final sentence KENEDY EPAFRA MINJA Tanzlii

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MOSHI AT MOSHI CRIMINAL SESSIONS CASE NO. 37870 OF 2023 THE REPUBLIC VER SUS KENNEDY EPAFRA MINJA RULING ON SENTENCE 7th & 8th November, 2024 A.P. KILIMI, J.: Kennedy Epafra Minja the accused person stands charged before this court for the offence of murder contrary to section 196 and 197 of the Penal Code Cap. 16 R.E 2022 “the Penal Code”. He pleaded not guilty for this offence. However, before the prosecution proceeded, the learned counsel for the accused Mr. Emanuel Karia informed this court that, the accused person was ready to plea for the lesser offence of Manslaughter. The Republic through the service of Ms. Amina Dotto Mkayala and Ms. Bora Mfinanga had no objection on Mr. Karia’s prayer. Consequently, the leading prosecutor prayed to amend the charge and filed the information for Manslaughter contrary to section 195 1 and 198 of the Penal Code Cap 16 R.E 2022 which alleges that on 17th day of May, 2023 at Mbeya City Bar area Himo within the District of Moshi in Kilimanjaro Region, did unlawful cause the death of one Deogratius s/o Abel Lyimo. The accused pleaded guilty. Furthermore, the facts constituting the offence charged were read over to the accused person who admitted all facts to be true and correct. Subsequently, the prosecution tendered 14 exhibits which also were not objected by the accused person, those exhibits are as follows; Post-Mortem Examination Report (Exhibit PE1), Sketch Map of the Scene of Crime Exhibit PE2, Certificate of Seizure (Exhibit PE3), Four Handling Over Certificates (Collectively Exhibit PE4), Exhibits Register-PF16 (Exhibit PE5), Ballistic Examination Report (Exhibit PE6), Extra Judicial Statement of Accused (Exhibit PE7), Caution Statement of Accused person (Exhibit PE8), One Browing Pistol Caliber 7.65mm Serial No. A513977 and TZCAR 96709 (Exhibit PE9), Nine Live Ammunitions (collectively as Exhibit PE10), Two Spent Cartridges from Forensic (Admitted collectively as Exhibit PE11), One Spent Bullet that was found in the deceased Body (Exhibit PE12), Two Bullets from Ballistics’ Trial (Collectively admitted as Exhibit 2 PE13), And Fire arm license with Registration number 00096709 issued by Central Arm Registration Police Headquarters Dar es salaam (Exhibit PE14). Following his own plea, this court convicted the accused person for the offence of Manslaughter contrary to section 195 and 198 of the Penal Code. Having convicted the accused person, this court invited both counsels to address the court on factors to be considered during sentencing. Ms. Amina Mkayala learned State Attorney prayed for the accused person to be punished and sentenced according to the law. She submitted that the accused person used firearm which caused severe pain and death to the victim who was still young. She requested the court to forfeit a Pistol and ammunitions which are exhibit PE9 and PE10. She further stated that the accused should be barred from owning firearm. Mr. Emanuel Karia prayed for lenient sentence or a conditional discharge for the accused with the following reasons. That the accused was the first offender but also pleaded guilty thus saving precious time of this court. He added that the accused person showed cooperation to the police 3 as he surrendered to the RCO office after the incident and went with police officers who drew a sketch map at the crime scene. He submitted further that the deceased was not healthy as he previously underwent surgery from chest to his urinary bladder. Further he said that the accused has an 88- year-old father who is dependent on him. Lastly the counsel submitted that the offence was committed while he was defending himself after he sensed that he was in danger. I have considered the aggravating factors and mitigation above, in the outset the provisions which the accused is charged with, Section 195 of the penal Code provides for the offence of Manslaughter while section 198 of the Penal Code provides for the punishment for the offence of murder. For ease reference the said provisions provides that; “195.-(1) Any person who by an unlawful act or omission causes the death of another person is guilty of manslaughter. (2) Any unlawful omission is an omission amounting to culpable negligence to discharge a duty tending to the preservation of life or health, whether the omission is or is not accompanied by an intention to cause death or bodily harm. 4 198.-Any person who commits manslaughter is liable to imprisonment for life.” From the above provisions, the sentence for the offence of Manslaughter is life imprisonment; however as per the Tanzania Sentencing Guidelines for Judicial officers 2023 “sentence guidelines” this is a maximum sentence but the same may be lowered up to the absolute discharge depending on the level of manslaughter. (see page 37 of sentence guideline). There are factors the court may consider when passing sentence for the offence of Manslaughter, to mention a few are the weapon used, the force applied and nature and gravity of the offence or harm to the deceased. In determining the sentence level to be imposed to the accused person, it is undisputed facts that the deceased who was a passenger on the motorcycle commonly known as ‘bodaboda’ was in a highway, the accused herein who was the driver of a motor vehicle drove recklessly almost causing accident to the deceased. The deceased then dropped out from his motor vehicle and followed the accused person whereon fracas and confrontation ignited, the accused therefore went to his motor vehicle 5 and took a gun (Exh.PE9) and shoot the deceased. The autopsy was conducted and the cause of death as per the postmortem report was hemorrhage due to gunshot wound. Therefore, in the case at hand the accused person used a gun to shoot the deceased. In that regard I am settled that the accused used unreasonable force by using a gun to defend himself while deceased was unarmed. Now in view thereof according to the sentence guidelines this offence falls under the High- level rank of manslaughter since the accused person used a dangerous weapon (Exh. PE9). The same attract a range of minimum sentence of ten (10) years imprisonment as a starting point as the lowest whereas the maximum sentence is life imprisonment. Therefore, I have considered the circumstances of the case at hand on how the incident occurred, I have also considered that the accused person is the first offender, but also, I have taken into account the accused plea of guilty to the information and as rightly submitted by Mr. karia that by his plea, he saved the court's time and costs. (See Charles Mashimbo vs Republic (2005) TLR 90 and Swalehe Ndungajikungu vs Republic (2005) TLR 94). In conclusion, I am of considered view the starting point 6 which is ten (10) years imprisonment will serve the purpose and justice of this matter. Therefore, the starting point of sentence to the accused person is ten (10) years, subsequently being the first offender who has pleaded guilty is entitled to a guilty plea discount of one third (1/3) to the sentence of 10 years, thus remains with six (6) years and eight (8) months. Moreover, the accused person is subject to the reduction of the period he has spent in custody. According to the record of Moshi District Court at Moshi which are available in committal proceeding, the accused person was arraigned in that court on 6th June, 2023, therefore until today is almost one (1) year and five (5) months of being in remand custody., Thus after a reduction of the same for the time spent in remand, there are five (5) years and three (3) months remaining. (See Augustino Mponda vs Republic (1991) TLR 97). 7 For that reason, the accused person shall serve an imprisonment sentence of 5 years and 3 months for the offence of Manslaughter under section 195 and 198 of the Penal Code [Cap 16 R.E 2022]. It is so ordered. DATED at MOSHI this 08th Day of November, 2024. X JUDGE Signed by: A. P. KILIMI Order: In respect to the prayer by the prosecution of forfeiting the accused person’s firearm and licence, I have considered the circumstances of the commission of the charged offence, I order the said One Browing Pistol Caliber 7.65MM with Serial NO. A513977 and TZCAR 96709 (exhibit PE9); Nine Live Ammunitions collectively a (exhibit PE10); And a Firearm licence with registration number 00096709 (exhibit PE14) be handled in writing to the Police Custody, then after the accused person has completed his sentence above, and is in need of repossession of 8 the same, he should make application to the Registrar of Firearms, who shall exercise his powers under section 8 (2)(b)(d) and 26 of The Firearms and Ammunition Control Act 2015 Chapter 223 of the laws, and thereafter shall make an order to the same forthwith. Sgd; A. P. KILIMI JUDGE 8/11/2024 Court: Ruling delivered today on 8th day of November, 2024 in the presence Ms. Amina Dotto Mkayala and Ms. Bora Mfinanga learned State Attorneys for the Republic, and Mr. Emmanuel Karia for the accused person, also accused person present. Sgd; A. P. KILIMI JUDGE 8/11/2024 Court: Right of Appeal against the sentence explained. Sgd; A. P. KILIMI JUDGE 08/11/2024 9