19840809 TZCA Arusha

UI l_ IN THE COURT OF APPEAL OF TANZANIA AT ARU1-A (CORAM: Mustfa, J.o?o.MaaPie9 J:Ao. and Kis2nga,A 0 ) CRIMINAL APPEAL NO0 41 OF 1984 B E T W E E N GERALDKWAYIO 00000000000000000 0APPELLI\NT A N D THE REPUBLIC 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 RESPONDENT (Appeal from the conviction of the High Court of Tanzania at MoShi) (Mwakibete, J. dted the 7th day of September, .1983 JUDGMENT OF THE COURT MUS TAFA,J0A0: The appellant and another pdrson were chargedwith tnurder0 The other parson was acquitted, but the appellant was convicted as charged and he has appealed against conviction to this Court0 It is not in dispute that the appellant had cut the deceased to death with an axes The only point in dispute is under what circumstances did the killing take place0 The appellant was employed as a casual labourer by the deceased on his farm0 on the day in question the appellant was handed certain implements to work on the shamba0 According to P.0W0 1, the wife of the deceased, when the deceased did not return to the house after instructing the appellant and his co-worker on what was to be done, she went to the shamba and there she saw the deceased lying on the ground and the appellant standing 00 0 .12 - -2- nearby and searching the eceased's pocket. The appellant's co-worker,who was charged with the appellant, inan urisworn statement in court, stated that there was some dispute over wages between the appellant and the deceased and as the deceased I - had turned to go home theappellnt followed the deceas'ed. Later he followed and fourih the deceased ly.ng: on the ground 7- with the appellant standing nearby0. He. saw the appellant striking the deceased with an axe and saw the appellaht removing money from the deceased pocket The appellant g?lve some of that money to this co-worker0 In his extra-judiciaL- statement which was.admi'.tted in court without objection the appellant alleged, inter alia, that the deceased, in the course of an argument, threatened to strike him with an axe and thereupon he seized the axe from the deceased and struck him with it. However there was medical evidence that three cut wounds were inflicted on thet deceased and death was due to depressed fracture. of the skull and inter cranial haemorrhage. There were - ?some inconsistencies in the evidence of P.W.1; she clearly exaggerated and embroidered her evidence and the trial judge dealt with them 0 The trial judge nonetheless accepted her evidence that she saw the deceased on the ground and saw the appellant searching-the deceased's pocket. This part of the evidence is corroborated by the evidence of the co-accused who was acquitted. Even according to theextra-judicial statement,, the appellant., could not have been le:gally provoked by the oral threat made by the deceased to act in the way he had done... The; appellant is a young man, of about 20 years., whereas the deceased was an old man,. about,'75 years of age. - = 0 /3 c' # -3- The trial judge considered all the evidence and concluded that the appellant had killed the deceased with malice aforethoughtb In our view we think that the trial judge was justified in reaching that conclusion0 We do not think that the appellant acted Under provocation; it was a deliberatiT-.. Thaal has no reit, and is dismissed. /0/ r1 \ DhTED tLRUSHA thiS 9th day of August, 1984 A. MUSTAFA JUSTICE OF PPEAL L. M. MAKAME JUSTICE OF APPEAL R. H. KISANGA JUSTICE OF APPEAL \\ I certify that thi s is a true copy of the original0 / / ( L0 A. A0 KYANDO DEPUTY REGISTRR