REPUBLIC vs BARNABA MWITA MATOROLA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MUSOMA SUB REGISTRY AT TARIME CRIMINAL SESSIONS CASE NO. 77 OF 2023 REPUBLIC VERSUS BARNABA S/O MWITA @ MATOROLA JUDGMENT OF THE COURT 18/10/2024 & 06/11/2024 Kafanabo, J.: The accused herein, Barnaba Mwita @Matorola (hereinafter referred to as 'Barnaba' or the 'accused') has been indicted before this court for one count of murder contrary to section 196 of the Penal Code, Cap. 16 R.E. 2022. The particulars of the offence indicate that the accused on the 8th day of May 2023 at Mrito village within the Tarime District in the Mara Region, murdered Mwita Tontora Marwa. The information was read over to the accused who pleaded not guilty to the offence of murder. To make his plea speak, the accused pleaded that "Ni kv/eli, niliua bila kukusudia (it is true, I killed unintentionally). As the record will reveal shortly in this judgment the accused maintained this confession from the moment he surrendered himself to the Tarime Police Station, to the Justice of the Peace, during the preliminary hearing and throughout the trial. Brief facts of the case are that the fateful incident occurred on the 8th day of May 2023, at Mrito Village within Tarime District, in the Mara Region. i On the material date, at night hours, the Accused was drinking alcohol at the bar cum guest house known as Pasua. The bar is located at Mrito Village and was owned by the deceased. Whilst drinking alcohol, the accused seduced a bar attendant by the name of Pendo and they agreed to sleep together upon closure of the bar that night. Therefore, the accused rented a room in the said bar cum guest house. However, for reasons that will be laid bare in this judgment, the said Pendo was enticed to sleep with another man namely Chacha Sinsiga. The decision made the accused person furious and as a result, a dispute arose in the said bar cum guest house (hereinafter referred to interchangeably as the 'bar' or 'guest house' or 'bar cum guest house'). It is also on record that the deceased decided to take the accused person outside the bar by holding his hand and pulling him outside, but the accused did not agree with such a decision by the deceased. Upon reaching the exit gate of the bar, the accused held onto the poles of the gate resisting being withdrawn from the bar, then the deceased pushed him and the accused fell at the gate. Then the accused stabbed the deceased on the left­ hand side of the deceased's chest. The deceased fell as he suffered a fatal injury and started to bleed severely. The accused took to his hills and went into the hideout until when he surrendered himself at the Tarime Police Station on the 14th day of May 2023. As earlier stated, the accused pleaded not guilty to the information of murder and thus the case had to proceed to full trial. In a bid to prove that the accused is responsible for the murder of the deceased, the prosecution paraded four (04) witnesses and tendered two (02) exhibits. 2 The evidence on record is the testimonies of Yusuph Chandi Tontora (a relative of the deceased) who testified as PW1, Marwa Issa Tontora (a relative of the deceased) who testified as PW2, G7499 D'CpI Abeli, a Police Officer who testified as PW3, and Gibalwa Elaija Nyamhanga, a Medical Doctor who testified as PW4. The said testimonies were supported by Exhibit Pl- a sketch map of the crime scene and Exhibit P2-a postmortem report of the body of the deceased. The prosecution case was opened by the testimony of PW1, Yusuph Chandi Tontora. He testified that on 08/05/2023, he was at his workplace which is Pasua bar managing the counter of the bar. The bar was owned by Mwita Tontora Marwa, who was his elder uncle and is now deceased and the bar is located at Mrito-Morogo centre. On that day at around 7.00 p.m. Chacha Sinsiga (herein after Chacha) arrived at the bar as a customer, and agreed with a lady called Pendo, one of the barmaids at the bar, that they would sleep together that night, then Chacha bought alcohol (beer) and was drinking with Pendo until around 9.00-10.00 p.m. when the accused arrived and called Pendo who initially was seated with Chacha. Barnaba and Pendo discussed something, which PW1 did not hear, and Pendo started to serve Barnaba. Moreover, it was testified by PW1 that, at the bar, there were other people including PWl's brother Marwa Issa, and others whom he did not remember the names. Pendo continued to serve alcohol (beer) to both Barnaba and Chacha. Then Barnaba asked Pendo if she was already committed to someone that night (the witness used a Kiswahili phrase 'kama Pendo alishaopolewa'}, that is whether Pendo had agreed to sleep and have 3 sex with someone that night. Pendo denied and then Barnaba and Pendo agreed to sleep together (to have sex) that night. When it reached 11.00 p.m., PWl's elder uncle, Mwita Tontora Marwa, arrived and told PW1 that it was time to close the bar. Then they closed the bar, but the doors of the guest house remained open. The further testimony of PW1 was that, after the closure of the bar they retreated to the guest house which is at the rear of the bar, in the same building in which the bar is located. Then, when they were at the guest house a quarrel arose between Barnaba, Pendo, and Chacha. Chacha wanted to go and sleep with Pendo, and Barnaba wanted to go and sleep with Pendo. Thereafter, Chacha pulled Pendo they entered the guest and locked the door. At that time Barnaba had already paid for a room at the guest house, and Mwita Tontora Marwa, who was the owner of the bar, asked Barnaba to enter his room and sleep, Barnaba refused and said he wanted to sleep with Pendo. Then Mwita Tontora Marwa told Barnaba that Pendo had already been taken by another man, and he should go to sleep at his home and should return the following day where he would find his room and Pendo would be available. Barnaba refused insisting that he wanted to sleep with Pendo. Then Mwita Tontora Marwa held the hand of Barnaba taking him out so that he could close the doors of the guest, upon reaching the gate, Barnaba held onto the exit gate refusing to go out. Then Mwita Tontora Marwa pushed Barnaba out of the gate by using a hand, and when Mwita Tontora Marwa was closing the gate, Barnaba fished out a knife and stabbed Mwita Tontora Marwa on the chest. 4 PW1 testified that after Barnaba had stabbed the deceased, two persons named Mama Geto and Naomi started to scream and then Barnaba ran away. PW1 managed to witness Barnaba stabbing the deceased because he was at the door of his bedroom, and there were bulbs with strong/bright light, and that he knew the accused before that day because he was a regular customer at Pasua bar. Then Chacha together with Marwa Issa went to the scene, they took the deceased on a motorcycle and took him to the Police Station, and later they were informed that Mwita Tontora Marwa was taken to the hospital where he died. PW1 managed to identify the accused who was sitting in the dock by pointing at him. In cross-examination PW1 testified that the murder incident occurred on 08/05/2023 which was preceded by a wrangle/fight that arose at the guest house and on that day of the incident the accused, Chacha and Pendo drank alcohol and agreed to have sex that night, but this was not within the knowledge of the accused. When the accused entered the bar Chacha and Pendo had already started drinking alcohol, and later the accused and Pendo also continued to drink alcohol whilst agreeing to have sex that night, however, Pendo lied to the accused that he had not agreed to have sex with Chacha. PW1 laid it bare that Pendo consumed the resources of the accused at the bar and ended up deserting him for Chacha, basically, she conned/swindled the accused. PW1 further testified that the accused and the deceased had no misunderstandings before the fateful incident. The 5 deceased pulled the accused by hand in order to take him out, but the accused was resisting as he was not ready to go out of the guest house, eventually the deceased pushed the accused outside the guest house. PW2 was Marwa Issa Tontora, he testified that on 08/05/2023 he was at the bar called Pasua, located at Mrito Village, which belonged to his uncle Mwita Tontora Marwa. He arrived at the bar at around 8.00-9.00 p.m. He drank beers, and at around 09.00 p.m. to 10.00 p.m., Barnaba (the accused) arrived. Moreover, at that particular time at the bar, there was a barmaid called Pendo who had already agreed with Chacha to have sex that night. When Barnaba arrived he called Pendo, and they discussed something which PW2 did not know. When it reached 11.00 p.m. Mr. Mwita Tontora Marwa said that he wanted to close the bar, and then PW2 left the bar and went to sleep. However, upon reaching the road he heard a scream from the bar of Mwita Tontora Marwa. Then he decided to go back and met Barnaba along the way running whilst holding a knife, he decided to chase Barnaba. When they reached a dark pathway, Barnaba went after PW2 threatening to kill him. PW2 retreated and went back to the bar, and found that Mwita Tontora Marwa was lying down after being stabbed in the chest. Then Chacha and PW2 by using the deceased's motorcycle, took the deceased to Mrito police station, where they obtained PF3 and took the deceased to a health centre called Sungusungu which is at Nyangoto, but the doctors declared Mwita Tontora Marwa dead on arrival. PW2 also testified that when he met Barnaba running, he recognized him because of the clothes he wore and his face, and because they studied together, and they lived at nearby hamlets. He also testified that he was the 6 one who led the police officer in drawing a sketch map of the crime scene which he identified when showed to him. The witness also identified the accused, who was at the dock, as Barnaba. PW3 was G7499 D'CpI Abel, a police officer working as an investigator, at Nyamwaga Police Station. He testified that on 09/05/2023 when at Nyamwaga Police Station. He was given a file from the OCCID, ASP Chacha Lameck, with the number Nyamwaga/IR/940/2023. The file was about the murder of Mwita Tontora Marwa which occurred on 08/05/2023 at 11.00 p.m. at Mrito Village in the Tarime District. The initial investigation indicated that the deceased was killed by Barnaba Mwita Matorola. He also testified that on 12/05/2023, he went to the crime scene at Mrito Village, where he drew a sketch map of the crime scene on the murder of Mwita Tontora Marwa whilst guided by Marwa Issa Tontora. The sketch map of the crime scene was admitted as exhibit 'Pl'. He also testified that on 15/05/2023 he received information from the OCCID ASP Chacha Lameck that the accused Barnaba Mwita Matorola surrendered himself at the Tarime Police Station. Then the accused was taken to Nyamwaga Police Station where PW3 saw him. PW3 also identified the accused by touching him whilst seated at the dock. He also testified that the deceased was stabbed by a sharp object and the person who stabbed the deceased was Barnaba Mwita ©Matorola. PW4 was Gibalwa Elaija Nyamhanga, a medical doctor, working at Nyangoto Health Centre. He testified that on 09/05/2023, the body of a dead person was taken to the health centre, and police officers went to the health centre in order to know the cause of death. The body was that of 7 Mwita Tontora Marwa as identified by a relative. Upon conducting a postmortem they found that he was stabbed on the left side of the chest, ribs were cut and other organs of the body like the heart and lungs could be seen. The body was not stretchy but was stiff which indicated that a long time had passed since the death occurred. The witness further testified that the wound had been caused by a sharp object and the cause of death was hypovolemic shock due to massive bleeding. PW4 tendered the post-mortem report of the body of Mwita Tontora Marwa which was admitted as exhibit P2. PW4 also testified that that according to the examination he conducted the deceased had only one wound. After the testimony of PW4, the prosecution's case was closed and the accused was found with a case to answer. He thus entered his defence where he chose to defend himself under oath as DW1. The accused testified that on 08/5/2023 he was at work in Kerende Village in the Tarime District, then after work, he went back to Mrito Village where he lived, and went to the bar called Pasua which was at Mrito Village in the Tarime District. He arrived at Pasua bar, which is also a guest house, at 08.00 p.m. and found more than 10 persons who were drinking alcohol (beer). The persons he found at the bar included Mkami Kayamba, Isack Chacha, Pendo, Naomi, Marwa Issa, Rimo and others. The said bar was owned by Mwita Tontora Marwa who was at the bar when the accused arrived, and Chacha and Pendo were also drinking alcohol at the bar. The accused also ordered beer which was served by Pendo (a bar attendant) and he continued drinking 8 a lot of beer served by Pendo. In the course of drinking he agreed with Pendo that, after work, they would go and sleep as lovers (have sex). In order to implement what they agreed with Pendo, he rented a room in the said bar, which was room No. 06, in respect of which he paid ten thousand shillings for the room. At 11.00 p.m. it was time to close the bar, so the accused and Pendo left the bar to go to sleep in room number 06 in the guest house located at the rear of the said bar. Then upon reaching the rear part of the bar where the guest house was located and before they entered the room, Mwita Tontora Marwa accompanied by Chacha followed them and Mwita Tontora asked Pendo if she was going to sleep with the accused which Pendo confirmed. However, Mwita Tontora Marwa told Pendo that the accused was drunk, and Mwita Tontora Marwa ordered Pendo to go to sleep with Chacha and that the accused should leave the premises of the bar and return to the bar the following day. Then Chacha pulled Pendo and they entered the guest house to sleep. After Pendo and Chacha went to sleep inside, Mwita Tontora told the accused to go to sleep at home. The accused testified that he agreed, but asked Mwita Tontora Marwa to pay back his money which he paid for the room so that could go to sleep nearby because it was late at night. The deceased told the accused that he would not return the money. Then the accused stood up and decided to leave, then Mwita Tontora pushed the accused and started to attack him by using a mace(/77p//7/), hitting him on the shoulders, on the back and other parts of the body. Then upon reaching the exit gate, the accused fell at the gate where he found a knife which was 9 placed in the dishes of the barbeque kitchen which he used to wound the deceased. The accused further testified that he stabbed the deceased with a knife accidentally, and on 14/05/2023 he surrendered himself at the police station, Tarime Bomani. He went to surrender to the police station coming from home when accompanied by his relative called Chacha Marwa. When at the police, he confessed that he wounded the deceased by accident, he was also taken to the justice of the peace who was the Magistrate at Nyamwaga Primary Court, where he confessed to having wounded the deceased and that the deceased died by accident. In cross-examination DW1 testified that Pendo was not his wife, she was his lover, and that she wanted some money so that they could sleep together. He gave Pendo TZS 20,000/=, out of which TZS 10,000/= she paid for the room, and TZS 10,000/= was for herself. Pendo showed him the room which he rented in the presence of Mwita Tontora Marwa, who was involved in the matter at the last minute. He also testified that when all that was done he was already drunk. He testified that he picked the knife from the dishes of the bar at a barbecue place which is located in the bar, which is separated by the gate from the bar. The deceased attacked the accused when he was leaving the bar, then he fell and found the knife which was from the dishes which were placed near the gate and he stabbed the deceased. He also testified that he was not drunk to the extent of not understanding what was going on at the bar. He also said that he did not io tender proof that he was attacked by the deceased or left the bar whilst injured. He also denied threatening to kill Marwa Issa as alleged. At this juncture, the defence closed its case. After the closure of both the defence and the prosecution's case this Court now is called upon to determine whether the accused is responsible for the offence is charged with, that is murder contrary to section 196 of the Penal Code R.E. 2022. In the light of the evidence hereinabove, and as depicted in the proceedings, and taking into account the submissions by the prosecution, this court is called upon to determine whether the Republic has proved her case that the accused is responsible for the murder of Mwita Tontora Marwa (hereinafter referred to as 'the deceased') beyond a reasonable doubt. In answering this major issue before the court, this court is guided by the provisions of section 196 of the Penal Code which reads: 'Any person who, with malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder' In light of the above section, and in order to prove that the accused is guilty of murder it must be proved that the death of a deceased was caused by an unlawful act or omission of the accused with malice aforethought. It is also a cardinal principle of law and practice that the prosecution in criminal trials has to establish and prove the allegations beyond a reasonable doubt as required by law, whose duty never shifts to the accused. Section 3(2)(a) of the Evidence Act, Cap. 6 R. E. 2019 is relevant; also see the cases of Six Ilanga @ Msaka vs Republic (Criminal Appeal No. 484 of 2020) [2024] TZCA 95 (23 February 2024) and John Dickson @ Ngongole vs li Republic (Criminal Appeal No. 477 of 2021) [2024] TZCA 144 (29 February 2024). It is inevitable that in order to prove the aforementioned, the answers to the following questions are vital; one, whether the said Mwita Tontora Marwa is dead, if that is answered in the affirmative, the next question would be how did he die, that is, whether his death was a result of natural or unnatural cause, if the death was due unnatural cause then who caused the death of Mwita Tontora Marwa and whether the causation was a result of a lawful or unlawful act or omission. The last question would be whether the causation was with malice aforethought. In augmenting the above this court finds comfort in the case of Abel Orua @ Matiku & Others vs Republic (Criminal Appeal No. 441 of 2020) [2024] TZCA 78 (21 February 2024), where the court of appeal held that: "It is a settled position of the law that in proving the offence of murder under section 196 of the Penal Code, it must be established that the death of a human being occurred, that the death was unnatural and was caused by an unlawful act or omission, that it was the accused person who did the unlawful act or omission leading to the death of the deceased and finally that the death was caused with malice aforethought. " As regards, the issue of whether the said Mwita Tontora Marwa is dead, the same is not difficult to answer considering the evidence on record. According to the testimony of PW4, Gibalwa Elaija Nyamhanga, a medical doctor from Nyangoto Health Centre who conducted a postmortem examination on the body of Mwita Tontora Marwa, and whose body was 12 identified by his relatives, concluded that the deceased's cause of death was hypovolemic shock due to massive bleeding because the deceased was stabbed by a sharp object. PW4 tendered the postmortem report of the body of Mwita Tontora Marwa which was admitted as exhibit 'P2'. His testimony was corroborated by the testimony of PW2, Marwa Issa Tontora, who took the deceased to the health centre for treatment but was declared dead on arrival. It is also clear from the record that after the postmortem report was conducted, the body of Mwita Tontora Marwa was handed over to his relatives for burial. Therefore, as per the record, there is a shred of overwhelming evidence that Mwita Tontora Marwa died and it has been proved as such by the prosecution. In addition, the fact that Mwita Tontora Marwa is dead was not disputed by the defence, rather it was their version of defence that the deceased died accidentally. The next question is how did Mwita Tontora Marwa die? PW4, as alluded to herein above, testified that the deceased's death was caused by hypovolemic shock due to massive bleeding, and it was because the deceased was stabbed by a sharp object. The postmortem report, exhibit P2, makes it clear the above cause of death. Moreover, as per the testimony of PW1, he witnessed the deceased being stabbed by the accused in the chest at the gate of Pasua bar and thereafter the accused ran away. The testimony of PW2 is also relevant because he found the deceased lying down bleeding after being stabbed in the chest. The testimony of the accused is also key in establishing the cause of death of Mwita Tontora Marwa. The accused testified unequivocally that he 13 stabbed the deceased after a wrangle between them which led to the accidental death of the deceased. In light of the above, it is safe for this court to conclude that the deceased died because of an unnatural cause, that is massive bleeding that led to hypovolemic shock, which germinated from a stab wound. See the case of Mathias Bundala vs Republic (Criminal Appeal 62 of 2004) [2007] TZCA 16 (16 March 2007). This court having concluded that the death of Mwita Tontora Marwa was unnatural, opens the door for determining the question of who caused the death of the deceased. In this case, the prosecution has led evidence intending to prove that the accused is responsible for the murder of the deceased. The issue of who killed the deceased is also not a headache to this court because of the evidence on record which speaks for itself. In determining who killed the deceased the evidence of DW1, the accused himself is the key witness. The accused first confessed to having stabbed the deceased, Mwita Tontora Marwa, by using a knife and that the deceased died accidentally because of the said stabbing as he did not intend to kill him. The testimony of the DW1 was corroborated by the testimony of PW1, Yusuph Chandi Tontora (a relative of the deceased), who eye-witnessed the accused stabbing the deceased at the gate of the bar cum guest house. The fact that the accused stabbed and killed the deceased was also not disputed during the preliminary hearing, and it is the memorandum of agreed facts that the accused stabbed and killed the deceased. It is therefore safe for this court to conclude that it is the accused, Barnaba Mwita @Matorola who killed the deceased. 14 After finding that the accused is the one responsible for the killing of the deceased, it is now pertinent time to determine whether the said killing of the deceased was actuated with malice aforethought. In determining whether the accused killed the deceased with malice aforethought, this court will be guided by the facts as gathered from exhibit P2 (a postmortem report) and the testimonies of PW4, a medical doctor, PW1 (a relative of the deceased who witnessed the deceased being assailed), PW2 and DW1 (the accused himself). The summary of facts as regards the body of the deceased and the circumstances surrounding the commission of the crime is as follows: i. As testified by PW1 and DW1 the accused was a regular customer of the Pasua bar where the murder incident occurred. ii. It is also on record and undisputed that the accused upon arrival at the bar was served liquor (beer) by the barmaid with the name of Pendo who had been drinking alcohol with another man called Chacha. iii. Later in the course of drinking beer, as per the testimony of PW1 and DW1, the said Pendo and the accused agreed to sleep together and have sex after Pendo's work shift that night at the said Pasua bar cum guest house. iv. That the accused in implementing the agreement with Pendo rented a room at the said Pasua bar cum guest house, and the relevant room which he rented was shown to him by the said Pendo in the presence of the deceased who was the owner of the Pasua bar cum guest house. 15 v. That after the closure of the bar by the deceased, the accused and Pendo retreated to the rear part of the Pasua bar cum guest house where the guest house was located. vi. When at the rear part of the Pasua bar/cum guest house, and before entering the room rented for the duo to sleep, the deceased whilst accompanied by Chacha approached the accused and Pendo and ordered Pendo that he should go to sleep with Chacha because the accused was drunk. vii. That Pendo heeded her superiors' instructions and entered the guest house with Chacha for the purposes of sleeping together, meanwhile the accused was left in the cold and his hopes of having an eventful night with Pendo dashed. viii. As that was not enough, right away the deceased, after ruining the already exciting night for the accused, asked him to leave the Pasua bar cum guest house and that he should go there the following day as Pendo would be available and unfettered. ix. The since the accused had already rented a room for the action-packed night for TZS 10,000/= he demanded a refund of the same from the deceased, the owner of the Pasua bar/cum guest house, who refused to refund the same. x. That it is on record that, as per the testimony of PW1 the accused did not heed the instructions of the deceased and resisted to leave Pasua bar/cum guest house. Although, on the other hand, the accused 16 testified that he agreed to leave the bar but the deceased started to attack him by using a mace/club. xi. That it is not in dispute that since the accused did not heed the instructions of the deceased for the accused to leave the bar, then the deceased got hold of the accused's hand and started to pull him towards the exit gate of the Pasua bar cum guest house. It is on record that the accused continued to resist and when they reached the exit gate the accused held onto the masts/poles of the gate resisting exiting the Pasua bar/cum guest house. xii. Then the decisive moment was when the deceased pushed the accused out of the bar, and the accused fell, and accused responded by stabbing the deceased in the chest using a knife which he picked from the dishes of the barbecue kitchen which were kept near the exit gate where he fell. xiii. The accused stabbed the deceased once and ran away. xiv. The accused attacked a vulnerable part of the body of the deceased, that is the chest. xv. The wound inflicted on the deceased indicates that the assailant attacked the deceased by using a lethal weapon, which as testified by PW1 and admitted by the accused, was a knife. xvi. The cut wound was about 2-centimetre-long and 2-centimetre-deep visible heart and lacerated left lung, two ribs cut completely assailant used vicious force when attacking the deceased. 17 xvii. The number of wounds on the body of the deceased shows that there accused landed only one blow as confirmed by PW4 and exhibit P2. xviii. The conduct of the accused after the commission of the offence, that is he ran from the crime scene and surrendered himself to the Tarime Police Station after six days, that was on 14/05/2023. Having in place the above guiding facts of the case, it is now opportune for this court to review the law on malice aforethought section 200 of the Penal Code Cap. 16. R.E. 2022 provides for circumstances under which malice aforethought may be inferred, the relevant section reads: "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 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." Moreover, the factors to be considered in determining malice aforethought were also exemplified by the Court of Appeal in the case of 18 Charles Bode vs Republic (Criminal Appeal No 46 of 2016) [2019] TZCA 578 (6 March 2019) where the Court of Appeal of Tanzania observed that: "The decision of the Court in the case of Enock Kipela vs Republic, Criminal Appeal no. 150 of1994 (unreported), is very instructive when it comes to the question of ascertaining as to whether the killing committed by the appellant was done with malice aforethought or not. It was held thus: usually an attacker will not declare his intention to cause death or grievous bodily harm. Whether or not he had the intention must be ascertained from various factors, including the following: (i) The type and size of the weapon which was used in the attack leading to the death of the deceased; (ii) The amount of force which was used by the attacker in assaulting the deceased; (Hi) The part or parts of the body of the deceased where the blows of the attacker were directed at or inflicted; (iv) The number of blows which were made by the attacker, although one blow may be enough depending on the nature and circumstances of each particular case; (v) The kind of injuries inflicted on the deceased's body; (vi) The utterances made by the attacker if any, during, before or after the attack; 19 (vii) The conduct of the attacker before or after the incident of attack." In the light of the above facts, the evidence on record, and the factors enumerated under section 200 of the Penal Code and as further expounded in the cases of Charles Bode vs Republic (supra) and Enock Kipela vs Republic (supra), this court is not convinced that the accused attacked the deceased intending to cause death or grievous bodily harm for various reasons as demonstrated herein below. First, the accused went to the bar as a regular customer not targeting to injure anybody and made an agreement to sleep and have a sexual affair with Pendo. Second the deceased, being the owner of the bar and guest house crumbled the plan of the accused's ripe exciting night of sleeping with Pendo by interfering in a sexual affair which was not his business. This was when he ordered Pendo, his barmaid, to sleep with Chacha and desert the accused. The deceased, as per the evidence on record, was quite aware that the accused had rented and paid for a room in his guest house to sleep with Pendo, and taking into account that the trio of the sexual affair that is, the accused, Pendo and Chacha had been consuming alcohol for the substantial part of the night at the deceased's bar. Third, the deceased demanded the accused to leave the guest house but refused to refund the money paid by the accused for renting the said room. Fourth, the fact that the deceased ordered Pendo to desert the accused and to go and sleep with Chacha instead and that the deceased refused to 20 refund the accused's money paid for renting a room were not controverted by any testimony of the prosecution. This court, however, notes that PW1 and DW1 (the accused) differed in that PW1 testified that it was Pendo who chose to go and sleep with Chacha, but the accused testified that it was the deceased who ordered Pendo to desert him and sleep with Chacha instead. This was a key material fact to be established by the prosecution because it sparked the whole saga of the fateful night. However, the prosecution did not call its key witnesses of the night of the incident, that is Pendo and Chacha to enlighten the court on the matter, and there is no iota of explanation that was given by the prosecution as to why they were not called as witnesses. Under the circumstances, the benefit of the doubt is given to the accused's story because the court is entitled to draw adverse inferences to the Republic's case for failure to call the said witnesses. See the cases of Simon Edson @ Makundi vs Republic (Criminal Appeal 5 of 2017) [2020] TZCA 1730 (18 August 2020) and Aziz Abdallah v. R [1991] T.L.R 71. Moreover, in the case of Allan Duller vs Republic (Criminal Appeal 367 of 2019) [2021] TZCA 689 (23 November 2021) the Court of Appeal held that: ' The principle of adverse inference finds its basis on an assumption that the evidence which could be and is not, produced would, if produced, be unfavourable to the person who withholds it. Fifth, the situation was made worse when the deceased forcefully pulled the accused to exit the bar. In ensuring that the accused exits the premises of the bar and the guest house, the deceased attacked him by 21 using a mace and upon reaching the exit gate the accused held onto the poles of the gate. The deceased then pushed the accused who fell at the gate and found a knife in the nearby kitchen dishes and he stabbed the deceased. This accused story in defence, which was partly corroborated by the testimony of PW1 has been given more weight by this court because of the following: i. Although PW1 testified to have seen the accused stabbing the deceased, he did not say how the accused got hold of the knife which he used to stab the deceased. It was not clear whether the accused carried with him a knife when he entered the bar which means he would have fished it from the garments he wore, or he picked it from nearby the gate as testified by the accused. ii. Moreover, the prosecution did not call some of the key witnesses who seemed to have witnessed the accused stabbing the deceased because their screams, as per PW1 testimony, made the accused run away after stabbing the accused. The said witnesses were named by PW1 as Mama Geto and Naomi. Failure of the Republic to call these witnesses entitles the court to draw adverse inferences against the prosecution's case. See the cases of Simon Edson @ Makundi vs Republic (supra), Aziz Abdallah v. Republic (supra) and Allan Duller vs Republic (supra). Sixth the accused showed remorse for the offence he committed as he surrendered himself to the Tarime Police station a few days after the commission of the crime. 22 Seventh, that the accused confessed to the stabbing of the accused and causing his death accidentally both to the police and the justice of the peace. Eighth, when the information for murder was read to him during the preliminary hearing in this court pleaded to have killed the deceased accidentally and offered to plead guilty to the lesser offence of manslaughter but his offer was turned down by the Republic. Ninth, at the commencement of the trial it is also on record that the accused pleaded to have killed the deceased accidentally. Tenth, the circumstances surrounding the commission of the offence and the conduct of the accused before and after the commission of the offence do not establish a premeditated intention to kill the deceased or any other person. Having demonstrated why the court is of the view that the accused did not attack the deceased with an intention to cause his death, the court is of the view that the circumstances under which the offence was committed suggest that the accused committed the offence of manslaughter and not murder. The offence of manslaughter is provided for under section 195 of the Penal Code which reads: 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. 23 The section applies when the death of a person is caused by an unlawful act or omission but where the person whose act or omission caused the death without an intention to cause death or bodily grievous harm as provided for under section 200 of the Penal Code. In the present case and in the light of the evidence on record provocation and or fight is put up as a defence by the accused. It follows that, in order to determine whether the accused was provoked or not, the provisions regarding provocation as stipulated in the Penal Code, are important to revisit. Sections 201 and 202 of the Penal Code provide that: "201. - When a person who unlawfully kills another under circumstances which, but for the provisions of this section would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation as defined in section 202, and before there is time for his passion to cooi, he is guilty of manslaughter only. 202.-(1) The term "provocation"means, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial or fraternal relation, or in the relation of master or servant, to deprive him of the power of self-control and to induce him to commit an assault of the kind which the person charged committed upon the person by whom the act or insult is done or offered. 24 (2) When the unlawful act or insult is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any relationship referred to in subsection (1), the former is said to give the latter provocation for an assault (3) A lawful act is not provocation to any person for an assault. (4) An act which a person does in consequence of incitement given by another person in order to induce him to do the act and thereby to furnish an excuse for committing an assault is not provocation to that other person for an assault. (5) An arrest which is unlawful is not necessarily provocative for an assault, but it may be evidence ofprovocation to a person who knows of the illegality. (6) For the purposes of this section, the expression "an ordinary person" means an ordinary person of the community to which the accused belongs. Moreover, it is trite law that where in the light of the evidence on record it is established that provocation and/or fight was the cause of the attack that caused the death, or that death was a result of a fight then the offence of murder may be reduced to that of manslaughter. See section 201 of the Penal Code. In the case of Minani John & Others vs Republic (Criminal Appeal No. 435 of 2018) [2019] TZCA 666 (10 December 2019) the Court of Appeal held that: 25 "We wish to emphasize that since there was strong evidence to establish that the deceased's death occurred in the course of a fight, the trial court ought not to have ignored the aspect that under such circumstances, the appellants could not be said to have formed an intention to kill the deceased. There are a range of cases in which we had the occasion to underscore that where death occurs as a result of a fight, one cannot infer malice aforethought, with the effect that a charge of murder may be reduced to a lesser offence of manslaughter. We have in mind the cases of EHas Pau v. Republic, Criminal Appeal No. 7 of 2004, Emmanuel Mrefu@ BHinje v. Republic, Criminal Appeal No. 271 of2006, Mashaka Mbezi v. Republic, Criminal Appeal No. 162 of 2017 (all unreported) and Moses Mungasian Laizer @ Chichi (supra), among others." Moreover, as regards the defence of provocation, the Court of appeal in the case of Georgina Venance v. R [2005] T.L.R 84 held that: "From the provision it is dear that for an act or insult or conduct to constitute provocation in law, at least the following conditions must be satisfied. First, the act or insult causing provocation must be wrongful. A lawful act or conduct cannot provide provocation. Second, the person assaulted because of the provocation must be the one who offered the provocative act, insult or conduct. Third, the provocative act, insult or conduct must have been directed to the person committing the assault or a person who stands to him in the relationship as explained in the section. Fourth, the provocative act or insult must have been done or 26 offered in the presence of the person committing the assault. Fifth, the test is the ordinary person in society. That is to say, peculiar or eccentric qualities of the person committing the assault are not relevant when considering whether a person would be provoked by the act or insult. Seventh, the person provoked must have been deprived of the power of self-control.” Additionally, in the case of Ibendu Hashimu vs Republic (Criminal Appeal 546 of 2020) [2022] TZCA 231 (2 May 2022) it was held that: "The defence ofprovocation can only sail through once the court has satisfied itself that the words uttered or conduct demonstrated by the deceased were provocative to an ordinary person of the community to which the appellant belonged. ” Reverting to the present case, and applying the above principles to the facts as demonstrated herein, it is certain that in this case there are elements of both an altercation and provocation as demonstrated below. Foremost, it is important to note that the barmaid whose arrangement with the accused was severed by the deceased was not the wife of the accused. Therefore, if the said Pendo would have personally and voluntarily refused to sleep with the accused, and had decided to sleep with another man, no provocative elements would have been considered because it is trite law that provocation can only be considered if the offence is committed by the accused as a reaction to the act of adultery committed by a spouse to a marriage. See the case of Republic vs Evarist Ngwizye @ Hulichingh'a (Criminal Sessions Case 42 of 2000) [2007] TZHC 295 (27 February 2007). 27 However, according to the evidence on record in this case, and as alluded herein above, the facts establish that: i. It was not Pendo who refused to sleep with the accused, rather it was because of the order of a superior third party's (the deceased's) interference, taking into account that the deceased was the owner of the bar where Pendo worked. ii. The deceased, being superior and in a position to dominate the will of Pendo, interfered and severed the intimate arrangement established between Pendo and the accused, and eventually ordered the said Pendo to go and sleep with another man, Chacha, in front of the accused. This was a wrong act on the part of the accused and any reasonable person would not deem it right. iii. Moreover, it is the same deceased who immediately after ending the mutual arrangement between the accused and Pendo forcefully pulled the accused to the exit and pushed the accused out of the bar/guest house without refunding the accused's room rental fee paid by the accused for the room he expected to sleep with Pendo. This was another wrong move by the deceased which would infuriate any right-minded person, let alone the right-thinking member of the community to which the accused and the deceased belonged. iv. The deceased further attacked the accused with a mace and pushed the accused who fell at the exit gate. Then the accused instantly reacted by stabbing the deceased. It is undisputed that 28 the accused had no time to cool from the said scuffle with the deceased. In light of the above, and taking into account the facts of this case, it is a view of this court that the acts done by the deceased, as demonstrated above, were wrong and capable of depriving the accused of the power of self-control, and induced him to commit an assault which he committed against the accused. It is a view of this court that the accused was provoked by the deceased and reacted before he had time to cool, that is the accused reacted at the spur of the moment. The Court of Appeal cases of Kagambo s/o Bashasha vs Republic (Criminal Appeal 591 of 2017) [2021] TZCA 748 (7_December 2021), Ibendu Hashimu vs Republic (supra), Georgina Venance v. R (supra) are relevant. Moreover, in raising a defence of provocation the accused is not required to prove provocation but to raise reasonable doubt as to its existence. See the case of Egidion Bilekezi vs Republic (Criminal Appeal No. 430 of 2018) [2019] TZCA 500 (3 December 2019). In light of the above, it is safe for this court to conclude that the accused attacked and stabbed the deceased without the intention to cause his death and that the death of the deceased was not premeditated by the accused. It is therefore benign for this court to conclude that the accused herein caused the death of Mwita Tontora Marwa without malice aforethought. It follows that the accused, Barnaba Mwita @ Matorola is hereby found guilty of manslaughter as regards the death of Mwita Tontora Marwa contrary to 29 section 195 of the Penal Code, Cap. 16. R.E. 2022, read together with section 201 of the Penal Code and is hereby convicted accordingly. It is so ordered. K. I Kafanabo Judge 06/11/2024 The judgment was delivered in open court in the presence of Davis Julius Katesigwa State Attorney and Janet Kisibo Senior State Attorney, for the Republic, in the presence of Lilian Makene learned Advocate for the accused, and in the presence of Barnaba Mwita @ Matorola, the accused. K. I Kafahabo Judge 06/11/2024 ANTECEDENTS Mr. Katesigwa: The Republic has no previous criminal record of the accused, but it is the prayer of the prosecution that deserving punishment be imposed on the accused according to section 198 of the Penal Code, Cap. 16. R.E. 2022. The Court should consider, the Court's Sentencing Guideline, especially 'exhibit B'. The Court should consider that this is a 'high level' manslaughter given the weapon used which was lethal and that the deceased was attacked on a vulnerable part of the body. Appendix 'B' of the Court's sentencing guideline requires the accused to be sentenced to not less than ten (10) years' imprisonment. Also, the court should consider that in 30 Tarime right now there are several murders of this kind, so deserving punishment should be imposed on the accused in order to be a lesson to others. Moreover, the nation has lost a workforce and earnings as the deceased was conducting business. MITIGATION Ms. Lilian Makene, Advocate: Since the accused has been found guilty of manslaughter the court be pleased to be sympathetic with the accused based on the following factors: 1. The accused before the court is the first offender. This means that the accused is not a habitual offender, but a person with a good character in society. 2. The circumstances under which the offence was committed involve the fight/quarrel or misunderstanding between the accused and the deceased. Moreover, in this case, it is the deceased who started to attack the accused. Therefore, the accused was defending himself or was responding to the attack by the deceased. 3. Also in this case the accused and others who were in the quarrel had already consumed alcohol. 4. Moreover, the accused was also provoked. It was not disputed that the accused was provoked by the deceased. First, the accused was robbed of his lover for whom he incurred costs in serving her, and he was robbed of the room which he had already paid for. The accused was also pushed and attacked by the deceased. 31 5. The accused has spent time in remand which is almost one year and five months, from 14/05/2023 to date. 6. The accused pleaded guilty to the offence which the court convicted him with. He confessed to causing death unintentionally at the police station, to the justice of the peace, during a preliminary hearing and when this matter was scheduled for hearing before this Court. The confession by the accused shows remorse for the offence he committed. 7. The accused is young aged 28 years, which means that the accused is still a workforce for the nation. 8. The accused surrendered himself to the police station. 9. We also pray that the court also be guided by the Tanzania Sentencing Guideline. On page 37 of the guideline, we see that the accused's offence falls on the low level of manslaughter because of the high degree of provocation. K. I Kafanabo Judge 06/11/2024 SENTENCE On 16/10/2024 the information for the offence of Murder contrary to sections 196 and 197 of the Penal Code, Cap. 16 R. E. 2022 (hereinafter the 'Penal Code') was read over to Barnaba s/o Mwita @Matorola (hereinafter the accused). The particulars of the offence indicate that the 32 accused on the 8th Day of May 2023 at Mrito village within the Tarime District in the Mara Region, murdered Mwita Tontora Marwa (hereinafter 'the deceased'). The accused unequivocally pleaded not guilty to the said information. Following the accused's plea of not guilty to the offence of murder, this court, after a full trial convicted the accused for the offence of manslaughter contrary to sections 195 of the Penal Code. Having convicted the accused, the court invited counsels representing both parties to address the court on matters they consider relevant and that will have a bearing on the sentencing of the accused. The learned counsels diligently made their submissions for their respective cases as indicated herein above. In light of the above, this court is thus required to determine an appropriate sentence for the offence committed by the accused. The relevant law on sentencing the accused is found in section 198 of the Penal Code which provides that: 198.-Any person who commits manslaughter is liable to imprisonment for life. The above section provides a punishment of life imprisonment for a person who is convicted of the offence of manslaughter. However, this is the maximum sentence set by the law, but not an indispensable sentence to be imposed on a convict. The court upon thoughtful and prudent consideration, taking into account the circumstances and facts of each particular case, also depending on the nature and gravity of the offence, may exercise its discretion and inflict a reasonable sentence on the convict. 33 In the case of Bahati John vs Republic (Criminal Appeal No. 114 of 2019) [2022] TZCA 407 (11 July 2022) when considering a sentence of the person found guilty of manslaughter under section 195 of the Penal Code, and when interpreting the wording of section 198 of the Penal Code which prescribes punishment for the offence of manslaughter held that: "The term 'liable' used in the above provision as highlighter does not impose life imprisonment as the only sentence to a convict of manslaughter. It gives flexibility to the presiding judge to exercise his/her discretion in sentencing depending on the circumstances of each case after considering both the aggravating and mitigating factors, the hiit being total incarceration for life. The Court in the case Faruku Mushenga v. Republic, Criminal Appeal No. 356 of 2014 (unreported) was guided by the interpretation of the phrase "shall be liable to' as it was stated in Opoya v. Uganda (1967) EA 752 by the defunct East Africa Court ofAppeal in the following manner: "It seems to us beyond argument that the words shall be liable to do not in their ordinary meaning require that imposition of the stated penalty but merely express the stated penalty which may be imposed at the discretion of the Court. In other words, they are not mandatory but provides a maximum sentence only and while the liability existed the court might not see fit to impose it." The undisputed facts as presented by the prosecution indicate that the offence was committed around midnight at Pasua Bar/cum guest house as per the facts narrated in the judgment hereinabove. 34 In light of the above facts, it is clear that the deceased was the one who provoked the accused by interfering in the accused's sexual affair, assigning his sexual partner to another man in front of the accused, refusing to repay the rental amount for the room and forcefully removing the accused from the guest house and eventually pushing and flooring the accused. It is also on record that on the 14th May 2023, the sixth day following the fateful incident the accused surrendered himself at Tarime Police Station where his statement was taken and confessed to committing the offence. He was also sent to a justice of peace before whom he confessed the commission offence. This shows that the accused cooperated with the relevant authorities in providing information relating to the commission of the offence (see Charles Mashimba v. Republic [2005] TLR 90). It is also noted that the accused has been remanded from the day he surrendered to the police which was 14/05/2023 to date 06/11/2024 which is more than seventeen (17) months. Now therefore, as indicated above, the law with respect to the punishment for the commission of the offence of manslaughter is section 198 of the Penal Code (supra) which provides for the maximum sentence of life imprisonment, the minimum sentence is not stated, it depends on the discretion of the court which must be exercised cautiously and prudently. See the case of Bahati John vs Republic(supra). This court, after considering both aggravating and mitigating factors stated herein above places this matter at a medium level of manslaughter because of provocation as demonstrated herein above, and that the accused 35 used unreasonable force in the reaction to what the deceased did to him. This is also according to the guidance provided in the Tanzania Sentencing Guidelines, 2023 which states that if the court categorizes the offence of manslaughter at the medium level, the sentencing range commences with a minimum of four (04) years imprisonment to a maximum of ten (10) years imprisonment. Under the circumstances of this case, the custodial term of the sentence would have been nine (09) years of imprisonment. However, the court takes into account the fact that the accused confessed to the police upon arrest after committing the offence. The accused also confessed at the first opportunity at the police and before the justice of the peace. Thus the I nine (09) years that the court considered imposing on the convict are reduced by one-third, that is three (03) years. After the said reduction, six (06) years of imprisonment remain. The Court of Appeal cases of Charles Mashimba v. Republic [2005] TLR 90 and Swalehe Ndungajilungu v. Republic [2005] TLR 94 are relevant. The court also considers other aggravating and mitigating factors, including the confrontation between the deceased and the convict, the nature of the weapon used, and the circumstances under which the offence was committed as detailed in the judgment, and which were instrumental in reducing the offence of murder to manslaughter. It follows that since said circumstances have already been considered by this court in finding the accused guilty of a lesser offence of manslaughter instead of that of murder, the same will not be considered in reducing the imprisonment term the court considers imposing on the convict. 36 The Court also has considered the accused's personal circumstances (i.e. young age). Further, the court also takes into account the time spent by the accused in remand since he surrendered to the police on 14/05/2023 to date 06/11/2024 which is more than seventeen (17) months, and thus the six years remaining are reduced by the said seventeen (17) months, (see the case of Swalehe Ndungajilungu v. Republic [2005] TLR 94). This means that Four (04) years and seven (07) months remain on the imprisonment term the court considered imposing. Therefore, this court sentences the accused to serve an imprisonment of Four (04) years and seven (07) months from the This sentencing order was delivered in the open court in the presence of Ms. Janet Kisibo, Senior State Attorney for the Republic, in the presence of Ms. Lilian Makene, Advocate for the accused, and in the presence of the accused/convict. KJKa^^bo^ Judge 06/11/2024 37