20080505 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM ORIGINAL JURISDICTION CRIMINAL SESSIONS CASE NO. 10 OF 2004 REPUBLIC VERSUS MWITA SIGORE@ OGORA JUDGMENT Mlay, J. The accused MWITA SIGORE@ OGORA, stands charged \. upon information, with murder contrary to section 196 of the ( 1 Penal Code, Cap 16 RE 2002. In the particulars of the offence it is alleged that, "MWITA SIGORE@ OGORA on or about the 13 th day of May, 2003 at Majohe Mji Mpya area within Ilala District in Dar es salaam Region did murder one BHOKE BABERE. At the Preliminary Hearing the following matters were found not in dispute: 1. That the accused is charged of Murder. 2. That the deceased died on 13/5/2003. 3. That the accused was arrested on 15/5/2003 at Gongo la Mboto area. 4. The postmortem report on the deceased's body. The postmortem Report was admitted at the Preliminary hearing as Exhibit P 1. During trial, the accused was defended by Mr. Lyimo learned advocate, while Ms Saiga and Ms Kaganda both State Attorneys, conducted the prosecution. The prosecution called five (5) witnesses to prove the charge against the accused. PWl BABERE CHACHA led by Ms Saiga learned State Attorney told this court that, in the year 2003 on 13 th May, he was living at Magohe Kipunguni in Ilala District Dar es salaam, with his wife named BHOKE BABERE and his children. He said the children were ROBI BABERE aged 8, --\ MARGARITA BABERE aged 4 and WANJALA who was under 1 year. PWl said he was in the business of selling eggs and his wife was engaged in gardening in a valley (bondeni) which he estimated to be about I k.m away (from the court building to Kigamboni). He said on 13/5/2003 he left his home on a bicycle with eggs while his wife left at the same time for the garden, while carrying a bucket, a sack (Kiroba). PWl went on to say they left their children ROBI, MARGARITA and WANJALA at home. PWl returned home from selling eggs at 2 4.00 pm and found the door to his house closed and the children were not at home. He parked his bicycle and went to look for his children and his children who were at a neighbours house saw him and came home. PWl said he asked the children where their mother had gone and they told him she had gone to "bondeni". PWl said he entered the house and found there was no food and he went out of the house and a neighbour told PWl that the children had not eaten any food because his wife had not returned since morning. PW 1 said his daughter. ROBI told him she had not eaten any food and WANJALA was crying because of hunger. PWl said he went to the garden where his wife had gone in the morning but he did not find her. PW 1 said he found a plate which his wife used for irrigation and he also saw some picked vegetables nearby. PWl said he asked some women who were watering their gardens nearby but they told him she may have gone to the bush (amekwenda porini) and would return. PW 1 said by then it was 6.00 pm. PWl went on to say he returned to his home and asked his child ROBI, if there was anybody who had come to their house and ROBI told PW 1 that MWITA had come there and asked for money and a sack (kiro ba) to send to her mother who was in the garden. Ro bi told PWI that she did not give him (MWITA) the money but MWITA entered that house and took a sack (kiro ba) from the house. PWI said MWITA was their neighbour and their houses were separated by a path only. PWI said his child ROBI knows MWITA because they used 3 '\ even to eat together and go out together. PWI said MWITA was the accused in the dock (points to the accused). PWI went on to say, after seeing that this wife had not returned home up to 7.00p.m, he went to one MUSA MASWEGA and found the wife of MUSA MASWEGA who told PWI that his wife had been there in the morning to collect manure but she had not seen her since then. PWI said it was getting dark and he passed through neighbours to enquire but they told him they had not seen her. PWI said he then went to the Ten Cell leader called NASIBU and NASIBU and other people went to the house of PWI. PWI said it was then 8.00 p.m and one person suggested they should go back to the garden and they went with a torch. PWI said they found the plate and the picked vegetables on the same spot. The person who had a torch suggested they should spread out to search. PWI said they saw a pile of leaves (majani) and a piece of khanga and then saw a body of a person covered by the leaves. The Ten- Cell Leader told them not to uncover it until they had reported to the police. PWI said MUSA and the Ten Cell Leader NASIBU went to report the matter to the police. PWI said he was confused, and that the body was in the bush, some three paces (3) from the garden. He said the police came at midnight and uncovered the body. PWI said there was arope around the neck tightened an a stick. He said it was a red manila rope. PWI went on to say all this time MWITA was not at his home. PWI said he went there and Mwita's wife said they had quarreled and MWITA had not 4 slept at his home. PWI said the police took the body and the following morning he went to make a statement at the Police Station. PWI went on to say the following day when people had assembled for the funeral, his child cried and PWl wanted to buy something for her. PWl looked under the mattresses where his wife used to put money. PWl said he did not find any money. He said the last time there had been shs.130,000 /- there. Upon being cross examined by Mr. Lyimo advocate for the accused, PW 1 stated: "I do not know how to write well. I can only unite my name and my fathers. At the police station I gave a statement. It was not read to me. If they write I had two children the police were mistaken. I did not fallow my children to my neighours. The children saw me and followed me and the neighbour came at the sametime what I am stating today I have my full faculties. On the day my mind was not settled. I gave a statement twice the second time was a week later. I gave a statement twice because I was called by the police. It was on the second 5 time I went to make a statement when I mentioned about the money. In the first statement I did not remember about the money. I know GESERO MARWA. He is my neighbour. Before my wife disappeared I had no quarrel with GISERO MARWA. I do not know why GISERO MARWA was implicated in this case. I was present when the Police took the body of the deceased. I did not see the police take finger prints from the body of the deceased. MWITA was my friend. Apart from being told by my daughter ROB! that MWITA came to my house and took a sack, there is nothing which I know to connect MWITA with the death of my wife". In reply to questions by the 1 st Assessor. PW 1 said MWITA was his neighbour and that they used to eat together and to go out together. He further stated: "I do not know why MWITA was arrested and charged with the death of my wife. The body was in the bush (msitu). The body was covered by leaves 6 :1 (majani) which had been cut. I did not inspect the body of the deceased to see it her naked body had injuries. The rope was tied around the neck over a stick which tightened around the neck. On the morning I last saw my write I did not check to see if the money was there. The accused was not at his home and did not return from the day of the incident". When questioned by the 2 nd Assessor, PWl stated that ISACK who had the torch was the first to see the body. The second prosecution witness (PW2) was NASIBU RAMADBANI. He told this court that he lives at Kipunguni B Kitunda Ward. He said: "On 13/5/2003 I was at home. BABERE CHACHA [PWlj came to report to me that he had not found his wife at home. He told me that his children had told him his wife had not returned home since she left in the morning. I am a Ten cell Leader of that area. I advised PW to consult his relatives first. At 8. 00 pm he came with relatives 7 and we went together to the area where the wife of PWl used to do her gardening. We were about 1 0 people. There was no electricity. We had a torch. At the shamba we found picked vegetables which had already wilted and a bowl used for irrigation. We started searching. There was a bush (msitu) nearby. One person !SACK NDOKOLI had a torch He started talking in a venecular which I did not understand. When I got near I saw a body in the bush about 4 or 5 paces from where the deceased had her garden. I told the people to wait until the matter was reported to the police. I went with other people including Mus~a to report to MAZIZINI POLICE STATION. The police obtained transport from Sitakishari Police station <;1,nd I went with the police to the scene arriving there at about 11 :30 pm. The police inspected the body and I saw the deceased had been strangled with a Manila rope rolled around a stick. The police took the body of the deceased. I did not see anythiny else". 8 Upon cross examination by Mr. Lyimo PW2 stated: The people who were talking in vernacular were relatives of the deceased. I did not understand the language I told the people not to touch the body before the arrival of the police. I do not know if the police took finger prints or not. I do not know their procedures. I am a Ten cell Leader. I do know a person by the name of GISERO MARWA. I remember he was arrested in connection with the offence. GISERO MARWA is my neighbour. GI SERO MARWA never told me that he had a love affair with he deceased and that her husband had threatened him. Even the husband of the deceased has not - told me anything of that kind. Upon being questioned by the 1 st Assessor, PW2 stated: "When we arrived with the police the body of the deceased was lying face down. The one with the torch !SACK was the one who saw the body first. It took time between 15 to 20 minutes of search before !SACK saw the body. The accused was living in the area. On the day we were searching for the deceased the accused was not there. 9 The accused had no home in the area but was living with a woman". Upon being questioned by 2 nd Assessor, PW2 stated: "I never received any report of a quarrel between the deceased and her husband. I never heard of a quarrel between the accused and the deceased. I remember the accused once came to me and asked about the cost of instituting a case against GESERO. He found my wife who told him to come later. He did not return. I do not know with whom the deceased normally went to shamba with". Upon further questioning by the 3 rd Assessor, PW2 stated: "We were more than ten people when we went to search for the deceased. The accused was not present among those people". The third Prosecution witness (PW3) was ROBI BABERE aged 12 years. After a Vore Dire examination the court was of 10 the opinion that the witness did not understand the nature of an oath but was possessed of sufficient intelligence to testify and understood the duty to tell the truth. PW3 was therefore allowed to give evidence not on oath. PW3 led by Ms Saiga learned State Attorney told the court that: "I live in the village. It IS called Kangaliani. I live with my grandmother, she is called WANKURU. I go to school I am in class four. The school is called Kangaliani. I am the first bom child. I have my younger siblings (wadogo zangu). One is called Wanjala. She is the youngest. The one who follows me is called WERIGO. Before I went to live in the Village I used to live in Majoye. I used to live with my mother. Here name is Bhoke. I also lived with my father. His name Is Babere[PWl ]. I know what business my father was doing. He was selling eggs. My mother used to cultivate in the shamba. I do not know the name of the place where the shamba was. She used to cultivate a garden. It was a vegetable garden. When my father went to sell eggs and my mother had gone to shamba I remained at home. I was with 11 my younger siblings (wadogo zangu). When I u;as at h9me with my siblings there came a person. That person is called MWITA. We used to live with him in the neighbourhood (Tulikuwa tunakaa naye jirani). There was on house between our home and where Mwita used to stay. When Mwita came he asked us to give him "viroba" and money so he could go to buy manure for my mother. I did not give him. He entered the house himself and took a "kiroba" (sack) and money. He left going towards the valley (bondeni). Mwita came there twice that day. First he came in the morning. I was alone with my younger siblings. He called us and we kept quiet. Then he left. He came a second time at 9. 00 am. I do not know where my mothers shamba wa$ I know Mwitq,. If I see him I will know him when he came he was black and tall. He is the one who is there (PW3 points to the accused in the dock) My mother did not come back from the shamba. Mwita did not return to our home". 12 PW3 was cross examined by Mr. Lyimo advocate for the accused, and stated: "When I came here in court I was with my Aunt. When we entered she was showing me that (points to the court of Arms). She was asking me to read what is on it. She did not point towards MWITA. I know MWITA. I never saw him quarrel with my mother and father. When he first came we did not reply to his call. We were afraid. Father had left home at 6. 00 am. Mother left with father. I used to live with fat her and mother. They did not quarrel. When Mwita entered the house on the second time he came there, I was outside. He took money it was in a box (sanduku). The box was inside the house. Nobodyelse came to our home that day. I know GISERO MARWA. He used to come once in a while (mara moja moja). I never saw GISERO MWITA quarrelling with any may father". Upon being examined by the 1 st Assessors, PW3 said: "When Mwita took the sack (kiroba) he went towards the valley". 13 To the second Assessor, PW3 stated: "The box was not locked. That was the first time for Mwita to come and ask for a sack and money". To the 3 rd Assessor, PW3 stated: "I do not know where my mothers shamba was". PW 4 was Mary Galus Tulu, Primary Court Magistrate of Kimam ba Primary Court. She told their court his before she went to Kimamba, she was at Mabibo Primary court and before that, at Ukonga Primary Court. She further stated their in addition to being a Primary Court Magistrate, she is also a Justice of the peace. PW4 stated that: "On 21 I 5/ 2003 the accused in the dock was brought to me by a police officer from Sitakishari Police Station. The accused remained with me alone in the office together with a Court clerk. I informed the accused he was before to Justice of the Police and that if he was willing to give his statement I would record it and it could be used as evidence against him. I asked him if he understood and the 14 eccused stated that he was willing to give his statement. I had already asked the police officer to leave and to be far from the office and I remained with the accused and the court attendant. The door was closed and I was alone with the accused and the court attendant only. The accused was in good health and I inspected his body he had an old scar. I recorded all the matters in the extra judicial statement. He did not tell me that he had any problem. I recorded his extra judicial statement". [Witness reads out the extra judicial statement]. The extra judicial statement was admitted as Exh. P2 after Mr. Lyimo advocate for Mr. accused had stated he had no objection to it. Upon cross examination by Mr. Lyimo PW4 stated: "The accused was bought to me as a justice of the peace. He was free to make a statement if he wished. In the Extra judicial statement there is no where he has admitted he killed someone". 15 The last prosecution witness was PW5, D2603 DCPL DENIS, a police officer. His evidence was that on 21/5/2003 he was stationed at Sitakishari Police station which is in Ukonga area. He stated that he was told by his office incharge Inspector Felix, that there was a suspect whose statement needed to be recorded and the suspect was brought to him by another police officer, Constable Munguatosha. The statement recorded by PW5 was objected to and trial within a trial was held after which this court ruled that the cautioned statement was admissible and as the result, admitted as Exh. P3. The Prosecution then closed its case and the accused having been addressed in terms of section 293 (2) (a) and (b) of Cap 20 R.E 2002, elected to give evidence in his defence, on oath. OWl MWITA SIGORE OGORA gave evidence as follows, led by Mr. Lyimo, his advocate: "I came to Dar es salaam in 1978. I was living in Mbagala Rangi Tatu. On 13/5/2003 I left my home in Majengo Mapya Majohe. I went to Kitunda. Majumba sita is in Ukonga area. I know BABERE CHACHA (PWl). He lives in Majohe. I know BHOKE. Previously Babere Chacha, Bhoke and I we were living together in Majohe Majengo ·Mapya. I left Majohe Majengo Mapya in March 2003. I did not have a wife there. There was woman for whom I had rented a room who was living there. She was called MARARE. I used to go there some 16 of the days. She used to stay at her place and I used to stay at my place. I know GISERO MARWA. I know him he was living in the area of Majengo Mapya Majohe. On 13/5/2003 when returning from Kitunda I passed by GISERO'S place. GISERO called me. He told me there was a certain issue today (kuna ishu Fulani leo). He told me that there is money somewhere if I can I should go to collect it for distribution between us. He directed me to the house in which the money was. He directed me to the house of Babere Chacha (PW 1). We were talking in an unfinished house which was not roofed. That is where he directed me where the money was. I left him at that house. I went to the house of BABERE CHACHA (PW 1). I found the children present. When I went for the money I was with GISERO alone. There was nobodyelse. I asked the children to give me sacks (viroba) for collecting manure. They gave the sacks to me. I found there was money in the sacks. I left I went to GISERO and we shared the money. After sharing the money after that I went home in Majengo Mpya Ukonga. It is about 1 ½ hours walk from Majohe. It is not true that I know how the deceased died if anything I am only a money thief. I did not know where Babere Chacha and his wife were at the time I went there. It was in the morning around 10.00 am. I was arrested on 19/5/2003. I was not told why I was arrested. I did not know what had happened. On 18/5/2003 I met Mwita Chacha who asked me to go to Baberes area where there was pombe. I refused because it was late. On 19/5/2003 17 I had gone to Ukonga Mwisho wa Lami and bought a newspaper then entered a bar and started to drink my pombe. That is when I was arrested. What has been stated in the cautioned statement is not true. I would not have remained at Gongo la Mboto. I went to the Justice of Peace and made a statement I denied to have killed someone. I told the Justice of the Peace I had only stolen money and that is what she recorded. I used to live with Babere and Bhoke up to his day I do not know who killed Bhoke. The accused was cross examined by Ms Kaganda learned State Attorney and answered questions from the 1 st and 2 nd Assessors. His evidence essentially remained the same as his evidence in chief. Mr. Lyimo then closed the defence case and both sides offered final submissions. Mr. Lyimo advocate for the accused set the ball rolling. He submitted that there is no direct evidence adduced to prove that the accused caused the death of the deceased and that only circumstantial evidence was adduced. He contended that the evidence of PW 1 was that he parted with his wife in the morning but when he returned, he did not find her and that PW. 3 Rabi informed him that the accused had come to their . home and asked for a seek and money. Mr. Lyimo stated that the same story was repeated by Rabi PW3. He argued that there was no evidence that the accused was seen killing the 18 deceased. He submitted that the evidence that the accused went to the house of PWl and took a bag and money, was not disputed by the accused himself. Referring to the evidence of PW4, Mr. Lyimo contended that the witness merely said he participated in the search of the deceased, found her body and reported the matter to the police. As for PW4 the Justice of peace who recorded the extra judicial statement of the accused Exh. "P2" only explains how the accused stole the deceaseds money. He contended that according to Exh. "P2", when the accused was sent to steal money by GISERO, the deceased was killed in the shamba when the accused was in the house of PWl stealing the money. Mr. Lyimo urged this court to accept this as the truth. Referring to the cautioned statement Exh. P3, Mr. Lyimo reiterated his position that it was not voluntarily made. He argued that even Exh. P3 shows that there is another person connected with the death of the deceased, who is the very person mentioned in Exh. P2, one GISERO MARWA. He submitted that both Exh. P2 and P3 leave a great doubt about the accuseds participation 1n causing the death of the deceased. Mr. Lyimo argued that he does not understand why GISERO MARWA is not in the dock or if that was not possible, why he was not called as a prosecution witness to dispute the accuseds evidence. He argued that according to law, if was not the duty of the accused to call GI SERO MARWA, this was the duty of the prosecution. 19 •. He submitted that there is no direct evidence connecting the death of the deceased with the accused and that the circumstantial evidence needs to be weighed very carefully and should leave no doubt. He argued that if the circumstantial evidence is taken together, it should leave no doubt that the deceased was killed by the accused. He submitted that the whole evidence from the prosecution witnesses does not meet this test. He contended that the evidence leaves a lot of doubt and according to law, the doubt should be resolved in favo-µr of the accused. For the above reasons Mr. Lyimo prayed that this court finds the accused not guilty and a quit him. () Miss Kaganda learned State Attorney submitted that at the Preliminary Hearing the following matters were found not in dispute: 1) That the accused stands charged with murder. 2) That the deceased died a violent death on 13/5/2003 3) That the accused was arrested on 19/5/2003 in Gongolamboto Mwisho wa Lami area. She further contended that according to the postmortem Report Exh. Pl, it was not in dispute that the deceased died of asphynxia. She went on to state that the prosecution called 5 witness to prove the matters in dispute. Referring to the evidence of PW3 ROBI BABERE, the learned State Attorney 20 submitted the that evidence that the on 13/5/2003 the accused went to the home of PW3 and told her that he was sent to take bags and money and that the accused entered the here and took out bags and money, was not disputed by the accused but actually tallied with the evidence of the accused himself. PW 1 confirmed that PW3 told him that the accused had come to their house and took bags and money. Ms Kaganda then referred to the evidence of PWS who recorded the cautioned statement of the accused, Exh. P3. She argued that PWS complied with all the required procedures in recording it. She contended that in Exh. P3. She accused stated how the participated in torturing the deceased and that they tied the deceased with rope and covered her mouth with a Khanga, which showed the intention to kill Bhoke. She referred to the evidence of PW2, that the deceaseds body was found tied with a rope around the neck and tightened by being rolled around a stick. Ms Kaganda submitted that this evidence tallied with the findings in the Postmortem Report Exh. P 1 that the deceased died of asphyxia. She further contended that the accused who was living in the neighbourhood of the deceased disappeared after the incident which raises suspicion. She referred to the case of AMIR MOHAMED VR (1994) TLR 138 (CA) where it was decided that the disappearance of the accused from the area and his conduct may show that the accused was responsible 21 . ' for the murder. She further submitted that the cautioned state1:1-ent [Exh. P3] gives an insight as to how the death of the deceased was caused and it could not have been made up by ~ the police. She refered to the case of HAMI SI ATHUMAN AND 2 OTHERS VS REPUBLIC 1993 TLR 110 and argued that, although the accused alleged he did not state all that which is contained in the cautioned statement, like in the HAMISI ATHUMAN case, it can be relied upon to convict the accused. Referring to the accuseds evidence in defence that he was with GISERO MARWA, the learned State Attorney argued that the Republic was not persuaded and for the failure to call GISER, it was for the prosecution to decide which witness to call to prove its case. She contended that the Republic had proved its case beyond reasonable doubt and submitted that an inference of guilt can be drawn form circumstantial evidence. She cited the case of ALI BAKARY AND PILI BAKARI VS REPUBLIC [1992] TLR 11. All the three Assessors gave were of the opinion that the accused was guilty of the offence as charged. The 1 st Assessor was of the view that the accused knew that the deceased was in the shamba, and the husband had gone away and took advantage of the situation and went to the 22 shamba and tied up the deceased and started questioning her about the money and that is when the deceased hoping to be released told him where the money was. The second Assessor took into consideration the Cautioned statement that the accused stated he covered the mouth of the deceased with a khanga and the medical evidence that the deceased did of asphynxia to find the accused guilty. The 3 rd Assessor found that the accused collaborated with another person not in court to strangle the deceased. On the evidence adduced, it has been established beyond reasonable doubt that the deceased RHABI C / 0 BAB ERE died on 13/5/2003 of asphynxia, as stated in the Postmortem Report Exh. PI. It is also established without any dispute that the accused was arrested on 19/5/2003 and charged with the present offence. It is also established by evidence of PW 1 and PW2 and from the Postmortem Report Exh. PI, that the body of the deceased was found in a bush near her garden with a Manila rope tied around her neck with a stick knot, constricting the neck. This proves that the deceased was strangled by using a Manila rope tied around her neck and tightened by a stick knot. The body of the deceased was also found to have 23 multiple bruises and abrasions on the face, neck, trunk and both upper and lower limps, as stated in Exh. P3. It can be inferred from how the rope was tied around the neck of the deceased that whoever did it, intended either to cause her death or at least, serious bodily harm. There is no doubt in my mind that whoever tied the rope around the neck of the deceased killed the deceased and did so with malice aforethought. The only issue left for determination therefore, is whether it is the accused who did it. As the learned Defence Counsel Mr. Lyimo reminded this court in his final submissions, there is no direct evidence offered by any of the 5 prosecution witnesses to prove that the accused killed the deceased Rhobi Babere on 13/5/2003. the prosecutions evidence, consists of circumstantial evidence and also includes a cautioned statement Exh. P3 and an Extra Judicial statement of the accused Exh. P2. The circumstantial evidence is based on the evidence of PW3 ROBI BABERE that on 13/5/2003 her father PWl and the deceased left together in the morning. After they had left the accused came to their house and called out but PW3 who was at home alone with her two younger siblings, did not answer to the accused who went away. According to PW3, the 24 accused came back later at about 9.00 am and asked the children to give him sacks or bags (kiroba) and money so he could being manure for their mother. According to PW3 they did not give the bags or money to the accused but the accused entered their house and took a bag or bags (viroba) and money and left, going towards the valley (bondeni). PW3 narrated this story to her father BABE RE CHACHA PW 1. PW 1 further confirmed that on the day of the funeral of his wife RHOBI BABERE, it is when he discovered the money which was kept below the mattress of their bed, had been stolen. An inference can be drawn from the evidence of PW 1 that PW3 did not known that any money had been stolen by the accused on 13/5/2003 and did not in form his father of that fact. However, the accused has admitted in his evidence in his defence and in both the Extrajudicial statements Exh. P2 and in the cautioned statement Exh. P3, that he infact went to the house of PW 1 and PW3 and look a bag or bags (viro ba) and money from their house. In his evidence he contends that he was given the bags with money by PW3 but whichever position is taken, it is not in dispute that the accused went to the house of the deceased and took bags and money from her house. PW3 a young girl of twelve testified not on oath but this court was satisfied that she was not only possessed of sufficient intelligence to testify, but also that she was a truthfull witness. The court is satisfied that it was the accused himself who entered the house of the deceased and took the 25 viroba and moriey and that he was not given the viroba and money by PW3. That on the fateful day the deceased died the accused twice came to the house of the deceased and on the second occasion entered then house and took money which was hidden in viroba, is the first thread in the circumstantial evidence, connecting the accused with the death of the deceased. A question arises as to how the accused knew that there was money in the house of the deceased and where the money was. According to the prosecutions evidence, the deceased went to her garden at 6:00 am, at the same time that PW 1 went to sell eggs. The body of the deceased was discovered at around 8.00pm in a bush near her garden, covered with leaves and there was a khanga nearby. The deceased was found tied by the neck with a Manila rope frightened with a knot on a stick, and the body had multiple bruises. If the death of the deceased is in anyway connected with the theft of money by the accused from her house, then it can be inferred that whoever gave the information that there was money in the house of the deceased and that the money was hidden in a sack (kiroba) which was under the mattress of the bed of the deceased, then that person must have inflicted the strangulation and the bruises on the deceased in order to obtain that information. Since the accu~ed admitted to have gone to the house of the deceased and stole the money, unless he can offer a reasonable explanation as to how he knew that 26 their was money in the deceaseds house and where it was hidden, it is an irresistible inference from the circumstance that, it is the accused who tied the rope around the neck of the deceased which caused her death, for the purposes of a obtaining that information. The accused has claimed in his defence that, he was given the information by one GISERO MARWA. In the order of things, one would have expected that if GISERO MARWA knew of the money and where it was, or if GISERO MARWA is the person who extracted the information from the deceased after trying the rope around the neck and asphyxiating her, why did he not go to the house of the deceased himself and take the money?. This would have been the most natural thing to do. Why did he have to send the accused who was in any case, known to members of the family of the deceased?. I find the explanation given by the accused as to how he knew of the money being in the house and where it was, that he was told and sent by GISEOR MARWA to take the money, to be unworthy of belief. According to the cautioned statement Exh. P3, the accused in a question and answer statement, narrates that early in the morning of 13/5/2003 her met GISERO and that they had met two days earlier to do something to the deceased. On that day, he and GISERO went to the place where the deceased was working in her garden and the two of than started torturing her. He stated: 27 "Mara Bwana GISIRO aliponiona mimi akamshika kwa nguvu na mimi nikawa nimefika tukaanza kumtesa huyo BHOKE W/0 BABERO kwa kumfunga kwa kuziba mdomo kwa kanga asisikike kelele zake. Baada ya hapo nikatumwa mimi hela kama alivyotuelekeza". The cautioned statement shows that at the time the accused went to collect the sacks or bags or "viroba" and the money, he had already taken part in assaulting the deceased, tying her up and covering her mouth with a khanga. Whether the accused did the act alone or in conjunction with the alleged GESIRO MARWA, the involvement of the accused makes him a party to the offence and guilty of the offence as a principal offender. See S.22 1 (c ) of the Penal C0de Cap 16 R.E 2002. The explanation given 1n the cautioned statement Exh. P3 on how the deceased was treated by the accused, tallies with the findings in the Postmortem Report and also, the evidence of PW 1 and PW2 on the state of the body of the deceased and how she died. The explanation in the cautioned statement could not therefore have been made up by the police 28 • or if the staterrient was made involuntarily as claimed by the accused, the accused was not made to make a false admission. I therefore find that threads of circumstantial evidence that the deceased went to her garden early that fateful morning, that the accused went to her house early in the morning after the deceased had gone to her garden and called out and that the accused came back later at around 9.00 am and asked for viroba and money and himself entered the house and took them, and the deceased was found dead near her garden tied with a Manila rope in the manner stated by the accused himself in the cautioned statement Exh. P3, leads irresistibly, to the conclusion that it was the accused whether by himself or in conjuction with another person, who caused the death of the deceased. Although the motive is not necessary to ground a conviction, in the present case, the motive was to obtain information as to where the deceased kept the money which the accused subsequently went to take from the deceaseds house. Like the three Assessors, I find the accused MWITA SIGORE OGORA, guilty of murder as charged and he is ~ convicted accordingly. J. I. Ml , JUDGE ----- 27/10/2007. 29 Ms. Kaganda: The accused has no record of previous conviction. Court: Does the accused have any reason to show why sentence should not be passed according to law. Mr. Lyimo: My Lord, there is only one sentence for the offence. However the accused is a first offender and has been in custody since he was arrested in the year 2003. that is all. SENTENCE. There is only one sentence which this court is authorised by law, to give, which is to suffer death by hanging. It is accordingly ordered that the accused is sentenced to suffer death by hanging. Section 323 of Cap 20 R.E 2002 complied. J. I. JUDGE 27/10/2007. 30 / / benefits on 27/7/2004 (exh. P.5). This is about three months from the date he was first promised to be paid. Even this delay cannot be said to have been unreasonable, 1n the circumstances. The third issue is therefore also answered in the negative. In the final analysis, this suit was filed without justification and it is dismissed, with costs. J. I.May, Delivered in the presence of the Plaintiff and in the absence of the Defendant with notice, this 5 th day of May, 2008. Right of Appeal is explained. J. I. JU lb E, / 05/05/2008 Words: 6,169 33 \