Geofrey Emilio Mwagongo vs Republic (Criminal Appeal No. 607 of 2022) [2026] TZCA 301 (10 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA ( CORAM: MKUYE. 3.A.. RUMANYIKA. 3.A. And AGATHO. J.A.^ CRIMINAL APPEAL NO 607 OF 2022 GEOFREY EMILIO MWAGONGO.................................................. APPELLANT VERSUS THE REPUBLIC....................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Mbeya) (Ntumo. PRM Ext. Juris.') dated the 15th day of November, 2022 in Criminal Sessions Case No. 24 of 2019 JUDGMENT OF THE COURT 18,h February & 10,h March, 2026 AGATHO. 3.A.: The appellant, Geofrey Emilio Mwagongo was arraigned before the Court of Resident Magistrate of Mbeya (Ntumo, PRM - Ext. Juris.) facing a charge of murder contrary to sections 196 and 197 of the Penal Code, Cap 16 (the Penal Code). It was alleged by the prosecution that on 28th August 2018 at Isutu Village in Chimala Ward, Mbarali District, Mbeya Region the appellant murdered one Princess Geofrey. He was found guilty, convicted and sentenced to death by hanging. i The brief facts leading to the present appeal and as background is that the appellant was married to Deborah Emmanuel Wizyo (PW2) since 2017. The couple had a five-month-old child named Princes Geofrey (the deceased). The appellant and PW2 both agree that their marriage was in fire due to ongoing conflicts and grudges, intensified by the appellant's involvement with another woman. On 28th August 2018, around 7:00 PM, while the appellant was seated at home, PW2 saw an incoming SMS on his phone asking, "Geofrey kweli unanipenda na uko tayari kuishi na mtoto wangu? Translated as Geofrey, do you really love me and are you ready to live with my child? He snatched the phone from her. Later that evening, the appellant asked PW2 to hand over the child to him, claiming she would be happier with him, and left with the infant to the appellant's mother. Thereafter, PW2 went to her sister-in-law to report this and returned home around 8:00 PM only to find both the appellant and the child still absent. The appellant's younger brother reported seeing him leaving on a motorcycle with a bag on his back. This person however did not feature as a prosecution witness. PW2 contacted the appellant, who claimed he had gone to Uwanji and taken the child to his second wife in Igurusi. When he became 2 unreachable, a missing child report was filed at Chimala Police Station. The appellant was traced and arrested by militiamen and police on 29th August 2018. Initially, he gave inconsistent stories that the child was with his second wife Sifa (who denied it upon being contacted). Later, he claimed that the deceased was with his parents in Iringa (who also denied). Under intense interrogation, he confessed to killing the child by first stuffing a cloth in its mouth to suffocate it (which failed), thereafter mixing battery acid with juice and administering it to her, leading to the child's death. He buried the body and led the police, PW2, and others to the shallow grave, where the dead body was exhumed. The post-mortem report, (exhibit PE2) by Dr. Peter Winfrid Mwahutinga (PW5) at Mbarali Mission Hospital confirmed deceased's death was caused by Asphyxia. Police investigations (by PW1 - Insp Dickson Luanda, PW3 -CPL Rajab, and PW4 - A/Insp Tito Peter Maganzi) attributed the motive to " wivu wa mapenzl', jealousy of love. Upon closure of prosecution case, the trial court was convinced that the appellant had a case to answer. In his defence, he admitted to killing the child saying it was unintentional as he was in a state of confusion from the marital strife and denied having any grudges against the child. 3 Having heard evidence of both sides, the trial court found the appellant guilty, convicted him of murder under Sections 196 and 197 of the Penal Code and sentenced him to suffer death by hanging. Aggrieved, he now appeals to the Court challenging both the conviction and sentence. The grounds as they appear in the Memorandum of Appeal filed by the appellant on 22n d May 2023 are: 1 . That the trial court erred in law when convicted and sentenced the appellant without taking into account that the prosecution failed to proof malice afore thought as per law. 2. That the trial court erred in law when convicted and sentenced the appellant without evaluating deeply the evidence of PW1 and DW1 the wife and her husband and the whole situation surrounding their marriage. 3. That the trial court erred in law when convicted and sentenced the appellant to suffer death by hanging without regarding his defence. 4. That the sentence imposed upon the appellant by the trial court is very excessive as per his defence which was not considered by the trial court. When the appeal was called on for hearing, the appellant appeared in person and was represented by Mr. Hassan Gyunda, learned Advocate whereas the respondent Republic had the services of Mr. Alex Mwita, learned Senior State Attorney and Ms. Veneranda Masai, learned State Attorney. As preliminary, Mr. Gyunda with leave of the Court made correction on the second ground of appeal in which it was written PW1 instead of PW2. Submitting in support of the appeal, the appellant's counsel conveniently merged the grounds of appeal into two: that the complaint in the first and second grounds of appeal is that the prosecution failed to prove the charge beyond reasonable doubt. Moreover, the third and fourth grounds of appeal essentially fault the sentence imposed for being excessive compared to the appellant's defence. We shall dispose of the first and second grounds of appeal first as they are interrelated before proceeding to the next ground. In respect of the complaint in the first and second grounds of appeal the issue is whether the charge was proved beyond reasonable doubt. Central to that, the appellant complained that the prosecution [failed] to prove malice aforethought. To resolve it, we shall begin by restating the ingredients of the offence of murder and interrogating the evidence on record to draw our findings. There is no dispute that the victim is dead. The doctor who testified as PW5 confirmed that. Equally, undisputed is the fact that victim's death was unnatural. According to PW5, she died of asphyxia - loss of air after being buried. See pages 46 of the record of appeal. As to who killed the deceased, Mr. Gyunda conceded based on the appellant's own admission in the record on pages 50 - 51 that he killed her. However, the learned Advocate disputed presence of malice aforethought contending that there was marital conflict as seen on the appellant's defence which was corroborated by testimony of PW2 (the appellant's wife) as seen on page 39-42 of the record of appeal. According to Mr. Gyunda, the witness testified that there was conflict between the spouses and that the wife found a message from another woman in the appellant's phone stating "Geofrey kweli unanipenda na uko tayari kuishi na mtoto wangu ?" Literally translated as Geofrey, do you really love me and are you ready to live with my child? On the adversary side, Mr. Mwita disagreed and added that the trial court was satisfied with the evidence on record that the appellant killed the child with malice aforethought. Therefore, we will determine whether the appellant killed the deceased with malice aforethought by examining the evidence on record. Indeed, malice aforethought is the mens rea for murder under Section 196 of the Penal Code. It is deemed established under Section 200 of the same Code, if evidence shows intent to cause death or grievous harm, knowledge that the act would likely cause such, or related circumstances. Understandably, and as rightly pointed out by the learned Senior State Attorney, malice aforethought can be inferred from the circumstances surrounding the death. That includes, the nature of weapon used, the body part attacked, the amount of force exerted, number of blows inflicted and nature of injuries sustained, as held in the case of Enock Kipela v. Republic [1999] 77CA 9. Adding to that, the assailant's pre and post incident conducts may equally impute malice. See the case of Nicholaus Mgonja @Makaa v. Republic [2020] TZCA 1781. Looking at the trial court's judgment on page 66 of the record of appeal, the court discussed malice aforethought as the third issue. While quoting Section 200 of the Penal Code seriatim, the trial Judge correctly inferred malice from circumstantial evidence such as the appellant's premeditated acts of taking the child away under false pretences, inconsistent post arrest statements about the whereabouts of the child, use of a cloth to suffocate (failure of which resorted to use of corrosive and poisonous battery acid mixed with juice), and secret burial of the body. Section 200 provides that malice aforethought is established by: a) Intention to cause death or grievous harm. b) Knowledge that the act would probably cause death or grievous harm. As alluded to earlier, several cases such as Enock Kipela (supra) and Shadrack Sospeter @Mkaruka Magangari v. Republic [2025] TZCA 198 to mention a few, list down factors through which malice aforethought of the offender may be inferred. We agree with the learned Senior State Attorney that the evidence of PW1, PW2, PW3 and PW5 on record shows the appellant intended to kill the deceased. For instance, on page 44 of the record of appeal PW4 testified as to how the appellant killed the deceased. We are in fours with Mr. Mwita that the evidence on record including the appellant oral confession before PW4 reveals that the appellant took the infant to Roman Catholic Forest at Chimala and put a cloth on her mouth to suffocate her. But she did not die. He then gave her juice mixed with battery acid liquid and she died. Thereafter, he buried her in the "korongd' the canyon. As correctly put by the learned Senior State Attorney the appellant's oral confession can be relied upon to convict him as we held in John Shini v. Republic [2025] TZCA 226. In the present appeal, the appellant's acts as drawn from the evidence on record, proves that he intended to kill the child. Meaning he killed her with malice aforethought. We thus uphold the trial court's findings and conclusion that the acts of putting the cloth to the child's mouth to block the air flow and administering juice mixed with battery acid liquid implies that the appellant killed the child with malice aforethought. Indeed, in the case at hand malice can be inferred. First, the nature of the weapon used to cause death is a deadly substance, a battery acid which is considered a highly corrosive substance. With no doubt administration of such a dangerous substances to a five-month infant coupled with multiple attempts intended nothing but a brutal killing. The appellant first tried suffocation with cloth and when unsuccessful, he deliberately prepared and administered battery acid liquid and juice. That was barbaric to a vulnerable five-month-old infant. Conversely, the appellant's conduct after the incident also infers malice. He concealed the act by burial and lying to police and the family. That shows consciousness of guilt. 9 As that is not enough, in this case there was premeditation by the appellant. He took the child away at the very chance possible that he got after his wife PW2 went to her sister-in-law after an argument. Mr. Gyunda adamantly reiterated the appellant's defence of "confusiorf that he was confused from marital problems when he killed the child which the trial court considered and properly rejected. The trial Judge rightly noted that the appellant had ample time to "cool down" instead of planning and executing the killing. The post-mortem report confirmed death caused by asphyxia, consistent with internal corrosion from the acid. The appellant had full knowledge that such acts would eventually lead to a heinous death of his own innocent child. According to the record, the evidence that PW2 was very consistent even with the appellant's own defence that he had a fight with PW2 and also the fact that he took the team to where he had buried the body of the child. These factors do away with every possibility of discrediting PW2's account. As a matter of fact, in most cases proof beyond reasonable doubt is inferred from the accused leading to discovery. In one case of Tumaini Daud Ikera v. The Republic [2012] TZCA 296 the Court held: 10 "The fact that the appellant led to the discovery o f the body of the deceased firmly grounds the conviction without a speck of doubt In the light of the above we find no merit in this appeal. We accordingly dismiss the appeal" We do not find any fault in the High Court's judgment in as far as this ground of appeal is concerned. Therefore, this ground flops. Combining the third and fourth grounds of appeal, the learned Advocate submitted that the death was not premeditated. There was provocation. The appellant was provoked. The charge ought to have been manslaughter and not murder. In support, he cited the case of Damian F. Kiula and Another v. Republic [1992] TLR 16 which was reiterated in Kagambo S/o Bashasha v. Republic [2021] TZCA 748 which dealt with the defence of provocation generally. That for defence of provocation to stand: (1) it must pass the objective test of whether an ordinary man in the community to which the accused belongs would have been provoked in the circumstances. (2) the words and actions of the deceased did not amount to legal provocation. The Court also referred to section 201 and 202 of the Penal Code. We noted that Mr. Gyunda's submission on provocation fell apart as he conceded that the link between facts of the case, especially the appellant's testimony and provocation defence is missing. Provocation cannot be transferred to a third person. Here the li appellant murdered the innocent infant who cannot be said to have provoked him. In our view, there are missing links in the purported defence of provocation. It is also incomprehensible that the SMS from another woman is found in the appellant's phone, instead of his wife to be the one provoked, the appellant claims to be. Hence, we accede to Mr. Mwita's discounting of the appellant's defence of provocation. Truly, there was no provocation because there is no evidence that PW2 and appellant were fighting and, in the process, he hit the child. Moreover, even if there were marital conflicts and the appellant was confused, we wonder as to how these could have been transferred to the infant. We hold that the issue of being confused is equally unsubstantiated. There is no evidence that the appellant was suffering from any disease of the mind. Therefore, the trial court properly rejected the appellant's defence. Considering the evidence on record, and after finding no fault in the trial court judgment, we are firm that, it will be a mockery of justice to reduce the charges from murder to manslaughter. In view of the foregoing, we dismiss the above ground for lacking merit. Lastly, a word or two, in the fourth ground in which the appellant lamented excessive sentence [imposed] without considering his defence. Bluntly, the ground is out-of-place. It lacks merit. We concur with Mr. Mwita on this, that since the appellant's malice aforethought in killing the 12 infant was proved and he was convicted of murder, there is only one mandatory sentence as per section 197 of the Penal Code which is death by hanging. Therefore, his argument that the death sentence is excessive, as his defence was not considered is unfounded as the said defence did not shake the prosecution evidence. Consequently, the fourth ground of appeal crumbles. In lieu of the above reasons, the appeal lacks merit. It is accordingly dismissed. DATED at MBEYA this 9th day of March, 2026. R. K. MKUYE JUSTICE OF APPEAL S. M.RUMANYIKA JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL Judgment delivered this 10th day of March, 2026 in the presence of the appellant in person, Mr. Augustino Magessa, learned State Attorney for the Respondent/Republic and Mr. Shafii Kassim, Court Clerk is hereby certified as a true copy of the original. A , - C/M. MAGESA t PEPUTY REGISTRAR m V & W M ^COURT OF APPEAL \P\ m £ :$ m / * / 13