Mwita Mgaya Nyamutiba vs Republic (Criminal Appeal No. 688 of 2020) [2024] TZCA 1138 (4 November 2024)

IN THE COURT OF APPEAL AT MUSOMA CORAM: MUGASHA. J.A., KITUSL J.A. And MASHAKA. J J U CRIMIAL APPEAL NO. 688 OF 2020 MWITA MGAYA NYAMUTIBA......................................................APPELLANT VERSUS THE REPUBLIC... ........... . ........................................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Musoma) (Tiganqa, 3.) dated the 11th day of November, 2020 in Criminal Sessions No. 137 of 2018 JUDGMENT OF THE COURT 23rd October & 4th November, 2024 MASHAKA, J.A.: The appellant, Mwita Mgaya Nyamutiba was married to Christina Mwita Mgaya @ Rhobi since 1990 and were blessed with ten children; Samwel Nyamutiba Mwita (PW1) being the eldest. On 5thJanuary, 2018 at Kitagasembe village within Tarime District in Mara Region, it was alleged that the appellant murdered his wife. He was charged before the High Court of Tanzania sitting at Musoma for the offence of murder contrary to section 196 of the Penal Code [CAP 16 R.E. 2019]. The trial

ensued and the appellant was convicted for the said offence and condemned to the mandatory sentence of death by hanging. The prosecution presented two witnesses, namely Samwel Nyamutiba Mwita (PW1) and Gabriel Nyamuhanga Monanka (PW2) and two documentary evidence; apart from the report on post mortem examination (exhibit PI), the cautioned and extrajudicial statements of the appellant were collectively admitted in evidence (exhibit P2). On the part of the appellant, he gave his defence evidence on oath and called no witness. Before canvassing the complaints raised by the appellant, we find it desirable to give a factual background as gathered from the evidence on record. A tragedy was looming to strike the family of the appellant on 5th January, 2018. On that day, PW1 the elder son of the appellant visited his mother (the deceased) who was living together with the appellant at the deceased place's. He was called by the appellant to reconcile an ongoing wrangle between his parents as the appellant wanted to sell a piece of land for the purpose of remarrying, a fact which was not acceptable to the deceased. The deceased was disputing the

sale of the said piece of land. It was the evidence of PW1 that it was not the first time to resolve the dispute between the appellant and deceased. After dialogue between the appellant, the deceased and PW1, he offered a suggestion that he will give the appellant a cow to sell and raise money he was in need and promised not to sell the piece of land. The deceased was of a firm standing that the land cannot be sold as there are other children who were dependent on it. The appellant was furious and threatened to kill his wife. PW1 asked the appellant why but he did not reply. Recalling what he had told the deceased about his promise to give the appellant a cow and had agreed, still her mother was unyielding that no piece of land will be sold. Upon that promise by PW1, he left the duo in harmony, her mother was peeling beans and he went to his shamba. While, at his shamba he felt some bad premonition which he heeded to and rushed back to his mother's home. When he arrived, he called her but there was no response. On his way home to return his hoe, he saw his father leaving his mother's house going to the shamba and also saw his mother lying down besides the beans. PW1 went where his mother laid and discovered that her neck had been cut more than once. That day was

the last time PW1 saw the appellant leaving his mother's place and never saw him again until he saw him in the court room at the trial.. The appellant was at large until 7th January, 2018 when he surrendered to PW2, the Village Executive Officer and was taken to the police post where his cautioned statement was recorded. Later, he was taken before a justice of peace who recorded his extrajudicial statement. In both statements (exhibit P2 collectively), the appellant confessed to have killed his wife and mother of PW1. He was therefore, charged with the offence of murder. In his defence, he admitted having quarrels with his wife (the deceased) since 2017, for the reason that he was denied conjugal rights and food, also, the deceased had told him that she had another man. He also admitted that on the fateful day, he quarreled with the deceased and their son appeared to reconcile them. He contended that after his son left, the deceased denied him food, which angered him and he threw a panga at her. The panga landed on her neck causing severe bleeding and her death. He stated that it was not intentional. The trial court based its decision on the contents of exhibit P2 collectively which were admitted during trial that the appellant actually

killed his wife. On the issue of malice, in line with section 201 of the Penal Code, the trial court rejected the appellant's defence of provocation on the ground that there was a contradiction in his statements and the evidence in court on what transpired on the fateful day suggesting lies on his part and therefore found him guilty. He was convicted and sentenced as alluded to earlier. Aggrieved, the appellant lodged three memoranda of appeal. Two substantive memoranda dated 28/04/2021 and dated 17/10/2024 with four grounds and two grounds respectively. A supplementary memorandum of appeal with two grounds was lodged on 07/02/2024. The said grounds of the substantive memorandum dated 28/04/2021 read:

1. That the whole case was not subjected under leg al qualified Investigation process I.e. by the Police Force or other authorised organ; equally m alicious aforethought and actus reus were wrongly and unfairly drawn and established thereof
2. That, the tria l court wrongly com posing strong conviction o f m urder w ithout any scie n tific connection/report to which either an axe o r

machete were exactly used by the deceased or accused/appellant as fa r as both parties proved to be engaged on fam ily conflict , ; 3 , That the charge o f m urder was not proved to the h ilt rather a m anslaughter as was established by the defence case p lu s the appellant's conducts pre and after crim e and arrest 4. That, both conviction and capita! sentence was wrongly hinged on the case which was not leg ally investigated, thus led to injustice. While the grounds in the memorandum dated 17/10/2024 state:

1. That the tria l court erred in law to allow assessors to cross examine witnesses fo r the parties a t the tria l
2. That the tria l court wrongly convicted the appellant with the offence o f m urder instead o f m anslaughter in absence o f m alice. The two grounds in the supplementary memorandum state:
3. That the tria l court overlooked in law and fact to re ly and act upon a ll documented exhibits which were not audibly read out soon after been adm itted. Therefore, the appellant defence was

only supposed to be relied and acted upon w ithout com paring with the docum ented exhibits to weigh the appellant defence credibility. 2. That, straw o fprovocative actions was enough to warrant a m anslaughter conviction and not otherwise. This was supported even by appellant's son and the words o f the deceased before her death. See the case o f M a th ia s M asaka vs. R e p u b lic, Crim inal Appeal No. 274 o f 2009- CAT Tabora (unreported). At the hearing of the appeal, the appellant was present in person, represented by Mr. Juma David Mwita, learned advocate whereas the respondent Republic was represented by Mr. Ibrahim Isihaka, learned State Attorney assisted by Ms. Agma Haule and Ms. Beatrice Mgumba, learned State Attorneys. At the outset, Mr. Mwita clarified to the Court that there are two memoranda of appeal dated 28/04/2021 and 17/10/2024 respectively and a supplementary memorandum of appeal dated 07/02/2024. He pointed out that he will submit on ground 3 of the memorandum dated 28/04/2021, ground 2 of the memorandum dated 17/10/2024 and ground 2 of the supplementary memorandum. He commenced that

although the appellant admits to have murdered his wife Christina Mwita Mgaya @ Rhobi on 5th day of January, 2018, it was without malice aforethought. He contended that the appellant committed the act due to an ensuing quarrel with the deceased for a period of time. Mr. Mwita prayed to the Court to expunge exhibit P2 collectively which were not read out after its admission during preliminary hearing. If expunged, and bearing in mind there is no eye witness, he argued that the only evidence left is that of PW1 and DW1. He contended further that even PW1 knew about the dispute between his parents and he was called by the appellant to settle it at the place where his wife had been staying after leaving his home. Mr. Mwita submitted that in his evidence, PW1 did not state if the appellant was in possession of a weapon. It was his contention that the trial court erred to convict the appellant with murder because the killing was accidental. He implored the Court to allow the appeal. Ms. Mgumba in reply, opposed the appeal and submitted that the appellant killed his wife with malice aforethought and as stated by PW1 and PW2. She argued that PW1 had testified at page 24 of the record that the appellant was furious and threatened to kill his mother

concerning the dispute on the piece of land. Further she submitted that the evidence of PW1 and the appellant was corroborated by PW2 that there was an ongoing dispute between the appellant and the deceased on the said land and Ms. Mgumba conceded to the procedural irregularity on the omission to read out exhibit P2 collectively hence it deserves to be expunged. We so find and exhibit P2 collectively are expunged from the record because it is settled law that after a document is admitted in evidence, it must be read out to the accused person. In a nutshell, the remaining contentious issue for our determination is whether the appellant killed his wife without malice aforethought It is not in dispute that Christina Mwita Mgaya @ Rhobi wife of the appellant is dead and the appellant killed her on 5th day of January, 2018. He contests that he did so without malice, he was provoked. Commencing with the first limb as to whether the defence of provocation stands. The trial court rejected the defence of provocation on the ground that there were contradictions in his evidence and the confessions which we have expunged.

The question to be answered is whether the defence of provocation can salvage the plight of the appellant. The defence of provocation is stipulated under sections 201 and 202 of the Penal Code that: " 201 . When a person who unlaw fully k ills another under circum stances which, but fo r the provisions o f th is section would constitute murder, does the act which causes death in the heat o fpassion caused by sudden provocation as defined in section 202, and before there is tim e fo r h is passion to cooi, he is g u ilty o f m anslaughter only. 202 . (1) The term "provocation"m eans, except as hereinafter stated, any wrongful act o r in su lt o fsuch a nature as to be likely, when done to an ordinary person, o r in the presence o fan ordinary person to another person who is under h is im m ediate care, or to whom he stands in a conjugal, parental, filia l or fraternalrelation, or in the relation o f m aster or servant, to deprive him o f the pow er o f self-control and to Induce him to com m it an assault o f the kind which the person charged com m itted upon the person by whom the a ct o r in su lt is done o r offered".

In Batram Nkwera @ Mhesa v. Republic, Criminal Appeal No. 505 of 2022 [2024] TZCA 720 (14 August 2024 TANZLII), we had this to say: "In term s o f the above provisions, the defence o f provocation can only s a il through once the court is satisfied that the words uttered or conduct dem onstrated by the deceased were provocative to an ordinary person o f the com m unity to which the appellant belonged. In severaloccasions, this Court, has pronounced its e lf on the applicability o f the above provisions. See fo r instance, the cases o f M oses M u n g asian i L a iz e r A lia s C h ich i v. R e p u b lic [1994] TLR 222, N yakua O rondo v. R ep u b lic, Crim inalAppealNo. 141 o f 2002 (unreported) and S a id i K ig o d i @ S id e v. R e p u b lic, Crim inal Appeal No. 281 o f 2009 [2011] TZCA 137: [1 Ju ly 2011 7]. In the latte r case, th is Court held that: "we are o f the firm view that the defence o fprovocation is available to a suspect who k ills a t a spur o f the moment, in the heat o fpassion before he has tim e to cool down ." In this instant appeal, PW1 and PW2 confirmed that the deceased and the appellant were in constant squabbles. Nonetheless, the appellant was patient enough to even involve PW1 in his efforts to reconcile and li

solve their current dispute. The appellant pointed out some of the point of departures to be denial of conjugal rights and food. However, PW2 stated that when he visited his mother, she found her eating makancfea staple food and gave him too. Soon thereafter, the appellant arrived and the deceased offered him the same food. Thus, there was no such denial of food as raised by the appellant. The appellant in his defence stated that the conflict with the deceased started in 2015 and he later complained to PW2. The appellant stated that, when he demanded food, the deceased told him the following purported provocative words gleaned at page 34 of the record of appeal; "ni/fsha kwambia usiniulize habari ya chaku/a kuna mtu mwingine ambaye n/nampa chakufa". Can we say that the purported uttered words were provocative to mount a valid defence taking into consideration PWl's evidence that her mother also gave the appellant food when he requested for it that day. The answer is in the negative as it is apparent from PWl's credible evidence that he saw his mother giving food to the appellant. In consideration of PWl's evidence, there was no provocation whatsoever as they had reached a consensus that instead of selling the piece of land, he offered a cow to the appellant who accepted

it. Thus, we agree with the trial court's finding that the defence of provocation cannot stand. On the second limb, the trial court considered malice aforethought in line with the case of Enock Kipela v. The Republic (Criminal Appeal No. 150 of 1994) [1999] TZCA 7 (10 June 1999 TANZLII). From the totality of the evidence, the learned State Attorney maintained that the prosecution proved the offence of murder taking into account, that the defence evidence corroborated PWl's evidence on the malice aforethought to kill the deceased. To bolster her arguments, she referred the case of Charles Bode v. Republic, (Criminal Appeal No. 46 of 2016) [2019] TZCA 361 (10 March 2019 TANZLII) where the Court set out factors which can ascertain that the killing of the deceased by the appellant was committed with malice aforethought. It was her contention that the factors set were met in this appeal as the appellant used a panga (machete) to strike the neck and not any other part of the body of the deceased. Whether or not the appellant had that intention must be ascertained from various factors, including the nature of the weapon, if any, used in the attack; the amount of force applied in the assault; the

part or parts of the body on which the fatal blows were directed at or inflicted on; the number of blows, although one blow may be fatal, depending upon the facts of the particular case, be sufficient for this purpose; the kind of injuries inflicted; the attacker's utterances, if any, made before, during or after the killing; and the conduct of the attacker before and after the killing. See for instance, Enock Kipela v. Republic (supra), Charles Bode v. Republic (supra). In the present case, the evidence which was rightly accepted by the trial court in our opinion proved that the appellant used a panga (machete), which he wielded with his hands, and inflicted a cut on the neck of the deceased. The deceased bled profusely and died instantly. At page 35 of the record of appeal when cross examined by the learned State Attorney, the appellant said: "I heard what PW1 said that I killed. W hen th e w om an d e n ie d m e food, Ig o t fu rio u s. I sa w food . W hen I th re w a panga, th e d eceased w as s ittin g . She w as so rtin g th e beans. W hen I th re w th e panga, it d id c u t h e r on h e r neck. W hen I th re w th e panga, it w en t to th e d ire ctio n w here I in te n d e d to th ro w ".

[Em phasis added] He further qualified that: "When I d id cut her neck, the bieeding started slowly. I did not hold her because I was fearful. I kn ew th a t th e deceased w ou ld d ie lo o k in g a t th e flo w o f th e b lo o d " (Em phasis added) Taking into consideration how the deceased met her death, there is no doubt in our mind that the appellant intended to kill the deceased. The appellant used a panga to cut the deceased's neck which was completely severed from the spinal cord hanging connected to the body by the skin, causing severe bleeding. Thereafter, the appellant's conduct raises eyebrows. He ran away from the scene of crime leaving behind the deceased who was severely injured and her life was in danger. He did not bother to assist her instead; he left her to bleed to death. This negates the alleged accidental killing as suggested by the appellant. As discussed, we find no justification for doubting that in attacking the deceased the appellant intended to kill her. We are of the firm view that the appellant caused the death of the deceased with malice aforethought. In the same vein, we are satisfied that the trial court was 15

justified in holding that malice aforethought was proved beyond reasonable doubt. The conviction for murder and the statutory sentence of death was properly grounded. We accordingly dismiss the appeal. DATED at MUSOMA this 4th day of November, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL The Judgment delivered this 4th day of November, 2024 in the presence of the Appellant in person un-represented and Mr. Michael Kayombo, learned State Attorney for the respondent / Republic, is hereby certified as a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL

part or parts of the body on which the fatal blows were directed at or inflicted on; the number of blows, although one blow may be fatal, depending upon the facts of the particular case, be sufficient for this purpose; the kind of injuries inflicted; the attacker's utterances, if any, made before, during or after the killing; and the conduct of the attacker before and after the killing. See for instance, Enock Kipela v. Republic (supra), Charles Bode v. Republic (supra). In the present case, the evidence which was rightly accepted by the trial court in our opinion proved that the appellant used a panga (machete), which he wielded with his hands, and inflicted a cut on the neck of the deceased. The deceased bled profusely and died instantly. At page 35 of the record of appeal when cross examined by the learned State Attorney, the appellant said: "I heard what PW1 said that I killed. W hen th e w om an d e n ie d m e food, Ig o t fu rio u s. I sa w food . W hen I th re w a panga, th e d eceased w as s ittin g . She w as so rtin g th e beans. W hen I th re w th e panga, it d id c u t h e r on h e r neck. W hen I th re w th e panga, it w en t to th e d ire ctio n w here I in te n d e d to th ro w ".