Mfalila, JA: delivered the following considered judgment of the Court: B
The appellant Olafu Wikechi was convicted of murder by the High Court sitting at Njombe (Mwalusahya, J) and sentenced to death. His conviction was based on the evidence of a single identifying witness Martina Makasi (PW1), the wife of the deceased. C
The appellant's identification by the deceased's wife was not without difficulty as will be shown shortly. On the day in question, the appellant had in the morning visited the deceased's homestead. He had left after taking lunch prepared by PW1, one of the deceased's five wives. PW1 left for the shamba soon after D preparing lunch for the men. She returned home at 4.00 pm and found her husband's guest already gone. At about 5.00 pm the deceased asked her to take some liquor known as 'ulanzi' and a wick lamp to their old house which they had abandoned, telling her that he would be meeting his guest there. She complied with this instruction. At about 10.00 pm the deceased returned and told her to E accompany him to the old house and meet his guest Mr Wikechi the appellant. She went with him to the old house where on arrival he told her to remain outside. While she was outside, she could hear voices of people talking inside the hut. Then suddenly she heard a bang from inside the hut as if something was falling, Fthen she heard the sound of a door being closed and locked from the outside. She saw two people who were locking the door and recognised one of them to be the present appellant. The two people ran away, but she was emphatic that although it was a dark night she was still able to identify the appellant particularly by the white G rubber shoes he was wearing. She raised an alarm and awakened her fellow wives. When they entered the hut they found their husband dead. The post mortem examination report indicated that the cause of death was head injury leading to brain damage and haemorrhagic shock. The appellant was arrested two weeks later in Mawande Village and charged with the murder of the deceased. H
In his defence at the trial, the appellant denied causing the death of the deceased whom he described as a long time dear friend. He said that he had no cause or reason to kill such a friend. He narrated his movements on the day in question saying that after leaving I
A the deceased's house that day, he had gone to Mawande Village where his other wife, Veronica lived, and it was there that he was arrested.
The Trial Judge accepted the identification of the appellant by PW1 which he described as having strong probative value. He found that it had been corroborated B by the deceased's earlier statement to her that he was going to talk with his guest at the hut. The learned judge also found the fact that the appellant was arrested at Mawande Village at the house of his concubine, added weight to the prosecution case. He therefore found that the case against the appellant had been proved beyond reasonable doubt and convicted him as charged. C
In this appeal, Mr Mwangele, learned counsel who advocated for the appellant, attacked these findings. In his view, the learned judge was wrong to rely on the visual identification by PW1 when conditions were so unfavourable and that he erred in finding that this identification had been corroborated. D
As we have already indicated, the identification of the appellant by PW1 is not without difficulty. She herself conceded that it was a dark night. If so, how then did she identify one of the attackers to be the appellant? The answer is supplied by her own evidence that she identified one of the two to be the appellant particularly E when she saw his white rubber shoes. Is this mode of identification really reliable on a dark night? She explained later when cross-examined that there was moonlight. But this answer complicated her evidence even further for she made it F clear that her evidence could not be relied upon if she could change it so easily. In one minute saying it was a dark night, in another saying there was moonlight.
The learned judge found corroboration of her evidence in two factors. First, that the deceased had told her that he was going to talk to his guest, Mr Wikechi, the appellant. The question is how truthful was PW1 in this. The trial court who saw G her believed her and found as a fact that the deceased had made the statement. But, this finding was made without evaluating her veracity particularly in view of the contradictions in other aspects of her evidence as we have pointed out. We are therefore doubtful about her truthfulness. Secondly, that the appellant was arrested H in Mawande Village at the home of his concubine. We have not been able to appreciate the significance of this. Since there is no evidence to suggest that the appellant had gone to Mawande Village to escape arrest, we see nothing wrong or strange with the appellant deciding to proceed to the home of his concubine. I
There is another matter which exercised our minds but only because we do not A share the trial court's conviction on the veracity of PW1. We thought it was very strange that the deceased should have asked his wife to accompany him to the hut to meet his guest the appellant only to ask her to remain outside the hut! And even if it is true that she accompanied the deceased to the hut at 10.00 pm, is it Bnecessarily true that one of the two men who came running out of the hut was the appellant, since she never had the chance of seeing them enter the hut? We also note that all the time the deceased was talking of 'his guest' not 'guests'.
For these reasons, we are not convinced as the trial court was that PW1 correctly C identified the appellant and that this identification was corroborated by independent credible evidence. In our view, the charge against the appellant was not proved beyond reasonable doubt as required by law and we accordingly allow the appeal, quash his conviction for murder and set aside the sentence of death imposed on him. We order him immediately released unless he is otherwise D lawfully held.
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