JGMT CHRISTOPHER KASHANA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA JUDICIARY BUKOBA SUB REGISTRY AT KARAGWE ORIGINAL JURISDICTION CRIMINAL SESSIONS CASE NO. 8007 OF 2024 THE REPUBLIC…………………………………………………PROSECUTOR VERSUS CHRISTOPHER KASHANA………………………………………………. ACCUSED JUDGEMENT OF THE COURT Date of last Order: 24/03/2025 Date of Judgment 24/3/2025 BEFORE: G.P. MALATA, J The Accused, Christopher Kashana stands arraigned for murder c/s 196 and 197 of the Penal Code, Cap 16 R.E. 2022 for causing death of one Jenetha Theonest. When this case came for trial parties appeared represented, the Republic appeared through Mr. Lugano Mwasubira learned Senior State Attorney assisted by Mr. Erick Mabagala learned State Attorney, whereas the accused appeared represented by Mr. Jackson Mustafa learned counsel. Accused was as well in attendance in court. The charge of murder was read over and explained to the accused and upon being asked to plead thereto, he pleaded not guilty to the offence of murder. 1 However, Mr. Jackson Mustafa learned counsel informed this court that, the accused was ready to enter plead guilty to a lesser offence of manslaughter c/s 195 and 198 of the Penal Code, Cap. 16 R.E. 2022. The offer encountered no objection from the Republic. As such, Mr. Erick Mabagala learned State Attorney prayed to substitute the charge from murder to manslaughter which prayer was granted. Upon the charge of manslaughter been read over and explained to the accused, he pleaded guilty to the offence and stated that; “Ni kweli kuwa nilimuua Jenetha Theonest bila kukusudia”. This court entered plea of guilty to the offence of manslaughter against the accused. The court invited the Republic to adduce facts of the case. Mr. Erick Mabagala learned State Attorney read over and explained the facts to the accused and court. The facts were to the effect that, the accused, Christopher Kashana is aged 45 years, a peasant, Msubi by tribe and Christian is resident of Mukubu village. The accused stand charged for manslaughter c/s 195 and 198 of the Penal Code, Cap. 16 R.E 2022. The deceased, one Jenetha Theonest was a wife of the accused. The incidence occurred on 27/08/2023 at Mukubu village, Ngara District. On 27/08/2023 at around 21:30 hours, the accused arrived at his house where he lived with deceased and their children. On arrival, accused was given food by the deceased. Upon finishing some food, the accused raised accusation against the deceased, that the deceased was engaging and providing lover affairs to another 2 man. The accusation led to conflict between the spouses and thereafter, the accused ties the deceased on her hands and started beating her and knifed her on various parties of the deceased’s body. The deceased lost life due wounds inflicted to her by the accused. Thereafter, the accused absconded. The incidence was reported to police station at Murusagamba Police Station. The police officers accompanied by Medical Doctor went to the scene of crime. The deceased’s body was examined and the cause of death was revealed to be due to total spinal transection and exsanguination due to stab wounds (multiple). Efforts to search for whereabout the accused yielded fruits and the accused was arrested where he had hidden. Upon being interrogated by police officers the accused confessed to have caused the death of deceased. Accused was charged for murder and today, the accused pleaded guilty to the lesser offence of manslaughter c/s 195 and 198 of the Penal Code, Cap. 16 R.E 2022. A report on Post Mortem Examination confirming cause of death of Jenetha D/O Theonest dated 28/8/2023 was tendered without objection from the defence side, thus admitted and marked as Exhibit PE1. In response to the facts read over and explained to accused by Mr. Erick Mabagala learned State Attorney, the accused replied and stated that; 3 “Maelezo yaliyosomwa na wakili wa serikali kuhusu mgogoro, wahusika, jinsi nilivyosababisha mauaji ya Jenetha d/o Theonest na chanzo cha kifo yote ni ya kweli na ni sahihi”. This court recorded the statement by the accused as shown herein above. Before finding accused guilty thence entering conviction, this court was placed to determine on whether the plea of guilty to the offence of manslaughter by Christopher Kashana, the accused is unequivocal or not. This court was guided by section 228 (1) and (2) of the Criminal Procedure Act, Cap.20 R.E. 2022. The section reads that; (1) The substance of the charge shall be stated to the accused person by the court, and he shall be asked whether he admits or denies the truth of the charge (2) Where the accused person admits the truth of the charge, his admission shall be recorded as nearly as possible in the words he uses and the magistrate shall convict him and pass sentence upon or make an order against him, unless there appears to be sufficient cause to the contrary. Moreover, in the English case of Marx v. People, 68 N.E 436 (1903), the court held that; “Under the plea of guilty, it was not necessary for the court to hear evidence to determine any matter fully set out in the indictment, as the plea, as shown by the record, is that plaintiff in error is "guilty of receiving stolen property, knowing the 4 same to have been stolen. In manner and form as charged therein." Nor do we think it necessary that the court shall hear evidence as to the value of the property where the indictment charges and specifies the value thereof, and the value is alleged as above $15, and it is sufficient that the larceny charged, by which the goods were obtained, is grand larceny, and the crime is a felony. When the plea is "Not Guilty," and the cause is heard by a jury, the defendant admits nothing, or if upon the trial he admits the larceny-that is, the taking of the goods-he does not admit that they were taken feloniously, or that they had any value, nor does he admit any other matter material to his conviction as charged in the indictment, but all matters not expressly admitted must be proved; and in such case the value of the property, being a material part of the offense as fixing the grade of the offense, must, under our statute, be proved, and found by the jury, that the court may know he is justified in imposing the penalty recommended by the jury, as was the practice in this class of cases prior to the enactment of the parole law, or to enable the court to determine what penalty to impose where the same is not fixed by the jury. But where the defendant pleads "Guilty," he pleads to every fact averred in the indictment, and there is neither law, reason, nor necessity requiring proof of the things admitted by the plea. ... The statute requires that, before such plea shall be allowed to be entered, the court shall fully explain to the accused the con- sequences of entering it (Hurd's Rev. St. 1901, p. 658, §424), and the record in this case shows that duty was 5 performed by the court. Under the indictment in question the court must have told the plaintiff in error that if he persisted in his plea, it would be the duty of the court to sentence him to the State Reformatory or to the Penitentiary, according to his age. With these facts before him, the plaintiff in error entered his plea; and to require testimony to establish that which the plaintiff in error by his plea admitted would be to require a useless thing, which the law does not indulge”. Also, in the case of State v. Branner, 149 N.C 559, 63 S.E 169 (1908), the English court stated that; “A plea of guilty is not only an admission of guilt, but is a formal confession of guilt, before the court in which the defendant is arraigned. It is in this respect altogether different from a full and voluntary confession formally made before a magistrate or to some other person. The latter is merely evidence of guilt… When the plea of guilty is formally entered to an indictment, no evidence of guilt is required in order to proceed to judgment, for the defendant has himself supplied the necessary proof. He has convicted himself. The judge could, therefore, have entered judgment upon the plea in this case in like manner as he could have done if there had been a formal verdict of guilty returned by a jury upon evidence”. To ascertain on accused’s unequivocalness plea of guilty or not, the Court considered the facts and evidence that; one, previously the accused was charged for murder c/s 196 and 197 of the Penal Code, Cap. 16 R.E 2022 for maliciously 6 killing one Jenetha d/o Theonest, two, when this case came for trial on 24/03/2025, the charge of murder was accordingly read over and explained to the accused whereby he pleaded not guilty to the offence, three, Mr. Jackson Mustafa learned counsel for the accused stood and informed the Court that, the accused was ready to enter plea to a lesser offence of manslaughter if the Republic has no objection, four, Mr. Erick Mabagala learned State Attorney on behalf of the Republic informed the Court that, the Republic had no objection to the prayer by the accused to enter plea of guilty to a lesser offence of manslaughter, five, Republic prayed to substitute the charge from that of murder to manslaughter which prayer was accordingly granted and manslaughter charge was substituted. Six, Upon the charge of manslaughter being read over and explained to the accused, he stated that: “Ni kweli kuwa nilimuua Jenetha Theonest bila kukusudia”. Seven, the facts of the case were read over and explained to the accused and in response thereto, accused quoted stating that: “Maelezo yaliyosomwa na Wakili wa serikali kuhusu mgogoro, wahusika, jinsi nilivyosababisha mauaji ya Jenetha Theonest na chanzo cha kifo yote ni kweli na ni sahihi”. Eight, this court took time to read over and explain the recorded response from the accused, he once again confirmed to the court that, the above quoted words were true and correct. 7 Based on the plea of guilty by the accused and uncontroverted facts and evidence, this Court is satisfied beyond sane of doubt that, the accused’s plea of guilty to the offence of manslaughter c/s 195 and 198 of the Penal Code, Cap. 16 R.E. 2022 is with no iota of doubt, unequivocal one. This court therefore proceeds to find the accused guilty for the offence of manslaughter. In the event, this Court finds the accused, Christopher Kashana guilty for the offence of manslaughter c/s 195 and 198 of the Penal Code Cap. 16 R.E 2022. Consequently, the accused is hereby convicted for the offence of manslaughter c/s 195 and 198 of the Penal Code, Cap. 16 R.E 2022 for causing death of one Jenetha Theonest. Thereafter, the court invited both counsels for antecedent and mitigation respectively. Mr. Lugano Mwasubira learned Senior State Attorney informed the Court that, the Republic has no previous criminal records of the accused. However, he pressed for stiff sentence for the reasons that; one, the accused unlawful terminated the life of deceased, two, the deceased left six children who became motherless following the accused’s unlawful act, three, accused used knife in stabbing the deceased which is a dangerous weapon, four, accused inflicted multiple injuries to the accused by using knife, five, deceased was found to have twelve stab wounds by the accused, six, accused used excessive force, seven, accused did not assist the deceased in any way but he absconded and eight, murder incidence has become predominant to Kagera region which need to be 8 deterred by imposing stiff sentence to accused found guilty thereof, thus providing a deterrence measures. On the other hand, Mr. Jackson Mustafa learned counsel for the accused mitigated for lenient sentence grounding that; one, the accused is a first offender thus innocent save for the only offence he stands charged, two, the death resulted from conflict between accused and deceased, the spouses on the allegations of deceased ‘s unfaithfulness in their marriage, three, there are six children who are parentless, the last child is aged three years whereas the older one is 15 years out of the six children, four, accused has been in custody for almost 18 months and five days, accused pleaded guilty at the police and before this Court thus serving time and resources of this Court and Republic. Having gathered antecedents and mitigation, this Court was left to determine on the appropriate sentence to the accused. When determining the appropriate sentence to be given to accused, in particular to an accused who pleaded guilty, the Court is guided by several factors, inter alia are; one, nature of the offence committed by the accused, two, circumstances under which incidence occurred, three, weapon used by the accused, four, gravity of wounds inflicted to the deceased, five, number of wounds inflicted on the deceased’s body, six, extent of force applied by the accused in causing death, seven, weapon used by accused if any, eight, against whom the blow was directed to woman or man, nine, accused’s conduct before, during and thereafter incidence, ten, Time spend by accused in custody, eleven, sentence provided by law to such offence, twelve, 9 discretion of the Court, if any to impose lesser sentence, thirteen, predominance of such crimes in the society and accused, fourteen, relationship between the accused and deceased and fifteen existence of dependents. In the present case, the undisputed facts of circumstances for the occurrence of the death of one, Jenetha d/o Theonest are; first, the deceased was found stabbed by knife twelve times, second, accused used knife in stabbing the deceased which is a dangerous weapon, third, the wounds inflicted thereto were severe one, fourth, the blow was directed to a woman who had no weapon to fight against the accused, fifth, accused and deceased conflicted on deceased’s unfaithfulness in the marriage, sixth, accused has been in custody for 18 months, seventh, accused has six children who need assistance from the accused for their survivorship, eighth, sentence provided by section 198 of the Penal Code for such offences is life imprisonment and nineth, the law permits Court’s discretion to impose lesser sentence. Having taken seriously consideration of antecedent and mitigations as presented to me by the counsels for the Republic and defence respectively. This Court is satisfied beyond sane of doubt that, the accused acted to rudely, unreasonably, using excessive force and dangerous weapon in stabbing the deceased, a woman who had no weapons to depend against. Without hesitations, this court finds that, the accused deserve no lenience in the way he acted upon thus terminating the deceased’s life. In the circumstances, it 10 is in the this Court’s settled mind that, justice will be seen to have been done to the accused for uncalled and unlawful act, if he will sentenced to serve Fourteen (14) years imprisonment. Consequently, the accused, Christopher Kashana is hereby sentenced to serve Fourteen (14) years imprisonment ORDER ACCORDINGLY. DATED at BUKOBA this 24th March, 2025. G.P. MALATA JUDGE 24/3/2025 JUDGMENT delivered at KARAGWE this 24th March, 2025 in the presence of Mr. Lugano Mwasubira learned Senior State Attorney and Mr. Jackson Mustafa learned counsel for the accused and accused himself. G.P. MALATA JUDGE 24/03/2025 11