Republic vs Mwandoselo Masunga (Criminal Session Case No. 15 of 1997) [1998] TZHC 2505 (13 August 1998)

-Date.: ,. ... , .. ' ··' IN THE HIGH COURT OF ".l:ANZANIA AT MBEYA . ORIGINAL JURISDICTION MBEYA RIDISTRY CRp,1INAL· -SESSION CASE NO. }5 OF 1997 .- THE REPUBLIC. VERSUS MWANDOSELO MASUNGA Coram: -Hon. B.P. Moshi, Judge For Rpubli: Mr. Nangela, learned State Attorney • . For Accused: Mr. Mkumbe, learned Advocate • . ;, ... Accused person: He is present under custody. Interpreter: Mr •. George - English into Kiswahili and vice-versa. Notice of trial on information for Murder contrary to·sect.:iarl. ~-.,,.,.tb.e- • .,.....Penal.Code was duly .sez:ved on the accused now before this cdm''t on 13.e..,91. ., Information is read over and; explained to the accused •in his Q~ language who pleads: .. .t, "Nwt true 11 Ente..red as a··plea of N.G. to the charge. Sgd: B.P. MOSHI ·JUOOE, Mr. Mk_umbe: My lord we are offering a plea to Manslaughter. Mr. Nangela: My lord the Republic accepts that plea. Accused: It was badlucko Court: A plea of guilty to Manslaughter, c/s 195 of the Penal Code is entered. : ... FACTS Sgd: B.P. MOSHI JUDGE. & ... Nahgela: . .. )~Y lord the accused <?-nd deceased were residents of Madundasi '" village,'Mpuiulu,division in Mb,eya Rural District. ', .. ••o•••••••/ 2

• 2 - The accused was married to Nkwimba d/o Luhayo who was a sister of the deceased~ 'On 18.2.95 Nkwba d/ Luhayo - his wife.:... refused to accompany him to their shamba. The accused went alone and returned at about 5.00 pm. He.did not find his wife at home. He was told she left home at about midday. The accused de?~:ded'. o ,o to· he house of her sister in law. It was rumoured . men that his wife used to commit adultery at the deceased's house with: procured for.her by tpe deceased. He arrived at th .. house of the deceased at _about 1000 pm. He heard voices inside the house he identified as those .of: dceased, his wife, and one Ramis Majuto. The accused picked up a stick outside the hciuse and waited. No '.,. . . . . . ohe _came out of the house. It became quiet inside and the accused then broke ·,-. • :.J ...

__ ;~ ,-./-- >rt.d..}or_a.nd ent.ed., .Hefound,his·wife in flagrate delicto in the act of :: :'.adultery with Hamis Majuto •.. He hit- Ramis on the head and ,neck with the stick ...... . who ,fell. - to. the gr.ound unconscious. The wife es.caped.. The deceased got out of her room with an axe with which she tried- to cuLt-he accused but failed. The accused then hit the deceased.on thtfhead with the stitko She fell to the ground. An alarm was raised •. It w.as answerei;l·):iy many people. Accused was held. On 20.2.95.,th_e decea-sed _was admitted at Chimala Mission Hospital where she died the -same day. ·· Cause of death as per this Post-mortem examination report (holding it) s _ _.llead, injury. I tend the __ report "in court (no objection, tendered, ·marked Ext P1). 'l;'he accused was ten charged. Court: The accused is called:upon to say whether or not t:tie facts are true ·. and he- admits· them. ·He says: riI heard· the facts ·and I ·.admit them all. They are correct. ' 9 FINDING On the facts as presented by the learned ·.state attorney, and upon the • .. • admission of their correctness by th-e ac?used, I acquit the accused of Murder; .. ~ __ .,.~ ... but find him guilty··.of tl'ie lesser o;ffence of Manslaugh:ei:, ~ :to section . . . . --. . . . 195 of the Penal C6de, ~d accordingly con:vict him.. •• •·• •••• / 3

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• 3 . - JUDGE. RJOCORD Mr• Nangela: My lrd, we have no known previous record. t1i tiga tion Mr. Mk My lord the accused is first offender. He has been in remand a for 3¼ yearso That is all., He ha~/wife with six children. He regrets for what he did. Allocutus ..EL. accused: I have nothing to addo Sentence There are matters in this case which crave for leniency. Some have been raised by Mr. Mkumbe in mitigation. The deceased and the wife of the accused were treacherous women. The accused found his wife in flagrante delicto in the act of adultery with a man procured by the deceased - the sister-in- law of the accused. What was worse, the deceased had tried to kill him with an axe. In all the circumstances of this case, I find that it is inexpedient AT MBEYAo 13 August 1998. For Defence: Mr. I•1kumbe. For Republic: Mr. Na.ngela. is, in consequence, hereby the Penal Code. B.P. MOSHI JUDGE.