CRIMINAL APPEAL NO 416 OF 2021 MARO JOSEPH CHACHA V REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: SEHEL. J.A.. KAIRO, J.A. And KHAMIS. J.A.^ CRIMINAL APPEAL N0.416 OF 2021 MARO JOSEPH @ CHACHA......................................................... APPELLANT VERSUS THE REPUBLIC........................................................................RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma) (Kahyoza, J.) Dated the 14thday of July, 2021 in Criminal Session Case No. 89 of 2020 JUDGMENT OF THE COURT 14th & 24th February, 2022 KAIRO, J.A.: In the High Court of Tanzania at Musoma, the appellant, Maro Joseph @ Chacha was charged with the offence of murder contrary to section 196 of the Penal Code, [Cap 16 R.E. 2002] (the Penal Code). It was alleged by the prosecution that, on 15th day of July, 2019 at Ring'wani village within Serengeti District in Mara Region, the appellant murdered one Ruhuro s/o Geswene. He denied the charge leveled against him, hence a full trial after which he was convicted with a lesser offence of manslaughter under section 195 and 198 of the Penal Code and was sentenced to serve 15 years in prison subject to deduction of the period he has been in custody. The appellant had no qualms with the conviction, but unhappy with the sentence imposed on him. Thus, decided to lodged this appeal to challenge it claiming to be excessive. Initially, his memorandum of appeal contained two grounds of appeal whereby ground number 1 contained two limbs in the alternative. However, the appellant decided to abandon ground number 2 and the first limb of ground number 1. Thus, remained with the second limb of ground number 1 which we have paraphrased it as follows: That the trial court erred in law and fact in sentencing the appellant against the guidance provided by the Tanzania Sentencing Manual as regards death arising from chastisement by a guardian. Brief facts culminated to this appeal as discerned from the record of appeal is that, the deceased and one Jackline Mata Joseph (PW3) were the nephew and niece of the appellant respectively. When the incident occurred, the deceased was 6 years old and PW3 was 8 years old. Following the unknown whereabouts of their mother, the two children were living with the appellant, their maternal uncle as a guardian. That, on 16th July, 2019 around 11.00 hrs, one Dorkas Amos Mugaya (PW1), the appellant's neighbour heard a shout for help from the appellant's house saying "mtu anakufd' literally translated in English to mean "someone is dyincf. PW1 hurriedly ran towards the house and on reaching there, she found a number of women inside the house and the men were outside. She entered the house and found the deceased body lying on the mattress having a swollen face and bruises at the back of his head. PW3 was also present and on seeing her, she went and sat on PWl's lap and told her that she was attacked by bees together with her deceased brother. However, she later changed the story and told her that, they were beaten by their uncle showing PW2 a wooden stick used to beat them. PW1 noticed that, the stick was big like a hoe handle and had some blood. She further noticed that PW3 had swollen eyes and was breathing abnormally. Upon the advise of the appellant's brother; one Maro Nyamarasa, they took PW3 to the police station, and later to the hospital for examination and treatment where she was admitted for three days. At the police station where the appellant went as well, they met No. G.8889 PC Syllivester, (PW2) who was on duty on that date. Maro Nyamarasa told PW2 at the presence of the appellant that, the deceased and PW3 were beaten by the appellant. PW2 noted that PW3 had bruises all over her body and some parts of her body were swollen. On his part, the appellant told PW2 that, PW3 was bitten by bees, which information was also echoed by PW3, but when asked the cause of the bruises, she failed to explain. PW2 did not believe the bees beating story and decided to take PW3 to the office of the Officer Commanding Station (OCS) where she opened up and told PW2 that, she was beaten by the appellant together with the deceased when they went to fetch some water. She further told him that, the appellant beat them with a hoe handle. PW3 begged him not to tell his uncle as he had threatened to beat her again if she would reveal the truth. PW3 went on to tell PW2 that, she suspected her younger brother was no more as he was not breathing when she left him on the mattress. PW2 informed the OC-CID of the story she was told by PW3 and they decided to visit the scene of incident together with the appellant, a doctor and relatives who came to report on the incident. Upon reaching there, the OC-CID ordered the appellant to take them to where the bees were, and he complied. However, they did not find any bee and the appellant told them that he had removed them. Thereafter, they went to the appellant's house. When entered, they found the deceased laid on the mattress which had some blood. They further noted that, the deceased had an injury on the head and legs and the hoe handle alleged to have been used to beat the deceased and PW3 stained with blood. The handle was about 3 to 4 feet long and about IV2 inches wide. The doctor certified death of the deceased whose body was taken for further examination. PW3 was taken to the hospital for treatment. In her testimony, PW3 stated that, she lived with the appellant, their guardian but he sometimes used to beat her and the deceased. She further testified that, on the fateful day, the appellant beat her and deceased and upon realizing that the deceased has died, he started to cry and the villagers gathered at their house. In his defence, the appellant stated that, he neither beaten nor killed the deceased but the children were beaten by the bees, and while running for protection, the deceased fell down and injured on his head. He stated that, he was arrested due to misunderstandings he had with Maro Nyamarasa who fabricated the case against him. At the end of the trial, the court found the appellant guilty of a lesser offence of manslaughter, convicted and sentenced him as alluded to above. When the appeal was called on for hearing, Mr. Paul Obwana, learned advocate, represented the appellant who was also present in Court. On the other hand, Ms. Agma Haule and Mr. Jonas Samuel Kivuyo, both learned State Attorneys, appeared for the respondent Republic. Amplifying on the ground of appeal, Mr. Obwana submitted that, the appellant's grievance was based on the sentence of 15 years jail term imposed on him, which was excessive and contrary to the guidelines prescribed in Sentencing Manual by then, titled: "Tanzania Sentencing Manual for Judicial Officers" published in 2020 by the Judiciary of Tanzania (the Manual) which now has been replaced by The Tanzania Sentencing Guidelines, 2023. Illustrating, the learned advocate submitted that, the Manual had three levels of sentencing; high, medium and low. He went on to submit that, the trial court's findings in the case at hand was to the effect that, the appellant was admonishing the deceased for his mistake as a guardian and in the process, he met his death. He contended that, the prosecution agreed with the said findings following the manslaughter conviction, otherwise it would have appealed against the decision. He referred us to the last three sentences at page 56 which ends at page 57 of the record of appeal to verify the trial court's findings. It was his argument that, the findings denote that, the death was caused by the chastisement of the deceased by the appellant, who was his guardian. As such, the appellant had no intention to kill or cause grievous harm to the deceased. Basing on the guidance in the Manual, the findings ought to attract a low-level category of sentence which for the offence of manslaughter, ranges from conditional discharge up to 4 years imprisonment contrary to the 15 years jail term imposed which falls under the High-level category. Mr. Obwana faulted the trial court for being swayed by the assessors' opinions to the effect that, the appellant used the hoe handle and exerted excessive force when punishing the deceased while the prosecution did not tender it for the trial court's confirmation of its size so as to verify the alleged excessive force used to inflict the said fatal blow on the deceased head as contended by the prosecution. He further challenged the findings of the doctor for not stating what caused the injury found on the deceased's head as there were two hypotheses. Expounding on it, Mr. Obwana submitted that, the defence side associated it with the falling dawn of the deceased when running to protect himself from bees' attack. On the other hand, the prosecution claimed that, the head injury was caused by excessive force exerted by the appellant in beating the deceased by a hoe handle. He argued that, the doctor would have solved that puzzle if summoned. As a conclusion, Mr. Obwana submitted that, in the circumstances of the pointed-out uncertainties, it was an error for the trial court to impose on the appellant the sentence prescribed under the high-level category. He argued that, if the appellant would have accorded a proper sentence, to date, he would have been through with it, considering that, the maximum jail term is four years and he has been behind bars since 16th July, 2019 when apprehended. He added that, to date, the appellant had spent five years and six months in custody. The learned advocate beseeched the Court to quash the sentence imposed on the appellant and substitute it with a proper one. He further prayed for his release considering that, his stay in custody exceeded the maximum jail term that ought to have been imposed under the Manual. 8 In her response, Ms. Haule informed the Court that the respondent was opposing the appeal basing on the same Manual referred to by Mr. Obwana. Clarifying, the learned State Attorney submitted that, the sentence of 15 years imprisonment which falls under the high level category, was appropriate in the circumstances the offence of manslaughter was committed due to the following aggravating factors: one; the appellant's use of the hoe handle to beat the deceased as testified by PW1 and PW3, two; excessive use of force when beating the deceased which was verified by the depressed skull and multiple wounds found on various parts of the deceased body as per exhibit PI, and three; the deceased child falls under vulnerable persons due to his age. Refuting the argument that the offence which the appellant was convicted with, ought to attract a low-level category of sentence for the reason that he was a guardian who was chastising the deceased, the learned State Attorney argued that, the hoe handle and the excessive force used to punish the deceased was unreasonable as correctly found by the trial court. She further dismissed as baseless the argument that failure to tender the hoe handle has dented the prosecution case arguing that, the omission does not mean that the offence was not committed considering the trial court's finding on the prosecution witnesses credibility. On the omission to call the doctor who examined the deceased body, Ms. Haule referred us to page 19 of the record of appeal where the defence side answered negatively when asked by the trial court if they intend to call the doctor for cross examination. But further to that, she contended, exhibit PI was tendered and admitted during the committal proceedings and therefore, the alleged failure to call the doctor who conducted the postmortem of the deceased body, even if was true, it would not have damaged the prosecution case. Regarding the argument that the prosecution would have appealed if not satisfied with the conviction and findings by the trial court, the learned State Attorney was categorical that, their contention is not on the conviction, but, on the sentence. She further submitted that, the respondent join hands with the trial court on its observation that, the appellant used unreasonable force in disciplining the deceased despite being a care taker, as such, the sentence imposed was proper due to aggravating factors surrounding the commission of the offence. She therefore implored the Court to dismiss the appeal for lack of merit. In his rejoinder, Mr. Obwana stated that, the appellant's complaint on the sentence imposed on him is backed up by the trial court's conclusion to the effect that, he was correcting the deceased as a guardian. On that account, he argued, the sentence was required to reflect the conclusion reached as guided by the Manual. Addressing on the argument that the defence declined the proposal to call the doctor, Mr. Obwana argued that, it was the prosecution who had a duty to call the doctor so as to prove their case, particularly in these circumstances where there were two divergence propositions as regards the cause of the deceased's head injury which as per exhibit PI, caused his death. Responding to the question by the Court as to whether or not the trial court considered mitigating factors when sentencing, the learned advocate submitted that, it did, particularly on the appellant's age but according to him, the question is whether the consideration was in alignment with the Manual which he stated it was not. He concluded by reiterating his prayer to have the appeal allowed. Having heard the rival arguments by the counsel for the parties and thorough scanning of the record of appeal, the issue is whether the sentence of 15 years meted on the appellant is excessive, 11 and if the answer is in affirmative, whether the Court can interfere with it. However, before delving in determining it, we wish to state from the outset that, we shall not discuss the arguments by the parties touching the pronounced conviction, as the same is not at issue in this appeal. There is no dispute that the appellant was the guardian of the deceased child. It is also on record that, parties are at one as regards the correctness of the conviction of manslaughter entered by the trial court. Following the said conviction, the trial court sentenced the appellant to serve 15 years imprisonment. It is from the said sentence where the rival contention stemmed; the appellant arguing it to be excessive considering his status as the deceased's care taker and the death occurred in the course of admonishing the deceased child. On the other hand, the respondent contended it to be proper considering the aggravating factors she listed above. It is a settled principle that, sentencing is a discretionary function, normally in the domain of the trial court, unless a statute prescribes otherwise. Nevertheless, in exercising that function, the court is required to do so according to principles of justice, equity, law and reason. [See: Tofiki Juma vs Republic, Criminal Appeal No, 418 of 2015 [2015] 12 TZCA 135 and Moi Ikwabe Matiko @ Matiko vs Republic, Criminal Appeal No. 491 of 2020 [2020] TZCA 625 both from TANZLII. Principally, the Court is not supposed to interfere with the exercise of judicial discretion by the lower court unless it is satisfied that the decision is clearly wrong due to misdirection, or because the lower court or tribunal acted on matters which it should not have acted upon or it has failed to take into consideration matters which it should have, and in doing so, arrived at a wrong conclusion. There is a plethora of authorities to this effect including the cases of Mbogo vs Shah (1968) EA 93 and Tofiki Juma vs Republic (supra) to mention but a few. It is noteworthy that, sentencing is a balancing act between aggravating and mitigating factors as well as the need of the community in one side and that of the convict on the other. As such, the Manual comes in to balance the said factors. In other words, it serves as a guide to judicial officers when exercising their discretion in sentencing in order to have consistent and proportional sentencing process within the discretion permitted by law. In the appeal at hand, the Court is invited by the appellant to interfere with the trial court's exercise of discretion in the sentence imposed on him. Interestingly, both counsel have based their arguments 13 on the Manual which as stated, provides for an elaborative procedure on how to impose a sentence for each category of offence and factors to be considered When convicting the appellant, the trial court had this to say at Page 56 last paragraph of the record of appeal and we quote:- I totally agree with the gentleman assessor that the accused used excessive force to punish, it was unreasonable to use the hoe handle to beat a child o f five years or below and to beat him in the head. A ll in all, he did so as a parent He had an intention to admonish and not to cause death or grievous harm to the deceased person..." [emphasis added] Looking at the quoted excerpt, it was the trial court's finding that the death of the deceased occurred in the course of disciplining the deceased child, thus reduced it to manslaughter. But when sentencing, the trialcourt reasoned that, the conviction attracts a minimum of 15 years and a maximum of life imprisonment which falls under the high- level category referring to the guidelines in the Manual. With respect, we do not subscribe to the said reasoning, and we shall explain. According to the Manual, the death occurring in the course of chastisement by a guardian is categorized as low level. As for the kind of 14 punishment to be imposed, the Manual provides for a sentence ranging from conditional discharge to a jail term of 4 years, which falls under the low-level category of sentence, (page 55 of the Manual) as correctly submitted by Mr. Obwana. On that account, we are of the view that, the trial court's sentence is not in tandem with the imposed sentence as guided in the Manual with much respect to the trial Judge. In this respect, we agree with the argument of the appellant's advocate that, despite the observations in the above quote, it is the finding or conclusion that carries a day. We are aware that, the respondent's argument refuting the lowering of sentence has hinged on the opinions by the gentleman assessor, but we wish to re-state with respect that those were mere remarks and not findings upon which the trial court was required to base while exercising his discretion. Unfortunately, the trial Judge was carried away with the said remarks, as a result, he imposed a sentence which did not tally with his findings. We think, the trial Judge misdirected himself for considering the matters which he ought not to, and in so doing, he exercised his discretion wrongly. For this reason, therefore, we are of the firm view that, the Court is justified to interfere with the trial court's discretion on the sentence meted to the appellant in this appeal. 15 Basing on what we have endeavored to discuss, the appeal is allowed. Consequently, we set aside the sentence of 15 years imprisonment imposed by the trial court on the appellant. Instead, we substitute it with a sentence amounting to his automatic release, unless otherwise held for other lawful cause. DATED at MUSOMA this 22nd day of February, 2025. B. M. A. SEHEL JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Judgment delivered this 24th day of February, 2025 in the presence of the appellant in person via virtual court from Musoma Prison and Mr. Jonas Kivuyo, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original. 16