criminal decision 2024 Majaliwa Paulo

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MWANZA CRIMINAL SESSION NO. 43 OF 2022 REP .............................. COMPLAINANT / APPELLANT / APPLICANT VERSUS MAJALIWA PAULO .............................. RESPONDENT / DEFENDANT JUDGMENT A. MATUMA, J The accused person herein, Majaliwa Paulo is charged of Murder contrary to section 196 and 197 of the Penal Code (Cap. 16 R.E. 2019). He is alleged to have murdered his own mother one Mariana Mabindo on the 10th day of September, 2021 at Ntinachi village within the District and Region of Geita. The prosecution owed a statutory duty to prove the offence under five ingredients, each beyond reasonable doubts. These are; that the death was actually caused or that it is indeed that Mariana Mabindo is dead, that the death was not natural, that the death was caused by an unlawful act or omission, that it is the accused person who did the unlawful act or omission and that the accused caused the alleged death with malice afore-thought. To substantiate the charges against the accused person, the prosecution brought a total of five witnesses and tendered three documentary exhibits namely; Post Mortem Examination Report (exhibit P1), Cautioned Statement (exhibit P2) and extra judicial statement (exhibit P3). The accused person was the only witness for the defense. The summary facts of the matter are to the effect that on the 10th September, 2021 around 19:00 hours, the accused was at his rented home going on with his own businesses. His mother now the deceased arrived there and told the accused that she has come to pick the bicycle allegedly that such bicycle make Avon was the property of her daughter one Pendo Paulo. The accused who maintained that the bicycle was his own property refused to handle such bicycle to his mother. The deceased forcefully entered inside and took the bicycle outside. The accused held the bicycle preventing his mother to go away with it. Each of the two started contesting for the bicycle (wakaanza kunyang’anyana). In the cause of such scrambling the deceased who was elderly fell down and it is said that the accused took a stick and assaulted her on the left leg which got broken and on the left shoulder which became dislocated. She was taken to hospital but in no time, she passed away of hypovolemic shock due to severe bleeding. The evidence of both sides shall be referred during the determination of each issue and or elements of the offence. Page. 1 Hon. ATHUMANI MATUMA During trial the prosecution was represented by Mr. Godfrey Odupoy and M/s Kabula Benjamini learned state attorneys while the accused was represented by Elizabeth Msechu learned advocate. Starting with the first issue as to whether the death was actually caused or whether indeed Mariana Mabindo is dead, I find this issue to have been sufficiently proved. There is identical evidence of PW1 Damas Kurwa Masanja who was the hamlet chairman and who assisted the victim to Police and later to hospital but later the deceased passed away. There is also the evidence of exhibit P1 the Post Mortem Report through which Mariana Mabindo was identified dead and her body examined in which the cause of death was established to be hypovolemic shock due to severe bleeding. This fact is not even disputed by the accused person. I therefore conclude this element that Mariana Mabindo is actually dead and is no more. As about the second element as to whether the death was not natural, I have no doubt that such death was not natural. It is in evidence that the deceased died of hypovolemic shock due to severe bleeding and that resulted out of inflicted injuries in which her leg got broken and shoulder got dislocated. I accordingly find out that the death of Mariana Mabindo was unnatural. As about the third element as to whether the death was caused by an unlawful act or omission, the answer is yes. The injuries sustained by the deceased as a result of the assaults which subsequently led to the death in question were unlawfully inflicted. I therefore find the element in the affirmative that the death in question was caused by unlawful acts. As about the fourth element as to whether it was the accused person who did the unlawful act or who caused the death in question, it is undisputed fact that it was the accused who caused such death. That is established by the prosecution’s evidence and the accused himself. PW1, PW3 G.8305 CPL Simon and PW4 F.1159 D/SGT Samson all had time to speak with the deceased and the deceased told them that it was the accused who assaulted her in a contest for the bicycle. The accused also admitted in both his cautioned statement and extra judicial statement that he confronted his mother in an attempt to prevent her from taking away the bicycle. In the cause of such confrontations the deceased got injured and subsequently died. It is therefore without doubt that it was the accused in the dock who caused the death of his own mother. The last element or issue is whether the accused killed his mother with malice aforethought. In the case of Enock Kipela v. The Republic, Criminal appeal no. 150 of 1994 it was held that normally an attacker will not declare his intention to cause death or grievous harm. Whether or not he had that intention it must be ascertained from various factors including the following;- the type of weapon, the amount of force applied, the part or parts of the body where the blow or blows were directed or inflicted on, the number of blows although one blow may be sufficient for the purpose of establishing the intention to kill, the kind of injuries inflicted, the utterances if any made before, during or after killing and the conduct of the attacker before and after the killing. Applying those factors on whether the accused intended to kill his mother Mariana Mabindo, I find that there is no evidence on record to prove malice aforethought of the accused in the death in question. It is in evidence that the accused acted in defense of the property and provocation. The facts and evidence on record shows that the crime happened at the homestead of the accused who was on his own activities. His mother who lived at a different place arrived there and forcefully took the bicycle which she wanted to move away with it. Page. 2 Hon. ATHUMANI MATUMA What the accused did was just to prevent her from taking such bicycle in polite words as evidenced by the evidence of both parties. Thus, for instance, PW3 the CRO officer at the police station on the material day testified that the deceased explained to him that when she went to take such bicycle, the accused told her; “Hii baiskeli huwezi kuichukua inanisaidia kusombea kuni porini” Those were polite words by the accused to his mother which were reported to police by the deceased herself. The accused also in his defence stated the same thing. He testified that on the material day in the morning his mother came with the view of taking the bicycle so that she goes to sell it. He told his mother; “Baiskeli ukiiuza italeta hasara sana maana inatusaidia”. According to him his mother left but, in the evening, she came again demanding to be given the bicycle so that she goes to sell it. The accused repeated to her; “Si nimeshakuambia italeta hasara” Despite of all these polite responses by the accused the deceased forcefully entered inside the house which is not her, and took the bicycle which caused the two to contest for such bicycle as evidenced by the deceased herself through the evidence of PW3 supra who testified to have been told by the deceased that she wanted to take the bicycle by force which resulted into contest; “akataka kuichukua ile baiskeli kwa nguvu, wakaanza kunyang’anyana”. Similar evidence was given by the accused in his defence when he testified that her mother entered inside the house and took out the bicycle by force. He held it at the back while his mother holding it on the steering each pulling the bicycle against the other; “Nikaenda kuikaba baiskeli hiyo kwenye keria yeye alikuwa ameishikilia kwenye stelingi. Akageuka akanipiga kofi ndiyo vurugu ikaanzia hapo” Under the circumstances, the accused did not plan to assault his mother but was triggered by his deceased mother in the quarrel which resulted into a fight. It should be remembered that in the instant case we have no evidence of an eye witness. Therefore, the only tangible evidence on the matter is that of the deceased as spoken by PW3 and that of the accused himself. Such evidence tallies as quoted above. Even the cautioned and extra judicial statements are all reflecting that the deceased went to take such bicycle by force with intent to sell it but the accused denied her because it was his tool of work for his gain. Not only that but also the evidence on record including the medical evidence shows that the accused did not attack her mother on delicate parts of the body nor he used any dangerous weapon. He striked the deceased on the left leg and on the shoulder. He did not inflict even a minor injury on the head, chest, neck or stomach and used just a stick. The force used was however excessive and that is why the leg got broken and the shoulder dislocated. Such excessive force incriminates the accused for his acts, otherwise he would have not been guilty by reason of defence of property. Again, the utterances made by the accused before the crime shows that he did not want any trouble with the deceased as he pleased her at all times that the bicycle if sold it would be loss because it helps him a lot to earn a living. He even stated so in his evidence during the defence that he used the bicycle for fetching firewood and charcoals for sale. Page. 3 Hon. ATHUMANI MATUMA In that regard all the factors as illustrated in the case of Enock Kipela supra for the purposes of establishing malice aforethought are resolved in favour of the accused person. I rule out that the accused did not intend to cause the death in question. He is thus not guilty of murder as he stands charged. There is a question of who was the owner of the bicycle which led to all these problems. The prosecutions tried to establish that such bicycle was the property of the deceased’s daughter one Pendo Paul. The accused however maintained that such bicycle was his own property which he bought from a person. Since the prosecution did not bring any tangible evidence relating to ownership of such bicycle but mere words, the evidence of the accused that the bicycle was his own property is not challenged. I find it that the bicycle was the property of the accused and thus he had a justifiable cause to protect it from any person as there is no law permits a parent to grab the child’s property. Even if we agree that the bicycle was the property of the deceased’s daughter, yet it was not the property of the deceased and thus the deceased was not justified to go and pick it by force. The accused who was in physical possession was entitled to protect it on behalf of its owner. Such right is provided for under section 18 of the Penal Code which provides; “Subject to the provisions of section 18A, a person is not criminally liable for an act done in the exercise of the right of self-defence or the defence of another or the defence of property in accordance with the provisions of this Code”. Section 18A. (1) of the Code supra provides that; “Subject to the provisions of this Code every person has the right- (a) Not Applicable (b) to defend his own property or any property in his lawful possession, custody or under his care or the property of any other person against any unlawful act of seizure or destruction or violence”. In the spirit of such quoted sections of the Penal Code, the accused was entitled in law to protect the bicycle from unlawful acts of the deceased which intended to dispose the bicycle which was not her property. Even if it would have been her property, she had no any legal justification to trespass the accused’s compound and take it by force. She ought to have gone through local channels or legal channels for the purposes of maintaining peace in the society. But as I have said the accused is still liable because he used excessive force in defence of his property. Section 18B (1) of the Penal Code supra protects only a reasonable force. It provides that; Page. 4 Hon. ATHUMANI MATUMA “In exercising the right of self-defence or in defence of another or in defence of property, a person shall be entitled to use only such reasonable force as may be necessary for that defence”. If excessive force is used and extends to cause death section 18B (3) of the Code supra provides that the offender shall be guilty of manslaughter; “Any person who causes the death of another as the result of excessive force used in defence, shall be guilty of manslaughter”. In that regard the accused is guilty of manslaughter and not murder. Even applying the principle that death resulting from a fight is manslaughter and not murder as it was held in the case of Moses Mungasiani Laizer alias Chichi v Republic (1994) TLR 222 (CA), the accused would still be liable for manslaughter and not murder because it is in evidence that there was a fight between him and the deceased whereas the deceased slapped him and he in return striked the deceased with a stick. I therefore find the accused Majaliwa Paulo, not guilty of murder and instead I find him guilty of the lesser offence of manslaughter and I accordingly convict him of manslaughter contrary to section 195 of the Penal Code, Cap. 16 R.E 2022. Having convicted the accused for manslaughter, the Prosecution in their sentencing submission called this court to enter a stiff punishment against the convict so that he learns the lesson and to send a message to the general public. On her part M/S Elizabeth Msechu learned advocate mitigated for the accused that he is the first offender, and has two children who depend on him and the death resulted from defence of his property. Having considered the aggravated and mitigations from both parties, I join hands with the learned advocate that the circumstances upon which the death occurred as revealed in this judgment along with the time spent by the convict in remand custody, he deserves a lenient sentence. Had it not been the violent acts of his mother, the accused could have not committed the offence and could not have been incarcerated for such all period from 11th September, 2021 to date which is clearly three years and almost two months. The period he has spent in remand custody would by itself suffice to be a punishment to him for the death he has caused had the trial been carried on promptly. But again, the prosecutions have not informed this court to have any criminal records against the accused in the meaning that he is a man of good behavior. I thus find him to have been a victim of circumstances and thus I sentence him to twelve months conditional discharge under section 38(1) of the Penal Code, Cap. 16 R.E 2022. I further, under section 38(3) of Penal Code supra, inform the convict that he should not commit any offence during the period of this conditional discharge and if he so commits, he shall be liable to be sentenced for manslaughter the offence of which he has already been convicted. Right of appeal to whoever aggrieved by this judgment and sentence is fully explained. It is so ordered. Page. 5 Hon. ATHUMANI MATUMA A. MATUMA JUDGE 22/10/2024 Dated at MWANZA ZONE this 23rd of October 2024. A. . MATUMA, J JUDGE OF THE HIGH COURT Page. 6 Hon. ATHUMANI MATUMA