LAMECK MPEMBE MWANALOYA CRIMINLA SESSION NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUMBAWANGA DISTRICT REGISTRY AT SUMBAWANGA CRIMINAL JURISDICTION SITTING AT SUMBAWANGA CRIMINAL SESSION NO. 98 OF 2022 REPUBLIC VERSUS LAMECK S/O MPEMBE @ MWANALOYA JUDGMENT 19/09/2024 & 08/11/2024 MWENEMPAZI, J. The accused person named herein is charged with the offence of murder contrary to section 196 and 197 of the Penal Code, [Cap 16 R.E 2019]. It is alleged by the prosecution that on the 6th day of July, 2022 at Namansi Village Mashambani Area Within Nkasi District in Rukwa Region, the accused person did murder one Maria d/o Thomas @ Kisia. 1 When the charge was read over and explained to the accused person in Swahili language, which language the accused is conversant with and understands well, he denied that he committed the offence. At the preliminary hearing conducted under section 192 of the Criminal Procedure Act the facts constituting the offence were read over and explained to him; when he was asked to state whether they are true and correct, he admitted to the following: his names, that at the time the event occurred, he was living at Namansi Village, mashambani area and that he has been arrested and charged with the offence of murder contrary to section 196 and 197 of the Penal Code, [Cap 16 R.E 2019]. As the result of all what has so far transpired the prosecution are therefore duty bound to prove their allegations against the accused person. This is by way of a full trial of the case. At the hearing, the prosecution was being led by Ms. Xaveria Makombe, Learned Senior State Attorney being assisted by Mr. Jerinus Mzanila, Learned State Attorney and defence was being manned by Mr. Samwel Kipesha, Learned Advocate. The prosecution called five witnesses and two exhibits were tendered in order to prove the allegations and or charges 2 against the accused person. The accused testified himself and no exhibit was tendered. Hearing of the case commenced with the testimony of Reginaldo John Kayanda (PW1). He testified that he is a resident of Mkomachindo and in 2022 he was at Namansi Village, where he was working at the farm belonging to Reginata Mwanakatwe. The latter also testified as PW2. There is a difference in names, I believe, the witness, PW1 did not know the name of the farm owner, however, he was correct in the surname. PW2 is the owner of the farm the witness was working in. Back to the story of PW1, he testified that in the farm they were four of them. The other colleagues were Oresti Pesambili, James s/o? Lameck s/o Mpembe and his wife Rozalia wife of Lameck testified as (PW4 with the name Rozalia d/o Herman Nkalasa) and at the time of testifying she was married to another man, named Michael s/o Katonkola. At the time of their stay at the farm, PW1 and his colleagues Oresti s/o Pesambili and James s/o? were staying in one camp situate a little bit distant place from where Lameck s/o Mpemba was staying. In the testimony of PW1 the camps were separated five minutes walk distance. 3 The event in this case was uncovered at the scenario where Rozalia wife of Lameck was sick. Lameck s/o Mpemba (the accused) was in the move to take her to hospital. The situation escalated into an urgency in the noon hours as they were constructing a camp. She started feeling bad that is when accused decided to take her to hospital. However, at their homestead, their camp they were staying with a little child, Maria d/o Thomas @ Kisia (now deceased). She is the daughter of Rozalia wife of Lameck with another man. As they were moving out of their home heading to hospital, they passed through the camp where PW1 was staying with other labourers, James s/o? and Oresti s/o Pesambili. He asked for the assistance to take his wife to hospital. That is when PW1 criticized the couple that they ought to have taken the child with them. PW1 asked his colleagues each at a time, to go and take the child. Both of them refused. PW1 decided to go to the camp where Lameck and his wife were staying. When he went there, he found the baby lying still. He discovered she was dead. He ran towards his colleagues. He testifies that the accused had a look showing he might have figured out that the secret 4 has been uncovered. He was about to ran away that is when PW1 told his colleagues to apprehend the accused and the accused was put under guard. PW1 went at another nearby camp, borrowed a phone and called the chairman of Namansi Village to inform him of the event and the latter promised to inform the police. PW1 went back to his colleagues, left them with accused, he boarded a bodaboda with accused’s wife heading for hospital. He instructed his colleagues to go back to the accused’s camp so that he killed the cleared baby to police, PW1 went with PW4 to the hospital where she was treated and later they joined others at the police station. In general, when PW1 went to the camp where Lameck s/o Mpembe and his wife were staying, he found the baby Maria d/o Thomas @ Kisia lying on the mat in the room, she was still, he uncovered the bed sheet, ants were entering the mouth and nostrils. She was dead. When he went back to his colleagues, as he approached them, Lameck s/o Mpembe was about to run. When he was cross examined by the defence counsel, Mr. Samwel Kipesha, he testified that before going to the accused’s camp, the accused told PW1 5 that the baby was sleeping. But when he went there he found the baby is dead. However, he testified that Lameck s/o Mpembe never told him that he has killed Maria. Very clearly, he testified that nobody witnessed him kill Maria d/o Thomas @ Kisia. The environment at the camp was not that good but habitable. It was easy for him to enter the camp. The camp where Lameck and his wife were staying is at a distance of ten (10) minutes walk for a go and return trip from where PW1 and his colleagues were staying. It is only PW1 who went there; PW1 did not find any person at the camp although he refrained commenting that any person may enter at the camp. Editha d/o Fredrick @ Mwanakatwe (PW2) is the owner of the farm where the accused and his wife, as well as PW1 were working. On the date at noon ours she decided to go to her farm for a visit. On the way she met a bodaboda carrying Rozalia and PW1. She stopped them. PW1 told her that at the farm there is a problem. A child has been killed. It is the daughter of Rozalia d/o Herman @ wife of Lameck. Erick (accused person) is the suspect. She returned to the village and went to the police where the accused (then a suspect) was sent as well. 6 At the police they inspected the body and then she was assigned a duty to take the body to the mortuary at Kirando Health Center. On the 07/07/2022, PW2 was called and together with Rozalia wife of Lameck, the accused and herself they went to the scene of crime. When the accused was interviewed, he said he has killed the child, Maria d/o Thomas. He strangled her, the child defecated, he undressed her panties and hanged them on the wall. At the time he had left his wife somewhere along the way to the PW1’s camp. The accused pointed to the police where he had left the wife and executed his plan to kill the baby. PW2 testified that on the same date 07/07/2022 they then left Namansi and went to the Kirando Health Centre where they were required to identify the deceased. It was PW2 and PW4 who identified the deceased’s body. PW4 is the mother of the deceased. Then post mortem examination was conducted by the doctor, PW3 Catherine Tumaini Kimaro. She testified that she examined the body head to toe, it was cold and stiffness of the muscles had started to occur. She estimated that death may have occurred within 28 – 32 hours. This is by observation. In her findings the “deceased was cyanosed and clothes were 7 stained with faeces notable at the buttocks and loosening of the neck seen but other findings were intact”. In her opinion cause of death was Brain Hypoxia secondary to suffocation due to strangulation of the neck. The findings were recorded in the report on post mortem examination (Form D). This form has been challenged by the defence counsel. That it contravenes section 13 of the Inquest Act, [Cap 24 R.E 2019]. Looking at item 3 of the objection at page 13 of proceedings and the 1st paragraph, the defence meant the examination was not authorized by the coroner. In my opinion, though item/1) of Form D was filled in an error by naming the clinical officer who examined the body, the contents would have remained to be the same even if the coroner will be named; and they reflects what transpired at the hospital as per PW1, PW2, PW4 and PW5. I find the content did not prejudice the accused persons. Rozalia d/o Herman Nkalasa is the mother of the victim, the deceased herein. At the time the event occurred she was married to Lameck s/o Mpembe. They were living and working in the farm belonging to PW2. The deceased, Maria Thomas Kisia was 11 months old and they were living together at the camp. On the material date she was feeling sick, the 8 accused cooked porridge. The child drunk as the mother, PW4, did not feel like eating. She had no appetite. She asked Lameck s/o Mpembe to take her to hospital also to carry the child for her. He denied, he said he will carry her (PW4) and when they arrive at the neighbor’s camp, he will ask them to go back and carry the child. Then the witness testified that as they were going, at one point the accused laid her on the ground, told her he was going back for the child but he came back without her. He said he has postponed he will ask neighbors to go back to take the child. That is when they went to the camp where PW1 was staying with other colleagues. There he asked for help from PW1 to take PW4 to hospital/dispensary. PW1 insisted to take the child unfortunately when he went there he found the child is dead. It is in record, PW4 did not say the time which was spent by the accused when he left her lying on the ground. PW5, G6216 Cpl. Masunga recorded the cautioned statement of the accused. He was also an investigator of the case. After he had been assigned to record the caution statement he followed all the procedures by taking the suspect to the interrogation room, announcing to him his rights 9 and securing his volition, he recorded the statement which was admitted as exhibit P2. In it, it is recorded: “ilipofika 06/07/2022 majira ya saa za asubuhi kulikucha, mke wangu analalamika hali yake hajisikii vizuri kiafya kwani alikuwa anasiku chache zilizopita alikuwa anaumwa homa nikawa nahisi labda homa yake bado haijaisha mwilini ndio maana anajisikia vibaya basi nilikaa hapo nikimwangalia hali yake hadi muda wa saa 13:00 hours hali yake mke wangu ilibadirika na kwenda kambi jirani kwa mwenzangu kuomba msaada wa kumsaidia kumbeba kutoka kambini kwenda barabara kuu ya Namansi ndio ambapo kuna bodaboda zinaweza kutusaidia kumwaisha mgonjwa hospitali baada ya kwenda kuomba msaada huo nilirudi kambini kwangu na kumuandaa mke wangu tulitembea naye kama mita 86 hivi mke wangu alikaa chini na kuniambia kuwa hawezi kwenda mbali hivyo bila kuondoka na mtoto wake huku porini ninamuachia nani na mimi nilimjibu kuwa 10 nitamrudia tuwahi kwanza barabarani. Tupate bodaboda utangulie hospitali nitamrudia mtoto, mke wangu alikataa ndipohapo nilimwambia kuwa ngoja nimrudie nilirudi hadi kambini ndani na kumchukua mtoto alikuwa sebuleni niliingia naye chumbani na kumnyonga. Baada ya kuhakikisha amekufa nilimlaza chini na kumfunika na shuka la kimasai na kutoka nje kuelekea kwa mke wangu anayeitwa Rozalia Herman Nkalasa nilipofika kwa mke wangu aliniuliza kuwa mtoto wangu yupo wapi mbona haujaja naye nilimjibu kuwa nimemwacha muda huohuo majirani nao wakaja…”. The story above is an except from exhibit P2. The accused has also testified in defence that all what has been testified is a cooked up story by PW5 and his colleagues the police. They took him to the scene and later beat him up to force him so that he confesses. Even the signature in exhibit P2 was a way to avoid the beatings. On the date of event, 06/07/2022 he was at his home doing farm works. The hours mentioned by PW1 he was doing farm work. He says he built a house not 11 a camp. He says even his wife Rozalia was beaten to testify against him. He admitted that he was staying with them at his house as he married the mother of Maria Thomas Kisia. That was the end of evidence by both prosecution and defence. In the final submission by the prosecution, they have proposed four issues for determination: 1. Whether Maria Thomas Kisia is dead. 2. Whether her death is unnatural. 3. Whether she met her death at the hands of the accused. 4. If No. 3 is affirmative, whether the accused caused the death of Maria Thomas Kisia with malice aforethought. It is on record and in the summary of the evidence herein above that Maria d/o Thomas Kisia was found dead by PW1 when he went to take her at the time they were about to take her mother (PW4) to hospital this is confirmed by the testimony of PW1, PW2 and PW4. She died by strangulation which caused brain hypoxia due to suffocation. That also confirms that indeed, death of Maria d/o Thomas Kisia was unnatural death. As to the way death occurred is confirmed by the testimony of PW3 and 12 exhibits P1. The pointed areas an answers the first and second proposed issues which are resolved in an affirmative. The remaining issues will take us to land at the point where the whole puzzle will be resolved. The third issue is whether the accused person is responsible for the death of the Maria d/o Thomas Kisia. We have been following up the story as narrated by the prosecution witnesses. Clearly one can follow through the course of testifying that nobody has testified that he saw who exactly killed Maria Kisia. However, it is in record that PW2 and PW5 heard the accused implicating himself at the scene and also when he was recording his cautioned statement. The accused however, in his defence has denied to have freely made the statement but at a coercion through beating by PW5 and his colleague. That evidence has an effect of retracting what was once seen to be a clear and direct evidence from the accused himself as a confession. The prosecution in the final submission have stated that according to the testimony by PW2, PW4 and PW5 while they were at the scene area the accused person, who was a free agent, orally confessed to kill the deceased by strangling her on the neck and showed them the deceased’s 13 underwear which she was wearing at the time of her death and the same had faeces. They have referred to the case of Alex Ndendya Vs. Republic, Criminal Appeal No. 207 of 2018, Court of Appeal of Tanzania at Iringa at page 21 that: - “Under section 3(1) (a) (b) (c) and (d) of the Evidence Act, [Cap 6] and confession to a crime may be oral, written, by conduct, and or a combination of all these or some of these. In short, a confession need not be in writing and can be made to anybody provided it is voluntarily made” . In the same case referred to herein above the court went on stating that: “…it is settled that oral confession made by a suspect, before or in the presence of reliable witnesses, be they civilian or not, may be sufficient by itself to found a conviction against the suspect”. They have argued that when the accused was making the said oral confession he was in a good condition and therefore it is enough to prove 14 that he was a free agent. It has been submitted that the accused did not cross-examine PW2, PW4 and PW5 on the issue of confessing freely before them and taking police to the scene area to show where he killed the deceased, the act which shows the acceptance of those facts as it was stated in the case of Nyerere Nyague Vs. Republic, Criminal Appeal No. 67 of 2010, Court of Appeal of Tanzania at Arusha at page 5 – 6 where it was held that: “As a matter of principle, a party who fails to cross examine a witness on a certain matter is deemed to have accepted that matter and will be estopped from asking the trial court to disbelieve what the witness said”. The counsel for defendant has submitted that the testimony of PW2 is unreliable and insufficient to warrant the conviction against the accused person. Also that the caution statement was wrongly admitted as the witness narrated the contents of what he was told by the accused during recording of the caution statement which he argues, it has contravened the law as per Paschal Ndalahwa Vs. Republic, Criminal Appeal No. 262 of 2020, Court of Appeal of Tanzania at Mwanza where it was held: 15 “…we are left with no doubt that it was quite wrong for PW7 to narrate the contents of the Appellant’s cautioned statement to the trial court before it had been cleared for admission”. I have taken into consideration the arguments by the counsel for the defendants/accused coupled with the defence evidence. Basically, the case partly relies on circumstantial evidence but also confession by the accused himself. As far as the circumstantial evidence is concerned, when the evidence by PW1, PW2 and PW4 is assessed alone, it leaves doubt that there may be possibilities of any other unknown person snicking into the residence of the accused and his wife, their camp, and kill the said Maria d/o Thomas @ Kisia. However, when the evidence by the prosecutions is considered as a whole it clearly pointing to the accused person. The accused person also confessed to have killed Maria d/o Thomas Kisia and narrated the story before PW2, PW4 and PW5 at the scene and also while recording caution statement before PW5. In the case of Halfan Rajabi Mohamed Vs. The 16 Republic, Criminal Appeal No. 281 of 2020 Court of Appeal of Tanzania at Dar es Salaam at page 13 that: “The very best of the evidence in any criminal trial is an accused person who freely confesses his guilty” Under the circumstances and reasons shown in this judgment herein above, I am without any doubt convinced that the accused is responsible for killing Maria d/o Thomas @ Kisia. The other and last question, is whether the accused person had any malice aforethought when he strangled the said Maria s/o Thomas @ Kisia. The accused person narrated what transpired in his own words, he first made sure the mother of the child is away at a distance from where the child was; then he strangled the child. In the process, the child defecated. He then took the soiled clothes hanged them on the wall. He covered up what had happened by making sure the child is laid as if she was sleeping. The narration of how he killed Maria Thomas Kisia proves the malice aforethought he had to kill her. 17 In the case of Ally Ramadhan Vs. Republic, Criminal Appeal No. 57 of 2020; Court of Appeal of Tanzania at Arusha, the court held: “Therefore the intention to cause the deceased’s death, his narration on the manner he brutally implemented his plans proves malice aforethought on the part of the appellant under the previsions of section 200 of the Penal Code. It is a settled legal position that, the least evidence in a criminal trial is a voluntary confession from the accused himself as the court observed in Paulo Maduka & Others Vs. Republic, Criminal Appeal No. 110 of 2007 [2009] TZCA 69 (28 October, 2009) TANZILII”. It is my firm opinion that the accused had malice aforethought when he fulfilled the killing of the said Maria d/o Thomas. For the reasons, I find the evidence tendered links the accused person with the killing of Maria d/o Thomas @ Kisia. He did kill with malice aforethought. The accused person is therefore found guilty and convicted 18 with the offence of murder contrary to section 196 of the Penal Code, [Cap 16 R.E 2019]. It is ordered accordingly. Dated and signed at Sumbawanga this 08th day of November, 2024. T.M. MWENEMPAZI JUDGE SENTENCE: Under section 197 of the Penal Code, [Cap 16 R.E 2019] there is only one sentence. A person conviction of murder shall be sentence to death. The accused is sentenced to suffer death by hanging. T.M. MWENEMPAZI JUDGE 08/11/2024 Right of appeal explained. 19