CRIMINAL APPEAL NO

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY)

AT DAR ES SALAAM CRIMINAL APPEAL NO. 1522 OF 2024 (Arising from the District Court of Kinondoni in Criminal Appeal No. 17 of 2023) NELCIA SHAMS …………………………………………………………APPELLANT

VERSUS SHARON EMMANUEL ………………………………..……………..RESPONDENT

JUDGMENT 25th June & 09th August, 2024 \ BWEGOGE, J. This is the second appeal preferred by the appellant herein. The same is seeking to defeat the decision of the District of Kinondoni which upheld the judgment and sentence entered by the Primary Court of Kimara. At the first instance, the appellant herein instituted criminal proceedings against the respondent in the Primary Court of Kimara on the charge of assault causing actual bodily harm c/s 241 of the Penal Code [Cap. 16 R.E. 2022]. The trial court found the respondent guilty as charged and sentenced the same to conditional discharge for three months. The appellant was not amused. 1 The facts of this case gleaned from the record of the lower courts are as follows: The parties herein resided in the same compound but in separate houses. On 21st January, 2023 allegedly, the respondent herein caused damage to the door of the appellant’s residence. Consequently, on the fateful day of 22nd January, 2023 the appellant could not unlock the door from inside. The respondent was demanded to mend the door. She agreed to pay for the expenses of mending the door. Hence, the carpenter was called and claimed for TZS 30, 000/= for the replacement of the door lock. The respondent refused to pay on the ground that she had no such amount of money to meet the mending costs. Dispute ensued between the duo and they exchanged sharp words;

eventually, the disagreement culminated in an actual fight. Consequently, the appellant was injured. Thereafter, the appellant commenced criminal proceedings against the respondent on the charge of assault. After a full trial, the trial court found that the respondent caused bodily injury to the appellant and duly convicted her. Taking into consideration the circumstances of the case, the age of the respondent and her conduct after the commission of the offence, the trial court imposed a non- custodial sentence. 2 The appellant felt that the court of first instance was exceedingly merciful. She appealed to the District Court of Kinondoni seeking enhancement of the sentence imposed by the trial court. Likewise, the appellant sought an order for compensation for the injury sustained. The 1st appellate court having scrutinized the record of the trial court found no cogent ground to vary the sentence entered by the trial court. Moreso, the 1st appellant court found that the documentary evidence (exhibit C1) entails that the appellant was paid TZS 150, 000/= as compensation and amicably settled her dispute with the respondent. Hence, dismissed the prayer for compensation. The appellant, undaunted; preferred the 2nd appeal herein on four grounds of appeal, as hereunder mentioned: 1. That the learned trial magistrate erred in law and fact in sentencing the respondent to conditional discharge for three months contrary to the provision of section 241 of the Penal Code [Cap. 16 R.E. 2022].

2. That the learned trial magistrate erred in law and fact by imposing a minimum sentence against the respondent.

3. That the learned trial magistrate erred in law and fact for failure to enter an order for compensation in favour of the appellant for permanent injury sustained.

4. That the learned magistrate erred in law for not considering the evidence produced by the appellant. 3 During the hearing of this appeal, both parties in this case fended for themselves. The appeal was heard orally. In respect of the 1st ground of appeal, the appellant submitted that the respondent having been charged with an offence under section 241 of the Penal Code, and having been convicted, was liable for imprisonment for five years. That contrary to the evidence furnished pertaining to the commission of the offence, the trial court imposed a lenient sentence of conditional discharge with an order that the respondent should not commit any crime within the period of three months on the mere ground that the respondent is a student. The appellant prayed this court to vary/enhance the sentence imposed against the respondent. Pertaining to the 2nd ground, the appellant argued that the trial court ought to have regarded the law, as promulgated by the parliament, in imposing an appropriate sentence. That the sentence imposed doesn’t redress the harm perpetrated against her. The appellant reiterated the prayer for the enhancement of the sentence imposed to set an example to other offenders who indulge in the commission of like offences. Regarding the 3rd ground of appeal, the appellant argued that the trial magistrate erred in law and fact for not condemning the respondent

to 4 pay compensation for the permanent injury she sustained. That the finding that she had agreed with the respondent for payment of compensation to the tune of TZS 150,000/= was erroneous. The appellant insisted that no evidence was furnished to prove that the dispute between the parties herein was amicably mediated. Otherwise, the appellant argued that the agreement she entered with the respondent which was admitted in evidence by the trial court sought to prove that the respondent admitted commission of the alleged crime and intended to pay her the compensation. Therefore, the appellant opined that she has a right to be compensated for the wrongful act committed according to the law and expenses incurred in prosecuting the respondent herein. Lastly, in substantiating the 4th ground, the appellant submitted that the trial court didn’t consider the evidence brought to its attention. That she submitted documentary evidence comprising photographs showing the injury she sustained, medical prescriptions, and a report highlighting the trauma she suffered which were not admitted by the trial court though there was no objection from the defence. That the said evidence would have been material to the case herein. 5 Responding to the 1st and 2nd grounds of appeal, the respondent contended that the lower court entered a just decision. That the trial court has the power to enter a

sentence which doesn’t exceed one year. And it was the very reason that the 1st appellate court didn’t vary the sentence. The respondent refuted the allegation that she stabbed the appellant claiming that the respondent injured herself accidentally. Replying to the 3rd ground, of appeal, the respondent contended that the lower courts were right for not entering an order for compensation as no evidence was furnished for the alleged permanent injury. That the evidence on record ascertains that she incurred the costs for the appellant’s medical care including x-ray scanning, among others, which were deliberately and unreasonably demanded by the appellant to her financial detriment. Further, the respondent submitted that the evidence on record is clear in that she paid the agreed compensation. That the back of the documentary evidence (exhibit C 1) bears the record which the appellant has deleted before she tendered the same as an exhibit to conceal the fact that she received the amount of compensation agreed upon. And the Ten-Cell leader testified in court on how the compensation was paid and handed to the appellant. 6 In tandem with the above, the respondent submitted that she paid compensation and incurred costs for the appellant’s medical care not because she was a wrongdoer, but for the sake of their friendship and humanity. In contesting the 4th ground of appeal, the

respondent reiterated that both lower courts had considered evidence on record in reaching their conclusions. That the fact that she was convicted, speaks volumes in that the complainant case was duly considered. She prayed this court to dismiss this appeal for being devoid of merit. In rejoinder, the appellant reiterated her submission in chief. It is noteworthy that the appellant argued that she could not have been treated in the hospital if she had no PF3. And the PF3 in question indicated the extent of injuries she sustained. But the respondent concealed the same. That the attempt she made to obtain an alternative PF.3 proved futile and other documentary evidence was not received. Hence, she was left with no other means but to show the trial court the scars and injuries on her hand for her case to succeed. This is all about the submissions made by the parties herein. 7 I prefer to commence with the charge on the 4th ground in that the trial magistrate failed to consider the evidence adduced by the appellant. In canvassing this ground of appeal, I find it pertinent to revisit the evidence adduced in the court of first instance by both parties herein in extenso. The evidence on records is thus: The appellant herein who testified as PW1 in the trial court deponed that the respondent herein having damaged her door lock, bound herself to meet the repair costs. However, when the

carpenter was called, the respondent refused to pay for the service charge to the tune of TZS 30,000/. Hence, they exchanged inflammatory words. The appellant alleged that the respondent was determined to assault her. Hence, she fetched the knife and threatened to harm the respondent if she attacked her. However, the respondent pursued her into her residence and strangled her until she fainted. When the appellant regained consciousness, she found herself with the injuries on her hand, severe headache and general body pain. Likewise, the appellant enlightened the trial court that she attended hospital for medical care whereas her injured hand was stitched. In tandem with the above, the appellant conceded that the respondent shouldered the expenses of her medical treatment. 8 The evidence adduced by the appellant (PW1) was supported by her mother namely, Aziza Masoud (PW2) who conceded that she didn’t witness the alleged fight. But she reckoned that the respondent and her relatives consulted her and begged to settle the dispute amicably whereas they offered to pay TZS. 150,000/= as compensation, which she refused. The respective agreement executed by the parties herein for payment of compensation was tendered by the appellant and admitted in evidence as exhibit C1. Contrariwise, the respondent (DW1) made a defence to the effect that she was likewise injured by the appellant. She

conceded to have differed with the appellant after she was accused of causing damage to the appellant’s door. The respondent alleged that the appellant had grabbed the knife threatening to stab her and she was constrained to confront the appellant in self-defence whereas during the confrontation, the appellant dragged the respondent into her residence/room before she fell and injured herself. Further, the respondent deponed that she was alleged to have injured the appellant; hence, she opted to incur medical expenses for the appellant including taking care of her after receiving the medical care. In the same vein, the respondent enlightened the trial court that the appellant claimed 9 compensation to the tune of TZS 150,000/= which she willingly paid. However, the money was returned when she refused to comply with the demand made by the appellant and her mother (PW2) requiring her to admit in writing that she deliberately caused harm to the appellant. The defence case was supported by the testimony of one Nancy Aman (DW2) and the Ten-Cell leader namely, Said Japhary Luumba (DW3). In substance, DW2 reiterated that it was the appellant herein who armed herself with knife intending to harm the respondent but fell down and harmed herself. And, DW3 enlightened the trial court that he presided the dispute resolution between the parties herein. That the appellant and her mother

claimed TZS 150,000/= in addition to the medical expenses incurred by the respondent which the respondent paid and the agreement to that effect was executed. Finally, the trial court found the respondent guilty as charged on the grounds that; one, the respondent herein unnecessarily pursued the respondent into her room in which the appellant alleged that she was strangled and injured by the respondent; two, the respondent willingly shouldered the burden to incur medical expenses and willingly paid the demanded compensation which signified her admission for her wrongful act. 10 Based on the factual matrix revisited above, I have the following observations: First, it is an undisputed fact that on the fateful day, the parties herein differed and exchanged inflammatory language. Secondly, prior to the alleged assault, the appellant conceded the fact that she armed herself with the knife in what she explained as self-defence. Conversely, the respondent alleged that the appellant intended to harm her with knife; hence, felt constrained to confront her. Thirdly, the appellant sustained injury in her residence (room) into which allegedly the respondent intruded and assaulted her. Fourthly, the respondent shouldered the medical expenses for the treatment of the appellant and later paid her the compensation (TZS 150,000/=) which was returned after she refused to incriminate herself in

writing, the condition imposed for reaching an amicable settlement of the dispute. Fifthly, it is undisputed fact that the appellant conceded that she didn’t report the incident to the police station; hence, she didn’t have the PF3 when she received medical services. It suffices to point out that the trial court considered the evidence adduced by both parties and validly found the respondent guilty of assault causing actual bodily harm. I subscribe to the findings of the trial court. It is 11 apparent that the appellant having armed herself with the knife, the respondent had an option to avoid her. To the contrary, the respondent opted to confront the appellant. The fact that the appellant had the audacity to confront the appellant who was armed and the alleged brawling proceeded into the appellant’s residence, in which the appellant blames the respondent for injuries sustained, the respondent cannot exonerate herself from criminal liability, irrespective of the appellant’s conduct. That said, I find the 4th ground of appeal without merit. At this juncture, I would prefer to discuss the 1st and 2nd grounds of appeal together. In substance, the charge thereof is to the effect that the trial court imposed an unreasonably lenient sentence on the respondent. The record of this case entails that, in considering the applicable sentence, the court considered the following factors:

One, the respondent being a young woman of 20 years of age and still a student; two, circumstances of the commission of the offence, and the extent of the injury suffered by the appellant; and three, the conducts of the respondent after the commission of the offence. Based on the above factors, the trial court found that the conditional discharge of three months would meet the scales of justice. I find no cogent ground to fault the sentence imposed by the trial court for the reasons hereunder stated. 12 Primarily, it is the law of this land that sentencing is considered the primary prerogative of trial courts. The trial court has wide discretion to determine the type and severity of a sentence based on the circumstances of the relevant case. This court in determining the appeal herein, has a limited role in sentencing [DPP vs. Shida Manyama@ Selemani Mabuba (Criminal Appeal 285 of 2012) [2015] TZCA 168]. Hence, this court cannot interfere with the discretion exercised by a trial magistrate in imposing the impugned sentence merely on the ground that if it were sitting as a trial court, it would have imposed a different sentence. The circumstances under which the appellate court may interfere with a sentence imposed by the lower court are as hereunder mentioned: 1. Where the trial court has acted upon the wrong principle.

2. Where the sentence is manifestly excessive or where the sentence is manifestly inadequate.

3. Where a trial court overlooked a material factor.

4. Where the sentence has been based on irrelevant considerations such as gender, race or religion of the offender; and 5. Where the sentence is plainly illegal. See in this respect the cases; Mbogo and Another vs. Shah (1968) EA 93; Credo Siwale vs. The Republic (Criminal Appeal 417 of 2013) 13 [2014] TZCA 184; Swalehe Ndungaji Lungu vs. Republic [2005] T.L.R. 94: Mashinika Mswanzali @Shine vs. Republic (Criminal Appeal No. 416 of 2017) [2021] TZCA 282; Katinda Simbila and Tofiki Juma vs. Republic, Criminal Appeal No. 418 of 2005, CA (unreported); and Njile Samwel @ John vs. Republic (Criminal Appeal 31 of 2018) [2021] TZCA 391 among others. In the same vein, I find it pertinent to point out that in assessing the appropriate sentence to be imposed against the offender who is convicted for the commission of an offence, the trial court should take into consideration factors, among others, hereunder mentioned: 1. The nature of the offence the accused has been convicted of and the kind and degree of damage or injury caused to or inflicted on the victim.

2. The desirability of keeping the first offenders and young persons out of prison. It is apprehended that a custodial sentence should be reserved for serious crimes to avoid the danger of the eventual emergence of embittered and corrupted young persons.

3. Any compensation the accused has made or has been ordered to make to his victim.

4. Whether any restitution has taken place or will take place. 14 5. The permanent physical and/or mental suffering the victim of the offence will, or is likely to suffer as a result of the commission of the offence.

6. The degree of moral blameworthiness and degree of mitigating features. See in this respect the case of Xavier Sequeira vs. Republic, Criminal Revision Case No. 04 of 1993, High Court of Tanzania (Dsm) published in the book titled: Supremacy of Law; Selected Judgments, Speeches and Writings; E & D Vision by Justice B.A. Samatta on pages 294-298. See also the Apex Court decisions in the cases: Uhuru Jacob Ichode vs. Republic (Criminal Appeal No. 462 of 2016) [2019] TZCA 465; Yeremiah s/o @ Jonas Tehani vs Republic (Criminal Appeal 100 of 2017) [2020] TZCA 65; Njile Samwel @ John vs. Republic (Criminal Appeal 31 of 2018) [2021] TZCA 391 and Willy Walosha vs. Republic, Criminal Appeal No. 07 of 2002, CA (unreported) in this respect. Reverting to the case at hand, it is apparent on the record that it is the appellant herein who had grabbed the knife threatening to employ it against the respondent herein during the exchange of sharp words between them. It is the same knife the appellant alleged that the 15 respondent employed in assaulting her. As I said earlier, contrary to the circumstances of the commission of offence, the respondent was found guilty of assault for the grounds that; one, she had the opportunity to avoid the appellant but opted to confront the same; and two, the alleged injury was allegedly perpetrated inside the residence of the appellant whereas the respondent

failed to provide plausible explanation on how the alleged fight proceeded therein. I subscribed to the findings of the trial court. In the same vein, as I highlighted earlier, the appellant conceded that she had no PF3 for proof of injury sustained for the reason that, at the first instance, she didn’t report to the police station before she received medical care. Contrary to the complaint made by the appellant in this court, the record of the trial court entails that no evidence was tendered for proof of the extent of injury suffered by the same. And I find no record made by the trial court pertaining to the assessment of the injury suffered by the appellant. In tandem with the above, I subscribe to the finding of the 1st appellate court that though the penal law provides for five years imprisonment, the primary court’s sentencing powers is limited to 12 months imprisonment in terms of section 2(1) (a) of the Primary Court Criminal Procedure Code 16 [Cap.11 R. E. 2019]. And the impugned sentence meted against the respondent is one of the sentences the trial court is enjoined with power to impose. Moreso, the trial court rightly considered the conduct of the respondent after the commission of the alleged assault, apart from the circumstances of the commission of the offence. It is not disputed that the appellant shouldered the expenses of the appellant’s medical services

rendered by the hospital as well as the duty of taking care of the appellant after she received treatment. Likewise, willingly, the respondent covenanted with the appellant to pay compensation for her wrongdoing. Hence, as I said earlier, having considered the circumstances of this case generally, I would not fault the discretion of the trial court in imposing the impugned sentence against the respondent which was upheld by the 1st appellate court. The 1st and 2nd grounds of appeal fail. Lastly, I proceed to discuss the 3rd ground of appeal. It is charged that the learned trial magistrate erred in law and fact for failure to enter an order for compensation in favour of the appellant for permanent injury sustained. Unarguably, compensation may be awarded to a person who has suffered material loss or personal injury in consequence of the offence committed and that substantial compensation is, in the opinion of the 17 court, recoverable by that person by way of a civil suit in terms of the provision of section 348 of the Criminal Procedure Act [Cap. 20 R.E. 2022]. Likewise, the compensation may be awarded either in addition to or in substitution for any other punishment in terms of the provision of section 31 of the Penal Code. The record hereto entails that in denying an order for compensation, the first appellate court found that there is evidence in that the parties

herein entered agreement in which the respondent bound herself to pay compensation to the tune of TZS 150, 000/= of which she fulfilled. Hence, the appellant couldn’t be heard claiming compensation. I have scrutinized the written agreement executed by the parties herein which was admitted in evidence by the trial court and marked as exhibit C1. In the respective agreement, the respondent expressly promised to pay the appellant compensation to the tune of TZS 150,000/= within clear ten days from 28/01/2023 to 06/02/2023. It was likewise expressly agreed that the respondent would foot the expenses of medical treatment of the appellant and provide domestic assistance to the same in her residence during the period she would be required to rest/ nurse her injury. And it was expressly covenanted by the parties herein in that the respondent would not be further liable to the appellant after she had 18 discharged the agreed responsibilities. It is apparent on the face of the document that the agreement was signed by both parties herein with their witnesses. Further, it is in the testimony of one Said Japhari Luumba (DW2) that the appellant and her mother (PW2) brought a complaint to his attention in that the respondent herein had discharged her covenanted obligation to foot the medical expenses for the appellant but failed to discharge her contractual obligation to pay for the agreed

compensation. And PW2 had called the respondent and informed the charge made by the appellant herein whereas the respondent readily paid the claimed amount of TZS 150,000/. Indeed, the respondent (DW1) deponed in the trial court that she paid the appellant the claimed compensation. However, later on, the appellant and her mother compelled her to execute a written document confessing that she had deliberately caused harm to the appellant. Apprehending the consequences of such self-incrimination, the respondent refrained from making such a statement. Consequently, the appellant’s mother had returned the compensation paid by the respondent. Apart from the above, I reiterate the fact that the appellant conceded in the trial court that she didn’t have the PF3 when she received medical 19 services. No evidence on record tendered by the appellant for proof of her injury sustained during the alleged assault. Hence, the extent of injury suffered by the appellant cannot be ascertained. Likewise, the record of the lower court doesn’t shed light pertaining to the extent of the injury suffered by the appellant. Therefore, even if I would have been convinced to impose an order for payment of compensation, I am not in position to assess the injury suffered by the appellant and the commensurate compensation she is entitled. I am of the considered view that if the appellant feels she is

entitled to compensation, civil proceedings would be convenient for her claim. The 3rd ground of appeal fails as well. Given the foregoing, I find the appeal herein bereft of merit. I would dismiss the appeal in its entirety. The sentence entered by the trial court against the respondent and upheld by the first appellate court prevails. So ordered. DATED at DAR ES SALAAM this 09th August, 2024 O. F. BWEGOGE

JUDGE 20