Republic vs Philipo Kijumbi (Criminal Session Case No. 31/1997) [2000] TZHC 558 (23 June 2000)

THE HIGH COURI' OF T.1-i.NZANIA . 1\T MBEYA .· ORIGIN.1-'.L JURISDICTION (Mbeya Registry) CRIMINJ-i.L SESSION Cl\SE NOo 31/1997 THE REPUBLIC . -VERSUS·' .. PHILIPO KIJlJl'j_g · t JUDGEMENT WfilviBURA PR-'i (E.J o) ---- __.L. __ ... __ Before this court, the accused one Philipa Kijumbi staiid.5 charged of .:, . : __ ,,,, 4''' the offence of murder c/s 196 of the .Penal Co<l.e~ ·.He· deriiecf'the charge and • the:tefore the prosecution sumn10ne~. three witnesses· f6 prove the same. The facts of this case in brief are that on ·7/12/93'Pw1· Shaban Isr:,ail ' ' Mchorne found his house br~en into apd. a khe.nga, floU:f and a gallon of water as well as a ~hen as it was rep::>rted. to l?ian6R Taikoo Ph/2 where stolen. Since he suspected no one they decded, .to ccmdu·ct ci.. ·secretive search. hpparently even the accused heard of thi$. theft eJ3 he was present when the report was mad,_e. It was ::m the f ollowin,g day that is ont'lf~/,3 when PW1 was going to the river to bat_h~ h13. he saw the accused peNon wearing his khang?,• He was with s,::>me other three. persons and a herd of cws. He again < ·· reported the same to PW2 who su,3gested that he should report the same to Sungusungu who woulc1. as_ist them, to ar,rest the said persont3~ . f.ain the accu-c1- s.aid he heard of the news of rc0n±n 0 cows ancr a report on the search ... .,.,;. . .· .. ·. . . . · of the stolen cows on 6/12/93 but was,_not specific as to the tine. 'Saying it were M.dundo I s children who _said s90 • (L According to PW1 he reported the same to Sungusungu o.ncl though they waited ,. for t~~nz ,with PW2 they did not turn up that day. PW2 confirmed this by saying he left PW1 1 s house at a bout 8. 00 pm and Sungusungu had not arrived. · PW1 went on t'.) ir1form this court that Sungusun&,1l went to his home the next day at 6"00 an he went with them to the river:. They did not go with PW2 On arri'.".ing ••o2o

• 2 - there they found 'the cows had ·b·eri°' removed and on following the cows hoofs they l!lanaged to · ,±riv at· another destination where the cows were taken. ico'rl(hng' to him the/.,rere · ubl~ to arrest two (2) accused person one of them being the accuse'd here in court. The other two managed to escape·., They also got hold of the 20 cows and together with the too accused took · __ · 1,/-:._·•:·•·. ;· them to the ten cell leader·, PW2 who admitted seeing them at about 1. 00 pm~ The accuse?:-tho;-1gh sa;ict while at Mswisi where he had gone t.o visit his mother in law who was sick as he lived in Muungano village, he slept there . . ~ . . . . _____ .... , . •. ------··· apft:the fllowing day while with .brother ,in law one Patrick Temu Sungusungu approached them_ and ,a,sked then ._to g·J . and help search for stolen cows They left and during the search they met another group of Sungusungu which had already arrested some 21• cows. The leaders of the two groups exchanged words . 'and it wns a-lleged tha"t and· his brother in law where the thieves and were .. · .. taken to the ten cell leader PW2 by thE: s.aid Sun 6 "USun&,"Ue .· ' ,--:,;- '' " Leaving apart the different stories as to how the accused was arrested, it is not in dispute that it wa..s by Sungusungu and that they were two with { :; ? . f,}• . ,_o,;. th 2 1 & hoe..!r, of cows and they were taken to the ten cell leader, PW2. PW2 alleged that he ked the.accused if the cows were theiI13 and they refused. Te-ey C,)nfessed that they had stolen the said cows fr,om Madabaga . after· killing p person in the bl.U3h who was herin,s thea1. They were then taken to the head of Sungusungu to.spend a night there before being taken . . ._ • .·.· . : . ··,!" to Ikonga j:;iJ.. ne;x:t dayi Though PW2 said th accused did not disclose the name of the deceased, PW1 sai~, he heard the accused one Mhefeli.· I will come back to that +ater. say they killed The following day being on s:1~.93 PW2 followed the accused and . Sungusungu to Ikonga where he only saw sne _accused person here in court,. .H.~ said he was told that the other accused ha.ct escaped. The accused (DW1) testified that they we"J:,e tortur~.c::l that .. n:i.ght UI1ti1 the other accused that brother is hi[ in; law :pass:;d avlf-Y and its. not true that he escaped. Be it on it may, its not disputed that only one accused arrived at Ikonga and was handed over to PW3 a police officer one Cpl. Kamaniko; with the said 26 iQws.;

I ., .. It ,was PW3's. contention• that on questioning the accused he. aclr::itted killing ... : a per.son r-hose nam~ he haclfogotten ond'stealing the cows.which had been honded to the owner who(3e name he had also forgotten as was ordered by the frimary --. .. _ ··-- ........ ~~=--- · - . .:...: - ,·, -··. The .said order was tenaerett"--±n--c-ourt as exhibit P2. He conceeded that the accused did not sign on the said handing over ore.er. He also said he did not write th, accused statement as he left that to be done by his fellow investigato:r 9-drpittip'!liii.at 'ff was a "grdss miste,.ke if the same was not clone by his co-investigator or before the Primary Court Magistrate. I wish to note here thatDW1 alleged -that a12ar~ .fr.on. being beaten at Sungusungu he wEJ.S also beaten by the said Pw3· ir;i.,, ;th1:; ca:r while taken to Rujewa Police Station and that though the Primary cov.rt r.iagistrate (PCM) ·· -- ;. . - _ .. . ....... --· token ·· ·- · ordered that he be treated he -·was notLfor the said treatment by the police. Its worth noting here that he admitted that he did not complain or report of t~'1e "b~atings~~he:~fl.B,J..:i.11.as..§_t.<;1.ting it -for the f:.rst time in his. defence. Neither he nor his advocate Mr. Materu questio.ned PW3 nor PW2 on, the so.id beatings. Actw,dly PW2 categorically stated :that _DW;l die. not make such a corJplaint b him nor did he ap1)ear to,. be beaten the next day and even after being arrested by SungusUhgu. lii.'his defence- he refused to have acL."llitted of having kiiled Mlefeli. He even refused to have o.dmitted to PW2 t.md PW3 that he killed anjone 'saying. he ·neither knew Mhefeli nGr the deceased one Fadhi11 ) o · Saidi. · He also Jchni ttecl that he did not reveal the (:lea th of Patrick nor did he actpt tb:·hcwe ·oe-en :with Seperw::. who he revealed was a rich herc1sr.ian when he was arrested insisting that he was with Patrick his brother in:law. In his ·sub □ issions Mr. i1ateru who w,:IB thG ac;9,wed defence counsel prayed ... · before this court that the prosecution had miser:,;i.bly failed to prove the case ·against the accused beyond'reasobale doubt and should accordingly acquit him of the offnce charged with. 'It was hi$ .conteti_on that the only evidence which the prosecution was r;lying updn was on the ral admission of the accused person who is said to have admitted killing the d;e.ceased. However,. it was alleged by .i PW1 that he heard the accused tell PW2 thtd: hi;l killed Mhefeli while PW2 who i:t::;# r was the questiomilg the ac·cusd said the acq;i.s(3¢[ did not reveal to hir.1 the

... I ,t' l• 4 name of the person they killed in 0rder to steal thl:)' cows they were arrested with. PW~ said the accused admitted .killing a person whom he did n0t r:ientionc. It was his submission therefore that the witnesses were ntt telling the _truth as the deceased was one Fadhili s/o Saidi and not 'Mlhefel:i'. · This contradiction was a very great one in a mrder case acording to Mr .. Materu distinguishing it from the case ;:i DPP VS NlJRU MOH..2J"iED GULAM RASUL (1988) TL:R 83 which Mro ,:· ,:.;· B.::miface quoted,. In that ca'.se it ~as held by the -CA that. an oral confession was sufficient to convict the accused if it is proved that' the wttnesses were stating the. truth. He prayed tli.at!this court btllieves ·his witnesses as having stated the truth he;.e-:-in courf and' convic_t the accused.: accordingly as he admitted . "i'; . •;_ -- ; killing the deceased with a panga.'and lo6°king at' the· postmoterm report ( exhibit P-1) the deceased was deeply cut and it corroborates ·the oral admission of the accused which does not have to always be in writting as -stated u/s 33 '(a) of the Tanzanian J!.\rider1ce Act,'.l'-67. Mr. Boniface admitted that there were some sta.'Ylent .. cont'radictory · . . L between PW1 and,PW2 on the items stolen but asked this court to dispense of the theft contradictions being :eurable ., one. as the case is not of but of murd'.):::- . . . L and· is ot ·disputing the crucial 1ater:i.a1:· .I agre with him on thato However, he did not suggest what the court should ·do on the inconsistency of what the · accused actually told his witnesses., · I will deal with this later. Mr. Materu had also submitted that aparent frcm the oral admission there is no other evidence that the accused killed the deceased. More because even the c.ows which the accused is alleged to have 'been arrested with were not properly identified with specific ·f.lark apart from the sex and color things which are very common. He further alleged that their ovmer is unknown., Replying. to this Mro Bonifo.ce alleged that once we accept that the oJws were stolen and in stealing the cows a person ·was killed then the question of the owner of the cows .ia not necessaryo This wruF'bitterly abjected to by Mro Materu who insisted that there· should be stric-t identification of the st::il r· . . . +· . no.,ing . cows. Is worth . /.,,. that I .will not dwell on· this issue as th(;, co.se is not ·- of cattle· theft at the moment but that of murder arid so' -will not waste time on it here. As to whether the accused was or tortured by Sungusungu or not is definately not tr:r• for he admitted stating that for the first time here in courto·,

.... 5 However-, as stated by Mr •. Materu there. is doubt as to. why•'ho -.witness fr0m ·sungus1.ingu was summoned to disprove ·this allegati-::m and to: state how the otin accused esc·apedo It is unknown if lie reclly escaped or was released ·or eve:1 really tortured to death so far. The opinion of the acly and gentlemen -assessors was anonimously that since the accused was found with stolen cows which he admitted that they . ; were not J;lis ,;Ulcl :n,o. 0ne elE>e claimed to be the owner of those cows accept : ' ,:, · : . ·. . - '. ' .- : the prson _wh:1 .,t,h ,cows -Jere._ handed over to a.nd who act1.1al=!,.y hacl,: h;is cows stulen and his herdsman killed ,W.''. beng cut_ by a panga which. the accuJ:;ed ac1.rnitted and was provedby the doctor in his postmoterm report (exhibit P1) .... then its obvious that the oral arlrnission was tr_ue and the accused should be . ·j .·. . ·-· ...... ,. .••··•.-- .. --------·•-'!"""""'0.~~ .. -· ---·--: .::,,, fow:i,d gμilty of the offence charged with. Its now ,upon me to decide the purpuse of this jud.gel!lent. !lo • :'·:- • .::' Befpre .dPing so. I wish to point out that in order. that a case of murder ···,,1_; , .. _ .. :, ... ' . .. is proyec:l. there has to be a person killed. Killer has to have had malic0 :•- af'orethought in doing soo In the case befrJre me there is no doubt that the deceased Fadhil:i, s/o Saidi _who was a herdsman was killed very >bruta.lily by -;..!·.: being cut wi.th a panga severtl times and in differcmt parts of his body as ,·'.,'fl evidenced by the postmoterm report (Exh.P1) tendered in court. The intention ,--·· ... is_ ).l.Ildisputed tha_t it was to steal the cows which info.ct were stolen nnd are now alleged. tc, )la:v_-e been fully. r_E:cnY-eredo Its the allegat irm cf the prosecu-• . · . .:_· :.::·., ... _. ' . - ......:.. ------~~-·--- ·-·-··-1, ____ _; ____ ~~--. -.-- tion that the killer was. alcmg with others who had escaped leaving the accused here in the dock today. The defence is_fo:r-cefully disputing the-sameo It is for this court to. decide whether or not_ the_ accused killed the deceasedr Tho gentlemen and lady a.ssessors ananimously said he dido I have a few thin5,s + say befoe giving my final judgement. Frcm the eyidence so far add,uced in court I would say that it is not i:-: dispute that the accused is an alleged cattle trader, was at Munisi when he was arreted, heard of the _stolen clothes, flour and water as well as cous c'1 ,~ 6/12/93. Its also not in dispute that he with either Patric' or Seperwa ,.- 1 .:---·1 arrested on 7 /12/93 for alleged cattle thefto The only dispute is on the mc:.'1"''.:r and place of arrest already explained above.. That he was hancled over tci tl-n police on 8/12/93 along with the alleged stolen ccwso His co accused ei the·:- escaped or was kille(l at SuJ1gusungu the previc.us night. That when the 2.ccuswl

6 arrested was l . he oro.lly admitted to have. killed a person when stealing the cows by use of a panga.. Thatsa herdsman was killed by a panga find his cows stolen. Two importent issues were sur;posed to be• resolved here by this court;.":'" ( i) Whether the cows which the nccused is alleged to be arrested with where the ones stolen from the deceased Fadhili s/o Saic'·:_ a herdsman found dead in the bush or not. (ii) Whether it was the accused who killed the deceased then stole the said cows which he was ?llegedly arrested with cir not. -- I -had s_tated er.J.rliar that 1 woulc. not dwell into the first issue on the cattle am theft so I will not do so now either. Thi.s"' means I left with only one issue L to resolve wh8ther or not the accused killed the deceased •. In the case of DPP VS NURU MOHiiHED, qULI.J1 Rt.Sn'. (1988)· TLR 8 i;h Court kppeal held that the admission rn;;i.cle by the respondent an.cl heard by reliable •witnesses was sufficient by itself t:) have founded a conviction •. Mr. E3.teru said. thnt while in this case where witnesses were reliable in the present case there were contradictory staten,ents ill1d so the witnesses should not be relis: ·. up9n saying that it is impossi.ble that the accused admitted stating he kille(' a person ond nnother hear the rn,ne which in actual fact is not that of the · while the o.ther, does not benr the same,. deceased, .- It was abious the prf.)secution. witnesses should not be relied upon L . . due to this inconsistency•- As aforesaid Mr. Boniface did not reply to this. However, in the cn.se of MJ,GENDO Ph.IL and f-u!OR V R ( 1993) TLR 219 in deciding where there is strong circumstantial evidence ancl ·there is a remote possibility left in fo.vour of an accused, whether there is .sufficient proof of a charge-established it wo.s held that if such a remote possibility ca..'1 be easily be dismissed, the C'-'.l.se ; 'is proved beyond 'reasonable doubt. , ·I wouicl believe tI1e,t the gentleman aqd lady assessors · werE! led by Mr. Bonif0.ce that the inconsistency -in what DW1 admitted to PW2 at the pres"'ri.ce , of PW1 and to again to PW3 could easily be dismissed with and thats why they f0und. the accused guilty of this offence. With great ,respect to their findi.r~-, I hereby pray to c'.iffer with thew. I will give reasoris why_

... , .. · It is a known principal in law that in criminal offences the standard of proof is that of beyond reasonable doubt and this duty lies on the prosecution. The cases of ErnvARD DICK MWii.KAMELA V R ( 1987!_=~ 122 and SAIDI HEMED V R U .. _87) TLR 117 are some of the cases which held so to riiention but just a few. Ith .further been held.fo the case of JEm'iIAH SHEMWETIA V R (1985) TLR ·t: '· 228 that the dis crepcincies in the various accounts :Jf the story by the prosecution witn8$Ses- give rise t::i some reoscm.::i.ble doubts about the guilty of the appell.ant., Since in finding .th€:; accused guilty of the offence charged v1ith this court will be fully relyine; on the oral admission of the accused to PW2 and PW3 and as PW1 -heard them it is very important that there is consistency in what the accused actually told then. In the case of DPP V NURU MOHl,MED GULf.JI! already cii;;ed above the evidence of PW1, PW2; P..-'1.3 .and PW4 was not only consistent ii but the admission on w~ actually recorded in writting.. This is n6t the saPJe ·.:. . . in the cape before us.,. All witnesses who heard the alleged admissiDn have .. _ • · . . the . a different ,version. Morever . , ::i.ccused admission was not re-corded and no I ,., ... I- reason was, adduced to that effect. If it was at all rsc,Jrded one word.ers why it was not tendered! in court as exhibit giviri._g raise to sor(]e doubt as to whether I the accused made su,h an acltision at all.- In th.e case of MOFJ\JviED Si.ID MATULl. V R ( 1995) TLR 3- the Court ::Jf Appeal held that wheire. the ·testimorifes by witnesses c 0 nta~. C'..)ns.istencies _:i~~tradictions,, the court has. a duty 'to addess the inconsistencies and try tb re.solv~ them where possible; else the court. has· to decide whether the inconsistencfes, and contra- dictions are only r.iinor or whether they go to the root of the r.12.tter. I would agree with Mr. Boniface that the inconsistence in the stolen items fror:1 PW1 's house as sto.ted by PW1 ·d P2 is very 1:;inor. · However, I believe that what ,.J;c - - o·- ·,f - .. ·· DW1 wo.s heard to have said goes to the root of the r.1atter and there should be no inconsistency nor contradictions at all on what he ±fr alleged·to have or'r.u.ly Z admitted. I admit that the dece2Bed was tmutnrily · killed. However, as further held in MOHf;MED S1UD Mii.TULA 1 .S CASE C cited above, that upcm a charge of murder being preffered., the onus is always on the prosecution to prove not only the death •.. 8.

8 but also the link .between the' S·B.ict· death nnd the accused; the ') nus never -• .·.shifts away from the prosecution and no duty is cast on the appellant to establish his innocence. I a".'1 of tl,e view that this burq~t..-of linking the ____ :::·~~§.aict:-eJ:e-itli -~d the aGCU$ed has not been fully discharged bjr the prosecutions a reason which has □ade me differ with the gentlenen o.nd laczy assessors in .. . .} · .··assessing the evidence.. Probably the evidence woulct:4 9 ve been sufficient enough for a convicti?n 9n a charge of ce1.ttle t_heft bμt.Jtam not 'l'rure co I did not look at that in,leb.th. ",. ..· > Having stated the :r1;,a.sons why r have b.::en led to differ vhth the . . ; . gentlemen anc.l lo.dy k:ses,s,_or$., that '1.s tl1 inconsistency h?tirrt:i'ert what PW1, PW2 DJJ.d PW3 heard th_e ,accusd- as stating in his oretl:,cJc.clEissiort which again .•. .--:-...:.,·: .. . . . .. - ; ~ -; - '· !::' . >- .. : was· not recorded or if. re9,orded was· rit tcnderec"'. in court all~ acts which . . .... could'be cfo11e by the pro.scpution but·we have n)t b?en riven ·2, ie2s::m why .·,·:·-··,.!,. ·-· .i . . . :this wui 6t doe. ,. It _is my opinfon ''i::it the rosecution nt tl1is point "fled to fully dischare:e jts duty beyond reasonable _clubt.ancFI ciccordingly ,·•· grant thEi accused the benefit of, this doubt which is whether he really ar:1itted of having committed the offonce to PW1, PW2 and FW3 or not. He is •· accordingly acquitted of the qffnce o:f murder chari;ed with. He sh,)uld be , set, frJe frw1t:ikt'ely if he is _not in lawful custody in respect of MY other . offence., AT.MBlWA ,Fo.r the Republic: F0r the 1-i.ccused: . . . ' PRINCIPAL RESIDENT MAG.Lffi'RJ:,TE . C'EX.J ~) 23i,;2000 Mro Bonifnce (SA) Mr. Materu (Adv)

.., Date: 23/6/200ft· ; .. Cora.-n: Assessors: 1. Alipipi Mwajwc'lngo 2. T. Mwakasungura 3. H., Kipenya For Republic: fJir. Boniface learned State Attorney. For Accused: Mr. Materu learned Advocate Accused person: Present under custody. Court Clerk: Mrs. Mponzi/Miss Kc1Sungi/Miss Agripina. unless Order: Accused' should be set free imriiedfo.tely t~ .__,he is lawfully held in respect of another offence. : ( Court Right of appeal is hereby accordingly explained.