IN THE COURT OF APPEAL OF TANZANIA

AT MTWARA

fCORAM: KIMARO. J.A.. KAI3AGE. J.A.. And LILA, J.A.^

CRIMINAL APPEAL N0.159 OF 2016

ALLY ABDALLAH KAVAI....................................................................... APPELLANT

VERSUS

THE REPUBLIC................................................................................... RESPONDENT

(Appeal from the judgment of the High Court of Tanzania sitting at Lindi)

(Mzuna.

dated the 16th day of October, 2015

in

Criminal Session No. 11 of 2014

JUDGMENT OF THE COURT

22nd & 29th July, 2016

KIMARO, 3.A.:

The appellant was on 29th of June 2015 arraigned for the offence of

murder in the High Court of Tanzania at Mtwara. He was alleged to have

intentionally caused the death of Hamidu Limbandike, on 2nd November,

2012 at Kililima Village, within Kilwa District in Lindi Region, an offence which

the appellant denied to have committed.

When the preliminary hearing of the case was conducted on 29th June

2015, the appellant did not dispute causing the death of the deceased. He
stated that he killed in self defence. All the parties present in court on that

day when the preliminary hearing was conducted, signed the memorandum.

Those in attendance in court on that day were the appellant himself, Mr.

Moses Mkapa, his defence counsel, Mr. Abdulrahman Mohamed, learned

State Attorney who represented the Respondent /Republic and the presiding

learned judge, Mr. F.A. Twaib. What the appellant agreed is that:

"/£ is true that I killed Abdallah Kavai. la m a resident

o f Kililim a, Mingumbi. I am now 40 years o f age,

Mngindo by tribe and a muslim. I attacked Hamindu

Lim bandike in self- defence. He was the first to

attack me.

Signature o f the accused: Sgd RHT

Signature o f Defence Counsel: Sgd

Signature o f State Attorn ey: Sgd "

Signed
F.A. Twaib,
Judge
29/6/2015."
 Thereafter, the case proceeded to full trial and the appellant was

convicted of the offence of murder and sentenced to death by hanging.

The evidence produced during the trial was that Mariam Hamidu

Limbandike (PW2) the prosecution key witness was once a girlfriend of the

appellant. In their relationship with the appellant they were blessed with a

child called Ally Abdallah Kavai. During their relationship, the appellant was

cohabiting with the appellant at the house of her father Hamidu s/o of

Limbandike (now the deceased, the victim of the charges facing the

appellant). Somehow, a misunderstanding occurred between the appellant

and PW2 because he refused to marry her. The appellant was forced to

move out of the deceased's house. Although he agreed to support PW2 by

supplying maintenance to the child, he did that for a while and then stopped

that provision.

Further testimony of PW2 in the trial was that she got another person

to marry her, and the arrangements for the wedding was planned for the

Sunday that followed the Thursday when the incident of the death of the

deceased occured. On that Thursday, when PW2 was sleeping in her room

with her child at about 1.00 a.m., she heard a "pangd' being pushed on the

door which was made of "makuti". When she asked what was the matter,
she was slashed with the "pangsf' on her face. Then a struggle occured

between the two. PW2 was struggling to take the " pangsf' from the

appellant. Unfortunately, and that is according to PW2, she held the

sharpened edge and it cut her thumb.

They both fell down. This time it was for the second time and the

appellant threated to kill PW2. It was then when PW2 called her father who

was sleeping in the same house but in another room and informed him that

the appellant was there with a "panga". Her father, the deceased,

responded to the call by her daughter. Because of an accident which he

suffered earlier, he used to use limping sticks in walking. PW2 said as her

father went to the scene, the appellant left her and went to cut the deceased

with the "pangsf' on the head and he, the deceased, fell down.

Although the appellant tried to run away, PW2 said she ran after him

and held him firmly. They went outside and they fell down again. The

deceased was able to stand up and went to assist his daughter to prevent

the appellant from running away. He sat on the appellant's legs while PW2

sat on his chest. PW2 raised an alarm and other persons went to the scene

of crime. These included Zainabu Saidi Limbakile (PW3) the sister of the

deceased. Her testimony was that upon her arrival at the scene of crime
she found both the deceased and PW2 bleeding profusely while the appellant

was held down by the two. PW3 raised an alarm and other persons

responded to the alarm as well. Among those who responded to the alarm

and testified in the trial were Saidi Mohamed Mchumgu (PW 1) and Saidi

Mohamed Chenga (PW4). Both witnesses corroborated the evidence of PW3

on what they found at the scene of crime. Both said PW2 and the deceased

held the appellant on the ground and the deceased and PW2 had cut wounds

and were bleeding profusely. The deceased was taken to hospital but the

situation did not work in favour of him. He miserably lost his life. The post

mortem examination report which was admitted in court without any

objection from the defence side during the preliminary hearing was exhibit

PI. It shows that death of the deceased occurred because of the severe

head injury which damaged his brain.

The witnesses who went to the scene of crime tied the appellant and

took those who sustained injuries to hospital for treatment. Because the

deceased died, the appellant was charged with the offence of murder. In

his defence, the appellant maintained his defence of self defence. He

corroborated the evidence of PW2 on their friendship and the child that was

born out of that relationship and that he was staying with PW2 at the

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deceased's house. He confirmed the evidence of PW2 that he had to leave

the house of the deceased after the deceased had scolded him for being of

little assistance in maintaining the child.

Accounting for what took place on the date of the incident, the

appellant said on the date of the commission of the offence he was called to

the house of the deceased by PW2 and informed that the child was sick. His

response was that since the matter had been reported by PW2 and his father

to the Village Office they should follow the same procedure in making a

follow up of the maintenance. While he was in exchange of words with

PW2, the deceased appeared and told him that it was customary for those

who come, to have an undesired sex with their children and refuse to supply

maintenance. He then threatened to harm him so that he can sustain a scar

which for him (the appellant) will be something to tell his relatives. It was

then when the deceased inflicted injuries on him by using an identified

weapon. He said two bones were removed from his skull. It was in retaliation

that the appellant hit the deceased on the skull. As the deceased tried to hit

the appellant again, he held his hand and he saw that the deceased had a

" p a n g a f They struggled and they fell down. From there what continued

was a struggle between the appellant, PW2 and the deceased for the

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possession of the " p a n g s ! The appellant said he cannot remember how he

cut PW2 and the deceased with the "pangs!'. According to the appellant he

gained consciousness after he was taken to the Street Chairman. He (the

appellant) found himself tied with a rope on both hands and the legs. The

appellant made a caution stament and extra judicial statement. They were

admitted in court as exhibits D2 and D1 respectively. In both statements

the appellant did not dispute commission of the offence and he reiterated

the defence of self defence.

After the evaluation of the evidence for the prosecution and the

defence the learned trial judge was satisfied that the offence of murder

against the appellant was proved by the prosecution beyond reasonable

doubt. The defence of self- defence by the appellant though considered,

was found to be of less value compared to the prosecution evidence. The

finding made by the learned trial judge was that:

"Though the accused say he never knew where he

h it the deceased and PW2 due to darkness however,

there could not have sim ilar scenario fo r PW2 and

the deceased to have cut wounds both a t the head.

He m ust have intended to do grievous harm or death

 which are the factors proving the existence o f m alice

aforethought"

In arriving at the above finding, the learned trial judge also considered

the motive for the appellant cutting the deceased. He was of the considered

opinion that he had formed malice aforethought because of the sour

relationship that was in existence between the two, after the appellant had

made PW2 pregnant and failed to marry her or provide maintenance to the

child Ally who was born out of that relationship of PW2 and the appellant.

The appellant was aggrieved by the conviction and the sentence and

filed this appeal which has nine grounds filed by the appellant himself and

two supplementary grounds of appeal filed by the advocate assigned to

defend him.

At the hearing of the appeal the appellant was represented by Mr.

Moses Mkapa, learned advocate and the respondent by Mr. Kauli George

Makasi, learned State Attorney. Although the learned advocate for the

appellant adopted the grounds of appeal filed by the appellant personally,

he proceeded with the appeal on the supplementary memorandum of appeal

he filed. He abandoned the second ground and relied only on the first

ground of appeal. The ground says:

 "T hat th e H on ou rab le tr ia l ju d g e e rre d in la w

a n d fa c t b y co n v ictin g th e a p p e lla n t w ith o u t

ta k in g in to co n sid e ra tio n th e a p p e lla n t's

m a te ria l d efen ce o f "s e lf d efen ce "

In making a submission in favour of the ground of appeal, the learned

advocate for the appellant said that the defence of self defence is availed to

an accused person in the Penal Code. The provisions read:

"Section 18B(1) In exercising the right o f s e lf defence

or in defence o f another or property, a person sh all

be entitled to use only such reasonable force as may

be necessary fo r that defence."

"Section 18B(3) Any person who causes the death o f

another person as a result o f excessive force in

defence, sh all be guilty o f m anslaughter."

The learned advocate said there is no dispute that the deceased died

out of wounds inflicted on his body by the appellant. This evidence is found

in the accused person's own evidence, and the caution and the extrajudicial

statement he made to the Police and the Justice of Piece respectively. He

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said throughout the appellant maintained that it was the deceased who first

abused him claiming that he made PW2 pregnant but he failed to maintain

the child born out of that pregnancy. The deceased was also the first one

to cut the appellant with the "pangaf'. It was in self defence that the

appellant cut the deceased with the " pangsf' in return, the injuries which led

to the death of the deceased. He said the appellant informed the court about

the defence of self defence when the preliminary hearing was conducted as

indicated in the matters not disputed, and which the prosecution also agreed

to by signing the memorandum of matters not in dispute. The learned

advocate argued further that in evaluating the evidence the learned trial

judge did not give the defence of self defence the weight that it deserved.

He said reading from the judgment of the trial court, it is apparent that the

learned judge found himself in a lot of doubts in as far as the prosecution

evidence and the defence of self defence, was concerned, and he sincerely

believed that the appellant was a victim of circumstances. The learned

advocate wondered why, after the learned judge found himself in such

doubts he ended up in saying that the appellant used excessive force in

causing the injuries to the deceased. He said the evidence was supported

by the matters not in dispute and the defence of the appellant supported his

defence of self defence. It was therefore wrong, said the learned advocate,
to convict the appellant with the offence of murder. There was no justifiable

reason for the learned judge to believe the evidence of PW2 that she was

injured by the appellant and in the process of struggling for the "pangaf'

between the appellant, PW2 and the deceased and disbelieve the appellant

while the appellant showed the scar which resulted from the injuries that

were inflicted on him by the deceased. As regards the health status of the

deceased, the learned advocate faulted the learned trial judge for failing to

appreciate the evidence of the appellant that he too, suffered injuries which

were proved by the scar he showed to the trial court. His failure to produce

a PF3 , lamented the learned advocate, was not a reason for not giving the

defence of the appellant the weight it deserved because he believed the

evidence of PW2 much as she did not produce a PF3 to substantiate the

injuries she suffered. After all, said the learned advocate, it was not his fault

that he failed to produce the PF3. It was the Police who had the obligation

to give him a PF3 but they refused to give him one.

The learned advocate went on to submit that the defence of self

defence is accepted only when there is proof that the deceased was the one

who started to injure the appellant. He said that evidence is there. The

appellant testified that it was the deceased who was the first to cut him

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before he retaliated in cutting the deceased and his (the appellant's) aim

was to protect himself. At the preliminary hearing the appellant admitted

injuring the deceased but in self defence. The prosecution accepted it. The

defence was repeated in the defence of the appellant and it is reflected in

both exhibits D1 and DW2. The way the evidence of the prosecution

witnesses was assessed as compared to that of defence, submitted the

learned advocate, was a clear manifestation of double standards in the

assessment of the evidence and it was a discrimination on the part of the

appellant. He cited to the Court the cases of Daudi Sabaya V Republic

[1995] T.L. R.148, Nicco Peter alias Rasta V Republic [2006] T.L.R. 84,

Bukuluku Ndoma v Republic [1981] T.L.R. 53 and Mathayo Mwalimu

& Masai Rengwa v Republic Criminal Appeal No. 147 (unreported) to

support his submission. He prayed that the appeal be allowed, the conviction

for murder and the sentence of death by hanging be quashed and set aside

and be substituted by a conviction for the offence of manslaughter and

punishment be meted out accordingly.

In reply the learned State Attorney was adamant that the conviction

for murder and the sentence of death by hanging which the trial court

imposed on the appellant was appropriate. He reluctantly changed his mind

12
after the Court brought to his attention the matters which were agreed upon

by the appellant and signed by all the parties present in court at the time of

preliminary hearing. It was then he accepted that the appellant should have

been convicted with the offence of manslaughter.

Coming to the determination of the appeal, as we have already said,

there is no dispute that the cause of the death of Hamidu s/o Limbandike

was the injuries that he suffered from the cut wounds which were inflicted

on him by the appellant. The issue before the Court is whether under the

circumstances in which the appellant cut the deceased he was supposed to

be convicted with murder or manslaughter?

The learned trial Judge said, rightly in our view, that eye witnesses to

the circumstances under which the cut wounds were inflicted on the

deceased were PW2 and the appellant. From the evidence that was given

by the prosecution witnesses and the appellant in his defence the deceased

met his death in a quarrel that occurred between PW2 and the appellant.

Apart from the evidence of PW2, who was the only eye witness for the

prosecution, the rest of the prosecution witnesses testified to have found the

appellant being held on the ground by PW2 and the deceased, and PW2 and

13
the deceased were bleeding profusely. The appellant from the period of his

arrest to conviction said he killed the deceased in self defence.

In determining the issue of the defence of self defence of the appellant,

we hold the view that, and with due respect to the learned trial judge, he

failed to solely confine himself to that evidence that was available to him. At

page 76 of the record of appeal he said, and he was quite right, that the

evidence that was available to him in determining the issue was that of PW2

and the appellant. However, the learned trial judge did not do so. At page

84 of the record of appeal the learned trial judge made the following

observation:

"Now I go to the raised se lf defence ...In this case

DW1 said he was attacked by the deceased with a

"panga"and that there was a struggle between PW2,

the deceased and the accused to retain the"panga"

and that he managed to grab it and since it was dark

he attacked them back without knowing where he

was cutting them. However as PW2 said the accused

was the first to attack them not that he was

defending him self. The d efen ce c o u ld not

th e re fo re sta n d a s h is sh ie ld . Though the law

allow s court to consider the facts as the accused

believes them to exist a t the m aterial time, however

this version is quite untrue...The aim is to satisfy

m yself if the prosecution has proved the charge to

the required standard o f proof...it is tru e th e

a ccu se d w as co n siste n t b o th to th e p o lic e a n d

th e ju s tic e o f p eace th a t he a cte d in s e lf

defence. T h is h a s a d v e rse ly a ffe cte d th e c o u rt

d u rin g th e p re lim in a ry h e a rin g (w ith due

re sp e ct) w here it sh o w s th e issu e o f s e lf

d efe n ce w as am ong th e u n d isp u te d fa cts. T his

h o w e ve r d o es n o t a lw a ys m ean w h a t h e sa y s

m u st be w h at h ap p en ed on th e

sce n e ...A lth o u g h th e p ro se cu tio n s a id h e w as

n o t h u rt, h o w ever th e e x p la n a tio n g iv e n

su g g e st h e w as a lso th e v ictim o f th e in cid e n t.

I have also considered the possibility that since the

wedding was on Sunday and the incident occurred

on T hursdaythe witness (PW2) and the deceased

 sensed danger. From the accused that he m ight

cause havoc on the wedding day because PW2 said

he used to go to their neigbour and insulted her. This

however was ruled out because PW2 said he was not

aware o f the intended wedding. Another point I have

considered is that if the accused had intended to do

harm he could have done so and run away.

H o w ever th e ta rg e t w as th e d ece ased w hom

th e y w ere n o t in g o o d term s a s th e a ccu se d

n e v e r g re e te d him even w hen he w en t th e re ."

[Emphasis is ours].

What guides the trial courts in determining the issues brought before

them is neither the sentiments of the trial magistrates or judges nor

speculations. We reiterate that it is the evidence which must always be

assessed well and fairly in compliance with the relevant law. In this case,

the issue of self defence of the appellant was determined by the learned trial

judge on sentiments and speculation instead of confining himself to the

guiding principles. In the case of Ngassa Kapuli @ Sengerema V

Republic, Criminal Appeal No. 160"B" of 2014 (unreported) we held that:

16
 " The right to a fa ir tria l is an essential component to

the rule o f law...As a minimum the right to fa ir tria l

includes:-

1) The right to be heard by a com petentim partial

tribunal.

2) The right to public hearing.

3) The right to be heard within a reasonable time.

4) The right to counsel

5) The right to interpretation."

In this case the parties agreed in the preliminary hearing that the

appellant killed in self defence. If the prosecution intended to dispute that

the appellant did not kill the deceased in self defence, they should have told

the trial court so when the preliminary hearing was conducted. They should

not have waited until the trial started and then claim otherwise than what

they had agreed upon. It was therefore wrong for the learned trial judge to

give the remark that by the parties agreeing that the appellant killed in self

defence the court was adversely affected. The trial court is always neutral

and it has to retain its neutrality all the time. That remark was his sentiments

17
and they impaired the principle of impartiality of the trial judge. The judge

should not at any time have any interest in the matters they preside over.

Their role is to do justice to both sides. It is therefore important to retain

that impartiality from the start of the trial to the conclusion of the same.

Another aspect of speculation manifest in the trial is at page 79 of the record

of appeal. The learned judge in considering the injuries inflicted on the

deceased and the one suffered by the appellant said:

" There is a difference in the manner o f their wounds.

PW 2's wounds show the front parts while the

deceased's scar is a t the m iddle a t the side o f the

head. The cut wound is not straight as opposed to

PW 2's wounds which no doubt were inflicted by a

"panga". Though the accused says he was hurt by

the deceased when he was not facing him, I believe

possibly he was hurt by the deceased after he had

inflicted a fatal blow to the deceased and when he

had fallen down and overpowered. I say so because

the accused adm itted PW2 is shorter than him. The

18
 deceased whom he said was taller than him fe ll down

after he slashed him with a panga."

The remarks made by the learned judge on how the appellant

sustained injuries was his speculation. In his defence the appellant said it

was the deceased who started to cut him. PW2 said the appellant left her

and cut the deceased when he arrived at the scene after PW2 had called him

and told him that the appellant was there with a y'pangd'. The learned judge

should have focused on the evidence of the two witnesses and make his

finding on their evidence and not to speculate on what could have happened.

Moreover, at the time he was assessing the extent of injuries suffered by the

trio, that is the deceased, the appellant and PW2, he had no opportunity to

physically see the wounds which the appellant caused on the deceased. His

consideration of the wounds the deceased suffered should have been guided

by the post mortem examination report (exhibit PI). There is no evidence

on record on source of light at the time of the commission of the offence.

That is one.

Second, in making a comparison between the evidence of PW2 and

the defence of the appellant, the learned trial judge believed the evidence

of PW2 and disbelieved the defence of the appellant. It was important for

19
him to give reasons. It was important because he also expressed doubts on

prosecution evidence on whether the "pangaV that caused the injuries to the

deceased and PW2 belonged to the deceased or the appellant and whether

the deceased, given his health condition, could hold a "pangsT. He did so

when considering the defence of provocation that the appellant raised. At

Page 78 the learned trial judge made the following remarks:

" The evidence o f PW2 again shows that her father

responded after calling him baba ....She then told

him Mr. Kavai has come with a panga. That evidence

alone shows the accused went there armed. Though

even PW2 adm its never saw the accused before

owning that panga during their m arriage however

that does not negate the possibility that he could

have gone there armed. It is no wonder when PW2

said that the accused person had a tendency o fgoing

there drunk and utter abusive language but always

unarmed. No one can judge the intention o f the

g u ilty m ind...I t is tru e it can b e a rg u e d th a t it

w as n ig h t tim e w ith o u t a n y so u rce o f lig h t a s

in d e e d PW 2 sa id , however she concluded he had

a "panga" after she was slashed with it. The

argum ent by the accused that it was the deceased

who came with the "panga" is unassaiied because

even before the deceased had come to her rescue,

PW2 had already been cut with a "panga" by the

accused on several parts o f her body. There is no

reason why PW2 could manufacture a story against

the accused whom they happened to g et a child

together "baba m toto"...I cannot base m y finding on

the prosecution argum ent that the "panga"belonged

to the accused person by a sim ple reason that the

deceased by being lame was incapable o f holding the

said "panga". Or the accused's argum ent that since

the deceased though lame used to cultivate and cut

trees and therefore he was capable o f holding a

"panga "and on that day did hold a "panga ". To ru le

fo r o r a g a in st w ill be a m ere sp e cu la tio n . To

say whether he could hold it or not is a non issue."

 The learned trial judge showed that the offence was committed at

night. There was no evidence to amplify on the source of light. He doubted

the version of the evidence that was given on who was the owner of the

"panga". He admitted that the appellant too suffered injuries during the

commission of the offence. In criminal trials, the general rule is that it is the

prosecution and not the accused, except for exceptional cases, who has the

burden of proving the case against an accused person. The cases of Joseph

John Makune v Republic [1986] T.L.R. at page 49, Mohamed Saidi

Mtula v Republic [1995] T.L.R. 3 and Antony Mutafungwa v Republic

Criminal Appeal No. 267 of 2010 (Unreported) are some of such authorities.

Where there is doubt, it is always resolved in favour of the accused person.

That principle apart, in this case the defence of self defence was raised and

accepted by the prosecution itself. The learned trial judge ought to have

convicted the appellant with the offence of manslaughter and not murder.

In the case of Sabaya v Republic supra, the appellant was a

watchman of a "shamba". He found a thief in the "shamba". After he had

chased him for a while the thief turned against him holding a knife. The

appellant inflicted serious cut wounds on him and he subsequently died. His

conviction for murder was set aside. The Court held that:

22
 " The appellant used greater force than necessary in

the circum stances; he should have been found

g u ilty o f m anslaughter."

A comparative circumstance where the defence of self defence cannot

be availed to an accused person was given in the case of Nico Peter alias

Rasta V Republic (supra). In that case the evidence did not show that

when the appellant stabbed the deceased, he was repelling an actual attack

from the deceased. The facts are distinguishable from this case and the

case of Sabaya supra. In Bukulukulu Ndomba v. Republic (supra) the

Court in stating the circumstances under which the defence can be raised by

an accused person said:

"where s e lf defence is pleaded, the conduct which

induces the fatal blow injury m ust have come from

the deceased and not from some third person."

This Court being the first appellate Court, we have given due

consideration to the evidence adduced in court during the trial. We are

satisfied as argued by the learned advocate for the appellant and conceded

to by the learned State Attorney that the appellant ought to have been

23
convicted with the offence of manslaughter and not murder. Consequently,

we allow the appeal, set aside the conviction for murder, and substitute it

with the conviction for the offence of manslaughter under section 195(1) of

the Penal Code. We also set aside the sentence of death by hanging.

Considering that the offence was committed on 2nd November, 2012 and the

appellant has been in remand since then, we impose on the appellant a

sentence of five years imprisonment.

DATED at MTWARA this 28th day of July, 2016.

N.P. KIMARO
JUSTICE OF APPEAL

\ \ S.S. KAIJAGE
5
%
i z|| JUSTICE OF APPEAL
I N I ---------------------------------------

S.A. LILA
JUSTICE OF APPEAL

I certify that this is a true copy of the original.

COURT OF APPEAL

i'
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