Noel Mfundo Lupulu vs Republic (Criminal Appeal No. 305 of 2023) [2025] TZCA 1068 (13 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA ( CORAM: SEHEL. J.A.. MAKUNGU. J.A. And FELESHI, J J U CRIMINAL APPEAL NO. 305 OF 2023 NOEL MFUNDO LUPULU...........................................................APPELLANT VERSUS THE REPUBLIC.....................................................................RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Arusha) (Kahvoza. J.l dated the 3r d day of May, 2023 in Criminal Sessions Case No. 45 of 2021 JUDGMENT OF THE COURT 29th September, & 13th October, 2025 MAKUNGU, J.A. The appellant, Noel Mfundo Lupulu, was sentenced to suffer death by hanging consequent upon his conviction for murder by the High Court (Kahyoza, J). Dissatisfied, he has preferred this appeal. In order to appreciate, what led to the apprehension, arraignment and conviction of the appellant, it is crucial to state briefly the related background. On the fateful day, Shaban Ally Kidevu (the deceased), met his demise untimely on 20.11.2019. He died a violent death. According to the post mortem examination report the deceased's death was due to excessive bleeding as a result of traumatic brain injury. The deceased l

was a motorcylist commonly known as "bodaboda", transporting passengers. He disappeared on 20.11.2019 and found dead in the bush on 21.11.2019. He was found in a pool of blood and beside where his body laid was a broken protective helmet which rose suspicious that his assailant(s) had robbed his motorcycle after killing him. The prosecution arraigned the appellant and other two accused persons, Wedi Christopher @ Liganga and Kidevu Said @ Ramadhani (who were acquitted) with the information of murder contrary to sections 196 and 197 of the Penal Code. It was alleged that on 20.11.2019 at Msagali - Kivukoni Area - Bwawani Village within Kiteto District in Manyara Region, the appellant and two others did murder one Shabani Ally Kidevu, the deceased. They pleaded not guilty to the information of murder. After a full trial, the appellant was convicted and sentenced as aforesaid mainly relying on the evidence of PW1, PW3 and the appellant's extra judicial statement (exhibit P2). On 30.08.2023, the appellant lodged a memorandum of appeal containing five (5) grounds of complaint. Again, on 27.09.2025 he lodged supplementary memorandum with fifteen (15) grounds which make the total of twenty (20) grounds of complaint. We have opted not to reproduce the grounds of appeal for reasons to be apparent in due course. 2

At the hearing of the appeal, the appellant was represented by Mr. George Yonazi Mzava, learned counsel, whereas the respondent Republic had the services of Mr. Raphael Rwezahula, learned State Attorney, assisted by Mr. Jackson Mayeka and Mr. Michael Martin, both learned State Attorneys. However, before we could allow Mr. Mzava for the appellant to start addressing us on the appeal, Mr. Rwezahula for the respondent rose to inform us that he was conceding on to the appeal. He had reasons for taking that course of action. He conceded on account that, the prosecution failed to prove its case beyond reasonable doubt. He submitted that the learned Judge erred for relying on the extra judicial statement that fell far below the legal threshold. He argued that, the form used to record the extra judicial statement (exhibit P2) was not in conformity with the Guide of the Chief Justice for Justices of the Peace (the GGJP). He implored us to follow our decision in Manoja Masalu and Another v. Republic, [2024] TZCA 409. Mr. Rwezahula beseeched us to expunge from the record (exhibit P2) that was recorded contrary to the law. He contended that once exhibit P2 expunged, there is no other evidence left to link the appellant with the offence. He, therefore, moved us to allow the appeal. 3

Mr. Mzava for the appellant, naturally, had no objection to the respondent's concession. However, he added that Thobias Gasper Kigodi (PW1) was not listed as among of the intended witnesses to be relied upon by the prosecution during the committal proceeding as reflected on pages 86 and 89 of the record of appeal. Following the concession, he prayed that the appeal be allowed. We have considered the counsel submissions and thoroughly scrutinized the record. The issue for our determination are twofold: whether the trial court proceedings are tainted with irregularities that vitiated the trial, and; whether from the evidence on record an inference can be drawn that the appellant was guilty of the murder of the deceased. From the outset, we begin with the undisputed fact that, the nature of the evidence relied upon by the prosecution in this case was circumstantial and confessional. It is on record that, none of the five (5) prosecution witnesses testified to have seen how or by whose act the deceased died. Nonetheless, having revisited the record of appeal, we have observed, in particular at page 62, that the trial Judge relied upon the following piece of evidence to find a conviction on the appellant: 4

"I am o f the firm view that Noel Mfundo, the first accused person made extra judicial statement voluntarily and it does not need corroboration. Thus, Noei Mfundo's extra judicial statement has value to corroborate Insp. Ally Mbaruku Doto (PW3)'s evidence." From the above extract, it is obvious that, after analyzing and evaluating the entire evidence, the trial Judge was satisfied that, the extra judicial statement revealed a culpable role played by the appellant in causing the death of the deceased. The aforesaid observation of the trial Judge takes us to revisiting the evidence on the record so as to gauge if the conviction is worthy. We begin with the evidence of PW1 who testified before the trial court and tendered in evidence the extra judicial statement of the appellant, exhibit P2. On our revisit of the record of appeal, we noted that PW1 was not listed as among of the intended prosecution witnesses during committal proceedings. In that respect, the substance of his evidence was not made known to the appellant. Neither was there a notice for calling him as additional witness. This militates against the mandatory dictates of the provisions of section 289 of Criminal Procedure Act which stipulates as follows:

"No witness whose statement or substance o f evidence was not read at committalproceedings shall be called by the prosecution at the trial unless the prosecution has given a reasonable notice in writing to the accused person or his advocate o f the intention to call such witness." The Court was confronted with a similar scenario in the case of Jumanne Mohamed and 3 Others v. Republic, Criminal Appeal No. 534 of 2015 (unreported). The Court stated that: "We are satisfied that PW9 was not among the prosecution witnesses whose statements were read to the appellants during committal proceedings. Neither could we find a notice in writing by the prosecution to have him called as an additional witness. His evidence was thus taken in contravention o f section 289 (1) (2) and (3) o f the A ct.... In case where evidence o f such person is taken as is the case herein; such evidence is liable to be expunged ... We accordingly expunge the evidence o f PW9 including exhibits P6 and P7 from the record." (See also, Peter Charles Makupila @ Askofu v. Republic, [2021] TZCA 197 and Castor Mwajinga v. Republic, [2020] TZCA

Therefore, since the evidence of PW1 was taken contrary to the law, we expunged it from the record. This as well, befalls the extra judicial statement of the appellant which was adduced in evidence by him. Having expunged the evidence of PW1 and exhibit P2, we see no corroboration on the evidence of PW3 that the appellant was found with the deceased's mobile handset. We say so because the trial Judge found PW3's evidence was wanting for further evidence to support it. For easy of reference, we reproduce the findings of the trial Judge. "The prosecution did not tender evidence from the police Cyber Department to support Insp. Ally Mbaruku Doto (PW3) testimony: One, that the deceased's mobile phone number made a last conversation with cellular phone No. 0626 076 779 on 20.11.2019 at 19:57 hrs; two, that after conducting IMEI analysis, sim card No. 0688 739572 and 0785 993221 allegedly the mobile numbers used by the deceased, were removed from the handset and sim card No. 0626 076779 inserted. The only evidence the prosecution tendered was Noei Mfundo's extra judicial statement as Exh. P2 where he admitted to confiscate the deceased's handset, remove the deceased's sim card and inserted his." 7

It follows that, having expunged PWl's evidence and exhibit P2, the credibility of the remaining evidence relied upon by the prosecution is watered down and there is nothing left to infer and support the charge against the appellant. We find that the prosecution failed to prove the charge to the hilt. Accordingly, we allow the appeal, quash the conviction and set aside the sentence. We order that the appellant be released from prison forthwith unless otherwise lawfully held for any other lawful cause. DATED at ARUSHA this 13th day of October, 2025. B. M. A. SEHEL JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL The Judgment delivered this 13th day of October, 2025 in the presence of Mr. George Mzava, learned counsel for the Appellant, Mr. Stanslaus Halawe, learned State Attorney for the Respondent via virtual Court and Mr. Musa Amry, Court Clerk; is hereby certified as a true copy of the original. 'B D - p - kwywarj l°A ^DEPUTY REGISTRAR COURT OF APPEAL —s y 8