HALIDI NTAMOYEPHURAHA

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA MURDER NO. 000005889 OF 2024 REPUBLIC .............................. COMPLAINANT / APPELLANT / APPLICANT VERSUS HARIDI NTAMOYE PHURAHA .............................. RESPONDENT / DEFENDANT JUDGMENT NKWABI, J 25/02 & 10/03/2025 When a body of a woman and a child were discovered buried under a shallow pit on the accused person’s shamba, the accused person was arrested for allegedly murdering the two persons whose bodies had started to decompose by the time they were discovered on 02/09/2024. Earlier, the accused person reported to the hamlet leader that his wife Ashura d/o Moshi and his son Alikiba s/o Khalid went missing since 27/08/2023 when she went out to fetch beans for stew. The hamlet leader advised him to keep on looking and give feedback on the matter. Meanwhile, the hamlet chairman, after being instructed by the police through the accused person, organized a group of Nengo villagers, who were to search in different areas within Kumkenga for the reported missing woman and child. A thorough search into the area led to discovery of a suspicious place near the farm house of the accused person. When the place was dug using a hoe, a human hand protruded. This prompted the relay of information to the police who responded by arriving at the scene while accompanied by two doctors. Upon their arrival, exhumation of the bodies started followed by examination of the two bodies which were then identified to be of Ashura d/o Moshi and Alikiba s/o Khalid. Subsequently, it was charged and alleged, in Court, that the accused person murdered Ashura d/o Moshi and Alikiba s/o Khalid on unknown dates between 28th August and 02nd September, 2023 at Kumkenga area in Nengo village within Kibondo district, Kigoma region. Following the accused person’s plea of not guilty, hearing commenced with the Republic being represented by Mr. Nestory Kuyula, Ms. Rehema Mpozemenya and Mr. Michael Karol, all learned State Attorneys. The accused person was represented by Mr. Elinisadi Msuya, learned advocate. Page. 1 Hon... JOHN NKWABI Twelve witnesses (12) were summoned by the prosecution and six (06) exhibits were tendered by the prosecution and admitted by this Court in the prosecution effort of the prosecution to prove the charge against the accused on both counts. The prosecution has the duty to prove not only deaths of the deceased persons, but also such deaths were unnatural. Moreover, the prosecution was the duty bound to prove that the accused person caused the deaths of the deceased persons with malice aforethought. The testimonies of Dr. Doreen Florean Mushobozi, PW.6 and Dr. Allen Christopher John, PW.7 that the each of the deceased person died an unnatural death were undisputed. On one hand, according to PW.5, Ashura d/o Moshi suffered severe traumatic brain injury that was caused by being struck with a heavy object with sharp edges. PW.6 on the other hand stated that the cause of death of Alikiba s/o Khalid was due to brain hypoxia, that is, inadequate supply of oxygen to the brain that was caused by strangulation. Both PW.5 and PW.6 tendered Exhibits P.1 and P.2, respectively, to corroborate that both the deceased persons died unnatural deaths. That too is corroborated by the defence of the accused person who stated in his defence that: “True Ashura was my wife while Alikiba was my son. Both of them are now dead. It is true their bodies were found buried in my farm. They met their death unnaturally. The deceased persons had been assaulted.” The issues that need be determined by this Court are whether it was the accused person who killed the deceased persons and whether he had malice aforethought to killing the deceased persons. I begin my deliberation with the 1st issue which is whether the accused person killed the deceased persons. On this issue, there is the prosecution evidence regarding the extra-judicial statement and what appears to be oral confession by the accused person to the local leaders (hamlet chairmen) in the presence of civilians. PW.8, Haman Kayandabila, the Justice of Peace recorded the extra-judicial statement of the accused person. According to PW.8, the accused person appeared before him and upon his initial observations and satisfaction that the statement was to be made voluntarily, he continued to recorded the extra-judicial statement of the accused person. The extra-judicial statement, Exhibit P.3, was later supplied to PW.12. In my scrutiny, the extra-judicial statement was recorded in accordance with the law as stipulated in However, the fact that the accused person was able to reveal where the second body was, shows that he voluntarily gave the information when he was questioned at the scene. As for the threats before taken to the justice of peace, the accused person has contradicted himself when he first said in a trial within a trial that he was taken by PW.12 to the justice of peace without mentioning the beatings while in the main case he stated that he was hit by the police with a club on his shoulders, back and legs before taken to the justice of piece. Such inconsistence makes it difficult to believe his allegation that he gave the extra- judicial statement under threats. The Justice of Peace complied in the steps stipulated in A Handbook for Magistrates in the Primary Courts Revised and updated in 2019 which were restated in Mashiku Kidesheni & Another v. Republic, Criminal Appeal No. 586 of 2017 of 2016, CAT, thus: “These steps are: 1. The time and date of his arrest. 2. Place he was arrested. Page. 2 Hon... JOHN NKWABI 3. The place he slept before the date he was brought to the Justice of Peace. 4. Whether any person by threat or promise or violence has persuaded him to give the statement. 5. Whether he really wishes to make the statement on his own free will. 6. That, if he makes a statement, the same may be used as evidence against him.” See also Pius Makeja v. Republic, Criminal Appeal No. 128 of 2022, CAT. The accused person re-assured the Justice of Peace that he was a free agent to record the extra-judicial statement and that it was not under force or threat. Let it be forgotten, at the earliest stage, I had rejected his complaint that it was recorded outside the prescribed time, I following the decision in Andius George Songoloka & 2 Others v. The DPP, Criminal Appeal No. 373 of 2017, CAT dated 29/07/2020 cited with approval the decision in Joseph Stehen Kimaro & Another v. Republic, Criminal Appeal No. 340 of 2015, CAT (unreported) where it was emphasized that: “In other words, unlike caution statements whose time to be recorded is prescribed under section 50 and 51 of the CPA, no such limitation is imposed in extra judicial statements, recorded before Justices of the Peace whose concern is to make sure that an accused person before him is a free agent and is not under fear, threat or promise when recording his statement.” The extra-judicial statement is corroborated by oral confession he made to the local leaders in the presence of civilians when he said, he buried the body of Alikiba under the body of her mother as I have stated above. I have held that stance under the authority of Daniel Thomas @ Yusuph @ Ngeni & Another v. Republic, Criminal Appeal No. 120 of 2022 CAT, 23/02/2024 where the Court of Appeal stated that: “We need to state that, in law, oral confession of guilt is as good as any other form of confession and is admissible. It can also be solely acted upon as the basis for conviction provided that it carries sufficient weight, and courts exercise great care before they rely on it. Like other forms of confession, its reliance must be preceded by putting the testimony under the test of voluntariness, consistent with section 27 (3) of the Evidence Act ... It must also have the quality of confession defined in section 3(1) (a), (b), (c) and (d) f the Evidence Act, in that it must contain an admission by the maker of the culpable role he played in the offence he is accused of.” Further, the discovery of the two bodies at the accused person’s farm gives a clue that he had a predominant purpose of hiding evidence and he took advantage of owning two houses. Where else would he bury those bodies without being easily discovered? His shamba was the best option for his devious mission. The place was favorable to the accused person because, as cross-examined in his defence, the neighbors are at a distance hence difficult for them to hear what was happening. Notably, when the woman’s body was discovered no one, except the accused person, revealed that the second body of a child was hidden underneath the woman’s lower back. In his defence, DW.1, the accused person, stated that his wife went to fetch beans for stew and could not return from 27/08/2023. DW.1 further fended that he was forced by his brother-in-law, PW1., and nearly 150 villagers to agree to anything he would be asked by the police at the scene where bodies were found. According to DW.1 the case against him is fabricated and that he was deceived by PW.12 that if he makes an extra-judicial statement the Page. 3 Hon... JOHN NKWABI magistrate would set him free afterwards. He also mentioned that he was hit by the police with a club on his shoulders, back and legs when he was being taken to the Justice of Peace. The accused person essentially distanced himself from the offences, suggesting that the deceased persons might have been killed by other persons. With the available evidence on the prosecution, I do not accept his defence. His defence is just lame. DW.2 who admitted that the accused would not tell her everything and every of his movements cannot prove that the accused person is not responsible for the killing of the deceased persons. Admittedly, the accused person cannot be convicted on the weakness of his defence as stated in Anthony Kinanila & Another v. Republic, Criminal Appeal No. 83 of 2021 (unreported) on arriving at a conviction not solely on the weakness of the defence: “in any criminal trial, the accused person must not be convicted because he has put forward a weak defence but rather the evidence led by the prosecution incriminates him to the extent that there is no other hypothesis than the fact that the accused person committed the offence with which he stands charged. That in brief is what is called proof beyond reasonable doubt which is the responsibility cast on the prosecution side.” See also Mohamed Haruna @Mtupeni & Another v Republic, Criminal Appeal No. 259 of 2007 (unreported). As earlier indicated, the accused person’s extra judicial statement is realistically detailed to the point that it does not suggest involuntariness in making it. Further, the extra-judicial statement has some information only a person responsible for the deaths of the deceased persons would know. In fact, the Justice of Peace, PW.8, formed an opinion that the accuse person gave his statement in a good health and mind. Having considered all the prosecution evidence and being mindful of the accused person’s defence, I am satisfied that the accused person killed both the deceased persons. The 1st issue is answered in the affirmative. Finally, I consider the issue of malice aforethought by the accused person, it is worth noting the conditions stated in Enock Kipela v Republic, Criminal Appeal No. 150 of 1994 (unreported) CAT whereby, among other things, the Court stated that: “…usually an attacker will not declare his intention to cause death or grievous harm. Whether or not he had that intention must be ascertained by various factors including the following; The type and size of weapon used, the amount of force applied, part or parts of the body or blow or blows are directed or inflicted on, the number of blows although one blow may be sufficient for this purpose, the kind of injuries inflicted, the attacker’s utterances if any made before or after killing, and the conduct of the attackers before and after killing” The post-mortem reports illustrate how the deceased persons met their fate. Ashura d/o Moshi cause of death is hemorrhagic shock resulted by severe traumatic brain. She had sustained two wounds on her head. The body of Alikiba s/o Khalid was examined and found with broken neck bones which suggests that he was strangled. The findings on respective post-mortem reports, it is my finding that, are enough to deduce malice aforethought. At the Page. 4 Hon... JOHN NKWABI time of killing the deceased persons, the accused person had the requisite malice aforethought. The 2nd issue is answered in the affirmative. Consequently, proceed to convict the accused person for the offence of murder contrary to sections 196 and 197 of the Penal Code, Cap. 16 R.E 2022. That is on both counts concerning Ashura d/o Moshi and Alikiba s/o Khalid respectively. It is so decided. DATED at KIGOMA this 10th day of March, 2025. PREVIOUS RECORDS Ms. Mpozemenya: The convict is the first offender. We pray for severe punishment to address the offences, given the nature of the offence the convict is charged with. The murdered persons would be of assistance to the nation. That is all. MITIGATION Mr. Msuya: I pray for a lenient sentence for the following reasons: 1. The convict is the first offender. 2. The convict is remorseful of the offence. He is a person of good character. 3. He has a family which depends on him of nine children. They depend on him. The accused person used to love his dead wife. That love was too stated by DW.2. The family still needs him. 4. That is all. SENTENCE Court: There is only one punishment for the offence of murder, that is, sentence to suffer death by hanging. As such I condemn the convict namely HARIDI NTAMOYE PHURAHA to death by hanging in terms of section 197 of the Penal Code Cap. 16 R.E. 2022 for killing with malice aforethought Alikiba Khalid, who is the subject of the 2nd count on the charge sheet. I would not give sentence on the 1st count. It is so ordered. J. F. NKWABI JUDGE Page. 5 Hon... JOHN NKWABI Court: Judgment and sentence delivered this 10th day of march, 2025 in open Court. J. F. NKWABI JUDGE Court: Physical exhibit be disposed of in accordance with the law. J. F. NKWABI JUDGE Court: Right of appeal is explained. J. F. NKWABI JUDGE Dated at KIGOMA this 10th of March 2025 . J. NKWABI JUDGE OF THE HIGH COURT Page. 6 Hon... JOHN NKWABI