CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: SEHEL. J.A.. FIKIRINI. J.A. And ISSA. J.A.^ CRIMINAL APPEAL NO. 683 OF 2020 MICHAEL OUMA W ILIAM ............................................................ APPELLANT VERSUS THE REPUBLIC.........................................................................RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma) (Kahvoza. J.) dated the 26th day of October, 2020 in Criminal Sessions No. 8 of 2020 JUDGMENT OF THE COURT 30th April, & 7th May, 2024. FIKIRINI, J.A.: Michael Ouma William, henceforth referred to as the appellant, is aggrieved by the judgment of the High Court delivered in Criminal Sessions Case No. 8 of 2020. He appealed to the Court, contesting the decision. Before the High Court, the appellant faced one count of murder, as per sections 196 and 197 of the Penal Code, Cap. 16 R.E. 2002. The prosecution alleged that on March 30, 2018, at Sakawa Village in the Rorya District of the Mara region, the appellant murdered Elvis Michael Ouma, a child aged one and a half (11/2) years. To provide context for the forthcoming decision in this appeal, a concise yet comprehensive background is essential. Through the testimony of four witnesses summoned by the prosecution and the admission of two exhibits, the following narrative emerged: that on the material day in question, Rehema Kadogo (PW1), the deceased's mother, went to Suya Otieno's residence to work on drying cassava for flour preparation. PW1 reluctantly entrusted her son (the deceased) to the appellant, since she claimed the appellant disliked the deceased. Aside from the deceased, the appellant was left with two other children, Junior Ouma and Ouko Ouma— belonging to the appellant from his previous marriage. Upon her return around 17:00 hours, she discovered a crowd gathered at their home. Upon inquiry, PW1 learnt from the appellant's mother that the deceased was found dead inside their house. PW1 raised an alarm and entered the house to find her clothes put in another suitcase, while the appellant's clothes and her suitcase were missing. PW1 proceeded to examine her son's body, which exhibited bleeding and signs of strangulation, with his neck showing unnatural mobility. She then sought assistance from Mkami Wambura Mirume (PW2), the local leader, who promptly responded to the scene. After verifying the situation, the local leader informed the police, who pledged to arrive the next day. 2 True to their word, the police, accompanied by Dr. Jabayi Donald Tumbo (PW4), arrived the following day. PW4 confirmed the death of the deceased after conducting an autopsy, producing a Post Mortem Report (exhibit PI), which concluded that the cause of death was strangulation resulting in a broken neck. Additionally, PW4 noted a cut wound on the right side of the deceased's head, measuring approximately 4cm in length, 2cm in width, and 3cm in depth. In addition to testimonies from PW1, PW2 and PW4 the court heard from Sebastian Otieno Opiyo (PW3), who recounted that the appellant contacted him twice via mobile phone seeking assistance after confessing to having murdered his son. Following the prosecution's case and after being, satisfied that a prima facie case had been established as per section 293 of the Criminal Procedure Act, Cap. 20 R.E. 2002 (now R.E. 2022) (the CPA), the court concluded that the appellant had a case to answer. In his defence, Michael Ouma William, led by Mr. Leonard Magweyega, learned advocate, testified as DW1, being the sole defence witness. He claimed that on the tragic day, he found the deceased had soiled himself with faeces. He admitted slap the child once on the right shoulder and proceeded to wash and placed him on a rock before leaving 3 momentarily to fetch his clothes, leaving the deceased unattended. On his coming back he found the deceased had fallen down from the rock. Upon examination, he found the deceased who he claimed was suffering from seizure attacks with bruises and had already died. Out of fear he left to inform his brother who lives in Kenya on the predicament. He also stated not to have intended to murder the deceased, disputing PWl's evidence that the appellant never loved her son, the situation which resulted in quarrel resolved by Suya Otieno. Satisfied that, despite there being no eye witness, there was circumstantial evidence to establish that the appellant with malice aforethought murdered the deceased. The prosecution had therefore proved its case beyond reasonable doubt and consequently found the appellant guilty, convicted and sentenced to death by hanging as prescribed in section 197 of the Penal Code. Aggrieved, the appellant had approached the Court with a total of seven grounds in the memorandum of appeal lodged on 30th April, 2021 and later raised two extra grounds in his supplementary memorandum of appeal lodged on 24th May, 2023. The grounds can be summarized as follows: one, that the circumstances of the chain of events did not irresistibly point to the appellant; two, that the conviction was based on suspicion which was not sufficient to ground conviction; three, that the prosecution failed to prove its case beyond reasonable doubt; four, that the appellant's defence was not considered; five, PW3 evidence was unreliable for failure to produce proof of the alleged mobile phone communication; six, that there was no evidence tendered to corroborate PWl's account that they were not in good terms; and seven, that there was alteration of what he said in court to implicate him with the offence he was charged with. In his supplementary memorandum of appeal the appellant had two grounds namely: one, that PWl's evidence was received in contravention of section 130 of the Tanzania Evidence Act, Cap. 6 [R.E. 2002 now R. E. 2022] (the TEA), therefore her evidence is unreliable and cannot be used to ground conviction, and two, that the trial court based its conviction on weak, uncorroborated and inconsistent evidence of PW1, PW2 and PW3. On 30th April, 2024 the appeal was called on for hearing. Present before the Court was the appellant and his advocate, Mr. Daud John Mahemba, learned advocate and Mr. Yese Temba learned State Attorney appeared for the respondent/Republic. The Court sessions commenced with Mr. Mahemba presenting his arguments. He condensed all seven grounds from the initial memorandum of appeal and the second ground from the supplementary memorandum of appeal into one key point, which can be summarized as follows: 1. The prosecution failed to establish the case beyond a reasonable doubtf as required by law. Additionally, from the supplementary memorandum of appeal, he addressed the first ground, which reads: 2. PW l's evidence was admitted in contravention o f section 130(3) o f the TEA, rendering it unreliable to support a conviction. Mr. Mahemba began his submission by adopting the written arguments filed by the appellant on 17th April, 2024, as part of his submission to the Court. He argued that there was insufficient evidence presented to the trial court to justify convicting the appellant of murder. He pointed out that the deceased was already dead when PW1 arrived home, and the accounts of PW2 and PW3 were merely what they were told, thus not substantially contributing to the prosecution's case. He also contested PW4's findings, noting a discrepancy in the dates of the autopsy and the reported date of death, suggesting that the Post Mortem Report might have been prepared before the autopsy. Initially, Mr. Mahemba sought to have exhibit PI expunged from the record, but upon the Court's 6 inquiry, he withdrew this request and instead urged the Court to disregard the evidence. Regarding the appellant's defence, Mr. Mahemba argued that the appellant admitted to unintentionally and accidentally committing the offence of murder. He urged the Court to consider this admission as the sole direct and credible evidence, emphasizing that only the appellant was present at the scene when the deceased died. Mr. Mahemba asserted that the trial court erred in convicting the appellant of murder instead of a lesser offence, of manslaughter. Probed by us on the trial Judge's remarks on the application of section 130 of the TEA, his response was the Judge ought to have made those remarks before PW1 commenced her testimony and not after, as by not complying to the requirement PW1 was prejudiced by being denied opportunity to know and permitted to exercise her right that she was exempted under section 130 (1) of the TEA to testify against her husband if she was not ready to do so. The learned counsel implored us to allow the appeal, quash the conviction, set aside the sentence and release the appellant from prison. 7 Mr. Temba, learned State Attorney, vehemently opposed the appeal and reaffirmed his support for the appellant's conviction and sentence. He commenced his arguments by addressing the second ground of appeal from the supplementary memorandum of appeal, first, concerning the applicability of section 130(1) of the TEA. Mr. Temba disputed the assertion that the trial Judge was obligated to comply with this provision before PW1 commenced her testimony. He maintained that PW1 fell under the exceptions provided in section 130(2) (b) of the TEA, thus the Judge appropriately resolved the issue. The learned State Attorney, urged the Court to dismiss this ground as lacking merit. Moving on to the first ground regarding the prosecution's failure to prove its case beyond a reasonable doubt, Mr. Temba acknowledged that none of the witnesses directly witnessed the incident. However, he argued that the prosecution relied on circumstantial evidence to establish that the appellant committed the offence. For instance, PW1 testified that the appellant was left alone with the deceased who subsequently fled the scene after the incident. The learned State Attorney, emphasized that while not all murders have eye witnesses, an unbroken chain of events can circumstantially prove the appellant's guilt. He cited the case of Didas Siria v. R,(Criminal Appeal No. 2 of 1979) [1979] TZCA 3 (22nd November, 1979; TANZLII), wherein the Court held that circumstantial evidence must lead to the inevitable conclusion that the appellant caused the death. The learned State Attorney, contended that PWl's testimony clearly implicated the appellant in the murder, as he was the last person left with the deceased. In response to Mr. Mahemba's submission regarding the request to ignore the Post Mortem Report, the learned State Attorney, argued that the report was not objected to during its tendering at the Preliminary Hearing stage. He further stated that there was no dispute regarding the unnatural death of the deceased. Therefore, he asserted that the Post Mortem Report's relevance cannot be disregarded, nor should the request to expunge it be granted. Should the Court agree with Mr. Mahemba's assertion to ignore the report, he invited reliance on PW3's oral evidence, which he argued was sufficient to establish the deceased's cause of death. Supporting his preposition, Mr. Temba cited the case of Mathias Bundala v. R (Criminal Appeal No. 62 of 2004) [2007] TZCA 16 (16th March, 2007;TANZLII). Considering that PW1 was a reliable and credible witness who testified that DW1 was the last person left with the deceased, her testimony and that of PW4 examined together, sufficiently established the 9 prosecution's case against the appellant. Regarding PW3's evidence, the learned State Attorney, noted its potential usefulness but highlighted its shortcomings, particularly the lack of evidence from mobile phone companies or certified print outs of alleged communications. He urged the Court to disregard PW3's evidence, citing the precedent set in Tabibu Nyundo & Ano. v. R,(Criminal Appeal No. 524 of 2021) [2023] TZCA 17310 (5th June, 2023; TANZLII), where the Court ruled that without such evidence, the mere statements cannot be relied upon. Disagreeing with the defence's claim that the murder was accidental and lacked malice aforethought, the learned State Attorney argued that credible evidence from PW1, PW4, and exhibit PI indicated otherwise. He emphasized that the injuries sustained by the deceased, as detailed in the Post Mortem Report, suggested malice aforethought. Additionally, Mr. Temba pointed out that the appellant's conduct after the incident was indicative of guilt, especially considering the deceased was a child for whom the appellant had a duty of care. Addressing issues raised in the appellant's written arguments, Mr. Temba contended that the trial Judge's disagreement with the defence case did not imply it was not considered. He also countered the assertion that PWl's evidence required corroboration, stating that it stood on its 10 own merit. Regarding the appellant's claim of being convicted on suspicion, the learned State Attorney clarified that the conviction was based on circumstantial evidence. Responding to the appellant's complaint about material witnesses not being summoned by the prosecution, such as the arresting police officer and the individual who drew the sketch map of the crime scene, Mr. Temba, argued that the prosecution called witnesses who could advance their case effectively. He reiterated that the prosecution had fulfilled its duty in presenting relevant witnesses. It was his stout stance that since there was no dispute on those two points, there was thus, no need of calling the two Police officers as witnesses. In considering the appeal before us, we must re-evaluate the entire evidence on record and arrive at our own conclusion, as stated in our previous decisions such as in D. R. Pandya v. R, [1957] E.A. 336, and The Director of Public Prosecutions v. Stephen Gerald Sipuka, (Criminal Appeal No. 373 of 2019) [2021] TZCA 330 (20th July, 2021; TANZLII) to list a few. We prefer to start with the two issues though part of the main ground of proof beyond reasonable doubt, but since they have been submitted on by the learned State Attorney, responding to the appellant's li filed written arguments, we think could be disposed off before going into the main ground. On the issue that the defence was not considered, at pages 59 -62, and particularly at page 62 of the record of appeal, the trial Judge, devoted enough time and thoroughly mulled over the defence case. The fact that he did not agree with his defence does not mean the defence was not considered. We, thus support the learned State Attorney's submission that the trial Judge pondered over the defence case. This ground is without merit. As to the grounds of appeal coined, starting with the second ground of appeal concerning the compellability of PW1 to appear as a prosecution witness, we find it apt to turn to the relevant provisions of the law. Section 130(1) of the TEA states that: "Where a person charged with an offense is the spouse o f another person, that other person shall be competent but not compellable as a witness on behalf o f the prosecution, subject to certain provisions" However, section 130(2)(b) provides an exception, stating that: "in any case where the person charged is charged in respect o f an act or omission affecting the 12 person or property o f the wife or husband, or any o f the wives o f a polygamous marriage o f that person or the children o f either or any o f them." Considering that the deceased was PWl's son and the appellant was charged with his murder, we interpret the provision to mean that PW1, as the mother, was affected by both the appellant's action of murdering her son and/or his omission to protect him. Consequently, the requirement for her to be made aware of her rights under section 130(3) of the TEA did not arise, because PW1 was covered by the exemption provided under section 130(2)(b) of the TEA. The trial Judge correctly overruled the concern raised as reflected on page 14 of the record of appeal. This ground is without merit and is dismissed. Our next endeavour is to answer the issue whether the prosecution had been able to prove its case beyond reasonable doubt as required in law. Before we do so, we think it shall be useful to address what entails proof of a criminal case based on circumstantial evidence. In our observation, SARKAR ON EVIDENCE, Fifteenth Edition, Reprint 2004 at pages 66 to 68, is the best place to get the guiding principles. There are about eight principles set out. One, in a case relying wholly on circumstantial evidence, the circumstances must support the exclusive 13 hypothesis that the accused is guilty of the crime. The circumstances relied upon must decisively establish the accused's involvement in the crime. Two, the court should examine the incompatibility with innocence, whereby all incriminating facts and circumstances must be incompatible with the innocence of the accused or the guilt of any other person. They should not be explainable upon any other hypothesis than that of the accused's guilt. If there is any reasonable doubt, the benefit should be given to the accused. Three, proof required is that beyond reasonable doubt, from which circumstances from which an adverse inference is drawn must be proved beyond reasonable doubt and must be closely connected with the fact sought to be inferred. Four, once there are two equally possible inferences, the inference favouring the accused should be accepted. Five, there must be a complete chain of evidence, leaving no reasonable ground for a conclusion consistent with the innocence of the accused. The chain of evidence must be such that it is highly probable that the accused committed the act. Six, there must be interdependent circumstances, which should be considered as one integrated whole, not separately. Seven, suspicion however strong, without more conclusive evidence are not sufficient to justify conviction, even if the accused offers no explanation. Eight; the combined effect of proved facts, if taken 14 together is conclusive in establishing guilt, conviction would be justified, even if any one or more of those facts by itself is not decisive. In examining the principles outlined in the context of the appeal before us, it is evident that there were no eyewitnesses summoned by the prosecution to directly implicate the appellant in the offence. However, crucially, the appellant himself admitted to being the sole eyewitness to the deceased's murder. In his defence, detailed on pages 26-27 of the record of appeal, the appellant provided his account of the events. According to the appellant's testimony, the sequence of events unfolded as follows: he discovered the deceased playing with his own faeces. He admitted slapping the child and subsequently giving him a bath. Afterward, he placed the child on a rock and left momentarily to retrieve clothes. Upon returning, he allegedly found the deceased who he alleged was suffering from seizures lying on the ground, with his neck and hand turned, indicating the child was already dead. Rather than seeking assistance or informing his nearby mother, the appellant chose to flee to Kenya, purportedly to inform his brother. The appellant's reaction did not exhibit innocence. We say so for the following reasons: one, instead of promptly assisting the deceased or seek help despite being the only grown up person around, raises suspicion. 15 In cases of accident as the one alleged by the appellant, one would typically expect him, regardless that he was a step-father, to prioritize the well-being of the child and seek assistance medically or otherwise promptly. The appellant behaviour did not exhibit that which appears inconsistent with innocence. Two, the severity of the slap administered to the child, considering his young age, suggests potential harm inflicted intentionally rather than accidentally. This raises doubts about the appellant's claim of accidental death. Three, the appellant's action of placing the deceased on the rock, followed by the subsequent allegation of a fall, raises significant questions regarding his foresight and accountability. We have been wondering, how could such a grown up and responsible person place a young child on a rock, especially if it was steep or posed any danger. It is crucial to examine the circumstances surrounding the alleged fall, including the height and condition of the rock, as well as any potential factors contributing to the fall. If the appellant's actions or negligence directly contributed to the child's fall and subsequent injuries, it would significantly impact the assessment of his culpability in this matter. Four, the appellant's decision to flee to Kenya, ostensibly to inform his brother, appears dubious. This action, rather than seeking assistance or informing 16 nearby relatives, raises suspicion regarding the appellant's intentions and suggests an attempt to evade accountability. While the appellant's explanation may initially appear plausible, a deeper analysis reveals inconsistencies and behaviours that are more indicative of guilt. These factors contribute to a conclusion that the appellant's actions align with the charge of murder with malice aforethought, as asserted by the prosecution. See: Didas Siria v. R (supra), and Ahamad Chali v. R [2006] T. L. R. 313. The findings presented are indeed reinforced by exhibit PI and the evidence provided by PW4 regarding the injuries sustained by the deceased. According to PW4's testimony, the autopsy revealed cut wounds on the head caused by a sharp object, as well as a broken neck resulting from strangulation and internal bleeding. These injuries are consistent with the prosecution's assertion of murder with malice aforethought. Despite the appellant's explanation of the events, including the claim of accidental death resulting from a fall after being placed on a rock, there is no credible evidence or plausible explanation presented to contradict PW4's autopsy findings and the Post Mortem Report. The severity and nature of the injuries sustained by the deceased suggest intentional harm rather than accidental circumstances. 17 Furthermore, the appellant's decision to abscond to Kenya following the incident is viewed suspiciously. Instead of seeking assistance or informing relevant authorities or his mother who was living nearby, he escaped which to us is indicative of guilt and an attempt to evade accountability for his actions. This supports the prosecution's assertion that the appellant committed the murder with malice aforethought. The evidence presented, including the autopsy findings and the appellant's actions following the incident, there is a strong case supporting the conclusion that the appellant intentionally caused the death of the deceased with malice aforethought. This assessment is consistent with the prosecution's argument and the overall circumstances surrounding the tragic event. The concern raised by Mr. Mahemba regarding the reliance on the Post Mortem Report due to the mix-up of dates deserves careful consideration. However, upon examination, we find ourselves in disagreement with the notion that the mixed-up dates necessarily imply that the report was prepared before the death occurred. Suchan interpretation would indeed be absurd and does not align with the facts of the case. Instead, it is reasonable to attribute the mix-up of dates to human error rather than any deliberate attempt to manipulatethe 18 evidence. Mistakes in documentation, including errors in recording dates, are not uncommon and can occur for various reasons. Therefore, while acknowledging Mr. Mahemba's concern, we do not find sufficient grounds to dismiss the Post Mortem Report or its findings based solely on the discrepancy in dates. As such, the Report remains a valid piece of evidence in the case and can be considered alongside other evidence in reaching a conclusion. See: Waisiko Ruchere @ Mwita v. R, (Criminal Appeal No. 348 of 2013) [2014] TZCA 153 (28th October, 2014; TANZLII). While the appellant may not have explicitly declared his intentions, the circumstances surrounding the incident and his subsequent actions suggest the presence of malice aforethought. Therefore, it is crucial to carefully consider all available evidence in determining the appellant's culpability in this matter. In the case of Enock Kipela v. R, (Criminal Appeal No. 150 of 1994) [1999] TZCA 7 (10th June, 1999; TANZLII), the Court pointed out possible indicators namely: The factors outlined, such as (i) the type and size of the weapon used, (ii) the amount of force applied, (iii) the specific injuries inflicted, (iv) the attacker's utterances and (v) behaviour before, during, and after the attack, to highlight a few, are crucial in determining the presence of malice aforethought. 19 In the present case, several indicators point towards the appellant's culpability: one, the amount of force used. Despite the appellant's claim of causing the deceased's death was unintentional, the severity of the injuries, particularly the broken neck indicating strangulation, suggests the use of significant force. Such force, especially on a young child of 11/2 years old, is likely to result in fatal consequences and the one who applied the force must have an ill motive. Two, the presence of bruises and cut wounds caused by a sharp object, as noted in the Post Mortem Report and PW4's evidence, further indicates intentional harm. The appellant's inability to provide a plausible explanation for these injuries, considering the child was under his custody at the time raises suspicion regarding his motives. Three, the appellant's conduct following the incident, particularly his absence from home as noted by PW1, is not consistent with innocence. See - James @ Shadrack Mkungilwa & Ano. v. R, (Criminal Appeal No. 214 of 2010) [2012] TZCA 38 (26th March, 2012; TANZLII); Jibril Okash Mohamed v. R, (Criminal Appeal No. 331 of 2017) [2021] TZCA 1 3 (llth February, 2021; TANZLII) and Eliya Kundaseni Shoo v. R, (Criminal Appeal No. 288 of 2015) [2016] TZCA 619 (21st July, 2016; TANZLII). In the later, case of Eliya Kundaseni Shoo, the appellant had escaped from the village after 20 the incident, until when he was arrested. Considering the conduct of the appellant the Court had this to say: "He fled from the village and was not seen until he was arrested far from his village some five days later. His unexplained flight in the circumstances o f this case was indicative o f his guilt. His flight amounted to suspicious conduct" [Emphasis added] This behaviour aligns with the notion of malice aforethought, indicating a deliberate intent to cause harm or death. We have come to this conclusion after pondering on the appellant's reaction. If at all the appellant's had no malice, then his first reaction would have been to seek assistance from his mother living nearby, the neighbours, local leaders, or rush the deceased to a nearby medical facility. The appellant opted for none of the suggested options. Considering the severity of the injuries, the lack of a plausible explanation for the injuries, and the appellant's conduct before and after the incident, are strong indications of malice aforethought. These factors collectively support the conclusion that the appellant acted with deliberate intent to cause harm or death, warranting further scrutiny and legal accountability. 21 We find no merit in the appeal and dismiss it entirely. The High Court conviction and sentence are upheld. DATED at MUSOMA this 6th day of May, 2024. B. M. A. SEHEL JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 7th day of May, 2024 in the presence of the appellant in person and Mr. Abdulkheri A. Sadiki, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. C. M. MAGESA M. MAGESA DEPUTY REGISTRAR COURT OF APPEAL 22