Marwa Matinde Wambura @ Samwel vs Republic (Criminal Appeal No. 828 of 2023) [2025] TZCA 1250 (10 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: WAMBALI. J.A.. KENTE J.A. and MANSOOR. J.A^ CRIMINAL APPEAL NO. 828 OF 2023 MARWA MATINDE WAMBURA @ SAMWEL.................................. APPELLANT VERSUS THE REPUBLIC........................................................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Kakolaki. J.^ dated the 03rd day of April, 2023 in Criminal Sessions Case No. 235 of 2019 JUDGMENT OF THE COURT IS?1March & lf f h December, 2025 MANSOOR. J.A.: On 03rd April, 2023, the appellant, Marwa Matinde Wambura @ Samwel was convicted by the High Court of Tanzania at Dar es Salaam for the offence of Manslaughter contrary to section 195 of the Penal Code, Cap 16. He was, in terms of section 198 of the Penal Code, sentenced to serve eight (8) years in prison. The appellant was aggrieved by the conviction and sentence, thus, he filed the present appeal raising fifteen (15) grounds. i At the hearing, the appellant had the representation of M r. Killey Mwitasi, learned counsel, who substituted the grounds of appeal to two, as follows: 1. The trial Judge misdirected himselfin fact and law for failing to properly analyse the evidence/testimony tendered in court hence arriving at erroneous conclusion in convicting the appellant. 2. The trial Judge erred in law and in fact for deciding that the prosecution proved the case against the appellant beyond reasonable doubt. In order to adequately and fairly determine the substituted two grounds of appeal, it is imperative to have a brief background of the case as found on the record of appeal. Briefly, the prosecution case at trial was premised on the allegation that, the appellant unlawfully killed one Rashid Sadick Kashinde also known as Chidi, and that, the incident took place on 16th day of June, 2017 at 23:00hrs at Kibamba CCM Area within Ubungo District in Dar es Salaam Region. The unlawful killing allegedly happened when the appellant together with the deceased and their friends Deogratias Nicholaus Kitali, Zebedayo Josephat Kiria and Athanasy Augustino Kivenule @ Cheche were having a drink at the grocery owned and operated by one Joseph Aloyce Shayo located at Kibamba in Ubungo District, Dar es Salaam. While there, a fight erupted between one Athanasy Augustino Kivenule @ Cheche and the deceased but the tension eased, they stopped the fight and continued drinking. A while later, an argument erupted between the appellant and the deceased which led to a fight. The prosecution alleged that, it was the second fight between the appellant and the deceased that resulted into the deceased's injuries on the neck. The prosecution alleged further that, it was the appellant who had caused the death of the deceased as he stabbed him on the neck using a knife. The prosecution also alleged that, there were two eye witnesses who saw the appellant stabbing the deceased with a knife and also saw the deceased bleeding from the neck immediately after the fight. The prosecution alleged further that, after the fight and while injured and bleeding, the deceased went alone to Kibamba Police Station to report the incident, and that the Police at Kibamba refused to register the complaint and directed the deceased to report to Mbezi Police Station, far from the place of the occurrence of the crime. It was at Mbezi Police Station where the deceased was provided with a PF3 and 3 received the medical attention at Tumbi Hospital. He died the next morning while undergoing treatment. The autopsy confirmed that the cause of death was hypovolemic shock. Following investigations carried out by the police, the appellant was apprehended and arraigned in court facing the charge of Manslaughter. Before the trial court, the appellant pleaded not guilty to the charge read over to him, leading to trial. In order to bring home the guilt of the appellant, the prosecution paraded five witnesses and produced two exhibits, while the appellant gave his own defence under oath and also produced two exhibits. The prosecution brought Aloyce Shayo, the grocery owner as PW1, Deogratias Nicholaus Kitali as PW2, D/Sgt. Felix Sunday Sedrick as PW3, Dr. Muyovela, an Assistant Medical Officer as PW4 and Zebedayo Josephat Kiria as PW5. There was also a Post Mortem Report which was admitted as exhibit PI and a Sketch Map of the scene of crime admitted as exhibit P2. In his sworn defence, the appellant denied involvement, claiming he was not present at the scene on the date and time of the incident. He said, on 16th June, 2017 at around 21 hrs, on his way back home from a bar known as Highway Bar in Kibamba Area, he met a person 4 who appeared injured and was calling for help. He did not know the person but helped to take him to the Kibamba Police Station. He met that injured person near a Journalist College at Kibamba. He stated that at Kibamba Police Post, five police officers asked him to board a police vehicle with the injured person and they all went to Mbezi Police Station. The police at Mbezi Police Post, locked him in the cell and recorded his statement. He was kept in the police cell until 04th July, 2017, when he was arraigned in court for allegation of manslaughter. After the trial, he was found guilty of manslaughter, convicted and sentenced as stated hereinabove. At the trial, the appellant produced the statements of PW2 and PW5 recorded at the police on 18 June, 2017 and were admitted under section 154 of the Evidence Act, R: E 2019, and marked as exhibits D1 and D2, respectively. At the hearing of the appeal before the trial court, Mr. Mwitasi argued in support of the two grounds of appeal that, the appellant was implicated merely because he assisted the deceased, a person he did not know, by taking him to the police station. At the police station, he was kept under arrest for allegedly stabbing the deceased. 5 Attacking the judgement of the trial court when it relied on the testimonies of two key eye witnesses, i.e., PW2 and PW5, to found a conviction of the appellant, Mr. Mwitasi submitted that, the respective witnesses, who claimed to have witnessed the appellant stabbing the deceased were not reliable witnesses as their credibility was shaken after their oral testimonies before the trial court were contradicted by their previous statements recorded before the police. The learned counsel stated that, the initial statements of these two witnesses recorded before the police were explicit that, they did not see the appellant stabbing the deceased. This contradicted their oral testimony in the trial court. While in the trial court, they both said they saw the appellant stabbing the deceased on the neck using a knife, whereas, in their previous statement recorded before the police, they did not state to have witnessed the appellant stabbing the deceased with a knife, they only stated that, they saw the duo having a fight. Referring to the cases of Mohamed Paulo Mlale v. The Republic, Criminal Appeal No. 205 of 2011 (unreported) and Paschal Kiteu v. Republic (Criminal Appeal 12 of 2018) [2020] TZCA 384 (7 August 2020, TANZLII), M r. Mwitasi insisted that, these contradictions go to the root of the prosecution's case, rendering the testimony of PW2 and PW5 untrue, hence, unreliable. 6 The learned counsel contended further that, there were contradictions between the testimony of PW1 and PW2, in that, while PW1 claimed he was not present when the deceased and the appellant were fighting as he was inside his office tallying his day's sales, PW2 testified that, PW1 was present and had witnessed the fight. He submitted further that, there were contradictions between the testimony of PW1 and PW3 regarding the state of the scene of crime. He said, while PW1, the grocery owner, said, he had cleaned the scene immediately after the fight, PW3, the police officer who investigated the crime, testified that upon visiting the scene the next day, he found it covered in blood. Mr. Mwitasi submitted further that, the three prosecution witnesses i.e., PW1, PW2 and PW5 testified that, the deceased had a violent fight with an individual named Cheche, during which PW1 and PW5 intervened but they all did not say whether the deceased sustained injuries in the first fight with Cheche, nor does the evidence on record clarity this critical point. He reinforced his arguments with the holding in the case of Mwita Sangali v. Republic (Criminal Appeal 266 of 2011) [2013] TZCA 399 (14 June 2013JANZLII), that: 7 "the contradictions in the witnesses' testimony on important material facts weakens the prosecution's case". On an issue of identification of the appellant at the scene, M r. Mwitasi argued that, it is undisputed that, the incident occurred at night, yet the prosecution failed to establish the source and intensity of light to enable the so-called eye witnesses to clearly and undoubtedly identify the appellant as the person who had stabbed the deceased with the knife. He argued further that, the trial judge had erroneously relied on the assumption that the appellant and witnesses knew each other and that, the appellant was at the scene of crime at the time the crime occurred. Had there been sufficient light, the counsel argued, the witnesses would have been able to confirm whether the fatal stabbing was perpetrated by Cheche during the first fight or the appellant in the second fight. On the second ground, Mr Mwitasi adopted and reiterated the submissions made on the first ground. He elaborated further that, the trial judge convicted the appellant based on circumstantial evidence as in his judgement, he acknowledged that no witness saw the appellant stabbing the deceased. That, all the witnesses stated that, they saw the duo engaging in a fight. The learned counsel argued that, the trial Judge had misdirected himself on the issue and emphasized that he should have been clear as to whether he based the conviction on the evidence of the eye witnesses whom he found to be contradictory or circumstantial evidence. Pointing on further weaknesses and contradictions of the prosecution case, Mr. Mwitasi argued that, the prosecution failed to establish the place, time and the circumstances under which the appellant was apprehended. He stressed that, it was the appellant's stance that, he offered assistance to the deceased to take him to the police and the police wrongly implicated him in the murder. Additionally, M r. Mwitasi attacked the testimony of PW1, the grocery owner, arguing that, it is implausible for the appellant to send a message to PW1, while on the alleged time, the appellant was already in the police custody as a suspect for murder. On the part of the respondent Republic, Mr. Ramadhani Kalinga and Ms. Salome Matunga, both learned Senior State Attorneys, opposed the appeal. Mr. Kalinga submitted that, there was clear identification of the appellant through the respondent's three witnesses. He stated that, the three prosecution witnesses i.e., PW1, PW2 and PW5, positively and clearly identified the appellant to be present at the scene as they were 9 sitting on the same table quenching their thirst. He submitted further that, PW2 and PW5 saw the appellant at the scene stabbing the deceased on the neck using the knife. Clarifying further on the issue of identification, Mr. Kalinga submitted that, PW1 and the appellant were no strangers to each other as the appellant was a regular customer in PWl's grocery. Further, the appellant had admitted to have known PW1 since 2016 and that there were no grudges or enmities between them. PW2 and PW5 also confirmed to have known the appellant before the date of the crime. As regards PW2 and PW5 as reliable and credible eye witnesses, M r. Kalinga submitted that, there were no any contradictions between the testimonies of these two witnesses as their statements recorded at the police were wrongly admitted by the trial court. He submitted that, since these statements were not read out in court after they were admitted, he prayed that they be expunged from the record. He therefore urged us to take on board and consider only the oral testimony of PW2 and PW5 as their testimonies were never contradicted. Regarding PW5's evidence, M r. Kalinga averred that, the witness clearly explained that, certain details were omitted when the police recorded his statement. He, however contended that, the omission does 10 not constitute material contradiction but rather a slight oversight by the police officers. Mr. Kalinga also supported the post-mortem examination report as properly conducted by a competent medical practitioner and that the procedure under the Inquest Act were complied with. On the issue whether PW3, the police officer found blood when he inspected the crime scene on the second day after the date of the occurrence, which contradicted the testimony of PW1 who said he cleaned the scene on the day of occurrence of the fight, Mr. Kalinga refuted such contradictions. He insisted that, PW3 found blood in some places outside the bar while PW1 cleaned only some areas of the bar. In his opinion, there is no finding of the trial court as to which part of the bar was left uncleaned. Reverting to the second ground of appeal, M r. Kalinga argued that the prosecution was able to discharge its burden of proof through cogent testimony from five witnesses, particularly PW1, PW2 and PW5, the post-mortem examination report (PMR) and the sketch map tendered in evidence. The learned counsel was of the view that, the trial court properly evaluated the evidence on the record, found all elements 11 of the offense proved beyond reasonable doubt and correctly concluded that, it was the appellant who committed the offence. Although Mr. Kalinga acknowledged that the record of appeal does not detail the appellant's apprehension because the arresting officer did not testify and the initial police report is unavailable, he still insisted that, these factors do not weaken the otherwise strong prosecution case. He submitted that, the appellant's own admission of helping the deceased to the police station supported the prosecution's case regarding his apprehension and indictment. In rejoinder, Mr. Mwitasi submitted that, the prayer to expunge exhibits D1 and D2 which are the statements of PW2 and PW5 recorded at the police, is an attempt to cure the defects on the discrepancies and contradictions between the witness's oral testimony in court and their own written statement, such contradictions weakened prosecution's case as the credibility and reliability of the so called key eye witnesses were shaken. He further contended that, there was no coroner's request authorizing the post-mortem examination as required by the Inquest Act, which raises questions about the legitimacy of the medical findings. 12 Regarding the state of the scene of crime and the contradictions between the testimony of PW1 and PW3, M r. Mwitasi submitted that, while PW3, the police officer, claimed to have seen a stream of blood when he inspected the scene of crime, it is noteworthy that there was no stream of blood at the scene as PW1 had already cleaned it. M r. Mwitasi argued therefore that, the inconsistencies in the evidence of PW1 and PW3 discredited the testimonies of these witnesses hence had weakened the prosecution case as it clearly shows that the crime was not properly investigated. The learned counsel also pointed out that the respondent Republic's counsel failed to respond to all the material issues raised in his submissions and concluded by submitting that, the numerous gaps, discrepancies and contradictions in the prosecution's case cast serious doubt on the appellant's involvement in the commission of the crime. He thus, prayed that the appeal be allowed. Having considered the arguments by the counsel of both sides, the record of appeal, the findings of the trial judge and the precedents referred, being the first appellate court, we have the duty to re-evaluate the evidence and draw our own conclusions. While doing so, we are required to give due regard to the trial court's findings, unless the findings are plainly wrong. In resolving the first ground of appeal, we shall begin by examining the information filed before the trial court in relation to the evidence on the record. The particulars of the offence in the information stated as follows: "Marwa Matinde Wambura @ Samwel, on the 17th day o f June, 2017 at Kibamba CCM Area within Ubungo District in Dar es Salaam Region, did unlawful kill one RASHID SADICK KASHINDE" The particulars of the information show that, the offence was alleged to have been committed on 17th June, 2017 without mentioning the time. On the other hand, the evidence on record shows that, the offence was committed on 16th June, 2017 at 23.00 hrs, as per the prosecution evidence on record. For emphasis, PW1 testified during cross examination that, "yes, I remember very well the date o f the incident which is 16/06/2017". PW1 also told the same story during the examination in chief that, the offence was committed on 16th June, 2017 at 23.00 hrs. The date stated by PW1 is the exact date stated by the rest of the prosecution witnesses, and it was the same date stated by the appellant in his defence. 14 Again, exhibits PI, a post mortem examination report conducted on 19th June, 2017, indicated the 17th June, 2017 as the date of the death of the deceased, which is the second day after the alleged occurrence of the offence. Also, exhibit P2, the sketch map of the scene of crime indicated the date of 17th June, 2017, as the date the police officer visited the crime scene and drew the sketch map. Thus, according to exhibits PI and P2, 17th June, 2017, is the second day after the offence was committed. From the above, it is clear that, there are variances between the information and the evidence of the prosecution on the record. We have stated in a plethora of our decisions that the contradictions between the date of the commission of the crime in the charge or information and the evidence affects the prosecution's case and can potentially lead to an acquittal if the discrepancy is material and the charge or information is not amended. To remedy the variance, the amendment of the information could have been made under section 294 (2) (formerly 276 (2) of the Criminal Procedure Act, Cap 20 (the CPA), which provides: "5. 294 (2) Where before a trial upon information or at any stage o f the trial it appears to the court that the information is defective, the court shall make an order for the amendment o f 15 the information as it thinks necessary to meet the circumstances o f the case, unless, having regard to the merits o f the case, the required amendment cannot be made without injustice; and all such amendments shall be made upon such terms as the court shall seem just". In the case at hand, the variance between the information and the evidence adduced in support of it with respect to the date and time on which the alleged offence was committed is material, and since the information was not amended, the case for the prosecution was rendered unproved. This was the stance of the Court in Said Musa Soweni v Republic (Criminal Appeal No. 93 of 2020) [2022] TZCA 218 (22 April 2022, TANZLII), in which we held that: "The law is settled that, a charge which is in material conflict with the witnesses' testimonies materially shakes credence o f the prosecution case and renders the prosecution case not proved". The above has the effect of failure on the part of the prosecution to prove the most material fact of the offence on whether the appellant was present at the crime scene on 17th June, 2017 when the offence was committed. Since the information mentioned 17th June, 2017 as the 16 date of the commission of the offence, and as all material prosecution witnesses mentioned 16th June, 2017 at 23.00 hrs as the date the offence was committed, the information is not supported by the evidence on the record regarding the material issue on the presence of the appellant at the scene of crime on 17th June, 2017. We therefore do not hesitate to hold that, based on the variance between the information and the evidence regarding the date and time of the commission of the offence, the information remined defective and therefore the prosecution was not able to prove the presence and involvement of the appellant at the crime scene on 17th June, 2017. This rendered the information unproven on the required standard and that a miscarriage of justice was occasional on the part of the appellant. In M. Nyamhanga v. The Republic, Criminal Appeal No. 55 of 1992 (unreported) it was held that: "It has been established long time ago that the date o f the charge is that o f the unlawful act and not that o f death It is unfortunate that the trial Judge did not evaluate the evidence of the prosecution witnesses and the defence in relation to the information placed before the trial court regarding the date of the commission of the offence. He thus made a wrong finding. 17 Considering the evidence on record as alluded to above, there are variances between the information and evidence offered by the prosecution at trial. The prosecution did not amend the information in terms of section 294 (2) of the Criminal Procedure Act (the CPA). Failure to amend the information so as to align with the evidence on record renders the case unproven. See Emmanuel Kabelele v. Republic (Criminal Appeal No.536 of 2017) [2021] TZCA 531 (23 September 2021, TANZLII) making reference to the case of Abel Masikiti v. Republic [2015] T.L.R. 21, where the Court delt with the provisions of section 234 of the CPA and stated: "If there is any variance or uncertainty in the dates, then the charge must be amended in terms o f section 234 o f the CPA. I f this is not done, the preferred charge wiii remain unproven and the accused shall be entitled to an acquittal. Short o f that, failure o fjustice will occur". Equally, in the present case, there is variance between the information and the evidence on record on an essential element on the date of the commission of the offence. The prosecution was duty bound under the then section 276 (2) of the CPA to effect amendment to the 18 information. Since that was not done, the charge facing the appellant remained unproven and thus, the appellant is entitled to acquittal. In the circumstances, we find merit in both grounds of appeal, and consequently allow the appeal. In the circumstances, we quash the conviction and set aside the sentence and order the immediate release of the appellant from custody unless held for any other lawful cause. DATED at DAR ES SALAAM this 28th day of November, 2025. F. L. K. WAMBALI JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL Order delivered this 10th day of December, 2025 in the presence of the Appellant in person, connected by telephone at Chanika and Mr. Harrison Lukosi, learned State Attorney for the Respondent/Republic and Mr. Shabani Kanyai, Court clerk, is hereby certified as a true copy of the original. 19