SAMWEL MAILA V R

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA CRIMINAL APPEAL NO. 22315 OF 2024 (Arising from Traffic Case No. 000021328/2024 from the District Court of Nyamagana) SAMWEL LUCAS MAILA..............................................................APPELLANT VERSUS REPUBLIC................................................................................... RESPONDENT JUDGMENT 30/9/2024 & 21/10/2024 ROBERT, J:- This is an appeal preferred by the appellant, Samwel Lucas Maila, against the decision of the District Court of Nyamagana in Traffic Case No. 000021328 of 2024. The appellant was charged with three counts: (1) Causing Death Through Careless Driving of a Motorcycle on a Public Road, contrary to section 41 and 63(2)(b) of the Road Traffic Act, Cap. 168 R.E. 2002; (2) Riding a Motorcycle on a Public Road without a Valid Driving License, contrary to section 19(1) and 113(1) of the Road Traffic Act, Cap. 168 R.E. 2002; and (3) Riding a Motorcycle on a Public Road without Valid Third Party Insurance, contrary to section 4(1) and (2) of the Motor Vehicle Insurance Act, Cap. 169 R.E. 2009. i The appellant pleaded guilty to all charges, and the trial court convicted him summarily, sentencing him to five years' imprisonment for the first count and six months' imprisonment for the second count, with both sentences to run concurrently. The trial Court did not impose a sentence to the third count. Aggrieved by the trial court's decision, the appellant lodged this appeal on six grounds as follows: 1. That the trial Court erred in law and in fact to harsh and pass excessive sentence against the appellant 2. That, the trial Court erred in law and in fact for failure to give the appellant option of ftne and without assigning reasons for the same 3. That the trial court erred in law and in facts for failure to consider the mitigating factors given by the appellant 4. That the trial Court erred in taw for convicting the Appellant without specifying the law and offence under which the accused was convicted thereof. 5. The trial Court erred in law for passing omnibus sentence 6. That the tria Court erred in law and in fact for con viedng the appellant while the facts adduced on the motorcycle was different to the motor vehicle on charge sheet. Submitting in support of the appeal, Mr. John Edward, counsel for the appellant dropped the 5th ground of appeal and argued the remaining grounds thematically while joining the first and second grounds of appeal. 2 Starting with the first and second grounds, Mr. Edward argued that the trial court improperly imposed custodial sentences without considering the option of a fine, which the law allows. He cited the case of Bakari s/o Hamis v Republic (1969) HCD 311, where the court held that where both a fine and imprisonment are provided as punishment, the fine should be the principal mode of punishment unless exceptional circumstances exist. Regarding the third ground, Mr. Edward contended that the trial court failed to consider mitigating factors such as the appellant's status as a first offender, his guilty plea, and the fact that he had dependents. On the fourth ground, counsel submitted that the trial magistrate did not specify under which sections of the law the appellant was convicted, violating section 312(2) of the Criminal Procedure Act, Cap. 20 R.E. 2019. Finally, Mr. Edward highlighted the discrepancy between the motorcycle's registration number as stated in the charge sheet (MC 909 CPD) and the facts presented during the plea (MC 907 CPD), arguing that this inconsistency rendered the appellant's guilty plea equivocal. Ms. Hellena Mabula, learned State Attorney, conceded in part, agreeing that the sentence imposed by the trial court was harsh given that the 3 appellant was a first offender. She referred to the Court of Appeal decision in Njile Samwel @ John v Republic, Criminal Appeal No. 31 of 2018, where leniency was recommended for first offenders. Ms. Mabula further agreed that the trial magistrate failed to specify the relevant provisions of the law in the conviction. Regarding the discrepancy in the motorcycle's registration number, Ms. Mabula admitted that this created an equivocal plea. She submitted that the remedy would be to remit the case to the trial court for a fresh trial. After a careful review of the trial court's proceedings and the submissions from both parties, this court finds as follows: Starting with the sentence imposed by the trial court as stated in the first and second grounds of appeal. The trial court sentenced the appellant to the maximum term of five years for the offence of causing death through careless driving and six months for riding without a valid license. However, section 63(2)(b) of the Road Traffic Act provides for a fine as an alternative to imprisonment, which the trial court did not consider. The appellant being a first offender and having pleaded guilty, should have been considered for a more lenient sentence in line with Bakari s/o Hamis and Salum Shaban 4 v Republic (1985) TLR 71. The failure to offer a fine option was a misdirection. On the third ground, the failure to consider mitigating factors, the trial court briefly noted the mitigating factors but did not adequately weigh them against the appellant's sentence. The appellant's status as a first offender, his guilty plea, and the fact that he has dependents should have led the court to impose a lighter sentence. This court reiterates the principle in Hattang v Republic (1969) HCD 234, which emphasizes reformative punishment for first offenders. On the fourth and sixth grounds regarding lack of specificity in the conviction of the appellant and inconsistency in the motorcycle's registration number between the charge sheet and the facts read during the plea. This Court is of the view that, in the circumstances of this case, the main issue for determination is whether the procedural irregularities noted occasioned a failure of justice, thereby warranting a reversal, alteration, or retrial under Section 388 of the Criminal Procedure Act. Section 388 of the CPA provides that a finding, sentence, or order of a competent court shall not be reversed on account of procedural irregularities 5 unless they occasion a failure of justice. In this case, the failure of the trial court to explicitly state the relevant statutory sections in its conviction and the registration number discrepancy were minor and did not mislead or prejudice the appellant, who voluntarily admitted to the charges. These discrepancies do not render the conviction defective, as they did not occasion any miscarriage of justice. This court can correct these minor defects under Section 388 CPA without ordering a retrial, as doing so would be unnecessary and unfair to the appellant, who has already partially served his sentence. Following precedents such as Michael Adrian Chaki v Republic (Criminal Appeal No. 399 of 2019), courts have held that minor errors in form are not fatal if the substance of the offence remains clear, and the accused understands the charges against him. Thus, the plea of guilty remains unequivocal. While the trial court correctly convicted the appellant, the sentence imposed was harsh and disproportionate. The law provides for a fine as an alternative to imprisonment for causing death by careless driving under Section 63(2)(b) of the Road Traffic Act, and custodial sentences should be reserved for serious or repeat offenders. The appellant's remorse, guilty plea, and status as a first offender should have been given more weight. 6 Having considered all the relevant facts, arguments, and the application of Section 388 CPA, this court finds that no failure of justice occurred to warrant a retrial or quashing of the conviction. However, the sentence imposed by the trial court was excessive and disproportionate to the circumstances. Accordingly, the following orders are made: (i) The conviction is upheld. (ii) The sentence of five years' imprisonment for causing death by careless driving is set aside and substituted with a fine of TZS 50,000 or, in default, two years' imprisonment. (iii) The six-month sentence for riding without a valid driving license is reduced to a fine of TZS 2,000 or, in default, six month's imprisonment. (iv) The conviction for riding without valid third-party insurance is confirmed, but no additional penalty is imposed. The appellant shall be released immediately upon payment of the fines unless otherwise lawfully held. 7 It is so ordered 8