20050223 TZCA Dar es Salaam 1

IN THE COURT OF APPEAL OFTANZANIA AT DAR ES SALAAM (CORAM: LUBUVA, J.A., MUNUO, J.A., And MSOFFE, J.A.) CRIMINAL APPEAL NO. 37 OF 2000 BETWEEN HAMISI SALE HE LYAPINGA ............................................... APPELLANT AND THE REPUBLIC ............................................................... RESPONDENT {Appeal from the decision of the High Court of Tanzania at Da:r es Salaam) (Ihema, J.) dated the 17th day of September, 1999 in Criminal Session Case No. 47 of 1994 JUDGMENT OF THE COURT LUBUVA, J.A.: This is an appeal against the decision of the High Court, Ihema, J. The appellant was charged with and convicted of the offence of murder contrary to section 196·of the Penal Code and was sentenced to death. Hamis $alehe Lyapinga, the appellant~ yvas the son of the deceased, Kibibi Mohamed. They lived at the village of Kiumbwamindi in Kisarawe District, Coast Region. It is not in dispute that the appellant killed the.deceased. The only _issue was whether th_e appellant killed the deceased with malice . ; 2 aforethought. The learrY:~d trial judge found that the appellant killed the deceased with the requisite intention to cause the_ death of the deceased. The appellant was consequently convicted as. charged. From the decision, this appeal has been instituted . .. The complaint raised in this appeal is that on the basis of the ,. evidence adduced for the prosecution and defence, malice aforethought had not been established. It was therefore erroneous on the part of the learned trial judge to convict the appellant for the offence of murder. As the determination of the appeal turns on the issue whether . malice aforethought was established,. we deem it appropriate to examine the evidence which was accepted and relied upon by the trial judge in grounding the conviction against the appellant. As found by the _ trial judge, _the material_ witness _on- this issue w-as Monica Kilindo, (PW4) - grand daughter of the deceased. At the time of the incident, she was a Std. VII student living with the deceased. In her evidence, she stated inter alia: I remember accused came back alone from the ngoma dance. Accused found my grandmother in the kitchen and when invited to eat he declined saying that he would not 3 eat anybodys food. I remember accused was in a state of anger when he declined to · take supper. Thereafter we all went inside to sleep. Accused went into his fathers house where he then summoned my grand- mother/his mother to go into the house .... I heard accused telling the deceased ... Accused continued to demand his money from · the deceased. ... I heard accused shouting angrily-at the deceased- -:witb regard-to--his money which. was allegedly squandered by his young brother. - I then heard deceased being beaten and on coming out of the house I heard deceased crying that she was dying. ... As I went out to the scene I saw the accused holding a panga and then ran away. Shortly after the incident, the appellant ran back to the. ngoma dance where he met Said Ally Kilindo (PW~), his elder brother to whom he said in English ''I have killed my mother.// According to PW2, the appellant appeared normal. Before us in this appeal, Mr. Kweka, learned Counsel for the ' appellant, with great industry urged that the appellant did not know the nature and quality of his action when he killed his mother, the 4 deceased. He said, because the appellant loved his mother, the deceased, that there was no quarrel before the incident, that the app,eUant was not owed anything by the deceased and that the ap>,pre:Hamt was drunk, the judge erred in finding that malice aforetbought had been established. He further explained that the apµe'llant ran away after the incident because, as he put it, "the appellant was confused". Mrs. Kabisa, learned State Attorney, for the respondent Republic, responded to Mr. Kweka's submissions. She submitted that the appellant knew the nature of his act when he killed the deceased. She said this was so because of the following reason. The conduct of the appellant before and after the incident showed that he knew what he was doing. For instance, she further stated, according to PW2 and PW4, the appellant appeared normal and that he ran away because he realized that what he had done was wrong. In determining the mental condition of an accused person at the time of the commission of the offence his conduct prior and after the offence is relevant. In this case, the conduct of the appellant before the deceased was attacked is reflected from the evidence of Monica Kilindo (PW4), the grand daughter of the deceased. In her 5 evidence extracted above, it is clear that on his return from the ngoma dance, the appellant was in normal condition. He started quarrelling with the deceased demanding money from her angrily. Then the appellant attacked her and ran away holding. a panga, leaving the d$(i~,9.sed in a critical condition. Having attacked the deceased the appellant fled to the ngoma dance where he looked for his- -elder brother Said Ally Kilindo (PW2). He told_ PW2. in .English ''I have killed my mother'~ Such conduct on the part of the appellant before and after attacking the deceased is, in our view indicative of the fact that the appellant was aware of what he had done. His running away from the scene of crime and telling PW2 at the ngoma dance that he had killed the deceased, his mother, was, as correctly held by the trial judge yet another telling factor of the mental condition of the appellant. He realized that he had done something wrong to the deceased and so, he fled. Still conscious of his act, immediately he informed his elder brother at the ngoma dance of what he had done. In the circumstance, we are respectfully not in agreement with Mr. Kweka, learned counsel, that the appellant ran away from the scene of crime because he was confused. If at all, as urged by Mr. Kweka, 6 the appellant was, due to drunkenness, confused when he committed the offence, ordinarily when the confusion was over after the attack, it would be expected that he would stay on to assist the deceased in her critical condition and not to run away. In that light the claim based on confusion is untenable, it was correctly rejected. All in all, therefore, we are satisfied that the trial judge was justified in his finding thatthe appellant intended to cause the death of the deceased with malice aforethought in terms of section 200 of the Penal Code. This is borne out from the evidence of the vital witnesses PW2 and PW4 who saw what the appellant did prior and after the incident. These witnesses were found to be credible by the trial judge and we can see no reason to hold otherwise. After all, the appellant used a panga in inflicting the injuries to the deceased, a defenceless old lady. It is common knowledge that malice aforethought can be inferred from the conduct of the accused. See for instance, Mosses Michael @ Tall v. Republic (1994) TLR 195. On the basis of such evidence, the defence of drunkenness as urged by Mr. Kweka does not arise. On the other hand, even if it is accepted that the appellant partook the drink, gongo inclusive and smoking, still, we are 7 resolutely of the view that at the time of the offence he was not so drunk as to be incapable of apprec_iating the nature and quality of his · action. It is trite principle of law that a person is taken to intend the natural consequences of his act. In the instant case, the evidence was such that, like the trial judge, we are in agreement with Mrs. Kabisa that 'in attacking the deceased with a panga, the appellant intended to cause her death.. The conviction was therefore properly founded. For the foregoing reasons, the appeal is dismissed in its entirety. DATED at~DAR ES_ SALAAM this 23 rd day of February, 2005. ,.,... ,..,."~,~ r D.Z. LUBUVA JUSTICE OF APPEAL . /::, -~!~-. - E. N·. MUNUO · · ~ ' JUSTICE OF APPEAL -f., '=-~.~ ''<{ ' J. H. MSOFFE JUSTICE OF APPEAL I certify that this is a true copy of the original. (S.~BURA) SENIOR DEPUTY REGISTRAR