Jacob Enock Shindika & Others vs Republic (Criminal Appeal No. 75 of 2023) [2026] TZCA 295 (11 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: MKUYE. J.A.. RUMANYIKA. J.A. And AGATHO. J.A.) CRIMINAL APPEAL NO 75 OF 2023 JACOB ENOCK SHINDIKA........................................................1 st APPELLANT BOAZ MUDI SAIDI .................................................................. 2 nd APPELLANT RASHIDI RAMADHANI MWAULEZI..........................................3 rd APPELLANT JAPHET BONIPHACE SANGA................................................... 4™ APPELLANT VERSUS THE REPUBLIC........................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Mbeya) (Ebrahim. J.) dated the 30th day of December, 2022 in Criminal Sessions No. 07 of 2020 JUDGMENT OF THE COURT 26th February & 11th March, 2026 AGATHO. J.A.: The appellants, Jacob Enock Shindika (the 1s t appellant), Boaz Mudi Saidi (the 2n dappellant), Rashidi Ramadhani Mwaulezi (the 3r d appellant), and Japhet Boniphace Sanga (the 4th appellant), were jointly charged before the High Court of Tanzania at Mbeya with the offence of murder contrary to section 196 of the Penal Code, Cap. 16 R.E. 2022. The charges arose from a violent attack at the residential premises of Luheta Nandi (PW1), a gold buyer operating from Itumbi, Chunya which occurred on 15th August 2018. During the incident, PWl's wife, Mwasi i Mwagembe Kakolo (the deceased), sustained fatal injuries, while PW1 himself and his younger brother, Mgema Nhandi Limbu, suffered severe and permanent injuries. At the trial, PW1 testified that on the material night at about 1930 hours, as he was closing his office, the 1s t appellant, whom he knew prior to the incident, went to his place and inquired about colleagues who had accompanied him the previous day. Shortly thereafter, four young men arrived carrying sand alleged to contain gold and requested his machine for smelting and refining gold (kuchenjua dhahabu). PW1 assented to the request, and after approximately two hours, asked them to leave the sand with him and return the following day as it was getting late. The group pleaded to remain, alleging they had no money for food. PW1 left them to proceed with the work. Later, as PW1 wanted to check their progress the 4th appellant suddenly attacked him with a heavy metal object on the head and continued assaulting him on various parts of his body including on his right hand near his fingers. The 1st and the other appellants went after his wife and young brother. PWl's wife, now the deceased, was repeatedly struck on the head with a machete. The group said they needed money. 2 The 3r dappellant took 30,100,000/= from the wardrobe, undressed his wife in the watch of children and threatened to kill her if he did not add some money to them. They later successfully took 260 grams of gold from his office drawer. When they wanted to leave, they deliberated that they should pierce the eyes of the whole family as they had identified them. The first appellant pierced him around his eyes and as for his wife, he pierced both her eyes and broke her jaws, they did the same to his young brother and left. Thirty-three days later on 17/09/2018, the wife passed away. Her death was confirmed by a post-mortem examination conducted by Dr. William John Mulla (PW3), whose report was tendered as Exhibit PI stating that death was caused by head injury. On it, the date appears as 18th September 2019. The doctor explained it at page 50 during cross examination to be a mere clerical error. The incident was reported at Chunya Police Station, and investigations were led by Superintendent William Paul Nyamakoma (PW6), the then Officer in Charge of the Criminal Investigation Department. The appellants were arrested at different locations and dates between August and October 2018. 3 Following their arrests, cautioned statements were recorded from each appellant by various police officers. Furthermore, identification parades were conducted on different dates, in respect of the second, third and fourth appellants during which PW1 identified them. See- page 41 of the record of appeal. In their defence, all appellants gave sworn testimony denying participation in the offences and raised alibi defences. Each alleged police brutality and fabrication of evidence. Documentary exhibits, including a bus ticket and a Police Form No. 3, were tendered in support of their respective defences. Upon evaluation of the evidence, the trial court convicted all the appellants and sentenced them accordingly. Aggrieved by both the conviction and sentence, the appellants lodged the present appeal with two memoranda of appeal. It suffices to note that the appellants abandoned their memorandum of appeal lodged on 19/05/2023 and a supplementary one dated 08/03/2024. We shall therefore restate grounds of appeal in the last supplementary memorandum of appeal lodged on 20/02/2026 containing eight grounds of appeal as follows: 4 1. That the learned trial Judge erred in law and fact for failure [to note that the prosecution failed] to take appellants to court as soon as practicable after arrest [contrary] to the law. 2. That the trial Judge failed to consider the fact that there was no fair trial as there no right to cross examination by co-accused. 3. The the trial Judge erred in law and fact by convicting the appellants based on PW1 's visual identification, which was insufficient, weak and unreliable. 4. That the trial Judge erred in law and fact for failure to consider the fact that the cautioned statement of the third appellant (exhibit P20 was taken beyond prescribed time. 5. That the trial judge erred in law and fact by relying on retracted cautioned statements [ of] the second and the fourth appellants (exhibits PE3 and PE6). 6. That the trial judge erred in law and fact for failure to draw adverse inference from prosecution omission to call material witnesses named Mgema Nhandi Limbu and Omary Bariadi Mapesa and Itumbi Village Chairman (Madulu) as omission which materially weakened the prosecution case. 5 7. That the appellants' defence case was not adequately considered, resulting in a miscarriage ofjustice. 8. That the prosecution failed to prove the case beyond reasonable doubt At the hearing of the appeal, the respondent Republic had the services of Mses. Naomi Mollel and Hannarose Kasambala, both learned Senior State Attorneys assisted by Mr. Rajabu Msemo, learned State Attorney, the appellants appeared in person and were represented by Mr. Essau Sengo for first appellant, Mr. Chapa Alfred for second appellant, and Ms. Mary Gatuna for third and fourth appellants, all learned Advocates At the outset, Ms. Mollel intimated that they support the appeal based on the second ground in which the complaint is that there was unfair trial as the appellants were denied the right to cross examine each other as co-accused. However, she urged the Court to nullify the proceedings, quash the conviction, set aside the sentence imposed on the appellants and order a retrial. On his side, Mr. Chapa welcomed the concession. But he beseeched the Court to set the appellants at liberty for in his view there are many gaps in the prosecution evidence to ground conviction. He was afraid that if the Court orders a retrial the prosecution will fill gaps in the evidence which will be prejudicial to the appellants. We are enjoined to determine: first, whether the appellant's right to fair trial through representation was infringed upon; and second, if the first issue is answered in the affirmative, whether this is a fit case to order retrial? In other words, whether the evidence on record can ground conviction. The bone of contention therefore is what should be the way forward? Meaning whether this a fit case to order retrial in the perspective of Fatehali Manji v. Republic [1966] EA 343. On the first issue, echoing the complaint in the second ground of appeal, the learned counsel unanimously agreed that ordinarily where there was conflict of interest/legal representation leading to unfair trial, then the retrial is ordered. We perused the record of appeal and confirmed that the first and the second appellants were represented by the same advocate, Mr. Chapa Alfred. Similarly, the third and the fourth appellants were represented by one advocate, Ms. Febby Cheyo. Certainly, that made it impossible for the accused persons to cross-examine each other when adducing their testimonies as seen on pages 156-173 of the record of appeal. Both Mr. Chapa and Ms. Mollel agree that this was prejudicial because the appellants implicated each other in their cautioned 7 statements. For example, the second appellant's cautioned statement mentioned the first, third and fourth appellants as being involved in the commission of the offence as page 249 indicates. On page 250, the record shows that the third appellant's cautioned statement mentioned the first, second and fourth appellants as the ones involved. Likewise, in the fourth appellant's cautioned statement he mentioned the first, second and third appellants. Unfortunately, the trial court relied on these cautioned statements to convict the appellants as clearly shown on page 252 of the record of appeal. In Mussa Emmanuel Daud v. Republic [2025] TZCA 99 which was akin to the case at hand this Court found it prejudicial to rely on the cautioned statement of appellants who incriminated each other without being accorded a fair trial. The Court nullified the proceedings of the trial court and ordered retrial. In the premises, and as held in plethora of authorities, there was unfair trial which prejudiced the appellants for despite incriminating each other they were unable to cross examine each other. See Mohamed Yassin Senjele @Bonge v. Republic [2025] TZCA 1092. As it stands, we are enjoined to determine whether a retrial should be ordered. Outrightly, we are alive to the principle that an order for retrial is only given if interest of justice demands as held in Fatehali Manji (supra). Mr. Chapa sought to impress us with the case of Mohamed 8 Yassin Senjele @Bonge (supra) where the Court after noting the conflict of interest in legal representation that hurled into unfair trial to the appellants, nullified the proceedings of lower courts, quashed the conviction, set aside the imposed sentence and ordered the appellants to be set free as retrial was declined. In his view there are deficiencies in the prosecution case including failure to call key witnesses to testify; delay in arraigning the appellants; and PWl's failure to name the assailants at earliest opportunity. He bolstered it with the case of Mohamed Yassin Senjele @Bonge (supra) in which the appellants were set at liberty because the evidence was scanty to convict them. On the adversary, Ms. Mollel disagreed setting the appellants free. Instead, she implored us under section 6(2) of the Appellate Jurisdiction Act [Cap 141 R.E. 2023], (the AJA) to order retrial so that the irregularity can be corrected. As mentioned earlier, and in our view, ordering retrial depends on the dictates of justice, implying how the shortfalls casted in the grounds of appeal will be resolved. We have revisited the case of Mohamed Yassin Senjele @Bonge (supra) and found that it is relevant to the present case as will be explained in due course. With regards to the grounds of appeal, the first ground is about the # delay to arraign the appellants to the court which should not detain us 9 because both parties to this appeal conceded to it. Looking at the record of appeal, the first appellant was arrested on 12/10/2018 as indicated on page 106; the second appellant was arrested on 16/09/2018 as seen on page 95; the third appellant was arrested on 29/08/2018 as per page 86 while the fourth appellant was arrested on 06/09/2018 as page 130 shows. The appellants were arraigned for the first time before the court on 13/12/2018 as visibly seen on page 4 of the record of appeal. In that regard, the first appellant was arraigned after two months; the second appellant was arraigned after three months; as shown on page 5 of the record of appeal; the third appellant was arraigned after almost four months whereas the fourth appellant was arraigned after three months. We are firm that in absence of any explanation, the above delay was indeed contravention of section 33(2) of the Criminal Procedure Act [R.E. 2023] (the CPA) which requires the accused person(s) to be brought to court as soon as practicable. There are many authorities such as Duma Idindilo Pangalasi v. Republic [2024] TZCA 990 in which the Court held that arraignment of the accused person 21 days later was not as soon as practicable. In the case at hand delay was ranging from two to four months. We understand that the phrase "as soon as practicable" as used in section 33(2) of the CPA depends on the circumstances of the case. Nonetheless, the 10 prosecution must lead some evidence to justify the delay in arraigning the accused person to court. In this case, although Ms. Mollel argued that the delay was justified considering the nature of the offence the appellants were charged with (the offence was murder) whose investigation ordinarily is complicated. Moreover, the appellants were dispersed and arrested from different parts of the country, one in Arusha and another one in Mwanza. Therefore, in her view, two to four months delay is as soon as practicable as per section 33(2) of the CPA. She contended further that the present case involved many people which required ample time for investigation. She also implored the Court to rely on the case of Shabani Ally Athuman v. Republic [2024] TZCA 192 which involved delay of one month to arraign the appellant. However, considering the seriousness of the offence the delay was not considered undue. Therefore, in her view, the case of Mohamed Yassin Senjele @Bonge (supra) was not about serious offence as murder. Nevertheless, the learned Senior State Attorney admitted that in this case the investigators did not say so as the reason for delaying arraigning the appellants. In our view supported by Ms. Mollel's own concession, we think her argument that in the present case the delay of two to four months was as soon as practicable does not hold water because it was not backed up with the evidence on record. Much li as we maintain the decision in Shabani Ally Athuman (supra) that seriousness of the offence (such as wildlife offence) is an acceptable factor in considering reasonableness of the delay in arraigning the accused, each case must be determined basing on its peculiar facts. In the case at hand the last appellant to be arrested took two months to be arraigned in court without any explanation from the prosecution which is contrary to section 33(2) of the CPA. We find the delay to arraign the appellants in this case was unreasonable. In any case, if the investigation was complicated, the prosecution witnesses ought to have explained it. We thus follow our decision in Duma Idindilo Pangalasi (supra) that there was undue delay in arraigning the appellants to the court. Although we agree with the learned Senior State Attorney that Mohamed Yassin Senjele @Bonge (supra) was not about serious offence, like murder, but the record here is silent as to what impeded the prosecution from arraigning the appellants as soon as practicable as required by section 33(2) of the CPA. Another controversy is with regard to the third ground of appeal on identification of the appellants which Mr. Chapa claimed to be weak. On this, the learned Senior State Attorney contended that the appellants were identified by visual and recognition (PW1 testified on pages 37- 41 of the record of appeal). Besides visual identification through light, PW1 12 recognized the assailants for he had seen them several times. Further, the appellants were at his home for some hours refining and processing gold (wakichenjua dhahabu) and there was big sound solar light. That is seen on page 40 of the record of appeal. Ms. Mollel also referred us to the testimony of PW6 on page 94 of the record of appeal testifying that when he visited PW1 at the hospital he told him that he knows the assailants, and he mentioned the name Jacob. She was contented that the identification was proper. Mr. Chapa rejoined that PW1 testified that the assailants went to his home at around 19:30 and that he did not state light's intensity. We hastily reject Mr. Chapa's submission regarding the light's intensity as we noted in the record at page 42 that the lights were 200 Watts which is bright light. Nevertheless, we side with him that PW1 did not give PW6 description of the assailants before identification parade was conducted as it is evident on pages 41, 42 and 43 of the record of appeal. On the other hand, although we would have disagreed with Mr. Chapa's criticism of identification of the culprits because PW1 knew Jacob, but the witness was at times unconscious (see page 40 of the record of appeal), meaning his mind may not have been stable to recollect what transpired at the crime scene. We think, this defect could have been cured by corroborative evidence of his brother (Mgema Limbu) who was conscious had he been called to testify. 13 In connection to the above was the complaint in the sixth ground of appeal that the prosecution failed to call material witnesses especially Mgema Limbu PWl's young brother (mentioned on pages 37-40 of the record of appeal), and Omary Bariadi Mapesa (the landlord). As rightly noted by Mr. Chapa, the learned Senior State Attorney did not respond to this complaint. As alluded to earlier, Mgema Limbu was a key witness because he witnessed the attack while conscious. It is unclear as to why he was not called to testify. As for Omary Bariadi Mapesa (landlord), we find him not to be a material witness as he was not at the crime scene. That said, we are enjoined to draw adverse inference on prosecution case as they failed without any justification to summon Mgema Limbu who is an eyewitness to testify. There is a plethora of authorities that failure to call material witness invites the Court to draw adverse inference to a party that failed to call that witness, in this case the prosecution. See the cases of Jummane s/o Marco v. Republic [2020] TZCA 228; and Idrisa Salehe Mwangobola v. Republic [2025] TZCA 1299. With respect to a complaint in the seventh ground of appeal that the appellants' defences were not considered by the trial court, Mr. Chapa submitted that among the defences was alibi raised by DW1 who tendered a bus ticket, exhibit Dl; the second appellant on his part brought PF3 4 (exhibit D2) written 17/09/2018 showing that he was interviewed 14 (recorded his cautioned statement) on 17/09/2018 claiming he was tortured. The learned Advocate faulted the trial judge for ignoring that defence. On failure to consider the defence of the appellants, we concur with Ms. Mollel that the trial Judge considered the defences from pages 243 to 251 of the record of appeal. She analysed the defence and found that it failed to shake the prosecution case. Intriguingly, the first appellant's defence of alibi was rejected as the bus ticket was held by the trial court not to be genuine as seen on page 243 of the record of appeal. In our view, the issue of the bus ticket was not properly analysed. We are saying so because PW10 testified on record at page 153 that the registration number for motorcycle starts with MC. Hence, the ticket with vehicle registration number T 618 CPD and tendered in court as exhibit D1 cannot be for a motorcycle. Thus, the first appellant's defence of alibi was not strictly rebutted. As for the allegation of torture, that is central to the fourth and fifth grounds of appeal challenging the voluntariness of the appellants' cautioned statements. Briefly, we are in accord with the learned Senior State Attorney that the trial court held at page 248 of the record of appeal that the allegation of torture had no weight because the second appellant said he was tortured in connection with bhang and not murder incident. But we are settled in our view that since these cautioned statements were 15 retracted, it was unsafe to rely on them in grounding conviction as they required corroborating evidence. Lastly, and linked with the eighth ground of appeal that the case was not proved beyond reasonable doubt, the learned Advocate attacked the credibility of PW1 that he failed to name the assailants at the earliest opportunity. This in our view is contentious because the evidence on record shows that PW1 while at the hospital mentioned the name "Jacob" the first appellant to PW6. But we noted that this witness was unconscious as pages 40-41 of the record of appeal reveal. Therefore, the naming of the assailants in the circumstances is unreliable unless his mental state is explained. After all, the doctor who attended PW1 at hospital was not called to testify on the state of his mind considering injuries he sustained during the attack. In the final analysis, although Ms. Mollel as for the way forward implored the Court to order an expeditious retrial, we decline that urge due to above articulated deficiencies in the prosecution case. We are mindful of the fact that a retrial in circumstances of this case would be inconsistent with the interest of justice as amplified .in Fatehali Manji (supra) because here the prosecution will undoubtedly mend the 16 highlighted holes in their case. Certainly, that will occasion injustice on the appellants. In lieu of the foregoing analysis, we allow the appeal, quash the conviction and the sentence is set aside. We further order immediate release of the appellants from prison unless otherwise held for other lawful causes. DATED at MBEYA this 10thday of March, 2026. Judgment delivered this 11th day of March, 2026 in the presence of the appellants in person, Ms. Imelda Aluko, learned State Attorney for the Respondent/Republic and Ms. Jasmin Kazi, Court Clerk is hereby certified as a true copy of the original. R. K. MKUYE JUSTICE OF APPEAL S. M.RUMANYIKA JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL