19841124 TZCA Dar es Salaam3

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAH: ~Nyalali, c.J., Mustafa, J.A. and Kisanga, J.A. ) CRIMINAL APPEi1.L NO. 21 OF 1983 BETWEEN SELESTIN MALILA s/o MAGOMA KIKUSI • • • • • • • • 0 0 APPELLANT A N D THE REPUBLIC o ••• o ••••••••••••• o • RESPON,JENT (Appeal from the conviction of the High Court of Tanzania at Mwanza) (Korosso, q. dated the 22nd day of April, 1983 JUDGMENT OF THE COURT KI SAN GA, J .A. : The appellant wus convicted of murder and sentenced to death by the High Court sitting here in Mwanza. He is now appealing against both conviction and ,sentence. It was proved sufficiently that the appellant killed the deceased. Indeed the appellant admittei_the killing but raised the issue of self-defence. _The learned · tria 1 judge accepted the evidence of the eye-witness, one Mnubi (,P.W.1), who saw the appellant chasing the deceased and on catching up he stabbed the deceased to death using a knife. In his defence the appellun-t ~laimed that on the day of the incident the deceased c3lled at his (appellant's) house and, on finding him absent, uttered threats directing them to the appellant; the appellant's wife claimed to have heard such threatsc The appellant went on to say that later on that day he met the deceased on the way, and the deceased after renewing the threats, ~roceede~ to as~uult him. In the course of such assault the deceased slapped him av" hit him with a stone on the head causing him to bleedo 2 'I'he appellunt went on saying thut the deceased then pulled out a knife from his hip but the appe}lant· snutched it timely an"i st::-1bbed the dece:::1sed with it in self-defence because the rl.ecec1s,;d wanted to st:::.b him with ito The learned trial judge and his o.ssessors considered the defence G.nd rejected it. We think they were entitled to do so. There wus overwhelming evidence thut so soon after the st.:ibbing, the uppellant did not have any head injuryo On the other hand, there was ample evidence showing that,the appellant sustained heud injuries only some time later when in the course of his c1rrcst the relative5 of the deceased wounded him using stoneso Thus his assertion that the deceased wounded .him with u stone is ch.:arly fulseo Furthermore, the stab wound causing the death of the deceus'.:.!d was inflicted from behind, that is, under the left scapulur, which I was ·.consistent with the prosecution evidence of the appellant chasing the deceased und inconsistent with the defence story of c1 face to face confrontation with the deceasedo Mro Ro So Kahangwa, the leo.rned counsel for the appello.nt, referred us to a pussage in the judgment where the trial judga had observed that during the incident the deceased was passive and def8nsi vc throughout, o.nd that consistent with such conduct he had uttered to the appellant the remarks, "don't follow me" anj "beat me up"o Mro Kahnngwa submitted that this wr-i.s a mis- direction because on the evidence the only remark mude by the deceased to the appellant was "don't follow me" whereas the remark "beat me up" was made by the appellant to the deceasedo Mro Kahangwa made this submission in his contention that the appellw~t stabbed the deceased in self-defence or provocation. We agree thut the learned trial judge misdirected himself in saying that the remark "beat me up" was made by the deceasedo It is clear from tho evidence that thut remark was said to have been made by the appell,~;nt e•eooo/3 J , ,, 3 - II: to the deceased o . ' i But we are of the v1.ew,that such misd1.rect1.on . . does not affect the co.se at all., I i' For the r12asons briefly set out !I ' above, we are satisfied that considering f the.I prosecution eviJence . and the defence as a whole, there could be no robm for self-defence I I i or provoc.9. t 1 ~ [I · I Ir /Ot,., -! ' 1; h ,Q ,the /!rc~:5_.F. msta~~t~s, we find no merit in the appeal which Q:- , u. ,.,;;.1., .•,.\r.. f.'·'J(1·:•-,•'~ \1 .,,. is aczoordin.lfo!:y,rd:i:sm:issed\ \ ,\ 1. I I ~ ~~.~\~.)tF ~ ; r \ :'.. 1~--:f-~:(.,-.,; , 'D\TEn-{-a:~1:'lti@·ZA . < '------------- -4 "~ / " I thi"s '1/ 24th day r rvember, 1984., ! , l ;j !: F O 1iL l!NYALALI O CHl!EFJJUSTICE II I: A., 1,: SMUTAFA 11 JusrroE OF APPEAL [ Ro Hoii KISANGA JUSTICEiOF APPEAL ! ~i is a ,true qopy of the originalo 11 . '11,,•..., .. ~ J' :, • ,, · ,/Ii :! . ·-, ___L~~~;f ~-c-·--.· ( Bo P.·:[ MOSHI ) ?\1 ''I SENI9R iJEPUTY REGISTRAR .I