kuyani laimeri vs republic 1986 tzca 59 23 july 1986

IN THE COURT O P APPEAL OP T A N Z A N I A AT A R U S H A CORAM: MUSTAFA, J.A.; MAKAME, J.A. And OMAR, J.A. CRIMINAL APPEAL NO. 8 OP 1986 K U Y A N I L A I M E R I ....................A P P E L L A N T VERSUS THE REPUBLIC. . . . . . . . . . RESPONDENT (Appeal from the convic t i o n of the H i g h Court of T a n z a n i a at Arusha) (Munuo, Esq., PRM.) dated the 20th day of December, 1985 in C riminal Sessions Case No. 38 of 1982 J U D G M E N T O P THE COURT MUSTAPA, J . A . : The appellant was convicted of m u r d e r in the H i g h Court and is appealing. _ The deceased in the case was an e x - e m p l o y s e of the a p p e l l a n t and had given evidence* T o r 'the"probeC\ition in a oattle case in which- the appellant was involved as an ..j accused. Sho r t l y before t h e - d e c e a s e d was killed, the d e c e a s e d w a s tc appear at another case filed against the appel l a n t c o n c e r n i n g cattle,. . „ , ^v„ P . W . 5 alleged that he saw the appel l a n t on the r e l e v a n t m o r n i n g on a bicycle behind the deceased and c a l l i n g the deceased to stop. The deceased stopped and the appellant asked the deceased if he was g o i n g to court tf! t e s t i f y against the a p p e l l a n t ...The.a p p e l l a n t sounded a n g r y and P . W . 5 got frightened and hid , h i m s e l f . He then saw the a p p e llant s l a s h i n g the deceased w i t h a p a n g a on the "neck,''h&Ifc’ d s and fade, u n t i l the dece a s e d fell down. T h e r e a f t e r the appellant rode off on h i e ^bicycle to the river. The appellant w a s well known to P.W.5, a n d the incident toek place in broad day light* P . W . 2 was h e r d i n g cattle at the material time and h e a r d someone cr y i n g out an alarm. He went to the p l a c e from where the alarm was sounded and saw the ap p e llant c y c l i n g a w a y from the spot h o l d i n g a panga. P . W . 2 went n e a r e r to the spot and discovered the deceased b o d y in a p o o l of blood. P . W . 2 also k n e w the appellant well before the incident. The cause of death was extensive compound fractures, skull and external h a e m o rrhage. P . W . l also testified and stated that on the material day he had seen the appel l a n t p a s s i n g h i m behind the d e c e a s e d and wuot l o n g t h e r e a f t e r P . W . l learnt of the death of the deceased. The appellant raised the p l e a of alibi, a l l e g i n g that on the material day he was at h i s home h a r v e s t i n g >»eans. Mr. Ngalo for the appellant has r i g h t l y p o i n t e d out ihat the trial court had erred in sta t i n g in the judgment that "P.W.2 and P . W . 5 cle a r l y i d e n tified and saw the accused cut the deceased with a p a n g a . . . . >" It is true that only P . W . 5 saw the actual cutting. H o w e v e r that error is immaterial. P . W . 5 saw the cutting, and P . W . 2 corr o b o r a t e d the evidence of P . W . 5 in material particulars. The trial court r i g h t l y r e j e c t e d the p l e a n f alibi; the evidence i d e n t i f y i n g the appel l a n t as the p e r s o n who had attacked and ki l l e d the deceased was o ver w h e l m i n g . P . W . 5 could not have b£en mist a k e n as s ugge s t e d by Mr. Ngalo. We are satisfied that the appel l a n t was p r o p e r l y c onvi c t e d of murder. The appeal h a s no merit and is dismissed. D A T E D at A R U S H A this 23rd d a y of July, 1986. A. M U S T A F A J U S T I C E Off APPEAL L. M. MAKAME J U S T I C E OP APPEAL A . M. A. OMAR JUSTICE OF APPEAJ j I c e r t i f y that this is a true copy of the original. (J. H. MSOPPE) D E P U T Y REGISTRAR.