The accused was charged with the murder of Mrimba Matonya. The accused lived at Manzase with his wife. For about four months before the events which led to this change he had suspected her of infidelity. He thought she was having an affair with an Mgogo man and had reported the matter to Mwajuma Athumani who was the ten cell leader of the area. Mwajuma called the wife, Elizabeth, and spoke to her but she denied the affair. There was, however, clear evidence of some degree of familiarity between her and the deceased. Juma Issa, a bar man at a Manzese bar, says that he knew Elizabeth and the deceased quite well and that he saw them frequently at the bar. Usually they arrived together and left together. On the 2nd June, 1968 they came together at about 8 p.m. and sat in the compound of the bar drinking. He left them there to go to purchase cigarettes. When he returned about 9.15 p.m. there was a great deal of commotion about the bar. He saw the deceased lying near a house which is adjacent to the bar. He had a stop wound on his chest and was bleeding heavily. On that very night the accused called at Mwajum’s house at about 9 p.m. He had a knife in his hand. He told her that he had found the people for whom he had been looking that he had stabbed them. She enquired who the persons he meant were. He said his wife and the Mgogo man. The following day the accused made a statement in which he said that for some time his wife had been in the habit of sleeping away from home without telling him where she was going. Eventually he received information that she was having an affair with Mgogo man. He reported the mater to the authorities and also confronted the Mgogo man who said that the accused could not really do anything about the matter and that he as an old man should leave the young people alone. He went on to say that on the night of the incident he went to that particular club and saw the deceased with his wife embracing each other in the darkness. He told the deceased that only the day before yesterday he had told him to leave his wife alone. Thereupon, in his own words, “By bad luck my reason was suddenly upset and I became suddenly angry as I had warned them many times before. I stabbed him with the knife and my wife as well”.
Held: (1) “Although this was a comparatively simple case there were a number difficulties in the course of hearing …… Through an oversight no
evidence of the identification of the body was led. Despite [defence counsel’s} objection I allowed the deposition of the identifying witness, who was absent, to be read in order to supply what was clearly a deficiency in the case for the prosecution. I am satisfied that I was entitled to do so under section 151 of the Criminal Procedure Code”. [Citing: Juma Ali v. R., (1964) E.A. 461; Omari Abdullah Awadh Maalim v. R. (1964) E.A. 672].
“It is urged on behalf of the accused that he acted under provocation in this case and for that reason the offence should be reduced to manslaughter. It is accepted that finding one’s wife in the act of adultery is grave provocation which can reduce a killing done in the heat of the moment from murder to manslaughter. Similarly it has been held that a sudden confession of adultery itself might be held to be provocation of a serious nature enough to reduce a killing to manslaughter. Here the unfaithful wife and her lover were at
was that the accused was provoked. I directed them that they should ask themselves whether or not the deceased had been guilty of a wrongful act towards the accused in being seen with her in circumstances indicating much familiarity between them at a pombe shop. I also directed them that they should consider whether they thought if this was a wrongful act, it was one which could cause the accused to lose his temper and assault the deceased in the manner in which he did. The first assessor made it clear that the thought it was a wrongful act and that it could provoke an assault of the type committed In this case. The second assessor was not as clear in his opinion and seemed rather to rest his decision on a finding that there was not intention to kill. Since issues of provocation are predominantly issues of fact I would hesitate to disagree with the finding of the assessors that the conduct in this case was provocative. It is, I think, plain in this society that as association between a man and a woman on terms of friendship and companionship, exclusive of sex, is not easily understood. I would think that the presence of the accused’s wife at a pombe shop drinking with the deceased would have led the ordinary person in the society to infer in the absence of any other relationship between them that there was a sexual relationship. Added to this was the fact that the accused’s wife on a number of occasions in the last four months slept away from home. There was also the remark alleged to have been made by the deceased that the accused as an old man should leave the youngsters alone. It is possible, as the accused said, that the sight of two of them behaving familiarly in the pombe shop should have upset his self control and caused the great anger which led to the single knife wound. In these circumstances I accept the opinion of the assessors and find the accused not guilty of murder as charged but guilty of manslaughter”. Accused sentenced to five years imprisonment.
