republic vs juma mugaya mugaya jumanne masemele 8 others 2021 tzhc 3690 15 january 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MWANZA DISTRICT REGISTRY) AT MUSOMA CRIMINAL SESSIONS CASE NO. 56 OF 2018 REPUBLIC.................................................................................PROSECUTOR VERSUS JUMA MUGAYA @MUGAYA JUMANNE MASEMELE.................. 1st ACCUSED ALOYCE NYABASI NYAKUMU @ DIWANI................................2nd ACCUSED NYAKANGARA WAMBURA BIRASO @ JAMES MGAYA MAGIGI @ NYAKANGARA MAGIGI.......................................... 3rd ACCUSED MARWA MAUA MGAYA @ SERA M AU...................................... 4th ACCUSED NYAKANGALA MASEMELE MGAYA @ ROBERT BONIFACE @ ROBERT BONIFACE MAGIGI............................. 5th ACCUSED SADOCK ALPHONCE IKARA < §>NYABUGIMBI NYAKUMU @ SADOCK ALPHONCE........................................... 6th ACCUSED KUMBATA BURUAI @ BWIRE ALEX GEORGE.......................... 7™ ACCUSED NGOSO MGENDI NGOSO @ MASINI NGOSO @ JO H N .... .................................................................. 8th ACCUSED SURA BUKABA SURA @ PHINIAS YONA @ EPODA................. 9th ACCUSED JUDGMENT 1CP1December, 2020 & 12* January, 2021 M.M. SIYANI, J On the night of IS01 February 2010, seventeen (17) people were brutally killed by unknown armed assailants. The culprits ambushed three houses in a compound at Mgaranjabo street, Buhare area in Musoma District. They assaulted the victims with machetes and swords. At the 1 incident time, the first house which was owned by Kawawa Kinguye, was occupied by ten (10) people. Eight (8) people out of the said ten occupants including a child aged between 7 - 8 months, perished. In a second house owned by Moris Mgaya, six (6) people were killed leaving one injured survivor. In the last house owned by Dorica Mgaya three people were murdered and six (6) others survived the assault. Although the incident left several survivors who lived to tell the tale, none of them identified the culprits. The only clue as to those responsible for the killings, was a statement by Kulwa Kawawa (one of the two survivors from a house owned by Kawawa Kinguye). She made a statement before a policer officer No. E240 DC Javila (PW1) that she heard her father asking one of his assailants by the name "Diwani" before his death as to why he had decided to kill him. Nobody however knew the said "Diwani" and therefore upon arriving at the scene, the police authority decided to use a tracker dog to pursue the culprits. As such, a police dog No. 1495 handled by S/Sgt Hashimu (a dog handler) was brought to the scene of crime and having sniffed the scene, the dog led ASP Kakoki (PW3) and other police officers to a 5 kms journey. They followed the tracker dog passing in between several people until when they reached Nyegina village where they met a man who was carrying a male child on his bicycle. Having seen the man, the dog jumped at him signifying his presence at the scene of crime. He was the 2nd accused person in this case one Aloyce Nyabasi Nyakumu @ Diwani who was arrested immediately. Upon interrogation by D/CpI Obeid (PW16), the 2nd accused person confessed to have been among those who participated in the killings at Mgaranjabo area, Buhare. He also incriminated one Juma Mgaya (the 1st accused) who upon his arrest by D/Sgt Laurent, mentioned Nyakangara Wambura Biraso (the 3rd accused), Kumbata Buruai (the 7th accused), Sadock Alphoce Ikaka @ Nyabugimbi Nyakumu (the 6th accused) and others who are still at large. It was the prosecution's case that while incriminating others, each of these suspects, confessed to have assaulted and killed the victims with their machetes in revenge for the death of one Fredy Mgaya. Therefore, investigation which started with the sniffer dog identification of one of the suspects, led to the arrest of the accused persons, namely, Juma Mugaya @ Mugaya Jumanne Masemere, Aloyce Nyabasi Nyakumu @ Diwani, Nyakangara Wambura Biraso @ James Mgaya Magigi @ Nyakangara Magigi, Marwa Maua Mgaya @ Sera Mau, Nyakangala 3 Masemere Mgaya @ Robert Boniface @ Robert Boniface Magigi, Sadock Alphonce Ikaka @ Nyabugimbi Nyakumu@ Sadock Alphonce, Kumbata Buruai @ Bwire Alex George, Ngoso Mgendi Ngoso @ Masini Ngoso @ John and Sura Bukaba Sura @ Phinias Yona @ Epoda. They are jointly and together charged with seventeen (17) counts of murder for unlawful killing of Kawawa Kinguye Kinguye, Bhuki Kawawa Kinguye, Nyanyama Kawawa Kinguye, Meliciana Kawawa Kinguye, Juliana Kawawa Kinguye, Kinguye s/o Kawawa Kinguye, Nyarukende Kinguye, Magdalena Kawawa Kinguye, Nyasimbu Moris, Mgaya Moris, Irene Moris, Magret Moris, Maheri Moris, Nyangeta Moris Mdui, Umbera Mgaya, Joseph Asopheret and Dorica Mugaya contrary to section 196 and 197 of the Penal Code Cap 16 RE 2002. As noted above, following their arrest and interrogation, save for Ngoso Mgendi Ngoso @ Masini Ngoso @ John (the 8th accused person) and Sura Bukaba Sura @ Phinias Yona @ Epoda (the 9th accused person), the rest of the accused persons, confessed to have participated in the killings. Evidence led by the prosecution, shows that Sadock Alphonce Ikaka @ Nyabugimbi Nyakumu and Kumbata Buruai confessed before police officers; No. D. 6298 D/Sgt Rabiel Tenga (PW14) and No. E. 2636 D/C Deusdedit (PW21) and repeated their confessions before a justice of peace one Swalala Mathias Mathayo (PW11). The confessions of Sadock Alphonce Ikaka @ Nyabugimbi Nyakumu, were tendered and admitted in court as exhibits P43, P35, and those of Kumbata Buruai are exhibits P38 and P36. Kumbata Buruai also orally confessed before one Msafiri Magendi (PW13) and Wilhemina Bwire (PW19). Similarly, Juma Mgaya, Aloyce Nyabasi Nyakumu @ Diwani, Nyakangara Wambura Biraso and Nyakangara Masemele Mgaya, made their confessions before D/C Deusdedit (PW21), D/Sgt Rabiel Tenga (PW14), No. D.6122 D/Sgt Obeid (PW16) and WP 3347 D/Sgt Zuhura (PW20). The confessions were tendered and admitted in court as exhibit P42, P37, P40 and P41, respectively. Through the tendered confessions, the accused persons revealed that the killings, were an act of revenge of the death of one Fredy Mgaya who was killed by mob justice at Buhare village in the year of our Lord 2005 after Kawawa Kinguye (one of the victims) raised an alarm having suspected the said Fredy Mgaya and his two colleagues to be thieves. Common in the said statements is that all nine (9) accused persons together with others who have either died or still at large, had prior arrangement to terminate Kawawa Kinguye's family which was successfully executed on 16th February, 2010. According to D/Sgt Laurent (PW4), Juma Mugaya @ Mugaya Jumanne Masemere was arrested in Shinyanga and later transferred to Musoma. On 27th February, 2010, ASP Kakoki (PW3) received the 1st accused person at Bunda Police Station and searched his residence. Therefrom he recovered, among other things, a sword and a machete (Exhibits P26) which were subjected to DNA test to establish if the same were used in connection with the incident at Mgaranjabo. In the same vein, the premises of Nyakangara Wambura Biraso @ James Mgaya Magigi @ Nyakangara Magigi (the 3rd accused person) at Buruma village were also searched by ACP Nelson Sumari (PW7) and two mattresses (one, make Tan Foam) a phone make Nokia and a blue shirt which were believed to have been stollen from the scene, were recovered together with one machete. A Tan Foam mattress cover was also subjected to DNA test, A search in the premises linked with Kumbata Buruai @ Bwire Alex George (the 7th accused person) by SSP Kibona (PW9) led to recovery of a black trouser, a light blue tracksuit, jacket and white shirt written "Paradigm". The rest of the accused persons, were found with nothing in connection with the instant case. DNA samples collected by A/Insp Simkoko (PW10) were sent to Government Chemical Laboratory and assigned to Gloria Machumve (PW23) who conducted the forensic DNA profiling test by comparing the DIMA samples taken at the crime scene, victim's blood, buccal swabs from the surviving victims, their relatives, the accused persons and several items recovered and seized after the incident. According to PW23's DNA Report (exhibit P44) among others, the test was done in respect of a Mattress cover from exhibit P29 which was identified to be the property of the late Kawawa Kinguye recovered from Nyakangara Wambura Biraso (3rd accused); a sword (exhibit P26) which was seized from Juma Mgaya (1st accused) a blue shirt (exhibit P34) which was seized from Aloyce Nyabasi Nyakumu (2nd accused), buccal swab which was taken from the 4th accused person one Marwa Maua Mgaya @ Sera Mau and another mattress which was recovered from Kihengu Kyanzi a mother of the 8th accused person one Ngoso Mgendi Ngoso. According to exhibit P44, when a DNA profile from the mattress cover (exhibit P29) was compared with the DNA blood samples (A15) from a room occupied by Kawawa Kinguye, Buki Kawawa and Nyanyama Kawawa, the result matched. It is therefore a finding of the report (exhibit P44) that, the mattress recovered from the 3rd accused person one Nyakangara Wambura Biraso, had a link with a male DNA profile from blood samples taken in a room used by Kawawa Kinguye, Buki 7 Kawawa and Nyanyama Kawawa, who died in the incident of this case. A DNA profile taken from a sword which was seized from the 1st accused person Juma Mgaya, was compared with DNA profile from the victims in the house owned by one Moris Mgaya and again the result matched. The DNA profile test in respect of buccal swab of the 4th accused person and a blue shirt seized from 2nd accused person disclosed no link with the scene of crime. In defence the accused persons maintained their innocence by denying having either attended the preparatory meetings or participated in the killings of 17 people at Mgaranjabo. Except for the 8th accused person whose allegedly confession statement was not tendered in court and the 9th accused person who did not confess, the rest of the accused persons repudiated their confessions. They argued that they were tortured and forced to sign the confession statements. That notwithstanding and despite not challenging its voluntariness, the 6th accused person, faulted his extra judicial statement (exhibit P35) on the reason that the same was not read to him to know the contents therein. Regarding the search and recovery of items linked with the crime scene, the prosecution side tendered no search evidence in respect of the 8th a and 9th accused persons. However, there was no contention from the defence side about the search conducted in respect of the 2nd, 3rd, 4th 5th and 6th accused persons. On the other hand, the 1st, and 7th accused persons strongly denied having been searched at all by either ASP Kakoki (PW3) or SSP Kibona (PW9). It was the 1st accused person's defence that as he was not searched, then a machete, sword and a light blue jacket (exhibit P26) allegedly recovered from him and listed in exhibit P25, were not his properties and that he was merely forced to sign the certificate of seizure while under police custody. The 7th accused person simply denied having been found with a white shirt with a word "Paradigm" (P31), a black trouser, and light blue tracksuit (exhibit P33). He contended that items indicated in the certificate of seizure (exhibits P30 and P32), were unknown to him. With regard to the 3rd accused person, despite admitting to have been searched, he contended that, only one mattress, make Dodoma, a cell phone make Nokia C 1200, and jeans trousers, were seized from his house. It was therefore testified by the 3rd accused person that what 9 was tendered in court as exhibit P28 and P29 were different from what were seized from him. Except for the 4th and 5th accused persons who, admittedly, are relatives and were arrested together, the rest of accused persons disputed to know each other prior to their arrest in connection to this case. It was their defences that they only came to know each other while in remand prison and so it could have been impossible for them to name each other as alleged by the prosecution. For that reason, they denied to have any meeting prior to the incident. It was testified that even some of their names were given to them by police officers following their arrest. The 2nd accused person for example stated that the name "Diwani" was not his but the same was given to him by police. Similarly, for the 3rd and 8th accused person, who contended that the names "James Mgaya Magigi@ Nyakangara Magigi" and "Masini" were given to them by police officers. It was also the defence case that none of the accused persons was at the crime scene at the time when Kawawa Kinguye and his family were killed. However, it was only the 2nd, 3rd, 4th, 5th and 7th accused persons who disclosed their whereabouts on the fateful day. According to their 10 testimonies, the 2nd accused person was at Nyegina, the 3rd accused person was at Nyasura and the 4th and 5th accused persons were at Buruma village while the 7th accused person was at Bunda. On their part, the 4th and 5th accused persons, claimed to be under the age of 18 years when they were arrested in 2010. While the 4th accused person said he was 14 years, the 5th accused person claimed to have been 16 years old. It was their defences that being minors as such, they were not treated fairly as children from the moments of their arrest. After closure of the defence case, parties had a chance to make their final submissions. While the accused persons' Final submissions were made by Mr. Ostack Mligo, Ms Tumaini Mkingo, Mr. Geofrey Malobe, Ms Flora Okombo, Mr Wambura Kisika, Mr Kulwa Sanya, Ms Marry Joachim, Mr. Daudi Mahemba and Ernest Mhagama the learned counsel, the prosecution side final submissions were made by Mr. Ignas Mwinuka, State Attorney under the guidance and assistance of Mr. Renatus Mkude, Principal State Attorney, Mr. Valence Mayenga, Senior State Attorney and Mr. Yese Temba, State Attorney. For convenience, I shall refer similar arguments from the defence counsel jointly and specific arguments, separately when summarising their final submissions. li Through their final submissions, the learned defence counsel had similar arguments on; failure of the prosecution side to prove the case to the required standards, circumstantial evidence, chain of custody, identification, search and seizure, torture, confessions, incriminating statements from co accused, inconsistency evidence and DNA report. There were specific arguments on age of the accused, dying declaration, dog evidence and arrest of the accused persons. It was a common argument from the defence counsel that the case was not proved beyond reasonable doubts against all accused persons. For that reason, they urged the accused persons to be acquitted from the charges. On how the accused persons were arrested and linked with this case, counsel Mligo for the 1st accused person, contended that the said accused person was arrested at Bunda and not at Shinyanga as alleged by D/Sgt Laurent (PW4). He argued that there was no proof regarding to the 1st accused person's travel and arrest at Shinyanga. Consequently, since this is a doubt, he submitted, this court should follow its decision in Abel Petro @ Misalaba Vs Republic, Criminal Appeal No. 94 of 2020, Mwanza District Registry (unreported) by resolving the said doubt in favour of the accused person. 12 On items (Exhibit P24, P25 and P26) which were alleged to have been seized from the 1st accused person, it was submitted by counsel Mligo that there were contradictions in the prosecution's testimonies ASP Kakoki (PW3) and A/Insp Simkoko (PW10). According to the learned counsel, while ASP Kakoki's testimony indicates he only saw some blood stains on a jacket when seizing the same from the 1st accused person and that he also seized a sword and machete in a mere suspicion that they might as well been used to commit the offence despite containing no blood stains, A/Insp Simkoko's testimony shows that the same sword, had some blood stains and that is why he decided to subject both the machete and sword to forensic DIMA analysis. Counsel Mligo went on to state that while A/Insp Simkoko labelled a machete as D13 and a sword as D19, the forensic DNA profiling report (exhibit P44) by Gloria Machumve (PW23) named the sword as D13 and a shirt seized from the 3rd accused person was labelled as D19. The inconsistency above, he submitted, revealed improper documentation of exhibits and again he invited the court to follow its decision in Mpanda Mlologa and 7 Others Vs Republic, Criminal Appeal No. 373 of 2018 Dar es salaam DistrictRegistry (unreported) where improper handling of exhibits leading to a broken chain of 13 custody, was held to be a fatal irregularity. Counsel Mligo was firm that inconsistence in evidence can only be ignored where the same does not go to the root of the case and so in his opinion, the inconsistency being on weapons allegedly used to commit the offence, was relevant and goes to the roots of the case as it was observed by this court in DPP Vs John Lambikano, Criminal Appeal No. 18 of 2020, Kigoma District Registry (unreported) As far as the confession statements tendered by the prosecution (exhibits P35. P36, P37, P38, P40, P41, P42 and P43) against the 1st, 2nd, 3rd, 5th, 6th, and 7th accused persons are concerned, it was a common submission by the defence counsel that the same were repudiated on the reason that the accused persons were forced to sign them after being tortured. It was submitted that being repudiated; the confessions, require competent corroboration before the same can be acted upon and supported such position with the decisions in Mkubwa Said Omar Vs SMZ [1992] TLR 365 and Mbushuu @ Dominic Manyaroje and another Vs Republic [1995] TLR 97. As such the learned counsel, urged the court not to accord weight to such confessions despite admitting them as evidence. 14 On her part, Ms Tumaini Mkingo, the learned counsel for the 2nd accused person, contended that the caution statements should not be considered by the court because they contradict each other. She submitted that while exhibit P40 (the 2nd accused person's cautioned statement) indicates that the 2nd accused person did not attend any meeting which planned the killing of Kawawa Kinguye and his family, exhibit P43 (the 6th accused person'scautioned statement) indicates that the said 2nd accused person, attended the alleged meeting. Another inconsistency was pointed out by Ms. Mary Joachim, the learned counsel for the 7th accused person. Her concern was on the items seized from the 7th accused person. She argued that while D/Sgt Rabiel Tenga (PW14) testified that the 7th accused person told him that he wore a blue tracksuit (exhibit P33) when assaulting and killing Kawawa Kinguye and his family, Maximillian Robert (PW18) claimed the same tracksuit belonged to Joseph Asopheret who died on the material night. Regarding identification of the 2nd accused person through a dying declaration by the late Kawawa Kinguye, Ms Mkingo submitted that the incident happened at night where except for the flashlights from the culprits, there was no any other source of light to facilitate proper identification. She, therefore, urged the court not to accord any weight 15 on such evidence. Similarly, on the identification of the 2nd accused person by a sniffer dog, the learned counsel while referring to the case of Abdul Rajak Murtaja Daferdar Vs State of Maharastra (1970) AIR 283, urged the court not to rely on such evidence because there was no evidence given by a dog handler on the competence and experience of the said dog. With regard to the 8th accused person, it was submitted by counsel Mahemba that the DNA report indicates there was a sample taken from mattress cover which was seized from Kihengu Kyanzi, a mother of the 8th accused person one Ngoso Mgendi Ngoso. However, the said mattress was not tendered in court neither was Kihengu Kyanzi procured to testify. In his opinion, counsel Mahemba believed that such failure by the prosecution to summon Kihengu Kyanzi, deserves drawing of an adverse inference against them. Both counsel Flora Okombo and Kisika Wambura submitted on the age of the 4th and 5th accused persons. They contended that these, two accused persons were under 18 years of age when arrested in 2010. While it was argued that the 4th accused person was 14 years in 2010, it was submitted that the 5th accused claimed to be 16 years. In that 16 regard, it was argued that they ought to have been treated in accordance with the law of the child as from the moments of their arrests. In view of the learned counsel, being children, the 4th and 5th accused persons were unfairly treated and so evidence against them should be disregarded. The Republic's final submissions were made by Mr. Mwinuka who in his view, believed that the testimonies from twenty-three (23) witnesses procured by the prosecution side and forty-four (44) exhibits tendered during trial of this case, has proved the guilty of the accused persons. He contended that the standard of proof in criminal cases is not beyond any shadow of doubt, rather in terms of the decisions in Capt. Lamu and Another Vs Republic, Criminal Appeal No. 145 of 1991, CAT Mwanza (unreported) which quoted Miller Vs Minister of Pensions [1947] 2 ALL ER 372, Sophia Seif Kingazi Vs Republic Criminal Appeal No. 273 of 2016, CAT (unreported) and Chandrankat Joshubhai Patel Vs Republic, Criminal Appeal No. 13 of 1998, CAT Dar es salaam (unreported) the prosecution's burden is to clear only those reasonable doubts. 17 It was argued by Mr. Mwinuka that during the preliminary hearing of the instant case, all the facts regarding the accused person's names, their arrest, deaths of 17 people named in the information and its causes were not disputed by the accused persons. Therefore, according to the learned State Attorney, the only issue that remained in dispute was who killed the said 17 people. To respond to that question, Mr. Mwinuka submitted that the prosecution tendered evidence on the accused's oral confessions, cautioned statements and extra judicial statements. He contended that the 3rd, 4th, 5th and 6th accused persons made an oral confession before ACP Nelson Sumari (PW7) and the 7th accused person confessed before Msafiri Magendi (PW13 and Wilhelimina Aron Buriro (PW19) to have fully participated in the killings. On cautioned statements, Mr. Mwinuka argued that the 1st, 2nd, 3rd, 5th, 6th and 7th accused persons confessed before the police officers and such confessions were admitted in court as exhibit P42, P40, P41, P37, P43 and P38 respectively. In the same vein, it was submitted that the 6th and 7th accused persons confessed before a justice of peace and their extra judicial statements were admitted in court as exhibit P35 and P36. Citing the case of Ally Mohamed Mkupa Vs Republic, Criminal Appeal No. 2 of 2008 CAT (unreported), Mr. Mwinuka, argued that the 18 best evidence in any criminal trial, is of a person who confesses freely and voluntary to have committed the offence. It was submitted that a confession may include words or conduct or combination of both words and conduct from which when taken alone or in conjunction with other facts, may draw an inference that the person who said the words or did the act or acts constituting the conduct, has committed an offence. Mr. Mwinuka went on to submit that the contents of the accused persons' confessions were so connected and contained detailed accounts of the initial stages of the plan to kill the deceased persons in the name of revenge. He contended that the confessions described the role played by the accused persons and others who are still at large. Mr. Mwinuka submitted further that the confessions indicate the sequence of events leading to the death of the deceased persons which in his view, could not be given by a person who was neither a part to a plan nor had a knowledge of it something which the learned State Attorney believes was a guarantee of their truth on the fact that the confessors murdered the deceased. As such and despite being retracted or repudiated, Mr. Mwinuka urged the court to convict the accused persons basing on their confessions. He submitted further that a repudiated confession can be a sole basis of 19 conviction where the same is so detailed and elaborative as it was the case in Hatibu Ghandi and Others Vs Republic, [1996] TLR 12 which was cited with approval by the Court of Appeal in the case of Flano Alphonce Masalu @ Singu and Others Vs Republic, Criminal Appeal No. 366 of 2018 CAT Dar es salaam (unreported). That notwithstanding, Mr. Mwinuka submitted, even if the court would need other pieces of evidence to corroborate the confessions, the Postmortem Reports (Exhibits PI - 17), Sketch Maps of the scene of crime (exhibits P18 - P21), Pili Kinguye (PW2), Nyandora Kawawa Kinguye (PW5) and Maria Kawawa (PW22) testimonies and photographs taken immediately after the incident tendered and admitted as exhibits P22 correlate with the confessions on the motive and mode of the killings. He argued that the contents of the confessions reveal that the accused persons had a common intention to kill and so basing on the decision in Solomon Mungai and Other Vs Republic (1995) EA 782 which was cited with approval in the case of Elizabeth Elias @ Bella Vs Republic, Criminal Appeal No. 293 of 2015 CAT (unreported), conviction can be entered against all accused persons on the basis of their acting in concert. 20 On the doctrine of recent possession and expert evidence, the learned State Attorney submitted that some of the accused persons were found with the items believed to have been stolen after the killing incident at Mgaranjabo. Mr. Mwinuka submitted that the 3rd accused person was found with a mattress make Tan foam (exhibit P29) which was identified by PW22 to be the one which was used by her parents before their killings. There were also exhibits P31 and P33 which were found with the 7th accused person and identified by Maximillian Robert (PW18). According to the learned State Attorney, such evidence on exhibit P29, •♦ corroborated the testimony of Gloria Machumve (PW23) on her forensic DNA profile findings (exhibit P44) which linked same with the scene of crime. It was therefore submitted that in terms of the decision of the Court of Appeal of Tanzania in Mussa Ramadhan Kayumba Vs Republic, Criminal Appeal No. 487 of 2017 CAT Dodoma (unreported) proof of being found with stolen item, suffices to be a conviction ground against a person found with it not only for burglary or breaking but murder as well. On evidence of the identification of the 2nd accused person by a sniffing dog, Mr. Mwinuka conceded that there is no legal jurisprudence in Tanzania. He therefore based his arguments on persuasive authority 21 from Uganda in the case of Wilson Kyakurugaha Vs Uganda Criminal Appeal No. 51 of 2014 where the following conditions were set before dog evidence is considered: First; there must be evidence showing that the dog has some training. Second; the dog handler must have also some training. Third; there must be some evidence which shows how the dog managed to sport the suspect. In view of Mr. Mwinuka the contents of exhibit P39 (statements of S/Sgt Hashim who was the dog handler) and PW3 testimonies supported the three criteria as elaborated in Kyakurugaha's (supra) case as the same disclosed the experience and expertise of both the dog handler and police dog No. 1495. Regarding the defence testimonies, the learned State Attorney argued that, the same were characterised with general evasion on material facts and that the accused persons lied in court to the extent of corroborating the prosecution's case. In his view, Mr. Mwinuka submitted that the defence evidence did not shake the prosecution's evidence apart from merely raising incomplete sets of alibis. He submitted that before one relies on the defence of alibi, a notice of intention to rely on such a defence, must be issued to the court and the prosecution side as early as possible something which was not complied with by the defence in this case neither were there, evidence tendered to support the claim. In 22 the circumstance, the learned State Attorney urged the court to accord no weight on the same and referred the cases of Director of Public Prosecutions Vs Nyangeta Somba and Twelve Others [1993] TLR 69 and Maramo Slaa Hofu and 3 Others Vs Republic, Criminal Appeal No. 246 of 2011, CAT Arusha (unreported) which quoted with approval the decision on Makala Kiula Vs Republic, Criminal Appeal No. 2 of 1983 CAT (unreported) where similar position was reached. Mr. Mwinuka submitted as well on what he believed to be lies and after thoughts on the part of the 1st accused person. He contended that while giving his testimonies, the 1st accused person denied having disclosed to the police his personal particulars and that he merely heard the police saying they were at his house the previous day. However, when cross examined, the said 1st accused person changed the story and said he gave the police those particulars. Similarly, the 2nd accused person defence is that he was arrested because of a fight with a village chairman over a land conflict before changing the reason of his arrest to selling illicit liquor. According to the learned State Attorney, such change of stories by the 1st and 2nd accused persons, was an indication of lies on their part which may corroborate the prosecution's case as it was the case in Nkanga Daudi Nkanga, Vs Republic, Criminal Appeal No. 23 316 of 2013 CAT at Mwanza (unreported) and Felix Lucas Kisinyila Vs Republic, Criminal Appeal, Criminal Appeal IMo. 129 of 2002 CAT at Dar es salaam (both unreported). Responding to the 1st accused's defence that he was arrested at Bunda following a misunderstanding with one Mpangalala over his girlfriend, Mr. Mwinuka argued that, that issue was not raised at the time when D/Sgt Laurent (PW4), who arrested him testified in court. The learned State Attorney had similar views on the failure of the 2nd accused to cross examine PW3 regarding his arrest just as it was the case for the 3rd accused person who despite defending himself to have been found with a mattress make Dodoma, did not cross examine ACP Nelson Sumari (PW7) who claimed to have searched him and seized a mattress make Tan foam. Likewise, though it was the 3rd, 4th and 6th accused persons defences that they were tortured by the arresting officers, yet there was no cross examination in that regard to PW7 who, allegedly, arrested them. It was further submitted by Mr. Mwinuka that during cross examination and throughout their defences, the accused persons claimed that their cautioned statements were recorded out of the prescribed time. The 24 learned State Attorney maintained that such question was required to be raised at the time of admission and not during cross examination or while giving their defence testimonies. To him, the statements were recorded within the time articulated by the laws and even if the same would have been recorded out of time, the court should consider the exceptional circumstances and complications in investigation of the instant case as a valid ground that justified the delay. He cited the case of Yusuph Masalu @ Jiduvi and 3 Others Vs Republic, Criminal Appeal No. 163 of 2017 and Chacha Jeremiah Murimi and 3 Others Vs Republic, Criminal Appeal No. 551 of 2015, CAT Mwanza (un reported). Concerning recording of more than one confession by one officer as it was done by D/C Deusdedit (PW21) in the instant case, Mr. Mwinuka argued that such a practice is not prohibited by any law and referred the case of Dickson Elia Nsamba Shapwata and Another Vs Republic, Criminal Appeal No. 92 of 2007, CAT Mbeya (unreported), in his support. On failure by PW21 to certify in the cautioned statements (Exhibit P42 and P43) that the same were read over to the accused persons, it was submitted that the omission was curable because the contents of the statements themselves shows that the same were accordingly read over 25 and when giving his testimonies, PW21 stated to have read the same to them. To support his argument, the learned State Attorney cited the cases of Director of Public Prosecution Vs Janies Msumule @ Jembe & 4 Others, Criminal Appeal No, 397 of 2018, CAT Iringa (unreported) and Mohamed Hamis @ Sakis Vs Republic, Criminal Appeal No. 97 of 2008, CAT Mbeya (unreported), where the Court of Appeal ruled out that lack of certificate is a mere procedural issue which does not affect the weight attached to the substance of the caution statements. In the same vein, the learned State Attorney submitted that the absence of certificate of seizure on a cellular phone make Motorola C110 (exhibit P27) did not lower the evidential weight of such exhibit where there was a proof that the accused person was found with the said phone as it was observed in the case of Seleman Nassoro Mpeli Vs Republic, Criminal Appeal No. 3 of 2018, CAT Dar es salaam (unreported) On the searches conducted in this case where it was argued by the defence team that the same contravened section 38 of the Criminal Procedure Act, the learned State Attorney submitted that, the searches in this case were conducted in emergence under section 42 of the Criminal Procedure Act. Arguing in line with the findings of the Court of 26 Appeal of Tanzania in the case of Moses Mwakasindile Vs Republic Criminal Appeal No. 15 of 2017, CAT, Mbeya (unreported) Mr. Mwinuka contended even in cases where a certificate of seizure indicates that the complained search was done under section 38 of the Criminal Procedure Act, the court should look on the circumstances of evidence as adduced by the prosecution witness and find that the searches in the instant case were done under emergence as stipulated by section 42 of the Criminal Procedure Act, Cap 20 [RE 2002]. The learned State Attorney had also the same view with regard to failure by ACP Nelson Sumari (PW7) to secure independent witnesses when seizing items in respect of exhibit P28. He argued that while it was important to have an independent witness to a search, the absence of one is not necessarily fatal to the prosecution's case as it was observed in Sophia Seif Kingazi Vs Republic, (supra) which approved the findings in Tongora Wambura Vs Republic, Criminal Appeal No.212 of 2006 CAT at Arusha (unreported). In response to the defence team arguments that there were some material contradictions and discrepancies between what was testified in court by the prosecution's witnesses vis-a-vis their former statements, Mr. Mwinuka argued in line with the decision of the Supreme Court of 27 South Africa in S V Mafaladiso en Andere 2003 (1) SACR 583 which cited by the High court of South Africa, Guateng Division, in the case of Ntokozi Allister Sehle Segalo Vs State HC Case No. A543/2010. The learned State Attorney submitted that to discredit a witness who made a previously inconsistent statement, it must be shown that the deviation was material and contended that there were no sensible contradictions between the two in the instant case. That notwithstanding, it was argued that not every discrepancy or inconsistency in witness' evidence is fatal to the case and that minor discrepancies on detail due to lapse of memory on account of passage of time, should always be discarded as the law does not notice or concern itself with trifling matters. In view of Mr. Mwinuka, while urging the court to find the discrepancies minor, he prayed the court decide whether the same are minor as such or go to the roots of the case as it was stated by the Court of Appeal of Tanzania in Crospery Ntagalinda @ Koro Vs Republic, Criminal Appeal No. 312 of 2015 CAT, Bukoba (unreported) Finally, it was submitted by Mr. Mwinuka in response to the defence's claim on violation of the principle of chain of custody on DNA samples collected by A/Insp Simkoko (PW10) and submitted to Gloria Machumve (PW23) for forensic analysis. Mr. Mwinuka argued that A/Insp Simkoko's 28 testimonies indicated how he took and transferred the samples to PW23 whose testimonies show that having received the same she kept, labelled and preserved all the samples in integrity. In view of the learned State Attorney therefore, the absence of documents in respect of how the samples were handled did not amount to breach of chain of custody in the circumstances of this case and referred to the case of Chacha Jeremiah Murimi and 3 Others Vs Republic (supra) where the court of Appeal of Tanzania held that documents will not be the only requirement in handling of exhibit and that courts of law should consider other facts. In summing up to assessors, I guided them on the nature of evidence and the law governing; dying declaration and identification, confessions and incriminating statements by co-accused persons, search and seizure, doctrine of recent possession, expert evidence (Forensic DNA profiling report and sniffing dog evidence), circumstantial evidence, chain of custody, age of the accused persons, inconsistency and contradictory evidence, malice aforethought and the defence of alibi. Upon inviting their opinions, there was a consensus conclusion from the ladies and gentleman assessors that evidence tendered by the prosecution, has proved the offence of murder against the 1st, 2nd, 3rd, 29 5th, 6th and 7th accused persons. All three assessors also entered a verdict of not guilty in favour of the 4th accused person. The ladies and gentleman assessors however, had conflicting conclusions as to the fate of the 8th and 9th accused persons as it will be shown in later. The above stated, the offence of murder with which the accused persons stand charged, requires the prosecution side to prove mainly three ingredients. These are first; that there is a human being who died an unnatural death, second; that the said death must be a result of an unlawful act by the accused persons and third; that death was intended by the accused persons when doing that unlawful act. In considering whether the prosecution side has proved its case beyond reasonable doubts, I will start with the first issue; whether Kawawa Kinguye Kinguye, Bhuki Kawawa Kinguye, Nyanyama Kawawa Kinguye, Meliciana Kawawa Kinguye, Juliana Kawawa Kinguye, Kinguye s/o Kawawa Kinguye, Nyarukende Kinguye, Magdalena Kawawa Kinguye, Nyasimbu Moris, Mgaya Moris, Irene Moris, Magret Moris, Maheri Moris, Nyangeta Moris Mdui, Umbera Mgaya, Joseph Asopheret and Dorica Mugaya, died deaths which were unnatural. 30 As noted earlier, the fact that these 17 people have died, was not contested by the accused persons. It was also a common ground that their deaths did not arise from a natural cause, rather their lives were brutally cut short by whoever assaulted them. Key evidence in this issue came from exhibits PI, P2, P3, P4, P5, P6, P7, P8, P9, P10, P ll, P12, P13, P14, P15, P16 and P17. These are postmortem examination reports which were tendered during the preliminary hearing of this case and admitted without objection from the defence side. According to the said postmortem examination reports, (Exhibits PI to P17) all the above named 17 people, died as a result of severe loss of blood (haemorrhage) following multiple cut wounds. There were also testimonies from Pili Kinguye (PW2), Nyandora Kawawa Kinguye (PW5) Asopheret Siti (PW6), Victoria Manyonyi (PW8) Maximilian Robert (PW18) and Maria Kawawa (PW22). While PW5, PW18 and PW22 who witnessed the killings. PW2, PW6 and PW8 knew the deceased and saw their dead bodies with cut wounds after the incident. Since there was no contention on the causes of their deaths, as per the postmortem reports, then the fact that Kawawa Kinguye Kinguye, Bhuki Kawawa Kinguye, Nyanyama Kawawa Kinguye, Meliciana Kawawa Kinguye, Juliana Kawawa Kinguye, Kinguye s/o Kawawa Kinguye, 31 Nyarukende Kinguye, Magdalena Kawawa Kinguye, Nyasimbu Moris, Mgaya Moris, Irene Moris, Magret Moris, Maheri Moris, Nyangeta Moris Mdui, Umbera Mgaya, Joseph Asopheret and Dorica Mugaya, died unnatural deaths, was proved beyond reasonable doubt and I accordingly hold so. The first question being answered as such, the remaining issues for my determination are whether Kawawa Kinguye Kinguye, Bhuki Kawawa Kinguye, Nyanyama Kawawa Kinguye, Meliciana Kawawa Kinguye, Juliana Kawawa Kinguye, Kinguye s/o Kawawa Kinguye, Nyarukende Kinguye, Magdalena Kawawa Kinguye, Nyasimbu Moris, Mgaya Moris, Irene Moris, Magret Moris, Maheri Moris, Nyangeta Moris Mdui, Umbera Mgaya, Joseph Asopheret and Dorica Mugaya were unlawful killed by the accused persons and that in doing so, they intended death to occur. Apparently, evidence tendered and summarised above, indicates the prosecution's case has been built on the following premises. One; Kawawa Kinguye left a dying declaration which named a person called "Diwani" as his assailant; Two; the 2nd accused person was arrested after being identified by a sniffer police dog. Three; save for the 8th and 9th accused persons, the rest confessed to have been involved in the killings at Mgaranjabo. Four; Upon their arrest the 1st, 3rd and 7th accused persons were searched and several items linked with the incident of this case were recovered and seized and Five; Items seized from the accused persons and subjected to forensic DNA profiling test, proved a link with the scene of crime. Basing on the above premises, I will therefore be analyzing the tendered evidence as I respond to the question whether the prosecution's side has proved the guilty of each of the accused persons for unlawful killing of 17 people as charged. I will start with the alleged dying declaration of Kawawa Kinguye. In law, the last words of the deceased as to the cause of his death is what is known as dying declaration which is admissible in court as evidence against the named person. It is on record through DC Javila's (PW1) testimony that before his death, Kawawa Kinguye was heard by his daughter one Kulwa Kawawa Kinguye asking one of his assailants by the name "Diwani" as to why he has decided to kill him. Among the nine (9) accused persons charged in this case, the 2nd accused person has been named as Aloyce Nyabasi Nyakumu @ Diwani. Through his defence, the 2nd accused person denied to be called "Diwani" and stated that he was so branded as "Diwani" by police 33 officers after his arrest. However, during the preliminary hearing, the said accused person, did not dispute his names. As such the fact that the 2nd accused person is called "Diwani" was recorded in the memorandum of undisputed facts and so relieving the prosecution from the burden of proving the same. Through their opinions, two of the assessors in this case opined that the late Kawawa Kinguye properly identified the 2nd accused person one Aloyce Nyabasi Nyakumu @ Diwani, to be one of his assailants. The remaining assessor was of the opinion that evidence of PW1 being mere hearsay evidence, was not reliable and so there was no proof of identification of the said accused person. I have humbly reviewed and analysed the entire evidence on record, I am firm that since PW1 did not hear the deceased uttering those words which named a person called "Diwani", his testimonies as to the alleged Kawawa Kinguye's dying declaration, amounts to double hearsay evidence which is not the best evidence and therefore inadmissible. See Magdalena Sanga Vs Republic, Criminal Appeal No. 19 of 1980 CAT Dar es salaam (unreported). I have also considered the testimony of Maria Kawawa Kinguye (PW22) who despite witnessing the incident, failed to identify any of the culprits because the house where the 34 incident took place was dark with no light save for the culprits' flashlights. In my view, such conditions, could not have favoured a correct identification through the alleged dying declaration. Therefore, with much respect to the two assessors, and with what I have adumbrated above, I share the views of the remaining assessor by holding that the prosecution side has failed to prove a fact that Kawawa Kinguye left a dying declaration which named the 2nd accused person as his assailant. The above being determined as such, I will now address the question of admissibility and reliance of dog evidence. While it was the prosecution's case that the arrest of the 2nd accused person was a result of him being tracked by a police sniffer dog No. 1495, the 2nd accused person strongly denied having spotted by the alleged dog, stating that he was arrested by police officers while at his house. Evidence led by the prosecution through ASP Kakoki (PW3) who was among the arresting officers and S/Sgt Arnold (PW15) who recorded the statements of S/Sgt Hashimu (a dog handler) is that having sniffed the crime scene particularly a big stone which was believed to have been used to break the doors of the houses of the victims, a police dog No. 1495 led them to the 5 kms journey to Nyegina passing several people before jumping 35 at the 2nd accused person one Aloyce Nyabasi Nyakumu who was thereafter arrested accordingly. Dog evidence is normally considered as expert evidence which basing on its nature, can be highly influential in criminal prosecutions. However, if not scrutinised, dog evidence can be more prejudicial than it is probative. There is therefore a need to establish the necessary foundations of both the dog and its handler before such evidence, is relied upon by a prudent court. Admittedly, our criminal jurisprudence regarding admissibility of evidence of sniffer dogs is still developing. Except for what is provided generally under the Police General Orders (PGO No. 43), on handling of police dogs, there are no principles guiding the courts on admissibility and reliability of dog evidence. In Kenya, Uganda and India, courts of law have taken the position that admissibility of tracker dog evidence, would depend on proof of competence and experience of both a dog and handler. Addressing such an issue, the High Court of Kenya, observed the following in case of Omondi and Another Vs Republic (1967) E.A 802. 'B ut we think it proper to sound a note o f w arning about what, w ithout undue levity, we 36 m ay c a ll the evidence o f dogs. I t is evidence which we think should be adm itted w ith caution, and if adm itted should be treated w ith great care. Before the evidence is adm itted the court should, we think ask fo r evidence as to how the dog has been trained and fo r evidence as to the dog's reliab ility. To say that a dog has a thousand arrests to its credit is clearly, by itse lf, quite unconvincing'. Similarly, in Uganda Vs Muheirwe and Another, HCT-05-CR-CN-011 of 2012 at Mbarara High Court District Registry, the High Court of Uganda (Gaswaga, J) proposed the following principles when dealing with such evidence: 1. The evidence m ust be treated w ith utm ost care (caution) by court and given the fu lle st so rt o f explanation by the prosecution. 2. There m ust be m aterial before the court establishing the experience and qualifications o f the dog handier. 3. The reputation, s k ill and training o f the tracker dog [is ] require[d] to be proved before the cou rt (o f course by the handier/ trainer who is fam iliar w ith the characteristics o f the dog). 37 4. The circum stances relating to the actu al tra ilin g m ust be dem onstrated. Preservation o f the scene is crucial. A nd the tra il m ust n o t have becom e stale. 5. The hum an handler m ust n o t try to explore the in ner w orkings o f the anim al's m ind in relation to the conduct o f the trailin g. This reservation apart, he is free to describe the behaviour o f the dog and give an expert opinion as to the inferences w hich m ight p ro p erly be drawn from a p articu lar action b y the dog. 6. The court should d irect its attention to the conclusion which it is m inded to reach on the b asis o f the tracker evidence and the p e n is in too q u ickly com ing to that conclusion from m aterial n o t subject to the truth-e/iciting process o f cross-exam ination. 7. I t should be borne in the m ind o f the tria l ju d g e th at according to the circum stances otherw ise deposed to in evidence, the canine evidence m ight be a t the forefront o f the prosecution case o r a lesser lin k in the chain o f evidence." The decision in Uganda Vs Muheirwe (supra) was approved by the Court of Appeal of Uganda in the case of Kyakurugaha Vs Uganda 38 (Criminal Appeal No. 51 of 2014) [2014] UGCA 49 (18 December 2014) which is available at www.ulii.org. where the Court stated: We would approve o f the first 6 principles as providing sound guidelines in dealing with dog evidence..... in the 'first place with regard to adm issibility we regard it essential that the training and experience o f the dog handler and his association with the dog in question be established. Secondly there m ust be established in evidence the nature o f training, s k ill and perform ance o f the dog in question with regard to the particular subject at hand, be it tracking scents, or drugs, or whatever specialized skills it allegedly possesses so as to establish its credentials for that skill. The foregoing are prerequisites before the adm issibility o f such evidence. Nevertheless, once adm itted it is dear that such evidence m ust be treated with caution as it is possible that it may be fallible . ' In State of Uttar Pradesh Vs Ram Balak & Another (2008) 15 SCC 551, available at httDs://indiankanoon.ora/doc/1245959/, the Supreme Court of India referring para 378, Am. Juris. 2nd edn. Vol. 29, p. 429 on admissibility of tracker dog evidence, stated the following. 39 m ost courts in which the question o f the adm issibility o f evidence o f trailin g by blood­ hounds has been presented, take the position that upon a proper foundation being la id by p ro o f that the dogs were qualified to tra il human beings, and that the circum stances surrounding the tra ile r were such as to make it probable th at the person traile d was the g u ilty party, such evidence is adm issible and m ay be perm itted to go to the ju ry fo r what it is worth as one o f the circum stances which m ay tend to connect the defendant w ith the crime. Having considered the guidelines in dealing with dog evidence as developed by different jurisdictions, I am of the opinion that the following principles should be examined before dog evidence is used against an accused person. First; the qualifications of the dog handler must be properly established, in general, and then evidence must be given in relation to the behaviour and skills of the particular tracker dog. Second; there must be detailed basis evidence about the reliability of the dog in issues and about the skills and reliability of the individual dog as a tracker, before evidence can properly be adduced from a dog- handier about the tracking of a scent by a specific dog and third 40 evidence on preservation of the crime scene (where the same is involved) is of the uttermost importance. In the instant case, S/Sgt Hashim, was the dog handler of a police dog with force No. 1495 which, allegedly, facilitated the arrest of the 2nd accused person. According to S/Sgt Arnold (PW15) a police officer who recorded his statements, the said dog handler passed away in 2018 and therefore he could not be procured to testify in court. His previous recorded statements were therefore tendered by PW15 and admitted in court as exhibit P39 under section 34 B (1) and (2) (a) of the Evidence Act Cap 6 [RE 2002], I have gone through the contents of exhibit P39. In essence, the statement indicates that S/Sgt Hashim was trained to handle dogs at Moshi Police College way back in 1988. In this case, he handled a dog No. 1495 PD who was also trained to sniff and identify criminal suspects. The exhibit P39 reveals further that on the material morning, the respective police dog sniffed the stone which allegedly was used by the culprits to break one of the doors of the house at the scene of crime and from there he led the police officers to Nyegina village which is approximately five (5) km from the crime scene where the 2nd accused person was spotted by the said dog and arrested accordingly. 41 Evidence in respect of the contents of exhibit P39 was supported by the testimonies of PW3 one of the police officers who accompanied the dog handler in tracing the culprits and therefore allegedly witnessed the moment when the dog identified the 2nd accused person by jumping at him. Basing on such evidence, it is obvious that both the dog and the handler had some basic required trainings. Although there was no evidence from either ASP Kakoki (PW3) or S/Sgt Arnold (PW15) on the success story of the dog in identifying criminal suspects, the testimonies from A/Insp Simkoko (PW10), D/Sgt Rabiel Tenga (PW14) and PW15 indicate that the scene was protected by police tapes. While the absence of evidence on experience of the dog, may affect the evidential weight that ought to have been attached to exhibit P39, the fact that there exists in it, evidence on the training of the dog and the handler and the measures taken to protect the scene, make it reliable. The above said and done, the question whether or not the 2nd accused person was arrested after being identified by a police dog, need not detain more as the record is clear that when the preliminary hearing was conducted on 10th September, 2019, the 2nd accused person admitted the facts regarding his arrest which indicates that he was arrested on 42 16th February, 2010 at Nyegina village having been spotted by a police dog. The 2nd accused person signed the memorandum of undisputed facts to ascertain his stance on the same fact. It is the law under section 192 (4) of the Criminal Procedure Act, that facts admitted through preliminary hearings, are normally taken as proved and unless otherwise directed by the court, the prosecution side are relieved from the duty of establishing the same. Therefore, since the fact that the 2nd accused person one Aloyce Nyabasi Nyakumu @ Diwani was arrested after being tracked by a police dog, was not disputed during the preliminary hearing, his later defence in denial as to the same fact, is an afterthought. As it was for the ladies and gentleman assessors, I hold that the 2nd accused person was tracked by a police dog and arrested accordingly. Having determined the above as such, the prosecution side also relied on what was believed to be the accused persons' confessions. Such evidence shows, save for Ngoso Mgendi Ngoso @ Masini Ngoso @ John and Sura Bukaba Sura @ Phinias Yona @ Epoda (the 8th and 9th accused persons respectively), the rest of the accused persons confessed to have participated in assaulting and ultimately killing the 17 people at the incident of this case. It was therefore, the prosecution's case that 43 Sadock Alphonce Ikaka @ Nyabugimbi Nyakumu and Kumbata Buruai (the 6th and 7th accused persons) confessed before a police officer No. D. 6298 D/Sgt Rabiel Tenga (PW14) and No. E. 2636 D/C Deusdedit (PW21). The two, were also alleged to have repeated their confessions before a justice of peace one Swalala Mathias Mathayo (PW11). The 7th accused person was also alleged to have orally confessed before one Msafiri Magendi (PW13) and Wilhemina Bwire (PW19). Both their cautioned statements and extra judicial statements were tendered and admitted in court as exhibit P43, P38, P35 and P36 respectively. Similarly, Juma Mgaya, Nyakangara Masemele Mgaya, Aloyce Nyabasi Nyakumu @ Diwani, and Nyakangara Wambura Biraso made their confessions before D/C Deusdedit (PW21), D/Sgt Rabiel Tenga (PW14), No. D. 6122 D/Sgt Obeid (PW16) and WP 3347 D/Sgt Zuhura (PW20). The confessions were tendered and admitted in court as exhibit P42, P37, P40 and P41 respectively. Except for extra judicial statement of the 6th accused person of which its voluntariness was not challenged, the accused persons repudiated and retracted the statements. They denied to have made the statements and argued that they were merely forced to sign the same. It was the defence case that they were tortured by being beaten with clubs, 44 burned by electric iron and being left without food for several days. Each of these accused persons, showed what appeared to be old scars in their respective bodies and contended that they sustained the same through police torture while being forced to confess. Although an established principle of law is that, confession evidence from an accused person, is the best evidence in any criminal case, such a principle is rested on the premise that the alleged confession contains a voluntary and true account of what transpired in relation to the commission of the offence. That means, a conviction can only be based on a retracted or repudiated confession statement, where the court, is convinced that the said statement is true or where the same leads to the discovery of material objects connected with the crime. See Hemed Abdallah Vs Republic [1995] TLR 173 and John Peter Shayo and 2 Others Vs Republic [1998] TLR 198. On the other hand, where the confession has either been retracted or repudiated, courts of law should find collaborative evidence to justify its reliance. See Shihobe Seni and another versus Republic [1992] TLR 330 and Mkubwa Said Omar Vs SMZ [1992] TLR 365. Underlying * the need to have an evidence of retracted/repudiated confessions, 45 collaborated by other material evidence, the Court of Appeal of Tanzania observed the following in Paschal Petro Sambula @ Kishuu and 3 Others Vs Republic, Criminal Appeal No. 112 of 2005. ' .......... It was upon this confession that the conviction o f the 3rd appellant and the other two appellants was founded. Since the 3rd appellant had repudiated/retracted it and was not corroborated by m aterial evidence, it could not form the basis for convicting the appellants.' As noted earlier, save for the 6th accused person's extra judicial statement, the remaining confessions from the 1st, 2nd, 3rd, 5th, 6th and 7th accused persons one Juma Mugaya @ Mugaya Jumanne Masemere, (exhibit P42), Aloyce Nyabasi Nyakumu @ Diwani, (exhibit P40), Nyakangara Wambura Biraso (§> James Mgaya Magigi @ Nyakangara Magigi (exhibit P41) Nyakangala Masemere Mgaya @ Robert Boniface @ Robert Boniface Magigi (exhibit P37) Sadock Alphonce Ikaka @ Nyabugimbi Nyakumu @ Sadock Alphonce (exhibit P35 and P43) and Kumbata Buruai <§>Bwire Alex George (exhibit P36 and P38) respectively were retracted/repudiated in the instant matter. 46 On his part, and while disputing to have confessed either in planning or participating in the killings, the 1st accused person contended that he signed the statements which were not read over to him, having been beaten a lot in his knees and stabbed with a bayonet. It was also his defence that, prior to his arrest, all the co accused persons, were strangers to him and as such he could not have mentioned them before PW21. The 2nd accused person had similar version of defence. He claimed that he signed the confession statements after being tortured by being beaten and left without food for four days. According to him, he therefore signed the said documents having noted his health condition was deteriorating as a result of the inflicted torture. The 3rd accused person also disputed confessing before WP 3347 D/Sgt Zuhura (PW20). He claimed as part of his defence that, following his arrest on 28th February, 2010 he was taken before PW20 who forced him to sign some documents while being beaten. Similarly, the 5th accused person alleged having been tortured for three days while being forced to confess the killings. He stated that he was beaten, burnt by an electric iron and so he signed the recorded statements after witnessing another suspect dying as a result of torture. 47 The 6th accused person's defence, shows he was tortured by police officers who forced him to confess the killings and that on 1st March, 2010 he signed the confession statements (Exhibit P43) after witnessing the death of his fellow inmate one Bundala Nyantaryabukima who according to him, died for torture while under police custody. As it was for the 1st, 2nd and 3rd accused persons, he therefore testified that signed the statements without knowing its contents. On the side of the 7th accused person his confessions were repudiated on the reason that force was used to obtain his signature. He contended that the contents of exhibit P43 were not his as the police officers simply grabbed his right thumb and put the same in paper. As far as his extra judicial statements is concerned, the 7th accused person denied making them before Swalala Mathias Mathayo (PW11). Admittedly, except for the 4th accused person whose admission of his cautioned statement was declined on the reason that the same was involuntarily given, the remaining cautioned and extra judicial statements from the accused persons above, were ruled to be voluntary made and therefore admitted after each of them was subjected to a trial within trial test. That notwithstanding, through their defences, the 1st, 2nd, 3rd, 5th, 6th and 7th accused persons maintained as indicated above, 48 that they were tortured and forced to sign the statements. In the case of Nyerere Nyague Vs Republic, Criminal Appeal No. 67 of 2010, the Court of Appeal of Tanzania while upholding the decisions in Tuwamoi Vs Uganda (1967) EA 91 and Stephen Jason & Another Vs Republic, Criminal Appeal No. 79 of 1999, set it as a principle that even where a voluntariness of an otherwise repudiated or retracted confession statement has been cleared, a prudent court should always, evaluate the entire evidence and access the weight to be attached to it. The court thus observed: 'Ever if a confession is found to be voluntary and adm itted, the tria l court is s till saddled with the duty o f evaluating the weight to be attached to such evidence given the circum stances o f each case. ' To discharge the above duty, I will evaluate the entire evidence from both sides in respect of the confessions. Common in all the tendered confessions is the fact that the accused persons formed and executed a motive to kill in revenge for the death of Fredy Mgaya. Therefore, as it is for the cautioned statements of the 2nd, 3rd, 5th, 6lh and 7th accused persons, through exhibit P42, the 1st accused person for example 49 appears to clearly implicate himself by confessing the role played by him from prearrangement meetings to execution of a plan to kill Kawawa Kinguye and his family in revenge for the killing of the said Fredy Mgaya way back in 2005. The contents of his confession show how the killing was carried and the role played by each of the culprits. Explaining how the killing was carried, exhibit P42 indicates: Nakumbukuka mnamo tarehe 15/2/2010 m ajira ya saa OO'.OOhrs nikiwa m im i na Makiko Mugasa, Juma Kinoko, Bundata Nyantaryabukima, Ikaka Nyabugimbi,, Kumbata Buruai, Sadock Nyabugimbi, Mbita Kitenyi, Dura Dochi, Isore Mbogo na Masemere Jam es M agigi tdiienda eneo la m/ima Ba/imi huko Buhare nyum bani kwa Kawawa kwa a jili ya kulipiza kisasi kutokana na m auwaji ya Fredi Mgaya atiyeuwawa mwaka 2005 na wenzie wawiti na tuliweza kufanya m auwaji ya watu kum i na saba katika fam ilia ya Kawawa kwa kuwakatakata na mapanga katika m iji m itatu tofauti. Sababu ya s/si kufanya m auwaji hayo n i kwamba mnamo mwaka 2005 huyu marehemu Fredi Mgaya ambaye n i baba yangu kwa ukoo kuuwawa huko eneo ia mtima Balim i Buhare Musoma ambapo aliuwawa yeye na wenzake wawiii wakazi wa K ijiji cha Nyegina baada ya kusingiziwa kwamba n i wezi wa m ifugo so ambapo Kawawa ndiye aliyewatuhumu kuwa wamemwibia m buzi na ndipo alipow apigia yowe na hatim aye kuuwawa na wananchi.... Hivyo baada ya m auwaji hayo tuhkaa m iezi m itatu ndipo tulikaa kikao cha ukoo na kupanga kwenda kulipiza kisasi nyumbani kwa Kawawa na katika kikao hicho tulikaa nyumbani kwa Tabu Mugaya ambaye n i dada yake na marehemu Fredy Mgaya na watu wengine tuliohudhuria kikao hicho n i m im i na Makiko Mugasa ambaye n i Babu yangu. Juma Kinoko ambaye babu yangu na babu yake walichangiana urafiki wa damu, Bundala Nyantaryabukima ambae n i rafiki yake Makiko Mugasa ambaye huyu n i kaka wa marehemu, Ekaka Nyabugimbi ambaye huyu n i mpwa wa Bundaia Nyantaryabukima pamoja na Isore Mbogo, Dura Dochi na mwaiimu Mbita Kitenyi hawa n i m arafiki wa Makiko Mugasa na hawa wote tulikaa kikao na kuazim ia kwenda kulipa kisasi cha kumuua Kawawa ambaye ndiye ahyesababisha kifo cha marehemu Fredy Mgaya na mnamo tarehe na m wezi sikum buki mwaka 2006 tukiwa mimi, Makiko Mugasa, Juma Kinoko, Bundaia Nyantaryabukima, Ekaka Nyabugim bi Kumbata Buruai, Mbita Kitenyi, Dura Dochi na Isore Mbogo tuiiondoka K ijiji cha Buruma saa 17hrs kwenda Buhare na tuiifika nyum bani kwa Kawawa saa 21hrs..... SI The above statements from exhibit P42, show the first attempt to have Kawawa Kinguye killed failed, but nonetheless claimed the lives of innocent people. The same statement seems to find the support of Maria Kawawa Kinguye (PW22) who was one of the daughters of the late Kawawa Kinguye and whose testimony indicates the following in relation to the 2006 incident: I remember in 2006 we were also invaded and m y unde one John Kinguye and m y aunt Nyanteka Minguye died. I also survived that attem pt despite being injured in the le ft eye and on the chest with a machete. Exhibit P42 shows further that having failed to terminate Kawawa Kinguye in 2006, the 1st accused person and his colleagues found the opportunity to try a second attempt in 2010. According to the statement, on 15/2/2010, the 1st accused person was Informed by Makiko Mugasa through a phone call to attend a meeting at Buruma which ultimately decided that their long time waiting to avenge Fredy's death was over and that Kawawa Kinguye should be killed that night. For easy of reference, I find it prudent to reproduce the contents of the said statement: 52 ...Pale nyum bani niliw akuta Masemere Jam es Magigi, Makiko Panga Mugasa, Juma Kinoko, Isore Mbogo, Dura Dochi, M bita Kitenyi, Kumbata Buruai, Ekaka Nyabugimbi, Nyakangara Wambura Magigi, Nyam agati Maheka ambaye huyu n i mganga wa kienyeji aliyetupatia dawa ya kutafuna pin di tum alizapo kazi basi a k ili yetu isiruke, itu/ie na baada ya kula chakuia cha jio n i, tuiiondoka pamoja na kuetekea eneo la Mlima Balim i-Buhare. Tulipofika NyabuhuzL.tuiikutana na Aloyce akiwa na watu w aw ili ambao siwafahamu. ..Huyu Aioyce n i R afiki yake Makiko Mugasa na hapo zam ani aiikuwa anakuja kuiangua pombe ya m oshi k ijijin i Burum a...tulipofika nyum bani kwa Kawawa tulizingira nyum ba....ndipo Aloyce, Makiko Mugasa walichukua jiw e kubwa ambalo lilikuw a eneo hilo na kuvunja mlango wa nyum a....walioingia ndani n i Juma Makiko, Aioyce na wageni wake wawili, Bundala Nyantaryabukima, Ekaka Nyabungim bi na Dura Dochi...M im i na wengine tulibaki nje tukiwa na mapanga yetu kwa a jili ya kuwalinda wenzetu w aiioingia ndani. Ndipo niiisikia sauti ikisem a kwa lugha ya Kikwaya kuwa "nafwa nafw a" mana yake nakufa nakufa...w aiitoka nje na Makiko Mugasa aiisem a kwamba tumemkuta Kawawa na tayari tumemmaliza twendeni. 53 Tuliondoka kuelekea kwenye m iji m ingine uelekeo wa njia kubwa....na tuiipofika hapo ndipo huyu Aloyce atichukua jiw e iiliiokuw epo hapo nje na kupiga mlango na walioingia m/e ndani n i Makiko Mugasa, Aloyce na watu wake w aw ili na Bundala Nyantaryabukima na m im i nilibaki nje...wakiwa humo n ilisikia kelele zikisem a kuwa "sina fed ha chukueni e/fu thelathini..nilikuw a nalangua maziwa nikaacha na sasa nalangua sam aki"...na ndipo walipotoka nje tulianza kuelekea nyumba ya tatu ambayo iiikuw a ya nyasL.na huyu aioyce alipiga teke mlango na tuliingia m im i na Aioyce, Makiko Mugasa na wageni w aw ili wa Aioyce. The above piece of evidence from exhibit P42 is in my view, very elaborative on how the plan to have Kawawa Kinguye killed in revenge for the death of Fredy Mgaya, was executed and in fact there is great corroboration between what has been stated in exhibit P42 and testimonies from some of the prosecution's witness. Several things caught my attention here. First; the fact that the assailants broke the doors using a stone, find support from Nyandora Moris (PW5) testimonies. This witness was one of the survivors of the killings and 54 who witnessed the incident. In her own testimony in this court PW5 stated the following: I rem em ber we were sleeping with my grandm other the late Dorica Mgaya whose house is not far from m y father's house. There were two students one Maxim ilian Robert and Joseph Asopheret who used to go to read in the neighbor's house where there was electricity. The two le ft around 8pm and returned around OOhrs am shortly after their return m y grandm other said she heard an alarm a t m y father's house. I thought she was dreaming. Then we heard footsteps coming our way. Then m y grandm other said "she w ill die with a ll her children. I decided to hide under the bed. Then people broke the door bv using a big stone. They had flashlights. I saw four people. [Underlined em phasis supplied] Second; I also find a link between who lifted a stone to break the doors as per exhibit P42 and tracking of the 2nd accused person by a police dog according to the testimonies of PW3 and exhibit P39. While exhibit P42 indicates, a person called Aloyce was the one who took a big stone and broke the door of the house owned by Kawawa Kinguye so that the assailants could enter inside and kill, the contents of exhibit P39 (the 55 dog handler's statements), shows when a police dog was brought to the scene that night, the same was led to sniff the stone which was believed to have been used to break the door and from there, the said dog led the police to Nyegina village where Aloyce Nyabasi Nyakumu, the 2nd accusedperson in this case was arrested after being tracked by that dog. PW3 being among the police officers who arrested the 2ndaccused person, had a similar story. Explaining how the dog tracked the 2nd accused person and his arrest, PW3 stated the following: The dog sniffed the house o f Kawawa M oris and then Dorica. There after the dog went behind the house o f Dorica. We follow ed the dog. There was a farm and we saw there three bags make Omega. The dog sniffed them. We handled the bag to forensic unit Then the dog went forward. He passed the fence and we followed him we reached a river where we m et some people. We crossed the river. We m et other people who were going to their farm s as they had hoes. Then we m et a certain person who had a bicycle and a child. The dog jum ped at that man who was on a bicycle. We therefore arrested that man. Third; the number of occupancies in Maximillian Robert's (PW18) room on the material night According to exhibit P42, when the 1st accused 56 person entered the third house he went to a room where he found two young men and attacked them using his machete. The contents of the cautioned statements of the 1st accused person, indicates in that regard: NUiingia chumba cha mkono wa kulia na m le chum bani niliwakuta vijana wawili wakiwa wamelala kitandani na kulikuwa na neti ya rangi ya blue. Ndipo nilikata kijana mmoja kwa panga sehemu za begani na wa pHi nllim kata sehemu za kiunoni. Although both Nvandora Kawawa Kinguye (PW5) and Maximilian Robert (PW18) stated that the above said room was occupied by three people (Joseph Asopheret, Maximilian Robert and Keya Mgaya), according to PW18, Keya Leonard survived as he hid himself under the bed when the culprits entered the house. This might be the reason why he escaped unscratched as his assailants did not spot him. As far as the 2nd accused person is concerned, his cautioned statements (exhibit P40) indicate almost the same story. He was involved in the plan by Masemere Mgaya to avenge the death of Fredy who was killed by a mob justice way back in 2005, following an alarm raised by S7 Kawawa Kinguye. Narrating how the 2nd accused person was dragged in the killings, exhibit P40 indicates: Baada ya kukutana na Masemere Mugaya aliniam bia kuwa anataka kutipa kisasi kwa kumuua Kawawa Kinguye wa Buhare kwa sababu alipiga yowe na watu wakampiga ndugu yake aitwaye Fredy Mugaya mwaka 2005 kwa kuwasingizia kuwa wamemwibia m buzi wake. Akanam bia kuwa m im i pam oja na Ruhuta Misenyero tumsaidie katika kutelekeleza m auwaji....Aiinam bia nitoe msaada kw ani na m im i naweza kupata tatizo akanisaidia. Tarehe 13/2/2010 saa ll:0 0 h rs asubuhi... Ruhuta M isenyero aiifika nyum bani na kunambia kuwa mpango wetu umekamilika na kazi hiyo ya m auwaji itafanyika tarehe 15/2/2010 saa za usiku. On how the killings were carried, exhibit P40 details the 2nd accused person involvements as from 17:00 hours on 15/2/2010 when he left with Ruhuta Misenyero to a meeting point at Nyabuzi Bisumwa where it was agreed that a journey to Kawawa Kinguye's premises would start around 21:00 hours. According to the said statements, on reaching there, the 2nd accused person found Masemere Mugaya, Juma Mgaya, S8 Makiko Mgaya and Nyakangara waiting for them. They therefore went to Mkirira where they joined others. From there, the statement is self- explanatory but reproducing the contents of exhibit P40, below is what happened in brief: Kipindi hicho n i kama saa sita hivi, tuliongozana hadi kwenye nyumba ya bati ya Kawawa Kinguye ambapo njiani m im i niiichukua jiw e kubwa kiasi nikam twisha kichwani Makiko Mugasa tukaenda hadi kwenye miango wa nyuma wa nyumba ya Kawawa ambapo Makiko aiivunja miango kwa kutum ia jiw e hiio na ndipo mimi, Nyakangara Mugaya, Makiko Mugaya, Ruhuta Misenyero @ Kurungusha Pamoja na Juma Mugaya tuiiingia ndani. M im i na Makiko Mugaya tuhkwenda moja kwa moja hadi chumba anachoiaia Kawawa na mkewe ambacho kiko mwisho wa nyumba hiyo upande wa kuiia.... Makiko Mugaya aiim kata panga Kawawa sehemu ya kichw ani na begani na m im i niiim kata panga mkewe Kawawa sehemu za mgongo na karibu na shingo Pamoja na m toto wake ambaye aiikuwa am eiaia na mama yake. M im i baada ya kuona nimeua huyo mama na m toto wake niiitoka nje. 59 On the side of the 3rd accused person, his cautioned statement (exhibit P41) indicates that he participated in the prearrangement meeting to kill Kawawa Kinguye in revenge for the death of Fredy Mugaya who was his grandfather. According to him those meetings were convened and chaired by his grandfather one Masemere Mgaya. He was therefore among those who traveled to Buhare on 15/2/2010 to execute the plan. Exhibit P41 reveals that around 21:00 hours on the material night, while in the company of Masemere Mugaya, Nyamagati Mahika, Bundaia Nyantaryabukima, Juma Kisiri, Nyakwaka Kisiri, Nyakisamwa James, Sadock Alphonce, Kumbata Alphonce, Ekaka Alphonce, Simba, Sura Bukaba, Nyamazuru Buruai, Kumbata Buruai, Ngoso Masini, Juma Mgaya Masemere, Juma Kinoko and Makiko Panga, traveled on bicycle to Mkirira where they were joined by Aloyce Nyabasi and Ruhuta Misenyero and others. From there, the group proceeded to Buhare area where they invaded a total of three houses and assaulted the victims therein with their machetes something which resulted to the deaths of 17 people. On how Kawawa Kinguye and his family were killed, exhibit P41 explains: M ajira ya saa 00:00hrs au 00:30hrs usiku tulifika nyum bani kwa Kawawa Kinguye..., Ruhuta Misenyero @ Kurungusha na Aloyce Nyabasi waiianza kutupangia majukumu ya kufanya 60 ambapo m im i niiipangwa maeneo ya nje kulinda kwenye m ji wa bati na wengine w aw ili ambao m im i siwafaham u kwa m ajina na wengine kupangiwa m iji mwingine m iw iii ya nyasi na bati iiiyoko ju u upande wa kushoto toka kwa Kawawa.... Nikiwa nipo hapo naiinda ndipo Aioyce Nyabasi @ Diwani, Ruhuta Misenyero na Makiko Panga walienda nyuma ya nyumba ya bati kuchukuwa jiw e ambaio hiikuwepo hapo na waiimtwisha Aioyce Nyabasi @ Diw ani kichw anl na kuvunja m/ango uiiokuwa unatazama m iim ani na kisha Juma Makiko, Nyam agati Mahika, Ruhuta Misenyero @ Kurungusha, Jum a Kisiri, Bundaia Nyantaryabukima, Ekaka Aiphonce @ Nyabugimbi, Aioyce Nyabasi @ Diw ani na wengine watatu sikuwafahamu kwa m ajina waliingia ndani na kiia mmoja akiwa am eshikiiia panga m kononi Pamoja na tochi....niiisikia yowe ia sau ti ya mwanaume... Baada ya muda kidogo nillingia ndani ya nyumba hiyo ....nilim ulika tochi niliyokuwa nayo, niliona damu nyingi zikiw a zim etapakaa kweye sakafu na m im i niiichukua godoro moja (a sponji HiHokuwa na damu kiasi na kutoka naio nje....na waiipotoka nje walisema ha pa tayari tumeshawauwa watu sita, hivyo tuiiondoka kueiekea kwenye m ji wa nyasi. 61 As the extract above reveals, it was part of the 3rd accused's confession that, having entered inside Kinguye's house he took one mattress which was later recovered by the police upon his arrest. Exhibit P41 is also dear on how the 3rd accused person was arrested almost two weeks later. For easy of reference, I have reproduced the contents of exhibit P41 on how the 3rd accused person was arrested and how a mattress which was taken from Kawawa Kinguye's house on the fateful night, was recovered as hereunder: Tarehe 28/2/2010 usiku nikiwa nyum bani kwangu nim elala walifika askari p o lisi na kunigongea mlango na nttpofungua niiikam atwa na askari na hapo nyum bani waiichukua magodoro m aw iii ya sponji, sim u m oja aina ya Nokia 1600, panga moja na nguo suruali m oja aina ya jin s i na shati moja ia mikono m irefu rangi ya b/uu. Kati ya magodoro m aw iii yaiiyochukuiiwa, moja n i Hie ambalo niiiiochukua nyum bani kwa Kawawa Kinguye na suruaii ya jin s i na sh ati la rangi ya b/uu lenye m ikono m irefu ndiio ambalo m im i nilikuwa nimevaa siku hiyo tuiipokwenda kuuwa kwenye m ji wa Kawawa. 62 Similar story on how Kawawa Kinguye and his family were assaulted on the night of 16th February 2010 can be seen in exhibit P37 (the 5th accused person cautioned statements), exhibits P43 and P35 (the 6*h accused person cautioned and extra judicial statements) exhibits P38, and P36 (the 7th accused persons cautioned and extra judicial statements) I have examined the contents of exhibit P43 where the 6th accused person gave his account of incident, the reason why the executions were and who carried the same. As it was for other cautioned statements, exhibit P43 also tend to suggest the killings were pre-arranged to avenge the death of Fredy Mgaya and that the 6th accused person participated in those preparation meetings and travelled to Buhare to carry the same. According to the statements, while at Kawawa Kinguye's house, the 6th accused person was among those who entered inside and assaulted the occupants therein. He named those who entered in that house having broken the door by a stone to be Nyakangara Mgaya @ Wambura, Juma Mgaya, Masemere Mgaya, Makiko Panga and Nyamagati Mahika. On the role played by each of the assailants while inside that house, exhibit P43 states: 63 Ndani ya chumba tulikuta mama na mume wake na Watoto wawili wameiata kitanda kim oja na m im i niiim kata baba panga moja na m im i ndiye niiiyekuwa wa kwanza kumkata sehemu za jira n i na bega karibu na shingo na hapo ndipo Juma Mgaya aiinam bia kwamba unafanya kazi ya kutegea hebu pisha m im i nimshughu/ikie aone. Na hapo ndipo nilim pisha na yeye aiiendeiea kumkata yule mwanaume na Nyakangara Wambura aiiendeiea kukata mwanamke na baadae waiiendeiea kukata Watoto wawiii ambao niiishuhudia wakifa. Na m toto mwingine alikatwa shingoni na mwingine kichwani na mwanamke waiiendeiea kumkata shingoni na sehemu m balim bali.... .Akina Juma Kinoko, Nyamazuru Buruai, Aioyce Nyabasi w aiirudi kukata kata watu vyumba vyengine.. The prosecution procured in court one Swaiala Mathias Mathayo (PW11), a primary court magistrate stationed at Musoma Urban primary court at a time of the incident of this case and therefore a justice of peace for that purpose. Through his testimonies he contended that the 6th accused person repeated his confession before him. Through exhibit P35, the 6th accused person appears to incriminate himself and named those who participated in the killings. Of concern, is that his role in Kawawa Kinguye's house seems to be the same as it was stated in 64 exhibit P43. He confessed to have assaulted Kawawa Kinguye with a machete around the shoulder before he let the 1st accused person to carry on the assault. In his own words, the 6th accused person stated through his extra judicial statement: Ndio tuliingia nyumba hiyo tukiwa na panga na upinde na wengine walikuwa na sim e Pamoja na tochi. Katika zoezi hilo m im i nUimkata panga mzee wa m ji mzee Kawawa chin’/ ya bega m gongoni ambapo mwenzangu Jum a Mgaya a/isema tupishe tufanye kazi naona kazi unayoifanya haifai tupishe tukuonyeshe kazi tunayofanya utasababisha watu watukute humu bure. Ndipo nilipom pisha Juma Mgaya akafanya kazi hiyo, akawakata kata pale wakafa. As far as the 7th accused person is concerned, the testimony of Msafiri Magendi (PW13), who witnessed his arrest, shows Kumbata Buruai who was found sleeping inside a room of a woman called Lucia, made a lot of efforts to escape. As he was finally apprehended by local militiamen, he started crying while lamenting that he knew was going to die in prison because of Mgaranjabo killings, At his rented house, his landlady Wilhelimina Aron Buriro (PW19) who witnessed his search testified to have heard him, during the search, confessing to have participated in the killing at Mgaranjabo. His cautioned statements (exhibit P38) which 65 was recorded by D/Sgt Rabiel Tenga (PW14) indicates that following his arrest, the 7th accused person told the police that apart from the killings, he also stole a black trouser (exhibit P33) and white shirt (exhibit P31). He volunteered to lead the police to his aunt's house where a shirt was recovered and later to his rented house at Chilinge Bunda where a trouser was also recovered. He even showed the police the clothes he wore on the incident night. I Describing what happened at Mgaranjabo on 16/2/2010, exhibit P38, like the rest of the confessions in this case, discloses the motive behind the killings to be avenging the death of Fredy Mgaya. The statement indicates among other facts that while at Kawawa Kinguye's house, the 7th accused person remained outside the premises. He however, confessed to have actively participated in a second house where having entered therein, he attacked one of the occupants by cutting his posterior chest with his machete. Although through his extra judicial statements, the 7th accused person denied to have entered any of the three invaded houses that night, but similar in both; the caution statements (exhibit P38) and his extra judicial statement (exhibit P36), is the fact that one; while the killings were carried on, the 7th accused person's involvement was on the second house, two; he was given Tshs 66 300,000/= to participate in the killings and three; that at the scene, he got among others, a black trousers as his share. I have given a length of thoughts to the confessions of the 1st, 2nd, 3rd, 5th, 6th and 7th accused persons as discussed above. In deciding the amount of weight to be attached to each of these confessions, I have considered the accused person's defence that they were tortured to sign the same. Admittedly, all these accused persons had scars in their bodies. No evidence was however, tendered by either the 1st, 2nd, 3rd, 5th, 6th or the 7th accused person, to support the claim of torture and therefore it is impossible to ascertain whether those scars had anything to do with the alleged torture. That notwithstanding, save for the 6th and 7th accused persons, the confessions given to the police by the 1st, 2nd, 3fd and 5th accused persons, were not repeated before a justice of peace. Such failure to have extra judicial statements of these accused persons, may justify their claim that they were tortured to sign the statements as in normal cause, a person who freely confess before a police officer would not have found it difficult to repeat such confession before a justice of peace. 67 In Ndorosi Kudekei Vs Republic, Criminal Appeal No. 318 of 2016 [TZCA] 49 (11th April, 2019) available at www.tanzlii.ora. the Court of Appeal facing with a case where only a cautioned statement and not an extra judicial statement was tendered, observed the following: .... what was placed before the court in evidence, was the cautioned statem ent only (exhibit PI), whereas the whereabouts o f the extra ju d icia l statem ent which was made to the ju stice o f peace was nowhere to be seen. With the absence o f the extra ju d icia l statem ent, the tria l judge was not placed in a better position o f assessing as to whether the appellant really confessed to have killed the deceased o r n o t In Samson Kadeya Kazeze Vs Republic Criminal Appeal No. 137 of 1993 (unreported) the Court of Appeal of Tanzania observed a similar stance and stated the following: The tria l Judge gave a very curious reason fo r the appellant's refusal to make an extra ju d icia l statem ent before the ju stice o f the peace because an accused is freer before the ju stice o f the peace than before the police. In our view this is exactly the point. I f the appellant fe lt he was 68 not free to refuse to make the cautioned statem ent then it was not freely made and it should not have been admitted. In another case of Richard Lubilo and Another Vs Republic Criminal Appeal No. 10 of 1995 (unreported) where there was evidence of torture through a PF3 (exhibit D l) that the cautioned statement by the 2nd appellant which incriminated the 1st, 2nd and 3rd appellants, was obtained through torture, the Court of Appeal of Tanzania, observed that such a confession was inadmissible even under section 29 of the Evidence Act regardless of its truth. The Court had this to say: Where torture is alleged, this Court has taken a more serious view and has im plicitly presum ed an associated confession to be vitiated and incapable o f adm ission under section 29 (o f the Evidence Act, 1967). This position is w ell stated in, in ter alia, Maona & Another Vs Republic, Crim inal Appeal No. 215 o f 1992, and Marus Kisukuli Vs Republic, Crim inal Appeal No. 146 o f 1993 From the above authorities it can be concluded that, a presence of an extra judicial statement, may act as an assurance of voluntariness of a cautioned statement. That means where it is alleged that a cautioned 69 statement was involuntarily obtained let us say through torture, the absence of extra judicial statement may as well bring doubt on voluntariness of the said confession. Basing on the decisions in Maona & Another Vs Republic, Marus Kisukuli Vs Republic and Richard Lubilo and Another Vs Republic (supra), it is therefore the law that a confession obtained through torture, is inadmissible regardless of its truth. In other words, where a claim of torture has not been established, the court can consider the truthfulness of an otherwise involuntary confession under the auspice of section 29 of the Evidence Act Cap 6 RE 2019. See Thadei Mlomo and Others Vs Republic [1995] TRL 189. The above said, it is my understanding that while in Richard Lubilo and Another Vs Republic (supra) there was a PF3 which directly proved that the appellant was tortured to obtain the alleged confession, in the instant case, there was neither a PF3 from any of the accused persons nor direct evidence to substantiate the defence's claim of torture. Torture in this case, can only be inferred by the absence of extra judicial statements which could support the voluntariness of the caution statements in respect of the 1st, 2nd, 3rd, and 5th accused persons. That is notwithstanding the fact that the accused persons have old scars in their bodies since considering the circumstances of this case, 70 it is impossible to stop at one conclusion that the said scars were a result of torture inflicted to the accused persons to secure their signatures in the confessions. That is because, these scars can be a result of anything else as it was evidenced by the 2nd accused person's cautioned statement when he stated that he obtained his scars through a car accident way back in 1989. Explaining the source of his scars, the 2nd accused person stated the following through exhibit P40: M im i sijaw ahi kushtakiwa kituo cha p o iisi na m ajeraha nitiyo nayo yalitokana na a ja ii ya kupinduka na g ari mwaka 1989 ambapo niiipinduka kwenye g ari aina ya Land Rover iiikuw a Buhemba. The above statement from the 2nd accused person, ascertains a possibility that the source of the old scars in his body might not necessarily be torture. Deriving from such premises, it is obvious that existence of scars alone, cannot be a proof of torture in relation to his confession. As there was no other evidence like PF3 as it was in the case of Richard Lubilo and Another Vs Republic, I find it safe to consider, the confessions tendered in this case for the purposes of ascertaining its truthfulness or otherwise as it was observed in the case of Hemed Abdallah versus Republic (supra). That being the case, I have thoroughly examined the contents of exhibits P35, P36, P37, P38, P40, P41, P42 and P43. In my opinion despite being repudiated, these confessions are so elaborative on the planning and eventually execution of the killings which could not have been given by any person except one who had knowledge of it. The 1st accused person for example, shows through exhibit P42 that he participated in the first attempt to have Kawawa Kinguye terminated which unfortunately led to a death of another person. His cautioned statement explains the following: Ghafla ni/iona b ibi kizee mmoja akitokea ndani ya nyumba lle...nillm m ulika na tochi na kumkata na panga na b ib i huyu aiiendeiea kukimbia akipiga yowe na kupita kwenye fens! ya katani.....m im i nilikuw a bado natinda wenzangu waiioingia ndani na muda huo waiitoka... na kusema "tumemuua kijana na siyo Kawawa ambaye ndiye tulikuwa tum em fuata"na hapo ndipo tuliam ua kuondoka. The fact that the first attempt to kill Kawawa led to the death of a man other than Kawawa, can also be found in Maria Kawawa's (PW22) testimonies who stated that in 2006, the culprits invaded their house 72 and killed two people including one John Kinguye. Despite being given in 2010, exhibit P42 explains with clarity an incident which occurred four years back. In my considered opinion, that is an assurance of the truth of the said statement and that the maker of the statements had knowledge of it. The same clarity as to what happened to Kawawa Kinguye and his family can be seen in the remaining confessions as I have indevoured to show and when a confession is like that, a court can safely act on it as it was observed by the Court of Appeal of Tanzania in William Mwakatobe Vs Republic, Criminal Appeal No. 65 of 1995 (unreported) In this case we are with respect to the leaned tria l Judge fully satisfied that the appellants confessions ..... were so detailed, elaborate and thorough that no other person would have known such personal details but the appellants. Appellants retracted confessions were clum sy attem pts to evade the consequences o f their crim inal acts. In Stephen 3ason and Two Others Vs Republic, (supra) the Court of Appeal of Tanzania had similar conclusion on confession statements when the following were observed: 73 The detailed account o f the in itia l stages o f the plan to k ill the deceased, the role played by each o f the appellants in the plan and the sequence o f events leading to the death o f the deceased, could not in our view, be given by a person who was not either a p art to the plan o r had knowledge o f it Through his caution statements (exhibit P40) the 2nd accused person stated that before his arrest and connected with this case, he used to deal with selling of illicit liquor commonly known as pom be ya m oshior gongo. A part of an extract from his statements, indicates: Nakumbuka mnamo tarehe 11/2/2010 muda na saa 15:00hrs a lasiri m im i nilikuwa natoka K ijiji cha Kam igegi kutafuta pombe ya M oshi nikiw a na baiskeli yangu na madumu m awiil...tarehe 16/2/2010 asubuhi saa 08;30hrs ni/imchukua m jukuu wangu..nikawa nampeleka zahanati ya nyegina ndipo njiani, nilikutana na na askari p o lisi akiwa na mbwa ambaye alinirukia akitaka kuning'ata..na hapo ndipo askari aliniponiweka chin i ya utinzi. Baada ya kunikamata walinipelelka hadi nyum bani kwangu na kufanya upekeuzi ndani ya nyumba yangu lakini walipata dumu 74 moja am balo lilikuw a Hnanuka pombe ya m oshi gongo. When testifying in court, the 2nd accused person conceded that indeed selling of gongo or pombe ya m oshi was his business. Refuting the prosecution's claim that he was arrested by a sniffing police dog, the 2nd accused person stated: That was a liar.... I was not spotted by a dog and even if that happened, the dog would have spotted me because o f alcohol sm ell as I used to se ll 'gongo.' The fact that similar statements found in the repudiated statements were also repeated by the accused person in defence, is a clear indication that the contents of exhibit P40 contains some true facts. Indeed, similar facts can be seen in the 1st accused cautioned statements (exhibit P42) when the following were stated in relation to the 2nd accused person: Huyu Aloyce n i rafiki yake Makiko Mugasa na hapo zam ani alikuwa anakuja kutangua pom be ya m oshi k ijijin i Buruma... 75 Exhibit P40 is elaborative on where Kawawa Kinguye and his wife Bhuki Kawawa were assaulted. While using his machete, a person called Makiko Mugaya attacked Kawawa Kinguye in the head and at the shoulder, the 2nd accused person assaulted his wife at the posterior part of the chest and near the neck. Such piece of evidence is corroborated by exhibit PI and P2, (the postmortem examination reports) which shows the body of Kawawa Kinguye had multiple wounds on the head and on the back and that of Bhuki Kawawa had multiple cuts wounds on the neck and at the back. As far as exhibit P37 is concerned, I am also of the same position that the same contains a true account of what happened to the victims of this case as narrated by the 5th accused person. His caution statement (exhibit P37) is well corroborated by the 6th accused person's extra judicial statements (exhibit P35) on the planning of incident of this case. Both exhibit P35 and P37, show the 5th accused person was involved in the preparatory meetings to terminate Kawawa Kinguye in revenge for the death of Fredy Mgaya. Moreover, some of the statements in the 5th accused person's confession, finds supports from the survivor's testimonies. For example, 76 exhibit P37 shows, the 5th accused person assaulted a woman in a third house with a grass roofing. The statement reveals in detail, the role of the 5th accused person from planning to its execution. Of particular interest, is the fact that, exhibit P37 shows the 5th accused person assaulted one of the women in a house which had grass roofing. Such piece of evidence, seems to find support from Nyandora Kawawa Kinguye's (PW5) testimonies. According to his confession, the 5th accused person was so specific when he described a person, he assaulted by using his machete to cut her neck, to be a woman. For easy of reference, I have reproduced the contents of both exhibit P37. Tuiipotoka pale tulikwenda m ji wa ju u kidogo ambako niliona nyumba moja Hiyoezekwa kwa nyasl, nao tulivunja kwa kupiga teke na nakumbuka aliyepiga teke alikuwa n i Jum a Mgaya. Pale tufiingia ndani wengi na m im i nilim kata panga b in ti mmoja panga la shingo. Pa/e tulichukua vitenge kwenye sanduku. Vitu NHivyochukua m im i n i suruaii m bili rangi kama ya njano na m ashati mawili. PW5 was among the occupants of Dorica's house that night. Explaining the situation in the room when the culprits entered, PW5 stated the following: 77 In the room there was Nyasinde Bita, Sephroza Bita, Magesa Charles and Nyandora Moris who is me. Nyasinde also came to hide under the bed and Sephroza covered herself with my grandm other's blanket. I was about 12 years by then. Nyasinde Bita was 13 years. Sephroza Bita was 11 years. My grandm other and aunt were attacked by pangas in several parts o f their bodies. My aunt was slashed in her neck. My grandm other was also slashed with panga in her neck. The above pieces of evidence show a nexus between the 5th accused person's confession and PW5's testimony. In my opinion, it would not have been possible for a person who had no knowledge of the killings, to know not only that among the victims in that house, was a woman but more so, she had her neck cut by a machete. There was also evidence of (exhibit P22) photographs taken at the scene after the incident of this case. Among the 34 photographs, one of them indicates a grass roofed house which supports the 5th accused person's confession that indeed, there was such a house. 78 The above being stated, I am aware that one retracted or repudiated confession cannot corroborate a similar retracted confession from another accused person since each requires corroboration. Therefore, being repudiated, these confessions statements cannot corroborate each other. See John Cherehani and Another Vs Republic, Criminal Appeal No. 189 of 1989, Court of Appeal of Tanzania, (unreported). However, as I have tried to show above (even without referring similar statements in the confessions) the accused persons confessions contain well and elaborative statements on how the executions were planned and carried out in revenge for the killing of Freddy Mgaya, something which guarantee its truth and for that they can be acted upon by any prudent court. I am fortified in this conclusion by the decision in Mukami Wankyo Vs Republic [1990] TLR 46 where the Court of Appeal of Tanzania observed that confessions which contains true statements can be safely relied. The Court thus stated the following: Thus, fortified we are satisfied that ...... the confession contains nothing but the truth, and can safely be relied upon to convict the appellant in keeping with the rule stated in the Tuwamoi Vs Uganda [1967] E.A page 84. 79 Through their defences, the 4th and 5th accused persons, raised the question of age. They contended that they were under 18 years of age when arrested in 2010. While the 4th accused person stated that he was 14 years in 2010, the 5th accused claimed to be 16 years. Apparently, it is part of our law under section 4 of the Law of Child Act No. 21 of 2009, that any person below the age of 18 is regarded as a child and that the procedure of dealing with children in conflict with law, is different from normal procedure laid down under the criminal procedure laws. Children who find themselves in conflicts with the law, enjoy some protection which start at the moment of their arrest, investigation, prosecution and even sentence imposed. It is therefore, the best practice that where a question of age of the accused person is intended to be raised in defence, the same should be raised at the earliest stage of the trial to enable the court to determine it. In this case, the 4th accused person raised the question of age when his confession statement was tendered and repeated the same through his defence testimony. I find such a claim justifiable because even ASP Nelson Sumari's (PW7) testimony supports the fact that when arrested on 28* February, 2010, the 4th accused person who was younger than so the 5th accused person, was 15 years old. Through his testimony PW7 stated the following: We decided to arrest the two children of Masemere that is Marwa and Nyakangara.... They looked young a t that time. Marwa Mau was the youngest and follow ed by (Nyakangara) Masemele....... The children o f Masemele were young o f between o f 15 -1 8 years.... In my view, PW7 testimony's above, proves that the 4th accused person being the youngest among the two children of Masemele who were arrested in connection to this case, was 15 years old in 2010, was a child. On the other hand, the prosecution led evidence through D6298 D/Sgt Rabiel Tenga, (PW14) which indicates that the 5th accused person was an adult of between 18 and 20 years old when arrested. The 5th accused person did not draw the attention of the court as to his age at any earlier stage. He waited until when he was giving his defence testimony to raise it and even through such testimony, the 5th accused person himself, neither knew the date nor the month, except for the year of his birth. 81 Even when exhibit P37 was tendered, the 5th accused person did not object its admissibility on any of the reason of violation of the law of the Child Act. Therefore, in my opinion, since the question of age was so crucial in determination of this case as far as the 5th accused person is concerned, raising it in his defence, amounted to an afterthought. That notwithstanding, I have scrutinised the entire evidence from the defence side and I am settled that apart from merely saying he was born in 1994, the 5th accused person did not tender any other evidence to support his defence. His claim that he was a child when arrested in 2010 is therefore, unsubstantiated. Having ruled as above, it was the prosecution's case that following the arrests of the 1st, 3rd, 6th and 7th accused persons, they were searched and several properties linking them with the offense were recovered and seized. According to PW3, when searched, the 1st accused person who was arrested after being incriminated by the 2nd accused person, was found in possession of among others, a sword which contained some suspected blood stains. Being suspicious that the sword might have a link with the killing incident at Mgaranjabo, A/Insp Simkoko (PW10) took a swab sample from the said sword and subjected the same to DNA test. A Forensic DNA Profiling Test Report (exhibit P44) prepared and 82 tendered by Gloria Machumve (PW23), revealed that the sword contained the blood of the victims of the assault from the house of the Moris Mgaya. On being interrogated, Juma Mgaya also mentioned Nyakangara Wambura Biraso, who when arrested and searched by ASP Nelson Sumari (PW7), he was found with among others, a mattress with a blue cover make Tanfoam (Exhibit P29). The said mattress was identified by Maria Kawawa Kinguye (PW22) a daughter of late Kawawa Kinguye and the survivor of the incident of this case, to be the one which was being used by her late father. As such, the cover of the recovered mattress, was also subjected to DNA test and according to PW23 the results linked it with the DNA of a male victim from the house of Kawawa Kinguye. In defence, the 1st accused person denied having either been searched or found with a sword (exhibit P26). The 3rd accused person also denied to have been found with a mattress make Tan foam (exhibit P29). In essence their defences were that they were not found with exhibit P26 and P29 which were subjected to DNA test. Moreso, the accused persons challenged the way the DNA samples were handled from the moment of their collection to the time they were tendered in this court. It was contended that there was improper or no documentation on S3 handling of the samples and therefore there was a break of chain of custody. In that regard, it was also argued that there was inconsistency on the naming of the exhibits which were a subject of a forensic DNA profiling report (exhibit P44). Picking an example, it was argued that while samples from a machete and sword seized from the 1st accused person were labelled by A/Insp Simkoko (PW10) as D19 and D13 respectively, exhibit P44 shows D13 was a sword instead of a machete. My response to this will be brief because first; when tendered in court, the 1st and 3rd accused person did not object admissibility of exhibit P26 and P29 which according to ACP Nelson Sumari (PW7) was seized upon searching the 1st and 3rd accused houses. As such the defence's claim that the 1st and 3rd accused persons were not found with these items, was therefore an afterthought. Secondly; on chain of custody, there was evidence from PW23 whose testimonies show she received sealed packages containing the DNA samples from A/Insp Simkoko (PW10) on 9th March, 2010 and 30th March, 2010. According to her, these exhibits were labeled and kept in a laboratory room which is special for receiving such kind of samples and she was the custodian of the said exhibits. 84 The purpose of recording the chain of custody in respect of exhibits intended to be used as evidence in court, is to establish a link between those items and the crime and so remove the possibility of such exhibit being fraudulently tempered with, While it is common that chain of custody may be proved by paper trail as it has been observed in so many decisions like Paulo Maduka and Four Others Vs Republic, Criminal Appeal No. 110 of 2007, Meshack Abel Vs Republic, Criminal Appeal No. 297 of 2013, Zainabu Dotto Nassoro Vs Republic, Criminal Appeal No. 348 of 2018, and Abuhi Omari Abdallah and 3 others Vs Republic, Criminal Appeal No. 28 of 2010 (all unreported), in terms of the decision of the Court of Appeal of Tanzania in Charo Said Kimilu and Another Vs Republic, Criminal appeal No. I l l of 2015 (unreported), the same may as well be proved by oral evidence which shows that from the moment of its seizure, the chain of custody of the particular exhibit, was never broken. It is therefore a correct position of law in our country that even where there is ample and credible evidence that an exhibit exchanged hands, documentation is not the only proof of its handling. A chain of custody of an exhibit can be proved by witnesses who were present while the exhibit exchanged hands, provided the court believes them. as In this case, although there was no proof of documentation tendered in court on how the exhibits passed from A/Insp Simkoko to Gloria Machumve (PW23), these two witnesses are the only ones who dealt with the same and according to their evidence, the samples never shifted to a third person. Their evidence is that, A/Insp Simkoko (PW10) collected the samples and handled them in personal to PW23 who having received them, became not only the sole custodian who but also analysed the samples and prepared a report (exhibit P44). In my view, while appreciating that proof of chain of custody through paper trail is important, but as it was stated in Charo Said Kimilu and Another Vs Republic, (supra) there was no need of paper documentation in the circumstances of this case. The oral account of PW10 and PW23 on the movement of the samples in respect of exhibit P44, sufficiently establishes the chain of custody of the said exhibits and that the same was not broken. It is also my view that the nature of the samples themselves being DNA swabs extracted from a sword (exhibit P26) and piece of mattress cover (exhibit P29) which were sealed and preserved accordingly were not ones that could have been easily tempered with. Third; on improper labeling of exhibits, it is correct that when A/Insp Simkoko was testifying in court on 17th September, 2019 said he labeled 86 samples from a machete and sword seized from the 1st accused person as D13 and D19 respectively and submitted the same for forensic DNA test. This piece of evidence contradicts not only with the labelling in exhibit P44 which shows that D13 contained DNA findings from a sword and D19 was in respect of a DNA findings from a shirt seized from the 3rd accused person, but also A/Insp Simkoko's own statements which were tendered and admitted as defence exhibit D3. It is on record that while in both exhibits D3 and P44, sample D13 and D19 were in respect of a DNA samples from a sword and a shirt respectively, A/Insp Simkoko's testimony in this court shows D13 covered DNA sample from a machete. I have considered the inconsistency and attributed it to the period of more than nine (9) years that has lapsed from the time when A/Insp Simkoko (PW10) collected the samples to the time when he testified in this court and I hold a firm view that such long time, can impact negatively on the witness's memory. As human being's memory normally fades away with time, I find that the wrong account of A/Insp Simkoko in court as to the labelling of the exhibits, was a memory issue associated with lapse of time. I believe there was a lapse of memory on how he labeled the collected samples. That is why when responding to 87 the questions posed by Mr. Mahemba, the learned counsel for the 8th accused person, A/Insp Simkoko (PW10) indicated that gap by stating the following: There was a m attress seized from Nyakangara Wambura Biraso which I took a piece o f its cover and m ark as P L The sam ple from the sw ord was m arked as D19. The panga which was seized from Juma Mgaya was m arked as D13. The exhibits were p u t in a container and sealed before being sent to the Government Chem ist Office. I f given time to refresh I can name a il the exhibits. The above being the case; and having considered the gist of A/Insp Simkoko's testimonies, I find the discrepancy to be minor and so did not affect his credibility. This position is supported by a decision of the Court of Appeal of Tanzania in the case of Mathias Bundala Vs Republic, Criminal Appeal No. 62 of 2004 (unreported) which reaffirmed a similar position reached in Kiroiyann Ole Suyan Vs Republic, Criminal Appeal No. 114 of 1994 (unreported) where unequivocally the following was observed: 88 When a witness gives evidence after a long interval, say six years, follow ing the event, allowance ought to be given fo r m inor discrepancies. In the case a t hand the witnesses were testifying after a lapse o f nine years. Such expected trifling contradictions should be appropriately ignored. Another item alleged to have been stolen from the scene, was a white shirt (Exhibit P31), black trousers and a light blue track suit (Exhibit P33). These items were identified by Maximillian Robert (PW18) to be the properties of Joseph Asopheret who died in the incident. Exhibits P29 (a mattress make Tan foam), P31 (a white shirt with a word paradigm), P33 (a black trouser and light blue track suit) which belong to victims of the incident were recovered from 3rd and 7th accused persons. Except for exhibit P31, there was no objection on the admissibility of these exhibits. The law is settled that where a person is found in possession of a property recently stolen or unlawfully obtained, he is presumed to have committed the offence connected with person or place where from the property was obtained. For this doctrine of recent possession to apply as a basis of conviction, it must be proved, firstly; that the property was 89 found with the accused, secondly; that the property is positively proved to be the property of the victim, thirdly, that the property was recently stolen from the victim, and lastly, that the stolen thing constitutes the subject of the charge against the accused. See Mustapha Ramadhani versus Republic, Criminal Appeal No. 242 of 2008 (unreported) cited with approval in the case of Mohamed Hassani @ Said Vs Republic, Criminal Appeal No. 410 (unreported). To prove the exhibits P29, P31 and P33 were recovered from 3rd and 7th accused persons, the prosecution relied on evidence of ACP Nelson Sumari (PW7) and SSP Kibona (PW9) who tendered seizure certificates. While admissibility of exhibit P28 (a seizure certificate in respect of the items recovered from the 3rd accused person) was objected, there was no objection in respect of admissibility of exhibits P30 and P32 (seizure certificates in respect of a white shirt and a black trouser, allegedly owned by the late Joseph Asopheret and recovered from the 7th accused person). There was either no explanations on how the 3fd and 7th accused persons came into possession of these items, In criminal law, such unexplained possession of the properties allegedly stolen from the scene of crime by the accused persons, may be a presumptive evidence against them not only on the charge of stealing or receiving with guilty 90 knowledge, but also of any serious crime like murder, where there are reasons to believe that such offences were committed in the same transaction. I find support in this stance from the Court of Appeal decision in Juma Marwa Vs Republic, Criminal Appeal No. 71 of 2001 (unreported) where the following were stated: ' The doctrine o f recent possession provides that if a person is found in possession o f property recently stolen and gives no reasonable explanation as to how he had come by the same, the court m ay legitim ately presum e that he is a th ie f or a quilt receiver' Similar position was also reached by the Court of Appeal of Tanzania in Seif Salum Vs Republic/ Criminal Appeal No. 150 of 2008 (unreported). The Court thus stated: '.....The appellant failed to explain to the court how he acquired the possession o f the stolen goods. Under Crim inal Law the unexplained possession by an accused person o f the fruits o f crim e recently it has been com m itted is presum ptive evidence against the accused not only on the charge o f the theft or receiving with g uilty knowledge, but also o f any aggravated crim e like murder, when there is reason fo r 91 concluding that such aggravated and m inor crim es were com m itted in the same transaction' As said, these exhibits were identified by Maxlmillian Robert (PW18) and Maria Kawawa Kinguye (PW22). PW18 for example was so specific on how he identified exhibit P31. In his own words, he stated the following when identifying a white shirt recovered from the 7th accused person: When we reached to centra! police station Muscma, I was shown several m ale and fem ale clothes. I managed to identify a white sh irt with short sleeves which belonged to Joseph Asopheret. I identified it because on the pocket there was a word "paradigm". The sh irt had also som e two sm all holes (vitundu) which were sustained when Asopheret was ironing it using a charcoal iron. I f shown today I can s till identify it through the same m arks which are ’'paradigm '' word and the two sm all burnt holes. I had an opportunity to see exhibit P31 which contains the said shirt. Apart from the words "paradigm" which could be seen by any person, the fact that PW18 disclosed those two small burnt holes in the shirt which cannot be easily seen unless shown by a person who actually knew the same, persuaded me to believe that indeed, he was a witness 92 of truth and that he knew well the said shirt. Similarly, PW22 gave detailed explanations on how she identified exhibit P29. For easy of reference, I have reproduced an extract from her testimony as hereunder: The m attress had a blue cover make Tan foam Arusha. It had pink flowers. By that tim e the m attress had around 7 years a t home because I rem em ber the same was purchased before M eliciana was born and Meliciana died as a result o f the assault\ when she was five (5) years old. Nyanyama Kawawa being so young used to sleep with m y parents. I knew that m attress because I used to make my parents bed (nilikuwa natumwa na mama kukitandika kitanda) som etim es when m y parents used to go to farm, they left me with Nyanyama who som etim e urinated in the bed so I used to take the m attress out to dry the sam e in the sun. From the evidence above, I now hold that the 3rd and 7th accused persons were found with exhibit P29 and P31, items believed to have been stolen after the killings at Buhare. In that regard, they were expected to give reasonable explanation on how they came into the possession of those items. See Maruzuku Hamisi Vs Republic [1997] TLR 1. 93 Now let me consider the accused person's defence of alibi. It is the law that once proved that a person alleged to have committed the offence was not at the scene at the time of commission of the offense, the defence of alibi may exonerate an accused person from criminal liability. However, for such a defence to be invoked, whoever intends to rely on it must give notice of his intention to rely on that defence either before the hearing of the case or after the closure of the prosecution's case. Besides raising a defence of aiibi, neither of the accused persons issued a notice of alibi. The practice has been that the court would usually consider that defence even if the same was raised without notice. In Marwa Wangiti Mwita and Another Vs Republic, [2002] TLR 39 the Court of Appeal of Tanzania stated the following in respect of alibi raised without notice: The absence o f notice required by section 194 o f the Crim inal Procedure A ct o f 1985 does not m andate or authorise the ought right rejection o f an a lib i though it may affect the weight to be placed on it. Therefore, where a defence of alibi is raised after prosecution case has been closed and without any prior notice that such defence would be 94 relied upon as in the instant case, a court should not treat the said defence like it was never made. It should instead, take cognizance of the defence and may then exercise its discretion to accord no weight to the defence. See Mwita Mhere and Ibrahim Mhere Vs Republic [2005] TLR 107. As noted, apart from not issuing notice of intention to rely on the defence of alibi, the accused persons gave a general account of where they were, on the material night. The 2nd accused person for example said having returned from his business on 15/2/2010, he remained at his house at Nyegina village till his arrest on 16/2/2010. The 3rd accused person claimed that he was at his house located at Nyasura village and he only heard the news of the killings through Victoria Radio on 15/2/2010. The 4th and 5th accused persons were at Buruma village while the 7th accused person was at Bunda. I have examined the entire evidence as tendered by the defence, indeed as observed, the defence of the alibi raised, has no evidential back up. Without shifting the burden of proof to the defence, it is the law that whoever intends to rely on alibi, must first issue notice and support his such a defence through evidence which can raise reasonable doubt. 95 Failure to do so entitles the court to accord no weight to it. Taking into consideration of the nature and gravity of the offence charged in this case, it was expected that, if the alibi contains any sort of truth in it, the accused persons would bring evidence to support the same. In Ally Salehe Msutu Vs Republic [1980] TRL 1, the Court of Appeal observed the following in a similar set of facts: We are o f course aware that as a m atter o f law an accused person is not required to prove his A lib i and it is enough for him if the A lib i raises a reasonable doubt We are however, o f the view that the unknown and untested statem ent made by the appellant in his defence and unsupported as it was by any other evidence which in this case could easily have been obtained if the A lib i had any trace o f truth, has no basis in fact but is a fallacy o f the appellant. Therefore, being raised without notice and in absence of supporting evidence, such a defence was incomplete. In Makala Kiula Vs Republic Criminal Appeal No. 2 of 1983 (unreported), the Court of Appeal of Tanzania had this to say in respect of an incomplete alibi. 96 'I f a person charged with a serious offence alleges that a t the tim e when it was committed, he was in some other place where he is w ell known and yet he makes no effort to prove that fact, which if true, could easily be proved, the court m ust necessarily attach little weight to his allegation s' To conclude on this issue, I would like to hire the wisdom of the apex court of our land in Ally Amsi Vs Republic, Criminal Appeal No. 117 of 1991 CAT (unreported), where a raised alibi was found to be false, it was observed that such attempt to mislead a court through a false alibi, may jeopardise the accused's position for he or she might be considered a liar without however exonerating the prosecution from its duty of proving the case beyond reasonable doubt. The Court thus stated: "... O rdinarily when an accused puts up an a lib i which is dem onstrated to be palpably false and it is established that he was in fact a t the place and tim e the alleged crim e was committed, his task can be very d ifficult and his position unenviable. For one thing he w ill have been proved to be a lia r who tried to m islead the court into believing that he was not around so could have perpetrated the alleged crime. For another he 97 w ill have denied him self the opportunity o f raising other possible defences such as provocation or s e lf defence which m ight be true or which m ight have at least raised som e doubt In the event I find the defence of alibi raised by 2nd 3rd, 4th, 5th and 7th accused persons, of no evidential weight and that the same has failed to shake the prosecution's case. The above being determined, it is obvious that apart from the accused person's confessions, evidence led by the prosecution in this case was purely circumstantial. An established principle of law is that circumstantial evidence can prove the case if taken together, the same points irresistibly to the accused that he or she is the one who caused the death of the deceased person. As it was stated in Republic Vs Kerstin Cameron [2003] TLR 84, to ground a conviction on circumstantial evidence, the following must be established: (a) That the prosecution evidence m ust be incapable o f more than one interpretation; (b) The facts from which an inference o f g u ilt or adverse to the accused is sought to be drawn, m ust be proved beyond reasonable doubt and 98 m ust clearly be connected with the facts from which the inference is to be drawn or inferred; (c) In m urder cases, evidence should be cogent and com pelling as to convince a jury, judge or court that upon no rational hypothesis other than m urder can, the facts be accounted for. In the case at hand, the 2nd accused person was arrested after being tracked by a police dog. Upon being interrogated, he confessed and named among others, the 1st accused person who when arrested and searched was found with sword (exhibit P26). That sword according to the forensic DNA report, (exhibit P44) had blood link with victims in Kawawa Kinguye's house. The report shows the blood in the sword was from a male victim in a room which was used by Kawawa Kinguye, Bhuki Kawawa Kinguye and Nyanyama Kawawa. According to exhibit PI, P2 and P3 (Postmortem Reports) the only male victim in that room was Kawawa Kinguye. Evidence from exhibit P43 (the 6th accused person's confession) shows as he was assaulting Kawawa Kinguye, the 1st accused person was not satisfied with the way he was assaulting him and so he was told to let him deal with the said male victim. Below is an extract from the 6th accused person's confession statement as he let the 1st accused deal with Kawawa Kinguye. 99 .... m im i niiim kata baba panga moja na m im i ndiye niliyekuwa wa kwanza kumkata sehem u za jira n i na bega karibu na shingo na hapo ndipo Jum a Mgaya alinam bia kwamba unafanya kazi ya kutegea hebu pisha m im i nim shughuiikie aone. Na hapo ndipo nilim pisha na yeye aiiendeiea kumkata yule mwanaume. The above pieces of evidence lead to one conclusion that the male DNA blood found in the 1st accused's sword was that of Kawawa Kinguye who was killed in the incident of this case. The 1st accused person also incriminated the 3rd accused who upon being searched was found with a mattress (exhibit P29) which was identified by Maria Kawawa (PW22) to be the one which was used by her parents. The mattress had also DNA traces of a male victim in the same room used by Kawawa Kinguye, his wife Bhuki and their daughter Nyanyama. It can therefore be concluded that the mattress which was found with the 3rd accused person belonged to the late Kawawa Kinguye and had his blood DNA traces. The 7th accused person was also found with among other things a white shirt with a mark "paradigm" (exhibit 31), and a pair of black trousers 100 (exhibit P33), These clothes were identified by Maximillian Robert (PW18) to be school uniforms which were used by Joseph Asopheret one of the victims who perished on the material night. Although the 7th accused person objected the admissibility of exhibit P33# he however, did not object admissibility of a certificate of seizure in respect of a search (exhibit 32) which was witnessed by Msafiri Magendi (PW13) and Wilhelimina Aron Buriro (PW19). That means he conceded that the search which led to recovery of the school uniforms (exhibit P33) was conducted against him as testified by SSP Kibona (PW9). The above evidence points a guilty finger to the 1st, 2nd, 3rd and 7th accused persons. I believed that such inculpatory facts are incompatible with the innocence of these accused persons and they are incapable of explanation upon any other reasonable hypothesis than that of their guilty. The above notwithstanding, it is clear from the prosecution's case, that the only evidence against the 4th, 8th and 9th accused persons is that of incriminating confession statements from the 3rd, 5th, 6th and 7th accused persons. In exhibits P35 (extra judicial statements of the 6th accused person) P36 (extra judicial statements of the 7th accused person), P38, 101 (cautioned statements of the 7th accused person) and P41 (cautioned statements of the 3rd accused person; the 4th, 8th and 9th accused persons, are mentioned to be among those who planned and eventually participated in killing of the victims of this case. While the 9th accused person was also named in exhibit P43 (cautioned statements of the 6th accused person), the 4th and 8th accused person's names were revealed in exhibit P37 (cautioned statements of the 5th accused person) and P43 (cautioned statements of the 6th accused person). In terms of section 33 (1) and (2) of the Evidence Act Cap 6 RE 2019, incriminating statements by co accused as against another, can be considered. However, no conviction can be legally grounded basing solely on such confessions. See MT 38870 PTE Rajab Mohd and Others Vs Republic Criminal Appeal No. 141 of 1992 Court of Appeal of Tanzania, (unreported). The law requires such statements to be competently corroborated to warrant a conviction against the incriminated person and as such, a confession by a co-accused person can only be used as lending assurance to other evidence against the co­ accused. See Ezera Kyabanamaizi and Others Vs Republic, (1962) 1 EA 309 and Gopa.Vs Republic [1993] 20 EACA 318. 102 Underlining the need to such evidence being corroborated, this court (Kisanga, J as he then was) stated the following in Selemani Rashid and others Vs Republic [1981] TRL 252. ..... I see no good reason fo r departing from the rule o f practice as laid down by the Court o f Appeal because, I see that the rule does provide an im portant safeguard against possibilities o f convicting the innocent Thus, fo r exam ple an accused person who has com m itted an offence m ay take a true confession o f that offence. That is w ell and good and he m ay properly be punished fo r it. But he may fo r different m otives which may not be apparent, decide to im plicate an innocent person. He may do so, fo r instance, out o f an old grudge o r some m isunderstanding o r purely out o f m alice sim ply in order to g e t a companion in sufferance. Such possibilities could not be ruled out and should it happen then there be no doubt that it amounts to a serious m iscarriage o f justice. As prior noted, in this case the ladies and gentleman assessors had a consensus opinion that there was no evidence against the 4th accused person. They however parted ways on the fate of the 8th and 9th accused persons. Whereas as the first assessor believed that such 103 evidence proved as well the guilty of the 8,h and 9th accused person, the second assessor had the opposite conclusion and therefore opined that there was no strong evidence against the 8th and 9th accused persons. On her part, the third assessor's opinion was that the prosecution side has failed to prove the charges of murder against the 9th accused person but found the 8th accused person guilty as charged. I share the views of the ladies and gentleman assessors in respect of the 4th accused person. I also share the same opinion with the second and third assessors in respect of the 9th accused person. However, I differ with the conclusion of first and third assessors on the fate of the 8th accused person because there is no iota of evidence from the prosecution side which corroborates the incriminating statements against the 8th and 9th accused persons. I believe no matter how true the incriminating statements may be, the absence of other pieces of evidence that support it, leaves such co accused's incriminating statements, unreliable. Therefore, having thoroughly tested the prosecution evidence and the cited authorities, I am of the settled view that incriminating confessions in the circumstances of this case, incapable of leading to a conviction on charges of murder as against the 104 4th, 8th and 9th accused persons and I acquit them accordingly from the said charges. On the other hand, I find the 1st, 2nd, 3rd, and 7th accused person's confessions through exhibits; P36, P38, P40, P41, P42, to have been sufficiently corroborated by the strong circumstantial and expert evidence from forensic DNA profiling findings and tracker dog which I have discussed at length above. In the same vein, being so comprehensive and detailed, I find the contents of the confessions of the 5th and 6th accused persons (Exhibits P35, P37 and P43) which explains in clarity the initial stages of the plan to kill Kawawa Kinguye, the role played by each of the assailants in executing the said plan and consequently leading to the killings of 17 people, to be true account of what happened at Mgaranjabo area on the night of 16th February, 2010. As it was in Stephen Jason and 2 Others Vs Republic, (Supra) I am certain, therefore, that such confession statements could not be given by a person who was not either a part to the plan or had knowledge of it. All said and done, I am satisfied that the 1st, 2nd, 3rd, 5th, 6th and 7th accused persons, are responsible for the killing of Kawawa Kinguye 105 Kinguye, Bhuki Kawawa Kinguye, Nyanyama Kawawa Kinguye, Meliciana Kawawa Kinguye, Juliana Kawawa Kinguye, Kinguye s/o Kawawa Kinguye, Nyarukende Kinguye, Magdalena Kawawa Kinguye, Nyasimbu Moris, Mgaya Moris, Irene Moris, Magret Moris, Maheri Moris, Nyangeta Moris Mdui, Umbera Mgaya, Joseph Asopheret and Dorica Mugaya, the conclusion which was shared by the ladies and gentleman assessors. Having found the 1st, 2nd, 3rd, 5th, 6,h and 7th accused person responsible for the unlawful killing of Kawawa Kinguye and 16 others as listed in the information, the last question for my determination is whether the killings were premeditated (malice aforethought). The law in relation to what is entailed by malice aforethought is settled that the same can be inferred from a combination of several aspects basing on the conduct and acts or omission of the accused persons either prior to, during and or after the incident. Malice aforethought may therefore also be established with evidence on the knowledge that the act or omission could probably cause death or grievous harm to another person and or mere evidence on intention to commit an offense punishable with a penalty graver than imprisonment for three years. 106 In the instant case, the victims were assaulted with machetes and swords and consequently all 17 people, died because of severe loss of blood (haemorrhage) following multiple cut wounds in different sensitive parts of their bodies. Both exhibits Pl-17 (Report on Postmortem Examinations) and exhibit P22 which contains 34 still photos taken by A/Insp Simkoko (PW10), show the extent of the wounds inflicted to the deceaseds. Such deep cut wounds which extend from the heads, necks and posterior chests of the victims, is an indication of nothing but an excessive force applied when inflicting the same. In my view, whoever inflicted these kinds of injuries, intended to terminate the lives of these people. In Enock Kipala Vs Republic, Criminal Appeal No. 150 of 1994 the Court of Appeal of Tanzania (unreported) observed the following in relation to malice aforethought: ............... usually, an attacker w ill not declare h is intention to cause death or grievous harm. W hether or not he had that intention m ust be ascertain from various factors, including the follow ing; (1) the type and size o f the weapon, if any used in the attack; (2) the am ount o f force applied in the assault; (3) the part o f parts o f the body the blow were directed a t or inflicted on; (4) the num ber o f blows, although one blow may, depending upon the facts o f a particular 107 case, be sufficient fo r this purpose; (5) the kind o f injuries inflicted; (6) the attackers utterances, if any, made before, during or after the killing; and (7) the conduct o f the attacker before and after the killing. Malice aforethought can also be inferred where there is a proof that death was a natural consequence of the act and that the accused person foresaw It as a natural consequence of the same. See Nanjonjo Harriet and Another Vs Uganda, Criminal Appeal No. 24 of 2002 [2007] UGSC 10 available at www.africanlii.org. As such and with all that I have endeavoured to say, I believe the tendered evidence, has satisfactorily proved the question of malice aforethought against the 1st, 2nd, 3rd, 5th, 6th and 7th accused persons. Therefore, in agreement with the ladies and gentleman assessors' opinion, I hold that, these accused persons definitely intended to kill the victims when assaulted them with lethal weapons. In the final result and for the foregoing reasons, like it was for all three ladies and gentleman assessors, I am satisfied that the prosecution side has proved its case to the required standards and on my part no reasonable doubts exist as to the guilty of the accused persons. I 108 therefore find the accused person one Juma Mugaya @ Mugaya Jumanne Masemere, Aioyce Nyabasi Nyakumu @ Diwani, Nyakangara Wambura Biraso @ James Mgaya Magigi @ Nyakangara Magigi, Nyakangala Masemere Mgaya @ Robert Boniface @ Robert Boniface Magigi, Sadock Alphonce Ikaka @ Nyabugimbi Nyakumu@ Sadock Alphonce and Kumbata Buruai @ Bwire Alex George, guilty of unlawful killing of Kawawa Kinguye Kinguye, Bhuki Kawawa Kinguye, Nyanyama Kawawa Kinguye, Meliciana Kawawa Kinguye, Juliana Kawawa Kinguye, Kinguye Kawawa Kinguye, Nyarukende Kinguye, Magdalena Kawawa Kinguye, Nyasimbu Moris, Mgaya Moris, Irene Moris, Magret Moris, Maheri Moris, Nyangeta Moris Mdui, Umbera Mgaya, Joseph Asopheret and Dorica Mugaya and consequently, I hereby convict them for the offence of Murder contrary to section 196 and 197 of the Penal Code in respect of 17 counts as charged. DATED at MUSOMA this 15th January, 2021 109 SENTENCE Having considered what has been submitted to me during sentencing process by both Mr, Mayenga the learned Senior State Attorney and Mr. Ostack Mligo, the leading counsel for the defence, it is obvious that the law in this country provides death by hanging as the only punishment for murder. Therefore, in compliance with sections 26 (1) and 197 of the Penal Code Cap 16 RE 2002, the convicts one Juma Mugaya @ Mugaya Jumanne Masemere, Aloyce Nyabasi Nyakumu @ Diwani, Nyakangara Wambura Biraso @ James Mgaya Magigi @ Nyakangara Magigi, Nyakangala Masemere Mgaya @ Robert Boniface @ Robert Boniface Magigi, Sadock Alphonce Ikaka @ Nyabugimbi Nyakumu@ Sadock Alphonce and Kumbata Buruai @ Bwire Alex George, are hereby sentenced to suffer death by hanging. It is so ordered. no