YONA MWAKASENDO

Kanalamo v. R.(1971) HCD 435

Crim. App. No.525-D-71; Mwakasando Ag. J.

The appellant was charged with using abusive language c/s 89(1) (a) of the Penal Code. He was convicted by the District Magistrate. The appellant was a primary court magistrate in Mbeya. The complainant was employed as a court clerk at the same court. H had traveled to Mbozi in order to remit revenue collected at the court, to the District court. He returned the same day in the evening & went to the court-house to return books he had taken with him. The court-house was locked and he was told that the appellant had the keys and was drinking in a pombe shop nearby. He went to the pombe shop and found the appellant drinking in the company of other persons. He asked for the keys to the court – house. The appellant refused to hand them over and when the complainant repeated his request, the appellant said ‘Huko Mbozi, ulikotoka ulikwenda kufirwa na D. M.’ i.e. ‘You went to Mbozi, from where you are now returning, tc be sodomised by the District Magistrate.”

            Held:

(1) “On the evidence on record I do not think there can be doubt that the language used by the appellant, which is unquestionably most insulting, was likely to cause a breach of the peace. I am aware as this Court has held in R. v. John (1967) H. C. D. 61 and Mdeha v. R. (1970) H. C. D. 310 that mere annoyance or is pleasure among the recipient of the insults is not enough to ground a prosecution for this offence. In the instant case it is abundantly clear that the words used by appellant ……………. Where such as to incite and did incite the complainant to physical violence.”

 (2) Appeal summarily dismissed.