James Kaliwa @ Mazi vs Republic (Criminal Appeal No. 403 of 2023) [2026] TZCA 284 (9 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA (CORAM: WAMBALI, J.A.. MAKUNGU. 3.A. And MGEYEKWA. 3.A.) CRIMINAL APPEAL NO. 403 OF 2023 JAMES KALIWA @ M A 2I ........................ ....................... APPELLANT VERSUS THE REPUBLIC .................. ........................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Shinyanga) (Matuma. J.t Dated the 13th day of October, 2022 in Criminal Sessions Case No. 18 of 2020 JUDGMENT OF THE COURT 9th February, & 9th March, 2026 WAMBALI. J.A.: The appellant was arraigned in the High Court of Tanzania at Shinyanga where he was charged upon information for murder contrary to section 196 of the Penal Code. It was plainly laid in the particulars of the information that on unknown date in the month of July, 2017 at Jisesa Village within Busega District in Simiyu Region, the appellant did murder one Iddi. The appellant pleaded not guilty to the charge. The trial was accordingly conducted. i The prosecution case depended substantially on the evidence of six (6) witnesses, namely ASP Enock Manase Seme (PW1), Joseph Sengerema (PW2), Shirikale Buzengano (PW3), Kaijunga Brassy (PW4), E.9187 D/Sgt Enock (PW5) and Salome Derema (PW6). In addition, the following exhibits were tendered and admitted in evidence; seizure certificate (exhibit PI), Coroner's Form A (exhibit P2), sketch map of the scene of the crime (exhibit P3), Government Chemist Report (exhibit P4) and the cautioned statement (exhibit P5). Basically, the evidence of the prosecution case as found by the trial court was that; on 18th July, 2017 PW1, a police officer received information from an informer, who allegedly happened to be the appellant that, someone in Jisesa village engaged in human parts business. Following the information, PW1 with the aid of the appellant as an informer with other police officers and local leader of the vicinity, PW2, visited the homestead of Mathias who was suspected to trade human parts. They, only found the wife of Mathias at home and upon searching in the whole house, compound and kitchen, PW1 in the company of others recovered two cement bags at the roof of the toilet. On opening each had a human arm cut from the elbow. The certificate of seizure was filled and 2 four people who were resident of that home were arrested including Salome Dereva (PW6), Kidana Mathias, Idd Mathias and Gaganya Tenge. Upon interrogation it was revealed that the appellant herein was suspected since he had quarrels with the said family where the human parts were found. When the police tried to get hold of the appellant, he was not reachable and his wife informed them that the appellant had left home for sometimes and she did not know his whereabouts. Later on, based on the information from the appellant's wife, he was arrested on 8th August, 2017 on his return home. When interrogated, the appellant allegedly admitted that it was him who sent those arms at Mathias home so that Mathias could be arrested and jailed since they had quarrels. PW2 testified that he witnessed the search that was conducted at Mathias home which led to the discovery and seizure of two cement bags each with human cut arms which were cut from the elbow. He stated that he also signed the certificate of seizure. PW3 testified to have been summoned by the police officer on 14th August, 2017 to accompany them to Jisesa village to discover a person that was killed and buried. According to PW3, the appellant led the police officers to the discovery of hairs, clothes with blood and skeleton of the head which were taken by the police officers for investigation. 3 PW4, a Government Chemist testified that on 27th July, 2017 she received two police letters from Eunice Mbata, requesting an investigation of allegedly human arms to determine whether they were real human parts, The exhibits were registered with No. 2088/2017. That on 11th September, 2017, Eunice Mbata visited again with seven exhibits namely hairs, tooth, pieces of bones, three pieces of skull and clothes. They were registered with No. 2501/2017. He revealed that it was requested to make comparison of the previous exhibits with the seven exhibits. The examination conducted revealed that all exhibits were "vinasaba vya mtu mmoja mwenye jinsia ya kiume". Further that the clothes had DNA matching to the teeth, skeletons and skull. PW5 is on record to have participated in the search at Mathias home as well as seizure of discovered arms. He testified that he arranged the process of sending the said arms to the Chief Government Chemist Laboratory as well as interrogation of the appellant. PW5 also participated in the arrest of the appellant and recorded the appellant's cautioned statement. The appellant denied the allegation regarding the commission of the offence and stated that he was arrested without being informed the reason for arrest. The appellant also stated that he was tortured and asked for a bribe so that he can be released but since he had no money, he was given a murder case. The appellant denied to have recorded the cautioned statement nor being a police informer. He challenged the prosecution for lack of exhibits. Nevertheless, at the conclusion of the trial, having evaluated the evidence for both sides, the trial judge was fully convinced that the prosecution case was proved to the hilt. He was further convinced that the defence case had raised no reasonable doubt to shake the allegation levelled against the appellant holding that there was unbroken chain of circumstantial evidence. In the result, he convicted the appellant of the offence of murder and sentenced him to suffer death by hanging. The appellant strongly contests the findings, conviction and sentence by the trial court. The appellant personally filed the memorandum of appeal comprising of five (5) grounds of appeal. However, before the hearing, the counsel who was assigned to represent him, lodged the supplementary memorandum of appeal in substitution to the previous filed one comprised of five grounds of appeal paraphrased hereunder: 1. That, the (earned Judge erred in law and facts when he convicted the appeiiant basing on the evidence o f PW4 whiie 5 there was no chain o f custody o f the purported human parts which were tendered by the prosecution. 2. That, the /'earned Judge erred in iaw and facts when he convicted the appellant whiie the prosecution failed to bring an important witness one Eunice Mbata who is aiieged to have transported the purported human parts remains from Mwanza to Par es Salaam. 3. That, the learned Judge erred in law and fact when he convicted the appellant while the prosecution failed to prove that the appellant was the informer o f police white the phone number used to communicate with the accused was not disclosed. 4. That ; the learned Judge erred in law and fact when he convicted the appellant by neglecting the evidence o f the accused concerning the giving and signing o f the cautioned statement in his evidence and during cross examination on PW5. 5. That) the learned Judge erred in law when he convicted the appellant while the prosecution failed to prove the case beyond reasonable doubt The hearing proceeded in the presence of the appellant in person and Mr. Frank Samwel, learned advocate who represented him. On the adversary side, Mr. Anesius Kainunura, Ms. Immaculate Mapunda and Ms. Suzan Masule learned Principal State Attorney and Senior State Attorneys, respectively, entered appearance for the respondent Republic. 6 At the hearing of the appeal, though Mr. Samwel briefly addressed the Court on all the raised grounds, at the outset, Mr. Kainunura readily conceded to the appeal on the single ground that the case against the appellant was not proved beyond reasonable doubt. Mr. Kainunura readily conceded to the appeal. The learned Principal State Attorney therefore premised his arguments generally in support of the position that the case against the appellant was not proved beyond reasonable doubt. Firstly, Mr. Kainunura stated that according to the record of appeal, the prosecution did not prove that the person who died an unnatural death was one Iddi as stated in the information and whether the human parts belonged to him. Secondly, he submitted that although during committal proceedings the exhumation order was listed as among the exhibits, it was not tendered and admitted during trial. In his submission, the absence of the respective order weakened the evidence of PW1 because during cross examination he stated that he could not exhume the human parts of the deceased until they got the order of the court. This raised doubt on whether the human parts taken to the Government Chemists Laboratory were indeed the human parts retrieved from the bush. Thirdly, that the chain of custody of the seized human parts was not clearly demonstrated from the date of seizure to the date of tendering the human parts in court. Fourthly, that the cautioned statement cannot be relied wholly in connecting the appellant because some of the information contradicted with the evidence of other witnesses on the record. In the circumstances, the learned Principal State Attorney concluded that the prosecution case was not proved beyond reasonable doubt, and thus the appeal be allowed. Mr. Samwel supported Mr. Kainunura's submissions. He argued further that failure by the prosecution to summon one Eunice Mbata who sent the human parts from the office of the Chief Government Chemists at Mwanza to Dar es Salaam twice on 27th July, 2017 and 11th September, 2017 weakened the evidence of PW4 as the alleged letter that formed the basis of transmitting the said human parts were not tendered and admitted in evidence. Her evidence, he maintained, could have offered an explanation on the issue how the human parts were received in Mwanza and later transmitted to Dar es Salaam. The learned advocate submitted further that, the evidence of PW1 and PW4 did not help to show how and when seized parts were sent to Mwanza and later to Dar es Salaam. Despite that, he emphasized that 8 Eunice Mbata was an important witness whom the prosecution ought to have summoned and the alleged letters was supposed to be tendered and admitted into evidence. Mr. Samwel also argued that the testimony by the prosecution witnesses that the appellant was the informer who send them to the house of Gilya Mathias where the human parts were found is questionable as it is not clear how the appellant managed to escape at the scene while in the company of police officers until he was arrested some days tater. He therefore urged the Court to find that the prosecution case was not proved to the hilt, allow the appeal and set the appellant free. Having heard the concurrent submissions by the counsel for the parties in support of the appeal, we entirely agree with them that the prosecution case was not proved beyond reasonable doubt as the evidence on record is insufficient to ground the conviction of the appellant. We entirely agree that according to the record of appeal, there is no evidence to prove that the person who allegedly died an unnatural death is Iddi and whether the retrieved human parts at the home of Gilya Mathias and later in the bush were indeed the human parts of Iddi. 9 Moreover, there is no evidence on record to prove that the said murder occurred on July, 2017 as alleged in the information. It is apparent that the appellant was arrested following the suspicion raised by PW6, the wife of Gilya Mathias, who was allegedly present when the search was conducted. Though PW6 reported that her husband had gone to the center of the village at the particular time, there is no indication why he was not arrested later for interrogation as it was the case for other members of his family, including PW6, who stayed in custody for one month in connection of the crime. This, casts doubt in so far as PW6 testified during cross examination that there was indeed conflict between her family and the appellant. Furthermore, according to PW6, there was dispute the two families because the appellant had married one Pendo who was formerly married by her husband Gilya Mathias. More importantly, the testimony by PW1 and PW5 that Pendo who facilitated the arrest of the appellant stayed together with the appellant as husband and wife strengthened the doubt on the incident. This is because the defence of the appellant was that by the time he was arrested, Pendo was no longer his wife. In this regard, the issue of the appellant being an informer of the police was also surrounded by doubts. 10 Besides, the record of appeal is silent on how the appellant managed to escape from the place near the house of Gilya Mathias on the material day while he was in the company of police officers. Unfortunately, Pendo was not summoned to testify at the trial though her statement was read over during committal proceedings. We also agree with the learned counsel for the appellant that Eunice Mbata was a material witness who would have accounted for the movement of human parts from Mwanza to Dar es Salaam. We agree that, the Eunice Mbata testimony would have linked the chain of events on how the seized human parts were transmitted from Mwanza to Dar es Salaam for examination because the letters from the police and those from the Chief Government Chemists Laboratory at Mwanza mentioned in the report (exhibit P4) were not tendered in court. We are mindful of the provision of section 152 of the Evidence Act, Cap 6 that the prosecution is not bound to call a particular number of witnesses as the evidence is weighed not counted in support of the case. However, in the circumstances of this case, in which the witnesses mentioned above would have filed the missing links with regard to handling of the seized human parts and its connection on the arrest of the appellant, an adverse inference must be drawn, as we hereby do. 11 As the case at the trial mainly depended in circumstantial evidence the prosecution was duty bound to parade sufficient evidence regarding circumstances connecting the appellant with the offence of murder. In Seif Selemani v. The Republic, Criminal Appeal No. 130 of 2005 (unreported), the Court stated that: " Where the evidence against an accused person is wholly circumstantial, the facts from which an inference adverse to the accused is sought to be drawn must be proved beyond reasonable doubt and must be clearly connected with the facts from which the inference is to be inferred. In other words, the inference must irresistibly lead to the guilty o f an accused person" Unfortunately, though it is alleged that the appellant confessed to have murdered one Iddi from Jisesa village, there is no indication that there was thorough investigation to confirm that in the respective aream a person known as Iddi was ever murdered. This also casted doubt on the reliability of the cautioned statement which as submitted by counsel for the parties, it was unsafe to rely on it. In the circumstances, we find that the prosecution case was not proved beyond reasonable doubt. Consequently, we allow the fifth ground 12 of appeal which generally covered the rest four ground of appeal. In the result we find that the appeal has merits. In the end, we quash the conviction and set aside the sentence and order that the appellant be released from custody unless held otherwise lawful. DATED at SHINYANGA this 7th day of March, 2026. F. L. K. WAMBALI JUSTICE OF APPEAL O.O. 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 13