SAFLII [Home] [Databases] [WorldLII] [Search] [Feedback]

Tanzania: Court of Appeal

You are here:  SAFLII >> Databases >> Tanzania: Court of Appeal >> 2006 >> [2006] TZCA 62

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Download] [Help]

R v Makanyaga (Criminal Appeal No. 36 of 2002) [2006] TZCA 62 (2 June 2006)

IN THE COURT OF APPEAL OF TANZANIA
AT DAR ES SALAAM

(CORAM:  RAMADHANI, J.A., MUNUO, J.A., And MSOFFE, J.A.)

CRIMINAL APPEAL NO. 36 OF 2002

SILVA MAKANYAGA ……………………………………… APPELLANT
VERSUS
THE REPUBLIC ………………………………………….. RESPONDENT

(Appeal from the decision of the High Court of
Tanzania at Morogoro)

(Mkwawa, J.)
dated the 22nd day of March, 2002
in
Criminal Sessions Case No. 63 of 1998
-----------
J U D G M E N T

2 June 2006

MUNUO, J.A.:

         I concur that the conviction of murder should be reduced to manslaughter, and wish to add the following.
         Since the appellant denied killing the deceased, the defence of provocation would not be available to him. To begin with, the learned trial judge did not address the assessors on the issue of provocation so the assessors did not opine on provocation. A similar omission occurred in the case of Katemi Ndaki versus R (1992) TLR 297. In that case the Court held that ?
The omission to address the assessors on the issue of provocation raises doubts as to whether an ordinary person of the community to which the appellant lived would not have been provoked by the deceasedfs outlandish behaviour. The doubt is resolved in favour of the appellant.
In another case, Shabani Rashid versus Republic (1995) TLR 259, the Court considered when the defence of provocation is available to the accused. It was held that the defence of provocation is available to the appellant only if he admits killing the deceased. The Court observed at Page 261F:
On our part, we think that the defence of provocation to avail the appellant, two factors must be present. First, that a relationship between him and Fatuma still existed, and secondly, he must admit to killing the deceased --------------------------------------------
The second factor was also absent because the appellant denied killing the deceased.
I noted earlier on, that in the case of Matemi Ndaki, cited supra, it was held that the test for provocation is the ordinary person of the community of the accused. The said test is also reflected follow in the case of Yovan versus Uganda (1970) E.A 405 wherein, among other things, the Eastern Africa Court of Appeal, held that ?
Provocation must be judged by the standard of an ordinary person of the community to which the accused belongs. [Chacha Wambura versus R (1953) 20 E.A.C.A. 339 followed].
         The same objective test was applied by the Court in the case of Damian Ferdinand Kiula and Charles versus Republic (1992) TLR 16. In that case the 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.
         In the present case the appellant categorically denied killing the deceased. He implicated a paramour he found in the house saying the latter attacked him, and in the process, the said paramour fatally wounded the deceased. However, the evidence of the appellantfs daughter, PW1 Teresia, clearly established that the killer was the appellant, not the alleged intruder who ran away when the appellant surfaced. PW1fs evidence was corroborated by the testimony of a neighbour of the appellant, PW3 Romanus Liwamba who encountered the appellant brandishing a knife shortly after the murder. Although PW3 greeted the appellant, the latter did not respond. However, since the appellant did not admit the killing, the defence of provocation would not be available to him. Furthermore, there is doubt, from the circumstances of this case, whether the appellant killed his late wife intentionally. There is lingering doubt on the aspect of mens rea which doubt should benefit the appellant . It is for that reason that I agreed that the conviction should be reduced to manslaughter c/s 195 of the Penal Code, Cap 16.

         DATED at DAR ES SALAAM this day of 2006.






JUSTICE OF APPEAL


SAFLII: | Terms of Use | Feedback
URL: http://www.saflii.org/tz/cases/TZCA/2006/62.html