Crimina Session No

THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA MURDER NO. 000007442 OF 2024 REPUBLIC .............................. COMPLAINANT / APPELLANT / APPLICANT

VERSUS RIZIKI SAMSON WILLIAM .............................. RESPONDENT / DEFENDANT

RULING NKWABI, J 11 & 11/03/2025 The accused person RIZIKI S/O SAMSON WILLIAM was arraigned before this Court for murder offence contrary to section 196 and 197 of the Penal Code, Cap 16 R.E.

2022. It is alleged that he murdered Frank s/o Naumu on 11/05/2019. The accused person pleaded not guilty to the charge when he was called upon to plea to the charge. When the hearing of the case commenced, the prosecution was represented by Mr. Nestory Kuyula, Ms. Rehema Mpozemenya and Mr. Joel Kimomwe, all learned State Attorneys. The accused person was present in person and represented by Mr. Sylvester Damas Sogomba, learned counsel. The prosecution brought four witnesses witnesses and tendered three exhibits in an attempt to prove the charge against the accused person. Then it closed its case and let it to the court to decide whether the accused person has a case to answer or not. However, to prove the charge against the accused person, the prosecution is heavily relying on exhibit P.3, the witness statement of a witness who did not come to testify. That is because PW.1 BONIFACE EDWARD KAHULANANGA, MEDICAL DOCTOR only tendered the postmortem report of the deceased. He did not witness the accused commit the offence. PW.2, MG 573172 MWESIMBA, MILITIAMAN, only arrested the accused person. He did not witness the accused person commit the offence. PW.3 E. 8152 D/SSGT ELIAS, only investigated the case while PW.4 only recorded exhibit P.3. There is no evidence to convict him if he keeps quiet. I proceed to acquit the accused person. The affidavit of the Court process serve is

insufficient. It does not state that the father of the deceased died so as to assist to locate the witness who is unavailable and it appear as the one who was sworn did not serve the same because the affidavit is in reported form. No one can be made responsible if there is falsehood in the affidavit of the person who purports to serve the summons to the intended witness. In the circumstances, exhibit P. 3 has very little evidential value, Page. 1 Hon... JOHN NKWABI thus it cannot be used to convict the accused person if he chooses to keep quiet. I find solace in decision in DPP v. O. Monyancha [1985] T.L.R. HC where this Court held that: “The correct interpretation of s. 34 (B) (2) of the Evidence Act, 1967, in that in order for a statement to be admissible under that section, all the conditions laid down in all the paragraphs, that is from (a) to (f), of the subsection must be met. As the conditions laid down in some of the paragraphs were not met in this case, the trial magistrate correctly rejected the admission of the two statements.” See also MT. 5659 PTE Alphonce Mathias v. Republic, Criminal Appeal No. 127 of 1990 (C.A.T.) (Unreported). To reach at my conclusion, I am also guided by Republic v. Makuzi Zaid & Another [1969] H.C.D. No. 249, Georges C.J., as he then was, quoted with approval Bamaulal P. Bhat v. Republic [1957] EA 332 where it was held that: “The case to be

prima facie case must be such that a reasonable tribunal properly directing its mind to the law and the evidence can convict if no explanation is offered by the defence.” Finally, I rule that the prosecution has failed to establish a prima facie case against the accused person one RIZIKI S/O SAMSON WILLIAM and is accordingly acquitted under section 293(1) of the Criminal Procedure Act, Cap. 20 R.E.

2022. It is so ordered. Dated at KIGOMA this 11th of March 2025 . J. NKWABI

JUDGE OF THE HIGH COURT Page. 2 Hon... JOHN NKWABI