19850816 TZHC Mbeya

1 - - ' IN THE HIGH COURT OF TANZANIA AT MBYA " ORIGINAL J-URISDICTION (Mheya,Registry) CRIMINAL SESSIONS CASE N00 90 OF 1981 TEH REPNBLIC versus WIT0N TUKETE I'iIWAMBENE Charg M U R D E R c/s 196 of the Penal Code Cap.16 of 'the Laws, 10 JUDGMENT fjR0SO, J. The accused WISTON TUKETE NLNiBENE is alleged to have murdered one NYITIKE KATJNGO on 28th July, 1980 at Old Vwawa, Mbozi District 0 There is no doubt and the accused ad:oits that Nyitike Kaungo.diod on 28th July, 1980 as a result of a deep out wound inflicted on his neck by the accused, who used a bill-hook. The blow was made with so much force deceased was almost decapitated 0 The accused has said that he did not mean to 20 inflict such a deadly wound on tlio docoased and that he was prompted by a desire to prevent the deceased from forc'Thly seizing cattle, some of which belonged to him and some belonged to his brother Lazaro Mwambene, The defence counsel has therefore urged the court not to find the accused guilty of murder but the very most to convict him. for manslaughter as a result'of having used excessive force in protecting his property 0 The learned State Attorny for the Republic however contended that the' evidence adduced for the prosecution iediy proved the offence of iurder, what were the 30 circumstances that led to the death of the deceased? The deceased had married two girls from the family of the accused. It would appear that as a result of certain - - developments in the reIaonship between the deceased and one of his wives he felt entitled to a return to him of the dowry he had paid. We do not know Lf there was a divorce but the -deceased obtain a court Drde' to attach the property of Lazaro Mwambene who is a brother of the adcused. According to the evidence received during this .tral the court attachment Order mentioned that five cows, a bulli a go'and two hoes were to be attached and seized from Lazaro Mwambene. On 28/7/80 the deceased accompanied by a village Chairman one Langon Mwakiiindu - PW1, a village Secretary one Leornard 10 Pifwakitulele - PW4 and a militia man who did not testify went to Lazaro, The village C11.airman - PW1 read out the attachment Order to Lazaro. At that time the accused and two other brothers of Lazaro were present,. Lazaro said his property coLild not be attached because he was not indebted to the deceased 0 Upon the objection raised by Lazaro against seizure of his property the village chairman suggested that clarification of the court order was needed and that therefore •bhey should leave. The deceased com'lained Ltha it was not proper, that they should leave viitnout executing the court order as the cattle to be seized were 20 right there0 lie referred to cattle which were in an enclosure nearby at the home of Lazaro. As the chairman, the village Secretary and thLQ militia man rose to leave Lazaros home tho accused inflicted the fatal wound on the deceased who died on the spot0 The accused has said in his evidence in defence that in the cattle pen at the home of Lazaro there were four of his cattle which Lazaro was helping to graze together with 12 head of cattle of his (Lazaros) own, He said that doceased had said he would forcibly seize the cattle and that he had walked two steps in the direction 30 of the cattle encloaure when ho attack.od him believing he was then going to seize the tattle forcibly. .A witness told the court that the cattle pen was about 20 paces away. The village chairman and the village secretory said that when they started to leaVe the home of Lazaro decoased was beind them and that although the deceased was found to have dropped dovi two paces off the exit path after being c3saulted by the accused they could not know if in fact the ieceased had been going in the direction of the cattle pen. - 2- There was no evidence to counter the accuseds claim that he had his own cattle among the cattle in Lazaro's cattle pen although it was clear the accused was not living at the home of Lazaro. Was he then acting in defence of his property against unlawful seizure Idicni 1iick the deceased with the bill—hook? In the first place since the deceased had a court attachment order which he had handed to the village chairman for execution 9 the seizure of cattle at the home of Lazaro ) if it had been e'fected would have been a lawful act, Secondly, ) if the deceased was really intent a effecting the seizure 10 himself and in the result miatakeniy seized cattle which belonged to the accused who was not mentioned in the court order the accused would have been entitled to object to the seizure and even take measures against forcible seizure 0 But considering that the people who had come with the deceased to execute the court order had already shown reluctance to seize the cattle as a result of the objection by Lazaro and also considering that Lazaro had three brothers (including the accused) around is it plausible that the deceased who have attempted forcible seizure of six head of cattle single handed? 20 I respectively sIare the view given by the two assessors who sat with me in this case that it is not true that deceased was inteilding to seize the cattle in the enclusure and therefore the accused did not attack him in the course of preventing the deceased from forcible seizure of the cattle. Secondly, even assuming that the deceased was foolhardy enough to contemplate single handed seizure of cattle from the cattle pen he was not carrying any weapon at all and therefore there was no need for the accused t go for Lazaro 9 s bill—hook and then savagely deal the deadly blo.w on deceased. The four 30 brothers would have easily held back the deceased with bare hands. So, the accused attacked deceased unlawfully and without any excuse at all. Did the accused intend to kill deceased or at least cause him grievous harm? As I have already said, the deceased was cornpltely unarmed and had come to the home of Lazaro for the ekecution of a court order which must be iresurned to have been 23- a lawful one. The court ardor did not meri;ion he seizure of accusecPs property and there had not been any verba]; exchanges between the deceased and the accused. The accused went into Lazaro's house and came out with the billhook. He used it with great force to inflict tho fatal woind on a vulnerable part of the body of the deceased — the neck, nearly severing off the head since acordingto Dr. Mwaisela the head was kept in contact with the rest of the body by a mere skin on the left side of the neck. In my View, such a heavy brutal blow with a known lethal weapon on such a vulnerable part of the body 10 of deceased clearly meant that tIle accused intended to cause death of the deceased out of shcei' spite. I therefore respectifully c.iare the unanimous opinion of the lady and gentlemen assessor3 that the accused is guilty as charged. I accordingly find him guilty of murder contary to section 196 of the Penal Code, J.A. IV[ROSO JT) GE Allocutus: I agree that I did a wrong. I have notbing else to add. 20 SENTENCE The accused Wiston Tukete wambene has been found guilty and convicted of murder con -brary to section 196 of the Penal Code, There is only one sentence which this court is empowered to lose for such an offence and that is to be sentenced to death. I therefore sentence you to suffer death by hanging and it is so directed. J.A. 1VIROSO JUDGE Right of apea1 explained and the assessors are thanked and 30 dischargeci J.A. MROSO At Nbeya JUDGE 16/8/85 JAFI/ATU' lima. 0 e 0,1 24