19830413 TZHC Dar es Salaam

, -- ,.. HT TI-I8 HIGH COUUT OF TANZL.ITIA ./; 11 j).AR. ES SALAJ:J!I 7' ·3/ Ol"J:C-INAL JURISDICTION (Ier es Salaam Registry) CRIMINAL SESSIONS CASE NO. 14 OF 1981 t- THE REPUBLIC Yersus -~ ,· ,.,,, KASolANI KJ-'JIDTI __j

JUDGMEHT RUHUMBIKA - J • The accused in this case, YJt~1SIANI IWJUTI, fnces a charge of Murder. It is alleged by the Tiepublic that the accused wl th mnlice · · aforethought ldlled his wife .named AUW, THOlV'"UlS, on or about the 16th of August, 1978. at Mabawa village in the Region of I:forogoro. The Republic in order to_prove its case called a total of 10 wi tnessea . ·· .: . including a child of te~der years, whose evidence was taken as provided for under Sccti;n ..... 127(2) of.the Evidence Act, 1967 (1981 edition) vmen read together with sub Section (5) of the same Section vmich prov~:.des tha:t the expression "Child of tender yearsi 1 means a. child of or below the age of fo'lU'teen years. The court will refer to the ndence of this child in great deta:..1 :.otc:::·, The accused on his p8.rt denied the alleg,rcion of :murdering his··· . . ~- wife, and set U)) a de:L'cncG of p:rovocation. 1' The facts of tl1j.13 ca,::.:e are straight forwoYd. TherG is no dispUte tbat the wfe ' ot the accused, AlifHl. TI;.Oi':I!cS, is dead and -tba1n:· ;) ehe died a violent deo.th at the hands of the accused,. The father. .{ . of the deceased; TBOT.U S SEilJJRINI,?Vlo4, clea:r.:;_y ider.tified the body-;.} . of the deceased f her dauf;hter, as that of ArI!'. •J:HOVI 3 • The doctor who conducted the autopsy on the body of the iJ.Gce~se~ found ..that : . _,: ...'.· ·~. j. i't\·: _, the cause

ot death was because of e0Yer0 wou:LC°i.s t.r1e deceased .....~.,.. ~,;:u,. ., ..... :,.. ·, ·. , f. ' ' ' -~ ' •.:,.! ~; •~i:; ved which led to shock and profuse haemo1-rhace. 9:he doc tor noticed · · .. _,r:· ·} . two cut wounds. One was of about 10 cm. long and 4 cm deap and n,m" ., f through the upper part of the nose from the left eye ~Tl!. ._oe the right ' -~:-:.;_i-_.:J.\;.::.:_-. . cheek. This wound completely dau;.uged the left eye. 1•r1 wound . ,· . -i1 .. described had complcte:i.y fractured the max:i.llabone. The doctor ... ·i :~ ···. further no·ticed another cut wound on the left side of the neck I/-.}\. which was of 1 om. long and 5 cm. deep, this wound involved the ·y1_.,/:v·' )· oarotid artery and.thus caused profuse blcoding. opinion a sharp anc1 heavy weapon was applied with - ?. -- to inflict those ·wounc1c of th8 described ma. 6'11i tude. The Cc•.use o:f:' death is not disputed by the defence. The accused j_n his extrn. judicic.l st8tement which was admitted in evidence and maI'ke:1 I;JChibH P .. ::, accepted to have ~ d his deceased wife with an axe, and repeated the S8me explanation while giving evidence in the wtness box on oath. However, he tii1d,ll maintained provoce.-cion as the etuse of the lrillirie, just as he had nar::.~atecI to the jua tice of· the PeG.:c (P 11!, 10) a P:!'i.ms.ry Court Magistrate who recorded the e:;;:tra-judicial

St[:-,.tement. T.he Republic in its bid to have thiG court believe that the accused killed his wife with malic<; aforethought :relics mostly on the evidence of the daughter of theaccused called MAGD.A.LENA, a child of tender years. Before admitting the evidence this child. t 1~0 court ha4 o·!" . to direct itself to thE:: p:c·ov:Lsionsisectio11 127(2) of the Evid. Act, 1967, to find out whether the, child understood the nature-ff an oath or not 9 so that her evidence could be received on oa~ Through questioning by tho court, I-lif..GDAJ,El'JA clearly stated that she did not understand tho nature of an oath.··' The oJurt did net stop there, but went on to question the child (voire dire) to find out whether she vvcis possessed of sufficient intelligence to ;NS~ the reception of h·r evidence and whether she also understood the naturn of speaking the t:cuth. Through questions by the court and. replies to sl.1ch questions by the said chilci 5 the court was satisfied that the child vJB.s passed of sufi'icient in•colligence and lmew tho duty of speaking tho t:cuth. Therefore her evidence was taken though not on oa ti-~. The evidence of this child, who in 19"/3 vl.aen the incident took place waB ~\GCd about 8 years, was that on tbat fateful day (10/8.t,e) the accused father returned from a place where he had spent a nis}lt and come back home in the morning. Acco'.".'c:.~ng to ·chis

child, she was playing in the backya:td of thJ hom;e vrl th the other childx-e:1, but when the father came slle left the other children and went infront of the house ne::,r the doorj to from where• she ho.d the CQPDll8nd of full view o-:? '.ih~~-G v::·;s taki;:ig plac-o in the house. The child told the court tl:1.:.,t s1.1e ce.w the nccu:::cd, her father, go into the bed room and take an a:;:e a:1d all of a sudden struck the deceasea, JrJOthet' twice and the mo the; r :foll down. Tho child did not at tba t junc'l;\.we :) • • raise an ale:r-.:n out ran to the place of the grand father, THOMAS, ·'be -- ... ~ 3 - re1a3" th,i.s tragic masi:iage,. THOMAS wi tb.out wasting time dashed to El ~~,<JQ.1~ ~ r to r~port. The 1en cell leader is GEORGE Il'.IAKIDLEMOt ,aco. together w::i.th TEOI.I'JJ 1'-u::::hcd to the ple.ce of the accuse.cl only ta,. J:;i..nd that JJ!UU, •.r.::s alrQcdy in the ul tramundane. The re,jt ~--the ~ ~~n· Vfitna9s did not witness how the ' Jdlly;ig wae done. their evidenQe at most simply corroborates the fact that the said decea8ed had died a violent death from tm-oush ~ing exed by the accused. Section 127 (2) of the Evidence Let, 1967, in very clear terms ~ets out the p:i:ocedure to be followed when acting on the .p.denoe of a child of tendel" years lilre MAGHAJ..1T;Nf., PVl.3, Sub- section (2) of 8ection 127 of the l!:Videnca Act, 1967 sta.tee:- 11 (3) Notwi

tJ;:1.1~tanding any rule of l::,w or practice to the contrary wher.e evidence is received by virtue of Sul,>- Section (2) is eiven on behalf of tho lJrosecut:i.on and is not oor~oborated by any other material· evid~noe· in support of it implj,cating the accuood, the 004rt may, after wa:rning itoolf of the danger of doing so, act on that c.Yidence to conYict the'accused if it is fully satisfied that the child is telling nothilJg but the truth, 11 ·· . According to the consti:uotion of the above subsection, although the Pourt could act on the evidence of a child without corrobo.ratton by any other material evidence, the court e.n only Sf1,felz do oo after wamiJ.lg itself of the daJ:16er of acting on eueh evidence without OJ~rr9bra tion. Going back to the evidence of the child, M.AGD/1LEl'fA1 ehe ~id not even mention the oth<'1r children with v,hom she was playing in i,he baok-yard o:e the hour.m when aho left tl10m to go 1nfront of the house. One would hr:.ve illl3gined tba t when the aocuse'1. axed the decela\l;led in the house; d~finitely tlle woman ought to have sereamed in agoey of pain, This could have aJ.am.od the other children toa,e whs.~. up 1•r.i th tl'.eir mother in tho house, Again there is evidenpe to show tll.e:b NU1GDAIJ1)NA was not tho ~ldest ohilcl, There was .enothor ohilc.1 oldei· than MAGJJAiiEN'A, but tho court wae .noi t~ld WM, v had ho.ppenod to thif,3

child~ The court wao no ,ii even itJ.1;',o:t'JOO d of jhe a.ses •of the oth·- r children who were playing with MAGDALENA in tlle pock.ioy~rd of tho house, Our law as·proooribed in Se.c.tion 127(4) of the 1'videnoe Act, 1967 alJ,ows the court to act on the e\1"idenoe of a chilc! of tender years when cor;roborat).ng tho evidence ef OJ).oth,er, Oll;i,l,<l of tender years. - 4 - In disCI'e<Jiting th!~ 0vide1:..ce of this e;ye witness, the child· of tender ye,~rs, r:.r,GJ)tL~~H1l (PW,3), the dcfcmco relied on the eVi.. dance of PW. 7, f:J:1:D.'.L) J,H SHL.:,JJANI, who said under cross examinat1,on that on that f0teful d~y he had seen the 3ccuocd pass by near hi.a house, as they rr1°e v-cry close neighbours within the ranea of 70 paces. The nccur::ed wa.c co:ning from Iv1agole, another villag'?_, and then ente1°ed his hom,e where he remained for about an: hour, Here, let it be remembered that this wlti:.iecs PW,7 do£:fJ not mention of having seen any of the children of accused ploying ar-0und the compound that morning when the accused co..TJJ.e, The contention of the defence, as re:flacted in a sworn t~tatement of thear,oused is that when he came back home from .Magole viJ.lese he found no \lody at the house, He thus entered the house and started to prepare ponJ.d~e for himself as he <was unwel,J.. and hnd gone to Magole to visit a local medicinema.n named .AMANI, Jl.ctunlly,

according tq ~he accused, he returned to this local medicineman in the ewning. •when he felt unwell ag,:iin niter haVing visi•t;ed him .the :fir~t time in the morning thr:'b ay, Thern:t'ore the accused spent a night at All/LANI I S place, return.inc horue on the mornin13 of 16th August, 1978, tho fateful c1o.y. The accused in his 1:moj:n sto.tement before court stated that no one was at the house but aftr:ir a while the wife ca.me there and found him (the accused) on bed a.s ho felt unwell, ·'l'here'"p,on the deceased scornfully uttered these words in swnhili;- 11 • •••• rnce wnr.gu alido.i a:fadhali nilale nifo 1m alido.i ~ba (sina) maji ya kunikoshen, Xb.e defence contended tr...:it the v,ords uttered by the deceased to the accused, especially the words, 11 Maji ya kunikoshec, were highly and gravely provom\tive in the sense that the dacec.f.H,d he"ld the accused husband in disrespect and the words were denogatorily ut~red to the accused without regard even that he was sick. That meant the deceased wished that the soused died his way es Dhe Qared notlµ,ng ab.out h:i.m. In further discrediting the unsworn testimony of MAGD.ALE!TA PWif3f the qt3:t'~n,ce further confonded tha ·c who. t she narre.tr~d befQ.l'-e ~ourt sboul.d have been ex-,E_ciat fe.cts the ldlling, and even if i'j; -could be - _.L • ..- ..•.. accepted that she was at the do9r, which the defence stated was

highl.J' imprgba'b.le, she could not have heard the provocative words uttered by the ~c;ithor to the accused. T.hE; defence proye<l the court to. be :....- ~- catious with the evide:1ce of: this child as regards its ·probative value w:Lthout oth2r 1,u:tcrie,.l evidence to corroborc,te it. 0:f course 1 it is not in dispute that 2..f_.cc,:r· the i1:.cident NLGD.ALEN11 went to inform ho:r c;i~c.iK1father THOMAS, but according to the testimoey 0°" iii. 7, ABDALLAH SHAB./iNI, the daighter of the deceased PW • .3 (MAGDALENA) was seen by this witness peep into the house and then dash out crying to go to the plnce of her g1~2.nd fu.-~her THOMAS, after the cccu~ed had gone into th<1 bush with an axe past the place wher0 this vrl tness v:ias. Indicates that l'Vl, 7 saw the accused twice 0 First when h(; was returning from 1:hgolo back home, and the second time when he was ,:;aking to tho bush with his axe. This then contradicts the po soi bili ty of il[!,GDl.IJ!ll'TA to have been present during the time the accused Btri~cl-c the deceased with the axe in the ruanne:..~ expla::..ned. Indeed the com. t must co:nf'et:s that this is a difficult oase. 0 It a case th2.t rcflectb the benstly behaViour of the aceused husbandr The barb:. . r:Lc propensity and i!2££.ssant atarism. Clearly the oots of th1:? dccensed are grossly inhuman. But courts of law have to decide c::\:.·:es not by boing moved

by psychological influ- ences, emotions o:..:· )_)erso11t1l convictions~ ·,11ores or nonn,s, Cases have to be r1eci.(k(1 th:cough the judicial process· of proof through cvi(ence, and judicial reasonaing, nothing more, Positive law prescri·bes the dictatt.:·s to be followed, O"!' bettc:r still, legisla- tion to be obeyed by "1:ib~ t.::-c.tjecti:~, Yoc:1.tv.,, law requires that for l~w to be er.ri.'o:..~ced the:::'e inwt be pe:1al sunctionD 9 .:,nd those who flout the law sho,.11<:1 face the j?enc.:;.. s:::r.:,c-~ions~ .!te;o.in the jurisclprudence of punisbment makes it cL:.:a:r· that once the ·law is broken, the tr,~nquilJ.i ty of society at lar;:.e is di,sturbed. The same society then expects the offender to J•:.y the price by being subjected to the legal penal sanctions. B!t pumishment has to be propotionate to the of:;:ence~ a~1d if puni.,:_:J::u;1,.mt is not ,12ro_potioll§te to the of:fence unjusti:i:'iabJ.e. Murder. is a sc:cious ofience, and is a mala in se -offence, tha ·c is 2n offence b[~d in itself~ not ~ prehibita, i.e., bad 'because :Lt ~;_s :forbidfL1 by lt\w. The appropriate punishment for murder if p~coved io for the o.ccused to :face the gqllow].• '.ll1at is just that under our lc.w::;,, Being a serious oftenoe, that is why t;1.e l:•w :11rovidos defences lik" - :?elf defence, provocation insanity, intoxicati·:m etc. in order that the of:,:ence could be . reduc8C

to a lesser offence of manslaughter. • •••• /6 r - Q - The case bGfo:ce com··~ i.s one such a difficult case, The court finds itself at cror::;s-roads, .. Vfi thout exo.gp;ara.tion if this very case w_·.s :::1lcxtcd bdore the learned judges, it is not surprising th2 t two different verdicts could be entered. . One· could· be the t of m'l.U'der and perhaps the other could be of manslaughter. :Provoc£d;ion as u defence at law is provided for in Section 202 of the I'enaJ. Code, Which states: '.I.be term provica.tion mel:l.ns anc~ 1ncluc1~s • ••• • 11 , .-. • any wrongful 2.ct o:i:- insult of such a nature as to be likely when done to an ordinary person•••••••• to deprive him of the power of oelf control and to induce J;lim to commit an assault of the kind vmich the person charged comnd:t;ted upon the person by whom the act or im,'Ul t is cione or ofi'ered. 11 (only the relevant parts of the section are re- produced here). '.lhe s~tutory provisions on the law of provocation as seen supra are not very spe cif'ic. Therefore most of the provoc,:i tion ·issues as defences in homicideoa.ses are to be found in case-law. There are several decisions in respect of provocation as defences in murder cases. Some courts have in different circumstances either sus- tained p:rovocntioi.1 as a tanoble defence so as to reduce the offence of mm·der to manslaughter, and in some instances provocation

has been ruled out by courts. And in one of the decisions of the East African Court of Appeal, the court held that provocation in respect of a husband was a m£,ttcr of fact depending on the circumstances of the case, See the oar·o of • , •••• However, while the -com:·t ~o~s at grips with these propositions the court seeks to m.aI::e it cl0a.r tl-J.O.t at times courts find themselves in that i~ent. 1,roj.)lem of tr;y:inp; to v,eig.):J. the casL:f.or the pro~ seoution on the s1me balance as the co.se for the deZenoe. Clearly this is an improper legal appr~ch, It is 2, cardinal prip.9iPle at criminal law tl:m t the onus of proving the charge against the 31lCUsed beyond all reasonable douM is ..1lw2.ys on the prosecution in Criminal oases. Thie burden does not shift. Likewise, the law does not require the accused person to prove his innocence beyond all reaso~ able doubt, because the undorlying philosophy about the whole thing in common law· oountriea is that na mtm is deemed innocent until proved guilty, ;: This jurisp~ential approach.in Crilllinal trials becomes.very taxing on the minds of the trial judges •. Indeed a judge has a_duty - 7 - to make a decision, b xt he has to make a jur.:t (l}cision according 1 to his own conscience and upon the evidence as adduced before court. Otherv,lse 1 it wou+d be making a travesty of t1:.e judicial process. The oriminal principals require

that 211 2n nccused need do to be entitled to an c,cqui ttal is to raise a r0asonable doubt over the whole <Yidenco ng~inst him. Once that reasonable doubt is raised and su::::tnined by the court, then tho nccus,~d is entitled to an acqui tt~\1, becr1us<:: ti.1e prosecution will have. fz:i,iled to dis- charge their burden of proof. In this -0aae, it is true that the accused axed his wife in the ~o st inh1.UJlQn rnarmer with an axe, there by ld.lJ.ing her, The accused has set up provocation as defence. T.ho Ile public on the contrary he.a argued all out for the accused to be convicfod of murder and face the gnllowot~s it were, Now le~ Uf.3 go a little into the antecedents of the married life of the couple - tl-.10 accused and the deceased. There is ample evidence thE1t their m:::i.:r.:decl was a harmonious one, 1his testimony was mac1e by TI:I01L'.G, PW,4, the father - in law of the QCcused and· the other prosecution witness who were neighbours to the couple. The matrimon1al problem of the couple arose when in the month of January, 1978 the wcuoed a.me back home after having been out in the forest to cut wood for charcoal as a means of livelihood to the family; and founa to his utter disgust that his wife hnd conceived through some adul ter~ms aEsociations -;Ii.th a man named JANCJARY. As the pregnancy wo.s two mo~'1is old, the vrlfe hnd to confess to the doce::::i.sed, and not

only tlmt but in a <lerocatory manner told the e.ccuscd th,.. t she had to conr,:ui-c adultery i.v:i. th that para- mour of hers as the husband (accused) was poor, that is could not the ace-used provide for her needsc Here it will be remembered that the accused had gone to cut the wood together with his fa the~ in law, who t<:,sti:tied thr:.t the accuced made a trip back home in between to bring ·money to the family, ~!be couple were blessod with four children• .Apn t froi::1 t},n·c, the accused took up ~he matter in the roost amicable way, 1ie did not harm bis wife but mnde accusations to the tradi tioml elders. GEORGE MAKELEMO (PW,8) the ten-cell leader of the village reconciled the pnrtie~. In fact the evidence •...•Is. -8 is clec.r t::.:::it ·cL.0 C:,eceaGed confessed pint blanlc that she was ma.de pregnant by a man named J.ANU,1.RY during the absence of her husband. For that matrimonial offence the father of the decoo.sed PW,4 · ( THOMAS) paid sh;:;. 140/== compensation to the v,To:ri..ged husband - the accused. !is a g::,sture of good will the accused returned Shs. 100/== to Tl-IOIE3 9 guve Shs. 200/== to the elders as witnesses and gave the remaining Shs. 20/== to his wife, T'.aereafter lite was normal. But ir,. the view of tho court, the beb..·wiour of the deceased V'r.i.fe was contemptuous to her htwband, When arguing about whether provocation could be ~vailed to the

accused in this case, the learned counsel ior tho clGfenco cited the ,.case ··~of ...,.,_. LJJ.filKI KITEKA v._ ~- 1972) I-r.c.D, n.207. It is obvious that the facts of "that case are difierent from those of the case before this court. But the salient point to note in that decision (per 1':JJ;Jz.·:v1\S, J, ash e then was) is the hypothesis of ctunula tive provocation. The Court 11 held that: :i?rovocation for the purpooe of Section 201 and 202 of the J.'en,..,_l CoJe should always be considered in the light of antecedent ageTavating, circumstances over a_period, if such exist, so that a culminating last straw may be considered as provocative suf?icj_ently graye, which might not have-been so considered if hc.s not been the firs·c act of its kind. 11 This court finds th-:,, t the hypotl,o Bis put fo1.~wnrd in the mse cited is well placed, and indeed apart frou the fact that the :facts of the present case are different from thooe of the cit0q case, the question-of oomulative aggravating circv.r11str.mces wb._j.ch are antecedent in the marital life of the couple are clearly present in this case. Note that the husband ·.-;as grossly wronged :fo find his wife preg- nant by another man, and note the ·aerog[, tory nJ.anj_"'!er in which the deceased told the accused that s~e decided to have an adulte- rous afXair with JHJU/.P.Y because he the nccu£Jed was poor., Then the last of the

g:i:•of:isly provocative straw is when the deceaaed told the accused who was in bed a~d indisposed in Swahili (the words of which a.re already reproduced in extenoo in Gwo.hili in this j':ldgme:nt), but whose English equivalent could be:- 11 •••.Batter sleep and die and I will fetch water to vvash your body." These words uttered fo a wronged husband like the accused, who knew that his wife hnd no regard_for him whatsoever could certainly, in· the view of the court, and taking the accused persons walk of life, •••• /9. - 9 - render his loese his self control and in a heat··of ~ ~ l l t).ttook th~ deoeased. When su.unri.ing up to the gentlemen assessors, tlll of the three were unn.w,mous that the aecused wo.s guilty of murder. 'lbeir r&aSOll& ·were ·eteneotype. They snid the words alleged to have been \lttered were concocted as there vns no evidence to prove them, or even tho.t they were not provocative. With the greatest respect to the ilnpeccable wisdom of the three· gentlemen assessors, with g1~ent reluctance I beg to dj.ffer -with their opinions. T.he re~1so11s nre th.,:,,t the court would he wrong to weigh the oose for the defence on tho same balance with the faBG for the proseoution. The court hos e~rlier on gone to great detail to explain this. All the court hns to o.~k itself is whtt,!le5\ ~ ).s ,.rec.son.ably true tha.t the deogase~ .wJ../c , uttered those )Wrds, to,

1'I., aocused.. And if she uttered those words is i'G rec.sonably tnae that those words could have prnvoked him so g:;:·nvely so ns to loose hie self control nnd attack his wife o.s he did, But to reqtiire ~ accused person to prove his innocence th~~t would be to make a travest~ of our present judicial system. Onco a reasonable double is erected and is accepted oy the court, the criminal law principal requires that the accused should entitled to an acquittal. Will all fairness, in thisot~ the f ~ finds thnt the accused as raised o reo.sono.ble doubt over the whole evidence against him by setting up provocation as his deten,e SOQOr rding to the words which in his statei;1ent he ma.de before the Justt,e of the Peace end also before court on onth, To disregard th1J defence completely trot would be to made the trial c,o;esided. As was held in the asc cited in this judgment, the ,ourt aftet: having accepted that a rensonr..,ble doubt exists, itds imprudent than -t;o rule out the possibility o:f provocation on the part of the 8Q~"9 '.I.herefore the benefit of doubt is to be accorded to the a.cc,uted a.a 1a a principal at criminal law. 0,'he nccuoed ipso fo.cto is ent~1;l,ad to an ilcquittnl from the chc.rgc of murder o:t' which he is a4quit"tt"t Ii upon the av~ilable evidence the accused is found guilty ot a lJJBaer of:f.enoe of mc.nslail~ghter~c.ont~a.ry to Sec;,tion 195 of ·the.

l\eml Co"-e t~ which of.fence. he is accord;i.~y convicted, - 10 It is said thnt the bcr,stly c-!Ct of the 1IDcused ca:use the loss of life to an 'innocent baby who was :..ilnost to come to thie world as God 1 s precious gift to munkind. Sgd. (H. J • L, Ruhur.J.bika) MOilOGORO 12th April, 1983: 13/4/1983 Coram: R, J. L. Ruhumbiko., J • Mr, Shio for the 11epublic !~. r,.1shote for 1,ccuscd Accused: Present under custody. All three AssesBors. PreGcnt. Court: - The judgrn.ent is delivered in -the open Court this 18th day of' April, 1983 at Morogoro. a.a:. L. R:uhumbikn JUD@ 137471984 Mi·. Sh=!:.Q_: - Ny Lord, the accusecl. is a. first offender but he is barbaric •. But I pray trot a very stiff sentence should be given taken into account the seriousness of the offence was co1nr.d. tted, That is all~ my Lor<l, Ggd. R, ;J;, L, 1.uhumbika -·-- JUi)(".::'1 13/1:./1983, .ALLOCUTU'S: :Mr,e, Msho te : My Lord, the accused has ·oeen on reraand since 1978, This is n pe:dod o:t' six ye£'.rs, That period has told the accused how precious ht.1r.:an life is. The ·accused has also lea:mt hov1 to exorcise care when provoked. The deceased is very much to blllllle, She uttered very grave· and proirocD.tive v10rds. In African tradi.tion, There is nothing more provocative than "vishing another pcn·son d0ath. And this much so do lllD.rI'ieds. The deoeesed is the source of ell these incidents. She _

offered her .body knowing tbn t she was a married woman, and this is a. very un::Jecoming behaviour in traditional ••••••111. • - 11 - society·.. Not only: th2:t, I·t? Lord, when the accused was sick tbe deceased Ju'iJNJ; neve:c· cared her. Turning be.ck to the 2ccur:;ed it is noted that since 1976 when·. they were mer:ded the aocuseddid o.11 v:hn t a good husband could do. Even·when the decec.sed admitted ndult0ry, the accused played it cool. It will also be recoJ.led thn'i; n:fter the accused had injured his wife w.i.th the axe; he o:i:forcd himself to the authority without dii'ficul t. Lastly, tho r:1ccused h:11:i for children to look after, much as they could be tal:en ca:c-G by r<0lntives they need parentel care. .All in nll I pray tho. t this cou:ct be lenient in sentencing the accused. Then will be all, my Lord. Sgd. (n. J. L. Rub.umbilro) JSLt~G}~ 13/4/1983 .Accused: - I hove no thine; to so:y. Sgd. (R. J. L. l\.lhumbika)

JUDGE 13/4/1983 SENTENCE: In this case the ·accuoed Kli.S;?.lI!JIT Ki1NU 1rI killed his own wi.fe in o most inhuman nnd bo.rbc.ric iJJBnricr. He hncked the poor woman who was pregnant with a full tel"l:J. bo,by who wns almost to be delivex-a~ ns o reward of God to this world, .:mc1 go an addition to the genel:'ati<me It is true thnt after much and careful consideration of the GirCUJI1S-. tances the offence ,ras committed .:::..nd the ontecedents of the couple the accused and the deceased - the court accepted the plea of pro- voq_ation so as to reduce the offence from murder to manslaughter. under the provisions of Seotions 201 of thc·Peml Code when read together with Section 202 of the saae Code., Nevertheless, this is Q mo::;t brutal manslo.ughter case, and does not reflect any convincing grounJs upon which the court could clireot its mind regnrding pr.:.idng a leneient sentence to the o.ccused. Let it be· cleo.riy noted thnt ·the ~':1.ccused h.-::is just narrowly missed :facing the gcllows, if the court hnd not availed him (the accused) of t~is defence of provocntion in the ciNUll\Sta.noes the offence wo.s. «;Oijllilj. 'j:;ted, clefuu.,tely he ought. to hnve faced the gallows• ••••., • ,/12 • • r - 12 - The mitigntirig factors put forwo1--d by the defence have ~n -considel'Cd, but in the light -of the. evidence before court on how the ocused committed the offence, th:.lt is

cutti:cg without rool'Oy his own p~gn_"lnt wife with a.n a.,ce not only once but twice, tb.ia ~ fails to see hoY>' it could under such oi1'0Ulll&tance·s ~er~iso its leniency and met out o. lenient sentence, Indeed the court is o.11 out to support the coll for the Republic tlli',t the ~cused should be given a stiff sentence for his bnrb::i.ric o.ct when he killed his wife in the manner he did. Tb.ere is no court of law which lrikea pleasure in either condemning convicts to face the gallows or i.mpossi.ng seTeN sentences to ~onvicts, But tha jurisprudence of puniar.unent requires tlmt a P\-UliS]:lment toot is just should be the one va1ich is propotionute to the offence commi- tted. As earli:::r on rmue.rked· in, this judgment when some one offends the law the society expects hiL1 to pny a fact price for the offence he ha.s committed, ::>.s the tr~.UGUilli ty of the society is dis- turbed when offences ore corirr:ii tted. Criminal offences are not personal rac.tters; they involve the stnte, o.nd that is vm:, the Republic is the ono thnt prosecutes the offen<len. With due respect to whr,.t the c1efe:ace counsel has submitted, this court will have failed in its Judicial functions if it {!jive a light and negligible sentence to the :iccused, Slustice should not only be done but should a.lso be seen to be done, Aocueed KASSIANI KLNU'.CI shouLI 1·ogard himself luoky to have narrowly

escaped to foce the gallowo, but the conviet will not have any mercy whn t -soever in eentc11cing him far the. kind of mnnslaughter he committed on his pregl'lru\t wife, In these cirC\XIIlstnnces nnd with due- ragu:r:d tG oll the mi ti- gnting factors the sen·conce tmt would meet the ends of justice in this o~se is o.s follows:- The cccused person, lv;/J:.;IMJI E1.:N'U;U_., is OOJ.ttenced to impri• solJII].ent fore term of 25 years. Sgd. (H. J. :t,, Ruhunll>iko) . .. .

JUDGB W.IOROGORO 13th April, 1983. . ... Court: - ~-~ aoou1=:od is :i.i1fo1'11ied of lt:i.,<3 ;r~ta o.t appeal., '• ~ 13 - {;_:,gd. R, J, I,. nuhumbika)

JUDGE

MOROGORO 13th April 1 -1983. Court: This is the end of the crimiml sessions case this tiloo nt Morogoro. Sgd. (R. J. L, Ruhumbilm) Jff:)GD ;1.3th April, 1983. This is to certify that this is the true copy of the origi.~_l-