Briefly, the facts of the case were that on 31st October 1998, at about 8.00 p.m., at Nyamtengela Village, in Kahama District, within Shinyanga Region, the appellant stabbed the
deceased MACHIBYA S/O MASELE with a knife for no apparent reason. The deceased died on the spot. According to the autopsy report
the cause of death was severe haemorrhage as a result of the stabbing.
In mitigation the appellant through his advocate Mr. Kaunda stated that he was a
first offender, married with two children aged nine and seven years respectively who depended on him. He had been in remand for about
three years. He was 26 years old, and that the killing occurred when the appellant and the deceased were trying to show each other
as to who was stronger than the other, which is a normal challenge among young men.
In sentencing the appellant the learned trial judge had this to say:
gI have taken into consideration that the accused is a first offender. I have also taken into consideration of all of what Mr. Kaunda
learned counsel for the accused has said in mitigation. I have also taken into consideration what the accused has said in mitigation.
This is a borderline case between murder and manslaughter. The accused killed the deceased on account of youth hooliganism. He stabbed
the deceased with a knife on the neck, a very vulnerable part of the body, simply because the deceased had challenged him that he
would do nothing. This is a deplorable act, and only legal technicalities had reduced this otherwise murder to manslaughter. I hereby
sentence the accused to serve thirty (30) years imprisonmenth.
The appellant was aggrieved by the sentence; hence this appeal. Before us in this
appeal the appellant was represented by Mr. Kahangwa learned advocate. Mr. Rwabuhanga learned State Attorney appeared for the respondent
Republic.
Mr. Kahangwa raised the following two grounds of appeal:
1.
That the honourable trial judge erred in failing to consider that the appellant readily pleaded guilty to the offence.
2.
That in the circumstances of the case the sentence of 30 years imprisonment is manifestly excessive.
In elaboration Mr. Kahangwa urged that although the learned judge had recorded that he had taken into consideration the appellantfs
mitigation, yet the sentence he meted out on the appellant was manifestly excessive, appearing as if he had not considered at all
the appellantfs mitigating factor. Mr. Kahangwa further urged that the learned trial judge considered more seriously the nature
of the offence which he said bordered on murder and failed to give due attention to the appellantfs mitigation. Mr. Kahangwa
said that the appellant was a first offender who had readily pleaded guilty to the offence. He said that where an accused pleads
guilty to the offence, it is a sign of remorse and should be treated leniently.
Mr. Kahangwa further argued that although the discretion on sentence is entirely
on the trial court, yet there are occasions where an appellate court can interfere, such as where the sentence is manifestly excessive.
He cited the case of BERNADETA d/o PAUL V R (1992) TLR 97 where this Court held, inter alia, gthat an appellate court should not interfere with the discretion exercised by a trial judge as to sentence except in such
cases where it appears that in assessing sentence the judge has acted upon some wrong principle or has imposed a sentence which is
either patently inadequate or manifestly excessiveh. It was the learned advocatefs submission that the sentence in the
instant case is manifestly excessive and should be reduced.
Mr. Rwabuhanga, learned State Attorney, conceded that the sentence was manifestly
excessive. He said that the circumstances of this case show that the appellant regretted for what he had done, and that is why he
even did not run away from the scene of crime, and pleaded guilty to the offence.
The question whether an appellate court can interfere with the discretion exercised
by a trial judge as to sentence has been dealt with by courts for many years. In the case of R v. MOHAMED ALI JAMAL (1948) 15 E.A.C.A.
126, the Court of Appeal for Eastern Africa had this to say:-
gAn appellate court should not interfere with the discretion exercised by a trial judge as to sentence except in such cases where it
appears that in assessing sentence the judge has acted upon some wrong principle or has imposed a sentence which is either patently
inadequate or manifestly excessiveh
In a later case ? JAMES YORAM V R (1951) 18 E.A.C.A. 147 the same Court also said:-
gA Court of Appeal will not ordinarily interfere with the discretion exercised by a trial judge in a matter of sentence unless it is
evident that he has acted upon some wrong principle or over-looked some material factsh
This principle was further expanded in the cases of FRANCIS CHILEMA and BERNADETA
PAUL (supra) where the accused had pleaded guilty to the offences charged. According to these last two cases a plea of guilty to
the offence was held to be an important factor to be considered when assessing sentence and that a trial judge must take it into
consideration when assessing sentence.
In the instant case the learned trial judge had recorded that he had considered all
the appellantfs mitigation. But unfortunately neither the appellant nor his advocate had raised the issue pertaining to the
plea of guilty in mitigation. We think when the learned trial judge remarked when assessing the sentence that he had considered the
appellantfs mitigation he meant the mitigating factors which were listed there, which did not include the plea of guilty. In
fact it would appear that the learned judge did not consider it at all because he did not record anywhere that he considered it.
Even if it was not raised in mitigation, it was the duty of the learned judge to consider it when assessing the sentence.
We are satisfied that had the learned judge considered the fact that the appellant
had pleaded guilty to manslaughter he would have imposed a lesser sentence
Since the learned trial judge overlooked a material factor, we are satisfied that
we can legitimately interfere with his sentencing discretion in this case.
In the circumstances we agree with the appellantfs advocate Mr. Kahangwa and
Mr. Rwabuhanga, learned State Attorney that in the circumstances of this case where the appellant had pleaded guilty, was a first
offender and had been in remand prison for about three (3) years, a sentence of thirty (30) years imprisonment was manifestly excessive.
We therefore set it aside and substitute thereof a sentence of twelve (12) years imprisonment. Appeal allowed to that extent.
DATED at DAR ES SALAAM this 16th day of July, 2004.
