Richard Seni Mwampaji & Another vs Republic (Criminal Appeal No. 272 of 2024) [2026] TZCA 357 (26 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA ( CORAM: KEREFU. J.A.. KAIRO. 3.A. And NANGELA. J.A/ 1 CRIMINAL APPEAL NO. 272 OF 2024 RICHARD SENI MWAMPAJI ............... . ......... . .................. 1 st APPELLANT NYAMAJANHANGA CHIHUMBI KIN DO.................. . .2 nd APPELLANT VERSUS THE REPUBLIC ........................... . ....................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mbeya) f Kawishe. J.) dated the 4thday of April, 2024 in Criminal Sessions Case No. 13 of 2022 JUDGMENT OF THE COURT 13th February & 2&* March, 2026 KAIRO, J.A.: The appellants, RICHARD SENI MWAMPAJI and NYAMAJANHANGA CHIHUMBI KINDO, were arraigned before the HighCourt of Tanzania at Mbeya for the offence of murder contrary tosections 196 and 197 of the Penal Code, Chapter 16 of the Revised Laws (the Penal Code) in Criminal Sessions Case No. 13 of 2022. The information laid by the prosecution alleged that, on 26th May, 2021 at Shinyanga Hamlet-Mamba Village within Chunya District in Mbeya Region, the appellants murdered one Yunge Bundi (the deceased). The appellants pleaded not guilty to the charge. However, after a full trial, they were convicted and each was sentenced to suffer death by hanging. To establish its case, the prosecution paraded a total of six witnesses and tendered three documentary evidence, namely, the Postmortem Examination Report (exhibit PI), the sketch map of the scene of crime (exhibit P2) and the first appellants cautioned statement (exhibit P3). The appellants relied on their own evidence as they did not call any witness. Briefly, the substance of the prosecution case as obtained from the record of appeal indicates that, the deceased was living with her husband together with their children and grandchildren at the same compound. It was the testimony of Kwimba Mashemelo John (PW4), one of the deceased grandchildren that, on 26th May, 2021 at around 19:00 hours, when they were outside with her grandparents having dinner, her uncle one Nyamajanhanga (the second appellant), who was accompanied by two other people (not known to her), entered their compound and asked for her father. PW4 informed them that her father was at Balia's house. PW4 testified that, she managed to identify the other two people, as one was wearing a black jacket and the other one had a sweater. That, after they told them that her father was not around they left. It was the further testimony of PW4 that, a moment later, while they were still having their dinner outside, two of the said people, without her uncle, returned at the scene of crime and started attacking her grandmother. That, she recognized them by their clothes which they wore when they came for the first time with her uncle Nyamajanhanga. PW4 said, upon seeing her grandmother being seriously beaten, she ran to Balia's house where she found Balia, Semeka John Ndaki (PW2) and Polu. She informed them that they have been invaded at their home by the two people who were attacking her grandmother. PW2 and the other people, quickly rushed to the deceased's home while leaving PW4 at Balia's house. In her testimony, PW2 supported the narration by PW4 and added that, on their way, and when they approached their home, they found two people coming from the deceased's home. Upon seeing them, the said people parted ways and started running. PW2 and her team decided to pursue them and asked why they were running? PW2 asserted further that, she managed to identify the culprits with the aid of moonlight lights. That, one of them had a knife, while his fellow was holding a stick and wore a black jacket. Upon getting hold of them, the one with the stick, started attacking PW2, while the one with the knife took to his heels. They arrested the one with the stick who happened to be the first appellant. Upon inquiry, the first appellant told them that, he was a new comer in that area. That, he arrived on the same day from Tabora after being engaged by the second appellant to kill the deceased because she was bewitching his family. That, he was engaged together with his colleague, one Mussa Igosha (who ran away) to perform the said task. Having received that confession, they asked the first appellant to lead them to the scene of crime who complied and led them directly to their home, where PW2 found that, her mother had been killed. PW2 went on to state that, they reported the matter to the Chairperson of the hamlet one Masunga Malagashi (PW3), who went to the scene of crime and found the deceased's body lying on the ground surrounded by blood. PW3 stated further that, there were many people gathered at the scene together with the two suspects. PW3 interrogated the first appellant who confessed to have killed the deceased after being engaged by the second appellant together with his colleague to kill the deceased. That, the second appellant told them that the deceased was bewitching his family. PW3 phoned the police officers who arrived at the scene of crime together with Dr. Josam Menad Nyato (PW1). PW1 examined the deceased's body and concluded that the cause of death was excessive bleeding due to cut wounds on the deceased's scalp and neck. A postmortem report to that effect was admitted in evidence as exhibit PI. No. G. 1691 D/C Peter (PW5), the investigation officer, testified that, he was involved in the investigation of the incident and visited the scene of crime on 26th May, 2021 around 22:00 hours, in a company of other police officers and PW1. That, at the scene they found many people gathered and the deceased's body was lying on the ground outside her house. They also met PW2, PW3, PW4 and other villagers who had already arrested the appellants. PW5 stated further that, they interrogated the appellants who confessed to have killed the deceased. PW5 drew the sketch map of the scene of crime (exhibit P2). PW5 stated further that, they, then allowed the deceased relatives to bury the deceased's body and brought the appellants to Lupa Police Post and thereafter took them to Chunya Police Station. At the police, PW5 recorded the cautioned statement for the second appellant. It was the testimony of PW5 that, during the interview, the second appellant confessed to have engaged the first appellant and one Mussa Igosha to kill the deceased as she was bewitching his family. The cautioned statement by the first appellant (exhibit P3) was recorded by No. F. 2496 D/SSGT Philemon (PW6). In his testimony, PW6 also testified that, during the interview, the first appellant confessed to have killed the deceased after being engaged by the second appellant to do so. In their respective defence, both appellants denied any involvement in the alleged offence. The first appellant, who testified as DW1, apart from admitting that, on the fateful night he was arrested by PW2 and her team and brought to the scene of crime, he stated that, he was living In Tabora. That, on 26th May, 2021, he left Tabora to Mbeya by A.N. Bus. That, at around 19:00 hours, he arrived at Lupa Tingatinga and hired a bicycle to Shinyanga hamlet to his host one Nihangwa Tungule. That, as it was getting late, he started asking for the house of the ten-cell leader for accommodation. Suddenly, he heard people talking, and waited for them to ask for the direction to the ten cell leader's house. That, upon arrival, the said people started beating him and accused him to have committed the offence and took him to the scene of crime. He thus repudiated exhibit P3 alleging that he was tortured and forced to sign it. He also contended that, he did not know the said Mussa Igosha and or the second appellant prior to the incident. That, he first met the second appellant when they were charged together for this offence. That, the case was framed against him. The second appellant, who testified as DW2, apart from admitting that he knew the deceased as his mother in-law and was at the scene of crime on the fateful date, he distanced himself from the offence charged, He expounded that, he was a former ten-cell leader of Shinyanga hamlet from 2015 to 2021. That, he had never quarreled with the deceased. On the fateful date, some of his in-laws (Shigala John Ndaki, Masanja Homo and Nkuba) together with other villagers approached and informed him about the murder incident of his mother-in-law. That, he phoned PW3 and they went to the scene of crime. At the scene, he interrogated the first appellant who had been arrested, but could not respond as he was severely beaten. That, having asked his in-laws as to why they had beaten the said suspect to that extent, they became angry and started beating him until he became unconscious. That, he became conscious later at Chunya Hospital. He thus challenged the evidence of PW2, PW3 and PW4 that they gave untrue story before the trial court. He also denied to know Mussa Igosha and the first appellant prior to the incident. However, at the end of it all, the trial court relied on the testimony of PW4, the prosecution eye witness at the scene of crime whose evidence was corroborated by PW1, PW2, PW3, PW5 and PW6. In addition, the learned trial Judge relied on the oral and documentary confessions by the appellants and found that the charge against them was proved to the hilt. Thus, the appellants were found guilty, convicted and sentenced as indicated above. Dissatisfied, the appellants are now before the Court challenging the decision of the trial court. It is noteworthy that, on 24th June, 2024 and 24th September, 2025, the appellants lodged two memoranda of appeal comprising five and seven grounds of appeal, respectively. When the appeal was placed before us for hearing, the appellants were represented by Messrs. Felix Kapinga and Loth Joseph Mwampagama, both learned advocates. At the outset, Mr. Kapinga prayed to abandon the original memorandum of appeal lodged on 24th June, 2024 and intimated that they would only argue the grounds of appeal indicated in the memorandum of appeal lodged on 24th September, 2025. The said grounds can conveniently be paraphrased as follows: First, the case against the appellants was not proved to the required standard; second, the visual identification of the appellants at the scene of crime was not watertight to avoid all possibilities of mistaken identity and the identification parade was not conducted; third, the first appellant's oral confession at the scene of crime was un-procedurally procured as he was under threat and not a free agent; fourth, that, the prosecution case was based on suspicious; fifth, failure by the prosecution to summon material witnesses; sixth, the cautioned statement by the first appellant was illegally procured; and finally, the appellants' defence evidence was not considered. 8 Mr. Kapinga intimated that, he would argue the first, second, third and sixth grounds conjointly, while his colleague, would argue the fourth, fifth and seventh grounds conjointly. On the adversary side, the respondent Republic entered appearance through Ms. Mwajabu Tengeneza, learned Principal State Attorney assisted by Mses. Ellen Masululi and Veronica Mtafya, both learned Senior State Attorneys. At the outset, Ms. Tengeneza declared the stance of the respondent of opposing the appeal. She also intimated that, it was Ms. Mtafya who would respond to the grounds of appeal, as proposed by Mr. Kapinga. We shall therefore determine the grounds of appeal, in the same manner proposed by the learned counsel for the parties. However, before doing so, it is crucial to state that, this being the first appeal, it is in the form of a re-hearing, therefore, the Court, has a duty to re-evaluate the entire evidence on record by reading it together and subjecting it to a critical scrutiny and if warranted, arrive at its own conclusion of fact - see D.R. Pandya v. Republic [1957] EA 336 and Demeritus John @ Kajuli & 3 Others v. Republic, Criminal Appeal No. 155 of 2013 (unreported). Starting with the first, second third and sixth grounds, Mr. Kapinga argued that the prosecution failed to prove the case against the appellant to the required standard. He faulted the learned trial Judge for having relied on the appellants' oral confession and exhibit P3 together with testimonies of PW2, PW3, PW5 and PW6 who were unreliable witnesses. To clarify on this point, Mr. Kapinga referred us to page 45 of the record of appeal, where PW5 testified that, they left with the suspects to Lupa Police Post and thereafter to Chunya Police Station where they arrived on 27th May, 2021 at around 08:00 hours and recorded their cautioned statements. While, at page 50 of the same record, PW6 testified that, he recorded the cautioned statement of the first appellant on 27th May, 2021 from 09:00 hours to 11:18 hours. He argued that, it is not clear as to whether exhibit P3 was recorded at Lupa Police Post by PW5 and or at Chunya Police Station by PW6. That, taking into account the distance from Lupa Police Post to Chunya Police Station, it raises doubts which should be resolved in favour of the appellant. It was his further argument that, even the appellants' oral confession before PW2, PW3 and PW5 was illegally procured under threat, as appellants were seriously beaten by the villagers and militiamen. To support his proposition, he cited the cases of Jackson Protaz v. Republic, Criminal Appeal No. 385 of 2020 [2021] TZCA 705 and Denis Geraz v. Republic, Criminal Appeal No. 10 of 2023 [2025] TZCA 196. On visual identification, Mr. Kapinga argued that, the visual identification of the appellants at the scene of crime, which was relied 10 upon by the trial court to convict them was not watertight to avoid any possibilities of mistaken identity. He argued that PW4, the only prosecution's eye witness at the scene of crime, though, testified that he knew the second appellant as his uncle and that, he managed to identify him with the aid of solar lights, did not explain its intensity, the size of the area illuminated and the duration of the incident. He contended that, since the incident happened at night under unfavorable conditions, including the terrifying situation obtained at the scene, all conditions of visual identification ought to have been met. He also added that, the evidence of the prosecution witnesses was contradictory on the source of lights illuminated at the scene of crime. That, while PW4, mentioned only the solar lights, PW2 and PW3 testified that, there was solar lights and moonlight. PW5, on the other hand, testified that, there was moonlight and fire. According to him, the pointed-out contradictions had created doubts in the prosecution case which was also supposed to be resolved in favour of the appellants. Based on his submission, he concluded that the prosecution case was not proved to the required standard. On the fourth, fifth and seventh grounds, Mr. Mwampagama, argued further that although, in their testimonies, PW2, PW3 and PW5 testified that at the scene there were many people who assembled to render 11 assistance, none of the said people was summoned to testify before the trial court to shed more lights on what transpired on the fateful date to clear some of the doubts. He also argued that, although, in his testimony, PW5 testified that he recorded the cautioned statement of the second appellant, the same was not tendered in evidence. That, to make matters worse, even the stick and the knife alleged to have been used to kill the deceased were not tendered in evidence as exhibits. He equally wondered as to why, the learned trial Judge did not draw adverse inference on the prosecution side for such omission. To support his proposition, he cited the case of Aziz Abdallah v. Republic [1991] T.L.R. 71. He then urged us to allow the appeal, quash the conviction and set aside the sentence imposed on the appellants and set them at liberty. In her response to the first, second, third and sixth grounds, Ms. Mtafya challenged the submission made by Mr. Kapinga by arguing that the case against the appellants was proved beyond reasonable doubt. She stated that, in convicting the appellants, the learned trial Judge relied on their own oral confessions before PW2, PW3 and PW5 together with the first appellant's cautioned statement which clearly narrated on how they were both involved in the killing of the deceased. She added that, the said statement was recorded in accordance with the law. To justify her 12 argument, Ms. Mtafya referred us to page 72 of the record of appeal, where the first appellant testified that, upon being arrested, they did not stay long at Lupa Police Post, as they were immediately, taken to Chunya Police Station. That, PW5 also, at page 45 of the same record testified that, they arrived at Chunya Police Station at 08:00 hours and PW6 started to record the first appellant's cautioned statement at 09:00 hours to 11:18 hours. She thus urged us to find that the appellants complaint on that aspect is unfounded. On the appellants' visual identification at the scene of crime, Ms. Mtafya also challenged the submission made by Mr. Kapinga by referring us to page 40 of the record of appeal where PW4 testified that, he knew the second appellant all the time as his uncle. That, even the second appellant himself at pages 75 of the same record admitted to that fact, as he testified that the deceased was his mother in-law. It was therefore the submission of Ms. Mtafya that, since PW4 and the appellant were familiar to each other prior to the incident and taking into account that at the scene there was solar and moonlights which illuminated the whole area, there was no doubt that the second appellant was positively recognized by PW4. She also added that, taking into account on how the first appellant was arrested and led PW2 and her team to the scene of crime, issues of mistaken identity and or 13 contradictions on the source of the lights could not be raised, To support her argument, she cited the case of John Makuya v. Republic, Criminal Appeal No. 62 of 2022 [2022] TZCA 264. She then urged us to find that, the first, second, third and sixth grounds are devoid of merit. As for the fourth, fifth and seventh grounds, on the failure by the prosecution to summon the people mentioned by PW2, PW3 and PW5, she argued that the burden of proof in criminal cases lies squarely on the prosecution shoulders and the standard has always been proof beyond reasonable doubt. She cited section 152 of the Evidence Act, Chapter 6 of the Revised Laws and argued that, the said law does not require a specific number of witnesses to prove a fact, what is required is the quality of evidence and credibility of witnesses. She then insisted that, in the instant appeal, the prosecution case was proved beyond reasonable doubt through the evidence of PW4 the prosecution eye witness at the scene of crime, who clearly narrated what transpired at the scene. That, the evidence of PW4 was corroborated by PW1, PW2, PW3, PW5 and PW6. H ie prosecution evidence was also corroborated by the oral and documentary confessions of the appellants themselves. That, having established its case against the appellants, the prosecution 14 found it unnecessary to summon other witnesses and or tendering other exhibits. She thus urged us to find that the fourth, fifth and seventh third grounds are devoid of merit and dismiss the appeal in its entirety. In his brief rejoinder, Mr. Mwampagama reiterated their earlier submissions and stressed that the prosecution case was not proved to the hilt. He thus, once again, urged us to allow the appeal and set the appellants free. Having closely considered the contending arguments by the learned counsel for the parties and re-evaluated the entire evidence on record, we find that, the visual identification of the appellants at the scene of crime, is a straight forward issue, as in their evidence, both, PW4 and the second appellant clearly indicated that they knew each other very well prior to the incident. For instance, in his evidence found at page 40 of the record of appeal, PW4 testified that: "...It was 19:00 hours, when she was beaten , we were eating outside. There was solar tight There came three people when we started eating. They asked for my father. They were toid that he went to Baiia. One was my unde Nyamajanhanga. The rest I did not know them. I identified Nyamajanhanga. The other people one had black jacket and the other has sweater... After being told that my father is not around\ they left. While 15 we were eating, the two of the people returned to our home. They beat my grandmother. I recognized them by their clothes when they came back. " [Emphasis added]. On his part, the second appellant, at page 50 of the same record, admitted that, he was related to the deceased as she was his mother- in-law. Again, PW5 at page 45 of the same record, testified that, "...after investigationr I realized that Nyamajanhanga, one of the accused persons, is a relative to the deceased's family... The relationship is that, the children of Yungi are in-laws to Nyamajanhanga." From the above extracts, it is clear that, there was no dispute that the second appellant was familiar to PW4, prior to the incident, as he is his uncle. The appellant himself admitted to those facts. In Nicholaus James Urio v. Republic, Criminal Appeal No. 244 of 2010 [2012] TZCA, the Court quoted with approval the decision of the Court of Appeal of Kenya in Kenga Chea Thoya v. Republic, Criminal Appeal No. 375 of 2006 (unreported) where it was stated that: "On our own evaluation of the evidence, we find this to be a straightforward case in which the appellant was recognized by witness PW1 who knew him. This was dearly a case o f recognition rather than identification. It has been observed severally by this Court that recognition 16 is more satisfactory, more assuringand more reliable than identification o f a stranger." We made corresponding remarks in Athumani Hamis @ Athuman v. Republic, Criminal Appeal No. 288 of 2009 [2012] TZCA 303 and Masamba Musiba @ Musiba Masai Masamba v. Republic, Criminal Appeal No. 138 of 2019 [2021] TZCA 270. Similarly, in the case at hand, in view of the evidence of PW4 which was corroborated by PW5 and the second appellant himself, we are settled that, this is a dear case of recognition rather than identification as both, PW4 and the second appellant knew each other very well prior to the incident. We therefore agree with Ms. Mtafya that, since PW4 and the second appellant were familiar to each other prior to the incident and taking into account that at the scene there was solar and moonlights lights which illuminated the whole area, issues of mistaken identity and or contradictions on the source of lights are not justified. Therefore, having made our finding that, the second appellant was positively recognized by PW4 at the scene and taking into account that the first appellant, was arrested at the proximity to the deceased's home, confessed to have committed the offence and led the team to the scene of crime, issues of mistaken identity could not be raised. At page 118 of the record of appeal, the learned trial Judge, having considered this matter, concluded that: "The fact that the 1st accused was arrested in the proximity o f the scene of crime, and given the fact that PW4 identified him before and during the attack o f the deceased with the help o f the solar lights and moonlight, and he managed to identify the accused in the dock describing the clothes he put on, which was corroborated by PW2 and PW5 which was not denied by the defence, I am convinced that the accused was not mistaken." In the circumstances, we also see no reason to fault the learned trial Judge conclusion on this matter. On that basis, we find the first, second third and sixth grounds of appeal devoid of merit. On the fourth and fifth grounds, it is clear to us that, in convicting the appellants, the learned trial Judge relied mostly on the evidence of PW4 which was corroborated by PW2, PW3, PW5 and PW6 together with the confessions by the appellants themselves. This can be evidenced at page 120 of the record of appeal, where the learned trial Judge concluded that: "The confession they made before the villagers, before the chairperson o f Shinyanga Hamlet and the cautioned statement o f the 1st accused are corroborating to each other. The connection brings home the principal offender 18 and common intention...This is in line with the testimony o f PW3 where the 1st accused insisted the 2n d accused to teii the truth about the murder. He said, Kindo we are caught Teii them the truth that you are the one who brought me" Then ; Nyamajanhanga (2n d accused) confessed to have procured the killers...The evidence adduced has shown that the 2n d accused procured the 1st accused to kill the deceased on reason that she was bewitching him..." In the circumstances, we agree with Ms. Mtafya that the oral and documentary confession by the appellants was properly relied upon by the learned trial Judge to mount their conviction. We are increasingly of the view that, the above facts together with the first appellant's conduct of running away from the deceased's home after having seen PW2 and her team, proved beyond reasonable doubt that he had guilt mind. In the case of Rashid Mtanga Ahamadi v. Republic, Criminal Appeal No. 249 of 2008 [2011] TZCA 139, upon being faced with an akin situation on the conduct of a running away person who had been suspected to have committed an offence, the Court stated that: "In the instant case, we are satisfied that the appellant's conduct o f running awayjust after he saw PW1 and PW3, is related to his guilty conscience to the act he committed to PWL Such conduct is inconsistent with innocence." 19 Likewise, in the current appeal, the conduct by the first appellant of running away after being stopped by PW2 at the proximity to the deceased's home, signified his guilty conscience on the unlawful acts he committed towards the deceased. That said, and being guided by the above authorities, we go along with Ms. Mtafya's submission that the appellants' complaint on the finding of the learned trial Judge, is not justified. On the failure by the prosecution to summon the people mentioned by PW2, PW3 and PW5, who were alleged to be at the scene of crime, as well as failure to tender the second appellant's cautioned statement and the weapons used to kill the deceased, we wish to state that, as correctly argued by Ms. Mtafya, the burden of proof in criminal cases lies on the prosecution shoulders and the standard is proof beyond reasonable doubt. Therefore, the prosecution was at liberty to bring only those witnesses who could advance their case regardless of the number - see section 152 of the Evidence Act. What is required is the quality of evidence and the credibility of the witnesses. We emphasized this position, in several decisions of this Court. See for instance, the cases of Yohanis Msigwa v. Republic [1990] T.L.R. 148 and Hassan Juma Kanenyera v. Republic [1992] T.L.R. 100. That said, we equally find the fourth and fifth grounds of appeal devoid of merit. We are mindful of the fact that, on the last ground of appeal, the appellants challenged the finding of the learned trial Judge contending that their defence evidence was not considered. Having perused the record of appeal, we find that the appellants' complaint is not supported by the record. It is apparent at pages 117 to 121 of the record of appeal that the learned trial Judge adequately considered and weighed the appellants' defence against the prosecution case but rejected it for being incapable of weakening the prosecution case. Specifically, at pages 118 to 119 of the record of appeal, the learned trial Judge, having considered the appellants' defence observed that: "...in his defence , the 1st accused alleged that from the severe beating he received from the villagers, he collapsed and became unconscious. He contradicted himself that, when they were taken to Lupa Police Post they did not stay longer, they were taken to Chunya Police Station. This shows that, the 1st accused person is not consistent in his defence to shake the evidence of the prosecution witnesses. How a person who was unconscious could know that they did not take longer at Lupa Police Post? This contradiction is at his own peril." Again, for the defence of the second appellant, the learned trial Judge observed, at page 119 of the same record that: "DW2 continued to defend himself by stating that, he was unconscious from the time he was beaten by his in-laws at the scene and regained his conscious at Chunya Hospital...yet he testified that he was beaten by police officers forcing him to sign the cautioned statement That, he was beaten at Lupa and Chunya Police Station also...How can a person be unconscious and still be beaten and forced to sign a cautioned statement to the extent o f breaking his arm? He did not tender any evidence to show the same, in order to shake the credibility o f the prosecution witnesses." Having considered the above extracts on the learned trial Judge's observations and finding, we agree with Ms. Mtafya that, the appellants' criticism of the learned trial Judge is, with respect, without any justification. As such, we also find the seventh ground of appeal with no merit. In the light of the foregoing, and looking at the totality of the evidence, we entertain no doubt that with the available evidence, the trial court properly held that the case against the appellants was proved beyond reasonable doubt. 22 Consequently, we find no merit in the appeal and we hereby dismiss it in its entirety. DATED at DODOMA this 26th day of March, 2026. R. J. KEREFU JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL D. J. NANGELA JUSTICE OF APPEAL The Judgment delivered this 26th day of March, 2026 via video conference in the presence of the Appellants in persons, Ms. Mwarabu Tengeneza, learned Principal State Attorney for the Respondent, and Ms. Christina Mwanandenje Court Clerk is hereby certified as a true copy of the original. 23