R. v. Madirisha s/o Kitikiti, Crim. Sass. 163-Iringa-68, 23/2/69, Duff J..

The deceased
Ephraim s/o Robert, was a young man who lived with his uncle Amani s/o Salim, at Nyamahove
Village in Nyombe District. Early in the morning on 28 January 1968 he left home to go to
church. He never returned. On the following day, the deceased’s uncle, Amrani, set out to look
for him. His search took him to Makoga, from whence he was led by the village
executive officer to the village of Iholo. There they met the second accused, Besen, who
admitted that a boy had been tied and taken to the home of the third accused, Mwakilima. When
Mwakilima was questioned by the village executive officer, he admitted that he and the two
other accused had killed the boy. Mwakilima and Besen then led the officer to the ravine where
the body had been thrown. The court found that the death had occurred in the following way.
The first accused, Madirisha, encountered the deceased, and noting him to be a stranger, offered
him food and drink. Ephraim, however, would not or could not reply, where-upon Madirisha
seized him and tied him up, suspecting him to be a hooligan (“mhuni”). He took him to the third
accused, Mwakilima, who was also of the opinion that Ephraim was a hooligan and should be
bound. Later, after Ephraim had been beaten, it was decided to main him. Besen and Mwakilima
held him down on the ground, while Madirisha pricked his eyes with a pin. Mwakilima claimed
that he suggested only one eye should be pricked, but Madirisha insisted that both be pricked “so
that he would be blind and be obliged to live as a beggar”. It appears that Ephraim’s ears were
also damaged at this time. The three accused then left Ephraim at the scene of the maiming. The
following morning, Mwakilima returned to the scene and found Ephraim apparently dead.
Returning again that afternoon, he found Ephraim standing up, which fact he reported to the
other two. The following day, he again went back and found Ephraim finally dead, or so he
thought. He then disposed of the “body” by throwing it into a ravine. Medical evidence
established that death occurred, not as a result of the blinding or the damage to the ears but
following a skull fracture which must have been sustained when the deceased, apparently
dead, was thrown into the ravine. The three accused were charged with murder.
Held: (1) A preliminary question arose as to the admissibility of the admission made by the third
accused, Mwakilima, to the village executive officer, to the effect that he and the others had
killed Ephraim. After some indecision, the court finally held: “Having regard to the ruling of
Biron J., in Athumani s/o Kasim v. R. [1968 H.C.D. n. 143], it would appear that my misgivings
on this point were ill founded, the learned Judge holding in that case that a confession to a
divisional executive officer was admissible having regard tothe provisions of Section 29 of the
Evidence Act, 1967. I deliberately refrained from referring to the admission to the village
executive officer in my summingup to the Assessors but I think it proper to mention it now to
indicate the readiness and willingness of all accused to confess to the parts they had played in
their dastardly venture. This desire to confess may also be gleaned from the pleas of the accused
when the information was read over to them by the Chief Justice on the 28th October, 1968, the
same attitude being adopted by them when pleading before this Court on the 19th February,
1969. Whether regard can be had to what an accused person says in answer to a charge has
at times, being doubted but recently Biron J., in Issa s/o Mohamed v. R. Criminal Appeal No.
108 (P.C.) of 1968 (unreported) was of the view that what was stated in a plea could be taken
into consideration and I believe the decision in R. v. Hazeline 1967 2Q. B. 857 would appear to
lend force to the opinion of Biron J., with whose view I respectfully agree.” (2) “The picture
therefore that emerges …….. indicates that after the three accused had inflicted the injuries to the
eyes and ears of the deceased. …… only the third accused participated in what followed, the
deceased dying tin the ravine in consequence of head injuries he sustained when discarded there.
The first an second accused were not a party to the fatal injury and it cannot be said that
the original wounds at the time to death were still an operating and substantial cause of death. If
the original wounding was merely the setting in which another cause operated, and I accept that
this was the situation death would not be said to result from the wounding (Vide R. v. Smith 43
Cr. App. R. 121) There is no doubt that these two accused intended to main the deceased and
did in fact main him, this being an offence c/s 222(1) of the Penal Code ……. This offence …….
Has been amply established and having regard to the provisions of Section 181 of the Criminal
Procedure Code I think it proper to conviction them of this offence and I do so accordingly. (R.
v. Muhoja s/o Manyenye, 9E.A.C.A. 70. is relevant on this aspect of the case). (3) “The third
accused was the only one who displayed an interest in what was happening to the stranger after
he had been maimed. His first belief that death had occurred was shattered on his next visit to the
scene when he found the victim standing. His final visit led him to believe that death had finally
come, he then endeavoring to conceal the body by throwing it into the pit.
Notwithstanding that he believed Ephraim to be dead when he disposed of the body the
accused’s behaviour cannot be considered save as a series of acts designed to cause death or
grievous bodily harm and it is impossible in his case, to divide up what was really one
transaction. In this view I am strengthened by the decisions in R. v. Church 49 Criminal Appeal
R. 206 and Thabo Meli & Other v. R. 1954 I. A. E.R 373.” Accused convicted of murder.
(4) “Sentence: I have had the accused examined as to their ages by a medical officer, the first
accused being in his mid thirties, the second in his late fifties and the third accused is in his early
fifties. The age factor as far as the first two accused are concerned has influenced me greatly in
determining what punishment should be meted out to them for their part in this shocking
crime. I sentence the first accused to twelve years’ imprisonment and the second accused to six
years’ imprisonment. As regards the third accused there is only one sentence in law which the
court can and does pass and that is that he shall suffer death by hanging.
2. R. v. Atupelye d/o Lwidiko, Crim389. Sass. 24-D-67, 17/10/67, Georges C. J.

Accused was charged with murder. She claimed the death was accidental, but her story was
contradicted by a nine-year old child, the only witness to the events in question. After the victim was
stabbed she was taken to a hospital where she died later. No medical evidence was presented at the
trial.
Held: (1) The court believed the nine – year-old child and disbelieved the accused as to what
happened, and rejected accused ‘s claim that the wound was inflicted accidentally. (2) In view of the
absence of medical evidence as to the treatment received at the hospital, the cause of death cannot be
attributed to the stab wound beyond a reasonable doubt be attributed to the stab wound beyond a
reasonable doubt. The court refused to presume in the absence of contrary evi-dence “…… that the
treatment must have been what it ought to have been, that is, treatment in good faith and according to
the common knowledge current at the time. Accused was convicted of unlawfully doing grievous
harm contrary to Penal Code, sec. 225
3. 244. R. v. Juma s/o Legeza, Crim. Sass. 107-Shinyanga-69, 23/6/69
Accused was told his wife was having an adulterous association with another man. He
questioned her after having taken drink, slapping her several times. When she confessed, he beat
her with stick, told her to go and followed her to her supposed lover’s house where he took away
her clothes and left her naked on the bed. The accused later returned and found her dead due to
head injuries suffered during the beating. His attempts to revive her with buckets of water failed.
He reported the matter, and confessed his actions to the elders subsequently the matter, and
confessed his actions to the elders subsequently to the Administrative Secretary.
Held: “I am obliged to defence counsel for his reference to the case of Manyeri s/o Mukonko v.
R., (1954) 21 E.A.C.A 274 where it was held that the sudden discovery of a wife’s adultery even
if not by finding her in flagrante delicto may in Tanganyika in law be sufficient provocation to
reduce an intentional killing to manslaughter. I have no doubt that that case reflects well
established law.” (Also citing: Russel on Crime, p. 584;

Yolamu Aria v. R., (1969) E.A. 146 “The circumstances surrounding the killing. Suggest to me
that [the accused] might have been influenced by drink to such an extent that coupled with the
admission of his wife’s committing adultery, his mind was so affected that the was momentarily
deprived of his reason and so affected that he was momentarily deprived of his reason and so
unable to control himself in order to make a careful choice of action. “ Accused acquitted of
murder and convicted of manslaughter.