JACOB LUCAS KALAJA 3 OTHERS

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA CRIMINAL SESSIONS CASE NO. 47 OF 2022 REPUBLIC VERSUS 1. JACOB LUCAS KALAJA 2. BONIPHACE NESTORY MARCO 3. DANIEL MARTINE MABUNESHO 4. HELENA MARTINE MABUNESHO JUDGMENT 28th August & 25th September 2024. Kilekamajenga, J. On the night of 15th November 2017, a group of thugs stormed the house of a Primary school teacher, Isack Brighton, leaving him in a pool of blood fighting for his last breath. Within the same night, Isack Brighton was declared dead. The incident of murder later began to unfold; the second accused’s wife who is also the fourth accused called his brother (the third accused) and handed him some items suspected to have been used in the murder. The third accused took such items and buried them within his compound. When the police went to search the third accused’s house, they found nothing until they were alerted by Leticia (the 1 third accused’s wife). They finally recovered one axe, two hammers, an iron bar and a broken machete. Furthermore, the police searched the first accused’s house and found an item with stains of blood believed to have been involved in the murder. Finally, the accused persons were arrested and charged with the murder of Isack Brighton under sections 196 and 197 of the Penal Code, Cap. 16 RE 2002. Upon arraignment, the information levelled against the accused person shows that on the 15th day of November 2017 at Nyamilama village within Kwimba District in Mwanza, the accused persons murdered Isack Brighton. When the case came for hearing, all the accused persons pleaded not guilty prompting a full trial. During the trial, the learned State Attorneys Ms. Dorcas Akyoo (SA), Messrs Fortunate Guvete, and George Ngemela appeared for the Republic. On the other hand, each accused was allocated an advocate for a fair trial. The first accused was represented by the learned advocate, Mr. Linus Amri; the second accused was represented by the learned advocate, Mr. Geofrey Reuben Kishosha; the third accused was represented by the learned advocate, Mr. Fidelis Mtewele; and the fourth accused enjoyed the legal services of the learned advocate, Mr. Machele Mkaruka. In proving the case, the prosecution summoned eleven (11) witnesses and tendered twelve exhibits. 2 During the trial, PW1, being the Medical Doctor examined the deceased’s body on 15th November 2017. The body had several wounds which were inflicted with a sharp object on the head. He concluded that the wounds caused excessive bleeding leading to death. After the examination, he filled in the postmortem examination report (exhibit P2). PW2 (Shitula Mathias Lugata) who is a resident of Nyamilama village, was doing charcoal business and was always transporting charcoal to Mwanza using his bicycle. On Wednesday 15th November 2017, he was phoned by his friends and agreed to leave the village at midnight for Mwanza. He therefore carried a rechargeable torch to light up on the way. He walked towards the village centre where he always parked his bicycle before the journey. About ten footsteps from the deceased’s house, PW2 met a group of people. He switched on the torch and quickly identified the first and second accused persons because they were his fellow villagers. At first, he did not worry and thought the first and second accused could be patrolling the village. He was just five steps away from the attackers and the torch was still on. Surprisingly, he was put under arrest despite telling them that he was a good citizen heading to Mwanza for business. One of the thugs ordered ‘finish him as he has identified us’. He was hit with an iron bar and cut with a machete and fainted. He regained consciousness while in the Hospital. 3 PW3 (F758 Detective Surgent Mgaya) remembered that, on 15th November 2017 in the morning, he was ordered by the head of the investigation department to go to Nyamilama village where the murder incident had occurred. At the crime scene, he drew a sketch map (exhibit P1). He further testified that on 15th November 2017 at around 5 pm while at the police station, Assistant Inspector Banda gave him a mattock similar to an axe for safekeeping. He labelled the exhibit with case Number NGU/IR/990/2017. On 20th November 2017 at around 5:30 pm while at Ngudu Police Station, he received other exhibits from Inspector Shigula namely one panga, an axes, two hammers, and a piece of an iron bar. The axe and the panga had blood stains. He also labelled them NGU/IR/990/2017. On 11th December 2017, in the morning hours while in the exhibit room, a police officer with force number F1331 Detective Corporal Matete came and requested the exhibits to be taken to the office of the Government Chemist in Mwanza. On 03rd September 2018 during day hours, while in Mwanza, he was phoned by his supervisor and ordered to travel to Mwanza to collect the exhibits from the office of the Government Chemist. The exhibits were the same exhibits associated with the murder of the deceased. He went and fetched the exhibits and took them to Ngudu Police Station. He tendered the exhibits and they were admitted as follows: 4 the small axe similar to a mattock as Exhibit P3; the axe as Exhibit P4; the machete as Exhibit P5; the two hammers as Exhibit P6; the iron bar as Exhibit P7, and one axe as Exhibit P8. PW4 (ASP Shigula Masegese) was informed about the murder of the deceased on 15th November 2017. He went to the crime scene and witnessed the deceased’s body which was outside the house. He took a container from the investigation kit and took the deceased’s blood swab. He labelled the container with the case number NGUDU/IR/990/2017 and handed the same to Corporal Matete for further investigation. On 20th November 2017, he was in the office at Ngudu and Assistant Inspector Dorothy requested his company to Nyamilama Village for a search. Being a senior officer than Assistant Inspector Dorothy, he took other Police Officers and they went to Nyamilama Village. They found a village leader to witness the search. They went to the house of the third accused and searched inside the house. They later went outside the house accompanied by the third accused together with his wife. At a distance of about 50 meters away from the house, they uncovered a hole and found an axe, a machete, two hammers, and an iron bar. The machete had a locally made rubber handle and the axe was disconnected from the handle. He filled in the certificate of seizure which was admitted as exhibit P9. 5 Paulo Masamaki (PW5), a resident of Nyamilama village remembered that on 20th November 2017 while at home at around 2-3 pm, he was phoned by the village chairman Joel Nyeda urging him to meet. Though he felt unwell, being the village militia person, he changed his clothes, left the house, and went to meet the village chairman. He found the chairman with the police officers at the house of the third accused. The police searched the house but found nothing. Later the third accused’s wife showed them where the exhibits were hidden. The wife of the third accused led the police about 50 meters away from the house where the exhibits were buried. They found a piece of an iron bar, a machete, an axe, and two hammers. The panga and the axe which had no handle had blood stains. The police filled in the certificate of seizure and PW5, third accused and his wife signed it. The third accused informed the people around including PW5 that such exhibits were brought by his sister (fourth accused) who is also the wife of the second accused. Methuselah Masalu (PW6) who is the Village Executive Officer and a resident of Nyamilama stated that, on 15th November 2017 while in the office at Nyamilama village, he was phoned by Inspector Matete from Ngudu Police Station. PW6 was ordered to go to the deceased’s shop where he found police officers. The police were accompanied by the first accused. Thereafter, being the Village Executive 6 Officer, the police urged him to accompany them to search the house of the first accused where they found a small mattock hidden under the mattress. Inspector Banda filled in the certificate of seizure which PW6, and the first accused signed. PW6 tendered the certificate of seizure (exhibit P10) because Inspector Band died before the trial of the case. PW7 (E9348 D/S Edward) testified that on 15th November 2017, a group of peoples’ militia (sungusungu) arrived at Ngudu Police Station with the second accused as a murder suspect. PW7 recorded the statement of the second accused who confessed to participating in the killing of the deceased (exhibit P11). PW9 (F. 1331 D/S Matete was among the police officers who went to the crime scene on 15th November 2017. At the crime scene, he found the body of the deceased with several wounds on the head. The wounds were caused by a sharp object. Inspector Shigula took a blood swab from the deceased put the same in a small container and labelled it (NGUDU/IR/990/2017). On 11th December 2017, PW9 received one machete with blood stains, and a mattock similar to a small axe which also had blood stains and ferried them to the Government Chemist for examination. The exhibits were believed to have been involved in the murder of the deceased. Thereafter, he followed up the blood swab from Doctor Mgasa and prepared a cover letter and took the exhibits to the office of the Government 7 Chemist in Mwanza where they were received by Lucy Anthanasio. He further testified that, according to his investigation, the small axe similar to a mattock was found in the house of the first accused and the axe without a handle was found in the house of the third accused. On 19th November 2017, he witnessed the search in the first accused’s house where the mattock was seized. PW10 (F.8850 D/C Leonard) recorded the statement of the first accused on 15th November 2017. During the interview, the first accused confessed to having participated in the murder of the deceased though the first accused cautioned statement did not pass the tests of admission. Lucy Athanasio Kessy (PW8) worked as a Laboratory Assistant at the Office of the Government Chemist in Mwanza. On 11th December 2017 while in the office, Inspector Matete arrived from Ngudu with exhibits and a letter from the Police Station. The exhibits and the letter were accompanied by a Police Form Number 180. The exhibits were a blood swab believed to be human blood; one panga with blood stains believed to be human blood; an axe without a handle which had blood stains believed to be human blood; a small axe or mattock with blood stains believed to be human blood. After receiving the blood sample and exhibits, she checked them in comparison with the accompanying letter and the PF 180. She issued laboratory number 1661 of 2017 and packed them for delivery to the Office 8 of the Government Chemist in Dar es Salaam. On 07th February 2018, she was instructed by the Zonal Manager to take the sample and exhibits to the Office of the Government Chemist in Dar es Salaam. She departed on 07th February 2018 to Dar es Salaam where she was received at the airport and taken straight to the office of the Government Chemist. She found the analyst on duty, Brassy Kaijunga, who received the exhibits and the blood sample. On 29th August 2018, PW8 was sent by the Zonal Manager to the Office of the Government Chemist in Dar es Salaam to fetch the exhibits with laboratory number 431 of 2018 and return them to Mwanza. On 03rd September 2018, Inspector Mgaya fetched the exhibits and the report. PW11 (Kaijunga Triphone Brassy), a senior Chemist from the Office of the Government Chemist in Dar es Salaam, testified that he worked in the Department of Forensic Science and DNA Services. He was gazetted as a Government Chemist on 02nd February 2018 in the Government Gazette No. 28 of 2018. He therefore had an experience of 13 years in the field. He remembered that on 07th February 2018, while in the office on normal duties, Lucy Kessy (PW8) from their office in Mwanza arrived. PW8 carried four exhibits namely A, B, C and D. Exhibit A was the blood sample from the deceased Isack Brighton Panja; Exhibit B was a machete; Exhibit C was an axe; and Exhibit D was a small mattock. Also, PW8 9 came with two letters; the first one was a letter from the Zonal Manager of the Office of Government Chemist in Mwanza. The second letter came from the OC- CID of Kwimba. The two letters requested PW11 to examine the exhibits brought into the office. PW11 received the exhibits which were sealed; the first seal from the police and the second one from the office of the Government Chemist from Mwanza. The machete had a rubber handle and the axe had no handle. The mattock was an iron pipe designed like a small axe. After receiving the exhibits, he inspected them if they complied with the legal requirements. He thereafter assigned them laboratory number 431/2018. Initially, the same exhibits had the laboratory number 1661/2017 which was assigned from their office in Mwanza. After the preliminary inspection and labelling, he kept the exhibits in the safe within the office. He further testified that the blood sample from the deceased was in a small container. The PF indicated that the blood sample came from the deceased, Isack Brighton Panja. Also, the office has a special safe for keeping exhibits. The safe can only be accessed by the keeper using a fingerprint. He further told the court that, the DNA examination has five steps; first, the preliminary test that ascertains the human blood. Second, extraction of cells, nucleus and chromosomes. He used Chelex to extract DNA from chromosomes. Third, Polymeries Chain Reaction to 10 amplify the size and multiply the number of DNA. Fourth, injection or detection using a genetic analyzer machine. Fifth, comparison and interpretation. In the examination, using Kastle Meyer, he discerned that the blood was the human blood of a male person. He further confirmed that all the exhibits contained blood human. After the process of comparison, he discovered that blood sample A resembled the blood on exhibits B, C, and D. On 23rd August 2018, he wrote a report (exhibit P12). In the defence, the first accused confirmed to have been arrested on 15th November 2017 together with other suspects who were not arraigned. He was tortured and forced to confess by the police about the murder of the deceased. Also, the second accused informed the court that he was arrested on 15 th November 2017. The police searched his house and found nothing. At Ngudu police station, he was tortured and forced to confess. The third accused denied knowing the deceased or being involved in the murder. He consistently denied being found in possession of the items suspected to have been used in the murder. The fourth accused simply denied being involved in the murder. 11 In this case, the accused persons are facing a charge of murder under section Section 196 of the Penal Code, Cap. 16 RE 2019. The section provides that: “Any person who, with malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder.” There is no doubt, the life of Isack Brighton was ferociously terminated on the night of 15th November 2017. His death was confirmed by the Medical Doctor (PW1) who observed, without any shred of doubt, that the deceased’s death was due to hypoxia as a result of haemorrhage (exhibit P2). PW5 and PW6 witnessed the death of the deceased; the death of the deceased was uncontested. The major question begging evidence is whether or not the accused persons were responsible for such a nefarious incident. The evidence of PW2 provides an inkling of what happened on the night of 15th November 2017 when good citizens of Nyamilama Village were enjoying an unfathomable sleep. PW2 did charcoal business by ferrying them to Mwanza City. On the fateful day, he scheduled with associates to leave the village for an early arrival in Mwanza with bags of charcoal. Before departing, he armed himself with a rechargeable torch to light the way. He walked towards the place where he always parked the bicycle. On the way, just ten footsteps away from the house of 12 the deceased, he was stopped by a group of thugs. He lit the torch and identified the first and second accused. Believing that they were just on village patrol, he was not worried and introduced himself as a virtuous citizen heading to Mwanza for business. Alas, the other criminals ordered his immediate attack as he had identified them. PW2 was struck with an iron bar and a machete; he lost consciousness. He found his senses while in the hospital battling for his life. He immediately narrated the incident to the chairman of the village and other people around. During the trial, PW2 remained content about the identity of the first and second accused. His identification of the first and second accused persons is indomitable. First, the fact that PW2 engaged in the charcoal business and he and other persons within the same career customarily travelled to Mwanza at midnight was uncontroverted. Second, he was equipped with a torch sufficient to supply the required light to identify a person. Third, the first and second accused were just five steps away from him. Fourth, he knew the first and second accused persons because they were his fellow Nyamilama Villagers. Fifth, the brief conversation with the first and second accused was sufficient for a correct identification. I am aware of the legal principles governing evidence of identification at night. In the case of Stuart Erasto Yakobo v. The Republic, Criminal Appeal No. 202 of 2004, CAT at Dar es Salaam (unreported) stated that: 13 ‘…visual identification should only be relied upon when all possibilities of mistaken identity are eliminated and the court is satisfied that the evidence before it is absolutely watertight.’ The landmark case of Waziri Amani v. Republic [1980] TLR 250 lists the qualities of evidence of visual identification thus: Although no hard and fast rules can be laid down as to the manner a trial judge should determine questions of identity, it seems clear to us that he could not be said to have properly resolved the issue unless there is shown on the record a careful and considered analysis of all the surrounding circumstances of the crime being tried. We would, for example, expect, to find in the record questions such as the following posed and resolved by him: the time the witness had the accused under observation; the distance at which he observed him; the conditions in which such observation occurred for instance, whether it was day or night- time whether there was good or poor light at the scene; and further whether the witness knows or had seen the accused before or not.’ See also, the case of Shiku Salehe v. Republic [1987] TLR 193 and R. v. Eria Sebwato [1960] E.A. 174. My analysis of the PW2’s evidence does not leave any questions. He was the witness deserving trust and credence. I had nothing to doubt his identification of the first and second accused. 14 Furthermore, the evidence of PW2 corroborates the other information on the involvement of the first and second accused in the murder. PW6, being the Village Executive Officer witnessed the search of the first accused’s house where a small mattock similar to an axe was seized (exhibit P3). The same item was stained with what was believed to be the deceased’s blood. The same item was analysed for further evidence linking the first accused to the murder. Also, the fourth accused (the wife of the second accused) was linked to the murder after ferrying items from their house to her brother (the third accused). PW4 participated in the search of the house of the third accused which was believed to have some weapons used in the murder. The items were recovered about fifty meters from the house of the third accused. The search was witnessed by PW5. During the search, they seized one machete, one axe disconnected from the handle, two hammers and an iron bar. The machete and the axe were stained with blood. Further examination was carried out to establish whether or not the blood belonged to the deceased. The DNA analysis revealed that the blood sample from the deceased’s blood swab (exhibit A) resembled the blood stains in exhibit B (machete), exhibit C (the axe) and exhibit D (small mattock). See, exhibit P12. Precisely, the machete and the axe which were smuggled by the fourth accused from the second accused to the third accused had blood stains of the deceased. Also, the small mattock seized from the house of the first accused had blood stains from the deceased. When 15 arrested and interrogated, the second accused confessed to the killing of the deceased (exhibit P11). I am aware of the fact that this murder involved many accused persons. The evidence of PW2 hits that the first and second accused were not the only persons involved in the incident. He was emphatic that the thugs were a group of armed men. The first and second accused were among the attackers and the rest were not brought to book for some reasons. It is therefore pertinent to indicate to what extent the first and second accused were responsible for the murder. The law under Section 23 of the Penal Code, Cap. 16 RE 2022 provides that: “When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, 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 deemed to have committed the offence.” Also, according to the case of the Republic V. ACP Abdallah Zombe and 12 others, Criminal Sessions Case No. 26 of 2006 (unreported), a person may be convicted based on the doctrine of common intention if the following conditions are met: - 16 (i) ‘It must be shown that an accused person shared with the actual perpetrator(s) of the crime specific unlawful purpose which led to the commission of the offence charged; (ii) The offence committed must be a probable consequence of the prosecution of the unlawful purpose; (iii) To constitute a common intention, it is not necessary that there should have been any concerted agreement between the accused persons prior to the commission of the offence. Common intention may be inferred from presence, their actions and the omission of any of them to dissociate himself from the offence. (iv) Mere presence at the scene of crime is not enough to infer common intention.’ Also, this court is obliged to make the finding based on circumstantial evidence. None of the prosecution witnesses was an eyewitness to the murder of the deceased. PW2 spotted the first and second accused either before or after the incident but did not witness the deceased’s attack. The other evidence only supports the fact that the first and second accused were responsible for the murder. This court, therefore, has to warn itself of the danger of basing a conviction based on circumstantial evidence. In the case of Bahati Makeja v. The Republic, Criminal Appeal No. 118 of 2006 the Court had the following observation: ‘in a case depending conclusively on circumstantial evidence the Court must before deciding on a conviction, find that the inculpatory facts are 17 incompatible with the innocence of the accused and are incapable of explanation upon any other reasonable hypothesis than of guilty.’ See, the cases of Ally Bakari and Pili Bakari V. Republic [1992] TLR 10; Protas John Katogole and Another V. Republic [1992] TLR 51 and Hassan Fathil V. R [1994] TLR 89. I have taken all reasonable caution and I am convinced that it was not by coincidence that the first and second accused were spotted by PW2 near the crime scene on the night of the attack. It was not by luck that the first accused possessed a small mattock stained with the deceased’s blood. I am convinced, without hesitation that the first and second accused were among the murderers and therefore responsible for the deceased’s death. Regardless the degree of their participation, the murder was the probable consequence of their common intention. Also, there was no evidence suggesting that the second accused’s confession was procured through torture or coercion. Furthermore, the defence by the first and second accused did not shed any doubt on the prosecution evidence. I find the prosecution evidence sufficient to warrant a conviction against the first and second accused. However, there is dearth of evidence on the involvement of the third and fourth accused in the murder. The information against the accused persons is on the murder which has not been proved against the third and fourth 18 accused. I hereby convict the first and second accused for the offence of murder as per section 196 of the Penal Code, Cap. 16 RE 2019 and acquit the third and fourth accused. DATED at Mwanza this 25th Day of September 2024. Ntemi N. Kilekamajenga JUDGE 25/09/2024 19 SENTENCE I am bound to follow and abide by the law of the country by imposing the appropriate sentence for the offence of murder. I hereby sentence the first, Jacob Lucas Kalaja and second accused, Boniphace Nestory Marco to suffer death by hanging. Ntemi N. Kilekamajenga. JUDGE 25/09/2024 20 Court: Judgement delivered this 25th September in the presence of the learned State Attorney, Mr. George Ngemela; the accused persons and the learned advocate, Mr. Geofrey Reuben Kishosha for the second accused and also holding brief for advocate Linus Amri for the first accused, and fourth accused (advocate Machele Makaruka). Also in the presence of advocate Stella Sangawe for the third accused. Right of appeal explained to the parties. Ntemi N. Kilekamajenga. JUDGE 25/09/2024 21