Abdul Juma Shomari & Another vs Republic (Criminal Appeal No. 95 of 2024) [2026] TZCA 350 (25 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA ( CORAM: MWANDAMBO, 3.A.. MWAMPASHI. J.A. And MLACHA J.A.^ CRIMINAL APPEAL NO. 95 OF 2024 ABDUL JUMA SHOMARI .......... .......................................... 1 st APPELLANT MRISHO ALLY MBEGU .............................................. ......2 nd APPELLANT VERSUS THE REPUBLIC ......... . ........................................................RESPONDENT (Appeal from the Decision of the High Court of Arusha, at Arusha) (BadeJ.) Dated the 12th day of December, 2023 in Criminal Session No. 3 of 2023 JUDGMENT OF THE COURT 17th February & 25th March, 2026 MLACHA, J.A.: The High Court of Tanzania sitting at Arusha in Criminal Sessions Case No. 3 of 2023 convicted Abdul Juma Shomari and Mrisho Ally Mbegu (the 1s t and 2n d appellants respectively) of murder contrary to sections 196 and 197 of the Penal Code, Cap 16 of the Revised Edition 2022. They were sentenced to the mandatory sentence of death by hanging.

Aggrieved, they have come before the Court challenging their conviction and sentence. The particulars attached to the charge were that the appellants with malice aforethought jointly and together did cause the death of Francis Herman on 03.05.2022 at CCM Sinoni area, within the City, District and Region of Arusha. Briefly stated, the evidence leading to the conviction of the appellants can be presented as follows. Fahim Mohamed Bakari (PW2), a member of the local community guards (locally known as Sungusungu) was in a patrol with other members of the group at Olmokea Street in an area known as Sinoni on 03.05.2022 at around 11:00 pm. They were in 2 groups which had a total of 8 people. Other members of his group were Francis Herman (the deceased), Lukumai and Joachim. They met people watching a football match. On peeping inside, they saw a person who turned to be the 1s t appellant chewing Khat. They decided to apprehend him. On seeing them approaching, he rose up and moved to the washrooms. They moved towards him and managed to put him under arrest. Suddenly, a mob of about 30 people came to his rescue to resist the arrest. They threw stones demanding his release.

The 1s t appellant managed to escape and ran away. The deceased and PW2 pursued him up to a CCM building nearby. The mob of people did not leave them alone. PW2 sensed danger and ran to hide himself. While at the hiding place described as being some 10 meters away, he saw the 2n d appellant holding the hands of the deceased from behind. Meanwhile, one Omary Kichwaa threw a knife which was picked by the 1s t appellant who used it to stab the deceased on the stomach. Omary picked it and stabbed the deceased again, while proclaiming that he could finish the entire group. PW2 witnessed all this while at the hiding place in a fracas which took about 45 minutes. He made a call to members of the second group seeking assistance. When they came close, they noticed that he deceased had been seriously wounded. It was now midnight. They picked a tricycle (Bajaji) and sent the deceased to Mount Meru Hospital where he was pronounced dead. ASP Gwakisa (PW1) was in office at that hour. While there, he received a phone call telling him that a member of the Community guards had been attacked. He deployed a team of police officers who included G 345 D/SGT Swedi Cuthbert Msuya (PW4) and moved to the scene of crime. After a short dialogue with people present at the scene, he got information that the community guard had died. He assigned PW4 to draw 3

a sketch map (Exhibit P2) and went to Mount Meru Hospital to see the dead body. He saw the dead body at the mortuary and started investigation to get the suspects. Following investigation which was conducted by A/Inspector Hamisi Alimbe Mponda (PW5), the appellants were arrested on 23.07.2022 and sent to the Police Station. They were sent to the District Court of Arusha at Arusha on 29.09.2022 and later committed to the High Court for trial. The defence of the 1s t appellant (DW1) was that he was at the area that night watching football when they were invaded by Community guards. He told the trial court that, there was a fight between community guards and some boys but he was not involved in the fight. Once the fight was over, he returned home to sleep. His evidence was supported by his mother, Farida Rashidi Mundi (DW2) who said that her son returned from the football match and slept. He did not get out. DW1 said that despite his lack of involvement in the fight, he was arrested on 20.07.2022 and sent to court on murder charges which he denied. The 2n d appellant denied being at the football match or at the scene of crime at any time in the day. Nevertheless, he was arrested on 24. 07. 2022 and implicated with the crime which he did not commit. He brought his mother, Hadija

Mrisho (DW4) to support the evidence that he did not go out on 03.05.2022 and remained at home. The High Court did not find doubt in the prosecution case. It rejected the defence of the appellants who were found guilty, convicted and sentenced as stated above. The appellants filed 2 memoranda of appeal; the original memorandum of appeal lodged on 24.06.2024 and the supplementary memorandum of appeal lodged on 10.02.2026 comprising a total of 19 grounds of appeal. But as it will be apparent soon, the appeal hinges on the supplementary memorandum which has 8 grounds which boil into one complaint; that, the case was not proved beyond reasonable doubt. Messrs. Fridolin Bwemelo and Silvester Kahunduka, learned Advocates, appeared for the 1s t and 2n d appellants, respectively whereas, Ms. Janeth Sekule and Mr. James Pallangyo, both learned Senior State Attorneys represented the respondent Republic. The two advocates teamed up together at the hearing making a joint submission for the appellants. Mr. Kahunduka took the lead focusing on four areas; one, failure to comply with sections 246 (2) of the Criminal Procedure Act (section 263 (2) of the CPA R. E. 2023); two, delay to arrest and prosecute the appellants; three, contradictions and inconsistencies in

evidence and; four, failure to call material witnesses. Mr. Bwemelo addressed the Court on identification of the appellants and credibility of witnesses which will be the fifth and sixth areas of complaint, respectively. On failure to comply with section 263 (2) of the CPA the attention of the Court was directed to three areas, one, that, the name of PW5 does not appear in the list supplied during committal proceedings making his evidence illegal before the court. Two, that, the record does not indicate that the statements of witnesses were read during committal proceedings. And three, that, there is no indication that Fahmi Mohamed who appears as witness No. 2 in the list supplied during committal proceedings is the one who gave evidence as PW2 with the name Fahimi Mohamed Bakari. He cited to us the case of Catherine Honorati v. CRDB Bank [2023] TZCA 17985 to support his contention that defects on names are fatal. Based on these shortcomings, Mr. Kahunduka urged the Court to expunge the evidence of prosecution witnesses from the record, quash the conviction and set aside the sentence imposed on the appellants. On the delay to arrest and prosecute the appellants, it was submitted by Mr. Kahunduka that, the crime was committed on 05.05.2022 but the appellants could not be arrested until 23.07,2022. Further, despite the fact that they were arrested on 23.07.2022, they

could not be sent to court up to 04.10.2022. The learned advocate contended that, the delay raise doubt in the prosecution case which should be resolved in favour of the appellants. Mr. Kahunduka invited the Court to examine the evidence of PW2 and PW3 to see the contradictions and inconsistencies which raise doubt in the prosecution case. Amplifying, he contended that the evidence of PW2 and PW3 differ on the place where the knife was applied. That, whereas PW2 said that he saw the 1s t appellant stabbing the deceased on the stomach, PW3 who conducted the autopsy, did not find a wound on the stomach. PW3 said that the deceased was stabbed on the left thigh and on the waist at the right hand side. He contended that these contradictions are material raising doubt in the prosecution case. On failure to call material witnesses, Mr. Kahunduka submitted that, the evidence of PW2 suggests that the commission of the crime was witnessed by many people but only PW2 was brought to prove that the appellants were the ones who stabbed the deceased. He contended that all the people in attendance were material witnesses and there was no reason to summon PW2 alone. He argued that, omitting to call other people without explanation raises doubt in the prosecution case. 7

Mr. Bwemelo addressed the Court on identification of the appellants. It was his submission that, the crime was committed during the night in a crowded place so PW2 was supposed to give a clear description of the appellants to avoid mistaken identity. He contended that, the evidence of PW2 does not contain a description of the physique of the appellants, colour of their clothes and the way he could identify them out of the crowd. He argued that the identification given by PW2 fell short of the standards given in the case of Waziri Amani v. Republic [1980] TLR 250 followed in a number of decisions of this Court including Trazia Evarist @ Deusdedit Aron v. Republic [2021] TZCA 697, He urged the Court to make a finding that there was no proper identification of the appellants at the scene of crime. On credibility of witnesses, it was submitted by Mr. Bwemelo that, based on the contradictions in the evidence of PW2 and PW3 as intimated above, the Court should make a finding that these witnesses were not credible and discount their evidence. As they were the only witnesses who gave evidence connecting the appellants with the crime, he urged the Court to make a finding that there was no evidence to prove the offence and set the appellants free. In reply, Ms. Sekule conceded that the evidence of PW5 was received wrongly because his name was not listed in the list of witnesses 8

presented during committal proceedings. She urged the Court to expunge it. She also admitted that the Magistrate who made the committal order, recorded that the list of witnesses and exhibits was read to the appellants instead of recording that the statements of witnesses were read to the appellants but hastened to say that the defect is not fatal to the proceedings. She associated it with a slip of the pen. In the alternative, she submitted that, in the event the Court will find it to be fatal, the remedy should be to nullify the proceedings and judgment and remit the case for a fresh committal. She argued that a retrial will not jeopardize the appellants because the evidence on record is overwhelming. On the change of name from Fahim Mohamed to Fahim Mohamed Bakari, Ms. Sekule submitted that Bakari is the third name of Fahim. She contended that, both Fahim Mohamed and Fahim Mohamed Bakari carry the same address of Sinoni Arusha showing that it is the same person. She distinguished the case of Catherine Honorati v. CRDB Bank (Supra) from this case saying what was done in this case was merely adding a third name, unlike in Catherine Honorati where there was a complete change of names. On delay to arrest and prosecute the appellants, Ms. Sekule admitted that there was a delay in arresting the appellants but argued that it was caused by the fact that the appellants had run away after the

commission of the crime as deponed by PW4 at page 50 of the record of appeal. As to why they could not be taken to court earlier, she submitted that the prosecution needed to complete the investigation given the seriousness of the offence. She contended that, it is not known how the delay affected the appellants making the complaint baseless. On contradictions between the evidence of PW2 and PW3, Ms. Sekule admitted that there was such a contradiction but contended that it was not fatal because the thigh and stomach are places which are close to each other. She cited to us our decision in Trazia Evarista @ Deusdedit Aron (supra) to support her contention that, minor contradictions can be disregarded. On failure to call material witnesses, Ms. Sekule cited to us the provisions of section 152 of the Tanzania Evidence Act as her authority that there is no specific number of witnesses required in proving a fact. She contended that, even one witness can prove a fact adding that, the evidence of PW2 was enough to prove that the appellants stabbed the deceased. On identification of the appellants, Ms. Sekule submitted that there was bright light from the nearby Church and the Shops allowing a proper identification. She admitted that there was no description of the appellants 10

but contended that this was not fatal because PW2 knew them. She went on to submit that, the trial court did not error in believing the evidence of PW2 because he was reliable and his evidence did not have any material contradictions. When she was engaged by the Court further, she admitted that PW2 made the identification from the hiding place, where he had gone to save his life; 10 meters away, but maintained that he could see what was happening in the crowd of people. Mr. Kahunduka made a rejoinder and reiterated their earlier position. He insisted that the contradiction in the evidence of PW2 and PW3 on the place where the deceased was stabbed is not minor. He added that the evidence did not show a proper identification of the appellants. We had time to examine the record of appeal and consider the rival submission of the learned counsel. Our discussion will follow the trend of the submissions of the parties. Having considered the submission of the learned counsel and the position of the law, we agree with the learned counsel that, the evidence of PW5 was received irregularly because his name is not in the list of prosecution witnesses presented during the committal proceedings appearing at page 11 of the record of appeal. As there was no notice of additional witness lodged in terms of section 309 (1) and (2) of the CPA n

the evidence was illegally recorded and must be expunged. See our decision in Masamba Musiba @ Musiba Masai Masamba v. The Republic, [2021] TZCA 270 where it was stated: "It flows from the above provision o f the iaw that in a trial before the High Court, no witness whose statement or substance o f evidence was not read at the committal proceedings shall be paraded by the prosecution at the trial unless a reasonable notice in writing is issued to the defence side o f its intention to do so". [Emphasis supplied] See also: Ramadhani Mashaka v. Republic [2016] TZCA 259 and Remina Omary Abdul v. Republic [2022] TZCA 118. The evidence of PW5 is thus expunged from the record. On the complaint that the District Court did not read the contents of the evidence contained in the statements of witnesses as required by the law, we find it apposite to reproduce in extenso the provisions of section 273 (1) and (2) of the CPA. It reads as follows: "273 (1) upon receipt o f the copy o f the information and the notice, the subordinate court shall summon the accused person from remand prison or if not yet arrestedorder his arrest and appearance before it and 12

deliver to him or to his counsel a copy o f the information and the notice o f trial delivered to it under subsection (7) o f section 245 and commit him for trial by the court; and the committal order shall be sufficient authority for the person incharge o f the remand prison concerned to remove the accused person from prison on the specified date and to facilitate his appearance before the court. (2) upon appearance o f the accused person before it, the subordinate court shall read and explain or cause to be read to the accused person the information against him as well as the statements or documents containing the substance o f the evidence o f witnesses who the Director o f Public Prosecutions intends to call at the trial ." [Emphasis supplied] The requirement of reading the statements of witnesses is contained in subsection (2), The use of the word shall suggest that it is mandatory. It follows that the statements must be read to the accused person as a matter of right. Once that is done, the Magistrate must make an endorsement on record showing that the statements were so read. In the case at hand, the Magistrate wrote the following at page 12 of the record of appeal: 13

'CERTIFICATION I hereby certify that the abo ve list o f intended witnesses and exhibit read over ioudiy in court and expiained to the accused persons in language understand (sic) to them. This is contrary to section 246 (1) and (2) o f the CPA R. £ 2022." [Emphasis supplied] Instead of certifying that the statements or documents containing the substance o f the evidence o f witnesses have been read to the accused person , he certified that the iist o f witnesses and exhibits have been read to the accused person . The issue is whether this was fatal. Having examined the record closely, we join hands with Ms. Sekule that, this was a slip of the pen which is not fatal to the proceedings. We share this view because despite the anomaly, the Magistrate signed under the certificate citing the relevant provisions. The complaint is thus dismissed. Next is the delay in arresting and prosecuting the appellants. PW4 said at page 50 of the record of appeal that the appellants disappeared after the commission of the crime. The Police had to make a search which took 2 months. The delay to arrest the appellants was thus justified. The delay in prosecuting the appellant was also justified given the seriousness of the crime and the circumstance under which it was committed. The 14

deceased was stabbed by a knife in a fracas involving 30 angry boys. It was thus correct, in the circumstance of this case, to hold them back to give room for investigation. Further, as correctly submitted by Ms. Sekule, there is no evidence that they were jeopardized by the delay because the charges were eventually read to them and their pleas were taken. They could hear the prosecution witnesses and cross examine them. They also had a chance to defend themselves. See our decision in Eliapenda Zephania v. Republic [2024] TZCA 728 where we stated that delay to send an accused to court has no bearing in the criminal trial though can be a basis for a civil suit where proved. The complaint is thus baseless and dismissed. We will now move to examine the contradictions. Admittedly, parties agree that the description of PW2 and PW3 on the place where the wounds were inflicted differ. The description of PW2 appearing at page 35 of the record of appeal was as follows: "So, a/i o f a sudden■ , Mrisho came forth and grabbed the hands o f the deceased from behind, while Omari Kichwaa threw a knife which was caught by Abdul and used it instantly to attack the deceased. He stabbed the deceased on the stomach. Omari Kichwaa stabbed him once again ; saying they shouid find us ail and finish us aii." 15

[Emphasis added] The description of the Doctor (PW3) appearing at page 41 was as follows: 7 observed that there were two wounds one at the left hand side o f the thigh, lateral Proxima part o f the left thigh ........ The other injury was on the right hand side, /eft iliac crest, which was also deeply penetrative way into the right inguinal area." [Emphasis supplied] The doctor spoke of the thigh and the inguinal area. The inguinal area is the junction between the thigh and the abdomen. It is located at the upper end of the thigh on the front area. So, according to PW3, to use a simple language, the deceased was stabbed on the right leg at the thigh and on the left leg at the upper front end of the thigh. PW3 did not talk of any wound at the stomach as described by PW2. It follows that there was a contradiction because the stomach and thigh are two different parts. As this contradiction was not resolved during trial, it raises doubt in the evidence of PW2 and PW3. Like the counsel for the appellants, we find the contradiction to be material and fatal. Lastly, we will move to examine the identification of the appellants and failure to call material witnesses. The evidence shows that, 4 community guards entered inside the house where there were many people watching football and saw the 1s t appellant who was chewing 16

Khati and decided to arrest him. On sensing that he was being arrested, he walked to the bathroom. The deceased moved after him. The 1s t appellant decided to run away. The community guards run after him. They arrested him at the CCM building. Soon a big crowd of people came to resist the arrest. PW2 sensed danger and went to hide himself in a safe place about 10 meters away leaving his colleagues in the crowd. The deceased was put to task. PW2 said that while at the hiding place, he saw the 2n d appellant holding the deceased's hands from behind. He saw one Omari Kichwaa throwing a knife to the 1s t appellant who picked it and stabbed the deceased on the stomach. Omari picked the knife and stabbed him also. They run away leaving the deceased on the ground. The 3 community guards assembled again and looked for assistance from the other group. They decided to pick transport and send the deceased to hospital. The issue now is whether PW2 who was hiding at a distance of 10 meters leaving his colleagues in a fracas involving 30 people, could have identified the appellants properly. Having considered the evidence closely, we have the view that, PW2 did not make a proper identification of the appellants. Our reasoning is not farfetched. PW2 moved to the hiding to save his life after sensing danger. He was definitely worried. We wonder how he could recall to look back and see what was happening. We are 17

not even told the place where he was hiding himself to see if there were no obstacles in between. It is possible that he could not easily see what was happening in the crowd given his state of mind and the number of people who were involved. There is also the obvious fact that he did not give any description of the appellants and the intensity of light at the scene of crime. Apart from the identification problem, we find it difficult in accepting the submission of Ms. Sekule that there was no need of calling other witnesses because the evidence of PW2 was enough to prove the case. As there were 2 other community guards, other than PW2 who were closer to the deceased and therefore could give better evidence than PW2, we think it was important to call them as well. On a properly investigated case, even some of the members of the crowd could also be called as prosecution witnesses. They were all material witnesses in the circumstances of this case. Failure to call them entitle the Court to draw an adverse inference on the prosecution evidence. See Aziz Abdallah v. Republic [1991] 77CA 46 and Paschal George Paschal v. Republic [2024] TZCA 534. Based on these shortcomings, we find inspiration from the wisdom of Lord Justice Benjamin Franklin of England who said, "it is better one hundred (100) guiity persons escape than one innocent person to suffer," 18

See Malimi Peter vs Republic [2024] TZCA 65 (20 February 2024) and Alphonce Michael @ Rasi vs Republic [2025] TZCA 297. That said and done, we allow the appeal, quash the conviction of the appellants and set aside the sentence imposed upon them. We order their immediate release unless held on some other lawful cause. DATED at DODOMA this 25thday of March, 2026. L. J. S. MWANDAMBO JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered virtually this 25th day of March, 2026 in the presence of the Appellants in person - unrepresented, Mr. Tonny Kilomo, learned State Attorney for the Respondent / Republic and Ms. Anna Utou, Court clerk, is hereby certified as a true copy of the original. ' : M R. W. CHAUNGU H DEPUTY REGISTRAR COURT OF APPEAL 19