20150930 TZHC Mwanza

' . '. \. ', ,' . i- /,' .· i . ,, .,. , ..., ~ { ,..,, -_~;~- ..·· .... ..,.. ·.. '"' ,f,:: . ,; IN THE·t-tIGH:COURT ··.:·. ,.' _: OF. .:_. THE :..UN~;,·t~REPOBLIC --.-::.~--~-1/\~,//:·· -.. OPT;N-1ANIA ~">tr'-\!·,~ . · . MWANZ~ REGIST-RY .., ·A ', .'•;., 1 I ·:·•, ·., • . • r ; :~., -. .-_ ,/1_ . HIGH C()URT CRIMINAL AP.P·EAL NO. ,111'OF 2014 (Appeal arising from the.decision :ot,_the Magistrates c;urt of Mar~('at - Musoma in Crimi[7a/Case"'No~124_.af2013) - · .,·.·.,.,.; ' NYAMHANGA S/O MAGESA ..................... ~~ .. ~-........ APPELLANT ' -r

VERSUS THE REPUBLIC ................................................. RESPONDENT

JUDGEMENT 30 th Sept 2015 Ebrahim,J. ' The appellant, Nyamhanga-. S.O fv!agesa, was convicted by the Resident Magistrate Court of Mara for arson ~ontrary to section 319 (a) of the Penal Code, CAP. 16, R.E.

2002. He was sentenced to a mandatory sentence of life imprisonment. Aggrieved by both conviction and sentence the appellant has appealed to this court. Briefly, the facts of the case are that, it was alleged that PWl, mother of the appellant on 06/12/2010 at 0300hrs wasasleep when she . heard an alarm. She woke up opened the door and found out that the - alarm was raised by his grandson PW2 and then she saw the appellant setting fire to her three (3) houses. When she wanted to raise an alarm the 1 cj voice and conducive circumstances; demeanor.:: _a~d credibility :·of ·the prosecution witness and apparatus alleged to have been used, LEONARD .. ZEDEKIA MARATU V.REP (C.A) CRIMINAL APPEAL _NO.86 OF 2005 · MWANZA REGISTRY (Un-reported); shifting of burden of proof to the appellant without sufficient _proof by exhibits/cautioned statement;JONAS NKIZE V. REP (1992) T.L.R 216; violation of section 231 of the CPA that occasioned miscarriage of justice to the appellant; failure to draw and·· adverse inference upon the prosecution who failed to include JUMA MWITA AZIZI ABDALLAH V. REP (1991) T.l.R 72;uncorroborated evidence of tv\.,lt:t . Qf-- j the complainant; and Jthe court relied on the evidence PW2 witho~t sufficient independent evidence; ABRAHMAN WILSON SAIGURAN AND - OTHERS V.REP (1981) T.L.P 265 At the hearing the appellant fended for himself and Republic was advocated by Mr.

Emmanuel Luvinga, learned State Attorney. At the hearing of the appeal, as it is the trend, the appellant adopted his memorandum of appeal and prayed for the respondent to begin while c reserving his right to reply. Mr. Luvinga, vigourously resisted the appeal and supported the conviction and sentence imposed to the appellant. He opted to reply to the grounds brought by the appellant in seriatim,and btill-do U1€ tmn:ie- 2 r ~, On the first ground of appeal, Mr. Luvinga ,replied all of the items (a) to (d) in their totality. ·He contended that the ccmtention of the appellant that the identification was not water tig.ht in line with Waziri Amani's case has no basis in the circumstances of this case. He expounded that;.· the circumstance of this case shows vividly that PW2, who is the nephew of the appellant and they were living together, witnessed that appellant committing the offence. At pg.7 of the proceedings, PW2 said that the incident occurred at 03:00 hrs, the appellant arrived at the locus quo, knocked and awakened PW2 by name and asked him to go and stand beside the door. After waking up, PW2 saw the appellant taking a match- box and an oil lamp(kibatari) and lighte'ri1~g it. He explained further that, the appellant took bicycle tyre and lightened it and went to torch the house of PWl who is his mother. The# appellant then torched his own house which was on the same

ground/plot and also torched the 3rd house on the same plot. By seeing that, PW2 raised an alarm that awakened PWl. According to the evidence of PW2, he identified the appellant as the one who lightened the fire. Mr. Luvinga explained further on the evidence of PWl that she was awakened by an alarm raised by PW2. When she got out, she saw the appellant torching the house and that the appellant is her son. When she tried to raise an alarm, the appellant ordered her to keep quite. 0-Vl He reiterated the evidence of PW3,sister of the appellant that elt her testimony ~g.8 of the proceeding-;he said that she saw the appellant torching the 3rd house. Therefore from the testimonies of those 3 witnesses, the identification was water-tight as the appellant was well 3 known to the witnesses. So there w~s no an·y p9ssibility of mistaken identity created·by fire. ~ (P"Drri f..r-<c-- Mr. Luvinga streSsed on the point that there was also lightfs stated by PWl that made him identify the appellant. Also by considering evipence of PW2 that the appellant woke him up and told him to go out and stand beside the dqor. The incident took a long time which enabled PW2, being his uncle to identify him (appellant). Hence the complaint by the appellant that he was not identified has no basis and should be dismissed. As for the second ground of appeal that the Magistrate erred in law by believing the

evidence of the witnesses of prosecution whose demeanor and credibility was questionable; Mr. Luvinga stated that the reason is baseless and it is the opinion of the appellant. The duty of ascertaining the demeanor and credibility is the duty of the court that tried the case and saw the witnesses. If the trial court believed them, then there is no substantive reason to bring it now. Therefore it is also baseless. Mr. Luvinga also prayed for the court to consider the evidence of PW2 who stated clearly what type of apparatus was used to kindle the fire. Replying on the 3rd ground of appeal that the republic did not call one Juma Mwita as a witness who informed PW3 concerning the incident; Mr. Luvinga countered that PW3 did not say that she was informed by Juma Mwita, she only said that she ran to Juma Mwita after seeing the appellant holding a machete and a sticUurther according to S.143 of the Evidence Act, Cap 6, there is no required number by prosecution to call witnesses. The issue required to be proven at the trial court was who torched the 4 - house and ·riotwho relayed information as argued by the appellant. --- Appellant also complained that neither of thealarmist were called to testify so as to eliminate doubt that the case against him is fabricated. That is also not true as there is evidence of PW4 and PWS ih court Mr. Luvinga submitted in reply on the 4th ground of

appeal that the appellant complained that the trial court erred in taking the evidence of PW2 after conducting VOIRE DIRE TEST without corroboration. However, in the case of Kimbute Otiniel V RCriminal Appeal No. ~ 300/2011 (CR) cited in the case of Benard Balele V R, Criminal Appeal No.319/2013, it was stated in that case that, different with other decision earlier that evidence of a child that needed corroboration, the remedy was to expunge from the recordj in this case such evidence can stand on its own without corroboration. Hence that ground lacks merit as well. As for the 5th ground of appeal that the trial court violate the right of appellant as stipulated in S.231 of CPA CAP 20; Mr. Luvinga averred that S.231 deals with the right of accused to defend himself after being found with the case to answer. That is not true as at pg.11 of the court proceedings, the appellant was availed of that right after being found that he has a case to answer and he did enter his defense. On the same page there is reply by the appellant saying that he will defend himself under oath and shall not call any witness. Therefore that ground is also baseless. On the last ground that the trial court shift[ the burden of proof to the appellant and that he was convicted by weakness of his defense contrary to S.110 of T.E.A CAP 6, Mr. Luvinga agreed that the burden of proof is on 5 a 1 prosecution

slde and the same was fulfilled without reasonable doubt. At pg 7 of the· judgment of t~e court; court agreed with the prosecution case to have proved the offence beyond reasonable doubt. Therefore the 6th ground also lack1merit and should not be considered. The appellant was convicted for the strength of evidence and not weakness of his defense. --d-.~ In rejoinder, the appellant stated that he does not agree with ~- State Attorney's submission and that his grounds of appeal are correct and concrete and pray this court to consider and agree with them. He stated that the case is fabricated on him. He is a family member and it is not disputed that 3 housesFt. 1st house is his mother's house, 2nd house is his and 3rd house was the kitchen. The appellant contended that the contentions by Pt!j/ that she woke up and saw him torching the 1st , 2nd and 3rd house and LPW2 that he woke him up and told him to stand beside the door and he lightened the oil lamp using a match-box and also lightened a tyre then torched the 2nd and 3rd house are not true. If PWl woke up by hearing alar~ J(jj2 who saw him torching house No. 2 and 3, he questioned then tJirat how did PWl saw him torching the house No.1, 2 and house No.3. The appellant continued that, PWl said that the he stopped her from raising an alarm and she was awakened by the alarm of PW2, how could he stop her (PWl) from raising an

alarm while he did not stop PW2 who was just a child? - He argued further that PW3 saidthat she ran to Juma Mwita and was called by Juma Mwita. That is not true. How did Peter Chacha knew about 6 ~ 0 (fire? Therefo re, PW3 and Peter Chacha are the ones who torched the \ouse. . As for ground 4 of his appeal, there is no evidence to corroborate the evidence of PW2 adduced in court; and for the 5th ground,· the trial court interfered when he was giving his evidence in court. Lastly, he did not agree with the sketch map of the locus-quo as it showed on map while the houses concerned were 3 houses. He thus prayed for the court to consider and agree with his grounds of appeal as prosecution did not prove their case beyond reasonable doubt. The law is clear on the identification that the proper identification of 4--· an accused person especially at night time is crucial element to ensure that the possibilities of mistaken identity are eliminated. Therefore the witness must mention all aids like the source of light and its intensity. See the case of Chacha Mwita and 2 others V Republic, Criminal Appeal No 302 of 2013 and Said Chally Scania V R, Criminal Appeal No 107 of 2009 ( both unreported). However, each case depends on its circumstances. In our instant case, the appellant is a family member, an uncle of PW2, who awakened PW2 and told him to stay beside the door. PW2 saw the

appellant taking a match box and an oil lamp and light the bicycle tyre and while its lighting took it to the house of PWl and lightened it. The statement of PW2 is corroborated by PWl, mother of the appellant who after waking up saw the appellant with the bicycle tyre on fire and appellant burning houses. Then there is an evidence of PW3 who is the sister of the appellant who came into the scene and found other houses on fire and witnessed the appellant burning the 7 third house'. According to the· evidend:~ ··on record, the fire blaze was . huge to create enough light for people to see each other. With such evidence, I hasten to · agree with Mr. Luvinga that, as far as the circumstances of this case is concerned, there was no possibility of mistaken identity considering the fact that the appellant was identified by his own mother, nephew and a sister. In his evidence, the appellant states that he awoke to the blaze of fire and raised an alarm unsuccessfully. I find that the defence of the appellant does not add up as if PWl could hear the alarm raised by PW2, an 11 years boy, how could the appellant be unsuccessful in raising the alarm and how unsuccessful was he? The appellant is lying and it is said that the lie of an accused person may corroborate the prosecution case. See the case of Nkanga Daudi Nkanga V R, Criminal Appeal No 316 of 2013 (Unreported). With such evidence,

I find that the first ground of appeal is devoid of merit and I dismiss it. As for the second ground of appeal that the Magistrate erred in law by believing the evidence of the witnesses of prosecution whose demeanor and credibility was questionable. The appellant challenged the contention by PWl that he saw him torching houses No 1, 2, and 3 while she was awaked by the alarm of PW2 who saw him torching house no 2 and no 3. According to the testimony of PWl, at page 6 of the type~ proceedings, she said that: - 8 ,. , 11 Having· reached outside 1 saw 'the burning· house, the accused person who is my son did so. In fact he set fire on iny three houses that is to say a dwelling house, kitchen and the last house was used by the accused himself'~ Further PW2 stated in his testimony at page 7 of the typed proceedings that; 11 I raised an alarm after seeing that the 1st house was burnt by the accused person as a result my grandmother did woke up and came outside, hence saw the accused setting fire to the 2nd and 3rd houses" From the testimony of PWl, there was nowhere that she stated that she saw the appellant burning house no 1, all that she said was that, .u:;.- when she came out she saw the burning house and it was the appellant who burnt her three houses. It was PW2 who stated that he saw the appellant burn the first house. Therefore, I do not see any inconsistence on - that. .As

for the apparatus used, PW2 evidenced that he saw the appellant lighting an oil lamp and he used the same to light the bicycle tyre and the same was corroborated by PWl who found the appellant with the burning bicycle tyre as well as PW3. Therefore, like the trial court, I do find that the credibility of the witnesses is found on the coherence of their testimonies. See the case of Siza Patrice V R, Criminal Appeal No 19 of 2010 (Unreported). Besides, PWl, PW2 and PW3 are the close relatives of the appellants and they had no reason to lie against him, and the appellant has not given the court to believe if there is any. 9 • The appellant also attacked the evidence of PWl that how could she stop her from raising an alarm and not stop _PW2 who made the alarm that awaked PWl. Looking at the whole· circumstance of the case, the appellant did not have animosity with PW2 and that is why he woke him up before burning the house and told him to stand beside the door. As for why he did not stop hi~ fhat is best known by the appellant himself, but there is evidence of PW2 who said that he raised an alarm and his grandmother woke up. The same again is corroborated by PWl who woke up after hearing an alarm from PW2. Therefore the argument of the appellant has no substance and it is an afterthought. The complaint as to why one Juma Chacha was not called as witness need not detain me much; the

evidence on record shows that PW3 did not say that she was informed by Juma Chacha that the appellant was burning the houses. Further as correctly pointed out by Mr. Luvinga no required number of witnesses is required to prove a fact. By not calling the said witness, in my view does not draw any adverse inference as what was supposed to be proved was who burned the house, and Juma Chacha was not present when those houses were burnt. The appellant claimed that there was no independent evidence to corroborate the evidence of PW2. I agree with Mr. Luvinga that the evidence of a child may be considered and the same does not make it to be expunged if there is no corroboration if the court is satisfied that the child knows the duty of telling the truth and rintelligent=J:r'stand and l'e_liuJe. C for the court to pg,ke his evidence. That notwithstanding, the evidence of PWl and PW3 corroborates the testimony of PW2. 10 . :,., • " i As for con~ravening section 231 of ~riminal .Procedure Act; the trial . • I . 'magistrate on .his ruling, at page 11 of the-typed:-proc.ee.dings said that the accused was addressed in terms of section 231 of thEf CPA. To prove that the appellant was addressed/ on the same he was recorded on the same page saying that he will defend himself under oath and he will call no witness and has no exhibit. Again saying that there was a miscarriage of justice is an afterthought as there was none. All in all, I find no reason to faulty the trial magistrate as the case was proved on the strength of the prosecution case for there was an ample evidence to prove the same. Prosecution proved their case in the required standard, that is, beyond reasonable doubt. Therefore I find that the appeal lacks merit and I dismiss it in its entirety. It is so ordered

JUDGE AtMwanza 30/09/2015 11