Yohana Charles Mgoli & Others vs Republic (Criminal Appeal No. 409 of 2024) [2026] TZCA 268 (6 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: SEHEL, J.A.. MGONYA. J.A. And KHAMIS. J.A.^ CRIMINAL APPEAL NO. 409 OF 2024 YOHANA CHARLES MGOLI ............................................................. 1 st APPELLANT EDWIN PASCHAL SIWALE.............................................................. 2 n d APPELLANT IDDI RAMADHANI MDATURU........................................................3 r d APPELLANT VERSUS THE REPUBLIC................................................................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania, Dar es Salaam District Registry, at Dar es Salaam) (Phillip. dated the 24th day of April, 2024 in Criminal Sessions Case No. 240 of 2022 JUDGMENT OF THE COURT lCP February & &h March, 2026 SEHEL. J.A.: On 27th March, 2022, what began as an ordinary morning for Mwita Messo Matu (PW2) and his twin sons; namely, Zumba Mwita Messo (PW3) and Peter Mwita Meso (the deceased), ended in indelible end. The family had gone to their vegetable garden, tending to crops as they did most days. By late morning, PW2 sent his sons home, one to fetch water, the other to buy food. As PW3 passed near a construction site, the appellants who were working at the site accused him of stealing some building materials. Without warning, they detained him and began a brutal assault, striking him with bricks, sticks, wood, and iron bars. While the 1s t and 2n d appellants continued to attack PW3, l the 3rd appellant went in search of the deceased. He found him, dragged him to the site, and joined him in the violence alongside his twin brother. When PW2 was on his way home, he noticed a crowd gathered near Manyitu shop. Upon nearing the place, he was horrified to see his twin sons being mercilessly attacked. He rushed forward, pleading with the attackers to stop beating and offered to compensate for the alleged stolen materials. The appellants demanded payment of TZS. 40,000.00 which PW2 desperately agreed to pay. He thus ran to the main road for possible assistance to raise money. When he returned, only the 2n d appellant remained; the others had fled. PW2 tried to restrain the 2n d appellant, but hearing his son's cries of pain, he let him go, and therefore the 2n d appellant also escaped. Having noticed the deceased's critical condition, PW2 sought assistance from the nearby police station. Inspector Adam Mabula Nyangaka (PW6) accompanied him to the scene only to find the twins lying on the ground, one barely clinging to life. The duo were rushed to the Mkuranga District Hospital, but while on the way, the deceased succumbed to the injuries. At the hospital, he was pronounced dead. The medical doctor, Irene Ronald Lyatuu (PW4), conducted the autopsy on the deceased's body and observed a severe head injury, an occipitoparietal fracture on the right side, and a fracture on the left hand near the palm with evidence of bleeding of nose and mouth. The clothes were stained with blood. 2 She therefore concluded in her Post Morten Examination Report (PMER) - exhibit PEI, that the death was caused by the injuries which the deceased sustained on the head. Later in the evening, PW6 went back to the site and managed to arrest the 2n d and 3rd appellants. The 1s t appellant was arrested on 28th March, 2022, while on duty at the construction site. On 5th April, 2022, ASP Fanuel Christopher Mlinga (PW1) conducted the Identification Parades (ID Parade) at Vikindu Police Station whereby PW2 and PW3 identified the appellants as the persons who killed the deceased. A police officers, G486 Corporal Itika (PW4) who was involved in taking the appellants for the ID Parade corroborated the evidence of PW1 that on 5th April, 2022 the ID Parade was conducted by PW1. Subsequently, the appellants were arraigned before the trial court for murder. In their defence, the appellants denied any involvement in the alleged murder. The trial court accepted the testimonies of PW2 and PW3 as credible that they positively identified the appellants who were familiar with them before the incident day. That, the appellants were further identified at the ID Parades conducted by PW1. Accordingly, the appellants were found guilty as charged, convicted and sentenced to death by hanging. 3 Aggrieved with the both conviction and sentence, the appellants appealed to this Court by filing a seven-point joint memorandum of appeal. On 18th September, 2025, they filed a joint supplementary memorandum of appeal comprising of three grounds of appeal. They also filed written arguments in support of their grounds of appeal. At the hearing of the appeal, Mr. Ngassa Ganja Mboje, Ms. Precious Ahmad Hassan and Ms. Neema Sabuni, learned counsel, appeared for the 1s t, 2n d and 3rd appellants respectively. On the other hand, Ms. Janeth Masonu, learned Senior State Attorney who teamed up with Mses. Laura Kimaro and Gloria Simpasa, learned State Attorneys, appeared to represent the respondent Republic. In arguing the appeal, Mr. Mboje adopted the seven (7) grounds in the memorandum of appeal, and three (3) grounds in the supplementary memorandum of appeal. Further, in terms of rule 88 (1) of the Tanzania Court of Appeal Rules, he successfully sought leave of the Court to argue an additional ground of appeal that: "The learned trialjudge erred in law by convicting the appellants on the basis o f the PMER Exhibit PE3 which was illegally made and does not exist in the eyes o f law". 4 Mr. Mboje clustered the eleven (11) grounds of appeal into the following three grounds; one, The learned trial Judge erred in law by convicting the appellants on the basis of inadmissible evidence relating to visual identification and the identification parade, which featured in the 3rd ground of the memorandum of appeal and the 3rd ground of the supplementary memorandum of appeal; two, The learned trial Judge erred in law by convicting the appellants on the basis of inadmissible evidence, as raised in the 2n d ground of the supplementary memorandum of appeal and the additional ground and lastly, the learned trial Judge failed to properly evaluate the evidence and thereby reached an improper conclusion of guilt on the part of the appellants as raised in the 1s t, 4th , 6th and 7th grounds in memorandum of appeal. Starting with the issue of the identification parade, Mr. Mboje submitted that the identification of the appellants was flawed for several reasons; one, contradictions in the identification parade: He argued that, according to PW1, the parade officer was Gabriel, but later PW1 changed his testimony and stated that the officer was Agrey. Such contradictory evidence, which was not clarified by the prosecution, undermined the credibility of PW1 regarding the identity of the parade officer. Two, improper composition of the parade: Mr. Mboje contended that, according to PW1, the participants in the identification parade included civilians, outsiders, and remandees. However, PW4, who was in charge at Vikindu Police 5 Post, denied having taken remandees or other outsiders to participate. This inconsistency cast doubt on the integrity of the parade. Three, non-compliance with the legal requirements on physical appearance: He referred us to the evidence of PW3 at page 58 of the record of appeal, who testified that participants differed in attire, colours, height, and general appearance, with some having shaved hair while others had not. He cited the case of Andrea Augustino @ Msigara & Another v. The Republic [2020] TZCA 1948, for the preposition that persons selected to make up the parade should be of a similar age, height, general appearance and wear same clothes. Four, violation of the suspects' rights: Mr. Mboje further referred to the Police General Orders (P.G.O.) No. 232, which requires for the suspect to be informed of his right to have an advocate or relative present. The record, however, was silent on this point. Five, defective conduct of the second parade: He argued that in the second identification parade, PW1 reduced the number of participants instead of introducing new ones, thereby making it easier for the identifying witness to single out the suspect. Six, prior exposure of the suspects to the witnesses: Mr. Mboje submitted that, according to defence evidence, the identifying witnesses had seen the appellants before the parade, as they were taken outside in handcuffs 6 prior to its conduct. This, he argued, defeated the very purpose of an identification parade. Seven, failure to read the admitted documentary evidence: Mr. Mboje submitted that after the exhibit PE2 was admitted in evidence it was not read out to the accused persons. He referred us to the case of Aniseth Ibrahim & Another v. The Republic [2021] TZCA 488 for the preposition that failure to read admitted documentary exhibits to accused warrants its expungement from the record of appeal by the appellate court. He therefore urged the Court to expunge the two ID Parades, exhibits PI and P2. On the issue of visual identification, Mr. Mboje submitted that there was no proper description of the appellants to establish how they were identified at the scene of crime. More importantly, PW2 testified that he saw the appellants from a distance of about 70 meters. Mr. Mboje argued that such a distance was too far for a person to make a reliable and proper identification. As for the second ground, namely that the trial court acted on illegal evidence to convict the appellants, Mr. Mboje referred to the Post Mortem Examination Report (PMER), exhibit PE3, and submitted that it was not recognized in law. Elaborating, he asserted that exhibit PE3 was entitled "Form D," whereas, according to section 11(3) of the Inquests Act read together with the Schedule, the PMER is prescribed in "Form C" and not "Form D." In that regard, he contended that the form used by PW3 is not provided for under the 7 law. It was his proposition that PW3 fabricated his own form. He further pointed out that at page 85, and at page 64 line 3 from the bottom, PW3 himself admitted that this was the designation he had given to the form. Mr. Mboje therefore urged the Court to expunge exhibit PE3 from the record of appeal. Submitting on the improper evaluation of evidence, Mr. Mboje tried to discredit each and every witness. Starting with the evidence of PW1, he asserted that PWl's testimony was riddled with contradictions, many of which had already been highlighted under the first ground of appeal. These inconsistencies, he argued, undermined PWl's credibility. Concerning the evidence of PW2, Mr. Mboje pointed out that PW2 contradicted himself regarding the purpose of TZS 40,000.00. Initially, PW2 stated that the money was for payment of stolen iron bars, but later changed his account, claiming it was for hiring a motorcycle to take his sons to the hospital. Mr. Mboje argued that PW3's evidence was equally doubtful. PW3 testified that the persons assaulting him were three security guards, yet the appellants denied being employed as security guards. Mr. Mboje stressed that it was not only the appellants who assaulted the deceased. He referred us to page 70 of the record of appeal, where PW6 stated that the appellants told him a mob of people was involved in the assault. Furthermore, Mr. Mboje emphasized that during the preliminary hearing, the appellants did not admit to being security guards. He contended that the 8 prosecution bore the duty to prove this fact but failed to discharge it. Instead, the appellants testified that they were masons, thereby casting doubt on the prosecution's case. He further challenged PW7's evidence, noting that the investigating officer did not even know the name of the company where the accused were allegedly employed. With these submissions, Mr. Mboje argued that the prosecution failed to prove the offence beyond reasonable doubt. He maintained that the evidence relied upon to convict the appellants was weak, tainted with contradictions, and riddled with evidential gaps. In conclusion, he urged the Court to resolve these gaps in favour of the appellants. On her part, Ms. Hassan supported the submissions made by her colleague, Mr. Mboje, and echoed the flaws in the identification parade and the contradictions in the prosecution's case. She referred us to page 59 of the record of appeal, where PW3, under cross-examination, stated that it was easier for him to identify the accused because the accused had not participated in the earlier parade, while all other participants had already been seen in the first parade. On the improper evaluation of evidence, Ms. Hassan referred us to page 74 of the record of appeal, where PW7, under cross-examination, testified that there was no path through the scene of crime. She argued that this contradicted PW2's testimony, who claimed that he used to see the appellants when passing 9 through Kamaka Industry. She further highlighted another inconsistency, while exhibit P4 indicated that the distance between the scene of crime and the road was 120 meters, PW2 testified that he saw the appellants from a distance of about 70 meters. Ms. Sabuni also aligned herself with the submissions made by Mr. Mboje and Ms. Hassan, stressing that the prosecution failed to prove the charge against the appellants. She pointed out that, at page 45 of the record of appeal, PW2 testified that he was informed that the victims were suspected thieves who had stolen iron bars, whereas PW6, upon investigation, found that no theft had occurred at the site. In addition, she highlighted that the motorcycle rider, Malik, mentioned by PW3, was not arrested and charged along with the appellants, with no explanation offered for his absence. Ms. Sabuni further emphasized that, according to the record of appeal, a mob of people assaulted the victims, yet PW2 and PW3 singled out only the appellants. She argued that this selective identification, in the face of evidence of a larger mob involvement, weakened the prosecution's case and failed to establish the appellants' guilt beyond reasonable doubt. In response, Ms. Masonu generally resisted the appeal and supported both the conviction and the sentence imposed on the appellants. She, however, conceded that the two identification parades were marred by procedural irregularities. She explained that the second parade comprised the same persons 10 who had participated in the first parade, contrary to the P.G.O. No. 232 (2) (n), which directs that where there are more than two suspects, more than one parade may be conducted with different personnel forming each parade. Furthermore, in the first parade, the participants selected were not of similar age, height, or general appearance, as required by P.G.O. No. 232 (2) (k). On that basis, she acceded to the expungement of exhibits PEI and PE2 from the record of appeal. Nonetheless, Ms. Masonu maintained that the identifying witnesses knew the appellants well before the incident. She referred us to page 44 of the record of appeal, where PW2 testified that he had seen the appellants at the site for the past three months while passing to and from his farm, and that he recognized them as security guards who lived and worked there, even during weekends. She added that PW3 also identified the appellants as security guards whom he used to see guarding the site. According to her, the incident occurred during daytime, at around 11:55 hours, when PW3 was arrested by one of the appellants and taken to the site. His testimony was corroborated by PW2, who stated that at around 11:45 hours he saw a gathering at the scene and observed four people beating his sons. PW2 further explained that the attackers were well known to him. Ms. Masonu stressed that even the appellants themselves supported the prosecution case by admitting that they had been working at the site for almost 11 three months. She asserted that the circumstances of the case were more of recognition than mere visual identification. Since the incident occurred in broad daylight, the conditions for identification were favourable as PW3 was at the center of the assault, while PW2 went directly to the scene and saw the appellants assaulting his sons. Besides, PW2 engaged with the appellants pleading for repayment of the stolen iron bars, which gave him ample opportunity to observe and identify them. She therefore concluded that the appellants, being well known to the identifying witnesses and not strangers, were positively identified. Submitting on the alleged illegal evidence, Ms. Masonu admitted that the PMER Form filled in by PW5 was Form D and not Form C which is prescribed under the Inquests Act. However, she contended that the variance between the two forms was merely in the title, as all substantive contents remained the same. She further argued that the purpose of the PMER was to establish the cause of death, and therefore the difference in the designation of the form did not render the evidence illegal. In conclusion, she urged the Court to dismiss this complaint. In the alternative, she submitted that, should the Court find merit in it, the oral account on the cause of death as established by PW5 be considered to sustain the conviction. On the issue of improper evaluation of evidence, Ms. Masonu submitted that the learned counsel for the appellants had misconstrued the testimony of 12 PW2. She clarified that PW2 initially stated that the sum of TZS 40,000.00 was intended to be paid to the appellants. However, upon discovering that his sons were seriously beaten, he changed his mind and used the money to hire a motorcycle to transport the injured sons to the hospital. In that respect, Ms. Masonu argued that PW2 did not contradict himself, but rather explained the change in the use of the money in light of the prevailing circumstances. Though Ms. Masonu acknowledged that the appellants denied being security guards, she was quick to add that both PW2 and PW3 proved beyond reasonable doubt that the appellants were indeed security guards. She referred us to page 54 of the record of appeal, where PW3 testified that he used to see the person who arrested him guarding the site. She further asserted that even the appellants themselves supported the prosecution case, as they admitted to working at the site. Specifically, DW1 at page 96 of the record of appeal stated that he had been contracted to work at the site for the past three months prior to his arrest; DW3 at page 101 testified that he was employed by Multi Struck Contractors as a mason; and at page 94, DW1 confirmed that he was working at the site where the assault took place. It was Ms. Masonu's assertion that if there was any contradiction regarding the appellants' employment status, such contradiction was minor and did not dent the prosecution's case. On the defence of alibi, Ms. Masonu admitted that it had not been considered by the trial court, but mindful that this is the first appeal, she invited 13 this Court to step into its shoes, evaluate the evidence, and ultimately arrive at its own conclusion. On whether the prosecution proved the charged offence to the required standard, Ms. Masonu submitted that all the ingredients of murder were established. First, the death of a person was proved by PW5 and exhibit PE3. Second, the unnatural cause of death was demonstrated by PW5, as well as PW2 and PW3, who testified that they saw the deceased being beaten. Third, the identity of the perpetrators was proved by PW2 and PW3, who recognized the appellants at the scene of crime. Lastly, malice aforethought was established by PW5, who after examining the deceased's body, he observed that the deceased bore severe injuries, including a damaged skull and a broken hand. Further, PW3 testified that the appellants used bricks and iron rods to assault him and his twin brother, the deceased, until the latter lost consciousness. Ms. Masonu referred us to the case of Enock Kipela v. The Republic [1999] TZCA 9. In rejoinder, Mr. Mboje reiterated that the visual identification made by PW2 and PW3 was the weakest form of evidence, yet it was the basis upon which the trial court convicted the appellants. He referred us to the case of Andrea Augustino @ Msigara & Another v. The Republic (supra) for the preposition that general descriptions that one of the appellants was fat and that they were security guards, which was not proved, was not water tight to 14 eliminate the possibility of a mistaken identity. He added that the appellants were identified as boys while their ages were above 30 years. On the contents of the PMER, Mr. Mboje rejoined that the two forms materially differed in both form and substance, and that PW5's oral testimony could not substitute for the statutory requirement of a medical report. He therefore reiterated his earlier prayer that exhibit PE3 be expunged from the record of appeal. On whether the prosecution proved its case, Mr. Mboje submitted that the weapons allegedly used in assaulting the deceased were never tendered in evidence to substantiate the claim that bricks and iron bars were used. With such evidence, he asserted that the cause of death was not proven. He also insisted that the prosecution failed to prove that the appellants were security guards. At the end, Mr. Mboje urged the Court to find that the prosecution failed to prove the charge against the appellants beyond reasonable doubt. On our part, we have carefully revisited the evidence on the record of appeal and entirely agree with the learned counsel for the parties that the procedure in conducting the identification parades was flawed. According to PW3, the persons who were lined up in the parade were of different colours, heights, and appearances. This line-up was in clear contravention of the P.G.O. No. 232(2)(k), which directs that the participants should be of similar age, height, general appearance, and class of life as the suspect. - see also the case 15 of the Rex v. Mwango Manaa (1936) 3 E.A.C.A where the erstwhile Eastern African Court of Appeal emphasized that persons forming the line-up should, as far as possible, be "of similar age, height, general appearance and class o f life" as the suspect. Though the identification parade is not substantive evidence but given its object and purpose, that is, to ascertain whether a witness can identify a person suspected of the commission of an offence - section 60 (1) of the Criminal Procedure Act (the CPA), it is imperative for the police officers who conduct the parade to comply with the laid down procedures as far as possible in order for such evidence to have a probative value. Since the procedures were substantially violated, we hold that exhibits PEI and PE2 were wrongly admitted in evidence and the trial court erred in acting on them. Accordingly, we expunge them from the record of appeal. We now turn to the issue whether the appellants were positively identified by PW2 and PW3. Here, we entirely agree with the submission of Ms. Masonu that the appellants were not total strangers to PW2 and PW3. It is on record that, for the past three months before the incident day, both PW2 and PW3 used to see the appellants guarding the site. Further, even though the appellants denied to be security guards but supported the evidence of PW2 and PW3 that they were working at the site for the past three months prior to their arrest. This means that PW2 and PW3 knew the appellants before the incident. In that 16 respect we find that the identification of the appellants was more of the recognition than identification by a stranger. In addition, the evidence on record shows that, the assault occurred in broad daylight, at around 11:55 hours; PW3 was held by one of the appellants thereby having close contact with the 2n d appellant; PW2 conversed for a while with the appellants as he pleaded with them not to beat his sons and both PW2 and PW3 had seen the appellants on several occasions at their workplace whenever they passed by. Therefore, we are increasingly satisfied that the prevailing conditions were favourable for correct identification of the appellants, ruling out any possibility of mistaken identity or confusion, contrary to what Mr. Mboje urged us to believe. In the case of Athumani Hamis @ Athuman v. The Republic [2012] TZCA 303, when the Court was dealing with the identification of the appellant through recognition said that: "Under the circumstances where the appellant recognised the appellant because o f knowing him before, and given the conditions which made the complainant to recognise the appellant, it is safe to say that there was no mistaken identity o f the appellant. In the Kenyan case o f Kenga Chea Thoye v. The Republic Criminal Appeal No. 375 o f2006 (unreported), the Court o fAppeal o f Kenya held that: - 17 "Recognition is more satisfactory, more assuring and more reliable than identification o f a stranger". We reiterate the same position in the appeal before us. In that respect, there was no need for PW2 and PW3 to give any further description of the appellants in terms of their physiques, attires or complexions. It is settled law that the requirement to give such detailed description is necessary in situations where the question of identification is in respect of a stranger - see the case of Maulid Juma Bakari @ Damu Mbaya & Another v. The Republic [2020] TZCA 351. Concerning the PMER, exhibit PE3, much as we agree that the form used by PW5 was mistitled as "Form D" instead of "Form C" as prescribed under the Schedule to section 35 of the Inquests Act, we find that such mistitling did not vitiate its substance or purpose. Having compared the two documents, exhibit PE3, and the prescribed Form C, we observed that they are substantially the same in both structure and substance. The only minor difference noted was in the layout of the forms. Otherwise, both contain identical contents, namely: identification of the deceased, particulars of the examination, external findings, internal findings, and the medical officer's certified opinion. It should be noted that the PMER serves as prima facie evidence of the cause of death and the circumstances connected with the death, as provided under section 11(2) and (3) of the Inquests Act. Furthermore, our position finds support in section 291 of the Criminal Procedure Act (the CPA), which prioritizes the expert medical content of such documents over administrative irregularities by making them receivable in evidence. The appellants contended that the trial court improperly evaluated the evidence and thereby reached a wrong conclusion. On our part, we have carefully re-evaluated the evidence and observed the following: One, we have already expunged exhibits PEI and PE2 from the record of appeal thus there is no need to discuss further the evidence of PW1, which mainly centered on the conduct of the identification parades. Two, we find the testimony of PW2 was consistent and credible as his explanation regarding the use of TZS 40,000.00 was clear. Initially, he sought the money to compensate for the alleged stolen iron bars, but upon returning and finding his sons badly injured, he used it to transport them to hospital. We therefore hold that PW2 did not contradict himself, and the trial court correctly relied on his evidence. Three, we find the alleged contradiction as to whether theft occurred or not was minor and did not go to the root of the matter. The evidence of PW2 and PW3 was consistent that the appellants assaulted the deceased and PW3 at their workplace. At this juncture we wish to reproduce part of their testimonies. PW2 testified as follows: 19 "/ know the people who were beating my son because I used to see them when I was passing through their site near by Kamaka industry. I identified those people by their face and appearances. They were young men, not old men. I found them beating my children. I interrogated them on why they are beating my sons and they told me that they suspected that my sons are thieves stealing their iron bars.... They asked me to give them 40,000/- in order to release my sons. I went to the main road to look for money. I met one Steven and asked him to assist me. He gave the money. When I went back to the scene, I found two people who were assaulting my sons running away, one o f them remained. He asked me to give him the money. I refused and told him that I better take my children to hospital, when I bent to touch Peter, Zumla told me that Peter is dead. Then, I got hold o f the person who remained there. He was holding an iron bar when I was holding him Zumla was complaining o f pains, so when I moved to see Zumla that person threw away the iron bar he had and run away." [Emphasis added] And, PW3 testified that: 20 « "... I have a twin who was not there. Two o f them remained with me, the third accused person left to look for my twin. Two o f them remained with me and continued beating me. Within a short time, Peter was brought at the site. He was tied his hands with a rope and they started beating him using the same weapons (sticks, iron bars and pieces o f bricks) we were beaten for about one hour. Our conditions were bad. We became very weak. The accused persons were beating us all over the body and we were bleeding all over our bodies. While we were there our father came". [Emphasis added] The above extracts clearly show that three persons were involved in the assault and not any other individuals. The suggestion that other people were involved emanated from the appellants themselves, as reflected in PW6's cross-examination, and not from PW2 or PW3. Similarly, the mention of Malik by PW3 arose only during cross- examination by counsel for the 2nd appellant, and PW3 clarified that Malik was merely a motorcycle rider who identified them as twins, not a participant in the assault. Four, we find that the trial court adequately considered the allegation that the appellants were masons and not security and that, rightly disregarded it as 21 immaterial. We entirely concur with the trial court that it was proved by the prosecution that the appellants were employed at the site three months prior to the incident, a fact supported by the appellants' own defence evidence. Therefore, whether they were masons or security guards did not affect the charge of murder. Besides, the appellants themselves acknowledged that on the fateful day the deceased was assaulted. For instance, DW1 testified that: "On 27.3.2022, I went to my work place and started preparing for my work. At around 12:00 hours, I heard people shouting, "thieves", "thieves" I got out my work place and look along the road and I saw many people including boda boda riders. I saw people being assaulted". Finally, we find no inconsistency on the alleged contradiction regarding the distance between the scene of crime and the road. A close scrutiny of the sketch map, exhibit PE, corroborates PW2's evidence that there were two pathways: the main tarmac road about 120 meters away from the scene, and a gravel road about 80 meters away. In light of the foregoing, we are satisfied that the trial court properly evaluated the evidence of PW2, PW3, and PW5 and arrived at the correct conclusion. Regarding the defence mounted by the appellants, we agree with the learned State Attorney that the trial court did not consider it. Nonetheless, this 22 Court, sitting as the first appellate court, is entitled to step into the shoes of the trial court and evaluate their defence afresh - see the case of Hassan Shabani @ Ugoya v. The Republic [2022] TZCA 262. The 1s t appellant fully disassociated himself from the crime scene claiming that the incident occurred on the other side of the road. The 2n d appellant raised a defence of < ? //£ /'stating that, on the fateful day at around 11:45 hours, left his workplace to buy paints. Similarly, the 3r d appellant claimed that he was not at the site, though he did not disclose where he was. It is settled law that where an accused person intends to rely on the defence of alibi, he is required to give notice of that intention to the trial court and the prosecution before the hearing of the case commences (see section 194 (4) of the CPA). If such notice cannot be given at that early stage, the accused person is required to furnish the prosecution with the particulars of a lib is a later stage but before the prosecution closes its case (see section 194 (5) of the CPA). Where the defence of alibi is raised belatedly during the defence case, the trial court is entitled to take cognizance of it but, in the exercise of its discretion, may accord no weight to it. In this appeal, both the 2n d and 3rd appellants did not give notice that they will rely on defence of alibi. They belatedly raised it during their defence. Accordingly, we accord no weight to their defence; firstly, because it was raised after the prosecution had closed its case, thus an afterthought; and secondly, 23 PW2 and PW3 consistently placed all the appellants at the scene of crime through recognition. On proof of the charged offence, we are firm that the prosecution proved the case to the required standard, that is, beyond reasonable doubt. As alluded to earlier, the appellants were charged with the offence of murder contrary to sections 196 and 197 of the Penal Code. The trial court correctly appreciated that for this offence, four essential elements must be established: one, that, a person has died; two, that, the death was unnatural; three, that, the accused persons were responsible for the killing; and four, that, the killing was carried out with malice aforethought. In this appeal, it is undisputed that Peter Mwita Meso was assaulted. This fact is confirmed by the testimonies of PW2, PW3, and even DW1. Further, PW5 and exhibit PE3 established that the deceased's death was due to severe head injury with fracture. Accordingly, the first and second ingredients were proved beyond reasonable doubt. We are also satisfied that both PW2 and PW3 positively recognized and placed the appellants at the scene of crime, and that the killing was actuated with malice aforethought. We say so because the appellants used iron bars, sticks, and pieces of bricks in assaulting the deceased, which were lethal weapons by their nature. The appellants applied excessive force as they continued to assault the victims even when they began bleeding. They struck the 24 deceased on a vulnerable part of the body, namely the head, and lastly, their conduct of absconding after the incident strongly suggested premeditation - see the case of Enock Kipela v. The Republic (supra). In the final analysis, we are satisfied that the prosecution proved the charge against the appellants to the hilt. For the foregoing reasons, we find that the appeal is without merit and is hereby dismissed. DATED at DAR ES SALAAM this 6th day of March, 2026. B. M. A. SEHEL JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL Judgment delivered this 6th day of March, 2026 in the presence of Mr. Ngassa Ganja Mboje, learned counsel for the 1s t Appellant who also held brief for Ms. Precious Hassan, counsel for the 2n d Appellant, Ms. Neema Saruni, counsel for the 3rd Appellant and Ms. Janeth Masonu, learned Senior State Attorney for the Respondent/Republic linked via- video conference and Ms. Nise Mwasalemba,