinal principle that it must be exercised judicic'usly j' t - - 3 - And as was restated by the Court of Appeel in Fatehali Manji v. R . (1966) EA 343 - See the hoadnote: "In general a retrial will be ordered only when the original trial was illegal or defective; it will net be ordered whore the conviction is set aside because of insufficiency of evidence or for the purpose of enabling the prosecution to fill up gaps in its evidence at the first trial; oven where a conviction is vitiated by a mistake of the trial court for Which the prosecution is.nc;t to blame, it ces not necessarily fellow that a rotrjal should be ordered; each case must depend on its own facts and circumstances and an order for retrial should only be made where the interests of justice require it." Bearing these guidelines in mind, I do not for. one moment think that this is a fit case for ordering a retrial. More so in view of the intimation from the Bar that the appellant has already completed serving the sentence In conclusicn I quash the conviction. The sentence is sot aside - if only as a matter of formality - as well as the order in respect of disqualification. N0 Tabera, D. P. MAPIGANO, 25th June, 1977 JUDGE. S