selaka mboka vs modestus joel mboka 2023 tzhc 20375 11 august 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IRINGA SUB REGISTRY) AT IRINGA (PC) CRIMINAL APPEAL NO. 5 OF 2023 (Arising from Criminal Appeal No. 2/2023 of the District Court of Makete before Hon. I. Msacky, SRM, Original Criminal Case No. 116/2022 of the Primary Court of Makete District at Matamba before Hon. J.E. Sikazwe, PCM) SELAKA YALILENI MBOKA ......................................... APPELLANT VERSUS MODESTUS JOEL MBOKA ...................................... RESPONDENT JUDGMENT 12th July & 11th August, 2025 I .C MUGETA, J: The trial court acquitted the appellant of the offence of setting trees properties of the respondent on fire contrary to section 321(a) of the Penal Code [Cap. 16 R.E 2019] for a reason that his prosecution was based on suspicion. He held that none of the prosecution witnesses who are the appellant Modestus Joel @ Mboka (SMI), Rebson Joseph @ Mboka (SM3) and Benard Yoram @ Konga (SM3) saw the appellant starting the fire. The charge was based on the fact that SM2 and SM3 suspected that fire started and spread from the appellant's farm. The appellant in his defence said he was, indeed, at his farm when the fire broke out. He attempted to extinguish it in vain. The respondent was aggrieved by the acquittal. He appealed to the district court on three complaints:- i) . The trial court failed to convict and sentence the appellant when he pleaded guilty which is violative of the procedures. if). The offence had been proved beyond reasonable doubts. Ui). The defence that the appellant just helped to put the fire out was weak. The district court was satisfied that, indeed, the charge had been proved because the appellant started the fire when at his sunflower farm and thereafter escaped. Secondly, that the appellant confessed while at the police station and in court, at first, he pleaded guilty. He was consequently convicted and sentenced to 4 months conditional discharge and to pay Tshs. 1,000,000/= as compensation. The appellant's appeal is founded on the following complaints extracted from his six grounds of appeal: i) . The charge was not proved. ii) . The district court decided the appeal on extraneous matters. Page 2 of 6 Hi). The trial court was right to vacate the appellant's piea ofguilty. Both the appellant and the respondent are lay persons. During hearing of the appeal they just told the court that they have nothing to add on their petition of appeal and the reply thereto. In determining the appeal, I shall start with the third complaint. The trial court's record shows that when the trial commenced, the appellant pleaded guilty. The trial magistrate refrained from convicting the appellant on the ground that he intended to visit the scene of crime first. The case was adjourned to another date for the said purpose. On the appointed date, the appellant was reminded of the charge and pleaded not guilty. On that account, the learned trial magistrate entered a plea of not guilty and a full trial commenced. The scene of crime visiting mission ended there. Finally, the appellant was acquitted. The learned first appellate court magistrate found the procedure adopted by the trial court to be odd and violative of paragraph 32(1) of the Primary Court Criminal Procedure Code which is 3rd schedule of the Magistrate's Court's Act [Cap. 11 R.E 2019]. I agree with him that when the accused pleads guilty he ought to be convicted. However, according to the proviso to that paragraph, sentence can be differed. By practice if the accused person changes the plea before sentence, the court can validly vacate the plea of guilty entered. On that account the trial magistrate did nothing wrong for not convicting the appellant immediately and for vacating the plea of guilty later. Regarding the first complaint, neither SMI, SM2 nor SM3 saw the appellant starting the fire. The circumstances that he was there when the fire started does not irresistibly point to his guilty. Circumstantial evidence ought to be used with circumspection per the rule stated in the case of Hamidu Mussa Timotheo & Another v. Republic [1993] TLR 125. Considering the evidence on record, the trial court was right to acquit the appellant. The appellant's defence that he was at the scene of crime volunteering to extinguish the fire is not a weak defence. It raises reasonable doubts in the prosecution's case regard being to the fact that nobody saw him starting the fire. The first appellate court erred to convict him on insufficient evidence. I move to the second complaint on deciding the case on extraneous matters. Page 4 of 6 Unfortunately, during hearing the appellant did not substantiate the extraneous matters which the first appellate court imported in its judgment. However, my reading of the impugned judgment points out to several matters. Those are that the appellant started the fire when cleaning his sunflower farm. Secondly, that the appellant escaped after starting the fire. Thirdly, that the appellant confessed to the police that he started the fire. None of those facts can be traced in evidence found in the trial court's record. The evidence of SM2 and SM3 is that they found nobody at the scene of crime. In his defence the appellant said after he failed to extinguish the fire, he left for his home. This cannot be called "escape". There was nobody trying to arrest him. On starting the fire due to clearing his farm, this evidence does not exist on record. The least on record is the appellant's defence which is supported by his wife (DW2) that they were planting sunflower in their farm when the fire broke out and they volunteered in vain to extinguish it. The alleged confession at the police station has no trace in the trial court record too. The complaint, therefore, has merits. Page 5 of 6 In the event, I allow the appeal. The conviction entered by the district court is quashed. The sentence imposed is set aside. The acquittal entered by the primary court is restored. I.C. MUGETA JUDGE 11/8/2023 Court: Judgment delivered in chambers in the presence of both parties in person. Sgd. I.C. MUGETA JUDGE 11/8/2023 Page 6 of 6