19860620 TZCA Dar es Salaam

' ' ,. r : ~~~~ --~.f·-. \t~ IN THE COURT OF APPEAL OF 'l'l,NZ1,NIA A1' MWANZ,1 0 ) CRIMINAL APPEAL NO. 89 OF 1985 DOMICIAN Kl',BU'i'ELANA. • • • • • • I ••\PPELLANT VERSUS THE REPUBLIC. ~ • RE.3PONDEN•£ (hppeal_from the convic-1-ioD of -1-he High Couri- of Tanzania at Mwa nza ) ( Mwa 1 usa nya , J. ) dai-ed .. he 20i-h day of Sep .. ember, 1985 in Criminal Sessions Case No. 30 of 1982 JUJGMENT OF THE COURT MUSTAFA, J.A.; The appellant was convic .. ed of murder in .. he High Cour+, and he is appealing. On or ab9ui- 8.3.82 .. he appellan .. had fovn1 his wife commi+ting adul+ery _wi+h -1-he deceased. The <;!ppellant cu .. his wife iojui.;:ing '9 het" and -1-he_dE'ceased was ordered -1-0 pay compensa .. ion for i-ha+ i~ " ' :,' aci- of adul .. ery. ,l On or abou .. 13 .. h March, 19e3, some 5 days la .. er, according :I i l·,r : ,'!;' i''I \,I r:j 1:• ii '. '! I :: 'i to P!W.1 he heard ao alarm frQm +he iecease1, qnd in answer li1 piercing the wgll of_ .. he deceased's hy ... Deceased was seen ilf' 11 ruoning ou-1- of -1-be hu+, holding his in+es+ines which were falling I ' •' oui- of hi§ spli .. abdomen. The appellant cbased .. he 1e~eased ,, ~ : t', I :·• §nd \ihen .. he qeceased fell dgwn, P.111.1 saw -1-he appellan-1- sgearing fi ·t II i-he i-higb of .. he decea§ed wi-1-h a :1 spear. There was brigh~ moonligh+ and visibili-1-y was good • • I",: " I ,t I 'I ~,: j ,:~,' '· ·I·' r· ~I; 1il' • I! :·, •! 2 P.W.3 also 15,'4.~. '-he appellc_!n'- chasing ~he deceased and spearing_him and P.W.S also s 2w '-he appellan'- piercing +-he fragile wall of +-he decP.ased 's hu1- wi-'-h his spc·ar. I The appellc.!nt in a s-'-a-'-emen+- no1- on oa~h, s-'-a-'-ed -'-ha-'- his wife lef+- bis_hu1- af+-er c_! quarrel and -'-he!:_1 he dis_coyered .his wife la-'-e 1-ha+- oigh+- tn -'-h~ deceased's hu~, c_!pparen1-1y drinking. ,. 1 He also apparen,.ly 211-erna+-ively alleged '-ha-'- he found -'-hem in a compromising rosi+-ion. Appellan+- -'-hen said he raised a~ ala.rl!l. The deceased ran_out of his bk!'" and impaled himself on appellan+- 1 -s spear by acciden~, 1-bus spli1-1-ing open his own a~omen. The ,,. ::: I! ~1 : ~L·1 jj '. f !~ c_!ppellant rao af'-er 1-he deceased .: od wben dece 2 sed fell down, • '-he appellan+- s-'-abbed 1eceased on 1-he 1-high wi+-h his spear. rr ] ·ii ' !' I I ,,. •I' t~j• I' ' I, l I ti; 11·1 ~I ! ' ' .:·" The qeceased died of haemorrhc_!ge and toxaemia resul+-ing 11;: :1,. in circula+-ory collapse from•1-he wounds. t··::: ',· ti: CU'- _I( ' ~~ ' The ti;ial juige and -'-he assessors believed ._he evtd~nce "'. adduced py l-he Republic. The judge di1 riot believe ._ha1-_+-he appellant ha_d rat~ed an 2larm. had c.!ppellan-!z'.'.. threa+-ened _'-he prosecu-'-ion wt'-nesses, w!Jo in an~wer i '-O +-he alarm raised by 1-he deceased, had Lried +-o in'-ervene +-o 1:, Ii 'r,.:::i ,, ,, 11 .,_ I !:: I I ,11 TIJe trial ju1ge rejecLe1 ._he_claim i.ha+- 1-he deceased had 'I ~cciden1-a11y nn in+-o ~he appe11an'-'s spelr. I He had als9 rejec+-cd , ,. I ' ii ' 1:; +-he_dE'fence of pro.voc-a-1-ion. There was no :evidence <,:ha1-_1-he wife I I, , I i ji '; of +-he appellan1- was a1- -'-he sce!:_le or +-her~abQu+-s when -'-he gppellan~ l, '' ' •.1: was s+-icking his spe 2 r 1-hrough +-he_~alls of ... he deceased hu1-_ : ; 'i \--,, r or when '-he appellan-'- was chasi~g 1-t,edeceased and spedring i-he I ~;~• I! i • C' 0 l!I O., • I G /3 0 t' 'Iii ,, ' 11: !! I I ii ' ,,,"i11 J (t "• I J "''· • I: .~- ,,I·I :1,- ,:, • 3 deceased. The ~wo assessors were of l,.he same view as ,._he ,._rial judge. _Mr. Kahangwa for J..he appellan:: has 'submiJ..,..ed before_us +-he ~am~ two gefences. On a revi~w of J..he_evigence we are sa,..isfied +-hal-- l--h~ +-ri 2 1 judge hag righl,.ly rejecJ..e:l J..he def~nc~ gf I acciden+-al s,._abbing of ,._he de~easect:s abdomen qr ,._hat +-her~ aJ..+-ack on ,._he 1eceaseg by ,._he appellanJ... _The eviden~e §dduced es ... ablished clearly J..ha,._ J..he appellan,._ was properly convicJ..ed of murder. The appeal is dismissed. fvlWANZJ\ J..his 20+-h day of June, 1986. rt. MUSTAFA JUSTICE OF APPEAL I JUSTICE OF APPEAL, R. H. KI SAN GA JUSTICE OF APPEAL I certify ,._ha+- +-his is a +-rue copy•of ,._he original. I (J. H. l'l30FFE) DEPUTY REGISTRAR • • . - - -- I