January Casian Mallya vs Republic (Criminal Appeal No. 288 of 2020) [2023] TZCA 17966 (14 December 2023)

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI f CORAM: SEHEL. 3.A.. KEREFU, J.A, And MLAC HA, J.A CRIMINAL APPEAL NO. 288 OF 2020 JANUARY CASIAN MALLYA.......... .... ......... ............................................ .... ........ .APPELLA VERSUS THE REPUBLIC .... .......... ............................................................ ..... RESPO (Appeal from the Decision pf the High Court of Tanzania at Moshi) fMwenempazi, J.) dated 28th day of May/ 2020 in Criminal Sessions No. 17 of 2017 JUDGMENT OF THE COURT 6th& 14th December, 2023 MLACHA, J.A.: At the High Court of Tanzania at Moshi, in Criminal Sessions Case No. 17 of 2017, the appellant, January Casian Mallya was charged with murder contrary to section 196 of the Penal Code, Cap 16, R.E. 2002. It was alleged that the appellant murdered Felister Casian Mallya (who was his biological mother) on 23r d December, 2015 at Mtakuja Village, Bomang'ombe area, Hai District, Kilimanjaro Region. He was found guilty, convicted and given the mandatory sentence of death by hanging.

The background of the matter is as follows: Magreth Silvester Umbella (PW4) lived with her grandmother, the deceased, in a homestead which had two houses. With them was the appellant and his son Jackson. The appellant lived in one of the houses while others lived in the second house, On the evening of 23/12/2015, the deceased, PW4 and Jackson were seated in the deceased's house. The appellant entered and accused the deceased of bewitching his son, Jackson. The deceased replied that she could not do such a thing. The appellant started to beat her. He pulled her down and beat her on the head using his leg. He drugged her and continued to beat her using a black water pipe. He then pulled a screw driver from his pocket and stabbed her on the stomach. The deceased cried calling for assistance. The appellant was heard by PW4 saying "true, I will kill yoW . PW4 witnessed ail this; she positioned herself on the door witnessing what was happening. Jackson left. The appellant left leaving the deceased on the ground who was unable to talk. PW4 searched her and got a cellphone. She tried to use it but it had no credit She rushed to a nearby shop to buy a 2

voucher but could not get any. She sent a request o f 'please call me' to her uncle, Vicent Kasian Mallya (PW2), who lived in Moshi Municipal. PW2 called back. She told him that the appellant had assaulted her grandmother, the deceased. PW2 advised her to report to neighbours for assistance and he promised to come on the next day as it was night, around 20:00 hours. PW4 screamed but nobody came. Neighbours could not come because they were used to noises from the homestead. PW4 entered in the house, leaving her grandmother on the ground, hopping that she could raise up later. She slept till the next day when she noticed that she was dead. She gave this information to neighbours. The appellant was arrested by civilians following reports from PW4 and sent to the village office. Giving details of the event, PW4 said that the appellant beat the deceased using a plastic water pipe and a screw driver. He was dressed with a shirt and a short on the date of the crime. She was able to identify him using light from a kerosene lantern. PW2 came on the next day and saw the deceased on the ground inside the house. Soon, the Village Chairman, Tehera Kipara Mollel (PW3) came with Policemen. Those who came from the police

station included E3104 D/SGT Jean (PW5). The police took the appellant to the police station. The deceased was sent to the mortuary of Hai District Hospital. The body was examined by Dr. Angelister Shirima (PW1) who also filled the postmortem examination report, exhibit PI. PW1 told the trial court that the deceased had a deep wound on the stomach. In her examination she opined that the deceased's death was caused by profuse bleeding from the stab wound. PW5 retrieved the screw driver and the plastic water pipe at the scene of crime next to the body of the deceased. They were tendered and admitted in evidence as exhibit P2f collectively. In his defence, the appellant admitted to reside in the same homestead with his mother, the deceased, together with PW4 and his son Jackson. His house was adjacent to that of his mother. He testified further that, on 23/12/2015 at 18:45 hours, he went to the house of Mr. Salvore Ngidongi who had a ceremony of inaugurating the house. The appellant remained there till the next day, 24/12/2015. Hoping that everything was well at home, he proceeded to his work place. He was arrested at his work place and sent to the

village office accused of murdering his mother something which was not correct. He said that he saw his mother, the deceased, on 23/12/2015 at around 16:00 hours; healthy and alive. He left her with PW4 and proceeded to the ceremony. He denied killing his mother but admitted that he used a water pipe to beat her. During cross examination he admitted five (5) times that he struck his mother with a black water pipe and said that he was not sure if it caused the deceased's death. Having heard the evidence from both sides, the trial judge found that the prosecution had proven its case to the required standard. Thus the appellant was found guilty, convicted and sentenced as indicated above. Aggrieved, the appellant has preferred the present appeal. In the memorandum of appeal the appellant raised 5 grounds and in the supplementary memorandum of appeal he raised 8 grounds of appeal, making a total of 13 grounds of appeal but when the counsel for the appellant was called to address the court, he reduced them to five grounds of appeal. They read as under:

1. That, the trial court erred in law to sentence the appellant while the preliminary hearing was not properly conducted.
2. That, the learned trial judge erred in law and fact by considering exhibit PI which was tendered unprocedurally.
3. That, the learned judge erred in law and fact in failing to note that the prosecution failed to prove the case in the standard required.
4. That, the learned trial judge erred in law and fact by failing to consider the defence of alibi.
5. That, the trial judge erred in law for not properly direct the assessors on the main issues of the case and by influencing the assessors in his opinion. Mr. Patrick Paul, learned advocate, appeared for the appellant, while the respondent Republic was represented by Ms. Dorothy Massawe, Principal State Attorney, assisted by Ms. Jacqueline Werema, State Attorney. Submitting on ground one, Mr. Paul argued that the preliminary hearing was not properly conducted especially in the tendering and 6

admitting exhibit PI. It was not read and explained to the appellant before the appellant was asked to comment on its admission. She prayed for exhibit PI to be expunged. In ground two, the complaint was that exhibit PI was not tendered by a witness but the state attorney who was not a witness. It was submitted that the state attorney had no mandate to tender it as such it must be expunged. In ground three, the counsel for the appellant submitted that there were contradictions in the prosecution case. That PW4 said at page 47 that the appellant left with the screw driver, whereas PW5 said they found it at the scene of crime; that, PW4 said the body of the deceased was inside the house, whereas PW3 said that it was outside; that, PW4 said that the event took about IV 2 hours and she rose an alarm but there was no response. He added that, there is no evidence connecting the accused with exhibit P2 collectively were hot mentioned in the proceedings of preliminary hearing. Neither were they taken for DNA examination. The complaint on ground four was that the trial judge did not take into account the defence of alibi in deciding the case. Making reference to pages 55 to 60 of the record of appeal, the counsel

submitted that the appellant said that he was not present at the scene of crime but this was not taken into account in assessing the evidence. He had the view that if the judge had taken this into account, he would have found the appellant not guilty. In ground five, the learned counsel urged that the summing up to assessors was not properly done. Making reference to page 59, lines 24 to 25, counsel contended that the judge added some extraneous matters which are not found in the record. He went on to argue that the judge did not make reference to the evidence of PW4, who was the only eye witness, the burden of proof and the defence of alibi. The learned counsel concluded that the proceedings and the judgement of the High Court were tainted with illegalities and contradictions, He therefore urged the court to allow the appeal. Ms. Werema, State supported the appeal on a single ground that, the prosecution failed to prove the charged offence against the appellant; constituting ground three of appeal. She submitted that, PW4 was not a credible witness because her evidence is full of doubts. She pointed out that; one, PW4 said she rose an alarm but no

one responded to it because they were used to noises coming from the house of the deceased. Two, PW4 failed to call neighbours. Three, PW4 went to the shop but could not tell the shopkeeper of what had happened at home. Four, PW4 went to sleep till the next day despite of what had happened. She went on to argue that the confession of the appellant that he strike the deceased with a water pipe is irrelevant because that was not the cause of death, which according to PWl, the deceased's death was due to profuse bleeding from the stab wound. He went on to argue that, exhibits P2 collectively, were not listed in the committal proceedings making them illegally before the court. She argued that the prosecution was supposed to give a notice under section 289 of the Criminal Procedure Act, (the CPA) but that was not done. At the end, she beseeched the Court to give the appellant the benefit of doubts and set him free. Having heard the submissions from the counsel for the parties, we are now in a position to determine the appeal before us. We shall start with ground five which raise procedural flaws based on assessors. Counsel for the appellant submitted that the trial judge failed to address the assessors on vital points of law.

We had time to go through the summing up notes, appearing at pages 67 to79 of the record of appeal and noted that the learned trial judge properly summarized the evidence of all witnesses. At pages 39, 40 and 43 the learned trial judge made reference to the evidence of PW4 which the counsel for the appellant contended that it was not referred. It is therefore not correct to say that the assessors were not referred to the evidence of PW4. Having been properly directed, the assessors rejected the appellant's defence. There is however some truth on the complaint that the judge did not address the assessors on vital points of law such as alibi and the burden of proof. Reading through the record of appeal, we observed that the leaned trial judge mentioned actus reus and mens rea as key elements establishing the offence of murder but he did not direct assessors as to what entails alibi, who has the burden of proof and to what standard. Nevertheless, we find that this omission is excusable because it did not cause a miscarriage of justice to the appellant. Equally, the allegation that the judge introduced extraneous matters. Looking through the record of appeal, we observed at page 69 lines 23 to 24 that the learned judge referred to "a dog" when he 10

said, "Neither did she go out to them as she was afraid of dogs". The word "dog" is the issue here because it is not seen in the evidence of PW4. Nevertheless we are certain that these defects are curable under section 388 of the CPA. We are fortified by our decision in Safari Anthony @ Mteiemko and Another v, The Republic, Criminal Appeal N. 404 of 202l(un reported) where we amply said: "Be as it may, we have to resolve Mr. Kelvin Kayaga's complaint in the second limb o f his first ground, to definitely state the effect o f failure to address assessors on vital points o f law. As indicated earlier on, the requirement to have the assessors' participation in a trial is a procedural matter as per Kobelo Mwaha's case (supra). As such, for a procedural lapse or omission to vitiate a proceeding, it must be demonstrated that the lapse occasioned a miscarriage o f justice, on the person alleging irregularity. Otherwise the omission is deemed to be inconsequential and thus, curable under section 388 o f the CPA as per ErnestJackson Mwandikaupesi (supra) and Amani Rabi Kalinga (supra)."

Next for our consideration is ground one dealing with the conduct of the preliminary hearing. We shall start with the position of the law. Section 192 of the CPA which govern the conduct of preliminary hearing reads as follows: "(1) Notwithstanding the provisions o f section 229 and 283, if an accused person pieads not guilty the court shall as soon as convenient, hold a preliminary hearing in open court in the presence o f the accused and his advocate (if he is represented by an advocate) and the public prosecutor to consider such matters as are not in dispute between the parties and which will promote a fair and expeditious trial. (2) In ascertaining such matters that are not in dispute, the court shall explain to an accused who is not represented by an advocate about the nature and purpose o f the preliminary hearing and may put questions to the parties as it thinks fit; and the answers to the question may be given without oath or affirmation. (3) At the conclusion o f the preliminary hearing held under this section, the courts 12

shall prepare a memorandum of matters agreed and the memorandum shall be read over and explained to the accused in a language that he understandsf signed by the accused and his advocate (if any) and the public prosecutor, and then filed"{ Emphasis added). The import of the above provision was considered by this Court in the cases of G.9963 Raphael Paul @ Makongojo v. Republic, Criminal Appeal No. 250 of 2017, Efrain Lutambi v. Republic, Criminal Appeal No. 30 of 1996, Joseph Munene and Another v. Republic, Criminal Appeal No. 109 of 2002, and Mkombozi Rashid Nassoro v. Republic, Criminal Appeal No. 26 of 2002 (all unreported). For instance, in Raphael Paul @ Makongojo (supra) the Court said as follows, at page 13: "A preliminary hearing has several basic steps. The first step is for the Court to explain to the accused person if he is not represented, the nature and purpose o f the preliminary hearing and after that, the court may put questions to the parties. The second step is for the prosecution to read the facts o f the case constituting elements o f the offence in 13

question and tender any documents) which the prosecution in its opinion thinks can be tendered at this stage. The third step is for the court to ask the accused or his advocate if any, on the basis o f the facts read by the prosecution , which matters are not in dispute. The fourth step is that the court shaii list down all matters which are not in dispute on the basis o f which a memorandum o f matters agreed shall be prepared. The fifth step is for the court to read over and explain to the accused in a language that he understands after which the memorandum shall be signed by the accused and his advocate (if any) and the prosecutor as well the Magistrate or Judge". Further, in the case of Christopher Ryoba v. Republic, Criminal Appeal No. 26 of 2002 (unreported) the Court outlined the steps as follows: "a) Prepare a memorandum o f the matters agreed in the presence o f the accused and his advocate (if any) and the public prosecutor. b) The memorandum must: i. be read over and 14

ii. be explained to the accused in a language understood by the accused (see also MT 7479 SGT Benjamin Ha/e/a v. Republic (1992) TLR 121.) c) The memorandum must be signed: 0 by the accused; ii) by his advocate (if any); and iii) by the public prosecutor d) Then it must be filed as part o f the record" The record of the appeal shows that the preliminary hearing which was conducted on 2/10/2017 the appellant was before the Court and that on that same date the charge was read over and explained to the appellant who pleaded not guilty. The court entered a plea of "Not Guilty" and proceeded to hold a preliminary hearing on the same day where the facts were adduced and recorded by the judge. Thereafter the learned state attorney made a prayer. We reproduce the prayer hereunder: "Mr. Mwinuka: We pray to tender the postmortem report, if there could be no objection. Mr. Njau: We have no objection for the report to be admitted into evidence. 15

Court: A postmortem report dated 2&h December, 2015 conducted at Hai District Hospital is admitted and marked as exhibit PI". From the above excerpts, exhibit PI was tendered and admitted during the preliminary hearing. At that stage, the appellant had a counsel who was asked to comment on its admission but did not register any objection. Given the fact that the appellant had an advocate at the preliminary hearing who was shown the document before being tendered and did not object to its tendering, we do not find that failure to read the document to the appellant occasioned any miscarriage of justice. Further, the doctor who prepared the post mortem report was paraded as a witness (PW1). When giving evidence, PW1 was shown the document and identified it to be the document he prepared. He identified it by his signature and the hand writing. He read and explained the contents to the Court. In that respect, we find no merit on ground one and proceed to dismiss it. Moving to the complaint on ground two which is on the modality of tendering the exhibit, with due respect, we are not persuaded by the argument made by the counsel for the appellant who had a view

that exhibit PI was not supposed to be tendered by the state attorney but a witness. On this we wish to reiterate what we said in the case of Raphael Paul @ Makongojo (supra), that: "The prosecution to read the facts o f the case constituting elements o f the offence in question and tender any document (s) which the prosecution in its opinion thinks can be tendered at this stage", (Emphasis supplied) It follows that it is the prosecutor who prays to tender the exhibit and not a witness during the preliminary hearing. It is well known that we don't have witnesses at this stage, so, the prayer will be made by the prosecutor. That is what was done in this case making ground two baseless. The complaint by the appellant on ground three is that there is contradictions in the prosecution evidence. The learned counsel for the appellant mentioned the alleged contradictions. We shall deal with each of the alleged contradictions. But, we think that we should start with the position of the law on this aspect of contradictions. Luckily, there are plethora of authorities including the case of. In Dickson

Elia Nsamba Shapwata v. Republic, Criminal Appeal No. 92 of 2007 (unreported), where the Court said: "In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest o f the statements. The court has to decide whether the inconsistencies and contradictions are only minor, or whether they go to the root o f the matter" Further, in the case of Mzee Ally Mwinyimkuu @ Babu Seya vs Republic, Criminal Appeal 499 of 2017 (unreported), the Court held: "In all those cases, the Court has been firm that minor contradictions, inconsistencies or discrepancies in evidence from the prosecution w ill not dismantle its case. The reason for this stance is not hard to seek; minor contradictions, inconsistencies or discrepancies in evidence for the prosecution do not corrode the strength o f its case as do material contradictions, inconsistencies and discrepancies." 18

See also the cases of Marino Slaa Hofu & 3 Others v. Republic, Criminal Appeal No. 246 of 2011 and Twalaha Ally Hassan vs. Republic, Criminal Appeal No. 127 of 2019 (both unreported). We also think that it is important to point out that PW4 at the time when she gave evidence in 2020 was 17 years. This means that when the incident took place in 2015, she was 12 years old. In order to appreciate the discussion that follows/ we prefer to reproduce part of PW4's evidence. PW4 said the following at pages 42 to 45 of the record: "When at home that day, my uncle came home and he found us with our grandmother; my uncle started to tell my grandmother that she is bewitching his son. Grandmother said she cannot bewitch her grandson. That grandson is Jackson. At the time Jackson was present I don't know at what time Jackson left. However, my uncle January started beating grandmother; he pulied her and fell her down. He started to kick her on the head (akaanza kumkanyaga maeneo ya kichwani) using his legs. At the time I was at the door. I told my 19

unde to leave my grandmother alone. He dragged her. My unde took a screw driver from his pocket and used it to stabbed (sic) Felister on her stomach three times. While beaten by January, my grandmother was shouting that January is killing her. January was saying n true I will kill you" I was still standing on the door. They were on the door. They were on the side o f the door besides me. Then after he had stabbed grandmother he left and went to his room. My grandmother remained there unable to talk, I searched her and took a phone. There was no credit I sent a request to be called (ujumbe wa tafadhali nipigie). The shop is not far from where we reside. A t the shop there was no voucher. I sent a request to be called to unde Vicent Unde Vicent stays at Moshi Shirimatundo area. He called and told me he is far. He advised me to call neighbours. They are near. I screamed to neighbours and went home. Neighbours did not turn up. I think they are used alarms. Because that appeared almost every day ... I passed on the side and went to sleep hopping 20

she could wake up later. I then found she had already passed away. We now move to see the contradictions, if any. First, the contradiction based on the place where the body of the deceased was seen on 24/12/2024, the day following the date of crime. PW4 said that the body of the deceased was inside the house near the door. That was also the evidence of PW2. However, PW3 said that it was outside the house. He used the following words at page 40: " We found the body lying outside the house but within the fence o f the house" (Emphasis supplied). At page 41 of the record of appeal, PW3 said it was inside the fence. Hie issue is whether this was a contradiction. We don't think it was. We think it was just a way of expressing things. But suppose we take it to be, taking into account the lapse of 5 years in between and the fact that PW3 never lived there, we consider it to be minor. The lapse of time may lead one to forget details, people are not computers to keep memories endless over the years.

Second, is on the screw driver. PW4 said that the appellant left with it but PW5 said he picked it inside the house. We agree that this is a contradiction but it is minor, not material. PW4 might not have seen him dropping it given the state of terror and age of the witness at the time the incidence took place. Third, is the alarm and the decision to go back to sleep. We don't think this is a contradiction rather an issue in respect of the credibility of PW4, The trial judge believed him and we think he did so rightly. As pointed out, PW4 was only 12 years in 2015. She was very young. Her ability to reason on what to do next after nobody responded to her alarm may as well be the reason for to go back to sleep. She must also have been confused and affected by the state of terror. Given her age and the terror she witnessed, we find that her decision to go to sleep instead of reporting the incident cannot be attributed to contradictions or incredibility of her evidence. We see no contradiction. We see no contradiction and we find that she was a reliable witness. Four, exhibit P2 coliectively have no connection to the appellant and were not listed in the preliminary hearing. Neither were they sent

for DNA test. The evidence of PW4 is loud on these exhibits, that they were used to beat the deceased. PW5 also said that he retrieved them at the scene of crime and is the one who tendered them. So, it is not true to say that they have no connection in evidence. Although we agree that exhibit P2 was not mentioned at the preliminary hearing, we find that it is not a contradiction in evidence. Equally we agree that DNA test was not conducted. However, DNA test is not compulsory. We said so in the case of JustineHamis luma Chamashine vs. Republic/ Criminal Appeal 669 of 2021 (unreported), at page 24 that: "...the law in Tanzania, at the very least the Evidence Act Cap 6 governing the admissibility o f evidence , does not make DNA evidence compulsory. As in the Case o f any other form o f evidence in Tanzania, the admissibility o f DNA evidence, fingerprint evidence or any other form o f evidence depends on their relevance to an issue and whether they are admissible in accordance with any applicable written law. In the circumstances o f this appeal, the prosecution was free to determine which form o f evidence to prove its case and 23

which, however probative, to discard. The defence enjoyed similar latitude to determine the form o f evidence. DNA evidence is not the only evidence in this appeal by which the prosecution may prove the offence o f murder against the appellant" Having overruled the argument that there were no contradictions, the submission made before us by Ms. Werema also dies natural death. We therefore do not agree with her that there is merit in the appeal. We held the same position in the case of Dickson Anyosisye v. Republic, Criminal Appeal No. 155 of 2017 (unreported). Lastly, we wish to consider the complaint that defence of alibi was not considered by the trial court. According to the evidence on record, especially the evidence of the appellant, DW1, he claimed that he was not present at home on the day when the murder occurred. He claimed that he went to a neighbor who had a ceremony and he stayed there till the next day. Our close scrutiny of the record of appeal revealed that the trial judge extensively dealt with and discussed the defence of alibi. This was done at pages 158 and 159 of the record of appeal. In that regard, with profound respect, we

hold that, it was wrong to say there was no attention to the defence of alibi. Accordingly, we find this ground of appeal also without merit. We dismiss it. In the end we find that the appeal is devoid of merit. We hereby dismiss it. DATED at MOSHI this 14th day of December, 2023. The Judgment delivered this 14th day of December, 2023 in the presence of appellant appeared in person and Mr. Ramadhani Kajembe, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. B. M. A. SEHEL JUSTICE OF APPEAL R. J. KEREFU JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL I