Court name
Court of Appeal of Tanzania

Damian Ferdinand Kiula & Charles vs Republic () [1990] TZCA 1 (23 February 1990);

Law report citations
1992 TLR 16 (TZCA)
Media neutral citation
[1990] TZCA 1

Mfalila, Kisanga and Ramadhani, JJ.A.: The appellant was convicted of the E Murder of his wife and sentenced to death by the High Court sitting at Dar es Salaam (Kyando, J.). He lodged this appeal against both conviction and the sentence of death.
There were no eye witnesses to the killing of the deceased woman Siwajibu Kondo. F She was stabbed in the privacy of their house, all the witnesses who arrived at the scene including her cousin Ali Kondo (P.W.2) found her already stabbed. However there was no dispute on the identity of the killer. The appellant admitted stabbing his deceased wife and that she died of this stab wound. What was seriously contested by the G defence at the trial were the motive, circumstances and reasons for the attack. According to the prosecution who relied on the deceased's statement which was reduced into writing and admitted in evidence as a dying declaration Ex. P.2, the appellant attacked the deceased when she announced that she was leaving him on H account of his drunkenness and quarrelsome behaviour. But according to the defence, the appellant attacked the deceased on account of her provocative acts and words.
The stabbing of the deceased was of such a nature and extent that the knife embedded in the neck could not be removed at the local hospital, the deceased had to be I referred to Muhimbili Medical

MAPIGANO AG. JA, RAMADHANI JJA, MNZAVAS JJA
Centre where the knife was dislodged and handed over to Inspector Jumanne Itunga. A But while still at Tumbi Hospital Kibaha, the deceased had occasion to call Inspector Itunga and told him the circumstances of her being stabbed. Inspector Jumanne Itunga reduced this statement into writing and this is Ex. P.2. The person who inflicted this B injury could only have intended to cause death or at the lowest to cause grievous bodily harm. On the other hand, the appellant explained that he stabbed the deceased following her provocative behaviour both in words and deeds. He said that after leaving the Police Force, he started doing some business and farming, in which the deceased was fully C involved. In the course of time they managed to accumulate shs. 80,000/= which the deceased was keeping. On the day in question, he asked the deceased to give him some shs. 25,000/= for his business trip to Morogoro. Not only did she refuse him this money but she used offensive language. This, he said, angered him and he attacked her with a knife. D
The learned trial judge considered the deceased's dying declaration as providing the motive and circumstances of the appellant's attack on the deceased, but he rejected it, stating that he was unable to place much reliance on it because in his view it was weak E and unreliable on account of the contradictions between the version given by P.W.3 and P.W.4. The contradiction being that while P.W.3 stated that the deceased gave reasons for the appellant's attack on her, P.W.4 categorically stated that she did not, she having become too weak to continue speaking. On the other hand, the learned judge accepted the version given by the appellant, that he attacked the deceased F when she refused to give him the money and used what he called "dirty words", but in his view this could not have provoked "an ordinary reasonable literate Chagga living in a village". He therefore convicted him of murder and sentenced him to death. G
In this appeal, the Tanzania Legal Corporation filed one ground of appeal on behalf of the appellant complaining that the learned judge erred in rejecting the defence of provocation, and at the hearing of this appeal Mr. Lubulira emphasized that the deceased's refusal to hand over money to the appellant as requested and her use of H dirty words must have provoked him to such an extent that he lost his self-control and acted in the heat of passion. He argued that this was how an ordinary Chagga would have reacted in the circumstances.
For the defence of provocation to stick, it must pass the objective test of whether an I ordinary man in the community to which

MAPIGANO AG. JA, RAMADHANI JJA, MNZAVAS JJA
the accused belongs would have been provoked in the circumstances, and the best A judges to determine this question are the assessors, for they are "the ordinary persons of the community to which the accused belongs". If courts adhere to this simple test and as amplified and explained in various judgments of this Court, the need to resort to judgments passed and pronounced in a different sociological context would never B arise. We have in mind the case cited by the trial judge when considering the presence or absence of provocation in this case. In considering whether the act of the deceased refusing to hand over money to the appellant amounted to provocation in law, the trial judge quoted remarks from an old case which to us appear not only unsuited to the C facts of the present case but out of place in the context of the present sociological environment. The learned judge stated:
D As regards the act of the deceased refusing to hand over money, the courts have repeatedly stated that in the case of an uneducated African villager, the reasonableness of his reaction to the provocation must be gauged not by what the judge would have done, but by what an average tribal villager might have done in the circumstances. E
This passage is from Kasumbwe v R. (1944) - EACA 116 at page 119. Unless these words were only meant to denigrate the African as it was fashionable in those days, we do not see the relevance of singling out the uneducated African villager whose reactions F should be related to the average tribal villager, and not to what the judge would have done. The Ordinance and its definition of provocation which have been in force since 1930 makes no such distinction. Everybody, whether an uneducated African villager or otherwise must be judged according to what an ordinary man of his community would G have reacted in the circumstances and not what the judge would have done. As we stated earlier, this case is also unsuited to the facts of this case because the present appellant is not an uneducated African villager. It could not therefore be applied to him even if it were sociologically acceptable. Section 202 of the Penal Code which H defines provocation provides as follows:
202. The term "provocation" means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or I in the presence of an ordinary person to another person who is under

A his immediate care, or to whom he stands in a conjugal, parental, filial or fraternal relation, or in the relation of master or servant, to deprive him of the power of self-control and to induce him to commit an assault of the kind which the person charged committed upon the person by whom the act or insult is done or offered and: B
For the purposes of this section the expression "an ordinary person" shall mean an ordinary person of the community to which the accused belongs.
In the present case the "dirty words" allegedly uttered by the deceased were not C considered because the appellant did not specify them, but even if he had done so, they would not in our view have amounted to provocation because in the appellant's own words, up to that stage he thought the deceased was joking. What angered him was, D to quote his own words:
After I had washed and returned into the house that is when she displayed her hostilities, deceased refused completely to give me the money. Because of this I was seized with E anger and I became very bitter because it is I who earned that money. In that state of anger and bitterness I injured my wife with a knife.
The learned judge was of the view that an ordinary reasonable educated Chagga F would not have been provoked by the deceased's action of refusing to hand over money to him. He would have taken other measures to get the money. We are not certain whether the learned judge was in a position to put himself into the shoes of what he called "an ordinary reasonable educated Chagga". Secondly, there was no Gevidence that the appellant is educated apart from the fact that he was at one time a policeman. The learned judge would have been on firmer ground if he had gone by the views of the assessors who rejected the appellant's story. They seemed to prefer the dying declaration as providing the basis for the attack on the deceased. They H however stated that even if the appellant's story were true, the refusal by the deceased to hand over money would not have provoked him to make him commit the kind of assault he committed on the deceased. In legal language, the assessors were saying that no ordinary man of the appellant's community, would I

be provoked by the actions of the deceased to the extent that the appellant claims he A was.
For our part we do not think there were good reasons for regarding the dying declaration in Ex.P.2 as weak and unreliable. It was recorded by a police officer who had no reason to lie against the appellant. The fact that P.W.4 did not hear the deceased B give reasons for the attack cannot be explained solely on the basis that the reasons recorded by P.W.3 were invented. Indeed the dying declaration appears very authentic as it contains a painful lament by a dying mother - "who will look after my children?" These moving words could not have been invented by P.W.3. C
For these reasons we are firmly of the view that the dying declaration provides the motive for the killing of the deceased and that the appellant invented the money story which as the assessors stated, even if it were true, could not have amounted to provocation in law. The appellant's attack on the deceased was cruel, intended and D calculated to cause death. His conviction for murder was in these circumstances well founded. Accordingly this appeal has no merit and it is dismissed.
E Appeal dismissed.

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