Thomas Dolofen Mbele vs Republic (Criminal Appeal No. 299 of 2023) [2025] TZCA 1114 (15 October 2025)

AT SONGEA (CORAM: MKUYEr J.A., MASOUD. J.A. And ISMAIL. J.A.^ CRIMINAL APPEAL NO. 299 OF 2023 THOMAS DOLOFEN MBELE ................................................................ APPELLANT VERSUS THE REPUBLIC................................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Songea) (Luvanda, J.) dated the 17th day of February, 2023 in Criminal Sessions Case No. 06 of 2022 JUDGMENT OF THE COURT 29th September & 15th October, 2025 MKUYE, J.A,: Before the High Court of Tanzania at Songea, the appellant, Thomas Dolofen Mbele was arraigned for the offence of murder contrary to sections 196 and 197 of the Penal Code, Cap 16 R.E. 2019 (the Penal Code). The particulars of the offence were that, the appellant on 20th July 2021 at around 20:00 hours in Muungano "B" Mpitimbi village, Songea

District within the Region of Ruvuma did murder one, Jesca Mgomela (the deceased). The brief facts of the case are that: The appellant and the deceased were lovers who were in their process to formalize and marry each other. It reached the stage where the appellant presented a letter of courtship to the deceased's parents but the deceased rejected contending that she no longer wished to marry the appellant. On the material date, 20th July 2021, at around 20:00 hours the deceased was escorted by her young sister Pilimina Mgomela (PW2) and her friend Furaha Ponela to the appellant's rented home. She wanted to talk with him in relation to that issue. On their arrival, they found the appellant conversing with his co-tenant Georgina Haule (PW3) while watching a TV in the sitting room found in the vacant main house. It appears that while there, the deceased repeatedly entered and exited the appellant's bed room and the appellant followed her. Thereafter, PW2 requested her sister to go back home but the deceased permitted her to go ahead, while promising to follow. PW2 and her friend Furaha Ponela departed and PW3 also retired to sleep, leaving the deceased and the appellant in his bedroom. However, the deceased did not return home as she promised. On the following day, the deceased's parents sent PW2 to 2

trace the deceased at the appellant's home but was not found. She went missing. In the evening of 21st July, 2021, the deceased's body was discovered abandoned in the forest along a minor path to the farmland. The deceased's father Johnbosco Mgomela (PW1) identified her as his daughter. Postmortem examination on the deceased's body was conducted by the medical Doctor, Zacharia Kiamwanja (PW7) who revealed that, the cause of death was strangulation, noting also marks on the neck, swelling, oxygen shortage to the brain and bleeding from the nose and ears as detailed in the postmortem report (exhibit PEI). The appellant confessed to his father Dolofen Mbele (PW5) that, he killed his fiancee at the family farm and he attempted to commit suicide by hanging himself. He also confessed to the arresting militiaman, Erasto Mbala (PW4) and before a police officer CPL Isaya (PW6) to have killed the deceased and abandoned her in the bush. In his defence, the appellant disassociated himself from the offence claiming that he did not know the victim or PW2. He also denied that PW3 was his co-tenant. Apart from that, he also disowned his own father PW5 claiming that he did not know him.

After a full trial, the appellant was convicted on the basis of circumstantial evidence premised on the doctrine of the last person to be seen with the deceased alive. He was sentenced to death by hanging. Undaunted with the decision of the High Court, the appellant has appealed to this Court fronting a self-crafted memorandum of appeal (substantive memorandum of appeal) consisting of six grounds of appeal which can be extracted as follows:

1. That, the low er court erred in law and fact to convict the appellant relying on the circum stantial evidence while the prosecution side failed to tender the sketch map o f the scene o f crim e so as to prove the case beyond reasonable doubt
2. That, the low er court erred in law and fact to convict the appellant basing on the evidence o f PW2 and PW3 while their evidence was doubtful, weak and uncorroborated.
3. That, the low er court erred in iaw and fact to convict the appellant relying on the evidence o f PW5 while h is evidence was doubtful and weak.
4. That, the oral statem ent o f the appellant which was taken by PW6 in presence ofPW 4 was in adm issible as per section 169 o f the CPA Cap

20 R.E. and that PW6 never com plied with section 52 and 53 o f Cap. 20 when taking the statem ent 5. That, the prosecution side failed to disclose the distance from where the body o f deceased was found to the alleged house o f the appellant as the conviction was entered relying on the circum stantial evidence in absence o f the sketch map to depict the circum stances o f the scene o f crime. 6. That, the prosecution failed to prove the case beyond reasonable doubt On 26th September 2025, the learned counsel who was assigned a dock brief for this matter lodged a supplementary memorandum of appeal (supplementary memorandum of appeal) comprising three grounds as follows:

1. That\ the tria l court erred in law and facts to enter conviction against the appellant based on the last seen theory which under the circum stances o f this case is unfounded.

2. That, the tria l court erred in law and fact to enter conviction against the appellant relying on oral confession which was uncorroborated.

3. That, the tria l court erred in law and facts to enter conviction against the appellant while the prosecution case was not proved beyond reasonable doubt At the hearing of the appeal, Mr. Augustino Mahenge, learned advocate, appeared representing the appellant whereas the respondent Republic had the services of Ms. Mwajabu Tengeneza, learned Principal State Attorney teaming up with Messrs. Frank Chonja and Issa Issa Chiputula, both learned State Attorneys. At the outset, Mr. Mahenge intimated the Court that he would argue the appeal in the following arrangement: Grounds 1, 2, 3, 4, 5 and 6 of the substantive memorandum of appeal co-jointly with ground No. 3 of the supplementary memorandum of appeal, then grounds Nos. 1 and 2 of the supplementary memorandum of appeal separately. He then opted to begin with ground No. 3 of the supplementary memorandum of appeal to the effect that the prosecution case was not proved beyond reasonable doubt. He submitted that, in proving the case beyond reasonable doubt, the prosecution relied on evidence that the appellant orally confessed to have killed the deceased. It was said that, the appellant confessed to PW4, PW5 and CPL Isaya (PW6), the arresting officer. On top of that, there was

circumstantial evidence based on the doctrine that he was the person last seen with the deceased alive. However, he said, such evidence was doubtful as PW2 and PW3 contradicted themselves on the number of persons seen by PW2 on arrival at appellant's home whether there were only two persons, appellant and PW3 or the appellant and PW3 together with PW3's four (4) children as was testified by PW3. The other area of contradiction, according to the learned counsel for the appellant, is on how the deceased and appellant went to the appellant's bedroom whether the deceased went first and appellant followed as was testified by PW2 or that the deceased and appellant went together to the bedroom as was testified by PW3. According to Mr. Mahenge, these contradictions went to the root of the matter with the effect of vitiating the value of evidence. The learned advocate argued further that the sketch map was not produced in court as it could have shown the place where the deceased was left at the appellant's bedroom, the room the appellant was conversing with PW3 and the place where the deceased's body was recovered. He added that, PW2 and PW3 did not explain how they were able to see the appellant and deceased entering the appellant's bedroom at night as

they did not explain the light which enabled the witnesses to see them. In this regard, he argued that the identification of the deceased and appellant was questionable. In relation to ground No. 1 of the supplementary memorandum of appeal based on the doctrine of the last person to be seen with the deceased, Mr. Mahenge argued that, it did not apply in the circumstances of this case because much as PW2 said the deceased went to appellant's bedroom and the appellant followed, no witness testified that the two were in the bedroom or rather it is not clear that the two were in the bedroom. With regard to ground No. 2 of the supplementary memorandum of appeal challenging the reliance on the uncorroborated oral confession, it was Mr. Mahenge's argument that much as PW5 testified that the appellant confessed to him orally to have killed the deceased and his evidence was found by the trial court to be credible and true, such evidence ought to have been corroborated. According to Mr. Mahenge, one Shawa who was alleged to have brought the appellant to the farm where PW5 was, ought to have testified to confirm that he, indeed, brought the appellant there by a motorcycle. This is so because appellant denied to have gone to PW5.

In this regard, the learned advocate for the appellant urged the Court to find that the appeal is merited and allow it, quash the conviction and set aside the sentence meted out against the appellant. In response, Ms. Tengeneza prefaced by declaring their stance that they supported the conviction and sentence. In other words, they did not support the appeal and she argued the grounds of appeal seriatim. In relation to ground No. 1 relating to the doctrine of last person to be seen with deceased, Ms. Tengeneza argued that it was properly invoked by the trial court basing on the evidence of PW2 and PW3. She elaborated that, PW2 who was a young sister of the deceased testified on how on 20th July 2021, they went to the appellant's home and found him talking with PW3 whom they joined. She went on testifying on how the deceased and appellant went to the appellant's bedroom which evidence was corroborated by PW3. She also testified on how she urged the deceased to go home but she allowed her to leave and she left with her friend Furaha. PW3 corroborated PW2's evidence and also she retired to bed in her bedroom leaving the deceased and appellant in his bedroom. Ms. Tengeneza went on arguing that on 21st July 2021 morning, PW2 was sent by her parents to follow Jesca at the appellant's home and on

asking the appellant about the deceased's whereabouts, he replied that she also left at night. However, the learned Principal State Attorney argued, the deceased body was found in the bush. PW1, the deceased's father testified on how he heard that, there was a lady who was killed and when he went to the scene of crime he found that it was his daughter who was killed. On the other hand, Ms. Tengeneza argued that, the appellant did not explain why Jesca was found dead in the bush as the appellant gave a total denial to the killing of the deceased. In order to support her argument, she referred us to the case of Mathayo Mwalim and Another v. Republic [2009] TZCA 53 TANZLII, page 4. In this regard, Ms. Tengeneza stressed that the doctrine of last person to be seen with deceased was correctly invoked. With regard to ground No. 2 in which the complaint is on reliance on oral confession without corroboration, Ms. Tengeneza prefaced her submission by submitting that true evidence comes from the accused person (confession). She supported her argument by decision in the case of Ally Mohamed Mkupa v. Republic [2010] TZCA 24 TANZLII page 13 para 1. She argued that the trial Judge correctly relied on the evidence of PW5 that the appellant confessed to him after the appellant summoned his father and

told him that he had killed his fiancee. The learned Principal State Attorney argued that, PW5 was such a candid person as according to the evidence he started counselling him, having seen his attempt to kill himself, slept with him until in the morning and advised him to surrender himself to the police and in fact took him there. Ms. Tengenenza argued further that, PW5's evidence was corroborated by PW2 and PW3 who last saw the appellant with the deceased and the Doctor Zacharia Kiamwanja (PW7) who upon postmortem examination on deceased's body, established that her death was due to strangulation as shown in Exhibit PI. This fact was also testified by PW5 having been told by appellant that he strangled the deceased's neck until she passed out (see page 78 - 81 of the record of appeal). In this regard, Ms. Tengeneza insisted that the trial Judge was correct to rely on the confessional evidence. In relation to ground No. 3 concerning the proof of the case, it was Ms. Tengeneza's argument that what was required to be proved was whether there was a killing and that such killing was actuated with malice aforethought as per section 200 of the Penal Code which provides for the circumstances which malice aforethought can be inferred. She contended that, it was proved that deceased was dead and that the killing was with

malice aforethought. She said, malice aforethought was proved by PW7 who revealed that the deceased's death was due to suffocation. PW5 also said he was told by appellant that he killed the deceased by strangulation. This shows that he used excessive force on the deceased which led to her death. In addition, she argued that, the appellant's conduct of lying to PW1 that Jesca had left while knowing where she was; and throwing her body in the bush shows malice on his part. Responding on Mr. Mahenge's assertion regarding contradictions in evidence, Ms. Tengeneza argued that, the contradictions on the evidence of PW2 and PW3 raised by the appellant were minor as the issue was whether appellant was with the deceased. She concluded that the seven witnesses who were paraded by the prosecution proved the case beyond reasonable doubt and prayed to Court to so find and dismiss the appeal in its entirety. In rejoinder, Mr. Mahenge, essentially, reiterated his submission in chief. He added that, the doctrine of last person to be seen with deceased did not meet the criteria as it broke. In relation to the 2n d ground of the supplementary of appeal, he argued that the complaint is on whether the appellant went to his father which could be confirmed by Shawa, who allegedly brought appellant to his father.

With regard to the 3rd ground on proof of the case, he insisted that the case was not proved beyond reasonable doubt as the circumstantial evidence did not irresistibly point to the guilty of the appellant and that the prosecution evidence was marred with contradictions as shown in their submission in chief. He, therefore, implored the Court to find that the appeal is merited and allow it, quash the conviction, set aside the sentence imposed on the appellant and order for his release from custody. Having examined the memorandum of appeal, the record of appeal and submissions from both sides, we think, the issue for this Court's determination is whether the appeal is meritorious. We shall address this appeal in the following sequence. We begin with ground Nos. 1, then ground 2 and then ground 3. Before dealing with the grounds of appeal, we wish to point outthat we are in agreement with Mr. Mahenge that it is the duty of the prosecution to prove its case beyond reasonable doubt. See: Syridion Michael v, Republic, [2024] T7CA 365; and Juma John Mchenye @ Wakubust v. Republic, [2025] T7CA 140 [both TANZLII].

Also, it is noteworthy that the evidence in this case is circumstantial based on the doctrine that the appellant was the last person to be seen with the deceased and that is among other pieces of evidence that was relied by the trial Judge to convict the appellant. In the first place, in order for the circumstantial evidence to be relied upon it must not be capable of an interpretation other than the accused's guilty - See: Abel Mathias @ Gunza @ Bahati Mayani v. Republic, [2023] TZCA TANZLII. In other words, such evidence must irresistibly point to the guilty of the appellant - See: Juma Salum Singano v. Republic [2009] TZCA 132 TANZLII. As stated above, the type of circumstantial evidence in this case is on the doctrine of last person to be seen with the deceased. In the case of Miraji Idd Waziri @ Simwana and Another v. Republic, [2020] TZCA 387 TANZLII, the Court elaborated the doctrine as follows: "Sim ply m eans that, where there is evidence that an accused was the last person to be seen with the deceased alive then there is a presum ption that he is the k ille r unless he offers a plausible explanation to the contrary." In the case of Mathayo Mwalimu (supra) cited by Ms. Tengeneza, the Court stated that:

"...if an accused person is aiieged to have been the la st person to be seen with the deceased, in the absence o f a plausible explanation to explain away the circum stances leading to the death, he or she w ill be presum ed to be the killer ..." In this case, Mr. Mahenge holds a view that much as the deceased and appellant were seen by PW2 and PW3 entering the appellant's bed room, it is not certain that they were in that room or rather the chain broke. On our part, we go along the learned Principal State Attorney's line of argument that there was ample evidence from PW2 and PW3 that the appellant and deceased were left in the appellant's bedroom. PW2 testified onhow on the material day, at about 20:00 hours, she together with her friend Furaha Ponela and the deceased went to the appellant's home. She told the trial court on how they met the appellant talking with PW3 and joined them. It was her further testimony that the deceased moved to the appellants' bedroom and appellant followed which evidence was corroborated by PW3. PW2 also told the court how she persuaded the deceased to go home but she allowed her to proceed as she would follow later and thus she left with her friend Furaha.

On the other hand, PW3, apart from her testimony on the appellant and deceased's frequent movements to the appellant's bedroom, she told the court that after PW2 left she also retired to sleep while leaving the deceased in the appellant's room. PW1 and PW2's further testimony was on how in the following morning PW2 was sent to look for the deceased and even after asking the appellant on the deceased's whereabouts he replied that she had left in the same night but then the body of deceased was found buried in the bush. Of course, the appellant in his defence distanced himself from the offence claiming not to know PW1, PW2, PW3, PW4 or even PW5, his own father. As it is, he did not explain away the principle of last person to be seen with the deceased. No attempt to do so was made by the appellant. In this regard we hold a view that the appellant was the last person to be seen with the deceased alive and therefore there is a strong presumption that he is the one who killed the deceased as was argued by the learned Principal State Attorney. We do not agree with Mr. Mahenge that there were contradictions between the evidence of PW2 and PW3 on the total number of persons who were in that house between PW2's version that they were the appellant and 16

PW3 and PW3's version that they were appellant and PW3 with her four children; and the manner the appellant and deceased entered the appellant's bedroom whether together or separately. We find that the so called discrepancies, which in our view are not established, even if were established were very minor as they did not go to the root of the matter that the deceased went to the appellants' home and that the deceased and appellant entered the appellant's bedroom where they were left by PW2 and PW3 and on the following day deceased's body was found in the bush. As such, ground No. 1 is devoid of merit and we dismiss it. The other evidence that was relied upon by trial court convicting the appellant was oral confession by appellant to PW5, PW4 and PW6. The argument by appellant is that it was not proved that the appellant went to his father (PW5) and confessed as there was no corroborating evidence to that effect which would have been adduced by a motorcycle rider Shawa who was not called to testify. We are mindful of the legal principle that where a material witness is not called to testify in court and no reasons are assigned thereto the court is entitled to draw adverse inference that perhaps if he or she was to be called he/she would have testified against the prosecution. [See: Azizi

Abdallah v. Republic, (1981) TLR 71; Pascal Yoya @ Mganga v. Republic [2021 TZCA 36 TANZLII]. In this matter, it is true that PW5 testified that the appellant was brought to his farm by one Shawa. It is true that the said Shawa was not called to testify in court. But the evidence shows that after giving vegetables to Shawa, he left with by motorcycle. It was after Shawa had left when his son (appellant) summoned him and informed him about his killing of the deceased (fiancee) Jesca. We, therefore, do not think that whether appellant was brought to PW5 by Shawa or not was an issue. The fact is that the appellant went at PW5 farm and narrated to him a story about the killing of the deceased. We think, calling Shawa was not necessary as he was not a material witness to the subject matter that the appellant confessed orally to PW5 who was such a credible witness looking at the manner he was open to explain what his son (appellant) had encountered. He had to counsel him as he attempted to commit suicide by hanging himself; he slept with him; advised him to report to the police and escorted him there. In our view, he was candid enough to do whatever he did to his son.

The second limb on this ground was that the oral confession was not corroborated. However, we go along the learned Principal State Attorney that it was corroborated by evidence of PW7 and exhibit PI on the manner the deceased was killed by strangulation. This is so because, according to PW7, in his examination of the deceased's body, he observed bleeding nose, swollen neck which were signs of strangulation of main artery. As far as who killed the deceased, the appellant gave true evidence on his killing the deceased through her confession to PW5. [See: Ally Mohamed Mkupa (supra)]. With respect to the learned Principal State Attorney, we find that PW4 and PW6s' evidence that the appellant confessed to them, cannot be used to corroborate PW5's evidence as was suggested since it was extracted under duress. This ground also lacks merit. We dismiss it. The third ground of appeal is on the proof of the case. It is the appellant's advocate's argument that the prosecution was marred with contradictions as to who was the first to enter appellant's bed room between appellant and deceased and failure to tender in court the sketch map of the scene of crime. In the first place, the alleged contradiction is not a contradiction in the eyes of law. We are aware that where there is allegation of contradictions or

inconsistencies in the prosecution evidence, the court is duty bound to consider such contradictions and resolve if they go to the root of the matter or not. See: Mohamed Said Matula v. Republic [1995] TLR 3 where it was held that: "Where the testim onies by the witness contain inconsistencies and contradictions, the Court has a duty to address the inconsistencies and try to resolve them where possible; else the court has to decide whether the inconsistencies and contradictions are only m inor, or whether they go to the root o f the m atter." See also: Ernest Evaristo v. Republic, [2017] TZCA 939 and Abasi Makono v. Republic, [2019] TZCA 572] (both TANZLII). In this matter the alleged contradiction is on who among the two persons, the deceased and appellant, entered first in the appellant's bedroom based on the evidence of PW2 that deceased entered first and appellant followed while PW3 said they entered together. We think this does not deserve to be treated as a contradiction. Even if there were two versions on that aspect, they were such minor as they did not go to the root of the matter that they entered that room and were left there.

The issue of failure to tender the sketch map is not to detain us much. The importance of the sketch map of the scene of crime was explained in the case of Loji Ngao v. Republic, [2025] TZCA 755 TANZLII where we stated that: "A sketch map o f the crim e scene is a crucial too! in crim inal investigations, providing a visual record o f the scene's layout and the relationship between the evidence and surroundings. It aids in understanding the scene, recalling details and presenting p ictorial inform ation to the parties involved and the court." As it can be discerned in this case, the prosecution did not tender the sketch map of the scene of crime and, rightly so in our view, because the case itself is built upon circumstantial evidence. According to the evidence on record, the deceased was last seen with the appellant in his bedroom in a house which was in Mpitimbi "B" village in Songea District in Ruvuma Region whereas the body of the deceased was found in the bush. We do not comprehend what purpose could such sketch map serve in the circumstances of this case. Otherwise, we agree with the learned Principal State Attorney that the prosecution managed to prove the case beyond reasonable doubts by

circumstantial evidence that the appellant was the last person to be seen with the deceased and the appellant's oral confession to PW5 who was a credible and reliable witness. It was proved that the deceased died and her death was unnatural as was testified by PW7 and exhibit PI. It was also established that the death of the deceased was occasioned by none other than the appellant as per the circumstantial evidence by PW2 and PW3 and confession made by appellant to PW5. As to whether the killing was actuated with malice aforethought as per section 200 of the Penal Code, the evidence is equally clear. The fact that he killed the deceased by strangulation shows that he intended to cause death or grievous harm within the dictates of section 200 of Penal Code. The deceased was found with injuries and swollen neck which is an indication that excessive force was applied. Apart from that, the appellant took the deceased's body to the bush which is a conduct supporting malice. Yet, he lied to PW2 and PW1 that the deceased had left the scene at night while knowing where he had taken her body for hiding.

In this regard, we are satisfied that the prosecution proved the case against the appellant beyond reasonable doubt that he killed the deceased with malice forethought. That said and done, we find that the appeal is devoid of merit and we accordingly, dismiss it in its entirety. It is so ordered. DATED at SONGEA this 13th day of October, 2025. Judgment delivered this 15th day of September, 2025 in the presence of Mr. Augustino Mahenge, learned counsel for the Appellant, Mr. Kauli George Makasi, learned Senior State Attorney for the Respondent/Republic and Mr. Elias Nkwabi, Court Clerk, is hereby certified as a true copy of the R. K. MKUYE JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL