Hura Matinde Mwita

IN THE HIGH COURT OF TANZANIA MUSOMA SUB-REGISTRY ATTARIME CRIMINAL SESSIONS CASE NO. 42 OF 2023 REFERENCE NUMBER 20230705000509501 REPUBLIC VERSUS HURA MATINDE MWITA @ KERANG’ANYI JUDGMENT 20th & 26th February, 2025 M. L. KOMBA, J.: The deceased in this case, Chacha Nyamhanga Magendo was injured on 22/5/2019 after being assaulted by a group of three people. He was taken to the nearby dispensary which after few days he was referred to Tarime District hospital and the district hospital referred the victim by then to Bugando Hospital in Mwanza for further treatment. On 29/6/2019 Chacha Nyamhanga Magendo was discharged from Bugando hospital and died the following day. Following the death, prosecution held the three people including the above named accused to be responsible for the death of Page 1 of 23 deceased. When two persons were charged, the accused in this case was at large. On 20/5/2022 accused was arrested and arraigned before this court to face the charge of murder contrary to section 196 of the Penal Code, Cap 16 [R.E 2022]. It has been alleged by the prosecution that on the 22nd day of May, 2019 at Genkuru village in Mara region, Hura Matinde Mwita @ Keranganyi murdered Chacha Nyamhanga Magendo. The accused person pleaded not guilty to the charge, thus compelling prosecution to summon a total of five witnesses in discharge of their novel task of proving the case beyond reasonable doubt. For the prosecution, Mr. Lusako Mwaiseke and Mr. Devis Katesigwa both State Attorneys, took active role as far as the Republic's affairs are concerned, whereas Mr. Baraka Makowe and Mr. Samson Sarno played a vital role for defense. From prosecution there was Ryoba Nyamhanga Magendo (PW1) who is eye witness. He informed this court that on 22/5/2019 he went to the farm which is located in Msege (previous known as Genkuru) together with his brother Chacha Nyamhanga Magendo (deceased), Nchagwa Chacha Page 2 of 23 Nyamhanga and two children. When they arrived at the farm, he was cutting brunches of trees while others were collecting unwanted branches and dry grasses (farm clearance). Abruptly he said they saw people attacking him and his follows, it was Matinde Mwita Kerang'anyi, Mwita Matinde and Hura Matinde. Those attackers had kombeo, (a rope made to hold stone and attack). They throw kombeo and hit deceased on his chest who falls down. Then Hura Matinde and Matinde Mwita started to attack deceased by cutting him three times on head, stabbed with an arrow on left rib by Matinde Mwita while Mwita Matinde cut Magendo the toe. In the said attack, witness testified that even wife of deceased was injured on her left shoulder when she wanted to rescue her husband. Attackers big machete size 18. Following that brutal action by attackers, PW1 run and hide few meter away and when Hura and others left, PW1 returned at the scene and found Chacha Nyamhanga Magendo down, he could not stand neither sit. He said he called motorcycle and took Magendo to police Nyamwaga for PF3 and latter to Mliba dispensary where they were referred to Tarime District Hospital. Due to nature of wounds, he said they get referral letter to Bugando Hospital Mwanza where deceased received treatment till Page 3 of 23 29/6/2019 when Magendo was discharged. He testified that he travels with Magendo to their village and in the same day he died. The following day his body was examined as revealed in exhibit Pl and was buried. He informed this court that he knows Hura Matinde since he was born, they are neighbours. When cross examined, he clarified that there was no land conflict as the existing one was solved and they were in the preparation of farm. About hiding while deceased was attacked, he clarified that he hides when he saw serious attack but was able to see the scene. Explaining the distance, he said Nchagwa was closer to her deceased husband then him (PW1) who was 10 footsteps away. He further clarified that during attack they were three and two of attackers were in prison. He insisted that Hura Matinde run away that's why he was not charged with other two and it was Hura who cut deceased on head. Accused herein was arrested by PW2 J 1689 CpI Athuman on 20/5/2022 while at Mwanza bus stop and was taken to Nyamwaga police station to face his charge. The crime was investigated by G 8319 D/Cpl Nchorus (PW3) in the file he noted there was three accused whom among them, two were arrested Page 4 of 23 previous but Hura was arrested on 20/5/2022 while at Mwanza in connection with crime occurred on 22/5/2019. He went on testifying that in his investigation he noted that death occurred on 29/6/2019 and according to Post Mortem form the cause of death was high infection in deceased body which was caused by wounds. It was his finding that accused person in this case is responsible for the death of deceased. In cross examination he testified that he was not at the scene when the crime occurred even when the body was examined but was informed by eye witness. He did not visit the scene instead he used the map which was drawn and was in file. The map was drawn in assistance with an eye witness. Doctor Gonzaga Gerion Ngonyani, (PW4) examined the body of deceased on 30//6/2019 in Genkuru village when accompanied by police. He noted cause of death was wounds caused by a sharp object but wounds had bacterial infection. Elaborating where wounds was, he said the wounds was in front side of head and another was left thigh to the wrist but there was other small wounds. He noted that wounds were of long time though he did not establish exactly time but insisted that the death was caused from Page 5 of 23 the wound. Exhibit Plmwas admitted as postmortem report. This witness clarified that he noted wounds were infected by looking at them and make observation on color and discharge. Wounds had tissue which shows it was infected. When cross examined, he informed this court that wounds if not well treated may cause infection. Clarifying his report, he said cause of death was bacteria found in blood which was accumulated from wounds which was all over the body. Further he testified infection found in blood has its cause as exhibit Pl indicates. Septicemia secondary to or via to mean there is a cause of bacterial in the body and exhibit Pl show deceased had multiple infected cut wound hence contamination. The last prosecution witness was wife of the deceased, Nchagwa Chacha Nyamhanga (PW5) who informed this court that on 22/5/2019 together with her husband and other three people one of them was adult (Ryoba Nyamhanga), went to form for clearing it. While at the farm they were attacked by Matinde Mwita, Mwita Matinde and Hura Matinde. Those people throw stone which hit her husband at the chest and he fall down. Then Matinde Mwita followed him and sit on top of her husband while the Page 6 of 23 latter was struggling and immediately emerge Hura, accused herein. Hura cut her husband three times on head with a big machete, then Matinde Mwita stabbed her husband on thigh with sime. Following that attack she said she make an alarm calling for help and that she was stopped from assisting her husband as she was chopped when trying to do so. It was her testimony that her husband was not able to speak neither to walk after the attack which took like ten (10) minutes. She testified that it was Ryoba Nyamhanga (PW1) who phoned a motorcycle driver who took them to Nyamwaga police station. She said they informed police that were attacked with Matinde Mwita, Mwita Matinde and Hura Matinde whereafter were given PF 3 and the victim by then was taken to Mliba Dispensary. After a week they referred her husband to Tarime District hospital and then was referred him to Bugando Hospital in Mwanza. Her husband was under treatment at Bugando for like one month where he was assisted with Ryoba Nyamhanga and his child all the time. He returned from Bugando on 29/6/2019 and on the same day he died. Police were informed of the death and her husband was buried on 30/6/2019 after police examination. About familiarity with accused she said Page 7 of 23 she know Hura Matinde since he was born, he is their neighbuor and managed to identify Hura in the dock. When cross examination this witness confirms that she records statement in police which defence counsel points contradictions in PW5 testimony while in court and what was recorded in her statement and prayed it to be admitted in evidence. After this court ruling, witness statement of Nchagwa Chacha Nyamhanga which was recorded on 30/6/2019 was admitted as exhibit DI. In further cross examination PW5 clarified that PW1 did not run from the farm, rather they were together and her husband was attacked in her presence. When this court ruled that he had a case to answer to the charge following the closure of the prosecution’s case, accused person testifying as DW1 defended himself by raising the defense of alibi. He stated that he is staying in Mwanza since 20/10/2016 till when he was arrested on 20/5/2022. He denied to be involved in the assault of Chacha Nyamhanga Magendo on account that on the fateful dates he was in Mwanza. However, he testified that he was aware of the dispute between the two family as his Page 8 of 23 mother informed him that there was a fight between the elders (wazee wamepigana) who are Chacha Nyamhanga Magendo and Matinde Mwita Kerang'anyi and was informed further that the cause of the fight was land. When heard of the said fight, he testified he continued with his pet business in Mwanza where he stays with his wife. He prayed that this court discharges him as the accusations against him are not true, they are fabricated due to existence of land dispute. When he was cross examined, he stated that nobody know that he is facing a murder charge and he confirmed he did not give notice of alibi. When further cross examined, he testified that from Mwanza to their village where the crime occurred is six (6) hours by bus and a person may arrive in the same day. He confirmed he did not inform this court if he never visited his relatives in the village since he established his home in Mwanza. He disputed to know Nchagwa but he admitted he knows Ryoba Nyamhanga who testified as PW5. About the testimonies of prosecution witnesses he inform this court he does not have quarrel with investigator not arresting officer. Page 9 of 23 Upon the close of the defense case, the learned counsel for both sides prayed for final submissions. Mr. Makowe defence counsel submitted that, he is aware that defence of alibi need notice and no notice was issued but this court has the duty to analyse evidence. He then prays this court to note contradiction from prosecution case and exhibit DI should discredit PW5 as a witness. It was his further submission that exhibit DI should be compare with evidence of PW1 as there is contradiction between the two evidences without pointing the contradictions. About exhibit Pl which was admitted, counsel was of the view that the same should not be taken for granted and prayed this court to scrutinize it and consider the effect when wound not attended although he did not dispute that Chacha Magendo died, his dispute is on who killed him. He had the issue on existence of two IR We further pray your court to analyse witness Nichoraus who testified there was two IR concerning this offence and testified that IR should never change but in the case at hand there was two different IR. To him, the case by prosecution has illegalities which raise doubts. Page 10 of 23 In reply, Mr. Mwaiseke, State Attorney submitted that they have five witnesses who managed to prove malice of accused as in the case of Enock Kapela vs Republic, Criminal Appeal No. 150 of 1994. He went on submitting further that PW1 and PW5 explained weapons used and wounds caused to deceased, witnesses have explained their action after the injury of the deceased, force used by accused has been displayed in exhibit Pl and also explained by witnesses. About the cause of death, he prayed this court to read section 205 of Penal Code, Cap 16 on time calculated to cause of death. In the case at hand he said it was only 30 days lapse. On analysing the defence of the accused, State Attorney submitted that Section 194 of Criminal Procedure Act, Cap 20 makes it requirement to give notice and when there is eye witness defence of alibi is diminished as was in Beza John vs Republic, criminal Appeal No 488 of 2015 while prayed for the prosecution witnesses to be found credible as in Goodluck Kyando vs Republic, [2003] TLR 36. On existence of two IR number he was of the prayer this court to note that there is difference between court statement and police statements as in Abdalah Rajabu Waziri vs Republic, Criminal Appeal No. 116 of 2004. Page 11 of 23 State Attorney also submitted on contradiction by way of reminder that not all contradiction goes to the root as was Lusunga Duwe vs Republic, Criminal Appeal 76 of 2014 where it was held that only contradiction which affect center of the story has to be considered as in Nkami Wanyo vs Re 199 TLR 49 and Dickson Elia Nsamba Shapwata and Another vs Republic (Criminal Appeal 92 of 2007) [2008] TZCA 17 (30 May 2008). Having summarized the case's evidence and the brief submission by both sides, it is undoubted that the said Chacha Nyamhanga Magendo is dead and that he died of unnatural death as per exhibit Pl and the testimony of PW1. Thus, the vital questions here to be asked in dispose of this case are mainly three 1. Who killed the said Chacha Nyamhanga Magendo? 2. Whether malice aforethought has been established, if the answer to question two is established; 3. Whether the accused person is responsible for the offense of murder he is charged with in respect of the death of Chacha Nyamhanga Magendo. Page 12 of 23 The first issue for determination is who caused the deceased's death. In answering this issue, I need to address my mind to the predominant legal principles which are of relevance to this case and will guide me in the final verdict of this judgment. These cover aspects of criminal law, as well as the law of evidence. These principles are meant to ensure that no innocent person is convicted unless guilty and on proof of evidence beyond reasonable doubt. Legally, it is the prosecution which is placed with a higher responsibility than that of the accused in a proof of criminal charge. The first long- established principle in criminal justice is that on onus of proof in criminal cases, that the accused committed the offence for which he is charged with is always on the side of the prosecution and not on the accused person. It is reflected under Section 110 and Section 112 of the Evidence Act Cap.6 [R.E 2019], and cemented by several cases including the case of Joseph John Makune vs Republic [1986] TLR 44 at page 49, where the Court of Appeal held that: ' The cardinal principle of our criminal law is that the burden is on the prosecution to prove its case; no duty is cast on the accused to prove his innocence. There are a few well-known exceptions to this Page 13 of 23 principle, one example being where the accused raises the defence of insanity in which case he must prove it on the balance of probabilities...' The second principle is that the standard of proof in criminal cases that is required by law is proof beyond a reasonable doubt. The Court of Appeal of Tanzania in the case of Mohamed Haruna@ Mtupeni & Another vs Republic Criminal Appeal No. 25 of 2007 (unreported) held that:- ' Of course in cases of this nature, the burden of proof is always on the prosecution. The standard has always been proof beyond a reasonable doubt. It is trite law that an accused person can only be convicted on the strength of the prosecution case and not on the basis of the weakness ofhis defence/ It means the evidence must be so legally convincing that no reasonable person would ever question the accused's guilt. Prosecution had two eye witness who are PW1 brother of the deceased whom they were together on farm and deceased wife who testified as PW5. While in court, PW5 testimony contradicted with her statement which record previous at police and defence counsel prayed it to be admitted and this court admitted PW5 statement as exhibit DI. Upon its admission defence counsel in his final submission prayed the whole testimony of PW5 should not be regarded due Page 14 of 23 to contradiction found in statement and oral testimony. Further he submitted that exhibit DI contradicts testimony of PW1. On the other side State Attorney insisted that not all contradictions affect center of the story. I had time to read exhibit DI, PW5 recorded that he did not went to form together with her husband. She remains at home but she heard a shout (yowe) and she responded where the shout come from it was from the farm where his husband and other relatives were. When she reached at the farm she found Mwita Matinde attacking his husband with stone then Matinde Mwita joined the fight and controlled his husband while he fall down and accused in this case cut deceased at the head three times. While on court PW5 testified that she went to the farm together with her husband and one person and two children, while at the farm they saw stone which hit her husband who fall down and three people attacked him. Accused in this court is alleged to injure PW5 husband who later on died. PW5 informed this court that he saw accused attacking his husband by cutting him on head. Whether they walk together with her husband to farm or PW5 find her husband at the farm is minor issue. The center issue in this case is PW5 was at the farm when deceased was attacked. This Page 15 of 23 information is traced from exhibit DI and was testified in court. Basing on decision in Sebastian Michael & Another vs. DPP, Criminal Appeal No. 145 of 2018 I find the contradiction is minor which does not go to the root of the case. Having set that position of this court, I find prosecution had two eye witnesses, PW5 and PW1 who saw what happened at the farm, According to the testimony of PW1, as regards the deceased’s death his testimony implicates accused herein. He testified that while at the farm clearing it for farming activities with other relatives including deceased, they saw a stone, kombeo which hit deceased on chest and he fell down. The moment deceased fell down, before he stood up then they emerge accused and two other people who started to attack deceased by cutting him thrice on head stab him with arrow on left rib. Eye witness testified that when he saw serious attack even wife of deceased (PW5) who wanted to rescue her husband was also attacked, he hides in a bush within a farm. He emerges from the bush when accused and his fellow Fled and found deceased was laying down injured. He organized motorcycle to take him to police and then to dispensary and then to hospital. Page 16 of 23 As per law, proof of a case can be either orally or documentary. If it is orally then it must be by a person who saw it, heard, perceived it or a person of valid opinion. Thus, oral evidence must always be direct according to section 62(1) of the Tanzanian Evidence Act, Cap 6 R.E 2019. Oral evidence is called the best evidence and superior in credence to other evidence if its witness is credible and trustworthy. The serious concern of the defense has been doubting in credence of PW5, due to contradiction found in statement recorded while in police as analyzed. In my digest, as said, I find contradiction is minor as it does not go to the root and, however, Exhibit DW1 collaborated what was testified by PW1. That means this court make reliance on not a single testimony. The evidence of these two eye witnesses is irresistibly pointing to the accused person and two others; and is not leading to any other interpretation. However, on evidence of this nature, courts of law are warned while dealing with the issue of reliability of visual identification of suspects to consider the mode of identification. These includes degree to which the eye witness paid attention to the culprits, length of time observation, the Page 17 of 23 distance from which witness was observing accused and impediments if any. PW1 explained the attack took like 15 minutes and he was ten (10) foot steps away from where deceased was. Based on the fore mentioned criteria, because the incidence took place on broad day light, the witness had a privilege of knowing all accused persons by names and their profile before, the considerable lengthy of attacking events at the deceased, I am confident that the visual identification had not been impedimental to the identifying witness. This court is aware that if the crime occurs at night issue of light has to be considered as was in Michael Godwin & Another vs Republic, Criminal Appeal No. 66 of 2002 and further aware that visual identification is vulnerable and easy to make mistakes. Accused raised a defence of alibi that he was in Mwanza when crime occurred. As submitted by defence Counsel, accused did not issue notice that he will testify to be out of the scene neither furnish prosecution with the particulars of the place where he claimed to have been at the time of the offence with which he was charged, together with the names and addresses of any witnesses whom he intended to call for the purposes of Page 18 of 23 substantiating his alibi. This does not mean shifting the burden of proof but, so far as he was placed by prosecution evidence that was at the scene, it was expected to give explanation which could introduce doubts in prosecution case that by reason of his presence to some other place, it raise doubt if he was at the scene of crime. In the absence of such evidence as it happened in the case at hand, the evidence of the prosecution placing the accused at the scene of the crime is steadily uncontroverted and this court is not bound to accord any wait to the defense. See Godfrey Anthony Sengeri Nyachange Andrea vs Republic (Criminal Appeal No. 536 of 2020) 2024. TZCA 589. Thus, in this first issue, I rule out that it is the accused person and other two people who killed the deceased. Whether malice aforethought has been established (following the answer to issue no 1). The offence of murder encompasses unlawful killing of another person (human being) with malice aforethought. The killing is with malice aforethought if the person who killed another intended to cause death or grievous bodily harm as provided under section 200 of Penal Code, Cap 16 RE 2022. Just as submitted by State Attorney, the section was analysed by the court in Enock Kipela vs Republic, Criminal Appeal Page 19 of 23 No. 150 of 1994 thus; Usually an attacker will not declare to cause death or grievous bodily harm. Whether or not he had that intention must be ascertained from various factors, including the following (1) the type and size of the weapon if any used in the attack; (2) the amount of force applied in the assault; (3) the part or parts of the body the blows were directed at or inflicted on; (4) the number of blows, although one blow may, depending upon the facts of the particular case be sufficient for this purpose; (5) The kind of injuries inflicted. (6) The attacker’s utterances if any; made before, during or after the killing and the conduct of the attacker before and after the killing. (7) The conduct of the attacker before and after the killing. In the case at hand, accused used machete, deceased had multiple cut wounds all over the body and big cut wound on head as per exhibit Pl, multiple wounds suggests there was many blows and accused disappeared after the crime, they left deceased with injuries which was treated in various health facilities to referral hospital in Bugando. Deceased was attacked on 22/5/2019 and died on 29/6/2019. He was undertreatment for 37 days. During final submission, defence counsel prayed this court to analyse effects when wounds not attended. On the other side, state Page 20 of 23 Attorney pray this court to find the death occurred with limited time as stipulated by law. There is no doubt that deceased was injured after attack and was taken to health facilities. According to PW1 he was taken to dispensary which after the service they refer victim to District hospital and latter on he was referred to Bugando referral Hospital. He was discharged and on the same day he died. Prosecution evidence portrayed effort they made in making sure Chacha Nyamhanga Magendo got medical service contrary to submission by defence counsel. Reading section 205 of Cap 16, this court is settled that deceased died due to injury sustained during attack which occurred on 22/5/2019. Evidence on record show attack was done by more than one person and section 23 of the Penal Code provides that two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence. In the case at hand, accused person Page 21 of 23 together with other two people as mentioned by prosecution evidence had a common intention of murdering the deceased. In his final oral submission defence counsel prayed this court to consider existence of two IR. With respect, the said IR number were never mentioned nor tendered in this case and therefore IR was not part of evidence and this court cannot analyse expert opinion given by PW3 D/ Cpi Nichorus while at the dock that each criminal case has its different IR number. From the prosecution evidence I find the accused is responsible for the murder of deceased and therefore, prosecution managed to prove it was accused and other two people who killed deceased by inflicting him multiple septic wounds which acted as port of entry of bacterial into the blood and cause septicemia as per testimony of PW4 and exhibit Pl. Accused died of septicemia cumulation of bacteria in the blood via multiple septic wounds in the body. I find without any scintilla of doubt that it has been proved beyond reasonable doubt that the accused caused the death of deceased with requisite malice aforethought and therefore, I find the accused person Hura Matinde Mwita @ Kerang'anyi, guilty and consequently convict him of the murder of the deceased Chacha Page 22 of 23 Nyamhanga Magendo contrary to section 196 of the Penal Code [Cap 16 M. L. Komba Judge Considering the punishment for murder is only one known as per law, the accused person Hura Matinde Mwita @ Kerang'anyi is hereby sentenced to suffer death by hanging pursuant to section 197 of the Penal Code, Cap 16 R.E 2019 as read together with section 322 (1) & (2) of the CPA, Cap 20 R.E 2019. . ^b, M. L Judge 26th February, 2025 Page 23 of 23