Hosea Johan Mwaiswelo vs Republic (Criminal Appeal No. 764 of 2023; Criminal Sessions Case No. 29 of 2014) [2026] TZCA 187 (2 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA fCORAM; KEREFU, J.A.. KAIRO. J.A. And NANGELA. J.A.) CRIMINAL APPEAL NO. 764 OF 2023 HOSEA JOHAN M W AISW ELO .............................................. ...........APPELLANT VERSUS THE REPUBLIC.................................................................................RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mbeya) (Nqunvale, J.) Dated the 06th day o f July, 2023 in Criminal Sessions* Case No. 29 of 2014 JUDGMENT OF THE COURT 09th February & 2 * March, 2026 NANGELA J.A. This appeal has a chequered history. HOSEA JOHAN MWAISWELO, the appellant, together with Chesco Mwakasungula (2"° accused), Tulinagwe Kamwankenja (3rd accused) and Barton Mwankenja (4* accused) (the three being not part of this appeal), were jointly and together, arraigned before the High Court of Tanzania, at Mbeya, accused of murder contrary to sections 196 and 197 of the Penal Code, Cap. 16 of the Revised Edition of the Laws (the Penal Code). It was alleged that, on 19/01/2014, at 21:00 hours, at Syukula Village within Rungwe District in Mbeya Region, the quartette murdered one DIANA KIHABA {the deceased). On 25/04/2014, the Director of Public Prosecutions (the DPP) entered a nolle prosequi in respect of the 2nd, 3rd and 4th accused persons. The appellant was left to stand trial and, subsequently, upon the filing of an information for murder before the High Court, he was committed for trial. During the initial trial, the appellant denied the charge levelled against him. His plea of not guilty, necessitated a full trial, during which the prosecution called six (6) witnesses. However, at the time, no exhibits were tendered, and, upon being found to have a case to answer, the appellant was placed on his defence. He denied being one of the alleged robbers who killed the deceased on the material date. He also denied having recorded a cautioned statement admitting the offence. At the dose of the trial, and upon evaluating the evidence adduced by both sides, the trial court (Ngwala, J., as she then was), concurring with the opinion of the assessors, found the appellant guilty. The court, subsequentiy, convicted and sentenced him to death by hanging. 2 $ Aggrieved by the conviction and sentence, the appellant lodged Criminal Appeal No. 524 of 2019 before the Court. That appeal was heard on 30/11/2022. In a judgment delivered on 07/12/2022, the Court nullified the entire proceedings and judgment of the High Court dated 26/07/2019 and ordered a trial de novo. The present appeal arises from the proceedings stemming from that order. Pursuant to the order for retrial, the prosecution commenced fresh proceedings before the High Court (trial court) (Ngunyale, J.) on 04/07/2023. The trial court exercised its discretion to proceed without the aid of assessors, as the law had by then made their participation optional. When the information was read over and explained to the appellant, he pleaded not guilty, thereby necessitating a full trial. The prosecution called five (5) witnesses: Aines Erasto Mwangoka (PW1); Esta Fred Mwakilasya (PW2); Joshua Mwakalonge (PW3); James Mwakipesile (PW4); and D4534 STN/SGT Mgihu (PW5) and tendered two documentary evidence, namely, the appellant's cautioned statement (exhibit PI) and the sketch map of the scene of crime (exhibit P2). PW l and PW2 testified that, on 19/01/2014, at about 20:00 hours, while they were having dinner at home with their grandmother, the 3 deceased, a man armed with a machete (panga) and an iron bar invaded their house and attacked the deceased and PW2. v Both witnesses stated that, they recognised the assailant as the appellant, a person well known to them prior to tiie incident. They described him as wearing a black coat, a cap (kofia), a black T-shirt, and black trousers, with his face initially covered by a piece of cloth. They testified that, the room was illuminated by a tube light which, according to PW l, provided sufficient light to enable them to see dearly. They further stated that during the struggle with the deceased, the cloth covering the assailant's face fell off, thereby exposing his face. At that time, he was in close proximity to them, having physically attacked PW2. Additionally, that, the appellant even spoke to PW l, demanding that she show him where the deceased kept her money. On the basis of the lighting conditions, their prior familiarity with him, the dose range of interaction, and the verbal exchange, both witnesses maintained that, they recognised him as the appellant. Besides, PW l testified further that, after the assailant fled the scene, PW3, a neighbour, came to their aid. PW3 confirmed that fact, adding that, upon arrival, he found the deceased lying on the floor bleeding from the head. It was his testimony that, upon inquiring from 4 PW1 as to what had occurred, she named the appellant as the assailant. PW3 arranged for the deceased to be taken to hospital and participated in the appellant's arrest. According to PW3, upon arrest, the appellant was questioned and assaulted by members of the public, during which he allegedly confessed that he had been sent to kill the deceased upon a promise of payment of TZS 3 million. PW4, who was the Village Chairperson at the material time, also went to the scene and supported PW3's account regarding the appellant's arrest. Police officers, including PW5, subsequently arrived at the scene, and the appellant was handed over to them. He was taken, together with the victims, to Tukuyu Police Station. At the Police Station, PW5 was assigned to investigate the case. He issued PF3s to the victims, recorded a cautioned statement from the appellant (later admitted in court as evidence and marked exhibit PI), and prepared a sketch map of the scene (admitted in court as evidence and marked exhibit P2). Upon evaluating the prosecution evidence and the exhibits tendered and admitted in evidence, the trial court found that, a prima facie case had been established, thus, requiring the appellant to enter his defence. 5 t In his defence, the appellant testified on oath and called no other witnesses. He denied the charge. He stated that, he was born in 1999, as informed by his mother. He testified that, in 2013 and 2014 he resided In Kyela and later moved to Katumba with his mother, and that, his father had died in 2013, and his mother passed away in 2019. He further stated that, in January 2014, there was a dispute concerning farms allegedly owned by his mother involving one Juma. He testified further that, on 19/01/2014, at around midnight, his mother woke him and informed him that there were people outside asking for him. Upon going outside, he was told that bandits had invaded the house of the deceased and was asked whether he was involved. He denied the allegation. He stated that, he was taken to the scene of the crime, beaten by members of the public, and accused of participating in the incident despite his denial. He further asserted that, after the police arrived, he was taken to Tukuyu Police Station, assaulted, and placed in remand custody. On the following morning, he was allegedly forced, after beatings, to affix his thumbprint to documents whose contents were not explained to him. He denied having made any incriminating statement to the police. He also denied having lived in Syukula Village, knowing the deceased, being acquainted with PW1 or PW2, or participating in the offence. At the conclusion of the trial, upon evaluation of the entire evidence, the learned trial Judge was satisfied that, the prosecution had proved its case beyond reasonable doubt. The appellant was, accordingly, convicted as charged and sentenced to death by hanging. i Aggrieved by his conviction and sentence, the appellant has preferred the present appeal challenging both. The record of appeal shows that he filed two memoranda of appeal. The first, filed on 16/10/2023, contained five grounds of appeal. Subsequently, on 4/02/2026, Ms. Tumaini Amenye, the advocate assigned to represent the appellant, filed a supplementary memorandum, raising four additional grounds. In total, therefore, the appellant advanced nine grounds of appeal. Upon careful consideration, the grounds may conveniently be condensed into the following five broad complaints: 1. That, the appellant's identification by PW1 and PW 2 was unreliable, having occurred a t night and in circum stances o f stress. 2. That, the tria l court erred in law by failin g properly to evaluate the evidence and the defence, and by im posing an unlaw ful or inappropriate sentence, particularly in view o f the appellant's age. 7 3. That, the death o f the deceased was not proved in accordance with sections 10 (1), 11 (1) and 12 (1) o f the Inquest Act, Cap. 24 o f the Revised Laws o f Tanzania. 4. That, the cautioned statem ent relied upon by the tria i court was unlaw fully obtained, the appellant having allegedly been subjected to torture. 5. That, the tria l court erred in relying on the testim ony ofPW 2 and PW3, who were allegedly n ot properly com m itted to the High Court by the subordinate court as required by law. When the appeal was called on for hearing, Ms. Tumaini Amenye, learned counsel, appeared for the appellant, who was also present in Court. The respondent Republic was represented by Messrs. Yussuf Aboud, learned Senior State Attorney, and Lordgud Eliamani, learned State Attorney. This is a first appeal. It is trite law that, a first appellate court is entitled, and, indeed duty-bound, save in exceptional circumstances, to re-evaluate the entire evidence and arrive at its own independent conclusions. In this regard, we are guided by the decision of the Court in Musa Kehanga @ Chacha v. Republic [2025] TZCA 266 (24 March 2025) (TANZLII). In that case, the Court, relying on its earlier decision in Deemay Daat, Hawa Burbai & Nada Daati v. The Republic [2004] TZCA 80 (5 October 2004) (TANZLII), stated that: 8 "In essence, the only lim itations to the freedom enjoyed by the firs t appellate court are those stated t'o the cases o f D.R. Pandya vs. R. [1957] EA 336 and Jam al A. Tamim vs. Felix Francis M kosam ali & Another, 2012 [ TZCA] 110 (3 May 2013) (TANZU1). Those lim itations are in relation to the issues o f dem eanour evidence o f any o f the w itnesses who appeared before the tria l court, the reason being that the appellate court lacks the first-hand opportunity to encounter the w itnesses in re a l tim e". We shall be guided by the foregoing principle in determining the grounds of appeal before us. Turning to the submissions on the first ground, Ms. Amenye contended that, the appellant's identification was not watertight. Without detailed elaboration, she maintained that, the prevailing circumstances rendered the identification by PW1 and PW2 unreliable. Mr. Eliamani, on the other hand, argued that the appellant was properly identified by both witnesses. In our view, the question of identification presents no difficulty. The evidence of PW1 and PW2 constitutes watertight recognition evidence for several reasons. 9 t First, as to lighting conditions: both witnesses testified that the scene was illuminated by a tube light, which provided sufficient visibility for clear observation. Second, as to familiarity: PW1 and PW2 knew the assailant prior to the incident. This was, therefore, a. case of recognition rather than identification of a stranger. Third, PW1 testified that, during the struggle with the deceased, the doth the assailant had used to conceal his face fell off, thereby exposing him fully to the witnesses. Fourth, proximity: according to PW1 and PW2, the assailant not only attacked the deceased but also assaulted PW2 and spoke directly to PW1, demanding to know where the deceased kept her money. These close interactions afforded the witnesses ample opportunity for observation. Finally, PW1 promptly named the appellant to PW3, an immediate neighbour who responded to the scene. On an objective assessment of the totality of the evidence, we are satisfied that the appellant was positively recognized at the scene by PW1 and PW2. The first ground of appeal is, therefore, devoid of merit and is accordingly dismissed. We shall revert to the second ground of appeal in due course. For now, we tum to the third ground, in which the appellant contends that, the death of the deceased was not proved. Concerning that complaint, 10 Ms. Amenye submitted that, as no post-mortem report was tendered in evidence, the cause of death was not established. She argued that, the failure to produce such evidence left causation unproven and the case short of the requisite standard of proof. • Mr. Eliamani strongly opposed that contention. He submitted that, the prosecution proved not only that the deceased died, but that, her death was unlawful and caused by the appellant with malice aforethought. Relying on the testimonies of PW l and PW2, eyewitnesses who saw the appellant cut the deceased on the head, he argued that, since there was no evidence of any pre-existing ailment that could have caused her death, then her death was associated with the attack and it was unnatural. He further submitted that, proof of death does not invariably depend on the production of a post-mortem report, particularly where there is credible direct evidence. In this regard, he referred to the testimonies of PW l, PW2 and PW3, who also participated in the burial of the deceased. To fortify his submissions, he relied on the decision of the Court in Kurw a M oham ed M w akabala & A n oth er v. R ep u b lic [2020] TZCA 233 (8 May 2020) (TANZLII). In that case, the Court cited with approval its earlier decision in Elias M tati @ Ib ich i v. R ep u b lic [2014] TZCA 2152 (14 August 2014) (TANZUI), where it stated as follows; li "We need not detain ourselves on the issue respecting p ro o f o f the fact o f death, much as we think there are sufficientpointers on the evidence to establish beyond doubt that Roda M iham bi @ Pim a is, indeed, dead. More particularly, PW1 testified that after the attack on her, the deceased fe ll to the ground and d id not rise. The w itness knew the deceased quite w ell as a fellow villager and in her testim ony, she categorically stated that Roda is presently dead. The other w itness is WP 3625 detective corporal Mary (PW 3), the investigation officer. In her account, she found Roda lying dead on a table a t Bwawani dispensary where she was taken after the attack. From the evidence o f the two witnesses, it is beyond question that Roda is, indeed, dead". We endorse the foregoing view as equally applicable to the present appeal. As correctly submitted by Mr. Eliamani, proof of death does not invariably depend on the production of a post-mortem report. Even in its absence, the cause of death may be established by other cogent evidence, as this Court observed in E lias M tati @ Ib ich i v. R epublic (supra). In addition, in G hati M w ita v. R epublic [2013] TZCA 2260 (12 March 2013) (TANZLII), the Court reiterated the same principle, stating that: 12 "... the fact o f death m ay be proved by circum stantial evidence, that, evidence m ust be such as to com pel the inference o f death and m ust be such as to be inconsistent with any theory o f the alleged deceased being alive, with the result that taken as a whole, the evidence leaves no doubt whatsoever that the person in question is dead. (See Kim w eri v R [1968] EA 452). In our view, the same principle applies with respect to p ro o f o f cause o f death and the causer o f the death'. In the present appeal, PW1, PW2 and PW3 testified satisfactorily that the deceased died and, that, her death was unnatural, having been caused by the appellant, who attacked her with a machete and an iron bar. Consequently, we find no merit in the third ground of appeal and accordingly dismiss it. We now turn to the fifth ground of appeal. The substance of this ground is the complaint that, PW2 and PW3, were not among the witnesses committed by the committal court to the High Court and, therefore, should not have been allowed to testify. In her submissions, Ms. Amenye maintained that, these witnesses' testimonies ought to have been disregarded by the trial court. She therefore urged us to disregard them. For his part, Mr. Eliamani contended that, even if the testimonies of PW2 and PW3 were excluded, the evidence of PW1 remains cogent and sufficient to sustain the conviction. Even so, he maintained that, as reflected at pages 5 and 6 of the record of appeal, th^ names of PW2 and PW3 appear in the committal records, while that of PW4 appears at page 10. He thus urged the Court to dismiss the fifth ground of appeal for want of merit. We have carefully examined the record of appeal. As correctly submitted by Mr. Eliamani, pages 4, 5, 6 and 10 of the record of appeal, clearly show that PW2, PW3 and PW4 are the same persons whose statements were committed to the High Court. We are fortified in this conclusion by the fact that none of these witnesses was cross-examined on the alleged discrepancy regarding their names. The appellant had the opportunity to seek clarification during cross-examination but failed to do so. In the circumstances, we find no merit in the fifth ground of appeal and accordingly dismiss it. Finally, we revert to the second ground of appeal, which we earlier reserved for determination at this stage. This ground raises a twofold complaint: first, that, the trial court failed to properly evaluate the evidence; and second, that, it failed to consider the appellant's defence. In advancing this ground, Ms. Amenye submitted that, the trial court did not discharge its duty of evaluating the evidence, including the appellant's defence, which appears at pages 38 to 49 of the record of appeal. She argued that, had the court carefully analysed the evidence and the defence, it would have observed that the appellant asserted he was born in 1999 and was, therefore, only 15 years old at the time of the commission of the offence in 2014, notwithstanding that the charge sheet indicated his age as 18 years. Referring us to pages 39 and 46 of the record of appeal, she maintained that, the appellant consistently stated his year of birth as 1999. She contended further, that, the trial judge failed to consider this aspect of the defence during sentencing and, thereby, acted in breach of section 26 of the Penal Code and sections 114 and 115 of the Law of the Child Act, Cap. 13 of the Revised Laws of Tanzania. In support of her submissions, she relied on the decision of the Court in A thanas M b ilin yi v. R epublic [2022] TZCA 663 (1 November 2022) (TANZLII), urging that, should this Court uphold the conviction, it ought nonetheless to reconsider the sentence imposed. In response, Mr. Eliamani reiterated the respondents opposition to the appeal. Regarding this ground, he argued that the appellant's age was is not a contested issue during the prosecution's case and only arose in the course of the defence. He further submitted that the decision in Athanas M b ilin yi v. R epublic (supra) is distinguishable. However, he conceded that should the Court find that an injustice occurred in sentencing, it would be appropriate to rectify the sentence, given that the prosecution case was otherwise proved. We have carefully considered the rival submissions. At the outset, two principles warrant emphasis. First, the evaluation of evidence, including that adduced by the defence, is a fundamental duty of the trial court. Second, where that duty is not properly discharged, the responsibility falls upon the first appellate court to re-evaluate the evidence and reach its own conclusions. These principles have been consistently affirmed in numerous decisions of this Court. See, for instance, Kaim u Said v. R epublic [2021] TZCA 273 (7 June 2021: TANZLII); Registered Trustees o f Jo y in The H arvest v. Ham za K. Sungura [2021] TZCA 139 (28 April 2021: TANZLII) and DPP v. Josephat Joseph M ushi & A nother [2023] TZCA 17536 (24 August 2023: TANZLII). In that latter decision, for instance, relying on its previous decision in A llen Francis v. Republic, [2022] TZCA 689 (26 October 2022: TANZLII) the Court, was quite emphatic that: 16 "it is the duty o f the tria l court to subject the entire evidence on record to scrutiny, which entails considering the defence evidence before m aking any finding o f guilty. Where the tria l court fa ils to do so, the first appellate court is enjoined to do so in its role to re-evaluate the whole evidence on record with a view to m aking its own findings o f fact either concurring with the tria l court o r otherw ise where both courts below fa il to do so, the Court has pow er to step into the shoes o f the firs t appellate court and do what that court om itted to do". Turning to the second ground of appeal, we are of the view that Ms. Amenye raises a point warranting consideration. It is evident, from pages 39 and 46 of the record of appeal, that, the appellant informed the trial court that he was bom in 1999 and, as of 2014, had not yet attained the age of 18 years. Although, we agree with Mr. Eliamani that, this fact emerged during the defence and in the course of a trial within a trial, we are firmly of the view that, it was a material issue that ought to have been conclusively determined by the trial court, as it bore directJy on the appellant's sentencing. As rightly submitted by Ms. Amenye, sections 114 and 115 of the Law of the Child Act ought to have been considered. In the absence of 17 such consideration, and pursuant to section 115 (2) of the Act, the position remains that the appellant was a minor — aged 15 years — at the time of the commission of the offence. It is trite law that the death penalty cannot be imposed on a person who was under the age of 18 years at the time when the offence was committed. Section 26 (2) of the Penal Code is clear about that. It provides as follows: T h e sentence o f death sh all not be pronounced on o r recorded against any person who a t the tim e o f the com m ission o f the offence was under eighteen year so f age, but in lieu o f the sentence o f death; the court sh a ll sentence that person to be detained during the President's pleasure, and, if so sentenced, he sh all be liable to be detained in such place and under such conditions a s the M inister fo r the tim e being responsible fo r leg al affairs m ay direct, and w hilst so detained sh a ll be deem ed to be in leg al custody The Court had the opportunity of interpreting the above cited provision in Sospeter Nyanza 8t Another v. Republic [2022] TZCA 281 (13 May 2022: TANZUI) where it held that: "Our construction o f the above cited provision does n ot reveal to us that the appellants were 18 required to be sent to prison. W hat we discern from it is that, one, it prohibits a death punishm ent against a person who com m itted the offence while under the age o f eighteen years. Two, it provides fo r the person who is detained during the President's pleasure to be taken to a certain place; and three, there are conditions to be issued by the M inister fo r leg al affairs. And, to show that such place is not the norm al prison, the la st p art o f the provision puts it dear o f the presum ption o f a person so detained to be treated as being in legal cu sto d /. See also: R en ick M ligo v. R epublic [2025] TZCA 1026 (6 October 2025: TANZUI), Daim on s /o M alekela @ M aunganya v. Republic [2010] TZCA 178 (8 November 2010: TANZUI); M asho M talikidonga & 3 O thers v. R epublic [1980] TZCA 14 (22 May 1980: TANZUI) and Nyanza Paul v. R epublic [1991] TZCA 61 (14 June 1991: TANZUI). In the instant appeal, the appellant was sentenced to suffer death by hanging. We are of a settled view that, owing to his age at the time of the commission of the offence, it was unlawful for the trial High Court to pronounce and/or record a death sentence against him. We, accordingly, allow the second ground of appeal. We quash and set aside the death sentence. 19 In lieu, under section 26 (2) of the Penal Code, the appellant is sentenced to be detained during the President’s pleasure. As the Court stated in Nyanza Paul v. Republic (supra), "he is him self to blam e for stunting the efflorescence o f h is youth." The appeal succeeds to this extent only. DATED at M BEYA this 2ndday of March, 2026. R. J. KEREFU JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL D. J. NANGELA JUSTICE OF APPEAL Judgement delivered this 2nd day of March, 2026 in the presence presence of the Appellant in person, Mr. Augustino Magessa, learned State Attorney, for the respondent/Republic, via virtual court and Mr. Soud Omary, Court Clerk; is hereby certified as true copy of the original. 20