Magimbi Mzini vs Republic (Criminal Appeal No. 304 of 2023) [2025] TZCA 1122 (15 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: SEHEL J.A.. MAKUNGU. J.A. And FELESHI. J.A.T CRIMINAL APPEAL NO. 304 OF 2023 MAGIMBI MZINI. . .......................................................................APPELLANT VERSUS THE REPUBLIC.......................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Manyara sitting at Babati) (Kahyoza J.) dated the 3rd day of May, 2023 in Criminal Sessions Case No. 74 of 2022 JUDGMENT OF THE COURT 29th September & 15th October, 2025 SEHEL J.A.: This is a first appeal by Magimbi Mzini, the appellant, who was charged and convicted of the offence of murder contrary to section 196 of the Penal Code. He was tried before the High Court of Tanzania sitting at Babati (the High Court) in Criminal Sessions Case No. 74 of 2022. It was alleged by the prosecution that, on 20th November, 2020, at Chang'ombe village within Kiteto District in Manyara Region, the appellant murdered his father, one, Mzini Mazoya @ Kabwanga (hereafter to be referred to as the deceased or the victim). The i appellant denied the charge levelled against him. However, after a full trial, the High Court found him guilty as charged, convicted and sentenced him to a statutory sentence of death by hanging. Briefly, on the fateful date, the victim was ambushed and brutally attacked on his way home from a tavern in Chang'ombe village. His brother, Gumbo Wambua Kabwanga (PW2), received a distressing phone call from Gumbo Makau alerting him to the incident. Without hesitation, he rushed to the scene of the crime. What he found was harrowing: his brother lay in a pool of blood, bearing cut wounds to the neck, the back of the neck, shoulder, right ear and nose. PW2 quickly rushed him to Sunya Health Centre, but due to the severity of his injuries, he was referred to Kiteto District Hospital. En route, near Dotopes, PW2 claimed that the victim made a chilling oral declaration. He named his attacker: his own son, the appellant herein. At the hospital, Dr. Leadry Malisa (PW1) attended the patient who was in a critical condition-unconscious, bleeding profusely and severely wounded. Upon examination, PW1 discovered a deep cut wound that had severed both the oesophagus and the breathing passage, causing massive haemorrhage. Emergency surgery was performed to stitch the 2 damaged organs, and a feeding tube was inserted through the nostrils as the victim could no longer eat by mouth. The victim regained consciousness on 22n d November, 2020. His statement was promptly recorded by a police officer, G. 5310 Detective Corporal Mussa (PW4). In it, he recounted the events of that night. That, on that fateful day, he had sold a cow and received TZS. 500.000.00. He gave TZS. 400,000.00 to his first wife and loaned TZS. 100.000.00 to his second wife. At around 21:00 hours, he was at the tavern with Washua s/o Mazoya; Malogo s/o Mtyangwa and Maka s/o Ndivi. Thereby, the appellant arrived and urged him to go home. He agreed. But on his way, he encountered the appellant again, this time accompanied by two unfamiliar young men. They passed him and stopped roughly 100 meters ahead, waiting for him. As he approached, the appellant pushed him to the ground, demanded the TZS. 500,000.00 and confronted him about a withheld inheritance. Then, wielding a machete, the appellant began his assault, striking the victim on the neck and back of the neck. The victim lost consciousness until 22n d November, 2020 when he found himself admitted at Kiteto District Hospital. 3 According to the investigative officer, G. 2260 Detective Corporal Moshi (PW3), the appellant was arrested on 23rd November, 2020 and initially charged him with attempted murder. However, when the victim succumbed to death on 23r d July, 2021, the charge was withdrawn, and the appellant was taken to Kibaya Police Station for interrogation in connection with the murder. During interrogation by PW5, the appellant confessed to the crime. Although, he later repudiated the cautioned statement, claiming coercion and ignorance of its contents, a trial-within-a-trial was conducted, and the statement was admitted into evidence as exhibit P4. At the trial, the appellant denied committing the offence, asserting a defence of alibi. He claimed he had been grazing cattle and retired to bed at 21:00 hours. He said he only learned of the attack the following morning through a phone call and was arrested at the hospital while visiting his father. He maintained that he was forced to sign the cautioned statement (exhibit P4) and had no knowledge of its contents. In delivering its judgment, the High Court relied heavily on the deceased's dying declarations, both oral and written. It found these declarations to be corroborated by the appellant's cautioned statement and supported by the testimonies of PW1 and PW4. Despite the incident occurring at night, the High Court was convinced there was no mistaken identity, as the deceased had clearly recognized the appellant who was his son. The appellant's defence of a//2?/was rejected due to his failure to issue a notice as required under section 194 (4) of the Criminal Procedure Act (the CPA) and found it to have no value. Ultimately, as hinted above, the appellant was convicted and sentenced to death by hanging. Aggrieved, the appellant lodged this appeal which was initially predicated on five grounds in the memorandum of appeal but later on, he filed a supplementary memorandum of appeal comprised of six grounds. For reasons shortly to be revealed, we shall not reproduce the grounds of appeal advanced by the appellant. At the hearing of the appeal, Mr. Kapimpiti Mgalula, learned advocate, appeared for the appellant. The appellant was also present in Court. On the other hand, Messrs. Raphael Rwezahula, Jackson Mayeka and Michael Martin, all learned State Attorneys, appeared for the respondent/ Republic. On the onset, Mr. Mgalula informed the Court that, he consulted with his client and upon consultation, he would abandon all the grounds in the supplementary memorandum of appeal as well as the 2n d , 3rd , 4th and 5th grounds in the memorandum of appeal and thus, remaining with the following 1s t ground in the memorandum of appeal: "That, the learned trial Judge grossly erred in law and fact by convicting the appellant while the prosecution side failed to prove the charged offence against the appellant beyond reasonable doubt." Mr. Mgalula submitted that, in criminal cases, the prosecution has a duty to prove the charged offence beyond reasonable doubt as required by section 3 (2) (a) of the Evidence Act. He charged that the prosecution failed to discharge its duty and gave the following reasons: one, given the surrounding circumstances, the appellant's identification was not water tight to eliminate all possibilities of mistaken identity. Elaborating, he argued that, before he met his death, the deceased made his statement before PW4 wherein he stated that he was at the tavern drinking local beer and left around 22:30 hours. On his way, he met with three young men including the appellant who stopped him and demanded money then the appellant cut him with a machete. To reinforce these accounts, he referred us to the dying declaration, exhibit P3, found at page 67 of the record of appeal. Mr. Mgalula further observed that while the High Court acknowledged the incident occurred at night, it overlooked a critical detail that the deceased had not described the intensity of the lighting at the scene. He faulted the High Court's finding, pointing out its failure to notice that the deceased neither specified how well-lit the area was nor provided any description of the physical features of his attackers. According to Mr. Mgalula, this omission cast doubt on the reliability of the identification of the appellant. He argued that since the deceased's mind was affected with the intake of alcohol and the incident took place at night, it was necessary for the deceased to explain as to how he was able to identity the appellant. Worst still, PW4 failed to ask the deceased what helped him to identify the appellant. Relying on the authority in the case of Waziri Amani v. The Republic [1980] T.L.R. 250, he submitted that visual identification is of the weakest kind and no court should act on it unless all possibilities of mistaken identity are eliminated and the court is fully satisfied that the evidence before it is absolutely watertight. Two, Mr. Mgalula argued that the prosecution's evidence was riddled with material contradictions and inconsistencies. He highlighted the testimony of PW2 who made self-contradictory statements regarding 7 the events of 20th November, 2020. On one hand, PW2 claimed that, he arrived at the scene of crime and found the deceased was lying unconscious in a pool of blood. Yet, paradoxically, he also stated that, on the way to the hospital, the deceased told him that his son was his attacker. Mr. Mgalula questioned how the deceased could have made such a declaration if he was unconscious at the time PW2 arrived at the scene of crime. Yet again, he pointed out a discrepancy between PW2's account and that of the deceased concerning the date the deceased regained consciousness. PW2 claimed that it was on 20th November, 2020 during the journey to the hospital, while the deceased himself said that he only regained consciousness on 22n d November, 2020 upon finding himself admitted at Kiteto District Hospital. Mr. Mgalula further raised concerns about the number of persons allegedly involved in the attack. According to the deceased, the appellant was accompanied by two other young men. However, Mr. Mgalula questioned why these individuals were never arraigned before the court. He argued that their absence casts serious doubt on the credibility of prosecution case if, indeed, it was true that the appellant in 8 company with two young men attacked the deceased at the scene of crime. Three, Mr. Mgalula challenged the authenticity of the cautioned statement, exhibit P4. He pointed out that, according to the evidence on record, PW4 recorded the deceased's dying declaration on 22n d November, 2020. He suggested that there was a strong possibility that PW4 may have used the information obtained from the deceased to craft the appellant's cautioned statement which was recorded much later, on 29th July, 2021. In this regard, he asserted that the appellant did not confess as alleged by PW4. Four, Mr. Mgalula contended that the dying declaration lacked sufficient corroboration. He argued that the repudiated confession could not serve as independent evidence to corroborate the dying declaration. Moreover, PW2's testimony which might have served as corroboration was unreliable due to the contradictions he had previously outlined. In resisting the appeal, Mr. Rwezahula firmly supported both the conviction and the sentence handed down to the appellant by the High Court. Responding to the sole ground of appeal, he argued that the prosecution had proved its case against the appellant beyond reasonable doubt as required under section 3 (2) (a) of the Evidence Act. He asserted that all essential elements of the offence of murder were established. Starting with the question of whether death occurred and whether it was unnatural, he argued that the unnatural nature of the death of the deceased was clearly established through the testimonies of PW1, PW2, PW3 and the dying declaration made by the deceased which was admitted in evidence as exhibit P3. He emphasized that when the dying declaration was sought to be tendered in evidence, it was not objected to by the appellant. Relying on the authority in the case of Eupharacie Mathew Rimisho t/a Emari Provision Store & Another v. Tema Enterprises Limited & Another [2023] TZCA 102, he asserted that the contents of the dying declaration which was admitted without any objection from the appellant, were effectually proved on account of failure to raise an objection at the time of its admission in the evidence. Mr. Rwezahula further submitted that the deceased made oral declaration to PW2 whose evidence was found at page 10 of the record of appeal. He pointed out that PW2 testified before the trial court that the deceased told him the person who attacked him was his son, the appellant. 10 However, when probed by the Court about the reliability of PW2's testimony in particular on the apparent contradictions between his testimony and the written dying declaration (exhibit P3), Mr. Rwezahula readily conceded that PW2 was not a reliable witness. He acknowledged that PW2's account materially conflicted with the deceased's statement regarding when the deceased regained consciousness. As a result, he conceded that the oral dying declaration allegedly made to PW2 could not be relied upon to uphold the appellant's conviction and sentence. Nonetheless, Mr. Rwezahula maintained that the written dying declaration made on 22n d November, 2020 (exhibit P3) was sufficient to uphold the conviction for murder and the sentence of death. Responding on the issue of identification, he submitted that the deceased's recognition of the appellant was not a case of visual identification of a total stranger, but rather recognition of a known individual, his own son. He elaborated that, according to exhibit P3, the deceased first encountered the appellant at the tavern, where the appellant advised him to go home. Later, on his way, the deceased engaged in a conversation with the appellant who demanded money and questioned him about his inheritance. It was therefore the submission of Mr. Rwezahula that the obtaining circumstances of the identification 11 established recognition, not mere visual identification as it was in the case of Waziri Amani v. The Republic (supra). It was his view that, given the nature of the relationship and the circumstances of the case, the minute details on intensity of the light and physical appearance of the attacker which Mr. Mgalula preferred the witnesses to give were immaterial. To reinforce his point, he cited to us the case of Elisante Simon @ Kilinganya v. The Republic [2006] TZCA 226, which affirmed that identification by recognition is inherently more reliable. Responding to concerns about the deceased's mental clarity due to possible effect of alcohol consumption, Mr. Rwezahula stressed that there was no evidence to suggest the deceased was intoxicated to a degree that would impair his ability to identify his attacker. He concluded that the identification was sound and the conviction was well- founded. Further, Mr. Rwezahula argued that there was another piece of evidence connecting the appellant with the murder of the victim which was the confessional statement, exhibit P4. He argued that the appellant admitted to have attacked the deceased on the night of 20th November, 2020. Citing the case of Nyerere Nyague v. The Republic [2012] TZCA 103, he emphasized the principle that the most compelling 12 evidence in criminal trials is a voluntary confession from the accused. He added that the cautioned statement corroborated the deceased's dying declaration. On the issue of malice aforethought, Mr. Rwezahula submitted that the injuries sustained by the deceased which were multiple deep wounds to the neck and back of the neck clearly demonstrated an intent to cause death or grievous harm. He asserted that the number and severity of the blows were sufficient to establish malice aforethought. On the failure to arrest other alleged assailants, Mr. Rwezahula contended that the complaint was unfounded. He explained that, according to the evidence on record, the two individuals said to be in the company of the appellant were not identified by the deceased, which is why they were not apprehended. In conclusion, he asserted that the prosecution had proved the offence of murder beyond reasonable doubt and urged the Court to dismiss the appeal for lack of merit. However, when probed by the Court about the consistency between the dying declaration (exhibit P3) and the appellant's confessional statement (exhibit P4), Mr. Rwezahula conceded that the two statements differed. Nonetheless, he was quick to argue that the 13 contradictions were minor as they did not negate the fact that the crime had occurred. When probed further on whether the repudiated confessional statement which by itself requires corroboration could have validly corroborated the dying declaration as held by the learned trial Judge, Mr. Rwezahula conceded that such a statement lacking independent support could not be used to corroborate the dying declaration. In rejoinder, Mr. Mgalula reiterated his earlier submission that the prosecution failed to prove the case against the appellant. He emphasized that the learned State Attorney admitted to material contradictions between the oral and written dying declarations and the appellant's cautioned statement. He further reiterated that the written dying declaration lacked corroboration. He therefore urged the Court to allow the appeal. From the rival submissions, we find that the central issue for determination is whether the prosecution proved the offence of murder against the appellant beyond reasonable doubt. To establish a charge of murder, the prosecution must establish the following four essential elements; one, that, a person has died; two, that, the death was unnatural; three, that, the accused person was responsible for the 14 killing; and four, that, the killing was carried out with malice aforethought. We gathered from the parties' submissions that; it is undisputed that Mzini Mazoya @ Kabwanga died from an unnatural death on 23r d July, 2021 following an attack encountered on 20th November, 2020. Accordingly, the first and second elements were proved beyond reasonable doubt. Furthermore, according to the evidence on record, there is no doubt that the assailant acted with malice aforethought as the deceased sustained multiple injuries, deliberately inflicted on vulnerable parts of the body. This was clearly established by PW1 who testified that the deceased's oesophagus was severed, resulting in significant difficulty in consuming food. The only contentious issue remained was the identity of the deceased's assailant. That is, whether it was the appellant who assaulted the deceased on the night of 20th November, 2020 leading to his death on 23r d July, 2021. As previously stated, the High Court relied on three pieces of evidence to convict the appellant. These were: oral dying declaration made to PW2, a written dying declaration recorded by PW4 on 22n d November, 2020 and a cautioned statement given by the appellant on 29th July, 2021. We begin with the concept of a dying declaration which originates from the Latin maxim " Nemo moriturus praesumitur mentird' meaning "/Vo one at the point o f death is presumed to iid' or " truth sits upon the Ups o f dying men." In the case of Onael Dauson Macha v. The Republic [2007] TZCA 296, a dying declaration was defined as a statement made by a deceased person concerning the cause of his death or the circumstances leading to it. The admissibility of the dying declaration is rooted in the common law principle which holds that the sense of impending death compels the declarant to speak only the truth, having no hope left in this life and no motive to lie. However, in East Africa, as is the case in India but unlike in England, the admissibility of such statement does not depend on the declarant having, at the time, a settled, hopeless expectation of imminent death, so that the awful solemnity of his situation may be considered as creating an obligation equivalent to that imposed by the taking of an oath. This principle was stated in the case of Pius Jasunga s/o Akumu v. Rex. (1954) 21 E.A.C.A 331 and affirmed in the case of Onael Dauson Macha v. The Republic (supra). In Tanzania, the legal basis for admitting statements made by deceased person is found under section 34 (a) of the Evidence Act, which provides: "34. Statements, written, electronic or oral, o f relevant facts made by a person who is dead ... are themselves admissible in the following cases: (a) when the statement is made by a person as to the cause o f his death as to any o f the circumstances o f the transaction which resulted in his death, in cases in which the cause o f that person's death comes into question, whether the person who made them was or was not, at the time when they were made under expectation o f death, and whatever may be the nature o f the proceeding in which the cause o f his death comes into question" Therefore, in criminal proceedings, a dying declaration, whether written, oral, electronic, or even conveyed through gestures or signs, is admissible in evidence and relevant only to the extent that it addressed the cause or circumstances of the declarant's death. 17 Despite its admissibility, the Court has consistently emphasized the need for caution when evaluating the evidentiary weight to be attached to the dying declaration. This is due to the inherent limitation that the declarant cannot be called as a witness and cross examined. The defunct Court of Appeal for Eastern Africa in the case of Rex v. Ramazani Bin Mirandu [1937] E.A.C.A. 107 warned that too great value should not always be attached to dying statements, and they should be received with caution. Quoting a passage from the book by Field on Evidence, seventh edition, the defunct Court noted that: "The caution with which this kind o f testimony should be received has often been commented upon. The test o f cross-examination may be wholly wanted; and ... the particulars o f the violence may have occurred under circumstances o f confusion and surprise calculated to prevent their being accurately observed... The deceased may have stated his inferences from facts concerning which he may have drawn a wrong conclusion > or he may have omitted important particulars, from not having his attention called to them ." It follows that evidentiary value of a dying declaration depends on the circumstances in which it was made. In the case of Republic v. 18 Magiligita s/o Lumije (1974) LRT No. 57, the Court stated that one of the two tests which a dying declaration must satisfy before it can have any evidential value is that the said dying declaration was in fact made. The second test is whether the dying declaration was accurate, voluntary and truthful, and, this is where sometimes corroboration is required. But where the surrounding circumstances in which it was made give assurance to its accuracy and the statement is found to be truthful, a conviction may be based solely on such evidence even if it was the only evidence against the accused person. Such circumstances may be where the deceased could not have been mistaken in identifying the assailant - see the cases of Rex v. Eligu & Another (1943) 10 E.A.C.A. 90, R. Marwa (1971) HCD no. 473 and Romanus Kabogo v. Republic [2004] TZCA 78. Nonetheless, the Court in the case of Onael Dauson Macha v. The Republic (supra) reiterated that it is only on rare cases that a dying declaration would be acted upon without corroboration as it is now trite law that corroboration is generally necessary. Such corroboration can either be circumstantial - see the case of Rex. v. Said s/o Abdalla (1945) 12 E.A.C.A. 67 or through the conduct of the accused if a declaration is made in the presence of accused - see the case of Mbingu v. Uganda (1965) E.A. 71 or by direct evidence. In the appeal before us, there were two types of dying declaration. The first was an oral dying declaration allegedly made to PW2 on 20th November, 2020. However, as rightly submitted by the learned State Attorney, the circumstances under which this statement was purportedly made casted serious doubt on its authenticity. This is because, PW2 claimed that the deceased informed him while they were en route to the hospital. Whereas, the deceased himself said that after the attack, he lost consciousness and only regained it while at the hospital on 22n d November, 2020. In such circumstances, we have no hesitation to hold that the alleged oral dying declaration was not made by the deceased, as he was unconscious at the time PW2 arrived and took him to the hospital. The second declaration was a written statement recorded by PW4. Upon reappraising the evidence on record, we observed that the fact that the deceased made a dying declaration to PW4 on the 22n d November, 2020 is not disputed. Similarly, the appellant did not object to its admission in evidence. The complaint by the counsel for the appellant was that the circumstances surrounding the appellant's 20 identification were not adequately considered by the High Court. Essentially, he was challenging the accuracy and the truthfulness of the statement. The learned State Attorney contended that since the appellant did not object to its admission, he thereby accepted its contents. With respect to that submission, it is important to clarify that the mere fact a document was admitted in evidence, whether objected to or not, does not automatically mean that the document has established or proved the evidence contained therein, and must be accepted. It is a well-established principle of law that admissibility of a document in evidence is one thing and the evidentiary weight the court will attach to it is a different matter - see the cases of Steven s/o Jason & 2 Others v. The Republic [2004] TZCA 76 and Nyerere Nyague v. The Republic (supra). The case of Eupharacie Mathew Rimisho t/a Emari Provision Store & Another v. Tema Enterprises Limited & Another cited to us is distinguishable on facts, as it involved a loan agreement in a civil suit. In contrast, the appeal before us concerned a dying declaration allegedly made by the deceased before a police officer, PW4. 21 That said, we now turn to the second requirement of the dying declaration: whether it depicted nothing but the truth thereby eliminating the need for corroboration. The learned trial Judge found the dying declaration was truthful, reasoning as follows: "It is my conclusion that having seen his son in the pombeshop advising him to return home and having conversed with him before he attacked him in the way home, the deceased recognized the accused person properly even if it was in the dark. The circumstances described above proves to me that the deceased could not have been mistaken in the identification o f the accused." On our part, being mindful of the fact that the deceased was attacked during the night, we tried to look whether there is any evidence supporting the assertion of the deceased person. We have reappraised the entire evidence on the record, we failed to find any supporting evidence for an assertion that the appellant visited the deceased at the tavern and pledged him to go home. We say so because, according to the appellant's cautioned statement, he claimed that he only met the deceased when he was on his way home. Further, it was claimed by the prosecution through the deceased's dying declaration that the deceased was in the company of Washua s/o 22 Mazoya, Malogo s/o Mtyangwana and Maka s/o Ndivi on that fateful day at the tavern. Yet, none of these people were called to testify and corroborate the deceased's statement. Besides, given the surrounding circumstances, specifically that the incident occurred during night time, we strongly believe it was important for the deceased to explain how he was able to recognize the appellant in the dark. In the case of Hamis Hussein & Others v. The Republic, Criminal Appeal No. 86 of 2009 (unreported), this Court emphasized the importance of describing the source of the light, even in cases involving recognition. We stated that: "We wish to stress that even in recognition cases when such evidence may be more reliable than identification o f a stranger, dear evidence on sources o f light and its intensity is o f paramount importance. This is because, as occasionally held, even when the witness is purporting to recognize someone whom he knows, as was the case here, mistakes in recognition o f dose relatives and friends are often made ." In light of this principle, we are satisfied that the prosecution's failure to call the people who were with the deceased at the tavern coupled with the deceased's failure to describe how he was able to 23 make a proper identification of the appellant casted doubt on the accuracy and reliability of his dying declaration. With respect, we find that the deceased may have been mistaken in his identification. Accordingly, we find that there was considerable merit on this complaint. We now turn to the confessional statement purportedly made by the appellant before PW4. As previously noted, the appellant retracted his cautioned statement. Consequently, a trial-within-trial was conducted to establish its voluntariness. Ultimately, the learned trial Judge ruled that it was voluntarily made and admitted in evidence as exhibit P4. However, in his defence, the appellant reiterated his denial, claiming he did not make any statement to the police officer and was coerced to sign a document whose contents he did not know. Again, the learned trial Judge did not believe him and proceeded to convict him, relying, among other things, on his cautioned statement (exhibit P4). The learned trial Judge said that: "Another piece o f evidence against the accused person ; is the contention the fact the accused person confessed. The accused retracted his confession. He stated that he did not make any statement to the police officer and that he was tortured and compelled to sign the document. I considered the contents o f the caution statement 24 during the trial within a trial case and reviewed it during the preparation o f this judgment It is so detailed so much that the police would not have fabricated the facts. During the trial within a trial cross-examination, the accused gave facts similar to the facts in the caution statement. This fact implies that he gave the statement." The learned trial Judge concluded that: "The accused person contended that he was coerced to sign the document. It is on record that the accused was arrested, interrogated, and charged with the offence o f attempted murder on 27.11.2020. The accused did not complain that the police tortured him at the time. I find no reason why, the police tortured him when he was being interviewed after his father passed on. Not only that but also the accused alleged that the police tortured him and broke his finger. He raised such an allegation in his defence. He did not raise it by way o f cross-examination. It is hard to believe the statement. I am aware that he had no duty to prove his innocence but to raise doubt in the prosecution's evidence. His defence did not pass the test." With respect, we reappraised the entire evidence and observed that certain circumstances affected the value and weight of the alleged 25 confessional statement (exhibit P4). First, we strongly believe that the learned trial Judge did not take into account all relevant circumstances and the chronology of the events in the case as a whole. On this, we wish to refer to the leading case of the Tuwamoi v Uganda (1967) 1 E.A. 84, wherein the defunct East African Court of Appeal laid down two essential tests that a confession must pass before it can be acted upon by a trial court: namely; the admissibility of the confession statement and the weight or value to be attached to it. In the appeal before us, our concern lies primarily with the second test, namely; the weight or value of the appellant's confessional statement made on 29th July, 2021. In the case of Ndalahwa Shilanga & Another v. The Republic [2011] TZCA 159, this Court elaborated on the second stage of evaluating the cautioned statement as follows: "The second stage is the evaluation o f the confession , to determine, whether it is true, including the need o f and whether or not there is corroboration. This stage determines the weight /value o f the confession. I f the court finds that there is corroboration it can convict. I f the court finds no corroboration, it can still convict if the court finds that the confession contains nothing but the truth, and after warning itself o f the danger o f convicting without corroboration. But 26 in determining whether or not the confession contains the truth, ail the circumstances of the particular case, must be taken into account, including whether the confession is retracted or repudiated by an accused person. "[Emphasis added] According to the facts of the appeal, the appellant was arrested on 23rd November, 2020 after being mentioned by the deceased on 22n d November, 2020. PW3 testified that he arrested the appellant and interrogated him in connection with the offence of attempted murder. However, the record does not show whether the appellant admitted to the allegation of attempted murder or made a complete denial. It is our considered view that the prosecution ought to have tendered all the statements made by the appellant, so that the trial court could have all the relevant facts before it when it comes to determine the crucial issue of whether or not the contents of any of the statements were true. Especially on the observation made by the learned trial Judge that the appellant gave facts consistent to the facts contained in the cautioned statement. Secondly, we observed that the alleged cautioned statement materially contradicted the dying declaration regarding the circumstances of the assault. For instance, the cautioned statement 27 mentioned that Ng'ondu d/o Mazoya and Masila s/o Maloga were among the people who were drinking local brew with the deceased, whereas the dying declaration did not mention them. Instead, it referred to Maka s/o Ndivi who was not mentioned in the cautioned statement. Thirdly, as rightly observed by the learned trial Judge, the appellant repudiated his confessional statement. In law, confession evidence which has been retracted or repudiated cannot be acted upon to found conviction unless the same is corroborated by independent evidence-Ali Salehe Msutu v. The Republic [1980] T.L.R. 1 Shihobe Seni & Another v. The Republic [1992] T.L.R. 330 and Muhidin Mohamed Lila @ Emolo & Others v. The Republic [2018] TZCA 269. We are live that the learned trial Judge relied on the confession statement to corroborate the dying declaration. However, it is trite law that evidence which itself requires corroboration, cannot corroborate another evidence. Therefore, the repudiated confession could not corroborate the dying declaration. All said, we find that the confession statement (exhibit P4) which required corroboration had no evidential value to the prosecution case and that, it was unreliable to uphold the appellant's conviction and sentence. In the final analysis and for the foregoing reasons, we are of the settled view that the appeal is meritorious and is hereby allowed. Accordingly, we quash the appellant's conviction for murder and set aside the sentence of death by hanging. We order for an immediate release of the appellant, Magimbi Mzini, from prison, unless otherwise if held for other lawful cause. DATED at ARUSHA this 15th day of October, 2025. B. M. A. SEHEL JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL The Judgment delivered this 15th day of October 2025 in the presence of Mr. Kapimpiti Mgalula, learned counsel for the appellant, Mr. Philbert Msuya, learned State Attorney for the respondent/Republic and Mr. Musa Amry, Court Clerk; is hereby certified as a true copy of the