Rahma Almas Mwinyi @ Baby @ Rahma Almas Idd vs Republic (Consolidated Criminal Appeals No. 8559691C of 2024) [2026] TZCA 322 (10 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: MWARIJA. J.A.. MASHAKA. J.A. And ISSA. J.A.^ CONSOLIDATED CRIMINAL APPEALS NO. 8559691C/2024, 507655A/2022, 9821571E/2025, 9821571F/2025, 9821571G/2025 and 9821571H/2025 RAHMA ALMAS MWINYI @ BABY @ RAHMA ALMAS IDD ....... 1 st APPELLANT NDUIMANA OGISTE @ JONAS ZEBEDAYO @ MCHUNGAJI @ NDAISHIME ZEBEDE @ NDAISHIME ZEBEDAYO @ OMARI HASSAN..............................................................2N DAPPELLANT GODFREY PETER SALAMBA . .................................................3 rd APPELLANT CHAMBIE JUMA ALLY . ............. . ...........................................4™ APPELLANT ISMAIL ISSAH MOHAMED @ MACHIPS ...... . .........................5 th APPELLANT LEONARD PHILIPO MAKOI ................................................. 6 th APPELLANT AYOUB SELEMAN KIHOLI . ......... . ................. . .......................7™ APPELLANT ABUU OMARY MKINGIE ...................................................... 8™ APPELLANT HABONIMANA AUGUSTIN NYANDWI @ OGISTEE ................ 9™ APPELLANT MICHAEL DAUDI KWAVAVA ........... . ................................ 10™ APPELLANT VERSUS REPUBLIC...........................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Moonva, J.) dated the 2n d day of December, 2022 in Criminal Sessions Case No. 13 of 2021 JUDGMENT OF THE COURT 7th October, 2025 & 10th March, 2026 ISSA, J.A.: Wayne Derek Lotter, a wildlife conservationist who was working with Protected Area Management System (PAMS) Foundation, a Non- Governmental Organisation, was shot dead at point blank at Kaole and

Haile Selassie junction at Masaki suburb few kilometers from the Dar es Salaam City Centre on 16th August, 2017. The deceased was in the company of a co-director of PAMS, PW10 who travelled together from Kilimanjaro International Airport (KIA) in Arusha to Julius Nyerere International Airport (JNIA) in Dar es Salaam where they were received by their usual driver, Michael Daudi Kwavava (the 10th Appellant) to take them to their residence at Baobab Village at Masaki. On the way, their car was intercepted and blocked by another car at the junction of Kaole and Haile Selassie roads. Two assailants came out of the car armed with a gun and invaded the deceased's car demanding laptops and other documents. After taking what they needed, one assailant shot the deceased. He was pronounced dead upon arrival at the hospital. The police immediately started investigation and a total of twenty- two (22) accused persons including the appellants were apprehended at different times and places and arraigned before the High Court of Tanzania at Dar es Salaam (the trial court) in Criminal Sessions Case No. 13 of 2021. The accused persons faced two counts: conspiracy to murder contrary to section 215 and murder contrary to section 196 and 197 of the Penal Code, Cap. 16. In addition, the 15th , 16th , 17th and 18th accused persons (Abuu Omary Mkingie, Habonimana Augustin Nyandwi @ Ogistee, Abdallah Salum Bawazir @ Bazir and Michael Daud Kwavava) were also

charged with the offence of accessory after the fact to murder contrary to section 213 of the Penal Code. The particulars of the charge leveled against all accused persons were that, between 1s t July, 2017 and 16th August, 2017 while at various places within the United Republic of Tanzania, particularly in the City and Region of Dar es Salaam and Arusha, they jointly and together conspired to commit murder and their intention was put into action by killing Wayne Derek Lotter, the deceased. All the accused persons pleaded not guilty to the charge. On 16th June, 2021, the prosecution entered nolle prosequi against 4 accused persons, hence, the trial proceeded against the remaining 18 accused persons. The prosecution fielded 32 witnesses and tendered in evidence 43 exhibits both physical and documentary to prove the charge. At the closure of the prosecution case, the trial court found that, 7 accused persons, namely: Khalid Almas Mwinyi @ Banyata, Joseph Alexander Lukoa, Gaudence James Matemu, Emmanuel Thomas Sonde, Kelvin Athanas Soko, Samia Saleh Hujat and Almas Swedi @ Malcom had no case to answer. Hence, they were accordingly acquitted. In addition, the count of accessory after the fact to murder was concluded as there was no evidence to support it. As a result, the two counts, namely: conspiracy to murder and murder proceeded against the remaining 11 accused persons.

In their defence, the accused persons distanced themselves from the accusations. They denied knowing each other let alone being involved in the murder. The trial court, on the other hand, found that the prosecution evidence was sufficient to sustain the charge. Its findings were based on the evidence of an eye-witness (PW10), the confessions contained in the cautioned statements of each of the accused persons as well as the incrimination in the cautioned statements of co-accused persons, the exhibits discovered from the confessions as well as other physical exhibits. After a full trial, the 11 accused persons were convicted on both counts as charged, but sentenced only for the count of murder in which they were condemned to suffer death by hanging. Protesting their innocence, the appellants instituted a joint appeal on 8th December, 2022, but later they changed their minds and whereas some of them filed joint appeals, others filed their appeals separately. Whereas the 1st, 4th , 7th and 8th appellants as well as the 2n d and 9th appellants lodged joints appeals, the 3rd , 5th , 6th and 10th appellants and one, Elikana Mafue lodged separate appeals. However, Elikana Mafue who was the 5th appellant withdrew his appeal on 28th September, 2025. The appeal thus remained with 10 appellants as shown above.

The Court consolidated the six appeals into one and the appellants filed a joint supplementary memorandum of appeal containing 51 grounds of appeal in which each appellant indicated his preferred grounds of appeal. In addition, the 2n d and 9th appellants filed an additional supplementary memorandum of appeal containing 10 grounds of appeal; 4 grounds by the 2n d appellant and 6 grounds by the 9th appellant. The memoranda were supported by their written arguments. For reasons that will become apparent shortly we will not reproduce the grounds of appeal in the manner in which they were presented by the appellants' learned advocates. When the appeal was called on for hearing, the 1s t, 4th , 7th and 8th appellants were represented by Mr. Mluge Karoli Fabian, learned advocate, whereas the 2n d and 9th appellants had the services of Mr. Roman Selasini Lamwai, also learned advocate. Mr. Abdul Azizi, learned advocate represented the 3r d appellant while the 5th appellant had the services of Mr. Alex Mgongolwa assisted by Messrs. Alex Mushumbusi and Herman Peter Gervas, also learned advocates. Mr. Josephat Mabula who was being assisted by Ms. Modesta Medard, learned advocates appeared for the 6thappellant while the 10thappellant had the services of Mr. Majura Magafu, also learned advocate. The respondent Republic, on the other hand, had the services of Mr. Yamiko Mlekano, learned Principal State

Attorney assisted by Mr. Fadhili Mwandoloma, Ms. Lilian Rwetabura, Ms. Ellen Masululi, Mr. Haruna Shomari, Ms. Agatha Lumato and Ms. Imelda Mushi, learned Senior State Attorneys and Messrs. Petro Ngasa, Philbert Mashurano, Joseph Mwakasege and Dickson Swai, learned State Attorneys. Reverting to the grounds of appeal advanced by the appellants, for the sake of clarity and convenience we have clustered them into six clusters: One, challenging the information for being defective (grounds 8 and 20). Two, faulting the trial court in the conduct of committal proceedings (grounds 29 and 31 and grounds 2 and 4 in the supplementary grounds). Three, faulting admission of evidence without witness taking oath or affirmation (ground 30). Four, failure to comply with the PGO in conducting the identification parade (ground 4). Five, faulting the trial court for convicting the appellants on the basis of retracted or repudiated confessions without corroboration (grounds 1,13, 14, 16, 18, 31, 32, 33, 36, 38, 41, 42, 43, 47 and 50). Six, failure to prove the case beyond reasonable doubt (grounds 3, 12, 28, 37, 46 and 51). In addition, there are grounds which were raised by the appellants separately which will be addressed separately.

The grounds in the first cluster challenges the information for being defective. The information is the foundation of a criminal case as it lays down the accusations against the accused persons. It was argued by learned counsel for the appellants that, the charge was defective for mentioning the crime scene as Chole and Haile Selassie while the right names of the roads are Kaole and Haile Selasie. Further, it was argued that after the amendment by the prosecution, the witnesses who testified under the defective charge were not recalled. Hence, the proceedings were irregular. Responding to this ground, Ms. Rwetabura submitted that the information was not defective. At page 525 of the record of appeal, the prosecution amended the charge and the reason for the amendment was to add a penal punishment section, which is section 197 of the Penal Code and to correct the name "Chole" to "Kaole". She added that the amendments were minor and there was no need to recall the witnesses. The Court agrees with Ms. Rwetabura that, the information was not defective. Further, the amendments made in the charge were minor and it was not necessary to recall the witnesses. Ground 8 of appeal is found to be meritless and is dismissed.

The second issue touching the defectiveness of the information was raised by Mr. Mabula representing the 6th appellant. He submitted that, the two counts of offences in which the appellants were charged with could not be joined in one information, rendering it duplex. It was his contention that, the consequence is to nullify the proceedings and judgment. He fortified his argument by citing the Court's decision in Joel Alexander and Another v. The Republic [2025] TZCA 370, TANZLII where the Court held at pages 15 and 16 that the appellants did not have a fair trial as the charge was duplex. Mr. Mabula concluded that the count of conspiracy and murder cannot stand together, hence, he prayed for the appeal to be allowed. Responding to this issue, Mr. Mlekano submitted that although the charge was duplex, every offence has its own ingredients and the appellants were not prejudiced by the fact that, they were charged with the two counts. He bolstered his argument by citing the Court's decision in Boniface Thomas Mwimba and Another v. The Republic [2023] TZCA 192, TANZLII where the Court dismissed a similar ground of appeal because the appellant who were represented by advocates was not prejudiced by the fact there were two offences in one charge. Mr. Mlekano urged the Court to adopt the path taken in Boniface case (supra) because in the instant case, the appellants were not prejudiced at all as 8

seen at pages 1321 and 1336 of the record of appeal where the appellants pleaded to all counts. Further he cited the cases of Aliyuu Dauda @ Hassan and 2 Others v. The Republic [2021] TZCA 453 and Raymond Mwinuka v. The Republic [2019] TZCA 315 (both reported in TANZLII) where the appellants were charged with two offences in one charge and were convicted for the grave offence. He implored us to consider the issue of prejudice and analyse whether the appellants were prejudiced by that fact. In rejoinder, Mr. Mabula submitted that the presence of advocates does not remove the duty of the prosecution to file a proper charge or seek for leave to amend. On the issue of prejudice, he submitted that the appellants were prejudiced as the count of conspiracy to murder was pursued to the end and it affected the charge and sentence. When the Court probed him on what would be the consequences, he submitted that normally a re-trial would be ordered, but looking at the evidence in this case which according to him, is not sufficient to sustain conviction, the appellants should be set free. On our part, upon perusal of the information there is no dispute that the appellants were charged with two counts: conspiracy to murder and murder. The question for our determination is whether this fact renders

the charge duplex. The word "duplex" was defined in Director of Public Prosecutions v. Morgan Maliki and Another, [2013] TZCA 2151, TANZLII, where the Court stated: "A charge is said to be duplex if, for instance two distinct offences are contained in the same count, or where an actual offence is charged along with an attempt to commit the same offence." The Court elaborated the concept of duplicity in Adam Angel ius Mpondi v. The Republic [2020] TZCA 1821, TANZLII where it observed: "It is gathered from the record o f appeal that the appellant was charged with one count only. Nonetheless in that one count, he was charged with unnatural offence contrary to section 154(1)(a)(b) o f the Penal Code, Subsection (1) (a) o fsection 154 o f the Penal Code prohibits a person to have carnal knowledge with another person against the order o f nature whereas section 154 (1)(b) o f the Penal Code prohibits a person to have carnal knowledge with an animai. Obviously, the two sections deal with two separate offences. When a charge is contained with two separate offences in one count is said to be duplex," In the instant case, the appellants were charged with two distinct counts: conspiracy to murder and murder. Thus, the charge is not duplex, 10

but it is bad in law as the law discourages charging the offence of conspiracy with another independent offence like murder or armed robbery. In Magobo Njige and Another v. The Republic [2021] TZCA 375, TANZLII the Court stressed that: "It is settled law that, the offence o f conspiracy cannot stand where the actual offence has been committed. In this regard, it was not proper to charge and convict the appellants o f the offence o f conspiracy." Therefore, we cannot agree more with Mr. Mabula that it was wrong in law to charge and convict the appellants of conspiracy and murder in the same charge. The obvious consequence is that once murder was proved, the conspiracy count ought to have died a natural death (see: John Paul @ Shida and Another v. The Republic [2011] TZCA 114, Director of Public Prosecutions v. Morgan Maliki and Another (supra) and Steven Salvatory v. The Republic [2020] TZCA 11 (All reported in TANZLII)). In this case the learned trial Judge proceeded with both counts to the end and convicted the appellants on both counts, but sentenced them only for murder. Mr. Mlekano urged us to disregard the anomaly as the appellants were represented by various advocates and were able to

marshal their defence on both counts, hence, they were not prejudiced by that irregularity. After going through the record of appeal, we agree with Mr.Mlekano that all the appellants were represented by learned advocates and they were able to marshal their defence on both counts and they cross-examined the prosecution witnesses on both counts. Therefore, we are of the firm view that there was no prejudice caused to the appellants and the error was curable under section 388 (now section 411 of the Criminal Procedure Act, Cap. 20 (the CPA) [R.E. 2023]. Our stance is fortified by our decision in Boniface Thomas Mwimba and Another v. The Republic (supra) where the Court observed: "In any case, for completeness's sake only, it was not suggested that in the circumstances o f the case in which the appellants were ably represented by counsel they were prejudiced in any way by facing a trial on the two counts. As submitted by Mr. Ndaskoi, if there was any prejudice, same was too insignificant to vitiate the trial. We respectfully agree that, such an error was curable under section 388(1) o f the CPA..." The 20th ground of appeal, therefore, is found meritless and we dismiss it. On the basis of our holding above, for the purpose of proceeding with the determination of this appeal we will not venture on the count of 12

conspiracy to murder which the appellants were erroneously charged with. Hence, the 37th and 45th grounds of appeal are similarly dismissed. In the second cluster, the appellants were faulting the trial court for not complying with the rules governing committal proceedings. Mr. Lamwai argued that, the committal proceedings which are found on pages 226 to 231 of the record of appeal, show that all the documentary exhibits which were tendered during the trial were not produced and read out. Hence, the omission is fatal and all the documentary evidence are bound to be expunged from the record. He bolstered his argument by citing the Court's decision in Michael Maige v. The Republic [2023] TZCA 54, TANZLII. He concluded that once these exhibits are expunged there is no evidence to support the conviction of any of the appellants. Responding to this ground of appeal, Mr. Mlekano submitted that the ground was misconceived as the correct committal proceedings are found on pages 231 to 247 of the record of appeal not pages 226 to 231 as alleged by Mr. Lamwai. He added that, all the witnesses' statements were produced and read out as appearing at page 238 of the record of appeal and the documentary evidence was produced at page 246 of the record of appeal. He concluded that this ground lacked merit and should be dismissed. 13

In his rejoinder, Mr. Lamwai submitted that the learned Principal State Attorney confused the issue as there were two committal proceedings which were done in this case. He added that, Mr. Mlekano was referring to the first committal proceedings in which the documentary evidence was produced and read. But those proceedings were quashed by the High Court which ordered fresh committal proceedings to be conducted in compliance with section 246 (2) of the CPA. Unfortunately, he argued that that in the second committal proceedings, the committal court did not mention or read the documentary evidence which is fatal and vitiates the whole proceedings. Upon our perusal of the original case file and the record of appeal, we found two committal proceedings. The first committal proceeding was presided by G. N. Issaya, SRM and started from 22n d February, 2021 to 1s t March, 2021 at pages 221 to 231 of the record of appeal. The information was read and explained to the accused persons, but that was all. The cautioned statements of the appellants were not read out and the physical and documentary exhibits were not shown or read out. In fact, the learned Senior Resident Magistrate wrote at page 221 of the record as follows: n Following the order of the High Court, Dar es Salaam in Miscellaneous Criminal Application 14

Cause No. 217/2020 and as it has been submitted by Mr. Wankyo (SSA), the compiiance o f section 246(2) o f the Criminal Procedure Act has been dispensed with so as to protect the identities of the witnesses." With this state of affairs, the respondent Republic applied to the trial court to quash the committal proceedings which did not comply with section 246 (2) of the CPA. On 3r d May, 2021, the trial court quashed the committal proceedings for non-compliance with section 246 (2) of the CPA and issued the following order; "... the Committal Court should take cognizance and be guided by the orders in the High Court Ruling dated 08h December, 2020 by Hon. Miacha, Judge particularly on the issue of witnesses' protection. It is further ordered that, the committal proceedings should be conducted without any undue delay before another competent magistrate preferably within 10 days from today as prayed by prosecution and consented by the Deference." Following the above order, fresh committal proceeding was conducted by R.W. Chaungu, PRM from 27th May, 2021 to 1s t June, 2021 at pages 231 to 249 of the record of appeal. The list of the intended witnesses was produced at pages 241 to 245 of the proceedings whereas

66 prosecution witnesses were intended to be called. Further, there was a list of prosecution exhibits which included: (i) cautioned statements of 2n d , 3rd , 4th , 6th , 10th , 12th , 15th , 16th , 18th , 19th , 20th , 21s t, and 22n d accused persons. (ii) Physical exhibits, which include: a) Two spent cartridges b) Motor vehicle T. 499 DGV (make Toyota Sienta) c) Motor vehicle T. 372 CMY (make Toyota 1ST) d) One spent round of ammunition e) Gun make UZI GUN f) Gun make Rifle g) Hand Grenade h) One (1) Thermos without flask i) One (1) small bag j) One (1) Tanga cement sulphate k) 160 live rounds of ammunition of 9mm caliber after firing testing two (2) and (3) spent cartridges I) Four (4) live rounds of ammunition of 30-06 calibre remained after firing test one (1) and one spent catridge. m)One camera make JVC Model No. GZ-HD 500 BU 16

n) One laptop make Dell S/No. 6CDSF32 o) Flash Disk make Imation (4GB) marked "B" p) Cellular phones q) Handbag containing several items r) Four (4) flash disks. Therefore, the complaint by Mr. Lamwai was misconceived as section 246 (2) of the CPA was complied with. We note that the misconception is understood as it was caused by clerical errors appearing from pages 227 to 231 of the printed record of appeal. The printed record shows that, Issaya, SRM conducted the committal proceedings from 1s t August, 2021 which implies his committal proceedings was the second one, but when the Court perused the original hand written proceedings the date which he conducted the committal was 1s t March, 2021. With this finding, we are of the firm view that this ground was misconceived and it is hereby dismissed. There was another anomaly raised by Mr. Lamwai that, the committal proceedings and the preliminary hearing were conducted without the aid of an interpreter to assist the 2n d appellant who is a citizen of Burundi and could not understand Swahili language. He argued that the said appellant could not follow what was going on before the trial court. 17

Mr. Mlekano was quick to respond that the interpreter was available throughout the trial including at the committal and preliminary hearing. He contended that, the interpreter was seated between the 2n d and 9th appellants who are of Burundi origin. Upon our perusal of the record of appeal, the Court found there was an interpreter throughout the trial. Even during the committal and preliminary hearing, the interpreter was there though the position he was sitting was not mentioned. We are of the view that this is an afterthought as the 2n d and 9th appellants were all represented during the committal and preliminary hearing. When the committal was conducted on 1s t June, 2021 the 3r d and 16th accused persons who are now the 2n d and 9th appellants were represented by Mr. Lamwai, learned advocate and on that particular day learned advocate Mluge Karoli Fabian was holding brief of Mr. Lamwai. There was no complaint raised about the interpreter who was there in the name of Sakaja Mbuga Sarungi. Therefore, the complaint is an afterthought and is hereby dismissed. In the third cluster, the appellants were faulting the trial court for admitting evidence without a witness taking oath or affirmation. This ground concerns PW3 whom Mr. Fabian and Mr. Lamwai argued that, he did not affirm or take oath before testifying during trial. It was argued that, his testimony has no evidential value and they urged the Court to 18

expunge it from the record of appeal as well as all exhibits tendered by PW3. Mr. Mlekano, on the other hand, was adamant that it was not possible that, what was said happened at the High Court. He submitted that, he was there and all witnesses affirmed or took oath before testifying at the trial court. In determining this ground, we are guided by the principle of law that court's records are deemed authentic and cannot be easily impeached. In Halfani Sudi v. Abieza Chichili [1998] T.L.R. 527 the Court held: "(i) A court record is a serious document It should not be iightiy impeached. (ii) There is always a presumption that a court record accurately represents what happened." See also - Paulo Osinya v. The Republic [1959] EA 353, Shabir F. A. Jessa v. Rajkumar Deogra, [1994] TZCA 48, TANZLII and Hellena Adam Elisha @ Hellen Silas Masui v. Yahaya Shabani and Another [2021] TZCA 669, TANZLII. The Court glanced at the record of appeal and the testimony of PW3, a ballistic expert from page 342 of the record. What is seen at this page is very clear that PW3 did not affirm or take oath. Even after looking

at the original hand written proceedings, the fact remains the same that PW3 did not affirm or take oath before testifying in court. Hence, his testimony has no evidential value. There is no gain saying that the said witness testimony is defective for contravening section 198 (1) of the CPA which provides: "Every witness in a criminal cause or matter shall, subject to the provisions o f any other written law to the contrary, be examined upon oath or affirmation in accordance with the provisions of the Oaths and Statutory Declaration Act." It is the law in this jurisdiction that the evidence of the witness who testified without taking oath or affirmation is invalid and vitiates the whole proceedings. In Catholic University of Health and Allied Sciences (CUHAS) v. Epiphania Mkunde Athanase, [2020] TZCA 1890 the Court stated: "Where the law makes it mandatory for a person who is a competent witness to testify on oath , the omission to do so vitiates the proceedings because it prejudices the parties'case." In addition to that, the record reveals that PW3 tendered the following exhibits which were admitted in evidence: 20

(i) Two Ballistic Reports which was admitted as Exhibit P2. (ii) One Uzi Gun caliber 9mm with Serial No, 084912 marked as exhibit K1 which was admitted as Exhibit P3. (iii) One Rifle Maker 4 Caliber 3006 K2 which was admitted as Exhibit P4. (iv) Bullets K 5164 which was admitted as Exhibit P5. (v) Hand Grenade K 17 which was admitted as Exhibit P7. (vi) Spent Cartridges Q1 & Q2 which were admitted as Exhibit P8. (vii) Bullet Heads Q3 which was admitted as Exhibit P9. (viii) Spent Cartridges T1 &T2 which was admitted as Exhibit P10. (ix) 3 Bullet Heads T61 & T62 which was admitted as Exhibit P ll. (x) Spent Cartridge for Rifle T1 which was admitted as Exhibit P12. (xi) Thermos Blue in Colour which was admitted as Exhibit P13. (xii) Black Bag with Red Strips which was admitted as Exhibit P14. (xiii) Kitenge Blue and White in Colour which was admitted as Exhibit P15. (xiv) Certificate o f Seizure which was admitted as Exhibit P16f and (xv) Photograph Pamphlet which was admitted as Exhibit P17. Following our finding that, the testimony of PW3 has no evidential value since he testified without affirming or taking oath contrary to section 198 (1) of the CPA, his evidence and all the exhibits tendered and

admitted at the trial court are expunged from the record. The 30th ground of appeal has merit and the outcome is that the 21st, 22n d , 23r d and 24th grounds of appeal are inconsequential and thus need not be discussed. The fourth cluster concerns the conduct of the identification parade. Mr. Lamwai argued that, in the conduct of the identification parade PGO 232 (b) was contravened. The identification parade was conducted by PW32 who, according to the learned counsel, was prohibited by PGO 232 (b), as he was the investigator of the case. He added that, since in that identification parade the 2n d appellant was identified by PW10, the parade register should be expunged from the record for contravening PGO 232 (b). In addition to that, Mr. Lamwai argued that the 2n d appellant was identified by voice when he was asked to utter the word "dollar". He submitted that, voice identification is very weak and should be taken with caution. He argued further that, the 2n d appellant was not identified by using physical features as is normally done, and questioned the intensity of light at the crime scene as in the sketch map it was not shown where the light was. He concluded that, the whole identification parade was not proper and prayed the obtained evidence be expunged from the record. Responding to Mr. Lamwai's arguments on that ground, Ms. Rwetabura admitted that PW32 who had the rank of Inspector was part 22

of the investigation team and he was in charge of the Task Force. He argued, however that, PW32 conducted the identification parade in accordance with section 60 (1) of the CPA which governs the identification parade. She added that the PGO cannot override the specific provision of the CPA. To support her argument, she cited the Court's decision in Ibrahim Eston v. The Republic [2024] TZCA 516, TANZLII where the Court stated that identification parade is the creature of section 60 of the CPA. On the issue of identification, Ms. Rwetabura submitted that the 2n d appellant was not identified by uttering the word "dollar dollar" alone instead, PW10 identified him by his physical feature first as seen at page 504 of the record of appeal and the utterance of the word "dollar" was an additional confirmation. She prayed for this ground to be dismissed for lack of merit. Our starting point in the determination of the arising issue in this ground is section 60 (1) of the CPA which provides: "Any police officer in charge o f a police station or any officer investigating an offence may hold an identification parade for the purpose of ascertaining whether a witness can identify a person suspected o f the commission o f an offence."

The purpose of holding identification parade under section 60 (1) of the CPA is to enable the investigator to ascertain whether a witness can identify a person alleged to have committed an offence. The controversy surrounding the application of section 60 (1) of the CPA and the PGO 232 (b) was put to rest in Zilam Hamis v. The Republic [2024] TZCA 504, TANZLII where the Court stated: "Principally, an identification parade conducted during investigation by poiice officers is not substantive evidence. It is meant to testa witness' aiieged visual identification o f a suspect during the commission o f a crime. This is dearly provided for in section 60(1) o f the CPA that an investigative officer may hold an identification parade for the purpose o f ascertaining whether a witness can identify a person suspected o f the commission of an offence. For the identification parade to have a probative value, it must comply with the laid down procedure set out in PGO 232 issued by the Inspector General..." Therefore, there was no violation done by PW32 when he held an identification parade in which the 2n d appellant was identified. It was an ascertainment on whether PW10 really identified the 2n d appellant at the scene of crime. 24

On the identification, PW10 identified the appellant at the scene of crime, she testified that the man was of average size, African, light skinned with very distinct feature on his face as he had a big forehead and distinct chick bones and nose. As to his clothes, PW10 averred that he was wearing khaki clothes. She added that she was able to see all those features as the light was very bright and intense from security lights from the nearby buildings, street lights and light from their laptops before the same were grabbed. Furthermore, she stated that the light enabled her to see clearly the man who shot Mr. Wayne as he was very near to her. Having re-evaluated the evidence, we agree with the learned trial Judge that the appellant was identified at the scene of crime and the identification was confirmed by the identification parade. Therefore, these grounds of appeal lack merit and are dismissed. The issue for determination in the fifth cluster concerns retracted and repudiated confessions of the appellants. All the learned counsel argued that the cautioned statements of the appellants which contained confession were either repudiated or retracted and cannot thus form the basis of conviction without being corroborated with independent evidence. They added that, in this case, there was no independent 25

evidence and the trial court misdirected itself in relying on the retracted or repudiated cautioned statements to be corroborative of each other. Expounding on this ground, Mr. Fabian submitted that the cautioned statement of the 1s t appellant (exhibit P19) was retracted and repudiated, but it was the basis of her conviction. He added that if it is expunged from the record, there is no evidence connecting the 1s t appellant with the death of the deceased. Similarly, he argued, the same applies to the 4th , 7th and 8th appellants. Mr. Lamwai also argued this ground. He submitted that, the cautioned statement of the 10th appellant was retracted, but it was used in convicting the 2n d appellant, which was wrong in law. He contended further that, the 9th appellant was also mentioned in the cautioned statement of the 1s t appellant which was also retracted, but acted upon by the trial court. On his part, Mr. Mushumbusi submitted that, the 5th appellant faced the same fate. He was convicted using the cautioned statement of the 3r d and 6th appellants (exhibits P36 and P38 respectively) which were repudiated and in fact did not incriminate the 5th appellant. He added that, the cautioned statements did neither link him to other appellants nor to the death of the deceased. To support his contention, he cited the 26

Court's decision in Ndalahwa Shilanga and Others v. The Republic [2011] TZCA 159, TANZLII. Mr. Mabula also challenged the finding of the trial court based on the cautioned statements. He submitted that, the 6th appellant was convicted because of his cautioned statement as well as the cautioned statements of other appellants, which is contrary to the law. He cited the case of Ali Salehe Msutu v. The Republic (1980) T.LR. 1 to support his argument. He added that there was also no corroboration of the retracted statements which again was wrong in law. He relied on the Court's decision in Muhidini Mohamed Lila @ Emolo and 3 Others v. The Republic [2018] TZCA 687, TANZLII. Mr. Magafu, on his part, submitted that the 10th appellant was convicted because of three pieces of evidence: his own cautioned statement (exhibit P35) which was retracted, the statement of PW10, an eye witness who testified that it was possible that the 10th appellant was involved and the statement of the 2n d appellant in his defence. He submitted that the evidence was not sufficient to sustain the 10th appellant's conviction. He stressed that exhibit P35 was received illegally because whereas the statement is dated 8th May, 2020 the 10th appellant was arrested on 12th May, 2020, which indicated that the cautioned 27

statement was written before he was arrested. He added that, because the other appellants denied knowing the 10th appellant, his cautioned statement required corroboration. To bolster his argument, he cited several cases including: Mashimbo Dotto @ Lukubanija v. The Republic [2014] TZCA 271, TANZLII, Augustino Mponda v. The Republic [1991] T.L.R. 97, Selemani Rashid and Others v. The Republic [1981] T.L.R. 252 and Issa Mustafa Gora and Another v. The Republic [2022] TZCA 638, TANZLII. The learned advocates concluded that, as the cautioned statements were not corroborated by independent evidence there was no sufficient evidence to sustain the charge of murder. They implored the Court to allow the appeal and set the appellants free. The learned Principal State Attorney opposed the arguments made by the learned counsel for the appellants maintaining his stance that, the case was proved beyond reasonable doubt against the appellants. Submitting in reply, Mr. Mlekano argued that the evidence which was used to sustain the convictions fell into three groups: the 43 exhibits (physical and documentary) which were tendered in evidence, the direct evidence of PW10 and the evidence of the appellants themselves in terms of cautioned statements. Regarding the evidence of the appellants, he 28

submitted that the evidence was gauged and a trial within trial was conducted by the trial court which admitted them after satisfying itself that they were voluntarily made. He concluded that a good witness is the one who confess freely. He fortified his point by citing the Court's decision in Jumanne Ahmad Chivinja and Another v. The Republic [2021] TZCA 750, TANZLII. In addition, Mr. Mlekano submitted that, a confession can be admitted without corroboration and to substantiate his point he cited the case of Juma Omary Kibwana Msabila and 2 Others v. The Republic [2025]TZCA 731, TANZLII. Expounding on this point, Mr. Mwandoloma submitted that, with respect to the 1s t appellant there was nothing wrong in using her cautioned statement which led to the discovery of various weapons hidden at the Ngazija graveyard. To support this argument, he cited the case of Andius George Songoloka and 2 Others v. the Director of Public Prosecutions [2017] TZCA 369, TANZLII. Further, he submitted that the 1s t appellant was also convicted on the strength of the testimony of PW5 and PW7 the police officers who were present at the Ngazija graveyard where the said weapons were recovered as well as the photographs of the incidents (exhibit P17) which were admitted in evidence without objection, 29

Regarding the cautioned statements of the 7th and 8th appellants (exhibits P40 and P41), he submitted that they were received without objection and the trial court was right in convicting them on that basis. Regarding the cautioned statement of the 4th appellant (exhibit P39), Mr. Mwandoloma admitted that the statement was objected, but it was admitted after trial within a trial. Therefore, the trial court was right in using them in its analysis. Answering the complaint of the 5th appellant, Mr. Shomari admitted that, there was no direct evidence against him, but he argued that he was convicted on the basis of the cautioned statement of the 3r d and 6th appellants which were legally obtained. Regarding the 6th appellant, Mr. Mwakasege submitted that in his defence the said appellant contended that, he did not record a cautioned statement, but in this appeal, he submitted that it was recorded involuntarily. The learned State Attorney argued that, this is an afterthought and to support his argument, he relied on the Court's decision in Nzwelele Rugaika v. The Republic [2022] TZCA 423, TANZLII. On our part, these grounds of appeal will be determined conjointly with the last cluster on whether the prosecution case was proved beyond reasonable doubt. In the course of discussion, we will also consider the 30

separate grounds of appeal for each appellant. Our starting point in that endeavour is the law governing confession. The position of law was long settled in a celebrated case of Tuwamoi v. Uganda [1967] E.A. 91 which has been followed religiously in this country. In that case, the defunct Court of Appeal of East Africa stated: "... in order for any confession to be admitted in evidence, it must first and foremost be adjudged voluntary. I f it is involuntary that is the end o f the matter, and it cannot be admitted. I f it is adjudged voluntary and admitted but it is retracted or repudiated by the accused, the court wiii then as a matter o f practice look for corroboration. But if corroboration cannot be found, that is, if the confession is the oniy evidence against the accused, the court may find a conviction thereon, if it is fuiiy satisfied that the confession is true". (Emphasis Supplied) In AN Salehe Msutu v. The Republic (supra), the Court summarised the position of law in the following words: "a trial court should accept any confession which has been retracted or repudiated with caution, and must before founding a conviction on such a confession be fuiiy satisfied in all the circumstances o f the case that the confession is 31

true. The same standard o f proof is required in aii cases and usuaiiy a court wiii only act on the confession if corroborated in some materia! particular by independent evidence accepted by the court. But corroboration is not necessary in iaw and the court may act on a confession alone if it is fully satisfied after considering ail the material points and surrounding circumstances that the confession cannot but be true. "(Emphasis Supplied) Thirty-four years later, in the case of Mashimba Dotto @ Lukubanija v. The Republic (supra) the Court observed: "... the Judge was certainly correct in saying that under normal circumstances a conviction could safely He so long as the court warns itself on the danger o f acting on the statement without corroboration. It is trite iaw that as a matter of practice, a conviction would not necessarily be illegal but it is a matter o f practice in such cases for a trial court to warn itself and if the trial is with the aid o f assessors to direct them on the danger o f convicting without corroboration." Regarding the confession of a co-accused, section 33 of the Evidence Act, Cap. 6 (the Evidence Act) provides: 32

"33. (1) When two or more persons are being tried jointly for the same offence or for different offences arising out o f the same transaction , and a confession o f the offence or offences charged made by one o f the persons affecting himself and some other o f those persons is proved the court may take that confession into consideration against that other person. (2) Notwithstanding subsection (1), a conviction o f an accused person shall not be based solely on a confession by a co-accused. (3) N/A." (Emphasis Supplied) The words "may take into consideration" in subsection (1) of section 33 of the Evidence Act was put to test in Anyuma Omolo v. The Republic [1953] 20 EACA 218 and the defunct Court of Appeal of East Africa observed: " take into consideration means that such evidence is o f the weakest kind and can only be used as lending assurance to other evidence against a co-accused." See also Lubejele Marina and Another v. The Republic [2008] TZCA 13.

Furthermore, in Selemani Rashidi and Others v. The Republic (1981) T.L.R. 252 the Court puts everything in its perspective. It observed: "It is a trite principle o f law that as a matter of practice accomplice evidence requires corroboration to support a conviction and further that as a matter o f practice conviction should not be based solely on the confession o f a co accused. " As the position of law is as clear as blue sky, let us now delve on the analysis of the cautioned statements of the appellants in the instant appeal in the light of the settled position of law that, as the first appellate court, we have the responsibility to reevaluate the evidence and arrive at our own conclusion. (See - Juma Kilimo v. The Republic, [2012] TZCA 51, TANZLII). In our analysis we will start with the 1s t appellant, Rahma Almas Mwinyi @Baby @ Rahma Almas Idd who, according to the prosecution recorded a cautioned statement (exhibit P19) which contained a confession. Unfortunately, the 1s t appellant retracted the said confession as she alleged that she signed it because of torture and threat. The contents of the said confession reveal that she met the 2n d , 3r d and 8th appellants at her house and she cooked for them. The incriminating part 34

in the said cautioned statement is the guns, bullets and grenades which were kept in her house and upon hearing that his brother has been hijacked, she went to bury them at the Ngazija graveyard. After the Court has expunged all the evidence adduced by PW3, which included all those weapons and the ballistic report, and the fact that Maganga, the caretaker of the graveyard, who was said to have assisted to locate and witnessed the recovery of the weapons did not testify at the trial court, this Court is of the view that there is no established link between the weapons alleged to have been found at the graveyard and the involvement of the 1s t appellant in the murder of the deceased. Therefore, the confession of the 1s t appellant is not sufficient to sustain a conviction for murder against her. The other evidence connecting the 1s t appellant to the offence of murder as found by the trial court was that she was implicated by the cautioned statement of the 2n d appellant (exhibit P27) where he stated that he was left at Karama's home with the 1s t appellant and was assured by Karama not to worry since the 1s t appellant knew the whole plan. This cautioned statement suffers from three anomalies: one it was a hearsay, two, it was a confession of a co-accused, and three, it was repudiated. Further, the 3r d appellant also stated in his cautioned statement (exhibit P36) that after the incident there was a share of the 1s t appellant which 35

was TZS. 1,000,000.00, but it was kept by Fahamu Karama. This again is a hearsay and there was no proof to establish that the money was given to the 1s t appellant. Another piece of evidence connecting the 1s t appellant was the cautioned statement of the 10th appellant (exhibit P35) which explained that the 1s t appellant was among the planners in committing the offence. The statement does not explain her role in the commission of the murder. In addition, the cautioned statement of the 3r d and 10th appellants were either repudiated or retracted and being co-accuseds in the trial, they cannot solely form the basis of conviction for murder. All in all, the Court is left with the task of fiddling little details about the involvement of the 1s t appellant. Therefore, it is our finding that the prosecution failed to prove its case against the 1s t appellant beyond reasonable doubt and her appeal is, therefore, allowed. Turning to the 2n d appellant, Nduimana Ogiste @ Jonas Zebedayo @ Mchungaji @ Ndaishime Zebede @ Ndaishime Zebedayo @ Omari Hassan his cautioned statement (exhibit P27) reveals that he participated in various meetings for the purpose of eliminating the deceased and some of the meetings were held at Karama's house. Although, the 2n d appellant repudiated his confession, it was corroborated by other pieces of evidence. There is an eye witness (PW10) who identified him at the scene of crime. She gave his description as well as his attire on that fateful night. 36

PW10 also recognized him by his accent. On the day of the incident, the 2n d appellant demanded dollars from the deceased and PW10. As he uttered the words " dollar " his accent was peculiar, hence, during the identification parade, PW10 asked him to utter the word "dollar" and when he did, she was satisfied that it was the accent she heard on that particular night. Furthermore, PW10 narrated that the deceased was shot on the chin by the 2n d appellant at point blank and the post-mortem examination report (exhibit PI) confirmed that the deceased was shot on the chin and a bullet was found lodged in his mouth. Therefore, the post mortem examination report also corroborated the confession of the 2n d appellant. See-Umalo Mussa v. The Republic, [2009] TZCA 91, TANZLII. Furthermore, the 2n d appellant was implicated by the cautioned statements of other appellants, namely: the 3r d appellant (exhibit P38) and the 7th appellant (exhibit P40). Therefore, this Court finds that there is sufficient evidence to connect the 2n d appellant with the murder of the deceased. Now, we feel we should take a look at the separate grounds raised by the 2n d appellant. The first complaint concerning ground 9 of appeal is that, exhibits P20, P21, P22, P23 and P24 which were tendered by PW15 37

and not objected by the defence counsel were admitted without informing or seeking 2n d appellant's opinion. Responding to this ground, Ms. Rwetabura submitted that the 2n d appellant as well as other appellants were represented by advocates and no objection was raised by the advocates. We agree with her that, it is the procedure and we find this ground meritless and we dismiss it. Secondly, in the 10th , 11th and 15th grounds of appeal, the 2n d appellant was complaining about the video footage which was recorded at JNIAand admitted as exhibit P ll. The complaint had three limbs: one, that PW15 testified that the footage was put in a flash disk (exhibit P22) model "Kingstone" while the disk tendered at the trial court was of "Imation" model. Two, the 2n d appellant faulted the trial Judge for allowing the JVC camera which was used in recording confession to be admitted as exhibit P37 without informing the 2n d and 3r d appellants about the danger of what was recorded when the said recording was obtained contrary to Electronic Transaction Act, 2015. Three, that he was not cautioned before the recording commenced at Oysterbay Police Station in the form of a press conference and worse it was not played during the committal proceedings for the 2n d appellant to know the contents of the evidence against him. 38

Starting with the first limb, Ms. Rwetabura admitted that there was a contradiction on the model of the disk, which PW15 clarified that he made a mistake while writing the model of the disk. Regarding the second limb, she submitted that the 2n d appellant was represented by an advocate, hence, the trial Judge had no duty to inform him when to object or not. Again, we agree with her that the task of defending the appellants was in the hands of the advocates for defence and the trial Judge did not have the duty of stepping into the shoes of the appellant's advocate. Regarding, the admission of JVC Camera (exhibit P37) it was objected by the defence and it was admitted as gathered at page 727 of the record of appeal after a trial within a trial had been conducted and the learned trial Judge satisfied herself that it was voluntarily taken. As to the third limb, the Court agrees with the 2n d appellant that the same has merit. The exhibits like video camera (exhibit P37) and the flash disk (exhibit P22) were listed during committal proceedings as physical item only. They were not played or their contents explained, hence, they violated section 246 (2) of the CPA which requires both listing and reading of the documentary evidence. Therefore, with this violation, the Court has no option but to expunge exhibits P22 and P37 from the record of appeal. However, despite the expungement of exhibit P22 and P37, the Court is 39

of the firm view that there is enough evidence as explained above which proved the charge against the 2n d appellant beyond reasonable doubt. Regarding the 3r d appellant, Godfrey Peter Salamba there is a cautioned statement (exhibit P36) in which he confessed to have participated in the plan to murder the deceased. Although the 3r d appellant repudiated his confession, he was also implicated by the cautioned statements of other appellants, namely: the 2n d appellant (exhibit P27) and 7th appellant (exhibit P40). The 3r d appellant has also raised several additional grounds of appeal in terms of grounds 16th , 17th , 19th , 26th , 27th and 30th. In the 16th ground of appeal, he complained that the cautioned statement was admitted during trial within a trial in the presence of assessors. Responding to this point, Ms. Lumato took us to page 958 of the record of appeal which revealed that the assessors were not there. Further, the 3r d appellant was faulting the learned trial Judge for allowing PW25 to testify without affirming or taking oath. However, when the Court perused the original hand written proceedings, it found that PW25 did take oath and the typed proceedings contained a clerical error. Therefore, the cautioned statement of the 3r d appellant was correctly admitted into evidence. This ground lacked merit and we dismiss it. 40

In the 17th ground of appeal, the 3r d appellant complained about exhibit P37. This ground need not detain us as we have already expunged the said exhibit from the record of appeal. In the 19th ground of appeal, the 3r d appellant complained about the notice of an additional witness which was not admitted as evidence. Ms. Lumato correctly submitted that the notice of an additional witness is not an exhibit and the appellants had no objection to the said notice. We agree with Ms. Lumato and this ground is similarly dismissed for lack of merit. In the 25th ground of appeal, the 3r d appellant faulted the trial Judge for believing that, the 3r d appellant led the police to the arrest of 4th and 7th appellants yet there was no evidence of detention register from KIA Police Station or Arusha Police Station which suggest that the 3r dappellant was detained there. Responding to this complaint, Ms. Mushi submitted that it was not the 3r d appellant who led the police to the arrest of 4th and 7th appellants instead it was the 2n d appellant as seen at pages 771 to 772 of the record of appeal. Further, she admitted that there is no detention register at KIA Police Station, but that does not affect the prosecution case in any way. She prayed for this ground of appeal to be dismissed and we do so as we find it meritless because it was the 2n d appellant who led to the arrest of 4th and 7th appellants and not the 3r d appellant. 41

In the 26th ground of appeal, the 3r d appellant was complaining that his defence of alibi was not considered by the trial court. Ms. Mushi responded that, the notice of alibi was considered by the trial court at page 2351 of the record of appeal, but it found that it was a lie. The wife of the 3r d appellant came forward and testified that they were not living together, and in fact he was not at home. Therefore, we are of the firm view that the learned trial Judge was correct in not giving weight to that defence of alibi. This ground is similarly dismissed for lack of merit. In the 27th ground of appeal, the complaint is that when PW27 testified in court, there was only one assessor. PW27 recorded the cautioned statement of the 4th and 6th appellants. The record of appeal is very clear that he testified on 1s t August, 2020 in the presence of two assessors: Saleh Chautundu and Sophia Isike. Therefore, the ground is baseless and is dismissed. In the 30th ground of appeal, which is the last ground for the 3r d appellant, he complained that witness DW3 for the defence testified without taking oath. DW3 is the 3r d appellant himself who testified on 6th October, 2022 and he took oath before testifying at the trial court. This ground also lacks merit and is dismissed. By and large, we agree with the trial learned trial Judge that the 3r d appellant was involved in the murder of the deceased and the prosecutions was able to prove the charge 42

beyond reasonable doubt against him for driving the motor vehicle which intercepted the motor vehicle boarded by the deceased and PW10 and identified by the 10th appellant. The 4th appellant, Chambie Juma Ally was convicted based on his cautioned statement (exhibit P39) in which he confessed that, he was involved in the plan to commit the offence. As he was a taxi driver, he played a major role in informing the other accomplices who were in Dar es Salaam that indeed the deceased and his co-director were on their way to Dar es Salaam. Unfortunately, this confession was repudiated and there was no corroborating evidence to support the conviction. Therefore, the Court is of the view that it is unsafe to convict him of murder on the basis of the repudiated confession. Hence, we are constrained to find that the prosecution failed to prove the case against him beyond reasonable doubt. His appeal is thus allowed. As for the 5th appellant, Ismail Issah Mohamed @ Machips, the police did not record his cautioned statement, hence, he did not confess to have participated in the plan for the murder of the deceased. He was implicated in the offence by the cautioned statement of the 6th appellant, Leonard Philipo Makoi who was contacted by the 5th appellant at Arusha to look for a person who could murder the deceased. He was also implicated by the cautioned statement of Allan Elikana Mafuwe who is not 43

party to this appeal and in the cautioned statement of 3r d appellant, Godfrey Peter Salamba. According to that statement, when the 5th appellant asked him about the person who had knowledge of the plan to murder the deceased, the 3r d appellant mentioned the 4th appellant who was a taxi driver in Arusha. Therefore, the circumstances of the case against the 5th appellant fall squarely under section 33 (2) of the Evidence Act whereby he was convicted solely on the confessions of the co- accuseds which were also repudiated or retracted. It is our finding that, there is no evidence to support the conviction of the 5th appellant. The prosecution did not prove the case against him to the hilt. In the circumstances, his appeal is allowed. The 6th appellant, Leonard Philipo Makoi recorded a confession statement (exhibit P38) which revealed that he was the coordinator of the plan to terminate the deceased in Arusha and was an active member of the entire plan and was in contact with other members in Dar es Salaam. He attended the meetings in Dar es Salaam and was travelling between Arusha and Dar es Salaam to make sure nothing fails. Although, the 6th appellant repudiated his confession, he was implicated in the cautioned statement of the 2n d appellant (exhibit P27), cautioned statement of 3r d appellant (exhibit P36) and the cautioned statement of the 4th appellant (exhibit P39). All three appellants spoke in one voice that the 6th appellant 44

was in the driving seat in the execution of the plan to murder the deceased. Although, the 6th appellant repudiated his confession as well as the other appellants, but the number of the appellants who confessed on the involvement of the 6th appellant and the fact that, the confession of the 2n d appellant was relied by the Court in founding his conviction as it was corroborated by various evidence including an eye witness (PW10) who saw him at the scene. We are satisfied that the 6th appellant was one of the coordinators, hence, we agree with the learned trial Judge that he was a principal offender involved in the murder of the deceased and the case against him was proved to the hilt. The 7th appellant, Ayoub Selemani Kiholi was a motorcyclist who according to the prosecution, had the duty to ensure that the police would not interfere with the planned crime. From the prosecution evidence, He was physically present at JNIA together with other accomplices in the plan. His cautioned statement was admitted as exhibit P40 in which he admitted to run errands for Karama on that fateful day and that he had carried the 2n d appellant to Karama's house and was aware of the meetings that were held at Temeke and Kinondoni. The cautioned statement of the 7th appellant was admitted without any objection. Therefore, the confession was not repudiated or retracted. Hence, it was 45

right for the learned trial Judge to base his conviction on the said confession and we do not find any reason to disturb the conviction. The same can be said about the 8th appellant, Abuu Omary Mkingie whose cautioned statement (exhibit P40) was admitted without any objection. From the prosecution evidence, his duty towards accomplishing the murder plan was to make sure that the ride of the deceased's car and that carrying the assassin was intact and safe and in case of emergency, he was to inform them so that they could easily escape. The 8th appellant participated in the plan meetings that took place at the 1s t appellant's residence. Again, we agree with the learned trial Judge that the case against him was proved to the hilt. The 9th appellant, Habonimana Augustin Nyandwi @ Ogistee was convicted for murder on the basis of two pieces of evidence. The first is his own cautioned statement (exhibit P34) in which he confessed to have purchased the weapons from Burundi which he handed them over to the 2n d appellant and was used for the deceased's execution. The second piece of evidence is the cautioned statement of the 1s t appellant that the 9th appellant participated in the meeting plan held at her house. All these two confessions were retracted or repudiated and there is no other evidence to connect him with the murder. With respect to the purchased 46

weapons, there was no connection to show that, they were the ones used in the commission of the offence as the 2n d appellant's confession showed that he carried the weapons himself from Burundi to Dar es Salaam. The adduced evidence is, in our considered view insufficient to sustain the conviction for murder. It is our finding that, the prosecution did not prove the case against him beyond reasonable doubt. Hence, his appeal is allowed. The 10th appellant, Michael Daud Kwavava was a person who took the deceased and his co-director from the JNIA and their destination was their house at Baobab Village at Masaki, Dar es Salaam; it was at the junction of Haile Selasie and Kaole roads when their car was intercepted and blocked by the car driven by the 3r d appellant and the aftermath was to commit murder of the deceased in cold-blood. The 10th appellant recorded a detailed cautioned statement (exhibit P35) in which he narrated the plan for the murder. Although, the 10th appellant repudiated his confession, it was corroborated by PW10 with respect to the conduct of the said appellant. First, he took a different route than the one he normally takes while going to the deceased's house. Taking into consideration that the 10th appellant has been driving the deceased and PW10 for the past ten years their usual route was known by PW10. 47

Second, the 10th appellant kept the glass window slight down to enable the assassin, the 2n d appellant to execute his plan easily. The 10th appellant also raised separate grounds of appeal in terms of 46th , 48th and 49th grounds. In the 46th ground, the 10th appellant argued that there was an infraction of section 112 (1) of the CPA as the learned trial Judge did neither show the points of determination nor evaluate the evidence and make a finding of facts thereon. Responding to this ground, Ms. Masululi submitted that, the judgment of the learned trial Judge consisted of points of determination and for the case of 10th appellant it was his involvement in the murder of the deceased. The 10th appellant was convicted based on his own confession which was sufficient to convict him. She cited the case of Juma Omary Msabila (supra). We agree with Ms. Masululi that the confession of the 10th appellant was corroborated by his conducts which were explained above. Therefore, this ground is meritless and we dismiss it. In the 48th and 49th grounds of appeal, the 10th appellant wondered why it took the police a long time to arrest him when he was mentioned by his co-accused very early in their cautioned statements. Further, he submitted that, the learned trial Judge did not consider his subsequent conducts which were inconsistent with a guilty mind. He relied on the fact 48

that, he went to Oysterbay Police Station when he was called by police officers. Having considered the points raised by the 10th appellant in his separate grounds of appeal, we agree with him that, he was present at the crime scene when the incident took place but he was arrested after almost two years. Considering the nature of the case which was complex and involved many people, it is the call and duty of the prosecution on who to charge and who to make a witness. The trial court's duty was to evaluate the evidence presented before it to prove who murdered the deceased. In this case, the trial court was satisfied that the 10th appellant was involved in the plan to murder the deceased. We are similarly convinced that he was part of the plan to murder the deceased. Hence, the prosecution proved the case against him beyond reasonable doubt. Cumulatively, this Court is of the firm view that the prosecution was not able to prove the murder offence against the 1st, 4th , 5th and 9th appellants. The evidence against them fell short of the required standard of proof and having allowed their appeals, their convictions are accordingly quashed and the sentences imposed on them are set aside. We order their immediate release from prison unless they are being held there for another lawful cause. As for the 2n d , 3rd , 6th 7th , 8th and 10th appellants, the prosecution was able to prove the offence of murder 49

against them beyond reasonable doubt. Their appeals are dismissed and the sentences imposed on them are sustained. DATED at DAR ES SALAAM this 6th day of March, 2026. A.G. MWARDA JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 10thday of March, 2026 in the presence of Mr. Mluge Karoli Fabian, learned counsel for the 1s t, 4th , 7th, 8th for the Appellants, Mr. Romani Thelasin Lamwai, learned counsel for the 2n d and 9th Appellants, Mr. Abdul Azizi, learned counsel for the 3r d Appellant, Mr. Kennedy Mgongolwa, learned counsel for the 5th Appellant, Mr. Josephat Mabula, learned counsel for the 6th Appellant, Ms. Glory Baltazari Kileo, learned State Attorney for the Respondent/Republic through Visual Link and Ms. r MirtSsitemba, Court Clerk; is hereby certified as a true copy of the ori DEPUTY REGISTRAR COURT OF APPEAL 50