Mtenga, J.: The appellant Salum s/o Shabani was convicted on his own unequivocal plea of C guilty to one count under the Traffic Act, 1973 that is to say, using a motor vehicle on the public road with the load greater than the load capacity declared by the manufacturers of its chassis contrary to sections 39(2) (3) and D (5) of the Road Traffic Act, No.30 of 1973. He was sentenced to three months jail. He is now appealing against such sentence.
In his memorandum of appeal the appellant complains that he was not given an option of a sentence of fine.
The facts of the case disclosed that the appellant was a bus conductor of "Super Star Bus Service" which E operates from Dar es Salaam to Morogoro and on the date in question, he was arrested carrying more passengers than the bus is licensed to carry in that he carried 35 passengers in excess. The relevant sub-section under which the appellant was charged reads: F
(2) No motor vehicle or trailer shall be used on a road with a load greater than the load capacity declared by the manufacturers of the chassis of the motor vehicle or trailer or greater than the load capacity determine under the provisions of this Act. G
At first glance, I had the opinion that "load" as provided in the above stated subsection of the Act does not include "a passenger" because a passenger as defined in "The Concise Oxford Dictionary" is a person travelling in public conveyance by land or water or air. However, this problem appears to be solved by subsection 4 of section 39 of the Traffic Act. This relevant sub-section provides: H
For the purposes of subsections (2) and (3) of this section, persons travelling on a motor vehicle or trailer shall be deemed to be part of the load. IA
Accordingly, the charge has properly been laid against the appellant.
As I stated above the appellant is complaining against the sentence in that he was not given an option of a A sentence of fine. The penalty subsection under which the appellant was charged provides:
(5) Any person who uses on a road a motor vehicle or trailer in contravention of the provisions of subsections (1) (2) B or (3) shall be guilty of an offence and shall be liable, on first conviction to a fine not exceeding twenty thousand shillings and on a second conviction, to a fine not exceeding thirty thousand shillings and on a third or subsequent conviction, to a fine not exceeding fifty thousand shillings or, in each case, to a term of imprisonment not exceeding three years or to both such fine and such imprisonment. C
I understand that the task of sentencing is a very difficult one though admittedly, it is a discretionary task. A magistrate or judge who decides what sentence to impose against a convicted person has to exercise that D discretion judicially. There are a number of factors that the court has to consider before passing a sentence such as gravity of the offence, prevalence of the offence, the interest of society, the penalty section under which the accused is charged and last but not least, the record of the accused person. E
In the instant case, the relevant penalty subsection has provided for a fine or imprisonment as a penalty for carrying a load greater than the load capacity declared by the manufacturers of the chassis of the motor vehicle. This is an option given by the Legislature, which therefore means that in imposing a sentence, the court must F ascertain that a sentence of fine should first be imposed and in default of payment of such fine, then a sentence of imprisonment can be given. I hasten to add here that in imposing a sentence of fine the court must ascertain that the fine can be paid rather than impose a fine which cannot be paid and as a result the accused goes to jail. In Mohamed Juma v Rex. 1 T.L.R. 257, Wilson J. held: G
That though severe sentences may be justifiable for certain offences under liquor laws, the fines imposed in such cases should bear a reasonable relation to the accused's power to pay taking all his circumstances into account and should not be such as to render illusory the option of a fine specifically granted by the Legislature in the case of a first conviction H under the liquor laws.
In another case, Nyakulima d/o Chacha v R. 1 T.L.R. 341 Mohan, J. observed: I
The principle is that a fine should be one which an accused person can reasonably be expected to pay.
Mohan, J. also observed in R. v Bison s/o Mwanga 11 T.L.R. that before imposing a fine the court should A make some enquiries of the financial standing of the accused and the result of this should form part of the record.
In the case of Samwel Mwendamane v R.  H.C.D. n. 457 Saidi, J. as he then was expressed the view B that an accused person should not be fined more than one third of his monthly income and I entirely agree with him.
In the instant case, as I stated above, the appellant was not given his right of option of a sentence of fine as C stipulated by legislature in the subsection of the Act quoted above. This in my view is wrong and I hold that the trial magistrate did not exercise his discretion judicially in sentencing the appellant. Even the learned State Attorney for the Republic one Mrs. Shiyo did not support the sentence imposed against the appellant and she D referred me to a case of R. v. Juma Mrisho  H.C.D. no. 61. In that case Bramble J. as he then was held:
Where the legislature has given an alternative of a fine for certain minor offences it would seem more appropriate to inflict this type of punishment rather than peremptory imprisonment. Of course, where there is a continuous flagrant disregard for the law, imprisonment would be the only answer. E
In the instant case, the appellant is a first offender and in his mitigation, he told the lower court that the passengers F in excess were stranded and he helped them without charging them any fare. We all know that nowadays there is a shortage of transport facilities and I believe the appellant acted through sympathy by carrying more passengers than he was permitted to carry and under the circumstances a sentence of fine could be appropriate.
Accordingly this appeal against the sentence is allowed and I set aside the sentence imposed against the appellant G and since the appellant has been in jail from 10th May, 1982 up to date - a period of almost one month, I feel that this period of imprisonment he has already served is sufficient for the offence committed and no useful purpose will be served by substituting a sentence of fine. As a result, I order his immediate release from custody unless he is held there for any other lawful cause.