Nyambaza Nyamazege Tanzlii

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA CRIMINAL SESSION CASE NO 4357 OF 2024 THE REPUBLIC VERSUS NYAMBAZA NYAMAZEGE@ TUMBO JUDGEMENT OF THE COURT 28/06/2024 & 01/08/2024 Kafanabo, J.: In the present case, Nyambaza Nyamazege @Tumbo (hereinafter referred to as the ‘accused’), stands charged with one count of the offence of murder of Mnanka Misanga, contrary to sections 196 and 197 of the Penal Code, Cap. 16 R. E. 2022 (hereinafter the ‘Penal Code’). The information for the offence of murder contrary to sections 196 and 197 of the Penal Code, was duly read over to the accused in the Kiswahili language which he understood. The accused pleaded not guilty to the information for murder and thus necessitated a full trial. At the hearing the Republic was represented by Messrs Adolf Kissima and Jonas Kivuyo, learned State Attorneys. The accused was represented by Mr. Baraka Makowe, a learned Advocate. A brief background of the matter is that the accused is indicted of murdering one Mnanka Misanga, (hereinafter the ‘deceased’). It is alleged that on 03/06/2023 the accused attacked the deceased and slashed him on 1 the rear upper part of the neck and other parts of the body, atrociously wounding him, which caused massive bleeding, and shortly after the attack Mnanka Misanga died. Determined to prove that the accused is responsible for the commission of the offence of murder against the deceased, the Republic marshalled six (6) witnesses and two exhibits. The six witnesses who testified before the court were Prisca Mnanka, the wife of the deceased who testified as PW1, Waryoba Kiho Nyisao, a security guard of the Mirwa dispensary, who testified as PW2. The third witness was Mwenge Manzi, a family friend, who testified as PW3, and Julius Nyabugwahi Nyambaza, a paternal uncle of the accused, who testified as PW4. Samuel Muna, a medical doctor, was another witness who testified as PW5, and the last Republic’s witness was H. 492 D/CPL Basilius, who testified as PW6. The Republic also tendered two exhibits namely a postmortem examination report which was admitted as exhibit ‘P1’; and a sketch map of the crime scene admitted as exhibit ‘P2’. The Republic’s case was unwrapped by the testimony of Prisca Mnanka, the wife of the deceased, who testified as PW1. She testified that she lives in Mirwa Village in the Butiama District, in the Mara Region. She was also living at the same place and house with Mnanka Misanga, the deceased, who died on 03/06/2023. PW1 narrated that the day of the incident was a Saturday, she left her home for Magunga, a nearby village, and upon arrival at Magunga, she placed her electric rechargeable torch on the charge from 10.00 a.m. to 3.00 2 p.m. She left the torch on the charge under the care of another person, but she paid for it to be charged. She usually charged her torch there because she did not have grid electricity at her home, but solar-powered electricity. She removed the torch from the charging pot herself at 03.00 p.m. It was further testified that when she left her home for Magunga earlier that day, the deceased remained at home and, later he went to graze the cattle. When she returned home, she found the deceased already at home, back from grazing the cattle, it was at 04.00 p.m. Then that day, at 05.00 p.m., the deceased left their home for his usual evening strides. It was further testified that, after the sunset, when the night and dark descended, PW1 started using her electric rechargeable torch which she charged earlier in the day at Magunga village. Then, at around 8:45 p.m., it was dinner time, she was having dinner with the kids. Then she heard a scream from outside calling for help, it was the voice of her husband/the deceased she heard from outside. Then she went outside, taking with her a mobile phone and her electric torch which had a strong light because it had been electrically recharged earlier that day. She shone the torch, directing it towards where the scream and call for help was coming from. The targeted area was well illuminated, PW1 saw the deceased, Mnanka Misanga, crying for help whilst lying down, and another person called Nyambaza Nyamazege @Tumbo, was on his feet holding a machete. He was wearing a red trouser and white shirt. PW1 further testified that she knew it was Nyambaza Nyamazege @Tumbo, the accused, because of the strong illumination of the torch she was using. It was also easy for PW1 to identify the accused because he was 3 a resident of Mirwa Village and they (PW1 and the accused) attended and studied at the same school, i.e. Mirwa Primary School, and thus she had known him for a long time. It was further testified that when the accused realized that he had been recognized by PW1, he went towards her five steps, whilst PW1 shone the torch towards the accused. The accused was threatening to slash her with a machete, fearing for her life, she stepped back with her torch illuminating towards the accused. She then turned and screamed for help, and went around one of the houses to avoid being attacked by the accused. Given the state of affairs, the accused took to his hills. PW1 testified further that the distance between herself to the accused and the deceased was approximately ten or eight walking steps. Further, the incident she witnessed between the deceased and the accused, and which she became part of, took almost five minutes. It was further testified that after the accused had disappeared from the crime scene, the deceased raised and ran towards the Mirwa dispensary to get treatment because he was bleeding profusely, PW1 followed the deceased to the dispensary. When the deceased arrived at the dispensary he found a security guard whose name was Waryoba Kiho, who asked the deceased what happened to him, and the deceased replied that the accused had slashed him. After a short time before being attended by the doctor, Mnanka Misanga died at the dispensary. The further testimony of PW1 was that she realized that the deceased was injured when he started running towards the dispensary because his neck was bent and he was bleeding profusely. She did not see the accused 4 attacking the deceased, but the accused was holding a machete standing up, and the deceased was yelling for help whilst lying down. It was further narrated by PW1 that when they were at the dispensary she went close to the deceased and she saw that he was critically injured on the neck and face. Moreover, there were a lot of blood stains from their home, where she saw the deceased and the accused first, all the way to the Mirwa dispensary. She further testified that her home has three houses and a kitchen that were built close to each other. It was also clear that there was a maize/corn farm surrounding their home, yet to be harvested. There was a pathway to her house through the maize farm. The Accused and the deceased were in the area with the maize near the house located in the northern part of their home. On 04/06/2023 at 10.00 a.m., the police officers went to PW1’s home where she guided them to the area where the incident befell. Thereafter, the police officers and PW1 went to the dispensary, and the sketch map of the crime scene was drawn. PW1 also recognized the accused at the dock as Nyambaza Nyamazege @Tumbo, whom she saw on the night of 03/06/2023, at her home, as a person who was holding a machete whilst the deceased was lying down. PW2 was Waryoba Kiho Nyisao, a security guard at Mirwa Dispensary from the year 2012. He testified that on 03/06/2023 he was at work, at the dispensary, and around 09.00 p.m. in the night, Mnanka Misanga arrived at the dispensary whilst crying and complaining that the accused had slashed him. Then PW2 asked the deceased what happened to him, the deceased replied that the accused had slashed him and that the deceased was 5 conscious when he mentioned the accused as the person who had assailed and slashed him, then shortly the deceased fell on his face. PW2 then rushed to fetch a medical doctor who was not at the hospital at the time when the deceased arrived. However, when PW2 arrived with the doctor, Mnanka Misanga was already dead. The further testimony of PW2 was that the deceased was in very bad shape when he arrived at the dispensary, his neck was badly cut between his back head and the neck and was bleeding profusely. Between PW2 and the deceased, there was a gap of three walking steps. PW2 could not tell the deceased’s level of consciousness at the time because he was not a doctor but heard the statement of the deceased on the cause of his death. Further, PW2 testified that he could not tell whether the statement made by the deceased was true or not, because the one who said it was Mnanka Misanga, the deceased. The deceased mentioned the accused’s name with some difficulty. PW3 was Mwenge Manzi, a family friend, living at Mirwa Village. He testified that on 04/06/2023, whilst at home, he was called by the relatives of the deceased and was asked to go to Butiama Hospital. He joined them and when they got there, at the mortuary, he recognized the body of Mnanka Misanga, which had injuries. He saw the injuries on the body when in the mortuary and he was there for taking the body of the deceased for burial purposes. The injuries were on the neck and the arm. He arrived at the deceased’s residence on 4th June 2023, a day after the attack. He explained that the deceased was attacked on the pathway leading to the dispensary 6 and the river Mirwa and not at his home. There was a maize farm and a fence surrounding the deceased’s home. PW4 was Julius Nyabugwahi Nyambaza, a resident of Sirorisimba Village. He testified that the accused was his nephew, the son of his elder brother. On 19/10/2023 he was at his home and was called by his son Omari Mahinya who informed him that on 20/10/2023 he should go to Musoma Bweri area, at a place known as Musoma Bus, he would find the accused and that he should surrender him to the Regional Crimes Officer (RCO). When he arrived he found the accused and took him to the RCO because the accused was a suspect in a murder case. After he handed him over to the assistant of RCO, he left. PW5 was Mr. Samwel Muna, a medical doctor at Butiama Hospital. He testified that on 04/06/2023, whilst at work, he was requested by a police officer to examine the body of Mnanka Misanga which was at the Mortuary. He conducted a medical examination of the body, prepared a report, and handed it over to the police officer. The body was of an adult male African; the body was soaked in blood with massive injuries. The injuries were on the neck (26 centimetres long and 9 centimetres deep), on the face there was an injury from the left upper lip upwards, 12 centimeters long and 2 centimetres deep, on the hand the left-hand thumb was amputated, and there were injuries on the chest. The postmortem report was admitted as exhibit ‘P1’. PW6 was H.492 D/CPL Basilius, a police officer from Butiama Police Station, working in the criminal investigation department. He testified 7 that on 03/06/2023 at around 10:00 p.m., he was instructed by the OCCID, ASP Neligwa, to organize police officers and go to Mirwa Village because a homicide was reported. Upon arrival at Mirwa Village, they found a body at Mirwa dispensary. OCCID instructed him to record the statement of the wife of the deceased by the name of Prisca Mnanka and other witnesses. The statement of Prisca Mnanka was taken at 2.45 a.m. at Mirwa dispensary. Then the police officers started looking for the suspect by the name of Nyambaza Nyamazege@ Tumbo. He testified further that the efforts of looking for the accused continued. Moreover, on 04/06/2023 he was assigned to draw a sketch map of the crime scene led by Prisca Mnanka, the deceased’s wife. On 07/06/2023 he was given a file with reference Number BUHEMBA/IR/346/2023 for purposes of continuing with the investigation. In the course of the investigation, he discovered that the suspect who was being mentioned by many witnesses was the accused, and thus they continued searching for a suspect on the loose. The accused was detained on 20/10/2023 after he surrendered at the Musoma Central Police. Thereafter, the accused was transferred from Musoma Central Police to Butiama Police Station where PW6 interviewed the accused. PW6 also tendered a sketch map of the crime scene which was admitted as exhibit P2. PW6 further testified that, after interviewing the accused and reviewing the statements of witnesses, he realized that the accused committed the offence he was charged with. The accused told him that after hearing the hue/scream for help, he left for Serengeti. Initially, the accused told him that he was at the Mirwa Centre with his friends whom he did not 8 mention, but did not question him on how long he was at the centre and who were his friends. He also testified that from the deceased’s home to the Mirwa centre is about one kilometre. After the closure of the Republic’s case, this court had to determine whether the Republic had established the prima facie case warranting the accused to enter his defence. In the light of the evidence on record especially the testimonies of PW1(Wife of the Deceased), PW2 (security guard of the Mirwa dispensary), PW5 (Medical Doctor), and PW6 (the police officer who investigated the matter), also exhibits P1 and P2, this court ruled that the evidence on record implicated the accused with the commission of the offence in respect of which he was charged and thus a prima-facie case against the accused was established. The accused, who was ably represented by Mr. Makowe, learned advocate, was thus addressed in terms of sections 293 and 294 of the Criminal Procedure Act, Cap. 20 R.E. 2022 (hereinafter the ‘CPA’). The accused opted to call one witness and defended himself under oath with no exhibit to tender. It was also stated that the defence of alibi shall continue based on notice issued on 22/05/2024 during the preliminary hearing. At the germinal of the defence case, the accused testified as DW1. He testified that his name is Nyambaza Nyamazege Nyambaza, and lived at Mirwa Village in Kisabuke. He knew the deceased and was living with him in the same village in Nyamakana suburb. In the afternoon of 03/06/2023 at 02.00 p.m., he and others, whom he did not mention, were uploading cotton 9 bags of AMCOS company in the Fuso truck. They finished the task at 03.00 p.m., thereafter he went to the local market and bought side dish/vegetables and went home, it was around 04.00 p.m. Then he ate food and revitalized, then at 05.00 p.m., he went to the Mirwa center where he arrived at around 5.00 p.m. to 6.00 p.m., and played pool table with friends. DW1 also testified that the distance from his home to the center, was thirty or forty walking steps, and a person could walk for thirty 30 minutes from his home to Mirwa Center. The accused testified that he played pool table with Wambura Msyumi, Toto Pili, and Bwahi Katani. They played pool table from 06.00 p.m. to 10.00 p.m. and went to watch a football match in a hall at Juma Odero’s place. It was on Saturday, and the match they were watching was Simba Day. They stayed at the hall up to 12.00, midnight when the match was over, and when at the said hall they heard that he was involved in the murder of Mnanka Misanga. He heard that the vigilantes (wanayowe) were looking for him, he decided to run and went into hiding to save his life. That night he went to his father’s home and explained to him what happened then the accused left for Sirorisimba. He slept at the center of Sirorisimba. Then on 04/06/2023, he went to Mugumu center, in the Serengeti District. He testified that he did not surrender to the village leadership because he was afraid that he could be hurt if he would go there within a short period of the incident. Then on 20th October 2023, he went to report personally at the Musoma Police Station, he was coming from Mugumu, in the Serengeti District. Upon arrival at the police post, he explained himself to the police officer and was put under custody. He slept in custody, and the following 10 day he was taken to the Butiama Police Station. Upon arrival, he stayed in custody for some days, then his statement was taken. He arrived there on 21/10/2023 and his statement was taken after some days had passed, but had forgotten the date on which his statement was taken, and did not remember the name of a police officer who took his statement, but it was not PW6 (D/CPL Basilius). In his statement, he told the police that he was not involved in the Murder of Mnanka Misanga, and when the incident occurred he was at the Mirwa center and thus the testimonies of PW1 and PW2 were not true. In cross-examination, DW1 stated that he attended Mirwa Primary School. He knew PW1 as the wife of Mnanka Misanga, they attended the same school and they lived with the deceased in the same village. There was no quarrel between him and the deceased. He heard PW1 and PW2 mentioning him as involved in the murder of Mnanka, but he did not know why the deceased mentioned him as the one who committed the offence and he ran away because he wanted to save his life as he was afraid of being killed or hurt by the vigilantes. In supporting the accused’s defence that he was not at the crime scene when the deceased was attacked, DW2, Wambura Steven Msyumi, was called to the dock. He testified to have known Mnanka Misanga as a fellow villager and a brother-in-law. He heard about the death of Mnanka Misanga on 03/06/2023 when he was in the hall watching football, the hall was big enough to accommodate 30 football fans at a time. They were watching a 11 football match with the accused, John Wambura, Mahinya Tetewanga, Muhunda Mazengo, Toto Magori and many others. DW2 explained further that they entered the hall at 09.00 p.m. to watch a football match between USM Algiers vs Young Africans. Earlier that day they were with the accused playing pool table from 06.00 p.m. to 09.00. p.m., at Mwita George’s place which is two walking steps away from the hall in which they watched a football match, and at around the 12th minute of the match (i.e. 09:12), he received a call from his friend Wambura Kiho who informed him that his brother in law, Mnanka Misanga, has been attacked and slashed with a machete and was dead. At the time he received the call he was with the accused, John Wambura, Mahinya Tetewanga, Muhunda Mazengo, Toto Magori, and others, and he was informed that the attackers were unknown. When processing the said information, they received another information whilst at the hall that the accused was a suspect of murder, but they were with him at the hall. The accused regretted receiving the news, he wanted to go and witness what happened, but he was advised not to because he could be hurt by the vigilantes. Then the accused went into the hideout fearing for his life. In cross-examination, DW2 testified that although he had known the accused since he was quite young, the accused did not inform him of all his issues, he also did not know all his conduct. DW2 restated that received the news of the death of Misanga Mnanka at around 09.12 whilst at the hall. In the hall, the accused was seated at the second seat from the front. However, there were no lights (bulbs) in the hall, but there was a nearby bulb outside which also enlightened the hall and thus it was also possible to recognize a 12 person nearby as it was not dark. There was also light on the screen of the television they were watching. It was also clear that DW2 was not at the entrance/exit door of the hall and thus could not know who came in or who went out. The football match they were watching started at 09.00 p.m. and ended at 10:45 p.m. The match was for ninety (90) minutes and he did not report the matter to the police, because the police went to the scene of the crime and discharged their duties. After the closure of the defence case, the learned counsels for both parties prayed to present final submissions in respect of their cases. The parties were ordered to file their submissions simultaneously on 8th July 2024, however, only the Republic managed to file their submissions on time. The accused’s counsel was allowed to file his submissions after he had applied for an extension of time to file the same. Briefly, the submissions by the Republic were to the effect that the case against the accused has been established beyond reasonable doubt given the testimony of six witnesses and the exhibits tendered. It was submitted that the accused was properly identified because of the strong light of the torch used by PW1, citing the case of Waziri Amani v. R (1980) TLR 250 and the case of Abel Orua @ Matiku & Others vs Republic (Criminal Appeal No. 441 of 2020) [2024] TZCA 78. Also, the case of Masanja Lupilya vs Republic (Criminal Appeal 444 of 2017) [2021] TZCA 495 (17 September 2021) was cited as regards identification by using torch light and that the accused and PW1 knew each other well in advance the fact which was not denied by the accused. 13 A dying declaration was another aspect highlighted in the submissions as admissible where it is corroborated with other evidence citing the cases of Florence Mwarabu v. Republic, Criminal Appeal No. 129/2003, also Hamis Nzunda v R Criminal Appeal No. 34 of 1995. It was also submitted that the accused’s defence of alibi did not meet the procedural requirements in terms of section 194(4)(5) of the CPA citing the case of Hamis Bakari Lamani v. R. Criminal Appeal No. 108/2012. The submissions for the defence were that the conditions for identification were not favourable and the evidence of PW1 should be treated with utmost caution and care, citing the cases of Abdallah Wendo v. Reginam 20 EACA 166 and the case of Waziri Amani v. R (1980) TLR 250. It was also submitted that the offence was committed at a different place other than where the accused was found by PW1. Also, the defence relied on the evidence of PW3 who testified that the offence took place outside the fence that surrounded the maize farm. It was submitted that it was too dangerous to find conviction on a single identification witness given the surroundings of the crime scene and that the description of the accused was too general referring the court to the case of Michael Lemberi Masolwa v. Republic, Criminal Appeal No. 285/2005. The issue of the dying declaration was also addressed by the defence counsel in that it cannot be relied upon by the court because the deceased was in a critical condition given the wounds he had sustained citing the decision of this court in Republic v. Bernard Masaho@ Mwita Makore, HC Criminal Sessions No. 32 of 2001. It was further submitted that the 14 deceased’s dying declaration needs corroboration but in the present case, it was not corroborated and thus be disregarded. It was also submitted that the deceased also used to drink alcohol and thus the same should not be ignored. A further submission by the defence was that the accused’s defence of alibi was unchallenged. In the light of the evidence above, and submissions by the parties, this court is called upon to determine whether the Republic has proved her case that the accused is responsible for the murder of Mnanka Misanga beyond reasonable doubt. In answering this major issue before the court, this court is guided by the provisions of section 196 of the Penal Code Cap. 16 R.E. 2022 which reads: ‘Any person who, with malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder’ In light of the above section, and in order to prove that a person is guilty of murder it must be proved that the death of a person has been caused by an unlawful act or omission with malice aforethought. It is also the salutary principle of law and practice that the prosecution in criminal trials has to establish and prove the allegations beyond reasonable doubt as required by law, which duty never shifts to the accused. Section 3(2)(a) of the Evidence Act, Cap. 6 R. E. 2019 is relevant; also see the case of Six Ilanga @ Msaka vs Republic (Criminal Appeal No. 484 of 2020) [2024] TZCA 95 (23 February 2024). It follows that to prove the aforementioned, the answers to the following questions would be pertinent; one, whether the said Mnanka 15 Misanga is dead, if that is answered in the affirmative, the next question would be how did he die, that is, was his death natural or unnatural, if the death is unnatural then who caused the death of Mnanka Misanga and whether the causation was a result of a lawful or unlawful act or omission. The last question would be whether causation was with malice aforethought. As regards, the issue of whether the said Mnanka Misanga is dead, in light of the evidence on record the same is not difficult to answer. According to the evidence of PW5, Samuel Muna, a medical doctor from the Butiama Hospital, testified that he examined the body of Mnanka Misanga which was identified to him by the relatives of the deceased. According to PW5, the death of Mnanka Misanga was caused by hemorrhagic shock and traumatic brain injury which was a result of massive loss of blood. The testimony of PW5 was also corroborated by the testimonies of PW1, the wife of the deceased, and PW2, a security guard of Mirwa Dispensary at which Mnanka Misanga ran for the 1st aid/treatment, but died thereat before receiving any treatment. The postmortem report which was admitted as exhibit P1, also proves that Mnanka Misanga is dead and the report indicates that the cause of death is hemorrhagic shock and traumatic brain injury. The details showing why there was massive loss of blood are crystal clear given the grievous wounds inflicted on his neck and head. Therefore, there is overwhelming evidence that Mnanka Misanga is dead and it has been proved as such by the prosecution. The next question is how did Mnanka Misanga die? PW5, as alluded to herein above, testified that the deceased’s death was caused by massive loss of blood due to mortal and fatal wounds suffered by the deceased. This 16 means that the deceased’s death was not due to natural causes, the deceased was slashed by an object with a sharp edge on the rear part of the neck. Exhibit P1 indicates the wound on the neck to be twenty-six (26) centimetre long and nine (09) centimetre deep to the bones, including the large blood vessels. The other wound was on the lower part of the face from the upper lip of the deceased, which was described to be twelve (12) centimetre in length and two (2) centimetre deep. The report also indicated that the deceased suffered injuries on the chest, i.e. Bilateral Chest Ecchymosis, and that his left-hand thumb was amputated. The testimonies of PW5, PW1, and PW2 make it absolutely clear that the deceased’s death was unnatural and that he died because of the serious and fatal wounds brutally inflicted on his neck, head, chest, and hand by a person who, in light of the evidence on record, intended to sever the head from the body of the deceased. The next and paramount question to answer, is who killed the deceased? Based on the evidence on record the testimonies of two witnesses for the prosecution, that is PW1 and PW2, and the testimonies of the two witnesses for the defence that is DW1 and DW2 are key in the determination of the above posed question. From the evidence reproduced above PW1 testified clearly that on 03/06/2023 at around 8:45 p.m., she was at home inside the house having dinner, when she heard a screaming voice which she recognized to be that of her husband Mnanka Misanga, the deceased. Then she took her electric rechargeable torch and a mobile phone and went outside the house aiming and shining a torch to where the scream was coming from. She said her 17 torch had a strong light that illuminated the area which enabled her to see clearly. She testified that she saw the deceased lying down screaming and the accused was on his feet holding a machete. Since she was shining a torch at the accused, and the accused realized that he had been identified by PW1, the accused made a move towards where PW1 was standing for five walking steps, following PW1 threatening to assault her with a machete. PW1 retreated by stepping back and pausing whilst shining the torch at the accused, then she turned and screamed for help, fearing for her life she went around one of the houses at their home avoiding the accused from attacking her. It was her testimony that the accused was wearing a white shirt and a red trouser. It was also the testimony of the PW1 that she easily recognized the accused because she knew him before as a fellow villager, and that they both attended the same primary school, that is Mirwa Primary school. This fact was also corroborated by the accused himself in his testimony. It was also clear that after the accused’s realization that he had been recognized by PW1, took to his hills. It was also the testimony of PW1 that when the deceased reached the dispensary, he was asked by the security guard what happened to him, and the deceased replied that the accused had slashed him. That is, she heard what the deceased told the security guard on the cause of his death. This court in determining the issue of the accused’s identification by PW1 is trodden upon cautiously bearing in mind the challenges of visual identification, and that, in our jurisdiction, it is settled that visual identification is one of the weakest forms of identification. In the case of 18 Waziri Amani vs Republic (Criminal Appeal 55 of 1979) [1980] TZCA 23 (6 May 1980): the Court of Appeal observed: "Evidence of visual identification is not only of the weakest kind, but it is also most unreliable and a court should not act on it unless all possibilities of mistaken identity are eliminated and it is satisfied that the evidence before it is absolutely watertight".’ Moreover, on the issue of identification in general, in the case Frank Joseph @ Sengerema vs Republic (Criminal Appeal No. 378 of 2015) [2016] TZCA 216 (25 April 2016) the Court of Appeal referred the case of Waziri Amani (supra) and observed that: “In that case the Court laid down some guidelines which are to be followed in order to establish whether or not identification evidence is watertight. The following factors must be established: (i) The time the witness had the accused under observation. (ii) The distance at which he observed him. (iii) The conditions in which such observation occurred, for instance, whether it was day or night time. Whether there was good or poor lighting at the scene. (iv) Whether the witness knew or had seen the accused before or not.” Moreover, in the present case identification of the accused by recognition by PW1, the wife of the deceased is key. In the case of Frank Joseph @ Sengerema vs Republic (supra) the Court of Appeal had this to say on evidence of recognition: 19 “Evidence of recognition has been taken to be more reliable than that of identification. Notwithstanding that position, we are mindful of the requirement that care must be taken before any court acts on that kind of evidence. In Shamir s/o John v The Republic, Criminal Appeal No. 166 of 2004 (unreported) the Court observed as follows: - "...recognition may be more reliable than identification of a stranger, but even when the witness is purporting to recognize someone whom he knows, the Court should always be aware that mistakes in recognition of those relatives and friends are sometimes made." Also the case of Abel Orua @ Matiku & Others vs Republic (Criminal Appeal No. 441 of 2020) [2024] TZCA 78 the Court of Appeal held that identification of the accused by the headlight of the motorcycle was sufficient enough to ground conviction. Likewise, in the case of Masanja Lupilya vs Republic (Criminal Appeal 444 of 2017) [2021] TZCA 495 (17 September 2021) the court of Appeal revisiting its decision in the case of Michael Godwin and Another vs Republic, Criminal Appeal No. 66 of 2002, held that; "It is common knowledge that it is easier for the one holding or flushing the torch to identify the person against whom the torch is flushed. In this case, it seems to us that with the torch light flushed at them, (PW1 and PW2), they were more likely dazzled by the light. They could therefore not identify the bandits properly." 20 In the present case, PW1 was the one holding the torch which she described as having strong light as it was electrically recharged on that day. Her identification of the accused was cemented by the fact that the accused took five steps towards her when PW1 was aiming the illuminating torch at the accused and that she easily recognized him because she had prior knowledge of him as described herein above. The testimony of PW1 was also corroborated by the testimony of PW2 who testified that the deceased himself reached Mirwa Dispensary where PW2 works as a security guard whilst the deceased was conscious and complaining that the accused was killing him. Further, PW2 probed the deceased as to what happened to him, the deceased mentioned the accused as a person who assailed him, and after a short while the deceased fell on his face. Thereafter, PW2 rushed to fetch a doctor to get the deceased treated, but his efforts were in vain as it turned out that the deceased was already dead when he came back with the doctor. PW2 also said that he could not opine on the deceased’s level of consciousness because he was not an expert/doctor. PW2 was firm on what he heard from the deceased, that it was the accused who attacked and slashed the deceased, and PW1 unhesitatingly identified the accused in Court. It is this court’s position that what the deceased told PW2, which was also heard by PW2, amounts to the oral dying declaration which is the best evidence of the deceased’s cause of death and is admissible under section 34(a) of the Evidence Act, Cap. 06 R.E. 2019. Moreover, in arriving at the above position, this court finds comfort in the case of Six Ilanga @ Msaka vs Republic (Criminal Appeal No. 484 of 21 2020) [2024] TZCA 95 (23 February 2024) where the Court of Appeal when discussing the meaning of dying declaration held that: “We are also aware that, in law, a dying declaration can either be written or oral. What the deceased explained to PW3 and PW4 amounted into an oral dying declaration. Maybe we need to define the meaning of dying declaration hereto before we can proceed with our consideration. To the best, dying declaration simply means a statement made by a deceased person as to the cause of his death. See Onael Dauson Macha vs. R, Criminal Appeal No. 214 of 2007 (unreported); Hamis Said Mchana vs. R [1984] T.L.R. 319; Ally Bakari and Pili Bakari vs. R [1992] T.L.R. 10; Elisante Simon @ Kilinganya vs. R, Criminal Appeal No. 154 of 2003 (unreported).” The dying declaration in the present case which was heard by PW1 and PW2, was corroborated by the testimony of PW5, who, as demonstrated herein above, explained in very fine detail the injuries inflicted on the body of the deceased, and the cause of his death as evidenced in exhibit P1, the postmortem report. PW1’s testimony, as alluded hereinabove, also corroborated the deceased’s dying declaration. In an attempt to exonerate himself from the claws of the law, the accused banked on a defence Alibi and thus attempted to dent the prosecution’s case. The accused who testified as DW1 testified that from 6.00 p.m. to 10:00 p.m. on 03/06/2023 he was playing pool table with friends which he mentioned and thereafter, from 10.00 p.m. to midnight they were watching a football match which he named as Simba Day in a hall 22 together with friends. This version of DW1’s story was partly supported by DW2, however, their story varied on the timings of the football match and events of the day. DW2 said that the match began at 09.00 p.m. whilst DW1 said that the match began at 10.00 p.m. The variation was also on the event of the day, DW1 said that he was watching Simba Day from 10.00 p.m. to midnight. However, DW2 said it was the match between USM Algiers v. Young Africans. The variation was also that, DW1 explained that they watched the match up to the end at midnight when they received news about the death of the deceased, whilst DW2 said that they received the news at 09:15 when the match they were watching had just started and was on 12th minute of the match. Nevertheless, the evidence as adduced by PW1 and PW2 clearly shows that the incident that led to the death of the deceased took place at 8:45, which was before the commencement of the football match, be it Simba Day or USM Algiers v. Young Africans, as none of them commenced before 9.00 p.m. The only part of the defence that is to be discussed is the time between 06.00 pm to 9.00 p.m. when the accused and his friends were allegedly playing pool table. It was not stated how the pool table involved all four persons at a time, or how the accused was engaged for three hours playing pool table. However, the whole of the accused’s defence of alibi is questionable and unreliable. This is due to the fact it differs greatly from the particulars of the notice of alibi given to the court during the preliminary hearing on 22/05/2024. The details of the defense of alibi given by the accused were that at the time of the commission of the offence, the accused was at home 23 with his wife, and not at Mirwa Centre playing pool table. But none of the said particulars featured in the defence substantiating his alibi. There is no iota of doubt that the particulars of alibi given orally to the court, and the evidence adduced in court that the accused was playing pool table with friends at the time when the deceased was attacked, are two poles apart. It is crystal clear that the prosecution’s case remains unshaken. It was also the evidence of PW1, PW6, and DW1, that the Mirwa Centre and the deceased’s home are not far, that is not more than one Kilometre. PW1 said it was a minutes walk and PW6 said it was not more than a Kilometre. Given the time the incident occurred, anything could happen between Mirwa centre, where the accused allegedly was, and the deceased’s residence. Moreover, in determining the validity of the accused’s defence of alibi, this court is steered by the guidance of the Court of Appeal in the case of Abel Orua @ Matiku & Others vs Republic (Criminal Appeal No. 441 of 2020) [2024] TZCA 78 where it was observed that: On this ground, we think we should begin by restating a cardinal principle that an accused person is not required to establish that his alibi is reasonably true. All what he is required to do is to create doubts as to the strength of the prosecution case against him. Where the prosecution case is accepted as nothing than the truth or where the case was on visual identification and the identification is found positive, the defence of alibi is diminished. See- Kenedy Owino Onyachi & 2 Others (supra) and Kubezya John v. Republic, Criminal Appeal No. 488 of 2015(unreported). 24 Besides, in Abel Orua @ Matiku & Others vs Republic (supra) it was also held that: ‘It is trite law that, it is only contradictions or inconsistencies which affect the central story which are to be considered to be material and adverse to the party in whose favour the evidence is given. Such contradictions or inconsistencies should not be those that are of an insignificant nature. See- Mukami w/o Wankyo v. Republic [1990] T.L.R. 46, Shamari Athuman @ Mwanja & Another v. Republic, Criminal Appeal No. 650 of 2021 and Dickson Elia Nsamba Shapwata & Another v. Republic, Criminal Appeal No. 92 of 2007 (both unreported).’ In light of the above authorities and according to the evidence on record, the accused’s defence of alibi has several dents which diminished any conception of doubt on the prosecution’s case. Therefore, this court, guided by the above enlightenment of the Court of Appeal, finds no reason to disbelieve the unshaken testimony of PW1 corroborated with that of PW2 as to who caused the death of the deceased. It is not in dispute that no one saw the accused striking the deceased with a machete, but the circumstances under which the accused was seen holding a machete on his feet, and which the deceased was crying for help lying down, show that the accused was responsible with the monstrous act against the deceased. Additionally, the dying declaration of the deceased before PW2 which was also heard by PW1, added more weight to the testimony of PW1. Moreover, the credibility of PW1 and PW2 was bolstered by the testimony of PW6 who took their statements on the night of the incident at Mirwa 25 dispensary when their memories were quite fresh. The statement they gave to PW6 on the night of the incident also mentioned the accused as an assailant of the deceased. This court also takes into account the principle that the ability of a witness to name a suspect at the earliest opportunity is an all-important assurance of his reliability, in the same way as unexplained delay or complete failure to do so should put a prudent court to inquiry. See the cases Marwa Wangiti Mwita & Another v. Republic [2002] T.L.R. 39 and Abel Orua @ Matiku & Others vs Republic (supra). Moreover, the accused himself testified that he had no quarrel with PW1 and PW2 and thus there is no evidence of bad blood between the said witnesses and the accused. This makes the testimonies of PW1 and PW2 much more credible and reliable. Their evidence is above suspicion and unimpeached, taking into account it is trite law that every witness is entitled to credence and must be believed, and his testimony accepted unless there are good and cogent reasons for not believing a witness. See the cases of Goodluck Kyando v. R., Criminal Appeal No. 118 of 2003 (unreported), and Mathias Bundala vs Republic (Criminal Appeal 62 of 2004) [2007] TZCA 16 (16 March 2007). This means that the testimonies of the said witnesses implicated the accused directly with the commission of the offence which suggests that the accused’s defence of alibi is mascara and of no basis. Therefore, the cases of Michael Lemberi Masolwa v. Republic (supra) and Republic v. Bernard Masaho@ Mwita Makore (supra) cited by the accused’s learned counsel are distinguishable from the present case. 26 The accused’s defence was also mounded on the testimony of PW3 in an attempt to discredit the testimony of PW1. However, the testimony of PW3 as regards where and when the deceased was assailed was pure hearsay. This is because PW3 visited the deceased’s home on 4th June 2023 after collecting the deceased’s body from the hospital, whilst the fateful day was 03/06/2023. Moreover, PW3 did not even disclose the source of his information. Since hearsay evidence is inadmissible, that part of PW3’s testimony is hereby discarded from the record. See the case of Daimu Daimu Rashid @ Double D vs Republic (Criminal Appeal No. 5 of 2018) [2019] TZCA 366 (4 November 2019) and section 62(1) of the Evidence Act, Cap. 6 R.E. 2019. At this stage, it is also important to clearly state that even though the accused’s/PW1’s home was surrounded by the maize farm, PW1 managed to see both the accused and the deceased very clearly as demonstrated herein above. Moreover, the dying declaration as heard by PW1 and PW2 also diminished any remote or fanciful possibilities in favour of the accused, which also would no benefit be allowed to benefit the accused. See the case of Chandrankat Joshubhai Patel v. Republic, Criminal Appeal No. 13 of 1998 (unreported). Therefore, in light of the foregoing, it is a finding of this court that the accused is the one who attacked and fatally wounded the deceased who, eventually, succumbed to the wounds that led to his death. Thus, this court concludes that the accused is the person who killed Mnanka Misanga. After finding that the accused is the one responsible for the murder of the deceased, it is now pertinent time to determine whether the said killing 27 of the deceased was actuated with malice aforethought. As regards the law on malice aforethought section 200 of the Penal Code Cap. 16. R.E. 2022 provides for circumstances under which malice aforethought may be inferred, the relevant section reads: “Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances- (a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person killed or not; (b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although that knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; (c) an intent to commit an offence punishable with a penalty which is graver than imprisonment for three years; (d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit an offence.” Moreover, the factors to be considered in determining malice aforethought were exemplified in the case of Charles Bode vs Republic (Criminal Appeal No 46 of 2016) [2019] TZCA 578 (6 March 2019) where the Court of Appeal of Tanzania observed that: 28 “The decision of the Court in the case of Enock Kipela vs Republic, Criminal Appeal no. 150 of 1994 (unreported), is very instructive when it comes to the question of ascertaining as to whether the killing committed by the appellant was done with malice aforethought or not. It was held thus: "…. usually an attacker will not declare his intention to cause death or grievous bodily harm. Whether or not he had the intention must be ascertained from various factors, including the following: (i) The type and size of the weapon which was used in the attack leading to the death of the deceased; (ii) The amount of force which was used by the attacker in assaulting the deceased; (iii) The part or parts of the body of the deceased where the blows of the attacker were directed at or inflicted; (iv) The number of blows which were made by the attacker, although one blow may be enough depending on the nature and circumstances of each particular case; (v) The kind of injuries inflicted on the deceased's body; (vi) The utterances made by the attacker if any, during, before or after the attack; (vii) The conduct of the attacker before or after the incident of attack." 29 Applying the above factors in the present case, from exhibit P1 (a postmortem report) and the testimony of PW5, a medical doctor, it is important to note the following summary of undisputed facts as regards the body of the deceased: ‘That the wound on the neck was twenty-six (26) centimetres long and nine (09) centimetres deep to the bones including the large blood vessels. The other wound was on the lower part of the face, the upper lip, of the deceased which was described in the report and PW5 to be twelve (12) centimetres in length and two (2) centimetres deep. The report also indicated that the deceased suffered injuries on the chest, Bilateral Chest Ecchymosis, and that his left-hand thumb was amputated. There were also disarticulated posterior neck bones and urethral rectus stained with seamen which were caused by severe pain’ From the above summary of facts as per the postmortem report and PW5’s testimony the following are untarnished: i. The accused targeted and successfully attacked very vulnerable parts of the body of the deceased, that is the neck and the head. ii. The monstrous wounds inflicted on the said vulnerable parts of the body indicate that the assailant attacked the deceased by using a lethal weapon with a very sharp edge. iii. The depth and length of the wounds demonstrated that the assailant used atrocious force when attacking the deceased. 30 iv. The number of brutal wounds on the body of the deceased, that is on the neck, head, chest, and arm show that the assailant landed several blows of his lethal weapon on the deceased's body. v. The nature of the deadly wounds inflicted on the deceased's body speak for themselves. vi. The conduct of the accused after the commission of the offence, that is he went into hiding from 03/06/2023 to 20/10/2023 when with the help of his paternal uncle, PW3, he surrendered to the police. In light of the above, it is safe and immaculate for this court to conclude that that the accused attacked and slashed the deceased intending to cause his death, or grievous bodily harm in terms of section 200 of the Penal Code (supra) and as exemplified in the case of Enock Kipela vs Republic (supra) and restated in the case of Charles Bode vs Republic (supra). It is therefore innocuous for this court to conclude that the accused herein killed Mnanka Misanga with malice aforethought. It follows that the accused, Nyambaza Nyamazege @Tumbo, is hereby found guilty of the murder of Mnanka Misanga contrary to sections 196 and 197 of the Penal Code, Cap. 16. R.E. 2022 and hereby convicted accordingly. It is so ordered. K. I Kafanabo Judge 01/08/2024 31 The judgment was delivered in open court in the presence of Ms. Agma Haule State Attorney, for the Republic, in the presence of Mr. Baraka Makowe, learned Advocate for the accused, and in the presence of Nyambaza Nyamazege @ Tumbo, the accused. K.^^a^nabo^ Judge 01/08/2024 ANTECEDENTS Ms. Agma Haule State Attorney: The Republic has no previous criminal record of the accused, but it is the prayer of the prosecution that deserving punishment be imposed on the accused according to section 197 of the Penal Code, Cap. 16. R.E. 2022. MITIGATION Mr. Baraka Makowe, Advocate: Since the accused has been found guilty of murder, the punishment for the offence is only one, may the court be pleased to punish the accused according to the law we do not have any mitigating factors. kT I ^^^nabo*° Judge 01/08/2024 SENTENCE Today the 1st day of August 2024 the accused/convict, Nyambaza Nyamazege @Tumbo, has been found guilty of the murder of Mnanka Misanga. It follows that sentencing and imposing an appropriate sentence when the accused 32 is found guilty of murder is provided for under section 197 of the Penal Code Cap. 16 R.E. 2022 which provides that: person convicted of murder shall be sentenced to death." In light of the above provision, and considering the mitigation of the accused, the hands of this court are tied. The above section providing for punishment of murder was legislated in mandatory terms, and this court has no option but to adhere to and implement the letter of the law. Moreover, the said section 197 of the Penal Code is read together with section 322 of the Criminal Procedure Act, Cap. 20 R.E. 2022 which provides that: "(1) Where any person is sentenced to death, he shall suffer death by hanging. (2) Where any person is sentenced to death the sentence shall direct that he suffers death by hanging." Therefore, in light of the foregoing, Nyambaza Nyamazege @Tumbo, being a convict of the murder of Mnanka Misanga, is hereby sentenced to death and shall suffer death by hanging. It is so ordered. Right of Appeal explained. K. I^^nabo Judge 01/08/2024 33 This sentencing order was delivered in the open court in the presence of Ms. Agma Haule, State Attorney for the Republic, in the presence of Mr. Baraka Makowe Advocate for the accused, and in the presence of Nyambaza 34