CRIMINAL APPEAL NO 491 OF 2020 MOI IKWABE MATIKO MOI VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: WAMBALL J.A., KIHWELO. 3.A. And ISSA. J J U CRIMINAL APPEAL NO. 491 OF 2020 MOIIKWABE MATIKO @ MOI........................................................... APPELLANT VERSUS THE REPUBLIC........ ......................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Tiqanqa, J.) dated the 24th day of June, 2020 in Criminal Sessions Case No, 6 of 2019 JUDGMENT OF THE COURT 16th & 19th July, 2024 KIHWELO, J.A.: The appellant, Moi Ikwabe Matiko @Moi was charged by the High Court of Tanzania at Mwanza sitting at Tarime (the High Court) for murder of Nyamahemba Gibita @Wambura on 9th September, 2017 at Kegonga Village within Serengeti District in Mara Region. He was instead, convicted for manslaughter and sentenced to serve a prison term of twenty-five (25) years. According to the information that was laid at his door in the High Court, the appellant was formally arraigned for murder contrary to section 196 and 197 of the Penal Code, Cap. 16 (the Penal Code). The particulars on the information alleged that, on 9th September 2017, the appellant murdered Nyamahemba Gibita @Wambura (the deceased). It was common ground that the deceased died violently. According to the postmortem examination report on his body which was tendered in court during the preliminary hearing and admitted in evidence undisputedly as exhibit "PI", the death resulted from "excessive blood loss follow ing stab wound by sharp object on the posterior superior ilia c spine with visceral injury (ascending colon)." Apart from the postmortem examination report, the prosecution tendered in court, during the preliminary hearing, a sketch map of the scene of the crime which was admitted in evidence and marked exhibit "P2". The question at the trial was, therefore, whether the appellant was the murderer. The appellant refuted the accusation whereupon, at the preliminary hearing, the prosecution expressed its intention of featuring seven (7) witnesses. But when, eventually, the case for the prosecution was presented only three (3) witnesses were featured. On the part of the appellant, he gave his evidence on oath and produced one documentary exhibit. 2 Before canvassing the points of grievance, we find it desirable first, to give essential factual background to the appeal as can be gleaned from the totality of the evidence on record. Briefly, the prosecution case which was believed by the trial court commenced with the testimony of Chawari Nyakimori (PW1), a peasant and resident of Koreli at Mugumu in Serengeti District, Mara Region. His account was to the effect that, on the fateful day on 8th September, 2017 there was a wedding ceremony at Wambura Gibita's homestead where Wambura's son, one Masana Wambura was getting married. According to PW1, the celebrations started at 09:30 in the morning and went on, up until in the evening when the music began and a swarm of people who were around started dancing and feasting. PW1 testified that, the area where the celebrations were taking place was well-lit as there was three lamps which were hanged in the hall. Whilst the celebrations were ongoing at around 04:00 in the morning of 9th September, 2017, the appellant and the deceased began to quarrel for a woman over jealousy and possessive tendencies each one wanting to dance with her. However, those who were around them ably managed to reconcile and calm them for a short while. PW1, recounted in minute detail what happened shortly thereafter. The duo stopped quarrying for a couple of minutes and the deceased decided to leave. However, the appellant who had a knife hidden in his socks went after the deceased and stabbed him from the back, and in the immediate aftermath the deceased was seen falling down. Then, the appellant fled the scene. An attempt was made to rescue the deceased who was clinging to life. The deceased was rushed to hospital upon getting a PF3 from the police, but quite unfortunate, he was pronounced dead on arrival. PW1 went on to testify that, he knew the appellant as someone familiar from the nearby village of Kegonga and that, the deceased was PW l's relative. The violent act marked the end of the wedding celebration. Joseph Gibita Damian (PW2), a resident of Kegonga village testified that on the fateful day he was invited at Wambura Gibita's homestead where Wambura's son, Masana Wambura was getting married. PW2 was entrusted with the role of slaughtering of cows meant for the wedding cerebration. He recounted in minute detail events of the fateful day. In his testimony the celebrations were going pretty well until on 04:00 in the morning when a quarrel ensued between the appellant and the deceased over a woman each one wanting to dance with her. However, PW1, PW2, Wambura Gibita, and Chacha Gibita managed to calm them down, but only for a short while. As the deceased was leaving, the appellant went after him and stabbed him with a knife from the back. According to PW2, the deceased was stabbed on the right side just below the ribs and fell down, and that the knife which the appellant used to stab the deceased in a jealous rage was earlier on hidden in the appellant's socks. According to PW2, immediately, the appellant fled the scene. Apparently, all efforts to save the deceased's life proved futile as he was pronounced dead on arrival at Nyerere DDH medical facility in Mugumu where he was taken for treatment, having received the PF3 from the police. PW2 knew very well the appellant since, the appellant was coming from Nyamitita village where PW2 have a house and was a well-known motorcycle rider at that village. According to PW2, the deceased was laid to rest on 10th September, 2017. Thus, in a nutshell, PW1 and PW2 unveiled somewhat unison tale, as they all testified about events of the fateful day in which the appellant stabbed the deceased in a jealousy rage. On 9th September, 2017, police officer No. G. 3694 D/C Shababi (PW3), was assigned to investigate the brutal murder of the deceased and went to the scene of crime in the company of other police officers, namely, police officer No. F 6875 D/C Nelson, and police officer No. WP 5665 D/C Sijali. According to PW3, the wheels of investigation began at the scene of crime by drawing the sketch map of the scene of the crime (exhibit P2) and searched for the appellant who was nowhere to be found. Later, on 18th April, 2018, PW3 was informed by SP Alfred Kebe that, the fugitive appellant was in police custody at Kahama and on 19th April, 2018 the fugitive appellant was brought back to Mugumu Police Station in Serengeti and on 20th April, 2018 he was interrogated but denied any involvement in the alleged murder of the deceased. On 23rd April, 2018, the appellant was arraigned before the District Court of Serengeti at Mugumu the inquiry court for committal proceedings. Consequently, the present charge was preferred against the appellant. At the conclusion of the case for the prosecution and the defence, the learned trial Judge (Tiganga, J) summed-up the case to the three assessors who sat with him, two of the assessors returned a verdict of guilty of murder against the appellant while the remaining assessor returned a verdict of guilty for manslaughter. Sharing the view with the assessor who dissented with his fellow assessors, the learned trial Judge found the appellant not guilty of murder, but in terms of section 300 (2) of the Criminal Procedure Act, Cap 20 (the CPA), entered a substituted conviction of manslaughter contrary to section 195 of the Penal Code. 6 Undeterred, the appellant lodged this appeal which was initially predicated on self-crafted five- grounds memorandum of appeal lodged on 2nd February, 2021. On 12th July, 2024, the appellant's counsel, Mr. Emanuel Japhet Ndamo Sayi, filed a four-grounds supplementary memorandum of appeal in substitution of the earlier filed points of grievance as follows; One, the evidence of visual identification was absolutely not watertight and, therefore, could not be the basis of conviction of the appellant; two, the appellant was not informed his rights after the postmortem examination report was admitted, in terms of section 291 (3) of the CPA; three, the case against the appellant was not proved beyond reasonable doubt, since some material prosecution witnesses did not testify; and four, the sentence imposed on the appellant was manifestly excessive. At the hearing of the appeal before us, Mr. Emanuel Japhet Ndamo Sayi, learned counsel represented the appellant. On the other hand, Ms. Magreth Bernard Mwaseba learned Senior State Attorney, represented the respondent Republic. Mr. Sayi premised his submission by praying to adopt the supplementary grounds in substitution of the substantive grounds, earlier on lodged in Court. The learned counsel, further prayed and was granted leave in terms of rule 81 (1) of the Tanzania Court of Appeal Rules, 2009 to raise an additional ground of appeal to the effect that, the defence evidence was not considered by the High Court in its judgment. Generally, the appellant maintained that the learned trial Judge wrongly convicted and sentenced him for the ofFence of manslaughter while the prosecution did not prove the case against him beyond reasonable doubt. Mr. Sayi then went on to submit, in support of the first ground of appeal and the thrust of this ground was that, the learned trial Judge erred to convict the appellant relying on the visual identification notwithstanding that, the circumstances of identification of the appellant were not favourable for proper identification. Elaborating, the learned counsel argued that, the testimonies of PW1 and PW2, the only prosecution eye witnesses who testified to have seen the appellant stab the deceased with a knife in a jealous rage were unable to describe whether the circumstances of identification were favourable for proper identification, apart from each one testifying that inside the hall there were a number of electricity bulbs. He took the view that, since it is alleged that the deceased was stabbed while getting out, none of the two witnesses ably described that the circumstances were favourable for proper identification. According to Mr. Sayi the learned trial Judge failed to properly resolve that, the circumstances of identification of the appellant at the scene of the crime on the fateful day were not favourable for proper identification, despite warning himself that, evidence of visual identification is of the weakest kind and no court should act on it unless all possibilities of mistaken identity are eliminated and the court is fully satisfied that the evidence before it is absolutely watertight. The learned counsel referred us to the case of Waziri Amani v. Republic [1980] T.L.R. 250 and Gozibert Henerico v. Republic (Criminal Appeal No. 114 of 2015) [2016] TZCA 660 (26 February 2016; TANZLII) which were cited and relied by the learned trial Judge in his judgment. For her part, the learned Senior State Attorney who stood to resist the appeal, countered that the circumstances of identification of the appellant by PW1 and PW2 were favourable for proper identification, and referred to us conditions that have to be met when courts deliberate on identification evidence as they were clearly articulated in the case of Waziri Amani v. Republic (supra). Elaborating further, the learned Senior State Attorney contended that, PW1 and PW2 had ample time to observe the appellant who was within the hall in which the wedding celebration was taking place. What is more, PW1 was about six paces from where the appellant was, and PW2 even took the trouble to reconcile the appellant and the deceased who were involved in a quarrel that led to a fight over a woman. Furthermore, the learned Senior State Attorney argued that, PW1 and PW2 testified that the area was well-lit the fact which was supported by the appellant himself in his testimony in defence, and finally, the learned Senior State Attorney submitted that, the appellant was someone familiar and well known to PW1 and PW2 as they were all coming from the same village. In all aspects, the learned Senior State Attorney contended that, the obtaining circumstances of identification of the appellant were favourable for proper identification and therefore this ground has no merit. Our first concern in this ground is whether the case before us is one of recognition or identification. Our concern hinges on our evaluation of the evidence on record which conspicuously reveals that the appellant and the two prosecution eye witnesses, PW1 and PW2 knew each other, since PW1 and the appellant were living in nearby villages and PW1 knew the appellant since 1997, while PW2 was living in the same village with the appellant and knew him over 34 years. What is more, the appellant spent the whole day at the wedding event where he was in charge of taking the bridegroom and the best man to and from the barber shop and later on, was part of the celebrations. We are settled in our mind, that, from the totality of the evidence on record, this is a clear case of recognition rather than identification. 10 It is irrefutable position of the law that, where the appellant was recognized by the witness or witnesses who knew him well before the incident, that is a clear case of recognition than identification, and recognition is more satisfactory, more reassuring, and more reliable than identification of a stranger. We held similar position in the case of Lucas Daudi Wage v. Republic (Criminal Appeal No. 555 of 2021) [2024] TZCA 398 (5 June 2024; TANZLII) in which we referred to our earlier decision in Nicholaus James Urio v. Republic (Criminal Appeal No. 244 of 2010) [2012] TZCA 101 (7 September 2012; TANZLII). In the latter case, we quoted with approval the decision of the Court of Appeal of Kenya in Kenga Chea Thoya v. Republic, Criminal Appeal No. 375 of 2006 (unreported). We are of the firm view that, the case before us presents similar situation. All in all, even if we assume for the sake of arguments that, there was an issue of identification, as rightly argued by the learned Senior State Attorney, it cannot certainly be said that, the circumstances of identification of the appellant were not favourable for proper identification and the reason is not far-fetched. In the landmark case of Waziri Amani v. Republic (supra), cited by both learned trained minds, we outlined factors that have to be considered when courts deliberate on identification evidence. These factors are such as; One, the time the witness had the accused under observation. Two, the distance at which the witness had the accused under observation. Three, if there was any light, then the source and intensity of such light; and Four, whether the witness knew the accused prior to the incident. Truly, evidence of visual identification is of the weakest kind and no court should act on it unless all possibilities of mistaken identity are eliminated and the court is fully satisfied that the evidence before it is absolutely watertight. In the appeal before us, with respect, we agree with the learned trial Judge that, there was no possibility of mistaken identity. PW1 and PW2 knew very well the appellant as a familiar person to them, even before the incident, and even then, they spent the whole day with him since they were assigned different roles at the wedding ceremony, and more so, during the occurrence of that incident they were well within the proximity of the area where the appellant and the deceased were quarreling. Whereas, PW1 was within six paces, PW2 went as far as reconciling the duo so that they can stop fighting which they dutifully obeyed before the appellant stabbed the deceased with a knife which both PW1 and PW2 saw it was hidden inside his socks. Furthermore, both the prosecution witnesses and the appellant testified to 12 the fart that, the area was well-lit by electric bulbs. The above being the circumstances, we find the first ground of appeal devoid of merit. The other ground canvassed by the appellant's counsel was ground two in which the complaint by the appellant was on the failure to inform the appellant of his right to require the person who made the report to be summoned in terms of section 291 (3) of the CPA and referred us to page 9 of the record of appeal where the High Court admitted exhibit PI during the preliminary hearing. The learned counsel also paid homage to the case of Rehani Said Nyamila v. Republic (Criminal Appeal No. 222 of 2019) [2021] TZCA 301 (3 July 2021; TANZLII), and urged us to expunge exhibit PI from the record. On our prompting as to the effect of expunging exhibit PI and its consequences, the learned counsel was quick to respond that, death cannot only be proved by postmortem examination report. In response, the learned Senior State Attorney, at first, argued that, exhibit PI was not irregularly admitted, since in terms of section 291(3) the law casts duty upon both the accused and the court to require the person who made the report to be summoned. However, upon our prompting, she retreated and admittedly argued that, the court had a duty to inform the 13 appellant of his right to require the person who made the report to be summoned. However, she was of the view that, this infraction is curable under section 388 of the CPA, and that, the court may still rely on the evidence of other witnesses for the prosecution whose credibility the trial court accepted without question as to the death of the deceased, apart from the medical doctor, and cited the case of Waziri Amani v. Republic (supra), in which the court relied on the evidence of the other witnesses for the prosecution apart from the doctor in resolving the apparent contradiction in the evidence as to the location of the fatal wound. In dealing with this point of contention, we propose to recite the provisions of section 291 (3) of the CPA which provides that: "291-(3) Where the evidence is received by the court, the court may, if it thinks fit, and shall, if so required by the accused or his advocate, summon and examine or make available for cross- examination, the person who made the report; and the court shall inform the accused o f his right to require the person who made the report to be summoned in accordance with the provisions o f this subsection." Speaking of the above provision, it carries with it the mandatory requirement under which the court is imperatively enjoined to inform the 14 accused of his/her right to have the medical officer who conducted the autopsy of the deceased's body and prepared the postmortem examination report summoned for cross-examination. There is a considerable body of case law, see for instance the case of Dawido Qumunga v. Republic [1993] T.L.R. 120 at 123 in which faced with an akin situation we held that: "This is a m andatory legal provision requiring that an accused m ust be inform ed o f these provisions to ■enable him decide whether or not he wants the doctor to be called. We think that the rig h t created by th is section is so vital that every tria l where the accused is unrepresented the court m ust make it known to the accused. This is because the presence o f the doctor in the witness box can make a difference between a conviction fo r murder, m anslaughter o r even acquittal depending on his elucidation o f the cause o f death recorded in the post mortem report. " Corresponding observations were made in the case of Elias Mtati @ Ibichi v. Republic, Criminal Appeal No. 65 of 2014 (unreported) and Sprianus Angelo and 6 Others v. Republic (Criminal Appeal No. 481 of 2019) [2021] TZCA 407 (24 August 2021; TANZLII). 15 In the circumstances, we are of the firm view that, exhibit PI was received in evidence in total disregard of the mandatory provisions of section 291 (3) of the CPA and therefore, ought not to have been acted upon in the subsequent trial. We therefore, find that, this ground of appeal has merit and therefore, we disregard exhibit PI. The next question for our determination is what is the consequences of this disquieting aspect of the proceedings and its effect to the determination of this entire case. With respect, we agree with the convergence of the submissions by the learned trained minds that, cause of death can be proved by other cogent evidence, direct or circumstantial, from which to arrive at a conclusion as to the cause of death. We are fortified in this view by our earlier decision in Joseph Hamisi & Another v. Republic, Criminal Appeal No. 13 of 2019 (unreported). In support of the third ground of appeal, the learned counsel was fairly brief, he contended that, the prosecution failed to call some material key witnesses to testify and specifically he referred to SP Alfred Kebe who was mentioned by PW3 at page 25 of the record of appeal, who ordered PW3 and other police officers to go and take the appellant who was in police custody at Kahama police station. He thus, took the view that, the Court should draw adverse inference and cited the case of Rehani Said Nyamila 16 v. Republic (supra) to facilitate his proposition and urged us to allow the appeal. In response, the learned Senior State Attorney argued that this ground has no merit, in her view, the prosecution ably proved its case through the three witnesses who proved that the deceased was dead and that the appellant was the person responsible. In her view, the arresting officer would have been material witness if there was a cautioned statement tendered in evidence. She further argued that, PW3 ably testified that, the appellant was arrested in Kahama the fact which was also supported by the appellant himself at page 31 of the record of appeal. Illustrating further, the learned Senior State Attorney contended that, although the issue of arrest of the appellant was a fact, however, it was not a fact in issue and therefore it was immaterial to bring the arresting officer to adduce evidence and, in any case, there is no particular number of witnesses required to testify citing section 143 of the Tanzania Evidence Act, Cap 6 (the Evidence Act). She therefore urged us to dismiss this ground. Clearly, the law is perfectly settled that there is no particular number of witnesses who shall in any case be required to prove a particular fact, in terms of section 143 of Evidence Act. See, for instance, Yohanis Msigwa 17 v. Republic [1990] T.L.R. 148 and Aziz Abdallah v. Republic [1991] T.L.R. 71 among our many decisions. Whilst we unhesitatingly accept the above position of the law, we are further of the firm view that, the learned Senior State Attorney was undeniably right in that three prosecution witnesses had testified linking the appellant with the offence and thus it would have been superfluous to call the arresting officer since arrest was not a fact in issue. It is instructive to state that, where the prosecution has left no gap to be filled it will be superfluous and a waste of time and resources to call a witness to testify about any particular fact. The appellant's counsel sought to convince us that the arresting officer was material witness who ought to have been called to testify. Trying as hard as we can to follow the learned counsel's reasoning, we fail to see how could the arresting officer's evidence be of any value in the circumstances of this case in which PW3, a police officer testified everything on what transpired from the day the police were informed about the brutal murder, how the investigation went on and how the fugitive appellant was taken from Kahama police station back to Mugumu Serengeti District where he was later arraigned in court. That said, the third ground is equally dismissed. 18 Arguing in support of the fourth ground of appeal, the learned counsel contended that, the trial court failed completely to consider the defence of alibi despite the fact that it acknowledged at pages 71 and 72 of the record of appeal that, the appellant raised the defence of alibi citing section 194 (4) and (5) of the CPA as well as the case of Kaimu Said v. Republic (Criminal Appeal No. 391 of 2019) [2021] TZCA 273 (7 June 2021; TANZLII) for the proposition that, courts are imperatively required to evaluate and consider the entire evidence so as to arrive at a balanced conclusion. He took the view that, had the learned trial Judge considered the appellant's defence he would have arrived at a different conclusion. In the premises, the learned counsel, urged us to allow this ground. In reply, the learned Senior State Attorney was fairly brief and argued that, the learned trial Judge clearly explained why the defence case was not considered referring to section 194 (4) of the CPA which was not complied with and the case of Hamis Bakari Lambani v. Republic, Criminal Appeal No. 108 of 2012 (unreported). Thus, the learned Senior State Attorney was of the view that, the court has discretion to accord no weight to the defence of alibi which is what the learned trial Judge did in the impugned decision. The learned Senior State Attorney urged us to dismiss this ground too. 19 We have weighed anxiously the learned counsel rival submissions on this raised issue of failure to consider the defence case. There is, in this regard, a long and unbroken chain of decisions of the Court which underscore the duty imposed on the trial and the first appellate court to imperatively consider and evaluate the entire evidence so as to arrive at a balanced conclusion. However, where the two courts below did not consider the defence case, this Court may step into the shoes to evaluate and consider the defence case. Luckily, we have done so in numerous occasions. See, for instance, the cases of Said Peter @ Ndira @ Said Ramadhani v. Republic (Criminal Appeal No. 490 of 2020) [2022] TZCA 362 (16 June 2022), Julius Josephatv. Republic (Criminal Appeal No. 3 of 2017) [2020] TZCA 1729 (18 August 2020; TANZLII) and; Felix Kichele and Another v. Republic, Criminal Appeal No. 159 of 2005 (unreported) just to mention a few. In the case of Said Peter @ Ndira @ Said Ramadhani v. Republic (supra) we quote an excerpt from our earlier decision in Julius Josephat v. Republic (supra) in which we held: '14s already pointed out, the fact that both courts below in the present case did not consider the defence case is, in our view, a misapprehension o f the evidence and entitles us to intervene in an endeavor to put matters in their proper perspective. 20 We have sought guidance from our previous decision on the point in Joseph Leonard M anyota v. R, Crim inai Appeal No. 485 o f 2015 (unreported)." The instant appeal before us presents similar circumstances and, indeed, we are going to take the same route in deliberating the fourth ground of appeal by considering the defence case and weigh it against that of the prosecution and in the end, reach to our own conclusion. As regards to what the learned trial Judge held in regards to the appellant's defence, we wish to let records of appeal at pages 71 speak for itself: "As correctly subm itted by Mr. Binamungu, the defence o f a lib i is provided under section 194 (4) o f the Crim inal Procedure A ct (supra) which require an accused person who intends to rely upon an a lib i in h is defence, to give notice to the court and the prosecution o f h is intention to rely on such defence before the hearing o f the case. Under sub-section (5) if he fa ils to give such a notice before the hearing o f the case, he sh all furnish the prosecution with the particulars o f the a lib i a t any tim e before the case fo r the prosecution is dosed." Furthermore, the records of appeal at page 72 reads: 21 "Ordinarily the principle governing the defence o f alib i was designed to enhance the rule o f disclosure. It is intended to disclose the defence to the investigator and the prosecutor, for them to investigate on the truthfulness o f the defence and take appropriate action or prepare a counter to it Failure so to give notice at the appropriate stage denies the prosecution the opportunity to prepare to challenge. For that reason, I find that the alib i raised by the accused person has not complied with section 194 (4) and (5) for that reasons and on the strength o f the evidence givenf I find the accused person to have failed to call even a witness to prove the alibi. Having considered a ll these factors and the weakness o f the alibi, I decide to accord no weight in terms o f section 194 (6) o f the Criminal Procedure A ct (supra)". Clearly, the above excerpts speak volume in that the learned trial Judge rightly addressed the position of the law as it is. The law under section 194 (4) of the CPA requires the accused to give prior notice of the defence of alibi. The law also took cognizance of some accused persons who would raise the defence of alibi belatedly and therefore, section 194 (5) of the CPA comes into play. In the event that, the accused person relies on the defence of alibi without neither giving prior notice before hearing in terms of section 22 194 (4) of the CPA nor does he furnishes the prosecution with the particulars of the alibi at any time before the case for the prosecution is closed in terms of section 194 (5) of the CPA, the court has discretion in terms of section 194 (6) to accord weight to the defence of alibi or not. The case before us presents, the last option which the learned trial Judge took, indeed, he considered the appellant's alibi and decided to give no weight as conspicuously indicated in the excerpts above. We took similar position in the case of Kubezya John v. Republic (Criminal Appeal No. 488 of 2015) [2019] TZCA 472 (12 December 2019; TANZLII) in which we cited with approval the High Court decision in Masudi Amlima v. Republic [1989] T.L.R. 25 in which it held: "The appellant's defence o f alibi was properly rejected. He did not give the notice required under section 194 (4) o f the Criminal Procedure Act, 1985, t and he did not call the person he claimed was with him a t the time o f the commission o f the offence". To cull from the extracted holding, the appeal before us presents more or less similar circumstances. We think, with respect, that, the argument by the appellant's counsel that the appellant had solid alibi and that the learned trial Judge did not 23 consider that defence is unfounded because as rightly argued by the learned Senior State Attorney the trial Judge considered the appellant's defence of alibi at pages 71 and 72 of the record of appeal and decided to accord no weight. We are satisfied, as the learned trial Judge did, that the appellant's defence of alibi was unfounded. The fourth ground is equally dismissed. The learned counsel, submitted in support of the additional ground of appeal which was argued in the alternative as the fifth ground that, the learned trial Judge imposed a severe sentence upon the appellant, notwithstanding that, the appellant was a first offender and has spent two years (2) in prison while awaiting trial. For his part, counsel for the appellant took the position that, the learned trial Judge did not exercise his discretion properly. Therefore, he called upon this Court to interfere and reduce the sentence, and thus allow the appeal. To facilitate the appreciation of the proposition put forward, he referred to us our earlier decision in the case of Tofiki Juma v. Republic (Criminal Appeal No. 418 of 2015) [2015] TZCA 135 (24 November 2015; TANZLII). In the premises, the learned counsel urged us to allow the appeal. In response, the learned Senior State Attorney was brief and contended that, the sentence imposed upon the appellant was milder considering the fact that life was lost in the appeal under consideration. For 24 one, the learned Senior State Attorney contended that the circumstances leading to the deceased's death were brutal, more particularly, in the light that the appellant stabbed the deceased from the back while the deceased was leaving the scene and the quarrel was over following reconciliation which was brokered by PW2 and others. On our prompting, the learned Senior State Attorney admittedly submitted that, the learned trial Judge did not consider the fact that the appellant was a first offender who spent two years in prison awaiting trial and other mitigating factors stated by the applicant's counsel after conviction. All in all, she stuck to her guns that, the manner the offence was committed, it brings to the fore that, the offence was a borderline between murder and manslaughter and therefore, the learned trial Judge exercised his judicial discretion properly. In sum, the learned Senior State Attorney submitted that the appeal lacks merit and should be dismissed in its entirely. In the light of the foregoing submissions, the real sting of the matter is whether the sentence of twenty-five (25) years is excessive in the circumstances, and if so, whether this Court can interfere it. We feel compelled, at this point, to restate that, there are two fundamental principles to be considered in resolving the above two 25 questions. The first principle is that, unless a statute prescribes otherwise, sentencing is a judicial discretionary function, normally in the domain of the trial court. However, in exercising that function, the court must do so, not arbitrarily, but according to principles of justice, equity, law, rhyme and reason. See, for instance, Mwita Mhere and Another v. Republic [2005] T.L.R. 107 cited in Tofiki Juma v. Republic (supra). The second principle is that, like in all cases of exercise of judicial discretion before interfering with the exercise of lower court's or tribunal's exercise of discretion, this Court may only do so on well settled principles, which are, the Court must be satisfied that the decision is clearly wrong due to misdirection, or because the lower court or tribunal acted on matters on which it should not have acted upon or it has failed to take consideration matters which it should have taken into consideration and in doing so, arrived at a wrong conclusion. There is a considerable body of case law in this, See for instance, Mbogo v Shah (1968) EA 93 and Tofiki Juma v. Republic (supra). As to what transpired in sentencing the appellant in the instant appeal, we let the record of appeal at pages 75 and 76 speak for themselves: "Having considered, the fact that the accused is given a benefit o f being a first offender, and having 26 considered the way the offence was committed, this case is on the borderline o f Murder and Manslaughter, if the court has to take a ii factors especially the aggravating factors; the accused deserves severe punishment as opposed to the lenient punishment as prayed by the defence counsel. It is because the death resulted from fight that is why he was convicted o f manslaughter; However, the conducts o f the accused person after the incident show his guilty mind. This is therefore, an aggravating Manslaughter which deserves him severe sentence. Having considered a ll these, I hereby sentence the accused person to serve 25 (twenty-five) years in ja il." We wish to interpose here and remark that, sentencing is a balancing act between aggravating and mitigating factors, the needs of the community on one hand, and that of the convict on the other. It is for that matter the Judiciary of Tanzania has promulgated the Tanzania Sentencing Guidelines, 2023 (the Sentencing Guidelines) to provide guidance and consistence in sentencing offenders. In the instant case the learned trial Judge seemed to lean more on the aggravating factors and did not take into-account other factors as required 27 by the then Tanzania Sentencing Manual for Judicial Officers which have since been replaced by the Sentencing Guidelines and which has elaborate procedures on how to impose sentence for each category of offence and factors to consider. Had the learned trial Judge considered the sentencing principles above, he would not have arrived to the conciusion he made. Once again judicial officers are urged to apply the Sentencing Guidelines in imposing sentence. Now, considering the seriousness of the crime which is manslaughter in which the appellant used a lethal weapon to stab the deceased, a knife and which was directed at the vulnerable part of the deceased's body. Also, considering both aggravating and mitigation factors and the personal circumstances of the appellant who has six children with no mother to care them as stated in the mitigating factors, and bearing in mind that the appellant has spent two years (2) in prison, we find considerable merit in the submission by the learned counsel for the appellant. Having regard to our finding that the prosecution case was proved beyond reasonable doubt, we dismiss the appeal save for the fifth ground which we have allowed. 28 In the result, we set aside the sentence of twenty-five (25) years imprisonment and substitute thereof with fifteen (15) years from the date the appellant was convicted and ultimately sentenced. DATED at MWANZA this 19th day of July, 2024. F. L. K. WAMBALI JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 19th day of July, 2024 in the presence of Mr. Emmanuel Sayi, learned counsel for the appellant and Ms. Brenda Elisha Mayalla, learned State Attorney for the respondent Republic; is hereby certified as a true copy of the original. 29