Robert Fumbuka @ Mwanaholo @ Holo vs Republic (Criminal Appeal No. 266 of 2023) [2026] TZCA 243 (5 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA fCORAM: LILA. J.A.. MAIGE. 3.A. And MANSOOR. J.A.^ CRIMINAL APPEAL NO 266 OF 2023 ROBERT FUMBUKA @MWANAHOLO @ HOLO ............................. APPELLANT VERSUS THE REPUBLIC........................................................................... RESPONDENT (Appeal from the judgment of the High Court of Tanzania, at Shinyanga) (Matuma, 3.^ dated the 8th day of March/2023 in Criminal Session No. 21 of 2021 JUDGMENT OF THE COURT 11th February & 5th March, 2026 MAIGE J.A.: This appeal arises from the judgment of the High Court in which, the appellant was charged with and convicted of the offence of murder contrary to section 196 of the Penal Code. It was alleged that, on 9th day of February, 2020 at Isanja Village within Shinyanga District in Shinyanga Region, the appellant did murder one Omary S/O Fungameza. i Initially, the appellant who was the deceased's nephew, was jointly and together, charged with the appellant's young brothers, Elias Fungameza and Dotto Fungameza. For the purpose of this appeal, they shall be referred to as "the first accomplice" and "the second accomplice", respectively; and, together "the two accomplices". Against each of these two accomplices, it would appear, a nolle proseque was entered into leading to their discharge. The material facts from which the appellant was linked with the offence can be summarized as follows. The deceased was a resident of Isanja Village within Shinyanga District in Shinyanga Region and a cattle trader who maintained a heard of cows at his residence. Just before his demise, he had sold a cow to Joseph Lukas Luziga (PW1) who, however, had not yet come to collect it. It occurred that, when PW1 arrived at the deceased's home to pick up the cow on 10th February, 2020, he found the deceased absent. It was so, even after his attempt on the second day. When he asked around, neighbors revealed that they had not seen the deceased for some time and that, his cattle were being tended by Lazaro's boys at a nearby village. When he met with Lazaro, the latter told him to go to the second accomplice 2 where the cow was finally handed over to him. Subsequently, upon hearing that the appellant was selling a cow on behalf of the deceased, he proceeded to the appellant' home and bought a cow along with its calf. PW1 testified that, although it was the appellant who sold the cow to him, the purchase price thereof was received by the first accomplice. That was on 12th February, 2020. At that time, the appellant disclosed to him that the deceased had travelled to Zanzibar and had authorized the appellant to sell the cattle, in the understanding that he would remit the proceeds thereof to the deceased. Subsequently, PW1 was informed by the first accomplice that the deceased was selling another cow. This time around, they went to the deceased's residence to inspect the cow, where they found the appellant present too. There were other customers as well. Two days thereafter which is to say, on 14th February, 2020, PW1 was contacted by one Zakaria Nhiga and some other villagers. Upon being asked whether he was the one who bought the deceased's cow, he provided a full account of the transaction. At that time, he was informed that the deceased was nowhere to be found. 3 Following his father's disappearance, the deceased's son one John Omary (PW3) visited his home. He found the door standing open and the cattle yard empty, which made him suspicious that something might have gone wrong. He soon found out that the appellant had been selling the cattle, telling people that the deceased had gone to Zanzibar. Upon confirming from some relatives that the deceased was not in Zanzibar, PW1 confronted the appellant whose response was evasive and illogical. He, therefore, reported the incident to the police. Wilbert Andrew (PW4) was, at the time of the incident, a police officer at Didia police post. He stated that as soon as the matter was reported to him, he arrested the appellant and the two accomplices. During their interrogation, both of them insisted that the deceased was actually in Zanzibar. He advised his relatives and local authorities to continue the whereabouts of the deceased. PW4 testified further that on 15th February, 2020, the counsellor for Itwangi ward informed him that searching villagers had found a spot that looked like a grave. The villagers immediately suspected it was where the deceased had been buried. He, therefore, sought and was granted court's permission to exhume the contents of the suspected grave. At that juncture, the appellant and the accomplices were further interrogated and made oral confession to have murdered the deceased. At that stage and upon further interrogation, the appellant and the two accomplices confessed to the murder. They subsequently volunteered to direct the investigators to the site of the deceased's burial. Upon arriving at the site, they found a crowd of people already gathered. PW1 asked them, in front of the people, to point out the exact spot where the body was hidden. They led them to the grave, and under their direction, the body was unearthed and finally exhumed. On the same day, E. 6968 D/sgt Joseph (PW6) recorded the cautioned statement of the appellant wherein he confessed to the murder in question (exhibit P2). PW6 also tendered the postmortem report which was admitted as exhibit PI. Based on the confessional statement of the appellant, the police got a hint that at first, the body of the deceased was buried near a wall and subsequently shifted to the place where it was discovered. They further got information that it was Ramadhan Shabani (PW2) who was hired to dig the hole having been misrepresented to him that it would be used for preparation of charcoal. Therefore, some police officers together with the hamlet chairman, 5 Charles Kisendi (PW5) approached PW2 who admitted to have excavated the hole and was ready to lead them thereto. He, therefore, took them to the place and, on reaching there, they found the body of the deceased had already be exhumed. In defense, the appellant denied committing the offence. He denied being involved in the sale of the deceased's cattle and denied having freely and voluntarily made the confession in exhibit P2, maintaining that he was induced by torture so do. While admitting to have hired PW2 to dig what he called charcoal tunnel, he denied that the intention was to have the deceased buried therein. After evaluating the evidence, the trial court found the appellant guilty of murder. It, therefore, convicted the appellant with the offence and sentenced him as aforesaid. Aggrieved, the appellant preferred this appeal. In the initial memorandum of appeal, the appellant raised about six grounds of appeal and in the supplementary memorandum of appeal, he added seven grounds. At the hearing, however, all the grounds were dropped with the exception of ground two in the substantive memorandum of appeal and grounds five and six in the supplementary memorandum of appeal. For easy of reference, the 6 second ground in the substantive memorandum of appeal shall be treated as ground one and the grounds five and six of the supplementary memorandum of appeal, shall be treated as grounds 2 and 3, respectively. In the premises, the grounds of appeal to be determined and which have been addressed in the counsel's submissions shall be as follows: (1) The confessional statem ent o f the appellant was taken out o f time. (2) That the action o f discharging the duo co-accused (Elias Fungameza and Dotto Fungameza) le ft uncurable doubt and one m ust believe the appellant was p rioriy spotted unreasonably. (3) That, the absence o f extra ju d icia l statem ent the tria ljudge was not placed in better position o f assessing as to whether the appellant had really confessed to have killed the deceased or not. At the hearing of the appeal, Mr. Audax Constantine, learned advocate, represented the appellant while Ms. Salome Mbughuni 7 learned Senior State Attorney who teamed up with Ms. Gloria Richard Ndondi, learned State Attorney, appeared for the respondent Republic. Concerning ground one, it was Mr. Constantine's submission that, in accordance with the testimony of PW6, the cautioned statement of the appellant was recorded out of the prescribed period of four hours from the date of the restraint as per section 50(2) of the CPA. He submitted that the evidence indicates that he was arrested on 14th February, 2020 at 20:00 hours. His statement was, however, recorded on 16th February, 2020 at noon. There is no evidence of time enlargement. He submitted that while the testimony of PW6 would suggest that the appellant had been conveyed to Shinyanga, there is no evidence as to why he was taken to Shinyanga. On those premises, he concluded that the statement was taken out of time and it should be excluded from evidence. Concerning the second ground, the learned counsel submitted that, while the evidence consistently pointed finger to the appellant and the two accomplices, the two were, on 4th May 2021, discharged upon entry of nolle proseque. That, he submitted, raises a reasonable doubt if the prosecution believed the story of its six witnesses about 8 the linkage of the appellant and the said accomplices with the death of the deceased. He submitted further that, if the appellant was linked with the offence because of making a confession leading to discovery of the body of the deceased, the two accomplices are in the same way implicated in evidence. They are, he further submitted, implicated by the fact that, they were involved in the sale of the deceased's cows and on false representation that he was in Zanzibar, the conducts which was used to circumstantially link the appellant with the crime. He concluded, therefore, relying on the decision in Seko Masalu @ Makoye and Another v. R, Criminal Appeal No. 482 of 2020 [2024] TZCA 77, TANZLII that the anomaly raises a reasonable doubt on the prosecution evidence. In his contention, therefore, the case against the appellant was not proved beyond reasonable doubt. He prayed thus, the appeal be allowed. We noted that in his submission, the counsel did not address he last ground, meaning in our view that, it has been abandoned. In response, Ms. Mbuguni who presented the submission for the respondent conceded that, indeed, the appellant's cautioned statement was recorded out of time. Like Mr. Constantine, she agreed that the 9 same should be excluded from evidence. That aside, she submitted, there is sufficient evidence to link him with the offence. In respect to the second ground as to the alleged double standards, she submitted that the evidence on the record as against the appellant was heavier than the accomplices. For instance, she submitted, the appellant is the one who made oral confession leading to discovery which alone could suffice to sustain conviction. She insisted that the evidence clearly shows that it was the appellant who specifically pointed out the exact location of the area where they buried the deceased. Besides, there is evidence that he was the one who hired PW2 to excavate what turned out to be the deceased grave. She submitted further that oral confession if believed can solely be relied upon to sustain conviction. To that effect, she cited the Lameck Simson v. R (Criminal Appeal No. 240 of 2023) [2025], TZCA 1098, TANZLII . She prayed, therefore that, the appeal be allowed. We shall, for obvious reason, start our discussion with the second ground. The complaint therein is that, because the evidence adduced touches the appellant and the two accomplices in the similar way, discharging the accomplices during pretrial stages shakes the 10 credibility of the prosecution story. This, it was submitted, raises a reasonable doubt which should have been applied against the prosecution. To cement his contention, he referred us to the case of Seko Masalu and Another v. R, Criminal Appeal No. 482 of 2020 (unreported) where we remarked: " Before we conclude in this ground, we wish to comment on one thing which we m ust admit, exercised our minds, why the prosecution failed to prosecute the person allegedly hired the appellant and his fellow s to k ill the deceased? We have seen from the record that during com m ittal proceedings Juma Luhalula was among the five accused persons arraigned before the D istrict Court o f Magu on 2 J d September, 2014. However, on 10th July, 2015, the Director o f Public Prosecutions entered nolle proseque and he was discharged together with a ll other accused persons, except the appellant. We do not intend to question his powers in deciding whom to prosecute, but it raised doubt if a t a ll we have to believe the appellant's li confession that he was among the people who were hired to k ill the deceased. " In this case, the appellant was, as per page 90 of the record of appeal, linked with the offence based on circumstantial evidence. One, soon after the incident, the appellant started selling the deceased's cow while falsely representing to the community that the deceased had gone to Zanzibar. Two, soon thereafter, the appellant instructed PW2 to excavate a hole while falsely representing to him that the same would be used for burning charcoal. However, subsequently, the dead body of the deceased was found therein. Three, unlike round holes which are ordinarily used for burning charcoals, PW2 was directed to create a rectangle hole. Four, the appellant having been arrested by the police, led them to the same place and where the dead body of the deceased was discovered. Mr. Constantine has suggested that the four circumstantial pieces of evidence used to link the appellant with the offence was available as against the two accomplices as well. We have keenly examined the record and satisfied ourselves that, that was not the case. We shall herein after demonstrate. 12 The evidence pertaining to the sale of the deceased's cows came from PW1 who was the purchaser. Throughout his testimony, he named the appellant to be the vendor. The second accomplice was mentioned at page 29 in the following words: 7 went to Dotto Fungameza rand when I m et him, he told me; "twende nikakupe huyo n'gom be. Wewe n i m teja wake wa mda mrefu. Hata m im i aiiniam bia huyo ng'ombe nataka nim uuzie Jose". Dotto handled the cow to me . " The above piece of evidence does not at all suggest that the second accomplice was involved in the sale of the cow but what he did was to deliver the cow to PW1 who a day before, had purchased it from the deceased. It is express in the evidence that, the second accomplice did so as he was aware of the transaction between the deceased and PW1. As regard the first accomplice, PW1 testified at page 30 that: " I asked Elia who was responsible for the sale. He told me it was Robert Fumbuka Mwanaholo who was there. Robert Fumbuka Mwanahoio sold to me a cow and its calf. " 13 Though the evidence suggest that it was the first appellant who was receiving the money, PW1 clarified it at page 31 in his testimony on cross examination when he said: "It is true I handled the money to Elias Fungameza. It was Robert Fumbuka mwanaholo who sold to me as; "Yeye ndiye tu/ipatana naye bei. Lakini mkono wake ulikuwa umevimba na kwa hiyo Elias Fungameza ndiye alikuwa anapokea hela na kuzihesabu." Concerning the false claim that the deceased was in Zanzibar, the evidence clearly establishes that, it was the appellant who was the source of that information. There is no evidence to suggest that the second accomplice had ever told PW1 that the deceased had gone to Zanzibar. There is, however, a testimony suggesting that the first accomplice told PW1 thereabout. That alone could not be enough because at that time already the appellant was selling the cows falsely misrepresenting that he was sending the proceeds to the deceased. Notably, even the testimony of the deceased son (PW3) is clear that it was the appellant who was the author of the false claim. For instance, PW3 testified at page 34 of the record: 7 traced Robert and got him in the night. I asked him about the cows and he told me that my father who was his unde is in Zanzibar and he has sent the proceeds o f the cow to him. He gave us the phone numbers which he claim ed to have sent the money. We tried to phone those numbers in vain." Turning to the third piece of circumstantial evidence, the evidence of PW2 does not name any of the accomplices to have taken part in hiring him to excavate the hole from which the dead body of the deceased was recovered. It is only the appellant who is mentioned and fortunately, he had expressly conceded thereto in his testimony in defence. On this, the trial court remarked at page 91 correctly, in our view, that: "In this case, the accused adm itted before this court to have hired PW2 for making the hole which was later found to have been turned out into a grave which the deceased was buried. He has as w ell adm itted that he gave the directives that the whole m ust be rectangle. Such facts are thus take to have been proved . " 15 Having said that, we find the appellant's complaint in the second ground of appeal devoid of any merit. We now turn to the first ground which raises an issue whether the appellant's cautioned statement was recorded out of time. This should not consume much of our time as its determination is a matter of simple mathematical calculation. The date of the arrest of the appellant as per the testimony of the arresting police, PW4 was on 14th February, 2020 while his statement was recorded on 16th February, 2020. There is an interval of more than 24 hours in between while the time available for recording a cautioned statement of a person under police custody is four hours. This is in terms of section 50 (1) (a) of the CPA, which provides: "50 (1) For the purpose o f this A ct the period available for interviewing a person who is in restraint in respect o f an offence is (a) Subject to paragraph (b), the basic period available for interviewing the p e rso n th a t is to say, the period o f four hours commencing at the time when he was taken under restraint in respect o f the offence." [Em phasis supplied]. 16 In the current case, despite the lapse of the time limit for extracting such a statement, the prosecution did not bother to seek for time enlargement. The omission renders the statement as tantamount to evidence illegally obtained which in view of section 169 of the CPA has to be excluded from evidence. See for instance, As the power of a police In Janta Joseph Komba Versus R., Criminal Appeal No. 95 of 200 (unreported) and Tumaini Moleli @John Walker and Another V. R., Criminal Appeal No. 40 of 99 (Unreported). Guided by the above authorities, we agree with both counsel that as appellant's cautioned statement was recorded beyond the time limit of four hours from the date of the appellant's arrest and detention, the same was illegally obtained and should be excluded from evidence. The first ground of appeal thus succeeds and it is hereby allowed. As a result we exclude the first appellant's cautioned statement from evidence. It has been suggested for the appellant that after exclusion of the evidence in cautioned statement, there remains nothing to prove the case beyond reasonable doubt. With respect, we cannot agree with that claim. For, as expressed herein above, the appellant's conviction was essentially based on circumstantial evidence which was primarily 17 inferred from the four pieces of evidence above discussed. Those pieces of evidence, we have shown herein above, comes from concrete evidence mainly from PW1, PW2, PW4, PW5 and PW6. We have examined the record and satisfied ourselves that trial court's assessment of the evidence and application of the relevant principle of law governing reliability of circumstantial evidence was quite correct and cannot be faulted. As for instance, having portrayed the four unbroken circumstantial facts linking the appellant with the offence, and having addressed itself on the position of law that, for circumstantial evidence to be the ground of conviction, it must be incapable of more than one hypothesis, it made the following observations: " On m y side, I don't see any suggestive fact to disbelieve the prosecution witnesses. This is because neither o f them had any grudges with the accused and they testified on the facts observed a t the crim e scene and what the accused told them. The accused corroborated them when he adm itted to have hired PW2 to dig the hole which was in fact the grave on the pretext that he wanted to use it for burning charcoals. He also accepted that the deceased's body was found buried in the said "hole" without accounting why didn't he use the same for a ll such period from when he hired PW2 to make it on 09/02/2020 according to him self or on 10/2/2020 according to PW2 up to l4 h February\ 2020 when he was arrested. PW2 testified that at that place he did not see the logs (magogo ya kuchoma mkaa) and when he asked the accused, he was sim ply told that they are a t the east part thereof. I find that no one could have gone a ll that way to the h ill to bury the deceased in the same hole prepared by the accused except him self or his counterparty who were knowledgeable o f the hole." Having critically examined the record, we have without any doubt that such finding was based on the evidence which, he correctly assessed and found true which we have also done and that, his assessment and application of the evidence, was based on correct application of the principles of law. We entirely agree with him that the four pieces of unbroken circumstantial evidence establishes, without reasonable doubt that, it is the appellant and nobody else who murdered the deceased. 19 In view of the foregoing and to the extent as afore stated, the appeal is hereby dismissed. DATED at SHINYANGA this 5th day of March, 2026. S. A. LILA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL The Judgment delivered this 5th day of March, 2026 in the presence of Ms. Gloria Ikanda, learned counsel holding brief for Mr. Audax Constantine, learned counsel for the Appellant, Mr. Leonard Kiwango, learned State Attorney for the respondent/Republic by virtual Court and Mr. Leopord Mabugo, Court Clerk; is hereby certified as a true copy of the original. 20