republic vs masudi athumani kenelele 2023 tzhc 16637 3 april 2023

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (MTWARA DISTRICT REGISTRY) AT MTWARA CRIMINAL SESSION 18 OF 2022 (P.L Case No 7 of2021. In the District Court of Lindi at Lindi) 'Vi* —j- THE REPUBLIC.................................. .................PROSECUTION I4EH&/S MASUDIATHUMANI KENELELE ............. . ACCUSED .^.X, ix RULINGONSENTENCE 31/3/2023 & 3/4/2023 C LALTAIKA, 3 The accused (now convict) MASUDI ATHUMANI KENELELE and the deceased ASHA NANGOMWA NAMAHINDI were husband and wife respectively. They lived in Nyangamara Village in the District and Region of Lindi. ■%x,'>- 4 It is the prosecution's story that on 2/10/2021 the accused and the deceased had gone to a pombe shop "k/7abuni"where they drunk local brew. On their way back home, they quarreled. The accused hit the deceased on the head occasioning serious injuries. Page 1 of 6 The deceased was rushed to hospital, but her condition worsened. On 24/10/2021 she died. The accused was arrested, interrogated and he confessed having caused the death of the deceased. Postmortem examination revealed that the cause of death was brain injury. The accused was arrested, charged for manslaughter and when the matter came for trial on 31/3/2023 he pleaded guilty hence this ruling on sentence. . < It is noteworthy that the state had provided legal assistance to the accused though Mr. Ali Kassian Mkali, learned Advocate. This means, among other things, that the plea of guilty was based,on sound legal advise (See Adan v. R. [1973] EA 445). The Republic; on the other hand, had entrusted prosecutorial function to Ms. KijaElias Luzungana, learned State Attorney. No sooner had this court entered conviction than the learned State Attorney and the learned Defence Counsel submitted on aggravating and mitigating factors respectively. Ms. Luzungana stated that the convict had ended the life of a woman who had believed she was safe in the hands of her husband. The learned State Attorney argued that the accused's act of hitting a person in the head was a sure way of causing brain injury. Even if the convict was justified to fight back, reasoned Ms. Luzungana, he should have known that he was fighting with a woman. "A woman is weaker than a man", Ms. Luzungana emphasized. The learned State Attorney concluded her submission by drawing the attention of this court to Page 2 of 6 Section 198 of the Penal Code Cap 16 R.E. 2022 which provides for the sentence of life imprisonment for manslaughter. On mitigating factors, Mr. Mkali was rather brief. He stated that his client had been in custody since November 2021, learnt useful lessons and cxs that he was remorseful. The learned Defence Counsel emphasized that his client regrets having killed his lover who was his wife. He argued that the convict had shown such remorsefulness by taking his wife to hospital. Mr. Mkali concluded his submission by drawing the attention of this court to the fact that his client was a first offender as perk the record on previous convictions earlier on shared by the learned State, Attorney. I have taken into consideration both aggravating and mitigating factors by the learned counsel. I agree with Ms. Luzungana that the deceased met her death in the hands of a person who was supposed to protect her. This is echoed in the persuasive Kenyan Case of Republic v. Renard Ondingi Riaga [2015] eKLR (Okwany J.) thus. A "I n°te that the accused acted in a very cruel . ' ancj vjCious manner against his wife who he was IT supposed to protect from any harm. The action of . w the accused clearly demonstrates lack ofrespect not % only for women but also for human life and he must therefore not go unpunished..." '%n, ' ST . I agree with my brother in the bench his Lordship Okwany. Lack of respect for women and human life in general must not go unpunished. The maximum sentence for manslaughter, as alluded to by Ms. Luzungana, is life imprisonment. The law does not provide for the minimum sentence. This Page 3 of 6 calls for ingenuity in sentencing especially when the accused has confessed and is a first offender. The Court of Court of Appeal of Tanzania in Katinda Simba ©Ng'waninana v. R. Criminal Appeal No 15 of 2008 (unreported) describes this delicate process as follows: "The sentencing process is one of, if notthe most intractable and delicate tasks in the administration of Justice especially where the lawhasnot fixed a minimum sentence. This is where ingenuity and wisdom work together in crater to lead us to substantialJustice as no two cases are identical in all circumstances. This is al/ because there is no common yardstick or denominator for measuring the sentence which wilkrn^ch every crime." v % The received wisdom in the instant matter is that the convict cannot be sentenced to spend the rest of his life in jail, as proposed by the learned State Attorney. He is entitled to reduction of the sentence not only because he is a first offender (see*Arissol v. R. [1957] EA 447) but also, more importantly because he.has pleaded guilty. Guided: by the Tanzania Sentencing Manual (see p. 55), it is my considered view that the offence is High Level Manslaughter. It is a high- level manifestation of Violence Against Women (VAW). Borrowing from The ProtocQl to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, the National Plan of Action to End Violence Against Women and Children (NPA-VAWC) of Tanzania (2017-2022) defines violence against women as: Page 4 of 6 'All acts perpetrated against women which cause or could cause them physical, sexual, psychological, and economic harm, including the threat to take such acts; or to undertake the imposition of arbitrary restrictions on or deprivation of fundamental freedoms in private or public life in peace time, and during situations ofarmed conflict or war," Tanzania is committed to not only to protection of the right to life but Jv'iv also promoting respect for women. The convict had actechwith cruelty in fatally hitting his wife on the head. The starting point as recommended in the Sentencing Manual is 10 years. The Sentence Range is life imprisonment to 10 years. I would start the count at 10. Nevertheless, as pleaded by the learned defence counsel, I proceed to reduce the 3 years already spent in In the upshot, I hereby sentence MASUDI ATHUMANI KENELELE to a ten (10) years' imprisonment term. It is so ordered. EX LALTAIKA JUDGE 'S.j. 31/03/2023 ~ —> ’——J ■— Court: Thil 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. Page 5 of 6 E.I. LALTAIKA JUDGE 3/4/2023 Court The right to appeal to the Court of Appeal of Tanzania fully explained. E.I. LALTAIKA Page 6 of 6