Nestory Joseph Haule vs Republic (Criminal Appeal No. 793 of 2023) [2025] TZCA 1094 (13 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT SONGEA (CORAM: MKUYE. J.A., MASOUP, J.A. And ISMAIL, J J U CRIMINAL APPEAL NO. 793 OF 2023 NESTORY JOSEPH HAULE......................................................... APPELLANT VERSUS THE REPUBLIC ..................................................................... RESPONDENT (Appeal from the decision of the Resident Magistrates' Court of Songea with Ext. Jurisdiction at Songea) ( Nqatunqa, PRM - Ext. Jur.^ dated the 5th day of September, 2023 in RM. Criminal Sessions Case No. 3 of 2023 JUDGMENT OF THE COURT 29th September & 13th October, 2025 MASOUP, JA-: The appellant, Nestory Joseph Haule, was charged with the murder of the deceased, Adelhilda Mahuwi contrary to section 196 of the Penal Code. Ngatunga, PRM- Ext. J. convicted the appellant as charged and sentenced him to death. The appellant has appealed to this Court against both conviction and sentence. It was common ground that the appellant used to work for the deceased as a casual labourer. At the trial, it was the prosecution case that, on the fateful day of 3r d October, 2019, the deceased was at night hours killed by the appellant at her residence in Mkongotema village within Rural District of

Songea in Ruvuma Region. The deceased was discovered dead by her fellow teachers who included Bentina Elias Mahuwi (PW3). It was her absence from school on the morning hours of that day which triggered a follow up at her residence. As a result of that follow up, the deceased's house was found locked from outside. However, upon peeping through the window, the deceased was seen lying on her bed unresponsive. PW3 reported the incident to Adolf Christoms Nchimbi, the Ward Executive Officer of Mkongotema Ward (PW9). Having arrived at the scene of crime and reported the incident to the police, PW9 broke the door with the assistance of a militiaman. Having entered inside the house along with PW3, they found the body of the deceased lying on the bed covered by a bedsheet and blood spatters on the bed and all of the floor. The body of the deceased was eventually taken to Madaba Health Centre by G. 429 D/CPL Alex (PW10) who also drew the sketch map of the scene of crime (exhibit P9) and had the body examined by a medical doctor whose post mortem examination report (exhibit P ll) was tendered by E.1861 D/SGT Mussa (PW12). The appellant was, eventually, arrested by H. 143 CPL Districk (PW7) on 3r d October, 2019 at Mavanga Village within Ludewa District, following an enabling role played by Ayoub Brighton Nguhula (PW4). The appellant's cautioned confessional statement (exhibit P12) and extra-judicial statement

(exhibit 13) were recorded by E. 8161 D/SGT Mussa (PW12) and Goodluck Kelvin Ndimbo (PW13) respectively. Alongside exhibits P12 and P13, there were certificates of seizure (exhibits P5, P6 and P7) regarding items (exhibits PI, P2, P3, P4, and P8) which were, allegedly, seized by SP Kulwa Misogalya (PW2) from the appellant's residence and which were allegedly stolen by the appellant from the deceased on the fateful day. The alleged search and seizure were conducted on 4th October, 2019 in the presence of, among others, Ayoub Brighton Nguhula (PW4) as an independent witness. Those items were identified as such by a deceased daughter, one Tumaini Ireneus (PW8), after being tendered in evidence by G. 3264 CPL Bakari, exhibit keeper (PW1). There were also other exhibits including a post mortem report (exhibit P ll). In his defence, the appellant retracted the confessional statements. He contended that they were not voluntarily obtained as he was tortured in the hands of the police. He denied taking part in the killing of the deceased. The trial court was satisfied that the prosecution proved the case against the appellant beyond reasonable doubt. It rejected the appellant's defence as an afterthought as the court was satisfied that the alibi raised was baseless and the confessional statements were both voluntary and truthful. In relation to the seized items, allegedly, stolen from the deceased, the trial court invoked the doctrine of recent possession to found the

conviction. The trial court believed that the seized items were deceased's properties which were recently stolen from the deceased by the appellant. Consequently, the appellant was, as alluded to herein above, convicted of murder and sentenced to death. In this appeal, the appellant was at the hearing represented by Mr. Innocent Mbunda, learned advocate. On the other hand, the respondent Republic was represented by Ms. Mwajabu Tengeneza, learned Principal State Attorney who was assisted by Mr. Frank Chonja and Mr. Elipidi Tarimo, learned State Attorneys. Initially, the appellant raised six grounds. However, at the hearing those grounds, save for the sixth which was abandoned, were merged with those which were lodged by the appellant's learned advocate as supplementary grounds. As a result, the grounds were argued in five clusters of complaint as follows: Firstly, a complaint on illegality of search and seizure in terms of being conducted contrary to section 38 which is now section 39 of the Criminal Procedure Act, [Cap. 20 R.E 2023] (the CPA); secondly, confessional statements were obtained involuntarily and therefore inadmissible; thirdly, there was a broken chain of custody of the seized items and improper application of the doctrine of recent possession in grounding conviction; fourthly, defence evidence was not considered; fifthly, the postmortem report (exhibit P ll) was improperly admitted

without giving opportunity to the appellant to cross-examine the medical doctor who examined the deceased's body; and sixthly, the prosecution case was not proved beyond reasonable doubt. On the first cluster, the complaint, as argued by Mr. Mbunda, and not entirely objected to by Ms. Tengeneza, was that the search and seizure which was conducted leading to seizure of the items allegedly stolen from the deceased was illegal. The argument was that the search did not conform to the requirements of the provisions of section 39 of the CPA. It was argued that, contrary to the requirements of that provision, there was no search warrant issued whilst the prosecution evidence is clear that the search was not an emergency one covered by section 42 (1) of the CPA; Similarly, there was no occupier or near relative of the appellant that was involved; there was no independent witness involved; and there was no any receipt acknowledging seizure of those items that was issued. Consequently, the exhibits resulting from that search amounted to illegally obtained evidence which should be discounted as it cannot be relied upon in grounding conviction. The learned advocate referred us to pages 89, 91,92, ad 112 of the record of appeal to substantiate his point of view, and in particular, that the search was not an emergency search given that the appellant was arrested at 10:30 hrs on 4th October, 2019 in connection with the incident that

occurred on 3r d October, 2019. Furthermore, to drive home his point on independent witness, Mr. Mbunda contended that, since PW4 was instrumental in the arrest of the appellant, it is obvious that he had an interest to serve which disqualified him from being an independent witness. In fortification, Mr. Mbunda relied on the case of Ndima Kashinje @ Joseph v. Republic [2021] TZCA 398. Whilst agreeing that there was no search warrant issued and that the search that was conducted was not an emergency one, Ms. Tengeneza was of the argument that in view of PW2's position as OC CID when he searched the premise of the appellant and seized the relevant items, there was, she argued without citing any authority, no need of seeking and obtaining a search warrant from the police officer in charge of the relevant police station. As to the claim of absence of an independent witness, it was her argument that PW4, being a civilian, was, undoubtedly, an independent witness in that search which was conducted in the presence of the appellant as the occupier of the premise in which the relevant items were seized. With those submissions, she implored us to dismiss the complaint for lack of merit. We need not be delayed in resolving the issues arising from the above rival submissions. As submitted by Mr. Mbunda and conceded to by Ms. Tengeneza, it is our finding that the search which was conducted by PW2

was, indeed, not emergency. We are of that view because, there is nothing on the record from PW2 suggesting that it was emergency search in respect of which a search warrant is not a requirement. As if that was not enough, we also agree with Mr. Mbunda that PW4 was in the circumstances not independent as he was part of the team that carried the investigation leading to the arrest of the appellant. In particular, it is PW4 who, according to his own testimony, set the trap that led to the arrest of the appellant before the eventual search took place. Obviously, PW4 had interest to serve in view of being instrumental in arresting the appellant. The absence of search warrant and such other anomalies like the absence of independent witness in our view renders the search and the resulting seizure illegal from the very beginning. All these irregularities, raise reasonable doubt on the search and seizure which must be resolved in favour of the appellant. It was thus wrong to ground conviction based on exhibits which were a result of that search and seizure which was marred by such serious irregularities and which amounted to illegally obtained evidence. See, Shabani Said Kindamba vs Republic [2021] TZCA 221, and Ndala Lugata v. Republic 2023] TZCA 17926. We hereby allow this cluster of complaint and proceed to discount the evidence. With regard to the second cluster of complaint, Mr. Mbunda's argument was that the confessional statements (exhibits P12 and P13) were

obtained involuntarily and ought not to have been admitted in evidence and relied upon by the trial court to ground conviction. It was so argued because it is evident in exhibit P13 that the appellant was tortured by the police officers who as a result inflicted visible fresh wounds in various parts of his body. Thus statements, for such reason, ought not to have been admitted and relied upon to ground conviction. According to the learned advocate, exhibit P13 which is extrajudicial statement was not objected to at the trial as it carries with it the very evidence of torture which was brought to the attention of the justice of peace (PW13). The case of Steven s/o Jason and Others v. Republic [2004] TZCA 76 was referred to us to support the learned advocate's line of argument. On account of his submission, Mr. Mbunda invited us to expunge the two statements from the record. Ms. Tengeneza's submission in reply on the above complaint was brief. She did not, nonetheless, seek to distinguish the authority in relation to the principle relied on by Mr. Mbunda. She just insisted that exhibit P12 was admitted after the trial within a trial which means that it was cleared for admission after being found to have been voluntarily taken and truthful. Further that, exhibit P13 was not, in any way, objected to by the appellant when it was tendered at the trial, though she did not challenge that it was not objected to because it is in itself a proof of torture and the failure by the prosecution to prove that the confession was made by the appellant as a

free agent. She, however, added that the statement was recorded after the appellant had confirmed to PW13 that he wished on his own free will to make the statement. On that account, the learned Principal State Attorney submitted that, there is, at this stage, no room on the part of the appellant to challenge his confessional statements. We have given due consideration to the arguments involving torture inflicted on the appellant in light of the prosecution evidence (exhibit 13 and PW13's testimony) which bears out that upon being inspected, the appellant was found to have fresh wounds on various parts of his body. The record also bears out that the appellant told PW13 that those wounds were a result of torture that was administered to him by the police about five days ago. In line with the above, our minds recalled what we said in Jackson Protaz v. Republic [2021] TZCA 705 when we encountered a situation akin to this one. We held in that case that: 'We are o f the view that the holding o f the trial court in finding the appellant’ s claim o f being tortured not proved and an afterthought, with due respect, to be misconceived and not supported by evidence. There is clearly the evidence o f PW2 who testified to have seen the fresh scars but found not to be linked with the arrest o f the appellant even though by the time he appeared before him the appellant had been under arrest for four days. Exhibit P3f as we have

highlighted above, shows the fact that P2 recorded to have witnessed fresh scars. The trial court also erred by shifting the burden to the appellant to prove he was tortured or injured while it was the duty o f the respondent Republic to prove that the extrajudicialstatement was recorded voluntarily. We are o f the firm view that had the SRM Ext. J. considered the evidence on record, and the appellant's constant claims o f having been tortured at the time o f arrest and while in custody, she would not have admitted the extrajudicialstatementguided by the decision o f this Court in Steven Jason and Others vs Republic, CriminalAppealNo.79 o f1999 (unreported) where we stated that: ' Where an accused claims that he was tortured and is backed by visible marks o f injuries it is incumbent upon the trial court to be more cautious in the evaluation and consideration o f the cautioned statement even if its admissibility had not been objected to; and such cautioned statement should be given little if no weight at all.'" Indeed, we are aware that in that case the confessional statement addressed was a cautioned statement and it was one which was not objected but we believe the principle is relevant to the instant appeal and especially since the extra judicial statement was retracted. (See, Richard Lubilo and Another vs Republic, Criminal Appeal No. 10 o f

1995 and Marcus Kisuku vs Republic, Criminal Appeal No. 146 o f1003 (both unreported)." The Court in that case went further to state that: "Worthy to note is that in Thadei M/omo and Others vs Republic [1995] T.L.R. 187, the Court emphasized that the provision allowing an involuntary confession to be admissible if the Court believes it to be true (that is section 29 o f the Tanzania Evidence Cap 6 R.E. 2002, now 2019), cannot be invoked where actual torture is proved to have been applied. Similarly, fate should also bore on the current confessional statement having found it was procured through torture." On the authority of the above cases, and given the circumstances of the instant appeal where the prosecution evidence is in itself express that the appellant complained to PW13 that he was tortured in the hands of the police where he was from and had to return to as he was still in police custody, we agree with the learned counsel for the appellant that the cautioned statement (exhibit P12) as well as the extra-judicial statement (exhibit P13) were improperly admitted and relied upon to convict the appellant. We would add that, the fact that the admission of exhibit P13 was not objected to by the defence does not in our view preclude the Court from

addressing its mind on it. Since torture was involved just a few days before the appellant was taken from the police custody to make the statement before PW13 and had, as we alluded to above, to return to the same hands of the police afterwards, it is in the circumstances doubtful whether the appellant was really a free agent when he made that statement before PW13. This situation raises reasonable doubt to the prosecution case which is necessarily to be resolved in favour of the appellant. We, accordingly, allow the ground of complaint and expunge exhibits P13 and P12 from the record. In view of our findings in the first cluster of complaint, it would seem unnecessary to indulge in the third cluster which complains about the chain of custody of exhibits which were seized from the search and seizure conducted without search warrant and the application of the doctrine of recent possession in respect of the seized items alleged to belong to the deceased. We will nevertheless, consider the complaint albeit in passing. The argument by Mr. Mbunda in respect of the limb of the complaint on chain of custody was in a nutshell that there was a broken chain of custody of the seized items which by their nature could change hands easily. He relied on the case of Chacha Jeremiah Murimi & Others v. Republic [2019] TZCA 52. He based his argument on the absence of a paper trail on

which the testimony of prosecution witnesses rested although the same was never produced in evidence. On the other hand, Ms. Tengeneza was of opposing stance. She argued, relying on Marceline Koivogui v. Republic [2002] TZCA 252, that the chain of custody need not be established by paper trail. Highlighting on the testimony of PW2, at pages 112 to 117 of the record of appeal and the testimony of PW1 at pages 75 to 78 of the same record, which envisaged the unbroken chain, the learned Principal State Attorney showed us how the relevant exhibits changed hands as she ruled out the possibility of tempering which would have the necessity of producing the paper trail. She, in the end, concluded that the chain was intact and not broken at any stage. We are in agreement with Ms. Tengeneza that, in view of what is on record, particularly from the testimony of PW1 and PW2, it is evident that the chain of custody was not broken. Suffices to say that we did not see any missing link in the handling of the exhibits from the moment of search and seizure until they were brought and tendered at the trial. Thus, save for what we found herein above in relation to the irregularities in the search and seizure which was conducted without search warrant and in the absence of an independent witness, we accordingly reject and dismiss the complaint on the chain of custody.

As to the other limb of the third complaint, Mr. Mbunda's lengthy submission was based on the elements relating to the applicability of the doctrine of recent possession. He argued that the elements relating to the applicability of that doctrine were not established beyond reasonable doubt. Thus, it is neither the testimony of PW3 nor PW9 that bears anything to the effect that when they entered the deceased's house, they found deceased's items stolen. It was equally contended that, it was not in the prosecution evidence that there is any theft of the deceased's property that was reported which included items falling within the description of those in respect of which the doctrine was invoked by the trial court. To make it worse, PW8 who, purportedly, identified the items from the dock, it was argued, did not distinctively and conclusively describe and identify each and every item believed to have been recently stolen from the deceased other than giving a generalized account of the seized items as a whole without production of any receipts. In that respect, we were referred to PW8's testimony in which she is on record that she only identified those items because she was the one who purchased them for the deceased in 2007 and 2015. As for the other items, that she recognised them because they belonged to the deceased. Conversely, Ms. Tengeneza's submission in reply roundly maintained without showing any distinctive descriptions from the testimony of PW8 for each and every item, let alone showing any

evidence to the effect that there was any incident of stealing from the deceased's house which was recently reported. Nevertheless, Ms. Tengeneza maintained that the stolen items belonging to the deceased were distinctively identified by PW8 as those which were seized from the appellant's house. Having considered the prosecution evidence on record in light of the rival arguments by the learned counsel, we entertain no doubt that the doctrine of recent possession was wrongly invoked by the trial court to link the appellant to the killing of the deceased. We are of that finding because of the following: One, in the absence of any evidence from PW8 or any of the prosecution witnesses about items, which were distinctively described as belonging to the deceased and which were recently stolen and reported accordingly, there is nothing on the basis of which the seized items on record could be linked to. Two, the testimony of PW8, who is alleged to have distinctively identified those items, did not positively identify the items as those which were recently stolen from the deceased. In our finding, we are mindful of our recent decision in the case of Beni Mswata v. Republic [2025] TZCA 1023 in which while restating the elements that must to be established beyond reasonable doubt in invoking the doctrine of recent possession, we held in part thus:

"For the said presumption to stand, it is trite law, three essential elements mustbe established beyond reasonable doubt First, the accused must have been found in either actual or constructive possession o f property which have been positively identified to be that o f the complainant Two, the respective property must have been recently stolen. Three, the accused must have failed to give reasonable explanation to rebut such a presumption. See for instance, Joseph Mkumbwa & Another v. R (CriminalAppeal No. 94 o f2007[2011] TZCA 118, Mussa Hassan Bar/e and Another v. R (Criminal Appeal No. 292 o f 2011) [2012] TZCA 230, and Flavian Gaspai v. R (Criminal Appeal No. 643 o f 2022) [2025] TZCA 548, TANZLII. To positively identify that the item found in possession o f the accused is that which was stolen, the following statement o f the Court in Flavian Gaspai v. R (supra) is instructive: 'In identifying stolen property allegedly found in the accused person's possession, the complainant must describe it conclusively stating its distinctive features as opposed to giving a generalized description thereof. See, Abdul Athuman @ Anthony v. Republic, Criminal Appeal No. 99 o f 2000 [2005] TZCA 29; and Vumilia Daud Temi v. Republic, Criminal Appeal No. 246 o f 2010 [2013] TZCA 443;

quoting David Chacha and8 Others v. Republic, CriminalAppeal No. 12 o f1997 (unreported ) . ' " In all, we find merit in the second limb of the third complaint regarding wrongful application of the doctrine of recent possession to found conviction. We accordingly allow it. Having found in favour of the appellant in the above complaints, we conveniently dealt with the remaining clusters of complaint together as they relate to the issue whether on the remaining evidence on record, the prosecution case against the appellant was proved beyond reasonable doubt. This issue takes us, in the first place, to the post mortem examination report (exhibit P ll). Indeed, exhibit P ll was tendered in evidence by a police investigator, PW12 and not the medical doctor who examined the deceased's body and prepared the exhibit. The argument by the learned advocate for the appellant, which was also supported by Ms. Tengeneza, is that the exhibit was improperly admitted and wrongfully relied upon by the trial court without first informing the appellant of his right under section 291 (3) now section 310 (3) of the CPA to have the medical expert appear at the trial for cross-examination. Citing the case of Alfeo Valentino v. Republic, Criminal Appeal No. 459 and 494 of 2002 (unreported), the learned advocate, who was also supported by Ms. Tengeneza, urged us to expunge the post mortem examination report (exhibit P11 1 frnm t-h ^

We agree with both learned counsel that the exhibit at issue was improperly admitted on account of violation of section 310 (3) of the CPA. We say so because, there is nothing on record to the effect that the appellant was informed of his rights as required by that provision. With that serious irregularity, we hereby expunge exhibit P ll from the record. However, in light of the submission by Ms. Tengeneza and our careful scrutiny of the evidence of the prosecution witnesses, we are, on the authority of Mathias Bundala v. Republic [2007] TZCA 16, satisfied that there is ample oral evidence which establishes beyond reasonable doubt that the deceased is dead and that her death was brutal and unnatural. Our finding on the death of the deceased is based on the evidence of prosecution witnesses who, among other things: Firstly, found the body of the deceased at the scene of crime where there was splatter of blood almost everywhere on the floor flowing from the bed where the body was as per the testimony of PW3, PW9, PW10 and PW12; secondly, reported the incident to the police as per the testimony of PW9; and thirdly, saw to it that the body is taken to Madaba Health Centre for examination before it was eventually buried at Mateteleka Village as, respectively, testified by PW10 and PW8. The fact that the evidence is crystal clear that one, Adelhida Mahuwi is dead and that her death was unnatural, the only issue remaining on proof

of the case, effectively, narrows down to whether the remaining evidence on record sufficiently points to the guilt of the appellant. Apart from the confessional statements which we have herein above expunged, the trial court also found that there were other pieces of circumstantial evidence supporting the finding that it is the appellant who killed the deceased. The circumstantial evidence which was considered by the trial court was mainly from the testimony of PW3 and the exhibits on the seized items. Such evidence on account of illegality of the search that was conducted by PW2 contrary to law and wrongful application of the doctrine of recent possession on those items can no longer apply to salvage the prosecution case. The remaining evidence therefore, according to Mr. Mbunda, is insufficient to sustain the conviction. On this, Mr. Mbunda argued that sustaining conviction on the basis of the remaining evidence would amount to convicting the appellant on mere suspicion as the inconclusive circumstantial evidence remaining on record does not irresistibly and unerringly point to the guilt of the appellant. That stance is, vehemently, disputed by the learned Principal State Attorney. Thus, unlike Mr. Mbunda who is of the view that the remaining evidence cannot sustain the conviction, Ms. Tengeneza thinks that the conducts of the appellant before and after the incident point to him as the only one who murdered the deceased on 3r d March, 2019. In relation to

For reasons we have endeavored to demonstrate, we allow the appeal, quash the conviction, and set aside the sentence imposed against the appellant. We order that, he should be released from prison forthwith unless otherwise held for other lawful cause. DATED at SONGEA this 10th 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. Innocent Mbunda, learned counsel for the appellant, Mr. James David Rhobi, learned State Attorney for the Respondent/Republic and MR. Elias