Magabe Nanungu Magabe

IN THE HIGH COURT OF TANZANIA MUSOMA SUB-REGISTRY AT TARIME CRIMINAL SESSIONS CASE NO. 000038046 OF 2023 REFERENCE NUMBER 20231124000038046 REPUBLIC VERSUS MAGABE NYANUNGU MAGABE JUDGMENT 24“l&28'1'February, 2025 M. L. KOMBA. J,: PW1 return home late like 21:00 hours from his daily working and found his mother, Anna Marwa Issaya prepared a food. He did not eat and decided to go to his room to sleep. After sometime he heard sound like the gate was pushed, he wake up, went outside where there was electricity light to see what was wrong as it was not normal, he found nobody and decided to go in his bedroom thinking it was dog. After sometime he hears sound in roof and foot roar on the ground inside their fence. He went outside his room for the second time found nothing, after like 15 minutes Page 1 of 15 he heard sounds of people quarreling, when listen careful he confirms the sound were from the house of his mother. That house was within the fence. Among words he managed to hear is "toka ndani mwangu sikutaki". It was his testimony that those people quarreled for a long time and he decided to wake up, he gets out and went to his mother's house, he knocked the door and his mother opened the door. PW1 was outside closer to the door and managed to see Magabe sitting on the chair on his mother's siting room. PW1 informed this court that he know that man was Magabe whom he recognize him as his father (baba wakambo). He knows him since the year 2015 when he found him in his mother's house and was told that when he saw a man with kanga from his mother room he has to know that he is his father. That man whom was told his baba wakambo was in his mother's house on the fateful night. When he confirm it was that man, he did not interfere them and decided to go back to his room. It was his testimony that he continues to hear the sounds which suggests misunderstanding between Magabe and his mother till when he falls a.sleep. Then he heard a sound calling him, he was told Chacha hurry up your mother is attacked. He went to the house of his mother, at the door and find the door was locked, he used force to open it and saw Magabe Page 2 of 15 removing knife from the chest of his mother and went out of the sitting room. He followed him and saw he went out of the house before he was called by his mother for the help. PW1 went inside to assist his mother who was laying on the floor. When went closer to his mother, he found blood from her chest and had many wounds. He makes an alarm (yowe) and people responded including his baba wadogo. He then decided to go and look for transport (motorcycle) when he arrived at home with a motorcycle, the driver informed him that his mother is already died. They called police who took the body to mortuary. That was 02/7/2023. From that narration prosecution held Magabe responsible for murder and charge him under section 196 of the Penal Code, Cap 16 R.E 2022. Magabe who is the accused in this case, pleaded not guilty to the offence charged. In proving the offence against the accused, prosecution team was led by Ms. Damari Nyange assisted by Mr. Davis Katesigwa, both State Attorney while Tumaini Kigombe was defence counsel. PW1 was cross examined and he clarified that Magabe Nyanungu, accused in this case had love relationship with his mother since from 2015 and he respected Magabe as his father. When further in cross examination he said accused had no child with his mother, the last-born child in their womb was Page 3 of 15 born 13 years ago. He confirmed that before he found accused stab his mother, the two argued for a long time, like three times they quarrel on the same night and there were abusive words between his mother and accused though he did not know who started. Explaining how he knows accused, he testified that accused used to visit their home frequently. About the injury which his mother sustained, PW1 said he only witnessed one and which was the last blow on his mothers' chest. After he stab his mother, accused did not say anything, he just run away. In further examination by State Attorney, this witness testified that when he heard argument between the two, he heard his mother telling accused to go outside as she was not in need of him. And accused was saying some words too denying that status. After the feet, he said, he noted there was another man in the house that night who was close to his mother and used to visit their home at night. This is what was testified by Chacha Marwa Issaya, deceased son who was paraded as PW1. The crime was investigated by E 7050 Sgt Mohamed who testified as PW2. In his duties he noted accused was not arrested and testified there was Page 4 of 15 another man in the fateful day whom assisted investigator to draw the sketch map when he visited the scene on 5/7/2023 which was admitted as exhibit Pl. He elaborated that the crime occurred inside the deceased house, in the sitting room and the compound is fenced. After drawing a map, he organized doctor for examination of the body which was at Sirari Health center mortuary. He got the court order and the doctor. After examination of the body, doctor informed relatives what was the finding and fill in postmortem report which was handed to this witness. As he noted accused was not arrested, he went to the house of accused at Nyamchocho village but accused was not there. Police went to some other areas including Nyamongo but they did not find till on 13/7/2023 when this witness was informed by informer that accused was seen in Serengeti- Mugumu. On 16/7/2023 this witness went to Mugumu center in Serengeti under assistance of informer they arrest accused at Machwechwe street to his relative. In the cause of investigation he noted it was accused herein who murdered the deceased. When cross examined, he testified that he noted deceased had love affairs with accused and there was another man who was visiting the deceased. Page 5 of 15 Investigation revealed there was abusive language between accused and deceased before the crime. As testified by investigator, the body of deceased was examined by doctor Masiaga Joseph Chacha from Tarime District hospital who was paraded as PW3. He testified that he conducted examination of the body of deceased Anna Marwa Issaya prior to examination the body was identified by relatives. PW3 conduct clinical observation which do not involve operation. He testified that the body had wounds and big wound on chest. All wounds were caused by a sharp object which had a sharp point. He clarified that wound at the chest was big, open and was bleeding. Explaining how open the chest wound was, he said, the hole at the chest allow him to see the heart. As per his observation cause of death was severe bleeding in short time. He filled postmortem examination report which was admitted as Exhibit P2. Upon this court rule that the accused has a case to answer, the accused enter his defence under oath and he was the only defence witness DW1 (Magabe Nyanungu Magabe). Who had short testimony that before his arrest he was a farmer in Nyabitocho village within Tarime district where he was living. It was his testimony that on 2/7/2023 he was at his house Page 6 of 15 together with his family (wife and 6 children). He informed this court that he was arrested 15/7/2023 while in Serengeti in Nsense village. He denied to kill anybody. When cross examined about Anna Issaya, he testified that she was his lover in past years but it ended. He confesses he did not participate in mourning of Anna Issaya while maintaining that form 01/7/2023 up to 14/7/2023 he was at his home; he did not hide. When asked how he fill about the death of deceased he said he don't miss Anna, he don't feel sorry. I have accorded a deserving attention the evidence adduced by parties. On the first place, it is imperative to note that there is no dispute that there is person who died and was buried. It is the position of this court that Anna Marwa Issaya died and her death was unnatural as she had a deep cut wound on the chest and other wounds in other parts of the body. Deceased had open, deep cut wound which exposed some internal parts and per PW3 and Exhibit P2. The essential issue therefore for determination is whether, it is the accused Magabe who cut the deceased and he did that with malice aforethought. Page 7 of 15 In determining the fate of the accused person before this court, the prosecution must prove beyond reasonable doubt that, indeed, it is accused person who murdered the deceased contrary to sections 196 of the Penal Code, Cap 16. In proving the charge flattened against the accused, prosecution trusted one witness who was an eye witness. According to section 143 of the Evidence Act, Cap 6 R. E. 2019 and the case of Yohana Msigwa vs Republic (1990) TLR 148, there is no particular number of witnesses is required to prove a particular fact. In the cause of composing judgement, I will also consider the evidence of other witnesses adduced before this court. PW1 testified that it was night when he heard his mother arguing with another person, as argument persist, he wake up and went to the house of his mother, he saw accused sitting on the chair, noting that he was baba wakambo, he did not react and went back to his room, after a while he fall asleep. He was wakened by a call which informed him her mother was attacked. He went straight to the house of her mother, he breaks the door and saw accused removing knife from the chest of her mother, then Page 8 of 15 accused went out of the siting room and disappeared. His mother asked for the help but she died before she was taken to hospital. From that testimony. The crime was committed at night and the prosecution had eye witness who mentioned accused that he saw him with his mother and found him removing knife f^om the chest of his mother, who then died in friction of minutes even before taken to hospital. Before this court rule out that accused was identified, I find importance of testing if the identification which was done at night was watertight. I shall rely on the principle of identification as pronounced in the landmark case of Waziri Amani vs Republic [1980] TLR 250 in which the Court of Appeal held that; "The evidence of visual identification is of the weakest and most unreliable. It follows, therefore, that no courts should act on evidence of visual identification unless all possibilities of mistaken identity are eliminated and the court is fully satisfied that the evidence before it is watertight". See also Aus Mzee Hassan vs Republic, Criminal Appeal No. 17 of 2020 Page 9 of 15 In the cited precedents, the Court of Appeal insisted that, when the court is satisfied that there was no mistake of identity then the court can convict the accused trusting the identification of the accused person. In the case at hand, the crime took place at night, it was after 21:00 hours when PW1 was sleeping. He hears sounds of people in his mother's house and decided to go to mothers' house. He describes the distance was 5 footsteps from his room to his mother's house. The house uses TANESCO electricity and had bright bulb inside the house and outside. He testified that when her mother opened the door PW1 managed to saw Magabe, accused sit on a chair at the siting room. At the sitting room lights were bright he was standing at the door side. Noting it was a man whom he know he said he did not react. For the second time he testified that when he was wakened that his mother was attacked, he went to the house and that time the door was closed, he break it and found accused removing knife from the chest while the lights was on. He was like three footsteps away from where his mother and accused was. Although accused went out, PW1 managed to see him as walk out and actually he followed the accused before PW1 mother called him for help. He managed to saw accused. However, accused was familia Page 10 of 15 to witness who said he know accused since year 2015 and when he found him in his mother's house on the fateful day he did not worry. What witness did at the scene was recognition of accused. The Court in Mussa Saguda vs The Republic, Criminal Appeal No. 440 of 2017 where the accused was known to witness it clarified that the case is fit for recognition that identification. See also Nicholaus Jame Urio vs The Republic, Criminal Appeal No. 244 of 2010. In the case at hand witness testified that he knows accused as his baba wa kambo and therefore he recognized him on that day. It was the holding in Philimon Jumanne Agala @ J4 vs The Republic, Criminal Appeal No. 187 of 2015 that all four ingredients which constitute the offence of murder must be proved by prosecution. (i) There is the death of a person, (ii) The said death was caused by unlawful act or omission, (iii) It is the accused who caused the death of deceased, and (iv) The accused acted with malice aforethought. In the case at hand there is a person, Anna Issaya who is died and her death was unnatural as she was found with multiple stab wound on her Page 11 of 15 chest as was recorded in exhibit Pl whereby she died few minutes later. Basing on testimony available in court, the accused is associated with the death as was seen by an eye witness. In order for the offence of murder to be proved there must be malice on side of accused. This court has to analyse if there was malice, guilty mind. The land mark case on this area is Enock Kipela vs Republic, Criminal Appeal No. 150 of 1994 where the criterion to prove malice aforethought was listed. In the present case the deceased had a big open wound on her chest and accused used a knife. Nature of the wound suggested it was a single heavy blow. However, the Court in the precedent of Enock Kipela vs Republic (supra), after listing the conditions at page 6 of the judgment, it went further and placed two important clauses in the judgment: first, at page 5 of the judgment, it stated that that each case must be decided on its own peculiar facts; and second, at page 6 of the judgment that in totality of the evidence on record, there must be no room for more than one view as to the accused's intent (malice aforethought). Finally, the Court had resolved that: if there is doubt on the intention (malice aforethought) ofthe accused, the doubt is to be resolved in favor ofthe accused. Page 12 of 15 PW1 testified that he heard sounds of people quarreling, sound was from his mothers' house which was within the fence where his room is located. He confirmed that before he found accused stab his mother, the two argued for a long time, they quarrel like three times on the same night and the two exchange abusive words (his mother and accused) though he confirmed he did not know who started to abuse the other. Further, PW1 testified that at first he found accused seated on chair at the sitting room of his mother but on the second time when he opened the door, he found him removing knife from the chest of his mother. It has to be remembered that the two had love affairs for long time (since 2015), though that alone is not a shield in commission of the crime, the two had a long conversation and quarrel that night. This court is of the assessment that if the intention of visitation of accused to deceased house was to kill her, it would not take long as they were only two at the siting room. But the two spend time in arguing till when accused commit the said crime. The crime was precipitated by a long argument. The law as always been that, where there is evidence of a fight it is not safe to infer malice aforethought, unless there are very exceptional circumstances. There is a bunch of precedents of our superior court on the Page 13 of 15 subject (see: Stanley Anthony Mrema vs Republic, Criminal Appeal No. 180 of 2005; Jacob Asegelile Kakune vs Republic, Criminal Appeal No. 178 of 2017; Aloyce Kitosi vs Republic, Criminal Appeal No. 284 of 2009; Stanley Anthony Mrema vs Republic, Criminal Appeal No. 180 of 2005; and Moses Mungasiani Laizer @ Chichi vs Republic [1994] TLR 222). This court has been following the move without any reservations (see: Republic vs Chacha Mwita Mohere, Criminal Session Case No. 141 of 2022, Oracha Dismas Auma vs Republic, Criminal Sessions Case No. 27 of 2023 and Republic vs Samwel Saulo @ Ikula, Criminal Session Case No. 58 of 2016. According to the Court of Appeal, where death occurs as a result of a fight, this court may convict accused for a lesser offence of manslaughter, not murder (see: Jacob Asegelile Kakune vs Republic (Supra); Aloyce Kitosi vs Republic(Supra); Stanley Anthony Mrema vs Republic (Supra); And Moses Mungasiani Laizer @ Chichi vs Republic (Supra). In the case at hand there is no proof that the two fight, however the time spend in argument suggests accused had no malice. In the circumstances of the present case, this court is satisfied that the prosecution had failed to prove malice aforethought as per required Page 14 of 15 standard and practice placed in the precedent of Enock Kipela vs Republic (supra). I am therefore moved to hold that the accused had killed the deceased without malice aforethought. In the end, I convict the accused with a lesser offence of manslaughter contrary to section 195 of The law enacted in section 198 of the Penal Code provides for a sentence up to life imprisonment. This court has considered the aggravation and mitigation factors as submitted by both State Attorney and defence council and resolved that killing of this nature where the dangerous weapon (knife) is used attracts ten (10) years imprisonment squarely to the Tanzania Sentencing Guidelines of 2023, which place this kind of killing at high level. Having said so and noting the accused has spent one (1) year in custody, I hereby sentence the accused person to nine (9) years imprisonment from the date of this order. M. L. Komba Judge 28th February, 2025 Page 15 of 15