20040909 TZCA Dar es Salaam

(CORAM: LUBUVA, J.A.; MROSO, J.A., Ahd KAJI, J.A.) 1. STEVEN S/0 JASON_ 2. WILLIAM @ BATHAflUHEKA@ KAJAMBO S/0 KANANI 3. KEKIRIA D/0 SAMSON ., . .J th dated the 4day of June, 199~ m Criminal Sessions Case No: 188 of 1991 JUDGME.NT OF THE COURT ..: '•' i ... LU BU.VA, J.A.: This 1s an appeal° again::;t c9nviction ancl · sente.,Ke of death ~ . imposed on the appellants by the High Court (Mrema, J.) sitting at Biharamulo. The appellants were charg.ed with and convi.cted of the rr:urde1: of Etheri 1N/ 9 Dawson. · ec.:u t·1cir -.,· r~ase wa s· th1,c1 t-.. r-d urn· 1g 1.1- -rh e pros -) '5 • .L · h'~ of ...J. ,_ ,e mg ·• ocJrJ ... \/-,·..,II._. . . . Pn t·l7P _ ..... clel-c;:::i5-::id - ,\-..:~\..-· C vvas '.)leepin~J in her house, a gan;J of bandits -~ . ------· forced open the. door leading t-J her bF.:dmom using a big sto1-..e :, -:-:-/.,..;.!_,/ ~:\ ..:.(,!;. . , / 2 -' - popularly. knowr as ;'fat9ma". She '«as fatally wounded by use of a sharp weapon .. ·Her dead body was fqund lying a few paces· from the main door of the house in a pool of blood. Police investigation led to the arrest of the appellants. At the trial, the evidence against the appellants was largely circumstantial. First, the evidence of PW1, PW2, arid PW3 to the rd effect that the~3 _ appellant, Kekiria d/o Samson had arranged with·. the· ffrst and 'secpnd appellants to kill the deceased. Second, the : . - .· ··~ • ~· ~ ·, I . . . . .. . .:/ .:J>" caution statements of the appellants (Exhibits PS, ·a6 _and P7) and the extra-judicial statements ~Exhibits P9, P10 and P11). Althou·gh t:t1e _ . ~ \ appellants had retracted these stateme_nts o~ th.~~~round that theY:· . . . ~·. •, ·" . -~~:7~' -~ . were forced throug~ ~ortLire, counsel:for the ap_p_ellants did not obj.e.ct ~ainsr . the statements : . being. _..,· J\. tendered in court c)S evideo_L.~- . The, ---------·---·-····--·--·---·--···------- learn.ed. trial judge i ;helq. tbat :-; . due to failure of the defence .to. object. I • • • against the -~dmi?sion of the statements, the voluntariness, or -· otherwise. . of the· ' statements . . could•: not be tested. ... Nonetheless he held that the statements~ere volu~tary and t_ruthful. Based on this evidence, the appellants were cqnvicted, being dissa~isfied, this appeal has been preferred. ( In this appeal,· Mr. Muna, learned -counsel, advocated for the , ·. ··. .· . . , ~- . . . . ~ . . appellants and Mr. Rwabuhanga, learned State Attorney, appeared· .. ·· ... for the respondent Republic. Mr. Muna filed the following .grounds ·of • I . Ii 1:_, •· ....... ·• .,,. appeal: 1. The learned trial judge had erred in that by . :-holding that exhibits P4 and P9 amo~.!1ted ,.. : . ~"- l!.::. . _·.. }2~ c9nfess_io0s and tha~ they were Dbt~ed . . : . . : . ! ~--;. ~ : ~ . .) ..... , . fr.qm'the first ·appellant on his .own free will : .:-. •• ; • • I . , . '. : ! . I . • i:-f' ·: < ~nd w;ithout any tortur~ . • .. 2. T:hat the· ·learned trial judge had erred in : . . I . . = . law . •. 9y failing _to consi~er· I the ,.. evi9,l~~e of •.J.• ... .. tortur~ raised by l~t a~~f 2n~ ,_appellants at . . the time of extracting Exhibits P4, P6 and P7 on ~e ground that the same w~r~ not . ~ , objected to by the defence. counsel· before the closure of .. the prosecution : . case. ; .. 3. That the leasned trial judge erred in law by relying on Exhibits PS and P12 by Ibrahim Mapengo, a. co-accused 1 in findinQ the appellants guilty of the murder of~Etheri Oa.wson. 4 4. That_ ti)€ learned trial judge had erred J_n law by holding that the circumstanti~l evidence obtaining in the case irresistibl~ _point towards the guilty of thf: appellar:its. · Mr. Muna argued these ·grounds together. First, he sta;ted that -_ the second and third·--:appel~lants were implic!=3ted by the cautl_~: (Exh. . ·.-.·. •. ··- P4) and extra-ju_didal :(Exh: P9) statements \pf the first appellant. He ., further contended-th~t these statements were ~.ade und~r torture in . . .... which case they sh.o(dlci . not haye been admitted in evidence·· or relied ,.·l" ' upon by the trial judgi·. He maintained that the first appellant was not a free.agent when he made the statements to the police ,and the ·:·*-"' -~ · Justice of the Peace. That the first appellant was tortureQtta, • > • ••,,4_•;~~---:~ evident ,. • · from the fact that the Justice of the Peace indicated that he observed .• four bruises on the back· of the J~st appellant, Mr. Muna stressed . > }';· Counsel further submitted that once it had been brou·ght to the notice"" of the trial jud~e that torture was inyolved when the stat~ments were extracted from the first appellant 1 it was incumbent upon the judge to be cautious in accepting or relying on the I staten"lents as evidence against the appellants. Counsel" also urged . . that it was not proper for the trial judge to hold that as the defence . 5 had not Gojected when ;the· statements were tendered in evidence at . . '.. i ; ; : 'i . . ; ,•! . ; the trial, the; app'.ellant could not be heard at a later stage. - . . ' . . .. l complaining against the.admissibility bf the statements. With regard to the extra-judicial statement (Exh. P9) of the first appellant, Mr. Muna had also raised another point. He said when the statement was made, the, first appellant still had fresh memories of . his torture by the.police. In that situation; it was not a free and vo.luntary stat~rp_ent, he. stressed. · . ~ ~ :_ .::/'- ~ ' Finally, Mr.· Muna submitted that· as the second and third· . , v; a appellants were convicted on the basis of the first appellant's caution.· . .i4,:,, ' and extra-judicial statements, once - it is · acs;;.1p.1:~d that these · . , ~- statements were _inadmissible, then there was no evidence upon· which to gr9Und the _convic}i~_against them. On the other hand, Mr .. . . \ ._. ·- . . . t· . __ Muna urged· .th_pt ~'&'en if'·h is accepted that ·the statements were ·/ :, admissible,,_ stiH the,_ca~~ against \he appeHants. would not b✓ ·advanced any further because there was no independent evidence// So, he firmly insisted that the 1 corroborate the statements. against the appellants had not been proved conclusively. • I ., 6 On his part, Mr. Rwabuhanga, learned State Attorney, f .countered 1the .submissions by Mr. Muna. According to him, the s~atements (Exh. P4 and Exh. -P9) ·we_~e made freely by the first appellant. For instance, he said before the Justice of the Peace there was no ;r1reat, torture or force applied wh~c~ ·w.quld instill fear in the . . ~- . . . . . first . appeJ!ant to make false confessi_on. There .. was no rea·son . whatsoever for the first appellant to ·entertain fear· that unless he told . :~ the Justice~of the~,Peate What he alleged the police had forced him to • ~l ) . • •• ~j ,:./t't • ... . . . . . .. ! ..;\- -'· . . . . : . . • say, he would: similarly be subjected to torture, the State Attorney submitted. ·. :As t\le defence did not object to the admission of the:; stc!te~ents, Mr._ Rwab_uharr9a charged·- that th~_ l_e~r~§.d....t~l~_l_j_l:d_QQ.~. · . . . . : '. : • ; ·.. --.. -~.,js-1'~- .cannot be. faulted in a'qmitting the stat~ments (Exhibits P4 and P9). . ·---;_ . --~ ;-:---------··-- . ·----------·-· : ."a He also said that although:the statements Exh°ibits P4 and.P9 do not . . . . ! .· . . r ~- ! strictly amount to a confession in terms, of Sections 27 and 28 of the ; - ·r ,1 · Evidence Act, 1967, the statements, heavily implicated the first { . . . appellant as a participant to the killing of . the deceased. .. ,: It is common ground that the case against-the appellants is . l entirely based ~.on circumstantial evidence. There was no eye witness to the killH,g~_·of the deceased. The critical evidence against the appellants which the learned trial judgE-2 re.tied on was basecl on the 7 statements of the first appellant Exh. P4 and P9. Witli regard to the caution statement (Exh. P4) Mr. Muna sought to fault the learned . trial judge in no_t satisfying .himself that the statement was. voluntary. T'he_ ,--:-.:. statE;ment ·having · been .tende~_~g_jn. ~yid~_Q§!=_d_uring_ the Jrif31 -~-------·--···-- --···-:-··- ·--------·-· ------- : - ... - -----. . ·• ;Without objection ' . ·by the -·appellant_who ... . was . .. .duly .. represented, ..... we can . . .. . - - · · rsee no. basis for, f 9ulting th~ trial judge, on .·this aspect. .. In the ·- . . - .. . . . :... -·· . .; . : . . ! . . absente . ___ _,___ . of any objettion to the admission :of the statement when ......-........~-.1,j.~- .... ,,---. :·- ...... ----.--·-··--- ,.-•"6,.1,. ..... -- ....... ·,:---,...--...... ,._ . -·--·- ·:· - ·---:-··-,;·· ... -- .. the . .•. ' : .. ' ! prosecution sol.igh_t -tQ-;_ have i4 admitted, tHe learned: tf!al judge could ---- . i _,_ __ - ----------·· -. ---f~";;-t;·t······---~-~'.·---------~-------······--1····-··· .... · , · ·. · · not suo motu,· hold! ~'.,tri~I within a trial tb test the voluntariness of .-.--------=-----···-·--·--··:-· .... ··---··-·. ······-}···-··--·.:-••·· ·-·-···· .. ·············-·1 ·-···· . .. - . . ······ . . j the statements as Mr\ Muna seemed to suggest.- .,. :,; · t'\\ Ordin?rily, wh~~~____a_d..~J.?-sion of ev,id:~~~J.5.:i~~-~t~d _o~ t_h~ i •· •. .r ..• .I. ; . ·. \\ 9'.~__LI~d I \ ~~~! such evidence was ob~a~ned i~vO;unta;ily-~hP, trial court , - - ---· - • • • - • • ·- \ \o~de~:__a_t_r~a l_,v)thi~--~ ..t'.i~I i no;dfJ tg ~g9~iC'.' in to~vol u~fa ri ness or_ '1 \~Qier_V\l_ise. · In 'this case, as just observed, there was no ground for I . I I . ) • ~ J holding a trial within a .trial. So, the lec:irned trial judge was justified I in admitting· \he statements. VVe find no -merit in Mr. Muna's con)pla1nt in this regard. r:lowever it is common ground th~t the admissibility of evidence ----~---~----·-·-·-··-··-· ---------------- -·------·· -·- -··· ... - -·--·- ......' duhn~_-th_~ trial is_ o~_e thing,_and_ t_he__ ~~~8~~--!.o_~~-~~a~-~-~? ~? it is a:?t- . . ···- . ·--- ,. 8 : different matter. In ;this case, it is clear from the ·record that after closing the·- prosecuti,on c9se,; long .after tr:1e caution statem~nt _had : . 1. : ; . ·. . ;· been admittoo as ex·hibit ~4- t~e first appeliant alleged in his defence: that he made the caution :statement underitorture by the police who ) . ..- l . . ' ! . .! ' beat him. On this, the record also shows that the Justice of the Peace before recording the extra-judicfal- statement, (Exh. P9) ,t/ observed four bruises on his back. Furthermore, the_ first appellant's claim of torture whi!f; in the custody of the police was backed by ·.• . . ,. \ . ~. ::· s-- .•. . visible marks of injuhes. . ·1t was therefore incumbent upon the ~ learned trial judge to be more· cautious · in tne evaluation · and oonsideration or the caution statement. : In the light of tQ_e unf_olding ·---~~:~ . evidence of to.rture to the first appellant the'trialjudg~\J~s as it were . put on notice to analyse the evidence closely. Apparently, the judge • • / was awake to the allegation ;f ~orture. This is evideni from the / ( . i. . !-: judgment which in part, ~eads: ' ! :1 ,'.:::.J, Accused Steven also told this court .that the . .,: _. ·,, ·_ :• j OCS (Chande), Ernest (P'v\/3) and Police· Hamis . . I. . ·.1. . . -· forced him to repeat words w:hich wt=re being • I said by. Police Ernest (PW3) and ·chande 1Nas . recording them. Then at the· end of the day he vvas force.d to sign .the :.statement upon -· ( .9 assaults against his private parts by. use of a " • ; l! .. - . _plier. This is· another bewilderment. The. defence did not also rai~e o~jection against the admission of Steven''s· ca'ttion statement · · to PW3 because their learned defence counsel Mr. Katabalwa was definitely aware .of the c;:onsequence that would follow if, on b_ehalf of the accused, he would raise such objection. Thus ·the allegation raised by the accused •••• . · after the closure of the prosecution case could : ..; - •not· be .. tested through the :~leged tortures .••• .• • I, "f . ·,"(PW3Jt•'ocs Chande and Police Hamis. . By allowing the admission of. the contents of exhibit P4 and exh.ibit P9 to form part of the. record without demanding f_or thei_r :. Q,B!f19 : ' ~ ·. ·~·~";:. ·' tested by ·examining and cr6ss~exami.ning the witnesses: vJho had their connectiot.:with the . said 1exhibits it ~°Hl.d mean that t~e -defence a'ppq:)Ved ]their .·val\dity and or authentication and : as such, in my consider~LJ view, the i i i . ; . ~efence . Cannot now, at . t~e l . disadvantage ~ . of the ·prosecution, abhor exhibits P4.and pg .. (;'_~ -~ . ... . Fron'.") this extract, it appears to us that the learned trial judge took ·<I> the view that once the defence had not objectep to the admission of the caution statement (Exh. P4), no further complaint of ,. •. 10 . - dissatisfaction _against the statement s~ould_ be entertained. respect1 we do not agree with this view.. In our opinion 1 what the With defence was seeking to establish at the stage reached in the trial was . that in the lig~t of the evidence that torture had been involved 1 the caution statement should not be relied upon in convicting the first . ! .. appellant. In the light of the fact that the first appellant _had ~--------------- ······-·· .. G.·- . . . ·- sustained· !rijurie_s which he alleged were caused by the police 1 there was sufficier.it ba_s~.? for the judge to attach, little ff not-DQ__ vyeig_ht at all . ~.-<.. • .. - --- ·-~ j > ·.t ;. . ~' .-:.:~ ; ~ .., . . : ~ to the c·aution s~atem,ent_ (~?.\h-. P.4 ). T;he fact that the admission of ;·· : . ~~- ..: . . .' .( . : •i. • ·• ·. ·. ·1 . ., . : I the statement was not objected to-4:>y t~e defence does not in our· ; .. . .... ~ view, preclude: the trial court from· addressing its mind on the .· .·\?+! . :, :~:~ir. .evidence (Exh. P4) closely when analyztn.g_it. .. ·:L:itfJ . ' In t~e circumstances; ...having regard to the fact that the first . f~ ~ h· · appellant, Steven s/o Jason, had sustained injuries on his back which he alleg.ed were caused by the police while in police custody, the judge should not have accorded ~my weight to _the caution statement (Exh. P_4) of the first appellant. That is 1 the caution statement should .-------- have been discounted as evidence against the first appellant. 7 '· • 11 After discouriting the caution statement (Exh. P4) of the first appellant, there is still the extra-judicial statement (Exh .. P9). This, . Mr. Muna al~o urged th 9t it was not voluntary on -~he part of the first appellant because meil1ories of torture by the police were still fresh in his mind._ It is to be observed that t~e first appellant was arrested . . . . • . ,, by PW3 on 5.5.1990 vyheri in:the c:our~e of investigation,. his caution • : . l :! .... i • statement Exh. P.4 was recorded on 7:5:~go; . -F;r reasons ·already : ' i i . . ! . .• explained,· we tla,>-:e held that as it ·wa~· doubtful;" that the statement · ·-·.,. I . . i, ··.\ ; . ! - was voluntary, thElbenefit of doubt should be<iires9lved in favour of the first appellant by discounting the statement. . Briefly, we shall examine the circurnitances -in;...~t}ich the extra- . • . .. • .. . .~ ;..•.J~··&,. t'. .. judicial sta~ement was made. From the record it is apparent that. on . ·• _. ...... 11.5.1990 the first appellant m.9de the ~xtra-juditial statement to the _:: ]'y . . . . Justice of the Peace D.H. Lukindo, District Ma.gistrate. Following- the 1 procedure laid_ down _in the Chief Justice s Instructions to Justices of . .. . ~ the Peace, it is indicated that the mawstrate made it plainly clear that the first appellant was before a magistrate as a Justice of the Peace. \. The ·first appellant was informed that _ihe was free to ·make a . . ~ statement lf he so wished which could be used as evidence against him at tile trial. Upon examining ,.the fi!·st appellant's body. the 12 Justice of the/ Peace observed four bruises on his back: As just 1 ! .J i ! ; . / / i l. . observed, th_e~e- _ma:rks_ pf ii;1juries_ which the first appellant alleged h~ .. ; } ·! ' . . ., 1 . sustained while in boli~e custody were the basis of our decision to . . • .. I . · 1· discount the caution statement (Exhibit°,~P4). . . With:_ regard to the extra-judi.eial statement (Exh. P9) the issue .;- is whether it was voluntary. The learned· trial judge was of the · settled view that it was voluntary ·and- true._ Considering. all the · circumstanc~;\rE;lating .::: to the time when the first appellant was ,. . brought before the Justice of tne Peace until the statement was recorded, we are ·unable to acce_pt Mr. Muna's allegation tha\ the statement was made when the first appellant_ v-r8 s still haunted by . . .. .. ·--~-<,-i*~ . ,.·· -- ~- fear of torture. In the first place, un.l)ke the situation obtaining on · 6/5/1990, ·when the caution statement was made to the police, the . A ~ . . allegatio'n of_ torture was backed by, vfsible signs of torture and injuries, th~ circums~ances per_tai;ning to the extr_a-judicial .statement were differ:ent. ' From the decla:ration of the Justice of the Peace . ,.- there \N~~ ~o ba~\s for fear of torture . . O[l the other hand, if, as Mr. Muna alleged, the· first appellant was forced to make the statement to the Justice of the Peace, there 13 . . was no reason why he did not tell the Justice of tt1e Peace that he had ·been forced to come to make t.he statement. At the trial, the· first appellant claimed that when he was. making. the extra-judicial statement before the Justice of the Peace, a po-liceman whose n_ame he had forgotten, was holding his trousers from behind holding a •• pistol. The policeman was telling the ·ffrst appellant to tell the Justice of the Peace what he, the appellant, ha.d told the police. Suffice it to say that the learn_E;d .. :" trial judge was justified in rejecting this claim as ' ... ..:-:<·. . i 'f: .::· ~ ... - .. :;-.. , fiction on the 1i:1rtJ'o_f the first appellant. . It is: incredible that a . .'! fl I, mag_istrate of whatever level, would· bE:. so na·ive as to allow a -~ · . police·man to . h9_ld the accused pe~son - while record(ng the extra:-; • l • •. . judicial statement. . : In this case the magistrate irJVOi!c~ was a District . : -:.·- ,,. ..:..:,.:•.-tt· :. .. ·i.·< ._• .. -._.: .... Magistrate. Like the trial judge, we; have no reason to doubt the ; i • declaration . by the magistra}i: as .a /Ju~tice of the Peace that the • •• I I • • . . policeman was sent away when the e~trc1-ju,dicial statement (Exh. P9) was recorded. :; . F·u·r··th,.....r,..,,.,o~e . IC: Ill I / v~c: c::r-. f'1nd ,.. ,. . . a11~v II 1\/1~ l\-1 ··na's c1a;,..,,., i-h~l- ~l- l-ho 1-:~- l-1....- I l l . l"IU I I 1111 llldl OL Llh.... lllllt:: Ult:: ·, first appellant made_ the extra-judicial statement on 7.5.1990, he was i. · still haun~ed by fear of torture he had ~ndergone when the police recorded the caution statement unt::nab!e. VJhen the extra-judicial .. ' .. i 14 statement was takeri on 11.5.1990, .it was about. five (5) days after the caution statement. 1~ in our view 1 was sufficiently lon_g__for the . . . . ~ellant to cool d_own and appreciate that he was before a magistrate al}fr__J]ot · a ROlice officer. He had no cause for fear . ---- . . ,Rarticularly after the ;explanation and-questions by the Justice of the We reject the 'allegation that the first appellant was still 'I!' • ~ ; haunted by:.·febL-Wf.i_en !the first apgellan't made the extra-judicial I:- - • : . . . ! 11 ·• -lt-1· . $Jtement. . In,9:~r vi~w,·,he·was a fre~~- ·· '°'. . .:... •:,->. l . ' : ::·i' ' • I! ! ~ .we shall next consider the evidential value of the extra~judicial I· statement of the first appellant. In doing so, sight should no·t be lcfst of the legal ·position as set out under section -33 .. (J1fPf the Evidence . ~ . ., .. ~_,.:.··1: (, • . .. Act, 1967 regarding confessions against co-accused. In terms of the provisions of section 33 ( 1) .of the Evidence Act, 1967 when two or ''J. '~ ~..' '.!~ . • _!'- ):s, . . ·:1·: !;' ·. y _-;I •. .,,1 .• ;, 1-··: . more persons are being tried jointly for the ScJme offence or for ' Yl i ::_·) ·~!. different offences arising out of the same transaction, a confession of - :·,i ·: ]i,1 -.r.-·:::. . the_ offence by one of the accused persons affecting himself and the other person mav be taken into consideration against the other -~ :·. ·! "j. - \ 11;·•: .. . ,·'. person. ~ I . •j :.:··, .. · :-((. ji !·! \.t Jt•'.;:,_ ~; ':· .._:. l5 In this case fro:m the extra-judicial statements (E_xh. PlO and Exh. Pll), the second: . and third . appellants . denied any involvement in : , the killing of the decef1sed. likewise, t_heir caution statements do not . . incriminate them either. So, in terms of the provisions of sections 28 and 33 ( 1).;of the Evidence Act, 1967, the ·extra-jQdicial statements of . the second and third appellants are strictly speaking, not confessions . . . ·, . . They are~·statements in which the second and third appellants were . ~. . dissociating th~f.T}selves "from the· alleged killing, of .the deceased: . , ···.: .. , ·, ... " i• f :: . .. _ . However,· in her·,' extra-judiciai statement_ . Exh. Pll t the third appellant confirms that the coat whit:::h was found with the first~~--; appellant belonge_d to Dawson who was at one tim~ her husband. . . .. -· ·. . ~~~itf~ Ac.cording to her statement, during the 'ihddent, thJi:{coat was in the ' ·/! . house of th.e deceased. This evidence together with the fact that the first appellant showed pw3:·wttere the coat was 'hidden in his house, .. lll' • corrobo"rated the first appellant's extra-judicial st_atement (Exh. P9) in ., which he a_dmits being present at the seen~ _throughout the time . . ; when the ~teased was killed. . ·.j: :,• . . ,. ' 1· With regar,d to corroboration, ·it \s also to be observed that we ···.i ! do not agree w;ith the learned trial j,udge in holding that the first appeliant!s extra-judicial statement {Exh. P9) was corroborated by 16 rd the evidence of PW:1, PW2 and PVl/3 in connection . with the 3 appellant's evil design to revenge against the de~eased in 1988. In our view this is not corroborative evidence to the extra-judicial l .. /, .. ·. statement '.regarding the killing of the deceased on 3.5.1990. If ( ., . . anything at all, this may well be relevant_ to the motive for killing the I. deceased. ... ' ..., . 1·. ·. .: . ,,:· - -,,, .- .. . - As observed . earlier. 1 the only evidence : : .• ·~· against . the second . and .· third a;pellants_0-a~ ... :~ - the·extra-judici~I ~t~iemert:(Exh. ) .,.. P9) of the first .... ~ . -· appellant. ·_ The first appellant being a co-accused, according to section 33 (2) of the Evidence Act, 1967 his· evidence in the extra·- judicial statem~nt (Exh. P9) alone cclnnot -be.~ basis of the • . . . ... - ., ~L.-.,.:·:t ":· . .I "':, . . conviction agaih_st t~e second and third appellants. In the instant . case, si_nce the first appe!l~nt's extra.-judicial statement was not . • ~ :-: "A,· cor~obofated or: supported by other in:dependent evidence against the second and third ~ppellants the corv.i~t_ion against them was n~t . - !. ·-. ·:-·- .. proper1y' founded. Once the extra-judicial statement is discounted a~ \' '• regards the second and third appellants., there is no leg on which the case against them can stand. . 17 In our· view, the situation regarding the first appellant is different. His extra-judicial statement (Exh. P9) if believed to be .., . truthful wl1ch was corroborated, was sufficient basis for four)ding . conviction .J=lgainst him. The learn~d trial judge found the extra-: · judicial statement truthful and we can find no fault in this finding. I~ the extra-judici-al . ·. statement (Exh. P9) th~ . . -first _ appellant . sets out - in · detail how he, :together with the second appellant and Ibra_him @ Mapengo s/o·:•Gwa?~ now deceased,; were apprpached -by the third · rsfr•:· ! _ , .. appellant, Keki_ha d/o s·amson in order to effect the plan of killing the : . : ~ deceased'. For the -task, the statement further reveals, the third . :i .-~ ·,; ; ; ' ·... :'.i.••· 1 appellant promised to pay shilling~ ~0/000. The first appellant in :his i ' •. ·.•. ;.'~t extra-judicial statement claims to have .decli~ed ··Ute--:'bffer stating: Mimi nikas~_mi _hata zingekwwa eifu sitini . .. (60,00Q/=;) mimi siwezi. kufanya . majanga , hayo,_ na Gwasa Rug9shi akasema hivyo hivyo . . ... Tuliwasubiri watuonyeshe njia toka Mai.vuza kwenda Kanazi. Kekilia _alit~onyesha mimi _na . i Julius njia ya kutoka Maivuza kwenda Kanazi. . I Marehemu alifia pal-e pale. Tulipandisha hadi kufika katika shamba la kahawa la kijiji cha Mugoma, hapo Kekilia akasema vvevve Stephen pamoja na Gwasa zile elfu ishirini .rs (20,000/=) Julius amezishia hapo baadhi ya vftu walivyochukua kwa sehemu kilianguka ilik,ua ; koti, · riilikota na Kekilia akasema a,talichukua kwa,ngu Kanazi akienda kw·a Julius . ' . Ju:lius '. hakuja kulichukua haraka na likakutwa kwangu na polisL : t1 Q . i", .. From this extrac( the: question is whe~her the first appellant was a participant to. the killing of ·the deceased. The detailed account of the • ~ .:_,\ ' .! : . initial stages of th~';plan . .,. to kill the deceased, the role played by each . of the appellants in the plan and the sequenc~ of events leading to the death of the deceased, could not in our view, be given by a:· -. person who was not either a party to the plan or h.aQ-.:~\lowledge of it. . . . ·_· .- . ~-: , -~l:t\·i: ·: . Otherwise, it is :inco,1ceivable that al) this information was- t~rust upon ~ . the first appellant by the J~s¼ce ofthe· Peace or someone else as he ... . . claims. During. the trial the first appella_nt claimed that the coat was - his own property which he bought from a Burundi market. This was found by. the trial judge not to be true. We agree with him on this. The details of the information in the extra-judicial statement were ·--· ·:: "i ,; such that we are increasingly i~•clined to the view that the first appellant gave out the information freely on his own volition which was found to be truthful. 19 . ' ! ; .. · The next :qJestion is ;whether the first appellanfs presence at . I : . the:·scene where the dkcecised was killed was a passive spectator or . :,; :;:·_ ! -_". ·_ .i .. !. . .! :; ' ; . . . . yvas it purposeful and:·intentional. For; our ·part, we think the first : . : . a'ppella.nt wa~ not a mere passive spectator, his presence was such th_at it could be inferred that he approved of the offence. . . If, as he claimed in his defence, that he was not prepared to be party to- the killing of the deceased even if a higher payment.of shillings 60,000/= · · was offered ,· why:'did he remain at the scene all the time until the . ~YJ . deceased ·was kHled. With. the alleged disapproval of the planned ~- ,, $ ·, .: ~! .~ killing of the deceased, ordinarily, he would have left the scene of /:!{(j/::".· • ..crime immediately or at least, later, report to gover11rjlent authorities. ,· . . . -~~ .. !·· ... Instead, not only did he remain. there hut...,~lso accompanied the ; ··.! . . second and third appellants_all the· way frorn -the scene to his house . . . ! ~- . 1 with the coat taken from the deceased s house. The first appellant's conduct thro~ghout the time when the deceased was killed, cannot, · in our opini_on be E=xplained otherwise than that he was there purpo_sely efi)couraging the execut;ion of the agreed plan to kill the ,.. . dece~s~. 20 In the, circumstances of the case, we think the provisions of, .. section 22 (c.) of the Penal Code. aptly apply. In Oamiano. Petro and Jackson Abraham v. Republic (1980) TLR 260 the issue was whether the evidence was sufficient to prove the offence of aidir:,g . . .., and abetting. Discussing the application of section 22 (c) of the Penal (;ode, in part, the Court said: SeGond --;·~~~-~- .. . . accused . .- ·.· _: should not .have been ; ; ·)· . ~ ·• cd}ivkted ~-: as aider and · abettor as mere presen~e at the scene of crime is ·not enough to constitute a persqn an ·aider or abettor; the p~rson mu.st also parti~ipate in tre crimg. to sbme ;extent. The . appellant's. msence : : ~- .. .. : .. '7.,..:',t t. ~ witnes'sing the commission of the offence was i . ; '· . . ' . , .. . such that :as he did not express hls cjissent it .,,· \ can re_asonabfy · be i~ferred that -he willfully ;,. ' .··.' _~ encouraged the killing; of .the deceased. So, he ai_9ed and abe'tted the offence of killing the deceased. The principle of aiding and abetting was also enunciated in the English case of R v. Coney and Others (1882) 8 Q.B.D. 534. See I :· also the Court's decision in Makokoi Chandema v. Hassan Mtete, .. ·: Crirninal Appeal No. 193 0(1999 . .., . ..,. .• •·.: ._·a 21 FL.irther:~re, apart' from . the appellant's purposeful and intentional presence. witnessing the commission of the offence of I ,killing the deceased, he is also implicated by o9wson's coat. As shown from -the evidence, the coat which belonged to Dawson was . . . stolen from -~he house of the deceased during the incident leading to I her death. ·The firs\ appellant led the investigation officer (PW3) to, I ' / • • ... ··•.' I • ·, ..... -. · ·· ::r:;;,t his house where th·e coat was found .. He was therefore four\d in 1 ·: :· 1 . -~~ : possession of.)'t3aw~on'~- coat, an _a:rticle . whi_ch had· recently·. been ; l ; . . I . ·stolen from the deceased;s house durin·g the raiding incident when . / I the deceased was killed. That was also sufficient oasis upon which'to -. . .. : . ~ . . ~~ convict the first appellant as a p~rticiparff tg~~e killing of the dec~ased. His explanation of how he came by the coat- was na'ive ., and must be rejected. :: Ai· For the foregoing reasons,· we· are constrained to allow the . . . ·. ... ·• . . appeal ip respect of the second and t~ird appellants, namely, William . . .· 'I . ·.·1 •· .,:•.J . It . ,· i @ Batha~ruheka @ Kajambo s/o Kanani and Kekiria d/o Samson. Their .. COf1~icti9n is quashed and sentence set aside. They are to be -~; II released from custody forthwith unl~ss otherwise lawfully held. The .. .. I ,,. - ·l)( 1~~--,-~f-~t~:.L r~ ___ '. confe~sion. may well be. untrue. · It would be dangerous _to sustain a •. c.on·viction which is-·based on sucl) a· shaky ·confession .. V✓e · fe~! consfrained to ~!lovv tile <::1ppeal by quashing. the . convktioh of..the appellant for ,.the offence of m·urder and set aside the .depth' sentence. The appellbnHs to be set free Fortl,\Vith U!lless he is i-i'e!d for some other !ai.,vfvl-cause. ' ~' . · DATED at QAR ·Es SALAAf--·1 this 9,r: day of Septe.mber, ·200,f. .· o: Z. LUBUVA • l . ._·:_JUSTICE Of APPEAL .I •J.A. MROSO .·JUSTICE OF APPEAL c- N ,., ""lT . ~- ' .J-:\JJ ' JUSTICE OF APPEAL J certify .that this is a true copv, the _origlnal. j . ·.- . ·. 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