Mohamed Yassin Senjele @ Bonge and Another vs Republic (Criminal Appeal No. 298 B of 2023) [2025] TZCA 1092 (13 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT SONGEA ( CORAM: MKUYE, J.A., MASOUP, 3.A. And ISMAIL J.A.^ CRIMINAL APPEAL NO. 298 B OF 2023 MOHAMED YASSIN SENJELE @ BONGE.....................................APPELLANT ERICK AVELIN MBILINYI.........................................................APPELLANT VERSUS THE REPUBLIC..................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania, at Songea) (Madeha, J.^ dated the 18th day of January, 2023 in Criminal Sessions Case No. 48 of 2022 JUDGMENT OF THE COURT 3r d & 13th October, 2025 MASOUP, JA.: Mohamed Yassin Senjele @ Mudy Bonge and Erick Avelin Mbilinyi, the first and second appellants respectively, were arraigned before the High Court of Tanzania at Songea, charged with murder contrary to sections 196 and 197 of the Penal Code [Cap. 16 R.E. 2019]. The prosecution alleged that on 10th July 2021, at Mtyangimbole Kijiweni, Songea District, Ruvuma Region, the appellants murdered one Andrew Augustino Nchimbi, the deceased. Following a full trial, both appellants were convicted and sentenced to death by hanging.

The prosecution evidence was from a total of seven witnesses and five exhibits. Out of the seven witnesses, there were two eye witnesses, namely, Adamu Emilian Duwe (PW3) and his wife Aveline Lukas Komba (PW4). It is from their testimony that, PW3 rented a motorcycle on 2n d July 2021 from the deceased which was handed over to them on 10th July, 2021. On the night of that day of 10th July 2021 at around 10.00pm, the appellants arrived at their residence in a Nissan Patrol vehicle, masquerading as police officers. They alleged that, PW3 was in possession of a stolen motorcycle (exhibit PI). PW3 as was PW4 testified to have seen the deceased who was then tied up and kept inside the vehicle. Shortly thereafter, the first appellant, as per the testimony of PW3 took the deceased from the vehicle, beat him up, poured petrol over him which he took from the vehicle, and set him on fire. That incident took place after the deceased was, by the instruction of the first appellant, laid down on the ground by the second appellant. The flame which was continuing burning up the deceased was extinguished after the deceased was doused with two buckets of water by the first appellant. Thereafter, the first appellant directed the second appellant to get the motorcycle from PW4's house and leave with it of which he complied.

After the second appellant had left with the motor-cycle, the first appellant ordered PW3 and PW4 to get inside the house. It was then that, the first appellant ordered them to give him money otherwise he would arrest PW3. As PW3 and PW4 only managed to get TZS 200,000/-, the first appellant accepted the sum as he left, whilst directing PW3 to report to the police station the following day with regard to the affairs of the deceased. As to the identification of the appellants as the culprits, both PW3 and PW4 claimed to have identified them at scene of crime as there was electric bulb which lighted his house. In the course of their testimony, however, they also contended that the identification was through solar light and vehicle lights whose intensity was not clear in their evidence. The following morning, at around 5:00 a.m., PW2, the deceased's brother, was informed of the incident by an unknown person. He rushed to the hospital, where he found the deceased with severe burns. PW2 narrated how the deceased was hospitalised and treated until he died on 14th January 2022. The post mortem examination (exhibit P4) which was conducted by Dr. Sania Majaka (PW7) concluded that the cause of death was septicemia resulting from extensive third-degree burns. The investigation on the incident which commenced before the death of the

deceased involved PW1, G. 8051 D/CPL Triphone, and PW7, WP. 11593 D/C Stela and resulted in the arrest of the first and second appellant, recording of the statement of the deceased (dying declaration) before his death, and preparation of the sketch map of the scene of crime (exhibit P2). The dying declaration of the deceased could not find its way in evidence after being successfully objected to. There was also PW5, Magreth Josephine Haule, who testified as to how her motorcycle which was in the possession of the deceased went missing, how she searched for it, and how she got it back through the first appellant after she had paid him some money. In their defence, the first appellant (DW1) denied any involvement in the offence, raising an alibi that he was at home with his wife on the night of the incident. He alleged wrongful arrest and denied any connection to the deceased or the motorcycle. He stated that he was initially arrested on 2n d August 2021 for grievous harm, which was later altered to armed robbery and eventually to murder. The second appellant (DW2) likewise denied the allegations, stating that he was at home with his wife on the material night and had no connection to either the motorcycle or the burning incident. It is noteworthy that the second appellant in his defence also dissociated himself from the first appellant

saying that going by the prosecution witnesses, there is none that implicated him in the crime. After a full trial, the High Court found that, the prosecution had proved the offence of murder beyond reasonable doubt. Both appellants were convicted and sentenced to death by hanging as provided under section 197 of the Penal Code. The trial court, among other things, took note of the defence of the second appellant that there was no evidence from any of the prosecution witnesses implicating him to the offence as charged as he was neither involved in the commission of the offence nor identified by PW3 and PW4. However, it was not persuaded by that line of defence for it was satisfied that, firstly, the second appellant was identified at the scene of crime on the fateful night along with the first appellant as per the testimony of PW3 and PW4. Secondly, that the evidence is clear that the duo had common intention to execute an unlawful purpose. Aggrieved, they appealed to this Court against both conviction and sentence imposed on each. Each appellant filed a memorandum of appeal consisting of a number of grounds. However, the second appellant through his counsel shortly before hearing lodged two grounds in lieu of those which were lodged earlier. For reasons which will become obvious

subsequently, we find it unnecessary to reproduce all the grounds of appeal raised. At the hearing, the first appellant was represented by Mr. Eliseus Ndunguru, learned advocate while Mr. Edson Mbogoro, also learned advocate appeared for the second appellant. The respondent Republic was represented by Ms. Mwajabu Tengeneza, learned Principal State Attorney, who was assisted by Mr. Frank Chonja and Mr. Issa Chiputula, learned State Attorneys. In the course of the hearing of the appeal, an issue on the conflict of interests of the first and second appellants at the trial emerged from the submissions by the respective learned advocates for the first and second appellants as well as by Ms. Tengeneza. The conflict was, seemingly, inherent in the prosecution evidence as well as in the defence evidence. It was also reflected on the very charge that the appellants were co-accused persons. Yet, both appellants were at the trial, seemingly, represented by one and the same learned advocate who could not have effectively cross-examined witnesses at the trial pursuant to the requirements of the defence of each of appellant. As the counsel were submitting on the grounds of the appeal, we also invited them to address

us on this anomaly which seems to touch and affect the fairness of the trial. It turned out that all learned counsel were, unanimously, in agreement that, the nature of the charge which was laid against the appellants as co-accused persons, required each of the appellants to be assigned his own advocate. They were all of the view that, that was the only way that would have enabled effective cross-examination of not only the prosecution witnesses but also amongst each other and their witnesses on the respective competing line of defence that tend to incriminate each other for the offence of murder. Given the joint nature of the charge, all learned counsel were also of the view that, it is not uncommon that the appellants would tend to incriminate each other in their defence as it happened in this appeal when their learned advocates were submitting on the respective grounds of each of the appellants. Thus, each of the appellants should have, in the circumstances, been represented by a different learned advocate and given a right of cross-examination of the other. It is, they argued, perhaps unfortunate that the latter was not the case at the trial. From what all learned counsel said and felt, we understood the learned counsel as arguing that the failure to afford the appellants

opportunity to cross-examine each other because of being represented by one and the same advocate means that they were both deprived of their right to put before the trial court their respective defence to the charge laid against them. Over and above the foregoing submission, Mr. Mbogoro brought our attention to the testimony of key witnesses of the prosecution, namely, PW3 and PW4 which in a way incriminates one appellant against the other as a simple demonstration of the magnitude of the problem. Accordingly, he referred us to pages 43 to 50 and 51 to 56 consisting of the testimony of PW3 and PW4 in which the conflicting roles, allegedly, played by the appellants are apparent. Indeed, it is in respect of such evidence that the conflicting stance of each of the appellants7case in the course of arguing the appeal emerged. Such instances, he argued, point to the kind of dilemma that the learned counsel for the appellants encountered in the course of the trial which necessarily and negatively impacted the fairness of the trial on the appellants. What also unanimously emerged from all learned counsel is that the omission to allow the appellants to cross-examine each other in view of their conflicting interests resulted in an unfair trial which vitiates the trial. Thus, they were of the view that if the court finds that there was fair trial

on the part of the appellants on account of their submissions, it should consider nullifying the trial proceedings, quashing the conviction, setting aside the sentence imposed on each of the appellants and thereafter making an order for a retrial. On whether or not retrial would accord the prosecution an opportunity to fill in gaps in the case against the appellants, the learned counsel were, seemingly, of different view. Whilst Ms. Tengeneza thought that, that room is not there as the evidence of the prosecution is watertight as against the appellant, Mr. Mbogoro and Mr. Ndunguru, were, seemingly, of different view. It was Mr. Ndunguru who made a detailed account of what the Court might need to consider. In his view, while a retrial might appear to be a viable remedy, it should not be ordered where it would, which is the possibility in the instant case, allow the prosecution to remedy deficiencies in its evidence. Mr. Ndunguru pinpointed a number of weaknesses, including, the weaknesses in the evidence of visual identification of the appellants as the culprits as it related to the testimony of the only eye witnesses in the case, namely, PW3 and PW4; the absence of evidence as to a person who described/named the appellants as the culprits at the earliest opportunity; the failure to address the advocate of the appellants in respect of

admission of post mortem examination report, exhibit P4; and the absence of the evidence regarding the dying declarations of the deceased allegedly recorded by PW7. We have carefully considered the record of appeal whilst mindful of what the learned counsel for the parties have said. It is not disputed that the appellants were jointly charged with the offence of murder. The record also bears out as a fact that the appellants were assigned and therefore represented by one and the same advocate. That was the position which remained as such right from the plea taking stage all the way through the trial. This is evident at pages 19 to 26 of the record of appeal containing proceedings in respect of plea taking and preliminary hearing. It is also evident at pages 27 to 86 consisting of the trial proceedings. What is on the record supports the view taken by the learned counsel that the learned advocate who represented the appellants could not have been able to effectively cross-examine not only the prosecution witnesses in the areas of evidence which bear conflicting interests of the appellants but also the appellants amongst each other. We say so because, when the first and second appellants gave their evidence as DW1 and DW2, respectively, at pages 78 to 883 of the record, apart from the respective examination in chief that was conducted by their learned

advocate and the cross-examination that followed from the prosecution, the appellants were practically not given right to cross-examine each other. Obviously, that was the case because of being represented by one and the same advocate. It was thus not practical for him to represent both appellants and cross-examine them and their witnesses if any. We found at page 82 of the record of appeal which contains the defence testimony that the second appellant was clear in his examination in chief that there was none of the witnesses of the prosecution that implicated him in his or her testimony. He was, in our view, seemingly, saying that the evidence incriminates the first appellant but not him. Whilst that line of defence is seemingly incriminatory against the other appellant, it was not cross-examined by the first appellant and it could not have been cross-examined given that they were all being represented by the same advocate. We gathered also pieces of evidence from the testimony of the prosecution eye witnesses which were herein above referred to us by Mr. Mbogoro and which depict conflict of interests amongst the appellants. Such pieces of evidence would require cross- examination whose outcome might be incriminatory against to the other appellant.

We have had opportunity in the past to deal with situations akin to what we are experiencing here. See for instance, Matinde Mwita Kirangani and Another v. Republic [2025] TZCA 218; Albanus Aloyce & Another v. Republic [2016] TZCA 616; Elias Mwaitambila & Others v. Republic [2015] TZCA 508; Mariki and Others v. Republic [2016] TZCA 70; and Mussa Emmanuel Daud v. Republic [2025] TZCA 99. See also, Ndania Karuki v. R. (1945) 12 EA.CA 84; Edward Msengi v. R. (1956) 23 EA.CA. 553; and Mataka and Others v. R. [1971] E. A. 495. In the case of Albanus Aloyce & Another (supra), the Court stated: "Before we are done with this matter, we wish to comment on another anomaly that we noted. The proceedings show that after each accused had testified his co-accused persons were not given an opportunity to put questions to him. An accused person who testifies becomes a witness and if there are other persons who are charged along with him, they have a right, we believe, to put questions to him/her. This is essential because there may be times when an accused may give incriminatory evidence against his/her co-accused person(s) in which case a denial of the right of cross-examination by the concerned accused

could result in a miscarriage of justice. Judicial officers are enjoined to take heed of this." Based on what we found on the record of appeal and the above authorities, we agree with the learned counsel that in the circumstances of the case before us, the appellants ought to have been afforded their opportunity to effectively cross-examine. Since they were not afforded, we are satisfied that the omission amounts to violation of fundamental right. As unanimously agreed by learned counsel, the omission is a fatal irregularity that vitiates the whole proceedings as it rendered the trial unfair and contrary to article 13 (6) (a) of the Constitution of the United Republic of Tanzania. The result of this unfortunate oversight is to nullify the proceedings of the trial court as we will do so shortly hereafter. As to the way forward in the event we nullify the proceedings as alluded to above, we have considered the principles in Fatehali Manji v. Republic [1966] 1 EA 343, which caution that a retrial should not be ordered where it would amount to giving the prosecution an opportunity to fill gaps in its case in order to mount a better case against an accused person so that it achieves a conviction. See also, D.P.P v. Owden Kasanja and Others [2011] TZCA 50; John Julius Martin and Another v. Republic [2022] TZCA 789; Albanus Aloyce & Another (supra); and Recho Abdala & Others v. Republic [2024] TZCA 1067.

Having evaluated the peculiar circumstances and the irregularities in the proceedings, we are convinced that a retrial would not serve the interests of justice. Ordering one would likely enable the prosecution to strengthen its case by filling evidentiary gaps in order to, contrary to the dictates of fairness, achieve convictions. We say so because, there will be nothing to prevent the prosecution from doing so. To clarify albeit briefly, there is on the record a thorny issue of visual identification of the appellants at the scene of crime. Despite what the learned Principal State Attorney said, we think there is room for filling the gap in order to eliminate the weaknesses that undermine positive identification. This could be by clarifying all aids to unmistaken identification like proximity, source of light and its intensity, early naming of the culprits, and ensuring that there is a corroborative and not contradictory account. In this regard, we are in agreement with Mr. Ndunguru. There are other notable issues like the dying declaration which could not be admitted on account of failure of the prosecution to build a foundation for its admission, and the evidence on common intention as argued by Mr. Mbogoro. All these, we think suggest that there is room for the prosecution to strengthen its case by filling those pitfalls if retrial is ordered. We are not prepared to do so.

In the end, we invoke the powers conferred on the Court by the provisions of section 6 (2) of the Appellate Jurisdiction Act, Cap. 141. We, accordingly, revise and nullify the proceedings of the trial court, quash the convictions and set aside the sentences meted out to each of the appellants. We further order the immediate release of the appellants from custody unless they, or either of them, is/are lawfully held for some other cause. DATED at SONGEA this 11th day of October, 2025. R. K. MKUYE JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL Judgment delivered this 13th day of October, 2025 in the presence of Mr. Elisius Ndunguru, learned counsel for the 1s t Appellant and who hold brief of Mr. Edson Mbogoro, for the 2n d Appellant, Mr. James David Rhobi learned State Attorney for the Respondent/Republic and Mr. Elias Nkwabi, Court Clerk, is hereby certified as a true copy of the original.