JORAM BARTHOLOMEO JDGMT

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA JUDICIARY BUKOBA SUB REGISTRY AT BUKOBA ORIGINAL JURISDICTION CRIMINAL SESSION CASE NO. 91 OF 2025 THE REPUBLIC VERSUS 1. JORAM S/O BARTHOLOMEO 2. RAMADHAN S/O BARTHOLOMEO@MWOMBEKI 3. FREDRIKO S/O BARTHOLOMEO JUDGEMENT OF THE COURT Date of last Order: 11/02/2025 Date of Judgment 28/2/2025 BEFORE: G. P. MALATA, J The Accused, Joram S/O Bartholomeo, Ramadhan S/O Bartholomeo @ Mwombeki and Fredriko S/O Bartholomeo stood arraigned for murder c/s 196 and 197 of the Penal Code, Cap 16 R.E. 2022 for causing death of one Tyson S/O Martine., a Nyambo by tribe, peasant and resident of Chanika village, Karagwe District in Kagera region. The incident occurred on 1st June, 2024 at Nyaishozi area, Ihembe ward within Karagwe District in Kagera Region. 1 When this case came for preliminary hearing parties appeared represented, the Republic appeared through Ms. Elizabeth Twakazi learned State Attorney whereas Mr. Abel Rugambwa learned counsel appeared for all three accused persons. The charge of murder was read over and explained to the accused and upon being asked to plead thereto, they all pleaded not guilty to the offence. However, Mr. Abel Rugambwa learned counsel informed this court that, the accused were ready of 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, Ms. Elizabeth Twakazi learned State Attorney prayed to substitute the charge from murder to manslaughter which prayer was granted. Upon the charge of manslaughter being read over and explained to the accused, they all pleaded guilty to the offence by stating that; 1st accused: “Ni kweli kuwa niliua marehemu Tyson S/O Martine bila kukusudia” 2nd accused: “Ni kweli kuwa nilimua Tyson S/O Martine.bila kukusudia” 3rd accused: “Ni kweli kuwa niliua Tyson S/O Martine.bila kukusudia” This court entered plea of guilty to offence of manslaughter against all the accused persons. 2 In a nutshell, facts were read and explained to the accused that, the first accused persons, Joram S/O Bartholomeo, aged 36 years is a Nyambo by tribe, Peasant and resident of Ihembe II village within Karagwe District in Kagera Region. The 2nd accused person is Ramadhan S/O Batholomeo @ Mwombeki aged 34 years, a nyambo tribe, peasant and resident of Ihembe II village within Karagwe District in Kagera Region and the 3rd accused person is Fredriko S/O Batholomeo aged 38 years, a nyambo tribe, peasant and resident of Ihembe II village within Karagwe District in Kagera Region On the material date at night around 02:30 while Martine S/O Tibyapasha was with his wife Deonia W/O Martine heard Audax S/O Batholomeo calling him. He responded to the call and went outside the house and saw the accused persons with others namely, Audax S/O Batholomeo, Amemsenga S/O Naumen, Leonard S/O Wilberd, Akiba S/O Gregory and Byera S/O Katunzi carrying sticks. They told him that, they were looking for the deceased as he had stolen a cellular phone belongs to one Byera S/O Katunzi. Martine S/O Tibyapasha accompanied the accused persons looking for the deceased but he was nowhere to be found. Martine S/O Tibyapasha returned to his home around 05:00am. At around 06:00am Deonia W/O Martine the deceased being beaten on his various parts of the body by the many people including the 3 accused persons using sticks. She called her husband and Sarafina D/O Jacob who responded to the call, they also witnessed the deceased being beaten. They attempted to stopped the accused persons with other from beating the deceased but in vain. The accused persons and deceased’s father took the deceased to Ihembe village office. When they arrived at Ihembe village office the accused persons started beating the deceased again with sticks, the deceased’s father stopped them but in vain. Other people appeared at the village office and started beating the deceased for stealing a cellular phone. The deceased’s father left to his house and later he was informed that, Tyson S/O Martine was found dead. That, information was conveyed to police officers who appeared with clinical officer. The deceased’s body was examined and the report reveal that, the death was due to internal bleeding due to head injury. Today, the accused offered for plea of guilty to a lesser offence of manslaughter of which the Republic accepted, thence the charge of manslaughter contrary to section 195 and 198 of the Penal Code, Cap.16 R.E. 2022. Having the facts read over and explained to the accused persons, they all confirmed that; 1st accused’s response: “Maelezo yaliyosomwa na wakili wa serikali ni ya kweli kuhusu namna mauaji ya Tyson Martine yalivyotokea ni ya kweli 4 2nd accused’ response: ““Maelezo yaliyosomwa na wakili wa serikali ni ya kweli kuhusu namna mauaji ya Tyson Martine yalivyotokea ni ya kweli 3rd accused’s response:”Maelezo yaliyosomwa na Wakili wa Serikali ni ya kweli kuhusu mauaji yalivyotokea ni kweli”. Upon being satisfied of unequivocal plea of guilty by the accused, Joram S/O Bartholomeo, Ramadhan S/O Bartholomeo @ Mwombeki and Fredriko S/O Bartholomeo to the offence of manslaughter for causing the death of one Tyson S/O Martine as stated herein above, this court in terms of section 228 (1) and (2) of the Criminal Procedure Act, Cap.20 R.E. 2022, found all the accused guilty for the offence of manslaughter c/s 195 and 198 of the Penal Code, Cap. 16 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. Under the English legal position in Marx v. People, 68 N.E 436 (1903), the court held that; 5 “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 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. 6 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 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 7 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”. On the strength of the above, it is evident that, the court should not enter judgement upon plea of guilty unless is satisfied that, there is a factual basis for the plea. Now, based on the unequivocal plea of guilty arising from uncontroverted facts by the accused and having found the accused guilty for the offence of manslaughter as stated herein, this court entered conviction to all the accused for the offence of manslaughter c/s 195 and 198 of the Penal Code, Cap. 16 R.E. 2022. The court invited both counsels for antecedents and mitigation respectively. Ms. Elizabeth Twakazi learned State Attorney commenced by submitting that, the Republic has no previous criminal record of the accused persons. However, she prayed for stiff sentence for the reasons that; one, the accused acted illegally by terminating the deceased’s life following allegation of stealing cellular phone, two, the deceased was still young and three, accused used excessive force in beating the deceased, thence causing death. By way of mitigation by Mr. Abel Rugambwa learned counsel prayed for lenience sentence in favour of the accused for the reasons that, one, the 1st accused is still young aged 36 years with three children, two, the accused has been in custody for seven months. As to the 2nd accused is aged 34 years, two wives with six 8 children and has been in custody for seven months. As to the 3rd accused is aged 38 years and he has been in custody for seven months. He has one wife and three children, three, all the accused persons are first offender. Mr. Abel Rugambwa learned counsel further stated that, the accused persons are siblings from one father and mother. They were all providing assistance to their parents who are more than 80 years. The deceased was the son of their blood brother. That, the accused plead guilty to the offence of causing death of their blood relatives thus serving time and resources of both republic and judiciary. The accused’s plea demonstrates that, they feel so sorry for the incidence. That, the incidence occurred due to deceased’s act of stealing cellular phone. He finally stated that, the deceased was beaten by many villagers assembled at scene of crime and Village office. In the next day, the deceased passed away because of the said beating. Accused were arrested and charged for murder. He stated that, the accused have pleaded guilty to the lesser offence of manslaughter to bear the burden of many villagers who participated in beating the deceased. In view of the antecedents and mitigation from the both counsels respectively, it is undoubtedly, that the accused terminated the life of deceased. The circumstances under which the death occurred are well narrated by the Republic, among others are; one, deceased’s was arrested for stealing cellular phone, two, many villagers, the accused inclusive assembled at the scene of crime, three, the 9 assembled villagers, accused inclusive, whipped the deceased at various of parties of his body, four, that the reason for beating of the deceased was due to accusation of stealing a cellular phone, five, deceased passed away in the next day, six, accused were arrested for causing death of the deceased, seven, accused pleaded guilty to a lesser offence of manslaughter, eight, accused were not the only ones who inflicted blow to the deceased, nine, the accused together with other villagers not arrested illegally took law into their hands and caused death of the deceased. This court finds that, the accused together with other villagers not arrested acted illegally by whipping the deceased on accusation of theft. In determining the appropriate sentence for the accused for the offence in a particular case, courts have been taking into account several factors including; one, identifying statutory sentencing range for the offence – the maximum and minimum sentences in law, two, determining level of seriousness of the offence within the range, three, considering all relevant aggravating and mitigating factors for the offence, four, considering the accused’s personal circumstances, any other offences committed by accused, totality principle, co-accused’s sentence, any co- operation with authorities and information from the victim, five, considering predominance of the offence in the society, six, considering circumstances under which the offence took place, seven, considering range of force applied in terminating the deceased’s life. 10 Some of the above factors considered in the case of R. V. Kidato Abdala (1973) LRT 82 where the court stated; “The court has to consider several factors in sentencing including the record of the accused, the interests of society and those of the accused, the nature of the offence and its incidence in the locality”. Also, in the cases of Republic Vs. Musa Muganda (1990) TLR 9, Republic Vs Mohamed Mohamed (1987) TLR 34 and Republic Vs. Hussein Rajab (1982) TLR 302. In consideration of all the circumstances leading to the death, it is clear that, the conduct of the accused before, during and after commission of offence demonstrate that, they regret for uncalled for acts of causing the death their siblings, the son of their blood brother. Moreover, it is evident as per the facts read over by the Republic that, many villagers assembled and inflicted blow to the deceased for uncalled for behaviour of stealing cellular phone. All said, this court finds that, the accused with other villagers who have not been arrested had a blamed for taking law into their hands. However, the death was not premeditated in all circumstances. It is evident that, the accused bear the burden on behalf of other villagers who also participated in whipping the deceased. The accused spend more than seven months in custody till todate. In the 11 consideration of all circumstances and time spent by the accused persons in custody, this court is of the settled view that, they deserve lenience sentence. In the case of People v. Brown, 140 cal.App.616 36P 2d 194 (1934), the English court said that; “The plea of guilty precluded any such inquiry or taking of evidence as suggested by appellant, because such plea was a conclusive admission of his guilt of the crime charged as against him... We do not desire to be understood as saying that one may be convicted upon his confession alone without further proof of the corpus delicti; but the plea of guilty in this case removes from consideration of such question. The examination of witnesses for this purpose does not constitute a trial in the ordinary sense of the word. The hearing is not for the purpose of determining guilt or innocence but has for its sole object the determination of the degree of punishment of the prisoner in the light of the circumstances surrounding him…. In deciding this question, this court has held; it is not confined to the evidence showing guilt, for that issue has been settled by the plea. The rules of evidence which ordinarily obtain in a trial where guilt is denied do not bind the court in its inquiry. It may look to the facts of the killing and it may search anywhere within reasonable bounds for other facts which tend to aggravate or mitigate the offence” 12 The general law as stated in 24 Corpus Juris Secundum, criminal law of England provides that; “In the absence of a statute to the contrary, where accused enters a plea of guilty, or of nolo contendere, the court has the power and duty to pronounce judgment …….” As matter of law as stated herein above, this court hereby proceeds to enter judgement on plea of guilty and sentence the accused persons for the offence of manslaughter c/s 195 and 198 of the Penal Code, Cap. 16 R.E. 2022. Consequently, I hereby sentence, Joram S/O Bartholomeo, Ramadhan S/O Bartholomeo @ Mwombeki and Fredriko S/O Bartholomeo, the convicts to serve one (1) year conditional discharge. Further, it is ordered that, during that period, the accused shall not commit any offence, and in case they commit and convicted, they shall in addition serve a sentence of one (1) year imprisonment imposed herein. IT IS SO ORDERED. DATED at BUKOBA this 28th February, 2025 G. P. MALATA JUDGE 28/02/2025 13 JUDGEMENT delivered at BUKOBA this 28th February, 2025 in the presence of all parties. G.P. MALATA JUDGE 28/02/2025 14