Court name
Court of Appeal of Tanzania

Yohana Balicheko vs Republic () [1988] TZCA 13 (28 July 1988);

Law report citations
1994 TLR 5 (TZCA)
Media neutral citation
[1988] TZCA 13

Kisanga JA: delivered the following considered judgment of the court:: This appeal arises from the decision of Mr S N Kaji, Principal Resident Magistrate exercising extended jurisdiction, in which he H convicted the appellant for manslaughter and sentenced him to ten years' imprisonment. The appellant had been charged with murder, but at the conclusion of a full trial the learned Principal Resident Magistrate found him guilty only of the lesser offence of manslaughter and proceeded to sentence him as above. The appeal is against sentence only.
It is important to set out, although very briefly, the background of this matter. The appellant was the husband of the deceased. The two had been husband and wife for quite some time and had had I

A seven children between them, five of whom are living. The deceased was given to heavy drinking, and this appears to be the source of the appellant's quarrel with her on many occasions. On the day of the incident the deceased returned home at night from a drinking spree; she was drunk. She had B been away for a considerable time leaving the young children at home unattended and without food. Upon her return home the appellant beat her up severely, using a stick, by way of punishment for disobeying his orders to stop drinking. In the course of such beating he inflicted on her what the medical witness described as `huge wound on the head' involving a depressed fracture of the skull C and a raptured main artery which caused intracranial haemorrhage leading to her death.
In passing the sentence the learned Principal Resident Magistrate duly took into account a number of mitigating factors nearly all of which had been put forward by the appellant. This is what he said,
D `The accused is 41 years old. He is a first offender. He has been in remand for about four years. He was very highly provoked by the misconduct of his wife (the deceased). It was only too bad that he used excessive force.
He is hereby sentenced to 10 (ten) years imprisonment.'
E Mr Rugarabamu the learned advocate who argued this appeal submitted that the sentence was manifestly excessive and urged us to reduce it. Counsel took the view that the severity of the sentence meeted out was out of proportion to the seriousness of the assaults inflicted. In this F connection he referred us to the case of R v Wilson Munsha (1), cited by Brian Slattery in his book titled A Handbook on Sentencingat 56. The relevant law report was not available in the Mwanza High Court Library and so we had to rely on what the learned author said. According to him the court in G that case held that:
`One criterion in deciding whether a case of manslaughter calls for a substantial sentence is to ask oneself whether if the injuries inflicted had not turned to be fatal, any charge, or any serious charge would have been brought against H the accused. If the answer is no, then only a light sentence is called for. If the answer is yes, a substantial sentence is called for.'
The thrust of Mr Rugarabamu's submission was that the circumstances of the present case involved I a purely domestic affair in which the appellant was chastising his wife for some family miscon-

duct, and in which death was not reasonably foreseeable. In those circumstances, counsel argued, A the appellant was really punished not for the dangerousness of his assaults on the deceased but rather for the gravity of the consequences of such assaults, namely, the resultant death which was not reasonably foreseen; and that was wrong. B
In further support of the submission that the sentence was manifestly excessive Mr Rugarabamu again referred us to a decision of the High Court in the case of R v Lukanfubila (2) in which the accused had raped a young girl aged about 10 years following which the victim bled profusely for several days and eventually died. The accused was convicted of manslaughter and sentenced to C only five years' imprisonment. Thus Mr Rugarabamu's point is that by comparison, the sentence of ten years' imprisonment in the present case was manifestly excessive.
Mr Swai, the learned State Attorney appearing for the respondent Republic resisted the appeal and D submitted that the sentence was not manifestly excessive, especially bearing in mind that the maximum punishment for manslaughter is life imprisonment. Referring to the decision of this Court in the case of Silvanus Leonard Nguruwe v R (3), he submitted that the circumstances in the present case do not warrant interference by this Court. E
As a general rule this Court will not readily interfere with a sentence imposed by the High Court. As observed in Nguruwe's case cited above, we would not interfere merely because we think that if we had tried the case ourselves we might have imposed a somewhat different sentence. This court will F interfere only in limited circumstances including where we are satisfied that the sentence was manifestly excessive or that the sentencing court failed to consider a material circumstance or that it misdirected itself in some particular or that it otherwise erred in principle. Mr Rugarabamu's main G contention is that in assessing the sentence, the trial court proceeded on a wrong principle in that it sought to punish the appellant not for his assaults on the deceased but rather for the consequences of such assaults which consequences were not reasonably foreseeable. But with due respect to the learned counsel, the facts of the case do not support this argument. There was overwhelming H evidence that the appellant assaulted the deceased viciously. He repeatedly assaulted her that night using a weapon, namely, a stick. He renewed the assaults on the following morning. During these assaults the deceased suffered great pain, cried bitterly and pleaded for mercy requesting the I appellant not to kill

A her but in vain. Even when neighbours tried to intervene, he repelled them and inflicted a vicious assault on one of them (PW3) which sent him to the ground causing him to break his watch. These were clearly vicious and merciless assaults on a defenceless woman. Among the visible injuries B inflicted on the deceased during the assaults was a huge wound on the head involving a depressed fracture of the skull. Obviously that was a serious injury. Thus it seems plain that the appellant was duly punished for his vicious, merciless and dangerous assaults, and for the serious injuries he inflicted on the deceased. Indeed the court had a duty to impose heavy punishment to meet the C gravity of such vicious and ruthless conduct of the appellant. Viewed in that light, therefore, it becomes difficult to sustain Mr Rugarabamu'ssubmission that the appellant was punished merely for the consequences of his assaults rather than for the dangerousness of those assaults.
D Mr Rugarabamu also referred to one mitigating factor or circumstance which the appellant had raised and filed as an additional ground of appeal namely, that the deceased left behind five children who it is his duty now to look after. The appellant did raise that matter before the sentencing court, E but in passing sentence the court made no reference to it. It is not clear whether the court overlooked it or whether it had it in mind but thought that it was not material. To give the benefit of that doubt to the appellant, we proceed on the basis that it overlooked it. However, it seems unlikely that had the court duly considered that circumstance, it would have come to a different conclusion, having regard F to the viciousness and the dangerousness of the appellant's assaults on the deceased.
Looking at the case as a whole, it can be said with some justification that this was a bad case of manslaughter, verging on murder itself. When the deceased repeatedly cried bitterly saying that the G appellant was killing her and pleaded for mercy but the appellant continued to assault her with the stick that night and renewed the assaults on the following morning, that was very close to establishing malice aforethought on the part of the appellant. For, at least it must have been apparent H to him that the assaults were dangerous to the life of the defenceless woman. In all the circumstances of the case we think that the sentence of 10 years' imprisonment, although on the heavy side, was not so manifestly excessive as to warrant interference by this Court. In the result the I appeal is dismissed.

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