CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA CORAM: JUMA. CJ „ WAMBALI, J.A. And MURUKE. J.A. CRIMINAL APPEAL NO. 131 OF 2022 MAJESHI JOHN KIZENGELE...................................................APPELLANT VERSUS THE REPUBLIC.................................................................. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Mwanza) (Rumanyika, J.) dated 3rdday of November, 2021 in HC. Cr. Session No. 128 of 2020 JUDGMENT OF THE COURT 18th& 25th February, 2025 MURUKE, J.A.: Majeshi John Kizengele, the appellant, was arraigned in the High Court of Tanzania at Mwanza on two counts of murder contrary to sections 196 and 197 of the Penal Code. According to the particulars of the offence, it was alleged that on 31 October, 2019 at Luchili Village within Sengerema District in Mwanza Region, the appellant did murder Shida d/o Madoshi and Joseph s/o Mark. Appellant pleaded not guilty to the charge, but offered to plead to a lesser offence of manslaughter, the prayer that was welcomed by the prosecution. Following appellant's change of plea to the offence of manslaughter, he was convicted and sentenced to life imprisonment on 03/11/2021. Facts leading to the appellant's conviction and sentence of life imprisonment can be summarized as follows: Deceased and the appellant were neighbours living at Luchili village, Sengerema District, in Mwanza Region. On 31 October, 2019 the deceased's children when coming back from fetching water from the Well, they met with appellant's children where misunderstanding arose, and they fought each other. Deceased children on arriving home, disclosed the ordeal to their mother (the deceased), who took step to reprimand both children including that of the appellant. At that time, the appellant was returning home, from the farm with his panga on the hand, he witnessed the deceased reprimanding his children with a stick. He ran wild and attacked the deceased with a panga, who had carried her infant son on her back. The appellant inflicted several cut wounds on both the mother and the son, who died on the spot. Following the incident, the appellant surrendered himself to Sengerema Police Station. Examination of deceased body was conducted and it was revealed that cause of death was severe traumatic brain injuries. The appellant who was sentenced to life imprisonment, after conviction on his own pleas of guilt, filed memorandum of appeal dated 5 April, 2022 by himself and a supplementary memorandum of appeal dated 5th February, 2025 filed by his advocate, Mr. Kassim Selemani Gilla. On the date fixed for hearing, Ms. Revina Tibilengwa learned Principal State Attorney assisted by Mr. Adam Murusuli, learned State Attorney represented the respondent Republic, whereas Mr. Kassim Selemani Gilla, learned counsel, represented the appellant. Before hearing, Mr. Gilla informed us that, the appellant is abandoning the first memorandum of appeal, and remain with the only one ground on the second memorandum of appeal, that read as follows: "That the trial Judge erred in law and facts by sentencing the appellant to life imprisonment which was manifestly excessive punishment withought considering mitigation factors which were put forward in assessing the sentence." The appellant counsel submitted on the sole ground in brief that, following the plea of guilt, the appellant was convicted and sentenced to serve life imprisonment. The appellant complaint is that, sentence was manifestly excessive and mitigating factors were not considered, the trial Judge considered only aggravated factors and supported his view with the decisions of: (i) Nemes Mgombe vs. Republic (CriminalAppeal No. 1 of 2019) [2021] TZCA 51324 (September2021 TANZLII.) (ii) Mwanka/anga Lewe vs. Republic (CriminalAppeal No 28 o f 2013) [2013] TZCA 2157 (27 September 2013 TANZLII) With that brief submission, Mr. Gilla, implored us to reconsider the sentence and leave the appellant at liberty. Responding to Mr. Gilla submission, Ms. Tibilengwa submitted that, the Court can interfere with the sentence on plea of guilty on the following circumstances; (i) When law not followed (ii) Mitigation not considered (Hi) When time appellant spentin prison not considered. While admitting that mitigation factors were not considered, the learned Principal State Attorney insisted that there were aggravating factors that were taken into account in that, the appellant used excessive force. He used panga, a dangerous weapon to cut the deceased with who was trying to escape. The appellant cut the two deceased on different parts of their body as a result; he inflicted serious injury on them resulting to their death. The learned Principal State Attorney implored us to be guided by among others the case of Juma Mniko Mhere Vs Republic (Criminal Appeal 211 of 2014) [2015] TZCA 97 (3 December 2015) and dismiss the appeal. Having heard both sides in brief, it is worth noting that in assessing the appropriate sentence, the court shall take into account that an accused person who has pleaded guilty must ordinarily be given consideration for that plea. The trial court must explicitly state that the plea of guilty has been taken into account and failure to do so may be taken as indication that the plea was not considered at all as a mitigating factor or was given insufficient weight and the appellate court will definitely interfere. However, such sentence cannot be less than any statutory minimum sentence imposed by the Minimum Sentences Act or any other law. It is a settled principal that, an appellate court can only interfere with a sentence of a trial court if it has imposed an illegal sentence or has acted on a wrong principle, or has imposed a sentence which in the circumstances of the case is manifestly excessive or clearly inadequate. See Charles Mashimba v. Republic [2005] T.L.R. 90 and Fatuma Nurudini v. Republic (Criminal Appeal 418 of 2013) [2014] TZCA 188 (28 October 2014, TANZLII). Moreover, first offenders who plead guilty to a charge are usually sentenced leniently, unless there are aggravating circumstances. Also, the period an offender may have spent in remand prison before he is sentenced may also be taken into consideration. See Kakuru Osward @ Mulongo v. Republic (Criminal Appeal No. 433 of 2018) [2019] TZCA 420 (2 December 2019, TANZUI). In the present case, the appellant pleaded guilty to the offence of manslaughter and was sentenced to life imprisonment. The appellant had no any previous criminal record, however, the prosecution asked for severe punishment considering the degree of brutality of the killings manifested by the excessive use of force that he used a panga against a mere stick and when the deceased ran away, the appellant ran after her and tirelessly cut her and the boy to death. While mitigating the sentence, the appellant pleaded the court to consider that he readily surrendered to police, he readily confessed to the charges and that, he spent two years behind the bars. The trial court considered a number of factors before passing the sentence, including unreasonable use of force, the number of blows inflicted on the deceased mother and son and unreasonable reaction by the appellant despite the elements of land disputes and quarrels between the appellant and the deceased mother. It is on that basis; the appellant was sentenced to life imprisonment. Since, it is trite law that, in sentencing, the trial court has to balance between aggravating factors which tend toward increasing the sentence awardable and mitigating factors which tend toward exercising leniency we are of the view that the learned judge based on a wrong principle of sentencing as he concentrated on some of aggravating factors while ignoring in total the mitigation factors. It is directly clear that the trial court did not consider the following facts; one, that the appellant was the first offender, two, the appellant had been remorseful for what he did as he surrendered himself to the police, three, he had been consistent in maintaining his plea of guilty. The appellant confessed when he was interrogated at the police station as well as after the charge was read over to him, he pleaded guilty. Moreso, he admitted to all facts read over to him without any qualification. Four, the trial court ignored the fact that the appellant spent two years behind the bar waiting for his trial. From the foregoing, we are of the view that, had the trial court considered the factors above, although in the high-level category, sentence ranges from ten years to life imprisonment, he would not have imposed the maximum sentence of life imprisonment which is the high-level category sentence. According to the Tanzania Sentencing Guidelines, 2023, the trial court can impose a high-level category sentence in a case where there is use of dangerous weapon or substance, there is serious multiple wounds, the offence is motivated by a gang, the offence was intended to obstruct or interfere with the course of justice, the death caused by domestic violence, death caused by sexual sadistic conducts killing of vulnerable person(s) e.g. age, disability, gender, the killing of two or more persons, death based on race, tribe, ethnicity, religion, sexual orientation and disability of the victim and killing of public officials. See the case of Erick Samson Buberwa v. The Republic (Criminal Appeal No. 312 of 2022) [2024] TZCA 888 (13 September 2024, TANZLII). A reduction of a sentence for a plea of guilty is justifiable because: (a) It is in the public interest as it saves the court's time and expense in conducting a full trial; (b) It avoids the possibility of an accused securing an unwarranted acquittal through technical or procedural errors; (c) It is an indication of contrition which qualifies him for leniency; (d) It may reduce the impact of the crime on the victim; and (e) It saves time used by witnesses to testify before the court. In the case at hand, it is not disputed that the appellant used a dangerous weapon (panga), he inflicted serious multiple cut wounds to the deceased, the killing involved vulnerable person (woman and a breast­ feeding son) and two people were killed, therefore the appellant deserved a high-level category sentence. Given the circumstances of the case, we allow the appeal, set aside the sentence of life imprisonment, and replace it with the sentence of 15 years imprisonment. The imposed sentence should take into account the period of two years that the appellant spent in remand before being convicted. DATED at MWANZA this 24th day of February, 2025. I. H. JUMA CHIEF JUSTICE F. L. K. WAMBAU JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL The Judgment delivered this 25th day of February, 2025 in the presence of Mr. Kassim Selemani Gilla, learned Counsel for the appellant and Mr. Godfrey Sanare Odupoy, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original.