republic vs fred mathayo nyagawa and others 2021 tzhc 9209 11 december 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT NJOMBE ORIGINAL JURISDICTION (IRINGA REGISTRY) CRIMINAL SESSION CASE NO. 34 OF 2017 THE REPUBLIC VERSUS FRED MATHAYO NYAGAWA........................ 1st ACCUSED ISAYA MGIMBA............................................. 2nd ACCUSED JAMES MTELEKE......................................... 3rd ACCUSED MATHAYO NYAGAWA................................... 4th ACCUSED 28/10 & 12/11/2021 JUDGMENT. MATOGOLO, J. The accused persons in this case Fred s/o Mathayo Nyagawa, Isaya s/o Mgimba, James s/o Mteleke and Mathayo s/o Nyagawa are jointly charged with the offence of murder contrary to section 196 of the Penal Code, Cap. 16 R.E. 2002.lt was alleged that on 17th day December, 2015 at Mapogolo Village within the District and Region of Njombe, the accused persons did murder one Mchape s/o Mkosa. The accused persons pleaded Page 1 of 35 not guilty when the charge was read to them. During the trial, Mr. Matiku Nyangero, Nura Manja and Andrew Mandwa all learned State Attorneys appeared for the Republic. The accused persons were represented by Mr, Frank Ngafumika, Happy Homo and Khadija Mwambungu,for 1st and 2nd accused respectively, while Tunsume Angumbwike and Mussa Mhagama represented the 3rd and 4th accused respectively. In order to prove the charge against the accused persons, the prosecution brought a total of seven witnesses namely Inspector Kelvin William Lubera (PW.l), G.201 D/Constable James (PW.2), Inspector Raphael Bernad Mlangwa (PW3), Yona Mkosa (PW.4), D.4805 Station Sergent Fundis Mpululu (PW.5), D. 5783 Detective Sargent Albert (PW.6) and Inspector Gregory (PW.7). They also tendered in court eight documentary exhibits and one physical exhibit namely, Sketch map of the scene of crime (exhibit P.l), Report on postmortem examination of deceased body (exhibit P.2), Certificate of seizure (exhibit P.3), the Motor cycle type Star black in colour with reg. No. MC. 865 AZS (exhibit P.4), 1st accused cautioned statement (exhibit P.5), Identification Parade Register (exhibit P.6), Vehicle inspection report (exhibit, P.7), Motor vehicle Registration card (exhibit P.8) and cautioned statement of second accused Isaya Mgimba (exhibit.9). The evidence of Insp. Kelvin William Lubera is to the effect that he is the head of intelligence Njombe district. In 2016 he was the assistant OCCID Makambako. On 14/03/2016 he was at the police station Makambako interviewing a suspect James Mteleke in connection with the Page 2 of 35 murder of Mchape. In that interview, the said James Mteleke admitted to have killed the deceased being assisted by others and took the motorcycle. They asked as to where the motorcycle was. He told them that he sold it at Mbeya. He led them to where he sold it. PW.l was together with two police officers Albert, Clemence and the accused person. Upon arrival at Mbeya he told them that the motor cycle was at Mshewe village, beyond Mbalizi. But accused told them that there was a broker whom he mentioned to be Lucas. The accused knew where the motorcycle was. He led them to the place at Mshewe village where they also found the broker and conducted a search in the presence of the broker. They searched the house of Abraham Kindie who was also present, they found the motorcycle in question. They seized it and filled seizure certificate in which the motorcycle was listed. PW.l said is the one who filled the certificate of seizure. The person who witnessed the search signed it also the person who was in possession of the motorcycle signed and the police officers he was together with them. The type of motorcycle was STAR MC 865AZS black in colour with white plate number. PW.l said they left together with Abraham to Makambako so that his statement would be recorded, he said they arrived at Makambako at 7:00am. At the time they filled the seizure certificate it was at 2:00 hours on 15/03/2016. PW.l identified in court the 3rd accused whom he said led them to Mshewe village where the motorcycle was recovered. He also identified in court the certificate of seizure which was admitted as exhibit P.3 PW. 1 also tendered in court the motorcycle they seized at Mshewe which was admitted as exhibit P4. PW.l stated further that the type of the Page 3 of 35 motorcycle is Star. In the certificate of seizure it is written SUNLG with registration No. MC 865 AZS. The difference of type of the motorcycle is just an error in recording, but the engine number and the chassis number in the said motorcycle are the same as recorded in the certificate of seizure. During cross-examination by Mr. Mhagama learned advocate, PW.l replied that the Vehicle Inspection report PF 93 for MC 865 AZS, is the same motorcycle he tendered in court. The owner indicated in the report is Chuma S. Sanga of Box 220 Dar es Salaam. He said it is possible Mchape Mkosa did not own a motorcycle. He said the certificate of seizure exhibit P3 and the vehicle inspection report show that deceased was not the owner of the motor vehicle. Between exhibit P3 and exhibit P4 there is no any document showing that deceased owned the motor cycle in question. In re-examination PW.l said the difference of the motor cycle and what recorded in exhibit P3 is the type of the motorcycle (name). In exhibit P3 it is recorded SUNLG but in exhibit P4 it is STAR. What differentiate one motorcycle to another are chassis number and engine number. The chassis number and engine number recorded in exhibit P3 are the same found in exhibit P4. In his evidence PW2 G. 201 D/C James, told this court that on 20/01/2016 he was at Makambako police station. He was assigned to record statement of Fred Mathayo Nyagawa. At that time the accused was in the police lock up Makambako. He took him from the lock up and went with him to the office of criminal investigation. He was in good health condition. He started to record his statement at 6:30pm and completed at 8:05pm. Fred Page 4 of 35 Mathayo Nyagawa was arrested on 20/01/2016 at 05:00pm. After recording his statement he asked him if he can read, he told him that he does not know to read. PW.2 therefore read to him what he recorded. The accused admitted the statement to be correct. He signed at the relevant parts. PW.2 also signed where he was supposed to sign and then sent the accused back to the police lock up. PW.2 identified the 1st accused in the dock. He also identified the statement of 1st accused he recorded. He tendered it in court as evidence. The same was admitted as exhibit P5. In that statement 1st accused explained the grudges between them with deceased on the land dispute and accusation that deceased was bewitching them and threatened to kill them. It is when they resorted to hire persons to kill him before he has harmed them. 1st accused in his statement denied to have physically killed the deceased but named the person he hired to be Isaya Mgimba whom he paid Tshs. 3,000,000/= for the job the money which were issued by his father, 4th accused. On his part PW3 Insp. Raphael Bemad Mlangwa, told this court that on 07/03/2016 at 03:30pm, he was at the police station Makambako. He was assigned by the OCCID SP Yesaya Sudi to conduct an identification parade. He was told that there was a suspect for murder called James Mteleke. After such direction he went to see the parade which was prepared by D/C Francis. After arrive there he found ten participants, he introduced himself to them. He called James Mteleke infront of all participants who was among the ten participants. He came forward. He told him that he was the subject of the identification parade. He was to be identified and told him to Page 5 of 35 be free and to choose a position, and in case he wanted to change clothes or put on a hat he can do so. Accused told PW.3 that he will remain in those clothes. He chose the position and stood third position in the line from right. PW.3 then ordered for a witness to be brought. The witness went there who introduced himself as Yona Mkosa. He was brought by D/C Miriam. PW.3 also introduced himself. PW.3 told him that he was called there for purpose of identifying the person who was together with his young brother for the last time whom he did not know his name as he stated in his statement. He told him to go through the line of ten participants in front and behind. And if he identified that person has to touch him on his shoulder. While telling him so they were in front of the parade of ten participants. PW.3 was talking loudly even participants heard what he was telling him. The witness passed through the line of participants starting from the right infront and behind, upon reach to 3rd accused he torched his shoulder. After James Mteleke was identified PW.3 called the witness infront and asked him why he identified James Mteleke among ten participants. He answered that a day before he received information of the death of his young brother, he saw him together with his young brother. The witness left from the identification parade area. He was taken by D/CPL Hamis. PW.3 said he called James Mteleke in front and asked him if he has any objection to the procedure taken in the identification parade. He replied that he was satisfied with the procedure and had no objection. PW.3 took an identification parade register and each participant signed against his name he also signed. Among them he said were James Mteleke and James Makweta but he could not remember names of others. He also called Yona to sign as a witness and participant in the Page 6 of 35 parade. PW.3 identified James Mteleke in the dock. PW.3 stated further that the ten persons who were participants to the parade were of equal size and black complexion. PW.3 tendered in court the identification parade register which was admitted as exhibit P.6. PW.3 read its contents in court. In his statement he narrated the way he was approached by the 1st accused in May 2015, and told him that there is a person has bewitched his father who has paralyzed. So he wanted a person to kill that person. Isaya Mgimba told him that he needed to think over. After a month 1st accused still require him to do the job and gave him Tshs. 300,000/= for two instalments 200,000/= and 100,000/=. After another month 1st accused collected him in a m/cycle and sent him to Ikwavila village and shown him the person to be killed who was tilling in the swamp (vinyunguni). Isaya Mgimba told 1st accused that the way the saw the deceased is a humble person. But 1st accused described him as a dangerous person who caused his father to paralyze. Isaya Mgimba demanded to see his father but 1st accused refused. Isaya Mgimba left after a short period 1st accused followed him, he appeared to have wounds which he said he sustained from motor accident after be bewitched by the deceased so he gave him deceased phone number which ended with number 55. He then traced some people James s/o?, his friend and Yubina d/o?, an attendant at a grocery known as Bagamoyo at Makambako. They convened at Midtown Hotel, he gave them the phone number, Yubina was communicating with him as a passenger who was taking her from Ikwavila sending her to Uhenga village for sunflower seeds business. She hired him three times, on 16.12. 2015 they met with James s/o? and agreed that Yubina has to call to the deceased and inform him that Page 7 of 35 her servant would go there so that he could send him where he used to take Yubina at Uhenga. James went there. At 9:40 pm he called to Isaya Mgimba informing him that he had accomplished the mission and he was on his way to Mbeya using the deceased m/cycle. After four days 1st accused deposited Tshs. 2,000,000/= in his mobile phone through M-pesa transaction. On 20/12/2015 he travelled to Mbeya and paid James Tshs. 1,800,000/= less 200,000/= because James had the m/cycle which he could sell and give him certain amount. Isaya Mgimba disclosed that James was living at Uwanja wa ndege Mbeya doing charcoal business. PW4, Yona Mkosa, in his evidence told this court that he is living at Ikwavila village a peasant and after shamba work he used to do "bodaboda" business. On 16/12/2015 at 11:00 am he was at his farm, while there his relative Mchape Mkosa who is his brother went there and told him that he has received a phone call requiring him to go to take a passenger at Ikwavila junction. He was also a peasant but he was also doing business of ferrying people on the "bodaboda". They left back home together. On the way he asked to go to change oil in his "bodaboda". From home they went up to Kijiweni to refill fuel. Then they proceeded to Kibao cha Ikwavila to collect a passenger. Upon arriving there they found one person who asked them "umefika?" He was a man not tall or fat, was of middle size. He was with black complexion. It was the first time for PW.4 to see that person, it was at 05:00pm. He told them that he was instructed by his sister to take Mchape Mkosa so that he can send him at Ipwani village. They left, leaving PW.4 there who also went to Soliwaya. On 17/12/2015 at about 11:00am Page 8 of 35 his brother Ellibu Mkosa went to him and told him that his young brother Mchape was killed. They left to the scene of crime at Mapogolo village in the forest between Mapogolo village and Ipwani village and found Mchape killed. PW.4 witnessed his young brother dead. He was cut with a sharp object. The police called the deceased relatives and asked if they suspected any person. PW.4 told them that he suspected the person who left with the deceased. They asked him if he knows him, he told them that he does not know him. PW.4 stated further that he knows the motorcycle deceased was riding. It has registration No. T.267 CXG Star. His young brother purchased the motorcycle from Mgobasa of Makambako who owns a shop. He also participated in buying the same. They were given registration card, contract and a receipt. On 07/03/2016, PW.4 was called at Makambako police station and told to send the registration card, contract and a receipt in relation to the motorcycle Star of the deceased. He sent those properties. There was an identification parade in which he was called to identify the person who was with his young brother at Kibaoni. He was told to pass through the lined persons. He passed two times and identified him by touching him. He signed on a paper on which he identified his signature. He said the police showed him the motorcycle but he found different registration number. The motorcycle he was shown at the police is Star with black colour. The number he was shown is different to its original number. But he could not remember that number. PW.4 was shown the motorcycle he was shown at the police station which he identified it by its black colour and its type Star. Page 9 of 35 PW4 also identified the third accused in the dock who sat second from the left hand side among four people. PW5 D. 4805 S/Sgt. Fundis Mpululu, told this court that he was the police officer in Road traffic department as a vehicle inspector, he retired in 2017. His last working station was Makambako. On 17/03/2016 he was at Makambako police station vehicle inspection department. The OCCID assigned him to make investigation on the motor cycle which was at the police station, he was shown that motor cycle with Registration Number MC. 865 AZS Type Star black in colour. After being shown the motorcycle he entered in the system of TRA of registration of motor vehicles using chassis number of the motorcycles. He said his inspection involved an appearance of the motorcycle, its registration number, engine number and chassis number. The first investigation he did is to enter into the system for registration of motorcycle, the second investigation was physical by inspecting the motorcycle itself. He inspected plate number, chassis number and engine number, and appearance of the motorcycle. In the system he was looking if the registration number available at the plate is correct or not. After inspection he prepared vehicle inspection report which he tendered in court, the same was admitted as exhibit P.7. PW5 said in the motorcycle he inspected has registration number MC. 865 AZS, type Star, the owner was Juma S. Sanga of Dar es Salaam, the driver is Ibrahim Lucas Kindie of Mbeya. He recorded chassis No. LTZ PCKLNBE6100757 Engine No 162 FMJ-EOO 2509. Colour black, engine Page 10 of 35 capacity 150CC. After inspection, the left side mirror grass was missing. It has no insurance motor vehicle licence sticker were missing. In the system the owner of the registered motorcycle with that number was Juma S. Sanga. In the system the chassis number was of the motorcycle T. 267 CXG the owner appeared to Ashery Mgobasa. In his inspection he said he discovered that the plate number which was fixed on the motorcycle MC 865 AZS was not of that motorcycle. The owner of the motorcycle with that Registration Number was Asheri Mgobasa. PW.5 identified the motor cycle he inspected on 17/5/2016 at Makambako. Its chassis No. is LTC PC KLN 2E6100757, its registration number ought to be T267CXG and the owner being Asheri Mgobasa. He said although the plate number which was affixed on the motorcycle was not its registration Number. But he said what differentiates one motorcycle to another is the chassis number which cannot be changed as plate number and engine can be replaced. While being cross-examined by Mr. Ngafumika PW.5 said his inspection was in respect of MC865 property of Juma S. Sanga. He inspected the motorcycle of Asheri Mgobasa. The engine number of this motor cycle is present. It is on the engine. PW.5 said he has never seen the motor cycle with Registration Number MC 865 AZS. The chassis number is on the frame of the motorcycle which is made by the manufacturer. It is not possible for the same motorcycle to have two chassis number. Page 11 of 35 PW6 D. 5743 D/Sgt. Albert, a retired police officer he told this court that, he recorded statement of 3rd accused James Mteleke and also recorded statement of a witness Ibrahim Kindie. He was also involved in the search of a motorcycle which was recovered at Mbeya and seized. On 01/03/2016, while at Makambako police station, he was assigned to record statement of James Mteleke. At that time he was in the police lock up at Makambako police station. PW.6 went to the lock up and took him to the criminal investigation office. He introduced himself to the accused and told him to introduce himself. He informed him that he was suspected for murder, the deceased being Mchape Mkosa. He informed him his legal right that he was not compelled to give statement but what he will state will be recorded and may be used as evidence against him. He said he also informed him of his rights to call a relative, friend or his advocate while his statement being recorded. Accused opted to give statement while alone. PW.6 recorded his statement from 8:00 pm and competed at 15:00hours. PW.6 also said he was assigned to record another statement of James Mteleke on 15.3/2016 which he prayed to tender in court the cautioned statement of James Mteleke recorded on 15/3/2016, but the prayer was objected for reason that the same was not voluntarily made. That objection was sustained. PW.6 said he also recorded statement of Ibrahim Kindie from whom the m/cycle was found and seized at Mbeya. His attempt to tender the statement of the said Ibrahim Kindie was objected by the defence on the ground that there was no sufficient explanation as to why he could not attend In court and give evidence. That objection was sustained Page 12 of 35 and the prosecution required to bring the witness in court to testify. On his part PW.7 Inspector Gregory told this court that he is a police officer stationed at Makambako police station in investigation department. At a certain time he was investigating this case. On 07/3/2016, he received documents relating to the motorcycle involved in this case. He received them from Yona Mkosa the deceased brother. The documents include Motor vehicle registration card in respect of the motor cycle make Star LG with registration No. T.267 CXG, Chasis NO.LTZPCKLN2E6100757 and engine NO.162FMJE0002509 the proprietor Asheri being Mgobasa of Makambako, Sale agreement (Mkataba wa kuuza pikipiki) of the said motorcycle and a receipt issued to Mchape Chumaulaya Mkosa for the purchase of the motor cycle. PW.7 tendered in court the three documents which were admitted as exhibit P.8 collectively. PW.7 also told this court that on 22/01/2016 he recorded cautioned statement of the second accused Isaya Mgimba which he tendered in court, the same was admitted as exhibit P.9. The accused persons gave their defence under oath. In their defence all accused persons denied to have committed the charged offence nor involve themselves in any way in that committed offence. The 1st accused Fred Mathayo Nyagawa in his defence stated that he understands he is before this court charged with murdering Mchape Mkosa. But he said the allegations are not correct since he know nothing. He said he does not know his co-accused except 4th accused who is his father. He stated further that he heard all seven prosecution witnesses but none of them has talked about him in relation to the offence he is facing. They also tendered in court nine Page 13 of 35 exhibits but no any connects him with the charged offence. He said he does not know those exhibits and do not belong to him. He said he has never been to school. Regarding the caution statement recorded on 20/01/2016 he said is not his statement. He was arrested on 20/01/2016 and sent to Makambako police station. He was sent to the room they said interview room, where he found three police officers. On the table there were written papers to which he was told to sign but refused. He was severely beaten up and told that what they wanted is for him to sign the written papers. One police officer brought a tin (pad), his thumb was soaked in the ink on the tin which was affixed on the written papers. But he did not read the papers. He said apart from the cautioned statement (exhibit P.5), there is no any evidence brought in court corroborate what is written in the cautioned statement. He prayed to this court not to consider that cautioned statement as it is not his and see that he is not guilty of murder and acquit him. While being examined by other defence counsel 1st accused said he has never convened a meeting of three persons, himself his father and Samwel Mdapo to plan to kill the deceased. He denied too to have received Tshs. 3,000,000/= to pay the killer. But he also denied to know that Mchape Mkosa is a wizard and that he bewitched his father. The second accused, Isaya Mgimba stated that he knows is charged with murder but he denied to have committed the same. He said there is no evidence showing that they saw him killing Mchape Mkosa, nor there is evidence they saw him planning to kill the deceased. He said apart from 3rd accused the rest of the accused persons are unknown to him. And he came Page 14 of 35 to know 3rd accused through motor cycle business as he gave him the motor cycle to sell it for him as a broker. Its type is T better. Regarding the caution statement, 2nd accused said he has never given statement at the police station and has never received money from Fred Mathayo Nyagawa through M-pesa as there is no any M-pesa money transaction tendered in court to prove that. He said the allegations against him are not correct and prayed to this court to dismiss, them and acquit him. The 3rd accused James Mteleke told this court that he does not admit the allegation of murder levelled against him. He said he was arrested on 24/2/2016 at Mbeya for the offence of fighting with Mustapha Malekela and sent to Mbeya central police station. He was detained there for three days without being interviewed. When the OCS went to the lock up, 3rd accused told him to take him to court. But he was told that his case is of Makambako. On 29/2/2016, the police from Makambako went to collect him. Upon arriving at Makambako police station he was ordered to take off his clothes. His legs and hands were cuffed and severely beaten up. The following day on 01/3/2016 he was sent to the office of the OCCID who asked him if he had any business with Isaya Mgimba, he agreed to have sold a motor cycle type T better for him. He said he was taken back to the lock up. At 7:00pm he was taken from the lock up as sent to the OCCID and asked if he know the person who killed Mchape Mkosa but he denied. He was asked if he has a person suspecting him, he denied too as Mchape Mkosa was not known to him. He said the OCCID called the police officers James, Albert and Amos, he ordered them to have his hands and legs Page 15 of 35 cuffed, they severely beaten and tortured him threatening to kill him. His condition became worse. The following day he complained to the OCS who ordered the police officer to send him for treatment after being given PF.3 which he said he tendered in court during trial within trial. He said the same day his caution statement was recorded in which he explained the way he met with Isaya Mgimba for motor cycle business. He said in exhibit P.5 and exhibit P.9 there is nowhere his name James Mteleke was mentioned. The person with name of James which was mentioned is unknown to him. He denied to have led the police to Mshewe village Mbeya where the motor cycle was seized from Ibrahim Kindie. He said the broker and the person who was found with the motor cycle were neither charged nor brought to testify. But the witness said the seized motor cycle is SUNLG which appears in the certificate of seizure but the deceased motor cycle is said to be STAR. But the motor cycle he sold for Isaya Mgimba was found at Rujewa after he has sent the police there. He said the prosecution evidence in relation to the motor cycle involved in this case is fake evidence. He said Raphael Mlangwa said that he conducted identification parade where he was identified but he denied to have been an identification parade on 7/3/2016 and himself identified by Yona Mkosa as on that date he was at the police station very sick. He said, is a resident of Mbeya and has never been to Ikwavila village, he did not know the motor cycle sale transaction between Asheri and Mchape Mkosa. He prayed to this court to dismiss the charge and acquit him. In cross-examination by Mr. Andrew Mandwa State Attorney, 3rd accused said he has forgotten the registration number of the Page 16 of 35 T-better motor cycle which he sold to Rujewa. and that he has no any proof that he was given that motor cycle by Isaya Mgimba. He admitted that he is residing at Mbeya but at Madini Street and that he was doing charcoal business and his full name is James Naftal Mteleke. The 4th accused person Mathayo Nyagawa told this court that he resides at Ikwavila Village Wanging'ombe district. He was born there. He knew Mchape Mkosa who was a resident of Ikwavila village but they have no any relationship. He denied to have fallen sick but he was involved in a motor accident while at Makambako in 2014. He sustained fracture on both his hand and leg. He was sent to Mbeya for treatment where he stayed for three months. He denied to have associated that accident with witchcraft. He returned from Mbeya in 2015 on the date he could not remember. Mchape Mkosa went to see and consoled him. He denied to have a land dispute with Mchape Mkosa even their lands are not adjoined. He was puzzled to hear that he has land dispute with Mchape Mkosa. He said he is cultivating maize and Irish potatoes and his estimated annual income is between one and one and a half million. He said he has 15 children from three wives. Four of his children are secondary school students. He said in exhibit P.5 it was recorded that he gave Fred 3,000,000/= for hiring a person to kill Mchape Mkosa but he said that is not true as his income is low. But also at that time he was sick and stayed at Mbeya for a long time and he was repaying a loan for purchasing the motorcycle which he is still repaying todate. He said he was a person to be supported. His son Fred denied to have received money from him for hiring a person to kill Mchape Page 17 of 35 Mkosa. He stated further that Fred is an adult with his family he has never given him money. He denied too to have convened a meeting for planning to Kill Mchape Mkosa, he said he was puzzled to hear that now. He said he does not know Samwel Mdapo he used to hear about him although he lives at Ikwavila village, he last met with him at the police station where he was also a suspect in this case. He said he was just implicated in this case but he know nothing about this incident and prayed to this court to acquit him. In this case there is no witness who told this court that he saw the accused persons while killing the deceased. What we have is circumstantial evidence and cautioned statement of 1st and 2nd accused persons. Circumstantial evidence is admissible and the court can act on it to convict if is corroborated with other independent evidence or even where it is not corroborated if the court is satisfied that, it leads to irresistible conclusion that it is the accused persons who killed and not any other persons. Understandably a person charged with a criminal offence to be convicted, the prosecution has to prove that offence beyond reasonable doubt. The burden of proof lies on the prosecution throughout, that burden cannot shift to the accused at any point in time. This was clearly stated by the Court of Appeal in the case of Mohamed Said Matula v. Republic [1995] TLR 3. What the accused needs to do is just to raise reasonable doubt to the prosecution case. The accused cannot be convicted on the weakness of his defence but he can be convicted only on the strength of the prosecution evidence. Even where it happens that the accused has lied in his defence, that alone is not a reason for him to be convicted. But lies of the accused if Page 18 of 35 proved corroborate or strengthen the prosecution case as it was held in the case of Lucas Felix Kisinyila v. The Republic, Criminal Appeal No 129 of 2002, CAT (unreported). As pointed out above, the available prosecution evidence in this case is circumstantial evidence and confessional statements. In his cautioned statement 1st accused implicated himself but also implicated others. There is also cautioned statement by the second accused who, like 1st accused he implicated himself and other accused persons, the 1st and 3"1 accused persons in particular. 1st accused on his part he also mentioned his father Mathayo Nyagawa, Isaya Mgimba and Samwel Mdapo. In his statement 1st accused explained the grudges that existed between the deceased and their family after he has grabbed part of their land and erected thereon cattle kraal. But they were also accusing him as a wizard who was bewitching them especially their father who had paralyzed. He mentioned his father and Samwel Mdapo as persons they met to discuss how to kill them. However that statement was not supported by his father, 4th accused who in his defence he denied to have any land dispute with the deceased nor to sit together with Samwel Mdapo whom he said was also a suspect in this case. On his part second accused named 1st accused to be the person who approached him for purpose of killing the deceased and to be the one who paid him for that job. But he also mentioned 3rd accused whom he hired to execute the killing and who killed the deceased and left with the deceased motor vehicle to Mbeya where he sold it. The circumstantial evidence involved in this case is the act of 3rd accused taking the motor cycle after the deceased was killed and went to sell it at Mbeya. Another piece of evidence is for the third accused to lead the police to Page 19 of 35 Mshewe village Mbeya where the deceased motor cycle was recovered. This is according to the evidence of PW.6. However according to the certificate of seizure (exhibit P.3), the type of the motor cycle and its registration number are different as the motor cycle listed is SUNLG with registration No. MC. 865.AZS but the engine number and chassis number are the same to the motor cycle subject of this case. The 3rd accused was also identified by PW.4 to be the person seen together with the deceased before he met his death. Looking at the prosecution evidence in general, the evidence is of the following categories; confessional statements of 1st and 2nd accused persons who implicated other accused persons, discovery of the deceased motorcycle at Mbeya where it was sold and 3rd accused being the last person to be seen in the company of the deceased. Having identified such evidence what follows is to analyze such evidence in relation to the committed offence and look at its strength and see if capable of been acted upon. Starting with confessional statements above mentioned, I have explained the way the two accused persons in their cautioned statements the way they implicated themselves and implicated others. The position of the law is that evidence of an accused person implicating himself and another is admissible and can be acted upon to convict. This is provided for under section 33 of the Evidence Act, CAP.6 R.E. 2019. The same states:- "33(1) Where two or more persons are being tried Jointly for the same offence or for different offences arising out of die same transaction, and a confession of the offence or offences Page 20 of 35 charged made by one of those persons affecting himself and some other of those persons is proved, the court may take that confession into consideration against other person. (2) Notwithstanding subsection (1), a conviction of an accused person shall not be based solely on a confession by a co-accused". See also the case of Pascal Kitigwa vs. Republic[1994] TLR 65 In their cautioned statements, 1st accused alleged that the same was obtained through torture. He thus retracted the statement. The 2nd accused on his part alleged that the statement was taken in violation of the provisions of the law. In both incidents the objections were overruled. As said, the 1st accused retracted his confession. Now what is the value of repudiated or retracted confession. Normally repudiated or retracted confession is admissible and the court may act on it to convict provided that it is corroborated by another independent evidence. But even without corroboration if the court is satisfied that the confession is true. This principle was established in the famous case of Tuwamoi v. Uganda (1967) EA 84 in which it was held: 'J4 trial court should accept any confession which has been retracted or repudiated, or both retracted and repudiated with caution and must before founding a conviction on such a confession be fully satisfied in all the circumstances of the case that the confession is true. The same standard ofproof is required in all cases, and usually a court will only act on the confession if corroborated in some materia! Page 21 of 35 particular by independent evidence accepted by the court But corroboration is not necessary in law and die court may act on a confession atone if it is satisfied after considering all the material points and surrounding circumstances that the confession cannot but be true". This position was followed in many cases in our jurisdiction including :he case of Hemed Abdallah v. Republic [1995] TLR117. Looking at the confessional statements of the two accused persons, 1st accused for instance in his cautioned statement explained the motive behind killing the deceased, it is because they had land dispute after the deceased had encroached part of their land and erected cattle kraal thereon. But they also suspected him to be a wizard who was bewitching them. It is that is why he initiated a plan to eliminate him so that he should not harm them further. In that statement, 1st accused also named his father, 4th accused and one Samwel Mdapo to have convened a meeting to plan to kill the deceased. Although Samwel Mdapo was also a suspect in this case but I believe he was discharged after thorough investigations. The 4th accused is still held in this case. But the only evidence connecting him is the 1st accused cautioned statement in which, apart from the allegation of participating at meeting to plan the murder like Samwel Mdapo, he was also named to have issued Tshs. 3,000,000/=as payment to the hired person(s), although in his defence he refuted the allegation and there is no any other evidence connecting him with the charged offence. However the 1st accused cautioned statement was corroborated by that of the 2nd accused in which Page 22 of 35 he explained the way he was approached by the 1st accused requesting to assist him to kill the deceased and was paid by the 1st accused to do the job. However 2nd accused in his cautioned statement appears to exonerate the 4th accused whom was reported to 2nd accused as sick who was bewitched by the deceased to the extent that he had paralyzed. 2nd accused demanded to see him but 1st accused refused. Looking at the two statements of 1st accused and that of 2nd accused, exhibit P.5 and P.9 respectively they collate and show common intention towards the death of Mchape Mkosa. In his cautioned statement 2nd accused has also implicated the 3rd accused to be the real actor of the killing after been hired by 2nd accused as 2nd accused stated he was feared to kill, he therefore traced 3rd accused whom in his statement he was referred by a single name of James to assist him. He stated they met at Midtown together with one lady mentioned by a single name of Yubina a grocery attendant. The three discussed and agreed for 2nd accused to supply them with the deceased mobile phone number. They communicated with him pretending to be doing maize business and for three days before he met his death Yubina was hiring him to send her to Uhenga village. On the date of incident she called to him informing him that his servant will be going there and asked him to send him to where he was sending her. That was arranged while the three, 2nd accused, 3rd accused and Yubita were together at Makambako. Thereafter 3rd accused left to the scene and killed the deceased. Looking at this statement carefully, although 3rd accused was referred to by a single name of James but there are pieces of evidence in their totality lead to the conclusion the James referred is the 3rd accused. 3rd accused resides at Page 23 of 35 Mbeya where he was arrested. 2nd accused stated in his statement that after he has killed the deceased he proceeded to Mbeya using deceased motor cycle. That motor cycle was recovered at Mshewe village Mbeya region after being seized from one Ibrahim Kindle. This is according to PW.l, PW.6 and certificate of seizure, exhibit P.3. Both PW.l and PW.6 told this court that they left with the 3rd accused from Makambako police station who led them to Mshewe village where the motor cycle was recovered following a search in the house of Ibrahim Kindie. PW.l said the motorcycle they seized is SUNLG with registration No MC. 865 AZS with engine number 162FMJE0002509 and chassis numberLTZPCKLN2E6100757 black in colour. There has been controversy on the type of the motorcycle seized and its registration number. However PW.4 the deceased brother, told this court that on 7/3/2017 he was called at Makambako police station and told to send there registration card of the motor cycle in question along with contract for purchasing the said motor cycle and receipt in respect of the motorcycle Star type. However after been shown the motorcycle he identified its type and colour but had different registration number. But PW.5 in his evidence talked about difference of the registration No. of the motor cycle subject in this case which he inspected as vehicle inspector. He said his physical inspection revealed that it has registration No. MC. 865 AZS but in TRA system its real registration No. is T.267 CXG and the owner was Ashery Mgobasa. He concluded that the registration No. was changed. PW.7 who tendered in court the registration card of the motor cycle, sale agreement and a receipt, exhibit P8 collectively said although there are different registration number in the certificate of seizure to that in the Page 24 of 35 registration card, what show ownership is the chassis number which cannot be changed as engine can be replaced and registration card changed. Principally I am in agreement with what PW.4, PW.5 and PW.7 on what they told the court, in particular PW.5 and PW.7 that engine can be replaced for various reasons although that entails the owner to notify TRA on that change so that the changes can be entered in the system. But for one who possesses it unlawfully we cannot expect for him to disclose that. As to why there is such difference, the difference indicated in the certificate of seizure that must happened due to the fact that the particulars of the motor cycle was recorded the way it was found. At the place the motor cycle was found the police had no mechanism to detect the real number of registration that is why the number which was found fixed on the motor cycle is the one which was recorded. For difference on the type of the motor cycle that one could not be expected. The police officer who searched and seized the same recorded its type to be SUNLG, but in his testimony he said it was Star with black colour. In his evidence, PW.l said the difference of the type of the motor cycle recorded in the certificate of seizure was just an error in recording. In his defence the third accused talked about the motor cycle he sold at Ubaruku Rujewa District but said he know nothing about police officers who went to Mshewe village where the motor cycle in question was seized. He denied to have led the police there. Although 3rd accused denied to know anything in connection with the motor cycle seized at Mshewe Mbeya but he admits that is a resident of Uwanja wa ndege madini street Mbeya and his business is selling charcoal. He admitted too to know each other with the 2nd accused. While answering questions put to him by Page 25 of 35 assessors, 3rd accused said they know each other with the 2nd accused in connection with the motor cycle he sold at Rujewa, to that time they had only a week since they know each other. Although 3rd accused said 2nd accused has never been to his residence at Mbeya but he trusted him as a broker. Under normal circumstances if the two were not well known to each other, it would be difficult for 2nd accused to trust him that much to the extent of giving him the motor cycle and leave with it outside the region without knowing where he resides. The two must knew each other for a long time. With the available evidence, there is no doubt that the 3rd is the one who led the police to where the motor cycle was recovered and seized. And according to exhibit P.9, the 3rd accused is the one who sent it at Mshewe village. The act of 3rd accused leading the police to where the motorcycle was found and seized cannot be a coincidence. This in law is oral confession and relevant evidence in term of section 3(1) of the Evidence Act. In the case of Richard s/o Mgaya @ Sikubali Mgaya v. The Republic, Criminal Appeal No 335of 2008, CAT (unreported), the Court at page 13 has this to say:- ”We must admit rightly away that we have found this reasoning paralylsingly convincing. AH things remaining equal, we shall gladly adopt it In the determination of the appeal. We have found the oral confessions of the appellant to PW4 and PW5 and his conduct leading to the discovery of the robbed Page 26 of 35 motorcycle relevant and incriminating. See Section 31 of the Evidence Act and the case of Iota Gishi and Three Others v. Republic, Criminal Appeal No. 5 of2008 (unreported)". In this case the accused persons have not asserted ownership to the motorcycle. PW4 clearly explained that the motorcycle belongs to the deceased as he know it, he participated even at the purchase of it. The defence side cross-examined PW7 on the added middle name of Chuma cha ulaya which made the name Mchape Chumacha ulaya Mkosa different to the name of Mchape Mkosa. But he said Mchape Mkosa and Mchape Chumachaulaya Mkosa may be the same person. On my part I do not see any difference in the two names because the first and last names are the same. By omitting the middle name does not make the motorcycle not property of deceased as there is no any other person who claimed to own it. I have carefully examined the evidence of this case as a whole. With this evidence, there is no dispute that Mchape Mkosa is dead. His death was proved by PW.4 Yona Mkosa the deceased brother who a day before his death they were together, they parted each other after deceased was hired by the person PW4 identified as 3rd accused. But the following day he found him in the forest at Mapogolo village dead. The Report on Postmortem examination of the deceased body established that he died of severe haemorrhage due to multiple cut wound. The cause of death was not disputed. The dispute is on who killed the deceased. The available evidence with the exception of 4th accused connects the 1st, 2nd, and 3rd accused to Page 27 of 35 the committed offence. The 4th accused was just mentioned by 1st accused in his cautioned statement like Samwel Mdapo who was not charged in this case. However there is no any other evidence corroborated statement of 1st accused implicating the 4th accused. But for other accused persons, there is no doubt that they participated in the murder of Mchape Mkosa, although not all actually executed the killing, but each had a role to play. But all had common intention to kill. The principle of common intention is formulated in section 23 of the Penal Code as follows:- "25 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". The provision has been interpreted in various decisions such as James s/o Ihuya v. Rep. [1980] TLR197 and Alex s/o Kapinga and Others v. Rep., Criminal Appeal No. 252 of 2005, CAT. From the cited cases the following principles or qualification to the principle were set:- (a) For section 23 to apply it must be shown that an accused person shared with the actual perpetrator of the crime a specific unlawful purpose which led to the commission of the offence charged. Page 28 of 35 (b) The offence committed must be a probable consequence of the prosecution of the unlawful purpose. (c) To constitute a common intention it is not necessary that there should been any concerted agreement between the accused persons prior to the commission of the offence. Common intention may be inferred from their presence, their actions, and their omission of any of them to disassociate himself from the offence (d) Mere presence at the scene of crime is not enough to infer common intention. Now by looking at the evidence received, that is confessional statements of 1st and 2nd accused persons, evidence of PW.4 and discovery of the motorcycle property of deceased which disappeared after deceased death, there is no doubt that the 1st, 2nd and 3rd accused persons had common intention to kill the deceased. Just to emphasize on confession, an accused person may not admit all the ingredients of an offence as provided under paragraph (c) of section 3(1) of the Evidence Act. But there is what we can call implied confession as provided under paragraphs (a), (b) and (d) of the Act in which accused admits that he has committed the offence, by his words or conduct, or declarations. When these are taken together with other incriminating facts proved, an inference may be drawn that the offence has been committed. In the case of Pascal Kitigwa v. R. (supra), it was held:- Page 29 of 35 "1. Evidence from a co-accused as in this case is accomplice's evidence and a court may convict on accomplice's evidence without corroboration if it is convinced that the evidence is true, and provided it warns itself of the danger of convicting on uncorroborated accomplice's evidence. 2. Although the law does not say that conviction on uncorroborated accomplice's evidence is illegal it is still unsafe as a matter of practice to uphold conviction based on the uncorroborated evidence of a co-accused. 3. corroborative evidence may be circumstantial and may well come from the words and conduct of the accused and in this case the appellant independently corroborated the evidence of co-accused". (Emphasis supplied). The above provision emphasizes on uncorroborated evidence of the co-accused, what matters is for the court to be satisfied that the evidence of that co-accused is nothing but the truth. I am of the considered view that the available circumstantial evidenced lead to irresistible conclusion that the three accused persons namely Fred Mathayo Nyagawa, Isack Mgimba and James Mteleke did commit the charged offence. But for the 4th accused, there is no sufficient evidence connecting him with the charged offence. The cautioned statement by the 1st accused alone is insufficient evidence to connect the 4th accused with the charged offence as that evidence is not corroborated. The honorable assessors have opined unanimously that he is Page 30 of 35 not guilty of murder, of course even for any other related offence. I therefore find him not guilty and I acquit him forthwith. But for the rest of the accused persons, I am satisfied that they killed the deceased. The accused persons are charged with murder, it is trite law that, for the prosecution to prove the offence of murder they have to prove both act of killing and malice aforethought, but sometimes motive behind. As pointed out above, the three accused persons had common intention to kill the deceased. Their plan and the way the killing was executed, there is no doubt that the accused persons did kill with malice aforethought. The honorable assessors opined that the prosecution has proved the charge against them beyond reasonable doubt and thus they are guilty of murder, I agree with them, I therefore convict them as charged. JUDGE 12/11/2021. Date : 12/11/2021 Coram : Hon. F. N. Matogolo- Judge For Republic : Mr. Matiku Nyangero - State Attorney For 1st Accused : Mr. Kaguo Briyton - Advocate For 2nd Accused : Ms. Khadija Mwambungu - Advocate Page 31 of 35 For 3"1 Accused : Ms. Tunsume Angumbwike - Advocate For 4th Accused : Mr. Kaguo - Advocate Accused persons : All present under custody Interpreter : Mr. Charles Mwasumbi, English into Swahili and Vice Versa. Ms. Matiku Nvanaero — State Attorney: My Lord I am appearing for the Republic. The accused persons are present and represented by Mr. Brighton Kaguo, Khadija Mwambungu and Ms. Tunsume Advocate respectively. The case is for judgment, on our part we are ready. Tunsume - Advocate: My Lord even on the defence we are ready. COURT PREVIOUS RECORD: Page 32 of 35 Mr, Matiku Nvanaero — State Attorney: My Lord we have no record of the accused previous convictions. But I pray for your honourable court to consider the law in sentencing the accused persons especially Section 196 and 197. My Lord under section 357 of the CPA Cap. 20 R.E. 2019, the motorcycle which was tendered in court as exhibit be restored to the deceased relative. (PW4) Yona Mkosa as there is no dispute in ownership. That is all. MITIGATIONS Mr. Brighton Kaquo — Advocate: My Lord the 1st accused Fred Mathayo Nyagawa was convicted of murder. He has no criminal record. But the offence he is convicted, your honourable court hands are tied up. It has no any other option than to impose the sentence provided by law. That is all. Ms, Khadija Mwambunqu - Advocate: My Lord as the sentence for murder is only one we have nothing to mitigate for 2nd accused. That is all. Page 33 of 35 Ms. Tunsume Anqumbwike — Advocate; My Lord the third accused is convicted for murder, the offence having only punishment as provided under Section 197 of the penal code Cap. 16 R.E. 2019, we live to the court to impose the prescribed sentence. That is all. SENTENCE The accused persons Fred Mathayo Nyagawa, Isaya Mgimba and James Mteleke, 1st, 2nd and third accused respectively are convicted of murder. As it was submitted by the learned State Attorney as well as the defence counsel for the accused persons, the offence accused persons are convicted with has only one punshment according to Section 197. This court has no any option than pronouncing the punishment provided by law. The only punshment for murder is death sentence. I therefore pronoucne that the three accused persons above named with the hanged to death. JUDGE 12/11/2021. Page 34 of 35 Right of appeal is fully explained to them. JUDGE 12/11/2021. ORDER The motorcycle subjected of this court exhibit P.4 be restored to deceased relatives particularly Yona Mkosa PW4. JUDGE 12/11/2021. Page 35 of 35