mwita kiabaroti nyakihengu vs republic 1980 tzca 11 10 october 1980

AT MWANZA (CORAM: Nyalall, C 0J., Mwakaser.do, J«Ao and Makame, J-.A. ) '* "• "k*' ‘ .. CRIMINAL APPEAL NO* 3 2 OF 1980 B E T W E E N MWITA s/o KIABAROTI Q NYAKIHENGU APPELLANT A N D .THE REPUBLIC RESPONDENT (Appeal from the Conviction and Sentence of the High Court of Tanzania at Musoraa) (Mfalila, J . ) dated the 17th day of December., 19 79, in CRIMINAL SESSIONS CASE NO. 81 OF 1979 JUDGMENT OF THE COURT MWAKASENDO, J.A.; ’ The appellant, MWITA s/o KIABAROTI alias 'IYAKIHENGU, r was * V charged and convicted by the High ^ourt of the < i.rder cf JOSEPH ■ • t- NYAMHANGA MARWA and sentenced to death. The learned trial judge in his judgment, «fter reviewing k1 the evidence deposed, was of the view that the q isstxoa of guilt or otherwise of the accused, now the appellant, afjetided on whether I f V. ohe believed the witnesses of the prosecution or: - particularly the identification evidence of the two widows of tii: deceased MARWA. The learned trial judge was clearly of the ‘/-lew that the identifical^on evidence was of a weaJc kind - insufficient of itself to found the basis of a conviction* He tho* 4 j '-cv in th« qircumstances of the case, that something more was Required tp! support beyond doubt the. identification of the appellant .•*■'!*'•. W ar’ I as the one who fatally assaulted the deceased MARW/- r found support’for the widows' identification evidence im u a evidence of the accused’s words including insults and threat? ! '' «cjed to have been spoken or made by him frciathe sanctuary o ‘ .lit, th~ j’J. e «s * •> o / c. If one accepts that the accused made the alleged insults and threats in the night, which the learned trial judge seems to have .done, wo think when this evidence is considered with the other evidence adduced by the prosecution, such as the ■act of the accused of going to the scene of crime the following morningj retrieving the spear blade and confessing that ■ Sit • he had used it to spear the deceased - there cah be ho doubt left as to the identity of the appellant as the killer of the .deceased MARWA. HoweverMr. V; N. Desai, learned counsel for the appellantj ih a spirited short submission contended that the view reached by the learned trial Judge on the Crucial issue of identification was erroneous because in the wotds used in the first ground of appeal the judge "did not examine the evidence of identification critically in view of the fact that the night in question did not favour correct identification. With respect, we do hot agree. We think the learned trial.judge properly dealt with this matter and was perfectly entitled, o h the.evidence on record, to hold that the appellant was correctly identified as the killer of the deceased. With regard to the second ground of appeal, that is, the question whether in view of the unanimous opinion of the assessors on the issue of credibility the learned trial judge should have held their opinions logically tenable and acted accordinglyj we think that as properly submitted ,by Mr* Mwanylka, learned counsel for the Republic, the learned trial judge was quite entitled, on the evidence, to. reject the assessors' view of .the matter. - 3 - ^^.Tat as it; may, we are satisfied, on the evidence, that the conviction of the appellant for murder was proper. We accordingly dismiss this appeal. i DA tIe D at MWANZA this 10th day of October, 1980. F. L. NYALALI CHIEF JUSTICE y. M. M. MWAKASENnO JUSTICE OF APPEAL ' ;"J L. M. MAKAME > - JUSTICE OF APPEAL I certify that this is a true copy of the original,