19900802 TZCA Arusha1

. IN TH:C COURT OF ,0,PPEAL OF TA11\JZANIA AT ARUSHA ( COR.A.IvJ:: KISANGA 2 J .A. 2. R?V1ADHANI, J .A. 2 And MNZAVAS, J .A.) CRIMII'l!\L APPEAL NO. 72 OF 1990 BET1-IEEN COSMAS SALAK IO TEMBA • . . . . • • · . APPELLANT AND TH.2 R8PUBLIC . . . • . . . . . • RSSPONDENT (Appeal from the sentence of the High Court of Tanzania at Arusha) (Mwaki_"t?_ete ~ ) dated the 13th day of April, 1989 in Criminal Sessions Case Nao 98 of 1987 JUDGMENT OF THE COURT r The appellant, COSMAS S.\LAKIO TEI\/J:BA-y pleaded guilty to t·,1e charge of manslaughter, was consequently convj_cted under f Sect. 195 of the Penal Code and was sentenced to imprisonment for a term of 15 years. He now appeals against that sentence. A memorandum of appeal contaiDing three grounds of appeal was filed and the appellanty appearing in persony did not want to add anything to it at the hearing of the appeal. . The first ground was th9.t the sentence was manifestly excessive. In ground two the Court was moved to haye mercy because of the severity of the sentence. Lastly, it was submitted that the death was caused in the proc~ss of normal chastisement of a child by a parent. • •• I 2 I ; 2 Resistirlg the appeal was ivir. Kimomogoro, learned State Attorney, who refuted the last ground of appeal and contended _that the appellant administered beatings on the deceased without any a:tJparent justification. He went on to submit that the sentenrie is not in any way manifestly excessive in view of the facts of the case. He pointed out the non- existence of any of the principles enunciated by this Court as to instances in which an appellate Court could interfere with a sentence. He asked the Court to dismiss the appeal~· The facts narrated by the prosecution, and which the appellant admitted to be correct, show that he was the paramour of one, DINA, the deceased's mother. On the fateful evening the ap::_Jellant found no one at DIN.A's home. After a while the deceased and other children came back from fetching water and thereupon the appellant picked a stick and started beating him. The other children raised an alarm and, as people came, the appellant ran away leaving the deceased fatally helpless on the ground. , From the above facts we agree with l\f/.AKIB;~TE, J. that the appellant who ;isavagedly killed the child ••• deserves a very severe sentence:,. At the trial the appellant claimed to have been intoxicated. The learned trial judge, correctly, in our vi,:?w s rejected that as an afterthought. We also agree with Mr. Kimomogoro that had the appellant been thus inebriated,--.. _ as to so mercilessly attack the deceased, he would not have fled away the way he did. C O t /3 ... 3 The principles upon which a sentence can be altered on . appeal riave been stated in ~.e.s... Yoram v, R+ (1951) 18 E.A.C.A ']47 and by this Court in §.ilvapu~J..e'1..11,ard N_guruwe Vo R~ £19817 T.L.R. 66. In the present case ~e cannot say that the learned trial judge used a wrong principle in sentencing or that q4 . , ignored to consider a relevant imp9rtant matter or circumstance or that the sentence was manifestly excessive as to amount to a miscarriage of justice. Apart from the above the a~p~llant did not show m~rcy · \. to a youlh of the tender ag~ of ten years an4 we ~ee nc reason for ·mercy. The appeal is dismissed in its entirety. D.:).TED at AR'JSHA this 2nd day of August, 1990. R.H.~ KISANGA JUSTICB OF APPBAL h. S. L. RAMADHANI JUSTICE OF APPEAL N .S. MNZAV/1.S JUSTICE OF APPEAL I certify that this is a true copy of the original. f~.t?~fl- (s.s. K/,IJAGE) DEPUTY REGISTRAR