REPUBLIC VERSUS ERNEST JUMA PIMA JUDGMENT

IN THE HIGH COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA (ORIGINAL JURISDICTION) CRIMINAL SESSIONS CASE NO. 99 OF 2023 THE REPUBLIC VERSUS ERNEST S/O JUMA PIMA ------------------- JUDGMENT Date of last Order: 16/10/2024 Date of the Judgment: 01/ 11/ 2024 LONGOPA, J. The accused person one Ernest Juma Pima stood charged of the offence of Murder contrary to Section 196 and 197 of the Penal Code, Cap 16 R.E.2022. It was alleged that on 24th day of February 2023, at Darajani Msagali Village within Mpwapwa District in Dodoma Region one Ernest Juma Pima did Murder one Fikiri S/O Mwanika Sirikale. Throughout the accused person denied the commission of the offence of Murder thus the Prosecution had to rally a total of six (6) 1|Page witnesses and three documentary exhibits while the defence had only one witness, the accused person himself. In course of hearing of the criminal session, the Prosecution was led by Ms. Magreth Bilal, Linda Mbaga and Sara Anesius, learned State Attorney while the defence enjoyed the legal services of Mr. Robert Owino, Advocate. One Yared Chamiaga was the first to testify (PW 1) by stating that on 24/02/2023, at 21:00, he was at local club/Pombe shop where he went to have meat. It was his evidence that he saw one Ernest Juma Pima calling one Fikiri and the duo went away for some 15 paces. He never heard anything on contents of the discussion but later heard Fikiri Sirikale shouting for help. It was PW 1 assertion that Ernest Juma Pima did stab the deceased with a knife at the abdomen, thus the deceased fell down while the accused threw the knife and ran away. It was PW 1 testimony that there was electricity light at the scene of crime and the distance was about fifteen steps. PW 1 stated to have taken the victim to Mpwapwa Hospital. However, the victim was referred to Dodoma Regional Referral Hospital where he succumbed to death with four wounds. In cross -examination, PW 1 stated the accused and the deceased came out of the local Pombe Shop on that fateful night and saw them only 2|Page when the fight ensued though he does not know if the fight began in the local club/Pombe shop as the duo came out from that local Pombe shop. It was PW 1’s evidence that he had not described where the electricity light was fixed at that scene of crime, nor the number of electricity tube lights/bulbs in that local bar. PW 1 stated that he does not know if the deceased and accused had any conflict and todate he does not know reasons behind the accused killing the deceased on that fateful date. PW 1 stated further that he cannot recall if there was moonlight and did not state source of light for him to have identified the wounds in the victim’s body. It was stated that the place had a big live tree, big in size to accommodate the three business lots and there were possibilities that tree branches reduced the ability of lighting at the area. It was PW 1 that he only saw the accused stabbing the victim but never knew where the knife originated from. It was his evidence that he did not state features of that very knife. The Prosecution also called Maduma Mlewa Sirikale as PW 2. PW 2 stated that on 24/02/2023 at 21:00 hours, while in his shop he heard a call for help from Fikiri Sirikale who told him to have been stabbed by a knife by one Ernest Juma Pima and he was holding the abdomen. PW 2 stated that have sat the victim down, covered up his wounds by clothing from his shop as the victim was bleeding seriously and went there alone. 3|Page According to PW 2, he took the victim to Mpwapwa District Hospital having obtained a PF 3 from the Police Station. On arrival at the hospital, it was found that there were wounds at the shoulder and waist which could be attended to at the District Hospital while a wound at abdomen was not possible to be stitched thus a referral to Dodoma Regional Referral Hospital was issued and the victim succumbed to death on 26/02/2023. PW 2 stated that the victim on Mr. Fikiri Sirikale told him that there was a fight with Ernest that resulted into being stabbed. The victim had wound at the abdomen as the intestine was out. PW 2 stated that distance from the shop to local Pombe shop bar is almost 35 steps. It was PW 2 evidence that the local Pombe shop has a door on the North and a big tree where there is business of selling meat is conducted. The Pombe shop has electricity with two bulbs on the Northern part, one is behind the house. The deceased informed PW 2 that stabbing happened outside at the Pombe shop on Western side. During cross-examination, PW 2 stated that the deceased went to his shop alone and he was only informed by the deceased that there was a fight that resulted into the victim being stabbed at the waist, one on the abdomen and another at shoulder. PW 2 stated that he has no evidence on the type of the bulb to be big enough to light the whole area. He reiterated that he believes that it is the fight that led to death of the deceased. 4|Page The third witness (PW 3) was Majenda Mwanika Sirikale who testified that on 28/02/2023 visited Dodoma Regional Referral Hospital to collect the body of the deceased called Fikiri Sirikale and witnessed the Postmortem examination of the body being conducted. It was PW 3 evidence that there were for wounds one at the shoulder, two at the waist and one on the abdomen resulting from knife stab. He only heard that it was Ernest Juma Pima who stabbed the deceased. When cross-examined PW 3 reiterated that he heard from Yared Shati that victim was stabbed by a knife and Mr. Ernest Juma Pima is not a troublesome person as PW 3 has never heard about any bad behaviour. The fourth prosecution witness (PW 4) was Dr. Simon George Chiteto who testified that on 28/02/2023 he conducted a Postmortem examination of the body of one Fikiri Mwanika Sirikale. It was PW 4 evidence that physical examination of the body revealed that there were wounds at abdomen, two wounds at the waist and one wound at the arm. According to PW 4, the wounds were caused by sharp object, while the abdominal wound was the most serious one thus death was due to shock resulting from the injury. It was PW 4 testimony that sizes of the wounds were different and the abdomen wound had estimation of 4 centimeters. PW 4 stated to have filled in the Post mortem examination report, signed and gave it the police officer. PW 4 tendered the same as Exhibit P1. 5|Page During the cross-examination, PW 4 stated he conducted Postmortem examination physically without using any medical facilities to measure the width and depth of injury thus came up with general conclusion that hypovolemic shock was the cause of death. According to PW 4, it was not possible that death was caused by any other thing apart from the injury and all other wounds had very little impact on cause of death except that in the abdomen. PW 4 reiterated that the cause of death was hypovolemic shock caused by injury of internal organs. The wounds were four in total in the abdomen, two at waist and one on the hand/arm. The wound at the abdomen had 4 centimeters and they appeared to be caused by sharp object. Another witness for the Prosecution was Debora Michael Mnyabahi as PW 5. PW 5 stated that on 01/03/2023 at 11:00 hours while at her duty station at Primary Court Mpwapwa Town, one Ernest Juma Pima was brought before her for making extra judicial statement. It was PW 5 testimony that the accused person was fully informed of all his rights before recording his statement. According to PW 5 on physical observation of the body of the accused, he had bruises at the back of the body and wounds on the right hand that appeared to be from the sharp object and that the accused stated the bruises to have originated from a fight with the deceased and 6|Page that the wound resulted from a knife that case from the deceased and in course of fighting while trying to rescue oneself he was injured. According to PW 5, the accused person narrated the confession willing that in course of fighting with the victim he did stab the deceased by a knife that the victim was holding. The extrajudicial statement was tendered, admitted and marked as Exhibit P. 2. In cross -examination, PW 5 stated that the accused went on his own free will to record extra judicial statement and that all contents in Exhibit P 2 reflect the truth recorded from the accused person who informed Justice of Peace the fight and personally the Justice of Peace saw fresh wounds and bruises on the accused ‘s body. The Prosecution called PW 6: E. 9168 D/SGT George who testified to the effect that on 25/02/2023, he was assigned to handle a matter that happened at Majengo Hamlet, Darajani village in Mpwapwa whereby on arrival at the scene of crime he drew a sketch map of the scene of crime led by John Sirikale Seje and Maduma. PW 6 stated that the circumstances reveal that there is a road, a TANESCO electric pole, a tree where the residents use for selling meat and there is Pombe shop. The distance between the tree and the pombe shop is not known. The distance from the scene to the Pombe shop is around 15 meters. The pombe shop has a door at Northern part there were two bulbs with 12 wats. The other bulb is on the Eastern part. We left the scene of 7|Page crime to police station after drawing sketch map. I was told the suspect was Ernest Juma Pima. We continued to look for the accused, we got information that on 26/02/2023 that injured person succumbed to death. It was PW 6 that on 28/02/2023, he went to Dodoma Regional Referral Hospital for postmortem examination where he saw the deceased’s body with wounds on the abdomen, on waist, the right shoulder. It was PW 6 testimony that on 29/02/2023 he got the information that accused was in police custody having surrenders willingly. It was his testimony that the accused admitted to have injured Fikiri using a knife and agreed to go to the justice of peace for extra judicial statement recording. It was PW 6 that he had recorded the cautioned statement outside the time limitation thus the same was not tendered save for the sketch map of the scene of crime date 25/02/2023 is admitted and marked Exhibit P 3. It was PW 6 that he took the accused to the Justice of peace to record the extra judicial statement and it was PW 6 discovery that the accused had malice aforethought to cause death of the deceased as he stabbed him four times. In cross examination, PW 6 stated that the accused stands charges with murder and that though he was not at the scene of crime but the evidence collected revealed that it is murder case. Further, PW 6 stated that he did not state the cause of the fight and that there is no 29/02/2023 8|Page in the calendar which he alleged that accused was recorded cautioned statement thus it might have been mistakenly recording of the date. According to PW 6, the person who led him to draw a Sketch Map was not at the scene of crime when the incident happened and it appeared to have been told by Yared. It was his evidence that it was Yared took the injured person to hospital as he is the one who went to Mpwapwa police station to take the PF. 3 to take the injured/deceased to hospital. According to PW 6, the sharp object that was used to stab the deceased was a knife which PW 6 stated to have not informed the court as to who is the owner, no description of the same, never tendered it. It was PW 6 evidence that he did not state the distance that a bulb can light. PW 6 stated that the distance of 15 meters are not the same as 15 steps and that three steps cannot be equal to 7 meters. The defence case had only one witness namely DW 1: Ernest Juma Pima stated that he has never committed murder at all and that if a death occurred then it was not done with intention to cause death thus there was no malice aforethought. DW 1 stated that there was a fight incident happened on 24/02/2023 at Majengo Hamlet in Darajani village within Mpwapwa District at a local Pombe shop where he went around 18:00 hours. It was DW 1 testimony that continued to drink until 20:45hours when one Fikiri Sirikale appeared hold a stick on his right hand and the victim took the drink from the 9|Page accused by force. When the accused asked the victim the reasons for snatching the drink forcefully made the deceased threw the container with local brew thus the same was poured down. According to DW 1, it was at this juncture that he informed other that it would appear that Fikiri Sirikale had intention of fighting thus the accused decided to leave. Before the accused any movement, he was attacked by a stick on his back, when he turned back to find the assailant he was attacked/beaten for the second time by the deceased. It was DW 1 that on the third time, he was to catch the stick used to attack him, a scuffle ensued and the deceased took a knife and threw it to accused cutting the accused arm on the right hand. As a result of struggling to hold the knife both the accused and victim fell down and the accused got hold of the knife that stabbed the victim on the abdomen. It was at this juncture when the victim called for help, the accused dropped the knife and ran away. It is DW 1 testimony that the knife belonged to the victim/deceased. According to DW 1, the accused slept at the forest on that day as he was drunk and early in the morning he went to see the victim at the hospital and assisted the family of the victim with treatment costs whereas he secured TZS 300,000/= from Tizo Jenga that he handed over to Mlewa Sirikale, Salome Sirikale and wife of victim to assist in the treatment of the victim. 10 | P a g e It was DW 1 evidence that he reported at the District Police Station of Mpwapwa District on 25/02/2023 he voluntarily surrendered oneself. It was his evidence that stabbed the deceased/victim only once and he does not remember if the victim was stabbed at any other place as we had struggling to get hold of the knife for sometimes. It was his testimony that in course of struggle the victim might have been cut in other places. It was his prayer before this court to set him free as he did not cause the death of victim intentionally. In cross examination, DW 1 stated that he had not committed murder as the stab was only accidental and it was once. It was DW 1 testimony that there was struggle between the accused and the deceased thus possibility to have cause wounds. I understand that the wounds were caused by sharp object for the abdomen wound only. It is the victim who started beating and attacking the accused at Pombe shop and that DW 1 arrived and reported to police station Mpwapwa District on 25/02/2023 around 13:00hours and that he had recorded extra judicial statement on account of all what happened on that material date. DW 1 emphasized that he was drunk and the victim was continuing to attack him thus he had to ran to avoid further confrontations as the victim had commenced the fight by attacking the accused with the stick and then knife. It was in course of the fight and in course of defending 11 | P a g e oneself then the knife stabbed the victim. It was DW 1 testimony that he willing handed over to Police station personally on 25/02/2023 as the incident happened on 24/02/2023 which was a night before. Having heard both parties, this Court dispassionately considered the evidence of both parties to find out whether there is proof of the commission of the offence of Murder for which the accused stands charged. I must restate from the commencement that proof of the offence of Murder contrary to section 196 and 197 of the Penal Code, Cap 16 R.E. 2022, the m prosecution must prove that all the ingredients of the offence are met. These elements are that there must be unlawful death of the victim, such death must be associated with unlawful act or omission of the accused and that there must exist malice aforethought. These were articulated in the case of Ibrahim Abubakar & Others vs Republic (Criminal Appeal No. 147 of 2022) [2024] TZCA 752 (16 August 2024) (TANZLII), at page 23, the Court insisted that: With respect to criminal cases, such burden rests on the shoulders of the prosecution and the standard of proof is beyond reasonable doubt. This entails the establishment of existence of all ingredients constituting the offence charged. In the case of murder which is the subject of the instant appeal, such proof would entail leading in evidence 12 | P a g e to prove that by the appellants' unlawful act or omission the deceased lost his life. Such acts or omission must have been clothed with malice aforethought. The evidence on record reveals that death of Fikiri Sirikale was not natural. It was accelerated by action of another person as he was stabbed in various parts of the body. The testimonies of PW 1, PW 2, PW 3, and PW 4 provide to the effect that the victim succumbed to death due to wounds sustained from being stabbed by sharp object. Exhibit P.1 which is the Postmortem report summed it all. It lucidly stated that death of the victim was due to hypovolemic shock resulting from wounds. The death of One Fikiri Sirikale was undisputedly not natural as the death was caused by the action of someone who inflicted stabs that wounded the deceased to the extent of causing severe bleeding that led to death. As the cause of death of the deceased in this case is not dispute that it was unnatural, the main aspect before this Court is whether available evidence links the accused to have caused the death of the victim in the circumstances. It was the evidence of PW 1 that he saw the accused person while committing the offence of murder at around 21:00 hours on 24/ 02/2023. According to PW 1 there was electricity in that area which allowed him to clearly see the incident. However, evidence of PW 1 has limitations. First, PW 1 stated that accused and deceased went on the western side of the Pombe shop which is some 15 steps from the tree. This 13 | P a g e is a side that had no electric bulb as the same are on northern and southern parts of the building. Second, PW 1 stated to have taken the victim to hospital via the police station where PF 3 was collected. Third, he never heard anything in conversation between the accused and victim but saw the knife while thrown. Fourth, there was a big tree between the Pombe shop and the scene of crime which had possibility of reducing the lighting in that area. This was the only alleged eye-witness at the scene of crime who testified in this Court. This evidence might fell short to dispel the possibility of mistaken identity. The intensity of the light was not categorically adduced by this alleged eye -witness. The guiding principle on visual identification was reiterated recently in the case of Abel Orua @ Matiku & Others vs Republic (Criminal Appeal No. 441 of 2020) [2024] TZCA 78 (21 February 2024) (TANZLII), at pages 14-15, where the Court of Appeal stated that: We would, firstly, restate the settled position on visual identification evidence that, where conviction has to be found on visual identification, such evidence must be subjected to deep scrutiny to ascertain that the identification was really positive and that all reasonable possibilities of mistaken identification are eliminated. See- Kenedy Owino Onyachi and 2 Others v. Republic, Criminal Appeal No. 48 of 2006 (unreported). 14 | P a g e Reliance on visual identification evidence is thus conditional. As we have alluded to above, for such evidence to be relied upon it must pass the test enunciated in the case of Waziri Amani v. Republic [1980] T.L.R. 250 and expounded in other subsequent decisions of the Court including the decision in the case of Alfredy Kwezi @ Alfonce v. Republic, Criminal Appeal No. 216 of 2021 (unreported) where the Court stated that: "...before a court can found conviction basing on visual identification, such evidence must be watertight so as to remove the possibility of honesty but mistaken identity. In such cases the court is required to consider, among others, the following matters; one, the time the witness had the accused under observation; two, the distance at he observed him, three, the conditions in which such observation occurred, for instance whether it was day time or night time, whether there was good or poor lighting at the scene; four, whether the witness knew or had seen the accused before or not; and five, all factors on identification considered, it should be also be plain that were any material impediment or discrepancies affecting the correct identification of the accused person by the witness". 15 | P a g e There is no doubt that the incident happened at night around 21:00 hours and the accused and victim went westwards of the Pombe shop where there is no or little light. This is attributed to several factors. One, none of the witness testified on existence of electric bulb on western side which was direction of the duo. Second, existence of big tree which hinders the vision. There is nothing on record regarding the intensity of light at the scene of crime, time spent by the witness in observing the incidence, as well as distance from where the duo stood to witness in question. PW 1 could not hear anything in the conversation between the accused and victim thus it was not a close distance. It is my considered opinion that there were no positive factors for identification. This was the principle in Yassin Hamisi Ally @ Big vs Republic (Criminal Appeal No. 254 of 2013) [2016] TZCA 746 (5 February 2016) (TANZLII), at pages 9-10, the Court observed that: The law on visual identification evidence in this country is well settled. Such evidence is of the weakest character and in a case depending for its determination essentially on identification, be of a single witness or more than one witness, that evidence must be watertight, even if it is evidence of recognition as was the case here. On what in law should be construed as watertight evidence, this Court in NHEMBO V. R., Criminal Appeal No. 33 of 2005 had this 16 | P a g e to say:- “In law,... for evidence to be watertight, it must be relevant to the fact or facts in issue, admissible, credible, plausible, cogent and convincing as to leave no room for a reasonable doubt.” In the instant case, there was only a single purported eye-witness, PW 1. He never described the modalities of identification, the lucid description of the accused person, and the intensity of lighting. All the identification of the accused person in court was a dock identification which in law is no identification at all. The evidence of PW 1 is therefore so weak regarding proper identification of the accused person. As such, there was no identification of the accused person at the scene of crime. Further, the evidence of prosecution is weak, contradictory and hearsay evidence. PW 1 stated that he is the one who witnesses the incident, took the victim to Mpwapwa District Hospital upon collecting the PF 3. Also, the distance from the Pombe shop was only 15 steps. This is contradicted by evidence of PW 2 who stated categorically that while in his shop which is distant from the scene of crime, the victim went there alone while holding the abdominal part of body informing PW 2 that he was stabbed in course of a fight. It was the evidence of PW 2 that he is the one who had to fold the bleeding part of the victim’s body, took the victim to hospital and collected PF 3 from the Police Station. According to PW 2, there was no PW 1 at all that time. 17 | P a g e PW 6’s testimony on distance from the scene of crime to Pombe shop is also different from that stated by PW 1. It was PW 6 evidence that the distance is 15 metres which is not equivalent to 15 steps which is shorter than that PW 6 measured. It can be noted evidence of PW 3 and PW 6 stated they were informed by PW 1 that it is the accused who stabbed the victim. Thus, the alleged direct and eye -witness of PW 1 lacks credence. Indeed, exhibit P 3 was prepared based on hearsay. There is no witness of the Prosecution who testified about presence of one John Sirikale Seje at the scene of crime on fateful day. However, it is this person who led the Police office to draw sketch map in absence of the victim’s body at the scene. It is doubtful what guided the Police officer to identify the scene of crime. This contradictory nature of the prosecution’s evidence particularly regarding who took the victim to hospital, distance between the scene of crime and Pombe shop waters down the Prosecution’s case. In the case of Frank Richard Shayo vs Republic (Criminal Appeal No. 333 of 2020) [2024] TZCA 230 (22 March 2024), at page 7, the Court stated that: It is trite law that, every witness is entitled to credence and the court is expected to believe his evidence as a credible witness. That is what was well stated in the case of Goodluck Kyando v. Republic, [2006] TLR 363, where it we held: “It is trite law that every witness is 18 | P a g e entitled to credence and must be believed and his testimony accepted, unless there are good and cogent reasons for not believing a witness.” Indeed, on the circumstances of the case given the absence of positive factors for identification of the accused during the fateful night and the weak and contradictory nature of the evidence of the prosecution that differ significantly makes the validity of PW 1 to have witnessed the incidence to lack credence. The weakness of the prosecution’s case would have been exemplified by lack of evidence regarding alleged knife stated to have been used in inflicting the wounds and absence of any cautioned statement of the accused having willingly submitted oneself to police and willing to record the same. I should state at this juncture that malice aforethought would only be imputed by the alleged four stabbing in the body of the deceased. However, evidence of PW 4 was lucid that save for stab on abdomen all other three wounds were not dangerous nor could have not caused death of the victim. Similarly, evidence of PW 2 and PW 3 revealed existence of fight between the deceased and the accused as heard directly from the accused personally. Thus, these two aspects negate possibilities of malice aforethought in the circumstances of the evidence of PW 1, PW 2, PW 3, PW 4 and PW 6. 19 | P a g e In exclusion of evidence of PW 5, there is nothing on record to establish that it is the action of the accused person that had caused death to the victim nor that there existed any malice aforethought to cause such death. I would have been prepared to find out that the accused person is not guilty of the offence of murder for which stood charged. However, I shall have glance on oral evidence of PW 5 and Exhibit P.2 which is the extrajudicial statement. I should state at the outset that admissibility of Exhibit P. 2 was not objected by the accused person. The contents of Exhibit P. 2 reflect that: “…. baada ya kuona siachi fimbo akachomoa kisu akarusha kisu nikadaka kisu na mkono wa kulia akawa anavuta kile kisu nikang’ang’a nia ndipo kikanikata mkono wa kulia tukaanguka wote pamoja kile kisu kikadondoka ndipo mimi nikakiokota ndiyo nikamchoma tumboni. Baada ya kumchoma nikaona mwenzangu anaanza kupiga kelele ndipo mimi nilimwachia na kukimbia porini. Baada ya hapo nilenda Kituo cha Polisi Mpwapwa tarehe 24/02/20243.” This confessional statement has effect of establishing the following aspect. First, that the accused person stabbed the deceased with knife once at the abdomen on the fateful date. Second, the stabbing resulted from a fight between the accused and the deceased. Third, the accused 20 | P a g e sustained injuries in terms of wounds by sharp object on hands and bruises on several parts of the body. This evidence tallies squarely with the evidence of the defence, DW 1 who testified to the effect that there was a fight ensued between the accused and the deceased initiated by the deceased that led to the incidence of stabbing the deceased. The same was corroborated by evidence of PW 2 who stated categorically that deceased went to his shop calling for help and informed him that there was a fight that caused the accused to stab the victim with a knife. It was also the evidence of PW 3 that the accused is known to have been a person of good behaviour and that stabbing arose out of fight between the deceased and the accused. Therefore, it is certain that the only available evidence on record linking the accused person to the offence of manslaughter, is the extrajudicial statement. This is the extrajudicial statement that the accused recorded before a Justice of Peace having willingly handed oneself to the police. The principle is respect of the effect of confession is well established in this jurisdiction. In the case of Chande Zuber Ngayaga & Another vs Republic (Criminal Appeal No.258 of 2020) [2022] TZCA 122 (18 March 2022) (TANZLII), at pages 13-14, the Court of Appeal illustratively stated that: 21 | P a g e It is settled that an accused person who confesses to a crime is the best witness. The said principle was pronounced in the cases of Jacob Asegellle Kakune v, The Director of Public Prosecutions, Criminal Appeal No, 178 of 2017 and Emmanuel Stephano v. Republic, Criminal Appeal No. 413 of 2018 (both unreported). Specifically, in Emmanuel Stephano (supra) the Court while reiterating the above principle stated that: - 'We may as well say it right here, that we have no problem with that principle because in a deserving situation, no witness can better tell the perpetrator of a crime than the perpetrator himself who decides to confess." Such evidence of the accused regarding confession before the Justice of Peace (PW 5) leaves no doubt that the accused participated in termination of the life of the deceased. However, such unlawful termination of the deceased life was not accentuated by malice. The absence of malice aforethought due to the aspect of fight between the deceased and the accused, has a significant role in law to reduce serious nature of offence to a lesser offence. It is established law in this jurisdiction that where death occurs as a result of a fight, the element of malice aforethought is negated and the offender is convicted of a lesser offence of manslaughter not otherwise. 22 | P a g e There is a plethora of authorities that all deaths arising out of any fight results into the offence of manslaughter. For instance, Aloyce Kitosi vs Republic (Criminal Appeal 284 of 2009) [2012] TZCA 242 (6 December 2012) (TANZLII), at page 4, the Court of Appeal observed that: It has been stated by this Court that where death occurs as a result of a fight or on account of provocation the killing is manslaughter and not murder. - See for example, Juma Kilimo v Republic- Criminal Appeal No. 70 of 2012 (unreported). Since the killing in this case was a result of a fight the element of malice aforethought was negated. [See also Bakiri Rajabu Bakiri vs Republic (Criminal Appeal 292 of 2021) [2022] TZCA 164 (31 March 2022); Jackson Mwakatoka & Two Others v. Republic [1990] TLR 17; Moses Mungasiani Laizer alias Chichi v. Republic [1994] TLR 222; and Republic v. Wimaana [1968] HCD n,49]. This principle was recently articulated in the case of Bahati Ndunguru @ Moses vs Republic (Criminal Appeal 361 of 2018) [2021] TZCA 187 (7 May 2021) (TANZLII), at pages 22-23, where the Court of Appeal stated lucidly that: In in view of our finding above, we agree with Mr. Mongo that in the circumstances of the evidence in the record of appeal, it can certainly be concluded that the death of the 23 | P a g e deceased occurred in the course of a fight with the appellant. It cannot therefore, be inferred or concluded to the contrary that the said death was actuated by malice aforethought on the part of the appellant. On the contrary, the facts on the record categorically disclose the offence of manslaughter contrary to section 195 of the Penal Code. Generally, it is settled law that death resulting from a fight is not murder but manslaughter. In this regard, in Zuberi Abdallah v. The Republic, Criminal Appeal No. 144 of 1991 (unreported) the Court stated that: “It has been held a number of times by this Court and its predecessor, the East African Court of Appeal that death resulting from a fight is at worst, a manslaughter. The accused stood arraigned for Information of Murder contrary to section 196 and 197 of the Penal Code, Cap 16 R.E. 2022. The only available evidence on record establishes the ingredients of manslaughter offence contrary to section 195 and 198 of the Penal Code, Cap 16 R.E. 2022 which is lesser offence in comparison with the information that arraigned the accused to this Court. It is by virtue of the provisions of section 300 of the Criminal Procedure Act, Cap 20 R.E. 2022, this Court is inclined to find out that the accused person is guilty of a lesser offence of manslaughter contrary to Section 195 and 198 of the Penal Code, Cap 16 R.E. 2022. I shall therefore 24 | P a g e proceed to substitute the appropriate conviction for the accused person one Ernest Juma Pima to the offence of manslaughter and not murder. I so find. The accused person one Ernest Juma Pima is hereby found guilty and convicted of the offence of manslaughter contrary to sections 195 and 198 of the Penal Code, Cap 16 R.E. 2022. DATED at DODOMA this 1st day of November 2024 E.E. LONGOPA JUDGE 01/11/2024. SENTENCE: Having heard the submissions from the counsel for defence and that of the prosecution, I have dispassionately followed up and considered both submissions keenly. I am called upon to enter appropriate sentence on the offender of manslaughter. I have noted that the offender is the first offender as there are no previous records to have committed any offence before the incident leading to death of the victim. Second, the offender cooperated fully with the law enforcement organs by voluntarily submitting oneself to Mpwapwa District Police Station upon realization that fight he was involved led to injury/ bodily harm to the victim. 25 | P a g e It is on record also that the death resulted from a fight while drinking local brew at the local Pombe shop thus negating the intention to cause death, it is this court’s view that the offender deserves leniency of this court. Considering of all these factors and the fact that only one stab was categorically stated to have been dangerous one indicates that offender did not intend to cause grievous harm or death. I shall sentence him to three (3) years imprisonment from today. The offender one Ernest Juma Pima is hereby sentenced to imprisonment for period of three (3) years. It is so ordered. E.E. LONGOPA JUDGE 1/11/2024. 26 | P a g e