PC

THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT ARUSHA PC CRIMINAL APPEAL NO. 000000267 OF 2024 REUBEN LONGOTOT1 & EMANUEL LEGOLANI.................................. COMPLAINANT / APPELLANT

I APPLICANT

VERSUS STEPHANO MELAU................................... RESPONDENT / DEFENDANT

JUDGMENT A. Z. BADE, J 03/06/2024 & 13/09/2024 BADE, J. The Appellants herein were arraigned at the Arusha Urban Primary Court and charged with one count of assault occasioning actual bodily harm contrary to section 241 of the Penal Code. (Cap 16 R.E 2022). After a full hearing, the trial court found the Appellants guilty and sentenced them with community service for a period of six months and ordered payment of TZ. 100,000 from each Appellant to be paid to the Respondent as compensation. The Respondent herein who was the complainant before the trial court was not satisfied with the outcome especially the sentence which the Appellants were meted, hence lodged his Appeal to the District Court on two grounds to the effect that: 1. The trial court erred in law and in fact for failure to analyze and scrutinize evidence adduced before the court hence reached into erroneous decision, and 2. The trial court erred in law and fact by rendering the sentence unproportioned to the grievousness of the offence as provided for by the law. After hearing of the submission by both sides, the District Court overturned the sentence passed by the trial court by setting aside the sentence of community service and substituting it with a custodial sentence of five years imprisonment. The Appellants were aggrieved by the altering and enhancing of the sentence by the District Court, hence the instant Appeal which was based on three grounds: 1. That the District Court erred in law and in fact by failure to consider the requirement of the law on the District Court powers on exercise oi its appellate jurisdiction by excessing the primary court’s jurisdiction on sentencing.

2. That, the District Court erred in law and fact by failure to comply with the requirement of the law on hearing of the appeal from the Primary Court.

3. I hat, the District Court erred in law and fact by failure to evaluate final submissions made by the appellants during the hearing of the appeal. This appeal was disposed of orally before the court. The Appellants were represented by Mr. Eliakim Sikawa, learned advocate, while Respondent enjoyed the service of Ms. Victoria Mleo, also a learned advocate. Arguing regarding the 1st ground of appeal, Mr. Sikawa explained that the District Court had no power to enhance the sentence as the trial court could only pass a sentence of up to 12 months only. By extension, since the District Court was only hearing an appeal from the Primary Court, it could not exceed the sentence beyond what was allowed of the trial court. To support his position, he cited para 2(1) of the third schedule of the Magistrate Courts Act, Cap 11 R.E 2019. In further contention, Mr. Sikawa argued that before hearing the appeal, the District Court should have implored the file from the trial court, so that it could avail itself with proceedings to check if there was an irregularity. However the District Court did not obtain the proceedings or read the records from the trial court, and that is why its decision was based on irregularity, making such a decision without a legal basis. In opposition to the appeal, concerning the 1st ground of Appeal Ms. Mleo submitted that paragraph 21 (1) (b) of the Magistrates

Courts Act gives powers to the District Court not to exceed the sentence that has been issued by the Primary Court, unless the accused or convicted person has been given an opportunity to be heard and in this case, the Appellants were heard and the Respondent had had the opportunity to be heard as well since both parties filed their written submissions. Her contention is that the Respondent then had their ground of appeal complaining the sentence was too low, and so it was proper for the court to revise the said sentence. To support her position, she cited the case of Basil Ramadhan vs R, Criminal Appeal No. 336 of 2015. With regard to the 2nd and 3rd grounds of appeal, Ms. Mleo argues that the accusations are baseless because the advocate has not brought in any evidence to substantiate his claim. On ground 3 in particular, she contends that the trial magistrate had the advantage of submissions by both sides before making his decision. She referred to this court at page 1 of the judgment. She insisted that the said sentence was proper and just. Rejoining, Mr. Sikawa insisted that he had cooperated with the District Court and the trial court as they were tracing the file since the file had been misplaccd/could not be found, and they found out that the file never left the trial court up to the time the appellate court rendered its decision. Having heard the Submission by both

sides, the issues calling for determination here are firstly, whether the District Court had justification to alter the sentence imposed by the trial court, and secondly, whether the procedure for hearing an appeal from the Primary Court to the District Court was followed. It is trite law that the powers of an appeal court in dealing with sentences imposed by the courts below are restricted. In Fatuma Nurdin vs Republic, Criminal Appeal No. 418 of 2013, the Court of Appeal had stated while citing the case of Patrie Matabaro @ Siima and Another vs Republic, Criminal Appeal No. 333 of 2007 (unreported) that: It is settled law that an appellate Court has a limited role in sentencing. The governing principles that must he taken into consideration are as follows: 1. Sentencing is a function that the legislature entrusts to the trial judge (or magistrate as the case may be); 2. The sentencing decision is a decision made in the exercise of discretion; 3. An appeal court may only intervene where the exercise oj the sentencing discretion is vitiated by error, such that there has been no lawful exercise of that discretion; 4. Then an appeal court may decide for itself what the sentence should have been. ” In interfering with the sentence imposed by the trial court, the District Court neither referred to the above- mentioned principles nor did he suggest that the trial court had wrongly

exercised its discretion. It was clear from his judgment that the appellate magistrate considered a custodial sentence to be the only punishment that would be commensurate with the gravity of the offence. With due respect, that is not necessarily correct in my view because the trial court before passing the sentence, as is clear from the record, put into consideration the mitigation factors, the environment in which the offence was committed, and the fact that the Appellant at the District Court did not sustain permanent injuries in his body. In any case, I wish to state that it has been propounded in law that a sentence should serve one of the following purposes namely. 1. to deter the future behavior of the offender and other people by demonstrating to them the adverse consequences of their offending. 2. to prevent the offender in order to render them incapable of re-offending by measures such as keeping them in custody, 3. to reform or rehabilitate - addressing the underlying causes of criminal conduct by changing an offender’s personality, attitudes, habits, beliefs, outlooks or skills to stop them from re-offending, 4. to retribute - ensuring that the punishment is proportionate to the gravity of the offence, 5. to restore - concerned with repairing the harm caused by the criminal conduct and recognizing the harm done to the victim of the crime and the community. It is

relevant in my view to note that as Appellants are first-time offenders and the trial court took all these relevant factors into consideration, the District Court should not have interfered and alter the sentence just because it could have imposed another and heavier sentence. In the case of the Director of Public Prosecutions vs Focus Patrie Munishi, Criminal Appeal No. 672 of 2020, citing the case of Mohamed Ratibu @ Said vs Republic, Criminal Appeal No. 11 of 2004 (unreported), the Court when cautioning against the intervening in the sentence on the ground that the superior court would have imposed a heavier sentence it stated that: 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 have imposed 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 acted on a wrong principle or had imposed a sentence which in the circumstances of the case was manifestly excessive or clearly inadequate. ” In altering the sentence from community service to the custodial sentence of five years, the District Court did not assign any reason for such alteration, on whether the sentence of community service was illegal, or whether the trial court

acted on wrong principles in imposing the said sentence. It is my finding and view that the District Court had no basis lor interfering with the trial court’s exercise of its discretion on sentencing because there is no argument or reasoning as the case may be, that it did not exercise it judiciously. The argument by the Respondent’s counsel that the act of the District Court to alter the sentence was justifiable as both parties were heard is without merits. As this issue is enough to dispose of this appeal, I see no need to discuss the remaining issue as it will serve no purpose. Having said so, I hereby allow this appeal. I thus proceed to quash and set aside the enhanced sentence by the District Court and restored the one on community service which was handed down by the trial court. However, according to the record, the sentence of the trial court was issued on 14/07/2023, and the sentence was altered through the judgment of the District Court which was delivered on 24/11/2023, this means that the Appellants had already served four months of the period of their sentence which was six months. From the time the sentence was changed to a custodial sentence to the date of this judgment, the Appellants would have spent almost one year in prison if not for the bail granted to them, having served three-quarters of their sentence. Taking all this into consideration, the Appellants are entitled to their freedom unless they are charged and held for some other lawful cause. It is so ordered. DATED at ARUSHA this 13th day of September 2024 Dated at ARUSHA ZONE this 13th of September 2024. A. Z. BADE, J

JUDGE OF THE HIGH COURT