20050830 TZCA Dar es Salaam

IN THE COURT OF APPE'L OF TANZANIA

AT DAR ES SALAAM ~ . ~ (CORAM: NSEKELA, J.A., MSOFFE, J.A., And KAJI, J.A. CRIMINAL APPEAL NO. 114 OF 2003 ANDREW COLMAN SHAYO .......................... -. .............. APPELLANT

VERSUS THE REPUBLIC ....................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at RM's Court Kisutu, Dar es Salaam) (Luguru, PRM, Extended Jurisdiction) dated the 21 st day of May, 1997 in HC Criminal Sessions Case No. 35 of 1997

JUDGMENT OF THE COURT NSEKELA, J.A.: The appellant, Andrew Colman Shayo, was convicted by the -trial court (Luguru, .. Principal Resident Magistrate, Extended Jurisdiction) of manslaughter contrary to section 195 of the Penal Code. He was sentenced to ten (10) years imprisonment. Aggrieved by the sentence that was meted out to him, the appellant has appe~led to this Court. Mr. Kalolo, learned advocate for the appellant has preferred only one ground of appeal namely_that - 2 "(1) The learned J3rincipal Resident Magistrate, Extended Jurisdiction, erred in law in sentencing the appellant to an excessive term of ten years imprisonment." Mr. Kalolo virtually re-submitted the arguments that he had made before the trial court to the effect that the term of imprisonment was manifestly excessive. He stated that the appellant had readily pleaded guilty to the offence of manslaughter, thereby saving time and costs in conducting a fully blown trial; that the appellant was then a young man aged twenty two years who was married with two children. In addition the appellant had aged parents who were dependent on him for their livelihood. The learned advocate was also of the view that the trial court should have taken into account the fact that· one Ramadhani Nguzo and the :appellant were involved in some sort of skirmish after imbibing some alcoholic drink. On her part, Mrs. Mutaki, learned

State Attorney, submitted that an appellate court should be reluctant to interfere with a sentence imposed by the trial court. She was of the vi~w that the learned Principal Resident Magistrate, Extended Jurisdiction, had 3 taken into account the mitigating circw)llstances that were canvassed by Mr. Kalolo. She added that the offence of manslaughter attracts a term of imprisonment for life and consequently a term of ten (10) years imprisonment was not manifestly excessive. Furthermore, she submitted that the learned Principal Resident Magistrate did not act on a wrong principle and no important factor was omitted from consideration. In sentencing the appellant, the learned Principal Resident Magistrate, Extended Jurisdiction, had this to say - "The court has taken into account the accused own plea of guilty to the charge of manslaughter c/s 195, the court has also taken into consideration the fact that the accused is a young man and the Circumstances 'under which. the offence has been committed. After taking into account all these factors and the seriousness of the offence which has cost the life of an innocent person, I feel that a deterrent sentence is called for hence, I sentence the accused to 10 years imprisonment." 4 It is trite law that this Court wiJJ, be reluctant to interfere with sentences which do not seem to it to be wrong in principle though they may appear heavy

to individual judges. (see: In Nuttall (1908) 1 Cr. App. R 160). An appellate court which is dealing with an appeal against sentence does not simply embark upon the task of sentencing afresh, substituting its own opinion for that of the sentencing magistrate/judge,· and increasing the sentence if it considers it to be inadequate or decreasing the sentence if it considers it to be excessive. An appellate court will only interfere if it is demonstrated that the sentencing magistrate/judge fell into material error of fact or law. Such error may appear in the reasons .given by the sentencing magistrate/judge, or the sentence itself may be manifestly excessive or inadequate, thus disclose error. An appellate court does not intervene simply upon the basis that the members of the cdurt . would . have .·. exercised 'their· discretion differently from the sentencing magistrate/judge. These principles have been stated in a number_ of decisions including R. v. Mohamed Ali Jamal (1948) 15 EACA 126; James s/o Yoram v. R. (1951) 18 EACA 147; Rashid Kaniki v. R. (1993) TLR 258. In the case of ·• 5 D.P.P v. Pyarali Kanji, Criminal App(;al No. 8 of 1981 (unreported), this Court stated, inter alia - "The principles on which an appellate court can interfere with the sentence imposed by the trial court are well established among them being the principle which allows- an appellate court to

interfere with the illegal sentence ·imposed by the lower court, also the principle· which ·allows an appellate court to interfere with the sentence which is manifestly excessive or which is based on improper facts." Mr. Kalolo, learned advocate for the appellant, advanced no reasons to show either that the sentence was unlawful or manifestly excessive. A conviction for manslaughter attracts a maximum · sentence: of life impr.-isonment under section 198 of the Penal Code. The trial court had a judicial discretion to impose a sentence it deemed appropriate under the circumstances. The sentence that was imposed was not unlawful, it was within the range prescribed by · law. We have been unable to discern any error of principle. We see no reason for interfering with the sentence which in our view was neither excessive nor unlawful. 6 In the result, we dismiss the ·app~al. DATED at DAR ES SALAAM this 30 th day of August, 2005. H. R. NSEKELA

JUSTICE OF APPEAL J. H. MSOFFE

JUSTICE OF APPEAL · S. N. KAJI

JUSTICE OF APPEAL I certify that this is a true copy of the original