Erick Gabriel Kinyaiya vs Republic (Criminal Appeal No. 148 of 2024) [2026] TZCA 608 (28 May 2026)
Judgment
IN THE COURT OF APPEAL OF TANZANIA AT DODOMA fCORAM: GALEBA. J.A., MASOUD. J.A. And FELESHI, J.A.) CRIMINAL APPEAL NO. 148 OF 2024 ERICK GABRIEL KINYAIYA ....... . ......................................APPELLANT VERSUS THE REPUBLIC.............................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Morogoro) (Mqonva, J.^ dated the 13th day of September, 2023 in Criminal Sessions Case No. 104 of 2015 JUDGEMENT OF THE COURT 17th February & 28th May, 2026 GALEBA. 3.A.; In this appeal, Erick Gabriel s/o Kinyaiya (the appellant), is appealing against the judgment of the High Court of Tanzania at Morogoro in Criminal Sessions Case No. 104 of 2015. In that case, he was charged with, and convicted of the offence of murder contrary to section 196 of the Penal Code. It was alleged that on 23r d February, 2015 at Stavi Guest House (the guest house), Kichangani area in Morogoro Region, he murdered one Zalia Kambi (the deceased). Upon conviction, he was sentenced to suffer death by hanging. He was aggrieved by the conviction, hence the present appeal to the Court.
The material facts of the case are not complicated. They are that, on 23rd February, 2015, when the charged incident occurred, the appellant was with the deceased who was his lover, at the guest house, where she was also a bar attendant. On that day, the deceased reported for duty, and after her day long assignments, she left for home, but after a while she returned to the guest house where she joined the appellant around 23:00 hours. The appellant then hired room No. 8A in the same guest house for their use. According to Abdallah Hussein (PW7), a watchman at the guest house, while on duty, he heard noise coming from the guest house, specifically from room no. 8A. He knocked on the door, and afterwards, the lights were switched off. He then heard a voice from the room asking who was knocking. After introducing himself as the watchman of the guest house and inquiring about their safety, he was told they were safe. Still suspicious, he informed the guest house attendant one John, who then rushed to call a lady named Mwajabu. The trio in turn, called F. 3248 D/C Mujarubi (PW3), a police officer and Hamis Hamis Matei (PW2), the local government leader. As the door to the room would not be opened voluntarily, PW2, PW3 and PW7 forcefully opened it, whereupon they achieved entry. In the room, they found the appellant and the deceased's lifeless body lying
in bed. According to PW2 and PW3 the appellant was found inside the toilet, but as for PW7 the appellant was sitting on the bed. Before the information about the deceased's death reached the police, PW3 was amongst the police officers who first arrived at the scene of crime and later Thobias Sileo Walelo (PW4), a police officer who informed other police officers on patrol and left together to the scene of the crime. On arrival at the scene, PW4 and his colleagues found the lifeless body of the deceased in bed, and the suspect was sitting on a couch. The police officers took with them the dead body to the hospital for medical examination. According to PW4, it was at the hospital after medical examination that the deceased's relatives provided the police with the particulars of the victim, who was known by the name of Zalia Kambi, this fact is also corroborated by Ally Hassan Tambwe (PW1), the deceased's uncle who was present at the mortuary. The medical report confirmed that the deceased had died and her death had been caused by asphyxia due to long-time compression of the neck. Dr. Alexander Jeremia Makalla (PW6) was the doctor who carried out the medical investigation of the dead body. The witness tendered a post- mortem report and the same was admitted as exhibit P3. 3
After completion of the medical related logistics at the hospital, the appellant who was already under arrest was then conveyed to the police station, where the case file for murder was opened. At the station, on instructions of PW4, D. 3725 D/SGT Oliver (PW5) interrogated the appellant and recorded his cautioned statement which was admitted as exhibit P5 at the trial. Eventually, the appellant was charged with murder, convicted and sentenced as it were. The appellant's defence was somewhat elaborate, but his point was very clear and certain as to who the likely murderer was. According to him, it was PW7 who allocated them the room at the guest house. Then himself, the deceased and PW7 proceeded to the room, but before he could settle, he noted that he had not had dinner yet So, because PW7 and the deceased were co-workers at the guest house, one a bar attendant, and another a watchman, he left them together in the room and went to look for food. When he came back after about twenty minutes, he found many people in the corridor and in the room he had rented, then he was immediately arrested for the offence he was not yet clear of. In summary, the appellant's defence was that, the deceased was killed in his absence, and the last person he left with the deceased was
PW7, the man he pointed an accusing finger as the prime suspect of the murder. At the end, despite the defence, he was found guilty, convicted and sentenced to suffer death as stated earlier on, hence the present proceedings. At the hearing of the appeal, the appellant was physically present in Court, but was also represented by Mr. Nehemia Nkoko, learned advocate. On the other side, were Ms. Monica Matwe, assisted by Mr. Cathbert Mbilingi, both learned State Attorneys, representing the respondent, Republic. Ms. Matwe informed us that they were ready to proceed on behalf of the respondent, although they had not filed any reply to the written submissions of the appellant. On 30th April, 2024, the appellant filed a six-point memorandum of appeal, which was supplemented by a second one he filed on 11th November, 2024 raising four grounds, bringing the total grounds of appeal, to ten. At the hearing, Mr. Nkoko implored us to consider the said submissions along with the account he would make orally. Otherwise, the learned advocate condensed the ten grounds into three broad complaints, namely; one that the cautioned statement, although relied upon, it was improperly admitted by the High Court, and; that the evidence of PW1 and PW2 was received in
violation of section 289 (1) and (2) of the Criminal Procedure Act, (the CPA). Two, that the circumstantial evidence which was largely relied upon by the trial court, was not watertight unerringly pointing to the appellant as the only person, in all human possibilities, guilty of the murder of the deceased and; three, that the prosecution case was not proved beyond reasonable doubt. To address us in resisting the appeal, was Ms. Matwe. In so doing, she only addressed the points that were raised and argued orally by Mr. Nkoko, but we did not hear her react to the points raised in the written submissions of the appellant, most of which we have summarized below. Since the respondent did not file any written submissions in reply to those of the appellant, we will determine the above points without having an advantage of considering what was the position of the respondent. Starting with the first complaint, Mr. Nkoko attacked the trial court for admitting the evidence constituted in the cautioned statement (exhibit P2) attributed to the appellant. He elaborated that exhibit P2 was illegally obtained and wrongly admitted during trial. He said, the recording and certification of the cautioned statement was wrongly done under section 10 (3) of the CPA instead of section 57 or 58 of the same Act. According to him, that omission rendered
the cautioned statement defective, citing this Court's decision in Idrisa Salehe Mwangombola v. R, [2025] TZCA 1299. As for illegal admission of the statement, the appellant relied on the case of Seleman Abdallah and Others v. R, [2010] TZCA 330. Of course, the learned counsel made other arguments attacking the exhibit, but the strongest of all were the above two. He prayed that the exhibit ought to be expunged. In reply to the issues raised in the above complaint, Ms. Matwe submitted that, according to the record of appeal, the statement was recorded under section 57 or 58 of the CPA and that certifying it under section 10 (3) of the CPA was perfect and had no issues. We did not hear the learned State Attorney reacting to the illegality in the manner the cautioned statement was admitted. Nonetheless the summary of his submission was that all was well with the cautioned statement and implored us to dismiss the appellant's complaint. For purposes of determining the issue raised in the first complaint, there are two sub issues that we are called upon to resolve. The first, is whether exhibit P2 was properly admitted in evidence, and the second is whether the cautioned statement recorded under section 57 or 58 of the CPA, was properly certified under section 10 (3) of the CPA.
We will start with the first sub issue which is whether exhibit P2 was properly admitted in evidence. In this case, the contested exhibit was tendered after the defense had objected to its admission because, the same was recorded out of time and that the same was extracted from the appellant through torture. Following the objection, the trial court carried out a trial within trial from page 39 to 45 of the record of appeal, then the ruling on the same aspect of the case is found at page 46 to 49 of the record of appeal. At page 49 of the record, the court stated in it's ruling: "For these reasons , ■ it is my finding that the accused's cautioned statement was taken in accordance with the law in that it was recorded within the prescribed time limit and the accused made it voluntarily. To that end, the objection raised is found to have no merit and is consequently dismissed. The cautioned statement is received and admitted in evidence as exhibit P. It is so ordered. Hon. P. M. Kente JUDGE 05 / 11 / 2018 ." Consequent to the above order, the proceedings continued at page 50 as follows: 8
"Date: 05/11/2018 Coram: Hon. P. M. Kente, J., For the Republic: Mr. E. Banturaki and Ms. Kimario, State Attorneys, Accused Person: Present in person. C.C: M. M. Siraki Ruling delivered in open court Hon. P. M. Kente JUDGE 05/11/2018. Bantulaki: We now pray the court to resume, so as to proceed with the main trial. Court: Court resumes and assessors are asked to take their positions. Hon. P. M. Kente JUDGE 05/11/2018. Bantulaki: My Lord, we not pray to proceed with the testimony by Sargent Oliver. Court: The accused's cautioned statement is admitted as exhibit P2. Court: PW5 is recalled so as to continue with his testimony in chief and he is reminded that he is stiil under oath . PW5 is further X 0: I pray to read the accused's cautioned statement Court: The accused's cautioned statement is read out loudly in court.
PW5 is further XD: That is all." [Emphasis added] The complaint of the appellant is that the cautioned statement was tendered before the witness was recalled and reminded of his oath, after the ruling in trial within the trial. Fortunately, it is not the first time that this Court is encountering a similar scenario. In the case of Seleman Abdallah (supra), in an armed robbery case, the accused objected to the cautioned statement, but that court did not conduct an inquiry which is called trial within a trial at the High Court level. It just admitted the statement. This Court, took time to detail the procedure necessary for admitting a cautioned statement which has been objected. The Court said: "The procedure entails the following: (i) When an objection is raised as to the voluntariness o f the statement intended to be tendered as an exhibit; the trial court must stay the proceedings. (ii) The trial court should commence a new trial from where the main proceedings were stayed and call upon the prosecutor to adduce evidence in respect o f that aspect of voluntariness. The witnesses must be sworn or affirmed as mandated by section 198 o f the Criminal Procedure Act, Cap. 20. 10
(iii) Whenever a prosecution witness finishes his evidence the accused or his advocate should be given opportunity to ask questions. (iv) Then the prosecution to re-examine its witnesses. (v) When aii witnesses have testified, the prosecution shall dose its case. (vi) Then the courtis to call upon the accused to give his evidence and call witnesses, if any. They should be sworn or affirmed as [was] for the prosecution side. (vii) Whenever a witness finishes, the prosecution to be given opportunity to ask questions. (viii) The accused or his advocate to be given opportunity to re-examine his witnesses. (ix) After ail witnesses have testified, the accused or his advocate should dose his case. (x) Then a ruling to follow. xi) In case the court finds out that the statement was voluntarily made (after reading the ruling) then the court should resume the proceedings by reminding the witness who was testifying before the proceedings were stayed, that he is still on oath and should allow him to tender the statement as an exhibit. The court 11
should accept and mark it as an exhibit The contents should then be read in court. (xii) In case the court find out that the statement was not made voluntarily, it should reject it ." [Emphasis added] In other words, after a ruling has been made that a cautioned statement was made voluntarily like it happened in this case, it was incumbent upon the trial court, as the very first thing to do was to resume the proceedings in the main trial, remind the witness that he is on oath so that he tenders the statement which has been found to have been made voluntarily. This is the law and practice in both the subordinate courts and the High Court when exercising original criminal jurisdiction. See also this Court's decisions in several other cases including Rashid and Another v. R, (1969) E.A. 138 and recently in Gibe Masasila v. R, [2026] TZCA 86. In the latter case, two cautioned statements were admitted and read during the min trial, that is before the witness was recalled to resume the main trial and the Court stated: "This, in our respective view, occasioned unfair trial on the appellant's part, as such, exhibits P3 and P4 were wrongly introduced in evidence and indeed should not have been 12
acted upon. Accordingly, we proceed to expunge them." In this case, the cautioned statement was admitted twice. In the ruling on seeking to establish voluntariness at page 49, the statement was admitted as exhibit P. The statement was also admitted as P2 by the trial court immediately after the assessors took their respective positions. Thus, the exhibit was initially admitted without being tendered by any witness. As the statement was admitted before the witness was recalled to the stand, exhibit P2 was unlawfully admitted. When an exhibit is illegally admitted, the unavoidable order to make, is to expunge it. We thus expunge the alleged appellant's cautioned statement for the above reasons. As that eventuality has completely eliminated exhibit P2 from the record, we find inconsequential any investigation as to whether the same exhibit was recorded or certified properly. In arguing that second segment of the first ground of appeal concerning a procedural flaw in terms of section 289 (1) and (2) of the CPA, Mr. Nkoko submitted on the first point which was raised by the appellant in his written submissions that PW1 (Ally Hassan Tambwe) and PW2 (Hamis Hamis Matei) were not listed as witnesses during committal proceedings. Thus, he argued that, those two witnesses were not supposed to give evidence without a notice of IB
adding them under section 289 (1) and (2) of the CPA (now section 308 (1) and (2) of the CPA R.E. 2023). In this respect, the appellant relied on the case of Hamis Meure v. R, [1993] T.LR. 213, where it was held that a witness whose name is not listed during committal proceedings shall not be called to give evidence without first giving notice to the other party under the above section. This point took us to pages 13 and 14 of the record of appeal where during committal proceedings the following transpired: "Court: Parties are directed to supply the list and addresses o f their witnesses. Sgd Hon. I. MsackyRM 08/09/2015." Prosecutor: The following witnesses and their respective addresses will be called at the trial.
- Thobias S. Walelo, Central Police Morogoro, Afisa wa Polisi;
- Abdallah Hussein, Morogoro Kihonda;
- John Emmanuel ' Kichangani, [Mwenyekiti] wa Serikali ya Mtaa;
- Hamis Makey, Kichangani Karakana;
- Mwajabu Shabani, Kichangani Morogoro;
- Tobias John Mwasongo, Karakana Kichangani Morogoro; 14
7 . Ally Hassan Kambi, Kichangani Morogoro; 8. Hadija Rashid Shomari, Sadani Mji Mpya Morogoro; 9. F 3248 D/CPL Mjarubi Mobile No. 0714 123400; 10. F 3725 D/SGT Oliver, Police Line Morogoro Mobile No. 0789 909002; 11. Dr. Alexander Makalla, Box 110 Morogoro, 1717539130; Accused: I [do] not intent to call witnesses, I will not tender any exhibits. Court: Section 247 o f the CPA Cap 20 R.E. 2002 is complied with." Sgd Hon. I. Msacky RM 08/09/2015." Our task was then to check whether PW1 (Ally Hassan Tambwe) and PW2 (Hamis Hamis Matei) were among the intended witnesses that were listed by the prosecution above. Our search took us to pages 24a and 24b of the record of appeal where the evidence of PW1 (Ally Hassan Tambwe), the inclination being that maybe he is also called Ally Hassan Kambi who was listed during committal proceedings. During his evidence, the witness mentioned his name to be Ally Hassan Tambwe and did not state that he was also called Ally Hassan Kambi. There is nothing on record 15
suggesting that the two names belong to the same person. In our view, had the prosecution wanted to show that the names belong to one and the same person, during re-examination of Ally Hassan Tambwe at page 26 of the record, the witness would have been led to testify that his other name was Ally Hassan Kambi. However, when the prosecution was called on to re-examine the witness at that page of the record, the prosecution had no questions to put to the witness Ally Hassan Tambwe. The other witness is PW2 (Hamis Hamis Matei). The name in the above list which remotely resembles it is Hamis Mackey. Suspecting that this person Hamis Hamis Matei who appeared as a witness, we had to carefully study his evidence to see whether, he testified to be known also as Hamis Mackey. Hamis Hamis Matei was not reexamined at page 28 of the record of appeal, where it was expected that he would have cleared the issue with his names, but that was not the case. Thus, Ally Hassan Tambwe and Hamis Hamis Matei, PW1 and PW2, respectively, were not listed as prosecution witnesses during committal proceedings for purposes of prosecution of the appellant. We will then proceed to determine as to what to do with the evidence of witnesses who were not listed at committal 16
proceedings, and the relevant section is 289 of the CPA which provides that: "289.- (1) No witness whose statement or substance of evidence was not read at committal proceedings shall be called by the prosecution at the trial, unless the prosecution has given a reasonable notice in writing to the accused person or his advocate o f the intention to call such witness. (2) The notice shall state the name and address o f the witness and the substance of the evidence which he intends to give. " [Emphasis added] There is one point we must clarify. We did not find on record, any notice of calling an additional witness in terms of the above law. And that is not the first time that the Court is coming face to face with the difficulty. In the case of Peter Charles Makupila @ Askofuv. R, [2021] TZCA 197, this Court having founditself in a similar scenario, this is what it said: "As for PW1, the learned State Attorney has invited us to treat Anton Makuka o f Msata Bagamoyo named in the committal proceedings to be the same as Anthon Steven who also introduced himself to be staying at 17
Msata Bagamoyo when he gave evidence on 29/11/2018. Much as we may agree with her that they are from Msata Bagamoyo, the names, on the face o f it , are completely different After all, this was a matter to be resolved by the prosecution during trial not now. We accordingly decline the invitation. That said, it is trite law that no witness whose statement or substance of evidence was not read at the committal proceedings shall be called by the prosecution at the trial unless a reasonable notice in writing is issued to the defence side of its intention to do so. The provisions o f sections 246 (2) and 289 (1), (2) and (3) of the CPA are ail to that effect." [Emphasis added] We therefore agree with the appellant that PW1 and PW2 were not supposed to be called as witnesses. The act of calling them as it happened in this case, violated the provisions of section 289 (1) and (2) of the CPA which is now section 308 (1) and (2) of the same Act The consequences of such violation, is to expunge the witnesses' respective offensive testimonies from the record, as we did in Itozya Amos @ John Teru v. R, [2024] TZCA 1181, where this Court stated:
"There is also no denying that the prosecution did not give notice to the appellant or his advocate in writing to have the above 5 witnesses called as additional witnesses in terms o f section 289 (1) o f the CPA... The reception o f the evidence o f the said 5 prosecution witnesses was received contrary to section 289 o f the CPA. ..As to what is the consequence of the evidence given in violation of sections 246 (2) and289 (1) o f the CPA, the law is settled. The evidence taken in contravention of the said provisions of the law is liable to be expunged from the record." [Emphasis added] See also this Court's decisions in Peter Charles Makupila @ Askofu (supra); and Hamis Meure (supra). Thus, without any further ado, we expunge the evidence of PW1 and PW2 from the record of this appeal. Thus, overall, we find merit in the first ground of complaint. The second complaint was that circumstantial evidence upon which the trial court based a conviction of the appellant, was not watertight and the third was that, the case was not proved beyond reasonable doubt. We will resolve these complaints together, for they are closely intertwined.
Submitting on both the second and third complaints, Mr. Nkoko pointed out, first that there were material contradictions in the prosecution evidence in three areas; one, PW7 was not coherent in his evidence. He referred us to page 63 of the record of appeal, where that witness stated the exact date of the murder, but on page 67 of the same record during cross examination, he said that he did not remember when exactly did the murder happen. Two, that there were major contradictions in the evidence of PW2, PW3 and PW7 as to where the appellant was actually found in the room. Whereas PW2 and PW3 said that they found the appellant in the bathroom, PW7 said that the appellant was found sitting on the same bed where the body of the deceased was. That mismatch in their evidence undermined the credibility of the said witnesses, argued the appellant, citing the case of Mathias Timothy v. R, (1984) T.L.R. 84, where this Court stated that where a witness lies on a particular aspect of the case, it is dangerous to believe the same witness on the other particulars. With the contradictions, he prayed that this court be pleased to hold that PW2, PW3 and PW7 were not credible witnesses and discredit their evidence. In reply, Ms. Matwe submitted that the trial court was right to consider the contradictions and adjudge them 20
minor and inconsequential. Three, Mr. Nkoko stated that the evidence of PW7 referred to SADA as the name of the deceased. He did not make any reference to Zalia Kambi, the deceased. His point was that, according to PW7, the deceased's name was Sada, while the rest of the witnesses stated that the deceased was Zalia Kambi. To Mr. Nkoko, the evidence of this witness had no relevance to the charge for it did not prove it. In reply to this argument, Ms. Matwe submitted that one person can be referred to, by more than one names. Therefore, it was not surprising to find on record that other witnesses referred to the deceased as Zalia Kambi and PW7 referring to her as Sada. In supporting her argument, the learned State Attorney relied on this Court's decision in Juma Yahya Magunira v. R, [2025] TZCA 1313, arguing that the issue of variance in the names of victims in the charge and in the evidence is a defect curable under section 388 of the CPA, now section 411 of the CPA R.E. 2023. The above appellant's complaints of inconsistence in the prosecution evidence, simply portray this; one, PW7 was not a credible witness to have his evidence accorded any weight or reliability following the incoherence in his evidence, and; two, even if his evidence would not have been discredited for incoherence within itself, his evidence would not have any evidential weight to
prove the death of the deceased because of mentioning Sada as a person who was killed, instead of Zalia Kambi cited in the charge as the deceased. In this jurisdiction the position of law is that, although an appellate court may not assess the credibility of a witness by considering his demeanor which is the exclusive domain of the trial court, nonetheless, an appellate court has ability to determine credibility of a witness by considering consistence and coherence in the evidence that the witness adduces. See this Court's decision in Shabani Daudi v. R [2004] TZCA 84, where this Court observed that: "The credibility of a witness can also be determined in two ways; One, when assessing the coherence o f the testimony o f that witness; Two r when the testimony o f that witness is considered in relation with the evidence o f other witnesses including that o f the accused person. " [Emphasis added] As for PW7's incoherence in his evidence; going through the record, this is what we found as his evidence at page 63 of the record of appeal: 22
"On 22/02/2015 at Stavi, there was a murder that occurred. The person who was murdered was one lady with the name o f SADA. She was a bar attendant at Stavi ." [Emphasis added] However, at page 67 of the same record of appeal, during cross examination when asked as to when the murder occurred, he responded: "I do not remember exactly the year that the incident occurred." [Emphasis added] The same position was repeated during re-examination at the same page, 67, where PW7 affirmed: 7 said I worked at Stavi for three years. I don't remember exactly the year the incident occurred since it is long time, about five years." [Emphasis added] It is our finding therefore that, by PW7 testifying that the deceased died on 22n d February, 2015, and at the same time stating that, because of lapse of time, he had no memory as to when the deceased died, is a major incoherence, not expected of a reliable and credible witness. Thus, we agree with the appellant that the credibility of PW7 was, as such, badly undermined. 23
The other point that was raised and argued orally by Mr. Nkoko was that, the evidence of PW7 did not prove the charge, on account of mentioning the name of the deceased as Sada, as opposed to Zalia Kambi, the name mentioned in the charge sheet. He also stated that, that evidence on the name of the deceased was in contradiction with the evidence of other witnesses on the name of the deceased like PW1 and others. The complaint on the inconsistence of the evidence of PW7 in respect of the deceased's name in relation to the evidence of PW2 and PW3 is unfounded because, the evidence of PW2 has already been discarded, and as for PW3 the record does not bear any testimony that he mentioned any name of the deceased. Further, we have carefully studied the evidence of all witnesses of the prosecution and even that of the appellant, and are satisfied that, all witnesses were referring to one and same person. So, we dismiss the complaint seeking to infer that Sada and Zalia Kambi were different persons. The second argument of the appellant submitting that the case was not proved beyond reasonable doubt is that the prosecution did not call a material witness, one John who was the guest house attendant, despite such a witness being listed as a witness during 24
committal proceedings. On this aspect, the appellant moved the Court to draw an adverse inference against the prosecution case, relying on the case of Boniface Kundakira Tarimo v. R, [2011], TZCA 456. The first and foremost premise we wish to highlight is that, as per the law of evidence in this jurisdiction, failure by a party to call a material witness without sufficient reasons being shown, the court is entitled to draw an adverse inference against that party. See this Court's decision in Hemed Saidi v. Mohamed Mbilu [1984] T.L.R. 113. In this case according to the written submissions of the appellant, it was from the prosecution's evidence that there was on duty a person called John who was a guest house attendant on the day that the appellant hired a room at the guest house to spend a night with the deceased. According to the appellant, that attendant was material to the case at the trial. Just as indicated earlier on, as the respondent filed no reply to the written submissions and no oral submissions were made to contest the submissions of the appellant, we determined this complaint without considering the position of the respondent.
As to the issue of one John being a material witness, we tend to agree with the appellant, and we will give our reasons, in view of what was revealed by PW7, the guest house watchman. According to the security guard, on 22n d February, 2015 he reported at his workplace at 22:00 hours in the night, and around 23:00 hours, he saw the appellant and the deceased going to room No. 8A. Thereafter, the appellant got out of the room wanting another room which PW7 was unable to offer for he had no keys for other rooms. The witness also stated that later he went to his place of work, from where he heard "noises". He went around to see where "noises" were from. He found nothing outside. Later he entered inside the guest house and went to the accused's room and knocked as he suspected "sound/voices" were from that room. When he knocked the door, the switch inside the room went off. He became suspicious and asked if everything inside was fine, which inquiry received a positive confirmation from the appellant. Despite that assurance, the witness was still suspicious, so he decided to go and call John, who told the witness to remain guarding the room as he went to call another lady called Mwajabu. Later Mwajabu and John went to call the police officer who was living in the neighborhood and the local leader. That narration is paraphrased from pages 63 to 65
of the record of appeal. At page 66 of the record, the witness stated that he did not know how many rooms were there at the guest house, and also that he was not responsible to allocate rooms to guests. The above story raises questions, which demonstrate that a guest house attendant, one John, was indeed a material witness in the case, and we will endeavor to demonstrate: first, if the guest house had an attendant, John, why would issues of allocating rooms or shifting guests from one room to the other concern a security guard and not the attendant? This question is relevant because PW7 said that when the appellant wanted to relocate from one room to the other, he approached him for assistance. Unless there was evidence to the contrary, in the normal course of hospitality or hotel business operations, watchmen manage issues of security, and not customer service or logistics as it happened in this case. Second, if truly John was on duty at his work station, which would normally be in the guest house at the time of the incident, how would it have been easier for the security guard to hear "the noises" than John? Unless there was evidence to the contrary, which we were not made aware of, common practice has it that, security service in motels, lodges, hotels or guest houses have sentries outside the main building, and customer service and administration personnel, would 27
normally have work stations within the building. In this case, it was the reverse, the watchman from outside the building could easily hear "noises" from guest rooms but not an attendant. This is so because, the witness said after hearing the "noises" is when he called John. This scenario, in our view, is least likely, otherwise the evidence of John was needed to clarify how would that be possible. Third, considering the gravity of the crime that is a murder incident at one's premises, it would be expected that a witness with some mandate as a spokesperson at the guest house more than a watchman would be expected to be called and give evidence. In this case, at least John (who was around during the incident) would have acted in that capacity, but certainly not a watchman. In view of the above, we hold that John was a material witness, he had a story to tell, which remains untold as highlighted above. Next for our consideration on this very point, which will not however take much of our time, is to examine whether there were reasons adduced as to why the said John was not called. On this point, we thoroughly scrutinized the record of this appeal but were unable to locate a place where the reason for not calling John was disclosed. Thus, we draw adverse inference against the prosecution case as we did in the case of Azizi Abdalah v. R [1991] T.L.R. 71. 28
The third argument that the learned advocate submitted upon, was that it was erroneous for the trial court to rely on the alleged oral confession to PW4, without exercising extreme caution on the dangers of convicting based on oral confession without corroboration. On this aspect, Mr. Nkoko relied on the case of Hemed Hamis Ally v. R, [2026] TZCA 3. In reply to that point, Ms. Matwe submitted that, the complaint was misconceived because in convicting the appellant, the court did not rely on such evidence. We have carefully studied the record of appeal, particularly the impugned judgment in order to find out whether the complaint is authentic. Relevant to the issue under consideration, is the court record at pages 268, 269 and 270 where the trial court in its judgement when listing the factors which implicated the appellant, stated: "In this case, the circumstances which implicates the accused with the charge o f murder are: First.. (N/A) Second... (N/A) Third, is the testimony o f PW4 that upon arrival at the scene o f crime and asked the accused as to what had happened 29
the accused confessed to have strangled the deceased to death as she denied him sexual intercourse. This fact was also recorded in the accused's cautioned statement (Exhibit P2) which is the accused cautioned statement In examining the above narrated pieces o f evidence, one cannot put less weight to the same since it goes hand in hand with what the accused confessed when his cautioned statement was taken without being forced...Therefore, such piece of evidence cannot be ignored." [Emphasis added] In addressing the issue posed, by revisiting the Evidence Act and this Court's decisions, we will engage into a brief discussion on the law on oral confession in this jurisdiction. First according to section 3 (1) (a) of the Evidence Act, a confession under the law may be oral or by conduct or a combination of both, oral and by conduct. That section provides as follows: "3. - (1) In this Act, unless context otherwise requires - "confession"means- (a) words or conduct, ora combination o f both words and conduct, from which, whether taken alone or in conjunction with other facts proved, an
inference may reasonably be drawn that the person who said the words or did the act or acts constituting the conduct has committed an offence [Emphasis added] Therefore, as a matter of law, oral confession is admissible in evidence and may be relied upon to convict the accused. However, according to decided cases by this Court, reliance on such evidence is not automatic or without defined criteria. This evidence, the alleged oral confession has a couple of issues; One, according to PW4, when he got to the scene of the crime, he found not only the appellant seated on a coach, but also many other persons including, PW1, PW2, PW7 and police officers who were on patrol. The problem of this evidence is this, despite the significance of this piece of evidence (the evidence of the appellant confessing the murder), only PW4 testifies on this aspect of the case. We find this to be rather unusual, that if the appellant confessed to have killed the deceased in the presence of all those people that PW4 mentioned, it does not add up that no other witness heard the confession, for no other witness mentions to have heard it. Two, a careful reading of the above quoted part from the judgement of the trial court, the oral confession was corroborated by 31
the appellants cautioned statement, exhibit P2. That is erroneous because the cautioned statement was retracted whereupon a trial within a trial was conducted. That means, the cautioned statement in order to be relied upon, needed corroboration. It is settled law that the evidence that needs corroboration has no corroborative value; it cannot corroborate another piece of evidence. See this Court's decision in the case of Ndalahwa Shilanga and Another v. R, [2011] TZCA 465. In other words, the oral confession remained evidentially inadequate to qualify for being relied upon to convict the appellant. The other reason is that, exhibit P2, that the trial court relied upon to support the oral confession was admitted illegally and we already expunged it from the record. Three, for the trial court to rely on oral confession of the suspect to convict him, the convicting court must exercise great caution as per this Court's decision in Shayo and Others v. R, (1998) T.L.R. 198, at 199. Likewise, in Hemed Hamis Ally (supra), this Court observed that, before a trial court can rely on the oral confession of the suspect, the convicting court must establish that the following conditions exist; first, a carefully evaluated evidence on the credibility of the witness to whom the confession is alleged to have been made; and second, such confession must be treated with 32
significant caution. One point we must add here, when relying on oral confession to convict a person accused of the offence charged, the trial court must record the fact that it carefully considered the credibility of the witness to whom the confession was made and that it found that witness credible. The court must also state that it exercised extreme caution and warned itself of the dangers of convicting the accused based on such evidence. In this case, going through the passage quoted from the judgment of the trial court, not only that there was no extreme care or significant caution recorded as having been exercised, we did not find any evidence that the trial court exercised any care or caution at all. The court only found comfort in the match between the alleged oral confession and exhibit P2, which exhibit we have already expunged. Therefore, we agree with Mr. Nkoko that the alleged oral confession was improperly relied upon. In summary, this far we have made the following decision points; one, we expunged the cautioned statement on account of the same being tendered and admitted in the ruling of the trial within the trial as well as being retendered before resuming the main trial, and; two, the evidence of PW1 and PW2 have been expunged because, the witnesses were called without there being a notice to 33
call them as additional witnesses, contrary to law. Three, we drew an adverse inference against the prosecution case, because John, the guest house attendant, being a material witness was not called as a witness without giving any reasons for not doing so, and; four, the evidence of PW7, the watchman has been deemed unreliable and accorded no weight for being incoherent on material aspects. Five, we declared the alleged oral confession of the appellant to PW4 to have been improperly relied upon to convict the appellant. Considering the above points, it is our firm decision that the prosecution case was shaken to the core, and badly weakened; leaving it hollow at the very brink of collapsing on its own. We thus, allow the second and third ground of appeal that the circumstantial evidence was not watertight and the case was not proved beyond reasonable doubt. In view of the above outcome, we think it is unnecessary to start tackling the final point that the appellant was not the last person to be seen with the deceased but PW7, the watchman. That attempt could be of any use, had the prosecution first established a case against the appellant beyond reasonable doubt. Finally, we allow the appeal, vacate the decision of the trial court and quash the conviction of the appellant. The death sentence 34
that had been imposed upon the appellant is hereby set aside. We consequently order his immediate release from prison unless he is held there for some other lawful cause. DATED at DODOMA this 28thday of May, 2026. Z. N. GALEBA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL The Judgment delivered virtually, this 28th day of May, 2026 in the presence of Appellant in person unrepresented, Ms. Rose Ishabakaki, learned State Attorney for the Respondent and Mr. Oscar Msaki, Court Clerk; is hereby certified as a true copy of the original. 35