Zackaria Werema Maroso

IN THE HIGH COURT OF TANZANIA MUSOMA SUB-REGISTRY ATTARIME CRIMINAL SESSIONS CASE NO. 38045 OF 2023 CASE REFERENCE NO 20231124000038045 REPUBLIC VERSUS 1. ZACKARIA WEREMA MAROSO@ FREDY S/O MANYENYO 2. DANIEL S/O BHOKE NGOKO @ NGOKO 3. EMANUEL S/O MNIKO MWITA JUDGMENT 18th & 24th February, 2025 M. L. KOMBA, J,: Above named persons are accused of killing Marigore Marwa Mchanga after the assault on allegation of cattle theft. The said killing was contrary to section 196 of the Penal Code. According to prosecution the said assault was witnessed by deceased wife called Scholastika Mwita Siong'o. When charge read to accused persons, all pleaded not guilty to the offence. Prosecution had to parade witnesses to prove guiltiness of accused person beyond Page 1 of 28 reasonable doubt. In this case, Republic was represented by Mr. Lusako Mwaiseke and Ms. Damari Nyange both State Attorneys while accused persons enjoyed the legal services of following advocates; Mr. Samson Sarno, Mr. Tumaini Kigombe and Ms. Pili Otaigo respectively; and Ms. Lilian Makene appeared for all accused persons. According to prosecution, it was the night of 13/6/2021 in Nkongore village in the Musoma Rural when PW1 Scholastika Siong'o heard an alarm (yowe) and she wake up her husband. Upon hearing the said alarm he put on his clothes took machete and responded. He returned home around 09: 00 am and informed his wife (PW1) that they followed animal prints and found cow in Sirari, then he went to sleep. Around 15.00 hours of the same date while at home PW1 said he saw a group of people at their home among them was second and third accused upon arrival they informed Marigore that as he was needed by the first accused, Zacharia Werema, who was a leader of the said group/yowe meeting. They took Marigore from his home and; on the way, they started to beat him by iron bar and clubs. PW1 followed them up to small bush within Nkongore where there were many people including 1st accused. She went on testifying that when they reach at the meeting Zacharia (1st accused) said they did not beat him properly, Page 2 of 28 he took iron bar and beat her husband on ribs and stomach. While there, 1st accused told Marigore that he was a thief who steal the said cows but her husband denied. Then 1st accused asked the owner of stollen cow if it was stollen by Marigore but he replied he did not saw who took his cows. 1st accused continue beating Marigore who was denying to commit the crime, then group leader ordered Marigore to be put under fire (awekwe jikoni) that means to be tortured till he agrees that he commit the said offence. Following that order, this witness testified that she saw Emanuel Ngoko, Ngoko Bhoke, Mwita Marwa Magoko, Mahaba Marwa Magoko and Emmanuel Mwita Mniko started to beat her husband all over the body including on stomach and ribs by iron bar, clubs and sticks. Following that assault, PW1 informed this court that she reported the matter to police, specifically she reported to OCD that her husband was assaulted by a group of people at Nkongore village and mentioned names of Zacharia Werema, Ngoko Bhoke, Emmanuel Mniko, Mwita Marwa Magoko and Mkama Marwa Magoko. Mkuu wa Kitoa told me to wait so that he can look for a car. Police went at the scene and found Marigore in bad condition and took him to District Hospital I was ordered to go home by mkuu wa kituo. I Page 3 of 28 went home. Witness clarified that she witnessed the assault for like one hour till 16:00hours when she report to police. It was her further testimony that on 17/6/2021 she received a call from her baba mdogo telling her about the death of husband, the file was opened and when Zackaria Werema, Ngoko, Emmanuel and Mwita Marwa Magoko heard that Marigore is dead she said, they run away from village. On her normal movement on 20/5/2023 she found Zacharia in Nkongore village and notified Police in Tarime police station who made arrangement and arrested Zacharia at night through her assistance. Again on 05/6/2023 witness said she saw Ngoko Bhoke at Malulu center in Malulu village in Nkongore ward in Tarime, she informed police and assisted on his arrest at night when he was in his house at Nyabasare street. She confirms to know accused as they were living in the same village but different street. When cross examined, she clarified that there was an alarm and his husband was taken to alarmist the 1st accused ordered him to be taken to jikonifov torture and after the incident she in not living in peace as she is threatened by relatives of accused. She further clarified that at the place where deceased was torture there was small bushes and trees, she managed to see as she was standing in a distance of like 15 footsteps. Page 4 of 28 However, small bushes allow everyone to see what was going on. She further testified that she did not remember how accused persons dressed and she did not visited the house of Emmanuel Mniko after the crime. When police was informed of the crime they only took Marigore from the scene to hospital. While at police station, Scholastica was attended by Idrisa Mwarabu Isaka who appeared as PW4 and testified that on 13/6/2021 while in office he received PW1 who informed him that her husband was assaulted by alarmist and mentioned names of some of alarmist to include Mnanka chairman of yowe and others were Fred Manyenyo, Ngoko, Bhoke, Mwita Marwa Magoko and Emmanuel Mniko at Malulu street in Nkongoro village, he responded by visiting the scene and found a victim by then who was taken to hospital. A person whose cows were stolen and found was directed to open a police file. He said police kept on visiting the victim at the hospital monitoring his condition as he was accused of cattle theft but on 17/6/2021 Marigore died and police started to look for accused. When cross examined, PW4 clarified that he did not mention Zacharia Werema as among people who were mentioned by PW1 who reported that her husband was assaulted by alarmist. Page 5 of 28 The said yowe on 13/6/2021 was responded by PW2 and PW5. Maxmillian Chacha Mniko appeared as PW2 and testified that he participated in yowe the night of 13/6/2021 and noon time. He was among those who followed animal prints up to Sirari and managed to find 9 cows. Among the people whom were together in searching for cows were Mwita Samson, Marwa Mchanga, Marigore (who is deceased in this case) Muron Marwa Magoko, Mwita Stephano and Paulo Range Kachichi. During afternoon he hear a bell in the village which signify a meeting, he also responded. He said the meeting was chaired by Zacharia Werema; the 1st accused herein who asked a man who lost cows if he knows who stole his cow. The answer was negative and Zacharia Werema, a chairman said he know the thief and mention Marigore Marwa Mchanga. Then he command Daniel Bhoke, Mwita Mnero, Emmanuel Mniko and others like six (6) people to go to the house of Marigore and bring him to the meeting. It was his testimony that those people followed Marigore from his home and when they arrive at the meeting Marigore were beaten by many people including Emmanuel Mniko who assault Marigore seriously on ribs and backside of his body by using nut which is used in garage and had iron Page 6 of 28 bar short and thick. He said those people beat Marigore randomly in the body except head. All that occurred in a meeting in which he participated under the chairmanship of the 1st accused. It was his testimony that accused was forced to sign a paper that he steals cow of which he denied to sign. It was PW2 who informed this court Emanuel Mniko @ Okombo, 3rd accused decided to be a chairman and while assuming responsibilities, the 3rd accused ordered people to torture Marigore but he was dissatisfied that people were not serious and decided to do that himself. By using big iron bar, 3rd accused beat Marigore on back and ribs till when he falls down, he was tired and asked for a drinking water. Hearing that, people started to run away after observing status of Marigore then chairman said anybody can notify police for them to collect their cadaver (polisi wafuate mzoga wao). Witness testified that the torture took like one hour till when Marigore seem to be tired while he was standing like 10 footsteps from where Marigore was. He insisted he was present when Marigore was tortured together with Gregori Stephani, Patrie Thomas and wife of Marigore. Page 7 of 28 He confirmed to this court he know people he mentioned, Okombo, Zacharia Werema, Emmanuel Mniko is here and Zacharia Werema another name @ Fredy, as they were born in that that village so they are village mates. He saw them since they were born in that village and when they went to school. When was cross examined he confirmed that on 13/6/2021 there was stealing in their village and there was yowe at noon and that it was Chairman who mentioned the name of thief (Marigore) who was not in the meeting that why there was an order to follow him from his house. When further cross examined/ he testified that the assault took place daytime around 14:00 hours. When asked about the residency of accused person he responded that Emmanuel Mniko resides at Igoronto street while Zacharia resides in Malulu street. About the presence of the wife of deceased, he testified that wife of deceased was present when her husband was tortured, she had a baby, she witnessed the assault and went to report to police. The testimony of PW2 was collaborated by what testified by PW5 (Patrick Thomas Mnanka) that on the night of 13/06/2021 there was an alarm on cattle theft at John Range Kachichi home and he responded. It was Page 8 of 28 resolved to follow animal prints and he join the group together with Max Chacha, James Marwa, Matiko Rhobi. He testified that nine (9) cows were found at Sirari and were taken to John Range house. In the afternoon of the same day he informed this court that he heard a bell ring in the village and they gathered in a small bush where they usually met and find Zacharia, the 1st accused as leader of that meeting. Zacharia called Daniel Bhoke and other commander (people militia) and order them to bring Marigore Mchanga to the meeting. They went with clubs, machete and iron bar with sharp edge (nondo zenye ncha kali) to Marigore house. He mentioned commander were Emmanuel Mniko, Mwita Marwa Magoko, Mwita Mnenga, Mahaba Magoko. They find Marigore and on the way they were beating him using local weapons they carry. They beat him everywhere including legs and they stabbed him with iron bar. When they arrived at the meeting with Marigore, Zacharia Werema and Emmanuel Mniko took clubs and iron bar and started to beat Marigore. He said Zacharia told commander they don't know how to beat. Chairman of yowe meetings resigned from chairman ship and Emmanuel Mwita, the third accused decided to be a chairman. Page 9 of 28 Then Zakaria Werema ordered Marigore to be taken to a place where people are usually tortured {jikonl). They took him to jikoni and started to beat Marigore. He elaborated that the place had small glasses everybody was seeing. They beat him for long time and then Zacharia said call police so that they can take their cadaver. He clarified that Marigore was accused of stealing but he was not mentioned by any person. It was 1st accused inhere who said Marigore is thief but the owner of cow said he don't know who took his cow. He informed this court that it was the wife of Marigore who report the matter to police. When cross examined, this witness clarified that yowe meeting was normal in their customs and in that day, there was yowe concerning cattle theft but people did not vote on names of thieves which is their customs. The name was just mentioned by the 1st accused which is not the procedure, he lamented. He confirmed he did not follow Marigore to his house and did not witness what command did to Marigore while on their way but when approaching the meeting place he saw commander beating Marigore. About the place used to torture Marigore he clarified that there were trees scatted with short glass, it was in binagi street. While insisted that it was 1st accused, Zacharia who said commander did not know how to beat. Page 10 of 28 About the disappearance of accused he confess he did not visit their house so he don't know when they disappear from the village. The body of Marigore was examined on 20/6/2021 by Masiaga Joseph Chacha, PW3 a clinical officer from Tarime Hospital. Examination was done at Tarime Mortually in the presence of Marwa Marwa Mchanga and Samson Marwa. It was a clinical examination not surgery. From that examination witness noted that the body had wounds all over which was caused by blunt object while some were caused by sharp object. He clarified that wounds caused by sharp object were in hands and legs while the rest of the body had wounds caused by a blunt object. He informed this court that after examination witness noted the death was caused by neurogenic shock (maumivu makali), he fills in post mortem report, exhibit Pl and released the body to relatives. During cross examination he clarified and repeated that the cause of death was neurogenic shock and was not sure if there was delay in treatment of the deceased. The 1st and 2nd accused was arrested by PW6 (PF 23164 A/insp Juma Hamisi) following information from PW 1 that on different dates she saw Page 11 of 28 accused persons. 1st accused was arrested on 20/5/2023 and 2nd accused was arrested on 05/6/2023. Both were arrested at night when they were at home following the investigation file TRM/IR/2343/2021. In cross examination witness confirm that he did not communicate to village leaders when he went to arrest in the village. The 3rd accused was arrested by PW7 (PF 19498 Insp Ally Sharif Ally) on 07/10/2023 while he was at Rebu area in the pub following information from one citizen that a target person is accused of murder which occurred in the year 2021. He effects the arrest and called wife of the deceased who identified the accused as the one who was involved in the assault on that day. The crime was investigated by PW8 E 9218 D/Sgt Ernest who was assisted by F. 8721 D/Cpl Narussy, when given file PW8 the crime was committed 13/6/2021 in Nkongore village in Tarime District and on 21/6/2021 D/Cpl Narussy went to witness examination of the body of deceased and report was prepared. He went on testifying that on the same date, that is 21/6/2021 the two investigators and other police went to Nkongore village and inspected the scene of crime whereby D/Cpl Narussy draw the sketch map which was admitted as exhibit P2. Page 12 of 28 Witness informed this court that there were six (6) accused who are Fred Manyonyi @ Zacharia Werema, Daniel Bhoke Ngoko and Emmanuel Mniko Mwita, Mnanka Mangiti, Mwita Marwa Magoko and Mahaba Marwa Magoko. With the aid of informers, they managed to arrests three who are accused in this case and police are searching for other accused. In his investigation he informed this court that he noted that police failed to recover weapons used in commission of the offence. He noted the night of 21/6/2021 there was cattle stealing in the house of John. There was an alarm and wananchi make a follow up of the animal prints up to Sirari and found cows. The alarmist did not spot any person in the said stealing however he informed this court that Mnanka chairman of yowe meeting (who is not arrested) and 1st accused called a meeting targeting to look for the thief, however it was the 1st accused who mentioned Marigore to be a thief and was not in the meeting. On further examination in chief, witness testified that Commanders were sent to follow Marigore among them there was Daniel Bhoke who is the 2nd accused. He said alarmist take Marigore from his home and assaulted till his condition changed when his wife reported to police who, when went to Page 13 of 28 the scene managed to find Marigore, they took him to hospital where he met his death. During cross examination he clarified that deceased was mentioned by 1st accused while in a meeting, the area where assault took place had small bushes. About the accused persons he said they all had titles in the said meeting and elaborated that deceased was followed from his home by alarmist and was assaulted by using local weapons. When prosecution closed their case, this court found accused persons with case to answer and they all opted to defend under oath. 1st accused testified as DW 1 and informed this court that on 13/6/2021 he was at his home as he was not feeling good, he was sick so went nowhere. He knew Marigore Marwa Mchanga who was living in Malulu street and he said he resides in malulu and is aware that Marigore was died and he participate in his burial by contribution. He denied to participate in that fracas although he admitted that he was arrested the night of 20/5/2023 when at his home. When cross examined, he admitted that he informed this court he was sick without explain what he was suffering from neither tendering any proof. In Page 14 of 28 his familiarization with the village he was arrested he said he was born in that village so used to be in that locality. Witness confirm he tendered no notice that he will rely the defence of alibi. Second accused, Daniel Bhoke appeared as DW2 his defence was in general deny as he informed this court that on 13/6/2021 at night he doesn't remember anything as he was sleep but he remembers he was arrested on 5/6/2023. When cross examined, he confirms he did not issue notice that he shall rely on alibi. Third accused appeared in court as DW3 who informed this court that on 13/6/2021 at night he was sleeping with his wife at his home in Kigoronto street in Nkongore village and day time even hours he was in his garden watering Sukuma week. He did not hear anything in his village although he confirmed he was arrested on 07/10/2023 around 17: 00 hours in Tarime DC at Rebu market and two days later while under custody he was informed is accused of killing Marigore Mchanga and denied. When cross examined, he testified that he was born in Kigoronto and has been living there since he was born. His wife is not aware of the criminal charges he is facing. On the importance of calling witness to prove in court that he was sleeping he said there was importance but he did not call any witness. He Page 15 of 28 further confirmed he know Maxmiliiam and Scholastica and he has no grievances with them ail. About the distance from kingoroto to Maluiu where the crime occurred, he said a person may walk from one street to another though he don't know the distance. That marks the end of testimonies from witnesses. Accused persons are charged of murder, as per information filed, they are accused of killing one Marigore Marwa Mchanga. From exhibit Pl Marigore Marwa Mchanga is dead and his death was unnatural as he had wounds all over the body and had stab wound in upper and lower extremities which involve the bones and was died due to neurogenic shock. Prosecution paraded PW3 who explained how he found the body when it was examined before burial. In determining the fate of the accused persons before this court, the prosecution must prove beyond reasonable doubt that, indeed, it is accused persons who killed deceased contrary to sections 196. So far as the section indicate the offence of murder, then, they have to prove malice contrary to section 200 both of the Penal Code Cap 16 RE 2019. Page 16 of 28 Above paragraphs are summary of the evidence adduced in court, the prosecution relies on wife of the deceased who testified as PW1, PW2 and PW5 who are eyewitness and managed to explain in court what happened on the fateful day. Apart from eye witnesses, the prosecution also relies on the evidence of PW4 who arrived at the scene immediately after the crime where he found Marigore injured while unattended. In criminal trial there are two things to consider while analyse guilt mind; mens rea and actus reus. In analysing these two key aspects in this scenario, I will also consider the evidence of both parties adduced before the court. In the first aspect of identification, PW1, PW2 and PW5 eye witness testified to have witnessed the accused persons assaulting deceased person. All eye witnesses testified that the incident took place day time in an open space at the meeting and in small bushes, there were sun light. All witnesses mentioned weapon used which were local weapon including clubs and iron bar. PW1 testified around 15:00 hours group of people including 3rd accused went to her home and called deceased, she followed them and saw they were assaulting him till they reach at the meeting ground. Page 17 of 28 When they surrender the deceased at the so-called meeting, PW1 informed this court that 1st accused complained that commander don't know how to torture and he took iron bar and started to assault Marigore in stomach and ribs. 2nd accused who was also at the meeting waiting for Marigore to arrive, had a club and beat Marigore in different parts of the body and used sharp iron bar to stab him. This witness insisted that he know people he mentioned as accused as they stay in the same street he know their names and faces. PW2 informed this court that he participated in the meeting which was called noon time. At the meeting, he witnessed Marigore were assaulted by different people including Emmanuel Mniko who had iron bar which was short and thick. He testified that Marigore was beaten all over the body except head. In order for this court to rule out if the identification of accused by eye witnesses was watertight, the evidence adduced must be tested to make sure that there was a positive identification and recognition for this court to be able to rely on. In this regard, I will navigate in the principle of identification as enunciated in the landmark case of Waziri Amani vs Republic [1980] TLR 250 in which the Court of Appeal held that; Page 18 of 28 '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 ids watertight". In order to make sure there is no possibility of mistaken identity the following questions must be answered; the time the witness had the accused under observation, the distance while in, condition the observation occurred, whether it was day time or at night, whether there was poor or good lighting, whether the witness knew the accused or had seen the accused before the incident. (See also Aus Mzee Hassan vs Republic, Criminal Appeal No. 17 of 2020, Yohana Kulwa @ Mwigulu & 3 Others vs Republic, Consolidated Criminal Appeals No. 192 of 2015 and 396 of 2017, Alfred Kwezi @ Alphonce vs Republic, Criminal Appeal No. 216 of 2021). The Court of Appeal insisted that, the court has to make sure there is no mistake of identity before proceed with conviction. In the case at hand all eye witnesses testified the incident took place at day time that means there was sunlight. They took deceased to the meeting which was open space and PW2 said he was 10 footsteps away Page 19 of 28 from deceased and PW1 clarified she was 15 footsteps away from where her husband was tortured. About time spent while under observation PW1 testified she witnessed the assault of her husband for one hour before left the scene to police. PW2 testified that he was at the meeting till when deceased was tired and 1st accused ordered police to collect their cadaver, then he disperses with other people. The area where assault was done is open ground with small bushes as explained by PW1 and PW5. Witness knows accused as they live in the same village. For PW5 he was born in that village he testified he was living in that village and know accused, so far as all eye witness knew accused before, then what was done at the scene was recognition as was directed in Mussa Saguda vs The republic Criminal Appeal No 440 of 2017. It was the testimony of PW1 that after observing how her husband was tortured, she decided to report to Tarime police station where she was attended by PW4 and she mention names of people who assaulted her husband. That testimony is collaborated by what was testified by PW4 that it was PW1 who mentioned names of accused when she was at police. This was in conformity with holding in Jaribu Abdalah vs Republic [2003] TLR 271, quoted with authority the case of Mawazo Mohamed Nyoni @ Page 20 of 28 Pengo & 2 Others vs Republic, Criminal Appeal No. 184 of 2018 on ability of witness to name offender at the early stage. And naming of the offender at the earliest time possible add value to the credibility of the witness. See Marwa Wangiti Mwita vs Republic, Criminal Appeal 6 of 1995. It is the position of this court that prosecution had credible witnesses and their testimony can be relied upon. As it was directed in the case Philimon Jumanne Agala @ J4 vs The Republic, Criminal Appeal No. 187 of 2015, all four ingredients constitute the offence of murder must be proved before conviction. That there is the death of a person, the said death was caused by unlawful act or omission, it is the accused who caused the death of deceased and the accused acted with malice aforethought. In the case Magendo Paul and Another vs The Republic [1993] T.L.R s 219 (CAT), it was held inter alia that; '..for a case to be taken to have been proved beyond reasonable doubt its evidence must be strong against the accused person as to leave only a remote possibility in his favour which can easily be dismissed' Page 21 of 28 In the case at hand there is a person, Marigore Marwa Mchanga who is died and his death was unnatural as his has wounds all over the body as per exhibit Pl. The injury cause death few days later square to section 205 of the Penal Code. The guilty mind of accused persons is next in analysis. Under section 200 of penal code is referred to as malice aforethought. The section reads; 'Malice aforethought shall be deemed to be established by evidence proving anyone or more of the following circumstances- (a) an intention to cause the death of or to do grievous harm to anyperson, whether that person is the person actually killed or not; (b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although that- knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; Page 22 of 28 (c) an intent to commit an offence punishable with a penalty which is graver than imprisonment for three years; (d) ' Court of appeal in the famous case of Enock Kipela vs Republic, Criminal Appeal No. 150 of 1994 (unreported) said usually, an attacker will not declare to cause death or grievous bodily harm. Whether or not accused had that intention must be ascertained from various factors. In the case at hand, accused persons used local weapons including club, nut, sticks and sharp iron bar to assault deceased, they direct blow all over the body including in stomach and ribs and even the legs were stabbed. Other blows were directed to stomach and deceased vomited blood. Exhibit Pl explain that accused had multiple wound all over the body. This court finds club and iron bar is dangerous weapon bearing in mind the blow was directed all over the body, that means, there was several blow directed to deceased. Kind of injury was multiple wounds as deceased was assaulted in phases, first while walking from his home to meeting place, then while at the meeting and third phase when he was Page 23 of 28 taken to jikoni. When Marigore was seriously injured, as per evidence in record, the 1st accused tell people to call police so that they may collect the corpse. This was what was spoken by attacker after the commission of the crime. This shows that accused persons intended to kill the deceased as most of the tests of malice aforethought is proved. It is now time to analyse defence. It is settled that it is not the duty of accused to prove his goodness, rather, his evidence has to raise doubts on prosecution, see Yusuph Nchira vs The Republic, Criminal Appeal No. 174 of 2007, Abas Matatala vs Republic, Criminal Appeal No. 331 of 2008 and Lack s/o Kilingani vs Republic (Criminal Appeal No. 402 of 2015) [2016] 7ZCA 688 (29 July 2016). DW1 gave general denial that he was at home when the crime occurred and that he was sick. In his defence he did not testify what was wrong in him and no other witnesses paraded to testify on his sickness neither hospital card was tendered to prove he was sick. Further, he did not give notice under section 194 (4) of the CPA. DW2 informed this court that he doesn't remember anything though he admitted he was arrested while DW3 testified he was at his home sleeping with his wife at night and daytime he was watering his garden. He did not parade witness to testify that they were together that day while watering Page 24 of 28 garden and that he was not at the scene of crime. The 3rd accused furnish this court with notice that he shall rely on defence of alibi, however in terms of section 194 (5) he was supposed to furnish the 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 substantiating his alibi he did not do that. Apart from the second accused who decided not to defend himself from the charge, 1st accused did not even give notice of alibi neither parade witness to testify this court that he was with them. When asked if he has relatives he answered he was staying with his mother and children and he has wife, none of them was paraded as witness to inform this court that where was the 1st accused when the crime took place. I find the defence of alibi as relied by 1st and 3rd is unsupported and I accord no weight. See Godfrey Anthony @ Sengeri @ Nyachange @ Andrea vs Republic (Criminal Appeal No. 536 of 2020) [2024] TZCA 589 (18 July 2024). And therefore, this court find no doubts raised by accused persons from the prosecution evidence. Page 25 of 28 Am aware that when cross examined prosecution witnesses specifically PW1 and PW2 confirmed there was an alarm (yowe) and it was alarmist who went to the home of deceased to force him to avail himself in the meeting. Thereafter he was assaulted by known people who, among those alarmists were identified by face and name. Deceased was assaulted in phases; one when he was taken from his home to the meeting place. Phase two was in the meeting when chairman said commanders did not perform their duties well and the third phase is jikoni. The decision of the chairman of the said meeting to assault deceased and allow other people to assault deceased is unwelcoming bearing in mind that he was not caught ready handed neither run away after they suspected him. As was held in the case of Mathias Mhyeni and Another vs The Republic [1980J TLR. 290, that:- 'Where a person is killed In die prosecution of a common unlawful purpose and the death was a probable consequence of that common purpose each party to the killing is guilty of that murder/ Page 26 of 28 Circumstances of this case show attackers had common ill intention to kill deceased specifically when they fail to take deceased to police when they suspected him and / or to hospital after the assault. Worse enough attackers call the call him corpse while he was still alive. That said, I find the accused persons Zackaria Werema Maroso @ Fredy S/O Manyenyo, Daniel S/O Bhoke Ngoko @ Ngoko and Emanuel S/O Mniko Mwita guilty and consequently I hereby convict Zackaria Werema Maroso @ Fredy S/O Manyenyo, Daniel S/O Bhoke Ngoko @ Ngoko and Emanuel S/O Mniko Mwita of the murder of the deceased Marigore Marwa Mchanga contrary to section 196 of the Penal Code, Cap 16 [R.E. 2022]. M. L. KOMBA Judge 24th February, 2025 SENTENCE Considering the punishment for murder is only one known as per law, my hands are tied, the accused person Zackaria Werema Maroso @ Fredy S/O Manyenyo, Daniel S/O Bhoke Ngoko @ Ngoko and Emanuel S/O Mniko Mwita are hereby sentenced to suffer death by hanging pursuant to section Page 27 of 28 197 of the Penal Code, Cap 16 [R.E 2022] as read together with section 322 (1) & (2) of the CPA, Cap 20 [R.E 2022], Right of appeal is fully explained. k M. L. KO MBA Judge 24th February, 2025 Page 28 of 28