Kitonyo s

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA {CORAM: LILA, J.A., KENTE, 3.A., And MGONYA. J.A/I CRIMINAL APPEAL NO 540 OF 2020 KITONYO S/O MACHANGU MWITA ............... .......... ........... APPELLANT VERSUS THE REPUBLIC................ ............... ......... ............... ...... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania, at Musoma) (Galeba. J.1 dated the 15th day of October, 2020 in Criminal Session No. 52 of 2020 JUDGMENT OF THE COURT 16th & 26th July, 2024 MGONYA, J.A.: Bhoke d/o Magweiga and Petro @ Peter s/o Magweiga of about six (6) and two (2) years respectively, lost their lives on 18th August, 2018 in an awful and brutal manner. Kitonyo s/o Machangu Mwita, the appellant was suspected to be the murderer. Thus, he stood charged before the High Court sitting at Musoma. Upon hearing, the High Court convicted and sentenced the appellant to the mandatory death sentence. Aggrieved with the decision, the appellant has appealed before this Court. The facts which led to the appellant's arraignment, trial and conviction, albeit in brief, go thus: Magweiga Mugendi (PW4), testified before the trial court that, the appellant's son had married PW4's daughter, one Rhobi, To solemnize the marriage, the appellant paid bride price which involved six heads of cattle. Unfortunately, within a short while after the marriage, the appellant's son who had married PW4's daughter died in a fatal accident in Mwanza. The death of her husband left Rhobi a widow. The appellant approached Rhobi suggesting that he wanted her to be his new wife. The latter dismissed the marital advance of her father-in-law. The appellant became furious and returned her to her parents. Due to the relocation, the appellant had to claim the six heads of cattle he had paid as dowry. PW4 managed to return five cattle out of six and promised to return the remaining cattle immediately when he got it. Following that promise, the appellant allegedly uttered nasty Kuria words which meant that PW4 was sleeping with his own mother, Mary Mugendi, PW4's wife who was around told the appellant that she would call the police as the strife increased. Having heard that threat from Mary, the appellant withdrew a machete from his jacket and injured Mary Mugendi on both arms. PW4 managed to snatch a machete from the appellant and his wife went with it to the police. Having his machete snatched, the appellant ran down the road and came back with a metal rod (iron bar) which he allegedly got from his son called Chacha Kitonyo. He went back to PW4's house direct to where his children were playing behind the house and hit Bhoke Magweiga with that weapon two times on the head whereas her brain protruded from the injured skull due to the hard impact of the blow. Then the appellant hit another kid one Peter @ Petro Magweiga on his head breaking his skull. Due to the assault, Bhoke died on the spot while Petro was taken to Ikizu Health Center. However, soon after reaching the Heath Centre, the young boy also died. According to PW3, Methodius Kaijage Kagumilwa, a medical doctor, who carried out postmortem examinations, he testified that, in his examination he noted that, Petro Magweiga, had been hit by a blunt object on the head and the brain was flowing out from the skull, Likewise, when he examined Bhoke Magweiga's body, he noted that she had been hit on the head and her skull was broken and brain was hanging out of the skull. Following the death of the two innocent souls, the appellant stood charged with their murder contrary to section 196 of the Penal Code, Cap. 16 [R.E. 2002] to which he pleaded not guilty. After the trial consisting of four prosecution witnesses and a sole defence witness, the trial court found that the case against the appellant was proved to the hilt thus it convicted and sentenced him as we have indicated earlier. Contesting his innocence, the appellant approached this Court, where he lodged a memorandum of appeal which comprises of three grounds of complaint namely: L That, the trial court erred in fact and law upon reliance o f uncorrelated evidence from PW4, the only eye witness to convict and sentence the appellant o f the offence o f murder; 2, That, the trial court's refusal to use as evidence the statement made by PW4 (the complainant) at the police station and which was tendered in court as exhibit DE. 1 worked againstArticle 107A 2 (e) o f the Constitution o f the United Republic o f Tanzania (as amended), to prejudice rights o f the appellant; and 3. That, there were omissions by the trial court when it failed to explain to the assessors their duty before commencement o f the prosecution case and hence, they failed to give their opinion within the ambit o f the law. At the hearing of the appeal, Mr. Daud John Mahemba appeared for the appellant who was also in attendance whereas, Mr. Isihaka Ibrahim Mohamed assisted by Ms. Agma Agrey Haule, both learned State Attorneys appeared for the respondent, Republic. When invited to argue in support of the appeal, Mr. Mahemba, at the very outset prayed to abandon the 3rd ground of appeal. Meanwhile he prayed to submit on the 1st and 2nd grounds conjointly as they relate to the complaint that the prosecution case was not proved beyond reasonable doubt. He said, it was only PW4 who was the eye witness out of four witnesses brought by the prosecution before the trial court. That after the incident, PW4 gave his statement at the Police which was admitted as exhibit DE.l. However, the contents of the said exhibit are different from PW4's testimony before the court. By referring this Court to page 89 - 90 of the record of appeal, the learned counsel contended that, before the court, PW4 testified that the appellant took from his jacket a machete and cut his wife. He also took from the appellant a knife and threw it inside his house. After he snatched those weapons, the appellant went across the road and came back with a piece of iron and hit the children; while in his statement, PW4 did not show that the appellant ran and went back to kill the children. Mr. Mahemba argued further that, regarding the weapon used to hit the children, the post mortem report (exhibit PE. 2) revealed that, the object used to kill them was blunt, while in his statement PW4 stated that the appellant hit his children with a machete. In his view, there are variances in PW4's testimony hence, the trial Judge ought to have looked closely at PW4's credibility in relation to his statement at the Police Station and his testimony before conviction. In his conclusion, Mr. Mahemba stated that, in the impugned judgment, the High Court Judge was influenced by the very unfortunate circumstances of the case to reach conviction. Then premising on what he submitted, the learned counsel implored us to allow this appeal. In his reply, Mr. Isihaka at the outset declared their position that they do not support the appeal. He went on to submit that, the case against the appellant was proved beyond reasonable doubt. Mr. Isihaka told the Court that, PW4 was a credible and reliable witness. Responding to the variances pointed out by the appellant's counsel, the [earned State Attorney contended that, the difference on the weapon used is not material as on their part, they were interested on the identity of the person who killed the children. According to Mr. Isihaka, PW4's testimony was not shaken. He further submitted that, on the stated contradiction by PW4 that the appellant went to his house with a machete and later after being snatched he went back and came up with a piece of iron, it was Mr. Isihaka's argument that PW4 was consistent throughout his testimony. Responding to the contradiction on the contents of exhibit DE. 1 and PW4's testimony, the learned State Attorney argued that, the event occurred on 18/8/2018, and PW4's statement was recorded at 09:05 am being three hours after the incident. That PW4 at that time, as a parent who had lost two children brutally, was in a state of shock which might have made him not stable. Hence, due to the state he was passing through, the difference on the kind of weapon that was used could occur. To bolster his position, he cited the case of Ex. G. 2434 PC George v. Republic, Criminal Appeal No. 8/2018 (unreported) at page 11, where we stated that, not every variance is fatal. Further to that, by referring us at page 85 of the record of appeal where the post mortem report in respect of Petro Magweiga indicated that, there was a 'single depressed fracture', it was the learned State Attorney's submission that the same could not have been caused by sharp object but a blunt object. Basing on what he submitted, the learned counsel beseeched the Court to dismiss this appeal. In his rejoinder, Mr. Mahemba submitted that, the inconsistences were not minor as they went to the root of the case. According to him, the nature of the weapon used to kill is crucial. It was his stance that, it is dangerous to ground the conviction relying solely on PW4's evidence. Consequently, he proceeded to pray this Court to find that the case was not proved to the standard required. At the outset we have to state that, in determining this appeal, we are going to use the same approach as Mr. Mahemba's line of submission, whereby the two grounds of appeal will be discussed and determined conjointly. Having keenly heard the rival submissions by the counsel from both parties, the main issue for determination is whether the appellant's appeal has merit. It is settled law that, in a murder trial, apart from the identity of the murderer, the prosecution must prove all the ingredients of murder in order to secure a conviction thereof. The said ingredients are; One, that the deceased is really dead; two, the death is an unnatural caused by someone unlawfully; three, that such death was caused by the accused; and four, that the killing was by malice aforethought See - Phillimon Jumanne Agala v. Republic, Criminal Appeal No. 187 of 2015 and Anthony Kinanila & Another v. Republic, Criminal Appeal No. 83 of 2021 (both unreported). 8 In this appeal, as it can be gathered from the evidence, it is undisputed that Bhoke s/o Magweiga and Petro Magweiga @ Peter Magweiga died and their deaths were unlawfully caused. Likewise, the facts that the killing was committed with malice aforethought is not disputed as evidenced by the kind of weapon used and the part of the body where the injuries were inflicted, being on the heads of both children. See Enock Kipela v. Republic, (Criminal Appeal No. 150 of 1994) [1999] TZCA 7 (10 June 1999) TanzLII. The main issue in this appeal is whether it is the appellant who is responsible for the murder or not. We are cognizant of the law that, this being the first appeal, this Court shall have to re-appraise and re-evaluate the evidence on record. See: Heleniko Ndimki @ Kaleji & Another v. Republic, Criminal Appeal No. 443 of 2018 (unreported). Going through the record of this appeal, it was testified by PW4 that following the dispute which arose between him and the appellant who went armed at his place, his two children were killed by the appellant who hit them on their heads using an iron bar before he ran away. That, due to the injury inflicted by the appellant, one child died instantly as her skull was raptured and part of 9 the brain protruded out and the second child died while undergoing treatment. In his defence, the appellant who testified as DW1, did not dispute that, he went to PW4's home on the material date and he as well did not dispute that, once he was there, the dispute arose. Nonetheless, the appellant turned the tabie saying that he did not assault PW4's family rather he was the one who was assaulted by a handle of the hoe and the chair to the extent that he became unconscious. Basically, the appellant denied any commission of the murder. From PW4's testimony, the trial Judge was satisfied with the prosecution evidence that it was the appellant and not any other person who brutally killed the children. He accordingly convicted him as charged. It was the above findings which moved the appellant to implore this Court to reverse the impugned decision on the reason that; PW4 was not a credible witness for the court to base conviction on his testimony. As stated earlier, the point of attack relied on the appellant's counsel to dispute PW4's testimony is the variance of the weapon used to inflict the injury which led to the deaths of the two children. 10 It was Mr. Mahemba's submission that throughout the testimony, PW4 testified that, the appellant hit his children by the iron bar, while in his statement at the Police (exhibit DE. 1) he stated that, the appellant used a machete to kill his children. According to Mr. Mahemba this is a material contradiction as it goes to the root of the case. On the other hand, Mr. Isihaka for the Republic contended that the contradiction pointed out is very minor. On what is material and minor contradiction, this Court in Denis Frank Tarimo @ Novate & Another v. Republic, Criminal Appeal No. 140 of 2021 (unreported) stated that: "Major contradictions are those that are in respect o f facts necessary to prove the ingredients o f the offence charged. These, if existing, are deemed to shake the very substratum o f the case in question. Contradictions as these, go to the root o f the case and badiy impact on the credibility o f the witnesses giving the evidence, and certainly, the evidence itself On the other hand, the contradictions in the evidence are minor and trivial, if they relate to peripheral and marginal facts that do not seek to directly prove the ingredients o f the offence charged. They are contradictions which whether present or absent, li the ingredients o f the offence, stiil remain proved. The impact o f these contradictions to the case, has been adjudged to be inconsequential to the credibility o f the witnesses, leaving it intact, with no ability to adversely affect evidential weight o f the evidence adduced." Premising our discussion on the above position, we concur with Mr, Isihaka that, the credibility of PW4 cannot be shattered by the contradiction simply by the kind of the weapon pointed out from his evidence before the trial court and in exhibit DE.l. Undisputedly, it is on record at page 89 of this appeal, that in his statement (exhibit DE.l) which was recorded at 09:05 soon after the tragedy, PW4 stated that the appellant assaulted his wife with a machete and killed his children. Whereas, when he was testifying before the trial court two years later, PW4 testified that, after he managed to snatch a machete and a knife from the appellant, the appellant ran across the road and came back with a metal road (iron bar), which he used to hit his children. Nevertheless, PW4 throughout his testimony before the trial court he maintained that the appellant used an iron bar and not a machete. When he was cross examined by the appellant's advocate one Mr. Kurwa Sanya on the variance, PW4 responded that the appellant used iron bar and that is what he stated at the Police Station. Further, PW4 when responding to the assessor's questions, he stated that, the police did not read to him what they wrote after recording his statement. This Court when faced with an akin situation in Denis Frank Tarimo @ Novat & Another V. Republic (supra), where there was a variance on the weapons, the Court held that: "....in any case, the point is that the second appellant had deadly weapons with which he used to attack PW3 and to impose threat in the house." [Emphasize supplied]. Equally, in this appeal, as we have alluded to above that the deceased's deaths were due to the injury inflicted after being hit brutally on their heads, it is clear that the weapon used was a deadly weapon; regardless of it being an iron bar or a machete. Therefore, the issue on whether the same was a machete or iron bar is minor and it has no impact in respect of the facts necessary to prove the ingredients of the offence of murder. That said, PW4's credibility cannot be discredited on the alleged contradiction on the weapon used to kill his children. Further to that, it is on record that PW4's testimony before the trial court is corroborated by PW3 who testified that, he examined the two bodies and noted that they were both hit by a blunt object on their heads; breaking their skulls. All these prove that the weapon used was an iron bar as testified by PW4 while under oath before the trial court. Thus, we find that PW4 was a credible witness. There was another complaint by Mr. Mahemba that, before the court, PW4 narration of the event is distinct from what he narrated at the Police Station when recording his statement (exhibit DE.l). That before the court, he stated that the appellant took from his jacket a machete and cut his wife. Further that, after the machete was snatched from him, the appellant ran away across the road and came back with an iron bar and hit the two children. It was Mr. Mahemba's argument that those facts are not contained in his statement (exhibit DE.l). Hence, this was a contradiction in PW4's testimony which shakes his credibility. Having gone through exhibit DE.l, it is clearly shown that, PW4 recorded what had befallen his family on 18/8/2018. He narrated what was the relationship between him and the appellant, what was the source of the conflict on the material date and finally the fight which erupted after his failure to give the appellant his remaining cattle. On our part, having re-evaluated the evidence, we find the statement recorded in exhibit DE.l was brief but exhaustive. We did not expect that when 14 recording the statement soon after the horrible incident, PW4 could be expected to be in a stable condition to narrate each and everything, word by word on what happened while he was in pain and shock after he lost his child, while another child was in coma, and at the same time his wife having been injured. We could have a different view if PW4 narrated a very different story from what he testified and he then kept altering his testimony by naming another different person as the attacker different from the appellant whom he mentioned in exhibit DE.l and in his testimony. Therefore, the complaint that, exhibit DE.l did not contain a similar story with what was testified two years later before the court; with respect, is unjustified and meritless. It was stated by this Court in Niyonzima Augustine v. Republic, Criminal Appeal No. 483 of 2015 (unreported), where we referred to our previous decision in the case of Omari Ahmed v. Republic (1983) TLR 52 that: "That the trial court's finding as to credibility o f witnesses is usually binding on an appeal court unless there are circumstances on the record which call for reassessment o f their credibility". 15 All said, it is our determined view that, the contradictions pointed out by the appellant's counsel are minor and trivial, Thus, we did not find anything substantial to doubt the credibility of PW4 in his testimony that, on the material date he saw the appellant hit his children with an iron bar and finally they died due to serious and brutal injuries. Like the High Court, we also find that the prosecution proved the case against the appellant beyond reasonable doubt. We find the reasoning of the trial Judge correct that, on the material date, the visit of the appellant to the house of PW4 was not a peaceful visit. Further, we agree with the trial Judge that, the strife occurred after the failure of PW4 to return the appellant's cow and the threat from PW4's wife to call the police which was like an insult to him. From all that, the appellant opted to kill the two innocent children apparently showing them that he was not afraid of anything. To the appellant, killing was a better way to demonstrate his anger at the detriment of the PW4's children regardless of the fact that the value of human life is not comparable to a hundred million cows. From the evidence and circumstances of this case, nothing portrays that apart from the appellant there was any other person who could have committed the offence. 16 Having said and done so, we find nothing useful to fault the trial court's decision. Consequently, we find no merit in the appeal, which we hereby dismiss in its entirety. DATED at DAR ES SALAAM this 25th day of July, 2024. S. A. LILA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Judgment delivered this 26th day of July, 2024 in the presence of Mr. Tawabu Yahya Issa, learned Senior State attorney for the Respondent/Republic, who took brief for Mr. Daud John Mahemba, counsel for the appellant is hereby certified as a true copy of the original. :g eya STRAR PPEAL 17