R. v. Sambu Ng’osha, Crim. Sass. 56 – T – 69, 8/7/69, Seaton J.

R. v. Sambu Ng’osha, Crim. Sass. 56 – T – 69, 8/7/69, Seaton J.

The accused was charged with the murder of his wife c/s 196 Penal Code. On the morning of the material day, the accused asked his wife to come with him to their shamba. She refused but later came. He told her to go to the millet shamba to keep away the birds. She refused and they quarreled. He suggested they should go to the village elders to mediate. She refused to go. Accused slapped her and she tore his shirt. He picked up a stick and beat her many times on her bottom and thighs. They then went home to eat and returned in the afternoon to the shamba. On the way the wife hid and the accused not finding her anywhere returned home. The wife returned at sunset and on being question by the accused led him to the shamba to convince him she had been in the shamba and hidden. Accused disbelieved her and they “fought”. Accused’s brother intervened and separated them. They returned home but on the way accused had to carry his wife as she had failed to walk. At home he poured water over her and applied hot bath treatment. In the night he went for “Aspros” as deceased ‘s condition deteriorated before she expired. Death was by shock due to a ruptured spleen such as could be caused by a blunt instrument or a fall on a hard object. Accused’s brother testified accused used a stick about 3 ft. long ¾” diameter apparently picked up on the wayside.

            Held: “In my summing up to the assessors, I attempted to explain the law relating to murder and manslaughter particularly as it relates to killing by correction. I explained that it is unlawful to chastise a wife immoderately. The Law of Persons, Government Notice No. 279 of 1963, which is declared to be the law applicable to persons within the jurisdiction of the Nzega district council – as were the accused and his wife – by section divorce by a wife even if it causes marks or swelling. However, by section 166 of the Law of Persons, a husband who causes injuries to his wife can be made by the court to compensate her for her injuries and the court can in addition fine the husband the law does not condone the immoderate chastisement of a wife by her husband. I suggested to the assessors that if they were of the view that the chastisement of his wife was customarily done by a husband in the way of life and standard of living of the accused but that the accused had exceeded the usual bounds of chastisement, he was guilty of manslaughter. I advised the assessors that if they were of the view, either because of the weapon that had been used or the manner in which the accused had used that weapon, that he must have intended to kill or cause assessors were of the view that the accused had not killed his wife intentionally but had killed her by bad luck. Hence they advised that he accused was guilty of manslaughter.” (2) “In all the circumstances, I am of the view that the prosecution have

not established beyond reasonable doubt that the accused caused death of his wife with malice aforethought. It is clear that the accused beat his wife many times on the same day and too hard. But the evidence is consistent with blows having been aimed by the accused at the buttocks and thighs-which are areas of a woman’s body usually well padded with fat. One or more of these blows may have fallen by mischance on the front of the abdomen and caused a rupture of the spleen. It is also possible that the blows on the buttocks and thighs caused the accused’s wife to fallen the accused deliberately armed himself with a heavy club-like weapon and struck his wife on the more vulnerable parts of the body such as the head. I accordingly agree with the views of the assessors. I acquit the accused of murder and find him guilty of manslaughter and convict him accordingly under section 195 of the Penal Code.” Accused sentenced to four years imprisonment.