REPUBLIC v ALLY SAID KIUBATYO 1990 TLR 137 (HC)

 

REPUBLIC v ALLY SAID KIUBATYO 1990 TLR 137 (HC)

Court High Court of Tanzania - Lindi

Judge Kazimoto J

1 September, 1990

Flynote

Criminal Law - Murder - Provocation - Suspicion of adultery - Whether can afford

defence of provocation in murder B

Criminal law - Murder - Provocation - Deceased statement - When provocative -

Whether can afford defence of provocation in murder

-Headnote

The accused was charged with the murder of his wife. After killing the wife he

dumped her body into an abandoned C latrine, buried her and made a false report to

his own father and mother in law about the whereabouts of the wife. The killing took

place after the accused had suspected that his wife had committed adultery, failed to

arrest the D suspect after chase and the wife had uttered words which made the

accused lose his temper and hit the deceased with a billhook which was nearby.

The trial court considered whether suspicion of adultery can afford a defence of

provocation in murder. It also considered whether or not the statement by the

deceased can afford a defence of provocation in the circumstances. E

Held: (i) Prior knowledge by a husband of the adultery of his wife with a paramour

does not bar him from raising the plea of provocation if the killing was upon finding

the wife and her paramour in the act of adultery. In the present F case the accused

alleges that the deceased had committed adultery in similar circumstances three times

but he had never seen the deceased committing adultery; so the defence of

provocation is not open to the accused;

(ii) the statement alleged to have been uttered by the deceased was

provocative in law and as the accused killed G the deceased as a result of such

provocation the killing was not intentional.

Case Information

Guilty of manslaughter. H

Kumwembe, for the accused

Tendwa, for the Republic

[zJDz]Judgment

Kazimoto, J.: The accused Ally Said Kiubatyo stands charged with murder o/s 196 of

the Penal Code. The Court I has been informed that on or about the 13th day of

October, 1989 at Chapita Village

1990 TLR p138

KAMIZOTO J

A Mingumbi within the District of Kilwa, in Lindi Region the accused murdered

Zena d/o Mshamu Kimbokota The accused has pleaded not guilty

A preliminary hearing was held in accordance with the accelerated Trial and Disposal

of Cases Rules 1988; B whereby the prosecution stated in detail all the facts of the

case. The defence admitted only one fact that the deceased has died.

A full trial was then held and what was obvious at the preliminary hearing the

accused had grudgingly to admit that Zena d/o Kimbokota was his wife; that he killed

her, that after killing her he dumped her body into an abandoned C latrine and

buried her and made a false report to his own father, and his mother-in-law, that the

accused had to report at the authorities as he had not done so while PW1, and the

relatives of the deceased went to the house of the accused, combed the surrounding

area; in the shrubs, forest, valleys all in vain. Then while at the house of the D

accused PW2 saw a place which had been covered with fresh sand and flies were

flocking in and out. PW2 called search party, they dug out the sand and saw a human

body cuddled in a kaniki and kitenge cloth. The body was identified to be that of the

deceased. When the accused was asked he appeared apprehensive of and PW1

ordered E the arrest of his son and tied him with a rope and was taken into custody.

The evidence of PW2 is in all fours with that of PW1 and I do not intend to repeat it.

PW1 has informed the court that since their marriage he has never received any

complaint either from the accused or deceased about misunderstandings in their

matrimonial life and the only complaint he got came from PW2 that F the accused

had borrowed money and did not repay it. In his evidence the father of the accused

(PW1) informed the court that on 15.10.1989 the accused reported to him that his

wife had disappeared from home and that he did not know where she had gone. He

further informed the court that the accused told him that the deceased had left all G

her clothes and took with her a piece of kaniki and a kitenge and that deceased

disappeared for two days. He advised the accused to report to the parents of the

deceased immediately but the accused refused saying that he was tired. He informed

the court further that on 16.10.89 the accused went to report to the deceased's parents

that H the deceased had not been seen at home since 13.10.89 and was informed that

she had not be seen at their home and that since there was only one person they

would go to the accused house on the following day. On 17.10.89 PW2 together with

the brothers and sisters of the deceased went to PW 1 and after consultations in the

presence of I the accused it was decided the accused should go to report to the

1990 TLR p139

KAMIZOTO J

relevant authorities. In the meantime a manhunt was mounted in the valleys, shrubs,

bushes and forests around the A area surrounding when she went to answer a call of

nature, which arose her suspicion. It was a disused latrine freshly covered with sand

and flies flocking in and out. She prickled a stick and called in other members of the

search party, undug the sail and saw a human body which was that of accused's wife.

The accused was arrested. B He first denied knowledge and when taken to a justice

of the peace he made a free, voluntary and full confession that he killed the deceased.

The confession had been admitted in evidence. In his confession he stated that he

returned at night to his house and did not see her. He only saw the child alone

sleeping. As he went out to check he C heard a person running away and gave chase

but failed to get him. When he returned inside he saw the deceased sitting on the bed

and asked her who the person was he saw running. The deceased was alleged to have

replied "sijui umemkimbiza na umeshindwa mwenyewe kumkamata sasa unamwuliza

nani na mtu mwenyewe D umemwona?" - freely translated in means "I do not know.

You have seen the person and failed to arrest him. Whom do you ask then?" The

accused stated in his confession that he lost his temper and took the billhook which

was nearby and hit the deceased intending to warn her and then realized that he cut

the deceased on the forehead. He panicked when he came to know that he had killed

the deceased and dumped the body into the latrine. E

The accused gave evidence on oath. He adopted his extrajudicial statement. His

evidence does not differ in anyway with the confession.

The Republic have contended in their submission that there was no evidence of

adultery. All that has been shown F was a suspicion that deceased had committed

adultery. It was submitted that hearing a person run away does not show adultery.

The Republic also submitted that the words which deceased was alleged to have

uttered were ordinary words and G could not have provoked the accused into

killing.

The Republic also submitted that the accused relies on insanity as a defence but

contended that the accused was not insane.

In reply learned defence counsel conceded that the accused has a weak defence in

insanity but he submitted that the H accused had been provoked and relied on

Manyeri s/o Mukonko v R. (1954) EACA 274. He further contended that the words

which deceased had spoken could have provoked the accused. He stated that the

accused has stated that deceased used to commit adultery and suspected that she had

done so. I

1990 TLR p140

KAMIZOTO J

A In my summing-up note I stated to the assessors the defence of provocation exists

where the following are established that the accused killed the deceased in the heat of

passion, that the state of passion was caused by provocation of a sudden kind,

provocation must consist of a wrongful act or insult which if done or directed to an B

ordinary person he would have been deprived of his power of self-control.

Two gentlemen assessors found that the accused intended to kill the deceased. The

first gentleman assessor is of the opinion that there was no evidence of adultery. He

also stated that accused has known that deceased had committed adultery on three

previous occasions. The third gentleman assessor concurred with the first assessor and

C took into account the weapon used and the circumstance of the whole case. The

second gentleman assessor stated that the killing was not intentional and gave his

reason as to why he thinks that the defence of provocation stands.

D It is conceded that the accused did not see the alleged person let alone seeing the

deceased committing adultery. He only suspected the deceased of having committed

adultery. The issue is whether suspicion of adultery can afford a defence of

provocation in murder cases . In the case cited by learned defence counsel of Manyeri

s/o Mukonko E (supra) while the deceased and her husband the appellant had retired

to bed a man came to the door of the hut they had been living in and spoke to the

deceased, who told the man that she did not know him. The man asked what she

meant and then the man stated that he had been living with the deceased. The

appellant got out and F chased the man who ran away. The appellant got angry and

speared the wife. It was held that the sudden discovery of a wife's adultery even if not

finding her in fragrante delicto may in law be sufficient provocation to reduce an

international killing to manslaughter. But this case can be distinguished on the fact

from the present one. In Munkonko's case the paramour went to the door of the

appellant and spoke to the deceased. The appellant heard G the man. Secondly the

appellant heard the deceased talk to the man who being told by the deceased that she

did not know him, the man stated that he had been living together with her. In the

present case the accused did not see H the suspected paramour nor was there any

conversation between the deceased and the alleged paramour. The only thing in

common is the fact that in both cases the alleged paramour ran away.

I have called in aid the cases of Yokoyadi Lakora s/o Omari v.R [1960] EA 323 and R.

v Ernest Mkumba I JIMILI [1979] LRT no. 27. The case deals with previous

knowledge of adultery of a wife with a paramour. In both cases it was held that prior

knowledge by a husband

1990 TLR p141

KAMIZOTO J

of the adultery of his wife with a paramour does not bar him from raising the plea of

provocation if the killing was A done upon finding the wife and her paramour in the

act of adultery. In the present case the accused alleges that the deceased had

committed adultery in similar circumstances three times but he had never seen the

deceased committing adultery. Accordingly the principles laid down in the cases of

Yokayadi and Ernest (above cited) B cannot be applied to this case.

I have considered the alleged statement by the deceased quoted above to see whether

it could not have provoked the accused. Looking at it in a superficial manner the

statement is innocent. But considered in the circumstances in C which the statement

was uttered could have provoked the accused. The accused had come from husking

coconuts. He knocked at the door expecting the deceased to open the door for him.

Then he pushed the door open only to find his child sleeping alone in bed. The

deceased was nowhere to be seen. The accused went out and as he was D searching

around he heard foot steps of a person running. He chased the person and failed. He

did not know who the person was. He turned inside and saw the wife sitting on bed.

The accused asked who was the person he saw running. Instead of being civil she

uttered the words she was alleged to have said. The reply could have infuriated the

accused, as it actually happened and took the billhook and caused the deceased's

death. In my view those E words uttered to an ordinary man in the circumstances

which accused had would have provoked him to assault the deceased. In his

confession the accused stated the he was seized with sudden passion and assaulted the

deceased. It is true that he used a lethal weapon but it is not suggested that the

accused had time to look for it. In his evidence F and confession made to the justice

of the peace the accused appeared to have the billhook when he returned from his

safari. I agree with the defence counsel that the statement alleged to have been

uttered by the deceased was provocative in law and as the accused killed the deceased

as a result of such provocation the killing was not G intentional. I concur with the

second gentleman assessor that the killing was not intentional.

The accused was not insane. The depositions do not state that the accused had once

suffered insanity. As the burden to establish the issue of insanity is on the defence on

a balance of probability it was properly withdrawn as H being weak. In any case it

does not raise any doubt in the prosecution case.

A lot has been said about the conduct of the accused after killing the deceased. I agree

the conduct of the accused cannot be described in any way humane. The is far from

saying that he was not provoked. I

1990 TLR p142

A For the reasons I have given above I am satisfied that the prosecution have failed

to establish that the accused killed the deceased intentionally. I am satisfied that the

murder against the accused had not been proved. Consequently I acquit the accused

of murder c/s 196 of the Penal Code but convict him of manslaughter o/s 195 of the

Penal code.

B Order accordingly.

1990 TLR p142

C