Frederick Michael John @ Bashite vs Republic (Criminal Appeal No. 331 of 2023) [2026] TZCA 352 (26 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA fCORAM: NDIKA. 3.A.. FIKIRINI. J.A. And ISMAIL, J.A.) CRIMINAL APPEAL NO. 331' OF 2023 FREDERICK MICHAEL JOHN @ BASHITE ......................... APPELLANT VERSUS THE REPUBLIC .................... ................................... ...... RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Musoma) ( Mahimbali. J.) dated the 13th day of March, 2023 in Criminal Sessions No. 84 of 2022 JUDGMENT OF THE COURT 20h February & 20h March, 2026 ISMAIL. J.A.: The appellant stood trial in the High Court at Musoma (trial court). He was accused of murder that tragically terminated the lives of two siblings, Dorice Samson Okech and Nickson Charles Sendama, on 25th September, 2020, at Ukerewe Road Street in Bunda District, Mara Region. The learned trial Judge convicted the appellant of the offence and sentenced him to death. Bemused by the trial court's verdict, the appellant has instituted this appeal. i

It is gathered from the record of appeal that the appellant and Dorice, a 17-year-old girl, were in love intimacy. At the time, Dorice, her five-year-old brother, Nickson, and PW2, Junior, aged 10 years, were living in their Bunda house. Their mother, PW8, was in Mpanda where she was running a business. These family members were under the stewardship of PW8's mother who lived a few blocks away. On the morning of 25th September, 2020, PW2, woke up and went to school, leaving behind his two siblings and the appellant, a regular visitor to their home and whom Dorice preferred that they call him "brother". On return from school, PW2 found the house under lock and key. He left for their aunt's house where he kept waiting for his siblings but in vain. He decided to walk to their grandmother's home where he spent a night. The following day was spent making enquires on the deceased's whereabouts but nothing of significance came out. PW2 spent the second night in the grandmother's house. On the third day, PW2, and the grandmother went to their home and found the house still locked. It is then, that the grandmother enlisted the services of a Mr. Jacob, a carpenter, who broke the door open. Inside the house, streams of blood stains were found on the floor of a smelly living room. Jacob and the grandmother pulled the coaches 2

and, to their utter shock and disbelief, they found Dorice's body lying on the floor, lifeless and decomposed. The matter was reported to the police who arrived at the scene of crime, They also conducted a search for Nickson's body and they found it in the same state as Dorice's. The bodies were taken to a Bunda based hospital known as DDH. PW8, who travelled to Bunda established that, besides the murder incident, there was also a theft incident that involved her television set, a decoder and a cell-phone. Purchase of the television set was evidenced by a purchase receipt admitted in court as exhibit P9. A police swoop led to the appellant's arrest in Mwanza. On interrogation, the appellant allegedly owned up to the incident. On the stolen items, he allegedly stated that he sold them to PW5 and PW6. The items were recovered through exhibits P4 and P6, a search order and certificate of seizure, respectively. At DDH, PW3 and PW4 conducted autopsies of Dorice and Nickson, respectively, and the findings were that Dorice's death was due to suffocation following heart and lungs failure as a result of neck strangulation. As for Nickson, his demise was due to traumatic brain injury. PW4 found that the deceased's head carried a depressed fracture 3

and his brain compressed. Postmortem examination reports were admitted as exhibits PI and P2. The appellant's defence was largely an admission of wrong doing with respect to deaths of the deceased. He stated that, these deaths were a result of a scuffle that ensued when the late Dorice refused to let him, her boyfriend, leave the house until her mother comes and the two are officially introduced to the parents ready for marriage. In the course of pushing and shoving, the duo fell on Nickson who was a bystander. The appellant picked Nickson and hit him against the wall, leading to his instant death. As for Dorice, the appellant admitted that, in the course of the brawling, he held her by the neck and subdued her, leaving her gasping for air and lying on the floor before he fled. He denied that he stole any items from the house. The trial court found the prosecution's account believable. In the end, it convicted the appellant of murder and sentenced him to death by hanging. Disenchanted, the appellant is seeking a vindication. Before us, the appellant was represented by Mr. Leonard Magwayega, learned advocate, whereas Ms. Sabina Choghoghwe, learned Senior State Attorney, Mses. Agma Haule, Natujwa Bakari and Mr. Jonas Kivuyo, all learned State Attorneys, appeared for the respondent. Mr.

Magwayega chose to argue the grounds raised in the supplementary memorandum of appeal from which he only picked grounds two and four which he argued conjointly. Mr. Magwayega argued that, the appellant's conviction was predicated on exhibit P8, his cautioned statement. He contended that, the statement was not read out during the committal proceedings, thereby offending the provisions of section 263 (2) (formerly section 246 (2)) of the Criminal Procedure Act, Cap. 20 R.E. 2023 (CPA). Mr. Magwayega asserted that, having failed to do so, the prosecution's remaining window was the invocation of section 308 (1) (formerly section 289 (1) of the CPA, but this chance was spurned. He implored us to do the inescapable, that is, to expunge exhibit P8. Mr. Magwayega further contended that, having crossed off exhibit P8, the residue of what was the prosecution's evidence is so paltry that it cannot ground a conviction. This is why, he argued, ground four of the supplementary memorandum of appeal raises a contention that the case for the prosecution was not proved beyond reasonable doubt. He urged us to allow the appeal and set the appellant at liberty. Ms. Haule, who addressed us on behalf of the respondent's legal team, magnanimously conceded to the anomaly raised with respect to 5

exhibit P8. She quickly joined hands with her counterpart on the fate that exhibit P8 should suffer, which is its expungement. She, however, was starkly opposed to Mr. Magwayega's contention that what remains of the prosecution's evidence is too measly to sustain a conviction against the appellant Ms. Haule besought us to apply rule 36 (1) (a) of the Tanzania Court of Appeal Rules, 2009 and re-appraise the available evidence and draw an inference of fact. The learned State Attorney was convinced that two doctrines were at the learned trial Judge's disposal, and that he applied them to good effect. These are: one, the doctrine of the last person to be seen with the deceased and, two, the doctrine of recent possession. On the last person to be seen with the deceased, Ms. Haule drew our attention to pages 32 through to 36 of the record of appeal. She particularly made reference to page 34 at which PW2 testified that, on the fateful day, the witness left for school, leaving behind the appellant and the deceased persons and that, when he came from school, he could not find any of them, including the appellant. Ms. Haule contended that the testimonial account of PW2 was corroborated by the appellant's own account who, at page 67 contended that, when he left the scene of crime both deceased persons were still alive.

Turning on to the doctrine of recent possession, Ms. Haule referred us to the testimony of PW1, PW5, PW6 and PW7. While PW1, was an officer who seized items allegedly stolen from the scene of crime, the other witnesses were buyers of those items. She contended that the seizure, done vide exhibits P4 and P6, came as recently as five days after the incident. She bolstered her argument by referring us to the decision of the Court in Robert Berenado Steven v. Republic [2025] TZCA 212. Ms. Haule submitted that the case for the prosecution was satisfactorily proven by demonstrating that: (i) deaths of the accused persons were unnatural (ii) that the appellant was involved, and (iii) that the appellant caused the deaths with malice aforethought. On malice aforethought, the learned counsel singled out a couple of instances. One/ the act of pulling Nickson and hitting him against the wall, as disclosed by the appellant himself at page 66 of the record and corroborated by exhibit P2. The same testimony unravelled the appellant's attack on Dorice, at page 66. The learned counsel contended that, the use of excessive force against Dorice manifests the appellant's intention to kill. Two, the act of locking the deceased persons in the house and leaving the scene of crime without attending to them reveals the

appellant's conduct and motive i.e. he desired that she should die and rot. Ms. Haule drew our further attention to page 68 of the record of appeal and argued that, the appellant admitted that he did not aid Dorice even after she gasped for air. The learned counsel further referred us to exhibit PI at page 90 of the record of appeal in which cause of Dorice's death was said to be strangulation. She also referred us to the testimony of PW3 who, at page 37 of the record, testified that the late Dorice's neck was broken and that her head was freely moving at 180 degrees. Invoking the reasoning of the Court in Enock Kipela v. Republic [1999] TZCA 299, Ms. Haule insisted that malice aforethought of the appellant must be inferred from his conduct, during and after the incident. She urged us to dismiss the appeal. We shall begin our disposal by addressing the complaint in ground two, which has taken a serious exception to the admission of exhibit P8. The record is clear, at page 139 of the record of appeal that, during the committal proceedings, a number of documents were listed as the prosecution's intended exhibits. Exhibit P8 was not in the list, meaning that its substance could not be read out to the appellant. When the prosecution sought to have it admitted, such admission ought to have followed the procedure enshrined in section 308 (1) and 8

(2) of the CPA. This was not done, and the omission renders the exhibit inadmissible. Where the same is admitted, as is the case in the instant matter, the call to cross it off is legitimate and we accede it. Accordingly, we hereby expunge exhibit P8. The next big task is to pronounce ourselves on the sufficiency of the remainder of the testimony. Learned counsel have divergent views on this. Whilst it is settled that the best witness in a criminal trial is the one who confesses his guilt - see: Paulo Maduka & 4 Others v. Republic [2009] TZCA 159, the court can still - in the absence of the confession or a direct eye witness account - found a conviction if the residual testimony irresistibly points to the appellant as the holder of a culpable role. Such other testimony would include the evidence on the last person seen with the deceased and testimony that brings into play, the doctrine of recent possession. Ms. Haule has clung onto these doctrines to lay her claim that the case against the appellant was proven. We will examine them. We have held in a plethora of our decisions, including Fernandes Francis v. Republic [2024] TZCA 1191 that, the doctrine of recent possession is a rebuttable principle which assumes that a person found in possession of stolen goods, soon after the criminal incident is the perpetrator of the incident or he is a recipient of such goods while knowing 9

that they are proceeds of a criminal incident. If it is theft, then he is assumed to be the perpetrator of the theft incident. Over time, this principle has extended to other offences such as homicide. To successfully invoke this doctrine, the prosecution carries an enviable duty of proving existence of ingredients constituting it. These principles have been accentuated in many a decision. In Gift Briton @ Mwakasunga & Another v. Republic [2024] TZCA 1256, we held as follows: "To bring into piay the doctrine o f recent possession, it has been the iaw that the prosecution mustprove that; (1) the property was found with the suspect, (2) the property is positively identified and proved to be the property o f the complainant and, (3) the stolen thing constitutes the subject o f the charge against the accused...," A more elaborate postulation was given in our earlier decision in Alex Joseph Kasharankoro v. Republic, Criminal Appeal No. 156 of 2013 (unreported) wherein we guided as hereunder: "For the doctrine of recentpossession to apply as a basis of conviction it must be positively proved that, first, that the property was found in 10

possession o f the suspect. Second, that the property is positiveiy the property of the complainant Third, that it was recently stolen from the complainant and lastly, that the stolen thing in the possession of the accused constitutes the subject of the charge against the accused. It must be the one that was stolen or obtained during the commission of the offence charged...." In the instant matter, PW1 has testified on how he received a complaint from PW8, the deceased's mother, of the household items that went missing after the murder incident (exhibit P9). These items were listed in her testimony at page 57 of the record of appeal. PW1 also testified that the appellant admitted that he got away with the missing items that he sold to PW5 and PW6. PW7 was said to be instrumental in the sale of a mobile phone to PW6. These items were seized vide exhibits P 4 and P6 on 30th September, 2020, barely five days from the day on which the incident occurred. We are settled in our minds that these items were found in the possession of PW5 and PW6 after they had been recently sold to them by the appellant. At page 59 of the record of appeal, PW8 testified that she positively identified the stolen items and produced a receipt to exhibit their acquisition. These items were, undoubtedly, a subject of a criminal i i

incident that occurred five days to the date of their recovery, and were connected to the incident that claimed the lives of the deceased persons. We are overly convinced that Ms. Haule's call for application of the doctrine of recent possession is fitting and we accede to it. This testimony connects the appellant to the murder incident. The next question is whether the doctrine of the last person to be seen with the deceased fits in the circumstances of this case and whether the same can serve as the basis of finding the appellant liable. This is a doctrine premised on a presumption that the last person who is seen with a victim who is subsequently found dead is responsible for his death. This principle shifts the conventional burden of proof from the prosecution and requires the accused to explain how the deceased met his demise. Failure to satisfactorily explain that out puts him at risk as he may be considered to be the perpetrator of the incident that caused the victim's death. This principle was succinctly restated in Mathayo Mwalimu & Another v. Republic, [2009] TZCA 126. The Court held: "...ifan accusedperson is alleged to have been the last person to be seen with the deceased, in the absence ofa plausible explanation to explain away the circumstances leading to the death ; he or she will be presumed to be the killer,." 12

We need to restate, at this point that, the application of this principle is not indiscriminate and courts have often been warned against invoking this principle blindly. The key message here is that, not in all cases in which a person who was last seen with the deceased is such person guilty of murder of such deceased. Courts in India have adopted the same stance. In Rajwali v. State, A.I.R 1959 J. SCK 66 at P. 67: 1959 Cr. L.J. 839, for instance, the Supreme Court of India made the following scintillating remarks: "In a murder trial the circumstances that the deceased was fast seen with the accused and the fact thatafter the murderthe accused disappeared may be the circumstances which may create great suspicion against the accused but they cannot be sufficient to hold accused guilty o f murder o f the deceased. In a criminalprosecution the burden o fprooff on the whole, remains, on the prosecution and in order to succeed the prosecution must produce evidence to substantiate its case.Normally it cannot take advantage o f the weakness of the defence." It is why, in the previous decision of In Re. Dauget Saitaya, 1955 W.R. 863, the Indian court declined to hoid the accused guilty of murder of a woman he lived with as his wife. The court held that, being seen 13

together on the day of the incident and then making himself scarce in the neighbourhood was not a sufficient basis of a conviction. It follows that, an accused would only bear blemishes if there is evidence that corroborates the suspicion. We accentuated this in Maswi Nchama v. Republic [2024] TZCA 1157 as hereunder: "In the circumstances, it is our considered view that , ; the said fact, that the appeiiant was the iast person to be with the deceased, in itself, is not conclusive evidence to establish that it was the appeiiant who killed him, other cogent corroboration evidence was necessary, as [suspicion] alone, however strong, cannot be a ground for conviction." See also: Richard Matangule & Another v. Republic [1992] T.L.R. 5. In the instant matter, the testimony that raised this presumption was that of PW2, a sibling of the deceased young persons. He recounted how he started off to school on the fateful day, leaving the appellant and the deceased at home, never to find them alive when he came back. Besides narrating efforts employed to locate the lifeless bodies of his deceased siblings, PW2 testified that the appellant entered a disappearance. While this testimony sets the foundation for the invocation of the principle, the question we are confronted with is whether there 14

exists any corroborating testimony. Ms. Haule has argued that there is and we cannot agree more with her. We take the view that, the fact that the appellant was, through PW5 and PW6, found in possession of items which were recently stolen from the scene of crime, adds credence to the contention that he is a perpetrator of the murder incident which preceded the theft incident. These items were identified to belong to PW8, the deceased's mother. We entertain no doubt that, a combination of these pieces of evidence is probatively sufficient on which to base a finding of guilty against the appellant. The appellant's own generous account is also a significant addition to the respondent's case. He methodically stated how he executed the killings by hitting the younger of the deceased persons against the wall, while strangulating the other, hitting her to the ground to death, and then fleeing to Mwanza. In our unflustered view, the totality of this testimony and that of PW2, PW3, together with exhibits PI and P2 have proved that the ghastly deaths of the deceased were unnatural. It is also proven that such deaths occurred at the hands of the appellant, and that the latter was equipped with malice aforethought. These were, without any flicker of doubt, incidents of murder. It follows, therefore, that the learned trial Judge was 15

correct in finding the appellant guilty of murder. The conviction was properly grounded and so was the sentence. Consequently, save for ground two of the appeal that we have allowed, we find the appeal is largely destitute of merit and we dismiss it. DATED at DODOMA this 26th day of March, 2026. G. A. M. NDIKA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL Judgment delivered this 26th day of March, 2026 in the presence of appellant in person - unrepresented, Ms. Martha Mbosoli, learned State Attorney for the Respondent/Republic via virtual Court from Musoma, and Mr. Magesa Fabiane Mgeta, Court Clerk, is hereby certified as a true copy DEPUTY REGISTRAR COURT OF APPEAL 16