RASHID s KANIKI v REPUBLIC 1993 TLR 258 (CA)

 RASHID s KANIKI v REPUBLIC 1993 TLR 258 (CA)

Court Court of Appeal of Tanzania - Arusha

Judge Kisanga JJA, Ramadhani JJA and Lubuva JJA

B CRIMINAL APPEAL NO. 116 OF 1993

8 November, 1993

(From the sentence of the High Court of Tanzania at Arusha, Mushi, J.)

Flynote

C Criminal Practice and Procedure - Sentencing - When a Court of appeal can

interfere with the Trial Court's sentence.

-Headnote

D The appellant was charged with and convicted of the offence of defilement of a

girl below the age of fourteen years. He was sentenced to ten years imprisonment.

The appellant, who was a foster father of the defiled girl, appealed against the

sentence.

Held: (i) It is trite principle that before a Court of Appeal can interfere with the

Trial Court's sentence, E the Appeal Court must be satisfied that either the sentence

imposed was manifestly excessive or that the Trial Court ignored an important matter

or circumstance which ought to have been considered while passing the sentence or

that the sentence imposed was wrong in principle.

(ii) All the relevant circumstances of the case were duly considered by the

learned Trial Judge when deciding on the sentence.

Case Information

F Appeal dismissed.

No case referred to.

Mrs. Sumari, for the respondent.

[zJDz]Judgment

G Lubuva, J.A., delivered the following considered judgment of the Court:

Before the High Court of Tanzania, at Moshi, (N M Mushi J) the appellant was

convicted of the offence of defilement of a girl below the age of fourteen years

contrary to s 136(1) of the Penal Code. H He was sentenced to ten years

imprisonment. Initially, the appellant was charged with the offence of incest by male

contrary to s 158(1) of the Penal code as a first count and the charge of defilement

contrary to s 136(1) of the Penal Code in the alternative. At the end of the trial, the

appellant was I convicted of the offence of

1993 TLR p259

LUBUVA JA

defiling a girl under the age of fourteen years. He has now appealed to this Court

against the A sentence of ten years of imprisonment.

The facts are brief but unpalatable and are, on the whole undisputed. The incident

took place on 21 April 1988 at a place called Shanty Town within the outskirts of the

Municipality of Moshi. The victim of this unsavoury episode is one Mwamvita d/o

Rashidi (PW4) who was at the time of the incident B nine years of age. At the time

of the trial (1991) she had reached the age of thirteen years. In 1976, the appellant got

married to Asia Zuberi (PW2). In 1978 he (appellant) again started living with

Christina Sarwat (PW1) in a separate house from that of Asia Zuberi (PW2) (not a

legal marriage). C By that time, Christina Sarwart had a child of her own with

another person. This is the victim of this ugly sexual incident, Mwamvita Rashidi

(PW4). The appellant was therefore a foster father to Mwamvia (PW4) who was

staying with her grandmother, the mother of appellant in the said area of Shanty

Town in Moshi. On the day of incident (21 April 1988) the appellant upon visiting his

mother's D house, found Mwamvita in the company of two other children - Edward

(PW3) and Rashidi who was not called in at the trial to give evidence. The appellant

instructed Edward (PW3) and the other child Rashidi to go out of the house to attend

to some shamba work nearby. Mwamvita Rashidi was therefore left behind alone

with the appellant to clean up the servant's quarters. It was during this E time that

the appellant sexually assaulted Mwamvita Rashidi. Edward, (PW3) who was with

Ramadhani at a nearby shamba on hearing Mwamvita crying, rushed to see what was

happening. He (PW3) saw the appellant in the kitchen holding on to Mwamvita's

mouth. F

Thereafter, the matter was reported to Asia Zuberi (PW2) and Christina Sarwart

(PW1) the wives of the appellant. To both PW1 and PW2 Mwamvita narrated in

detail all that the appellant had done to G her. The child victim of the incident

Mwamvita (PW4) was taken to the hospital by PW1 for medical examination. In the

normal manner in such cases, PF3 was issued as a basis of medical investigation. The

police took up the case for investigation which finally resulted in the prosecution of

the appellant who was as explained earlier, convicted and sentenced to ten years

imprisonment. At H the start of the trial, Mr Itemba, Learned Counsel was assigned

to defend the appellant. However for some reason, in the course of the trial the

appellant showed lack of confidence in Mr Itemba. Consequently another Counsel Mr

A M Shayo, Learned Advocate was assigned to defend the appellant throughout the

trial. I

1993 TLR p260

LUBUVA JA

A The appellant's line of defence at the trial was denial of the offence. He claimed

that all the witnesses particularly his wives PW1 and PW2 were all out to fabricate

evidence in order to fix him (appellant). The Trial Judge rejected this defence rightly

so in our opinion. This was a case whose B determination depended on the

credibility and acceptance of the evidence of the witnesses. In our view, the Trial

Judge quite properly and thoroughly analysed the evidence of the witnesses which he

accepted as truthful. As a result the appellant was convicted of the offence of defiling

a girl below the age of fourteen years contrary to s 136(1) of the Penal Code.

C His appeal to this Court is against sentence only. In the course of hearing the

appeal and as already indicated, the appellant persistently raised arguments against

the conviction. He alleged that the witnesses particularly PW1 and PW2 his wives

had conspired to frame him. Likewise he claimed D that Mwambita (PW4) the

victim of the sexual assault and Edward (PW3) were all taught by PW1 and PW2 to

frame him. He insisted that there was no evidence that Mwamvita (PW4) was

sexually assaulted as no PF3 was tendered at the trial. The appellant further asserted

that he had intended to call witnesses who were not called to give evidence in

support of his defence. He finally pleaded with E this Court to be lenient with him

as the sentence of ten years is excessive. There was credible evidence of an unusual

conduct on the part of the appellant who disappeared soon after this incident as the

appellant was coming from the hospital in the company of his wife Asia Zuberi

(PW2) where F PW4, Mwamvita had been taken for medical examination.

According to PW2, during the time when the appellant was in hiding, she (PW2)

received a letter from the appellant in which he wrote:

`Mimi naishi porini angalia watoto.'

G The appellant denied having disappeared or written such a letter. We are in

agreement with the learned Trial Judge that it is incomprehensible that all these

witnesses particularly his wives should fabricate evidence against the appellant.

However the Court again reminded the appellant that he had H been allowed to

come to this Court on the question of sentence only. This being an Appellate Court,

matters of credibility of the witnesses are primarily the domain of the Trial Court

which has the advantage of assessing the demeanour of the witnesses and evaluating

the credibility of such I evidence. This Court will not readily interfere with the

decision of the Trial Court on such an issue.

1993 TLR p261

LUBUVA JA

For the Republic Mrs Sumari learned State Attorney supported the conviction and

sentence. She A submitted that though this was not an appeal against conviction but

as the appellant had argued at length on conviction, she urges that the conviction was

properly founded. She countered that there was abundance of credible evidence

which was believed by the Trial Judge. The learned State B Attorney wondered why

all these witnesses, PW1, PW2, PW3 and PW4 should all conspire to frame a case of

this kind against the appellant. As the appeal on the conviction was without merit, it

should be dismissed in its entirety, the learned State Attorney contended. The nonavailability

at the trial of the PF3 regarding the medical examination of PW4, did not

in any way vitiate or weaken the C prosecution case. Mrs Sumari, learned State

Attorney further submitted. It was Mrs Sumari's conclusion that in the circumstances

of the case, the sentence imposed against the appellant cannot be faulted, it was

lawful and not excessive for such a shameful act. D

Though indeed as rightly pointed out by Mrs Sumari, the learned State Attorney: this

was not an appeal against conviction, on the evidence on record and the persistent

argument of the appeal before us by the appellant, the appeal against conviction is, in

our view, without any merit. We are E satisfied that there was paucity of evidence of

PW1 and PW2, the wives of the appellant which was fully supported by the evidence

of the child victim of the sexual assault (PW4) and Edward (PW3). We find it highly

incredible that both the wives of the appellant (PW1 and PW2) and the children F

(PW4 and PW3) should all conspire to fabricate evidence against him. Even granted

that PW4 was not the child of the appellant as the appellant would want this Court to

believe, that in our considered view, is no reason for her (PW4) to frame a case of this

nature against him. The record bears no evidence of a bad relationship between the

appellant and the two wives, a version which the G appellant vainly tried to canvass

at the hearing of the appeal. We do not accept that. Though we could glean from the

evidence that the victim child of the sexual assault (PW4) was experienced in sexual

intercourse for the reasons advanced by the Prosecution (at page 19 of the record)

that the H PF3 which had been handed over to the police could not be traced and

the fact that PW4 had been told by the appellant to take a wash, we are convinced

like the learned Trial Judge that Mwamvita (PW4) was sexually assaulted.

Furthermore, we are also satisfied that the learned Trial Judge was justified in his

finding that it was the appellant who defiled Mwamvita I

1993 TLR p262

LUBUVA JA

A (PW4). The conviction though not a ground of appeal to this Court, can hardly be

faulted in these circumstances.

On the sentence in the circumstances of the case, there can be no doubt that this was

a serious and shameful act of sexual abuse against a child of tender age. As the learned

Trial Judge rightly B remarked, it is an offence that calls for severe punishment.

PW4, a child of tender age must in our view have suffered traumatic psychological

and mental torture at the very thought of her foster father involving himself with her

in this manner. At the hearing of this appeal, the appellant advanced no reasons to

show either that the sentence was unlawful or manifestly excessive. Having listened

to C the appellant's plea for leniency with great sympathy we see no reason to depart

from the old time established principle of criminal justice in matters of sentence on

appeal. That it is a trite principle that before a Court of Appeal can interfere with the

Trial Court's sentence, the appeal court must be D satisfied that either the sentence

imposed was manifestly excessive or that the Trial Court ignored an important matter

or circumstance which ought to have been considered while passing the sentence or

that the sentence imposed was wrong in principle. In this appeal, we are with respect

in E agreement with the contention of the learned State Attorney that all the

relevant circumstances of the case were duly considered by the learned Trial Judge

when deciding the sentence. We see no reason for interfering with the sentence

which in our view cannot be said to be excessive or unlawful.

F For these reasons the appeal against sentence is accordingly dismissed.

1993 TLR p263

A