Hamis Ernest @ Mashaka & Another vs Republic (Criminal Appeal No. 743 of 2024) [2026] TZCA 157 (27 February 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCORAM: LEVIRA, J.A., MDEMU, 3.A. And ISSA. J.A.^ CRIMINAL APPEAL NO. 743 OF 2024 HAMIS ERNEST @ MASHAKA ...................................................... 1 st APPELLANT RENATUS SIMON @ MSOGIJE....................................................2 nd APPELLANT VERSUS THE REPUBLIC............................................................................RESPONDENT (Appeal from decision of the High Court of Tanzania at Mwanza) (Ndvansobera, J.^ dated the 10th day of March, 2022 in Criminal Session Case No. 85 of 2016 JUDGMENT OF THE COURT 11th & 27th February, 2026 LEVIRA, J.A.: The appellants were aggrieved by the convictions and death sentences meted out on them by the High Court of Tanzania, at Geita in Criminal Session Case No. 85 of 2016 where they were charged with murder contrary to sections 196 and 197 of the Penal Code, Cap 16 R.E. 2002. The prosecution alleged that on 1s t April, 2015, at about 20:00 hours, at Bugulula Forest, in the District of Geita, the appellants murdered one Gervas Gerus. The appellants pleaded not guilty to the charge and thus the prosecution i had to parade six witnesses and tender six exhibits to prove their case against them. Briefly, the prosecution evidence was to the effect that: Godfrey Gerus (PW1) was living with his brother Gervas Gerus (the deceased) who worked as motorcycle rider, commonly known as "bodaboda " On 1s t April, 2015, his brother left home for work but he never returned. PW1 decided to go to their sister one Adelata Gerus at Nyankumbu Street in Geita to sleep over there. In the night his sister received calls from deceased colleagues informing her that, Gervas had sent a passenger since morning but never returned to their station. On 2n d April, 2015, the said sister reported to Geita Police Station. A search was mounted in vain. On 11th April, 2015, PWl's father was informed by the owner of the motorcycle who had employed the deceased that, the body of a person was seen in the forest called Bugulula. PW1 went to the scene and found Police Officers have already arrived and a decomposed body of a person, its head was severed from the trunk. He identified it to be of Gervas Gerus by the clothes found at the place where the body remains were found. E. 9206 D/SGT. Martine was among the Police Officers who arrived at the scene of crime on the material day after receiving an information from motorcyclists 2 that, a suspect (the second appellant) of theft and homicide was arrested. PW4 interrogated the second appellant who told him that, there were other suspects waiting for him somewhere and he admitted to have killed the motorcycle rider. PW4 went with the second appellant to his fellows and when the first appellant saw the Police, he started running but they manage to arrest him. According to PW4, the first and second appellants led them to the scene of crime where they found a piece of human leg, one white rubber, a shirt and trousers (jeans) which was torn, a knife, a piece of rope they had tied him. PW4 drew a sketch plan of the scene of crime. The exhibits were collected and parts of the deceased were collected and taken to the mortuary. The appellants were taken to the Police Station for interrogation. PW4 recorded the second appellant's cautioned statement (exhibit P3) and E. 1454 S/ SGT. Shaban (PW6) recorded the statement of the first appellant (exhibit P6). Jovin Muganyizi (PW5), a retired Clinical Officer accompanied Police Officers to the scene of crime. She testified that, she saw a femurs and skull bones which when examined, was satisfied that were of a human being and the cause of death was blood clot. She filled a postmortem report which she tendered during trial as exhibit P5. Another prosecution witness who visited the scene of crime on the material day was Peter Donald Ng'wenesho (PW2), the then Chairman of Mkoani Kalangalala Street, Geita Municipality. His testimony was almost similar to that of other prosecution witnesses regarding what they found at the scene of crime. In addition, he testified that the clothes found close to the decomposed body of a human being were dilapidated to the extent of unrecognition. The first appellant's extra judicial statement was recorded by Hamad Hussein (PW3), a Ward Executive Officer (WEO) from Kalangalala Ward. He testified that on 13th April, 2015 while in his office, the first appellant was sent there by a Police Officer and he recorded his statement. According to him, the first appellant confessed to have murdered a motorcycle rider at the junction towards Nyela village. He tendered the extra judicial statement of the first appellant (exhibit P2). After closure of the prosecution case, the appellants were given opportunity to defend their case. The first appellant testified that, he was arrested by the Police Officers on 28th March, 2015 and taken to various Police Stations. On 30th March, 2015, he was taken to Samina Forest towards Katoro where he was tortured, forced to admit the offence and sign the cautioned statement. He denied to have taken the Police to the scene of crime. On his part, the second appellant also denied to have been involved in killing Gervas Gerus. He testified that on 11th April, 2015, the Police Officers went to the place where he was working and arrested him. He was taken to Geita Police Station and while there, he was interrogated by three Police Officers, but the statement which they wrote was not read over to him. He testified further that, he did not lead Police Officers to Bugulula forest as claimed by the prosecution witnesses. The trial court, having weighed the evidence by both parties, was satisfied that the prosecution proved their case against the appellants to the required standard. As a result, the appellants were convicted and sentenced as intimated earlier; hence, the present appeal. In this appeal, the appellants presented a memorandum of appeal comprising of twelve grounds and the counsel for the first appellant presented one ground of appeal through a supplementary memorandum of appeal filed in Court on 6th February, 2026. At the hearing of the appeal, Messrs. Anthony Nasimire and Steven Kitale, learned advocates represented the first and second appellants, respectively; whereas, the respondent, Republic had the services of Mr. Michael Lucas Ng'hoboko, learned Senior State Attorney. Mr. Nasimire argued only the first ground of appeal in the memorandum of appeal and abandoned other grounds, together with the ground of appeal appearing in the supplementary memorandum of appeal which he filed in Court on 6th February, 2026. It was his submission that, the prosecution did not prove the case against the first appellant to the required standard. He challenged the trial court for relying on extra judicial statement of the first appellant to ground his conviction. The main argument being that, the said statement was recorded by a justice of piece who was a Ward Executive Office (WEO), one Hamad Hussein (PW3) out of court premises. He added that, ordinarily, justice of peace works with court but PW3 was not a justice of piece for the purpose of proceedings of the court. Besides, he said, the recording contravened the Chief Justice Guideline but the trial Judge ruled out that, the identified irregularities did not affect the value of the statement. He urged us to find that, it was wrong for the trial court to rely on such statement and expunge it from the record. According to Mr. Nasimire, another evidence relied upon by the trial court to convict the first appellant was his cautioned statement (exhibit P6). Nevertheless, he submitted, this statement was recorded out of four hours provided by the law and there was no extension of time sought and granted. He referred us to page 45 of the record of appeal where PW6 (SSG. Shaban) who recorded the said cautioned statement stated that, the case file was handed to him on 12th April, 2015 but he recorded the first appellant's statement on 11th April, 2015. Mr. Nasimire argued that, this contradiction of when the statement was recorded was not resolved by the trial Judge despite the fact that the appellant stated in his defence that, he was arrested on 28th March, 2015 and not 11th April, 2015 as alleged by the prosecution. In addition, he argued, even if it is agreed that the statement was recorded on 11th April, 2015, still it was recorded out of time. Therefore, he submitted that the trial Judge was not right to rely on that statement to convict the first appellant. He thus prayed for the said statement to be expunged from record for being recorded out of time. Another prosecution evidence attacked by Mr. Nasimire was the postmortem report. He argued that the said report was prepared by a clinical officer one Jovin Muganyizi (PW5) who was not able to fill it properly; the only thing he said was that, the deceased was injured by a sharp instrument at page 111 of the record of appeal while the evidence on record showed that the deceased was found already decomposed. According to Mr. Nasimire, a pathologist would tell better the cause of death than a clinical officer. He added that, the postmortem report could not be relied upon because even the witnesses who identified the body of the deceased to the clinical officer, one Restituta Gervas and Gesela Geraz were not called to testify on how they recognized the deceased. The learned counsel insisted that, it is not clear whether the person mentioned in the charge is the one who was identified by those witnesses. This, he said, is because the summary of the postmortem report is talking about some parts of the body and bones, the skull bone found in the forest but it is not clear that those bones were of the deceased; and, there was no DNA test to link the identifying witnesses and the deceased. Therefore, he said, it was not proper for the trial Judge to rely on this evidence to convict the first appellant. Mr. Nasimire insisted that, the charge against the first appellant was not proved as required by the law because even the motorcycle allegedly stolen from the deceased was not identified by its registration number. Besides, it was said that the clothes of the deceased were found at the scene of crime, but he was not wearing them; hence, a possibility of them belonging to anybody. Worse enough, the one who identified those clothes did not prove that they belonged to the deceased. Moreover, he said, since there was no investigator in this case who could link the appellants and the deceased, the evidence on record cannot be taken conclusively that it established the offence of murder against the first appellant. He thus urged us to allow the appeal. Upon taking the floor, Mr. Kitale submitted, as well, that the charge against the second appellant was not proved beyond reasonable doubt. He referred us to page 143 of the record of appeal where the trial Judge analysed the elements of murder and went further to state that the death of the deceased was not substantially disputed. He faulted the trial Judge for such a finding because, death was among the disputed facts as it can be seen on page 26 of the record of appeal. Thus, he argued, it was incumbent upon the prosecution to prove it through concrete evidence with more examination of the bones found at the scene of crime, instead of relying on a weak postmortem report. He reiterated the submission by the counsel for the first appellant that, the two identifying witnesses mentioned in the postmortem report were material witnesses but the prosecution failed to call them. He added that, the postmortem report indicated that at the scene of crime there were parts of human body, but the prosecution evidence did not disclose which parts of the body and whether they were of the deceased. According to him, the omission was fatal as it led to unjustified conviction of the second appellant. 9 As regards another element of murder that the death was unlawful, Mr. Kitale submitted that, the trial court wrongly relied on the cautioned and extra judicial statements of the second appellant. Starting with the cautioned statement of the second appellant, he referred us to page 106 of the record of appeal where it was indicated that the said statement was recorded on 11th April, 2015 from 18:00 hours to 19:00 hours, while in his defence, the second appellant testified that he was arrested at 8:00 hours. That being then case, Mr. Kitale argued that the second appellant's cautioned statement was recorded out of time and urged us to expunge it from the record. Regarding the element that the second appellant had malice in committing the offence, Mr. Kitale submitted that malice was not proved because even the motorcycle alleged to be stolen from the deceased or its registration card were not listed during committal proceedings and tendered in court as evidence during trial. Surprisingly, even the person allegedly bought it was not called to testify. He added that the motorcycle was only mentioned in the second appellant's cautioned statement which was recorded out of time. Therefore, he submitted further that the prosecution failed to prove malice on part of the second appellant. 10 According to him, the evidence on record does not show who among the two appellants caused death of the deceased taking into consideration that all along the prosecution witnesses PW1 and PW2 kept on referring the suspect in their testimonies, but it was not known who was that suspect. He thus prayed for the appeal to be allowed. In reply, Mr. Ng'hoboko opposed the appeal and submitted that the prosecution evidence was sufficient to ground the appellants' convictions. Further that, the prosecution had to prove that Gervas Gerus died and the death was unnatural, which, they proved. He went on to state that PW2 went to the forest, he saw the body and the clothes of the deceased which he identified. Therefore, there was no need of postmortem report and DNA to prove that the deceased was Gervas Gerus. He cited the case of Mayunga Mwenelwa v. Republic [2024] TZCA 605 (19 July 2024), where identification of the deceased was done through his clothes to prove that, it was him. He urged us to consider the evidence of PW2 and the fact that in the extra judicial statements of the appellants it was stated that, they used the shirt of the deceased to kill him. This, he said, explains why clothes were found just beside the deceased's body parts. l i Regarding whether the death of Gervas was unnatural, Mr. Ng'hoboko referred us to the cautioned and extra judicial statements of the appellants. However, he agreed that the cautioned statements of the appellants were recorded out of time and urged us to expunge them from the record. He maintained that although retracted, the extra judicial statements of the appellants were voluntarily made before the Ward Executive Officer (WEO) (PW3) who proved that the first appellant confessed that they killed the deceased. He acknowledged that there was a difference of the stated scene of death in the evidence of PW3, extra judicial statement and the charge. Also, there was inconsistences of the place where murder took place as per the evidence of PW2, PW4 and extra judicial statements. Nonetheless, he urged us to make a finding that the contradictions are minor as they did not go to the root of the case. Mr. Ng'hoboko submitted in respect of malice that, the murderers had malice because they stubbed the deceased after taking him to the forest. In addition, he said that the deceased was killed by the appellants as the second appellant confessed to the Police and took them to the scene of crime while refering the evidence of PW4. Therefore, he urged us to find that the prosecution proved the case against the appellants beyond reasonable doubt and dismiss the appeal. 12 Mr. Nasimire made a very brief rejoinder insisting that, the body of the deceased was not identified since it was already decomposed. Adding that, PW2 identified only the clothes which he (PW2) however, said could not be recognized. Regarding WEO who recorded extra judicial statements, Mr. Nasimire urged us to find that, the same were not properly recorded. It was his argument that, although WEO is a justice of piece, he ought to have recorded the statements while at the court premises, which is not the case herein. He cited the case of Jackson Protas v. Republic [2021] TZCA 705 (29 Nov 2021); where the Court stated that justice of piece must indicate in which court did he record the statement. He urged us to expunge from record the extra judicial statement of the first appellant and allow the appeal. Mr. Kaitale submitted that the alleged oral confession of the second appellant was not reduced into writing and the second appellant denied to have made it. In the circumstances, such evidence needed corroboration from another witness who heard him confessing, but there was none. He thus urged us to allow the appeal and set the appellants free. Having heard the parties' submissions and carefully gone through the record of appeal, the main issue calling for our determination is whether the 13 charge of murder against the appellants was proved beyond reasonable doubt. In criminal cases like the one at hand, the burden of proof lies on the prosecution. It is settled that an accused person cannot be convicted due to his weak defence but on strong prosecution evidence against him. Among the elements of the offence of murder which the prosecution was required to prove was that Gervas Gerus died. The evidence relied upon by the High Court in establishing this element was that of PW1 who testified that, his brother went missing on 1s t day of April, 2015 and his disappearance was reported to the Police Station at Geita on 2n d April, 2015. On 11th April, 2015 the Police received information about a suspect theft and homicide at Shilabela area. According to PW4 they went there and found the second appellant whom when they interrogated, he confessed to have killed a motorcycle rider. Part of her evidence reads: "...we interrogated the accused, it is the second accused Renatus Simon. He admitted to have formally killed a bodaboda driver ..., we have received an information on 1.4.2015 that bodaboda driver was missing. ...He led us to where his fellows were near the forest a t a dum ping site in the bush. The 1st accused started running upon seeing Police Officers. We arrested him and he admitted and narrated the same story as the 2n d accused. ... The 14 1st and 2n d accused led us to the crime scene where they had killed a person and robbed him a motorcycle. We entered the bush, found a piece o f leg, one white rubber, a shirt and a trouser (jeans) which was torn , a knife used to stab the deceased, a piece o f rope they had tied him. " [Emphasis added]. As the excerpt above reveals, no one saw the deceased while being killed. His alleged death was associated with his disappearance as testified by PW1. Although it was testified by PW4 that the appellants confessed to have killed a motorcycle rider, they never mentioned that they killed Gervas Gerus. As it can be observed from the evidence of PW4 as quoted above, the appellants led them to the crime scene and they found a piece of leg, one while rubber, a shirt and trousers (jeans) which was torn, a knife used to stab the deceased, a piece of rope they used to tie him. It is also on record that at the scene of crime, the prosecution witnesses found the body of the deceased decomposed and its head was severed from the trunk. According to PW1, he identified the deceased's body by the clothes found at the scene of crime to be of the deceased. However, when cross examined PW1 stated on page 27 of the record of appeal as follows: 7 didn't tell the court the type o f attire my brother wore on the incident day 01/4/2015 he disappeared. The clothes were aside the dead body remains. No sample for DNA was ever taken from me in order to match with the remains o f the body." It is quite clear from the above excerpt that, although the High Court was satisfied that PW1 identified the body found at the scene of crime to be of the deceased Gervas Gerus, his evidence only associated the deceased with the clothes found at the scene of crime which he did not prove to be of the deceased as he stated that, there was no scientific proof to that effect and he led no evidence showing special proof or mark, that they were, indeed, the clothes of the deceased. We, as well, note that PW2 who also went to the scene of crime on the material day stated that, the clothes found at the scene of crime were dilapidated as it can be observed on page 27 of the record of appeal. The question that follows which remained unanswered is, how then PW1 was able to identify those clothes? This creates doubt whether it is true that he identified them. That aside, in her testimony on page 32 of the record of appeal, PW4 stated that they collected exhibits and parts of the deceased body at the scene of crime and took them to the mortuary. This means that, there was no complete body of the deceased. The Clinical Officer (PW5) who conducted postmortem examination of 16 human body parts found at the scene of crime indicated in the postmortem examination report (exhibit P5) that, the body of the deceased was identified to her by Restituta Gervas and Gesela Geraz. However, the duo was not called as witnesses to testify on how they identified the pieces found at the scene of crime to be of Gervas Gerus. Not only that, but also, the relationship between the identifying witnesses and the deceased was not stated and / or whether the DNA test was conducted to determine the said relationship. In the circumstances, with respect, we are unable to agree with the trial court that, the prosecution proved to the required standard that the pieces of human body found at the scene of crime were of Gervas Gerus. We say so because, in our considered opinion, disappearance of a person in itself does not amount to death. We are equally not convinced that, the appellants' cautioned statements could be relied upon to prove that the appellants killed Gervas Gerus, the deceased. The counsel for both sides submitted, and we agree, that the appellants' cautioned statements were recorded out of time without any extension sought and granted. They thus urged us to expunge them from the record, which we accordingly do. We note that in the extra judicial statement of the first appellant, the deceased was not mentioned by name, so it cannot be said with certainty 17 that the "dereva wa pikipiki "referred to therein was Gervas Gerus. Suffices here to state that, it was incumbent upon the prosecution to prove that Gervas Gerus mentioned in the charge as the deceased, was the one referred to by all the prosecution witnesses and exhibits tendered during trial. Short of that, the charge against the appellants remains unproven. We, as well, note that according to the charge, the deceased Gervas Gerus was murdered at Bugulula Forest (the scene of crime). However, the prosecution witnesses gave a varied versions of the scene of crime. According to PW2, the scene of crime was along the road to Bugulula at Kamhonga junction whereas, PW3 mentioned a junction towards Nyela village to be the scene of crime. In her testimony, PW4 referred the scene of crime as the bush and PW5 said they went to the bush where in between there was a place written Rubonde at a road to Mkone. Therefore, it was not clear where exactly the offence was committed and this contradiction, which we find that it was not minor, was not resolved. Following the highlighted discrepancies in the prosecution evidence and the fact that the deceased was found at the scene of crime, be it at any of the places mentioned above, it was not connected to appellants. Thus, we find and hold that the prosecution case was not proved beyond 18 reasonable doubt. Consequently, we allow the appeal, quash convictions and set aside the appellants' sentences. The appellants be released from custody immediately unless they are lawfully held for other cause. 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 27th day of February, 2026 in the presence of the Appellants in person, Mr. Prince Massawe, learned State Attorney for the Respondent/Republic and Ms. Ladislaus Msuba, Court Clerk; is hereby certified as a true copy of the original. 19