republic vs eliji hubert munisi 2006 tzhc 214 1 february 2006

IN TH E HIGH COURT OF TANZANIA AT MOSHI (ORIGINAL JURISDICTION) CRIM INAL SESSION CASE NO. 23 OF 2004 THE REPUBLIC VERSUS E L IJI HUBERT @ MUNISI Date:- 1/2/2006 Coram:- F.A.R. Jundu, J. For Republic - Mr. Hashim Ngole, S/A - assisted by Peter Maugo, S/A For Accused - Prof. Msanga, Advocate Accused:- Present in person and is under custody. C/C:- Eveline Information of M anslaughter C/S 195 of the Penal Code is read over and explained to the accused person in his own language and he is required to plead thereto:- Accused’s Plea:- It is true. C ourt:- Entered as a plea of guilty (PG) to the information of Manslaughter with which he is charged of. j F.A.R. JUNDU, JUDGE, 1/2/2006 Mr. Ngole:- The accused person herein, Eliji s/o Hebert @ Munisi stands charged with the offence of Manslaughter, Contrary to Section 195 of the Penal Code, Cap. 16 of the Revised Edition,2002. The accused person is a peasant and a resident of Marumu Telia Village within Hai District in Kilimanjaro Region. The deceased is one Dominic s/o Felician @ Mallya who was a nephew of the accused person and also a resident of the same village. On the 24th o f March, 2002 at or about 15.00 hours at Marumu Telia Village there was a meeting convened in the house of one Matei s/o Hubert @ Kirany who is also the deceased’s uncle. That meeting was also attended by different people including the deceased’s mother one Bertha w/o Felician and the accused person as witnesses. The sole purpose of the said meeting was for the convener of the meeting i.e Matei Hubert to receive some money from one Israel Ernest @ Kweka due to a sale of land previously done between them. The deceased was not in the meeting but he arrived later on to find the meeting is \ going on. Upon his arrival he openly protested the sale of his uncle’s land, whereas the accused person urged the deceased not to interfere with the meeting, him being a very young man and he did not understand what it was all about, this culminated with the exchange of nasty words and then a fighting ensued between the deceased and the accused person who joined forces with another person who is still at large. In effecting the beating they kicked off, blew some fists and pounced by using stones, which at the end left the deceased helpless. Later on the deceased was taken to Machame Police Station and finally at Machame Hospital whereupon he was admitted. While in hospital he made a statement (dying declaration) in which he mentioned the accused person and another person to be his assailants. Unfortunately the deceased died on 26th day o f March, 2002. An autopsy was conducted and a report there from established that death occurred as a result of “ Lung Shock due to Septacaemia caused by Ruptured Ileum”. My Lord, if the defence Counsel has no objection we pray to tender the Post Mortem Examination Report as part of our exhibit. Prof. Msanga:- No objection. Court:- Post Mortem Examination Report is hereby admitted as Exhibit “P .l”. F.A.R. JUNDU, JUDGE, 1/2/2006 Mr. Ngole:- My Lord, the accused person was arrested and then charged with this offence. That is all. Court:- Are the facts read over correct and do you admit them to be correct? Accused:- My Lord, the facts as read by the Republic are correct and I admit them without any qualification. I admit that on or about 24th day of March, 2002 around 15.00 hours at Tela Marumu Village, Hai District in Kilimanjaro Region, I did unlawful kill one Dominic s/o Felician Mallya in the circumstances detailed by the Republic in the facts read over to me in this court. Court:- Having heard the facts read over by the Republic which the Accused person has admitted them to be correct without any qualification, and upon earlier on pleading guilty to the information that was read over and explained to him, I find that it has been established that the Accused person is guilty of the offence of Manslaughter, in that he did unlawful kill one Dominic s/o Felician Mallya on or about 24/3/2002 at around 15.00 hours at Telia Marumu Village, Hai District Kilimanjaro Region. j I hereby convict him o f the said offence on his own plea of guilty and upon his own admission of the facts of the case read over to him by the Republic which he admitted to be true without any qualification. F.A.R. JUNDU, i JUDGE, 1/2/2006 Mr. Ngole:- My Lord, on the side of the Republic, according to the facts that we have, there is no record o f previous conviction of the accused person. But the fact is that confessing that he committed the offence, I would request this Honourable court to give him punishment as it would be fit. That is all. M itigations Prof. M sanga:- My Lord, on behalf of the Accused who is my client, I would like to make the following mitigations which I call upon this court to consider and take into account and give the Accused lenient punishment. First, My Lord, the Accused before you is a first offender. He has been a good \ citizen for most o f his life. We therefore, call upon this court to take the said factor into account. Secondly, My Lord, the Accused has pleaded guilty to the offence once the information was read over to him. This indicates as follows, first that the Accused is regretting for what he did to the deceased person, and secondly, it has helped this court to save its time, if he would not have pleaded guilty it would have necessitated fixing a hearing date. Further, it would have involved calling of witnesses which would entail expenses and costs thereto. It would also entail calling of the assessors which is another costs. He has also not caused any inconvenience to this court. Thirdly, My Lord, we call upon you to take into account the circumstances upon which the offence was committed. My Lord, the Accused and his fellow elders were in a meeting, suddenly the deceased appeared whereby he used abusive language to elders, the accused tried to prevent him from doing so, but the deceased emotionally kicked the j accused, his shirt was tom, his hand was pulled, and the deceased had a knife. My Lord, these circumstances shows clearly that the deceased had contributed to his own fate. My Lord, still there were many people who tried to prevent the deceased from making further assault or fight against the accused. Fourthly, another factor which we call upon this court to look into is the fact that the accused person has been in remand since 2002 which is about 4 years today. We call upon this court to take into account that the said period suffices to be a punishment to the Accused person. • v Fifthly, we call upon this court to look into the age of the Accused person. He is 70 years now, this age is on high scale especially taking into account life expectancy to be at 50 years of an ordinary Tanzanian. Therefore, an old man of his age, if will be given harsh punishment it will devastate him completely. Sixthly, My Lord, his health is not good, of recent years he has been greatly suffering from Blood Pressure. Also, the health of his wife is not good, she is also suffering from Blood Pressure, in which case she greatly needs to be with the accused to assist and comfort her. My Lord, we pray for mercy so that the two can live together for at least 4 to 5 years more. My Lord, for all what I have stated we pray for your mercy and that you act under Section 38 (1) of the Penal Code where by you have the power to completely discharge the Accused person. That is all. F.A.R. JUNDU, JUDGE, 1/2/2006 SENTENCE: The Accused person pleaded guilty and convicted for the offence of Manslaughter c/s 195 of the Penal Code in that he unlawfully killed one Dominic s/o Felician Mallya on or about 24/3/2002 around 15.00 hours at Telia Marumu Village, Hai District in Kilimanjaro Region. He admitted to the facts of the case that the same were true and correct without any qualification when the same were read over and explained to him by the Republic. I am now required to inflict appropriate punishment to the Accused person having heard from the Republic that the Accused person has no previous record of conviction and a number of mitigation factors that have been made by the defence counsel, Prof. Msanga. I have taken into account several matters that have been brought to my attention by the Republic and the defence counsel. I have taken into account that the Accused person has no previous record of convictions as submitted by Mr. Ngole, the learned State Attorney. This means and as rightly submitted by Prof. Msanga that the Accused person is a first offender. It is a settled principle that the court has to look a first offender with leniency. Indeed, Prof. Msanga stated that the Accused has been a good citizen for most part of his life. I have also taken into account and considered the fact that the Accused person at once pleaded guilty when the charge facing him was read over and explained to him. Indeed, I quite agree with the submission of Prof. Msanga that in doing so he has saved the time o f this court in any otherwise prolonged trial involving witnesses, lawyers and assessors. It has also saved expenses that would be necessary for the lawyers, witnesses and assessors. I have also taken into account and considered the circumstances upon which this offence was committed as submitted by Prof. Msanga. The deceased is said to have used abusive language, had a knife and had engaged into a fight with the Accused person. It can be said that the deceased contributed to his own fate. I have also taking into account and considered the fact that the accused person has been in remand since March, 2002 which is almost coming to 4 years, minus a few months. It is a lengthy period for an accused to be in remand waiting for trial of his case. I have also taken into account and considered the fact that the age of the Accused person is 70 years now. Indeed, a lengthy term of imprisonment may not be in his interest. Indeed, Prof. Msanga added that even the wife of the accused person is about 70 years. I quite agree that the wife badly needs the assistance and care of the Accused person and vice versa for the remainder of their life term. j I have also taken into account and considered that the health of the Accused person is not good. Prof. Msanga submitted that the Accused is suffering from Blood Pressure. So is his aged wife. In the circumstances, they need to take care of their health and assist each other. Mr. Ngole in his submission did not call upon this court to inflict a harsh or severe punishment on the Accused person but appropriate punishment only. On the other i hand, Prof. Msanga prayed to this court to exercise its powers under Section 38 (1) of the Penal Code to give the Accused person an absolute discharge. Having taken into account and considered all the above matters, I am of the view that the Accused person deserves a conditional discharge as set forth under Section 38(1) of the Penal Code. Therefore, I hereby discharge the accused person on condition that he commits no offence during a period of 12 months from today. However, let it be very clear to the Accused person that in the event he commits any offence during the said period of conditional discharge he will be liable to be sentenced for the original offence as this court may deem fit. It is so ordered. F.A.R. JUNDU, JUDGE, 1 /2 /2006 .