NA TZHC Mwanza3

IN THE HIGH. COURT OF TANZANIA AT GEITA ORIGINAL JURISDICTION (Mwanza Registry) CRIMINAL SESSIONS CASE NO. 157 OF 2014 . THE REPUBLIC VERSUS MANENO S/O KULWA JUDGMENT R.V. MAKARAMBA, J. The accused, MANENO s/o KULWA stands charged with manslaughter c/s to Section 195 and 198 of the Penal Code. He is accused of unintentionally killing one Mabula s/o Magina, the deceased on the night of 02 nd February, 2013 at or ·about 03.00hrs at Bunyihuna Village within Mbogwe District Court in Geita Region. The post mortem examination report (Exh. P.4) shows that the deceased died of head injury which lead to massive bleeding. The accused has pleaded guilty to the charge. He confessed to killing the deceased but in self defence as per the cautioned statement, Exh. P.1 and the extra judicial statement, Exh. P.2. Pag·e 1 of 6 Briefly· the facts as narrated by the prosecution and to which the accused did not contest are that on the material night, the deceased who was a total stranger in the village of the accused, attacked one of his wives by trying to pull through the window a mosquito net. The accused who is a man married to two wives was on the material night sleeping in the house of his other wife which is on same compound, about 3 meters (as per sketch map, Exh. P.3). The other wife whose house the deceased invaded, raised an alarm and naturally her husband responded and went to . offer assistance. It is at that point in time the deceased tried to attack the accused by throwing a grinding pot (kinu) at the accused but missed him. The deceased also used a stick and tried to bit the accused with it which the accused managed to take it from the deceased and started to bit the deceased with it in various injuries including the head of the deceased and due to massive bleeding he died some few meters in a maize farm while trying to escape. Clearly this is a case of provocation. The accused, a man, 26 years of age, married to two wives, like any caring husband naturally went for the defence of his wife but ended up having to defend himself against ' attack from the invader. At 3.00 p.m, an attack on a house of a wife, any Page 2 of 6 husband would spring into action as indeed the accused did. It is rather unfortunate that the defence ended into death of the attacker, but surely the accused did not intend his action to cause death. The conduct of the accused after learning of the death of his attacker stands as proof that the accused felt remorse for his action. It is on that ground I find the accused guilty of the charge of manslaughter. I hereby convict the accused MANENO 5/0 KULWA for the offence of manslaughter as charged and will accordingly sentence him. Sgd: R.V. Makaramba Judge 10/08/2015 Mr. Mwasimba:- My Lord, on the part of the prosecution we do not have past conviction record of the accused. However, it is our prayer that the punishment as per the law be meted out on the accused for two main reasons. First, the force he used to defend himself was excessive. He was supposed to be moderate. Page 3 of 6 Secondly, in order to serve as deterrence to others would be offender. We pray that the sentence stipulated in the law be meted out on the accused .. MITIGATION: Mr. Mutalemwa:- My Lord, we pray that this Court in meting out sentence to the accused take into consideration the following factors:- First, the conduct of the accused to plead guilty since the event, · before the people who responded, before the police and extra judicial officer and even before this Court. All show that the accused is remorse for his action of killing Mabula s/o Magina. Secondly, the circumstances which lead to the death of the deceased. The deceased was author of his own death, as stated. Thirdly, it has been shown that the accused was provoked. Fourthly, it should be taken into consideration, the time the accused spent in custody. The record shows that the accused was arrested in February, 2013, so by estimate he has spent 2½ years in remand prison. Page 4 of 6 On our side we pray that this is sufficient period for the time spent in remand. Sixthly, the accused killed the deceased in self defence. My Lord, such circumstances under the law absolves accused from the offence. As per section 18 of the Penal Code, Cap. 16, the deceased was defending himself against his attacker. We pray that the accused should not be punished in the circumstances. SENTENCE The offence with which the accused was charged with and found guilty and accordingly convicted of carries a maximum penalty of life imprisonment. I have taken into consideration the prayer by the prosecution for a deterrent sentence. I have also considered the mitigating factors by the defence; the age of the accused; the fact of being first ·offender; the time he has spent in remand prison; the conduct of the accused of confessing to the charge and the fact of the circumstances of the case to wit, having been provoked and acting in self defence. Page 5 of 6 .. I All these factors are sufficient for this Court not to impose the maximum penalty. In the circumstances I shall order:- ORDER 1. The time of 2½ years the accused has spent in remand prison shall be sufficient and shall be taken as the time spent in prison after being convicted of the charge of manslaughter. 2. The accused person MANENO 5/0 KULWA shall henceforth be immediately released from prison unless he is being held for some other lawful reasons. JUDGE Page 6 of 6