Q&A – 16 August 2010

Criminal action on pending land case

I own a plot of land in Mwanza town. Recently my neighbour who has always been eyeing some portion of my plot started building on my area. I ended filing a case against him at the High Court in Mwanza. While the suit is still pending in the High Court, he complained to the Police that I had trespassed on his plot. I was arrested and there is a criminal case pending at the District Court against me. I am worried I might get convicted and such conviction shall work against me in the High Court? Please advice.
AL, Mwanza

There are a number of High Court judgments which have held that no one can be convicted of an offence of trespass if there is a pending suit in any Court to determine as to who is the true owner of that particular plot.

In your case there are high chances that the criminal case against you will not proceed pending determination of the suit filed at the High Court.

Necessity of bride price

I contracted a Christian marriage with a certain woman. Strangely her father came and took her away against her will, claiming that I did not pay bride price for her. I do not disagree with this but it was due to the amount demanded. Is the father entitled to keep her away from me because of the unpaid bride price? Is bride price a mandatory requirement under the law? Please advice.
BM, Singida

Under the law of marriage act, bride price is not a mandatory requirement. In other words, there can be a valid marriage between a man and a woman, whether bride price is paid or not.

The act of your father in-law taking your wife away from you is illegal and unjustified. In the event your wife is unable to return, you can seek for an order of the Court to compel your father in-law to return your wife in your care.

Sent to jail for driving offence

I have been driving for the past ten years with a class C driving licence. Three months ago I was involved in a road accident near Mlandizi that caused injuries to two of my passengers and five other people on the road side. I was charged with the offence of dangerous driving causing bodily harm. I was taken to Court where the prosecutor happened to be my brother’s friend. He advised my brother that I should plead guilty to the charge so that I get fined. I did exactly what I was told only to find the magistrate sentencing me to imprisonment. My driving licence was also cancelled for three years although I gave reasons as to why my licence should not be revoked, as I have old parents whom I take care of. What should I do? Can I be imprisoned for a traffic offence?
MM, Dar

We assume that your plea of guilty was because of the prosecutors advice and not because you really thought you were guilty. We hence answer your question in that light.

To begin with, the law is clear in that no other person, including your attorney, can plead for you. The accused person must plead on their own after understanding what they have been charged with.

The Road Traffic Act provides both jail sentences or fines, or both jail sentences and fines. As a matter of principle of law, the Courts normally should impose the fine first. That however doesn’t mean that the Court cannot impose jail sentences, where the case renders it necessary to issue such sentences.

From your question we are unsure why you have been imposed with a custodial sentence- the Court should have cited reasons for so doing.

We advise you to appeal the sentence within 30 days of the judgment preceded by a notice of appeal which must be filed within 10 days. If you are time barred, you may make an application to file notice of appeal and appeal out of time, citing reasons for the delay in filing.

Coming to the 3 year revocation of your licence, the Court gives you a chance to state reasons why it should not revoke your licence- the reasons should pertain to the accident and not to your personal family or financial reasons.

For instance, reasons of visibility being bad on the day of accident or the accident was as a result of a mechanical fault, would be acceptable reasons that would assist the Court in making a decision not to revoke your licence.

Picked for murder

A friend of mine and I were enjoying drinks in a bar when I teased him about something he did not like. He punched me in the face and in self defence I knocked him. He ended up unconscious and we rushed him to hospital where he died the next day. I was picked up by the police and have been in remand for the past fifteen months. A number of my friends who have visited me in remand prison advise me that I have been wrongly imprisoned and that I should be charged with manslaughter and not murder. What should I do? I am expected to be taken to the High Court in Dar es Salaam as the Kisutu Court cannot entertain this matter. Please advice?
BK, Dar

The Kisutu Court cannot entertain such matters, and neither can it give bail. It is only the High Court which has jurisdiction to try this case. The information (charge sheet) is prepared by the Director of Public Prosecutions (DPP) and will be read out to you at the High Court.

You must understand that you have not yet been charged as the Kisutu Court only deals with preliminaries that will ultimately lead to trial at the High Court, if the DPP decides so. Also note that it is for the DPP to decide whether you should be charged with murder or manslaughter.

You must understand that you have not yet been charged as the Kisutu Court only deals with preliminaries that will ultimately lead to trial at the High Court, if the DPP decides so. Also note that it is for the DPP to decide whether you should be charged with murder or manslaughter.

From the facts, assuming you are not hiding anything from us, we agree with your friends that you should be charged with manslaughter and not murder. And unless you are charged with manslaughter, you will not be entitled to bail.