Mgwasi Jumanne Wapori & Another vs Republic (Criminal Appeal No. 699 of 2023) [2026] TZCA 355 (26 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA f CO RAM: NDIKA. 3.A.. FI KIRIN I, 3.A. And ISMAIL J.A.l CRIMINAL APPEAL NO. 699 OF 2023 MGWASI3UMANNE WAPORI ..........................................1 st APPELLANT MULABU MUYA ................................... .............................2N DAPPELLANT VERSUS THE REPUBLIC .......... . ............... . ....... . ................................ RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Musoma) fMtulva, 3.) dated the 17th day of October, 2023 in Criminal Sessions No. 24 of 2022 JUDGMENT OF THE COURT I9 h February & 2&h March, 2026 ISMAIL, 3.A.: The appellants were jointly charged with murder. They were alleged to have kilted Nyabise Webiro in the most egregious manner. The incident is alleged to have occurred on 25th September 2022, at Nyegina Village in Musoma District, within Mara Region. The prosecution's account informs that, on the fateful night, the deceased was found by her daughter (PW1) and her brother (PW2) lying in a pool of blood inside her house. She told them that she had been attacked by assailants who chopped her private parts and got away with them, leaving her in horrible pain and bleeding profusely. It was alleged i that the deceased ably identified the appellants to be her assailants and that she named them to PW1 and PW2 who rushed her to Nyasho Hospital. On advice by the latter's officials, the deceased was taken to Musoma Referral Hospital. A medical examination carried out by PW3 revealed that the deceased sustained multiple injuries on the head, stomach and her vagina. In his testimony, PW3 stated that she found that the deceased was also raped. She succumbed to the injuries when she was undergoing an operation. Cause of the death was said to be multi organs failure caused by severe visceral injury. PW4 led the investigation that culminated in the arrest of the appellant on 10th October, 2022 and 1s t November, 2022, respectively. Of the two, the 2n d appellant, whose statement was recorded by PW5 was said to have confessed to his involvement in the murder incident, along with the 1s t appellant. The duo was arraigned in court but pleaded not guilty to the charged offence. The appellants' defence was a refutation of the allegations levelled against them. In the case of the 1s t appellant, his contention was that what is considered as his confessional statement on which the 1 s t appellants guilt was founded was nothing but an incrimination which was 2 procured involuntarily after he was tortured during his incarceration at Musoma Police Station. The trial court was convinced that the prosecution had done enough by presenting a case which was credible and coherent enough to establish the appellants 7 culpable role. It went ahead and convicted both appellants of murder and sentenced them to death. The decision was not to the appellants' liking, hence their decision to institute the instant appeal. The appellants filed three different memoranda of appeal containing a total of 12 grounds of appeal. At the hearing before us, the appellants were represented by Messrs Onyango Otieno and Cosmas Tuthuru, both learned counsel, for the 1s t and 2n d appellants, respectively. On the respondent's side were Ms. Monica Hokororo, learned Principal State Attorney, assisted by Mr. Nico Malekela and Ms. Happiness Machage, both learned State Attorneys. The first salvo was fired by Mr. Tuthuru, who chose to submit on ground one which is a general ground. In this ground, the appellants' contention is that the case for the prosecution was not proved beyond reasonable doubt. Mr. Tuthuru argued that, the case for the prosecution was built on the testimony of PW1, PW2 and exhibit P2, the dying declaration. While the said declaration was purportedly corroborated by 3 PW2, the learned counsel's contention is that such declaration is of no evidentiary value since the circumstances of the appellants 7 identification were not stated. He argued that, the deceased ought to have stated how she identified the appellants, in line with what the Court reasoned in Magimbi Mzini v. Republic [2025] TZCA 1122; and Hamis Hussein & Others v. Republic [2025] TZCA 450. Mr. Tuthuru drew our attention to page 3 4 0f the record of appeal and submitted that, PWl's testimony covered at that page did not say how the deceased recognized or identified the appellants. The same can be said with respect to the testimony of PW2, he argued. Turning on to exhibit PI, the cautioned statement, the learned counsel argued that the same did not conform to the requirements set out in section 58 (4) of the Criminal Procedure Act, Cap. 20 R.E. 2023 (CPA). He further contended that its recording was not consistent with Police General Order 236. He implored us to follow the reasoning in Mbuzi Lushona & Another v. Republic [2024] TZCA 964 and expunge it. Mr. Tuthuru was also critical of the credibility of the witnesses. He particularly singled out PW1 whose testimony, he argued, did not provide any details on the identity of the appellants. He chastised the testimonial account of the said witness, drawing a particular attention to the date of 4 the incident which is different from the date cited in the information. This, he argued, rendered the testimony adduced by PW1 lacking in credibility and, therefore, unworthy. Mr. Otieno weighed in with a couple of misgivings in the testimony on which the appellants' conviction was founded. Firstly, that there was inconsistency between PWl's evidence and that of PW2. He contended that, the variance resides in the time of commission of the offence and time at which the deceased was taken to hospital. Whereas PW1 stated that the assailant was Bugingo Webiro, PW2 stated that, besides Bugingo Webiro, there was also Mulabu Muya. He argued that time of commission of the crime is of essence, insisting that the discrepancy is not minor. Secondly, there was no evidence to corroborate the dying declaration. He was of the contention that the appeal is meritorious as the case against the appellants was not proved to the hilt. Ms. Hokororo did not share the stance taken by her counterparts. She was of the firm contention that the appellants 7 conviction was properly grounded. Regarding the dying declaration, her viewpoint was that, as a matter of law, corroboration is important and, in this case, the said declaration was corroborated as found at pages 98 to 101 of the record of appeal. 5 On identification of the appellants, the learned counsel contended that the appellants were known to PW1 and PW2 prior to the incident, adding that the latter lived in the same village with the appellants. She also submitted that, at page 44, the testimony is clear that the scene of crime was lit by solar power, believing that the lights were on during the incident. Addressing us on the confession, Ms. Hokororo contended that the 1 s t appellant voluntarily confessed to the killing and the motive of their actions. She was adamant that the law was also conformed to in recording the statement. The learned counsel urged us to stand by the established principle which is to the effect that a confessing accused presents the best evidence. She implored us to be guided by our decision in Yustus Katoma v. Republic, Criminal Appeal No. 242 of 2006 (unreported). With respect to the variance on the dates, Ms. Hokororo was quick to shrug it off, arguing that that was a mere slip of the pen which should be ignored. On the contradictions, Ms. Hokororo argued that the difference is attributed to the fact that, whereas PW2 was told of the incident while she was at the scene of crime, PW2 was told while the deceased was at the hospital. She argued that, in this case, malice aforethought can be 6 inferred from the number of blows inflicted on the deceased. These, she argued, were intended to kill. From the rival submissions, one key question is distilled. This is as to whether the case against the appellants was proved to warrant their conviction. As learned counsel argued in unison, the convictions against the appellants were, by and large, founded on the deceased's dying declaration, as testified on by PW1 and PW2, and the 2n d appellant's cautioned statement i.e. exhibit P2. Our entry point in the disposal of this appeal is on the disquiet raised on the time at which the incident allegedly occurred. Mr. Otieno has taken a swipe at the drafting of the information which left out the time of commission of the offence. This, in his contention, was a flaw of a humungous proportion and one that cannot be wished away. Ms. Hokororo considers it as a mere slip of the pen. We are aware that, inclusion of time of the alleged commission of the incident is one of the items spelt out in section 138 (f) of the CPA. We hasten to underscore, however, that such inclusion of time in a charge is only intended to provide clarity and certainty to the particulars of the offence. It is, in no way, a mandatory legal requirement unless it is 7 categorical that time is necessary in proving the offence. We restated this trite position in Yustus Aidan v. Republic [2022] TZCA 622, as follows: "Showing time in the charge sheet is not a iegai requirement but, in terms o fsection 234 (3) 12 o f the CPA and as we said in John Stephano & Others v. Republic, Criminal Appeal No. 257 o f 2021 (unreported), specifying time in a charge sheet can only be necessary where time is o f the essence in proving the offence. As there was no suggestion that time was o f the essence in proving rape in the instant appeal, we find no merit in the complaint In any case, as we stressed in John Stephano (supra), if there was any variance between the charge and evidence in relation to time on which the offence was committed, such variance wouldbe immaterialand the charge need not be amended ." See also: John Stephano & Others v. Republic [2022] TZCA 469; and Hamis Hussein Kihalule v. Republic [2025] TZCA 450. In the instant matter, the undisputed fact is that the information filed in court on 8 th May, 2023, did not factor in the time at which the murder incident allegedly occurred. But we are not convinced that, in the circumstances of this case, insertion of time would have the effect of proving the offence. We take the view that, the absence of time in the 8 information was not a significant or impactful omission that should make the appellants feel jittery. We dismiss the appellants' contention in this matter. There is also a crucial aspect of reliance on the deceased's oral dying declaration which was made to PW1 and PW2. This has also received a criticism by both counsel for the appellants, and the contention is that the same was not corroborated. There is also an issue surrounding identification of the appellants by the deceased. Variance in the testimony of PW1 and PW2 is also an issue that has raised the counsel's eyebrows. For a start, we need to state that, a dying declaration is a spoken statement made by a person regarding the cause or circumstances of their imminent death. Though primarily hearsay, such statement is, as an exception, admissible as evidence in court. A dying declaration may be oral or in written. The conditions for its admissibility have been expounded in numerous decisions across jurisdictions. In our own, the guiding provision is section 34 (a) of the Evidence Act, Cap. 6 R.E. 2023, which provides that the evidence of dying declaration is relevant only to the extent that it reveals the cause or circumstances that led to the declarant's death. 9 The conditions attached to this kind of testimony require courts to exercise caution and understand that, its evidentiary value depends on the circumstances in which it was made. The crucial aspect to be considered by courts is that they should not rely on such testimony unless they are satisfied that the same is free from tutoring, as there exists no chance for the declarant to be called for cross-examination - see: Magimbi Mzini(supra) It follows that, treatment of the dying declaration in criminal cases must align with broad principles as recapitulated by the Supreme Court of India in the case of Atbir v. Govt. (CT of Delhi) reported in [2010] 9 SCC 1. These principles are: (i) Dying declaration can be the soie basis o f conviction if it inspires the full confidence o f the court. (ii) The court should be satisfied that the deceased was in a fit state o f mind at the time o f making the statement and that it was not the result o f tutoring, prompting or imagination. (Hi) Where the court is satisfied that the declaration is true and voluntary,\ it can base its conviction without any further corroboration. (iv) It cannot be laid down as an absolute rule o f law that the dying declaration cannot be the sole basis o f conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. 10 (v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. (vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis o f conviction. (vii) Merely because a dying declaration does not contain ail the details as to the occurrence, it is not to be rejected. (viii) Even if it is a briefstatement, it is not to be discarded. (ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannotprevail. (x) I f after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis o f conviction, even if there is no corroboration.' Gathering from the testimony of PW1, there can be no doubt, in our considered view, that the declaration made by the deceased conformed to the broad principles quoted above. The deceased was not tutored or coerced into making the declaration. It is a declaration which was truthful, voluntary, and made by the person who was of sound mind, revealing the cause or circumstances of what led to her death. PW1 testified that the declarant told her that her assailant was the 2 n d appellant who used a knife to mutilate her private parts. We entertain no doubt that the declaration had what it takes to be admitted as evidence in support of the 11 prosecution's case. - see: Six Ilanga @ Msaka v. Republic [2024] TZCA 95. On whether the dying declaration was corroborated, our settled position is that this testimony was amply corroborated by PW4 and exhibit PI. The testimony confirmed the fact that the deceased sustained multiple wounds in her private parts, stomach, small intestine and that her bladder was torn. There is also a complaint regarding identification. The contention by the counsel for the appellants is that necessary conditions for identification were not stated. The counsel for the respondent has taken the view that the scene of crime was sufficiently illuminated to allow unmistakable identification. We are not convinced that there could be a case of mistaken identity where the assailants are recognized members of the same village. They are well known and PW1 and PW2 have testified to the effect that these are the people they have known all their life. This is found at pages 35 and 42 of the record of appeal. On whether the appellants were positively identified, the 2 n d appellant's confession has stated that they had enough time with the deceased and even enjoyed a drink together. 12 Next is the emotive issue relating to admissibility of exhibit P2, a cautioned statement recorded by the 2n d appellant. The contention by Mr. Tuthuru is that its recording infracted section 58 (4) of the CPA (formerly section 57 (4)). He has taken an exception to the certification by the recording officer and the 2 n d appellant. We preface our analysis on this ground by first acknowledging the legal position as it currently obtains with regard to failure to comply with the cumulative requirements set out in section 58 of the CPA. As counsel argued, our decision in Mbuzi Lushona @ Mwangaiki (supra) stands out in that respect. But the question that has drawn our attention is whether, in the instant matter, section 58 (4) of the CPA was conformed to. It should be noted that this provision lists down key requirements that must be imperatively conformed to by the recording officer when recording a statement. They include asking the suspect to sign the certificate at the end of statement, and certification under the recorder s hand that he has done what the law requires of him. We have scrupulously reviewed exhibit P2, found at pages 113 to 115 of the record of appeal. Of specific relevance is page 115 at which certifications by the 2n d appellant and the recording officer are found. In the case of the 2n d appellant, the certification is in Kiswahili and it read as follows: "MimiMULABUS/O MURUNGU @ MUYA ninathibitisha kuwa haya maelezo ni ambayo nimesomewa na kuona kuwa ni sahihi. "This literally means that: "I MULABU S/O MURUNGU @ MUYA confirm that the statement has been read out to me and It is accurate ." He then appended his right thumbprint. Immediately after this certification, the recording officer stated in Kiswahili as follows: "Mimi G. 2705 D'CPL ISAYA nathibitisha kuwa maelezo haya ya onyo ya MULABU S/O MURUNGU @ MUYA nimeyaandika kwa usahihi na uaminifu chini ya kifungu namba 57 (4) cha Sheria ya Mwenendo wa Mashauri ya Jinai Sura ya 20 kama ihvyofanyiwa marekebisho mwaka 2020. 'This means that % Police Officer No. G. 2705 D'CPL ISAYA confirm to have recorded the statement o f MULABU S/O MURUNGU @ MUYA and that I recorded the statement accurately and faithfully in terms o fsection 58 (4) of the Criminal Procedure Act Chapter 20 as revised in 2023." The recording officer signed it after the certification. As alluded to earlier on, Mr. Tuthuru is not convinced that this was enough, because the certification is a printed form that offends PGO 236 (9). With profound respect, we find this contention a little specious. Rule 9 of the said PGO stipulates as follows: 14 "Any statement made in accordance with the above Ru/es should, whenever possible be taken down in writing and signed by the person making it after it has been read to him and has been invited to make any corrections he may wish." Looking at exhibit P2, there is no doubt that the same is in written form. Whilst the significant part of the statement is in hand written form, only few parts of the statement are in printed form, precisely because this is what the template dictates. The printed form does not lessen the importance of the statement or offend rule 9 of PGO 236. The statement is still in writing. It is duly certified and signed by the 2n d appellant and the recording officer. In our view, the need to record a statement in hand written form only arises where the possibility for doing so arises. The concern raised by learned counsel for the 2n d appellant is, in all materia! respects, akin to what arose in the case of Nyaitichaina Mgendi @ Mokiri v. Republic [2026] TZCA 164. In that case, an attempt was made to lash out at the statement whose manner of recording and certification was similar to what is impeached in the instant matter. Seeing nothing untoward on the manner in which the statement was recorded, the Court dismissed the contention by holding as follows: "Mr. Tuthuru asserted that the certificate should have confirmed that the statement was read 15 aloud, deemed accurate, and that the suspect had no corrections, alterations, or additions to make. His formulation appears to be ideal; yet we believe that the contested certification conveys the same meaning. The most significant aspect for us is that the appellant seemed content with the statements veracity. In the premises, we deem it largely compliant with the law." We, in consequence, find nothing flawed in the extraction of exhibit P2 and we reject this complaint out of hand. Still on exhibit P2, a question arises regarding its probative value against the appellants. We shall start with 1s t appellant, a co-accused in the trial proceedings. It is common ground that the 1s t appellant did not make any confessional statement owning up to the murder incident. His culpable involvement was gathered from the 2 n d appellant's confessional statement, exhibit P2. This is what gave details on how the duo allegedly worked hand in glove in executing the murder. It is also instructive that, PW1, to whom the deceased made her dying declaration, did not name the 1s t appellant. The question which follows is, can exhibit P2, a co accused's inculpating account be the basis of conviction against the 2 n d appellant? 16 The trite law is that, as a matter of general principle, the evidence of a co-accused may be used to found a conviction against his co-accused. This is in terms of section 33 (1) of the Evidence Act which stipulates as hereunder: "33- (1) When two or more persons are being tried jointly for the same offence or for different offences arising out o f the same transaction,, and a confession o f the offence or offences charged made by one o f those persons affecting himseif and some other o f those persons is proved, the court may take that confession into consideration against that other person." [Emphasis added] The key condition, which is also a statutory requirement, for consideration of the confession against a co-accused is that, there must be another set of testimony that corroborates the co-accused s testimony. This imperative condition is a prescription under sub-section (2) which stipulates as follows: "Notwithstanding the provision o f subsection (1), a conviction o f an accused person shaii not be based solely on a confession by a co-accused." Noteworthy, the corroborating evidence may be in the form of circumstantial evidence or by looking at the conduct or words of the co- 17 accused. We underscored this imperative need in Pascal Kitigwa v. Republic [1994] T.L.R. 65, in which we observed as follows: "However, as correctly observed by the trial magistrate and the learned judge, even though the law is such that a conviction based on uncorroborated evidence o f an accomplice is not illegal, still as a matter o fpractice, the then Court o f Appeal for Eastern Africa and this Court have persistently held that it is unsafe to uphold a conviction based on uncorroborated evidence o f a co-accused. In this case, the trial magistrate as well as the learned judge on first appeal apart from warning themselves o f the danger o f convicting on uncorroborated evidence o f the second accused (DW2), went further to look for other evidence implicating the appellant. It is common ground that corroborative evidence may well be circumstantial or may be forthcoming from the conduct or words o f the accused." A similar position was adopted in State v. Nalini, Criminal Appeal No. 325 of 1998. The Supreme Court of India held that, the decision on the weight to be accorded to the testimony of the co-accused is a matter that rests in the trial court's discretion. It insisted, however, that as a 18 matter of prudence, the court may look for some more corroboration if a confession is to be used against a co-accused. We have painstakingly scoured the record of appeal and, specifically, the prosecution's evidence. Nothing conveys any semblance of feeling that any of that evidence injected a corroborative influence in the 2n d appellant's confessional statement. Not a shred of circumstantial evidence or words or conduct of the 1 s t appellant are there to enhance the probative value of the 2n d appellant's confession. We are of the view that, the learned trial Judge ought to have concluded that it was unsafe to rely on that testimony alone and rope in the 1s t appellant. We are of the firm view that conviction of the 1 s t appellant was shrouded in serious evidential inadequacy. We, accordingly, allow his appeal against conviction. It follows that his conviction and sentence are hereby quashed and set aside, and set him at liberty immediately, unless held for other lawful reasons. The next consequential issue for our determination is whether the testimony available sufficiently proved the case against the 2 n d appellant. As alluded to earlier on, the trial court's conviction was predicated on the dying declaration and exhibit P2. We have pronounced ourselves on the dying declaration and we think that the learned trial judge properly adverted his mind to the law on it and the conclusion he made in respect thereof is unblemished. Regarding exhibit P2, the record of appeal indicates that the same was tendered in court by PW5, but objected to. However, the objection was predicated on the alleged failure to conform to the requirements of sections 51 and 57 of the CPA. Voluntariness of the confessor was not an issue. This means, as Ms. Hokororo rightly argued, the 2n d appellant was a free agent. This contention was not assailed by learned counsel for the appellants during the appeal proceedings. It is settled law that, an accused person's own confessional statement may ground a conviction, provided that the same was made freely and voluntarily. The duty is cast on the prosecution to prove that the accused person was a free agent when he made the confession. Once voluntariness is established, the confessing accused becomes the best witness. This position was elucidated in Paulo Maduka & 4 Others v. Republic [2009] TZCA 159 wherein the Court stated as follows: "There is no doubt that a confession to an offence made to a police officer is admissible. The very best o f witnesses in any criminal trialis an accused person who confesses his guiit..." 20 We have meticulously reviewed exhibit P2. What we have gathered is that the 2 n d appellant's involvement in the execution of the murder incident against the deceased was undoubted. The confession has given details of how the incident was pre-meditated, the motive it intended to achieve and how money would change hands after accomplishment of the mission. The confession has gone further to state the weapon that was used, injuries inflicted and parts of the body which were targeted for the attack. Simply stated, the 2n d appellant's statement was so detailed that it contained information that the 2 n d appellant shared with nobody else before he recorded his statement. This statement revealed the act (actus reus) and the malice aforethought which is also manifested in the type and size of the injuries inflicted, number of blows and areas targeted for attack. The magnitude of the injury was corroborated by exhibit PI and the testimony of PW3. The manner of disclosure by the 2n d appellant mirrors what the Court observed in Michael Luhiye v. Republic [1994] T.L.R. 181 in which it held: "With respect to the learnedjudge we agree with his finding that appellant's cautioned statement to the poiice was so detailed, elaborate and thorough that no other person could have made the statement but the appellant." 21 The totality of all this leads us to the conclusion that the case against the 2 n d appellant was proved beyond reasonable doubt and we, on our part, find nothing on which to fault the trial court's finding. In sum, we find the appeal by the 2n d appellant hollow 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 1s t and 2n d appellants appear 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 of the original. 22