Hasani Ally Salum Nyandau @ Jambo v. Republic, Cr app no 165 of 2004 (Murder case)

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

(CORAM:    MUNUO, J.A, KAJI, J.A, AND KIMARO, J.A)

CRIMINAL APPEAL NO. 165 OF 2004

HASANI ALLY SALUM NYANDAU @ JAMBO ………………  APPELLANT

VERSUS

THE REPUBLIC ……………………………………………………  RESPONDENT

(Appeal from the conviction and sentence

of the High Court of Tanzania

at Mtwara)

(Lukelelwa, J)

dated the 17^th day of February, 2004

in

Criminal Sessions Case No. 165 of 2004

---------------------

JUDGEMENT OF THE COURT

KAJI, J.A.:

On 27.4.2001, at Mtama Village office, Mtwara District, a quarrel erupted between Pw1 Ismail Salum Livanga, the chairman of the Village, and the appellant, over the office keys which the appellant had grabbed by force from Pw1. The matter was settled by the secretary of the Village Pw2 Jabir Mohamed Nampondi, who retrieved the keys from the appellant. However, later on that day, while Pw1 and the appellant were at the Village market, the deceased Ally Salum Livinga, who was PW1’s brother, came. Just when he arrived, the appellant picked a stool which was nearby and charged towards where the deceased was. Sensing the impending danger, the deceased ran away. The appellant ran after him furiously. Unfortunately the deceased tripped on a stone and fell down. The appellant drew a knife and stabbed him to death. The appellant who ran away from the scene of crime was subsequently arrested and charged with the offence of murder, contrary to section 196 of the Penal Code, Cap 16.However at the conclusion of the trial he was acquitted of murder but was convicted of the offence of manslaughter, contrary to section 195 of the Penal Code, Cap 16. He was sentenced to life imprisonment. It is against this sentence that the appellant preferred this appeal.

        At the hearing of the appeal the appellant was represented by Mr. Kalolo Bundala, learned counsel.  Ms Hilda Kabisa, learned Principal state Attorney, appeared for the respondent Republic. Mr Kalolo Bundala contended vehemently that, the sentence of life imprisonment to the appellant who was a first offender who had been in custody since early 2001 was manifestly excessive. He cited the decisions of the Court in the cases of Hatibu Ghandhi & Other vR (1996) TLR 12; and Brighton Boniface vR (CAT) Criminal Appeal No 54 of 1999 (unreported). Mr Kalolo Bundala observed that, a sentence of life imprisonment is the maximum for the offence, and that it was not called for for the appellant who was a first offender. He cited the decision of the Court in the case of Gaidon Nelson Mapunda  vR  (1982) TLR 318. Mr Bundala pointed out that, in assessing the sentence the learned trial judge appeared to have ignored the appellant’s mitigation, although he recorded that he had considered the same. The learned counsel took the view that, had the learned trial judge properly considered all these he would have imposed a lesser sentence than the maximum.

On her part Ms Hilda Kabisa, learned Principal State Attorney, did not resist the appeal. She concurred with what the appellant’s advocate had submitted.

As pointed out earlier on, this appeal is against sentence. It is trite principle that an Appellate Court will not interfere with a sentence just because it would not have imposed that sentence if it were the trial court, as was held by this Court in the case of Wilson Fanuel vR (1993) TLR 267. However the Court of Appeal can

 interfere with the trial court’s sentence where it is satisfied that:-

(i)                  The sentence imposed was manifestly excessive; or

(ii)                 The trial Court ignored an important matter or circumstance which ought to have been considered while passing the sentence; or

(iii)                Where the sentence imposed was illegal or wrong in principle.

        There are numerous decisions by the Court to that effect. See for instance the cases of Rashid Kaniki vR (1993) TLR 258, and Yohana Balicheko vR (1994) TLR 5.

        In the instant case the appellant’s complaint is that, the sentence imposed was manifestly excessive, and that the learned trial judge failed to consider an important matter that the maximum sentence is uncalled for for a first offender who has been in custody for a long time. Indeed it is the practice of courts not to impose manifestly excessive sentences to first offenders who have been in custody for a long time.  See for instance the case of Brighton Boniface vR (CAT) Criminal Appeal No 54 of 1999 (unreported), just to mention one. In the instant case, the appellant was a first offender, and at the time of sentence he had been in custody for about 32 months, that is, from April 2001 to February 2004.Under the circumstances, in our view, the sentence of life imprisonment was manifestly excessive. Also it is the practice of courts to desist from imposing a maximum sentence to a first offender as see that will leave no margin for a subsequent offence as was held by the Court in Gaidon Nelson Mapunda  v R (1982)TLR 318.

In the instant case where the appellant was a first offender, it was improper to be sentenced to the maximum sentence of life imprisonment. As demonstrated above, the learned Principal State Attorney did not resist the appeal and, in our view, rightly so. 

Since the appellant was a first offender who had been in custody for a reasonably long  period, we are satisfied that the maximum sentence of life imprisonment was manifestly excessive. We have taken note of the circumstances in which the offence was committed. Indeed it was pathetic. The circumstances were very close to murder. But even with this in mind we are still satisfied that the maximum sentence of life imprisonment was manifestly excessive.

In the event, and for the reasons stated above,we set aside the sentence of life imprisonment and substitute with a sentence of twenty (20) yeans imprisonment. Appeal allowed to that extent.

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