Nathanaeli Matei Nditi @ Babuu & Another vs Republic (Criminal Appeal No. 306 of 2023) [2026] TZCA 401 (10 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA ( CORAM: MWANPAMBO. J.A,. MWAMPASHI. J,A. And MLACHA. 3 JU CRIMINAL APPEAL NO. 306 OF 2023 (Appeal from the judgment of the High Court of Tanzania Arusha JUDGMENT OF THE COURT 9th Feb & 10th April, 2026 MWANPAMBO. J.A.: The appellants were aggrieved by the judgment of the High Court sitting at Arusha made on 2 May 2023 in Criminal Sessions Case No. 34 of 2022 which convicted them of murder and passed the mandatory death sentence. They have preferred the instant appeal to the Court in their quest to protest their innocence. The information on which the appellants stood charged alleged that, Nathanael Matei Nditi @ Babuu (first appellant) and Martin Tiophil (cpKalimanzila @Rasta (second appellant), on 11 October 2020 at a place NATHANAELI MATEI NDITI ©BABUU ........ MARTIN TIOPHIL @KALIMANZILA @RASTA 1 st APPELLANT 2 nd APPELLANT RESPONDENT Sub-registry at Babati) (3. R. Kahyoza. J.) dated the 8th March & 2n d May, 2023 in Criminal Sessions Case No. 34 of 2023 and Committal Case f PD No. 18 of 2020 1

called Kiru Ndogo village within Babati District, Manyara Region, did murder one Haji Hussein (the deceased). They pleaded not guilty to the information prompting the prosecution to lead evidence to prove the case which they did through 11 witnesses and several exhibits; physical and documentary. The facts upon which the appellants were arraigned and charged resulting in the impugned conviction and sentence have been fairly set suit in the trial court's judgment. Material to the determination of the appeal, they run as follows: On 11 October 2020, noon hours, two people approached one Abdul Hussein (PW2) who owned a motorcycle popularly known as Boda boda used for transport business for a ride from Sigino Posta where he used to park to Kiru Ndogo. After sometime of bargaining and agreement on the fare, PW2 asked his friend Haji Hussein who was operating a milling machine nearby owned by Paulo Hussein (PW3) to ride the customers to the agreed destination as he was not feeling well. Haji Hussein obliged and rode the customers to their destination but he never returned or seen alive after that journey. A search for his whereabouts as well as the motorcycle ended in vain even after reporting the disappearance to the police. As the deceased was still at large, police investigation commenced which led to the arrest of the appellants at Timberland Bar Babati District 2

and taken to Galapo Police Station. Afterwards, on the instructions of SSP Richard Dawson Mwaisemba (PW9), Assistant Inspector Aloys (PW11) conveyed them to Babati Police Station the same day. According to PW9, upon interviewing the suspects, they allegedly confessed having killed the deceased and abandoned his body in a forest at Kiru Hill and robbed the deceased the motorcycle which they pawned to someone Said Dinya (PW6) at Bumbuta village. With that confession, the suspects led PW11 to Bumbuta Village to PW6 for retrieving the motorcycle. It turned out the motorcycle could not be found at his house. Instead, led the team to his mother's house; Zuwena Ramadhan (PW7) where he had kept the motorcycle. PW11 had the motorcycle seized and taken to Babati Police Station the same day. The motorcycle had been sold to PW2 by Miraji Swalehe Kim (PW5) but the transfer formalities to the purchaser had not yet been completed. PW2 identified the motorcycle at Babati Police Station on 18 October 2020 as the same that had been hired by the appellants on 11 October 2020 to ride them to Kiru Kibaoni. The following day, the suspects led PW9 and other police officers in the company of Hussein Rashid Laila (PW4); a local village Executive Officer to a place where the deceased's body had been abandoned and identified to be that of Haji Hussein by PW3 who was his relative forming 3

part of the search team. The deceased's body appeared to have been in a decomposed state with hands been tied from behind with marks in the neck. Afterwards, the deceased's body was taken to Murara hospital where, Doctor Paschal Frank Mushi (PW10) examined it and concluded that the cause of death was due to suffocation. PW10 had his findings posted in a Post Mortem Report he tendered at the trial and admitted as exhibit P5. In view of the oral confession to PW9, the appellants were taken to Rhobinson Winfrid (PW8). This witness had been the Ward Executive Officer for Babati Ward at the material time acting as justice of the peace who recorded the appellants' extra judicial statements the after confessing to have killed the deceased. The second appellant's statement was admitted in evidence as exhibit P4 and that of the first appellant as exhibit P3. Whereas the first appellant pleaded not guilty to the information for murder of the deceased, the second appellant seized the moment to explain what transpired confessing to have participated in killing the deceased under the first appellant's threat. That notwithstanding, the trial court entered a plea of not guilty for both of them. The appellants had common evidence in defence denying everything in connection with the deceased's killing regardless of the second appellant's explanation in 4

answer to the information at the start of the hearing. They also denied having made any confessions before PW8. Each claimed that he was tortured by police before he was sent to PW8 where he was allegedly forced to sign a document whose contents were not disclosed to him. The trial judge found it undisputed that the deceased met a violent death in the hands of killers who did so with malice aforethought. The dispute was whether it was the appellants who caused the deceased's death considering that the prosecution case was largely built on circumstantial rather than direct evidence proving that the deceased died in their hands. In the premises, the court determined the case on the basis of circumstantial evidence guided by the Court's various decisions, amongst others, Alkadi Willium @ Supa v. Republic, Criminal Appeal No. 188 of 2005 (unreported) and Ndalahwa Shilanga & Another v. Republic [2011] TZCA 159 discussing factors to be considered by trial courts before convicting an accused person on circumstantial evidence. These are; one, the circumstances from which the inference of guilt is sought to be drawn must be cogently and firmly established; two, such circumstances should unerringly point towards the guilt of the accused person; and, three, the circumstances should cumulatively form a complete and unbroken chain such that there is no

escape from the conclusion that within all human probability, the crime was committed by no other than the accused person. To arrive at the conclusions it made, the court looked for several pieces of evidence found to be linking the appellant with the deceased's death to wit; PW2's evidence showing that the appellants were the last persons to be seen with the deceased alive; discovery of the motorcycle from PW7 which the appellants had pawned to PW6 facilitated by his brother in law going by the name of Ulongo; discovery of the deceased's body in a forest where the appellants led PW9 and his team on 15 October 2020; and the confessional statements through exhibit P3 and P4 before PW8 as well as the second appellant's confession made in his plea to the information. The trial court considered each of the pieces of evidence mentioned above and was satisfied that they formed an unbroken chain unerringly pointing to no other than the appellants as the persons who killed the deceased who they hired to take them to Kiru Kibaoni on the material date. Specifically, the trial court found proved through PW2's evidence that he identified the appellants as the persons who had approached him on the material date for a ride from Sigino Posta after negotiating with them on the fare before asking the deceased to take them to the intended destination. The learned judge found it established that the appellants 6

were the last persons to be seen with the deceased alive and thus responsible for his death in the absence of any explanation how they parted company with him. Similarly, the court found it sufficiently established through PW11 supported by exhibits P3 and P4 that the appellants robbed the motorcycle from the deceased and pawned it to PW6 before they led the search team under PW ll's superintendence to Bumbuta village and eventually its discovery and retrieval from PW7. Despite the appellant's denials, the court found the evidence by the prosecution credible enough to link them with the sale of the motorcycle robbed from the deceased to PW6. Another piece of evidence came from extra judicial statements (exhibits P3 and P4) before PW8 in which the appellants are recorded to have confessed that they robbed from the deceased the motorcycle before killing him and abandoning him in the forest. Finally, PW9's evidence showing that, on 15 October 2020 the appellants led him and his team to Kiru forest where they abandoned the deceased's body after killing him. In their quest to overturn the trial court's decision, the appellants have preferred a joint memorandum of appeal comprising five grounds of appeal. At the hearing of the appeal, M r. Yoshua Mambo and Dr. Ronlick Mchami, learned advocates represented the appellants, respectively. Ms. Saada Mohamed, learned Senior State Attorney who teamed up with Mr. 7

Raphael Rwezahula, learned State Attorney represented the respondent Republic, resisting the appeal. Before addressing the Court on the grounds of appeal, Dr. Mchami prayed to add two supplementary grounds of appeal but, in the end, he abandoned the second one. With the above, the appellants fault the trial court's decision on the following abridged grounds:

1. Reliance on inconsistent and contradictory evidence;
2. Grounding conviction on weak evidence which did not prove the case beyond reasonable doubt;
3. Improper admission o f exhibits.
4. Non-compliance with section 192 (3) o f the Criminal Procedure Act ("the CPA") by failure to read the memorandum o f undisputed facts at the preliminary hearing;
5. Failure to consider defence evidence; and
6. Reliance on exhibits P3 and P4 irregularly recorded by PW8. Mr. Mambo began his address with the 4th ground ahead of the rest which he proposed to address us conjointly. Addressing the Court on the 4th ground, Mr. Mambo pointed out that, whereas section 192 (3) of the CPA in force at the time of the trial required the court to read out to the appellants the memorandum of undisputed facts during the preliminary 8

hearing, the trial court omitted to do so. According to him that was fatal and vitiated the proceedings and, ultimately the conviction. Whilst conceding the omission, Mr. Rwezahula who addressed the Court for the respondent Republic was emphatic that, the omission to read the memorandum was not fatal to the entire proceedings but to the extent it related to the preliminary hearing and not the trial on the authority of the Court's decision in Grospery Ntagalinda @ Koro v. Republic [2016] TZCA 661. With respect, we agree with Mr. Rwezahula. As we said in Grospery Ntagalinda and several other cases including, Director of Public Prosecutions v. Jaba John [2022] TZCA, preliminary hearing proceedings are meant to be preparatory intended to identify matters not in dispute on which the prosecution is not required to give evidence and, the disputed facts to expedite the trial. An irregular preliminary hearing as it were in this appeal neither prejudiced the appellants nor did it have any bearing on the trial and the resultant convictions and sentences. This ground is in consequence dismissed for lack of merit. The remaining grounds boil down to the general complaint that the case against the appellants was not proved beyond reasonable doubt. M r. Mambo prefaced his submissions with the statement that in so far as the case for the prosecution was wholly grounded on circumstantial evidence, it did not meet the threshold proving unbroken chain of 9

circumstances warranting conviction. Elaborating, counsel argued that, the evidence upon which the trial court found the appellants guilty and convicted them was too weak to sustain conviction. The learned advocate contended that, there was neither evidence proving that the appellants were the last persons to be seen with the deceased nor that they robbed a motorcycle the deceased allegedly pawned to PW6 and retrieved from PW7. He criticised the trial court for making an erroneous finding based on the principle that the last person to be seen with the deceased alive presumed to be the killer. Similarly, it was contended that, in the absence of cogent evidence linking the appellants with the robbing of exhibit PI and sale to PW6 who was an accomplice, it was wrong for the trial court to have relied on the doctrine of recent possession of a stolen property from the deceased and thus they were the killers. Mr. Mambo further argued that, the pieces of evidence the trial court relied upon in finding the appellants guilty were not corroborated by other evidence to be acted upon in finding the appellants guilty. He criticised the validity of the extra judicial statements recorded before PW8. According to him, the trial court did not take into account the appellants' evidence that the police threatened them before being taken to PW8 and thus they were not free agents when the statements were extracted from them. 10

Mr. Mambo contended further that, in any case, PW8 did not furnish any evidence that he was attached to any primary court to be qualified to record extra judicial statements from the appellants. Concluding on this, counsel argued that, PW8 recorded the extra judicial statements in contravention of the law and thus wrongly admitted and relied upon in convicting the appellants notwithstanding that the extra judicial statements were admitted without any objection. On the other hand, counsel criticized the trial court for treating the second appellant's explanation in answer to the information at the beginning of the trial as constituting confession to the crime. He contended that, since the second appellant retracted it alleging that he was hoodwinked by the police to confess in return for an acquittal, the trial court wrongly acted on it treating it as confession. Finally, Mr. Mambo faulted the trial court for acting on the evidence by PW10 and PW11 who were not listed during the preliminary hearing without affording the appellants opportunity to be heard in that regard. It was thus argued that, in consequence, the Postmortem Report (exhibit P5) tendered by PW10 was irregularly admitted and acted upon by the court and thus, it ought to be discarded along with the evidence by PW10 and PW11. With the foregoing, counsel implored the Court to find merit in the appeal and allow it resulting in quashing the trial court's finding of 11

guilt and substituting it with acquittal and ultimately setting aside sentences meted on the appellants. Apparently, Dr. Mchami fully subscribed to the submissions made by his colleague which paved away for a reply from the respondent's counsel through Mr. Rwezahula. The learned State Attorney was unyielding to the criticism against the trial court's decision which he wholly supported for being supported by evidence which proved the case against the appellants to the required standard. Mr. Rwezahula was steadfast that, evidence was sufficient to convict the appellants as charged. To begin with, he argued that, regardless of the fact that the case for the prosecution was largely circumstantial, such evidence was sufficient to ground conviction. Counsel argued that, contrary to the arguments by the appellants' advocate, on the evidence, the trial court rightly found that the appellants were the last persons to be seen with the deceased alive and thus responsible for his violent death. On this, he drew our attention to PW2's evidence at pages 16-23 of the record of appeal on what transpired on 11 October 2020 before the deceased gave the appellants a ride in the motorcycle to the agreed destination but never returned and seen again alive. He placed reliance on the Court's decision in Mathayo Mwalimu & Another v. Republic [2009] T2CA 53 for the proposition that, the last person to be 12

seen with the deceased alive is deemed to be the killer in the absence of any explanation to the contrary. The above aside, counsel argued that the finding of guilt was supported by the appellants' extrajudicial statements through exhibits P3 and P4 which were admitted without any objection. He downplayed the argument that the said extrajudicial statements should not have been acted upon in view of the subsequent retraction by the appellants in their defence on account of torture as an afterthought on the authority of the Court's decision in Nyerere Nyague v. Republic [2012] TZCA 103. That decision was cited for the proposition that, objection to the admission of a confessional statement must be taken when the same is sought to be admitted in evidence, else, a subsequent denial of the confession becomes an afterthought. In response to the argument faulting reliance on evidence leading to the discovery of exhibit from PW6 and PW7, counsel argued that there was sufficient evidence that prior to proceeding to Bumbuta Village, the appelants had confessed to Killing the deceased and went away with the motorcycle which they pawned to PW6 for TZS 470,000.00 loan. Besides, it was argued that, through the same oral confession, the appellants led PW9 and his team to Kiru hill forest where the deceased's body was discovered and retrieved. As to reliance on PW6's evidence who was 13

initially an accomplice, Mr. Rwezahula argued that, the trial court acted on that evidence with the requisite caution along with other evidence which pointed to the appellant's guilt. Next, Mr. Rwezaula addressed us on the reliance on the testimonies of PW10 and PW11 allegedly not listed during the preliminary hearing. Whilst conceding that the names of the two witnesses were not listed during the preliminary hearing, counsel contended that, that was inconsequential in so far as they were listed at the committal court and the substance of their evidence was read before it. Before winding up his submissions, Mr. Rwezahula addressed us on an issue raised by the Court on PW8's qualification in the light of the Chief Justice's Guide to justices of the peace. Counsel quickly admitted that there was no evidence that PW8 was assigned to any primary court. However, he contended that, the fact that there was proof that PW8 was attached to any primary court was not fatal in the absence of any complaint that the appellants were prejudiced thereby. With the foregoing, counsel invited the Court to dismiss the appeal for lack of merit. Mr. Mambo reiterated his earlier submissions and joined issues with the respondent's counsel on each of the arguments in reply. Ahead of our discussion on the 1s t, 2n d , 3rd , 5th and 6thgrounds listed earlier in this judgment, we wish to make it clear at this stage that, the 14

appellants' learned counsel made no argument in support of the 1s t and 5th grounds. Hie 1s t ground faults the trial court for grounding conviction on inconsistent and contradictory evidence, on the other hand, the complaint in the 5th ground is against the trial court's alleged failure to consider defence evidence. There being no arguments on the two complaints, we take them as abandoned. Accordingly, we will not consider them in our judgment. We shall begin our discussion with the complaint on the reliance on exhibits P3 and P4 in convicting the appellants. Two issues arise for our determination in this complaint. The first relates to the appellant's complaint retracting the confessional statements. Mr. Rwezahula argued that the appellants who were duly represented by counsel did not object to the admissibility of the confessional statements. They did so in their defence alleging that they were tortured. However, we think that they missed the boat and so their complaint remained, as it were, an afterthought consistent with the Court's decision in Nyerere Nyague (supra). Since the appellants did not object to the admission of the confessional statements at the appropriate stage, it was not open for them to do so at a later stage. Doing so deprived both the prosecution and the court opportunity to consider the substance of any such admission at the appropriate stage. The complaint is devoid of merit and we dismiss it. 15

The 2n d issue arises from reliance on exhibit P3 and P4 on account of PW8's competence to record extrajudicial statement. According to his evidence, PW8 was a Ward Executive Officer for Babati when the offence was committed. All things being equal, he had, in terms of section 57 of the Magistrate's Courts Act ("the MCA") power to record extra judicial statements from criminal suspects. Section 57 of the MCA stipulates: "57. In addition to the powers conferred by this Act on a justice o f peace, a justice o f the peace assigned to a district court house- (a) may hear, take and record the confession o f persons in the custody o f a poiice officer in the same manner as a magistrate may hear, take and record such confession; and (b) shalt have and exercise the powers, functions and duties conferred on a justice o f the peace assigned to a district court house by any other written iaw. ” It is glaring from the foregoing that the power vested in the justice of the peace under section 57 (b) of the MCA is not open ended. He must be assigned to a district court house by any other written law. At the moment, the assignment must have been done in accordance with part one of the Chief Justice's guide to justices of the peace. A similar issue 16

arose in Angelius Kaspari Chaula v. Republic [2025] TZCA 1075 whereby, after revisiting the Chief Justice's guide and the provisions of sections 57 of the Magistrate's Court Act (the MCA), the Court found the extrajudicial statements from accused persons by Executive Officers not attached to any primary court invalid and expunged them from the record. It stated the following; "Asper section 52 o f the same Act, for thejustices o f peace appointed under section 51 to be in offices as such, they have to be assigned, by the appropriate judicial authority, to a primary or district court house in the district for which they are appointed. The general powers o f justices o f peace are provided under section 54, 55 and 56 which do not include recording extra judicial statements. Indeed, taking extra judicial statement are additional powers which are provided under section 57 o f the same Act... the powers to record extra judicial statement is specifically vested in justices o f peace assigned to a district court-house. The question which follows is whether PW4 was a justice o f peace assigned to the District Court House. The answer must come from the relevant authority vested with the power to make the assignment which is none but the offices o f the Chief Justice. For the purpose o f exercise o f such power, the ChiefJustice issued an 17

instrument entitled "A Guide for Justices o f Peace/' Part one thereof which deals with justices o fpeace assigned to the District Courts, defines justices assigned to District Courts in the following words: "(i) AH Primary Court Magistrates are justices assigned to the District Court-houses o f the District wherein their Primary Court is established. (ii) Executive officers o f District Councils (who are ex officio justices) if assigned to a District Court-house by a District Magistrate. A justice o f peace cannot take any action in a District Court house unless he has been assigned thereto by a District Magistrate." It will be clear from the foregoing that Mr. Rwezahula's argument that the irregularity in relation to PW8's lack of evidence that he was attached to any court house did not vitiate the extra judicial statements is, with respect, misconceived. Consequently, as there was no proof whatsoever that PW8 before whom exhibits P3 and P4 were allegedly recorded was assigned to any district court house, he was not competent to do so and thus the purported confessional statements he recorded from the appellants were invalid with no evidentiary value. As the issue on the irregularity of exhibits P3 and P4 was not raised as a ground of complaint, 18

we invoke the Courts' power under section 6 (2) of the Appellate Jurisdiction Act (the A3A) and expunge them from the record. Next for our consideration is the complaint involving reliance on the second appellant's confession allegedly made in reply to the information at the start of the trial. The issue here is whether the second appellant's explanation at the time of taking his plea amounted to a confession. It is common cause that, the second appellant appears to have admitted to the information but gave a long explanation implicating the first appellant as the person who forced him to do so. However, the trial court entered a plea of not guilty and proceeded with the trial. In his defence, the second appellant distanced himself from the accusations linking him with the decease's death. Indeed, he denied knowing the first appellant at any time before his arrest. In answer to questions put to him in cross-examination, he stated: "...I did not teli this court on 2.3.2022 that Nathaei (the first appellant) and we know the deceased. The truth is that I did not know the offence. I was threatened by police. It was police officer Richard who threatened me [and] told me to tell the court what I said so that I may be discharged..." (at page 74 o f the record).

It is settled law that, a confession made voluntarily before a police officer or in the immediate presence of a magistrate or justice of peace can be proved against an accused person. The position in instant appeal is that the impugned confession was made neither before a police officer nor in the immediate presence of a magistrate or a justice of the peace. It was made in reply to the information which the trial court treated as an equivocal plea and entered a plea of not guilty. Logically, unless the second appellant repeated the same statement, he made at the plea stage in his defence, anything said in his plea was irrelevant to the second appellant's conviction. It was not a confession to the offence charged. That is even more logical considering that the second appellant stated in his defence that, he was not only threatened but also hoodwinked by the police to say what he said for him to be acquitted from the offence. Consequently, we respectfully agree with Mr. Mambo that the court strayed into error in treating the second appellant's statement as confession and taking them into account in convicting him. We shall now turn our attention to the complaint in relation to the evidence of PW10 and PW11 allegedly not listed during the preliminary hearing. In terms of section 289 (1) of the CPA before it was redesignated as section 308 (1), no witness whose substance of his evidence was not read at committal proceedings shall be called to testify during the trial 20

except where the prosecution gives a written notice to the accused or his advocate in that behalf. We are in agreement with Mr. Rwezahula that, the bar from calling witnesses under section 308 (1) of the CPA is directed at witnesses whose substance of their evidence were not read at the committal stage and not whose names were not listed at such proceedings or the preliminary hearing as contended by Mr. Mambo. The position on the ground is that, whereas PW10 was not listed at the committal, the substance of the postmortem report was read as evident at pages 139 and 140 of the record of appeal. Ttiat included the substance of the statement of A/Inspector Aloys Malima who testified as Inspector Aloys (PW11) during the trial. It is glaring in item 16 in the list of intended witnesses at page 140 of the record, PW ll's name and his rank before he was promoted to Inspector Aloys as explained in his testimony at page 61 of the record. In the upshot, as the committal court complied with the provisions of section 263 (2) of the CPA, the failure to list the names of PW10 and PW11 at the preliminary hearing was not fatal to their reception of their testimonies. This complaint is devoid of merit and we dismiss it. That takes us to the determination of the main issue in the appeal, that is; whether the case against the appellants was proved to the required standard. 21

It is pertinent that the remaining evidence centers on two aspects; the last person to be seen with the deceased alive and oral confession leading to discovery of the motorcycle and the deceased's body. Apparently, both are part of the law of evidence. The former is derived from relevance of facts falling under section 8 of the Evidence Act while the latter is derived from section 31 of the same Act. Luckily, as evident from thetrial court's judgment, there is no dearth of authority explaining both principles. In Lukas s/o Njowoka v. Republic, Criminal Appeal No. 220 of 2008 (unreported) for instance, the Court referred to its previous decision in Richard Matenguta v. Republic, Criminal Appeal No. 73 of 1991 (unreported) in which it stated: "That fact that the appellants were the last known persons to have been with the deceased casts very grave suspicions on them, but it is in itself not conclusive proof that they killed the deceased . . . ' Other cogent corroborating evidence is necessary, for a suspicion, however ingenious can never be a substitute for proof beyond reasonable doubt." The principle was reiterated in Armand Guehi v. Republic [2013] TZCA 2188 thus: .. the strength or otherwise o f the doctrine (of the last person to be seen alive with the deceased) depends solely on the explanation which may be 22

given by the person to displace the presumption that he may be the culprit behind the death o f such person..." Yet, in Abel Mathias @ Gunza @ Bahati Mayani v. Republic [2023] TZCA 25, we referred to Miraji Idd Waziri @ Simana & Another v. Republic Criminal Appeal No. 14 of 2018 (unreported) in which the principle was put clearer as follows: "... 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...." Subjecting the above to the instant appeal, it is glaring from the record that, the trial court found sufficiently established through PW2 that the deceased was last seen alive on 11 October 2020 before taking the appellants to Kiru Kibaoni on a motorcycle they had hired from him. It was equally satisfied that, PW2 sufficiently identified the culprits as the same people who hired him to take them to Kiru Kibaoni having spent ten minutes with them negotiating the fare with him on a broad day light on the material time thereby eliminating any possible mistaken identity. It is significant that, neither did the appellants controvert PW2's evidence in cross examination nor in their defence. 23

Despite the confessional statements (exhibits P3 and P4) as well as the second appellant's alleged confession in court, the court looked for other pieces of evidence before making a finding of guilt against the appellants. It referred to evidence of discovery of both the deceased's body in the forest to which the appellants led PW9 and his team as well as discovery of exhibit PI sold to PW6 and found at PW7's house. The discovery was a result of oral confessions made by the appellants to PW9. That is what is commonly referred to as confession leading to discovery derived from section 31 of the Evidence Act which provides: "When any fact is deposed to as discovery in consequence o f information received from a person accused o f any offence in the custody o f a police officer, so much o f such information', whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, is relevant " The above provision has been discussed by the Court in various decisions, amongst others, Director of Public Prosecutions v. Fadhili Chengula [2023] TZCA 17525 in which it referred to several cases discussing relevance of confession by accused persons. With regard to confession leading to discovery, it stated: 24

"... Furthermore , section 31 o f the Evidence Act provides for admissibility o f any information received from an accused person under police restraint, be it a confession or not I f it leads to discovery o f a fact We interpose to observe that while for an oral confession to be valid it must have been made by the accused person when he was a free agent\ a confession made by an accused person under police restraint leading to discovery o f a fact relevant to a case is admissible under section 31 o f the Evidence Act. For confessions leading to discovery see Mathias Bunda/a [[2007] TZCA16] Peter Mfalamagoha v. Republic, Criminal Appeal No. 11 o f 1979 [1979] 7ZCA 13 [7 November, 1979; TanzLIl]; and Mboje Mawe & Others v. Republic, Criminal Appeal No. 86 o f 2010 [2011] TZCA 136 [29 June, 2011; TanzLIl].” It is noted that, the trial court made no reference to section 31 of the Evidence Act but the reference is implicit from the discussion of the evidence of PW9 in relation to the appellants' oral confessions. TTiat evidence is to the effect that, the appellants robbed the deceased the motorcycle, killed him in a forest where they abandoned his body before vanishing with exhibit PI which they subsequently pawned to PW6. 25

Upon our own appraisal of the evidence on record, iike the trial court, we are satisfied that the oral confessions leading to the discovery of the motorcycle from PW7 as well as the deceased's body at kiru forest linked the appellants with the deceased's death. Despite discarding exhibits P3 and P4 as well as the second appellant's alleged confession, the remaining evidence firmly supported the trial court's finding that the appellants were responsible for the violent death of the deceased. Consequently, except to the extent indicated above, the appeal lacks merit and we dismiss it. DATED at DODOMA this 8th day of April, 2026. Judgment delivered virtually this 10th day of April, 2026 in the presence of the appellants in person - unrepresented, Mr. Stanslaus Halawe, learned State Attorney for the Respondent/Republic and Mr. L. J. S. MWANDAMBO JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL Court Clerk is hereby certified as a true copy of the

— R. W . CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 26