IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

AT NJOMBE

ORIGINAL JURISDICTION

(IRINGA REGISTRY)

CRIMINAL SESSION CASE NO. 10 OF 2017

THE REPUBLIC

VERSUS

OKOA S/O NDWENYA...... ACCUSED

23/3 & 30/3/2021

JUDGMENT

MATOGOLO, J. The accused person Okoa s/o Ndwenya stands charged with murder contrary to Section 196 of the Penal Code Cap. 16 R. E.

2002.

It is alleged in the particulars of offence that on 19th day of March, 2016 at Imalilo village within Wanging'ombe District in Njombe Region the accused did murder one Keneth s/o Sanga.

The accused pleaded not guilty to the charge. In order to prove the charge against the accused, the prosecution paraded a total of five witnesses namely Atupoka Mhagama (PW1), Julio s/o

Page | 1 Ndwenya (PW2), Dr. Isack s/o Lulindi (PW3), Inspector Daudi. Mapunda (PW4) and H. 7708 D/C Godfrey (PW5).

The evidence for the prosecution is to the following effect, PW1 one Atupoka Mhagama is married to one Julio s/o Ndwenya (PW2). They are living at Imalilo village.

In 2016 they were also living in that village together with their son Okoa Ndwenya (accused) PW1 is the step mother to the accused as her real mother died in 2009.

On 19/03/2016 in the morning at 07:00 am PW1 prepared breakfast so that they could take and go for shamba work. Upon going to nock at the room of the accused there was no response. She pushed open the door to find the room is stained with full of blood and accused was not there. PW1 followed her husband who had a meeting with business person at the business place. She informed him what she had observed. Her husband returned back home in the company of Deo Sanga, the hamlet chairman. Upon entering into the accused's room they found blood. They made following up to drops of blood which led to the latrine area where they saw human body covered with grasses.

They thought it was Okoa Ndwenya (accused). They called at Makoga police station, the police went there and entered into the room where accused was sleeping and saw blood stains. They went at the place where the body was found. After the grasses were received it was discovered that it was not the body of Okoa

Page | 2 Ndwenya. The deceased body was taken to the dispensary of Imalilo village and them to Kibena hospital.

PW1 stated further that Okoa was not there and efforts to made follow up of his where about were made and he was arrested at Makambako on 20/03/2016. At 11.00 am Okoa was sent back to the village.

While being cross-examined by the defence counsel, PW1 stated that after they have returned back home on 19/03/2016 during the night time she heard them talking as if they were drunk. PW1 knew that Okoa is a drunkard person. They did not even eat the food she had prepared for him.

She said the person who was together with Okoa in his room is the deceased in this case, who had been at their home for four days before his death and was the friend of Okoa.

The two have never quarreled or fought before. PW1 stated further that after be arrested and sent back to Imalilo village, she saw her in a state of intoxication and had bruises and swollen on her body.

PW2 on his part narrated what he was told by PW1 as to what had happened at home. Upon going there and entered the room of Okoa he found full of blood stains in the room. He said he also saw blood stains outside and traces which led them to the latrine area where they saw grasses. Upon looking under them they saw human body. PW2 said he was shocked as he thought it Page | 3 was Okoa his son who was killed. They made phone call to the Ward Executive Officer and to the police at Makoga Police station, who upon arrival they removed the grasses. PW2 discover that was not Okoa. As there were many people there one Meshack Mahenge identified the deceased body to be of Keneth Sanga.

PW2 and the police started to trace the accused and managed to arrest him at Kifumbe village Makambako at 14.00hrs on 20/03/2016 while sleeping in a certain house together with his friend on the same bed. PW2 said they found him in the state of intoxication as when asked he was not showing any fear. But his face was swollen and had bruises on his hands.

He was arrested and sent to Mdandu police station. PW2 after saw the deceased body he remembered that he had friendship with his son Okoa. He was engaging himself in sawing timbers. But he could not know what happened between the two. While being cross-examined by the defence counsel, PW2 stated that accused was studying at Philip Mangula Secondary School but dropped while in form one as he has fallen sick. They treated him for one year after recover he refused to go back to school. He remained at home assisting his mother in cultivation. He stated further that the accused has never exhibited bad conduct before. He said he know Okoa is a drunkard and used return back home late in the night and in the room he was sleeping there

Page | 4 were present a bed, a table, hoes, bush knife, slasher and a machete.

He said few days before the incident the deceased has been together with Okoa. They were returning together and eating together and he has never witnessed them quarreling.

PW3 on his part told this court that he is a medical doctor, in 2016 he was stationed at Kibena hospital Njombe.

On 20/03/2016 he conducted postmortem examination to the deceased body who was at the mortuary. After postmortem examination he prepared a report which he tendered in court. The same was admitted as exhibit PI. In that report which he read its contents in court he was of the opinion that the cause of death was severe bleeding due to slaughtering as he observed a cut wound on the right part of the neck caused by sharp object.

Insp. Daud Mapunda (PW4) on his part told this court that in 2016, he was the OCS of Makoga police station in Wang'ingombe district. On 19/03/2016, at 01:00pm PC Aristaric informed him that he has received a call from the Ward Executive Officer of Wangama ward who informed him that there was murder incident at Imalilo village. Shortly thereafter he received a phone call from one Yasinta the Ward executive officer of Wangama informing him on the murder incident and wanted him to go there early. PW4 asked her if the deceased is known, she agreed and told him that is the son of the village executive officer of Imalilo called

Page | 5 Okoa. They left to the scene of crime at Imalilo village, they were shown the room where Okoa was sleeping. Upon entering they found the room with full of blood stains. But they also saw blood drops from the room leading to the latrine area where they saw a pit used for sawing timbers, which was filed with grasses, and branches of pine trees. Upon removing them they found a human body inside that pit. It was a dead body whose head was inserted in the sulphate bag but the legs remained outside. They took the body from the pit and from the sulphate bag. Upon seeing it Julio Ndwenya (PW2) said it was not his son Okoa. As there were many people there one identified the deceased body to of Keneth Sanga, the friend of Okoa and that they used to sleep together in the room of Okoa. While there, PW4 said Julio Ndwenya received a phone call informing him that his son Okoa was seen boarding a Noah motor vehicle from Imalilo village to Njombe. The police together with PW2 started to trace him and managed to arrest him at Kifumbe village at 04:00 hours while sleeping with his friend on one bed. He said PW2 asked Okoa if he know Julio, he agreed that is his father. PW4 introduced himself to him. They told him that he had killed his friend one Keneth Sanga. Accused admitted but he told him that he did not know why. But he said while in the room together with Keneth Sanga the latter picked a knife and told Okoa to get out of his room. He took a machete and cut him. They left with him back to Imalilo village. PW4 stated further that the accused cooperated and on the way he was talking with him friendly who told him that the reason for Page | 6 killing the deceased is that Keneth Sanga, his friend he was running with his girlfriend a barmaid.

PW4 said they went with the accused to Mdandu police station and handed him to the OCCID of Wanging'ombe District ASP Deo Nyinyimbe. It was at 08:00 am. PC Godfrey was assigned to record the accused statement. PW4 left together with the OCICD to the scene of crime together with Okoa. PW4 said, for the first time Okoa had told him that he had damped the machete in the pit latrine. But upon arrival at the latrine accused changed and told them that he had put the machete under the bed, which was recovered there from. PW4 said it was stained with blood.

PW4 also told this court that he asked some people if they know if the named girl was the girlfriend of the accused, they told him so but he did not get her. But they were not married. He also said they did not get the knife which Okoa told them that it was held by the deceased and used it to stab accused. While being cross-examined by the defence counsel, PW4 said after found Okoa sleeping, it took him a long time to wake up. But he did not know if Okoa was drinking alcohol. He said his delay to wake up he thought it was because he walked a long distance. But he could not tell the way he arrived there. He said if the people who knew Okoa say that he used to drink wound be right. PW4 stated further that at one time he was drinking and that if a person drunk much, it will be difficult for him to wake up. He also said at

Page | 7 that time Okoa was a little boy aged 17 or 18 years old. And that he heard Okoa saying he heard that Keneth Sanga was running with his (accused) girl friend and become angered and that was the reason for killing him. But PW4 admitted that if two men share a woman and become aware they may quarrel about her. And that Okoa told him he killed by bad luck, he just did so after being angered.

The last prosecution witness is H. 7708 DC Godfrey (PW5), he told this court that in 2016 he was stationed at Mdandu police station. On 20/03/2016 he was assigned and recorded the accused statement which he tendered in court. The same was admitted as exhibit P2. PW5 read the contents of the accused statement aloud in court. As to the question why there were two answers regarding whether accused is a drunkard and whether on the date of incident he was drunk. The first answer was "ndio" but the second answer was "hapana". PW5 gave explanation that he made error by writing "ndio" the correct word was "hapana".

The accused gave sworn evidence in his defence. He told this court that he was born in 24/02/1999. Before he was arrested in connection with this case he was living with his parents at Imalilo village. He said he know Queen she was his girl friend from 2016. He also know Keneth Sanga, was his friend but now deceased. They came to know each other in January, 2016 as they used to meet at "Kijiweni" at Malilo village. Deceased was Page | 8 sawing timbers while accused was doing cultivation. He said in his room he was sleeping alone but after meet with his friend Keneth Sanga, he used to sleep with him. His parents knew him as his friend as he had introduced him to them. He said inside his room there was a bed and a mattress, a table, maize and hoes. There was also present a machete, slasher and a rake. He said apart from the bed and table the other instruments were instruments for farm work.

Accused told this court that on 19/03/2016 after come from the farm he took bath and then went to "kijiweni" where he met with Keneth Sanga. The latter bought four beers for him which he drunk and added other beers. They stayed there up to 01:00 hours when they left back home but they were both drunk. He found hi step mother (PW1) going to sleep. She told him that she had kept food for him he answered him that "hamna shida". But they did not eat the food, they entered into their room and they started taking (tulianza kupiga stori). He said Keneth asked him one question if he knew Queen. Accused answered him that he knew her. Keneth asked him if he has any love relationship with her. Accused told him that she is his girl friend. He said Keneth got up and remarked "kwanini huyu mwanamke anatuchanganya", he told accused that she is also his girl friend as he is running with her. Accused said he remembered that he pushed the deceased who fallen at the door where there were hoes, axe, slasher and a machete. But he said those were farm

Page | 9 instruments. He said he pushed him because he was angry with the question he asked him and after has told him that Queen is also his girl friend. He said when Keneth got up he was holding an instrument which accused did not know and stabbed him with it on his waist. He was angered, he picked an instrument which he did not know what was it and cut Keneth on the neck once. He then get out and went to nock at his brother who was sleeping at the sitting room. He told him that he has quarreled with his friend and unfortunately has cut him but his brother did not wake up. He tried to awake his parents but they did not wake up. He said the conversation between him and Keneth and the act of cutting each other took them not more than ten minutes. After that he get inside his room and took Keneth Sanga out. He was unable to walk. He dragged him to the latrine area. He left him there, took his bags walk up to Wangama where he boarded a motor vehicle to Njombe. Accused said he was arrested on 20/03/2016 at Kifumbe village during the night time. He said he was arrested by the police while was together with his father Julio Ndwenya and sent him to Mdandu police station. At 07:00 am his statement was taken by PW.5. He said he told the recording officer that he told Keneth Sanga that Queen was his girl friend. He also told the recording police officer that he was drunk, Keneth also was drunk. On 21/03/2016 he was taken to the justice of the peace. While recording his statement he told the police officer that he did the act in a state unaware as to what he was doing (kutojielewa) and the reason is that he was angered to hear that Page | 10 Keneth was also running with his girl friend. Accused told this court that he did not expect to cut Keneth Sanga, that happened due to the question he asked him. They have never quarreled nor fought with Keneth before that incident.

During cross-examination, accused person stated that he decided to take Keneth Sanga from the room they were sleeping to the latrine area because the thought he may die inside the room such that there would be a problem And that he fact that Keneth caused a wound to him at his waist he told the police officer who was recording his statement but refused. He told him so at the time he was inspecting him. But he has no any document to prove that.

From the above summarized evidence, there is no dispute that Keneth Sanga is dead and that he died unnatural death. This can be gathered from the testimonies of PW.l, PW.2, PW.3, PW.4. PW.5 and accused himself. The Medical Doctor who conducted postmortem examination to the deceased body, PW.3 his finding was that the cause of death of the deceased was severe bleeding due to slaughtering. He observed big cut wound on the left part of the deceased neck. However PW.3 did not indicate the measurements of the size of the wound. But we took his report as a proof that Keneth Sanga is dead and died unnatural death. Who killed the deceased, this also is not in controversy. The accused himself has admitted to have cut the deceased with an instrument which he said he picked it from

Page | 11 inside the room they were sleeping after being angered by the deceased. He admitted to PW.4 after he was arrested. But he also admitted in his cautioned statement recorded by PW.5. He also admitted too before this court in his defence. Thus one element of murder, that is act of killing was proved. The only dispute in this case is whether accused killed with malice aforethought. Upon review of evidence adduced and received by this court, the evidence establishing malice aforethought is wanting.

Of course, sometimes it is difficult for an accused person to admit that he killed with malice aforethought. But malice aforethought can be inferred from various factors such as the conduct of the accused before, during and after the incident. The type of weapon used and where accused got it before use it to kill, amount of force applied, part of the body the weapon was directed, number of cuts inflicted. Sometimes, if there were utterances before, during and after the killing. In his defence accused has put up defence of both provocation and intoxication. But he also alleged bad luck. The prosecution has attempted to brush out the defence of intoxication by stating that accused did not tell that on the material date accused was drunk. That is what PW.5, but for reasons not well explained and understood, PW.5 had recorded two conflicting words "ndio" and "hapana". This came out when PW.5 put a question to the accused whether on the material date and time accused person was drunk. The first answer recorded was "ndio" but the word was enclosed in

Page | 12 blackets and infront of it the word "hapana" was inserted. He did so without considering that from the beginning accused has stated that he and the deceased were both drunk on the material date.

But it was also revealed by the accused parents, PW .l who said at the time the accused and deceased were returning back home she heard them talking as if they were drunk. Also PW.2 and PW.4 clearly told this court that after arrest the accused person at Kifumbe village accused was in a state of intoxication. PW.4 stated further that accused did not wake up early and appeared to be tired. But according to the evidence received accused is a drunkard, he used to return back home late at night. Even on the material day he was drunk, the deceased too was drunk. The prosecution did not therefore prove that at the commission of the offence accused was of sober mind. In actual fact the prosecution witnesses supported the accused person that he was drunk. In the case of Stanley Antony Mrema v. Republic, Criminal Appeal No. 180 of 2005, CAT at Arusha (unreported), the Court at page 12 while referring to the decision in the case of R.v. D.H. Retief (1941) 8 EACA 71, it was held that:-

”..as a general proposition drunkenness is no excuse for

a crime and that insanity whether produced by

drunkenness or otherwise is a defence to the crime

Page | 13 charged. It was further held therein that if insanity is

not established, killing by a drunken person is either

murder or manslaughter. It will be murder if an intent

to cause death or grievous harm is established. But if

it be found that by reason of intoxication the

accused was incapable of forming such intent the

offence is manslaughter".

See also the case of Saidi Kapinga pole v. R. Criminal Appeal No.28 of 1991

The accused also put up a defence of provocation, that the question put to him by the deceased if he knew Queen and whether he had love relationship with her. The prosecution argued that accused refused to have any love relationship with her. However, that answer in my view was justified because it is not known as for what purpose deceased was asking accused that question taking into account that the two were drunk. But after deceased has disclosed to the accused that he has love relationship with Queen, it is when accused reacted and pushed the deceased. According to him, deceased fall on the farm implements which were stored in that room. Deceased picked a sharp object with which he stabbed the deceased on his waist. He therefore picked the machete and cut deceased once on the neck.

Page | 14 This is likely as accused could simply pick whatever was infront of him and that is what happened. The accused did not follow the machete far, it was within the same room. This defence too is possible as the prosecution did not give evidence to rebut such a defence.

I have carefully considered the factors from which malice aforethought may be inferred. There is no evidence of the accused's conduct before, during and after the incident which can be inferred that he killed with malice aforethought. The accused assaulted the deceased using a machete which was inside the room in which the two were sleeping. Admittedly, a machete is a lethal weapon, however accused did not follow it from a distant place, and that he just cut the deceased once. There is no evidence led by the prosecution to prove that the killing was with malice aforethought. Without such important evidence, the prosecution has failed to prove murder against the accused. Together with this failure, the accused defences has led me to the conclusion that accused killed the deceased but not with malice aforethought. In the case of Augustino Kanganya and Another v. R. [1993] TLR 16, it was held:-

"In a charge of murder only where it is doubtiful on the evidence that an accused intended to kill or to cause grievous harm to the deceased will the court give the benefit of

Page | 15 doubt to the accused and find him guilty not of murder but of manslaughter

The gentle assessors were of unanimous opinion that the accused is not guilty of murder but guilty of a lesser offence of manslaughter. I agree with them, the accused is not guilty of murder but is guilty of manslaughter. I therefore acquit him from the charge of murder and convict him for manslaughter contrary to section 195 of the Penal Code Cap.16 R.E. 2019.

F.N. MATOGOLO

JUDGE

30/03/2021

PREVIOUS RECORDS

Mr. Matiku Nvarmero - State Attorney:

My Lord the accused is the first offender, we have no record of previous criminal record.

But my Lord in prescribing the sentence against the accused for manslaughter you should also consider the circumstances under which the offence was committed.

That is all.

Page | 16 MITIGATIONS

Tunsume Anaumbwike - Advocate:

My Lord we pray for leniency in sentencing the accused for the following reasons:-

(i) As pointed out by the prosecution the accused is the first offender.

(ii) The accused has been cooperative and has been admitting killing the deceased from the moment he was arrested, in his cautioned statement, and before this court. This shows repentance on part of the accused.

My Lord the circumstances under which the offence was committed, the weapon used was adjacent both accused and deceased. Had that machete not being there it is possible the killing would not occur as the two were friends.

My Lord to some extent the deceased contributed to his death as is the one who initiated issue of relationship with Queen which led to his death.

My Lord it was stated by the prosecution witnesses that the accused was of good conduct he never quarreled with his friend.

My Lord at the incident the accused was still of tender age only 18 year. He was not mature enough. My Lord we pray for leniency for the

Page | 17 accused has been in the prison for five years and ten days from 20/03/2016 up to date on 30/03/2021.

My Lord under such circumstances the accused deserved for leniency.

That is all.

ALLOCUTUS - Accused:

I pray for leniency and my family depends on me. My siblings are in school.

That is all.

SENTENCE

The accused person is convicted of manslaughter. According to the prosecution he is a first offender. In mitigation read on his behalf by his advocate Ms. Tunsume is that the accused from the date he was arrested cooperated and admitted to kill the deceased who was his friend. He admitted upon his arrest in his cautioned statement which should repentance on his part. But the circumstances under which the offence was committed and the presence of a weapon used in the room call for leniency. But according to Tunsume learned advocate, the deceased contributed to his death by provoking the accused with a question of relationship with Queen. There is no doubt that the accused was of good conduct as explained by the prosecution witnesses PW1 and PW2 as he never quarreled with the deceased before who was his friend. That the Page | 18 accused at the commission of the offence he was aged 18 years thus not mature enough. He has been in the remand prison for more than five years. I agree with both the learned State Attorney that in considering the sentence against the accused this court to consider the circumstance under which the offence was committed, likewise for the mitigating factors advanced by the defence counsel. There is no doubt that the offence was committed while both accused and deceased were drunk. The deceased has cooperated from the date he was arrested. He admitted to have killed the deceased to the police after his arrest, in his cautioned statement and before this court in his defence. This shows repentance on his part. He has been in the remand prison for more than five years which is also enough punishment to him. All these factors call for lenience. By considering all those I sentence the accused to two years imprisonment.

F.l*

JUDGE

30/3/2021.

Right of Appeal is fully explained.

30/03/2021. Page | 19