19891107 TZCA Dar es Salaam1

IN THE CC:URT 0F APPEAL OF TANZAN!A AT DAR ES SALAAM (CORAM: CRILINAL APPEAL NO. 2 3 OF 1989 JARIBU Jl,;ZEE RAMA. DHANI. . . • • • APPELLANT versus THE REPLBLi:c. • • • • • . . RESPONDENT (Appeal from the Judgerherit of the High Court of Tanzania at Morogoro) (,!<,.Y. an_d o ,, J. ) dated the 4th day of March, 1988 ' in __ . ------ ,. - . -~DGEMENT OF THE.COURT ¥.tAKAME' J o.A.o.: Th: appellant was condemned ,to death by the High Court sitting at Morogoroo Kyando, J. ,;.ias satisfied. that despite the appellant's protestations the appellant did kill the deceaseQ MWAJUMA. ALLY, the mother of his stickling child, and that he had the necessary malice 3forethoUght to constitute the offence of mu:rdero Th=! appellant and the deo-;ased had set up house at the deceased'° s mother's home and they had a: baby. The deceased used to sell liquor at a local pub and the appellant would go there so as to go back home vi,i_ th her. On the material day, s·th November, 1985 the app€.llant, apparently very jealous over the deceased, was at the pub with the deceased who w~s serving her customerso The deceascd's mother was also there, drinking • ........ /2 2 Among the customers v,'as P.W.1 MOHAMED NASSOR MPAYA, the local Ward Secretary, and the appellant suspected that Mpaya had sexual intercourse i.vi th the deceased that evening right there at the club \in the women's toilet. The evidence was that that could not have been as the deceased's and Mpaya's visits to the latrine did not coincideo 'lne appellant made a scene there.before leaving with the deceased and their child. The deceased never reached home. Later that night she was found lying in a field of sugar cane, groaning and badly i~jured, with cut wounds. She died at Morogoro Government Hospital twc, days later. At the trial the appellant denied the charge. He told a fantastic story about the deceased being attacked by two people in the darkness: He did not see them but he knew they were two, and he abandOn'c:d his wcman there. Instead· of going to their abode, which was nearer accc-rding to his own father D.W.2 MZEE RAMADHANI, than D.4.2's homestead; he went tu D.W.2's and when he got there he did two things: he shunted the child to his own sister, the child's •aunt; and then went off with his father to the local Primary Cc:>urt to make a report. It is difficult to see why he should w.:1.nt to go and make a report to the Primary Court if all that he --:lid with the deceased was "kushikana-shikana" according to another version by him. Then.there was his strange behaviour when pe.)ple arrived at his father's hOuse trying to locate the r ~c~ased. He came ~ut only very reluctantly and hesitated to join the search · 'ty party bec3.use, he saic:1.,, -he was in the minority while the people on the other side were sc many. Mr. Lukwaro, 'learned Counsel for i!he appellant sought to assail the trial ccurt's decision which decision Miss Munisi, learned.State Attorney, supported. The learned trial judge ••••• /3 3 carefully dealt with the appellant's confession to P.W.10 CONSTAN'rI1-JO SHILOGILE, Principal District Magistrate. The learned High Court judge appreciated that the appellant had retracted the confession but.he reached 'the unhesitating conclusiJn 1 that the confession was made freely and was i necessarily trueo With respect, we are of the same view •. The reasJns assigned for the killing. tie up with aspects the appellant himself owned in court, prelude to the fatal assault. There was also clear malice-aforet~ought for the killing and we are satisfied that the High Court ju<' gement was hereby accordingly dismiss D day of November, 1989. L. M~ MAKAME JUSTICE OF APPEAL Ao OMAR JUSTICE OF APPEAL L., N. MFALILA ~JI ( J. H. MS0FFE ---~ SENIOR DEPUTY ~~ISTRAR. · ............. •·· ..... ~.