R. v. Shilinde Mathew Crim. Sass. 12-5-70; 6/2/70; Seaton J.

 

R. v. Shilinde Mathew Crim. Sass. 12-5-70; 6/2/70; Seaton J.

Accused on 25/8/69 left his home for Malungulu in search of a job. He left behind in his house decease who was his concubine with whom he stayed for 4¹/₂ years with one son. Accused returned on the right of 4/9/69 at about 10 P.M. He knocked at the front door of his house but there was no reply. Then he heard his wife say from inside “To-day we are down for it.” Accused then heard some sound as if the rear door was being opened. He went around and saw a man coming out of the house through the rear door. The man was running away. Accused chased the man and struck him on the head with a piece of wood which he had picked up three times. Accused was arrested and charged with grievous bodily harm. Deceased was taken to Kahama Government Hospital where he died few hours after his admission. Post-mortem examination of deceased revealed that the skull had a compound fracture and there were multiple bone fractures. Death was due to the wounds on deceased’s head. After deceased’s death accused was charged with murder and has been in custody since his arrest.

            Held: “It seems that where the parties have lived together as husband and wife, though not regularly married, the defence of provocation may in Kenya be relied upon in the case of homicide to reduce what might otherwise have been murder to manslaughter and in KALUME WA TUIN v. R. (1954) 21 E.A.C.A. 201, where a man found his mistress of two years in flagrante delecto, he was sentenced to two years imprisonment for killing her. In OTENDE OSEJANI v. UGANDA, 1965 E. A.  627, a man and a woman had lived together for two years as man and wife, although they were not lawfully married according to customary law because no dowry had been paid and where the man had found the woman with another man in circumstances which suggest that adultery had taken place or they were about to have sexual intercourse and killed the other man, the killing was considered manslaughter and there was a sentence of five years imprisonment. I have not been able to find any case in Tanzania of a man and woman living together but where there has been no customary law marriage in the sense that brideprice was paid, in which murder has been reduced to manslaughter. Nevertheless in the present case learned defence counsel has submitted that it would be manslaughter and learned State attorney has accepted that this is so. It seems to me that the present case is nearer to the Mganda case than the Kenya case because the accused did not meet his wife and the other man in the act of adultery but they  were inside his house in circumstances which suggest that adultery may have taken place or intercourse was about to take place. I bear in mind that the accused in this case had lived with the woman of 4¹/₂ years and there was a child born which would mean that his relationship with the woman was closer than in the Uganda case. But this deceased man was running away. Accused followed him and struck him 3 blows, 2 on the head, 1 on the legs. It is said that accused was additionally provoked by the other man throwing sand in his face in the hope of taking away his weapon which was a piece of firewood that the accused had picked up. In all the circumstances, I think a sentence of 3¹/₂ years imprisonment would be appropriate.”