H Mnzavas, J.A., delivered the following considered judgment of the court:
The appellant Kasongi Yabisa was sentenced to death by the High Court sitting in Mwanza (Masanche, J) consequent upon his conviction for the murder of one, Mbalu d/o Yabisa on or about 19 October 1984 at Malembe Village, within the district of Kwimba, in Mwanza region. I
Mr Muhula, learned advocate, appeared for the appellant while Mr Magoma, A learned Senior State Attorney, appeared for the Republic.
Mr Muhula, learned Counsel for the appellant told the Court:
'I have thoroughly read the record and I have come to the conclusion that I have very little B ground to argue the appeal in favour of the appellant. I have informed my client accordingly.'
In reply Mr Magoma, learned Senior State Attorney said: C
'The Republic supports the conviction. It is my view that there was ample evidence in support of the conviction.'
In this case the following facts were not seriously in dispute:
The appellant and the deceased were brother and sister and they lived in the same homestead. The appellant was married and had children. The deceased was not and was childless. D
About a month before the death of the deceased the appellant and his family vacated the house in which they were living with the deceased and built a separate house some distance away from deceased homestead. E
The deceased was left to live in the former homestead alone. A week or so after the appellant had left to live in his new house villagers passing by the house of the deceased started smelling a foul odor emanating from the deceased's pit-latrine. As the deceased was nowhere to be seen in the village news reached authorities F and the local 'Katibu Kata', (PW3) went to appellant's homestead and interrogated him as to the whereabouts of his sister, the deceased. Initially the appellant told the 'Katibu Kata' that the deceased had left the village to Geita to look for her sheep. On further interrogation the appellant confessed to the 'Katibu Kata' G that he killed the deceased because he honestly believed that she was a witch and that she was responsible, by reason of witchcraft, for the death of one of his children. The appellant then led the 'Katibu Kata' and other villagers to deceased's pit-latrine where he had dumped deceased's body. The matter was reported to the police and a dead body was removed from the pit and identified as that of the deceased. H
There was also appellant's confession to a justice of the peace PW1 - exhibit P3, in which the appellant gave a detailed statement as to why he killed the deceased. He says, inter alia: I
A 'Marehemu namfahamu, Mbalu Yabisa, alikuwa dada yangu. - Mnamo mwaka 1982 - mtoto wargu aitwae Luja d/o Kasongi alianguka ndani ya lambo akafa. Nilienda kwa waganga wa kienyeji baada ya mazishi. Waganga wa kienyeji walinieleza kwamba binti yangu Luja B alisukumizwa kwenye lambo na akafa. Mnamo mwaka 1983 - mtoto wangu wa kiume aitwae John Kasoni nilikuta analia naye akanieleza kuwa ametishiwa na shangazi yake (marehemu). Wakati huo alikuwa amechomwa na mwiba wa Mkongo (goti) rilimpeleka hospital - mwisho akapona lakini shangazi yake hakuja kumtazama. Baada ya kuona kuwa anatake kumaliza watoto wangu nikajua kuwa siku moja ataniua mimi. - Hivye niliona kuwa C nihame. Baada ya kuhama ndipo niliamua nimuue mimi mwenyewe. Mnamo tarehe 15 October 1984 saa 8 usiku niliondoka kwangu rilipofika kwa marehemu nilifungua mlango, nilimkuta amelala rilimvuluta toka kitandani nikamsukuma akajipiga kwenye kibambaza na kuanquka chini ndipo nikaanza kumniga kooni kwa mikono mpaka akafa. Baada ya kuona D kuwa amekufa nilimvuta nikampeleka ndani ya choo; baada ya kuutumbukiza ndani ya choo nilichukua jembe nikaufunika kwa udongo - nilipomaliza nilienda nyumbani kwangu.'
E Doctor's post-mortem report - exhibit P1 was to the effect that the deceased died of asphyxia. This tallies with appellant's confession that he strangled the deceased to death.
There can be no doubt in this case that the appellant killed his sister, the deceased, in the honest belief that she was responsible, by reason of witchcraft, for the death of his daughter, Luja Kasongi. However, as there was no sudden shock which might have deprived the appellant of his self-control the killing was murder. F
'To constitute a defence in a charge of murder the belief in witchcraft must be founded on some physical and not metaphysical act' - See the decision in R v Akope s/o Karuon and Another (1). G
On the evidence we are satisfied that the learned Trial Judge was right in convicting the appellant of the offence of murder as charged. The sentence of death is mandatory.
In the event we dismiss the appeal in its entirety. H
A
