19900517 TZCA Mbeya5

Ilif TI:;:i;; COURT OF APPEAL OF TAifZ1-ilHA AT MJ3EYA (CORAM: KL.,U,1·:G~J. 9 J. A. 9 · RAH.:illL.::.~I 2 J. 11. 2 .And MNZi.,iv:-..s 9 J •.j.. ) CRTI:IC..~1 .:i.PP.d:~L NO. 150 OF 1989 B~T.LlilT O!::>'K..i. J03.iJPII r-1133:IlULi:. • o o o o o o o .. :PP.&:.i.hJJT T".~...J i:GFll131IC. • • • 0 o 0 000000 •• R.!:3P01Uiili.~T c·.p:;:)eal from t-'".e conv~ction of the. Hi 6: . ~ Court o1 Tarrnania at 1'-~beya) (M1·raikasu, .J ~ ) dated t: e 1st day of June, 1989 in Crimbal uessi_ons Case No,.11 of 1981 JL'J.)Gl,~.::JiJT OF Tf.I8 COURT KL:>.i.NG.i 2 . J ••i:. g Tue appellant was co1-r,,ricted of murder contrary to section 196 of tb.e Penal Code and sente;_1ced. to dea·th by the :C:igh Court (Mwaikasu,Je) sitting at Irine,a.. I-Ie is noT·r appealing against both conviction and sentenceo · In t:J.is Court he is represented by I;Ir. Mwakilasa while the respondent Republic is rep1~ese:1 ied by J\ir. Xd1.mgvxv., State Attorney. Most of t}1e evidence in support of t:1e charge vras contained in an extra-judic;i.al stateme.at (:Jxh.P.3) -~rhicl: the appellant had made before P'.T~5, a justice of the peace& , T.u.e facts of the case may be summarized very briefly as i'ollousi .... · .'.Ihe appellant uas the· husband of the deceased but their married_ life .was not al toe;etller smooth.- The· appellant claimed. that (")n one occasion fae deceased gave him food, mixed with nails from her fin 0 ers and. toe$ and also with hair froln her private parts.. .ls a result of this he suffered ill heaJ. th including getting thin, experiencing. pain in the stomach and chest and failure of his penis to erect .. · Upon consulting witchdoctors he was told thai ' , the deceased was responsible fo:r tllat~ Ire complained. to the village chairman about ,the matter folloi:ring uhi~h he and the deceased were re·conciled,. ~1.cting en the advice given du.rinc3 tl::.e reconcillia.tion, the appellant consulted a local medicineman who gave him medicine which cured him,. .::. t t:1e time of tJ:..e inc id en t the deceased was J?roposing to marry her cousin one John nw-egala (P1T.4). ~~t the same time she was five months pregnant but the appel1<1.nt did_ not know the man responsible for the pregnancy. Then on the day of the incide~t t~e said John M'Wegala (PW.4) and. another man visited the appellant 1 s homeo John asked to spend the night there claiming that he was drunk. 'Ihe appellant refL~ed. but took both men and found. them alternative a~oommodation .cil&ewhere for 't:1e night. Upcn his return home the . deceased. quarrelled_ with him for having' sent the visitors away, adding th~t the appellant was impotent nnd was going to die in a few days. In answer· to a question put by the appellant she said_ that tl1e appella.rl; .would die t::.roue;h h0r secret instrurn~nt affecting l:i.is stomach. Where- upon the a:ppellant.9 using a hoe ~andle, hit the deceased. on the arm, causing a fructure of the arm, and on the heu.d causfog her to fall dorm. To finish her off, hG olau~tered her with a knife and she died. instantly. In his defence tb.e appellant flatly d0nied the charge and."' put up an alibi but the trial Court, accepting the prose.oution ovidenoe, rGjeoted the appellQ.rlt 's dofence und accordingly convicted him f•r murder" Mr. I1fv,akilo.sa filed lli1d ari3u0d. only onG ground. of ?,p:peal. While conoedin 6· tte killing ot tl:ie d0cea.sed by the appellant, ho submitted. in .••• /3 3 ··- effect tl.lz.t the app01lnnt 1 s defence of provocation was not consid.ered adequately. .,iccording to the learned Coµ.nsal tl:ere were two aspects to the appellc.nt 1 s def.ance of provocations ne.mely, the insult by the deceased th2.t foe appellant was impotent, nnd tl1c t}1reat by t:.J.0 deceased t~1a t he ( tt.e appella;,1 t) 1ns go'ing to die in a few days. Counsel I s complaint is tJ.1,J. t tJ.1e trial Court considered only the threat aspect of t::..,e provocation bv.t not the insult aspect of it., ·'ihat . complaint a,pp0c,rs justified. ilhen dealing wit;.;. this matter the learned Jud2,e said.~- 11 How what are t'.:e acts or insult that have been complained by the accused. to haw been provocative to him as to make him bo:::C2,ve as he didl It is the alleged deceased 1s t:!:treats tlla t tl::.c accu.3ed would die soon on account of the all0c1cd pc:1.rts of the decoased. 1 s body allegod to have been administered. to him in his food sometime in 1978, ·which b.ad. tten r0ndcred·him very thin and caused his penis to be paral iz ed11 •. The learned 'Jud 5 e then considered at some length t:10 allog,3d threat to tlle appollant'o health but en.mo to the conclusion t~at it d.id . not amount to legal provocation.. E:e did not, hm-rovor, consider the alleged insult by ttG dece2.sed. tl.tat tho appollax1t w::s impotent. Uor did ho dirGct t:1e as::rnsoorn on that aspocto Eis direction to the assossorG on th0 issuG of pro-,rocation w2,13 as folloi-1s:- 11 ,:.a to t:io accw:ied 1 s defence of pr◊-1.rocation ac comas fortt f~om his confGssion, it docs a:ppoar tll0 t W;::.c., t actually mo-v-od. Lim to a.ssaul t tho doc02.sed in tl:e we,y l:0 did was h0r all0god tJ:.r0s.t th2,t ho WJ-G goil1g to die soon b0c2.v.Go of the local rncdicino s'.:;.o Lad. earlier administ0rcd by mixing it with his food .• 0 .A!id after revimd.113 the ovio.onco touc'..:ing on t'tc point and explaining tho moanin 5 of "'p.:rovocation11 as. dcfi.J.10d undor section 202 of tl::.o Penal 4 Code, ho loft t:ie j_s3uc to t}10 c.s303sors in tho following terms:- 11 1Jow, lady and ,gontlomu.n assossors is it your c,pinion that i-rnro tLo doccaocd. 1 s tb.ron.ts true, t].::.a t would l::..e,vo provoked ru:iy re2.son2.blo and ordinary person of t'.:;.0 accused, 1s com,-;1w1i ty and standard. of lii'o 2nd thinking so Q.S to make him 1030 ti □ self-control .:i.nd bo:.1c.vo as t~.o accus0d did to t:.:o dcc0asode If ;rour answer to such qv.ootion is posi tivo, t).-:on you stould find tLo accused to l::.nve boon not guilty of tto offence cl:.argcd.1 but :3v.il ty of t:::o lGssor offcmce of mansln.~ tor. ot;_,orwi::,o you will be '3llti tlGd to disca,rd sue:.: c. dofepco and find t:.10 c1cm,1..,3od gv.il ty of t\G oi\'onco if murd or as c~::1r:30d. 11 Ho did not give any diroction to tho assessors 011 t::0 insult aspect of tlle alleged provocation. 'Iha t w2.s cle:ariy wrone,. Whore t):o prisoner's dofonco consists. of more t):an one olom0nt or aspQct 1 t!:o Court has a duty to consider e..11 tho olcmonts, In tho instant case tl--_o appellant 1 s defence of provocation clearly contained ttc olom0nt of n tb.rGc,t by t;:..o accor.scd to his heal th, and an clement of inscl t by t:lo d.JcG.:.isod th0t to was impotent. 'I'o tl:e extent that the Court d.oe.l t only with tto clomcmt of tltrcc.. t to his l:.eal th, tho Court conGider0d t110 a..:.JPG11o.nt 1 □ dofonco only in.part .. Tho l0arnod trial Jv.d 0 o t.a.d equally 2. du.ty to direct t;.;.o c1ssossoro on th0 aspect of tLo allogod. insult of impotonco and also to consider it l:imsclf in his judgomcn t. T'.u.orc W'3rc circumstances. su.rrounding t!1is 2.llogation which in ' our view wore mn.tGricl, 'TI.10 docoaocd wo..s carr;;:il1g· a prc.gna.ncy w.b.osc · ·.' ··i;J: 1·--, anpollant did not kn w · · t sJ.\j ·pil'tu:.i:-.:.i J:' 0 • -~ t t:-"o 32.IIlO time t!:o deceased was threatening or proposin.3 to marry e1..nott.or man - John l\ivrn 6ala (PW.4)., That ia to say, Pf-l.4 was in a Nal sense tho ap:polln.nt s 1 matrimonial rival. Tt,m· tho ::w.id rival (P1J.4) cruno to tho appellant's ••• /5 house to ask for ovcrnig~t 2.ccommodation thoro c.nd upon tl:c appellant turning l::.im awa.y the d.occ2.scd took offence, picked up a quarrel :ind in the process insul tod. tl-:'..o appellant of b,,d-J13' impotent. Tb.a Court a.nd t'.:..o a.sscssors ougl:t to tavo conoidorod wt.otter tl10 insult issu0d '•r utturod in such ciroumst:::.ncos w:-.s likely to mnko t!.10 app1.:llant lo3o control cmd cause him to rocct c.s Lo did~ For our part, wo arc unc1blo to say for certain tL:.n.t had tte -loarnoci Judg-3 directed himself Md. t!.:o e.sscssors as indica t0d tl:i.oy would have nocossariiy come to tl10 conclusion which they di_d .. Givinc, tho bcnofi t of such doubt to t!lo c1:ppollant, wo according... ly quash tho appellant's conviction for rrru.rdcr a11d substitute ttorofor conviction for ma.nslaughtqr. In passing sentence, we take into account tb.2.,t tte appellant is a first offender and Las boon in custody for n little over ten years w>ic:." is a long time.. Eowovor t'~o killing 1-ras undoubtedly most vicious. 'n10 doceas0d was a d.cfoncelGss woman c2.rryi11g a five months prognancy. In killin 6 her t:..o appellant uoed dondly weapon or weapons. Using a hoc hai1dl0, ho \it l1or on tl.:13 head [',nd on tho arm causing a fr1.cture of t:.:.o o.rm and cm,Gin,:J )'.!.er to fall down. _\.nd. ao if tta t was not onou.gh he wont to li tor2.lly slaUG!J.tor her using a knife, thGroby makin6 sure tl..;1 t n.11 cI::a.ncos of ~.1er survival WJro effoctivoly oxclud0d., It would be no oxaggar£'.tion to sci.y that t!.o killing bordJr0d. on murd.:ir itself. 6'v.ch cruel and mGrcilcss killin&, cannot be mot witb. leniency. It must attract a severe penal t.y, Considering t1:!o totality of tl:o circumstances of tli.e case, we tl:ink tl:v..t a s,mtoncc of ;;ii:;l:t (8) y0n.rs 1 imprisonment would mu0t t!~o justice of foe ·ca.so, a.-id. it is so ord.:lrod• . •_,../6 . ... .l 6 'Ibo appellant 1s appeal tl:oroforo succeeds to this limited extent .. D.i Ti:!."'D at IviB.&Yf,. this 17 tJ.: dnJ of I1by1 1990 • R~lle ICT ..:LJ.'Wi~ JUSTICE OF _·._pP.8f~L JU3TICE OF ~~PPE..i.L JU3TIC~ OF ."..PPE..-:i..L I certify th11t this is a tru.o copy of t::o orii;inal. ,... j,~1/J (J .Eo E,tFm) SErJIOR DE:eUTY REGL3TR.:Jt I