Republic vs Joseph Adolph Kisubi

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUMBAWANGA DISTRICT REGISTRY AT SUMBAWANGA CRIMINAL JURISDICTION SITTING AT MPANDA CRIMINAL SESSION NO. 61 QF 2022 REPUBLIC 'T; VERSUS "M JOSEPH S/O ADOLF @ KISUBI 4 JUDGMENT ••if ':--'-'-' ••. " '''< V - 14/05/2024 & 19/08/2024 MWENEMPAZI, X > The accused person herein named is charged with the offence of Murder . s-’ • ■••• ''S'-1-:-.-. ' ' " \ ':‘V: contrary to section 196 and 197 of the Penal Code, [Cap 16 R.E 2019], It is alleged that the accused person, JOSEPH S/O ADOLF @ KISUBI on the 2nd day of September, 2020at Matandarani Village within Mpanda District in Katavi Region, murdered one JUMA S/O SHEMELI @ MAGEMA. The first question to be answered is who are the perpetrators of the murder of Juma Shemeli, Magema. At the hearing of this case the Republic was i being served by Kizito John Kitandala State Attorney and Ms. Flavia Shiyo , State Attorney and the defence was being maned by Mr. Hamad Amour, Learned Advocate. According to the evidence adduced, the abnormal situation at the residence of JUMA S/O SHEMELI @ MAGEMA was first observed by Luhende s/o Manyanya (PW1) who testified that he is the neighbour of Juma s/o Shemeli @ Magema. He saw two persons, Joseph Petro and Joseph Adolf Kisubi carrying maize sacks and rice bags from the house of Juma Shemeli. Upon inquiring, they told him they have bought the said house from the said JUMA S/O SHEMELI @ MAGEMA at the price of Tshs. 1,400,000/=. They also told him that Juma Shemeli has gone to Sumbawanga to visit a local healer; although that explanation was not maintained. This is so because, when responding to inquiries from some other people, they said Juma Shemeli Magema had gone to look for another house to live. PW1 testified that he was not satisfied with answers. He decided to call the owner of the house, Juma s/o Shemeli @ Magema, his phone was unreachable. The next day he saw the two persons, Joseph Petro and Joseph Adolf Kisubi continuing caring maize and rice and later they started 2. bringing in their items, in particular those belonging to Joseph Petro. Thus, he decided to involve local leaders. They came on the evening of 06/09/2020. Other neighbors also convened at the house of Juma s/o Shemeli@Magema. They surrounded the house and started to interview members of the family belonging to Joseph s/o Petro. Joseph s/o Petro asked to talk in privacy to the leader and used the opportunity to ran away. The way events occurred was that people, who most of them were neighbors, after being suspicious of the explanation offered by Joseph Petro and Joseph Adolf Kisubi and upon Joseph Petro escaping decided that the next morning they will go to the plains (mbugani) to look for him where Juma Shemeli@Magema used to cultivate crops. Joseph Adolf Kisubi, the accused herein was among those who were found at the residence of Juma Shemeli Magema. He also assisted in the efforts to look for Juma Shemeli Magema. In the morning the accused suggested they start with the rear of the house belonging to Joseph s/o Petro, where there was a pit hole prepared to construct a toilet. He asked for a hoe and started to dig; another person took over and continued to dig the hole then a body started to emerge. At first, the leg was exposed out. That Is when they arrested Joseph Adolf Kisubi. 3 According to the testimony by Manamba s/o Shirhba (PW4), he received a call from one member of Matandarani hamlet in Kashelani Village, the area he was leading as the chairman. He was informed that Juma s/o Shemeli @ Magema is missing and Joseph Petro has shifted into his house. The person who was calling asked him to go to the house of Joseph s/o Petro. There, he found three people; when he asked the whereabout of Joseph s/o Petro, they told him that they had restrained him and when he heard they were calling the hamlet chairman (PW4), he ran away. Th Upon inquiry to the family members; they told him that Joseph Petro has bought the house from Juma s/o Shemeli @ Magema. PW4 decided to take the family of Joseph s/o Petro, to the Village Executive Officer's Officer. While there at Village Executive Officer's office people who remained searching for Juma s/o Shemeli@Magema called informing him that the body of Juma s/o Shemeli @ Magema has been found as it was buried in a pit hole. Thus, PW4 and Village Executive Officer Daniel Maembe (PW2) called the police. And a few minutes later people who were searching the body brought Joseph Adolf Kisubi to the Village Executive Officer's office. When the police 4 came, they interviewed Joseph Adolf who upon being assured he is safe, he admitted that they killed Juma s/o Shemeli @ Magema. According to what they heard, the accused said Joseph Petro convinced Juma s/o Shemeli to go to the forest to dig local herbs. When they were moving out and while still at the residence of Joseph s/o Petro, Joseph Petro followed Juma s/o Shemeli, struck him with a stick on the head. That is when Juma Shemeli fell down. Then Joseph Adolf appeared, together they carried the body of Juma Shemeli and buried him in the pit hole. H. 751 D/Cpl. Kennedy is among the police officers who visited the scene of crime. They arrived at Matandarani village at 11:00 hours. They found the suspect, Joseph Adolf Kisubi had already been arrested. He was at the Village Executive Officer's Office. They interviewed him briefly and he told them how they committed the crime. Then they left for the scene, accompanying the doctor. At the scene, they proceeded to dig the pit hole, the job which was done by the villagers. After they had taken out the body, he drew the sketch map with the assistance of Daniel Maembe(PW2), which was admitted as exhibit Pl. At around 13:00 hours they left for Mpanda Police Station. There at 5 16:00 hours he was assigned to record the cautioned statement of the accused person. In the statement Joseph s/o Adolf Kisubi told him that on 1/9/2020 at 22:00 hours Joseph Adolf Kisubi and Joseph Petro took Juma Shemeli Magema convincing him that they were going to the forest to dig traditional medicines. Joseph Petro pretended to be a traditional healer. While at the residence of Joseph Petro, Joseph Petro struck Juma Shemeli Magema with the stick on the head that led to his death. Joseph Adolf Kisubi and his friend took the deceased and buried him in a pit hole prepared as a toilet. The pit hole was adjacent to the house belonging to Joseph Petro. After they had completed burying the body, they went on to share properties belonging to the deceased. Joseph Adolf Kisubi was given part of cereals. Also, he was promised to be given male sexual energy booster, soft of Viagra. The caution statement was admitted as exhibit P2. In the cautioned statement the accused stated as follows, I quote in extenso: "Nakumbuka siku kadhaa nyuma nikkaa na rafiki yangu Joseph s/o Petro na kupanga namna ya kumua Juma s/o 6 Shemeli @ Magema Hi mwenzangu apate kuchukua eneo !a shamba lake na nyumba kwa kuwa alikuwa amepanga katika nyumba mojawapo ya Juma s/o Shemeli @ Magema na mimi nHitaka kuchukua sehemu ya mgao toka kwake pamoja na rafiki yangu aliniaidi tukifanikiwa kumuuwa mimi atanipatia dawa ya nguvu yakiume kwakuwa uume wangu ulikuwa hausimami wakati wa tendo la ndoa kinyume na zanani kipindi nilichofanikiwa kupata watoto wawili na rafiki yangu alikuwa mganga wa jadi. Mnamo tarehe 01/09/2020 majira ya saa 22:00hrs usiku baada ya Juma s/o Shemeli @ Magema kupiga majembe kutangazia wananchi kuhusu kupeleka watoto wao chanjo siku ya tarehe 02/09/2020 asubuhi. Mimi nilikuwa nyumbani kwa rafiki yangu Joseph s/o Petro tukiwa tunaendelea kupanga namna ya kumpata Juma s/o Shemeli Hi tumuue ndipo rafiki yangu alikwenda nyumbani kwa Juma s/o Shemeli na kumdanganya kuwa ampeleke porini wakachimbe dawa za mitishamba usiku huo huo na baada ya muda rafiki alifika nilipo kuwa ameniacha akiwa 7 ameongozana na Juma s/o Shemeli na baada ya kufika pale katika nyumba niiipokuwa nyumba ya rafiki yangu ndipo rafiki yangu aiichukua fimbo na kumpiga sehemu za kichwani na kupelekea Juma s/o Shemeli kuanguka chini na kufariki dunia tukamchukua mimi pamoja na rafiki yangu huyo na kwenda kumfukia kwenye shimo lililokuwa limeandaliwa kwa ajiii ya choo pale nyumbani kwa rafiki yangu na baada kumfukia tuliachana na kukubaliana •>->:• '■>\.' ’• •:•.;;• :•->f• ■:y.. • r;;■■;Pc.;• iv; tuonane asubuhi. Wakati tunafanya tukio hilo watu walikuwa wamelala na marehemu alikuwa kwa muda anaishi mwenyewe mke alikuwa amekwenda kwao kujifungua. Na siku ya pili niiiamka yaani tarehe 02/09/2020 majira ya saa 09:00hrs asubuhi nilikwenda kwa rafiki yangu tukaenda nyumbani kwa marehemu nikachukua gunia moja ia mpunga na mahindi gunia moja na gunia ziiizokuwa zimebaki kama nane hivi niiimwachia yeye rafiki yangu na alikuwa anatoka kuuza Hi nae akakodi mbuga kwa ajiii ya kiiimo cha mpunga. Na mara baada ya mimi kuchukua hizo gunia mbiii nilipeleka nyumbani 8 kwangu huku nikisubiri kuandaiiwa dawa ya nguvu za kiume. Siku ya tarehe 03/09/2020 majira ya mchana rafiki yangu Joseph s/o Petro na familia yake waiiondoka kwenye nyumba yao na kwenda kuhamia kwenye nyumba ya marehemu na kuanza kutoa vitu vya marehemu haswa mazao huku akiwa amewadanganya familia yakekuwa eneo hiio ia nyumba amenunua/ameazimwa nd marehemu na mimi nikiwa shahidi wa mauziano ya eneo hili na marehemu amehamia Mpimbwe Wiiaya ya Miele. Na ndipo wananchi waiianza kupata mashaka baada ya kuoma mail za marehemu zinauzwa huku yeye akiwa hayupo na ikabidi wananchi wanifuate mimi Hi waniuiize r „ vizuri maana kuna meseji aiituma rafiki yangu Joseph s/o I Petro kwenda kwa Luhende s/o Manyanya ambaye ni jirani wa marehemu kuwa ikieieza mimi niiishiiiki katika mauziano ya eneo hiio. Na ikabidi kwenda mpaka nyumbani kwa marehemu waiipohamia rafiki yangu na familia yake na walipomuuliza bwana Joseph s/o Patro juu ya hiyo hela aiikotoa alianza kushikwa na kugugumizi 9 ndipo walimfunga kamba Hi wampeleke ofisi ya mtendaji wa kijiji ghafla aliwatoroka na kuanza kukimbia walljaribu kumfukuza bila mafanikio ndipo wakanichukua mirni pamoja na familia ya rafiki yangu mpaka kwa mtendaji ambapo nitikiri kutenda kosa hiio la kumuua marehemu Juma s/o Shemeli @ Magema nikishirikiana na rafikiyangu Joseph s/o Patro na kisha nilimtupa marehemu kwenye shimo la choo nyumbani kwa rafiki yangu Jpseph s/o Petro na tulikuwa tunataka mall zake pia tulichukizwa na tabla yake ya kutongoza wake za watu. Na hayo ndio mae/ezo yangu na sahihi kama nilivyoeleza" The event leading to the demise of JUMA SHEMELI @ MAGEMA occurred at around 22:00 hours. At the time there was only Joseph Petro, Joseph Adolf Kisubi and the deceased. Obviously, the first two are the actual perpetrators of the death of JUMA S/O SHEMELI @ MAGEMA. They killed him and buried him in the pit hole prepared as a toilet. 10 On the date the 6/09/2020 after the body had been retrieved from the pit hole, Dr. Biniface Masaga (PW6) testified that he conducted post mortem examination. He testified that: "The body belonged to a male dead person. I observed on the surface, on the head, right side of the skull, the head had been pounded by heavy object. A carefultouch bones showed to be broken. The skin Wasnot pierced, hairs were intact. The object did; not penetrate but the beating was not by a sharp object but there was rupture of vessels which lead to the mix ofblood and brain. Thus, the brain lacked oxygen as a result of rupture of blood vessels". The post mortem examination report, was admitted as exhibit P3. In it the cause of death is recorded to be "internal brain bleeding due to heavy stick/ wood beating" ■ ; Now, having been able to appraise the evidence from the admission in the caution statement, I am satisfied that the caution statement was clearly procured when the accused was a free agent. Even in the preliminary 11 interview by the police shows the accused was free to open up after he was assured to be in safe hands (refer evidence by PW4 Manamba s/o Shimba). Even the discovery of the body was through the accused person who showed people the place where they buried the body. Witnesses PW1, PW3, PW5 and PW6 testified that the body of the deceased was recovered from the pit hole. While the case was being heard witnesses referred to the fact that the accused person was the one who showed the place where, the body was buried. That he was arrested and taken to the Village Executive Officer's ’ w.’:; <•' •. 'z:. j . f if!'- r. •- office for safe custody. However, the testimony was not cross examined by the defence. In the case of Nyerere Nyague Vs. Republic, Criminal Appeal No. 67 of 2010 (unreported) at page 5 -6; the court held that: "A party who fails to cross examine d witness on a certain matter is deemed to have accepted that matter and will be estopped from asking the trial court to disbelieve what the witness said ' . In the trial, PW1, PW2, PW4, PW5 and PW3 have testified that the accused person showed them where the body of Juma Shemeli @ Magema was 12 buried, That fact was not controverted and also was not at any time disputed; also, the accused person admitted at the Village Executive Officer's office before the police when the police arrived and later during recording of the cautioned statement. The evidence shows the recording was made when the accused was a free agent. In the case of Samwel Mkila Vs. Republic, Criminal Appeal No. 47 of 2001, Court of Appeal of Tanzania at Mwanza it was decided that: "The confession is admissible if it is voluntary". I am therefore of a settled mind, the admission made by the accused is really what happened on the date the offence was committed. Furthermore, the evidence by the doctor confirms what has been stated in the caution statement that the accused was beaten on the head using a stick. Under the circumstances, I have no doubt the accused was involved in the murder of Juma Shemeli Magema, the act which was done together with his friend Joseph Petro who we are told he ran away. 13 As to whether there was malice aforethought so as categorize the act as murder, it is clear in the caution statement, exhibit P2, that the acts were planned. It was a plan by Joseph Petro and Joseph Adolf Kisubi to kill Juma Shemeli @ Magema so that Joseph Petro takes the house owned by Juma Shemeli Magema and part of his land. Joseph Adolf Kisubi wanted to have some cereals. A mission which was accomplished by the duo. Normally, external circumstances surrounding the commission of an act of killing may be considered in finding whether the acts were deliberated with intent existent in the mind of the accused who took human life. The paragraph above shows there was a discussion deliberated by Joseph Petro and Joseph Adolf Kisubi. Apart from that, section 200(a) of the Penal Code, [Cap 16 R.E 2019] provide that: "Malice aforethought shall be deemed to be established by evidence proving any one nor more of the following circumstances- (a) an intention of cause death of or to do grievous harm to any person, whether that person is the person actually killed or not" 14 In this case, accused person and his colleague who escaped, had a plan which they put into action. They murdered on J. Moreover, the nature of weapon used and force applied is in line with the plan contemplated and put into action. Without flicker of doubt the accused person had acted to kill Juma s/o Shemeli® Magema and the act was backed up by a firm intention to kill. Under the circumstances, the accused person is found guilty of the offence . r! I?' 'x-i. ' Tr?1,sy' of murder and is accordingly convicted with the offence of Murder contrary to section 196 of the Penal Code, [Cap 16 R.E 2019]. It is ordered accordingly. Dated and signed at Sumbawanga this 19th day of August, 2024. T.M. MWENEMPAZI JUDGE 15 SENTENCE: There is only one sentence for a person convicted with the offence of Murder c/s 196 of the Penal Code, [Cap. 16 R.E.2022]. The Convict is sentenced to suffer death by hanging as per section 197 of the Penal Code, [Cap 16 R.E 2022]. T.M. MWENEMPAZI JUDGE 19/08/2024 Judgment delivered virtually this 19th day of August, 2024., Ms. Flavia Shiyo, learned State Attorney appearing for the Republic and Mr. Hamad Amour, learned advocate appearing for the accused persons; the accused persons being at the Resident Magistrates' Court of Katavi at Mpanda. 16