IMANI JACKSON

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB- REGISTRY OF MANYARA AT BABATI CRIMINAL SESSIONS CASE NO. 13415 OF 2024 REPUBLIC VERSUS IMANI JACKSON @ MBEDEGALO JACKSON JUDGMENT 21st August & 10th September, 2024 KAMUZORA, 3 Imani Jackson @ Mbedegalo Jackson, was aligned before this court charged with the offence of murder contrary to sections 196 and 197 of the Penal Code [Cap 16 R.E 2022]. It was alleged that on 16th day of November, 2023 at Mguli area in Kimana village, within Kiteto District in Manyara region, the accused person did murder one Mchiwa Karima Madondora. When the information was read over and explained to the accused person, he pleaded not guilty therefore, the matter proceeded to full trial. In an attempt to prove its case, the prosecution side paraded five witnesses; Page 1 of 28 Honest Michael, WP 6861 CPL Neema Yesse Machota, Vaileth Madondora, Steven Daudi Msonga and Emid Joseph Mnyaru. The prosecution side also tendered three exhibits; the report on post mortem examination (exhibit PEI), one pair of shoes (exhibit PE2) and certificate of seizure (exhibit PE3). On the other hand, the accused person was the sole witness for the defense side and three exhibits were admitted for the defence side; the statement of PW5 (exhibit DEI) accused's cautioned statement (exhibit DE2) and the accused's extra judicial statement (exhibit DE3). At the hearing of the matter, Ms. Rose Kayumbo and Ms. Mwanaidi Chuma, learned State Attorneys appeared for the republic while Mr. Tadei Lister, learned Advocate represented the accused person. Before embarking into determining the merit of the case, I find it necessary to give a brief summary of evidence from both sides. PW1, Honest Michael is a medical doctor who conducted post mortem examination of the deceased's body. He testified that on 17/11/2023, he examined the deceased's body and found it with multiple cut wounds inflicted by a sharp object. That, the deceased's body had cut wound on the left hand and armpit, deep cut wound of about 3-5 centimeters on his ribs and deep cut wound on the abdomen causing the intestine to protrude out Page 2 of 28 of the abdomen. To his opinion, the cause of death was excessive bleeding due to multiple cut wounds which professionally is referred to as cardiac arrest due to hypovolemic shock due to multiple cut wounds. That, he recorded his examination and signed the post mortem examination report that was admitted as exhibit PEI. On being cross examined by defence advocate, PW1 added that he used the scissors to assess the depth of the wounds. PW2, WP. 6861 CPL Neema Yese Machota is a police officer who was assigned the case file for investigation. She testified that at the time she was handled with the case file, witnesses' statements were already recorded and the file contained a sketch map of the scene, certificate of seizure and chain of custody form. That, the record also indicated that there was one pair of shoes commonly known as 'katambuga or mtanje' related to the case which was kept in exhibit room. In her investigation, PW2 discovered that the accused murdered the deceased for he confessed to have stabbed the deceased with a knife on 16/11/2023. That, in his statement, the accused claimed to have sexual affairs with his mother-in-law and on the material date of incident, he went to the deceased's hut where he agreed to meet her for sexual intercourse. Page 3 of 28 That, the accused confessed to the police and before the justice of peace to have killed the deceased. PW2 tendered the shoes, certificate of seizure and sketch map of the scene which were admitted as exhibits PE2, PE3 and PE4 respectively. Upon being cross examined by the defence counsel, PW2 added that she interrogated the deceased's wife on 17/11/2023 before the accused was arrested and in the course of such interrogation, the deceased's wife denied having sexual affair with the accused. That, the accused was later arrested and interrogated on 03/02/2024 and he claimed to have sexual affair with the deceased's wife (his mother-in-law). PW2 agreed that no witness saw the accused stabbing the deceased but she claimed that the accused's intention was based on the allegation that he threatened the deceased before the date of incident. That, after such threat, he executed his intention by stabbing the deceased with a knife. On re-examination she explained that she posed the question regarding sexual affairs because she wanted to know if apart from being in laws, the accused had any other relationship with the deceased's wife. That, the deceased's wife denied having sexual relationship with the accused. Page 4 of 28 PW3, Vaileth Madondora is the deceased's wife and mother-in-law to the accused person who is married to her daughter Aksa. She testified that in the night of 16/11/2023 at around 23.00hours, she was sleeping with her husband (the deceased). That, she was awakened by the deceased's voice complaining that he was dying. That, when she woke up, she saw the accused holding a knife stained with blood and she identified him through chargeable solar light which was in the room. That, when the accused saw her, he fled away and PW3 saw her husband (the deceased) covered with blood all over his body with cut wounds and the intestines protruded out. That, she screamed for help and several people responded including PW4 and PW5. That, they found the accused's shoes at the door step and the police seized them and sked her to sign a certificate of seizure. She identified the certificate of seizure and the shoes which were already admitted as exhibits in court. That, after police investigation they buried the deceased's body on 18/11/2023. PW3 denied the allegation that she had sexual affairs with the accused and the fact that there was a machete or knife in their hut. PW3 further testified that before the date of incident in early November 2023, the accused threatened the deceased. She explained that, the accused's wife who is PW3's daughter returned to their home and accused Page 5 of 28 followed her there. That, the accused blamed them for supporting his wife's behavior of deserting her family and ignoring her husband. That, the accused had a fight with his father-in-law (deceased) and he threatened the deceased by telling him that he will shed blood in his hut, "mzee we unafuga ubovu na mimi mpaka nihakikishe hapa damu i/e imwagike kibandani hapa. ” That, the accused uttered those words in the presence of other people including Emid Mnyaru (PW5). She added that the accused had been married to her daughter for almost seven years but they have been fighting most of the time. That, the accused and her daughter had three children but two of them died. On cross examination, PW3 claimed not to have witnessed the accused stabbing the deceased. She admitted that in her statement at the police station she mentioned August as the month when the accused threatened the deceased. She also repeated the threatening words that the accused said that he will shed blood in that hut, "hikiKibanda mpaka nije nimwage damu" PW4, Steven Daudi Msonga testified that sometimes in November, 2023 he received a complaint from the accused that his wife Aksa Madondora left their home and went to her father's home one Mchiwa Madondora (the deceased). That, as hamlet chairperson, on 12/11/2023 he summoned the Page 6 of 28 I accused, his wife Aksa and relatives from both sides including the deceased for a meeting in an attempt to reconcile them. That, they had a discussion but the accused's wife refused to go back home and they advised them to live separately for a month giving time for the parents to advise the wife to go back to her husband. That, the accused refused the advice and told them that he was not ready to wait for the month and he gave three days to the deceased to convince his daughter to return to him, "mimisikubalianina huo mwezi mnaosema Ha natoa siku tatu Mchiwa akae na mwanae amwambie arudi kwangu na asipofanya hivyo kitaeleweka" That, after he had said so, he left and the meeting ended. PW4 testified further that on 17/11/2024 at around l:00hrs he was at home sleeping when he received a phone call from one Jeremia Karima who informed him that the deceased was invaded and stabbed with a knife. PW4 notified the ward and village executive officers and the police and went to the deceased's hut where he found the deceased already dead with injuries on the left hand and abdomen and the intestines were out. That, at the crime scene, they were able to recover the accused's shoes and he identified them in court. PW4 described the accused as a violent person who cannot easily accept advice from other people. On being cross examined by the defence Page 7 of 28 advocate, PW4 added that he knows the accused since he was born and that there were no minutes for the meeting he convened. PW5, Emid Joseph Mnyaru testified that on 16/11/2023 while sleeping, he heard the deceased's wife screaming for help. He went to the deceased's hut and found him lying on the mat and his body was full of blood. That, the deceased had three wounds on the left arm, ribs and abdomen and the intestine was out. He testified further that he knows the accused as he is married to the deceased's daughter. That, sometimes in November 2023, he saw the accused at the deceased's farm beating his wife. That, when the deceased interfered, the accused did beat him and threatened the deceased that he will shed blood in his hut, "hikikibanda mpaka damu ije imwagike." Upon being cross examined, PW5 agreed to have recorded and signed the statement and the fact that the statement shows that the fight and threat took place in September and not November. He however insisted that November was more correct and not September. His statement was admitted as defence exhibit DEI. After the testimony of PW5, the prosecution case was closed. Upon being satisfied that a prima facie case was established against the accused person, this court called upon the accused to present his defence. Page 8 of 28 Being led by his advocate Mr. Tadei Lister, the accused introduced himself as Imani Jackson Chilungula and testified as DW1 and defended himself on oath. He testified that he is married to the deceased's daughter one Aksa Madondola since 2017. That, in 2020, PW3 who is his mother-in- law and the deceased's wife, approached the accused and asked him to have sexual affair with her but the accused refused the proposal. That, his refusal changed his life as he witnessed his two children dying mysterious deaths. That, after the death of his second child, his mother-in-law (PW3) phoned and told him that he was going through that situation because of his refusal to have sex with her. That, the accused agreed to meet and have sex with his mother-in-law to solve a mystery. DW1 further testified that on the material date of incident, he was phoned by the PW3 to meet her in their hut. That, when he reached there PW3 informed him that her husband (the deceased) was too drunk thus, she pulled the accused inside the hut and it was dark. That, when he got inside the deceased's hut PW3 spoke in loud voice and the deceased woke up and did light a torch. That, he asked the accused as to what he was doing there and before he could respond, the deceased grabbed the machete which was near him and tried to cut the accused but he missed as accused moved Page 9 of 28 around the poles holding the hut. That, on the second attempt, the deceased managed to cut the accused on his leg. That, the accused grabbed a knife from the water pot and used it to stab the deceased and did run away. That, he went to Tanga where he stayed for a week and later went to Gairo where he stayed for two months. That, on 01/02/2024 the accused decided to return to his village at Songambele believing that if he injured his father-in- law, they could settle the matter with him so that he could continue taking care of his family. That, on arrival, he was informed by his young brother that his father-in-law died thus, he was arrested and sent to the police station. That, at the police station he narrated the story of what happened and was also sent before the justice of peace where he narrated the same story. His cautioned statement was admitted as exhibit DE2 while the extra judicial statement was admitted as exhibit DE3. DW1 denied having a fight or having threatened the deceased before the date of incident. He insisted that when he went to the deceased's hut, he had no intention of killing the deceased for he went there to fulfil the request from his mother-in-law to have sex with her. He insisted that his mother-in-law (PW3) witnessed the incident when the accused stabbed the deceased as she was present at the scene. Page 10 of 28 On cross examination by Ms. Kayumbo, DW1 testified that he never reported anywhere the threats from his mother-in-law. He added that, he knew that his mother-in-law was the reason for his children's deaths although he did not state so when he was recording the statements. That, on the material date of incident, he went in the deceased's hut to have sex with his mother-in-law and he knew that his father-in-law was at home. He also admitted to have destroyed the mobile sim card and destroyed communication with his mother-in-law. He admitted to have stabbed the deceased but did not know how many times. After closing the defence case, parties had a chance to make final submissions which will be considered in course of determining issues in this case. Having gone through the prosecution and defence evidence, it is the duty of this court to assess whether the case against the accused person has been proved beyond reasonable doubt, a set standard of proof set in all criminal cases. The accused in this case is charged with the offence of murder contrary to section 196 and punishable under section 197. Under section 196 read; "Any person who, with malice aforethought, causes the death o f another person by an unlawful act or omission is guilty o f murder. " Page 11 of 28 From the above provision the Court of Appeal in the case of Laurent Kisingo v Republic Criminal Appeal No. 123 of 2013, Court of Appeal of Tanzania at Arusha (unreported), expounded three essential elements in proving the offence of murder. It stated that; "It is now settled law that for the offence o f murder to be proved; three ingredients have to be established. One, that the person is dead. Two, it is the accused who killed the deceased. Three, the killing was done with malice aforethought. "[Emphasis added]. The above holding if applied in the circumstance of this case raises three issues: - 1. Whether Mchiwa Karima Madondora is dead 2. Whether it is the accused who killed Mchiwa Karima Madondora 3. Whether the killing was done with malice aforethought Starting with the first issue, I have gone through the evidence on record and there is no dispute that the prosecution managed to establish that Mchiwa Karima Madondora is dead. On record there is evidence of PW1, the medical doctor who performed the post mortem on the deceased's body. PW1 saw the body, examined it and formed expert opinion that the cause of the deceased's death was excessive bleeding due to multiple cut wounds inflicted by a sharp object. The evidence of the deceased's wife (PW3), PW4 Page 12 of 28 and PW5 who went at the scene of crime shows clearly that they both knew the deceased and they witnessed his dead body with multiple cut wounds and protruded intestines. The accused also admitted that one Mchiwa Karima Madondora died for he was so informed by his young brother upon his return from the hiding. In that regard, the first issue is answered in affirmative that Mchiwa Karima Madondora is dead. On the second issue as to whether the accused is the one who killed the deceased, the evidence is very clear. PW3 testified that he saw the deceased in their hut holding a knife with blood before she discovered her husband lying beside her, lifeless. Her evidence was supported by PW4 and PW5 who visited the scene and were informed by PW3 that the accused was responsible for killing the deceased. In his defence, the accused also admitted to have stabbed the deceased. He tendered his cautioned statement and extra judicial statement all showing his admission to stabbing the deceased with a knife. The report on postmortem examination shows that the deceased's death was caused by several cut wounds including a deep wound on the abdomen that caused protruding intestine. The cut wounds inflicted resulted to excessive bleeding and ultimate death of the deceased. Thus, as also submitted by both counsel, the evidence is clear Page 13 of 28 that the accused killed the deceased therefore, the second issue is also in affirmative. As to the 3rd issue on whether the accused had malice aforethought, this is the area of controverse. While the position of prosecution side is that the accused orchestrated and executed the deceased's murder, defence side pleaded self defence and maintained that the killing was not deliberate hence, no malice aforethought. In his closing submission for the defence side, the learned defence advocate submitted that there is no proof that the accused killed the deceased with malice aforethought. He argued that there was no proof of threat by the accused to the deceased. He pointed out that the evidence of PW3, PW4 and PW5 are contradictory for it referred different incident and different dates thus, the prosecution failed to prove whether the threat was on early November 2023 or September and whether PW3 and PW5 heard and saw the accused uttering threats to the deceased. That, the evidence of PW4 regarding the threat is not supported by any other evidence and there is nothing on record to show that the accused formed an intention to kill the deceased before he went to the scene. He was of the view that, in establishing what made the accused to be at the scene of crime, the court Page 14 of 28 has to take into account the accused's defence and his statements during interrogations (exhibits DE2 and DE3). For him, the accused's admission only supports the offence of manslaughter and not otherwise as no malice was established. That, the prosecution side never called a witness who saw the accused stabbing the deceased and the accused's defence shows that he was acting in self defence against the deceased's attack. That, the accused explained the reason he fled after the incident and the purpose for his return for he wanted to settle the matter between him and the deceased only to find that, he died out of injury sustained on the date of incident. The defence counsel insisted that the accused's evidence was direct for he recounted the same story at all times. That, the accused's story could be linked with PW3's evidence whom the accused claimed to have proposed for sexual affairs. That, PW3 was interrogated before the accused was arrested and denied to have sexual affairs with the accused and upon his arrest, the accused came up with a defence that PW3 proposed to him and the accused went to the deceased's house for the purpose of having sex with PW3. To him, such circumstance does not in any way establish malice aforethought on the part of the accused person. Page 15 of 28 In her closing submission Ms. Kayumbo, the learned State Attorney submitted on the factors to be considered in determining the existence of malice aforethought. She argued that the weapon used, force used, parts of the body injured, number and kind of injuries inflicted, words uttered by the accused before and after committing the offence and the accused's behavior before or after committing the offence can prove that the killing was with malice aforethought. She referred the case of Awadh Gaitani @ Mboma Vs. Republic, [2020] TLR 140. Applying the above factors to the case at hand, the learned State Attorney submitted that, the accused used a knife which is a dangerous weapon and he inflicted multiple cut wounds on the dangerous parts of deceased's body. That, the force used to stab the deceased was too excessive because he stabbed the deceased on the abdomen causing the intestine to bulge out thus, it was not a simple blow. That, at different times, the accused threatened to shed blood in the deceased's hut irrespective of the fact that the deceased had done nothing against the accused. That, the words uttered by the accused before committing the offence show that he intended to cause death and that was so proved by PW3, PW4 and PW5. Page 16 of 28 The learned State Attorney further submitted that, after he had committed the offence, the accused threw away the knife which he used to stab the deceased and the mobile phone sim card for he intended to conceal the offence. That, he fled away instead of surrendering to the police and was arrested few months later. She argued that the accused's evidence is a lie and full of contradictions because he told the police that he stabbed the deceased after the deceased tried to pick the machete meaning that the deceased was not holding the machete and still, the accused decided to stab him with a knife. That, before the justice of peace, the accused said that he stabbed the deceased because he was holding the machete and wanted to cut him and in his evidence before this court, the accused testified that he stabbed the deceased after the deceased had attacked him with a machete. She was of the view that, self defence cannot stand in the circumstance of this case. She maintained that the accused's defence was just a lie and lies can be used to support the prosecution evidence. Reference was made to the case of Sostenes Mnyanzagiro vs Republic Criminal Appeal No. 276 of 2014 Court of Appeal of Tanzania at Tabora (unreported). Page 17 of 28 The learned State Attorney further submitted that all the prosecution witnesses were trustworthy and reliable and there was no material contradiction that goes to the root of the case. She was of the view that, the inconsistence that the threat took place in September instead of November does not go to the root of the case. She urged this court to find that the prosecution side proved its case beyond reasonable doubt and find the accused guilty of murder. I have thoughtfully considered each piece of evidence from both sides and parties' submissions. From the record, two people were at the scene; the deceased's wife (PW3) and the accused. They both have different story of what transpired at the scene and this is a very challenging part. While the evidence from the deceased's wife suggest that the deceased was murdered in cold blood for, he was attacked while sleeping, the accused's evidence suggest that there was a fight between the accused and the deceased and the accused acted in self defence. The prosecution side argued that the accused planned to kill the deceased and the purpose of going to the deceased's hut was to execute his plan. Their line of argument is based on the accused's conducts before, during and after the incident. I will discuss Page 18 of 28 the issue of malice aforethought based on the prosecution line of argument; the accused conducts before, during and after the incident. On the accused's conducts before the incident, three prosecution witnesses testified on the accused's threat to the deceased before the date of incident. PW3 claimed that the accused person promised to shed blood in the deceased's hut referring the following words; "mzee we unafuga ubovu na mimi mpaka nihakikishe hapa damu ije imwagike kibandani hapa "but on cross examination she mentioned the threatening words as; "hiki Kibanda mpaka nije nimwage damu" As per the prosecution evidence that statement was allegedly uttered in the presence of PW5. In his part, PW5 narrated that he heard the accused threatening the deceased that he will shed blood in his hut in the following words; "hiki kibanda mpaka damu ije imwagike. " Although the above quoted words suggest threats, I have discovered the inconsistence in the evidence of the two witnesses who claimed to be present at the time the accused allegedly threatened the deceased. First, the statements differ as pointed above, and bad enough, PW3 had two different statements for the same fact. Second, while they both claimed in their evidence that the accused threatened the deceased in early November, they accounted differently in their statements at the police station. PW3 admitted Page 19 of 28 I during cross examination that she told the police that the threat was in August while PW5's statement (exhibit DEI) shows that PW5 informed the police that the threat was in September. Although the learned State Attorney urged this court to consider such contradiction as minor, this court does not buy her idea for it considers such contraction as not minor and goes to the root of the case. The evidence on threat is aimed at establishing guilty mind of the accused person which is a point of controverse in this case. Thus, there is a need for a clear, direct and consistent evidence supporting threat and the time it was made because that is what links the accused's intention with the offence committed. In my view, there was glaring inconsistence and contradiction in the statement uttered as well as the time the threat took place thus, raising doubt which basically has to be resolved in favour of the accused person. See, the case of Shaban Mpunzu # Elisha Mpunzu Appellant Vs the Republic, Criminal Appeal No. 12 of 2002, [2004] TZCA 3 TanzLii, where the prosecution case left room for doubts and the Court of Appeal resolved the doubts in favour of the appellant. Again, and according to prosecution evidence, there was repeated threat because the accused also threatened the deceased when he was Page 20 of 28 I I I summoned for the meeting convened by PW4 intending to reconcile the accused and his wife Aksa. PW4 claimed that during reconciliation they advised the accused to separate with his wife for a month to think over their relationship. That, the accused refused telling them that he did not agree with that advice and gave the deceased three days to make his daughter return to him before anything happens, "mimi sikuba/iani na huo mwezi mnaosema Ha natoa siku tatu mchiwa akae na mwanae amwambie arudi kwangu na asipofanya hivyo kitaeieweka. " To me, the above statement suggests something unpredictable and not direct threat. PW4 claimed that other people were present when the accused uttered those words, but apart from PW4 no other witness came to support such fact and if the above words was considered a threat to murder by other people who were present. It must be noted that PW4 considered those words as threat to murder by referring the accused's behavior as a violent person who doesn't accept any advice. Thus, he may be judgmental to the accused based on what he referred as bad character of the accused. It must be noted that bad character in criminal cases is irrelevant unless character itself is a fact in issue, see section 56 of the Evidence Act, [Cap 6 R.E 2022]. Even if bad character could be considered, no evidence was Page 21 of 28 brought to court to justify the accused's bad behavior or act of violence which could be related to the killing of the deceased. Thus, the evidence by PW4 is not convincing to conclude that the accused murdered his father-in-law merely because he did not convince his daughter to go back to him. While considering the prosecution submission on conducts of the accused before the incident, I could not turn blind on the accused's defence and specifically, the accused's story about sexual affairs with his mother-in- law. The prosecution side contended that the accused's story is a lie, but that story raised a reasonable defence which the prosecution side is bound to encounter and prove its case beyond reasonable doubt. The accused's tale contained the unswerving story from the time he was arrested and interrogated by the police, his statement before the justice of peace and defence before this court. I am thoughtful of the accused's defence that his mother-in-law (PW3) who was the deceased's wife had grudges against him because of sexual demands she made to the accused person. He claimed to have gone to the deceased's hut on the fateful night purposely to have sex with PW3 (the deceased's wife) to solve what he considered mystery causing his children's deaths. He explained in this court and before the justice of peace that he was intimidated by his mother-in-law who threatened him and Page 22 of 28 upon his children's death, he was determined to meet her demands to avoid more misfortune to his family. The accused's story although considered a lie by the prosecution side, cannot be flippantly disregarded. I say so because, PW2 admitted in her evidence that she interrogated PW3 even before the accused was arrested. In her statement before the police, PW3 was asked about her relationship with the accused and she categorically denied having sexual relationship with the accused. Few months later, the accused was arrested and not knowing what PW3 had recorded in her statement, he came up with a defence that he was intimidated by PW3 who wanted sexual relation with him. This indeed is a convincing story that there was loath story behind the whole incident. This makes this court to consider the accused to have raised a reasonable defence that he went to the deceased's hut to have sex with PW3. In my view, the prosecution side was unable to prove the conducts of the accused person prior the incident which could be referred as forming malice to commit murder. On the accused's conducts during the incident, the prosecution side presented PW3 to prove that the accused murdered the deceased in cold blood as he stabbed him while he was sleeping. On the defence side, accused Page 23 of 28 claimed that he was attacked by the deceased thus, he was defending himself. I agree with the prosecution side that the accused story lacked consistence on whether he was attacked by the deceased or not but such weakness is not a determinant factor that the accused is guilty. In Criminal Appeal No. 83 of 2021, Anthony Kinanila and Enock Anthony Vs the Republic, The Court of Appeal held; "It is common ground among the legal fraternity and we think we need not cite any authority to support the legalposition that, in any criminal trial, the accused person must not be convicted because he has put forward a weak defence but rather the evidence led by the prosecution incriminates him to the extent that there is no other hypothesis than the fact that the accused person committed the offence with which he stands charged. That in briefis what is called proofbeyond reasonable doubt which is the responsibility cast on the prosecution side." Based on the above decision, it remains the prosecution duty to prove its case beyond reasonable doubt. The accused is only inclined to raise a reasonable defence which in this case could be found. Without doubt, the accused's story suggests that he knew that he was illegally inside the deceased's hut and ready to commit abominable act and was aware of the deceased's presence in that hut. In any way, he knew that he could face difficult situation and put up a fight to save his life. He may have acted in Page 24 of 28 excessively in considering the number of blows inflicted to the deceased, but that does not escalate the situation to the intended murder or justify accused's evil motive to murder the deceased. Although PW3 claimed that there was neither a knife nor a machete in their hut, the prosecution evidence reveals that the hut was used as farm house and it had only one room with a sleeping space and cooking utensils. This court considers defence line of argument as more convincing that the possibility of having a knife as cooking utensil and even a machete in a farm house was too high. This supports the accused's defence that he found knife in the hut and he used it after he saw the deceased with a machete. Although the accused was unable to establish if he was real attacked by the deceased, but in considering their acrimonious relationship, he reasonably expected the deceased to react. Thus, the accused's defence that he acted in self defence sounds reasonable. It therefore remains the prosecution duty to prove beyond reasonable doubt that the accused intended to murder the deceased. On the accused's conduct after the incident, the prosecution side contended that the accused intended to murder the deceased and that is why after he had committed the offence, he threw out the knife and sim card to destroy evidence and fled away. I do not agree with the prosecution contention which suggests that the accused flew because he intended to commit murder. It is not always that a person who fly away after killing another do so merely because he intended to murder that person. Sometimes, people fly out of fear of reaction by family members, fear of being attacked or arrested even where the killing was without malice aforethought. I do not see how the accused's disappearance in the case at hand is connected to his intention to murder the deceased. The accused may have fled out of fear for there is evidence showing that he returned few months later to the same village. He admitted to have fled away but insisted that he never knew if the deceased died. That, he returned back intending to reconcile the matter with the deceased only to find that he died. On the argument that the accused destroyed evidence by disposing the knife and sim card, I do not see how that proves malice aforethought. It was not expected for the accused who had fled after the incident to have kept the knife with blood. The same fear that made him to flee would have made him to throw the knife away. He also explained the reason he destroyed the sim card as he claimed that it contained evidence on his unweaving communication with his mother-in-law which he never wanted to be discovered. In my view, the accused's conduct after the incident does not Page 26 of 28 in the circumstance of this case establish that the accused killed the deceased with malice aforethought. In concluding, this court is satisfied that there was no evidence from the prosecution side on either the accused's conduct before, during and after the incident proving that the accused killed the deceased with malice aforethought. I therefore conclude the third issue in negative that the prosecution evidence was unable to establish malice aforethought against the accused person. Having concluded that the prosecution evidence did not establish malice aforethought, the question that follows is what is the accused's liability. Basically, failure of the prosecution side to establish malice does not exonerate the accused person who openly admitted to have stabbed the deceased in course of a fight. The Court of Appeal in Mathayo Mwalimu and Masai Lengwa (supra) made it clear on what should be considered where there is evidence of a fight resulting to death. It held; "The law has always been that where there Is evidence o f a fight it is not safe to infer malice aforethought In this regard, it will always be safe to ground a conviction o f manslaughter instead o f murder. For this reason, we think that the High Court ought to have convicted the appellants o f manslaughter. " Page 27 of 28 In the matter at hand, the accused admitted to have stabbed the deceased in course of a fight with the deceased and the prosecution evidence did not reasonably establish otherwise. With such evidence, it is not safe to ground a conviction of murder. However, there is undisputed evidence that Mchiwa Karima Madondora died unnatural death after being stabbed with a knife by the accused person. The doctor's report on postmortem examination corroborates that evidence for it shows that the cause of death was cardiac arrest due to hypovolemic shock due to multiple cut wounds. Although there is no water tight evidence on the accused's guilty mind in killing the deceased, this court is satisfied that the prosecution evidence proved a lesser offence of manslaughter against the accused person. I therefore find the accused Imani Jackson @ Mbedegalo Jackson guilty of the offence of manslaughter contrary to sections 195 and 198 of the Penal Code [Cap 16 R.E 2022] and I proceed to convict him forthwith. DATED at BABATI this 10th day of September, 2024. D. C ZORA JUDGE Page 28 of 28