SALUM ABDALLAH KIHONYILE v REPUBLIC 1992 TLR 349 (CA)

 

SALUM ABDALLAH KIHONYILE v REPUBLIC 1992 TLR 349 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Makame JJA, Ramadhani JJA, Mfalila JJA

D

27 November 1992

Flynote

Criminal Law - Murder - Provocation - Provocative incidents taken together -

Whether defence of provocation available. E

Criminal law - Murder - Self defence - Spearing deceased from the back while

pursuing him - Whether defence of self defence available.

-Headnote

The appellant who was convicted of murder appealed against both conviction and F

sentence of death. In his appeal he argued that the learned trial judge did not consider

a number of provocative incidents which, when taken together availed him of the

defence of provocation. The appellant also argued that although he speared the

deceased from behind while pursuing him the defence of self defence should have

been accepted by G the Court.

Held: (i) Having in mind all the background incidents, the continuous almost

deliberate trespassing of their farms by the Masai cattle, the aggressive approach by

the Masai and H the subsequent attack on the appellant which resulted in his being

injured on the forehead, convince us that at the time the appellant speared the

deceased, he was still affected by this provocation;

(ii) when the appellant speared the deceased from behind while pursuing him

he was not then defending himself against anything as the deceased was no longer

aggressive. I

1992 TLR p350

Case Information

Murder reduced to manslaughter. A

Shayo, for the appellant

[zJDz]Judgment

Mfalila, Makame and Ramadhani, JJ.A.: The appellant Salum Abdallah Kihonyile B

was charged with and convicted of murder. Upon being so convicted, he was

sentenced to death. This appeal before us is against that conviction and sentence.

According to the version given by the prosecution at the trial, the killing of the

deceased Hassan Maranda, followed an incident in which the appellant had cut the

muscles of the C hind legs of a Masais cow. This was on 14/11/88. The detailed story

was told by one of the Masai herdboys Njai Kisongela (P.W.4). At the time he was

giving evidence, this boy was estimated to be about 12 years old. The learned trial

judge allowed him to give evidence but not on oath because he found that the boy did

not understand the nature D of an oath. This boy told the trial court that on the day

in question he and his colleagues were herding cattle when the appellant approached

their herd and cut the hind legs of one of the cows. The said cow was immobilized.

The boy ran home to tell his parents and other adult Masai, that the appellant whom

he knew had immobilized one of the E cows by cutting the muscles of its hind legs.

On hearing this, the elders asked the boy Njai Kisongela to lead them to the scene

where the cow had been cut and was lying. The boy took them there and on seeing

the striken animal, one of these adults, namely F the deceased asked him to take him

to the man who had done this to one of their cows. Despite being advised by his

colleagues that he should not do that until it was established whether or not the

culprit was just a thief, the deceased insisted on meeting the man immediately. The

boy Njai led him to the appellant's hut where they found the G appellant lying down

outside. According to this boy, when the appellant saw them he started shaking in

fear. The deceased asked the appellant to accompany them to the place where the

cow which he had cut was lying. The appellant responded by saying that he did not

cut any cow, but he added that he would ask his colleague who was H inside the hut

to see whether it was he who had cut the cow. He ran inside, the deceased tried to

stop him without success. When the appellant came out, he was armed with a spear

and threatened to teach the two a severe lesson. The two then started running with

the appellant in hot persuit of the deceased. When after some I distance (65 metres

according to the estimated distance), the deceased tripped and fell, the appellant

1992 TLR p351

MFALILA JJA, MAKAME JJA, RAMADHANI JJA

stabbed him with a spear at the back. The blade went so deep that only the handle A

came out, the steel blade remained in the body until it was removed during the post

mortem examination. After stabbing the deceased, the appellant turned on the boy

Njai, but he abandoned the chase when he saw people coming.

At the trial, the appellant denied cutting the cow as alleged, but admitted spearing the

B decased to death, saying that he did so after being provoked by the deceased and

his colleagues. According to his version, the background to the killing of the deceased

was as follows: Prior to this incident, the Masai cattle had been a menace to farms in

the area, and consequently he decided of late to guard his shamba. On the day in C

question at about 5 p.m. he saw a group of cattle moving towards his shamba. He

went out of the hut to go and chase away the cattle from his shamba. As he was doing

this, he saw four Masais emerge from the grass where the cattle had originally come

from. The D Masai started driving the cattle back to his shamba. They confronted

him and asked him why he was driving their cattle away from the grass. When he

asked the Masai where the grass was, they started assaulting him. The deceased in

particular took out his hunting knife and a stick. He advanced on him and attempted

to cut him with it. In the course of this confrontation, the deceased cut him on the

forehead. At this stage, the E appellant ran into his hut, followed by the deceased.

He collected his spear and confronted the deceased. While they were in this position,

the appellant said, he stabbed the deceased with the spear. After being stabbed the

deceased retreated, but another F Masai followed him. Fortunately he managed to

get out of the hut and ran very fast to the local cell leader for safety.

After being addressed and directed by the learned trial judge, all the three assessors

were of the opinion that throughout this incident, the appellant was acting in selfdefence

G against a group of Masai who had attacked him. In the circumstances,

they advised that he should be acquitted.

However, the learned trial judge differed and held that both the defences of

provocation and self defence were not available to the appellant. The learned judge

had very high H regard for the boy Njai (P.W.4) as a witness who he said, told

nothing but the truth, and that on the version as told by P.W.4, there was no room

for provocation or self defence. He rejected as lies the appellant's version of the

confrontation between him and the Masai during which he was stabbed on his

forehead. He gave a number of I reasons. First, the learned judge said that if the

appellant and the deceased

1992 TLR p352

were facing each other as described by the appellant, it would not have been possible

A to stab the deceased on the part of the body shown in the report. Secondly, he said

that the deceased's knife was found in its sheath thereby eliminating the possibility

that the deceased used or attempted to use it on the appellant. Thirdly, he said that

the injury on the appellant's forehead was so superficial that it could only have been

self inflicted to B match the story he prepared.

At the hearing of this appeal, Mr. Shayo learned counsel who advocated for the

appellant, stressed the availability to the appellant of the twin defences of provocation

C and self defence. He argued that the fact that everybody agrees that at the time the

appellant was shaking with fear, indicates the existence of an intimidating

atmosphere and that since on the evidence there was a fight, the appellant must have

been acting in self-defence.

On our part, we think with respect that the learned judge's great trust on the D

credibility of the boy witness (P.W.4), blinded him to other equally relevant and

important considerations. Take the question of the appellant cutting the legs of one of

the cows in the Masai herd. The appellant denied doing anything of the sort, but we

are satisfied that his denial cannot be true. The boy P.W.4 saw him do it and the

afflicted E cow was physically seen and later slaughtered. But this incident should

not have been so lightly dismissed by the learned judge. It was a pointer or indicator

that all was not well between the "Waswahili" agriculturists and their pastoral Masai

neighbours. It cannot be F possible that a man in his right senses, as we think the

appellant is, could just get up and start cutting the limbs of his neighbour's animals.

There must be something or some occurence which provoked him to act that way. In

this case we are told, and this was not seriously challenged, that Masai cattle were a

menace to the cultivated and planted G farms in the area. On the day in question,

the appellant must have seen these cows arriving to invade his shamba and reacted

accordingly. So this was the first provocation. Then he was confronted by the

deceased whose approach was far from friendly. This is borne out by the fact that the

deceased insisted on meeting the man who had cut the H legs of their cow despite

being advised to the contrary, to wait until the position was thoroughly established.

On arrival at the appellant's hut, and on seeing them, the appellant was visibly

trembling with fear. What then made him tremble in fear? It must have been the

menacing approach by the deceased, indicating that he was armed and I ready to use

his weapon. We think this explains

1992 TLR p353

MWALUSANYA J

the need felt by the appellant to go into his hut to similarly arm himself for a possible

A confrontation. In this kind of atmosphere, saturated with aggressiveness on both

sides, where one party ends up dead and the other with an injury described by D. Sgt.

Saidi Rashidi (P.W.3) as one which must have been occasioned by a sharp weapon,

we do not think it was correct and safe to dismiss it as self inflicted to match the

prepared B story. At one time during the confrontation, the appellant could have

acted in self defence but this cannot apply to the final stabbing with a spear because

we are satisfied from the position and nature of the injury that the appellant speared

the deceased from the back while pursuing him. He was not then defending himself

against anything. The C deceased was no longer aggressive. But having in mind all

the background incidents, the continuous almost deliberate trespassing of their farms

by the Masai cattle, the aggressive approach by the Masai and the subsequent attack

on the appellant which resulted in his being injured on the forehead, convince us that

at the time the appellant D speared the deceased, he was still affected by this

provocation which is sufficient to reduce the offence to the lesser one of

manslaughter. The gentlemen assessors at the trial, were of the opinion that the

appellant acted in self defence, but for the reasons we E have given, this defence was

not available to the appellant at the time he speared the deceased in hot pursuit. But

as indicated he was still under the influence of provocation.

For those reasons we set aside the conviction for murder and the sentence of death.

Instead we substitute a conviction for manslaughter and taking all the relevant factors

F into account, we sentence the appellant to 10 years imprisonment effective from

the 25th April, 1989 the date he was convicted and sentenced in the High Court.

G Order accordingly.

1992 TLR p354

A