Tluway Shauri vs Republic (Criminal Appeal No. 855 of 2023) [2026] TZCA 224 (3 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: MWANDAMBO. J.A.. MWAMPASHI. J.A. And MLACHA. J J U CRIMINAL APPEAL NO. 855 OF 2023 TLUWAY SHAURI....................................................................APPELLANT VERSUS THE REPUBLIC .................................................................. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania, Manyara Sub-Registry at Babati) (Barthv, J.) dated the 2n d May and 25 August, 2023 in Criminal Sessions Case No. 98 of 2022 JUDGMENT OF THE COURT 10th February & 3rd March, 2026 MWANDAMBO, J.A.: The High Court (Barthy, J.) sitting at Arusha convicted the appellant Tluway Shauri of the murder of John Reginald @ Junior; a three months' child found dead in a water container at Seloto village, Babati District, Manyara Region. Upon such conviction, the appellant was sentenced to suffer death by hanging. He now resents the conviction and sentence in this appeal. According to the prosecution, the fateful incident happened on 9 March 2021 on which, the deceased was found floating in a big water container at a patio of a house owned by Michael Shauri not far from the deceased's residence as well as the house occupied by the appellant. The deceased's body was subsequently taken to Dareda hospital at which Doctor Astery Alexander (PW6) conducted a post-mortem observing a lot of water intake which resulted in the failure of lungs causing respiratory failure and pulmonary Oedema as the cause of death. Two days earlier, the appellant and the deceased's mother (PW5) involved in an altercation which saw the appellant allegedly telling PW5 that he will do something to her that she will never forget. Believing that it was no other than the appellant who was behind the deceased's death, he was arrested and later on taken to court charged with the deceased's murder to which he pleaded not guilty. To prove the case, the prosecution called six witnesses including PW6 who conducted the autopsy and tendered the post-mortem report admitted in evidence as exhibit P2. It is pertinent that, none of the witnesses saw the appellant doing the heinous act and thus the host of the evidence was largely circumstantial and the appellant's cautioned statement tendered by G.4205 Assistant Inspector Mwita Elias (PW2) admitted in evidence as exhibit PI in which the appellant is recorded to have confessed drowning the deceased in the water. The other evidence came from Veronica Dominic (PW3) who told the trial court that she knew the appellant as their neighbour and that she met him near the house 2 occupied by the deceased's mother. Later on, when news broke about the floating body at Michael Shauri's house, she was one of the persons who went to the scene of crime along with her mother and other people who had gathered there who saw the deceased's body floating in the water container. On her part, Luiza Elibariki (PW5) the deceased's mother stated further that, on the material date, she went to a river nearby leaving behind the deceased in a bedroom and had a door shut but without a lock. That as she was still at the river washing clothes, two women emerged talking about a body found floating in a water container whereupon she left to the house of Michael Safari where she found her baby floating in a water container. It was also her evidence that the appellant was her neighbour with whom they had engaged in an altercation two days before the awful incident at which, the appellant is said to have told PW5 of doing something to her that she will never forget in her life. The other evidence came from Yasini Hussein (PW1); a local militiaman who was among the people who gathered at the scene of crime on 9 March 2021. The following day, on 10 March 2021, he arrested the appellant at his house and handed him to the ward police out post at Dareda for further steps In his defence, while admitting existence of an encounter with PW5 on 7 March 2021, he denied any wrong doing involving the deceased as 3 he was away the whole day having left home at 07.00 a.m. for some work given by his boss and did not return until 19.00 hours. Regarding the cautioned statement, the appellant disowned it claiming that he never admitted to have committed the offence during interrogation at the police. To prove the alibi, the appellant called Lumumba John Ara @ Minja (DW4) at whose house he allegedly worked on 9 March 2021. He too called Stanslaus @ Shauri Mataya Amara (DW3). Nonetheless, at the conclusion of the trial, the High Court found it proved through the appellant's cautioned statement that the case against the appellant was proved beyond reasonable doubt. Considering that the appellant retracted his cautioned statement, relying on Tuwamoi v. Uganda [1964] E.A. 84 and the Court's decision in Mabala Masasi Mongwe v. Republic, Criminal Appeal No. 161 of 2010 (unreported), the trial court was satisfied that in view of the details in it, the appellant's confession through exhibit PI was nothing but the truth sufficient to ground conviction. In any case, the trial court was satisfied that PW3 who allegedly saw the appellant close to PW5's house before it was discovered that the deceased was found dead near their house was corroborative of the retracted confession. Besides, PW5's evidence on the existence of a quarrel two days prior to the drowning of the deceased in a water container did equally corroborate the impugned confession. In the end, the appellant 4 was found guilty as charged, convicted and sentenced as alluded to above. The appellant lodged a memorandum of appeal on 9 February 2026 comprising six grounds of complaint. That was after Mr. Kapimpiti Mgalula, learned advocate assigned to represent the appellant had lodged a supplementary memorandum of appeal on 6 February 2026 unaware that the memorandum of appeal had already been lodged. All the same, at the hearing of the appeal Mr. Mgalula abandoned the 3r d ground in the supplementary memorandum as well as the 3rd , 4th , 5th and the 6th grounds in the appellant's memorandum. After abandoning some of the grounds, the appellant's appeal proceeded upon the following grounds of complaint: 1. Error in relying on exhibit PI taken beyond the prescribed period contrary to section 50 and 51 of the Criminal Procedure Act (the CPA). 2. Grounding conviction on weak evidence which did not prove the case beyond reasonable doubt. 3. Error in acting on irrelevant facts in convicting the appellant. 4. Erroneous reliance on a retracted confession. Addressing the Court on the 1s t ground of complaint, Mr. Mgalula contended that, whereas the appellant was arrested by PW1 on 10 March 2021 and handed to the police at 08:55 a.m., it is not clear that he was interviewed between 09:30 and 10:58 a.m. because there is no such indication in exhibit PI contrary to the dictates of section 51 of the CPA. Counsel was adamant that, that was a fatal irregularity affecting exhibit PI and the resultant conviction based on it. Replying, Ms. Saada Mohamed, learned Senior State Attorney representing the respondent Republic invited us to dismiss this ground for being misconceived. She argued that contrary to the argument by the appellant's learned advocate, exhibit PI shows expressly that the appellant was interviewed between 09:50 to 10:58 a.m. and thus the complaint on non-compliance with section 51 of the CPA is flawed. With tremendous respect, we do not find any merit in the complaint in view of clear indication at page 66 to 69 of the record of appeal that the interview took place from 9.50 to 10:58 a. m well within four hours of the basic period available for interviewing a suspect prescribed under section 51 (formerly section 50) of the CPA R.E. 2023. In the upshot, this ground stands dismissed. Next on the complaint faulting the trial court for relying on a retracted confession in finding the appellant guilty. Mr. Mgalula attacked the cautioned statement on two fronts. The first relates to the variance in the names of the witness who recorded the statement; G. 4205 DC 6 Joseph and Assistant Inspector Mwita Elias formerly known as G 4205 (PW2) who tendered exhibit PI. Counsel argued that, no witness by the name Assistant Inspector Mwita Elias features in the list of witnesses during inquiry proceedings before the subordinate court giving rise to the order committing the appellant for trial to the High Court. It was argued thus that, in the absence of any valid explanation that G. 4205 DC Joseph is the same person as G. 4205 Assistant Inspector Mwita Elias, the tendering of exhibit PI by PW1 was irregular affecting the admission and reliance on exhibit PI in convicting the appellant. It was argued in the 2n d limb that, although exhibit PI was admitted without objection, since the appellant retracted it in his defence, in the absence of any evidence corroborating it, it was wrong for the trial court to have acted on it in grounding conviction. Replying, Ms. Mohamed argued that the complaint on the variance in the names of the person who recorded the cautioned statement and the witness who tendered it was an afterthought considering that it was not raised at the admission stage during the trial. Regarding its voluntariness, once again, counsel argued that the complainant has been made belatedly considering that the appellant's objection to admission of the cautioned statement related to the manner of its recording that is, whether it was under section 57 or 58 of the CPA which was overruled by 7 the trial court and hence its admission in evidence as exhibit PI. Relying on the Court's decision in Nyerere Nyague v. Republic [2012] TZCA 03, counsel argued that, objection relating to voluntariness of a confession must be taken at the admission stage during the trial and not on appeal as it were and so, the complaint should be dismissed. She also referred to Robinson Mwanjisi v. Republic [2003] T.L.R. 2018 for the proposition that, non-objection to admissibility of exhibits is tantamount to admission of their contents and so the appellant cannot be heard to challenge them on appeal, It is common cause that during the trial, the appellant's erstwhile advocate objected to admission of exhibit PI on only one ground that is, whether it was recorded under section 57 or 58 of the CPA which was overruled by the trial court. As the Court stated in Nyerere Nyague (supra), objection to the admission of a confessional statement be it under the Evidence Act or the CPA must be taken at the stage of admission during the trial regard being to the principle that, admission of the confessional statement is one thing and the weight to be attached thereto is a different thing altogether. Similarly, the Court stressed in that case that the decision whether to admit evidence or not where an objection is made premised on contravention of any provision of the CPA is entirely in the court's discretion. It was further observed that, challenging a confession based on contravention of the CPA at a later stage in particular in an appeal as it were, deprives the court and the prosecution the opportunity to consider whatever objection the appellant may have at that stage. The appellant's challenge against reliance upon exhibit PI on the ground that it was tendered by a person who was not listed during committal proceedings falls under the category of objections premised on the contravention of the CPA. No objection was taken at the admission stage and it is our view that it cannot be taken here on appeal. Had it been taken at that stage; it could have given the prosecution the opportunity to explain the variance between G.4205 DC Joseph and G.4205 Assistant Inspector Mwita Elias. Raising it at the appellate stage as it were is nothing but an afterthought as argued by Ms. Mohamed. Had it been considered to be a serious objection, there is no explanation why it was not raised at the appropriate stage. Doing the way, the appellant's advocate has done is tantamount to changing goal posts depending on prevailing circumstances which was frowned upon by the Court in East African Development Bank v. Blue Line Enterprises Ltd [2013] TZCA 2405 citing an English decision in Haystead v. Commissioner of Taxation [1920] A.C 155. The practice borders on beginning fresh litigation or argument on account of discovery of new views until legal ingenuity is exhausted which must be discouraged. 9 It will be recalled that, during his evidence, PW2 introduced himself as G 4205 Assistant Inspector Mwita Elias formerly known as G 4205 DC Joseph who recorded the appellant's cautioned statement on 10 March 2021. That evidence was not challenged in cross examination by counsel who represented the appellant during the trial. Since, as we have stated earlier, that aspect was not challenged at the appropriate stage, raising it in this appeal, is, but an afterthought. We accordingly dismiss it. On the other hand, the complaint on the reliance on the retracted confession should not detain us primarily because the trial court was alive to the long established practice in acting on retracted confessions set out in Tuwamoi v. Uganda [1964] EA 84 referred in various decisions including, Elinema Kibo v. Republic [2013] TZCA 2148 and Ndalahwa Shilanga & Another v. Republic [2011] TZCA 159, to mention just a few of them to the effect that, the court may base conviction on a retracted or repudiated confession without corroboration if it is fully satisfied that is true and was made voluntarily. The trial court was satisfied that the confession was too detailed to be nothing but the truth. However, it did not end there. It found the confession corroborated by PW3 who saw the appellant proceeding towards PW5's house and subsequently, the deceased's body was found in a water container in a neighbouring house. Besides, the trial court found PW5's evidence corroborated the confession based on the utterance the appellant made to her two days earlier that 10 he would do something to her that she will not forget in her lifetime. PW5 was not controverted on that piece of evidence. The trial court took the view that the appellant took advantage of the PW5's absence from her house and snatched her child and drowned it in a water container in a nearby house. With respect, having examined the contents of exhibit PI, and upon our own evaluation of the evidence in particular, from PW3 and PW5, like the learned trial judge, we are satisfied that, not only was the confession true but also sufficiently corroborated by PW3's and PW5's testimonies. In the circumstances, the criticism by the appellant's counsel that the trial court wrongly acted on the repudiated/retracted confession is misconceived. In the upshot, the 4th ground lacks merit and is accordingly dismissed. Finally on the second ground faulting the trial court for convicting the appellant on weak evidence which did not prove the case beyond reasonable doubt argued conjointly with the third ground. Mr. Mgalula's arguments on this ground was largely premised on the fact that there was no direct evidence proving that it is the appellant and no one else who caused the deceased's death. In particular, he argued that PW3 did not tell PW5 that she saw the appellant entering her house or drowning the deceased into the water container. Besides, counsel contented that, 11 neither did the deceased die in PW5's house nor was Michael Safari at whose home the deceased was found dead was charged as a culprit. According to the learned advocate, the above dented the case for the prosecution which could have resulted in a finding of not guilty. For her part, Ms. Mohamed was resolute that the case was proved beyond reasonable doubt on the basis of the confessional statement as well as circumstantial evidence. She pointed out that, PW3's evidence was that she saw the appellant near PWS's house and subsequently the deceased was found drowned in a water container in a nearby house which linked him with the death. Counsel down played the argument on failure to call Michael Safari. According to her, he was not a material witness since he was not at home at the material time. Despite admitting albeit reluctantly that the case was not properly investigated, Ms. Mohamed maintained that, the case was proved to the required standard and invited the Court to sustain the appellant's conviction and dismiss the appeal. We need not be unduly detained on this ground having already held that the confession was, as found by the trial court true and made voluntarily and sufficiently corroborated by PW3 and PW5. Mr. Mgalula criticised the trial court for finding that PW3 told PW5 that she saw the appellant entering her house in evidence in chief. In 12 cross examination, PW3 stated that, she saw the appellant near the house occupied by Zeriobia; her play mate who was staying with PW5. However, to appreciate the essence, one it entails looking at PW3's evidence in its totality coupled with what transpired thereafter, that is, when she visited Zeriobia for playing, she found no body at home and looked for her play mate to the river where she found her together with her sister (PW5) but did not stay longer with them before returning home. On her way back, she saw the appellant, a person familiar to her and a neighbour walking near PW5's home where a three month's old child had been left alone sleeping in a bed room. PW3 stated: "I met him on the way but it wasjust there at the house o f Zeriobia. Then I saw him going to the house o fZeriobia, but I proceeded to go home"fax. p. 16 of the record]. That piece of evidence was not challenged in cross examination. What PW3 stated while answering a question in cross-examination was that she did not tell PW5 that she saw the appellant entering her house or having seen the appellant taking away her child. In our view, minus the discrepancy in what PW3 said in her evidence in chief and in cross examination, her evidence was properly acted upon to corroborate the confession which, as we have alluded to above, did not require any corroboration. Regarding Michael Safari, we agree with Ms. Mohamed that 13 as he was not at home when the incident occurred, he had no role to play in the case either as a culprit as urged by Mr. Mgalula or as a witness. Consequently, we find no merit in this ground and dismiss it. In the event the appeal lacks merit and we dismiss it. DATED at ARUSHA this 2n d day of March, 2026. L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 3r dday of March, 2026 in the presence of Mr. Brian Steven Kimbele, learned counsel holding brief for Mr. Kapimpiti Mgalula, learned Counsel for the Appellant, Ms. Neema Mbwana, learned Senior State Attorney for the Respondent/Republic and Ms. Anna Utou, Court clerk, is hereby certified as a true copy of the original. L. J. S. MWANDAMBO JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL R. W. CHAUNGU n jj DEPUTY REGISTRAR COURT OF APPEAL • y -— 14