KAISARI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM CRIMINAL SESSION NO. 28 OF 2023 __________________ REPUBLIC VERSUS KAISARI LEONARD MPINGE JUDGEMENT Date of last order: 7th October 2024 Date of Judgement: 17th October 2024 MTEMBWA, J.: The Accused herein stands arraigned for the offense of attempted Murder Contrary to section 211(a) of the Penal Code, Cap 16 R.E 2022. It was alleged that on 8th October 2021, at the Ukonga Mzambarauni area within Ilala District in Dar es Salaam Region, the Accused attempted to Murder JIMMY MVUNGI (hereinafter “the Victim”). Briefly, in 2016, the victim leased a pork kitchen business to the Accused in consideration of monthly rent or fee of Tanzanian Shillings 150,000/=. The Accused then proceeded to do business by selling pork meat. Later on, it could appear that the Accused failed to pay the full agreed sum. Instead, he was paying 100,000/= as monthly rent, and later, he stopped paying as the days 1 went on. As a result, the victim advised him to surrender the kitchen business so that it could be rented to someone else, and thus, a misunderstanding arose between them. The facts reveal further that, on 8th October 2021, the victim was in the Kitchen with the Accused at Mvungi Pub. At that particular moment, the victim opened a refrigerator to take a drink, and while doing that, he accidentally stepped into the electric wire set by the Accused and was shocked. He fell to the ground and while still there helplessly, suddenly, the Accused attacked him with a machete on his head, right and left hand. Having done that, the Accused ran away, leaving the victim unconscious. PW3, the victim’s son, who was near the scene, witnessed the accused running from the kitchen. He went to the kitchen and found the victim lying helplessly on the ground. With the help of other civilians, the victim was rushed to Kitonga Hospital, where he was referred to Muhimbili Referral Hospital for further medical treatment. Having been medically examined, the medical examination report revealed that the victim suffered a Traumatic amputation of the right and left ring fingers, a fracture on the middle fingers, and multiple scalp cuts. The accused pleaded not guilty to the charge. Consequently, the Republic fronted five (5) witnesses and tendered one (1) exhibit. The Accused relied on his sworn testimonies and tendered no exhibit. 2 In this matter, Ms. Christina Joas, assisted by Ms. Jacqueline Werema, both learned Senior State Attorneys, appeared for the Republic, while Ms. Agatha Fabian, the learned counsel, appeared for the Accused person. Before I delve into the verdict, I will look into the evidence adduced by both parties. According to PW1, JIMMY SHANJALIKA MVUNGI, on 8th October 2021, he entered the pork kitchen room and opened the refrigerator to take some drinks. The Accused was also in the same room at the time. When he was taking the drink, the Accused attacked him by using a machete (Panga) and he suffered multiple cut wounds on his head and fingers. Previously, the Accused set an electric trap. While showing the Court the old scars on his head and fingers, PW1 testified that four of his hand fingers were amputated. At the time of the attack, the Accused uttered the words “ Leo ni lazima nikuue”. Having done that, he ran away. PW1 continued to testify that Joshua and Abdallah, his relatives, heard him screaming from the Kitchen. They took him to the nearest hospital, where he was referred to Muhimbili Referral Hospital for further treatment. He was unconscious for four days. Expounding on the attack, PW1 testified that he used to operate Mvungi Pub, where two kitchen rooms were established for selling normal meat and pork. He employed the Accused sometime in 2016, 3 and later, he rented the pork kitchen room to him in consideration of a monthly payment of Tanzanian Shillings 150,000/=. Initially, he paid the agreed sum, but later, he stopped. Cross-examined by the Defense counsel, PW1 admitted to have no business license in Court. He added that the agreement between him and the Accused was oral and had no documentary evidence. However, some people witnessed such an agreement, although they were not in Court to give evidence. He also admitted to have no evidence of payment of salary to the accused person, although the mode of payment was by cash. Cross-examined further, PW1 testified that the incident happened on 8th October 2021, around 16:00 hours in the evening in the pork kitchen room. He added that the accused was also there in the room. He admitted to have stepped into the electric trap set by the Accused. When he fell, it is when the Accused attacked him on his head and fingers. At the time of the attack, he did not become unconscious. That happened later. PW1 repeatedly testified that the Accused said, “leo lazima nikuue” at the time of the attack. He was admitted to Muhimbili Referral Hospital and then was transferred to Aghakan Hospital, where he stayed for five days. Re-examined by the learned state attorney, PW1 insisted that he sustained injuries on his head and fingers. 4 According to PW2 one ASP KEVIN GUMBO, on 20th January 2022 at around 20:00 hours, he was at his duty station when he was informed that a suspect had run away from the area of the scene, having injured someone. He was further informed that the suspect was within his jurisdiction around Banana area selling food and drinks. He went to Banana area and consulted the Bar owner. Having been shown to the accused while assisted by two other police officers, he arrested him and handed him to the police counter at Stakishali Police Station. After the arrest, the accused admitted to have committed the offense. Cross-examined by the defense counsel, PW2 testified that the Accused was arrested at a certain Bar working in the kitchen on 20th January 2022 at around 20:00. He was then taken to Stakishali Police Station. He admitted to have no Detention Register Book in Court. He also admitted to be not present when the offense was committed. Although the Accused admitted to have committed the offense before him, he did not record his Caution statement. He recalled that the incident happened on 8th October 2021 at Mzabarauni area within Ilala District. Re-examined by the learned state attorney, PW2 testified that he was only instructed to arrest the accused. Next to testify was ABDALLAH WAZIRI MVUNGI, who testified as PW3. While led by the learned state attorney, PW3 testified that on 8th October 5 2021, at around 15:00 hours, after arriving from school, he passed through the Pork Kitchen Room and saw the accused and the victim (PW1) talking. He had to take a shower first. However, within a few minutes, he heard noises from outside. He went out to see what was happening and witnessed the Accused running from the Pork Kitchen Room. His shirt had blood stains. He went directly to the kitchen room and found PW1 (victim) seriously injured. The victim was complaining that “Kaisari ananiua”. He was wounded on his head and fingers. He narrated further that, at a time, he was the first to arrive at the area of the scene. PW3 continued to testify that Joshua helped him to carry the victim to Kintonka Hospital. He added that his sister, Nashesha Shanjalika Mvungi, owns Mvungi Pub, while the victim operates the pork kitchen business. He had known the Accused since 2019 until the day of the incident. Having arrived at Kitongoa Hospital at Gongalamboto, the Doctor needed PF3. He then had to go to Gongolamboto Police Station, where he was issued with PF3 and handled it to the Doctor at Kintonka Hospital. He tendered the said PF3 for identification, which was received and marked as ID 1. At the time, the victim was unconscious, and so he did not know what was going on. Examined further, PW3 testified that the Accused used to live at home, but after the incident, he disappeared forever. 6 Cross-examined by defense counsel, PW3 admitted to have been not present in the Pork kitchen room when the incident happened and thus he did not see the Accused committing the offense. He only saw him running from Pork kitchen room. He was the first to arrive at the area of the scene. Having arrived there, the victim was already injured. The victim told him that, “Kaisali ananiua”. They went to the Hospital at around 16:00 hours. Re- examined by the learned state attorney, PW3 testified that a PF3 was taken from Gongolamboto Police Station and was handled to Kintonka Hospital. PW4, WP. 5765 CPL SHARIFA, led by the learned state attorney, testified that on 11th October 2021, while at her duty station, she received a Police Case File No. STK/IR/9515/2021. The complainant was Jimmy Mvungi (PW1), who was injured on his head and fingers. The suspect was Kaisari Leonard (the Accused). By then, the complainant was admitted to Muhimbili Referral Hospital and the suspect was nowhere to be seen. She went to Muhimbili Referral Hospital in the Intensive Care Unit (ICU) department and met a doctor on duty, who informed her that the complainant or victim was unconscious. The victim stayed there for some time. PW4 testified further that after the victim was discharged from the Hospital, she went to his home at Mzambalauni area. The victim was brought to Stakishali Police Station on 16th January 2022, the day she recorded his 7 statement. The Accused, who was working at a particular pub within Banana area, was arrested by Inspector Gumbo (PW2) on 20th January 2022. The arrest took a long time because the police force had no clear information from the victim because he was not okay. When he was okay, he was able to provide clear information, and that is when the investigation was launched. Later, the police force located the Accused and arrested him. PW4 testified further that, in her investigation, she discovered that the conflict between the Accused and the victim was fueled by the latter’s decision to hand over the pork kitchen business to another vendor. The Accused, who was then operating the said business, wasn't amused as he had already bought some business utensils. She discovered that the two were in conflict even before the day of the incident. Cross-examined by defense counsel, PW4 admitted to have been not present when the offense was committed. She got information from the victim. It took about four months before the accused was arrested from the day of the incident. Cross-examined further, PW4 testified that she was the one who recorded the Accused's Caution Statement on 21st January 2022 and he was in good condition, put on a black trouser and a white T-shirt. She admitted to have visited the area of the scene, but she did not see anything substantial. 8 PW5, DR. PAUL KAZUNGU, a medical doctor, testified as PW5. He recalled that on 9th October 2021, he was at his workplace place at Muhimbili Orthopaedic Institute (MOI). He received a patient with multiple injuries on his head and left hand involving three figures. On his head, there were six injuries expected to have been caused by a sharp object. The left ring finger was amputated. The other two fingers had fractures and cuts. On his right hand, one finger (fourth digit) was also amputated. He proceeded to give him medication and performed other tests. He conducted surgery on the imputed figures and stitched them (kushona Ngozi) and was admitted thereafter. Having done that, he filled in PF3 form for further steps. On his investigation, he discovered that the injuries were due to a sharp object. He also advised the patient on how to live a new life without some of the figures on his hands. PW5 continued to testify that the patient was received at the emergency department on 8th October 2021 but was brought to him on 9th October 2021. He added that by then, it was a procedure that a patient should start with the emergency department to gain stability before being assigned to a specific department. He tendered PF3 and was admitted as Exhibit P1. Cross-examined by the defense counsel, PW5 testified that he was trained at the International Medical and Technological University, Dar es Salaam, from 2006 to 2011. When he received the patient, he was still 9 unconscious, having lost blood. The patient was admitted at the Hospital for not less than five days. He admitted to have no evidence on that because at the Hospital they use the electronic system. Cross-examined further, PW5 testified that he spent approximately four hours doing surgery and stitching on the victim and the same was cross-departmental, including neural surgery and orthopedic trauma department. He admitted to being the one who filled in Exhibit P1. He testified further that the injuries or cut wounds were caused by a sharp object. He used his eyes and touched the wounds to examine the depth. He also admitted not to know the suspect. That was all about the prosecution evidence. Having closely examined the evidence adduced by PW1, PW2, PW3, PW4, PW5, and Exhibit P1, I noted that the prosecution established a prima facie case to answer, warranting the accused to enter his defense. As such, I addressed him in terms of section 293 (2) of the Criminal Procedure Act, Cap 20 RE 2022. Thereafter, the defense hearing proceeded as follows; DW1, KAISARI LEONARD MPINGE (the Accused), testified as DW1. He testified that on 19th January 2022, while preaching at Banana area near Big Mountain Bar as part of his daily duties as a pastor, a police vehicle approached. He was then arrested and taken to Stakishali Police Station, where he was remanded for 42 days. On 10th February 2022, IGP Simon Silo 10 came there and he shouted. IGP Simon Silo required the police officers on duty to call all remanded persons to explain why they were shouting. Having been called, he told him that he had been there for a long time. On 2nd March 2022, he was arraigned before Hon. Kihawa, RM in the District Court of Ilala for an offense of grievous harm in Criminal Case No. 86 of 2022. The case proceeded for six months before being discontinued by entering nolle prosequi by the prosecution on 9th August 2022. Thereafter, he was returned to Stakishali Police Station. Being led by the defense counsel, DW1 continued to testify that on 12th August 2023, he was arraigned before Hon. Mkwera, SRM in the District Court of Ilala for Preliminary Inquiry on the offense of attempted murder of Jimmy Mvungi (PW1). On 26th July 2023, he was arraigned for a Preliminary hearing before Hon. Nkwabi, J. DW1 denied to have worked with PW1 (victim). He also denied to have ever engaged himself in pork businesses. He pressed for evidence that he worked with PW1. Examined further, DW1 denied to have attempted to murder PW1 and argued that he came to know him for the first time on 5th August 2022. DW1 also denied being arrested by PW2. He further refuted PW4's argument that she recorded his Caution Statement. He implored this Court to find him innocent and set him free. 11 Cross-examined by the learned State Attorney, DW1 admitted to have heard PW1 naming him as his co-business partner and that they used to live together. He admitted to have not cross-examined him on such kind of relationship. Cross-examined further, DW1 testified that on 8th October 2021, he was at home within Kitunda, Banana area and not the area of the scene. He admitted to have not issued a notice of alibi. He added that he was arrested on 19th January 2022 while preaching at Banana grounds, although he had no evidence to prove that he was a pastor. Re-examined by the learned defense counsel, DW1 maintained his earlier position that he never lived with PW1. That was all about defense evidence. Having dispassionately considered the charge, prosecution and defense evidence, the question would be whether the offense with which the Accused Person is charged has been proved beyond reasonable doubt. At the outset, I should indorse the recommendable job by the prosecution and defense counsels. Indeed, in Ahmad Omari vs. Republic, Criminal Appeal No. 154 of 2005, Court of Appeal of Tanzania at Mtwara (unreported), the Court observed that, in a criminal case, the prosecution bears the burden of proof and the standard of proof is beyond reasonable doubt. This is in accord with Section 3(2) (a) of the Evidence Act, Cap 6 RE 2019. In the famous 12 case of John Makolobela Kulwa Makolobela & Another alias Tanganyika Versus Republic (2002) TLR 296, the court noted that a person is not guilty of a criminal offense simply because his defense in not believed; rather, a person is found guilty and convicted of a criminal offense because of the strength of the prosecution evidence against him which established his guilty beyond reasonable doubts. The onus never shifts away from the prosecution and no duty is casted on the accused person to establish his or her innocence. In Jonas Nkize vs. Republic (1992] TLR 213, Hon. Katiti, J (as he then was) stated; The general rule in criminal prosecution that the onus of proving the charge against the accused beyond reasonable doubt is on the prosecution, is part of our law, and forgetting or Ignoring it is unforgivable, and is a peril not worth taking Emphasizing the same standard, the Court of Appeal of Tanzania in Furaha Michael vs. Republic, Criminal Appeal No. 326 of 2010 (Unreported) had this to say; The cardinal principle in criminal cases places on the shoulders of the prosecution the burden of proving the guilt of the accused beyond all reasonable doubt In this case, the Accused herein stands arraigned for the offense of attempted Murder contrary to section 211(a) of the Penal Code (supra). 13 It was alleged that on the 8th of October 2021, at the Ukonga Mzambarauni area within Ilala District in Dar es Salaam Region, the Accused attempted to murder PW1. Section 211 (a) of the Code under which the accused person stands charged provides that; Any person who (a) Attempts unlawfully to cause death of another, is guilty if an offence and is liable to imprisonment for life. When considering the offense of attempted murder, the contents of section 380 (1) and (2) of the Penal Code must be considered. The section provides that when a person intending to commit an offense begins to put his intention into execution by means adapted to its fulfillment and manifests his intention to such extent to commit the offense, it is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offense, or whether the complete fulfillment of his intention is prevented by circumstances independent of further prosecution of his intention. The Court of Appeal of Tanzania in the cases of Samwel Jackson Saabai @Mngawi and 2 Others vs Republic, Criminal Appeal No. 138 of 2020 and Boniface Fidelis @Abel vs. Republic, Criminal Appeal No. 301 of 2014, articulated four ingredients of attempted murder arising from section 211 (a) read together with section 380 of the Penal Code. The 14 ingredients can be summarized as follows:- a) Proof of intention to commit the main offence of murder. b) Evidence of prove how the accused/ appellant began to employ the means to execute his intention. c) Evidence that proves overt acts which manifested the accused's/appellant's intention (over act means an act directed towards another person that indicate an intent to kill). d) Evidence proving an intervening event, which interrupted the accused/appellant from fulfilling his main offence to such extent if there was no such interruption, the main offence of murder would surely have been committed. According to PW1 (the victim), on 8th October 2021, he entered the pork kitchen room and opened the refrigerator to take some drinks. The Accused was also in the same room at the time. When he was taking the drink, the Accused attacked him from behind by using a machete (Panga) and he suffered multiple cut wounds on his head and fingers. Previously, the Accused set an electric trap. While showing the Court the old scar on his head and fingers, PW1 testified that four of his hand fingers were amputated. At the time of the attack, the Accused uttered the words “Leo ni lazima nikuue”. His relatives heard him screaming from the Kitchen. He was then 15 rushed to the nearest hospital and later, was referred to Muhimbili Referral Hospital for further treatment. He was unconscious for four days. PW3 (the victim’s son) corroborated PW1’s story. He testified that on 8th October 2021, at around 15:00 hours, after arriving from school, he passed through the Pork Kitchen Room and saw the accused together with the victim talking. He then went to take a shower. However, within a few minutes, he heard noises from outside. He went out to see what was happening and witnessed the Accused running from the Pork Kitchen Room. His shirt had blood stains. He went directly to the said kitchen room and found PW1 (victim) seriously injured. The victim was complaining that “Kaisari ananiua”. He was wounded on his head and fingers. He added that Joshua helped him to carry the victim to Kintonka Hospital. At the time, the victim was unconscious, and so he did not know what was going on. PW5 was a medical doctor at Muhimbili Orthopaedic Institute (MOI). He recalled that on 9th October 2021, he was at his workplace place when he received a patient with multiple injuries on his head and left hand involving three figures. On his head, there were six injuries expected to have been caused by a sharp object. The left ring finger was amputated. The other two fingers had fractures and cuts. On his right hand, one finger (fourth digit) was also amputated. He proceeded to give him medication and performed other 16 tests. He conducted surgery on the amputated figures, stitched them and was admitted thereafter. He also advised the patient on how to live a new life without some of the figures on his hands. Cross-examined by the defense counsel, PW5 testified that the patient was still unconscious when he received him, having lost blood. The patient was admitted at the Hospital for not less than five days. Cross-examined further, PW5 testified that he spent approximately four hours doing surgery and stitching on the victim and the same was cross-departmental, including neural surgery and orthopedic trauma department. He testified further that the injuries or cut wounds were caused by sharp objects. He used his eyes and touched the wounds to examine the depth. Initially, PW4 testified as an investigator. She testified that on 11th October 2021, while at her duty station, she was assigned to investigate the matter where PW1 was the complainant who was injured on his head and fingers. By then, the complainant was admitted to Muhimbili Referral Hospital, and the suspect was nowhere to be seen. She went to Muhimbili Referral Hospital in the Intensive Care Unit (ICU) department and met a doctor on duty, who informed her that the complainant or victim was unconscious. The victim stayed there for some time. The Accused, who was working at a particular pub within Banana area, was arrested by PW2 on 20th January 2022. 17 The arrest took a long time because the police force had no clear information from the victim because he was not okay. When he was okay, he provided clear information and that is when the investigation was launched. Later, the police force located the Accused and arrested him. In her investigation, PW4 discovered that the conflict between the Accused and the victim was fueled by the latter’s decision to hand over the pork kitchen business to another vendor. According to PW2, on 20th January 2022, at around 20:00 hours, he was at his duty station when he was informed that the suspect was within his jurisdiction around Banana area selling food and drinks. He went to Banana area and consulted the Bar owner. Having been shown to the accused while assisted by two other police officers, he arrested the accused and handed him to the police counter at Stakishali Police Station. After the arrest, the accused admitted to have committed the offense. From the evidence adduced by the prosecution, I am satisfied that the offense of attempted murder was proved beyond reasonable doubt. The Accused, PW1, and PW3, used to live together in one House, so they knew each other. In such circumstances, the question of mistaken identity can not arise. PW1 (the victim) was with the Accused in the pork kitchen room before the attack was launched. Before losing consciousness following an attack, 18 PW1 identified the accused to be the one who attacked him and that is why he heard him uttering words like “leo lazima nikuue”. Previously, the Accused set an electric trap that shocked PW1 upon stepping into it. When PW3 arrived at the area of the scene, PW1 was still conscious. He told PW3 that “Kaisari ananiua”. He was thus able to name the Accused at the earliest possible opportunity. It is a cardinal rule that the ability of a witness to name a suspect at the earliest opportunity is an all-important assurance of his credibility. This position was stated in the case of Marwa Wangiti Mwita and Another vs. Republic [2002] TLR 39, where it was held that; The ability of a witness to name a suspect at the earliest opportunity is an all- important assurance of his credibility, in the same way; unexplained delay or complete failure to do so should put a prudent court to inquiry. (Emphasis added) PW3 also corroborated PW1’s story. He testified to have seen the Accused running from the pork kitchen room. His shirt was dotted with blood stains. Soon thereafter, he quickly went to the kitchen room and found PW1 seriously injured on his head and fingers. He testified that they used to stay with the Accused in one House. As said before, the question of mistaken identity can not arise because it was daytime and the two had known each 19 other since 2016 to the day of the incident. He was one of the persons who escorted PW1 to Kitonga Hospital through the police station for insurance of PF3 (Exhibit P1). In the circumstances, I am constrained to find out that PW3 is a credible witness. PW2 arrested the Accused in the Banana area. After being arrested, the Accused confessed to him that he injured PW1. During the hearing, the defense counsel did not cross-examine such vital and incriminating testimony. In Damian Ruhele vs. Republic (Criminal Appeal 501 of 2007) [2012] TZCA 160 (2 March 2012), the Court observed that failure to cross-examine a witness on an important matter ordinarily implies the acceptance of the truth of the witness's evidence. From the above observation, I have no doubt that the Accused was recognized correctly at the area of the scene. The evidence of PW1 and PW3 points fingers at the Accused to be the one who attacked PW1. In fact, this is a case of recognition rather than identification because PW1, PW3, and the Accused had lived together since 2016. They knew each other even before the day of the incident. Recognition is said to be more satisfactory and more reliable than the identification of a stranger. This position was taken in the case of Kenga Chea Thoya vs. Republic, Criminal Appeal No. 375 of 20 2006, Court of Appeal of Kenya (unreported) where the Court observed as follows; Our own re-evaluation of evidence, we find this to be a straightforward case in which the appellant was recognized by the witness (PW1) who knew him. This was clearly a case of recognition rather than identification and as it has been observed severally by this Court, recognition is more satisfactory, more reassuring and more reliable than the identification of a stranger. Having so observed, the next question is whether the Accused intended to murder or cause death to PW1. To answer this question, one needs to re- evaluate the evidence available on records to see if it can safely be arrived that there was an unfulfilled intention to murder PW1. According to PW1 and PW3, the victim was seriously injured on his head and fingers. During hearing, PW1 was able to show to the Court the old scars sustained during the attack. According to PW5 (the medical doctor), the victim had multiple injuries on his head and left hand involving three figures. On his head, there were six injuries expected to have been caused by a sharp object. The left ring finger was amputated. The other two fingers had fractures and cuts. On his right hand, one finger (fourth digit) was also amputated. He conducted surgery on the imputed figures, stitched them, and was admitted thereafter. PW1, PW3, PW4, and PW5 testified that the victim was unconscious for some days. 21 Having been medically examined, the medical examination report (Exhibit P1) revealed that the victim suffered a Traumatic amputation of the right and left ring fingers, a fracture on the middle fingers, and multiple scalp cuts. Cross-examined by the Defense counsel, PW5 testified that he used approximately four hours to conduct surgery to PW1, and the same was inter-departmental. Initially, PW1 testified that before launching an attack. The Accused set an electric trap, which shocked him after he stepped into it. From the observation above, I am satisfied that the Accused intended to murder or cause death to the victim. The multiple injuries on the victim’s head and amputation of the fingers by using a panga (sharp object) are indications that the Accused intended to cause death to the victim. The words uttered by the Accused during the attack, “Leo lazima nikuue,” also indicate that he intended to murder the victim. His intention, however, did not materialize; it was interrupted in between. PW1 testified that he screamed during the attack and other people came. PW3 also testified that he heard shouts outside and when he went out to see what was happening, he saw the Accused running from the pork kitchen room. In my opinion, the shouts and arrival of some people at the area of the scene interrupted and prevented the Accused from fulfilling his intention. 22 In his defense, the accused (DW1) testified that on 19th January 2022, while preaching at Banana area near Big Mountain Bar as part of his daily duties as a pastor, he was arrested and taken to Stakishali Police Station where he was remanded for 42 days. On 10th February 2022, IGP Simon Silo came there, and he shouted. IGP Simon Silo required the police officers on duty to call all remanded persons to explain why they were shouting. Having been called, he told him that he had been there for a long time. Consequently, on 2nd March 2022, he was arraigned before Hon. Kihawa, RM in the District Court of Ilala for an offense of grievous harm in Criminal Case No. 86 of 2022. The case proceeded for six months before being discontinued by entering nolle prosequi on 9th August 2022. DW1 continued to testify that on 12th August 2023, he was arraigned before Hon. Mkwera, SRM in the District Court of Ilala for Preliminary Inquiry on the offense of attempted murder of Jimmy Mvungi (PW1). On 26th July 2023, he was arraigned for a Preliminary hearing before Hon. Nkwabi, J. He denied to have worked with PW1 (victim). He also denied to have ever engaged himself in pork businesses. Examined further, DW1 denied to have attempted to murder PW1 and argued that he came to know him for the first time on 5th August 2022. 23 Under cross-examination, DW1 admitted to have heard PW1 naming him as his co-business partner and that they used to live together. He admitted to have not cross-examined him on such kind of relationship. Cross-examined further, DW1 testified that on 8th October 2021, he was at home within Kitunda, Banana area and not the area of the scene. He admitted to have not issued a notice of alibi. He added that he was arrested on 19th January 2022 while preaching at Banana grounds although he had no evidence to prove that he was a pastor. Re-examined by the learned defense counsel, DW1 maintained his earlier position that he never lived with PW1. I dispassionately re-evaluated the evidence by DW1 and noted that it did not cast any doubt on the prosecution evidence. I examined the evidence of PW1 and PW3, and in the end, I was satisfied that the two witnesses were credible. They all testified to have recognized the accused in the area of the scene. Before losing his consciousness, PW1 was in the kitchen room with the Accused. During the attack, the accused uttered some words which the victim heard. PW3 also testified to have seen the two talking in the said room (area of the scene). He also saw the Accused running from the kitchen room while his shirt was bloodily stained. Having entered the said room, he saw the victim injured on his head and fingers. PW1 was complaining that “Kaisari 24 ananiua”. He thus mentioned the name of the attacker at the very earliest stage before he became unconscious. As said before, during cross-examination, DW1 testified that on 8th October 2021, he was at home within Kitunda Banana area and not the area of the scene. He admitted to have not issued a notice of alibi. For easy reference, I shall reproduce section 198 (4), (5) and (6) of the Criminal Procedure Act (supra); (4) Where an accused person intends to rely upon an alibi in his defence, he shall give to the court and the prosecution notice of his intention to rely on such defence before the hearing of the case. (5) Where an accused person does not give notice of his intention to rely on the defence of alibi before the hearing of the case, he shall furnish the prosecution with the particulars of the alibi at any time before the case for the prosecution is closed. (6) Where the accused person raises a defence of alibi without having first furnished the prosecution pursuant to this section, the court may, in its discretion, accord no weight of any kind to the defence. From the above, the accused was dutifully entitled to serve to the prosecution notice of intention to rely on the defense of an alibi before the opening of the prosecution case. Even if the intention came later (after the start of the prosecution case), he was still entitled to issue a notice with particulars any time before the closure of the prosecution case. Since the 25 notice was issued in accordance with the provisions of the law cited above, this Court is entitled to accord no weight to the Accused’s defense of alibi. In the upshot, it is apparent that all ingredients of Attempted Murder have been proved beyond reasonable doubt, and having considered the totality of the evidence placed before me, I find the accused person guilty of the offense of Attempted Murder as charged. Consequently, I hereby convict the accused person of the offense of Attempted Murder under section 211 (a) of the Penal Code, Cap 16 R.E 2022. H.S. MTEMBWA JUDGE 17.10.2024 PREVIOUS CONVICTIONS: State Attorney: My Lord, we don’t have records on previous convictions. However, it is on record that the victim lost some of his body parts. The weapon used was dangerous in nature applied to the very delicate part of the human body. We pray that severe punishment be meted out against the convict. H.S. MTEMBWA 26 JUDGE 17.10.2024 MITIGATION: Mr. Said Kivuyo – Advocate: My Lord, since the convict/accused is the first offender, we pray for lenient punishment. Convict (through virtual Court): My Lord, I pray for leniency. I have two young children to take care of. They are both minors completely dependent on me. I have also stayed in remand prison for two years and eight months since February 2022. I pray for leniency. H.S. MTEMBWA JUDGE 17.10.2024 SENTENCE There is no doubt that the maximum sentence for Attempted Murder is life imprisonment. However, section 211 (a) of the Penal Code uses the word "liable," meaning the Court has the discretion to impose a lesser sentence depending on the circumstances of each case. In the case at hand, 27 the convict is the first offender and has been in custody since February 2022. He also has two young issues to take care of; therefore, he deserves some leniency. However, it is worth noting that the attack by the Accused/convict caused severe injuries on the victim’s head and fingers by using a sharp object (panga) applied to the dangerous part of the human body (head) calculated to cause death and thus, it cannot be tolerated and or accepted. This Court was informed that the victim became unconscious for some days and some of his figures were amputated. He was thus made disabled. I have considered the mitigation factors as fronted by the learned defense counsel and the accused/convict. In the circumstances, I hereby sentence the Accused/convict to serve eight (8) years imprisonment from today. I order accordingly. Right of appeal explained. DATED at DAR ES SALAAM this 17th October 2024. H.S. MTEMBWA JUDGE 28 29