MWITA WAMBURA v REPUBLIC 1992 TLR 114 (CA)
Court Court of Appeal of Tanzania - Mwanza
Judge Nyalali CJ, Ramadhani JA, Mapigano Ag JA
29 May 1992 H
Flynote
Criminal Practice and Procedure - Sentencing - Two convictions of murder -
Whether I sentence must be in respect of the first conviction.
1992 TLR p115
NYALALI CJ, RAMADHANI JA, MAPIGANO AG.JA
The appellant was convicted of the murder of two persons, a husband and a wife. A
The first and second convictions related to the deceased husband and wife,
respectively. Then the learned trial judge imposed the mandatory sentence of death in
respect of the second conviction. On appeal the propriety of imposing sentence in
respect of the second conviction was questioned. It was argued that imposing
sentence in respect of B the second conviction suggested that the judge harboured
doubts in his mind as to the guilt of the appellant in relation to that court.
Held: (i) Where more than one count of murder have been charged, and convictions
C entered on two or more counts, the practice has been to impose the death sentence
in respect of the first of such convictions. It seems to us, however, that that is simply a
matter of form. There is no rule which makes it obligatory on the court to hand out
the sentence in respect of the first conviction and it is not our desire to create one.
The D choice of which count to pass the sentence on is a matter which is better left
to the discretion of the trial judge;
(ii) reading the trial judgment it is clear to us that the judge was left in no
reasonable doubt as to the guilt of the appellant on both counts. E
Case Information
Appeal dismissed.
Rugarabamu, for the appellant. F
Mussa, for the respondent.
[zJDz]Judgment
Mapigano, Ag. J.A., Nyalali, C.J. and Ramadhani, J.A.: This is a case of double murder.
A man called Patrick Tyenyi and his wife Jenorever were brutally hacked to death in
the night of 14th/15th September, 1985, in the Musoma Township. G Jenorever was
found dead in a pool of blood inside the couple's house at Nyakato, while the dead
body of Patrick was discovered a kilometre away. It is evident that H the couple was
killed by bandits who raided their house in that night and that Patrick was killed by
the bandits after being taken forcibly from the house or when he was giving chase. It
is also evident that the injuries the couple sustained on the heads were inflicted by a
sharp weapon.
The bandits made away with clothes, a blanket, a mosquito net and a gun which
belonged to Patrick's employer and which was in his possession on account of his I
employment.
1992 TLR p116
NYALALI CJ, RAMADHANI JA, MAPIGANO AG.JA
The appellant Mwita Wambura was charged with the murders of the couple on two
A counts and tried by the High Court sitting at Musoma. Although the prosecution
produced no eye witness to the incident the learned trial judge, Sekule, J., in a careful
judgment, was of the opinion that there were three principal pieces of credible
evidence B that established the following facts: (a) that the raiders were prosecuting
a common design i.e. robbery; (b) that their common design extended to everything
which in fact occurred in the course of the raid; (c) that the murders were committed
in the course of the raid; and (d) that the appellant was a party to the raid and the
murders. C
The first piece of evidence pertained to the appellant's possession of the articles that
were stolen from the couple's house a few hours after the raid. There was credible
evidence that the appellant accompanied by two other men who evaded arrest
brought D the stolen articles to the house of PW.2 Nyamtondo in the night of the
raid. Some of the articles were blood-stained. There was also credible evidence that
the trio came to that place carrying two pangas, also blood-stained, and a knife.
In effect the appellant failed to explain to the Court how he acquired possession of the
E stolen goods. Under our criminal law the unexplained possession by an accused
person of the fruits of a crime recently after it has been committed is presumptive
evidence against the accused not only on the charge of theft or receiving with guilty
knowledge, but of any aggravated crime like murder as well, when there is reason for
concluding F that such aggravated and minor crimes were committed in the same
transaction. And the force of this presumption is greatly strengthened if the property
consists of a number of miscellaneous articles.
The second piece of evidence was the appellant's possession of the blood-stained G
weapons, weapons which were eminently capable of inflicting wounds of the kind
that the deceased couple sustained.
The third piece of evidence was the conduct of the appellant when he was confronted
by the neighbours of PW.2 in the following morning. It was in evidence that upon H
realizing that he was about to be apprehended he promptly fetched the stolen gun
from the house of PW.2, gathered the other stolen articles and then took to his heels,
threatening to shoot his pursuers with the gun.
Accordingly, the learned judge convicted the appellant on both courts. The judge was
I fully aware that under our law he was obliged to pass a sentence of death, which is
mandatory, on only one count.
1992 TLR p117
NYALALI CJ, RAMADHANI JA, MAPIGANO AG.JA
So he pronounced the sentence in the following terms: A
Mwita Wambura, I have found you guilty and convicted you of two counts of
murder ... I hereby sentence you to suffer death by hanging until you die in respect of
the murder of Jenorever w/o Patrick Tyonyi. You are so sentenced. B
It is to be observed that the murder of Jenorever was the subject matter of the second
count.
The appellant has appealed to us against the decision of the trial judge. On his behalf
Mr. Rugarabamu, learned advocate, filed two grounds. However at the start of C
hearing Mr. Rugarabamu announced that he was dropping one of the grounds, and
this did not come to us as a surprise, given the abundance and quality of the materials
on record.
The ground that remains to be considered is that "if the conviction on Court No. 1 D
was sound there was no plausible reason why the learned judge chose to sentence the
appellant to suffer death on Court No. 2". In his short address Mr. Rugarabamu has
made two points in that regard. The first point is that the trial judge erred when he
passed sentence on the second count. In his submission the judge should have passed
E the sentence on the first court instead. In answer to a question from the bench Mr.
Rugarabamu has readily conceded that there is no benefit that will ensure to the
appellant if we sustain this point.
The second point is a sequel to the first and it is that the judge's choice to hand down
F the sentence on the second count is indicative of a state of misgiving in the judge's
mind about the guilt of the appellant on the first count.
We agree with Mr. Mussa, learned Senior State Attorney who resisted the appeal, and
hold that there is no substance in the two points raised by Mr. Rugarabamu. We G
knew that in most cases where more than one count of murder have been charged,
and convictions entered on two or more counts, the practice has been to impose the
death sentence in respect of the first of such convictions. It seems to us, however, that
that is simply a matter of form or wont. There is no rule which makes it obligatory on
the H Court to hand out the sentence in respect of the first conviction, and it is not
our desire to create one. In our view the choice of which count to pass the sentence
on is a matter which is better left to the discretion of the trial judge.
Reading the trial judgment it is clear to us that the judge was left in no reasonable I
doubt as to the guilt of the appellant on both
1992 TLR p118
counts. This is how he concluded the judgment: A
The accused and the other persons, each one of them therefore is responsible
for deaths of the deceased persons under the doctrine of common intention ... Like
the gentlemen assessors, I am satisfied that the case against the accused person has
been proved B beyond reasonable doubt. I would and do hereby find the accused
guilty of murder on both counts and I convict him accordingly.
That was an explicit finding and we have been unable to accept the proposition that
C the terms of the sentence derogated from it and implied that the judge was
somewhat uncertain about the validity of the conviction on the first count. In any
event in our assessment we entertain no doubt whatever that the judge reached the
right decision. Certainly the proven incriminating facts excluded all reasonable
likelihood of the D appellant's innocence on both counts.
E Appeal dismissed.
1992 TLR p118
F
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