19820917 TZHC Tabora

0 - 113 - IN THE HIGH COUdT OF TANZANIA AT TABORA

ORIGINAL JURISDICTION (Tabora Registry) CRIMINAL SESSIONS CASE NO. 33 OF 1982

THE REPUBLIC versu 1. MARTIN JIMY KATERA 2 CHRISTOPHER URIC CHLiLE: n;r'. rnTr'T OF id (.' - 'uy o section 196 of the Penal Code. 10 J Ti 1) G M F N T RUBAMA, J. MARTIN JIMY KATERA, the first aCCUSeJ and CHRISTOPHER URIO, the second accused stand charged with two counts of murder. It has been aliege that they with malice aforethought jointly and thgether kill Lutz Klante and AlnoorSumar on 6th May, 1982 The prosecution called twenty two witnesses to prove the following: that Lutz Ylanta and Alnoor Sljr3r were dead 20 and that they had died of violent deaths. that the two accused persons were the killers of the said Lutz Kiante and Alnoor Sumar and that the two accused persons had killed the two above mentioned deceased with malice aforethought. It is not in dispute that Lutz K;.ante and Alnoor Sumar are dead and that they died on 6th May, 1982. There is plenty of evi -nct- . ihin; ha... fat. past mortem examination on the body of Lutz Klante was peforred by Dr. Amos Karumuna (P.W.20) on 7thiay, 1982 after the body had 30 been identified to him by one Kiens Dollack and Dr. Nkulila (P.w.14) as being, that of Lutz Klante Dr. Karumuna(P,W.20) opinioned that Lutz Kiante had die: due to severe blood loss. Dr. Karumuna had earlier or 6th r4ay, 1982 performed a post mortem examination on the bndv of Alnoor Sumar after the body had been identified to him by one Al'kariia Sumar

and Shaf5.,k Waiji (7W.18 s being Lhat of Ainnar Sumar 7 Dr. Karumuna stated that Alnoor Surnar •-eath was due to a punctured wound rc.sulting in a s ie:ad arch aorta and haemot1iorax bilateral leading to a severe blood los Dr. Amos Karumuna 40 (p.W.20) produced in court post mortem examination reports on Alnoor Sumar (exhibit p 9) and Lutz Kiance (exhibit ( 8 ). -114 - I accept the evidence of Dr. Amos Karumuna (PW.20) that both Lutz Kiante and Alnoor Sumar are dead and that they had both died as a result of severe lbss of blpo.. - • I further accept as a fact that both Lutz Kiante and AinOôr Simar had died violent deaths0 Dr. Karumuna (P.W.20) testified that the wounds that had caused the severe loss of blod in respect of the two deceased had been bi.11et wounds. I accept his testimony of how he (Dr. -Karumuna) had come to that opinion after examining the said wounds The narration of the St-ry that led to the violent 10 deaths of the two deceased is started by John Stephen (p.W,1),.. He is the Head Watchman at the Igmbe water ram, Tabora.. On 6/5/2,. he left his home at igorhbe village to g.e.' to work at 645 a,m, When passing the vicinity of the house of Lutz Kiante, he noticed a trail left behin* by what he believed were motor cycle tyres. He notied the trail coming from Lutz Klantehouse join the mair road S-uspeting that a motr cycle belf.nç,ing tn Lutz Kiante had been

stole, he checked tthe shed where Lutz Kiante used to-park his mto-r cycles. Lutz Kiante had-three motercycle&- 20 John Stephen (p.W.1) saw only two parked. - Satisfied that one f the motor cycles belonging to Lutz Kiante had been stoler, h& first went to work and then returned to. ±eport tLutz Kiante about his suspicion. John Stephen1 P.W..1) stated that J:.e was at this time accompanied by an6ther watchman, one Said! Mrisho.. and Maulid Sha)ani (PW4 - a son of a working colleague. Lutz Kianto was awakened by. John Stephen and told of the suspicion that one of his motor cycles hadbeen stolen.- He returned inside his house and soon after came out if 30 the huse accompanied by his wife. He and his wife, John Stephen, (P.W.1), Saidi Nrsbo and Maulid S ab ani'(P,t4) gof iththe motor vehicle of Lutz Klanteal-id set utt.-trace the -stolen motor cycle0 The motor vehicle was of a land rover The party in the land rover followed the trail eft by the stolen motor cycle to Itaga All thIs time the trail was the main road. Then the trail left the main road but could be traced on -a foot path. The land roer could only t . manage to cover a shrrt distance of the foot path, The party abandoned th land rover,-leving it under th& care 40 nf Mrs... Lutz Kiante. - Saidi Mrjsho remained belind wi?th- Mrs.- Lutz -Klante., • ••• S -115-- John Stepiien (p.i) testified further that he, Maulid •abani

(p!) and Lutz Kiante continued to follow the trail left by the stolen motor cycle on foot up to a certain sand guarry. They stopped to ask the people working at the guarry whether or not they had seen any body dragging or push- ing a motor cycle pass there. They received a negative reply. Just then a motor vehicle of Isuzu make coming from the dire- ction of the Tabora town appeared. The driver of this motor vehicle was asked the same question that had earlier on been posed to the people working at the sand gu arry. 10 The drivei of he isuzu motor vehicle answered positively. He told them that he had seen two people just a short distance away drag a motor cycle going towards town. Just then another motor vehicle, a lorry, appeared, going towards town. It was a Mercedes Benz being driven by an Indian. Lutz iclante asked for and was given a lift on the lorry. Maulid Shabani (pw.4) joined him. He and 1iaulid Shabani (pw.4) got on ;he front cabin - driver's cabin - and the motor vehicle was driven off leaving John Stephen (pw.l) beyind. John Stephen stated that he had been left behind because at the 20 time Lutz Xlente had been offered a lift, he was still talking to the driver of the isuzu motor vehicle that had come from town trying to get the description of the people seen dragging or pushing the motor-cycle. He (Pw.1) did not, however, succeed getting this information. Maulid

Zhabani (Pw.4) stated that while driving to town, they Saw ahead of them two people drag tae motor cycle belonging to Klante. Lutz Kiante asked the driver of the lorry on which they were riding to stop and the driver 3o complied with the request. Lutz Kiante got out of the lorry and went towards the two people in possession of the motor cycle, crying out PIthioft, "thief". 1,. ccordirg to haulid Shabani °(Pw.k), these two people waved to Lutz hiante to return to the lorry but Lutz Kiante would not obey the command. He was there upon shot by them on the thigh - an act that made Lutz I'lante heed the comma'ids of the people with the motor cycle. aulid Shabani (P.4) testified further that Lutz Kiante returned to the motor vehicle and the driver \ of the lorry drove off but only for a short distance as the 40 motor vehicle was shot at forcing it to come to a stand still. The people who had the motor cycle went to the lorry and twice shot at Lutz Kiante. The driver of the motor vehicle was also shot. Both these died on the spot. The dead body of driver of the motor vehicle was later identified as that of Alnoor Sumar.Maulid Shabani (Pw'4) stated further that he too was shot at the shoulder and had to be admitted in hosp- ital for four days. -j - 116 - Maulid Shabani (pW4) stated that he could not identif' their assailants 0 John Stephen (p.w.1) having been left behind by Lutz

Kiarite and I'4aulid Shabani (P.w.4) decided to follow the two on foot. However, he soon after got a lift in a motor vehicle ging to town. He got to an area that he (John Stephen) caled 'MasacTala He saw the lorry on which Lutz Klnte and Maulid Shabani (P.W.4) were given a lift atoner' just off the road, He observed that one of the hihd tyres had no pressure and the lorry wa iethling side-.wQys He also saw the motor 10 cycle belonging to Lutz Klante parked beside a mango tree off the road. As he could not see Lutz Kiante around, he leoked around in search of him. He soon found him lying &own, face down wards, off the lorry, dead. The driver of the lorry was lying inside the driver's cabin, alsodead. Maulid Shabani (p.W.4) was no-where to be seen. John Stephen 4 (P.W,1) asked the driver of the motor vehicle who had given him a lift to kindJ.y take him to the Police Station to report the matter. The driver obliged. on the way he (John Stephen) saw Maulid Shabani (P.W.4)dazzed and with a 20 shoulder injury. He took him to the police station and later to the Kitete Government Hospital where, he (Maulid Shabani) was admitted for treatment fcc four days. John Stephen (p. 1 .1) stated that he did ,. -.nbtsa6e the assailants of LUt Kiante, Alnoor Sumar and Maulid Shabani. He had, however, only head five gun shots when he had just set out from the sand quarry to follow Lutz Klante and

Maulid Shabani (P,w.4) and before he had got a lift in a motor vehicle to the scene of crime. Francis Alphonse a peasant farmer living at -.. 30 Kilolen, Tabora, testifie:1 that he had set out from his home at about 7 a.m. to go and cut some poles. He wanted the poles for making a stand "kichanja" on which to dry maize. Francis Alphonse (P.w.2) testified further that at Masagala area, he found two people push a moter cycle towards town. The fronttvre of the motor ycle, acording to Francis Alphonse, was not rotating and the steering was not straight. He recognized one of these iwo people as a former employer of his6. :;e greeted his former employer. Francis Alphonse (P.W.2) s:ated that both, his former employer and the second 40 person in the companyof his former employer answered his greetings. Frances Aphonse then helped push the motor cycle from behind for a distance of about seven hundred paces. During the pushing, he ws nearer the colleague of his former employer; he noticed this person was carrying a gun strapped over his shoulder / I. --117.- He then left this party of two people to go on with his work of cuttingpoles. He cut three poles and strted to walk to town. Franj Alphonse (p.w62) testified further that while returruiñ to town he cOuld see his former efrploer and his colleague push their motok cycle tàards t6wn He then saw a motOr vehicle driven by an Indian

going towards Nasagala, the direction from whence he was coming. Sh&tly thereafter he saw the same motor vehicle return andI pass him going to twn up to this stage,' he could still se his former employer and his collegud push their motor 10 tycle.- The were according to Francis Alphonse (P.W.2) some seven hundred paces ahead of him; the area was open land with some short grass End some mango trees. Francis Alphonse (pw.•2) stated that one could see distances away.. His vision of his former employer and his colleague was however after a time blocked by the motorNWhicl:p that had just then passed him going to town. He saw this motor vehicle stop and two people a Europear and an Indian get off the rrotbr vehicle0 Soon thereafter he heard four gun shots' - he got, as it were transfixed thinking that he was being 20 fired aL He stoOd where he was, s:ill carrying his three poles, for a time he estimed as between half an hour to one hour. He then regained his senses and ran towards town passing through the scene of crime but noticing nothing. Francis Alphonse (p 0 W • 2) further stated that bfre he ran away t . he saw his former employer and his colleague run away from the scene of crime0 He estimated the time of the shooting at 8 a.m. Francis Alphonse stayed at his home up to the evening w when he went to report of what he had seen at Nasagala on the morning t.. his Ten Cell LeaLl .

eri one Msuka. The said 30 Msuka reported.the matter to the police on the morning of 7th May, 1982 Francis Alphonse further testified in court that the 1st accused was his fOrmer empThyet whom he had helped push, -- a motor cycle at Nasagla area on the morni'g of 6th May, 182. He fürthOr identified the 2nd accused as the person whO had been with his former empjOy?r on this morning. He had stated that he had thade brIcks for the 1st accused for three day,s at an area he variously descibed as situated behind the Gathe Park s behind the Game ResearVe and as being near the Tabora •. - 4o Regional Blocks He alo stated that he had made bricks for the 1st accused at Kilolept near the Shell Petrol Tanks for two days e - 118 - ¶ t Franc:Ls Alphnse stated further that he had been working at these places only with Lucas Mvula (PW.00 He further stated that he had kndwn the 1st accused by face and not by his name and that he had manaed to note the face of the secohd accused at the time he had been helping 1st accused and the 2nd accused push the motof cycle. Lucas Nvula (P.W.) confirmed Francis Alphbnsef story that Francis 'lphose had worked under him making bricks at the 1st accused saw mill at Kiloleni for two days and that the 1st accused used, during this ti:c te ;'t' e pice. He further stated that the 10 1st iccused had at one time made payment to Francis Alphonse stating that he was

going o make an equivalent reduction when paying Lucas Mvula (P.w.15) for the work done. Ordinarily all payments for brick making by Lucas Mbula (P.W.15) were made by the 1st accused to Lucas Mvula (P.w.15) with whom he (1st accused) had entered a labour only contract and that it was Lucas Nvula who eventually made payments to the people he had engaged to help him make bricks. He (Lucas Nvula)stated theE n this particular occasion, Francis Alphonse urgently wanted money and that he had advised him to 20 wait for the 1st accused who when so approached by Lucas Mvula p.W.15) agreed to make the payment on the cond_Eion I have noted abve. Lucas Mvula did, however, state that Francis Alphonse was only involved in the watering of bricks for the 1st accused brther at Cheyo fr one day and not made bricks for three iays as he (Francis Alphonce) had stated in court. Lucia Ngalawa (p•W3) testified that she had seen and greeted the 2n* accused en te morning f 5th Nay, 1982 when she was on her way from Itaga where she lives to Tabora. 30 She had left home very early in the morning - she stated during her examination in chief as 5 am. but changed it to 6.3 a.m., during re-examination - to come to Tabora Police Station in connection with a case the police were handling involving the theft of a seing machine f theirs. She was with her brother called Sylevester when she saw the 2nd accused

standing besides the road t Tabora. She 'et nu "Habari za asubuhi" and the 2nd accused had replied "safi". She passed by. Her attention was drawn shortly after by the crossing of the red to the other side by the 2nd accused. She turned pack 40 after a distance of about six hundred paces to look. She saw the 2nd accused with another person she could not â identify push a mothr cycle towards Tabora. AV 119 -. She and her brother went to the Police Station where they remained up to 1130 n.m. At about 9.30 a.m. a report of the killing tf a European was received at the police station. LUcia Ngalawa ( p 0 w,3) stated further that on hearing of this report, she and her brother went outside the police sttion and started debating the possibility that the people they had seen dragging a motor cycle earlier cn that morning might be involved. She made a repbrt to the police there ahd then A short statement was taken from he- on that day. She was on 10/5/82 taken to the police station to participate in an 10 identification parade conducted by ASP Maneno Zavalla (P.w6). She identified the 2nd acused as the person she had seen and qreeted on the early morning of 6th May, 4982 when she was with her brother coming to Tabora police Station and shortly after seen cross the road to the Other side and later seen drag a meter cydle with another person towards Tabora. 2he prosecution called Henry

Mgogolo •(p..w.5) to establish that the 2nd accused with another person had been to ±qbmbe on the even±ng of 5th May, 1382., Henry Mqogolo 20 (?.w.5), atthe time a Resident Ergineer at Igbmbe in the employmen,±.f H. P., Ghulf C"nsultng Eng.ifleeS Testtfied that he had seen the 2nd accused with another person coming from the direction of the house of Lutz Klante passing his house yard to join the main road. He testified further that he had not known the 2nd accused before this day and that the 2nd accused and his colleague looked to him strangers in the area. He had been at Igombe Water Dam area since 1977 and had come to know the faces of the employees at the Igombe Water Darn and those of the villagers nearby. 30 He refuted the defence suggestion during crvss.-examination that he (Henry Mgogolo) had picked the 2nd accused at an &--- identification parade organised by one Inspector Kikides - because he had known who the 2nd accused was before this day. As Francis Alphonse (PW.2), Lucia Ngalawa (P.w,3) and Henry Mgogolo (p.w.5) ha testified that they knew the accused people they had seen at various times on 6th May, 1982 in the case of P.w2 and P..w.3 and on 5th May, 1982 in the case ef p.W.5, the police organised various identification parades involving several i,entifying witnesses. ASP 40 Maneno Zavalla (P.w.) organised two identif1caion parades n 10th Nay, 1982. -120- In

each parade, twelve people, including two suspects, took part0 ASP Maneno Zavalla (P.W.6) testified that he had assigned to Detective Constable Raymond (p 0 W.8) the duty of taking care f the identifying witnesses before they weht to the identification parade. These were put in the office of the Officer Commanding the Police Station (ocD) whichfaces the SchoOl Street, Tabora. The parade was being organised by ASP Maneno Zavalla (P.w.6) at the back yard of the Police Station and the idenfifying witnesses ooilU nc)L therefore see its prearation0 Dectective tohstable Raymond (p0W08) was instructed to ensure that the 10 identifyihg witnesses did not communicate with oUtsiders ASP Naneno Zavalla (p.w.6) fur ,.Vier appointed Detective Constable Fred (PW,g) to take care of the identifying witnesses after they had been to the identification parade. He istructed Detective C'nstable Fred (p0W09) to stay in the Police Exhibit Room and to ensure that they communicated with no oitsiders. Both Detective Constable Raymond (pw8) and Detective Co- table Fred (PW.9) participated in tue two parades organised by ASP Maneno zavalla (p.w,6) in the same roles and using the same two offices and were instruted by ASP Maneno Zavalla 20 to observe the same guiding principles. on the first parade, five identifying witnesses tok part. The two suspects were the 1st and 2nd accused persons who had been told

the purpose of the identification parade by the organising officer, ASP Maneno Zavalla and told to take any positions they chose Each one cook the positin of his choise. The first identifying witness on the parade was Lucia Ngalawa (P.,w.3). ASP Manenb Zavalla (p.w06) stated that Lucia Ngaiawa, without hasitation touched the shoulder of the 2nd accused indicating that he was the person sbe had seen and greeted on the road to 30 Tabora on the morning of 6/5/82 and had later seen with another person she could not identify drag a motor cycle towards Tabora0 ASP Naneno Zavalla (p 0 w..,6) testified further that he had told the two accused that they could change into different attires before taking part in the identification parades0 This fact is denied by both accused persons.. Both accused persons testified that they had asked to change into clean clothes to fit in a parade composed of ten other clean participants. This stand of the accused was supported by EraSto Biga 40 (D.W,3) and Kamara Katera (DW.4) both held as suspects in the same case up to July, 1982. / •.- 121 L The two eccted f therdenLe t1:e stment by AST Maneno .avai1a nW, tht he ha bt been selecUrM the suspects fo: partici.padoh in each parde and that he had let the fbur suspects then under the police custody ptck themselves into iwe fo pUrpoes of parttcipation in the tw parades ASh ianeno Zavaila (p.G) further

testified that in both identtfideiion parades he had conducted, only the 2nd acc:sed .:as id.- ntifiad by Lucia iaae (p.03) and that netth tit Yusuf nor nmc°ucl was identified by ay 10 indentifying witness as had been put to him by the defence. ASP Mareno Zavaila (pWT.) stated that in selecting the participacts in the parades he had organised, he chose people thstphsically resembled the suspects he was puttifl •on the pssde: ASP Elliot Nkemwa (p,W7), the Officer Commanding the police Station. Tabora was the one who had conducted the identification parcde on 11/5/2 ASP alkemwa testified that there was only one iderifci.ng witness. He was Franc1 Alphonse (P.1i2) Betarc theparade he (Francis Alphnse) 20 was kept into the off i:e of the officer conducting the parade undec..Lhe evo ji letecttc S.ogent priskilla Franct. Alphonse ::p:.2) was takent the Exhibit Room after he had been to the idanti.fi cation parade and placed under the cane of etecc.tvc Constable Fred (P) Detective Set Prisilla and Detective Constable Fred were to see to it that Fra:.Cio Alphonse (p.2) cid not communicate with any carson while under their respective cares and the two above mentioned officials stated that Francis Alphonse did rt. commuri±c ate with any outsider while under their respective 30 caresQ ASP hAic; Mkernwa W.7) testified that when Francis Alphonse war aent to him to oart1cipate or the parade

as an identifyino w:i:Lriess he warned him that he was to touch the shoulder of any porcon he had seen on the morning of 6J 5/2 at Masagala area rgglng a motor cycle and whom he later helped to drac., ASI' Elliot jlkemws (p.,w.7) stated further that Francis Alphonse (P.w had no hesitation in picking out the 1st and 2nd accus. from the parade. The two accused had earlier on during the preparation of the parade when 40 Francis Alphonse was pl. away from the place to stop him fro)-n eeing its precaration, told to take any position In the parade they liked and had in fact done so. i t - 122 The 1st and 2nd accused were arrested on 7th May, 1982. The 1st accused saw rutll and hoosa were searched for fire arms but none was found0 Th 2nd accused house was also for fire arms but nothing was founth The inVestigatin6 otcers in this case have stated that they had search warraht, a fact which is contested by the defence 0 I shall cOme back to this issue later on in the judgment. The accused have als. questioned the legality df their longer than twenty four hours stay in poiice custody following their arrests before they were taku t cour t I shall ayin cbme to this issue 10 in due course. The 1st and 2nd accused gave evidence and called witnesses They both raised alibii detailihg their movements on the 6th May, 1982, the day Lutz i.lante and Alnoor Sumar were killed Martin Jimy Katera, the

1st accused, is a businessman, owning a saw mill situated at the Kiloleni Industrial area. He statec that he had left his home at Cheyc area 1 Tab.ra, to go tP the office via the house of the 2nd accused. He had a day before accepted to give a lift to the 2nd accused.. The 1st acused owns a motor cycle. He got to the house Of 20 the 2nd accused about tY•. same time he had left his home - i.e. 8 a.m. He lives near the 2nd accused. He and the 2rd aused were aoree d ::hat they first go to the Urasa Batteries to take the 2nd accused battery. The two accused, riding a motor cycle with the 1st accused In cntrol, got to Urasa Batteries between 8.15 am. and 8.30.. Urasg (p.W.16), the proprietor of the Urasa Batteries attended them, apparently promptly. They left Urasa Batteries at about 8.45 a.m, heading for the 1st accused office. The 1st te' .ified further that in accordance with 30 his acreem. at with the 2nd accused, he was left behind in his office leaving the rnoto. cycle under the care of the 2nd accused. The 2nd accused left to do his work. He, 1st accuse4 left his office for break—fast after which he returned to his office. He was loined by the 2nd accused between 10015 a.m. and 10.30 a n The 1st accused testified 1further that when the 2nd accu- sed returned, to hio off i , he (2nd accused) requested that he be cscrrted home. The 1st accused obliged and set out on the motor

cy:le to escort hisfriend. The two did 40 not, however, get to 'd.e house of the 2nd accused directly. They were stopped at a place near the General Tyre Offices by the driver of an Army motor vehicle. He, 1st accused knew the person. He was asked by this driver whether or not he had any information of a theft at Kaflyeflyera stone guarry and he (1st Accud) v'-ljed that he had no such information, y 12.3 — The driver of the Army motor vehicle left him and the 2nd accused on the road. te ad the 2nd accused debated whether r not they should go in search of mce inforrr3tion about the theft. He was pursuaded by the 2nd accused to go to Kanyenyera in search' of this infornation., He (1st accused) decided th' go and at the same tii're to take this opportunity of the visit to remind the stone guarry people to fulfil his orders tot sand and stone dust which he uses for making bricks. The 1st accused stated further that while on their way with the 2nd accused to Kanyenyera, they' stopped at a place 10 where they had found a crowd. They reconised one person whim they called to ask about the reason for the crowding. This place was not far fror. Kanyenyera. The 1st accused stated that this person told them that a motor cycle had been stolen. 1st accused estimated the Ume that this informatior was passed to them as about 11 a.rn. hey were not satisfied with the accuracy of this inthrmation

and 'ìence set for Kanyenyera Te 1st aicused stated that at Kanvenyera stone guarry, they found the h.2ad clek of the guarrv 1:10 is called Winchi .20 He asked Uinchi ah k. the Lhe* , . he 2.:d accused had been informed of by the A::my dr1vr they had met near the General Tyre Offices. Winchi told them (he and the 2nd accused) that thieves had stoler a motor c'cle ef a certain European and that this European together ;ih cnother person had been killed while trying to recover the stlen notor cycle. The 1st accused stated that that was the first time he had heard of the killing and that he had learned of this in the prcsence -"F £h -' c - hc. r'era Stone guarry. He did not know the placa the killings had taken place nor did 30 he go there. This ihfor:ation satisfied him and he decided to return home after he had reminded Winchi to 'satisfy his orders. The 1st accused went on €u detail his movements of 6/5/82 by stating that he arid nd accused set for his home to put oil in the motor cycle and to collect his clothes to take to the 1.auridry. Before qetting to his house, however, he was requested by 2nd accused that they pass via the White Fathers Mission so that he (2nd accused) may make payment tq 40 the White Fathers. The 2nd accused adpurchased a motor cycle from the White tathers. The 2nd accused hadpurchased a rtor cycle from the wIt th and the payment was to meet

this ebligati on. - - . - - 124 - The 1st and 2nd accused agreed that they visit the White Fathers after depositing the let accused clothes at the laundry. Accordingly the two took the 1st accused clothes to the laundry and later went to the White Fathers Mission. The let accused estineted the time of their arbivai as 11 awn.. The 2nd accused made the pay;ent and a receipt 1ias issued to him. The let accused of.. . could not put oil in his motor cycle when he ;ot to his house as he had hoped. He accordiiiy decided to go to a petrol 10 station to put oil. ie and the 2n.d accused rode the let accused motor cycle to a petrol station; he remained at the petrol station to put oil while the 2nd accused went to the Immigratinn Offices. He (1st accused) put oil in his motor cycle and went to join the 2nd accused at the Immigration Offics. He found the 2nd accused tdking to the Immigration Officers whom he greeted. He then waited for thQ 2nd accused to finish his business. After this visit, he 1st accused took the 2nd accused home and he then left for his house 20 for food. The 1st accused stated that he had left the 2nd accused at 1 p.m His house girl prepared food for him. While eating, he was joined by Erasto Bigabo .(D.w.3). This was 2.30 p.rn After food, he left for • his office taking the Schcoi. Street. He stopped at the Police Station to have a look a the motor vehicle on which

Lutz Kiante had earlier n in the morning riden. The 1st accusd stated that,he knew the driver of thismotor vehicle, Alnoor Sumar, now deceased and felt very sorry at what had ha.pened to him. He was 30 found there by Detectiie Sergnt Andrew Makaza. After an exchange of some greetings ) he left to go to his place of work where he stayed up t 4.30 p.m. when he closed. He again passed via the police station from his place of work. He was stopped by Detective Sergent Andrew Makaza who wanted to know from him (the 1st accused) about the registration of his company. He was asked to go to the Police Station on the next day to give the Police officer a photo copy of the registrati- • on certificate. The 1st accused went on to testify- 40 that he then left for. his home whore he changed into sports wear and joined his young brother Erasto Bigabo - 125 (D. 77.3) to go for Games at the Ta.1ora Boys Secondary School. Martin Jimy Katara, the 1st accused also gave an account of his moveirents on 5/5/82 He stated that he had got to his office at 8.30 a.m passing via the TRIDEP Of±iOes to collect a cheque which he stared he banked on 7/5/82. On his arrival at his office, he found soie customcr. o' h waitug fr him. He talked to them nd then returlLed to his house to collect some money, He than returned to his office to ,ive 10 shs.1,000/= to his cistoiiers that he had found in his office

earlier on the day. His customers loft and he (ist accused) continued wilh his work at the office up to the afternoon when he le't for foOd at his hOme. After lunch he returned to his office whe.e he remained till the time he closed his offic.2 and sot for home. The 1st accused furthe:': stated that he received two guests on the evening -. one Mr. Willa and "a colleague of his. These were from the Ministry of Agriculture Training and Research Institut30 The 1st accused 20 stated that he stayed with his guests up to 8 p.m. when they left. He did not go out. The let accused stated in his examination in chief that he could not remember whether or not he had seen the 2nd accused on this day (5/5/82). The 1st accused in iis ovidence further stated that he had employed lucas Mvula (p,w.15) to make bricks for him at Cheyo and Kiloleni Industrial area. He was positive that Francis Alphonse (P.W.2)1 was not one of the labourers that used to h.lp Lucas Mvula (P,w.15) 30 make bricks. He further stated that he never made payments directly to tie labourers assisting Lucas Mv.ula (p.77.15); these were recruited and Daid by Lucas Mvula (P. 17 .15) himself; the contract to n'ike bricks was between him (1st accused) and Lucas Mvula (P. 1,7.15). The 1st accued also testified on the conduct of indentification parades which were held at the back yard of the police st.tion.. He ststed that

on.10/5/82, at about 1145 a.m., an i&?ntification parade in which he had taken part as one of the two suspects was held. He 40 and the 2id accused were called out by names to participate in the parade. In this parade, there were - 126 five identifying witnesses -. tho first one was a woman. This Witness picked out the 2nd accused as the person sic had seen on 5/5/82. I pose hero to state that the 1st accused here refers to the parade that was conducted by ASP Zavalls (P..6). The identifying witness was Lucia Malawa (P.W3). The 1st accused further stated that at this pare.e, three other people were p 'kod ' '. ifying witnesses and that Maulid Shabani (P. 11 04) had stated a; the parade that he knew only one o±nIs assailants and that that 10 assailant was not on the identification parade. The 1st acuused stted further that notwithstanding hesitancy by Maulid Sha'oani (P77.4)9 ASP Maneno Zavalla urged him to look at the participants more -' carefully. The 1st accueed rther testified on the identifi- cation parade organised by Inspector Kikedes. We stated that the 2nd accused had èomplained to Inspector Kikedes that he could not te part on the parade because he was dirty while the other partici 20 pants were not but was told by Inspector ICikedes not to worry as the conduct of the parade was just a fomality. The first identifying witness on this parade looked very closely at them

on the parade and then told Inspector Kikkides that he could identify nobody. The identifying witness gave a reasOn that his failure to identify anybody may have been caused by the fact that the people he had seen at Igoinbe on 5/5/82 may have changed their attires. The witness hesitated to "cotnit ims.lf but after being urged 30 by Inspector Kikkides 9 picked the 2nd accused as the person he had soon c.t Igombe on 5/5/82 in company of another person at about 4.30 p.m I again pose to point out that the isv accused was here referriiig to Henry Mgogolo (P.v.5) as the identifying witness. The 1st accused stated further that he had as one of the two suspects participated in an identification parade organised by ASP ibiliot flemwa (P..7). He stated that Detective Sergolt Priskilla (P. 71.10) escorted a person to the identification parade. This 40 was the only identifying witness for that parade. The witness identified him (1st accused) and the 2nd 128 1st accused on this day up to 1 p.m. There exist some differences of times that :.tie iwo accused have testifIed to •regcrdirg their mo -7eme.nt. he 2nd accused 'stated that fl-hen his friend, 1st accsed got to his house, he found him still in bed, i-ie wa; .aween by o'e of the two dependants of'his - a school girL called Bertha. He woke u.p and quickly prepared himself for what turned out to be a heavy schedule. He and the 1st accused

went to Urasa Batteries getting there between 8.30 am. 'nd 2 th 1 accused then left to go to the accused lc n of work whele he loft the 1st 10 accused. oci: the 1st accused motor cycle and went to see Julius Na 'arcs (ciJ) at the offi'c;s of the Business Machines Tanzania Ltd he purpose of this ',r±.sit was. to take Julius Manyanga (D.W.. 3.) to I'i/S Patel dvoca'ces to swear an affidavit for him to enable him gef a passport. The 2nd'.a'ccused stated that he found.Juliuz i4anyanga (.w8) at his office and the two went.on the motor cycle he (2nd accused) was riding to the • offices of 14/S Patel Ad'ocates. They found Mr. Pate'l of N/S Patel Advocates. Julius Manyanga (DW) swore an affidavit after which exercise the two parted company 0 He(2nd accused.) .20 then went to the 1mra.gc -:tion Oifiwhere •he took his Temporary Pass application forms for processing He left the application forms under tho cai'e of an Immigration Official,, Raymord Tairo (D.W.7). Raymond Tairo (Dw47) was to hand over the application forms to the cashier at the office, The 2nd accused gave the time that he had left his application forms with Raymonfl Tairo (D.':i.7) as sometime before 10 a.m. He left to take his photogap•hc for'att.estation. He, however, decidec to via T uijO Petrol station to fuel the motor cycle While there, the Manager of the National 30 Housing Corporaticn Tabora, oaled Asalile

(D.w.")1 requested the Ind accused for a lift to the Textile Godowns of the Regional Trar-3 ing, Corporntion, Tabora. The 2nd accused accepted to give a life to the Manager of the National Housjng Corporat±on., The 2nd accused wer: on to testify that..he'took D.W.6 to the plac.. he (DW06) had wanted to got D.W.6 did not stay there long t he 2nd accused waited for him, at the TABODECO petrol station and then set for the - ... - a.. i 1 -. 130 while evaluating the hol vidonce. In my. suiing up address to the lady and gcntleman assessors i I directed. the lady and gentleman assessors and I now remind myself that "..,burden of proof omains on the prosecu- tion throughout; and no findings as to credibility, guilt, or fact èhall be errived at until the evidence on both sides has been nibmitted to scntiny. LTo do otherwiFel iinolies tha there is sorD sort c-f onus on the accused c-rson co put forward ca ecccitabe version such as to rebut s :prc:ecuion case already 10 found tc be true. No such oius of,course exis'ts": Sulurnani_Oy v. Republic: of Ugda, EiuA Criminal Appeal No. "1 of 1971 (unreported). It is with such basic approach that I shall hereby shortly proceed to evaluate the evidence on reoord I also told the lady and gentleman assessors that there was no direct evidence on the alleged shooting of Lutz Kiante and Aln-or Sumar by the tv.'o acusc•d1 The entire evidence before the

court is circumstantial evidence. I directed the lady and gontciaan assessors that for the 20 " circumstantial evidence to be coi:.clusive must satisfy two pre requisities: it nust Ziot only be consistent with the guilt of the accuced, but must equally be inconsisent with the guilt of anyone eice: Clifton Hoyte v. The_Queen (Crimiaal Appeal N:-. 12 of 1977 of St. Vi.ccnt) reportee in. the Common'ealth Law Bulletin Vol. 4, No. 4 c October, 178 at eB-66, or as was more elocuently put by the Lihicar Ocurt of Appeal in the case of Kipririrapske and Kimure Ar2p ivlutatu v. R (19 4 9) 16 1 'cA 135, 135: 30 "in ordor to justify the infe::ence of guilt, the inculatcry feats must b? iuoompatib1e with the innocence of the accused and incapable of expla- nation upon any other reasonable hypothesis than that of guilt0 .he hurde. of proving facts which justify the drawing of this inference from the facts to the exclusion of any reasonabie hyothe- sis of innocence is on the p:'osecution, and always remain9 with the prosecution. It is a burden which never shifts to the party accused.It 40 I ftrther warned the lady and ent1eman assessors and I bear it in mind that tthat an accused person is - 13 - proved to have lied in h:c ':rLce in. his defence on a charge of murder does not 9 howcver, itself justify a conviction of murder or absolve the trial court from ascertaining from the whole eiJrnce

whether the crime was murder or marLslat.ghter; H. Rv.Miologa 14 EACA at p. 121 and further that "jf am accused person in giving evidenco in his defere corrrits perjury he can be unishod. for -ft.at Ience Iu his perjury can not be pre :i in tru murder whore the evidence for the prosocution does not 10 justify that conviction.': Rv.C- M. ­Ibrahim 13 EACA 106 - basic principles which have been .conied by the Tanzania Court of Appami in tie case of Zabron Msua v. The Republic Cririinal Appeal No. 7 of 1979. I also va.rned the lady.and. gentleman assessors and I bear the fact in mind that no onus lies on the accused to prove an a libi Leonard Aniseth v. R (1963) EA 206. In evalt..ating th evidence I dircted the lady and gentleman assessors and I now warn mys:.lf that an impression as to the demeanor of a witness ought not 20 to be adopted without testimg it eainst the whole of the evidence of the witnese in qustion: I3yaniungu s/o Rusilibav, R (1951) 18 EACA 233 or indeed without testing the accuracy çf the formed impressions by the doctaéntrL-.ry evidenc, by the contradictions and inconsistercics in the cjidence Rat ilLal Gordhuhai Patelv. La1ji.akan1i (1957) EA 314. Tith the above outlined basic princip cc in mind 9 I proceed to evalu- ate the evidence before me. John Stephen (.w,i) was a confident witness through out the giving of his 30 evidence. His ans;ers to the quesGions

put to him were straight fcriard ani clear. At the end of his cross exeeination, it became clear th't he had made a mistake cn the correct colour of the nndguards of the motor cycle he had steted that thcj wro red while - in fact they wore white. Te had . ..iso said while under examination in chi s -f' that the watcIrnan at the IgOmbe Water Dam were responsible for the guarding of the entire water daii and not only Iie area around the pumping station, a position e lrJ;cr adopted while 40 under cross-examination. I consider the above errors minor and not sufficient to we±rant the disregarding I 132 :of John Stephen (P.T.l) evidenee which is backed in maay material deGalls by chQr witnesses. His testimony up to the stage he, Ttz Klaflte and Maulid Shabani (P07'.4) gct to the sand guarry where he was CD left behind by Lutz Kiante and Msu.lid Shabani (PT.4) is fully supjTorted by he evidence bf Maulid Shabani (P.1.4). Ms.ulid 3naba.i (p74) further supports John Stephen (P..i) evidence that he had been taken frst to the Police Stetion end laterto the Kitcte G-ove:'nment Hospital for teatment by the said John 10 Stephen (P.v7.i). The descripticn of the scene of crime b:! John Sta hen ic similar to Ghat given bj Detective Sargent Jama (P. 17.12) and Sub Inspector • Sakawa (P.'',l9), Only that Detective Sorgent Juma (P..12' did not know why the lorry that Alnoor Sumar, the second

ó.ecoesed in tiis case 9 was leaning more on the one side. Joha. tephen (P.t,l) had given a reason for it in his evidence i.e that oneof the tyres of the motor vehicle hnd no pressure on, a statement which is fully supported by the evidence of Detective 20 Sergent All (p,17,-1), the police photographer. In the light of this, I reject the defence submission that John Stephen's participation in the case was motivated to save his own akin :or failure to guard the house of Lutz Kianto leading to the stealing of a motor cycle. John Stephen had indeed stated that he was not charged with this duty, a reply I accept as true. I find John Stephen an obsrvant and truthul witness and liho the lij and gentleman assessors, I • accept his evidence as truthful. 30 Maulid Shabani (P..4), a quiet spoken youth testified slowl: tnt without hesietion. His testi- mony remainci unThakon during cross-examination. I, like the 1ae' enc gentle:.an assessors, accept thiS witness as a witness or truth. Francis lphonsa has been va..iously described in • this case by the ce±enco as the ey witness as well as a mysteiious one. t have abc'e outlined his evidence. His testimony regar-;ing his prior knowle- dge of the 1st a:cusod has been fully suported by 40 the evidence of Lucas Jeula (P.l5). The differa- nces in the testimonies ef Francis Alphonse (P.7.2) - 133 and Lucas Mvula lie in ot,hor arcas to which I

shall precently borne but not on the basic fct that Francis Alphonse did indend work .aking bricks for the 1st accused a Kiloleni Industrial area under the care of Lucas Mvula (p.T,15) who had entered into a labour only bontract with the let accused. Ltcas Mwla ( D1 5) was to employ his own labour tb exec-ute the contract. Lucas Nvula ( 1P15) ras definite that the 1st accused had been visiting the Kiloleni Industrial area when Francis Alphonse (P..2) was uic1er his 10 employme:lt and that Francis Alphonse must have seen the let accased at the site. Lucas Mvala also supported rancio Alphonc' (F.w.2 testimony that on one occasion he Francis Alehonse) was paid by the 1st accused and that the 1st accused had ±old him (Lucas Mvula) that when final payeets were made to him (p..15) for the work done t:a: particular payment to Francis Alphonse would be taken into considerationo It is a fact that Francis Alphonse did not mention the same number of days ho had wrke I for the 1st accused 20 through Lucas Mvula (11 .'.15) at Kilol?ni InJustriü area as that mentioned by Lucas Mvula, for while he had mentioned three days 9 Lucas Mvula mentioned two days. It is equally true that the testimony of Francis Alphonse (P. ". 2) on the ni'rnber of days and type of work he perfoxed for Lucas I\ffvula (P.7.15) at Cheyo area for the 1st acused differs that of Lucas Mvula. Francis Alpinnse (P.w.2)

mentions two days of brick makin; work while Lucas Mila mentions that Francis Alphonse had only worked a Cheyo for one day 30 watering bricks that had alrcdy been made by him and other labourers. But the most crucial point as I see it isthe fact that Francis Alphonse allegation that he had worked for the 1st accused makina, bricks and knew him before 6/5/82. The statement is supported as I have said by Lucas Mvula (P.T,15). Lucas T!fvula (P..15) a mason and brick layer was closely examined by the defence. He was straight forward and remained unshaken by the questioning. I accept his explanation that in his police statement 40 which w.ns not produced in ciurt as an exhibit 9 he had not igaunticndd the names of all his labourers and that 134 - • the 1st accused had directed him to his (1st accused) house when they first ir.at at the Redional Block Traffic Isiand because he had not •bee.n. specifically asked bouT; the fact and furth r that he hed been questioned by two different off Ic iajs seiarateiy and • at different times and that he had been to the police station throetimes and that in between his firt and second visits, two weeks h el.osed His police statement was recorded on his thid visits to the police. 10 The let ocomeed does not diepute the fact that bT Lucas ila (P77.15) ae been employeim to make bricks for him at C.'aeyc area and Kiloleni Industrial area on the labour

oaly basis He further does not dispute the fact that Lucas Mvula (P..15) had employed several labourers to help him execute his contrac -- . He admits that he could place on1r faces of some of those labouroes but was nonetheless firmi that Francis Alphonse (F..2) was not one of them. The 1st accusol coi... d net remember the number of 20 labourers Lucas Mvula (P,I5 had employed at Cheyo though otated thatF.1 had o:ployed only one person at Kiloleni, a statement that supports Francis Alphonse (F.12) assortio on the matter. But notwithstanding this fact, the 1st accused stood firn that Francis Llphonse wes not )nc of the people employed by Luc as Mvula (P. To 15) I find Locus i.vula (p..i5) a truthful witness and that he and not the 1st accued was bettor suited to .:now thse ha employed to work on bricks. Accordi- 30 • ngly I find that Francis Alphonse (P.7.2) had worked for the 1st accused in a work involving brick making prior to 6/5/82 and that Pxtncis Alphonse (F. 77.2) knew the let accused before 6/5/82. I now come to the quejtion of whether or a• Francis Alpbonse (P..2) .ectually saw and helped the 1st and.2nd accused rush a motor cycle at Masugala area toards i'ab:ra for a distancE: of about seven hundred ac(.-o. Francis Alphomse (P.2) had not correctly doccr* 40 bed the colour of the mud guards of the motor cycle that was taken from the house of Lutz Klante on -

135 6/5/82. However his desoription of the scone Of crime regarding the openness of the area and that the road at the place was straight and the grass was short is fully supported by the evidence of Iaulid Shahani (p07,4). The evidence of Francis Alphonse (F.02) on the visibility of the scene of crime is further supported by tat of Detective Sergent AU (P;.21) plus the photoprn.phs (ee.hibit P 11) of th scene. Indeed even the cLfenco in its closing lip scmiseione conceded that the land around the scene of crime was 10 open lanth • Francis hiahonse had eta ted that a.tcr he had cut three poles and was on his way to town, he was passed first by a. motor vehicle going to Masogala - the direction prom whence he was coming and shortly after the same mOtor vehicle pass.d Lisi going to towns He stated further that this mobcr vehicle was being driven by an Indian. This evidence is substantially supported by the evidence of John Stephen (F;.l) and Maulid Shabani (LTT.LY ,. a o ,John Stopher. 20 (prtl) and Maulid Shabani (P. .4)., a motor vehicle appeared from the di:ection of the town and found them at the sand gurry. From t1•e driver of this iry they asked whither people. had been seen by him drag a motor cycle. They receivcd a positive reply to this enquiry.. The two witnesses (F.h1 end, p0704) futher stated that soon after this, another motor vehicle goin to town appeared and on it

Lutz Klante and Maulid Shabani (P7.4) climbed There is no evidenen on rabord contradicting Francis Alphonse 30 (P..2) concerning the nationality of the driver of the motor vehicle teat had given Lutz Kiante and his party information tet two people had been sighted by him dr.g a meter cycle some distance away towards towi. But both thosc motor vehicles wore lorries and had, acc9rdin to the evidence that I have already accepted, appaea the sand guarry within a short time of each ether going i .the ..pposite directions. There is an estimate of distenc made by John Stephen (P..l) which estimate I accept an an accurate one 40 that the distance between the sand guarry and Masagala was about one mile. I find it a fact that the one i I motor vehicle that Francis :lphonse is talking about which had passed him first while coming imoni t1e directien of the town and soon after eoing to toi are these same motor vehicles that John Stephen (1 5 07i) and Maulid Shabani (I;hT, 4) testified to. These were the motor vehicles which Joan stephen (p.l) had described as of Isuzu and Morcedo8 Benz 1mske respocti- voly I do nc.t think tho motor vehicle that he had seen go to town and stop ahead of him is the one that John Stephen (r. hi) eventually got on to gel to the 10 scene of crime. Francis .iphonsa description of what happened subsequent to tho stopping of this motor vehicle i.e. shootings etc.

rule out this possibility. Francis Alphonse could not have testified to this fact if he had not been within the ares. - it is too minute though a significant detail for one to dream about. shall presently cone to his testimony that he had soon two people disembark - a European and an Indian - from the lorry that had passed him going to town on this morning of 6/5/82. I find as a fact thn.t that Francis 20 Alphonse (F;.2).haa been st IViasagala are on the morning of 6/5/82 and did hole the two accussd push a motor cycle ae he (P. 17 .2) has testified in court. Lot me first consider the defence submission that the evidence of Francis Alehonse (F..2) Inc taken with extreme caution becousohe (Francis Alphonse) had not reported what he testifiad in court to e.uthorities sooner than the evening of 6/5/82. I must t once point out that I da not find Francis Alphonse (P,'.2) was that late in reporting the crime to his ten Cell 30 Leader to warrant the court to place him within the- category of witnesses in sympathy with a crime comini- tted or within a class of acco:Tzplioes. I accent the explanation given by Francis Alphonse thaI whet he had witnessed on tho morning of 6/5/82 was shockifig to him and that he needed time to pondor the matter before ma.kiig any move. His reactions have to be considered in the context of his back ground - he appeared rural to me. To such people time lapse

of the fw hours did not effect the matter either way. 40 Francis Alp.bonse (P..2) stated that when he saw the 1st and 2nd accused drag a motor cycle, it was already I. 7 - morning and there was plenty of light. I aOcept him, like the lady and gentleman assessors as a trnthftl witness. I accept that ho saw the 1st and 2nd accused drag e. motor cycle towards town at Masg1s area and that he had helpod. them drag it for a distnnce of seven hundred paces and that he had. offered this assistance which was accepted by the accused because the 1st accused had been his omployer I further find tiat :hon offering .;his assistance he (P..2) never susp:ctod anything was a miss. He was thus in 10 a calm st:.te. I further accept that there was light at the time and th-t though that was his first time to have seen tbe 2nd accuse3t 9 he was sufficiently near him and had good opportuuity and time of observinc, (him) the 2nd accused and noting his • idcatity. I firther accept Francis !ilehonso evidence that he had scan the 1st an:: 2nd accused drag the motor cycle qdaead of him when he was on his way to town carrying three poles. The area we arc talking about 20 as already noted is an open land I further accept the evidence of Francis !phonse (P..2) that his view had boon temporary blocked by the motor vehicle going te town, which motor vehicle he said ws the one thea had dust passed him going in

the opposite direction earlier on and: that he had seen this motor vehicle stop. I accept his evidence that he soon after heard gun shots - whose sound had shocked him as if he was the one being shot at. The suggestion that Francis Alphonse (P,,2) is a liar and could 30 not have been shocked because he (P.7,2) lives near an amy range and hers sounds caused by gun shots and furth:r tht he (2.7,2) being a resident of Kilcleni near the Ian.cnyera stcne guarry hears big such sounds has no merit. The gen shots he hears eminating from the amy range are different from those he had thought were caused by bullets aimed at him. Itis a fact that one doss not hear the sound of a 'oiillet fired at him- if that bullet has hit the mark but this fact does not reduce the impact on one 40 who is under the impression that he we.s a target. Besides Francis Alphonse shock was not only caused by the sound ceusod by tho gun shots but also by the thought tht he was being fIred at. In neither the case of sound coming from the army Dángo nor the stone guarry at Kanyenyerbu1d one 1ivig at liloleni near the two pieces have the feeling that he was then a target At the range or going to be blasted, with the stones. I fiii'ther accept bib evidence of Francis Alphonse that ho had soon th 1st and 2nd accused run away from the scene of Crime soon after he had hc.rd the 10 gun shots. I have above statd that

vhilc Maulid Sha'oani (P.,4) stated in his evidence that only Lutz Kante got off the motor vehicle at the scene of crime, Francis Alphonse (P.2.) stated that he hod seon two people. I profer in this aspect the testimony of Meulid Shabani (T..4) to that of Francis Alphonse (P..2). I further stated above that Francis Alphonse had made a mistake on the colour of the mud guards of the motor cycle. I find both these errors minor 20 taking into consideration the support he gets from other independent sources. These are not the sort of errors that should ,~6kb a court disregard all of F. 71 2 evidence. I wish to state further that hc could not have im:nufactured his, evidence just because Lutz Klante, an expatriate, had been kiild out of sympathy as had been suguested by }'r. Kwikim.a, the learned defence Counsel. I had warned the lady and gentleman asessors of the danger of relying on th identification of an 30 accused by a single witness, I now bear it in mind that in such a situetion I should consider not only the credibility of the identifying witnoss but also the possibiity of the witness having made a riist&e: see Mnzavas, J. (as he then was) in Athumani s/c Sha'bani v. R 1976 LRT n.

15. In the present case, Francis Alphonse (Fw2) had seen the thinas to which he hab testified to when there woe light and while in a cool atmosphere without any fears - excopt for the moment that followed the shootings. He further had 40 the opportunity and time tohsorvo the two accused at close quarters for a distance of seven hundred paces when he was helping to push the motor cycle and later. when he was behind the accused alter the cutting of the three poles - when he was returning to Tabora. The court was addressed on the need to look for watèrtigt'evi'dence of identification in .a case such as this and R ,. ya Eria Sabwato (1960) EA 174 was quoted in Suport oi' the submisson. I arnod the ladyand gentleman assessc.rs and now remind myself that where the evidence alleged to iiplicate accused person is entirely of identification, that evidence must be io absolutely watertigIt to justify a conviction. Francis Alphonse (P.W.2) as already pointed out above knew the 1st ac.cud before 6/5/82 when he saw him push a motor S. cycle.. His testir..ony bs substantially been supported in all major' tcints . his observatjn was notu made out. of fear. He had for example stated that he had sen the 2nd accused carry a gun, Maulid Shabani (P.w.4) also talked of one gun.. His evidence is not of a person prone to exaggerations he only seems to test-ify on matters within his personal knowledge.

. 20 Lucia Ngalawa (P,W.3)identifi,ed the 2nd accused as the person she had seen on the early morning of,. 6/5/82 She was insistent that at the time she saw the 2nd accused on the way and greeted him, there was already enou-gh light to facilitate correct identification of the 2nd acoused I was very isurcssed by the composure in the witness box of Lucia Ngalawa .(P.w.3). 'She was confident and straight forward and answered the questions put to her without difficulty. She refused to be dragged into issues she knew little about like whether she could 30 identify the area of origin of the person she said she had greeted on the road that early morning by the way the person spoke She was no phonetist. If she had heard of the Professcr Higgins and ?iss Eliza Doolitle, chara- cters in the p'ay 'titled Pygmalion which has been screened' as "My Fair Lady" she (P.w3) may have suggested that she had never been a student of Professor Higgins. Taking into consideration the way she found herself involved in the giving of ev!r'ence in this cuse, I would not say that.she was a witness who had come forward to testify 40 because of sympathy for Lutz Kiante, an expartriate, but because of a noble sense' of civic duty '•' - 14C- to help in criminal invesi.;rtioris whore one can That her brother Sylevester did not :anage to identify any body on the parade is of ne moment - each peron has his ovth

individual powers of obeorvatien. I:find Lucia Ng'1awa.(F.1.3) a witness: of truth0 In my summing up to the lady and geitloman assessors regar- ding thç c-Vidonco of identification by. Lucia i'Tgalawa (p0r03), I told them that sl'..-id they find. the conditions fevouring correct idontification of a person were unfavourablo at the time Lucia Ngalawa 10 (P..3) sow and greeted tho person she maintains is the 2nd accused and without projudging thoi4' assesent of the evidence of Francis Aiphonce (r.T.2)9 1 directed them on the relevant law relating to an identification of a person WnOII the prevailing conditicns do not favour correct identificst on. I now warn myself that the true test in the case of a single intifying witness whom the conditions 10 not favour •.orroct identifiation in not wheeh-r t'-,!ae ovidonco of such a witness is reliablc. i witnacs could bc truthful and 20 her evidence apparently reliable. .Notithstanding this the risk of an honest mistako, particularly in identification may still x±st. The true test in this case is 'abethor her evidence of identification can safely be accepted as free 4from the possibility of an error: Jbds,lleh bin We:-ido V 9 R (1953) 20 Ci 166 and Roria v. H (1967) E,..

583. In the circumstances partaining in this case 9 as stated in Abdallah Wendos case, (supra) at page 168: "That is needed is other S evidence, whether it be 30 circumstantial or direct, pointing to guilt, from which a Judge or Jury can reasonably conclude that the evidence of identification, athowh based on the tstiiny of a single witness can safely be accepted n free from the possibility of error." The 1dy and gentleman assessors accepted the evidence of Lucia Ngalawa I also accept it as truthful and at the same tine find that at the time she sew the 2nd accused and greeted him, there was enough light to. facilitate correct.identification of 40, a person; 'Ghc conditions were not therefore unfavoura- ble for correct identification. Notwithstanding this - 144 finding, one gets corroboration of the identification of the 2nd accused by lucia Uga.iawa (1 - .3) from the evidence of an.cis Alphonse (1P0 17.2) who had seen the 2nd accused and 1st accused push a motor cycle towards Taboro soriodistance. away and at different time on the samc momma. Francis dlphone (P0 .2) and Lucia Nae.lawa (P.3) live st differ mt places and had reported of That they i::nsw of eha Oaso to different authorities and with differing pr9mptness. Henry Mgogoo P.h5) did notin my evaluation 10 of his evidence 9 fare well. He is, as noted above an engineer by profession; the learned defence counsel Mr. Kwik

inn he s SU iittd that the witness has also ' engineered hie evidence. I would not go as far as that but Henry Mdomolo (P.7.5) evidence is full of o ontra dictions, errors and eve.sivonee s. The evidence of Detective Constable Raymond (1-1 .7.8) which I find truthful for example shows that Henry Mgogolo (P..5) 7-7 was wrong when h stated thot Detective Sergent iVianyama (P.T.13) see the person who hd taken care of 20 him before going to the identification parade.. Fhl3 evidence confirms that of Detective Constable Raymond Henry Mgogolo (F.h5) had been kept in the office of tho CCD bofore being teken to the identifi- cacion parade at the police backyard. The office faces the School Street and one could not thus have seen its preparation.. He nonetheless said that he had been put at a backyard office before going to the parade and that he could have seen the preparation of the par.de... I found Henry Mgogolo .(r..5) emotional 30 and easy to lose his temper especially when his judgement was being questioned. He as evasive and his ane7ers had the appearance of nnticipeLting,othor questions. Thcuvh as I hove alroa dy ndicstcd would not go as far as libelling him a liar, I would hesta- to to act on his evidence. In so holding, however, I do not thereby accept the defence submission that he (P..5) had identified the 2 n d .ccused because of his prior knowledge of the 2nd accused. The

accused had (F0T05) 40 themselves stted that Henry LTgoggclo was hesitant in identifying anybody on the parade; this statement doss not go together with the assertion 11 - i4- that he (P0.5) had identified the 2nd accused because he had seen him (the ocono accused) at the Tabora Ind Office where h (11 .5) hnd occasions of asking the second acbused to pass Lassages to one Hengolele 9 a fomer working colleague of the 2nd accused. I have above noted that Franc±s Ijlphcnso (P,.2) knew thc, let and 2nd accused by face e.n. not names. LuciaNgalcwa also knew the 2nd accused fece. i7bile Frncis :lphonse had known the lot accused for 10 sometime i'oforc 6/5/82 and had on opportunity of seeing the 2nd accused at close rangc; and for some distance, Lucia Ngalawe (T',77.3) had only soon the 2nd accused briefly and ;c,rooted him. As alreedy mentioned 9 he is no phonotis'b and could only identify the second accused by face. It was thus imperative that identification parades be conducted. Several identification parades were held. Two were conducted by ISP Meneno Zevalla (p.06) oac by JSP Elliot IVDemwa (p.7) and one by Inspector Kikkcdos He was 20 not called to testify as he was luring this trial admitted at the ECMC 9 MoshL Lot me now address myself to the issue of whether or not the parades were conducted in accordance with the recuired procedure. The prosecution outlined the rules observed

and what was expected to be achieved thereby. The defence had, suggested during cross-examination of various witnesses that the suspects had been put in police • custody for longer than necessary so that identifying 30 witnesses could first see the-rn before they went to the parade. Th';re is no direct evidence of this and inded one.of the two suspects who were r.leased in July 9 1982 9 sttod when he appeared as a defence witness that no such thing' was done. I am satisfied that that police investigations did not sink to that level and tbat nobody was displayed to th identifying witnessess before the parado I on further satisfied that the location of the police lock-up and its design could not have facilitated this as well. I an backed 40 up by tle various Identific'tion Report Registers (ex.P.l, l2 and P3 and P 12) which show no complaints to that effect. I accept the evidence of F01T,6 and PpT,7 who coiiducted some of the identification parades as true0 In this light I do not accept the suggestion that people other than the two accused had been identified, at these parades. 7hile the 1st accused ricationed that three such other people were ± dent±ii. the 2nd accu eod reentionee that only two were and L.LCe who of tho Je teo eras identiliod twice over by two identifiyig witnesses. All the vitriceses that bc•etified to the identifi- 10 cation of the 2nd accused hy lucia Tha1awa

(P7.3 said that she did not have any hesitation in doing this. Even the accused admitted as much. All had stated that she was there to identify a person she had seen and ,reeted on tho nor'.iing of 6/5/82 - only the 1st accused maintained that they were told on the I% parade that she was there to identify the people she had seen on 5/5/82. tndeed the 2nd accused said the same regarding the introduction of Francis Alphonse (r7.2)ss an identifying witness I dismiss these 99 assertions as lies. I further dismiss th 2nd accused cridance that Maulid Shabani (7.4) had stated at the arade that he knew only one of his attackers ci. 6/3/82 and that ho seej no such person on the paraic ani that Maneno Zavalla (P.76) had urged. him to look at the participants more carefully. Only he (1st accused) has described this episode and it is not that small or insignificant to have escaped the notice of the 2nd accused Inspector Zlkkidcs was not called to testi'y for 30 reasons I have already stated. I have found it, for difeerent raaons that I have outlined above not safe to act on the evidence of Henry reogclo (P.w.5). The report on the conduct of the Parade was admitted as an exhibit On it there is no mention that the 2nd accused had complained to Inspector Kikkides on the condu.ct of the parade and that he was told not to worry as the parade was just a foxal±ty rther that Inspector Kikedes had

virtually pushed Henry Mgogolo (P.T,5) into identifying the 2nd accused. I IE have above referred to the incredulity of this assertion and I find that Inspector Kikodes had I I 14 conducted the parade in aecciriance with the set. procedures I further find that the 2nd accused never comlained to Detective Sergent Priskilla (P 7 .l0) about his and the 2nd acCUsed. identification by Francis Alphonse (P0w.2). For one thing she was not the correct person to when to complain she had only been responihle for the taking care of the wi -tiossieforc the parade and that ASP Mkemwa (rif 0 75 wculd nave eec'n the correct person to make coplants to and secondly because his alleged 10 complaints do not mari-S with 2nd accused assertion that ASP Mkemwa had inorned them that Francis Alphonse had been to the identification parade to pick the people he (P0 7 .2) had seen on 5/5/2. On the aamination of the evidence con('orning • the conLuct of the identification parades I nin satisfied that they were conducted basically in accordance with the procedure detailed in the case of R.V. Mwangp sjo Manaa (1936) ECA 29. The fact that the two accused were not given an opportunity 20 of getting into clean attires like the other participants in the parades was not of such a degree of irregularity as would warrant reducing the parades into a fuss and thus their dispagard Mwan:i Makita •v. The Republic (1976)

Kenya L. - 127 (EACA). Indeed LLI the fact that the accused and indee[ the other two suspects that were later discharged, were dirty on the parade did not lead to their being picked by the identifying witnesses. By 11/5/82 therefore, the police had for all 30 intents and purposes fiiod up their investigations on thf identiios of the two peopje they wre looking for in this case0 The police die, however, have in custody tour suspects up to July, 1982. Two of these suspects, Erasto Bigabo (D.7,3) and Katera (D.W.4) were, according to Detective Sorgent Major Manyaa (P..13) in because they closely resembled the 1st accused, their elder brother. I saw no such close resembled to warrant the causing of un.certa- initiesin the minds of the investigators that they 40 might release a wrong person. Again the four suspects were not sent to court within 24 hours of their arrests. Such actions by the police in these matters can. not pass without an adverse comment. I can do no better than to quote the words of the East Africen Court of Appeal in the case of Ngumbao Choma alias Chubalo and Kata Kazungu V. R,EACA Criminal Appeal No. 133 of 1975 (unrepoitod) "7e repeat what was said by this court in the case,of Shimebherov.R, Cr. App. No. 119 of 1974 9 (unreported) 9 that the practice of rounding-up all ji1d sundry who may be connected, 10 however remotely, with a criminal investigation and

detaining tiem unlawfully in police custody for quostioning [ strongly to be deprecated." The IIJ'eètigating fice-hn1d work the law in their iiwos ations of &ases. There exist differences between the evidence of Martin Jimy Katora - the 1st accused - and his statement to the police (exhibit DI). In hi evidence the 1st accused stted that then the 2nd accused returnd to his office on 6/5/82 between 20 10.15 a.m. and 10.30 a.m., ho (Jst accused) docidod to take the 2nd accused to the Land 0fico. He further stated that when ho and tho second accused set out only to stop on t.c way and t1k to the driver of the army motor vehicle, they were in fact going t the land office of the 2nd accused. In his evidence, the 1st accused stated that he had in fact been asked by the 2nd accuced and not decided by him to take him home. The intended destination is thus also different. The first accused testimony is also difthrent 30 from his police statement regarding who botwon him and.the amy drivrr soppod whom '.hen they met on the wayh In his evidence, the 1st accused testified that he had bcn stopped by thi: driver while in the police statement, t- ho 1st accused seems to indicate that the army driver stopped only after seeing him.stop. Again, the details of the exchange between them differs from the ones ho had sintod in court and that he had recorded in the po.ice statement. In his statement,

the 1t accused states that the driver had 40 told them that there were some Europens who had been killed at Kanyonyora while in his testimony, he stated that the army driver had asked them (him and the 2nd accused) if they wore aware of the theft at El -146 Kanyenyer. In tho police statement, the 1st accused states that it was h.i who had told the 2nd accused to go to Ranyenyora to find more information about the killings because ho ws anxious to know more as his (17,t acouscd) plce of work is rrby - a niile away from Kanyonyora. In his evidence, however, the 1st accused stated that hc decided to go to Kanycnyera after he had been pursuadod to do so by the 1st accused and after ho had taken note of the fnct that he was going to seize the opportinity of the visit 10 there to remind the people at the Kanyenyora stone guarry to moot his orders for sand and stone dust quickly. The let accused was rare detailed on what he had been told by the person he idntified os the Kanyenyera stone guaray foreman. He states in the statement that the foromn - one Winchi had told thom of the identity by race and niece of work of one of the victim of the foul play and that Sumar was the person who had told the European where to find the 20 people who had the motor cycle he (the i)rbpean) was looking for and had offered a hit to hii to the place. These details miss in his testimony. He, that

he however, states that it was libre/and the 2nd accused cane to know of the killing of two people. There is only a mention of one killing in the statement. In the police statement, the 1st accused mentioned that following their visit to Kanyonyera, they first passed via t1ho 2nd accused hone. The 2nd accused had wonted to check whether his children had 30 sent maize for grinding into flour. Thic visit is mentioned by the 2nd accuset in his testimony but not by the let accused. In the police statement 9 the 1st accused does not mention that he had given P. lift to the 2nd accused to go to the thite Fathers Mission Tabora to make payLlent, a fact to which he alluded to in court to having done. The 2nd accused left some details he had given in his police statement (exhibit P.5). He does not 40 for oxampic mention that he had made a break fast visit to ITJ or his visi b tO the Distrimt Magistrate Kimcnya. Again the ?nd accused omits to mention in lets police st - mont his visi to his home to check Tot other or net his chiJmron h"d, taken maie,,to the grinding mill. In his sttcncnt, the 2n accused mentions tht - 'ho had gone to see the Regional Land Officer at his otico on6/5/82 at 2. n.m. after h. had been droeand at his home by the 1st accused in ermr in nk ton thnso:'i in take his lu;gnge to llzoga. lie, howdy :r, did not find the 10 official in his office. The 2nd accused does

not talk of this visit in his idonc e; indeed ho stated that he hs.d stayed in doors from 1 p.m. after ho had br-c dropped. by the let accused., I have abomo wi1c outlining the hoce of the 2nd accused p•ein'l;ed cot tho.t tho esti.emiien of times of the novoiTlents lone together by the ewe accused were different in all thoeasOs. They dii'' :r from fifteen iinetcs to over hour and hil. In one instahce, the 1st sccuse:. montionh 11 a.m. nc the 20 time he had been to 'both near K"nycnyor and the Thite Fathers iTisien. Quit. aprt from thc fact tht the oboes ro distant eec, but the testimo- nies of the two eccusod shoe7 that thea had boon to place bsf ore getting to Kony eny cr and that following their Visit to Knnyenyera 9 they hanl,L been to several other places distances Dart beiLore icing to the aite Fathers Mission' It would not have been physically possible to be at two places at the seine tine- 1 30 I hove alrc dy pointed at some cbntrc, dictions existing in the ovid.ncc of the'lst accused and'that of the 2nd accused. Tho testimonies arc themselves contradicted by the evidence of their own witnesses. Lot no first with the evidence of the let accused. While the 1st and 2nd tceused persons are agreed thot often they hat. loft each other at I p.m., 6/5/82they did not see each other till 7/5/82 9 Kanera Katera (D.7.4) young brother of tho 1st accused state that the 2nd ecociced

had cone to. the 40 lt accused hone between 6 p.m. nd 7 p.m. on 6/5/82. There is olso the earaiesicn of Eresto Bigaho ('D..3) in court that his testimony in court was full of lies ant that his statement he token as dcscribine; the true state of events on the 5/5/82 and 6/5/82. Erasto Bigai' (D.77.3) admitted that he had not been to tho Tabora Boys Secondary School w±th the let accused on the evening of 5/5/82 to pla.y g2iies. Erasto Bigao (D.11.3) is an educatci maii and a young brother ef the let accused flo n.ust be knowing the gravity of the charge fcing his brother; indeed he had been for somotine alco one of the four suspects. The effect of his adeiiiseion in cort is to discredit him as • a witness. His sttem.nt to the police can not take thep1ac of his discredited evicienco Ro v. Ireri 10 aiiasShein.gos/o dwia 3 E'CA6l. In the fina - analyois therefore I dismiss his çntire evidence, even • that which ho maintained was true, as unreliable, It is dangerous to depend on any of it. Kenera Katere. (D,1c4) again contradicts the evidence of the let accused and that of the 2nd accused • concerning events at the house of the 1st accused on the evening cf 5/5/82. 71h i1e the let accused admitted under cross examination that he had net the 2nd accused on the evening b 5/5/82 hut not at his iouse end the 2nd 20 accused insisted that they (he and the 1st accused) had net outside the

1st acc.sed house heteen 4.30 p.m. and 5. p.m.,. Kanera Ka1-1era(D.W.4) i.iontions that ihe 2nd accused bdbOeñ to inside of their house between 7.30 p.m. and 8 p.m. and had participated in the conversation they (including t-ho 1st accused) had with his guests from Tunbi and that the 2nd ac usd had only loft their hone after their guests from Tumbi had departed. TT:nara as a vit:zcss was prepared to lie without a moments bcsitation. Even when caught 30 within his web of 1ie, he stuck to his lies. Conside- ring his evidence together eith his deanour, I find it not se to rely on his evidence. I reject it I have while outlining the evidence of the 2nd accused also pointed out the area of contradictions in the evidene of (abrie1 Ju stin (D.w.5). Let me now look at these contradictions and make findings on the evidence pf G-abriel Jü.tin (D,77.5). He had. stated that on 5/5/82 9 he returned hone at 3.30 p.m. end that the 2nd accuse I only wont out at 6 p.m. - and this time to 40 a nearby bar Zuguulole Br - He further stated that the 2nd accused returned home at 9.30 p.m. The 2nd. accused contradicts this testimony stating in effect that he had been out of his home after 3.30 p.m. on 'this day tw±oe - the first time i:hon he went to the DDD' S hone end, the sceond ti:eo when he left his house for ±e nearby bar returnin, a' 10 p,in. I em here concernec with the ifferene in the

testimoni of D.L2 and D07.5 regarding the number of the goings out by the 2nd accused and not with tI: e destinations to which the 2nd accused hd been. I do. not find Gabriel.. • Justin (D..5) was in a position of being'told by the • 2nd accuse d. such d.etalls He posed. iia. court as an observant ile Gabriel Justin (D.. 5) 10 contradics 1±3 2na accused by stating that he had sen the 2nd. ac.sed I cave their hone on 6/5/82 s'ating that he was 'oing to the house o the 1st accused, the 2nd accusLd ac I have several tines above àtted had maintained th-A he had not been ou after his retui from town on 6/5/82. Gabriel Justin (D.71.5) no -bwithstanding the 2nd accused. protestatis to the contrary is a dependant of the 2nd accused. Ho, himso.if admitted as muc1. He has been dcscribed.'by the iearnedState Attorney,. . 20 Mr. Lmo as P. useless witneee. I agree. His over- zeoloHsness to state an 1ything to help his benefactor was overflowing and apparent to all to see. I.reject his evidence on the goings and cominga of the 2nd accused on the days to which he had testified - 5/5/82 to 7/5/82, Raymond Tairo (D.7.7) is an Immigration Officer who testified to serving tho 2nd accused on 6/5/82 at between 9 and .10 am. Icn the 2nd. accused made his first call at the Immigration OfficeE' Raymond Tairo 30 stated that he had asked the 2nd accused to fill in clause 12 of thcpasaport application

foms. The 2nd accused left hs of±ic, to o and do what he had been told to do. The 2nd accused did not testify to such an easy and sraiht forward story, The 2nd accused stated that he sent to the Immigration offices his applioatior. ferns end ieft it under the careof D.W.7 with a request that he, Raymond Tairc (D.7.7) hand over the forns to a revenue collecting official there to work on then. The contradiction in the testimonies of 40 D.T2 - the seaOnr rrused and D. 17.7 - Raymond Tairo on such a basic issue covering the very purpose of the first visit is unsettling. It is more unsettlin g when one again considers a similar contradiction in the p 150- evidence of the 2nd accused and that of Julius Manysga (D..8) to whom the 2ndaccusod iad stated he had gone. straight fter leving the .155 accused at Kiloleni on 6/5/82. Here again there is a contradiction between the two concerning the purpose of tho visit of the 2nd accused to Julius Man'anga (D..8).. I have above stated what the 2nd accused stated had taken him to the offices of Julius Manyenga. Julius Manyanga (D.7.8) ies a different reason i.e. that the 2nd accused h-'d been to his office in search of a loan to enable him nake a / 10 paymcnt f:r a :iotor cycle and, that he (D.71 .8) had agreCd to give the loan te the 2nd accused et their meeting on 5/5/82. Yetin the detailed testimony of the 2nd accused there is nowhere

mentioned that he (2nd accused) had been to Julius Mar.yanga (D.'.8) on 5/5/82 seeking a loan. I do not consider this an oversight considering the fAct that the 2nd accused had twice been to the Thito Fathers Mission for the purpose of making a payment on u motor bycle.. The payment must have been important.. Again considering the fact that 20 Julius Msnyaga (D.j.8) had requested to be given some ten minutes to look for funds to give to the 2nd accused and considering, the fact that the 2nd accused had indeed given that tine, it is anlikely that he (2nd accused) would have missed to .aienfion this fect Julius Manyanga (D..8) puts the visit to the M/s Patels Advocate to swear an affidavit as a thing thet thi cone as an Inc ide:ital when the two w involved in noth.er more pressing affair. They \vent to M/S Fatel Advocates after they had ,:e. Lir.. Patci, ei h/s. Patel Advocates pass by 30 going to his office. But what is also intriguing is that by this time, the 2nd accused had not been to the Immigration offices whore accerdin.g to the evidence of Raymond Tairo (D..7) he wes told, by him how to fill clause tele of the Pass port Application Porms. Besides the aff:.devit sworn before Mr. Patel in the possession of the Immigration cf -ficials was dated 22/4/82. If the 2nd accused had another one on 6/5/82 he would most likely have handed it to the Immigration officer on his second

visit to tie offices when he also 40 took to them the attested photographs. I find Julius Manyanga (D,.8) a. her. No wonder he was, in the witness bi jumpy and incoherent, Edward . N. Asahile (D,.6), t},e Manager of the National Housing Corporation, Tabora, testif'iQd that -- I I — the lift given to him by the 2nd eccused to the RTC 'Godown was not on 6/5/82 ao the 2nd accused had - earlier en testified to but on 5/5/82 This withess was fiii on this date even when cross-exinad by Mr. Lyimo. He was cool end deliberate 'md I see no possibility of his mixing up the dates. In nssosein the evidence of the two accused I bear in ,iinc thet they ar not rocuired to prove their alibis. I f.rthor her in mind t1hnt lies by one or both ef then does not emouni to en admission of guilt 10 by that accused or Lath of thor. The rosccution case stands or falls On its own merit -. the case must be proved boy ond rssonable doubt. Both eccused have admitted to guessing most of the tines they gave in thei account ci their movements I state this as a - fact and do net wish to be underotood that I an looking for them to prove their alibi. The accused hove testified and this court is duty bound to evaluate this testimony together with the rest ci the evidence: Okale v. eublic (1965) E.C. 555 quoting with epproval 20 Ndege Maragwa v. Republic EACA Criminal Appeal No. 156 of 1964 (1)nreported)0 Bothi

accused have admitted to the Oxistenco of contradictions between their testimo- nies and their holice statements (e rJ:.ibit B. I - for the 1st accused end P.5 for the 2nd :accased). The accused have stated teat these statemeche mthich they had 3igfled stating that what was contained therein was true, were signed blindly without the some h:' ving been read back to then. F:diihit D. I me icrodome . by the defence with the purpose of establishing consistency between it and 30 the let. accused tostereony in coert. I.ddeod the same reason was troo ire the case of ethihit P.

5. I do not believe thai this coursr would have been edoptodif the two accused, ccepotont1y represented 'by a senior member of the Bar would have e•doii.'ted such a course if they had not read their statements or the contents of their steteneni read back to thorn before they had signed then. Taking into consideration the contradictions found when, the testireenies o' the accused are cdmpared with their police statements, contradiQtions existing within the 40 testimonies of esch accused, the contradictions found in the two testimonies and the controtictiore between the accused evidence and of heir witnesses, I find the evidence of the two accused. unreliable. V r Ijiku thç. lady and gentleman assessrs 9 I find P. !11 1 P.,2, P..3 and FT4 truthful witnesses. I have found the conduct of the idetificetion parades withi the est procedures. I, like the lady and gentleman assessors find established thet the two accused stoic the motor c7cle from the parking place of Lutz Kiante. This motor cycle Registration No. TZ 5931 5 (xhP,6) has been eroved by production of its roistration card fexhibit F13) to be thet of Mrs. Mchthild Ie.nsin - 9 d rbsd b7 serious witnesses 10 in cout as the wife of Lutz Klante. The lady and gentim an as .•;eesors st te4 that th two accused have not be n ehcwn by eye witnesses ti t they had. killed Lutz K ante end Alnoor Sir tar. In my summing up address to the

, I pointed out that the evidence against the two accused was circumstaitial. Both assessors have accepted the cv defoe of P..l, P. 17.2 P .3 and F..4. Maulid Shaben stated that the people who had fiIed at them w re the ones in possession of the motor cycle he and Lu z Klante had been tracing and thet those two 20 people had one gun end that Lutz Kianto did indeed disembrk from the motor vehi1 s on ehich they (he and Lutz K ante) had been iven a liii charging the two thief 'thif. This attack by the two people in posses ion of exhibit 13 led to the deaths of Lutz Klante and Ainoor Sense'. Francis diphoflee (TP..2) testif' ed thet the let sad 2nd accused were the ones in posses ion of the motor cycle found at the scone of crime the rioter cycle later proved to be the one taken from t e pahiin:, l.;e s hitz hi m be at Igonbe and 30 proved to be belendin to Mrs. Mecheild Lensing. Francis Alphonse (r..2) farther seated that he saw the two accused run away from the scene of crime immediately following the shooting. Further there is the evidence of Fra cis dlphonso that he had seen the 2nd accused with a gun There is bhe esidence of Dr. Amos Kerununa (P..20) thee; tie two deceased in this case had suffered gun shot wounds 9 which wounds led to severe loss of blood c using their dea;hs. Added to this the court has the evi3ence of Lucia Ngslawa (P.'.3) that she had 40 seen two people

one of whom the 2nd accused push a motor c dc earlier on in the morning of 6/5/82. All this ev'dence tken together pojnts to no other concluson then that it was the occiesed who had killed the two deceased. There now remains the euestion whot.h:3r the killing was with malice forethough.t0 The two ccused had stolen exhibit 13 - the troperty of the wife of Lutz Klente. Lutz Klante had been tIying to recover this motor cycle when he wee gunned down. P.here is no question that thD killing is coversd by s.200(c) of the Penal Code. The killing of AJ.noer Sumar who was helping Tüutz Klnnte to recover his wifO's stolen motor cycle is ecually zcvered by, s.200(c) of the Penal Code.. See elso Kcruga Ole Leloji vR (l93) 2 ACI. 75 (C.i). 10 There is no doubt thet the ewe accused had sot out to steel a motor cycloand. th...t this mission was a c c ompl i sh e d. Further that they h'd made a 00d break - dragging it towards Tabora. 1 11-ough the 2nd accused was seen by Francis Alphonse (P.17.2) carrying a gun, there seems to have been no intention of usin.g it at the time. There is no evidence of who had fired the gun at Lutz Klanto and later Alnoor Sumar and Ifreulid Shabani (r.4). But the events as detailed by Maulid 20 Shabani etat1ish that in teo course of the shooting both accused had acquired the necessary malice aforethought to establish a case of murder. hey had common intention to

murder. The evidence of Maulid Shabani which I have, accepted ii dhat the two accused first fired at Lutz Kiante atthe when Klante went to then. shouting uthief, 'thief". Then thus fired at, Lutz Klsrite returned to the motor vehicle in order to leave the place. Alnoor Sunar drove off but 30 the two accused would not let them get away. They fired at the motor vohiclo cauolmg it to stop. The two people then went to them and fired at Lutz Klante and Alnoor Sumr. No one had done anything to disassociate himself frm this deliberate and cold blooded act. Both were in it together. The two decer .sed were fired at vulneradle parts of their bodies: H v. Tabulayenko s/o Kioya and Others (943) 10 EACA 51 end Thnjiro a/c Wameno alias Yanjiro d/o Maric en. . imatha d/o 7akumhi v. Reg. (195)22 EdC 52L On the comprehe— 40 nsive view of the case, the evidence on record has satisfied both prrequisites m::ntioried above and points irresistably to only ceo concluoioih the guilt of each accused of the murder of Lutz gi5fl and Alnoor Sumar. I accordingly convict eich of the accused of the murder of Lutz Klanto and Alnoor Sumar. >, YtHYA 2 BhMJ.

JUDGE 17/9/2 (1 17/9/82 .. Cor- m: RUBj'ItT, J. • Mr. Cb.ilr,,S0L. for tho RcpublLc. Mr. Kwikima, Advocate, for the 1:woaccused. The two accused present0 The two assessors present. • Judgement delivered. -0.__..•. .- -•- S Yah ya Rifbama, J. 17/9/82 Mr. Chaila 10. .1 bve nothing to say. Mr. Kwikima The penalty is mndatory. I have nothing to say in miJition. Yah ya Rbria, J. 1st accused I ai not involved in fto cane. I shall appeal. 2nd accused. I shall nlso appeol0 I did not kill nybod.y. • Yah yabame., J0 17/9/82 Sentence, You, MLRII JThIY KAT..RA and CriRITCPHI JiJ0, have been convic -bod ot the murders of Lutz Klantocd Alnoor Sumar. The cnly smtonce r nurdor is death by hanging. Naturally this senenco c.n only be passed once. Accordingly I sentenco you, Tartin Jimy iotara and Christopher Urio, for taurdering Latz Kiante to suffer death by haatgin. Yah ya Ibm, J. 1 7/9/82 Right of Appeal explained Yab .ya 1bsina, J. 17/9/82 Assessors thanked and 'Iisc.haged. • 'S yah-ya uhama, J. • l7/9,'82