Nyalali, C.J. delivered the following judgment of the court: The appellant, namely Eliasi Seif, was charged and convicted in the High Court at Morogoro for the offence of murder c/s 196 of the Penal D Code and was sentenced to suffer death by hanging. He is aggrieved by the conviction and sentence, hence this appeal to this court. Messrs Mbusa and Mushokorwa, learned Counsel appeared for him in this court, whereas Mr. Kapinga, learned State Attorney represented the respondent Republic.
E On the record of proceedings both before this court and the High Court, the following primary and secondary facts are either common ground or undisputed between the parties: Sometime during the night of 28th September, 1976 in Ibingu village within the Kilosa District of Morogoro Region, F the appellant attacked one James Hamisi with a pounding stick or pestle at the home of one Waziri Hamisi. The said James Hamisi was a brother of the said Waziri Hamisi who happened not to be at his home. Waziri Hamisi's wife, namely one Stahimili, was present when the attack took place. The G appellant is a nephew of both Waziri Hamisi and James Hamisi. One Tengeza Saanane - that is the first prosecution witness (P.W.1), a neighbour and cousin of Waziri Hamisi, heard a woman's cry of protest emanating from his cousin's home and decided to go and see what was happening but the appellant threatened to assault him if he went closer to the scene. The said James Hamisi then H managed to escape for his own safety, The following day, the appellant was apprehended in the same village by the second prosecution witness (P.W.2) and he accompanied the said James Waziri who was carried to Kilosa Government Hospital. While at Kilosa, the appellant as re-arrested by the I police. On the 8th October, 1976, the said James Waziri died at the hospital and a postmortem examination was performed by a government doctor.
With regard to primary and secondary matters which, on the proceedings in this court and the court A below, are in dispute between the parties, it is the prosecution case that the death of the deceased resulted from the appellant's attack and that the appellant intentionally killed him without lawful justification or excuse. On the other hand, it is the contention of the defence that the appellant B attacked the deceased thinking that it was a hyena which had invaded his uncle's home. It is part of the defence case that the appellant's actions and thinking were under the influence of alcohol which he had been drinking for a long time.
The first point for consideration and decision is whether the appellant could have been drunk when C he did what he did. The learned trial judge specifically considered this point in his judgment and stated:
Finally, I will consider whether the accused was so drunk so as to be incapable of forming the intent to kill or to D cause grievous bodily harm. The accused himself has denied that he was so drunk although he had been drinking for a long time, namely from 10 a.m. to 12 midnight. The gentlemen assessors did not find any evidence of drunkenness of such a nature which would have made accused incapable of forming the E prerequisite intent. I do not find any evidence of such drunkenness which made the accused incapable of forming the prerequisite intent. F
This finding of the trial court on the issue of drunkenness has not been challenged on appeal and we see no reason to re-examine it further.
The next point for consideration and decision is whether the appellant mistook the deceased for a G hyena when attacking him. The learned trial judge also specifically considered this point in his judgment and stated:
From the evidence as a whole, I find no difficulty in rejecting the defence story about the hyena being in the H house of Stahimili. This story cannot be possibly true for the following reasons: If the story were true, the accused who had more than one occasion to explain why he had assaulted the deceased would have given this story. ... Secondly, if the story of the accused about the hyena were true, the accused who was represented I would have challenged the witnesses in cross-
A examination when they claimed that he told them that he had beaten the deceased because he though it (sic) was a stranger sleeping with his uncle's wife. Nowhere does the accused allude to the hyena story except when he began giving his defence.
B Mr. Mbusa, learned counsel for the appellant, has submitted in effect that the learned trial judge erred in coming to this conclusion on this point as there was a failure by the prosecution to call Stahimili - that is, the appellant's uncle's wife who was present when the attack took place. He C argues that this failure on the part of the prosecution gives rise to an adverse inference that the prosecution decided not to call this eye witness because she would have supported the appellant's evidence concerning his mistake about the hyena. Surprisingly this submission was supported by D Mr. Kapinga on behalf of the Republic, We say 'surprisingly' because Mr. Kapinga did not indicate that he was not supporting the conviction until we pressed him to say so.
With due respect to both Mr. Mbusa and Mr. Kapinga, we do not think that such an adverse E inference can be drawn from the circumstances of this case. A mistake of fact concerns a state of mind of the person making the mistake. So, Stahimili's evidence would have been crucial only if there was indication or a probability that she could have known about the mistake of fact made by F the appellant. In his testimony given in his defence at the trial, the appellant stated inter alia:
When I got to the home of my uncle I said 'Hodi'. The woman replied 'Karibu'. Then she asked who I was. I G told her. Then she asked what I wanted. I told her to give me my clothes for covering myself. She asked where the cloth was. I said it was hung up in the house. Then she said 'who is here?' I asked, 'but the door is shut?' She said, 'There must be something'. Then she opened the door and came out. Then I entered the house. Then I looked under the bed and then I asked, 'what is here?' I got no reply. I did so four times. Then H I saw something move towards me. I then took a pounding stick as I thought it could be a hyena. The stick was inside the house. I hit once. I hit at the face. Then the man I hit ran out. Asked Stahimili who was outside what that man was. Then I told Stahimili to go back to sleep there. But she refused. I then escorted I her to Tengeza's house ...
It is obvious from the appellant's own testimony that Stahimili did not know and could not have A known about the appellant's alleged mistake of fact since she was outside the house when the appellant allegedly was mistaken after he had entered the house to look under the bed. There is no likelihood therefore that her evidence could have supported the appellant's defence or undermined B the prosecution case. That is why we are unable to draw an adverse inference against the prosecution for failure to call her to give evidence in this case, although, of course, the failure makes us curious about what she might have said.
The other important consideration arises from what the appellant stated to P.W.2 and to the police C officer - that is, the third prosecution witness (P.W.3). These witnesses testified to the effect that the appellant told them that he attacked the deceased upon the mistaken belief that the deceased was a stranger committing adultery with his uncle's wife. This evidence raises the issue of D provocation which was specifically considered and ruled out by the trial court. The learned trial judge stated inter alia in his judgment.
The gentlemen assessors were of the view that a reasonable man would have called out for help so as to arrest E the stranger. I am of the same view. I am not convinced that a reasonable man or an ordinary man would have lost his head and reacted by beating the stranger on the head with a pounding stick...
We concur with the view of the gentlemen assessors and the learned trial judge on this point. We F are satisfied that a reasonable or ordinary person would not have been provoked by finding one of his uncles or any person committing adultery with the wife of another uncle of his. At worst he would be shocked and scandalized.
The other important point is whether the deceased died as a result of the appellant's attack. This G issue poses no problem as the medical evidence clearly shows that death was due to head injury and brain damage. Obviously the appellant's attack killed the deceased.
Finally, we have to consider and decide whether the appellant had malice aforethought and had no H lawful justification or excuse in killing the deceased. The learned trial judge found the existence of malice aforethought from the nature of the weapon used and the location of the injury inflicted. We respectfully concur. On the evidence, there could not have been and there was no lawful I justification or excuse for killing the deceased. The appellant was
A therefore properly convicted. Since the sentence of death by hanging is mandatory by law, we dismiss this appeal in its entirety.