Court name
Court of Appeal of Tanzania

Christian S/O Kale & Rwekaza S/o Bernard vs Republic () [1992] TZCA 42 (12 October 1992);

Law report citations
1992 TLR 302 (TZCA)
Media neutral citation
[1992] TZCA 42

Omar, Ramadhani and Mnzavas, JJ.A.: A charge of murder c/s 196 of the Penal Code was laid at the doors of the appellants - Christian Kake and Rwekaza Bernard. The Republic alleged that on or about the 23rd day of July 1988, at Kangabusharo G village within the district of Bukoba, Kagera Region, the appellants jointly and together murdered one Gervas Lukaito.
The appellants pleaded not guilty to the charge but after a full trial the High Court, (Chipeta, J.) was satisfied that the charge of murder had been proved against both appellants beyond reasonable doubt. They were accordingly convicted and the H mandatory sentence of death was imposed.
Dissatisfied with the finding and sentence of the High Court the appellants have appealed to this Court. Arguing the appeal Mr. Rugarabamu, learned defence Counsel I vigorously attacked the evidence of Salvatory Tibenda, (PW.1), who testified in the Court

OMAR JJA, RAMADHANI JJA, MNZAVAS JJA
of first instance that he saw the appellants as they were belaboring the deceased with A a sizeable stick. It was the learned Counsel's submission that there were doubts as to whether the witness could have properly identified the appellants as the people who fatally attacked the deceased on the fateful day. In support of his argument the learned Counsel referred us to the opinion of the three assessors (who sat with the learned B judge) which was to the effect that PW.1 could not have properly identified the appellants as the people who fatally attacked the deceased.
Secondly the learned defence Counsel submitted that the learned trial judge failed to address the gentlemen assessors in his summing up on the question as to whether or C not the appellants acted jointly in attacking the deceased. This crucial issue was also, it was submitted, not dealt with by the trial judge in his judgment.
Finally Mr. Rugarabamu submitted that on the evidence of PW.1 the second appellant could not be said to have aided and abetted the commission of the offence. In D support of his argument the decision of this Court in Damiano Petro and Jackson Abraham v R. [1980] TLR 260 was quoted.
The learned defence Counsel asked the Court to allow the appeal and acquit the appellants. E
The Republic on the other hand supported the conviction of both appellants. Mr. Magoma, learned Senior State Attorney, who represented the Republic, was of the view that the gentlemen asessors' opinion that the appellants were not adequately identified was unsupportable in view of PW.1's testimony. It was submitted that from F the evidence of PW.1 he was standing only about seven paces from where the deceased was being assaulted and that as such he could not have failed to identify deceased's assailants in broad day light. The learned Senior state Attorney submitted that PW.1 was a stranger to the appellants and that there was no suggestion, leave G alone evidence, that he had reason to tell lies against them.
As for the argument that the second appellant did not participate in attacking the deceased Mr. Magoma submitted that the evidence by PW.1 showed that the 2nd appellant held the deceased while the 1st appellant was belaboring him with a stick. H It was the learned Senior State Attorney's argument that the facts in Damiano's case (supra) were easily distinguishable from the facts in this case. The learned State Attorney argued that in Damiano's case the second appellant was merely present at the scene of crime while the 1st appellant was attacking the deceased. In the present case I it was argued that the second appellant aided and abetted the

OMAR JJA, RAMADHANI JJA, MNZAVAS JJA
assault of the deceased by holding him while the 1st appellant attacked him. The A learned Senior State Attorney asked the Court to find that the appellants were properly convicted of the offence of murder and that the appeal should be dismissed in its entirely.
After having read the evidence tendered in the High Court it is clear that the case for B the prosecution stood or fell on the testimony of Salvatory Tibenda, PW.1. The witness said in his evidence, inter alia:
When we got to the hill I saw these two accused persons assaulting a certain young man C using thick sticks - about the size of my arm. It was the first accused who was using the stick. The second accused was holding the young man and was pulling him. There were other people who just stood watching. I asked them why they were assaulting him. The first accused said that the young man had stolen a radio. I told them that it was better for D them to take him to police rather than assaulting him. But they continued to assault the man so I and Faustin took our bicycles and left the scene.
E I saw the first accused hit the man on the forehead.
The witness also told the Court that it was his first time to see the two appellants and that he heard one old man who was at the scene calling the appellants by their names saying - "Christian and Rwekaza stop assaulting a person you know". According to F PW.1's testimony it was he who reported to the police the assault of the deceased by the appellants mentioning their names as Christian and Rwekaza.
From the evidence of B. 7971 SGT. James, (PW.4), on 2/6/88 he was investigating a G case in which Gervas Lukaito, the deceased, was the complainant. He complained that the first appellant, Christian Kake, had maliciously damaged his bicycle. On being interrogated Christian Kake admitted damaging deceased bicycle and that he did so because he had seen the deceased making amorous advances to his wife. They were H reconciled and the first appellant promised to repair the bicycle whose damage was estimated at Shs. 5,000/=. According to the evidence of Sergeant James he had known the 1st appellant before the bicycle incident when he (1st appellant) had a case with his father.
In assessing the evidence of PW.1 the learned trial judge said, inter alia: I

OMAR JJA, RAMADHANI JJA, MNZAVAS JJA
A Where the evidence of visual identification is that of a single witness such evidence must be very narrowly examined and usually the Court will look for some corroborative evidence, be it direct or circumstantial, particularly where the circumstances did not favour a correct identification.
B In the present case, the first point to consider is the credibility of PW.1 ... I was impressed by his simplicity of manner and the straight forward manner in which he answered questions. ... I saw nothing in his demeanour to suggest that he had been tutored or was embellishing his story. This witness was a stranger to the accused persons and so he had no reason to frame any of the accused persons. C
The learned judge then concluded that he was satisfied that PW.1 had ample opportunity to identify the two accused persons as the people who fatally attacked the deceased. D
We would first like to deal with the evidence that tended to implicate the first appellant with the death of the deceased. As already stated above the prosecution case wholly depended on the testimony of PW.1 In his assessment of PW.1's evidence the trial judge was, (unlike the three assessors who sat with him), satisfied that PW.1 was a E credible witness. Mr. Rugarabamu, learned defence Counsel, will no doubt agree with us on reflection that the learned judge was in a better position to assess the credibility of the witness that this Court which merely reads the transcript of the record. He saw and heard the witness as he testified; an advantage which we do not have. F
Dealing with the question of credibility of witnesses the Eastern Africa Court of Appeal had this to say in R. v Gokaldas Kanji Karia & Another, [1949] EACA 116:
G Where a case is essentially one of fact, in the absence of any indication that the trial judge has failed to take some material point or circumstance into account it is impossible and improper for a Court of Appeal to say that he has come to an erroneous conclusion as to the respective credibility he attached to the evidence of the Crown witnesses and that H given by the accused.
In his evidence the witness told the Court that he was standing about seven paces from where the deceased was being assaulted and that he saw the first appellant assaulting I the deceased on the

OMAR JJA, RAMADHANI JJA, MNZAVAS JJA
forehead. Apparently PW.1's testimony that the 1st appellant hit the deceased on the A forehead tallies with the medical report - exhibit P.1, which was to the effect that the deceased had suffered fracture of the skull on the frontal bone. Cause of death was given as intracranial and extracranial hemorrhage secondary to head injury.
This clearly demonstrated that PW.1 told the truth when he said that he saw the first B appellant attacking the deceased on the forehead with a stick. From the evidence of the doctor exhibit P.1, it was clear that it was the assault of the deceased on the forehead with a stick that caused deceased's death.
That being the position we are satisfied that the learned trial judge was right in C convicting the first appellant, Christian Kake, with the offence of murder as charged. His appeal is accordingly dismissed.
As for the second appellant, Rwekaza Bernard, the most that PW.1 said about him in D connection with the assault of the deceased on the material day was that he held and pulled the deceased. Nowhere in his evidence did the witness say positively, (as he did in respect of the first appellant) that the second appellant assaulted the deceased with any weapon. Apparently both in his judgment and in his summing up to the gentlemen E assessors the learned trial judge did not deal with the crucial question as to whether the doctrine of common intention applied so as to make the second appellant also answerable in the killing of the deceased. In a somewhat similar situation two accused (E and L) and others set upon the deceased, L held him and others beat him. E F caught hold of him, twisted his neck, dislocating it. Deceased died as a result.
The Eastern Africa Court of Appeal held that "L could only be convicted of murder if it was established not only that he was holding the deceased while accused E was twisting his neck, but that he was identified with E's purpose". See R. v Enok Achila and G Another (1941) 8 EACA 84.
If the above decision is anything to go by the most that could be said about the second appellant is that he held the deceased while the 1st appellant dealt him the merciless fatal blow. To find the 2nd appellant guilty of murder it has to be proved that he was H identified with first appellant's brutal purpose - That of causing deceased's death or causing him grievous bodily harm. After a lot of deliberation and reflection it is our considered opinion that to say the second appellant was guilty of murder because he held the deceased while the 1st appellant fatally attacked him would be too broad a I statement of the law.

Although second appellant's defence, like that of his co-accused, was a A cock-and-bull story of what happened on the material day; and it must be conceded that he obviously has a talent for fiction; an accused ought not to be convicted on the weakness of his defence but on the strength of the prosecution case.
We are satisfied in our own minds that on the evidence it would be dangerous to B support the conviction of the 2nd appellant. The conviction for murder is accordingly quashed and the sentence of death is hereby set aside. The second appellant Rwekaza Bernard is to be released from custody forthwith unless he is otherwise lawfully held. C
Appeal dismissed.

D
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