Yohana Paulo Tega & Others vs Republic (Criminal Appeal No. 641 of 2023) [2026] TZCA 252 (5 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA ( CORAM: WAMBALI. J.A., MAKUNGU. 3.A. And MGEYEKWA. J.A.^ CRIMINAL APPEAL NO. 641 OF 2023 YOHANA PAULO T E G A ............................................................ 1 st APPELLANT SENI PAULO TEG A ..................................................................2 nd APPELLANT MAGANGA PAULO T EG A .........................................................3 rd APPELLANT PAULO TEGA ...........................................................................4™ APPELLANT VERSUS THE REPUBLIC..........................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Shinyanga) (Kulita, 3 .) dated the 31st day of July, 2023 in Criminal Sessions Case No. 32 & 120 of 2022 JUDGMENT OF THE COURT 10th February & 5th March, 2026 MGEYEKWA, J.A.: The appellants, Yohana Paulo Tega, Seni Paulo Tega, Maganga Paulo Tega and Paulo Tega, (the first, second, third and fourth appellants respectively) were arraigned before the High Court of Tanzania at Shinyanga for the offence of murder contrary to section 196 of the Penal Code. The information laid by the prosecution alleged that on 23rd i

December, 2021 at Ikonda village within Shinyanga District in Shinyanga Region, the appellants jointly and together murdered one Mwandu Nyahiti Kwilasa (the deceased). The prosecution case depended on the evidence of seven witnesses and two documentary evidence, namely; a postmortem examination report of the deceased (exhibit PI) and a sketch map of the scene of the crime (exhibit P2). The appellants were accorded the opportunity to defend themselves and strongly disputed the allegations levelled against them by the prosecution side. The brief facts of the case that led to the appellants' convictions and sentences as obtained from the record of appeal are as follows: On 23rd December, 2021 (the material day), the deceased set out for the family farm with his biological brother, Paulo Kwilasa (PW2). PW2 walked slightly ahead, leaving the deceased about ten metres behind. As they neared River Longa, PW2 turned back and, to his shock, saw the deceased surrounded by a group of approximately twelve men. He alleged to have recognized the bandits; Paulo Tega, Yohana Paulo Tega, Seni Paulo Tega, Maganga Paulo Tega, Sosoma Masanja, Paulo Sosoma, Jisandu Masanja, Kumbila Masanja, Machia Sosoma, Mussa Sosoma and Nyimba Masanja. Armed with sticks, iron bars, and hoe handles, the group attacked the deceased. 2

PW2 recalled that Sosoma Masanja Initiated the assault and others joined in. Terrified for his own life, PW2 fled and sought assistance from his father, Nyahiti Kwilasa (PW3), whom he found at the home of Jidai Machimu Myimbi (PW4), the suburb village chairman of Ikonda. PW3 recalled that earlier around 9:30 hours on the material day, he had gone to PW4's home to report that some villagers had driven cattle across his farm. While there, they heard an alarm and immediately proceeded, together with other villagers, to the scene. Upon arrival, PW3 observed a group of eleven individuals beating the deceased. He alleged to have recognized the bandits as; Paulo Tega, Yohana Paulo Tega, Seni Paulo Tega, Maganga Paulo Tega, Sosoma Masanja, Paulo Sosoma, Jisandu Masanja, Kumbila Masanja and Nyimba Masanja. He noted that Paulo Tega was striking the deceased with an iron bar. The assault lasted ten to fifteen minutes before the attackers dispersed. PW4 narrated that, while at his residence with PW3, he heard the alarm and rushed toward its source. Although he did not personally witness the assault, he was informed that those involved were Sosoma Masanja, Kumbila Masanja, Jisandu Masanja, Zabron Ntemi, Paulo Tega, Yohana Paulo Tega, Seni Paulo Tega, and Maganga Paulo. Acting on this information, he directed the militia to search for and apprehend them.

The appellants were subsequently arrested. The deceased, however, succumbed to his injuries on the way to the hospital. The prosecution also produced Dr. Machunde Ford Mtani (PW1) who had examined the deceased's body on 24th December, 2021, finding multiple serious injuries, which he documented in a postmortem report which was admitted in evidence as exhibit PI. D/C Stanislaus (PW5) visited the scene on the material day, collected exhibits, interrogated the arrested appellants, and prepared a sketch plan, tendered as exhibit P2. He was informed that eleven villagers had taken part in the attack. Upon evaluating the prosecution evidence and being satisfied that it disclosed a prima facie case, the trial court placed the appellants on their defence. The first appellant (DW1) recalled that on the material day at about 17:00 hours he was grazing cattle when he was arrested by local militia and taken to the police station, where he found others similarly detained. He attributed his arrest to an existing land dispute between his family and that of the deceased. The second appellant (DW2) recalled that at about 11:00 hours he heard an alarm and, together with Maganga Tega (DW3), responded to it. They later assisted the militia in searching for the attackers but found none. He admitted that their cattle had crossed to the disputed land and

maintained that their arrest stemmed from the land dispute, not from any assault. The third appellant who testified as DW3 corroborated DW2's account. The fourth appellant (DW4), gave a detailed account of the day's events. He testified that he had been at home with his sons (the second and third appellants) while the first appellant was away grazing cattle. Upon hearing the alarm, the second and third appellants immediately ran toward its source, and he followed shortly after. On arrival, he found a large crowd gathered and was alarmed to learn that his sons had already been apprehended and accused of instigating the attack. DW4 was concerned for their safety, he travelled to Shinyanga to follow up on their detention. Later, in July, 2022, DW4 was arrested by militia and questioned by the Village Executive Officer regarding his whereabouts. He explained that he had been in Shinyanga pursuing his sons' case. He emphasized that he had no personal dispute with the deceased and that any tension arose solely from a longstanding land conflict between certain villagers and the deceased's family, rather than any personal ill will. At the conclusion of the trial, the learned Judge was satisfied that the prosecution had proved the case beyond reasonable doubt. He found that the appellants, armed with sticks and iron bars, attacked the deceased on vital parts of his body, showing malice aforethought. The 5

defence, he held, raised no reasonable doubt and appeared an afterthought. The appellants were therefore found guilty, convicted and sentenced as stated earlier. Dissatisfied, the appellants have come to the Court challenging the decision of the High Court. On 18th March, 2024, the appellants lodged a joint substantive memorandum of appeal comprising six grounds of appeal. Subsequently, on 9th February, 2026, they lodged a supplementary memorandum of appeal containing three additional grounds. However, on 10th February, 2026, Mr. Elias Ruchuonyo Hezron, learned counsel for the appellants, upon consultation with the appellants, filed a further supplementary memorandum of appeal comprising four grounds. Before the appeal was heard on its merits, Mr. Hezron sought leave of the Court to abandon all the grounds contained in the substantive memorandum of appeal as well as those in the earlier supplementary memorandum. He thus urged the Court to allow him proceed solely on the four grounds set out in the supplementary memorandum he filed later. In summary, the four grounds of appeal are as follows: one, that the autopsy report (exhibit PI) was wrongly admitted; two, that the visual identification evidence of PW2 was unreliable; three, that the testimonies of prosecution witnesses were contradictory and inconsistent; and four, 6

that the prosecution's case against the appellants was not proved beyond reasonable doubt. At the hearing of the appeal, the appellants were represented by Mr. Elias Rachuonyo Hezron, learned counsel whereas the respondent Republic was represented by Ms. Immaculata Mapunda, learned Senior State Attorney assisted by Mr. Satuninus Kamala, learned State Attorney. On the first ground of appeal, Mr. Hezron submitted that the learned trial Judge erred in admitting the post-mortem examination report (exhibit PI). His complaint was that the contents of the respective document were read out in court before the exhibit had been formally admitted in evidence. According to the learned counsel, that procedural impropriety occasioned prejudice to the appellants and resulted in a miscarriage of justice. He accordingly urged us to discount exhibit PI being relied in evidence. In response, Mr. Kamala who submitted on behalf of his colleague conceded to ground one that exhibit PI was irregularly tendered by the prosecuting attorney. On the infractions surrounding the said exhibit, Mr. Kamala urged us to discount it from the record. The learned State Attorney however, stated that even after exhibit PI is discounted, PW1 evidence remains and proves that Mwandu Nyahiti passed away.

Upon our anxious perusal of the record of appeal and careful consideration of the counsel for the parties rival submissions, it is clear that the postmortem report was indeed read out before it was formally admitted in evidence. That course of action was plainly irregular and contrary to well-settled principles governing the reception of documentary evidence. The proper procedure is elementary: a document intended to be relied upon must first be tendered, its admissibility determined and upon formal admission, it may then be read and relied upon. The Court has, on numerous occasions, deprecated the practice of reading documentary evidence prior to its admission. In Robinson Mwanjisi & 3 Others v. Republic [2003] T.L.R. 218, we observed that: "It is noted that the statements were read out before the trial court although they were subsequently rejected, a practice unfortunately common in trials before subordinate courts. Whenever it is intended to introduce any document in evidence, it should first be cleared for admission, and be actually admitted, before it can be read out Reading out documents before they are adm itted in evidence is wrong and prejudicial. I f the document is ultim ately excluded, as happened in this case, it is difficult for the court to be seen not to have been influenced by the same . " 8

The same position was reiterated in Dalali Mwalongo v. Republic, Criminal Appeal No. 27 of 2017 and Manje Yohana & Another v. Republic, Criminal Appeal No. 147 of 2016 (both unreported). The rationale for this position is to ensure fairness, impartiality and public confidence in the administration of justice. Where a document is read before the court has pronounced itself on its admissibility, the danger of prejudice is real and not illusory. In the premises, we are satisfied that exhibit PI was improperly admitted. The irregularity goes to the mode of reception of the evidence and cannot be overlooked. Accordingly, we allow the first ground of appeal and thus, exhibit PI is hereby discounted from being relied in evidence. Arguing the second and third grounds of appeal together, Mr. Hezron assailed the conviction on the basis that it rested upon unreliable visual identification and materially contradictory evidence. He submitted that before convicting an accused person on visual identification, a court must be satisfied that all possibilities of mistaken identity have been eliminated. Although the witnesses claimed recognition, he contended that mere familiarity is not, of itself, sufficient; the court must examine the surrounding circumstances with utmost caution. The learned counsel further argued that the prosecution evidence was riddled with material inconsistencies. He relied on Saidi Athumani 9

v. Republic (Criminal Appeal No. 292 of 2022) [2024] TZCA 480 (20 June 2024, TanzLII) and Issa Mgara @ Shuka v. Republic (Criminal Appeal No. 37 of 2005) [2008] TZCA 112 (22 April 2008, TanzLII), on the proposition that the contradictions which affect visual identification go to the root of the case. He pointed out, inter alia, that PW2 testified that he saw Sosoma Masanja holding an iron bar, whereas PW3 stated that upon arrival he saw Paulo Tega holding an iron bar. He argued that such divergence was material. Moreover, the learned counsel highlighted the inconsistency as to the number of bandits, that PW2 spoke of twelve while PW3 referred to eleven. He added that PW2 testified that the assault lasted 2 minutes, whereas PW3 testified that the incident took 10 to 15 minutes. He asserted that, in the circumstances, it was improbable for PW2 to have accurately counted the number of assailants at the scene while fleeing and glancing backward, and that such assertion strained the credibility. Pointing further inconsistencies and contradictions in the prosecution evidence, Mr. Hezron argued that PW2 did not testify that he immediately named the assailants to PW3 upon reporting the incident. The learned counsel therefore spiritedly asserted that the failure to promptly name the assailants casted doubt on whether PW2 in fact saw and recognized the appellants at the scene of crime. 10

Mr. Hezron did not end there. He contended that, PW3 and PW4 gave a different account, they said that while they were at PW4's house they heard an alarm and immediately proceeded to the scene while PW2 testified that upon witnessing the assault he ran to inform PW3 who was at PW4/s residence. According to Mr. Hezron, the divergence as to how the alarm was raised and who initiated the response was material and cast doubt on the coherence of the prosecution narrative. It was his further submission that the discrepancies were not minor, on the contrary, they go to the root of the case, significantly undermining both the credibility and the reliability of the witness of the prosecution. In conclusion, Mr. Hezron urged the Court to allow the appeal. In response, Mr. Kamala robustly opposed the appellants' counsel submissions. The learned State Attorney contended, at the outset that, both PW2 and PW3 ably identified the appellants because they were known to them prior to the commission of the offence. He further submitted that the trial Judge correctly found that PW2's recognition of the appellants was reliable, particularly given that the incident occurred in broad daylight in the morning. Accordingly, he argued, the issue of visual identification did not arise as a point of contention in this case. With regard to the alleged contradictions and inconsistencies, Mr. Kamala was of the firm view that the prosecution evidence remained 11

consistent and coherent, both as to the number of bandits said to have participated in the attack and the duration of the assault. Elaborating on this submission, he contended that there existed no material discrepancy concerning the number of assailants involved in the killing of the deceased. Drawing the Court's attention to the record of appeal, the learned State Attorney conceded that PW2 testified that the assault lasted approximately two minutes, whereas PW3 placed the duration at between ten and fifteen minutes. He was, however, quick to qualify that the apparent divergence by asserting that the latter period was merely a rough estimate, encompassing not only the assault itself but also the time used in conveying the deceased to hospital. In his submission, the variance in time was neither substantive nor prejudicial, and did not in any way detract from the credibility or reliability of the prosecution witnesses. Upon being invited by the Court to clarify whether PW2 immediately named the assailants to PW3, Mr. Kamala readily conceded that the record bore no indication of any such prompt disclosure. He nevertheless maintained that the omission was inconsequential and did not occasion any doubt on the prosecution case nor diminished the fact that PW2 placed the appellants at the scene of the crime. In his concluding 12

submission, he urged that the withdrawal of charges against Masanja did not, in any way, vitiate the propriety of the appellants' arrest and subsequent arraignment for murder, and thus left the case mounted against them wholly intact. Having scrutinized the record of appeal in its entirety, and considered the counsel for the parties rival submissions, we begin by identifying what is not in dispute. The incident occurred in broad daylight, at about 9.00 a.m. It is undisputed fact that PW2 and PW3 were acquainted with the persons alleged to have been the bandits. In that context, this was not a case turning on fleeting or difficult visual identification. Equally, the variation as to whether the alleged assailants were eleven or twelve does not, standing alone, weaken the prosecution's case. What is of concern, however, are the contradictions in the evidence, which are neither minor nor inconsequential. They go to the root of the prosecution's narrative. The first critical question is the disclosure of the identity of the assailants. PW2, who claimed to have witnessed the assault, as correctly submitted by Mr. Hezron, PW2 did not immediately name the appellants to PW3 or to any other person. The record is silent on any such early disclosure. It is trite law that where the alleged assailants are known to a 13

witness, their identities would ordinarily be mentioned promptly upon reporting the incident. See Marwa Wangiti Mwita and Another v. Republic (Criminal Appeal 6 of 1995) [2000] TZCA 23 (12 June 2000, TanzLII). In a case where the alleged assailants are known to the witness, one would expect that their names would be mentioned promptly upon making the first report. That omission was neither explained nor clarified by other evidence on record. Another material divergence concerns the duration of the assault. This divergence is far from trivial. PW2 testified that the attack lasted within three minutes, whereas PW3, who arrived at the scene later, testified that it lasted for ten to fifteen minutes. This discrepancy is far from trivial. It raises fundamental questions as to the sequence and timing of events. If the incident indeed lasted only three minutes, it is difficult to reconcile PW3's observation that the assailants remained at the scene for an additional ten to fifteen minutes. The explanation advanced by the learned State Attorney, that PW2 and PW4 merely approximated the time, finds no support in the record of appeal. The evidence demonstrates clearly that PW2, who witnessed the assault and ran to summon PW3, recorded a shorter duration than that later stated by PW3. Thus, their accounts reflect materially different perceptions of the same event. This is not a minor lapse of memory or a normal error of observation; it is a 14

material contradiction that goes to the foundation of the prosecution's account. The contradictions extend to the identity of the principal assailant. PW2 testified that Sosoma Masanja wielded the iron bar and initiated the attack, whereas PW3 stated that it was Paulo Tega who was holding an iron bar and initiated the assault. This is a significant divergence, going directly to the identity of the principal assailant. The contradiction raises serious questions about the reliability and accuracy of the prosecution's evidence. The other issue to state is that if the appellants were really mentioned promptly, there was a delay in arraigning them in court. It was until 13th January, 2023 that the first, second and third appellants were arraigned. The fourth appellant was arrested and charged in July, 2022. The divergence does not end there. PW4, who arrived at the scene after PW3, did not see any of the assailants. Yet he testified that he had been informed that the assailants included Kitundu Masanja and Zabron Ntemi names not mentioned by either PW2 or PW3. This inconsistency touches the foundation of the prosecution's case and casts doubt on the reliability and credibility of PW2, PW3 and PW4 testimonies'. The contradiction concerning the identity of the alleged perpetrators undermines the prosecution's narrative and reinforces the reasonable 15

doubt that exists as to the guilt of the appellants. The principle on contradictions in criminal trials is well settled. Courts are enjoined to distinguish between minor discrepancies, which are attributable to normal human fallibility and do not affect the substance of the charge and material contradictions, which strike at the root of the prosecution case. This principle was succinctly articulated in Mohamed Said Matula v. Republic [1995] T.L.R. 3, Issa Hassan Uki v. Republic (Criminal Appeal No. 129 of 2017) [2018] TZCA 361 (10 May 2018, TanzLII) and Dickson Elia Nsamba Shapwata & Another v. Republic (Criminal Appeal No. 92 of 2007) [2008] TZCA 17 (30 May 2008, TanzLII). In Mohamed Said Matula (supra), the Court made reference to a paragraph in Sarkar, The Law o f Evidence, 16th Edition (2007), where it is stated that: "Normal discrepancies in evidence are those which are due to normal errors o f observation , normal errors o f memory due to lapse o f time, due to m ental disposition such as shock and horror at the time o f the occurrence and those are always there however honest and truthful a witness may be. M aterial discrepancies are those which are not norm al and not expected o f a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal 16

discrepancies may corrode the credibility o f a parties'case, m aterial discrepancies do." Applying the above principle to the present appeal, we are satisfied that the contradictions in the testimonies of PW2, PW3 and PW4 are not mere trivial variations. They pertain to fundamental aspects of the prosecution's case: the duration of the incident, the presence of the assailants at the scene and the association of the alleged perpetrators in committing the offence. In totality, these inconsistencies shake the foundation of the prosecution's narrative and as alluded to above, materially undermine both the credibility and reliability of its evidence regarding the identification of the appellants at the scene of crime. We therefore allow the third ground of appeal. On the fourth ground of appeal, the learned counsel for the appellants asserted that the prosecution failed to prove its case beyond reasonable doubt. He argued that the appellants' explanation that their arrest was precipitated by a pre-existing pathway dispute was plausible and consistent with the surrounding circumstances, yet the trial court dismissed it without proper evaluation. The learned counsel further submitted that both PW2 and PW3 named Mashimba Masanja as one of the alleged bandits and that he was indeed arrested in connection with the offence. However, the prosecution 17

subsequently entered a nolle prosequi in his case without furnishing any explanation for that course of action. The learned counsel for the appellants contended that the unexplained withdrawal of the charge against Masanja lends support to the defence position that the arrests may have been driven by the pre-existing dispute rather than by credible and consistent evidence of guilt. It was Mr. Hezron further argument that the testimony of the fourth appellant remained wholly unchallenged. The fourth appellant stated that upon hearing the alarm, he proceeded to the scene and found his two sons who were later arrested and that he thereafter travelled to Shinyanga solely to follow up on their predicament. That account, the learned counsel emphasized, was neither shaken in cross-examination nor rebutted by the prosecution. In law, uncontroverted material evidence cannot be lightly disregarded. In response, Mr. Kamala, maintained that the entry of a nolle prosequi in respect of Masanja bore no legal nexus to the charges preferred against the present appellants. The discontinuance of proceedings against one suspect, he submitted, does not diminish the criminal responsibility of others, each case being determined on the 18

strength of the evidence adduced against the individual accused. He further contended that the prosecution had proved its case to the requisite standard. We are mindful that the burden of proof in criminal cases rests squarely upon the prosecution. It never shifts. An accused person assumes no duty to establish his innocence; it is entirely sufficient if his account, viewed against the totality of the evidence, engenders a reasonable doubt in the prosecution's case. We agree that the discontinuance of proceedings against Mashimba Masanja does not, in itself, exonerate the appellants. We also agree with the learned State Attorney that the entry of a nolle prosequim respect of Mashimba Masanja had no legal connection whatsoever with the charges brought against the present appellants. However, we find merit in the complaint that the defence case particularly that of the fourth appellant was not challenged. The record reveals that his testimony remained unshaken in cross- examination as intimated above. In the absence of any meaningful attempt to controvert his account on material particulars, that evidence could not simply be disregarded. The law is long settled that failure to cross-examine a witness on a material aspect of his or her testimony may properly be taken to signify acceptance of the truth of that evidence. See Issa Haasan Uki v. 19

Republic (supra) and Nyerere Nyague v. Republic (Criminal Appeal No.67 of 2010) [2012] T7CA 103 (21 May 2012, TanzLII). In the latter appeal, we observed: "... a party who fails to cross examine a witness on a certain matter is deemed to have accepted that m atter and w ill be estopped from asking the trial court to disbelieve what the witness said." In light of the foregoing reasons, we are of the considered view that, the defence evidence, having remained unchallenged, cannot be brushed aside. It must be weighed together with the inconsistencies and gaps we have identified in the prosecution's case. We therefore allow the fourth ground of appeal. In the circumstances, considered cumulatively, these shortcomings generate a real and reasonable doubt as to the appellants' guilt. Particularly, the identification not being watertight, the contradictions in the prosecution evidence and the doubts raised by the defence on material facts intimated above. All these leads us to find that the prosecution case against the appellants was not proved to the required standard. As such having found that the first, third and fourth grounds of appeal have merit, the convictions of the appellants are quashed and the

sentences imposed on them are hereby set aside. Consequently, we order for immediate release of the appellants from prison unless they are being held for some other lawful causes. DATED at SHINYANGA this 4th day of March, 2026. F. L. K. WAMBALI JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL The Judgment delivered this 5th day of March, 2026 in the presence of Mr. Elias Rachuonyo Hezron, learned counsel for the Appellant and Mr. Louis Boniface, learned State Attorney for the Respondent/Republic, via virtual Court, and Mr. Elias Nkwabi, Court Clerk; is hereby certified as a 21