Court name
High Court of Tanzania

Republic vs Siwajibu Kibaya () [1989] TZHC 5 (15 February 1989);

Law report citations
1989 TLR 12 (TZHC)
Media neutral citation
[1989] TZHC 5

Mapigano, J.: This case concerns the death of a man called Athumani Rajabu which took place on 29th day of February, 1988, in the Bagamoyo hospital. The deceased D aged 33 years had sustained an injury in the leg a few hours back, described in the autopsy report as a deep cut wound involving large arteries and veins, and alleged by the prosecution to have been inflicted by a knife. The accused Siwajibu d/o Kibaya is facing a murder charge from the alleged stabbing and she maintained that the charge is a E frame-up.
At the material time the accused was living together with a man called Tabu Mohamed in a quasi matrimonial situation at Magomeni Nianjema in the township of Bagamoyo, and there were issues out of their three-years cohabitation, and the two were anxious to F contract a legal marriage. It is clear from the evidence that the death of Athumani Rajabu had some reference to that cohabitation.
The sequence of events culminating with the death of Athumani started at the homestead of Shabani Mkombozi (PW6), a neighbour of Tabu Mohamed and the deceased. The G incident involved the accused, Tabu and a girl called Rukia Selemani otherwise named Azimio (PW1). The accused was manifestly and poignantly given to understand that Rukia was intruding into the cohabitation.
Rukia was not a resident of Nianjema. She lived at Lugoba and she came to Nianjema H to attend the funeral and the hitima of a near relation at the home of Rashidi Yusuf. During her stay in Nianjema she happened to have struck up an amatory relationship with Tabu Mohamed, the man who was living on the other side of the road. She stands in a near blood relation to the deceased as well I

as to Selemani Bahatisha and Omari Yusuf who gave evidence on the side of the A prosecution as PW2 and PW3, respectively.
On 28/2/88 at around 9 p.m. the accused found Tabu and Rukia in the compound of Shabani Mkombozi. She accused Rukia of having a love affair with Tabu and she scolded Tabu and alternated with Rukia. That was common ground. But the accused B had some interesting details to add. She said that she took the two in the act of tender embrace, Rukia leaning against the wall, Tabu resting his hands on her shoulders, fondling and kissing each other. She brought Tabu back to their house where the C tongue-lashing went on in the verandah. It came to a point, before long, which Tabu could not bear the ordeal any longer and he scurried away and vanished.
The prosecution evidence has depicted the accused as one who had been driven into a raving fury. Soon after returning to her house she fetched a knife and went to the D verandah of Rashid Yusufu, where Rukia was standing, to take vengeance on her. In the state of such fury she hurt Amina Rajabu and missed stabbing Omari Yusufu (PW3), when the two tried to tackle her in order to disarm her, and according to PW3, she declared that she had decided to slay a person.
When the deceased came and made a similar bid, at the same place, the accused E stooped and gave him the fatal blow. The prosecution contention is that she had no excuse whatever to do so. Their contention is also that exhibit P5 is the knife which the accused used to commit the offence, but the defect which obtains in their case is that exhibit P5 was not identified by any of the eye witnesses.
F On the other hand the case for the accused is that she was a victim who was later cast as the aggressor. To rub salt into injury, as the idiom goes, Rukia had the audacity of storming into her yard to heap scorn upon her. Rukia scoffed at her fit of passion, telling her that her vagina was frigid and that was why Tabu was smitten with another woman. G
That was not the end of her torments. Members of the family of Rukia, including the deceased, descended upon the yard and set upon her for "putting Rukia to shame." One seized her by the throat while the others treated her to some kicks and she got injured. H In due course a man came and interceded. The man remonstrated with her attackers and warned them that she might lodge a complaint with the police against them. She denied that she stabbed the deceased. She claimed that she did not know how the deceased came to sustain the injury, pointing out, I think correctly, that there was darkness and that the row had pulled a crowd. I

She claimed that the report that was later laid against her to the police was meant to A forestall her complaint and make her suffer. There is an item in the testimony of constable Boniface (PW5) which tends to confirm that she had been given a beating.
All the assessors have gone by the version of the accused, and, accordingly, they have stated the opinion that she did not commit any offence and that she should be cleared of B the charge.
I fully apprehend that the decision of this case depends largely upon the credibility of the witnesses, and that I have to approach the evidence of PW1, PW2 and PW3 keeping in mind that they are closely related to the deceased. I have come to the conclusion that it C is unsafe to believe their testimony that the accused was responsible for the death of the deceased.
For one thing, the three witnesses have lied when they alleged that the deceased sustained the leg injury at the home of Rashid Yusufu. The evidence of Shabani D Mkombozi, the one witness I consider to be independent and impartial, gave them that lie. The witness stated that he found the deceased writhing in pain at the home of Tabu Mohamed.
For another, the evidence of the two witnesses, i.e. Shabani Mkombozi and Constable E Boniface, also tends to land some credence to the accused's story that Rukia and her relations came to her house to violence.
Furthermore, we have been urged to believe that the accused decided to avenge her wounded feelings on the deceased, when the evidence does not show that there was F nothing to stop her from doing the same on Rukia, to whose misbehaviour her fury had a direct reference. I should say that this is a thing I have found hard to accept.
In the final analysis the evidence does not exclude the possibility of the stab having been inflicted by some one else, or the possibility of the injury having been caused otherwise G e.g. by falling on a sharp object. I find that the information against the accused possibly proceeded on a mere supposition, as the first assessor put it, or on an anticipation and malice, as the accused has claimed. I find the accused not guilty and acquit her. She is to be set free forthwith if she is not otherwise lawfully held. H
Kassanga for the Republic
Mselem for the Accused. I

A Mapigano, J.: The question is whether section 130 (1) of the Evidence Act 1967 is applicable to a couple which have lived together in concubinage for a space of three years, begotten two children, and entertain the desire and hope of going through a ceremony of marriage in the near future.
B The rule laid down by that provision is predicated upon the objection on special grounds, to disturbing marital harmony more than is absolutely necessary, and what many regard as the harshness of compelling a husband to give evidence for the prosecution on the trial of his wife and vice versa.
C We got the rule from England and at paragraph 1331 of the 13th edition of Archbold it is said that the rule only applies where there is value marriage.
It is however appropriate that we approach the matter against the backdrop of the real Tanzania situation, which is to say that the question should be decided upon the D circumstances prevailing in this country. We have to acknowledge that such cohabitation is a notorious affair in Tanzania, that the line between a valid, marriage and concubinage is sometimes obscure, and that often enough such cohabitation takes on the typical features of a durable establishment.
E I am therefore prepared to give section 130 a broad construction and to enlarge its period to enfold a couple like the accused in this case and the prosecution witness Tabu Mohamed. I accordingly sustain Mr. Mselem's submission that Tabu Mohamed is not under duty to testify for the prosecution.
F Order accordingly.

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