Petro Kakole @ Katabi vs Republic (Criminal Appeal No. 71 of 2015) [2017] TZCA 1011 (11 October 2017)

-- < \ \araJ.J ) IN THE COURT OF APPEAL OF TANZAN;; VO AT MBEYA (CORAM:- MUSSA, J.A, MZIRAY, J.A., And MWANGESI, J.A.) CRIMINAL APPEAL NO. 71 OF 2015 PETRO KAKOLE@ KATABI ...................................................... APPELLANT VERSUS THE REPUBLIC ············••11••···································•11••···········RESPONDENT (Appeal from the Judgment/decision of the High Court of Tanzania at Sumbawanga) 3rd & 12 th October, 2017 MUSSA, J.A.: (Mwambegele, J.) dated the 6 th day of June, 2014 in Criminal Session Case No. 44 OF 2012 JUDGMENT OF THE COURT In the High Court of Tanzania, at Sumbawanga, the appellant was arraigned for murder, contrary to Section 196 of the Penal Code, Chapter 16 of the Revised Laws (the Code). The particulars on the information alleged that on or about the 21s t March, 2011, at Mamba Village, within Mpanda District, the appellant murdered a certain Catherine Mpasi. 1

On the 22 nd March, 2013, when the matter was placed before Khaday, J. for plea taking and, upon the information being read and explained to him, the appellant's response was:- ''it is true. " Soon after the plea, Mr. Kampakasa, learned Advocate, who had the conduct of the case for the appellant, rose to inform the court that on account of an apparent irrational behavior of the appellant, he would request the appellant to be sent to Isanga Mental Institution so as to have his mental status medically examined. The prayer, which was predicated under section 219(1) of the Criminal Procedure Act, Chapter 20 of the Revised Laws (CPA), was unassailed and, accordingly, granted. A good deal later, on the 25 th February, 2014 the case was placed before Samba, J. for preliminary hearing. During the exercise, four matters were agreed as undisputed and, these were, the contents of the sketch map,, the postmortem report, the names of the appellant as posted on the information and, lastly, the name of the deceased person. Not insignificantly, there was no mention of a psychiatrist report as to the mental status of the appellant just as it did not feature in the 2

prospective list of exhibits for either side which were enumerated and disclosed at the close of the preliminary hearing. Thereafter, the prosecution case commenced and from a total of its two witnesses, the prosecution version was fairly very brief: The deceased anti her husband, namely, Clement Mwanamizi, were residents of the already referred Mamba Village. On the fateful day, around 5:30 a.m or so, the deceased awoke and headed straight outdoors to attend a call of nature. As she walked outside, the deceased had a gourd in hand. Incidentally, at that particular moment in time, a neighbor, namely Paschalia Nsumba (PW2) was thereabouts as she had also awaken from-:,, her home to also attend a call of nature. Soon after, PW2 saw the appellant as he stood by a ''Mbono"tree with a piece of wood in hand~ Just then, PW2 saw the deceased as she came out of her residence and as she poured the contents of the gourd on the ground. PW2's guess was that the gourd was a urine jar unto which the deceased used to help herself in th~ dead of the night. According to PW2, having poured out the contents of the gourd, the deceased then attended the call of nature 3 •'-', .. : . . ,(; 'i~ -: .. ~- -

and headed back to her residence. Within a moment, the appellant followed her and having closed on her, he (appellant) pounded the deceased's head with the piece of wood he was holding. As the deceased fell to the ground, the appellant ran clear of the scene leaving the piece of wood right there. PW2 who then also ran to keep the neighbours posted of the incident, wound up her testimony with a remark that the appellant was not quite a normal being as he used to smoke marijuana. On, at least, one occasion, she added, the appellant chased his own mother with intent to attack her. In the meantime, PWl had heard a huge bang coming from outside their residence, whereupon he rushed outdoors to see what had gone.. ,. wrong. As it were, he found his deceased wife lying unconscious a,t the doorstep of their residence. It was not disclosed as to exactly when the deceased was no more but, according to the autopsy report, her demise resulted from a severe head injury (concussion). If we may, again, remark, throughout the conduct of the prosecution case, there was no mention from any witness of any report relating to the mental status of the appellant. With this detail, so much for the prosecution version which was unveiled during the trial. I 4 1

In reply, the appellant completely disassociated himself from the occurrence. As to what he said, it is, perhaps, best if we should extract I the material portion of his testimony:- ''I do not remember anything about this death. I do not know the deceased. I have never seen that old woman. I know that she was an old woman because her age was read here. I do not remember when I was arrested. I gained I consciousness after coming from Mirembe Hospital. The Judge ordered that I should be taken to Mirembe Hospital · for medical examination. I do not know when the order was given. I do remember when I arrived there. I do not remember my doctors at- Mirembe but can identify if I see them; The consultant psychiatrist interrogated me after some forty days. Meanwhile I had been taking medications together with other inmates. I was told that I should prepare myself for my journey back here 5 r

to Mpanda after 45 days. I was taken to Isanga Prison after 50 days where I stayed for ten more days and transported back here. I was not conscious of myself before being taken to Isanga Institution. I was being told that I was mentally unfit. We have a history of mental unfitness in the family. My paternal uncle was mentally unfit until his death. So is my other paternal uncle who is mentally unfit to date. I cannot be surprised if I was mentally unfit at the commission of the · "";- - offence for I do recall anything. // Despite the foregoing revealing memories of the appellant, neither ·, :-.· .·- the prosecuting State Attorney nor· the defence counsel deemed it opportune to demand and put upon record the psychiatrisfs report on the -mental status of the appellant so as to counter or, as the case may have been, affirm the defence of insanity at the commission of the crime which was seemingly raised by the appellant. As a result, at the 6

conclusion of the cases for the prosecution and defence, the whereabouts of the report was every body's guess. No wonder, in his written submissions to the trial court, Mr. Patrick Mwakyusa, learned Advocate, who had taken over the conduct of the defence case had this to say:- "The defence has not been availed a copy of the report from the mental institution, neither did a psychiatric expert called to testy (sic). We are of the opinion that from the behaviour showed by the accused and proved by PW2/ the accused was unsound mind (sic) when doing the act. v On the contrary, Mr. Njoloyota Mwashubila, the prosecuting learned State Attorney, was fully seized of the psychiatrist's report and, this is what he said in his submissions:- "We have a copy of the report from the institution signed by Dr. Mndeme Erastu~ Consultant Psychiatrist anc:l in his report, he concluded that Mr. Petro Kababi is normal and therefore was SANE during the time of commission (sic).// 7

Such r,eference to the psychiatrist report was also made by the presiding Judge (Mwambegele, J. as he then was), in his summing up notes as follows:- 'f1t Isanga institution the accused person was examined by Dr. Erasmus Mndeme a consultant psychiatrist in the presence of Gema Simbee (psychiatrist) and Paul Kawamala/ Daniel Magina and Rhoda Waryoba (senior nurses). The examination was conducted three times - on 11.08.2013/ on 24.09.2013 and on 27.09.2013. After such examinations/ Dr. Mndeme and his team concluded that the accused person is normal and that he was sane at the time he committed the offence. These are/ inter alia/ the contents of his report he forwarded to this Court vide his latter bearing Ref. 9198/2013 dated 26.09.2013. // 8

The foregoing extracted reference to the psychiatrist's report were replicated in the judgment of the trial court. Nonetheless, in the upshot, the court acquitted the appellant of the offence of murder but found him guilty of the lesser offence of manslaughter, contrary to section 195 of the Code. Upon conviction, he was sentenced to life imprisonment. Dissatisfied, the appellant seeks to impugn the decision of the High Court upon a memorandum of appeal which goes thus:- "1. That the trial court did not make a proper analysis of the evidence on record. 2, The learned trial Judge erred in law for basing his findings and conviction on uncorroborated evidence. 3. The learned trial Judge erred in both points of law and facts for convicting the Appellant of the offence of Manslaughter and sentenced him to life imprisonment while the case was not proved beyond reasonable doubts. v 9

When the appeal was called on for hearing before us, the appellant was represented by Ms. Mary Mgaya, learned Advocate, whereas the respondent Republic had the services of Mr. Hebel Kihaka, learned State Attorney. At the very outset, we invited counsel from either side to comment on the consequences of the trial court's reliance on the psychiatrist's report which was, after all, not tendered into evidence. Upon our invitation, Ms. Mgaya forthrightly submitted that the trial court's reference and reliance upon the report was a misdirection which unduly prejudiced the appellant who was throughout unaware of the contents of the report. On account of the shortcoming, the learned counsel for the appellant advised us to nullify the entire proceedings with an order for a retrial. In response, the learned State Attorney seconded the submission of his friend and just as well advised us to nullify the entire trial proceedings by invoking the provisions of section 4(2) of the Appellate Jurisdiction Act, Chapter 141 of the Revised Laws (AJA). Mr. Kihaka similarly pressed for an order of retrial. 10

.. On our part, from the sequence of the trial proceedings, it is beyond question that the psychiatrist's report on the mental status was not, at any time, adduced into evidence. It may have been that the report was submitted to the Court by letter as remarked by the trial Judge but, such was, at best, an administrative correspondence. To the extent that report was not subsequently tendered in evidence, it remained an I extraneous matter, unworthy of reference to establish any fact in issue. That being so, it was improper for the learned Judge to gloss over the report which was, so to speak, not a matter of the evidence. The psychiatrist's report which undoubtedly weighed in the trial court's finding that the appellant was sane at the commission of the offence was, in the first place and, as already intimated, not brought to I the attention of the appellant and his counsel. Looked from that angle, the appellant was not accorded a fair trial. Upon numerous occasions, this Court has reasserted the importance of affording equal opportunity to both parties in a case (see, for instance, the unreported cases in Criminal Appeal No. 32 of 2003 - Alex John vs The Republic; Criminal Appeal No. 160 "B" of 2014 - Ngassa Kapuli @ Sengerema vs The 11

• Republic; and Criminal Appeal No. 287 of 2014 - Matatizo Bosco vs ' The Republic). In the light of this shortcoming alone, we are constrained to fully subscribe to the submissions of counsel from either side. All said, we invoke the provisions of Section 4(2) of AJA and, accordingly, nullify the entire trial proceedings with an order for a retrial before another Judge and a new set of assessors. In the meantime, the appellant should ' remain in custody to await the resumption of the trial. It is so ordered. DATED at MBEYA this 11 th day of October, 2017. K. M. MUSSA JUSTICE OF APPEAL R. E. S. MZIRAY JUSTICE OF APPEAL S, S. MWANGESI JUSTICE OF APPEAL . I certify that this is a true copy of the original. . ~. 1: .. ----Y. MKWI-ZtJ . ~D-EPU.T-::Y;;:;;RfGISTRAR ~ ~COURT OF APPEAL 12