Mara resident appeal to challenge death penalty quashed

THE Court of Appeal has dismissed an appeal lodged by resident of Mara Region, Matiko Chandruku, alias Kehu, to challenge both conviction and death sentence imposed on him for raping to death a seven-year-old girl, Marma Furahini.

Justices Gerald Ndika, Winfrida Korosso and Omar Makungu reached the decision after upholding the conviction of murder, as well as the statutory death sentence imposed on Chandruku, the appellant, by the High Court.

“We are, like the trial judge, satisfied that the prosecution proved its case beyond reasonable doubt against the appellant and that the trial court properly passed the sentence of death on (him) upon being satisfied that (his) age of the time of commission of the offence was 18 years,” they ruled.

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During hearing of the appeal, the counsel for the appellant had complained, among others, that the cautioned statement, which was relied by the High Court to ground the conviction was wrongly received in evidence and the appellant was improperly sentenced to death because he was under 18.

In their judgment delivered at Musoma Court Registry recently, the justices said that the appellant raised the issue of admissibility of the cautioned statement at that point in time in a fruitless attempt to save an otherwise sinking boat.

They noted from the evidence that the cautioned statement referred to was received in evidence after being tendered and the appellant’s advocate could not raise any objection and that it was recorded at the police station within the prescribed time following his arrest.

“If at all the appellant had in mind what he has averred in the grounds of appeal, he would have objected to its being tendered in evidence in which case, the prosecution would have prayed for an inquiry. This was not done and, in our view, this complaint is an afterthought,” the justices said.

They also pointed out that the trial court rightly considered that the prosecution case very much depended on the cautioned statement and the circumstances in which it was given and was satisfied that it was voluntarily given, was true and amounted to a confession.

“We think the trial court was entitled to come to that conclusion and could rely on it and the other pieces of evidence, which was consistent with the appellant’s confession and incriminated to convict (him) as charged,” the justices said.

As to the complaint on improper sentence, they noted the trial court conducted sentencing inquiry in terms of section 320 of the Criminal Procedure Act (CPA) wherein the prosecution managed to parade four (4) witnesses who proved that the appellant was eighteen years and some months.

According to the justices, it was also established through such inquiry that the clinic card tendered was forged because it referred to a child born in July, 2003 in the name of Mkani Marwa and not the appellant and that his mother was found to be a false witness hence her evidence was not considered.

On June 30, 2018 at 08.00pm, one Lucia Ricardo found out that her seven-year-old daughter, Marma Furahini, alias Malima Fraini, had disappeared from home. This was discerned by her mother upon returning from the conduct of her petty business.

She went home and assisted by members of her family, searched for her daughter in vain.

They reported the matter to a ten-cell leader and also a hamlet chairman. The leader told them it was too late for any meaningful action to be taken that night as it was already 10:00 pm.

They resolved to raise alarm in morning to invite people to mount the search.

After conducting a search for some hours’ news spread that the appellant and his brother were the last persons seen with the deceased. They arrested the appellant and his brother and took them to the village office. However, the elder brother, escaped.

The village chairman interrogated the appellant while at the village office who admitted to have killed the girl and hid her body at a secluded place. The appellant also agreed to take them to the place he hid the deceased’s body. The chairman reported the incident to the police.

Upon arrival at the village, the appellant led the police to Ujerumani hill and showed the place he had hidden the deceased’s body.

The body was taken to Mugumu hospital, where after post-mortem, which established that the cause of death was due to strangulation leading to suffocation.

The deceased body was also found with circumstances suggesting that she was raped. The police interrogated the appellant, who confessed that he raped, killed the little girl and later hid her body.  The cautioned statement was tendered during the trial, which was admitted unopposed.

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