Suleiman Masalu @ Mwita vs Republic (Criminal Appeal No. 258 of 2023) [2026] TZCA 232 (4 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA (CORAM: LILA. J.A., MAIGE, J.A., And MANSOOR, J.A.) CRIMINAL APPEAL NO. 258 OF 2023 SULEIMAN MASALU @ MWITA ..................................................... APPELLANT VERSUS THE REPUBLIC ......................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Shinyanga) (Massam. J.) dated the 14thday of December, 2022 in Criminal Session No. 35 of 2020 JUDGMENT OF THE COURT 9h February & 4h March, 2026 MANSOOR. J.A.: The appellant, Suleiman Masalu @ Mwita, was charged, tried, convicted and sentenced by the High Court of Tanzania at Shinyanga for the murder of Laurent s/o Joseph, contrary to section 196 read together with section 197 of the Penal Code, Cap 16 R.E. 2002. The information stated that, he committed the offence on 24th December 2017 at Kabale Village, within Kahama District in Shinyanga Region. The prosecution case, given by the prosecution's eight witnesses and four exhibits, began in the morning of 24th December 2017. PW1, Yona i Mafie, the Officer Commanding CID at Kahama Msalala, received a call from the Village Executive Officer of Kakola. He was informed that, at the house of one Laurent Joseph (the deceased), the door was locked from outside but blood was seen oozing from inside the house. PW1 assembled a team including a doctor (PW3) and proceeded to the scene. Upon arrival, they found the door secured with a padlock. They broke the door through its frame and entered. Inside, they found the deceased lying dead with multiple wounds all over his body. The doctor, PW3, Dr. Dominic Mipawa, examined the body and concluded that, death had occurred. He later prepared a post-mortem report (Exhibit P2) indicating the cause of death as hypovolemic shock due to severe bleeding from cut wounds. Meanwhile, at around the same time, a man had presented himself for treatment at Kina Mapula Dispensary at Kakola. He had a deep cut wound on his hand. The dispensary attendant noted that, the man had no PF3 (Police Form No. 3) and his demeanour was suspicious. The Village Executive Officer was informed, who in turn alerted the police. PW5, Alfred Kanyama, a police officer, was dispatched to the dispensary. He found the man receiving treatment. According to PW5, the man claimed he had been attacked by robbers. PW5 found this explanation unsatisfactory because the 2 place where the man claimed to have been attacked was far from the dispensary, and there were other closer dispensaries along the way. The man's clothes were also covered in blood. PW5 decided to take him to the police station for further interrogation. This man was later identified as the appellant, Suleiman Masalu @ Mwita. The appellant was detained at the police station. On 25th December 2017, PW5 was instructed to conduct a search at the appellant's rented room at Rose A Guest House. The search was conducted in the presence of PW8, Mariam Masanja, the guest house attendant. According to PW5 and PW8, the following items were recovered: a jewellery weighing scale (black in colour and bound with super glue), five padlock keys, a pair of sandals with blood stains, two pieces of blood-stained cloth, a scissor, and some money. A certificate of seizure (Exhibit P4) was prepared and signed by the appellant, PW5, and two other witnesses. Later that same day, PW2, D/Sgt Simon, together with PW1 and others, took the keys recovered from the appellant's room to the deceased's house. They attempted to open the padlock that had secured the deceased's door. According to their testimony, the keys opened the padlock successfully. PW6, Kurwa Joseph, the deceased's brother, was present and witnessed this. PW6 also identified the jewellery weighing scale as belonging to the deceased, stating that, the deceased was dealing in the jewelry business. On 8th January 2018, various exhibits were sent to the Government Chemist for analysis. These included: blood from the deceased's wound and his jeans trouser, blood taken from the appellant's wound, blood taken from one Bunjukano Masai, blood from the deceased's sitting room, a stove, the padlock, the sandals taken from the appellant's room, blood from a footprint of the appellant, blood from inside the deceased's door, and blood from outside the deceased's door. PW4, Kaijunga Brass, a Government Chemist, testified that, after examination, the results showed that, the blood from the appellant matched the DNA found on the padlock and the sandals. The deceased's blood did not match those items. The report (Exhibit P3) was admitted in evidence without objection. The appellant, in his defence, denied involvement in the murder. His account was that, on the material night; after working at the house of Kurwa Joseph (PW6), he was asked to escort some relatives. On the way, he was attacked by robbers who struck him on the head and cut his hand, rendering him unconscious. He regained consciousness at around 4:00 am, and decided to return the motorcycle he had borrowed to the owner Dickson Isaka (PW7). He then went to the hospital. He claimed that, the items found in his room, including the weighing scale and keys, were not his, and he denied any involvement in the death of the deceased. The trial court evaluated the evidence and found the prosecution's case proved beyond reasonable doubt. The conviction was based on several factors: the discovery of the deceased's belongings in the appellant's room; the Government Chemist report linking the appellant to the padlock; the appellant's failure to report the alleged robbery to the police; his decision to go to a distant hospital when there were closer dispensaries; and the court's finding that the appellant failed to cross-examine key witnesses on crucial points. The appellant was then sentenced to suffer death by hanging. Aggrieved by the conviction and sentence, the appellant, through his advocate Mr. Augustino M. Ijani, lodged this appeal. The memorandum of appeal contained 21 grounds, supplemented by additional 4 grounds. At the hearing before us, Mr. Ijani combined and argued grounds 4, 5, 7, 8 & 9, 11 & 12 & 14, 17, and 21 of the original memorandum, along with ground 4 of the supplementary memorandum. The remaining grounds were abandoned. The grounds argued by Mr. Ijani centered on broken chain of custody for exhibits PI, P3, and P4; improper filling of the seizure certificate (Exhibit PI); failure to exhibit the padlock and other seized items; unclear handling of blood samples; contradictory evidence on the deceased's clothing; lack of connection between the appellant and the deceased; absence of motive; and overall poor investigation. Mr. Ijani's submissions were as follow; On ground 4, concerning the chain of custody, he submitted that Exhibit P3, the Government Chemist report, was unreliable because the prosecution failed to explain how the exhibits were transferred from the police station to the Government Chemist in Mwanza, and then to Dar es Salaam. He submitted that; a broken chain of custody renders exhibits inadmissible. He further argued that other items, such as the stove and the blood sample of Bujukano Masai (who was not tried), were not clearly accounted for, creating doubt about the handling of all exhibits. On ground 5, Mr. Ijani attacked the certificate of seizure, Exhibit PI, submitting that, it did not comply with section 39(3) of the Criminal Procedure Act [Cap 20 R.E. 2022] as the name of the officer who conducted the search was not indicated on the certificate. Regarding grounds 8 and 9, counsel argued that although a padlock was allegedly seized, it was never tendered in court as an exhibit. The keys 6 and weighing scale were exhibited, but the remaining six items listed in the certificate of seizure (Exhibit P4) were never produced, and there was no explanation for their absence. On ground 12, Mr. Ijani submitted that the DNA evidence was unreliable because it included a sample from Bujukano Masaai, whose case was separate, and there was no explanation of how or where that sample was obtained. Concerning ground 17, counsel pointed to material contradictions: PW1 testified that, the deceased was found wearing only a boxer, while the post-mortem report (Exhibit P2) indicated the deceased was wearing jeans trousers soaked with blood. This contradiction, he argued, went to the root of the prosecution's case and was not resolved. On ground 21 and supplementary ground 4, Mr. Ijani submitted that, there was no direct evidence connecting the appellant to the deceased, and no motive was established. He argued that, the circumstantial evidence did not irresistibly point to the appellant's guilt. He further contended that, malice aforethought was not proved. In reply, Mr. Satuninus Kamala for the respondent opposed the appeal. He conceded that, there was a gap in the chain of custody but argued that, the gap did not prejudice the appellant. He submitted that, the certificate of seizure, Exhibit PI, was not required by law to be signed by the searching officer, and that, not all seized items must be tendered in court. He relied on the appellant's conduct, particularly his failure to report the alleged robbery and his decision to go to a distant hospital without a PF3, as evidence of guilt. He maintained that, the evidence, taken as a whole, was sufficient to sustain the conviction. In rejoinder, Mr. Ijani reiterated his submissions in chief. We have carefully considered the submissions of both counsel and the entire record of appeal. From the grounds of appeal and the submissions of both counsel, the following issues arise for determination in this appeal: 1. Whether the chain of custody for the exhibits was broken. 2. Whether the seizure certificates were properly filled and compliant with the statutory requirements. 3. Whether failure to produce seized items in court weakened the prosecution's case. 4. Whether the circumstantial evidence established a sufficient connection between the appellant and the deceased, including proof of motive and malice aforethought. 8 Starting with the issue whether the chain of custody for the exhibits was broken, the handling of the exhibits in this case was, to say the least, gravely deficient. The prosecution's case hinged significantly on the Government Chemist report, Exhibit P3, which purported to link the appellant's blood to the padlock and the sandals. Yet the record is silent on how these vital exhibits were handled from the moment of seizure until they reached the Government Chemist. The law on the chain of custody is well settled. In the case of Mohamed Rashid Said vs Republic (Criminal Appeal No. 86 of 2020) [2020] TZCA 1782 (24 September 2020), this Court emphasized the importance of establishing a clear and unbroken chain of custody for exhibits. The prosecution must account for every stage of handling, from seizure to analysis, to eliminate any possibility of tampering, substitution, or contamination. Where the chain is broken, the evidentiary value of the exhibit is fatally compromised. In the instant case, PW4, the Government Chemist, testified that, he received eleven exhibits, including blood samples and the padlock. He stated, they were brought with a letter from the OCCID Msalala Bugalama. However, no witness was called to explain how these items were transported from Kahama to Mwanza, who handled them, where they were kept pending 9 transmission, and how they were transferred from Mwanza to the Chief Government Chemist in Dar es Salaam, where PW4 was based. This gap is not a mere technicality; it goes to the very heart of the integrity of the evidence. Furthermore, the record shows that, a blood sample was taken from one Bujukano Masai, who was not tried. There is absolutely no evidence on record explaining how and where this sample was obtained, who authorized its taking, and under what conditions it was stored. The presence of this unexplained sample in the exhibits sent to the Government Chemist casts a long shadow of doubt over the entire testing process. It raises the very real possibility of cross-contamination or confusion of samples. It is our opinion, where there is a real risk that evidence may have been tampered with, that evidence must be excluded. The broken chain of custody and the unexplained presence of a third party's blood sample fatally undermine the reliability of Exhibit P3. As to whether the seizure certificates were properly filled and compliant with statutory requirements. The prosecution's handling of the physical exhibits was equally problematic. Section 38(3) of the Criminal Procedure Act [Cap 20 R.E. 2019] provided: 10 "(3) Where anything is seized in pursuance of the powers conferred by subsection (1) the officer seizing the thing shall issue a receipt acknowledging the seizure of that thing, being the signature of the owner or occupier of thepremises or his near relative or other person for the time being in possession or control of the premises, and the signature of witnesses to the search, if any." Exhibit PI, the certificate of seizure for the padlock and trouser, was filled by D/Sgt Simon (PW2). However, the certificate does not indicate the name of the officer who conducted the search. PW1, Yona Mafie, admitted in cross-examination that, he was not the one who recorded the seizure, and that D/Sgt Simon did so. The omission of the searching officer's name on the certificate is not a mere irregularity. It is a failure to comply with the statutory requirement designed to ensure transparency and accountability in the seizure process. This omission makes it impossible to verify who actually conducted the search and under what authority. In the case of David Athanas @ Makasi & Another vs Republic (Criminal Appeal No. 168 of 2017) [2018] TZCA 65 (10 July 2018) regarding the issue of complying with the law in seizing exhibits, the Court held that; "It is in evidence that the search was conducted at Chinangali, Dodoma and the certificate of seizure ii (Exh P3) was filled at Manyoni. With due respect, as per section 38 (3) of the Criminal Procedure Act, CAP 20 R.E 2002, the certificate of seizure ought to have been signed at the place where the search was conducted and in the presence of an independent witness. Since the certificate of seizure was not signed at Chinangaii, the place where the search was conducted and considering that there was no independent witness present as required by law, the said certificate cannot be accorded weight." Another issue is whether the failure to produce seized items in court weakened the prosecution's case. Exhibit P4, the certificate of seizure for the items found in the appellant's room at Rose A Guest House, listed eight items. These included a weighing scale, five keys, a scissor, two pieces of cloth, and a pair of sandals. Yet, during the trial, only the keys and the weighing scale were identified and tendered. The remaining six items were never produced in court, and no explanation was offered for their absence. In Allan Duller vs Republic (Criminal Appeal No. 367 of 2019) [2021] TZCA 689 (23 November 2021) this Court when affirming the decision in Joseph Leonard Manyota vs Republic [2017] TZCA 260 (11 August 2017) had this to say; "...not every time the chain of custody is broken an exhibit will not be admitted in evidence. To say the 12 least, this did not relieve the court from discharging its duty to satisfy itself that the item seized is the one produced in court as exhibit" Therefore, as what happened in present case, we are of the view that, the failure to produce seized items which are material to the prosecution's case, without any explanation, weakened the probative value of the evidence and entitles the court to draw an adverse inference against the prosecution. The absence of these items, particularly the blood-stained clothes and the scissor which could have been subjected to independent testing, leaves a significant hole in the prosecution's narrative. Regarding the last issue as to whether the circumstantial evidence established, sufficiently proved the prosecution's case. It is evident that, the prosecution case was circumstantial. In such cases, the law requires that, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. See Sikujua Idd vs Republic (Criminal Appeal 484 of 2019) [2021] TZCA 427 (27 August 2021). The evidence must form a complete chain which irresistibly points to the accused as the perpetrator. In this case, there is no evidence of any motive. The appellant was a builder who occasionally worked for PW6, the brother of the deceased. The 13 trial court speculated that, the jewelry weighing scale belonged to the deceased because the deceased was a jewellery dealer, and that its presence in the appellant's room connected him to the crime. PW6 stated that the scale was "black in colour which binded with super glue," but he did not provide any unique identifying marks, such as a serial number or a distinctive feature, that would distinguish it from any other scale of similar appearance. In the absence of such identification, the nexus between the appellant and the deceased remains weak. Furthermore, the keys that allegedly opened the padlock were never tested for fingerprints or DNA. PW5 testified that, they opened the padlock with the keys, but there was no forensic evidence to show that the appellant had ever handled the padlock, beyond the DNA evidence we have already found to be unreliable. The broken chain of custody and the failure to produce key exhibits have so weakened the prosecution's case that it cannot be said that, malice aforethought was proved beyond reasonable doubt. The totality of the evidence, when subjected to the scrutiny required of this Court, falls far short of the standard of proof beyond reasonable doubt. The prosecution case was riddled with gaps: the chain of custody was broken; the seizure certificates were defective; material exhibits were 14 not produced; and no motive or strong connection between the appellant and the deceased was established. Consequently, we find that, the appeal has merit. The conviction is unsafe and cannot be sustained. Thus, the conviction is quashed, sentence is set aside. The appellant is acquitted and shall be released forthwith unless held for other lawful cause. 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 Mr. Augustine Ijani, learned counsel for the 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 15