198606N

I •-'•- ' IN THE COURT OF APPEAL OF TPNZANIA AT MWANZA CORAM: MSTAFA,.J P AI: NAKAME, J.A. And KISANGA, J.A, CRIMINAL APPEAL NO. 23 OF 1985 PHILLINOt\ MATEREGO MAHENDE. APPELLANT VERSUS THE REPUBLIC. • . RESPONDENT (Appeal from the convic-iorz of 4-he High Cour+- of Tanzania at Mwanza) (Nunyera, J.) da-ed the 74-h day of December, 1984 in Criminal Sessions Case No, 176 of 1984 JUDGMENT OF THE COUR KISANGA, J,A.: - Theappellant was conic-edof murder and sen4-enced 4-0 dea4-h by the High Cour si-i-inga Musoma. He is now appealing againsd- bod-h convic4-ion and sen-ence. The faces of 4-he case were quil-e shorf and simple. The deceased - was among the group of a policeman and milii-iamen who wen- 4-0 jhe appellan4- 4 s village i-o apprehend suspeci-ed criminals. Thepary arrived 4- 4-he appellani-'s village in hesmall hours of 4-he nigh.-. They went 4-o 4-he appellan+-'s home bus- did no find him. i-here. They searched the appellan4-'s house and seized a number - of id-ems of proper+-y including m84-4-resses and bed shees-S sospecf-ed 4-0 have been si-olen. They took 4-heseand kepi- 4-hem as- a !neighbouring house and from here i-hey - wend- on in search of further suspeci-s; They arrested 4-WO suspeci-s and brough4- 4-hem 4.0 i-he - house where 4-hey had kep4- -- 4-heproperd-y seizedearlier on; As i-hey wêr fyit'g 4-he suSpeci-s, 4-he appellan u4-4-ered 4-hrea-5. 4-0 4-he effec4-4-ha4-4-hey should - disperse or else i-heywould see. Following this s-he appellari 4- sho4- 4-wo of 4-he milii-iamen wii-h arrows afi-er which he ran away. The deceased who was one - of 4-he vic4-ims s +-aken +-o - hospil-al where he died only a day or 4-wo las-er. From i-he posi- mon-em examinai-ion repori-, death was due 4-0 exi-ernal - bleeding following a stab wound on i-he lefi- i-high going through 4-he femoral vein and ar4-ery. - . .,.....,"2. -2- The appellant pu- up a defence of alibi. He s-a4-ed 4- ha 4- he had left his home - village abou4- five days prior -o 4-he inciderl4- 4-0 go fo a dis4-anf village in Shira4-i -o buy goods for s-tade. - He leff Shira4-i a- 11.30p.in . and cycled all riigh4- only 4-0 arrive homeaf abou4- 7 a.m. of 4-he very morning4-he inciden4- happened. In ofherwords, he was saying 4-ha*-when 4-he inciden4- happened he was s-f-ill on the way - from - Shira4-i cycling 4-owards hishome u-illage. He si-aed fur4-her 4-ha4- he had -o cycle a+- nigh4- because 4-he business he was engaging in was illegal. The learned rial - judge found ha 4- 4-ha appellan4- was edequa4-elyiden4-ified ai- 4-he scene. P.W.1 P;W.2 and P.W.3 +-es4-ified - 4-ha4- al4-houqh i4-waS a dark nighf, 4-her were - able 4-0 iden4-ify 4-he appellan4- by he ligh4- of a- leas- three 1-orcheS which 4-hey or other prosecufion wi'nesses shohe al- himbefore he ran away from 4-he scne The witnesses knew 4-he appellan 4- well before he incideni- 1 4-heyrecognized his vice and his dress and he was only abouf 30 4-0 46 paces The - learned judge duly consideredhe - appellan4- t S alibi and rejec4-ed if. The appeIlan4 had s-a-ed ha- when he lef - home for Shirafi he did no- inform anyone a+- home where he was going. The learned judge found it unusual 4-ha4- 4-he appellafl4- should se ou4- on a five-days journey Wi4-hou4- informing any member of his family. He also found if incredible 4-ha 4-he appellant could cover - a dis4-ance of over for4-y miles 84-nihf ravelling from Shjrai 4-ohis home village. No4- only 4-h54-,if is no-ed 4-ha- prior 4-0 makinghis defence lncour4-4-he appllanF had 4-Old a deIbereta-lie abou4- his whereabon4-s on he nigh4- of 4-he incidenf, e s4-a4-ed under cross-examina4-iorl i-ha'- heh8d 4-old he pplice fha- on he nigh4- of the inciden' he had sperl4- henight at 4-he house of a - woman called Nyakaho Nyarusahi, adding 4-ha4- he SO lied in Order 4-0 deceive he poliee who were bea4-inghith. If 14- is 4-rae 4-ha4- he had been 4-0 Shira+-i, why nol- sayso 4-0 4-he police ins#-ead of lying? If he was prepared 4- 0 lie 4- 4-he police in order 4-0 avoidalleged bea4-ing, was he no 4 - equally capable of lying 4-0 4-he court in order 4-0 avoid 4-he possible consequences of 4-he charge he was facing? , .... /3 — 3 We think '-ha4- 4-here was ample and clear evidence on which I-he learned *rial judge couldhave fonrid, as he did, 1-ha4- 4-he appellan4- was adequa'-ely idenifieda 1 4-he scene. The appellant's defence of alibi could rio'- have cas4- any doub4- on - such clear and si-rong evidence of idenl-ifica4-ion of 4-he appellan4-; 4-ha4- alibi was righfly teje-ed. 1n '-he resul we are sa1isfied 4ha1 his appeal - is wi4-houf meri4-, and 14- is accordingly dismissed in i4-s eni-1rey0 DATED at MWANZA his day of June, 1986, A. MUSTAFA JUSTICE OF APPEAL L. M. MAKAME JUSTICE OF APPEAL R. H. KISANGA JUSTICE OF APPEAL I certify 1-ha4- '-his is a 4-rue copy of 4-he original. .1 (J. H. MSOFFE) DEPUTY REGISiRAR.