19931125 TZHC Dar es Salaam

IN '.L1:HE HIGH COURT OF TANJANIA AT MOROGORO "-.a.a..'~~~·~-----~. ,.,,.,_,;-_, APPELLN11E JURISIHCTION (PC) CRIMINAL AJ?PEAL NO. 2 OF 1993 (From Masanz,e ,Primary Court Criminal Case· 1fo.163/92 ])istrict Court Criminal Appeal No·. 191/93 ])istrict Court of Kilosa District at Kilosa) · .. I" SEFU NNYAKULU ~ 2( K.iTi;KONJI MALIKANI ·. .- • .-· ••••••• • • • • • • • APPELLA!'fTS 3·.. MAJUTO TIS INI .,·., versus JUMA MAKONDERA RESPONDENT \ J U D G M E N T. ~.:-'-'1:--~-~-..z.:.-~,s:,:.,.:a..._,-.:~----~ ,, • J:- MAPIGANO .,:a.......a:._.,._....., ~ - - - ··'.%-e-r:-::tr r?4C Sitting in appeal 1 the diJtrict court of Kilosa reversed the decision of the primary court at Masal'.llie and convicted the three accused persons of the misdemeanour of malicious damage to property under section. 326 ( I) of the Penal Code'. The mar;istrate did not impose any penalty on the accused. and he did not explain why he refrained from doing so. He however ordered the accused persons to pay a sum of shs'.20,000/- to the e:>mplainant Juma Makondera, as oompensa"'.;ion for the crops that were destroyed. The accused persons were aggrieved by that decision and have appealed to this Court. B'aving examined and weighed the evidence, I think the district court was justified to find that the herd of ~:~ catlle which was under the charge of the accused had trespassed on the shamba of the t'Jmplainant and destroyed his crops. There was cogent evidence to support that finding, particularly the testimony of PW2 Ramadha:ni Hamisi •' who was an independent witness. As just mentioned, the accused persons were then grazing the cattle, and it was in evidence that the destruction of the crops took place in their presence, and that they made no effort whatever to drive out the cattle - 2 - from the shamba·. I am therefore satisfied that the ... conviction was properly had and I hereby affirrp it. With regard to the order/c!J?Jensatioh, which is actually the matter being complained about in this ar1peal, I respectfully agree with the accused persons that it was bad~ There is no trace of evidenbe that the crops destroyed were w~rth 20,000/~. It is true there vias an-. averment in the charge to that effect, but I need not point out that what is alleged . in a charge . .. is not le:sal . _evidence but .. . . ~ ·., merely an allegation, whic_h cannot be acted upon unless· it is proved or admitted unequi?ocally by the person charge:d·. I allow the appeal to the_ extent that it concerns the compensation and diEicharge the order-~ In case he does not knoy-7, the complainant is informed that it is open to him to seek such remedy by way of a civil suit. ])elivered ApJellants present Respondent absent'. D. P. MAPTGAN0 JUTIGE .~-J...-~ 25/11/93