CRIMINAL SESSIONS NO

IN THE HIGH COURT OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA CRIMINAL SESSIONS CASE NO. 66 OF 2023 REPUBLIC VERSUS MWITA KITANGTTA WAITANGO @ WHITE JUDGMENT 18th Sept & 4th October, 2024 M, L. KOMBA, J.: Mwita Kitangita who is also known as White is accused of killing Omary lyombe who is also known as Zorwa. From facts of the offence, the incidence took place on 24th September, 2022 at Kizaru Village in Butiama district, Mara region. PW1 Silvanus Huguru Wesa resides in Kizaru village narrates what happened. He was paraded as PW1. It was his testimony that on that day, 24/09/2022 while in his farm he heard an alarm (yowe) from the border of two village, Kizaru and Kamgeru. He decided to go where the alarm was from together with other citizens including Julius Ernest they heard that Mzee Daniel Wesa was injured. Still going to the place to know what alarm for, he said he heard the voice that somebody is shouting "Nauwawa nauwawa"^^ in the distance of like 50 meters he saw a Page 1 of 17 man running towards his direction. Other people were following the one who was running (the deceased) and all over the sudden, one person throw club to the deceased. The deceased fell down and when he was down Mwita @ White cut him with machete. By the time PW1 reached the point where deceased fell down, Mwita and three others run away. He went on testified that among the three people he managed to identify Mwita Kitang'ita who was the one who cut Omary (the deceased) on the back side of head. It was his testimony that the crime took place in the morning around 9.30 to 10.00 hours and the sun was shining. At the scene he said they met Omary lyombe laying down while bleeding and he died. He informed this this court that he know Mwita @ white as he was playing football in Kizaru village and they used to have friend match in the village and he transported some people from mnadani to Kizaru village so White was familiar to him. During cross examination he clarified that the distance from where he was and the place Omary fell shortened because they were running towards each other it remains like 15 meters from where he was and the place Omary fell. He insisted to know Mwita, the accused as one of his parents was a teacher, teacher Kitang'ita. PW1 was a Village Executive Officer by that time so he Page 2 of 17 used to know some people. He went on confirm that accused was a good footballer so he knows him from that angle too. About condition of the deceased, he said Omary died while he reached the point he falls down. They find him alive but in friction of minutes he died, he was with other people who were running to the alarm and he know them by names. This testimony was collaborated by the narration of Julius Ernest Miguma who appeared as PW2 and informed this court that on 24/9/2022 around 08:00 am while in the farm he heard an alarm (yowe) and he responded and was told to go to direction of the boundary between Kamgendi and Kizaru village, he started to go with other people and on the way they heard a shout "nakufa! nauwawd' to mean am dying. The voice was from 50 meters. He went on testifying that they went on running and in the interval of like 20 meters they saw Omary who was chased by other people. He saw one person throw a club to Omary who fell down and a person called White cut Omary on the back side of head {kisogoni}. Omary was heavily bleeding and three people who were chased him left the scene. He said Omary died like 3 minutes of their arrival. About recognition of the accused he said he know White as they used to play football together. Page 3 of 17 When cross examined by Mr. Kisika this witness clarified that he heard voice then he saw people running, it was three people chasing one person. Among the three he saw, he recognised White alone and failed to know the rest two, by that time he said he failed to recognize who fell down till when he reached the scene. He went on clarifying that some other people arrived too and when Omary died there were many people. About knowing the accused, this witness informed the court that he knows White, the accused for long time as they used to play football together, witness was a was goal keeper in their village team. He confirmed to meet with PW1 while running to the scene and branded that PW1 and him are neighbors. He further confirmed to inform the public (wanayowe) that it was White who killed the deceased Omary. When cross examined by Mr. Makowe PW2 testified that deceased used all three names Omary lyombe Zorwa and insisted he was known that way in the village. PW 2 explained further that the area where Omary fell was open space although there were trees which was used as boundary. He went on testifying that by the time police arrived at the scene, Omary was already dead, they took the body of deceased and return it for burial which he participated. When asked about the existing antagonism among the two Page 4 of 17 villages he replied and informed this court that the situation is disturbing the society as there was no good relationship by then. He insisted that White killed the deceased and it was not an allegation. Accused person was arrested on 05/11/2022 by PW3 H. 292 D/Cpl Hesbon, the arrest was done at night while the accused was in his house. PW3 informed this court that they arrested him at night because informer told them that during the day time he stays in forest. He was found at his house Kizaru in Kamgendi village. PW4 was E 9989 D/Sgt Asukile, investigator of the crime and was assigned that duty on 26/09/2022, two days after the death and started to investigate whereabouts of the accused till 05/11/2022 where he was arrested. This witness tendered Exhibit Pl which was post mortem report. During cross examination by Mr. Kisika he informed this court that he was assigned a file on 26/9/2022 and by that time statement of some of the witness were already in file and he knows suspect by reading the file. When cross examined by Mr. Makowe he acknowledges that recording of statement was done five months later due to some investigative reasons. He further clarified about names of deceased that he was known with Page 5 of 17 different names which were Omary lyombe Zorwa or Omary lyombe lyombe or Omary Ihunyo lyombe. He confirmed he did not clarify in the file but he clarifies it in court and insisted the correct name is as it appears in the charge sheet. The charge sheet is correct. Upon this court rule that the accused has a case to answer, the accused enter his defence under oath and he was the only defence witness DW1 (Mwita Kitang'ita Waitango). He testified that on the fateful day which was 24/9/2022 he was at his home Kamgendi and there was an alarm (yowe) in Kamgendi village near the border where there was conflict on land between Kizaru village and Kamgendi village. He informed this court that he responded to the alarm but nothing happened. He went on testified that he received a phone call from his cousin telling him that he was mentioned in murder incidence. He testified further that he participated in alarm which involved citizens from two villages (Kizaru and Kamgendi) but he said, he killed nobody as he did not know the deceased. He elaborated his familiarity over the two village that he know Kizaru village as he used to go there for football matches, he was footballer where they used to have match with Kizaru villagers. In the cause of playing football he said it emerge a dispute between himself and Page 6 of 17 goalkeeper and that was the end of his visit to Kizaru. He confirms he was arrested but he was not informed of the reason of his arrest. When cross examined by State Attorney, he informed this court that he quarreled with two people only in his life; Silvanus Wesa and Julius Ernest Miguma. He explained that Silvanus Kiguru Wesa asked for bribe from him so that he (Silvanus) as a village leader can nominate his name. He confirms he did not examine both when they were in court. Explaining how he became aware that he is suspected he specify name of the person is Nyake, his cousin who heard people when she participated in the mourning at Omary's burial in which he did not attend. About attending the yowe he confirmed and further explained people usually carry weapons when responding to yowe and he had arrows, bow and sticks and specifically he carry a bow with five arrows. He further explained his football experience and friends whom he said he failed to summon them as witnesses because they were not in village, they have gone out of their village for green pasture. 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 Page 7 of 17 there is person who died and was buried. It is the position of this court that Omary lyombe @ Zorwa died and his death was unnatural as he had a deep cut wound on the back side of his head (kisogoni). Deceased had open, deep cut wound which reached the skull as per Exhibit Pl. The essential issue therefore for determination is whether, it is the accused Mwita Kitang'ita 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 flattened against the accused, prosecution trusted two witnesses, both were 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. PW1 testified it was morning ours when he heard an alarm and responded, while running towards the alarm he noted other people too including PW2 Page 8 of 17 running towards where the alarm came from. On his way he testified to have witnessed the accused person cut the deceased at the backside of his head. The incident took place during the day time it was around 09:30 am. PW1 informed this court that While running towards the alarm they heard someone crying "nauwawa nauwawa" and he was doser he saw someone running towards him and other people behind him. While running he saw one of the people behind throw a club which heat the deceased and he fell down. Still running to the scene he saw accused cut the person who fell down on back of his head and when they reached the scene area, PW1 noted it was Omary who fell down and few minutes after he arrived Omary dead. He explained it was an open space there was no big bushes so he managed to see everything. He recognized accused as he was a footballer and used to play football at their village. Further, his father was a teacher so he knows their family. The same testimony was from PW2 as they were together running responding to alarm. PW2 testified that deceased died in three minutes after he arrived at the scene and was the one who informed wanayowe that is accused White who killed Omary. He saw him while cutting the deceased on the back side of his head. In his testimony PW2 Page 9 of 17 said he know the accused as they used to play together football and I find it was easy to recognize him. In order for this court to rule out if the identification of accused by PW2 was watertight, the evidence adduced by witnesses 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 sail in the principle of 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 acton evidence of visual identification unless all possibilities of mistaken identity are eliminated and the court is fully satisfied that the evidence before it is watertight". See also Aus Mzee Hassan vs. Republic, Criminal Appeal No. 17 of 2020, Yohana Kulwa @ Mwigulu & 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 Page 10 of 17 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 during the day time, it was morning around 09:30 hours while accused and deceased were running in one direction and PW1 and PW2 were running toward them. They were close enough to see what happened as they were running. Both prosecution witness did not explain about light but this court take a note that at 09:30 hours the sun is bright. PW 1 was running and he said the distance was decreasing as they were running to deceased. The accused was familiar so it was easy to recognize him than another person who throw club. It is my finding that, the accused was properly recognized by PW2 and PW1. See Njamba Kulamiwa vs The Republic, Criminal Appeal No. 460 of 2007 and Mussa Saguda vs The Republic, Criminal Appeal No. 440 of 2017. The testimony covered all circumstances surrounding the positive identification and removed all possibility of mistaken identity. Both PW1 and PW2 informed the court that accused used machete to cut Omary in yowe and accused did not deny to respond to yowe. Accused and PW2 used to play football together so they know each other. Page 11 of 17 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. (i) There is the death of a person, (ii) The said death was caused by unlawful act or omission, (iii) It is the accused who caused the death of deceased, and (iv) The accused acted with malice aforethought. In the case at hand there is a person, Omary lyombe Zorwa who is died and his death was unnatural as he was cut on back of his head and few minutes he died and that accused is associated with the death. 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 any person, 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 Page 12 of 17 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 said, usually, an attacker will not declare to cause death or grievous bodily harm. Whether or not he had that intention must be ascertaied from various factors, including the following the type and size of the weapon if any used in the attack; the amount of force applied in the assault; the part or parts of the body the blows were directed at or inflicted on; the number of blows, although one blow may, depending upon the facts of the particular case be sufficient for this purpose; The kind of injuries inflicted; the attacker's utterances if any; made before, during or after the killing and 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 back side of the head. Exp Pl explain that accused had one Page 13 of 17 wound which was open. Machete is dangerous weapon and the area inflicted was head which is sensitive part of the body. One blow was heavy as the deceased died in friction of minutes. Kind of injury was deep open cut wound as per Exhibit Pl and accused disappeared. This shows that accused intended to kill the deceased as most of the tests of malice aforethought is proved. It was the defence of accused person that he attended yowe and he was armed with local weapons. He said when he reached at the yowe nothing happened. He did not know if somebody died on that day and he was only informed by his cousin that people who gathered at Omary lyombe house mentioned his name to be suspect of the killing. Under oath he said he did not cut Omary. His social life involve playing football in Kizaru village. It was said the duty of defence is to shake the evidence of prosecution. In other words, accused duty is only to create doubt. In Yusuph Nchira 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 the prosecution had to prove its case beyond reasonable Page 14 of 17 doubt. The appellants story need not be believed. He had only to raise a reasonable doubt and not to prove anything.' Accused confirmed to respond to yowe on 24/9/2022 morning hours. PW 1 and PW2 who responded to yowe testified to see accused cutting Omary with machete and run away. Both PW 1 and PW2 know accused before. Reading careful the defence by accused, I find there is no doubt raised than confession that he responded to yowe and had local weapon. 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 of his defence but on the strength of the prosecution case.' Now weighing the evidence from the prosecution side with the defence, I am of the firm finding that, the prosecution managed to prove the case beyond a reasonable doubt against the accused herein. First, the Page 15 of 17 prosecution witnesses recognized the accused, the evidence of recognition 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. Third, part of the body injured is head which is very sensitive part. The accused only deny the charge, without establishing evidence to cast a shadow as to his identity at the scene. All that being said, the prosecution has managed to prove the case beyond a reasonable doubt. The accused Mwita Kitang'ita Waitango @ White is hereby convicted for the offence of murder contrary to section 196 of the Penal Code [Cap 16 R.E 2022]. NX M. L. KOMBA Judge 4th October, 2024 SENTENCE The accused herein has been convicted for the offence of murder contrary to section 196 of the Penal Code, the offence when proved has only one punishment under section 197. My hands are tied leaving me with no other Page 16 of 17 option than to sentence Mwita Kitang'ita Waitango @ White to suffer death by hanging. Court: Right of appeal is fully explained. M. L. KOMBA Judge 4th October, 2024 Page 17 of 17