20060714 TZHC Moshi

IN THE HIGH COURT OF TAN/,ANIA

AT MOSTU CRIMINAL 3-SSSION CASE NO. 18 OF 2004 THE REPU3LIC I I ,',

VRS I I I. RAJA3U s/o SENKONDO Date: 14/7/2006 Cora~: F.A.R. Jundu, J. For Republic: Mr. Peter Maugo, State Attorney For Accused: Mr. Shayo, Advocate Accused: present Assessors: 1. Chadiel Fanuel - present 2. Jani Kibacha - present 3. Asha Ally .Kashamba - present c/c:- Muyungi I Information of Murder c/s 196 of the Penal Code is read over and explained to 'I •: the accused person in his own langue~e (Kiswahili) and he is required to plead thereto:- Accused's Plea:- "It is not true" Court:- Entered as a plea of not guilty. F .A .R. JUI'lDU, JUDGE, . 14/7/2006-' Mr. Shayo:- My Lord, I hereby pray to this court and offer to the Republic that the Accused is offering to plead to a lesser offen(;e of :,,anslau:;hter c/s 195 of the Penal Code, if the Republic will have no objection. :Mr. Maugo:- My Lord, the Hepublic has no obj.?ction to the prayer made by the defence counsel. Court:- In that case, let the t,ccused person answer and plea to information of Manslaughter c/s 195 of the Penal Code. Court:- Information of ?JiansJ.au[jhter c/s 195 of the Penal Code is hereby read over and explained to the Accused person in his own lan·~uage {r,:is~.,rahili) and he is required to plead thereto:- ~ccused•s pl_e~- ''I :adnit to have unlawfully killed the said Bahat:i. Mussa not intentionally" . Entered as a plea of f;uilty. F.A.R. JUNDU, JUDG~, 2 - . Mr., Ma1,1go :- My Lord and the Gentlemen

Assessors, this is a manslauehter case where ·. 0 the Accused killed his wife one Bahati d/o Mussa. The incident took place at 1 Vucha'l!a Ndambwe village within Mwa.'1ga. District in Kilimanjaro !{egion on the 6th day of Decembe~, 2001. . ' My Lord, and Gentleman Assessors, it ,ln8 record that as stated by one Hadija Ra.iahu, the daughter of th,e dec~ased, that on the material day, as per her statement recorded on the 10th day of December, 2001 at 16.30 hours at Vuchama Nde.nbwe that . ' . . . i. at around 01 :00 hours that Msanike Ra,jabu aged 7 years wo.ke. up Zainabu Raja.bu and i I Hadija Rajabu and told them that . . poison of coffe pla."lt medicine "KimatileH. - th~i'; mother, that is the deceased had swallowed . They went inside the bedroom and saw their mother., the deceaseq lying on her bed. They were told by their father, that is the ~~ccused, that their mother the deceased had swallowed poison known as "Kimatile 11 • My Lord, and Gentlemen Assessors, according to the state~ent of Hadija Ra,jabu dated 10th December, 2001 a,nd. the state11e:;.t of Mwajuma Mussa there was no any vessel contained the poison which allegedly the deceased had swallowed, Mwajuma Mussa further states that when she went at the scene of the crime .she saw the neck of the deceased w-as strangulated and had finger prints and that the body of the deceased had various bx-uises on the r.ii;ht arm

and right leg. She further stated that.the deceased•F.J c1othes were very dirt and no ·person had touched the deceased•s body until the police and the doctor came for examination. My Lord, as far as the record is concerned the incident. took place in the bedroom where only the deceased, the accused and a child aged 7 years were present. It is a.lso in the state,11ent of one Mohamed Rashid tha,t · t;:ie deceased and the Accused had misunderstandings for sometime whicn' might have led to a squabble while inside t the bedroom between the Accused and the deceased. My Lord, the, Post Mortem r;;xaminatfon ?cport preparP.d by Dr Sat.go of. Usangi Hospital ~..,no examed the body of the deceaGed reveals that the cause of the deceased I s death was due to Fracture of the Curvical Vertebrae with i)-3.maf!;C of Curnical 3pinal Code or in short it is due to breakage of the neck and th~ backbone. My Lord, we pray to tender the said PostMor.tem Examination Rep<:>:rt a.s p,--:irt .of these facts if the defence side has no ob,jection. Mr. Shay.21.- My Lord, we ha.ve no objection. -- Court:- The Post Mortem !~xaininat:ion Report is here'Jy admitted and '.'.l'larkcd as Exhibit :rp1 11 • . li'. A• .R. JTJNDU, ,...r.:J...,, JU.l) .., 14/?/2006 Mr. Maugo:- My Lord, the .:\ccused ·;ta.S arrested on 11/12/2001 and chi.:1.rged with the preser.t information of Manslaur,~hter c/s 195 of the Penal Codee

Tba·t is a.11. ·'0 Court:- Accused, are the facts readover by the Republic true and correct? Do you admit them to be true a.nd correct? Accused: My Lord, I admit the-facts as read.by the :Republic are true and correct. I adm:i.t. that on 6/12/2001 I unla•r1fully killed my wife Baha.ti d/o Mussa at Vuchama Nda.mbwe Villa5e within Mwanga District i!1 I<ilimanjaro 'Region but it was not intentional. ·•-·-·.,. Court:- in my.considered view, the hccused has admitted th,e facts read by the· Republic that they are true and correct without any quaJ_i fication. He· has admitted to have unlawfully killed the deceased .B.ahati d/o Mussa on 6/12/2001 e_t Vuchama Nda11bwe Village within i4wanga .District in Kilimanjaro Region not intentionaly as charge. I find the Accused guilty of Manslau;;hter c/s 195 of the Penal Gode as ' ~ . charged• I hereby convict him 0:1 his own plea of guilty and upon his o;,·.'11 admission of the facts of the case as being true and correct. It is so ordered • .nJDG!~, 14/7/2006 Mr. Maugo:- lily Lord, and the :Jentlemen Assessors, the Republic has no record of previous convictions of the Accused person. My Lord, however, it is clear from i". the plea of the Accu, ,ed that he caused the death of the deceased. 0 This admission 14. is ivoked contrary to the laws of the Country spec:i.fice.lly t'1e Constitution of the A,. . United,,,Republic. My Lord, vArticle 11.1-

of the Constitution states clearly that everybody has a right to live and receive from the Society protection of his life under -the, law. on the premise, every citizen of this CountrJ has the right to ,{i "') t \. ' , ensure another'.~ life_ is not endangered. Failure to do so is to· go against the law. My Lord and gentlemen As~.essors, the f-1.ccused and the deceased lived very long as· a husband and tvife. It is clear that the Accused person was conversant on how.to resolve family issues jud;:ing from experience in his marriage life. Therefore, his failure to take necessary steps, the Accused, therefore took law . . ,',• into h;~ o~ h,at1ds and t.her.eby caused the d.~ath of the deceased, hfs most -aearest person •. My Lord, the hecused lws cgused the ·deceased and his own ·child to live in 1 ' . .: .· hardship life ~o,ne of them lost the love of the deceased, one of them is Msanike :Rajabu who was aged 7. years when their mother the deceased was killed by the Accused. My Lord, the Accused has not been.true in ·his statement recorded at the Poli9e that the cause of the death of the deceased w~s due to poison known: a.a Kima.tile. ' On the premise, we, on the Republic pray that the Ac;cused should be given a hs~.:.h pu."'lishm~nt so as to be a l~sson to otner JJeople in the society a.nd married people who have.the conduct of taking the law into their own ha:pq.s. That ia a.i;J.. F.A.R. JUNDU, J .• - ,.

MI T I G A T I O N S Mr. Shayo:- Hy .Lord• I hereby wioh to present on behalf of the Accused, . the following mitigations so_that this court in considering punishment to impose a lenient one on the Accu:=fed person • .First, My Lord, I pray that you consider and take into account that the Accuaed wheri the charge of.manslaughter was read to him he without causing any inconvenience to this court pleaded guilty to t!le charge at onc·e. Hy Lord, this has saved time of this· court as well as expenses which would have been incurred for asse::;sors, lawyers etc in nny otherwise prolonged trial. My Lord, also the admission shows that he is not a problematic person, he is a whole hea½,tedly person. Secondly, My Lord, I pray that you consider and take into account in your .wisdom that as stated·by the learned State Attorney the Accused person has no record of previous convictions. This means that·the Accused person is a first () offender.· We pray that you seriously consider this•factor. Thirdly, My Lord, you should consider the age of the .l\.ccused person, that he is aged 63 years. It is too advanced age considering the average life of a . • .. ~ .,.., .,J, Tanzanian, the life expe9_t~~7 .., of 50 years. Fourthly, My Lord,· the 1\ccused has been in r~mand for 4 ye;:J.;r.s a:nd six (6) mo::iths.. My Lord, this period of stay though _in ::--er?Jand !l,'1.d not :p.c:Lsoi;i _h?-?

no differen-:e with sta~ling in prison 9.S his freedom was complet(l.:-r ~J;,.miled• My Lord I this period suffices. to be punishrnen.t for :h,~ off:mc<~ ··•--~- has crnmni·tted. Fifthly, My Lord, the Accused regret_e a lot for loaing his wife. · ;·,Jy Lord, it is a sad," matter for him. •rhis lo;ss above suffices as a punis·,1rnent on the Accused person. Sixthly, I ·pray that you consider and take into- acc.ount that the Accused has . .;. a family of ~ight (B) children depending on him. Since the deceased L· no more, th0 fe.rnily dependt, on the Accused p.-H'3on co,npletely. He also 1:le ha!"l children of hi,; t·.,•o lab~ brothers d8pendi.nrr an hirn_. These are Godson :~nsLid who and his wife . . .! T .~ .f -Who · di~lf'and left three children. The l'.>ther one is Abc.1.si i<ashidi F.md his wife who left six (6) children. He has also another late brother one Hussein -~"H.1hici who· left three children. My Lord, you should consider the fate of these' c.~~hanawho clearly need the assistance ·of the deceased. My I,orct,· we pray' that you consider in appropriat~ puni.;.bment not nece13sarly custodial. My Lord, the- factors that I have stated need your wisdom and deep assist·ance. I pray that the punishm_ent to be considered should not be onetbat shall make those· who de:pet1d on h:i.m suffer. It should allow .them to._ ·get his· aseistDnce. despite the. dee.th ·of the

deceased. My I,ord, my brother the 'learned ·2,tate A-ttorne,y hao raj_sed constitutional .....~ • matters; but I wish-to remand him that where their i~ a specific law or !ict, it is the one to be used $nd not the constitution. 0 _My Lord, if it pleases you, you should consider be period he has stayed in prison · and now has saved the time of this court, you should not impose.a ha,;sh punishment as' used by the Republic becaw3e .J...i it is a le6son he has to subjected. .: (;t, He has already leant a lee:,son ·for that purpose. That is all. F .A.H. Jl.JN.DU, JUDGf, 11+/7/2006 SENTENCE: The Accused was initially charged with Murder c/s 196 of the Penal Code. 'l'he particulars were that on 6/12/2001 at Vuchama Ndambwe Village in Mwan~a District · in Kilimanjaro Region, the Accused murdered the deceased on~ ?,ahc:1.ti Mussa, who was his wife. However, tte Accused later on offered and the Rep-ublicconceded to plead· B-uilty to a les'.'>er offe:1.ce of Mansl&ui~hter c/s 195 of the_ Penal Gode. He so pleaded, I :fo1md him p;Hilt.y cf the s,lid offenceand_ I convicted. him on his own pJ.ea and on ad:dssion of the facts of ·the ca.se a,;; being correct. I a.~ now ret.~uired to consider and impose an ar,prop:::·iate punish:nen.t on the i'-1.ccused ::Jerson. I have heard_ the· submission of Mr. Ma1igo, the learned State Attorney •.-:ho has pr~tyed to this court tu im_po;;:,e a haps}1

punishment on the A.ccused person to save as a lesson to other people in the societ;t who take law irito own h;:mds. I have also heard the vu:rious mi·tigation factors wr1ich Jv:r. Shayo, t:,e learned counsel - for the Acctrned person has raised in orde:!.· for this court to consider a le1~ient punishmlmt -to be :..::1posed on the ;l.ccused pe:rson. First, I have considered and taken into account thE:.t aG ,~tated by tile Rept!blic, the f\CCUi,d has no ·record of previous convictions. r,:3 stated by Mr. shayo, the i' Accused is th,'"'!r,~:fore a first offend.er.·' It is weJ.l estab:?.ished :princ:i_ple of ' to imposing appropriate punish~ent on Accur;ed ::)er-sons. '."-;econdly, I have considered a!1d taken. into account that 0::hen the ch?-rge of -:nanslau :,;hter ,_,.,...r.l.s nead over to the .Accu::;ed I,;erson he read.illy and at once pleaderi guilty to it• .Indeed t as Mr. Sha.yo ~a:,, ste.t'rd 9 in doin½ so I the Accu,;ed hat> ,=;o.ved . t 1me o:r- t' . cour _.... 111 ·.ins . any o t'ner.w1se ·• t . \ p1'6'.iOrtge~1 :"I- . . 1 :i.nvo. . .r.ia . 1 vin;} . . many 1-Jltr:.~snes. Ir1 doing so, he haa alst'.) saved expenses hich would hiwe been incurred for assc,ssor.s, •111 lawyers etc if the tri.al was to proceed fulJ.y. .t herefo!'e, the :i ccus,~d per<Jon has 11 not caused any inconvenience to this court • .I ' Thirdly, 1 have considered and taken into -~ccou·nt 1 the

a:1e of ·the P1ccw~ed per.son. :le is ageci 63 yec-1rs a.ccordin.; to M:r. ::;:1ay,,, ·.rhis l;,; an .... dvancs:d · t,..?e on his · part considerinG the life. ex.pec~ncy of an ol'dihary 11.'anzanian 1<11!1.ich ?1ir. Shayo ha.s put it at an a.vera.ge of 50 years~ Fourthly, J. h;;nre co:1siderec and taken into account that the ,\ccused has been in remand since 11/12/2001 o It is a period of four anti ha).f ye:;;.rs todate. In.deed., this is a(! length time for an accu,~ed person. to wait for trial date of' his case. 6 .. ; -;, In so staying, his freedom is completely marginalised. Mr. Shayo says that is ;~ has no difference with staying in prison for a fully convicted accused person. Fifthly, I have ·considered and taken into ·account that the Accused person is a family person. He has ei,i;ht child1~en depending on him and a nurr.ber- of other children pepending on_him from his deceased brothers and their wives who badly ·need his assistance. Sixt:1ly, I have considered and taken into a,ccount that tbe Accused person ha.s _expressed regret as stated qy Mr. Shayo. This perhaps can be deduced from his act ofI at once and guickly pleading guilty to the charge of manslaughter whe11 the sa-ne was read .to him. Indeed, he has suffe.red loss of his beJ.o.ved wife. However, on the othe,r hand, he is the caune of the death of the said beloved wife. He ou;~ht not to have taken the law

into hb O\~'il hands and l~d to the said death. Mr. Maugo 1 the learned State Attorney has called upon: this court based on C) ,~ . his submission to impose a harsh punishment on the Accused person to be a lesoon to other members of the society on similar behaviour and those on married life with same behaviour. He has also referred me to the ri[;ht of life for an individual which is prol:~cted by the Constitution. Ho~,iever, r-'ir. Shayo has remanded him that _,-,here there is a specific statute, the revert to the Constitution is uncalled fore However, ·,vhat I have to agree is that the .Accused person had no -justification to take the law into his o\fm hands and thereby causing the death of the deceased. i I I. Mr. Shayo, has gallantly tried to J>Ursuade this court based on the various mitiga.tion factors to impose a lenient a...".ld beneficial sentences to the Accµsed person. ·' Having considered and taken into account all the above. matters, I arn still convinced that the Accused person deserves a custodial sentence to meet justice ,i; ". , · of this case. I hereby senfonce the ,\ccused person to four (4) years "- .. imprisonment. It is so ordered. JUiY3E, 14/7/2006