republic vs ally 2000 tzhc 2 11 january 2000

IN THE HIGH COURT OF Ti\NZl'.NIA (DAR ES SALiJ-iM DISTRICT REGLS'ITIY) ( OR<IGOlNALCRIMINAL CASE NO. 170 OF 1998 OF 'I'I-Ie DIS'TRICT COURT OF KISA"RiH.JE DISTRICT AT KISARA\.JE) 'lhis is an appea.l by Abdulhaman Ally 8.ga.instconviction and sentence by the Kisarawe District Court. 'ilieappellant Hho vIas charged and c~vipted of two ~~t8 of arson c/s 321 and ,19 respecticely, on 17/6/99 ~~ sentenced to three years imprisonment on each count and the sentences were to run concurrently, The prOsecution'~ case LS that the appellant on 6th October, 1998 at Chamungu, Vikindu Village willfully e~d unlawfully $et fire on the farm and ho~se of Shaban Fupi Alias Makoye (Rv1). Fivepresecution witnes~es teptified including PN1 the compl~inant; however the evidence of PW, the only eye witness iz of great significance to the appel12nt's case as will be seen in the course of the judgment. The tri8.1 District Ms·gistrate ';IaS satie-fied on the strength of the prosecution witnesRes that the appellant ~a~ &uilty as charged and further that the land in dispute in civil case No. 6/97 at Mkuranga Primary Court is not one and the same in the criminC".lcase. The appellant in his defence admitted to have set fire to hi8 farm (shambe.) in the course of prepa.ring for cultivation. He demiedp setting fire to anyone's hou2e in the process. In proof of his claim of right over the ferm (shamba) the appellant tendered as evic1.encecopy of the judgment in civil case No. 6/1997 in Hkuranga Prinary Court dated ::9/12/98. The a.ppellant hrd seccessfully sued Juma Ally (Pl.v2) over the form It/hichis mne and the same boi~f~e~ed.- to in .t~~:.9x~Jn'r~ .~::se. In this appeal he is repreeented by Mr. Rutabingwa learned advoea:'e and has preferred five grounds a.s follo\'Jing:' that the trial Magistrate erred in law and fact on relying on the evidence of FYJ1 and Pw2 without cantioning himself in view of their role in Civi1 Case No. 6/97 nt Hkuranga. Primary Court. ..~ that the tri~l.l t~G.gistra.te erred in findi~:.; that the a.ct of the appell&'1t 1:J<;l,S wilfu1:~nd unle.vTful., that the trial M~gi2trQte erred in holding th~t the land in dispute and the subject matter in civil caBe No. 6/97 was different from the one in this crL~inal case. that it W?$ wrong for the trial Mngistrate to refu~o to give weight on the judgm6nt by the ~~~nga Prim~ry court confirming appellent's claim of right over the diApated lend. thBt appellant's conviction under Section )19 of the Penal code vIas 1j!ithoutcogent proof on the ex:Lstence of the house. Hr. Rutabingv.rasy:bmitting for the appellant heB thpt there was no evidence by the p~osecution that appellant willfully and unlaw full set fi~e to the farm 9nd house. On. the contrary there ip evidence that the land in dispute being one and the ~ame as that in Civil Case No. 6/97 belongs to the appellant in terms of Pv.l~. Further there 1IWB no cogent evidence on the existence of a h.use alleged to hAve been set on fire by the appel1FJnt. Mr. Rutabingvla has also contended that the evidence of the appellant is corroborated by PW3 on ~ the ounership of the Sha'!lbaset on fire in preparation for cul!ivation, a common practice in the area~ Mr. Ntwina, who advocated for the Republic, supported the trial court's finding and conviction follO'vlingappellant O'tID admission to setting five to the shamba in question. Curiously Mr. Ntwina conceded to existence of a th regard to the 0\mersh11' cloud"lnd or confusion 'Vii of the sharnba /la'l1din ~uestion. whereby he urged for a"triql in the interest of justice. tn examination a'l1cl conBidetation of the evidence on record I agree with Hr. RutabiIlooowalearned advocate thet the land in di""pute i,<:; one and the ,same in the civil C8se as well as the criminal case a'l1dthr,t the eppellant is the O~~ of the land. The evidence i~'abound both from the judgment of the Nkurnnga Prim?xy Court end :Pil) SelemWli Saidi, "Tho claims' pctternity to both Jume, Ally PW2 Emd the appellant. It is undoubtedly the "'aIDeshamba which appelhmt ,set on five on 5/10/98. I alf'o find no evidence in support of the second comrt under Section 319 of t he Penal code to the extent that no heuse existed in the shamba. The question which calls for determin~tion i2 v.mether the appellant will- unlq.wfully full y an d... '...... . on t. . set fUJ'e h G s.amba h as charge d· ~n tb.. . t cour;t' ~n e f~rs other words was the appell,mt' ~ a.ction without l'::'I,'1ful ~~ In my considered vie".!in the light of the evidence I do not thin1c ,so. Appellant claim of right Qver the shambc is beyond question, vJhile the setting on fir~4 of< shrunbo..'"i.s in keepin.'S • with the proctice \JhUe prepoxing for cultivation. not withst~nding the fact that the ~lleged offence took place before the judgment in civil c~e No. 6/97 ~roB pronounced. It W~ held by this court ( Duff. J ) in the case of R V IJft.OS E,,ji\KI8ITU ( Crim. Rev. 59-D-67) 1967 HeD 185 th::,.t it would be unlo.1tJful for [\ .E.~son to set fire to hiB o•.. m properiy if Dnother person is in the premises or other buildings "'Jere endo.ngered. In thD.t case it oppeco.red thCi.t only the home of the ,:,ccw3ed 'JIGS d,':\ll1agedcmd thnt cnnnot constitute arson within the menning of Section ~19 of the Penal code .• Furthermore courts ho.ve held th':\t where ~vidence estD..blishes "n o.ccu,~·ed's careless or negligent conduct but does not establish vJilful or unl·o.wful beh:'.viour o. conviction of 2r80n will not st.''Dd. I h0ve fnund no ~!ilful or unlaWful behaviour on the part of the appellant from the evidence on record. In the circum,stances I alla,-! the c-,ppeo.l, qU'·."'h the conviction and set r.-.side the .sent"nce of three ye·':':f'Simprisonment by the trio.l court. Appellant to be set free forth \Jith unless othendse l"'<Jfully held.