Erick Samson Buberwa vs The Republic (Criminal Appeal No. 312 of 2022) [2024] TZCA 888 (13 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM ( CORAM: WAMBALI, J.A., MASHAKA. 3.A. And MASOUD. J.A.^ CRIMINAL APPEAL NO. 312 OF 2022 ERICK SAMSON BUBERWA............... ........................................... APPELLANT VERSUS THE REPUBLIC............... ........................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) fMasabo, J/) dated the 17th day of March, 2022 in HC. Criminal Sessions Case No. 123 of 2021 JUDGMENT OF THE COURT 12thJune, & 13th September, 2024 MASHAKA, 3.A.: The appellant, Erick Samson Buberwa, was married to his wife Mercy Telesphory Mukandala, now deceased, after a quarrel of passion. He was initially charged with murder contrary to section 196 of the Penal Code, Cap. 16 R.E. 2019 (the Penal Code). Before commencement of trial at the High Court, the respondent Republic substituted the charge to a lesser offence of manslaughter contrary to section 195 of the Penal Code, and the appellant pleaded guilty. He was thus convicted and sentenced

to eight (8) years imprisonment. Aggrieved, the appellant is now challenging the sentence that it is excessive. A brief background to this appeal is that on 16th June, 2020, at night hours the appellant and the deceased were in their matrimonial bedroom. It is alleged that the appellant requested for conjugal rights but the deceased refused and allegedly told him that she had another man whom she loved more than him. A squabble ensued, and in the course of it, the deceased went to the kitchen, took a pipe range and returned to the bedroom intending to hit the appellant. Allegedly, the appellant took hold of the pipe range and instead hit the deceased on her head. The deceased fell on a table and sustained a large wound on her face that caused her to bleed profusely and lost conscious. The appellant then took the deceased and laid her on their bed. He went out of the bedroom seeking help from one Herieth Dauson, their house maid who entered their bedroom and saw the deceased unconscious in a pool of blood on the bed and also, saw blood stains on the table and floor. The appellant then went to inform his neighbours about the incident and came back with a car and took the deceased to a nearby hospital for treatment. However, she was 2

declared dead on arrival at the hospital. The incident was reported to Kimara police station by the appellant and he was apprehended. An examination of the deceased body was conducted by Daudi Twaha, a doctor at Tumbi Hospital and a post mortem report exhibit PI was issued. It was revealed that the cause of death was multiple fractures on the forehead causing severe head injury. The police officers visited the scene of the crime, seized one pipe range, a diary book, two blood stained bed sheets and pillow cases. They also filled the seizure certificate which was admitted in evidence as exhibit P4 collectively and drew a sketch map of the crime scene which was admitted as exhibit P2. Upon interrogation by H. 6006 DC Lukumay, a police officer, the appellant confessed to have committed the offence. The appellant was prosecuted for a lesser offence of manslaughter and the trial court convicted the appellant on his own plea of guilty as alluded above. After a scrutiny of his mitigation that he was a first offender, the trial court sentenced him to eight years imprisonment after deducting two years which the appellant spent in custody. Aggrieved, the appellant preferred this appeal on the following grounds:

1. That, having regard to the facts o f the case on record and the circum stances o f the case; before, atf and after the incident, the learned tria l judge grossly m isdirected h erself in law to im pose an excessive sentence to the appellant who was first offender without considering a ll m itigating factors which were m itigated by the appellant.
2. That the learned tria l judge was bias in determ ination o f the sentence, thereby solely reasoned that the death was caused by the provocation o f denial o f conjugal right, while taking no recognizance on other facts, VIZ; the provocative words which was uttered by the deceased to the appellant that she had another man whom she loved more than the appellant and an attem pt o f the deceased to h it the appellant with the pipe range. On 12th June, 2024, when the appeal was called on for hearing, Mr. Musa Mhagama, learned counsel entered appearance for the appellant who was present whereas, Messrs. Job John Mrema, learned Senior State Attorney assisted by John Edgar Mwakifuna, learned State Attorney, represented the respondent Republic. Mr. Mhagama prayed to abandon the second ground of appeal and opted to amplify the first ground of appeal on three aspects that; one, circumstances of the commission of the offence were not considered; two, misdirection on the part of the High Court Judge on the motive while

committing the offence; and three, the High Court Judge failed to consider that the appellant had to take care of his step child, Daniel. While expanding on the three aspects, Mr. Mhagama referred us to pages 11 and 12 of the record of appeal, that there was misunderstanding between the appellant and the deceased that the appellant was denied conjugal rights causing arguments between the duo and it was the deceased who brought the pipe range in the bedroom which was then used against her. He also referred to the appellant's cautioned statement (exhibit P3) and the post mortem report (exhibit PI), that the wound on the deceased's head was a result of falling on the table during the squabble causing a deep wound on her forehead. He urged that these factors ought to be considered. He further urged that; the denial of conjugal rights was a provocative act which was described in exhibit P3 at page 39 of the record of appeal while the trial Judge was not convinced that it was a provocative act. Thus, she was required to consider the motive which caused the death of the deceased, as the words used in her response were provocative. Also, the trial judge failed to consider the fact that the 5

appellant has a dependent, step son who has no parent to take care of him, he argued. He referred us to the case of Elly Millinga v. Republic (Criminal Appeal No. 503 of 2021) [2023] T7CA 17521 (24 August 2023, TANZLII) and Yeremiah s/o @ Jonas Tehani v. Republic (Criminal Appeal 100 of 2017) [2020] TZCA 65 (11 March 2020, TANZLII) and prayed to the Court to reduce the sentence to three years imprisonment. In reply, Mr. Mrema vehemently opposed the appeal, basing his submission on two points. One, he contended that the High Court did justice to the appellant, and two, he implored the Court to enhance the sentence to twenty years imprisonment. He argued that, the High Court considered all the factors of the case, the dangerous weapon used, a pipe range and the cause of death which was a fight between a husband and wife. He referred the case of Elly Milinga v. Republic (supra) that sentencing is a decision made in the exercise of discretion by the trial court and an appeal court may only intervene where the exercise of the discretion is vitiated by error, such that there has been no lawful exercise of that discretion. Additionally, the learned Senior State Attorney reasoned that section 198 of the Penal Code provides the sentence for the offence of

manslaughter is life imprisonment. Therefore the sentence of eight years meted by the High Court was a lesser sentence. He bolstered his assertion with the case of Fatuma Nurdin v. Republic (Criminal Appeal No. 418 of 2013) [2014] TZCA 188 (28 October 2014, TANZLII) and invited the Court, being the first appellate court to enhance the sentence. He distinguished the case of Elly Milinga v. Republic (supra) with the present appeal on the fact that the appellant pleaded guilty before the trial court and was sentenced to twenty years imprisonment. However, on appeal, this Court found that the appellant had spent 10 years in custody which was not considered during sentencing. Therefore, the Court reduced the sentence to ten years imprisonment. Mr. Mrema still persistent, he submitted that though it was correctly stated that the deceased was the one who took the pipe range from the kitchen, before that incident, the record revealed that the deceased had been beaten. In addition, Mr. Mrema referred to exhibit PI on how the deceased was wounded by the pipe range causing multiple fractures on her forehead and due to the force exerted caused a 4cm long and 1cm deep wound. It was his contention that falling on the table could not have caused the multiple fractures and maintained that the appellant had badly 7

beaten the deceased on her forehead and curtailed her life, because falling on a table could not have caused multiple fractures, he insisted. It was Mr. Mrema's further submission that, the trial Judge had made reference to page 17 of the Tanzania Sentencing Guidelines, 2023 which underscored the need to firstly consider in the sentencing process the maximum and minimum sentences set by the law. He added that the level of seriousness of the offence as to the case at hand, attracted the high-level category, and thus it was upon the trial Judge to assess the nature and circumstances of the offence, the offender, the victim and the nature and extent of the harm caused. In this regard, though the minimum sentence recommended for manslaughter is 10 years, he strongly maintained that the trial Judge ought to have considered more than the minimum sentence of ten years considering the use of a dangerous weapon and the sadistic conduct by the appellant forcing to have sex with the deceased. Concluding on the issue concerning taking care of the dependent, it was contended by the learned Senior State Attorney that this mitigating factor was baseless because the appellant killed his mother and made him an orphan. He wondered, how could the appellant have any love and 8

empathy for the step son in such a circumstance. Thus, he prayed to the Court to invoke its powers under section 4 (2) of the Appellate Jurisdiction Act, Cap 141 R.E 2019 (the AJA) and enhance the sentence meted to the appellant from eight years to twenty years imprisonment. In his brief rejoinder, Mr. Mhagama reiterated his submission in chief. He further urged that though it is within the discretion of the trial court to impose a sentence, the High Court did not take into consideration all the circumstances explained in exhibits PI and P3 and that sentencing was not to be assessed in the high level as submitted by the learned State Attorney as the appellant was defending himself. He concluded that, the circumstances of this case fall squarely within the case of Elly Millinga {supra) that there was denial of conjugal rights and provocative words were uttered. Having heard the learned counsel arguments for and against the appeal, the issue for our determination is whether the sentence which was imposed to the appellant by the trial court was excessive, and whether in the circumstances, the Court can intervene and vary the sentence. To begin with the principle of sentencing, an appellate court can only interfere with a sentence of a trial court if it is obvious that the trial 9

court has imposed an illegal sentence or has acted on a wrong principle or has imposed a sentence which in the circumstance of the case was manifestly excessive or clearly inadequate. See for instance, Mohamed Ratibu @ Saidi v. The Republic, Criminal Appeal No. 11 of 2004 (unreported), Charles Mashimba v. Republic [2005] T.L.R. 90 and Fatuma Nurudini v. Republic (Criminal Appeal 418 of 2013) [2014] TZCA 188 (28 October 2014, TANZLII). In addition to that, first offenders who plead guilty to a charge are usually sentenced leniently, unless there are aggravating circumstances. Also, the period an offender may have spent in remand prison before he is sentenced may also be taken into consideration. See for instance, Willy Walosha v. Republic, Criminal Appeal No. 7 of 2002 (unreported) and Kakuru Osward @ Mulongo v. Republic (Criminal Appeal No. 433 of 2018) [2019] TZCA 420 (2 December 2019, TANZLII). In the light of the principle revisited above, the issue here is whether the trial court failed to consider the mitigating factors resulting into a stiff sentence hence a need for the the appellate court to interfere. It was Mr. Mhagama's contention that the trial judge failed to take into consideration the factors which led to the death of the deceased, the

fact that the appellant was denied conjugal rights and the declaration by the deceased that she had another man whom she loved and the incident of the deceased going to the kitchen to fetch a pipe range and tried to hit the appellant were provocative acts which forced the appellant to kill her wife without malice. Further, he was a first offender who confessed to the police and subsequently pleaded guilty before the trial court and he has to take care of his step son. We take note that the trial judge took into consideration all the factors and implied that in a fit case they attracted leniency. The extract of the sentence of the trial court at page 24 of the record of appeal reads: ’7 have carefully considered a num ber o f factors. In particular, I have considered the attecedents m itigation, the circum stances o f the death, the accused's conduct on the fateful day after his arrest and arraignm ent in court. The offence against which E ric Samson Buberwa has been convicted with is a serious offence involving term ination o f one's life more so, o f an intim ate partner/w ife and a mother. Regarding the attecedents, I have considered the fact that although the convict is a first offender,

h is failure to control his anger and use o f a dangerous object, a pipe range , to h it the deceased on the head which is a vulnerable body p art was unfounded and ought to have been avoided as the consequence o f such act was too obvious. And fo r that re a so n a s tiff sentence be in flicted to deffer the occurrence o f such offences. On the m itigation side , m ost relevant is the fact that death occurred out o f fig h t which according to exhibit P3 was instigated by the deceased. Much as I agree that the disclosure o f an extra m arital relationship is provocative, I am not convinced that the denial o f the conjugal rig h t is provocative to the extent o f beating a wife le t alone term inating her life. On the other hand, the conduct o f the accused person upon noticing that the deceased has been severely injured signals h is good intention to serve the life o f his wife. The fact that he tried to manage the situation and having failed he went outside to look for help and managed to take the wife to hospital dem onstrates both h is repentance and attem pt to rescue the situation. 12

Also relevant here is the fact that after the wife was declared dead, he did report the incident at the police station and has thereafter rem ained cooperative to the authorities and the court. By entering a plea o f g u ilty he has n ot only served the precious tim e o f this court but prevented such circum stances where he would have probably escape ju stice by securing a total acquittal during tria l by reason o f legal technicalities. AH these does in m y humble view, ca ll for lenience. I am however live to the prevalence o f incidences o f killin g by intim ate partners to which a num ber o f people, m ostly women have fallen victim. Defferance o f such acts is crucial else, the num ber o f victim s w ill keep on sealling up. In a com bination o f these factors which I have carefully weighed, I am o f the opinion that a prison term for a period o f 10 years would be a befitting sentence under the circum stances. However, considering that the convict has spent approxim ately two (2) years in custody waiting to be arraigned in this court, I w ill reduce the sentence to eight years. 13

Accordingly, the convict sh all serve a prison term o f eight (8) years." The above extract of the High Court explains itself as it enjoys Mr. Mrema's full support- We find no reason to fault it and we shall explain. In the first place, we share the views of Mr. Mrema that according to the post mortem report (exhibit PI), the appellant had inflicted multiple injuries which landed on the most vulnerable part of the deceased's body; her forehead. The evidence was corroborated by the cautioned statement (exhibit P3) in which the appellant had stated that he snatched and took the pipe range from the hands of the deceased and instead hit her on her head, causing multiple fractures of her forehead. We also agree with Mr. Mrema's assertion that the multiple fractures on the deceased's forehead could not have been caused by falling on a table as it points to the exerted force used by the appellant hitting the deceased with the pipe range. On the other hand, we agree with Mr. Mhagama that the words if they were uttered by the deceased were provocative, we ponder the following questions. Does utterance of the alleged words justify the act by the appellant? Did the appellant have a right to exert such traumatic force on the deceased for the denial of conjugal rights? We are left with the appellant's contention as the deceased could have been the only person 14

to confirm what actually took place during the altercation but the appellant has silenced her. Thus, we agree with the considered opinion of the trial Judge that such denial of conjugal rights was not and could not per se be a justification to curtail the precious life of his wife. Also, like the trial Judge we take into consideration the dangerous weapon used by appellant to hit the deceased. According to the Tanzania Sentencing Guidelines, 2023 referred to us by Mr. Mrema, the maximum sentence for the offence of manslaughter in terms of section 198 of the Penal Code is life imprisonment. The Guidelines provide for three categories which are to be considered when a sentence is to be imposed on a guilty person, that is; high, medium and low levels. In the high-level category, sentence ranges from ten years to life imprisonment, while the medium level ranges from four years to ten years and the low-level ranges from absolute or conditional discharge to four years. The trial court can impose a high level category sentence in a case where there is use of dangerous weapon or substance, there is serious multiple wounds, the offence is motivated by a gang, the offence was intended to obstruct or interfere with the course of justice, the death caused by domestic violence, death caused by sexual sadistic conducts, 15

killing of vulnerable person(s) e.g. age, disability, gender, the killing of two or more persons, death based on race, tribe, ethnicity, religion, sexual orientation and disability of the victim and killing of public officials. The medium level category considers, no use of weapon, non-fatal single blow that caused death after sometimes and in low level, death is caused by recklessness, negligence, reasonable chastisement by parent/ guardian, applying excessive force in claim of right, use of unreasonable force in self defence or property or person, infanticide, high degree of provocation depending on the extent of excitement, mental state of offender not amounting to insanity in law (temperament). Taking into consideration the above guidelines on the categories of imposing sentence for the offence of manslaughter, we are satisfied that having regard to the manner in which the offence was committed, the dangerous weapon used by the appellant, the sentence to be imposed squarely falls within the high-level category and thus the sentence often years was proper for the appellant. In view of the above, we are of the opinion that the trial judge rightly considered all the factors obtained in the case. In Elly Millinga v. Republic (supra) we had this to say: 16

"We are o f the considered view that had the learned tria i m agistrate considered that the minimum im posable sentence fo r m anslaughter w ithin the high-level category was ten years im prisonm ent (not fifteen years ja il term ) and that the appellant was not to blame fo r the ten years delay in pleading g u ilty to the offence o f manslaughter, he would have im posed a lighter sentence. He could have possibly arrived a t twenty years' im prisonm ent from which he would have deducted the ten years period o f pre-conviction incarceration " From the above extract, it can be discerned that the facts were different from the instant case. Thus, we find the trial Judge did not violate any principles which were required to be considered during sentencing. Before we conclude, we find it appropriate to state our observations on the invitation made by Mr. Mrema that the Court should invoke its powers under section 4(2) of AJA to enhance the sentence of ten years meted to the appellant to twenty years imprisonment. We, respectfully, decline the invitation by Mr. Mrema. We are of the considered opinion that the respondent Republic ought to have filed a cross appeal if she was 17

dissatisfied with the sentence. There is no cross appeal before us. Consequently, we find no justification to interfere with the judicious discretion of the trial Judge. The appellant should therefore serve the sentence of eight (8) years imposed by the High Court. In fine, we find the appeal is devoid of merit, thus we dismiss it in its entirety. DATED at DAR ES SALAAM this 10th day of September, 2024. F. L. K. WAMBALI JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL Judgment delivered this 13th day of September, 2024 in the presence Appellant in person via video conference from Ukonga prison and Mr. Genes L. Tesha, learned Senior State Attorney for the Respondent, is hereby certified as a true c o d v of the oriainal. D. P. MNYWAFU DEPUTY REGISTRAR COURT OF APPEAL 18