Ngoko Manyangu vs Republic (Criminal Appeal No. 253 of 2023) [2026] TZCA 203 (2 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA fCORAM: LILA. J.A., MAIGE. 3.A. And MANSOOR. JA.l CRIMINAL APPEAL NO. 253 OF 2023 NGOKO MANYANGU.......................................................................... APPELLANT VERSUS THE REPUBLIC............................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Shinyanga) ( Kulita, 3 .) dated the 10th day of October, 2022 in Criminal Session No. 55 of 2017 JUDGMENT OF THE COURT 12th February & 2n d March, 2026 LILA. J.A.: The appellant, Ngoko Manyangu, was charged, tried and convicted with murder of Mwalu Dalushi contrary to sections 196 and 197 of the Penal Code, Chapter 16 of the Revised Edition 2002 (now Revised Edition 2023). She was condemned to suffer death. The allegation in the charge was that, the appellant murdered his grandmother namely Mwalu Dalushi, by hitting her with a big stick on several parts of her body, including the head, at Mwangudo Village in i Meatu District, Simiyu Region on 18/5/2016. The appellant had accused the deceased of witchcraft practices. The murder incident was witnessed by the deceased's daughter, Masaka Nindi (PW1), who raised an alarm, leading the villagers to arrest the appellant. Police arrived the next day, and the doctor namely Charles Enos (PW2) conducted an autopsy revealing the cause of death to be loss of blood from the nose, mouth and the injury she sustained on the facial part of the skull which was also broken, the finding he endorsed on the Post Mortem Report (PMR) which was tendered in court and admitted as exhibit PI. WP 4579 DSGT Upendo (PW3) visited the crime scene where she found the appellant already arrested by traditional guards famously known as "sungusungu", she formally arrested him and took him to Meatu Police Station where she recorded his cautioned statement (exhibit P2) confessing commission of the offence. In his brief sworn defence evidence, the appellant not only denied killing the deceased but also denied the deceased being his relative or knowing who killed her. He said, he just heard the name when the same was mentioned in the call for help ("Mwano"). He was nevertheless, convicted and sentenced as above stated. He was aggrieved, hence the present appeal. He initially advanced four (4) grounds of appeal. That was 2 subsequently followed by a supplementary memorandum of appeal with, again, four grounds of appeal. The appeal, however, turns on a point of law raised, with leave of the Court after abandoning all the grounds of appeal in the memoranda of appeal, by Ms. Gloria Ikanda, learned advocate, who appeared to represent the appellant at the hearing of the appeal. The issue related to: " Non-compliance with the law after the trial court had made an order that the appellant (then accused) be sent to a mental hospital for examination o f his mental status at the time o f committing the offence charged." Ms. Ikanda, in substantiating the point she raised, first referred the Court to page 27 of the record of appeal, where she said, there is an order by the trial High Court Judge that the appellant be sent to Isanga Mental Institute under section 220(1) of the CPA. After that order, she contended, it is not shown if the order was complied with and a report thereof furnished to the trial court as it was ordered on the appellant's state of mind before resuming the trial proceedings. According to her, the trial court was obliged to ascertain on the soundness of the appellant's mind which would have determined the way forward. Instead, without such report, from page 28 onwards, the record of appeal shows, the trial of the appellant proceeded to its conclusion as stated above. There was, in the circumstances, failure of justice. The trial of the appellant was unfair, she concluded. As a way forward, Ms. Ikanda urged the Court to nullify all the proceedings from immediately after the order for the appellant to be sent to Isanga Mental Hospital for examination onwards and the record be remitted to the trial High Court for it to ensure that its order is complied with and then proceed with the trial of the appellant according to law. Ms. Mushumbusi, learned Senior State Attorney, who represented the Respondent Republic, did not support the conviction and sentence. She conceded that the defence of insanity of the appellant was not properly treated by the trial court. For the interest of justice, she went along with the course proposed by her fellow learned advocate. The question before the Court is whether the defence of insanity raised by the appellant's advocate at the trial was properly attended to before proceeding with the trial. Having given due consideration to the proceedings in the trial court, we have reached the conclusion (and thereby agreeing with both the learned advocate for the appellant and the learned Senior State Attorney) that, the learned trial Judge did not adhere to laid down procedure when a defence of insanity is raised. Page 27 of the record of appeal to which Ms. Ikanda referred the Court, shows that the High Court, granted a prayer made by the appellant's advocate, that an order be made committing the appellant to Isanga Mental Institute for examination of his state of mind at the time of committing the offence in terms of section 220(1) of the Criminal Procedure Act, Chapter 20 R.E. 2019 (the CPA) and did so. It also ordered the In-charge of Isanga Mental Institute to comply with the provisions of section 220(2) of the CPA, now section 232(4) of the CPA, R.E. 2023 with a few amendments. The laid down procedure after such order is made is provided under subsections (3)(4) and (6) of section 220 of the CPA R.E.2019 which was applicable at the time of the trial. The said procedure was expounded with detailed lucidly in the case of Republic vs Madaha [1973] EA 515 and cited with approval as being a proper interpretation of the law by the Court in the unreported case of MT. 81071 PTE Yusuph and Another vs Republic, Criminal Appeal No. 168 of 2015 and also in Mwale Mwansanu vs The Director of Public Prosecutions, Criminal Appeal No. 105 of 2018 (unreported) that: 5 "First, where it is desired to raise the defence o f insanity at the trial, such defence should best be raised when the accused is called upon to plead. Second, upon being raised the trial court is enjoined to adjourn the proceedings and order the detention o f the accused in a mental hospital for medical examination. Third, after receipt o f the medical report, the case proceeds the normal way with the prosecution leading evidence to establish the charge laid and then doses its case. Fourth, upon the closure o f the prosecution case, the defence leads evidence as against the charge laid including medical evidence to establish insanity at the commission o f the alleged act. And, fifth, the court then decides on the evidence, whether or not the defence o f insanity had been proved on the balance o f probabilities. I f such enquiry be determined in the affirmative, the court will then make a special finding in accordance with section 219(2) and 220(4) o f the Act and proceed in accordance with numerated consequential orders. '(Emphasis added) We note from the record that the learned trial Judge seriously misdirected himself when he resumed the trial proceedings on 23/9/2022 6 by asking the appellant to plead on the charge before the report from the In-charge of Isanga Mental Institute having been availed to it stating the appellant's mental state at the time of the commission of the offence as the law dictates. Likewise, the trial began on the same date by recording the evidence of the prosecution witnesses. The trial court, before making an order committing the appellant to the mental hospital, should have appreciated what was taking place which necessitated his advocate to ask for adjournment so that his client could be taken to hospital for medical examination. Though the request was made and the trial court granted it and issued an order in that respect, it does not appear on the record of appeal that anything was done about that order in terms of its compliance and the report thereof being availed to the court before resuming the trial proceedings. Without waiting for the report from the mental hospital and giving due regard to it on the appellant's state of mind, it was difficult to expect, with setainty, that the appellant would duly follow the proceedings and align his defence properly. We are, therefore, of the settled mind that the misdirection had the effect of prejudicing the appellant's fair trial. We are accordingly compelled to nullify, as we hereby do, the proceedings of the trial court from 23/9/2022 onwards and the judgment thereof. The sentence is hereby also set aside. We hereby order that the appellant to be sent back to the trial court for it to proceed with the trial according to law from 23/9/2022 after the order was made committing the appellant to the mental hospital. Meanwhile, the appellant to remain in remand custody. DATED at SHINYANGA this 2n d 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 2n d day of March, 2026 in the presence of Ms. Gloria Ikanda, learned counsel for the Appellant and Ms. Mboneke Ndimubenya, learned State Attorney for the respondent/Republic via virtual Court, and Mr. Leopord Mabugo, Court Clerk; is hereby certified as a true D. R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL