19891218 TZCA Mwanza3

IN TIDJ -~oum OF APF.J:AL . OF T' .tif:TZ.PJiiIA ' . . (co:ya. f"1fK---~rEA.J • l:11 OI1£lRa Jo -t1:a_ .llnd Mr .li.:LILA, J •A.} . pBI_1:lI1UU, -4:PPE.AL NO_o .l£.} 9F 19.§2 MliIT A li,,rJ-:i\ITKO .APPT-:IT ,Ll,UT .And THE REPUBLIC M:3F0:i:IDErlT ( Awe al from the conviction of· the HiGTI, Court of Tanza.l'lia at Mu.soma) (Moshi, J.) dated the 22nd d!=lv" of June 1989 JUDGEMilll?r OF TEE ·:l OUR:r The ap~llant lUlITA MJJJIKO vi.Ttually decapitated his teenage wife, M.ARY COSTJFrnm, and also severely out her on the left a:r.m on 5th September 1985 at It.1.Jzy'o Ujama.a. Village in the District of Tari...me. She died because the oervical spinal co:ro. was ·cut. The appellant and the deceased were living in the homestead of the appella..··rtts. paternal uncle PvT.4 ABDALLAH M.ALIPA where they were given a small house to oohabit in l'W.4's wife, Fvl'.3 ZUBED.A ABD ..-Um, was living in another house. in the compound while on the material day PW.4 was awa:g at Tarime where ho · was emploY'J<I. P1fe3 was the most material witness at the trial. She testified to the effect· that that morning the deceased went to N.3•s houze to greet her. The1i. the deoeased took a saucepan a.nd went out with it. As soon as the deoeased had gone out PW.3 heani the d.eoeased o:cying out what she was dying. F.>r.3, who was indisposed, went to the door whe:re she saw the deoeased lying on the ground,· wounded and ,bleeding. The appall ant,· who was c arr.ring a long knife was standing over _the deceased. When PvT.3 asked the appellant why he had done ~hat, the appellant threatened ·to slash her with the weapon so :AT.3 had to hur:cy baok into the house and shut hereself in. When ~r;.3 raised a.n ala:r.,n the appellant ·ran mrn:y. 2 I The- .iq,J>8lla.irt- "Sdmitted:-"that he killed the deceased but the J)efenoa . . ,. version was· that the appellant was m1ey ownught at a wedding: · When he ·got back home :in the rooming the deceased tB.ITied in opening the door for him I when he announced his arrival. A.man called M.!DIDGIJ Mil.HWA bolted out of the house, a.nned with a sime. Manra and the appellant struggled with each other and in the p:rocess the sime fell do-wn. 'l'he appellant picked up the ueapon and just then the deceased came out of the l:iou:3e and 11 joined in the struggle" in the course of which the appellant cut the deceas~d by bad luck. The le~ed trial judge was unable to agree with the two assessom who opined that the killing was accidental. It is a: rule of---praotice and most desirable that where a· trial j·ud~ disagree with his assess<?rs. he should state his reasons; the more so,· we would add, when the assessor's opini~n is unaui.m,oua. See BAL.Al® smcm: vn~, 1954 21 EiC.A 209; and CHAALES SEGESELA VR, Court of .Appaal Criminal Appeal No. 13 of 1973. In· the present case the learned judge gave clea.r and engaging reasons why he was unable to agree with the Gentlemen _.Assessors. The. learned trial judge said that af'ter watching · PW'.3 testify and despite. her advanced~~ and her obvious fright and trembling, he was sat~sfied that the old lady had told the troth and so he was prepared to :rely on her testimony. Her version would of course not accommodate the appellant's version which was hinting that the appellant had caught his wife with a man in ci:roumstances suggestive of ad.uJ. ter.ve As aforesaid, the deceased had just oonie out qf PW.3's house when the appellant struck. Rather than explaining to l'rl.3 that Maohugo had just come out' of the appellant •s house and the deceased B"Ot out when he, thi:3 appellant, was engaged in a fight with Machugo1 the appellant offered violence to PW.3 also and ran mvey as soon as PW.3 made an ala.tm. On the evidence we 'believe that the stor.y of the appellant stJ.'\lggling with Maohungo for a weapon w~ untrue and in any case we cannot see how suoh two terrible injuries cotu.d have been caused only a:lcid.entally in the circumstances related by the appellant. Mr. Magongo, lear.aed advocate for the appellant complained that Pi'T.41 who . was ~,sq at Ta.rime 1 was in no position· to sey that Machungo was not present· at the scene. That is granted, but, with respect, what PW.4 said was merely 3 that duJ:jng tlla mateJ:i.,aJ. period Macmmgo was <living at Ke~oho in Kenya where he was working and that no one had told h~, PW.41 that Machungo had come baok. 1-Te quite agree that PW' .4 was in no J?OSi tion to sey posU,i.wJ.y that Maobungo was not at the scene that material morning but we al'9 of olear view tha\~~es not detract from the ti:lal court's ultimate finding that what the ap).)0llant committed 11·as Murder. The motive for the murder was not established but the law is of course it did not have to be. It is :possible, howeve'r., that the fatal assault was a resulil of the appellant's demand :for sexual interoourse with his young pregnant wife. kcord.ing to the appellant 1s uncle, Pff.4, the appellant was intent upon having sexual intimacy with his wife and PW o4 advised< t.he appellant not to fo:rce his attentions on the deceased as she was in the family wa;y. We agree with Mr. Malamsha, learned State Atton1ey that the High Court decision oai111ot be assailed. We accordingly dismis3 the appeal. Di!rED at M'i'l.ilHZA this 18th dcy of December, 1989. L• Mo M.lOC.AM0 JUBTICE OF APPE}J., A. Mo A. OMliR JUSTICE OF APP~.AL L. M. MF1 .illLA JUJTIOE OF APPEAL I certify that this is a true copy of the original _0-;a(l ////~; fZ - {.'/~ ( S. S. ICAIJ i!GE:" } J)JJ~q··,TJ:'! ;:is-~•· ----·- ---·---· - .. •' «• · · - - ~:R