CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA fCORAM: MUGASHA. 3.A.. KITUSL 3.A. And ISSA. J.A/1 CRIMINAL APPEAL NO. 685 OF 2020 CHACHA BHOKE NYAITATI................................................................. APPELLANT VERSUS THE REPUBLIC............................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma) (Kahvoza, 3.^ dated the 2nd day of November, 2020 in Criminal Sessions Case No. 41 of 2019 JUDGMENT OF THE COURT 22nd & 25th October, 2024 ISSA, J.A.: The appellant, Chacha Bhoke Nyaitati was arraigned before the High Court (the trial court) sitting at Musoma in Criminal Sessions Case No. 41 of 2019 for the offence of murder contrary to section 196 of the Penal Code, Cap. 16. The appellant was tried and convicted as charged and sentenced to death by hanging. Aggrieved with the conviction, the appellant lodged the instant appeal. The prosecution case against the appellant was that, on 14th July, 2018 at Remagwe Village within Tarime District in Mara Region, the appellant murdered Chacha Keny Makuri (the deceased). The appellant admitted to have killed the deceased, but pleaded that it was not intentional. The prosecution fielded three witnesses to prove the charge: Nyankongo Serya Nyaitati (PW1), Wankuru Sega Nyaitati (PW2) and Baraka Wambura Chacha (PW3). It also tendered two documentary evidence, namely: the post-mortem examination report (exhibit PI) and a sketch map (exhibit P2). The doctor who conducted post-mortem examination established that the cause of death was a big cut wound on the left side of the neck which involved a big blood vessel Qugular vein) leading to acute blood loss and cardiac collapse. On the defence side, the appellant testified as a sole witness and no document was tendered. The prosecution evidence was that on 29th July, 2013 the deceased entered into a contract with the appellant to purchase a piece of land at Ramagwe village for TZS. 1,000,000.00. The sale was concluded before the chairman of Muharango hamlet (PW2) who testified that after the sale was concluded a dispute arose between the deceased and the brother of the appellant who wanted to reclaim the land (the disputed land). The dispute culminated into a litigation which ended at the High Court in favour of the deceased. While the litigation was going on, the appellant repossessed the disputed land, built a house and got married. The appellant was heard uttering threats that whoever goes to that land will face his wrath. On the fateful day of 14th July, 2018, the deceased accompanied by his friend, PW3 and a mason went to the disputed land. PW3 testified that at 18.00 hours the deceased drove his car and took them to the disputed land. They reached there at 18.20 hours and the deceased showed them the boundaries of the land and also showed the mason the place where he was planning to build a house. The appellant appeared and asked the deceased what he was doing. He then ordered his son to go to his house and bring him a machete. The appellant armed with machete pushed the deceased and took a mobile phone and money from the deceased. The deceased pleaded with him to return the phone and keep the money, but the appellant pushed him again and using the machete slashed the deceased's neck. The deceased fell on the ground bleeding. The appellant turned to PW3 who ran for safety of his life. He then turned to the mason who also took to his heels. At that moment, the appellant screamed that he was being attacked and the villagers responded and gathered at that area. PW1 is one of the villagers who responded to the alarm. He testified that, when he reached the scene of crime he found the deceased in his car. The deceased had a cut wound on his neck. The appellant was also there holding two machetes. One person called Antony came there with a motorcycle and took the deceased to the hospital, but he succumbed to death before reaching the hospital. Another person who responded to the alarm was PW2. He met the motorcycle carrying the deceased on the way and when he reached the scene of crime, he found the deceased car and the appellant who was holding a machete. In his defence, the appellant admitted to have killed the deceased, but he testified that it was unintentional as he was defending himself. His story goes thus: on the fateful day he was at home and saw a car approaching. Three people got down and the deceased who had a machete asked him what he was doing at that place. He then slapped him. The appellant ran behind the house, but the deceased threw a machete which fell in front of him. In turn, he took the machete and threw it to the deceased and he shouted for help. The machete cut the deceased. He concluded that he had no intention to kill the deceased. At the conclusion of the trial, as stated earlier, the appellant was convicted and sentenced to death by hanging. The trial court based its conviction on the evidence adduced by the prosecution witnesses that, the appellant was the person who intentionally caused the death of the deceased. Aggrieved, the appellant has approached this Court armed with three grounds in the memorandum of appeal lodged on 28th June, 2021. At the hearing of the appeal, the appellant abandoned the 2nd and 3rd grounds of appeal. The remaining ground goes thus: "That the learned trial judge failed to consider that the accused person (appellant) caused the deceased's death without malice aforethought" When the appeal was called on for hearing, the appellant was represented by Mr. Daud John Mahemba, learned advocate while the respondent Republic had the services of Mr. Isihaka Ibrahim, Ms. Agma Haule, and Ms. Beatrice Mgumba, all learned State Attorneys. Mr. Mahemba, out-rightly, submitted that the appellant does not dispute causing death of the deceased. What he contends is that he killed the deceased in self-defence and he had no malice aforethought. He was attacked by three persons and he defended himself. Turning to the prosecution evidence, he submitted that PW1 and PW2 did not witness the incident, hence, the only eye-witness was PW3 whose evidence is found on page 19 to 20 of the record of appeal. The appellant, on the other hand, testified that the machete was thrown at him. He picked it up and threw it to the deceased who was cut and died. He implored the Court to compare the evidence and finally substitute the conviction and sentence to a lesser offence. Ms. Haule expressed the respondent's stance to oppose the appeal. She submitted that PW3 was a credible witness and there is nothing to show that the appellant was acting in self defence. The deceased and PW3 went to the land in dispute for the purpose of showing the mason where to build the house. It was the appellant who attacked the deceased and his friend. She added that the appellant did not explain how the machete was thrown and how did it cut the deceased from the back of the neck. Even the trial judge on page 69 of the record of appeal observed that it was not shown how the deceased assaulted the appellant to entitle him to exercise the right of self-defence. Ms. Haule concluded that the offence was committed with malice aforethought. The deceased sustained a very big cut wound and the conduct of the appellant was inconsistent with his innocence. He took the property of the deceased and after killing him he ran away and was arrested at Mwanza. Mr. Mahemba had nothing to say on the rejoinder. In the determination of this appeal, the Court will address the issue of malice aforethought and the important question is whether the appellant killed the deceased with malice aforethought as claimed by the prosecution or he killed him in self-defence as claimed by the appellant. Before embarking on that journey, we feel we should take the invitation from Mr. Mahemba to resolve the issue of credibility of PW3 vis- a-vis the testimony of the appellant. We wish to state that this is the first appeal and as a matter of law, the Court is entitled to re-appraise the entire evidence and arrive at its own decision. (See - rule 36 of the Tanzania Court of Appeal Rules, 2009, and The Director of Public Prosecutions v. Stephen Gerald Sipuka, Criminal Appeal No. 373 of 2019 [2021] TZCA 330 (20th July 2021, TANZLII). In the instant case, there are two versions of what took place at the scene of crime. PW3 testified that when the appellant arrived at the scene he confronted the deceased and asked him what he was doing on that land. He then asked his son to get him a machete. Holding the machete, the appellant pushed the deceased and took his money and a mobile phone. While the deceased pleaded for the return of mobile phone the appellant pushed him again and slashed the neck of the deceased. The appellant then shouted that he was being invaded arid at the same time with a machete on his hand started chasing PW3 and the mason who both ran away. The account given by the appellant is that he was at his house when he saw the car stopping at his land. The deceased who was armed with a machete asked him what he was doing on that land. The appellant started running behind his house when the deceased threw the machete which fell in front of the appellant. In response, the appellant picked up the machete and threw it to the deceased. It cut him on the neck and was bleeding. The law as laid down in Goodluck Kyando v. The Republic [2006] T.L.R. 363 is very clear that, every witness is entitled to credence and must be believed and his testimony accepted unless there are good and cogent reasons for not believing him. Further, it is settled law that the prosecution bears the burden to prove its case beyond reasonable doubt. Hence, in determining the credibility of PW3 the Court can assess the coherence and consistency of the testimony of PW3 in comparison with other witnesses including the appellant and arrive at its own finding if need arises. In this case, PW3 narrated clearly the whole incident that happened to him and the deceased on that fateful day. Further, there are other witnesses who corroborated part of his testimony. Assuming the deceased was the one who came with a machete, as alluded to by the appellant, once he threw it to the appellant and the machete fell in front of him, the appellant was no longer in danger, thus once he picked up the machete there was no plausible explanation why he threw it to the deceased. Therefore, the plea of self-defence does not arise. Further, the fact that the deceased according to exhibit PI had a big cut wound on the left side of the neck is inconsistent with a wound that would caused by a throw of a machete. Furthermore, if the appellant had thrown and cut the deceased with the machete and not a boomerang, the law of physics says the machete would have remained beside the deceased. However, PW3, PW1 and PW2 all testified that the appellant was the one who had the machete after slashing the deceased. PW3 said after the appellant slashed the deceased he started chasing him and he ran way. Then, he turned to the mason who also fled. PW1, on the other hand testified that: "I went to the place where the call for help was coming from. I found Chacha Ken Makuri In his car. He had a cut wound on his neck on the left-hand side. I also found Chacha Bhoke Nyaltati. Chacha Bhoke Chaltatl had two machetes." PW2 similarly testified that: "I reached the scene of the crime which was not very far away from a street road. I found the deceased's car and I saw Chacha Bhoke at that area with a machete.... I advised people not to follow him for fear that he might cut another person." Therefore, considering the account of PW3 and the appellant (DW1) the Court agrees with the trial judge that, PW3 was a credible witness and as such, the appellant was not acting in self- defence in killing the deceased. Reverting to the issue of malice aforethought, we will be basically guided by section 200 of the Penal Code which provides: "Malice aforethought shall be deemed to be established by evidence proving any one or more o f the following circumstances - a) an intention to cause death or 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 actually killed or not, although that knowledge is accompanied by indifference whether death or grievous 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 flight or escape from custody o f any person who has committed or attempted to commit an offence". Further, the Court's decision in Enock Kipela v. Republic, (Criminal Appeal No. 150 of 1994) [1999] TZCA 7 (10th June 1999, TANZLII) laid down guidelines for assessing and determining the intention to cause death. It stated: "... usually, an attacker will not declare his intention to cause death or grievous harm. Whether or not he had that intention must be ascertained by various factors including the following: The type and size of the weapon used, the amount of force applied, part or parts of the body or blow or blows are directed at or inflicted on, the number of blows although one blow may be sufficient for this purpose, the kind of injuries inflicted, the attacker's utterances if any made before or after killing, and the conduct o f the attackers before and after killing". [See also Mark s/o Kasimiri v. Republic (Criminal Appeal No. 39 of 2017) [2020] TZCA 170 (24th March 2020, TANZLII) and Charles Bode v. Republic (Criminal Appeal No. 46 of 2016) [2019] TZCA 578 (6th March 2019 TANZLII)]. Applying the law and the principles stated in the above cited cases to the instant case, there is no doubt that the appellant acted with malice aforethought. This is because; firstly, it is clear that when the appellant arrived at the land in dispute he ordered his son to get him a machete. Once, he got hold of the machete he confronted the deceased and slashed his neck. The fact that the appellant was armed with a machete which is a deadly weapon before he confronted the deceased reveals the ill motive and intention of the appellant to kill. Secondly, the appellant knew that he had sold the land in dispute which he later repossessed. He also had issued threat that whoever goes to that land will face his wrath. Indeed, the deceased faced his wrath when he entered that land. Therefore, his earlier utterances and his later action shows that he had intention to kill. Thirdly, the injury inflicted on the deceased which was on the neck; a vital part in human body shows his intention was to kill. Lastly, the conduct of the appellant validated his intention as he threatened to stab all those who accompanied the deceased with a deadly weapon. Besides, having accomplished his mission to kill the appellant fled. PW1 and PW2 who witnessed the aftermath of the incident, knew what happened on that land and heard the utterances of the appellant before the incident. PW3 witnessed the appellant terminating his friend's life (the 12 deceased). In the circumstances, we have no hesitation in confirming the findings of the trial court that, the appellant killed the deceased with malice aforethought. We accordingly sustain the conviction and sentence imposed on the appellant by the trial court and hereby dismiss the appeal in its entirety. DATED at MUSOMA this 24th day of October, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL udgment delivered this 25th day of October, 2024 in the presence of the Appellant in person and represented by Mr. Daud John Mahemba, learned counsel for the Appellant and Ms. Bearice Mgumba, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of the original. J. E. FOVO DEPUTY REGISTRAR COURT OF APPEAL