Ernest John @ Mbolela vs Republic (Criminal Appeal No. 52 of 2024) [2026] TZCA 240 (5 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: SEHEL, 3.A.. MGONYA. 3.A. And KHAMIS. J J U CRIMINAL APPEAL NO. 52 OF 2024 ERNEST JOHN @ M BOLE LA............................................................. APPELLANT VERSUS THE REPUBLIC............................................................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Mwa.nqg, J.) dated the 5th day of April, 2024 in Criminal Sessions Case No. 73 of 2018 JUDGMENT OF THE COURT 9h February, & 5th March, 2026 SEHEL. 3.A.: The present appeal is against a conviction for murder and a death sentence meted out to the appellant, Ernest John @ Mbolela, by the High Court of Tanzania at Dar es Salaam (the trial court). According to the record of appeal, it was alleged that the appellant murdered his step son, Selemani Ramadhan @ Juma, a minor boy aged four (4) years (hereinafter referred to as "the deceased") on 31s t August, 2016 at Kibudi Village within Mkuranga District in Coast Region. He pleaded not guilty to the charge. In order to prove the charge, the prosecution paraded a total of five (5) witnesses and tendered two documentary exhibits. l Essentially, the prosecution case was that; the appellant, a husband to the deceased's mother, Belinda, was residing at Kibudi Village within Mkuranga District in Coast Region, together with the deceased and Pilisi Joseph Kitunguu Namalila (PW4). According to PW4, on 31s t August, 2016, the appellant returned home from his usual errands to find that his wife was not there. When the appellant inquired about her whereabouts, he was told that she had gone to look for him. As time passed without her return, the appellant decided to search for her. Unable to find her, he informed PW4 that he had learned she had checked into a guest house. The appellant then sat down with the deceased beside him. Angered, he slapped the deceased and demanded that he reveal his mother's whereabouts. Frightened, the deceased went out to look for his mother, while the appellant followed him carrying a machete. After some time, the appellant returned home shirtless and without the machete. He told PW4 that he had killed the deceased because his mother was at a guest house, and warned PW4 not to tell anyone, threatening to kill him if he did. Yahaya Selemani Jiko (PW5), the hamlet chairman of Kibudi village, testified before the trial court that on 1s t September, 2016, at around 09:00 hours, the appellant and Belinda came to his home and reported that their son was missing. PW5 issued them a letter to present the matter to the police 2 station. He also organized villagers, including PW4, to assist in the search. The search extended into the forest, where they discovered a child's leg protruding from the ground. The matter was immediately reported to the Mkuranga Police Station. PW5 further testified that the appellant was later arrested and linked to the murder of his stepson after PW3 informed him, on 3rd September, 2016, that the appellant had killed the child. Detective Sergeant Medes (PW2) testified that on 4th September, 2016, while on duty, he was instructed to accompany Detective Staff Sergeant Ayubu (PW1) and Dr. Grace Fabian Ng'home (PW3) to the scene of crime. At the scene, they observed a child's leg protruding from the ground. PW2 prepared a sketch map (exhibit PEI), and thereafter the body was exhumed. It was identified as the body of Seleman Ramadhan @ Juma by his mother, Belinda. PW3 conducted an autopsy and found the body bore cut wounds and was burnt. The injuries were located on the head, hands, and the abdomen, with the intestines protruding outside. Ultimately, PW3 filled in the Post-Mortem Examination Report (exhibit PE2) and concluded that the cause of death was haemorrhage. In his sworn defence, the appellant raised a defence of alibi to the effect that, on the fateful day he was not at home. He went to Mgulani in 3 search of food and returned home on 1s t September, 2016. Upon his return, his wife informed him that their son was missing. He accompanied his wife to the hamlet chairman to report the matter. In its judgment, the trial court found PW4 was reliable and credible witness. In that respect, it believed PW4's evidence that he last saw the deceased in the company of the appellant and that the appellant orally confessed to him. Relying on the principle propounded in the case of Posolo Wilson @ Mwalyego v. The Republic [2018] TZCA 635, that oral confession made by the suspect before or in the presence of reliable witness may be sufficient to found a conviction, the trial court found the appellant guilty as charged. In that respect, it did not buy the appellant's defence of alibi. Therefore, it discarded it. Subsequently, the appellant was convicted and sentenced to death by hanging. Dissatisfied with that finding, the appellant initially filed a memorandum of appeal comprising of eleven grounds and it was followed by a three-point supplementary memorandum of appeal. He has also filed written arguments expounding his grounds of appeal. At the hearing of the appeal, Mr. Ngasa Ganja Mboje, learned counsel, appeared for the appellant whereas, Mr. Baraka Mgaya, learned Senior State 4 Attorney, who teamed up with Ms. Laura Kimario and Ms. Dorice Kawonga, both learned State Attorneys, appeared for the respondent Republic. Arguing the appeal, Mr. Mboje adopted the written arguments filed earlier on by the appellant and highlighted on the following seven issues; one, whether the appellant orally confessed to PW4; two, whether the evidence of PW1, PW2, PW3 and PW5 was hearsay evidence; three, whether the prosecution failed to call material witness; four, whether the principle on the last person seen with the deceased was wrongly applied by the trial court; five, whether the circumstantial evidence established a complete chain for the trial court to find conviction on the appellant; six, whether the conduct of the appellant imputed innocence and seven, whether the defence was not considered by the trial court. Highlighting on oral confession, Mr. Mboje submitted that the appellant was convicted on the basis of oral confession allegedly made to PW4 but there was no any corroborating evidence to support the alleged oral confession. He asserted that it was not safe for the trial court to convict the appellant on the alleged oral confession especially where the evidence showed that the deceased was left by her mother in the care of PW4 and also PW4 told the trial court that the appellant accused him of participating in killing the deceased. On this he referred us to page 50 of the record of appeal. Mr. 5 Mboje stressed that it was farfetched for the appellant to have killed his step son who was left in the care of PW4 by her mother. On the same point, Mr. Mboje faulted the trial court in relying its decision on the authority in the case of Posolo Wilson @ Mwalyego v. The Republic (supra). He asserted that the facts in that case were distinguishable to the appeal at hand. In that case, he argued, there were two oral confessions. The first oral confession was made before PW3 in presence of PW1 and PW2 and the second oral confession was made before PW4 in presence of PW3. Whereas in the appeal at hand, there was no reliable witnesses who saw the appellant confessing before PW4. It was his submission that the oral confession cannot stand alone. He referred us to the case of Sikujua Idd v. The Republic [2021] TZCA 427 at page 11 where the Court echoed on the need for the trial court when determining a case centred on circumstantial evidence, to critically consider and weigh all circumstantial evidence in their totality and not by piecemeal or cubicles of evidence or circumstances. Regarding the evidence based on the hearsay evidence, Mr. Mboje submitted that, apart from PW4, the evidence of all other witnesses was hearsay which is not the best evidence. He pointed out PW1, PW2, PW3 and PW5 all heard from PW4 that the appellant killed the deceased. To fortify his 6 argument, he referred us to exhibit PEI, a Sketch map, which showed three points, namely; the point where the deceased was attacked, fell down and buried and to the evidence of PW2 at page 38 where he said that it was Hamadi Ibrahim Musa, the Ward Executive Officer (WEO) who led him to draw the sketch map. Submitting on to the failure to call material witnesses, Mr. Mboje argued that key prosecutions witnesses were not called to testify. He asserted that WEO who knew where the deceased was attacked and buried but not called to testify was a material witness as his evidence would have assisted the trial court to understand the process of killing. He also asserted that the mother of the deceased (Belinda) was a material witness as she was aware as to when the deceased disappeared. She was listed as the first witness but not called. It was his assertion that had these witnesses been called they would have given evidence prejudicial to the prosecution's case. To fortify his assertion, he referred us to the case of Hilda Innocent v. The Republic [2021] TZCA 389 where the Court drew an adverse inference against the prosecution case for its failure to call an investigating officer of the case who would have cleared doubts on whether the door was broken into or not. Highlighting on the principle of the last person seen with the deceased, Mr. Mboje faulted the trial court for heavily relying on the sole evidence of 7 PW4 who alleged to have seen the appellant with the deceased alive while he had own interest to serve. He asserted that such evidence would have carried weight if it came from an independent witness. He stressed that there was no evidence linking the appellant with the stubbing of the deceased nor were there any forensic linkage with the appellant. It was his assertion that the prosecution's case was disconnected and full of contradictions as PW4 at page 51 of the record of appeal said the police officers and the doctor arrived at the scene of crime on 4th September, 2016 at around 15:00 hours, whereas, exhibit PE2 found at page 70 of the record of appeal showed the doctor examined the body at 13:00 hours. To cement his argument that the chain of circumstantial evidence must be complete with no other co-existing circumstances which would weaken or destroy the inference, he referred us to the case of Abraham Spia @Mushi & Others v. The Republic [2017] TZCA 205 at page 15. In addition, he argued that, even exhibit PEI which was sketched by PW2 showed it was made at 12:45hrs without indicating the name of the deceased. He referred us to the case of David Faustine @ Gaskoi Mushi & Another v. The Republic [2012] TZCA 163 for the proposition that the incriminatory circumstances must be cogent and form an unbroken chain excluding other reasonable hypotheses. 8 On the conduct of the appellant, Mr. Mboje briefly submitted that the acts of the appellant, reporting the missing son and participated in the search, were in line with his innocence. Lastly, he argued that the appellant's defence that he did not confess before PW4 was not properly evaluated and analysed by the trial court in line with the corroborating evidence of PW5 that the appellant and his wife, Belinda, reported to him about the missing son. With that submission, Mr. Mboje prayed for re-evaluation of the entire body of evidence and find that the prosecution had failed to prove its case beyond reasonable doubt. He urged the Court to allow the appeal, set aside the appellant's conviction, quash the death sentence by hanging, and order the appellant's release, unless lawfully held for any other reason. Mr. Mgaya, on his part, kicked off by strongly opposing the appeal and supported both the conviction and the sentence. He pointed out that, in the appeal before us, there was no eye witness. He said, the trial court relied on the principle of the last person to be seen with the deceased and the oral confession made before PW4 to convict the appellant. It was his assertion that the evidence of PW4 was corroborated by PW2, PW3 and PW5. Elaborating, he referred us to page 48 of the record where PW4 testified that he used to reside together with the appellant, the deceased and the wife of the appellant, 9 and that, on the fateful day, he saw the appellant leaving with the deceased while holding a machete. Since then, the deceased never came. He asserted that such evidence was not controverted by the appellant by way of cross examination and even in his defence, he did not dispute the fact that he left with the deceased. He referred us to the case of Thomas Dofolofen Mbele v. The Republic [2025] TCZA 1114, at pg. 14, for the preposition that where there is evidence that an accused was the last person to be seen with the deceased then there is a presumption that he is the killer unless he offers a plausible explanation to the contrary. In that respect, he urged the Court to find that the principle of the last person to be seen with the deceased was properly applied by the trial court as the appellant left with the deceased in an unfriendly manner. For this principle to apply, Mr. Mgaya argued, neither does it require the presence of an independent witness nor eye witness or forensic evidence. He added that, according to PW4, the appellant returned after thirty minutes without a shirt or a machete. Therefore, it was not easy to get a forensic test. He distinguished the facts in the cited case of Abraham Spia @Mushi & Others v The Republic (supra) by arguing that in that appeal, the Court was dealing with the ownership of the Motor cycle which the prosecution failed to establish its ownership. 10 Mr. Mgaya conceded that there was contradiction on time but he was quick to add that such contradiction did not go to the root of the case which was whether the appellant was the last person seen with the deceased. He added that the evidence of PW2 was direct evidence on his involvement in the case. Elaborating, he referred us to the testimony of PW2 at page 38 of the record of appeal where PW2 said that he drew the sketch map and identified it to have his writing, names, dates and the name of a person who witnessed the sketch map. It was his assertion that WEO witnessed PW2 drawing the map and not the person who directed PW2 to draw the sketch map. To support his assertion, Mr. Mgaya referred us to the sketch map, exhibit PEI at page 69 of the record of appeal where it showed that it was drawn in the presence of WEO, one Hamadi s/o Ibrahim @ Musa. Submitting on oral confession made before PW4, and relying on the principle stated in the case of Posolo Wilson @ Mwalyego v. The Republic (supra), Mr. Mgaya contended that the oral confession made before PW4, who was a free agent, was sufficient to convict the appellant. He referred us to page 49 of the record of appeal, where PW4 testified that the appellant informed him that he had killed Selemani but warned him not to disclose the matter to anyone, threatening to kill him if he did. Mr. Mgaya l i emphasized that there was no justifiable reason to doubt the credibility of PW4's evidence. Regarding material witnesses, Mr. Mgaya conceded that the WEO and the appellant's wife were not called to testify. Nonetheless, he submitted that they were not material witnesses, as their testimony would not have added any value to the prosecution's case. He argued that the evidence of the witnesses who did testify was sufficient to prove the charge against the appellant. In particular, he maintained that the evidence of PW2 established that a sketch map was drawn at the scene of the crime in the presence of the WEO, and that PW5 confirmed the appellant and his wife had reported the missing child to him. He further referred to section 152 of the Evidence Act, emphasizing that no specific number of witnesses is required to prove a case; rather, what matters is the credibility of the evidence presented. On the conduct of the appellant, Mr. Mgaya submitted that it is not always the case that the first person to report an incident is necessarily innocent. He argued that the prosecution witnesses were found by the trial court to be consistent and reliable, and that such findings should not be disturbed unless there are cogent reasons to do so. Addressing the complaint that the defence evidence was not considered, Mr. Mgaya submitted that the appellant's defence was based on alibi. He 12 pointed out that the trial court considered this defence at page 86 of the record of appeal but ultimately rejected it. In the end, Mr. Mgaya urged the Court to dismiss the appeal. In rejoinder, Mr. Mboje reiterated that the principle of the last person to be seen with the deceased was uncertain in this appeal, given that PW4 acknowledged that on 30th August, 2016, the appellant went to look for food and, during his absence, the deceased was left in PW4's care by the appellant's wife. He argued that, coupled with the allegation that PW4 assisted the appellant in killing the deceased, PW4 could not be regarded as a reliable witness. He further contended that this issue of reliability extended to the oral confession allegedly made to PW4, as discussed in the case of Posolo Wilson @ Mwalyego v. The Republic (supra). Having carefully considered the submissions from both sides and reviewed the evidence on record, we observe that the prosecution's case against the appellant was principally based on two strands of evidence: (i) the circumstantial evidence that the appellant was the last person seen with the deceased, and (ii) the oral confession allegedly made to PW4. We begin with the circumstantial evidence. At the outset, we note that the trial court rightly exercised caution in dealing with such evidence. In cases depending entirely on circumstantial evidence, before an accused person can 13 be convicted, the court must be satisfied that the inculpatory facts are inconsistent with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. It is further necessary, before drawing an inference of guilt from circumstantial evidence, to ensure that no other co-existing circumstances exist which would weaken or destroy that inference. This principle was well enunciated the erstwhile East African Court of Appeal in the case of Simon Musoke v. The Republic [1958] E.A. 715 at 718. In the case of Sikujua Idd v. The Republic (supra), we directed that: "It is established law that a charge o f murder can be fully proved by circumstantial evidence. In determining a case centred on circumstantial evidence, the proper approach by a trial court and an appellate court is to critically consider and weigh a ll the circumstances established by the evidence in their totality, and not to dissect and consider piece meal or in cubicles o f evidence or circumstances In the appeal before us, we have observed that the trial courtanchored its findings on circumstantial evidence narrated by PW4, whom it deemed 14 credible and trustworthy. For clarity, we reproduce it reasoning in the following terms: "...the accused person was the last person to be seen with the deceased by PW4. He left with the deceased while angry and when holding a "panga'. He also slapped the deceased before they left together with a view to force him to show whereabouts o f his mother. Most importantly, on his return , the accused confessed before PW4 to have killed the deceased". Thereafter, the trial court connected the foregoing strands of evidence with the fact that the deceased was discovered dead on 3rd September, 2016 in the forest, bearing multiple cut wounds to the head, hands, and stomach, as well as injuries to the ribs, with the intestines protruding outside, as testified by PW1, PW2, PW3, and PW5. It then concluded that: "In the light o f the above, I have no reason to disbelieve the testimony o f PW4. He is credible witness entitled to credence. First, PW4 is the nephew o f the accused and the same was confirmed by the accused in his defence. Second, as also confirmed in his defence, there was no quarrels with his family member including PW4. Third, it was the accused who invited PW4 to live together in his home out o f love and affection. A ll these circumstances 15 point out irresistibly that the accused was the one who murdered the deceased". [Emphasis added] Much as we are alive with the cherished principle of law that credibility of a witness is the monopoly of the trial court but only in so far, the demeanour is concerned. This first appellate Court and even the second appellate court can further assess the credibility of a witness in two other ways; one, by assessing the coherence of the testimony of the witness, and two, by considering the testimony of the witness in relation to the evidence of other witnesses, including that of the accused person - see the case of Shaban Daud v. The Republic, Criminal Appeal No. 28 of 2001 (unreported). The circumstances upon which the trial court relied, and which it considered to irresistibly point to the appellant's guilt while excluding any other person, were not relevant to the matter at hand. In the case of Lukas s/o Njowoka @ Jaribu v. The Republic [2010] TZCA 345, the Court referring to its earlier decision in the case of Richard Matangule v. The Republic [1992] T.L.R. 5, cautioned on the proper applicability of the principle of the la st person to be seen with the deceased that: "That fact that the appellants were the last known persons to have been with the deceased casts very 16 grave suspicions on them, but it is in itself not conclusive proof that they killed the deceased... Other cogent corroborating evidence is necessary, for a suspicion , however ingenious can never be a substitute for proof beyond reasonable doubt". [Emphasis added] In the present appeal, however, the circumstances relied upon by the trial court do not irresistibly point to the appellant's guilt, nor do they exclude the possibility of another person's involvement. The reliance on the sole PW4's testimony, both as to the alleged oral confession and the assertion that the appellant was the last person seen with the deceased, is fraught with uncertainty. No other witness corroborated PW4's testimony. PW4 himself admitted that on 30th August, 2016, the deceased had been left in his care by the appellant's wife, and further allegations suggested that PW4 may have assisted the appellant in the commission of the offence. Such pieces of evidence inevitably cast doubt on his reliability as a witness. We are alive that the trial court accepted PW4's evidence on the basis that it was supported by the appellant's admission that he resided in the same house with him and that, no grudges existed between them. Nonetheless, when we compared the evidence of the appellant with that of PW4, we found no basis, as the trial court did, for invoking the doctrine of the "lastperson to 17 be seen with the deceased." As rightly submitted by Mr. Mboje, it was inconceivable and illogical for PW4 to allow his fellow villagers to search for the deceased for nearly two days, only to disclose that he knew the appellant had killed the deceased after the body was discovered. Furthermore, according to the appellant, upon his return home he was informed by his wife that the deceased was missing, whereupon they both reported the matter to PW5. This account is corroborated by PW5, who testified that the appellant and his wife reported the disappearance of the child to him, and it was on the strength of that report that the search was mounted. Connected to this, we find that the appellant's wife was a material witness whose testimony could have assisted the trial court in clarifying why the disappearance of the child was not reported on 31s t August, 2016, but instead was reported on 1s t September, 2016 by the appellant and herself. In that respect, we are satisfied that this is a fit case in which adverse inferences may properly be drawn against the prosecution. All things considered; we hold that the trial court erred in assuming that there existed circumstances which irresistibly pointed to the appellant's guilt. Turning to the alleged oral confession, we are mindful of the principle that a voluntary admission of guilt made before or in the presence of a reliable 18 witness may, in appropriate circumstances, suffice to ground a conviction. However, in the matter at hand, the only evidence of such confession emanates from PW4, whose credibility we have already found to be questionable. The absence of corroboration from any other witness renders his testimony precarious. It is a well-settled principle that confessions, particularly oral confessions, must be received with the utmost caution. Courts have consistently emphasized that such evidence must be clear, unequivocal, and made before a witness whose reliability is unimpeached. In this case, PW4's delayed disclosure, coupled with unsupported account from material witness, undermined the probative value of the alleged confession. Accordingly, we are unable to accept that the purported oral confession, standing alone and unsupported by independent corroboration, meets the threshold of proof beyond reasonable doubt. Suspicion, however grave, cannot substitute for legal proof, and reliance on PW4's testimony in this regard was unsafe. Having discussed in detail the highlighted issues concerning circumstantial evidence, the principle of the last person to be seen with the deceased alive, and the failure to call material witnesses, we find no necessity 19 in addressing the remaining grounds of appeal. We are satisfied that the issues already examined are sufficient to dispose of the appeal in its entirety. In the end, we find the appeal has merit. We, accordingly, quash the appellant's conviction for murder and set aside the sentence of death by hanging meted out to him. We order for the immediate release of the appellant, Ernest John @ Mbolela, from custody unless otherwise held for other lawful reasons. DATED at DAR ES SALAAM this 3r d day of March, 2026. B. M. A. SEHEL JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Judgment delivered this 5th day of March, 2026 in the presence of Mr. Ngasa Ganja Mboje, learned counsel for the Appellant and Mr. Baraka Mgaya, learned Senior State Attorney for the Respondent/Republic linked via- Video conference and Ms. Nise Mwasalemba, Court clerk, is hereby certified as a true copy of the original. J. J. KAMALA DEPUTY REGISTRAR COURT OF APPEAL