mwanamwana
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Badaaamu batamwagika
Leo ndio leo Tanzania itasimama kwa muda kufuatilia kesi ya kuua bila kukusudia ya mwigizaji Elizabeth Michaeli. Kuna watakaolia na watakaofurahi.
Lulu anatuhumiwa kumuua msanii Kanumba => Tanzanian actor Steven Kanumba reported dead
Mahakama kuu ilimtia mtuhumiwa na kumkuta na kesi ya kujibu => Mahakama kuu imesema msanii Elizabeth Michael (Lulu) ana kesi ya kujibu
Wazee wa baraza wasema 'Lulu' ameua bila kukusudia, Jaji kutoa hukumu Novemba 13
Usikose kufuatilia thread hii kujua mbivu na mbichi
*******Updates******
Mahakama kuu imemhukumu msanii wa filamu nchini, Elizabeth Michael maarufu kama Lulu baada ya kumtia hatiani kwa kosa la kuua bila kukusudia aliyekuwa muigizaji mwenzake, Stephen Kanumba Julai 4, 2012 eneo la Sinza Vatican jijini Dar es Salaam.
Asubuhi ya Novemba 13, Jaji Sam Rumanyika alisoma maelezo ya mwenendo wa kesi yaliyotolewa na upande wa serikali ukiongozwa na wakili Faraja George na upande wa utetezi ulioongozwa na wakili Peter Kibatala.
Jaji Rumanyika alisema mshtakiwa Lulu alikuwa na uhusiano wa kimapenzi na marehemu kwa miezi minne na alikuwa mtu wa mwisho kuwa na marehemu Stephen Kanumba kabla ya kuanza mzozo uliosababisha kifo chake.
Katika hukumu yake, Jaji Rumanyika amesema Lulu alijichanganya katika maelezo yake mahakamani na alishindwa kuiambia mahakama historia ya marehemu jambo lililotazamiwa ni kutokana na muda wa uhusiano waliokuwa nao.
Mahakama imeonyesha kushangazwa na madai ya mtuhumiwa kwamba alipigwa na marehemu kiasi ya kitishiwa kuuawa lakini hakuna alichofanya kujitetea, ameshindwa kuiambia mahakama iwapo Kanumba alianguka wakati akimburuza kumrudisha chumbani kufuatia alichodai Kanumba alikuwa amelewa wakati wa tukio.
Kuhusiana na umri mdogo wa Lulu wakati tukio hilo linatokea mwaka 2012, Jaji Rumanyika amesema sheria ya kumlinda mtoto haimpi kinga Lulu kwa sababu huo alikuwa akifanya mambo ya watu wazima.
Akihitimisha, Jaji Rumanyika alisema hakuna mashaka na mahakama imejiridhisha kuwa kifo cha Kanumba kilitokana na ugomvi.
Wakili wa Lulu, Peter Kibatala amesema wanatarajia kukata rufaa dhidi ya hukumu hio na na wakati rufaa inafanyiwa kazi wataomba dhamana.
-------------------------------------
HUKUMU
IN THE HIGH COURT OF TANZANIA
(DAR ES SALAAM DISTICT REGISTRY)
AT DAR ES SALAAM
CRIMINAL SESSIONS CASE NO. 125 OF 2012
REPUBLIC
VERSUS
ELIZABETH MICHAEL KIMEMETA @ LULU
JUDGMENT
26th Oct. & 13th Nov. 2017
RUMANYIKA, J.
Elizabeth Michael Kimemeta @ Lulu (the accused) according to records arraigned for the 1st time in the Resident Magistrate’s Court of DSM at Kisutu (the committal court) on 12/04/2012, is charged under Section 195 of the Penal Code Cap. 16 RE 2002 (the code) for unlawfully killing Steven Charles Kanumba (the deceased) on 7/4/2012 at Sinza Vatcan area, district of Kinondoni Dar es Salaam.
Ms. Faraja George (assisted by Mr. Yusufu Aboud) learned state attorneys appeared for the Republic. Mr. P. Kibatala learned counsel appeared for the accused. I sat with Messrs Omary Panzi and Rajab Mlawa. Also Ms. Sarah John gentlemen and lady assessors.
With a bid, in accordance with cardinal law, that they prove their case beyond reasonable doubts, the prosecution had four (4) witnesses. The accused was but herself the sole defence witness.
Pw1 one Seti Bosco (30) in a nutshell stated that he was artist (actor) and brother of the deceased. With whom stayed under the roof at Sinza Vatcan in the city (the scene). That the accused and deceased had been lovers. That as the two house mates were now in the material midnight preparing, but about to vacate just for outing, the accused arrived driving. She parked in the yard and got in. That shortly he (Pw1) overheard the lovers quarrel over accused picking calls and talked to boyfriends in front of the deceased. That the physical confrontation extended to the deceased’s material bed room. That eventually, the accused knocked at his door. Reportedly the deceased fell down and was unconscious. Pw1 also noticed marks on the wall. Which suggested one had hit it and fell down. He rushed for the family doctor and left the accused behind but not at ease. That on arrival with the doctor, he found the accused left. That they rushed the deceased to. Only to find on arrival at Muhimbili National Hospital that the deceased was no more. They accordingly reported the matter instantly. Early in the very morning the police arrested the accused.
Cross examined by Mr. P. Kibatala, Pw1 stated that at times he heard the accused crying. The latter attempted to escape but failed. As the accused held her tight. That all this happened in darkness. As electricity (power) was off. Copy of the statement Pw1 made to the police – Exhibit. “D1”).
Questioned by a court assessor, Pw1 stated that it was only either the accused or the deceased who could know what exactly befell on the latter.
Pw2 Dr Paplas Kagaiga (33) a qualified but self-employed medical officer of Manzese stated that as he was at work place in the material midnight, Pw1 reported the incident and picked him (the family doctor). That he examined and found the deceased’s sugar level – NORMAL. But hypotension. Then they rushed him (deceased) to Muhimbili Hospital. Whereby a medical doctor confirmed and declared him dead. That he (Pw2) lead to arresting by police of the accused early in the morning at Bamaga area in the city early in the next morning.
Cross examined by Mr. P. Kibatala, Pw2 stated that he took no trouble to observe what had been atmosphere in the bed room before. Nor did he examine and establish alcoholic content at the time in the deceased’s body. That even extreme emotions could cause acute heart attack.
Pw3 PF 1159 ASP Ester Zephania (47) stated that she was, on or by the material time at Oyster Bay police station on duty. Now duly assigned and at the scene at about 03.00 am, a group of seven (inclusive of an artist called Ray led her to the scene. Pw1 narrated to her the scenario. Whereby she found in the bed room pillows abnormally scattered and bed sheets hanging onto the floor. That there was around some wine/whisky in a glass, and a bottle of sprite soft drink. And also apparently an intact panga partially under the bed. That a man (allegedly the family’s doctor) assisted them arrest the accused say two hours later and accordingly charged her.
Cross examined by Mr. P. Kibatala, Pw3 stated that following the incident, and, as the accused complained not feeling ok, she took her to hospital but could not know what exactly was the problem.
Pw4 DR. Innocent Justine Mosha (45) a specialist medical doctor and Pathologist of Muhimbili National Hospital stated that with respect to the incident, he, in corroboration with Dr. Henry Mwakyoma conducted the material post mortem examination. Hence the report. (Exh. P1) Whereby it was established that the deceased had sustained no external injuries. But back head sustained subscul hymatomae, brain tissue swollen, veins congested and bottom part of the brain compressed. All leading also to lungs being congested. But heart and other organs essentially normal. All this probably caused by external blunt impact. That brain concussion may last short yes. But sometimes irreversible (Exh. “P1” identified). That he referred to the Government chemist the deceased’s liver (portion of), some stomach contents and also drinks he found at the scene for examination. That alcohol may have not resulted into the kind of deaths but change of behaviors of human kind (the deceased).
The accused (22) in her defence stated that just having had communicated with, say the now four (4) months lover (deceased) and the latter invited her, she just went to the scene. Just before each one of them proceeded to own direction for the midnight walks, and the seemingly drunk deceased was there, (saw some whisky in a glass & bottle of sprite), her friends of Mikocheni with whom had the plan prio called her. That just before she picked the call, and feared the plan being to the ordinarily violent & unnecessarily jealous lover, (who barred her from going out, alone), she went aside. So that could now talk to the friends freely. That instead, the deceased suspected her talking to by friends. That the drunk deceased followed her up furiously and emotionally assaulted her. He, only in a towel chased and caught her say 27.5 paces away hidden in a dark corner. As electrical light (power) was at the material time off.
That she resisted but the deceased held her tight and forcefully took her back to the bed room. That still the accused picked a panga and threatened to kill her. That having locked the door, the deceased continued assaulting her but by panga blades. Irrespective throughout of her cries. Then the deceased fell down. She ran away and locked herself in the toilet very much terrified. That from there, the accused once again heard a hit. And it was calm. She got out, examined him and found the deceased was no longer responding. But thought he pretended collapsed. She was afraid and reported it to Pw1. That as the latter had rushed for a doctor, she could not resist the situation any further. She quitted. Having had expressed intention to Pw1. That she never went back home – Tabata. Instead she drove to Coco-Beach and had a rest there. That trickily, Pw2 led the policemen and the latter arrested her early in the material morning at Bamaga. That now at Oyster Bay Police Station, they recorded her statement – Exhibit. “D2”. That following the incident, and having sustained some physical injuries, Pw3 took her to hospital and got treated. That she did not in any way cause death of the deceased.
The gentlemen and lady assessors unanimously opined against the accused.
The prosecution case hinges only on circumstantial evidence (not at all even crews of direct evidence). It is circumstantial in the sense, and this the accused admitted that alone she was the last person the deceased (lover) had company of. It is long settle principle and law that unless under the circumstances the accused gave a sufficient account and explanation as for circumstances leading to death of the deceased, adverse inference was to be drawn against her. (See the case of A. Bakari and Another V.R. (1992) TLR 11 and Mathayo Mwalimu & Another V R Criminal Appeal No. 147 of 2008 (CA) unreported. Nor should this be mistaken for requiring the accused to prove her innocence.
Circumstantial evidence forms basis of conviction if it leads irresistibly to an inference of guilt of the accused. Incapable of any other reasonable explanation. See the case of Rex V. Kipkering Arap Kusked & Another (1949) EACA 135. Cited with approval in Rajabu Taratibu V R, Criminal Appeal No. 237 of 2014 (CA) – unreported.
As I am now looking at the account given by the accused, may I also say it that Pw1 said and the accused admitted it. That it began like ordinary quarrels. Then a fight between the lovers (accused and deceased).
According to Collins Gem English Dictionary – 2004; A fight is defined as struggle (against) in battle or physical combat. Struggle to overcome someone of or aggressive conflict between two (groups of people) ; quarrel or contest, resistance.
Falling down of the accused in a fight, pushed/pulled/squeezed or otherwise, is no doubts expected. The deceased, as at times suggested by the accused may have, been so drank that could naturally be falling and indeed fell down yes! But the accused was unreasonably inconsistent and contradicted herself. As, according to her, the deceased ably chased and managed to catch her say 27.05 paces away and, successfully dragged her back to the material bed room. This court was not told whether there in between the deceased fell down and or otherwise went astray.
That’s one. Secondly, unless the statement of DR. Josephine S. Mushumbusi (under section 34 B of the evidence Act Cap. 6 RE 2002 (admitted – Exhibit “D2”) was, as a matter of practice corroborated, (actually it wasn’t), it leaves a million questions unanswered; One, the document is neither a medical chit/prescription card nor anything for the purposes.
Two, we had, in this old case only DR. Paplas Kagaiga (Pw2) who posed, and both Pw1 and the accused recognized him as the family’s doctor. The said DR Josephine therefore was not even suggested to being one of the family’s doctors. Only Pw2 therefore should have been expected in that regard to also give evidence on the deceased’s health history.
Three, this crucial piece of evidence reasonably, the accused in her evidence in chief should have told the court. But was silent. With the four (4) good months they had been lovers, the accused may have had known about the alleged toxic cholesterol – related heart and brain disease if at all the deceased suffered one.
Four, it defeats both logic and common sense that even where the deceased continuously beat her up, and, if at all went as far as threatening to kill her, the accused remained mute. Not even attempting to pushing/keep away the violent assailant. Like she opted to taking a biblical approach. Wherever one slapped on the left turn your right cheak to him!
The four (4) points herein above attempted and discussed may glaringly show that just being the last person seen with the deceased, the accused did not even on balance of probabilities give reasonable and sufficient account. Leave alone account on the circumstances leading to the death. Either it is the deceased or the accused (nobody else) that would tell. Now that the deceased cannot, except spiritually be called back, in which case however, this court will have no powers to receive evidence, for reasons known to her, the survivor accused didn’t tell, the court will have no option but to draw adverse inference as hereby do.
Perhaps one may come forward with a point that as now stands, the accused (22) was at the time i.e. 7/4/2012 only seventeen (17) years old. (not of majority age). And perhaps that she could not have appreciated whatever she may have done. Granted. But there is, to every general rule exception. The case at hand is no exception:-
A child girl of accused type who, according to exhibit “D2” reciprocates by calling a man (deceased) husband. Accused admittedly does it!
a child girl of accused type who dares and confidently decides against will of parents. When and where to kill nights, also when should not. The accused admits doing it!
And, a child accused who, on her own and or companions have midnight outings, visits lover before and proceeds to elsewhere and enjoy herself. This also the accused confidently did. (The best of witnesses is an accused who implicates himself). See Twaha Ally & 5 others V.R. Criminal Appeal No. 78 of 2008 (CA) unreported.
The accused therefore is not with all intents and purposes a child intended to be protected under the law (Cap. 13 R.E. 2002). If a “child” like in this case happened can ably behave and lead life like adults do, and yet expected protection under the law of the child, then one should expect one day to see (God forbid) those few adults behaving childish to seek amnesty under the legislation. Under the umbrella of the constitutionally guaranteed equality before the law. I think it is maturity level of, not a number of birth days that a subject may have celebrated that counts. Getting older is one thing his/her maturity is the other. This reminds me of the everlasting and memorable words of wisdom of Georges C.J. (as then was) in his book – The Doctrine of Precedents. Which in effect say that in a rapid changing socio- economic societies like Tanzania, lawyers and judges need to think and accordingly act. If their mind will stand – stand still they will have ultimately failed to demonstrate and prove rule and equality of law the reality.
May I add therefore that a court which dares not to do whatever had not been said by the law should always expect a society without development of law.
Judges therefore if cannot, whenever need be interpret laws in such broader perspective they will be taken in a day light as having failed to discharge their constitutional mandate. I wish I was not one of them.
No doubts as said before, death of the deceased was a result of fight. No wonder the accused was only charged with manslaughter. See the case of Israel Misezero @ Manani V.R. Criminal Appeal No. 117 of 2006. Quoted in James Kabole V.R. Criminal Appeal No. 435 “B” of 2013. (Both unreported) If I was to give it a broader interpretation as fight runs from verbal exchanging to physical confrontation. Sometimes it begins with words negligently/recklessly uttered and or jokes. Whether or not it was intended to annoy/harm another person is in my considered opinion immaterial. The law relating to offence of manslaughter intends thus that people should always be careful and do all but reservedly.
I am also mindful of the principle that proof of motive in homicide offences is immaterial. Suffices to say it that much as, according to the accused it was the deceased’s love jealous that triggered the fight, the moment the accused chose it and joined the “game of love,” characteristics of which include, but not limited to jealous naturally, she had no choice. It is very unfortunate that development jealous promoted development but to the contrary, love jealous promoted massacres. No wonder Kiswahili saying “MAPENZI NI UPOFU NA HUUA”. I don’t remember to have come across researchers and artists address the hypocrite nature of “jealous”. The accused was in my view obliged to always observe rules of the game. In other words now that admittedly she knew it prior that the deceased was jelous and at times unreasonably, the accused should have suspended picking the “triggering call.” It being of fellow girls or of boy friends if at all. Short of which on that one, the accused’s stance and power in my view was of “NOW OR NEVER” BASIS and or COME WHAT MAY (Kiswahili artistry saying “kama noma na iwe noma”).
As I am winding up this judgment may I also dare not to forget the Philosophical memorable and industrious words of Charlie Chaplin:-
You need power only when you want to do something Harmful, otherwise Love is Enough to get everything done (emphasis added). (The underline is mine).
When all is said and done, I will, as hereby do convict the accused under S. 195 of the code.
Right of appeal explained. Having considered the obtaining circumstances & more so the mitigation; she is hereby sentenced to term of two (2) years in jail.
S. M. Rumanyika
JUDGE
26/10/2017
Delivered under my hand and seal of the court in court this 13/11/2017 in the presence of Ms. Faraji George, Yusuph Aboud, Batilda Mushi State Attorneys and Peter Kibatala learned defence counsel.
S. M. Rumanyika
JUDGE
13/11/2017
Leo ndio leo Tanzania itasimama kwa muda kufuatilia kesi ya kuua bila kukusudia ya mwigizaji Elizabeth Michaeli. Kuna watakaolia na watakaofurahi.
Lulu anatuhumiwa kumuua msanii Kanumba => Tanzanian actor Steven Kanumba reported dead
Mahakama kuu ilimtia mtuhumiwa na kumkuta na kesi ya kujibu => Mahakama kuu imesema msanii Elizabeth Michael (Lulu) ana kesi ya kujibu
Wazee wa baraza wasema 'Lulu' ameua bila kukusudia, Jaji kutoa hukumu Novemba 13
Usikose kufuatilia thread hii kujua mbivu na mbichi
*******Updates******
Mahakama kuu imemhukumu msanii wa filamu nchini, Elizabeth Michael maarufu kama Lulu baada ya kumtia hatiani kwa kosa la kuua bila kukusudia aliyekuwa muigizaji mwenzake, Stephen Kanumba Julai 4, 2012 eneo la Sinza Vatican jijini Dar es Salaam.
Asubuhi ya Novemba 13, Jaji Sam Rumanyika alisoma maelezo ya mwenendo wa kesi yaliyotolewa na upande wa serikali ukiongozwa na wakili Faraja George na upande wa utetezi ulioongozwa na wakili Peter Kibatala.
Jaji Rumanyika alisema mshtakiwa Lulu alikuwa na uhusiano wa kimapenzi na marehemu kwa miezi minne na alikuwa mtu wa mwisho kuwa na marehemu Stephen Kanumba kabla ya kuanza mzozo uliosababisha kifo chake.
Katika hukumu yake, Jaji Rumanyika amesema Lulu alijichanganya katika maelezo yake mahakamani na alishindwa kuiambia mahakama historia ya marehemu jambo lililotazamiwa ni kutokana na muda wa uhusiano waliokuwa nao.
Mahakama imeonyesha kushangazwa na madai ya mtuhumiwa kwamba alipigwa na marehemu kiasi ya kitishiwa kuuawa lakini hakuna alichofanya kujitetea, ameshindwa kuiambia mahakama iwapo Kanumba alianguka wakati akimburuza kumrudisha chumbani kufuatia alichodai Kanumba alikuwa amelewa wakati wa tukio.
Kuhusiana na umri mdogo wa Lulu wakati tukio hilo linatokea mwaka 2012, Jaji Rumanyika amesema sheria ya kumlinda mtoto haimpi kinga Lulu kwa sababu huo alikuwa akifanya mambo ya watu wazima.
Akihitimisha, Jaji Rumanyika alisema hakuna mashaka na mahakama imejiridhisha kuwa kifo cha Kanumba kilitokana na ugomvi.
Wakili wa Lulu, Peter Kibatala amesema wanatarajia kukata rufaa dhidi ya hukumu hio na na wakati rufaa inafanyiwa kazi wataomba dhamana.
HUKUMU
IN THE HIGH COURT OF TANZANIA
(DAR ES SALAAM DISTICT REGISTRY)
AT DAR ES SALAAM
CRIMINAL SESSIONS CASE NO. 125 OF 2012
REPUBLIC
VERSUS
ELIZABETH MICHAEL KIMEMETA @ LULU
JUDGMENT
26th Oct. & 13th Nov. 2017
RUMANYIKA, J.
Elizabeth Michael Kimemeta @ Lulu (the accused) according to records arraigned for the 1st time in the Resident Magistrate’s Court of DSM at Kisutu (the committal court) on 12/04/2012, is charged under Section 195 of the Penal Code Cap. 16 RE 2002 (the code) for unlawfully killing Steven Charles Kanumba (the deceased) on 7/4/2012 at Sinza Vatcan area, district of Kinondoni Dar es Salaam.
Ms. Faraja George (assisted by Mr. Yusufu Aboud) learned state attorneys appeared for the Republic. Mr. P. Kibatala learned counsel appeared for the accused. I sat with Messrs Omary Panzi and Rajab Mlawa. Also Ms. Sarah John gentlemen and lady assessors.
With a bid, in accordance with cardinal law, that they prove their case beyond reasonable doubts, the prosecution had four (4) witnesses. The accused was but herself the sole defence witness.
Pw1 one Seti Bosco (30) in a nutshell stated that he was artist (actor) and brother of the deceased. With whom stayed under the roof at Sinza Vatcan in the city (the scene). That the accused and deceased had been lovers. That as the two house mates were now in the material midnight preparing, but about to vacate just for outing, the accused arrived driving. She parked in the yard and got in. That shortly he (Pw1) overheard the lovers quarrel over accused picking calls and talked to boyfriends in front of the deceased. That the physical confrontation extended to the deceased’s material bed room. That eventually, the accused knocked at his door. Reportedly the deceased fell down and was unconscious. Pw1 also noticed marks on the wall. Which suggested one had hit it and fell down. He rushed for the family doctor and left the accused behind but not at ease. That on arrival with the doctor, he found the accused left. That they rushed the deceased to. Only to find on arrival at Muhimbili National Hospital that the deceased was no more. They accordingly reported the matter instantly. Early in the very morning the police arrested the accused.
Cross examined by Mr. P. Kibatala, Pw1 stated that at times he heard the accused crying. The latter attempted to escape but failed. As the accused held her tight. That all this happened in darkness. As electricity (power) was off. Copy of the statement Pw1 made to the police – Exhibit. “D1”).
Questioned by a court assessor, Pw1 stated that it was only either the accused or the deceased who could know what exactly befell on the latter.
Pw2 Dr Paplas Kagaiga (33) a qualified but self-employed medical officer of Manzese stated that as he was at work place in the material midnight, Pw1 reported the incident and picked him (the family doctor). That he examined and found the deceased’s sugar level – NORMAL. But hypotension. Then they rushed him (deceased) to Muhimbili Hospital. Whereby a medical doctor confirmed and declared him dead. That he (Pw2) lead to arresting by police of the accused early in the morning at Bamaga area in the city early in the next morning.
Cross examined by Mr. P. Kibatala, Pw2 stated that he took no trouble to observe what had been atmosphere in the bed room before. Nor did he examine and establish alcoholic content at the time in the deceased’s body. That even extreme emotions could cause acute heart attack.
Pw3 PF 1159 ASP Ester Zephania (47) stated that she was, on or by the material time at Oyster Bay police station on duty. Now duly assigned and at the scene at about 03.00 am, a group of seven (inclusive of an artist called Ray led her to the scene. Pw1 narrated to her the scenario. Whereby she found in the bed room pillows abnormally scattered and bed sheets hanging onto the floor. That there was around some wine/whisky in a glass, and a bottle of sprite soft drink. And also apparently an intact panga partially under the bed. That a man (allegedly the family’s doctor) assisted them arrest the accused say two hours later and accordingly charged her.
Cross examined by Mr. P. Kibatala, Pw3 stated that following the incident, and, as the accused complained not feeling ok, she took her to hospital but could not know what exactly was the problem.
Pw4 DR. Innocent Justine Mosha (45) a specialist medical doctor and Pathologist of Muhimbili National Hospital stated that with respect to the incident, he, in corroboration with Dr. Henry Mwakyoma conducted the material post mortem examination. Hence the report. (Exh. P1) Whereby it was established that the deceased had sustained no external injuries. But back head sustained subscul hymatomae, brain tissue swollen, veins congested and bottom part of the brain compressed. All leading also to lungs being congested. But heart and other organs essentially normal. All this probably caused by external blunt impact. That brain concussion may last short yes. But sometimes irreversible (Exh. “P1” identified). That he referred to the Government chemist the deceased’s liver (portion of), some stomach contents and also drinks he found at the scene for examination. That alcohol may have not resulted into the kind of deaths but change of behaviors of human kind (the deceased).
The accused (22) in her defence stated that just having had communicated with, say the now four (4) months lover (deceased) and the latter invited her, she just went to the scene. Just before each one of them proceeded to own direction for the midnight walks, and the seemingly drunk deceased was there, (saw some whisky in a glass & bottle of sprite), her friends of Mikocheni with whom had the plan prio called her. That just before she picked the call, and feared the plan being to the ordinarily violent & unnecessarily jealous lover, (who barred her from going out, alone), she went aside. So that could now talk to the friends freely. That instead, the deceased suspected her talking to by friends. That the drunk deceased followed her up furiously and emotionally assaulted her. He, only in a towel chased and caught her say 27.5 paces away hidden in a dark corner. As electrical light (power) was at the material time off.
That she resisted but the deceased held her tight and forcefully took her back to the bed room. That still the accused picked a panga and threatened to kill her. That having locked the door, the deceased continued assaulting her but by panga blades. Irrespective throughout of her cries. Then the deceased fell down. She ran away and locked herself in the toilet very much terrified. That from there, the accused once again heard a hit. And it was calm. She got out, examined him and found the deceased was no longer responding. But thought he pretended collapsed. She was afraid and reported it to Pw1. That as the latter had rushed for a doctor, she could not resist the situation any further. She quitted. Having had expressed intention to Pw1. That she never went back home – Tabata. Instead she drove to Coco-Beach and had a rest there. That trickily, Pw2 led the policemen and the latter arrested her early in the material morning at Bamaga. That now at Oyster Bay Police Station, they recorded her statement – Exhibit. “D2”. That following the incident, and having sustained some physical injuries, Pw3 took her to hospital and got treated. That she did not in any way cause death of the deceased.
The gentlemen and lady assessors unanimously opined against the accused.
The prosecution case hinges only on circumstantial evidence (not at all even crews of direct evidence). It is circumstantial in the sense, and this the accused admitted that alone she was the last person the deceased (lover) had company of. It is long settle principle and law that unless under the circumstances the accused gave a sufficient account and explanation as for circumstances leading to death of the deceased, adverse inference was to be drawn against her. (See the case of A. Bakari and Another V.R. (1992) TLR 11 and Mathayo Mwalimu & Another V R Criminal Appeal No. 147 of 2008 (CA) unreported. Nor should this be mistaken for requiring the accused to prove her innocence.
Circumstantial evidence forms basis of conviction if it leads irresistibly to an inference of guilt of the accused. Incapable of any other reasonable explanation. See the case of Rex V. Kipkering Arap Kusked & Another (1949) EACA 135. Cited with approval in Rajabu Taratibu V R, Criminal Appeal No. 237 of 2014 (CA) – unreported.
As I am now looking at the account given by the accused, may I also say it that Pw1 said and the accused admitted it. That it began like ordinary quarrels. Then a fight between the lovers (accused and deceased).
According to Collins Gem English Dictionary – 2004; A fight is defined as struggle (against) in battle or physical combat. Struggle to overcome someone of or aggressive conflict between two (groups of people) ; quarrel or contest, resistance.
Falling down of the accused in a fight, pushed/pulled/squeezed or otherwise, is no doubts expected. The deceased, as at times suggested by the accused may have, been so drank that could naturally be falling and indeed fell down yes! But the accused was unreasonably inconsistent and contradicted herself. As, according to her, the deceased ably chased and managed to catch her say 27.05 paces away and, successfully dragged her back to the material bed room. This court was not told whether there in between the deceased fell down and or otherwise went astray.
That’s one. Secondly, unless the statement of DR. Josephine S. Mushumbusi (under section 34 B of the evidence Act Cap. 6 RE 2002 (admitted – Exhibit “D2”) was, as a matter of practice corroborated, (actually it wasn’t), it leaves a million questions unanswered; One, the document is neither a medical chit/prescription card nor anything for the purposes.
Two, we had, in this old case only DR. Paplas Kagaiga (Pw2) who posed, and both Pw1 and the accused recognized him as the family’s doctor. The said DR Josephine therefore was not even suggested to being one of the family’s doctors. Only Pw2 therefore should have been expected in that regard to also give evidence on the deceased’s health history.
Three, this crucial piece of evidence reasonably, the accused in her evidence in chief should have told the court. But was silent. With the four (4) good months they had been lovers, the accused may have had known about the alleged toxic cholesterol – related heart and brain disease if at all the deceased suffered one.
Four, it defeats both logic and common sense that even where the deceased continuously beat her up, and, if at all went as far as threatening to kill her, the accused remained mute. Not even attempting to pushing/keep away the violent assailant. Like she opted to taking a biblical approach. Wherever one slapped on the left turn your right cheak to him!
The four (4) points herein above attempted and discussed may glaringly show that just being the last person seen with the deceased, the accused did not even on balance of probabilities give reasonable and sufficient account. Leave alone account on the circumstances leading to the death. Either it is the deceased or the accused (nobody else) that would tell. Now that the deceased cannot, except spiritually be called back, in which case however, this court will have no powers to receive evidence, for reasons known to her, the survivor accused didn’t tell, the court will have no option but to draw adverse inference as hereby do.
Perhaps one may come forward with a point that as now stands, the accused (22) was at the time i.e. 7/4/2012 only seventeen (17) years old. (not of majority age). And perhaps that she could not have appreciated whatever she may have done. Granted. But there is, to every general rule exception. The case at hand is no exception:-
A child girl of accused type who, according to exhibit “D2” reciprocates by calling a man (deceased) husband. Accused admittedly does it!
a child girl of accused type who dares and confidently decides against will of parents. When and where to kill nights, also when should not. The accused admits doing it!
And, a child accused who, on her own and or companions have midnight outings, visits lover before and proceeds to elsewhere and enjoy herself. This also the accused confidently did. (The best of witnesses is an accused who implicates himself). See Twaha Ally & 5 others V.R. Criminal Appeal No. 78 of 2008 (CA) unreported.
The accused therefore is not with all intents and purposes a child intended to be protected under the law (Cap. 13 R.E. 2002). If a “child” like in this case happened can ably behave and lead life like adults do, and yet expected protection under the law of the child, then one should expect one day to see (God forbid) those few adults behaving childish to seek amnesty under the legislation. Under the umbrella of the constitutionally guaranteed equality before the law. I think it is maturity level of, not a number of birth days that a subject may have celebrated that counts. Getting older is one thing his/her maturity is the other. This reminds me of the everlasting and memorable words of wisdom of Georges C.J. (as then was) in his book – The Doctrine of Precedents. Which in effect say that in a rapid changing socio- economic societies like Tanzania, lawyers and judges need to think and accordingly act. If their mind will stand – stand still they will have ultimately failed to demonstrate and prove rule and equality of law the reality.
May I add therefore that a court which dares not to do whatever had not been said by the law should always expect a society without development of law.
Judges therefore if cannot, whenever need be interpret laws in such broader perspective they will be taken in a day light as having failed to discharge their constitutional mandate. I wish I was not one of them.
No doubts as said before, death of the deceased was a result of fight. No wonder the accused was only charged with manslaughter. See the case of Israel Misezero @ Manani V.R. Criminal Appeal No. 117 of 2006. Quoted in James Kabole V.R. Criminal Appeal No. 435 “B” of 2013. (Both unreported) If I was to give it a broader interpretation as fight runs from verbal exchanging to physical confrontation. Sometimes it begins with words negligently/recklessly uttered and or jokes. Whether or not it was intended to annoy/harm another person is in my considered opinion immaterial. The law relating to offence of manslaughter intends thus that people should always be careful and do all but reservedly.
I am also mindful of the principle that proof of motive in homicide offences is immaterial. Suffices to say it that much as, according to the accused it was the deceased’s love jealous that triggered the fight, the moment the accused chose it and joined the “game of love,” characteristics of which include, but not limited to jealous naturally, she had no choice. It is very unfortunate that development jealous promoted development but to the contrary, love jealous promoted massacres. No wonder Kiswahili saying “MAPENZI NI UPOFU NA HUUA”. I don’t remember to have come across researchers and artists address the hypocrite nature of “jealous”. The accused was in my view obliged to always observe rules of the game. In other words now that admittedly she knew it prior that the deceased was jelous and at times unreasonably, the accused should have suspended picking the “triggering call.” It being of fellow girls or of boy friends if at all. Short of which on that one, the accused’s stance and power in my view was of “NOW OR NEVER” BASIS and or COME WHAT MAY (Kiswahili artistry saying “kama noma na iwe noma”).
As I am winding up this judgment may I also dare not to forget the Philosophical memorable and industrious words of Charlie Chaplin:-
You need power only when you want to do something Harmful, otherwise Love is Enough to get everything done (emphasis added). (The underline is mine).
When all is said and done, I will, as hereby do convict the accused under S. 195 of the code.
Right of appeal explained. Having considered the obtaining circumstances & more so the mitigation; she is hereby sentenced to term of two (2) years in jail.
S. M. Rumanyika
JUDGE
26/10/2017
Delivered under my hand and seal of the court in court this 13/11/2017 in the presence of Ms. Faraji George, Yusuph Aboud, Batilda Mushi State Attorneys and Peter Kibatala learned defence counsel.
S. M. Rumanyika
JUDGE
13/11/2017
