Criminal Session No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA CRIMINAL SESSION NO. 17 OF 2023 REPUBLIC VERSUS MICHAEL THOMAS THOMAS JUDGMENT Iff11 September & 29!' November, 2024 MPAZE, J.: It all started with the disappearance of Maria Raymond Jika (deceased) from her home. Upon noticing that his mother had not returned, Isack Andius (PWi) asked his stepfather/ Thomas Michael Thomas (DW1), who is also the husband of Maria, about her whereabouts. According to PWI, DW1 responded that she might have decided to stay overnight at the farm. The following day, PWI inquired again about his mother's continued absence. PWI alleges that DW1 advised they wait for three days and, if she had not returned by then, they would begin searching for her. i On 27th July, 2010 PW1 claimed that he and the accused went to the farm together to search for his mother, the deceased. Despite their efforts, they were unable to locate her. During the search, PW1 alleged that DW1 informed him he needed to step away briefly. Subsequently, PW1 returned home, but the accused never came back. After realizing that neither his mother nor his stepfather had returned or could be located, PW1 decided to visit his maternal uncles to inform them about the disappearance of both the deceased and DW1. Geofrey Kasembe Mtendas (PW4), a relative of the deceased who regarded her as a mother, claimed that he learned about Maria Raymond's disappearance from DW1. PW4 stated that on 27th July, 2010 DW1 went to his home and informed him that his wife (Maria Raymond) had been missing for three days, requesting PW2's assistance in searching for her. PW4 stated that he and the accused went together to a location where PW4's wife conducted business. Upon arrival, PW4 asked the DW1 to wait outside, but when PW4 returned shortly after, DW1 was no longer there. According to nearby individuals, the DW1 had headed toward the washroom. However, PW4 discovered that the accused had left the area undetected, a conclusion PW4 reached by tracking footprints that matched the shoes DW1 was wearing that day. 2 PW2 alleged that upon noticing DWl's disappearance, he informed other family members, and together they decided to report the matter to the Village Executive Officer (VEO). After doing so, they received authorization to commence a search. On 28th July, 2010 PW4 stated that they discovered the body of Maria Raymond, which was already decomposing. They promptly informed the VEO, who, in turn, notified the police. The police arrived at the scene accompanied by a doctor. PW1 also testified that he was informed about the discovery of his mother's body and proceeded to the scene. According to the report prepared by Dr. Sadiki, tendered as Exhibit Pl by F4211 SGT Benson (PW3) following the doctor's passing, the cause of death for Maria Raymond was determined to be asphyxiation. Godfrey Emmanuel MpuWele (PW2), the Village Executive Officer (VEO), confirmed that he had received a report from the deceased's relatives regarding Maria Raymond's disappearance and granted permission forthem to search for her. He later received information about the discovery of the body. In his testimony, he also confirmed that he knew both the deceased and DW1, who lived together as husband and wife in his village, Mwena. 3 PW3 explained the steps he took during the investigation of the case. D/SGT Sangwa (PW5), a police officer, testified that he interviewed the accused regarding the crime, during which the accused denied any involvement. PW5 further claimed to have taken a statement from a witness named Arnold, who is now deceased. He explained that he was the Second investigator assigned to this case after the first investigator was transferred. Regarding who committed the murder of Maria Raymond, PW1 claimed to believe that DWl is responsible. He testified that on 23rd July, 2010 he left home, leaving the deceased with. Upon returning and inquiring about her whereabouts, DWl allegely stated that she was at the farm. When PW1 asked again the following day, the accused advised him to wait for three days. After the three days elapsed, they began searching for the deceased but were unable to find her, and DWl subsequently disappeared. Based on these events, PW1 asserted that no one else but the accused could have killed his mother. Similarly, PW4 claimed that DWl was responsible for the death of his wife. He testified that after DWl informed him of his wife's 4 disappearance and expressed a willingness to assist in the search, DW1 suddenly vanished without a trace. PW4 explained that these suspicious circumstances led him to conclude that DW1 was the one who caused his wife's death. PW4 also asserted his belief that DW1 was responsible for the deceased's death. He noted that DW1 disappeared immediately after the incident and remained at large until his apprehension on 26th July, 2022. These factors, according to PW4, reinforced his suspicion regarding DWl's involvement in the crime. Twelve years after the death of Maria Raymond, DW1 was arrested and brought before the court to face a charge of murder. According to the information filed, it was alleged that between the 24th and 28th July, 2010, at Mtunungu Village within Masasi District in Mtwara Region, Michael Thomas Thomas unlawfully caused the death of Maria Raymond Jika. DW1 denied the allegation. In his defence, DW1Z while denying the charge of murder, admitted that the deceased was his wife but claimed they had separated in 2008. He stated that following their separation, he had taken her to her parents' home. He further explained that the only witnesses to this arrangement 5 were Peter Maliyamungu and Mzee Asiya, both of whom are now deceased. DW1 attributed their separation to the deceased’s refusal to assist in cultivating a plot of land in Luchelegwa Village. According to him, this land was intended to replace family-owned property embroiled in disputes. After their separation in 2008, DW1 claimed he relocated to Mateko Nyamichiga to focus on farming. DW1 added that he remained in Nyamichiga until 2022, when he returned to Mwena Village. Upon his return, he learned that Maria, who was once his wife, had passed away. He stated that he stayed in the village, engaging in various activities, and was eventually arrested as he was preparing to return to Nyamichiga. In brief, this is the evidence presented by both sides regarding the death of Maria Raymond. Based on the evidence, I have no doubt that Maria Raymond is dead. This conclusion is firmly supported by the testimonies of PW1, PW2, PW3, and PW4, all of whom confirmed witnessing her lifeless and decomposed body in the wilderness. Furthermore, Exhibit Pl corroborates this fact, clearly establishing that Maria's death did not result from natural causes. 6 While I am satisfied that Maria Raymond died an unnatural death, the crucial question is did DW1 cause her death? To determine whether DW1 is responsible for the death of the deceased, it is essential to note that, based on the evidence presented, there is no direct evidence linking DW1 to her death. The prosecution's case rests entirely on circumstantial evidence. Therefore, as the evidence is circumstantial, this court must carefully assess whether it sufficiently establishes a link between the accused and the deceased's death. In Sadick Ally v. R (Criminal Appeal Case 81 of 2015) [2015] TZCA 468 (19 August 2015), the Court of Appeal elucidated the standards required for a conviction based on circumstantial evidence. It emphasized that such evidence must inevitably lead to the conclusion that no one other than the accused committed the offense. The Court stated; 7T is settled law that a court may ground a conviction solely on circumstantial evidence. This is so where the said evidence irresistibly leads to the inference that it was the appellant and no one else who committed the offense. Such evidence must also be incapable of any other interpretation, and the chain jinking such evidence must not be broken; see Augustmo Lodaru v. Republic (Criminal Appeal No. 90 of 2013) (unreported),A 7 Additionally, the Court quoted with approval the case of Julius Justine and Others v. R Criminal Appeal No. 155 of 2005 (unreported), where it was held; the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established, and those circumstances should have a definite tendency unerringly pointing toward the guilt of the accused. Taken cumulatively, these circumstances should form a chain so complete that there is no escape from the conclusion that, within all human probability, the crime was committed by the accused and no one else. ' These decisions reinforce the principle that for a conviction to rest on circumstantial evidence, such evidence must be compelling and unequivocal, leaving no reasonable doubt as to the accused's guilt. The chain of circumstances must be so complete that it points solely to the accused as the perpetrator, excluding any other reasonable explanation. Having considered the legal framework governing convictions based on circumstantial evidence, and mindful of the cardinal principle that the burden of proof rests on the prosecution to establish Its case beyond a reasonable doubt, I now turn to the present case. Here, I will evaluate whether the circumstantial evidence presented sufficiently establishes 8 that it was DW1 who caused the death of the deceased, excluding any other reasonable hypothesis. In this case, PW1 testified that on 23rd July, 2010 he left Maria with DW1 at their home. Upon his return, Maria was missing. When PW1 questioned DW1 about her whereabouts, he was told that Maria had gone to the farm and might have chosen to stay there. The following day, when PW1 asked again, DW1 responded that they should wait for three days, after which they could check on Maria at the farm if she had not returned. According to PW1, after the three days elapsed, he and DW1 went to the farm to look for Maria but could not find her. Following this unsuccessful search, the accused disappeared and was not seen again. This testimony by PW1 aligns with that of PW4, who stated that the accused approached him and reported that his wife was missing, seeking his assistance in searching for her. However, shortly thereafter, DW1 disappeared and remained untraceable until his apprehension. PW2, the VEO at the time of the deceased’s disappearance, testified that he was informed of Maria Raymond's disappearance by her relatives. He confirmed that the deceased was living With DW1 as husband and wife 9 at the time. PW2 also noted that DWl was conspicuously absent during the search efforts for Maria. From this evidence, the court observes the credible testimonies of PW1, PW2, and PW4, which sharply contrast with DWl's evasive responses about the deceased's whereabouts. Coupled with DWl's unexplained disappearance when the search for Maria commenced, these actions suggest an awareness of culpability rather than an innocent reaction. DWl's behaviour, including providing unclear answers and subsequently fleeing, demonstrates conduct indicative of guilt. His actions point toward an attempt to evade responsibility and support an inference of his involvement in the death of Maria Raymond. The prosecution's evidence presents DWl as not merely distancing himself from the investigation but actively absconding from the community altogether following Maria's disappearance. His unexplained departure, occurring precisely when the family was intensifying efforts to locate her, strongly points to a consciousness of culpability. This conduct starkly contrasts with the actions of an innocent spouse, who would reasonably be. 10 This unexplained absence extended oyer twelve years, with DW1 making no attempt to proclaim his innocence or offer assistance in resolving the circumstances of the disappearance a situation that was only interrupted by his eventual apprehension. In his testimony, PW1 stated that he left home to attend to his activities, leaving the deceased at home with DW1. This piece of evidence indicates that DW1 was the last person seen with the deceased before her death. Given this, DW1 bore an evidentiary burden to provide a reasonable and credible account of the deceased's whereabouts. To determine whether DWl's explanation is credible and sufficient, it is essential to thoroughly evaluate his defence to ascertain if it effectively eliminates any reasonable doubt regarding his involvement in the death of Maria Raymond. In his defence, DW1 claims that he separated from the deceased in 2008 and had taken her back to her parents, suggesting that their relationship had ended by 2010. However, this assertion is directly contradicted by the testimonies of PW1, PW2, and PW4, who all confirmed that DW1 and the deceased were still living together as husband and wife until her disappearance in 2010. ii PW1 further testified that on 23rd July, 2010 he left DW1 and the deceased together at their home, implying that they had not been separated for two years, as DW1 had claimed. This inconsistency casts doubt on the credibility of DWl's defence and calls into question the accuracy of his account regarding their supposed separation. Additionally, DW1 failed to provide any corroborating evidence to substantiate his claim of divorce or separation, such as official documentation or testimony from family members who might have been involved in such a process. Although DW1 mentioned Peter Maliyamungu and Mzee Asiya as potential witnesses, he also noted that both have died, leaving no verifiable evidence to support his defence. In the event that DWl's account of their divorce were entirely true, it is highly improbable that only Peter Maliyamungu and Mzee Asiya would have knowledge of such a significant event. For example, DW1 stated that upon returning to the village, he met with his sister. It seems unlikely that his own sister would be unaware of his separation from his wife. This lack of corroborating witnesses raises serious doubts about the credibility of DWl's claim. Without any supporting evidence, his assertion of separation appears unsubstantiated and seems to be a deliberate attempt to distance 12 himself from the deceased following her disappearance and subsequent death. Had DW1 been separated from the deceased for two years, there would be no reason for his sudden disappearance to coincide with the heightened investigation into her whereabouts. His flight from the community strongly suggests an attempt to evade scrutiny, supporting the inference that DW1 was aware of his involvement in the deceased's death. The absence of any supporting evidence for DWl's claim of separation stands in stark contrast to the consistent testimonies from the prosecution witnesses, all of whom stated that DW1 and the deceased were living together at the time Of her death. DWl's failure to provide any verifiable evidence to support his claim leads to the reasonable inference that his defence is fabricated, further undermining the credibility of his account. As the deceased's husband, DW1 had an obligation to report her disappearance promptly or, at the very least, actively participate in the efforts to locate her, especially given the close-knit nature of their community. Instead, he displayed a striking indifference, offering evasive 13 responses to family inquiries and fleeing when their concerns grew more urgent. Furthermore, DVV1 asserted that after separating from the deceased, he moved to Nyamichiga, where he remained for twelve years before returning to Mwena in 2022. However, his failure to show any genuine interest in the investigation or to offer assistance during the search for Maria, coupled with his prolonged absence, raises further doubts about the veracity of his account. The appellants defence, asserting that he was in Nyamichiga Village at the time of the incident, constitutes an alibi defence in legal terms. This type of defence is governed by section 194 (4) of the Criminal Procedure Act [Cap 20 R.E. 2022], which stipulates that an accused person intending to rely on an alibi must notify both the court and the prosecution before the hearing begins. Subsection (5) further mandates that, if the accused fails to give prior notice, he must provide the prosecution with the specifics of the alibi before the prosecution's case is closed. In Moi Ikwabwe Matiko @Moi v. R (Criminal Appeal No. 491 of 2020) [2024] TZCA 625 (19 July 2024), the Court of Appeal expounded on these provisions, stating; 14 'Under section 194(4) of the CPA, the accused must provide prior notice of the alibi defence. The law recognizes that some accused persons may raise the alibi defence fate, and section 194(5) comes into play. If the accused relies on the alibi defence without giving prior notice or furnishing the prosecution with particulars of the alibi before the prosecution's case is dosed, the court, under section 194(6), has the discretion to determine the weight to accord to the alibi/ Upon examining DWl's alibi defence^ I find it unconvincing. He failed to provide any testimony or supporting evidence to corroborate his claim of residing in Nyamichiga for an extended period. Furthermore, PW2, the Village Executive Officer (VEO) of Mwena, testified that he was familiar with both DW1 and the deceased as residents of .Mwena Village. PW2 further stated that when Maria went missing in 2010, DW1 was still in Mwena but disappeared shortly afterward, directly contradicting DWl's claim of relocation to Nyamichiga. Therefore, I place no weight on this defence. In light of this analysis, DWl's defence lacks credibility and does not raise any reasonable doubt about his involvement in the death of Maria Raymond. His claim of long-term separation from the deceased is contradicted by the testimony of the prosecution witnesses, his evasive 15 responses regarding Maria's whereabouts, and his failure to present any evidence of his residence in Nyamichiga. The defence appears to be fabricated, especially in light of his flight following Maria's disappearance, which suggests a consciousness of guilt. The circumstantial evidence, coupled with the accused's lack of credible explanations and suspicious behaviour, strongly supports the conclusion that no one other than DW1 who is responsible for the death of Maria Raymond. Having concluded that it is D.W1 who caused the death of Maria, I continued to question whether DW1 acted with malice aforethought. Based on the manner in which the evidence was presented, it is abundantly clear that DW1 acted with malice aforethought. Malice aforethought refers to the deliberate intention to cause harm or death, or acting with reckless disregard for the consequences of one’s actions. In this case, the evidence points to a calculated and intentional act by DW1. First, DWl's evasive conduct, including his failure to report Maria's disappearance and his subsequent flight, suggests a conscious decision to avoid accountability, indicating awareness of the consequences of his actions. Second, the lack of any reasonable explanation for the deceased's 16 death or the circumstances leading to her disappearance further suggests that DWl's actions were not accidental but rather intentional. Additionally, the failure of DWl to assist in locating Maria or provide credible testimony supporting his innocence further strengthens the inference of malice aforethought. These actions collectively suggest that DWl not only intended harm but also took deliberate steps to cover up his involvement. Considering all the circumstances and evidence, I find Michael Thomas Thomas guilty of murder of Maria Raymond Jika and convict him under section 196 and 197 of the Penal Code [Cap 16 R.E 2022]. It is so ordered. Dated at Mtwara this 29th November, 2024. In determining the appropriate punishment for this offence, I am constrained by the law, as I am only permitted to impose the penalty prescribed under section 197 of the Penal Code [Cap. 16 R.E. 2022], which must be read alongside with section 322 of the Criminal Procedure 17 Act [Cap. 20 R.E. 2022]. Given the circumstances of this case, I hereby sentence Thomas Michael Thomas to suffer death by hanging. M.B Mpaze Judge zi Zj 29/11/2024 Court: The right of appeal in terms of section 323 of the Criminal Procedure Act [Cap. 20 R.E. 2022] is fully explained. Court: Judgment delivered this 29th day of November, 2024 in the presence of Mr. Jagadi Jilala, learned State Attorney for the Republic and Mr. Ally Kassian Mkali, learned Advocate for the accused and the accused. r << 'n > Judge .V - 29/11/2029 18