IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA
IN THE DISTRICT REGISTRY OF MUSOMA
AT MUSOMA
PC CRIMINAL APPEAL NO. 38 OF 2020
(Appeal from the Judgment the District Court of Tarime at Tarime
in Criminal Appeal no. 47 of 2020)
ROBI KENEDY.......................................................... APELLANT
VERSUS
VAILET OOKO......................................................... RESPONDENT
JUDGMENT
5th July and 26th July, 2021
MKASIMONGWA, J.
Vailet Ooko, the respondent herein was arraigned before the Primary
Court of Tarime District at Shirati for the offence of using abusive language
contrary to Section 89 (1) (a) of the Penal Code. It was alleged by the
complainant one Robi Kenedy that, on 18/03/2020 at around ll.OOHrs at
Buriri village within Tarime District the respondent used abusive language
against her.
After full trial of the matter the Primary Court found the respondent
not guilty and she was accordingly acquitted. The appellant was aggrieved
by the decision of the trial Court hence lodged an appeal before the District
Court of Tarime at Tarime. The appeal which was registered as Criminal
Appeal no. 47 of 2020 was not successful. The appellant still dissatisfied by
i
the decision of the District Court she came to this Court armed with
Memorandum of Appeal challenging it. The appeal to this court consists of
four grounds namely in verbatim;
1. That the trial court and 1st Appellate court misdirected
themselves in there (sic) findings on believing that the
appellants witness one Eliza d/o Kenedy was couched to
state her evidence she produced before the court, this
caption was wrongly admitted, not proved.
2. That both lower courts erred in law and in fact when refused
(sic) to consider the evidence tendered by Eliza Kenedy a
witness aged 14 years who was present when the accused
person uttered the said words that ndiyo maana unatombwa
na mtoto wako wa darasa la sita, tena unafirwa pia kuma la
mama yako, the said evidence was very strong to support
the case and when the trial court refused to consider the
same was to loosen the case on the side of the appellant.
3. That the lower courts erred in law and facts to admit the
cooked evidence of the accused person that on 18/3/2020
she was at Kenya without proving the same.
4. That basing on the lack of legal bases on the respondent
who had no even a single witness to support her defence,
the decision passed in his favor was a poor finding and for
that, the judgment was based on unfair hearing, as both
courts (magistrates) have acted as witnesses to the accused
rather than legal actors.
2
Before proceeding further with the matter I find it material worth to
show the material facts of the case one can apprehend from the evidence
on record. They are as brief as that: On the 18/03/2020 the respondent
was on her way to Shirati and the appellant called and informed her that
her (Respondent) children had destroyed the appellant's properties. That is
when the respondent uttered abusive words against the appellant stating
that: "ndio maana unatombwa na mtoto wako wa darasa la sita, unafirwa
na kuma la mama yako". The appellant alleged that the respondent said
those words in the presence of her daughter (PW2). In defense the
respondent stated that on the material date she was not around as she had
travelled to Kenya on 16/3/2020 and came back to the village on the
20/03/2020.
On the date when the appeal came before me for hearing, the
appellant enjoyed the legal services of Mr. Godwill Mweya (Advocate)
whereas the respondent appeared in person. However, before hearing of
the appeal commenced something strange happened. The respondent
sought to speak an indigenous language implying a claim that she could
not speak English or Kiswahili. After listening to the learned Advocate's
submission on the issue of language, the court ruled out that the hearing
should proceed and the parties were allowed to use Kiswahili and or
English.
3
In his submission on the first ground of appeal, Mr. Mweya stated
that the District Court misled itself when it confirmed the trial's court
holding that the evidence of Eliza Kenedy (PW2) (appellant's daughter) was
cooked while her evidence was direct evidence as she was present when
the incident took place. He added that in terms of Section 127 of the Law
of Evidence [Cap 6 R.E 2019], Eliza is a competent witness.
On the third complaint that courts below erred in law and facts to
admit the cooked evidence of the Respondent that on 18/3/2020 she was
at Kenya without proving the same, Mr. Mweya submitted that during trial
of the case against the Respondent the later did not bring any evidence
such as bus tickets to support her statement that on the material day she
was actually in Kenya. Therefore, on appeal for failure to substantiate the
defence, the District Court ought to have revised the decision of the trial
Primary Court.
Lastly on the fourth ground of appeal, the learned advocate
submitted that the lower courts had played the role of a witness when they
held that the respondent was in Kenya and not at the scene of crime on
the material day. Mr. Mweya prayed that this court sets aside the judgment
of the District Court confirming that of the Primary Court which was to the
effect that the Respondent was not guilty. In lieu of it this Court finds the
respondent guilty of the offence he was charged with.
4
When the respondent was asked to reply to the submissions made by
the learned advocate she still spoke in unknown language and the Court
took it that she had nothing in reply save for what is stated in the filed
Reply to the Memorandum of Appeal. That marked the end of the
submission by the parties.
I have attentively gone through the submissions as well as the
records laid before me in this matter. In substantiating the first ground of
appeal the appellant's counsel submitted that according to the law Eliza
Kenedy (PW2) was a competent witness. Therefore, the first appellate
court did mislead itself when it upheld the finding by the trial court that the
evidence given by the witness was just a couched one. In its decision the
trial court found the witness (PW2) not a credible one. Being the court of
first instance, the Primary Court had the advantage of hearing, seeing and
assessing the demeanor of the witnesses. In that premise it is a trite law
that appellate court can not interfere with the trial court's decision on the
credibility of the witness unless there was miscarriage of justice and the
trial court is supposed to state the reason for not believing that evidence.
There are a plethora of decisions on this matter. Just to mention a few; In
the case of Bakiri Saidi Mahuru v. R: Criminal Appeal No. 102 of 2012 at
page 6 the Court cited the case of Omary Ahmed v. R (1983) TLR 32
(CAT) where the court held;
5
"The trial court's findings as to credibility is usually binding on
an appellate court unless there are circumstances on the record
which call for reassessment of credibility".
See also, Jacob Tibi Funga v. R (1982) TLR 125; Antonio Dias
Calderia v. Frederick Augustus Gray (1936) 1 ALL ER 540; Seif
Mohamed E. L Abadan v. R: Criminal Appeal No. 320 of 2009
(unreported). In the case at hand the trial court which had the advantage
of seeing the demeanor of Eliza Kenedy reasoned in the judgment that
Eliza was coached on what to say and that she crammed it hence unable to
properly answer the questions she was asked. As such the Court did not
consider her testimony. Having stated this Court is of a firm view that the
first ground of appeal is devoid of merit and it therefore, fails.
In the third ground of appeal the appellant complained that the
respondent did not bring any bus ticket to prove that she had travelled to
Kenya. I have gone through the court's records and this issue was not first
raised and considered for determination in the first appellate court.
Therefore, this court will not detain itself as it was not raised before. This
ground is also devoid of merit and it also fails.
As to the complaint that the court below turned themselves to be
witnesses when they found and held that the respondent was in Kenya, I
have gone through the courts' records and it is the respondent who stated
6
that she had gone to Kenya for burial ceremony of her aunty and that she
returned back to her home village on the 20th of March 2020. That
evidence given by the Respondent and which is on record eroded the
contention by the appellant which constituted the fourth ground of appeal.
Therefore, that ground of appeal is also devoid of merit and is accordingly
dismissed.
In fine, since all grounds of appeal are devoid of merit, this appeal is
hereby dismissed.
DATED at MUSOMA this 26th day of July, 2021.
E. J. Mkasimongwa
JUDGE
26/7/2021
