CRIMINAL SESSIONS NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY OF ARUSHA) AT ARUSHA CRIMINAL SESSION NO. 8205 OF 2024 (Originating from PI No. 3 o f2023) THE REPUBLIC................... ........................................................ COMPLAINANT VERSUS BLANDINA MICHAEL FRED @MAMA EDEN............................ACCUSED PERSON JUDGMENT 27/09/2024 & 10/ 10/2024 D-D. NDUMBARO J, The accused Blandina Fred Michael @ Mama Eden stands charged with an offence of murder contrary to sections 196 and 197 of the Penai Code. It is alleged that on the 19th day of June 2023 at Sanawari Elkravi Street within Arusha Region murdered one Erick @ Nezoo. The accused denied the allegations hence the case proceeded to a full trial. During the hearing, the prosecution was led by Ms Thobiesta Chana and Elizabeth Mafele, learned State Attorneys. Mr Mitego Methusela learned advocate represented the accused. The prosecution paraded five witnesses; PW1 Angela Ismail Ibrahim who is a neighbour, PW2 Sclola Emanuel Kindu a ten-cell leader, PW3 Assistant Inspector Jackon Nangai PW4 Nalugendo Augustino Mushi and, PW5 Sebastia Mongas Kivuyo who is Deceased Uncle. They also produced two documentary exhibits namely, a report on the postmortem examination of the deceased body (exhibit PI), and a sketch map (Exhibit P2). In brief, Accused Blandina and deceased Erick @ Nezoo were co- tenants and neighbours. PW1 testified to have the heard accused person and deceased exchanging words. Blandina was washing her utensils outside the house, and she demanded from the deceased Tsh 2,000 for an electricity bill. The deceased told the accused he would pay on coming back on his daily work. Blandina kept on demanding payment and ended up fighting. PW1 heard the conversation followed by an alarm raised by the deceased, ongoing outside she found the accused piercing out a Knife from the deceased chest, she screamed and other tenants came outside while the accused went to sit where she was washing her utensils. It was the testimony of PW2, a ten cell leader that, she was coming home from her daily work on arriving near her house when she heard an alarm, went to that house, she found the deceased laying on the floor stubbed with a knife on his chest, on asking what happened the accused who sat on her 2 veranda replied she is the one who stabbed the victim with a knife, and she showed the knife and gave to PW2. The knife had blood, PW2 took the knife and handed it to the police. The police took the accused to the police station, and one good Samaritan rushed the victim to the hospital who died before reaching the hospital. The sketch map of the scene was drawn. PW3 who is a police officer testified to having arrested the accused and sent them to the police station, PW4 who is a doctor conducted a postmortem in the presence of police and relatives and found deceased had a fresh wound on the left side of the chest of three centimetres wide and 10 centimetres depth caused by stabbing by a sharp object. PW4 issued a report of deceased death resulting from Hematogenic shock due to losing much blood. PW5 who is the deceased uncle testified to participate in conducting a postmortem report at the mortuary together with the Doctor and police and given the deceased body for burial. PW2 and PW4 tendered sketch maps of the scene and postmortem reports respectively. Both documents were not objected by the defence and it was admitted before the court as exhibits PI and P2 respectively. When the prosecution closed his case the court found that the prosecution established a case against the accused and the ruling as to the case to answer was delivered and the defence was addressed in term of section terms of Section 293(2)(a)(b) of the Criminal Procedure Act Cap 20 R.E 2022 whereby defence testified by oath and paraded one witness who was accused (DW1) with no document tendered. DW1 testified that she is a married person with two kids, living together with her husband at Elkiravi Village Arumeru Arusha. On 19/06/2023 she was outside her rented house and asked for the electricity bill from co-tenant Nezoo because it was his time to pay for the bill, Nezoo who is deceased replied, that he would pay on coming back, and she insisted he had to pay because there was no electricity, the deceased replied she should not spy his life and stop demanding (alisema nikome, ni mteme niache kumuandama), she kept on insisting him to pay and that if there was anything else he should tell her to know. The deceased went to where she was washing the utensils held her up and they fought. She testified at the time the deceased came where she was, she was washing a knife and the deceased wanted to take that knife from her hand, in cause of defending herself she kept on holding the knife and she didn't know what happened and found the knife pierced the deceased chest hence she took it out, she was confused and went to sit where she was washing the utensils. The tenant mate screamed, and neighbours and the cell leader came. Ten cell leader on seeing the victim lying down bleeding asked what happened she told her "Mama we were fighting and the knife stabbed him". Police came and arrested her. The accused prayed to the court, that she did not intend to kill Nezoo, they were fighting and the knife stabbed him, and the court to consider her innocent. Having summarized the evidence as presented, the court observed that there is no dispute that the accused died unnaturally, postmortem report revels, it was tendered before the court, and not objected by the defence side, further accused admitted the fact that Nezoo died. Accused testified to fighting with the deceased and did not intend to kill the deceased. I have also examined the evidence of the accused person who tried to establish self-defence, stating that she asked for electricity bill from the deceased on insisting the deceased told her she should not spy on his life, the exchange of words ended in fighting, she denied having killed the deceased she stated that she was washing the utensils and the knife was in her hand, deceased came and held her up and wanted to take that knife from her hand it ended into stabbing the deceased chest. In that regard, I have no reason to fault that in the absence of any plausible evidence establishing that the deceased may have been killed by another person other than the accused person. Indeed, it is trite law that every witness is entitled to credence and must be believed and his/her testimony accepted unless there are good and cogent reasons for not believing. See the case of Goodluck Kyando vs Republic [2003] T.L.R 363. From the evidence of the prosecution above together with the defence of the accused person, this court is satisfied that it is the accused person who caused the death of the deceased. The question is whether the prosecution has proved the charge against the accused beyond a reasonable doubt to convict the accused person of the offence of murder c/s 196 of penal code Cap 16 Re 2022. It is an undisputed fact that the death of Nezoo died unnatural and the cause of his death was a stab wound in the left side of the chest leading to severe bleeding. PW1 Angel who was eyewitness, testified, it was the accused Blandina a.k.a Mama Eden who stabbed the deceased with a knife, and considering the testimony of the accused which is not far from the prosecution witness finds no reasons to disbelieve. The killing arose after an exchange of words demanding to pay Tsh 2,000 for the electricity bill. The above considered, the question is, did the accused person kill the deceased with malice aforethought? Referring to the evidence from both parties, the prosecution side PW1 who was an eyewitness, witnessed to have seen the accused piercing out the knife from the deceased chest. I have also taken into consideration the evidence of PW2, who basically did not witness the commission of the crime, testified accused admitted to having stabbed the deceased, and it was testimony of accused that she was fighting with the deceased when she was washing her utensils/plates and at a particular time the knife was in her hand whereby the deceased wanted to take that knife from the accused hand, instead the knife stabbed the deceased without knowing. The accused admitted having killed the accused without malice aforethought and did not intend to kill an accused person. The testimony reveals that the deceased and accused person were fighting. Section 200 of the Penal Code defines malice aforethought and the same was judicially emphasized by the Court of Appeal of Tanzania in the case of Enock Kipela vs The Republic (Criminal Appeal 150 of 1994) [1999] TZCA 7 (10 June 1999) where it was stated that; 7 "Usually, an attacker w ill not declare his intention to cause death or grievous bodily harm. Whether or not he had that intention must be ascertained from various factors, including the following; i. The type and size o f the weapon, if any used in the attack; ii. The amount o f force applied in assault; Hi. The part or parts o f the body the blow was directed at or inflicted on; iv. The number o f blows although one blow may, depending upon the facts o f the particular case, be sufficient for this purpose; v. The kind o f injuries inflicted; vi. The attacker's utterances, if any, made before, during or after the killing; and vii. The conduct o f the attacker before, or after the killing." Navigating from the conditions laid in the case of Enock Kipela Vs R supra in relation to the case before us, the knife used by the accused was one among the utensils she was cleaning. It was the deceased testimony before the court that, the cause of the deceased's death was fighting between the deceased and her and that, while fighting deceased wanted to take the knife from accused hand and without knowing stabbed the deceased. It is also the testimony of PW4 who is a doctor that, the stabbed wounds were three centimeters wide and 10 centimeters deep. On the issue of the force used, it is my view that stabbing a person 10 centimeters deep may require the use of force. Considering the accused and deceased stood when fighting. If no force were used it may not be deeper than 10 centimeters. Despite the fact, that we were not told the sharpness of the knife as to the presumption of force used. On the issue of the number of blows, the postmortem report shows it was one blow. Considering conduct before the commission of offence there was the exchange of words and then a fight and after stabbing the accused person went to sit where she was washing plates until when she was apprehended, and on the accused testimony before the court confessed to having unintentionally killed the accused. The intention is the element that distinguishes manslaughter from murder. The accused person during trial asserts she killed the deceased person out of his control due to any diminished responsibility or the death was due to fighting between the accused and deceased the intention may not exist. It is the position of law that, death resulting from a fight cannot constitute the offence of murder but the offence of manslaughter. The reason behind the position is there was no intention to kill before the fight. A number of cases support the position among others the cases of Elias Pau v. Republic, Criminal Appeal No. 7 of 2004, Emmanuel Mrefu @ Bilinje v. Republic, Criminal Appeal No. 271 of 2006, Mashaka Mbezi v. Republic, Criminal Appeal No. 162 of 2017 (all unreported), of Aloyce Kitosi vs Republic (Criminal Appeal 284 of 2009) [2012] TZCA 242 (6 December 2012) and In Moses Mungasian Laizer @ Chichi v. Republic [1994] T.L.R. 220, whereby the later case of Moses Mungasian Laizer @ Chichi v. Republic, the High Court convicted the accuse death by hanging after rejected the appellant's version of evidence that the deceased's death resulted from a fight. On its appeal, the Court on appeal reduced the offence to manslaughter and held that: "Where death occurs as a result o f a fight an accused person should be found guilty o f the lesser offence o f manslaughter and not murder". The position also was in the case of Jackson Mwakatika & 2 others v. Republic [1990] T.L.R. 17 in which it was held that: " When death occurs as a result o f a fight unless there are very exceptional circumstances, the person who causes death is guilty o f manslaughter and not murder". The position is was also emphasized in the case of Minani John & 2 Others vs The Republic, Criminal Appeal No. 435 of 2018 (Unreported) whereby the Court of Appeal of Tanzania held that; "There are a range o f cases in which we had the occasion to underscore that where death occurs as a result o f a fight, one cannot infer malice aforethought, with the effect that a charge o f murder may be reduced to a lesser offence o f manslaughter." In the case of of Aloyce Kitosi vs Republic (Criminal Appeal 284 of 2009) [2012] TZCA 242 (6 December 2012) held Manslaughter is distinguished from murder by lack o f intention to kill. It is available where defences like provocation, intoxication, insanity and diminished responsibility are put forward by the defence side in a trial involving a ii murder charge. From the accused's evidence, established that it was the deceased who started the fight and in cause of fighting the knife which was in her hand stabbed the diseased. Basing on above analysis and considering our case at hand, the case at hand it is my view that no intention to kill was established against accused. The prosecution and defence witness testified there was the exchange of words culminated in, quarrelling, fighting and finally killing. Since the position of law is clear that a death resulting from a fight may not lead to a conviction of an accused person of the offence of Murder rather than manslaughter unless there are special circumstances such as there was the intention to kill before a fight, such as repeated as it was established in the case of. Enock Kipera Vs R supra. I therefore find that the evidence adduced by both sides has satisfactorily established the accused person's guilt of the offence of manslaughter, unlike the offence of murder whose thresholds have not been met. The testimony of PW1, PW2 and that of DW1 justify the findings. The above being said, it is the finding of this court that in the absence of malice aforethought, a conviction for murder cannot stand. Therefore, the prosecution is found to have satisfactorily established the accused's 12 guilt of the offence of manslaughter, unlike the offence of murder. I consequently convict the accused person of the offence of Manslaughter c/s 195 of the Penal Code, Cap 16 R.E 2022. It is so ordered. D.D. NDUMBARO JUDGE 10/10/2024 SENTENCING This court having convicted the accused person of the offence of manslaughter, it is now the duty of the court to assess appropriate sentence by considering both aggravating and mitigating factors. Ms: Manga for the Republic though did not have any record in relation to the accused's previous conviction yet she prayed for imposition of unmerciful sentence against the accused so as to teach those who have a tendance of taking justice into their hands. The accused through the learned counsel, Mr. Mithego Methusela advanced the following mitigating factors; First, the accused person has shown remorse to what she has done and that it was not her intention to 13 kill the deceased and that the killing arose due to the fight. Second, showing that the accused person did not have the intention to kill the deceased, even after the commission of the crime she remained at the scene of the crime and that throughout the hearing of this case she has been very cooperative since when she was apprehended at the Police Station. Third, the accused person is a young woman who has dependents; her parents together with her two children aged 8 years and 3 years respectively. Her children are still young and they depend her in their upbringing. Lastly, the counsel lamented that, the accused person has no any other criminal records and that this is her first offence to have committed. Mr. Methusela proposed for a sentence of low level since the accused was fighting with the deceased and she was defending herself. Gathering from the sequence of events in the killing of the deceased, this court is wholly convinced that the accused's commission of the offence was facilitated by the fracas that occurred at the scene of the crime. More so, it was also the observation of this court that the accused person did not have any intention to kill the deceased and she was demanding for money to buy electricity from the deceased. Nevertheless, I have also considered the nature of the weapon that was used by the accused person in killing 14 the deceased together with the vulnerability of the part of the body that was stabbed. I have however considered the accused person's mitigating factors that, she is the first offender, the factor which entitles her a merciful sentence. Similarly, that she is a young woman who has dependents who are her parents and the young children aged 8 years and 3 years respectively. The accused person has also shown remorse and she has throughout the proceedings admitted to have no intention in killing the deceased. It is therefore my opinion that the level of seriousness of the offence is low level and the actual sentence that may meet ends of justice is a sentence of Two (2) years to serve COMMUNITY SERVICE. The convict has to do public duties as assigned by the Community Service Officer at Arusha. This community service order includes the following orders; a). That, the accused person shall work for not more than four (4) hours per working day as stipulated under Regulation 27 of the Community Service Regulations, GN. 87 of 2004 15 b). That, the convict shall be assigned public unpaid works at Arusha City as will be deemed fit by community service officer who shall closely supervise the convict. c). Upon proof of gross breach of the community service order by the offender, this order may be substituted to custodial sentence. d). That, the Community Service Officer shall submit a report upon satisfactory completion of service as per Regulation 41 of the Regulations. Order accordingly. D. D. NDUMBARO JUDGE 10/10/2024 Court: The right of appeal to the Court of Appeal of Tanzania was fully . \U O I explained to the parties. D. D. NDUMBARO JUDGE 10/10/2024 16