Kegokora Jackson Kegokora vs Republic (Criminal Appeal No. 57 of 2021) [2024] TZCA 1204 (6 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA ( CORAM: WAMBALI J.A.. MAIGE, J.A. And RUMANYIKA, J.A.) CRIMINAL APPEAL NO. 57 OF 2021 KEGOKORA JACKSON KEGO KO RA..............................................APPELLANT VERSUS THE REPU BLIC.......................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Musoma) (Kisanva, J.) dated the 11th day of December, 2020 in Criminal Sessions Case No. 38 of 2020 JUDGMENT OF THE COURT 26th November & 6th December, 2024 MAIGE, J.A.: In the High Court of Tanzania at Musoma (the trial court), the appellant was, contrary to sections 196 and 197 of the Penal Code, charged with the murder of Nyemwa s/o Mchochi Matiko (the deceased) which occurred on the 1st day of June, 2018 (the material date). He pleaded not guilty to the charge and hence a trial was conducted with the prosecution parading six witnesses and three documentary exhibits. i

1 The facts on the basis of which the appellant was charged is not difficult to narrate. On the material date, the appellant and deceased together with some other persons, were at a bar drinking local brew. In the process, a quarrel broke out between the appellant and the deceased which culminated in a fight between them. Muhochi Matiko Muhochi (PW1) who was about 15 meters away, went at the scene of the crime and successfully mediated them. At that time, the appellant left the place and later on, he was seen by PW1 heading to the scene of the crime while holding a bow, four arrows and panga. Soon thereafter, PW1 heard some people crying and went to the scene of the crime where he met with the appellant at the door trying to escape. When he attempted to get hold of him, he was stabbed with a panga on the shoulder, left hand and left ear and the appellant managed to escape. The appellant was arrested by the villagers in the same vicinity as he was trying to escape. The incident was reported to the police and D/C Shaban (PW5) visited the scene of the crime and found the deceased lying down with cut wounds on the head and buttocks. He took him to the hospital where he was examined by Albert Kasanga Mnalimi (PW4) and found, as per exhibit PEI, dead. The appellant was rearrested at the village 2

office by PW5 and taken to the police station and, subsequently arraigned at the trial court in connection to the offence under scrutiny. Julius Keng'ombe who unfortunately did not testify in court, was among the persons who allegedly witnessed the appellant committing the murder. His witness statement, however, was admitted into evidence purportedly under section 34B (2) of the Evidence Act and marked, PE3. As we shall see, the validity or otherwise of the admission of such evidence is hotly debatable. In his defense, the appellant denied committing the charged offence claiming that he was , when the incident was taking place, in another bar. That, he went at the scene of the crime where he was arrested after he had heard an alarm being raised. He complained that he was linked with the offence on mere suspicion because of the prior fight between him and the deceased. The trial court having considered the evidence on its entirety, concluded that the prosecution had proved the case beyond reasonable doubt. Therefore, it convicted the appellant with the offence of murder and sentenced him to death by hanging. Aggrieved, the appellant has instituted the current appeal. 3

In the substantive memorandum of appeal (the substantive memorandum) which was lodged on 9th August, 2021, the appellant raised eight grounds which can be summarized as follows: One, the appellant was wrongly convicted based on weaknesses in his defence; Two, the prosecution evidence was contradictory; Three, the trial court relied on the uncorroborated evidence of witnesses with interest to serve; Four, the requirement under section of section 14(2) of the Penal Code was not observed by the trial court; Five, the appellant was not correctly identified; Six, the trial court convicted the appellant without drawing adverse inference for failure of the prosecution to call material witnesses; Seven, there was improper succession of trial judges; and Eight, the case was not proved beyond reasonable doubt. Subsequently, the appellant lodged a supplementary memorandum of appeal (the supplementary memorandum) containing five grounds which can be summarized as follows: First, the trial court wrongly placed reliance on exhibit P3 which was admitted in contravention of section 34B (2) (d) and (e) of the Evidence Act; Second, the trial court wrongly relied on the testimonial evidence of PW4 whose substance was not read during committal proceedings as the law requires; Third, the trial court did not consider failure of the

prosecution to call the witness who allegedly arrested the appellant; Fourth, the trial court did not take into account the unreasonable failure of the prosecution to call a material witness one Robert s/o Chacha; and Fifth, the trial court relied on the oral evidence of PW1 and the documentary evidence in exhibit P3 which was incredible and improbable. Notably, on 24th May, 2023, the appellant lodged a written submission wherein he abandoned the 7th ground in the substantive memorandum and the 2n d ground in the supplementary memorandum. Eventually, he clustered the grounds of appeal in both the two memoranda into four complaints and submitted in respect of each complaint in details. The first complaint which consolidated ground numbers 1, 2, 3 and 5 in the substantive memorandum and grounds numbers 1 and 5 in the supplementary memorandum, was that the appellant was convicted based on improbable or implausible evidence of PW1 and exhibit P3. The second complaint which arose from the 6th ground in the substantive memorandum and 3rd and 4th grounds in the supplementary memorandum, was that the appellant was convicted on uncorroborated evidence. The 3rd complaint which was gathered from the 4th ground in the substantive memorandum is about non 5

compliance by the trial court of section 14 (2) of the Penal Code. The 4th complaint which was based on the 8th ground in the substantive memorandum was that the case was not proved beyond reasonable doubts. Again, on 17th April, 2024, the appellant filed, purportedly under rule 81(1) of the Tanzania Court of Appeal Rules, 2009, a statement in which he prayed for leave to argue two further grounds namely; the appellant was convicted based on the statement in exhibit P3 purporting to be of an uncalled witness which differed with the statement which was used during committal proceedings; and that, the appellant's defence of alib i was wrongly rejected for want of notice and failure of the appellant to call a witness in advance thereto. There was, perhaps tentative, a comprehensive submission in support of those points. In the conduct of the appeal, the appellant was represented by Mr. Daud Mahemba, learned advocate while the respondent Republic was represented by Ms. Mwajabu Tengeneza, learned Principal State Attorney who teamed up with Ms. Happiness Machage, learned State Attorney. In his submissions, Mr. Mahemba having adopted the written submissions filed by the appellant, he consolidated the grounds in both 6

the two memoranda and argued them under the proposition that the case against the appellant was not proved beyond reasonable doubt. In the same flow, the respondent, through Ms. Tengeneza, submitted in opposition to the appeal. Despite the abandonment of the 2n d ground in the supplementary memorandum, we, in the course of hearing, asked the counsel to address us if the testimony of PW4 was in compliance with section 289 (1) of the Criminal Procedure Act (the CPA.) We shall make reference to the substance of the rival submissions in the course of addressing the issues arising therefrom. In determining the appeal, and before specifically addressing ourselves with the general question as to whether or not the prosecution proved the case beyond reasonable doubt, we shall also consider the following three pertinent issues. One, whether the evidence of PW4 was properly received and relied upon. Two, whether the witness statement in exhibit PE3 was admitted and relied upon in due compliance with the law. Three, whether the trial court was wrong in not drawing an adverse inference against the prosecution for failure to call material witnesses. It would appear apparent from the record that, whether the deceased died naturally has never been in dispute. Equally indisputable

is the fact in the evidence of PW1 that, soon before the incident, he mediated a fight between the appellant and the deceased at the scene of the crime. In addition, parties are not in dispute that, a meanwhile after the incident, the appellant was arrested in the same vicinity in connection to the death of the deceased. The only contention which we have to resolve is whether it was the appellant and no one else who murdered the deceased. We shall start our discussion with the first issue as to whether or not the testimonial evidence of PW4 was properly admitted. The gist of the irregularity, the existence of which was conceded by both the counsel was that, since the substance of his evidence was not read and explained to the appellant insofar as he was not among the intended witnesses listed during committal proceedings, PW4 was incompetent and use of his evidence without notice was violative of section 289(1) of the CPA. We were, therefore, advised to exclude the evidence of PW4 from the record. Under section 246 (2) and (3) CPA, the committal court is obliged to read and explain or cause to be read and explained, the substance of the evidence of the intended witnesses. The equity behind the requirement, as we held in Sita James v. R (Criminal Appeal No. 469

of 2020) [2024] TZCA 25 (12 February 2024; TANZLII) is to enable the accused to understand the nature of the prosecution evidence so as to prepare a sound and meaningful defense. In terms of section 289(1), (2) and (3) of the CPA, an intended witness whose statement was not read during committal proceedings is precluded from testifying during trial unless the trial court is satisfied that the prosecution has issued a reasonable written notice to the defense. See for instance, Mawazo Mohamed Nyoni @Pengo & Others v. R (Criminal Appeal No. 184 of 2018) [2021] TZCA 483 (16 September 2021; TANZLII), Hamisi Meure v. R [1993] TLR 213 and Sita James v. R (supra). In the circumstances, therefore, we answer the first issue against the respondent Republic and hold that PW4 was an incompetent witness. As a result, his evidence is excluded from the record. We proceed with the second issue as to the trial court's reliance on the evidence of a person who was not called as a witness. Indisputably, the conviction of the appellant was partly based on the witness statement of Julius Keng'ombe (exhibit PE3) which was recorded by PW6. It was challenged on two accounts. First, it was admitted without complying with the conditions under section 34B (2) 9

of the Evidence Act. Second, it was not read and explained to the appellant during committal proceedings. The statement, it was submitted, was received into evidence just a day after the prayer to issue a notice had been granted. With that, it was submitted, it cannot be said that the notice requirement under the section just mentioned was complied. Citing the case of Magige Marwa Mwita and Others v. R (Criminal Appeal No. 621 of 2021) [2024] TZCA 994 (28 October 2024, TANZLII), it was submitted that, compliance of all the conditions under section 34B (2) of the Evidence Act was a condition precedent for admissibility of such a statement. The mere fact that the statement was received without objection, it was submitted, did not render the requirement irrelevant. We were, therefore, urged to exclude exhibit PE3 from the record. Yet on the same point, Mr. Mahemba submitted, with all forces that, while it is a mandatory requirement that evidence whose substance was not read and explained during committal proceedings cannot be admitted into evidence unless the notice requirement under section 289 (1), (2) and (3) of CPA is duly observed, exhibit PE3 was admitted without such requirement being observed despite that it was not read and explained during committal proceedings. 10

While in agreement that a statement of Julius Keng'ombe was read and explained to the appellant during committal proceedings, it was Mr. Mahemba's contention that exhibit PE3 is substantially different from the document which was used during committal proceedings. He assigned two reasons to substantiate his contention. One, while in exhibit PE3 the residence of the maker of the statement is described as " Kitongoji cha Nyisense katika K ijiji cha Kenokwe" in the statement used during committal proceedings, it is described as " K ijiji cha Konokwe kitongoji cha N y is e n s e Two, while PW6's declaration in exhibit PE3 PW6 was that, "nimeandika maeiezo ya Julius s/o KENG'OMBE kwa umakini chini ya K/F 10(3) cha CPA cap. 20 RE 2002 na nimemsomea na kuiidhika kuwa n i sahihi" in the document used during committal proceedings, his declaration was that, " nathibitisha kuandika maeiezo ya JULIUS s/o KENG'OMBE kwa usahihi na uaminifu chini ya K/F 10(3) CPA 198 (R.E. 2 0 0 2 He submitted, therefore that, since it is evident that two distinct statements were recorded from PW6, it cannot be said with certainty that, exhibit PE3 was read and explained to the appellant during committal proceedings. In his conclusion, therefore, since the requirement under section 289 (1) of the CPA was not, as far as the said exhibit is concerned, observed, admission of exhibit PE3 was bad in law. l i

In rebuttal, Ms. Tengeneza submitted that, in as long as the exhibit was received without objection, there was no need for the trial court to await until the 10 days-notice expires. After all, she submitted, when the appellant's counsel was asked to comment on whether the notice should be issued, he remarked at page 24 of the record of appeal that, "for interest o f justice, we have no objection to the prayers made by the prosecution. Though she could not recall the citation of the decision in support of her contention, with our leave, she supplied us with the case of Chukwudi Dennis Okechukwu & Others v. R (Criminal Appeal No. 507 of 2015) [2018] TZCA 255 (17 September 2018, TANZLII). She submitted further that, the production of the document before expiry of ten days from the notice did not prejudice the appellant because the same document was read and explained to him during committal proceedings. As shown above, the admissibility of exhibit PE3 was essentially doubted for not observing the requirement under section 34B(2) (d) and (e) of the Evidence Act according to which, a statement of a person who cannot be called as a witness can be admitted in lieu of direct oral evidence on the conditions, among others: "(d) if, before the hearing at which the statem ent is to be tendered in evidence, a copy o f the 12

statem ent is se rv e d b y or on behalf o f the party proposing to tender is served, by or on behalf o f the party proposing to tender it\ on each o f the other parties to the proceedings. "(e) if, none o f the other parties, within ten days from the service o f the copy o f the statement, serves a notice on the party proposing or objecting to the statem ent being so tendered in evidence." To comply with the above conditions, we said in Omary Athumani @ Magari & Another v. R (Criminal Appeal No. 398 of 2019) [2021] TZCA 364 (23 July 2021, TANZLII) that; "a copy o f the statem ent should have been served on the adverse party ten days before the date it is intended to be tendered into evidence and that; there should be no notice o f objection from the adverse party." The ten days' period, we held in Magige Marwa Mwita & Others v. R (supra), starts running from the date of the notice to produce the statement. As per page 24 of the record of appeal, the prosecution prayed, on 18th November, 2020, for among others, leave to issue a notice under section 34B (1) and (2) of the Evidence Act. In reply, the counsel for the appellant remarked as follows:

"My Lord, for the interest o f justice, we have no objection to the prayers made by the prosecution. We have received copies o f the said Notices . " At this particular juncture, it is worthy to observe that, issuance of a notice to use a statement of a person who cannot be called as a witness does not require leave of the trial court. The trial court will come in to determine an objection as to the admissibility of the statement if a notice of objection under paragraph (e) of section 34B (2) is issued by a party against whom the statement is sought to be used. It is to be added that, such a notice is not necessarily a notice of objection. It can be a notice proposing to the statement being admitted. In whatever case, the said notice has to be in writing. We note from the record of appeal that, upon the notice being admitted as part of the proceedings, the trial court placed the matter for hearing just on the next day. It happened that, on the said next day, PW6 was produced as a witness and the prosecution prayed, which was not objected by the counsel for the appellant, to admit the statement into evidence. It was admitted as exhibit PE3. It is suggested in Ms. Tengeneza's submissions that, in not objecting to the production of the notice as part of the proceedings, the appellant proposed to the statement being tendered into evidence in terms of section 34B (2)(e) 14

of the Evidence Act and, therefore, it was not necessary to await until the lapse of ten days from the date of the notice. With respect, we cannot, for the reasons which we are going to give as we go along, agree with that submission. In the first place, as we said elsewhere in this judgment, the notice to object or propose production of such a statement envisaged in the respective provisions must be in writing. Thus, mere remarks by the counsel that he had no objection, does not amount to a notice proposing the statement being tendered under the respective provisions. Second and more importantly, as the time limit for lodging a notice of objection under the said provisions is 10 days from the date of the notice, admitting the statement into evidence one day after, was premature and as such, it unfairly denied the appellant his statutory time to prepare and file an objection. Therefore, we subscribe to our observations in Magige Marwa Mwita & Another v. R (supra) that: "Leave alone the fact that it is settled law that the conditions under section 34B(2) (a)-(f) m ust be com plied with cumulatively, the suggestion that a party could be said to have raised no objection within ju st hours would lead to absurdity. Ten days are counted from the day o f service o f the notice which was not established in this case, and 15

prudence requires that proceedings should have been adjourned or stayed to enable the party served with the statem ent to read and appreciate its contents. A party should not be required to raise an objection under gun point\ so to say ’ provided he raises the objection , if any, not later than ten days from the date o f service o f the notice" The contention that the appellant was not prejudiced as the same statement was read and explained to him during committal proceedings cannot stand. Lodging a notice within 10 days is a statutory entitlement of the appellant which cannot be dispensed with merely because the adverse party did not object to the production of the same.Therefore, in Adinardi Iddy Salimu & Another v. R (Criminal Appeal No. 298 of 2018) [2022] TZCA 9(11 February 2022, TANZLII), it was held: "That said, we decline Ms. Sulie's suggestion that the listing o f dying declaration as an exhibit during com m ittal proceedings sufficed as notice envisaged under section 34 B(2) (e) o f the Evidence A ct which categorically requires prior notice to be given to the other party so as to enable him / her to exercise the right to oppose the statem ent to be relied upon by the prosecution. 16

In addition ; the omission to comply with the mandatory statutory requirement cannot be remedied by the failure by the appellants to object the same because it was incumbent on the trial Judge to ensure that the law is com plied with to the letter before acting on the dying declaration." The authority in Chukwudi Denis Okechekwu & Others v. R (supra), is distinguishable and, therefore, inapplicable in the instant case because the principle therein relates to who has a duty to lodge a notice to object and not, like here, what is the time limit for lodging a notice to object. For clarity, we reproduce hereunder, the respective part of the judgment: "Our understanding o f the provisions o f section 34 B (2) (e) is that, the one who had the duty to lodge a notice or raise an objection to the admission o f the statem ent o f ASP Shilla, were the appellants. Since the record is dear that\ they neither raised objection to its admission , nor prayed for leave to lodge a notice, they cannot now be heard to complain that, the statem ent and the corresponding materials, were adm itted irregularly without due notice." 17

In our view, therefore, exhibit PE3 was improperly received into evidence. Consequently, we exclude it from the record of the proceedings. We shall, therefore, consider, while addressing the last issue, if the case against the appellant was proved despite the absence of the direct evidence in exhibit PE3. We now turn to the third issue on failure of the prosecution to call material witnesses namely, the villagers who arrested the appellant and Robert s/o Chacha, the owner of the bar. It was submitted that the said persons being material, with the unreasonable failure of the prosecution to call them as witnesses, adverse inference should have been drawn against the prosecution. From the facts and evidence on the record, it may appear apparent to us that, the proposition by the prosecution was that, the appellant was arrested by the villagers and sent to the village office where he was received and put in custody, by among other village leaders, PW2. From there, he was handed over to PW5. Both two witnesses testified in details in that respect and they were not contradicted by way of cross examination. Their evidence appears to have been supported by the appellant who testified that he was arrested at the scene of the crime and sent to the village office in 18

connection to the murder of the decease. This means, therefore, the arrest of the appellant and the manner it was, was not at issue. In the circumstances, the villagers who arrested the appellant were not material witnesses. It is also clear from the record that the owner of the bar was not mentioned as a person who witnessed the murder. Instead, it was Julius Keng'ombe who was mentioned to be the eye witness of the incident. Omission to call him as a witness was accounted for. PW6 testified that, despite all reasonable steps being taken, the prosecution was unable to procure his attendance which is why they produced his witness statement into evidence. Just as PW1, the owner of the bar was mentioned because he was allegedly assaulted by the appellant as he was escaping from the scene of the crime. Therefore, with the evidence of PW1 in place, the evidence of the said person though material, would not justify the court to draw adverse inference against the prosecution case. The trial court cannot, therefore, be faulted in the circumstances, for failure to draw adverse inference therefor. This now takes us to the general ground as to whether the case against the appellant was proved beyond reasonable doubt. Since the evidence of PW4 and his post mortem examination report has been 19

excluded from the record, we have first to determine if the death under discussion occurred. It is well settled that, in the absence of the death certificate or post mortem examination report, death can be proved by circumstantial evidence. See for instance, Hamis Juma Chaupepo & Chau v. R (Criminal Appeal No. 95 of 2018) [2020] TZCA 243 (21 May 2020, TANZLII). We note that, PW1 does not claim to have seen the deceased either during or after the incident. However, PW5 testified that, on the material date, he inspected the dead body of the deceased at the scene of the crime and saw cut wounds at the head and buttocks. He then took the dead body of the deceased to the hospital where he was examined and found dead. On the same point, PW3 testified that he witnessed the dead body of the deceased being examined at the hospital and observed cut wounds on the head and the back. He claims further to have participated in his burial ceremony on the third day. None of the witnesses was contradicted by way of cross examination. Interestingly, even the appellant confirms in his evidence that, when he went at the scene of the crime soon after the incident, he saw the deceased lying down with cut wounds at his head. It is, therefore,

without reasonable doubt that, the deceased died in the circumstances alleged by the prosecution. The issue which follows is whether the remaining evidence is sufficient to prove, beyond reasonable doubt that, it was the appellant and no one else who murdered the deceased. In this case, having excluded exhibit PE3 from the record, the only evidence which remains is circumstantial evidence inferred from the evidence of PW1. In law, such kind of evidence consists of collection of facts which, if considered together, would infer an irresistible conclusion in proof of a particular proposition. It is well settled that, for circumstantial evidence to be used to sustain a conviction, the circumstances from which the conclusion of guilty is drawn must be firmly and coherently established; accurately consistent with the guilty of the accused; and that, when taken wholistically, should form a complete and unbroken chain linking the accused and no one else with the commission of the offence. See for instance, Jimmy Runangaza v. R (Criminal Appeal No. 159 B of 2017) [2018] TZCA 188 (27 August 2018, TANZLII). In his judgment, the trial Judge, as it is apparent at pages 68 and 69 of the record of appeal, considered the above principle before 21

determining whether there was sufficient circumstantial evidence to link the appellant with the offence. Besides, contrary to Mr. Mahemba's claim, the trial Judge as per page 70 of the record of appeal, duly considered the appellant's defence of alib i a nd resolved that, it did not raise any reasonable doubt to the prosecution evidence. Having critically assessed the evidence of PW1, he found it credible and probable enough to circumstantially link the appellant with the offence. In his reasoning, the trial Judge stated as follows: "In the instant case, PW1 is the father o f the deceased and unde o f the accused person. He mentioned the fight between the deceased and the accused. He testified that the accused le ft the bar and returned later while armed with a bow, panga and arrow. After a while, PW1 heard the deceased being stabbed and went im mediately to the bar where he m et the accused person on the door. Upon attempting to arrest him, PW1 was stabbed on the right shoulder and left hand and ear by the accused person. The accused person was arrested in the same vicinity when he was trying to escape. In my opinion, the said incrim inating facts are incompatible with the innocence o f the accused or the guilty o f any other 22

person. Thus, the prosecution proved that\ it was the accused person who stabbed the deceased Attacking the above finding, Mr. Mahemba submitted that the evidence of PW1 was so incredible and improbable that, it could not be believed to connect the appellant with the offence. In the first place, he wondered how probable was it for PW1 who was 15 meters away to mediate the fight between the appellant and the deceased while there were other persons nearby including Julius. With respect, the complaint is baseless. This is because, as we said herein above, whether PW1 mediated the appellant and the deceased has never been in dispute. Indeed, it was in the evidence of the appellant in defence. The complaint is thus dismissed. It was further contended that the evidence of PW1 should have not been believed because, the fact that he was stabbed by the appellant was not proved insofar as no medical evidence was tendered. Again, we cannot accept this submission. In our careful reading of the record, the appellant's assault and injury were well proved the absence of the medical report notwithstanding. PW3 testified that he visited PW1 at the hospital on the material day and found him with cut wounds on the right shoulder, left hand and left ear. He further claimed to have been informed by PW1 that, the appellant was the cause of his injury. 23

As that was not enough, PW5 confirmed that he visited PW1 on the material date at the hospital and found him with cut wounds. There was also a complaint that the weapons used to attack the appellant was not produced into evidence. From the evidence on the record, it is clear that the appellant was arrested while trying to escape. The prosecution did not claim that when the appellant was being arrested after stabbing PW1 with a panga, he was in possession of the weapons. Therefore, the alleged failure to produce the weapons does not affect the credibility of the prosecution case. It was further submitted that the appellant was not sufficiently identified as his description in terms of morphological appearance, attire, height and so on was not portrayed in evidence. With respect, the claim is irrelevant because whether the appellant and PW1 were known to each has not been in dispute. Equally so, for the proposition that, soon before the incident, PW1 mediated them. We have also considered the irrefutable fact that, the appellant was pursued and arrested in the same vicinity soon after the incident. Mr. Mahemba further submitted that PW l's evidence should not be believed because of being contradictory. He submitted that while his testimony in chief suggests that he did not see the appellant 24

assaulting the deceased, his testimony in response to a question of one of the assessors at page 14 of the record of appeal, is to the contrary. The respective statement is as follows: "I don't know who initiated the fight I saw the accused stabbing the deceased. I was playing bao at that time. When I went to the bar I m et the accused person outside the bar at the door." We have examined the above statement in line with his evidence in totality and we find that, the contradiction complained of to be too trivial to affect the substantial credibility of the evidence of PW1. The reason being that, despite the statement, his proposition remains consistent that he went at the scene of the crime and met with the appellant on the door attempting to escape. In view of the foregoing, the trial Judge's assessment of the credibility and probity of the evidence of PW1 cannot be faulted Therefore, like the trial court, we find the chain of the events inferred from the evidence of PW1 as supported by PW2, PW3 and PW5 unbrokenly linking the appellant with the murder of the deceased at the exclusion of any other person. The respective chain of events, runs, as correctly observed by the trial Judge, from the fight between 25

the appellant and the deceased which was irrefutably mediated by PW1. It is followed by the following consistent and unbroken sequence of events. One, the appellant is seen by PW1 departing from the scene of the crime and soon thereafter, returning thereto armed with a bow, panga and arrows. Two, soon thereafter, some cries are heard from the scene of the crime and when PW1 goes there, he finds the appellant on the door trying to escape and he is assaulted by a panga in the process. Three, the body of the deceased is afterwards seen at the scene of the crime with cut wounds on the head and buttocks. Four, a meanwhile after, the appellant is arrested by the villagers in the same vicinity trying to escape. The inculpatory facts herein above, in our view, establishes, beyond reasonable doubt that, it was the appellant and no one else who murdered the deceased. On whether the killing was with malice aforethought, the trial court observed that, the fact that the appellant stabbed the deceased using a lethal weapon at the head which is a very vulnerable part of the human body, implies that the killing was intentional. To that end, he placed reliance on the authority in Enock Kapela v. R, Criminal Appeal No. 150 of 1994 (unreported) to the effect that, malice aforethought can be proved by the type of weapons used, the amount of force 26

applied, the part of the body where the blow was directed and the kind of injuries inflicted, among others. Having examined the evidence on the record, we entirely subscribe to the trial court that the killing was with malice aforethought. In the final result and to the extent as afore stated, we find the appeal devoid of any merit and it is hereby dismissed. DATED at MUSOMA this 5th day of December, 2024. Judgment delivered this 6th day of December 2024 in the presence of the Appellant who appeared in person and Ms. Mwajabu Tengeneza, Principal State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. F. L. K. WAMBALI JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL C. DEPUTY REGISTRAR COURT OF APPEAL 27