CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI f CO RAM: NDIKA, 3.A., GALEBA, J.A.v And MGONYA. 3.A.) CRIMINAL APPEAL NO. 448 OF 2020 JULIANA JOHN K IM A R O ..... ............ ............................... FIRST APPELLANT FORTUNATUS PATRICK KISOKA .................. SECOND APPELLANT CLEMENCIA FORTUNATUS KISOKA................................................................ .. THIRD A VERSUS THE REPUBLIC ............. ......................................................... . RESPONDENT (Appeal from the Judgment of the Resident Magistrate's Court of Moshi at Moshi) (Mazenao. PRM - Ext. Jurist dated the 11th day of September, 2020 in Ext. Juris. Criminal Sessions Case No. 46 of 2019 JUDGMENT OF THE COURT 27th May & 6 lh June, 2024 NDIKA, J.A.: Juliana John Kirnaro, Fortunatus Patrick Kisoka and Clemencia Fortunatus Kisoka ("the first, second and third appellants" respectively) were convicted of murder and sentenced to death by the Resident Magistrate's Court of Moshi at Moshi (Hon. Mazengo - PRM - Ext. Juris.). They now appeal against the conviction. At the trial, the prosecution alleged that the appellants, together with John Raphael Kimaro alias Lelo Kicheweli who is not a party to this appeal as he was acquitted, murdered Lukresia Bernard Mwacha ("the deceased") on 19th March, 2016 at Kibosho Kirima area within Moshi District in Kilimanjaro Region. To prove its case, the prosecution mainly relied upon two strands of evidence. First, the prosecution produced PW1 Fausta Bernard Mwacha and PW6 Boniface Bernard Mwacha, the deceased's mother and younger brother respectively, to testify on how the horrific incident occurred. Second, a statement made by the deceased to a police investigator was tendered in evidence concerning the circumstances in which she was attacked leading to her death. Briefly, PW1 recalled that shortly after a religious get-together on 19th March, 2016 around 20:00 hours held at a neighbour's home, the deceased left for home at Ngurunyi street in Kibosho Kirima Kati. She had picked some chairs which she was to return to her father's pub on the way. A few moments later, PW1 heard an alarm and ran towards its direction, which was close to her husband's pub. On reaching that point, she was terrified to find the deceased lying injured on the ground, encircled by several people who included the appellants and the said John Raphael Kimaro. Since the scene of the crime was brightly illuminated by electric bulbs from the pub, she saw and recognised the appellants with whom she was familiar. She claimed that while the first appellant punched and kicked the deceased, the second appellant hit her with an electric wire and the third appellant used a stick to hit her mostly on the head. The said John Raphael Kimaro was just standing by watching the beating. PW1 testified further that she confronted the appellants, demanding to know why they were assaulting her daughter. The second appellant retorted thrice in Kiswahili, "Mama nimekuheshimu sana, nilitaka nirna/ize kazi iakini nimekuheshimu'f meaning that "it is out o f respect to you that I have stopped the beating her up, but I wanted to kiii her on the spot" On the part of PW5, he adduced that he arrived at the scene of incident a little later and found her elder sister lying on the ground severely injured. He saw the second and third appellants - the former wielding an electric wire and the latter a club - standing by. The first appellant as well as the said John Raphael Kimaro were also present but had no weapons. The deceased was taken to Moshi Central Police Station where a formal complaint was lodged against the appellants and John Raphael Kimaro. On the same day, she was attended at Mawenzi Hospital as an outpatient. As her condition deteriorated after a few days, she was taken to a medical facility in Kibosho before she was ultimately admitted at the Kilimanjaro Christian Medical Centre (the KCMC) on 11th April, 2016. She had a surgical operation on her head on 14th April, 2016, but she succumbed three days later in the hospital's, intensive care unit Police Officer No. G.2308 Police Constable Ramadhani Said (PW3) told the trial court that he interviewed the deceased on 20th March, 2016 on the incident. He tendered in evidence a statement he attributed to her (exhibit P2) in which she named the appellants among her assailants. It should be noted that the statement was received as a dying declaration in terms of section 34 (a) of the Evidence Act, Cap. 6 ("the Evidence Act"). Dr. Alex Mremi (PW2), a pathologist at the KCMC, examined the deceased's body on 18th April, 2016. He certified in the autopsy report (exhibit PI) that the death was due to severe traumatic brain injury. He also observed: 4 "the presence o fstitched incision on the right side o f the head. The right lobe was severely contused, with marked oedema. Presence of intracranial haemorrhage was also a feature. " PW4 No. E.1142 Detective Sergeant Hamisi recalled having interrogated the appellants over the incident. It is noteworthy that he said that the appellants were initially booked for assault on the deceased, but the charge was subsequently escalated into murder following the demise of the deceased on 17th April, 2016. In their sworn testimonies, the appellants denied the accusation against them. For her part, the first appellant averred that around 20:00 hours in the fateful evening she rushed from her bar to the scene of the crime in response to an alarm. At the scene, she found a gang of youths bewailing that the deceased was abusing people. The place was noisy and chaotic. A little later, the deceased and her mother (PW1) walked away. Her arrest by the police on the following day came as a shock. The second appellant recounted that he walked to the scene of the crime that fateful evening from his home to find out what the matter was as there seemed to be some mayhem there. At the scene, he learnt that the deceased had skirmished with a gang of youths. He admitted that PW5 saw him at the scene. However, he blamed his tribulations on grudges between himself and the deceased's family, following his breaking up with the deceased to marry the third appellant. For her part, the third appellant raised an aiibifor which she had duly lodged a notice in accordance with section 194 (4) of the Criminal Procedure Act, Cap. 20 ("the CPA"). She claimed that at the material time, she was bartending at her father-in-law's pub located at KNCll building in Moshi. She worked until 20:45 hours when she started her journey back home, arriving there at 21:30 hours well beyond the timeline in which the incident in issue supposedly occurred. In convicting the appellants of murder, the learned trial Magistrate parted company with the two assessors she sat with who returned a unanimous verdict of not guilty. In her judgment, she made the following key findings: first, that, acting on the testimony of PW1 and the medical evidence, she found it proven that the deceased died a violent death; that the death was due to severe traumatic brain injury. Secondly, relying on the testimonies of PW1 and PW5, the learned Magistrate held that the appellants 6 were impeccably recognised at the scene as the deceased's assailants. Thirdly, the trial Magistrate accepted exhibit P2 as a dying declaration, which, even though it required corroboration, established the circumstances in which the deceased received the fatal blows from the appellants. Fourthly, the learned Magistrate was alive that in terms of section 203 (a) of the Penal Code, Cap. 16 ("the Penal Code") a person is deemed to have caused the death of another person even though his act is not the immediate or sole cause of death if he inflicts bodily injury on another person in consequence of which that other person undergoes surgical or medical treatment which cause death as long as the treatment was employed in good faith and with common knowledge and skill. In addition, she referred to section 205 of the Penal Code under which a person is deemed to have killed another person if the death of that person occurs within a year of the cause of death. On these provisions, the learned Magistrate linked the blows the deceased received on 19th March, 2016 to her death, which occurred a month later, as she discounted the surgical operation that she underwent on 14th April, 2016 as the cause of the death. In particular, she reasoned and stressed that the operation was conducted in good faith by the medics. Finally, the learned Magistrate considered the appellants' defences but rejected them. Ultimately, she found it established that the appellants killed the deceased in concert with malice aforethought and convicted them accordingly. Mr, Martin H. Kilasara, Ms. Hellen M. Mahuna and Ms. Lilian 1 Mushemba, learned advocates, stood on dock brief for the first, second and third appellants respectively. They have impeached the convictions on five grounds, having abandoned fourteen other grounds originally lodged by the appellants in two memoranda of appeal. For the sake of clarity, we have rephrased the said grounds. In essence, it is contended that the trial court erred in law and fact by: 1. convicting the appellants based on a defective charge which was also at variance with the evidence. 2. conducting the proceedings in contravention o f the law. 3. failing to scrutinize and evaluate the entire prosecution evidence, which was contradictory, incredible, insufficient and unreliable rendering the charge against the appellants unproven beyond a reasonabie doubt 4. failing to consider the appellants'defences. 5. holding that exhibit P2 was a dying declaration. 8 For the respondent, Ms. Verdiana Mlenza, learned Senior State Attorney, appearing along with Mses. Agatha Pima and Juiieth Komba, learned State Attorneys, keenly opposed the appeal. Arguing the appeal on behalf of all the appellants, Mr. Kilasara began by abandoning the first ground of appeal. He then moved on to the second complaint, contending that the trial proceedings were irregular. It was his argument that P. Mazengo, PRM - Ext. Juris, erroneously took over the trial from F.H. Mahimbali, SRM - Ext. Juris, (as he then was) who had been assigned to preside over the matter in accordance with section 256A (1) of the CPA as shown at page 43 of the record of appeal. Relying on our recent decision in Geradi John Mamkwe v. Republic, Criminal Appeal No. 444 of 2020 [2024] TZCA 228 [22nd March, 2024; TanzLII], he urged us to nullify the trial proceedings on the ground that the transfer of the case to P. Mazengo, PRM - Ext. Juris, was irregular, hence she had no jurisdiction to preside over the matter. It is correct that the case was initially transferred to F.H. Mahimbali, SRM - Ext. Juris, (as he then was) for the taking of the plea and trial in terms of section 256A (1) of the CPA, which stipulates that: "256A.-(1) The High Court may direct that the taking o f a piea and the triai o f an accused person committed for trial by the High court, be transferred to, and be conducted by a resident magistrate upon whom extendedjurisdiction has been granted under subsection (1) o f section 173"," It is on record that F.H. Mahimbali, SRM - Ext. Juris, (as he then was) took the accused's pleas on 26th August, 2018 and conducted a preliminary hearing. He then adjourned the case to a date to be fixed by the Deputy Registrar and communicated to the parties. However, when the case came up for trial on 27th July, 2020, P. Mazengo, PRM - Ext. Juris, became the presiding Magistrate. It is settled that the said successor magistrate could only take over if an order of reassignment had been made by the High Court in accordance with section 256A (1) of the CPA. In rebuttal, Ms. Mlenza rightly submitted that the High Court (Mutungi, J.) duly issued an order dated 8th July, 2020 reassigning the case to P. Mazengo, PRM - Ext. Juris. Even though Mr. Kilasara saw on record the order alluded to by his learned friend, he rather astoundingly remained unyielding, quibbling that the said order was invalid for non-citation of the enabling provisions under 10 which it was made. With respect, having seen the reassignment order on record, we are satisfied that, in terms of its form and content, it validiy transferred the case to P. Mazengo, PRM - Ext. Juris, for her to preside over the trial. We certainly do not find any merit in the second ground of appeal. We find it logical, at this point, to interrogate the fifth complaint questioning whether exhibit P2 was a dying declaration. On this aspect, Mr. Kilasara attacked the statement mainly on the ground that it did not comply with the provisions of section 10 (3) of the CPA for the omission to state whether it was shown or read over to the deceased before she purportedly signed it. Mr. Kilasara also assailed the statement on the reason that it materially contradicted the testimonies of PW1 and PW5 as well as the contents of exhibit PI. Accordingly, citing Godson Hemedi v. Republic [2006] T.LR. 367 and Onael Dauson Macha v. Republic, Criminal Appeal No. 214 of 2007 (unreported), he urged us to find the statement invalid, uncorroborated and unreliable. Replying, Ms. MIenza submitted that the statement was rightly admitted as a dying declaration under section 34 (a) of the Evidence Act. She said that the omission to indicate in the statement that it was read over to the deceased was not fatai. As regards the claim that the statement contradicted the contents of exhibit PI as well as the testimonies of PW1 and PW5, she argued that the alleged contradictions were trivial and inconsequential. Section 34 (a) of the Evidence Act under which exhibit P2 was admitted provides for admission of a dying declaration thus: "34. Statements, written, electronic or oral, o f relevant facts made by a person who is dead or unknown, or who cannot be found, or who cannot be summoned owing to his entitlement to diplomatic immunity, privilege or other sim ilar reason, or who can be summoned but refuses voluntarily to appear before the court as a witness, or who has become incapable o f giving evidence, or whose attendance cannot be procured without an amount o f delay or expense which in the circumstances o f the case appears to the court to be Unreasonable, are themselves admissible in the following cases— (a) when the statement is made by a person as to the cause of his death as to any of the circumstances o f the transaction 12 which resulted in his death, in cases in which the cause of that person's death comes into question, whether the person who made them was or was not, at the time when they were made under expectation of death, and whatever may be the nature o f the proceeding in which the cause o f his death comes into question; " [Emphasis added] At first, we wish to remark that a dying declaration admissible under the above provision is a statement made by a deceased person as to the cause of his death in cases in which the cause of that person's death comes into question. As we observed in Onael Dauson Macha {supra), such a statement is admissible in Tanzania, as it is in India but uniike in England, whether it was made by that person under expectation of death or not - see also Damian Ferdinand Kiula & Another v. Republic [1992] T.L.R. 16; and Temtoo Hussein v. Republic, Criminal Appeal No. 430 of 2013 (unreported). As stated earlier, exhibit P2 unveils what the deceased supposedly said during her interview by the police investigator (PW3) on 20th March, 2016, conducted in terms of section 10 (3) of the CPA. It is settled that apart from 13 section 10 (3), (3A)> (3B) and (3C) requiring the police officer to, among others, make a declaration as to the accuracy and authenticity of the statement, the said police officer is also enjoined to show or read over the statement to the witness and have him append his signature to the statement. While in the instant case we agree with Mr. Kiiasara that nowhere in exhibit P2 does it state that it was shown or read over to the deceased, we uphold Ms. Mlenza's submission that the omission was not fatal given that PW3 stated, as shown at page 73 of the record of appeal, that: "I read the statement to the complainant, and she understood and signed [it], I also verified to have taken the statem ent" It is significant that none of the defence advocates at the trial cross- examined PW3 on that aspect. As we are satisfied that exhibit P2 complied substantially with the letter and spirit of section 10 (3) of the CPA, we find no merit in the grievance that exhibit P2 was not a valid dying declaration. So far as the cogency and reliability of that statement is concerned, we propose to deal with it while dealing with the third ground of appeal, which come next. 14 We 'indicated earlier that the crux of the third ground of appeal is the contention that the trial court failed to evaluate the evidence on record and that the charge against the appellants was not proven beyond a reasonable doubt. Mr. Kiiasara made extensive submissions on the third ground, but, in our view, three of the issues he raised deserve our consideration and determination. First, having reviewed exhibit P2 and the testimonies of PW1 and PW5 on what occurred at the scene of the killing, he contended that the said evidence was materially inconsistent. He elaborated that while PW1 and PW5 stated that the deceased was assaulted by four persons who included the three appellants, the deceased stated, as shown in exhibit P2, that her assailants were "many people." Secondly, the learned counsel questioned why PW1 had to go to her home that fateful evening to fetch a flashlight to aid her search of the crime scene to retrieve the deceased's headwrap and slippers that she lost during the attack if at all the crime scene was well illuminated. This, he said, raised question marks over the claim that the appellants were seen and recognized at the scene with the aid of bright electric lighting. Taking this argument further, he claimed that overall, the visual identification evidence was not watertight especially because the two identifying witnesses did not give any description of the assailants, which was contrary to what was stated in Sabasaba Enos Joseph v. Republic, Criminal Appeal No. 296 of 2022 [2023] TZCA 17442 [21st July, 2023; TanzLII]. Thirdly, he argued that the evidence by PW1 and PW5 that the deceased died on 17th April, 2016 conflicts with that of the pathologist (PW2) and exhibit PI dated 18th April, 2016 that the death occurred three days earlier, meaning 15th April, 2016. Further reference was made to Godfrey Lusian Shirima v. Republic, Criminal Appeal No. 40 of 2021 [2022] TZCA 584 [29th September, 2022; TanzLII]; and Pascal Mwinuka v, Republic, Criminal Appeal No. 258 of 2019 [2021] TZCA 174 [5tfTMay, 2021; TanzLII] to bolster his submission. For her part, Ms. MIenza disagreed with her learned friend. She was resolute that apart from the discrepancies between the testimonies of PW1 and PW5 having arisen from the fact that each witness arrived at the scene at different times, the said inconsistencies did not go to the root of the matter. She took the same position regarding the apparent inconsistency on when the deceased passed away. As to why PW1 needed a flashlight if the scene was well well-lit, Ms. Mlenza referred us to page 61 of the record of appeal depicting PWl's response on that aspect in cross-examination. PW1, she said, needed a torch to locate the deceased's possessions that had been thrown away. In addition, the learned State Counsel was ardent that the evidence by the first and second appellants confirmed that the lighting at the scene was conducive for a positive identification as it enabled them to see and recognize the deceased as well as PW1 and PW5. She argued that Sabasaba Enos Joseph {supra) relied upon by Mr. Kilasara concerned an incomparable scenario involving identification of strangers at a crime site, which was not the setting in the instant matter. In our view, the sticking issue for our determination, in the light of the contending submissions of the (earned counsel, centres on the cogency and reliability of the visual evidence and the dying declaration. Ahead of tackling the above issue, we find it apt to observe that contradictions by any witness or among witnesses cannot be avoided in any case: see, for example, Dickson Elia Nsamba Shapwata and Another v. Republic, Criminal Appeal No. 92 of 2007 [2008] TZCA 17 [30th May, 17 2008; TanzLII]. In that case, this Court stated that invariably in ail trials, normal contradictions and discrepancies occur in the testimonies of the witnesses due to normal errors of observation, or errors in memory arising from lapse of time or due to mental disposition. On that basis, minor contradictions or discrepancies which do not affect the case for the prosecution, cannot form basis upon which the evidence can be discounted, or the credibility of a party's case dented - see also John Gilikola v. Republic, Criminal Appeal No. 31 of 1999 [2004] TZCA 13 [14th July, 2004; TanzLII]. Guided by the foregoing standpoint, we have scrupulously reviewed the evidence on record haying in mind the contending arguments of the learned counsel. Beginning with the inconsistency on whether the deceased died on 17th April, 2016 (as per the testimonies of PW1 and PW5) or on 18th April, 2016 as testified by PW2, this matter is plainly trivial. PW2 stated that his evidence on that aspect approximated the time of the death; he did not pretend to be giving the actual time. At any rate, this incongruity does not deflect from the fact that the deceased passed away. 18 Furthermore, as regards the conflict between the dying declaration, on the one hand, and the testimonies of the two identifying witnesses as to the number of assailants, on the other, we uphold Ms. Mlenza submission that both PW1 and PW5 arrived at the scene at different times, meaning that their versions would not match the deceased's statement in every detail. Nonetheless, what is significant, in our view, is that the appellants were specifically named as the perpetrators of the crime by the deceased in her statement and PW1 in her evidence. Besides, PW5's testimony that he found the appellants at the scene - the second and third appellants armed with a wire and a club/stick respectively - when the attack had stopped, fits neatly with PWi's evidence and supports the dying declaration. We also agree with the learned State Counsel that PW1 fully justified in cross-examination why she had to fetch a torch to aid her effort to retrieve her departed daughter's possessions tossed away from the scene. The torch tale, therefore, does not suggest that the crime scene was not well-lit. Moreover, given that the first and second appellants admitted having seen and recognized the deceased, PW1 and PW5 at the scene of the crime, we think that visual identification was predominantly a non-issue. In addition, Ms. Mlenza is right, with respect, that Mr. Kilasara's reliance on Sabasafaa Enos Joseph {supra) that, the identifying witnesses did not give any description of the assailants, is clearly misplaced. That principle does not apply to a setting involving recognition by witnesses of acquainted suspects. Based on the foregoing discussion, we are settled in our mind that the alleged inconsistencies did not affect the cogency and reliability of the visual identification evidence and the dying declaration. Accordingly, the third ground of appeal fails. Turning to the fourth ground of appeal, Mr. Kilasara initially contended that the trial court did not consider the appellants' defences in its judgment. When we intervened and referred him to pages 183 and 184 of the record of appeal showing that the trial court dealt with the third appellant's alibi as well as the claim that the charge against the appellants arose from grudges with the deceased's family, he conceded that the defences were considered, but not satisfactorily so. We are respectfully of the view that this complaint was fully answered by Ms. Mlenza. We indicated earlier that while admitting being at the scene of the crime that fateful evening, the first and second appellants interposed the plea of general denial of liability. The trial court duly considered this 20 contention along with the alleged resentments between the deceased and her family, on the one hand, and the appellants (particularly the second appellant), on the other. In the first place, the defence of general denial, being self-serving, is inherently a very weak defence. In the instant case, it could not dent the prosecution evidence that the first and second appellants were recognized at the scene as the perpetrators. As regards the grudges, the trial Magistrate rightly held, at page 184 of the record of appeal, that the resentments would not have been a reason for the deceased's family fabricating a case against the appellants. To illustrate the point, we let the record speak for itself: "The defence is trying to say that due to the grudges the case is fabricated against the [accused persons]. My answer to this is in the negative. The evidence is clear; pointing [that] the accused inflicted injuries [on] the deceased which fed to her death, sometime later. As observed in this case, grudges, if any, with the deceased would have been a reason to attack the deceased." So far as the third appellant's aiibi is concerned, the trial Magistrate rightly held on the authority of Abdaliah Hamisi Salim @ Simba v. Republic, Criminal Appeal No. 68 of 2008 (unreported), that such defence dissipated upon her acceptance of the evidence that she was seen and recognized at the scene of the crime - see also Fadhili Gumbo Malota & 3 Others v. Republic, Criminal Appeal No. 52 of 2003 [2005] TZCA 44 [1st September, 2005; TanzLII}. Based on the foregoing, we hold that the trial court duly considered the appellants'defences and rightly rejected them. Consequently, we dismiss the fourth ground of appeal. In the final analysis, we share the trial court's finding, acting on the testimonies of PWl and PW5, that the appellants assaulted and injured the deceased on 19th March, 2016 leading to her death about a month later. Although the deceased's dying declaration by which she named the appellants as her assailants could not sustain the appellants' conviction on its own without corroboration, it is validated and confirmed by testimonies of the two witnesses. Given the circumstances in which the killing occurred and considering PWi's evidence that the second appellant declared at the scene that they wanted to finish off the deceased that fateful evening, we have no difficulty to uphold the trial court's finding that the deceased was killed in cold biood with malice aforethought. In the end, we find no merit in the appeal, which we hereby dismiss. DATED at MOSHI this 5th day of June, 2024. G. A. M. NDIKA JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Judgment delivered on this 6th day of June, 2024 in the presence of Mr. Martin H. Kilasara learned counsel for the 1st appellant also holding brief for Ms. Hellen M. Mahuna and Ms. Lilian Justus Mushumba, learned counsels for the 2nd and 3rd appellants and Ms. Julieth Komba learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original. A. S. qjUGULU DEPUTY REGISTRAR COURT OF APPEAL 23