19881208 TZCA Dar es Salaam2

.,..,.. . - .... IN TIIE COURT OF APPEAL OF TANZANIA 40 ~' ,":..:f-· AT IlivTANZA ( CORA.Ms Nyalali, C.J ., 1 Maka.me, J J\.,. and Omar, J .A•) CRUITNAt~ APPEAL NO• 136 OF 1988 1. 2• SALU.NGINGWA KISANDU LUGOBOLA ?. o . . . . . . . . ., • • • ., •• ., ., • • • • • • • ., ., . . . . . . . . & • • APPELLANTS And THE REPUBLIC •o~•-····················••o••···· . ··••o••·••e RESPONDENT ,,,, (Appeal from the co11viction and sentence of the High Court of Tanzania at. Mwanza.\)(W.rwalusa.nya, J.) Dated the 1st dey- of September, 1988. in Criminal Sessions Case Nb 1 6 of 1987 JUDGEMENT OF THE COURT NYALALI 1 C.J' •: T'.a.e appellants, namely SAW tJGINCMA and KISANDU WGOBOLA. 1 .were jointly charged in the High. Court at Mwanza with the offence of murder c~trary to section 196 of the Penal Code, but were convicted on their own plea for the lesser offence of mrui.slaughter, contrary to section 195 of the Penal Code, and each wa.s sentenced to eight yea.rs 1 ~i.somn8Di:• Each of the app~llants was aggrieved by the sentence, hencG this appeal to this court. Mr. Butambala, learned advocate, appeared for the nppellants wherea$ Mr. Mussa, learned state attorney, appeared for the Respondent/Republic,, Oho ground of appeal was submitted in the memorandum of appeal, and it states: "That the sentence of eight years'imprisonment meted ou-t against foe appellants was severe•"• In sentencing the appellants the learned trial judge had this to s~i "Tb.is is a be.d case of manslaughter• The accused used. excessive force in 1Jeating the deceased with a hoe-hand.le on the head, which. is a delicate part of the body• In order to chastize the girl they should only have slapped her or beaten her with a small stick. What they did ought to be condemned. Talcing all the circums·cances into account, I sentence the accused to eight years' imprisonment eaoh•"• •. , t If - 2 ""' We are not quite su:te about the meaning of the expression used by the learned trial judge in his first sentence quoted above. We do not·'tbi.:nk that a c;:i.se of manslaughter can lJe either good or bad.. What we think the learned trial judge had in mind is that this ce,se is a 1Jorder line case between murder 2.nd manslaughtere The appellants struck the decec",Sed on the head with a hoe-handle, an action which could be. construed to mean that the appellants intended to lcill the J deceased, rather th3.n to che.stize her for eloping with a man. B"Eiaring in mind that the maximum sentence for manslaughter.. is_ life imprisonment, we do not think the,t the sentence of eight yec1.rs' imprisonment is manifestly e:iqessive_.. We are bound to dismiss the ,., •.... .. .. __.,:....., .- ~ - appeal, a:1:d- f!~" or11c~~-a¾ccordin.;ly. ~~ ;.,.,. ,'·i' ,,,...,, .... --·~ -·---. ··, ~-°') D)\IJ.1ED., at I\~iANZA 'thfs -8th day of December, 1988. ·r:t . I_.·,,-' . - )~~\ • I • ~ '. \ c., ' t' -~ ! ir:. ' ·.. , . 1 ·Yi:.;~. .. ·• •. -.,, / ~~ ' ---_..,__~_-/ •. . . _.; F. L. NYALALI ·•.,.... .. ~ ·- ~ •·- -: - _ CHIEF JUSTICE . --~,-,. Lo M., MAKA.ME JUSTICE OF APPEAL . A. M. A. OMAR JUSTICE OF APPEAL ' ~ ./ ' . I de:t'hif'y that this is a true copy of the original ·:\•f:. \, . ,ti-:"· . . , •,~,~:w~•. ,. --.-.::;; _1./A _ _,-4,;,/..t vv - ,;llf (J • II., MSOFFN) SENIOR DEPUTY REGISTRAR