Kanuda Daud Bodolo vs Republic (Criminal Appeal No. 249 of 2023) [2026] TZCA 636 (5 June 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHIN YANG A ( CORAM: LILA. J.A., MAIGE, J.A., And MANSOOR, J.A.) CRIMINAL APPEAL NO. 249 OF 2023 KANUDA DAUD BODOLO...................... ..................................APPELLANT VERSUS THE REPUBLIC....................... ........................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Shinyanga) fKulita, J.) dated the 12th day of September, 2022 in Criminal Session No. I l l of 2012 JUDGMENT OF THE COURT 10th February & 5th June, 2026 MANSOOR, 3.A.: This appeal has been preferred by the Appellant, Kanuda Daud Bodolo, against the decision of the High Court of Tanzania sitting at Bariadi delivered on 12th September, 2022. The trial court convicted the appellant of the offence of Murder contrary to sections 196 and 197 of the Penal Code, Cap 16 R.E. 2002. He was alleged to murder one Daniel Ayoub @ Makulilo on the 1s t day of June, 2011 at Luguru Ward, within the District of Bariadi in Shinyanga Region. The appellant was sentenced to death by hanging.

Brief facts were that, the appellant and the deceased were close relatives, in fact, they were cousins. On 1s t June 2011, the deceased travelled from Mwanza to visit his father at Inalo Village, Lugaru Ward in Bariadi District in Shinyanga. He informed his father, Ayoub Makulilo (PW1), that, he intended to return to Mwanza the following day. In the afternoon, the appellant arrived at PWl's home on a motorcycle he had hired from Kulwa Simiyu (PW3). The deceased changed clothes and together with PW3 went to visit their uncle, one Masanja Msolandege (PW5). They collected five chickens and a bag of sweet potatoes for the deceased's family in Mwanza. They left PW5's home at about 17.00 hours but the deceased did not return home making PW1 worried. PW1 made several phone calls to the deceased without success, and the next morning, he went to the appellant's house to inquire about the deceased. The appellant told PW1 that, he did not know the deceased's whereabouts. On 6th June 2011, about five (5) days from the date of the deceased's disappearance, the body of a man was found floating in River Simiyu at Lalang'ombe Area. It was tied with a rope and a heavy stone around the neck. The post-mortem report which was received by the trial

court as exhibit P4 tendered by PW4, the investigating officer, indicated the cause of death as hemorrhage and asphyxiation. PW1 identified the body based on the clothes the deceased wore when leaving home, his belt and the resemblance of his legs with his mother's. PW5, the uncle to both the appellant and the deceased, testified that, on the material day at around 1700 hours, the appellant and the deceased went to his home and took five chickens and a bag of sweet potatoes, they then left together on the motorcycle ridden by the appellant. PW2, Ntemi Malisha, a local militia officer, testified that, at about 1900 hours on the same day, he saw the appellant and the deceased together on a motorcycle near the Lugaru Ginnery Centre. PW1, the father of the deceased, testified that, his son went missing on 1s t June 2011, and he inquired from the appellant who initially denied being with the deceased but later admitted that he had dropped him at a coffee shop in Ginnery Centre. In his defense, the appellant denied the charges. He admitted being with the deceased, picking him up from his father's home, and going to their uncle’s place. However, he testified that, he had dropped the deceased at the Ginnery Centre and thereafter he went to have a cup of 3

coffee at the Centre, and he was not aware of where the deceased went after he had dropped him off. He explained that, he could not return the motorcycle on the same day as he was tired, and had returned it the next day. After a full trial, the learned trial Judge found the appellant guilt of the offence charged, convicted and sentenced him to death by hanging. The appellant is now before this Court, dissatisfied with both the conviction and the sentence. When the appeal came before us for hearing on 10th February 2026, the appellant was represented by Mr. Augustino Ijani, learned advocate, while the respondent was represented by Ms. Sophia Fidelis Mgassa and Ms. Nancy Medard Mushumbushi, learned Senior State Attorneys. The initial memorandum of appeal had five grounds of appeal but the appellant added two more grounds in the supplementary memorandum of appeal. During the hearing, Mr. Ijani only argued on the following grounds:

1. That, the learned trial Judge erred In law and fact by wrongly invoking the principle o f "last seen" when the appellant had provided a plausible explanation on where he was after parting ways with the deceased.

2. That, the body o f the deceased was not positively identified.

3. That, there was a need for DNA analysis to ascertain the identity o f the recovered body.

4. That, the trial Judge wrongly relied on the testimony o f PW1 and PW3 whose testimony were not credible and reliable.

5. That, the trial Judge shifted the burden o f proof to the accused person. Mr. Ijani submitted vigorously that, the judge's reliance on the principle of the last person to be seen with the deceased was erroneous. He argued that, the appellant had given a plausible explanation that, he dropped the deceased at the Centre and parted ways. He further submitted that, the prosecution failed to prove that the deceased had the 18 million shillings cash with him, and that the motive was to steal the TZS 18 million from the deceased. He argued further that, the payments the appellant allegedly made the next day to Malongeta amounting to TZS. 400,000, and TZS 300,000 to Nandi were not proved to have been made and even if they were made, they failed to connect it with the money stolen from the deceased. Further, the people who were alleged to have been paid by the appellant were never called to testify making the testimony of the prosecution witnesses a hearsay. Mr. Ijani also contended that, the identification of the deceased's body was not reliable, as the body was decomposed and was identified

only by the clothes he had worn before his demise and a resemblance of his legs to those of the deceased' mother. He lamented that, no DNA test was conducted to confirm the identity of the body, thus, the identification of the deceased body was insufficient. He rested his submissions beseeching the Court to allow the appeal and let his client free. In response, Ms. Mgassa, conceded that, the evidence regarding the fact that the deceased had TZS 18,000,000/= was hearsay and not proven. She however maintained that, the trial court's decision was based on the principle of the last seen, citing authorities such as Thomas Dolofen Mbele vs Republic (Criminal Appeal No. 299 of 2023) [2025] TZCA 1114 (15 October 2025) and Miraji Iddi Waziri @ Simwana and Another (Criminal Appeal 14 of 2018) [2020] TZCA 387 (07 July 2020). She maintained further that, the appellant failed to explain away his whereabouts after parting ways with the deceased and that, the burden had shifted to him to provide a reasonable explanation of where he was after dropping off the deceased at the Centre. That, the prosecution was able to establish that, the appellant was the last person seen with the deceased shortly before his death, thus the burden shifted to him to provide a reasonable truthful explanation on how they parted ways or how the death occurred. Thus, argued by Ms. Mgassa that, it was correct 6

for the trial court to draw a logical inference of his guilt. Ms. Mgassa urged us to find the appeal unmeritorious and deserved to be dismissed. We have carefully considered the record of appeal, the submissions of both parties, the law and the authorities cited, and the issues that require determination of the Court are, one, whether the identification of the deceased's body was proven beyond a reasonable doubt. Two, whether the trial court properly applied the doctrine of the "last person to be seen with the deceased", and three, whether the prosecution proved the case against the appellant beyond a reasonable doubt. The first and perhaps most fundamental issue in this appeal is the identity of the body found in the Simiyu River on 6th June 2011. The prosecution's entire case hinges on the fact that, the person who went missing on 1s t June 2011, Daniel Ayoub Makulilo, is the same person whose body was recovered five days later at Simiyu River. The appellant contends that, this crucial link was not properly established as the body of the deceased was not clearly identified. The evidence on this point came solely from PW1, the father of the deceased, Ayoub Makulilo. His testimony at page 34 of the record states: "I managed to note it being my son's body. I identified it through his legs which relates to that

o f her mother, They had not yet been destroyed. I also identified him through the belt and clothes that he had worn before he left home. The other parts of the body had already been decayed but he looked to have been injured on the neck and ribs." This identification was based on the clothes the deceased was wearing, a belt, and the resemblance of his legs to those of his mother. The evidence of PW1 on the decay and decomposition of the body was also established by a post-mortem examination report admitted as exhibit PI, which revealed that, the body was found on 6th June 2011 and it was already putrefied. Also, PW4, the investigating officer, testified at page 46 of the record that: "The said body, had already started to decay. It had no eyes nor tongue." In our considered view, from the above testimonies and evidence on record, the identification of a decomposed body by a close relative, with the eyes and tongue removed while not without value, must be treated with the utmost caution. It is not sufficient for a witness to simply assert that, the body is that of a known person; there must be some evidence of identifying features that are not easily susceptible to error, especially where the body is in a state of decomposition. The identification 8

of the deceased decayed body, when visual recognition becomes impossible due to post-mortem changes requires critical scientific process for positive scientific identification. In this case, the body was found in a decomposed state, and the visual identification or recognition by his father (PW1) based on a belt and resemblance of his legs to his mother was insufficient to sustain a conviction. In Seko Masalu@ Makoye vs Republic (Criminal Appeal No. 482 of 2020) [2024] TZCA 77 (21 February 2024), it was held that, where the body is found after a lapse of time and is decomposed, the prosecution must take extra steps to ensure that the identity of the deceased is proven beyond a reasonable doubt. In the instant case, the identifying features relied upon were ordinary clothes and a belt, items which could easily be worn by another person. The identification based on the resemblance of the legs to the mother is highly subjective and, in our view, does not constitute a reliable and positive identification. No other unique identifying mark, such as a scar, birthmark, or tattoo, was mentioned. Critically, no attempt was made to conduct a more scientific method of identification, such as DNA analysis, for more scientific identification of the body. 9

The importance of proving the identity of the deceased beyond reasonable doubt cannot be overstated. As this Court held in Seko Masalu @ Makoye vs Republic (supra), citing Hunay Langwen and Three Others vs Republic [2005] T.L.R. 154, that: "The trial court should have made a finding on whether or not the evidence on record established beyond reasonable doubt that the deceased was dead." In the present case, the trial court failed to adequately address the issue of positive identification of the deceased body. The evidence of PW1, standing alone, was insufficient to dispel the doubt created by the decomposed state of the body and the lack of any other scientific corroborating identification. We therefore agree with the appellant that, a DNA test was necessary in the circumstances of this case, where the body was found after a lapse of five days, in a state of decomposition, and identified solely on the basis of ordinary clothing and a subjective physical resemblance was insufficient and cannot be relied. The more scientific recognition of the body by subjecting the bones and perhaps the teeth which are less susceptive of decay to a DNA testing of the surviving relative or his personal items was necessary. The prosecution failed to establish beyond a reasonable doubt that the body recovered was indeed 10

that of Daniel Ayoub Makulilo. This failure strikes at the very foundation of the case against the appellant, for if the identity of the deceased is not proven, then the chain of circumstantial evidence leading to the appellant's guilt is irreparably broken. For this reason alone, the appellant's conviction cannot be sustained. However, we found it pertinent to address the issue of the doctri ne of the last person to be seen with the deceased, and whether the prosecution was able to prove the charge beyond a reasonable doubt. The trial court applied the doctrine of the "last person to be seen with the deceased" as a crucial link in the chain of circumstantial evidence. The appellant contends that, the trial court erred in invoking this principle because he gave a plausible explanation of how he parted ways with the deceased. There was a time gap between the day the appellant dropped off the deceased to the date the body was recovered. The rejection of the appellant's prompt and truthful explanation was wrong as the explanation casted doubt that, he might not have been the person responsible for the deceased's death. The legal position on the doctrine of the last seen is that, if an accused person is alleged to be the last person to be seen with the deceased, he is under a duty to give an explanation of how he parted 11

ways with the deceased. In Robert Edward Moringe @ Kadogoo vs Republic (Criminal Application No. 9 of 2005) [2006] TZCA 365 (27 October 2006) [2006] TZCA 365, we held that, where the accused is the last person to be seen with the deceased under circumstances which could not easily be explained away, he has a duty to give an explanation of how they parted. The Court in Mathayo Mwalimu & Another vs Republic (Criminal Appeal 147 of 2008) [2009] TZCA 53 (2 November 2009), stated that in the absence of a plausible explanation, the accused may be presumed to be the killer. However, this doctrine is not an automatic license to base the conviction. The "last seen" evidence is merely one piece of circumstantial evidence that must be considered together with all the other evidence. The explanation offered by the accused must be considered on its own merits, and the court must determine whether it is so implausible that it can be rejected. In this case, the appellant's explanation was that, he dropped the deceased at the Ginnery Centre with his luggage. He then went for coffee. He stated that, the deceased was travelling to Mwanza and he did not know where he headed after dropping him off. He further stated that, he then went to his second wife's home and spent the night there. The burden of proving the appellant’s guilt remained squarely on the 12

prosecution and the explanation by the appellant was not to be rejected as there was no any other evidence offered by the prosecution for another scenario. It is from the prosecution own evidence that, the deceased had collected items (chicken and a bag of potatoes) from his uncle and was intending to travel to Mwanza the same day. There was no any other evidence which contradicted the explanation by the appellant that the deceased was not dropped off at the Ginnery Centre and he did not plan to travel back to Mwanza on that day or that the Ginnery Center is the same location as River Simiyu or that the Ginnery Centre is not the Bus Station. The explanation offered by the appellant that he dropped the deceased at the Ginnery Centre was not contradicted by the evidence of the prosecution. The fact that the deceased collected the chicken and the potatoes for taking them to Mwanza was in fact supported by the evidence of the prosecution. There is a gap on the evidence offered by the prosecution making the chain of events offered broken, and it was improper and unsafe to base the conviction on the doctrine of the last seen. There was no justification for the application of the last seen principle for basing the conviction of the appellant. In this case again, there is significant time gap from the date the appellant dropped the deceased at the Ginnery Centre to the date his 13

body was recovered at River Simiyu. It was not in evidence the proximity of the distance from the Ginnery Centre to Simiyu River to be able to connect the appellant with the doctrine of the last seen, as there is a possibility that, the deceased might have encountered other circumstances causing his death within the five days of his disappearance either at the Ginnery Centre or River Simiyu or somewhere else. These facts must have been established by the prosecution to clear any reasonable doubts in the minds of the Judge. The fact that the appellant's explanation may not be entirely convincing does not automatically shift the burden of proof to him. As this Court has repeatedly stated, the burden of proof never shifts from the prosecution. See Ciaudian Sospeter Makalanga vs Republic (Criminal Appeal No. 251 of 2024) [2026] TZCA 144 (26 February 2026) and Director of Public Prosecutions vs Hassan Abdalla Mitawi & Another (Criminal Appeal No. 82 o 2023) [2024] TZCA 286 (30 April 2024). Lastly on whether the prosecution proved the case beyond a reasonable doubt. Having found that, the identity of the deceased was not proven and that the chain of circumstantial evidence was broken, it is our considered view that the prosecution failed to prove its case against the appellant beyond a reasonable doubt. The prosecution, through PW1, 14

attempted to establish a motive by alleging that, the deceased was moving around with TZS 18,000,000 cash for purchasing the maize and that, the appellant's motive to kill his cousin was for stealing the money. As admitted by Ms. Mgassa, there was no direct evidence to prove that the deceased was carrying TZS 18,000,000. Indeed, PWl's evidence on this point was clearly hearsay. PW1 stated at page 35 of the record the following: "When I called his brother at Mwanza, he toid me that he had not reached there. The said unde also toid me that the deceased had left with Tsh. 18,000,000/= for purchasing maize." The uncle who allegedly told PW1 this information never testified as to the existence of the money. There was no proof at all, either from the money transfer transactions or withdraw of the cash from the bank or any other means to prove that, the deceased travelled with TZS 18,000,000 from Mwanza to his father's place in Bariadi, and was moving around the village on a motorcycle carrying the money. It has not been established if the deceased had purchased the maize. It was only proved that on the date he encountered his death or on the date of his disappearance, he was carrying chickens and a bag of sweet potatoes given to him by PW5.

There was no witness who testified that, he went to Bariadi for purposes of purchasing maize and he actually purchased the maize. The evidence on both the existence of the money and the payments was therefore unsubstantiated and should have been given little to no weight. The motive, while important, must itself be proved by evidence and not by mere speculation, The trial court also considered the appellant's conduct of hiring and returning the motorcycle as a factor pointing to his guilt. The appellant gave an explanation for the delay, stating that he was tired. While this may be a weak explanation, it is not, in itself, sufficient to support a conviction for murder, especially when the other pillars of the prosecution's case were infirm. From the above analysis, we are constrained to conclude that, the conviction was unsafe. The evidence adduced by the prosecution was insufficient to exclude all other reasonable hypotheses inconsistent with the innocence of the appellant. The possibility that, the deceased met his death at the hands of another person, after parting ways with the appellant at the Ginnery Centre, is a reasonable hypothesis that was not excluded by the evidence. 16

Consequently, we hereby allow the appeal, quash the conviction, and set aside the sentence of death imposed by the High Court. The appellant, Kanuda Daud Bodolo, is to be set at liberty forthwith unless lawfully held for any other offence. DATED at DODOMA this 19th day of May, 2026. S. A. LILA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL Judgment delivered virtually, this 5th day of June, 2026 in the presence of Appellant in person unrepresented, Ms. Mboneke IMdimubenya, learned State Attorney for the Respondent and Ms. Harida Hamisi, Court clerk is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 17