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Kauhanda v The State (Criminal Appeal No. 9 of 1990) [1990] BWCA 13 (4 December 1990)

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IN THE COURT OF APPEAL OF THE REPUBLIC OF BOTSWANA
Criminal Appeal No. 9 of 1990
In the matter between:
MESKIA ACE KAUHANDA      Appellant
vs
THE STATE        Respondent
Appellant in Person
Mr. S. Afful for the State
JUDGMENT
Coram; A. N. E. Amissah, JP. B. A. Doyle, JA. W. H. R. Schreiner, JA.
DOYLE, JA,
The Appellant pleaded guilty to manslaughter and was
sentenced to four years imprisonment to date from his
arrest. He now appeals against sentence. Counsel for the
Appellant was unable to submit any argument in favour of the
appeal.
The facts briefly were that the appellant and the deceased
woman, Phoinyana Phofu, were tenants in the same yard. On
7th August 1989 the appellant arrived home and sent a friend,
Ofisi, to fetch some eggs from a hen run in the yard. The
run belonged to a woman, Mmalerato, but appellant's hens used

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sometimes to lay eggs there. Phoinyana who suffered from
pulmonary tuberculosis was basking in the sun when Ofisi came.
Phoinyana then started accusing appellant of stealing eggs
belonging to Mmalerato. Appellant became angry and protested
at Phoinyana making such an allegation. Phoinyana persisted
with similar allegations and told appellant that he could
beat her if he wished. He and Phoinyana exchanged insults.
Phoinyana then got up and went into her house where she lay
down on a blanket. She continued her allegations from there.     '
i Appellant came to the door, shook it and told Phoinyana to
stop. She did not. Appellant then went into the house and
kicked her once in the chest. He then left. Later that day
Phoinyana died.
A post-morterm examination showed that the 2nd to the
5th ribs were fractured and that death was due to pulmonary
tuberculosis. The pathologist gave evidence and said that
i a blow with moderate force could cause the fractures. He
said the blow precipitated the death by impeding the supply      \
of oxygen needed by Phoinyana. Without the blow Phoinyana        |
would have lived at least two months more.       j
The taking of a life is of course always a serious matter. j

i
Though it is likely that appellant knew that Phoinyana was
ill, there is no evidence that he knew that she was really
in a sense a dying woman. Ordinarily a blow such as he delivered •
would not have caused death. There was an element of bad         :
luck from the point of view of the Appellant. He had been
goarded considerably and in a fit of temper, he kicked   ;
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m
her. Appellant had a number of mostly minor convictions for offence involving violence to the person. The most recent was a fine in 1986 of P20 for assault occasioning actual bodily harm.
Taking all the circumstances into account we consider that the sentence does induce a sense of shock and that it is unreasonably harsh. We therefore allow the appeal and reduce the sentence to a period of two years imprisonment from date of arrest.

DELIVERED IN OPEN COURT IN LOBATSE 4th
DAY OF NOVEMBER, 1990
B. A. DOYLE Judge of Appeal


I agree:
Judge of Appeal


I agree:

W. H. SCHREINER Judge of Appeal

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