a reasonable doubt. The Court further notes that in support of the appeal
the learned counsel for the appellant narrated the manner in which the
appellant caused the death of the deceased by cutting him with a “panga”
until the head was completely separated from the rest of the body, and the
utterance he made thereafter that “nimeua na nitaua sana leo”.37 The
counsel for the appellant also alleged that his client was a drunkard and
used to smoke “bhangi”.
85. The Court notes that counsel for the appellant, argued that such conduct
was inconsistent with a person who is sane, therefore, in the circumstances,
the appellant was entitled to the defence of intoxication under section
14(2)(b) of the Penal Code. Similarly, counsel averred that the trial judge
should have made a special finding under section 219(2) of the Respondent
State’s Criminal Procedure Act, that the appellant killed the deceased but
for reason of insanity he was not guilty of murder and should have acquitted
him. On the other hand, the Respondent State averred that the Applicant
had “malice aforethought” and precisely knew what he was doing, therefore
the defence of intoxication should be rejected.
86. In considering this claim the Court recalls its jurisprudence that a
Respondent State cannot be held responsible for every shortcoming on the
part of a lawyer appointed for legal aid purposes. As such, the quality of the
defence provided is essentially a matter between the client and his
representative and the State should intervene only where the lawyer’s
manifest failure to provide effective representation is brought to its
attention.38 Furthermore, this Court has held that allegations relating to
counsel not raising or objecting to certain evidentiary issues in relation to
his/her clients defence, should not, in these circumstances, be imputed to
the Respondent State.39 More importantly, there is nothing on the record to
demonstrate that the Applicant informed the domestic courts of the alleged
37 Meaning, I have killed and will kill a lot today.
38 ECHR, Strickland v. Washington, 466 U.S. 668 336; 686 (1984), 336; Lafler v. Cooper, 566. No 10-
209 slip. op. (2012) (erroneous advice during plea bargaining).
39 Henerico v. Tanzania (merits and reparations), supra, § 113.
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