19861110 TZHC Mtwara

IN THE HIGH COURT OF TANZANIA AT MTWARA EIGH COURT Ct-<:::_hINAL APl'EAL N0.100 OF' 1985 0ri9::.nc1l Traffic Case No.19 of 1985 of the District court of Mtwara District At Mtwara Before JoPo Mtuiy, Esq., District Magistrate MWARJ.BU HAMISI oocoo9opoaooooooco APP ELL,11',T Versus THE REPUBLIC oooooopoeooo~c;,o 0 o"o RESPONDENT J U DG ME N T RUBAMA, Jo Mwar2bu Hamisi was charged with and convicted of permitting a motor vehicle to be ~riven on the public road with mechanica1 defects contrary to section 39(6)(a) ·,. and 5 of the Road Traffic Act, 1973. He was sentenced to pay 'shs.6,000/== or suffer 9 months imprisonment in def 9ult. Mr. Kumwembe learned defence counsel argw~d the appeal maintaining: Firstly that the sentence·imposed on the appel~ant wa~ excessive when ~ompared to the seritence that had been imposed on Mohamed Chikota, a co~accused of the appellant undone who had been permitted to qrive the said defective motor vehicle. The eo-aceused had been fined shso600/== or suffer 3 months imprisonment in default. secondly Hro .Kumwembe submitted that this excessive fine had been imposed on the appellant notwithstanding the fact that he was a first offender and had ~leaded guilty and thirdly that the appellant had a good mitigating fact9r. It hns been Well established that the primary duty of maintaining a motor vehicle in good mechanical repair lies with the owner of the motor vehicle and not a driver. 'rfle sentc~nces to be imposed on the driver of the defective .•••• /2 · motor vc;1icle and the owner of that def!oCtive motor vehicle that had permitted it to be driven oh c1 public road· notwithstanding its condition have therefore to. reflect this pOsitiono It is tiue that the appellant had pleaded' guilty bu£ going by ,the record the plea of guilty had not been readily forthcoming. The appellant had at first pleaded not guilty and ·the case had been adjourned for some weeks befor2 the accused had changed his plea of not guilty to guilty and this was at a time when his trial was about to commcnceo This delay had led to the taking of his case by a magistrate other th~n the one wtrn had dealt with the case of his·co-accused. While uniformity in.sentencing is something that this court would like to see uchieved this court acc~pts the natural tendency that different magistrates place different emphasis even on ~n identical case. To expect otherwise is unrealistics; magistrates not are human beings and/robots. AS stated above the cases facing.the appellant and his co-accused were not identical, further more they were handled at different· times. This apart, the imposed sentence .was not excessive. True the defects were few but nonetheless serious. The O/S front tyre was worn out to smoothness and foot brakes needed adjustment. These two defects were serious ones and could ~asily have led to a.serious accident. As Mre Sengwaji iearncd_Senior state Attorney for the Republic had submitted the sentence provided under section 39(6)(a) and 5 of the Road 'I'raff.ic Act had not been the maximum i.e. phs.20,000/== or 3 years imprisonment in default and that the trial magistrate in sentencing the appellant had p~operly tlrawn his atte)'ltion to the increasing number of accid<mts being caused by usage of defective motor,vehicles on ~hf:! public roads, a factor that be was entitled to draw upon. The trial magistrate had acted within his powers. I find the sentence justified~ The appeal is dismissedo ~ ·- y ~\ ;u~ma L~L~~ Judge. 10.11.86 .• ./ . ,,_ .. ':·· \.r:~f -~~<'.}i: ;, I .,·, \ \_.f /: . ,· ·', :<