CRIMINAL SESSIONS CASE NO

IN THE HIGH COURT OF TANZANIA MUSOMA SUB-REGISTRY ATTARIME CRIMINAL SESSIONS CASE NO. 43 OF 2023 REPUBLIC VERSUS BARU MARWA NYAIGERA JUDGMENT 19th & 25th March, 2024 M, L. KOMBA, J,: Baru Marwa Nyaigera is accused of killing his brother of the same womb, MARIBA MARWA NYAIGERA. The killing occurred in the morning of 17/01/2023 at Kimusi Village within Tarime District. The whole story is narrated by four (4) prosecution witnesses including a child of the deceased, who was paraded as PW2. Marwa Mariba Marwa (PW2) is a child of 5 years who was with his father at their farm on the fateful day. He informed this court that his father Mariba is in the grave, the reason which make him to be in grave is because he is dead and immediately, uncontrolled, pointed a person who killed his father. He pointedaccused person who was at the dock. When he was asked how did accused killed his father, he explained that he cut his fatherat the neck by Page 1 of 14 using machete. He mentions the name of the person who killed his father is called baba Baru (baba mdogo). While explaining what happened, he testified that he was in the farm with his father and both of his father (deceased and baba Baru) were in their respective farms. When he saw accused cut his father,witness informed this court he run and called his grandmother who then called Danieland together went back to the farm and found his father is no more. During cross examination he testified that accused found his father at the farm while planting millet. He used hoe to make holes and machete for removing clay soil in the hoe. He insisted that his father and baba Baru were in good terms. The machete used to cut deceased did not belong to his father but was owned by Baba Baru. He acknowledges accused has planted glasses but, on that day, nobody stepped on it although their farms are close to each other. He insisted he was the one called his grandmother after incident and it was a single blow. Mgusi Marwa Nyaigera is the mother of accused and deceased. She testified as PW1 and informed this court that on 17/01/2023 she was at her house while sweeping and saw a child, grandchild crying and telling her that his father Mariba Marwa has been cut with machete.As the farm was not far, she Page 2 of 14 saw Mariba moving to home direction while his body was full of blood but he could not make it and fall on his way. She then saw Baru who is his son, the 5th born out of six children at the farm few steps while holding machete which had blood stains. PW2 made an alarm asking for assistance and people responded but when they saw Baru holding machete they run away. Baru then disappeared with his children who were playing at witness home. After some time, people gathered at her homestead and police emerge with a doctor. The doctor observed Mariba and confirmed he was dead. She further testified that police interrogated some people and managed to arrest Baru on the same day and was kept at Nyamwaga Police station. She confirmed that deceased and accused were in good terms. While in cross examination witness explained that deceased had a wife with six children and were living with his wife in the same compound where deceased had two houses. Accused and deceased did not shout and the deceased had one wound at the neck. She had no idea why accused cut the deceased. The body of deceased was examined by Doctor Christopher Chacha llgungo (PW3), who informed this court that the examination of the body of deceased was done at the scene on the same day. The body had a wound at the left Page 3 of 14 side of the neck and the whole body had blood and on the ground there was blood. From a look he said the wound was from a sharp object which cut main blood veins which supply blood to the heart. It was his finding that cause of death was lost of blood which cause cardiac arrest. The crime was investigated by G. 6047 Sgt Godfrey of Nyamwaga police station. Who noted the crime occurred on 17/01/2023 at the morning in Kimusi village and the accused was already arrested while at Kimusi Centre. By assistance of the mother of deceased he draw a sketch map and interrogated few people. While cross examined, this witness testified that he did not arrest accused so he is not aware of things which accused was holding. At scene there was a pool of blood at the place where the deceased was found. He informed this court that accused recorded extra judicial statement to justice of piece which was not tendered and he did not tender the said machete which was used to cut deceased. Upon this court rule out that accused has a case to answer, the accused entered his defence under oath and he was the only defence witness DW1 (Baru Marwa Nyaigera). He testified that on the fateful day he was at home in the morning and decided to go his farm where he found his brother Mariba Page 4 of 14 stepping on the demarcation of their farm, the demarcation was planted glasses. Accused further testified that he decided to put glasses on it original position and Mariba hit him on ribs with a hoe. After that attack he run for the machete which was like 5 footsteps from where they stood. By then accused had machete on his hand and deceased had a hoe. DW1 informed this court that Mariba hit himself on machete which was on accused hand. After that incident, accused went to his uncle Mwita Wayangi who is staying at Kimusi center and is where he was arrested on the same day. After arrest he was taken to Nyansinje Police and then to Nyamwaga Police post. On 18/1/2023 he was taken to Justice of Piece where he informed him what happened. During cross examination he informed the court that on material day he went to his farm without any working tool and it was deceased who slied to machete which was on accused hand and injure his neck. He confirms to see blood from the neck of the deceased and that the son of the deceased was near the farm when the incident occurred. He testified to leave the place after the alarm made by his mother. In the case at hand the accused is charged with murder. Page 5 of 14 I have accorded a deserving attention the evidence adduced by parties. Without much ado, it is imperative to note that there is no dispute that there is person who died. It is the position of this court that Mariba Marwa Nyaigera died and his death was unnatural as he had a deep cut wound on his neck which cut main veins and cause blood loss as per Exh. Pl and testimony of PW3. The pivotal issue therefore for determination is whether, it is the accused Baru Marwa Nyaigera who cut the deceased. In determining the fate of the accused person before this court, the prosecution must prove beyond reasonable doubt that, indeed, accused person is the one who murdered the deceased contrary to sections 196 of the Penal Code, Cap 16. In proving the charge leveled against the accused, prosecution relied in two witnesses, one being eye witness. According to section 143 of the Evidence Act, and the case of Yohana Msigwa vs. Republic (1990) TLR 148, there is no particular number of witnesses is required to prove a particular fact. In the cause of composing judgement, I will also consider the evidence of both parties adduced before this court. Page 6 of 14 First thing to analyse is the fact of identification, PW2 who is an eye witness, testified to have witnessed the accused person cutting the deceased. The incident took place in day time it was around 08:00 am. He informed this court that while in the form with his father accused stubbed his father at the neck by using machete. He immediately called his grandmother, PW1 who found accused with machete at the farm. By that time there were only two people, accused with machete and deceased. When their mother saw deceased in blood and accused holding machete she made an alarm, accused disappeared. It was daytime so both witness vision was not obstructed by anything. PW1 did not inform this court the distance between himself and the accused, but basing on Exh P2 the two farms were not that big to obstruct vision. PW1 know accused as his baba mdogo (uncle) and he know deceased he was his father. The two were familiar to this witness. In order for this court to rule out if the identification of accused by PW2 was watertight, the evidence adduced by witness must be subjected to a test to make sure that there was a positive identification for this court to be able to rely on. In this regard, I will navigate in the principle of Page 7 of 14 identification as enunciated in the landmark case of Waziri Amani vs. Republic [1980] TLR 250 in which the Court of Appeal held that; "The evidence of visual identification is of the weakest and most unreliable. It follows, therefore, that no courts should act on evidence of visual identification unless all possibilities of mistaken identity are eliminated and the court is fully satisfied that the evidence before itis watertight". See also Aus Mzee Hassan vs. Republic, Criminal Appeal No. 17 of 2020, Yohana Kulwa @ Mwiguiu & 3 Others vs. Republic, Consolidated Criminal Appeals No. 192 of 2015 and 396 of 2017 and Alfred Kwezi @ Alphonce vs. Republic, Criminal Appeal No. 216 of 2021. The Court of Appeal insisted that, when the court is satisfied that there was no mistake of identity then the court can convict the accused trusting the identification of the accused person. In the case at hand, the crime took place in day time, it was morning around 08:00 am while accused, deceased and PW1 was in farm. Deceased was planting in his farm that means there was light though it was no explainedintensity but I take a notice that it was bright light which was used by deceased to plant some seeds. The fact that there were only three Page 8 of 14 people and when PW 1 was close to the farm she saw accused holding machete which has blood stains. It is my finding that, the accused was properly identified by PW2 and PW1. The testimony covered all circumstances surrounding the positive identification and removed all possibility of mistaken identity. PW2 informed the court that accused used machete to cut his father. Accused was in custody since that day and when PW2 entered in court he remembered his baba mdogo (Uncle) and pointed that person who cut his father and killed him. I don't find reasons not to believe the testimony of this angle. As it was said in the case Philimon Jumanne Agala @ J4 vs. The Republic, Criminal Appeal No. 187 of 2015, all four ingredients constitute the offence of murder must be proved, one; There is the death of a person, two; The said death was caused by unlawful act or omission, three; It is the accused who caused the death of deceased, four; The accused acted with malice aforethought. In the case at hand there is a person, Mariba Marwa Nyaigera who is died and his death was unnatural as his cut wound at his neck which cause extensive bleeding, few minutes he died and that accused is associated with the death. Page 9 of 14 Following that analysis, I have to look at ill will, guilty mind.Under section 200 of Cap 16 is referred to as malice aforethought. The section reads; 'Malice aforethought shall be deemed to be established by evidence proving anyone or more of the following circumstances- (a) an intention to cause the death of or to do grievous harm to anyperson, whether that person is the person actually killed or not; (b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although that knowledge is accompanied by Indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; (c) an intent to commit an offence punishable with a penalty which is graver than imprisonment for three years; (d) ’ Court of appeal in the famous case of Enock Kipela vs. Republic, Criminal Appeal No. 150 of 1994 (unreported) saidusually, an attacker will not declare to cause death or grievous bodily harm. Whether or not he had that intention must be ascertained from various factors, including the following:- (1) the type and size of the weapon if any used in the attack; (2) the amount of force applied in the assault; (3) Page 10 of 14 the part or parts of the body the blows were directed at or inflicted on; (4) The number of blows, although one blow may, depending upon the facts of the particular case be sufficient for this purpose; (5) The kind of injuries inflicted. (6) The attacker's utterances if any; made before, during or after the killing (7) The conduct of the attacker before and after the killing. In the case at hand, accused used machete to cut deceased, the blow was directed at the neck where the veins were affected. Exh Pl explain that accused had one wound but it cut main supply of blood vein and cause deceased to lose a lot of blood within a short time. Machete is dangerous weapon and the area stabbed was neck which is sensitive part of the body. One blow was heavy as the deceased died in friction of time. Kind of injury was deep cut wound at the left side of the neck and accused disappeared after the incidence. This shows that he intended to kill the deceased as most of the tests of malice aforethought is proved. It was the defence of accused that he was in his farm and deceased hit him with a hoe and decide to run and hold machete. Then, deceased slide and hit his neck on machete which was on hands of accused. It was said the duty of defence is to shake the evidence of prosecution. In other Page 11 of 14 words, accused duty is only to create doubt. In YusuphNchira vs The Republic, Criminal Appeal No. 174 of 2007 (unreported) the Court stated that: - ' The appellant had only to raise doubts on his presence at the scene ofcrime and tire prosecution had to prove its case beyond reasonable doubt. The appellants story need not be believed. He had only to raise a reasonable doubt and not to prove anything.' Reading careful the defence by accused, I find there is no doubt raised than confession that he holds machete which cut the deceased.The truth that the defence of the accused has to be analysed does not replace the principle that in criminal trials an accused person cannot be convicted on the weaknesses of his defence as clearly stated in Christian s/o Kale and Rwekaza s/o Bernard vs Republic [1992] TLR 302 (CA); 'Although second appellant's defence, like that of his co­ accused, was a cock-and-bull story of what happened on the material day; and it must be conceded that he obviously has a talent for fiction; an accused ought not to be convicted on the weakness ofhis defence but on the strength of the prosecution case.' Page 12 of 14 Now weighing the evidence from the prosecution side with the defence, I am of the firm finding that, the prosecution has successfully proved the case beyond a reasonable doubt against the accused herein. First, the prosecution has managed to prove the identification of the accused which was watertight, it was day time and there was no obstacles. Second, witnesses were able to prove that the accused person intended to kill as he used machete. The accused only deny the charge, without establishing evidence to cast a shadow as to his identity at the scene. Bruises All that being said, the prosecution has managed to prove the case beyond a reasonable doubt. Therefore, the accused Baru Marwa Nyaigera is hereby convicted for the offence of murder contrary to section 196 of the Penal Code [Cap 16 R.E 2022]. M. L. KOMBA JUDGE 25th March, 2024 SENTENCE The accused herein has been convicted for the offence of murder contrary to section 196 and 197 of the Penal Code, the offence when proved has Page 13 of 14 only one punishment. My hands are tied leaving me with no other option than to sentence Baru Marwa Nyaigera to suffer death by hanging. Court: Right of appeal is fully explained. M. L. KOMBA Judge 25th March, 2024 Page 14 of 14