R. v. Mwakahabala Crim. Rev. 61-D-71; 10/6/71; Mwakasendo, Ag. J.

R. v. Mwakahabala Crim. Rev. 61-D-71; 10/6/71; Mwakasendo, Ag. J.

The accused was charged with and convicted of reckless and negligent acts c/s 233 (c) of the Penal Code. The fact admitted was to the effect that the accused set fire to his own shamba in the neighborhood of Kwafungo Sisal Estate. Unfortunately the fire spread into the Sisal Estate causing damage estimated at Shs. 5,500/-. The issue was whether or not the facts disclosed the offence for which the accused was charged, the essence of which was endangering human life or creating the possibility of causing harm to a person.

            Held: (1) “It seems to me that on a proper construction of s. 233(c) of the Penal Code no person can be convicted of an offence thereunder unless his rash or negligent act or omission in dealing with the fire or any combustible matter which is in his possession or under his control endangers human life or is likely to cause harm to any other person. ‘Harm ‘in this context is harm as is defined in s. 5 of the Penal Code, that is, ‘any bodily hurt, disease or disorder whether permanent or temporary’. In view of this unambiguous definition of ‘harm’ it is perfectly plain that s. 233 of the Penal code were never intended to apply to loss or injury to property.” (2) Conviction quashed, sentence and order of compensation set aside.