20111108 TZHC Mbeya

IN THE HIGH COURT OF TANZANIA.

ATMBEYA PCCRIMINALAPPEAL NO.10 OF 2008 (Original Criminal Case No.48/2008 Iyunga Primary Court and Criminal Appeal No.16/2008 Mbeya District Court) FOBER1 WANALI .................................................

VERSUS ESFL1 1OBE T

JUDGMENT 16.03.2010 & 08.11.2011 MSUYA,]: One Robert Wanali was charged before the Primary Court of Iyunga at Mbeya, for the offence of "kukataa kumpeleka mtoto shuIe", meaning refusing to send the child to school. The complainant in this case was Asnati Robert. In the Primary Court the Appellant was convicted for the offence as charged and sentenced to two years imprisonment and was ordered to pay a fine of Tshs.500,000/=. The Primary Court went on to order as follows:- "AMRI: Msh/tak/wa ni mzazi ha/all wa m/alamikaji, hivyo anawajibika kumlea na kumtunza. P/a huduma zote za shu/e" 1 ( Being aggrieved by the decision of the Primary Court the Appelant appealed to the District Court. The District Court upheld the conviction of the Primary Court, but he partly set aside the sentence of two years imprisonment. The fine of Tshs500,000/= was upheld. So the appellant was discharged but he was still required to pay a fine of Tshs.500,000/=. Still aggrieved by the decision of the District Court the appellant preferred this appeal. To prove the offence in the Primary Court the prosecution had three wftnesses whose evidence is to the effect that the appellant has refused to pay school fees for the respondent. In other words the appellant has refused to send her daughter the Respondent to School. On the other side, the appellant is denying to be the father of the Respondent. He says that

the Respondent is not her daughter. Throughout from the Primary Court up to the High Court the appellant has been insisting that the respondent is not his daughter. So there is an issue here which the Primary Court was supposed to seriously consider, that is if the respondent is the daughter of the appellant or not. The respondent alleged that the appellant is the father and he is refusing to send her to School, and the appellant is refusing that he is not obliged to send the respondent to School because the appellant is not his daughter. As we can see from the evidence there is an issue of partenity. Instead of the court deciding for the respondent to show that the appellant 2 is just being stubborn, to be fair the issue of partenity was supposed to be resolved first. In view of the fact that how a days there is a very simple procedure of proving partenity that is of DNA test, the Primary Court was supposed to advise the parties to resolve the issue of partenity first. That is by way of filing a civil suit and when it is proved that the appellant is father of the respondent, that is now when he can be held liable for the offence charged with. For the reasons given above I quash all the proceedings of the two lower courts, set aside the convictions and sentence. Therefore the appeal is allowed. Sgd: U. Msuya

JUDGE 9/11/2010 Date: 8/11/2011 Coram: Hon A. M. Lyamuya, DR Appeliant: Absent Respondent: Absent C/C: Gaudensia Court: Judgment delivered this 8th day of November 2011 in absence of all parties. 3 , Sgd: A.M.Lyamuya ( Deputy Registrar 8.11.2011 - Appellant to be Notified ASAP. Sgd: A.M. Lyamuya Deputy Registrar 8.11.2011 Right of appeal to be explained. Sgd: A.M. Lyamuya Deputy Registrar 8.11.2011 I certify that this is a true copy of the original. Deputy Registrar

HIGH COURT OF TANZANIA

MBEYA 4