Third, PW1 did not tell the village chairman PHILLEMON MERKIOLI (PW2) everything
she had seen and heard. For example he said, she did not tell him about the conversation she heard between the appellant and the
deceased. She also did not tell him that she had assisted the appellant to dress up the deceased and to throw the body in a nearby
path, or that she had assisted the appellant in burying some of the deceasedfs clothes. Mr. Matata urged that had the learned
trial judge considered all these he would not have relied heavily on her evidence in convicting the appellant, and that he would
have accepted the appellantfs defence of provocation.
Mr. Matata further submitted that the appellant was provoked by the deceasedfs
insult for telling her to suck his male organ. He said that those words were very provocative especially to the appellant who was
a village old woman aged 53 years. He cited the case of DAMIAN FERDINAND KIULA & CHARLES (1992) TLR 16. In that case this Court
held that for the defence of provocation to stick, it must pass the objective test of whether an ordinary man in the community to
which the accused belongs would have been provoked in the circumstances.
Mr. Matata further argued that there was also another provocative incident. He stated
that some days before the killing of the deceased the appellant had found the deceased committing adultery with a woman. He said
that on the fateful day when the deceased called her to suck his male organ this rekindled her previous anger over the adultery.
Mr. Matata argued that adultery is a very provocative act capable of reducing the offence of murder to manslaughter. He cited the
case of BENJAMIN MWASI V R (1992) ELR 85.
Mr. Matata further submitted that the killing of the deceased was not premeditated
and that the learned judge erred in refusing to accept the appellantfs defence of provocation for no reason at all. He said
that the appellant had no duty to prove provocation. He cited a persuasive holding in the case of KENGA V R (1991) 1 EA 145. In that
case the Court of Appeal of Kenya sitting at Mombasa held that the accused does not have to prove provocation, but only to raise
a reasonable doubt as to its existence. Mr. Matata urged that there was no evidence to ground a conviction of murder apart from that
of PW1 who was an unreliable witness. It was his submission that had the learned trial judge considered all these factors he would
have come to the conclusion that the appellant was provoked, and would have found her guilty of manslaughter.
On the other hand Mr. Feleshi learned State Attorney submitted that the learned trial judge fully considered the veracity of PW1 and
found her to be a credible witness. She was not an accomplice. She only participated in assisting the appellant to dress up the deceased
and to throw away the body under threat by the appellant herself who was her mother. Mr. Feleshi further stated that PW1 had no interest
or purpose to serve because she had not participated in killing the deceased.
As far as provocation is concerned, the learned State Attorney conceded that the words gcome and suck my male organh are
very provocative indeed. But that such words were never uttered by the deceased, otherwise PW1 would have heard them because she
was awake and was the one who opened the door for the deceased. She did not hear them. Mr. Feleshi further argued that there was
no evidence that the appellant had previously found the deceased committing adultery. In that respect it was his view that the case
of Benjamin (Supra) is inapplicable in this case.
We have carefully considered Mr. Matatafs submission as to why he believes
that PW1 was not a reliable witness, together with the appellantfs defence of provocation. We have equally carefully considered
the learned State Attorneyfs reply thereat. With respect to the learned advocate, we are unable to agree with him that PW1
was an unreliable witness for the following reasons:-
First, the appellant and the deceased were her parents. By the death of the deceased
PW1 was deprived of one of her parents. She was left with only one parent, the appellant, who could provide her with parental love.
By all means and in ordinary life she would definitely not wish to lose both parents. It is highly unlikely that she would be willing
to give incriminating evidence against her mother, who would be hanged thereby losing both parents. But with all this dilemma lingering
in her mind she decided to tell the truth. She told the truth.
Second, PW1 told the Village Chairman Phillemon (PW2) everything in respect of the
whole event. This was said by Phillemon (PW2) himself in his examination-in-chief.
Third, PW1 did not participate criminally in the killing of the deceased either as
a principal or an accessory before or after the fact. She had simply been ordered through threat by her mother, the appellant, to
assist her to dress the deceased and to throw the body in a nearby path. Under the circumstances we are satisfied that she was not
an accomplice. In a persuasive case of DAVIES V DPP (1954) 1 ALL E.R. 507 at page 514 the House of Lords defined the word gaccompliceh
as follows:-
gThe definition of the term gaccompliceh covers participe criminis in respect of the actual crime charged, whether as principals
or as accessories before or after the facth.
This view was adopted by the Court of Appeal for Eastern Africa in the case of JETHWA
& ANOTHER V R (1969) EA 459.. We adopt the same view.
The learned trial judge who saw PW1 giving evidence was satisfied she was truthful.
We have found nothing to fault him on this. In the case of ALI ABDALLAH RAJABU V SAADA ABDALLAH RAJABU & OTHERS (1994) TLR 132
this Court held, inter alia gthat where the decision of a case is wholly based on the credibility of the witness, then it is the trial court which is better
placed to assess their credibility than an appellate Court which merely reads the transcript of the recordh. Also in the case
of OMARI AHMED V R (1983) TLR 52 this Court held, inter alia, gthat the trial courtfs finding as to credibility of witnesses is usually binding on an appeal Court unless there are
circumstances on the record which call for a reassessment of their credibilityh. In the instant case there are no such circumstances.
We now turn to Mr. Matatafs second complaint, that is, provocation. Indeed the words gcome and suck my male organh
are very provocative.
But in this case there is nothing indicating that such words were ever uttered by
the deceased. Had they been uttered by the deceased, PW1 would have heard them because she was in the same house. She was not asleep
because she was the one who had just opened the door for the deceased, and after a short time she heard rattling noises whereby she
asked some questions followed by the actual killing of the deceased by the appellant, and a threatening order to assist the appellant
to dress the deceased and to remove the body. It is true an accused person does not have to prove provocation but only to raise a
reasonable doubt as to its existence as held in the KENGA case (Supra). But in the instant case there is no doubt whatsoever in our
minds that the alleged provocative words were never uttered by the deceased. They never existed. Therefore the cases of DAMIAN and
KENGA cited by Mr. Matata learned advocate for the appellant are inapplicable in this case.
Mr. Matata complained also about an act of adultery alleged to have been committed
by the deceased some days prior to the killing. We hasten to say that there was no evidence about it. Even if it is accepted that
such an act took place, that would not afford the appellant the defence of provocation because the killing occurred some days later
when the appellant was no longer in the heat of passion as required by Section 201 of the Penal Code, Cap 16. Therefore the case
of BENJAMIN cited by the learned advocate is inapplicable in this case.
In the event, and for the reasons stated above we dismiss the appeal in its entirety.
DATED at DAR ES SALAAM this 15th day of July, 2004.
.RTF of original document