Mushi, J.: The appellant in this matter is Stephano Rweyendera. The appellant was C charged with three counts. On the first count he was charged with burglary c/s 294(1) of the Penal Code. On the second count he was charged with stealing c/s 265 of the Penal Code and on the third count he was charged with malicious damage to property c/s 326(1) of the Penal Code. He was acquitted on the counts of burglary and theft but he D was convicted on the third count of malicious damage to property and was sentenced to a fine of Shs. 3,000/= or twelve months' imprisonment in default. The appellant was further ordered to pay Shs. 23,750/= to the complainant as compensation for the damaged property. The appellant is appealing against conviction and sentence as well as E against the compensation order.
The appeal against conviction has no merits at all. The evidence of PW 3. - Peter Kamgisha, PW.4 - George Nicolaus and PW.5 - Theobald Kishani were that of eye witnesses who clearly saw the appellant destroy the articles as stated in the charge sheet. F The event was done openly and in a very dramatic way. Many people were attracted to watch the event particularly those tenants who were living in that building, and it included the three witnesses mentioned above. One of the witnesses is a brother-in-law of the appellant who was living in that house and it is most unlikely that he would tell lies G against the appellant. The evidence left no doubts at all that the appellant committed the offence as charged and conviction cannot be challenged. The appeal against conviction is hereby dismissed.
Regarding the sentence, the appellant in his petition has stated that and I quote: H
That under the circumstances, the sentence imposed by the trial court was manifestly excessive and should be reconsidered by your Honourable court. I
The appellant was sentenced to Shs. 3,000/= fine or twelve months' imprisonment in A default. The fine was paid. The maximum sentence provided by law for an offence under section 326(1) of Penal Code is seven years. What punishment to give to a convicted person is a matter within the discretion of the trial magistrate and this court will not B interfere except where it appears that in assessing the sentence the trial magistrate has acted on some wrong principle or has imposed a sentence which is manifestly excessive or inadequate. In this appeal, the appellant has claimed that the sentence of Shs. 3,000/= fine is manifestly excessive. Is there any justification on this point? In sentencing the C appellant the learned trial magistrate had this to say:
Sentence: Accused is a first offender to this offence of malicious damage to property. Accused had alleged to have a sick person who is to date still admitted in hospital. Accused as I had D seen he maliciously damaged PW.2's properties. Accused knew the outcome of his actions. Accused though he is the first offender deserves severe punishment. Accused is hereby sentenced to a fine of Shs. 3,000/= or twelve months imprisonment in default. E
It is a good practice to give reasons why a particular sentence is imposed but whether reasons are given or not, it is necessary for the trial magistrate to seek information on the accused character, antecedents and other relevant considerations before assessing F punishment. However each case must generally be viewed in its own context. It seems to me that in this case the trial magistrate over-looked one important mitigating factor which was available in favour of the appellant and that was that the appellant was forced by circumstances into committing the offence. The appellant committed the offence while he G was under serious provocation. While provocation is not a defence, it is very clear that had the appellant not been seriously provoked by the complainant - P.W.2 - Renatus, he would not have committed this offence. The evidence clearly established that PW2. was on that relevant night found sleeping in the bedroom of PW.1, who was H appellant's wife, where the appellant would have spent the night. P.W.1. Melasiana and P.W.2- Fortunatus were fully aware that the appellant was in town and would in all probabilities spend the night in the matrimonial home. P.W.2.- Fortunatus, however with impunity went to sleep in the bedroom of P.W.1. It was proved that PW.2 had actually I moved and was staying in there. The explanation that PW.2 had only gone there temporarily
to guard the premises at the request of PW.1 does not seem to hold much water as there A was some other person who could have guarded the place without anybody raising eyebrows e.g. PW.5- Theobald. The notion that the complainant - PW.2 had taken over the appellant's wife, even though the wife was not present, would in all probability provoke any reasonable person and the appellant was no exception. The appellant B definitely acted whilst under serious provocation as he would not otherwise have done anything. While therefore that provocation is not a defence, it is however a mitigating factor and in this case it was very important. For example in the case of John s/o Juma v.R. (Criminal Appeal No. 696 of 1969, Mwanza High Court) and R.v Mwita s/s C Muhoni [1969] HCD 47 are but a few cases in which provocation has been taken as a mitigating factor. Had the learned trial magistrate taken this factor into consideration it is doubtful whether he would have found it necessary to impose a severe sentence as he stated. Taking into account the circumstances of this case and particularly the factor D which I have just described above, a sentence of Shs. 1,000/= fine would serve the purpose. The sentence of Shs, 3,000/= fine is accordingly reduced to that of shs. 1,000/=. As the fine has already been paid, the balance of shs 2,00/= should be refunded to the appellant. E
I now turn to the appeal against the compensation order. The appellant in his memorandum of appeal in ground No. 4 states and I quote:
That the nature of the alleged damaged properties was not conclusively proved as was F required. One should have expected PW.2 to produce receipts to prove the costs of these properties. Under the circumstances, the trial magistrate had no sufficient material evidence before him upon which to base his conclusion that the properties damaged were worth shs. 23,750/=. G
The order made by the court was worded in the following terms and I quote:
Order: Accused should compensate the damaged goods properties totalling shs. 23,750/= H
Our courts are empowered to award compensation in appropriate cases as provided under section 176 of Criminal Procedure Code. However, under the said section compensation can only be awarded if: I
The person has suffered material loss or personal injury in consequence of offence A committed; and substantial compensation is in the opinion of the court, recoverable by the person by civil suit.
If the two conditions exist and the court is inclined to exercise its discretion to award B compensation, then after careful consideration the court may order payment of such amount as it seems fair and reasonable. The requirement that the amount must be fair and reasonable entails vigorous judicial assessment of the amount. And naturally it will C involve the accused and the victim as in a civil suit. The exercise may be simple where the figure is admitted or where damage is of readily ascertainable or is of comparatively small value. In this case the court awarded Shs. 23,750/=. It is not clear as to how the learned trial magistrate arrived at this figure. According to the charge sheet, the amount D of damaged property was valued at Shs. 26,200/=. During the trial PW.2 - Fortunatus Rwechungura, whose property was damaged, gave evidence and stated the value of various articles. According to PW.2 his four shirts were worth Shs. 4,000/=, a jacket was worth Shs. 1,800/=, four trousers were worth Shs. 2,000/=; one Oxax E watch was worth Shs. 2,500/=; twelve medical books were worth Shs. 12,000/= and a stethoscope was worth Shs. 2,000/=. According to these figures the total is Shs. 24,300/=. During the trial, the appellant did not cross-examine the witness on the value of the items as was asserted by the witness. This is quite normal and the appellant cannot F be blamed for not having asked such questions. This is so because the main preoccupation of a criminal trial is to establish the guilt or innocence of the accused. The principal aim of criminal law is to punish the wrongdoer. Compensation does not follow as a matter of course in a criminal trial and thus an accused does not bother himself with G the cost or value of the property involved in such a trial. Where however, the court decides to exercise its discretion and award compensation under section 1976 of Criminal Procedure Code, then the propriety of the cost or value of the property in question becomes an issue and thus before a compensation order is made, the accused Hmust be given an opportunity to admit the amount of compensation intended to be awarded or contest it. To make an order without first calling upon the accused to say something will amount to condemning someone unheard which undoubtedly is against the principles of natural Justice. In the case of William Frank Haining and 2 Others v. R. I [1972] HCD 53, the Court of Appeal while considering payment of
compensation under section 176 of the Criminal Procedure Code said and I quote: A
An order under section (176) would usually be made in the application of the prosecutor but if not a court may clearly act on its own accordingly but in doing so it is performing a judicial act B which would materially affect both the party to receive the compensation and the convicted person who has to pay the compensation. It is essential here that these persons, and more especially the convicted person, be given an opportunity of being heard. The convicted person C should be called upon to show cause why an order should not be made. To do otherwise would be a breach of natural justice and would amount to a person being condemned without having a hearing.
In the appeal before me not only that the appellant was not called upon to show cause as D to why the compensation order should not be made, but also the amount of compensation was not readily ascertainable. The figures as given by PW.2 were not supported by documents or some credible evidence. Four shirts were said to cost Shs. 4,000/= which is Shs. 1,000/= per shirt but no receipts were produced. Similarly for all E other items. Where the amount due for compensation would appear to be reasonably large and contentious, it would be wiser to leave the affected person to pursue it in a Civil Court. For the reasons I have given the compensation order offended the principles of natural justice and cannot be allowed to stand. The appeal against the compensation F order is allowed and the said order is accordingly set aside. It is for the affected party to seek remedy otherwise.
G Order accordingly.
A
