19881013 TZCA Dar es Salaam

rn TI:::: COF T OF Al'P.m.L OF 'L'\J:JZJ,NIA AT TANG.A CRD'.D'~'J.. APP'J.AL NO. 63 OF 1987 I Ju1,;A A 'I'i:TIJI-I..':..lJI APPI;;LLA!.,T !' Vei·si.:s L .I TIG IGP®LIC Il.J3POND'JNT I '1. -l ·1 (Appeal from tl:e conviction of tho :\ High COllJ~t oi Ta.ni,.::,nia at Tansa,) i l_ ;I (rr. E. D. Sisya, J.) dated the d I I 26th day of May, 1987. ,. i r i in --; Ci·imj_nal Sessions Case lJo. 39/12_8! JUD'.}31:-'Giif'l' OF TI::J COU:JT KISA.NGA 9 J .A. This appeal arises from tho appellant's conviction for murder contrary to section 196 of the Penal Code, and the sent.:mce of death ,.. imposed on him oy the Iligh Court (Sisya, J.) sitting here at Tanga. 0 (.I The facts of the co..se were :rc.ther short and simple and may be summarized briefly as follows1- The appelln.nt and his companion were riding a bicycle on a dark ni,::,;ht which bicycle he,d no li;:;hts or brakes. f· i 't They knocked down the deceased who was walkinc; alon:; the road. The ~. ! deceased asked the appellant why he had knocked him dmm and in reply ,. \. the appellant rudely told the deoeasrJd not to ba::.:rass him as he, the ,._ I,. deceased, Jwas not a policeman. As the appellant wanted to ride away the deceased prevented him. Whereupon the appellant put clow,.1 tlle bicycle and G..ssaul·~ed the cleceaucd in the cou.r:Je of which he ctalJbecl him i,1 t!1e ntomach and 1 Ol.,• ❖_ , 10 J._. ·"',-,ce. De cea ~ · ceu.' d'ie cl :.:rorn 'l ·c.:1e • b uou;,.1a o 0.;a ' in · "' G..1e stomac> on the :follow:u,g. day, i, . • • • 0 0 2/ 0 ••. h I• I- 2 Tl.le appelluat :i'latly c~miod tl10 clmrr;;·e aacl put up an when he wa,, wulkin15 about and car.ie to a crowd of peopl c where l judge rejected the c:.l ibi a:.1c'. convic'.;ccl him accoi·t'cingly .. ,! ,I only one gTound a;,'2. ab2.!1tlone~ the o'.;hor., 'l'hc os:,~1ce of' l1i::, complaix,·i; in thic colG (;TOl"!.l1ti wa.s timt -~b.c uppclla.nt sl:\ould. l therefore, cuch kill int-; ,-rhic2 rocul t,; froD 2. figh·;; ahou.ld ,.. appellant which induced the r.ppellua-t -~o r0act auc', ::;tab- him appclle.n·~ wl::y he hc1.u lo.1ockcd him down, to u:cich the n:ppellant ' t I, I- 3 appellant to the police to have the matter ~ettl :~d there. It was in consequence of this that the appellant inflictad the fatal injurye Quite clearly what the deceased said and·did could not be said to constitute unlawful conduct. For, he was perfectly entitled to ask the appellant why he had knocked him down when the road along which h~ was cycling was sufficiently wide. He was equ~lly justifiad to prevent him fr<>m riding away before settling the matter and, if necessary, to try to arrest and take him to the police to have the mcttEr settled there. In "ther words all along the appt:!lL:mt w2s thE: agressor and we can sec n~thing unlawful in the conduct of thE: decea.!Sed. .t.n ... those circumstance-s- i·t seems plain to us· tha.t there can be no peg on which to hang the d,~fenc~ of provocetion. Like the learned trial judge we are satisfi3d that thE defence of provocation was not open to the appellant, and N therefore r. Kavuta' s c'lmplaint is, with r(~spAct, without merit~--:··:Ln--the_ result the appeal fails and i t is '3.Cordingly d~snii-~-~~ct"-id ·1t-~··:~\~tire ty. Dated at Tang·a this y13th day of October, 1988. (L. M. MAKAME) JUSTICE OF APPEAL (R.H. KISANGA) JUSTICE OF APPEAL (A. M. A. OMAR) JUSTICE OF APPEAL this is a true C"PY of th·3 origimi.1. • 0··1:1.i . (J. H. MS0FFE) SENIOR DEPUTY REGISr,:v.R