kanisius mtowela vs republic 1986 tzca 25 7 october 1986

IB THE COURT OP APPEAL OF TANZANIA AT JJ/ iti iJ3 SALAAM CORAHs MUSTAFA, J .A .; KISAHGA , J .A . And OMAs', J.A . CRIMKAX APPEAL NO. J6 OF 1986 KANIoIUS IlTOV/ilLA. . . . . . . . . . APPELLANT VERSUS THE REPUBLIC. .......................................RE3P0]>iI>ElJT (Appeal from the c o n v ic tio n .o f the High Court o f Tanzania. a.t Mtwaxa) (Sama,tta,, J . ) da,ted the 12th day o f September, 1983 in Criminal Sessions Case Ho, 7 o f 1982 JUiiGMEHT OF 'THE COURT MUSTAFA, J .A .a The appellan t wa.s charged w ith and con victed o f murder. He is a.ppealing against his co n victio n . The deceased was a, cousin or r e la t iv e o f the a p p ella n t. There was evidence that the appellan t and the deceased had not been on fr ie n d ly term s; in fa,ct there was c re d ib le evidence that the appellan t had, on severa l occasions threatened the l i f e of the deceased. Those th rea ts arose because o f disputes as the a.ppellant had suspected the deceased to have been resp on sib le f o r the death o f the a p p e lla n t1s dog, and the appellan t also suspected that the deceased had some a f f a i r w ith one o f the a p p e lla n t1s w iv e s . In any even t, on the m aterial day, the deceased wa,s drinking in the house o f P.W.9* w ith other people. The ap p ellan t entered the compound, and w ith a b i l l hook s p l i t open the s k u ll o f the deceased. The deceased died sh o rtly th e r e a ft e r . According to the ......... , / 2 . 2 - medical eviden ce, the ca.use o f death was the fra.cture o f the s k u ll, which re s u lte d in the brains coming out.. No word wa,s spoken by the a,ppellant when he struck the deceased that f a t a l blow. P.W.3 who was drinking w ith the deceased, saw the appellan t h it t in g the deceased w ith the b i l l hook, P.V/,5 saw the appellant r e t r ie v in g the b i l l hook from the s k u ll o f the deceased* The a p p ellan t made an e x tra ju d ic ia l statement to a Ju stice o f the Pea.ce adm itting that he had k ille d the deceased. At the t r i a l the a,ppellant ele c te d to remain s ile n t and called, no w itn esses. 1%. Rweyemamu appeared f o r the a p p e lla n t. He submitted that th ere was in s u ffic ie n t evidence o f malice aforeth ou gh t. He sta ted only one blow was d e liv e re d by the appellan t and that would in d ica te the lack o f m alice. He said that the appellan t had harboured anger again st the deceased because o f the a p p e lla n t's suspicion th a t the a p p e lla n t's w ife ha,d an a f f a i r T..rit h the deceased, and that provided provocation* We have c a r e fu lly review ed the evidence adduced at the t r i a l . There was some suggestion that the appellan t had suspected an a f f a i r between the deceased and the a p p e lla n t's w ife , but th at happened s e v e ra l months b efore the attack.. In fa.ct that suspicion would appear to have been groundless^ That suspicion could not p o ssib ly amount to p rovocation . There was also uncontradicted evidence that a ft e r the k i l l i n g , the appellan t to ld P.\/„3 i!IIa,ua, kabisa:i. This c le a r ly in d icated that the ap p ellan t had intended to k i l l . Apart from that statement the wea,pon used, a b i l l hook, and the nature and suddenness o f the a ttack c le a r ly esta b lish ed that the k i l l i n g was done w ith m alice aforethought* , . . « ./3 • - 3 - There was some evidence that the appellant ha,d partaken o f liq u o r on the m aterial day, but no evidence at a l l that he was drunk* We are s a t is fie d that the t r i a l judge came to the r ig h t conclusion in co n victin g the appellan t o f murder as charged* W fin d no m erit vin, i tiei- appeal which is dismissed. / 1v ' / ^ 'DATED at DAE ES SALAAM th is 7th day o f October, 1986 f-» '• . V * 1 ir ' " . r*:i / 7 ^ y k. MJSTAFA ‘ ' ‘ * JUSTICE OF APPEAL R. H. KISAMJA JUSTICE OF APPEAL A. M. A. OMR JUSTICE OF APPEAL I c e r t i f y that th is is a true copy o f the o r ig in a l. (J . II. MSOFFE) . DEPUTY REGISTRAR