Civilian Coin Deogratious @ Kisandu vs Republic (Criminal Appeal No. 537 of 2023) [2026] TZCA 286 (9 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA (CORAM: WAMBALI. 3.A.. MAKUNGU. J.A. AND MGEYEKWA. J.A.^ CRIMINAL APPEAL NO, 537 OF 2023 CIVILIAN COIN DEOGRATIOUS @ KISANDU ............................ APPELLANT VERSUS THE REPUBLIC ...... . .......... ........................... . ........................ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Shinyanga) (Matuma, JM dated the 27th day of April, 2023 in Criminal Session No. 37 of 2022 JUDGMENT OF THE COURT 26th February & 9th March, 2026 MGEYEKWA. J.A.: The appellant, Civilian Coin Deogratious @ Kisandu, was arraigned before the District Court of Kahama on a single count of naming a person a witch, contrary to sections 4 and 5 (1) of the Witchcraft Act, Cap. 18 [R.E. 2002]. It was alleged that on 14th and 15th February 2022, at Nyahanga area in Kahama District, Shinyanga Region, he named Raurencia Tundwe a witch, with the intent to cause injury or misfortune. Briefly, the prosecution's case unfolded as follows. PW4, the appellant's mother, recounted that on 14th February, 2022 the appellant accused her of practising witchcraft. He allegedly claimed that she had stolen his "star for success" and that she kept a snake in her house. PW1 stated that on the following morning a disagreement ensued after she refused his request to sell his bed, during which confrontation, he again named her a witch. Her account was supported by Lameck Colinel Kabolola (PW2), the appellant's brother, and Simon Amir Njovu (PW3), also his brother, both of whom were present during the alleged incident. PW2 recounted that on 15th February, 2022 at about 10:00 hours, while at home preparing to take breakfast, the appellant arrived and stated that he wished to sell his bed but that PW4 had refused to permit him to do so. According to PW2, the appellant then turned against PW4 and referred to her as a witch. The matter was subsequently reported to the village office, and the appellant was later taken to the police station. PW3 stated that on the morning of 15th February, 2022, he received a telephone call from PW4 informing him that the appellant had caused a disturbance and that his presence was required at her house. Upon arrival, he spoke to both the appellant and PW2. The appellant reportedly informed him that he intended to sell his bed to obtain money for his own use but that PW4 had declined, whereupon he called her a witch. Japhet John Kaliwa (PW1), the street chairman, recalled that after receiving the complaint on 15th February, 2022, he convened a family meeting in an effort to settle the dispute. It was his account that during that meeting, the appellant reduced into writing an admission of having uttered the impugned words. He further stated that two days later, he was informed that the appellant had persisted in making similar accusations. E. 9246 D/Sgt Dickson (PW5), on 15th February, 2022, he recorded the appellant's cautioned statement at about 12:00 hours which was subsequently tendered in evidence as exhibit PI. At the close of the prosecution's case, the learned trial magistrate ruled that a prima facie case had been established and accordingly called upon the appellant to enter his defence. In his defence, the appellant distanced himself entirely from the alleged offence. He testified that the dispute arose from PW4's persistent interference in his personal affairs. In particular, he asserted that the disagreement between them had been orchestrated by PW4 in an attempt to control or prevent him from conducting his personal matters as he wished. He categorically denied ever referring to PW4 as a witch. At the end of it all, the trial court's findings were to the effect that the prosecution witnesses presented a credible tale that the appellant uttered abusive language toward PW4. Thus, the appellant was sentenced to seven years imprisonment. Aggrieved, the appellant unsuccessfully appealed to the High Court where the trial court's conviction and sentence were upheld. Still undaunted, the appellant has preferred this second appeal. In the memorandum of appeal, lodged on 26th February, 2026th he raised four grounds of appeal which can be paraphrased as follows: one, that the evidence adduced by the prosecution side was not credible and reliable, two, that the sentence imposed and upheld by the first appellate court was excessive and contrary to the law, three, that the cautioned statement was illegal and unlawful and four, that the prosecution has failed to prove the case beyond reasonable doubt. When the appeal was called on for hearing, the appellant appeared in person, unrepresented while the respondent Republic was represented by Mr. Jukaeli Jairo, learned Senior State Attorney. We shall revert to the details of the parties' arguments in the course of resolving the issues of contention. For present purposes, we will begin with the fourth ground of appeal, which, in our view, is dispositive of the entire appeal. On the fourth ground of appeal, the appellant contended that the prosecution did not prove the charge against him beyond reasonable doubt. He assailed the credibility of PW1, arguing that although PW1 claimed to have convened a family meeting and the appellant allegedly confessed and reduced his admission into writing, no such letter was produced in evidence. He maintained that during cross-examination he challenged PW1 to produce the purported letter, but it was never tendered before the court. In his view, the omission to produce that crucial document rendered PWl's account unreliable. The appellant further impugned the validity of the cautioned statement (exhibit PI), upon which the trial court partly relied in convicting him. He argued that the statement was defective as it did not bear his signature on the certification clause and that the signature appearing thereon was not his. He therefore disowned the document in its entirety. In sum, the appellant denied any wrongdoing and maintained that he never referred to PW4 as a witch. He contended that the evidence of PW1, PW2, PW3 and PW4 was insufficient, incapable of sustaining a conviction and that the prosecution had failed to prove the charge to the required standard. He therefore urged this Court to allow the appeal and set him free. In response, Mr. Jairo initially opposed the appeal. He submitted that the prosecution had proved the case beyond reasonable doubt, contending that PW1, PW2, PW3 and PW4 were consistent in their testimony that on 15th February, 2022, the appellant uttered abusive words and referred to PW4 as a witch. 5 When the Court prompted him on the evidence of the prosecution witnesses, specifically PW1 and PW4, as to whether it was consistent, the learned Senior State Attorney conceded that there were discrepancies in the prosecution witnesses' evidence. He clarified that PW1 testified that on 15th February 2022, PW4 informed him that the appellant had called her a witch and that, two days later, PW4 again complained that the appellant had repeated the same allegation. In contrast, PW4 testified that she had informed PW1 on 14th February 2022 that the appellant had called her a witch. However, he argued that the inconsistencies were minor and did not go to the root of the case. Upon further prompting by the Court as to whether those contradictions could properly be described as minor, particularly in light of the evidence that the appellant was arrested on 15th February, 2022, the teamed Senior State Attorney did not mince words. He admitted that the apparent inconsistencies were not minor. He acknowledged that it would have been impossible for the appellant to have committed a further offence at the same place two days after his arrest. He therefore conceded that the contradictions went to the root of the prosecution’s case and materially affected the credibility of PW1 and PW4. As a result, he withdrew his earlier stance and supported the appeal. In his rejoinder, the appellant agreed with the views expressed by the learned Senior State Attorney and had nothing useful to add other than to pray to the Court to set him free. Having heard the parties and carefully considered the record of appeal, the issue for determination is whether the prosecution proved the case beyond reasonable doubt. This being a second appeal, the Court will rarely interfere with concurrent findings of fact made by the courts below. However, there is an exception to the rule when the finding of facts by the courts below was based on a correct appreciation of the evidence in the record. In Michael Elias v. Republic, Criminal Appeal No.243 of 2007 (unreported), the Court emphasized that: "... this approach rests on the premise that the findings of facts are based on a correct appreciation o f the evidence. I f both courts compieteiy misapprehended the substance, nature and quality o f evidence resulting in an unfair conviction > this Court must, in the interest o f justice , interfere . " Applying the above settled position to the present case, we shall scrutinize the evidence on record to ascertain whether there were contradictions and inconsistencies in the prosecution witnesses' evidence and whether the prosecution witnesses were credible in proving the charge facing the appellant. It is evident that in convicting the appellant, the trial court relied on the evidence of the prosecution witnesses. The record of appeal reveals that PW1 differed with PW4 on the issue of when the appellant allegedly uttered abusive language against PW4. PW1 testified that on 15th February, 2022, he received a telephone call from PW4 informing him that the appellant called her a witch. He further stated that two days thereafter PW4 again complained that the appellant had repeated the accusation. In contrast, PW4 maintained that it was on 14th February, 2022, when she called PW1 and informed him that the appellant had called her a witch. The inconsistency does not end there. PW1 further asserted that two days after 15th February, 2022, he received another telephone call from PW4 reporting that the appellant had once again uttered abusive words to her, namely: "...mchawi wewe una manyoka" That assertion, however, raises a fundamental difficulty. The record clearly shows that the appellant was arrested on 15th February, 2022. If that is the case, it becomes logically impossible for the appellant to have returned to PW4's residence two days later to repeat the alleged utterances while he was already in police custody. This glaring inconsistency was neither explained nor reconciled by the 8 prosecution. It was not clarified during examination-in-chief, nor was any attempt made during cross-examination to resolve the evident contradiction. In our view, such an anomaly cannot be brushed aside as a minor discrepancy. Rather, it strikes at the very core of the prosecution narrative and casts serious doubt on the reliability of the evidence tendered by PW1 and PW4. Where the prosecution's own evidence gives rise to such an implausible sequence of events, the Court cannot safely rely on it as a basis for sustaining a conviction. Another inconsistency relates to the alleged family meeting convened by PW1. According to PW1, the complaint made by PW4 prompted him to convene a family meeting at which, he claimed, the appellant admitted having called PW4 a witch. However, when the appellant cross-examined PW1 and questioned why the purported letter embodying that alleged admission was not produced before the court, PW1 was unable to offer any satisfactory explanation. In our considered view, the said letter would have constituted the best evidence of the alleged admission. Failure to tender it in court casts doubt on the credibility of PWl's account. Further material inconsistencies is when PW2, PW3 and PW4 asserted that they heard the appellant abusing PW4, none of them specified the actual words used. The only witness who attributed specific language to the appellant was PW1, who alleged that the appellant said: "...mchawi wewe una manyoka." Significantly, PW2, PW3 and even PW4 herself did not corroborate that account. Their evidence was confined to a general assertion that the appellant called PW4 a witch, without reference to the particular words cited by PW1. It is well settled that contradictions in the evidence of witnesses affect their credibility, and where such contradictions are material, they render the testimony unreliable and unsafe to rely upon. For instance, in Elisha Edward v. Republic (Criminal Appeal No. 33 of 2018) [2021] TZCA 397 (24 August 2021, TanzLII), the Court held: "In view o f the serious contradiction o f the prosecution witnesses with regard to important facts concerning the occurrence and the invoivement of the appeiiant in committing the offence o f rape, we hold a firm view that their credibility was questionabie and thus they had to be disbelieved by both the trial and first appellate courts." Moreover, we take into account the cautioned statement (exhibit PI), which, as correctly submitted by the appellant, was recorded in contravention of the law. The appellant did not append his signature on the certification clause, a procedural defect that casts serious doubt on the authenticity and reliability of the document, raising legitimate questions as to whether he genuinely confessed to having called PW4 a witch. Taken together, the contradictions in oral testimony and the defective cautioned statement significantly weaken the prosecution's case and undermine any reliance on these pieces of evidence. Taken cumulatively, the defective cautioned statement and the contradictions affecting the evidence of PW1 and PW4 cannot be dismissed as minor; they raise serious doubt as to whether the appellant actually uttered the alleged abusive words. We concur with the learned Senior State Attorney that the evidence of PW1 and PW4 was unreliable. Their lack of credibility also diminished the weight of the testimonies of PW2 and PW3, whose accounts differed in material respects from those of the other prosecution witnesses. Consequently, the evidence on record is unreliable and falls short of the standard required to sustain a criminal conviction. See for instance Mohamed Said Matula v. Republic [1995] T.L.R. 3, Dickson Elia Nsamba Shapwata & Another v. Republic, (Criminal Appeal No. 92 of 2007) [2008] TZCA 17 (30 May 2008, TanzLII) and Mathias Bundala v. Republic, Criminal Appeal No. 62 of 2004 (unreported). In the latter case, the Court held that: "Good reasons for not believing a witness include the fact that the witness has given improbable evidence , or the evidence has been materially contradicted by another witness or witnesses." [Emphasis added] This principle underscores the material contradictions between the testimonies of PW1, PW2, PW3 and PW4, which cast serious doubt on the prosecution's account of what actually transpired. The cumulative effect of these inconsistencies substantially impairs the credibility of the prosecution’s witnesses and weakens the case against the appellant. In Salum Ally v. Republic, Criminal Appeal No. 106 of 2013 (unreported), the Court stated that: "...on whether or not any particular evidence is reliable, depends on its credibility and the weight to be attached to such evidence. We are aware that at its most basic, credibility involves the issue whether the witness appears to be teiiing the truth as he beiieves it to b e ...." [Emphasis added] Having re-examined the testimonies of the prosecution witnesses in light of the concurrent findings of the courts below, we are unable to share the certainty of the trial and first appellate courts that the witnesses were reliable. The glaring contradictions were neither addressed nor reconciled by the lower courts. Had they done so, a different conclusion might have been reached. In the circumstances, we find that the prosecution failed to 12 adduce sufficient evidence to substantiate its case. In the circumstances, we think it is unnecessary to consider the remaining grounds of appeal. As such, we find the fourth ground of appeal has merit and allow it. Consequently, we allow the appeal, quash the conviction and set aside the sentence. We, accordingly, order that the appellant be released from prison unless lawfully held for other causes. DATED at SHINYANGA this 6th day of March, 2026. F. L. K. WAM BALI JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL The Judgment delivered this 9th day of March, 2026 in the presence of the Appellant in person and Mr. Leonard Kiwango, learned State Attorney for the Respondent/Republic, via virtual Court, and Mr. Elias Nkwabi, Court Clerk; is hereby certified as a true copy of the original. 13