19851111 TZHC Musoma

IN THE HIGH COURT OF T1\?J:2 '~:~IA AT .MWANZA. (R. C.) CIVIL AHlAL NO. 13 of L98'f (From the decision oft the District Court of Musoma in Civil Case No. 9 of 198~) MULAIY1:i3A NYAKABI ••••••••••••••..•.•••.••••.• , • APPELLANT Versus }'lJ NUB I MU SOMA ooo••o••••·••••••••••••·•••• •••••• RJ!.'SPONDLJ\1T. JUDGlMENT. T:·1e appellant was the d.efen•ant before tte Reside,'.tt Tfagistrate' s Court at Musoma. The respondent sued him for recovery of Shs.20,000/- damages for assault. In his evi~ence the respondent averred that on 5/ 4/83 at a village called Bulingf,Musoma :Jistrict, the appellant shr-t him with an arrow and caused him to suffer a severe wound. That the appellant was charged, convicted and fined Shs,300t/-. In his defence the appellant ·'d•nied.that he stabber\ tl1e rr :1pond.ent with the arrow. He said it was the respondent who attacked fi·rst and had a panga. He (appellant) defended himself by gra~bing his attacker. They wrestlltd and both of them fell down. In that f'trugglE' the panga cd and injured the respondent. The trial magistrate found tnat the 3fpellant had in fact wounded the respondent with an arrow ar:d awarded Shsc 20, 000/- damages.; The appellant appealed. In his memora11dum t:f' arglled that there was n• r. evidence to prove the respondent's claim. In alternative he charged that the d2mages were execessive; The ·appeal against liability has no merits, Therrcspondent.produdeA a copy of judgment :i,n Cr. C. 181/83 in which the :District Collrt 6f Musoma convicted the appellant for oausing grievous harm to the respondent and fined him Shs. 3000/-. The judgment has not been upset and it holds good. Section 43A o.f Evidence Act provides. that such a judgment is a conclusive proof. The trial magistrate was right in holding him liable to dama1ses. As for the quantum I am inclined to agree that it is manifestly excessive. ' The respondent lost nothing 31: l the wound has since healed. The damages are for pain and suffering on:..~, from the day he was wounded till when he recoveredo I set asicle tber ,;1w3rd of Shs. 20,000/- and sui.-- st i tute thereof the .one of Shs. 10, too/-. A?Peal allowed to that extent. Each party to bear its own costs~ MUSON'l.A. ffL., .F.l]~;~~A 11/11/85 •··