Alex Julius @ Shegaa vs Republic (Criminal Appeal No. 91 of 2024) [2026] TZCA 395 (10 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA ( CORAM: MWANDAMBO. J.A.. MWAMPASHI. 3.A. And MLACHA. J.AJ CRIMINAL APPEAL NO. 91 OF 2024 ALEX JULIUS @ SHEGAA ...................................................... APPELLANT VERSUS THE REPUBLIC ......... .............. ........................... ....... RESPONDENT (Appeal from the decision of the High Court of Tanzania, at Karatu Arusha) (Tiganqa, 3.) dated the 24th day of November, 2023 in Criminal Sessions Case No. 48 of 2022 JUDGMENT OF THE COURT 17th February & 10th April, 2026 MWAMPASHI. J.A.: In the High Court of Tanzania sitting at Karatu Arusha, Alex Julius @ Shegaa, the appellant herein, was charged and convicted for murdering one Kudura d/o Heres Harris (the deceased), contrary to section 196 of the Penal Code, Cap. 16. Having been convicted, he was handed down the mandatory sentence of death by hanging. Aggrieved, he has preferred the instant appeal. According to the particulars of the offence and from eight witnesses and two documentary exhibits, the prosecution sought to establish that, on unknown dates of September, 2020, at NHC Magadini area within the

District of Monduli in Arusha Region, the appellant murdered the deceased. In a nutshell, the factual background of the case giving rise to the instant appeal is to the following effect: Kilimo Mutugutu Mwinyikai (PW2) and the deceased were co-tenants in a two roomed house belonging to Fatuma Mohamed Manda (PW3) at NHC Magadini area, Mto wa Mbu. While PW2 had a carpentry workshop outside the house, the deceased occupied one of the two rooms. It was also common ground that, the deceased and the appellant were lovers and the latter whose residence was nearby, used to visit the deceased on regular basis. The deceased used to work with Paulina Sumayi Bura (PW4) as bar maids at Mama Shola Bar owned by Mary Zuberi Wikesi (PW5). On 18.09.2020, a fetid smell was sensed from the deceased's room. PW2 who had not seen the deceased since 15.09.2020, accompanied by his colleagues, opened the door to the house which was locked from outside by a binding wire and entered the deceased's room where they found a dead body of the deceased lying on the floor. The deceased's body which was in a decaying state was almost naked with dry blood stains on her private parts. PW2 reported the incident to the landlady (PW3) and to the police. The report to the police was received by Peter

Ngollo Mayalla (PW1) who by then, was the OCS of Mto wa Mbu Police Station. He rushed to the scene of the crime with other police officers including Jackob Masalu Bulugu (PW6) who drew a sketch map of the scene of crime and later, during the trial, tendered it in evidence as exhibit PL According to PW1, there was blood not only on the floor on which the deceased's body was lying but also on her private parts. PW1 directed the deceased's body to be collected and sent to Mto wa Mbu Health Centre where an autopsy was performed by an assistant medical officer one Verian Hosea Sanga (PW7). According to her, the deceased's body which had started decomposing had black marks on the face, wounds on the right-hand near the armpit, swollen private parts and the tongue protruding out of her mouth. PW7 concluded that the cause of the death was brain death secondary to strangulation and suffocation. To that effect, a Post Mortem Examination Report, in which PW7's findings had been posted, was tendered in evidence as exhibit P2, On her part, PW4 told the trial court that, on 15.09.2020, she was on duty with the deceased at Mama Shola Bar. They were together the whole day up to 22:00 hours which was the closing time. After the bar had been closed, she saw the deceased leaving with the appellant who was her lover. PW4 testified further that, the appellant would routinely,

go to the bar, wait for the bar to be closed before leaving with the deceased. She went on testifying that, 15.09.2020 at 22:00 hours, was the last time she saw the deceased alive because from that point in time the deceased went missing and did not show up at their place of work. After three days, on 17.09.2020, worried about the unknown whereabouts of the deceased, PW4, PW5 and other girls at the bar gathered and were planning to mount a search for the deceased when the appellant who happened to be around, overhead them. He unsolicitedly approached and told them that the deceased had gone to Minjingu which was her place of origin. Knowing that the information about the whereabouts of the deceased had come from a reliable source, the plan of mounting the search for the deceased was halted only to be shocked when on the next day, the deceased was found dead in her room. PW4's testimony regarding the appellant and the deceased being lovers and that the appellant told and assured them that the deceased had gone to Minjingu and was safe was supported by PW5. Asha Msabaha Bwanga, the deceased's aunt, testified as PW8 telling the trial court that, she knew that the appellant and the deceased were lovers. She also testified that the couple used to approach her for reconciliation whenever they had differences. PW8 testified further that

the last day she saw the deceased alive was in the morning hours of 15.09.2020 when she told her of not feeling well and her plan to go to the hospital. In his sworn defence in chief, the appellant claimed to have known the deceased just as his drunkard neighbor. This had been his stance even during the committal proceedings where he is on record at page 24 of the record of appeal stating that, he had no any relationship with the deceased. However, in cross-examination, he admitted that he and the deceased were lovers and that he used to see her frequently. The appellant denied to have been with the deceased on 15.09.2020. He claimed that on that date he had been at the lake fishing from 07:00 hours to 18:00 hours when he returned home and never went out. The appellant also denied to have picked the deceased from Mama Shola bar and to have told PW4 and PW5 that the deceased had gone to Minjingu. He admitted that he had been quarreling with the deceased and that PW8 had been reconciling them. He said that, the quarrels started when the deceased called him a killer. He denied to have killed the deceased and urged us to allow his appeal. From the evidence of both sides, the trial court was satisfied that, the fact that the deceased's death was unnatural was proved beyond

reasonable doubt. Further, having found that PW3, PW4, PW5 and PW8 were credible witnesses, the trial court found it established that the appellant and the deceased were lovers and also that the appellant was the last person to be seen with the deceased on 15.09.2020 at 22:00 hours when he was seen by PW4 leaving with the deceased from Mama Shola Bar. That being the case, based on the doctrine of the last person to be seen with the deceased, the appellant was thus judged to have been the one who killed the deceased. The appellant's conviction was, by and large, based on circumstantial evidence. Apart from reliance on the doctrine of the last person to be seen with the deceased alive, the trial court considered other evidence. That evidence was to the effect that the appellant and the deceased were lovers and also that the appellant prevented PW4 and PW5 from looking for the deceased by assuring them that the deceased was safe and had gone to Minjingu. The evidence was found to irresistibly point at the appellant as the one who killed the deceased. The case against the appellant was thus found proved beyond reasonable doubt and the appellant was accordingly convicted and sentenced in the manner we have alluded to earlier.

In support of the appeal, two memoranda of appeal were lodged. The memorandum of appeal lodged on 26.06.2024 contained 8 grounds of complaint which were to the effect that; one, the circumstantial evidence did not point to the appellant as the person who killed the deceased; two, the conviction was based on suspicious evidence; three, the appellant was wrongly committed to the High Court; four, the principle of the last person to be seen with the deceased was wrongly applied; five, the case against the appellant was not proved beyond reasonable doubt; six, the evidence on record was not properly evaluated; seven, section 8 of the CPA was contravened regarding the evidence of PW7 and exhibit P2; and eight, that PW1 and PW2 had interest to serve and their testimony contradicted exhibit P2. It has to be pointed out at this very stage that ground seven is misconceived. Section 8 of the CPA deals with inquiries into sudden deaths which was not the case in the murder in question. We thus dismiss the complaint outrightly for being misconceived. The supplementary memorandum of appeal filed on 02.02.2026 contained 5 grounds of appeal, to wit; one, that DNA forensic test on the blood allegedly found on the deceased's private parts was not conducted and no report was tendered in evidence to that effect; two, that exhibits

PI and P2 were irregularly admitted in evidence; three, that the appellant did not plead to the information; four, that there was variance between the information and the evidence and five, that section 256 (A) of the CPA was contravened. When the appeal was called on for hearing before us, whereas, the appellant was represented by Mr. Lengai Nelson Merinyo, learned advocate, the respondent Republic had the services of Ms. Janeth Sekule and Mr. James Pallangyo, both learned Senior State Attorneys. After taking the floor, Mr. Merinyo abandoned ground 3 from the memorandum of appeal as well as grounds 2, 3 and 5 from the supplementary memorandum of appeal. He then combined grounds 1, 2, 5 and 6 from the memorandum of appeal and ground 1 from the supplementary memorandum of appeal and argued them conjointly under the general complaint that the case against the appellant was not proved beyond reasonable doubt. Grounds 4 and 8 from the memorandum of appeal were also argued together with ground 4 from the supplementary memorandum of appeal. Submitting in support of the general complaint that the case against the appellant was not proved to the hilt, Mr. Merinyo focused on the cause of the deceased's death. He contended that the cause of death was not 8

established. He impressed upon us that, the deceased might have died from any illness and hence the death was natural. He was of that position not only because there was evidence from PW8 that on 15.09.2020 the deceased complained that she was not well, but also because the proposition by PW7 and exhibit P2 that the deceased died from strangulation was not supported by any evidence. Mr. Merinyo wondered how, if nothing abnormal was detected in the pharynx and esophagus as testified by PW7, could the cause of the death be strangulation. He also contended that, since there was no evidence proving that the deceased's body had any deformity or active bleeding, the death could not have been caused by strangulation. On the authority of the decision of the Court in the case of Zakaria Jackson Magayo v. Republic [2021] TZCA 207, Mr. Merinyo insisted that, the cause of the death was not established and that the fact that exhibit P2 was admitted in evidence without objection did not mean that its contents were admitted by the appellant. On the complaint regarding the application of the doctrine of the last person to be seen with the deceased, Mr. Merinyo argued that there was no reliable evidence that the appellant was the last person to be seen with the deceased. He contended further that there was even no evidence on the place the appellant and the deceased headed to from Mama Shola

Bar. It was also argued that, failure to establish the cause of death sufficiently rebutted the application of the doctrine of the last person to be seen with the deceased. Regarding the complaint that the information was in variance to the evidence, Mr. Merinyo submitted that, while according to the particulars of the offence, the murder in question was committed at Magadini area, the evidence on record is to the effect that the offence was committed at NHC, Mto wa Mbu. Finally, Mr. Merinyo submitted that the case was poorly investigated if at all, there was any investigation done. He pointed out that the case investigation officer was not called to testify. He further contended that, murder being a capital offence attracting death penalty needed thorough investigation and proof beyond reasonable doubt. Referring us to the decision of the Court in the case of Bahati Makeja v. Republic [2024] TZCA 32, counsel argued that doubts in the prosecution case have to be resolved in favour of the appellant. He thus prayed for the appeal to be allowed. Mr. Pallangyo who addressed us on behalf of the respondent Republic opposed the appeal. He submitted that the case against the appellant was proved beyond reasonable doubt. The learned Senior State 10

Attorney contended further that, it was proved beyond reasonable doubt that the deceased's death was unnatural and also that it was the appellant who committed the murder. Regarding the cause of the death, it was submitted that, as opined by PW7, the deceased was strangulated. He insisted that the fact that the deceased was found with her tongue protruding out of the mouth, blackness on the face and the fact that PW7 was not seriously controverted in cross-examination on the cause of death, proved that the cause of the death was strangulation. As regards the appellant being the one responsible for the death of the deceased, Mr. Pallangyo was steadfast that, circumstantial evidence against the appellant was watertight. Citing our decision in the case of Hugo George Jimson v. Director of Public Prosecutions [2021] TZCA 81, Mr Pallangyo submitted that, the circumstantial evidence irresistibly point to none other than the appellant as the one who killed the deceased. He referred us to PW4's evidence which is to the effect that, on 15.09.2020 at 22:00 hours which was the last time the deceased was seen alive, the appellant was seen leaving with the deceased from Mama Shola Bar. The learned Senior State Attorney further argued that, according to the evidence on record, the appellant stopped PW4 and PW5 from mounting the search for the deceased when he told them that the li

deceased had gone to Minjingu. He contended that, the appellant's lie to PW4 and PW5 on the whereabouts of the deceased was intended to conceal the fact that, by then, the deceased was already dead in her room. To Mr. Pallangyo, these facts and bearing in mind that the appellant and the deceased were lovers, amounted to watertight circumstantial evidence leading to the conclusion that the deceased was murdered by the appellant. On the doctrine of the last person to be seen with the deceased, Mr. Pallangyo submitted that the doctrine was properly applied by the trial court. He pointed out that, after she had been seen leaving with the appellant, the deceased was not seen alive by anyone again. It was argued by Mr. Pallangyo that under these circumstances, the appellant had the duty to explain where and when he parted with the deceased. To cement his argument, the cases of Mattayo Mwalimu & Another v. Republic [2009] TZCA 126; Trazias Evarista @ Deusdedit Aron v. Republic [2021] TZCA 697 and Rajab Kajabala v. Republic [2025] TZCA 420 were cited. The complaint that the case was not investigated was contested by Mr. Pallangyo. He argued that, the fact that the case investigating officer was not called to testify does not necessarily mean that the case was not 12

investigated. He maintained that the case was investigated and the gathered evidence was presented by the prosecution witnesses who were called to testify. Mr. Paliangyo also disagreed with Mr. Merinyo that DNA test on the deceased's blood was necessary. On the appellant's complaint that there was a variance between the information and the evidence, it was Mr. Pallangyo's contention that, there was no such variance. He referred us to pages 36,39,46 and 49 of the record of appeal where PW1, PW2, PW4 and PW5 are on record testifying that Magadini is also referred to as NHC which is within Mto wa Mbu. Mr. Paliangyo ended his submissions by insisting that, based on the doctrine of the last person to be seen with the deceased and to other pieces of circumstantial evidence, it was proved beyond reasonable doubt that it was the appellant who murdered the deceased. He thus prayed for the appeal to be dismissed for lack of merit. In his brief rejoinder, Mr. Merinyo reiterated his position that the doctrine of the last person to be seen with the deceased was not properly applied and also that the cause of death was not established to the required standard. He prayed for the appeal to be allowed by quashing the conviction, setting aside the sentence meted against the appellant and and setting him free. 13

Having heard the submissions made for and against the appeal, considered the grounds of appeal and based on the evidence on record, there are three issues calling for our determination; one, the cause of death or in other words whether or not the death was unnatural; two, the application of the doctrine of the last person to be seen with the deceased and three, the cogency and reliability of circumstantial evidence. Before we delve into the above singled out issues, we are obliged to first consider, albeit in brief, other complaints raised by the appellant regarding the alleged variance between the information and evidence, poor investigation of the case and DNA test. Beginning with the issue of variance, we agree with Mr. Pallangyo that, there is no material variance between the evidence and the information regarding the name of the scene of crime. As stated in the particulars of the offence, the murder was committed at NHC (which stands for National Housing Corporation) Magadini area. To that effect, there is evidence of PW1 who testified that the offence was committed at Shirika la Nyumba (Housing Coroporation) Magadini village. Even PW2, the deceased's co-tenant told the trial court, at page 40 of the record of appeal, that, the appellant was his neighbour at National Housing area. Likewise, PW3, the deceased's landlady, 14

testified, as reflected at page 43 of the record of appeal, that her house is at Mto wa Mbu National Housing. It is thus, crystal clear from the evidence on record, that all witnesses referred the scene of crime to be at NHC which is within Magadini area at Mto wa Mbu. The complaint is therefore unfounded and it is accordingly dismissed. We also find the complaints on the case being poorly investigated and failure to conduct DNA test, insignificant. As argued by Mr. Pallangyo, and rightly so to us, under the circumstances of this case, the fact that the case investigating officer was not called to testify does not necessarily mean that the case was not investigated or poorly investigated. Likewise, failure to conduct DNA test and present its report has not made the prosecution evidence deficient. Reverting back to the three issues singled out earlier for our determination and beginning with the complaint on the cause of death, we need not cite any authority on the requirement of establishing the cause of death in murder cases. It is settled that on a charge of murder, the prosecution is duty bound to prove beyond reasonable doubt not only the death and the person responsible for it, but also its cause. It is upon the prosecution to prove that the death was unnatural. In the instant appeal, the argument by Mr. Merinyo for the appellant is that it was not 15

established that the deceased's death was from strangulation as opined by PW7. He contended that the deceased might have died naturally from illness because PW8 testified that, in the morning hours of 15.09.2020, the deceased told her that she was not feeling well. It is our considered view that, while it is on record from PW8's testimony that in the morning hours of 15.09.2020 the deceased told her that she was not feeling well and was planning to go to the hospital, there is evidence from PW4 and PW5 that on that same date, the deceased spent the whole day on duty at Mama Shola Bar till at 22:00 hours when she was picked by the appellant. The fact that the deceased was able to perform her duties at Mama Shola Bar and did not complain that she was not well indicates that the deceased was not that much ill or that she might have seen the doctor and got treated. The possibility of the deceased having died naturally from illness as suggested by Mr. Merinyo, is negligible and does not defeat PW7's medical findings that the deceased's death was caused by strangulation. After observing that the tongue of the deceased had protruded from the mouth and also the face had turned black signifying that facial tissues lacked oxygen, PW7 concluded that the deceased died from strangulation. As the trial court did, we too, have no reason to doubt the opinion given by PW7. 16

According to the book titled "Knight's Forensic Pathology" 3r d Ed. 2004, by Pekka Saukko & Bernard Knight (www.taylorfrancis.com), signs of strangulation death include facial cyanosis redness or blackness on the face, eyes or skin and tongue swelling or protrusion. We therefore find that the death of the deceased resulted from strangulation as opined by PW7. That being the case, the prosecution discharged its legal burden of proof by proving beyond reasonable doubt that the death of the deceased was not natural. Next is the application of the doctrine of the last person to be seen with the deceased. As the Court stated in the case of Mathayo Mwalimu & Another (supra), if an accused person is alleged to have been the last person to be seen with the deceased, in the absence of plausible evidence to explain away the circumstances leading to the death, he or she will be presumed to be the killer. The doctrine was reiterated by the Court in the case of Armand Guehi v. Republic [2013] TZCA 2188 by stating that: . . the strength or otherwise o f the doctrine (ofthe lastperson to be seen with the deceased) depends soie/y on the explanation which may be given by the person to displace the presumption that he may be the culprit behind the death o f such person" 17

In the instant case, the testimony of PW2, PW4, PW5 and PW8 to the effect that, 15.09.2020 was the last day the deceased was seen alive was not contested. Further, according to PW4, it was at 22:00 hours after the closure of the bar, when she last saw the deceased alive while in the company of the appellant who had gone to the bar to pick her. Though the appellant denied having been with the deceased in that evening let alone picking her as testified by PW4, the trial court which was in a better position to assess the credibility of PW4, found her credible. On our part, having assessed PW4's testimony and the whole evidence on record, we agree with the trial court that PW4's credibility and reliability cannot be questioned. Her testimony was coherent, consistent and plausible. Since the appellant was the last person to be seen with the deceased at 22:00 hours on 15.09.2020 and since the deceased was not seen again until on 18.09.2020 when her dead body was found in her room, the appellant was expected to explain how the two parted ways. Given the fact that the appellant gave no explanation of what transpired after he had picked the deceased from Mama Shola Bar which was the last time the deceased was seen alive, he was thus, properly presumed to be the one who killed the deceased. Under these circumstances, the doctrine of the last person to be seen with the deceased was properly invoked. 18

Finally on the issue regarding circumstantial evidence. The law on circumstantial evidence is settled. A conviction can solely be grounded on circumstantial evidence provided such evidence is watertight, unerringly and it conclusively point to no one else but the accused person as the one who committed the offence charged. In the case of Mohamed Seleman Kidari @ Ndwata v. Republic [2024] TZCA 137, the Court stated that: "Facts relevant in a conviction based on circumstantial evidence must not only be exceedingly com pellingbut also, they must be adding up with mathematicalprecision permitting not a single chance or error, leading to only one conceivable theorem; the guiit o f the accused person". Furthermore, for circumstantial evidence to be relied upon, four factors must be satisfied as it was stated by the Court in the case of Bahati Makeja v. Republic [2011] TZCA 31, thus:

1. The circumstances from which an inference o f guilt is sought to be drawn, must be cogently and firmly established beyond reasonable doubt
2. Those circumstances should be o f a definite or conclusive tendency unerringly pointing towards the guilt o f the accused.
3. The circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within 19

ail human probability the crime was committed by the accused and no one else and 4. The circumstantial evidence in order to sustain a conviction must be complete and incapable o f explanation o fany other hypothesis than that o f the guilt o f the accused and should be inconsistent with his innocence. See also Hamida Mussa v. Republic [1993] T.LR. 123, Mathias Bundala v. Republic [2007] T.LR. 53, Zakaria Jackson Magayo v. Republic [2021] TZCA 207 and Safari Anthony @ Mtelemko & Another v. Republic [2023] TZCA 17768. In the instant case, the circumstantial evidence upon which the trial court relied in convicting the appellant was built from the following facts; One, as alluded to above, the appellant was the last person to be seen with the deceased. Having been seen by PW4 leaving with the deceased from Mama Shola Bar at 22:00 hours on 15.09.2020 which was the last time the deceased was seen alive, the appellant failed to give any explanation on how he parted with the deceased. Two, and the most aggravating piece of circumstantial evidence linking the appellant to the death of the deceased, is the lie he told to PW4 and PW5 that the deceased had gone to Minjingu. Having overheard PW4, PW5 and other bar attendants discussing about the disappearance of the deceased and their plan to mount a search for her, the appellant approached and told 20

them that the deceased had gone to Minjingu which was her place of origin. As testified by PW4 and PW5 because it was known that the appellant and the deceased were lovers and thus believing that the deceased was safe, they were no longer worried about the deceased's whereabouts until on 18.09.2020 when the deceased's dead body was found in her room. By telling the lie to PW4 and PW5 that the deceased had gone to Minjingu the appellant, undoubtedly, aimed at deterring PW4 and PW5 from looking for the deceased hopping that the deceased's body would not be recovered quickly. Based on the foregoing, we are thus satisfied that the pointed out circumstances irresistibly point to the guilt of the appellant. The circumstances are not only incompatible with the appellant's innocence but they are also incapable of any other explanation than the guilt of the appellant. As we have alluded to earlier, the appellant being the last person to be seen with the deceased and his failure to give explanation on what transpired and how he parted company with the deceased and further his lie to PW4 and PW5 that the deceased had gone to Minjingu, leave no reasonable doubt that it was him who killed the deceased. All said and done, we are satisfied that the case against the appellant was proved beyond reasonable doubt and he was thus properly 21

convicted and sentenced. Consequently, the appeal fails in its entirety and it is accordingly dismissed. DATED at DODOMA this 9th 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 10th day of April, 2026 in the presence of appellant in person, Mr. Philbert Msuya, learned State Attorney for the respondent and Ms. Christina Mwanandenje, Court Clerk; Court is hereby certified as a true copy of the original. 22