MWITA NYAMHANGA v REPUBLIC 1992 TLR 118 (CA)

 

MWITA NYAMHANGA v REPUBLIC 1992 TLR 118 (CA)

Court Court of Appeal of Tanzania - Mwanza

Judge Nylali CJ, Ramadhani JA, Mapigano Ag. JA

29 May 1992

Flynote

Criminal law - Murder - Appellant had inflicted grievous cut wound - Cause of death

was G respiratory failure caused by tetanus - Whether the wound caused the

tetanus.

Criminal Practice and Procedure - Charges - Murder - Date of charge - Whether date

or unlawful act or death.

-Headnote

The appellant, using a panga, inflicted a cut wound on a person who later died H

because of tetanus. He was convicted of murder by the High Court. On appeal he

challenged the conviction arguing that there was no evidence to connect the cut

wound and tetanus which ultimately caused the death of the deceased. The Court

Appeal I also considered the proper way of framing charges in case of murder.

1992 TLR p119

RAMADHANI JA, NYALALI CJ, MAPIGANO Ag, JA

Held: (i) We cannot say beyond reasonable doubt that the wound by the appellant A

caused tetanus. There is evidence that the deceased had fever before the attack by the

appellant;

(ii) the date of the charge is that of the unlawful act and not that of the death.

B

Case Information

Appeal allowed.

Rugarabamu, for the appellant.

Malamsha, for the respondent. C

[zJDz]Judgment

Ramadhani, J.A., Nyalali, C.J. and Mapigano, Ag. J.A.: It has never been in dispute

both in the High Court of Tanzania at Musoma (Masanche, J.) and before us that the

deceased, Sokoture s/o Chacha, died because of tetanus and that the appellant, Mwita

Nyamkanga, had on 14/4/86 inflicted a grievous cut wound on the deceased D by

means of a panga. Equally it is settled that the deceased met his untimely death on

25/4/86, that is, some eleven days after the wounding.

The point of serious contention, which has brought the appellant to this Court, as it

was allegiantly canvassed for him by Mr. Rugarabamu, learned advocate, was whether

E tetanus was brought about by the wound inflicted by the appellant or that death

was hastened by that wound.

The post-mortem report (Exh. P.1) merely said that the cause of death was

"respiratory F failure caused by tetanus". Mr. Rugarabamu said that the report did

not give the cause of tetanus and the doctor who performed the examination was not

called to testify. The learned Counsel referred us to two medical treatise: A Text-book

of Bacteriology by Fair brother and Tylor at page 367 and "Lecture Notes on

Pathology" by Thomson and G Cotton at page 30. Both of these authorities state that

the incubation period for tetanus is a minimum of eight days. Mr. Rugarabamu

pointed out that the eleven days which elapsed between the wounding by the

appellant and the death of the deceased is within the span of time of incubation if

tetanus had resulted from that wound. However, H he argued that the two extracts

he had produced do not say what is the maximum incubation period nor do they

indicate after how many days from the time of injury or when symptoms have

appeared is death likely to result. So, Mr. Rugarabamu submitted that there is no

evidence that the wound inflicted by the appellant caused that I

1992 TLR p120

RAMADHANI JA, NYALALI CJ, MAPIGANO Ag, JA

tetanus or that that wound hastened the death of the deceased in any way. A

For the respondent/Republic was Mr. Malamsha, learned State Attorney, who

conceded the omission pointed out by Mr. Rugarabamu but made a fervent prayer

that we exercise our powers under Section 4 (2) of the Appellate Jurisdiction Act,

1979 B and do what the High Court could have done, that is call the author of the

post-mortem report to testify or order the High Court to hear him on that point.

Mr. Rugarabamu objected to that prayer but conceded that this Court could do that C

suo moto. Alternatively, Mr. Rugarabamu agreed that the appellant could be found

guilty of causing grievous harm c/s 225 of the Penal Code.

We agree with Mr. Rugarabamu that we cannot say beyond reasonable doubt that the

wound by the appellant caused tetanus. There is evidence that the deceased had fever

D before the attack by the appellant. We do not know what caused that fever.

We toyed with the idea of taking additional evidence but decided against it. We are a

shade unsure of its usefulness. We do not know whether the medical officer who

performed the examination could, if recalled, be able to know when the deceased E

showed the symptoms of tetanus and give his opinion as to whether that tetanus

could or could not have been caused by the wound inflicted by the appellant. This is

taking into account that it is six years now since the examination was done. We are

also aware of the fact that the appellant has been under the gloom of uncertain fate

for the same F length of time. We feel that we should not prolong his ordeal. So we

quash the conviction of murder and set aside the sentence of death. We find him,

instead, to be guilty of causing grievous harm c/s 225 of the Penal Code and sentence

him to imprisonment for a term of six years. G

We have one small but vital remark to make. The information contained the

following particulars of offence:

Mwita s/o Nyamhanga on or about the 25th day of April, 1986 at Nyarwana

Village, in the H District of Tarime in Mara Region murdered one Sekoture s/o

Chacha.

Now, 25/4/1986 was the date the deceased died but that was not the date when the

appellant inflicted the injury on the deceased. That was 14/4/1986, as already said. It

I has been established long

1992 TLR p121

time age by R. v Lujo s/o Mgombe (1946) 13 EACA 156 that the date of the A charge

is that of the unlawful act and not that of the death. We wish to remind those

responsible for filing information about this requirement.

B Appeal allowed.

1992 TLR p121

C