r vs swalehe mombasa makala and 2 others 2022 tzhc 15159 5 december 2022

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (DISTRICT REGISTRY OF DODOMA) AT DODOMA SITTING AT SINGIDA CRIMINAL SESSIONS CASE NO. 23 OF 2020 THE REPUBLIC VERSUS 1. SWALEHE MOMBASA MAKALA 2. JUMAPILI MOMBASA 3. AMANI S/O KIULA RULING Date of Last Order: 05/12/22 Date of Ruling: 05/12/22 Mambi, J. The accused Persons (SWALEHE MOMBASA MAKALA, JUMAPILI MOMBASA and MANI S/O KIULA) were earlier jointly charged with murder of three deceased persons but in their plea, they admitted to have caused the death of the deceased without malice. The prosecution had no objection on the accused admission for an offence of manslaughter. i The accused were thus charged of manslaughter c/s 195 of the Penal Code, Cap 16 [R.E.2019]. The prosecution read the facts on charge of Manslaughter and the accused admitted all the facts. The prosecution facts briefly show that the accused persons were charged with three similar counts for murdering three deceased persons namely Mombasa s/o Makala, VAILETH D/O MANDI and JOYCE D/O AUGUSTINO on the 13™ of JULY in 2014 at Msagi Village within the District of Iramba and Singida region. Since the accused had pleaded guilty on the charge of manslaughter and basing on the charge and flanking facts from the prosecution, the accused was convicted of an offence of manslaughter c/s 195 of the Penal Code Cap 16 [R.E. 2019].Section 195 of the Penal Code Cap 16[R.E. 2002] provides that: "(1) Any person who by an unlawful act or omission causes the death of another person is guilty of manslaughter. (2) An unlawful omission is an omission amounting to culpable negligence to discharge a duty tending to the preservation of life or health, whether the omission is or is not accompanied by an intention to cause death or bodily harm". Before sentencing the accused, the prosecution submitted that they have no any previous criminal records for the accused. The State Attorney Ms. Elizabeth Belabela and Mr Songoro thus prayed this court to consider the punishment for the accused. The Defence through the defence Counses Mwiru, Salam Musa and Ndimbo jointly prayed mitigation to this court basing on the various reasons. Having convicted the accused person with an offence of manslaughter, the main issue in my view is to consider the appropriate sentence. 2 Having carefully considered the submissions from both parties including mitigation from the defence, I revert to consider an appropriate sentence for the accused persons. I have also read the facts and the circumstance of the death of the deceased to enable me to decide the appropriate sentence. The offence of manslaughter under which the accused persons stand charged is punishable for maximum of life sentence under section 198 of the Penal Code Cap 16 [R.E. 2019]. Indeed section 198 provides that "Any person who commits manslaughter is liable to imprisonment for life". Reading between the lines on the above provision of the Penal Code uses the words "liable" that means life imprisonment is the maximum sentence but the court has discretion to impose lesser offence depending on the circumstance of the case. In our case, given the fact that the death resulted from the quarrel and it was the first offence for the accused as admitted by the prosecution under the trial records, the court find it appropriate to consider lesser sentence. The records reveal that the accused persons had conflict, with the deceased persons but unfortunately such quarrel led to their death. This show the accused persons had no malice. Various decisions of the court show that where it is proved that the death resulted from fight or quarrel, the court should consider opting for an offence of manslaughter. I have also taken into account the time spent by the accused at remand prison (eight years). Basing on those factors and the circumstance of the deceased death, I find it proper for the accused persons to undergo the following sentence. 3 SENTENCE In terms of section 198 of the Penal Code Cap 16 [R.E. 2019] I the accused persons are years imprisonment. Ruling delivered of 05th ember, 2022 before all parties. AMBI MJUDGE 5/12/2022 4