Shamsudin John @ Sikukuu Tulway vs Republic (Criminal Appeal No. 206 of 2023) [2026] TZCA 413 (15 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA ( CORAM: LILA, J.A.. FIKIRINI, 3.A. And RUMANYIKA. J.A.^ CRIMINAL APPEAL NO. 206 OF 2023 SHAMSUDIN JOHN @ SIKUKUU TULWAY ........... .................... APPELLANT VERSUS THE REPUBLIC .................. .................................................. RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Manyara) (Kamgzora, 3.) dated the 7th day of December, 2022 in Criminal Sessions No. 13 of 2020 JUDGMENT OF THE COURT 29th September, 2025 & 15th April, 2026 LILA. 3.A.: Shamsudin John @ Sikukuu Tulway, the appellant, was arraigned before the High Court of Tanzania, Arusha Sub-Registry, to answer a charge comprising two counts of murder. In those counts, it was alleged that he murdered one Asia John @ Selina Tulway and one Ahmed Shamsudin @ Cornel Mzengo, his wife and son, respectively. Upon his 1

denial of the accusations, trial ensued and was, at the conclusion, found guilty in both counts. He was sentenced to suffer death by hanging. The facts giving rise to this appeal, as discerned from the six prosecution witnesses paraded, are clear and straight forward. Asia John @ Selina Tulway (deceased wife) was married to the appellant and the marriage was blessed with three children one of them being Ahmed Shamsudin @ Cornel Mzengo (the deceased child). Later on, the appellant married another woman one Asha Hussein (young wife). Because of that, the relationship between the appellant and the deceased wife turned sour as a result of which the two wives stayed in different houses. Whereas the former lived in a rented house owned by one Israel, the father of Joshua Israel (PW3), the later lived in the appellant's house. It was some sort of a voluntary separation but the appellant paid regular visits to the deceased wife in the pretext of providing services to his children. It was on 31/10/2018 at 17:00hrs when one Akweline, the Village Executive Officer (VEO) also acting as Ward Executive Officer (WEO) of Hideti informed Idrisa Bashir Masawe (PW2), a Veterinary Officer, that there was a child's dead body floating on the waters of Hideti water pond commonly known as Guruhideti. PW2 went to the scene of crime and the 2

dead body was identified by PW3 as being of the deceased child. Besides identifying the dead body, PW3 informed PW2 that the appellant had a family quarrel at home. Acting on that clue, search for the deceased's mother ensued but was unsuccessful and suspicious of her being also murdered, search for the appellant started. At 18:00hrs, the appellant was arrested and taken to the scene of crime by Israel @ Bubu. Police arrived and took the appellant together with PW2, WEO and PW3 to the house the deceased wife stayed where they did not find her but, in the room she stayed, they found stool and blood stains. The police decided to take the deceased child's body to Katesh Police station. According to PW2, while on the way to Katesh Poiice station and after moving about 200 meters from Israel's house, the appellant who was all along silent, told him that the car should stop so that he could tell what happened which request he relayed to the Police Officer and the car stopped. The appellant asked them to go with him so that he could how where the deceased's wife body was and he said the same was at Dolot at Orbesh Village, the village in which he lived, which was 1.5 kilometers away. The Police agreed and went to the said village. As to what transpired upon arrival at his house, PW2 stated at page 48 that: 3

"We went to his house where he was living with his young wife Ahm ed Shamsudin @ Cornet Mzengo Ahm ed Shamsudin @ Cornel Mzengo Ahm ed Shamsudin @ Cornel Mzengo one Asha Hussein. We found them already sleeping and shamsudin knocked and they opened. He did take us a t the back o f the house and we found peas trees (m iti ya m baazi). Daudi Lori did take out those trees and Shamsudin toid us that to take out sand as he buried her there. He directed the place to get the hoe and spade inside the house. I did take the spade and Daudi did take hoe. When Daud dug ones, he reached the body and we took out the sand by hand as the body was not that far like 15 centim eters. A fter we took the sand, we d id take out the body and she was wearing skin-tight and lasso (khanga) that was tightly tied on her neck (imefungwa shingoni kwa kukaza). The body had no injuries except for the khanga that was tightly tied on the deceased's neck. The body was identified as Asia @ Selina. We sent the body o f the woman and that o f the child to the Katesh Police Station and then to m ortuary a t Tumaini H ospital..." When cross-examined by Mr. Abdallah Kilobwa, the appellant's defence counsel, PW2 said it was the appellant who led them to the

discovery of the dead body which was still fresh and the appellant told him in the presence of about four policemen that, due to jealousy of the deceased wife not being ready to allow him live with the younger wife, he strangled to death the deceased wife with a "khanga" and later strangled the deceased child using bear hands. That the appellant was not beaten up by anyone. Such evidence found support from Inspector Athumani Mwaluvimbo (PW5) who also drew two sketch maps (exhibit PE4 collectively) of crime scene and F. 4082 D/SGT Alexander (PW6) who constituted the police team that went to the scene of crime. That apart, PW6 who investigated the case, recorded various witnesses' statements and also the appellant's cautioned statement from 21:50 to 22:30 after they had arrived at Katesh Police Station with the appellant at 21:00hrs. An identical evidence came from PW3 up to when the child's body was taken out of the pond. His evidence was also that they heard children crying at the deceased wife's room and when together with his father, they cross-checked on what was the matter, and they found children who were crying and the door was locked from outside and were told by the children that their mother had left with their father after a fight between them. That when they entered into the room in which the deceased wife stayed, they 5

found stool and blood stains which prompted them to report the matter to WEO. That they were later informed that a child's dead body was found in the water pond where he went and identified the body to be that of the deceased child. That, the appellant was arrested by his father and taken to the scene of crime and handed to the police. That, when interrogated by police, the appellant claimed that it was a devil which caused him commit the charged offences. He did not witness the deceased wife's body being dug out as he did not go the appellant's village. The cause of deaths for both deceased persons, was explained by Erasto Salutari Mushi (PW4), a doctor at Tumaini Hospital who conducted the autopsy of the deceased bodies, to be failure to breath or strangulation, the finding of which was posted on Post-mortem examination Reports which were admitted without any objection as exhibits PE2 and PE3 for the deceased wife and deceased child respectively. The above evidence appearing insufficient to the prosecution, the appellant was also taken to the Justice of Peace one Claudia Andrew Tamamu (PW1), a Resident Magistrate stationed at Katesh Primary Court who recorded his extra-judicial statement which was admitted in court as exhibit PEI unobjected.

To the appellant, all the accusations and evidence by the prosecution witnesses was untrue. In his affirmed defence, he disassociated himself completely with the death of his deceased wife and deceased child as alleged in the charge and narrated by the witnesses. He then, went on to explain what he knew about such incidences. Explaining on the death of the deceased child, he stated that, on the fateful day, the child was sent by the deceased wife to collect water at the Hideti pond and never returned. That he traced him only to find that he had drowned in that pond. Even his attempt to rescue him, he stated, after seeing his arm palm, failed as the body moved towards the eastern side as a result of which he left the child in the pond for other people to find ways to rescue him. That he wanted to report to her deceased wife but he did not. In his further defence about death of his deceased wife, he flatly denied knowing it as he found her dead body in the police car in which he was carried after his arrest in connection with the death of his deceased child and that there was no any grave at his house. He, however, admitted being arrested on 31/10/2018 and being taken to the police station but disowned the cautioned statement (exhibit PE6) for a reason that the same was extracted through torture as he was beaten and subjected to electric 7

wires shock. He similarly complained on the manner the extra-judicial statement (exhibit PEI) was recorded by PW1 in that he was threatened by police not to change his position and that, at the time of recording, the policeman who took him to the Justice of the Peace was at the door listening and was carrying handcuffs and stick. The learned trial Judge, at the end of the trial, considered the evidence and was convinced that the prosecution had proved the charge on both counts leading to the appellant's convictions and sentence as demonstrated above. The learned Judge acknowledged that there was no eye-witness to the killings and the conviction was grounded upon five pieces of evidence; one, the evidence by PW2, PW3, PW5 and PW6 who testified on how the deceased bodies were recovered; two, the appellant's confession that he killed both deceased persons before the PW2, PW3, PW5; three, the evidence that the appellant led the police officers to his house and showed where he had buried the deceased wife in the presence of an independent witnesses (PW2 and PW3), and, four, confession before police as exhibited in the cautioned statement (exhibit PE5) and the extra judicial statement (exhibit PEI), five, the fact that the doctor (PW4) found the cause of death being respiratory failure due to strangulation. The 8

learned trial Judge dismissed as not true the appellant's contention that he was tortured because PW1 clearly told the trial court that the appellant freely volunteered to give his statement and no one was present at the time of recording exhibit PEI in which the appellant narrated how he killed the deceased wife which bears the same explanation as exhibit PE5. Besides, she found such contention an afterthought for want of objection at the time of admission at exhibit citing the Court's decision in the case of Shihoze Semi and Another vs Republic, (1992) TLR 330 and Emmanuel lohay and Udagene Yatosha vs The Republic, Criminal Appeal No. 278 of 2010 where the court underscored the position that failure to object the cautioned statement at the time of admission as evidence and raising the same during defence is like missing the boat. She also found the prosecution witnesses reliable applying the principle in Goodluck Kyando vs Republic, [2002] TLR 363 and found the circumstantial evidence water-tight and irresistibly point at the appellant as the guilt person. Aware of the position stated by the Court in Christina Damiano vs Republic, Criminal Appeal No. 178 of 2012 (unreported), that the offence of murder stands proved only when malice aforethought is established, the

learned trial Judge examined the import of section 200 of the Penal Code and applied the principles in the circumstances of the case that the appellant took his wife and his son away from his house and strangled his wife to death and then he killed his son (the deceased child) who was crying and threw the body in the pond to hide his evil intention. She also dismissed as unreasonable, the appellant's defence that he failed to save the child's body and did not report his death as it did not occur to the learned Judge that a responsible father could abandon the body of his son and keep quiet. Hence, she held, such defence could not raise reasonable doubt on the prosecution case. She convicted the appellant on both counts and sentenced him to suffer death. The aforesaid conviction and sentence aggrieved the appellant and is now challenging that decision. Initially, the appellant raised four grounds of appeal in the substantive memorandum of appeal. That was subsequently followed by a five-point memorandum of appeal as reflected in the supplementary memorandum of appeal. However, at the hearing of the appeal before the Court, Mr. Vicent Stewart, learned advocate, who represented the appellant, dropped grounds 2, 3 and 4 of the substantive memorandum of appeal remaining with only ground 1 of appeal. In the 10

same breath, he abandoned grounds 2, 3, and 5 of the supplementary memorandum of appeal remaining with grounds 1 and 4 only. In total, he retained only three grounds. For convenience, we shall arrange them thus: "1. That, the learned tria l Judge erred in law and fact by convicting the appellant while the prosecution side failed to prove the case beyond reasonable doubt 2. That, the learned tria l Judge grossly erred both in law and fact by convicting and sentencing the appellant basing on extra-judicial statem ent/confession which was made w ithout follow ing eight steps enum erated therein (sic) as instructed by the Chief Justice (the CJ's Guidelines). 3. That, the learned tria l Judge grossly erred both in law and fact when she failed to consider that the prosecution witnesses found the neck tied but they did not tender the neck tie (khanga) in the tria l as an e xh ib it" Before the Court for the hearing of the appeal were, as earlier stated, the appellant who had the privilege of being represented by Mr. Vicent Stewart, learned counsel, and for the respondent Republic, Mr. Benedict Kivuma Kapela, learned Senior State Attorney who appeared together with Ms. Rose Sebastian Kayumbo, learned State Attorney. The later, resisted the appeal. 11

Submitting in respect of ground two (2) of appeal, Mr. Stewart had it that exhibit PEI was taken by PW1 in violation of the Chief Justice's Directives (Cl's Guidelines) which comprise of six (6) guidelines in that, step number five was not complied with because the appellant was not asked if he was ready to make his statement and the appellant did not expressly state that he was making his statement out of his free will. The learned counsel referred the Court to pages 43 and 44 of the record of appeal to substantiate his assertion. Worse still, Mr. Stewart contended that, PW1 noticed injuries (a scar) on the appellant's left hand but did not bother to ask the appellant the cause thereof which signified that he was forced or beaten by police before being taken to PW1 to make such statement. Reference was also made to the effect that at page 52 of the record of appeal, PW3 one Joshua Israel said the appellant was beaten in the police motor vehicle before confessing and taking them to where he had buried his deceased wife's body. More so, the learned counsel referred the Court to exhibit PEI found at page 7 of the record of appeal to show that PW1 did not ask the appellant if he was willing to record his statement (exhibit PEI). 12

Another blow to Exhibit PEI concerned the propriety of the one who tendered it. Mr. Stewart's argument was that PW1 was not among the intended witnesses by the prosecution whose substance of their evidence was read out to the appellant during committal proceedings. Neither, did the prosecution lodge a notice to add a witness in terms of section 289(1) of the Criminal Procedure Act, Cap 20 of the Laws (the CPA). For this anomaly, the learned counsel urged the Court to disregard exhibit PEI. On the rival side, Mr. Kayumbu differed with Mr. Stewart on the validity of exhibit PEI. Despite appreciating the requirements of section 289(1) of the CPA that it bars a witness who was not listed and whose substance of his evidence (witness statement) was not read out during committal proceedings, he was of the view that exhibit PEI was read out in court after its admission which cured the anomaly. In substance, he admitted that PW1 was not listed as an intended witness and her statement was not read out during committal proceedings. With respect, we hold the view that the second limb of Mr. Stewart's argument disposes ground two (2) of appeal. We shall therefore dispose it first. 13

The contending views of the learned counsel of the parties raise an issue whether PW1 was a competent witness in terms of section 289(1) of the CPA and the validity of exhibit PEI. Fortunately, this is not a novel area. In the court's unreported case of Ramadhani Mashaka vs The Republic, Criminal Appeal No. 311 of 2015, the Court had an opportunity to lucidly deal with the matter. In that case, suo motu, the Court discovered four prosecution witnesses (PW2 PW3, PW7 and PW8) gave evidence without their statements or substance of their evidence having been read out to the appellant at the stage of committal proceedings. The Court held it to be wrong and was an infringement of Section 289 of the CPA. The Court reproduced that section which reads; "289 - (1) No witness whose statem ent or substance o f evidence was not read a t com m ittai proceedings sh aii be caiied by the prosecution at the tria i unless the prosecution has given a reasonable notice in writing to the accused person or his advocate o f the intention to ca ll such witness. 14

(2) The notice sh all state the name and address o f the witness and the substance o f the evidence which he intends to give . " This Court went further to cite its previous decision in an identical situation to the present one in the case of Hamisi Meure v. Republic [1993] TLR 213 in which a justice of the peace gave evidence without her evidence or substance of her statement being read during committal proceedings and no notice to add her was given by the prosecution during trial as is the case herein and it held thus: "The learned Trial Judge erred in law in allow ing evidence o f the Justice o f the Peace to be given a t the tria l when h is statem ent had not been read at the com m ittal proceedings and no notice had been given to the appellant o r h is advocate, and therefore, the extra-judiciai statem ent was wrongly adm itted; (ii) Section 289(2) o f the Crim inal Procedure Act, 1985, makes it m andatory for not only the name and address o f the witness to be supplied, but also the substance o f the evidence which he intends to give;" 15

As a guideline in respect of such violation of section 289(1) of the CPA, the Court concluded thus: "As to the 3rd ground o f appeal, we are o f the view that the statem ent o f M oshi Seleman @ Kaseo (Exh.P.7) was wrongly adm itted in evidence. This is for the reason that PW8 WP 5710D/C Rahel was not listed and her statem ent not read a t the com m ittal proceedings as required under section 289(1) o f the CPA. A s pointed out earlier according to the case o f Ham isi Maure (supra) as stated by section 289 (1) o f the CPA, that a witness whose statem ent or substance o f evidence was not read a t the com m itted proceedings, sh all not be called by the prosecution unless a notice o f w riting to the accused or his advocate to ca ll such a witness is given. Hence, for such noncompiiance with the requirem ents under section 289(1) o f the CPA, we are constrained to expunge PW 8's evidence ." By analogy, we hereby hold that the evidence by PW1 was wrongly admitted in evidence and we expunge the same from the record of appeal and that goes together with exhibit PEI. The learned trial Judge, we therefore hold, as rightly complained by the appellant, wrongly relied on the evidence by PW1 and exhibit PEI to ground the appellant's conviction 16

Ground two of appeal has, therefore, merit and we allow it. Our holding renders the need to consider compliance with the CJ's guidelines in recording exhibit PEI a mere academic exercise to which we refrain to delve into. Linked with the above complaint is a claim by Mr. Stewart that at page 52 of the record of appeal, PW3 one Joshua Israel, said the appellant was beaten before confessing in the police motor vehicle hence his confession was not voluntary. Indeed, PW3 said so but PW2 who was in the same car said the contrary. Besides, the complaint was neither further seriously pursued during cross-examination nor during the appellant's defence. We have examined the evidence by PW2 and other witnesses who formed the police team and we have seen nothing suggesting torture before the appellant volunteered to the police to go and show them the place where he had buried the deceased wife. That proved such allegation to be a futile attempt to show that he was tortured to confess before reliable persons and police. Ground three (3) of appeal invites the Court to determine whether it was necessary for the prosecution to produce "khanga" which was allegedly used to tie deceased wife's neck tightly as exhibit during the trial. 17

The complaint was argued conjointly with the complaint in ground one (1) of appeal that the prosecution side failed to prove the case beyond reasonable doubt. Submitting in support of this complaint, Mr. Stewart took no issue with the fact that the wife and the child died, the cause of death as explained by PW4 and that there was no eye-witness to the incident hence the prosecution relied on circumstantial evidence to prove the appellant's culpability. He raised concern that no independent eye-witness testified on how the deceased wife's body was exhumed. Even PW3, he continued to submit, who witnessed the event, went there with policemen. He admitted that the appellant was present and witnessed the event, but, he argued, that at the appellant's residence they were received by the landlord. In that regard, he stoutly argued, despite presence of such persons, no single independent witness testified during the trial which argument we find misplaced as PW3, a "bajaj" rider, testified. Reacting to Mr. Stewart's submission, Mr. Kayumbu conceded that the "khanga" was not tendered in court as exhibit. He also conceded that PW5, at page 61 of the record of appeal, testified that after exhumation, the deceased wife was found tied with a "khanga" on her neck which was 18

untied and handed over to the relatives. Anchoring his position in the Court's decision in Mashaka Juma @ Ntatula vs Republic, Criminal Appeal No. 140 of 2022 (unreported) cited in the case of Daniel John Mwakipesile vs Republic, Criminal Appeal No. 449 of 2019 (unreported), he firmly argued that failure to tender an exhibit is not fatal. Accordingly, he beseeched the Court to dismiss the appeal for want of merit. As for failure to call independent witness, he submitted that evidence presented by other witnesses was sufficient hence there was no need to parade other witnesses. We hasten to entirely agree with Mr. Kayumbu for, in terms of section 143 of the Evidence Act (the EA), it is not the number of witnesses which is required to prove a fact. Before we embark in the resolution of the complaint, it is obvious that legally speaking, an exhibit is either a document or object produced in court and referred to or identified by a witness in giving evidence. It is part of the evidence produced in court in support of a certain argument. That means, even without it, the argument can still stand provided that it is clear. It is not, therefore, always necessary that there must be an exhibit for, in certain instances, it may not be available. It always depends on the relevance of it in the case. In our case, it appears that the appellant 19

intends to exonerate himself from liability by raising doubts on the allegation that he strangled the deceased wife by using the "khanga" because it was not produced in court as exhibit. We think this line of argument is a misconception. Cause of death of the deceased wife was well established by Erasto Salutari Mushi (PW4), a doctor at Tumaini Hospital who, as earlier stated, conducted the autopsy of the deceased bodies, and made a finding that death of each of them was caused by failure to breath or strangulation, the finding of which was posted on Post mortem Examination Reports which were admitted without any objection as exhibits PE2 and PE3 for the deceased wife and deceased child respectively. To be precise, he is recorded, at pages 55 and 56 of the record of appeal, to have told the trial court that: "...I discovered that the cause o f death for Asia was failure to breath or strangulation. There was suffocation as the m ark on the neck and the blood in the nose and mouth and the eyes show that there was pressure on the blood forcing to go to the heart. I closed the body and exam ined the second body o f Ahm ed Shamsudini. It was a child body and it had clothes with mad showing that it was taken from the mad. I did take out the clothes and saw insects which always stays in the water. 20

H is neck had a m ark showing Haemorrhage (damu im evilia chini ya Ngozi). H is eyes have haemorrhage , the feet and palm were white showing that he stayed in the water for long time... I therefore discovered that the cause o f death was failure to breath after the neck was held (imebanwa) and the body was tossed into water after h is death. The blood haemorrhage around the neck and eyes proves that he was strangled..." Such evidence was not shaken during cross-examination by Mr. Kilobwa, learned advocate who defended the appellant during trial, as the doctor maintained his position that he conducted the autopsy and found the cause of death of both deceased persons to be respiratory failure due to strangulation. As the evidence by PW4 sufficiently established the cause of death, we are of a strong view that failure to tender the "khanga" did not adversely affect the prosecution case. This ground of appeal is, therefore, without merit and we dismiss it. Lastly, we turn to consider ground one (1) of appeal which raises an issue whether the case was proved beyond reasonable doubt against the appellant. Once again, Mr. Stewart's and Mr. Kayumbu parted ways. While the former insisted that, on the basis of the weaknesses revealed in the 21

two grounds of appeal, if sustained by the Court, the charge will remain unproved, the later was of a different view. We have reviewed the evidence on record and, despite the evidence of PW1 and exhibit PI being expunged, we are still convinced that the remaining evidence still pointed at the appellant as the guilty person as was rightly held by the learned trial Judge. The evidence on record by PW2 is clear that, as the police were taking the body of the deceased child to police station and after moving about 200 meters, the appellant told him to ask the police car to stop so that he could show the whereabouts of body of his deceased wife. PW2 further said the appellant told him that, due to jealousy of the deceased wife not being ready to allow him live with the younger wife, he strangled to death the deceased wife with a "khanga" and later strangled the deceased child using bear hands. As regards the prevailing circumstances, PW2 said that the appellant was not beaten up by anyone. In compliance with the request by the appellant, PW2 stopped the police car and the appellant led them to his house where he took them behind it where they found peas trees, he told them to remove the peas trees and sand and they found the deceased wife's body. His (PW2) evidence dovetails with that given by PW5 and PW6. We need not 22

overemphasize that what actually transpired between the appellant and the three policemen is that, the appellant freely provided an information leading to a discovery of a relevant matter (fact) in a case. He orally confessed to committing the murder. A confession may be made orally or in a written form as stipulated under section 3 (1) (a), (b), (c) and (d) of the Evidence Act (the EA). Such evidence is admissible in terms of section 31 of the evidence Act, which provides that: "31. When any fact is deposed to as discovered in consequence o f inform ation received from a person accused o f any offence in the custody o f a poiice officer, so much o f such inform ation , whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, is relevant . " (See - Mboje Mawe & Others v. Republic, Criminal Appeal No. 86 of 2010 [2011] T7CA 136 [29 June, 2011; TanzLII] and Peter Mfalamagoha v. Republic, Criminal Appeal No. 11 of 1979 [1979] TZCA 13 [7 November, 1979; TanzLII].) In view of the above along with other reasons given by the learned trial Judge above and in the absence of evidence by PW1 and exhibit PI, we still find the remaining evidence sufficient enough to ground the convictions. We have no reason, therefore, to fault the learned trial Judge. 23

We are satisfied beyond reasonable doubt that the appellant's convictions in both counts and sentence imposed are sound in law and properly grounded. For the foregoing reasons, save for ground one (1) of appeal which we have allowed, we find the appeal without merit and we dismiss it. DATED at DODOMA this 31st day of March, 2026. S. A. LILA JUSTICE OF APPEAL P. S. FI KIRI NI JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL Judgment delivered virtually this 15th day of April, 2026 in the presence of the appellant in person, Mr. Charles Kagirwa, learned Senior State Attorney for the respondent and Ms. Christina Mwanandenje, Court Cier ........................ . ' ginal. 24