Nashon Alban Msivala vs Republic (Criminal Appeal No. 89 of 2022) [2025] TZCA 1049 (9 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA fCORAM: MWANDAMBO. J.A.. MAIGE. J.A. And MANSOOR. J.A.l CRIMINAL APPEAL NO. 89 OF 2022 NASHON ALBAN MSIVALA.... ....... . ............ . ........ . ........... . ...... APPELLANT VERSUS THE REPUBLIC . .......... . ........ ............... .......... . ................. . RESPONDENT (Appeal from the Decision of the Resident Magistrate's Court of Njombe at Njombe) (L. M. Chamshama. PRM- Extended Jurisdiction^ dated the 25th day of March, 2022 in Extended Criminal Sessions Case No. 04 of 2021 JUDGMENT OF THE COURT 29th September, 6th & 9th October, 2025 MWANDAMBO. 3.A.; The appellant stood trial before the Resident Magistrate's Court of Njombe with extended jurisdiction on an information of murder of Anthonia d/o Ng'umbi, alleged to have occurred on 30 July 2019 at Nyamande Village in Makambako within Njombe Region, The trial court found the appellant guilty as charged and convicted him followed by the mandatory death sentence. Aggrieved, the appellant has appealed to this Court.

IN THE COURT OF APPEAL OF TANZANIA ATIRINGA (CORAM; MWANDAMBO. J.A., MAIGE, 3.A. And MANSOOR. J.A/l CRIMINAL APPEAL NO. 89 OF 2022 NASHON ALBAN MSIVALA..................................... APPELLANT VERSUS THE REPUBLIC .......... ....... ....... ............... ............RESPONDENT (Appeal from the Decision of the Resident Magistrate's Court of Njombe at Njombe) ( L. M. Chamshama. PRM- Extended Jurisdiction^ dated the 25th day of March, 2022 in Extended Criminal Sessions Case No. 04 of 2021 JUDGMENT OF THE COURT 29th September, 6th & 9th October, 2025 MWANDAMBO. J.A.: The appellant stood trial before the Resident Magistrate's Court of Njombe with extended jurisdiction on an information of murder of Anthonia d/o Ng'umbi, alleged to have occurred on 30 July 2018 at Nyamande Village in Makambako within Njombe Region. The trial court found the appellant guilty as charged and convicted him followed by the mandatory death sentence. Aggrieved, the appellant has appealed to this Court.

Briefly, the deceased who had given birth two weeks before she met her death, visited her mother (PW2) in the morning on 30 July 2019. Thereafter, the deceased left to collect a dress from a tailor for her mother leaving behind her baby with PW2. That was the last time PW2 saw her daughter alive. According to PW2, the deceased did not return home as after a long wait which necessitated her going to the tailor later in the day to inquire of her whereabouts only to be told that the deceased had left the place long ago. Subsequently, PW2 visited the deceased's home within the vicinity but in vain for she saw the door to her house locked with a padlock. Within moments, PW2 reported the disappearance of her daughter to a hamlet chairman and later on got hold of the deceased's husband who had the door to the house opened. Upon gaining ingress to the deceased's bedroom, they found her body lying in the bed tied with a wire in the neck. Besides, according to PW2, two tins of beans and her mobile phone went missing from the deceased's house raising suspicion in connection with the death. Doctor Charles Hillary Mbota (PW1) who examined the deceased's body the following day concluded that the cause of death was strangulation on the neck and posted his findings in the post-mortem report admitted in evidence as exhibit PI.

In the course of their investigation, the police got wind that, the beans allegedly missing from the deceased's house had been sold to a business woman (PW3) at Makambako market who confirmed in her testimony having bought 2 V 2 tins from the appellant on 30 July 2019. All the same, the assailant was still at large until 4 January 2020 when, upon a tip from an informer, the appellant was arrested by G. 201 D/CPLJames (PW6) at a pub and taken to the police. Upon interrogation, the appellant is said to have confessed killing the deceased. PW6 recorded his caution statement which he tendered in evidence as exhibit P8 and subsequently taken before Elizabeth Peter Benjamin (PW5); a Hamlet Executive Officer said to be a justice of the peace before whom, the appellant recorded an extra judicial statement admitted in evidence as exhibit P2. Through the confessional statements, the appellant is also said to have confessed to have stolen two tins of beans from the deceased which he sold to PW3 as well as her phone which he subsequently sent for repairs to Said Nyato (PW4); a technician from whom it was retrieved and seized by PW6 who tendered it in evidence as exhibit P6. In his defence, the appellant distanced himself from the accusations against him effectively denying each and every thing in connection with the deceased's death despite which, the learned trial Principal Resident Magistrate sitting with lay assessors found the appellant guilty as charged

based on the confessional statements. In his summing up notes, the learned Principal Resident Magistrate directed the assessors on several vital points of law, in particular, the fact that the case for the prosecution heavily relied on the appellant's confession in his caution and extrajudicial statements which the assessors were in agreement that they were made voluntarily, hence returning a unanimous verdict of guilt. Ultimately, the trial court convicted the appellant as charged followed by the mandatory death sentence. Resenting the trial court's decision, the appellant lodged a memorandum of appeal comprising seven grounds of complaint. At the hearing of the appeal on 29 September 2025, the appellant appeared in person represented by Mr. Jassey Mwamgiga, learned advocate. The respondent Republic was represented by Ms, Xaveria Makombe, learned Senior State Attorney resisting the appeal. Before the commencement of hearing, Mr. Mwamgiga prayed, under rule 73(1) of the Tanzania Court of Appeal Rules, 2009 (the Rules), to substitute the previously lodged memorandum of appeal with a supplementary memorandum containing one ground that is; improper summing up to the assessors by the learned Principal Resident Magistrate on vital points of law.

Addressing the Court on the sole ground, the learned advocate drew our attention to page 135 of the record of appeal on the voluntariness of the caution and extra judicial statements (exhibits P2 and PS respectively) featuring in the judgment not addressed to the assessors thereby affecting their opinions on the appellant's guilt based solely on such statements. The learned advocate contended that, the omission to address the assessors was fatal to the conviction as it was tantamount to excluding the assessors from full participation in the trial contrary to the provisions of section 283 of the Criminal Procedure Act (the CPA). Reinforcing his argument, Mr. Mwamgiga relied on the Court's decision in Batram Nkwera @ Mhesa v. The Director of Public Prosecutions [2022] TZCA 139 and urged the Court to nullify the proceedings from the summing up stage and set aside the judgment, quash the conviction and sentence and remit the record to the trial court for a fresh summing up to the assessors before composing a fresh judgment. Replying, Ms. Makombe conceded the omission to address the assessors on the voluntariness of the confession the appellant made to the police and the justice of peace but argued that such omission was not fatal to the appellant's conviction as it did not occasion any miscarriage of justice. Counsel referred to our decision in Shimbi Daud @ Kufwa & Others v. Republic [2023] TZCA 17900 for the proposition

that the omission to address the assessors on vital points of law is a procedural irregularity in the proceedings which cannot invalidate the conviction unless it results in miscarriage of justice. The learned Senior State Attorney impressed upon the Court to hold that the omission in the instant appeal did not affect the quality of the assessors' opinions considering that, each gave his opinion fully aware that the appellant made the confessions freely to both the police and justice of the peace. In rebuttal, Mr. Mwamgiga reiterated his stance that the omission had the effect of occasioning miscarriage of justice consideri ng that there was no direct evidence implicating the appellant with the deceased's murder other than the impugned confession. When we retired for deliberation, it became necessary to recall the parties to address us on the evidence generally if we were to take a different view on the sole ground in the supplementary memorandum of appeal. That was regardless of Mr. Mwamgiga's fleeting belief on the sustainability of the grounds of appeal previously filed by the appellant. At the resumed hearing on 6 October 2025, the appellant was in attendance represented by his advocate whereas, this time around, Ms. Pienzia Nichombe, learned Principal State Attorney, represented the respondent Republic.

Addressing the Court, Mr. Mwamgiga and Ms. Nichombe were unanimous on the invalidity of the extra judicial statement recorded by a Hamlet Executive Officer who is not among the persons authorized by the Chief Justice's Circular nor by section 51 and 52 of the Magistrate's Courts Act (the MCA), The learned counsel thus urged that the appellant's conviction based on the extra judicial statement (exhibit P2) was invalid and invited the Court to expunge it from the record. Nevertheless, the learned counsel urged that, the remaining evidence through the caution statement (exhibit P8) was sufficient to prove the case against the appellant. Under the circumstances, it was urged that there was justification for an order directing the trial court to compose a fresh judgment after making fresh summing up to the assessors incorporating voluntariness of the caution statement. At the Court's prompting, Ms. Nichombe urged that, despite the indication that the cautioned statement was made under section 57 or 58 of the CPA, the same was actually made pursuant to the latter provision free from any blemishes. We shall now turn our attention to a discussion on the sole grounds argued by the appellant's advocate and if sustainable, direct the way forward. 7

It is striking that, despite Ms. Makombe conceding' that the summing up notes were inadequate, we have taken a different view. We shall have page 90 of the record speak for itself: "Ladies and Gentleman ; as said earlier that in this case the prosecution heavily relied on the confessions made by the accused, the extra ju dicial statem ent and the cautioned statement, the extra ju d icial was objected but the cautioned statement was adm itted without any objection, in law if any statem ent is repudiated the court should take a ll the necessary precautions before convicting the accused on a repudiated sentence, that it should satisfies itse lf that the statem ent was recorded freely and nothing but the truth....Therefore, if you think that the statem ent were made freely, you should advise me on this . ..." Mindful of the above, Assessor No. 1 opined: ";//? m y opin ion, the accused is the one who killed the deceased as per the caution statem ent which I think was obtained freely." [A t page 101 o f the record]. That was followed by Assessor No. 2 whose opinion was: "... the accused [directly] confessed that he is the one who killed ANTONIA D/O NG'UMBI, the 8

caution statem ent and Extra Judicial statem ent are [both ] similar,, this shows that the accused made his statements before the Justice o f peace and the Police voluntarily..."[ at page 101 and 102 o f the record]. Concurring with her colleagues, Jenifer Mwanzaiila, Assessor No. 3 advised: '..PW 5 and PW6 are the one who recorded the statem ent o f the accused, it is dear that the accused confessed voluntarily...." [ at page 103]. Against the above, the learned Principal Resident Magistrate stated the following in the impugned judgment: "...It is dear that the caution statem ent was adm itted without any objection from the accused, this shows that the same was made freely and voluntarily ■ the issue that the accused was beaten was not raised during the admission o f the caution statem ent but was raised in the defence but the accused failed to show the evidence. Further although the extra ju d icial statem ent was o b je c te d I have no doubt at a ll that the two statem ents were freely, voluntarily made, they have sim ilar contents [which] shows that they are 9

nothing but the truth." [ A t page 135 o f the record]. With respect, in view of the above, the complaint against the summing up notes being inadequate cannot be correct as the record shows clearly that the learned Principal Resident Magistrate advised the lay assessors on the principle that an accused person can be convicted solely on his confession if it is voluntarily made and speaks nothing but the truth. We are thus satisfied that, despite the concession by the learned Senior State Attorney on the alleged omission, the complaint in the sole ground is without any merit. We accordingly dismiss it. Having dismissed the sole ground in the appeal, that would have been sufficient to dispose of the appeal. However, in view of what will become dear shortly, the interest of justice dictated that we go an extra mile by looking at the record to satisfy ourselves on the soundness of the conviction on the offence of murder attracting death sentence on the basis of the confessional statements. First and foremost, we are in agreement with the submission by the learned counsel that neither the Chief justice's circular nor sections 51 and 52 of the MCA recognises hamlet executive officers as justices of peace before whom criminal suspects record their extra judicial 10

statements. Relevant for our purpose are sections 51 and 52 of the MCA which stipulate: " 51(1) Every specified officer o f a district, town ; m unicipal or city council shall be a justice o f the peace for the d istrict in which such council has jurisdiction. (2) The M inister may appoint any fit and proper person to be a justice o f the peace for the district in which such person is ordinarily resident (3) Notwithstanding the provisions o f subsection (1) or (2) o f this section■ , the M inister may\ by notice published in the Gazette, in any case in which he considers such an appointment to be desirable, appoint a specified officer or person appointed a justice o f the peace under subsection (2) to be a justice o f the peace for more than one district. (4) In this section, "specified officer" means the secretary to the district, town, m unicipal or city council and includes the secretary to a divisional committee thereof. Assignm ent o fjustices o fpeace to court houses Arrest by or on order o fjustice o fpeace Justice o f peace may compel appearance o f persons accused 52. The appropriate ju d icial authority shall assign everyjustice o f the peace to a prim ary or district court house in the district for which he is appointed. " 11

It is glaring from the above that, PW5 does not fall among the specified officers as justice of the peace. Neither is there anything on record proving that she was such justice of the peace assigned by the judicial authority to a primary court or district court house in the district where she was appointed. Consequently, exhibit P2 purportedly made by the appellant before PW5 who had no authority to record extra judicial statements was invalid and incapable of grounding the appellant's conviction. As urged by the learned counsel, the invalid extra judicial statement in exhibit P2 is hereby expunged from the record. Next for our consideration is whether the appellant's conviction on the basis of exhibit P8 tendered by PW6 was safe as suggested by Ms. Nichombe and Mr. Mwamgiga. Despite our misgivings in the manner the caution statement was recorded, we take the view that its probity is not free from dent considering that, PW6's evidence and the appellant's statement are not talking to each other on the date when the appellant is said to have led the police to Said Nyato (PW4) a technician to whom the mobile phone allegedly stolen from the deceased was taken for repairs. According to PW6, after recording the statement on4January 2020 which ended at 19.35 hours, took the appellant back to the lock up and the following day, the appellant led the police to PW4 where the deceased's

mobile phone was retrieved. In the appellant's own words recorded on 4 January 2020, he stated: " .... Mnamo tarehe 04/01/2020 m ajira ya saa 16.45 hrs nikiwa mtaa wa Uzunguni kilabuni nataka kuangalia mpira nilkamatwa na askari p o lisi kwa tuhuma za m auaji ya ANTHONIA D/o NG'UMBI ya tarehe 30/07/2019 na kufikishwa kituo cha polisi Makambako na kuhojiwa kuhusiana na mauaji hayo ambapo n iiikiri kutenda m auaji ya ANTHONIA D/o NG'UMBI na mwisho niiiwapeieka askari p o lisi kwa SAID S/o NYA TO ambaye n i fundi simu Hi kuchukua simu hiyo ya ANTHONIA D/o NG'UMBI na hatimaye niliandikiwa maeiezo yangu kwa njia ya onyo baada yakupewa haki zangu. Haya ndiyo maeiezo yangu n i sahihi kama nilivyoeleza. "[a t page 124 o f the record] The substance of the above in English language is to the effect that the appellant was arrested by police on 4/01/2020 at 16.45 hours around Uzunguni club getting ready for watching a football match. He was taken to Makambako Police station in connection with the murder of ANTHONIA D/o NG'UMBI on 30 July 2019 where he confessed having been responsible for the deceased's murder. Subsequently, the appellant led the police to Said Nyato, a technician to whom he had sent a mobile phone 13

stolen from the deceased for repairs and thereafter, he recorded his caution statement. What emerges from the foregoing is that, contrary to what is shown in exhibit P8, it is highly unlikely that the appellant recorded the statement on 4 January 2020. A fleeting reading of the statement shows that the appellant referred to an arrest in the past rather than a few hours before. Besides, it is hard to believe which, between PW6's evidence showing that he recorded exhibit P8 on 4 January 2020 before the appellant led him to PW4 on 5 January 2020 and, the appellant's statement indicating that the caution statement was recorded by PW6 after leading the police to PW4 where a mobile phone allegedly taken from the deceased was retrieved is true. Regardless of the fact that the trial court found the caution statement to have been made voluntarily, the question falling immediately for our consideration is, whether it was safe for the trial court to rely on it grounding the appellant's conviction which takes us to the Court's decision in Juma Magori @ Patrick and 4 Others v. Republic [2015] TZCA 456. In that decision, the Court discussed, amongst others, ascertainment of confessional statements amounting to admission and referred to a decision of the Supreme Court of Nigeria in Ikechukwu

Okoh v. The state (2014) LPER-22589 (SC) which quoted with approval a UK decision in R.V. Sykes (1913) 1 Cr. App. Report 233 on the tests for determining probity and weight to be accorded to confessional Statements. The relevant part of the latter case quoted with approval by the Court runs: "The questions the court must be able to answer before it can rely on a confessional statem ent to convict an Accused person .... are as follows: (a) Is there anything outside it to show that it is true? (b) Is it corroborated? (c) Are the factors stated in it true as far as can be tested? (d) Was the Accused the man who had the opportunity o f committing the offence? '(e) Is the confession possible? (f) Is it consistent with other facts which have been ascertained and proved?" (At page 22)..." The above questions were, in our view, very pertinent to the trial court before acting on exhibit P8 in convicting the appellant. We shall subject exhibit P8 to questions (a), (b), (c) and (f) above and see whether there is anything outside it to show that it is true, or that did it require corroboration and if so, was it corroborated? and, whether the facts stated therein are true as far as can be tested. We shall begin with the variance between PW6 and exhibit P7 on the tinning of the recording of the statement, that is, was it after the

appellant had led the police to PW5 on 5 January 2020? If that be the case which appears to be logical and consistent with the tenor of the statement referring to an event done in the past, PW6's evidence that he recorded the caution statement on 4 January 2020 a date inserted in exhibit P7 cannot be correct. That means, despite the fact that exhibit P8 was admitted without any objection, that in itself did not guarantee its probity and reliability in grounding the appellant's conviction on the charged offence. It will be recalled that, in his defence, while admitting his arrest on 4 January 2020 and taken to the police, the appellant denied having made any statement confessing the deceased's murder. He stated in his evidence in chief: ",.. A t the police station, they slapped me and told me that I am a murderer at Nyamande. Later they told me that , I K illed Antonia Ng'umbi. I don't know a person called Antonia Ng'um bi..." [ at page 80 o f the record] In cross- examination, he stated that he was beaten by James at the police and later in re-examination, the appellant told the trial court that James (PW6) used force, beat him and only wrote his names on the statement. The effect of his defence which the trial court treated as an afterthought was to repudiate the caution statement which should have 16

informed the trial court on the danger of acting on it without corroborative evidence on the authority of Tuwarnoi v, Uganda [1967] 1 E.A. 84. It is significant that that notwithstanding the appellant repudiating the caution statement and the objection against the extra judicial statement, the court took the view that the two documents complimented each other on the confession which it found to be nothing but the truth. Be it as it may, neither of them could have grounded the conviction considering that we have already expunged exhibit P2 from the record. Aside the noted doubtful probity in exhibit P8, in the absence of the extra judicial statement, there is no other independent evidence to corroborate the repudiated confession. Curiously, although PW2 mentioned one Boniface Kapinga who is said to be the deceased's husband as the one who had the key to the locked door of the deceased's house and opened it before they found her dead body lying on the bed, that person features nowhere in the record either as a suspect or a witness. That, in our view, dented the case for the prosecution on the charged offence in that, PW2's mention of Kapinga who had the key to the house where the deceased's body was recovered raises more doubt that, someone else than the appellant might have murdered the deceased.

In the light of the foregoing, we allow the appeal on a different ground canvassed by the appellant's advocate and hold that the case against the appellant was not proved on the basis of exhibit P8 for want of probity. Consequently, we quash the conviction and set aside the death sentence with the result that, the appellant shall be released forthwith from custody unless lawfully held therein. DATED at IRINGA this 8th day of October, 2025. Judgment delivered this 9th day of October, 2025 in the presence of Appellant in person - unrepresented, Mr. Amani Kyando, learned State Attorney for the Respondent/Republic and Leopard Mabugo, Court Clerk is hereby certified as a true copy of the original. L. J. S. MWANDAMBO JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL DEPUTY REGISTRAR COURT OF APPEAL