SWAHELE HAMISI v REPUBLIC 1988 TLR 139 (CA)

 SWAHELE HAMISI v REPUBLIC 1988 TLR 139 (CA)

Court Court of Appeal of Tanzania - Mwanza

Judge Makame JJA, Kisanga JJA and Omar JJA

20 July, 1988 B

Flynote

Criminal Practice and Procedure - Sentencing - Whether the three and a half years

spent by the accused in remand custody, his relationship to the deceased and that the

deceased was the aggressor were factors which ought to have been considered by the

trial Judge before imposing sentence. C

Criminal Practice and Procedure - Sentencing - Whether there was ground to show

that sentence imposed on the appellant was excessive and that the trial judge erred in

assessing it.

-Headnote

The appellant was convicted of manslaughter on his own plea of guilty and was D

sentenced to six years imprisonment. He appealed against the sentence on the ground

that the trial Judge did not consider other factors in passing the sentence.

Held: (i) The trial Judge did not fail to consider an important matter which he ought

to E have considered in passing the sentence;

(ii) there were no adequate grounds to show that the sentence imposed on the

appellant was excessive, and that the appellant action of attacking the deceased with a

knife, a lethal weapon, was completely beyond proportion to the alleged provocative

act F done by the deceased to the accused.

Case Information

Appeal dismissed.

No cases referred to. G

Rugarabamu for the appellant.

[zJDz]Judgment

Kisanga, Makame and Omar, JJ.A.: The appellant was convicted on his own plea of

guilty to manslaughter, and was sentenced to 6 years' imprisonment. He is now H

appealing against the sentence.

In his memorandum of appeal, he raises the following mitigating factors:- That he was

a first offender; he had been in custody for about 31/2 years prior to the passing of the

I sentence; that he was related to the deceased and that the deceased was the

aggressor.

1988 TLR p140

In assessing the sentence, the learned trial judge considered all these matters; but took

A the view that the appellant's mode of retaliating by stabbing the deceased with a

knife, a lethal weapon, was completely out of proportion to the deceased's act of

merely kicking him. B

Mr. Rugarabamu, the learned advocate representing the appellant before us properly

conceded that the memorandum of appeal, which was filed by the appellant, raises no

new issues, and added that he himself had nothing to add to it.

We are satisfied that no grounds have been advanced to show that the sentence meted

C out to the appellant was excessive, or that the learned trial judge was wrong in

assessing it. Therefore there can be no ground for interfering. In the result, the appeal

has no merit and is accordingly dismissed.

D Appeal dismissed.

1988 TLR p140

E