Court name
Court of Appeal of Tanzania

Salum Abdallah Kihonyile vs Republic () [1992] TZCA 47 (27 November 1992);

Law report citations
1992 TLR 349 (TZCA)
Media neutral citation
[1992] TZCA 47

Mfalila, Makame and Ramadhani, JJ.A.: The appellant Salum Abdallah Kihonyile B was charged with and convicted of murder. Upon being so convicted, he was sentenced to death. This appeal before us is against that conviction and sentence.
According to the version given by the prosecution at the trial, the killing of the deceased Hassan Maranda, followed an incident in which the appellant had cut the muscles of the C hind legs of a Masais cow. This was on 14/11/88. The detailed story was told by one of the Masai herdboys Njai Kisongela (P.W.4). At the time he was giving evidence, this boy was estimated to be about 12 years old. The learned trial judge allowed him to give evidence but not on oath because he found that the boy did not understand the nature D of an oath. This boy told the trial court that on the day in question he and his colleagues were herding cattle when the appellant approached their herd and cut the hind legs of one of the cows. The said cow was immobilized. The boy ran home to tell his parents and other adult Masai, that the appellant whom he knew had immobilized one of the E cows by cutting the muscles of its hind legs. On hearing this, the elders asked the boy Njai Kisongela to lead them to the scene where the cow had been cut and was lying. The boy took them there and on seeing the striken animal, one of these adults, namely F the deceased asked him to take him to the man who had done this to one of their cows. Despite being advised by his colleagues that he should not do that until it was established whether or not the culprit was just a thief, the deceased insisted on meeting the man immediately. The boy Njai led him to the appellant's hut where they found the G appellant lying down outside. According to this boy, when the appellant saw them he started shaking in fear. The deceased asked the appellant to accompany them to the place where the cow which he had cut was lying. The appellant responded by saying that he did not cut any cow, but he added that he would ask his colleague who was H inside the hut to see whether it was he who had cut the cow. He ran inside, the deceased tried to stop him without success. When the appellant came out, he was armed with a spear and threatened to teach the two a severe lesson. The two then started running with the appellant in hot persuit of the deceased. When after some I distance (65 metres according to the estimated distance), the deceased tripped and fell, the appellant

MFALILA JJA, MAKAME JJA, RAMADHANI JJA
stabbed him with a spear at the back. The blade went so deep that only the handle A came out, the steel blade remained in the body until it was removed during the post mortem examination. After stabbing the deceased, the appellant turned on the boy Njai, but he abandoned the chase when he saw people coming.
At the trial, the appellant denied cutting the cow as alleged, but admitted spearing the B decased to death, saying that he did so after being provoked by the deceased and his colleagues. According to his version, the background to the killing of the deceased was as follows: Prior to this incident, the Masai cattle had been a menace to farms in the area, and consequently he decided of late to guard his shamba. On the day in C question at about 5 p.m. he saw a group of cattle moving towards his shamba. He went out of the hut to go and chase away the cattle from his shamba. As he was doing this, he saw four Masais emerge from the grass where the cattle had originally come from. The D Masai started driving the cattle back to his shamba. They confronted him and asked him why he was driving their cattle away from the grass. When he asked the Masai where the grass was, they started assaulting him. The deceased in particular took out his hunting knife and a stick. He advanced on him and attempted to cut him with it. In the course of this confrontation, the deceased cut him on the forehead. At this stage, the E appellant ran into his hut, followed by the deceased. He collected his spear and confronted the deceased. While they were in this position, the appellant said, he stabbed the deceased with the spear. After being stabbed the deceased retreated, but another F Masai followed him. Fortunately he managed to get out of the hut and ran very fast to the local cell leader for safety.
After being addressed and directed by the learned trial judge, all the three assessors were of the opinion that throughout this incident, the appellant was acting in self-defence G against a group of Masai who had attacked him. In the circumstances, they advised that he should be acquitted.
However, the learned trial judge differed and held that both the defences of provocation and self defence were not available to the appellant. The learned judge had very high H regard for the boy Njai (P.W.4) as a witness who he said, told nothing but the truth, and that on the version as told by P.W.4, there was no room for provocation or self defence. He rejected as lies the appellant's version of the confrontation between him and the Masai during which he was stabbed on his forehead. He gave a number of I reasons. First, the learned judge said that if the appellant and the deceased

were facing each other as described by the appellant, it would not have been possible A to stab the deceased on the part of the body shown in the report. Secondly, he said that the deceased's knife was found in its sheath thereby eliminating the possibility that the deceased used or attempted to use it on the appellant. Thirdly, he said that the injury on the appellant's forehead was so superficial that it could only have been self inflicted to B match the story he prepared.
At the hearing of this appeal, Mr. Shayo learned counsel who advocated for the appellant, stressed the availability to the appellant of the twin defences of provocation C and self defence. He argued that the fact that everybody agrees that at the time the appellant was shaking with fear, indicates the existence of an intimidating atmosphere and that since on the evidence there was a fight, the appellant must have been acting in self-defence.
On our part, we think with respect that the learned judge's great trust on the D credibility of the boy witness (P.W.4), blinded him to other equally relevant and important considerations. Take the question of the appellant cutting the legs of one of the cows in the Masai herd. The appellant denied doing anything of the sort, but we are satisfied that his denial cannot be true. The boy P.W.4 saw him do it and the afflicted E cow was physically seen and later slaughtered. But this incident should not have been so lightly dismissed by the learned judge. It was a pointer or indicator that all was not well between the "Waswahili" agriculturists and their pastoral Masai neighbours. It cannot be F possible that a man in his right senses, as we think the appellant is, could just get up and start cutting the limbs of his neighbour's animals. There must be something or some occurence which provoked him to act that way. In this case we are told, and this was not seriously challenged, that Masai cattle were a menace to the cultivated and planted G farms in the area. On the day in question, the appellant must have seen these cows arriving to invade his shamba and reacted accordingly. So this was the first provocation. Then he was confronted by the deceased whose approach was far from friendly. This is borne out by the fact that the deceased insisted on meeting the man who had cut the H legs of their cow despite being advised to the contrary, to wait until the position was thoroughly established. On arrival at the appellant's hut, and on seeing them, the appellant was visibly trembling with fear. What then made him tremble in fear? It must have been the menacing approach by the deceased, indicating that he was armed and I ready to use his weapon. We think this explains

the need felt by the appellant to go into his hut to similarly arm himself for a possible A confrontation. In this kind of atmosphere, saturated with aggressiveness on both sides, where one party ends up dead and the other with an injury described by D. Sgt. Saidi Rashidi (P.W.3) as one which must have been occasioned by a sharp weapon, we do not think it was correct and safe to dismiss it as self inflicted to match the prepared B story. At one time during the confrontation, the appellant could have acted in self defence but this cannot apply to the final stabbing with a spear because we are satisfied from the position and nature of the injury that the appellant speared the deceased from the back while pursuing him. He was not then defending himself against anything. The C deceased was no longer aggressive. But having in mind all the background incidents, the continuous almost deliberate trespassing of their farms by the Masai cattle, the aggressive approach by the Masai and the subsequent attack on the appellant which resulted in his being injured on the forehead, convince us that at the time the appellant D speared the deceased, he was still affected by this provocation which is sufficient to reduce the offence to the lesser one of manslaughter. The gentlemen assessors at the trial, were of the opinion that the appellant acted in self defence, but for the reasons we E have given, this defence was not available to the appellant at the time he speared the deceased in hot pursuit. But as indicated he was still under the influence of provocation.
For those reasons we set aside the conviction for murder and the sentence of death. Instead we substitute a conviction for manslaughter and taking all the relevant factors F into account, we sentence the appellant to 10 years imprisonment effective from the 25th April, 1989 the date he was convicted and sentenced in the High Court.
G Order accordingly.

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