Stephen S/O Mkone & Mara Coop. Union (1984) Ltd vs Republic [1987] TZHC 17 (1 July 1987)


Moshi, J.: This is an appeal against sentence.  The first and second appellants, who were the driver and owner of a motor vehicle respectively, were arraigned at Musoma E District Court on an indictment containing two counts under the Road Traffic Act, 1973 - Driving a motor vehicle on a Public road with defect c/o 39 (1) (a) and 5 of the Act (1st appellant), and Permitting the motor vehicle to be driven on the Public Road o/s F 39(1) and 6 of the Act (2nd Appellant).  Upon being convicted on their own plea of guilty, the first appellant was sentenced to a fine of shs. 10,000/= or 9 months imprisonment in default, whereas the second appellant were to pay a fine of shs. 15,000/= or 9 months imprisonment in default.  They were dissatisfied with the sentence, which appeared to them to be unduly harsh, and hence this appeal. G
Both the learned advocate for the appellants, Mr. Butambala, and the learned state attorney for the Republic, Mr Malamsha, are of the view that the sentences were, in all the circumstances, on the high side.  With respect, I am, on my part, firmly of the same view.  The record tells us that the learned trial magistrate did not inquire into the H appellant's power to pay the fine.  Yet it is one of the most cherished principles of punishment that a fine must bear reasonable relation to accused's power to pay - see R. v Samon [1971] H.C.D 224.  A fine that will prove impossible for the offender to pay, having regard to this income and financial commitments, will take away the right already I given to the offender by the law, for good

reason, to escape incarceration since he will automatically have to go to jail as an A alternative for his inability to pay the fine.  It would be unjudicious and highly unfair for a court to impose such a fine as was imposed on the first appellant, a mere driver, without inquiring into his power to pay.  No previous conviction was proved against any of the appellants.  They were both first offenders.  The defects pertaining to the vehicles were B trivial, and they both readily pleaded guilty to the charge.  All these factors ought to have earned them some leniency.  There can hardly be a doubt that the sentences passed were, in all the circumstances, too severe.  Going by what Gorges, C.J. (as he then was) C said in G. Avel & A. Hocken v R. [1970] H.C.D 159, in deciding whether or not it should interfere with a sentence, an appellate tribunal must consider whether the magistrate has in fact misdirected himself in any particular, or whether the sentence is so manifestly excessive that it is clear that there must have been a misdirection even though not explicity.  In this case the trial magistrate did not comment on anything before passing D the sentence.  He said nothing.  He simply pronounced the sentence.  The principles upon which he acted in sentencing the appellants were therefore not explicit.  However, for the reasons already stated, I am satisfied that the sentence was so manifestly E excessive that it is clear that there must have been a misdirection on the part of the trial magistrate even though not explicity.
I therefore allow the appeal, and hereby reduce the sentence to a fine of shs. 2,000/= or three months imprisonment for the first appellant, and shs 4,000/= or six months F imprisonment for the second appellant.  Since it is noted that the fines imposed by the trial court were paid, it is ordered that the appellants should each be paid a refund of the amount paid in excess.
G Appeal allowed.


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