Important Case For A Law Student To Perusal
Important Case For A Law Student To Perusal
Important Case For A Law Student To Perusal
AT MWANZA
(Katiti, J.)
MAKAME, J.A.:
It was common ground that the appellant and the deceased spent
the night at the appellant's younger brother's house upon their arrival at
Kaliua village. The evidence accepted by the trial court was that the two,
the appellant and the deceased, did this alone, and the appellant's
assertion that they were in the company of PW2, PAULO HEDES, who had
been 'housewarming' the house; and another person, was rejected. The
appellant had asked PW2 and PW2's friend, Philbert, to go and find
another shelter for the night as he, the appellant, and the deceased,
would sleep with some women.
In his testimony PYV2 further alleged that when he went back to the
house on the morrow to collect his bed he found the door locked and it
was not until the third day that he was able to locate the appellant, and
when they went to the house and the appellant opened the door, alas, the
bed was soiled with blood and there was also a lot of blood splattered on
the walls and floor. The appellant said that the blood was that of a ten-
year old girl whose hymen he had broken. PW2 would not buy that story,
nor would his father, PW8, ELIAS MARKO, when he saw the bed.
bashed and pieces of bone had pierced and damaged the brain. The cause
of death was given as Brain Injury.
The appellant told the Court of trial that in the house that night
they were four: He and his friend who later left for Urambo, Paul Hedes
and Paul's friend. The assertion is therefore that he was not alone with
the deceased that night. He also said he did not identify the body and
that he told the hymen fib at the Police Station so as to save himself from
further assault.
Mr. Muna had two grounds in support of the appeal by his client.
He submitted that the evidence against the appellant was merely
circumstantial and that it was of a quality that would not reasonably lead
to the conviction of the appellant; and that the learned Judge erred in
accepting as credible the evidence of PW2, PW3 and PW8 who had
interests of their own to serve. The three witnesses were Son, Mother and
Father.
same view as that of his assessors that the appellant's guilt had been
established. He also correctly warned himself, in his own colourful
language, that although he was satisfied that the appellant had told lies,
and that lies can be told for a variety of reasons, in this particular case it
was because the appellant was trying to hide his guilt. The learned judge
ably demonstrated his awareness of the case law on circumstantial
evidence and cited a variety of authorities including KIPERUMI ARAP
KOSKE AND ANOTHER (1949) 16 EACA 135. He took into account, quite
properly in our view, the fact that the appellant was last seen alone with
the deceased; the hymen story, which was an unblushing lie; and which
he could not have told so as to save himself from further assault, as the
appellant said, because he had first furnished the story to the youth,
PW2, on the latter discovering the blood in the house, much earlier on,
when there could have been no fear of people assaulting him, or
assaulting him further. There was also his falsely saying that the
deceased had travelled from the village; and his later conceding that the
body fished out from the latrine was that of his guest. There was further
a futile attempt by the appellant to implicate PW8, PW2's father, as
being his companion-in crime.
With respect to the learned advocate for the appellant, we are not
persuaded to agree that counsel had "almost covered Ground 2". The
truth of the matter is that he did not really argue that Ground, but we are
satisfied in any event that it is devoid of merit. Counsel merely remarked
in passing that PW8 was also arrested, but we know the circumstances in
which this happened, and we do not think that this in any way detracts
from the soundness of the appellant's conviction. Lastly, with respect, we
are of the view that Mr, Muna must have misread a portion of Dr.
Massam's evidence to be able to assert so boldly that, at Page 17 Line 12,
"Doctor says there was no violence in the room". At the said Line 12 the
Doctor testified that "I estimated that six days had gone by because of
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change of the organs and the place the body was". We are completely at
a loss to understand how this could support learned counsel's
contention. For the sake of argument, even if counsel's reference to Line
12 was merely lapsus linguae and that he actually wanted to refer to Line
20, that one goes thus: "At the scene there was no evidence of violence
as to cause the impact demonstrated by the Deceased" (sic). This is
neither here no there really. In Line 4 the doctor is loud and clear that "I
never entered the Accused's house at all"; so that it is beyond
peradventure that the doctor was not in a position to say that "there was
no violence in the room", for what it would be worth.
We wish to add two matters, the first one quite briefly; and the
second one is, we think, of great moment:
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The first one is, having expressed our surprise at the learned State
Attorney's failure to support the conviction we wish to say that we were
making the remark only with particular reference to this appeal, the way
we were viewing it. For the avoidance of doubt, we should not be taken to
intend to say that State Counsel should always resist appeals against the
Republic, no matter the merit or lack of it. If after serious consideration
and in keeping with professional ethics which are a trademark in our
calling, State Attorney is of the view that he is not in a position to
support a conviction, for that matter any decision, "in favour" of the
Republic, he should feel free, and indeed feel obliged, to inform the
Court, bearing in mind that he is an officer of the Court.
L.M. MAKAME
JUSTICE OF APPAEL
R.H. KISANGA
JUSTICE OF APPAEL