Nyamchama Mgendi @ Mokiri vs Republic (Criminal Appeal No. 330 of 2023) [2026] TZCA 164 (27 February 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: NDIKA, J.A.. FIKIRINI. J.A.. And ISMAIL. J.A.) CRIMINAL APPEAL NO. 330 OF 2023 NYAMCHAMA MGENDI @ M OKIRI .............................................. APPELLANT VERSUS THE REPUBLIC...................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma) (Komba. J.) dated the 13th day of February 2023 in Criminal Sessions Case No. 35 of 2022 JUDGMENT OF THE COURT 20th & 27th February, 2026 NDIKA, J.A.: The appellant, Nyamchama Mgendi, also known as Mokiri, was convicted by the High Court of Tanzania at Musoma for murdering Sprina Paul Otita, his grandmother-in-law, on 7th April 2021 at Gantamome village in Serengeti District, Mara Region. Protesting his innocence, he now appeals to this Court, assailing the legality and reliability of extrajudicial and cautioned statements (exhibits P4 and P5), which constituted the only basis of the conviction. The prosecution outlined that on the evening of 7th April 2021, the deceased was with her partner, Rong'ola Marwa (PW3), until 16:00 hours when they parted company. The deceased visited a local brew pub operated by her acquaintance, Nyabebe. Unbeknown to PW3, that was the final occasion he beheld her alive, as the subsequent morning he discovered her lifeless body at the pub, exhibiting evident lacerations on the forehead and the neck. The incident was reported to the police, who subsequently arrived at the scene and coordinated an autopsy. The postmortem examination report (exhibit P2) indicates that the deceased experienced a violent death, characterised by several lacerations to the neck and frontal bone, as well as a severed jugular vein. PW1 Felix Daniel Ginene, a justice of the peace, informed the trial court that the appellant voluntarily provided an extrajudicial statement (exhibit P3) to him, confessing to the crime on 12th April 2021. Furthermore, Police Officer No. G.5805 Corporal Christopher presented a cautioned statement from the appellant dated 8th April 2021, in which the appellant, yet again, confessed to the homicide. Mr. Cosmas Tuthuru, learned counsel, presented two grounds of appeal. Initially, he argued that the trial court misapplied the law by depending on exhibit P3 and PW4, asserting that they were irregularly recorded. Starting with exhibit P4, he contended that, since the appellant was unable to read the record, it was incumbent that it had to comply with the requirement under section 58 (4) (a) to (e) of the Criminal Procedure Act, Cap. 20 R.E. 2023, henceforth "the CPA", requiring certification by the appellant and the police interviewer. He posited that the certificate as shown on page 57 of the record of appeal was inadequate. It ought to have verified that the statement had been read over and found to be correct and that the suspect had nothing to correct or alter or add. Citing Ramadhani Mashaka v. Republic [2016] T7CA 259 and Chamuriho Kirenge @ Chamuriho Julius v. Republic [2022] T7CA 98, he implored us to find the statement incurably defective. Replying, Mr. Ngowi began by underlying that the impugned cautioned statement was admitted into evidence without any objection from the appellant. While agreeing with his learned friend that section 58 (4) (a) to (e) of the CPA is mandatory and that it cannot be glossed over, he contended that exhibit P4 is fully compliant. Initially, we observe that section 58 (4) (a) to (e) of the CPA stipulates the manner of recording a statement of a suspect who is unable or unwilling to read the record as follows: "(4) Where the person who is interviewed by a police officer is unable to read the record o f the interview or refuses to read, or appears to the police officer not to read the record when it is 3 shown to him in accordance with subsection (3) the police officer shail- (a) read the record to him ; or cause the record to be read to him; (b) ask him whether he would like to correct or add anything to the record; (c) permit him to correct, alter or add to the recordor make any corrections, alterations or additions to the record that he requests the police officer to make; (d) ask him to sign the certificate at the end o f the record; and (e) certify under his hand, at the end o f the record, what he has done in pursuance o f this subsection." The above provision requires the police officer interviewing a person who cannot read the record of the interview to read it to them, ask if they want to correct or add anything, or allow them to correct, alter, or add to the record. Thereafter, the officer must ask the suspect to sign the certificate at the end of the record followed by his certification of the actions done under that provision. We entirely agree with the learned counsel that, as expounded in Chamuriho Kirenge {supra), t heabove requirement is mandatory and that courts of law have a statutory duty to ensure due compliance. In the instant case, we note on page 57 of the record of appeal, that at the foot of the statement, the appellant noted in Kiswahili in his own handwriting that "Mimi Nyachama nasibitisha maelezo yangu yapo sahihi kabisa na hakuna kilichoongezeka. Nyachama.," meaning that % Nyachama, confirm that my statement is completely accurate, and nothing has been added. "He then appended his thumbprint. Thereafter, the recording officer stated that "Mimi askari na. G.5805 D/C Christoper nathibitisha kuandika maelezo ya Nyamchama s/o Mgendi @ Mokiri kuhusiana na tukio hili la mauaji huko Kijiji cha Gantamome tarafa ya Ngoreme bila ya kuongeza wala kupunguza maelezo yake chini ya kifungu cha 57 (3) CPA ya 1985." That text means that % Police Officer No. G.5805 D/C Christoper confirm to have recorded the statement o f Nyamchama s/o Mgendi @ Mokiri regarding the murder in Gantamome village, Ngoreme Division without adding or subtracting from it anything under section 57 (3) CPA o f 1985." Mr. Tuthuru asserted that the certificate should have confirmed that the statement was read aloud, deemed accurate, and that the suspect had no corrections, alterations, or additions to make. His formulation appears to be ideal; yet we believe that the contested certification conveys the same meaning. The most significant aspect for us is that the 5 appellant seemed content with the statement's veracity. In the premises, we deem it largely compliant with the law. Moving to the extrajudicial statement (exhibit P3), Mr. Tuthuru poked holes in the statement claiming that it violated the provisions of the Chief Justice's Guide for Justices of the Peace on recording of confessions of persons or witnesses in the custody of the police. Initially, he argued that the statement was irregularly recorded after the appellant was presented to the justice of the peace under police escort without any letter from the Officer-in-Charge of Police indicating that he wished to make a voluntary statement to a magistrate or a justice of the peace. On this contention, we agree with the learned State Attorney that bearing an introductory letter from the relevant police authority is laudable customary practice but not a mandatory requirement. This is mainly because guideline concerned is couched that the suspect "may be brought to the office o f a justice o f the peace under police escort and usually bearing a letter from the Officer-in-Charge/ Police. "The use of the phrase "usually bearing a letter" does not connote an imperative or imperious requirement. Secondly, Mr. Tuthuru contended that the justice of the peace failed or neglected to require the appellant to sign or append his right-hand 6 thumbprint to the statement to confirm that he was making the statement voluntarily. Indeed, the Guide requires under Item 9 that the suspect wishing to make a voluntary statement must state so expressly and that the justice of the peace must record that fact in the suspect's exact words and have him sign or append his right-hand thumbprint to the statement to signify his voluntariness. As we stated in Peter Charles Makupila @ Askofu v. Republic [2021] T7CA 197, that is the only part of the statement that the suspect must sign. However, we are aware of cases where some suspects have been made to sign at the end of the statement as well, as a matter of practice. The intrinsic value of any extrajudicial statement is in its unequivocal voluntariness; thus, the lack of the suspect's properly signed declaration of voluntariness renders the statement devoid of value. We respectfully disagree with Mr. Ngowi's assertion that the appellant's thumbprint at the conclusion of the statement compensates for the identified deficiency. It is obvious that the declaration of voluntariness must be obtained and signed prior to the earnest recording of a statement. The statement, included on pages 51 to 54 of the appeal record, lacks a written declaration by the appellant affirming his voluntariness. Consequently, we uphold Mr. Tuthuru's assertion that the extrajudicial statement in issue is both invalid and unreliable. Mr. Tuthuru's argument regarding the second ground, that the alleged murder was not proven beyond a reasonable doubt, was predicated on his anticipation that exhibits P3 and P4 would be considered invalid. As a result, he did not adequately assess whether exhibit P4, independently or in combination with the other material, can support the allegation against the appellant. Mr. Ngowi again failed to specifically address that problem for the respondent. We acknowledge that although exhibit P4 was accepted without objection from the appellant, his denial of having killed the deceased during his defence testimony must be interpreted as a repudiation of the cautioned statement. Consequently, the trial court could only have convicted him based on that confession if it was corroborated by independent evidence or if it recognised the inherent risks of relying on such an uncorroborated confession and was thoroughly convinced of its authenticity - see Hatibu Gandhi & Others v. Republic [1996] T.L.R. 12; Mboje Mawe & Others v. Republic [2011] TZCA 136; and Mashimba Dotto @ Lukubanija v. Republic [2014] TZCA 271. Indeed, in Ali Salehe Msutu v. Republic [1980] T.L.R. 1 at page 4, this Court, referencing Tuwamoi v. Uganda [1967] EA 84, noted that: "It has long been an established rule o f practice in East Africaincluding this country, that a 8 repudiated confession, though as a matter o f law may support a conviction, generally requires as a matter o f prudence corroboration as is normally the case where a confession is retracted." Furthermore, when validating a repudiated or retracted confession is required, independent evidence must corroborate, verify, and strengthen the confession's essential details. Corroborative evidence is not necessary to validate every aspect of the confession, but rather its fundamental nature - refer to, for example, Fredy Jason Shelela v. Republic [2024] TZCA 27; and Director of Public Prosecutions v. Jilala Mahembo Jihusa [2024] TZCA 38. With the above perspective in mind, we have examined the confession in issue. Briefly, it is evident from the confession that the appellant asserted that, while wielding a machete as he was returning home, he encountered the deceased on the day of the incident. Unexpectedly, the deceased began hurling invectives at him. He swiftly became enraged and struck her in the forehead with the machete. She collapsed, at which point he confronted her and administered an almost decapitating cut on her neck. He stated further that he disappeared after the killing as he feared a reprisal since he heard certain persons pointing an accusing finger at him. Around midday on the following day, a relative escorted him to Majimoto police station for surrender. The above tale is materially corroborated by the postmortem examination report (exhibit P2). It indicates that the deceased experienced a violent death, characterised by several lacerations to the frontal bone and the neck resulting in severed jugular vein. These cuts must be those the appellant admitted in his statement having inflicted on the deceased. Furthermore, the narrative about the manner of his surrender to the police was narrated by PW3. In his defence evidence, shown on page 40, the appellant too repeated the detail that he surrendered to the police after certain people implicated him in the homicide. On this basis, we are convinced that the medical evidence along with PW2's testimony and the appellant's own admission during his testimony on his surrender substantiated his confession that he killed the deceased. We now enquire whether the act constituted murder. The learned trial judge appropriately cited section 200 of the Penal Code, Cap. 16 R.E. 2023, as well as the often-referenced case of Enock Kipela v. The Republic [1999] TZCA 9, which delineates the conditions under which malice aforethought may be inferred. The appellant wielded a machete, a 10 lethal weapon, with which he hit the deceased on her forehead, a vulnerable part of the body. He thereafter delivered a nearly decapitating strike to her neck, cutting off the jugular vein. The deceased died from profuse haemorrhaging. We believe that the trial court was justified in concluding from the totality of the circumstances that the homicide was perpetrated with malice aforethought. We see no grounds to contest this conclusion. We ultimately find no substance in the appeal, which we hereby dismiss in its entirety. DATED at MUSOMA this 26th day of February, 2026. G. A. M. NDIKA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Judgment delivered this 27th day of February, 2026 in the presence of the appellant in person, via video link from Musoma Prison and Mr. John Samwel Kivuyo, learned State Attorney for the respondent/Republic and Mr. Shabani Kanyai, Court Clerk; is hereby certified as a true copy of the original. 0. H. KINGWELE DEPUTY REGISTRAR COURT OF APPEAL