Kamoli Muhanzi vs Republic (Criminal Appeal No. 153 of 2013) [2014] TZCA 2177 (3 March 2014)

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA (CORAM: OTHMAN. C.3.. KILEO. 3.A. And LUANDA. J.A.^ CRIMINAL APPEAL NO. 153 OF 2013 KAMOLI MUHANZI ............................................ ............................... APPELLANT VERSUS THE REPUBLIC .............................................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Bukoba) (Kibella. 3 / > Dated the 2n d day of November, 2011 In Criminal Sessions Case No. 35 of 2009 JUDGMENT OF THE COURT 27th February & 3rd March, 2014 KILEO. 3.A.: This is an appeal against the sentence of seven years imprisonment which was imposed on the appellant Kamoli Muhanzi for the manslaughter of his wife Matatizo @ Helena d/o Maarifa. Initially, the appellant had been charged with the murder of his wife but on 02/11/ 2011 the Republic accepted his offer of plea of guilty to the lesser charge of manslaughter

contrary to section 195 of the Penal Code. He was accordingly convicted of manslaughter upon his own plea of guilty. The facts which were presented by the prosecution and which the appellant unreservedly accepted show that on the fateful day, i.e. 08/10/2012, the appellant, the deceased and their twosons - Frankand Emmanuel had gone to their farm to sow maize seeds. When they were through with sowing the maize seeds their son Emmanuel helpedhis mother by separating the handle from the hoe. Allof a suddenthe appellant took the handle from his son and used it to hit the deceased. The record has it that he did so three times and the deceased died on the spot. Having done that the appellant ran into the bush. He however returned to the scene after a short while wielding a knife with which he stabbed himself on his stomach. His self inflicted injuries were however not very serious. The appellant's explanation for the killing was that the deceased was molesting him by bewitching him. At the hearing of the appeal the appellant was represented by Mr. Josephat Rweyemamu, learned advocate. The respondent Republic was represented by Ms. Sakina Sinda, learned Senior State Attorney. The

memorandum of appeal filed by Mr. Rweyemamu on behalf of his client contains a sole ground: "That, considering the m itigating factors raised during the trial, the appellant contends that the sentence was excessive Arguing the appeal before us the learned counsel for the appellant submitted that had it not been the question of the best interests of the children the sentence of seven years imprisonment would not have been excessive. However, the sentencing judge erred not to consider the fact that the appellant was a father of nine children and the son of a blind father who needed his care, Mr. Rweyemamu argued. He contended that if the learned judge had put this factor into consideration he would have meted out a lesser sentence. The learned counsel referred us to Silvanus Leonard Nguruwe v. Republic, [1981] TLR 66 and Bernadetta Paul v. Republic, [1992] TLR 97 in support of his argument. Ms Sinda vehemently resisted the appeal. She said that as a matter of fact they regret that they did not file a cross appeal as in her view the sentence imposed was inadequate in the circumstances of the case. In response to the suggestion that the appellant should have been given a lesser sentence given the fact that he had nine children who needed his

care, the learned Senior State Attorney argued that by killing his wife who was the mother of his children in circumstances as shown in this case, the appellant had displayed that he was an irresponsible father and it may not be in the best interests of the children if he is given a lesser sentence. The crucial issue before us is whether there is any justification for us to interfere with the sentence imposed on the appellant by the learned High Court judge. One of the holdings in Bernadeta Paul v. Republic (supra) is that 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 excessive. The Handbook on Sentencing with particular reference to Tanzania by Brian Slattery has served as a reference book for this Court on many occasions when dealing with the issue of interference by an appellate court, of the sentence imposed by the trial court. See for example: Charles Mashimba v. R [2005] T.L.R 90, Patrick Matabaro@ Siima & Dawson Protace v. Republic, Criminal Appeal No. 333 of 2007

(unreported), Phillipo Pastory & Petro Pastory v. Republic, Criminal Appeal No. 331 of 2007 (unreported), Medard Karumuna @ Lugosura v. Republic, Criminal Appeal No. 332 of 2007 (unreported) and Agnes Julius v. Republic, Criminal Appeal No 188 of 2010 (unreported). At page 14 of the Handbook the learned author comments thus: "The grounds on which an appeal court w ill alter are relatively few, but are actually more numerous than is generally realized or stated in the cases. Perhaps the m ost common ground is that a sentence is "m anifestly excessive" or as is sometimes put, so excessive as to shock. It should be emphasized that that "m anifestly" is not mere decoration, and a court w ill not alter a sentence on appeal sim ply because it thinks it severe. A closely related ground is when a sentence is m anifestly "inadequate". A sentence w ill also be overturned when it is based upon a wrong principle o f sentencing.....An appeal court w ill also overturn a sentence when the tria l court overlooked a factor, such as that the accused is a ...first offender, or that he has committed the offence while under the influence o f drink. In the same way, it w ill quash a sentence which has obviously been based on irrelevant considerations....Finally an appeal court w ill alter a sentence which is plainly illegal, as when corporal punishm ent is imposed for the offence o f receiving stolen property."

We have given due consideration to the matter at hand. Mr. Rweyemamu's argument is that the learned sentencing judge overlooked a material factor in sentencing the appellant. The material factor which the learned judge is said to have overlooked is the fact that the appellant is a father of nine children who needed his care. Mr. Rweyemamu's contention is however not supported by the record. The record clearly shows, at page 11 that the learned judge considered the mitigating factors as stated by the appellant's counsel. The appellant's counsel, at page 10 of the record is shown as having said: "Fam ily wise , the accused has nine children and his father is a (sic) blind. For the children and under human rights, they need to be attended by their father especially for attending their schools. "In view of the above statement by the advocate for the appellant in the trial court it will not be correct to say that the learned judge did not consider the fact that the appellant had nine children and a father who was blind. We agree with Ms Sinda that by killing the mother of his children on the misguided belief that ' she was m olesting him by bewitching him ' the appellant displayed his unfitness in so far as responsibility to his family was concerned. In fact, given the circumstances of the case, the appellant

should have counted himself lucky that he got away with only seven years imprisonment. In view of the above considerations we find the appeal by Kamoli Muhanzi to have been filed with no good cause. We accordingly dismiss it. DATED at BUKOBA this 28th Day of February 2014. M. C. OTHMAN CHIEF JUSTICE E. A. KILEO JUSTICE OF APPEAL B. M. LUANDA JUSTICE OF APPEAL I certify that this is a true copy of the original. Z. A. f . \ DEPUTY REGISTRAR COURT OF APPEAL