CLAY LAWAY v REPUBLIC 1992 TLR 72 (CA)

 

CLAY LAWAY v REPUBLIC 1992 TLR 72 (CA)

Court Court of Appeal of Tanzania - Arusha

Judge Omar JJA, Ramadhani JJA, Mnzavas JJA

May 13 1992 B

Flynote

Criminal law - Murder - Self-defence - Whether killing on suspicion one has been

poisoned constitutes self defence.

-Headnote

The appellant killed a person. In his defence he said he killed because the deceased

had C given him poisoned milk. The High Court convicted him of murder. On

appeal the Court considered whether the plea of self-defence was available to the

appellant.

Held: The plea of self-defence cannot by any stretch of imagination be applicable to

D the appellant. Was the appellant by hacking the deceased defending himself from

further poisoning?

Case Information

Appeal dismissed.

Ojare, for the appellant. E

Lyimo, for the respondent.

[zJDz]Judgment

Omar, Ramadhani and Mnzavas, JJ.A.: The appellant Clay Laway was charged with

and convicted of the offence of murder contrary to section 196 of the Penal Code. F

It is the prosecution evidence that the appellant was on 19/9/89 at about 6 p.m. in the

house of his step brother called Akweso. Members of the family who had just

returned from the fields where they had been cultivating seeds and onions, and others

like Akweso's two daughters Martha and Christina who had been to the Cattle

Market, G were all in this house. So in the presence of the members of the family,

the appellant who only had an hour previously had been with them looking at

photographs of the family members, and had gone out of the house and returned,

suddenly started attacking Suzana, the deceased who was the wife of Akweso. He

struck her with a panga on the H back of her neck causing her instant death. None

of the prosecution witnesses was able to say what the cause of the attack was. The two

children of the deceased P.W.2 and P.W.3 had testified to being present in their

home when their mother was killed. They said that there had been no quarrel at any

time that day between the appellant and I any member of the family.

1992 TLR p73

OMAR JJA, RAMADHANI JJA, MNZAVAS JJA

In his defence the appellant stated thus: A

At 5 p.m. on 19/9/89 I came from working in my shamba. I went to the home

of deceased. She was at home with her young children. She gave me milk which was

poisoned. I got drunk and I killed her while in a state of dizziness and confusion. I

took a panga which was B in the house of deceased and I attacked deceased, killing

her ... I used to drink but I suffered stomachache and I stopped. After killing deceased

I ran away because I became frightened.

Appellant tendered Hospital Discharge Certificate as Exhibit D.1 which showed that

C he was admitted in hospital on 22/9/89 and discharged three days later on 25/9/89.

Going through the evidence we find that none of the prosecution witnesses had

mentioned about seeing the appellant being given milk by the deceased on that D

material day. The learned trial judge was of the view that if at all appellant was found

suffering from food poisoning then the poison must have been taken by him after he

had attacked the deceased and had run away from the scene of crime. E

Mr. Ojare, the learned counsel for the appellant considered whether it is credible or

supportable that appellant was given poisoned milk. He considered the time that

witnesses gave of the family members' return from their respective farms P.W.2 said 7

p.m., P.W.1 said 6 p.m., the appellant said 5 p.m. So Mr. Ojare concluded that there F

was a sufficient timegap for the deceased to administer the poisoned milk. The

solitary ground of appeal canvassed by the learned defence counsel is that he killed in

self-defence but Mrs. Lyimo, learned state attorney for the prosecution said that this

was not a case of self-defence or of provocation but of mere revenge and she prayed

G for the appeal to be dismissed.

We are of the view that although there was a hospital discharge certificate showing

that he was hospitalised for three days on the doctor's diagnosis of poisoning, there is

no sufficient evidence from either side to this case to show how this poison got into

the H appellant's body and at what time in relation to the event. No doctor was

called to clarify on this diagnosis which was on the discharge certificate. Furthermore

the plea of self-defence cannot by any stretch of imagination be applicable to him.

Was the appellant by hacking the deceased defending himself from further poisoning?

The I appellant in his defence stated that he felt dizzy and confused after

1992 TLR p74

drinking poisoned milk and without knowing what he was doing he took the panga

A which was in the house of the deceased and cut her on the neck. We cannot in

these circumstances find any of the known defences available to the appellant. The

story of poisoned milk is still not convincing nor does it raise any doubt in the

prosecution case. B If there are causes to this killing the members of the family are

not willing to divulge them, then the matter rests there, that the killing was senseless

and motiveless. We therefore find that the appellant was properly convicted.

C Appeal dismissed.

1992 TLR p74

D