Matokeo Anselim Mboya

m THE HlCSSi COURT OF THE UNITED REPUBLIC OF TANZANIA (HOROGORO SUB REGISTRY) AT IFAKARA ORIGINAL JURISDICTION CRIMINAL SESSIONS CASE NO. 14129 OF 2024 REPUBLIC VERSUS MATOKEO ANSELINE MBOYA 1^^ ACCUSED PERSON ALBETUSGipO LIPON^O.,.^^ @SHUKU LIPONGO ............2^'^ ACCUSED PERSON JAFARI ALBINUS LYAVU@ BIG ................3^° ACCUSED PERSON YUSUPH MWINDADI @ WHITE 4™ ACCUSED PERSON MUYA ABDI HOSSEN ©AMBASSADOR ..... 5™ ACCUSED PERSON Date of Last Order: 09/09/2024 Date of Judgement: 18/09/2024 JUDGEMENT MAGOIGA,^.^ '. . The acGUsed persons, MATOKEO,ANSELINE MBOYA, ALBETUS GIDO LIPONGO @ SHUKU LIPONGO, JAFARI ALBINOS LYAVU @BIG, YUSUPH MWINDADI ,©white..,, AND MUY^ ^AB.DI HOSS.EN ©AMBASSADOR jointly and together stand charged with one offence of murder of JAFARI , SEIF MALOKELA (now deceased) contrary to sections 196 and 197 of the Fenal'Cbdd, [Cap 16 R.E 2022]. This court was informed that, on the 24^'' day of December, 2023 at Mabukuia area, Mbasa ward, within Kilombero district in Moroqoro region, the accused ^ ^ ^ ■ ■ ■ '- 4^ persons murdered, one, Jafari Seif Malokela. The accused persons pleaded not guilty to the charge of murder. Preliminary hearing was held in accordance with the Accelerated Trial and Disposal of Cases Rules, 1988; whereby the prosecutions stated in details all facts and evidence of the case. Briefly, the facts are that on 24^^ day of December, 2023 the deceased borrowed a motor cycle with registration numbers MC 314 DRD make Haojue from Hamis Nuhu Likumbai (fellow boda boda) for taking the 2"^ accused person to Kilama. On the way, when they reached Mbasa, the owner of the motor cycle, one, Costa Simon Fundisha saw his motor cycle and identified it and all the persons on board were the deceased, Albestus Gido Lipongo @Shuku Lipongo and Matokeo Anseline Mboya. Immediately, Costa Fundisha called the driver of the said motor cycle Hamis Nuhu and queried, among others, why the said motor cycle was driven by Jafari. Hamis Nuhu explained that Jafari Seif was taking his client to Kilama and will shortly be back. Further facts were that, Jafari Seif never came back and all efforts by Hamis Nuhu to call him were in vain. Eventually, Hamis Nuhu reported to his boss and later the matter was reported to police. Investigations were mounted and all the accused persons were arrested, interrogated on their 2 involvement in this murder case and a number of exhibits were collected including the said motor. The facts went that on 27/12/2023 the body of the deceased was found at Makukula area lying on grasses with cut wound on the neck, all legs and hands. Upon being examined, it was found that the deceased died due to Hypovolemic shock/hemorrhage shock. The accused persons were, then, charged with this homicide, hence, this judgement after hearing the case for both sides. Full trial was, then, held whereby the Republic called a total of 10 witnesses and tendered in evidence 6 exhibits. At the closure of the prosecution case, this court found that no case of murder was made out against the 4'^^ and 5^^ accused persons. Consequently, this court discharged them from the charge of murder. The 1^^ accused person fended himself and called one witness in his defence and tendered no exhibit. The 2"^^ accused person fended himself and called two witnesses in support of his defence and tendered no exhibit. When this case was called on for hearing, the Republic was enjoying the legal services of Mr. Emmanuel Kahigi, learned Senior State Attorney, Messrs. Dastan William and Mr. Simon Mpina, learned State Attorneys; whereas the accused person was enjoying the legal services of Ms. Josephine Mbena, learned advocate, the 2"4accused person was enjoying the legal services of Mr. Elijah Bageni, learned advocate, the 3'^ accused person had the legal services of Mr. Casian Matungila, learned Advocate, the 4*^"^ accused person had the legal services of Ms. Donatila Teendwa, learned advocate and the 5^"^ accused person was advocated by Ms. Fatuma Issa, learned advocate. The substance and summary of the prosecution and defence case was as follows: PWl-TWALIB MTIMBUKA - a peasant, bodaboda driver and resident of Kikwawila village under affirmation told the court that, on 26/12/2023 he got information that Jafari Seif was missing from 24/12/2023. PWl told the court that on 27/12/2023 in the morning he was hired by Shuku Lipongo to take him to Mbasa where he wanted to meet his friend. According to PWl, they went and met Matokeo Anseline Mboya and then drove them to Mkukula near the farms. Matokeo showed Shuku the farm and after while Shuku and his friend ordered PWl to drove them back to where PWl picked each from. Further testimony of PWl was that when they arrived back to Kikwawila, they found many younger people gathered with the aim of looking for the lost body. PWl and Shuku joined the group. Flowever, PWl insisted that Shuku advised the group that they go to Makukula and the group heeded to his advice. To his big surprise, PWl told the court that, the way they used was the same way Shuku led the group and the body of the deceased was found just few metres from the road where they stopped In the morning. PWl identified Shuku because they live In the same village and street and first accused person as Matokeo Ansellne Mboya as people he drove that very morning of 27/12/2023 and introduced by Shuku. PW2- KASSIM BUSHIR MALOKEJJV- under affirmation told the court he Is a peasant and resident of Kikwawlla village. According to PW2, the deceased went missing on the evening of 24/12/2023. On 27/12/2023, PW2 Identified deceased body as that of his younger brother found dead at Makukula. According to PW2, the deceased had big cut wound on the neck, legs and hands. PW3-ERAST0 ELCK RIT-under oath told the court that he is a human doctor graduate working at Kibaoni Health Centre at Ifakara. PW3 told the court that on 27^^ day of December, 2023 he examined the deceased person found Makukula area. According to PW3, the deceased had cut wound on the neck, in the legs and hands and died due to hypovolemic shock/hemorrhage shock. PW3 concluded that the deceased did not die a natural death but brutal death caused by wounds, in particular, one inflicted on the neck and completely severed from the head. PW3 tendered in evidence Postmortem Report of the deceased as exhibit PEl. PW4- G1426 CPL AIDAN- under oath told the court that he is the Exhibit Manager at Ifakara police station since 2010. PW4 told the court that on 16/01/2024 he received motor cycle with registration No. MC388 DRS haojue black in colour and two used tyres from Sgt Revocatus and registered them as 03/2024. PW4 identified the said exhibit and tendered them as exhibit PE2a-b. PW5-F.3170 D/SGT HUSHIHIR- under affirmation told the court that he is police officer within the Criminal Investigations department at Regional Crimes Office at Morogoro. PW5 told this court how he was instructed to arrest Jafari Albinus Lyavu @ Big who had received a motor cycle from Matokeo Anseline Mboya, which motor cycle was involved in an incident in which Jafari Self was murdered at Kilombero. PW5 went on telling the court that after arresting Jafari Albinus Lyayu@Big (third accused person), he admitted to receive the motor cycle with Registration NO.MC314 DRD and sold it to Hamis of Kilifi Tanga who sent Yusuph Mwindadi @White (the fourth accused person) to take it to Kilindi Tanga. PW5 told the court that with help of the third accused person, he managed to arrest the 4^^ accused person Further testimony of PW5 was that, he v\/ent to Kilindi Tanga together with the fourth accused person and was able get the disputed motor cycle but with changed registration as MC 388 DRS gnd two used tyres from the 5^'^ accused person Muya Hossen ©Ambassador who allegedly bought it from Said s/o ?. PW5 identified the to 5^^ accused persons in dock and exhibit PE2a-b. PW6- HAMIS NUHU LIKUMBAI under affirmation told the court that he resides at Kikwawila village and bodaboda man driving a motor cycle owned by Costa Fundisha with registration MC 314 DRD. According to PW7, on 24/12/2023 Jafari Seif Mwalokela (now deceased) asked him for motor cycle to go and take his client Shuku Lipongo- the second accused person. PW6 went on telling the court that, immediately after few minutes from giving the motor cycle to Jafari Seif, the owner one Costa Fundisha called him, and among others, queried about seeing his motor cycle with Jafari on board with Shuku Lipongo and Matokeo Mboya. PW6 told the court that he called Jafari who told him that they are at Kilama. According to PW6, all attempts to call and trace Jafari Seif thereafter were in vain. PW6 reported the matter to the owner and later to police. PW6 further testimony was that deceased was found dead at Makukula on 27/12/2023 and the deceased had big cut wounds on his neck, legs and hands. PW6 identified the 2"^^ accused person and the motor cycle in dispute by its black colour (despite a change in its registrstion), red marks he put on the rings and pads. PW7-C0STA SIMON FUNDISHA under oath told the court is the owner of the motor cycle In dispute with registration No.314 DRD, black in colour and haogue made. According to PW7, the said motor cycle was driven by Hamis Nuhu Likumbai but on 24/12/2023 in the evening he saw Jafari Self with the said motor cycle on board being Shuku Lipongo and Matokeo Mboya at Mbasa area. PW7 told the court that Jafari whom they know each other hooted the motor cycle to greet him. PW7 went on telling the court immediately, he called Hamis Nuhu Likumbai and asked him of the motor cycle and money. According to PW7, the last persons to be seen with the deceased were Shuku Lipongo and Matokeo Mboya. Further testimony of PW7 was that ori 17/01/2024 he was called to police where he was able to identify the motor cycle through its registration numbers had been changed to MC.388 DRS. PW7 tendered the original registration card of MC314 DRD in evidence as exhibit PE3. Also, PW7 identified the l'"^ and 2"^ accused persons in court and the motor cycle. PW8-CPA DAUD HASHIM RAMADHANI under affirmation told this court that he works with Tanzania Revenue Authority. According to PW8, he received written request from OC-CID to check in Computerized Motor Vehicles Registration System and verify the lawful registration of the MC 314 DRD and MC 388 DRS. PW8 went on telling the court that after checking the system, he found out that motor cycle MC314 DRD was lawfully imported into the country and owner is GS Group Company Ltd of Dar es Salaam. According to PW8, motor cycle MC 388 DRS has no correlation between chassis numbers, engine numbers and registration numbers and that MC 388 DRS the owner is Mtama and is for TVS King Bajaj and not motor cycle. PW8 collectively tendered in evidence two letters as exhibit PE4a-b. PW9- ASP DIVENTINE NYAHORO under oath told the court that he is a police officer and OC-CID of Kilombero. PW9 told the court on 27/12/2023 he received a phone that a dead body has been seen at Makukula. Himself and other soldiers went to the scene of crime and was able to see the deceased who had big cut wound of the neck, legs and hands. PW9 ordered interrogation of witnesses and was told that it was the 2"*^ accused who led the people to discover where the deceased was. PW9 went on telling the court that he managed to arrest the accused persons whom upon interrogated confessed to have murdered the deceased. As to the other three accused person, PW9 admitted not involved in killing but on receiving, selling and buying stolen property. PWIO- F407i D/Sgt REVOCATUS under oath told the court that on 27/12/2023 together with PV\/9 went to Makukula village where the body of the deceased was found lying and was ordered to draw a sketch map. PWIO tendered in evidence a sketch map as exhibit PE5. ' ■■ ■. :9: - Further testimony of PWIO was that on 05/01/2023 he recorded the cautioned statement of the 1^*^ accused person. According to PWIO, the 1"*^ accused person together with 2"^ accused person confessed to murder the deceased. PWIO tendered in evidence the cautioned statement of the . 1^ accused person as exhibit PE6. Further testimony of PWIO was that, he went to Morogoro for exhibits relating to this case. PWIO tendered in evidence motor cycle registration card for MC388 DRS as exhibit PE7. PWll- A/INSPECTOR BENEDICT MATUNDUKA under oath told the court that on 12/01/2024 together with other soldiers from Morogoro managed to seize a motor cycle MC388 DRS and two used tyres and registration card for MC388 DRS from the 5^*^ accused person (Muya Abdi Hossen @Ambassador) who resides at Mafisa village, Mvungwe ward within Kilindi district in Tanga region. PWll identified the 4^^ and accused persons as the people who assisted the collection of Motor cycle in dispute. PWll tendered in evidence certificate of seizure as exhibit PE8. PW12- KASSIM MUHARASI AKIDA under affirmation told the court that he was the Ward Executive Officer of Mvungwe ward and during his services at Mvungwe ward oh 12/01/2024 he was called by PWll and asked to assisted as independent witness for search of motor cycle in dispute. According to PW12, on 13/01/2024 they managed to recover the motor cycle allegedly involved in the commission of murder at Kilombero and later on sold and transported to Kilindi Tanga to the 5^^ accused person. PWl2 identified the 4^'' and 5^^ accused persons and the certificate of seizure exhibit PE2 and exhibit PE8. That was all about the case for the prosecution and this court guided by the provisions of section 293(2) of the Criminal Procedure Act, [Cap 20 R.E.2022] found the evidence on record not sufficient to call the 3/^, 4^^ and 5^'^ accused persons to enter defence for a case of murder because all prosecution evidence against them was in support of receiving, transporting and buying stolen motor cycle in dispute as such discharged them from this case. As to the 1^^ and 2"^ accused persons, I found ,the evidence on record sufficient to call them to enter defence. Consequently, therefore, the court addressed the accused persons of their rights, and guided by their respective advocates, the accused persons opted to defend themselves under oath. The first accused person fended himself and called one witness in his defence with no exhibit. The second accused person fended himself and called two witnesses but had no exhibit. DWl- MATOKEO ANSELINE l^BOYA under oath told the court that he is a peasant and resident of Kivukoni village within Ulanga district in 11 . ■ . Morogoro region. DWl admitted knowing the charge facing him but which he seriously denies to be true against him. According to DWl, on 24/12/2023 he was at Kuvukoni in the farm but his wife called and told him that their child is sick. DWl went on telling the court that he came back and started looking for money to treat his sick child. DWl insisted that, the witness who said that saw him at Mbasa is a lier. DWl denied knowing Shuku Lipongo- the second accused person and that the first time to know him was when the two were jointly charged in this case. Further testimony of DWl was that, his cautioned statement tendered in evidence was procured by torture. DWl denied knowing Costa Fundisha and was not at Mbasa. Further, DWl denied knowing the Jafari Albinus Lyavu @ Big. DWl admitted was arrested on 05/01/2024 at Kivukoni where he went to buy fish. In the circumstances, DWl denied killing the deceased because he was not at Mkukula on 24/12/2023. Basically, DWl distanced himself from the death of the deceased. Next was DW2- LIDIA NALIOTO under path told the court he is a peasant and wife of the accused person. DW2 supported the story of DWl that, they were together trying to sell rice and at 20 hours went to traditional healer where they_stayed till 25/12/2023. 12 Next was DW3- ALBETUS GIDO LIPONGO @SHUKU (the second accused person) under oath told the court that Is peasant and resident of Kikwawila village at Tangini street for five years. DW3 denied the charge against him because is not true. DW3 denied knowing Twalib Mtimbika, Hamis Nuhu and Costa Fundisha and said their testimonies are not true because on that day he spent his day at the farm since morning to evening. According to DW3, he was with his step mother Sekunda Gilongile till 5 pm, when they came back home. Further testimony of DW3 was that he never got information of the missing boy till on 27/12/2023. DW3 strongly denied knowing the deceased. DW3 admitted that he went with others at Makukula and where they managed to get the body of the deceased on 27/12/2023. DW3 denied knowing Matokeo Anselini Mboya (the first accused person) till when was joined in this case on 26/01/2024. DW3 went on denying the contents of the cautioned statement of Matokeo A. Mboya as not true. DW4- HADDA SAID LI MAGA who under affirmation told the court that she is the chairperson of Tangini street within Kikwawila village. According to DW4, Shuku Lipongo stays in her street and knows him for about 5 years. DW4 went on telling The court on 25/12/2023 he received information from the father of Jafari Self Malokela that the deceased was missing and advised them to report the rrjatter to police. 13 Further testimony of DW4 was that Jafari Self Malokelo and Shuku Lipongo stays in the same street and know each other because Jafari Seif used to carry'pombe ya kienyeji'for Shuku Lipongo. DW4 told the court earlier January, 2024 Shuku went to her and told her that he is accused for the missing Jafari and she adviced him to be cool. Next and last witness for the second accused person was DW5- SEKUNDA UBAD LIJONGILE. Under oath told the court that she is a step mother to the 2"'' accused person and stays with him atTangini street within Kikwawila village. DW5 admitted knowing Shuku is charged of murder which occurred on 24/12/2023 at Makukula area. Further testimony of DW5 was that on the alleged date of incident she was with Shuku at the farm from morning of 6: 00 am to 6:30 pm. Like, Shuku, DW5 denied knowing her fellow street members. This marked the end of hearing of this homicide case. The learned trained minds for parties prayed for leave to file final written submissions in support of their respective stances. I granted the leave and ordered them to file on or before 11/09/2024 but as I am composing this judgement, only the Republic filed and for the reasons , best known to the defence counsel failed to file their final submissions. I am grateful to the learned State Attorneys. 14 Addressing the court in final closing submissions, the Republic, speaking through Mr. Emmanuel Kahigi, learned Senior State Attorney contended that it is a cardinal principal under section 3(2) of the Evidence Act,[Cap 6 R.E 2022] that prosecution have unwavering legal duty to prove the case beyond reasonable doubt. It was, therefore, the strong submissions of the learned Senior State Attorney in this case that, the circumstantial evidence on record proves beyond reasonable doubt that it was the accused person who were last seen with the deceased and no reasonable explanation was offered, hence, killers of the innocent late Jafari Self. In this he relied on evidence of PWl, PW6, PW7 and DW4. According to the learned Senior State Attorney, prosecution witness PWl, testified that it was the second accused who led them to retrieve the deceased body at Makukula area. Not only that but nothing serious was cross examined against these witnesses to contradict their testimonies and invited this court to believe them as reliable and coherent witnesses. On that note, the learned Senior Attorney surmised that all prosecution evidence looked in its totalib/ has proved both actus reus and men rea which, according to him, was proved by the conduct of the accused who lied not knowing each other, the second accused person lied not knowing the deceased while they knew each other, stays in the same street and has been sending for his personal activities, killed him and all these were 15 to conceal his evil intentions and strongly urged this court to convict the accused persons of murder as charged. The learned Senior Attorney cited the cases of SOSTHENES MYAZANGIRO @ NYARUSHASI Vs. REPUBLIC, Criminal Appeal No. 276 of 2014, FELIX LUCAS KISINYIKA Vs. Republic, Criminal Appeal No. 129 of 2002 and Goodluck Kyando Vs. Republic, [2006] TLR 363 to support the above stances on failure to examine a witness on important matter implies the acceptance of the truthfulness of the witness's evidence, lies, credibility and entitlement of witness credence and believe respectively. On that note, the learned Senior Attorney urged this court to find and hold that the prosecution has discharged their legal burden to the required standard in criminal cases and continue to convict and sentenced the accused persons as charged. The noble task of this court now is to determine whether the prosecution has discharged their legal burden of prove which is always beyond reasonable doubt that, it was the accused persons before this court and not somebody else who murdered the deceased and were with malice aforethought. However, before going into that hill task, having heard stories of both sides in this case, I have noted that there are some facts which are not in ■ ■ ^ . . ■ . ■ ' ■ 16 , dispute between the rivaling parties in this case. The undisputed facts will assist this court in determining this case. These are: one, it is not in dispute that the deceased Jafari Self Malokelo disappeared on 24/12/2023 and his body was found dead on 27/12/2023 at Makukula area. Two, it is not in dispute the deceased did not die a natural death but due to severe hemorrhage from cut wounds on the neck, legs and hands using sharp object. Three, it is not in dispute that the deceased went missing on 24/12/2023 with a motor cycle MC 314 DRD which was usually driven by Hamis Nuhu Kumbali(PW6) under contract with Costa Simon Fundisha as the owner. However, what is serious dispute between parties in this case, in my own considered opinion are two issues; One, whether the accused persons vyere the last person to be seen with the deceased and had no reasonable explanation. Two, is whether the accused persons are the one who killed the deceased and were with malice afore thought. I will start with the first issue whether the accused persons were the last persons to be seen with the deceased and offered no reasonable explanation. The evidence in this case, are based on circumstantial evidence as correctly argued by Mr. Emmanuel Kahigi, learned Senior State Attorney and rightly so in my considered observation because none of the prosecution witnesses saw. the accused persons instilling the noted wounds to the deceased as observed by PW3 in exhibit PI. Therefore, looking at the prosecution case, circumstantial evidence is based on last person to be seen with the deceased, confession and evidence of the co- accused. However, before going into the analysis of evidence on record, I find it imperative to say use of circumstantial evidence to convict or not, is not new to our jurisdiction. See the case of.Mashaka Juma Ntaluia Vs. Republic, Criminal Appeal No. 140 of 2022 CAT atTanzlii the Court discussed at length the use of circumstantial evidence and quoting guidance to other cases came to the conclusion that in order for the circumstantial evidence to warrant conviction, same must met three conditions, namely: - 1. The circumstances from which an inference of guilty is sought to be drawn, must be cogently and firmiy established; 2. Those circumstances should be of definite tendency unerring pointing towards theguiity ofthe accusedperson, and 3. The circumstances taken cumulatively,shouldform a chain so, complete that there is no escape from the conclusion that within all human probability the crime was committed by accused person and no one else. Further guidance on the principle of last person to be seen with the accused was in the case of Sikujua Idd Vs. Republic, Criminal Appeal No. 484 of 2019 in Tanzlii in which it was observed and directed that: ^Xonvlctlon against the accused person for murder as the last person to be seen with the deceased there must be Irresistible evidence that connect the accused person and absence ofreasonable explanation by the accused person to those circumstances leading to the killings. Guided by the above considerations and judicial pronunciation by the Court of Appeal and having gone through the entire proceedings and the evidence on record by both sides, I am inclined to believe the evidence for the prosecution on this point because it irresistibly points accusing finger to the accused persons as the last persons to be seen with the deceased without any reasonable explanation. I explain why I am taking the above stance. One, PWl was very crucial witness in this case who took the two accused persons;by his motor cycle to Makukula area in the morning of 27/12/2023 and later in the day,,the second accused person ■■ ' ■ M led fellow villagers to find the body of the deceased to the exact place where the first accused and the second accused person who knew each other very well were. Two, I ,observed the demeanor and credence of PWl, he was coherent and no reason whatsoever was given that may create doubts to his testimony. Not only that but also that he was not even cross examined on this very serious point to show that what he testified was lies or had any reason behind as against the accused persons. It is trite law that failure to cross examined a witness on a very serious point is an admission of the truth of what he testified on that point. In this case the testimony of PWl that he took the two accused persons to the farm in the morning of 27/12/2023 goes to the root of this case that the two knew each other and met exactly where the body was found and the second accused person led people to discover the deceased later in the day. See the cases of Nyerere Nyague Vs. Republic, Criminal Appeal No.67 of 2020 and Isaya Athanas Vs. Republic, Criminal Appeal No.435 of 2021 by CAT at Tanzlii. Three,the testimony by the accused persons that they do not know each Other is negated by the testimony of PWl which was not shaken at all in this case and tells more that the two decided to tell lies in this court that they knew not each other before their arrest. Not only that but also the testimony of the second accused person that he doesn't know the •20 deceased was negated by the testimony of DW4 who was categorical that, Shuku and Jafari (the deceased) knew each other as Shuku used to send him for his 'pombe' regard being that both hails from the Tangini street. Four, the testimony of PW6 and PW7 iooked together cement the prosecution caSe that, indeed, the deceased when borrowing the motor cycie from PW6 was categoricai that he was going to take Shuku Lipongo his dient whom PW7 saw the two accused persons at Mbasa on board with the deceased. These pieces of testimony were not shaken by defence and remain to credible in the circumstances of this case. Five, I have seriousiy and carefuliy. considered the evidence of the accused persons, but with due respect to them, no reasonabie explanation was given as to the whereabouts of the deceased as the iast persons who were with him as seen by PW7. The alibi raised though no notice was given in accordance to the provisions of section 194 of the CPA are but iies by the accused persons. As to the second accused person that he was at the farm with DWS and that they left the farm at 5 pm but DW5 said that they left the farm at 7 pm. This variance of aimost 2 hours cannot be beiieved and I am entitled to say DW5 who is the step mother of the second accused had an interest to save the. son. As to the first accused person his alibi was to generai make any useful doubts to the prosecution case. 21: On the foregoing reasons, having considered their respective alibi, I find and I am entitled to hold that, the accused person's alibi with due respect to them was raised as an afterthought on their party. I hereby reject them. Six, the confession of the first accused person is well detailed and materially corroborate the other evidence on record that it was the accused persons who murdered the deceased and stole the motor cycle MC314 DRD driven by the deceased which through the confession same was found at Kilindi Tanga and the evidence is loud and clear the two went on to sale the same through Jafari Albinus @Big after cooperating with the investigations relating to the incidence same motor vehicle was retrieved and tendered here in court. Seven, I am quite live with the principle that a confession of the co- accused person cannot implicate a co-accused unless corroborated. See the case of Stephano Ndagizi Vs. Republic,[1994] TLR 62 where it was held that: - '^Evidence from co-accused as in this case, is accomplice's evidence and a court may convict on accomplice's evidence without corroboration, if it is convinced that the evidence is true, and provided it warns itself of the dangers of conviction on uncorroborated acCompSice's evidence." ■ 22. Guided by the above and having considered the evidence on record, I have no flicker of doubt that the evidence by the prosecution is coherent, corroborative in nature and was not shaken for want of reasonable explanation the two accused person. Gorroboration started with the evidence of PWl, PW6 and PW7 and exhibits which was received exhibits PE2, PE 3, PE7 and PE8 all points and corroborate that it was the first and second accused person who were last seen by the deceased. Their general denial is not accepted. Eight, the conduct of the second accused person that he doesn't know the deceased while knowing for sure knew him as fellow villager from the same street and has been sending him and take his'pombe'is other than blatant denial and lie on his part to escape the hands of justice. Not only that but denying other fellow street boys like PWl and PW6 cannot escape this court's eye that the second accused person was not candid and I cannot believe him. From the foregoing, it can safely be deduced that in the circumstances of this case; one, the two accused persons were the last person to be seen with the deceased at Mbasa as amply testified by PW7. Two,the meeting of the two accused persons in the morning of 227/12/2023 when taken by PWl at the very place where the deceased body was found after being led by the second accused person and the timing that were at Makukula 23 area and finding of the deceased's body and in the absence any plausible explanation on the part of the accused persons, hence, this court is inclined to find the first issue in the affirmative that the accused persons were the last persons to be seen with the deceased and have failed to offer plausible explanation as to her death at Makukula area. This takes me to the second issue whether the accused persons are the one who killed the deceased and were with malice afore thought. This issue will not detain much of this court's time. I have carefully considered the evidence of prosecutions witnesses altogether, no doubt cumulatively and irresistibly points accused fingers that it was the second accused person who led the wananchi to where the deceased body was as such gives one conclusion that the second accused when hired late Jafari and later took the second accused person on board jointly and together decided to kill the deceased. Not only that but also according to exhibit PE6 (cautioned statement of the accused person), the accused person together with second accused person admitted to have killed the deceased using machette. The parts of the body the wounds were inflicted; namely, the neck which was completely severed from the body and the machette used is such kind of brutal killing was actuated with malice aforethought. In the case of Bujigwa John vs. Repubiic, Criminal Appeal No. 427 of 2018 , .24 ■ ■ CAT at Tanzalii, in which the CAT referred the case of Enock Kapele Vs. Republic, at page 19 in which the Court held that malice aforethought can be inferred from various factors such as:"the type and size of weapon,if any used in attack,the amount of force applied in the assault, the part or parts of the body the blow or blows were directed or inflicted, the number of blows although one blow may, depending upon the facts of the particular case, be sufficient for this purpose, the kind of injury inflicted, the attackers utterances, if any, made before or during or after the killing and the conduct of the attacker before or after the killings.'' The accused generally denied killing the deceased and gave evidence which when considered do not in any way as rightly argued by the learned Senior State Attorney and rightly so in my considered opinion do not pinch holes to the strong evidence by the prosecution side. Their denial are too general with no plausible explanation. That said and done, and for the reasons I have tried to explain above, I am satisfied that prosecutioris have been able to prove their case beyond reasonable doubt that, it was the accused persons who killed the deceased with malice aforethought. Hence, satisfied and find that the two accused persons are guilty as charged and consequently proceed to .. . 2S convict them for the offence of murder contrary to sections 196 and 197 of the Penal Code,[Cap 16 R.E. 2022] as charged in this court. Order accordingly. Dated at Ifakara this 18^*^ day of September, 2024 .1^ MAGOIGA 10 Vm judge m I ...i F 181091 COURT: Juag^e^jdeliyei-ed in the presence of Mr. Emmanuel Kahigi, learned Senior State Attorney assisted by Messrs. Dastan William and Simon Mpina, learned State Attorneys for the Republic and in the presence of the accused persons and their respective advocates, Ms. Josephine Mbena and Mr. Sylivester ,Mji[anzj, holding brief for Elijah Bageni, learned 7^ X LU X- ^.M-ImAGOIGA JUDGE 18/09/2024 Aggravating factor bv the Republic: Kahigi, learned Senior State Attorney: My lord, this is rnurder,' ahd punishment is one. We pray the court to sentence the accused person in accordance to law. Mitigating factors bv defence: Ms. Mbena, adv .26. : My Lord, we pray for lenience in sentencing the first accused person, if possibie, being a younger person be convicted for iife imprisonment instead suffering death by hanging. Mr. Miianzi, Adv- My Lord, I have no comment. Sentence: Having heard the brief prayer by the learned Senior State Attorney to consider the law and sentence the convicted persons in accordance with the dictate of the iaw and mitigating factors by learned advocate Ms. Mbena for the accused person and Mr. Miianzi advocate hoiding brief for Mr., Bageni, adv for the second accused person, but I am mindfui that this being murder case, and according to iaw has one sentence and my hands are tight to sentence otherwise than sentence provided by the law. That said and done, I hereby sentence the and 2'^'^ accused persons to suffer death and are hereby condemned to suffer death by hanging. ^ M h dlh ■ r Order accordin LU -r S.M. IGA / / JUDGE 18/09/2024 COURT Right ap eal fully ex LU lAC JUDGE 18/09/2024 27