Kelvin Benedicto Simon vs Republic (Criminal Appeal No 259 of 2023) [2026] TZCA 136 (25 February 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA ( CORAM: LILA. J.A.. MAIGE. J.A. And MANSOOR. J.A.^ CRIMINAL APPEAL NO 259 OF 2023 KELVIN BENEDICTO SIMON............................................... APPELLANT VERSUS THE REPUBLIC...............................................................RESPONDENT (Appeal from the judgment of the High Court of Tanzania, at Shinyanga) (Matuma, J.) dated the 8th day of March/ 2023 in Criminal Session No. 2 of 2022 JUDGMENT OF THE COURT 12th & 25th February, 2026 MAIGE J.A.: Contrary to section 196 of the Penal Code, the appellant was arraigned, in the High Court of Tanzania at Shinyanga, with the offence of murder. The information asserted that on 20th November, 2019 at Tinde Area within Shinyanga District in Shinyanga Region, the appellant murdered Bernard s/o Raphael Luhende (the deceased). The factual materials underpinning the back ground of this appeal is easy to narrate. Robert Mhagama (PW3) testified that, on the material i

date at or about 00:00 hours, while returning home with his fellow from a football screening at the residence of their friend, they saw a person lying on the ground, covered in blood and screaming. Found besides were a wallet, mobile phone and TZS 1000.00. He, therefore, reported the matter to the Sungusungu Commander, one Michael Gabriel (PW4) who, soon thereafter, arrived at the crime scene only to find that, that person had already passed away. He thus raised an alarm in response of which, some people gathered at the scene of the crime. Insp. Richard Kapongo (PW2) having been informed of the incident, he visited the crime scene with his fellow police officers. He inspected the wallet and discovered therein NMB ATM card, a Chinese Bank Card and NIDA cards, all of which bearing the name of the appellant and seized them as per the certificate of seizure (exhibit P2). The wallet and the identity cards were admitted in evidence and marked collectively as exhibit P3. On 27th November, 2019, Dr. Richard Mwikwabe conducted a postmortem examination of the body of the deceased, according to which, the cause of death was established to be head injury (exhibit PI). 2

Juma Nfuko Luhende (PW7), the deceased's elder brother, having been informed of the incident at around 3:00 hours, he went at the crime scene and identified the dead body to be that of his young brother who was a bodaboda operator. The witness testified that on the material date, the deceased departed riding a motorcycle make Haojue with registration number MC 448 BCH red in color; he further confirmed that the deceased was the registered owner and that he held the corresponding registration card. He produced the relevant card, which was admitted as exhibit P7. On 1s t December, 2019, he testified further, he was called at Shinyanga where he identified the respective motorcycle. PW8 (A/Insp. Erick Kimaro) averred that on 23r d November, 2019, he visited the crime scene and took possession of the exhibit from PW2. Utilizing the appellant's identity cards, he successfully apprehended the appellant at Nguzonane Market on 30th November, 2019. Upon interrogation, the appellant made an oral confession of guilt and, on the next day, he led PW8 to the location where the motorcycle was hidden. Under the supervision of Insp. Daniel Malimba (PW5), the appellant's premises situate at Banduka Street in the Ndala Area was searched in 3

the presence of his landlord and street chairperson one Pius Mathias Shilinde (PW6). During the search which was conducted pursuant to a search order (exhibit p4), a red motorcycle bearing registration number MC 448 BCH was recovered. Upon inspection, a broken toothed iron hammer was discovered on the motorcycle. Both the motorcycle and the hammer were seized and subsequently tendered as physical exhibits (exhibits P6 and P5, respectively). In his defense, the appellant testified that on 16th November, 2019, he confronted PW8 over suspected infidelity with his wife at her business premises, leading to a fight, during which, he was arrested. Concerning the identity cards allegedly to have been recovered at the scene crime, it was his defence that, the same got lost during the fighting. He denied making oral confession before PW8. Upon the conclusion of a full trial, the learned trial Judge found the appellant guilty as charged, convicted him accordingly, and sentenced him to death by hanging. Being aggrieved by the conviction and sentence, the appellant instituted the current appeal. In the memorandum of appeal lodged on 15th September 2023, the appellant raised the following grounds of appeal: 4

1. That the Appellant was convicted on a defective charge.
2. That the trialJudge erred in convicting the appellant contrary to the provisions o f section 192(1), (2), (3), (4), and (5) o f the CPA.
3. That the trial Judge wrongly entered a plea o f not guilty into the court records without giving the appellant a chance to plead thereto.
4. That the trial Judge erred in law and fact by admitting exhibits P3 collectively and Exhibit P4 in evidence whilst they were not read out in court.
5. That the trial Judge grossly erred in law and fact by convicting and sentencing the appellant on the weakness o f his defense. On 13th August 2024, the appellant lodged supplementary memorandum of appeal raising the following ground of appeal:
6. That exh. P66 (Motorcycle) was not properly identified hence the exhibit was first tendered by PW5 before being identified by the complainant (PW7). This exhibit deserves to be expunged and upon being expunged the exh. P3, P4 and P6 no any cogent evidence will remain to sustain conviction. When the appeal was called on for hearing, Ms. Gloria Lucius Ikanda, learned counsel, appeared for the appellant, whereas Ms. Immaculata Mapunda, learned Senior State Attorney who teamed up 5

with Mr. Satuninus Kamala learned Senior State Attorney, appeared for the respondent Republic. Be it noted, at the commencement of the hearing, Ms. Ikanda abandoned all the grounds in both the memoranda save the fourth ground in the substantive memorandum of appeal. On top of that, she added a new ground to read: "exhibit P6 was not properly identified". We shall treat in this judgment, the fourth ground in the substantive memorandum of appeal as the first ground and the additional ground as the second ground. In the address of the first ground, Ms. Ikanda submitted that, because their contents were not read after being cleared for admission, exhibits P3 and P4 were irregularly admitted in evidence and ought to be expunged from the record. Once the said documents are expunged, she submitted, there will be nothing to connect the appellant with the identity cards found at the crime scene. Regarding the second ground, she submitted that, the motorcycle (exhibit PI) was insufficiently identified. She argued that exhibit P7 was improperly tendered by PW5 before being identified by the complainant. She contended further the identification based solely on registration number, a tank and engine color was unreliable, as these do not 6

constitute peculiar marks. She specifically noted that registration numbers can be erroneously listed and that color of a tank or engine is a common feature found on any motorcycle. In her humble opinion, the motorcycle should have been identified by chassis number. She prayed, therefore, that exhibit P6 be expunged from the record. Once exhibits P6, P3 and P4 are expunged, she submitted, there would remain nothing on the record to link the appellant with the offence. In response, Ms. Mapunda conceded in respect to the first ground that, indeed exhibit P3 and P4 were not read out after they had been cleared for admission and that was an incurable irregularity whose legal effect is to have the exhibits excluded from the evidence. She, however, did not agree with Ms. Ikanda that there is no other evidence besides those exhibits which can link the appellant with identity cards found at the scene. Aside from the testimonial evidence of PW2, PW3 and PW4, there is documentary evidence in exhibit P3 which establishes that the identity cards were discovered at the scene of the crime. With respect to the second ground, it was Ms. Mapunda' submission that exhibit P6 was sufficiently identified by a close relative of the deceased (PW7) who produced the relevant registration card. 7

Besides, she submitted, the appellant does not deny in evidence to have been found in possession of the same. His concern is on the manner in which they were identified. She further contended that identification by registration number and color so long as it was substantiated by registration card, was enough. In her contention, therefore, the remaining evidence is sufficient to link the appellant with the offence by way of the doctrine of recent possession. We shall start with the first ground as to admissibility of the identity cards recovered at the crime scene (exhibit P3) and the search order in relation to seizure of the motorcycle (exhibit P4). It is clear from the record and counsel are in agreement that, they were not read out after being cleared for admission as the law requires. The omission, we have said numerously and consistently, is fatal as it denies the accused an opportunity to adequately comprehend the accusation he is facing. See for instance, Ally Bakari @ Pili Bakari v. R [1992] T.L.R. 10 and John Mghandi Ndovo v. R, Criminal Appeal No. 352 of 2018 (unreported). On that account, therefore, we allow the first ground of appeal and exclude exhibits P3 and P4 from the record. 8

Before we shift to the second ground we find it desirable to make a brief remark on the contention for the appellant that with the exclusion of the respective exhibits, there would remain nothing to link the appellant with the offence. We understand that, what made the prosecution to link the appellant with the offence was the fact that his identity cards were, soon after the incident, found aside the deceased's body and subsequently, a motorcycle the deceased was riding soon before his death, was found in his possession. Ms. Ikanda has submitted that because the exhibits have been excluded from evidence, their existence has not been legally proved. However, Ms. Mapunda would wish us to hold otherwise because, the certificate seizing the same (exhibit P2) is still in evidence. We have taken time to examine the contention. With respect, we tend to agree with the learned State Attorney that despite the exclusion of exhibit P3 from evidence, still there is ample evidence on the record to prove that the respective identity cards were found at the crime scene and they belong to the appellant. We have three reasons to support this view. One, the inspection of the wallet from which the items were recovered, was made in the presence of PW3 and PW4. These witnesses 9

confirmed that the identity cards were found to be in the name of the appellant. Two, as rightly submitted by Ms. Mapunda, there is evidence in exhibit P2 to establish that the respective identity cards were seized from the crime scene. Three and most importantly, even the appellant expressly admits that the respective identity cards belong to him. His line of defence is that, the same got lost as he was fighting with PW8. We, therefore, agree with Ms. Mapunda, that despite the exclusion of exhibit P3 from evidence, there is irrefutable evidence that the appellant's identity cards were found on the material date at the scene of the crime. On the same point, it was submitted that since the search order pursuant to which the motorcycle was seized has been excluded from the evidence, there is nothing to link the appellant with it. With respect, we find no merit on this contention because, aside from the search order, there is independent oral account from PW6 and PW7 who witnessed the search and recovery of the same being legally conducted by PW5. In law, such evidence, if credible, are sufficient to link the appellant with the exhibit. Dealing with more or similar issue, the Court observed in Rubeni Lazaro Mafuta @ Mbunde and Others v. R

(Consolidated Criminal Appeals Nos. 503 of 2018, 240 of 2020 and 242 of 2020) [2021] TZCA 289, TANZLII as follows: "For avoidance o f doubt, we agree with Ms. Njoro that the Certificate o f Seizure for the two elephant tusks appearing at p. 63 o f the record o f appeai and the Certificate o f Valuation o f the trophies appearing at p. 73 o f the record which were admitted in evidence as exhibit P2 and P6, respectively must be expunged from the record because they were not read out laud in court after their admission. We agree and expunge them. We also agree with her that after expunging them, the testimony o f PW1, PW2and PW3 suffice to implicate the fourth appellant to the hiit- see also: Huang Qin and Xu Fujie v. Republic, Criminal Appeal No. 173 o f 2018 and Anania Clavery Betela v. Republic, Criminal Appeal No. 355 o f 2017 and Zheng Zhi Chao v. The Director of Public Prosecutions, Criminal Appeal No. 506 o f 2019 (all unreported)." We now proceed with the second ground as to the adentification of the motorcycle (exhibit P6). It was produced by PW5, the police officer who seized it. He identified it by its registration number, the tank

color and engine color. Through similar identities, the motorcycle was further identified by PW7, the appellant's close relative. Importantly, PW7 produced the motorcycle registration card (exhibit P7) with similar particulars as testified upon by PW5. Ms. Ikanda submits that, the respective marks would, in the absence of Chassis number, not suffice to positively identify it. In Mussa Abdallah Hamad @Dogo Nyabusa v. R (Criminal Appeal No 265 of 2023) [2026] TZCA 59, TANZLII, however, this Court accepted that a motorcycle can, in fit cases, be identified by registration number and insisted that "/f is never a necessary requirement to identify a motorcycle by its chassis number In the matter at hand, despite the exclusion of search order on the basis of which the motorcycle was seized, the testimonial evidence of PW5 and PW8 establishes that a motorcycle matching the description was seized from the appellant. This seizure occurred in the presence of PW6 and PW7, the former being the appellant's own landlord and street chairman. This evidence has not been shaken by the appellant by way of cross examination. Neither in his testimony in defence. In assessing the credibility and reliability of the prosecution witnesses in this respect,

the trial court shared the following observation that we find to be entirely accurate: "In the present case the accused admitted ownership o f the wallet and identities found to the crime scene but denied the offence and the fact that the deceased's motorcycle was found in his possession. This calls for determination o f credibility o f witnesses. Out o f the eight witnesses the accused suggested that he had grudges with only PW8. He had no any suggestive facts o f grudges or hostility with the rest o f the prosecution witnesses. In that regard the credibility o f those witnesses in regard to the fact that the accused's identity cards were on the crime scene that night is unquestionable. The evidence given by these witness is credible and reliable. PW6 the street chairman o f Banduka Street also gave credible and reliable evidence relating to search and seizure o f the motorcycle from the accused. In those circumstances, and considering the fact that PW7 immediately disclosed that the deceased was, soon before the incident, operating a motorcycle with a registration number matching the card in 13

his possession, and insofar as this same motorcycle was later recovered from the individual whose identity cards were found at the scene, we are satisfied that the exhibit was sufficiently identified. In our opinion, therefore, this appeal is devoid of any merit and it is hereby dismissed. DATED at SHINYANGA this 24th this 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 25th day of February, 2026 in the presence of the Appellant in person by virtual Court, Ms. Gloria Ikanda, learned counsel for the Appellant, Ms. Gloria Ndondi, learned State Attorney for the Respondent and Mr. Leopord Mabugo, Court Clerk; is hereby certified as a true copy of the original. D. R. 0 DEPUTY REGISTRAR COURT OF APPEAL 14