Court name
Court of Appeal of Tanzania

Anangisye Masendo Ng'wang'wa vs Republic () [1993] TZCA 19 (13 August 1993);

Law report citations
1993 TLR 202 (TZCA)
Media neutral citation
[1993] TZCA 19

Kisanga, J.A., delivered the following considered judgment of the court: B
The two appellants were jointly charged with and convicted of murder contrary to s 196 of the Penal Code, and were each sentenced to death by the High Court (Mwaikasu J) sitting here in Mbeya. They have now appealed against both conviction and sentence. Before us the appellants were C represented by Mr Kayange, learned Advocate, while Mr Mbise, learned State Attorney, appeared for the respondent Republic.
The Republic alleged that on the day of the incident the deceased and his sister (PW1) set out to go D to a funeral of a relative. On the way they met the appellants who stopped them, blew a whistle which attracted three more others to the scene after which the whole group set upon the deceased and beat him up using sticks and clubs. After the assault the deceased was never seen alive again. His dead body was recovered from a river about a week later bearing cuts and stab wounds. The E cause of death was haemorrhage due to cut wounds. The appellants' defences were a flat denial coupled with an alibi. The Trial Court rejected their defences and convicted them as charged.
Mr Kayange filed three grounds of appeal which essentially raise the issue of credibility of the F witnesses. He complained that the appellants' conviction was wrongly based on the evidence of a single witness and that the appellants' defences of alibi were rejected on insufficient grounds.
Admittedly the appellants' conviction was based mainly on the evidence of a single witness. This was G Enelise Nomba (PW1), the deceased's sister who on the fateful day had accompanied the deceased to the funeral of their relative. The learned Trial Judge was fully aware of this aspect of the evidence, and specifically addressed himself to that issue. At the end of the day, however, he found H that he could safely act on that evidence to convict the appellants. This is what he said in his judgments:
`While fully aware of the danger of relying on a single witness in a serious charge like this, this Court is clearly of the view that bearing in mind the fact that this incident took place in broad daylight while I

A the PW1 was very close to the assailants, and had ample time to have a close, careful and clear look at them all, and that in all respects the PW1 appeared to have been telling the truth, it can confidently and safely walk on the rope of the evidence of the PW1 to the sacred end of justice in this case. There is therefore, no hesitation in placing B reliance in the evidence of the PW1, though the only eye witness in this case.'
On the material before him, the learned Judge was entitled to come to that conclusion and we can find no valid ground for complaint. Furthermore, in addition to the factors mentioned by the learned C Judge, the witness knew the appellants well before the day of the incident, indeed she said she is related to Masendo, the first appellant. That would strengthen the Judge's finding that PW1 could not have mistaken the identity of the appellants. Again when PW1 arrived at the place of the funeral she D disclosed the incident and mentioned the appellants to be among the assailants. Such promptness in reporting the incident and the consistency in mentioning the appellants as the culprits would tend to lend credence to her story. And finally she testified that there were five assailants altogether but of these she knew only the two appellants. The view may be taken that if she were given to E exaggeration she might claim that she had recognized the whole group.
There was evidence also that the news of this attack and the disappearance of the deceased immediately thereafter spread widely in the locality. There was further evidence that both appellants F were members of the local militia popularly known as `Sungusungu'. The appellants in their defences, however, claimed that they were not at all aware of this incident having happened in their locality. The Trial Judge found it strange that the appellants who as members of `Sungusungu' were, G on their own admission, concerned with matters of security in the locality, should not have known of the incident until their arrest three days after the incident. The Judge took the view that the appellants' denial of any knowledge about the incident was an attempt to avoid any suspicion being cast upon them in conjunction with their involvement in causing the death of the deceased. We H cannot say that such inference was unjustified.
Not only that. There was evidence that only two to three weeks prior to the incident, the appellant Fabian, in a group of other persons unknown, had mounted an ambush attack on the deceased, for which the said appellant was prosecuted, convicted and fined, and ordered to compensate the I deceased Shs 10,000/=

which he had taken from him during the attack. So far the appellant had refunded only Shs 2,000/= A and the remaining Shs 8,000/= was due to be paid on a Monday but then this incident happened on the preceding Friday. The appellant Fabian, therefore, nursed a grudge against the deceased and that would provide motive for the subsequent and fatal attack on the deceased. It is clear, therefore B that the appellants' convictions were not based on the evidence of the single witness (PW1) alone. There was also other circumstantial evidence which tended to implicate the appellants with the offence.
In their respective defences of alibi, the first appellant Anangisye had stated that on the day of the incident he was at his home, and the second appellant Fabian claimed that he had gone to the C District Court in Tukuyu to lodge an appeal in the said case involving him and the deceased. The Trial Court duly considered the defences and rejected them. The appellant Anangisye could very well have been at his home as he claimed. But there was nothing to prevent him from going to commit D the offence and then return home. The same may be said of the appellant Fabian. He could have been to Tukuyu District Court to transact business there and then returned to his locality in Kiwira in time for the incident which happened at about 3 pm. We do not think that the defences of alibi are E such as would raise any reasonable doubt on the prosecution case, and like the Trial Judge we reject them.
The Trial Judge considered the fact that the deceased was found to have sustained cut and stab wounds which caused his death, while the only evidence received was that the appellants and the F rest of their group were seen attacking the deceased with sticks and clubs; no sharp weapons were seen. He resolved the matter by saying that since the deceased was assaulted as he was being held by the appellants, and since the deceased was never seen again alive after such assault, then the appellants, must have known how the deceased came to sustain these wounds. That is, the G appellants must have been parties to the inflicting of those wounds on the deceased. For our part we cannot say that such inference was erroneous.
Upon a careful study of the record we satisfied that the appellants' convictions were amply justified. H We find no merit in the appeals which are accordingly dismissed in their entirety.

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