The Republic vs Issa Khalfan Masholi @ Mashori (Criminal Sessions Case No. 15553 of 2024) [2026] TZHC 2979 (5 June 2026)

1 | P a g e IN THE HIGH COURT OF TANZANIA (DODOMA SUB REGISTRY) AT DODOMA SITTING AT SINGIDA CRIMINAL SESSIONS CASE NO. 15553 OF 2024 THE REPUBLIC VERSUS ISSA KHALFAN MASHOLI@ MASHORI RULING ON SENTENCE Date of last order: 02/06/2026 Date of Ruling: 05/06/2026 LONGOPA, J.: The offender, Issa Khalfan Masholi @ Mashori was convicted on his own plea of guilty to the offence of Manslaughter Contrary to Sections 195 and 198 of the Penal Code, Cap 16 R.E. 2022. The offender stood arraigned for unlawful death Hawa Yusuph Madai which occurred on 19 November 2023 at Mwaja area in Mandewa Ward within Unyakumi Division of Singida District and Region.

2 | P a g e According to the available facts of the case the offender and the victim were spouses living together as husband and wife having frequent family squabbles as a result of the offender’s attempt to sell the matrimonial home but victim constantly refusing on account of welfare of the family as there was no alternative accommodation in that house was sold. Furthermore, the offender had in 2018 serious beaten the victim resulting into fracture of the victim’s hand and a lso, between 15/11/2023 to 16/11/2023 the offender attempted to strangulate the neck of the victim, Hawa Yusuph Madai before she got assistance thus managed to escape . The offender had threatened to terminate the life of the victim as a result of the frequent misunderstandings. On 19 November 2023, at round 23:00 hours offender attack ed Hawa Yusuph Madai alleging that the victim wa s stumbling block to achieve the attempt to sell the land and house and in course of defending oneself a fight arose resulting into the offender overpowering the victim, pressing victim’s neck forcefully resulting into death of the victim. Upon Postmortem examination being conducted, the cause of

3 | P a g e death was brain hypoxia secondary to manual strangulation revealing the excessive force exerted by the offender. It was also record that there was nothing on the victim’s body externally on injuries, thus samples were taken from the victim’s body of the deceased’s finger and affected areas of neck of the victim where some marks were visible and samples of Buccal swab on mouth of the accused were taken for DNA Analysis at Government Chemist Laboratory Authority (GCLA) whereby the DNA Analysis revealed there were correspondence of the DNA from the samples taken from the victim neck and those taken from the accused in Buccal swab. It was on basis of this scientific analysis that assisted in arraignment of the offender to this court for the Manslaughter offence. The Prosecution was led by Mr. Nehemia Kilimuhana and Ms. Foibe Malecela, learned State Attorneys while the defence enjoyed the legal services Mr. Cosmas Luambano, learned advocate. This court having convicted the offender on his own plea of guilty, the parties were invited to address the court on appropriate sentence.

4 | P a g e Ms. Foibe Malecela, learned State Attorney intimated this court that the prosecution had no criminal records of the offender for previous convictions. However, in course of delivering the sentence, the learned State Attorney urged this court to impose severe penalty against the offender on account of the following: One , t he victim was a mother of three children and the cause of death was her attempt to ensure the welfare of her family in terms of children. Two, t hough the offender and victim were spouses, the offender ought not to unlawfully cause death of his wife for refusal to sell the house that they were dwelling in as a family as there was no alternative accommodation. Three , the offender demonstrated his willingness to terminate life the victim as he attempted to strangulate the victim prior to incident date. At this juncture, the Prosecution prayed that very severe punishment be awarded to the offender to send a lesson to the society not to take law in their own hands. On the other hand, Mr. Cosmas Luambano, learned advocate prayed for lenient sentence to be imposed against the offender on the following grounds, namely: One, that t he offender has served money and time of the witnesses of the prosecution who could have testified.

5 | P a g e Two, t he offender is an adult person aged 58 years old and he has dependants including six children that he was blessed to have with the victim. Three , the offender is depended by his mother who is aged more than 80 years old. Four, the offender had spent two years and six months in remand prison thus he has learnt a lesson for his action. Five , the incident indicates that the offender would appear to h as been drunk and upon the occurrence, he never ran, he reported the matter to children and neighbours which indicate humanity as he could had fled to evade justice. On account of all these reasons, it was a humble prayer of counsel for defence that this court be pleased award lenient penalty to the offender. Having thoroughly considered the submissions by the parties on the appropriate sentence in the circumstances of the matter, this court is enjoined to determine the sentence guided by the aggravating and mitigating factors in light of the existing legal principles both statutory and case law. It is important to state onset that penalty of manslaughter is categorically provided for under section 198 of the Penal Code, Cap 16 R.E. 2022. The provision states that:

6 | P a g e 198. A person who commits manslaughter is liable to imprisonment for life. The language of the statute on the sentence uses the phrase “is liable to life imprisonment” which means that it is not mandatory for a trial court to impose life imprisonment sentence in all cases of Manslaughter but the maximum sentence should be the life imprisonment. This position was a well-established legal position in this jurisdiction as demonstrated in a plethora of authorities. For instance, in the case of Anna Moses Chisano vs Republic (Criminal Application No. 42/01 of 2021) [2024] TZCA 167 (6 March 2024) (TANZLII), at pages 8-9, the Court held that: The bolded words 'shall be liable to' do not mean that the trial court is mandatorily required to impose the stipulated penalty of life imprisonment but rather bestow upon the trial court a discretionary power to impose, depending on the circumstance of each case and upon considering the mitigating and aggravating

7 | P a g e factors, any appropriate sentence up to the maximum limit of life imprisonment. The erstwhile East Africa Court of Appeal in the case of Opoya v. Uganda [1967] E.A. 752 originating from Uganda defined the phrase "shall be liable to" as follows: "It seems to us beyond argument that the words "shall be liable to" do not in their ordinary meaning require the imposition of the stated penalty but merely express the stated penalty which may be imposed at the discretion of the court. In other words, they are not mandatory but provide a maximum sentence only and while the liability existed the court might not see fit to impose it " The above was quoted with approval by this Court in the cases of Anthony Samwel v. The Republic (Criminal Appeal No. 48 of 2010) [2012] TZCA 140 (8 May, 2012; TANZLII), Faruku Mushenga v. The Republic (Criminal Appeal No. 356 of 2014) [2015] TZCA 292 (18 February, 2015; TANZLII), Nyamhanga s/o Magesa v. The Republic (Criminal Appeal No. 470 of 2015) [2017] TZCA 232 (12 December, 2017; TANZLII), Bahati John v. The Republic (Criminal Appeal No. 114 of 2019) [2022] TZCA 407 (11 July, 2022; TANZLII) and Sokoine Mtahali @ Chimongwa v. The Republic (Criminal Appeal No. 459 of 2018) [2022] TZCA 575 (23 September, 2022; TANZLII).

8 | P a g e As a result, in recognition of this legal position the Judiciary of United Republic of Tanzania had promulgated the Tanzania Sentencing Guidelines, 2023 to guide the exercise of sentencing in various offences including the Manslaughter offence. The guidelines act as a yardstick in exercising discretionary powers of the Court in sentencing. In the case of Moi Ikwabe Matiko @ Moi vs Republic (Criminal Appeal No. 491 of 2020) [2024] TZCA 625 (19 July 2024), at pages 27-28, the Court observed that: We wish to interpose here and remark that, sentencing is a balancing act between aggravating and mitigating factors, the needs of the community on one hand, and that of the convict on the other. It is for that matter the Judiciary of Tanzania has promulgated the Tanzania Sentencing Guidelines, 2023 (the Sentencing Guidelines) to provide guidance and consistence in sentencing offenders. In the instant case the learned trial Judge seemed to lean more on the aggravating factors and did not take into-account other factors as required by the then Tanzania Sentencing Manual for Judicial Officers which have since been replaced by the Sentencing Guidelines and which has elaborate procedures on how to impose sentence for each category of offence and factors to

9 | P a g e consider. Had the learned trial Judge considered the sentencing principles above, he would not have arrived to the conclusion he made. Once again judicial officers are urged to apply the Sentencing Guidelines in imposing sentence. This court is bound by the Tanzania Sentencing Guidelines 2023, thus considering the facts of the case at hand reveal that death resulted from continuance domestic violence that offender had consistently exercised towards the victim. Such domestic violence under the Tanzania Sentencing Guidelines, 2023 is categorised into the high-level manslaughter in the scale. In the case of Erick Samson Buberwa vs The Republic (Criminal Appeal No. 312 of 2022) [2024] TZCA 888 (13 September 2024) (TANZLII), at pages 15-16, the Court succinctly stated that: According to the Tanzania Sentencing Guidelines, 2023 referred to us by Mr. Mrema, the maximum sentence for the offence of manslaughter in terms of section 198 of the Penal Code is life imprisonment. The Guidelines provide for three categories which are to be considered when a sentence is to be imposed on a guilty person,

10 | P a g e that is; high, medium and low levels. In the high-level category, sentence ranges from ten years to life imprisonment , while the medium level ranges from four years to ten years and the low-level ranges from absolute or conditional discharge to four years. The trial court can impose a high level category sentence in a case where there is use of dangerous weapon or substance, there is serious multiple wounds, the offence is motivated by a gang, the offence was intended to obstruct or interfere with the course of justice, the death caused by domestic violence , death caused by sexual sadistic conducts, killing of vulnerable person(s) e.g. age, disability, gender , the killing of two or more persons, death based on race, tribe, ethnicity, religion, sexual orientation and disability of the victim and killing of public officials. The offender had demonstrated the high level of domestic violence towards the victim as the offender had beaten the victim leading to fracturing of the hand, and attempts to strangulate the victim prior to the incident date of the unlawful killing are clear signs of domestic violence.

11 | P a g e According to Tanzania Sentencing Guidelines, 2023 the high-level manslaughter attracts penalty of not less than ten years imprisonment to life imprisonment. The minimum sentence for high level manslaughter was subject of analysis in the case of Elly Millinga vs Republic (Criminal Appeal No.503 of 2021) [2023] TZCA 17521 (24 August 2023) (TANZLII), at pages 9-11, where the Court held that: It is also apparent that in accordance with the Manual the learned trial magistrate rightly placed the imposable sentence within the high-level category due to the use of a dangerous weapon in the commission of the offence. Nonetheless, he erroneously viewed the minimum imposable sentence under the high-level category for manslaughter as being fifteen years jail term as minimum while the bottom point is expressly stated to be ten years imprisonment… Based on the foregoing analysis, we are of the considered view that had the learned trial magistrate considered that the minimum imposable 10 sentence for manslaughter within the high-level category was ten years imprisonment (not fifteen years jail term) and that the appellant was not to blame for the ten years delay in pleading guilty to the offence of manslaughter, he would have imposed a lighter

12 | P a g e sentence. He could have possibly arrived at twenty years' imprisonment from which he would have deducted the ten years period of pre-conviction incarceration. Totality of the prevailing circumstances in the instant case calls for severe punishment against the offender as he had demonstrated high level of insensitiveness in dealing with the victim during her life time and on the date of incident. This Court considers that seventeen (17) years imprisonment would be a good starting point prior to consideration of the aggravating and mitigation factors in this case. However, there are both aggravating and mitigation factors advanced by learned State Attorney and learned advocate respectively calling for this court’s consideration. As the offender pleaded guilty to the offence of Manslaughter and had advance several other grounds including having dependants, this court has considered these factors. Imperatively, two and half years are deducted from the awardable sentence on account of pleadings guilty to the offence in combination to other aspects of dependants. This is on

13 | P a g e account of settled principle that the balancing of between the aggravating and mitigation factors, the mitigation plays a role in reduction of the sentence. The role of plea of guilty in sentencing was analysed in the case of Remmy Rashid Marandu vs Republic (Criminal Appeal No. 77 of 2023) [2026] TZCA 380 (31 March 2026) (TANZLII), the court stated that: Moreover, we note that, the effect of the accused's unequivocal plea of guilty to the charged offence cannot be overemphasized. It is a settled law that such a plea generally is taken as a sign of remorse and acceptance of the responsibility. It is no wonder very often than not, courts treat it as a mitigating factor, justifying lenience in sentencing. We stressed this stance also in Samwel Inzengo @ Malaja v. R (Criminal Appeal No. 347 of 2013) [2014] TZCA 245). This is also born out in the Tanzania Sentencing Guidelines 2023, at pages 21- 22. The second set of deduction is sentence on the balancing of aggravating and mitigation factors is on time spent in remand prison. The offender herein had spent considerable time of two and half years

14 | P a g e in remand prison. This court is satisfied that such take should be reduced from the term of sentence that is imposable on the offender. This is in line with a principle in the case of Kobina Kyei Danso vs Republic (Criminal Appeal No. 63 of 2024) [2026] TZCA 405 (13 April 2026) (TANZLII), at pages 31-32, the Court held that: It is a fact that, at the time the sentence was imposed, section 178(2)(c) of the CPA was in full force and effect. Given these undisputed facts and the clear mandatory language of the statute, "shall take into account the period the person spent in remand", the learned trial Judge was obliged to deduct or otherwise account for the appellant's pre-sentence remand period when determining the effective sentence to be served. Failure to do so constitutes an oversight in applying the statutory requirement that remand time be considered in computing the sentence. This omission constitutes a material irregularity in the sentencing process. While it may have been an inadvertent oversight {lapsus calami or error of law), the trial court ought to have been reminded of this relevant factor, particularly during the mitigation stage.

15 | P a g e At this juncture, those two and half years’ period of pre -sentence remand prison time are deducted from the sentence intended to be imposed. That would conclude consideration of all the mitigating factors where by a total of five years are deducted from the starting years of custodial sentence to be imposed on the offender. The remaining twelve (12) years appear in the circumstances of this case to be appropriate sentence having taken into regard the seriousness of the offence. It is settled view of this court that having considered of all relevant factors and in course of such consideration five (5) have been reduced, this would finally have exercised its powers judiciously as stated in the case of Daud Manyerere @ Makobela vs Republic (Criminal Appeal No. 463 of 2016) [2018] TZCA 803 (6 December 2018) (TANZLII), at page 12, the Court had noted that: Principally, in the administration of criminal justice, sentencing is a domain of the trial court which however, is subjected to the overriding principle that, it has to exercise such powers judicially.

16 | P a g e The convict, one Issa Khalfan Masholi @ Mashori is therefore sentenced to serve a twelve-years (12) imprisonment from today. That would serve the end of justice given the seriousness of the manslaughter in question. It is so ordered. DATED and DELIVERED at Dodoma this 5 th day of June 2026. E.E. LONGOPA JUDGE 05/06/2026.