Thomas Mwita @ Mutiba vs Republic (Criminal Appeal No 223 of 2016) [2018] TZCA 456 (17 July 2018)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MUGASHA, J.A.. MKUYE. J.A. And MWANGESI. J.A.^ CRIMINAL APPEAL NO. 223 OF 2016 THOMAS MWITA @ MUTIBA...................................................APPELLANT VERSUS THE REPUBLIC......................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Ma. i g e,J.) dated the 21st day of March, 2016 in HC. Criminal Sessions Case No. 178 of 2015 JUDGMENT OF THE COURT 13th & 17th July, 2018 MUGASHA, J.A.: The appellant was initiallycharged with the offence of murder contrary to section 196and 197 of thePenal Code (Cap. 16 R.E. 2002). It was alleged that, on 27/8/2014 at Rehebu Street within the district of Tarime in Mara region, the appellant did murder Marwa Athanas following a fight with the appellant over a drink. He pleaded not guilty to that offence. Later, the appellant offered a plea of guilty to a lesser offence of manslaughter i

contrary to section 195 of the Penal Code. He was accordingly convicted, and sentenced to thirty (30) years imprisonment. Aggrieved by the sentence, the appellant has preferred this appeal. In the memorandum of appeal he has filed one ground of complaint namely: "i. That, the sentence o f 30 years im prisonm ent im posed was excessive in the circum stances o f the case." The appellant was represented by Mr. Slyveri Chikwizile Byabusha, learned counsel whereas the respondent Republic had the services of Mr. Castus Ndamugoba learned Senior State Attorney. At the hearing, Mr. Byabusha argued that, although the trial judge stated to have taken into consideration the mitigating factors, the sentence which he eventually imposed did not reflect that he did so. He pointed out that, the circumstances surrounding the occurrence of the offence are reflected in the both the cautioned and extrajudicial statements of the appellant (exhibits P2 and P3). However, he argued, the facts prepared by the prosecution were not correct and that is why the High Court Judge

was probably misled. He contended that, the two exhibits clearly show that, the deceased was the initial aggressor who twice took and drank the appellant's brew and a fight ensued which culminated into a fatal stabbing incident terminating the deceased's life. He argued that, these circumstances were not considered by the trial judge and as a result, he imposed excessive sentence to the appellant. In this regard, he urged us to allow the appeal by reconsidering the excessive sentence imposed on the appellant. To back up his proposition, he referred us to the case of ra m a d h a n i ib r a h im vs r e p u b lic , Criminal Appeal No. 10 of 2002 (unreported). Finally, Mr. Byabusha prayed that, the appeal be allowed and that the appellant be released as he has remained behind bars for more than four years. On the other hand, Mr. Ndamugoba initially, did not support the appeal. However, after a brief dialogue with the Court he conceded that, the circumstances surrounding the occurrence of the offence indicate that the deceased was the initial aggressor. Thus, he as well urged us to interfere with the sentence imposed on the appellant because the judge did not consider material factors. 3

As a general rule, the Court will not readily interfere with the discretion of the trial court, exercised when passing sentence, unless it is evident that it has acted on a wrong principle, or overlooked some material factors. [See jam es s/ o y o ra m v s REPUBLIC (1950) 18 EACA 147, KATIN DA SIMBILA @ NG'WANINANA vs r e p u b lic , Criminal Appeal No. 15 of 2008, WILLY WALOSHA vs r e p u b lic , Criminal Appeal No. 7 of 2002 (all unreported)]. Also, in the case of r a m a d h a n i ib r a h im v s r e p u b lic , (supra) in determining the appeal against the sentence which was on higher side while the deceased was the initial aggressor, the Court said: " Generally^an appellate court w ill a lte r a sentence if it is evident that it is m anifestly excessive. What is im plied here is that the appellate court w ill not interfere with a sentence assessed by a tria l court m erely because it appears to be severe. I t w ill o n ly in te rfe re if it is p la in ly e x ce ssiv e in th e circu m sta n ce s o f th e c a se ." [Emphasis supplied]

In the case of w i l l y w a lo s h a v s r e p u b lic , (supra), the court was faced with a situation whereby the appellant being a first offender who had readily pleaded guilty to the charge of manslaughter was given a sentence of twenty (20) years imprisonment. This was considered excessive and reduced to four years after the Court had observed as follows: "It appears to us that, with resp ectalth o u g h ostensibly a judge m ay say he has taken into consideration m itigating circum stances in assessing sentence, it is not alw ays apparent that he has in fact done so. F o r e xa m p le , fir s t o ffe n d e rs w ho p le a d g u ilty to th e ch a rg e a re u s u a lly se n te n ce d le n ie n tly u n le ss th e re a re a g g ra v a tin g circu m sta n ce s we expect judges w ill in future dem onstrate m ore clearly, when assessing sentence, that they have properly taken into account both m itigating and aggravating circum stances o f each individual case . " [Emphasis ours] At the outset, we wish to point out that, exhibits P2 and P3 constituted facts which the appellant pleaded to as reflected at page 8 of the record of appeal and we agree with Mr. Byabusha that, such documentary exhibits were part and parcel of the facts

which the appellant admitted in his plea of guilty to the charge of manslaughter. In the case at hand, after convicting the appellant, his advocate gave four (4) mitigating factors as follows: One, the accused is a first offender. Two, he has regrettably confessed to the offence. Three, he has been in custody for more than a year and, four; he has five (5) children depending on him. In assessing the sentence the learned judge at page 9 to 10 of the record, stated: 'The accused is a first offender. He has confessed to the com m ission o f the offence. He has been in custody fo r m ore than a year and has five children depending on him. AH these m itigating factors have been taken into consideration. However, the accused used a dangerous weapon, to w it a panga and applied excessive force to slush (sic) the deceased's neck , a vulnerable p art o f human body. Before com m ission o f the offence the accused had taken tim e to go to h is home and

collect the weapon. There is no doubt that the killin g was voluntary though it m ight lack p rio r intention. In m y opinion therefore the circum stances surrounding to com m ission o f the offence ju stify fo r a befitting sentence to the accused so as to serve as a lesson to him and other wrong doers. Therefore, the accused is sentenced to 30 (thirty) years im prisonm ent." The assertion that " b e fo re th e co m m issio n o f th e o ffe n ce th e a ccu se d h a d ta ke n tim e to g o to h is hom e a n d c o lle c t th e w e a p o n is not a correct reflection of what transpired before the killing incident though, it surfaced in the facts presented by the prosecuting State Attorney at page 4 of the record of appeal. According to the cautioned and extrajudicial statements, which were before the sentencing judge, a fight was precipitated by the deceased who in two instances snatched the appellant's local brew. When the appellant resisted in the first instance, he was struck by the deceased and the appellant opted to buy another drink. However, still the deceased wanted to grab

the drink and a fight ensued. It was in the course of fighting, when the appellant's chin was bitten by the deceased and he got hold of the deceased's bush knife and he struck him to death. The attack was done under heat of passion and there was no option on where to strike because alltranspired while the fighting was going on. There is no indication that at some point the fight had ceased and the appellant went home to pick the weapon. The following own words of the appellant contained in his cautioned statement (exhibit P2) reveal what transpired just before the appellant stabbed the deceased: "Tulipokuwa tunaendelea kunywa pom be palitokea ugom vi ka ti yangu m im i na marehem u ambaye sim faham u jin a na niiikuw a sijaw ahi kumuona kab/a ya siku hiyo. Ugom vi wetu uiianza baada ya m im i kununua pom be ya Tsh. 1,000/= haiafu yeye akaichukua na kuinywa, baada ya kuona hivyo m im i niiim kataza iakin i yeye akanipiga ngumi. M im i nikaam ua kununua pom be nyingine tena ya Tsh. 1,000/= ia kin i yeye akataka aichukue tena kama aiivyofanya He ya kwanza, m im i nikam zuia ia kin i yeye alinikaba ndipo ra fik i yangu aitw aye

CHACHA s/o MASATO akamwambia kwa kum uuliza kwa n in i alikuw a anakunywa pom be yetu, ndipo marehemu akam piga kibao CHACHA S /0 MASATO, m im i nilipoona hivyo n iliin g iiia ka ti nikaanza kupigana na marehemu, katika kupigana huko niiifanikiw a kum iaza ch in i na yeye akaning'ata m dom oni ndipo m im i nikachukua panga ia m arehem u am baio iiiikuw a iim edondoka pem beni w akati huo yeye aiikuw a akijitah id i kusimama, na ndipo aiipokuw a akisim am a nilitaka kum piga kwa ubapa kwa maana ya ko ti ia panga kwenye shavu ia k in i nikiw a nafanya hivyo kwa bahati mbaya n iiijiku ta nim esham kata panga shingoni karibu na kisogo, baada ya kum kata m im i niiishangaa kuona anatoka damu w akati huo na m im i niiikuw a natoka damu mdomoni, hivyo nikaam ua kuondoka kueiekea nyum bani." Almost similar circumstances were stated in the Extra Judicial Statement of the appellant (exhibit P3) as follows: "Hapo m gogoro uiianza m tu huyo akasem a pom be h ii s i n i Thomas amenunua ndipo m im i Thomas niiiam ka na tukakabana na huyo mtu akanium a kidevu damu ikatoka. 9

Ndipo kwa hasira alikuw a na panga nikam toa na kum kata nayo shingoni mara m oja tu kwa bahati mbaya. Lengo nilitaka nim pige nayo ubapa bahati mbaya ikam kata aiiw eza kuondoka pale nam i pia niliondoka kwenda nyum bani kulala ikiw a saa 8.00 m chana." It was in those circumstances the appellant killed the deceased. In our considered view, had the judge properly considered those circumstances, he would not have concluded that, before the commission of the offence the accused went to his home to collect the weapon. As rightly submitted by all learned counsel, we are satisfied that the deceased was the initial aggressor and cause of his own peril. When such circumstances are considered together with the appellant being repentant on what he did on account of having pleaded guilty and being a first offender who has spent three (3) years and eleven (11) months behind bars, with respect it is vivid that the High Court Judge failed to consider material factors which normally entitle an offender to leniency. This warrants the interference by the Court to do what the trial court ought to have done. 10

Having considered all the above factors, we think the sentence of thirty (30) years imprisonment was on the higher side. As the appellant was arraigned on 27th August 2014, he has spent three (3) years and 11 months behind bar. We find this to be sufficient punishment considering the circumstances surrounding the occurrence of the offence. The appeal is therefore allowed to that extent and we order the appellant to be released forthwith. DATED at MWANZA this 14th day of July, 2018. S. E. A. MUGASHA JUSTICE OF APPEAL R. K. MKUYE JUSTICE OF APPEAL S. S. MWANGESI JUSTICE OF APPEAL I certify that this is a true copy of the original. B. A PO DEPUTY REGISTRAR COURT OF APPEAL li