Adamu Braison Sanga & Others vs Republic (Criminal Appeal No. 415 of 2023) [2026] TZCA 638 (8 June 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA fCORAM: MKUYE. J.A., RUMANYIKA, J.A. And AGATHO, J.AJ CRIMINAL APPEAL NO. 415 OF 2023 ADAMU BRAISON SANGA .......... . OSCAR ELIAS MWAKAPIKI ........... BENJAMIN SILVESTER MWASIMBA 1 st APPELLANT 2nd APPELLANT 3rd APPELLANT VERSUS THE REPUBLIC RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mbeya) 5th March 8th June, 2026 RUMANYIKA, J.A Before the High Court of Tanzania at Mbeya, Adam Braison, Oscar @ Elias Mwakapiki and Benjamini Silvester @ Mwasimba (the 1 s t, 2n dand 3r d appellants) respectively, were charged for murder contrary to section 196 of the Penal Code. That, they murdered Aidan Paulo Shongolo (the deceased) on 02/04/2019 at Ituha Relini area within the City of Mbeya. The deceased was a commercial motorbike rider ('!boda bodd1 ). On the fateful night, the third appellant hired the deceased from Soweto bus stop (Monqella, J^ i dated the 28th day of April, 2023 in Criminal Session No. 09 of 2021 JUDGMENT OF THE COURT 1

in Mbeya-City to an agreed point, in pretence. The third appellant had communicated it to the second appellant before. Meanwhile, the first appellant and one Venance lead the fellows towards the agreed point of ambush. However, along TAZARA railway line at Ituha area, one man who seems to have arrived ahead of others was found lying on the ground, pretended to be "unweli" and in need of a help. After a short while, the third appellant arrived with one Aidan, also on a motorbike. One Benjamin successfully stopped the motorbike, pretending to rescue the said unwell man who turned out to be Venance. Alas! the deceased was stabbed in the abdomen causing a fatal internal bleeding and liver laceration. On noticing that the deceased was no longer able to resist, the appellants robbed him a motorbike make Kinglion, Registration No. MC 757 BBT, black colored. They abandoned the injured victim there, and he died later. The dead body was discovered by passers-by, among others, Robert Mwinuka (PW1) in the next morning. The appellants were arrested in December, 2019 through cyber systems. They are alleged to have confessed the charged offence through cautioned and extra-judicial statements. However, they were unsuccessfully retracted on account that, they were made under coercion,

through police torture and that the 3r d appellant's extra judicial statement was improperly procured. In their defence evidence, the appellants denied any involvement in the murder. They raised defence of dfibi while maintaining that, they confessed while being severely tortured at Mbeya Central Police Station. That, the charge was fabricated against them. Nevertheless, the trial court found the prosecution proven beyond reasonable doubt. Notably, the conviction was found on the confessional statements and the doctrine of recent possession. Therefore, the appellants were sentenced to the mandatory death by hanging. Disgruntled, the appellants have preferred this appeal, fronting a set of two memoranda with eleven (11) points of grievance. Eight in the substantive and three points in the supplementary memorandum of appeal. However, those complaints may boil down to nine paraphrased points as follows; One, the 1s t and 3r d appellants were not free agents when making the alleged cautioned statements; two, the 3r d appellant's extra judicial statement (exhibit P3) was improperly procured. Three, the first appellant's cautioned statement (exhibit P4) was recorded out of the prescribed time; four, the third appellant's extra judicial statement and the first appellant's cautioned statement (exhibits P3 and P4) respectively, lacked corroboration; five, 3

the defence evidence was not considered; six, failure of the High Court to hold that the first appellants cautioned statement (exhibit P4) is unreliable for being admitted prematurely; seven, the committal proceedings were incurably flawed, contravening section 263(2) of the Criminal Procedure Act (the CPA), eight, the proceedings were flawed for contravening section 262 of the CPA; and nine, unexplained delay in arraignment of the appellants before the committal court. At the scheduled hearing of the appeal, Mr. Chapa Alfred and Ms. Lucy Kessy, learned counsel represented the appellants. The respondent Republic was represented by Mr. Alex Mwita and Ms. Naomi Mollel, learned Senior State Attorneys, together with Mr. Salmin Zuberi, learned State Attorney. Mr. Alfred began by adopting the appellant's written submission filed on 2/3/2026, as part of his oral arguments. That, the substantive memorandum of appeal apart, there was a supplementary memorandum of appeal filed on 20/2/2026. However, Mr. Alfred chose mainly to argue the first, second and third points in the supplementary and the third point in the substantive memorandum of appeal, respectively, as follows; First, is ori the delayed arraignment of the appellants before the committal court. Citing the 3r d appellant who was arrested last on

16/12/2019, Mr. Alfred contended that, all were arraigned before the court about six months later, on 21/05/2020, without any plausible explanation. That, the delay was inordinate contravening section 33(2) of the Criminal Procedure Act, rendering the charged offence unproved. To fortify his point, Mr. Alfred cited our decision in Duma Ilindilo Pangalasi v. R, Criminal Appeal No. 476 of 2021 [2024] TZCA 990. Next is about unexplained belated reading of the charge to the appellants. It was contended that, although the appellants were arraigned before the committal court on 21/05/2020, the charge was not read to them until about fifteen months later on 08/04/2021. In saying so, Mr. Alfred referred us to page 12 of the record of appeal, despite the case having had been called on on different occasions for necessary orders, by way of video conference. That, the omission contravened section 262 of the Penal Code. In Mr. Alfred's view, therefore, the mishap was fatal, denting the prosecution case, as it could not be cured under section 388 (currently section 411) of the CPA. Another complaint concerns the appellant's conviction being preceded by irregular committal proceedings, contrary to sections 260 and 246 of the CPA then. It was asserted that, the corresponding Information and statements of the intended witnesses were not read and explained to 5

the appellants, contrary to the law. Rather, it was contended, the documents were only shown to the appellants, as appearing on page 264 of the record of appeal. Because of the said flaw, Mr. Alfredy urged the Court to expunge the documents from the record. Addressing the Court on the invocation and applicability of the doctrine of common intention to find the conviction of the appellants, Mr. Alfredy faulted the learned Judge. He contended that, no evidence showed that, the appellants, indeed, had communicated amongst themselves to form any common intention. Moreover, it was asserted, none of the mobile numbers referred on pages 34 to 35 of the record of appeal was proved belonging to the 1s t appellant, as a subscriber. Let alone proof that the first appellant had used the numbers to communicate with the deceased ever. Moreover, the prosecution's failure to produce the respective handsets as exhibits left a lot to be desired. With respect to the involvement of the said Venance who was not arrested and charged, Mr. Alfredy asserted that, the doctrine was improperly invoked. About the 3r d appellant's cautioned statement also forming the basis of the conviction, Mr. Alfredy contended that, it was belatedly recorded, without any plausible explanation and therefore, implored the Court to discount the statement. Similarly, also put to question were exhibits P4 6

and P6, with regard to the 1s t and 3r dappellants' confessional statements. Mr. Alfred cited the Court's decision in Mawasa Jeki @ Kamanga v. R, Criminal Appeal No. 253 of 2018 [2021] TZCA 480 to reinforce his proposition. That, failure of the trial court to inquire with the view to having the appellants' voluntariness established in making of the statements, render the resultant decision inconsequential. Therefore, Mr. Alfred urged us to expunge the improperly admitted exhibits from the record and allow the appeal entirely. Additionally, it was contended that, there were two other prosecution material witnesses who were not called in court. Mr. Alfred named them to be one Ben and the deceased's wife who are said to have communicated with the deceased immediately before his death (page 28 of the record of appeal refers). It was further asserted, for instance, that, if appeared, the deceased's wife would perhaps tell the court about her husband's dying declaration. Therefore, Mr. Alfred urged us in that regard to draw an adverse inference in favor of the appellants. Further, it was contended that, whatever the reasons may be, failure of Justice of the peace to inquire from the 3r dappellant to know the cause of body pains complained of by the latter left a million questions. That, the omission violated the Chief Justice's guideline, rendering the 7

respective extra judicial statement sterile and incredible. Finally, Mr. Alfred urged us to allow the appeal, setting the appellants free. On his part, Mr. Zuberi contested the appeal with zeal and vigor. As regards the delayed arraignment of the appellants before the committal court, we were urged to dismiss the complaint for being misplaced. Expounding the point, Mr. Zuberi asserted that, the catch words are "as soon as practicable", as is envisaged, currently in section 33(2) of the CPA. That, there is no any specific timeline set for arraignment of an accused before the Court of law. It was also asserted, alternatively, that the appellants had been convicted and detained somewhere. That, summonses were issued for them to appear vainly, hence the delay. After all, Mr. Zuberi also argued, the prosecution cannot be blamed just for only the six-months' delay which is reasonable and justified. On the alleged contravention of section 245 (now section 262(1) and (2)) of the CPA, on reflection, Mr. Zuberi admitted that, indeed, the law was not complied with. That, the Information and the corresponding statements were not read out, but shown to the appellants. About contravention of the four hours-rule for the recording of cautioned statements of the 1s t and 3r d appellants (exhibits P4 and P6), Mr. Zuberi contended that, the complaint is also misconceived. That, PW2 8

had worked on the mobile numbers 0757765344, 0765672112 and 0766402296 properly, as appearing on page 34 of the record of appeal. That, indeed, the deceased had communicated last with the first appellant who cannot therefore avoid the liability. That, if anything, it would not have been practically possible for PW2 to record two different statements simultaneously, but one after another, hence the delay. Therefore, the Court was beseached to dismiss the complaint for being unmerited. Mr. Zuberi cited the Court's decision in John Shini v. R, Criminal Appeal No. 573 of 2016 [2020] TZCA 1747 to cement his point. As regards to the evidence of PW4 (the VEO) and PW5 and the alleged appellants' oral confessions and its credibility, Mr. Zuberi urged us to re-evaluate it all, with the view to arriving at our own just conclusion. It was stressed that such a confession is but reliable evidence. We were referred to the evidence of the local Chairman and another, supported by PW5. Being prompted by the Court on the propriety or otherwise of the invocation by the learned trial Judge of the doctrine of recent possession, in terms of section 23 of the Penal Code founding the conviction, Mr. Zuberi admitted that, the doctrine was invoked in the absence of the said Venance. However, it was asserted that it was not prejudicial to any party,

as long as the appellants were all charged. Similarly, it was contended that, failure to call the deceased's wife was not fatal, as her evidence was inconsequential, adding no value to the prosecution case. The Court was therefore asked to dismiss the appeal. Rejoining, Mr. Alfred reiterated his earlier submission. On the unexplained delayed arraignment of the appellants before the court, it was contended that, the delay was not justified. That, the appellants may have been detained for some other lawful causes, as alleged, but it was not stated why and when exactly when exactly they were convicted and or detained. On the court's failure to cause the Information, statements and the intended documentary exhibits to be read to the appellants during the committal proceedings, Mr. Alfred argued that the flaw was incurable. He stressed on the distinction between the words "showing" and "reading" a document. That, the law strictly required the documents to be read to the accused. In effect, it was argued that, failure of the trial court to cause the documents to be read to the appellants vitiated the proceedings. Finally, Mr, Alfred urged us to disregard Mr. Zuberi's invitation to re evaluate the evidence of PW4 and PW5 on the alleged oral confession of the appellants. If anything, it was contended, the appellants, admittedly 10

were not free agents, having made the statements also in the presence of three other policemen, thus, intimidated. Upon hearing the learned counsel's contending submissions, having reviewed the record and considered the cited authorities, the central issue for our determination is whether the prosecution case was proved to the hilt. Notably, for a conviction of murder to be substantiated, the prosecution has to establish three essential ingredients, namely; One, that the deceased is dead and his death was unnatural; two, that the death was caused by unlawful act or omission of the accused and; three, that, the killing was with malice aforethought. In this case, that the appellants and others not charged murdered the deceased with common intention. At least in the present case, the death of the deceased was proved, as per the postmortem report (exhibit P2). Much as it was also established that the immediate cause of the death was internal bleeding through a stab wound in the abdomen. For the second ingredient, the only evidence implicating the appellants responsible for the charged offence is the alleged confessional 11

statements (exhibits P4, PW3, and P6). It also included the extra-judicial statements of the second and third appellants' (exhibits P9 and P3), respectively, which were retracted and or repudiated during trial, vainly. We propose to begin with the said extra judicial statements. We find them to be unreliable, as rightly proposed by Mr. Alfred. It is so, because of some apparent procedural shortcomings, undermining their credibility and reliability against the accused. As such, Justice of the peace (PW3) recorded the 3r d appellant's confession improperly and prematurely, without observing the maker's voluntariness, as alluded to before. They are liable to be expunged from the record. See- Khalid Mohamed Kiwanga & Another v. R (Criminal Appeal No. 223 of 2019) [2021] TZCA 467. Whether or not, in the present case there was any independent piece of evidence to corroborate the retracted confessions is immaterial under the circumstances. With respect, we agree with Mr. Alfred, that the alleged confessional statements were flawed and thus, inconsequential. Similarly, we are unable to accept Mr. Zuberi's invitation to hold that, should the flawed confessions be discounted, still there would be oral accounts of PW4 and PW5 to found conviction. This is so because, admittedly, the appellants confessed while not free agents. PW4 in his 12

evidence made it clearly that, he received the alleged appellants' oral confessions also in presence of three police men, thereby undermining their free will. As regards Mr. Alfred's contention that the doctrine of common intention fell short of proof and therefore, improperly invoked, we find this complaint to be meritorious. Notably, for the said common intention doctrine to be invoked, there is always a condition precedent. For clarity, we take liberty of reproducing the applicable section 23 of the Penal Code. It reads thus: "Where two or more persons form a common intention to prosecute unlawful purpose in conjunction with one another, and in the prosecution o f such purpose an offence is committed o f such a nature that its commission was a probable consequence o f the prosecution o f such purpose, each o f them is deemed to have committed the offence". Clearly, the excerpt above tells when common intention is common. That, there must be more than one person together and jointly charged for commission or omifision of the act, subject of the charge. It is unfortunate, in the present case that, the said Venance was neither arrested nor charged. He being such a first-class accomplice, if we may 13

rank him. This is because of the role allegedly played by the said Venance in the commission of the charged offence. Without running the risk of repeating ourselves, Mr. Venance is the one whom the appellants are said to have used to trap and murder the deceased. Therefore, the omission above rendered invocation of the doctrine of common intention respectfully too premature to found conviction of the appellants. It is stressed, that the doctrine of common intention is not such a broad- spectrum principle of criminal responsibility, nor is it uncontrollable wide- range trap which may also catch the aliens. If the Legislature so intended it to be, it should have stated it explicitly, which it did not. Therefore, the charged offence was not proved to the required standard. See- Ally Abdallah Kavai v. R (Criminal Appeal No. 159 of 2016) [2016] TZCA 699. There was yet another procedural flaw and complaint that, one Ben, the deceased's fellow boda boda rider who is said to have last communicated with the deceased was not called as witnesses. Similarly, was the deceased's wife. We also find merit in this complaint. It is so because the two were material witnesses who would have perhaps corroborated or shake prosecution evidence. It could be on the timing of the murder, location of the crime scene and may be, give some clue on 14

the deceased's dying declaration. Let alone the possible assailants. The evidence of the said Venance apart, at least the said Ben also would have provided an independent account of the circumstances that lead to the discovery of the deceased's dead body. The Court therefore is entitled to draw a negative inference in favor of the appellants. See- Exaud Swai v. R (Criminal Appeal No. 66 of 1985) [1987] TZCA 96. Also being recalled, the third complaint concerns the conviction of the 3r dappellant being based on extra-judicial statement (exhibit P3) that was recorded by Mayunga Mareyesa (PW3) on 31/12/2019. It was argued that the cautioned statement was made by Benjamini Sylivester Mwandata and not Benjamin Sylivester Mwasimba. Thus, it is not certain if Mwandata was the same person as Mwasimba. It was also asserted that, although the third appellant complained of general body pains, the Justice of Piece was not bothered to inquire the source of the alleged pains. Let alone the said statement being not read over to the former. As for the effects of the said flaw, we agree with Mr. Alfred that, they rendered the prosecution case unsafe and unproved. We allow this complaint. As regards the 1s t appellant's cautioned statement (exhibit P4), Mr. Alfred also faults the learned trial Judge for using it to convict. That, it 15

was recorded out of the prescribed time, contrary to section 50 and 51 of the CPA. As a matter of fact, the requirement to observe timelines for recording a cautioned statement cannot be overemphasized, especially where as is here, involuntariness of the maker is at issue. Unfortunately, the delay was not accounted for. We stress that, any belated recording of an accused's confessional statement has far-reaching effects. Significantly, it undermines the rights of the subject. It also presupposes it being an afterthought confession and recording, rendering the respective statement amenable to be expunged from the record, as the only option. We have so pronounced ourselves countless times, for instance in Shabani Kiiza @ Ambulance v. R (Criminal Appeal No. 2015) [2017] T7CA 389. We shall also follow this stance. The fifth complaint, it is recalled, concerns the trial court's alleged failure to consider the appellant's defence evidence. This is respectfully misconceived. Importantly, the appellants' conviction hinges on the confessional statements and the doctrine of common intention, as alluded to before. After all, the appellants' evidence principally attacked the confessional statements on account of its invalidity and involuntariness of the makers. That, if anything, the confessions were obtained under duress, as the makers were severely tortured by the police. According to 16

the 3r dappellant, that, Justice of the Peace (PW3) recorded the statement in contravention of the Chief Justice guideline. Therefore, we endorse the complaint to be the genuine and meritorious. Regarding the complaint that, the learned trial Judge acted in contravention of sections 262 (1) and (2) of the CPA, we agree with Mr. Alfred. Notably, the law and practice plainly require that, upon arrest or completion of investigations whichever the case, the accused be arraigned before the committal court and charged accordingly. Then the presiding judicial officer shall only read him and explain the charge, without taking a plea. At least, initially, the appellants were brought to court on 21/05/2020. By that time investigations were still incomplete. Then the matter was adjourned several times, perhaps for convenience of the fifteen-days-rule under the CPA. It was always done on digital platform. It is also worth noting, at this stage, that the appellants' appearances would not amount to a formal arraignment which is envisaged under section 262 of the CPA. Nonetheless, there ought to be a holding charge read to the appellants while waiting to be arraigned formerly before a court of competent jurisdiction to try it. This, unfortunately was not done until on 22/04/2021, after investigations were reported complete. 17

As regards the alleged abrogation of section 263 (2) of the CPA, we find the complaint to be merited too. The taw speaks aloud that, during committal proceedings the subordinate court shall read and explain or cause the documents to be read and explained to the accused. It could be the Information, the intended prosecution witness's statements and other related documents. However, it is undisputed in the present case that, the respective documents were only shown to the appellants, as exhibited on page 16 of the record of appeal. This was yet another serious irregularity, inconsistent with section 263 (2) of the CPA, which reads as follows: "Section 263.- (1) Upon appearance o f the accused person before it, the subordinate court shall read and explain or cause to be read to the accused person the information brought against him as well as the statements or documents containing the substance o f the evidence o f witnesses whom the Director o f Public Prosecutions intends to caii at the triai" (Emphasis added) Taken from the excerpt above, therefore, we note that, the catch words in section 263 (2) of the CPA is "reading a document" to the accused. With all intents and purposes, "reading a document to the 18

accused" is quite distinct from "showing" it to the accused, as it was wrongly done by the trial court. By any stretch of the imagination, therefore, the said two phrases are neither synonymous to each other, nor is it a question of semantics, as Mr. Zuberi quietly invited us to view it. With respect, Mr. Zuberi's proposal does not satisfy any reasonably expected intention of the legislature. If accepted it is tantamount to being a day light deviation from the requirement of any committal proceedings under section 263 (2) of the CPA. It is so, because the appellants could not have known the substance of the intended prosecution case in advance for them to prepare, without the documents being read and explained to them under the circumstances. Therefore, the said omission fundamentally defeated the basics of natural justice which require that, in any judicial proceedings no subject shall be ambushed or rather left to be attacked in the back by the adverse party. From the foregoing, we need not stress, therefore, that the said procedural flaw is quite substantial, resulting into the respective exhibits and documents being expunged from the record, which we hereby do. We have taken this stance on several occasions such as in Shigela Masai @ Mhoja Lukubanija v. R (Criminal Appeal No. 273 of 2021) [2024] TZCA 715, which we are bound to follow. 19

To round up, therefore, in the absence of the appellants' cautioned and extra judicial statements and, in that regard that the oral accounts of PW1, pw4 and PW5 remained unsupported, nothing remains. It follows that, from its inception the prosecution case was bound to fail. Let alone the improperly invoked doctrine of common intention, as alluded to before. It goes without more words, strictly, that the trial was founded on no committal proceedings, as the information and other documents were not read to the appellants before. Suffices the points to dispose of the appeal. Without prejudice to the preceding observations, we feel ourselves indebted to also deliberate on the unexplained late arraignment of the appellants before the court. The record reveals very clearly that the appellants were arrested on 12/12/2019, on 15/12/2019 and on 16/12/2019, respectively. However, they were first arraigned before the committal court on 21/05/2020 which is about five (5) good months later. With all intents and purposes the delay was quite inordinate. It was unreasonably long, undermining the rights of the appellants. See- John Marwa @ Keragi v. R (Criminal Appeal No. 472 of 2015) [2018] TZCA 560 and Petro Deo v. R (Criminal Appeal No. 282 of 2021) [2014] TZCA 699, from unbroken chain of authorities. 20

In view of all the above, we find the appeal meritorious and allow it entirely. Consequently, we order for immediate release of the appellants from prison, unless further held for some other lawful cause. DATED at DODOMA this 08™ day of June, 2026. R. K. MKUYE JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL The judgment delivered this 08th day of June, 2026 in the presence of appellants in persons, Ms. Imelda Aluko, learned State Attorney for the Respondent and Mr. Shafii Kassim, Court Clerk; is hereby certified as a true copy of the original. R . W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 21