Republic vs Tareto Serikoki and 2 Others (Criminal Sessions Case No. 23 of 1989) [1991] TZHC 2662 (23 July 1991)

E.N* IvIQWLJO,,.L} ~ IN THE HIGTI COURJ.1 OF TANZA.l'JIA AT }IDSIII ORIGINAL JURISDIOTION CRIMINAL SESS. C11SE N0.23 OF 1989 TiIE REPU:,JLIC Vi!IRSUS . 1, T.ARETO ,::; illIKOKI 2. . MICHAEL L. MOLLEL 3. YOHANA ·vENDI The three accused persons namely Accused no.l Taretoi Sarikokii Accused No.2 Michael Lasika:i:a Mollel; anc1 Accused No.' 3 Yohana Wendi; are. jointly charged with 2 counts of r.iurder c/s 196 of the Penal Code g- Q9~~t ,11,- Murder o/s 196 of the Penal ·co e. It is alleged that on the 15/9/1987 at Raf iki FarrJ. in 1./est Kilimanjaro · Within Hai District in Kilinanjaro Hegion the three accused persons murdered one iiango Mwanga., QQ_ut 2- Murder c/s 196 of the penal code. It s alleged that on the 15/9/19D7. at 1 1.iki Farn in \Jest Kilimanjaro within Ha.i District in Kilimanjaro Re;:::ion the accused persons jointly ourdered one Michael Didas. •· On the· afternoon of' the 15/9/1987 cattle rustlers invade<;!. Rafiki Jaxm in West Kilii:1anjaro within Hai District In that raicl 2 eraployees of the Rafiki ··Farra were butchered by the cattle rustle11s. The two deceased et1ployees were ' .. Hango Mw2nga, a herds;.1an and .Michael Didas 9 a watch11an. A third victiLl P.W.2 Faturaa IIai1go/ the widow of the late Hango Mwanga was shot in the right thigh but she fortunately surved. '.rhere is no d.ispute that Hango Mwcinga and Michael Didas were killed by cattle rustlers a~ about_ 5.00 p.m. on the r:iaterial day. P 0 W.1, P.W.2 P.W.3 and P.W.4 saw the b,.odies of the t1,vo deceased. PostmorteLJ examination report was performed on the deceased. • .............. •·• ,/2

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• 2 _, Per the postraortera exar:ri.natin· repori 7 E.hi'ui t P1 the late Hango Mwanga '• - died due to severe brain contusion, subclurai haeniotor.ia and severe haemorrhage. / The postmortem examination report, Exhibit P2 states that the late Mich.'.lel ,,! Didas died d.ue to u'a,11't;, .. ,-e abdominal injury and gas gangrene. Both, Hangc3: Mwanga and Michael Didas therefore died unaturally from fatal w9unds inflicted uJon them by cattle raiders on the 15/9/1987 at 5.00 pt1. '.at the Rafiki Farm in l'/est ICilir:1anjaro .:within Hai District in Kiliraanjaro Region. They have since died and.are no longer alive. As to who killed t1?.e deceased, P. 1 .1.3 Saoson Paul implicated the three accused persons, P.w.2 Fatuma Hango inplicated only Accused No.1 •raretoi S?,rikoki while P.W.I Asha Ha.cled suspected only Accused No.1, ... Each of the three accused persons denied the two counts of nurder. Each of thera olait1ed that he ,was at his respective home when the r,mrders occurred so he was not a party to the murder in anyway. The issue is whether the three accused persons severally or joinly t1urdered the deceased Hango Mwanga and Michael :Jidas. Doth assessors doubted the participation of the accused persons in the 1:1Urders / ch2,rged owin,:; to the scanty evidence against then. Th2y observed that whereas P.W.l Asha Hamed said that Accused No,l wore a Masai 0 rubega 11 and "lukari4 " ,, (red ochre) on tho material day P.W.2 a.1d P.w.3 stated that accused No. 1 was in ci vii'ian clothes. In particular P. vi, 2 otci.tod. that accused No.l Taretoi Sarikoki wore a greyish cum whitish jacket when She saw hit1 shoot down Michael ,, ,Didas and herself in the thigh. 'I'he assessors were· of the opinion that the ·iJentification of the accused persons was not wa.tGr tight,so the court should find them not guilty of the offences charged. . ' I an i'n full agreenent with tho views of both assessors. The fact that P,W.l Asha Har.1ad saw accused No,l in 11 rt1boga 11 and 11 lukariau s}:lortly bi(?re the shoatirig whereas P.:tv'.2 said that she ·actually saw aocsed No.l in ordinary clothes,· a- greyish cur.1 whitish jacket 2nd without the rvb,ega or lukaria during ·Cost doubt on the iQ,EW.ti ty ,of the accused• the shooting as he ascended on the sha 1 Je from the river. LJ:,;Vi,5 oamson ~ : .,. Paul too said that accused No.l was in ordinary clothes, not the traditional N2.sai att~~e when he spotted the te·e accUBed persons 1riving away the 310 goats they had _-aided from the 1 tajf iki Farm during the shooting and butchering of the d~ceas,ed.

The contradictions in the identification .of accused Nol Bean tht accused No.l was •2i th-;r not one· of the bandits or tho eye wi tnosses did not identify the bandits properly,. There is hardly <¥1Y evidemce against accused no. 2 and 3 •. Under the circumstances the acc11sed persons Dust be found not guilty of the charged offences owing to dou.'otful id.cntif ication of the A-oeused. Accordingly 1 find each of the three ac6u.sed persons not guilty of the offences ch 8 rged. The three accused are acquitted. It is So Ordered. At Moshi this 23/7/1991. E.N. }flJNUO ~ 23/7/1991. Hepublic i- J'firs. Su.111ari, State ..:ttorney Defence Counscl1-- Mr. Marur.m for Ist accusedg- in person 2nd accused- in person 3rc1 accused~- in person \ ' C/Ci- :.nanca 0 hao Asossorsg- both·present Assessors thanked EN11 RLKJ and Di . ::;;i J 1 E.N. MUNUO J Ju.OGE 23/7/1991 \ I