republic vsnelson mkini 2019 tzhc 2124 3 january 2019

IN THE HIGH COURT OF TANZANIA AT IRINGA ORIGINAL JURISDICTION (IRINGA REGISTRY) CRIMINAL SESSION CASE NO. 68 OF 2015 THE REPUBLIC VERSUS NELSON S/O MKINI JUDGMENT KENTE, J The accused person namely Nelson Mkini is charged with the murder of his father one Egid Mkini. He is alleged to have committed the charged offence on 18th August 2012 at Ng'uhure Village in Kilolo District Iringa Region. He pleaded not guilty to the charge. Going by the evidence on record, there is no dispute that Egid Mkini who was the accused's biological father is dead and that he died on 18th August 2012 at his home village of Ng'uhure in Kilolo District. This fact has been proved by the daughter of the deceased one Naja Egid Mkini who testified as PW1 and Roida Kivamba the deceased's daughter-in-law who is the accused's wife who testified as PW2. Both witnesses told the court that on 18th August 2012 they left the deceased in good health when they went to the home of the ten-cell leader to ask for his intervention in the dispute between the deceased and his two sons (the accused and one Cuthbert Mkini) but when they came back they found him already dead. Moreover, Doctor Christopher Mbata who testified as PW5 certified before this court and in his postmortem examination report (Exhibit P2) that indeed the said Egid Mkini is in fact dead. On the basis of this evidence, I take it with absolute certitude that Egid Mkini is dead. According to the Doctor who examined the body of the deceased, it had deep multiple cut wounds involving internal organs such as the liver, spleen, brain and esophagus. The said wounds led to severe bleedings which together with brain damage were, according to PW5, the causes of the deceased's death. Moreover, the question as to how the deceased met his death is not in dispute. PW5's report is clear and conclusive that following the above mentioned wounds, the deceased had sustained brain damage and severe bleeding which eventually caused his death. This finding brings me to another important finding that the deceased's death was not a natural one, and that whoever killed him had no legal justification to do so. In these circumstances, I hold that the deceased was intentionally and unlawfully killed. 2 The only issue in this case, as it is in most cases of homicide is whether the accused is the one who killed the deceased. On this question, it is common ground that there was no witness who saw the accused person either killing or otherwise inflicting wounds on the deceased which eventually resulted into his death. In these circumstances, the prosecution case is wholly dependent on circumstantial evidence. The law on circumstantial evidence is that before it can be relied upon to ground a conviction ".......the circumstantial evidence must lead to the inevitable conclusion that the death was the act or contrivance o f the accused. I f there is an alternative which can with reasonable probability account for the death, this excludes the certainty which is required to justify a verdict o f guilty", (see Samson Daniel V. Republic (1924) EACA 134). It is also the law of this land that, where as in this case, the prosecution case is wholly dependent on circumstantial evidence, the facts from which an inference of guilty is to be drawn must be proved beyond reasonable doubt. (See Ally Bakari & Another V. Republic [1992] TLR 3 ). 3 The question which follows therefore, on the strength of the above cited and quoted authorities, is whether in the present case, the circumstantial evidence led by the prosecution evidence had the required quality of irresistibly leading to establish the guilt of the accused beyond reasonable doubt. To answer this question, I now proceed to examine the said circumstantial evidence on which the prosecution case is founded. In the first place, it is not in dispute that the deceased and accused were respectively a father and son and that at the time which is contemporaneous with the deceased's brutal murder, the deceased's wife one Magreth Kidava who was also the accused's mother, was terminally sick. To be precise, due to the said illness, she died a few days after the killing of her husband. Moreover, there is no dispute that the accused had visited his parent's home on the day of the incident. However, while it is alleged by PW1 and PW2 who were respectively the accused's blood sister and wife that there was a very serious quarrel between the deceased on one hand and the accused and his brother on another hand as the accused and his young brother one Cuthbert allegedly sought to spend a night at their parent's home, a move which was however, resisted by the deceased, the accused in his defence told this court that he left his parents in peace after having seen them and offered them a financial help (Tshs. 200,000/=). He further asserted that, from there he left for Madibila Village in Mbeya Region where he stayed for two years and that he came to learn about his father's death when he returned home in the year 2014. He said that he was surprised to see the Police Officers arresting and charging him with the present offence. He also accused the Police for allegedly recording his cautioned statement in total disregard of the required procedure. All in all, he distanced himself from the brutal killing of his own father. As can be seen, there is a very serious dispute on the question as to whether or not the accused was at the scene of the crime up to the time or immediately before the deceased met his death. In this connection, we have the evidence of PW1 and PW2 who, together with other relatives were taking care of the accused's mother who would however, eventually succumb to death. Both PW1 and PW2 narrated quite vividly how the accused and his young brother went to see their ailing mother and wanted to remain there until the following day. Apparently, the deceased was strongly opposed to their move so he sought to report them to the Police. According to PW1 and PW2 that is when a quarrel erupted for which the (PW1 and PW2) had to seek the intervention of the local leader one Feruzi 5 Mkini (PW3) who was also the deceased's young brother. It is in evidence that when PW1 and PW2 returned home together with PW3 they found the deceased's lying outside on the ground, apparently immediately after he was murdered. It is on the basis of the evidence that the prosecution maintains that it is the accused together with his young brother one Cuthbert who, after PW1 and PW2 had left they, killed the deceased and thereafter they vanished. Now, to start with, it has been established and so indisputably that the accused went at the home of his deceased parents on the day of the incident. That was on 18th August 2012. It is as well not in dispute that on that day the accused left his home village Dabaga and he returned two years thereafter. What is in dispute is on the circumstances in which he left and if on the same day, before he left, he was involved in the killing of his father as alleged by the prosecution. I have paid due consideration to the evidence led by the prosecution side on one hand and on the other hand, the defence evidence adduced by the accused who was the solitary witness to his case. Notably, the accused had told this court that initially he left Madibila Village in Mbeya Region for his home village Dabaga in Iringa Region on 17th August 2012. He said that he was going to see his relatives and friends after he had been away from home for two consecutive years. He also said that on 18th August 2012 at about 8:00 pm he went to the home of his parents and informed them that he was going to leave. That he gave them Tshs. 200,000/= to cater for their needs. However, this evidence is diametrically opposed to the testimony of PW1 and PW2 who told the court that the accused and his young-brother were involved in bitter squabbles with the deceased and that when they (PW1 and PW2) came back from the home of the ten-cell leader where they had gone to seek assistance, the accused and his brother were nowhere to be seen. And as it turned out, the accused would not return home until after more than two years. The question then would be, was the accused the last person in the company of the deceased immediately before the deceased met his death as sought to be established by the prosecution. In this connection, I have paid due consideration to the evidence of PW1 and PW2. Notably, while it is said that, blood is thicker than water and, there is no evidence showing or suggesting that the two witnesses who were incidentally the accused's sister and wife respectively labored a grudge against him, they spoke with candour about his presence at the deceased's home immediately before the deceased was killed, the serious quarrel that ensued after the accused and his young brother had sought to spend a night at their parent's home against the deceased's will and finally the accused and his young brother's immediately and explained disappearance without a trace right away after the deceased's death. In the normal circumstances, and in the absence of evidence showing any relationship of bad-blood between the accused and his sister (PW1) and his own wife (PW2), one would have expected the two witnesses to support the accused in his defence version that indeed he just paid a visit to his parents and left them peacefully before the killing of the deceased. In other words, it would have been the same story that indeed the accused saw and gave financial assistance to his parents before he left for Madibila Village. However, it is even more strange to note that while the accused told the court that from his parent's home, he went back to Madibila Village in Mbeya Region where he had been for the last two years, his own wife (PW2) told the court that the accused told him that from 2012 to 2014 he was working somewhere in Morogoro Region with a view to raising school- fees for his child. PW2 also said that on the fateful day the accused had not told her as to where he would go thereafter. 8 For my part, I take the evidence of PW1 and PW2 as nothing but a narrative of the truth. For there is no reason whatsoever for me to suspect the two witnesses or any of them of perjuring against the accused in this case. Accordingly, I hold that the accused along with his young brother one Cuthbert Mkini who is still at large were at the deceased's home of and were together with the deceased with whom they were involved in a serious quarrel and confrontation immediately before the deceased met his violent death. Following on heels therefore is the crucial question as to whether the circumstantial evidence led by the prosecution irresistibly established beyond reasonable doubt that the accused is responsible for the killing of the deceased. There is an authority for the presumption and it is indeed a cherished principle of law that:- "an accused person will be presumed to be the killer, if he is alleged to have been the last person to be seen with the deceased, in the absence o f a plausible explanation to explain away the circumstances leading to death". 9 (See Mathayo Mwalimu & Another V/ Republic, Criminal Appeal No. 147 of 2008, Court of Appeal of Tanzania at Dodoma (unreported). The circumstances implicating the accused in this case are:- 1. That he was last seen with his deceased father when the deceased was still alive and before he met his violent death. 2. That before the deceased's death, he was involved in a serious squabble with the deceased. 3. That the accused vanished without a trace immediately after the deceased's death; and 4. That he made a confessional statement to PW4 admitting to have killed the deceased. Despite the accused's stiff resistance, for the reasons given before, I take it as an established fact beyond reasonable doubt that the accused was last seen with the deceased by PW1 and PW2 before they left to seek assistance from the ten-cell leader and that by that time the deceased was in a serious quarrel and confrontation with the accused and his young brother one Cuthbert Mkini. I also wish to add that indeed as amply demonstrated by PW1, PW2 and PW3, the accused disappeared without a 10 trace immediately after the killing of his father (the deceased). With regard to the gravely incriminating confessional statement (Exhibit PI) which the accused made to PW4 but sought to challenge at one time saying, during the trial that he did not make it and yet saying at some other time that he made it but that at the time of making it, he was not accorded some of his procedural rights as prescribed under the law, I would say with due respect, that those were nothing but mere afterthoughts. For the said statement was smoothly admitted into evidence without objection from the accused or his defence counsel. However, as it turned out, it was later on conveniently and belatedly challenged during the defence case after the accused and his defence counsel had made sure that the Police Officer (PW4) to whom it was made had left the witness-box. The most sensible view I hold in this case is that, the accused made a statement to PW4 in which he freely and unequivocally confessed to have unlawfully killed the deceased. In the circumstances, he cannot be heard today to seek to repudiate, retract or otherwise challenge his own confessional statement. The repudiation or restriction should have come immediately before the statement was admitted in evidence. 11 Having considered the circumstantial evidence that we have in this case, like the assessors who sat with me, I am satisfied beyond the shadow of doubt that the established facts provide over whelming evidence irresistibly leading to the conclusion that the accused was involved in the unlawful killing if the deceased, in cold blood. With regard to the question of malice aforethought, it will be noted that the accused together with his young brother were accusing the deceased of being a wizard. The accused himself is pungently clear in his confessional statement (Exhibit PI) that the deceased was practicing witchcraft to the extent of bewitching his own children including the accused himself. The accused had told PW4 that in 2011 they reported the deceased to the village leadership where the deceased allegedly went on making a vow to bewitch him and his mother. So it appears to me that the ailing of the deceased's mother came to add a wound onto another. It is the law of this country that, a belief in witchcraft however honestly held, cannot be a defence to a charge of murder (See Kajuna Mbake V. Republic [1945] 12 E.A.C.A 104). With great respect therefore, I agree with the assessors who sat with me and opined that the accused killed the deceased unlawfully and with malice aforethought. 12 For what I have said hereinabove, I am finally of the view that the charge of murder against the accused has been demonstrated beyond reasonable doubt. I accordingly find him guilty and convict him as charged. It is so ordered. DATED at IRINGA this 03rd day of January, 2019 JUDGE 13