Sarapion Babanzi & Others vs Republic (Criminal Appeal No. 596 of 2021) [2024] TZCA 1223 (10 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA f CO RAM: MUGASHA. J.A.. KHAMIS, 3.A.. And ISMAIL. J J U CRIMINAL APPEAL NO. 596 OF 2021 SARAPION BABANZI LAURIAN YOHANA... ROBERT DAUDI ....... 1ST a p p e l l a n t 2nd APPELLANT 3 r d APPELLANT VERSUS THE REPUBLIC RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Arusha) 3rd & 10th December, 2024 KHAMIS. 3.A.: The appellants, Serapion Babanzi, Laurian Yohana and Robert Daudi were arraigned in the District Court of Karagwe charged with the offence of arson contrary to section 319 (a) of the Penal Code, Cap 16, R.E 2019 (the Penal Code). The particulars of the offence were that on the 2n d day of January, 2020 at Ndama village within Karagwe District, Kagera Region, the appellants wilfully and unlawfully set fire to a dwelling house of one, Lilian Amos and caused damages of TZS 3,000,000/=. (Mwenda. 3 .^ dated the 18th day of Augustine, 2021 in (D O Criminal Appeal No. 11 of 2020 JUDGMENT OF THE COURT l \

The appellants pleaded not guilty to the offence and the matter proceeded to trial. At the trial, the prosecution lined up 3 witnesses and produced one documentary exhibit. The material background facts to this appeal are not difficult to grasp. They are centred on the family misunderstandings. The first appellant is blessed with a son, Mujuni Sarapion Bambazi who fell in love with a young girl in her early twenties, Lilian Amos (PW1). The two love birds got married and were blessed with some kids. However, their marriage was not an easy one as the appellant resisted the proposal at its inception citing his dislike for the girl. In sequel, he did not attend the customary bride price occasion. As it turned out, the appellant was divorced from Mujuni's mother who landed in the safe hands of another man. The appellant also wedded another woman who fell out with Mujuni. As a result, the appellant and Mujuni were not in speaking terms. Sometime in January, 2020 Mujuni was arrested in connection with alleged theft of clothes from his own grandmother, the first appellant's mother. During his incarceration, the first appellant vowed to remove "dust from the compound" meaning, to destroy Mujuni's house erected on the family land near his house. On the fateful day, PW1 had visited her home

village, Nyabwegira. When she was back, about 30 meters from her house, she spotted the appellants and seven other persons surrounding the house. Anxious to know the happenings, PW1 found a place to hide from where she could hear the group conversing. She heard the first appellant say the house was to be burnt when Mujuni is in custody. Shortly thereafter, she saw her father in law climb the ladder to the roof of the house. The second appellant gave him a 5 - litter gallon of liquid which was poured on the roof. The first appellant stepped down and entered the house followed by the third appellant who carried the gallon of liquid. The duo stayed inside for few a minute. As they walked out, the muddy house caught fire and was burnt to ashes. Joachim Bambaza (PW2) is the first appellant's young brother whose house is also in the same locality. At the time of the incident, he was at home, 10 meters from the scene and could vividly see the whole incident live. He described the time as 11.00 hours and recalled that at that time Mujuni Serapion was at Kayanga Police Station. His narration of the incident matched the details given by PW1. On cross examination by the first appellant, PW2 said his brother could not yield to the advice of not burning the house and instead, threw stones at him. PW1 and PW2 disclosed that the second and third appellants were

friends of the first appellant. On cross examination by the second appellant, PW2 said during the incident, the appellants were violent and could not stop at anything to burn the house. A policeman with force number G 3919 D/C Rodrick (PW3) was assigned to investigate the case and collected relevant details from the scene. He drew the sketch map (exhibit PI) and questioned key witnesses. He was also involved in the arrest of the appellants. The appellants were placed on defence and disassociated themselves from the accusations. The first appellant advanced a defence of alibi alleging that he was busy at the farm. The second appellant said he was in Mutukula, Misenyi District for some work. The third appellant claimed to have been at Bashiru's place for a burial ceremony. In the judgment delivered on 2n d December, 2020 the trial magistrate (F.E Haule, SRM) was content with the prosecution evidence and thus, found the appellants culpable as charged. After considering the mitigation, he sentenced each of them to life imprisonment. Aggrieved by the conviction and the sentence, the appellants unsuccessfully appealed to the High Court (Mwenda, J) where their grievances were dismissed for want of merits. 4

The appellants have now preferred the instant appeal setting out five grounds in the memorandum of appeal and seven others in the supplementary memorandum of appeal. At the hearing of this appeal, the appellants appeared in person, unrepresented. Mses. Wampumbulya Shani and Immaculate Mapunda, learned Senior State Attorneys, teamed up with Mr. Enosh Gabriel Kigoryo and Ms. Evaresta Kimaro, learned State Attorneys, represented the respondent Republic. At the commencement of hearing of the appeal, the appellants successfully sought leave of the Court to withdraw their appeal against conviction and urged us to consider the propriety of their sentence only. On the sentence imposed, the appellants contended that it was too long as they were first offenders with families depending on them; they have been in prison for a period of four years and are remorseful. The first appellant submitted that he is now sixty years old and sick. He invited us to consider that the offence was committed out of the family squabbles. Supporting the appeal, Mr. Kigoryo submitted that the sentence meted out to the appellants was the maximum under the law. He conceded that the appellants were first offenders and therefore, could be sentenced to a 5

lesser term. The learned State Attorney urged the Court to interfere with the sentence considering that the appellants have already served four years in prison. Before we embark on the exploration journey regarding the propriety or impropriety of the impugned sentence, it is expedient to set out the latitudes and longitudes for the voyage. The principles on which an appellate court can interfere with the sentence imposed by a trial court are well settled. The same were restated in Mussa Ally Yusufu v. Republic, Criminal Appeal No. 72 of 2006 (unreported) where this Court enunciated that: "We are fully aware o f the guiding principle that an appellate court, including this Court, must not interfere with the sentence which has been assessed by a trial court unless the sentence is illegal or the sentencing court followed a wrong principle or failed to take into account important mitigating factors such as the convicted person is a first offender, the period spent in custody before being convicted and sentenced, his age, health, and any other meritorious extenuating circumstances like that the convicted person readily pleaded guilty to the offence and thereby demonstrating remorse, a 6

sentence which is manifestly excessive and patently inadequate may be altered on appeal." In Robert Nicholaus v. Republic, Criminal Appeal No. 195 of 2010 (unreported), the Court added voice on this issue, thus: "We admit that sentencing is a difficult and controversial area o f the law where the rights and obligations o f the person have to be balanced against the requirements o f the society in which the offender lives. There is no shortage o f authorities on sentencing which give guidance to the courts in sentencing, but the first rule o f thumb is that sentencing is the domain o f the trial court and an appellate court should rarely interfere with the discretion o f the trial court in sentencing. The second rule o f thumb is that in sentencing there are always aggravating circumstances which may agitate for a stiff sentence, and mitigating factors which call for leniency in sentencing ." In John Mbua v. Republic, Criminal Appeal No. 257 of 2006 (unreported) the Court observed that sentencing is essentially an exercise of discretion by the trial court and went ahead to streamline the contours guiding interference with sentencing by the appellate court, thus: 7

"It has been emphasised by this Court in numerous cases that, an appellate court should not interfere with the discretion exercised by a trial judge or magistrate as to sentence except in such cases where it appears that in assessing sentence thejudge or magistrate has acted upon some wrong principle,, or has imposed a sentence which is either patently inadequate or manifestly excessive." In this appeal we have attended to this matter with caution and care. We have given a thought to the sole ground of appeal and submissions by the appellants and the learned State Attorney. The appellants were charged with and convicted of the offence of arson contrary to section 319 (a) of the Penal Code and sentenced to life imprisonment. Under section 319, any person who commits the offence of arson is guilty of an offence and is liable to imprisonment for life. The phrase "liable to imprisonment"^ used in section 319 of the Penal Code received judicial construction by the erstwhile East Africa Court of Appeal in Kichanjele s/o Ndamungu v. Republic [1941] 8 EACA 64, thus: "The wording used throughout the code is "shall be liable to" but a consideration o f the various sections shows in ourjudgment, that the use o f the 8

words "shall be liable to" does not import that the sentence mentioned in any particular section in which these words occur is merely a maximum and that the court may impose any lesser sentence below the limit indicated." In Opoya v. Uganda [1967] EA 752 the predecessor to this Court presided over by Sir Clement DeLestang, VP, elucidated the same phrase in the following words: "It seems to us beyond argument that the words "shall be liable to" do not in the ordinary meaning require the imposition o f the stated penalty but merely express the stated penalty which may be imposed at the discretion o f the court. In other words, they are not mandatory but provide a maximum sentence only and while the liability existed, the court might not see fit to impose it." In Jackson Bambembure v. Republic [1981] T.L.R 116 the High Court translated the phrase "liable to be punished"to mean that, a person convicted of the particular offence may be punished with the stated sentence, say for life or thirty years' imprisonment, but it does not necessarily mean that, he must be punished with that maximum sentence. If we may add, the accused can receive a lesser time in jail depending on 9

the seriousness of the offence and other relevant factors such as the circumstances of the accused and the public interest. We are alive to the fact that, as a process of determining a punishment for a crime after conviction, sentencing is a significant point in criminal justice. It involves determination of appropriate punishment, considering severity of the crime, the history of the convict, as well as the mitigating and the aggravating circumstances. Sentencing principles to be taken on board include proportionality, deterrence, retribution and rehabilitation. In this appeal, the question is whether the trial court properly exercised its discretion in sentencing the appellants. The answer to this issue can be deducted from page 61 of the record where the public prosecutor informed the trial magistrate of the lack of previous records incriminating the appellants and prayed for a severe sentence as a deterrent to others. The appellants prayed for leniency and invited the trial court to consider their circumstances. The first appellant said he had four children in secondary school, two children in primary school and one orphan. The second appellant said he had no family but was about to establish one. The third appellant averred that, he had five school going children. He also disclosed that his wife passed away in September, 2020 leaving him with two HIV positive children who require his close attention. 10

The trial magistrate made a very brief sentence stating that: 7 have considered the public prosecutor's prayers and aii convicts' mitigations, but given the nature o f the offence and the law, I hereby sentence each convict to imprisonment for life." In our view, the trial magistrate did not exercise any discretion after taking into account the public prosecutor's submissions and the appellants' mitigation. He simply meted out the maximum sentence which is not mandatory under the law. Section 319 of the Penal Code put in application the phrase "/s liable to imprisonment for life" which is lawful but not necessarily mandatory. In our view, the trial magistrate could have exercised his discretion and sentence the appellants to a lesser prison term, taking into account the mitigating factors. The absence of previous criminal record necessitated imposing lenient sentence to the appellants who were first offenders. Apparently, the trial court's failure to exercise discretion judiciously missed the eye of the High Court which warrants the Court's interference. In the circumstances, this appeal succeeds to the extent that the sentence of life imprisonment meted out to the appellant is set aside and substituted with the prison term that, if calculated from the date of sentence 11

will result to the appellants' immediate release from prison. Therefore, we order release of the appellants from custody forthwith unless they are continually held for other lawful cause. DATED at BUKOBA this 9thday of December, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Judgment delivered this 10th day of December, 2024 in the presence of the appellant in persons unrepresented and Mr. Jamal Issa, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. 12