Court name
Court of Appeal of Tanzania

Mwihambi Lumambo vs Republic () [1986] TZCA 7 (26 March 1986);

Law report citations
1984 TLR 336 (TZCA)
Media neutral citation
[1986] TZCA 7

Makame, J.A. delivered the following judgment of the court: The appellant Mwihambi Lumambo was a grandfather with a menage of four wives and seventeen children.  He got himself involved with P.W.1  GMseyi Simango, a Std. VI pupil, as a result of which P.W.1 bore him a child, a baby-girl called Seche.  Seche was only eight months old when she got killed in presence of her two parents.  Following his trial by the High Court sitting at Dodoma (Maina, J.), the child's father, the appellant, was found guilty of murdering  H the little girl and was consequently sentenced to suffer death by hanging.  He is appealing to this court and is being represented by Mr. Raithatha, learned counsel.  On behalf of the respondent Republic Mr. Safari, learned State Attorney, is resisting the appeal. I
               
  A In his own Memorandum of Appeal the appellant urged that the killing was in fact accidental and that P.W.1 was influenced into testifying falsely against him.  In his supplementary Memorandum Mr. Raithatha urged that the learned trial judge erred in not inquiring into the issue of the appellant's insanity,   B and he argued the point before us.
The evidence adduced at the trial showed that the appellant and P.W.1 were very fond of each other and that the appellant clearly loved the deceased.  It also showed that the appellant was a placid person of even diposition.  Mr. Raithatha urged that in view of that and in the absence of motive the killing was   C inexplicable and P.W.1's credibility should have been considered more carefully.  The trial court should have delved into the possibility that the appellant was temporarily insane and Mr. Raithatha drew our attention to some portions of the testimony of P.W.2 Moses Libanaga,  at the material time the CCM   DBranch Secretary of Ndurugumi Village, Mpwapwa District, where the death occurred. P.W.2 said:
   People were pouring water on accused till he resumed consciousness.  I asked if he recognized me.  He said he did.  I E asked what he did but he said that all he remembered was that some people were grabbing the deceased from him and that he threw the deceased under a bed to save the child from death.  I told him that the child had died.
   And  P.W.1 Mseyi said that there was no quarrel between her and the accused.  I thought the accused was confused F mentally when he did the act and so I sent him to police Station.
  G Only the appellant and P.W.1 were present when the child got killed.  We respectfully agree with Mr. Raithatha that the evidence was that the appellant and P.W.1 were on such good terms.  It is for the same reason that we, on our part, cannot imagine why P.W.1 should want to testify falsely against her child's father and a man she obviously loved.  We are unable to accept the appellant's contention that P.W.1 was   H persuaded to lie against him.  We note, on the other hand, that P.W.1 was quite fair and she said a lot of good things about the appellant - that he had always been good to her and that he very much loved the child.  We are satisfied, as was the learned trial judge, that P.W.1 was a witness of truth.
  I According to P.W.1, who was still living in her parent's homestead, the appellant was visiting her that fateful afternoon.  He
               
told her he was going into the house she was occupying and when she went there she found that had  A locked himself in.  He opened for her and followed her into the bedroom where he asked her if she loved him.  She told him she did, whereupon the deceased announced that he would kill the child and then commit suicide.  P.W.1 asked him why he would want to do that, but appellant merely repeated what he  Bhad said.  P.W.1 tried to run away but the appellant caught up with her, knocked her down, slapped her and grabbed the child from her.  Then, "The accused held the deceased's arm and one leg and he hit the deceased on a bed leg twice.  The deceased cried out only once and then kept quite.  I ran away from the house and I raised alarm". C
When people went to the house in answer to P.W.1's cries they found that the door had been secured from inside.  They broke it open and found the appellant dangling from a rope.  The little girl's dead body was under a bed. D
In his evidence in court the appellant gave a significantly different version.  He said that when P.W.1 found him in the house she made the fire and then said she was going back to a local dance which was going on in the village and where she had been.  He called her to the bed, to talk to her, but instead she  E walked past him and wanted to go out.  He grabbed the khanga P.W.1 was using to carry the deceased on her back.  The khanga gave in, and the child fell off, hitting her head on the leg of the bed.  The deceased bled from the nose and died in the appellant's arms.  When he found this the appellant became so sad that he decided to end his life.  He tied a rope on the beam of the house and hanged himself.  He did not know  F what else happened until he regained consciousness
As we have said, we find P.W.1's version credible and it was the one accepted by the trial court.  Going by it, the appellant announced before hand, despite P.W.1's assurance that she still loved him, that he  Gwould kill the deceased and then kill himself.  So he had made the decision.  The medical report, that the deceased's skull had sustained two fractures, would seem to support P.W.1's assertion that the appellant hit the deceased's head twice on the head, and tend to disprove the appellant's version of accidental fall.   H Bashing a little child's head so violently can only have been intended to cause death or grievous bodily harm.
Mr. Raithatha has canvassed the idea that the question of the appellant's mental condition should have been gone into in view of P.W.2's evidence above quoted.  As Mr. Safari rightly pointed out, that  Ievidence was the only suggestion on record that the appellant
             
  A was insane.  However Mr. Safari eventually conceded that the learned trial judge should have referred the appellant to a Mental Hospital.
  B The relevant section in Criminal Procedure Code would be Section 168A, because here no evidence was given of the appellant's insanity for it to come under Section 168A(1).  Under the said section 168A, the trial court May adjourn the proceedings and order detention in a mental hospital for medical examination, but only if it appears to the court that the person charged may have been insane.  The learned trial judge directed his mind on the matter and remarked:
C    The accused does not raise the defence of insanity and I found no evidence that he was in any way insane.
So the position here is that it is on record that it did not appear to the judge that the appellant may have   D been insane etc.  What both learned counsel are urging us, in effect, is to hold that it should have appeared to the learned trial judge that the appellant may have been insane.  With respect, we do not think we have enough material on record that would compel us to hold so.  The scanty assertion by P.W.2 was not sufficient evidence to make it appear to the trial court that the appellant may have been insane etc.    E This man was recovering from an unsuccessful attempt to kill himself and he might have been suffering a hallucination after his stupor.  On the other hand he might have wished to say something to prepare the ground for his future defence.  We do not know.  What we do know is that we are not entitled, in the   F circumstances, to fault the fact that it did not appear to the trial court that the appellant may have been insane.  We are also aware that the learned trial court did not put the issue of insanity to the gentlemen assessors.  Insanity was not raised by the Defence, and the learned trial judge found no evidence of insanity at all.
  G Mr. Raithatha wondered why the appellant should have decided to kill his little girl.  We may wonder also but then, "wonders are many, but the greatest of them all is Man".
The conviction of the appellant was in our view sound, on the evidence, and so we dismiss the appeal.
H Appeal dismissed.
               
A