Kingo v. R. Crim. Rev. 31-D-71; -/5/71; Mwakasendo, Ag. J.

Kingo v. R. Crim. Rev. 31-D-71; -/5/71; Mwakasendo, Ag. J.

The accused was charged with and convicted of reckless and negligent acts c/s 233 (c) of the Penal Code. He was discharged absolutely under s. 38 (1) of the same code. The case was sent down for hearing on revision so that the accused could be given an opportunity to state reasons why he should not be required to pay compensation to the persons who sustained loss as a result of the fire caused by him. The facts as established were to the effect that the accuses was one of several tenants occupying rooms in house No. 44 Tunduru Street, Dar es Salaam. On he material day, as the accused was preparing lunch over a burning Kerosene Stove, he opened a tin containing petrol and in the course of transferring the petrol into a bottle, the petrol caught fire which destroyed the entire building. Nobody was hurt by the fire but the accused’s fellow tenants lost property worth Shs. 5, 745/-. The learned State Attorney argued that compensation should not be ordered relying on a decision by Bramble J. in Jacob v. R. (1970) H. C. D. 249. In this case cattle, which the appellant was grazing, strayed and damaged some maize plants. The learned judge held, inter alia, that damage to property was not harm within the meaning of s. 233 (c) of the Penal Code. The accuses advances several reasons shy the court should not make any compensation order. He stated that this unfortunate incident was a great shock to him and to his family; that he had a large family wholly dependent on him and that he had no other source of income apart from his salary.

            Held: (1) “The present case is quite different. (Distinguishing Jacob v. R. (1970) H. C. D. 249). Here there is no doubt as to the accused’s guilt nor in my view is there any doubt as to his conduct in this incident being likely to endanger life or to be likely to cause harm to any other person in terms of the operative paragraph of section 233 of the Penal Code. The fact that nobody was hurt in the process is completely

irrelevant for this purpose, so long as the probability of endangering the life of other tenants was all the time present. My view is therefore that this court can require the accused, John R. Kingo, to compensate the persons who incurred loss as a result of the fire caused by him.” (2) “I have seriously considered these representations( i. e. by the accused that compensation should not be ordered) but I am not satisfied in my own mind that these are reasons which would in themselves dissuade the court from  making an order for compensation under section 176 of the Criminal Procedure Code if the court were so minded to do. The reasons required for this purpose must be reasons directly relating to the commission of the offence by the accused. In other words, the reasons advances should go to mitigate the seriousness of the offence itself.” (3) Compensation to be paid to those who suffered considerable loss in consequence of the fire caused by him (i. e. the accused).