Judgement REPUBLIC vs SIFAELI SARUNI KIVUYO Criminal Sessions Case No

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MOSHI CRIMINAL SESSIONS CASE NO. 22 OF 2023 THE REPUBLIC VERSUS SIFAELI SARUNI KIVUYO JUDGEMENT 28th October & 13th November, 2024 MONGELLA, J. In the case at hand, the accused, Sifaeli Saruni Kivuyo, stands charged with the offence of murder contrary to Section 196 and 197 of the Penal Code, Cap 16 R.E. 2022. He is accused of murdering one Rodgers John Kesy @ Baraka at Mnazi-Shah Tours area within Moshi district in Kilimanjaro region. The offence is recorded to have occurred on 10.05.2021. The deceased’s unnatural death was proved by a number of prosecution witnesses, including PW9, the investigating police officer, one PF 21481 Ass. Insp. Sunday Nzali, who also tendered the postmortem report (PMR), which was admitted as Exhibit P7. The PMR revealed the cause of the deceased’s Page 1 of 8 death to be “severe traumatic brain injury” whereby the deceased was found with a big wound on his head which was bleeding. The deceased’s father, PW7, corroborated the testimony of PW9 as he witnessed examination of the deceased’s body. It should be noted that the deceased pleaded guilty to the charge when the same was read out to him. However, considering that it was a murder case, the prosecution was still tasked to prove the offence against the accused beyond reasonable doubt as required under the law. It was the prosecution case that the accused murdered the deceased with malice aforethought in the course of executing his motive to steal from him money and a motorcycle (Exhibit P3) driven by the deceased. The prosecution also took into consideration the weapons used to perpetrate the murder which were a piece of wire-Exhibit P2A and an iron hammer-Exhibit P2A. It also considered the witnesses evidence that the accused and his relative, one Emmanuel Saruni Kivuyo wanted to dispose off the deceased’s body to conceal their actions. The said Emmauel was charged together with the accused, but for the offence of accessory after the fact to murder contrary to Section 213 of the Penal Code, Cap 16, R.E. 2022. He pleaded guilty to the charge and was sentenced to conditional discharge. In his defence, the accused confessed into killing the deceased, but defended that it was out of self defence. He explained that on 10.05.2021, he came to Moshi, from Sanya Juu area where he lived, to visit his drawing skills teacher. Page 2 of 8 He said that when he arrived at Moshi-bus stand, his teacher received him and took him to the place he does his work. He named the said teacher as one Elia Laizer. He proceeded that when we arrived at his teacher’s place of work, his teacher gave him the keys to his house and told him go to his home to have some rest. When he arrived at his home, he found a motorcycle outside. He opened the door whereby he found inside the house the lover of his teacher. That, the said lady was with a young man called Rodgers John Kessy, who he did not know by then. The accused testified further that after he opened the door, his teacher’s lover asked him as to who he was and he told her that he was sent by his teacher to go there and rest. That, the said lady told him she did not know him, thus he should get out, else she would raise an alarm for a thief. He alleged that after being told that, the young man who was inside woke up and started to attack him on his head using a mirror. He then pushed that young man who fell on an iron pole at the edge of the bed. That, after seeing that, the lady ran away and he as well ran away going back to his teacher’s work place. He claimed that when he arrived there, he explained the whole event to his teacher. His teacher told him to stay with his workers so that he goes to his home. That, later, after a while, his teacher came back to his office with the motorcycle that he had found outside his teacher’s home. He added that his teacher then told them to close the office and have some rest. That, he thereafter left and he did not know where he went. Page 3 of 8 The accused continued to defend that in the morning, his teacher phoned him informing him that he was arrested by the police. He told him to go to his home. He said that he decided to go as directed, but before reaching there, on the road, he found a crowd of people gathered and a police vehicle. That, he saw his teacher inside the police vehicle. He claimed that after he had introduced myself to the police, they told him to go to the police station to issue my statement. At the police station, he was told to give his statement, but he refused to give the statement because he was alone. He further claimed that, later he was beaten and forced to give his statement, which he did and signed. Then later, he was taken to the Justice of Peace. Speaking about his cautioned statement, which was tendered by PW9 and admitted as Exhibit P6, though claimed the same to have been procured involuntarily following a beating, he admitted before this Court that he truly confessed through the cautioned statement. He said that later, he was taken to the Justice of Peace whereby he also issued his extra-judicial statement in connection with the reality of the incident. When probed by the Court, he claimed that what he had testified before this Court was exactly what he confessed before the Justice of Peace. On account of his testimony, he concluded by praying for the Court not to find him liable for the offence of murder and set him free. After considering the accused’ s testimony in defence, I find it clear that the accused still confessed on killing the deceased. In law, there is no better evidence in criminal cases that the accused person’s own confession. See: Page 4 of 8 Jacob Asegelile Kakune vs. D.P.P. (Criminal Appeal No. 178 of 2017) [2020] TZCA 75 (24 March 2020); Ibrahimu Ibrahimu Dawa vs. Republic (Criminal Appeal No. 260 of 2016) [2018] TZCA 438 (10 May 2018); and Mohamed Haruna Mtupeni & Another vs. Republic (Criminal Appeal No. 259 of 2007) [2010] TZCA 141 (4 June 2010). However, considering the accused’s defence that the murder occurred out of self defence, I find the question lies as to whether the accused should be held liable for the offence of murder or for a lesser offence of manslaughter. The prosecution evidence, particularly on cautioned statement-Exhibit P6, shows that the motive behind the offence was to steal from the deceased. On the other hand, the accused claimed that he was recorded an extra- judicial statement before a Justice of Peace, which contained the statement he adduced in his defence whereby he pleaded self defence. He claimed to have not been given a copy of the extra-judicial statement. As much as the accused never objected to the cautioned statement rendering him to have accepted the facts alleged therein as correct, in accordance with various decisions, I find the same rules also binding the prosecution side as it as well never objected to the facts alleged by the accused regarding being recorded an extra-judicial statement. See: Martin Misara vs. The Republic (Criminal Appeal No. 428 of 2016) [2018] TZCA 318 (13 December 2018); and George Maili Kemboge vs. Republic (Criminal Appeal No. 327 of 2013) [2014] TZCA 203 (30 October 2014). Page 5 of 8 I have further considered the environment in which the offence occurred, particularly from the testimony of PW4, who allegedly was the land lady of the accused person. She testified that she was present when the accused and the deceased arrived and the two left her outside when entered the accused’s room. Under such environment whereby the accused had noted that a third person has seen him, I do not find it possible for him to have executed a pre-meditated murder, if any. From the prosecution evidence, it is not very clear as to what exactly happened in the said room. As such, the accused person’s version can be safely given benefit of doubt. In the premises, I find the accused to have caused the death of the deceased, but considering his defence, I find him not liable for the offence of murder, but for a lesser offence of manslaughter. As such, the accused person SIFAELI SARUNI KIVUYO is hereby convicted for the offence of manslaughter contrary to Section 185 and 198 of the Penal Code, Cap 16 R.E. 2022. SENTENCE In reaching the sentence herein, the Court had considered the aggravating and mitigating factors by the prosecution and defence side, respectively. The prosecution, despite acknowledging that the accused was a first offender, wished for the accused to be given a severe punishment in consideration of the manner in which he killed the deceased using a dangerous weapon and the body parts attacked, which are delicate. It as well urged the Court to consider the fact that the accused curtailed the live of the deceased and the assistance he offered to his family. The prosecution also wished for a severe Page 6 of 8 punishment as a deterrence to future offenders and in consideration of the fact that the accused worked on concealing the truth after committing the offence. On the other hand, the defence side called for a lenient sentence taking into account the accused’s plea of guilty and confession from the beginning. They also called for the Court to consider the age of the accused and the fact that he is so remorseful of his actions. Further, that the accused had already spent three years in prison since he was arrested and he is suffering from epileptic fit whereby the prison condition is not conducive to his health. That, he also has a small child as upon arrest, he had a pregnant girlfriend. Apart from the mitigating and aggravating factors, I have further considered the weapon used whereby the accused used a hammer to hit the deceased on the head. Even if he was provoked or attacked first as he claimed, he could still have used other means to escape the conflict or react proportionally. In addition, as prayed by the prosecution, his act of concealing the truth after committing the offence also has been heavily considered. Further, as argued by the prosecution side, the manner in which the offence was committed falls under the highest level of commission for the offence under the Tanzania Sentencing Guidelines, 2023 whereby the punishment ranges from 10 years as minimum punishment to life imprisonment. Page 7 of 8 In consideration of all these factors, and the fact that the accused pleaded guilty and had confessed his crime from the beginning, this Court sentences the accused person, SIFAELI SARUNI KIVUYO to an imprisonment term of 18 years. However, the time he had already spent in custody is hereby deducted. The accused shall therefore serve fifteen (15) years in prison. Order The motorcycle and the deceased’s mobile phone should be returned to the deceased’s family. The accused’s mobile phone should be returned to the accused’s family members. Other exhibits should be disposed off by being destroyed or otherwise. Dated and delivered at Moshi on this 13th day of November, 2024. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 8 of 8