IN THE HIGH COURT OF TANZANIA

MUSOMA DISTRICT REGISTRY

AT MUSOMA
PC CRIMINAL APPEAL NO 22 OF 2019
SOSPETER PETRO MAREKERA__________________________ APPELLANT
VERSUS
MKAMA MBELA NDAKI______________________________ RESPONDENT
(Arising from the Decision and Orders of the District Court of Musoma at
Musoma, Mushi RM in Criminal A ppeal No. 43 of 2019 d a te d 25.09.2019)

JUDGEMENT
Date of last order; 30.01.2020
Date of Judgment; 07.02.2020

GALEBA, J.

This Appeal is challenging the decision of the District Court

of Musoma where that Court upheld the respondent's
appeal in that the Primary Court was wrong to award the
appellant certain civil reliefs while determining a criminal
matter. The appellant was aggrieved by that decision and
preferred this ap p eal.
The background is that on 12.05.2018 Mkama Ndaki
assaulted Sospeter Marekera with a club at the head and
the right ieg thereby injuring him. That happened after
Mkama Ndaki had found Sospeter Marekera in his bedroom
with, Akisa Nyauri his wife. According to the evidence of
Akisa Nyaurl Mkama Ndaki cam e in immediately after
Sospeter Makerera had completed the a ct of adultery with
her and that that was the second time.

Following the a ct of assault, Sospeter Marekera filed

Criminal Case No. 66 of 2018 at Mugango Primary Court.
The Primary Court found Mkama Ndaki guilty, convicted him
and imposed upon him a fine of Tshs. 500,000/= or else serve
a sentence of 3 three years imprisonment. In additional to
that sentence, the Primary Court ordered Mkama Ndaki to
pay Tshs. 1,500,000/= as compensation for pains sustained,
to refund Tshs. 350,000 and also to give b ack to Sospeter
Marekera two mobile telephones and other identity cards.
Upon appeal by Mkama Ndaki to the district court, the
latter court confirmed the sentence in respect of causing
injury, but it set aside orders of compensation, refund,
returning of the mobile phones and identity cards on
grounds that such claims were not proved in the Primary
Court. Sospeter Marekera is appealing against the findings
of the district court so that this Court restores his claims as
ordered by the trial primary court.
The issue before me is whether the District Court was right to
partly undo the judgment of the primary court in relation to
civil claims.
In order to establish whether the district court was right or
wrong, we need to investigate the charge which was
presented to the primary court to initiate proceedings. The
substance of the charge before the primary court at
Mugango was as follows;

"KOSA NA KIFUNGU CHA SHERI A : KUJERUHI K/F 228 K/A SURA YA 16

MAELEZO YA KOSA: M KAM A S/O MBELA @ NDAKI unashfakiw a kw am ba
m nam o tarehe 12/05/2018 majtra ya sa a 00:00 hrs usiku huko Bwai
Kwitururu ka fa ya Kiriba Tarafa ya N yanja Wilaya ya M usom a na M koa wa
M ara; bila halali na kw a m akusudi ulimjeruhi ndugu SOSPBTBR S/O PETRO
@ MARE/CERA kw a kum piga na rungu kichw ani na m guuni na ulifanya
hivyo ukijua ni kinyum e na Sheria za nchi hit.
P. P.
h. 4232 PC AZURIA
POUSI M U G AN G O "

Going forward we will be assisted by clauses 2 and 5 of the

Third Schedule to the Magistrates Courts Act [Cap 11 RE
2002] (the MCA) which stipulated the Primary Court Criminal
Procedure Code. Clause 2 provides for criminal penalties
that may be aw arded by a primary court to be prison terms
and fines. Clause 5(1} (b) provides for addition powers of
awarding compensations. Clauses 5(3) (4) (5) and (6)
regulate how primary courts can grant compensations in
criminal proceedings.

In this case although Mugango primary court had powers to

order compensation only to the restricted extent permitted
by the above provisions, but the point is not the powers to
award compensations and other orders it m ade, the issue
was that, in this ca se , no claim for compensation to make
good any injuries that was laid before the court. There was
no proof of any civil relief in the primary court. There was
also no charge in respect of unlawful taking of Sospeter's
wallet or money or telephones or identity cards.

For avoidance of doubt we reproduced the charge sheet

above which was laid before Mkama Ndaki to defend. That
was the only complaint that such court could legally handle
and no more. This Court therefore holds that it was unlawful
for Mkama Ndaki to have been condem ned to pay
compensations or payment of moneys, or be ordered to
return any chattels or items in respect of which no charge or
claim was filed in court, served onto him for him to know of it
all ahead of time and prepare to effectively defend himself
on such charges or claims. The charge that was read and
proved against him did not include anything in the nature of
compensation or repossession of money or recovery of any
properties illegally seized. Therefore this Court has no basis to
set aside the judgment of the district court.

In the circum stances this appeal lacks merit and the same is
dismissed with no orders as to costs. Finally the party
aggrieved has a right of appeal to the Court of Appeal. It is
so ordered.

DATED at MUSOMA this 7* February 2020

Z. N. G aleb a
JUDGE
07.02.2020
Judgment delivered this 7* February 2020 in the presence of
the appellant and the respondent.

Z. N. G aleb a
JUDGE
07.02.2020