19880805 TZHC Dar es Salaam

IN TH1 HIGH COUh:T UF '.l'n.l~Z .. NIA ;-..lJPELi,ATE JU.t,ISDICTION HIGH COUi-<T CRIIvilNi,1 nPPt.ii.L NO. 9?/b7 UrlIGINhL CRIMINnL Ctt~~ NO. 238 OF 19bG OF Till,; liISTiGCT CvUi~T OF ILALA DISTi<ICT AT Kl5'UTU Il.t,;FOR:8 lL·.rtID ES~o S.E.:NI0i< lJISTRICT Mt..Gl$TH1-,TE ulk~CTOH uF PUDLIS ~hO~BCUTIONSo•••••••hPFELi,ANT (Original Prosecutor) versus ilJSuN ~IS Ya~ o . o ~ • • • • • • • • • • • • • • • • • • Kc,Sl-'ONl.JENT (Original Accused) KYi-i.NJ.,O, J: · This appeal is by the Dire~tor of Public Prosecutions. It is the . againstLsetitenoe imposed un the .respondent, Edson Sis.ya~ upon his conviction for the oftenc-- i•·'.·.; - ,,_ i.s described in the charge sheet ·as dangeruus harm c/s 225 of the Penal Code, but which under that sect~on is cal.1..ed grievous harm. The resp0ndep.t stabbed· the complainant in t·he stomach, causing h:i:s intestines 1'o come out. The stabbing occurred in the course of a fight over a watch at the r.;;spondent's · house where the CL'r::~J.:~i.oant had gone to claim _it ( the watch) from respondent's sister-in-law, .N~1.a., to whom he ( the complainant) had· lent., On.getting to the huuse ~he. complainant only found the wife of the respondent; she told him that the watch was with the respondent_: and he was out·, whereupon he decided to' wait for him (the r~spondent)~ . He waited till .v.oo porn. when the re.spondent returned. On claiming the watch from him, the ·re[:pondent refused ·to return it -.o complainant~ alleging that he (the COTO!J)A;..,,,..,,-1:) WiS running with Neela. A fight then ensued in which the complainant was stc.bbed as explained above. This was on 19th February, 19U6 at about 8.oo p.m., at Msasani, var es Salaam, and he had to be hospitalis~d for seven days at the Muhimbili Medical Centre. The trial Mug:i .c::+-..n+p (Hr,r;_di SDM) 1 after convicting the respo- ndent, impos-ed o. sentence of shs. 3,QOO/= fine or one (l) year's imprisonment.· He also macle un order for compensation of s~.1500/=) .. It is aga·inst this sentence that the Di?P is appea.ling, .'fhe ground of appeal in the petition of Apveal on· this point contends that the_ trial magistrate· erred in law anti fact in."imposing a sentence whit>h h~ving regard to the facts and circumstances of the ease is~1lMtlt inadequate.!..! Defore me, at the heuring of the appeal, the LJ~P was· represented by Mr. Senguji, learned §taie Attorney, and the ~es~ondent appeared in person. Nr. Senguji argued in his submissions at the hearing of the ••••••• /2. - 2 - appeal that the sentence impose4. 'was UlB,Q.e{LUB-te- ~onoi(l(.ri.llg -the nature of the ofience and the cir<:ums~ances in which it was committ~«. He said there was no reason for the respondent to stab the complainant an~ the stabbfng was so grievous thbt he (the respoiident) shoul.4 have. been ~barged with attempted murdt:~-• He also contended that at the sentencing sta~e the respondent ~ave no mitigating factors for the offence. he sllid the section of the .Penal Code creating the offence provides for a maximv.m pen&lt1 of seven years for the offenoe and the sentence imposed in ·this case was far too below that. He praye4 t~t I set it aside an<l impose instead oae that would meet the justice of the case. Sentencing is a discre\ionary power, though, as with all discre~iOl!la ary powers, the discretion must be exercised judicially. Further, the principles upon which an appel.1ate court will a.ct in exercising it• jurisdiction to review sentences are now firmly established. In the case of 0CmL0 s/o 0W0.!IB!!_V. hl!iGINAM, 21 EJ.i.Cii., 270 the Court of .hppeal for East hfrica stated those principl!;;.., ---~ • e 11 fhe .-Court· does not alter a sentence on the mere ground .. . that if the memb~rs of the court had been trying the ap~ellant they might have passed a somewhat different sentence ancf it will.not ordinarily interfere with the diser~tion exercised by a trial juuge _unless,_ as it was said in James y.H. · (1950) l,oEACA 147, 0 It is evident that the. j~dge has act~d upon some wrong principle or over- looked some material f~ctors. To this we would also adQ u third criterion, n~mely, that the ■ entence is manifestly excessive in view of the circumstances of the case; .1.-<. V. bhershewsk.y (1912) 2.b TLR 364 CCJ.a.. 11 (Underlining adde~), It also would C.PI;•i~ that where u sentence is manifestly ~adequate os is complained in this case, thut also would be a ground for a court, on ap~eal, to alter a senten,e imposed by a trial mugistrate 1 (see The virector of Fublic ~rosecutione V.Fideli8 ~rio ~CA2 Crimina& ••• hppeal No. 22 of 19ou (unreported), Now what material were before the learned trial magistrate when considering the sentence to impose on the respondent in Ibis oase? The r¥ord shows that the ~rosecutor informed the cou-t that he {the respondent) was a first offender. That was all tbat was said on behalf of the pros~cution on the question of sentenee. ~he reepondaat, in mitig~tion, · stated that he h&d a wife and one child. The~ the trial magistrate imposed the sentence ehown above. Did he err in the exercise of. the sentencing powers he had in imposing that sentence? I am of the view that he did not, The sentence he imposed was within 3 his competence to impose. The. r~spondent, as already indi-cc:-;ted, was ~ a first of.i'endero May be if he hud been tried before me I might have imposed a somewhat higher sentence, but I a@ far from satistied that . so the one imposr;d by the trial magistrate in this "ase wat_ inanifestl:y: inadequate as to cause me to alter it as contended by the DlP. If the offenoe amounted to attempted murder as is contended no reason was giveri why he was not charged wit•h that offence.. '1.n_d 1 is it n"ot the case th.o.t the stabbing occurred in a fi• ht, at the respondent's home 1 where the complainant had gone? It would ap1-,ear tha:t he ( the complainant) is the one ·whop'e"-''H,.l;c.:Yand caused the fight to take n place, I find no justification for interfering with the sentence imposed.by the lower court in this case and I dismiss -the appeal brought by the llFP against it. ( Jtrvcu.Su Sgd. L.A. A. Kyando __i!JLQG,i 5 - h - 1988 - .1-1.ttorney,and in the absence of the respondent. JUlJGE u.11.lt .l!,b ~rtLiu,M ?.tJ,?-_~. . ugust, 19U8.