republic vs joel joseph nziku 2023 tzhc 22941 15 november 2023

IN THE HIGH COURT OF TANZANIA (IRINGA DISTRICT REGISTRY) SITTING AT NJOMBE CRIMINAL SESSIONS CASE NO. 108 OF 2021 REPUBLIC VERSUS JOEL JOSEPH NZIKU JUDGMENT 1st November & l$h November, 2023 MRISHA, J The presence of social disputes and lack of civilization in the society may sometimes, lead to unnecessarily loss of life to some members of the society thereby leaving behind their loved ones with sadness and psychological torture, if not settled amicably and eliminated. This judgment can be a good example to fortify the above proposition. It relates to the deaths of Godiiver Nziku, Gasper Nziku and Giliad Nziku, the beloved children of Mr. Danford Anthony Nziku, whose deaths are alleged to have been caused sometime in 2019 by one Joel Joseph Nziku, who is the son of Mr. Danford's late brother and senior father of the above-named deceased persons. i It is alleged that the family conflicts between the accused person and his junior father are the ones which motivated the said accused person to commit those brutal acts. I have purposely decided to use the word "brutal"because looking on the manner in which the deaths of the said deceased children occurred, it appears crystal clear that the killer of those children used a stone to hit them on their heads at different times deaths; hence causing their deaths. Before this court, the accused person Joel Joseph Nziku, stands charged with three counts of Murder contrary to section 196 and 197 of the Penal Code [Cap 16 R.E. 2019] (now R.E. 2022] henceforth the Penal Code. In the first count it was alleged that on the 20th day of January, 2019 at Ikando village, Kichiwa Ward, Makambako. Division within Njombe District in Njombe Region, Joel Joseph Nziku did murder one Godliver d/o Nziku. In the second count it was alleged that on the 20th day of January, 2019 at Ikando village, Kichiwa Ward, Makambako Division within Njombe District in Njombe Region, Joel Joseph Nziku did murder one Gasper s/o Nziku, and in the third count, it was alleged that on the 20th day of January, 2019 at Ikando village, Kichiwa Ward, Makambako Division •> within Njombe District in Njombe Region Region, Joel Joseph Nziku did murder one Gitiad Nziku. Upon being informed of the above information in Swahili language clearly understood by him, the accused person pleaded not guilty to all counts, then the prosecution Republic brought nine (9) witnesses and five (5) exhibits in order to prove their case against the said accused person. On his side, the accused person Joel Joseph Nziku stood as the sole defence witness with no exhibit to tender. When the matter was called on for hearing, the prosecution Republic was represented by Ms. Pienzia Nichombe, learned Senior State Attorney who was assisted by Ms. Dhamiri . Masinde, learned State Attorney, whereas the accused person had the legal services of Mr. Alex Mgani, learned Advocate. The first witness to testify in favour of the prosecution Republic, was one Danford Anthony Nziku (PW1) who introduced himself as the biological father of the deceased persons. Testifying in relation to the incident leading to the demise of the deceased persons, PW1 narrated that on 20.01.2019 during morning hours, he took-off at his home with his wife called Anumie Mangula in order to go to his farm to burn charcoal for business purposes. He left o behind his three children (now the deceased persons) at his home which is located at Ikando Village in Njombe District. That upon arriving home at around 1900 hours, PW1 and his wife did not find the said children. Thereafter, he began to trace their whereabouts by approaching his children's friends one Antiva Pilos Nziku and Philemon Kambona Kaduma, who testified before this court as PW2 and PW5 respectively. That upon queering them, they told him and his wife that his three children were taken by one Joel Joseph Nziku, who is their brother. Following such information, PW1 reported the matter to his village leaders and proceeded to report the same at Makambako Police Station on 21.01.2019, that his three children had been taken by the accused person to unknown place without his consent. Thereafter, the police initiated their investigation by going to the premises of the accused person in order to conduct search. However, according to PW1, they did not find his children, nor the accused person at that moment. PW1 also testified that on 27.01.2019 he was called by the OC-CID of Makambako Police Station one ASP Yesaya Sudi (PW8) who informed him that three dead bodies had been found and kept in the mortuary of 4 Kibena Hospitai which is within Njombe District; so, he was required to go there on the following day for identification purpose. That on 28.01.2019 PW1 responded to the police call by going to Kibena Hospital whereby upon being allowed to access the mortuary room, he managed to identify the said bodies before the police and the doctor, that they were exactly the bodies of his three children who were allegedly been taken by the accused person on 20.01.2019, then they were handled over to him and his relatives for burial processes after being medically examined by the doctor. Another factual explanation by PW1, was that prior to the incident of murder of his three children, he had grudges with the accused person who used to blame him for bewitching his children and denying to vacate from his late father's premises. PW1 also told the court that there was a time when the accused person began to threat him by going to his home with a tyre and told his wife that the same was meant for him. That, due to the said conflicts, PW1 reported to the village chairman who summoned the accused person and tried to reconcile them. In the end, the accused person regrated and promised not to repeat again. However, according to PW1, soon thereafter it was revealed that the accused person took his three children to Makambako without his c consent, and the efforts to find them alive failed unti; or 28.01.2019 when he found them dead. Another piece of evidence from the prosecution Republic, came from PW2 and PW5- Their testimonies resembled on two important aspects: first, in the course of adducing their evidence, they all joined hands by telling the coud: that on the day in question which is 20.01.2019, they were playing with the three children of PW1 who were their close friends. That, as they were playing, the accused person approached the house of PW1 and asked Goldliver Nziku, Gasper Nziku and Giliad Nziku to escort him to the nearby valley to show him the planted trees. Also, PW2 and PW5 testified that before the accused left with the deceased persons, he told them to go back to their homes claiming that they were called by their parents. The second resembling feature in the testimonies of PW2 and PW5, is that they are the ones who informed PW1, leaders of Ikando Village and the Police Force, that the accused person is the one who picked the three children of PW1. They also testified that prior to the incident, they used to know the accused person very well as he was residing in their c village called Ikando, as a peasant who had tree plantations before he shifted to Makambako township. Another prosecution witness was Jackson Thomas Banobi (PW3) who testified that as a Justice of Peace, that he is the one who recorded the Extra Judicial statement of the accused person Joel Joseph Nziku who on 06.02.2019, confessed before him that he is the one who killed the deceased persons namely Godliver Nziku, Gasper Nziku and Giliad Nziku by using a stone. PW3 also testified that before recording the said statement, he complied with all the preliminary stages of recording extra judicial statement and began to record the said statement after satisfying himself that the police were not within the court premises and that the accused person consented to make his statement before him on his free will and knew the legal consequences of the statement he was going to make before him. PW3 testified further that the accused person confessed before him that before killing the said deceased persons, he picked them from their parents' home at Ikando Village, .boarded them in his iorry and proceeded to Aga filo area where he began to kill them one after another by using a stone which he picked alongside Agafilo river. 7* PW3 went on narrating that after finishing to record the extra judicial statement of the accused person, he read the contents of that extra judicial statement to the accused person who thereafter confirmed to him that the Sc-’me were correct, then he let the accused person to sign on the said statement and finally he signed and placed an official stamp on it before he could handle over the said accused person and the extra judicial statement to the police. Having finisher, to adduce his evidence, PW3 prayed to tender the said extra judicial statement for it to be admitted as an exhibit and the court admitted it as Exhibit Pl since there was no objection from the defence counsel. Next to the above prosecution witnesses, was No. E. 8390 D/Surgent Hamis who testified as PW4. His evidence was that on 07.02.2019 he was instructed by his superior boss one ASP Yesaya Sudi (PW8) to take the accused person from the lockup because accused person wanted to lead the policy to the scene of crime where he had killed the deceased persons. That after complying with the instructions of his superior boss, PW4 accompanied PW8 and other police officers to the scene of crime which is at the District and Region of Njombe, with the lead of. the accused o person who upon arrival, showed them the places he had killed the deceased persons. He also showed them the points where he had thrown the body of the deceased namely Godliver Nziku into the water of River Agafilc and where he had thrown the stone after using it to kill the said deceased persons. The sixth prosecution witness was Jackton Salon Mgaya (PW6) who adduced his evidence as PW6. He told the court that on 27.01.2019 he was called by <? citizen called Neerna Lupenza who informed him that on that date, she found a body of a female child which was hanging on a tree near Agafi'o river. That, as a ten-cell leader by then, he rushed to the scene of crime where he saw a human body stucking on the tree near Agafilo river, then he called the police and informed them about the incident. Soon thereafter, the oolice officers arrived at the said scene of crime, removed the said human body from the tree and left the area with the said body in order to keep it at the Hospital, since none of the villagers managed to identify it by that time. Thereafter, came Jesca Mathias (PW7), who testified that on 21.01.2019 she was called and informed by one of the good Samaritan that there was body of a male child found along the Uwemba-Ludewa road, and 9 after receiving such information, she went to the scene of crime where she found a su'phate bad, then she calied the police and informed them about the incident. Soon thereafter, they reached at that area and opened the said sulphate and found the dead body of a male child, then they took the said body to Kibena Hospital. PW7 also testified that on 27.01.2019 another good civilian called and informed her that there was some cad smell near the same place the body of the first child was found. As usual, she informed the police of Uwemba Police Station who arrived at the crime scene, inspected the area succeeded to find another dead body of a male child which by that time, had already been discomposed as it had insects. PW7 testified further that on 07.02.2019 the accused person Joel Joseph Nziku led her and the police officers including PW8, to the crime scenes and showed them the places where he had killed the deceased persons by using a stone which he had picked at Agafilo river. That apart from showing such points, the accused person also showed the convoy team the points where he had thrown the body of the deceased Godliver Nziku and where he had thrown the stone after using it to kill the deceased persons. io PW7 further testified that the accused person led the convoy to other places and showed them where he had killed the remaining male children by using the same stone and deserted their bodies. Another prosecution evidence adduced by PW8, was that after tracing the whereabouts of the accused person in connection with allegations of picking the children of PW1 without their parent's consent, on 21.01.2019 he and his subordinates managed to apprehend the accused person at Mwembetogwa street in Makambako township and proceeded to seize his motor vehicle with registration number T 563 AWJ make Mitsubishi Fuso to Makambako Police which was allegedly said to have been used by the accused person in carrying the deceased persons to the crime scenes. Also, PW8 testified that he continued with an investigation, and on 27.01.2019 he was called and informed by the OC-CID of Njombe Police Station one ASP Mnuo, that three dead bodies of children had been found and kept in the mortuary of Kibena Hospital. Thereafter, he informed PW1 and asked him to meet him at Kibena hospital for identification. That upon arrival at Kibena hospital on 28.01.2019 with his relatives, PW1 managed to identify the said dead bodies as being of his three u.. children who disappeared in the past few days. Thereafter, a postmortem examination of the said bodies was conducted by the medical doctor, then the same were handled over to PW1 and his fellow relatives for bunal processes. PW8 also testified that on 06.02.2C19, the accused person confessed before him that he is the one who killed the three children of PW1, and told him that he was ready to lead him to the scene of crime in order to show him the places where he had killed those children. However, PW8 said that before going to the crime scenes under the direction of the accused person, he instructed one of his subordinates to record the cautioned statement of the accused person, and another to take the accused person to the Justice of peace for his extra judicial statement to be recorded. According to PW8, thereafter the accused person led him, his subordinate police officers and other village leaders to the scene of crime and did as he had promised him before. Having adduced such evidence, PW8 prayed to tender the certificate of seizure as well as the motor vehicle of the accused person and the same were admitted by this court as exhibits P3 and PW4 respectively, due to want of objection from the defence side. 12 The iast for the prosecution side, was Dr. Robert Kinyarnagoha,. a medical practitioner who testified as PW9. His testimony was to the effect that on 28.02.2019 the deceased bodies were identified to him by PW1 who told him that one of them was of a female namely Godliver Nziku and the rest were the bodies of male children namely Gasper Nziku and Giliad Nziku; thereafter, he began to conduct postmortem examination of the said bodies. That, through his examination, he observed that the said children were assaulted by a blunt object on their heads because each of them had severe head injuries with blood clots and one of them had a skull depressed injury. That, after completion of the exercise, PW9 prepared the Postmortem examination Report forms and submitted it to the police, then the deceased bodies were handled over to the relatives for burial process. PW8 then identified the said forms and requested the court to admit them as exhibits. As there was no objection from the defence side, the same were admitted collectively as E?<hibit P5. On his side, the accused person Joel Joseph Nziku led his defence as DW1 by strongly denying the above serious allegations him. Before he could start th "owing balls to the adverse party, the accused person 13. admitted that he was arrested by PW8 and other police officers with his car when he yvas loading sacks of maize at Mwembetogwa street in Makambako township. He also admitted that PWI whose report to the police of Makambako Police Station, led to his arrest on 21.01.2019, is his junior father. Thereafter, DW1 began to narrate that he knows nothing about the incident of deaths of the deceased persons because on 20.01.2019, he was not at the home of PWI, but he went to the church at Makambako and returned to his home where he stayed with his wife without going anywhere. He also said that the offence of murder with which he stands charged, was framed by PWI and PW8 because first, PWI had vowed to acquire his landed properties which are located at Ikando village, and secondly, PW8 fixed him with criminal offences including murder because on 12.12.2018 he denied to lend him 600 timbers through Afande James, then on 21.01.2019 he was arrested by Afande James. DW1 also claimed that he believes the allegations levelled against him might have been framed by PW8 who conspired with PWI, because PW8 married one Zuhura Nyagawa who is his concubine and they have one child called Proper Joel Nziku. 14 DW1 went on denying the fact that he confessed before PW8 that he is the one who killed the deceased persons and that he led the police to the scene of crime. He wondered why the alleged caution statement was not tendered in evidence, if he had so confessed. Regarding the evidence of PW1 who is his junior father, DW1 said that he did not have any conflict with that prosecution witness because PW1 did not report to the police, neither did he tender in evidence any document from: the Village office to prove that they had such conflicts, nor did he summon any witness to prove existence of such conflicts. In relation to exhibit P2 which is the extra judicial statement, DW1 testified that he did not confess before PW3 rather he was forced by PW8 that he should sign the document to be recorded by a justice of peace. The accused person went on challenging the prosecution evidence by stating that he did not use his car to carry the three children of PW1 to unknown place's because his car is for carrying luggage, not passengers. Another piece ? of evidence from DW1, was that he did not kill the deceased persons in that car. It was due to the above defence evidence, that the accused person Joel Joseph Nziku urged the court to frd him not guilty of an offence of 15 murder and acquit him. He also prayed that his car which was seized and tendered by PW8 as an exhibit, be restored to him. , It is worth noting to indicate at his juncture, that al! the above witnesses were subjected to cross examination and some of them examined by the court in order to get clarification on some important aspects. Therefore, the court will use their response to those questions where need arise. As it has already been indicated above, the accused person Joel Joseph Nziku stands charge with an information of murder contrary to section 196 and 197 of the Penal Code. Despite the evidence adduced against him by the nine (9) prosecution witnesses, the accused person has distanced himself from the above serious allegations which if proved beyond any reasonable doubts, may lead him to be convicted and sentenced to suffer death by hanging which is the oniy penalty provided by the law as of today. The task of the court at this moment, is therefore to find out whether the prosecution Republic has passed the test of proving that homicide offence against the accused person beyond any reasonable doubts. 16 In order to win conviction in respect of an offence of murder, the prosecution must prove existence of all the ingredients constituting that offence, beyond any reasonable doubts. They are: i) That the deceased persons are really dead. ii) That the death was caused by the accused person unlawfully Hi) Hi) That there was malice aforethought and iv) That the accused person directly or indirectly took part in the commission of the murder. However, before testing whether the above ingredients have been proved on that standard, I wish to point out that since the prosecution case is cemented on circumstantial evidence, then it is important to apply the principle (s) of law governing application of such kind of evidence; See Saidi Bakari vs Republic, Criminal Appeal No. 422 of 2013 and Michael Mgowole and Another vs The Republic, Criminal Appeal No. 205 of 2017 (both unreported). In the latter case, it was stated by the Court of Appeal that: "The principle for basing a conviction on the basis of circumstantial evidences has been indicated in a number of decisions of this Court and the law is well settled that each and every incriminating circumstance must be cleariy 17 established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible". [Emphasis supplied]. I am therefore, bound to apply the above principle of law in determining the present case due to the fact that none of the prosecution witnesses in the instant case has told the cou’.t that he saw the accused persons killing the deceased persons. . . .. Back to the case at hand, it is not in dispute that the deceased persons namely Godliver Nziku, Gasper Nziku and Giliad Nziku who are the subject of this-case, are really dead. I am certain to say so because first, both parties in this case have not locked horns on the fact that the above deceased persons died on 20.91.2019, secondly, there is evidence of PW4, PW6, PW7 and PW8 whose testimonies clearly indicate that soon after disappearance of the deceased persons at their parents' home, their bodies began to be found on 21.01.2019 and 27.01.2019 being in unnormal condition and with wounds on their heads. 18 Also, the evidence of PW9 who is a medical expert, proves the first ingredient of murder of the deceased persons. His evidence is supported by Exhibit P5. For instance, in the first PF3 of the deceased person namely Godliver Nziku, it is revealed that the cause of her death was due to blunt-temporal-zygomatic injury with fracture of hyoid bone. In the second PF3 of the deceased person namely Gasper Nziku, it is indicated that the cause of his death was due to blunt injury with depressed haematoma on the parietal bone. Also, looking on the contents of the third PF3 of the deceased person who is Giliad Nziku, it appears that the cause of his death was due to severe head injury due to skuH blunt compressionai injury of head with haematoma. When cross examined by the learned defence counsel, PW9 said that he did not conduct autopsy, but used IPPA to examine the deceased bodies. According to him, "I" stands for Inspection (to look at the body part), first "P" stands for Palpation (examine part of the body by touching), second "P" for Percussion (tapping body parts with fingers, hands, or small instruments as part of physical examination) and "A" for Auscultation (the action of listening to the sounds from the heart, lungs, is or other organs as a part of medical diagnosis or during physical examination. In my view, the way PW9 responded to that cross-examination question did not affect his credibility, but helped to make a more clarification on how he examined the said deceased bodies in order to discover the cause of their deaths. It is due to the above evidence and reasoning, that I am inclined to find that the prosecution has proved beyond any reasonable doubts that the deceased persons are really dead and their deaths are unnatural. I now turn to the second ingredient of an offence of murder which is about causation of the deceased deaths. The guiding question here is whether the accused person is responsible for causation of the deceased deaths. As I have indicated above, none of the prosecution witnesses testified before the court to have seen the accused killing the deceased persons on the day in question and the accused person has maintained his previous stance due to absence of eye witness evidence on that aspect. In the light of the above evidence alone, it cannot be said that the accused person is responsible for causation of the deceased deaths as 20 there is no eye witness from the prosecution side to prove that • » important element. Having observed so, I think that the important question is whether the remaining prosecution evidence suffices to prove that the accused person is actually the one who caused deaths of the deceased persons. The principle of law as stated by the Court of the land in the case of Michael Mgowole and Another vs The Republic (supra), will guide me in finding cut whether the prosecution evidence meets the threshold therein as far as the above second ingredient of murder is concerned. I will start my deliberation by looking on the chain of events available in the remaining prosecution evidence. First, the prosecution evidence reveals that before the incidents of murder of the deceased persons, DW1 had grudges with PWi who is his junior father. According to the testimony of PWI, DW1 threatened him for allegedly denying to vacate from the premises of his late father and for bewitching his child. It is also the testimony of PWI that he reported the matter to village leaders of Ikando Village who summoned and tried to reconcile the two whereby DW1 promised not to repeat again. However, PWI testified that after such dispute settlement it did not take longer for the accused person to go to his home, pick his three children 21 and disappear with them until on 21.01,2019 when their bodies began to be found at the crime scenes. When probed as to why he did not report the matter to the police, PW1 responded that he was advised by the village leaders to wait and solve his conflicts with the accused person at the family and village level. On the other hand, the accused has challenged the testimony of PW1 in that aspect, by arguing that the prosecution did not bring any witness to prove that he had conflicts with him. That denial by the accused person suggest that he had no conflicts with PW1. However, looking on the questions asked to PW1 by the learned defence counsel, it appears that PW1 was not asked why he did not summon any village leaders who reconciled him and the accused person. The omission to ask such important question to PW1, indicates that PW1 told the truth to the court that there were existing conflicts between him and the accused person. Also, PW1 could not have predicted that the accused person could kill his children after settlement of the dispute, which is why he did not bother to report to police. It is also a trite law that no particular number of witnesses is required in order to prove.any fact. This is provided under section 143 of the, Cap 6 R.E 2022 (the TEA). 22 In the present case, the testimony of PW1 regarding the existence of conflicts between him and DW1, is in my considered opinion self- explanatory and does not require any corroborative evidence since the said witness was straight forward when adducing his evidence and did not hesitate to tell the court what he felt had contributed to the deaths of his three children. Hence, due to those reasons, I find that said conflicts between PW1 and DW1 who is the accused person herein, contributed to the deaths of the deceased persons. The second event is about discovey of the dead bodies which were later identified to be of the deceased persons. The evidence of PW7 shows that one of the said bodies was discovered at the scene of crime on 21.09.2019 which was just one day after disappearance of PWl's children, while another body of a male child was found at another scene of crime in just six days after the first body was discovered. Also, according to the evidence of PW6, the body of the female deceased child was discovered at another scene of crime which is Agafilo river or 27.01.2019. The evidence of PW1 and PW8 also reveals that those bodies were later identified to be of the deceased persons namely Gasper Nziku and Giliad Nziku whom the accused person is alleged to have picked them from the home of PW1 on 20.01.2019. 23 I had enough time to examine the evidence of DW1 in relation to that piece of evidence by the above prosecution witnesses, and noted that the said defence witness did not dispute the fact that the dead bodies found at the scene of crime by PW6 and PW7 who were the village leaders, were of the deceased persons. The third event is on the prosecution allegations that the accused person is the one who picked the deceased persons from their parent's home in the evening of 20.01.2029. In my view, evidence of PW1 and PW5 is the one which unfolded the secret behind by pointing finger to the accused person. It is their evidence that on the day in question they were playing together with their best friends whom they named as Godliver Nziku, Gasper Nziku and Giliad Nziku, then the accused person Joel Joseph Nziku emerged and started telling them to go back to their home to respond their parents' calls. ’iTiis part of evidence was challenged by the accused. It is also their’testimony that before leaving their friend's home, they heard the accused person telling the deceased persons to accompany him to the valley so that they could show him the planted trees. Again, this part of evidence from PW2 and PW5 was not disputed by the accused person. 2-. Their evidence also depicts that they sang the same song when testifying about the time and date they saw the accused person arriving at the deceased's home and picked them. For instance, when cross examined by the learned defence counsel, PW2 said it was on 20.01.2019 around 1800 hours and responding to the similar questions, PW5 said it was around 1830 hours on 20.01.2019. Despite being witnesses of tender age, PW2 and PW5 were interviewed by the court in order to satisfy itself whether they could give evidence without taking oath or making affirmation provided that each of them promises to tell, the truth and not to tell lies. The outcome of that interview showed that PW2 who is 14 years, possessed all the two qualifications and PW5 who was 11 years old, did not know the nature and meaning of an oath, but he promised to tell the truth and not lies. Hence all of them were allowed to testify before the court. However, due to their knowledge, the way they were adducing their evidence before the court and the way each of them responded to the cross examination questions, I am of the settled view that PW2 and PW5 are credible witnesses who told nothing but the truth in their respective 25 testimonies which clearly show that DW1 is the one who picked the deceased persons on 20.01.2019. On the other hand, DW1 has defended himself by narrating that he was not at the home of PW1 on the day in question, but spent his time on that day by going to the church and returning to his home at Makambako where he stayed with his wife until the following day. However, I have gone through his answers to the cross-examination questions and noted that DW1 failed to give reasons why he did not summon his wife or any person he was together with on that day in order to bear him cut that he did not go to Ikando Village and pick the children of PW1 on 20.09.2019, but was at his home as he has claimed in his defence. Also, it appears to me that the requirements stipulated under section 194 of the Criminal Procedure Act, Cap 20 R.E. 2022 (the CPA) which provides for a guideline on how to rely on the defence of alibi, were not complied by the defence side. This is because neither the accused person, not his learned advocate furnished the court and the prosecution with a notice of their.intention to rely on that kind of defence. 26 Not only that, but also none of them furnished the prosecution with the particulars of that alibi defence before the closure of the prosecution case which tells that both the court and the prosecution side were taken by surprise. Since, it appears that none of the above requirements was complied with, then I am inclined to draw an adverse inference on the purported alibi defence of the accused person and conclude on that part, that the evidence of the accused person failed to disprove the testimonies of PW2 and PW5. That apart, during defence hearing, DW1 contended that the allegations that he is the one responsible for the deaths of the deceased persons were cooked due to the reasons which I need not to reproduce here. The law is very clear that whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. This is provided under section 110 (1) of TEA. Despite the above allegations, the accused person did not tel; the court if he had taken any measures against the said prosecution witnesses including reporting to the government leaders or the nearby court of law. I have also noted that PW1 whom the accused has blamed for facilitating the marriage between PW8 and his concubine, was not cross 27 examined by the defence counsel on that aspect. Therefore, due to the above reasons, I find that the complaint by the accused person against PW1 and PW8, is unfounded. There is also another piece of evidence from the prosecution Republic that the accused person confessed before the police and the Justice of Peace that he is that one who picked and killed the deceased persons. Such evidence was adduced by PW3 and PW8. In his defence the accused person has strongly denied such evidence. The only thing which I can agree with him and his advocate, is that the confession alleged to have been made by him before the police lacks evidential proof because the cautioned statement which PW8 claimed to have been recorded by one of his subordinates, was not tendered in evidence and the police whom PW8 instructed to record that statement, was not summoned to testify before the court. In the circumstance, the court cannot act on such weak evidence regarding confession before a police officer. However, with regard to confession allegedly made by the accused person before ,PW3 who is a Justice of Peace, I am of the settled view that the defence efforts to counter such crucial evidence proved futile. I say so because first, the defence side did not object the prayer of PW3 2 to tender the extra judicial statement as an exhibit, which indicates that the accused acknowledged the fact that he confessed before PW3 to have been the one who killed the deceased persons. Secondly, the counsel for the accused person did not cross examine PW3 whose testimony reveals that before recording the said extra judicial statement, the accused person told him that he was not forced to make statement before him. It is a trite law that failure to cross examine a witness on a material point is tantamount to acceptance of truth; See Hamis Hassan Jumanne vs The Republic, Criminal Appeal No. 397 of 2021 (unreported): Being a judicial officer with an oath, PW3 could not have hesitated to tell the court that the accused person told him that he was forced to make that statement before him, if that was true. Hence, due to the above reasons, it is my finding that the evidence adduced by PW3 is credible and contain nothing, the truth regarding the confession made before him by the accused person. Thirdly, had it been true that the accused person was forced to make that statement before PW3, one would have expected his advocate to object that extra judicial statement before closure of the prosecution case and not during defence hearing as he did as per section 27(3} of TEA; See Shihoze Semi and Another vs The Republic [1992] TLR 330 and Emmanuel Lohay and Another vs The Republic, Criminal Appeal No. 278 of 2010 (unreported). In the present case, neither the accused person, nor his advocate emerged and raised an objection against the prayer of PW3 to tender the said extra judicial statement before the court on the ground that the accused person was forced to make it. It is due to those reasons, that I find the complaint of the accused person has no basis. Fourthly, the confession contained in that document (exhibit Pl), is in my settled view true due to the following reasons: - One, it contains a detailed, elaborate relevant and thoroughly account of the crime in question which is murder of the deceased persons that no other person would have known such details, but the maker who in this case is no one else, but the accused person himself. The above court's finding is fortified in the statement contained in exhibit Pl which reveals that when making his statement before PW3, the accused person uttered the following words: - 3- "Tarehe 20.01.2019 mida ya jioni niiiwakuta watoto waakiwa nyumbani kwao ambako ni kwa baba yangu mdogo aitwaye Danford Nziku. Niiiwabeba kwenye gari langu aina ya fuso (sic) watoto hao ambao niliwachukua mkubwa wa kike niiimuua kwa jiwe na kumtupa kwenye maji sehemu inayoitwa Nundu-Njombe. Na waie wawiii wa kiume niiiwaua kwa jiwe hiio hilo na kuwatupa msituni huko huko Nundu-Njombe. Niiigeuza gari iangu baada ya mauaji na kurudi Makambako, niiikamatwa tarehe 21/1/2019...Maiti za wadogo zangu ziiipatikana baada ya siku saba...Hawa watoto niiiwaua katika mazingira tofauti." [Emphasis supplied] Two, as part of. the prosecution case, the said extra judicial statement is coherent and consistent with testimonies of other prosecution witnesses with regard to the central story and the chronology. of events as described above. Another piece of evidence from the prosecution side is that upon being arrested and interrogated, the accused person not only confessed to have been responsible for the killing ? of the deceased persons, but also the led PW4, PW7 and PW8 to the crime scenes and showed them where he fulfilled his immoral acts of killing the deceased persons. I have squarely examined the proceedings of the court only to find out whether the credibility of the above prosecution witnesses was shaked during cross examination. In my observation, the answer to such important question is in the negative. Despite pointing finger to the accused person that he is the one who led PW4 and other persons including PW7 and PW8 to the crime scenes and showed them the places he had killed the deceased persons, PW4 was not cross examined at all by the defence side on that part, which indicates that his testimony is credible and true. Also, although . PW4 mentioned the accused person as the one who assisted him in drawing a sketch map of the scenes of crime, yet he was not cross examined by the learned defence counsel who also did not object the tendering of the said sketch map (Exhibit P2). Exhibit P2 reveals that a mark with letter "Tl" describe a place where the first deceased person namely Gcdliver Nziku was killed, a mark with letter "T3" shows where the second deceased namely Gasper Nziku was killed and a mark with letter "T2" shows where the third deceased namely Giliad Nziku was killed. 32 Also, a mark with letter "Pl" shows where the accused's vehicle was parked and a mark with letter "P2" shows another place where the said vehicle was parked for the second time. Not only that, but also exhibit P2 contains a mark with letters "VW" which is a point where the body of the first deceased person was thrown, while a mark with letters "KKK", indicates a point where the body of the first deceased was found, whereas the mark with letters "AAA" shows a point where the accused stood while throwing stone and clothes after committing the offence of murder of the deceased persons described by letters Tl, T2 and T3. All that convince me to believe the evidence of PW4, PW7 and PW8 who testified that Joel Joseph Nziku is actually the one who led them to where he had committed an offence of murder of the deceased persons namely Godliver Nziku, Gasper Nziku and Giliad Nziku. Apart from the above evidence, there is another prosecution evidence to show that before killing the deceased persons, the accused person used his motor vehicle with registration number T. 563 AWJ make Mitsubishi Fuso to carry the deceased persons to the crime's scenes. That evidence was adduced by PW2, PW3, PW4, PW5, PW6, PW7 and PW8 whose evidence is corroborated by exhibit P3 which bears the 33 signature of the accused person, which indicates that the said vehicle was in his possession and was used by him to facilitate the carriage of the deceased persons to the crime scenes. That is also justified by exhibit P2 which reveals that from point "Pl" to point "Tl," the distance was 39 metres; from point "Tl" to point "v," it was 13 metres distance and from point "v" to point "k," the distance was 17 metres. Also, exhibit P2 reveals that from point "Pl" to point "P2," the distance was 6000 meters which is equivalent to almost six kilometres long, and from point "P2" to point "T2," the distance was 30 metres. Finally, the contents of exhibit P2 reveals that from point P2 to point T3, the distance was 3? metres. From the above description, it is my considered opinion that had it not been that the accused person used exhibit P4, it could be very difficult for him to move with the deceased persons from one point to another and kill them one after another in different scenes of crime given the fact that the scenes of crime were scattered as described by exhibit P2. On his side, the accused person has challenged the evidence of PW8 who while identifying exhibit P4 before this court, said that the accused person confessed to him that he killed the deceased persons one after 34 another in the cabin of his motor vehicle. In my view, the accused person had a point on that part because what PW8 narrated in his testimony, is quite different to what the rest of the prosecution witnesses narrated in their testimonies. However, it is my considered opinion such variation of evidence cannot make the prosecution case to flop because first, there is another evidence of PW3 which shows pretty well that the accused confessed to him that he just used his lorry to carry the deceased persons to the crime scenes. Secondly, the cautioned statement which PW8 was talking about, is not part of the court proceedings. Lastly, the prosecution evidence reveals that the accused person was the last person to be seen with the deceased persons on 20.01.2019. Tine last person principle was well elaborated in the case of ..Mirajiidd Waziri @Simwana and Another vs Republic, Criminal Appeal No. 14 of 2018 (unreported) in which the Court of Appeal stated that: " This principle has been developed by case law and it simply means that, where there is evidence that an accused was the last person to be seen with the deceased alive then there is a presumption that he is the killer unless he offers a plausible explanation to the contrary"[Emphasis supplied] 35 In the instant case, there is evidence of PW2 and PW5 which •/ clearly. * * show that the accused person was the last person to be seen with the deceased persons alive. The said witnesses have gone far by narrating that the accused person was not a stranger to them since they used to see him at several times before 20.01.2019 when they last saw him with the deceased person alive and exchanged some words with him including greetings. On his side, rhe accused has tried to exonerate himself from the allegations that he was the last person to be seen with the deceased persons alive, but he has failed to give a plausible explanation to the contrary. I am confident to say so because throughout his evidence, the accused person has not denied the fact that he met with PW2 and PW5 at Ikando village in the premises of PW1, nor has he disputed the fact that before leaving with the deceased persons, he exchanged some words with them. Also, his confession before PW3 corroborate the testimonies of PW2 and PW5 who testified that on 20.01.2019 the accused person went to the premises of PW1 with his lorry and picked the deceased persons. 3b It is due to the above reasons, that I am of the settled view that since the accused person has failed to give a plausible explanation to the contrary that he was the last person to be seen with the deceased persons alive, then there is presumption that he is the killer of the said deceased persons. It follows therefore, that due to the foregoing reasons, I am of the conclusive finding that the evidence led by the prosecution Republic against the accused person Joel Joseph Nziku, incriminates him to the extent that there is no other hypothesis than the fact that the accused person caused the deaths of the deceased persons. The second main question is therefore answered in the affirmative. The last question is whether the accused person was actuated by maiice aforethought. Section 200 of the Penal Code declares that malice aforethought shall be deemed to be established by evidence proving either an intention to cause death of or to do grievous harm to any person, or knowledge that the ad: or omission causing death will probably cause, the death of or grievous harm to some person. In order to ascertain if the accused person had a malice aforethought, regard must be had to several factors depending on the circumstances of a particular case. The same were outlined by the Court of Appeal in 37 the case of Enock Kipela v. Republic, Criminal Appeal No. 150 of 1994 where it was stated that: "Usually, an attacker will not declare his intention to cause death or grievous bodily harm. Whether or not he had that intention must be ascertained from various factors, including the following: (1) the type and size of the weapon, if any used in the attack; (2) the amount of force applied in the assault; (3) the part or parts of the body the blow were directed at or inflicted on; (4) the number of blows, although one blow may, depending upon the facts of the particular case, be sufficient for this purpose; (5) the kind of injuries inflicted; (6) ,„N/A ; and (7) the conduct of the attacker before and after the killing" To start with the first factor, the evidence of PW3 shows that the accused confessed before him that he used a stone to kill the deceased persons. This evidence is corroborated by exhibit Pl which was not objected by the defence side. The above piece of evidence is also corroborated by the evidence of PW4, PW7 and PW8. All that proves the fact that the accused person used a stone weapon to attack the deceased persons. 38 The second factor is the amount of force applied in the assault. This cannot detain me to ascertain the amount of force used by the accused person in assaulting the deceased persons. It is clearly indicated in exhibit P5 that the deceased persons sustained serious head injuries. Under normal circumstances, those injuries could not be sustained by the deceased persons if the accused person could not apply a great amount of force. Another factor is the part or parts of the body the blows were directed by the attacker who in this case, is the accused person. Exhibit P5 reveals that the deceased persons sustained serious injuries on their heads. Also, according to the evidence of PW3 which is corroborated by exhibit Pl, it appears that the accused person inflicted a number of blows on the deceased heads by using a stone. The last factor is the conduct of the attacker before and after the killing. The evidence of PW4, PW7 and PW8 shows that before killing the deceased persons, the accused person picked a stone at River Agafilc, then he began using it to hit the deceased persons on their heads until when they died. The evidence of the above prosecution witnesses, also reveals that subsequent thereto, the accused person threw the said stone into river 39 Agafilo; he also threw the body of the deceased namely Godliver Nziku into that river and deserted the other bodies of the deceased persons at the scenes of crime. In my view, al! the above established factors show that the said accused person intended to cause deaths of the deceased persons with malice afore thought and he directly took part in the commission of the murder with which he stands charged. The last issue is therefore answered in the affirmative. Therefore, due to the above stated reasons, it is my finding that the prosecution side has passed the test of proving its case against the accused person beyond any reasonable doubts. In consequence thereof, I find the accused person Joel Joseph Nziku guilty of an offence of Murder contrary to section 196 and 197 of the Penal Code and I convict A.A. Mrfeha Judge 15.11.2023 SENTENCE Since the accused person Joel Joseph Nziku has been convicted of Murder contrary to section 196 and 197 of the Penal Code, I see no 40 other means of considering his mitigations in order to lessen the sentence to be imposed upon him. This is because the law as it stands here and now, provides only one sentence for a convict of murder, as provided under section 26 (1) of the Penal Code. Hence, I hereby sentence the above-named accused person to suffer death by hanging until he dies. Ty/ \ / ^ATMrWr Judge 15.11.2023 ORDER 1. Exhibit P4 which is the motor vehicle with registration Number T 563 AWJ make Mitsubishi Fuso which was unlawfully used by the accused person to carry the deceased persons to the crime scenes, is hereby forfeited under section 351(1) of the CPA, 2. The said exhibit be disposed of by way of sale and the proceeds thereof, be paid into and form part of the Consolidated Fund as per section 351(2) of the CPA. It is so ordered. Judge 15.11.2023 41