Katiti, J.: Tilusubya s/o Mwishaki, Musegena d/o Mwishaki, Salima d/o Mwishaki standing in the order of 1st, 2nd and 3rd accused, were before Ukerewe District Court charged for allegedly jointly and together, insultingly and obscenely telling the D complainant as follows:
Malaya, Unalala na mtoto wako, unavaa magunia, unatembea uchi; allegedly in such a E manner as was like to cause a breach of peace. The trial culminated into the conviction of the accused, and the sentencing of 1st accused a juvenile, to six strokes of corporal punishment; and fine of Shs. 100/= or one month's imprisonment in respect of the 2nd and 3rd accused. The 2nd and 3rd accused were further ordered most probably under section 176 of Criminal F Procedure Code Cap. 20 to pay compensation of Shs. 150/= each or distress in default. No appeal has been preferred by any of the accused persons.
When the case came before my learned brother Judge, the said Judge ordered revision G observing, as follows:
To review the order of compensation purportedly made under section 176 of the Criminal procedure Code. There does not seem to be any material loss, or personal injury suffered by H the complainant here in consequence of the offence committed.
In my understanding of the charge and evidence the obviously obscene insults allegedly A inflicted upon the complainant meant, and I have no doubts they did, that she was having sexual intercourse with her children, that she was going nude, naked, and that she was moving about in wretched and wrecked clothing. I have no doubt she was seriously defamed, character assassinated, morally wounded, and I cannot vouch that she B escaped excruciating mental anguish. A breach of peace was imminent. I shall therefore allow myself to surmise that it is for this reason that the trial magistrate ordered payment C of compensation by the accused. It is unfortunate that the trial magistrate made no mention of the legal authority under which he was ordering payment of compensation, but like my learned Brother Judges, I shall again allow myself in the absence of the contrary, the confident unrestricted liberty to presume that the trial magistrate was acting under the provisions of Section 176 of the Criminal Procedure Code Cap. 20, in awarding the said compensation. D
The question that is posed for consideration is whether the victim of abusive language under circumstances contemplated by Section 89 (a) of the Penal Code Cap. 16 is liable for reparations under the provisions of Section 176 of the Criminal Procedure Code Cap. 20. It seems to me that Section 176 of the Criminal Procedure Code does with some clarity state circumstances under which compensation may be ordered. The E precedent for ordering compensation under that section seems to be as follows:
(a) That the victim of the crime must have suffered either material loss, or personal F injury, in consequence of the offence committed and charged, and
(b) That substantial compensation is in the opinion of the court recoverable by the victim of the offence in a civil suit. G
I shall untimorously venture to say that under the Section at hand, the compensation awardable is confined within the above articulated limitations, and that is the victim of the crime may be compensated by a Criminal court where in consequence of the offence the H victim has suffered either material loss, or personal injury and that, substantial compensation is recoverable in a civil suit. These words, or phrases of limitation are not without difficulty of interpretation. In cases of offences which cause material loss, the difficulty may not be obvious, for the value of property involved for instance in offences such as theft, malicious damage to property, arson or obtaining money by false I pretences, or such quantified losses which are the natural results of wrongs committed, may form the basis of
assessment of the quantum of the compensation ordered, or to be ordered by the court. A Under this qualification it would appear that an award of compensation cannot be made in the absence of proof of value of the material loss, otherwise, either, the crime victim is under - compensated and therefore prejudiced thereby, or he/she is over compensated, punitively prejudicing the accused. B
My worry is acute, when it comes to aspects of compensation for personal injury, where even in Civil litigation, damages in respect of the same, are notoriously difficult to assess, and impossible to standardise. But no competent authority has however come up against the awarding of compensation in such cases. Such cases include assaults, causing C grievous bodily harm, unlawful wounding etc. But it should be observed that in these cases, bodily harm is a common denominator, and the prerequisite for conviction, in as much they bear an element of personal injury, a qualification inter alia for the application of section 176 of the Criminal Procedure Code. But, I might add to pre-empt self D deception, that also in other offences such as rape, indecent assault, where the victim may indeed suffer harm, but where such harm is not essential for the offence to be consummated, compensation has more often than not been ordered, or awarded. What appears to be a common denominator in the above two situations, is not personal injury, but generally a physical violation of a person's sovereignty, but differences lying in E variations in severity of illegal acts complained of. The above only shows the courts liberal attitude or stand, in applying section 176 of the Criminal Procedure Code Cap. 20.
In this case, there was no material loss, or at least it was not established. Further I have F not laid my hands, with all the anxiety, on any evidence that shows, that the complainant suffered physical bodily injury. While I am prepared to concede, that, the insults were obviously defamatory, it would be speculative of me to go where the complainant took no initiative to show the same. The complainant told the court below that, the words were unpleasant to her, but I would hastily opine, that the sheer G unpleasantness of a defamatory statement, and perhaps the annoyance accompanying the same, cannot amount to personal injury in the context of Section 176 of the Criminal Procedure Code Cap. 20. Even if the same amounted to personal injury, and I am sure it did not, the court should in my view shudder to avoid compensation in circumstances H such as these. I should imagine, this because first, the trial court is starved of evidence as to the extent of injury - the extent to which the "substantial" amount of compensation awardable, is pegged or tagged for lack of medical report. I experience no surprise, or inhibitions on this aspect, because, the charged section, is not so much concerned with I the
extent of injury to the complainant, if any, as it is with the consequences of the conduct A complained of, to law and order, and public tranquillity. Secondly, in the circumstances of this case, defences that would in Civil litigation reduce damages, are not relevant, nor readily available to the accused, nor within reach of the court, to supply material to the same said court, for making its mind, whether or not in its opinion, substantial B compensation in the circumstances of the case, would be awardable in a Civil Suit. I hope I am not going too far afield to demonstrate my fears, if I envisage a situation, which to all intents and purposes would be applicable here, where a statement complained of is proved beyond reasonable doubt, to have transgressed the charged C section, and hence criminal liability, but is at the same time a true, and fair comment, and therefore a defence in civil defamation proceedings. For the above reasons, I do not think, the circumstances of this case, did justify the application of Section 176 of the Criminal Procedure Code Cap. 20, because of lack of proof of personal injury, and D absence of material upon which to base the decision whether substantial compensation as contemplated by the Section is in the circumstances of the case awardable. Further to apply section 176 of the Criminal Procedure Code in the circumstances of this case would condemn the accused unheard on certain defences that in Criminal proceedings E may not be relevant, but are admissible defences in civil litigation. The compensation order is hereby set aside.