Samwel Yose @ Kijangwa v. Republic, Cr app no 208 of 2005 (murder case)

IN THE COURT OF APPEAL OF TANZANIA

AT TANGA

(CORAM:   MSOFFE, J.A., KILEO, J.A. And KALEGEYA, J.A.)

CRIMINAL APPEAL NO. 208 OF 2005

SAMWEL YOSE @ KIJANGWA .……….. APPELLANT

VERSUS

THE REPUBLIC …………………….…. RESPONDENT

(Appeal from the Judgment of the High

Court of Tanzania at Tanga)

(Mkwawa, J.)

dated the 7^th day of September, 2003

in

Criminal Sessions Case No. 24 of 2002

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

JUDGMENT OF THE COURT

28 June & 9 July 2007

MSOFFE, J.A.:

        The appellant was charged with murder contrary to section 196 of the Penal Code.  In the information filed against him at the High Court of Tanzania at Tanga and dated 13/6/2002 it was alleged that on or about the 13^th day of February 2002 at Bwembwera village within Muheza District in Tanga Region he murdered one RAMADHANI SHEKIPWAPWA.

        The background giving rise to the case was briefly that at the material time the appellant and the deceased lived in the same village.  PW1 Ibrahim Musamba testified and stated that on the fateful day he had already retired to bed.  No sooner had he done so when he heard people fighting outside.  He went out and saw the appellant and the deceased fighting.  He reconciled them and succeeded in convincing the appellant to leave for his home.  A few minutes later the appellant returned to the deceased’s home wielding a weapon which resembled a billhook.  PW1 tried to prevent him from going back into the latter’s home but to no success.  The appellant forced the deceased’s door open and struck him with the billhook-like weapon.  The deceased died instantly.  The doctor who performed the autopsy opined that the death was due to severe bleeding.

        The gist of the appellant’s defence was that on the material day there was a fight between him and the deceased.  Indeed, at the preliminary hearing one of the agreed matters was that on the day in question the appellant and the deceased had a fight.

        The High Court (Mkwawa, J.) considered the evidence in its totality.  In the end, the judge was satisfied that the appellant committed the lesser offence of manslaughter contrary to section 195 of the Penal Code.  He accordingly convicted the appellant of manslaughter and sentenced him to a term of imprisonment for 15 years.  Dissatisfied, the appellant has preferred this appeal against sentence.

        The main complaint in the appeal is that the sentence was excessive.  The appellant’s view is that given the fact that the offence was committed in the course of a fight where he was labouring under the influence of alcohol the sentence was excessive.

        On his part Mr. Biswalo Eutropius Kachele Mganga, learned State Attorney for the respondent Republic, was of the general view that the appeal has no merit.  He submitted that given the conduct of the appellant on the day in issue, the judge properly exercised his discretion in handing down the sentence of 15 years.

        In the case of Silvanus Leonard Nguruwe v. Republic (1981) TLR 66, this Court observed that it is trite law that the Court of Appeal cannot alter a sentence imposed by the High Court on the mere ground that if it was sitting as a trial court it would have imposed a different sentence.  There have to be good grounds upon which this Court could interfere with a sentence passed by a trial court.  The question is whether there are good grounds for us to interfere with the sentence passed by the High Court.

        In the case of Swalehe Ndungajilungu v. Republic, Criminal Appeal No. 84 of 2002 (unreported), quoting Brian Slattery in his book Handbook on Sentencing at page 14, this Court cited with approval a few examples upon which an appellate court could interfere with a sentence passed by a trial court.  The examples are:-

(i)  Where the sentence is manifestly excessive – Ogalo s/o Owoura v. R (1954) 21 E.A.C.A. 270; Hadija d/o Omari v. R (1970 H.C.D. 158; or where the sentence is so excessive as to shock – Mac Donald v. R (1959) 2 R & N 157 at 169.

(ii)  Where the sentence is manifestly inadequate – R v Ratilal Amarshi Lakhani (1958) E.A. 140.

(iii)  Where the sentence is based upon a wrong principle of sentencing – Ogalo s/o Owoura v R (1954) 21 E.A.C.A. 270.

(iv)  Where the trial court overlooked a material factor – James v R (1950) 18 E.A.C.A. 147.

(v)  Where the sentence has been based on irrelevant considerations, such as the race or religion of the offender – Mohamed Ali v R (1969) H.C.D. 54.

(vi)  Where the sentence is plainly illegal, as when, for example, corporal punishment is imposed for the offence of receiving stolen property – R v Khamis Suleiman (1969) H.C.D. 117.

        In the instant case, in sentencing the appellant the judge, correctly in our view, took into account the evidence as a whole and the mitigating factors in particular.  In the end, he was satisfied that the above sentence was appropriate in the justice of the case.  In the light of this Court’s decision in Nguruwe and the examples set out above by Slattery, we have no hesitation in saying that we have no basis in interfering with the sentence passed by the judge in the exercise of his discretion in the matter.  Indeed, as contended by Mr. Mganga, the appellant’s conduct on the day in issue left much to be desired.  PW1 managed to separate him from the fight and convinced him to go back home.  Yet, a few minutes later he went back to the deceased’s house and killed him.  Surely, if we may venture to comment in passing, the appellant ought to have considered himself lucky for being convicted of the lesser offence of manslaughter in a matter where the prosecution evidence against him bordered murder.  The appellant should not be heard to complain at all about the sentence meted against him by the judge.  The sentence was not manifestly excessive to warrant interference by this court taking into account the circumstances obtaining in the case as a whole.

        We find no merit in the appeal.  We hereby dismiss it.

        DATED at TANGA this 2^nd day of July, 2007.

J. H. MSOFFE

JUSTICE OF APPEAL

E. A. KILEO

JUSTICE OF APPEAL

L. B. KALEGEYA

JUSTICE OF APPEAL

        I certify that this is a true copy of the original.

(I. P. KITUSI)

DEPUTY REGISTRAR