19880606 TZCA Dar es Salaam2

IN THE COURT OF APPEAL OF Tl\.NZANIA AT DAH ES SALAi:JvI ( CORAM g iVITJS'rAFA 2 J .A. 2 f1AKl·J1E 2 J .!i q .And OM.ill 9 J .A.) CRIMINAL APPEAL NO. 16 OF 1988 JON.AS IV[l3ATANI MWLLUKO MAJENGO •••••••••• APPELLANT VERSUS THE REPUBLIC •••••••••••••••••••••••• ·•••RESPONDENT (Appeal from the conviction of the High Court of Tanzania at Morogoro) (Bahati, J.) dated 24th day of March, 1984 in Criminal, Sessions Case No. 13 of 1982 )- JUDGMENT OF Tll:C COURT MUSTAFA 2 J .A. z The appellant was convicted of murde):'. and sentenced to death and is appealing to this Court. The appellant is a Mgogo and was alleged to have stabbed to death the deceas~d, wqo was a Mnyamwez i. The deceased was a.t the road side with P .W .1 on his way· home after having had. a. drink in a. pombe c1up. The bicycle broke dovm and was being repaued. At some stage the appellant passed by. The appellant had nlso been __to at, the pombe club with the deceased. The deceased addressedbhe appellant the following words 9 or words to, that effect nNyoko .mtani wangu - wewe f,'gogo". The appel~ant took offence and took• out a knife and the deceased ran off. The appellant chased and caught up with the deceased and stabbed him in the chest from the back~ • cutting into the right lun/3' e The deceased died. about the sacio time \ from intrapleural haemorrhage. The appellant went away and when arrested denied that he bad killed and tried unsuccessfully to escape • .At the trial the appellant himself admitted that the Wagogo and Wanyamwezi do joke'...w.ith one another. He said he had. taken pombe on an empty stoma.ch earlier on and he was also hungry. He sn id. 11The pombe and the hunger caused me to stab him." Mr. Mnzava i-'Tho appeared ( - 2 for the appellant in his appeal before us submitted. that the appell~nt t was provoked by the words addressed. to the appellant by the deceased.. Ifo submitteq. that prior to that incident there was no joking relationship between the appellant and the deceased. The appellant therefore was incensed and provoked by the abuse! He also submitted that s·ince the stabbing wound was inflicted when the appellant was \ chasipg the deceased and there was only one ~low, the stab was not _with consistent f. · an intention to kill or cause g_r:iev;olW hnrm. He also vaguely referred to the appella'ni:i, having partaken of pornbe as a factor to be taken into conPideration. / We are satisfied that the trial judge was right in convictibg the appellant of murder. The assessors were of the view tbat there was no provocation and that a Mnyamwezi could joke with a. Il~ogo. ' We have considered the submission of 1-'lr. Mnzava~ but we do not think they have any merit. The appellant rirightcbave lost his temper 9 but he was certainly under no legal provocation. Tbe appeal is dismissed. DATED at DAR ES SALAAM this 6th day of Jtun9,~1988. '- A. MUS'I1AFA JUSTICE OF APPEAL L. M. Mil.KAME :JUSTICE OF APPEAfJ A. M. A. OJ.V"1AR JUSTICE OF .flPPJ!¼L I certify that this is a true copy of the original. ~JC \_) 1/ <-'t I/ (J. H. MSOFFE) .§]_NIOR D.8PUTY REG IS~f!'.1 • /