Juma Ndege v. Republic Cr appeal no 41 of 2001 (Murder case)

IN THE COURT OF APPEAL OF TANZANIA

AT MWANZA

(CORAM:  SAMATTA, C.J.,  MSOFFE, J.A.,  And  KAJI, J.A.)

CRIMINAL APPEAL NO. 41 OF 2001

BETWEEN

JUMA NDEGE ……………………..……………………………...….. APPELLANT

AND

THE REPUBLIC ……………………………………..…….…..….. RESPONDENT

(Appeal from the conviction of the

High Court of Tanzania at Geita)

(Lyamuya, PRM, Extended Jurisdiction)

dated the 28^th day of May, 2001

in

RM Criminal Sessions Case No. 10 of 2001

----------

JUDGMENT OF THE COURT

MSOFFE, J.A.:

        The appellant was charged with and convicted of the offence of murder contrary to section 196 of the Penal Code and was sentenced to suffer death by hanging.  He was dissatisfied, hence this appeal.  Mr. Matata, learned counsel, advocated for him while Mr. Rwabuhanga, learned State Attorney, appeared and resisted the appeal on behalf of the respondent Republic.

        Juma Ndege, the appellant, was the father of the deceased Shija Juma.  They lived at the village of Nyaruguguna in Geita District, Mwanza Region.  Before his death, the deceased was married to two wives.  The bridewealth in respect of the two wives was paid by the appellant.  At some stage the deceased decided to go and establish his own homestead at Ihushibulela village, also in Geita, where his in-laws lived.  The appellant was annoyed by the deceased’s act of shifting to the village in question.  To him, the deceased’s act was an “insult” more so when he recalled that he paid dowry for the deceased’s two wives.  Further, he expected the deceased to remain in the village and eventually bury him (the appellant) when he dies.

On 13/11/92 the deceased, in the company of his brother PW² Salum Juma, left Ihushibulela and went to Nyaruguguna.  He claimed that he was summoned there by his father, the appellant.  After taking his supper at the appellant’s home, the deceased went to sleep at the house of his younger brother PW³ Selemani Ndege.  In that same night, the appellant went to the house of PW³ while carrying a stick with him.  He found the deceased asleep, and then struck him on the head with the stick he was wielding.  The deceased fainted and never woke up again.  In the meantime, PW³ who had, at the time, retired to his own room to sleep heard “a noise like that of one killing a snake” coming from the room in which the deceased was sleeping.  He quickly went to the room to see what was happening.  There he saw the appellant assaulting the deceased with a stick.  Thereafter, the appellant asked PW³ to assist him in carrying the deceased to a valley in a nearby river.  PW³ obliged.  After reaching the valley, PW³ decided to go back home as he was feeling tired, thereby leaving behind the appellant with the deceased.  The following day i.e. on 14/11/92, the appellant told PW³ that he had buried the deceased’s body near a river bank and that he should keep the information a secret lest he would kill him too.  On 25/1/93 news spread around the village about the deceased’s death.  A number of people were arrested and interrogated, including the appellant.  The appellant admitted killing the deceased and volunteered to show where he had buried the body.  The body was unearthed and found to be in the process of decomposing.  PW¹, Dr. Ramadhani Mahmood Mnenge, examined it and concluded that it was that of a human body.  The appellant was accordingly charged in court where, as stated above, he was convicted and sentenced to death.

        At the trial, there was no dispute that the appellant killed the deceased.  The only issue was whether the appellant killed the deceased with malice aforethought.  The learned trial Principal Resident Magistrate with Extended Jurisdiction found that the appellant killed the deceased with the requisite intention to cause his death.

        The complaint raised in the appeal is that on the basis of the evidence on record malice aforethought was not established.  Mr. Matata urged a number of points before us in support of the complaint.  For instance, he attacked the summing up to assessors which, according to him, gave the impression that the appellant intended to kill the deceased from the time he left his home.  In his view, the summing up wrongly influenced one of the assessors.  He wondered why the stick was not exhibited in court in order to be able to appreciate its actual size.  He also urged that there was no evidence of the amount of force used by the appellant in order to be in a position to infer malice.  In this context, he added, this was an important element in the case because under normal circumstances the force used to kill a human being would be different from the one used in killing a snake.  He further submitted that there was no evidence to show that the deceased suffered grievous harm.  In conclusion, he was of the view that in the absence of evidence to show grievous harm and excessive force the court was left with the appellant’s own version that he had no intention to kill the deceased.

        On his part, Mr. Rwabuhanga was of the view that the appellant killed the deceased with malice aforethought as borne out by the flow of the entire evidence.  In his oral submission, he carried us through all the events leading to the incident in question and then went on to make the following general points.  One, the appellant did not wish to kill the deceased at his home and that was why he followed him at the home of PW³.  Two, if his intention was not to kill the deceased he would have waken him up instead of attacking him while asleep.  Three, the force used was excessive and that was why the deceased fainted and did not wake up again.  Four, all along the appellant was annoyed by the deceased’s act of shifting to another village, and had this factor in mind when killing the deceased.  Five, non-exhibition of the stick used by the appellant was of no consequence because a stick with similar size was produced in court and accepted by the appellant.

        As the determination of the appeal depends on whether malice aforethought was established, we deem it necessary to examine the evidence which was accepted by the Magistrate and relied upon in grounding the conviction.  In brief, the Magistrate was satisfied that the appellant was annoyed by the deceased’s act of abandoning him and shifting to another village; that the appellant summoned the deceased to his home; that the appellant did not wish to kill the deceased at his home, thereby following and killing him at the home of PW³; that he assaulted the deceased while asleep; and that judging by the size of the stick he intended to cause grievous bodily harm.  In conclusion, the Magistrate was of the view that the above facts show that the appellant killed with malice aforethought.

        In determining the mental condition of an accused person at the time of the commission of the offence his/her conduct prior to and after the offence is relevant.  In this case, the mental condition of the appellant before he attacked the deceased is reflected from the following pieces of evidence.  There was no dispute that he was annoyed by the deceased’s act of shifting to another village.  There was also no dispute that he summoned the deceased to his home on the day prior to the night of incident.  It was also undisputed that he followed the deceased to PW³’s home, where he found him asleep, and then struck him on the head with a stick.  We may emphasize here that a head is a vulnerable part of the human body.  Having done all that, he took the body to the valley where he buried it.  As if that was not enough, when he met PW³ he told him not to reveal information of the death to anyone lest he would kill him.  Furthermore, besides PW³ he did not disclose the death to anyone until after about four months later when he was arrested and interrogated.

        The above conduct on the part of the appellant before and after attacking the deceased is, in our view, indicative of the fact that he had intended the consequences of his acts.

        As was observed by this Court in the case of Elias Sefu v. R (1984) TLR 244, existence of malice aforethought could also be found from the nature of the weapon used and the location of the injury sustained.  In the instant case, the use of the stick on a vulnerable part of the body was indicative of malice aforethought.  We may add that even the force used was excessive as to infer malice.  The evidence of PW³ was uncontradicted that the noise coming from the attack was similar to that of a person killing a snake.  The extent of that noise was, in our view, an indication that excessive force was used in attacking the deceased.  Excessive force may also be inferred from the fact that the deceased did not wake up after the attack.  If the attack was not excessive, hopefully, the deceased would have waken up.

        We are, therefore, satisfied that the trial Principal Resident Magistrate with Extended Jurisdiction was justified in her finding that there was irresistible inference that the appellant intended to cause the death of the deceased with malice aforethought in terms of section 200 of the Penal Code.  In law, a person is taken to intend the natural consequences of his act.  In the instant case, the evidence was such that like the trial Magistrate, we are in agreement with Mr. Rwabuhanga that in attacking the deceased with a stick, the appellant intended to cause his death.  The conviction was therefore properly grounded.

        For the above reasons, the appeal is dismissed in its entirety.

        DATED at DAR ES SALAAM this  9^th  day of   March, 2005.

B.A. SAMATTA

CHIEF JUSTICE

J.H. MSOFFE

JUSTICE OF APPEAL

S.N. KAJI

JUSTICE OF APPEAL

        I certify that this is a true copy of the original.

( S.M. RUMANYIKA )

DEPUTY REGISTRAR

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