kelvin silivesta mwikanu

IN THE HIGH COURT OF TANZANIA DODOMA SUB - REGISTRY AT DODOMA CRIMINAL SESSION CASE NO. Ill OF 2023 REPUBLIC VERSUS 1. KELVIN SYLVESTER MWIKANU 2. MTEGA LAMECK CHIKWAWA JUDGMENT 25th February & 28? March, 2025 MUSOKWA, J. The accused persons herein are charged with the offence of murder contrary to sections 196 and 197 of the Penal Code, Cap. 16, R.E. 2022 (Penal Code). The particulars of the offence provide that on 26th March, 2023 at Kolongo area in Mwanakianga Village within Mpwapwa District in Dodoma region, the accused persons did murder one Yusto s/o Gaitan Malogo (hereinafter referred to as deceased). i According to the records, the deceased was suspected to have stolen some money from the two accused persons and one Furaha Lameck, who was at large. Further facts provide that the aforementioned persons traced the deceased, and after they found him, they carried him away to a deserted place where they started assaulting him until he lost consciousness. Thereafter, they informed a sister of the deceased and her husband, on what had transpired. They also disclosed the location of the incident. The relatives of the deceased made their way to the crime scene and found the deceased in a terrible condition. In assessing the situation, they beseeched the assaulters that the matter should be handled by the police instead. The group of people, comprising of the relatives of the deceased, one Furaha Lameck, and the accused persons, left the crime scene and headed to the police station where they received the Police Form No. 3 (PF3) to facilitate the medical treatment of the deceased. However, upon arrival at the hospital, the deceased had already passed away. Following the plea of not guilty that was entered by each of the accused persons, the prosecution case commenced. The Republic was represented by learned state attorneys, Mr. Francis Kesanta and Ms. Victoria Njau. The 2 1st and 2nd accused persons were duly represented by learned advocates Mr. Fred Kalonga, and Mr. Meshack Ng'amando, respectively. The 1st prosecution witness (PW1), gave his testimony as follows: PW1 stated that he used to live with the deceased who, at the time, was a student at Mwanakianga Secondary School. This witness recalls that on 26th March, 2023 at 18:00 hours, he was at his home, when one Furaha Lameck accompanied by another person went to PWl's house. They were on a motorbike and were looking for the deceased, however, the deceased was not at home. The duo claimed that the deceased had stolen from them the sum of TZS 80,000/- then, they left. After the lapse of a few hours, at around 20:00 hours, PW1 used his mobile phone to call Furaha Lameck, who informed him that they had not yet located the deceased. At around 21:00hours, PWl's wife made the call again to Furaha Lameck. The call was picked and, in the background, voices were heard and it appeared that there was a fight going on. Furaha Lameck stated that him and his colleagues had found the deceased and that they were with police officers. At around 22:00, PW1 made another call using his wife's mobile phone, whereby Furaha Lameck again picked the call and informed PW1 that the incident was taking place at a trench, known as Korongoni kwa Mmasi. Furaha 3 Lameck further stated that the deceased was pretending to have fainted. PW1 called another brother-in-law, namely Remi who went with his motorbike to pick PW1 and his wife, and the trio headed to the crime scene. PW1 further recalled that as they were approaching the crime scene, he saw from a distance a group of people beating up someone, but as the trio approached closer to the crime scene, the assaulters stopped beating the said person. PW1 stated further that there was moonlight, and as they approached the crime scene, he was able to identify Furaha Lameck and the two accused persons herein. PW1 identified the person who was being beaten, to be the deceased. The assaulters were attacking the deceased using their fists and they were also kicking him. At the time, the deceased was unable to speak. It further appeared that his clothes were wet. PW1 requested that they take the deceased to the hospital. His request was accepted by the assaulters and the motorbike of the 2nd accused person was used to transport the deceased to the police station. Upon arrival at the police station, Furaha Lameck fled. The relatives of the accused found a police officer named Richard at the police station who assisted them with a PF3 and the deceased was taken to Mpwapwa District 4 Hospital where it was found that the deceased had already passed away. Thereafter, the accused persons were detained by the police. The prosecution paraded the 2nd witness (PW2) namely D.6574 Corp. Richard. PW2 testified that on 26th March, 2023 at around midnight, he was at the police station with WP 13474 Sofia when the two accused persons, the deceased, and two other persons arrived at the police station. The accused persons were accusing the deceased of stealing from them. The deceased was in a terrible condition and he could not walk by himself. PW2 issued them with the PF3 and directed them to take the victim to the hospital. After about half an hour later, it was reported that the victim had passed away so a murder case was registered and the accused persons were detained. In cross examination, PW2 stated that he does not recall the time of the arrest. Also, PW2 admitted that he did not visit the crime scene and that he was not the one who interrogated the accused persons. PW3, was a medical doctor stationed at Mpwapwa District Hospital. This witness testified that on 28th March, 2023 at around 10:00 hours while he was on duty, he was approached by a police officer and tasked to conduct 5 the autopsy of the deceased. PW3 conducted the post-mortem examination in the presence of the police officer and a relative of the deceased. PW3 observed that there were bruises, and a dent, on the left side of the deceased's head. Further, that the insides of the eyelids had a deep dark blue colour. The chest which also had bruises, had the same dark blue colour, indicating blood clotting. There were further bruises on the hands and legs of the corpse. According to PW3, the cause of death was skull fracture that resulted in, intra cranial hemorrhage. PW3 completed the post­ mortem examination report and handed it over to the police officer who was present during the exercise. Finally, the post mortem examination report dated 28th March 2023, was admitted without objection from both accused persons and marked as" Exhibit PE 1." PW4, named F. 1759 D/SGT John, an investigation police officer at Mpwapwa Police Station, was the 4th prosecution witness. It was stated that in the early hours of 27th March 2023, PW4 was at his duty station. On the said date, PW4 was directed to head to the crime scene, in order to conduct an investigation of this matter. Being guided by a relative of the deceased, and accompanied by a colleague, namely WP Rudia, PW4 drew a sketch map of the crime scene, the location was Ng'ambo hamlet within the village of 6 Mwanakianga. The specific place where the incident took place is at a trench (korongo) whereby water flows during the rainy season. The sketch map of the crime scene dated 27th March, 2025 was admitted as Exhibit PE 2 to form part of PW4's evidence. Another witness, PW5, namely WP 11027 D/Corporal Rudia also a police officer stationed at the investigation department at Mpwapwa Police Station, testified before this court. PW5 stated that in the morning hours of 27th March 2023, he was tasked to investigate the instant case. The crime scene was at the trench located at Kikombo, in Ng'ambo hamlet and Mwanakianga Village. At the time, the accused persons were already in the custody of the police. PW5 interrogated the accused persons, both denied the charges against them. Thereafter, PW5 proceeded to the crime scene together with PW4 for further investigation including drawing of the sketch map, which was done by PW4. PW5 also took part in coordinating the autopsy exercise which was conducted at the Mpwapwa District Hospital on 28th March 2023, and witnessed by a relative of the deceased. According to PW3, the medical doctor who conducted the autopsy, the cause of death was fracture of the skull, as a result of beating with heavy object. After completing the 7 investigation, PW5 prepared the case file and submitted it to the Office of the National Prosecution Service. In cross-examination, PW5 admitted that the sketch map did not specifically indicate the location of the crime scene as Ng'ambo but rather indicated that the crime scene is located at Mpwapwa Township, in Mpwapwa Ward. However, PW5 attempted to explain that both Ng'ambo and Mwanakianga are in Mpwapwa Township. To be precise, the crime scene is at Kikombo, Ng'ambo Hamlet, in Mwanakiaga village, Mpwapwa Ward, Mpwapwa District, region of Dodoma. PW5 further admitted that the motorbikes which were allegedly seen at the crime scene were not seized by the police. Further that, the mobile phone which was allegedly used by one Furaha Lameck to communicate with the relatives of the deceased on the material date, was also not seized, neither was proof of the said communication procured or tendered before this court. Thereafter, the prosecution had no more witnesses and prayed to close their case. Upon the closure of the prosecution case, this court acting under section 293(2) of the Criminal Procedure Act, Cap. 20 R.E. 2022 (CPA), made a ruling 8 which found both accused persons with a case to answer. Accordingly, this court informed the accused persons of their rights under the cited provision. The accused persons, opted to give their evidence on oath without calling any other witnesses. For the defense case of the 1st accused person, he was the sole witness, designated as DW1, and he gave his testimony under oath. DW1 testified that on the night of 27th March 2023, he was at the Mpwapwa bus stand, where he parks his rental motorbike (bodaboda). A customer approached him requesting for transport to take him to the Mpwapwa Police Station. DW1 left the bus stand and headed to the police station with his customer, who, upon arrival at the destination, requested that DW1 should wait for him to complete his business. DW1 waited outside for a few minutes but he then decided to go inside the police station to request his customer to pay for his trip so that he may proceed to go and fetch other customers. DW1 approached the counter where he found two police officers. To his utter surprise, the police officers detained him. This witness testified, that he noted that his customer had been detained in another room. DW1 was detained for two days, and on 29th March 2023, he was arraigned before the subordinate court together with his customer being faced with murder 9 charges. DW1 further stated that prior to that day, he was unaware of the customer's name but it was before the subordinate court that he found out that his customer was named Mtega Lameck (the 2nd accused). DW1 vehemently rebutted the testimony of PW1 who alleged that upon arrival at the crime scene, he was able to identify DW1. Testifying further, DW1 stated that PW1 failed to adduce evidence to prove his allegations. Further that, the motorbike whose headlights allegedly provided sufficient light during those night hours to enable the identification of DW1, was never seized by the police and was never tendered before the court as an exhibit. DW1 further stated that neither of PWl's relatives who allegedly accompanied him to the crime scene, were summoned to testify before the court in order to corroborate the testimony of PW1. In addition to the foregoing, DW1 contended PWl's testimony for reason that, PW1 stated that the location of the crime scene was Ng'ambo, while the information reads Mwanakianga. Accordingly, those are two different villages. DW1 also attacked the testimony of PW4, namely F. 1759 D/SGT John, for reason that the sketch map indicates that the crime scene is located at Mpwapwa Township, in Mpwapwa Ward; which contradicts PWl's testimony 10 that the incident took place at Ng'ambo. On the other hand, the information provides for the location of the crime to be Mwanakianga. DW1 further observed some discrepancies between the sketch map that was read out before the court during the committal proceedings, in comparison with the sketch map that was tendered before this court. In conclusion, DW1 stated that there were some irregularities in the procedures pertaining to the handling of suspects as he was not interrogated by the police. Lastly, DW1 prayed that this court should find him innocent and accordingly acquit him. During cross-examination, DW1 admitted that in his testimony, he did not state the time he was hired by his customer, neither did he state the time of their arrival at the police station. Further, he did not inform the court of his whereabouts on 26th March, 2023 between 20:00 hours to 00:00 hours (midnight). DW1 further admitted that there was no objection from the defense on the admission of the sketch map before the court as an exhibit. The defence case for the 2nd accused person was also heard, whereby he gave his testimony under oath, as DW2, and had no other witnesses apart from himself. This witness claimed that on 27th March 2023, he was at his business premises, being a small local bar. It was close to 1:00am, when li he received a phone call from a police officer named Richard. The said police officer was calling from Mpwapwa police station, requiring DW2 to report to the police station. After the call, DW2 engaged a bodaboda driver to take him to Mpwapwa police station. At the police station, there were a total of five police officers including Richard, who informed DW2 that they were looking for someone by the name of Furaha Lameck. Further that, the police officers were informed that the said Furaha Lameck was DW2's younger brother. In response thereto, DW2 stated that he does not know anyone by the name of Furaha Lameck. According to DW2, the police officers were angered by his response and soon thereafter, police officer Richard ordered that DW2 be detained for the night. The following morning, DW2 was questioned again on the whereabouts of the said Furaha Lameck and he maintained his initial response. DW2 further testified that on 29th March, 2023 he was arraigned before the subordinate court. Surprisingly, he was placed at the dock together with the ' bodaboda'dr'wer whom he had hired to transport him to the police station. Further that he only came to know the name of the said bodaboda driver while in court. While at the subordinate court, he also realized that he was 12 faced with murder charges, in connection with the deceased. DW2 strongly rebutted the entire testimony of PW1 who alleged that he found DW2 at the crime scene on the material date. Similarly, DW2 stated that the testimony of PW1 was not corroborated by the persons he alleged had accompanied him to the crime scene. Further that, PW1 failed to tender evidence before the court to substantiate his assertations on the phone call he received from one Furaha Lameck. Likewise, in the said communication, there had been no mention of either the 1st or the 2nd accused persons. All in all, DW2 stated that Furaha Lameck was a material witness who ought to have been summoned by the prosecution to testify, together with the police officer whom he alleged he was with, at the crime scene, on the material date. DW2 also raised arguments similar to those of DW1 on the variation in the records, as regards to the location of the crime scene, as indicated in the information, and in the sketch map respectively. At the end, DW2 prayed that this court should find that the case has not been proven to the required legal standard and consequently to acquit him. In response to the cross-examination, DW2 agreed that his testimony did not cover the time period between 26th March, 2023 from 18:00hours to 23:00hours, being the time within which PW1 alleged to have found the duo 13 at the crime scene assaulting the deceased. DW2 agreed further that in his entire testimony, there was no mention of the mobile number of police officer Richard, whom he alleged had summoned him to the police station. Similarly, DW2 did not dispute the fact that he did not tender before the court either a business licence or TIN certificate of his alleged business. Having analyzed the evidence given by the prosecution and the defence side, this court is required to determine whether the offence of murder is established to the required standard. In order to prove the offence of murder under section 196 of the Penal Code, the prosecution must cumulatively establish necessary elements beyond reasonable doubts as follows: - a) That, it was the accused persons who actually caused the unnatural death of the deceased or it is the accused persons who killed the deceased; b) That, the killing was by committing an unlawful act or omission; and c) That, the killing of the deceased by the accused persons was actuated with malice aforethought. See the case of Republic vs Marko Kivamba, Criminal Session Case No. 55 of 2018, [2021] TZHC 9250 (29th November, 2021: TanzLII). 14 Starting with the first element, on whether or not the accused persons caused the death of the deceased, I will test it by making reference to the evidence adduced before this court. The evidence of PW1 is that on 26th March, 2023 at 18:00 hours, while at his home, Furaha Lameck accompanied by another person went to PWl's house looking for the deceased. The duo claimed that the deceased had stolen from them the sum of TZS 80,000/-. Later, at around 22:00, PW1 made another call to Furaha Lameck who confirmed that they had found the deceased and that the incident was taking place at a trench, known as Korongoni kwa Mmasi. PW1 took steps to visit the crime scene and stated further that there was moonlight. As he approached the crime scene, this witness was able to identify Furaha Lameck and the two accused persons herein. PW1 further identified the person who was being beaten, to be the deceased. The assaulters were attacking the deceased using their fists and they were also kicking him. Subsequently, the motorbike of the 2nd accused person was used to transport the victim to the police station. PW1 was accompanied by the 1st and 2nd accused person, and Furaha Lameck, who fled while at the police station. Unfortunately, the victim of the assault was pronounced by the hospital to be dead soon thereafter. According to PW3 who conducted 15 the post-mortem examination, the cause of death was skull fracture that led to intra cranial hemorrhage. Therefore, the evidence of PW1 and PW3 indicate that the death of the deceased was unnatural. The evidence of PW1, in some respect corroborated the evidence of PW2 who testified that on 26th March, 2023 at around midnight, he was at the police station with WP 13474 Sofia when the two accused persons, the deceased, and two other persons arrived at the police station. The accused persons were alleging that the deceased had stolen from them. The deceased was in a terrible condition and he could not walk by himself. PW2 completed a PF3 and directed them to take the victim to the hospital. After about half an hour later, it was reported that the victim had passed away. Generally, the record is clear and indicates overwhelming evidence of both accused persons participating in assaulting the deceased. Thus, the first element is answered in the affirmative, in that the 1st and 2nd accused persons assaulted the deceased, and caused the death thereof. The second element is on whether the killing by the accused persons was by unlawful act. As indicated earlier, the evidence of PW1 and PW2 indicates that the 1st and 2nd accused persons suspected the deceased to have stolen 16 TZS 80,000/-; resulting in the fight and assault against the deceased. Undoubtedly, the Penal Code prohibits any person to assault or kill another person, as evidenced by the charges herein against the accused persons. Prudently, the 1st and 2nd accused persons ought to have reported the matter to the responsible authorities for a due process. Accordingly, I answer the 2nd element in the affirmative. The third and last element is whether the killing of the deceased by the accused persons was actuated with malice aforethought. Section 200 of the Penal Code provides for circumstances in which malice aforethought may be inferred. Also, in the case of Enock Kipela vs Republic, Criminal Appeal No. 150 of 1994, [1999] TZCA 39, (10th June, 1999: TanzLII), the Court of Appeal of Tanzania (CAT) deliberated on the said circumstances, and it was partly held as follows: - "Usually, an attacker will not declare his intention to cause death or grievous bodily harm. Whether or not he had that intention must be ascertained from various factors, including the following: (1) the type and size of the weapon, if any, used in the attack; (2) the amount of force applied in the assault; (3) the part or parts of the body, the blow or blows were directed at or inflicted on; (4) the number of blows, although one blow may, depending upon the facts of the particular case, be sufficient for this purpose; (5) the kind of injuries inflicted; (6) the attacker's utterances, if any, made before, during or after the killing; and (7) the conduct of the attacker before and after the killing." 17 However, the evidence available on record indicates as follows: First, it was testified that the accused persons, in assaulting the deceased, had no weapon but they used fists and were kicking the deceased. Second, it is the motorbike of the 2nd accused person which was used to transport the deceased to the police to procure the PF3 for onward medical attention. Third, the 1st and 2nd accused persons accompanied the deceased along with PW1 to the police station and they were detained thereafter. Fourth, the source of the assault was the allegation of theft of TZS 80,000/- by the deceased. Fifth, there is no evidence that was adduced by the prosecution to establish if at all the accused persons uttered any words in the course of assaulting the deceased. Sixth, the beatings or assault was not directed to a specific part of the deceased's body, rather it was random. Evidently, the evidence narrated above does not fall within the scope of the case of Enock Kipela (supra), to establish malice aforethought. For the purpose of emphasis, the accused persons showed cooperation immediately after the incident, such as the use of the motorbike of the 2nd accused, and accompanying the deceased to the police station. This indicates that they had no intention to kill the deceased. In the CAT case of Six Ilanga @ 18 Msaka vs Republic, Criminal Appeal No. 484 of 2020, [2024] TZCA 95, (23rd February, 2024: TanzLII), it was held that: - "Fourth, the conduct of the appellant after the event, that he remained in his house until when he was arrested, indicates that, he had no intention to kill the deceased; fifth, the appellant after the assault, he did not leave the deceased in the crime scene rather took him to a place where he could presumably be attended... in the light of the above, the trial Magistrate ought to have convicted the appellant of a cognate offence of manslaughter.[emphasis added] Equally important, the source of assault was the allegation of theft of TZS 80,000/- by the deceased. In the circumstances of this case and considering the evidence of PW1 and PW2, the said allegations prompted the incident in question leading to the death thereof. In relation to this point, the case of Six Ilanga @ Msaka (supra) held as follows: - "It is also evident from the oral dying declaration of the deceased, that he stole a bicycle of the appellant and sold it for TZS. 60,000/=, we cannot dismiss the possibility that such theft might have triggered the beating of the deceased. Therefore, considering the entire evidence on record, goes to establish lack of malice aforethought to kill the deceased. In the circumstance of this appeal, we think, it is not safe to infer malice aforethought." [emphasis added] 19 It follows therefore that the third element is answered in the negative. Indeed, the accused persons had no malice aforethought to kill the deceased. Regarding the defence, the accused persons have almost a common defence. DW1 is allegedly the bodaboda driver. On the other side, DW2 was the customer whereby on 27th March 2023, he engaged DW1 for a trip to Mpwapwa police station. It was stated that DW2 was attending a call by a police officer namely Richard. Upon arrival at the police station, DW1 took some minutes to wait for his customer because he was not paid his fare. But DW2 took sometime in the police station because he was under interrogation by the police regarding the whereabouts of Furaha Lameck who was at large. Upon a follow up by DW1 in the police station, he was detained. Likewise, DW2 was detained but in a different room. On 29th March 2023, the accused persons were taken to the subordinate court facing murder charges. During cross examination, the accused persons admitted to have failed to testify on their whereabouts on the material day, 26th March, 2023 at around 20:00 hours. Truly, the date of the incident is a crucial aspect in the information or charge. Thus, the accused persons ought to have centered their defence on the particulars of the information. Additionally, it is illogical 20 for the driver of a bodaboda and his customer to be jointly accused of the same charges, in the circumstances narrated by DW1 and DW2. Therefore, I am satisfied that the defence of both accused persons does not deserve any value in law. From the reasons I have endevoured to give, it is my considered view that the accused persons lacked malice aforethought in the incident that led to the death of the deceased. In light of the above, the offence of murder cannot be established against the accused persons. In the alternative, I convict both accused persons with a lesser and cognate offence of manslaughter contrary to section 195 and 198 of the Penal Code. Ordered accordingly. SENTENCE I have carefully considered the aggravating and mitigating factors registered by the prosecution and the defence counsels respectively. The sentence for an accused found guilty of manslaughter is provided under section 198 of 21 the Penal Code to the maximum punishment of life imprisonment. I have also considered the Sentencing Guidelines of 2023, and I am satisfied that the circumstances of this case fall under the high level category, of the offence of manslaughter. However, I have noted that there are no previous criminal records of either of the offenders. I have further considered the time already spent in custody by both offenders since their arrest. In addition to the foregoing, another mitigation consideration relates to the family circumstances of the offenders, notably, they have family members who are dependent on them. The reasons stated herein provide sufficient grounds for lenience of sentence. Consequently, the accused persons namely Kelvin Sylvester Mwikanu and Mtega Lameck Chikwawa are hereby sentenced to serve ten (10) years imprisonment each from the date of this order. Right of appeal is fully explained. DATED at DODOMA this 28th day of March, 2025. I.D. MUSOKWA JUDGE 22