19760130 TZHC Arusha

IN THE HIGIZ[' COURT 02 TMTZLLNLP AT ;.nusi

APFELLLTE JURISDICTION HIGH COURL CRDIINAL AIEhL NO 400 OF 1974 11 a/r. CRIMINAL APPEAL NO0 401 OF 1974 ORIGINAL CRIMINAL CASE NO. 15 OF 1974 OF THE DISTRICT COURT OF LIONIULT DISTRICT AT i.'IJiSAI BEFORE: C. '7. 'JA, Esci., District Lgistrate LENBAYAY s/o KITESø1. ,• , •• •.• ..... AITELLf.NT _-•;•.•) 1 \ (Original At Accused) ersus TJI.TBLrc •'f._-;\00O.O0OO.,...O.,RESiONDENT '• (Original Iosocutor) -. 'JUDGMENT' .. .: Jo1TT:1\ j. , 0 LEJ iYAY E .StIO SIJGATJ KITUL and hiotherwa. c convictod1nt1y of arson c/s. 319(a) of the renal Code and sentenced to 3 roars" imprisonment. They were also ordorcd to.pal compensatlon. - L'.iJLYAY and ANGi7IJ 'now appeal to this court but net the other accused. The undisputed factAlf the case wore that P.Wily P.W.2 and T.W.8 were students then tempor.ri1y employed by the Range Development Commission at Engasunent. For their accoia....odation they worQ provided with a tent by Government. On the relevant afternoon while at tIeir tent they wore invaded by an armed Ircyp of young masai tribecmon popularly dosOribod in Kinasai as moraiais. They both assaulted the inmates and sot fire to tho• tent thereby comotoly destrojiig it and the personal effects of the student employees. The dispute is whether the appellants were among thoac who 'pwi the tent on fire, LMfBAYAY in his defence admitted he had heon present, but he said he had gene there only, to

intrvoae" in a fight between nornis and he did. n :aricipate in setting fire to the tent. SAI\TGAJU 'on the othoi hand said he had not been present at the scone. Against the defence of LJBLYAY there is evidence firstly, of 2.-i.2 who said that the aipcllailt cane there having a sword and a spear and that there was in fact a struggle between the witness and the appellant as the latter was storming in. Secondly, according to i-.'1.5, a TANU Chairman the appell..;.nG was one of nine noranis who in a meeting ho convened following the incident confessed to taking part in the arson. On such evidence I an satisfied the trial Court was entitled to reject the appellant'o defence that his, role had been no more than that of an intervener, and to convict him of the offence. Tue. . . . .,. • 1• • • . ./ 2 -2 The evjdence againstSLi\iLJ'U is solely the alleged confession. Both P.J.I and the TIU'TU Ciairnanworo clear in their evidejioc; that he athiitted to have taken part in NO setting fire t9khô tent.. It was a Question of , ci'cdibility whether ho in foci :so cci'fossod. In the event the trial court so found.: It wasd poiTb of fact and I have no rasos. t dif:L'er. It is untniia'lo in Lie circuabe.ncos that the .a:ppcllaili; would hHTo nade the conrtession if he had no n f -cc U 1 ui inc ofcsoc and I orld mink he vJa properly convicted. The appeals against conviction are

accordingly diseisssd. The oohtonco thongh severe is net nanifistly excessive and as it •requires the' confiracationof this court it is horobr confirnod. The ccuncd 'c as Toro rderod to .7,l87/75 as coeipcnsatioxn to be apportioned to dovercnont and. the conplairants. T. is both vag-se and partly unsupported by ov.f once The orer siioulcl h'vc scciicd ho ioun to be paid to Goverii-lont and to each of the conIl4ainants iqow, altheugh in the c1ergo tko vaJuc of the c'vernnnit tcaG is stated to be ts.2,200/ there is a000lutol; 110 'evidence as to ilije • Ii was inapropriato thoref ores, . tO order any conponsati&n to be paid for the tent. . .7i, P.7.2 and on inc other. heu, appear io nave lost property worth .1043/=, 2324/= and1475.45, rospeciivel, giving a toual of .4847/45. Jcoordingly, cech of the aocuaod is to Day one third of this sun to be paid ooer j icito to thb conalajnctnts. In the result, the crnpoals are allowed only to the very linited oxici::t just indicated and are otiiorviise Jisr.ioed. , T )) TJ]J(J JudgLion-t delivered in open Ocurt at 4rusha this 30th day of January, 1976. - ITTC'T'( nIT 1' II ,'..-. c) LU.J1 TTTThr - t) L)_1_JL..j,