R. v. Makeja s/o Mashauri Crim. Sess. 39-M-69, 12/6/69, Seaton J.

R. v. Makeja s/o Mashauri Crim. Sess. 39-M-69, 12/6/69, Seaton J.

The accused was charged with unlawfully causing the death of one Kunyali s/o Minunga c/s 195 of the Penal Code. The accused and deceased were both young boys of the Sukuma tribe aged 11 and 0 respectively at the time of the incident out of which the charge arose. Coming upon a group of boys the accused joined them in a game popular in that village in which the combatants try to strike one another with sticks and to defend each other against being struck, as an exercise in learning self-defence. The deceased struck the accused on the hand, then again on the ribs whereupon the accused apparently angered, retaliated by striking the deceased on the head. The deceased fell down and a little later got up a walked home but died soon thereafter due to subdural hameorrhage resulting from fractured skull.

Held: (1) “As the accused is under the age of 12 years and was so found to be by this Court, it was necessary for the prosecution to prove not only that he had committed an unlawful act but, according to the provisions of s. 15 of the Penal Code, at the time he had capacity to know that he ought not to do the unlawful act. The prosecution attempted to prove this by submitting that the game itself was unlawful and that, even if it were not unlawful, it became so when the accused became angry and retaliated by striking the deceased in anger upon a part of his body which he knew to be vulnerable such as the head. The evidence as to the unlawfulness of the game consisted in that of shiremba Mashauri, a boy of about 12 or 13 years of age ……. To the effect that his father told him that this game was not good and that he was afraid of playing it. As against this, there was his own testimony and that of Kola, a boy of 17 years of age that the game is very common in the village and most boys and girls play it.” (2) “I had summed up to the assessors that if they found that the game was unlawful or that the accused had in anger struck the deceased a violent blow upon a vulnerable part of his body knowing that it was a wrong thing to do, then even thought he might not have intended to cause grievous harm to the deceased, he would be guilty of manslaughter. On the other hand, I advised the assessors that if they were of the view that the game was not unlawful and was being played by the accused and the

deceased according to its normal rules but that because of the deceased’ inability to defend himself, the blow fell on his head whereby it was fractured and eventually caused his death, and if they were of the view that the blow was accidentally struck or struck by bad luck, then they should acquit the accused of manslaughter.” (3) “The assessors had heard the evidence of the two boys, Kola and Shiremba, and of the deceased’s mother Pinga, who accompanied the deceased to the dispensary and to the hospital after he had come him injured. They had heard also the doctor’s evidence as to the injury sustained by the deceased and the accused’s statutory statement which he adopted and confirmed at his trial. In this statement the accused admitted striking the deceased but explained it was through bad luck while they were playing. Considering all of the evidence, the assessors were unanimously of the view that the game was not unlawful, that it had been played by boys in Sukuma land from the time of their ancestors and that the elders are pleased to see young boys participating in this game because it gives them dexterity in the art of self-defence. They advised that the deceased had suffered the injury through pure bad luck in this game and that his killing was not the result of any unlawful act.” (4)”I see no reason to differ from the views of the assessors which are based on the evidence heard in this Court and on their knowledge of the Sukuma custom, both of them being Sukuma elders. Accordingly find the accused not guilty of the offence of manslaughter and acquit him of the charge.”