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Death penalty for wife killer upheld

THE Court of Appeal has upheld death sentence imposed on one Nicholaus Mgonja, who was found guilty of killing his wife, Farida Michael.

The accused, a resident of Lushoto District in Tanga Region,  committed the crime after he allegedly caught his spouse in their matrimonial bed with another man, both naked having sex.

Justices Shaban Lila, Mary Levira and Ignas Kitusi ruled against Mgonja, alias ‘Makaa’, the appellant, after dismissing the appeal he had lodged against both conviction of murder and the sentence slapped on him by the High Court.

“It is our conclusion that the appellant killed the deceased with malice aforethought. Consequently, we find no merit in the appeal and we dismiss it in its entirety,” they declared in their judgment delivered recently in the Court’s Tanga Registry.

The justices entirely agree with the views expressed by court assessors on the matter, the position given by prosecution during hearing of the appeal as well as the trial court that the appellant must have intended to kill his wife or cause her grievous harm.

“From the type of the weapon he used, the machete, to the parts of the body he attacked, being on the head, the nature of the injury caused and the number of blows, three blows, there cannot be room for saying he had no guilty intent as defined under section 200 of the Penal Code,” they said.

According to the justices, it was not in the ordinary cause of things and human behaviour for a man, who attacks another to declare that his intention was to kill even if such was his intention.

During hearing of the appeal, the counsel for the appellant had submitted, among others, that the trial judge erred in law and in fact by not concluding that the killing of Farida Michael was not done with malice aforethought.

He contended that the trial judge erred in law and in fact by failing to analyze the circumstantial evidence which did not establish mens rea (knowledge of wrongdoing) and failed to appreciate that the appellant was not guilty of murder and should have found him guilty of manslaughter.

In the judgment, however, the justices of the appeals court concluded that the circumstances as stated in the testimonies of prosecution witnesses lead to no hypothesis other than that the deceased suffered deep cut wounds inflicted by the appellant at the time when she did not pose any danger to him.

“Since our finding based on the testimonies (of witnesses) is that the deceased had cut wounds as a result of which she was bleeding profusely, and since these witnesses were not contradicted on that, we find the appellant's denial that he did not inflict those wounds to be a ridiculous lie,” they said.

A woman known as Farida Michael, alias Tindikali was killed on September 24, 2012 within Lushoto District in Tanga Region. Her husband Nicholaus Mgonja, alias Makaa, the appellant, was charged under section 196 of the Penal Code allegedly for being the one who killed her.

On the material date, one police officer was a sentry guarding the late Ex-President Benjamin Mkapa’s residence at Lushoto District. From where he was, the policeman heard shouts of people and he walked towards the direction of the shouts which was very close to his post.

As he was moving, he met the appellant coming from where he was heading. The appellant’s clothes as well as the machete he was holding were bloody as he was heard shouting, "Nimeua! Nimeua, nendeni kwenye nyumba ile mtakuta mtu amelala!"

The police officer ordered the appellant to put his machete down and he arrested him, took him back to the house of the late Ex-President and locked him in one of the rooms with his hands tied.

Thereafter, the  policeman went to the scene where he found many people who showed him the appellant's bedroom where he found a woman laying on a bed with cut wounds on her head, ribs and both hands.

He arranged for transport to take the woman to hospital via the police station where a PF3 was issued. However, shortly later, such policeman was informed that the woman had died. He turned over the appellant to Lushoto Police station, where he was subsequently charged.

The appellant made a sworn statement during defence and stated that when he found his wife making love with another man on the matrimonial bed, the two reacted by quickly dressing up. Next, he said, the man hit him by using his head and bolted out.

When the appellant came by, he found his wife holding a machete and he sensed danger. A fight ensued between him and his wife over the machete and the appellant managed to disarm her but not before both had sustained some injuries in the process.



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