republic vs ngasa so mohamed others 2006 tzhc 200 5 may 2006

IN THE HIGH OOURT OF TANZANIA AT TABORA (Tabors Registry) CRIMINAL SESSIONS OAAE NO# 4-2 OF 2006 THE REPUBLIC VERSUS 1. NGASA 8/0 MOHAMED 2. MAYUNGA S/0 HUSSEIN 5# P.NMgA, S/0 SHIGELA High Court Sessions at Nzega* Cates 4th May, 2006« Coram: D# M# Mwita, Judge. Mr. Mrina, State Attorney for the Republic* Accused: 1, Ngasa Mohamed 2, Mayunga Hussein 3# Kineira Shigela are present under custody and represented by Mr# Mtaki, Advocate# Interpreter: A# Hafidhi, English into Kiswahili and vice versa* Notice of trial on Information for Murder c/s 196 of the Penal Code was duly served on the Accused, now before the Court on 4-.5.2006* Information is read over and explained to the Accused in their own language and they are required to plead thereto: Plea_s: 1st Accused: "It is true# It was by bad luck”# 2nd Accused; "It is true# It was by bad luck"# 3rd Accused: "It is true#- It was by bad luck"* Entered as pleas of "Not Guilty" to the charge# D« M# Mwita, Judge. 4 5 2006 - « « #' Cr.Sess.Co 4 2/ 2006 . 2 MRINAs I pray to amend clerical errors in the charge. The name of the 1st Accused should read NGASA S/0 HUSSIN and not NGASA 3/0 MOKAMED. 1st accused: My true name is NGASA S/0 HUSSEIN* ORDER; The charge is amended accordingly. D. M. Mwita* 9 Judge, 4.5.2006. MTAKI x The Accused persons plead guilty to the lesser offence of Manslaughter. JffilNA: The facts are as follows: The Killing occurred on 15.2.2005 at Igoweko village, Igunga District. The Deceased was called HUSSEIN S/0 MOHAMED. On the night before the material day 4* cows were stolen from the home­ stead of SillGEL A KINGWA of BUKEKielLA Village by unknown people. The 3rd Accused, Kineira s/o Shigela, a member of the household w ’ the cows were stolen raised an alarm on discovering that their cows had been stolen. Sungusungu gathered and started tracing the stolen cows. -^he stolen cows were found at Igoweko village in possession of the Deceased. Sungusungu arrested the Deceased and took him to Igoweko village leaders. The Igoweko village leaders decide^ the cows and the Accused be talfcen to Buhekela village by Sungu­ sungu. On the way to Buhekela village they killed the deceased and left the dead body in the forest. After a few days it discovered that the theif was killed. The matter was reported to the Police. Post Mortem Examination Report indicates cause of death as BRAIN DfiMAGE AND SEVEPJ3 HAEMORRHAGE. I pray to tender the said report. MAKIJ No Objection. COURT: Report on Post Mortem Examination is admitted as EXHIBIT P. 1. Do Mo Mwita, Judge. 4.5.2006. MRINA1s The Accused persons were arrsted. They made cautioned statements in which they admitted to have jointly cau^ the death of the Deceased. The Accused persons were charged with murder. NGASA HUSSEIN: The facts are correct, MAYUNGA HUSSEIN: The facts are correct. It was by bad luck„ KIHEIRA SHIGELA: It is true. COURT: Plea is altered to one of guilty to the lesser offencc of Manslaughter and the Accused persons are convicted of Manslaughter on their own plea of guilty to the lesser offence of Manslaughter# JUdge* 4th May, 2006. JffilNA: We have no record of the Accused persons previous os convictions. MTAIC[s. We pray that the following mitigating factors should be taken into consideration when assessing sentence. 1# The Accused persons are first offenders. 2. The 1st Accused is 13 years old, the 2nd Accused is 16 years old and 3rd Accused 14 years old. Due to their age they were following orders of Sungusungu leaders. 3« The Accused persons have been in custody for over one year. ORDER: Sentence on 5*5*2006. D. Mo Mwita, Judge. 4th May, 2006. 5th May, 2006. Before: Hon. D. M* Mwita, judge. Accuseds: 1. Ngasa Hussein 2. Mayunga % s s e i n 3. Kineira Shigela are present under custody and represented by Mr. Mtaki, Advocate. Mr. Mrina, State Attorney for the Republic. Court Clerk: A« Hafidhi. SENTENCE: The Accused persons were charged with murder c/s 196 of the Penal Code. On 4.5*2006 they were convicted of Man&kuufefeter c/s 195 of the Penal Code upon their own pleas of guilty to the lesser offence of Manslaughter. Hearing was adjourned to to-day so that the Court may consider the appropriate sentences in the light of the provisions of the ' * the Children and Young Persons Act, Cap. 13 as the Accused persons were said to be between 18 and 14 years of age. In terms of section 2 of the Children and Young Persons Act, MYoung Person rf means a person who is twelve years of age or more but under the age of sixteen years. In the instant case only the 3rd accused, Kineira Shigela, wwho is said to be 14 years old is/young person to v. the Act is applicable. In terms of section 18 of the Children and Young Persons Act, the provisions of the Act do not apply to the punishment of persons convicted of the offence of homicide. In the instant case the Accused were convicted of homicide. Hence the provisions of the Act are not applic?" to the punishment of the 3rd Accused w^O is a young person. He is to be sentenced as an adult. Cr 4,Ses s.C.42/2006 , 5 Having taken into consideration the mitigating factors as narrated by tbs defence counsel, in particular the fact that due to their age, the ^caused may have blindly obeyed the orders of the Sungusungu commanders, I sentence the Accused persons to two years imprisonment each* One wonders as why the Sungusungu Commanders involved were not prosecuted« D. M* Mwiti, Judge, 5.5<>2006* ORDER; In terms of section 22(3) of the Children and Young Persons Act, the 3rd Accused, KZNEIRA SHIGELA, being a young person, should not be allowed to associate with adult prisoners in prison. iJ "~TT D. Vl. MWITAf JUDGE. 5th May, 2006* /AHM*