republic vs ally mohamed nyoni pepe 2023 tzhc 18553 30 june 2023

IN THE HIGH COURT OF TANZANIA (AT SONGEA) ORIGINAL JURIDISCTION (SONGEA DISTRICT REGISTRY) CRIMINAL SESSIONS CASE NO. 47 OF 2022 THE REPUBLIC VERSUS ALLY MOHAMED NYONI @PEPE JUDGMENT 16-30 June, 2023 E.B. LUVANDA, J Ally Mohamed Nyoni @ Pepe (the accused person herein) is indicated for murder contrary to sections 196 and 197 of the Penal Code, Cao 16 R. E. 2019. It is alleged in the particular of offence, that on 12/01/2022 at Matepwende village within Namtumbo District in .Ruvuma Region, the accused person did murder,one Swalehe Yasin Mlaponi. The accused denied the information. It was the prosecution case that on 11/01/2022 the deceased who was escorted by Nasoro Sharifu Mswahili (PW4), met the accused at Ligela Matepwende Magengeni around 20:00 hours, where the accused lured them that chickens for sale were available at Matimbuka, and promised to lead them there on the same night. The accused asked to have a meal at a food kiosk also to purchase two sheets, which he was sponsored by the late Swalehe Yasin Mlaponi. At around 21:00 hours after refueling a motorcycle, they commenced a journey to Matimbuka. On the way, they encountered some challenges here and there, the motorist (PW4) was unable to maneuver the terrain at the jungle, where the accused take a lead at the wheel. But shortly thereafter a motorcycle encountered technical fault and switched off lights, but they moved ahead assisted by the moonlight. On arriving at a certain gulley, the accused who bragged to be familiar there, said could not manage to locate the way towards the intended destination, meaning he was no longer rest assured as where they were heading to. At this juncture, the deceased directed to reverse back to Ligela Matepwende. On the way back, a motorcycle went off fuel (gas tank was empty). It is when the deceased managed to drudge a motorcycle up to Namaoka Area, on a certain hut with solar lights and benches, where they took a rest. The deceased dozed on the bench while seated, it was around 04:00 hours, on 12/01/2022. It is when PW4 saw the accused hitting the deceased on his head, by using a piece of timber locally known as bolt, (exhibit P6). PW4 squawked for help, where the accused lifted a piece of timber (exhibit P6) in view of attacking PW4, where the later narrowly escaped a blow, run away and took a hide somewhere on grasses. After dawn, PW4 moved around to look for assistant, where he saw good Samaritan (Sukuma people) who lead him (PW4) to locate a hut, and saw the deceased, sustained wounds on his head and lying the ground on critical condition. Thereafter, the village chairman one Ignas Daniel Mkinga (PW5) assisted to ferry the deceased to hospital, where he ultimately met his demise few hours later. Thereafter, Dr. Emmauel Bunzale Kitumba (PW2) conducted a postmortem examination on the deceased's body, and confirmed the cause of death was due to traumatic brain injury, as per a postmortem report exhibit P2. The accused was arrested and upon seeing PW4 the accused alleged to have said, PW4 is lucky as ought to be killed too. The accused also confessed before the justice of peace Kennedy Ernest Hyera (PW1), to have killed the deceased, as per the extra judicial statement exhibit PI. Immediately after arrest, the accused i was searched and found in possession of cash Tshs 279,300 (exhibit P5) alleged to be part of Tshs 400,000/= robbed to the deceased; a mobile phone We+ brand (exhibit P ll) alleged belonged to the deceased and other possession. On defence, the accused (DW1), alleged that he was arrested by civilians while on the way from purchasing requirements of beauty products for sale, and heading to his aunt at Matepwende, where he was accused for robbery. He alleged to had denied accusation, and asserted to have been beaten and forced to confess including before the magistrate and threatened to be punished. Ms. Edith Mauya learned State Attorney, Mr. Gaston Mapunda learned State Attorney and Mr. Elipili Tarimo learned State attorney were prosecuting officers, while Ms. Clara Blanketi learned Counsel and later Mr. Optatus Japhet learned Advocate appeared for the accused and represented him on pro bono. The issue is whether the prosecution proved her case to the standard. Principally, the evidence to this murder is a direct evidence. PW4 saw the accused hitting the deceased on his forehead, by using a piece of solid and heavy timber with nails (exhibit P6). Although the accused was a stranger to PW4, but taking into account the duration they stayed together from around 20:00 hours to 04:00 hours when the tragic event occurred, was all long enough to make a proper identification. At Ligela Matepwende Magengeni, where the accused took a meal at the food kiosk, there was a light. Along 4 the way to Matimbuka, there was a moonlight. At Namaoka River Area, in a hut,there was an intensity solar light, indeed the accused and PW4 were facinig each other, where the accused is allegedly to have contracted looking PW4 by soulful eyes. In this way, there is no room for mistaken identity. Above all, in the extra judicial statement exhibit PI, the accused confessed killing the deceased. A defence by the accused that he was given threats prior being escorted to the justice of peace PW1 to make a confession, is an afterthought, because when exhibit PI was tendered for admission, those arguments were not forthcoming, neither pleaded nor cross examined to PW1, and it was admitted without any objection. Indeed, DW1 did not say if PW1 forced or threatened him. A defence that he was arrested while on the way from purchasing commodities or products for beauty for sale and heading to his aunt, is a concoct. This is because the accused did not mention even a single product of beauty he purchased, neither stated as to whom or 't! * which shop he purchased nor stated its value. The accused failed even to name and mention his alleged aunt, nor stated her exact location. At any rate, a defence marshalled by the accused, cannot assist to exonerate him from the accusation of murder. 5 There were some discrepancies on the prosecution evidence, instance, while PW5 and D/Cpd Lujiga (PW8) asserted that those words of intention to kill PW4, were uttered by the accused to PW4 at the village office. However, the testimony of PW4 is silent if he visited at the office of the village, rather PW4 suggest those words were uttered while at the hospital. Be as it may, I have taken this discrepancy as a minor, as does not dent a prosecution central story that PW4 saw the accused hitting the deceased on the forehead region by using a piece of solid and heavy timber with nails, exhibits P6. This preceding fact indicate that the accused indeed had formed an intention to kill the deceased. This can be deduced from the part the blow was directed at the forehead, a nature of weapon being a piece of solid, heavy and nailed piece of timber with four angles, made from a wild tree. The number of blows, was inflicted more than once. I therefore rule that the information of murder was proved beyond, a shadow of doubt. The accused person is guilty of murder contrary to sections 196 and 197 Cap 16 (Supra), and is accordingly