Criminal Session Case No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MTWARA

AT MTWARA CRIMINAL SESSION CASE NO. 8 OF 2023

THE REPUBLIC

VERSUS

SAID HAJI NGAMILA

JUDGMENT 3d & 13th March, 2025 MPAZE, J.: There are moments in life when fate takes an unexpected turn, leaving behind pain and unanswered questions. Rashid Ally Mkumba (PW1) had no idea that on 14th April, 2022 would be the last day he would see his beloved wife Mwajuma Ally Lipala (the deceased). As they walked together to their farm that day, they were unaware of the tragedy that lay ahead. Upon arriving at the farm, each focused on his tasks. PW1 left his wife tending to the farm while he went into the nearby bush to gather sticks for making a bed in their small hut. However, when he returned, i his wife was nowhere to be found. He searched for her everywhere, but in vain. Growing increasingly worried, he reported the matter to the village authorities. With the help of fellow villagers, they embarked on an extensive search. It wasn't until 16th April, 2022 that they made a gruesome discovery the body of Mwajuma Ally Lipala had been buried outside the house of Said Haji Ngamila, the accused (DW1) in this case. The body had been mutilated; the head and legs were missing. At that time, DW1 was not at home. After the necessary procedures of the police and medical examination were completed, the family was allowed to collect the remains for burial. According to Benedicta Mashiba Daudi (PW4), a medical doctor who examined the body of the deceased, the cause of death was

excessive blood loss, which led to cardiac failure, she tendered the Post Mortem Report which was admitted and marked as Exhibit Pl. The hunt for the murderer continued. However, according to DW1, after some time in hiding, he decided to surrender himself to the village authorities. He was later handed over to the police, who, after concluding 2 their investigations, arraigned him in court on a charge of murdering Mwajuma Ally Lipala on 14th April, 2022. When the charge was read to him and explained in a language he understood, he responded; 'Mimi ni kweii kabisa niiimua Mwajuma Aliy Lipala, huyu ni mwanamke aiiyekuwa ananitaka mimi kimapenzi.' In his defence, DW1 claimed that Mwajuma went to his house carrying a munduand accused him of being involved with other women. In anger, she allegedly grabbed his private parts while still holding the mundu. Feeling threatened, he reached for a spear he kept in the house for protection against wild animals. In a moment of panic, he stabbed her. Shocked by what had happened, he did not know what to do next. Realizing the gravity of the situation, he decided to bury the body. He dug a hole, placed her inside, and covered it with soil. Later, when he attempted to move the body and found it too heavy, he dismembered it to make transportation easier. He buried the torso outside his house and took the head and legs to the forest, where he

buried them in a shallow pit. 3 Fearing the consequences of his actions, he went into hiding in a cave. Eventually, he confessed to his father and later sought help from some herders, who directed him to the village chairman. The chairman took him to a health center for safekeeping, where he was later arrested by the police. At the station, he admitted to the crime and cooperated by leading officers to the locations where he had buried the body parts. However, he insisted that he had not intended to kill Mwajuma, arguing that it was a case of a lovers' quarrel that spiraled out of control. Since this is a murder charge against the accused, the prosecution had the duty to prove that; 1. Death occurred, 2. The death was unnatural, and 3. The person responsible for the death was none other than the accused, who acted with malice aforethought. Based on the evidence provided, it is an undisputed fact that Mwajuma Ally Lipala is deceased and that her death was unnatural. The post-mortem report, along with witness testimonies including that of the accused (DW1) confirms that the cause of death resulted from severe physical harm, including the severance of her head and limbs. These facts 4 establish beyond doubt that the deceased's death was violent and unnatural. Furthermore, considering both the prosecution's evidence and the defence put forth by DW1, there is no dispute that the

person responsible for Mwajuma Ally Lipala's murder is none other than DW1. Although there was no direct eyewitness to the killing, the circumstantial evidence provided by Haji Abdallah Ngamila (PW3), the father of the accused, is highly incriminating. PW3 informed the court that on the day the deceased was last seen, the accused was also absent from his residence. When PW3 visited his son's home, he noticed unusual disturbances, including freshly dug ground and a hole. He promptly reported the matter to the police, who later accompanied him to the site. Upon excavation, the deceased's body was discovered buried there. Additionally, prosecution witnesses, including the deceased's husband (PW1), Kelvin Kelvin Msuha (PW2), who is the Ward Executive Officer (14W) of Barikwa village, and the Doctor (PW4), all confirmed witnessing the exhumation of the deceased's body from outside the accused's house. 5 When this evidence is examined in conjunction with DWl's own defence, it is clear that no one else but DW1 who committed this murder. The key issue for determination is whether DW1 committed the murder with malice aforethought. Under section 200 of the Penal Code [Cap 16 R.E. 2022] (the Penal Code), the prosecution bears the burden of proving malice aforethought by establishing any of the circumstances outlined therein. Section 200 provides that; '200. Malice aforethought shall be

deemed to be established by evidence proving any one or more of the following circumstances- (a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not; (b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although that knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; (c) an intent to commit an offence punishable with a penalty which is graver than imprisonment for three years; (d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit an offence.' 6 From the above, it is clear that malice aforethought may be direct or indirect, depending on the circumstances of each case. It may also be inferred where the act causing death was carried out with the intention to kill or inflict grievous harm. In Republic v. Tubere s/o Ochen [1945] 12 EACA 63, the Court established that malice aforethought can be inferred by considering; '...the nature of the weapon used in causing death, the number of injuries inflicted upon the victim, the part of the body where such injury was inflicted, the manner in which the weapon was

used, and the conduct of the accused before, during and after the attack. See also the case of Enock Kipela v. R (Criminal Appeal No. 150 of 1994) [1999] TZCA 7 (10 June 1999). In the instant case, the prosecution provided compelling evidence proving that DW1 acted with malice aforethought. The manner in which the crime was executed clearly demonstrates a premeditated and deliberate intent to cause death. DW1 used a spear to stab the deceased before proceeding to sever her head and limbs with an axe an act that undeniably exhibits an intention to kill. Further, DWl's post-offence conduct reinforces this conclusion. His own admission that he took time to dismember the body, buried some 7 parts separately, and disposed of others in the forest negates any claim of a spontaneous or impulsive act. Instead, it indicates a calculated effort to conceal the crime. Additionally, DW1 had ample opportunity to reconsider his actions but chose to persist in dismembering and disposing of the body. His subsequent flight from the scene and attempts to evade arrest further indicate a consciousness of guilt and premeditation. These factors, when considered cumulatively, establish beyond reasonable doubt that DW1 acted with malice aforethought, thereby satisfying the legal threshold under section 200 (b) of the Penal Code. In his defence, DW1, while admitting having killed Mwajuma Ally Lipata,

alleged that the deceased had threatened him by pulling his cords while holding a mundu and uttering threats. He thereby suggested that his actions were in self-defence. However, the law on self-defence requires that the response to an attack be both necessary and proportionate to the threat faced. This principle is enshrined in section 18B(1) of the Penal Code, which states; 8 'In exercising the right of self-defence or in defence of another or in defence ofproperty, a person shall be entitled to use only such reasonable force as may be necessary for that defence. Despite DWl's claim, I find that his response stabbing the deceased with a spear was excessive and grossly disproportionate to any alleged threat posed. There was no clear evidence demonstrating that his life was in imminent danger to justify such an extreme response. The law does not justify the use of disproportionate force, especially when there is a possibility of retreat or a less lethal means of neutralizing the threat. Moreover, even if DW1 had acted in self-defence initially, his subsequent actions negate this claim. After the deceased was incapacitated, DW1 proceeded to dismember her body an act that is entirely inconsistent with the defence of self-defence. Such conduct demonstrates an intent to conceal the crime rather than a reaction to an immediate threat. In Palmer v. R [1971] AC 814, the Court

emphasized that self- defence must be reasonable and necessary in the circumstances. Similarly, in Beckford v. R [1988] AC 130, the Privy Council reiterated that a person may only use force that is proportionate to the danger faced. 9 Applying this principle to the present case, it is evident that DWl's actions went far beyond what is legally permissible under self-defence. Accordingly, the plea of self-defence is untenable and cannot stand in the face of the overwhelming evidence demonstrating excessive use of force and post-offence conduct inconsistent with self-preservation. Beyond the defence of self-defence, a closer examination of DWl's version of events suggests that he is also attempting to rely on the defence of provocation. He alleged that the deceased persistently pursued him for a relationship and, on the day of the incident, physically grabbed him while holding a weapon, thereby provoking his reaction. Under section 202 of the Penal Code, for provocation to serve as a valid defence, the accused must have been provoked to the extent that he lost self-control and acted in the heat of passion without premeditation. The law further requires that the provocation must be so grave that it would cause an ordinary person to lose self-control and act rashly without rational thought. For provocation to be successfully invoked, two key elements must be satisfied; 10 1. There must have been a sudden and temporary loss of self-control, meaning the accused reacted immediately without the chance to reflect.

2. The response must be proportional to the provocation, meaning it should not exceed what an ordinary person would do under similar circumstances. Even if it were accepted that the deceased's actions were provocative, DWl's response stabbing her with a spear and later mutilating her body by severing her head and limbs was manifestly excessive and went far beyond what could be excused as a reaction in the heat of passion. Moreover, the nature of the weapons used, the number of injuries inflicted, and his post-offence conduct, including the calculated burial and disposal of the remains, indicate deliberate and premeditated actions rather than a spontaneous and uncontrollable reaction. Looking at DWl's actions, particularly the excessive force used and the attempt to conceal the crime, it is evident that there was no genuine and immediate loss of self-control. His conduct was neither impulsive nor proportional to the alleged provocation. 11 Consequently, the defence of provocation is untenable and cannot be sustained in the circumstances of this case. Weighing DWl's defence against the evidence presented by the prosecution, it is my considered view that DW1, with malice aforethought, inflicted fatal injuries on the deceased following a deliberate and intentional act. The prosecution has successfully established, beyond reasonable doubt, the following essential elements of the offence of murder; 1. That the deceased died an unnatural death as a result of the injuries inflicted, which were unlawfully caused by DW1.

2. That the death of the deceased was the direct and immediate consequence ofDWl's actions.

3. That DW1 acted with malice aforethought, as evidenced by the nature of the weapons used, the severity of the injuries inflicted, and his post-offence conduct, which included the concealment of the body. The circumstances surrounding the offence, including the excessive force applied, the multiple stab wounds, and the mutilation of the deceased's body, negate any claim of self-defence or provocation. Instead, they point to a deliberate and unlawful killing. 12 Accordingly, I find that the prosecution has discharged its burden of proving the charge of murder against DW1 beyond any reasonable doubt. I, therefore, find the Said Haji Ngamila guilty as charged and convict him under sections 196 and 197 of the Penal Code [Cap 16 R.E. 2022]. It is so ordered. Dated at Mtwara this 13th March, 2025. M.B Mpaze Judge

SENTENCE Having convicted Said Haji Ngamila, the next step is sentencing. Unlike other offences where the court has discretion to impose a lesser punishment, in this case, my hands are tied, as I have no authority to impose any alternative sentence other than the one prescribed under Section 197 of the Penal Code. Accordingly, I hereby sentence Said Haji Ngamila to suffer death by hanging until he dies. M.B Mpaze Judge 13/3/2025 13 Court: Right of appeal fully explained as per section 323 of the Criminal Procedure Act, Cap 20 R.E 2022. M.B Mpaze Judge 13/3/2025 today in the presence of Mr. Jordan Odhiambo, Mr. Hillary Hamza Mr. Majaliwa Sebastian, State Attorneys, Mr. Emmanuel Ngongi Advocate for the accused and the accused. M.B Mpaze Judge 13/3/2025 14