Mroso, J.: The appellant was prosecuted in and convicted by the Primary Court of Chimala for the offence of wilfully and unlawfully destroying crops in a maize shamba, contrary to section 326 (1) of the Penal Code. He was sentenced to a fine of shillings I 10,000/= or six months imprisonment. The conviction followed
from a plea of guilty by the accused person. He was also ordered to pay 140 bags of A maize or their equivalent monetary value as compensation to the complainant.
Although the appellant had been convicted on his own plea of guilty, he appealed to the District Court of Mbeya against both conviction, sentence, the compensation order and B an order to pay costs. The District Court dismissed the appeal except for the order for costs which was set aside. The appellant has now resorted to this court on a second appeal.
Both before the first appellate court and before this court the appellant, through his advocate, has argued that his plea of guilty was equivocal because it was not consistent C with the facts which were narrated by the prosecutor and that although the appellant admitted those facts to be correct, a plea of not guilty ought to have been entered against him.
To appreciate the import of this argument it may be necessary to quote at some length D from the Primary Court record.
The charge read as follows:
LKOSA:KUHARIBU MALI K/F 326(1) SURA 16 K.A. HABARI ZA KOSA: Mnamo tarehe 28/4/87 E saa 4.00 asubuhi katika kijiji cha Mabadaga Wilaya na Mkoa wa Mbeya, Nyerera Mainge unashitakiwa kuwa uliswagia ng'ombe zako kwenye shamba la mlalamikaji na kusababisha kuharibu mahindi yote yaliyokuwa humo shambani bila ya halali. F
To this charge the appellant replied "Ni kweli". The court recorded "Anakiri", meaning he admits the charge.
The complainant was asked (by the court) to narrate facts in support of the charge and he said as under:- G
Mnamo tarehe 28/4/87 saa 4.00 asubuhi mshitakiwa kwa makusudi aliswaga ng'ombe wake shambani, ambako kulikuwa na mahindi na ng'ombe wake wapatao 200 waliharibu mahindi yote kwenye shamba la ukubwa wa ekari saba, nilifika shambani na kukuta ng'ombe wa H mshitakiwa wamo shambani wakiwa hawana mchungaji na shamba lote limeharibiwa na kusababisha hasara ya gunia 140. Hivyo niliwakamata hao ng'ombe ndipo mshitakiwa akatokea akiwa amelewa. Tulimkamata na kumleta Mahakamani. I
The court recorded immediately after those facts were narrated that the accused A admitted the facts to be true. The court proceeded to convict the appellant on his own plea of guilty. When the court asked the appellant to state mitigating factors, if any, he is recorded as having said: B
Sina la kueleza lingine ila naomba kumlipa mwenzangu.
It is being argued for the appellant that since the complainant said the appellant was not present at the shamba when he (complainant) found the cattle grazing on his maize crop C and that as there was no mention of anyone who saw the appellant driving his cattle into the shamba, it could not be said with assurance that the appellant wilfully and unlawfully drove his cattle to the maize crop, to destroy it.
Learned State Attorney for the respondent Republic counter - argued that although it is D true it was not mentioned in the facts who had seen the appellant drive his cattle into the shamba and that he was not found in the shamba with his cattle and he only came later in a drunken state, yet the appellant accepted as correct the allegation against him in court that he had deliberately driven his 200 odd head of cattle into the complaint's E maize shamba. The learned State Attorney further said that the fact that the complainant did not see the appellant around when he discovered the large head of cattle in his shamba or that the appellant later appeared in a drunken condition does not negate the fact that he deliberately sent his cattle into the shamba. It is quite conceivable that the F appellant drove his cattle into the maize shamba and thereafter went away to drink his head off.
I find the State Attorney's argument quite tenable. It is thought that the appellant's cattle strayed into the complainant's shamba and, without his (appellant's) knowledge, G destroyed the maize crop, the appellant should have disputed the incriminating facts which the complainant narrated against him. On the other hand, it is reasonable to infer that the appellant well understood the damning allegations against him and knowingly accepted them as correct because such as inference would be quite consistent with the H eventual undertaking by him to compensate the complainant for the loss he had suffered. I, like the two lower courts, find that the appellant's plea of guilty was not at all equivocal but clearly unequivocal. I dismiss that ground of appeal.
I take it, too, that the appellant knowingly accepted as correct the complainant's claim I that his maize shamba was seven acres in
size and that he had suffered an anticipated harvest of 140 bags of maize. Therefore, the A appellant cannot now be heard to complain that he had suffered injustice in not being present when assessment of damage caused to the complainant was being made.
Notwithstanding what I have just said above however, the trial court was not competent to order the appellant to pay back 140 bags of maize or the monetary equivalent of them B to the complainant.
The powers of Primary Court to order compensation are spelt out in paragraph 5 of the Primary Court Criminal Procedure Code, the Third Schedule of the Magistrates' Court Act, 1984. Paragraph 5 (1) (b) of the Code provides that except in a case under the C Minimum Sentences Act which a Primary Court is empowered to try, it can order compensation to the extent of shillings one thousand only.
It is quite pertinent that 140 bags of maize would cost not less that shillings 100,000/=, well above the jurisdiction of a Primary Court to order as compensation. I must, D therefore, quash the compensation order and substitute thereof compensation in the sum of shillings 1,000/= only. If the complainant feels he is entitled to a more substantial sum as compensation, he should file a civil suit against him in a court of competent jurisdiction. E
As for the sentence of a fine of shillings 10,000/= or six months imprisonment in default, the trial Primary Court had jurisdiction to impose and although the fine of 10,000/= was the maximum that court had power to impose, the appellant could hardly legitimately complain against its severity. His illegal act was grossly reckless and irresponsible and I F am not about to fault the lower courts.
For the foregoing reasons, the appeal is allowed only to extent indicated, otherwise it is dismissed.
G Order accordingly.
A