21 May 2019

Tanzania: Court Saves Murder Suspect From Death Sentence

THE Court of Appeal has saved a Manyara Region resident, Ndorosi Kudekei, from being hanged to death for killing his friend, Mosses Massawe, alias Mkenya, for unspecified motive.

This followed Justices Sivangilwa Mwangesi, and Gerald Ndika as well as Ignus Kitusi decision to quash the findings of the High Court and set aside the conviction of murder and the sentence imposed on him by the High Court.

They allowed the appeal that Kudekei, the appellant, had lodged to fault the High Court judgment after noting some anomalies, including contradictions of testimonies by prosecution witnesses and the prosecution's failure to produce as exhibit the extra-judicial statement of the appellant.

The justices noted what was contained in the cautioned statement by the appellant was at variance with the contents of two exhibits, which were the statements made by two prosecution witnesses to the Police Officers, as regards the time when the body of the deceased as well as its head were discovered.

According to them, there was also variation between the contents of the exhibits and the oral testimonies, which were given by the two prosecution witnesses in court during the trial of the case.

While it is indicated in the appellant's cautioned statement that it was him, who showed the dead body and the severed head on January 24, 2007, the story in the two exhibits divulged that the dead body plus its head, which had been buried separately were discovered by villagers on January 23, 2007.

"During the discovery, the appellant was absent. Surprisingly, in their oral testimony in court, both (prosecution witnesses) told the court that, it was the appellant who showed them the dead body and its buried head on January 24, 2017 and not otherwise," the justices said.

The justices asked themselves on the said glaring contradictions, as to why there was a change of mind by the prosecution witnesses in their testimonies before the court, from the statements which they had earlier made at the Police Station.

"For whatever reasons that might have occasioned it, the situation could not fail to let one raise eyebrows and be tempted to think that there was something sinister.

Such situation did give credence to the doubt raised in regard to the cautioned statement of the appellant," they said.

The defence had submitted that the last sentence in the appellant's cautioned statement, which reads "nipo tayari kwenda kuonyesha mwili huo na simu (that loosely translates in English as I am ready to go and show the dead body and phone)", was most probably added at a later time for a purpose. In the case, the justices further noted that the appellant gave two statements.

There was a cautioned statement given by the appellant before the police and extra-judicial statement made before justice of peace.

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