Court name
High Court of Tanzania

Republic vs Ally Said Kiubatyo () [1990] TZHC 12 (01 September 1990);

Law report citations
1990 TLR 137 (TZHC)
Media neutral citation
[1990] TZHC 12

Kazimoto, J.: The accused Ally Said Kiubatyo stands charged with murder o/s 196 of the Penal Code. The Court I has been informed that on or about the 13th day of October, 1989 at Chapita Village

A Mingumbi within the District of Kilwa, in Lindi Region the accused murdered Zena d/o Mshamu Kimbokota The accused has pleaded not guilty
A preliminary hearing was held in accordance with the accelerated Trial and Disposal of Cases Rules 1988; B whereby the prosecution stated in detail all the facts of the case. The defence admitted only one fact that the deceased has died.
A full trial was then held and what was obvious at the preliminary hearing the accused had grudgingly to admit that Zena d/o Kimbokota was his wife; that he killed her, that after killing her he dumped her body into an abandoned C latrine and buried her and made a false report to his own father, and his mother-in-law, that the accused had to report at the authorities as he had not done so while PW1, and the relatives of the deceased went to the house of the accused, combed the surrounding area; in the shrubs, forest, valleys all in vain. Then while at the house of the D accused PW2 saw a place which had been covered with fresh sand and flies were flocking in and out. PW2 called search party, they dug out the sand and saw a human body cuddled in a kaniki and kitenge cloth. The body was identified to be that of the deceased. When the accused was asked he appeared apprehensive of and PW1 ordered E the arrest of his son and tied him with a rope and was taken into custody. The evidence of PW2 is in all fours with that of PW1 and I do not intend to repeat it.
PW1 has informed the court that since their marriage he has never received any complaint either from the accused or deceased about misunderstandings in their matrimonial life and the only complaint he got came from PW2 that F the accused had borrowed money and did not repay it. In his evidence the father of the accused (PW1) informed the court that on 15.10.1989 the accused reported to him that his wife had disappeared from home and that he did not know where she had gone. He further informed the court that the accused told him that the deceased had left all G her clothes and took with her a piece of kaniki and a kitenge and that deceased disappeared for two days. He advised the accused to report to the parents of the deceased immediately but the accused refused saying that he was tired. He informed the court further that on 16.10.89 the accused went to report to the deceased's parents that H the deceased had not been seen at home since 13.10.89 and was informed that she had not be seen at their home and that since there was only one person they would go to the accused house on the following day. On 17.10.89 PW2 together with the brothers and sisters of the deceased went to PW 1 and after consultations in the presence of I the accused it was decided the accused should go to report to the

relevant authorities. In the meantime a manhunt was mounted in the valleys, shrubs, bushes and forests around the A area surrounding when she went to answer a call of nature, which arose her suspicion. It was a disused latrine freshly covered with sand and flies flocking in and out. She prickled a stick and called in other members of the search party, undug the sail and saw a human body which was that of accused's wife. The accused was arrested. B He first denied knowledge and when taken to a justice of the peace he made a free, voluntary and full confession that he killed the deceased. The confession had been admitted in evidence. In his confession he stated that he returned at night to his house and did not see her. He only saw the child alone sleeping. As he went out to check he C heard a person running away and gave chase but failed to get him. When he returned inside he saw the deceased sitting on the bed and asked her who the person was he saw running. The deceased was alleged to have replied "sijui umemkimbiza na umeshindwa mwenyewe kumkamata sasa unamwuliza nani na mtu mwenyewe D umemwona?" - freely translated in means "I do not know. You have seen the person and failed to arrest him. Whom do you ask then?" The accused stated in his confession that he lost his temper and took the billhook which was nearby and hit the deceased intending to warn her and then realized that he cut the deceased on the forehead. He panicked when he came to know that he had killed the deceased and dumped the body into the latrine. E
The accused gave evidence on oath. He adopted his extrajudicial statement. His evidence does not differ in anyway with the confession.
The Republic have contended in their submission that there was no evidence of adultery. All that has been shown F was a suspicion that deceased had committed adultery. It was submitted that hearing a person run away does not show adultery.
The Republic also submitted that the words which deceased was alleged to have uttered were ordinary words and G could not have provoked the accused into killing.
The Republic also submitted that the accused relies on insanity as a defence but contended that the accused was not insane.
In reply learned defence counsel conceded that the accused has a weak defence in insanity but he submitted that the H accused had been provoked and relied on Manyeri s/o Mukonko v R. (1954) EACA 274. He further contended that the words which deceased had spoken could have provoked the accused. He stated that the accused has stated that deceased used to commit adultery and suspected that she had done so. I

A In my summing-up note I stated to the assessors the defence of provocation exists where the following are established that the accused killed the deceased in the heat of passion, that the state of passion was caused by provocation of a sudden kind, provocation must consist of a wrongful act or insult which if done or directed to an B ordinary person he would have been deprived of his power of self-control.
Two gentlemen assessors found that the accused intended to kill the deceased. The first gentleman assessor is of the opinion that there was no evidence of adultery. He also stated that accused has known that deceased had committed adultery on three previous occasions. The third gentleman assessor concurred with the first assessor and C took into account the weapon used and the circumstance of the whole case. The second gentleman assessor stated that the killing was not intentional and gave his reason as to why he thinks that the defence of provocation stands.
D It is conceded that the accused did not see the alleged person let alone seeing the deceased committing adultery. He only suspected the deceased of having committed adultery. The issue is whether suspicion of adultery can afford a defence of provocation in murder cases . In the case cited by learned defence counsel of Manyeri s/o Mukonko E (supra) while the deceased and her husband the appellant had retired to bed a man came to the door of the hut they had been living in and spoke to the deceased, who told the man that she did not know him. The man asked what she meant and then the man stated that he had been living with the deceased. The appellant got out and F chased the man who ran away. The appellant got angry and speared the wife. It was held that the sudden discovery of a wife's adultery even if not finding her in fragrante delicto may in law be sufficient provocation to reduce an international killing to manslaughter. But this case can be distinguished on the fact from the present one. In Munkonko's case the paramour went to the door of the appellant and spoke to the deceased. The appellant heard G the man. Secondly the appellant heard the deceased talk to the man who being told by the deceased that she did not know him, the man stated that he had been living together with her. In the present case the accused did not see H the suspected paramour nor was there any conversation between the deceased and the alleged paramour. The only thing in common is the fact that in both cases the alleged paramour ran away.
I have called in aid the cases of Yokoyadi Lakora s/o Omari v.R [1960] EA 323 and R. v Ernest Mkumba I JIMILI [1979] LRT no. 27. The case deals with previous knowledge of adultery of a wife with a paramour. In both cases it was held that prior knowledge by a husband

of the adultery of his wife with a paramour does not bar him from raising the plea of provocation if the killing was A done upon finding the wife and her paramour in the act of adultery. In the present case the accused alleges that the deceased had committed adultery in similar circumstances three times but he had never seen the deceased committing adultery. Accordingly the principles laid down in the cases of Yokayadi and Ernest (above cited) B cannot be applied to this case.
I have considered the alleged statement by the deceased quoted above to see whether it could not have provoked the accused. Looking at it in a superficial manner the statement is innocent. But considered in the circumstances in C which the statement was uttered could have provoked the accused. The accused had come from husking coconuts. He knocked at the door expecting the deceased to open the door for him. Then he pushed the door open only to find his child sleeping alone in bed. The deceased was nowhere to be seen. The accused went out and as he was D searching around he heard foot steps of a person running. He chased the person and failed. He did not know who the person was. He turned inside and saw the wife sitting on bed. The accused asked who was the person he saw running. Instead of being civil she uttered the words she was alleged to have said. The reply could have infuriated the accused, as it actually happened and took the billhook and caused the deceased's death. In my view those E words uttered to an ordinary man in the circumstances which accused had would have provoked him to assault the deceased. In his confession the accused stated the he was seized with sudden passion and assaulted the deceased. It is true that he used a lethal weapon but it is not suggested that the accused had time to look for it. In his evidence F and confession made to the justice of the peace the accused appeared to have the billhook when he returned from his safari. I agree with the defence counsel that the statement alleged to have been uttered by the deceased was provocative in law and as the accused killed the deceased as a result of such provocation the killing was not G intentional. I concur with the second gentleman assessor that the killing was not intentional.
The accused was not insane. The depositions do not state that the accused had once suffered insanity. As the burden to establish the issue of insanity is on the defence on a balance of probability it was properly withdrawn as H being weak. In any case it does not raise any doubt in the prosecution case.
A lot has been said about the conduct of the accused after killing the deceased. I agree the conduct of the accused cannot be described in any way humane. The is far from saying that he was not provoked. I

A For the reasons I have given above I am satisfied that the prosecution have failed to establish that the accused killed the deceased intentionally. I am satisfied that the murder against the accused had not been proved. Consequently I acquit the accused of murder c/s 196 of the Penal Code but convict him of manslaughter o/s 195 of the Penal code.
B Order accordingly.

C
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