Dealing with these grounds together, Mr. Rweyongeza contended that, in this case,
it is crucial to determine at what stage did the appellant form the intention to kill. In his view, the appellant did not form the
intention to kill the deceased when he was released from custody and started tracking the deceased. The learned counsel contended
that, the deceasedfs act of reporting the appellant twice to the police and the loss of the appellantfs properties made
the appellant boil with anger. The appellant started tracking the deceased. But in tracking the deceased it was not for the purpose
of killing her but for trying to persuade her to go back home, contended the learned counsel. The learned counsel further contended
that, in tracking the deceased, the appellant found her with a man. This provoked the appellant but he controlled his anger expecting
that the deceased would probably agree to go back home, contended the learned counsel. The learned counsel further contended that,
when the deceased refused to go back home, the refusal sparked off the appellantfs anger whereby the appellant lost self control
and killed the deceased. In the circumstances, it is the learned counselfs submission that, the series of events from when
the deceased reported the appellant to the police twice, finding his properties and children missing and finding the deceased with
a man, made the appellant gboil with angerh, but not to the extent of forming an intention to kill the deceased. It was
the deceasedfs refusal to go back home which sparked off the appellantfs boiling anger whereby the appellant was provoked
beyond self control and caused the death of the deceased, while the appellant was still in the heat of passion. In that respect,
it is the learned counselfs submission that the appellant should have been found guilty of the lesser offence of manslaughter.
On her part, Mrs. Kabisa, learned State Attorney for the respondent Republic, contended
that, the totality of the evidence on record suggests that the appellant formed the intention to kill the deceased when he was released
from custody and found his properties and his children missing, whereby he started tracking the deceased in order to kill her. In
tracking her, he found her at a kiosk with a man, but did not react. He only reacted later when the deceased refused to go back home,
and by then the man had already left. In that respect, it is the learned State Attorneyfs submission that, the appellantfs
defence of provocation should not be entertained because, when the appellant killed the deceased, it was not in the heat of passion
as the man had already left.
As observed earlier, the appellant does not dispute killing the deceased. What he
is disputing is the accusation that he killed her intentionally.
The crux of the matter, therefore, is whether at the time of the killing, the appellant
had been provoked within the meaning provided under the law.
Section 201 of the Penal Code Cap 16 provides the circumstances under which a person
is considered to have killed another under provocation. It says:-
201: When a person who unlawfully kills another under circumstances which, but for the provisions of this section would constitute
murder, does the act which causes death in the heat of passion caused by sudden provocation as hereinafter defined, and before there
is time for his passion to cool, he is guilty of manslaughter only.
Section 202 of the Penal Code Cap 16 defines the term gprovocationh.
It reads as follows:-
202: The term gprovocationh means and includes, except as hereinafter stated, any wrongful act or assault of such a nature
as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another person who is under his immediate
case, or to whom he stands in a conjugal, parental, filial or fraternal relation, or in the relation of master or servant, to deprive
him of the power of self control and to induce him to commit an assault of the kind which the person charged committed upon the person
by whom the act or insult is done or offered.
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For the purpose of this section the expression an gordinary personh shall mean an ordinary person of the community to
which the accused belongs.
In the instant case, in determining whether the appellantfs defence of provocation
could properly be entertained, we have carefully considered the evidence on record, together with the circumstances surrounding the
case. The events which occurred before the incident, and the appellantfs conduct before and after the event are also relevant.
In that regard, we have carefully considered the events which occurred before the incident, and the appellantfs conduct before
and after the event.
It is in evidence that, before the event, the deceased had reported the appellant
twice to Buguruni Police Station for unlawfully assaulting her, and for threatening to kill her. In our considered view, reporting
such acts was neither unlawful nor provocative.
If anything, those acts portrayed the strained relationship between the appellant and the deceased before the event.
It is also in the appellantfs claim that, when he was released from custody and found his properties and children missing, and
his house unroofed, he got angry and considered the deceased to have been the cause. In our considered view, this cannot justify
the defence of provocation in the instant case, because the appellant did not kill the deceased at that time but some days later
when passion had already cooled down.
We do not accept the appellantfs defence that he found the deceased with a man at a kiosk, and that he got angry, but he controlled
his anger, expecting that the deceased would probably agree to go with him after the man had left. In our considered view, this cannot
justify the defence of provocation in the instant case because, as stated by the appellant himself, he controlled his anger and did
not react at that time.
In his defence the appellant also insisted that the deceased and the man left together
and that he followed them and found them embracing, but the man ran away. He requested the deceased to go home with him but she refused.
This provoked him to an extent of losing self control whereby he killed the deceased. In our considered view, this defence is lame.
In the caution statement Exh. P3, and the Extra Judicial statement Exh. P4, the appellant did not say that he found the deceased and
the man embrace. Had this important event happened, the appellant would not have failed to say so in the caution statement and the
Extra Judicial Statement. This was merely an afterthought in an attempt to give weight to his defence of provocation. In our view,
this act of embrace did not take place and was properly rejected by the learned trial judge.
Furthermore, the refusal by the deceased to go home with the appellant without uttering
insults or the like, in our considered view, was not. In Damian Ferdinand Kiula @ Charles v. R (1992) TLR 16 where the appellant killed his wife when she told him that she was leaving him on account of his drunkenness and quarrelsome behaviour,
this Court held as follows:-
i)
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.
ii)
The words and actions of the deceased did not amount to legal provocation.
iii)
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In the instant case, we are of the firm view that, the deceasedfs refusal to
go with the appellant did not amount to legal provocation.
We have also carefully considered the appellantfs conduct after the event.
It is in evidence that, after strangling the deceased to death, the appellant undressed the deceased and buried the body in a sand
quarry. He took the clothes and dumped them into the toilet. In our view, all this was an attempt to avoid detection which is unusual
for a person who has killed another person unintentionally and in the heat of passion.
For the reasons stated, we are of the firm view that the defence of provocation was properly rejected; it was not tenable. This appeal
lacks merit. This appeal lacks merit.
In the event, we dismiss the appeal in its entirety.
DATED at DAR ES SALAAM this 17th day of November, 2005.
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