Kenedy Odamo Bina

IN THE HIGH COURT OF TANZANIA MUSOMA SUB-REGISTRY AT TARIME CRIMINAL SESSIONS CASE NO. 000015568 OF 2024 REFERENCE NUMBER 202406072000015568 REPUBLIC VERSUS KENEDY ODAMO@ BINA JUDGMENT 25th February & 3rd March 2025 M. L. KOMBA, J.: Kenedy Odamo is accused of killing his young brother from the same womb, Yohana Nguka @ Odamo. The killing occurred in the morning of 03/12/2023 at Lolwe Village within Rorya District. The whole story is narrated by six (6) prosecution witnesses including wife of the deceased, who was paraded as PW1. In this case, Republic was represented by Ms. Doto Banga, Ms. Damari Nyange and Ms. Denisia Towegale all State Attorneys while accused person enjoyed the legal services of Ms. Pilly Otaigo, advocate. I thank them for the corporation. Page 1 of 15 Evalina Nyanda Yangayanga was paraded as PW1 in proving the offence charged to accused who is brother-in-law. As wife of the deceased was of the submission that on 3/12/2023 together with his husband went to her father-in-law residency in Lolwe, for the purpose of spraying pesticide to their farm. They used their motorcycle. When arrived at the farm they organized young people to fetch some water to be used for fraternization of pesticide. PW1 was not feeling ok so she went to rest at home leaving her husband at the farm. At home PW 1 asked to prepare some food by her mother-in law so she went and proceeded with that engagement. She went home testifying that at their home accused was making charcoal and when her husband return home after finishing spray the farm, around 11:00 am he found accused outside, her husband asked accused why he cut trees as there was tree stumps ail over the place at their home. Accused was silent, when asked for the second time and accused replied why he asked such kind of question. Her husband informed accused that he has good intention for what he asked. Abruptly, accused started to air abusive language while saying he was the one who planted the trees when her husband was a little boy, her husband was furious. By that time Page 2 of 15 accused was attending his charcoal while her husband was standing a side. Then accused run to her husband and started to beat him on head. Then accused kicked her husband and fall down. She saw accused took a log which he used to remove charcoal from charcoal pit kiln and beat on the head of her husband. The log was big. When this witness saw that, she went and hold accused and asked not to beat her husband. He refused and abused her while saying he shall kill his young brother. As her husband was injured from the head, the fight ends. PW1 make an alarm and few people responded including Samson Patrice. PW1 failed to get commercial motorcycle to take her husband to hospital so they used her husband motorcycle which was driven by accused to hospital. She said, while in motorcycle, her husband was assisted by Samson Patrice and she went to hospital by foot. When arrived at the hospital, her husband was in theater from there he was taken to the ward. At night they make further examination and x-ray were taken which revealed that patient had blood clot in brain and were referred to Bugando Medical Centre. On 05/12/2023 her husband was at Bugando Hospital where they continue with examination of the patient and confirmed there was blood clot in brain but they failed to make operation due to high Page 3 of 15 pressure and they were advised to wait for the pressure to be normal. However, she said on 14/12/2023 her husband died. When cross examined, PW1 confirmed he know accused who is easy to loose temper and that he was furious when was asked why he cut trees. She further clarified that her father-in-law was around sitting at the chair but thought his children were playing. When asked about the number of trees which were cut by accused, she responded that accused cut like 10 trees as there was tree stump at the compound. This witness confirmed on participation of the accused in assisting the victim from wrapping his wound, taking him to police then hospital and he remain in the hospital observing the treating. When asked about the trees which were cut, she testified that the tree stump found in compound suggested accused cut small trees. Doctor Janabi Tumbo appeared as PW2 and testified that, 03/12/2023 he was at working station where he received Yohana Nguka who was injured. After observation of the patient, he found he was bleeding from his head where he was injured, he cleaned the wound and stitched it. According to this witness the wound size was 8cm long, 3cm wide and 5cm deep. He takes x-ray which show skull was broken and noted patient was supposed Page 4 of 15 to be referred to Bugando for further treatment and refer them. About the nature of injury, he testified that the injury was caused by a blunt object. His findings were recorded in PF 3 which was admitted as exhibit Pl. During cross examination he clarified that patient was sent to hospital by accused. The body of Yohana Nguka Odamo was examined on 19/12/2023 by pathologist, Subira Bhoke Matiko (PW3) who is working at Bugando Medical center. Physically, she noted that a body had a wound on right side of the head and it was stitched as it was 8 cm long, it was only one wound. Witness said she opened the head skin so as she can observe inner part of the wound and found skull was broken. She open skull and found blood in brain and brain was enlarged (brain edema). After that finding she replace organs in order and stitched the wound again before it was handled to relatives. By looking on that wound she testified that the injury was caused by blunt force trauma. The report filled by this witness was admitted as exhibit P2. Page 5 of 15 The crime was reported to ASP Glegory (PW4) police working at Shirati police. He testified that on 16/12/2023 he received a visitor by name of Samsom Kagutu, councilor from Nyahongo Ward. He testified that he was informed by that chancellor that Yohana Nguka Odamo who was under treatment in Mwanza is dead, that Yohana was assaulted by his brother, Kenedy Odamo that he reports the matter so that action can be taken as family intend to hide the truth. He specifies the crime take place in Loiwe village and named the accused, Kenedy. On the same day which is 16/12/2023 this witness, D/cpI Masunga and D/Cpl Benezeth and went to the Loiwe village in Kionyo hamlet and arrest the accused while at their home who was kept at Shirati Police station. The same testimony was given by PW5 (G. 8272 D/Cpl Benezeth) that he joined PW4 in arresting the accused who was found at their home. PW5 knows accused as he is militia man working with Rorya District. PW6 (H 316 D/Cpl Masunga) was investigator of the crime. He was assigned the said duty on 17/12/2023. Upon reading the file he noted that accused was arrested on 16/12/2023 but there was no enough information and on the same day. 17/12/2023 together with Benezeth (PW5) and OC CID, they went to the scene in Loiwe and find people in the village. After Page 6 of 15 they introduced themselves, they inform public who were around that they went for inspection the scene. PW6 draw a sketch map of the scene (exhibit P3) while assisted by Grace Jeremiah and make some interrogation as a way of gathering information. Previously he said the record show on 03/12/2023 accused report to Police Shirati that his young brother injured himself while cutting tree. Accused was given PF3 for treatment of a person who was injured. However, on 16/12/2023 he informed this court that councilor reported to police that deceased was injured by his brother who is accused in this case. Following that second information, PW6 went to the scene and while there he saw tree stump as a sign that trees were cut, he also saw charcoal pit kiln with charcoal and managed to get eye witness, Evalina (PW1) who was wife of deceased. He then collaborated the story from PW1 and how he found the scene and concluded that crime rook place at that area. From the scene visit PW6 then collected exhibits which were PF3 and post mortem report from Mwanza where deceased died in 14/12/2023 while under treatment whereof the body was examined on 19/12/2023 and close his investigation. Page 7 of 15 During cross examination he informed this court that was informed father of the deceased was at home when crime took place and so do the Grace who assisted him in drawing the map. Upon this court rule that accused has a case to answer, the accused enter his defence under oath and he was the only defence witness DW1 (Kenedy Odamo). He is militia by training and that on 03/12/2023 left his home Obwelo and went to Lolwe to his father's house. He said he went Lolwe to take his charcoal as used the compound for making charcoal. He testified that he was selected the good charcoal from the charcoal kiln pit and left some logs which were not properly burned. He said he cut trees so that he can burn the unburned logs to the point of charcoal. Accused clarified that he cut his own trees which he planted. In the process of making his charcoal, he testified that his young brother Yohana Nguka Odamo (deceased) arrived at their father's house in motorcycle while carrying pesticide pump and a stick used to mix pesticide. When he arrived Yohana complained of the action of cutting trees done by DW1 on justification that, the place where trees were planted is a home and not a bush. It was the testimony of DW1 that Yohana air out abusive language to him while holding a stick. DW1 testified that he warned deceased on abusive Page 8 of 15 language in reciprocity deceased insisted he was serious on the issue of cutting trees, he then raised up his hand which had stick and was punched by accused make it fall on deceased head and the stick which was on hands of deceased hit him and burst the head he clarified that he wanted to punch a hand which had stick before the stick landed to him, actually he said he punched the hand. It was just one blow and the stick rest on the right side of the head of accused. From there, accused said he assisted the deceased by wrapping his head by using headscarf of PW1. He asked for assistance from Samson Patrice who assisted him to police then to hospital. It was his testimony that he was at the hospital all the time. He even escorted Yohana to Bugando hospital when they were referred there. Accused went on testifying that he was arrested by police on 16/01/2024 when he was at his father's home in Lolwe village while were in preparation of how to receive guests for bereavement as were informed Yohana who was in Bugando Mwanza is dead. He further informed this court that accused is his young brother from the same womb and they share father. He prays for forgiveness to this court as it was deceased who started abused him. He showed he was sorry for death of his young brother as he did not intend to kill him. Page 9 of 15 When cross examined by State Attorney, he clarified that it was deceased who started the fight by following him at the place where he was making charcoal and the place had logs which are used to make charcoal. He further clarified that when all happened PW1 was inside the house and therefore he did not witness when crime took place. He clarified that he called Samson so that he can escort him to hospital and confirmed that deceased was bleeding from head. The accused in this case is charged of murder contrary to section 196 and 197 of the Penal Code. The charge is serious because it involves a death sentence penalty to the convict unless the same is not proved on the standard required by the law. At this stage, I wish to point out that in order to win conviction, the prosecution must prove their case beyond any reasonable doubt as required of it under section 3(2) of the Evidence Act, CAP 6 R.E. 2022, short of that conviction will fail as it is not the duty of accused to defend, rather, evidence led by the prosecution must incriminates him to the extent that there is no other premise than the fact that the accused person committed the offence with which he stands charged. (See Anthony Kinanila and Another vs The Republic, Criminal Appeal No. 83 of 2021 (unreported). Page 10 of 15 In the case at hand, the accused is charged of murder and section 196 of Penal Code, Cap 16 reads; Any person who, with malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder'. Prosecution had eye witness who explained what happened, that accused hit deceased on head by using a log and he was injured. Exhibit Pl and P2 explain the wound which was 8 cm long was on head and was caused by blunt object. This fact was not disputed by the accused and he went further explained what happened and confirmed his young brother is dead. It is the position of this court that there is no doubt that there is death and it was unnatural as deceased had a wound which affect skull. The only issue this court is called upon to resolve is whether accused did that with malice. During hearing of this matter accused was reminded of his offence he pleaded that he did not intend. So far as the charge by prosecution read murder, then it was recorded as a plea of not guilty to the offence. In proving the offence was committed by accused, prosecution depends on the evidence of one I may call key witness, PW1 who testified she was at the scene on the fateful day and witnessed accused beat deceased at the head after some argument and exchange of words. PW1 confirmed that deceased was assisted by accused all the time since he was injured. When police visited the scene and Page 11 of 15 making a sketch map, police were assisted by a person called Grace Jeremiah. Was she at the scene? What is her version of evidence. Prosecution denied this court opportunity to know what was witnessed by Grace, a person who assisted police to draw a map. Let me analyse the defence, accused explained that he was making charcoal and that day he was at the charcoal kiln removing his charcoal when he appeared young brother, deceased. He informed this court that deceased seriously complain of the habit of accused to cut trees at their home and arguments started. Deceased had a stick and when raise up his hand to beat accused immediately accused said he punched the hand and the log deceased was holding heat himself on head. He wrapped the head of deceased and proceed with other steps. Accused testified that PW1 was inside the house when all this happen. According to defence, PW1 is not eye witness. This court is aware that the duty of the accused person is not to show his innocence while in court, rather, his evidence has to cast doubts on prosecution, see Lack s/o Kilingani vs Republic (Criminal Appeal No. 402 of 2015) [2016] TZCA 688 (29 July 2016). The explanation made by accused made me to revisit testimony of PW1 and find she informed this court that she was not feeling well on that day Page 12 of 15 so she was not productive at farm. She went home where her mother-in- law ordered her to prepare some food, she obeyed. By her own words she informed this court that she was engaged in kitchen chores. I understand the testimony of accused when he testified that PW1 was inside, she was preparing food as she informed this court. I find the defence shaken the prosecution case on whether PW1 was at the scene. The doubt is confirmed by exhibit P3 that it was Grace who witnessed what happened at the scene. It was said in Yusuph Nchira vs The Republic, Criminal Appeal No. 174 of 2007 (unreported) that: - ' The appellant had only to raise doubts on his presence at the scene of crime and the prosecution had to prove its case beyond reasonable doubt. The appellants story need not be believed. He had only to raise a reasonable doubt and not to prove anything.' After being settled that there is doubt if PW1 was at the scene, what is the remaining piece of evidence to convict the accused is the testimony of the accused. Why, it is because doubts are decided in favour of the accused. See Syridion Michael vs Republic (Criminal Appeal No. 262 of 2022) [2024] TZCA 365 (15 May 2024). Page 13 of 15 Accused testified it was deceased who followed accused at his charcoal pit kiln where he was sorting charcoal and seriously started the argument on the cutting tree. He testified further that they had a fight and he informed samson as the first person and, in the cause of fighting deceased was injured. He insisted in his defence that it was deceased who followed accused to charcoal pit kiln. Did he intended to kill deceased? The best test one provided in the case of Enock Kipela vs Republic, Criminal Appeal No. 150 of 1994. In the case a hand, although deceased was injured on his head, the weapon used was log/stick which is not dangerous and accused did not hide after the crime, he assisted victim on each step from wrapping while at the scene then he took him to hospital and remained at the hospital for some hours. If he intended to kill his young brother, accused could not offer such services. What does Penal Code provide when there is no malice aforethought; 195.-(1) Any person who by an unlawful act or omission causes the death ofanother person is guilty ofmanslaughter. Accused fight with deceased and his action of punching the stick resulted to injury which in few days cause death. I am settled that prosecution failed to establish malice aforethought to the offence of murder and under Page 14 of 15 section 300(2) of the Criminal Procedure Act, Cap 20 [R.E 2022] this court convict accused marched before this court with a lesser offence of w M. L. KOMBA JUDGE SENTENCE Having taken into account the above considerations, I hereby sentence Kenedy Odamo to a conditional discharge for a period of twelve months, under section 38 (3) of Penal Code, [Cap 16, R.E 2022]. It is so ordered. Nur M. L. KOMBA Judge 03rd March, 2025 Page 15 of 15