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

1985 LTR p101

RUHUMBIKA J

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. B

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 E

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 TLR p102

RUHUMBIKA J

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

1985 TLR p103

District Court was not justified in interfering with them. A

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.

C Appeal allowed.

1985 TLR p103

D