ZAKARIA MAGESA MREFU

THE UNITED REPUBLIC OF TANZANIA (JUDICIARY) THE HIGH COURT (MUSOMA SUB- REGISTRY AT TARIME) ORIGINAL JURISDICTION CRIMINAL SESSION CASE No. 59 OF 2023 (Referenced: 20230925000529025) THE REPUBLIC Versus ZAKARIA MAGESA @ MREFU JUDGMENT 20.11.2024 & 26.11.2024 Mtulya, J.: The accused in the instant case, Mr. Zakaria Magesa @ Mrefu was arraigned in this court for allegation of murder of Mr. Nyongo Mdomo (the deceased) contrary to sections 196 and 197 of the Penal Code [Cap. 16 R.E. 2022] (the Penal Code). The incident is alleged to have occurred on 30th August 2022 at Ruhu Village within Rorya District in Mara Region. In order to establish the case against the accused, the Republic had marshalled a total of five (5) witnesses, namely: Charles Wilson Opanga (PW1); Anthony Nyongo Athony (PW2); Theresa Juma (PW3); H. 9934 PC. Fredrick Samwel Malya (PW4); and H. 4658 D/Cpl. Said (PW5). The materials brought by the indicated prosecution witnesses, in brief show that the accused went at the deceased residence at night hours of 30th August 2022 and attacked him by use of a club on the fore-head to cause compressed fracture leading to death, whereas the defence had produced materials to display that the deceased was found by the accused at the accused's residence having sexual intercourse with the accused's wife hence a fight had erupted to cause an attack and death of the deceased. In order to appreciate the contents of the two (2) alleged versions produced by the parties in the case, the materials facts of the case are explained, albeit, in brief: Prosecution Witness Number Two (PW2) had testified that on 30th August 2022 at around 20:00 hours, he witnessed the accused attacking the deceased with a club on the fore-head at the accused's residence while uttering words that: nishakuzuia kutembea na mke wangu. In order to assist the deceased against the attacks from the accused, PW2 testified to have taken a hoe and started to threat the accused who then escaped the crime scene at Ruhu Village and Mara Region. According to PW2, after the attacks on the forehead, the deceased had fallen down and assisted him with first aid treatments and took measures to inform his mother and PW3 on the incident, before taking the accused to Kinesi Health Center (the centre) where the deceased was pronounced dead by medical doctor PW1. Regarding identification of the accused, PW2 had testified to have: known the accused since childhood as they are neighbours at Ruhu Village; witnessed the incident in five (5) human steps from his 2 resident's door to the crime scene; and seen him in a solar bulb of high intensity to light a distance of fifteen (15) human steps. PW3 on her part had testified to have been cell-phoned by PW2 and informed on the attacks of the deceased and went to the crime scene in morning hours of the next day, 31st August 2022 and found the deceased at his residence. According to PW3, he found the deceased with a wound on the fore-head and took him to the centre for treatment, but he was pronounced dead by PW1 at noon hours of the day. Witness PW1 on the other hand had testified to have admitted the deceased, treated him, examined his body and prepared post­ mortem report. According to PW1, he found the deceased with compressed fracture at the fore-head and the source of his death is traumatic brain injury. The post-mortem report of the accused, however, was protested admission by the defence side for want of consistencies of materials registered during committal proceedings. Regarding the arrest of the accused, PW4 was summoned and testified to have arrested the accused on 3rd April 2023 around 21:00 hours at his residence in Muriti area within Irangara Ward of Ukerewe District. According to PW4, the accused was detained at Muriti Police Post for the night and on the next day was transferred to Nansio Police Station for further steps in course of replying his allegations registered at Kinesi Police Station in Mara Region. 3 Criminal Investigation Police Office PW5 was summoned during hearing of the case to state his role in the case. According to him, he investigated the case by visiting the crime scene, the centre and recorded witnesses' statements of several persons, including PW1 on 31st August 2022. PW5 testified further that the accused was arrested at Muriti area in Ukerewe and was brought to Kinesi Police Station by Police Officer Safiel in order to reply the information of murder. In replying the materials brought by the Republic in the case, the accused (DW1) testified to have found the deceased having sexual intercourse with his wife at his residence on 30th August 2022 at 22:00 hours, when he was coming back at his residence from fishing activities. According to the accused, after such finding, a fight had erupted and it was the deceased who had strangled him to threat his life and in the course of self defence he took unknown weapon at mafiga area in his kitchen and attacked the deceased at the fore-head. The accused testified to have reported the incident to the Hamlet Chairman called Mr. Abubakar Somoni Mwita and on the next day he travelled to Ukerewe to take care his uncle's child who was in economic difficulties. According to the accused, the Hamlet Chairman, Mr. Mwita has already expired and he did not make any efforts to follow-up subsequent developments of the reported 4 incident to the Chairman. Scanning the totality of materials brought by the parties before the court in this case, it is certain that both parties are in agreement on two (2) issues, namely: first, unnatural demise of the deceased; and second, the accused was involved in the attacks against the deceased to death. The only question remained contested for this court to resolve is: whether the accused had killed the deceased with malice aforethought. The law which the accused is prosecuted with is enacted in section 196 of the Penal Code with its appropriate penalty in section 197 of the same law. Section 196 of the Penal Code was enacted with a specific intent to kill human being by use of the words: malice aforethought. However, the section has declined a definition of malice aforethought. The Penal Code, as whole, is also silent on the subject. However, section 200 of the Penal Code displays circumstances which may assist in ascertaining malice aforethought in certain doubted situations. In brief, the section provides that: an intention to cause death or to do grievous harm to any person [is the]...knowledge that the act or omission causing death will probably cause the death to a person or grievous harm to the person... The enactment was interpreted and stretched further in 1994 by the apex court in our jurisdiction, the Court of Appeal, in the precedent of Enock Kipela v. Republic, Criminal Appeal No. 150 of 5 1994 to cover seven (7) important circumstances to be the standard criteria in resolving contests related to malice aforethought. The precedent was confirmed, celebrated and the circumstances were held by the same court to be the standard practice in resolving malice aforethought contests in Tanzania in 2019(see: Charles Bode v. Republic, Criminal Appeal No. 46 of 2016). The decision in Charles Bode v. Republic (supra), at page 20 of the judgment, shows that: The decision of the Court in the case of Enock Kipela v. Republic, Criminal Appeal No. 150 of 1994, is very instructive when it comes to the question of ascertaining malice aforethought. The precedent of Enock Kipela v. Republic (supra), at page 6 of the judgment, shows in brief, that: ...usually an attacker will not declare his intention to cause death or grievous bodily harm. The intention of accused must be ascertained from various factors, including the following: the type and size of the weapon used in the attack; the amount of force applied in assaulting; the part or parts of the body where the blow was directed; the number of blows; the kind of injuries inflicted; attacker's utterance before, during or after the attacks; and conduct of the attacker before and after the attack. The materials facts in instant case shows that: the accused attacked the decease on the forehead; he landed one (1) grave 6 blow to the forehead; the blow caused compressed fracture which triggered traumatic brain injury, he uttered words before landing the attack, that nishakuzuia kutembea na mke wangu, and finally escaped the crime scene and Ruhu Village to another region. I am aware there are disputes in this case with regard to: first, the type of weapon used in the attack; second, where it was found by the accused; and finally, where it was landed in the deceased's body. The accused also disputed the crime scene to be at the deceased's residence. According to him, the incident had occurred at his home residence and he attacked the deceased with unknown weapon as he was in a fight. The accused may be correct and must be believed like any other witness, unless there are good reasons to fault his evidence (see: Goodluck Kyando v. Republic [2006] TLR 363], In the present case, however, the accused had declined to call any material witness in his family or village authorities to corroborate his story. I understand during hearing of the case, he cited Hamlet Chairman Mr. Mwita as his only witness and testified that the Chairman has already expired. The complaint of the accused was registered at the Hamlet Chairman as an authority, not Mr. Mwita as an individual person. The accused was supposed to make follow-ups of his materials complaints at the hamlet authority in Ruhu Village to display vigilance on his part. 7 Failure of the accused to make follow-up of the subsequent developments on his complaints at the hamlet authority and his efforts to escape the village for eight (8) months erodes his reliability and credibility. The accused cannot be believed even in his allegation that he attacked the deceased with unknown weapon at the unknown part of the body when they were in a fight at his residence. In practice, contests in this court are resolved after considering the totality of all materials produced during hearing of the case. Perusing the totality of evidence on record there is no room for more than one view as to the accused's malice aforethought. I am aware the accused's role is only to raise doubt to the prosecution case generally, and malice aforethought specially (see: Magendo Paul v. Republic [1993] TLR 219). However, in the instant case the materials brought by the Republic show that the prosecution case is strong and water tight as against the accused. The defences of provocation and self- defence brought in the case by the accused were invited to deceive this court (see: Edgar Kayumba v. D.P.P., Criminal Appeal No. 498 of 2017; Republic v. Keraryo Rhobi Busere & Another, Criminal Sessions Case No. 31 of 2022; and Republic v. Peter Ntingwa Peter, Criminal Session Case No. 184 of 2022). 8 The accused's materials on allegation of provocation at his residence, presence of fight between him and the accused at his residence, self-defence, reporting of the fight incident to the hamlet authorities and finally escaping his family and Ruhu Village for Muriti Village for almost eight (8) months without efforts in search of his rights, corroborate the prosecution case and establish malice aforethought on his part (see: Felix Lucas Kisinyila v. Republic, Criminal Appeal No. 129 of 2002; Salum Yusuf Liundi v. Republic, Criminal Appeal No. 26 of 1984; and Republic v. John Mbatira @ Mtuke, Criminal Sessions Case No. 181 of 2022). I am aware in the present case post-mortem report of the deceased was protested for admission. However, the parties in the present case are not in dispute on the death of the deceased. The available practice in this court and Court of Appeal shows that death may be proved by materials brought in the case by witnesses during hearing of the matter (see: Herman Faida v. Republic, Criminal Appeal No. 479 of 2019; Ghati Mwita v. Republic, Criminal Appeal No. 240 of 2011; and Republic v. Mesanga Mwita, Criminal Sessions Case No. 103 of 2022). In the instant case, the materials registered by witnesses PW1, PW2, PW3 and PW5 show that the deceased had actually expired. As indicated earlier in this judgment and taking consideration of totality of evidences produced in the case, it is vivid that the 9 prosecution has established its case against the accused as charged, per standards required in section 3 (2) (a) of the Evidence Act [Cap. 6 R.E. 2022] and decision in Said Hemed v. Republic [1987] TLR 117. In conclusion, I find the accused, Mr. Zakaria Magesa @ Mrefu, guilty to the information of murder of the deceased, Mr. Nyongo Mdomo, contrary to sections 196 and 197 of the Penal Code. Qr^eredraccor d i n g I y. AiRigh^^^e^jt^.the conviction explained to the parties. H. Mtfulya Judge 26.11.2024 This Judgment was pronounced in open court in the presence of the accused, Mr. Zakaria Magesa @ Mrefu and his learned Defence Attorney, Ms. Lilian Makene and in the presence Ms. Damary Nyange, learned State Attorney for the Republic. Judge i 26.11.2024 ANTECEDENTS Nyange: My Lord, for the Republic we have no previous criminal record of the accused. However, we pray this court to issue a sentence in accordance to the law to send a lesson to all those who take laws into their own hands. That is all My Lord. 10 F. H. Mtulya Judge 26.11.2024 MITIGATION Makene: My Lord, this accused was found guilty of the offence of murder contrary to section 196 of the Penal Code [Cap. 16 R.E. 2022]. The law on sentencing accused persons found guilty of murder does not have alternatives. In such case, we shall have no mitigations. F. H. Mtply. Judge 26.11.2024 Accused: My Lord, I was convicted for murder. However, I killed without malice aforethought. My Lord, since my arrest, I did not see my family members. My Lord, in that case it was impossible for me to summon my relatives and Chairman to testify in order to corroborate my defence. My Lord, I pray for a lenient sentence. That is all My Lord. . H. Mtulya Judge 26.11.2024 SENTENCING ORDER Mr. Zakaria Magesa @ Mrefu (the accused) was arraigned in this court for allegation of murder of Mr. Nyongo Mdomo (the deceased) ii contrary to sections 196 and 197 of the Penal Code [Cap. 16. R.E. 2022]. After registration of all relevant materials, the accused was found guilty to the information as registered contrary to sections 196 and 197 of the Penal Code. The learned minds of the parties and accused have registered antecedents and mitigations. I have considered the antecedents and mitigations. However, the enactment of section 196 of the Penal Code [Cap. 16 R.E. 2022] was followed by enactment of section 197 of the same Penal Code. Section 197 of the Penal Code was enacted in mandatory terms. It provides for death sentence for accused persons found guilty of murder without any substitutes. In the end, I am moved to sentence the accused to death by hanging. presence of the accused, Mr. Zakaria Magesa @ Mrefu and his learned Defence Attorney, Ms. Lilian Makene and in the presence Ms. Damary Nyange, learnecLState Attorney for the Republic. H. Mtulya Judge 26.11.2024. 12 prosecution has established its case against the accused as charged, per standards required in section 3 (2) (a) of the Evidence Act [Cap. 6 R.E. 2022] and decision in Said Hemed v. Republic [1987] TLR 117. In conclusion, I find the accused, Mr. Zakaria Magesa @ Mrefu, guilty to the information of murder of the deceased, Mr. Nyongo Mdomo, contrary to sections 196 and 197 of the Penal Code. Qr^eredraccor d i n g I y. AiRigh^^^e^jt^.the conviction explained to the parties. H. Mtfulya Judge 26.11.2024 This Judgment was pronounced in open court in the presence of the accused, Mr. Zakaria Magesa @ Mrefu and his learned Defence Attorney, Ms. Lilian Makene and in the presence Ms. Damary Nyange, learned State Attorney for the Republic. Judge i 26.11.2024 ANTECEDENTS Nyange: My Lord, for the Republic we have no previous criminal record of the accused. However, we pray this court to issue a sentence in accordance to the law to send a lesson to all those who take laws into their own hands. That is all My Lord. 10