kanisius mtowela vs republic 1986 tzca 50 7 october 1986

IB THE COURT OP APPEAL OF TANZANIA AT JJ/iti iJ3 SALAAM CORAH s 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 conviction.of the High Court of Tanzania. a.t Mtwaxa) (Sama,tta,, J.) da,ted the 12th day of September, 1983 in Criminal Sessions Case Ho, 7 of 1982 JUiiGMEHT OF 'THE COURT MUSTAFA, J.A.a The appellant wa.s charged with and convicted of murder. He is a.ppealing against his conviction. The deceased was a, cousin or relative of the appellant. There was evidence that the appellant and the deceased had not been on friendly terms; in fa,ct there was credible evidence that the appellant had, on several occasions threatened the life of the deceased. Those threats arose because of disputes as the a.ppellant had suspected the deceased to have been responsible for the death of the appellant1s dog, and the appellant also suspected that the deceased had some affair with one of the appellant1s wives. In any event, on the material day, the deceased wa,s drinking in the house of P.W.9* with other people. The appellant entered the compound, and with a bill hook split open the skull of the deceased. The deceased died shortly thereafter. According to the medical evidence, the ca.use of dea,th was the fra.cture of the skull, which resulted in the brains coming out.. No word was spoken by the a,ppellant when he struck the deceased that fatal blow. P.W.3 who was drinking with the deceased, saw the appellant hitting the deceased with the bill hook. P.V/.5 saw the appellant retrieving the bill hook from the slcull of the deceased* The appellant made an extra judicial statement to a Justice of the Pea.ce admitting tha/t he had killed the deceased. At the trial the a,ppellant elected to remain silent and called, no witnesses. 1%. Rweyemamu appeared for the appellant. He submitted tha,t there was insufficient evidence of malice aforethought. He stated only one blow was delivered by the appellant and that would indicate the lack of malice. He said that the appellant had harboured anger against the deceased because of the appellant's suspicion that the appellant's wife ha,d an affair T..rith the deceased, and that provided provocation* We have carefully reviewed the evidence adduced at the trial. There was some suggestion that the appellant had suspected an aXfair between the deceased and the appellant's wife, but that happened several months before the attack.. In fa.ct that suspicion would appear to have been groundless^ That suspicion could not possibly amount to provocation. There was also uncontradicted evidence that after the killing, the appellant told P.V.3 "Ilaua, ka,bisa:i. This clearly indicated that the appellant had intended to kill. Apart from that statement the wea,pon used, a bill hook, and the na.ture and suddenness of the attack clearly established that the killing was done with malice aforethought* , .. « ./3• There wa,s some evidence that the appellant ha,d partaken of liquor on the material day, but no evidence at all that he was drunk* We are satisfied that the trial judge came to the right conclusion in convicting the appellant of murder as charged* We find October, 1986 R. II. KISAMJA JUSTICE OP APPEAL A. M. A. 0MAJ1 JUSTICE OF APPEAL I certify that this is a true copy of the original (J. H. MSOFFE) . DEPUTY REGISTRAR