Paulo Kipara Laizer vs Republic (Criminal Appeal No. 343 of 2023) [2026] TZCA 419 (16 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: MWANDAMBO. J.A.. MWAMPASHI. J.A. And MLACHA 3.A.) CRIMINAL APPEAL NO. 343 OF 2023 PAULO KIPARA LAIZER................... .......................................APPELLANT VERSUS THE REPUBLIC .................................. ........ ..................... RESPONDENT (Appeal from the Decision of the Resident Magistrate's Court of Arusha at Arusha) f Mrio. PRM. Extd-Jursd) dated the 14th day of February, 2023 in Criminal Sessions Case No. 64 of 2020 JUDGMENT OF THE COURT SP February & Id*1April, 2026 MLACHA. J.A.: The appellant, Paulo Kipara Laizer was arraigned at the Resident Magistrate's Court of Arusha at Arusha exercising extended jurisdiction in Criminal Sessions Case No. 96 of 2020 charged of murder contrary to section 196 of the Penal Code. The particulars attached to the charge showed that he was alleged to have murdered Ndomononi Siyaga @ Nanga on 27.02.2022 at Ngereyani Emboong'eti area "A", within Longido District, Arusha Region. He pleaded guilty to the charge and a plea of guilty was entered, but given the fact that murder is a capital offence punishable by death, the trial court refrained from convicting him and ordered a full hearing to give room for the case to be proved formally. The prosecution mounted a trial which involved 8 witnesses who tendered two exhibits; the Post Mortem Examination Report and the Sketch Map admitted as Exhibits PI and PW2 respectively. The appellant was the sole defence witness and had no exhibit to tender. Convinced that the prosecution had proved its case to the hilt, the trial Magistrate convicted the appellant and sentenced him to the mandatory sentence of death by hanging. Aggrieved by the conviction and sentence, he has lodged the instant appeal. Briefly stated, the evidence upon which the appellant was found guilty and convicted was as follows: Naishoka Kipara Laizer (PW4), the mother of the appellant was at home on 27.07.2022 at 10:00 am when he saw the appellant and his wife (now deceased) getting out. The appellant told her that they were going to cut bush thorns (Masanzu) locally used in building a cattle kraal (boma). They headed to the forest. Keno Kipara (PW5) who was grazing goats nearby saw them entering the forest at around 11:00 am. The appellant returned home alone at 02:00 pm but could not say anything about the deceased. Being suspicious of what might have happened to the deceased, PW4 sent his 2 other son, Oleitai Kipara (PW6) to go and look for her. PW5 who had seen the appellant entering the forest with the deceased led PW6, Supeti Philipo (PW2), who was the village Chairman and other people to the forest where they saw the body of the deceased covered with tree branches and grasses. Looking closer, he noted that it had a cut wound on the neck and a piece of cloth on the mouth. PW2 informed Christina Alais Kamunga; the Village Executive Secretary (PW3) on what had happened. PW3 conveyed the information to the police and Inspector Balton Jackson Kamwaya (PW10) led a team of police officer who included E 7167 D/SGT Deogratius (PW9) to the scene of crime. Both PW9 and PW10 said that the body of the deceased had dust and appeared to have been dragged from some place before it was finally dumped in the area and covered with grasses and tree branches. They also saw a cut wound on the neck and a piece of cloth inserted in the mouth. They picked the body and sent it to hospital. The account of PW6, a brother of the appellant, was that he met the appellant that day at around 4:45 pm as he was coming from the market and asked him as to where he was heading to which he replied that he was going to the market to purchase snuff (locally known as ugoro) and soap. When PW6 told the appellant that the seller of snuff had already left meaning that going the market was meaningless, the appellant remained silent and went ahead nevertheless. Upon reaching home PW4 told PW6 that the appellant had gone to the forest with his wife who was nowhere to be seen and directed to look for her. As he was on the search, he met PW5 who told him that he saw them heading to the forest pointing at some footmarks. PW5, PW6 and other villagers followed the footmarks. Moving ahead, they saw the body of the deceased who was covered by grasses and trees. Dr. Jisabo Ngasa Maleba (PW1) who conducted the autopsy of the body of the deceased had the opinion that death was caused by excessive bleeding from the cut wound. He recorded his findings in the Postmortem Examination Report showing that large veins of the neck were cut by a sharp instrument and the oesophagus was also cut. Taking into account that the appellant was the suspect and had disappeared from his home place, PW2 assigned Paulo Mafuta (PW7) and Lekakenya Sailepo Lekakenya (PW6) to arrest him. In the course of the search, PW6 and PW7 got a report that the appellant had boarded a car planning to escape. ITiey moved ahead of the car using motorcycles, arrested and sent him to the police station. The appellant admitted that he left with the deceased to the forest to cut thorn bushes as alleged but denied killing her. His story was that they entered the forest which had a lot of animals and while there, a group of hyenas came and pulled the deceased to the bush. As he could not fight back given their number, he returned to the village to seek for assistance. He met PW6 and told him that the deceased had been attacked by hyenas but could not get any assistance. He went to the market and delivered the massage to people but he was ignored. As he was moving around in the village looking for assistance, a police car arrived and put him under arrest accused of killing the deceased. He distanced himself from the murder of the deceased claiming that she was killed by hyenas in the forest. After considering the evidence of prosecution witnesses coupled with exhibits PI and P2, the trial Magistrate was of the view that there was safficient evidence showing that the appellant was the one who committed the crime. In dismissing the defence that the deceased was killed by hyenas, she had this to say: one, hyenas had no knife to cut the neck of the appellant; two, hyenas had no ability to put a piece of cloth on the mouth and; three, hyenas had no ability to cut trees and grasses and cover the body of the deceased. She had the view that, 5 much as there was no nobody who saw the appellant killing the deceased, there was good circumstantial evidence pointing that the crime was committed by none but the appellant. She arrived at this conclusion after taking into account that the appellant was the last person to be seen with the deceased and had offered no plausible explanation that he was not involved in the killing. She also took into account his conduct after the commission of the crime. She dismissed the defence of the appellant who was found guilty and convicted as intimated above. The appellant had two memoranda of appeal; the original memorandum with 9 grounds and the supplementary memorandum with 2 grounds, working out to 11 grounds of appeal. Mr. John Nicholaus Mseu, learned advocate representing the appellant, with the consent of the appellant, abandoned grounds number 1, 3 and 7 in the original memorandum of appeal and ground number 2 in the supplementary memorandum of appeal. The appeal was thus left with 6 grounds in the original memorandum of appeal and 1 ground in the supplementary memorandum of appeal. The grounds in the original memorandum of appeal carry the following complaints: one, the prosecution evidence is based more on suspicion than real evidence; two, prosecution witnesses were not credible; three, the certificate of seizure was not filled at the scene of crime; four, there was no evidence to prove the case beyond reasonable doubts; five, the defence of the appellant was not considered. The complaint in the supplementary memorandum of appeal was that, there were contradictions and in consistencies in the prosecution case. Ms. Janeth Sekule and James Pallangyo, learned Senior State Attorneys, who represented the respondent Republic opposed the appeal. They supported the conviction and sentence imposed to the appeliant. On taking the floor, Mr. Mseu combined complaints number 1, 2, 3 and 4 of the original memorandums of appeal and the complaint in the supplementary memorandum of appeal and argued conjointly; that there was no evidence to prove the case beyond reasonable doubt. Amplifying, he submitted that after the death of the deceased the appellant returned to the village and lived a normal life. Further, the existence of hyenas in the forest was not denied. He added that there was no proof that the footprints which led PW2, PW5 and other villagers to the body of the deceased belonged to the appellant. He challenged the applicability of the principle of the last person to be seen with the deceased saying that the explanation given by the appellant was enough. He urged us to agree with him that the deceased was attacked by hyenas not the appellant. He went on to submit that there was no seizure certificate issued rendering the evidence of PW10 unsatisfactory. He urged the Court to quash the conviction, set aside the sentence imposed on the appellant and set him free. In reply, Ms. Sekule submitted that the fact that the appellant is the one who murdered the deceased was not an issue right from the beginning because he pleaded guilty to the charge saying "Ni kwetf' meaning "/£ is trud' as appearing at page 23 of the record of appeal. She went on to submit that, the trial court entered a plea of guilty but did not convict him simply because murder is a capital offence which needed to be proved formally in court. She submitted further that, the conviction of the appellant was based on circumstantial evidence and the principle of the last person to be seen with the deceased which were properly established. Expounding, Ms. Sekule referred us to the evidence of PW4 and PW5 which showed that the appellant entered the forest with the deceased, a fact which was fully accepted by the appellant in his defence. She submitted that, PW4 saw the appellant 8 leaving at home with the deceased at 10:00 am to the forest but returned alone at 2:00 pm. PW5 who was grazing goats near the forest saw them entering the forest at 11:00 am. Ms. Sekule went on to submit that the appellant met PW4 at home but could not explain the whereabouts of the deceased. Ms. Sekule submitted further that, the conduct of the appellant after the commission of the crime shows that he is the one who committed the crime. Amplifying, she submitted that, when the appellant was told by PW6 that the seller of snuff was not at the market, he remained silent and went ahead implying that he had a different agenda. The learned Senior State Attorney made reference to page 50 of the record of appeal which shows that the appellant did not return home that day and contended that the appellant had a plan to disappear. She added that, if his story of deceased being attacked by hyenas was correct, there was no reason why he could not tell his mother (PW4) and his brother (PW6) when he met them and there was no reason of running away. Citing our decision in Rajabu Juma @ Kajabala vs Republic, [2025] TZCA 420, Ms. Sekule submitted that the appellant being the last person to be seen with the deceased had a duty to give a plausible explanation on the whereabout of the deceased. She stressed that there was safficient circumstantial evidence to convict the appellant. She could not find substance in the defence that the deceased was killed by hyenas. In addition, Ms. Sekule submitted that, there was no doubt that the deceased died an unnatural death given the existence of a cut wound on the neck supported by the evidence of PW1. She went on to submit that the existence of a cut wound on the neck shows that there was malice in the killing. Hie existence of a piece of cloth in the mouth had the same meaning. She admitted that there was no certificate of seizure but contended that failure to fill the certificate of seizure did not affect the conduct of the trial. On the failure to consider defence evidence, she submitted that it was considered from pages 103 to 105 of the record of appeal but rejected and urged the Court to dismiss the appeal. In rejoinder, Mr. Mseu reiterated his earlier submission and added that, failure to respond to PW6 does not mean that the appellant committed the crime. He went on to submit that the appellant left at home because PW4 and PW6 were already suspicious that he is the one who killed the deceased. He added that, the fact that the appellant was 10 the last person to be seen with the deceased does not necessarily mean that he is the one who killed the deceased. It is worth pointing out at this stage that, Mr. Mseu did not make any submission on credibility of witnesses, contradictions in evidence and failure to consider the defence of the appellant so we will not consider these complaints as we take them as abandoned. We had time to examine the evidence on record and consider the submissions of the parties. As it was obvious from the submissions of the parties, there is no dispute that Ndomoni Siyanga is dead and that she died an unnatural death. There is also no dispute that she was picked from the forest during the night of 27.02.2020 with a cut wound on the neck and a piece of cloth on the mouth. Her body which appeared to have been pulled from a distance with some dust, was found covered with trees and grasses. It was also a matter of common ground that the appellant entered the forest with the deceased holding a matchet who could not be found alive. The doctor who conducted the autopsy, based on the existence of the cut wound on the neck, crossing major veins and the oesophagus, had the opinion that the deceased died out of excessive bleeding. The issue for determination now is who killed the deceased. 11 None of the witnesses saw the appellant killing the deceased. The evidence before the court was circumstantial based on the principle of the last person to be seen with the deceased and the conduct of the appellant after the commission of the crime. We will start by examining the principle of the last person to be seen with the deceased. Luckily, there is a plethora of authorities in this area which include Mathayo Mwalim u & Another v. Republic [2009] TLR 271, Julius Kashorogoto @ Salvatory Rwehumbiza v. Republic [2021] TZCA 439, Miraji Idd Waziri @ Simwana & Another v. Republic [2020] TZCA 387 and Rajabu Juma @ Kajabala v. Republic [2025] TZCA 420. In the case of Mathayo Mwalimu & Another (supra) it was stated: "In our considered opinion, if an accused person is aiieged to have been the last person to be seen with the deceased, in the absence o f a plausible explanation to explain away the circumstances leading to the death, he or she will be presumed to be the killer. In this case, in the absence o f an explanation by the appellants to exculpate themselves from the death o f HAMISI 12 MNINO, like the court below, we too are satisfied that they are the ones who killed him". Similar observations were made by the Court in Miraji Idd Waziri @ Simwana & Another (supra) where it was stated: "The first factor is that the first appellant was the last person to be seen with the deceased. This principle has been developed by case law and it simply means that, where there is evidence that an accused was the last person to be seen with the deceased alive then there is a presumption that he is the killer unless he offers a plausible explanation to the contrary." The follow up question now is whether the appellant gave a plausible explanation that despite being the last person to be seen with the deceased alive, he is not the one who committed the crime. TTie law in this area shifts the burden to him, to give a plausible explanation that, despite being the last person to be seen with the deceased, he is not the one who committed the crime. The explanation given by the appellant was that while at the forest, a group of hyenas appeared and attacked the deceased and as he could not fight back, he returned to the village for assistance. He met his brother and some people at the market who could not give him any 13 assistance. Ms, Sekule did not accept this explanation and we think she is correct. We agree with her submission that circumstances do not suggest that the deceased was killed by hyenas. We share the views of the trial court that hyenas had no sharp objects to cut the neck, they had no ability to cut trees and grasses to cover the body of the deceased or put a piece of cloth on the mouth. If they were the ones who killed her, they could have eaten the body to the bones but that was not the case. The body appeared normal save for the dust and the wound on the neck. Further, if the appellant went back to the village for assistance from people to fight back to the hyenas, there was no reason why he could not tell his mother (PW4) and his brother (PW5), that the deceased had been attacked by hyenas. Tine explanation that the deceased was attacked by hyenas was thus a mere defence which had no logic and rightly rejected by the trial court. Next is the conduct of the appellant. It was the evidence of PW4 that the appellant returned home at 2:00 pm alone and could not tell PW4 on the whereabout of the deceased. He also met PW6 but could not explain the whereabout of the deceased. He took his way to the market to buy snuff despite being told that the seller of the product had gone. Further, he made an attempt to run away which was an indication 14 of a guilty mind. Finally, the appellant pleaded guilty to the charge as intimated above. These facts are inconsistent with the innocence of an accused person and are incapable of explanation upon any other reasonable hypothesis than that he is the one who committed the crime. See our decision in John Magula Ndongo v. Republic, Criminal Appeal No. 18 of 2004 (unreported). In Greyson Zakaria Mkumbi Mapendo and Another v. Republic, [2016] TZCA 808 it was stated that circumstantial evidence where established can ground a conviction of, however serious the offence can be. Finally, we will move to examine the failure to issue a certificate of seizure. The appellant was not clear on what was to be seized so as to have a certificate of seizure as part of the evidence in court. Assuming he was making reference to the machete, still we don't find the certificate of seizure to be an issue before us because there was no evidence showing that a machete was found with the dead body or with the appellant at the time of arrest warranting it to be seized. And if it was not found and seized, there cannot be a certificate of seizure against it. It follows that the complaint is misconceived and we dismiss it. 15 That said and done, we find no reason to interfere with the decision of the lower court which is upheld. The appeal is found to be devoid of merit and it is dismissed. DATED at DODOMA this 15 th day of April, 2026. L. J. S. MWANDAMBO JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL Judgment delivered virtually this 16 th day of April, 2026 in the presence of the appellant in person- unrepresented, Mr. Abdon Bundala, learned State Attorney for the Respondent/Republic, and Ms. Christina Mwanandenje, Court Clerk, is hereby certified as a true copy of the original ' D. P. KINYWAFU DEPUTY REGISTRAR COURT OF APPEAL 16