Nkwabi Joseph Shindayi Judgment 21 January 2025 no4

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE SUB-REGISTRY OF SHINYANGA) SEATED AT SHINYANGA CRIMINAL SESSION NO. 20240215000003983 REPUBLIC VERSUS NKWABI s/o JOSEPH SHINDAYI JUDGMENT Date of Last Order: 22.11.2024 Date of Judgment: 22.01.2025 MWAKAHESYA, J.: Nkwabi s/o Joseph Shindayi (the accused) stands charged with the offence of Murder contrary to sections 196 and 197 of the Penal Code. It is alleged that on the 25th day of October, 2023 at Tinden’hulu village within the District and Region of Shinyanga he murdered one Tungu s/o Sabuni. Subsequent to the information being read over to him, the accused pleaded not guilty to the offence. Throughout the trial the accused was represented by Mr. Geofrey Tuli, learned advocate and the Republic was represented by Mr. Goodluck Saguya and Ms. Upendo Mwakimonga, learned State Attorneys. 1 The prosecution’s case was that, the accused and the deceased were village mates. The deceased had dug out a pond, along a local river, that he used to water his animals. In times of drought he did not permit his fellow villagers to access the water. It was further alleged by the prosecution that, the accused had a garden and needed water for purposes of irrigation and on the fateful day, armed with a machete and carrying plastic cans, he went to fetch water the deceased’s pond. The deceased who was guarding the pond confronted the accused and did not allow him to fetch water, this in turn infuriated the accused and in his rage he violently slashed the deceased with a machete he was holding in several parts of his body, the head inclusive. The deceased's sons, who were in the vicinity grazing cattle, witnessed the incident and while raising an alarm went to the scene and apprehended the accused. Subsequently, the Village Executive Officer (VEO) was called to the scene and found the deceased bleeding from several cut wounds. He took the accused along with his machete to the police and handed him over. Meanwhile, the deceased was taken to a local health facility where he succumbed to his injuries. A post mortem examination was conducted on the deceased’s body and the cause of death was determined to be brain hypoxia caused by the lack of oxygen supply to the brain due to excessive bleeding. 2 At the police station the accused was interviewed and confessed to killing the deceased by attacking him with a machete. In order to prove its case, the prosecution paraded eight (08) witnesses and tendered a total of six (06) exhibits. The accused, subsequent to being found with a case to answer and being addressed in terms of section 293(2) of the Criminal Procedure Act, elected to give evidence on oath and was the sole witness for his defence. Mayunga Pastory (PW2), a son of the deceased, gave evidence that on the fateful day he was grazing in the rice paddies and saw the accused, whom he knew since childhood, carrying a machete and some cans for carrying water. He spotted the accused from a distance of 100 metres. He then saw the accused and the deceased arguing near the deceased’s water pond, the argument was about access to the water. The accused then attacked the deceased with a machete, prompting PW2 and his brother to rush to the scene and apprehend the accused. They also raised an alarm which was responded to. PW2 stated that, at the scene they found the deceased bleeding profusely from the head and hand. The deceased was taken to the hospital by one Masali, where he died. In Cross-examination PW2 denied beating the accused on the fateful day. 3 PF. 21937 A/Insp. Charles Luzambya (PW1), a police officer at Didia police post, gave evidence that on 25.10.2023 at around 1000hrs he was at his office performing his daily duties. Three people arrived onboard a motorbike. One of them had a blood-soaked shirt and the other was carrying a bloodied machete. One of the passengers introduced himself to be the VEO of Kitendan’hulu village. The rider introduced himself as Kajala Nangi. The third person was the accused, he was the one with a blood-soaked shirt. After he was briefed by the VEO he proceeded to arrest the accused and took off his shirt and the machete which was being held by the VEO. PW1 filled a certificate of seizure in relation to the shirt and machete. This was done in the presence of one J. 81 D/C Charles. PW1 tendered the machete (exhibit P1), a t-shirt (exhibit P2), a certificate of seizure for the machete (exhibit P3), and a certificate of seizure for the t-shirt (exhibit P4). In cross examination, PW1 stated that he was not aware if the blood on the t-shirt was that of a human or an animal. Kajala Nangi Kajala (PW3), a motorcycle taxi (bodaboda) operator gave evidence that on 25.10.2023 he was requested to carry passengers. He went to the scene and found the accused’s shirt drenched in blood. He and the VEO took the accused to Didia police station and handed him to the police along with a machete. PW3 4 identified exhibit P1, exhibit P3 and exhibit P4. He also made dock identification of the accused. Masali Tungu Sabuni (PW4), is also the deceased’s son. He recalled that on 25.10.2023 he received a phone call from PW2 informing him of the attack on the deceased. He rushed to the scene and also called and relayed information about the attack to the VEO. When he reached the scene, he found the deceased with wounds to the head, arm and leg. The deceased told him that he was attacked by the accused. The accused had been apprehended by the villagers and he was lying on the side with a machete on his hand. The VEO arrived and urged PW4 to take the deceased to the hospital, PW4 heeded the advice and first went to Didia police station to get a Police Form No. 3 (PF3). He then proceeded to Didia hospital where his father succumbed to his injuries. PW4 was adamant that the accused used to have an argument with the deceased about use of the water pond. Philipo Yasata Shimba (PW5) is the VEO. He gave evidence that on 25.10.2023 at around 0900hrs he received a call from PW4, who was also a hamlet chairperson, PW4 informed him that his (PW4’s) father had been attacked with a machete. He went to the scene and found the accused with his hands tied, he also found the deceased with multiple cuts. He told PW4 to take the victim to the hospital, while he took the accused to the police and handed him over along with his (the 5 accused’s) blood-soaked shirt and a machete. PW5 identified exhibit P1 as the machete handed over to the police. Kapine Thomas Kisumo (PW6), a medical doctor at Didia Dispensary, gave evidence that on 25.10.2023 at around noon he was requested to go to Bugisi Health Centre to perform a post mortem examination. He proceeded to the Health Centre and performed a post mortem examination on the body of one Tungu Sabuni. In his observation, the deceased had five (05) wounds on the back of the head, the biggest wound being 20x4cm wide and the smallest being 5x4cm wide. The deceased also had wounds on the left palm where the index and middle fingers were left hanging, almost severed. Other wounds were on the left upper arm and the left leg. PW6 observed and concluded that the deceased died from brain hypoxia because oxygen to the brain was cut due to excessive bleeding, the bleeding itself was caused by wounds from a sharp object. PW6 proceeded to fill a post mortem report and tendered the same which was admitted as exhibit P5 without objection from the defence. During cross examination and pursuant to section 154 of the Evidence Act, PW6 admitted that in his statement taken by the police he revealed the wounds on the deceased’s head to be 20x6cm in length and the depth to be 6cm, thus he, pursuant to a request by the defence, 6 tendered his statement before the police as exhibit D1 which was used to contradict him. J. 1770 D/SGT Nanai (PW7), a police officer, gave evidence that he was assigned to be the investigator of the case and he in turn assigned H. 8896 Cpl. Stanslaus to interview the accused. H. 8896 Cpl. Stanslaus (PW8), a police officer within Shinyanga District, gave evidence that on 25.10.2023 he and fellow policeman were instructed to go to Didia where there was a murder incident and when they reached Didia he was instructed to interview the accused. After informing him of his rights of having a relative, friend or lawyer present during the interview, of which the accused declined, he took a cautioned statement of the accused. The same was, after a trial within a trial following an objection regarding its admissibility, admitted as exhibit P6. He gave evidence that the accused confessed to killing the deceased. After going through the evidence advanced by the prosecution the court found the accused with a case to answer in terms of section 293(2) of the Criminal Procedure Act. The accused was then addressed his right to give evidence on his own behalf and to call witnesses in his defence. And having elected to give evidence on oath and not calling any witness apart from himself, the accused, in his defence, gave a detailed narration on what transpired on the material day. 7 It was his account that, in the morning of 25.10.2023 he went to water his garden on the banks of Ishegenya river. He rode his bicycle while carrying three water cans and proceeded towards a water pond dug by his late uncle Hamisi. He testified that he was also holding a machete that was intended to be used for chopping fire wood after he finished watering his garden. He went on to give evidence that, when he reached his garden he went to the pond and from a distance he saw four people coming in his direction, one of them was the deceased who was carrying an iron rod and a sling shot, the second person was Willy Tungu, the third being Mayunga Tungu who was wielding a machete and the fourth being Pius Masali who was also carrying a sling shot. When they got near the accused they started hurling stones by using the slingshots. The accused used one of the cans as a shield from the stones hurled at him, and when they reached him they attacked him physically prompting him to start defending himself. He threw away the can he was using as a shield and took out his machete which was fastened on his bicycle. He used the machete to defend himself. According to the accused, the reason for the attack was the assailants claiming that he was collecting water from their pond, an 8 allegation which was false because the pond had been there since the year 2003 and everyone in the village knew it was dug by his late uncle. The accused testified further that, he defended himself and overpowered his assailants who in turn dispersed. However, the deceased tried to hit him with an iron rod but he caught it with his left hand and held on to it, on his right hand was his machete. The deceased then held on to his waist and the other assailants, who had initially fled came back to assist the deceased. The accused then hit the deceased using the flat surface of his machete (bapa) and the deceased fell down. It was then that one of the assailants hurled a stone which hit him on his right check causing him to fall and rendered unconscious. When he gained consciousness, the accused found that he had a second wound on his face, on the right side of his face. He then contradicted himself by stating that, the second wound was on the left side of his face. Either way, it was his testimony that the second wound was bleeding and the blood was falling on his machete. The accused claimed that at that juncture he had become very weak because he had bled a lot. He then saw the deceased at his side, bare chested, and he then saw the VEO of Tinden’hulu village who took him towards a crowd of people. The VEO denied him the opportunity to wash off the blood on his face and his t-shirt was soaked in blood. 9 Subsequently, the VEO, having taken the accused’s machete and one of his water cans, boarded a motorcycle with the accused and took him to Didia police station where he was searched by the police and taken to lock up. Later on, in the evening hours, he was transferred to Shinyanga Central Police Station where, on the following day he was interviewed by a female police officer. The accused in his defence denied slashing the deceased with a machete. He then closed his defence. Section 196 of the Penal Code which creates the offence of Murder reads: “Any person who, with malice aforethought, causes the death of another person by an unlawful act or omission is guilty of murder.” Meanwhile, section 197 which provides for the punishment upon a conviction for the offence of Murder reads: “A person convicted of murder shall be sentenced to death.” And being mindful that it is the prosecution that is alleging the accused to have killed the deceased with malice aforethought, the burden of proving the same lies on them and the same has to be proved beyond reasonable doubt without shifting to the accused (see: section 3(2)(1) of the Evidence Act, also the Court of Appeal case of The DPP 10 v. Bahati John Mahenge and Two Others, Criminal Appeal No. 3 of 2015, and Six Ilanga @ Msaka v. The Republic, Criminal Appeal No. 484 of 2020 (both unreported) the pertinent issues to be determined are as follows: 1. Whether the deceased met an unnatural death; 2. If the answer to the preceding issue is in the affirmative, whether it is the accused who caused the death of the deceased; and 3. If the answer to the preceding issue is in the affirmative, whether the accused caused the death with malice aforethought. It is without a doubt that Tungu Sabuni is dead, and that he died on 25.10.2023. During the preliminary hearing, the accused is on record not disputing that Tungu Sabuni is dead. There is also the evidence of PW4 who took the deceased to the hospital where he passed away. What remains for us to consider is whether the deceased’s death was unnatural. We need not dwell much on this. PW6, a medical doctor who conducted a post mortem examination on the body of the deceased, gave evidence that the cause of death was lack of oxygen to the brain (brain hypoxia) caused by severe bleeding from multiple cut wounds. PW6 went on to tender, unopposed, exhibit P5, a post mortem examination report, which reiterated his findings. Further to that, the 11 deceased’s body bore injuries to the head, left leg, left wrist and the left index and middle finger. Regarding PW6’s evidence, the defence introduced exhibit D1, which is PW6’s statement made at the police subsequent to conducting the post mortem examination. In exhibit D1, PW6 had stated that the wounds to the head were big, approximately 20x6cm while in exhibit P5 and under oath PW6 gave evidence that, the largest wound was 20x4cm (that is width and depth) and the smallest wound was 5x4cm. I think the learned counsel for the defence wants to make a maintain out of mole hill. The discrepancy highlighted (of two centimetres) is minor and insignificant. After all, in his statement before the police PW6 categorically stated that his measurements were approximations, which means that the figures were not exact. The discrepancy does not make PW6 incredible. The cause of death as certified by PW6, coupled with the type of injuries the deceased bore leaves no doubt that his death was unnatural. Thus, the first issue is found in the affirmative, that the deceased’s death was unnatural. Turning to the second issue, PW2 gave a detailed account of what transpired on the fateful day since he was within the vicinity of the attack on the deceased. PW2 knew the accused, in fact he has known him all his life. The attack occurred in the morning hours, according to 12 PW4 and the accused in his defence and PW5 who were called to the scene immediately after the attack. Therefore, the conditions for identification, in fact recognition, were prime. The only anomaly in PW2’s evidence is the alleged recognition of the accused from a distance of 100 metres. I do have my doubts if it is possible for one to see clearly and recognize a person at that distance, and also be able to see that he is carrying a machete. I am of the view that PW2 exaggerated this aspect of his evidence, but being the unsophisticated rice farmer he is, he prone to the occasional excitement on the witness box. The anomaly seems to be out of naivety rather than spite. He also apprehended the accused at the scene thus confirming his presence at the scene. Therefore, considering that every witness is entitled to credence unless there are sound reasons to suggest the contrary (see Court of Appeal decisions of: Goodluck Kyando v. Republic [2006] TLR 369; Nyakuboga Boniface v. The Republic, Criminal Appeal No. 434 of 2016; Athumani Hassani v. The Republic, Criminal Appeal No. 292 of 2017; Christian Ugbechi v. The Republic, Criminal Appeal No. 274 of 2019; and Ambwene Mligo @ Ambwene Luoga v. The Republic, Criminal Appeal No. 441 of 2019 (all four unreported) and there being no cogent reasons to suggest otherwise I find that PW2 is a credible witness. 13 There is also the evidence of PW5 who arrived at the scene and found the accused already apprehended, while the deceased was badly injured. Circumstantially, the apprehension of the accused and the injuries to the deceased are interrelated. Meanwhile, PW4 recounts that, when he arrived at the scene and found the deceased injured, the latter told him that he was hacked by the accused and that he (the deceased) was going to die because of protecting his property. The deceased’s utterances, amount to an oral dying declaration and they fall squarely within the ambit of section 34(a) of the Evidence Act which reads: “34. Statements, written, electronic or oral, of relevant facts made by a person who is dead or unknown, or who cannot be found, or who cannot be summoned owing to his entitlement to diplomatic immunity, privilege or other similar reason, or who can be summoned but refuses voluntarily to appear before the court as a witness, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court to be unreasonable, are themselves admissible in the following cases- (a) when the statement is made by a person as to the cause of his death as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question, whether the person who made them was or was not, at the time when they were made under the expectation of death, and whatever may be the 14 nature of the proceeding in which the cause of his death comes into question; (b) – (h) N/a. (Emphasis added) In Six Ilanga @ Msaka v. The Republic (supra) the Court held that: “It is common ground that, the appellant’s conviction may be grounded on a dying declaration alone…” In this case there is the oral dying declaration and other corroborative evidence as well. Also, while still dwelling on the oral dying declaration, I should point out that the defence opted not to cross examine PW4 on that aspect. It is a cardinal principle in law that, failure to cross examine a witness on an important aspect depicts the acceptance of the truth of that testimony (see Court of Appeal cases of: Christian Ugbechi v. The Republic, Criminal Appeal No. 274 of 2019, Patrick William Magubo v. Lilian Peter Kitali, Civil Appeal No. 41 of 2019 and George Jonas Lesilwa v. The Republic, Criminal Appeal No. 374 of 2020 (all unreported). Therefore, it can safely be taken that the accused accepted the version of events as narrated by PW4 and that indeed PW4 was told to by the deceased that he was going to die subsequent to the attack by the accused. Another piece of evidence is the confession of the accused contained in his cautioned statement (exhibit P6) made before PW8. 15 Albeit the accused repudiated the same, it was admitted in evidence after a trial within a trial was conducted and determined it was admissible. I am aware of the principle that, a court of law should not convict an accused person on a retracted/repudiated confession without corroboration unless it satisfies itself on the dangers of doing so (see: Anna Jamaniste Mboya v. The Republic, Criminal Appeal No. 295/2018, Court of Appeal (unreported). In the accused’s case, exhibit P6 is corroborated by the evidence of PW4 and PW2 who were credible witnesses. In his confession, the accused narrated that, on 25.10.2023 at around 0900hrs he proceeded to a pond, with the aim of fetching water for his garden. At the pond he met the deceased who stopped him from drawing water claiming that the pond was his (the deceased’s), an argument ensued and the accused became enraged. He then pushed the deceased, who fell, and started hitting him on different parts of the body by using a machete he had carried from his home. He hit the deceased on the head, legs and hand. He was then apprehended by people who were grazing cattle nearby. The accused confession tallies squarely with PW2’s evidence, especially regarding the fateful encounter of the accused and the deceased, the verbal argument, the hacking of the deceased and the 16 apprehension of the accused by cattle herders. Thus, the testimony of PW2 corroborate exhibit P6 The accused, in his sworn evidence before the court, distanced himself from assaulting the deceased. As narrated earlier on, he stated that it was actually the deceased and his fellows who instigated the attack on him. However, his testimony leaves a lot to be desired, to state the least, it seems to be scripted. Here is why I find it so: One; it is incomprehensible that the accused whilst fending for his life against multiple attackers, had the presence of mind to selectively use only the flat surface of his machete (the non-lethal part) to defend himself, this is even more farcical considering that he categorically stated that he unfastened his machete from his bicycle in order to use it as a weapon to defend himself; two, coincidentally, when he was allegedly hit on the cheek with a stone, he fell and started bleeding on his machete, thus trying to explain the blood stained machete that was found at the scene; and three, if the deceased was unharmed by him and subsequently the accused fainted, only to gain consciousness and find himself besides the deceased, it why would the deceased found with wounds consistent with the type of weapon used by the accused. I am inclined to draw inference, under section 122 of the Evidence Act that, the accused attacked the deceased with the edge part of his machete. 17 I am aware that, PW2 and PW4 are relatives and were also related to the deceased, but the law does not preclude them from giving evidence simply because it may seem that they have an interest to serve. PW2 and PW4 are competent witnesses in terms of section 127(1) of the Evidence Act and they deserve credence. I find solace in the decision of my brother Kamana, J. in Mashimo Kaswanu and Another v. The Republic, (Criminal Appeal Case 80 of 2022) [2023] TZHC 16573 (3 April 2023) where he cited with approval the Court of Appeal case of Mustapha Ramadhani Kihiyo v. The Republic [2006] TLR 323, the Court held: “The evidence of the related witnesses is credible and there is no rule of practice or law which requires the evidence of relatives to be discredited unless of course there is ground for doing so…” As long as PW2 and PW4 are competent witnesses and there being no ground for discrediting their evidence the same is good as that of any other witness. In light of the foregoing, this court also finds that the second issue is answered in the affirmative, that is, it is the accused who caused the death of the deceased. I now turn to the third and final issue. According to section 200 of the Penal Code, malice aforethought is deemed to be established by evidence proving any one of the following: 18 “(a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not; (b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although that knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; (c) an intent to commit an offence punishable with a penalty which is graver than imprisonment for three years; (d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit an offence.” In Esther Jofrey Lymo v. The Republic, Criminal Appeal No. 123 of 2020 (unreported) the Court held: “Malice aforethought can also be inferred from various factors. In the case of Enock Kipela v. R, Criminal Appeal No. 150 of 1994, the Court said thus: ‘Usually, an attacker will not declare his intention to cause death or grievous harm. Whether or not he had that intention must be ascertained from various factors, including the following: (1) the type and size of 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 or blows were directed at or inflicted on; 19 (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) the attackers utterances, if any, made before, during or after the killing; and (7) the conduct of the attacker before and after the killing…” In the case at hand: One; the accused used a machete which is a dangerous and lethal weapon. Two; in the attack he caused multiple wounds to the back of the deceased’s head, the upper part of his left arm, the left leg and the index and middle finger of the left hand were cut and almost detached from it. This shows that the amount of force used by the accused was excessive and the number of blows were many, including five to the back of the head. The blows were also directed to vulnerable parts of the body. Thus, the first to fifth factors in Enock Kipela v. R (supra) were met and in light of section 200(a) of the Penal Code, the same are sufficient to establish malice aforethought. Thus, the third issue is also answered in the affirmative, that is, indeed the accused killed the deceased with malice aforethought. In light of the available evidence, I am of the firm belief that the prosecution has managed to prove its case to the required standard in 20 law, beyond reasonable doubt, and I therefore find the accused person Nkwabi s/o Joseph Shindayi guilty of the offence of Murder contrary to section 196 and 197 of the Penal Code and hereby convict him accordingly. DATED at SHINYANGA this 22th day of January, 2025 N.L. MWAKAHESYA JUDGE SENTENCE: Upon conviction, the prosecution intimated that they have no records of previous convictions for the convict but insisted on punishment that is commensurate with the offence he has been convicted of. And in mitigation Mr. Geofrey Tuli, learned advocate for the defence echoed the fact that the convict is a first-time offender, and also reminded the court that the killing occurred in the course of a fight and that the deceased was partly to blame. Having heard the aggravating and mitigating factors and having given them due consideration, I need not stress that the punishment for the offence of Murder is a mandatory death sentence. I hereby, in terms 21 of section 197 of the Penal Code, sentence Nkwabi s/o Joseph Shindayi to suffer death by hanging. The convict has the right of appeal in terms of section 323 of the Criminal Procedure Act. N.L. MWAKAHESYA JUDGE 22/01/2025 22