kishiwa so mabula others vs republic 2008 tzhc 115 24 november 2008

IN THE HIGH COURT OF TANZANIA AT TABOR A (Tabora Registry) DC) CRIMINAL APPFAL N 0 . 1 6 5 CF 166 CF 167 CF 168 OF 2 0 0 7 ORIGINAL CRIMINAL CASE NO. 373 OF 2005 OF THE DISTRICT COUR OF BARIADI DISTRICT AT BARIADI BEFORE; - E.G. NJIU. DISTRICT RESIDENT MAGISTRATE KISHIWA S/O MABUI.A AND OTHERS................ APPELLANTS (Original Accused) VERSUS (Original Prosecutor) JUDGMENT 15/ 10/2009 & 24 / 11/2008 KADURI. I. The Appellants were charge with the offence of .Arson C/s 319 of the Penal Code. The first Appellant was convicted with the offence as charged while the 2nd, 3rd an d 4 th Appellants were convicted with the offence of Being Accessories after the fact. For the offence of arso n the first appellant was sentenced to 30 years im p riso nm e n t and the rest were s en ten ced to seven years im prisonm ent. On the 30th day-of November, 2005* th e house of Sayi s / o Kalulumila was set on fire. The house was completely burnt down. Also b u rn t down was a building where a milling machine was installed. These houses to g eth er with the milling machine were com.plerely destroyed. The incident took place during the m orning at around 11.30 a.m. The evidence jor1 tin* p rosecution .relies on identification by PW.l Sayi s /o Kalulumila, PW.2 Amosi s /o Sayi and PW.3 Kabati Kalulumila. And the Appellants gave defence of alibi. Mr Mokiwa, the learned State Attorney did not su p p o rt conviction. He r ' . - ~ . . that all th*3. appellants 1> their right to call witnesses in their defence. The court reco rd shows that w hen the case for the prosecu tio n was closed all the appellants o p te d to defend themselves on o ath an d they nam ed w itnesses they would call to testify in their defence. This is fo un d at P. 15 Qf the type proceedings. Surprisingly when each of t h e m h a d testified in his defence, the trial Magistrate proceeded to set the date for judgm ent. This is fo u n d at P. 19 of the typ ed proceedings. With due respect, I agree with the learned State Attorney that denial of the right to ‘ call witnesses in their defence, occasioned a miscarriage of justice on the part of the appellants. For the foregoing reason I quash the conviction of all the appellants. They are to be set free unless otherwise lawfully held. JUDGE Date: - 24/11/2008 Coram: - Hon. S.B. Bongole - District Registrar. Appellants: - Absent. Respondent: - Mr. Abdallah State Attorney for the Republic. C.C.: - Mr. Z.K. Zongori. COURT: - Judgment delivered. S.B. DISTRICT REGISTRAR 3