19800510 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOMA ORIGINAL JURISDICTION (Dodoma Registry) CRININA.1 SESSIONS CASE No .• 70 OF 1977 THB REFLJBLIC VGTSUS 1 • MC~.PJ·' G :\ G/ 0 I,_ '\'rONY !\ 2. 1JI:GY!1. 3/0 t'l.TYJ'.,.NJ!:i.LA 3. M!wBJ:8 8/0 l D3J:1ITI 10 4. MAHIMBUL:\ KDIDLIJl'--:SLI 5. FARU S/0 K:\ZE Charge: MURDER c/s.196 of the Ponal Codo. ', __,. _ JUDGMENT CHIPETA, J. The four accused persons in this case, namely, I'Teanga s/o Matonya, Mycya s/o Mnyanjala, Madcje s/o Ndctii and F;ru s/o Kazc, st,md jointly charged with tho off:::ncc of murder c/s.196 of the Penal Code. The Republic has alleged th~t on or about tho 3rd of 20 October, 1974, in Dodoma Region, the four accused persons j9._intly and together murdered one Sinle s/o J\'Iidatu. E .., ch of tho accused pcrs0ns denied tho charge • The prosJcution called a. tot;~.l of nine wi tncssos whose evidence is as follows. ·:rh0 cl-:;ce3.sed, a resident of J'.Tlowa Bwawani vill·~-10 in Dodoma District, used to own cattle. One day, oarly in Oct obor, 197 4, th,J docc;1.sed left his homo and wont to graze his cattle in the bush, -~ts he often used to do.. He never r--::turned, and only s0m.e of 20 the ca ttlc returned hornc: six were missing. Tllo c.bsc:r,ce of the deceased and tho missing cattle prompted t~1.c rc- l::1ti ves of the deceased, etlilong whom were his son, or1 c Chiledu Sit1ule ( Pj. 6) 2nd one Mongol<1. Ngang2. ( P'.J. 1 ) , launched a search for tho deceased and the missing cattle. Two or three days later, tho ;:.:·Jarch parties found · the deceased dead· in the bush with his h8nds 2J.1d legs. tied with ropes and his mouth g,?,gged with his own clothing, d 6J and had injuries on tho hc1:1,d. The mo.,tter wis them re- ported to police, and PW. 6 2nd others continued the sc:-:1.rch for the missing cattle_. In the course of looking f0r the missing cattle two membGrs of the se:::i.rch partios wont to Nyang'oro village in tho neighbouring Iringa District .:1.nd reported t0 a Chairman of th:-it village, one Alois Npo.gama ( F'. 1. 9) , that 1 six of their heads of cattle were missing. Somo two or three days there o..fter, n group of five people wont to Nyang'oro vill'.=tge with six heads of c2.ttle 1-• nnd asked one of the vill0.gcrs there to s':ow them where f .,.: ; a c:::,ttle auction w::1.s :Joing held.. .'.'i. t'1GQ.b .;r of the Pooplo ',~ 1 Militia, one Beo.tus I1n.s·:,ngulc~. (P-4. 7), took t}2~:; fivG men 2J1d the cc.ttle to the vj_1l::tgc chairm.::.n ( FJ. 9) _. -:Lc~.l~_ing tho report ho had oarli::;r received of six f-;:liGsinz cr:ttlo·, PW .• 9 decided to intcrros1.t th8 fivo ocm in tl10 pr.-~sc:r.cc __ .. • - -a•• of PW. 7 '.'md other people. On being intorrog'ltod. about tho c:-i,ttlc, tho fj_vo mon said tho.t tho cattle were their ovm prr.·pcrty. But \·,:. .Gn 1 they wore :1,skcd to produce a written nuthor:dy a.lJ.c1,-1ing 20 the □to d.:>'ivc the C'::ttlo from pl,-,,c,: to place, :J.s is tho prnctico in tho o..ro'.,._, tho·,~ could produce no such :c:,ut~--writy. Insto--::'..d they ;:i,11 turned tilil r.n.d t0ok to their ho els. apprehended_. Ono of those apprehended h::\d a TAHU c,.,_rd. They were then t::kon to I s 1?,ni Prio.!1.ry Court in Iring,?. District 0 under tho osc0rt of PW. 7, but tho c~.ttle were left in the custody 0f PW. 9 nt. I>Ty::m5' oro vill-9..ge. At Isnani Prioary Court, PW. 7 h211_dGd over tho throe 30 men to a oossongor there y ·me J C'Soph .Kisr:nga ( P-J. 8) who then locked the thr0,.; c-.ori j_n the court lC'ck-uJ:i mr.1. tock possession of the I'J.l'.-U c --.rd., i,-rhich w"'..s in tho n7.mo of Ngmigo. Nntonya. Thc~t w·;s on 12th October, 1974. That very night, tho throe non broke out of tho lock- up ar1d escaped_. So □ e three days after the apprel:.ension of t 110 three □ en at Ny7.ng' oro vj_ll,i,e;o, F;l. 6 3.Ild other people from Mlowa Bwo:,,~:pi vill.'.""'..30 wc:nt to Ny.9.Il[:: 1 oro vil1::-i, ·,c, -:',nd on be-in&:. ch,-.,,m tho si· X '-, ·,·i(~P.:.> of '-' 0-- \. · ~ - ... ~ . c---ttlr, • .., .... . +boy 1·-., .. ,,.,,,\l __ .--,+r,l,r t, , .... ' U .• u v I . dI..; 0 ; 40 identified the c,1,ttJ.e ttJ b-e -thoae of the de.ceased, Simle Nidatu. Meanwhile, on 5th October, 1974, a Dr. Dahm conducted a post-norton Gxaoinatinn on the body of the deceased. The Doctor observed th2.t thG deceased had a fr:-::,cturod skull and throe cut wounds on tho he :d mo,1.suri:ng between six to ten cent imctros long. The Dc)ctor th0n opim::tr.: that tho doco8.sed dL;:l t;1r,1,.l to tl1rco Jr~ys pri.or t:j the post-nortem . exonins.tion, :',n:1 t 1_,-:,t do':,th W2S of the skull r.md d8.nnge to bra,j_n tis ::uo. 10 On 15th October, 197 4, ,-:i, police of ficor, one Jur::io.nne J\Tfu.ko (PW.2), received et report th,~t some people h-·.d been arrested at Nyang' oro villc-1.gc for being in pozr..::ossion of tho clocoasod' s stolon c::1. ttlo. P'.J. 2 ;:,.nd oth~:;.r polic o r off ice rs proceeded to Ny::ng' oro vill~gc where they wore shovm thG stolen c2.ttlo. Thence, they wont to Isc1°'.ni prioary court whore they were told th':!.t tho throe suspGcts had broken out of tho lock-up and esc0.pGd. F 1 • 2 w,IB then shown the T.ANU c'l.rd which wns found on. tho )Orson of one of tho suspects. That cr1,rd wf'~s Fri.350412 bcnring 20 the name of Mganga I'![,-~t•.7nya and hio a.d.lrcoo .. Guided by the address on the TAf'TTJ card, PU .2 arrested the first accused, and subsequently the rest of the accused persons wore also arrested. In Qddition to the four accused ·persons~ cne M2.hj_nbula Fincrir:i.eli (PW. 5) was also arrested, nnd tho fi vc of t.hor:1 Hore jointly ch.1,rGod with this offence, In tha course of thG tri~l, howcvor, tho chc-i.rge against PW.5 W\S dropped~ ::111cl he g,.v-:; ovidcr:.co fc,r the prosecution. On 30th October, 1974, the first 3.ccus.:d, M,J;~:,L:_;". 30 Matonya, and tho second ace"\ sod, Fyey1 l"ny2,nj ''-1?.., n-:--,c1c extra-judic\':ll str:1temonts to a justice of thop:Y',CO or'.o Leonard Kobollo (PW.4), 2.11d. on 4th Fcvcmbor, 1974, the 3rd accusud, Made j o Ncletii, !?,lso nadc an oxtra-juchcin.l statenent bcforG tho so.Do - justice of tho po:=:tco. Those extra-judicial st.1.tont,_'.{~>,.;·-· . ::ose proclv.ction in cnnrt was not obj c~cted to, were tend-ered as Prcsecutic,n 1xhibi ts D, E nnd C, respectively. In his oxtrn-judiciecl statonent (Prosecution Exhibit D), the first accused had this to s:::ty, ruid I quot o hi□ 40 in extenso: _,.,...._ -- - ~ - .,/ ,..We went to steal cc'lttlc whore they were • being grcJ.zed, :md wo f,)uncl the cattle in the bush. I r,:_;mfdncd behind b0cause the hGl ~.~Qan w:-.mld h::-:.vo identified ne as he is·rny neighbour. My colleagues caught hio cm.cl _I c..nd n scc._ond person drove away tho cr1.ttle. Two reoai,nod behind holding the decoas~d. Madeje said that Fwalu h2.d severely assaulted the hordsnan on tho head. I scolded 10 them for assaulting him. Th.c1,t is all". In his extra~judicial st.ate□ ent (Prosecution Exhibit E), the second accused had this to s~y, and I quote him also in extenso: 11 0ne day I was having a walk with J\1ganga, JVItundu c:nd Madej e and Fw?.ru... Ve mot e._herd of ca tt~e; we ~ccicled to steal L thog?. MadeJe and .i!waru c:;i.ueht the herdsr:11-n. Madeja hi~ him with~ s~~ ·k twice. I went to warn him n0t to assault th~ herds- 20 mon because ho w'!.s nrt putting up any rosi.stance .- 11 \le stole the: cn,, ttle ::md went aw<iy. I, Mgnngn and Mtundu. toc:k m-ny six 1~f the cattl0. Ue arrivod at Ny~g' oro whore we were· arrested. ~·:..t :uight we oscapod and returned hone. :i?olicc c.ss:10 to arrest us. Th:-1.t hi 2.11." In his short oxtra-jv_dicial st2tG□ ont ( Prosccuti,')n Exhibit C), tho th.ircl e,ccusod s;tid: 30 "On 2 •. 11.74, a police officer cr:llod Lekobo arrested r1e at a por.:ibc shop nlloging th1-t I had stolen cattle. Yesterday I w~s brought here at tho police station. Hero I was tcld that I had killed so □ oone but I do not lrnow anything about that nllegntion. Th~t is all." On 23rd August; 1975, one Inspector Anani (PW.3) conducted a police identifination par~de. In that.parade, the four accused persons and PW.5 were the susp~cts, 2nd 40 PW.7 and PW.9 identified the first accused cmd Hl.5 c:s having been among the pooplo who took the six stolon cattle to Nynng'oro vil1e,c;e. The rest of tho '.J.CCUSed persons wero not identified by n.ny of these two witnesses. Subsequently,. PW .8 identified the first c..ccuso J -_,,t the police station, but it is not cle,J.r in wh,,,t circuE1st~.nces he identified the first o.ccused bec,:.1,11se he w ~s n,,t onG 0 of the identifying wi tnossGs at the police ider.i_tific:--.tion parade conducted by PU.3. 1e In the 001.:.r::v:: o:f i:~:i:v-1Y'.g e.;,.j_-1,m~0. during ~he tricl, ., · · l'w .·:;· ·-~·,; =-·t-~:d that in nddi tion to tho firat ;3-0.ou.sod ['Jld PW. 5, the secc.;:.:-.. ::1. ::n:(1 th; ~rl accused pers0ns were 8.lso in the grcup of people th~t had the c2.ttle 2.t Nyang' oro village. PW.7, en tho other h~~d, 8~ly identified the first accused il1 court, while PW .8 could not identify any of the accused persons in court, but he s~id tht'..'t .. the one he identified n t the pr:,lice s"to.tion ·~s C,"l.llod Mg<1..ngo.. Mat_011y_E!::•. __ . Tb.o evidence of P.!. 5 w·.,.s t 111.t one d··iy hG s-:::w tho first 10 and second a ccusod pors0ns nnd a 3rd porsnni Hith six heads of c8.ttln cit Ny:-:i.nc' -:iro villn.go. The first ,~ccused asked hio wherG a cc1ttlo .::rnction w::,,s being h.old.. Sc he (Hlo5) took tbose people, to tho vill::,ge le~dor. 'I'hore the~~:~~ ~u~;lo claimed th~t the c~ttlo wer8 theirs, but on furthor interrogntion, they took to their h,·.::cls but wore nrrested. On being scmrchocl, tho first ,\Ccv.scd was f mmd with a TANU card. .1ccording to F.f. 5, tho 3rd '.".cc1Jso·"" was not present. \ During the tri2.l tho six hsnds nf co.ttlo wore idontit@ed by P\JJ. 6 fron th0ir colours J.nd clear brMd r.nrks on them. E ch of the accused persons rn1cle an unsworn sts.t ement ~ ~ in his def:;;nce. In his unswo:cn statGri~t, thG first accused si □ ply said: .. .,/ ,.,.r'.f~_e truth is th,-,, t I w8.s arrest od at hor.:io and _,/ they brought □G to police 3tation. Th1.t is all I huv-e t o sny" • /:(~ his unsworn st::--~tc::1cnt, the sccrmd :1.ccuscd s.r:id _;tfi'at he was arrested in October 1 1974 ::.nd W'1.S t:::.ken to / . ·· Dodoma police st~tion whe:rG h·: ·:,,'l.s a3kod if h2 knew Mganga J\1atonya. He r.Jpliccl th?. t ho know 1:i.i □ :1s they oncG li vod in the s<-1.rJG vill"..go. But l10 denied kr:.o,1ing Madoje/'1dGtii and Faru K'.:'...zolrn. Ho 2_J..so denied h·wing killed onyonc. After an 2..r[,umcnt with a policG officer /beat hi::1 up. Later, he o.nd. the 1st ::ccusod wore t··:J;:on out of th0 lock-up and wore severely bo;-;.ton up q,ncl tortureJ. Bocauso of tho pains, ho (tho soccnd nccusod) decided to ndoi t nnd c:icntion nones of people, ho:pinz that ho wnuld tGll tho truth later. Th0 2nd accused concluded by saying thnt he novor killed anyone. 40 ·- ...... - ·-· In his unsworn stat~ment, the thir~ necused said th~t after being arrested at a po□be shop, he w:1.s taken to police st~tion ~~3re he was asked if he lmew Mganga r-md Myeyn 1 but he s3.id he did n0t know then. He was then charged with r.:mrdcr. He w'"'~s then tri.ken bc~fore J:W. 4 where .he nade his stnteoent. Hu did not s~a the first ~nd second accused persons until ho w .s t.'.'..kon tr. court. L'.1tor ho saw the fourth Qccusod. In his u...'1.sworn st:'..to-'cnt, t110 fo-:irth n.ci~us.,:;,cl s::-;id that he was arrested nt his hoo.c by polio~ officers in 10 Deccnber, 1974. On ar,:-iv2,l ;it tho pr-llico st'l,ti:'n, police told hio that he W'.'.'\.s being ch-1.rgcd for nmrd,:-:r, and was interrogated. Bv_t he deniod tho accus1.tion. He was then taken bof,:>r0 sono officer ( prcsur:12,bly .. ,_, justice of tho peace) where he tJ/·'..c:c his statc):,~ont rogo..rdinc the circuost~nces of his ~rrcst. After oy suor:1inG up tc the three -~~entloocn 8.s-;.·essors, they were of the unani:-1ous opinion th ..,t the first, second and third accused persons were guilty of r:mrder, but they advised that the fourth accused was not guilty of 20 the charge. From the foregoing evidence, there can be no dispute that a □an by the na□ e of Siole s/o Midatu is dead, and that he died a violent de':':.th. Fro□ the nature of the injuries which he sustained and from which he died ::nd the manner in which he i;ns tied with ropes -:m.d gagged, ther•J can equally be no doubt tt,. t he w::1,s r:mrdered. The question th:J.. t is in dispute is: who c:msocl the deceased' s de2..th? It is the c2so of the Republic tfr··.t the four accused persons, 2..t My r:ite. the first, second 30 and third accused. persons, are the pe:ple who nurdcrcd the deceased in the course of c2.ttlo Tustling. The defence, however, cont ended th2.t the evidence :·.:;:;.inst the a.ccused persons W8,s insufficient rmd/ or unrel:~~blo, 2.nc.1 t.1:Y'.. t in any case the circucstr.nccs were such '.',s not to justify an inference th2..t such of the□ c.s l"'.lay be found to h.:wo taken part in the ste'l1ing of tho d.oce;~~sed I s c"':.ttlc h:-•,d a com~ 0 n intention to kill nr cause hi~ grievous bodily harm. Thcr £s.~t quostion for c,,nsiclorntion, thcrforr::, is as to wbo, anong thee,o £.our ::,.ccusocr puTIJ,en.s.,. i:t» ::::..ny of then at o.11~ took p".rt in stor1linc; the docoased1a ,~.t.t~. I will now proceed to consider tho evidence on this point in :respect of G"l.Ch of tho ace.used. persons in turn, ert::i.rting with the fourth accused • .As Mr. Mbezi, lcr.i.rned counsel for the defence, sub .. mitted, and as c0ncoded by Mr. f\.limwiko, lo?.rnocl senior ·st~te attorney for the Republic, the ev~den~-~~~~ the f ourt'h accused is very W•}ak. There is n<1 t a single ~ witness who nQoed the first accused in nny connection. The only evidence which ioplic~~es the f0urth ~ocused ms the extra-judicinl state□ ent of- the second accused nnd, to some extent, that of the first accused, --md these are in the nnture of confessions. As I u.ndersto.nd the 1:~.w, -~- crmf ossj_cn of ·m "'.cc.used person . ·-1hich ir.1plic-::. tos :--, cn-'.lcc:uscd with the con issinn of a crime cannot f0rT1 the b2.si.s of ·. cnnvicti-m of the co-accused. It cw only bo usGd :1,s Lmcllng ,::,ssur ',nco to other evidence which f''..lls short by _..,_ very n ..,_rrow 20 margin of the stnndard of proof ncccss['.ry for : conviction. Put differently, such a ccinf oss:t.,·-n sl~ oulcl only b::: usad to lend credence to othor independent ~nd reli~bl2-evi- dence. (bee Gopa s/o Gid::--.,bcr.1,:mv2, nnd Others V. R., 20 E.A.C~A. 318, 322). Or, in tho words of the Court of Appeal for Eastern t~fric,:i, in thG and Others V. R., (20 :c • .-·~.c •.:,.. 324 nt pn,ge 326: II ••••• it is incorrect to r0g~rd ~ confession nnde by 0ne accused in on oxtra-judicial stntenent as a basis for a case against 30 a co-accused, and to hold that, witq some corrobotation it··is safe to cc~vic~~ On the contrary·what is needed is independent evidence froo a t:rustwnrty $Ource, which when linked 3Il.d supported by the confossion of the co-accused, renovas beyon~ any r3~sonablc doubt the question of innoccmctJ. 11 Th'1t being tlie position, tho soc;:1nd accused's confession implicating the fourth ~.ccused in the inst2.nt c-:-.so ~-Ii th··. the theft of the daco:-i.,sod I s c ··.ttle c:·,_n:not forB :::i. lY',sis 40 for the fourth accused I s cc•nviction, .... -· ahd there bein .~ no oth-:r cvidoncc icpli~-:-.ting Rio, the '• dn..se a0 a:Lnst tho fourth :~ccusod nU(ilt f::.il• I' With ~G~Rrd tO tho thitd ~djuaad, th! ijh1Y aVidoUlt ag:iitJ.~t him is thn.t 0f PW.9, the oxt~tt... ju.ciio.ial efbici.tet.rnnt of the second. accused ,ind., to sor1e extent, thn.t of tho t~;r~t aaousod, Sirice those e:xt:ra.... ju.dicir.>~ 3tatehopts nrc confessions as far as thq th~ft of the cattie is cortaerrted, the~ e~rt bply nc Used ns iahding cred.onc e to other ind(rr".;nd$nlt fi.nd trustw6:rtliy ~~ideif5@, Is thero such evidchee? i ti As pointed out 2.bov'b, the. on.J.¥. other e-V-id.enco is tl:\~t bf PW. 9. This witne$§ s1.id in court th."lt the thircr ··· · · rtccused w-2,s one of the people uho brr,ught the C'l.ttle. Having seem ahd hc~rd this wi tnoss -::-.s he g..,_ vo cviclci1.co; f I atn in no doubt ~t etll tb '.t hr1 is trti.{h:fU1 wi tnoss • r; He did not delibor~toly cxn:~cr~tc nything, I~~ s~ti~ sficd tm t he t olcl the court tho truJch 'l.S ho i-iatdLrda :Vb But it is connon knoi·itvlge thr;t :;V-9ti ~ t.ttttJfeu.J. ~tliea~ r'1ay be gonu.:i.11oly r i~t.1.!~:)n. :-:tr; to th0 iuon.titY of people or things. \ii th regard to PW. 9i s o\rid<)nee o:~ idch-tific"',tlciii of the third accus,Y'.; I :?..tt nnt fully sn.tisfidd th ~~t it· rtttist ht\ . . corre~t. I entcrtf'.in this ,: ubt boct.i.uso .:U1 tnc first place; this s,:tnc wi tnosR frtilccl to t{~±iti.:f;yt the · :3rd accused pers<':ih at the pollce id.cntif:lc:-1.tion )?'l.r".de-. In th·e second pl::i:co; the other -withc:Jses who cl'.·s:i.m to have seen the Cr:tttlc thiovcs, rmch r-s PW. 7 and HL 5, could not identify tho third :,,ccused" The 3rd ncc1.tsed has ·no peculiar identifying tiaJ ks, -n.:1 l?W. ~ pointed to know ·, ~uch narks. ,o For these :i:'ensons, I nt.i ~el·1ct·::.nt to l'lbcept P':l-. 9' s ev:i.denc'e of identification :,,s frir as the thJ:r-d :1ccu-sed iJ con·ceriled. There is ~- possi"hilit•r .th-..t the witnoss could have been honestly oist:;.kun. '.~he third ~ccus'Cd; therefore, and with 1111 due respect to tho three -g0ntie- raen assessor;s who advised t1G to tho c0nt"r-n.ry ➔ 01.tcht to be given the behef:it of the .ioub't. ,' Tti.:rning frow ,,. • .... ,. to the evidence inpli6atirig the S(ic'ohcl J ·- ·:·1:... '-J'" a,bcui~µ, NY.Gita ·Nrtyanj8.ii; I n0te th.ht ho ho.s been il;-i__tibd by Pw.5 and PW.9. Tho other cvidan6o t.g'1:i.nst hib is 40 flf+ ~ , o~ ~o.,.,jqrU.c:i.:1.1 e,-i,,-.,-tcr.ont.... · Firtrti, to ime _c:xtta- ;}udiciaJ.. statcr.::ien t. ;\.s point Gd out oar lier, those extra-judici.::.l st:-i.t er.1ont s were produc Gd in the course ,. of tho tri.'l.l without objection. In his unsworn state1:1e.nt i'n his defence, however, tho second nccusGd retracted that confession. He snid, in effect, thRt he was forced to □ake th ,::,,t confession. In other words, the second accused is saying th::t his cofession w?.s not volunt"';ry and th?...t the cont on ts of it ::-.re not true. Wh~t, then, is the ovidcnti--:1 v:.lue of , confession? 10 As a general rule, n. cc--nf ossicn of guilt by '.1.n '7.ccusod person ony be- tho b['.sis of :, conviction. .As w·~s st··.tod by the Court of Appe8.l for Dqst Afric:'.. in tho ~obr .tod .. case of. Tu,wa□ oi v, Ugando., (1967) :s.;~. 84, 3,t p.--:.g~.: 91: "The prosecution r:mst first prove th...,_ t this confession h2..s boon properly ond. lcc;r.lly □ado. Tho cnin osscntisl for tho V'1lidi ty of a confession is th~:t it is volunt-:ry, ••• If tho court is settisfiod th-::,t tto st-,.tonont is properly :J.cl□ issiblo :md so o..d: 1.i ts it, thon 20 when tho court is f'..rri ving ::i.t its judgocn t it will consi~or all tho evidenco boforo. it nnd nll tho circu□ stnncos of tho cQse, and in doing so will consider the weight to be pl.'lced on any conf ossion tlF•.t 1-i::1.s beGn adoitted. In ~sscssing ~ ccrtfession the oain consideration ::-:,t this st'l.ge will be, is it true? find if the confession is the only evidence ·'1{:'linst '.7.11 '1CCUSGd then the court oust dociJod whether tho o.ccusod h:1.s 30 corrGctly relate:l wh:.t h:-...pronod ".nd whether the statG□ Gnt est1blishcs his :uilt with that degree of certainty required in a crioinal casc 11 • With regard to rctrn.ctcd and ropucli8~tod c:mf cssions, the sa□ e Court in the s:::.r.10 c2,se had this to so.y, .:1.t pace 91 : "We w0uld sur:11'.nrize the pos1tion th.ro-: - t:1. trial court sh0uld ~ccept any confession which has boon retr~cted or rGpudi:-:i.ted or both retrncted and repudiated, with caution, and oust before founding a conviction on such a confession be fully s;.1.tisfiod .:in-· · all tho circunstanccs Df tho C".:::W th~,t the confession is truo. 'rho S-"1.CC stan:?..2.rd of proof is roquiroc.1 in o.11 c .scs r-nd USU-:?..lly 0 a court will 0nly 0.ct on tho c,"-1,fession if c0rroborated in some nntG~ial p~rticular by inclepondent evidence c.ccoptcd by tho court. But corrobor[',tion is not nGcess"..ry in lo.w nnd tho c0urt oay act 0n 2. conf ossion if it is fully satisfied nfter consicoring nll 10 the nn:terial points and surroun~1ing cir- cuostanc es tho.t tho confession cannot but be true". In the instant case, I h2.vc carefully considered the evidence of 'PW .4 and tho circumst:::mcos in which the confe- ssion was □o.de, o.nd I ::n loft in no dr,ubt at -:i.11 thnt the confession w?.s pro:porly r,i....,.de and th'lt it w::.s voluntc.ry. The. ques·tion that next o.riscs is whether th~ t conf cssion is true. I note that the second accused's confession is n~t 20 a bare ad□ission of his conplici ty in tho theft of t).Lo dece- ased I s cn.ttle. It cont:ctins salient d0tnils s000 '.•f 1;-1hich were within his own poculi2.r knowled&:o. In th::1.t st,·.tonent the second accused n.ontions other people who ·wore with i hi□• hen ho goos on to s2.y tlY'.t the hcrdsn7.n 1,-p,s nsso.ultcd, that he, tho first :J.ccur1od and cno Mt1✓-:.:ndu took aw2y six of the_ cnttlo to Nyang' oro village ·,vhoro they were ::Trestod, and th~t at nj_ght they escaped. These detr1ils 7.rc n--:.terially corrobor:-,,ted by other independent evic1cnc e. :j<ii>'"' . · ---- -- The injuri os sustained by the deccn,ses. :'.•,-~-· J~- f:-ic·i; ··that 30 six of the deceased' s c~:.ttle wero stolon o.nd later found at Nyang' oro village, ::.nd tho f'1.c:t th,.t those f0und with the cattle were arrested but l~tcr esc--ipecl, 2.11 go to corro- borate the second ci.ccused' s confcssi0r:. in nlmost ov--.:ry .m,::,terial particulnr. li.11 those f··.cts 1-rnro dep,-,sed to by F.:l.6, J:\:1.7, PW. 8, and PW. 9. I c::cn soc nn re').son t(' dc,ubt thG truthfulness of these witnesses. Apart fro□ thn.t cviJ.,Jnca which c:·1:rTobor-itos in detail, albeit circuostanti<.'!.lly, ths soc:incl 2. ccus0d' s conf ossion, we have evidence of PW.9 2.Ild PH.5 who told tlle ce;urt th'lt 40 the second accused W'.7.S one of the people who h;-,.,d the six heads of cattle. It is true th'.'-t PW. 9 did not idcr tify the .2nd. a.c~ ed. n.t. the :oolicc idontific"- ti,,n pctr'J.do, ::md so if his evidence were to st .nd ::'.Lme on this p.oint-, -one wou1d~ hesit~te to act upon it. B~t in QY view, this evidence lends credence to tho con ton ts of the second 3.ccuscd' s confession. Sioil::1.rly, ',nd ::-:s w::..s p0inted out by le::.rnec"!. counsel for the def encG, the evidence of Hf. 5 r:mst bo taken with ccmtion as ho is a witness with bis own interests to serve. Having seen nnd heard IW. 5 as ho [::'\.Ve evL"!.c,nce, ond ~nving considered his evidence n.nd th:'l. t of F.1. 7 ::.nd PW. 9, I think th2.t PW. 5 liod when he s,~id th:1 t he ·lL'. 10 not run awny. Nevertheless, there is , in ny considered opinirm, substantial truth in his. testio,ny. Fro □ tho evidence of ?W. 7 and IW. 9, thore con b0- no doubt tJ:r.t PW.5 was present. In n2-oing the first '.IDd second accused persons, I do not think th0.t this wi tnoss was being revengeful. I an, therefore, propared to accept ,mcl do accept Hl. 5 1 s evidence tkit he saw the second accused in tho group th ".t had the six he2.ds of cf',ttle. Fro□ the foregoing evidence I ao fully s~tisfied that the second accused's confession c'.J.nnot but be true in all 20 r:J.?,terial aspects, md that it substant:i.:1.lly correctly describes what h2.ppened. Inds:,d 1 fro□ '.J.ll the circunstances, I would h~.ve been prep0..rec1 9 even wi thr:nt cor···obor'.ltivc . ev].. dence to ...,ct on t11r: Qnn,w,a '"'CCl s•·;r·11 s c·,nfesc•i·,..,n ·">lone ' '-1, ,, .!.. •• \..., 1'..)1._:..,_,,,•J_.i. .. ·1, 1 ,l. \,_,;\../. -. ..• I..J ,.J '~ ,_ • On the basis of Uw fiJrszo:Ln;;, I ·n sntisfied :1nd find as a fact that the seccnd accused w~s one of the people who stole the doce?cscd's --c:~ttle 1.t the tin::) tho deceased oet his death. With regard to tho first ::>,CC\1.Secl, tbt) evi clcnce inpli- catin!s hi□ with the .theft of the deceased's,c2.ttle ie:: thn.t30 of Ht~ 5, PW. 7, PW .8 -:.ncl I'W. 9. PW. 7 ond P'J. 9 iden tifiod the first accused at the police identification p"lr':'..do, while PW.8 identified hin o..t the police station, These three witnesses described the peculiarties of the first accused, and the first accused in fact fully answers.the descriptions of tho witnesses. He has, for instance, a scar on the head and on unusually lo.rgc chest. The ide- ntifying witnesses ho..d anplo time to observe hi □ 'l!ld described hin as the loader of the group. Then there is the evidence of J?W. 5 which len,ls croder"ce to the evidence 40 of 1?U. 7, IW. 8 ond PW. 9. ..... . ..~. ... In r,_dditj on . -!:'.: t.11 ~~ c,.r.id.01"2.-:: ? •.. tr~·r.c is .ovi3-.ence that a TJuro~--cc..r.rl. _ b.G2.rinc his n--·no ':'.Ild .'),d ;:ross W'.1.S found on , his person. Finc.lly, thor::; is his extrn.-judici-:'..l st-:.te- oent. I will now turn to the first !J.ccused' s oxtr:--,-juclici2:.l sto,teoent. Fro□ tho ovidcmco of P:l. •:-, tho circunst"'.nces in which tho first o.ccusocl rF',do th';. t :t".. te1:1ent, ·:--nd considering the ccntents of the sti'.. tc~ont its elf, I '-'-D satisfied thc-tt tho. t st~,t;:;r-'. :.nt, uhich i.s ~ confession, wns properly □ ::>,de :::nd W?l.S volunt2ry. But is it trl'.O 2-nd 10 does it correcty relnte whn.t hnpponerl? Like the second accused's oxtrn-judici~l st~teoont, that of the first accused is ~lso not a b~re ~d□ ission that he took pnrt in stef:',.ling tr..o dec.:;1,sod 1 s cattle: it is a fairly detailed 2.ccc-.-\,:n.t of what h'.lppened. fl.Dong those details are th?.t he ~mcl others c-;tole the c'."'l.ttlo in the bush; th 1.t ho ror:.1ained. behind for fc':.r th:::1.t the hcrds- oan would identify hir.1 c:ts ho w·.8 his :~.GiGhbour; th 1.t his colleagues enught tho h·:;r ..".f3L;~.n 1:i1ile ll.J ::md ':. second person prcc9•Gt,1,-;d to drive 'J..,r.y . sc•c_'1c· cf the c ::';tle; 8.Ild thJ.t ho 20 was later told thnt one of his colle~ues had severely n.ssaulted the herdsm:n. '.rhcJ·e is ar.:lplo evic.cmco Hhich corroborates the first accusc:l' s oxtr~,-judici:il st ,,trn~wnt. There is evidence th2:.t the dccoG..sed W'.:.S found de1.d in the bush, that he had injuries m.1 the hend, that he ho.cl been a neiGhbour of the first ar)cusod, cmd thnt thu 1st accused was in the group of people whc, wore found in posse- ssion of the six he:·1.ds of cattle which were subs.::quontly positively identified to be thos0 of tho doco~sod. Then there is tho TAl'TU cqrd. Bearing nll this ovic< .:cc in mind 30 mid the detc.i,ils in tho first acc·rnod' s confossinn, so □ e of which were on oc1 tters poculim·ly within his 01-m personal knowledge, I have had no difficulty in holding, ~s I do, that the first accused's conf ossi :m c:-::mot but bo true and thnt it subst::mtin,lly correctly relates whc..t h1.pponecl. Fro□ the forcc;oinG, I m:.1 fu·•.J..y sc. tisfied th '1t, like the second accused, the first ac~~sed w~s in the gr0up of people which stole tho clcco:isc 1' s six he::1.ds of c::-i.ttle at the tine the deco2scd. net his ~,:•,·,th ::1.n'.i 1-?.t,Jr t,:;.i;-.:1 to sell the □. 40 to sell then. The final question now is~ who nurclercd the rlcco':.sed. The prosecution's evidcnco is entirely circunstantial. No one actually saw tho person who inflicted tho fatal blow. The law rcg'.1rc1ing circunst'.1n tir,,l evidence is woll- ·settled: in order to justify an inf c):'.'enco of guilt ,:m circunstantial evidence, the inculp::.tory facts nust be incoripsti ble with the innocence of the accused ,':Uld nust be incapable of expli:mati,n on o:ny ether re: ,son3,lJle hypothis 10 0 than that of his 6 uil t. (Seo Kipkcr_ing Arap Koske aJJ.i1 1mother v. R., 16 B./•• C.A. 135~ 136), or, as the s3,ne Court put it in the en.so of N,gµ.ji s/o I✓:'.ugi v. R,..t. 6 E.,LC •.:L, 90, at p_s:.ge 93: 11 In :::i, trial for nur!:or 11hc;_~e circunst2.ntial evidonce is relied on, tj1~t evilence nust 102.d to the inovit:::l'lc c 1 nclusion that tllo death was the --;.ct or cont:rivorce of tho accused, n,nd if ·shore is C'n nltern::1.tive which_ cnn with any rcr,,,soL8.blc probr:ibility 20 account for tho dee.th this excludes tho certainty which is roquil~ed to justify Cl verdict of guilty". Both these cases were quoted with approyal by tho Gourt of Appeal of T'.":!.Ilz2.nia in the r.:::cont case of Fic1olis Selooani v. The Republic (Cri□:Lnal Lppe3.l No.2 of 1979 - as yet unreported). In the instant rc'.1se, it has been est:::i.blished, mid I have so found, that the first and second accused persons were found in possession of thG docG~:.sed' s stolen en ttle 30 only a few days after they wore stolen. It h'.1s nlso been est:::tblished th3.t those two 8-ccusGd persons took p.:: rt 0 .. in ste.~ling the sao.e, oncl t:1"..t tt; w·,s in the courso of that theft that the Jecc~8od □ ~this do~th. In oy view, thorof~r3, th: inovit'.1blo or inosc~p3ble inference is thJ,t the decco---::::.ic(l cut his Jo'.:'..th n.t the lr·,nds of nne or nore of those th':',t stole the decoc:,sed' s c:-~ ttle. --- -· . - -, was :1 group of pe,?ple who h'ld :locid.erl _upon committing o, robbci~y~ They sn.w tl::e· deceased wj_th the C:3-ttle in the I • busho F:r'.)D the nature 9f the injuries sustained by the deceri.sed o.nd fr0□ which .,he subsequently di sd, there can be no d,,ub-t th:3.t the grou.12_, or --sone- ncmb-er$·-·o:r--'thi:;--group, were armed with lethal we1_pons.. In those circumstances, therefore, it was most probo.ble that th:1.t bofore the theft conld be cor1mitted, the herdsnan had first to be over- powered and possibly nssaul ~ed 1-,ri th f.'1 tal consoqu.-:mces. As it turned out, th .'.t is oxn.ctly wh:--.. t happened. 10 The final question is Hhether those two 2.ccasod persons, or any of therJ, can be s:J,id to have dissociated the;r:.1.selves or hioself ~ I 1vill take tho case of the first s.ccn~rcd first. As I have s~id e~rlicr, the death of the horJ.s- c.an was a probable consequence of the grou1,'.:a prosc,cution of their unlawful purpos0. Uhat, th•.:m, w,1s tho rule pl;::.yod by the first accused? Let him doscri be it in his 01-m. words: n:My colleaeuos caucht 1:1im and I 8.hd a second parson drove awny the cattle. Two remQined boh:Lnd holding the docoased". 20 Clearly, thereforG, not only did the ~irst accused not nnise a finge:: but also th-1.t he ge:'1-)r::.lly 21Jproved of thG phy- sical ausault on the deceased. 3von assuoing that he later scoJ-led those that had severelr assaulted the doce.2sod:, I :ir~ far fror:i perm~c.ed that that alone can in law o.P.our.'.t to '.1. sufficient clisso- cj_aticin fro□ tho corn;ion in tonti,n in :::uch circur,1.st::,nccs. Thr:tt i.s clear from tho entirG c0r-.duct of the first '.lccused before, during nnd ~ftcr tho rorl, -~r, .f•Jr aft0r thG robbery he continued to possess the c~ttle and led his group fro □ 30 place to place in order to sell the booty. ;:/hen con.fronted by villagers of Nyang' oro vill:::igo, he would not come 1 out with the truth. Instead, ho turned tail and tried to escape. In respect of the first accused, therefore, I coopletoly b:oj oct tho suggestion th'.lt he dissociated hio.solf fr,:m ; the acts of the others in the prosecution of their cor1non purpose whoso probable consequences wore the de1.th of the hords □an,, 81 With reg".rd to the s :::cr.nd :~ccusecl, he to0 raust have known .the probable consequences 0f tho prosecution of their unlawful purpose. \.ccording to hio., two people (?§._ught· the herds □ !Jn md one . cf then hit the dece::'..sed wi.1th a stick. He adds. tia't ho wn.rnod the person not to ::~s.:<·.ul t the ..dec<Jt?i:se·a. But even n.ftor th··:.t tho second 8-ccnso,~:. and others proceeded tc t:::,kc etw2y tho c:-,.ttle and t.ried to sell the □• He ol>vfeitt~J hP.d no qualGis· about the f~·-te of the herdsnan and cnntipued to act-hrmd in gloV·J with his colleagues. In ny opinion, therefore, the con(luct 1O of tho socond accused at all □ ~terinl tines clenrly negatives the suggestion tm t he dissocic.1.tod hinself. On all these grounds which, I hope, ·r ·have su:ff iciently set out in this judgoent~ I--hold that the proaecution has failed to prove its case beyond rcasorn1ble doubt ..igainst the 3rd r:md 4th accused persons. I accordingly find the e third accused, M~dej Ndetii·, and the fourth accusod, Faru Kazc, not guilty of th2 offence of murder or ::i.ny other offence. I, therefore, r:i,cqui t -i:;liem forthwith. They ... --.. ---... _ -·-----shall_ be released fror.1 custody forthwith unless oth!Jrwisc 20 lawfully detnined. But I ao sgtisfiod, in rcsp:;ctful agreenent with all the gentlemen assessors, th,;.t the prosrJcution h'1.s :)roved . its case, and beyond reason-d)le doubt, against the first and secm1:d.. ac&tised persons. I O.C<?Ordii-:gly find the first accused, Mgf.lnga Matonya, r,nd the scc01-:'1 accusGd, Mycya Mn:ynnjala, guilty of r:i.urder as chnrged 1 ruicl I duly convict / each of the□ of tkit nffcnce forthwith. B. D. Cl-IIPET ..t;; JUDGE Delivered in open court at Dodo□n this 10th Jay of May, 1980. B.D.CHIIET."i. JUDGE 10.5.80 Mr. Karbush: The first 8..ccuscd c:y Lord, is '.l first offender. In respect of the second 3ccusod I seek t0 produce a certificate as to his pr:::vious conviction. 82 'Mr. Mbezi: No objection. Tendered ~s '.Pros. 3xh.G.1. 2nd Accused: It is true. B.D.CEIDT1 10.5..80 Mr. Mbczi: My Lord, I h::i.ve I10th:Lnc tc, say 2.s y()u:r hc'..11.rIEf are tied. ( B • D • CHI IBT A, J . 1st Accused stP.tes: I w0uld like to S",Y that I w::,s just arrested. I wns surprised to bo told th~t I h~d ~urdered someone. I did not resist. Then they bent □ e up. I have nothing elso to s~y. _ B.D.CHI?I;T_l\., J. 2nd Accused: I have nothing to sq,y. B • D • CHI :i."ET L, J • .... ---------~ S TI F T E N C E S You, Mganga Mat')nya, ctnd M;-rcya r1r:ir'.njal:1 h-:1.vc been convicted of this very serious offenco for which t11.cre is only one sentence, and tfr~;t is den.th. I accordin:~:ly sentence each one of you to death, cm.cl you shall each suffer death by hanging.