Gilya Mzingo & Another vs Republic (Criminal Appeal No 243 of 2023) [2026] TZCA 237 (4 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA (CORAM: LILA, J.A.. MAIGE. 3.A. And MANSOOR. J.A.^ CRIMINAL APPEAL NO 243 OF 2023 GILYA MZINGO ............................................................................ 1 st APPELLANT KWANDU MADUHU..................................................................... 2 nd APPELLANT VERSUS THE REPUBLIC...............................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Shinyanga) (Kulita, J.) dated the 14th day of December, 2021 in Criminal Session No. 4 of 2017 JUDGMENT OF THE COURT 9th February & 4th March, 2026 LILA. J.A.: The appellants, Gilya Mzingo and Kwandu Maduhu, (henceforth the 1st and 2n d appellant, respectively) have been languishing in prison following the death of Kilindila Sitobelo (the deceased) on 21 February 2016 at Gambasingu Village within Itilima District, Simiyu Region. The deceased's death was confirmed to be a result of being cut on several parts of his body by a sharp object like a panga and the body was found buried in a maize farm belonging to his wife Kwandu Maduhu. Initially, the appellants together with one Wasira Shunda were implicated with the murder of the deceased consequent upon which, they were charged with murder under sections 196 and 197 of the Penal Code [Cap 16 R.E. 2002]. Wasira Shunda, died during the trial. On 28/10/2021, a new information was substituted removing him from the charge and corrected the date of the commission of the offence. The trial ensued and, at its conclusion, the appellants were convicted as charged and were sentenced to death. At the trial, the prosecution relied on the evidence of six witnesses. Since the appeal turns not on the merits but on a point of law, we shall not delve into detailing the evidence of each witness. However, it is worth stating outrightly that the witnesses lead circumstantial evidence as neither of them witnessed the killing. Another evidence relied on was a post-mortem report establishing death of the deceased which, according to Dr. Silas Daniel Mang'wiwa (PW1) who conducted the autopsy of the deceased's body, arose from severe blood loss. An extra judicial statement of the 1st appellant was recorded by the Justice of the 2 Peace one Grace Kabula (PW2), a Resident Magistrate stationed at Somanga Primary Court. Another evidence relied on is a cautioned statement from Kwandu Maduhu (2n d appellant) confessing to the commission of the crime which was recorded by Ahmed Kamugisha (PW6) who was then a Police Officer at Itilima District implicating Gilya Mzingo (the 1st appellant). There was also oral evidence by Buka Maduhu (PW3) who was then a Gambasingu Village Chairman whom the killing incident was first reported to and caused the appellants' arrest and reported the matter to the police. Another witness was Veronica Kidamva (PW4), one of the deceased's wives, who told the trial court that she was the last person to be with the deceased who then left to the 2n d appellant's residence. Milembe Msolasa (PW5), the wife of one John Kilimbila who was deceased's son, told the rial court that, she last saw the deceased on 21/2/2016 when she went to milk the cows but the following days, she did not see him. These witnesses sought to establish that the motive behind the deceased's murder was his refusal to permit his daughter one Malika Kilindila to be married by a person from Ibulyu Village instead of Wasira Shundi who was his preference as they lived in the same village. 3 In their respective defence evidence, both appellants denied the charges, claiming torture in recording the confessional statements. The High Court found the charge proved to the hilt, convicted both of them and sentenced each to suffer death by hanging. They were aggrieved and they lodged a joint memorandum of appeal with nine (9) grounds on 27/3/2023. Subsequently, on 5/6/2024 and 6/2/206, they lodged two supplementary memoranda of appeal with two (2) and four (4) grounds of appeal, respectively. As it was before the trial court, each appellant was allocated an advocate to represent him before the Court. Mr. Audax Constantine, learned advocate, represented the 1st appellant, while the 2n d appellant had the services of Ms. Gloria Lucius Ikanda, also learned advocate. For the other side, Ms. Sophia Fidelis Mgassa and Ms. Nancy Medard Mushumbusi, both learned Senior State Attorneys, appeared. Without being detained so much, both sides are in agreement that the appeal turns on ground one (1) of appeal in the supplementary memorandum of appeal lodged on 5/6/2024. In it, the appellants are faulting the High Court thus: "1. The tria l Judge erred in law to rely and act upon the inform ation which was not audibly read out soon after being amended, it really prejudiced the appellant hence they gone (sic) c/s 276 (1) and (2) o f the CPA, [Cap 20, RE:2002], See page 41 and 42 o f the proceeding. See the authority from the case o f JUMA GULAKA and Others V.R, Cr. App. No.279 o f 2022 - CAT - Mwanza (unreported)." The learned counsel of the parties are of a concurrent view that after the prosecution had sought and granted leave to substitute a new information, the trial Judge was obliged to ensure that the substituted information is read out to the appellants and each is called upon to plead to it. The record, on pages 41 and 42 bears no such proceedings, they maintained. They shared the view that, the failure by the trial court to comply with the mandatory requirements of section 276 of the Criminal Procedure Act, Chapter 20 R.E. 2002, constitutes a fatal irregularity that vitiates the entire trial. They maintained that the defect goes to the root of the proceedings and cannot be cured under section 388 of the CPA. However, in view of existence of seriously incriminating evidence on record, they proposed an order for retrial be made beginning from when the new information was substituted. We have keenly perused the record and given due consideration to the concurrent position taken by the learned counsel. We preface our deliberation with quoting in extenso the alleged contravened provisions of the law. They lay down as follows: "276(1) Every objection to any form al defect on the face o f an inform ation shall be taken im m ediately after the inform ation has been read over to the accused person and not later. (2) where before a tria l upon an inform ation or at any stage o f the tria l it appears to the court that the inform ation is defective, the court shall make an order fo r amendment o f the inform ation as it thinks necessary to m eet the circum stances o f the case unless, having regard to the m erits o f the case, the required amendment cannot be made without injustice; and a ll such amendments shall be made upon such terms as to the court shall seem ju s t " Closely examined, these provisions are principally instructive as to when and what should be done when it is realized, at any stage of the 6 trial, that the charge is defective or is not compatible with the evidence. They mandatorily require the amendment be sought and be effected in the information and under subsection (3), the trial court is required to treat that amended information as being the one the appellant shall be tried on. The requirement to have the appellant called upon to plead to the substituted information is provided under subsection (1) which mandatorily requires the accused to plead instantly thereto. In the matter before the Court, the record of appeal shows, on 28/10/2021, that upon an application by the prosecution, the new information was substituted meaning that the original charge to which the appellants had pleaded was withdrawn and a new information was substituted therefor. The amended information introduced new particulars in the information as reflected in the prayer for amendment made by the prosecutor Ms. Chema Maswi, learned State Attorney, at page 42 that: "MS. CHEM A M ASW I, SA: The m atter is for tria l but I pray to substitute the inform ation as one o f th e a ccu se d p e rso n s p a sse d aw ay. W e a lso in te n d to co rre c t th e d ate for commission o f crime. AD VO CATES: No objection COURT: Prayer granted. The inform ation is amended pursuant to section 276(2) o f the CPA." (Emphasis added) Thereafter, according to the record, assessors were introduced and hearing of the case proceeded by the trial court recording the evidence of two prosecution witnesses. The substituted information removed Wasira Shunda and corrected the date of the commission of the offence to be 21 February, 2016 instead of 23rd February, 2016. These were substantial amendments to the information which ought to have been brought to the knowledge of the appellants by the trial court by calling them to plead afresh, as mandatorily required under sections 276(1) and (2) of the CPA. With respect, the learned trial Judge apparently aware that the information had been amended, he did not call upon the appellants (then accused persons) to plead to the amended (substituted) information. The omission, as argued by Ms. Ikanda and conceded to by Ms. Mushumbusi, denied the appellants the opportunity to understand the contents (new allegations) in the substituted information thereby infringing their right to 8 a fair trial. The learned trial Judge, therefore, flouted the procedure rendering the proceedings a nullity, as consistently held by this Court in a chain of decisions such as in Diaka Brama Kaba & Another vs Republic, Criminal Appeal No. 211 of 2017 [2020] TZCA 1928, where failure to amend the information or read it over after withdrawal of charges against a co-accused violated fair trial principles, leading to quashing of the conviction. Other decisions cementing the same positions include Ngalaba Luguga @ Ndalawa vs Republic (Criminal Appeal No. 66 of 2019) [2022] TZCA 435 and in Bernard Kagulu Bukima v. Republic (Criminal Appeal No. 825 of 2023) [2025] TZCA 728, where the Court underscored the position that failure to read to the accused persons and call them upon to plead to an amended charge vitiates the proceedings, warranting nullification of the proceedings. For the aforesaid reasons, we allow the appeal, nullify the proceedings of the trial court from the stage (on 28/10/2021) when a new information was admitted onwards including the proceedings and judgment of the trial court and the orders thereof. For clarity, the appellants' convictions are hereby quashed and the sentences set aside. And, for the interest of justice, we hereby order that the appellants and 9 the trial Court record be remitted to the trial court for it to proceed with the trial from the afore stated stage according to law. In the meantime, the appellants to remain in remand prison awaiting for continuation of the trial as directed. DATED at SHINYANGA this 3rd 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 4th day of March, 2026 in the presence of Appellants appeared in person, Mr. Shabani Mvungi, learned counsel holding briefs for Mr. Audax Constantine, learned counsel for the 1st Appellant also for Ms. Gloria Ikanda, learned counsel for the 2n d Appellant and Ms. Mboneke Ndimubenya, learned Senior 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.