Nyori Maandamano @ Nana & Others vs Republic (Criminal Appeal No. 254 of 2023) [2026] TZCA 309 (13 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA f CORAM: LILA J.A.. MAIGE, J.A. And MANSOOR. J.A.^ CRIMINAL APPEAL NO 254 OF 2023 1. NYORI MAANDAMANO@NANA......................... . ......... ...I st APPELLANT 2. SAIMON SAMWEL@MBOJE ............................................. 2 nd APPELLANT 3. ABEL CHARLES................................................................. 3 rd APPELLANT 4. SHINDIKA MASANGWA................................................... 4™ APPELLANT 5. DAUD BUNZALI® LUNAGA..............................................5™ APPELLANT VERSUS THE REPUBLIC . .......................................................................RESPONDENT (Appeal from the judgment of the High Court of Tanzania, at Shinyanga) ( Matuma. J.l dated the 11th day of October, 2022 in Criminal Session No. 3 of 2021 JUDGMENT OF THE COURT 12th February & 13th March, 2026 MAIGE, J.A.: In the High Court of Tanzania, sitting at Shinyanga, the appellants were arraigned on an Information charging them with the murder of one Keflen d/o Masalu @ Sosoma. The particulars of the offence allege that the crime was committed on the 11th day of December, 2015, at Butuyu Area within Kishapu District in the Shinyanga Region. To discharge the legal burden of proof, the Prosecution called a total often 1 witnesses and produced three exhibits. In substance, the material evidence upon which the appellants were prosecuted may be summarised as follows: On the date of the incident, Musa Athumani Taibu (PW5) served as Regional Crime Officer (RCO) for Shinyanga Region. While investigating three armed robberies in Shinyanga town that occurred shortly before the event in question, he received information implicating the third appellant. Authorities commenced tracking the third appellant's mobile number via cyber-surveillance, which placed him in the Nyakanazi Area within Biharamulo District in Kagera Region on 11th December 2015. With the assistance of the OCS Nyakanazi Inspector Haji Rajabu (PW6), the first and third appellants were apprehended. During interrogation, they denied involvement in the alleged armed robberies but revealed a conspiracy to kill Ndusa Mashauri @ Jalamila (PW3). They further disclosed that they had already dispatched the second, fourth, and fifth appellants to carry out the assassination. PW6 promptly notified PW5 of these developments; upon arrival, PW5 personally interviewed the suspects, who admitted to the plot. When questioned about the motive, the first appellant stated: nimeamua kwa sababu nimemkopesha Ndusa Jalam ila shi/ingi m illion in sh irin i na m bifi na la k i tano. Nim etaka aniiipe am ekataa kunilipa. Hivyo nimeamua kutafuta watu kumuuwa!' In an attempt to prevent the crime, PW5 requested the OC/CID for Kishapu to contact the local village authorities. Using a mobile number provided by the first appellant, PW5 also alerted the village leadership. PW3 testified that, around 20:00 hours on the night of the incident, Feya James (the acting Village Executive Officer), informed him that police officers at his office had intelligence regarding bandits planning to assassinate him. PW3 immediately took defensive measures. Shortly after, the OC/CID for Kishapu called, urging him to flee his home as soon as possible due to the impending threat. PW3 took an asylum at the residence of Nalonja Tumila, who suggested alerting the traditional militia (Sungusungu) to guard the residence. However, when they contacted the OC/CID, he advised against it, warning: "Hapana hao watu wana sifaha kali. Mkifanya hivyo wanaweza kufa watu wengi. Wewe nenda m bali ujifiche alafu kesho uamkie kituoni/'Vw z. two men hid in a nearby forest until midnight, when they heard alarms sounding from the village. Upon returning, they discovered that the attack had already taken place at PW3's residence and the deceased had been murdered in the process. The following day, PW5's investigation led him to notify PW6 that the four individuals responsible for the murder had been spotted in the Nyakanazi Area. Obtaining a mobile number for one of the 3 suspects, PW6 staged a ruse by posing as the first appellant and claiming that he wanted to pay them their fee. This led to the arrest of the second, fourth, and fifth appellants. Upon interrogation, they confessed to the crime, the confessions which they later repeated to PW5. When questioned by police regarding potential suspects, PW3 identified the first appellant, citing a financial dispute as the probable motive. According to PW3, he had borrowed TZS 20,000,000 from the first appellant, with an additional TZS 2,500,000 interest or fee. PW3 claimed that the debt was settled in kind by delivering 40 cows, valued at TZS 500,000 each, which should have liquidated the principal debt. However, when PW3 asked the first appellant to sign a contract acknowledging the payment, the appellant refused, asserting that the cattle were only worth TZS 10,000,000. Additionally, PW3 testified that, the first appellant had forcibly seized his vehicle and was attempting to take over his farm, a conflict that had already been reported to the hamlet chairman. As to how the offence was committed, the deceased's daughter, Salome Mashauri Jalamila (PW1), testified that she was present when the assailants invaded their home. After forcing entry, the bandits proceeded directly to the deceased's room and demanded the whereabouts of PW3. When the deceased stated that she did not know, a dispute arose between two of the intruders concerning her fate. One assailant insisted on the killing, stating, "Tumuue tu, s is i tum etum wa"{"Let's ju s t k/JI her, we have been sent'), while the other disagreed and exited the room. The remaining assailant then launched a violent assault with a panga. Upon the intruders' departure, PW1 entered the room and discovered that her mother had been killed. She immediately raised a distress alarm, alerting the villagers. The post-mortem examination conducted by Dr Rajabu Hussein Simba (PW9), corroborated this account. He concluded that the cause of death was acute blood loss resulting from multiple deep incised wounds. In their defense, the appellants and each of them denied commission of the offence and denied to have freely and voluntarily confessed. On examining the evidence, the trial court found that the case against the appellants had been proved beyond reasonable doubt. It thus convicted them with the offence and sentenced each of them to death by hanging. Aggrieved, they have preferred this appeal. Initially, the appellants had lodged a memorandum of appeal comprising twelve grounds followed by a supplementary memorandum of appeal raising four more grounds. At the hearing, the appellants opted to 5 argue three grounds only and dropping ail other grounds. The respective grounds raise the following complaints, one, there is variance between the information and evidence, two, exhibit P3 was wrongly received in evidence; three, the evidence of PW3 was incredible, improbable and unreliable and Four, the circumstantial evidence upon which the appellants were convicted did not link the appellants with the offence. At the hearing, the appellants were represented by a team of five learned advocates namely; Messrs Elius Rachuonyo Hezron, Audax Constantine, Augustine Ijani, Jacob Mayala Somi, and Ms. Gloria Ikanda, respectively. The Respondent the Republic was represented by Ms. Immaculata Mapunda, learned Senior State Attorney assisted by Mr. Santininus Kamala, learned State Attorney. Given that the appeal was filed jointly, counsel for the appellants informed the court of their coordinated strategy: Mr. Augustine handled the arguments for the first three grounds, while Mr. Hezron addressed the final ground. In the address of the first ground, Mr. Constantine contended that there was variance between the information and evidence regarding the name of the deceased. In the information as much as it is in the postmortem examination report (exhibit P2), he submitted, the name of the deceased is Keflin d/o Masalu @ Sosoma. Conversely, in the testimonial 6 evidence of PW1, PW2 and PW3, the deceased is consistently referred to as Catherine Masalu @ Sosoma. Equally so, in the judgment. He concluded, therefore that, the effect of such variance was to render the case not proved beyond reasonable doubt or at all. This is because, he submitted, there was no evidence to the effect that the two names were of the same person. The prosecution, he emphasized, were expected to reconcile the discrepancy by having the information amended, which they did not. He cemented his contention by citing the case of Thabit Bakari v. R (Crimi '21] TZCA 259, TANZLII. In re; was his submission that, exhibit P3, a print out from mobile phone transactions by PW10 was irregularly admitted insofar it was not listed during committal proceedings nor its substance read over and explained to the appellants. The effect of the omission, he submitted, is to have such evidence excluded. He prayed, therefore that, it be excluded from the record. Concerning ground three, Mr. Constantine attacked the testimony of PW3 to be incredible and improbable making reference to his testimony at pages 56 and 57 of therecord. He further pointed out some contradictions between PW3 and PW5 as to what was the advice. Vne counsel further doubted the probity of the story of PW3 as to what transpired. He was in doubt if it was reasonably possible in the circumstances for the police to advise him to vacate his home and leave the family for the reason that the bandits had dangerous weapons. The counsel further challenged the prosecution for the failure to call the acting village chairman and the OC/ CID Kishapu which, according to them, would possibly address these anomalies. Regarding the fourth ground, Mr. Hezron began by noting that the appellants' convictions were based on circumstantial evidence and oral confessions allegedly made to PW5 and PW6. He submitted that for a conviction based on circumstantial evidence to be sustainable, the chain of events must be unbroken, linking the suspects to the crime while excluding any other reasonable hypothesis. Counsel criticised the trial judge for relying on unsubstantiated evidence to establish a circumstantial link. Specifically, he argued, the court erred by identifying a loan transaction as the motive for the crime. He pointed out that since the appellant was the creditor and the deceased was the debtor, it defies common sense that a creditor would murder the person who owes him money, as doing so would effectively extinguish any hope of recovering the debt. Mr. Hezron further submitted that another piece of evidence from which the appellants were circumstantially linked, was the print out in exhibit P3, about which it has already been submitted that it was not listed 8 during committal proceedings. He submitted further that, if, which he denied, the respective exhibit was listed, its probative value would yet remain wanting. He assigned three reasons to substantiate his claim, one, the said exhibit suggests that some cash was on 5th December, conveyed to the second appellant as a reward for committing the murder. Conversely, the print out was made 10th December, 2015 when no one had been arrested. He, therefore, wondered what was the basis of having such a print out at that particular moment in time when the alleged murder of the deceased was not in the light. He submitted that, this, when linked with the finding of the trial judge that one of the confessional statements was fabricated, raises serious doubt on the credibility and integrity of the prosecution evidence. While acknowledging that an oral confession can legally sustain a conviction on its own, Mr. Hezron contended that the trial court should have first rigorously verify its credibility and probity. He emphasized that, pursuant to Section 27 of the Evidence Act, such confessions must be voluntary. Citing the case of Tabu Malebeti Medard and Others v. R (Criminal Appeal No. 115 of 2020) [2023] TZCA 17945, TANZLII, counsel submitted that there was no evidence to prove that the appellants were free agents at the time of the alleged statements. He specifically drew attention to page 225 of the record, noting that the trial judge himself 9 expressed doubt by remarking that the appellants had not been warned. In counsel's view, this lack of caution is sufficient proof that the confessions were not made voluntarily. In the alternative, counsel submitted that the evidence against the first and third appellants only suggest a conspiracy to commit murder, which is insufficient to sustain a conviction for the substantive offence of murder. He argued that even if the evidence were accepted, it merely shows the plan to kill and not the execution of the plan itself. He concluded, therefore that, the prosecution did not prove the case beyond reasonable doubt. In response to the complaint in ground one, Ms. Mapunda in the first place conceded of there being variance in the first name of the deceased. She submitted however that, the omission is nothing but a mere misnomer and, because it did not prejudice the appellants, it can be tolerated without leading to failure of justice. She said so because, the name has been Catherine throughout the evidence. So in the judgment. In her contention, therefore, the two refers to the same person. Concerning the admissibility of exhibit P3, she was quick to admit that the admission was in violation of the law because, for not being listed during committal proceedings and its substance read, the said exhibit could not in law be used against the appellant without leave of the trial 10 court. She agreed, therefore that, the said exhibits should be excluded from evidence. In respect to the third ground, the learned Senior State Attorney contested the assertion for the appellants that the testimony of PW3 was inherently incredible or improbable. She submitted that the trial court's evaluation of the witness's credibility was sound and warranted no interference by this Court. She contended further that, the discrepancies in their testimonials as pinpointed by the learned counsel for the appellant were trivial which did not strike at the root of the prosecution's case. It was her humble contention, therefore that, such inconsistencies were insufficient to impeach the credibility of the witness or the integrity of the evidence as a whole. In respect of the fourth ground of appeal, the learned State Attorney submitted that the circumstantial evidence, when viewed in conjunction with the appellants' oral confessions made to PW5 and PW6, provides unbroken link between the appellants and the commission of the offence. She contended that since each appellant allegedly admitted to participating in the murder, the probative value of these confessions reinforces the circumstantial chain. She, therefore, called upon the Court to uphold the trial judge's finding that the totality of the circumstances and 11 the cumulative effect of the evidence established the appellants' guilt to the required standard. In rejoinder, Mr. Hezron recapitulated that the variance between the information and the evidence is legally fatal. He argued that the claim by the learned State Attorney that the omission might be a mere slip of the pen is nothing else other than an assumption of fact unsupported by actual evidence. Counsel further submitted that the prosecution had ample opportunity to rectify the anomaly during the trial but failed to do so. He contended that the position suggested by the learned State Attorney is uncalled for, as it is in effect an attempt to impeach the trial court's own record to cover a fundamental procedural failure. From the rival submissions by the learned counsel, two important issues, in our view, have to be considered in determining the appeal namely; whether exhibit PI was properly admitted into evidence and whether the case against the appellants was proved beyond reasonable doubt. We shall start with the issue of admissibility of exhibit P3. Both counsel are in agreement that it was wrongly received in evidence. The reason being that it was not listed during committal proceedings. Nor was 12 its substance read and explained to the appellants as the law requires. On our part, we have had an opportunity to examine the record in respect thereof and established that, Indeed the respective exhibit was not part of committal proceedings. The position of law on this is settled and we need not cite any authority. It is to the effect that, for a piece of evidence not disclosed during committal proceedings to be admitted in evidence, leave of the court is required. There being no such leave, we agree with the concurrent submission of the counsel that, exhibit P3 was wrongly received in evidence. The issue is therefore answered positively and as a result we exclude such evidence from the record. Regarding the second issue of whether the prosecution proved its case beyond a reasonable doubt, we first address the variance between the indictment and the evidence. While Mr. Hezron claim that, this is a fatal flaw, we agree with Ms. Mapunda that the omission in the circumstances of this case did not amount to mistaken identity (error in person) but a mere misnomer (an error in name) which is curable under the overriding objective principle. Our conclusion is based on several factors: One, the death and the surrounding circumstances were never in dispute. Two, aside from her formal name, the deceased was consistently identified as the wife of PW3, which sufficiently established her identity. Three, the oral account of PW1, PW2, and PW3 corroborated her identity at the crime 13 scene. Four, her middle name, surname, and nickname remained consistent throughout the proceedings. Five, the physical examination of the body was conducted at the scene of the crime, leaving no doubt as to the subject of the inquiry. As no prejudice was demonstrated, we find the discrepancy too trivial to raise any reason doubt as to 'identity of the deceased. The complaint is, therefore, dismissed. Having resolved that the misnomer was not fatal, we turn to the core of the conviction, the oral confessions allegedly made by the appellants to PW5 and PW6. While it is a settled principle of law that a conviction may be sustained solely on an oral confession if believed, the credibility and probity of the witnesses delivering such evidence must be beyond reproach. Upon a rigorous examination of the record, we find material contradictions between the testimony of the two arresting officers, PW5 and PW6, which strike at the very root of the prosecution's case. Specifically: PW5 testified that the operation was launched to arrest the third appellant based on intelligence linking him to armed robberies, and that the first appellant was merely apprehended by chance for being in his company. In particular, PW5 testified: "I com m unicated with OCS Nyakanazi Insp. H aji and gave him the num ber o f Abe! so that they can 14 arrest him and any person to be found with him. Inspector H aji worked on m y instructions. He phoned that num ber and it was Nyori. He was asked o f h is feiiow and pointed A b ei who was nearby The two were arrested." Conversely, PW6's testimony explicitly stated that his specific instructions were to track and arrest the first appellant, identifying him as the primary suspect. Specifically, he testified: "I started to trace the suspect whom I was inform ed to be N yori Maandamano. I g o t inform ed through inform ers that N yori Maandamano iives Nyakanazi Mzani\" With the above contradiction between PW5 and P6, the arresting officers, regarding the very target and purpose of the arrest operation, we find it unsafe and dangerous to place reliance on their subsequent claims that the appellants voluntarily confessed. In addition, the findings by the trial judge that one of the confessional statements was fabricated, contains seeds for the destruction of the whole prosecution evidence. For, once a portion of the evidence is found to be manufactured, the integrity of the remaining oral confessions is irreconcilably compromised. It is, therefore, unsafe and a 15 misdirection in law to reject one confession as a fabrication while accepting others that were procured under the same questionable circumstances. Doing so, in our view, is tantamount to making fish of one and fowl of another. In addition, we have independently evaluated the credibility and probity of PW3's testimony regarding the events surrounding the incident. We concur with the submission for the appellant that his account is highly improbable. It is not, in our view, common for the law enforcement officers to, as suggested in his testimony, advise a citizen to abandon his home and family, upon being informed of a threat by bandits with dangerous weapons. As the primary duty of the police is to protect the life and property of the citizenry, advising a man to flee and leave his family defenseless is a claim that shocks the conscience and defies standard operating procedures. In our view, if the police truly believed that the situation was so dangerous that PW3 had to vacate his home, they would have taken immediate action to secure the premises or provide protection to the 16 family. This was not explained in evidence. Perhaps, the testimonials of the OC/CID Kishapu or the acting village chairman, could have resolved the improbability. For undisclosed reasons, however, neither of them was called as a witness. Therefore, under the principle of Adverse Inference set out in Aziz Abdallah v. R [1991] T.L.R. 71, the Court should presume that had these witnesses been called, their testimony would have contradicted PW3. Their absence leaves PW3's testimony as an uncorroborated island of improbable facts. Ultimately, this would affect his whole story on the would be motive behind the crime. The cumulative series of fatal flows as above pointed out is to render the prosecution evidence incapable of proving the case beyond reasonable doubt. The material contradictions between the arresting officers regarding the mission's target, coupled with the trial judge's specific finding of fabricated evidence, irreparably compromises the integrity of the alleged confessions. Furthermore, the exclusion of exhibit P3, the sole link to a conspiracy and financial motive, leaves a critical evidentiary vacuum. When these factors are weighed alongside the inherent improbability of PW3's testimony, they create a reasonable doubt which should have been resolved at the benefit of the appellants. 17 In the final result, the appeal is hereby allowed. As a result, the convictions of the appellants are quashed and the sentences thereof set aside. The Appellants are to be released from custody immediately, unless 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 The Judgment delivered this 13th day of March, 2026 via virtual court, in the presence of appellants present in person, Mr. Elias Rachuonyo Herzon, learned counsel for the 1st appellant, Mr. Augustino Ijan, learned counsel for the 3rd appellant also hold brief Mr. Audax Constantine, learned counsel for the 2n d appellant, Ms. Gloria Ikanda, learned counsel for the 4th appellant, Mr. Jacob Somi, learned counsel for the 5th appellant, Ms. Mboneke Ndimubenya, learned State Attorney for the Respondent/Republic and Mr. Leopord Mabugo, Court Clerk; is hereby certified as a true copy of thi 18