Mustafa, J.A.: The deceased, Godfrey Enock, was found dead, and part of his body burnt. According to medical evidence, the deceased died of traumatic injuries, resulting from fractured ribs and skull, and the C secondary cause of death was due to burning. Three persons were charged with his murder. One was acquitted and two persons, appellant Elibariki and appellant Hussein Idd were convicted of the murder of the deceased. Both the appellants are appealing D against their convictions. We will refer to appellant Eribariki as Accused 1, and appellant Hussein as Accused 2 in the course of this judgment.
We will deal with Accused 1 first. The evidence against him was given by P.W.3 Jared, P.W.4 Jubilate and P.W.5 Verdiana. E
According to P.W.3, on the material day, i.e. 25.2.83 at about 11.00 a.m. the deceased, a tractor driver, was driving a tractor and came to P.W.3's father's place at Boma Ng'ombe. The tractor belonged to "Mwangi", presumably Shangali. Bricks belonging to Accused 2 were loaded on to the tractor, and P.W.3 helped to load the bricks. Accused 2 F was there also. The tractor left to off load the bricks at Accused 2's place. While off-loading the bricks P.W.3 saw Accused 1 arriving there. Accused 1 allegedly asked the driver, the deceased, to go and help Accused 1 pull his tractor. The driver left with Accused 1 and they went towards Rundugai, with Accused 2 also on board. G
P.W.5, also, on that same morning, saw the deceased and his tractor, on her way to the market. She saw the deceased driver and Accused 2 on the tractor and Accused 1 standing by its side. P.W.4 testified and stated that at about 12.00 H noon when he was on some business around Rundugai forest he saw a tractor coming from behind. He recognised the tractor, which belonged to Mr. Shangali. The tractor passed him, and he saw Accused 1 driving it, and Accused 2, and I another person who was acquitted, also on it. P.W.4 stated he knew them very well. He also saw Accused 2 and the other person sitting on another person who had a rope around his
A neck. P.W. 4 thought that, according to Masai custom, Accused 1 was going to throw the dead body away in the open. The following day, P.W.4 heard that Shangali's tractor and the driver were missing, and 3 days later he came to know that the missing tractor and the body of the dead driver were found. However P.W.4 did not make a report to the B Police until 10.3.81 of what he alleged he had witnessed.
Accused 1 put up a defence of alibi. He stated he was not on that day anywhere near Shangali's tractor. He went to Abisangai farm at Rundugai to plough Abisangai's 7 acres with Accused 1's tractor which was driven by Accused 1's C driver. He was there from morning until evening and was paid shs.1,400/= for the hire of his tractor.
Abisanga, who testified as D.W.1, fully corroborated the evidence of Accused 1.
D Mr. Mwale for Accused 1 submitted that the trial judge erred in allowing P.W.3 to testify without a voire dire. P.W.3 was marked down as 14 years old when he testified, and the judge swore him without a voire dire. In fact it transpired, in the course of P.W.3's evidence, that he was in fact 16 years of age, which means P.W.3 was not at the time he E testified, a child, of tender years. We are satisfied that no prejudice of any kind occurred, and Mr. Mwale's complaint on this point is without merit.
The judge found P.W.3's evidence credible. However he found P.W.3's identification of Accused 1 not reliable, as P.W.3 identified accused 1 only as a Masai. There was no identification parade. Similarly the judge found P.W.5's F identification of Accused 1 unreliable. However he found that PW.4 knew Accused 1 and Accused 2 in Shangali's tractor later at the Rundugai area. The judge found the evidence of P.W.4 highly suspicious, and was prepared to act on it only if P.W.4's evidence was corroborated. It seems that the judge held that the unsatisfactory identification by P.W.3, G and perhaps also P.W.5, corroboration of P.W.4's and perhaps also P.W.5, corroboration of P.W.4's evidence of having seen Accused 1 and Accused 2 on the tractor at the Rundugai area. H
However the judge dealt with the defence of alibi as follows:
P.W.3's evidence thus corroborates P.W.4's evidence that the 1st and 2nd accused were in Charles Shangali's tractor just about one hour after the tractor had been driven off by the accused Hussein from where P.W.3 helped off load bricks from the tractor I trailer. On the basis of this corroborative
A evidence I find that the 1st accused Elibariki and the 2nd accused Hussein Iddi had Charles Shangali's tractor in Rundugai area on 25th February, 1981 around 11.00 a.m. as testified by P.W.4. In view of this finding, it means that I reject the 1st accused's alibi although it is supported by D.W.1. The alibi is a well rehearsed lie. B
It seems clear to us that the judge dealt with the prosecution evidence on its own and arrived at the conclusion that it was true and credible and as a result he rejected the alibi put forward as a deliberate lie. In our view this is a serious misdirection. The judge should have dealt with the prosecution and defence evidence and after analysing such evidence, C the judge should then reach a conclusion. Here Accused 1 was deprived of having his defence properly considered by the judge. In the circumstances we think it unsafe to let the conviction of Accused 1 stand. D
As regards Accused 2, the evidence against him was given by P.W.2 Abdulla, P.W.3, P.W.4, and P.W.5. All these witnesses
knew Accused 2 well and there could not be any question of doubt about Accused 2's identity. The judge believed the evidence of P.W.3, and although P.W.4 was found to be rather unreliable, the evidence of P.W.3 corroborated the E evidence of P.W.4. Accused 2 was seen going away in Shangali's tractor by P.W.3, and P.W.4 saw him on the tractor at Rundugai. P.W.5 also saw Accused 2 on the material morning on Shangali's tractor. P.W.2 heard Accused 2 asking the deceased driver to return to Accused 2 after the deceased driver had dropped the grass cutters travelling on the F tractor.
Accused 2 also put forward an alibi. He denied he was on Shangali's tractor at all. He called a witness Juma D.W.3. However D.W.3 could only supply a partial alibi which left a gap, which did not prevent Accused 2 from committing the G offence, if the prosecution witnesses were believed. We are satisfied that the conviction of Accused 2 was justified, as he failed to explain what happened after he was seen on Shangali's tractor going towards Rundugai, after which the deceased was found dead, obviously murdered. The circumstances pointed inevitably to Accused 2 as being the one or H one of those who had killed the deceased.
In the result we allow the appeal of Accused 1 Elibariki, quash the conviction, set aside the sentence of death, and order that he be released forthwith unless otherwise lawfully detained. We dismiss the appeal of Accused 2 Hussein Iddi. I