Ndekelo Jidai vs Republic (Criminal Appeal No. 76 of 2023) [2026] TZCA 348 (26 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA ( CORAM: MKUYE. 3.A.. RUMANYIKA. J.A. And AGATHO. J.A.^ CRIMINAL APPEAL NO. 76 OF 2023 NDEKELO JIDAI......................................................................APPELLANT VERSUS THE REPUBLIC ........................... ........................................RESPONDENT [Appeal from the Decision of the Resident Magistrate's Court of Mbeya, (Extended Jurisdiction) at Mbeya] (Ntumo. SRM - Ext. Juris.1 } dated the 30th day of November, 2022 in Criminal Sessions Case No. 48 of 2020 JUDGMENT OF THE COURT 2n d & 26th March, 2026. MKUYE. 3.A.: The appellant, Ndekelo Jidai was arraigned before the Resident Magistrate's Court of Mbeya at Mbeya (Extended Jurisdiction) for the offence of murder contrary to sections 196 and 197 of the Penal Code, Cap 16 R.E. 2002. It was alleged in the particulars of offence that on 16th March 2015 at Bitimanyanga Village, Chunya District in Mbeya Region, the appellant murdered one Pili d/o Kashinje. The brief background of the matter is as follows: i

On 13th March 2015, the appellant's grandson died under mysterious circumstances which led the appellant to suspect that witchcraft was involved. It was alleged that in the early hours of 16th March 2015, the appellant claimed to have heard the voice of the deceased grandson complaining to feel cold and asking to be given clothes. This reinforced the appellant's suspicion that certain villagers were responsible for the death of his grandson. On the evening of 16th March 2015 at about 7:00 p.m., the deceased was at her home in the company of one Limi Luchagula. It was the prosecution's evidence that a group of people, allegedly including the appellant arrived at the premises armed with pangas and sticks. Those people attacked the deceased and she sustained multiple cut wounds on the head, shoulders and hands. She died in the course of being taken to the hospital. PW1, Balele Maghai, a husband of the deceased, who was also invaded and injured severely testified that an alarm was raised and villagers mobilized themselves. The appellant was subsequently apprehended by members of the public and handed over to local authorities. Police officers including PW4, PW5 and PW6 visited the scene of crime. Dr. Morice Mdoe (PW3) conducted a postmortem examination on

the deceased's body and it was revealed that the cause of the deceased's death was severe hemorrhage due to injuries sustained on the head, shoulders and hands. The postmortem examination report thereof was admitted in evidence as Exh. PE 1. The appellant was taken at Lupatingatinga Police Station where a cautioned statement was recorded by PW5 confessing to have killed the deceased. PW5 also recorded the statement of Limi Luchagula (Exh. PE 3). In defence, the appellant denied the charge. He also denied knowing the deceased or her husband as he was new in the village and asserted that he never confessed anywhere. Upon a full trial, the trial court found the prosecution to have proved the case beyond reasonable doubt. The appellant was, thus, convicted and sentenced to death by hanging. Aggrieved with the conviction and sentence, the appellant has lodged two memoranda of appeal (substantive and supplementary) with a total of 11 grounds of appeal. The substantive memorandum of appeal consists of seven grounds which can be paraph razed as follows: one, there was material contradiction in the evidence of PW1 regarding the time when the offence was committed as between 13:30 p.m. and 19:00 hrs. Two, there was material contradiction between the evidence

of PW l's testimonies as to the time of appellant's arrest between 17/3/2015 at night or 09:00 a.m. as testified by PW2. Three, the identification of the assailant was not sufficient due to variance of light enabling identification as PW1 said there was a blazing fire in the kitchen and moonlight while at another stage he said there was no light. Four, it was not proper to rely on evidence of PW2 who said he interrogated the appellant who admitted killing the woman (deceased) while he was not sure if the so called confession was voluntary. Five, Exh. PE 1 was wrongly admitted in evidence as it contradicted with evidence of PW3 who said it was taken on 18/3/2015 while the statement shows it was taken on 23/3/2015. Six; the appellant's cautioned statement was taken by PW5 out of time prescribed under section 50 (1) of the Criminal Procedure Act, Cap 20 R.E. 2019. Seven, the statement of Limi Luchagula was wrongly admitted in evidence as PW6 who tendered it did not explain why the witness was not called to testify in court. The supplementary memorandum consists of four grounds of appeal as follow:

1. The prosecution failed to take the appellant to court as soon as practicable after arrest contrary to the requirement of law. 4

2. The conviction of appellant based on evidence of PW6 and Exh. PE 2 which were not listed and read over during committal proceedings and plea taking,

3. The trial magistrate failed to consider the fact that cautioned statement of appellant (Exh. P2) was taken beyond the prescribed time.

4. The prosecution failed to prove its case beyond reasonable doubt. When the appeal was called on for hearing, the appellant was represented by Mr. Peter Jacob Kiranga, learned advocate whereas Mses. Naomi Mollel and Hannarose Kasambala, both learned Senior State Attorneys assisted by Ms. Veneranda Masai and Mr. Rajabu Msemo, both learned State Attorneys appeared representing the respondent Republic. When invited to elaborate the grounds of appeal, Mr. Kiranga learned advocate intimated to the Court that he will argue ground nos. 1, 2, 3, 4, 5 and 6 of the substantive memorandum of appeal together with ground no. 4 of the supplementary memorandum of appeal; then ground no. 7 of the substantive memorandum of appeal separately; and grounds nos. 1, 2 and 3 of the supplementary memorandum of appeal separately.

Regarding the 1s t ground of supplementary memorandum of appeal the appellant's complaint is on the delay in arraignment of the appellant in court. It was argued that though the offence was committed on 16/3/2015 and appellant arrested on 17/3/2015 he was not arraigned in Court until on 7/6/2019 which is after four years without any reason advanced to show why he was not arraigned in court as soon as practicable. To fortify his argument, he referred us to the case of Duma Ilindilo Pangalasi v. Republic [2024] TZCA 990, whereby the Court set the appellant free after being satisfied that he was delayed to be taken to court for 25 days. He thus, implored the Court to allow this ground and release the appellant from custodial sentence since the delay was more than four (4) years. In relation to ground nos. 2 and 7 of the supplementary memorandum of appeal and substantive memorandum of appeal respectively, Mr. Kiranga argued that PW6 was not listed during committal proceedings in contravention of section 263 of the CPA. Neither was his statement read over in court nor listed in proceedings. He added that the same also happened during plea taking and preliminary hearing. Instead, he argued, PW6 was called, without any notice of calling him as an additional witness as per section 308 of the CPA, to tender the statement of Limi Lichagula who was not brought to court to testify. While referring to the cases of Remina Omary Abdul 6

v. Republic [2022] TZCA 118; and Mgaya Nyanokwe Marwa v. Republic, [2025] TZCA 1004, he urged the Court to expunge PW6's evidence together with the statement of Li mi Lichagula (Exh. P3). Concerning ground no. 3 of the supplementary memorandum of appeal that the cautioned statement (Exh. PE2) was recorded beyond the prescribed time contrary to section 51 (1) of the CPA, it was Mr. Kiranga's argument that the same was taken out of time. He pointed out that, though the appellant was arrested on 18/3/2015, the cautioned statement was record on 19/3/2015. He, thus, prayed to Court to disregard it. As regards ground no 4 of the supplementary memorandum of appeal covering grounds nos. 1, 2, 3, 4 and 5 of the memorandum of appeal, that the case against appellant was not proved beyond reasonable doubt, Mr. Kiranga submitted that the prosecution failed to discharge its duty. He pointed out that the trial Senior Resident Magistrate (Ext. Jur.) relied on the evidence of PW6, Exh. PE 2 produced in court and the statement of Limi Lichagula (Exh. P3) in convicting the appellant. He added that, the trial court relied on evidence of PW2 and PW6, PW2 being the Village Executive Officer who testified that appellant confessed to him to have committed the offence (though he admitted that appellant was brought to him while tied with ropes) and 7

PW6 being the witness who was not listed during committal proceedings and the exhibit he tendered. He said, if the PW6's evidence and Exh. P3 are expunged, there remains no other evidence to prove the case beyond reasonable doubt. In the circumstances, therefore, Mr. Kiranga, beseeched the Court to allow the appeal and set the appellant free. On his part, Mr. Msemo declared their stance that they supported the appeal. He conceded that appellant was arraigned in court on 7/6/2019, 4 years after his arrest on 17/3/2015 and no explanation was given for such delay. He added that this was in contravention of section 33 of the CPA requiring accused to be arraigned in court within 24 hours or as soon as practicable. To him the period of 4 years was not reasonable. Regarding reliance of PW6 and Exh. P3, he said it was wrong to do so as PW6 was not listed during committal proceedings and the statement of Limi Lichagula which he recorded was also not listed during committal proceedings so that it could be read over in court. He contended that, as Limi Lichagula could not be found to be called as witness, the trial court advised the prosecution to file a notice of calling additional witness however, that was not done instead the said statement was tendered and wrongly admitted as Exh. PE 3. Mr. Msemo, therefore, urged the Court to find merit in this ground of appeal.

As to ground no. 3 of supplementary memorandum of appeal that the appellant's cautioned statement was taken out of time, he contended that the same was recorded on 19/3/2015 at 08:00 a.m. while he was arrested on 17/3/2015. He argued that, much as the same was admitted in evidence after having conducted a trial within trial, it cannot stand as it was also not listed during committal proceedings as among the intended prosecution exhibit. Mr. Msemo urged the Court to expunge it from the record. Concerning the grounds of appeal relating to the proof of the case covering ground number 4 of the supplementary memorandum of appeal and grounds no. 1, 2, 3, 4 and 5 of the substantive memorandum of the appeal, Mr. Msemo, like Mr. Kiranga contended that the appellant's conviction based on evidence of PW6, statement of Limi Lichagula (Exh.3) and appellant's cautioned statements which had shortcomings as itemized by Mr. Kiranga. He, thus, joined hands with Mr. Kiranga that the appeal be allowed and the appellant be set free from custodial sentence. Having considered the unopposed appeal, we think, this matter can be disposed of on the following issue, that is whether the prosecution proved its case beyond reasonable doubt. In tackling this issue, we shall begin with a sub issue relating to delay in arraignment of

appellant in court. We hastily agree with both counsel that the appellant was delayed to be taken to court after being arrested. The record is quite clear as was argued by both counsel that the appellant was arrested on 17/3/2015, a day after the offence was committed but he was arraigned for the first time in court on 7/6/2019 which was a delay of about four (4) years. There was no explanation offered by as to why there was such a delay and what was he doing in such a long period from when he was arrested. It is also not known as to where he was. Section 33 (2) of the CPA is quite clear that where any person has been in custody for an offence punishable with death, such person must be brought before the court as soon as practicable after being taken into custody. In the case of Duma Ifindilo Pangalas (supra) referred to us by Mr. Kiranga, the Court considered the delay in arraignment of appellant for a period of 25 days and found that the unexplained delay of 25 days complained of by the appellant and not objected by the respondent, raised doubt to the prosecution case which amounted to violation of the law and procedure and thus entitling the Court to interfere with the concurrent findings of the two lower courts. The Court eventually set the appellant free. 10

We think, the instant case falls within all fours with the above cited authority. The appellant was delayed to be taken to court from 17/3/2015 when he was arrested until on 7/6/2019 when he was arraigned in court. No explanation was given by the prosecution as to why he had to be so delayed, where he was during such period and what he was doing. We think, this delay did not only vitiate the proceedings but it prejudiced the appellant due to the clear violation of section 33 (2) of the CPA. We, therefore, find merit on this ground of appeal and allow it. With regard to the complaint that PW6 was not listed during committal proceedings and the statement of Limi Lichagula tendered as Exh. PE 3 has no effect, we equally agree with the submissions by both counsel. The basis of this complaint is that the evidence of PW6 and Exh. P3 were heavily relied upon in convicting the appellant. Our starting point would be on section 246 (2) now section 263 (2) of the CPA which requires the court conducting preliminary inquiring on a case, to read the information and contents of statements of the intended prosecution witnesses and intended documentary exhibits to enable the accused understand the contents of such documents. Apart from that, the said committal court is required to list the intended prosecution witnesses to whom the statements have been read over and ii

of the defence witness together with such documentary exhibits. See also: Remina Omary Abdul (supra). In this case, the Exh. P3 that was admitted is challenged as it was tendered by PW6 who was not listed during committal proceedings. It should be noted that in committal proceedings, the court is required to list the intended prosecution witnesses and to read and explain the contents of the documents before listing them as intended documentary and or physical exhibits intended to be relied upon by the prosecution. Our perusal of the record of appeal has revealed that PW6 who tendered Exh. P3 was not among the listed intended prosecution witnesses. Much as the Exh. P3 was read out and listed as intended prosecution exhibit, it was tendered by a witness who was neither listed nor brought as an additional witness under section 308 of the CPA. As such PW6's evidence had no evidential value and we hereby expunge it. It should also be emphasized here that, the effect of expunging PW6's evidence is to render Exh. P3 that was tendered by him to have no evidential value. It is also expunged from the record of appeal. In view of that, we find merit in this ground and allow it. We note that, the other evidence that was relied upon in convicting the appellant was the appellant's cautioned statement 12

tendered by PW5 F.3661 D/SSgt Mohamed as Exh. P2. However, the said Exh. P2 is challenged for having been recorded out of time. Section 50 (2) of the CPA, now section 51 (2) of the CPA provides for a time within which a cautioned statement of an accused under restraint can be recorded to be within 4 hours after being restrained. According to the record of appeal, and as per PW1 testimony, the appellant was arrested on 17/3/2015 following a "mwano" literally translated "an alarm" raised at night. PW5 testified that the appellant was arrested on 17/3/2015 by citizens and handled to the police on 18/3/2015. Hence, his statement was recorded on 19/3/2015. Although the objection was raised against admission of the said cautioned statement the same was overruled allowing its admission as Exh. P2. Much as PW5 attempted to explain the reason for the delay, but he did not explain the distance covered from where he had been arrested to Lupatingatinga police station where his statement was recorded in order to justify the delay in recording it. At any rate, PW5 also when under cross examination admitted that they erred to record the statement out of time. (See: page 47 of the record of appeal). This however, was not the only anomaly in relation to the cautioned statement. As was submitted by the learned counsel it suffered the ailment of being not listed and read out during committal 13

proceedings. We agree with both learned counsel that, that is the position, as we were also unable to glean in the record of appeal where the same was listed as an intended prosecution exhibit. Neither was it read over. We, thus, hereby expunge it from the record. We now move to answer the last issue whether the prosecution discharged its duty of proving the case beyond reasonable doubt while having in mind that the crucial evidence that was relied upon by the trial court to convict the appellant has been expunged. The follow up issue is whether after the expungement of the evidence of PW6 together with Limi Lichagula's statement (Exh. PE 3); expungement of the appellant's cautioned statement (Exh. P2) in which the appellant is alleged to have confessed, there remains other evidence which can sustain conviction. We do not think so. This is so because PW6 was the key prosecution witness relied upon to build up the case. There is also evidence of Faustine Chejo Suluba (PW2) a Kitongoji Chairperson and acting VEO by then whose testimony was on among others as shown at pages 36 - 37 of the record of appeal that, he interrogated the appellant and admitted killing the deceased (oral confession) after being told by a "mganga" that his child had been bewitched. However, the same witness at page 36 of the record of appeal stated that Ndeleko (appellant) and his son had been under arrest and tied with ropes. 14

We do not have any qualms with type of confession involved as the law is quiet settled that oral confession is admissible and can be sufficient to ground a conviction against the accused person - See: Mabala Masasi Mongwe v. Republic, Criminal Appeal No. 161 of 2010 (unreported). Also See section 3 of the Evidence Act; and Alex Ndendya v. Republic, [2020] TZCA 202. In the case of Patrick Sanga v. Republic [2010] TZCA 340, the Court deliberated on section 3 of the Evidence Act and stated that: "Under section 3 (1) (a), (b) (c) and (d) o f the Evidence Act, Cap. 6, a confession to a crime may be oral, written , by conduct, and/or a combination o f aii o f these or some of these. In short a confession need not be in writing and can be made to anybody provided it is voiuntariiy made ." Besides that, the Court in the case of Mohamed Manguku v. Republic, Criminal Appeal No. 194 of 2004 (unreported), emphasized that oral confession would be valid if the suspect was a free agent when he gave such confession. In this regard, it does not matter if the said confession was made by a suspect to or in presence of a reliable person be it a civilian or not and may be sufficient to ground a conviction against the suspect. See: Posolo Wilson @ Mwalyego v. Republic [2018] TZCA 635.

In this case, going by the evidence of PW2, the appellant confessed to him to have killed the deceased after being told by a mganga that his child who had died few days ago had been bewitched. However, the same witness also stated that the appellant by then had been under restraint and he was tied with ropes. By any means, this controverts the factor enumerated in above authorities that in order for the oral confession to be valid it must be made by a suspect who is a free agent or rather it must be voluntarily made. In the circumstances under which the appellant was at the time of giving his alleged confession, it cannot be said that he was a free agent. Therefore, the so called confession do not qualify to be a confession to ground a conviction against the appellant. AH said and done, considering that the evidence of PW6 and Exh. P3 (statement of Limi Lichagula) who was eye witness; and the appellant's cautioned statement (Exh. P2) in which the appellant confessed the commission of the offence have been expunged from the record; also taking into account the purported oral confession has not met the criteria to be taken as a valid oral confession, we do not find any other evidence which can ground a conviction against the appellant. Compounded with the fact that the appellant was delayed to be arraigned before the court, we find that the prosecution failed to prove the case against the appellant beyond reasonable doubt. 16

In the upshot, we allow the appeal, quash the conviction and set aside the sentence meted out against the appellant. We further order for his release from custody forthwith unless otherwise held for other lawful reason (s). DATED at DODOMA this 24th day of March, 2026. R. K. MKUYE JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL Judgment delivered virtually this 26th day of March, 2026 in the presence of the Appellant in person, Ms. Imelda Aluko, learned State Attorney for the Respondent/Republic and Mr. Shafii Kassim, Court Clerk is hen 17