Juma Said & Others vs Republic (Criminal Appeal No. 503 of 2024) [2026] TZCA 185 (2 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: LEVIRA, 3.A., MPEMU, J.A. And ISSA. J. A.^ CRIMINAL APPEAL NO. 503 OF 2024 JUMA SAID ....................... EMMANUEL JOHN ............. AMAN SANIEL @ MKWIZU .l^APPELLANT .2N D APPELLANT 3R D APPELLANT VERSUS THE REPUBLIC RESPONDENT (Appeal from the Judgment of the High Court of Tanzania, at Magu) JUDGMENT OF THE COURT 10th February & 2n d March, 2026 MPEMU. J.A.: Juma Said, Emmanuel John and Aman Saniel @ Mkwizu were arraigned, jointly and together, in the High Court of Tanzania, sitting at Magu for the murder of David Albert who was a Salesman of Chemi and Cortex Industries Limited. According to the particulars of the offence, the incident occurred on 6th August, 2017 at Isamilo in Misungwi District. Briefly, during the night of the incident day, the appellants, being sungusungu militiamen, were on their usual patrol as security guards at Bukumbi area. While there, appeared a man, who happened to be the deceased, walking on foot heading towards Usagara direction. According (Itemba, J.) Dated the 4th day of May, 2023 in Criminal Sessions Case No. 142 of 2020 to PW2 Jumanne Rugwisha, the deceased left Mwanza for Geita on official duty as of 2n d August, 2017 and was expected to be back to Mwanza on 6th August, 2017. It is in the testimony of PW4 one Nuru Hussein Ally that, the deceased passed by them before he was stopped by the appellants after failing to see one Kaliyaya Joseph at his shop. PW4 alleged to have identified both the deceased and the militiamen by the aid of bright electricity light. It is stated that, later in the morning, the deceased was found dead in the paddy farms. The incident was thus reported to the police station. Police operations commenced, leading to the arrest of the appellants. As testified by PW1 SSP Elisha Kusula, the appellants confessed in their cautioned and extrajudicial statements recorded by D.6580 Detective Sergent John (PW5) for cautioned statement (exhibit P3), while Fratern William Temba (PW8) recorded extrajudicial statement (exhibit P5) of the second appellant Emmanuel John. As to the third appellant Aman Saniel @ Mkwizu, E.6520 Sergent Barnabas Samson (PW6) recorded his cautioned statement (exhibit P4). With this evidence, the trial court found that the appellants were the last persons to be seen with the deceased while he was alive and that, they confessed to have taken part in the murder. According to their confessions, the appellants also robbed the deceased some amount of money which was distributed to them, two million shillings each. Accordingly, the trio were found guilty, and following conviction of murder entered thereat, the trial court sentenced them to suffer death by hanging. Dissatisfied, the appellants have filed the instant appeal premised on the following paraphrased grounds: 1. T h atth e trial court erred in iaw and fact in holding that the appellants were the last persons to be seen with the deceased while alive. 2. That ■ the trial court wrongly based conviction on uncorroborated confessions. 3. That, the prosecution case was not proved beyond reasonable doubt At the hearing of the appeal, Messrs Alex Luoga, Emmanuel Sayi and Innocent Michael, learned advocates represented the first, second and third appellants, respectively whereas the respondent Republic had the services of Messrs Nestory Mwenda, learned Senior State Attorney assisted by Ibrahim Idd Salim, learned State Attorney. Submitting on the ground that the appellants were the last persons to be seen with the deceased while alive, Mr. Luoga argued that, PW4 being the only eye witness, his evidence is incredible because he did not properly describe the intensity of electricity light which aided him to identify the appellants and the deceased being together. In their further argument, Mr. Michael added that, at least one Kaliyaya Joseph would have shade a light because it appears the appellants and the deceased were seen going to his premises. Unfortunately, he was not called in evidence, so do one Jephta, the chairperson of the area who, as argued by Mr. Michael, the second appellant led PW1 and Inspector Masota to Mlimani Bukumbi where they recovered a mobile phone, a bag with EFD machine, calculator, diary and other items forming the contents of the seizure certificate (exhibit PI). As to confessions, that is, the cautioned and extrajudicial statements Mr. Sayi submitted that, the cautioned statement of the second appellant (exhibit P3) was recorded out of time because it is not clear at what time the appellant was arrested. He added that, even the extrajudicial statement of the second appellant (exhibit P5) was not signed by the appellant. To Mr. Sayi, this raises doubts if really the second appellant made the alleged extrajudicial statement. Mr. Michael added in respect of the cautioned statement of the third appellant (exhibit P4) which the witness who tendered it did not indicate when he completed recording it. The three learned counsel concluded that, the case was not proved on account that: One, the infraction noted in the cautioned and extrajudicial statements which they unanimously urged us to expunge them from the record. Two, failure to call material witnesses in evidence, such as; Inspector Masota who alleged that the 2n d appellant led PW1 and Masota to Bukumbi Mlimani where the deceased bag was retrieved; Mr. Kaliyaya who was mentioned by PW1 and PW4; Chairman Jephta who ordered the arrest of the appellants and also witnessed search. Three, real evidence forming the contents of exhibit PI and P2 violated section 263 of the CPA because they were not explained to the appellants during committal proceedings. This was also the case to the evidence of PW9 who conducted postmortem examination. They thus urged us to draw adverse inference and allow the appeal. In reply, Mr. Mwenda resisted the appeal. He argued that, the evidence of PW4 on visual identification is credible because, through the aid of the bright electricity light, he was able to recognize the appellants whom were familiar to him. The evidence of PW4, according to Mr. Mwenda is corroborated by that of PW1 who testified that, the 2n d appellant led him and other police detectives to a place where the deceased's bag (exhibit P2) was retrieved. He thus argued that, with this evidence and the appellants confessions, there is no doubt that the appellants were the last persons to be with the deceased in his last life time. 5 As to confessions, Mr. Mwenda submitted that, exhibits P3 and P4 were recorded within time as testified by PW1 thus the trial court properly grounded conviction on them. As to complaint of the appellants that they were recorded out of time, Mr. Mwenda argued that, PW1 explained that, much of the time was spent in investigation because the 2n d appellant lead them to the mountains to recover the deceased properties. He thus cited to us in that respect, the case of Michael Mgowele & Another v. Republic (Criminal Appeal No. 205 of 205 of 2017) [2019] TZCA 341 (30 September 2019; TanzLII). Regarding exhibit P5, it was Mr. Mwenda's contention that, failure to sign the extrajudicial statement as was to the cautioned statement (exhibit P4) is unfounded because there is no legal requirement that the signature must be in a written signature or through a thumb print. His stance was that, the statement was voluntary and in terms of the law as stated in Peter Charles Makupila Askofu v. Republic (Criminal Appeal No. 21 of 2019) [2021] TZCA 197 (12 May 2021; TanzLII), the trial court properly founded conviction on such evidence. When probed regarding presence of two unsimilar conspicuous handwritings, Mr. Mwenda urged us, being the first appellate court, to reevaluate the said evidence. 6 Reverting to failure to call material witnesses as complained by the appellants, Mr. Mwenda stated that, in terms of section 152 of the Evidence Act, Cap. 6 and the principles stated in Thobias Bandi v. Republic (Criminal Appeal No. 453 of 2021) [2024] TZCA 1168 (25th November 2024; TanzLII), there is no particular number of witnesses required to prove a particular fact. In his argument, they were satisfied that the witnesses who testified proved the case and he believed that those whom the appellants insisted that they should have been called, would have testified what was already in the evidence. In a further reply, Mr. Mwenda conceded that PW9 was not listed at the committal proceedings, he thus urged us to expunge his evidence and the postmortem report he tendered. Nonetheless, he argued that, cause of death has been proved by PW2 who was the deceased's co worker and PW3, a relative who identified the deceased body and proceeded for burial. He cited the case of Herman Faida v. Republic (Criminal Appeal No. 479 of 2019) [2021] TZCA 405 (24 August 2021; TanzLII) arguing that, cause of death may be proved without medical evidence in the nature of postmortem report. In all, unlike the appellants' counsel, the learned Senior State Attorney concluded that, the evidence on record established that the 7 appellants were the last persons to be with the deceased before his last breath. He urged us to find the appeal to lack substance and dismiss it. It is now our turn to determine whether the appellants' conviction grounded on their retracted confessions and also the doctrine that they were the last persons to be seen with the deceased, was proved beyond reasonable doubt. Before we go that much far, we are mindful to resolve one quick point raised by the appellants' learned counsel that, since the evidence of PW9 was not read at the committal proceedings, then that evidence, together with the postmortem report be expunged from the record, which means, cause of death remain unproven. We partly agree with the learned counsel, particularly on noncompliance of provisions relating to committal proceedings. The law is that, a witness whose statement or substance of that witness's evidence was not read during the holding of committal proceedings, shall not be called in evidence save for where the requirement of adding that witness as an additional witness in terms of section 308 (1) of the CPA is met. If the latter procedural requirement is ignored by the prosecution machinery, then the irregularity becomes fatal leading to miscarriage of justice. See Alfan Apolinary Kyarubota & Others v. Republic (Criminal Appeal No. 164 of 2021) [2023] TZCA 8 17579 (31 August 2023; TanzLII). Accordingly, the evidence of PW9 was wrongly received and relied upon. We thus expunge it from the record. However, as submitted by Mr. Mwenda and also as we held in Herman Faida v. Republic (supra), proof of the cause of death may be established without evidence of postmortem report. In the matter before us, PW2 who was the deceased's co-worker and PW3, the deceased's young brother, identified the deceased body to have succumbed unnatural death and they, together with other mourners, laid him to rest at Tarime. Who murdered the deceased? This becomes crucial to us. The trial court came to a finding that the evidence was watertight to justify conviction meted out as revealed at page 246 through 247 of the record of appeal that: "In this case, I do not find any alternative explanation which can be the causation o f the deceased's death. B ased on th e ca u tio n e d state m e n t, th e e x tra ju d ic ia l sta te m e n t a n d th e c ircu m sta n tia l evidence , there is an unbroken chain o f events within the span o f less than 12 hours, from the moment when the deceased was arrested with the accused persons to the moment when the deceased was found dead in rice farm. The accused have confessed in 9 their statem ent which I find them to be true and voluntarily made. The 2nd accused led the investigator to discovery o f deceased properties. The evid en ce a g a in st th e a ccu se d p e rso n s le a d s to th e co n clu sio n th a t it w as th e accu se d w ho w as th e la s t p erso n to be seen w ith th e d eceased an d th ere is n o o th e r re a so n a b le e xp la n a tio n a p a rt from th a t th e y a re th e one w ho k ille d th e d e cea se d ' [Emphasis supplied]. The immediate question is whether the evidence that the appellants retracted confessions and the doctrine that they were last seen with the deceased while alive is watertight to form the basis of conviction. We are delighted to begin with the latter. In circumstantial evidence, where there is evidence that the accused person was last seen to be with the deceased alive, the presumption is that, unless there is plausible explanation, the said person is responsible for the death of the deceased. See Abel Mathias Gunza Bahati Mayani v. Republic (Criminal Appeal No. 267 of 2020) [2023] TZCA 25 (20 February 2023; TanzLII). This being a specie in circumstantial evidence, it was stated in Lezjor Teper v. Reginam [1952] A.C. 450 quoted in Malecha Mashala v. Republic (Criminal Appeal No. 447 of 2019) [2023] TZCA 123 (17 March 2023; TanzLII) that: 10 "It is also necessary before drawing inference o f the accused's guilt from circum stantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference." Are the trio appellants lastly seen together with the deceased before he succumbed his death? Counsel urged, and we are in the same footing that, PW4 is the only eye witness. We understand that, PW4 testified that with the aid of bright electricity light, he saw the 1st and 2n d appellants together with the deceased heading to Kaliyaya. However, as stated in Malecha Mashala v. Republic (supra), assurance must be provided if there are no any co-existing factors which would destroy the inference that the appellants were the last persons to be with the deceased before he succumbed unnatural death. We find the following to have destroyed the inference: one, PW4 did not recognize the appellants due to his failure to describe them. PW4's testimony that "Juma was present", "Mangi was a welder", "Ray and 4th, I could not remember" and that they lived together; do not provide assurance that they are the appellants herein. Two, PW4 testified that the deceased headed to Kaliyaya, but the said Kaliyaya was not called in evidence. Three, after the apprehension of the deceased by the appellants, they went with him to the livestock office. Again, there is no explanation what li followed thereafter. At pages 154 to 155 of the record of appeal, it is stated that: " The deceased passed with a bag up to Kaliyaya Shop. Juma was present he had stopped us from loading the goods that they should not be stopped and Mangi who was welding m echanicR ay and the fourth I could not remember, I know them that is Juma, that is Mangi. We have lived together. I was in the car where we were offloading cotton cake. The accused were like security guards. The deceased passed us and headed at Kaliyaya's shop. He was wearing a jeans trouser and zebra shirt he was carrying a blue and khaki back pack. There was a bright o f electricity lights at a distance o f 3 minutes. He knockedthey did not open at Kaliyaya's shop, the justice o f peace came and arrest them and went to the Livestock Office. We kept on working but the following day we heard someone is dead at the paddies at Isamilo. I found him to be the same who was at Kaliyaya with the same, clothes he was wearing. Black trouser and zebra shirt." Four, the chairperson one Jepthar who mentioned the appellants to PW1 that on the fateful day they were on duty as militiamen. Jephta also is alleged to be with police detectives when the second appellant led them to Mount Bukumbi where they recovered the deceased bag. Jephta 12 also witnessed search. Again, he was not called in evidence. Without this evidence, it may not be proved if the militiamen who PW4 claimed to have seen arresting the deceased and heading with him to Kaliyaya shop, were on duty during the incident date. Let the record speak by itself as found at page 140 of the record of appeal: "I n o te d one p e rso n w ho m ig h t h ave m ore d e ta ils he w as nam ed K a liy a y a b y then I d id n o t kn o w him . I noted he was selling/owning a shop. I waited for him to dose his shop and when he was leaving, I arrested him. I left with him for interrogation. The shop is at Bukumbi Centre. When I interrogated him, my aim was to know if he identified any people who were doing patrol on 6/8/2017. H e (K a liy a y a ) to ld m e to Find the ch airp e rso n o f "K ito n g o ji" nam ed Je p h ta r, he w ill a s s is t m e. He took me to Jephtar's home and we found him. I asked Jephtar for the names o f people who were doing patrol "sungusungu" 6/8/2017 at night at Bukumbi Centre. Je p h ta r m e n tio n e d Jum a S aid, Em m anuel, A m a n i @ ...M kw izu a n d M la n g ila ." [emphasis supplied] Five, it is in the evidence of PW1 that Inspector Masota was present when the 2n d appellant led them to where they hidden the deceased's bag. The said police detective was not called in evidence. More so, even 13 the seized properties tendered as exhibit P2 were not mentioned during committal proceedings. With the foregoing analysis, the appellants' counsel argued that, in the absence of those witnesses, who, to them were material to link the chain of events in circumstantial evidence, there would be multiple interpretations and hypothesis than that of guilty. They invited us to draw inference adverse to the prosecutions. Mr. Mwenda was of a different stance because, to him, such uncalled witnesses would have definitely testified on what was already in evidence. We are not prepared to go with Mr. Mwenda's stance. The witnesses were, indeed, material to establish that the appellants were last persons to be with the deceased when alive as allegedly testified by PW4. We thus accept the appellants' counsel invitation to draw adverse inference to the prosecutions for failure to call those witnesses. This in total implies that, the appellants were not the last persons to be with the deceased before he died. Last for our consideration is in respect of the appellant's confessions. They were all retracted and repudiated. The trial court however engaged in some procedural arrangements and finally it came to its satisfaction that the cautioned statement of the 2n d appellant (exhibit P3) and cautioned statement of the 3rd appellant (exhibit P4) were voluntarily made, so do the extrajudicial statement of the 2n d 14 appellant (exhibit P5). With this evidence, the trial court was confident and deployed them in evidence. As we noted above, the appellants' counsel still vow that, had the trial court went extra miles, it would have concluded that the cautioned statements were recorded out of time. They had the same sentiments on the extrajudicial statement particularly for not being signed by the 2n d appellant. We ventured through the record of appeal and realize that, the cautioned statement of the 2n d appellant (exhibit P3) was objected on the ground that it was recorded out of time. The learned trial Judge ruled out that, as the police were still under investigation, then the said period be excluded in terms of section 51 (2) (a) of the CPA. That being a clear understanding of the Law, the evidence of PW5 does not give a clear picture of the investigation which prevented the recording of the statement within time following the arrest of the accused early in the morning of 9th August, 2017. The statement was recorded the same day at 16:45 hours according to PW5. However, in the statement, exhibit P3, the recording commenced at 17:00 hours. Had the learned trial Judge considered this evidence, she would have concluded that, exhibit P3 was recorded out of the four hours prescribed by the law. In fact, she had no material within which to justify the application of section 51 (2) (a) of the CPA to exclude the period which it is claimed that the police detectives 15 were still conducting investigation. The evidence is lacking and we expunge exhibit P3 from the record. As to the cautioned statement of the 3rd appellant (exhibit P4), again, the appellant objected because it was recorded out of time for it is not clear when exactly it commenced in terms of time and date. PW6 testified that, the appellant was arrested on 12th September, 2019 at 12:30 hours. The recording commenced at 15:20 hours. However, in exhibit P4, there are two-time set. One is 15:20 hours and the other one is 9:20. There is also no certificate in the additional statement. In this latter, we were urged by the learned Senior State Attorney to take the part of the statement which to him seems to be proper and leave the other part which he conceded it lacked certificate. Our take in this advice is in the negative. In our considered view, there is no space in criminal procedure and the law of evidence permitting the court to choose part of the would be properly recorded cautioned statement and discard the improper one. The least we can do is to hold that, the infraction in the cautioned statement creates doubts on the manner the statement was procured, as such, should benefit the appellant. We expunge exhibit P4 as well. The remaining evidence for consideration is the extrajudicial statement of the 2n d appellant, exhibit P5. As was to exhibit P3 and P4, it 16 was also objected by the 2n d appellant for not been signed; appears to have two handwritings and failed to follow the Chief Justice Guide. However, the learned trial Judge did not comprehensively resolve the objections leveled by the 2n d appellant. The record of appeal at page 175 through 176 is a revelation to this fact as follows: "7776 issue o f examining the handwriting and thumb print is not for any person to comment That is the specific Field done by forensic experts also known as handwriting experts since none o f the parties has established to be one, I w ill not dwell on those grounds. On the 1st ground, the O Guide has mentioned the letter stating the prisoner was to be brought to Justice o f peace "usually with a letter". There is no mandatory forms there. In P e te r C h a rle s M a ku p ila A sk o fu v. R e p u b lic Crim inal Appeal No. 2 1 /2 0 1 9 Court o f Appeal o f Tanzania Dar es Salaam. The court explained key issues, which are: 1. The time and date o f arrest 2. The place o f arrest 3. The place he slept before the date he was brought to him. 17 4. Whether any person by threat or promise or violence he has persuaded him to give the statem ent 5. Whether he really wishes to make the statement on his own free will. 6. That, if he makes a statement ■ the same may be used as evidence against him. Having gone through the prelim inary o f the statem entthese requirements are com plied with. Thus, the statem ent was voluntarily made and it is adm itted and marked Exhibit P5." Our reading in the excerpt above note that, the trial Judge did not resolve the objections comprehensively regarding presence of two handwritings in one document and also that, the appellant did not sign through his handwriting in the extrajudicial statement. In our considered view, having failed to resolve the two components in the objection, the learned trial Judge had no basis within which to overrule the objections. The best he could have done was to consider the unresolved stuffs in favour of the appellant. This, she did not do. Accordingly, we proceed to expunge the extrajudicial statement (exhibit P5) basing on the unresolved infractions which formed the basis of the objection. Now, having expunged the confessions of the appellants (exhibits P3, P4 and P5) and having concluded that the appellants were not the 18 last persons to be with the deceased and taking into account that the two pieces of evidence formed the basis of conviction, we remain with no material within which to sustain conviction. The prosecution case was therefore not proved to the letter. The appeal is accordingly allowed. The judgment is hereby quashed and the death sentence is thus set aside. The appellants be set free, save for where there are other lawful reasons to hold them in custody. DATED at MWANZA this 26th day of February, 2026. M. C. LEVIRA JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 2n d day of March, 2026 in the presence of appellants in person, Mr. John Saimon Joss, learned State Attorney for the respondent/Republic and Ms. Gloria Masige, Court Clerk, is hereby certified as a true copy of the original.