Muhiri Nyankaira Nyankaira vs Republic (Criminal Appeal No. 316 of 2023) [2025] TZCA 1070 (13 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: KEREFU, J.A.. MWAMPASHI. J.A. And AGATHO. 3.A.1 CRIMINAL APPEAL NO. 316 OF 2023 MUHIRI NYANKAIRA NYANKAIRA .......................................... APPELLANT VERSUS THE REPUBLIC................................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Musoma) (Mtulva, J.^ dated the 27th day of September, 2022 in Criminal Sessions Case No. 78 of 2021 JUDGMENT OF THE COURT 10th & 13th October, 2025 KEREFU, J.A.: Muhiri Nyankaira Nyankaira, the appellant herein, was arraigned before the High Court of Tanzania at Musoma sitting at Tarime (the trial court) for the offence of murder contrary to sections 196 and 197 of the Penal Code, Chapter 16 of the Revised Laws, in Criminal Sessions Case No. 78 of 2021. The information laid by the prosecution alleged that, on 17t h May, 2019 at Kiongera Village within Tarime District in Mara Region, the appellant murdered his biological father one Nyankaira S/O Nyankaira (the l

deceased). The appellant pleaded not guilty to the charge. However, after a full trial, he was convicted and sentenced to suffer death by hanging. It is noteworthy that, on 11th November, 2021, before the commencement of the trial, the learned counsel for the appellant, one Tumaini Kigombe, informed the learned trial Judge that the appellant intended to raise insanity as a defence to the charge under section 219 (1) of the Criminal Procedure Act, [Cap. 20 R.E. 2019 now Cap. 20 R.E. 2023] (the CPA). Following the said notice, and in terms of section 220 (1) of the CPA, the law applicable then, the learned trial Judge ordered that, the appellant be detained in a mental hospital for medical examination of his mental state at the time of committing the offence and avail a medical report to that effect as per the requirement of section 220 (2) of the same law. Sequel to the said order, the appellant was taken to Isanga Institution for medical examination of his mental status as ordered by the learned trial Judge. Subsequently, on 21s t September, 2022, when the matter was called on for hearing, the learned trial Judge was informed by Mr. Nimrod Byamungu, learned State Attorney, that the medical report from Isanga Mental Hospital on the appellant's mental status had been issued on 27t h

April, 2022 and availed to the parties and to the trial court. That, according to the said report, the appellant was not suffering from any mental disorder and thus, he was sane when committing the crime. Having received that information, and there being no objection from Ms. Pilly Otaigo, learned counsel for the appellant, the learned trial Judge admitted the said report in evidence and marked it as an attachment 'A' and immediately, thereafter, he proceeded with the hearing of the matter normally. To establish its case, the prosecution lined up five witnesses, namely, Joseph Gabriel Sululu (PW1), No. F. 4397 D/Mustafa (PW2), No. G.5081 D/C Cyrily (PW3), Masiaga Joseph Chacha (PW4) and Chacha Marwa (PW5). They also tendered one documentary evidence, to w it, the sketch map of the scene of crime (exhibit PI). On the other side, the appellant relied on his own evidence as he did not call any witness. He also tendered one documentary evidence which contained several medical chits from Migori County Referral Hospital, Bugando Medical Centre and Mbijiwe Diagnostic Clinic which were collectively admitted in evidence as exhibit Dl. 3

Having considered the evidence adduced by both sides, but without affording rights to the parties to submit on the medical report from the Isanga Mental Hospital (Attachment TV) and make a special finding on it, the learned trial Judge found that the prosecution had proved its case against the appellant to the required standard. Specifically, on the defence of insanity, in his judgment, the learned trial Judge took stock of the appellant's actions and conducts prior, during and after the incident, and concluded that the same were inconsistent with insanity. Thus, the appellant was convicted and sentenced as indicated above. Aggrieved by both, the conviction and sentence, the appellant is now before us challenging the decision of the trial court. It is on record that, on 25t h July, 2023 and 26th September, 2023, respectively, the appellant lodged two memoranda of appeal comprising a total of eight grounds of complaint. Again, on 8th October, 2025, Mr. Leonard Elias Magwayega, learned counsel who was assigned to represent him, lodged a supplementary memorandum of appeal comprising three grounds of appeal. However, for reasons which will be apparent shortly, we do not deem it appropriate, for the purpose of this decision, to reproduce them herein. In addition, and taking into account of the nature of the point of law involved in this matter, 4

we do not deem it desirable, for the purpose of this decision, to revisit the evidence adduced by the parties at the trial and or reproduce the factual background to this appeal. At the hearing of the appeal, Mr. Leonard Elias Magwayega, learned counsel, entered appearance for the appellant who was also in attendance. On the other side, the respondent Republic was represented by Ms. Grace Michael Madikenya, learned Senior State Attorney, assisted by Mr. Isihaka Ibrahim Mohamed, learned State Attorney. Before we could embark on hearing of the appeal on merit, we wanted to satisfy ourselves on the propriety or otherwise of the procedure adopted by the learned trial Judge in respect of the defence of insanity raised by the appellant and specifically, the report (attachment 'AO issued by the Psychiatrist Doctor from Isanga Mental Hospital on 27th April, 2022 on the appellant's mental status. As such, we invited the learned counsel for the parties to address us on that issue. In her response, Ms. Madikenya faulted the learned trial Judge for failure to comply with the mandatory procedures enshrined under sections 219 (2) and 220 (3) and (4) of the CPA regarding the defence of insanity 5

and specifically, the report (attachment 'AO issued by the Psychiatrist Doctor from Isanga Mental Hospital. To amplify on this point, she referred us to pages 27 to 28 of the record of appeal and argued that, upon receipt of the said report, the parties were not accorded an opportunity to submit on its contents to enable the learned trial Judge to determine as to whether or not the defence of insanity was established and make a special finding on that regard. On that account, she argued, that the appellant was not accorded a fair hearing on his defence of insanity. To support her proposition, she cited the case of Jacob Issa Stuart @ Mchafukoga v. Republic [2008] TZCA 107. She then, beseeched us to invoke the powers of revision bestowed upon the Court under section 6 (2) of the Appellate Jurisdiction Act, Chapter 141 of the Revised Laws (the AJA) to nullify the aforesaid proceedings, quash the High Court's decision and set aside the conviction and sentence imposed on the appellant and remit the case file to the High Court for the appellant's case to be heard afresh in accordance with the law. On his part, Mr. Magwayega subscribed to the arguments advanced by his learned friend. He insisted that, upon receipt of the report from the

' doctor of psychiatric who examined the appellant, the trial court was required to make a special finding on the mental condition of the appellant under the provisions of section 219 (2) and 220 (3) and (4) of the CPA ' after having allowed both the prosecution and defence side to submit on that aspect, which he argued, was not done in the instant case. Mr. Magwayega was emphatic that, as a result of the said failure, there is no special finding made by the learned trial Judge regarding the appellant's sanity on the report submitted from the Isanga Mental Hospital, hence caused a failure of justice on the appellant, as held in the case of Jacob Issa Stuart @ Mchafukoga (supra) cited by Ms. Madikenya. However, on the way forward, Mr. Magwayega had a different argument that, an order for retrial would not be the best option, in the instant appeal where the prosecution evidence suffers from serious weaknesses. He clarified that, the prosecution witnesses were incredible and unreliable as their evidence is tainted with contradictions and inconsistencies. It was his argument that, in the circumstances of this appeal, the appropriate remedy is an order of acquittal and not otherwise. However, and upon further reflection, he argued that, if the Court would find it appropriate to order for a retrial, then, the same should start 7

from the stage when the medical report from Isanga Mental Hospital was admitted in evidence. In her rejoinder, Ms. Madikenya insisted that, since there is no special finding of the said report by the learned trial Judge, the Court is only required to order for the retrial to allow the trial court to comply with the mandatory procedures regarding the defence of insanity as it was decided in Jacob Issa Stuart @ Mchafukoga (supra). Having considered the trial court's proceedings in light of the submissions advanced by the learned counsel for the parties, the main issue for our consideration is on the propriety or otherwise of the appellant's trial in the wake of the raised defence of insanity. The defence of insanity is governed by provisions of sections 219 and 220 of the Criminal Procedure Act [Cap. 20 R.E. 2019] as the law applicable then. The said provisions, provided a procedure to be followed when an accused person intends to raise a defence of insanity at his trial. For the sake of clarity, sections 219 and 220 of the CPA, the law applicable then, (currently sections 235 of CPA [Cap. 20 R.E. 2023], provides that: 8

"219 (1) Where any act or omission is charged against any person as an offence and it is intended at the trial of that person to raise the defence of insanity, that defence shall be raised at the time when the person is called upon to plead. (2) Where, on the evidence on record, it appears to the court that the accused person did the act or made the omission charged but was insane so as not to be responsible for his action at the time when the act was done or the omission was made, the court shall make a special finding to the effect that the accused person did the act or made the omission charged but by reason of his insanity, is not guilty of the offence. 220 (1) Where any act or omission is charged against any person as an offence and it appears to the court during the trial of such person for that offence that such person may have been insane so as not to be responsible for his action at the time when the act was done or omission made, a court may, notwithstanding that no evidence has been adduced or given of such insanity, adjourn the proceedings and order the accused person to be detained in a mental hospital for medical examination; 9

(2) A medical officer in charge of the mental hospital in which an accused person has been ordered to be detained pursuant to subsection (1) shall, within forty-two days of the detention prepare and transmit to the court ordering the detention, a written report on the mental condition of the accused person setting out whether, in his opinion, at the time when the offence was committed the accused was insane so as not to be responsible for his action and such written report purporting to be signed by the medical officer who prepared it may be admitted as evidence unless it is proved that the medical officer purporting to sign it did not in fact sign it; (3) Where the court admits a medical report signed by the medical officer in charge of the mental hospital where the accused was detained, the accused and the prosecution shall be entitled to adduce such evidence relevant to the issue of insanity as they may consider fit; and (4) Where, on the evidence on record, it appears to the court that the accused person did the act or made the omission charged but was insane so as not to be responsible for his action at the time when the act was done or omission made, the court shall 10

make a special finding in accordance with the provisions o f subsection (2) of section 219 and all the provisions of section 219 shall apply to every such case." [Emphasis added]. The applicability of the above provisions was articulated, at length by the Court, in Republic v. Madaha [1973] E. A. 515, MT. 81071 PTE Yusuph Haji @ Hussein v. Republic [2016] TZCA 2231 and Mwale Mwansanu v. Director of Public Prosecutions [2021] TZCA 52. Specifically, in MT. 81071 PTE Yusuph Haji @ Hussein (supra), the Court elaborated a procedure to be followed when a defence of insanity is raised, that: "First, where it is desired to raise the defence of insanity at the trial, such defence should best be raised when the accused is called upon to plead. Second, upon being raised the trial court is enjoined to adjourn the proceedings and order the detention of the accused in a mental hospital for medical examination. Third, alter receipt of the medical report the case proceeds the normal way with the prosecution leading evidence to establish the charge laid and then doses its case. Fourth, upon the closure of the prosecution case, the li

defence leads evidence as against the charge laid, including medical evidence to establish insanity at the commission of the alleged act, And, finally, fifth, the court then decides on the evidence, whether or not the defence of insanity had been proved on a balance ofprobabilities. If such enquiry be determined in the affirmative, the court will then make a special finding in accordance with section 219 (2) and 220 (4) of the Act and proceed in accordance with enumerated consequential orders." [Emphasis added]. Again, in Merchades Burkadi v. Republic [2024] TZCA 1172, when we encountered an akin situation, that the report regarding sanity of the appellant was admitted at the trial, but none of the parties was afforded an opportunity to address the trial court on its contents, as required by section 220 (3) of the CPA, we stated that: "Upon receipt of the report duly signed by the medical officer in charge of a mental hospital on the mental condition of the accused stating if, at the time when the offence was committed the accused was insane or not, the trial court may cause the report to be admitted in evidence (sect. 220 (2) of the CPA). Where the court admits such a 12

medical report, the accused and the prosecution shall be entitled to adduce evidence as relevant to the issue of insanity as they may consider fit (sect. 220 (3) of the CPA)/' [Emphasis added]. Applying the above stated procedures in the instant appeal, it is beyond question that, at the preliminary stage, the learned trial Judge correctly, in our view, predicated the order for the appellant's detention at a mental hospital under the above provisions. The trial court's proceedings at pages 27 to 28 of the record of appeal, reveals further that, upon receipt of the medical report from Isanga Institution on the appellant's mental state, the learned trial Judge only admitted it in evidence as attachment 'A' and then proceeded with the hearing of the case to the end without affording the parties an opportunity to adduce evidence for and against the said report and make a special finding thereon. However, in his judgment, at pages 110 to 112 of the record of appeal, the learned trial Judge discussed the said report at length and concluded that the appellant's defence of insanity was not established. It is our settled view that, it was improper and erroneously for the learned trial Judge to determine the said report at the stage of composing 13

his judgment, without first affording the parties an opportunity to adduce evidence on the same. On that account, it cannot be vouched safely that there was a fair hearing in respect of determination of the appellant's defence of insanity, as there is no special finding of the learned trial Judge, in the record, on that aspect. As correctly argued by the learned counsel for the parties, the said omission vitiated the trial hence rendering the entire trial court's proceedings a nullity. That being the position, we hereby invoke the revisional powers bestowed on the Court under section 6 (2) of the AJA and nullify the trial court's proceedings, quash the appellant's conviction and set aside the sentences imposed on him. On the way forward, we agree with Ms. Madikenya that, there being no special finding by the learned trial Judge on the report from Isanga Mental Hospital regarding the appellant's defence of insanity, an order for retrial would be appropriate, in the circumstance, to allow the issues raised herein above to be rectified. Consequently, and for the interest of justice, we remit the case file to the High Court for it to re-hear the appellant's case in accordance with the mandatory requirement of the law. Considering the nature of the offence, we order an expedited retrial of the case before another Judge from the 14

stage when the report from Isanga Mental Hospital was admitted in evidence. Meanwhile, the appellant shall remain in custody pending retrial of his case. DATED at MUSOMA this 11th day of October, 2025. R. J. KEREFU JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL Judgment delivered this 13t hday of October, 2025 in the presence of Mr. Leonard Elias Magwayega, learned counsel for the Appellant and Mr. Jonas Samwel Kivuyo, learned State Attorney for the Respondent/Republic via Virtual Court and Stella Mlaponi, Court Clerk; is hereby certified as a true copy of the original. £\ C. M. MAGESA g DEPUTY REGISTRAR £ COURT OF APPEAL 15