Judgement Criminal Appeal No

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MOSHI CRIMINAL APPEAL NO. 951 OF 2024 (C/F Criminal Case No. 39230 of 2023 in the District Court of Siha at Siha) DIRECTOR OF PUBLIC PROSECUTIONS................................. APPELLANT VERSUS JACKLINE HENDRY KIWELO………………………..…….…..RESPONDENT JUDGEMENT 4th November & 02nd December 2024 MONGELLA, J. The Respondent was arraigned at the District Court of Siha at Siha (henceforth, the trial Court) on one count of cruelty to children under Section 169A (1) and (2) of the Penal Code [Cap 16 RE 2022]. The particulars of the offence were to the effect that: on 04.12.2023 at Kilingi village within Siha district in Kilimanjaro region, the Respondent ill-treated one XY a six year old boy under her care by burnt him with a hot knife on his mouth, left eye and buttocks in a manner likely to injure his health. When the charge was read over to her, she admitted the allegations. This led the prosecution to read the facts of the case to her, which she also admitted. The Respondent was subsequently Page 1 of 7 convicted for the said offence and sentenced to pay TZS. 300,000/- as fine or to serve 5 years in prison. Aggrieved by the said sentence, the Appellant filed this appeal on one ground, to wit; “That, the trial magistrate erred in law and fact by providing the sentence which is inappropriate with the sentence provided under Section 169A (2) of the Penal Code [Cap 16 R.E 2022]. The Respondent did not enter appearance at all since the appeal was preferred. There were several attempts to serve her. Initial service was done through the OC-CID, but the summons was returned endorsed by the RCO that she was nowhere to be found. Eventually, service by publication in highly circulating newspapers was made in three phases. The first publication was effected on 31.05.2024 as appearing at page 17 of the Daily News. The second publication was on 27.07.2024 as appearing at page 4 of the Daily News and on Mwananchi Newspaper of 25.07.2024. The third publication was made on 24.08.2024 as appearing at page 6 of the Daily News and at page 25 of the Mwananchi Newspaper of 23.08.2024. It was after such diligent measures of service that this Court eventually made an order to proceed ex parte against her. The appeal was argued by written submissions whereby the Appellant was represented by Ms. Bertina Tarimo, learned State Attorney. Page 2 of 7 Ms. Tarimo commenced her submission by stating that the Republic partially agrees with the sentence imposed on the Respondent. However, the disagreement pertains the failure by trial Court to order compensation to the victim as required by the respective provision. She contended that the requirement to order compensation is mandatory just like the death sentence is punishment for murder as per Section 197 of the Penal Code. Emphasising, she referred the Court to page 10 of the Sentencing Guidelines, 2023 where description on what entails a discretionary or mandatory sentence is provided. She believed that if the facts read to the accused upon pleading guilty were considered, then the trial Court would have given an appropriate sentence as per the law by requiring the Respondent to pay compensation. She thus concluded by praying for the sentence to be quashed and a proper sentence to be imposed. Upon observing the Ms. Tarimo’s submission and the trial Court record, I find it apparent that the Respondent pleaded guilty to the offence of cruelty under Section 169A (1) and (2) of the Penal Code. She was subsequently convicted of the same offence and sentenced to pay a fine at the tune of TZS. 300,000/- or serve a five (5) year jail term. Ms. Tarimo is not against the said sentence, but rather the omission by the trial Court to order the Respondent to compensate the victim. As the argument emanates from the wording of Section 169 A of the Penal Code, especially under sub section (2), I find it pertinent to hereunder reproduce the provision for ease of reference: Page 3 of 7 “(2) Any person who commits the offence of cruelty to children is liable on conviction to imprisonment for a term of not less than five years and not exceeding fifteen years or to a fine not exceeding one million shillings or to both and shall be ordered to pay compensation of an amount determined by the court to the person in respect of whom the offence was committed for the injuries caused to that person.” According to the Tanzania Sentencing Guidelines, 2023, the form of wording of a statute provides an indication on whether a sentence is mandatory or discretionary. Example; the use of the words “shall be sentenced to…” means the punishment is mandatory. According to the cited provision, the punishment for cruelty to children is imprisonment of not less than 5 years and not more than fifteen years or a fine of not more than one million shillings or both. However, apart from the punishments imposed, the provision has rendered it mandatory for the person convicted of the said offence to be ordered to pay compensation. The statute specifically used the word “shall” indicating that the assailant must be ordered to compensate the victim, but of course, at the trial Court’s discretion as to the amount. In this matter, as correctly argued by Ms. Tarimo, there was no order for compensation issued by the trial Court. The omission was also not in any way justified by the Hon. trial Magistrate. This was contrary to Page 4 of 7 the requirement of the law, thus rendering the sentence incomplete. It is settled that an appellate Court can only interfere with the sentencing discretion of the trial Court in occasions it is found not to have been judiciously exercised including where it has acted upon some wrong principle or overlooked some material facts. This was well stated in Katinda Simbila @ Ng'waninana vs. Republic (Criminal Appeal 15 of 2008) [2010] TZCA 43 (16 June 2010) whereby the Court of Appeal referring to its previous decision in the case of Bernadeta Paul vs. Republic [1992] TLR 97, held: “A Court of Appeal will not ordinarily interfere with the discretion exercised by a trial judge in a matter of sentence unless it is evident that he has acted upon some wrong principal (sic) or over-looked some material factor." I find that the trial Court did overlook the mandatory requirement to award compensation as well stipulated under the relevant provision of law. I understand that Ms. Tarimo has called for this Court to rectify the error occasioned by the trial Court by awarding compensation. However, upon observing the record of the trial Court, I found no materials presented to assist this Court to award an appropriate compensation. I argue so because as this matter never proceeded to trial, the facts of the case read to the respondent which she conceded are the only pieces of information from which the details Page 5 of 7 of injury or suffering imposed on the victim could be drawn. However, the said facts did not disclose the extent of injury the victim suffered from the burns made on his face, mouth and buttocks. The prosecution also never bothered to tender the PF3 to show the extent of the injuries for the Court to be guided on the amount to award as compensation. In addition, there was also no any aggravating factors recorded and it appears that the victim did not state anything during her mitigation. In the premises, it remains even questionable on how the Hon. trial Magistrate learnt that the respondent was a first offender as she stated in her sentence. In these circumstances, I am of view that the sentence cannot be rectified by this Court. The matter can also not be remitted back to the trial Court as doing so shall amount to according the prosecution a chance to bring into the matter new facts not presented before the trial Court during trial. This is because the prosecution shall have to present facts that shall enable the trial Court to assess the amount of compensation to be awarded. In that respect, the prosecution shall be accorded a chance to rectify its mistakes, which is not permitted under the law. See, Muhonyiwa Mhonyi @ Kitunguru & Another vs. Republic (Criminal Appeal No. 357 of 2021) [2023] TZCA 17713 (4 October 2023) and Shabani Madebe vs. The Republic (Criminal Appeal No. 72 of 2002) [2005] TZCA 39 (25 August 2005). Given my observation as hereinabove, the appeal is allowed to such extent. Page 6 of 7 Dated and delivered at Moshi on this 02nd day of December, 2024. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 7 of 7