republic vs kegokora jackson kegokora 2020 tzhc 4421 11 december 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF MUSOMA AT TARIME (ORIGINAL JURISDICTION) CRIMINAL SESSIONS CASE NO 38 OF 2020 THE REPUBLIC VERSUS KEGOKORA S/O JACKSON @ KEGOKORA JUDGMENT 19thNovember and 11th December, 2020 KISANYA, J: Kegokora Jackson @ Kegokora has been arraigned before this Court for offence of murder contrary to sections 196 and 197 of the Penal Code [Cap 16 RE 2019] (the Penal Code). It was the prosecution case that, on 1/06/2018 at Nyisense Village within Serengenti District in Mara Region, the accused murdered one, Nyemwa Muhochi @ Matiko. In its endeavor to establish the commission of offence by the accused, the prosecution paraded the following seven witnesses: Muhochi Matiko Muhochi (PW1), the deceased father and the accused person's uncle; Ryoba Ntamunge (PW2), the hamlet chairman; Sando Mwita Matiko (PW3), the deceased brother who witnessed examination of the deceased body; Albert Kasanga Mnalimi (PW4), a clinical officer who examined the deceased's body and filled in the report on post mortem examination; G. 3694 D/C Shabani (PW5), a police officer who investigated the case; and G.6873 DC Benson (PW6), a police officer who 1 recorded the statement of one Julius Kengo'mbe. To supplement the oral testimonies, the prosecution tendered three exhibits namely, the report on post­ mortem examination (Exhibit PEI); an affidavit sworn by G.6873 DC Benson to the effect that Julius Keng'ombe could not be relocated (Exhibit PE2); and statement of Julius Keng'ombe (Exhibit PE3). Briefly, on the material date (1/06/2020) at around 1730 hours, the deceased in companion of other persons including Julius Keng'ombe were drinking local brew known as gongo at the pombe shop owned by Wankuru Wanswa. The said pombe shop is located at the Centre of Nyisense Hamlet, Kenokwe Village within Serengeti District. Later on, the accused person arrived and the deceased started to demand some money which the accused owed him. This resulted to a fight between the accused and the deceased. The fight was resolved by Muhochi Matiko Muhochi (PW1). The accused left the pombe shop. He returned 45 minutes Fater, at around 1830 hours. This time, he was armed with a bow, arrow and panga. He stabbed the deceased on the head and buttocks. PW1 Muhochi who was nearby the local club went to the crime scene. He found the deceased already stabbed. When PW1 Muchochi attempted to arrest the accused, he was stabbed with panga at the right shoulder, left hand and ear. The accused went on to stab one Robert Mwita who was in his restaurant. However, he was arrested by the villagers when he was attempting to flee. The villagers handed over the accused to the Village Chairman one, Mwita Ryoba who was at the bar/grocery with Ryoba Tamunge (PW2). The Village Chairperson took the accused to the Village Office until when he was handed over to the police officers including, G.3694 DC Shaban (PW5) from Mugumu Police Station. At the scene of crime, the deceased was bleeding profusely due to the sustained cut wounds. He met his demise when they were trying to take him to hospital. His body was examined on the next day (2/06/2018) by PW4 Albert Kasanga 2 Mnalimi. PW3 was among of the deceased relative who identified the body which was examined by PW4. According to PW4 and the Report on Post- Mortem Examination (Exhibit PEI), the cause of death was excessive bleeding. Upon complying with the conditions set under section 34B (2) of the Evidence Act [Cap. 6, R.E.2019], the prosecution tendered the statement of Julius Keng'ombe (Exhibit PE3) who witnessed the accused person stabbing the deceased. Basing on the evidence given by the prosecution, the Court was satisfied that, the accused had a case to answer. In terms of section 293(2) of the Criminal Procedure Act [Cap. 20, R.E. 2019] (the CPA), the Court informed him of his right to give evidence on oath or otherwise, and call witnesses. He opted to give evidence on oath without calling any witness. In his defence, the accused person denied to have killed the deceased. He raised the defence of alibi. He deposed that, he was arrested due to the fight/argument he had with the deceased before the incident. However, he conceded that, the fight was mediated by PW1 Muhochi. Unlike Julius Keng'ombe who stated that the fight was over the money, the accused deposed that, the fight was over the bar attendant whom he (the accused) bought one beer, an act which did not please the deceased. The accused person adduced that, following that fight, he moved to another bar and continued to drink beer until when he heard the alarm (yowb) raised from the pombe shop. He stated further that, he was arrested when he went to the scene of crime in the course of responding to. the raised alarm. At the hearing of this case, the Republic was represented by Mr. Frank Nchanila, learned State Attorney while the accused person enjoyed the legal service of Mr. Paul Obwana, learned advocate. 3 In his final submission, Mr. Obwana moved the Court to consider contradictions between Exhibit PE3 and statement of the said Julius Keng'ombe which was read during committal proceedings. He was of the view that, the accused was surprised as some of the contents of Exhibit PE3 were not read to the accused during committal. I The learned advocate submitted further that, there was no dispute that, Nyemwa Muhochi Matiko is dead and that, he died an unnatural death. However, he argued that the prosecution had failed to prove that, the deceased was killed by the accused person with malice aforethought. His argument was based on the following reasons: (a) There are contradictions between PW1 and PE3 in that; (i) PW1 stated he was outside the bar while PE3 shows that he was inside the bar drinking local brew; (ii) PW1 heard the sound of panga being inflicted to the deceased while, PE3 does state about the sound of panga; (iii) PW1 deposed that, he got hold of the accused while Exhibit PE3 states that, PW1 arrested the accused. (b) It was not possible for PW1 to identify and see the accused stabbing the deceased at the distance of 15 meters considering that, the light inside the house was not brighter than the light outside the house. (c) That the panga and arrow in possession of the accused were not tendered as exhibits. In the light of the above, the learned counsel urged the Court to find the accused person not guilty of the offence. Replying, Mr. Nchanila argued that the prosecution had proved its case beyond reasonable doubt. It was his submission that, there was no dispute that, Nyemwa Muhochi Matiko is dead and that, he died unnatural death. The learned 4 Attorney went on to argue that, the deceased was stabbed to death by the accused person. His argument was based on the following: (a) Statement of Julius Kengo'mbe (Exhibit PE3) who witnessed the accused person stabbing the deceased was corroborated by PW1 who stated that: the fight between the accused and the deceased person was around 1730 hours; he mediated the said fight; he attempted to arrest the accused immediately and was stabbed by him. (b) Exhibit PE3 was corroborated by PW1, PW3 and Exhibit PEI to the effect that, the deceased was stabbed on the head and buttocks. (c) Pursuant to PW1 the incident happened in the evening time when the sunlight was still on hence, both PW1 and Julius Keng'ombe were able to identify the accused person. In relation to the issue whether had malice aforethought, Mr. Nchanila referred the Court to the case of Enock Kipela v Republic, Criminal Appeal No. 150 of 1994 (unreported) where the Court of Appeal pointed out the factors to be taken into account in determining whether the accused had malice aforethought. The learned State attorney submitted that the accused had malice aforethought on the reasons that: he stabbed the deceased by using a panga which a lethal weapon; the panga was inflicted on the head and buttocks whereby a head is sensitive part of the body; there were two blows one on the head and the other on the buttocks; the accused uttered that "ulikuwa unasema nini, sema nikusikid'\ and the accused person stabbed PW1 who wanted to arrest him. Mr. Nchanila further submitted that, credibility of the prosecution witnesses was not challenged or impeached in accordance with sections 154 and 164(1) (c) of the Evidence Act, Cap. 6. R.E. 2019. Thus, he asked the Court to consider that, all prosecution witnesses were credible. 5 As regards Exhibit PE3, Mr. Nchanila submitted that the said statement was tendered after complying with the provisions of section 34B (2) of the Evidence Act (supra). He argued that, since the notice was issued one day before the hearing date and a copy of the original statement appended thereto, the accused was not surprised in Court. Further to that, he argued that, the defence did not object to the admission of the statement in evidence. Responding to the contradictions pointed out by the counsel for the defence, Mr. Nchanila argued that, the same do not go to the root of the case. Making reference to the case of Chrizant John vs R, Criminal Appeal No. 313 of 2015, CAT at Bukoba (unreported), he urged the court to disregard the same. For the foresaid reason, Mr. Nchanila moved the Court to find that, the prosecution had proved its case on the required standard and convict the accused person of murder. In the Course of hearing this case, the Court was aided by three assessors. Therefore, I summed up to them the evidence adduced by both parties and directed them on matters of facts and law. Upon inviting the assessors' opinion, they were of the opinion that the accused was identified as the one who stabbed the deceased thereby causing his death. All assessors went on to opine that, the accused had malice aforethought of killing the deceased. Therefore, the assessors were of the view that, the accused was guilty of murder as charged. As stated herein, the accused person stands charged with offence of murder. In order to prove this offence, the prosecution is required to prove the following: (a)that there is a person who has died an unnatural death; (b)that the death is a result of an unlawful act by the accused person before the court; and 6 (c) that the accused person when doing the unlawful act intended to cause death or cause grievous bodily harm. Therefore, this Court is duty bound to determine whether evidence adduced by the prosecution proved the above ingredients of murder. The standard of proving each ingredient is beyond all reasonable doubts. The first ingredient requires us to determine whether there is a person who died an unnatural death. It was not disputed by the prosecution and the defence that, Nyemwa Muhochi Matiko is dead. According to PW1 Muhochi, and Exhibit PE3, the said Nyemwa Muhochi Matiko was stabbed with panga. In his defence, the accused person (DW1) did not dispute that the deceased was stabbed. Further, evidence of PW4 Albert Mnalimi and the report on post mortem examination (Exhibit PEI) reveal the cause of death as excessive bleeding due to cut wounds on the head and buttocks. In view thereof, I am in agreement with the counsel for both parties that, Nyemwa Muchochi Matiko is dead and that he died of an unnatural death. Thus, the first ingredient of murder was duly proved by the prosecution. The second and crucial issue is whether the accused person is the one who killed the deceased. Having examined the evidence on record, I find that the only eye witness who witnessed what happened is Julius Keng'ombe. His statement (Exhibit PE3) was admitted in evidence under section 34B (1) and (2) of the Evidence Act (supra). It is settled law that all conditions set under section 34B (2) of the Evidence Act must be complied with. See Twaha Ally and 5 Others vs R, Criminal Appeal No. 78 of 2004, CAT at Dar es Salaam (unreported) In this case, the prosecution tendered an affidavit (Exhibit PE2) to show how the said Julius Keng'ombe could not be located. The notice to use his statement was served to the defence one day before the hearing and the original statement 7 appended thereto. The defence did not object admission of the statement of Julius Keng'ombe. It find that Exhibit PE3 was admitted after complied with the required conditions. According to Julius Keng'ombe (Exhibit PE3), on the fateful day (1/6/2018) around 17.30 hours, the deceased and other people including PW1 were drinking gongo at the pombe shop. The accused entered therein and the deceased started to accuse him of robbing off {kumdhulumu) his money. What followed was a fight between the deceased and the accused person and that, PW1 who had gone outside came in. He succeeded to mediate or resolve the fight and the accused person left the pombe shop. For easy of understanding what happened later, I wish to reproduce the statement of Julius Kengo'mbe who stated as follows: "Majira ya saa 18.30 hours, KIGOKORA S/O JACKSON KIGOKORA atikuja akiwa na panga pamoja na upinde alipofika aiisema uiikuwa unauiizia nini? Serna tena nikusikie ndipo NYEMWA S/O MUHOCHI ahtaka kusimama ndipo KIGOKORA S/O JACKSON KIGOKORA alimkata NYEMWA MUHOCHI kichwani na kiuononi kwa panga. Kisha kuondoka na alipofika mlangoni alikutana na mzee Mzee MUHOCHI S/O MA TIKO ambaye alimkamata lakini KIGOKORA S/O JACKSON @ KIGOKORA alimkata mzee MUHOCHI S/O MATIKO katika bega ia ku/ia kwa panga na muda huo mtuhumiwa ambaye ni KIGOKORA S/O JACKSON @ KIGOKORA alianza kukimbia na watu walianza kumkimbiza lakini aliingia katika mgahawa wa ROBERT CHACHA na akamkata kwa panga begani ndipo Mwenyekiti wa Kijiji cha Kenokwe, Mwenyekiti wa Kitongoji cha Nyisese pamoja na mtendaji 8 wa Kenokwe walimkata na kumpeleka katika Ofisi ya Kijiji cha Kenokwe..." (Emphasis supplied]. It is apparent that Julius Keng'ombe was the eye witness. His evidence was based on the evidence of visual identification. In terms of the settled law, such evidence can safely be relied upon if the Court is satisfied that, there was no possibility of mistaken identity and that the evidence is watertight. See Waziri Amani vs R. [1980] TLR 250. Although Julius did not state the means of light which aided him to identify the accused, it is reflected from the evidence of PW1 the incident happened during evening time around 1830 hours when the sunlight was still on. Furthermore, the deceased and Julius were drinking pombe together. He witnessed the fight between the accused and the deceased at around 1730 hours. Julius identified the accused when he returned to the pombe shop and heard the words uttered by him before stabbing the deceased. Furthermore, Julius named the accused person immediately after the offence. His statement was recorded on the next day at around 0800 hours. In view thereof, I am of the considered opinion that, the conditions were favorable for Julius Keng'ombe to identify the accused person on the material day and time. I am also satisfied that Exhibit PE3 was corroborated by an independent evidence as follows: First, the evidence as to a fight between the accused and the deceased around 1730 hours was corroborated by PW1. Two, the evidence that, accused person returned to the bar while armed with panga and arrow was also deposed by PW1. Three, the evidence that the accused stabbed PW1 Muhochi who wanted to arrest him was also adduced by PW1. Fourth, the evidence that the accused was stabbed on the head is also found in the evidence of PW1, PW3, PW4, PW5 and Exhibit PEI. They only differ on the cut wounds 9 inflicted at the waist as per Exhibit PE3 while other witnesses state the cut wound at the buttocks. Thus, having satisfied that, Exhibit PE3 was duly corroborated by independent evidence, I find that it can safely be relied upon. Mr. Obwana urged the Court to consider that, the statement of Julius Keng'ombe read over to the accused during committal proceedings was different from the Exhibit PE3. In terms of sections 246 (2) of the CPA, all statements or documents containing the substance of the evidence of witnesses whom the Director of Public Prosecutions intends to call at the trial are required to be read out and explained to the accused person. A witness whose statement or substance of evidence was not read out during committal proceedings cannot be called to adduce evidence unless the prosecution has given a reasonable notice in writing to the accused person or his advocate of the intention to call such witness. I have perused the records and noted that, the statement or substance of evidence of Julius Kengo'ombe was read over to the accused during committal proceeding. That was done through typed statement. Reading from the typed statement read during trial, I find that the substance of evidence of Julius read during trial was to the effect that, he witnessed the accused person stabbing the deceased and that, the accused stabbed PW1 who wanted to arrest him. Thus, the defence was made aware of the evidence to be given by the said Julius Keng'ombe. Also, I have stated herein, that the defence was served with the notice to use the statement of Julius Keng'ombe. In compliance to section 34B (2) (d) of the Evidence Act, a copy of the hand written statement (original statement) required to be admitted in evidence was appended to the notice served to the defence. Therefore, the defence was informed of the contents of original statement of Julius Kengo'mbe intended to be tendered by the prosecution. They were expected to file the notice of objection or raise an objection on admission of the io said statement. However, neither the notice of objection was not filed in Court nor objection raised when the PW6 prayed to tender the said statement. In the circumstances, I find the complaint raised by the defence is unfounded and an afterthought. It is apparent that, basing on Exhibit PE3 which was corroborated by other evidence, the prosecution proved that, the deceased was stabbed by the accused Further to that, there is circumstantial evidence deduced from PW1. The law is settled that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Mark Kasimiri vs R, Criminal Appeal No. 37 of 2017, CAT (unreported), the conditions precedent for convicting the accused basing on circumstantial evidence were stated as follows: i. That the circumstances from which an inference of guilty is sought to be drawn must be cogently and firmly established, and that those circumstances should be of a definite tendency unerringly pointing towards the guilty of the accused, and that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and non-eise (See JUSTINE JULIUS AND OTHERS VS REPUBLIC , Criminal Appeal No. 155 of 2005 (unreported)). 11 ii. That the inculpatory facts are inconsistent with the innocence of the accused person and incapable of explanation upon any other reasonable hypothesis than that ofguilt; and that before drawing inference of guilt from circumstantial evidence, it is necessary to be sure that there are no ex-existing circumstances which would weaken or destroy the inference [See, SIMON MSOKE VS REPUBLIC, (1958) EA 715A and JOHN MAGULA NDONGO VS REPUBIC, Criminal Appeal No. 18 of2004 (unreported)]. Hi. That the accused person is alleged to have been the last person to be seen with the deceased in absence of a plausible explanation to explain away the circumstances leading to death, he or she will be presumed to be the killer. [See - MATHAYO MWALIMU AND MASAI RENGWA VS REPUBLIC (supra).] iv. That each link in the chain must be carefully tested and, if in the end, it does not lead to irresistible conclusion of the accused's guilt, the whole chain must be rejected, [see SAMSON DANIEL VS REPUBLIC (1934) E.A.C.A. 154]. v. That the evidence must irresistibly point to the guilt of the accused to the exclusion of any other person, [See SHABANI MPUNZU @ ELISHA MPUNZU VS REPUBLIC, Criminal Appeal No 12 of2002(unreported)]. vi. That the facts from which an adverse inference to accused is sought must be proved beyond reasonable doubt and must be connected with the facts which inference is to be inferred. (See ALLY BAKARI VS REPUBLIC (1992) TLR, 10 and 12 ANETH KAPAZYA VS REPUBLIC, Criminal Appeal No. 69 of 2012 (unreported). In the instant case, PW1 is the father to the deceased and uncle to the accused person. He mediated the fight between the deceased and the accused. He testified that the accused left the bar and returned later while armed with a bow, panga and arrow. After a while, PW1 heard the deceased being stabbed and went immediately to the bar where he met the accused person on the door. Upon attempting to arrest him, PW1 was also stabbed on the right shoulder and left hand and ear by the accused person. The accused person was then arrested in the same vicinity when he was trying to escape. In my opinion, the said incriminating facts are incompatible with the innocence of the accused or the guilt of any other person. Thus, the prosecution proved that, it is the accused person who stabbed the deceased. I have also considered the defence raised by the defence to counter evidence adduced by PW1 and Exhibit PE3. As stated earlier, the accused raised the defence of alibi that, he was not at the scene of crime at the material time when the offence was committed. He stated that, the deceased was stabbed at the time when he had moved to the bar owned by Nyebero and that, he was arrested only because he had a fight/argument with the accused before the incident. Pursuant to section 194 (4) and (5) of the CPA, an accused person who intends to rely on the defence of alibi is required to give to the Court and the prosecution notice of his intention to rely on such defence before the. hearing of the case or furnish the prosecution with the particulars of the alibi at any time before the prosecution closes its case. The rationale for issuing the notice of alibi is to enable the prosecution to verify the alibi. If such notice is not issued, the alibi is considered as an afterthought. In terms of section 194(6) of the CPA, the 13 trial court may, depending on the circumstances of the case, accord no weight the defence of alibi adduced contrary the law. It is my considered view, one of the circumstances is whether the accused person has demonstrated his alibi on the balance of probabilities by summoning the person who was with him at the time when the offence was committed. See the case of Masoud Amlima vs R (1989) TLR 25. Despite deposing that, the deceased was stabbed at the time, when he was at another bar in the companion of Trima, Mwita John and Tibaya, the accused person did not call any of them or the bar attendant who was serving him at material time in order to prove the alibi. In such a case, I am of the view that the alibi raised by the accused did not raise any doubt to the prosecution case. This is so when it is considered that, the accused was identified by PW1 and Julius Keng'ombe (Exhibit PE3). Therefore, having examined the prosecution and defence case, I am of the humble opinion that, the prosecution proved beyond all reasonable doubt that, the deceased was stabbed by the accused person. This leads us to the last ingredient of murder which is premised on the issue on whether the accused person intended to cause death or grievous bodily harm. As rightly argued by Mr. Nchanila, the attacker may not express his intention to cause death or grievous bodily harm. Case law has established factors to be considered in considering whether or not the accused person had malice aforethought. For instance, Enock Kipala Vs Republic, Criminal Appeal No. 150 of 1994 (unreported) the Court of Appeal of Tanzania held as follows: "... usually an attacker will not declare his intention to cause death or grievous harm. Whether or not he had that intention must be 14 ascertain from various factors, including the following; (1) the type and size of the weapon, if any used in the attack; (2) the amount of force applied in the assault; (3) the part of parts of the body the blow were directed at or inflicted on; (4) the number of blows, although one blow may, depending upon the facts o f a particular case, be sufficient for this purpose; (5) the kind of injuries inflicted; (6) the attackers utterances, if any, made before, during or after the killing; and (7) the conduct of the attacker before and after the killing." It is in evidence that the accused stabbed the deceased by using a lethal weapon to wit, panga. The said weapon was directed at the head and buttocks. Head is a sensitive part of the body to be inflicted with a panga. Further, the post mortem report (Exhibit PEI) tendered by PW4 shows that cut wound on the head was 28 length while the cut wound on the buttocks was 6 length. Such evidence reveals the accused person stabbed the deceased more than once and that excessive force was applied. It is also in evidence that before stabbing the deceased the accused uttered "ulikuwa unasema nini, sema tena nikusikid'. Lastly, having stabbed the deceased, the accused person stabbed PW1 who attempted to arrest him. This Court finds that such evidence manifests malice aforethought. It is also in evidence that, about 45 minutes before the incident, the accused person and the deceased had a fight. The cause of fight is depicted in Exhibit PE3 that, the deceased was demanding the money which the accused owed him. On the other hand, the accused adduced that, the fight was over the beer which he bought to the bar attendant one Bhoke. Whatever the cause, it is not disputed that the fight was resolved by PW1. Thus, the accused and the deceased stopped the fight and the accused left. However, he returned about 45 15 minutes later armed with panga and arrows and started to stab the deceased. In that regard, I am of the view that, there was no fight when the accused person stabbed the deceased person for the Court to hold that, there was no malice aforethought. Furthermore, having considered that the accused left the bar after the fight and returned after 45 minutes armed with weapons, I am of the firm opinion that, he had time to cool down his temper. Thus, it cannot be stated that, the accused stabbed the deceased on heat of passion for the Court to hold that, there was provocation. The last issue for consideration is whether there are contradictions in the case at hand and whether the same should end in favour of the accused person. Generally, it is not possible for each witness to state exactly the same thing. The court is therefore duty bound to consider the circumstances of the case and determine whether the identified contradictions go to the root of the case or affect the credibility of the witness. This stance was taken in Crisant John vs R, Criminal (supra) when the Court of Appeal held: "We wish to state the general view that contradiction by any particular witness or among witness cannot be escaped or avoided in any particular case. However, in considering the nature, number and impact of the contradictions, it must always be remembered that witnesses do not always make a blow by blow mental recording of an incident. As such, contradictions should not be evaluated without placing them in their proper context in an endeavor to determine their gravity, meaning whether or not they go to the root or rather corrode the credibility of a party's case." 16 The Court of Appeal went on to cite its decision in Dikson Elia Nsamba Shapwata and Another vs R, Criminal Appeal No. 92 of 2007, CAT (unreported) where it was said that: In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statement. The court has to decide whether the discrepancies and contradictions are only minor or whether they go to the root of the matter. In the present case, there is allegation that, PW1 and Exhibit PE3 contradicted each other on the reasons, PE3 shows that PW1 was inside the bar drinking local brew while PW1 stated that he was outside the local bar to mediate the accused and the deceased. I think this fact should not detain us, reading from Exhibit PE3, it is clear that PW1 was outside when the accused and the deceased and the accused person were fighting. The second allegation is to the effect that, PW1 deposed to have heard the sound of panga being inflicted to the deceased while, PE3 does state about the sound of panga. As stated herein, Julius Keng'ombe was at the scene of crime. He stated how he saw the accused person stabbing the deceased. On the other side, PW1 was nearby the crime scene. That is why he deposed about the sound of panga. The fact that Julius Keng'ombe did not record something on the sound of panga does not go to the root of the case that the deceased was stabbed by the accused person. The last contradiction is in relation to PWl's evidence that he got hold ^aiimkumbatia) the accused when he was running from the bar while Exhibit PE3 shows that PW1 arrested the accused. In his evidence, PW1 adduced that, he got hold of the accused person in order to arrest the accused. PE3 does not state how PW1 was arrested. It is my considered opinion that both PW1 and Exhibit PE3 show that, PW1 attempted to arrest the accused and that he was stabbed. 17 In view of what I have endeavored to explain, I find that the contradictions complained are minor. They do not go to the root of the case for this Court to hold that, there are doubts in the prosecution case. In the end, I am in agreement with the lady and gentleman assessors who opined that, the accused person is guilty of offence of murder. The prosecution proved its case beyond all reasonable doubts. I therefore, find the accused person, Kegokora Jackson @ Kegokora guilty of offence of murder and hereby convict him of that offence under sections 196 and 197 of the Penal Code [Cap. 16 R.E. 2019]. DATED at TARIME this 11th December, 2020. r- k i //— E.S. Kisanya JUDGE Court: Judgment delivered in open Court this 11th December, 2020 in the presence of the accused person, Mr. Paul Obwana, learned counsel for the accused and Mr. Franck Nchanila, learned State Attorney for the Republic. Assessors and B/C Mariam- RMA present. E.S. Kisanya JUDGE 11/12/2020 18 SENTENCE Having heard the submissions by both parties on the appropriate sentence, and in terms of section 197 of the Penal Code (supra) and section 322 of the Criminal Procedure Act (supra), Kegokora Jackson @ Kegokora is hereby sentenced to suffer death by hanging. E.S. Kisanya JUDGE 11/12/2020 COURT: (l)The right of appeal to the Court of Appeal explained. It should be filed within thirty (30) days from the date of this judgment. (l)Assessors thanked and discharged. E.S. Kisanya JUDGE 11/12/2020 19