Republic vs Aloyce Mwanjute and Others (Criminal Sessions Case No. 23 of 1996) [2000] TZHC 609 (21 June 2000)

J ,I IN THE HIGH COURT OF TANZANIA AT MBEYA ORIGINAL JURISDICTION , (Hbeya Registry) " . CRIMINAL SESSIONS Ci.SE NO. 23 OF 1996 THE REPUBLIC . VERSUS 1 o J~IDYCE h\rJANJUTE 2. ALPHONCE MW,\LYiJ/iA 3. ANTHONY GONELAMENDA 4. LINUS MWAKAJENDflJI JUDGEMENT Three accuGed persons nai:.ely 1'.lphonce Mwaliana, Imtony Gonelanenda and Linus Mwcikajendaji rer:iain char3ed of r:mrderins one l'-hhar:ed s/o MU3sa KiionGa c/s 196 of the Penal C,Jde D.fter ,:i.loyce Mwanjute passed away. The brief facts of this case are th2t the deceased Mohaced s/ o Huss a Kigonga lived in Itai::ba village i.'1 Mbarali District, Mbeya Region. He was not Darried w7.d lived u..'1der his u.11.cles roof PW1 Taratibu Kigonga, who took care •-:>f hi1:1 since he was a child.. The accused pers•Jns were all residents of '1 Ukwavila village neishbouring Ite.i.,ba village. They knew each other as \hey • • • -I : . either i:1et at football matches, in cleaning cows or in. c.iscosplayed at Ukwavila village. Both accooecl also knew Rhoda Mwandube (PW2) whJ had agreed to r:iarry the deceMed ruid dowry procedures ;1here underway according to PW1 v Alphonce Mwailir:ia also wanted Rhoda who refused to have l•JVe relatior...ship with hirJ. On realising that Rhoda did not love hir:i because she loved Mohaned Kigonga wh0 was actually seen visiting his fiancee frequently, Aphonce told his rienda being Linus, Antony ond Aloyce who decided t0 teach the deceased a lesson ancl to see so it that he does not return t•J that village passing away for Alphon,ce.to r:iarry Rhoda, It has been alleged that prior t,J his death the deceased tvas chased by the friends of Alphonce in his absence and he run away. On the evening of 1/7/94 a day when .. he c1et his death the deceased was allegedly seen by w .

2 - Alphonce riding his bicycle a ph.jenix ::1al{.e going to pay u ~~i.sit to Rhoda .. -Alphonce thus told his friends and they decided to follow the deceased at Rhoda's house. J.loyce adviced the::1 to take a weap,::m ;md he actually t,)ok his hoe with hin. On arriving at Rhodas house they called hiw and he went outside~ Later Rhoda heard as if people were fiGhting outside her houseo When she opened the door she saw five people standing outsideo One of then who she identified as Aloyce Mwanjute ·'threatened her with a· hoe which he was holding telling her to return i11Side and not say anything elsewise she would also be killed. She heeded to th1!s and returned inside. ,:,ccording to her she did not know what happened but'. did not see the dececIBed again, She later learnt thc,t he wo.s murdered o.nd recalled what she saw that evening. Now after PW1 did not see his nn he sent people to look for hir:i at Ukwavila, Ubena and Uten5ule were h0 usually went but he was not Seen, He thus reported that his son wa.s .r:1issing to the village chairman, an alarr1 was raised and a search was accordingly conducted. On 27/7/94 hu.--::1a..11 remains seing a piece :)f a skull anc. tire which were only bones were found in the bush. A hoe with blood stains wo..s also found there and pieces of clothes which the decensed relatives identified as clothes I which the decea.sed was lo.st seen wearing were also found thereo Blood and blooc. drops were traced fron the bush up to Rhodas house, When Rhoda was questioned was when she disclo.sed her relationship with the dece3.Sed o.nd Alphonce &'1.d what' she so_w ,)n the evening of 18/7/94 o.nd that since then she had not seen the deceasedo She refused to have seen blood at her h;usehold the next day es she did not go t,J the scene because the ·, search was being conducted by :.:1en aloneo Thereafter Alphonce was arrested and in his caufOti'.)ned staterient which he repudiated but was adr:iitted in court he confessed to have 1:mrdered the deceased in collaboration with Aloyce, Linus and Ant.:my. P<J4 one Mathias wh0 took his state1:-1ent said it was frOi:1 the confession of iHphonce that he □ anaged to recover the deceased bicy clc which had been taken by :iloyco which 'I I

.i. ; 'i 3 - the deceased relatives identified as the one belonging t·J the decensed. Rhoda acbitted that the deceased had a bicycle that night but could not \ \ identify it in court. i' .. lphonce acbitted in his stateuent that after killing the deceased they put him ,Jn his bicycle and went to throw hiD in the bush so that he would not or be eaten by animals and could not be discovered•' They left the ho~ and the bicycle at the scene and the next day was when . ' Aloyce took the bicycle when he found the dece8.Sed body had seen eaten by animals. The postmr:: ·terr1 report, the bicycle, a hoe and the stater;1ent of li.lphonce Mwaliama were tendered in court as exhibits respectively. The bones were given to the deceased relatives for burial and the pieces of the clothes whereabouts are unknown. It was the prayer of the prosecution that this court finds the accused guilty of the charged of ourder of the said Moha:"Jed Kigongo as they have proved their case beyond reasonable doubt due to the following reas::ms:- It was admitted during the preliminary hearing that the deceased was rnrrdercd and that the hur.ian reriains recovered were his as satified by tht: Doctor in his report tendered in court· as exhibit P1-.. So there can be no dispute as to the death of the deceased. The issue is only whether the accused persons killed the deceased who W:3.S identified by his relatives·. Mr~ Nangela said it has been prove'd that it was the three accused who killed the accused as they were n:Jt only friends but all of ther.i knew the deceased who lived in the neighbouring village of Ita.bao Under all circur.stances of this case Mr. Nangela informed that there wns sufficient circuE1Stantial evidence to prove that the deceased had passed away for no one else was reported missing to the Police in thase villages apart from the deceased. PW2 admitted that the dece35ed visited her frequently, and even on the said evening and the hu:iJan remains of the deceased where found at her village. PW2 also said one of persons she saw fighting that evening had a hoe which was also found at ' the scene along with the hunan reL!ains apart from the fact that blood stains led to her house fror:1 the busho He refEf;ed this court to the case of .:OONGO TUHULA VR ( 1980) T.L.,R. 2_54 wh0re thefi,:mrt of Appeal held thnt circuc.stential •·•··• 4.

.. 4 _, evidenoe is enough to prove the identity of the deceased saying that actually the deceased relatives identified the pieces of the clothes to worn b3 the decensed prior to his death,;.- .. Mr. Nangela sa.id that in the cautioned statement of Alphonce (1st accused) which the accused repudiated by saying that he did not knew how to ree.d and to write was a mere lie as the sar.ie accused signed his llo~e before this court when a preliminary hearing was conducted. He said .though he repudiated it the court can still proceed to convict the accused person by that evidence alane even without collaboration as was held in the case of GEORGE MICHilL RM ABU. VS R Cr •.. Appeal 18/94 unreported Mbeya Registry, as long as the court is sati- sfied what is said in the statement is the truth.· It was the c,:mtentbn of Mr. Nangela that what was stated by the nccused was the truth for it helped PW4 to recover the deceased bicycle which was found / at the house of Aloyce Mwanjute now the deceased.' The accused told hir.i that · Aloyce took his l11Je, Rhoda ad1:1itted seeing f,loyce with an hoe which was found lying near the rer;1ains of the deceased with blood stains on it. ' This said Mro Nangela was sufficient corraborative evidence u/s 31 of the Tanzanian Evidence, Act 1967 saying it was actually a confession leading to a discovery. More, because the 1st accused stated that after killing the deceased at Rhoda I s ,. house they went to throw his body in the bush where his reciains were aetually found. :Mr. Na.."lgela also adr;1itted that ± confession of the co-accused against the other accused persons has t,) be collabo'rated and cannot stand on its own against the accused pers,)n. · However, it was his c,)ntention that u/s 33 ( 1) of the Tanzania lividence Act, 1967, the court oay take the confessian into consideration if it is a in cor:1pulsory ne and not a discu□ pulsory cme. He alleged the said state1.1ent is incoripuls)ry and according to the facts of this cnse it is obvious that the accused jointly killed the deceased. He concluded by saying that in rmrder cases apart fro □ the act of killing there has ta be ari' intention to do so, that is malice aforethouf;ht Mr. Nangela alleged that in this case it is obvious that the accused intended to kill the de,-eed because Rhoda (Pl.11/2) fell in love with him instead of Alphonc-e who also ., wanted Rhoda. .So it is t!_uHe clear that the deceased was killed because of this girl. The three accused had a bad intention thats why they killed the

• 5 ... ! the deceased and decided to thr,)w his body in the bush where it could not be recured and clear the way for Alphonce to marry Rhoda. He thus prayed that this court finds the three accused persons guilty Jf the offence they stand charged with and c•:mvict them accordingly not to mention the accused condu,t ;r,· ... whom he alleged where liars and that they did not ran away becA.use they had sworn not to disclose anything to anyone. Unfortunately the 1st accused being Alphonce disclGsed this secret to the police leading to their arrest. Mr. Materu who was the defence counsel for all the three accused persons bitterly objected to the charge giving the accused by alleging that there WM no proof that the s2id Mohamed KigoQga was actually dead. It was his contention that there W·'.3.S no proof that the bones found where the hur:ian re1::ains of the cleceasede Secondly it was his allegation that though the accused admitted knowing the deceased there was no proof that they killed him because of Rhoda as both Rhoda and li.lphonce refused b have a 'lc.-ve relationship in court- Mro Materu also pr2..yed that the court does not consider the repudiated statement admitted by the court as the 1st accused repudiated it because he does not know ~~-.,,. to read and write and so could . not have signed the said statet1e:i::f.., He insisted that the accused never riade such a statecent though n,) ret;s•::in was adduced as to why PW4 should give false evidence that he wrote the accused state1;1ent voluntary and the 1st accused actually admitted that he was ever not tortured nor was he forced to do anything. l;.ll in all he vnrnecl the court on the dangers of considering such a stater:1ent citing the case of TUWiiMOI V R UGi".NDA. r1567 7 El, where the c~)urt held that in admitting a confession a court has to fully satisfy itself of that truth of that state:;1ent which has to be collob-o'rated. ' statenehl that this · . . ·' lOuld have collob:o::rei.tive I.. He said one would expect ezidence to support it. However that collaboration could not be attained fror:1 Rhoda nor her brother where lUphonce was said to be when the deceased was killed nor their father the o,mer of that house hold. Mr. Materu said another collaborative evidence was supv)sed to be adduced from t 1 1e bicycle tendered in court but again the bicycle was very poorly identified by fW1e PW1 alleged that his sons bicycle had the words 'Kiswele bado nipo 1 written at the chain box while Rhoda PW2 said she never read ..

~ 6 - what was wTitten on ·the bicyle. He,said PW1 never said what those words meant as it wf.JS not the name •Jf the dece3Sed Mr. nor of his clan so even Aloyce c-:mld have written those words and that the bicycle could as well belong to Aloyce. He said the police were just using the fact that Aloyce had passed ! away as a loop hole for he canrnt come to testify if the bicycle was his or not.. _I would .wish to mention her, tht apart from the fact that P,v4 said Aloyce ad.-::iitted ta have taken the bicycle from the bush wh'ere they had previously left it even his friends D1 DW2 and rnv3 said they had never and i seen hir:i with a bicycle .• ' hod1 DW1 admitted seeing the deceased with a bicycle th'Jugh they could not identify it and PW1 identified the bicycle as the one belonging so the deceased. I would hold that the bicycle was therefore proferly identified. Mr. Materu further argued that Rl-i'oda refused to have seen a h,'.)e ( Exg.P4) that nicht 1nr did she seen blood outside her house the next oorning, so there was nothing to join the accused with what was found at the scene a.1d at Rhoda's h'JUSec May I point out here tht Rhoda stated in court that she saw i.loyce with a hoe who threatened hr ~nd asked her to return inaide and she ,. did so. When the villagers traced the blood stains.up to her house, she wo.s quccti::-r:oda."ld that was when she revealed what she heard and ~aw '.)n 1t/7/94 when her fiancee went to visit her. I1.,..cid actu?-lly a hoed W"-8 found at the scene in the bush. It would be very difficul.t for this court to believe th,~t there ;:,•-: was no evidence connecting the accused at the scene and at Rh,)da' s h)use as Mr. Materu wants this court to believe.: l Moreover, Mr. Materu contended that.the alleged piece? of clothes said to be found at the scene were also very· poorly identified in that while the accused said they were colorless, PW4 said they were blue while PW1 and PW3 said they were greyish saying there was ,no proof that they belonged tcr the deceased, And that there was no evidence to prove that the alleged blood belon 6 ed to the deceased thus there is n0 uorroborative evidence at all to :1 collaborate the evidence with the alleged statement of the 1st accused. He therefore alleged the 1st accused shoulc:. not be found guilty of the offence ; charged with as he was not ~een at the scene of the offence and according to he DW4 his br-Jtherl. was at hor:1e up to ~0.31" prn when he went to sleep so he .could •• 7 ~

• 7 .... not be involied in that offence. As for the 2nd and 3rd accused persons, DW2 and · DW3, Mr. Materu contended that they have been charged of this offence simply because the 1st accused mentioned them in his stater-1ent. He said in the case of TlMAMOI V UGANDA ["_1967 J EA, it was held that corr::iboration was vital in a confession of a co accused a· thing which is lacking in this case. He alleged that all the corroborating fact•Jrs do not t0ucl:l. the two accused persons at all and that they live very far from Rhoda's village let alone the fact that Rhoda did not identify them at the scene that night. It was his prnyer therefore, that the stater:1ent made by the 1st accused should not only be used against the three accused persons because it is not sufficient to convict all the accused persons and that the accused should be acquitted of the offence charged with as the prosecution side has failed t0 prove its case beyond rectSonable doubt. The gentleraen az1d lady assessors who were asked to give their opinions were unaninJusly of the view that from the evic.ence it is obvious that the three accused killed the deceased clue to Rhoda's admission that the ·deceased was her fiancee. The accused were arrested because the 1st accused admitted killing the deceased in his stateuent arid 1;1entioned the accused who assisted hir:i in that GJUrder. They found all the three accused persons guilty of the offence charged with. Having agreed that there is no dispute that the saic. Mohaoed Kig-:mga is a deceased in this case, this court is now left with only two issues to resolve being:- ( a) Whether it was the three accused who jointly killed the deceased or not. (b) Whether it can safely rely upon the confession of the 1st accused in deciding up:::m the fate of these three accused persons. In other words I will not dwell into the question of the identity of the deceased for the issue was resolved during the preliwinary hearing ,conducted by this court and the issue of the identity ,'.)f the deceased being om I'-bhai;}ed Kigonga was agreed upon. It was ad::1itted that the hur;ian rer:1ains found as •• 8.

8 - well as the pieces Df clothes were the ones the deceased was last. seen wearing and identified by his relativeso }forever the postuoterr:1 report tendered as exhibit PW1 was not disputed at all unlike in the case of KATiil3E Ki,CHOCHOBJ~ V R ( 1986 TLR 170 where the court failed tJ believe the t l, evidence of a layrneno In deciding whether the three accused killed the deceased or not I will begin with the issue of the confession admitted in court though repudi- cated by the 1st accused, who was the □ aker of that statenento I While □aking a rulins on its admissibility clearly stated that I,was /_ adm;i,tting the same for it was V'.)luntarily r.1ade as the accused adr.1itted he 'J ·'· i:' was not t-e.rtured nDr forced to d•J or say anything. I also had no reason to believe that what was, stated was the' truth. I held so because no reason was adduced by the 1st accused M to why the said PW4 could write a false statement on his behalf while he never knew the accused before.· In faet what . the 1st accused told PW4 was what led to sor1e of the discoveries alrec,.dy explainec! q.bove. The only reason as to why the 1st accusec: was repudiating was the said state:nent as insisted by Mr Materu, r:1.efence couI1sel because he did !.. not know how to read a11ct to write so he could not ho.v-s signed on the .stater::1ent. I thereby held that he hac'~ signed during the prelii:Jinary hearing and that question of not knowing how to write never aroseo He would have used his lefc; or richt hand thur.ib if that issue arose. But again this was not so and T have no doubt thc?-t the signature on the said statement rese1:::bles the one which is on the memorandum a11d were written by the some person Etlthough I am not a.11 hnndwritting expert. Mrc ,Materu prayed that the said stater:,ent should not be relied upon as it colloborated ., ha.s n,)t been / upon anc( gave various reason which I have sumr:1arized above. Mr. Nangela proceeded to point out all the collaborative factors in. his ,gnd reply actually said that the court can proceed to convict an accused person /_ if it satisfied that what is stated in that statement is true citing the case of GIDRGE MICH/i.L R\Jf~BU stated above.. It was his contention that even without _the corroborating factors the 1st accused can still be convicted on the said statenent. r

.. 9 Having satisfied my ... self that what l the 1st accused stated in the statement was the very truth which was voluntarily made by him I believe the court can safely rely upon it in reaching it decision as to whether the accused really killed the deceased or not. I say so because apart from the discoveries it led to being revealation of the love rlationship between hi1:1 and Rhoda, the ·';~~i1J,t7 between him and the deceased ,because o:t PJ:loda, that Aloy'ee took a hoe which Rhoda admitted seeing that night which was a weapon used to kill the deceased and the hoe being found at the scene where the hucan reiains ' of the deceased were found, that f:,loyce' took the deceased bicycle which was actually found at the house of A],of•e who also admitted that the bicycle was not his., that they killed the deceased so that he c,Julc. clear his way a.."ld get Rhoda thats why they threw hi □ in the bush were no one could find him and the remains were really found in the bush while the nurder was done at Rhocta•s house which was also true for blood stains were traced fro □ the bush to that house and Rhoda admitted that the deceased was at her house that ni 6 ht and was called outside by people and she later heard people fighting, that she was asked to return inside by Aloyce who had a hoe and the deceased was later rep'.)rted to have been killed could be nothin8 but the truth as to what harpened~ I have addressed i:zy □ ind tq ),.33( 1) of the Tanzo.nia Evidence Act~ 1967 and I belfove all the three accused can be convict,3c1 by th0 -onfession 0f the 1st accused as they all had malice aforethoughto Adually the other accused had earliar atte □ pted to assault 'the c.ecee-uSed in the absence of the 1st accused but he · managed to escape. I would answer the first issue in the affin:iative, that I believe the prosecution has proved beyond reasonable d,Jubt that it was t1e three accused persons wha killed the deceased person in that had they only wa11ted t0 teach ' hir.1 a lesson, they would not have used such a weapon or would have only hit him once and warned hir::1 to leave Rh:.ida (PW2) al:Jne~ However, they had intended to kill him thats why they hit him several ti □ es until he met his death. They went furth'~r to put him on his bicycle and threw him in the bush where no one could find hir:a and left hi □ to be eaten by wild- animals. Indeed he was eaten by the wild ru1imals as planned. Worse they also took his bicycle;, How brutal of the;:,. It is obviously that the 1st accused assisted could not do all this a.lane. He was definately by the other accused person. . z

..:· 10 ,;,,i It could also not be true that he was 'at Rhoda's brother house while I I his collegues did this for he could not narrate what happened so perfectly nor would his friends do this in his absence. Morever• .Rhoda (PW2) said they were ffre people in total whom she saw that night, that is the deceased and the other four accused including Aloyce who has now passed away. It has been alleged in their defnces that the accused were at their hor:1es which are very far fror.i Rhoda I s .house but did not call their wi 'Tes to prove the sameo li.ctually DW3 went to say he could not summon her as he was not sure as to what she would say. Had he really been at home that night he would not doubt the ev.idence which she would say. The 1st accused su □ moned his I brother DW4 who adr.1itted in cc>Urt that they ate at _.00 pn and he went to sleep. He would not know if his brc,ther left th:1t night or nat as they do not sleep in the san-;e house. \rlorse he adnitted that he did not knew what he was sur,n.loned to say and was sayinG what he was asked :b say. So they were all tellini::; lies. That they did not ran away was because they believed that there plan worked out well. They only ~orgot way back to Rhoda's house. and thus their arrest; that the blood stains were rer:1aining behind tracing their Of,:mrse the st accused failed t0 stand. by his oath ,11 that•' It goes without saying therefore fro □ the evidence so far adduced and !.. considering the circui:1Stan.tial evidence a.ncl the surr)unding circUEistances of this case, the three accused pers::ms killed the deceased with oalice aforethought which is a very itJportant elem,mt in cas,es of murder. In the circurr:st1:U1ces , ·, therefore, I ar:i satisfied that the guilt of a.11 the three accused pers,::ms in ' connection with the charge of nurder as · i:-rfered against ther,1 has been der:io- strated beyond reasonable doubt. I consequently find all the three accused persons guilty of the offence of Burder c/s 1,6 of the Penal Code as charged ,, j and hereby accordingly convict them. '\ ,, . ~~:),j'./ ,( S. A. N. .JANBURD. PRINCIPi..L RESIDEi\1T MAGISTRATE ( EoJ.) 21/6/200(' .... 11;, '1

t,1~\ ·t\ f 11 - Date: 21/6/2000 Coram: S.A.N. Wambura 1 PRH (EX.J) For Republ~c: Mr. Nangela learned State Attorney. For 1-lccuseq.: Nr. Materu learned State Attorny 1st Accused: Reported dead 2nd J',.ccused) 3rd :,ccused) 4th ii.ccused) Present under custody. Assessors: 1 a Adson Ki peny a 2. To Mwakasungura Court Clerk: Jvirs_. hponzi/Miss Kasunga/Miss Agripina., English into Kiswahili and vice versa. Court:

Case: is cor.1ing up f 0r judger:ient which is accor,:lingly read and explained of the accused persons. Mr •. Materu: 1st accused: 2nd accused: 3rd accused: ___ sentence: PRINCIPAL RESIDENT NAGISTRi,TE (EoJ.) 21/6/2000 previous I w::mld not have MY - records of the accused persons .• I., I h3.ve nothing b_ say. NIL I pray f:Jr leniency as I was just menti:med by the 1st accused. I pray fJr le.niency as we were just rr:entioned by our co-accused For persons who have been found guilty of an offence .::;f murder they cannot have any 0ther sentence but death by hanging and therefore the three accused persons are S':J sentenced. ,· . S. A.. N.-,Jl,MBURA PRINCIPAL _RESIDENT MAGIR!raATE (E.J.) 21/6/2000· Court: Ri;;ht of e.ppeal against conviction and sentence is accordingly PRINCIPJ',L RESIDENT HAGISTRi,TE ( .EeJ). 21/6/2000