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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI CRIMINAL SESSION CASE NO. 89 OF 2022 REPUBLIC VERSUS MICHAEL S/O KILIPA MFOI JUDGMENT 26/02/2024 & 01/03/2024 SIMFUKWE, J. The accused person MICHAEL S/O KILIPA MFOI stand charged with the offence of Manslaughter contrary to section 195 and 198 of the Penal Code, Cap 16 R.E 2022. The accused is alleged to have unintentionally caused the death of one Salvatory s/o Michael Mfoi on 20/05/2022 at Kibosho Umbwe area, within Moshi District in Kilimanjaro Region. The accused person pleaded not guilty to the charge. During the preliminary hearing there was nothing material to the charges which was undisputed. 1 The prosecution called six witnesses to prove the charges against the accused person: Dr. Tumaini Mtui (PW1), Mrs Donata Michael Mfoi (PW2), Mr. Adam Sinkara Mfoi (PW3), Mr. Anthony Clemence Mfoi (PW4), G. 2362 DC Kabelwa (PW5) and E. 8872 D/SGT Issa (PW6). Also, the prosecution produced three exhibits: a Post-Mortem Examination Report prepared by PW1 (Exhibit P1), a sketch map of the scene of crime (exhibit P2) and cautioned statement of the accused person (exhibit P3). PW1 Mr. Tumaini Mtui testified among other things that he was a medical doctor. On May 2022 he was stationed at Emergency Department at Mawenzi Hospital. His daily responsibility was to attend patients and conduct post mortem examinations. On 24/5/2022 during working hours he was at work at Mawenzi Hospital. In the afternoon, one police officer went with an order which required PW1 to conduct an autopsy. They left together with the relatives of the deceased and went to the mortuary. The mortuary attendant required the relatives of the deceased to identify the body of their relative. The relatives identified the body of their deceased relative. Then, they went to the examination room. During the examination, they remained with the police officer and one relative. They discovered that the deceased had 2 injuries on various parts of his body. His right hand was fractured. Also, he had wounds on his stomach and chest. He had bled from his nose. It was concluded that the cause of death was big wounds on the head and internal bleeding in the stomach. After examination, PW1 filled the Post Mortem examination Report. PW1 said that, the deceased was an adult male person of African origin. PW1 identified the report which he had prepared after conducting an autopsy. He identified his handwriting, signature and official seal of Mawenzi Hospital. He prayed to tender it as exhibit. It was admitted as exhibit P1. PW2 Mrs Donatha Michael Mfoi gave a testimony that she was a resident of Foini village. On May 2022, she was staying with her husband and their son Salvatory Michael. She said that meanwhile, his son Salvatory is deceased. She went on to testify that, on 19/5/2022 at about 15:00hrs, she was at home. While at home, Francis Mfoi (accused herein) went and asked whether Salvatory was present. PW2 replied that Salvatory was absent. PW2 asked what he wanted to tell him, he replied that he would know when he finds him. At about 23:00hrs four people knocked the door. Michael (accused) ordered PW2 to open the door, she told him that she 3 won’t open unless they go with the hamlet Chairperson. They refused and broke the door. They took Salvatory from the bed and took him outside the house. They were four of them. PW2 identified Michael Kilipa, Shukuru John Jackson and Dickson. After they had taken Salvatory outside, PW2 followed them as she did not know where they were taking him. When they reached to Francis, they told Francis that they had brought him. They took him inside the house. Francis ordered them to punish him until he spoke the truth. PW2 explained that it was Michael and his fellows who were ordered to punish Salvatory. They were told that “Mshughulikieni mpaka aseme.” PW2 testified further that, they assaulted him by using clubs. She begged that man that they should not kill him and that they should take him to responsible authorities. Then, Francis took his motor vehicle and ordered Michael and his fellows to take Salvatory into that motor vehicle. After they had taken him in the vehicle, PW2 went back home as she did not know where they were taking him. At about 04:00hrs PW2 saw a vehicle at their homestead. The man called her “mama!” The man introduced himself as a police officer. PW2 was asked if she could write, she said that she was illiterate. They returned 4 Salvatory and required PW2 to take him to hospital. Salvatory was required to report at the Police Station after recovery. At about 5:00hrs PW2 heard a honk of Francis collecting passengers. She went to the road, when Francis came back, she stopped him and required him to take her son to hospital. He asked whether they had returned him, PW2 said yes. Francis replied that a thief cannot die. Then, he left. At about 06:00hrs Salvatory passed away. PW2 explained that she managed to identify people who went to take her son because they had torches and their house had solar lights which were bright enough. Also, PW2 knew them even before since their childhood, they have been raised there. She elaborated that the act of taking Salvatory took about half an hour. She said that she never had grudges with any of the four people who took her son. She identified the accused herein as Michael Kilipa. PW3 Adam Sinkara Mfoi a hamlet chairperson of Chamini, stated inter alia that, on 20/5/2022 at 01:00 hrs he was at home when he heard a honk of the car. He went outside and saw a hiace. Francis appeared and told PW3 that he had brought a suspect. Francis Mfoi had Michael Kilipa, Shukuru, John Paul and Dicksoni Ng’wili Mfoi in the vehicle. The suspect was Salvatory Michael Mfoi. PW3 said that Salvatory could not move, he 5 was sitting in the vehicle unable to stand. PW3 just ordered them to take him to the police station. He averred that, he managed to identify them through the light which was very bright outside his house. He elaborated that it was electricity light and that the exercise took half an hour. He was standing two steps from them and there was no hindrance between them. Moreover, he knew them even before because they were indigenous of that place. PW3 knew them for a long time. On 20/5/2022 in the morning at about 10:00hrs PW3 heard noise from the homestead of Michael Mfoi. He responded to the alarm and went to the homestead of Michael. Donata the wife of Michael informed him that Salvatory had passed away. She said that the cause of death was Francis Mfoi, Michael Kilipa, Shukuru and Dickson. Then, PW3 made a phone call to the clan chairperson Anthony Mfoi and the village chairperson. They discussed and made a phone call to the police station. Police officers went there and interrogated civilians and the mother of the deceased. They were required to board the police motor vehicle and took the body of the deceased to Mawenzi Hospital. On 24/5/2022 PW3 and other relatives identified the body of Salvatory the deceased, at Mawenzi Hospital. He said that the deceased was the son of his uncle (baba mdogo). 6 PW3 identified the accused person Michael Kilipa who was in the dock. He said that he had no grudges with him. PW4 Anthony Clemence Mfoi was among the relatives who responded to the alarm and identified the body of the deceased Salvatory Michael Mfoi at Mawenzi Hospital. PW5 G. 2362 DC Kabelwa testified that he was a police officer at Criminal Investigation department. In 2022 he was stationed at criminal investigation department in Moshi district. He had a working experience of more than 15 years. His responsibilities included prevention of crimes, combating crimes. patrol and investigation of criminal cases. On 20/5/2022 during working hours, PW5 was called by the OCCID Afande Leons Mwamunyi. He told him that they should go to Kibosho as there was an incident of murder. They boarded the motor vehicle and headed to Kibosho - Umbwe. They arrived at Kibosho at about 11:00hrs or 12:00hrs. At Kibosho, they found that there was a murder incidence of one Salvatory Mfoi. The body of the deceased was at the homestead of his father. While being led by the OCCID, they were informed by the mother of the deceased that she saw one of those who participated to kill her son. The OCCID directed PW5 to go with the mother of the deceased 7 so that she could show him the said suspect and arrest him. PW5 complied to the directives of the OCCID and went to the suspect. He did put him under arrest and introduced himself as a police officer. The suspect was asked his names, he introduced himself as Michael Kilipa Mfoi. PW5 informed him that he was suspected to had murdered one Salvatory Mfoi. Thereafter, they proceeded with inspection of the scene of crime while the suspect was under arrest. They took the body of the deceased together with the suspect in the police vehicle. At the scene of crime, PW5 drew the sketch map of the scene of crime and recorded the statements of some of the witnesses who were present at the scene. Thereafter, they took the body of the deceased to Mawenzi Hospital and the suspect was taken to central Police Station at Moshi at the CRO. (Charge room). Then, they handed over the suspect to the police officer who was in charge at the CRO, for taking the suspect in the lock up. On 21/5/2022 PW5 received a case file IR 4119 which concerned a murder case so that he could proceed with investigation. The suspect was Michael Kilipa Mfoi. The deceased was Salvatory Mfoi. PW5 continued with investigation. He took the suspect from the lock up so that he could get some hints from him. During interrogation, the suspect confessed to had 8 participated to commit the offence together with his fellows. His fellows were mentioned to be Shukuru, Dickson, Francis and Lelo. PW5 made follow up, he was informed that all of them had escaped to Tanga and Singida. After collection of evidence, PW5 referred the case file to the OCCID for preparation of the charge sheet. He identified the sketch map which he had drawn and prayed to produce it as exhibit. It was admitted as exhibit P2. PW6 E. 8872 D/Sgt Issa stated that he was a police officer at Criminal Investigation Department at Moshi Central Police station. On May 2022 he was stationed at the same station and department. He had 17 years working experience. His responsibilities included prevention and combating crimes, arresting criminals and investigation of criminal cases. On 20/5/2022 in the afternoon PW6 was in the office at Central Police station at Moshi. He was assigned different duties including interrogation of the suspect of a murder case one Michael Mfoi. PW6 went to the CRO and satisfied himself that the suspect was in the lock up. Then, he prepared a place for interrogating the suspect. Thereafter, he went to the CRO and took the dentetion register and signed. PW6 required the CRO 9 in charge to hand over that suspect to him for interrogation. He took the suspect to the office for interrogation. PW6 went on to state that, the suspect was physically fit. When they reached in the office, PW6 introduced himself to the suspect, he mentioned his force number and his names. He also required the suspect to introduce himself. The suspect introduced himself as Michael Kilipa Mfoi. Then, PW6 informed the suspect the offence of which he was suspected, that is murder. He told him that he wanted to record his statement. He informed him his basic rights and asked him if he could give his statement while alone or if he wanted to call his relatives, friend or a lawyer. He opted to give his statement while alone. Also, PW6 informed the suspect that he had a right to read his statement. He informed him that he should give his statement voluntarily as the same could be used as evidence against him in court. The suspect voluntarily admitted to give his statement. After PW6 had warned him, he signed by using a right thumb print. Then, he informed the suspect that they were starting to record his statement. They used the format of question and answer. In the said statement, the suspect confessed that he was part of those who killed Salvatory Michael. After they had finished, PW6 read over the whole 10 statement and the suspect admitted that the statement was correct. Then, PW6 gave him the statement and he signed by a right thumb print on each page. Finally, PW6 recorded the verification of which the suspect also signed by a right thumb print. PW6 also recorded his verification to have recorded that statement and signed. The statement was recorded from about 15:30 hrs to 17:04 or 17:05 hrs. PW6 identified the statement of the accused which he recorded. That, it had the name of the accused Michael Kilipa Mfoi, his names and force number, signature and handwriting. He prayed to tender it as exhibit. The defence counsel had no objection. It was admitted as exhibit P3. PW6 also identified the suspect Michael Kilipa Mfoi whom he recorded his statement. He said that he never knew him before and had no grudges with him. The accused person Michael Kilipa Mfoi was found with the case to answer. He defended himself on oath. He stated inter alia that he knew the deceased Salvatory as his relative who died on 20/5/2022. He was killed by civilians on suspicion that he was a thief. He said that, it was not true that he participated to kill 11 Salvatory as he was a militiaman/sungusungu. It was about 20:00hrs when Francis Alex Mfoi went and found the accused at his office. The said Francis Alex Mfoi asked the accused to escort him to Salvatory Michael Mfoi. They missed Salvatory at his homestead. Then, they returned to his workplace, where he sells mbege (local brew). At about 21:00hrs the son of Salvatory informed them that Salvatory was back. Francis Alex Mfoi followed Salvatory in the company of civilians. The civilians together with Francis Alex Mfoi took Salvatory. They took him to Francis Alex Mfoi. After they had taken Salvatory to Francis Alex Mfoi, the accused went back to his workplace, closed and went to rest. Responding to the charges against him, the accused said that it was not true that he was holding Salvatory when he was being assaulted by civilians. He informed this court that Salvatory was killed by civilians and Francis Alex Mfoi. After the death of Salvatory the accused was told that he was under arrest, he cooperated with police officers. Then, he was informed that he participated to kill Salvatory Michael Mfoi. He was taken to central Police station where he was kept in the lock up. Thereafter, he was taken out for interrogation. He alleged that during interrogation he was assaulted by police officers who forced him to 12 confess that he participated to kill Salvatory. He was forced to sign by using his right thumb print after being tortured. He concluded his defence by stating that he did not participate to kill the deceased, he was a watchman as a sungusungu. During cross examination, the accused admitted that he participated to arrest the deceased and that he was in that group which assaulted the deceased. That marked the end of testimonies of both parties. Having considered evidence of both sides, I am satisfied that the following facts were not disputed by both parties during the trial: 1. That the deceased person Salvatory Michael Mfoi, died unnatural death and that the cause of death was severe head injury with intra- abdominal bleeding. 2. That the accused person participated to arrest the deceased. Section 195 (1) of the Penal Code (supra) provides that: “195. -(1) Any person who by an unlawful act or omission causes the death of another person is guilty of manslaughter.” From the above provision, the prosecution has the onus to establish through evidence the elements of the offence of Manslaughter which are: 13 death and the involvement of the accused as the person who unintentionally caused the death by an unlawful act or omission. In the case of Lusungu Duwe v. Republic, Criminal Appeal No. 76 of 2014 [16 June 2014] TZCA at page 11 and 12 the Court echoed the ingredients of the offence of Manslaughter as follows: “The offence of manslaughter is deemed to be proven where the prosecution advances evidence capable of establishing that: - 1. The deceased had died. 2. The death of the deceased was unlawfully caused by the accused and 3. The unlawful act or omission which caused death of the deceased was unintentional and without knowledge that death or grievous bodily harm was a probable consequence.” In the case at hand, the deceased was suspected to be a thief. In the cause of his arrest, he was assaulted by a mob to the extent of causing grievous harm which culminated into his death few hours after the assault. The accused herein is said to be among the mob which assaulted the deceased. PW2 the mother of the deceased stated before the court that the accused Michael Kilipa was among the four people who took his son from her homestead at night. She said that, she followed them and when 14 they reached at Francis’ homestead, Francis Alex ordered Michael Kilipa and his fellows to deal with the deceased until he spoke the truth. PW2 stated that they did assault his son by using clubs and then left with him in the vehicle of Francis the organizer of the incidence. Later, police officers returned the victim to his parents so that they could take him to hospital. Unfortunately, before being taken to hospital, he succumbed to death due to the injuries he had sustained. Although the tragedy took place at night, PW2 explained how she managed to identify the perpetrators through the solar lights and she informed this court that she knew them since their childhood. The scene of arresting the deceased persisted for about half an hour. Also, the accused admitted that he participated to arrest the deceased. In the circumstances, identification of the accused person was not at issue at all. When she was cross examined by the Defence Counsel, PW2 stated inter alia that she saw Michael the accused herein assaulting Salvatory (deceased) with a club. Evidence of PW2 was supported with the testimony of PW3 Adam Sinkara the hamlet chairperson who saw the victim after the assault when he was taken to his homestead, PW5 the investigator of the case who interrogated PW2 and arrested the accused herein and PW6 the police 15 officer who recorded the cautioned statement of the accused person. The cautioned statement of the accused was produced as exhibit, it was admitted without being objected by the defence counsel. At page 3 of the cautioned statement the accused stated inter alia that: “JIBU: Nimekamatwa ni kwa sababu nimehusika kwenye kumuua mtu aitwaye SALVATORY S/O MICHAEL. SWALI Je ni kwa nini iliamua kumuua huyo SALVATORY MICHAEL. JIBU Ni kwa sababu alikuwa ni mwizi wa ndizi kwenye shamba la FRANCIS S/O ALEX LWETA.” At page 5 of the cautioned statement, fourth line from the bottom, the accused when asked why did he kill while he knew that it was unlawful, he replied that he did not know that death would result. In his defence, the accused denied to have committed the offence and repudiated his confession. However, he admitted to have participated to arrest the deceased as a sungusungu. During cross examination, at some point, he admitted to have participated to assault the deceased and said that he did not anticipate that the said assault would cause death. Guided with the above quoted authorities and evidence adduced by both sides I ask myself the following questions: 16 1. Is Salvatory Michael Mfoi died? 2. Was the death of the deceased unlawfully caused by the accused and 3. Was the unlawful act or omission which caused the death of the deceased unintentional and without knowledge that death or grievous bodily harm was a probable consequence? Starting with the first question, as I have already stated, the fact that Salvatory Michael Mfoi is died and that his death was caused by the assault inflicted on him, was undisputed. Moreover, evidence of PW1 and exhibit P1 proved beyond reasonable doubts that the deceased died unnatural death. On the second question whether the death of the deceased was unlawfully caused by the accused person; based on the evaluation of evidence of both the prosecution and the defence, I am absolutely convinced that the accused participated to assault the deceased and hence unlawfully caused his death. The contents of the caution statement which was admitted without objection, support my findings. As quoted above, the contents of caution statement suggests that the accused admitted to have participated in the incident. In numerous decisions, this court as well as the Court of Appeal has pronounced that if the exhibit is admitted without 17 objection, it means the accused has admitted to its contents. In the case of Selemani Hassan vs Republic, Criminal Appeal No. 364 of 2008 (Unreported) which was quoted by the Court of Appeal in the case of Halfan Rajabu Mohamed vs Republic, Criminal Appeal No. 281 of 2020, it was held that: “It is true that a statement will be presumed to have been voluntarily made until objection is made to its admissibility by the defence.” Even if his cautioned statement and defence is set aside, evidence of PW2 was watertight and I strongly believe that the same leaves no doubt that the accused herein unlawfully caused the death of the deceased. She followed the perpetrators after they had taken his son just like Mary the mother of Jesus did when Jesus was crucified. There is no way she could have mistakenly identified the accused as she knew him very well. It is very unfortunate that other perpetrators are still at large. On the last issue whether the unlawful act or omission which caused the death of the deceased was unintentional and without knowledge that death or grievous bodily harm was a probable consequence; in his cautioned statement the accused clearly stated that he did not anticipate that death would be a probable consequence. Furthermore, the accused stated in his confession that the deceased was punished so that he could 18 tell where he had sold bananas which he had stolen from one Francis Alex. Despite the fact that the accused is related to the deceased, he participated to arrest him as a sungusungu. From my point of view, the accused and his fellows had not intended to end the life of the deceased. Thus, they caused death unintentionally. Based on the above findings, I find the accused person Michael Kilipa Mfoi guilty of the offence of Manslaughter contrary to section 195 and 198 of the Penal Code, (supra). I therefore convict him as charged. Dated and delivered at Moshi, this 01st day of March 2024. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 01/03/2024 19