19850710 TZCA Dar es Salaam

.. · IE 'rifil COURT OF APPI;AL OF' T!-1.NZANIA !!J~EYA . .~!X.ALALr/'c.J.; MAY..A1vib 2 ·J~A~ ·Mt.o or1AR, J.A.J. ,. CRININAL APPEAL NO. 58 OF 1984 BETt-f:EEN il.LDO MBI LINYI. 0 • 0 O O .• O O O O o O O O O O O J O O O ., 0 APPELLANT

AIID . . . Txt:J REPUBLI d • ~: ............... , •••••••• RCS Pb N.DEN';r ( Appeal fro~ the conviction of the Higfr dourl of T211zania at Iringa) · (Maina, J.) dated the 30th day of August, 1984) in Criminal Sessions case I:Jo o 1 of ,1_284 ··--·- ·--- •~-r;-: .~ ------· ' "•ill! ~ ....~·t,4;:. ,,,:.,.' r. .. JUDGEMENT €lF THE COURT ,•.• The appellant [lldo Mbilinyi was charged and convicted in the High CouTt &t Mbeya for the offence of murder c/s 196 of the Penal Cocic➔ ancl was sentenced to suffer death by hanging. He was aggrieved by th3 conviction and sentence, hence this ap-t)eal to this court. 11.ir. r~wa:ngcilo, learned advocate appeared for the appellant whereas tho respondent Republic was represented by Mr. Kapinga1 learned State Attorney. On the proceedings befoll?e this Court .and the High Court th~ following :primary and secondary facts are either common ground or undisputed between the parties: On or a~but the 3rd January, 19e), the ap;,olla,1t hacked to.death one Kwilasa s/o Mng'ong*o with an ~~·in the bush. Both the appellant and the deceased were residents of ~gogQ Ki ba01:i within Mufindi District, in Iring a Rcg~on. Prior to his de~th, tho deceased., who was a friend of the appellant, had a sum of shG. ~,000/= fro::1 his employer, that is, the third prosecution witness (P.W.jH Sub:c;Gquontl;y on th0 same day, he met the appellantg showed him tho lll~hey- and

told hir,-i that the sum amounted to shs. 2,000/=. The deceased aM tl).e ap1)01lant later in the afternoon on the swne day went to the home of tho docen.sod where they met the appellant's wife, thc1t is, tho first l)rosocu·l;ion witness (P.W.1). The appellant was then carrying an axe. ;rhey (~_id not stay there longo They soon loft for the bush whore the appellant killed the deceased. After killing the doooased 7 the appellant went past the home of the deceased, on being asked b;)r P.W.l about the whereabouts of the deceased, the appellant stated that the deceased 2,nd the ~/ ., ..' . ~ ., \ . ~~ ~ ,J~> . .'!: \ 2 .... n,ppolL:iirt had parted company at a road junction and tho doceascd wen:t his sopardo way into the bush to collect timberj ~{ that.'he (docoased);_> v.:ould · return home later 0 The following day, after fruitless inquires, p.-,.;.1 reported to her ten cell lead.er and police st~tion ~bout the fact and cir9wnstances of her husband's disappearance. · A ~·ear6h was ll,lountcd ·, and on tho second day, the dead body of the deceased was dis6overed in ·the bush. It was taken to Kibo.oni village where a postmortem examination was conducted by a government doctor;. Subsequently the appellant was arrested and taken before a justice of the peace to whom he rna.d.o ?n extra-judicial statement in which he confessed to killing the dcco3.Sed. As to primar;f and secondar.r

matters which, on tho procoedil1 6 s before tl1ic Court and the High Court are in dispute between the particr.-; 1 it iG the prosecution case that the appellant had malice aforethought in killing the deceased. - that is, he killed the deceased in order to rob money from him. On tho other hand, it is tho defence case th:::t tho a11pellant was temporarily insane at the time of the incident, The first point for consideration and decision in this case is, ;;thethc,r the death of the deceased resu.i tcd from the appellant is attack, and it poses no difficulties at all, The confession of tho appellant ai1d tho raedical evidence clearly show beyond doubt that the deceased died us a result of the appellant•s attack. The other important point for consideration and decision in thiti ~~If 1 c-,so is 1,Jhether tho ap::,ollant was insane when ho killed tho deceas0d .. The lo.:.,,n1ed trial judge spocificall;;r considered this point at length and whi lG so doing st at ed in part: Both assessors found the accused ~illed, the deceased 11 intentionally,. They pointed out that if accused had any mental confusion, he would not have boon ablcto plan the kiJ.linc o,s he did.. The second assessor pointed out that the accused's act of luri11c~ tho deceased into the forest, killilJit him, otcaling tho money, counting it as stated in tho ext:ra-.' judicial statement, prove that -~he ac::msed knew what

ho 1,as doing and that he was not mentally confused. Doth assessors 1-mre of tho opinion thu.t tho accu,sed is Guilt~r of murder. ln my opinion, theaccused 's conduct boforo 1 during and after· the ki.Uing of the deceased does not SU,?;~es-c that he was suffering from the disease of the mind. ··~··-/3. ... ·3 Noi ther does it in any wcy indi6ate that he {.fas incapable. of . undorst anding ,,rhfit he did nor th2:t what ho ·.did t-fa~ :;w·rong ~ ' On the contrary, th~ 'accused*s. co11a.uct is clear~ ohl of delivorQte. killing~ He. gave a detailed a:#count to tho· jusfi90 of the. peace of all what he did that· day. Tha-t accoUX1t is consistent t,Ii th the evidence e;i vcn by the prosocut ion w:i.:tncdb• H~ repeat cd that, though with less dcti..tlls, in his defence· during t~e trial. Thb fact that tho deceased showed him money could not have made him insan0 so as not to be rosponsi blo for his action,. Tho accusecl, on seeing the· money, d0cidod to steal it froln tho ct.ccoi:t!30d. and that is the roE1,Son he armed himself with an axe and tho:ri ho deceived the deceased that they were to go to tho forest to fetch firewood. The accused himself killed tho deceased, stoic the money, counted it and then wont to the accused 1 s house wh0re ho deceived tho docoased's wifeu•o•••••All these cloarly show that the accused was perfectly normal and he later went into hiding in another vi

llagc to avoid arrest,. Ho Hith respect, we concur- with tho views nnd finclings of tho learned trial juclgo on~~ point. We realize thut molcy has groat influence CNor some })Oople 1 but we do not think that the •more sight of it is sufficient to render someone insane as clefined under tho law. Undoubtedly, on tho avidenoc in this case, the appellant did not bocomq insanc,j, Tho fiha1 :point for consideration ih this case is whether tho . . appellant was properly convicted as chatgcd~ The loarnocl tri:~l judge found malidc afor0thought on the part of the 2-ppollant from tho fo.d thc,t tho killing was carefully planned, Md thG uso of a viciour::; 1croapon on the head of tho decc2.Scdo We agn,in concur with the lc~:.rnod trial judge. Since there was no le.wful justifica.tion or oxcuso for the killing, the appcllo.nt wk properly convicted as chc:.rccd. \fo dismiss the appeal in its entirety., DA'Y~D at HBEYA this 10th da,y of July, 1985. Fo L. NYALALI

CHIEF JUSTICE L. M. MJUCAME .,. JUSTICE OF -- ....... APPEAL - I ' : I I"; the original,.