Katiti, J.: On the 29/1/1990, one Katiba Umege the complainant, was expecting a consignment of beer from Arusha, by use of Scania lorry TZ 51559. When it finally D arrived, the count of crates of beer revealed that two crates of beer, worth Shs. 13,000/= had been consumed to finish, the empty bottles bearing witness to the said same consumption. Guarding the said beer crates from Arusha was Lubaga Senga, the E appellant herein. This Lubaga Senga, admitted to have drank some of the same to quench his thirst, and to have charitably dished some to some passengers.
The appellant was therefore charged, under section 269 (c) of the Penal Code Cap. 16. He pleaded unequivocally guilty, and hence the conviction on his own plea of guilty. He F was sentenced to five years imprisonment, subject to confirmation. The appellant is now appealing against sentence, contending that the sentence was excessive.
The learned Senior State Attorney Mr. Kaduri, appearing for the Republic, did concede G that considering the circumstances of this case, the sentence of five years imprisonment, was on the high side. It has to be recalled, that the offence carries, the maximum sentence of ten years imprisonment, and that if five years imprisonment is imposed the hue and cry against the same, would expectedly be less. But every Hsentencing process cannot and should not, unless a statutory minimum sentence is being administered avoid individualization of the offence, and the circumstances of the offender, otherwise the whole exercise, becomes mechanical. In this case, the appellant admitted guilt, a factor speaking mitigatingly in favour of him. He was a first offender, a I factor eloquently praying for lenience in favour of the appellant, and to still add, the appellant
contritely begging pardon, and promising to pay, could not have left mercy without a A smile. The appellant said in mitigation:
I only pray for pardon, some people fooled me in dishing out the beer. I promise to pay back the value of the beer, I stole i.e. Shs. 13,000/=. I will raise it. B
If the sense of mercy, can still stand smile - less, as a statue of granite, in the face of such a plea, I do not know, under what circumstances, would mercy be moved in favour of the pleader. I am of the considered view, that the appellant was in the C circumstances entitled to more lenient treatment, than he was accorded. In the circumstances, I am allowing his appeal, and making such order as will result in his immediate release, unless, he is otherwise legaly held. D