Mwilu Benard vs Republic (HC Criminal Appeal No. 59 of 2000) [2000] TZHC 382 (28 November 2000)

IN TE HIGH COURT-- OF TANZANIA AFIPELL TE JUHI SDI CT TON FIGH COURT CRIMINAL AThEAL N0059 OF 2000 (Original CrimalCae•No0.2O of 1999 of the District Court of Musoma District at Musoma0 Before J0JJ 0 Mayaya, Esq0SDM) MWILUBEN&PD OOOOOO O O O O O O OOOO O APPELLANT (Or:iiginal Accused) Yersus TRE REPUBLIC 00000000000000006 RESPONDENT (Origiflal Prosecutor) J U D G N B N T The appellant was chared and prosecuted for the offence of causing grievous harm 9 contrary to section 225 of the Penal Code0 She had attacked a lady 9 Eliza Sarmel, by cutting her with a panga on the head. twice, claiming she had found the latter committing adu]tery with her husband0 The person she said was her husbanu was not in fact her husband but merely a former paramour and they were not even living together but had parted company three years earlier0 So, the fact that appellant inflicted cut wounds on Eliza was not really disputed0 The trial court in its judgment found as a fact that appellant had indeed inflicted cut wounds on Eliza but also fouiid that the injuries suffered by Eliza did not amount to grievous harm but to mere wouidng0 o, it convicted the appellant for the offen :of.tinlwful wounding and sentenbed her toprisdn tem of two years0 The appellant was not satisfied that she should have been convicted and sentenced to two years imprisonment0 So, she appealed to the High Court0

• 2 -. ThisppaJ. has no merit0 As already said, the man in whose house Eliza was found by appallant was not appellantts husband and even if he wero provocation, if that was what 'the ,appollant was relying on, is only available to an accused in a murder case, helping to reduce the charge of rnuider to naalughter0 It is not a defence in any other Criminal change although it may provide a mitjgating circumstance when considering a suitable. sentence to impose0 The appeant was properly convicted0 The sentence of two years.: irnprisonment may perhaps be a little on the high side but no exc Cssive as to justify interference by this court0 In fact, the appellait was lucky she was not convicted for causing actual bo.dily.mor.which she could have been :i-b1e to a sentence of five years imprisonment0 IBesices, she snould consider herself lucky she was not ordered to -pay the vi,c tim compensation0 When I heard this appeal yesterday I dismissed it in its entirety and rcserved reasons which I have now endeavoured to give0 . ... . ........ J. A. •NROSO ... . .. DGE.