omari kaniki shemkande vs republic 1987 tzca 53 9 october 1987

IN THE COURT OF APPEAL OP TANZANIA AT TANGA ( TORAMs OMAR, J .A ., MFALILA, Ag. J .A ., And MAPIGANO, Ag. J .A .) CRIMINAL ,iPFE£L NO. 94 OP 1986 OMARI KAJilKI SHEMKANDE. . . . . . . APPELLANT VEKSUS THE REPUBLIC.............................................. RESPONDENT (Appeal from the co n v ictio n o f the High Court o f Tanzania at Tanga) (S is y a , J .) dated the 20th day o f November, 1986 in Criminal Sessions Case No. 22 o f 198$ JUDGMENT OF THE COURT MFALILA. A g . J.A .? The appellant OMARI I-CANIKI SHEKKANDE was con victed o f murder and. sentenced to death by the High Court S ittin g at Lushoto. He appealed against both co n v ic tio n and sentence. TJie app ellan t having admitted k i l l i n g the deceased? there was Jjjply QtM? issue f o r co n sid e ra tio n and determ ination in th is appeal najjiel-yi whether the appellant k i ll e d the deceased under circumstancos which amount t o le g a l provocation* The deceased is recorded t o have d ie d o f severe head cut wounds c o n s is tin g o f the fo llo w in g : ($ ) Peep wound d iv id in g the p a r ie t a l bones at mid lin e . Deep wound, in v o lv in g m axilla and mandible d iv id in g at the m idline both were deep enough t o expose the bra in t is s u e . L o ft humerus com pletely cut a t mid s h a ft, i f qu ite obvious from these in ju r ie s that the in te n tio n o f the p o r s ^ $rho i n f l i c t e d them was to k ill* ^he circum stancos under which the appollant k i l l e d the cLo^asod, who ijac^dpntally was h is nephew, were narrated by the appellant him­ s e l f "both in h is extra ju d ic ia l statement and evidence in C ou r^ It was ip the lig h t o f these circum stances that -fche appellant both in the High Court and in th is 3ourt advanced the defence o f p rov oca tion and ^ ia t th e re fo re he should be con v icted o f Manslaughter on lj^ Both in the extra .ju d ic ia l statement and the evidence ho gave at h is -ferial, ' a p p ella n t gave a v e ry d e ta ile d background t o the events o f tha£ day. I t app^axeg. that^ s e r ie s o f events sta rte d one day in Juno 1 982 -that /-u is ' more than a year b efore the k i l l i n g when the deceased took somo pombe apparently s u r r e p t it io u s ly t o the a p p e lla n t's w ife « h is Si aunt j When the appellant d iscov ered th is and that M s w ife hadv,*takon 2 the- pombe s e c r e t ly , be became su spiciou s o f th e ir r e la tio n s h ip . Indeed he confirmed th is when a ft e r questioning his w ife , she confessed to having an a f f a i r with the deceased but she begged him not to p u b licis e the matter nor take any a ction as i t would be very damaging s o c i a ll y i f i t became known that she had a lov e a f f a i r w ith her nephew. The a pp ellan t agreed and his w ife promised to terminate the § f f a i r . But the deceased became not only mere in solen t but a g gressiv e. He would not Qjily use abusive language against him even in fro n t o f other p eop le, but he accused him on two occasion s o f having sto le n or uprooted his casssvj)*, The d ecea sed 's in te n tio n , said the a p p ella n t, was to put him in j a i l so that he would be l e f t fre e to carry on th is lov e a f f a i r with h is w^fe. A ll t h is , he sa id , made him b u ild up strong grudge against the deceased, and he started thinking o f elim inating him. The in te n s ity o f h is grudges, he sa id , grew the more itfhen the deceased, denied, any such misconduct whenever he took him before the eld ers in the v ill a g e , but immediately th e re a fte r he would resume his in solen t behaviour. On the day in question at about 6 p.m. as he was walking home from his shamba h is urge to k i l l the deceased increased, when he saw him walking ahead o f him. 3j w i l l l e t him narrate his own sto ry o f the events moments b e fo r e the f i l l i n g j "Hivyo siku hiyo ya Jumanne tarehe 4 /1 0 /8 3 saa 12 ji o n i lcatika k it o n g o ji hicho cha Kirangwif nilimwona S a id i Bagabu (ambaye ndiyc marehemu) akiwa mbele yangu. Wakati huo mimi nilikuva natoka shambani kwangv. kulima nilikuwa nimeshika panga saa h iyo. Nilimfuata nyuma hadi kwenye korongo na ndipo n ilip o ia fik ia . i^ilipom fikia nilim w ita na ndipo a lifog eu k a. Mara tu alipogeuka n ilia n z a kumkata kwa jenga h i l o . H ilionza kumkata kwenye uso na kwenye mkono m ndipo alipoangulca ch in i na nilipo*- ondoka nilimwacha akikcroma pale ch in i na n il iju a hataaraka tena pale c h in i.''1 Y e s? the appellant had intendec to k i l l the deceased, and. he l e f t him f o r dead% In h is evidence in Court, the appellant added an in ciden t which i f accepted^ could amount to or ;ould as "the la s t straw'1 to the s e r ie s o f the d ecea sed 's in so le n t arc' aggressive behaviour against hin^ He said that as they were walking hone to g e th e r, the deceased suddently stopped and t o ld hims ‘'I know your behaviour you o ld man. " And when he asked the cle^eased what behaviour, the deceased abused him saying "Mboro yakoft. The appellant sa id he was annoyed, and. suddenly attacked the deceased and cut him w ith his panga, 4, • The learned t r i a l judge considered th is aspect o f the case and c le a r ly ......... / 3 . oonpluded that., the deceased u tte re d no suck abusive words t o the appe­ lla n t, We arc o f the same view f o r the sane reason he gave, namely that i f ho had been abused in these terms and that this, was the immediate caus<p far the a tta ck , i t i s in con ceiv a b le that the appellant could have over-Loplsed t o mention s o v i t a l inform ation in h is e x tra judicial s t a to c o r t We agree w ith the learned judge that i t was a b e la te d a ft e r thought, '.e have an a d d itio n a l reason in support o f our view that th is abusive tag was a b e la te d a ft e r thought. At the beginning ‘o f h is evidence he gave the spagon why he k i l l e d the deceased, lie said,? " I agree that I k i l le d the deceased. The reason was because he brought pombe t o my w ife , l y w ife h id the pombe and she drank i t a lo n e ,” So even by the time ho entered the witness box and sta rte d g iv in g evidence tins abuse as the immediate cause o f the k i l l i n g had not c r y s t a lis e d in h is c+ajad. I t came la t e r as he developed M s themes Without "the la s t straw "s the decea sed's previous s e r ie s o f .in solen t and 'contumelious conduct cannot? as the learned judge found and h eld , amount t o sudden and graves p ro v o ca tio n . A fte r a l l in the a p p e lla n t's own words,, he had grown u$ecv 1j© ijhe deceased’ s conduct. We are s a t i s f i e d that the t r i a l judge considered a l l the elements of provocation in th is case and r ig h t ly came t o the con clu sion that there was no :j|egal p rov oca tion in the whole a ffa ir o A ccord in g ly the appellant was p rcp e rly con v icted f o r nrur<j!Ley £tid we d iscs 14s a pp ea l, BATED a t TA.ITGA th is 9th d .y o f October, 1987o A. M. A, OMR JUSTICE OF APPEAL L . M. MFALILA Ag. JUSTICE Qg' APPEAL D. P. MAPIGA170 Ag. JUSTICE OF APPEAL |C c e r t i f y that th is is a true copy o f the o r ig in a l0 (J , n . MSOEMD) DEPUTY PJ3GISTRAR.