Court name
Court of Appeal of Tanzania

Katemi Ndaki vs Republic () [1992] TZCA 41 (12 October 1992);

Law report citations
1992 TLR 297 (TZCA)
Media neutral citation
[1992] TZCA 41

Omar, Ramadhani and Mnzavas, JJ.A.: In this appeal the appellant was charged with and convicted of murder c/s 196 of the Penal Code and sentenced to death. Dissatisfied with the finding and the sentence of the High Court, (Moshi, J.,), he is appealing to this Court. D
Arguing the appeal on behalf of the appellant Mr. Kahangwa, learned defence Counsel submitted that the appellant killed the deceased because of provocation offered to him by the deceased.
In the alternative, but without prejudice to the defence of provocation, it was Mr. E Kahangwa's submission that because one of the assessors was of the opinion that conditions for proper identification of the appellant as the person who fatally attacked the deceased with a panga on the material night were lacking the trial Court should have resolved the doubt in favour of the appellant and find him not guilty. F
The Court was invited to allow the appeal and acquit the appellant. In rebuttal Mr. Muna, learned State Attorney, supported the conviction. The learned Counsel submitted that PW.1, daughter of the deceased, had identified the appellant through light of a torch, one Silvester, shone in the room. Mr. Muna was also of the view that even if G the question of identification of the appellant was resolved in his favour his confession to the justice of the peace implicated him with the murder of the deceased. It was the learned State Attorney's submission that the trial Court was right in coming to the conclusion that appellant's confession to the justice of the peace was free and H voluntary. Mr. Muna argued that on the evidence tendered in the lower Court the defence of provocation was not available to the appellant.
In this case the evidence that tended to connect the appellant with the death of the deceased is the testimony of Kweji Katwale, I

OMAR JJA, RAMADHANI JJA, MNZAVAS JJA
(PW.1), who testified that she saw the appellant through a torch light as he was A mercilessly cutting the deceased with a panga.
One of the assessors did not however believe that the witness, (PW.1), could have properly identified the appellant as the killer notwithstanding the aid of a torch; given that it was a dark night.
The other evidence which tended to implicate the appellant with the death of the B deceased was appellant's extra-judicial statement which apparently amounted to a confession. He however in his defence in Court repudiated part of the statement which was most incriminating. This was his statement that he had visited deceased's house at about 1 a.m. and attacked the deceased, deceased's wife and one of his children with C a panga.
The learned trial judge examined the confession in great detail and on the basis of the decision in Tuwamoi v Uganda [1967] E.A. 91 came to the conclusion that appellant's confession - exhibit P.3, was given freely and voluntarily; and that it could not but be true. With respect to the learned trial judge we have no quarrel with the D finding that appellant's confession could not have been anything but true given the enmity between the deceased and the appellant based on belief of witchcraft and bearing in mind that at the material time the appellant was facing a charge of threats to murder in E a Primary Court where the deceased was the complainant.
Our only concern is whether appellant's confession read as a whole afforded him a defence of provocation.
We hereby quote in extenso his confession to the justice of the peace: F
MAELEZO YANGU MAFUPI
TULIKUWA NA KESI MAHAKAMA YA MWANZO KABLA NA MAREHEMU KATWALE G SAHANI. BAADA YA KUTUKANANA KWENYE POMBE NILIWEKWA LOCK-UP, BAADAYE SIKU HIYO NILIPATA MDHAMINI NA KUPEWA TAREHE YA KURUDI. KABLA YA TAREHE YETU MAREHEMU ALINISHITAKI SUNGUSUNGU NIKADAIWA NIJIELEZE. NILIJIBU H KUWA KESI YANGU IKO MAHAKAMANI. NILITOLEWA NJE ILI WAJADILI. BAADAYE NILIITWA NA KUELEZWA NAPEWA VIBOKO 16 NA SH. 20,000/=, NILIKATAA KUPIGWA KUWA WATANIUA. HIVYO NILILIPA SHS. 10,000/= ILI NISIPIGWE, PIA NILILIPA SHS. I 20,000/=, JUMLA SHS.

OMAR JJA, RAMADHANI JJA, MNZAVAS JJA
A 30,000/=. BAADAYE NILIULIZA KAMA YAMEKWISHA NDIPO MAREHEMU ALIKUBALI IMEKWISHA NDIPO TUKAONDOKA. NILIENDA MAHAKAMA SIKU MOJA KABLA YA SIKU YETU. SIKUKUTA MTU, KESHO YAKE SIKWENDA NIKAWA NA SAFARI. KURUDI NILIKUTA KUITWA SHAURINI NDIPO NILIKASIRIKA KUONA WATOTO WANGU WANALALA NJAA B NA BADO MAREHEMU ANAENDELEZA KESI NA FEDHA ZANGU ZOTE NIMEMALIZIA KWAKE. NILIENDA KWAKE KUPIGA HODI KAMA SAA SABA. MAREHEMU MKEWE NA WATOTO WAKE WAWILI WALITOKA NJE. NILIANZA KUWAKATA MAREHEMU MKEWE NA C MTOTO WAO MMOJA KWA PANGA. BAADAYE NILIKIMBIA NA KULITUPA PANGA MTONI SIMIYU NIKARUDI NYUMBANI. LILIPOPIGWA YOWE NILIENDA KUJIFICHA KIJIJI CHA D NYAMIGAMBA BADALA YA KIJIJI CHANGU CHA CHANDULU. NDIPO BAADAYE NILITAFUTWA NA KUKAMATWA HAYA NDIYO MAELEZO YANGU.
From our scrutiny of this confession its gist is that the appellant lost his temper and E was provoked when he received a Court summons about the case between him and the deceased after Sungusungu had reconciled them and after he was made to cough up a total of Shs. 30,000/= and the deceased had said that the quarrel between them had ended. F
He was pained to see that his family had nothing to eat as he had paid all the money he had in order to end the quarrel between him and the deceased but the deceased had, it would appear, taken him for a ride.
Apparently neither in his judgment nor in his summing up to the gentlemen assessors G did the learned trial judge mention the possibility that the appellant may have been provoked by deceased's behaviour. Had he taken this possibility into account he would no doubt have put to the assessors the question whether deceased's behaviour could H have provoked an ordinary person of the community to which the appellant belonged.
As it was held in the case of Chacha s/o Wambura v R. [1953] 20 EACA 339. "The question of provocation is ordinarily one of fact and it is only in the clearest cases that it should be withdrawn from consideration on that basis. All elements of provocation I should be considered together in assessing their effect."

The Eastern Africa Court of Appeal had also this to say in Festo Shirabu Musungu v. A R. [1955] 22 EACA 454 - "Facts relied on as provocation do not have to be 'strictly proved'. It is only necessary that there should be such evidence as to raise reasonable probability that they exist. If this is the effect of the evidence, the onus lying upon the prosecution is not discharged and murder is not proved." B
The question as to whether the appellant went to deceased's house and attacked him immediately after he came to know of the Court summons was not gone into by the trial Court and we are therefore unable to say whether or not the killing was done in the C heat of passion caused by sudden provocation.
We are also not in a position to say what would have been the opinion of the assessors on the question of provocation if the facts had been put to them.
This omission does, in our considered opinion, raise doubt as to whether an ordinary D person of the community to which the appellant lived would not have been provoked by deceased's outlandish behaviour. The doubt is resolved in favour of the appellant and we accordingly find him not guilty of murder but guilty of the lesser offence of manslaughter c/s 195 of the Penal Code. E
The conviction for murder is quashed and the sentence of death is hereby set aside.
Taking into account that the appellant has been in remand since 1989 and his not very young age we feel that a sentence of 5 years imprisonment commencing from the day F he was convicted - (11/3/92) will meet the justice of the case. The appellant is so sentenced.
G Appeal allowed.

A
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