20100929 TZHC Mwanza

[Y. _,_,- ,/ ,--~ ,r ~ ........,_ ' i ·. : I. I' IN_ THE JiIGH COURT OF THE UNI-TED REPUBL!r:0_:1 F~iA~./ ZA~I_r_-j .[:_;::; - . MWANZA DISTRICT REGISTR~t: ; 11,,• 11), -' 1 ·1!, t , I: f if!:,: ,ii j'. l ;j ij · .: ,·:/• I .. •1 1 111 , AT MWANZA .,,:, f-~·· ' ' 1 't': .:,., .,_ - ,;,. _!Iii - I _; ; i - 1 - • [ \ • '\:1 (PC) CRIMINAL APPEAL NO. 58 OF 2008 ' ., ': (From the decision of the District Court of Sengerema at Sengerema in Criminal Appeal No. 49 of 2007, original Criminal case No. O of 2007 at Sima Primary Court) · · MGANGA ELISHA ....................................................APPELLANT Versus SANYIWA MABADILIKO .......................................... RESPONDENT JUDGMENT 29/9/2010 NYANGARIKA, J. ' • I • I ' ' '. ' The appellant appeared in the Primary~ G<burt! ~of i$ir:na ,, I l I, I 1,1 '/T I I (hereinafter referred t~ as trial court) charged iitti ahd:· c0~vi~rl~d_!!~f --1 :!~ .. I , .., . . . : ·-1 : .-J : . neglecting family c/s 167 of the Penal code {Cap. 16RE 2002} and was sentenced to pay a fine ·of Tshs. 100,000/= or three (3)month imprisonment. The appellant was also ordered to pay compensation to respondent amounting to Tshs. 150,000/= Thereafter, the appellant appealed unsuccessfully to the .District Court of Sengerema at Sengerema (hereinafter referred to as the First Appellate Court) against both conviction and sentence. The I First Appellate Court upheld the conviction but. pa)rtly varied the sentence by setting aside the order of compensation 1- . ;lmpchsed 1 1 oi:/the'. . •; . 1 .f 1j • 1 :-; / --~- ._ ! I -. . i : ~. 1 1 +' j1I ! [ trial magistrate. ::.: I· '! ·I : ' d ·, 'i fill! i , · i ,:: f_,-'~- . ,: : : _,I 1 ----- ~ ~ - - - - - - - - ' - ' - - - ' - - - ~ - -------- - .. ~ ,r • j; ' :j;;~ ! ,. ·. !- Dissatisfied with the decision of the First Appellate Court, the appellant has now appealed to this court. The appellant has registered 4 grounds of appeal and appeared in person. The appeal was heard in the absent of the respondent as she has failed to enter appearance after service per the affidavit by ., -1-- __: . the process server, One, Paul Y. Lufungulo dated 18th September, . I 2009. i I I , ' ' ~' ', , , .,, ' ; ! . d,i,j, :ii 1 / 1,: 'I ' ·I :H1- ijt However, in arguing• the· appeal, the appel:!J:rlt ~aid ··-' I 11! •·1 'Ii !tH~~ :r~Jj 1 . i ill::/, decided to appeal to this court because he was not allowed to call his: witness and the alleged child he is alleged to have neglected, 'was not,,. his own child butthat child was living with the respondent when they were married. On my part, I shall not discuss each and every ground of appeal as filed by the appellant seriatim but I shall discuss all the grounds together and generally. The main complaint by the imposed against him was not Justified. ·- i ftt -~he:· re,~tr~~,!_t/!: appellant is that the offence against him was not Pr$ve9 -.bey?n~. ~easona~le ~oubt. as require~ ~y the law and I ·: .[ : 1 : ; i In its holding, the First Appellate Court, found that there wa_s evidence that the appellant left the Matrimonial roof and went to live 2 . Dissatisfied with the decision '?f the First Appellate Court, the appellant has now appealed to this court. The appellant has registered 4 grounds of appeal and appeared in person. The appeal was heard in the absent of the respondent as she has failed to enter appearance after service per the affidavit by the process server, One, Paul Y. Lufungulo dated 1st~ September, 2009. However, in arguing the appeal, the decided to appeal to this court because he was not allowed to call his witness and the alleged child he is alleged to have neglected, was not his own child but that child was living with the· respondent when they were married. On my part, I shall not discuss each and every ground of ,. ! I appeal as filed by the appellant seriatim but I shall discuss all the ! grounds together and generally.· The main complaint by the appellant is that the offence against him was not pJoved. beyond reasonable doubt as required by the law and( Jhat. /the/ sent~h~~ ! :: I .. , Jtf imposed against him was not justified. In its holding, the First Appellate Court, found that there was evidence that the appellant left the Matrimonial roof and went to live 2 'any person who, being the parent or' guardian or other person having the lawful care or charge of any child whose apparent age is not more than fourteen years and unable to provide for itself, refuses or neglects to provide (being able to do so) sufficient food, clothes bedding and other necessaries of life for the child, so as to injure the health ofthat child, is guilt of an offence" . : ' ' •. i . : :; }i :, Ii : '• . j , L1 ,:IT Both the appellant.and the respondent had\!16 the:thai i ·:i; .J . ~~L~I : ·i. ;_-;, that they had matrimonial difficulties for a long time but that issue can be resolved in a matrimonial court not in a criminal court. In his defence, the appellant had told the trial court that he was taking care of all his children and he was not cross-examined further on this fact. In the case of Cyprian A. Kibogoyo versus Republic, ' . DSM Criminal Appeal No~ BB of 1992{CAJ {Unrepbrted} it yva,~ . . . .· I ' :I ·,. l . ;:i' :i:j. held that "facts not cross- examined upon ar~ fc!ke,n il~_ha;li_ip"fl: . · :: 1 ·-~ . , I 1 . ,, 1 i ~r i:;,j·) i been admitted". If the offence against an accu$~d Qas. not. be:eq. • j q, i I •, established, guilt may not be inferred merely from the accused's unimpressive conduct evidence (see Munya VR [1953] 20 EAC~ 226) 4 , ' Therefore with respect, I differ with thefindings, sentence and order, passed by both the Learned Magistrate's of First Appellant Court and the trial court, on the guilt of the appellant for the offence he was charged with. If the allegations raised by both parties before the trial court had any truth, the best approach in my considered opinion, was to advice the respondent to commence matrim?ni~I . proceeAiQ~S before a matrimonial court instead of a penal acii~ I •· • f " : . ! J Jli!i ':i' ,:i: : ! : : ' ' ' :] ·! 1: 1 : For the reas.ons I have given, the appeal had to be allowed by quashing the findings of the two Court's below and setting aside the sentence. If the appellant had already paid the fine, he should be refunded. Appeal allowed. ~c ~.?It.~ JUDGE AtMwanza 29th September, 2010 5 I