Omar, Ramadhani and Mnzavas, JJ.A.: The appellant Clay Laway was charged with and convicted of the offence of murder contrary to section 196 of the Penal Code. F It is the prosecution evidence that the appellant was on 19/9/89 at about 6 p.m. in the house of his step brother called Akweso. Members of the family who had just returned from the fields where they had been cultivating seeds and onions, and others like Akweso's two daughters Martha and Christina who had been to the Cattle Market, G were all in this house. So in the presence of the members of the family, the appellant who only had an hour previously had been with them looking at photographs of the family members, and had gone out of the house and returned, suddenly started attacking Suzana, the deceased who was the wife of Akweso. He struck her with a panga on the H back of her neck causing her instant death. None of the prosecution witnesses was able to say what the cause of the attack was. The two children of the deceased P.W.2 and P.W.3 had testified to being present in their home when their mother was killed. They said that there had been no quarrel at any time that day between the appellant and I any member of the family.
OMAR JJA, RAMADHANI JJA, MNZAVAS JJA
In his defence the appellant stated thus: A
At 5 p.m. on 19/9/89 I came from working in my shamba. I went to the home of deceased. She was at home with her young children. She gave me milk which was poisoned. I got drunk and I killed her while in a state of dizziness and confusion. I took a panga which was B in the house of deceased and I attacked deceased, killing her ... I used to drink but I suffered stomachache and I stopped. After killing deceased I ran away because I became frightened.
Appellant tendered Hospital Discharge Certificate as Exhibit D.1 which showed that C he was admitted in hospital on 22/9/89 and discharged three days later on 25/9/89.
Going through the evidence we find that none of the prosecution witnesses had mentioned about seeing the appellant being given milk by the deceased on that D material day. The learned trial judge was of the view that if at all appellant was found suffering from food poisoning then the poison must have been taken by him after he had attacked the deceased and had run away from the scene of crime. E
Mr. Ojare, the learned counsel for the appellant considered whether it is credible or supportable that appellant was given poisoned milk. He considered the time that witnesses gave of the family members' return from their respective farms P.W.2 said 7 p.m., P.W.1 said 6 p.m., the appellant said 5 p.m. So Mr. Ojare concluded that there F was a sufficient timegap for the deceased to administer the poisoned milk. The solitary ground of appeal canvassed by the learned defence counsel is that he killed in self-defence but Mrs. Lyimo, learned state attorney for the prosecution said that this was not a case of self-defence or of provocation but of mere revenge and she prayed G for the appeal to be dismissed.
We are of the view that although there was a hospital discharge certificate showing that he was hospitalised for three days on the doctor's diagnosis of poisoning, there is no sufficient evidence from either side to this case to show how this poison got into the H appellant's body and at what time in relation to the event. No doctor was called to clarify on this diagnosis which was on the discharge certificate. Furthermore the plea of self-defence cannot by any stretch of imagination be applicable to him. Was the appellant by hacking the deceased defending himself from further poisoning? The I appellant in his defence stated that he felt dizzy and confused after
drinking poisoned milk and without knowing what he was doing he took the panga A which was in the house of the deceased and cut her on the neck. We cannot in these circumstances find any of the known defences available to the appellant. The story of poisoned milk is still not convincing nor does it raise any doubt in the prosecution case. B If there are causes to this killing the members of the family are not willing to divulge them, then the matter rests there, that the killing was senseless and motiveless. We therefore find that the appellant was properly convicted.
C Appeal dismissed.
D
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