20050831 TZCA Dar es Salaam 1

, I IN _THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: RAMADHANI, J.A., LUBUVA, J.A., And MROSO, J.A.) CRIMINAL APPEAL NO. 11 OF 2004 MOHAMED RATIBU @ SAIDI ............................. APPELLANT VERSUS !THE REPUBLIC ............... ~ ............................. RESPOND.ENT (Appeal from the conviction of the High Court ofTanzania at Mtwara) · (Mandia, J.) dated 18th day of February, 2003 · in Criminal Sessions No. 5 of 2002 JUDGMENT OF THE COURT MROSO, J.A.: The appellant was convicted by the High· Court at Mtwara of manslaughter contrary to section 195 of .the Penal Code, Cap .. 16 of the Laws, on his own plea of guilty. He was sentenced to a term of twenty years (20) imprisonment. He has been aggrieved by the sentence which he considers to be excessive and, through his advocate, Mr. Rweyongeza, has appealed to this Court. At the hearing of the appeal Mr. Rweyongeza pointed out that the learned judge of the High Court appeared to have taken into I) 2 consideration only an aggravating cfrcumstance, that is that the appellant harboured "a violent streak" which needed to be curbed and, consequently, imposed the sentence of twenty years of imprisonment. The learned advocate submitted that the High Court should also have considered as relevant factors in assessing an appropriate sentence the facts that the appellant had readily pleaded guilty to the charge thus saving_ the prosecution's and ·court~s time'· and also to demonstrate remorse. Further, that the appellant had no record of previous convictions and had spent more than four years in custody. It was further submitted that even as regards the factor which the High Court considered there was no justification for it as no facts· were given to the court to show that the appellant was prone to violence.· In all those circumstances the learned advocate submitted that this appellate Court should interfere to reduce the excessive sentence ·10 such period as would not exceed ten years imprisonment. Mr. Ntwina, learned State Attorney for the respondent Republic, did not support the sentence which was imposed on the appellant by the High Court and_ agreed with the advocate for the appellant that 3 the sentence was excessive and that t~is Court should interfere. The facts of the case· can. be· put briefly as fol lows. The appellant did not like his wife and a lady called Alafa Ali to be friends. On the fateful day appellant's wife had helped to sell Alafa's cookies at a pombe shop. Angered by what his wife had done he beat up Alafa whom he met on the way and on reaching home he also beat up his wife. The deceased who was appellant's brother-in- law found Alafa crying and on being told the appellant had assaulted her he went with her to appellant's home. At the home he found his sister, the wife of the appellant, also crying and upon enquiry he was told the appellant had assaulted her. The deceased decided to take away his sister but the appellant prevented him from doing so and a fight ensued. During the fight the appellant stabbed the deceased repeatedly with a knife. The deceased died on the same day from the wounds which were inflicted on him by the appellant. We agree with the High Court that the appellant was unduly violent and the repeated stabbing of the deceased with a knife was wholly uncalled for. The question is whether the sentence was so excessive as to call for interference by this Court. l, 4 It is a principle of sentencing that an appellate court should not . interfere with a sentence of a trial court merely because had the appellate court been the trial court it would impose a different sentence. In other words an appellate court can only interfere with a sentence of a trial court if it is obvious that the trial court has imposed an illegal sentence or had acted on a wrong principle or had imposed a sentence which in the circumstances of the case was manifestly excessive or clearly inadequate. That principle has been stated in many previous decisions of this Court including a recent one, Yahaya Hassan @ Godson Hiza v. Republic, Criminal Appeal No. 16 of 2000 (unreported), and in decisions of the former Eastern Africa Court of Appeal, for example Ogalu s/ o Owoure v. Reginam [1954] 21 EACA 270. In the case under appeal although, as. mentioned earlier~ the.· appellant acted with undue violence during his fight with his brother- in-law, the trial court should also have given due consideration to the facts that he was a first offender, had readily pleaded guilty to the charge and had already spent over four years in custody. Those were legitimate mitigating circumstances and we believe that had the 5 High Court taken those factors into consideration along with the fact that the killing followed from a fight between people· who were · closely related, it would not have imposed what is plainly an excessive sentence. In the Yahaya Hassan @ Godson Hiza case to which we made reference above the appellant (in that case) killed a person with . whom · he _· had been drinking pombe. merely because the deceased in the case had refused to give the appellant a cigarette. This Court reduced a 22 year prison sentence to one of ten years imprisonment because the sentence which was imposed by the trial High Court w_as found to be manifestly excessive. The appellant in that case had been in custody for two and a half years before he was convicted and sentenced. In our case, on the facts and circumstances in which the appellant killed his brother-in-law we think that a sentence of eight years imprisonment would meet the justice of the case. We, therefore, allow the appeal by setting aside the sentence of 20 years imprisonment and in substitution thereof we impose a sentence of eight years imprisonment. It is so ordered. . ,' 6 DATED at DAR ES SALAAM this '31 st day of August, 2005. A. S. L. RAMADHANI JUSTICE OF APPEAL D.Z. LUBUVA JUSTICE OF APPEAL J. A. MROSO JUSTICE OF APPEAL I certify that this is a true copy of the original. ( S. DEPU