Republic vs Alex Manyanza

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUM BAWAN GA DISTRICT REGISTRY ATSUMBAWANGA CRIMINAL JURISDICTION SITTING AT MPANDA CRIMINAL SESSION NO. 34 OF 2017 REPUBLIC w, Wv : % VERSUS. 1. ALEX S/O MANYANZA ©ENOCKPETER 2. NOGELE S/O MALIGANYA KAHINDI © HAMBOHAMBO 3. GALILAS/O NKUBAWmALAGO 4. SHILE S/O JICaL^ @ SHILE EMMANUEL DALUSHI 1RULX&G FOR SENTENCING MWEMEM^ZI, > % The accused persons haYe been found guilty and convicted with the offence of attempted .murder contrary to section 211(a) and (b) of the Penal Code, [Cap 16 of the laws]. It was alleged that on the 14th day of March, 2015, at King'anda-Mawiti Village within Miele District in Katavi Region the convicts stormed into the house of the victim, where she was sleeping with her children in the middle i of the night and chopped off her right hand. According to the facts, the victim is person with albinism and they were hired to look for and bring body parts of an albino to the witch doctor. The facts show that there was a consideration of Tshs. 6,000,000/= promised to be paid to the accused persons/ convicts in this rulinq and an advance of Tsfe .2,500,000/= had to In order to reinforce her point, the learned counsel referred to the acts committed and termed them as barbaric and added that it seems the accused persons intended that she won't have necessary help from the neighbors as they locked doors of the neighboring houses from outside. 2 Thus, the neighbors and other relatives were locked in the houses preventing them to respond to the alarms made by the victim. On their part, the defence attorneys focused on the facts that the accused persons were first offenders, had family responsibilities varied depending on % the size of their respective families in terms of numbeitgf wives, children, and whether their parents are present on not \®but^xclffiing the^age of the said parents, all of whom are dependent pn them. ^Tfitneyta.lso alluded to the fact that the accused persons hah blen ln remand' and later imprisoned for over 9 years from the time?they were attested W this day. In general, they were inviting this court thatrshouldrconsider the time spend by the % '% accused persons In rlftiandWjhe agejpf the accused persons was also referred to as^?a mitigatingyfactor, asking for a lenient sentence. The argument was that if .released they would qualify to be a reliable workforce w 'MM- W&, for thwiation so that they produce for themselves and will be able to w w enhance the nation^ economy. The key points or factors in this case which have most been emphasized are time spent in prison, in that the accused persons or convicts have stayed in remand and prison for over 9 years and 11 months and that today they have 3 pleaded guilty to the charges thereby saving resources in terms of time and money. In a bid to avoid re-inventing the will/1 have checked around various decision to see if I can borrow something and come out of the problem facing me. In the case of the Republic Vs. Halid s/o Anord andBimenyimana s/o Festo, Criminal Session Case No. 118 of 2020, Hi|Jligurt at Tagzania sitting at Bukoba (Tanzilii) my learned brother HoihE.L. NBwana^fehierd that: - "There is no doubt thatthe maximumsenterice for the offence of Attenridted Murder issTfe imprisonment, f&i however, sectional l(a)ofthePenai Code, uses the word "Hable"iimeaning- the: court. has discretion to impose a ft lesser sentence depending on the circumstances of each B case XX In the referred caseihaving considered the circumstances of the case where the convicts were young but had invaded and cut the throat the victim using a sharp knife, the trial Judge considered the acts not being tolerable and imposed a sentence of ten (10) years imprisonment while observing thatthe convicts being young persons and energetic would have directed their minds 4 and energy towards good deeds. This, however, was a fresh case which in a way lays the foundation for me to move ahead. In revisiting the facts in the present case, the accused persons, who are now convicts, succumbed to the enticement of the witch doctor and accepted payment to look for a person with a condition of albihism and chop off the hand of the victim. That part of the body will be taken to the witch doctor for his business activities. It is an illegal and^arbaricacWhe?accused were conviction was quashed anappeal dhjthe reasons of illegality of proceedings gK w. 'W and an order for retrial issued. ,The; present trial is a compliance to that w % w order. .« KtSw? -4^ W- W In another casdjpphfcaya Vs. The Republic, Criminal Appeal No. 198 of 2007(unreported), the Court of Appeal of Tanzania encountered an almost w 'w similarsituation asjto the present one, where the appellant had already . % KB served eight (8) years in prison. The conviction and sentence were found to be procedurally illegal but there was evidence enough to secure conviction, The court had to consider whether to order for retrial or not considering the 5 period the convict had stayed in prison, 8 years. The Court of Appeal of Tanzania refrained from ordering retrial and held that: - ’We would have remitted the record to the High Court for a retrial but considering the 8 years that the appellant has already spent in prison, we do not think thaty it is the Mik- interest ofjustice to do so in this case^jp^^ "w.. j In the case of Agnes Julius Vs. The Republic, Criminal Appeal No. 188 of 2010, Court of Appeal of Tanzaniaat Mwanza;the-Courtof Appeal held that: , I _ fifes, ■ taken/ntoaccounfmoresowhen an F^guilty fromjthe-yegy beginning, as was the case in this matter^^pscourt in Kitinda Simila @ Ng'waninana IB Vfe The Republic, Criminal Appeal No. 15 of 2008 (unreported) making reference to Nyanzale Madaha Vs. The Republic, Criminal Appeal No. 135 of 2005 stated that failure to take into account the time that an accused (who has all along been admitting his offence) has spent 6 in remand custody would amount to unduly punishing a remorseful accused on account of the weaknesses in our criminaljustice system" In the present situation, the accused person committed the offence which in nature is grave. The charges were placed on thei^and they were convicted until recently, the Court of Appeal ofuTanzania quash|d,the conviction and set aside the sentence. However, theBhavWdlndn remand ~ ......, n .. H w I faced a similar situation inThis case. AsJ have .referred to the cases above, W . W. time spent in prisonmustbe taken into consideration while sentencing the offender. It is also^evident from the record the convicts in this case are first .Mk 4k offenders, the fact which has been appraised by both the prosecution and the defence. They fia^ families dependent oh them and the second convict w- A w is said to be sick though that fact was not substantiated. The counsel, Mr. a ■ ■ Sweetbert Mkupilo, learned advocate clarified that the second accuse has never attended to the hospital. Thus, he lacks documents to verify his allegations. Ms. Hongera Malifimbo, learned advocate prayed for punishment to be meted taking into consideration that the victim was made handcap 7 impairing her ability to take care her farming activities, her only sure means of survival. She prayed for compensation to be provided for. The latter however will maintain connectivity of the accused with the victim and possibly aggravate bad relationship taking into consideration the convicts have been in prison for nine years and they had no means of earning money and possibly their belonging are scattered. They will therefore be unable to comply with the order immediately after their release. Under the circumstances, in consideration the time spent by the convicts in the prison and remand, together- with other factors raised by both prosecution and defence, J have the opinion the convicts have learned their lessons for the time spend in prison. I therefore find that 9 years and 11 months in prison, is a punishment enough for the offence they committed. I therefore order for their immediate release from remand unless they are Kg W 7 otherwise lawfully being held. .. . It is ordered accordingly. T.M. Mwenempazi Judge 16/04/2024 8