Judgement REPUBLIC vs JULIUS FLAVIAN MBUYA Criminal Sessions Case No

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MOSHI CRIMINAL SESSIONS CASE NO. 21 OF 2023 THE REPUBLIC VERSUS JULIUS FLAVIAN MBUYA JUDGEMENT 23rd October & 13th November, 2024 MONGELLA, J. The matter at hand concerns a murder charge facing Julius Flavian Mbuya (the accused, hereinafter). As depicted from the charge, the murder incident occurred on 28.12.2022 at Njia-Panda Himo area within the district of Moshi in Kilimanjaro region. The victim of the offence is one Innocent Elineema Masimbi, a motorcycle driver famously known as “bodaboda.” When the charge was read to him, the accused denied committing the offence. This led the prosecution into leading evidence to prove the charge against him. In total, the prosecution mounted five witnesses. Its case was to the effect that; the accused hired the deceased at Njia-Panda area to drive Page 1 of 7 him to Himo. Later the deceased was found dead in a water channel. The postmortem examination report tendered by PW2, one E9145 D/SSGT FREDRICK-the investigating police officer, and admitted as Exhibit P1, revealed that the deceased died out of multiple injuries on the head resulting from being hit by a heavy blunt object. The defence was given a chance to have the medical doctor who conducted the postmortem examination summoned for cross examination, but forfeited to exercise that right. In the premises, the Court records no dispute as to the deceased’s death being unnatural. Following the observation as to the deceased’s death, the prosecution remains with one task of proving as to whether the accused is guilty of the offence he stands charged with. Among all five prosecution witnesses, there is no single witness who can be firmly ruled to have witnessed the commission of the offence. PW5, one, Sharifu Abrahamu Mfinanga a fellow bodaboda driver with the deceased, claimed to have witnessed the deceased being hired on the date he died. He said that while at their bodaboda stand, a certain tall person standing on the other side of the road called for transport. Then, the deceased was the one who rushed ahead of them for that customer and he saw them heading to Himo. Since it was at around 00hours and the person was standing at a distance, PW5 said that he could not identify the face of the said person. This witness was not so helpful to the prosecution case as Page 2 of 7 he could also not identify the accused in the dock as the person who hired the deceased that night. The other evidence that pointed to the accused as the culprit is that of PW2, the police officer who investigated the offence. He was the lead investigation officer. He claimed that the accused orally confessed before him and another police officer. Explaining what transpired, he testified that in the course of conducting his investigation, they received various information from secret informers whereby all the information received from the alleged secret informers pointed to the accused person as the one involved in the murder of the deceased. He said that they first made close follow-up to search for him at all the places he frequently visited, but did not succeed as he was nowhere to be seen. He stated that they continued to follow-up on the accused and in the end of January 2023, they got information that the accused was back at Himo, but used to be seen at around 01-02hours at night at Mombasa Highway bar. The said Bar operated 24 hours. That, after such information, they planted a secret informer at a nearby place so as to inform them the moment he arrived at the Bar. PW2 continued to testify that on 26.02.2023, at 23hours at night, he was phoned by the alleged secret informer who informed him that the accused was at Mombasa High Way Bar. Following that information, he called his fellow officer, one Inspector Sechelengo so as to arrest the accused. He said that they both arrived at Mombasa Highway Bar and together managed to arrest the accused inside the Bar. That, after arresting the accused, he phoned Himo-police station asking for a vehicle. The station was at a Page 3 of 7 distance of not more than 200 metres. That, while waiting for the vehicle, they interrogated the accused on his involvement in the offence. He said that the accused confessed committing the offence and that he had kept the deceased’s motorcycle at his home in Holili area. PW2 testified further that later the police vehicle arrived with two (2) armed police officers. Then they decided to go to the accused’s home so that he shows them the motorcycle he had told them to have kept in his home. Speaking about the time, he said that it was around 23 to 00hours at night when they left the Bar. Speaking about the accused’s behaviour in that journey, he said that upon arriving at Holili, the accused changed. He did not take them to his home, instead, he told them that he had sold the motorcycle at Tarakea area, to his friend named Thom. He added that at Holili, they arrived at around 00:15hours at night. That, they could not manage to go to Tarakea as they had no enough fuel. In the circumstances, he said, they had to go back to Himo to fuel the vehicle so as to be able to reach Tarakea. It was around 01hrs at night when they left Himo to Tarakea after fueling the vehicle. That, they arrived at Tarakea at around 02hours at night. He added that after reaching Tarakea, the accused took them to about three different places claiming not to remember where the said Thom lived. That, activity took them to 04:30hrs in the morning searching for the alleged Thom’s house. Seeing that situation, PW2 alleged to communicate with his superiors, the head of Himo-police station and head of investigation at Himo-police station, who directed them to stop the search Page 4 of 7 of Thom’s house and go back to the station as the process was consuming time and fuel resources. So, they left Tarakea with the accused, at around 04:45hours heading back to Himo-police station. They arrived at Himo police station at around 06:30hours whereby he handed the accused at the charge room office “chumba cha Mashtaka”. PW2 further stated that after handing the accused at the charge room, the accused was taken by another police officer, one ASS. Insp. Lameck, for interrogations and recording of cautioned statement. He said that the said officer, upon completing recording the cautioned statement, handed the same to him as the investigator of the case. He said that he read the statement to see what the accused had stated. That, in the statement, the accused confessed murdering Innocent-the deceased, taking the deceased’s motorcycle and selling it to his friend named Thom at Tarakea area. PW2 was firm that the accused was the culprit in the offence in consideration of his actions. Speaking further about the accused’s actions, he stated that first, he ran away after the incident. He said that he went to his home and interrogated his wife who said that she last saw him on the night of 26th. Second, he said that the accused’s actions of returning to Himo at 01- 02hours at night leading them to arrest him at that time raised eyebrows. Third, that, after arresting him, he confessed to have hired the deceased telling them that when he and the deceased arrived at Muungano Sec. School area, he hit the deceased with a heavy object on the head, though he never explained what the heavy object was. Fourth, he connected the PMR with the deceased’s body condition. On that he said that the PMR revealed that Page 5 of 7 the death of the deceased was caused by being hit with a heavy blunt object and the murder incident occurred on the night of 27th to 28th December 2022. He finalised his testimony by identifying the accused in the dock by pointing at him. The alleged Ass. Insp. Lameck, indeed recorded the accused’s cautioned statement. He appeared as PW4 to testify and tender the cautioned statement. However, the cautioned statement was objected by the defence on ground of being recorded out of time an being recorded in the presence of other police officers. The second objection followed PW4’s own account of the environment of the interrogation room to the effect that it was big room used by a number of police officers who continued with their daily activities alongside the interrogations. Considering the various authorities settled by the Court of Appeal, including that of Charles Issa @ Chile vs. Republic, Criminal Appeal No. 97 of 2019 (CAT at Mbeya), the prosecution conceded to the objection and withdrew tendering of the cautioned statement as well as the testimony of PW4. In the premises, the prosecution remained with only PW2’s testimony in linking the accused to the offence charged. Considering seriousness of the offence the accused stands charged, I find it unsafe to rely on PW2’s speculation as to the accused’s alleged conducts to enter a conviction against him. As such, I shall only scrutinize part of PW2’s testimony to the effect that the accused orally confessed before him and officer Sechelengo to have committed the offence. Page 6 of 7 I am alive at the settled position that oral confessions before reliable witnesses can lead to conviction against the accused person See, Alex Ndendya vs. The Republic (Criminal Appeal No. 207 of 2018) [2020] TZCA 202 (6 May 2020). However, the Court must be satisfied that such confession, whether made before civilians or not, was made freely and voluntarily. See, Chamuriho Kirenge @ Chamuriho Julius vs. Republic (Criminal Appeal No. 597 of 2017) [2022] TZCA 98 (7 March 2022). The prosecution thus had to lead evidence to prove that the oral confession before PW2 and the said Insp. Secherengo was made freely and voluntarily or whether it led to discovery of some relevant facts. Unfortunately, this was not the case in the matter at hand. As such, it is unsafe for the Court to rely on such testimony in the absence of other independent witnesses. To this juncture, in consideration of the observations I have made hereinabove, I find the prosecution has failed to prove the charge of murder against the accused person, beyond reasonable doubt. In the premises, I find the accused JULIUS FLAVIAN MBUYA, NOT GUILTY of the offence of murder he stands charged with contrary to Section 196 and 197 of the Penal Code, Cap 16, R. E. 2022 and consequently acquit him from the same charge. Dated and delivered at Moshi on this 13th day of November, 2024. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 7 of 7