R. v. Halfani s/o Hamisi, Crim. Sass. 35-M-70; 12/3/70; Kimicha J.
The accused in this case Halfani s/o Hamisi has been charged with the manslaughter of one Hussein s/o Magare. The accused and the deceased lived in the same village. The deceased was married to one Ndundu d/o Masao who testified that hey were on 15th July, 1969, returning to their home from drinking pombe at one Selemani Masuka’s pombe club. After they were about 400 yards from the pombe club her husband, the deceased, told her that one Mkuya had said that she had committed adultery with one Kubida. She denied the allegation. The deceased did not believe her and he started beating her. He slapped her, kicked her, beat her with a stick and pulled her ears. She did not hit back and only asked him to go back to the pombe club and verify Mkuya’s allegations. The accused, Halfani Hamisi, came by and told them to stop fighting; telling them that they were drunk and those they would settle their dispute the following morning. After the quarrel had stopped the accused began fighting the deceased with this fist. He hit him on the form of his trunk. The deceased was hurt in the stomach by the accused’s assaults and his stomach got swollen. He stayed at home for two days after the fight but was sent to the hospital when his condition got worse. He died at the
Held: (1) “I find the accuse guilty of the manslaughter of Hussein s/o Magare and convict him accordingly.” (2) Sentence: “I take into consideration hat the accused is a first offender and that the deceased had an enlarged spleen. The other factor which has very much influenced my mind is that the accused and his family have agreed on my advice to pay consolatory compensation to the deceased’s family. The accused was convicted on 11/3/70 and after his conviction I informed the accused that if he voluntarily made an arrangement with the deceased’s family to pay (Kipangusa Machozi) i. e consolatory compensation I would very much consider this in passing sentence. It happened that both families were represented during the hearing of the case and they met to discuss the matter. Sentence was adjourned today in order to enable them to have ample time for consultations. The accused’s family offered 16 head of cattle without hesitation. The deceased’s family demanded 70 head of cattle. Then the parties referred the matter to the Court for further advice. I advised the parties that 16 head of cattle offered by the accused’s family was very reasonable under the circumstances in which the deceased met his death. The deceased’s family accepted the offer. A short written agreement was prepared in Kiswahili and the accused and three members of his family signed it promising to pay the cattle within three months period and three members of the deceased’s family signed it acknowledging their consent to the arrangement. The
parties were informed by the Court their agreement would be filed and form part of the record and that it would be reduced into an order of the Court and therefore would be binding on them as an order of the Court. They have understood and willingly consented to this arrangement ….. It is therefore ordered that the agreement be filed in this Court and form part of the record. It is also ordered that the agreement be reduced into an order of the Court and it will henceforth be binding on the parties as an order of this Court. I have suggested this arrangement to the parties and I have now accepted it as part of the proceedings on the following considerations: - (a) that the case is in itself a typical case of manslaughter with a lot of mitigating circumstances in the manner in which the offence was committed……. (b) I would not have accepted the arrangement if it had not in the end of their discussion been willingly accepted by both parties. (c) I would not have accepted the arrangement if I had the slightest suspicion that it would create trouble between the parties. (i) In this case the accused and his family gave me the impression that their offer of 16 head of cattle was completely within their means and that they would honour it without difficulty within the three months as promised. But I would have hesitated to accept it if it appeared that there would be difficulty in honouring it or if a very long period for payment were claimed. This would have led to litigation and enmity between the parties and perhaps to further killings. (ii) I would not have accepted the arrangement were many accused involved who had varying standards of wealth and where the circumstances of the case called for equal sentences. In such instances some of the accused could prove difficult in honouring the arrangement and thus defeat the whole purpose of the whole arrangement that is introducing a conciliatory feeling into the two families. (d) I would not have suggested or accepted the arrangement if the circumstances of the offence were such that a really deterrent sentence was called for. After taking all the above facts into consideration the accused is sentenced to six months imprisonment only.”
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