Mushi, J.: Scolastica Paulo, the appellant, in this case, was charged with two counts. In the first E count she was charged with the offence of using abusive language c/s 89 (1) of the Penal Code. And in the second count, she was charged with malicious damage to property c/s 326 (1) of the F Penal Code. She was convicted on both counts and sentenced to a fine of shs.1000/= or six months' imprisonment in default on the first count and shs. 2000/= or six months' imprisonment on the second count. It was further ordered and I quote:- G
"In the event of failure to pay the alternative sentences of imprisonment to run concurrently".
Scolastica is appealing against both convictions and sentences imposed on her. H
Before I deal with the appeal, I wish to correct one error which was committed in sentencing the appellant. As I have quoted above, the trial court ordered that in default of payment of fines the alternative sentence was to run concurrently. This is not allowed by law. The proviso to section 36 of the Penal Code reads and I quote: I
A Provided that it shall not be lawful for a court to direct that a sentence of imprisonment in default of payment of a fine shall be executed concurrently with a former sentence under section 29 (iii) (a) or with any part such sentence.
B What this section means, and it has always been the practice in the courts, is that where a person is convicted on more than one count and the court is minded to impose a sentence of fine and in default of the payment of the fine an alternative term of imprisonment is imposed, then such term of C imprisonment in default of the fine cannot be ordered to run concurrently. The order of the trial court that the sentence of imprisonment in default of fine should run concurrently is accordingly quashed.
Turning now to the appeal itself, as far as the first count is concerned, I am satisfied that the appeal D was lodged without any sufficient ground of complainant. The evidence was overhelming and those who testified were, as the learned trial magistrate found truthful and believable. There is no question at all that the appellant uttered the abusive language which was, to say the least, very vulgar. The substance of the abuse was, more likely than not calculated to cause a breach of the E peace. The sentence imposed can not be said to be excessive. The appeal on this count is dismissed in its entirety.
As regards the second count, the evidence is not cogent enough to support the conviction. The evidence on record merely states that the appellant uprooted poles worth shs.4,000/=. There is no Finformation as to what type of poles these were and in what manner they were uprooted and for what purposes they were erected. Furthermore and most important there is no evidence as regards in what manner the said poles were damaged. The mere fact that the appellant may have uprooted G some poles does not necessarily amount to malicious damage to those poles. Section 326(1) of Penal Code under which the appellant was charged creates an offence only when some one:
... wilfully and unlawfully destroys or damages any property...
H Unless it is shown that by uprooting a pole that pole was destroyed or damaged, the act will amount to a criminal offence under the section. For these reasons, the appeal in the second count is allowed. The conviction is quashed and sentence is set aside. The fine which was paid is to be refunded to the appellant.
I Appeal allowed.