AUGUSTINO KAGANYA, ATHANAS NYAMOGA AND WILLIAM MWANYENJE v REPUBLIC 1994 TLR 16 (CA)

 

AUGUSTINO KAGANYA, ATHANAS NYAMOGA AND WILLIAM MWANYENJE v REPUBLIC 1994 TLR 16 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Kisanga JJA, Ramadhani JJA and Mnzavas JJA

G CRIMINAL APPEAL NO. 63 OF 1990

15 November, 1991

H (From the decision of the High Court of Tanzania at Morogoro, Bahati, J)

Flynote

I Evidence - Evidence by witness of tender age - Witness aged fifteen years -

Whether needing corroboration.

1994 TLR p17

Evidence - Credibility of witnesses - Trial court best placed to determine credibility.

A

Criminal Law - Murder - Malice aforethought - Attacking a confessed thief with

knife, club, fire, and utterances that he would die and be finished off - Whether

establishing malice aforethought. B

-Headnote

The appellants were convicted of murder contrary to s 196 of the Penal Code and

sentenced to death. They appealed to the Court of Appeal.

Their Counsel submitted that the evidence of PW3, Kayowina Mkuya, should not

have been relied on by the trial court as the witness was of tender age and as such,

her testimony needed corroboration. C It was further argued that they should have

been found guilty of the lesser offence of manslaughter because they were merely

beating a confessed thief and they did not intend to cause his death.

Held:

(i) As PW3 was fifteen years old when she gave her evidence on oath, her

evidence did not need to be corroborated before being acted upon; D

(ii) As the decision regarding who attacked the deceased was wholly based

on the credibility of the witnesses, it is the Trial Judge who saw and heard the

prosecution and defence witnesses as they testified who is better placed that the

appellate court to assess their credibility;

(iii) In a charge of murder, only where it is doubtful on the evidence that

an accused intended to E kill or cause grievous harm to the deceased will the Court

give the benefit of doubt to the accused and find him guilty, not of murder, but of

manslaughter;

(iv) By their acts and utterances the appellants amply showed that they had

formed a positive intention to kill the deceased.

Case Information

Appeal dismissed. F

Cases referred to:

1. Kasmiri v R, Court of Appeal, Criminal Appeal No 148 of 1990

(unreported).

2. R v Byarushengo and Another [1946] 13 EACA 187.

3. R v Kibia Arap Serem [1940] EACA 73. G

Mihayo, for the appellants.

Miss Chiwanga, for the respondent.

[zJDz]Judgment

Mnzavas JA, delivered the following considered judgment of the court:

The appellants were convicted of the offence of murder contrary to s 196 of the Penal

Code by the H High Court (Bahati J), and sentenced to death. Dissatisfied with the

finding of the lower Court they have jointly appealed to this Court.

Arguing against the conviction of the appellants Mr Mihayo, learned defence counsel,

submitted that the evidence of PW3, Kayo- I

1994 TLR p18

MNZAVAS JA

A wina Mkuya, should not have been relied upon by the trial Court as the witness

was of tender age and as such, it was argued, her testimony needed corroboration

before being acted upon to the detriment of the appellants. In support of his argument

the learned counsel referred us to s 127(5) of the Evidence Act 1967 and the decision

of this Court in Kasmiri v R (1). It was also submitted that B the evidence of PW2,

Yusufu Rajabu, should not have been given any credence as it was evidence of an

accomplice which needed corroboration. It was argued that as PW3's evidence

needed C corroboration she (PW3), could not have corroborated the evidence of

PW2.

In the alternative but without prejudice to the above argument Mr Mihayo submitted

that the appellants were punishing the deceased who was a thief and that they did not

intend to kill him. The Court was therefore asked to find the appellants not guilty of

murder but guilty of the lesser offence of D manslaughter. Miss Chiwanga, learned

State Attorney, on the other hand supported the convictions. She argued that PW2

was not an accomplice whose evidence needed corroboration before it was acted

upon. As for the decision in Kasmiri v R (1) (supra) Miss Chiwanga submitted that the

facts in E that case are distinguishable from the facts in the present case.

It was the learned State Attorney's argument that the decision of the High Court was

based on the credibility of the witnesses and that the trial Court was in a better

position to assess the credibility of F the witnesses than this Court. The Court was

invited to dismiss the appeal.

The case for the prosecution that it was the appellants who, of malice aforethought,

killed the deceased was supported by a neighbour of the deceased, (Juma Mchewa),

one Yusufu Rajabu, G PW2. According to the evidence of Yusufu while he was at his

house on 6 August 1987 at about 9 pm he heard an alarm from his neighbour, the

deceased, who was saying that he was dying. He ran to deceased's homestead to

render his assistance. There he met the first appellant who was armed with a knife. It

was Yusufu's evidence in the lower Court that he heard the first appellant saying to

the H deceased `you will die if you come out as you have stolen the property . . . of

my brother'. At the time the deceased was inside his homestead. The witness also told

the trial Court that the first appellant, Augustino Kaganya, then set the house on fire.

On being asked by PW2 why he was torturing the deceased the first appellant is

reported to have I replied that he was torturing the

1994 TLR p19

MNZAVAS JA

deceased because he had stolen his (first accused's) brother's property. A

When the deceased managed to get out of the house which was already in

conflagration and got into another house the third appellant is said to have set on fire

this second house and said `they were to finish off the deceased'. The deceased again

escaped from the second burning house and ran into B his shamba.

According to the evidence of PW3 the appellants chased and arrested the deceased

and belaboured on him. The appellants were, according to the evidence of PW2,

armed with a knife and a club. On the following day the witness was told by

Athanasi, the second appellant, that Juma Mchewa had C been killed.

A step-daughter of the deceased, PW3, gave evidence to the effect that on 6 August

1987 at about 7 pm her stepfather returned home from a pombe shop and told them

that while he was at the pombe shop the three appellants wanted to kill him because

they alleged that he (deceased) had stolen D cooking pots from their relative.

As they were outside the house conversing, and the deceased smoking his tobacco,

the first appellant emerged and snatched the tobacco from the deceased and stabbed

him with a knife. E According to her evidence the deceased ran into his house and

the first appellant set the house on fire and stood at the door brandishing a knife.

Like PW2, the witness also testified before the trial Court that when the deceased

took refuge into another house William, third appellant, set this second house on fire.

F

When the deceased escaped from the second house the appellants chased and caught

up with him and attacked him. According to the evidence of PW3 the deceased cried

out `let us go so that I show you where the things are'. Next morning deceased body

was found lying in his shamba. G

In his defence first appellant denied knowing the deceased leave alone killing him. He

advanced defence of alibi and said that Yusufu, (PW2), told lies against him because

there was enmity between them as he, (PW2), believed that he (first appellant) had

reported to game scouts that he, H (PW2), was manufacturing bullets illegally. This

defence was apparently not believed by the learned judge and in our view rightly so.

If there was indeed such enmity one would have expected him to cross-examine the

witness, PW2, on the alleged bad blood. That he did not do so tends to show that his

defence of enmity was an afterthought. I

1994 TLR p20

MNZAVAS JA

A The second appellant, Athanas, also denied attacking the deceased. He said that

he saw the body of the deceased in the morning as he was going to his work and

reported to Yusufu, PW2, what he had seen.

B The third appellant, William, told the trial court that Yusufu had deliberately told

lies against him as to cause his undoing because they had quarrelled over a girl. Like

the first appellant he did not cross-examine Yusufu on the alleged enmity when he

gave his evidence. And, like the first appellant, he did not tell the trial court why the

young girl, PW3, should have decided to cook up such a serious C story against him.

Coming to the learned defence counsel's argument that the evidence of PW3 needed

corroboration because she was a child of tender age the record shows that PW3 was

15 years old and gave her evidence on oath. Section 127(5) of the Evidence Act relied

upon by the learned defence counsel in D support of his argument says:

`For the purpose of ss (2), (3) and (4) the expression "child of tender years"

means a child of or below the apparent age of fourteen years'.

E As we have already stated above PW3's age was fifteen years at the time she

testified and gave her evidence on oath. Her evidence did not therefore need to be

corroborated before being acted upon.

As for the decision in Kasmir v R (1) quoted by the learned defence counsel we, with

respect, agree F with Miss Chiwanga, learned State Attorney, that the facts in that

case are clearly distinguishable from the facts in this case.

The decision of the High Court regarding the question as to who attacked the

deceased on the G material night was wholly based on the credibility of the

witnesses. The learned Trial Judge saw and heard the prosecution and defence

witnesses as they testified. He was therefore in a better position to assess their

credibility than this Court which merely reads the transcript of the evidence.

The learned judge came to the conclusion that PW2 and PW3 were credible witnesses

and that their H evidence was a true account of what happened. We see no reason to

differ with trial court's finding of fact.

As to Mr Nihayo's argument that the lower court should have found the appellants

guilty of the lesser offence of manslaughter because the appellants were beating a

confessed thief and that they did not I intend to cause his death we would like to

restate the law

1994 TLR p21

that in cases of this nature it is only where it is doubtful on the evidence that an

accused intended to A kill or cause grievous harm to the deceased that the Court

would give the benefit of the doubt to the accused and find him guilty, not of murder,

but of manslaughter see R v Joseph Byarushengo and another (2) and R v Kibia Arap

Serem (3). B

In the present case the evidence of both witnesses, PW2 and PW3 shows that the

appellants used a knife and a club in attacking the deceased. The first appellant's

utterances to the deceased that he (deceased) would die if he escaped from the

burning house amply demonstrated that the appellants wanted the deceased to

remain in the house they had set on fire and be burnt to death. Equally the C acts of

the third appellant of setting on fire the second house the deceased entered for refuge

and his (third appellants') utterances that `they were to finish off the deceased' amply

showed that they had formed a positive intention to kill the deceased. D

On the evidence we are far from being persuaded by the learned defence counsel's

argument that this was a case of manslaughter. On the totality of the evidence we

agree with the learned Trial Judge that the killing of the deceased by the appellants

was with malice aforethought. We agree with the learned State Attorney that the

appellants were rightly convicted of murder and we accordingly E order that the

appeal be dismissed in its entirety.

1994 TLR p21

G