19850417 TZHC Dar es Salaam2

IN TI-IB KIGH COURT OF T/iNZAUIA AT D!Jt ES SALJJ\M (-:?c) CR1!UlTAL !J:Pr.:.L no,.3 OF 1984 (Frora the decision of the District Court of Kinondoni at Kisutu in Crirainal Appeal No.9/84) S.AI:b IfIRUTU ·• ·• ·• • ·• ·• ·• , ·• ·• •••••• ·• ·• •• '• ••.• .1.PPELLANT . versus REPUBLIC , ·• ·• • '• ·• :, ·• •• ·• •• • ·• •••••• ·• • , ••• BESPOlifilEJ:TT .J .U D .. G Il'I E N T The Appellant. Saidi Mrutu, wo.s convicted by the Priraary Court at l\'Ia.nze_se of mnl:icious damage to property. He was sentenced to fine of Shs. 500/== or three months ifilprisonment in def'ault·and was ordered to pay.Shs. 2,000/=· as compensation to Ramadhani Juma, The oppellant 1 s appeal to Kinondoni district court wus dismissed. He now appeals to this court. Briefly 9 the evidence.adduced in the trial was as follows. On 29th October, 1983 the appellant hired a lorry to fake sand the site where he was building a house, When the vehicle reached Ba.madhani Jum 1s house, the apI.Jellant got out of the lorry and removed a road barrier which R').filo.dharli had put near his house to stop motor vehicle,s -from passing thnt way. By removing the barriert the appellant alJ.cvmC the lorry to pass to the site where the send was off-loaded, The~e was evidence tl1n t on the way back, the lorry knocked off a part of t:·:c roof. of Ramadhani Juma 1 s house. The appellant's defence wns that aftor removing the road

bar:i.'ier he left the scene and he wss not present when the roof was damaged. Both lower courts held thnt the appellant was responsible fo1· the daaage cnuscd to the roof• The appellant wns convicted of malicious damnge to property. In ·the memorandum of appeo.l the appellant firstly alleges tlut the roof was damaged some other do.y by anotl~er vehicle, not the one he t.r.:di hired. That is against the evidence on record~ 'Ihere was clear evide~ce that the vehicle which the ap:_,ellant hired damaged the roof• Secondl:"s the appellant claims thnt the person who was driving the lor:.i:-y should have been held responsible for damage. Let me poiil;t out that the n:1:~1r:1_>····; - 2 - was charged with malicious d3.1.:iage to property and the lov,er courts had to decide whether the ingredients of the offence were prqved. Ut1der section 326(1) of the P~nal Code, it is provided that any person who "wilfully'' and 11 unlawfullyn destrqys or dataages any property is guqty of a misdemeanour., That is the p:tovision under which the appellant was charged. From the facts of tl1.0 cnse, can it be so.id that the appellant wiJ,fully and unlawfully damaged Ramadhani Junu:ds house? The appellant was not the driver of the lorry which damaged the house ♦. What appeilant did was to remove the road barrier so that the lorry could pass oi;i ita way to off..,.load the sand. There was evidence tbat

the iorry passed safely at first.- On its way baclt,- the lorry hit the roof of Ramadha.:ni I s house. It cannot be said, under the circumstances, tr..atthe dnmage was done wilfulJ.y. The appellant could not be convicted of-nw.li- cious damage to property under these circumstances. The pro- secution ft..iled to prove the engredients of. the offence chargecl. The appellll.nt oay have been unreasonable in allowing the lorry to be driven near the house but tbat does not prove that the damage wns caused wilfully by the appellant. Ramadhani may, if he wishes, file a civil suit for the damage caused. He mny sue the ap1)ellant 01· the lorry driver or both; but the evidence did not establish the charge of malicious danage brought agaimrt the appellant. This appeal is, for these reasons, allowed. The conviction 9 which is not supported by the Republic, is quashed. The sentence and order for coLJ.pens2tion are set aside. 'I'he fine and coapensation which the appellant paid must be refunded to him forthwith. W. J. MAINA

JUDGE .. DAR ES Sill,A.AM. 17th April, 1985. This is to certify _that this is the certified true copy of the originalo i ~!/'--••'/ D~P Y REGISTRAR .. --1.....~- . . . . . -~- -.. . . . ..L.