Ernest Lucas Mabena

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB REGISTRY) AT IFAKARA ORIGINAL JURISDICTION CRIMINAL SESSIONS CASE NO. 9506 OF 2024 REPUBLIC VERSUS ERNEST LUCAS MABENA Date of Last Order: 17/09/2024 Date of Judgement: 24/09/2024 JUDGEMENT MAGOIGA,J. The accused person, ERNEST LUCAS MABENA is charged with murder of BENSON SAMWEL MWAKASANGA contrary to sections 196 and 197 of the Penai Code,[Cap 16 R.E 2022]. This court was informed that, on the 24^^ day of Juiy, 2023 at Kichangani suburb, Mngeta Division within Kiiombero District in Morogoro Region, the accused person allegedly murdered, one, Benson Samwei Mwakasanga (g) Kamongo herein referred as the deceased. The accused person 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 prosecution stated in details all facts of the case. Page 1 of 26 Briefly, the facts were that, the deceased had a farm located at Kichangani area in Kilosa Mpepo within Mngeta ward. The farm was for paddy/rice and had allegedly four laborers. Ernest Lucas Mbena and Godfrey Kadama were said to be among the deceased's laborers living with him in the hut he built in the farm. On 25/07/2023 the deceased wife found the deceased murdered and abandoned in the hut. According to the wife, the body lied in the pool of blood and deceased had multiple cuts wounds on the head. An axe stained with blood was left in the door to the hut. Further facts were that the accused person and one person by the name Godfrey Kadama (who is at large) allegedly living with the deceased in the hut at the farm were not there. The matter was reported to police and investigations were mounted. Being reported as the last persons to be seen with the deceased, the accused person was arrested, interrogated and admitted to cause the death together with Godfrey Kadama allegedly for deceased's failure to pay them Tshs.70,000/- each for work done and instead paid them only Tshs.20,000/-. This caused the accused person and Godfrey Kadama to get angry planned and eventually killed the deceased. At the end, the accused person was charged and prosecuted, hence, this judgement after hearing the versions of stories by both sides Page 2 of 26 0 A full trial was then held whereby the Republic called a total of eight witnesses and tendered in evidence two exhibits while the accused person was the sole witness in his defence and had no exhibit to tender. When this case was called on for hearing, the Republic was enjoying the legal services of Mr. Emmanuel Kahigi, learned Senior State Attorney, assisted by Messrs. Dastan William and Simon Mpina, learned State Attorneys. On the other hand, the accused person was enjoying the legal services of Mr. Sikujua Funuki, learned Advocate. To appreciate what transpired during the hearing of trial, I will reproduce here under a brief summary of the evidence from both sides. PWl-DR. MSAFIRI WILLIAM MWENG'EMEKE under oath told the court that on 25/07/2023 he examined the body which was identified by Kanisia Chigumbi,(the wife of deceased)and Justine Mwakasanga (the son of the deceased) to be of late Benson Samwel Mwakasanga@ Kamongo. According to PWl, the deceased's death was caused by haemorrage due to multiple wounds inflicted on the deceased's body by sharp instrument on the fore head and left and middle head. PWl went on explaining that, the deceased's body was found abandoned lying in the pool of blood, and the head had niultiple cut wounds. PWl tendered in evidence the Post Mortem examination Report as exhibit PEl. Page 3 of 26 PW2-F6420 D/Sgt CONSTANTINE police officer under oath testified that, together with PWl went at the scene of crime for examination of the deceased body and expiains that whiie there conducted investigation and recorded witnesses' statements in which he discovered that the iast persons to be seen with the deceased were the accused person and Godfrey Kadama. PW2 insisted that, he didn't see Ernest Lukas Mbena and Godfrey at the scene of crime and that the investigations done ied arrest and eventualiy charged the accused person with murder case he is facing now. However, according to PW2, Godfrey Kadama has not been to date arrested and his whereabouts is yet known. PW3-DE0 METSON MUSYANGI the chairman of Isango viiiage testified under oath that, on 25/07/2023 was informed of the kiliing at his viiiage and immediately informed the polices who came at the scene of crime with the doctor and verified that Benson Samwei Mwakasanga @Kamongo was dead and his death was not natural. DW3 told this court that, after they reached the scene of crime found the deceased's dead body had multiple cut wounds on the head. PW4-CANSIA CHIGUMBI the wife of the deceased. Under oath told the court that, the deceased had four workers who were being paid on daily basis. PW4 mentioned Ernest Mabena and Godfrey to be among the deceased's labours alleging that they were staying in hut in the farm Page 4 of 26 with her late husband. According to PW4, on 25/07/2023 after arriving at the farm as she entered the hut was greatly surprised to see an axe stained with blood in the door of the hut. PW4 went on telling the court that her surprise was even more increased after seeing her husband sleeping in the pool of blood with multiple cut wounds on fore head, side head and on top of the head but the two workers, Ernest Mabena and Godfrey who had been with the deceased the previous day at around 20 hours were not in the hut. Confused by what she has found in the hut, she called the son of the deceased called Justine Mwakasanga and yelled out for help and many people came and the matter was reported to police where other investigative measures continued. PW5-MARGRETH BETRAM KATEULE a food vendor under oath told the court that, on 24/07/2023 at 1900 hours to 22 hours the deceased and accused person along with Godfrey went at her place of business to take dinner. According to PW5, it was the deceased who paid for the food and the trio altogether left her place at 2200 hours. PW5 told this court that she was surprised to hear the death of deceased on 25/07/2023. PW6-ASP JOYCE JOHN KILIMGISHA testified under oath that, on 02/10/2023 was ordered by the OC - CID Kilombero to arrest a culprit named, Ernest Mabena. According to PW5, she prepared other police officers and guided by the informer they drove to the house of Ernest Page 5 of 26 Mabena who was at Msolwa Village. PW6 told this court that they arrested the accused person who was trying to escape them and they took him to Mlimba Police Station and transported him to Ifakara Police Station to answer aiiegations of murder facing him. PW6 explained to the court that they could not interrogate the accused person because they had no detaiis nor fiie of the case. PW7-F5671 D/Sgt GIDEON testified under oath that, on 02/10/2023 at around 21:45 hours under caution interrogated the accused person who confessed to murder Benson Mwakasanga ©Kamongo together with Godfrey Kadama. According to PW7,the reason they kiiled the deceased was because he refused to pay them ail their money after compieting the job, he assigned them to do. PW7 tendered in evidence the cautioned statement of the accused person as exhibit PE2. PW8-HASSAN HUSSEIN LIEGWE, the iabourer of the deceased, testified under affirmation that, on 24/07/2023 after he completed his daiiy activities at 6 pm left the deceased with Ernest Mabena and Godfrey at the farm. PW8 went on teiiing this court that, on 25/07/2023 he was highiy shocked to find his boss dead in hut. PW8 added that neither the accused nor Godwin were found in the hut. PW8 shed tears in pain to Page 6 of 26 show the way he was devastated by the sudden brutal death of the deceased. 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 suffice to call the accused person to enter defence. The court addressed the accused person of his rights, and guided by his advocate, the accused opted to defend himself under oath and that he will have no witness save himself and had no exhibit. DWl-ERNEST LUCAS MABENA under oath told this court that, on 24/07/2023 he met the deceased and agreed to sew 60 bags filled with paddy/rice at the price of Tshs.500/= each. According to DWl, he started the work immediately and at around 16 hours he had finished to sew 60 bags of rice and the deceased paid him Tshs.30,000/= as agreed. PWl went on telling the court that, after being paid his daily wage, he left the farm leaving the deceased with Godfrey, Hassan, Benson and his wife Cansia. DWl totally denied to kill the deceased raising the defence of alibi that he was at his home on the fateful night and he has been there till when he was arrested on 02.10.2023 and charged with this offence. Page 7 of 26 As to the cautioned statement DWl told the court that same was procured by torture and denied its contents. DWl in the circumstances of this case urged this court to acquit him and set him free. This marked the end of hearing of the case. The learned counsel for parties prayed for leave to file final written submissions in support of their respective positions. I granted the leave and ordered them to file on or before 19/09/2024.1 am grateful to the legal trained minds for parties for timely complying within a limited time to file their final closing submissions. The authorities cited on the submissions and clarification of the facts made are highly appreciated. In addressing the court in final dosing submissions, the Republic speaking through Mr. Emmanuel Kahigi, learned Senior State Attorney contended that the circumstantial evidence relied by the prosecution was that the accused person was the last person to be seen with the deceased. Mr. Kahigi drew the attention of this court to the evidence of PW4, Cansia Mateiini Chigumbi, PW5 Magreth Betram Kateuie and PW8 Hasan Hussein Liegwe and submits that, the accused was the last person to be seen with the deceased while still alive and there is no any reasonable explanation given by the accused. According Mr. Kahigi, this leaves no doubt that the evidence irresistibly connects the accused person to the murder of the deceased. To fortify his argument, he referred this court to the decision Page 8 of 26 in the case of Sikujua Idd v. Republic, Criminal Appeal No. 484 of 2019 and concluded that the deceased was the last person to seen with the deceased and hence they believe he is responsible for the murder of the deceased. Mr. Kahigi insisted that all the prosecution witnesses testified in this court were credible as their testimonies were coherent and thus this court should not have any cogent reason for not believing their testimonies. To add weight on his argument he cited the decision in the case of Goodluck Kyando v. Republic(2006)TLR 363 where it was insisted that every witness must be believed unless there are cogent reason for not believing him. It was, therefore, Mr. Kahigi's further submission that, the defence of alibi raised by the accused person despite of being a blatant lie it had no legal legs to stand since there was no previous notice of alibi issued as required under section 194(4)of the Criminal Procedure Act[Cap. 20 R.E 2022]. In the end, the learned Senior State Attorney believed that the actus reus and mens rea to constitute the offence of murder under section 196 of the Penal Code [Cap 16 R.E 2022] were properly established by the prosecution evidence. Page 9 of 26 In response, Mr. Funuki, joined hands with Mr. Kahigi that the case against the accused person is based on circumstantial evidence. He reminded this court on the underlined principle in criminal case that when the evidence is based purely on circumstantial evidence in order for the court to find conviction on such evidence, it must be satisfied that the evidence irresistibly point to the guilt of the accused to the exclusion of any other person. It was his firm submission that there is no strong evidence that in one way or another connects the accused with the death of Benson Samwel Mwakasanga @ Kamongo. Mr. Funuki was of the view that all prosecution witnesses testified that they found the deceased lying facing down in pool of blood and one axe with stained blood which is said to be used by the accused to commit the offence but the prosecution did not call material witness that is finger print experts who would tell the court that the axe that was found nearby the deceased bears the finger prints of the accused person. The learned defence advocate believed that failure to call finger print experts leave a lot to be desired and cited the case of Aziz Abdallah v. Republic (1991)T.L.R. to support his stance. Mr. Funuki proceeded further that there are no stated reason addressing the court as to why finger prints expert was not called in order to tell the court as to whether the axe that was found nearby the deceased Page 10 of 26 bears the accused's finger prints. Basing on the cited case law he prayed this honorabie court to draw adverse inference against the prosecution case. The learned defence advocate added further that, the evidence of the prosecution is full of contradictions. Mr. Funuki pointed out that there are contradictions on the time and place where the accused person was lasti seen with the deceased. The learned counsel drew the attention of this court on evidence of PW4, PW5 and PW8 and stated that, PW4 testified that on 24^*^ day of July 2023 she spent ail the day at shamba with her husband, the accused person and somebody Godfrey that and that she went at home at about 20 hours. This piece of evidence argues that, PW4 went further telling this court that her husband (deceased) was at shamba together with the accused person and one person called Godfrey. Mr. Funuki complained that the testimony contradicts with the evidence of PW5 who testified that on 24^*^ day of July 2023 around 19 hours the deceased and two people, the accused inclusive, were at her business place far away from the place where PW4 is said to be with the deceased and the accused person where she managed to sell them dinner. And PW8's evidence that on 24^^ day of July, 2023 he left from shamba to home at about 16.00 pm while PW4 was not among the people who were at shamba on that day. Fie concluded that the question that he Page 11 of 26 prays this honorable court to ask is who is speaking the truth between the PW4, PW5 and PW8? Pointing further the contradictions on the prosecution evidence, Mr. Funuki submits that, PW7 told this court that the accused killed Benson Samweli Mwakasanga because he owed him Tanzania Shilling Fifty Thousand (Tshs.50, 000/=) while the evidence of PW4, the deceased's wife was categorical that the accused person had already paid money worked for that day to the accused person and there was no conflict between the two that could drive the accused person to commit the offence charged. Funuki was of the view that, the evidence of PW4, the deceased's wife tally with the evidence of DWl the accused who defended himself that he had no claim against the deceased. As regards to the caution statement. Mr. Funuki stated that the same was repudiated and argues that the caution statement can form basis of conviction but in practice it needs corroboration unless the court is satisfied that it contains the truth. This was stated in the case of Flano Alphonce Masalu alias Singu vs. Republic, Criminal Appeal No. 366 of 2018(2020) CA No. 197 (Tanzlii). The learned defence advocate contended that, in the case at hand, the caution statement was admitted after the court had conducted trial within trial and he maintained that since the statement was repudiated. Page 12 of 26 corroboration was needed. He believed that the prosecution has not managed to corroborate the caution statement as there is no concrete evidence confirming and strengthening the confession and he prayed this court to acquit the accused person basing on the reason that the prosecution has not proved the case beyond reasonable doubt. Having heard the evidence and the closing submissions from both sides, the remaining and important question to be determined by this court is whether the prosecution has managed to prove the case against the accused person beyond reasonable doubt. The offence of murder against which the accused person herein is charged is a creature of sections 196 of the penal Code,[Cap 16 R.E 2022] The section provides that; "Any person who^ with malice aforethought, causes the death of another person by unlawful act or omission is guiity ofmurder." Therefore, to establish the offence of murder, the prosecution evidence must prove the foilowing eiements: that the person died, the death was a result of an unlawful act as opposed to natural death, that the accused persons were responsible for the murder; and that the accused persons had evil intent before executing the act of murder. And Page 13 of 26 of importance that the in this case the accused person was the last person to be seen with the deceased person. Having heard the evidence by both sides, I have noted that there are some facts in this case which are not in dispute. The undisputed facts will assist this court in determining this case. These are: One, it is not in dispute that the deceased Benson Samwel Mwakasanga was alive on 24/07/2023 and his body was found dead on 25/07/2023 at Kichangani area; and two, it is not in dispute the deceased did not die a natural death but due to excessive bleeding from multiple cut wounds on head. Both the post mortem report (exhibit PEl) and oral accounts of PWl, PW2, PW3, PW4, PW5 and PW6 confirm that Benson Samwel Mwakasanga died and his life was terminated by unnatural death. Having considered the evidence on record I have noted that a serious dispute between parties in this case, are on two issues; One, whether the accused person was the last person to be seen with the deceased and has offered no plausible explanation and thus the murderer of the deceased, and two, is whether the accused person killed the deceased with malice aforethought. Staring with the first issue, the prosecution pointed fingers to the accused to be the perpetrator because he was the last person to be seen with the deceased alive. In short, the prosecution evidence is based on the Page 14 of 26 doctrine of last person to be seen with the deceased. Basing on the aforesaid reason above, the law would presume the accused person to be the killer unless he offers a plausible explanation to the contrary. In Amani Rabi Kalinga v. Republic (Criminal Appeal No. 474 of 2019) [2022] TZCA 633(18 October 2022)the Court of Appeal dealing with the same situation cited with approval Its decision In the case of Mathayo Mwaiimu and Another v. R, Criminal Appeal No. 147 of 2008 (unreported) where It categorically stated that: - "...where a person is alleged to have been the last to be seen with the deceased. In the absence of the plausible examination to explain away the circumstances leading to the death, he/she will be presumed to be the killer." Having gone through the entire proceedings and the evidence on record by both sides, I am not convinced to believe the evidence for the prosecution on this point because It does not Irresistibly point the accused person as the last person to be seen with the deceased. I will adduce reasons which has prompted me to reach the above findings; One, I admit on the existence of contradictions on the prosecution's evidence. The law Is settled that where there are Inconslstences on evidence, the court's duty Is to consider them and determine whether they Page 15 of 26 are minor not affecting the prosecution case or they go to the root of the matter. That was said by the Court in the case of Mohamed Said Matula Vs. R [1995] TLR at page 3 in the foilowing words: ^^where the testimony by witnesses contain Inconsistencies and contradictions^ the court hasa duty to address the Inconsistenciesand try to resolve them where possible, else the court has to decide whether the Inconsistencies and contradictions are only minor or whether they go to the root ofthe matter" Starting with contradictions of evidence on PW7 and PW4. Mr. Funuki toid this court that PW7 testified that the accused killed Benson Samweli Mwakasanga because he owed him Tanzania Shilling Fifty Thousand (Tshs.50, 000/=) while in her testimony, PW4, the deceased's wife, told this honorable court that the accused had already paid money to his labourers and there was no conflict between the two that could drive the accused to commit the offence. The accused on his defence denied participation in murder. He corroborated the evidence of PW4 that he had no any grudges against the deceased and was already paid his money thus no reason could drive him to commit the offence. Page 16 of 26 With respect, the contradictions are not trifling discrepancies, they corrode the basic evidence of the prosecution, they break the chain of circumstantial evidence that point to the accused as the person who might have a reason to kill the deceased. They create a gap in the circumstantial evidence regarding the accused ill intention and the murder of the deceased. As a hypothesis, someone else other than the appellant may have been responsible for the deceased's death. Mr. Funuki stated also that the prosecution witness, specifically PW4 and PW5 contradicted themselves regarding as to the place and the time when the deceased was seen with the accused person and the deceased. He said that PW4 alleged to have left the deceased with the accused person and Godwin at the farm at around 20 hours while PW5 alleged that at around 1900 hours on the same day the deceased together with the accused and Godfrey were at his place of business taking dinner. The above contradictions go to the root of the matter. It breaks the chain of circumstantial evidence that point to the accused person as the last person to be seen with the deceased. The contradictions create doubts as to whether the person who were left with the deceased at the farm by PW4 were the same person who went to PW5's place to eat food. The noted contradictions create a gap in the circumstantial evidence regarding the person who were with the deceased at the farm and the Page 17 of 26 person who were seen with the deceased at the business place of PW5 who stayed at the place up to 22 hours. It Is unsafe to link the accused with the person who were seen with the deceased at PW5's place and conclude that he was the last person to be seen with the deceased In absence of cogent proof. There are so many loose ends for circumstantial evidence to point accusing finger to the appellant. Two, unexplained long delay In arresting the accused person. The record shows that the Incident occurred on 24/07/2023 and the accused was arrested on 02/10/2023. There Is no evidence that for all the time (three (3) months), the accused had fled to an unknown location In order to defeat efforts of arrest. There Is no prosecution evidence pointing to the reason or reasons why the accused was not arrested as soon as the report was made to them on 24/07/2023 or at least soon thereafter. I am of the firm view, In the circumstances, that If the accused person truly murdered the accused In brutal manner as alleged. It Is unlikely that there would be a delayed arrest of such a "dangerous" criminal conduct. Unexplained delay In arresting the suspect leads doubts In the credibility of the prosecution evidence. Three, conduct of the accused after the Incidence. The record shows that the accused was arrested on 02/10/2023 In his house. Since there no evidence that the accused fled from a place to avoid arrest or Page 18 of 26 trial. This piece of evidence draws a negative inference on the prosecution evidence that he committed the offence. Four, the caution statement is flawed. The caution statement does not support the date of incidence indicated in the charge sheet. The charge sheet alleges that, the offence was committed on 24/07/2025 while the caution statement indicates that the offence was committed on 25/07/2023. The variation attributes difficulties in ascertaining the correct date of incidence between the two dates. The prosecution was mandated to lead the evidence in support of the charge or to amend the charge to tally with the evidence. In the case of Abel Masikiti Vs R [2015] T.LR. 21 which was referred in Emmanuel Kabelele Vs R, the Court was faced with an akin situation, the Court stated: "J/7 a number ofcasesin the past this Court has heid thatit is incumbent upon the Repuhiic to iead evidence showing that the offence was committed on the date aiieged in the charge sheet which the accused was expectedandrequired to answer. If there is any variance or uncertainty in the dates,then the charge musthe amendedin termsofsection 234ofthe CPA.Ifthisis notdone,the preferred charge wiii Page 19 of 26 remain unproved and the accused shall be entitled to an acquittal. Short ofthatfailure ofjustice will occur." Guided by the above authority, since the charge was not amended and the evidence on record contradicts on the correct date of incidence it goes without saying that that, the purported charge against the accused was not proved. Five, in the same way,the truth of the confession is also in question. This is noted from the type of the question that was posed to the accused. PW7 asked the accused person leading questions. This cast doubts on the truth of the confession made before PW7. For purpose of clarity, I wish to reproduce some of the questions and answers that was posed and responded respectively; SwaH.Je ERENESTLUKAS unamfahamu BENSON SAMWELI MWAKASANGA? JIbu. Ndio ninamfahamu kwani yeye allkuwa bosi wangu wa shambani huko MLIMBA (W) KILOMBERO.Swall.Je huyo BENSONSAMWELIallkupa kazi gam na wewe uHkuwa na nani? JIbu. Huyo BENSON SAMWELIaUtupa kibarua cha kuplga mpunga na kushona magunia ambapo miml nlllpewa kibarua cha kushona na mwenzangu altwaye GODFREY allpewa kazI ya kuplga Page 20 of 26 mpunga. Swali. Je kwa kazi hizo mlikubaliana vipi? Jibu. Tulikubaliana kUa gunia moja kupiga na kushona nishHingi mia tano 500 na sisi tukawa tumepiga magunia sabin!70. SwaH. Je baada ya kupiga huo mpunga miiiipwa fedha zenu?Jibu. Tuiiiipwa fedha shiiingi eifu Ishirini tu baadaia ya eifu Sabini 70 ambayo ndio iiikuwa makubaiiano yetu. Swaii. Baada ya ninyikuiipwa fedha pungufu miiamua nini? Jibu - Baada ya sisi kuiipwa fedha hizo pungufu tuiipata hasira tukapanga kumuua BENSON SAMWELI kwa kutuzuiumufedha yetu.Swaii-Je mipango hiyo ya kumuua BENSON miiipangia wapi? Jibu - hiyo mipango tuiiipanga tarehe siku va tarehe 25707/2023 saa 23: 00 MRS mara baada ya kutudhuiumu hiyofedha yetu na iiikuwa majira ya saa sita usiku.Swaii-Je miimuua kwa kutumia siiaha gani? Jibu - sisi tuiimuua kwa kutumia shoka ambapo mimi niiimkata mara moja kichwani na GODFREY aiimkata mara moja kichwani na wote tuiitumia shoka hiio hiio tuiipokezana. Swaii-Je huyo BENSON SAMWELImiimpata wapi mpaka mkamkata kwa shoka?Jibu - Ni kwamba sisi tuiikuwa tunaiaia nyumba moja na huyo BENSON SAMWEL hivyo tuiimvizia usiku mkubwa wa saa sita ndio tukamkata Page 21 of 26 kwa shoka. SwaH - Inasemekana siku ya tukio wewe na GODFREY mlikuwa mnakunywa pombe, je pombe hizo aUwanunuHa BENSON SAMWELI? Jibu - Hapana siku ya tukio sis hatukunywa pombe kabisa iia majira ya saa mbiii usiku tuiienda katika Mgahawa wa mama MNGONIambapo tuiikuwa hapo mgahawani mimi, GODFREY na BENSON pamona na mama MNGONI na baada ya kumaiiza kuia marehemu BENSON SAMWELIaiituiipia chakuia kwa kuwa tunamdai kisha mimi na GODFREY tuiitanguiia kwenda kuiaia nyumbani kwa marehemu BENSON SAMWELI na majira ya saa nne usiku ndio BENSON and aiikuja kuiaia. Swaii-Inasemekana nyinyimiitumwa kumuua BENSON,je miitumwa na nani?Jibu-Hapana sis hatukutumwa na mtu kumuua BENSON SAMWWELI. Swaii - Je mara baada ya kumuua BENSON miienda wapi na na kwa usafiri gani? (Emphasis mine). From the above excerpts it is doubted that, PW7 was receiving the story about the murder of the deceased for the first time when he was recording the caution statement of DWl. From the questions he posed to the accused it is very clear that PW7 had the prior knowledge of the incidence. I find doubts if what he recorded on the caution statement Page 22 of 26 were truly said by the accused person due to the prior knowledge of incidences attributed to him since from the prior knowledge, he may be able to write about the incident and told the accused to sign. In essence the caution statement in this case has not satisfied all the requirements of law to be used against the accused. In my view, it was a manufactured one though admitted same is of no evidential value. Six, the accused person properly raised the defense of alibi. In this case the accused person relied on the defence of alibi which he had notified the prosecution before the commencement of the hearing during preliminary hearing. The alibi was with particulars that, he was at his home at Msolwa village in Mlimba on the material day, then proceeded to discredit the prosecution evidence that it was lies. With this alibi with particulars, in my considered opinion, the accused was at home and dry with the requirement of law under section 194(4) of the CPA. It was upon the prosecution to prove that on the material date the accused person was somewhere else in opposition to his allegation. The prosecution has miserably failed to disapprove the accused's assertion that he was at Msolwa village in Mlimba on the material dated due to the contradictions observed on the prosecution evidence. PW4 alleged to have left the accused person with the deceased at the farm around 20.00 hours while PW5 alleged that the accused person, the deceased together with Godfrey Page 23 of 26 were at his place of business at around 1900 hours on the same day eating food. This create doubts as to whether the person left at the farm were the same person went to PW5's place. The prosecution has failed to prove the whereabouts of the accused after he finished the work beyond reasonable doubt. It cannot be said that, he was at the scene of crime In absence of cogent proof from the prosecution. It follows that the accused defence of alibi was not disapproved. The law Is settled that the accused has no obligation to prove his defence of alibi. The Court of Appeal facing a kin situation to the case at hand In the case of Shafii Abdallahaman Mbonja, Criminal Appeal No. 104 of 2017 It quoted with approval the decision In the Court of Appeal of Kenya In Jane Wanjiru v. R [2006] eKLR where It was stated thus: "Once again, the learned Judge clearly appreciated that once the appellant had raised the defence of alibi, the evidential burden shifted back to the prosecution to prove and beyond reasonable doubtthat the appellant's alibi was false. We would repeatand we shallcontinue to assert that there Is no burden upon the accused person who raises the defence ofan alibi to prove the truth ofthat defence. Page 24 of 26 Seven,the prosecution evidence cioseiy scrutinized as a whoie is fuii of loose ends and contradictions that are to be resolved in favour of the accused person. The above shortfalls lead to my considered position that the prosecution failed to prove the offence of murder in respect of the accused person. For what I have endeavored to discuss above I find no need to deal with the second issue and therefore, I hold that the prosecution failed to meet the standard of proof required in criminal cases under sections 3(2)(a), 110 and 111 of the Evidence Act. I find the accused person, Ernest Lucas Mabena not guilty of the offence of murder he stands charged under sections 196 and 197 of the Penal Code, Cap. 16 R.E. 2019. Consequently, I acquit him from the charge of murder laid against him before this Court. It is so ordered. DATED at MORDiBORO this 24^^ day of September 2024 c b C -2: s.m: maqok^a JUDGE 24/09/2024 Page 25 of 26 COURT:Judgement delivered at Ifakara In the presence of Mr. Emmanuel Kahigi, learned Senior State Attorney assisted by Messrs. Dastan William and Simon Mplna, learned State Attorneys for the Republic and in the presence of the accused person and his advocates, Mr. SIkujua FunukI, learned ad vocal 0^ M JUDGE 24/09/2024 COURT: Rl^^of^^^l^ully explain ^ ^ ^a \ -r-y \ -A- te<L >.01 / ./c |J^ ■/t^u IiIb OflGA JUDGE 24/09/2024 Page 26 of 26