20171212 TZCA Mwanza 3

IN THE COURT OF APPEAL OF TANZANIA

AT MWANZA fCORAM: LUANDA. 3.A., MMILLA, J.A.. And MKUYE. J.A.l CRIMINAL APPEAL NO. 473 OF 2015 ITEMBE CHACHA ITEMBE @ KEDO................................................................. APPELLANT

VERSUS THE REPUBLIC........................................................................................... ...RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) fSumari. 3.^ Dated the 23rd day of July, 2013 in HC. Criminal Sessions Case No. 40 of 2013

JUDGMENT OF THE COURT 11th & i s 01 December, 2017. LUANDA. J. A.: The above named appellant was charged in the High Court of Tanzania at Mwanza with manslaughter c/s 195 of the Penal Code, Cap. 16 R.E.

2002. He was convicted on his own plea of guilty and sentenced to 15 years imprisonment. Aggrieved, the appellant has preferred this appeal against sentence. The main complaint in the appeal is that the sentence is excessive. In this appeal Mr. Deya Outa, learned advocate, represented the appellant; whereas Mr. Hemed Halid Halfani and Ms Sabina Chogogwa, learned State Attorneys appeared for the respondent/Republic. This Court has made observations in a number of cases that a higher court cannot alter a sentence imposed by the trial court on the mere ground that if it was sitting as a trial court it would have imposed a different sentence. The test has always been that there must be good grounds upon which the higher court could interfere with a sentence passed by a trial court. (See Silvanus Leonard Nguruwe vs. R., ([1981] TLR 66 and Willy Walosha vs. Rv Criminal Appeal No. 7 of 2002 (unreported)). However, a higher Court may interfere, inter alia, where the I- sentence is manifestly excessive or where the sentence is manifestly inadequate or where the sentence is based upon a wrong principle of sentencing or where the trial court overlooked a material factor or where the sentence has been based on irrelevant consideration or where the sentence is plainly illegal (See Samwel Yose @ Kijangwa vs. R., Criminal Appeal No. 208 of 2005 (unreported)). /•' In the instant case, Mr. Outa

basically submitted that the learned judge did not take into consideration the mitigating factors of the appellant. Clarifying he said at page 5 of the record of appeal it was clear that the appellant through his advocate prayed to the High Court to be lenient when assessing sentence as the appellant has stayed in custody as a remand prisoner for a period of 19 months. In addiction, the appellant was regretting to what had taken place. Mr. Outa further told the Court that the learned judge misdirected herself when she agreed with the State Attorney that this was a fit case to impose severe punishment as excessive force was applied. He suggested to the Court to impose a lesser sentence or set him free because the period he has served so far is enough. He referred us to our decision in the case of Charles Mashimba vs. R., [2005] TLR 90 at page 93 where this Court insisted on what grounds this Court can interfere with the sentence of the trial High Court. In actual fact in that case the Court reiterated the grounds set in Nguruwe case cited supra. On the other hand, Mr. Halfani strongly resisted the appeal in that the/sentence is not excessive taking into consideration the fact that the maximum sentence is life imprisonment, though he agreed that the judge did not consider the mitigating factors. He then made reference to the aggravating factor that excessive force to have been

used. In rejoinder Mr. Outa said so long as the Republic join hands that the mitigating factors were not considered, then that is a ground for the Court to interfere. As regards excessive force, Mr. Outa said there is no sufficient material to consider that point; the Court should not speculate. In the present case, in assessing sentence the learned judge stated:- "Having considered the facts o f the case which do not reveal what serious act or annoyance done by deceased to accused to attract such a serious retaliation by the accused, I agree with the learned State Attorney that this is a fit case for severe punishment to be imposed to deter the like offenders. Consequently the accused to serve a term o f fifteen (15) years imprisonment" The facts of the case run as follows:- "FACTS: Miss Hokororo, State Attorney:- This is a manslaughter case against the accused person Itembe Chacha Itembe @ Kedo. The deceased is Ghati Mtongori @ Babu. The incident took place on 22/10/2011 at Nyamwigura Village, Tarime, Mara. Accused and deceased prior lived at Nyamwigura. On the fateful day they were in a funeral ceremony at Marwa Chacha's home. At 21:oohrs accused and deceased left to their homes. On the way they quarreled and fought. In the cause o f fighting accused retrieved a knife from his waist and stabbed the deceased. Deceased fell down and shouted. One Matinde Joseph witnessed the

incident He then shouted for help and in a short while deceased died. The deceased's body was sent to hospital and examined. The postmortem report reveals that cause o f death was due Haemorraghic shock. We pray to tender it. Mr. Makowe, Advocate:- No objection. Court:- Postmortem report exhibit P.l. Sgd: A.N.M. Sumari Judge 23/07/2013" From the above extract, it is clear that the learned judge did not consider the mitigating factors of the appellant at all. By so doing the learned judge over looked a material factor in sentencing process. Besides she took into account irrelevant consideration when she agreed with the learned State Attorney simply because a sharp weapon per se was used without more as an aggravating factor. Unfortunately, the details of the incident giving rise to the fight and the surrounding circumstances thereof and subsequently the stabbing of the deceased, as correctly pointed out by the learned judge, were not disclosed or revealed. It is unfair, therefore, to throw the blame to the appellant alone. We have shown that the learned judge took irrelevant consideration and overlooked material factors in the sentencing process. On the authorities cited above, we are entitled to interfere with the sentence of (15) years imprisonment. We are unable to go along with Mr. Halfani who, resisted the appeal. We agree with Mr. Outa that the learned judge did

not consider some principles of sentencing. We have given a deep thought to the matter. Since we do not know the surrounding circumstances which resulted the stabbing of the deceased and taking into account his mitigating factors, we think the sentence of 15 years imprisonment is on the high side. We think 10 years imprisonment is appropriate. We set aside the sentence of (15) years imprisonment and in its stead we impose that of 10 years imprisonment. The sentence to start to run from the date of conviction i.e. 23/7/2013. The appeal is allowed to that extent. Order accordingly. DATED at MWANZA this 12th day of December, 2017. B. M. LUANDA

JUSTICE OF APPEAL B. M. MMILLA

JUSTICE OF APPEAL R. K. MKUYE

JUSTICE OF APPEAL I certify that this is a true copy of the original. ^ tO tJRT OF APPEAL