B Mfalila, J.A., delivered the following considered judgment of the court:
The appellant Jesinala Malamula was found guilty and convicted of the murder of her husband Edison Mkasiwa. Upon this conviction she was sentenced to death. She lodged this appeal against C both her conviction and the sentence of death.
There was only one material witness in this case, namely Mesia d/o Edison (PW1), the daughter of both the appellant and the deceased. According to her, she was present when this sad event D between her parents took place. She said in her evidence that on 21 September 1988 her parents ie, the deceased (her father), the appellant (her mother) and Lutinala Nbasu (PW2) (her father's second wife) returned home from the pombe shop at 7 pm. On arrival, a neighbour one Masundi came and invited her parents to go to his home for a drink. He asked then to go and join his guests for a drink. E Her father did not go but he allowed his junior wife, Lutinala to go to Masudi's house as requested but he refused to let her mother, the appellant go, although she specifically asked for permission to do so. This led to a quarrel between the two particularly after the deceased had abused her in the F most foul language calling her foolish. The deceased warned the appellant that if she persisted in her intention to go to the drinking party, he would beat her. Thereupon the appellant challenged him to do so. The deceased like the man he was, accepted the challenge and advanced towards her. As he G did so, the appellant picked a pestle which was near at hand and beat him with it on the shoulder and waist. But as the deceased was still advancing on her, the appellant beat him on the neck. The deceased fell down. At this stage, Mesia said, she raised an alarm and started crying. People came, including the deceased's junior wife. They carried the deceased into the house and the next morning H the deceased was taken to hospital where he remained for two weeks before being discharged. But two weeks later, the condition of the deceased deteriorated, he was taken back to hospital where he died a week later.
In her defence at the trial, the appellant denied these allegations. She denied beating the deceased I as alleged by her daughter (PW1) or asking for permission to go for a drink at Masudi's house.
According to her, when the three of them returned home at about 7 pm on the day in question, their A neighbour one Masudi invited them for a free drink at his house. Her co-wife Lutinala (PW2) went to Masudi's house, but she and the deceased remained at home. She personally elected not to go, she said because she thought it was rather late. Later her daughter Mesia (PW1) told her that her father B had gone to the pombe shop. After some time the deceased returned home and he asked her why she continued drinking pombe in spite of his having prohibited her from drinking. The deceased then proceeded to assault her with his fists three times on the head. The appellant said she ran away. The deceased went back to the pombe shop. After some time as she was in her house, her C daughter Mesia called her out to come and see how the deceased was walking. When she went out she found the deceased had fallen down near the latrine.
In his summing up to the gentlemen Assesssors, the Trial Judge directed them to consider three D questions; first whether in the light of the evidence it is the appellant who caused the death of the deceased. Secondly whether the death was caused with malice aforethought. Thirdly, if malice aforethought is present, whether it was negated by the accused's intoxication. The Trial Judge E specifically directed the assessors not to consider provocation as a defence which is legally available to the accused. On this direction, the gentlemen Assessors were divided. Two of them advised that the accused was guilty of murder as the person who caused the death of the deceased and that although she had taken some pombe, she was not so drunk at the time she assaulted the F deceased as to render her incapable of forming a specific intention. The third gentleman Assessor differed saying that on the evidence the accused was incapable of forming a specific intention by reason of her drunkness. The Trial Judge accepted the advice of the majority Assessors and found G that the accused before him had killed her husband with malice aforethought by reason of the weapon used and that at the time she was not so drunk as to be rendered incapable of forming a specific intent. Accordingly he found her guilty of murder and sentenced her to death. H
In this appeal, Mr Ndibalema learned Advocate filed two grounds of appeal, that the learned Trial Judge erred in law and fact when he failed to consider the appellant's possible defence of provocation and secondly that the learned Trial Judge erred in law and fact when he rejected the I appellant's defence of intoxication in the circumstances of this case. At the hearing of the appeal, Mr Hdibalomo
A quite properly abandoned the defence of complete denial advanced at the trial. He accepted the prosecution case that it is the appellant who killed the deceased, but he submitted that this was done without any intention on the appellant's part to kill her husband. Firstly, he said that this death occurred following a family drunken brawl in which the appellant picked a weapon ready at hand and B inflicted it on non-vulnerable parts of the body. Secondly, he submitted that in this case the deceased seriously provoked the appellant by his threats to beat her and abusing her in the most foul manner in the presence of their young daughter. In the circumstances he said, the appellant should C have been convicted of the lesser offence of manslaughter.
We are satisfied that this was a typical family brawl which was not helped by the pombe which both D parties had taken from 2 pm to 7 pm. We think it is unfortunate that the defence at the trial was not competently handled. The appellant was allowed to embark on a futile exercise of complete denial when the evidence supporting her role in the killing of her husband was so glaring, provided by none other but her own daughter who professed to love both her parents. Similarly, Defence Counsel at E the trial embarked on a futile exercise to discredit the girl Mesia as a witness. Defence Counsel should have energetically advanced the twin defences of provocation and intoxication which are so clearly brought out by the record. Defence Counsel should have used the evidence of PW1 to defend F the appellant rather than trying to discredit it. From the evidence of PW1, it is clearly brought out that the deceased used foul language to abuse the appellant in the presence of their young daughter. He threatened to beat her and indeed was going to make good his threat when the appellant decided to stop him. In view of the deceased's previous conduct of beating his wives whenever he was drunk, G the appellant was entitled to take his threats seriously. These certainly were provocative acts on the part of the deceased. But the Trial Judge thought this defence was not available to the appellant and directed the Assessors accordingly. We intend to reproduce in full the Trial Judge's summing up on this point because it contains such serious misdirections that our comments may help to avoid H such pitfalls in future. He stated:
`Now turning to the defence of provocation, the evidence we have for the defence that tends to establish the same is that following a quarrel with the deceased, the deceased beat her on her head three times with a fist after when she I ran away, and the deceased left her and went away too. Assuming for a moment that the accused picked the pestle
and beat the deceased as alleged, and of course that would have to be regarded to have been so done in the heat A of passion, while there was no time for her to cool, which then could be said to have deprived her of the power of self control, the next and important question that would have to be answered, is whether by the use of the pestle as alleged, what she did as she beat the deceased with it could be said to have been of the nature of or commensurate B with the assault alleged to have been done by the deceased to her. To that I would clearly give a `no' answer. In the circumstances, the use of a pestle in repelling such deceased's alleged assault, was totally out of proportion and gravely excessive force. Accordingly I cannot put to you that there was such legal provocation as to constitute a valid defence for the accused. So do not have to labour yourselves considering such a defence. Apparently should C you accept the evidence of PW1, the only eye witness and daughter of the accused, it would appear that the deceased, thought he threatened to beat the accused and did approach her for the purpose empty handed, the accused ran away before she was beaten.' D
Since the Judge found that there was provocation, he should not have removed the question from the Assessors and decided it on his own. This Court has held on a number of occasions that to remove E the question of provocation from the Assessors when there is such provocation is fatal to the resulting conviction, for it is impossible to know that the Assessors would have said had the question been put to them.
In this case there was provocation in the form of insults and threats to beating and the parties had F been drinking, this made it a typical family brawl. Mr Mbise, learned State Attorney had at first supported the appellant's conviction, but on second thoughts, decided that the appellant's conviction for murder cannot be supported. He said that on the evidence she should have been convicted of manslaughter. G
We agree, and for the reasons we have given, we allow the appeal, quash the appellant's conviction for murder and set aside the sentence of death. Instead we find her guilty of the lesser offence of manslaughter and convict her of this offence. H
As to the sentence, we think that the appellant's criminality was not as such a level as to call for a severe punishment. As we have indicated, it was a family brawl following a long session of drinking which culminated in insults and threats. The appellant may have thought she had a genuine I grievance at her being refused permission to go for a drink while her co-wife was allowed, even if the
A deceased may have had good reasons for doing so. She has been in custody since 1989. This makes it about four years. As she herself stated, she loved her husband, she could hardly therefore have wished to cause his death.
In the result we sentence the appellant to such term of imprisonment as will result in her immediate B release from prison.
1993 TLR Cp202
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