republic vs marko kivamba 2021 tzhc 9250 29 november 2021

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA IRINGA DISTRICT REGISTRY AT MUFINDI CRIMINAL SESSIONS CASE NO. 55 OF 2018 REPUBLIC VERSUS MARKO S/O KIVAMBA JUDGMENT. 29th & 29th November, 2021. Utamwa, J. In this case the accused person MARKO S/O KIVAMBA is charged with two counts of murder contrary to Section 196 of the Penal Code, Cap. 16 R.E 2002 (now R.E 2019). In the first count, it was alleged that, on the 1st day of March, 2017 at Igomtwa village within Mufindi District of Iringa Region, the accused did murder one Matei s/o Kivamba. Regarding the second count, the allegations were that, on the same date and place as in the first count, the same accused murdered one Rozarina d/o Nyigo. When the charge was read over and explained to the accused person, he pleaded not guilty to both counts. However, during the preliminary hearing conducted under Section 192 of the Criminal Procedure Act, Cap. 20 R.E 2002, the following facts were undisputed; that, the accused's name is as shown earlier and he is son of the said Matei Kivamba. The said Rozalina Nyigo was his Page 1 of 25 stepmother (being wife of Matei Kivamba). The accused did not also dispute that he was arrested having a hoe. During the trial, the Republic was represented by Ms. Twide Mangula, learned Senior State Attorney (the SSA) whereas the accused person was represented by Messrs Lazaro Hukumu and Alfred Stephano, learned advocates. In supporting the charge against the accused, the prosecution paraded a total of seven (7) witnesses whose testimony was supplemented by three (3) exhibits. The accused person relied upon his own sworn testimony and called no other witness. The prosecution case according to its witnesses was as follows: the prosecution witness No. 1 (PW.l) one Mr. Zawadi Lazaro Nyigo said, he is a ten-cell leader in Igegele hamlet. On the material date (1st March 2017) he was at his home at Igegele hamlet. At 10:00 pm (night time) two boys namely Noel Kivamba and Maselino Kivamba visited his home. They were sons of the two deceased persons (Matei s/o Kivamba and Rozalina d/o Nyigo). Noel told him that, their father and mother had been killed. PW.l took them to another local leader (secretary of the hamlet). The two boys also informed that local leader that their father and mother had been killed. The hamlet secretary then made a call to the village chairman. The Chairman, the executive officer of the village and other persons like Mashana Kalinga, Elia Mali and Samson Ngimba went to the Secretary of the hamlet (Philemon Ngamba). They then went to the scene of crime at the home of Matei Kivamba in Igegele hamlet. Upon reaching there, they found Matei Page 2 of 25 lying in a bed bleeding. He had cut wounds on the head, hands and other parts of the body. They also saw the body of Rozalina lying on the ground in a farm surrounding the house. It had cut wounds on the head, hands and legs. It was also the evidence by the PW.l that, the two boys named the accused as the one who had killed their parents. The chairman then made phone calls to local leaders of the neighbouring villages asking them to arrest the accused if they saw him. The accused was arrested at Ugesa village (six kilometres from Lugege hamlet). He PW.l and other persons, including the chairman of Igomtwa village (one Luchano Mwihava) went to Ugesa village to take the accused. They found him under custody. When Luchano interrogated the accused at Ugesa village, he admitted that he had killed Matei and Rozarina by cutting them with a machete. They then took the accused to Igomtwa village office. The Village Executive Officer reported the matter to police at Mafinga police station by a phone call. The police went to the scene of crime the next day. In cross-examination the PW.l said, Rozarina was his aunt. The accused was thus, his relative since Rozarina was married to his father, Matei. They could see the cut wounds on the dead bodies by assistance of a torch as it was night. They went to Ugesa village to take the accused by use of motorcycles. In examination by the court, the PW.l identified the accused in the dock as the said Marko Kivamba. Page 3 of 25 The PW.2, Dr. Venance Cosmas Kiyeyeu testified that, he is an Assistant Medical Doctor (AMO) in Mafinga Hospital. He conducted the Post Mortem examination of Mathew Kivamba and Rozalina Nyigo at Igomtwa village on the 2nd March 2017. He went there accompanied by police officers. They found the body of a male person lying in a bed in a room. It was soaked in blood. The other body of a female person was lying in a farm near the house. The body of the male deceased was introduced to him by a relative as being of one Mathew Kivamba. The body which was outside the house was introduced to him as being of a female person one Rozalina Nyigo. Upon examining both bodies, he made the respective reports in special forms. The report regarding the deceased Mathew Kivamba (exhibit P.l) showed that, the cause of his death was due to Hypovolaemic Shock secondary to severe head injury. The head injuries might have been caused by a sharp object. The report regarding the death of Rozalina Nyigo (exhibit P.2) also showed that, she had died due to Hypovolaemic shock secondary to multiple cut wounds. The wounds might have also been caused by a sharp object. He then handed over the two reports to the police and another copy to his supervisor. Felista Gerald Kessy, testified as PW.3. She said, at the material time she was a Primary Court Magistrate in Mufindi District, at Mafinga. She was thus, a justice of peace. On 3rd March 2017 she recorded the accused's extra- judicial statement. The statement was objected by the defence camp. However, upon a trial within trial being conducted, the same was admitted as exhibit P.3. PW.3 further said, in recording the accused's statement she was guided by the Chief Justice's instructions contained into a Guide for Page 4 of 25 Justices of Peace. The same provides guidelines on how to record an extra- judicial statement. She also said, the accused in the matter at hand, willingly gave his statement before her. He was not induced or threatened by any person. In the statement the accused confessed to have killed Matei Kivamba and Rosalina Nyigo. In his extra-judicial statement the accused showed that, the reason for causing the death of both deceased persons was a tag of war on land disputes between him on one side, and the two deceased persons on the other. PW.4 (Richard Mandili) told the court that, in the night of the 1st March 2017 he was informed by the Chairman of Igomtwa village that, the two persons had died in the Igegele hamlet within the Igomtwa village. They were Matei Kivamba and Rozalina Nyigo. He went to the scene of crime accompanied by another person. He found the body of Matei lying in a bed inside his room with cut wounds. There was a lot of blood on the floor. He also saw the body of Rosalina in a farm around the house. It also had cut wounds and a lot of blood. He then reported the matter to police and organized a search team to arrest the accused. The accused had been named by his siblings as the killer of the two deceased persons. The search team included one Luchano Mwihava who was team­ leader. Later on Luchano informed him (PW4) that, the accused had been arrested at Ugesa village. The accused was then put in the Igomtwa village office. When policemen went to Igomtwa village office, they interrogated the accused in his (PW.4) presence. He heard the accused apologizing for the Page 5 of 25 deaths of the said Matei and Rozalina. At that time the accused was in good condition and was not tied in anyway. The police then took him to Mafinga police station. In cross-examination, PW.4 said, he knew the accused since 2020. He got the information of the two deaths through telephone calls. Another prosecution witness was Mr. Luchano Gwido Mwihava. He testified as PW.5. In his testimony he said, in March 2017 he was living in Igomtwa village as the chairman of the village. He knew both deceased persons as they were living in Igegele hamlet in Igomtwa village. In the night of the 1st March 2017 to 2nd March 2017, he received a phone call from one Zawadi Nyigo (PW.l) informing him of the deaths of Matei Kivamba and Rosalina Nyigo. He then went to the scene of crime. With the aid of a torch, he saw the body of Matei lying in the bed bleeding. It had a cut wound from the mouth to the back of the head. He also saw the body of Rosalina lying in the farm bleeding from the head, hands and legs. He then called Richard Mandili (PW.4) who is the Village Executive Officer and informed him of the event. Richard also went to the scene of the crime. The PW.5 also testified that, in cooperation with other persons, they started searching the accused for he had been mentioned as the culprit. He also made calls to neighbouring villages informing them of the event so that they could help in arresting him if seen there. Later on, he received a phone call from the chairman of Ugesa village notifying him that, the accused had been arrested there. He went to Ugesa village to take the accused in the company of others. They found the accused in a god state sitting on the Page 6 of 25 floor. He interrogated him at Ugesa village and he admitted to have killed his father (Matei) and his stepmother (Rozalina) over land disputes. They then put the accused in a temporary lockup of the Igomtwa village until when the policemen arrived in the morning of 2nd March 2017. The accused also admitted to policemen while at Igomtwa village office that, he had killed the two deceased for land disputes. The police took the accused with them. The PW.6 was one No. E.6508 Sgt. Elihuruma, a police officer at Mafinga Police station in Mufindi District. He told the court that, on the 2nd March, 2017 he was assigned to go to Igomtwa with other policemen as to attend a murder incident. They went there in the company of a doctor. On arrival at Igomtwa, they met Richard Mandili who is the village leader and he took them to the scene of crime. They found a male person dead in a house and a dead body of a lady lying in a farm outside the house. Both bodies were surrounded with blood. The doctor examined the two bodies and confirmed that they had died. It was also the evidence of Pw.6 that, he drew a sketch map of the scene of crime (exhibit P.4) while other police officers were recording statements of some witnesses. They then found the accused put in the village office in a good condition. He interrogated the accused and he admitted to have killed both deceased persons. They took the accused to Mafinga police station. He also identified the accused in the dock as the one whom he took from Igomtwa village. In cross-examination, the PW.6 told the court that, policemen did not retrieve any weapon from the accused. This was irrespective of the fact that, Page 7 of 25 the accused had admitted to him that he had used a machete to cut both the deceased persons. The last prosecution witness, was Maselino Kivamba who testified as PW. 7. His evidence was essentially that, on 1st March 2017 he was living at Igomtwa village together with his father, Matei Kivamba) and his mother, Rozalina Nyigo. The accused is his brother with whom they share the father. The accused was also living in Igomtwa village with his mother in a house near their home. On the night of 01.03.2017 while sleeping with his brother (one Noel Kivamba), at home (in Igomtwa village), he heard his mother Rosalina crying and asking for help. She was saying that, Marko Kivamba was killing her. Noel went to their parents' house and found their father had been cut by a sharp object. Noel then returned back to the house they used to sleep in and closed the door. Someone pushed the door, but they held it firmly. They then fled through the window since that person had locked the door from outside. They went to Igegele hamlet to the house of one Zawadi Nyigo (PW.l) who is a local leader (da/azz in Kiswahili) of that area. Noel informed Zawadi that their parents had been killed. They also informed one Mama Kasefu on their parents' deaths. PW.7 further told the court that, Zawadi called the village chairman one Luchano Mwihava and other people who then went to the scene of the crime. The next morning he went back to his home place and found the body of his mother in a farm with cut wounds. The wounds appeared to have been caused by a sharp object. His father's body was lying in a bed. It also had cut wounds caused by a sharp object. On 02.03.2017 he heard that the accused had been arrested. Page 8 of 25 When cross-examined, PW.7 stated that, he is sure it is the accused person who murdered his parents because his mother (Rozalina) was heard saying that Marko Kivamba was killing her (i. e. Marko Kivamba ananiua in Kiswahili). He also believed that it was the accused who had also murdered his father since the wounds on the body of his father, Matei resembled those on the body of his mother, Rozalina. Upon the closure of the prosecution case, this court, under section 293(2) of the CPA, made a ruling which found the accused with the case to answer regarding both counts. It accordingly informed him of his rights under such provisions. The accused, upon consulting with his counsel opted to give evidence on oath without calling any other witness apart from himself. The sworn defence of the accused person was basically that, he is a peasant living at Igomtwa village. On 1st March 2017 he was at Mafinga police station where he had been arrested on some allegations. He was arrested at Ugesa village when he was going to assist his friend in farming. He was arrested at 5:00 am by militia men (mgambo au sungusungu in Kiswahili) because, they don't permit people to walk at night. He was then kept under the custody until when the Village chairman of Igomtwa, one Luchano Mwihava accompanied by other two young men went to take him from Ugesa village offices. The accused further testified that, he was then taken to the village office at Igomtwa where he was interrogated on the murder incident. He replied to the interrogations that, he knew nothing on the events. He also Page 9 of 25 told the court that, he did not know Matei Kivamba and Rozalina Nyigo. Later on he said, they were his relatives, but he knows nothing on their deaths. When examined by the court (assessors), he said that, he was arrested with a bicycle, a machete and other things. Upon the closure of the trial, both sides of the case opted to make oral final submissions. In his final submissions in-chief, Mr. Alfred learned counsel for the accused contented that, the prosecution did not prove the case against the accused beyond reasonable doubts. He further argued that, there were contradictions on the dates of the event and of arresting the accused. PW.5 for example, said the accused was arrested on 1st March, 2017. However, PW.l, PW.4 and PW.6 said the events occurred on the 2nd March, 2017. The discrepancies leave doubts on the prosecution case. He based his contention on the decision by the Court of Appeal of Tanzania (the CAT) in the case of Michael Haishi v. Republic [1992] TLR. 92. He also added that, no prosecution witness said he/she saw the accused killing the two deceased persons. Their evidence was thus, not direct as required by section 62 of the Evidence Act, Cap.6 RE. 2019 and was based on suspicion. The defence counsel also challenged the evidence of PW.7 saying that, he did not produced any evidence to show that the dying declaration by Rozalina, that the accused was killing her was true. He further argued that, one Noel Kivamba, mentioned by PW.7 as his brother was a key prosecution witness in the case at hand. This is because, PW.7 said, he was the one who had gone to the house where the two deceased persons were sleeping to find out what was happening to them at the material time. However, Noel was not invited as one of the prosecution witnesses. This creates doubts to Page 10 of 25 the prosecution case and may suggest that, he (Noel) was the killer of the two deceased persons. Additionally, the learned defence counsel argued that, the failure by the prosecution to produce in evidence the alleged sharp object which might have caused the cut wounds to the deceased bodies also created doubts. It was the prayer by the defence counsel therefore, for this court to acquit the accused person. In her replying submissions, the learned SSA for the republic contended that, the prosecution had proved the case beyond reasonable doubts. This is because, it paraded 7 witnesses and produced exhibits. The exhibits included the two post-mortem reports of the two deceased persons showing that they suffered a violent death. The 7 witnesses gave direct evidence on the way the accused was arrested and how he admitted to have committed the offence before different persons. In law, admissions to other persons is acceptable evidence against the person who makes the same. She cited the precedent by the CAT, i.e. the DPP v. Nuru Mohamed Gulamrasul [1988] TLR. 82 to cement the argument. The contradiction of dates among the prosecution witness should not be considered against the prosecution case since it was elaborated by PW.5 that, the violent deaths occurred in the night between 1st and 2nd of March, 2017. The learned SSA also submitted that, though no prosecution witness said he/she saw the accused killing the two deceased persons, there is evidence by PW.3 Qustice of peace) that, the accused confessed before her to have committed the two offences. In his extra-judicial statement, the Page 11 of 25 accused also confessed to have killed the two by using a machete. He also admitted during the trial within trial that he killed them. It was also argued by the learned SSA that, the prosecution has established the ingredients of murder as underlined in the case of Waziri Amani v. Republic [1980] TLR. 250. In that precedent, she contended, the CAT held that, in proving malice aforethought as an ingredient of murder, the court has to consider some factors including the kind of weapon used and the part of the body assaulted. In the case at hand the accused used a machete. The learned SSA thus, urged this court to find the accused guilty as charged and convict him accordingly. In his rejoinder submissions, the learned defence counsel reiterated the contents of his submissions in chief. He added that, the fact that the two post-mortem reports for the deceased persons showed that they died due to cut wounds, did not alone prove that the accused used a machete to kill them. The court then made a summing up of the case to the assessors in court as required by the law. The three assessors unanimously opined that, the accused was guilty of both counts. This was due to the tight evidence from the seven prosecution evidence and the exhibits so tendered. I have considered the evidence adduced by both sides, the respective submissions and the law. In my view, the following facts are not in dispute: that, the said Matei s/o Kivamba and Rozalina d/o Nyigo died in the night of Page 12 of 25 material date. They in fact, suffered a violent death of being slashed on different parts of their bodies. It is also not disputed that, PW.2, Dr. Kiyeyeu medically examined the two dead bodies on the 2nd March, 2017. He noted that, the cause of their respective deaths was Hypovolaemic Shock caused by severe head injury and bleeding. The injuries were due to cuts by a sharp object. The cause of death was thus, as shown in the two post-mortem reports for the two deceased (exhibits P.l and P.2). One thing to note here is that, PW.2 said he examined the body of "Mathew Kivamba," but the first count and the prosecution evidence shows that the deceased was "Matei Kivamba." However, the generality of the evidence from both sides shows that these names refer to the same deceased person mentioned in the first count. It is more so considering the fact that, even in the preliminary hearing, the accused admitted that he was son of that said Matei Kivamba. Again, the prosecution evidence showed that, the PW.2 in fact, at the material time and place, examined two dead bodies. One was of a female person while the other was of a male persons called Matei Kivamba. Furthermore, the defence did not claim anywhere that the two names belonged to two deferent persons. The discrepancy regarding those names does not therefore, change the undisputed fact that Matei Kivamba was the person referred to by the PW.2 in his evidence and in his post-mortem report as "Mathew Kivamba." In the case at hand, the accused stands charged with two counts of murder as shown earlier. I will however, discuss the two counts cumulatively because, according to the nature of the evidence adduced by both sides, it is clear that the same evidence covers both counts at a time. The major issue here is therefore, whether or not the accused person murdered both Matei Page 13 of 25 Kivamba and Rozalina Nyigo as charged under the first and second count respectively. In proving the offence of murder under section 196 of the Penal Code (under which the accused is charged in both counts), the prosecution must cumulatively establish the following three major ingredients beyond reasonable doubts. a. That, it was the accused who actually caused the death of the deceased or killed him/her, b. That, the killing of the deceased by the accused was with malice aforethought. c. That, the killing was by committing an unlawful act or omission. I will now test if the prosecution side in the case at hand proved the three major ingredients of the offence of murder listed above. I will test them one after another. In fact, the following principles of our law are trite and settled and they will guide me in the discussions: that, the prosecution bears the burden of proving a criminal case like the one at hand beyond reasonable doubts. The accused bears no duty to prove his innocence. His duty is only to raise reasonable doubt in the mind of the court. Any reasonable doubts left by the prosecution evidence should be resolved in favour of the accused person. Regarding the first ingredient of the offence of murder the sub-issue is whether or not the accused killed both Matei Kivamba and Rozalina Nyingo. In my view, the circumstances of the case attract an affirmative Page 14 of 25 answer to this sub-issue. This is due to the following reasons: that, though no prosecution witness testified that he saw the accused killing the two deceased persons, there is the dying declaration by Rozalina on the material date and time that the accused was killing her. This declaration was heard by the PW.7 (Maselino) who knew well the voice of his own mother. He thus, believed the declaration to be true. In his submissions, the learned defence counsel challenged this evidence contending that, the PW.7 was not sure as to whether the declaration was true. I may agree with him, but indeed, this declaration is the actual piece of evidence which led the PW.7 and his brother (Noel, who did not testify in court) to report the accused to PW.l (Zawadi). Upon PW.l reporting the matter to various village authorities, the accused was arrested in another village (Ugesa village). The prosecution evidence also shows that, upon his arrest, the accused admitted to have killed both deceased persons. He did so when interrogated by PW.5 (Luchano) at Ugesa village. PW.l also heard him admitting that he had committed both offences. The accused repeated the same admission when he was interrogated by PW.6 (Sgt. Elihuruma) at Igomtwa village office. This admission was also heard by PW.l (Zawadi), PW.4 (Richard) and PW.5 (Luchano). Furthermore, there is evidence by PW.3 (Felista), the justice of peace. It showed that, the accused confessed before her that he had killed both Matei and Rozalina by cutting them with a machete. This was due to grudges arising from land disputes. This fact was also supported by the extra-judicial statement itself (exhibit P.3) he made before the PW.3. In fact, the accused himself admitted before this court during the Page 15 of 25 TWT that, he in fact told the PW.3 that he had killed the two deceased persons. He added that, it was true that he had killed them. Indeed, the confession by the accused before the PW.3 that he had killed the two persons by a machete tallies with the evidence by PW. 1, PW.2 (Dr. Kiyeyeu), PW.4, PW.5, PW.6 and PW.7 that, the two deceased persons had been wounded by a sharp object. In my settled view, ordinarily a machete has a sharp end. It is more likely therefore, that it was used to slash the two victims under discussion. It follows thus, that, the contention by the learned counsel for the accused against the dying declaration was not forceful enough to make the declaration useless. Besides, the law guides that, it is possible for a conviction to proceed upon evidence consisting of a dying declaration only, although it is a rule of practice that a dying declaration requires corroboration before it can be acted upon: see the case of Republic, v. Mohamed Shedaffa and three Others [1984] TLR 95, by the High Court of Tanzania (the HCT). In the case at hand, the above narrated evidence of confession and admissions by the accused are capable of supporting the dying declaration that, it was the accused who in fact killed Rosalina, the maker of the declaration. Furthermore, since the death of the said Rozalina and that of Matei occurred simultaneously and through the same manner of being slashed by a machete, and following the confession and admissions by the accused discussed above, it is inevitable to hold that it was the accused person who killed both of them. Page 16 of 25 Furthermore, in law, a confession alone, even when it is disputed like the one discussed above, can support a conviction. The CAT in the case of Hatibu Gandhi and Others v. Republic [1996] TLR 12 held that, a conviction on a retracted uncorroborated confession is competent if the court warns itself of the danger of acting upon such a confession and is fully satisfied that such confession cannot, but be true. Oral admissions can also base a conviction in our law as rightly contended by the learned SSA for the Republic basing on the DPP v. Nuru case (supra). It has also been underlined by the CAT that, oral confessions or admissions by a suspect before a reliable person/s, be they civilians or not, may be sufficient, by itself, to found a conviction against the suspect, if the suspect was a free agent when making it; see the case of Godfrey Sichizya v. DPP, Criminal Appeal No. 176 of 2017, CAT at Mbeya (unreported) following Martin Manguku v. Republic, Criminal Appeal No. 194, CAT (unreported) and Akili Chaniva v. Republic, Criminal Appeal No. 156 of 2017, CAT, at Mbeya (unreported). It follows thus that, even if the dying declaration by Rozalina did not exist or was not true, still the prosecution case could not be shaken following the confessions and admissions made by the accused. In his submissions, the learned defence counsel also tried to fault the prosecution case on the contradictions on the dates of the event and arrest of the accused. He argued that, some prosecution witnesses said it was on the 1st of March, 2017. However, others said it was on the 2nd of March, 2017. On my part, I do not take such contradictions as serious. This is because, as rightly contended by the learned SSA for the Republic, Page 17 of 25 it was more likely for the prosecution witness to face such minor discrepancies on the date since the event occurred during the night between the 1st and 2nd of March, 2017. Besides, more than 5 years have lapsed from when the event occurred (in March, 2017) to when the witnesses testified (i. e. in November, 2021). It is common knowledge that naturally, human memories are subject to fading with the lapse of time. This court is entitled to presume this fact under section 122 of the Evidence Act. These provisions of law guide that, a court may infer the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. The contradiction under discussion was thus, not lethal to the prosecution case. Owing to this reason, I distinguish the Michael case (supra) cited by the learned defence counsel. Again, the argument by the learned counsel for the accused that the failure by the prosecution to call Noel, the brother of PW.7 to testify weakened the prosecution case, is lame. This is because, the above narrated evidence adduced by the prosecution, plus the confession and admissions by the accused, sufficed to show that the accused killed the two victims. It was thus, not so necessary to call Noel as prosecution witness though he could be among key witnesses. The law is not in favour of the idea of calling each and every prosecution key witness for supporting a criminal charge. It suffices only to prove the ingredients of the offence by few witness. This is because, in law, evidence is not counted, but weighted. For this reason, section 143 of the Evidence Act, Page 18 of 25 guides that, no particular number of witnesses shall in any case be required for the proof of any fact. The learned counsel for the accused also challenged the prosecution case for not producing the machete used to kill the two victims. In my view, this contention is also untenable. This is because, the omission is inconsequential in the case at hand. Owing to the confession and admissions by the accused, considered together with the two post­ mortem reports, it is sufficiently established that the killing was by a machete whether produced in court or not. It is more so considering the evidence of PW.l, 2, 4, 5, 6 and 7 who witnesses the bodies of both victims being cut by a sharp object. In my view, though it is true that failure to produce an exhibit may weaken a prosecution case in some instances, that is not a legal principle which may apply blindly in every case. Evidence for proving a material fact may, in law be oral, written or in a form of an object (exhibit or material thing) like a machete. It follows thus, that, where other forms of evidence proves a fact in issue in a required standard, that failure by the prosecution to produce an exhibit cannot weaken its case. In other words, it is not mandatory that in every case exhibits (i.e. evidence in form of objects or material things) must be produced. This is in fact, the spirit embodied under section 62(2) of the Evidence Act. These provisions guide that, if oral evidence refers to the existence or condition of any material thing other than a document, the court may, if it thinks fit, require the production of such material thing for its inspection. Page 19 of 25 Furthermore, though I agree with the learned defence counsel submissions that oral evidence is required to be direct as per section 62 of the Evidence Act, I do not agree with him that this means that evidence must always be of red-handed nature in proving a fact as he apparently wanted to envisage. It must be noted that, even circumstantial evidence may effectively prove a material fact in issue. The law on circumstantial evidence guides that, for a conviction to stand, circumstantial evidence must be water tight, leaving no other interpretation apart from the guilty of the accused; see Justine Nyari and another v. Republic, criminal appeal No. 37 of 2006, High Court of Tanzania (HCT), at Arusha (unreported). As also discussed earlier, confessions and admissions are equally good evidence against the maker. I thus, also discard the contention by the learned defence counsel just mentioned above. I am also live that, in our law every witness is entitled to credence in his/her testimony and must be believed by the court unless there are cogent grounds for not believing him or her; see the CAT decision in Goodluck Kyando v. Republic, Criminal Appeal No. 118 of 2003, CAT at Mbeya (unreported). In the case at hand, there is no reason to disbelieve the evidence of the seven prosecution witnesses demonstrated previously. The defence side did not also adduce one. It is more so considering the accused's own confession and admissions. Besides, witnesses like PW.l (Zawadi) and PW.7 (Maselino) were undisputedly bloodily related to the accused himself. There was, nevertheless no reason offered by the defence as to why they could tell lies against the accused, their relative. The prosecution case was thus, authentic. Page 20 of 25 The accused defence, on my part was a mere denial which cannot be a good defence in law. It is more so due to the sufficient prosecution evidence discussed above. Indeed, the accused tried to be evasive in his defence by even showing that he did not know the two deceased persons. But later, he said they were his mere relative. This step was contradictory to the facts he had admitted during the preliminary hearing that Matei Kivamba was his own father and Rozalina Nyigo was his stepmother. This trend cements that his defence was a mere concoction. Again, his defence that he was arrested when he was going to assist his fried in farming cannot be believed amid his confession and admissions discussed earlier. Had that story being true, he would have explained so to the authorities that interrogated him as soon as he was arrested. Instead of giving that story, he admitted to them and later confessed as demonstrate previously. His defence was thus, an unbelievable and afterthought story which cannot be accepted by this court. I therefore, reject his defence and I find that, it did not raise any reasonable doubt in his favour. Having observed as above, I answer the first sub-issue related to the first ingredient of murder affirmatively that, in fact, it was the accused person who killed both Matei Kivamba and Rozalina Nyigo. This answer calls for the examination of the second ingredient of the offence of murder. Regarding the second ingredient of murder, the sub-issue is whether or not the accused's act of killing both Matei Kivamba and Rozalina Nyigo was performed with malice aforethought. In my view, malice aforethought, is usually formed and retained in the mind of a Page 21 of 25 person killing another person. Its existence cannot thus, be easily detected by a court, unless it considers the killer's express words (if any) or evidence on his/her conduct. The court is entitled to presume these facts under section 122 of the Evidence Act discussed previously. In the case at hand, the conduct of the accused compels this court to answer the sub-issue under this heading affirmatively. This is because, in the first place, as rightly argued by the learned SSA for the Republic, the accused used a sharp object, a machete to slash the two victims. A machete is in fact, a deadly weapon when applied upon a human body. He also aimed at the deceased persons' respective heads and other parts of the body. A head of a human being is indeed, a very delicate part of the body. The accused did not also strike only one cutting to each victim. He caused multiple wounds to them. Besides, his confession shows that, he had planned to kill the two victims because, he got out of his home with the machete and planned to do so at the night when it could be difficult to be identified. Furthermore, the accused's malice aforethought is enhanced by his confession and admissions that he had killed the two deceased persons following grudges arising from land disputes among them and the fact that Matei Kivamba, had taken his money forcibly. This fact shows therefore that, the accused killed the two deceased persons for a revenge. It is also my view that, killing both deceased persons at a time is a good sign of his malice aforethought. He also pursued Rozalina Nyigo from the house to the farm where he eliminated her. Furthermore, there is evidence by PW.7 (Maselino) that, the accused also went to the other Page 22 of 25 house where the two boys (i.e. PW.7 and Noel) of the two deceased persons were sleeping and forcibly pushed the door to get in. The boys however, successfully held the door firmly in resistance. One does not know what he could have done to the boys had the door opened. However, his bad intention is demonstrated by his act of closing the door from outside while the two boys were therein. This implies that, the accused did not want the boys to give any help to the two deceased persons whom he had already injured. All the above narrated acts constituted the accused's conduct which point out on how he had intended to ensure that his avenging mission was effectively completed, hence his malice aforethought. Owing to the above reasons, I also answer the second sub-issue regarding the second ingredient of murder affirmatively that, the accused's act of killing Matei Kivamba and Rozalina Nyigo was, in fact, performed with malice aforethought. I will now consider the third and last ingredient of murder. Concerning the third ingredient, the sub-issue is whether the deaths of both Matei Kivamba and Rozalina Nyingo were caused by the accused through committing an unlawful act or omission. In my view, since I have held above that the accused killed the two victims with malice aforethought in an avenging mission, it cannot be said that he did so lawfully. In fact, he took the law at hand and eliminated the lives of the two deceased persons. He was not justified to do so even if it is presumed (without deciding) that, the two deceased persons had actually wronged Page 23 of 25 him. The accused's only remedy would have been to take legal steps against them and not to kill them as he did. The law also makes it illegal for a person to assault another, let alone assaulting such other person by a deadly weapon like a machete: see for example, sections 240 and 241 of the Penal Code which makes it unlawful for a person to commit common assault or assault causing actual bodily harm respectively to another person. Due to the above reasons, I determine the third sub-issue on the third ingredient of murder affirmatively that, the deaths of both Matei Kivamba and Rozalina Nyingo were caused by the accused through committing an unlawful act, being assaulting them by a machete. Having found that all the three major ingredients of the offence of murder were proved by the prosecution, I answer the major issue posed above affirmatively that, the accused person in fact, murdered both Matei Kivamba and Rozalina Nyigo as charged under the first and second count respectively. The prosecution thus, proved the charge against him beyond reasonable doubts. I consequently find the accused guilty as charged and I accordingly convict him of murder under both counts, contrary to sections 196 and 197 of the Penal Code. It is so ordered. Date: 29/11/2021 Coram: JHK. UTAMWA, J. For Republic: Ms. Twide Mangula, SSA. For Accused: Messrs Lazaro Hukumu and Alfred Stephano, advocates. Accused: Present. B/C: Gloria Assessors: Mr. P. Haule, Mr. E. Malya and Ms. A. Kilufi. Court: Judgement delivered in the presence of Ms. Twide Mangula (SSA) for Republic, the accused, Messrs Lazaro Hukumu and Alfred Stephano, advocates for the accused, and the 3 assessors in court this 29th November, 2021. Page 25 of 25