Yika Jasamila @ Sungwa & Another vs Republic (Criminal Appeal No. 141 of 2022) [2026] TZCA 201 (2 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.141 OF 2022 YIKA JASAMILA @ SUNGWA..................................................1 st APPELLANT MAJESHI NSULUJA @ JIJI....................................................2 nd APPELLANT VERSUS THE REPUBLIC..................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Shinyanga) (Mkwizu. J.) dated the 18th day of March, 2022 in Criminal Session Case No. 75 of 2016 JUDGMENT OF THE COURT 9th February & 2n d March, 2026 MAIGE. 3.A.: The appellants together with one Mabula Bodo @ Kidahadi whose appeal abated for the reason of his death (Mabula), were convicted by the High Court of Tanzania with the offence of murdering Mongu Lugata, henceforward "Mongu" contrary to section 196 of the Penal Code which occurred on 21th May, 2015 (the material date). In accordance with the evidence on the record, Mongu was a lady with albinism. She was living with her five years old daughter at Gasuma i

Village, Mwaubingi Ward within the District of Bariadi in Simiyu Region. On the material date at night, she went to her friend Nkamba Saguda who was living at the neighborhood for a dinner. While there, the first appellant approached her and expressed a desire to discuss a private matter at her residence, a proposal to which she agreed. On the way to her house, the first appellant delivered the deceased to the second appellant and other accomplices who were hiding nearby. The following morning, Mongu's body was discovered near her residence by a passerby with her left leg and two fingers from her left hand amputated. The incident was reported to the police, in the response of which, some police officers arrived. They were accompanied with Dr. Assey (PW3) who examined the body of the deceased with the result that the cause of death was severe bleeding. Mlili Kasili (PW1), the Ward Executive Officer, was notified of the incident while on his way to Bariadi town. He suspended his journey and rushed to the scene of the crime and found the dead body being examined. In the course of investigation, Nkamba Saguda was taken into custody due to her close personal relationship with the deceased. Under interrogation by D 5355 Detective Surgent James (PW5), she provided a statement indicating that the first appellant was last seen departing

with Mongu on the material day and time herein mentioned. Acting on that clue, PW1 arrested the first appellant, who confessed to taking Mongu and delivering her to the other appellants, and subsequently, confessed to the same before PW5. He provided consistent confessions through both a cautioned statement (exhibit P3) and extra-judicial statement (exhibit P6) before A/ Inspector Masalu (PW3) and Liberate Mhagama (PW7), respectively. In these confessions, he also admitted payment of TZS 100,000.00 as consideration for task he performed. However, he denied having anything to do with the incident. Based on those confessions, the second appellant and the other person were arrested and subsequently, the second appellant confessed, through both a cautioned statement and extrajudicial statement, to the commission of the offence in question before PW5, as per exhibit P4 and PW7, as per exhibit P7, respectively. In their defence, the appellants denied being involved in the crime. The first appellant testified that he was on the material date at home with his family. That, on the next day in the morning, he heard an alarm being raised in the response of which, he went to the crime scene and found Mongu had been murdered. He said, he participated too in the burial ceremony of Mongu. He was, on 20th May, 2014 arrested by police 3

and searched and when he asked what was up, he was told that he was being suspected of the murder of the deceased. The second appellant claims that he was not in the village when the offence was being committed. On 10th May 2014, he said, he went to Ikungulyandili Village to attend to his sick mother in law one Tabu Thomas where he stayed up to 12th May, 2014. He stated that after his mother in law had been referred to Bugando Hospital for further treatment, he traveled with her to Mwanza where he remained until 14th May 2014. He further testified that he was arrested on 6th June, 2014 in Bariadi at the police station while attempting to secure bail for his brother called Mangu Suluja. He categorically denied signing any confessions, maintaining that any such statements were the result of torture. Alex Ndalila (DW3) allegedly the husband of the late Tabu Thomas, claimed that he was together with the second appellant while rushing his wife to Bugando Hospital. In its well-reasoned judgment, the trial court found that the case against the appellants was proved beyond reasonable doubt. As regards the first appellant, the trial court's primary consideration was his oral confession before PW1 and PW5, in which he admitted to delivering Mongu to the second appellant and his confederates. This admission was

subsequently repeated in both his cautioned statement (P3) and extrajudicial statement (P6). In effect, the trial Judge reasoned that those facts were sufficient to establish that the first appellant was the last person to be seen with Mongu. Having examined his defence, the trial court was satisfied that it did not raise any reasonable doubt on the proposition from his oral and written confessions as above stated that, the appellant was the last person to be seen with the deceased. Besides, the trial court found that, the first appellant's defence did not give any plausible explanations that would rebut the presumption that he who is the last person to be seen with deceased is the killer. The trial court did not accept the first appellant's defence that his confession in exhibit P3 was induced by torture because that would have, if true, been raised at the stage of tendering the statement. The trial court reasoned further that, even if that was excluded, there was irrefutable confession before the justice of peace (exhibit P6) and oral confession before PW3 and PW5. It, therefore, convicted him with the offence and sentenced him to death by hanging. In respect to the second appellant, the trial court in the first place, agreed with the defence counsel that, as a matter of principle, the first appellant being a co-accused, his confessions could not be used to

sustain conviction against the second appellant in the absence of corroborative evidence. That aside, it was of the view that, the respective confession was corroborated by the second appellant's own confession in exhibit P4 and P7. While aware that the respective confessions were repudiated and, therefore, could not be relied upon unless either corroborated in material particulars or the court is satisfied that it was true and nothing but true, the trial court was satisfied that it was as such. It, henceforth, convicted the second appellant with the offence and sentenced him to death by hanging. The appellants have been aggrieved by the conviction and sentence. They have henceforth instituted the current appeal. In their initial memorandum of appeal lodged on 17th August, 2022, the appellants raised 7 grounds. Through a supplementary memorandum of appeal lodged on 6th February 2026, they added 7 more grounds. It has to be noted that, at the hearing, the first appellant through his counsel dropped all the grounds save for ground 7 in the initial memorandum of appeal which for the purpose of this appeal, shall be treated as the first ground. It can be paraphrased as follows: 1 . That the case against the first appellant was not proved beyond reasonable doubt

On his part, the second appellant, through his counsel, opted to argue ground two and seven in the initial memorandum of appeal and grounds one, two and six in the supplementary memorandum of appeal. For the purpose of this appeal, grounds 2 in the initial memorandum; and grounds one, two and six in the supplementary memorandum of appeal shall be treated as grounds 1,2,3 and 4, respectively whereas ground 7 will be treated as ground 5. In effect, the grounds of appeal for the second appellant are paraphrased as follows:

1. The trial court erred in iaw to convict the appellant based on the prosecution evidence without considering the failure o f the prosecution to tender the cap and torch to attribute their evidence.

2. The trial court erroneously relied on the appellants' cautioned statements in exhibits P3 and P4 which contravened the requirement o f section 50(2) o f the Criminal Procedure Act.

3. The trial court erroneously relied on the extrajudicial statements in exhibits P6 and P7 which violated the Chief Justice' Guidelines.

4. The conviction o f the appellants was based on confessions before police officers and justices o f peace without any independent evidence Unking the appellants with the crime.

5. That the case against the appellants was not proved beyond reasonable doubt At the hearing, the first appellant was represented by Mr. Augustino Ijani, learned advocate whereas the second appellant was represented by Mr. Audax Constantine, also learned advocate. On the other hand, the respondent Republic was represented by Ms. Sophia Fidelis Mgassa, learned Senior State Attorney, who was assisted by Ms. Nancy Medard Mushumbusi, also learned Senior State Attorney. In his brief submission in support of the first ground of appeal, Mr. Ijani submitted that, because he did not expressly confess to have committed the offence, the first appellant's confession was self- exculpatory, which could in law not link him with the offence. He clarified, making reference to page 280 of the record that, what the first appellant admitted in the said statements is that he was paid to lure Mongu and hand over her to the second appellant, Mabula, Majeshi and Sita Nhandi. He did not, however, admit knowledge of the evil intention to murder the 8

deceased. That, he submitted, does not amount to confessing to commit an offence of murder. The confessions of the second appellant, he submitted, could not, without being corroborated, be used against him as the second appellant was a co-accused. Though the evidence of Nkamba Saguda from whom the first appellant picked the deceased could have been corroborative, he submitted, the respective witness was not produced. Her statement was also not tendered despite that the prosecution had filed a notice of intention to produce the same. That, he submitted, affected the weight of the case against him. He concluded therefore that, the case against the first appellant was not proved beyond reasonable doubt and thus he should be set free. Submitting in support of the second appellant's first ground, Mr. Constantine argued that failure of the prosecution to tender the cap and torch recovered at the crime scene and which was discovered to be that of Sita Nhandi, a co-accused who expired during trial, rendered the prosecution evidence weak as those exhibits were crucial to link the chain of the circumstantial evidence. In respect to the second ground, it was his submission that because the time of the arrest of the second appellant is not clear in evidence, 9

there is no proof that it was recorded within the prescribed period of four hours from the time when he was restrained. He submitted that while the evidence at page 111 suggests that he was arrested on 7thJune 2014, the evidence of PW2 at page 285 indicates that he was arrested on 6th June, 2014 at 19:00 hours. With the uncertainty of the date of the arrest, he submitted, the statement should be deemed to have been extracted out of the prescribed period of four hours. He prayed, therefore that, the respective cautioned statement be expunged from the record. In relation to the third ground, he submitted that, the extrajudicial statement of the second appellant was recorded without observing the Chief Justice's instructions. He argued that while the statement indicates that the second appellant had no fresh wounds, there was nothing to show that he was inspected, considering that the Justice of Peace (JP) was a lady. The statement, he further contended, was silent on the date of the arrest of the second appellant. It just stated that he was arrested on Friday at 05:00 pm. In addition, he submitted, the JP did not certify and sign under her hand as to the willingness and voluntariness of the second appellant to have his confession recorded. The counsel submitted, therefore that, since the Chief Justice's Instructions must, as a matter of principle, be followed religiously, the omission by the JP to 10

comply with the above requirements or either of them, renders the extrajudicial statement under discussion unreliable. To cement his view, the counsel referred to us the case of Manoja Masalu and Another Bupomi v. R (Criminal Appeal No. 143 of 2020) [2024] TZCA 409, TANZLII. He, therefore, urged us to expunge the extrajudicial statement of the second appellant from the record. He concluded, therefore that, if the second appellant's cautioned statement and extrajudicial statement are excluded from the evidence and, in the absence of the evidence of Nkamba Saguda on the record, nothing would link the second appellant with the commission of the offence. On the fourth ground, Mr. Constantine maintained as his confessions were retracted, the second appellant could not be convicted without corroboration. He submitted that, the evidence of Nkamba Saguda despite being material to corroborate such statements, it was, for undisclosed reasons, not produced. In conclusion and arguing the last ground, it was Mr. Constantine' submission that the case against the second appellant was not proved beyond reasonable doubt. He prayed therefore, that he be set free. In reply, Ms. Mgassa concurred with Mr. Ijani on the first ground of appeal for the first appellant that, the first appellant's confession was ii

self-exculpatory. She submitted that in the cautioned statement, the first appellant did not confess committing murder, and therefore, such statement cannot be used to convict him on murder. The statement, she submitted, does not demonstrate existence of common intention that would incriminate the second appellant under section 23 of the Penal Code, as knowledge of the intention to commit the offence is an essential element of the doctrine. She, therefore, prayed that the first appellant be set free. In relation to the first ground in the appeal of the second appellant, it was Ms. Mgassa's submission that the cap and torch were not material evidence which is why they were not tendered in evidence. In her contention, it is not for the defense to decide what evidence should be tendered by the prosecution as the duty to prove the case is on the prosecution. In her understanding, non-production of the respective exhibit could in no way lead to the second appellant being found innocent. After all, she submitted, the respective torch and cap had nothing to do with the second appellant as they were alleged to belong to Sita Nhandi whose case abated during trial. Concerning the second ground, it was her submission that the second appellant's cautioned statement was not recorded out of time as 12

alleged or at all. She clarified citing the testimony of the arresting officer (PW4) that, the second appellant was arrested at Ikungulyambili Village on 6th June, 2016 at around 00:00 hours where he was hiding and that, having been arrested, they proceeded to another village called Ikungulyabashashi to look for other suspects. From there, she submitted, they went to Bariadi and arrived thereat on 7th June, 2014 at 6:00.00 hours. His statement, she submitted, was recorded at 800:00 hours which was within the period of four hours allowed to record a cautioned statement in terms of section 51(2)(a) of the Criminal Procedure Act. With regard to the third ground, it was her submission that the recording of the extra-judicial statement of the second appellant substantially complied with the Chief Justice's Instructions. She did not agree with the complaint that the second appellant was not inspected before his statement was recorded as it is expressly stated in his cautioned statement that second he was inspected and found without fresh wounds. The fact that the JP was a lady does not offend any of the Guidelines of the Chief Justice. The mention of Friday as the date of the confession, she submitted, does not necessarily mean the statement lacks disclosure of the date of arrest, as it likely refered to the previous day, which was on 6thJune, 2014. The omission to sign after certification 13

as to the voluntariness of the procurement of the statement, though an irregularity, it was, in her contention, inconsequential as the JP signed at the end of the statement. In any event, she submitted, the said anomaly did not prejudice the second appellant. On non-production of Nkamba Saguda as a witness, the learned Senior State Attorney contended that, that was not without reason as the record is clear that her whereabouts could not be traced which is why she was not produced. In any event, she submitted, her evidence was only relevant in relation to the involvement of the first appellant in the offence. It had nothing to do with the accusation touching the second appellant, she added. In conclusion, therefore, and, responding to the last ground, it was her humble submission that the case against the second appellant was proved beyond reasonable doubt as rightly decided by the trial court. She prayed, therefore that, the appeal by the second appellant be dismissed. With the above background, it may be desirable to consider the merit or otherwise of the appeal. We propose to start with the appeal by the first appellant. The issue here is whether the statements of the appellants in exhibit P3 and P6 were sufficient to link him with the murder of the deceased. Notably, both counsel would wish the Court to answer 14

the question negatively. We shall hereinafter examine the correctness or otherwise of the counsel's concurrent submissions on the issue. We note that, in both confessions, what the first appellant admitted was that he was the one who lured the deceased from Nkamba Saguda and produced her to the second appellant and the two accomplices. He expressly denied knowledge of their ill intention. That, it was after the discovery of the body of the deceased on the next day that, the first appellant realized their guilty intention. In accordance with the judgment of the trial court, the first appellant was convicted on circumstantial evidence inferred from the fact that he was the last person to be seen with Mongu; confessional statements and the doctrine of common intention. In relation to the first appellant's confessions, the trial established as a point of law as per page 402 to 403 of the record that: "A dose and objective evaluation o f the 1st accused's statement (Exhibits P3 and P6) in relation to the prosecution evidence reveals that the statements contain nothing but truth. He specifically admitted having handed the deceased to the rest o f the accused persons the fact, which is corroborated by PW1,PW3,PW5 and PW9' evidence. "

It may be seen from the above statement that the finding of the trial court was not that the first appellant admitted to have committed the offence of murder but to have handed the deceased person to the other accused. We noted from exhibits P3 and P6 that the first appellant clearly expressed that he did not know the evil intention of the other accused to murder the deceased. He realized so on the next day when an alarm was raised and visited the scene of crime where he witnessed the body of the deceased lying with serious injuries as per exhibit PI. He clearly expressed in his statements that he did not disclose to the relevant authorities as he feared to be arrested. Come what may, therefore, the statement was, aside from not being expressly admissive to the commission of the offence was, self-exculpatory as rightly submitted by both counsel. It was not, as a matter of law, sufficient to link the first appellant with the commission of the offence. Nor could, in the absence of other independent evidence, establish common intention on the part of the first appellant with murderers to commit the offence. Therefore, in Dismas Mwakakatwe and Another v. R (Criminal Appeal No. 32 of 1994) [1995] TZCA 105, TANZLII where the first appellant was convicted based on a confessional statement in which he admitted to have shown the third and fourth accused the house of the deceased and then continued to sleep; the Court held that such a 16

statement was not, by itself sufficient to link the first appellant with the offence. In particular, the Court observed: "A dose examination o f the 1st appellant's Exhibit P4 clearly shows that this was not In that statement, all that the 1st appellant admitted was that he showed the 3 dand 4 h accused the house o f the deceased and continued to sleep. We are unable to find anywhere in the statement where it is indicated that the 1st appellant admitted being present at the scene o f crime when the deceased was being killed. In such circumstances, and as correctly submitted by Dr. Kapinga learned counsel, there was no confession on the part o f the first appellant which together with the confession o f the 2n d appellant could be used against him. The only evidence available against him (1st appellant) are the statements o f the 2nd appellant, Exhibits P2 and P5 in which the 2nd appellant, a co-accused, implicated the 1st appellant. This atone, however, it should be observed, would not be enough to sustain a conviction against the 1st appellant as Section 33(2) o f the Evidence Act, 1967does not allow." For the foregoing reasons, therefore, we agree with the concurrent submissions of the counsel that, the confessional statements of the first 17

appellant was self-exculpatory and therefore, could not form basis of his conviction. This would have but for the reasons to be apparent as we discuss the second appellant's appeal, been sufficient to allow the appeal by the first appellant. In that respect, therefore, we shall conclude the first appellant appeal after concluding our discussion on the second appellant's appeal. The above said, we now direct our mind on the first ground in the second appellant's appeal. The complaint is failure of the prosecution to tender the cap and torch allegedly discovered at the scene of the crime and which was identified to be of Nkandi, a co-accused who demised before the disposal of the trial. The complaint cannot consume much of our precious time because we have examined the record in respect thereof and satisfied ourselves that, such piece of evidence had no relevance in proof of the case of either of the appellants. It could have perhaps been relevant to prove the case of the said Nkandi who is unfortunately not a party to this appeal. Without much ado, therefore, the first ground in the second appellant's appeal is hereby dismissed. We proceed with the second ground as to whether the cautioned statement of the second appellant (exhibit P4) was extracted out of time. Mr. Constantine submits that it was out of time because the prosecution 18

evidence is not clear on the date and time of the arrest of the second appellant. For the respondent, it was submitted, that the arresting officer (PW4) clearly established the date and time of the arrest of the second appellant along with the period used to convey him from Ikungulyambili Village through Mwadobhana and Dutwa villages to Ikungulyabashashi Village for investigation purpose and conveying him to Bariadi Police Station where he was detained and two hours after, interviewed. In the humble submissions of the learned Senior State Attorney, and which is based on section 50(2) of the CPA, such time is as of law, excluded in computing time. We note from the record that, when the prosecution sought to produce the statement, it was objected, on among other grounds, being time barred. In overruling the point, the trial court having considered the evidence in trial within a trial and established based on the testimony of the arresting officer that, the appellant was arrested on 7th June, 2014 at 00.00 hours and produced to Bariadi at 6:00 hours, it observed: "Now, going by PW2's evidence, it is clearly that the time from 00:00 hours to 6.00 hours is excludable in reckoning time for interviewing a person under restraints as per the provisions o f section 50(2) (a) o f the Criminal Procedure Act This is because, during this time the accused was 19

involved on other investigation processes connected with the same offence, and part o f the time was used by police officer to transport the 2n d accused to Bariadi Police Station. Therefore, the time from 6.00 am when the accused arrived at the Bariadi police Station to 8.00 am is well within the four hours provided by the law." We have gone through the evidence of the arresting officer and it has become clear to us that, when the second appellant was arrested at Ikungulyambili village at 00.00 hours on 7th June, 2014, he led the arresting police to the other villages herein mentioned to search for other suspects and it was not until at 6.00 am that they arrived in Bariadi town and handed him to the Bariadi Police Station. As exhibit P4 speaks for itself that the recording started at 8.00 am, it was well within time. This is because, as correctly submitted for the respondent, under section 50(2) of the CPA, time spent in conveying the suspect from one point to another for investigation purpose is excluded in counting time for the purpose of limitation in terms of section 50(1) thereof. On that account, we find the ground without merit and it is dismissed. This now takes us to the third ground as to the propriety of the extraction of the extrajudicial statement of the second appellant (exhibit P7). It is challenged for not complying with the Chief Justice's 20

Instructions. Compliance of the Chief Justice's Instructions by a JP when recording extrajudicial statement, it is settled, is of paramount significance. We have consistently insisted for the respective Instructions to be adhered to religiously. See for instance Joseph Thadei Msingwa v. R, Criminal Appeal No. 367 of 2008 (unreported); Peter Charles Makupila @ Askofu v. R, Criminal Appeal No. 21 of 2019 [2021] TZCA 197, TANZLII and Manoja Masalu and Another Bupomi v. R (supra). The equity behind the requirement cannot be explained much better than in our following statement in Joseph Thadei Msingwa v. R {supra) as we quoted in Peter Charles Makupila @ Askofu v. R {supra)\ "We think the need to observe the ChiefJustice's Instructions are twofold. One, if the suspect decided to give such statement, he should be aware o f the implications involved. Two, it will enable the trial court to know the surrounding circumstances under which the statement was taken and decide whether or not it was given voluntarily . " The complaint in this respect is on three areas. In the first place, it is complained that the JP did not inspect the second appellant in his body before she had recorded his statement. In our reading, however, such

a requirement was complied with. As it may appear at page 297 of the record, that the JP made it expressly in the statement that "nimemkagua mwi/i wake. Matokeo yake ukaguzi wangu ni kama ifuatanyo: HANA JERAHA LOLOTE JIPYA."Utera\y translated, the said statement means that, I have inspected him and found no fresh wounds. There was a complaint that the JP being a lady, she could not have inspected the second appellant's body. However, in as long as the Chief Justice's Instructions are silent on that, the anomaly has nothing to do with the validity of the extra-judicial statement. Next, it was a complaint that the confession is mute on the date of the arrest. Ms. Mgassa submits that the statement indicates that it was on Friday, and this was enough to comply with the requirement. As per the authority in Peter Charles Makupila @ Askofu v. R (supra), the time and date of the arrest is one the important details from the accused persons which have to be reflected in an extrajudicial statement. In here, what is reflected from the first appellant about the date of his arrest is that "NILIKAMATWA SIKU YA IJUMAA MUDA WA SAA 11.00 JIONI" meaning in unofficial English translation, I was arrested on Friday at 5:00 pm." Ms. Mgassa submits that the mention of Friday was in reference to the 6th day of June, 2014 when he was arrested as the extrajudicial 22

statement was recorded on Sunday. With respect, in the absence of evidence from the JP this would be an assumption of fact as there are many Fridays in the year. In our view and in order to avoid ambiguity, the date of arrest of the suspect has to be clear. If the JP had understood the respective statement to mean the second appellant was arrested on 6th June 2014, she should have expressly noted so in the statement, rather than leaving the trial court or the appellate court to ascertain the date by inference. We therefore, agree with Mr. Constantine that, nonmention of the date of arrest in the statement amounted to non-compliance of the Chief Justice's Instructions. The third complaint in this respect is the omission on the part of the JP to sign after certification as to the readiness of the second appellant to make the confession. In the statement in question that part appears to have been signed by the appellant himself. There is no signature of the JP. Ms. Mgassa contends that, that was a minor irregularity which could be tolerated without occasioning failure of justice. She has not cited any authority in support of that view despite there being, as we have demonstrated above, many authorities in support of the proposition that the Chief Justice's Instruction must be followed religiously. The requirement that the JP should certify under 23

his hand and signature as to the willingness and voluntariness of the suspect to confess, is one of the essential elements of an extra-judicial statement. In relation to this, we observed in Peter Charles Makupila @ Askofu v. R (supra) as follows: "It is dear from the above form that the person or suspect who wishes to make his statement has to commit himself over his readiness to voluntarily make his statement and thereafter sign. Then ; the statement is recorded by the Justice o f Peace who signs after completing i t " In the strength of the foregoing, therefore, we find the complaint in the third ground of appeal with merit and we allow it. As a result, we exclude the extra-judicial statement of the second appellant from evidence. Having said that, we shall now determine the fourth ground in the appeal by the second appellant and part of the first ground in the appeal by the first appellant in relation to the evidence that remains on the record. The issue is whether the remaining evidence is sufficient to link them or either of them with the offence. Though we have already held and indeed it is the law that, the confession by the first appellant being self-exculpatory, it cannot be used to sustain conviction, it is equally the 24

law that such evidence can be used against him to corroborate other pieces of evidence which circumstantially link him with the offence. For instance, in Dismas Mwakakatwe and Another v. R (supra) despite its refusal to sustain conviction based on the cautioned statement of the first appellant because he did not admit committing offence, the Court used such statement against him as corroboration to an incriminating confession by his co-accused. If we can quote, the Court observed: "In this case , we agree with Lrs. Makuru, learned Senior State Attorney that the confession by the 2nd appellant was supported by the following factors: Firstly, the fact that the first appellant knowing the historical background in which the deceased was on a number o f occasions a victim o f thefts involving the J dand 4 h accused, agreed to show them (3d and 4h accused) the house o f the deceased at the time o f the night for the sale o f radio. The 1st appellant, a grandson o f the deceased must have known that their mission was notan innocent one. On this, we are satisfied that the learned judge properly directed himself. Secondly, the second morning, after the murder o f the deceased, the first appellant claims in his statement that he heard from the 2nd appellant o f the death o f the deceased. Yet he did not tell anybody about the death o f the deceased, his 25

grandfather. Furthermore , the 1st appellant also did not notify o f the visit o f the 3 d and 4 h accused to his house on the night o f the incident This is unusual conduct on the part o f the first appellant It reflects a guilty conscience which lends support to the statement o f the 2nd appellant that he (1st appellant) was present at the time when the deceased was killed." In the present case, the trial Judge noted that the second appellant's confessions in exhibits 4 and P7, implicated the first appellant and the other person by establishing both their prior knowledge of the plot and their physical presence at the crime scene. Having warned itself of the danger of relying on such evidence and upon considering the circumstances, the trial court took it that, it was satisfied that the respective confessions were true. She concluded, in respect to the first appellant that, the respective confessions as corroborated by his own confessions were enough to circumstantially link the second appellant with the offence. Concerning the second appellant, the trial judge concluded, among others that, the retracted confessions of the second appellant was duly corroborated by that of the first appellant. We can pose here and hold that, as a matter of principle, the trial court was quite correct in holding that, the confessional statement of the second 26

appellant could be used to link the first appellant with the offence if it was, among others, corroborated. She was however, not correct in holding that the confessional statement of the first appellant could be used to corroborate the retracted confession of the second appellant. This is because, as we held in Ali Salehe Msutu v. R [1980] TLR 1 "an exculpatory statement made by one accused cannot be used to incriminate another persoti'. Assuming that the statement of the first appellant was inculpatory, yet it could not be capable of corroborating the second appellant because it is equally a principle of law that for a confession of an accomplice to be used to incriminate another, it must be corroborated; and that the evidence which requires corroboration cannot corroborate. See: Jimmy Runangaze v. Republic, Criminal Appeal No. 159 'B' of 2017 [2018] TZCA 188, TANZLII. The issue which may arise here is whether, under the circumstances of this case, in the absence of his extrajudicial statement, the cautioned statement of the second appellant can be used to sustain conviction against the appellants. Mr. Ijani has suggested , it would have not been relied upon without the trial court warning itself of the danger for relying on such kind of evidence. Indeed, that has been the position of the law in our jurisdiction since the decision of the Court for East Africa 27

in Tuwamoi v. Uganda [1967] EA 84 which has been referred in Dickson Elia Nsamba Shapwata and Another v. R (Criminal Appeal No. 92 of 2007) [2008] TZCA 17, TANZLII, where it was observed as per His Lordship Duffus as follows: " The present rule then as applied in East Africa, as regard to retracted confession, is that as a matter o f practice or prudence the trial court should direct itself that it is dangerous to act upon a statement which has been retracted in the absence o f corroboration in some material particulars, but the court might do so if it is fully satisfied in circumstances o f the case that the confession must be true" Notably, the trial court while in mind of the presence of both the extrajudicial statement and cautioned statement of the second appellant, it rightly directed itself on this principle of law and believed the respective confessions to be true. At this juncture, it may be significant to observe that, the admission of the second appellant's cautioned statement was retracted during trial on account that the second appellant was tortured. In his defence both in the mini trial and the main trial, the second appellant produced a PF3 (exhibit Dl) to establish that he was tortured before signing into the confession statement. We note that in his 28

testimony during trial within a trial appearing at page 115 of the record, the second appellant testified that: 7 was tortured from 22:00 hours to 3:00 am. I was then taken to the lockup. On 7/6/2014 at around 8:00 hours Afande Dominick came and took me to the room. He gave me a chair. He asked me if I admit the offence. I refused. I was handcuffed. Afande Dominick ordered me to kneel\ then Afande James took me under table. They were telling me to confess that I killed the deceased. They started to beat me. They asked me again if I confess or not Because two accused in this case had died, Dede Madondo and Sita Nkandi because o f the said torture so I was scared, I decided to confess." Regardless of truthfulness or otherwise of the above evidence, we find it dangerous to rely on the retracted cautioned statement of the second appellant without corroboration, to sustain conviction of the appellants. We have also considered that the extrajudicial statement of the second appellant which would corroborate such statement has been excluded. In view of the foregoing and to the extent as afore stated, we find the appeal with merit and we allow it. As a result, we quash the 29

convictions of the appellants and set aside the sentences thereof. We further order that the appellants be released forthwith from custody, unless they are otherwise lawfully held. DATED at MSHINYANGA this 28th day of February, 2026. S. A. LILA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL The Judgment delivered this 2n dday of March, 2026 in the presence of Appellant in person, Mr. Augustine Ijani, learned counsel for the 1s t Appellant also holding brief for Mr. Audax Constantine, learned counsel for the 2n d Appellant, via virtual Court, Mr. Christopher Msuya, learned Senior State Attorney for the respondent/Republic and Mr. Leopord Mabugo, Court Clerk; is hereby certified as a true copy of the original. O D. R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL 30