KASONGI YABISA v THE REPUBLIC 1995 TLR 28 (CA)

KASONGI YABISA v THE REPUBLIC 1995 TLR 28 (CA)

Court Court of Appeal of Tanzania - Mwanza

Judge Kisanga JJA, Omar JJA and Mnzavas JJA

B CRIMINAL APPEAL NO.160 OF 1993

September 20, 1994

(From the conviction and sentence of the High Court of Tanzania at Mwanza,

Masanche J.)

Flynote

C Criminal law - Murder - Witchcraft - As a defence to murder - when witchcraft

can constitute a defence to a charge of murder

-Headnote

D The appellant was charged with and convicted of the murder of his sister. The

appellant's defence, which was rejected by the trial court, was that he killed the

deceased in the honest belief that she was responsible, by reason of witchcraft, for the

death of his daughter. There was no evidence of sudden shock which might have

deprived the appellant of his self control. The Court of Appeal considered the defence

of witchcraft.

E Held:

(i) Although the appellant killed his sister, the deceased, in the honest

belief that she was responsible, by reason of witchcraft, for the death of his daughter,

since there was no sudden shock which might have deprived the appellant of his selfcontrol

the killing was murder;

(ii) To constitute a defence in a charge of murder the belief in witchcraft

must be founded on some physical and not metaphysical act. F

Case Infomation

Appeal dismissed

Case referred to:

G 1. R.v. Akope s/o Karuon and another [1947] 14 EACA 131

Muhuba, for the appellant

Magoma, for the respondent.

[zJDz]Judgment

H Mnzavas, J.A., delivered the following considered judgment of the court:

The appellant Kasongi Yabisa was sentenced to death by the High Court sitting in

Mwanza (Masanche, J) consequent upon his conviction for the murder of one, Mbalu

d/o Yabisa on or about 19 October 1984 at Malembe Village, within the district of

Kwimba, in Mwanza region. I

1995 TLR p29

MNZAVAS JA

Mr Muhula, learned advocate, appeared for the appellant while Mr Magoma, A

learned Senior State Attorney, appeared for the Republic.

Mr Muhula, learned Counsel for the appellant told the Court:

'I have thoroughly read the record and I have come to the conclusion that I

have very little B ground to argue the appeal in favour of the appellant. I have

informed my client accordingly.'

In reply Mr Magoma, learned Senior State Attorney said: C

'The Republic supports the conviction. It is my view that there was ample

evidence in support of the conviction.'

In this case the following facts were not seriously in dispute:

The appellant and the deceased were brother and sister and they lived in the same

homestead. The appellant was married and had children. The deceased was not and

was childless. D

About a month before the death of the deceased the appellant and his family vacated

the house in which they were living with the deceased and built a separate house

some distance away from deceased homestead. E

The deceased was left to live in the former homestead alone. A week or so after the

appellant had left to live in his new house villagers passing by the house of the

deceased started smelling a foul odor emanating from the deceased's pit-latrine. As

the deceased was nowhere to be seen in the village news reached authorities F and

the local 'Katibu Kata', (PW3) went to appellant's homestead and interrogated him as

to the whereabouts of his sister, the deceased. Initially the appellant told the 'Katibu

Kata' that the deceased had left the village to Geita to look for her sheep. On further

interrogation the appellant confessed to the 'Katibu Kata' G that he killed the

deceased because he honestly believed that she was a witch and that she was

responsible, by reason of witchcraft, for the death of one of his children. The

appellant then led the 'Katibu Kata' and other villagers to deceased's pit-latrine where

he had dumped deceased's body. The matter was reported to the police and a dead

body was removed from the pit and identified as that of the deceased. H

There was also appellant's confession to a justice of the peace PW1 - exhibit P3, in

which the appellant gave a detailed statement as to why he killed the deceased. He

says, inter alia: I

1995 TLR p30

MNZAVAS JA

A 'Marehemu namfahamu, Mbalu Yabisa, alikuwa dada yangu. - Mnamo

mwaka 1982 - mtoto wargu aitwae Luja d/o Kasongi alianguka ndani ya lambo akafa.

Nilienda kwa waganga wa kienyeji baada ya mazishi. Waganga wa kienyeji

walinieleza kwamba binti yangu Luja B alisukumizwa kwenye lambo na akafa.

Mnamo mwaka 1983 - mtoto wangu wa kiume aitwae John Kasoni nilikuta analia

naye akanieleza kuwa ametishiwa na shangazi yake (marehemu). Wakati huo alikuwa

amechomwa na mwiba wa Mkongo (goti) rilimpeleka hospital - mwisho akapona

lakini shangazi yake hakuja kumtazama. Baada ya kuona kuwa anatake kumaliza

watoto wangu nikajua kuwa siku moja ataniua mimi. - Hivye niliona kuwa C

nihame. Baada ya kuhama ndipo niliamua nimuue mimi mwenyewe. Mnamo tarehe

15 October 1984 saa 8 usiku niliondoka kwangu rilipofika kwa marehemu nilifungua

mlango, nilimkuta amelala rilimvuluta toka kitandani nikamsukuma akajipiga kwenye

kibambaza na kuanquka chini ndipo nikaanza kumniga kooni kwa mikono mpaka

akafa. Baada ya kuona D kuwa amekufa nilimvuta nikampeleka ndani ya choo; baada

ya kuutumbukiza ndani ya choo nilichukua jembe nikaufunika kwa udongo -

nilipomaliza nilienda nyumbani kwangu.'

E Doctor's post-mortem report - exhibit P1 was to the effect that the deceased died

of asphyxia. This tallies with appellant's confession that he strangled the deceased to

death.

There can be no doubt in this case that the appellant killed his sister, the deceased, in

the honest belief that she was responsible, by reason of witchcraft, for the death of his

daughter, Luja Kasongi. However, as there was no sudden shock which might have

deprived the appellant of his self-control the killing was murder. F

'To constitute a defence in a charge of murder the belief in witchcraft must be

founded on some physical and not metaphysical act' - See the decision in R v Akope

s/o Karuon and Another (1). G

On the evidence we are satisfied that the learned Trial Judge was right in convicting

the appellant of the offence of murder as charged. The sentence of death is

mandatory.

In the event we dismiss the appeal in its entirety. H

1995 TLR p31

A

[zRPz