20170525 TZHC Mwanza

.. IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY ATMUSOMA ORIGINAL JURISDICTION (Mwanza Registry) CRIMINAL SESSIONS CASE NO. 30 OF 2015 REPUBLIC VERSUS 1. MAKAMBI S/O LUKUMBI@ NGUSA 2. SALIMIN S/O IGAYO@ SEWA KISUMO Hearing: 0lfh/ o!fh& 11th Ma½ 2017 Last Order: 11/05/2017 Date ofJudgment: 25/05/2017 For the Republic: Mr. Kainunura, learned Senior State Attorney assisted by M/s Ndunguru, learned State Attorney For the Defence: Mr. Adam Robert, learned Advocate Court Assessors: M/s Veronica Zephrine, Mr. Maira Maira and M/s Derita Michael JUDGMENT MAKARAMBA. l.; Before this Court two persons, namely; MAKAMBI S/O LUKUMBI @ NGUSA, the 1st accused person, and SALIMIN S/O · IGAYO @ SEWA KISUMO, the 2nd accused person, stand jointly charged with the offence of attempted murder of one SUMAI d/o Page 1 of 37 GILANDI, contrary to section 211(a) of the Penal Code, Cap.16 R.E. \~ 20.02, as per the Information filed in this Court by the prosecution. On the facts as could be gathered from the Court record, on the night of 05th day of July, 2013 at 1.00 hrs, a lady by the name of SU MAI d/ o GILANDI, the complainant herein, was invaded and attacked at her house at Kunzugu Village within Bunda District in Mara Region by some unknown persons who left her severely injured. The complainant has been left permanently disabled, for she lost her right hand from the elbow down, and has some clearly visible permanent scars on her right and left shoulders, and on her head near the right eye, and on her left and right thighs slightly above the knees. The extent of the injuries the complainant sustained on the fateful night of 05/07/2013 in the hands of her attackers is as evinced in the PF3 (Exhibit P2). Following police investigation into the incident, the two persons who are now before this Court, namely; MAKAMBI S/O LUKUMBI @ NGUSA and SALIMIN S/O IGAYO @ SEWA KISUMO, the 1st and 2nd accused respectively were arrested on diver dates, and upon being arraigned on a charge of the attempted murder of SUMAI d/o GILANDI contrary to section 211 (a) of the Penal Code, Cap.16 of the Laws, they have both denied the charge. The prosecution alleges that it is the two accused persons who are before this Court, MAKAMBI S/O LUKUMBI @ NGUSA and SALIMIN S/O IGAYO@ SEWA KISUMO, who on the night of 05 th of July, 2013 at Kunzugu Village within Bunda District in Mara Region unlawfully attempted to kill the complainant, Sumai d/ o Gilandi. As per the Memorandum of Matters Not in Dispute drawn and signed by the two accused persons, their Counsel, the State Page 2 of 37 ,.. - Attorney for the Republic and the presiding Judge (Hon. Maige, J.) at '-_. the Preliminary Hearing on 08/03/2016, the names of the two accused persons; their being charged with the offence of attempted murder; that the complainant, Sumai d/o Gilandi, was the wife of the first accused; and that, the complainant was injured in the attack are not in dispute. The Sketch Map of the crime scene drawn by Detective Corporal Joseph was also admitted in evidence at the Preliminary Hearing as Exhibit Pl. In making its case against the two accused persons, the Republic represented by Mr. Kainunura, learned Senior State Attorney assisted by M/s Ndunguru, learned State Attorney brought three witnesses. These are PW1, Sumai Gilandi, the complainant/victim of the attempted murder; PW2, Dr. Julius Augustine Rugambwa, the Medical Doctor who treated the complainant/victim and filled in the PF3 (Exhibit P2) and PW3, D.4550 D/Sgt. Mpangalala, the investigating and arresting Police Officer. The two accused persons were represented by Mr. Adam Robert, learned Advocate. They entered upon their defence by testifying under oath, MAKAMBI S/O LUKUMBI @ NGUSA, as DW1; and SALIMIN S/O IGAYO@ SEWA KISUMO as DW3. The 1st accused person also called his wife, MINZA TAWA, as a witness, who testified as DW2. In this trial I sat with three very able Ladies and Gentleman Court Assessors, namely; M/s Veronica Zephrine, the 1st Court Assessor, Mr. Maira Maira, the 2 nd Court Assessor, and M/s Derifa Michael, the 3 rd Court Assessors. Upon summing up to them the evidence of the prosecution and the defence, each Court Assessor gave his or her Page 3 of 37 independent opinions orally. Two of the Court Assessors returned a , verdict of "Guilty" against both accused persons, and one returned a verdict of "Not Guilty." I have, in this Judgment, given due consideration to the respective opinions and verdicts by the Court Assessors. On the facts on record, that, the person alleged to be injured, SUMAI GILANDI was in fact injured as evinced in Exhibit P2 is undisputable. In this case what remained was for the prosecution to establish beyond any reasonable doubt that; the alleged injury of Sumai Gilandi was under contrivance of the two accused persons, and that it is the two accused persons before this Court MAKAMBI S/0 LUKUMBI @ NGUSA and SALIMIN S/0 IGAYO @ SEWA KISUMO, who actually injured Sumai Gilandi. The offence of attempted murder with which the two accused persons stand jointly and together charged before this Court is established under section 211(a) of the Penal Code, Cap.16 R.£ 2002. The main ingredient of the offence is attempting unlawfully to cause the death of another and upon conviction it attracts a sentence of imprisonment for life. In the present case, two accused persons are involved who being accused of jointly and together carrying out their common intention of attempting unlawfully to cause the death of Sumai Gilandi. In the eyes of the law, when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, as it is the case presently, and in the prosecution of such purpose an offence is committed of such a nature that, its commission was a probable consequence of the prosecution of such purpose, each of them is Page 4 of 37 deemed to have committed the offence. The burden of proof is \ therefore only discharged when the evidence adduced by the prosecution has the conclusive effect of proving the guilty of the two accused persons beyond any reasonable doubt. Any doubts on the prosecution case, as a matter of principle must be resolved in favour of the accused persons. Pertinent to that is the fact that, the prosecution case must stand on its own, by the strength of the evidence adduced. This means that a weak prosecution case is never made strong simply because the defence case is weak. Always the prosecution must prove the case beyond all reasonable doubts and this burden does not shift onto the accused persons. On the evidence by the prosecution on record in this case, the victim of the attack and injury, Sumai d/o Gilandi, who testified as PW1 was the only eye witness to, and the victim of the attempted murder incident. In her testimony, PW1 gave a first account of the events which took place at her home on the fateful night of 05/07/2013 at 1.00 hrs. The main piece of the evidence of PW1 is her claim that she made both a visual and vocal identification of the perpetrators of the charged crime on the material night of 05/07/2013. The main issue which arises for determination by this Court is therefore whether PWl properly identified her attackers on the material night of 05/07/2013. In the course of her testimony at the trial, PW1 narrated how she heard the outside door of her house being knocked and broken open, how she woke up, sat on her bed, and lit a lantern "kibatari" and placed it on the side table close to her bed; how she saw the two accused persons entering her bedroom, that, the 2nd accused, SALIMIN S/0 Page 5 of 37 IGAYO@ SEWA KISUMO is the one who entered first holding a panga \ on his right hand and a torch on his left hand; that he was followed by the 1st accused, MAKAMBI S/O LUKUMBI @ NGUSA, who was also holding a panga. PWl stated further that the 2nd accused is the one who put off the lantern (" kibatari"J she had lit, and that it is the 2nd accused who beamed at her with the torch he was holding and which according to PW1, had very strong light, and in her own words she said, "litochi lilikuwa na limwanga likali sana." In her testimony PW1 also narrated the sequence of the attacks, saying that, the 2nd accused was the first to slash her with a panga, twice on her left shoulder and then once on her right shoulder; and that the 1st accused also slashed her -on her head across her right eye, and that, at this stage she started bleeding profusely and could no longer see what was going on, but she felt more panga slashes on her left arm and on her thighs close to the knee. PWl also stated further that all this time when her attackers were slashing her with pangas on various parts of her body, it was the strong light from the torch the 2nd accused was holding in his left hand while doing the slashing with his right hand, which enabled her to identify the attackers and also what they were doing to her, and that due to excessive bleeding she could no longer be able to see what was going on but felt various parts of her body being slashed with pangas. In her testimony, PWl also narrated that she recognized the voice of the 1st accused, who PWl claims that he uttered the words "mnamchezea huyd' on the material night. PW1 stated further that she recognized the voice uttering those words as being that of the 1st accused because it was very familiar to her given that her and him had Page 6 of 37 .J .. been married for a long time before they separated having been blessed with ten ( 10) children in their marital relationship. In her testimony, PW1 also stated that, she also recognized the clothing the 2nd accused was wearing on the material night, which she described as "a long green jacket", and that the 2nd accused did not cover his face, and also that, PW1 recognized the 2nd accused when the 2nd accused was putting off the lantern "kibatari" PW1 had lit on the material night and placed it on a table besides her 4' by 6' size bed in her small room in her one sloping roof house. A Medical Doctor, Dr. Julius Augustine Rugambwa of Bunda Hospital took the witness stand as the second witness for the prosecution. Testifying as PW2, the witness stated that on the material night of 05/07/2013 when on a night call duty he was called to the DOH-Bunda Hospital. That upon arriving there at around 2.00 am, PW2 saw the victim of the attack who was in a very bad condition, to the extent that they had to give her blood transfusion and administer some anesthesia to her before performing surgery on her, which lasted for about three hours. PW2 stated further that after performing the surgery, they admitted the victim at the hospital where she continued receiving treatment for a month before releasing her. PW2 also stated that he is the one who filled in the PF3 of the victim at the hospital, which he says that he was handed by a person whose name he could not remember. In his testimony, PW2 having tendered in exhibit, the PF3 of the victim, Exhibit P2, gave a detailed account of what he had filled in the PF3 with regard to the nature and extent of the injuries the victim had sustained on the material night, which have left her permanently disabled. Upon being cross-examined Page 7 of 37 about the crossing-over which appears on the PF3 as regards the date of examining the victim which initially appeared as 24/07/2013 but was crossed-over and the date of 05/07/2013 inserted instead, PW2 stated that this was a mere oversight as he had confused between the two dates so when he finally examined the victim for the second time after she had recovered, he discovered the error and rectified it. PW2 was also asked why the Police Case Number does not appear on the PF3, and he stated that someone whose name he could not recall had handed him the PF3 so he could not know why the Police Case File number was missing on the PF3. The third person to take the witness stand for the prosecution was D.4550 D/Sgt. Mpangalala. Testifying as PW3, the witness explained in detail how he went about to arrest the 1st accused and his son at the home of the 1st accused on the material night of 05/07/2013. PW3 stated that, following a phone call he received at 1.00 am of the fateful night of 05/07/2013, PW3 with some other police officers proceeded to the crime scene. PW3 stated however that on their way they met with some villagers who were carrying the victim on a stretcher to take her to the hospital and that upon asking the victim as to who was responsible for the attack, the victim mentioned to PW3 that it was MAKAMBI LUKUMBI and SALi MIN IGAYO (the 1st and 2nd accused respectively) who had attacked and injured her. PW3 narrated further that they took the victim and put her on a police vehicle and rushed her to the hospital left her there while being attended, and then left with other police officers to the home of the 1st accused where they managed to arrest him and his son at 2.00 am of the same night, and took them to the Bunda Police Station and put them in police custody. Page 8 of 37 In his testimony PW3 made a detailed account of how him, with the other police officers who went to the home j of the 1st accused and managed to make the arrest. That, first they knocked at the door of the house of the 1st accused for a while without any response but that after about 30 minutes, the wife of the 1st accused came to open the door for them. That they asked her where her husband was and that she responded that she did not know where her husband was. That PW3 entered into the house, searched in the first room but could not find the 1st accused there, but upon searching in the second room when he beamed his torch he saw legs protruding from underneath the bed, and that on ordering the person to come out, it was the 1st accused. That when the 1st accused person emerged from underneath the bed he was bare chest and had a black trouser on which had been spoiled with soil but did not have any blood stains. When PW3 was asked if he had given any police Statement he stated that he did give one but his Statement was not exhibited in evidence. However, when asked why he gave his statement almost one year after the in~idence, PW3 responded that, he was waiting to complete the investigation so that he could make a complete statement. When asked why he did not include in his statement to the Police the fact he stated in Court of finding the 1st accused hiding under the bed and his legs protruding, PW3 stated that he did not consider these facts to be that important. When asked by one of the Court Assessors if he conducted any search of the house of the 1st accused for any weapons involved in the commission of the crime, PW3 responded that he did conduct the search but could not find any weapons. Page 9 of 37 The above is summary of the evidence of the prosecution. I shall now albeit briefly go over the evidence by the defence. In his testimony Makambi Lukumbi, the 1st accused herein, testifying as DW1, he gave a detailed account of the event which took place on the material night, when him and his son, Gizela Makambi, since deceased, were arrested by the Police at the home of the 1st accused in connection with the alleged crime. The account DW1 gave in his testimony which essentially revolved around how he and his son got arrested on the material night tallies with that given by the prosecution side through PW3 and that of the wife of the 1st accused, Minza Tawa (DW2), in respect of the time of the arrest, which is 2.00 am of the fateful night of 05/07/2013. DW1 stated further that, the past misunderstandings between him and the victim of the attack, his former wife, Sumai d/o Gilandi, were minor incidences and that, they were reconciled and that upon they are separating they divided the matrimonial assets equally. According to PW1, she got married to DW1 in 1981 and they separated in 2009 and according to both PW1 and DW1 their married was blessed with 10 children. DW1 stated further that having separated each now live in his or her own home; and further that they have distributed the matrimonial assets equally among themselves, where DW1 gave PWl thirteen (13) acres of land and fourteen (14) heads of cattle which PWl took to her family. The second witness to take the stand for the defence side was the wife of the 1st accused, MINZA TAWA aged 28 years. Testifying as DW2, Minza Tawa narrated gave a detailed account of the arrest by the Police of her husband (DWl) and his son (since deceased) on the material night of 05/07/2013. DW2 stated that the 1st accused and Page 10 of 37 DW2 are "husband and wife'; and that, the 1st accused (DWl) and the victim (PWl) continued to live together as husband and wife during the four years of the existence of the marriage of the 1st accused to DW2 but they were living in separate households. In her attempt to dispel any suggestions of hard feelings between DW2 and the victim (PWl), DW2 narrated how she even managed to visit the victim (PWl) twice while hospitalized at the Bunda DDH after sustaining injuries from the attack, and that she (DW2) even remembered the victim (PWl) telling her (DW2) that, it was some unknown assailants who had attacked and injured her. However, in her testimony, DW2 having realized that she had earlier in her testimony in chief told this Court that it was her husband who had told her what to come to say in Court; and that, she did not know what she had come to do in Court, she apologized before this Court when being cross-examined by the prosecution attorney and conceded that, in this case her husband was being accused of injuring {kumjeruh1) his ex-wife, Sumai Gilandi. The last person to take the witness stand for the defence was the 2nd accused person, Salim in s/ o Igayo @ Sewa Kisumo. Testifying as DW3, the witness dwelt largely on his previous encounter with the Police, having previously been accused of and charged with murder cases. The first case was CC No.15/2013, where DW3 was being accused of the murder of Naomi Bukeya, and the second case was CC No.14/2013, where DW3 was being accused of the murder of Sabina Kaswahili. According to DW3 he was acquitted of the two charges of murder by the High Court. Page 11 of 37 DW3 stated further that, he was arrested on 12/09/2013 in connection with two murder cases C.C. No. 15/2013 and C.C. No. 14/2013. DW3 stated that at that time he was at his home in Ligamba "B" village, which is located at some distance from Kunzugu Village, where the alleged attempted murder incident took place. DW3 also stated that while in custody at the Bunda Prison in connection with the two previous murder charges, on the 26/08/2014 he was removed by a Police Removal Order and taken to the Bunda Police Station where he was being accused of being involved in causing injury to Sumai Gilandi. In his testimony DW3 also attempted to portray a picture of acrimony between him and the 1st accused, the genesis of which according to DW3 was the attempt by DW3 to reconcile the 1st accused with the elder brother of DW3 who was once caught having an affair with the then wife of the 1st accused, Sumai Gilandi. DW3 also tried to portray a negative image of his already strained relationship with the 1st accused to the extent that even when the two were in remand custody they never greeted each other. In his testimony, DW3 also threw accusations at PW3, S/Sgt Mpangalala by claiming that he (PW3) had once vowed to get him (DW3) since he (DW3) had managed to ''jump the hoof<' in the two previous murder charges for which DW3 blamed PW3 of trying to frame DW3 by laying serious criminal charges against DW3 for reasons DW3 claims he does not know. The above summary of the evidence by both the prosecution and defence as presented by their respective witnesses, pave the way for Page 12 of 37 the analysis of this case on two major issues for determination by this Court, namely; whether the alleged injuries of Sumai Gilandi were under contrivance of the two accused persons before this Court, and whether it is the two accused persons before this Court who actually injured Sumai Gilandi. On the first issue relating to the perpetrators of the alleged injuries the victim sustained, since this case involves two persons who are alleged to have formed a common intention to prosecute an unlawful purpose in conjunction with one another, and that in the prosecution of such purpose an offence has been committed which is of such a nature that, its commission could be said to be a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence. As a matter of principle a common intention is attained where the alleged attack event was planned by the two offenders. On the evidence on record, apart from the two accused persons in this case being alleged to have been recognized by the victim of the attack at the scene of crime slashing the victim as PWl has stated, there is no any other evidence before this Court showing that, the 1st and 2nd accused persons concerted to commit the alleged offence. There is no iota of evidence showing that, the 1st and 2nd accused persons met prior to the occurrence of the incidence of attack and injury of the victim. Furthermore, there is no evidence that, the 2nd accused and the victim had any hatred between them or any sort of misunderstandings, particularly given that it is the 2nd accused who had once reconciled the 1st accused and his ex-wife following the alleged incidence of extramarital affair between the victim and the elder brother of the 2nd accused. Furthermore, there is no iota evidence to establish Page 13 of 37 that, the 2nd accused was paid to commit such a heinous attack on the victim or in any way influenced or assisted the 1st accused in accomplishing his mission of injuring the victim, if any. What is before this Court by way of evidence on record is the allegation by PW1 of having seen and recognized the 1st and 2nd accused persons at crime scene of crime on the fateful night of 05/07/2013. The legal question which arises for determination therefore is whether by the mere fact that the two accused persons were seen at the crime scene, constitute a common intention?! am enthused by the answer to this question by the statement of principle given by the Court of Appeal in its decision in the case of Deogratias Nicholaus @ Jeshi and Another v. R, Criminal Appeal No. 211 of 2010, (CAT) at Mwanza (unreported) where the Court citing with approval the case of GODFREY JAMES IHUYA v. R (1980) TLR 197 held that; ''I understand that to constitute a common intention to prosecute an unlawful purpose ... it is not necessary that there should have been any concerted agreement between the accused persons prior to the attack of the so called thief. Their common intention may be inferred from their presence, their actions, and the omission of any them to dissociate himself from the assault " If there was a common intention which could be inferred from the their presence, actions, and the omission of any them to dissociate himself from the attack, the next lingering question this Court asks itself is what was the motive for the 1st accused to perpetrate such a callous attack on and seriously injure the victim, who is his ex-wife? The Page 14 of 37 evidence on record is that in his testimony, DW1 dispelled any past , misunderstandings between him and the victim, Sumai Gilandi, his estranged wife, by brushing them aside as being only minor incidences; and further that they had already been reconciled; and that they had even divided pari pasu the matrimonial assets. In her testimony PWl tried to paint a picture of dissatisfaction on the part of the 1st accused to a refusal by PWl of the alleged move by the 1st accused to get back together with the victim, which apparently according to PWl is what most probably got the 1st accused infuriated and thus seeking as a revenge to attack her (PWl). If this could be taken to be the motive behind the attack, how could the fact stated by DWl that he readily accepted the offer by the victim to separate and they had even shared pari pasu the matrimonial assets be explained? Furthermore, considering the fact that, the 1st accused and the victim had separated since 2009 after having had ten ( 10) children of the marriage, and that the fact that the 1st accused is since married to another wife, DW2, with whom they have been blessed six (6) children, what would therefore prompt the 1st · accused into taking such callous attack as a way of revenge against the victim four years down the line, and in 2013? If this Court was to accept, which it does not, the possibility of the callous act of the 1st accused being motivated by the refusal by the victim of the offer by the 1st accused to get back together with her, why would the 1st accused decide to attempt to eliminate the very person he had readily agreed to separate from, and in any event the 1st accused having already gotten married to another woman, and each having her own home, also escapes any reasonable and probable explanation. Page 15 of 37 In the course of summing-up the evidence of the prosecution and the defence to the Court Assessors, I invited them to give their opinions on whether the alleged refusal of the offer by the 1st accused to get back together with the victim could be the reason behind the callous attack by 1st accused. This direction sought to elicit opinions from the Court assessors since they come from and represent the opinion of the communities where the accused persons reside. Unfortunately none of the Court assessors gave any opinion on this issue. I am of the firm view and given the evidence on record, and particularly the fact that, the 1st accused had already been married to another wife, that, it would be extremely dangerous to try to imagine and conclude that the refusal by the victim of the offer by the 1st accused to get back together with her as married couples could be the reason which prompted the 1st accused into callously attacking and injuring her in revenge. Even if this Court was to buy into the idea that the refusal by the victim of the offer by the 1st accused to get back with her in marriage was the motive behind the callous attack, which as I stated earlier I do not think it is, what probably would be the motive behind the 2nd accused, also acting in common with the 1st accused to accomplish the intention of the 1st accused to attack and injure his ex-wife? The entire evidence on record does not show or reveal a modicum of ill motive behind the 2nd accused to commit such unlawful act. There is no iota of evidence establishing that the 2nd accused stole anything from the premises of the victim on the material night. Furthermore, much as motive of attempting to kill is not an essential component in an attempted murder case, as it was succinctly stated by the Court of Page 16 of 37 Appeal of Tanzania in its decision in the case of John Petro Mbuguni and Another v. R., Criminal Appeal No. 172 of 2011, (CAT) at Arusha (unreported), however in its decision in the case of Stanley Anthony Mrema v. R., Criminal Appeal No. 180 of 2005, the same Court of Appeal of Tanzania sitting at Arusha (unreported) held as follows; "We are aware that it is a settled principle of law that motive can be considered when weighing the prosecution case [see, for instance, R v. K. Tindikawe {1940} 7 EACA 67]. However, we are settled in our minds that going by the reasons . given by Mr. Kimomogoro, motive was not appropriately invoked in this case. We are increasingly of the view that the established fads are not consistent with the existence of malice aforethought. " Even though motive is not an essential component in offences of this nature, the victim in this case having invoked as a reason her refusal to the offer by the 1st accused to get back with her as being her explanation for the callous attack by the 1st accused, this Court considers it is worth of consideration when weighing the prosecution case particularly given that, in the present case two persons are being accused of having contrived to commit an attempted murder of the victim. The missing link between the two accused persons to what they are alleged to have committed is clearly visible given the paucity of evidence on record. This issue would be considered to be of lesser weight when weighing the prosecution case and could only add weight to it if it could be established that, the two accused persons were not Page 17 of 37 properly identified at the scene of crime, which I propose now to turn to consider. In this case, the second main issue for determination is whether it is the two accused persons before this Court MAKAMBI S/O LUKUMBI @ NGUSA and SALIMIN S/O IGAYO @ SEWA KISUMO, who actually injured Sumai Gilandi. In determining this issue I propose to start by tracing the evidence by the prosecution on how the 1st and 2nd accused persons were alleged identified by the victim (PWl) at the crime scene on the material fateful night of 05/07/2013. In her testimony, PWl told this Court that, at the crime scene at her house on the fateful night of 05/07/2013 at 1.00 pm, she recognized only two persons, the 1st and 2nd accused persons slashing her with pangas on various parts of her body. According to PWl, the 1st and 2nd accused persons were the only two persons who entered her bed room on the fateful night and that they were the only two persons who slashed her with pangas. According to PWl, the 2nd accused was the first person to enter the room and he was also the first person to start slashing her with the panga he was holding in his right hand, two times in her left shoulder and once on her right shoulder. According to PWl she then heard, the 1st accused uttering the words, "mnamchezea huyo." This statement "mnamchezea huyd' is pregnant with contradiction. Clearly, the statement "mnamchezea" which is expressed in the plural, implies as if the 1st accused was addressing more than the two persons, and according to PWl it was only the 1st and 2nd accused who were the only two persons in her room on the material night. Now, the question this Court asks itself is this, if indeed we assume that the 1st accused was addressing the 2nd accused Page 18 of 37 alone, why would he (the 1st accused) utter a statement to the effect that, "mnamchezeya huyd' which seems to have been directed at more than one person who as PWl claims, only two persons were in the room and the 2nd accused was the one presumably being addressed by the 1st accused. Clearly since PWl never told this Court that they were more than two people in her room on the material night, the statement which PWl claims that the 1st accused uttered to the effect that ''mnamchezea ·huyd' having for all intent and purpose being directed at more than the only two persons PWl claim she saw in her room on the material night, this casts serious doubt on the prosecution case as to whether the circumstances at the scene of crime were conducive for the . victim (PWl) to be able to identify her alleged assailants on the material night. Looking at the evidence by PWl, it is critical that, the aspect of the positioning between the victim and her assailants be established without any mistake. This is so particularly given the force with which PWl claims that the assailants used in gaining entrance to her house; that first she heard the outside door to her house being broken open, that the two assailants got into her room after pulling and taking off the curtain which was hanging by the door to her bedroom; that each assailants was brandishing a panga; and the fact of the victim, a woman, being awoken at the dead hours of 05/07/2013, and that she sat on her bed observing all what was happening on that night. Given the surrounding circumstances of the commission of the alleged crime on the material night, and particularly considering the charged atmosphere as the victim has explained, and the fact that the attack happened during the dead hours of the night at 1.00 am, the Page 19 of 37 possibility that the victim was not under great fear as she herself has explained when testifying, clearly affected her ability to be able to properly identify her assailants. Under those circumstances, the victim could not be said that she had ample to see all what she claims happened on the material night while seated on her bed with the light from the lit lantern having been put off by one of the assailants to properly identify her assailants. In her testimony, PWl also stated that she was able to identify her assailants with the assistance of the strong light from the torch the 2nd accused was holding and which he was beaming at her. The nagging question is how possibly could it be that the alleged strong light emitted from the torch PWl claims that the 2nd accused was holding in his left hand and beamed at the victim make the victim able to see her attackers, given the fact that it is common basic science that light emitted from a torch source travels in a straight line and enables its holder to see his target and not the attacked to see her attackers. Given the fact as PWl narrated here in Court that, the lantern "kibatari "she had lit when she heard the outside door to her house being broken open had been put off by the 2nd accused when they got into her room, this creates more doubts as to whether indeed the victim was able to identify her assailants and that she could be able to see the person who was holding the torch whose strong light was being beamed at her but she was not the one beaming at the assailants. Furthermore, upon being cross-examined PWl stated that, she was able to recognize Makambi Lukumbi by his face, but did not look at what Makambi was wearing, since she was trembling with fear, and Makambi Lukumbi was holding a panga. The fact of the victim Page 20 of 37 trembling with fear therefore cast doubts on her testimony that she managed to identify the assailants. This Court is left wondering how possibly could PW1 only look at the face of Makambi Lukumbi but not at what he was wearing while PWl had told this Court that she managed to see what the 2nd accused, Salimin was wearing and even described its colour, a long green jacket, and this bearing on the testimony of PWl that, both assailants got into her room at the same time, the 2nd accused in front followed by the 1st accused, and assuming that it was through the same strong light from the torch which was beamed at PWl which enabled her to identify both accused while inside her room on the fateful night. It was also the evidence of the victim (PWl) that, she recognized the 1st accused person by his voice when the 1st accused uttered the words ''mnamchezea huyo." Unfortunately, in the course of leading her in testimony, the prosecution did not bother to prompt PWl into describing or demonstrating the kind of the voice she claims she heard the 1st accused making on the fateful night when uttering the command "mnamchezea huyo." I my considered view, if so prompted, PWl could have explained before this Court the way she heard the sound from the 1st accused when uttering those words. Considering that the voice of the 1st accused was not recorded anywhere, this Court finds it difficult for the witness to be said that she proved that it was the sound of the 1st accused and nobody else. I am aware of the warning given by the Court of Appeal of Tanzania concerning reliability of voice identification in its decision in the case of NUHU SELEMANI v. REPUBLIC [19B4] TLR 93 (CA} where the Court remarked that; "it is notorious that voice identification by itself is not very reliable." In so far Page 21 of 37 as the voice evidence is concerned, this Court finds that, the prosecution has not been able to prove beyond any reasonable doubt that the voice PW! she alleged heard on the material night was that of the 1st accused and not anybody else. On the issue whether the victim mentioned the names of the accused persons to any person at the earliest possible opportunity, PW3 Mpangalala had earlier on told this Court that, when the Police Officers approached the victim's home, they found the victim being carried by villagers on a stretcher and that upon asking her (PW!) who had attacked her, she mentioned Makambi Lukumbi and Salimin Igayo. However, when testifying PW1 upon being questioned whether she had been asked by the Police Officers about the persons who had attacked and injured her, PW1 responded that she cannot remember if she said anything because she was still unconscious at the time. This piece of evidence clearly contradicts what PW3, Mpangalala earlier told this Court that, when he (PW3) was heading to the home of the victim having been called on the phone and tasked to follow on the incident, when he got close he met some villagers who were carrying the victim on a stretcher and that although the victim was in a very critical condition, he (PW3) discovered that the victim could talk and thus after having asked her name. It was the testimony of PW3 that the victim told him (PW3) that her name was Sumai and that she had recognized those who injured her and mentioned their names as being Makambi Lukumbi and Salmin Igayo. The contradiction here between the testimony of PW! and PW3 is very obvious for whereas the victim (PW!) stated that she was still unconscious at the material time and could not remember saying anything, PW3 on his part is saying that, the victim Page 22 of 37 (PW3) who admittedly was in a critical condition, could however talk and that she even mentioned her name and the names of her attackers. It was the further testimony of PWl that, it was while she was at District Designated Hospital (DDH) Bunda on the 06/07/2013, that Police Officers came to visit her and that she gave her statement. In his testimony however, PW3, Mpangalala did not say anything concerning the alleged interview of the victim (PW1) by the Police Officers or about recording her (PW1) statement at the DDH-Bunda. In any case even if this Court was to believe for a moment that, there was such statement by the victim (PW1) which was recorded by the Police at DDH-Bunda as PW1 claims, that statement was never tendered in evidence by the prosecution at the trial, and therefore in my view it does not exist. This being the case, this Court has been left in the dark as to whether indeed the victim in her purported statement at DDH-Bunda mentioned the names of the 1st and 2nd accused persons as being persons who alleged attacked and injured her on the material night. In my considered view this particular piece of evidence was very crucial since it could have been taken at the point in time when the victim started regaining her consciousness. This Court has also been left wondering as to why no single villager among those who responded to the alarm raised by the victim of the attack and who were the first persons to arrive at the crime scene, and as PW3 stated they were the very ones who carried her on a stretcher to the hospital, was called by the prosecution to testify. In her testimony PW1 stated that when she raised alarm people responded and among them it was one Vincent Kija Magaka, the Chairman of Kunzugu Village (since deceased) and Daudi Mashauri and that she Page 23 of 37 told them that it was Makambi Lukumbi and Salmini Igayo who had attacked her. If any of these persons (considering that one is deceased) had been called by the prosecution to testify, he could explained before this Court the condition of the victim at the material time when she was being carried on the stretcher to the hospital and about whether indeed the victim ever mentioned Makambi Lukumbi and Salmini Igayo as being the persons who had attacked and injured PWl. Furthermore, I since PWl told this Court that she was attacked and injured while seated on her bed, such or any of such villagers if they had been called by the prosecution to testify they could have greatly assisted this Court in determining whether the victim was found seated or lying on her bed or was found lying elsewhere and whether she was capable of talking and understand what she was being asked and whether the victim mentioned to the villagers the names of her assailants. Emanating from the above given circumstances, it is highly doubtful if indeed the victim mentioned Makambi Lukumbi and Sal mini Igayo (the 1st and 2nd accused respectively) to the people who were at the crime scene or immediately after the commission of the offence as being the perpetrators of the crime. I am enthused in this respect with the decision of the Court of Appeal of Tanzania in its decision in the case of John Gilikola v. Republic, Criminal Appeal No. 31 of 1999, (CAT) at Mwanza (unreported) thus; "The ability of a witness to name a suspect at the earliest opportunity is an all important assurance of his reliability; in the same way as un-explained delay or complete Page 24 of 37 failure to do so. should put a prudent court to inquiry." ( the emphasis is of this Court). Similarly, the Court of Appeal of Tanzania in its decision in the case of Pascal Jacob Mushi v. Republic, Criminal Appeal No. 95 of 2012, CAT at Arusha (unreported) at page 7 found that "the complainant did not seize earliest possible opportunity to mention the name of the appellant when he at least testified as PW2', and quashed the decision of the trial Court on this very ground being among other grounds. Furthermore, I am also alive to the remarks the Court of Appeal of Tanzania made in its decision in the case of in Venance Nuba and Tegemeo Paul v. R, Criminal Appeal No. 425 of 2013 {unreported}, thus:- "... This Court has persistently held that failure on the part of the witness to name a known suspect at the earliest available and appropriate opportunity renders the evidence of that witness highly suspect and unreliable. " If as it has been portrayed before this Court by PW3 that, the victim was able to talk and even managed to mention Makambi Lukumbi and Salmini Igayo (the 1st and 2nd accused respectively) as being her attackers, it was expected that she (PWl) was also able to name the assailants before the villagers who were the first to respond to the raised alarm; particularly considering that the villagers were the very first persons to arrive at the crime scene and carried the victim on a stretcher to the hospital, but given that no such evidence is available, this equation in the crime remains unresolved. Consequently, it has created doubts on the prosecution case as to whether indeed the victim did mention the names of her attackers as it is being alleged. Page 25 of 37 . - As wisdom has it, in a crime of this nature, time is of the greatest essence. The time which is being referred to in this case is the time the victim alleges that she spent with her assailants, that is, the time it took between the assailants invading her house and slashing her with pangas on various parts of her body. According to PW1, it took only like a second (ilichukua kama lisekunde); meaning that it was a very short period of time. The time the victim alleged she spent with the assailants is a very important factor in considering the issue whether the victim properly identified her assailants at the crime scene. Equally a . short period of time may also affect the identification. The complainant is considered to have properly identified the assailants if she spent a long time with them. In the instant case, PW1 stated that, it was a very short period of time. And within such short period of time, immediately after entering the victim's room, the assailants put off the lantern "kibatari", PW1 had lit and put by her bedside, which according to PW1 it is the very first action the assailants took after entering the victim's room. On the issue of brief duration of the attack on the complainant by the two assailants, the remarks by the Court of Appeal of Tanzania in the case of Pascal Jacob Mushi v. Republic, Criminal Appeal No. 95 of 2012 (supra) become handy where the Court gave as one of the four reasons for the Court to think that there was misapprehension thus warranting a fresh re-evaluation of the evidence as being that; " .... First, is the very brief duration of the attack on the complainant by the four assailants, was not sufficient to allow positive identification of the appellant .. " In the instant case, it was the testimony of PW1 that there was a very short duration of the attack on the complainant by the assailants Page 26 of 37 and in light of the illuminating rendering of principle in the decision of the Court of Appeal in Pascal Jacob Mushi case cited herein above, this Court finds that, the short duration of the attack on the victim by the assailants was not sufficient to allow for positive identification by the victim of the two accused persons before this Court as being the attackers who injured PWl on the material night of 05/07/2013. The testimony PW3 where he stated that it is the wife of the 1st accused who came to open the door for the Police Officers having knocked at the door for about 30 minutes also casts some doubts on the prosecution case. In his testimony, DWl, the 1st accused herein, stated that, it was him who woke up and went to open the door for the Police Officers; which fact is supported by the testimony of his wife, DW2, who told this Court that it is her husband who went to open the door for the police officers. This being the case therefore it is unclear as to who opened the door for the Police Officers at the time of the arrest of the 1st accused at his home. However, considering the fact that this was at 2:00 pm at night could it possible within an African setting somewhere in Kunzugu Village within Bunda District in Mara Region for a woman, and in this case the 28 years old wife of the 1st accused, to go and open a door to strangers who later identified themselves as Police Officers, leaving while her husband asleep? If this was the case then the wife of the 1st accused must have had extraordinary courage to do so at the middle of the night, which under normal circumstances, and given the obtaining situation of some unknown persons knocking at the door, it was highly improbable than probable. It is highly probable that it is the 1st accused (DWl) who as per his own testimony, and that of his wife, (DW2), who went to open the door for the police officers, thus casting Page 27 of 37 doubts on the story by PW3 that it is the wife of the 1st accused (DW2) who opened the door for the police and that they found the 1st accused hiding underneath the bed, for reasons which PW3 was unable to explain before this Court. It was the testimony of PW3 that, immediately after the wife of the 1st accused opened the door for the Police Officers having knocked for about 30 minutes, PW3 on getting inside the house and having searched for the 1st accused in the first room without success, upon beaming with a torch in the second room, he saw the legs of the 1st accused protruding from underneath the bed, whereupon he ordered the 1st Accused to get out. PW3 testified further that when the 1st accused emerged from under the bed, he was bare chest with only a trouser on and that they put him under arrest. However, when prompted by this Court as to whether he (PW3) as the arresting Police Officer bothered to enquire from the 1st accused as to why he (1 st accused) was hiding under the bed at that hour of the night, PW3 responded that he did not, but it is the Village Chairman who had accompanied the Police Officers who enquired from the 1st accused as to why the 1st accused had not responded to the alarm raised earlier in the Village. It is still unclear why in the first place PW3 or the said Village Chairman for that matter never bothered to enquire from the 1st accused as for the reason for him hiding underneath his bed at that odd time of the night. In any event given that the 1st accused had refuted being involved in the attack and injury event on the victim, it was expected that PW3 as a seasoned investigating Police Officer would have wanted to know as to what prompted the 1st accused to hide under the bed, if indeed he ever did, at that hour of the night. In any event this Court has Page 28 of 37 been left wondering as to why it is the Village Chairman, in the first place, if ever he was present at the arresting incidence since PW3 never mentioned his name, would be the one enquiring from the 1st accused as to the reasons for the failure by the 1st accused to respond to the alarm raised, and not PW3 about the participation of the 1st accused in the alleged crime which PW3 was investigating. This being the case, therefore certainly doubts as to whether this case was properly investigated cannot be ruled out. On his part when PW3 was prompted as to why the PF3 did not contain the number of the Police Case File, PW3 responded that, since the matter was of great urgency, they thought that they had to deal with it first particularly given the bad condition of the victim and then later handle the other formalities. According to both PWl and PW2, the victim received treatment for about a month at DOH-Bunda and was discharged. As to why the police failed to fill in the number of the Police Case File in the PF3 after the victim had been admitted at the DDH- Bunda it cannot easily be explained. Strangely, the prosecution even prepared this instant case for trial without bothering to consider if the PF3 which was tendered in evidence at the trial bore the number of the Police Case File. Be it as it may, in his testimony PW3 did not give any satisfactory explanation as to why the number of the Police Case File was missing in the PF3. On the issue as to who gave the PF3 to PW2, according to PW3 that it was him (PW3) who gave the PF3 to the Medical Doctor (PW2) who filled it at the Bunda-DD Hospital. However when testifying, PW2, the Medical Doctor who PW3 claim that he (PW3) handed the PF3 to him (PW2), he stated that he (PW2) is the one who filled in the PF3 which Page 29 of 37 he was given by a person he (PW2) did not know, but possibly one of the relatives of the victim. PW3 stated further that he received a phone call on 05/07/2013 at 2:30 a.m. while at home that there was a patient at the Bunda-DOH who was in a very critical condition who needed an urgent attention of a medical doctor. According to PW2 upon arriving at the hospital that is when he came to learn that the patient was a lady who had been severely injured by a sharp object. PW2 stated further that he found the patient already admitted at the hospital whereupon he had been given a first aid by being given a drip. PW3 stated that he then took the patient to the laboratory for further treatment. PW2 stated further that, since he found the injured lady already admitted and given a drip he could not be in a position to tell who had brought the lady to the hospital. PW2 stated further that, he does not remember if he (PW2) met with the Police Officers who were investigating the crime. In these circumstances, on the testimony by PW3 that, he is the one who gave the PF3 to PW2 and on the testimony of PW2 that, he does not remember who gave him the PF3, it is not clear whether it is PW3 who gave the PF3 to the Medical Doctor (PW2) who filled it or somebody else, thus perhaps explaining why the PF3 does not contain the number of the Police Case File on it. The manner and the procedure for the arrest of the 2nd accused also cast serious doubts on the prosecution case. In his testimony, PW3 stated that, the 1st accused person was arrested on the 5 th of July, 2013 at around 2:00 hrs, at his home. According to PW3, he told the 1st accused that it was being believed that it is the 1st accused who had injured the victim, which allegation the 1st accused refuted. PW3 stated further that they then took the 1st accused and his son to the Bunda Page 30 of 37 Police Station for further interrogation but later they released his son. PW3 stated further that upon interrogating the 1st accused, he told PW3 that, he knew Salmin, (the 2nd accused in this case). PW3 stated further that following this tip, the Police then rushed to Ligamba "A" village in search of the 2nd accused person for they believed that is where he was residing. Curiously when the 2nd accused took the witness stand as DW3 he stated that he resides at Ligamba "B" Village and not Ligamba "A" Village as PW3 had stated. However, it is a fact on record that, the 2nd accused person was arrested on 26/08/2014 and taken to the Bunda Police Station. Curiously and rather strangely as from the date of event, that is, 05/07/2013, the same date in which the 1st accused was arrested and interrogated and alleged mentioned Salimin (the 2nd accused) to PW3 as being the offender, the Police Officers claim to have "rushed" to the house of the 2nd accused on the 26/08/2014, and arrested him, almost a year after the occurrence of the event and the alleged mentioning by the 1st accused to the police of the name of the 2nd accused. We are not told if there was any search which was conducted at the house of the 2nd accused when the police allege that they had "rushed" to having been tipped by the 1st accused. When PW3 was prompted as to why it took such a long time from the time they allege that the 1st accused mentioned the name of the 2nd accused to arrest the 2nd accused at his home, PW3 responded that, they believed that, the 2nd accused had ran away as per the information the Police received from Police Informers. In any event what the Police believed about the 2nd running away is not supported by any cogent evidence to warrant the consideration of this Court. Page 31 of 37 --\ On the evidence of the 2nd accused when testifying as DW3, as from 12/09/2013 he was in Police custody having been arrested in connection with the other criminal offences he is alleged to have committed, namely; Criminal case No.14 of 2013 (where he was being accused of killing one Sabina Kaswahili) and Criminal Case No. 15 of 2013 (where he was being accused of killing Naomi Bukea). DW3 stated further that on the 26/08/2014 he was removed from prison by a Police Removal Order and taken to the Bunda Police Station, where he was told that he was being accused of injuring the victim in this Case, Sumai d/o Galandi. On this evidence it is highly doubtful if indeed the 2nd accused was arrested at his home at Ligamba "A" on 26/08/2014 by the Police having rushed there after being tipped by the 1st accused. Whereas PW3 told this Court that the 2nd accused was arrested on 26/08/2014 at his home at Ligamba "A", DW3 (the 2nd accused) told this Court that he was arrested after being removed from remand prison and that he resides at Ligamba "B" and not Ligamba "A." Considering the fact that the 2nd accused person had been arraigned on two murder charges, which under the law they are unbailable, his testimony that he was removed from remand prison by Police Removal Order and placed in police custody on 26/08/2014 sounds more cogent and plausible than the contention by PW3 that the 2nd accused was arrested on 26/08/2014 at his home at Ligamba A, which again as per testimony of DW3 he resides at Ligamba "B." This being the case therefore the Police cannot claim to have gone to arrest someone who was already in their custody. The claim by PW3 that the police had been informed by their Police Informers that they believed that the 2nd accused had ran away and that the Police were looking for Page 32 of 37 him flies in the face of the uncontroverted testimony by DW3 that at the time the police claim that they were searching for him, the 2nd accused was already safely in police hands and therefore the search for him was in a search in futility. As for the reason for the Police to remove the 2nd accused from remand custody and connect him with this case, DW3 told this Court that, on 05/07/2013 and all days before 12/09/2013 he was at his home at Ligamba "B" Village. This testimony is plausible and since as per the testimony of PW3, the Police Officers acting on Information by their Police Informers they went looking for the 2nd Accused person at Ligamba "A" Village, while according to DW3 testimony, he was living and residing at Ligamba "B" Village, clearly the Police if ever they went searching for the 2nd accused in Ligamba "A" it was also a futile exercise. If this is the information the Police claim that they were working on having been tipped by their Informers, it is no wonder as per the testimony of PW3 that the Police believed that, the 2nd accused had ran away, while in actual fact he was in custody. It would seem that the Police Officers were busy looking for the 2nd accused in a wrong village which was not where the 2nd accused was residing. This being the case therefore there is greater possibility that for the whole period before 12/09/2013, the 2nd accused person was at his home at Ligamba "B" Village. In the premise, this Court finds once again that, the prosecution case was not thoroughly investigated. On the testimony by PW3 that, the Police searched the home of the 1st accused but could not get any weapon in connection with the charged crime, I have given some serious thoughts on the testimony by PW3 that he did not explain to this Court if he had followed the search procedure and whether he had prepared any search report. This Page 33 of 37 \ therefore casts doubts if indeed there was any search which was conducted by the Police Officers at the home of the 1st accused. This Court having carefully considered the entire evidence on record, Court finds that, there are a number of inconsistencies in the evidence which cast serious doubts on the prosecution case. This Court also finds further that, the instant case was not properly and thoroughly investigated, since as I have pointed out above in this Judgment, there are certain critical issues which were not clearly investigated and some which were not investigated at all. In the course of my summing up the evidence of the prosecution and the defence to the Ladies and Gentleman Court Assessors who sat with me on this trial, in their respective opinions, two of the assessors returned a verdict of "Guilty" against the two accused person and one returned a verdict of "Not Guilty" against both accused persons. I very much respect their opinions, which I have considered in this Judgment, but the law states clearly that such opinions are not binding on me. As for the two Court Assessors who in their respective opinions returned a verdict of "Guilty" against the two accused persons, I have in the course of my Judgment explained the reasons for reaching the conclusions as I did which go contrary to their opinions and their verdict. As for the one Court Assessor, M/s Veronica Zaphrine, who returned in her opinion returned a verdict of "Not Guilty" against the two accused persons, essentially the reasons I have expounded in detail in this Judgment are in consonance with the verdict she arrived at that in this case the prosecution has not been able to establish its case against the accused persons beyond any reasonable doubts, which doubts are to be resolved in favour of the two accused persons. Page 34 of 37 I have also endeavoured to elaborate at great length in this , i- Judgment what the contradictions in the evidence by the prosecutio_n ' - were which have made the prosecution fail to establish its case against L the two accused persons to the required standard in a criminal trial of l I ' pro.of beyond any reasonable doubt. In the instant case, I have therefore, with due respected differed with the opinions of and the verdict by the two Court Assessors, Mr. Maira Maira and M/s Derifa Michael respectively, on among other grounds, on matters of law as I have endeavoured to explain in detail in this Judgment. As a matter of general principle under section 298(2) of the Criminal Procedure Act [Cap. 20 R.E 2002], in giving judgment a Judge "shall not be bound to conform to the opinions of the assessors' but where the Judge differs with their opinions, the Judge has to assign reasons thereof, as I have done in this Judgment. Considering that in the instant case the majority of the Court Assessors have expressed their opinions to the effect that the two accused persons in this case are "Guilty" of the offence as charged, as I have explained in this Judgment, I am not bound to conform to their opinions and for the reasons which I have given herein above. It is for the above reasons that, this Court finds the two accused persons in this case, MAKAMBI S/0 LUKUMBI @ NGUSA and SALIMIN S/0 IGAYO @ SEWA KISUMO, the 1st and 2nd accused respectively, "Not Guilty" of the offence of attempted murder contrary to section 211(a) of the Penal Code [Cap.16 R.E 2002] for which they were jointly and together charged. The 1st accused, MAKAMBI S/0 LUKUMBI@ NGUSA and the 2nd accused SALIMIN S/0 IGAYO @ SEWA KISUMO are hereby Page 35 of 37 " .. •..: discharged from the offence of attempted murder they were jointly and together charged. The 1st accused, MAKAMBI S/O LUKUMBI@ NGUSA and the 2nd accused SALIMIN S/O IGAYO @ SEWA KISUMO are hereby released from prison custody where they are being held and shall be set free forthwith unless they are being held there for some other lawful matters. It is so ordered. SGD: R.V. MAKARAMBA JUDGE 25/05/2017 Date: 25/05/2017 Coram: Hon. R.V. Makaramba, J. Ms. Ndunguru: State Attorney for the Republic - Present Mr. Adam, Advocate: Counsel for the Accused - Present Accused name: 1. Makambi s/o Lukumbi @ Ngusa 2. Salimin s/o Igayo @ Sewa Kisumo B/C: L. Mtaki Court Assessors: 1. Veronica Zephrine - Absent 2. Maira Maira - Present 3. Derifa Michael - Present Page 36 of 37 -~( ., Ms. Ndunguru: My Lord, the case is coming for Judgment and we are ready to receive it. Mr. Adam: We are ready my Lord. Court: Judgment delivered. Order: 1. The two Court Assessors present are thanked and discharged. 2. Right of Appeal fully explained R.V. MAKARAMBA JUDGE Page 37 of 37