Alex Robert Mwakimbwala & Others vs Republic (Criminal Appeal No. 217 of 2022) [2026] TZCA 418 (16 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: MKUYE. J.A.. RUMANYIKA, J.A. And AGATHO. 3.A.^ CRIMINAL APPEAL NO. 217 OF 2022 ALEX ROBERT MWAKIMBWALA ................ ELIAS NICO MUSHI @ MANGI.................. . GIDION NTULO @ MWAMKINGA .............. VERSUS THE REPUBLIC . ................................... . .................................RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mbeya) (Nqunvale, J.1 dated the 4th day of April, 2022 in Criminal Sessions Case No. 30 of 2018 JUDGMENT OF THE COURT 17th March & 16th April, 2026. MKUYE, J.A.: Before the High Court of Tanzania at Mbeya, the three appellants, Alex Robert Mwakimbwala, Elias Nico Mushi @ Mangi and Gidion Ntulo @ Mwamkinga (the 1st, 2n d and 3rd appellants) and two other persons (not parties to this appeal) were charged for murdering Victoria Manase, contrary to sections 196 and 197 of the Penal Code, Cap. 16 R.E. 2022. The incident took place on 30th June, 2017, at Isanga area within the City, District and Region of Mbeya. 1 st APPELLANT 2 nd APPELLANT 3 rd APPELLANT 1 The brief background of this matter is as follows:- On 30th June, 2017, the police in Mbeya discovered the dead body of a woman, who later was identified as Victoria Manase (deceased), near the Isyesye burial place. The deceased was a loan officer at BRAC who had disappeared earlier that day after collecting TZS. 1,970,000.00 in loan repayment from clients in Isanga. An investigation centered on her stolen cellular phone which eventually led the police to the arrest of the first accused who admitted to the murder incident and implicated several accomplices. This discovery led to the arrest of five persons namely, Alex Robert Mwakimbwala, Elias Nico Mushi, Gidion Ntulo, Shaibu Mwinuka and Lusekelo Atupele (1s t to 5th accused persons at the trial court). It was the prosecution case that, the deceased Victoria Manase was working with BRAC as a loan officer. On the material date she was assigned to visit Pambogo and Isanga areas where she convened meetings with clients and she left Isanga at around 11:25 hrs. Meanwhile, it would appear that there was a group of persons which coordinated the murder plot with Shaibu Mwinuka acting as an overseer to give a signal to his accomplices when the deceased left her meeting. She boarded a bhajaj tricycle driven by Lusekelo Atupele, while Alex, Elias and Gidion (1st, 2n d and 3rd appellants) posed as fellow passengers. While the bhajaj was in motion, Elias Nico Mushi allegedly 2 strangled the deceased with the assistance of Alex and Gidion until she passed away. Following her death, the trio robbed her of her cash and mobile phone before abandoning her body at Isyesye area. Medical evidence later confirmed that the deceased's cause of death was asphyxia due to strangulation. During the trial, a number of witnesses corroborated the timelines and the links between the accused persons and the crime. Leonard Magoma (PW1) and Zeinab Kesi (PW9) both local leaders testified about witnessing the body and later accompanying the suspects as they retraced the crime route for the police. D 5517 D/Sgt Daniel (PW5), detailed tracking of the deceased's phone through various buyers including Stanley Stanislaus Hassan (PW6), Hured Salum (PW14) and Bariki Sanga, which eventually pointed to the first appellant. Furthermore, PW8 a Justice of Peace testified that the 1s t and 3rd appellants provided extra judicial statements admitting their involvement in the murder incident. The trial court, assisted by three assessors, ultimately found the 1s t, 2n d and 3rd appellants guilty of murder. It found that the appellants participated in the killing of deceased inside the bhajaj. On the other hand, the 4th accused was acquitted because he was not at the scene of crime while the 5th accused was also found not guilty since, the trial court found that he was a mere bhajaj driver not directly involved in the act of killing. The appellants, being aggrieved with the trial court's decision, have appealed to this Court on eight grounds of appeal which can be extracted as follows:- 1. None of the prosecution witnesses saw or arrested the appellants while killing the deceased. 2. Exhibits PE 7 for the 1st appellant and PE 8 for the 3rd appellant were recorded while the appellants were tortured at the police station as can be shown in extra judicial statement that "mtuhumiwa ana jeraha" 3. None of the cautioned statements, Exhs. PE 13 for the 1s t appellant, PE 9 for the 2n d appellant and PE 11 for the 3r d appellant were recorded in the presence of relatives or lawyers. 4. The testimonies of PW1 and PW9 failed to link the appellants with the crime as the appellants were under custody of police and were forced to go to the area where the body of the deceased was found in the previous day. 5. None of the appellants was found being in possession of the deceased's property Exh. PE 3 meaning that the doctrine of recent possession was not established. 6. The defence of the appellants was cogent and their exhibits ID 1, ID 2 and ID 3 for the 1st, 2n d and 3rd appellants, 4 respectively, showed that they were not at the scene of crime on the fateful day. 7. The cautioned statements for all appellants and extra judicial statements for the 1s t and 3rd appellants lacked corroboration. 8. As the justice of peace observed that the 1st and 3rd appellants had injuries, then the recorded extra judicial statements violated section 28 of the Evidence Act Cap 6 R.E. 2019. When the appeal was called on for hearing, the 1st, 2n d and 3r d appellants were represented by Messrs. Felix Kapinga, Chapa Alfredy together with Ms. Nyasige Kajanja, learned advocates, respectively, whereas the respondent Republic was represented by Mr. Alex Mwita, learned Senior State Attorney teaming up with Ms. Veneranda Masai, learned State Attorney. At the outset, Mr. Kapinga who argued the appeal on behalf of the other advocates abandoned grounds 1 and 3 and opted to argue grounds nos. 2, 5, 7 and 8 together while grounds 4 and 6 separately. He, also, prayed to adopt the written arguments in support of appeal filed earlier on. Substantiating the ground of appeal challenging the procedure adopted in recording the appellant's cautioned statements and lack of corroborative evidence to such statements, Mr. Kapinga contended that, basically the appellants were convicted based on the deceased's cellular phone found with the appellants. That, the said cellular phone was recovered from Stanley Stanislaus Hassan (PW6) who said he got it from Hured Salum (PW14) who also said he got it from Bariki Sanga (who was not called to testify in court) who allegedly said he got it from the 1s t appellant. Mr. Kapinga argued that, in order to get the chain of movement of the said phone, Bariki Sanga ought to have been called as a witness so as to connect the 1s t appellant and PW14 and PW6. He said, failure to call him and without any reason advanced for such failure rendered the cautioned and extra judicial statements to lack corroboration to link the appellants with the offence committed. Apart from that, Mr. Kapinga questioned the identity of cellular phone (Exh. P3) as the certificate of seizure showed that the cellular phone was make TECHNO while PW6 and PW5 talked of a cellular phone make TECHNO Y4 whereas the phone tendered in court was TECHNO W.4 which tallied with the evidence of PW15 and the 1st appellant. For that matter, he argued, it was not certain as to which phone was referred to. Mr. Kapinga went on assailing the cautioned and extra judicial statements (Exhs. PE 7 and PE 8) that were taken contrary to the law. In particular, he argued that, the extra judicial statements were recorded against the Chief Justice Guidelines as the time of arrest of suspects was 6 not shown. He added that, as the Justice of Peace observed the 1st and 3rd appellants with fresh injuries in the hands and legs, the voluntariness of their extra judicial statements are questionable. He rounded it up that, it was wrong for the trial Judge to relay on extra judicial statements to convict the appellants. In relation to ground no. 4, it was Mr. Kapinga's argument that though the trial judge relied on the evidence of PW1 and PW9 on how the appellants showed the whole scenario of commission of the offence, it was unsafe to rely on their evidence as PW1 and PW9 were in a different motor vehicle from the police vehicle carrying the suspects. So, they could not be in a position to know what took place in that other vehicle (if they were induced or not). With regard to ground no. 6 that the appellant's cogent evidence including ID 1, ID 2 and ID 3 (showing the appellants were not at the scene of crime) was not considered, Mr. Kapinga submitted that the trial judge did not consider it adequately. He, therefore, urged the Court as a first appellate court, to step into the trial court's shoes and re-evaluate such evidence and come to its conclusion. Lastly, he prayed to the Court to find that the appeal is merited and allow it. 7 In reply, Mr. Mwita prefaced by declaring their stance that they did not support the appeal. Responding on the grounds relating to the cautioned and extra judicial statements, Mr. Mwita submitted that the trial Judge rightly convicted the appellants on the basis of cautioned and extra judicial statements. In elaboration, he pointed out that, the appellants objected to the admission of cautioned statements alleging being tortured, Exh. PE 13 for 1st appellant, Exh. PE 9 for 2n d appellant and Exh. PE 11 for 3rd appellant, but following trial within trials which were conducted, the same were found to be made voluntarily. He added that, even when the extra judicial statements were objected to be tendered, following trial within trials, they were found to be made by free agents and therefore were voluntarily made. Apart from that, he contended that, the trial Judge warned himself and found the same to be true as they had detailed account on what happened. While referring us to the case of Hamisi Athumani and 2 Others v. Republic [1993] TZCA 93, he argued that, principally the evidence of repudiated/retracted cautioned or extra judicial statements needs to be corroborated. However, the Court may rely on uncorroborated caution or extra judicial statement if it believes or it is satisfied that what is stated is the truth. He went on arguing that, in this case, the evidence of the cautioned and extra judicial statements was not the only evidence relied upon but 8 there was oral confession as per PW1 and PW9's testimonies to the effect that they heard when appellants confessed. To fortify his argument that even oral confession is admissible he referred us to the case of John Shini v. Republic [2020] TZCA 1747. He stressed that, even without the cautioned or extra judicial statements, the oral confession was sufficient to ground a conviction. At any rate, he said, the cautioned and extra judicial statements were corroborated by PW1 and PW9 evidence. He disputed the claim that as they were in a different motor vehicle they could not know what transpired in the vehicle carrying the suspect as being a mere assumption. Concerning the cellular phone, Mr. Mwita, at the outset, conceded that there was a contradiction between TECHNO Y4 and TECHNO W4. However, he said, PW5 mentioned the IMEI number that he used to track the phone. On failure to call Bariki Sanga who was given the phone by 1s t appellant and sold it to Hured (PW14) and later found its way to Stanley Stanislaus (PW6), he argued that, that person was not a material witness as he would have testified what Stanley Stanislaus testified that he sold it atTZS. 40,000.00. 9 As to the contradictions between TECHNO Y4 and TECHNO W4, he argued that it was cured by evidence of PW5 who tracked the phone through IMEI number though it was not known in which particular phone whether TECHNO Y4 or TECHNO W4. On the complaint that the defence evidence was not considered, it was Mr. Mwita's submission that the trial Judge considered it and since the nature of defence based on torture, he ruled out that it was an afterthought He added that, the 2n d appellant's defence of alibi was also considered (See page 382 of the record of appeal) but was rejected as he did not give prior notice to rely on it. He stressed that the cautioned and extra judicial statements, oral confession and the fact that the appellants led the police officers, PW1 and PW9 to the place where the deceased's body was dumped which was sufficient to ground a conviction. On the non-compliance of the Chief Justices' Guidelines for failure to ask the appellants on when (the time) were they arrested or to ask what caused the injuries they were found with, Mr. Mwita argued that it was not a requirement of the said Guidelines. In this regard he urged the Court to find the appeal unmerited and dismiss it in its entirety. 10 Rejoining, Mr. Kapinga reiterated his submission in chief and that the appeal be allowed. He added that, one, PW1 and PW9's evidence relating to oral confession was not credible as it raises doubts. See: John Shini's case (supra) page 15. Two, Hured (PW14) said he paid the money to Bariki Sanga who handed the same to 1s t appellant. For that matter, Bariki Sanga was a material witness to provide a link between the 1s t appellant and the cellular phone. Three, the Chief Justice Guidelines are required to be complied with. They are not for decor. Four, it was wrong to ground a conviction on the basis of cautioned and extra judicial statements. Having considered the rival submission in this matter, we think, the issue for our determination is whether the prosecution proved the case against the appellants beyond reasonable doubt. It is cardinal law that, in terms of section 3 (2) (a) of the Evidence Act, Cap 6 R.E. 2023, the onus of proving an offence lies on the prosecution and that the standard of proof is beyond reasonable doubt. See also: Chausiku Nchama Magoiga v. Republic [2023] TZCA 17810. We are now called upon to gauge whether the prosecution case met the required standards. There is no doubt that in this case the trial Judge, in convicting the appellants, relied on the 1st and 3rd appellants' extra judicial statements li which were tendered by PW8 as Exhs. PE7 and PE 8 respectively. He also relied on the 1s t, 2n d and 3rd appellants cautioned statements, Exhs. PE9, PE13 and PE11, respectively, in which the appellants confessed to have committed the offence. Though the said statements were objected on being tendered in court for being procured under torture, the trial court admitted them on account that they were made voluntarily. We also note that, before relying on such statements, the trial Judge warned himself and was satisfied that the confession of 1st, 2n d and 3r d appellants contained nothing but the truth. Apart from that the trial Judge found that the confessions were true as they corroborated the contents of post mortem examination report (PMER) and eye witnesses who observed the deceased's body having bruises on the neck suggesting strangulation; how the said statements gave detailed account on how the deceased met her death; and their participation in killing her. Moreover, the trial court took note of the fact that the appellants led and showed the police and witnesses the routes which the offence was committed. According to the record, trial court also considered the appellants' defence evidence and found that it did not raise doubt to the strong confession evidence given by them. The first complaint is lack of corroborative evidence of the cautioned statement and cellular phone as there was no linkage with the 1s t appellant for failure to call Bariki Sanga who could have shown it. As was submitted by Mr. Kapinga, the recovery of the cellular phone was the basis for apprehension of the appellants. Following the death of deceased investigations ensued by tracking her cellular phone which led to PW6 who was found in its possession. PW6 claimed to have bought it from Hured (PW14) who also claimed to have purchased it from Bariki Sanga (but did not testify) and that even when he paid TZS. 40,000.00 to Bariki, he handed it to the 1s t appellant. It was the appellants' argument that Bariki Sanga ought to have been called to testify in court so as to show the link between the phone and 1s t appellant, failure of which rendered the appellants' cautioned and extra judicial statements to be uncorroborated. On our side, much as we agree with Mr. Kapinga that, that was the scenario of recovery of the cellular phone, we do not agree that the said Bariki Sanga was a material witness in the matter at hand. This is so, due to the watertight confession of the appellants on their involvement in the commission of the offence. It should be noted that much as there were contradictions on the manner the cellular phone was referred to by witnesses such as TECHNO Y4 or TECHNO W4, the recovery of the cellular phone was done through tracking the IMEI numbers of the said cellular phone as per PW5's testimony who was assigned to investigate the case. We think, even if the said Bariki Sanga was called to testify, his testimony would have been the same as PW14 to whom he sold the phone at TZS. 40,000,00. This witness among others witnessed when Bariki Sanga handed on the purchase money to the 1s t appellant which was corroborative evidence of his involvement. It is clear that the identity of cellular phone (Exh. P3) was not certain as the certificate of seizure showed that the cellular phone was make TECHNO while PW5 and PW6 said it was a TECHNO Y4 whereas the phone tendered in court was TECHNO W4 tallying with the evidence of PW15 and the 1st appellant. We think, much as it was cured by PW5, such discrepancy might have been caused by the pronounciation of the two terms Y4 and W4. There are some reasonable similarities in their pronunciations. But again, it could be due to human capability of recollection on things happened long time ago. The offence was committed in June 2017 but the witnesses testified in between December 2021 up to April 2022. What is important is that the cellular phone in question was recovered through an IMEI number. Besides that, the confession by appellants corroborated the PW4's findings on the deceased's body which was seen with bruises on her neck 14 suggesting strangulation as was explained by appellants in their cautioned statements. On top of that, there is oral confessions which were made by the appellants to the police officers together with PW1 and PW9 when they went to show the place where the deceased's body was dumped. This was the best evidence coming from the appellants themselves. Moreover, the confession of the appellant leading to discovery of fact in issue is adequate corroborative evidence. See: Masumbuko s/o Matata @ Madata and Others v. Republic, [2010] TZCA 45; and Daniel Magutu @ Wansima @ Magutu v. Republic, [2026] TZCA 82. It has always been the best evidence comes from the accused/appellant. In this regard, we do not agree with the learned counsel for the appellants that there was no link between the cellular phone and the 1s t appellant. Much as that was not the only evidence relied upon, we are satisfied that there was overwhelming evidence showing that the 1s t appellant was involved in killing the deceased. Of course, we are aware of the appellant's complaint that the 1s t and 3rd appellants' extra judicial statements were taken in contravention of the law. Unfortunately, Mr. Mwita did not direct his arsenals on that complaint. It is however, a settled principle of law that recording of extra judicial statement should be guided by the Chief Justice Guidelines. There are factors which the justice of peace must satisfy himself/herself before recording the suspect's extra judicial statement including inspecting his/her body to see if there are fresh injuries suggesting that he might have been tortured. The other factors required to be observed by the justice of peace include: (i) the time and date of arrest (ii) the place he was arrested (iii) the place he slept before the date he was brought to him; (iv) whether any person by threat or promise or violence has persuaded him to give the statement; (v) whether he really wishes to make statement on his own free will; and (vi) that if he makes a statement, the same may be used as evidence against him. In this case, having gone through the 1st and 3rd appellants' extra judicial statements at page 285 (Exh. PE 7) and page 293 (Exh. PE 8) which were incidentally recorded by PW8 show that the 1s t appellant was found to have injuries on the hand and the 3rd appellant fresh minor injury on the right leg. PW8 testified to have seen a wound 1st appellant's hand (page 98 of record of appeal) and a wound on the 3rd appellant's leg. On further questioning PW8 admitted to have neither asked the time of the 1s t and 3rd appellants' arrest nor where they slept before being brought to him. Also, he did not ask the 1s t appellant's source of his 16 wound. The same applied to the 3r d appellant as he did not ask what caused the wound. It is trite law that the Chief Justice's Guidelines must be followed to the letter. [See: Peter Charles Makupila @ Askofu v. Republic [2021] TZCA 197]. Short of that, the extra judicial statement taken in contravention of the Chief Justice's Guidelines renders it to be fatally defective and it will be taken to have been recorded involuntarily and, hence, would be liable for expungement. It is not a mere question that it is not a requirement of the Guidelines to ask such questions as the learned Senior State Attorney tries to convince us. In view of the glaring anomaly in recording the 1st and 3rd appellant's extra judicial statements, we expunge them from the record. It should, however, be noted that the expungement of the extra judicial statement does not vitiate our earlier finding as the remaining oral confession and cautioned statements evidence is watertight. The appellants' other complaint is on the trial court's reliance on the evidence of PW1 and PW9 that appellants orally confessed and lead the search party to the scene of crime without any assurance if the confession were made voluntarily. Basically, oral confession is a kind of evidence which may be sufficient to ground a conviction against the suspect. See: Geofrey 17 Sichizya v. Director of Public Prosecutions [2020] TZCA 159. Apart from that, as was held by the Court in the case of Patrick Sanga v. Republic, [2010] TZCA 340, in terms of section 3 (1) (a) (b) (c) and (d) of the Evidence Act, Cap 6 R.E. 2023, a confession to a crime may be oral, written, by conduct, and/or a combination of all these or some of these. In short, a confession needs not necessarily be in writing and can be made to anybody provided it is voluntary. It is noteworthy that, in order for such oral confession to be sufficiently relied upon to ground a conviction, it must be made by a suspect before or in the presence of a reliable witness be it a civilian or not. See: Posolo Wilson Mwalyego v. Republic, [2018] TZCA 635. In this case, PW1 and PW9 testified among others that, the appellants confessed their involvement in commission of the offence or rather in killing the deceased. Moreover, they led the search party to the place the deceased's body was dumped. We do not agree with Mr. Kapinga that the alleged oral confession cannot be treated as such, since there was no assurance that they were made voluntarily given the fact that the appellants and witnesses were in different vehicles as the appellants were carried in the police motor vehicle and PW1 and PW9 were in a Noah vehicle and therefore, the appellants could have given the confession under torture. 18 We say so because, as was argued by the learned Senior State Attorney, such contention did not feature in evidence but a mere speculation. The witnesses were firm that the appellants did make such oral confession. We, therefore, find no merit on this ground and we dismiss it. In relation to the complaint relating to failure by the trial Judge to evaluate the appellants' defence evidence, we do not agree with Mr. Kapinga. We say so because it is crystal clear at page 28 of the record of appeal that the same was considered. For clarity, we leave the relevant portion of the judgment to speak for itself: "During defence hearing DW1, DW2 and DW3 raised complaint o f torture but trial within trial established that the same were mere after thought DW1 denied to have been arrested on J d day o f August 2017 but there was direct evidence from PW6, PW5 and PW14 that he was arrested on J d day o f August 2017, That being the case , I think in this case lies o f the accused persons corroborated the prosecution evidence, See: AHyudi Dauda (supra) and Felix Kisinyika v. Republic ’ Criminal Appeal No, 129 o f 2002 (unreported). The second accused person in his defence raised a defence o f alibi that on the date o f offence he was travelling from Dar es Salaam to Moshi for funeral o f his relative. Unfortunatelyhe 19 did not raise notice as required. His defence cannot hold water in the circumstances where his cautioned statement Exhibit No. PE 10 is straight forward that he committed the alleged offence o f murder. In the same trend DW3 distanced himself from the commission o f the alleged offence but his defence has raised no doubt to the prosecution case because he willingly confessed before the police officer and the Justice o f Peace that he committed the offence charged. Trend o f the defence witnesses carried lies which strengthen the prosecution case. For example , DW3 Gidion Ntuio testified that on the date alleged he committed the offence he was not present, he travelled to Mafinga. His evidence is overweighed by the prosecution evidence in Exh. PE 11 that he confessed before the police officer that he committed the offence charged. As a whole then the series o f evidence proves that the accused persons are the persons who murdered Victoria Manase and nobody else." As it can be seen in the above excerpt, the trial Judge evaluated the defence evidence of all the appellants and arrived at the conclusion that their evidence was an afterthought or rather it was overweighed by the strong prosecution case. It is, therefore, not true that the trial Judge did 20 not consider or evaluate it. The appellants' problem could be perhaps, they were not happy with the trial Judge's conclusion that their defence did not raise doubts to the prosecution's case. This is different from the defence case being ignored. In this regard, this ground also fails. With the aforesaid, we think, we can now venture to answer the issue we had raised in the affirmative that the prosecution proved the case beyond reasonable doubt. Consequently, we find that the appeal is devoid of merit and it is dismissed in its entirety. DATED at DODOMA this 9th day of April, 2026. R. K. MKUYE JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL Judgment delivered Virtually this 16th day of April, 2026 in the presence of Appellant in person and Mr. Augustino Magessa, learned State Attorney for the Respondent, and Ms. Christina Mwanandenje is hereby certified as a true copy of the original.