Republic vs Elidaimu Kiondo (Criminal Sessions Case No. 48 of 1989) [1990] TZHC 468 (24 October 1990)

~ ...... _ .. IN THE HIGH·COURT'OF TANZANIA l ', '. j ... .... , ... . : .. :· .. .,,..: ... : AT IOSH!.~ _CRIGINAL JURISDIC.TION. (ARUSHA REGISTRY) CRI~_INAL SESSICNS CASE NO. 48 OF 1989 • ... . 1.,," THE . REPUBLIC.

1. , •. ve-'s'us'· ,i" ,·:, ;, : ·.< (;. ·:.'> E-LI1lIMt(s/o·"'ki'oNDO •.. •, ; '.· , "t.{ . . . t ~ .. i: . f:! .. :' • .-:.: : C, • , MKWAWA•,.'· A@;_. J'' .. ' . ·' ... l., ; ~ :.1 .. •• ,: .' . • :: •• .. ~ 1 •1, • •• '• t~!•' I ! • • : • r,I ,• ,. •• , ... · · . The' aocu.sed ELID.AIMU_KI0ND0 .stands chargd of ·murder· contrary sectio •. ·:i_·i : .· :i 1.96 o:f the 'Penal ·cod~ ..... ·. ' ,;·:.i,:··. ·; · : .·,•, .. !,". ·/ ·"'Itb•ti:o,/4,s·,·m~·t:o!'letsmr•i·ght f'rom)he;out·set that this is a very q:9~·, .. c,ase. The i°acts of t4is- cas€' are ver.f' simple and ,can cnveniently :,-be- stat"d·aS follws~. hf t'CE'qSec'b ,an·airriost ten,.month'·S old child is the son of the acousd. It is not in ·-dispute that ·on. the 22nd Febrllary, I . ;:_;1988 the' acc\£sd wh~ ··Is a rsidet: of. M.Arembi .Kira"ng~· vill~ was ' t . ~ ~ • .. . . in ·ti'is: house •. ·'11:h~ de.oeasd ,-rn also there in''the··compan;r· of. heir sisters. ' ,... • '' ~ • 1t • . • • : ~ ' • • • . : -•.:·, It is in •the evidence of.· PW2 · NEE~.l'· the daughter of the aoo1.t.d that the :COWied• as'ke·d 'fie. t O bing · aown a Qottle of pestfot'de ;hemi~~-11:o, . nown as' ''feritit'hion'~~,sSbhthat- he g·oes rind kre-y his cof-''f'ee nlanh. : It·:_ is· in her tetim.ony __ ·t,at 'in th mean tiine the_ accusd:: had. go11e . .. . ... into hie bed rociin;.and· took-' his afternoon nap, ft is in the evidellO,$ :i•: of. PW,2 that he ha<aiso goe ·t~~-;Jjilgwater that wae to be us'ed in m-otning· with :the pesticide before l_.. it for spraying. • It is common ground that the bottle containing the deadly poisOll..C»d' substance was kept at a table which was withi ebr l'e<ach. lt would appear the :;·--; I deceased who was in copariy of her alm()! 2 years old sister and . ..... . ... ·-· . . .. ·-· ... ,.. another sister who is aged l3 years. old. mu.s·t ·have got access tc the . . poisonou.s substance and took it into hie mo1.tth. PW 2 who hd:·,returned ... from· f P't<"h.f.ng water found the deceased !011111'-$" in the mi:?uth It was then when she raised an alarm . which was .. responded ·'by the accused. who '•, ~ • ' • ,. • • I • had been 1¥3ving ails afternoon. ape It i. -common gl'oilnd ·that the mother h&od nt 4 at home when all this happenfd• She was howvPr in the neighbo~ hav~ plait1nss her hair. and notified his wife who ........ ; ·. • The accused .. upon seing w~at has happened went wit!} PW l KASIATU rushed the child to the . . . . I . ; • • • • • • • • .. • • • • • • • • 2 \

,. i, •a ,2 dispens2l"y where he was atteji,ed and subsequently discharged. It is :o.='· common ground that the deoeased expired Oil_ the following day. The accused was then· arrested•,and had the present .pt•ooeedings instituted against him, · · · ' .. , - .. ,. .-.,. .......... ,. The accused who gave a sworn stat.ement denied having caused the death of his own last born son. He also denied being negligent 1n tbe way he delt with the poison1;,uf3 sustar:ioe •. _.:•In .his t£1stimony he told . . ' . . . ... the court that on the material date he had been -bricklaying in a village self-help scheme where they ar building Primary Schoo~. ' . .:::: .... : .. ::..' .. '. When· he returned home sometime in the afterrtoon he ate his _lunch and asked PW2 his doughter to bring down from the cealing l'l.is· pes-t-iilde .. As he was tired he retired into his bdroo- ~~d·hd hls afternoon na~~ ~ . ' . ' ' . ' He was inerrupted from· his nap by hue and cy of: his daught'brt t He •,;. ·.•, •, . ..' . : . · • • ~ f I , •· ... ~ .', ' • ~ ;_:-. ·, .. wake up and found the deceased f:oaming in the inoutti. •;He· realised that . h;t \he child mu:•t' have taken 1 the poisdns'' subtance •. H .'th.en t'UShed •,.,.:• t'! ·;I•, • ,,! • . . ::~ .. ..;, te child to his wife who took the child·t the isoenst~. ··,r: ~ ·. . .. ~ ·,· .: ·: . . .. .) • .. : ,, All the assessors were of the vlew that the accused was not .· .. t)i , .. .. . . . ' .· . - . culpable and advised that he be -acquitted.· I" '. ' •_· • ; •• • .•. !'\I> • • •,J ': . j r·• I have c_a:r:efully eva_luated the ·evidence of the base as adduced by . ' ~ .• ..... •. .. . :---· .. ,.' both sides I must say that 'r am,. like the assessors, satisfied that :,•:,. ... • I ,,-.,tJ \ the accused •s guilt has not been pr.ovea·. · As there h:as ben nothing in . . ·) · . . .. . ·, . ' . . evidence to 'show that the. cc used was awa'e of the presence of the . . . . p·o.isonous subtance as ·h as havig his· nap; I can not find· :him • • f. • t • • ; • . t' ,: • ~ ••• ,.. • } .... ~ • culpable of the offence. As there_ 'is· no evidence of intent I will . ·_ ' ~ . "! :.::~--J "' . i hold that this element has:.:ri'ot· ·oeeri estab1ished. ':. :1 . - . ;. . . :- . ·, In the result, I hereby"acquit the accused of the charge., The accused is to be set at libey unlesJ ·i;wfuliy · held upon on other .... purposes •. At 3.)0 J .J-. MKWAWA, . } .. , A[$• . J U D a· E~ 'ii :;, 24/10/i990.· Coram: • As before Mr. Mono for the Republic Mr. Shayo for the .Acot1sed. Accused: ·Present .... : ~- .· .· . : - All Assessors are P!esent, 0 ... • I'\ ••••

.... 3 The j11dgment is read in ope·n 0011rt this 24th day of October, 1990 · at Same. The assossors are thanked. I herebJ o~rtify this JJM/vm J .J •. MKWAWA, Ago JUDGE. 24/10/1990. to'be ~~opy of the Original, (M.L.K. Kannonyele) DISTRICT REGISTRAR, ./\RU'SH.A.