Kulwa Salu & 3 others v. Republic, Cr app no 189 of 2005 (murder case)

IN THE COURT OF APPEAL OF TANZANIA

AT MWANZA

(CORAM:   LUBUVA, J.A., MROSO, J.A., And RUTAKANGWA, J.A.)

CRIMINAL APPEAL NO. 189 OF 2005

1.  KULWA  S/O SALU         

2.  SALU  S/O LUSANGIJA   ...………...….… APPELLANTS

3.  ANTHONY  S/O  ELIAS  

4.  LUPIGA  S/O MWANDU 

VERSUS

     THE REPUBLIC ……….……..……………….…. RESPONDENT

(Appeal from the conviction and sentence of the High

Court of Tanzania at Tabora)

(Mziray, J.)

dated the 28^th day of July, 2005

in

Criminal Sessions Case No. 4 of 2004

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JUDGMENT OF THE COURT

15 March & 12 June 2007

LUBUVA, J.A.:

        In the High Court sitting at Tabora, the appellants, Kulwa s/o Salu, Salu s/o Lusangija, Anthony Elias and Lupiga Mwandu were charged on three counts with the murder of three deceased persons.

        At their trial, when the charge was read out, the appellants unequivocally pleaded guilty to the offence of manslaughter contrary to section 195 of the Penal Code.  The High Court (Mziray, J.) convicted them of manslaughter and were sentenced to a term of twelve years imprisonment.  They are dissatisfied with the sentence imposed and hence they have preferred this appeal against sentence only.

        Before dealing with the substantial ground of appeal, it is desirable to set out briefly the background giving rise to the case. The three deceased persons, Iddi Mzee, Mohamed Moshi and Salu Mohamed Hamdani were brothers living at Isenga Village, Uyui District within Tabora Region.  On 2/7/2003, the second appellant who was riding a bicycle met on the way the three deceased persons who, it is alleged attempted to rob him of the bicycle.  He raised an alarm and the deceased persons were arrested by members of “Sungusungu”  including the appellants.  The deceased were taken to a river  nearby where they were tortured to death.  The bodies of the deceased were tied up with ropes and then were dumped into the river.   The appellants were arrested and charged in court as indicated earlier.

        Mr. Banturaki, learned counsel, represented the appellants in this appeal.  He filed the following one ground of appeal:

That the sentence of twelve years imprisonment which was imposed on the appellants was manifestly execessive (sic) in view of the circumstances of this case.

Mr. Banturaki urged the Court to reduce the sentence on account of the following reasons.  That in view of the circumstances of the case, the sentence of twelve years imposed was manifestly excessive.  In the first place, the deceased were trying to rob the second appellant of his bicycle.  Second, that by pushing the deceased into the water in the river, the appellants intended to extract information from the deceased and not to cause death.  Had this aspect been considered, Mr. Banturaki submitted that the trial court would have found that a lesser sentence was deserved.  He referred the Court to its decision in Francis Titus Mwacha v. Republic (1990) TLR 88, Valerian Said v. Republic (1990) TLR 86 and Ogalu s/o Owoura v. R (1954) 21 EACA 270.  Mr. Banturaki argued that if in Francis Titus Mwacha (supra), a case of manslaughter involving the chastising of a child, the Court reduced the sentence of 20 years imprisonment to three years, the Court should similarly find the sentence imposed in this case manifestly excessive.  In the case of Ogalu s/o Owaura (supra) a case in which the appellants were charged with armed robbery, the sentence was reduced to twelve years imprisonment, he urged the Court to exercise a similar sense of leniency.  Asked by the Court, Mr. Banturaki suggested a term of six (6) years imprisonment as reasonable in the circumstances of the case.

        For the respondent Republic, Mr. Rweyongeza, learned State Attorney appeared.  Resisting the appeal he said in the circumstances of the case the sentence was not manifestly excessive.  If the deceased had only attempted to steal the bicycle from the second appellant, why did the appellants take the deceased to the river and not to the police station, Mr. Rweyongeza asked.  Worse still, the State Attorney further submitted, why torture the deceased to the extent of causing brain damage if the intention was to extract information?  After all, Mr. Rweyongeza concluded, there is no law which allows Sungusungu to torture suspects in order to extract information.  He urged the Court not to interfere with the sentence imposed

        The issue for consideration is whether the sentence is so manifestly excessive as to warrant interference by the Court in the sentence imposed by the trial court.  The underlying principle for consideration when the Court of Appeal can interfere with the discretion exercised by a trial court in matters of sentence has consistently been underscored by the erstwhile Court of Appeal for Eastern Africa and this Court as well.  In R. v. Mohamed Ali Jamal,  (1948) 15 EACA 126 the Court of Appeal for Eastern Africa stated:

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.

Three years later, the same Court had this to say in James s/o Yoram v. R. (1951) 18 EACA 147:

A Court of Appeal will not ordinarily interfere with the discretion exercised by a trial judge in a matter of sentence unless it is evident that he has acted upon some wrong principle or overlooked some material factor.

This Court also reiterated this principle in Bernadeta Paul v. R. (1992) TLR 97.

        In this case, it is clear from the record that the learned trial judge took into account the mitigating factors which were advanced by counsel in favour of the appellants.  However, as the learned judge observed, Sungusungu are bound to discharge their duties in accordance with the law.  Here, they went beyond the bounds of the law by torturing the deceased to death and then dumping their bodies into the river instead of handing them over to the police.  This case, to say the least, was a serious case of manslaughter in which the appellants in a high handed manner cruelly tortured the deceased to death.  Its circumstances are such that we are satisfied that the sentence was neither illegal, manifestly excessive nor was it based on improper facts or consideration.

        In the event, we find no merit in the appeal which is dismissed in its entirety.

        DATED at DAR ES SALAAM this  16^th  day of April, 2007.

D.Z. LUBUVA

JUSTICE OF APPEAL

J.A. MROSO

JUSTICE OF APPEAL

E.M.K. RUTAKANGWA

JUSTICE OF APPEAL

I certify that this is a true copy of the original.

( S.M. RUMANYIKA )

DEPUTY REGISTRAR