19930209 TZHC Dar es Salaam

IN THE HIGH COURT OF TAN~iiliIA AT DAR ES SL.LA.!~ ~--=--- ~-------.c-.a.. ..~~-&.. . : - • - ........... APPELLATE JURISDICTION (PC) HIGH _COURT CRIIUNJJi APPEAL N0.13 OF 1993 < {'OR.JGIN AL CRIMINAL APPEAL NO. 3 OF 1993 OF THE DISTRICT COURT OF. KISJ,..:l.AJE DISTRICT AT KISARAWE ORIGINAL CRIMINAL CASE NO. 190/92 OF MKUR.ANGA PRIMARY COURT BEFORE.:- F.E.J. MUYA ESQ., DISTRICT MAGISTRATE SADIKI MOHAMED KIYEGENI •••••••••••• APPELLANT . ·.. (O.RG. ACCUSED' versus MJ/;.BU OMli.RI i\~UJtI• • • •. •, .• • ..••• ~ESPONDENT (ORG•. PROSECUTOR) J U D. GM E N T •...a......c.-4<-..a... .A. •. .:s •. ·.:t......-. ..... -..c,_ -.~C;.;.;-4-.:6 This is a se.cond appeal by Rajabu Omari Rukali against the decision ~f. th'e lower court_s. The primary eourt at Mkuranga dismissed the charge and acquitted the . . respondent, Sadik! Mohamed Kiyegeni who was charged with criminal trespass. The appellant,1s appeal to the district court at Kisarawe was dismissed, and he now appeals to this court. In his evidence, the a~pellant said that he had purchased a piece of land and that the respondent sold a portio.n of that land, The witnesses who gave, evidenee did not even know for sure· the bound·eriea •! the land which the appellant had pu:rchased. Even the appellant,himself was not aware of the bounderiee.- .However, th~re was clear evidence that the part1e• 1 ~•rms shared a common boundery. A witness ~alled by the app.allan:t hir!L$e lf 7 ~~ 5.91.emani~ •aid t.n.at . ., ~ - 2 - the respondent had occupied the land. in dispute for eight years without any complaint. It seems to me that the dispute between the parties is over the piece of land Hhich the respondent allegedly sold •. It is, therefore, a matter >hich should be resolved by instituting civil proceedings. Furthermore, there is absolutely no evidence that the respondent had committed any criminal offence. If a person alleges that the land he is occupying belongs to him, or moves into the land 1 and peacefully resists any interfe.rance by anyone else, that is not· criminal trespass.-. The ingredients of the offence of criminal trespass must be proved, and they include an intention to commit an offence or to intimidate. Section 299(~) of the Penal Code provides as follows: 11 .Any'person who unlawfully entar.a into or upon property in the possession of anotner person with intent to •~mmit an e£fence or to intimidate, insult ~r annoy any person in possession of such property, i~ guilty of the misdemeanour .. termed criminal trespass. 11 In this case, there was no evidence that the respondent had unlawfully entered into the appellant•s 1.\ land·. There was no evidence that the respondent intended to insult, annoy or ~mmit any offence on the land·,-;:' ~bJ,.s . , was a matter of civil nature whereby'the partiee ara. disputing over tlie ownership ·,.f land. The ingredient• for the offence t! eriminal in1;eapMs were not prevea·• Both lower courts:properly found that the appellant failed to prove the· ease again.st_ .Jhe respondent·. I Ul'ha~ the order for the ~equ.i ttal oft the· respo:p.dent, !f the appellant wishes, he'may file• ~ l ~ t against the respondent for the land in· dispute.,. The appeal is d:Lsmis.s.e.d with _.i'~ts, () ~. - .. ~-A <.v, ., ,., • 1, .! W• J. MAINll DAR ES SJJ.iAliM iV.P. .~ 9th F~bruary 19~j · ., . Appe,llant and B.&SI>OlldeJ.'.l't SX'~ present.,