Augustine Mhanga v. R., Crim. App. 7-D-69, -/3/69, Saidi J.

 

 Augustine Mhanga v. R., Crim. App. 7-D-69, -/3/69, Saidi J.

            The appellant was convicted of using abusive language c/s 89(1) (a). The particulars of the offence allege that the appellant had used abusive language against the complainant b abusing him “Kuma mayo, Mshenzi “ which was likely to cause a breach of the peace. The Resident Magistrate found there was strong conflict in the evidence of the witnesses called by both sides on the issue whether or not the words “Kuma Mayo” had been uttered by the appellant, as alleged. He found, however, that the words

“bloody fool” and Mshenzi” had been uttered. The appellant was the Officer in Charge of the Manyoni Police Station. The complainant was one of his subordinate police officers. At the relevant time the appellant discovered the complainant drinking in one house in the town in the company of six laymen. The pombe which was being drunk was alleged to be illegal and the house was not a licenced pombe shop. From what the appellant stated, he at once tried to intervene. At first he was not aware that a police officer was in the crowd and once he spotted him he called him out and scolded him for drinking and encouraging other persons to drink illegal brew. The appellant stated that the complainant and the others were drunk and refused to cooperate with him. He says that he then left and went to call police officers to help him to arrest the owner of the premises. By the time he returned he found the complainant had already gone to report to the Regional Police Commander that he had abused him “Kuma mayo” and from that report the charge was brought against him.

Held: “I am in agreement with the learned State Attorney that it is doubtful whether the alleged offence … had actually been committed by the appellant. The word which is relevant as found by the learned Resident Magistrate is “Mshenzi”. Even if it is assumed that it was actually uttered by the appellant, the question is whether it was likely to cause a breach of the peace in the manner it was uttered. The complainant himself is a police officer and is a subordinate of the appellant. He himself was at fault in going to drink illegal brew at an unlicenced place and at such an odd time. In fact the appellant called the complainant out of the crowd and then spoke to him personally. It would have been a different matter if the appellant had abused the whole crowd as by doing so it might be expected that hey might react violently and would go to a fight which would cause a breach of the peace. But this is not what happened.” Appeal allowed.