H Maina, J.: The accused was convicted by the District Court at Masasi of arson contrary to section 319 (a) of the Penal Code. The learned district magistrate committed the accused to this court for sentencing under section 171 of the Criminal Procedure Act, 1985.
When the matter came up before me for sentencing, Mr. Boaz, the learned State Attorney submitted that the I evidence on record was insufficient to convict and urged the court to exercise its revisional power
and quash the conviction. The learned State Attorney cited section 171 (b) of the Criminal Procedure Act 1985 A which states of follows:
the provisions of this section shall be so construed as to enable the High Court in its consideration of any case thereunder to exercise its power of revision under section 373 of this Act in the same manner as if the record of the B proceedings had under that section been reported to the High Court for Orders.
In my opinion, when an accused person is committed to the High Court for sentencing, under section 171 of the Criminal Procedure Act, and it appears that the conviction is for any reason bad, the High Court may, instead of C sentencing the accused, proceed to revise the proceedings. That would appear to be the meaning of section 171(6) of the Act. The question now is whether the evidence was sufficient to base a conviction. The only evidence against the accused is of threats which he uttered the day before the complainant's house was set on fire. It was alleged by D the persecution witnesses that the complainant, PW1 Joseph Peter and accused had quarrelled on 25 June 1990. The complainant allegedly assaulted the accused who threatened that he would do something serious to the complainant. On the following night the complaint's house was set on fire as he and his family slept in the house. No E one saw the accused setting fire to the house, but the accused was later arrested on suspicion because of the earlier threats. The learned district magistrate held that the evidence of the threats which the accused had uttered was sufficient to prove that the accused had burnt the complainant's house. As already stated, the threats were Futtered by the accused during the day on 25 June 1990, and the complainant's house was set on fire during the following night. Can the evidence of threats constitute sufficient evidence to establish beyond reasonable doubt that the accused is the person who set fire to the complaint's house? Mr. Boaz, the learned State Attorney, submitted G that the evidence did not prove the accused's guilt beyond reasonable doubt.
The evidence against the accused, is clearly circumstantial. In the case of Simon Musoko v R. [1958] EA 715 it was held that: H
In case depending exclusively on circumstantial evidence, the court must find before deciding upon conviction, that the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other hypothesis than that of guilt. I
A The decision in the Musoko case has been followed by this court in several cases, one of which is Carnal Samson v R. [1972] HCD No. 184. In that case the only evidence against the accused was that he had threatened to kill the complainant or burn her house. Later that same night, the complainant's house was set on fire. The B appellant's conviction was quashed by this court which held that the evidence of threats was inconclusive to base a conviction for arson. As the court stated in the Carnal Samson case, where must be something tangible other than the occurrence of the threatened act to indicate that the appellant did carry out his threat. The fire could have been C caused by numerous other causes besides the appellant, i.e a flying spark, a malicious fellow who had heard the appellant utter the threats, etc." The fact in the present case are almost identical with the Carnal Samson case.
Threats alone cannot be conclusive evidence that the person who uttered the threats has committed the offence, for D as Mfalila Ag. HJ. (as he then was) said in the Samson case "a threat is of the highest value when it corroborates some other evidence in order to link the accused with the offence charged. It is weakest when on its own, for it is E then reduced to mere circumstantial evidence in the form of a disconnected chain."
The evidence in the present case did not prove the accused's guilt, for the reasons given. The conviction which is not supported by the Republic, is quashed and the sentence is set aside. The accused must be released from F custody forthwith unless he is lawfully held on other matters.
Appeal allowed.
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