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
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.
E
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