Court name
Court of Appeal of Tanzania

Protas John Kitogole & Another vs Republic () [1992] TZCA 7 (21 April 1992);

Law report citations
1992 TLR 51 (TZCA)
Media neutral citation
[1992] TZCA 7

Makame, Kisanga and Omar, JJ.A: These two appellants were sentenced to suffer death after being found guilty of murdering two night watchmen, employees of Tosamaganga Mission in Iringa District on 14th September, 1983. Chua, J., and all H the three assessors sitting with him were satisfied that the two appellants were the ones who violently killed the deceased persons in the course of a theft. Both appellants were themselves found to be bearing serious cut wounds at the time they were arrested. I

Mr. Mwangole, learned advocate, argued the appellants' appeal before us. He A complained that his clients were convicted merely because of the wounds they had, that their explanations as to how they each got injured should have been believed, and that there was no evidence that the appellants took part in breaking into the Mission Workshop the deceased persons were guarding. On the other hand, Mrs. Makuru, B learned State Attorney for the respondent Republic, supported the High Court decision, urging that the evidence adduced was enough to sustain both convictions.
The evidence relied on was completely circumstantial. We are able to say at the outset that it was clearly good enough and reliable evidence. We respectfully think that the C learned trial judge arrived at a reasonable conclusion.
The evidence was that the two appellants were constant companions. A paramour of the appellant Kitogele, P.W.9 Isabela Luwungo, testifies to this. She was supported D by P.W.2 Dr. Elius Mwakalobo, the other appellant's sister's husband.
During the material night P.W.2 was called to Tosamaganga Hospital where he was working as a doctor, to go and help fellow doctors attend the two watchmen who had been badly wounded. At that time his brother-in-law, the appellant Nzalalila, who had E come out of prison that year, was staying with P.W.3 Leokadia Nzalalila, heard her brother, the second appellant, cry out that he had been hurt by bandits. An inspection of the premises later the same night did not convince the several people there that the second appellant had really got the injuries at the premises. The second appellant's F story that the bandits had escaped.
There was another piece of evidence the learned trial judge mentioned both in his summing-up to the assessors and in his resume of the evidence in the course of his judgment but which he did not express an opinion on. We have in mind the testimony G of P.W.4 Alfonce Kimotuo according to which very late at night on 8/9/83 the second appellant and another person who took great pains to hide his identity went to his house wanting to hire his Pick-up. The second appellant said he wanted to go to Cheraheni to collect a motor from there. P.W.4 suspected that the item would be stolen property, H so he refused. Two days later P.W.4 reported the incident to P.W.6, the brother it will be remembered, and P.W.6 told him that a huge welding machine, called an electric motor by some people, had been stolen on 8th September, 1983, that is the same night I the second appellant asked for transport from P.W.4, but that it had been carried a distance of about nine metres only, to Ruaha

MAKAME JJA, KISANGA JJA, OMAR JJA
Bridge, and abandoned there. Incidentally we learn from P.W.2's evidence that the A place the murders were committed is also called Cheraheni and from the testimony of P.W.6 we realize that the 'motor' and the planes were stolen from one and the same workshop, the scene of the two murders.
It is our view that the trial court should have felt entitled to, and we do, take the B foregoing as one additional circumstance as far as the second appellant was concerned. It showed not only the second appellant's propensity but established that he had been at the same scene of crime, at night, six days previously, only that his efforts had been frustrated by his failure to secure transport. C
We are fully satisfied that from the various circumstances it was eminently proper to come to the conclusion that the second appellant must have been one of the persons who went to steal from the workshop at Tosamaganga Mission and maliciously killed the two watchmen in the process. His conviction was sound and we accordingly dismiss D his appeal.
Mr. Mwangole before us pursued the line taken by his other client at the trial as to how he got injured that is the Kihesa adultery story. He submitted that the first appellant got injured some ten days after the killings so his wounds had nothing to do with the E alleged offences. Learned Counsel further urged that in any event, even if the first appellant told lies about how he got injured, that does not mean that he was one of the killers.
We have seriously considered the evidence against the first appellant Protas Kitogele. We wish to say, in all candour, that the evidence against his co-accused was a great F deal stronger than that against him. We hasten to add, however, that we do not at all intend, by making that observation, to mean that the evidence against Kitogele was weak, or that it was not strong enough to ground a conviction. We are, on the contrary, fully satisfied that the circumstantial evidence against him was enough to lead to the G irresistible conclusion that he was one of the killers. There was first the evidence of constant companionship with the second appellant. There was also the testimony of the first appellant's own lover that at the funeral, which was on the morrow of the killings, H she saw the first appellant wearing a long-sleeved shirt and coat for the first time. There was also the evidence by the same witness that four days later when she visited the first appellant at his house and he inadvertently revealed that he had a bandage on his arm he told the witness on being asked by her, that he had been burnt by a kerosene cooker. I Then he changed his story and said he had been cut with a

MAKAME JJA, KISANGA JJA, OMAR JJA
knife by someone with whom he had quarrelled. The appellant added that he had A turned down advice that he should go to a Government Hospital for treatment and that he had decided to treat himself at home. The appellant also threatened to kill the woman if she even disclosed that he had a large wound. During the investigation, and at the trial, this appellant must have appreciated the dire consequences that might befall him if B proved to have been involved in the crimes. We have first asked ourselves: would a person so seriously cut, with two wounds infact - one on the left shoulder and the one seen by P.W.9 on the right arm, have stayed from hospital treatment merely because C he had been surprised preparing to commit adultery with someone's wife? Faced now with a possible murder case, would he have declined to show Sgt. Kasian, P.W.1, the investigating officer, the location of the house he had intended to fornicate in, and had got so severely injured? He would have at least tried to lead P.W.1 to the house as D the incident imaginary in our view, had taken place at about 4.30 in the afternoon. Also it cannot be true that the first appellant got injured on 25th September, 1983, that is a good ten days after the killings. P.W.9 was clear that she discovered only four days after the funeral that the first appellant had a cut wound which already was not fresh E then. That would be 19th or 20th September. We are unable to entertain what would be fanciful doubt about the first appellant's guilt. We are satisfied that he too was justly convicted.
F Appeal dismissed.
Judgment
Kisanga, J.A: I have had the advantage of reading in draft the judgment of Makame and Omar, JJ.A. upholding the conviction of both appellants for murder and the G sentence of death passed by the High Court (Chua, J.). The facts of the case are sufficiently apparent from that judgment and I need not repeat them here.
I agree that the case against both appellants was pased wholly on circumstantial evidence. I also agree that such circumstantial evidence as adduced against the H appellant Wilbert Nzalaliza was sufficient to ground his conviction. The pieces of circumstantial evidence tending to implicate him and the inferences to be drawn from them are as follows. After the two deceased watchmen had been fatally wounded, this appellant was found at the home of P.W.2, where he was staying, with a big fresh cut I wound which was bleeding, and a trail of blood was traced from there right up to the

MAKAME JJA, KISANGA JJA, OMAR JJA
carpentry workshop at Tosamaganga Mission where the murders were committed. A The appellant's explanation that the cut wound was inflicted on him by bandits who had invaded the home of P.W.2, his host and brother-in-law, was obviously bogus because there was no evidence of any breaking or entry by strangers into the room where the appellant claims he was attacked or into any part of P.W.2's premises. Thus the fact B that only shortly after the murders were committed, the appellant was found with a big cut wound, that a trail of blood was traced from where he was found to the scene of the murders were incriminating circumstances which lead to the only reasonable inference that the appellant took part in the murders. And the fact that the appellant gave a false C ground of how he sustained the injury goes to strengthen this view.
On the fateful night some fourteen carpentry planes were stolen from the workshop, and about six days later the appellant told P.W.5, a relative, that he had carpentry planes for sale but cautioned him not to disclose this to anyone because a theft of carpentry planes D had taken place at Tosamaganga. The only reasonable conclusion to be drawn here is that the appellant must have taken part in stealing the planes from the workshop and in murdering the two watchmen in the process; and his caution to P.W.5 was necessarily E calculated to protect him from detection.
Again just about six days prior to the commission of the murders, the same workshop had been broken into and a welding machine, also known as an electric motor, was stolen from there but was later found abandoned only about nine metres away. The F appellant was connected with the theft because in the dead of that same night he had approached P.W.4 and asked him for a motor vehicle to transport a motor from the workshop, but sensing that the said motor was stolen he (P.W.4) refused to oblige. Once again the only reasonable inference to be drawn here is that the appellant went G to the workshop again to carry out theft which he had attempted unsuccessfully on the previous occasion and that in the process he committed the murders.
The various conclusions of inferences drawn from the inculpatory facts point irresistibly to the appellant as being a participant in the criminal activity which resulted in the H murder of the two watchmen in the workshop at Tosamaganga Mission on the fateful night. The appellant's conviction, therefore, was amply justified.
Turning now to the appellant Protas John Kitogele, however, I find myself unable to I agree with the majority judgment. My view

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is that the facts do not meet the test for convicting on circumstantial evidence as was A laid down by the Court of Appeal for Eastern Africa in the case of R. v Kipkering arap Koske and Another (1949) 16 E.A.C.A. 135, and followed by this Court in a number of subsequent decisions. Briefly stated the test is that in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused, B and incapable of explanation upon any other reasonable hypothesis than that of his guilt. The burden of proving facts which justify the drawing of the inference from the facts to the exclusion of any reasonable hypothesis of innocence is on the prosecution and it never shifts. C
The pieces of circumstantial evidence adduced as tending to implicate this appellant are as follows: First, there was the evidence of the appellant's companionship with his co-appellant Wilbert whose conviction we have upheld. The evidence on this appeal was given by two witnesses. The appellant's own girl friend (P.W.9) who at the D material time was doing the work of selling pombe said:
The two accused used to walk together and come to the pombe shop together. They appeared to be friends because they were always together. E
This is supported by P.W.2 who said:
I have known the first accused (present appellant) for a very short period ... I came to know F the first accused in drinking places. At first the first accused used to come alone. Nearer the dates when the events occurred the two accused used to come to the drinking places together.
The first question to determine is this: Are the witnesses saying that both appellants G were always together when they went to the pombe shop or are they saying that they were together at all times? It seems plain to me that neither witness could meaningfully be saying that the appellants were together at all times, for the simple reason that the witnesses themselves were not with the appellants at all times. For instance when H P.W.9 was at the pombe shop selling pombe she would not know what company the appellant was keeping before his coming to the pombe shop. What is more, the appellant Wilbert whose case we have already deal with, used to frequent the home I of P.W.2 and, indeed on the night of the murders the appellant was spending the night there. But it is significant that neither P.W.2

MAKAME JJA, KISANGA JJA, OMAR JJA
nor P.W.3, his wife, suggested that they saw the appellant Protas at their home. In A other words, if both appellants were together at all times P.W.2 and his wife P.W.3 would have seen them together during the frequent visits by the appellant Wilbert at their home, and they would have said so. But on the contrary P.W.2 merely testified that he saw both appellants together at pombe shops, while P.W.3, his wife, makes no B mention at all of the appellant Protas.
On the evidence, therefore, all one can confidently say is that both appellants used to go to the pombe shop or pombe shops together, and the question is whether that fact was sufficient from which to draw the inference that Protas must have also accompanied C his co-appellant Wilbert to the workshop on the fateful night and there, together with Wilbert committed the murders. For my part, I could not answer that question in the affirmative. For one thing, there was no evidence whatsoever that both appellants were seen together anywhere, let alone at the scene of crime, on the day of the incident. D Further-more when P.W.2 parted with the appellant Wilbert on the material night and the latter went to sleep in P.W.2's back house, Wilbert was alone and not accompanied by the appellant Protas.
Thus on the evidence there were times when both appellants were not together. Both E appellants were not seen together anywhere on the day of the murders. On the other hand in the evening of the night of the incident, the appellant Wilbert was alone at the home of P.W.2 until bed time. In the face of such evidence I could not reasonably conclude that some how the appellant Protas must have accompanied Wilbert to the F scene of crime that night. To my mind such conclusion would merely amount to speculation. The fact of Protas's companionship with Wilbert to pombe shops is capable of an innocent explanation in that Protas may have kept such company only when going to drinking places but not during criminal ventures by his companion. G
The next set of facts tending to implicate the appellant Protas with the murders was also given by P.W.9, his girl friend. She said in effect that five to six days following the murders, she visited the appellant's home where she noticed the appellant with a big H cut wound on his lower arm; the wound was not fresh. After giving on inconsistent account of how he had sustained the wound, the appellant then threatened to kill her is she told people about the wound. She went on to say that before the murders, the appellant used to put on T-shirts but that after the murders he used to put on long I sleeved shirt and a big coat which, according to the prosecution,

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was designed to hide the wound. At the trial the appellant claimed that he sustained A the cut wound at Kihesa in Iringa town when he was trying to commit adultery with someone's wife.
I find that the appellant sustained a cut wound on his lower arm, and I am prepared to find further that he has not given a true account of how he sustained that wound. The B question that follows is: What nexus is there between his cut wound and the murders in the workshop at Tosamaganga Mission? Is there material to warrant the inference that the appellant must have sustained the injury in the course of committing the theft and murders at the workshop? I could find no justification for drawing any such inference C myself. In the first place on the evidence it is not established when the appellant sustained the wound. When P.W.9 noticed it five or six days after the murders, the wound was not fresh. But can one conclude that it was necessarily inflicted on the day of the murders and at the workshop? Relying on the evidence of P.w.9 the D prosecution takes the view that after the murders were committed, the appellant used to put on long sleeved shirt and a big coat in order to conceal his injury. But there is no evidence that P.W.9 used to see the appellant every day. Nor does P.W.9 say when she saw the appellant last before the murders were committed. In the absence of any E such evidence it is impossible to know when the appellant began to put on that kind of attire. He might have started putting it on one day or two days, when P.W.9 might not have seen him, before the commission of the murders, in which case if he was hiding a cut wound it would be a cut wound sustained elsewhere, and unconnected with the F incident at the workshop. But even assuming that the appellant started putting on this type of attire on the day following the murders, that would not be sufficient from which to conclude that he was trying to hide an injury which he had sustained during the incident at the workshop. For he could have sustained the cut wound elsewhere in the G commission of some other wrong, and it would be in his interest to hide it, and even to threaten P.W.9's life against the disclosure of it, in order to avoid detection. In other words, the fact that the appellant had sustained a cut wound on a certain day which H wound according to the prosecution he was hiding cannot justify drawing the only reasonable inference that the appellant sustained that wound during the commission of the murders at the workshop on the night in question. As has just been demonstrated, that fact can be explained on another reasonable hypothesis, namely, that the injury could have been sustained I

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elsewhere and the appellant would have reason to conceal it in order to avoid A detection.
The fact that the appellant has not given a true account of how he sustained the cut wound would be relevant only if there was evidence which implicates the appellant sufficiently with the offenses charged. In the case of Fyaralal M. Rassan and B Another v R. [1960] E.A. 854 the Court of Appeal for Eastern Africa, dealing with a similar situation, said:
It is quite plain that false statements made by an accused person do not have substantive inculpatory effect and cannot be used as a make-weight to support other material, C unless the other material would be sufficient independently to sustain a verdict against the accused.
In the instant case the fact that the appellant had sustained a cut wound and that he D tried to hide it by dressing differently and by uttering threats to P.W.9 against disclosure of it does not necessarily connect him with the murders at the workshop because, as demonstrated earlier these facts can be explained. On another reasonable hypothesis; the appellant could have sustained the injury in the course of committing some other E wrong and it would be injury his interest to try to hide it in order to avoid being detected. Quite clearly the facts which do not necessary connect the appellant with the offenses charged could not be relied upon to sustain his conviction for those offenses. Consequently in terms of Bassan's case above cited the appellant's false account of F how he sustained the cut wound could not be used to support what may only be described as a weak prosecution case. To attach any importance to the appellant's giving a false account of how he sustained the injury and to his subsequent attempt to conceal the injure, and then to proceed to convict him would, in the circumstances of G this case, amount to basing conviction on the weakness of the defence rather than on the strength of the prosecution case.
In the last analysis my view is that each of the inculpatory facts or set of inculpatory facts adduced against the appellant Protas, considered singly does not justify the drawing H of the inference that the appellant committed the murders in question. Likewise when considered together they could not justify the drawing of such inference for the simple reason that it is not possible to add nothing to nothing and get something. In other words I the inculpatory facts, whether taken individually or collectively, do not point irresistibly

to the appellant as a participant in the offenses charged. A
It is for these reasons I concur that the appeal by Wilbert has no merit and should be dismissed but would have allowed the appeal by Protas.
B Order accordingly.
C
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