Onyango Marucha Mwita

IN THE HIGH COURT OF TANZANIA MUSOMA SUB-REGISTRY AT TARIME CRIMINAL SESSIONS CASE NO. 0000670 OF 2024 CASE REFERENCE NUMBER 20240109000000670 REPUBLIC VERSUS ONYANGO MARUCHA MWITA JUDGMENT 04th & 05th March, 2025 M. L. Komba, J.: Above named person is accused of attempt to murder Ayubu Athumani @ Menganyi s/o Mugita (Victim) on 09/3/2019 at Matamankwe village within Tarime District in Mara region. It was alleged by prosecution that house of the Victim was set on fire on the night of 09/3/2019 by some people including the accused. In that house there was victim, his wife, his two children on one room and the other room there was his two young brothers and one child (PW 4). Prosecution claimed that the fire set intended to kill the victim and charged him with attempt to murder Page 1 of 19 contrary to section 211(a) and 380 (1) of Penal Code, Cap 16 R.E 2022. He denied the charge hence full trial. In proving the offence as charged to accused, Republic was represented by Mr. Charles Kagirwa (SSA), Ms. Doto Banga, Denisia Towegale and Mr. Gasto Mtitu all State Attorneys while the accused had a legal service of Ms. Mary Samson, Advocate. Marasi Otaigo was paraded as PW1 and testified that on 10/3/2019 he was at night shift at Tarime hospital where by around 02:00 hours he received a patient, Ayubu Athumani with blisters whereby he noted his body was burned as blisters are caused by high temperature. He started treatment and when his condition was stable, he filed PF3 which was admitted as exhibit Pl. In cross examination he clarified victim had wounds all over the body as it appears in exhibit Pl although he did not record the degree of burn which assists practitioner to determine extent of injury. He testified that patient was admitted though he doesn't remember number of days. The victim in this case is Ayubu Athumani Mgaya (PW2) who informed this court that on 09/3/2019 around 23:00 hours he was sleeping at his house. He hears foot steps outside. He was suspicious and decided to wake up Page 2 of 19 and went to sitting room where there was a grill door which has opening on the top. He flashed torch on that opening and managed to see outside his house, he saw Saba Sabure, Onyango Marucha Mwita, Kelaryo Rhobi Busere, Ng'ong'ona Manyerere and Sabule Wang'ori (Meng'anya) he returns to his room and make an alarm (Yowe). He went on testifying that those people who were outside spread petrol outside his house and set fire. He escaped through the window to neighbours for assistance but was not around and decided to go back to his house. This time he used the door which was locked from outside, he open and enter. He found fire in the sitting room and his bedroom while his wife and children were inside. He rescues his one child and his wife rescued another child. Neigbours who respondent to his alarm took him to hospital for treatment as he was injured. He insisted he know accused who was at the scene that night, they went together in jando and they have married in the same family. He associated the crime with his sungusungu activities as he contesting crime in the village and those criminals are not happy with him as he arrest them. After that incidence of fire all accused went at large. Currently victim's fingers are not working properly and his skin is affected. Page 3 of 19 In cross examination during cross examination, he clarified that, he saw accused and others through a hole at the upper part of the grill and managed to see only part of accused who was in black jacket. He confirmed he did not tender any report concerning his fingers and skin health. About the previous criminal case, he confirmed that Onyango was not charged together with other two and among the suspects Ng'ong'ona was not arrested. About Onyango, he clarified further that Onyango (accused herein) had armed robbery case and police informed him they have to wait for that case to be decided so they did not connect Onyango with those two. He came to know that Onyango is around when he was arrested for armed robbery. Sabure Mugita appeared as PW3, mother of the victim who testified that on the night of 10/3/2019 she heard yowe (alarm) from her daughter in­ law house, as they live in neighborhood, she opened the door of her house so that she can respond to alarm, she found fire outside the house of her son, Ayubu Athumani. She clarified that fire was on the door. She went closer so that she can rescue them, on the way she was beaten and she come to realize there was people around, one of those people beat her with a stick and was told to worn her child (victim) to stop his sungusungu Page 4 of 19 activism of combating crime or else they will kill him. (tutamuua tu hawezi kuzuia uhalifu Tanzania nzimci). When she concentrated in looking at them, she testified that she managed to identify Saba Nyangoro, Kelaryo Rhobi Busere, Onyango Marucha, Ng'ong'ona Manyerere and Sabure Wengoro. She clarified Onyango and Ng'ong'ona were from their village so she knew them well. She insisted his son was burnt from that fire. During cross examination she clarified that her house and that of the victim are in neighbour hood the distance between the two house is like ten (10) footsteps and that she was beaten when she was going to rescue. PW4 (Selemani Ayubu) is a son of the victim who like his grand-mother he testified that on the night of 09/3/2019 there was a fire at their home. He was asleep but when he wake up, he saw fire at the door, his uncle whom they sleep together climbed a wall and escape but he used the door to go out of their room. When get out, just in 4 footsteps he saw seven (7) people but he recognized accused and Ng'ong'ona whom told him if his father will not stop Sungusungu activities they (accused and Ng'ong'ona) will kill him. He went on testified that he was taken to somewhere and, in the morning, he noted he was in another village, he was assisted by the Page 5 of 19 house of Msoka and return to their home only to find his father is taken to hospital. The matter was investigated in September 2023 by G. 9298 D/Cpl John who testified as PW5. He noted the file was concerning Onyango Marucha, Saba Sabure, Keraryo Wambura and Saburi wangori. The victim was called Ayubu Athumani. According to the file of the offence he informed this court that crime was committed on 09/3/2019. He went on testifying that Onyango Marucha was arrested on 09/08/2023 as he disappeared after he committed the said crime. It was his testimony that accused herein was arrested in connection with another offence, armed robbery which occurred in Rorya, following that offence, he confirmed that accused Onyango was in prison since 2021 and was released in July 2023 and they managed to arrest Onyango and charge him of attempt to kill Ayubu Athumani whose house was set in fire while he was inside. It was his opinion that the attempt to kill was a revenge because victim is Sungusungu in his area and he participated in arresting criminal. When cross examined, he failed to prove criminal cases neither IR files existing in connection to accused as the Criminal case number CC 289 of Page 6 of 19 2021 and that he was released on appeal. About the criminal case over the same crime, he informed this court that in 2022 case accused were Sabure, Saba and Keraryo the case was decided in June 2023 although he failed to remember number of case. He further clarified that police did not join accused herein because he was in custody concerning other criminal case. About the condition of the victim he testified that victim had scars in his body, specifically on hands but he don't remember other areas of the body. State Attorney had a chance to re-examine witness about the non-joining the accused in the previous case filed in 2022 this witness informed the court that police did not know accused whereabout till when he was released from prison in 2023. When ruled that he had a case to answer to the charge following the closure of the prosecution's case, accused person testifying as DW1 (Onyango Marucha Mwita) together with another witness raising the defense of alibi as he served the notice under section 194 (4) of the Criminal Procedure Act [Cap. 20 R.E. 2022]. He stated that in the years 2017 he transferred his family to Sirari in Tarime District where he rented in the house of Roza which is located at Sokoni area. By then he was employed in Page 7 of 19 rice mill industry. He stayed there up to 2020. About the fateful date which was 09/3/2019 he testified that the night of that day he was sleeping with his wife till morning. He went on informing this court that he was arrested on 07/08/2023 by police when he was at his home Matamankwe village and when he arrived at police he was informed of his allegation of attempting to kill Ayubu Athumani. Before arrest he said he was in Tarime prison as he was accused of armed robbery in criminal case number 39 of 2022. On that case, he clarified that he was arrested on February 2022 and I was released from prison on 17/07/2023. He denied to commit that offence of attempt to kill any person while denying to have relation with Ayubu Athumani apart from the truth that they are village mates. When cross examined by State Attorney, he confirmed that he was arrested in 2022 while the offence in this case was said to be committed in 2019 however, he clarified that he was informed of this offence in the year 2023 when he was arrested. About knowing the victim, he insisted that he don't have any relationship with him. Page 8 of 19 Accused person paraded his wife who testified as DW2 (Musuro Onyango Marucha) who testified that in 2019 he was living in Sirari with his husband, accused herein with their child. In cross examination she confirms her husband was previously a prisoner. Concerning the offence in this case she doesn't remember the day her husband was arrested but insisted he accompany her husband everyplace he goes or else she is informed when her husband went anywhere. Upon the close of the defense case, the learned counsel for both sides prayed for final submissions and were granted. Ms. Samson was of the submission that her client is charged of the offence of attempt to murder c/s 211(a) of Cap 16 that 09/3/2019 while at Matamankwe he tried to kill PW1. She submitted that prosecution paraded five (5) witnesses to prove the offence and had one exhibit which was PF 3. She attacked the testimony of PW1, a clinical officer who was supposed to prove extent of injury but she said he did not explain degree of injury sustained by the victim. She pointed contradiction on the extent of injury sustained by the victim, when PW1 testified that Victim was burned all over the body but when in witness box, victim himself said not all body and Page 9 of 19 when in court, victim was seen with scar in hands and failed to tender medical report of the functionality of his fingers as he complained his fingers are not working correctly. Defence counsel submitted on the delay to charge his client, referring to victim testimony that there was case concerning this crime which involve Saba and another which was tried and decided in 2023, she submitted that prosecution failed to give reason why they did not join accused in that case while he was under their custody. As confirmed by the Victim that accused was in prison but prosecution side failed to charge him till when he complained. She finally concluded that so far as there is doubts, this court has to find Republic failed to prove the offence beyond reasonable doubt. Nir. Mtitu, State Attorney submitted on behalf of republic that in proving the offence charged under section 211(a) and section 380 of Cap 16 there are four ingredients to be proved; intention to commit the offence of murder, readiness to prove how accused employ means to execute his intention, to prove overt act which manifest accused intention and the evidence proving intervening event which interrupt the accused from fulfilling the offence. He was of the submission that victim was eye witness who testified that he Page 10 of 19 saw accused outside of his house, he lock the door by outside and set a fire and PW2 and PW4 testified they saw fire outside the house, that is intention to commit the offence. Further, words pronounced by accused that if victim will not stop sungusungu activities they will kill him while exhibit Pl show victim had wounds. That show intention of accused to kill and DW1 and DW2 failed to prove their absence at the scene of crime. The intervening event as per State Attorney is when victim wake up and saw accused, he shouted and went outside with his family, that effort make accused to fail to kill him, he submitted. About other exhibits which were not tendered, he relied on holding in Sano Sadik and another vs Republic, Criminal appeal 623 of 2021 CAT at page 21 and 22 that failure to tender exhibit is not fatal and it cannot collapse prosecution case. He finalizes by insisting that Republic managed to prove the offence at the required standard. Having summarized the case's evidence and the brief submission by both sides, it is high time now to analyse if the prosecution managed to prove the offence against accused as charged. Page 11 of 19 The evidence of PW2, PW3 and PW4 is to the effect that the night of 09/3/2019 the house of PW2 catch some fire and as per testimony of PW1, victim was burned all over the body. PW5 while in court explained that victim was injured mainly on hands and declared he doesn't remember other parts of the body which he was burned. PW1 who was a clinical officer explained he was the one attended the victim that night who when cross examined about the degree of burn, he confirms he did not indicate in Exhibit Pl the degree of burn which may be used to assess the injury sustained by the victim. In their final submission prosecution maintained that they prove four ingredients of attempt to kill whereby, the victim was injured and the attackers lock his house from outside before they set fire. It has to be known that not every injury may cause death unless there is profession opinion which may be considered by court in analysis. The duty of an expert is to furnish the court with the necessary scientific criteria for testing the accuracy of their conclusions so as to enable the court to form its own independent judgment by application of these criteria to the facts proven in evidence. In Republic vs Kerstin Cameron [2003] T. L. R. 85. The Court went further to rightly hold that; Page 12 of 19 'since the evidence of an expert is likely to carry more weight than that of an ordinary witness, highest standards of accuracy and objectivity are required from him' See also Sylivester Stephano vs Republic (Criminal Appeal 527 of 2016) [2018] TZCA 306 (3 December 2018). In the case at hand, the fact that victim was injured and was locked from outside when the house was on fire alone is not enough to prove that he was in danger of death without expert opinion on that area. From the testimony of PW2, PW3 and PW4, there were seven people in the house which was said to be on fire and four people among seven were together with the victim in his room, none of prosecution witness testified that there was another person in that family who was burnt except the victim. That being not enough, PW2 testified that when he saw fire, he jumped over the wall to access way to his neighbour, who was not around, he returns and open the door which was locked and managed to took out his wife and two children whom he left in the room which ketch some fire. He found them safe. PW4 testified the same, that he heard the alarm and wake up only to find fire. He used door to go out while his uncle (baba mdogo) escaped over the wall. How did PW4 manage to pass over the door Page 13 of 19 safely while his uncle escaped fire through the wall. None of the other family members including three persons who were in the same room with the victim reported to have any wound. Was there a fire set to threaten the life of any person? Am aware that every witness is entitled to credence unless there are reasons for not according it as was in Allan Duller vs Republic, Criminal Appeal No.367 of 2019. In the circumstance of this case, PW2 and PW4 testimony is questionable. Let me analyse how victim identified accused. Victim who appeared as PW2 testified that he was suspicious over movement outside his house, he wakes up and flash outside by a torch via an opening in the top side of grill in his sitting room. From that torch flash, he managed to see seven people with gallon and they spread petrol on his door. My analysis is, the victim was not able to see when accused spread petrol in his door as he said they were four steps away and he only saw upper part. How was he able to see gallon while his vision was from the top part of the grill? When victim was cross examined on how he identified accused herein, he informed this court that he was in black jacket with bear head but was unable to explain his appearance at the lower part of the body as he declared he did not saw the whole body of accused, he only saw the upper part as he used the Page 14 of 19 opening at the top of the grill. This court finds that was a confession that victim vision was impaired and therefore cannot pass on the test set in the case of Waziri Amani vs Republic [1980] TLR 250. I am aware that PW3 and PW4 also confirm they saw fire. PW3 was on the move from her house to the house of the victim when she was slapped by a stick on her head is when she realized there were people in the compound. Under normal circumstance when a person is attacked, is under fear and could not manage to clearly identify who were those people. Besides, she testified she hear an alarm made by victim's wife, even victim testified there was alarm and people responded, there is possibility that those people responded from the alarm made. There no is plausible explanation that people found in the compound of victim's house went to set fire and not response from the alarm made as PW2 confirm he was taken to hospital by people who responded his alarm. This is a criminal case, for prosecution to win, they are supposed to prove it is the accused and not any other person who commit the said crime as is provided under section 3(2) of the Evidence Act, Cap 6 R.E 2022. The same position was analysed in Festo Komba vs Republic, Criminal Appeal No. 77 of 2015. My analysis shows there is possibility that fire was set by another people Page 15 of 19 other than those found in compound including accused who responded for rescue purposes. In final submission prosecution summitted that, words uttered by attackers that if 'victim will not stop sungusungu activities they will kill him' and the fact that he was injured suggests accused intends to kill the victim. In cases of this nature, words uttered must reflect action. PW5 testified that crime was a revenge by accused and his company for activeness of the victim in sungusungu activities. This assertion was not proved as when defence counsel cross examined PW5 he failed to mention pending cases which involve accused to suggest that he was among the criminals in that society which victim was fighting against. The principle is the same as provided under section 112 of Cap 6 that who allege must prove. See Abdul Karim Haji vs Raymond Nchimbi Alois and Another, Civil Appeal No. 99 of 2014. Another area for analysis is the delay to arrest and charge the accused. It is clearly explained by prosecution that the crime occurred in 2019 and three people were arrested and prosecuted in connection with the said crime of attempt to murder victim, Ayubu Athumani (hereinafter referred Page 16 of 19 as previous case). PW5 confirm there was a previous case, which was decided in the year 2023 concerning the same victim, PW2. It was the position of the prosecution, specifically PW5 that when previous case was in trial, accused here in was at large. However, during cross examination PW5 confess that accused was arrested in the 2022 in connection to armed robbery case and was in police custody (prison) when the previous case was filed, and he was arrested to face this case when he was released from prison. If that is taken to be proper position of the prosecution, that means, accused was known his whereabout when the previous case was filed but failed to join him. It is the testimony of PW2 that when he knew accused was in custody and was not joined to previous case, he complained to police and was told to wait till the armed robbery case complete. This is confirmed from the testimony of DW1 that he was arrested on February 2022 on allegation of armed robbery and was charged in criminal case number 39 of 2022 whereby he was released from prison on 17/07/2023 before he was arrested for this case. From testimony of PW5, accused was in police custody since year 2021. Assuming that was correct position, it means Page 17 of 19 when the previous case was in court to the time of its decision the accused herein was in prison, Tarime prison facing the armed robbery case. If at ail accused herein was among the accused previous case as presented by prosecution, why he was not joined in the previous case, what was special in armed robbery case that prosecution decided to wait for it to be decided. Is accused herein really involved in the criminal of attempt to murder by setting a fire on PW2 house? If the answer is yes, why he was not joined in previous case. The crime occurred March, 2019 and the accused here in was arrested on August 2023. There is a lapse of four years and five months. That is too much time for Republic to hold accused. The time lapse from the crime to the moment accused was arrested and charged, (four years) is too long and there is no justification for this delay bearing in mind that police knew accused was in their custody. This is omission on the part of the prosecution’s case leading to watering-down the credence of the case See Laurent s/o Rajabu vs Republic Criminal Appeal No. 270 of 2012. and Juma Antoni vs Republic, Criminal Appeal 571 of 2020. Page 18 of 19 I shall not waste time to analyse the defence by the accused as prosecution evidence itself created enough doubts to lower credence of this case. All being said and done, I find prosecution failed to prove the offence against the accused herein in the standard required which is beyond reasonable doubt. Eventually, I find ONYANGO MARUCHA MWITA not guilt and acquit him of the offence of attempt to murder contrary to section section 211(a) and 380 (1) of the Penal Code [CAP 16 R.E 2022]. Right of appeal is fully explained. M. L. KO MBA Judge 05th March, 2025 Page 19 of 20