Rwelamila s/o Kaijage v. R. (PC) Crim. App. 9-M-69, 16/1/69, Mustafa J.

Rwelamila s/o Kaijage v. R. (PC) Crim. App. 9-M-69, 16/1/69, Mustafa J.

Appellant was charged with contempt court c/s 114(1) (h) of the Penal Code in the primary court, convicted and sentenced to 4 months imprisonment and ordered to pay Shs. 250/- as compensation. His appeal to the District Court having been dismissed he now appeals to this court. Appellant out down some trees from a shamba which belongs to complaint. It appears appellant and complainant’s father had a disputed about the said shamba a long time age, and that in 1960 it was finally decided the subject shamba belonged to complainant’s father Appellant then knew the boundaries of the shamba and who was adjudged the rightful owner. Complainant succeeded to the shamba on her father’s death in October 1967. A few days prior to the death of complainant’s father appellant apparently entered on the said shamba and cut down 48 trees. Appellant was charge with theft of the trees in Katoma Primary Court and was duly convicted. The District Court on appeal quashed the conviction of theft and directed that appellant be charged with contempt of court c/s 114 (1) (h) Penal Code. Appellant was then charged with and convicted of an offence c/s 114 (1) (h) Penal Code in the primary court.

            Held: “In his appeal before me appellant alleges the evidence adduced does not establish an offence c/s 114 (1) (h) has been committed. I agree. The said subsection reads: “Any person who …. Wrongfully retakes possession of any land or other property from any person who has recently obtained judgment from a court for the recovery of possession of such land or property.” Here there is no evidence of retaking possession any land, nor has the judgment been obtained “recently” – the judgment was obtained about 8 years age. I would have though the Katoma primary court was justified in convicting appellant of theft of the trees, assuming appellant cut down and removed the trees growing on complainant’s shamba.” Appeal allowed.