David Matengo and Kefa Wami v Republic 1985 TLR 100 (HC)

DAVID MATENGO AND KEFA WAMI v REPUBLIC 1985 TLR 100 (HC)

Court High Court of Tanzania - Dodoma

Judge Ruhumbika J

November 20, 1985

(PC) CRIMINAL APPEAL 4 OF 1985 G

Flynote

Criminal Practice and Procedure - Sentencing - Powers of Primary Court for offences not scheduled under the Minimum Sentences Act, 1972. H

Criminal Practice and Procedure - Sentencing - Enhancement of sentence on revision -Whether District Court can enhance sentence beyond what Primary Court could lawfully impose.

-Headnote

The appellants were convicted of unlawful wounding c/s 228 (1) of the Penal Code. I The Primary Court which convicted them imposed sentences of fines of Shs.500/= against each of them. Unlawful wounding is not an offence A scheduled under the Minimum Sentences Act 1972. Therefore, the maximum sentence which the primary court could impose in this case was a term of imprisonment for twelve months. On revision by the District Court, the sentences were enhanced to imprisonment terms of two years. They appealed against the sentences.  

Held: (i) A proper sentence to impose is always at the discretion of the convicting court and a reviewing tribunal should not interfere with a sentence unless the convicting court misdirected itself in principle or the sentence is manifestly unsuitable; C (ii) the sentences imposed by the Primary Court in this case were not improper and in sentencing the court did not misdirect itself in principle therefore the sentences as enhanced by the District Court cannot be sustained because they are in excess of what the Primary Court could lawfully impose and the original sentences are sufficient to serve D the ends of justice.

Case Information

Appeal allowed.

Cases referred to:

1. R v Juma Iddi, [1971] H.C.D., n. 373

Senguji, for the Republic

Judgment

Ruhumbika, J.: This is an appeal from the decision of the F District Court of Dodoma which court enhanced the sentences of the two appellants before this court to imprisonment for a period of two years each from the sentences of fines of Shs.500/= imposed against each of the two appellants for the offence of unlawful wounding c/s.288 (1) of the Penal Code. The appellants were convicted by the Mvumi G Primary Court and sentenced as stated. The trial court also ordered the two appellants to pay Shs.2,000/= each as compensation to the complainant. The main ground of complaint in this appeal is that the District Magistrate who enhanced the sentences of the appellants erred in enhancing these sentences to two years because H that was in excess of the powers of the Primary Court as provided for in the Third Schedule to the Magistrates' Court Act, 1984 (Act no. 2 of 1984). Under the Primary Courts Criminal Procedure Code, paragraph 2 (1) (a) as contained in Act No.2 of 1984, the maximum term of imprisonment that a Primary Court can impose I for an offence which is 1985 not scheduled under the Minimum Sentences Act, 1972, is twelve months. The offence A of unlawful wounding is not scheduled under the Minimum Sentences Act, 1972.  

Therefore, under the provisions of s.21 (1) (a) of the Magistrates' Court Act, 1984 the District Court cannot enhance a sentence in excess of what the Primary Court could B have imposed for that offence. This clearly shows that the District Court erred in enhancing the sentences to two years, which sentences are in excess of the powers of the Primary Court that convicted the appellants. In addition to that obvious misdirection by the District Court, it was strongly argued for the appellants, and was conceded to by the Republic, that it was ab initio not justifiable C for the District Court to call the record and enhance the sentences imposed by the Primary Court. This is because the thinking of the District Magistrate in enhancing the sentences was induced by the fact that the injuries sustained by the complainant were classified by the medical personnel who treated the complainant as "dangerous". D However, notwithstanding the obvious fact that the medical report classified the injuries as "harm" and not "dangerous", the order of District Court in enhancing the sentences talks of "dangerous" injuries. As was held by the late (Sir) Biron J., in the case of R. v Juma Iddi [1971] H.C.D. E n.373 "the proper sentence to impose in any particular case is at the discretion of the convicting court. A reviewing tribunal will not lightly interfere with the sentence imposed by such a court, unless the court misdirected itself in principle or the sentence itself is so manifestly inadequate to be unsuitable." 

In this case, the trial Primary Court had the opportunity of assessing the whole evidence F brought before it and also to see the complainant's alleged injuries as shown on the medical report. After that the trial court decided on the suitable sentences to be imposed against the appellants. The Court sentenced each appellant to a fine of Shs.500/= and ordered each appellant to pay Shs.2,000/= as compensation to the complainant. G This court does not find that the original sentences imposed by the trial Primary Court are so manifestly improper that they cannot be sustained nor does this court find that the Primary Court misdirected itself in principle on the sentences passed. Therefore, apart from the fact that the enhanced sentences of two years by the District H Court cannot be sustained as they are in excess of what the Primary Court could impose under the law, this court does not see why the original sentences imposed by the Primary Court could not serve the ends of justice in this case. The Primary Court, as already observed, had the discretion to consider the sentences and unless those sentences were I manifestly improper that they could not be sustained the District Court was not justified in interfering with them. Accordingly, this appeal is allowed. The sentences of imprisonment of two years imposed by the District Court against the appellants are set aside and the original sentences of fines of Shs.500/= against each appellant are restored. The Primary Court orders of compensation against each appellant remain unaltered. B The two appellants have to be released from prison forthwith if not held on otherwise lawful grounds.

Appeal allowed.

1985 TLR p103

D