Limi Limbu vs Republic (Criminal Appeal No 250 of 2023) [2026] TZCA 238 (4 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA ICQ RAM: LILA, J.A., MAIGE, J.A. And MANSOOR, 3.A.) CRIMINAL APPEAL NO 250 OF 2023 LIMI LIMBU.....................................................................................APPELLANT VERSUS THE REPUBLIC............................................................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Shinyanga) (Ktilitt, J.) dated the 23 rd day of September, 2022 in Criminal Session Case No. 130 of 2012 JUDGMENT OF THE COURT 11th February & 3rd March, 2026 LILA. J.A.: In the High Court sitting at Shinyanga (the trial court), the appellant was tried, convicted of murder and sentenced to suffer death by hanging. The information alleged that on the 25th day of August 2001, at Mwamabu Village, within Bariadi District in Simiyu Region, the appellant murdered a certain Tabu Maimathi, her own third born, by strangling her. She is aggrieved by the conviction and sentence and is before the Court seeking to challenge that verdict. The following brief factual background presents the essence of this appeal. It was, throughout the length and breadth of the trial, commonplace that the appellant was married to one Maimath and were blessed with three issues, the deceased being the last born. In the course of their marriage, they separated and one Kijiji Nyamadu offered to marry the appellant on condition that before doing so, they should kill her baby, the deceased. At the height of their mission, on 25/8/2011, they allegedly managed to do so and threw the deceased's body on the hill. The evidence was further to the effect that, on the fateful day, the appellant told Sayi Majebele (PW1) that she was going to Ukerewe to hand back the deceased to her father but only to be seen by PW l's wife one Kwandu Nyamaga's residence at Mwagu Village but without the child (the deceased). Upon further inquiry, it was said, she revealed that, in collaboration with Kijiji Nyamagu, she strangled the deceased to death. She led the search team towards the hill where the deceased's body was seen. PW1 reported the matter to Dutwa Police Station and the policemen, one Nyahende Majebele (PW2) and E. 2878 D/SGT 2 Dominic went to the crime scene with a doctor who conducted the autopsy. The appellant's cautioned statement (exhibit P4) was recorded by one Fulgence Nicas Manya (PW5) who was then a policeman at the OC-CID's Office Bariadi and an extra-judicial statement (exhibit P3) was recorded by Liberata Mhagama (PW 4) who was the Primary Court magistrate stationed at Somanda Primary Court. In both statements, it was alleged that she confessed to kill the deceased. The majority of the facts constituting the prosecution case was not disputed by the appellant in her sworn defence save for who killed the deceased. She told the trial court that before she could take the deceased to her father at Ukerewe, one Kijiji, her lover, regularly visited the house of PW1. Later on, Kijiji became her lover and promised to marry her but for a condition that, the deceased to be sent to her father first. That, he volunteered to take the deceased to her father and, actually took her. That Kijiji later on returned telling the appellant that he left the deceased in the cave. That, upon being inquired as to the whereabouts of the deceased by her maternal aunt one Nogono who was PWl's wife, she replied that she did not know. That prompted an alarm (mwano) being raised and, after the people had gathered, she led them to where Kijiji Nyamadu said he had left the deceased and found the deceased already dead. Kijiji Nyamadu, she said, disappeared after the incident. As earlier on hinted, having convinced that the prosecution had proved the charge against the appellant beyond reasonable doubt, the trial court proceeded to convict the appellant and sentenced her to the prescribed mandatory sentence of death. She is now before the Court, challenging both the conviction and sentence upon a four (4) grounds memorandum of appeal. In ground three (3) of appeal, the appellant, faults the learned trial Judge for not considering what she termed as "her intellectual capacity", the point Ms. Erieth Kagemulo Barnabas, learned advocate, who represented her before us, brought to the fore and vigorously amplified it as a point of law. She was convinced that such sole ground of appeal is able to dispose of the appeal. Armed with a medical report issued by the Isanga Institution Ref. 10600/2019 dated 26/11/2019 addressed to the High Court Shinyanga, in respect of "Crim inal Sessions Case No. 130 o f 2012 a t Shinyanga, The Republic versus Lim i Lim bu" Ms. Barnabas stoutly argued that, the trial court ignored the report from Isanga Institute made by the In-charge under section 220(2) of the Criminal Procedure Act (the CPA) which was a result of its own order made on 26/8/2019 in terms of section 220(1) of the CPA requesting the Mental Institute to examine the appellant's mental status at the time the offence was committed. It was her conviction that whatever the report said of the mental status, the trial court ought to have appreciated receiving it, admitting it in the court record and then make a special finding before proceeding with the trial of the appellant to its conclusion. The omission, according to her, meant the proceedings were conducted without knowledge of the mental status of the appellant which the court had already doubted and ordered for examination. Heavily relying on pages 9 and 19 to 21 of the Court's decision in the case of Thomas Pius vs Republic, Criminal Appeal No. 145 of 2019 [2022] TZCA 487 (2 August 2022) TanzLii, which expounded the procedure to be followed when the court makes an order for medical examination in terms of sections 220(1) and 220(2) of the CPA, she was firm that the procedure was flawed by the High Court as a result of which, the appellant was not fairly tried rendering all the proceedings and orders consequential thereto a nullity. In Ms. Barnaba's firm view, if the Court agrees with her, having nullified the proceedings, judgement and orders thereof, the appellant deserves being set at liberty pointing out that, this is not a fit case to order a retrial. She reasoned that, first, it will be the second appellant's trial having been earlier on ordered so by the Court on 20/2/2018 as reflected at page 10 of the record of appeal, second, she has already stayed in prison for about fifteen (15) years as she was first arraigned on 29/8/2011 as reflected at page 2 of the record of appeal in the inquiry (committal) proceedings. Apart from that, she pointed out a number of contradictions she alleged to obtain in the witnesses' evidence on record. Enlisting them, she at first, wondered how a statement, be it cautioned or extra-judicial, could be valid if it was made by a person whose soundness of mind was doubted to the extent of ordering a medical examination be done. On that account, she impressed upon the Court to find that exhibits P4 and P3 are doubtful. Another attack on exhibit P3 was that it was recorded beyond the prescribed period of four hours' time and was not part of the documents read out during committal proceedings, denying the appellant to know its substance ahead of her trial. For exhibit P4, she contended that its recording contravened the Chief Justice's Guidelines. According to her, the totality of the outlined infractions is that they tear apart the prosecution case making it weak. As a result, she insisted, if a retrial order is made, it will accord the prosecution to unjustifiably fill such yawning gaps in their evidence. Directing her mind to one Nyange Nobono, the deceased's grandmother named by PW3, Ms. Barnabas whined the prosecution for not calling such a crucial witness which entitled the trial court to draw an adverse inference on the prosecution case. On that contention, she relied on the Court's decision in Boniface Kundakira Tarimo vs Republic, Criminal Appeal No. 351 of 2008 (unreported) which underscored that legal position. Other weaknesses pointed out are contradictions in the evidence by prosecution in such issues like time of the killing between the confessional statements, the manner of killing and witnesses present at the crime scene. In response, Ms. Nancy Medard Mushumbusi who was assisted by Ms. Sophia Fidelis Mgassa, both learned Senior State Attorneys, had no qualms with the contention by Ms. Barnabas in respect of the medical report being ignored and the obtaining legal consequences that the proceedings, judgment and orders therefor are a nullity. She took issue and therefore parted ways with Ms. Barnabas on whether an order of retrial should be made or not. She vehemently argued that the prosecution case is impeccably strong and could not be shaken by the alleged infractions to which she had different views. She contended that exhibits P3 and P4 were properly taken and the alleged infractions are minor. She was, briefly, minded that for the interest of justice, an order of retrial be made. On our part, having heard the concurrent views of the learned minds of the parties and examined the applicable law and the cited Court's decision of Thomas Pius vs Republic (supra) as were referred to us by Ms. Barnabas, we need not detain ourselves much on the issue respecting non-attendance by the trial court of the appellant's medical report from Isanga Institute regarding the appellant's mental status at the time of committing the offence. On the face of the copy of the said report availed to us, there are sufficient pointers to establish beyond doubt that it was duly availed to the trial court on 26/11/2019 long before trial of the appellant commenced on 1/9/2022. We entirely agree with both learned counsel that the procedure for dealing with the medical report from a mental hospital was flawed. In the cited case of Thomas Pius vs Republic (supra) at page 15 of the typed judgment, the Court had an occasion to discuss a situation akin to the instant one. In it, it restated its earlier position in the case of Francis Siza Rwanda vs Republic, Criminal Appeal No. 17 of 2019 (unreported) and drew a distinction between the procedure to be adopted where an accused is unable to follow the proceedings and that of an accused who wished to rely on insanity as a defence. In that case the learned counsel who represented the accused doubted the mental status of theaccused when the case was called on for preliminary hearing and prayed the trial court to order him to be detained in a mental hospital for medical examination under section 219(1) and (2) of the CPA. The Court observed that: "On our part, having carefully heard and considered the rival arguments together with the record o f appeal, we sh all start with the first ground o f appeal that the report for m edical exam ination o f the appellants state o f m ind was not disclosed during tria l nor was there a special finding on it. It should be understood that the law provides two separate procedures for a defence o f insanity. I f an accused person intends 9 to raise a defence o f insanity as a bar to a trial, in that, the accused person is incapable o f standing trial, the procedure o f raising it is provided under sections 216 to 218 o f the CPA. Whereas, if an accused person wishes to raise it as a defence o f insanity to a charge or inform ation that at the time o f com m itting the offence he was insane, the procedure is provided under sections 219 and 220 o f the CPA. We are fortified in that account in the ligh t o f what we said in the case o f MT. 81071 PT E Yusuph H a ji @ H u ssein v. The R e p u b lic (supra) that: "There is a marked distinction between unfitness to make a defence due to insanity and plea o f insanity as a defence to a charge or inform ation. Sections 216 to 218 o f the Act, lay down the procedure to be follow ed where an accused person is suspected to be incapable o f making his defence. In such situations the issue is as to unfitness o f an accused person to plead and to take his tria l and, thus, the unsoundness o f m ind m ust relate to the time o f the tria l and the inquiry m ust be in relation to an accused's m ental condition a t the tim e o f 10 the tria l as distinct from his m ental condition a t the tim e o f the commission o f the alleged offence (see T arino v. The R e p u b lic [1975] E.A. 553). C on versely; w here it is d e sire d to p le a d in s a n ity a s a defence, th e issu e , w o u ld b e a s to th e sta te o f m in d o f th e accu se d a t th e tim e o f th e com m ission o f th e a lle g e a ct. Such a d efen ce is g o ve rn ed b y th e p ro v isio n s o f se c tio n s 2 1 9 a n d 2 2 0 o f th e A c t." Guided by the above position, in respect of the ignored medical mental hospital report, the Court observed at page 17 that: "th ird ; the findings o f the m ental hospital as indicated in exhibit P.5 were not read out and not in any way dealt with. I f the whole exercise and the report were unnecessary, we are le ft wondering why the court made the order detaining the appellant in a m ental hospital for a period dose to ten months. We see no justification for that Since the tria l judge had opted to invoke the provisions o f section 220(1) o f the CPA, he was obligated to com ply with it to the letter and not half-heartedly as he did. From the nature o f the step taken by the learned tria l ii judge, it seems dear to us that the appellant's tria l proceeded while the tria l court was lingering in doubts over his m ental status..." The finding is in all fours with the provisions of section 236 (3) and (4) of the CPA which provide that: "3) Where the court adm its a m edical report signed by the m edical officer in charge o f the m ental hospital where the accused was detained, the accused and the prosecution sh all be entitled to adduce such evidence relevant to the issue o f insanity as they may consider fit (4) Where, on the evidence on record, it appears to the court that the accused did the act or made the om ission charged but was insane so as not to be responsible for his action at the tim e when the act was done or om ission made, the court shall make a special finding in accordance with the provisions o f subsection (2) o f section 235 and a ll the provisions o f section 235 sh all apply to every such case. This position was lucidly elaborated in our previous decision in MT. 81071 PTE Yusuph Haji (supra) thus: 12 "First, where it is desired to raise the defence o f insanity a t the trial, such defence should best be raised when the accused is called upon to plead. Second \ upon being raised the tria l court is enjoined to adjourn the proceedings and order the detention o f the accused in a m ental hospital fo r m edical examination. Third, a fte r re c e ip t o f th e m e d ica l re p o rt th e case p ro ce e d s in th e n o rm a l w ay w ith th e p ro se cu tio n le a d in g evid en ce to e sta b lish th e ch arg e la id a n d th en d o se s its case. Fo u rth , upon th e clo su re o f th e p ro se cu tio n case, th e defen ce le a d s evid en ce a s a g a in st th e ch arg e la id , in clu d in g m e d ica l evid en ce to e sta b lish in s a n ity a t th e com m ission o f th e a lle g e d a c t A nd, fin a lly , fifth , th e c o u rt th en d e cid e s on th e evidence, w h eth er o r n o t th e defen ce o f in s a n ity h a d p ro v e d on a b a la n ce o f p ro b a b ilitie s. I f su ch e n q u iry be d e term in e d in th e a ffirm a tiv e , th e c o u rt w ill then m ake a s p e c ia l fin d in g in accord an ce w ith se ctio n 219 (2 ) a n d 2 2 0 (4 ) o f th e A c t a n d p ro ce e d in accord an ce co n se q u e n tia l ord ers. '{Em phasis added) 13 In the light of the foregoing except, therefore, after the medical report on the mental status of an accused is received by the trial court which made an order for mental examination, it must be admitted by the trial court so as to form part of the court record. Then, the trial court should hear the evidence by both sides and examine the report. The trial shall then examine the accused in the light of the medical report so as to form an independent finding whether the accused was of sound mind at the time of committing the offence. The reason of forming an independent view is founded on settled position that, a medical report constitutes an expert opinion to which the court is not bound. The justification is that expounded by Lord President Cooper in Davie v. Edinburgh Magistrates, 1953 S.C. 34 at page 40 cited by the Court in the case of The D.P.P vs Shida Manyama @ Selemani Mabuba, Criminal Appeal No. 285 of 2012 (unreported), on the duty of such experts: - "to furnish the court with the necessary scientific criteria for testing the accuracy o f their conclusion so as to enable the court to form its own independent judgm ent by the application o f these criteria to the facts proven in evidence." 14 Unfortunately, in the instant appeal, it is common place that the above procedure was not followed. We accordingly, entirely agree with the learned counsel that the appellant was not fairly tried. He was entitled to have the report on her mental condition dealt with legally. We are mindful of what a fair trial entails as we explained in the case of Alex John V R Criminal Case No. 129 of 2006 CAT (Unreported) cited and summed up by the Court in the case of Lazaro Stephano vs Republic, Criminal Appeal No. 9 of 2013 (unreported) that: "In essence, what the Court said in the case was that the rights o f the accused person as guaranteed by any provision o f the law m ust not be infringed by the Court. The Court has a mandatory obligation o f inform ing the accused person o f that rig h t Whether he chooses to exercise the right or not, is entirely a different m atter." In view of the above settled position, failure by the trial Judge to deal with the medical report, in the instant appeal, denied the appellant and her defence counsel the opportunity and right to know the outcome of the medical examination the trial court had ordered to be conducted and allow the trial Judge to apply his mind so as to make an 15 • independent finding (special finding) on the mental status of the appellant at the time of committing the offence before resuming the trial. As rightly complained by Ms. Barnabas, the appellant was not fairly tried with the consequence that the omission vitiated the trial. As for the remaining grounds of appeal, we are of the firm view that we do not have to discuss them because this sole ground adequately disposes the appellants' appeal As demonstrated above, the way forward marked a departure point between Ms. Barnabas and Ms. Mushumbusi. The former, after pinpointing various issues which to her amounted to weaknesses in the prosecution case amenable to being corrected if a retrial order is made, she was firm that this is not a fit case to order so citing to us page 6 of our decision in the case of Boniface Kundakira Tarimo vs Republic, Criminal Appeal No. 351 of 2008 (unreported) to fortify her position. Ms. Mushumbusi held a different view. On our part, we have seriously considered the contending views by the learned counsel. Alive of the principle set in the often cited case of Fatehali Manji vs R, (1966) E.A. 343 that, a retrial order should 16 not be made where it is likely to afford an opportunity to the prosecution to fill up yawning gaps in their case at the detriment of the appellant, we have examined the record and the evidence alleged to be subject of correction by the prosecution. On the face of them, they are mostly documentary and have time limit for recording them. They have been already recorded, produced, read out during committal proceedings and served on the appellant after being committed to the High Court for trial. We cannot imagine that there are chances of such documentary evidence being corrected without involving the appellant and still remain valid. Accordingly, on the whole, we find Ms. Barnaba's arguments unsubstantiated. All said, we allow the appeal. The proceedings from immediately after the trial court ordered the appellant to be sent to a mental hospital, that is to say from 1/9/2022 when she was arraigned to answer the information before Kulita, J, are hereby nullified. In actual fact, the appellant has to be arraigned afresh. The appellant's conviction is hereby quashed and the sentence set aside. The record be remitted to the High Court for the learned trial Judge to first deal with the medical report from the mental institute according to law before proceeding with the trial of the appellant. DATED at SHINYANGA this 3rd day of February, 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 Appellant appeared in person, 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. D. R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL 18