MUKAMI W/O WANKYO v REPUBLIC 1990 TLR 46 (CA)

 

MUKAMI W/O WANKYO v REPUBLIC 1990 TLR 46 (CA)

Court Court of Appeal of Tanzania - Mwanza

Judge Nyalali CJ, Makame and Ramadhani, JJA

20 June 1990

Flynote

B Evidence - Confessions - Contradictions in some parts of confessions - Central

story nothing but the truth - Whether may ground conviction.

-Headnote

C The appellant was charged with and convicted of the murder of her husband by

administering poison. The conviction was grounded on the appellants two confessions

which had apparent contradictions between certain parts. The appellate court

considered the effect of these contradictions.

D Held: (i) We have considered these contradictions but we are satisfied that they

do not affect the central story of the confession which concerns the administration of

the poison to the deceased through tea prepared by the appellant for the deceased;

E (ii) if the contradictions are severed from the central story the confessions

contain nothing but the truth and can safely be relied upon to convict the appellant in

keeping with the rule stated in the case of Tuwamoi v Uganda [1967] E.A. p. 84.

Case Information

F Appeal dismissed.

Butambala, for the appellant

Malamsha, for the respondent

[zJDz]Judgment

G Nyalali, C.J., Makame and Ramadhani, JJ.A.: The appellant Mukami Wankyo was

charged in the High Court on circuit at Musoma with the offence of murder c/s 196 of

the Penal Code, was convicted as charged and sentenced to suffer death by hanging.

She was aggrieved by the conviction and sentence hence this appeal to this H court.

Before us the Republic was represented by Mr. Malamsha, learned State Attorney.

Mr. Butambala learned advocate, representing the appellant filed a memorandum of

appeal containing one ground of appeal stating:

That the case against the appellant was not proved beyond reasonable doubt as the

evidence relief upon by the trial I judge to convict the appellant was not watertight.

1990 TLR p47

NYALALI CJ, MAKAME JJA and RAMADHANI JJA

From the proceedings both in this court and the court below, the following matters of

fact are not in dispute A between the parties. It is common ground that at the

material time the appellant was one of the many wives of one Wankyo s/o Mkirya.

On or about 11th July, 1986 the said Wankyo s/o Mkirya died inside the house of the

appellant in Magunga Village, Musoma district. Subsequently the appellant was

apprehended and taken to B Buhemba Police Station, where she made a statement to

a police officer, that is, no. C 193 D/Cpl. Joseph (PW.1) in which she confessed to

poisoning her husband by putting poison in the tea which she prepared for him that

day, apparently because of his persistent cruelty towards her. Thereafter the appellant

was taken to a Resident C Magistrate, that is, Mrs. C.K. Kalombola (PW.2) to who

she made a similar confession. Furthermore, it is undisputed that on the 14th July

1986 a postmortem examination on the body of the deceased was performed by a

doctor, who came to the conclusion that the death of the deceased was due to poison.

This doctor took some D internal organs which he sent to the Government Chemist

for further expert chemical analysis and report. It is undisputed that the Chief

Government Chemist's report, made in consequence thereof, shows that the pieces of

liver and kidney, as well as the intestinal excreta taken from the deceased, contained

some alkaloids and organ sulphur, E which are known to be fatal to human beings,

when taken in large quantities.

From the same proceedings in this court and the court below, the following matters of

fact appear to be in dispute between the parties. It is the prosecution's case that the

appellant voluntarily confessed to PW. 1 and PW.2 to the F effect that she had put

poison in the tea which she had prepared for her husband on the material day in

order to kill him and thereby end her ordeal of cruelty perpetrated to her by her

husband. On the other hand, the case for the defence consists of a general denial of

the prosecution case and an assertion that the deceased began feeling unwell when he

returned to the appellant's house from a visit to the house of one of his sons by

another wife. It is part of G the defence case that after the death of the deceased, the

appellant was beaten up, initially by the sons of the deceased, and later by the police

at Buhemba Police Station . It is part of the defence case that as a result of these

beatings by the police, she confessed to PW.1 and PW.2. H

The first important issue for consideration and decision in this case is whether the

confessions made by the appellant to PW. 1 and PW.2 were voluntary. The trial court

came to an affirmative answer after a trial within a trial was conducted in respect of

each of the confessions. We concur with the conclusion of the learned trial judge on

this I point. In her evidence in chief given during the trails within the trial, the

appellant

1990 TLR p48

NYALALI CJ, MAKAME JJA and RAMADHANI JJA

A asserted that she was beaten up by PW.1 and another son of the deceased, that is,

Mr. Sukuti, to induce her to confess. We note however that when PW. 1 gave

evidence in one of the trials within the trial, no suggestion to the effect was put to

him under cross-examination by the defence. We think it is unlikely that PW. 1

would not have B been cross-examined by the defence specifically on the point, if

really he and Mr. Sukuti were involved in beating up the appellant. Furthermore, if

the appellant had really been beaten up by the police at Buhemba to induce her to

confess, she would have mentioned that fact to the Resident Magistrate, that is PW.2,

when confessing to her in the C Magistrate's court chambers. The suggestion made

to PW.2 under cross-examination to the effect that a confession, was denied by PW.2

appears to be candid. This is illustrated by her record of what she saw when she

examined the body of the appellant. She records to have seen bruises on the leg and

fingers of the appellant. These D bruises were however old.

The second issue for consideration and decision in this case is whether the appellant

poisoned the deceased. The three wise assessors and the learned trial judge accepted

the two confessions as true, and came to an affirmative E conclusion on the issue. In

coming to this conclusion, the trial court however did not specifically consider the

apparent contradictions between certain parts of the two confessions. Such

contradictions concern inter alia, the source of the poison, and her normal residence

prior to this incident. In her statement to PW. 1 she claims to have F been living in

separation from the deceased for twelve years in Kenya, and claims to have brought

the poison with her from Kenya. However in her statement to PW.2, the appellant

seems to suggest that she lived with her husband and obtained the poison from a

witch doctor in Tarime.

G We have considered these contradictions but we are satisfied that they do not

affect the central story of the confession, which concerns the administration of the

poison to the deceased through tea prepared by the appellant for the deceased. These

contradictions can therefore be severed from the central story within the scope stated

in the case of Siduwa Were v Uganda, [1964] E.A. p.596. Moreover, the central story

is confirmed by the findings of H the Chief Government Chemist concerning the

remains of the internal organs taken from the body of the deceased. Thus fortified we

are satisfied that the remaining central story in the confession contain nothing but

the I truth, and can safely be relied upon to convict the appellant in keeping with

the rule stated in the

1990 TLR p49

case of Tuwamoi v Uganda [1967] E.A. p. 84. Having come to that conclusion, it

follows that the appeal must fail A in its entirety.

In the final analysis therefore we dismiss this appeal in its entirety.

Appeal dismissed. B

1990 TLR p49

C