VALERIAN SAIL v REPUBLIC 1990 TLR 86 (CA)

 

VALERIAN SAIL v REPUBLIC 1990 TLR 86 (CA)

Court Court of Appeal of Tanzania - Arusha

Judge Kisanga JJA, Ramadhani JJA and Mnzavas JJA

H 2 August, 1990

Flynote

Criminal Law - Provocation - Grave provocation - Mitigating factor in manslaughter

cases.

-Headnote

I The appellant, Valerian Sail, was convicted on his own plea of guilty to

manslaughter. He inflicted death to his brother-in-law at a drinking party

1990 TLR p87

KISANGA JJA, RAMADHANI JJA AND MNZAVAS JJA

when he intervened to restrain the deceased who had become troublesome and

started to fight other people. A

In sentencing the appellant to 9 years imprisonment the learned trial judge stated that

courts should not show lenience to persons who kill following excessive drinking. On

appeal,

Held: (i) The deceased's behaviour obviously amounted to grave provocation which

should have warranted the B exercise of leniency in sentencing the appellant for

killing the deceased;

(ii) considering the mitigating factor and all the circumstances of the case, the

sentence of 9 years, imprisonment was manifestly excessive. C

Case Information

Appeal partly allowed.

Mono for the respondent.

[zJDz]Judgment

Kisanga, Ramadhani and Mnzavas, JJ.A.: The appellant was convicted on his own plea

of guilty to D manslaughter and sentenced to 9 years' imprisonment. He is now

appealing against the sentence only.

The facts as adduced by the prosecution and admitted by the appellant were as

follows: The appellant and the E deceased were brother-in-law. On the day of the

incident they were at a pombe shop drinking and both of them became drunk. The

deceased became troublesome and started to fight other people. The appellant

intervened to restrain him but he turned on him and fought him as well, causing him

to fall to the ground. Before the appellant could get up, the deceased pounced on him,

whereupon the appellant gave him a kick in the stomach which sent F him to the

ground leaving him injured. He was taken to hospital where he died of a ruptured

spleen.

In passing the sentence the learned judge stated that the courts should not show

leniency to persons who kill G following excessive drinking. But as the facts show,

the appellant did not kill because of excessive drinking on his part. Although he was

drunk, he behaved responsibly by intervening to restrain the deceased who was

disturbing the peace. When he was thus performing this lawful and noble duty, the

deceased took offence and attacked him. H That obviously amounted to grave

provocation which in our view should have warranted the exercise of leniency in

sentencing the appellant for killing the deceased on the account.

The other factors pleaded in mitigation were that the appellant, in occasioning the

death, administered only one kick on the deceased, and it may be added that he did

not use any weapon. He readily I

1990 TLR p88

A pleaded guilty to the charge. He was remorseful and the deceased was his

brother-in-law. He was a first offender and had been in remand since 1987.

At first Mr. J.D. Mono, the learned Senior State Attorney appearing for the Republic,

took the view that although B the sentence was on the heavy side, it was not

manifestly excessive so as to warrant interference by this Court. On reflection,

however, he conceded and changed his mind; and like him, we are of the view that

considering the mitigating factors as outlined above, and considering all the

circumstances of the case, the sentence of 9 years' C imprisonment was manifestly

excessive. In the circumstances we feel justified to interfere. That sentence is reduced

to a term of imprisonment which will result into the appellant' s immediate release

from prison unless he is held there on some other lawful ground. The appeal is

allowed to that extent.

D Appeal allowed in part.

1990 TLR p88

E