Court name
Court of Appeal of Tanzania

Mwita Wambura vs Republic () [1992] TZCA 17 (29 May 1992);

Law report citations
1992 TLR 114 (TZCA)
Media neutral citation
[1992] TZCA 17

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.

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.

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

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.

F
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