republic vs mathias john kazimiri and another 2021 tzhc 2455 29 march 2021

IN THE HIGH COURT OF TANZANIA ATMWANZA ORIGINAL JURISDICTION (MWANZA REGISTRY) CRIMINAL SESSION CASE NO. 133 OF 2015 THE REPUBLIC VERSUS 1. MATHIAS JOHN KAZIMIRI 2. LEONARD JOHN MARWA 3. JUDGMENT Date of Last Order: 23.03.2021 Date of Judgment: 29.03.2020 A.Z.MGEYEKWA, J The Accused persons MATHIAS JOHN KAZIMIRI AND LEONARD JOHN MARWA stand charged with murder contrary to section 196 of the Penal Code, Cap.16 [R. E 2002]. The Accused Person denied the charge and hence the full trial involving calling of four prosecution witnesses and one for the defense. 1 The prosecution had alleged that MATHIAS JOHN KAZIMIRI AND LEORNARD JOHN MARWA on the 3° December, 2013 at Mlango Mmoja at Mabatini area in Nyamagana District within Mwanza Region did murder one ASHA 0/0 OMARY NYABUYENZE. During the trial, Ms. Mwaseba, learned State Attorney represented the Republic while Mr. Kilenzi, defence counsel represented the 1 accused person, and Mr. Kange, defence counsel represented the 2° accused person. The trial was conducted with the aid of three assessors namely; Josepha! Madili, Jamila Kitundu, and Catherine Katemi. After each of the case had been closed, the counsels for both parties made their final submissions. I thank the counsels for their informative submissions, and the same has been considered in this judgment. Thereafter, as a matter of procedure, I summed up to the assessors who all gave their opinion in terms of section 298 (1) of the Criminal Procedure Act, Cap. 20 [R.E 2019]. I extend my thanks to the ladies and gentleman assessors who sat with me and stated their opinion basing on the facts of the case. All assessors opined to find the accused persons are not guilty. In building its case, the prosecution called 10 witnesses, namely; Obadia Samweli Denga, Nyabugenze Kilondela, Dotto Moshi Athuman, Fatuma Juma, G. 5240 DC Innocent, E. 9438 0/Cpl Kenyata, E. 7722 D/C James, Nzereli Nyarukamo, Veronica John, and Inspector Masaga 2 Francis. The prosecution side also tendered thirteen exhibits namely; Post Mortem Examination Report (Exh.P1 ), a letter with Ref. MWR/CID/B1/1/ VOL.76/27 (Exh.P2), Printout generated from a computer (Exh.P3), Certificate of Seizure (Exh.P4), Sim Card (Exh.P5) Search Order PF91 (Exh.P6), NMB card (Exh.P7), NHIF Card (Exh.P8), Voter Registration Card (Exh.P9), TANESCO customer Identification card (Exh.P10) Iron bar (Exh.P11), Bush knife and one knife (Exh.P12 collectively), 2 bedsheets (Exh.P13) and the 2° accused person cautioned statement (Exh.P14) The prosecution witnesses testified as follows:- Breaking the ice for the prosecution was Obadia Samweli Denga, PW1 in these proceedings. He testified that on 02.12.2013 the deceased was traveling from Mwanza to Magu and he could not trace her call until 04.12.2013 when he went to Mwanza to collect the building material. PW1 testified that while on a bus he heard that there was a woman who was killed at Mabatini area and her body was taken to Bugando Hospital. PW1 went on to testify that he took a motorcycle to Bugando Hospital, he entered into a mortuary to inspect the bodies and was able to identify the body of the deceased thus he informed the deceased relatives about the incident. During cross-examination, PW1 testified that he did not know who killed the deceased. 3 $ y PW2 Nyabugenze Kilondela testified that he was informed of the death of his sister and on 05.12.2013 they went to the Central Police Station and later to Bugando Hospital and he identified the body which was handed over to him for burial. He went on to testify that, he does not know who murdered the deceased. Dotto Moshi Athumani (PW3) testifies that on 03.12.2013 while at Mama Mariam's house, she saw the 2° accused selling a cellular phone. PW3 testified that she took her sim card inserted into the phone and called one Ally in Dar Es Salaam to find if the phone was working properly. She went on to testify that she received a phone call from one Innocent who wanted to be his friend and they keep communicating until 31.01.2014 when they met at Mwanza City center and she was arrested over for being in possession of the sim card. PW3 further testified that she told the Police Officer that the 2° accused sold her the cellular phone then the 2° accused was arrested. PW4, Fatuma Juma testified that on 03.12 .2013 the 2° accused Leonard John Marwa went to her house and he had two cellular phones, one make Nokia and told her that he was selling the mobile phones. She went on to testify that her friend Dotto wanted to buy it thus she inserted her sim card in one of the cellular phones and called her friend. PW4 testified that the negotiation of price failed, and the 2° accused left with 4 4 s4 the cellular phones and after a while, Dotto was arrested. PW4 testified that the 2° accused is her neighbor and he was alone the time he was selling the mobile phone and he did not say where he got the phone. It was G5240, DC Innocent (PW5) testimony that from 1 December to 5th December 2013, he was reading the murder case file of the deceased Asha Omary whose cell phone was operating. He testified that he started to investigate the case by writing to the network provider (Vodacom) a letter with Ref No. MWR/CID B.11VOL 76 27 (Exh.P2) and received vide email the printouts of the deceased number communications (Exh.P3). He went on to testify that the said exhibit provided information such as the date, duration, time, location of the communication, the number used in communication, and the IMEI number used. PW5 continued to testify that he was able to trace the sim card. PW5 was able to apprehend the 3° accused and he was able to detect the IMEI number 359739044 768460 of the deceased's cell phone. PW5 testified further that the sim card was once inserted in number 0762509545, the information was used to apprehend Dotto and the 2"° accused. The 2° accused was arrested alleged for selling a stolen mobile phone and upon interrogation, he confessed to have been involved in the murder of the deceased assisted by Peter Mathias John Kazimiri, the 1 accused whom 5 they have arrested and during a search at his house and his shop, they found the deceased's properties. During cross-examination, PW5 enlightened that, he arrested the 1 accused two months after the occurrence of the murder. He went on to testify that he does not remember if the shop belonged to 1 accused since the Street Chairman was leading them and DW1 opened the shop. PW6, E9438D D/C Kenyata, testified that he is a Police Officer working at the RCO office as an investigator who also arrests and interrogated the accused persons. He testified that he took the 3'° accused who went to show him the sim card of the deceased person. He testified further that he prepared a certificate of the seizure (Exh. P4) and also tendered the sim card (Exh.P5). On cross-examination, he admitted that during the search no any witnessed was called to witness the search, instead, it was the accused who brought them there. PW7, E7722DCPL James, testified that he was involved in the investigation of the case of Asha Omary who was murdered on 03° December, 2013. PW? testified that he interrogated Leonard John Mwita who was brought in his office and Leonard Mwita (PW2) named Kazmiri. PW? testified that they arrested Kazimira on 02.02.2014 at lbochi and they took him to the Police Station whereby DW1 confessed to have murdered the deceased. PW7 testified further that they searched the 1 accused's 6 house and shop and during a search they managed to recover four identity cards; NMB card, NHIF card, NSSSF card, and TANESCO card bearing the name of Asha Omari Nyabuyenze (the deceased). He then filed a search order and the chairman was present and signed (Exh.P6). He also tendered the NMB card (Exh.P7), the NHIF card (Exh.P8), the Voters Card (Exh.P9), and Luku Card (Exh.P10). He also tendered a piece of an iron bar (Exh.P11 ), one bush knife, and one knife (Exhibit P12 collectively), and two sheets (Exh. P13). When PW7 was cross-examined, he did not have proof that the shop belongs to the pt accused. PW7 testified that the IDs belonged to the deceased and the suspect used the iron bar in the killing of the deceased. It was PW8, Nzereli Nyarukano testimony that on 02.02.2014 while sipping a cup of milk at mama Kobe, a Police Officer come with the 1° accused and there was exchange of words between the Police Officers and the 1accused. He stated that the Police Officers broke the door and the police asked us to search the place before they got inside. He went on to testify that upon entering the shop he saw an iron bar 18 mm with a sharp edge, bush knives, two bedsheets, and a handbag. In the handbag, there were 8 CDs and 4 identity cards to include; NMB card, NHIF card, NSSSF card, and TANESCO ID bearing the name of Asha Omari Nyabuyenze. He went on to testify that the Police Officers collected the 7 exhibits and also took a music system and asked him to sign in the certificate of the seizure (Exhibit P6). PW9, Veronica John testified that the deceased was her niece, she was born in 197 4. PW9 was able to identify the deceased picture. When cross-examined, She stated that the deceased was found dead in Mabatini area. PW10, Inspector Masaga Francis testified that on 02.02.2014 he was assigned to record the 2° accused statement. He testified that the accused admitted to having committed the offense with 4 other accused. PW1 0d was able to identify the statement in court and prayed to tender it as an exhibit. The statement was objected to, for being made contrary to legal requirements, and after the conduct of trial within a trial, it was admitted and marked as Exhibit P13. When put on his defense the 1accused person, Mathias John Kazimiri did not call any witness. He testified that he was a businessman, selling CDs in Sahara area. DW1 testified that on 02.02.2014 he was arrested. He testified that he did not know the 3'° and the 2° accused he only saw them for the first time at the court. He went on to testify that, the Police Officer searched his house and his shop and during search, he was only with the police officers and no one witnessed the search. He testified that 8 the Police Officers ordered him to lay down flat then they break into the shop and he was ordered to stay outside. DW1 continued to testify that, the Police Officers broke the sofa chair, took a TV, a fridge, and 2 radios and no one was present to include a street chairman or ten-cell leader. From the shop, the police officers took 2 radios, CDs, and 2 cellular phones. He denied that they found Identification cards in his shop. DW1 claimed that the Police Officer showed him the said Identification cards while they were in the car and asked him if he identified the girl whose picture was appearing in the Identification cards. DW1 continued to protest his innocence. When DW1 was cross-examination, DW1 denied that he was caught in possession of a sim card rather he complained that during the search the Police Officers took his properties. DW2 Leonard John Marwa testified that he was arrested on 31.01.2014 and was alleged for the murder of an unknown person. He testified that he was repairing electrical equipment at Bugando mission since 2013. DW2 claimed that he was arrested at his house by three Police Officers who were accompanied by Tabu and Aisha. DW2 testified that he was repairing Tabu's TV and deck. DW2 testified that the arresting officer PW10 asked him if he was in possession of Tabu's properties whereby DW2 acknowledges having them but stated that he delayed 9 ,{ repairing them because he was searching for spare parts. DW2 testified that he was asked about the murder incident that occurred on 03.12.2013. It was DW2's further testimony that on 06.03.2014 Police Officer entered the cell and ordered another Police Officer to take him to the hospital for treatment. DW2 tendered a PF3 (Exh.D1 ). The accused person testified that he never made the statement under discussion in which he is said to have admitted to have committed the offence he is charged with instead he said that the Police Officer tortured him and forced him to sign the papers. He denied being involved in a murder. DW2 urged this court to dismiss the charges against him. Having heard the testimonies of the prosecution and defence witnesses and the submissions made by both learned counsels, there is no doubt that Asha d/o Omary Nyabuyenze is dead, and she died of unnatural death. The issue for determination is who killed the deceased. Aided with the predominant legal principles which cover aspects of criminal law, as well as the law of evidence that are of relevance to this case, I am duty-bound to ensure that no innocent person is convicted of freak or flimsy evidence. The first long-established principle in criminal justice is that of the onus of proof in criminal cases, that the accused committed the offense for which he is charged with is always on the side of the prosecution and not 10 on the accused person. It is reflected under Section 110 and Section 112 of the Evidence Act Cap.6 [R. E 2019], and cemented in the case of Joseph John Makune v R [1986] TLR 44 at page 49, where the Court f Appeal held that:- "The cardinal principle of our criminal law is that the burden is on the prosecution to prove its case; no duty is cast on the accused to prove his innocence. There are a few well-known exceptions to this principle, one example being where the accused raises the defense of insanity in which case he must prove it on the balance of probabilities ... " In respect of murder cases, the above authority must be read together with section 200 which defines malice aforethought as to the requisite ingredient of the offence of murder. The term malice aforethought has been interpreted by the Court of Appeal of Tanzania in the case of Bamboo Amma and Petro Juma @ Lanta v The Republic, Criminal Appeal No. 320 of 2016 - CAT- Arusha (unreported) to mean one or more of the following circumstances. a) An intention to cause the death of or to do grievous harm to any person whether that other person is a person actually killed or not; b) Knowledge that the act or omission causing death will probably cause the death of or grievous harm to the same person. It is with those principles in mind that I am going to base my judgment. In 11 determining this case, I will determine the issue as to whether the 1 and 20 accused persons murdered the deceased. It is from the court record that all the accused denied having murdered the deceased and there is no any witness who testified to have seen the murderer. The prosecution accusation is based on circumstantial evidence and recent possession of exhibits by the accused which were tendered before the court and the repudiated confession by the 2° accused. The prosecution case against the accused is entirely on circumstantial evidence. There was no eyewitness produced by the prosecution to the alleged murder of Asha Omary Nyabuyenze. For the prosecution to sustain a conviction on circumstantial evidence the Court of Appeal of Kenya in the case of Sawe v Republic [2003] KLR had this to say:- 11 In order to justify on circumstantial evidence, the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. There must be no other co-existing circumstances weakening the chain of circumstances relied upon. The burden of proving facts that justify the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence remains with the prosecution. It is a burden that never shifts 11 to the party accused. 12 In a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The court must satisfy itself that various circumstances in the chain of the events must be such as to rule out a reasonable likelihood of the innocence of the accused. When the important link goes, the chain of circumstances gets stepped and the other circumstances cannot in any manner establish the guilt of the accused beyond all reasonable doubt. The court must be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes unconsciously it may happen to be a short step between moral certainty and legal proof. The prosecution, therefore, needs to establish circumstances that connect the accused persons and the charge levied against them, and for a conviction to stand, the evidence must be so connected that they lead to no other conclusion than the guilty of the accused persons. In circumstantial evidence, all facts must point to the guilt of the accused, to the exclusion of everyone else. I acknowledge that this is among the high- profile murder cases which involved an innocent young man, who was brutally killed. The prosecution has presented a mountain of circumstantial evidence in support of the conviction. I am going to determine whether proof of guilt is without a doubt, therefore, I am going to weigh all the evidence presented based on circumstantial evidence and come to my own decision. The 13 prosecution raised circumstantial evidence that it was the accused persons who killed the deceased. The prosecution also based their accusation on the exhibits which were alleged to be found in the 1° accused's shop after conducting a search. It is from the evidence of PW5, PW7, PW8, and PW1O together with the 1 accused that on 02.02.2013 they participated in the search of the 1 accused shop which they claim to recover the deceased belongings and other items suspected to have been used in the murder of the deceased and filed a certificate of seizure (Exh.P6). It was PW5's testimony that they searched the 1 accused shop and the Street Chairman is the one who leads them to the shop but when he was cross examined he stated that he did not know if it was Kazmili's shop but he is the one who opened the door. PW5 testified that they were able to recover several items such as Identity cards, Voter identity cards; ATM cards, and NHIF identity card all bearing the name of Asha Omary Nyabuyenze and an iron bar. PW6, a Police Officer testified that the accused lead them to his shop and there was no any witness because the accused volunteered. But the witnesses appended their signatures. PW6 tendered a certificate of seizure (Exh. P4 ). PW? testified that during a search the street Chairman was present but he did not remember other people besides Police officers 14 he tendered a search order PF 91 (Exh.P6). PW7 also tendered a bush knife and one knife (Exh.P12 collectively), Two bedsheets (Exh.P12 collectively). PW7 a Police Officer testified that all exhibits were kept in the exhibit room. PW8 testified that he witnessed the search at the 1° accused house whereby the Police Officers broke the 1 accused door. PW8's evidence corroborates the evidence of DW1 that the Police Officers broke the 1accused shop door. I am wondering why the Police Officers (PW5, PW6, and PW7) did not testify that they broke the 1 accused door. During cross examination, PW5 testified that he cannot confirm if the shop which they have searched belonged to 1accused shop. PW5 and PW8 testified that the street Chairman was not present while PW6 and PW7 testified that the Street Chairman also witnessed the search. However, as rightly pointed out by the learned counsel for the 1 accused there was no explanation from the prosecution as to why other witnesses who witnessed the search were not called to testify in court, they could have cleared the doubts. It was the prosecution's final submissions that, the prosecution managed to parade witness before the court who testified that the 1accused was in possession of the deceased properties to include Peter Maneno, Venance Richard, however, they were not called to testify to prove the prosecution case. 15 In my view, the contradictions of PW5, PW6, and PW7 compared to PW8 whether the Police Officers broke the 1accused shop door goes to the root of the case. These contradictions create doubts as to whether the 1 accused was in possession of the deceased properties. Taking to account that PW9 when cross examined testified that she heard that the deceased was found in possession of Exh.P8 contrary to PWS, PW6, PW7, and PW8 testimonies. It is settled that, where there are contradictions in evidence the court is duty-bound to reasonably consider and evaluate those inconsistencies and see whether they are minor or major ones that go to the root of the matter as observed in the Mohamed Said Matula v Republic [1995] TLR 3. In my view, this is a major contradiction the same diminished the credibility of PW5, PW6, and PW7 who are Police Officers present during a search for failure to testify that they broke the door while the independent witness (PW8) and DWT testified that the Police Officer broke the 1° accused shop door. Next for discussion, is the doctrine of the recent possession, whether the 1accused person is held liable for murder on account of his claimed possession of the items that bear the name of Asha Omari Nyabuyenze. It is trite law that the doctrine of recent possession can extend even to murder cases. This was well elaborated in the case of the Court of Appeal 16 es ¢, for Eastern Africa in Rex v. Bakaris/o Abdulla (1949) 16 EACA 84 held that the doctrine of recent possession can extend to any offense incidental to or connected with stealing including murder. The question to ask here is whether the items were recently stolen from the deceased and the killing was incidental to the stealing. As testified by the prosecution witnesses, there was no evidence that shortly before or at the incident of the killing, the deceased was in possession of the recovered items. The deceased was found dead on 03.12.2013 at Mabatini area with no trace to the assailants and the accused were arrested two months later. Applying the case of Paul Bundala & Julius Sunzula v R [2005] TLR 355, the Court refused to extend the inference of guilt against the appellants for the offence of stealing the goats to the charge of murder. It was the court reasoning that, it is difficult to link the two incidents, that the stealing and the killing of the deceased as one. It is therefore my findings that there is no proof that the 1accused came into possession of the items of the deceased in the course which he alleged to have killed Asha Omari Nyabuyenze. See also the case of Director of Public Prosecution vs Orestus Mbawala@Bonge Criminal Appeal No. 119 of 2019. I now turn to the prosecution evidence that the 2° accused person was in possession of the deceased phone. The prosecution evidence does not show that the 2° accused had actual nor constructive 17 € t F g possession of the deceased cellular phone at a time of arrest or during a search. The prosecution is basing its accusation on DW2 over the evidence by PW3, PW4, and PW7Z. Despite the computer-generated information (Exh.P3), it was the sim card of PW3 which was used in the particular cellular phone. Apart from PW3 evidence, there is no evidence to prove that the deceased shortly before or at a time when she faced the brutal death was in possession of the cellular phone. In R v Kartin Cameron (2003) TLR 84 the Court of Appeal of Tanzania laid down a number of principles as the basis of grounding conviction on circumstantial evidence. It was stated among others that:- "In murder cases, evidence should be cogent and compelling as to convince a jury, judge, or the court that upon no rational hypothesis other than murder can the facts be accounted for ... " Guided by the above authority, it is my view that the evidence against DW2 does not compel this court to ground conviction upon the accused persons. Concerning the 2° accused cautioned statement, it was admitted in court as Exh.P10. However, I have scrutinized the cautioned statement of the 2"° accused and found that it was recorded contrary to the requirement of section 50 (1) (a) of the Criminal Procedure Act, Cap. 20 [R.E 2019]. PW10 recorded the 2° accused out of the prescribed time of four hours 18 after being arrested. PW10 testified that the accused was arrested on 02.02. 2014 at 08:00 hrs. However, the records reveal that in his statement the PW5 testified that they arrested the 2° accused person on 01.02.2014 around evening hours and interrogated him at 00:00 hrs. Reading the cautioned statement of the 2° accused person it shows that the Police Officer recorded the same on 02.02.2014 at 08:00 hours. In terms of section 50 1(a) and (b) of the Criminal Procedure Act, Cap. 20 [R.E 2019], unless extended, a cautioned statement of a suspect is required to be recorded within a period of four hours commencing at the time when he was taken under restraint. Thus, the cautioned statement of the 2° accused was taken beyond the prescribed time of four hours and no extension was sought and granted. See the case of Samwel Henry Juma v Republic, Criminal Appeal No. 211 of 2011, which was delivered on 5 May, 2016. Therefore, the 2° accused person cautioned statement cannot be left to stand, I proceed to expunge it from this court record. After I have expunged the 2° accused cautioned statement which the prosecution relied upon so much, the question now is whether the remaining evidence supports the charge of murder. I am in accord with the opinion of the Assessors that there is no any cogent evidence to link the accused persons with the murder case since there wascontradiction. 19 Additionally, in my view, PW8 was not the right independent witness to witness the search I am saying so because PW8 testified that he was not in good terms with the 1 accused. Therefore, it was important for the prosecution to call other independent witnesses to testify in court which was not done. After I have analyzed the prosecution and defense evidence, this court has found that there are fundamental shortfalls in the prosecution evidence. I, therefore, in the light of what I have stated hereinabove, I am of the settled mind that the prosecution has not proved this case to the standard required by section 3 (1) of the Evidence Act, Cap. 6 [R.E 2019]. That is, proof beyond reasonable doubt. Consequently, I acquit the two accused persons; Mathias John Kazimiri and Leonard John Marwa of the offence of murder contrary to section 196 of the Penal Code Cap.16 [R.E 2019]. They should forthwith be released from custody unless otherwise held for some other offence. Order accordingly. « DATED rM WANZA this 29 March, 2020 . ov s : ;,; fi/b \ js .... \ ) \'i . /~ 1 ;;,\; ~- -u.,.-< 1. j d ~ _,._,. A.Z.MGEYEKWA Jubse 29.03.2021 ' ,°,'~ r !, __r.1 ,..v'<-l>_l-+-"7 . . yN>- 'J~\-r -- ~ •'/ i's ',- : p hivvN' Right toapjeaffully explained. 20