CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT I RINGA (CORAM: KE'REFU. J.A., MGONYA. J.A. And MLACHA. J.A.l CRIMINAL APPEAL NO. 18 OF 2022 MARKO KIVAMBA........................................ .....................................APPELLANT VERSUS THE REPUBLIC......... .................................................................. RESPONDENT (Appeal from the Decision of the High Court of Tanzania, Iringa District Registry, at Mufindi) fUtamwa. .1.1 dated the 29th day of November, 2021 in Criminal Sessions Case No. 55 of 2018 JUDGMENT OFTHE COURT 10" & 13thMarch, 2025 KEREFU. J.A.; The appellant, MARKO KIVAMBA was charged with two counts of murder contrary to section 196 of the Penal Code, Cap. 16 of the Revised Laws. His trial at the High Court was vide Criminal Sessions Case No. 55 of 2018. The information laid by the prosecution alleged that, on 1st March, 2017, at Igomtwa Village within Mufindi District in Iringa Region, the appellant did murder his biological father one Matei Kivamba and his stepmother, Rozarina Nyingo (the deceased persons). The appellant pleaded not guilty to the charge. However, after a full trial, he was convicted and sentenced to suffer death by hanging. To establish its case, the prosecution paraded a total of seven witnesses and tendered four documentary evidence, namely, the two postmortem examination reports (exhibits PI and P2 respectively); the appellant's extra-judicial statement (exhibit P3) and the sketch map of the scene of crime (exhibit P4). The appellant relied on his own evidence as he did not call any witness. In a nutshell, the events leading to the appellant's arrest and subsequent conviction began around 22:00 to 02:00 hours in the night of 1st March, 2017. At that particular time, Matei Kivamba and his second wife, Rozarina Nyingo, the deceased persons, were sleeping in their main house while their two children, Noel Kivamba and Maselino Kivamba (PW7), were sleeping in the other house in the same compound. Suddenly, PW7 heard noises made by their mother Rozarina shouting for help while screaming 'M arko Kivamba you are killin g m e.' It was the testimony of PW7 that, after the said noise, his brother Noel went out to the house of their parents to see what was happening. When he came back, he told PW7 that their father had been cut by a sharp object. He immediately, closed the door of their room, as someone was trying to push it open. PW7 stated further that they resisted by holding their door firmly and the said person locked their door from outside to restrict them from getting out. It was the further testimony of PW7 that, they managed to get out through a window and went to report the matter to Zawadi Lazaro Nyigo (PWi), the ten cel l leader of the Igegele hamlet , In his testimony, PWI confirmed that, on 1st March, 2017 at around 22:00 hours, while resting at his house, he was visited by Noel Ki.va.mba and PW7, the sons of the deceased persons. Noel told him that, their parents had been killed, PWI took the two boys to the Secretary of the hamlet one Phillimon Ngimba who informed Luchano Gwido Mwihava (PW5), the Village Chairperson of Igomtwa Village about the murder incident. PW5 called the members of the Village Security Committee, namely, Richard Mandili (PW4), the Village Executive Officer; Mashaka Kalinga, Elia Mali and Samson Ngimba. They all went to the scene of crime together with the two boys. Upon reaching there, they found the body of Matei Kivamba lying on the bed bleeding. He had cut wounds on his head, hands and other parts of the body. They also saw the body of Rozarina Nyingo lying on the ground in a farm surrounding the house. It had also cut wounds on the head, hands and legs. PW1 went on to state that, the two boys informed them that their parents were killed by the appellant, their sibling, whom they share the same father but different mothers. PW5 made phone calls to other local leaders of the neighbouring villages requesting them to arrest any person who will be seen escaping. The appellant was then arrested at Ugesa Village (six kilometers from Igegele hamlet). The entire team went to Ugesa Village where they found the appellant under custody. Upon being interrogated by PW5, he admitted that he killed the deceased persons by cutting them with a machete over a land dispute/ as his father could not allow him to cultivate his farm due to a bad advice given by his stepmother. They then took the appellant to Igomtwa Village's Office and PW4 reported the matter to police at Mafinga Police Station. In the next day, i.e 2nd March, 2017, the police officers went to the scene of crime together with Dr. Venance Cosmas Kiyeyeu (PW2). In their testimonies, PW4 and PW5 supported the narration by PW1. Specifically, PW5 added that, apart from admitting before them that he committed the offence, he also heard the appellant confessing before the police that he murdered his parents. No. E. 6508 SGT Huruma (PW6), the investigation officer, testified that, on 2nd March, 2017 at around 01:00 to 02:00 hours, while at Mafinga Police Station, he was informed about the incident. PW6 together with other police officers and PW2 went to Igomtwa Village where they met PW4 who took them to the scene of crime. It was the testimony of PW6 that, at the scene, they found the dead body of a male person lying on the bed with cut wounds and surrounded with blood. They also saw another dead body of a Jady in the nearby farm outside the house, surrounded with blood. PW6 prepared a sketch map of the scene of crime which was admitted in evidence as exhibit P4. An autopsy on the deceased's body was conducted by PW2, who concluded that the cause of death was hypovolaemic shock due to big cut wounds on the deceased persons' scalps. The two postmortem reports to that effect were admitted in evidence as exhibits PI and P2 respectively. Subsequently, on 3rd March, 2017, No. F. 8087 D/CPL Ally brought the appellant to Felista Gerald Kessy (PW3), the then Justice of Peace and a Resident Magistrate who was stationed at Mafinga Urban Primary Court, to s record his extra-judicial statement (exhibit P3). In her evidence, PW3 testified that the appellant confessed to have killed the deceased persons due to the Sand dispute among them. In his defence, the appellant dissociated himself from the accusations levelled against him. He contended that, he was arrested on 28th February, 2017, because he was walking at night. That, he was informed by the militiamen men, who arrested him that, the village rules do not permit people to walk at night. He stated further that in the morning of the following day, PW5 together with other people came and took him to Igomtwa Village. DW i stated further that, he told them that he knew nothing about the murder incident. He also told them that the deceased persons were his mere relatives. At the end of the trial, the learned trial Judge was convinced that the case against the appellant was proved to the required standard. Specifically, the learned trial Judge places much reliance on the evidence of PW7 which was corroborated by PW1, PW3, PW4, PW5 and PW6 who heard the appellant confessing to have killed the deceased persons together with the evidence of PW3, who recorded the appellant's extra-judicial statement and 6 the appellant's confession (exhibit P3). Thus, the appellant was convicted and sentenced as indicated above. Aggrieved by both, the conviction and sentence, the appellant has come to this Court armed with six grounds of appeal, first, that, the evidence of PW7 was unreliable as he did not witness the appellant committing the offence; second, the learned trial Judge erred in law and fact to convict the appellant based on the evidence of PW1 who was informed about the incident by PW7 and one Noel who at the material time were not together with the deceased persons; third, the learned trial Judge erred in law to rely on the extra-judicial statement (exhibit P3) which was improperly admitted in evidence; fourth, the visual identification of the appellant by PW7 at the scene of crime was not water tight; fifth, that, the learned trial Judge erred in law and fact to convict the appellant based on suspicions; and sixth, the appellant's defence evidence was not considered. When the appeal was placed before us for hearing, Mr. Cosmas Charles Kishamawe, learned counsel who entered appearance for the appellant prayed to abandon the first, second, third, fourth and fifth grounds of appeal. He thus intimated that he would only argue the sixth ground. 7 On the adversary side, the respondent Republic was represented by Ms. Magreth Mahundi, learned Senior State Attorney who was assisted by Mr. Amani Kyando, learned State Attorney. At the outset, Ms. Mahundi declared the respondent's stance of opposing the appeal and intimated that, she would argue the ground of appeal in the manner proposed by his learned friend. Submitting in support of the sixth ground of appeal, Mr. Kishamawe contended that the appellant's defence was not considered. To justify his argument, he referred us to pages 103 and 104 of the record of appeal and argued that, in his defence, among others, the appellant testified that he was arrested for the reason of walking at night around 05:00 hours, while on his way to assist his friend in the farm. That, the appellant testified further that he knew nothing about the murder incident. He said, the said evidence was simply ignored by the learned trial Judge. Mr. Kishamawe was convinced that, if the learned trial Judge could have considered the appellant's defence, would have arrived into a different conclusion. Based on his submission, he urged us to allow the appeal, quash the conviction, set aside the sentence imposed on the appellant and set him free. 8 Ms. Mahundi was very brief and to the point that, the appellant's complaint that his defence was not considered is not supported by the record. It was her argument that the learned trial Judge at page 209 of the record of appeal sufficiently considered the appellant's defence and rejected it for being incapable of weakening the prosecution case as it was a mere denial. To clarify further on this point, Ms. Mahundi referred us to page 30 of the record of appeal where, during the preliminary hearing the appellant admitted that he is the son of Matei Kivamba and Rosarina Nyigo is his stepmother but during the trial at pages 103 to 104 he testified that the deceased persons were only his relatives and he knew nothing on their whereabouts. She also added, that, during the trial when PW1, PW4 and PW5 testified that the appellant confessed to have killed the deceased's person, the appellant did not cross examine them on that point. To support her proposition, she cited the case of Mawazo Anyandwile Mwaikwaja v. Republic, Criminal Appeal No. 455 of 2017 [2020] TZCA 268: [3 April 2020: TanzLII]. She then urged us to find that the sixth ground is with no merit. In conclusion and based on her submission, she urged us to find the appellant's appeal unmerited and dismiss it in its entirety. 9 In his brief rejoinder, Mr. Kishamawe reiterated his earlier submission and stressed that the prosecution case was not proved to the hilt He thus, once again, urged us to allow the appeal and set the appellant at liberty. On our part, having carefully considered the grounds of appeal, the submissions made by the learned counsel for the parties and examined the record of appeal before us, we think, the burning Issue for our consideration is whether the prosecution proved its case beyond reasonable doubt. We wish to start by stating that, this being a first appeal it is in the form of a re-hearing, therefore the Court, has a duty to re-evaluate the entire evidence on record by reading it together and subjecting it to a critical scrutiny and, if warranted, to arrive at its own conclusion of fact. See the cases of D.R. Pandya v. Republic [1957] EA 336 and Reuben Mhangwa and Another v. Republic, Criminal Appeal No. 99 of 2007[2019] TZCA 341: [30 September 2019: TanzLII]. In the instant appeal, there is no doubt that the prosecution case relied heavily on circumstantial evidence as there was nobody who witnessed the appellant committing the offence. Therefore, in resolving this appeal, we deem it pertinent to initially restate the basic principles governing reliability of circumstantial evidence as discussed in the case of Jimmy Runangaza v. 10 Republic, Criminal Appeal No. 159B of 2017 [2018] TZCA 188: [27 August 2018: TanzLII], when this Court remarked that: "In order fo r the circum stantial evidence to sustain a conviction> it m ust point irresistib ly to the accused's g u ilt (See Sim on Musoke v. Republic,. [1958] EA 715). Sarkar on Evidence, 15h Ed. 2003 Report Vo!. 1 page 63 also em phasized that on cases which rely on circum stantial evidence, such evidence m ust satisfy the follow ing three tests which are: 1) the circum stances from which an inference o f g u ilty is sought to be drawny m ust be cogently and firm ly established; 2 ) those circum stances should be o f a definite tendency unerringly pointing towards the g u ilt o f the accused; and 3) the circum stances taken cum ulatively, should form a chain so, com plete that there is no escape from the conclusion that within alt human probability the crim e was com m itted by the accused and no one e lse ." In determining this appeal therefore, we shall be guided by the said principles to establish whether or not the available circumstantial evidence in the case at hand irresistibly points to the guilt of the appellant. ii In the instant appeal, the evidence on record which the learned trial Judge used to convict the appellant is, first, the oral account of PW1, PW4, PW5, PW6 and PW7; second, his oral confession before PW5 and PW6; Third, the nature of weapon used, the amount of force he applied to injure the deceased persons and the part of the body where the harm were inflicted together with his conduct after the incident; and fourth, his own confession contained in the extra-judicial statement where he clearly narrated on how he killed the deceased persons. For the sake of clarity, we find it apposite to reproduce the relevant part in his extra-judicial statement found at page 135 of the record of appeal: "...Niliondoka kwenda nyum bani kwa mama m zazi Hikuwa saa tano (5) usiku nikakaa kwenye nyumba nyingine, Nikachukua tochi, nilim aiiza kula na kunywa utanzi kidogo, nikabadiiisha m avazi, nikachukua panga na kisu, nikaondoka biia kuaga. NHifika kwa mama mdogo (Rozarina d/o Nditu) nikaingia na kukuta m/ango haujafungwa walikuwa wamekoka moto. NiUingia bila kuwasha tochi nikaingia na kuona m tu akiwa am eiaia nikaingia chum bani na kuwasha tochi na kum uiika na kumwona baba akiwa ameiaia. N iiianza kum katakata shingoni na kichwani. NHipotoka nikasikia m tu anapiga ngolo nikam fuata na kum piga panga la kichwa usoni huku akilalam ika kuwa niwasamehe. Ndipo nikamwambia wewe ndiye uliyesababisha yote haya. N ilipohakikisha nim em m alizia, n/liosha panga na kurudi kwa baba na kumwona naye tayari, nikaona katoto kadogo kamezubaa ndipo nikaondoka zangu na kwenda kutoa taarifa kwa mama yangu kuwa nimewaua wote w aw ili ya a n i baba na mama mdogo. Nilim w eleza afunge m lango...Ndipo nikiw a K ijiji kingine nikaja kukamatwa (Ugesa) kwa kuwa Hikuwa usiku..." It is our considered view, and as rightly found by the learned trial Judge that, all these facts provide overwhelming evidence of the appellant's participation in the commission of the offence. In the case of Mohamed Haruna Mtupeni and Another v. Republic, Criminal Appeal No. 259 of 2007 [2010] TZCA 141: [4 June 2010: TanzLII], we stated that: "The very best o f the witnesses in any crim inal tria l is an accused person who freely confesses h is g u ilt" Similarly, in the instant appeal, it is our settled view that, what:is contained in the appellant's statement is the best evidence, we can have on what transpired on that fateful night. We are mindful of the fact that, in the sixth ground, Mr. Kishamawe faulted the learned trial Judge for failure to consider the appellant's defence. 13 Having perused the record of appeal, we agree with the submission of Ms. Mahundi that, Mr. Kishamawe's submission on this ground is not supported by the record, as it is apparent at page 209 of the record of appeal that the learned trial Judge adequately considered and weighed the appellant's defence against the prosecution case but rejected it. For the sake of clarity, the learned trial Judge having evaluated the entire evidence adduced before him and considered the appellant's defence evidence concluded that: " The accused defence, on m y part, was a m ere denial which cannot be a good defence in Jaw. I t is m ore so due to the sufficient prosecution evidence discussed above. Indeed, the accused tried to be evasive in h is defence by even showing that he did not know the two deceased persons. But iater, he sa id they were h is mere relatives. This step was contradictory to the facts he had adm itted during the prelim inary hearing that M atei Kivam ba was h is own father and Rozarina Nyingo was h is stepmother. This trend cem ents that h is defence was a mere concoction. Again, h is defence th at he was arrested when he was going to assist hfs friend in farm ing cannot be believed am id his confession and adm issions 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 o f giving that story, he adm itted to them and later confessed as dem onstrated previously H is defence was thus, an unbelievable and an afterthought story which cannot be accepted by this court. I therefore, reject his defence and I fin d that, it did not raise any reasonable doubt in h is favo u r” In the circumstances, we are satisfied that the learned trial Judge adequately considered the appellants defence and cannot be faulted. Therefore, Mr. Kishamawe's criticism on the findings of the (earned trial Judge is, with profound respect, without any justification. We wish to emphasize that, it is one thing to consider the defence case and it is quite another to accept it It cannot be argued that the defence was not considered merely because its version was not accepted by the trial court. See the case of David Gamata and Another v. Republic, Criminal Appeal No. 216 of 2014 [2015] TZCA 362: [7 December 2015: TanzLII], That said, we find the sixth ground of appeal devoid of merit. Consequently, and looking at the totality of the evidence, we entertain no doubt that with the available circumstances, the learned trial Judge properly held that the case against the appellant was proved beyond reasonable doubt. For the foregoing reasons, we find the appeal devoid of merit and it is hereby dismissed in its entirety. DATED at IRINGA this 13th day of March, 2025. R. J. KEREFU JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 13th day of March, 2025 in the presence of the appellant in person and Ms. Cecilia Mrisho, learned State Attorney for the Respondent/Republic also holding brief for Mr. Cosmas Charles Kishamawe, learned counsel for the appellant; is hereby certified as a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL