20090709 TZCA tANGA

I ); i Ii THE COURT OF APPEAL!'oF TANZANIA . ATTANGA (CORAM: RAMADHANI, C.J; MSOFFE, J.A. And MBAROUK, l.A.) . CRIMINAL APPEAL NO~ 233 OF 2007 JORAM CHARLES MLO~I ... APPELLANT · VERSUS REPUBLIC ... RESPONDENT (An Appeal from the Dedsion of t~e High Court of Tanzania, ···at Moshi) (Munuo, l'.) dated the 29 th day-of June, 2000 . 1n . . 11 I Criminal Appeal No~ 24 of 1998 •••• I ••. I' I JUDGMENT OF THE COURT 3 & 9 July 2009 I RAMADHANI, C. J.: . I ;r MUNUO, J. (as she then was) convicte.tf the appellant, Joram Charles Mloli, of the murder of Jenas Nichol~us Mrema, the deceased, at . r Bamboo Bar, Old Moshi Road, Munjcipality of Moshi, Kilimanjaro Region, and sentenced him to suffer ieath by hanging. That was on 29 th June, 2000. The appellant now protests his innocence. I I Seven matters are not, and have not been, in dispute in this case: I . One, both ,the appellant and the defeased were employees of the Bamboo Bar. Two, they were left in the I Bar at late hours of .1ih July, 1996, as was usually the _case, sinJe they slept in the premises. ' I. th Three, in the morning of 13 July, 1~96, the deceased was found to have died violently in the Bar. F.dur, a bloody axe which was I I identified to be the one which the appellant used for his duties at the . I :1 I Ii 2 Bar, was found beside the deceased's body: Five, the appellant was the custodian of the keys of the store where the axe and knives were kept. Six, all doors of the Bar had not been broken into. Seven, the appellant, and his scanty personal effects, disappeared from Moshi until he was arrested in Dodoma on an unmentioned date. The case for the prosecution is that the appellant, it was, who killed the deceased. The appellant was the last person left with the deceased while alive, according to PW 3 on the night of 1th July, 1996, and so he has the onus to show, albeit on the balance of probabilities, what happened to the deceased. That is beefed up by some other circumstances, namely, that there were no breakages, the disappearance of the appellant and his personal effects. The account of the appellant is that on the fateful date he woke up at 0300 hours and went out to light a fire when he was confronted by five masked bandits who asked for keys. The appellant directed them to the deceased who was sleeping inside. As the appellant was blindfolded, tied up and left outside, he did not know what went on. Some few minutes later the bandits took off the blindfolds and marched the appellant to the Liberty Bar where he was put into a saloon ·car, blindfolded again and made to lie down. The vehicle sped of and many hours later he was jettisoned from the car. He managed . ,. - : -, : i . C ,, ; ,Ii ' . . ' ' 3 ·f .j} to unfold himself and real;zed that he las· at Gairo, Morogoro. He asked for some assistance and nianagedto get to his home village. //i · The appellant claims that he,was also ~odomized and that added to I 1 I his state of total confusion and hence hrs failure to report the incident to anybody. He was also looking for hisifather to tell him of his ordeal i and get his advice on the matter. I I j' There are two scenarios: According 1to the prosecution it was the i. appellant alone who killed the deceased. According to the appellant I, five masked persons did that not him.fl : I Before us the appellant had the services of Mr. Stephen Sangawe, ' j, I, learned advocate, who had two grout,ds of appeal: One, the evidence I, ' against the appellant was not· bey9nd reasonable doubt.- Two, the circumstantial evidence did not irrJ,sistibly I point at the guilt of the 1, appellant and was not incapable of iany other reasonable hypothesis. I, For all practical purposes the twd grounds boil· down to one; the ,,I, circumstantial evidence is not wate~ight. , . I I . Mr. Vicent Tangoh, State Attorney, appeared for the respondent/ .. t ~ Republic and supported the conviction. He submitted that the I . circum~tantial evidence irresistib!Y pointed at the appellant as the murderer and is not capable of apy other hypothesis than that of the guilt of the appellant. f f /, 1' I ,j 4 '. We have thoroughly traveled through the evidence which was before '' I ' (' MUNUO, J. and we are satisfied beyond all reasonable doubt that the /, circumstantial evidence satisfies the rule set in Simoni s/o Musoke v. I R [1958] E. A. 715 where it was held that: In order to convict on circumstantial evidence the inculpatory facts are incapable with the innocence of the accused person and incapable of explanation upon any other reasonable hypothesis than that of guilt That holding was adopted with approval by this Court in Hassani Fadhili v. R. [1994] TLR 89, where it was said that to ground a conviction on circumstantial evidence the facts must be incapable of more than one interpretation. We have already catalogued the seven undisputed facts and we do not need to recapitulate them here. The appellant's explanation is a cock and bull story. It is inconceivable that masked people would take the trouble of kidnapping the appellant after they had robbed the Bar. They had not been identified because of the masks. So, the appellant was not a threat to them. If anything he was more of a liability to them in making good their escape. Surely such a party would have been conversing among themselves in that long journey from Moshi to Gairo but the appellant did not say anything about it. .. The appellant also said that he left his belongings behind and that some one stole them. We ask why should one do that and leave I / 5 II , ~ / those of the deceased behind? So, it ~ust be that he took his clothes I l I with him. I / ' / We, therefore, uphold the conviction: and the sentence passed, and I we dismiss the appeal in its entirety. ! DATED in TANGA, this 09 th day'of Jul( 2009. I A. S. L. RAM'ADHANI 1 CHIEF JU STICE I l.H. MSOFFE I JUSTICE OF APPEAL M. S. MB~ROUK 1 ,.., JUSTICE 0 IF APPEAL . . . . < - I I certify that, this is a true copy of the original. ( ,I I / / 1 (P.r. L~IMO) II DEPUTY , EGISTRAR j