Emmanuel Sayi @ Nwari & Another vs Republic (Criminal Appeal No. 256 of 2023) [2026] TZCA 310 (13 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA (CORAM: LILA. J.A., MAIGE, J.A. And MANSQQR. j.a.^ CRIMINAL APPEAL NO 256 OF 2023 EMMANUEL SAYI @NWARI ....... YOHANA EMMANUEL @ GIDION 1 st APPELLANT 2 nd APPELLANT VERSUS THE REPUBLIC RESPONDENT (Appeal from the judgment of the High Court of Tanzania, at Shinyanga) (Matuma. J.^ dated the 28th day of November, 2022 Cpnsolidated Criminal Sessions No. 12 of ?oi8 and 3ft of 202Q MAIGE J.A.: In the High Court of Tanzania at Shinyanga, the appellants were charged alongside three others who were subsequently acquitted (the innocent suspects), with two counts namely; murder contrary to section 196 of the Penal Code and attempted murder contrary to section 211(a) of the same law. Regarding the first count, it was alleged that on January 2, 2016, at Gitoya Street within Bariadi District in the Simiyu Region, the appellant alongside the innocent suspects murdered Ester Kondela (the deceased). On in JUDGMENT OF THE r n i l P T 12th February & 13r d March, 2026 the second count, they were accused of attempting to murder Leticia Daud @ Hoka (PW2) at the same time and location, Upon a full trial comprising of ten witnesses from the prosecution and two from the defense, the trial court found the appellants guilty of both the offences and imposed to each of them, a mandatory death sentence. The appellants were aggrieved both the conviction and sentence and henceforth the current appeal. The factual basis for the appellants' conviction and sentencing can be summarized as follows. Around midnight on the material date, PW2 was asleep at home with the deceased when four-armed assailants carrying torches broke into the house. PW2 testified that the room was brightly lit by the intruders' torches, allowing her to positively identify the second appellant as her cousin. She then witnessed the attackers assaulting the deceased on multiple parts of her body. She wanted to make a call but her mobile phone was taken away. When she attempted to raise an alarm, the second appellant smothered her mouth. She was then forcibly taken into the sitting room where three of the attackers, including the second appellant, subjected her to sexual assault. She was then physically assaulted by machete until she lost consciousness and, when she regained it, she found herself at Bugando Hospital admitted where 2 she remained speechless for more than a year, and, when she regained her speech, she provided a police statement which was, during cross examination, admitted into evidence as exhibit P4 with a view to impeaching her credibility. PW1, Dr. Gabriel Masenya Mponya, examined PW2 on 2n d February, 2016 and observed severe cut wounds on her body, including deep lacerations on her head and arms (exhibit PI). Besides, he also participated in the examination of the body of the deceased, noting multiple cut wounds to the head, neck, and limps resulting into massive blood loss which was the direct cause of her death. The post-mortem report was admitted as exhibit P2. PW3, Samwel Mayenga, an assistant commander of traditional militia (sungusungu) testified that, on 2n dJanuary, 2016, at around 9:00 hours, while at home, he was alerted by a neighbor to an abandoned bag in his garden. Upon inspecting it, he discovered, among others, a paper containing phone contacts. When they called one of the numbers, a woman called Neema Mapalala answered and disclosed that she had given that paper to PW2. Afterwards, PW3 and the said woman visited PW2's residence, where they were informed of the incident. PW4 (Musa Henry), a close relative of deceased, testified that one month prior to the incident, the second appellant had threatened his life. This threat allegedly followed a land dispute victory by the deceased and her mother against the the second appellant, a case in which PW4 had acted as the legal representative for the deceased's mother under a power of attorney. Following the incident, PW5 (Inspector Gaudent) arrived at the crime scene at approximately 09:00 hours. Upon arrival, he observed the deceased's body and was informed that another victim (PW2) had already been evacuated for medical treatment. Through preliminary inquiries at the scene, PW5 gathered intelligence identifying the second appellant as a suspect. The alleged motive was traced to a land dispute between the second appellant and the deceased. Consequently, on 10th January 2016, the officer apprehended the second appellant at Ikungulyangoma Village, Maswa District. At the time of his arrest, the second aappellant had sought refuge at the residence of a traditional healer known as Nindwa. On 12th January, 2016, they arrested the first appellant at Ngulyati Village within the District of Bariadi in Simiyu Region. Under interrogation, the first appellant admitted to committing the offence and confessed to the theft of a mobile phone. The exhibit in question was an Itel mobile handset, silver and blue in color identified by Imei no. 358473057524248. The item was seized in accordance with the emergence seizure certificate (exhibit P5). Subsequently, the appellants recorded cautioned statements in which they formally confessed to their involvements in the crime. Despite the first appellant's retraction, his cautioned statement was admitted as exhibit P6 following a trial within a trial. The second appellant, while not retracting or repudiating his own confessional statement, contested its admissibility through counsel on the grounds of procurement irregularities. Nevertheless, the court admitted the statement as exhibit P7. In their defence, the appellants denied being involved in the crimes, maintaining that they were not at the scene on the material date and time. They claimed further that their cautioned statements were obtained under duress. They further claimed that the identification by PW2 was unreliable due to the darkness and her traumatized state. In particular, the first appellant claimed that he was a dealer of illicit beer known as gongo and that his arrest followed a dispute with one of the police officers after he refused to give a bribe. He 5 asserted that during the arrest for possessing illegal alcohol, he was tortured so severely that he required hospitalization, a claim he substantiated by producing a PF3 which was exhibited as Dl. The second appellant admitted having relationship with the deceased, noting that she was his step mother, with whom he lived until she was divorced by his father in 2009. While acknowledging this story, he vigorously denied participating in the alleged offence. In their memorandum of appeal, the appellants have enumerated 11 grounds of appeal. By way of supplementary memorandum of appeal, they have added four more grounds. At the hearing of the appeal, however, Mr. Audax Constantine, learned advocate who appeared for them, dropped all the grounds in both the memoranda and retained grounds 2 and 4 in the substantive memorandum of appeal and ground 3 in the supplementary memorandum of appeal. For easy of references, the respective grounds shall be treated as grounds one, two and three, respectively. They read as follows: 1. That PW2 and PW3 failed to identify exhibit P3 by using IMEI No. and no connection between the aiieged phone and the incident 2. PW2 faiied to explain the intensity o f light 6 3. The trial court erred in law and fact for relying on the phone in question while its chain of custody was broken. In address of the first ground, Mr. Constantine contended that the second appellant was erroneously convicted based on unreliable identification evidence and cautioned statement. The identification by PW2, he submitted, is fundamentally flawed and could not be free from mistaken identification. He assigned three reasons. First, while the incident occurred at night, the prosecution failed to lead evidence regarding the intensity of light to prove a favorable environment for positive identification. Second, the testimony is vague as to when the witness regained consciousness and at what period she first disclosed the second appellant's identity. Third, in the light of the existing fand dispute between the parties, the identification was a mere afterthought which lacked the requisite credibility to sustain a conviction. Regarding the second ground, Mr. Constantine submitted that exhibit P3's chain of custody was broken. He noted material contradictions between the certificate of seizure (exhibit P5) and the testimony provided. According to the certificate of seizure, he submitted, the item seized was merely recorded "Simu moja aina ya 7fe/"along with its IMEI number; the document failed to mention the color of the phone or that the battery bore the name of Dr. 7 Musa. Despite this, he submitted, PW2 who tendered the document in evidence totd the trial court that the phone was blue and identified the battery as having "Dr. Musa" written on it. The counsel submitted that there was no evidence linking the phone described in court to the one listed in the certificate of seizure. He further doubted the legitimacy of this identification, submitting that the description given by the prosecution witness in court differed significantly from the details recorded during the actual seizure and in the testimony of the seizing police officer, PW5. Additionally, the counsel submitted, the prosecution failed to document the hands through which the device passed prior to its admission into evidence. He concluded, therefore that, theses evidentiary gaps meant that the case had not been proved beyond reasonable doubt. Finally, he asserted that because the confessions were retracted, they could not sustain convictions without independent corroboration. In response, Ms. Sophia Fidelis Mgassa who together with Ms. Nancy Medard Mshumusi, both learned Senior State Attorneys wo appeared for the respondent Republic, submitted that the visual identification of the second appellant was sufficiently established. Ms. Mgassa noted that as per the record (page 60), PW2, a relative s of the second appellant, provided a clear account of the room's dimensions and her close proximity to the assailants during the incident which are favorable factors for correct identification. Regarding the chain of custody for exhibit P3, the learned Senior State Attorney conceded that white certain gaps existed, these were cured by the oral testimony of the arresting officer (PW5), who verified the seizure and identification of the device. Counsel further argued that the principle of chain of custody should not be applied strictly in this instance, as a mobile phone is not an item easily tampered with. In support of this position, she cited Joseph Leonard Manyota v. R (Criminal Appeal No. 485 of 2015) [2017] TZCA 1029, TANZLII. Ultimately, the learned Senior State Attorney maintained that the evidence, when viewed in its totality, was sufficient to sustain the conviction and prayed for the dismissal of the appeal. Having heard the rival arguments, it may be desirable to consider the merit or otherwise of the appeal. In so doing, we shall be guided by three issues: One, whether the appellant was sufficiently identified at the crime scene; Two, whether exhibit P3 was properly identified; and three, whether the case against the appellant was proved beyond reasonable doubt. 9 We begin our analysis with the second issue, concerning the identification of the mobile phone described in exhibit P3. The prosecution alleged that this device was robbed from PW2 at the crime scene and was subsequently recovered by PW5 from the first appellant's residence. By invoking the doctrine of recent possession, the prosecution relied on this recovery as a primary evidentiary link placing the first appellant at the scene of the crime. This point was a subject of contention during the trial, and the learned trial judge addressed the matter in the following terms: "lam aware that Mr. Kaunda tried to dispute the identification o f the mobile phone but with due respect to the learned counsel, the dispute was not on the ownership o f such mobile phone. It was a dispute on the admissibility o f such phone as exhibit I ruled out that the mobile phone was in law admissible because the witness had described her own identifying features including colors; blue and silver. Its model type; Intel, and its battery hand written mark; "Dr. Musa" the features which were really existing at the time when the witness was eventually given such phone to show to show to the court such identifying marks. In regard to ownership, PW2 was not cross 10 examined or disputed to have been the owner o f such phone. She explained that she was given that phone by PW4 Musa Henry Shilingi who confirmed that it was him who had bought that phone and gave PW2 for her uses and it is him who by his own handwriting wrote his name to the battery "Dr. Musa. He identified his handwriting on the battery and the phone itself. With all this evidence, I have no doubt that PW2 gave sufficient evidence that she is the owner o f such phone and she sufficiently identified i t " Mr. Constantine's attack on that factual finding starts with variance between the testimony identifying the exhibit and the specific identifiers recorded in the certificate of seizure. He contended—correctly, in our view that, to establish a legal link between the item tendered in court and the item seized from the suspect, the identifying marks must be identical. In response, Ms. Mgassa argued that no material discrepancy exists between the oral evidence and the seizure certificate. Alternatively, she submitted that any existing variation was sufficiently explained by the arresting officer's testimony. 11 The law regarding the identification of suspected stolen property found in an accused's possession is well-settled: the complainant is strictly required to sufficiently identify the item in open court and must further provide conclusive proof of ownership.See for instance, David Chacha and Others v. R (Criminal Appeal No. 12 of 1997) [1997] TZCA 108, TANZLII, Vumilia Daud Temi v. R (Criminal Appeal No. 246 of 2010) [2013] TZCA 443, TANZLII and Ramadhani Hamis @ Joti v. R (Criminal Appeal No. 513 of 2016) [2019] TZCA 486, TANZLII. The exhibit in question was seized by PW5 under an emergency certificate of seizure (exhibit P5), which identified the device by its make (ITEL), IMEI, and SIM card registration number. However, a material discrepancy exists between this documentary evidence and the oral testimony. While PW2 (the alleged owner) identified the phone by its make, she failed to mention the IMEI or SIM registration number. Furthermore, although the item was seized on January 12, 2016, and subsequently identified at the police station by PW4 (who allegedly purchased it for PW2), his identification relied on the phone's color and a battery marked "Dr. Musa.” These specific physical markers, the color and the name on the battery, were used by both PW2 and PW4 during trial but are notably absent from the certificate of seizure. Conversely, the two primary identifiers listed in the certificate (IMEI and SIM numbers) were never mentioned in the testimony of PW2 or PW4. Additionally, neither witness produced concrete proof of ownership. This creates a reasonable doubt as to whether the item seized is actually the one stolen from PW2. Therefore, in Ramadhani Hamisi @Joti v. R (supra), we observed in a situation akin with this as follows: "It is our considered view that it was incumbent upon the compiainant to identify the aiiegediy stolen items in court. That was not done and this, therefore, is another taint casting doubt in the prosecution case. As already put by Mr. Mkony, in such circumstances, we cannot be sure that the stolen items which were identified by PW1 at the Police Station were the very ones which were tendered in court as exhibits." In view of the foregoing, therefore, we find merit in the second ground of appeal and it is hereby allowed. As a result, the respective exhibit is excluded from evidence. 13 We now move to the first ground which raises an issue whether the second appellant was positively identified at crime scene. In accordance with the principle in Waziri Amaru v. Republic [1980] TLR 250, visual identification evidence should only be relied upon after the trial judge has satisfied himself that all possibilities of mistaken or fabricated identity have been eliminated. The specific factors required to eliminate such risks were detailed in that authority and have been consistently upheld and refined in subsequent pronouncements of the Court. These factors were notably summarized in Simeo Stephano @ Chaurembo v. R, Criminal Appeal No. 384 of 2020 (unreported) as follows: "the time the witness had the accused under observation; the distance at which he observed him; the conditions in which such observation occurred, for instance, whether it was day or night-time whether there was good or poor fighting at the scene; and further whether the witness knew or had seen the accused before or not The Court aiso observed that the guidelines set are not exhaustive since other emerging relevant factors can also be considered" In his submissions, Mr. Constantine challenged PW2's ability to identify the second appellant under the given circumstances. He 14 further contested her credibility, arguing that her testimony regarding when she regained consciousness was vague and her testimony in that aspect generally appeared to be an afterthought, a claim which was strongly refuted by Ms. Mgassa. We concur with Mr. Constantine that assessing an eyewitness's credibility is a foundational step before determining if the conditions for a reliable identification were met. This approach is supported byJaribu Abdallah v. R [2003] TLR 271, where the Court held: " In matters o f identificationit is not enough mereiy to iook at the factors favoring accurate identification. Equally important is the credibility o f witnesses." It is interesting to note that, even the trial judge had in mind when he remarked: "With the stated family grudges, the only duty to me is to assess whether PW2 was a credible and reliable witness for her identification o f the second accused person to avoid the possibility o f victimization ," Therefore, before assessing whether the conditions favored an accurate identification, we find it necessary to first re-evaluate PW2's testimony and reach our own findings, as is our duty in a first appeal. PW2 testified that she lost consciousness following her 15 injuries and remained unable to speak until March 2017, at which point she provided a police statement. During cross-examination, this statement was tendered as exhibit P4 to impeach her credibility. Our initial observation concerns the statement found in the first paragraph of exhibit P4: "Naishi mtaa wa Maiambo kwa sasa nafanya kazi ofisini katika Hamashauri ya mji Bariadi." It is strikingly implausible that PW2 could have transitioned from a state of total speechlessness to active employment as a Mtaa Executive Officer within the same month. This timeline allows for no period of recovery or recruitment, creating a fundamental contradiction in her testimony that severely undermines her reliability. Furthermore, while the trial court relied on voice recognition mentioned in the exhibit, her oral testimony remained entirely silent on this point. There is also a major omission: her oral claim that her mobile phone was stolen during the robbery appears nowhere in the written exhibit. More to the point, in the same exhibit, PW2 indicated that her suspicions regarding the murder were directed at the appellants and an individual not party to these proceedings. As this statement was recorded after the appellants had already been apprehended, we find that the appellants' 16 submission that this identification was a mere afterthought to be highly plausible. Given these compounding anomalies, we view PW2's identification with great suspicion. Consequently, without the need to assess the physical conditions for identification, we find it unsafe to rely on such evidence. The first ground of appeal is therefore allowed. We now address the final ground: whether the prosecution proved the case against the appellants beyond a reasonable doubt. In reviewing the first appellant's conviction, we note that he was not identified at the scene, nor was he linked to the land dispute that allegedly motivated the crime. His conviction rested on three specific pillars: his own retracted confession, the incriminating statement of the second appellant, and his possession of a mobile phone suspected to have been stolen during the incident. Regarding these elements, the trial court reasoned as follows: " In the instant case I am satisfied that the mobile phone exhibit P3 was found in physical possession o f the first accused person. There is ora! evidence o f PW5 the seizing officer and the emergency certificate o f seizure exhibit P5. There was no serious 17 dispute o f such possession. In respect o f the rest o f the accused persons they can justifiably be deemed to have been also found in possession o f such stolen property under the doctrine o f constructive possession under section 5 o f the Penal Code Cap. 16 R.E. 2019 because in their respective cautioned statements they categorically admitted to have known that the first accused was in possession o f such phone which he obtained under their common evil acts against the victim and the deceased." With the exclusion of exhibit P3, the doctrine of recent possession is no longer applicable. The remaining evidence against the first appellantconsists solely of his retracted confession and the incriminating statement made by the second appellant. As per the principle in Ali Salehe Msutu v. R [1980], the general rule is that a retracted confession requires corroboration to sustain a conviction. While a court may convict on uncorroborated evidence if it is fully satisfied of its absolute truth, in this case, the trial court was hesitant to base a conviction on retracted confession without corroboration. The incriminating confession of the second appellant which in law requires corroboration, cannot be used to corroborate the first appellant's retracted confession. This is because, as a 18 matter of principle evidence which requires corroboration cannot corroborated. Having said that, we find that, the remaining evidence does not suffice to prove the case against the appellant beyond reasonable doubt. We now proceed to examine the complaint as it pertains to the conviction of the second appellant. We observe that, notwithstanding the exclusion of exhibit P3 and the rejection of the visual identification evidence, his cautioned statement remains on the record, having been neither repudiated nor retracted. As a matter of settled legal principle, such a confession may solely sustain a conviction if the court finds it credible. However, before placing exclusive reliance on an extra-judicial confession, the trial court must satisfy itself that the statement clearly encapsulates the specific role of the confessor in the commission of the offence and is legally probable. The conviction of the second appellant was predicated not solely on his confessional statement, but on a combination of visual identification evidence, corroboration from the said confession, and the doctrine of recent possession. Whether these confessions alone were sufficient to sustain a conviction was a matter of intense dispute during the trial, primarily due to significant inconsistencies. 19 Specifically, the defence questioned why, if the appellants truly intended to confess, their accounts varied on material facts, such as the number of machetes used and the identity of the individual who assaulted PW2. The learned trial court, acknowledging these material contradictions, concurred that the statements were unreliable. Consequently, he declined to place reliance on the confessions, even those that remained unrepudiated and unretracted, holding that they could not safely support a conviction without independent corroboration. In light of the specific circumstances of this case, the trial court's approach was undoubtedly correct. Our careful review of the confessional statements on the record reveals that they are riddled with material inconsistencies. Consequently, to rely on such statements to sustain a conviction without the support of independent corroborating evidence would be to assume a grave and unacceptable risk of a failure of justice. Under the law, the standard of proof beyond a reasonable doubt requires a degree of evidentiary integrity that is unattainable when the primary evidence is contradictory. Furthermore, relying on the second appellant's confession while rejecting similar statements from other suspects, including one allegedly involved in the physical assault, would constitute ddeferentiai treatment, violating the Constitutional principle of equality before the law. We are, therefore, of the view that, the confessional statement of the second appellant though un retracted and unrepudiated, requires corroboration. The issue is whether independent evidence exists to corroborate the second appellant's cautioned statement. Perhaps, the only piece of evidence on record which could perhaps corroborate his confession is motive. That was noted by the trial court at page 298 of the record. Thus: "Lastly, the corroborations against the second accused are the motive behind the crime. Although motive behind the crime is not necessary to be proved but when the same is sufficiently proved it becomes corroborative against the wrong dour/accused person ." The prosecution's theory regarding motive centers on an undeniable land dispute. However, the accused vigorously contested this claim in his defence. Among all the witnesses called by the prosecutionMusa Henry Shilingi (PW4) was the sole individual to provide testimony on this matter. His specific testimony was as follows: 21 " Yohana Emmanuel lost the case and, on our party, we won the case. Thereafter, Yohana Emmanuel, Ditu Erasto and Sayi Ngunila started to threat that they will kill me. I reported at police Bariadi on 17/11/2015 on Tuesday. That day, when they threatened me was Tuesday as we met at the local market (mnadani). Police told me they will work on it." PW4 was challenged by way of cross examination if he had any evidence that he reported the incident to the police and he said, '7 have not brought the evidence that I reported the threat to police. Besides, the prosecution failed to call any police witness to corroborate this report. In any event, any such threats were directed neither at the deceased nor at PW2. In fact, PW2 admitted during cross-examination that she held no personal grudge against the second appellant. Consequently, the alleged motive remains a matter of mere suspicion rather than established fact. It is far too speculative to serve as corroboration. Absent any other evidence to support his confession, we find that the case against the second appellant was not proved beyond reasonable doubt. In the final result and for the foregoing reasons, the appeal is hereby allowed. We quash the convictions and set aside the 22 sentences imposed on the appellants. We, therefore, order that the appellants be set free unless they are so held for any other lawful cause. DATED at DODOMA this 12th day of March, 2026. S. A. LILA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL Judgment delivered this 13r d day of March, 2026 in the presence of Mr. Augustino Ijani holding brief for Mr. Audax Constantine, learned counsel for the Appellant, Ms. Mboneke Ndimubenya, learned State Attorney for the Respondent/Republic and Mr. Leopord Mabugo via virtual court, is hereby certified as a true copy of the original. 23