republic vs yusuph luta ndahani 2023 tzhc 16638 3 april 2023

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (MTWARA DISTRICT REGISTRY) AT MTWARA CRIMINAL SESSION CASE NO 33 OF 2022 > (P.I. Case No 5 of2021 in the District Court of Ruangwa at Ruangwa) THE REPUBLIC................... .PROSECUTOR VERSUS * M. ‘W YUSUPH LUTA NDAHANI...... .................. ..OhL............... ACCUSED A RULING ON SENTENCE 31/3/2023 & 3/4/2023 LALTAIKA,J: The prosecution story leading to the instant matter is that on the 27th day of November 2021 at-Chinongwe "B" Village within Ruangwa District in Lindi Region, [Yusuphs/o Luta Ndahani] did unlawfully kill one DITRICK S/O BETHOD MAJALIWA. Information on Manslaughter c/s 195 and 198 of the Penal Code Cap 16 RE 2022 was filed in this court accordingly. f When the matter was called for trial on Friday the 31st day of March 2023, Yusuph Luta Ndahani pleaded guilty as charged. Consequently, this court proceeded to convict him based on his own plea of guilty. The Sentence was reserved. The accused (now convict) has been brought to court this morning for delivery of this ruling on sentence hitherto reserved. Page 1 of 5 It is noteworthy that the convict is enjoying legal services of Mr. Ali Kassian Mkali, learned Advocate under state docket. The prosecutor Republic, on the other hand, had entrusted prosecutorial mandate to Ms. Kija Elias Luzungana, learned State Attorney. It can be gleaned from the facts read out by Ms. Luzungana thatthe convict was a watchman for a cashew farm located at Chinongo B-Village in Ruangwa District Lindi. In the night hours of the 27th day of November 2021 three persons went into the farm the convict was guarding, intending to steal raw cashew nuts. The convict approached them to find out what they were for but ended up being attacked and hit with, as piece of wood on the leg. The convict responded by cutting Dietrick Bethod Majaliwa (the deceased) by a panga on the hand. | In the next morning, the body of the deceased was found lying near the shamba. The body was taken to the hospital for postmortem examination and the cause of death, was stated as severe loss of blood. Ndahani was arrested and charged as alluded to above. He pleaded guilty as charged and has been consistent that he was defending himself from the three invaders who wantedtokillhim. No sooner had this court convicted Yusuph Luta Ndahani for manslaughter than the learned counsel submitted on aggravating and X. mitigating factors. Ms. Luzungana learned State Attorney prayed for a stiff sentence because "the killing had brought distress and destabilized the deceased's family." The learned defence counsel Mr. Mkali, on the other hand, argued that his client was in his workplace that was inherently Page 2 of 5 dangerous and that he was justified in defending himself from the invaders. He argued further that his client had been in remand custody since December 2021 thus he had learnt useful lessons. I have considered both aggravating and mitigating factors by the learned State Attorney and Defence Counsel respectively. lt is overwhelmingly clear to me that the convict had no other intention than to defend himself. The Blac's Law Dictionary 9th Edition at p. 1481 defines seif defence as "[t]he use of force to protect oneself, one'sfamily or one's property from a real or threatened attack.. ." ~ / As correctly argued by the learned defencecounsel, the work of a night- watchman is a dangerous one. The only option available to a night- . i % watchman invaded by, say armed robbers is summed up by a Kiswahili saying "Ama zangu ama zako"(itiseither me or you). J.J Child and G.R. Sullivan "The current state of^urder in English Law: A critique, wrong turns and all" in Chapter 4 in ReedjAllan and Michael Bohlander (ed) Homicide in Criminal Law: A Research Companion (Routledge, 2nd Edition 2020) ‘'Vs. expounds (. '"'Private persons and also officials such as police officers X and soldiers are permitted to use 'such force as is reasonable in the circumstances'by way ofself-defence or when preventing crime.” Nevertheless, our law requires sanity to prevail, and one is expected to avoid use of excessive force in the course of defending oneself. The need for balance was summed up by Lord Morris in Palmer v R [1971] AC 814, thus: Page 3 of5 "It is both good law and good sense that a man who is attacked may defend himself. It is both goof law and common sense that he may do so but may only do what is reasonably necessary. But everything will depend upon the particular facts and circumstances...Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack, it would not be common senseto permit some act of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril, then immediate defensive action may be necessary. If the moment is one in crisis for someone in immediate danger, he may have to avert the danger bysome instant reaction. If the attack is over and no sort ofperil remains, then the employment of force .may^beKp way of revenge or punishment or by way ofpaying offan old score or may be pure aggression. There may be no longer any link with a necessity of defence. C I./ Guided by the Tanzania Sentencing Manual (see p. 55), it is my considered view that the offence is Low Level Manslaughter. The offence, therefore, falls under use of unreasonable force in self-defence or property or person. The starting point as recommended in the Sentencing Manual is 4 years. The Sentence Range is Conditional Discharge to 4 years. Bearing in mind that use of a panga is indicative of excessive force, I would start the X, count at 4 years, However, I proceed as pleaded by the learned defence counsel, t6 reduce the 3 years already spent in remand custody. ^3 X ■Ss. X In the upshot, I hereby sentence YUSUPH LUTA NDAHANI to a term Of ONE (1) YEAR, imprisonment. It is so ordered. Page 4 of 5 E.I. LALTAIKA JUDGE 3/4/2023 Court: This ruling is delivered under my hand and the seal of this court on this 3rd day of April 2023 in the presence of Ms. Kija Elias Luzungana, learned State Attorney, Mr. Ali Kassian Mkali, learned defence counsel and the convict. E.I. LALTAIKA JUDGE 3/4/2023 Page 5 of 5