Hamis Chacha wisare vs Republic, Criminal Appeal no 207 of 2019.

This case talks about what amount to malice aforethought in murder cases and time of accused spent in custody as factor when sentencing.

The court had this to say:

The foregoing excerpt from the confession of the appellant in Exh. PI, which explains how the deceased was chased and at a corner he beat him with the flat side of the machete and thereafter, after a short while of pursuit, he fell down and he, once again, beat him with the flat side of the panga, does not depict any persistence in the beating as perceived by the learned State Attorney and the trial court.

 If anything, it shows only beating twice, the first one at the corner and the second one after the deceased fell down. In both beatings it was a flat side of a machete which was used. The appellant did not hack the 

deceased; he just beat him with the flat side of the machete. If he had any intention of killing him or causing grievous bodily harm to the deceased, he would, in our view, have hacked him instead of using the flat side of the machete.

 We do not therefore think what happened immediately before the act 

and immediately thereafter, imputes malice aforethought. On the contrary, we think the trial court should have convicted the appellant of causing the death of the deceased but that the killing fell short of the requisite malice aforethought to constitute murder. 

The appellant should, in the circumstances, have been 

convicted of a lesser offence of manslaughter and sentenced accordingly. 

We  so find and hold.With regard to the sentence, we have considered the time the appellant has spent in prison ever since he was convicted on 3rd January, 2019. We feel that he has spent enough time commensurate with the sentence that would have been imposed in the circumstances. We thus partly allow the appeal by quashing the conviction for murder and setting aside the sentence of death 

meted out to the appellant.

 We substitute therefor with a conviction for manslaughter and a sentence that would result in the appellant’s immediate release from prison forthwith unless otherwise lawfully held.

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