JUDGMENT

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM CRIMINAL SESSION NO 10781 OF 2024 REF 202404232000010781: REPUBLIC VERSUS 1. KHALID MOHAMED KIWANGA ---------------------------------1st ACCUSED 2. ALLY SEIF MALINGA @BABU ALLY------------------------------2nd ACCUSED 3. SALEHE MRISHO SALEHE---------------------------------------3rd ACCUSED JUDGMENT: 17th March & 8th April 2025. KIREKIANO, J: Alex Papakinyi Laizer was a watchman at the shops situated at Lulanzi Kibaha District. One of the shop owners is PW7 Paulo Raymond Mlay. On morning hours of 28/03/2023, the said PW7 found out that there was robbery at his two shops, and several items were stolen. The watchman Laizer was not at the shops. When he wondered around what exactly happened, PW6 and others who responded to the scene looked around and found the said Laizer dead, tied in a tree and with several wounds at his body. In event of this heist, the report reached the police at Kibaha who responded to the scene, the deceased body was examined at Tumbi Hospital. The police believed the death of the said Laizer was associated with robbery 1 at the shops. Upon investigation and search of stolen items, the three accused person; Khalid Mohamed Kiwanga, Ally Seif Malinga @ Babu Ally, and Salehe Mrisho Salehe were arrested, associated with the seized items, and in particular the murder of the said Alex. The three are thus charged with the offence of Murder c/s 196 and 197 of the Penal Code Cap 16 [R. E. 2022]. The particulars of the information are that on 28/3/2023 at Lulanzi, Picha ya Ndege Kibaha and Costal Region the three accused did Murder Alex Papakinyi Laizer. All three accused persons pleaded not guilty to the information. In this trial, the prosecution was led by Mr. Said Seif, state attorney. The first accused was represented by Miss Hawa Turusia, the second accused was represented by Mr. Jamal Makala, while the third accused was represented by Miss Fatuma Hemed, a learned advocate. To prove the information, the prosecution side paraded eleven witnesses; PW1 SP Mganga Selemani Madali, PW2 Ast Insp. Clement Msokwa, PW3 Boniface Makoko, PW4 WP 3665 Sgt Mwamvita, PW5 G. 7543 CPL Elisha, PW6 Musa Ramadhani Musa, PW7 Paul Raymond Mlay, PW8 Insp Omary Madenge, PW9 Rajab Omary Mohamed, PW10 Malaki Migomba and 2 PW11 G1048 Dsgnt Oscar. As such, ten documentary and physical exhibits were tendered. In substance, the prosecution evidence is that, upon receiving a report of robbery and the death of the watchman Laizer, the deceased body was taken to the Tumbi Hospital by PW8 Insp. Madenge for post mortem examination. The body was identified by relatives as body of Alex Papakinyi Laizer. PW3 Boniface Makoko, a Clinical officer at Tumbi hospital, confirmed that the body was the body of Alex Laizer as identified by relatives, but also PW8. He examined the body and found that the deceased had a wound at the back of the head, a wound on his back and his arm was fractured. In his findings, he confirmed death, and the cause of death was a traumatic brain injury caused by the wound on the deceased's head. He tendered his findings in the post-mortem examination report (Exhibit P2). PW1 SP Maganga, the officer in charge of investigation at Kibaha, told this court that having learnt that the death of the deceased (Alex) was not natural, the investigation was conducted. On 28.3.2023, he went to the scene with his team, including PW8 and PW11 and several Exhibits were 3 collected at the scene, including a piece of block suspected to have been used to hit the deceased (P-3). Then the police arrested suspects; the first accused, Khalid, was the first suspect to be arrested. According to him, upon interrogation, he named the 2nd and 3rd accused persons. PW1 also took buccal swabs of the accused to ascertain their DNA relationship with the samples taken at the scene. It was his testimony that on 11.4.2023, the swab sample of the first, second, and third accused was taken for analysis after all had signed assurance forms (which were collectively admitted as (Exhibit P8). When cross examined by Miss. Fatuma for the third accused, he said he first accused was arrested by ASP Fadhili Namkolwa. PW7 Paulo Raymond Mlay one of the shop owners at the scene inspected his shop on 28/03/2023. Among items stolen form the shop were sugar, soap and others items, drinks Television and a television decoder. On 30.3.2023, the police went to the shop with the three accused persons to show the police how they broke into the shop and on 1.4.2023, he was asked to identify items stolen from his shop, which were allegedly seized from the accused persons. During his testimony, he identified a television and a 4 Decoder, a container used to keep mobile vouchers, money, and other items stolen from a shop (Exhibit P3). According to PW2 Ast. Insp. Msokwa was assigned to supervise the seizure of the stolen items. He said that on 30/3/2023, the three accused led the police to an area at Lulanzi. The police seized from them an Azam decoder cellphone owned by the deceased Soap and other items, according to Exhibit P1. As such according to the record of search and seizure (Exhibit P6) they seized a television form one Malaki Migomba (PW10). The physical exhibits seized were given to PW6 Sgnt Elisha. Acording to (PW6), since he was not a custodian of Exhibits, he gave the same to PW4 Sgnt Mwanvita for storage. PW8 Insp. Omary Mwinyi Madenge, was a District Forensic Officer. According to him, on 28.2023, he was one of police officers who went to the scene of crime. At this scene, collection of evidence was done. On his part, forensic swab was taken from handle of the pic axe; box container two sticks, and deceased body as found at the scene. The same were kept in two envelopes and were handled to PW4 Sgnt Mwanvita for storage. It was until 5 11.4.2023 when PW8 submitted the evidence by special form (Exb P7) to the Chief Government Chemist Laboratory Agency (CGCLA) for analysis. PW4 WP 3665 Sgnt Mwanvita the exhibit keeper confirmed to have received the swab samples from PW8 on 28.3.2023 and registered the same in Exhibit register (Exhibit P4). According to her, the same were marked KBA/1227/2023 and were kept for storage until taken to (CGCLA) on 11.4.2023 for analysis. Again on 30.3.2023, she received from Ast Insp Clemence (PW2) and Cpl Elisha (PW5) other physical exhibits; Television Sunflower Sugar, and another sulphate bag with different items, beer, decoder shampoo, cell phone and other items. She recorded the same in register with entry no 91 and 93. All the physical exhibits were tendered as Exhibit P3 as such the exhibit register was tendered as Exhibit P4. PW9 Mr. Rajabu Omary Mohamed, a chemist from CGCLA. He conducted the DNA test. According to him he received samples from the OC CID through PW8 Madenge, Kibaha the samples were received in ( Exhibit P7 ) which included the sample of the deceased (sample A) and nails of the deceased (Sample I), the sample from the container used to keep voucher 6 and money at the shop (Sample B), the sample from the handle of pick axe (Sample C) allegedly used to break to the shop, the sample from the two sticks allegedly used to hit at the deceased (Sample D), the sample of the three suspects, the first accused Khalid Mohamed Kiwanga (Sample E), Ally Seif Malinga second accused (Sample F) and Salehe Mrisho the third accused. (Sample G) plus the clothes of Khalid Mohammed Kiwanga (Sample H). According to the report of this witness, the DNA profile of Sample A was of a male Gender(deceased), and it did not match that of Sample H (the first accused's clothes), as Sample H. did not show any DNA profile results. He informed this Court that DNA profile of sample B, the container used to keep the voucher and money did not match with Sample E (buccal swabs of Khalid Mohamed Kiwanga (first accused), Sample F buccal swabs of Ally Seif Mlinga, (second accused) and Sample G Buccal swabs of Salehe Mrisho (3rd accused) He further testified that the DNA profile of Sample C (the pickaxe handle) matched that of Sample E (buccal swabs of Khalid Mohamed Kiwanga). At the same time, sample C did not match with sample F (buccal swabs of Ally Seif Mlinga, and Sample G (Buccal swabs of Salehe Mrisho). 7 Elaborating further, he testified that the DNA profile of Sample D (the two sticks allegedly used to hit the deceased matched with the ones found in sample buccal swabs of Ally Seif Mlinga, (the second accused) and Sample G buccal swabs of Salehe Mrisho (the third accused) and the same did not match with Sample E buccal swabs of Khalid Kiwanga the first accused. He said further that the DNA profile of Sample I (nails of the deceased) did not match with the DNA profile of Sample E (buccal swabs of Khalid Mrisho Kiwanga), Sample F (buccal swabs of Ally Seif Mlinga, and Sample G (Buccal swabs of Salehe Mrisho). He tendered his findings in DNA Exhibit P9. When cross-examined by Miss Turusia for the first accused, he said, The samples investigated were from the three accused: Halid Mohamed Kiwanga, 2. Ally Seif Malinga @Babu Ally 3. Salehe Mrisho Salehe. It is correct that there is no connection between the accused and the deceased It was evidence by PW6 Musa Ramadhan that on 28.3.2023, he met the second accused Babu Ally who gave him Pick Axe sururu told him that, he needed to keep his luggages there. The items Exbi P3 were collected by 8 Malaki (PW10). According to him he saw the said Malaki collecting the television from the said Babu Ally the second accused. On this fact the said Malaki Fredrick Migomba testified as PW10 he said on 28.2023, he met young man he named as Babu Ally, who told him he was selling Television and other items (Exhibit P3) In the meantime, PW6 was around. He took those items and kept it in his shop while he gave the television to his son. When arrested by police he told them that he purchased the same from Ally Seif Malinga and Said Mrisho. The police seized the items from him in (Exbi P6). It is noted here that this witness, when asked to make a dock identification of these people, confused the second accused with the third accused. The case was investigated by PW11DSgnt Oscar according to his observation, the deceased was beaten with a heavy object. The accused herein were questioned and admitted to police and lead them to discover the stolen items. He said he also inspected the scene of crime and sketched a map Exhibit P 10. In this sketch map the same shows where the police collected picked sticks, handle of Pickaxe (sururu) and the point where the deceased body was found. It is also indicated where the deceased body was found. 9 In sketching the map, he was led by a person who knew the area, who appear in Exhibit P11 as Mohamed Shaban Dilunga. Considering the statements of the witnesses he was convinced that the three accused were culprits because; they admitted to have committed the offence, they were seen in possession of he stolen items and that there was a DNA report, (Exhibit P- 9) which implicated them. On part of defence, all the accused defence was complete denial. DW1 Khalid Mohamed Kiwanga, he said he was once arrested charged and discharged with offence of murder. He was thus ordered to report to police at Kibaha periodically and tip the police about crimes or criminals. According to him, on he was arrested on 28.3.2023, because the police considered him disrespectful after he had gone to police station having consumed and carried a local brew. His line of defence was that the police did fix him in this case. He said he met PW10 Malaki at the station. He denied commission of the offence. On his part the second DW2 Ally Seif Malinga @Babu Ally said he was arrested on 29.3.2023; on allegation of wounding. While in custody he told the police that he was aware that he was accused of wounding, and he did recall that on 25.3.2023, he had an argument with one person named 10 Said, who owed him money. He said the police ordered him to sign some documents, they slapped him by bush knife, he told them they should not harm him further, he signed accordingly. On the other day, the police shot him at his leg by bullet and was given PF 3 (Exhibit D1) but did not get any cooperation from police to have the same filled after medication. He also denied the commission of the offence. The last defence witness was the third accused DW3 Salehe Mrisho Salehe. According to him, was arrested on 29.3.2023, at Kiluvya kwa Komba. After he was involved in road accident. He said there was argument, and exchanged words, it appears the person in the motor vehicle in which he was involved in accident was a police officer. He was kept in custody and the police did slap him by bosh knife. It was until on 16.5.2023 when he was taken to court, and heard that he was accused of murder. He said he never sold the alleged Television to PW10 nor led the police to discover the items. He also said he never gave DNA sample to police. Given both sides' evidence, to find conviction against the accused persons on the offence charged, all elements of the offence of murder under section 196 of the Penal Code must be proved beyond reasonable doubt. It is the law that the burden of proving the information lies on the prosecution. 11 In Republic vs Zilipa Makondoro (Criminal Session 63 of 2023) [2025] TZHC 394 (21 February 2025) and Mohamed Haruna@ Mtupeni & Another vs Republic, Criminal Appeal No. 25 of 2007 (unreported) it was held that; "Of course, in cases of this nature, the burden of proof is always on the prosecution. The standard has always been proof beyond a reasonable doubt. It is trite law that an accused person can only be convicted on the strength of the prosecution's case and not on the basis of the weakness of his defence." I also highlight here that, the standard in proving the information is beyond reasonable doubt, to borrow the words of my Sister Komba J, Republic vs Zilipa Makondoro (Criminal Session 63 of 2023) [2025] TZHC 394 (21 February 2025), ‘The prosecution evidence must be so convincing that no reasonable person would ever question the accused's guilt.” The elements of murder to be proved are; first, Alex Papakinyi Laizer is dead, second, his death was not natural but caused by an unlawful act. Third, it was the accused who did the unlawful act or omission, fourth, the death was caused with malice aforethought, that is to say, the act was intended to cause death or grievous bodily harm. 12 I will start with the aspect whether the said Alex Parkinyi Laizer is actually dead and if his death was not natural. There is no hard and fast rule on how to prove death. In this case, the evidence available, starting from the scene of the crime, there is evidence that the deceased body was seen by PW7 Mlay on 28.3.2023. PW7 knew the deceased as his watchman. This witness informed the police; both PW1 and PW8, Insp. Madenge confirmed to have taken the deceased's body for post-mortem. It was evidenced by PW3 Boniface Makoko that he confirmed the death of the said Alex, and according to his findings, the cause of death was traumatic brain injury. In the case of Republic vs Mtabi Daudi Luaga @ John Boxer "Trainer Boxer" (Criminal Session No. 9012 of 2024) [2025] TZHC 845 (14 March 2025) I cited, a persuasive Kenyan decision in Republic v David Morogoro [2017] KEHC 5361 (KLR) that where the body is available the normal and straightforward means of seeking to prove death and cause of death is by producing the post-mortem examination report and parade the Medical Officer who performed the postmortem examination. 13 This was done in this case as indicated above. There was evidence by the clinical officer PW3 Boniface Makoko, and his findings Post Mortem Examination (Exhibit P2), that he confirmed the death of the deceased and the deceased died because of a traumatic brain injury. There was no contentions evidence from the defense refuting this fact. Based on the foregoing, I thus find as a fact that the said Alex Parkinyi Laizer Alex is in fact dead and his death was not natural but caused by unlawful act injuring his brain. The other aspect is who was responsible for the death. It is clear from the evidence on record that there was no eyewitness to the unlawful act of wounding that ended the deceased's life. Reading from the prosecution evidence, which aims to incriminate the accused persons, the prosecution relies on the doctrine of recent possession, as well as DNA evidence. It is noted that the investigator PW11 stated that the accused were questioned and admitted to police, and led them to discover the items. I shall address these areas. I will start with the evidence proving recent possession. Before appreciating the evidence on record, it is worth noting that, to rely on the 14 doctrine, the prosecution is enjoined to prove cumulatively four aspect as stated in Magesa Chacha Nyakibali and Another v. R [2014] T.L.R. 387 but also Jackson John Marase @ Men & Another vs Republic (Criminal Appeal No. 152 of 2021) [2024] TZCA 240 (20 March 2024) thus; 1) The stolen property must be found with the suspect. 2) The stolen property must be positively identified as that of the complainant. 3) The property must have been recently stolen. 4) The property stolen must constitute the subject of the charge." I am aware that the accused persons in this case are charged with murder, which was associated with robbery, yet the doctrine may be applicable if tracing of the recovered properties could lead to the presumption that the person found with the properties was the murderer himself. This is the position stated in Kobelo Mwaha v. R [2010] T.L.R. 196 at page 197 that: "The position of the law is that recent possession of the property that had belonged to the murdered person raises the presumption that the accused was the murderer and 15 unless he can give a reasonable account of how he became possessed of the property, he could be convicted of the offence" Having appreciated the position of the law. I will start with the second aspect, whether the stolen properties were positively identified as belonging to the complainant in this case, PW7 Mlay, the shop owner. As indicated, there is evidence from PW7, Mlay, that the deceased was a watchman at his shop, and on the material date, when the said watchman was murdered, several items were stolen from his shop. The items allegedly recovered included a television, decoder and other foodstuffs sold at the shop, which were admitted as Exhibit P3. This witness identified the items as property stolen from his shop. As such, the fact that the deceased was a watchman in the area is cemented with the fact that the deceased's body was found at the scene. From the defence side there was no contention that the properties were not owned by PW7 Mlay. I am thus satisfied that the items Exhibit P3 were the properties of the shop owner PW7 Mlay. The other aspects aspect is whether the properties were in fact found in possession of the accused persons. I wish to recap here that the items 16 positively identified by PW6 are the television decoder and food stamp and shop items which were tendered as part of Exhibit P3. Was the accused found in possession of the items? There is evidence in Exhibit P6 that the police seized, among other items, from PW10 Malaki. Who, according to the prosecution, obtained the items from the second accused person? I have considered the evidence by PW10 Malaki, according to him, he received a television and other items from the second accused. However, his evidence was weak on three areas, one, while he said he met the second accused, Babu Ally, and in the company of the third, he could not make a dock identification of the said Babu Ally when he was led to identify the suspects at the dock. There are also discrepancies in the names of the person he said he purchased the items from, he said the other suspect was Said Mrisho, which is not the correct name of the third accused. Third, in his testimony he said; in his testimony he said he was seriously beaten by police while in custody he said: I was taken to Kibaha Police station, where I was beaten heavily along with others, including Musa, Muslim and others. Those other suspects told the police that they would kill me for nothing, i was innocent. 17 It is also on record that this witness was initially charged alongside the accused before his charge was dropped, only to remain a witness. With evidence on how he was beaten before the charges were dropped, he was certainly a witness of his kind with his interest to serve. It is a rule of practice that evidence of a person with interest to serve needs independent evidence to corroborate the same. In akin situation the court of appeal considered the Denis Geraz vs Republic (Criminal Appeal No. 10 of 2023) [2025] TZCA 196 (13 March 2025). It was held thus: It is glaring that indeed PW1 had an interest to serve his neck from the consequences of the fateful incident and thus opted to testify against the appellant. With such incredible evidence of PW1, it is highly unsafe to rely on it to pin down the appellant on the charged offence. The evidence in the certificate of seizure Exhibit P6 that police did the seizure in the presence of the local leader is also contradicted by PW10's version, who said, "The police indeed ordered me to sign the seizure. I know my local leader. Mzee Migomba was not present during the seizure; he had gone to the Mosque. It is alarming that PW2 indicated that the local leader was present, while PW10 refuted his presence. 18 Based on the reason stated above, I find the evidence provided by PW10, Malaki, that he purchased the items from the second accused to be unreliable and insufficient to connect the accused persons. The remaining evidence is Exhibit P8, the DNA examination report as tendered by PW9 Rajabu. This evidence is rooted in the testimony of PW1 SP MGANGA, PW8, and PW11. According to PW1, he took samples of the three accused persons, having signed the evidence submission forms (Exhibit P-8). According to the evidence by PW8 Madenge, the other samples were taken from the deceased's body and the items allegedly found at the scene. This includes a container used to keep money/ voucher and two sticks and handed of pickaxe allegedly picked at the scene of the crime (Exhibit P3) I have considered this evidence on two aspects: one, whether the same suggests that the accused persons were at the scene, and two, whether there is a link with the cause of death of the deceased. As shown in the summary of evidence, some of the samples did not match the samples of the accused person. What is worth is here it that DNA profile of Sample C (the handle of the pick axe) matched with Sample buccal 19 swabs of Khalid Mohamed Kiwanga(1st accused) and DNA profile of Sample D (the two sticks allegedly used to hit the deceased were matched with the ones found in sample buccal swabs of Ally Seif Mlinga, (the 2nd accused) and Sample G buccal swabs of Salehe Mrisho (the 3rd accused). All accused persons denied having given a sample for investigation. I have considered the evidence in the Assurance forms (Exhibit P8) and the very finding that there were samples of three accused. With that, I see no reason to doubt that a sample was taken from the three accused. According to PW9 Rajabu, he said the container was not touched by the accused. The question is whether the handle of a pickaxe and two sticks suggest that the accused were at the scene on the material date of the murder. It is to be noted here that the items that matched the accused samples were not positively identified by PW7 as stolen from his shop. The prosecution's case is that the same sticks and a pickaxe were used in a robbery at the shop. There is also evidence from PW6 that on 30.3.2023, the police visited the shop with the three accused persons to show them how they had broken into the shop. It is unclear why, having taken samples from the items at the 20 scene on 28.3.2023 and having the accused person in custody, from 28 and 29 March 2023, their corresponding swabs were not taken until after 11.4.2023. PW1 Madali explained that the delay was due to recording the caution statement, extrajudicial statement, and other stages of investigation, search, etc. The statements were not tendered. Although the samples match the exhibits, the credibility of this evidence as to whether they were at the robbed shops is affected by two circumstances: first, the fact that the accused were taken to the scene on 30.3.2023 as stated by PW7 before their samples were taken, and second, the delay in taking their corresponding buccal swab. On the second aspect, even with the matching evidence of DNA between the sticks and handle of the pick axe (P3) on one hand and the three accused on the other, the question remains if the same was connected with the cause of death of the deceased person. This court faced a similar situation in the case of Republic vs Miriam d/o Steven Mrita & Another (Criminal Sessions Case 103 of 2018) [2022] TZHC 1112 (9 March 2022) at page 131, where there 21 was no link between the knife allegedly used to kill the deceased which had matched the sample of the 2nd accused. This court found that without a DNA link to the deceased, it could not be concluded that the second accused used the knife to kill the deceased. In this case, the same scenario has presented itself, while the accused persons might have been in contact with the objects that are sticks and the handle of a pickaxe indicated, whether collected at the scene or elsewhere, there is nothing tangible to conclude that the sticks were used to kill the deceased. It was the evidence of PW9 Rajabu when cross-examined by Miss Turusia that there is no connection between the accused and the deceased. In the case of Miller v. Minister of Pensions (1947) ALLER 372 373, Lord Denning expounded on the degree of proof in criminal cases and stated in the following words: "That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof of beyond reasonable doubt does not mean beyond the shadow of doubt.." I commend the investigation's efforts to devise scientific evidence to trace the murderer; it is a fact that DNA evidence collected from a crime scene 22 can link a suspect or eliminate them from suspicion. The collection of this evidence should always consider the importance of addressing the fact in issue. Like a live circuit of facts, a chain of DNA evidence in murder cases should not be broken if the suspect is to be linked with the causation of death. Based on the above, the evidence in DNA analysis (Exhibit P8) as tendered by PW9 Rajab did not connect the accused persons with the unlawful act ending the deceased's life. Additionally, PW11 Oscar stated that the accused admitted committing the offence. This was also stated by PW1, that the first accused admitted and named others. With respect and in a few words. There was no such evidence of confession tendered to that effect. The last aspect to prove the offence of murder is malice aforethought, that is to say, the act was intended to cause death or grievous bodily harm. Based on the deliberation above, as it is not established who caused the deceased's death, I shall not put the accused person under scrutiny on this aspect. Before pen off, I wish to remark briefly on the complaint raised by the 23 third accused. In this case, all accused persons were arrested by the end of March 2023; the evidence of the third accused indicates that it was until 16 May 2023 when he was arraigned in court. It is noted here that the record of committal proceedings supports the date 16 May 2023. There are many decisions that have been made to the effect that such delays contribute to watering down the credibility of the investigation and prosecution case. While investigation complexities are appreciated, the call is made to the investigation and prosecution machinery to ensure that the suspects in custody are charged without delay. In conclusion, based on the preceding analysis, the three accused persons: Khalid Mohamed Kiwanga, Ally Seif Malinga @ Babu Ally, and Salehe Mrisho Salehe, are found not guilty of the offence of murder contrary to sections 196 and 197 of the Penal Code, Cap. 16. They are acquitted and set free, unless otherwise detained for lawful reasons. Dated at Dar es Salaam this 8th April 2025 24 A J KIREKIANO JUDGE COURT: Judgment was delivered in the presence of Mr. Said Seif, the learned state attorney who represented the Republic, and the three accused persons. Also present were Miss Hawa Turusia, advocate for the first accused, Mr. Jamal Makala, advocate for the second accused, and Miss Fatuma Hemed, learned advocate for the third accused. A J KIREKIANO JUDGE 8.4.2025 25