republic vs happness mkolwe 2023 tzhc 23071 1 december 2023

IN THE HIGH COURT OF TANZANIA (IRINGA DISTRICT REGISTRY) SITTING AT NJOMBE CRIMINAL SESSIONS CASE NO. 14 OF 2023 REPUBLIC VERSUS HAPPINESS D/O MKOLWE JUDGMENT 24th November & 1st December,2023 KARAYEMAHA, J The accused, Happiness d/o Mkolwe, stands charged with the offence of murder contrary to sections 196 and 197 of the Penal Code [Cap. 16 R.E. 2022] (hereinafter the Penal Code). The indictment is to the effect that on 6th September, 2022 at Mliwati street, Ihunga Ward within the District and Region of Njombe she murdered one Jackson Kiungo (hereinafter the deceased). She did deny the charge at the commencement of trial. To prove the case against the accused, the prosecution represented by Mr. Tito Ambangile Mwakalinga, learned State Attorney, called eight (8) witnesses. A number of eight (8) exhibits, both 1 | Page documentary and real objects, were also tendered in evidence. The defence being led by learned Counsel Mr. Innocent Kibadu, did call one witnesse, who basically was the accused, to prove her innocence. The defence contention has all along been that the accused has no hand in the death of the deceased. The prosecution case can be conveniently summarized as follows. The deceased was the 2nd child born to Happy Maurus Mwenda (PW1). He was a Primary School student. He was an innocent boy who fell a victim of fight between PW1 and the accused person over a man. On the 6th September, 2022 at about 17:00hrs after returning from school, he informed PW1 that his teacher had ordered him to have his hair cut to avoid being flogged/punished. Following that statement, PW1 gave him Tshs. 1000/= and allowed him to go to Robert Muhema's saloon at 18:45hrs. Indeed, the deceased went to Robert's saloon. On the same day the accused escorted PW7, Yudita Kihaka, to the same saloon to have her hair cut too. The two found the deceased therein. On seeing the deceased, the accused told PW7 that she would kidnap the deceased to punish PW1 because she had love affairs with Rogatus Malekela, her husband. No sooner had the deceased left the saloon than the accused left too leaving behind PW7 and Robert. While walking 2 | Page along the way leading to where there were wood slats, the accused interrogated the deceased about her husband going to their house. On being told that he was going there and sometimes leaving with PW1, the accused was discontented hence seized the deceased, undressed him and strangled him to death, She then hid/buried the body in the wood slats. She took the clothes home and burnt them. Later she dug another pit to bury the deceased. It was the prosecution's case that the deceased's failure to return home up to 19:45hrs triggered PWl's anxiety. Responding to the situation, PW1 decided to follow the deceased to the saloon. On her way she met Robert who informed her that the deceased had left the saloon long time ago. Efforts to trace him to his friends and neighbours bore no fruits. During the course of looking for the deceased, PW1 informed her neighbours who teamed up and started searching for him. They could not see him all the night. Further efforts were made to inquire at PWl's paternal uncle on 7th September, 2022 but still the deceased could not be found. She then informed PW2, Goodlove Maurus Mwenda, her brother and the deceased's nephew who went to Kifanya on 8th September, 2022 to join the searching team. The miraculous 3 | Page disappearance of the deceased and failure to trace him, incited the spreading of the news everywhere. When pressure on looking for the accused mounted, at about ll:00hrs, PW1 met PW7 (Yudita) the accused's friend. That is when the secret was exposed and the accused was mentioned by PW7 to had planned to kidnap the deceased on the impulse to revenge PWl's act of stealing her husband from her and starting love relationship with him. According to the prosecution that day was a busy one. PW1 reported what PW7 told her to the village leadership. Upon being pressed by leaders, PW7 narrated a similar story that triggered the subsequent apprehension of the accused. On being interrogated, the accused denied the allegations but was kept under restraint. The missing of the deceased aroused enthusiasm on the villagers. On the 8th September, 2022, PW2, village leaders and many other villagers detached to different areas searching for the deceased. According to PW2, at about 12:00hrs of the 8th day of September, 2022 they found the deceased dead, buried naked in a pit and covered with wood slats. 4 | Page The incident was immediately reported to police officers who as good shepherds we read about in the Holy Bible did on the day of the Nativity, abandoned their duties and hastened to the scene of crime. They got there at about 13:30hrs with a doctor. These police officers included ASP Michael Richard Mwaipaja (PW3), G.8387 D/CPL Anjelo (PW4), who drew the sketch map of the scene of crime (exhibit PE5) D/CPL Rashid and WP Mwajuma. When they got at Ihanga village, the police officers found the accused already arrested. They were led to the place where the deceased's body was buried. On getting there, they saw a body and exhumed it from the pit dug in the wood slats and PW2 identified the deceased to the police officers and PW5, Robert Kinyamagoha (Doctor). It appears from the evidence of PW5, that the body was taken to PWl's house where he conducted the autopsy and confirmed the deceased's death. The autopsy was carried on 8th September, 2022 by PW5 in the presence of PW2 and PW3 and opined that the cause of death was asphyxia due to manual neck rotation. PW5 tendered the Postmortem Examination Report which was admitted in evidence as exhibit PE6. Thereafter, the deceased's body was handed over to the relatives for burial. 5 | Page It is the prosecution case that when the accused was interrogated by the police officers, she admitted to have killed the deceased, buried him in the pit dug in the wood slats naked. The accused admitted further that after the killing exercise, she undressed him and went to burn his clothes at her house and led the police to that place and showed them the clothes scraps which were in a charcoal form. In addition, the accused told the police officers that the pit in the wood slats was temporally as she had already prepared another pit where she could bury him afterwards. Again, the accused led them to that pit and took them to Scholastica's house where she borrowed a hoe. PW2 tendered two certificates of seizure, to wit, clothes scraps and the hoe, the hoe itself and clothes scraps in evidence and all were marked as exhibits PEI, PE2, PE3 and PE4, respectively. The opinions of PW3 and PW5 led to the arrest of the accused who, admittedly, was alleged to kidnap the deceased and later murdered him. Reliance was also banked on her cautioned statement (exhibit PE7) and extra-judicial statement (exhibit PE8) and oral confession. Finally, her indictment for murder. The defence evidence is not far away from the prosecution evidence. The accused who posed as DW1 agreed to go to Robert's 6 | Page _ saloon with PW7 and found the deceased getting a haircut. She also informed this court that no sooner had the deceased left the saloon than she also went behind him leaving PW7 she escorted in the saloon with Robert. She also admitted to have a fight with PW1 over her husband, namely, Rogatus Malekela, because the former snatched him from her. That notwithstanding, she denied telling PW7 that she would kidnap the deceased albeit agreeing that she had squabbles with PW1. She also denied going with the deceased on the same direction, kidnapping him and killing him. She similarly denied burning the deceased's clothes, digging a pit and borrowing a hoe from Scholastica. DW1 repudiated her cautioned statement and extra-judicia statement. She likewise tried to establish that her cautioned statement was recorded out of time. Although she testified that she was only given papers to sign, she disowned her signatures but accepted one appended on her certification in exhibit PE7. The accused maintained in her evidence that no one saw her kidnapping and murdering the deceased. In the end, the accused unequivocally denied neither having kidnapped nor murdered the deceased. 7 | Page This is a murder case. A cardinal principle is that the burden is on the prosecution to prove beyond reasonable doubt that the accused person murdered deceased. It is not upon her to prove her innocence or even that he was killed by someone else except where the law expressly provides so. It is the law of our land that in cases of this nature the accused can only be convicted of the offence on the basis of the strength of the prosecution case and not on the basis of the weakness of the defence case. Even suspicions, however ingenious or strong can never be a basis of a criminal conviction or a substitute for proof beyond reasonable doubt. Undisputedly, in this case the death of the deceased was not a natural one. It was a violent one. The cause of death is not disputed. It was caused by asphyxia due to manual neck rotation. As such the evidence relied upon by the prosecution is partly circumstantial and partly confessional. On this basis and on the totality of the evidence before me, I am persuaded to hold that Jackson was murdered. The vexing question now is who then killed Jackson? The evidence on record does not give me many choices. It points unerringly to only one individual, the accused person. As hinted above, although there is no direct evidence going to incriminate her with the alleged murder, 8 | Page without doubt the Republic is urging me to hold that it was the accused person who killed the deceased with malice aforethought. It has relied on circumstantial evidence. Our jurisdiction is replete with authorities which dictate that conviction must only be found on circumstantial evidence, if such evidence irresistibly leads to the conclusion that it is the accused, and no one else, who committed the crime. See Simon Musoke v. Republic, (1958) EA 715. In Jimmy Runangaza v. Republic, Criminal Appeal No. 159 'B' of 2017 quoting from Sarkar on Evidence, 15th Ed 2003 Report Vol. 1 page 63 the Court of Appeal of Tanzania also emphasized that on cases which rely on circumstantial evidence, such evidence must satisfy the following three tests which are: 1) The circumstances from which an inference of guilty is sought to be drawn, must be cogently and firmly established; 2) Those circumstances should be of a definite tendency unerringly pointing towards the guilty of the accused; and 3) The circumstances taken cumulatively should form a chain so compete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and no one else. 9 | Page The law, demands of the prosecution to prove beyond reasonable doubts each and every alleged fact. The prosecution also bears the undeletable burden of proving to that standard that each of the alleged set of facts even if proved either singly or cumulatively or conjunctively leads or lead to no reasonable hypothesis other than the guilt of the accused. It is also a position of law that no conviction can be sustained without corroboration if it is based on evidence that requires corroboration. In case of a matter of practice, a conviction would not necessarily be illegal or be quashed if it stands on uncorroborated evidence, see Jimmy Runangaza (supra) Likewise, it is worthy to note that the purpose of corroboration is not to give validity or credence to evidence which is insufficient or suspect or incredible but it is intended to confirm or support the other evidence which is sufficient, satisfactory and credible. This position was accentuated in the case of Azizi Abdallah v. Republic, [1991] TLR 71. Further to that, it is a settled law that the evidence which itself requires corroboration cannot be used to corroborate another evidence. See Swelu Maramoja v. Republic, Criminal Appeal No. 43 of 1991 (unreported). 10 | P a g e Now to the instant case, a scrupulous review of the prosecution's evidence is in two branches. One, the evidence of PW7 a friend of the accused person, who testified that the latter told her that she intended to kidnap the deceased to avenge PWl's conduct of snatching her husband. Two, the evidence that the accused led the police officers to where the scraps of the deceased's clothes were found and a hoe used to dig a pit to bury the deceased. With regard to the first branch, I take into account the evidence of PW7 who indisputably is the accused's friend. Conspicuously, the accused trusted her and disclosed her intention of kidnapping PWl's child. The reason is clear. In view of PW7, it was because PW1 completely snatched her husband one Rogatus Malekela. Even after PW7 had tried to advise her not to commit that unacceptable act the accused appeared not to buy that piece of advice. According to PW7, the accused was the last person who followed the deceased after he left the saloon. Later PW1 told her that the deceased was missing. She related the words uttered by the accused while in the saloon and the missing of the deceased who was found dead later and suspected her. She then relayed the secret to PW1 and later to the village leaders. 111 P a g e The question is whether there is a basis for this court to disbelieve PW7. My gate pass to answer this question is obtained in decision of Goodluck Kyando v Republic, 2002 TLR that every witness is entitled to credence and must be believed and his testimony accepted unless there are good reasons for not believing the witness. In the instant case, apart from denying the killing of the deceased, the accused did not seriously deny the testimony of PW7 that she had told her intention to kidnap the deceased to avenge PWl's conduct of snatching her husband. Equally, she did not deny the fact that they were friends and shared some secrets. She also did not deny seeing the deceased in the saloon and thereafter leaving soon after he had left the saloon. As to what happened next is explained in exhibit PE7. In addition, there was no serious cross-examination on these facts. Undoubtedly, exhibit PE7 added value to PW7's evidence. In the light of all these, I have no strong reasons for not believing PW7. As to the second branch of circumstantial evidence I consider the fact that upon interrogation by PW3 she admitted to murder the deceased by strangling him to death. She told him that after confirming that the deceased was dead, she undressed him and buried him temporarily in the pit she dug in the wood slats. It was her who led the 12 | P a g e police officers including PW2 and showed the area she burnt the deceased's clothes and later to the permanent pit. The scraps of burnt clothes and the hoe would not be seized if there was no confession by the accused. It was also not easy for the police officers to discover the pit for burying the deceased permanently if not being told and led by the accused person. What PW2, PW3, PW5 and PW7 told the court corresponds to accused's confession statement (exhibit PE7) tendered in evidence by PW6, WP 8226 D/CPL Sabina. In it, the accused person gave a detailed episode explaining how she followed the deceased, interrogated him on days and times her husband spent with PW1 and how the answered enraged her. PW6 who recorded this confessional statement quoted the accused giving a detailed plan and execution of the murder and the reason for murder. Part of this statement resembles in substance to the evidence of PW7. I have already indicated that the accused person sought to repudiate her cautioned statement, challenge it that it was recorded out of required time and disown signatures in her defence while it was admitted in evidence without being repudiated or challenged during the trial. The Court of Appeal of Tanzania was confronted with an analogous 13 | P a g e situation in Emmanuel Lohay and another v Republic, Criminal Appeal No. 278 of 2010 (unreported) and held as thus: "It is a trite law that if an accused person intends to object to the admissibility of a statement/confession he must do so before it is admitted and during cross-examination or during defence." This position was accepted in the case of Sospiter Nyanza and another v Republic, Criminal Appeal No. 289 of 2018 and in the current decision in Mashaka Juma @ Ntatula v Republic, Criminal Appeal No. 140 of 2022 CAT-Shinyanga. In the present case the accused missed a boat by trying to disown the statement at the defence stage. Let me now turn to the extra-judicial statement (exhibit PE8). In the course of testifying, PW8, Mariamonica Mnyanzi, prayed to tender it Mr. Kibadu objected to its admissibility on the ground that there was no letter from the police officer in charge as required by rule 6 of the Chief Justice's Guide for Justices of Peace (hereinafter the CJ's Guide). This rule provides thus: "6. Special powers of Justices assigned to District Court­ houses. (A) A Justice assigned to a District Court-houses may take and record the confessions of persons in the custody of police. A prisoner wishing to make a statement may be brought to the office of a justice 14 | P a g e under police escort and usually bearing a letter from the Officer-in-Charge, PoHcef_to the effect that the accused, who is under arrest in connection with an alleged offence, wishes to make a voluntary statement to a magistrate/Justice''\^\k\hs\s added] The learned counsel submitted guided by the decisions in Japhet Thadei Msigwa v. Republic, Criminal Appeal No. 367 of 2008 which was cited in the case of Chamuriho Kilenge @ Chamuriho Julius v. Republic, Criminal Appeal No. 597 of 2017 (both unreported) at page 16 that the CJ's guide must be complied with to the letter. On his part Mr. Mwakalinga saw no serious contravention of the guide because the word used in the guide is "usually". In his construction of this word, he scans no mandatory requirement in it. In addition, Mr. Mwakalinga argued that since the JoP complied with all aspects as emphasized in the case of Japhet Thadei Msigwa (supra) and that the accused understood the effects of her confession and that the confession was voluntary, then the extra-judicial statement passed a test and should be admitted. After hearing from both parties, I promised to consider the objection on point of law in the course of composing the judgment. It is my turn to consider the merit or otherwise of it. 15 | P a g e Undisputedly, the confession made before PW8 by the accused was voluntary. Exhibit PE8 satisfied all the requirements set forth in the case of Japhet Thadei Msigwa (supra). In that case the CAT guided as thus: "The Justice of the Peace ought to observe, inter alia the foilowing: (i) The time and date of his arrest (ii) The place he was arrested (Hi) The place he slept before the date he was brought to him (iv) Whether any person by threat or promise or violence he has persuaded him to give the statement. (v) Whether he really wishes to make the statement on his own free will. (vi) That if he makes a statement, the same may be used as evidence against him" All these aspects were observed. I agree with Mr. Mwakalinga that it was not harmful for the JoP not receiving a letter In terms of rule 6 of the CTs Guide given the fact that the accused did not deny to have confessed before PW8 and have her statement recorded. In addition, she voluntarily made her statement. Therefore, failure to observe rule 6 does not, in my considered opinion defeat the substance of exhibit PE8 which gives details of what actually happened. I say so bearing in mind the word "usually"which connotes a usual way of conducting things or doing according to the previous experience or pattern or course. Thus, 16 | P a g e in my understanding there is no obligatory in the word used. That being the case I hereby overrule the raised objection. I have closely examined exhibits PE7 and PE8 and noted that both have a common feature. Both describe the circumstances and the manner in which the deceased met his death and where he was buried. They are so detailed that the events described therein could have only been given by a person with knowledge of how the deceased met his death and the reasons thereof. In particular exhibit PE7 is a good illustration of the above point thus: "Nakumbuka Hikuwa siku ya Jumatatu tarehe 06/09/2022 majira ya saa 19:40 hrs nikiwa na JUDITA D/O ELEUTELI KIHAKA tukiwa maeneo MLIWATI saluni kwa GEORGES/O? (SIMFAHAMU) nHienda kumsindikiza JUDITA D/O ELEUTELI KIHAKA kunyoa nywete, tulivyofika saluni tuiikuta JACKSON S/O KIUNGO akiwa anamaiiziwa kunyotewa na GEORGE S/O? (SIMFAHAMU) tuiiingia saluni na kukaa Hi kusubiri amalize kunyotewa, kabla hajamaliziwa kunyotewa (GEORGE) JACKSON S/O KIUNGO nilitoka nje nikawa namsubiria JACKSON S/O KIUNGO, muda si mrefu JACKSON S/O KIUNGO alitoka nje baada ya kumaliza kunyotewa na niiimuita na kuanza kumuuiiza kuwa mume wangu ROGATUS S/O REGNAD MALEKELA huwa anaendaga nyumbani kwa JACKSON S/O KIUNGO atinijibu ndiyo huwa anakuja, nikamuuliza mara ya mwisho Hikuwa Uni JACKSON S/O KIUNGO alinijibu jana ambayo Hikuwa siku ya JumapiH ambayo Hikuwa 05/09/2023, JACKSON S/O KIUNGO 17 | P a g e aliendelea kusema kuwa ROGATUS S/O REGNAD MALEKELA alifika na kumchukua mama yake HAPPYNESS S/O MARTIN MWENDA na kuondoka naye, nilimtanguliza mbele yangu tukiwa tunaeiekea njia ya kushuka kuelekea kisimani ambapo huwa wanapasulia mbao, niiifika maeneo haya wanapopasulia mbao ambapo ni maeneo ya kisimani niiimvua nguo zake aiikuwa amevaa T-shirt ya rangi ya damu ya mzee, sweta (a traki blue iiiyopauka yenye mistari na rangi nyeupe mikononi na suiuari nyeusi na aiivaa bukta ya rangi ya njano na aiikuwa amevaa yeboyebo za rangi ya blue, niHmbana shingo yake na mguu wangu wa ku/ia na kuchukua nguo zake zote na kumziba pua na mdomo kwa lengo kuwa kumkosesha pumzi Hi afe, niliendelea kumbana (pumzi) na mguu wangu wa kulia huku nikimbana pumzi kwa kumziba na nguo zake had! niiipoona ahemi/hapumui ndipo nilipojua amefariki, baada ya kuona tayari ameshafariki nilichukua mti na kuchimba juu ya mapumba ya kupasulia mbao na kumchukua kumfukia kwenye hilo shimo nililochimba shimo fenyewe ha/ikuwa refu, nilimlaza kifudifudi na kumfukia. NHiondoka na kurudi nyumbani kwangu nikiwa na nguo za JACKSON S/O KIUNGO, muda huo Hikuwa majira ya 21:14hrs, niiipikia watoto wangu chakuia na nilienda kwa rafiki yangu JUDITA D/0 ELEUTEU kupiga stori n/Hkaa had! saa 23:00hrs nikarudi nyumbani na kulala. Asubuhi tarehe 07/09/2022 nilirudi hadi mahali niiipomfukia JACKSON S/O KIUNGO na niiiona pako sawa jinsi nilivyokuwa nimepafukia usiku wa tarehe 06/09/2022, nilirudi kwa JUDITA D/O ELEUTEU nilikaa kwa muda wa masaa mawiii nikarudi nyumbani, niiipikia watoto nikaondoka kwenda kwa mama yangu mkubwa SHOLASTIKA D/O MUHOGOFELA nilienda nikamuomba jembe na akanipatia nikaondoka na kwenda 18 | P a g e maeneo niliyomfukia JACKSON S/O KIUNGO na kuchimba shimo na kurudisha jembe kwa SHOLASTTKA D/0 MUHOGOFELA, niiienda kuchimba shimo hiio lengo ikifika jioni/usiku nikamfukue kwenye shimo niiiiomfukia mwanzo na kumfukia kwenye shimo niiiiochimba na jembe." Considering all what is contained in exhibit PE7 complimented by exhibit PE8, this court is of the considered view that the accused was the best witness. In fact, I respectfully borrow the words of wisdom by Rutakangwa JA (as he then was) in Mohamed Haruna Mtupeni & another v R, Criminal Appeal 259 of 2007 (Unreported (CAT - Tabora) at page 7 that: "... the very best witness in any criminal trial is an accused person who freely confesses his guilt." As a matter of fact, having this piece of evidence and the principle referred to above, I trust that PW2, PW3 and PW4 are credible witnesses too. In their totality, testimony of PW1, PW2, PW3, PW4 and PW7, together with exhibits PEI, PE2, PE3, PE4, PE6, PE7, and PE8 carry some significance to the matter, chiefly because they touch on the fact that the accused intended to kidnap the deceased, was the one who followed him after intimating her intention at Robert's saloon leaving PW7 therein, she led the police officers and some villagers to where she burnt the deceased's clothes, where she temporarily buried the 19 | P a g e deceased, to the other pit she dug using exhibit PE4 (a hoe), scene of the crime and confessions made by the accused person. She also signed on exhibits PEI and PE2 authenticating that scraps of clothes were seized from her and the hoe she used was the same seized from Scholastica, her relative. These are definitely not doubtful pieces of evidence and very crediting ones hence leading to a conclusion that the pointed-out allegations have been proved beyond reasonable doubt. The above actual facts taken together constitute a cogent and compelling circumstantial evidence incapable of other rational hypothesis than that of murder. They persistently point a finger on the accused person to have committed the murder. I am mindful of the principle that the circumstantial evidence must be proved beyond reasonable doubt. I am strengthened on this position by the decision in Ali Bakari and Pili Bakari v Republic, [1991] TLR 10 in which it was held thus: "Where the evidence against the accused is wholly circumstantial the facts from which an inference adverse to the accused is sought to be drawn must be proved beyond reasonable doubt and must be clearly connected with the facts from which the inference is to be informed. " In this case there is strong evidence indicating that it was the accused person who killed the deceased and buried him in the pit dug in 20 | P a g e ^5^^ the wood slats. As already pointed out, she orally confessed before the police officers and village leaders and led them to the place she buried the deceased, where she burnt clothes which were in a charcoal form and led them to the pit, she dug to permanently bury the deceased and showed the hoe she used. Even if I am forced to pursue this issue to its logical conclusion, still I would further hold that cogent evidence was brought by the prosecution to prove beyond reasonable doubt the participation of the accused in the killing of the deceased. All in all, I find the circumstantial evidence form an inference of guilty sought to be drawn cogently and firmly established and the evidence adduced by the prosecution unerringly points a finger at the accused to be a murderer of the deceased. Moreso, taking the circumstances in this case form a complete chain such that this court cannot escape from a definite conclusion that with all human possibility it was the accused person who murdered the deceased. Apart from the discussion above, glancing through the prosecution evidence testimony, exhibit PE6, PE7 and PE8 oral confession it is quite clear that there exists some divergence and contradictions. These mainly relate to where they landed when they got in Ihanga village, where the accused person was when the deceased's body was exhumed from a pit 21 | P a g e dug in the wood slats and where the body was found. While in exhibit PE6 as well as in PW5's evidence it was stated that the body was found in the farm where there were wood slats, PW2, PW3 and PW4 told this court that the deceased's body was exhumed from pit dug in the wood slats. Similar story comes from exhibits PE7 and PE8. Needless to say, these are some important discrepancies in the evidence. The question however, is what impact do they have on the prosecution's case? The settled position is that discrepancies and inconsistencies in the testimony have an adverse impact if the same are fundamental. Discrepancies which are of remote effect are of no consequence and ought to be ignored. In Luziro s/o Sichone v. Republic, Criminal Appeal No. 231 of 2010 (unreported), the Court of Appeal held: " 144? shall remain alive to the fact that not every discrepancy or inconsistency in witness's evidence is fatal to the case, minor discrepancies on detail or due to lapses of memory on account of passages of time should always be disregarded. It is only fundamental discrepancies going to discredit the witness which count "[Emphasis supplied] In Mukami w/o Wankyo v Republic [1990] TLR, the Court of Appeal took the similar view that contradictions which do not affect the 22 | P a g e central story, are considered to be immaterial. See also: Bikolimana s/o Odasi @ Bimelifasi v. Republic, Criminal No. 269 of 2012 and Chrizant John v. Republic, Criminal Appeal No. 313 of 2015 (both unreported). My unfleeting assessment of the discrepancies and contradictions pointed out, brings me to a conclusion that the same were in the category of normal discrepancies which would neither corrode the accused persons voluntary confessions nor would they affect the central story given by crucial prosecution witnesses. The central story in this case is the accused person's involvement in planning and executing the murder incident that claimed the life of the deceased and the reasons why she did so. I am increasingly of the considered view that such a story has not been neutralized by the highlighted variances. Their role in the commission of the offence has been laid bare and the accused person did not controvert any of the contents. I am persuaded by my own conviction that the totality of the evidence adduced during this trial, leaves no shred of a reasonable doubt that it is the accused, and none else, who committed the offence with which she stands charged with. I am settled, in my mind that the accused persons' own account of facts, points to an irresistible 23 | P a g e conclusion that malice aforethought, as an essential ingredient of murder, has been proved in a manner that sufficiently satisfies the requirements of section 200 of the Penal Code. Consequently, I convict her of murder contrary to section 196 of the Penal Code. J. M. Karayemaha JUDGE 1/12/2023 In view of finding guilty and eventual conviction, I hereby sentence the accused person, namely, Happiness Mkolwe to suffer death by hanging in terms of section 197 of the Penal Code. It is so ordered. J. M. Karayemaha JUDGE 1/12/2023