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IN THE COURT OF APPEAL OF TANZANIA Jil_DAR ES SALAAM KI SANGA a J. h-~ f.L;~.&2.•.l.!.J...-~tJ.<!. gJ~_(lY,&._-!:.!l:.) CRIMINAL APPEAL NO. 144 OF 1992 BE'IWEEN 1. HUSSEIN OMARI 2. GALUS ZIMANI r. . . . . . . APPELLANTS AND THE REPUBLIC • • • . . . RESPONDENT '' (Appeal from the sentence of the High ___ _court of Tanzania--.t· Morogoro) (Kyand01 J.) dated the 15-th day of May, 1992 in £!:!!!!!_~al Sessions Case No, 31 2f 1991 JUDGEMENT OF THE COURT LUBUVA 1 J.A.: '?he appellant•, Hussein Omari and Galus Zimani were charged ~gethe.r with four others with the murder of Clavery Namhowi, the deceasecl. M: the trial before the High Court (Kyando, J.) sit~!)_g_: at Mfrogoro the appellants were convicted on their own plea of guilty to·menslaughter. They were sentenced to twenty five (25) ! ' year• impriaonment. They are appealing against sentence only. Among-the four ethers·who were charged with the appellants was Chiml)egu l1be•a who at the trial was referred to as the second I '. . accus-ed:11n4 who did n•t plead guilty. After trial he was_ convicted· of murder contrary to Section 196 of the Penal Code and was / aenteneed te death. He is reported to have died in prison. From the evidence on record, it is apparent that the death '•/ ,, I of the de~eased wad a result of mob justice. The prosecution 1; i, i,.•' :f,; l ~ case was that on 11.2_.1990 11t Ruaha Village in Ulanga _Dis·triet a .. t, ..• I , " ' / ' ~ •••• /2 :\ i tf;: ,·:. L._;.::__ .. -··-~---~ --- ~-~· 'l •-- ~-· --.--·.,, ------- --- - ---- ------------- 2 brief case belonging to the first appellant Omari Hussein was allegedly stolen. The deceased was suspected to have stolen the brief case. As a result, the appellants accompanied by the other accused pers9ns went to the deceased 1 s house in search of the brief ~ase~ The deceased was subjected to torture for a prolonged pe;'~ l.asting for about three hours'.' The appellants tied up the deceased with rQpes and then kicked him with fists, sticks and a -.club• Furthe;more, the deceased was also burnt with •fire in the .face.~ ,J\Yl'1at;:~ and his private parts. The deceased sustained se,f~• 1njudet which caused_ his death the same day. lJl ,~his appeal, Mr. Kashumbugu, learned Counsel appeared -~ ;t,,n~ \f.i~,s,t .appe-l-1-en-t. /is i~dicated, he had filed one ground fJ. appeai .against sentence. In that ground, it was stateds "That the sentence of 25 years imprisonment issued against the appellant was on the high side". · ~ ~the hea,ri11g QI thia appeal Mr. Kashumbugu, learned Counsel when ugutng ~.his ground at the prompting of the court sought iea,t:e ~f the l~purt to argue a ground of appeal which was not '! sl)lil_.~1:fied, in the memorandum of appeal. That was done under the _prp~is~in~;¢ Ruie 79 Ca) of the court's kuiel;, 1979. According ~o ~ Kashumb~ the ground which he intended to argue was that the :sentence was manifestly excessive. It should _be reduced. This we ;think waa a correct move on· the part of the learned j,c>Unsel f,oir, 1°\-1-s- COtllfffOn knowledge that an appellate court normal\y ~e• ~I} in_terfere with a sentence merely on the ground ·tha; .:,l¼ih • sentence is on the high side. The application was .thus ,9risnte~ ~···/3 . -) 17···· ___________.____.......,J . j -7 : ,' ' 3 . : .. Elaborating on the ground that ·:·he s;entence wa~ menifestly excessive, Mr. Kashumbugu, learr:13d c=."...tr: ··~l submi :.·:.:::.d that irt I. lmposi-ng ·the--seJ'ltence of 23 .. ye-ars L-- .... ,:...,nmen.t, '-.:'.,t: learned ju~ge did not take into account the miti93'..:5.:'li:J fact:>rs a'._;vanced in favour of the first appellant. The mitigating fs::':ors he said, were that the _appellant was a first o:c'fender and ::":lat the appellant had. pleaded guilty to the o:ffe·::·~e which resulted from mob justice in which it was difficult tb ·" ;;certain the exact share of responsibility of the appellant 1 : participation in the beating of the deceased. Ir, support of h5.~, submission, Mr. Kashumbugu referred to the decision. of thit: court in ·the case _of JOHN NDUNGURU RUOOVIC, Criminal Appe:,·l !'Jo. 181 of 1991 (unreported). The. second appellant, GALUS ZIMANI 7 was reprei;ented by Mr. Maftah, lo::erned counselo :..ikc ::.:; :..:,e case of the first appellant, Mr. Maftah filed and argued one ground of· appeal. He compleined that the ;entence of 25 years im:.;risonment imposed wa·s· inanifestly -exce.ssive. In hii;; brief address to the court,. Mr.Maftah urged the eeurt to reduce the sentence because from practical exp~rience he had learnt.that life imprisonment was interpreted to mean in effect serving in prison for a period ra~g1ng beti/een fit teen and twenty years. On the basis of this practice, he· claimed, in .11 situation such ea this one ir, which life· imprisonment was n•t imposed the sentence of 25 years imprisonment was manifestly excessive. He. prPI"--.. .;i,..., ..:.:,urt to reduce the sentence in reapect of the second appellanto Mi.sa Kor.-sso, leerned Senic;: Ste'::: A'c•Clr.ney fc--.: the Respondent,- Republ~c supported the sentenc~ Sl-\c . rg 1c.:d with f.: ~-:c. that having C' ... ~ ' l . -½--~½-~~~===-=;~-- - • 4 imprisonmert ia not excessive. That was so, ahe contended, when it is taken into account that in terms of Section 198 of the Penal Code, the maximum sentence for mansll!ughter is life imprisonment. . ; we heve considered very closely these submissions by the · leerne, counsel for the appellant• and the responden~, Republic. F'°m the-reco.-d, it is clear that in p~ssihg the sentence against the epp9llants 1 the laarned ·tri-al judge had taken irit:o account t)\e mitiga~n9 fec~ors a~nced ~ th~lr behalf ~the· learned ,puriae\ .whf:. defended thom at; the trial. The judge haying tl\ken l. · l~- pun;. the m1tiget.1ng .f'~toJ;•··St-&•t,eqoricelly stated tht1t despite: the mitiwat19'.,..odi,.enc;ed, the appellants deserved •evel'e penalty fer ~ he.iftOU.s -c.ciinle involved. As a matter fJ1 t ~ 1~ appeer-, ~-0& that the learned. tdal judge properly • & ~ • itew ot' the of·f'ence which he aptly dtiscr1bed: ·\ aThie is a very serious case of ~enslaughter. Ii eetuell¼' ~t"ges on 111Urder. Though the d~easeiil was a _suspected thief the accu,sed had- n~ -"ight to subject him to the vicious end _prfl~ged assaulta_..to .which they -~!li~ted him" • ... ii Wllh ..e~p~ therefo~g, Mr. K8•hunibugui • cGmplt1int that the l-ea-rn~ j\\dgt" did' n.t rsider the mitigatir,g f~tors is not -sup~~~ ,.he ~.-;d• It is baseless and we reject it. -0... t,h.t(l-the, hand §.tented that the~e mitig~t:ing fectora Wel'e ~•J;deted, ay, Hie trial judge, are they such as to waf'i'ari-.t 4:hif ~ ; t : • • 1'1terference with the sentence imposed by ttae ·Ir~ ~ 7 FS4t11t. the ~ end the circumsbinces in whtoll ;the •,s;eased wa• ki,J.ledt we dO not think so. We hold thh •••• /5 .. ,-~ l -·· ·-· --,, ·-· -·:· -.- ·- ·- ·--- .... ---,----'.'r"1,;,; .---- --= .___-;,.__ . - . - ----- --- . ----~--.~._ ·-~-- --- . - ·-·----- ~--==-----------,-,.......,. ... ~.~· :.:·. µ i' 5 . view be6ause it is common knowledge that the Court.of Appeal can only interfere with the sentence imposed by the trial court upon the following conditions: first, it must be satisfied that the sentence imposed was manifestly excessive, secondly, that the trial court in passing the sentence ignored to consider an r important matter or circumstance which ought to be considered and thirdly, that the sentence imposed was· wt'ong in lawl in the· j_l case of SILVANUS LEONARD NGURU'.-IE v REPUBLIC ( 1981) TLR 66 CRIMINAL . APPEAL NO. 34 of 1981, this court had occasi_on tc:> reaffirm these legal"-pri-ncrp1es. In the instant case we agree with Miss-i<orosso-,- learned Senior State Attorney that non~ of these conditions is available to justify the court's interference with the sentence meted out. As correctly pointed out by Miss Korosso, learned Senior state Attorney, th_e case of John Ndunguru Rudovic Criminal . Appeal No. 181 of 1991 (unreported) is not relevant to the ' circumstances of this case. There, the case involved wi:tchcraft i· and the conviction for murder was reduced to manslaughter. . l1- Then we come to Mr. Maftah's submission that the sentence .is manifestly excessive because life imprisonment in practice means serving in prison for a period of between 15 to 20 years. ; I. On this~ we must admit that we have had no detailed practical experience b" __ how the prison a1,1_ti:i~_r', Hes compute the period of imprisonment after the court has passed. the sentence~ At any rate; if Mr. Maftah' s experience on th:ld matter is anythibg to go byj then we see no cause for anxiety or complaint against the seritenca of 25 years imprtsonment. On the basis of such a .! .. 1 practice as urged by Mr. Maftah 9 learned counsel, the appellants , I stand to benefit i~ that ultimately, they will come out ·of prison I• •••• /6 .. ".. - -·, _,,-:-.-.=-= ~.. - - ~ = = • - -·· -~~---~___;;:,J