CRIMINAL SESSION CASE NO 9 OF 2023

IN TH E HIG H C O URT O F T H E U N ITED R E P UB LIC O F TAN Z A N IA {KIGO M A S U B -R EG IS T R Y) A T K IG O M A C R I M I N A L S E S S I O N CA S E N O . 9 O F 2 0 2 3 R EP U B LIC VERSUS BA ND Y EE K ELA JAN WAR Y @ ZA N Z IBA 1st ACCUSED PERSON NDAYIKENGURUKIYE STANSLAUS 2"d ACCUSED PERSON JUDGMENT 27/02/ & 29/04/2024 NKWABI, J.: Aspiring to earn a decen,t,living, the deceas~ mel),1_-j(wizera Kamazi, a Burundian national, travelled all the way from Burundi to Tanzania for that purpose. He was employed, so to speak, by the 1st accused person, in the st farm of the 1 accused as a casual labour who would be paid some money. When he had done his part of the agreement he had executed st 1 accused person, the prosecution venture that, he demanded to be paid st by the 1 accused person. That demand for what was due to him, did not st go down well with the 1 accused person who struck the deceased with a hoe on the head. When the 1st accused saw that the deceased lost his breath, with the assistance of the 2nd accused person buried the body of the deceased in a pit which was used for making timber. That incident 1 happened on unknow n date but in Septem ber, 2022 at Rusekw a area in Nyarugusu village w ithin Kasulu district w hich is w ithin Kigom a region. T he accused persons w ere arraigned before this C ourt. T hey disputed to have com m itt ed the offences they respectively stand charged w ith. W hile, nd the pt accused person is charged with murdering the deceased, the 2 accused person is charged with being an accessory after the fact in that he assisted the 1st accused person to bury the body of the deceased while st knowing that the deceased was murdered by the 1 accused person. With the aim of the prosecution to nail down a conviction against both accused persons for their respective counts on the charge sheet, the prosecution brought three witnesses and tendered four exhibits. 1st accused person admits to have come to Tanzania, from Burundi, with the deceased, his relative, to look for agriculture in farms at Nyarugusu village. He states that when he had gone back to Burundi, he heard that the deceased was sick, he came back and found him in a critical condition, he bought some tablets and gave him. He could not send him to hospital for lack of documentation. The deceased died when they were attempting to send him back to Burundi for treatment. On st relating the death to the deceased's relatives, the 1 accused person 2 asse rted , the y to ld him to bu ry the de cease d . H e bu ried the d ece ased an d w o u ld no t te ll the villag e le ade rs beca use of the ir status. H e w as arre sted on 13/12/20 2 2 , be ate n up and he sho w ed the po lice w he re the y had bu rie d the de ce ased . H e ad m its the bod y of the d ecease d w as exh u m e d an d exa m ine d by a m e d ica l do cto r w ho sa id the de cea sed co u ld have bee n struck o n the he ad . It is his further admission, in cross-examination, nd that the 2 accused person assisted him, in collaboration with others to bury the deceased. He denied to cultivate crops on top of the tomb and said it was the workers of the owner of the shamba who did so. He alleged that Silas had a grudge with him over a sack of charcoal Silas sold in the village. nd The 2 accused person, a Burundian national too, stated in his defence that he came to Tanzania to earn a living as a casual labourer in farms at Nyarugusu village. He disputed being a causal labourer at the farm of the st 1 accused person rather he was carrying luggage of people on a bicycle. He explained that when he went to visit the 1st accused person, he found the deceased sick and died as a result of sickness. He added that the sick person was to be sent to Burundi on bicycle but the money he had lent to the 1st accused person was sent to the wife of 3 th e 1st accused person by phone. Later the 2nd accused person was called to assist to bury the body of the deceased which he accepted and said in cross-examination that six persons buried the deceased. When cross- examined by Mr. Julius, learned State Attorney, the 2nd accused person replied as follows: "We buried the deceased in a pit which was used for cutting timber {kuchaina mbao).... When I reached there, I found them finishing burying {kufukia).... I was not very much involved in burying the deceased because I found them completing burying the deceased. " At the same time, during the trial, the prosecution was represented by Ms. Antia Julius, Mr. Pankarasi Ligombi, both learned State Attorneys. The 1st accused person enjoyed the services of Ms. Victoria Nyembea, learned counsel while the 2nd accused person was duly represented by Mr. Isack Bwire, also learned counsel. No final submissions were preferred to be filed by both parties. Owing to the evidence that is available on both sides, however, four main issues are to be raised and answered by this Court. The issues are: 1. Whether the deceased died an unnatural death. 4 2 . If the pt issue is answered in the affirmative, then whether the pt accused person caused the death of the deceased. 3. If the 2nd issue is answered in the affirmative, then whether the 1st accused person had malice aforethought. 4. Whether the 2nd accused person is guilty of accessory after the fact to murder. While the accused persons maintain that the deceased Kwizera Kamazi died due to sickness (natural cause), and the 1st accused person did not cause the death of the deceased, the evidence of the prosecution is that the deceased died due to have sustained head injury from the blow of the pt accused person. The medical doctor (PW.l Madega) who examined the body of the deceased opined that the deceased had a press fracture of the skull which had been cause by a blunt object. That corroborates the evidence of other prosecution witnesses that the deceased sustained head injury after being struck by the pt accused person by use of a hoe. Given those facts in the evidence of the prosecution, there is no doubt that the deceased died an unnatural death. I am of the considered view that the deceased met his untimely death through unnatural cause which was through sustaining a press wound inflicted through a blunt object (a hoe) which fractured his skull. The allegation of a grudge with the one 5 Ndagijimana s/o Silasi, maintained by the 1st accused person, is dismissed under the authority of Augustino Kaganya & Others v. Republic [1994] T.L.R. 16 (CA) it was stated that: ·~-- in his defence the first appellant denied knowing the deceased leave alone killing him. He advanced defence of alibi and said that Yusutu. {PW2J told lies against him because there was enmity between them as he/ {PW2J believed that he {first appellant) had reported to game scouts that he/ {PW2J was manufacturing bullets illegally. This defence was apparently not believed by the learned Judge and in our view rightly so. If there was indeed such enmity one would have expected him to cross-examine the witness; PWZ on the alleged bad blood. That he did not do so tends to show that his defence of enmity was an afterthought. I'/ See also Paschal Kitigwa v. Republic, Criminal Appeal No. 161 of 1991, CAT (unreported), where it was underscored that. "... it is common ground that corroborative evidence may well be circumstantial or may be forthcoming from the conduct or words of the accused. On tins. numerous 6 de cisions ha ve been m ade by the th en Co urt of Appeal for Eastern A frica - see R. v. Said Magombe {1946} EACA 1645 and Migea Mbinga v. Uganda (1967) EA 71H Indeed, it is fairy-tale law that the burden of proof lies in the prosecution to prove the offence beyond reasonable doubt. This position of the law was stated in the case of Mohamed Said Mtula v. Republic [1995] T.L.R. 3 (CA) where it was underlined that: "Upon a charge of murder being preferred, the onus is always on the prosecution to prove not only the death but also the link between the said death and the eccused: the onus never shifts away from the prosecution and no duty is cast on the appellant to establish his innocence." I also associate myself with the hackneyed law that an accused person cannot be convicted on the weaknesses of his defence but only on the strength of the prosecution evidence which was well underscored in John Makolobela Kulwa Makolobela &Another v. Republic [2002] T.L.R. at page 296 where it was held that: •~ person is not guilty of a criminal offence because his defence is not oetieved: rather. a person is found guilty 7 and convicted of a criminal offence because of the strength of the prosecution evidence against him which establishes his guilt beyond reasonable doubt " One may also be charmed to see also what was stated in Sarkar on Evidence in India, Pakistan, Bangladesh, Burma & Ceylon, 14th Edition 1993 at P. 1338 where it was explained thus: ':.4n essential distinction between the burden ofproofand onus ofproof is that the burden ofproofnever stntts; but the onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. " I am obligated to point out here however that, the position of the law as stated in Sarkar's excerpt above is similar to that was held in the case of Hatibu Gandhi v. Republic [1996] T.L.R. 12 where the Court of Appeal of Tanzania required the defence of the appellants to have cogency in order to dismantle the strong case of the prosecution. Currently, my duty is to analyze the evidence and see how it links the accused persons with the offences they are charged with. That was aptly stated in James Bulolo & Another v. Republic [1981] T.L.R. 283 thus: 8 "The duty of the court first to collect; analyse and assess the evidence and see how fa0 if at all it touches upon accused person. // It was the evidence of the medical doctor, Ms. Madega, who testified as PW.1 that when the body of the deceased was exhumed, she examined it and found that the body of the deceased which had started to decompose had a wound on the left side of the head. She recorded that finding in exhibit P. 1. which is a post mortem examination report. I have already touched on that point earlier in my judgment. The counsel for the 2nd accused person suggested during cross- examination that the deceased could have sustained the wound by falling down. That suggestion is negated by the defence of both accused persons who claim that the deceased died from sickness (malaria). The claim of sickness is not cross-examined upon by the defence counsel. The post mortem report reveals that the deceased sustained the injury through a heavy blunt object. I am more than sure that the pt accused person inflicted the fatal blow on the deceased. The motive for inflicting the fatal blow on the deceased is clear that he did not want to pay the deceased what was due to the 9 de ceased . T he sug g e stio n that the de ceased d ie d as a resu lt of be in g sick doe s no t fin d pu rchase w ith m e . I o utrig h tly re b uff it. I have no do ub t in m y m in d that the re po rt by N d a g ijim a n a Sila s to PW .2 , Bo n ave ntu ra, w as au the ntic. In an y w ay it is co rrob o rated by w h at w as stated by bo th accuse d pe rso ns in the ir defe nces. In the prem ise s I ho ld that the issue w hethe r the de cease d d ie d an unn atu ral de ath sh o u ld be answ e red in the affirm a tive , so is the 2nd issue which is whether the pt accused person caused death of the deceased. On the issue whether the pt accused person had malice aforethought, that is clear as eggs is eggs. The 1st accused person was not pleased when the deceased demanded to be paid for the work he had done, that is clear malice aforethought for the killing. The 3rd issue too is thus, answered in the affirmative by this Court. I turn next to discuss the 4th issue which concerns the 2nd accused person who is charged with being an accessory after the fact to murder. The 2nd accused person admits to have participated to bury the deceased but at the final stage of the burial, with some contradictions thereto in his defence. The 2nd accused person forgot an adage that goes, ''Lies are like 10 co ckroach es, for e veryon e yo u disco ver th ere are many m ore that are hidden . "In other words, "One lie is enough to question all truths. // The nd 2 accused person is controverted by his co-accused person who said in defence that the 2nd accused person assisted him to bury the deceased. The defence of the pt accused that the 2nd accused was involved in burying the deceased when the deceased passed away, lends assurance on the decision of this Court just as it was stated in a different scenario. I think my stance against the 2nd accused person is supported by Richard Matangule & Another v. Republic [1992] T.L.R. 5 (CAT). The Court of Appeal had these to say: •: .. these deliberate lies and the refusal to give an explanation corroborate the case for the prosecution that the appellants are responsible for the death of the deceased." See also Pascal Mwita & 2 Others v. Republic [1993] T.L.R. 295 (CAT) which quoted with approval R. v. Erunasoni Sekoni s/ o Eria & Another (1947) 14 EACA 74 where it was stated that: ''Although lies and evasions on the part of an accused do not in themselves prove the fact alleged against him/ they mey. if on material issue be taken into account along with 11 o ther ma tters and the e viden ce as a wh ole when considering his guilt " The falsehood of the 1st accused person's defence about getting medical attention to the deceased is glaring as no prosecution witness was cross- examined upon. I have nothing but to follow the following advice, "You can best reward a liar by believing nothing of what he says. " After the prosecution has established a prima facie case against the accused persons, though not required to prove their defences, the accused persons were under an obligation to give cogent explanation as to who inflicted the fatal injury on the deceased's head (the skull) leading to his death as opposed to himself, see Hatibu Gandhi v. Republic [1996] T.L.R. 12. Instead of bringing such cogent explanation, the accused person testified false testimony in material particular. The lies on defence corroborates the prosecution case as it was held in case of Erunasoni (supra). In fine, I find that the prosecution has proved that the 1st accused person murdered the deceased, I thus conclude that the 1st accused person namely BANDYEEKELA JANWARY@ ZANZIBA is guilty of murder. I convict him of murder as charged contrary to section 196 and 197 of the Penal 12 C ode, C ap. 16 R . E. 2022. Likew ise, I find the prosecution has proved that the 2nd accused person assisted the 1st accused person with knowledge that the deceased was murdered to bury the deceased Kwizera Kamazi. I hold that the 2nd accused person namely N DA YIK EN G U R UK IYE STA N SLA U S is guilty of being accessory after the fact to murder contrary to section 213 and 387(1) of the Penal Code. It is so ordered. DATED at KIGOMA this 29th day of April 2024. ~\ J. F. NKWABI JUDGE PREVIOUS RECORDS Mr. Ligombi: The convicts are the first offenders. We pray for severe punishment to address the offences in accordance with the law. That is all. MITIGATION Mr. Bwire: We pray for lenient sentences for the following reasons; 1. The convict is the first offender, 2. The convicts are remorseful of the offences. He has been in remand custody for more than one year. 3. The convicts have families and relatives depend on him for a living. That is all. 13 SEN T EN C E Court: I have considered the common ground that the convicts are the first offenders, but for the 1st convict there is only one sentence which is death by hanging, I proceed to condemn the 1st convict BANDYEEKELA JANWARY @ ZANZIBA to Death by hanging in accordance with the law. As for the 2nd convict, NDAYIKENGURUKIYE STANSLA US having considered the truth that he is the first offender, he has stayed in remand custody for more than a year, I sentence him to serve four years imprisonment. It is so ordered. Court: Sentence delivered this 29th day of April, 2024 in open Court. ~' J.F. NKWABI JU D G E Court: Right of appeal is explained. ~\ J.F. NKWABI JUDGE 2 9/0 4 / 20 2 4 14