Wilbert Muyenzi @Masanga v. Republic, Cr app 203 of 2005 (Murder)

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

( CORAM:    MUNUO,J.A. MSOFFE,J.A. And  KILEO,J.A. )

CRIMINAL APPEAL NO. 203 OF 2005

WILBERT MUYENZI @ MASANGA............................................... APPELLANT

VERSUS

THE REPUBLIC…………..…………………………………………..…. RESPONDENT

(Appeal from the decision of the Resident Magistrates’ Court

at Morogoro)

( Luguru, PRM Extended Jurisdiction )

Dated the 30^th day of September, 2004

in

Criminal Sessions  Case No. 21 of 1999

JUDGMENT OF THE COURT

2^nd  March,  &    

MSOFFE, J. A.:

The Resident Magistrates’ Court of Morogoro (Luguru, PRM Ext. J.) sentenced the appellant, WILBERT MUYENZI @ MASANGA, to death upon his conviction of the murder of Ally Ibrahim Lityawilo on 23/1/2000 at Ruaha, Ulanga in Morogoro Region.  He is dissatisfied, hence this appeal.  Mr. Mtango Jotham Lukwaro advocated for him while the effort was resisted by Ms. Anikalo Msabila, State Attorney.

The first ground of appeal asserts that the Principal Resident Magistrate with extended jurisdiction erred in failing to appreciate that the killing could have been done by a person other than the appellant.  In the second ground, the complaint is that the Magistrate erred in not appreciating that there were contradictions in the evidence of the prosecution witnesses.  The third ground, flowing from the first and second grounds, is that in view of the circumstances obtaining under the above grounds the appellant was entitled to be given the benefit of doubt.

Briefly, the prosecution evidence was that the appellant and PW1 Bi. Asha Ally Lityawilo had been cohabiting since 1998.  On the material day at about 7.00 p.m. there was a quarrel between PW1 and the appellant.  The scene was at the house of PW1.  As the fracas ensued PW1 shouted for help.  The deceased, the father of PW1, heard the cries for help and went to the scene.  He was followed immediately thereafter by PW2 Habiba Omary (PW1’s mother) and Zamda Ally Lityawilo (PW1’s sister).  According to these witnesses, it was during this fracas that the appellant stabbed the deceased with a knife on the back, chest and abdomen.  The deceased died of the wounds later in hospital.  The post mortem examination report which was produced and admitted in evidence without objection was consistent with the evidence of these witnesses in that it showed that the deceased suffered wounds on the chest, abdomen and on the left lumbar region causing injury to the left kidney.  It  was also the prosecution case that during the fracas PW1 suffered a cut wound on her thigh; and that the appellant escaped from the scene after stabbing the deceased; and that he was at large until the following day when he was arrested by PW4 Gaston Francis Liwewa and later on handed over to PW5 Sgt. Owen.

        Mr. Lukwaro submitted at length on the first ground.  In essence, he maintained the view that there was a possibility that the deceased was stabbed by someone else other than the appellant.  There was that possibility because at time of incident it was dark and that the appellant stated in his evidence that at the material time he was slapped on his face by an unknown person, he urged.  With respect, we do not agree with Mr. Lukwaro.

        As submitted by Ms. Msabila, and we have no reason for disagreeing with her, there was no question of mistaken identity in the case.  The appellant was known to the prosecution witnesses for a long period of time.  He lived with PW1 from 1998 to 2000 when the incident took place.  There was no evidence of previous quarells between him and PW1.  The evidence of PW1,PW2 and PW3 taken as a whole showed that there were no other people at the scene at the material time.  It occurs to us therefore, that on the available evidence there was no possibility that the deceased was stabbed by someone else. On the contrary, the evidence was overwhelming that the deceased was stabbed by the appellant.

         The complaint in the second ground hinges on alleged contradictions in the case for the prosecution.  That PW1 stated that she was present when the appellant stabbed the deceased whereas PW3 testified to the contrary!  That PW1 said that the sardines she had wanted to cook for that night’s meal had “sands” but changed the version later and said they had no “sands” etc.

       

        With respect, we are in agreement with Ms. Msabila that contradictions, if any, were minor and did not go to the root of the case.  The witnesses were consistent on the material aspects of the case that the appellant was involved in the quarrel with PW1 on the day in question.  The deceased went to her rescue followed by PW2 and PW3.  Finally, they saw the appellant stab the deceased.

        The third and last ground is essentially a conclusion on the first and second grounds. In view of the position we have taken on the two grounds there is no need for us to discuss this ground.

        In the upshot the appeal fails and we dismiss it.

           

DATED at DAR ES SALAAM this       day of March 2009.

     E.N. MUNUO

JUSTICE OF APPEAL

J.H. MSOFFE

JUSTICE OF APPEAL

E.A. KILEO

JUSTICE OF APPEAL 

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