Kija Juma @ Masasila & Manoni Sumaku @ Mashulubu vs Republic (Criminal Appeal No. 322 of 2023) [2025] TZCA 1028 (7 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: KEREFU, J.A., MWAMPASHI, 3.A. And AGATHO. J.A.1 CRIMINAL APPEAL NO. 322 OF 2023 KIJA JUMA @ MASASILA ............. MANONI SUMAKU @ MASHULUBU . 1 st APPELLANT 2nd APPELLANT VERSUS THE REPUBLIC RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Musoma) 30* September & 7th October, 2025 MWAMPASHI. J.A.: Kija Juma @ Masasila and Manoni Sumaku @ Mashulubu, the appellants herein, were found by the High Court of Tanzania at Musoma (Komba, J) to have murdered one Wankuru d/o Mwita (the Deceased) on 13.01.2022 at Rigicha Village within the District of Serengeti in Mara Region, contrary to sections 195 and 196 of the Penal Code. Having been duly convicted, they were sentenced to suffer death by hanging. Aggrieved, they have preferred the instant appeal to this Court. It was undisputable that the deceased was murdered on the night of 13.01.2022. Her dead body was found in her house in the morning (Komba, J.) dated the 27th day of February, 2023 in Criminal Sessions Case No. 164 of 2022 JUDGMENT OF THE COURT l

hours of 14.01.2022. According to the Mpakani Street Chairperson Amos Kibadurwa Nguiima (PW1), having been informed of the demise of the deceased who was a resident in his street, he rushed to the house of the deceased and upon getting inside the house, he saw the dead body of the deceased drenched in blood lying on the bed. He reported the incident to the police and it was H. 5098 D/C Daniel (PW2), a police officer from Mugumu Police Station, who rushed to the scene of crime while in company of other police officers including F. 3785 D/Sgt. Proches (PW4). According to PW2, after getting at the scene of crime, the information gathered revealed the names of the appellants and two other persons who are not party to this appeal, as key suspects leading to their instant arrest. PW2 drew the sketch map of the scene of crime which was tendered in evidence by him as exhibit PI. PW4's testimony was to the effect that, he was one of the police officers who went to Rigicha on 15.01.2022 to arrest persons who were being suspected to have murdered the deceased. He told the trial court that, they arrived at Rigicha at around 02:00 hours and further that up to 05:00 hours, they had managed to arrest four suspects including the appellants. Thereafter, at around 07:15 hours, they went back to Mugumu Police Station where, at around 08:00 hours, he was directed to record the cautioned statement of the 2n d appellant which was tendered in

evidence by him as Exhibit P3. In cross-examination, PW4 insisted that the appellants were arrested on 15.01.2022 at around 02:00 hours and that he recorded the 2n d appellant's cautioned statement at around 08:03 hours. An autopsy on the deceased's body was performed at the house of the deceased by Hamis Abdul Kabila (PW3), a clinical officer from Rigicha Health Centre on 14.01.2022. According to PW3 and the post mortem examination report which was admitted in evidence as exhibit P2, the cause of death of the deceased who had sustained two deep cut wounds on the fore head and at the back of the head, was severe bleeding. A full picture of what befell the deceased was given by the appellants in their defence evidence. Though, the appellants had initially disassociated themselves from the death of the deceased, in their respective defence evidence, they opened up and told the trial court why and how they conspired, planned and eventually killed the deceased. The 1 s t appellant explained that the deceased was her mother in law who was staying with her. She stated that, she suspected that the deceased was a witch who was bewitching her son and for that reason she approached the 2n dappellant and asked him to kill the deceased. On the fateful night when the deceased had retired to bed, the 1s t appellant opened the door to the 3

deceased's house for the 2n d appellant who used a machete to cut the deceased on the head. In his defence evidence, the 2n dappellant was on the same page with the 1 s t appellant. He added that, the 1s t appellant was his lover and that he was to be paid Tshs. 500,000/= by her for killing the deceased. He also reiterated what was testified by PW1 insisting that it was the 1 s t appellant who opened the door to the deceased's house for him and that he cut the deceased by a machete twice on the head. Admittedly, the appellants' conviction was considerably based on their own admission in their respective defence evidence which was to the effect that they murderer the deceased. Having reiterated the principle that a confession freely made by an accused person is the best evidence in criminal trials, the trial court also found it established that the appellants had formed common intention to kill the deceased. It was also found that, owing to the kind of the murder weapon, that is, the machete, and the part of the body the blows were directed, the appellants killed the deceased with malice aforethought. The appellants were thus, convicted and sentenced in the manner indicated earlier hence the instant appeal. At the hearing of the appeal, while the appellants were represented by Mr. Paul B. Obwana, learned advocate, the respondent Republic had

the services of Ms. Monica Alex Hokororo, learned Principal State Attorney assisted by Mses. Agma Agrey Haule and Beatrice Timothy Mgumba, learned State Attorneys. Initially, in support of their appeal, the appellants had, on 25.07.2023 and 27.01.2025, filed two memoranda of appeal comprising a total of 8 grounds. The said two memoranda were however, abandoned by Mr. Obwana who, in terms of rule 73 (2) of the Tanzania Court of Appeal Rules, 2009, had on 26.09.2025, in substitution of the said two memoranda, filed a supplementary memorandum of appeal comprised of three grounds of complaints which can conveniently be paraphrased as follows: One, that the appellants who had conflicting interest were represented by the same advocate, Two, that a prima facie case was not established by the prosecution for the appellants to be required to make their defence, and Three, that the case against the appellants was not proved beyond reasonable doubt. Submitting on the 1 st ground of appeal, Mr. Obwana argued that, for purposes of according the appellants a fair hearing, the appellants who had conflicting interest ought to have been represented by separate advocates and not by the same advocate. To substantiate his argument, Mr. Obwana referred us to page 13 of the record of appeal, where it is indicated that, during the preliminary hearing, the appellants with the 5

other two accused persons who were jointly charged with the appellants but who were acquitted, were all represented by Mr. Samson Samo, learned advocate. He also took us to page 24 of the record of appeal, where it is on record that, at the beginning and throughout the trial, the appellants were represented by Mr. Onyango Otieno, learned advocate while the two other accused persons continued to have the services of Mr. Soma, learned advocate. It was also insisted that, the appellants had conflicting interest because they implicated each other. On this, Mr. Obwana urged us to revisit the 2n dappellant's cautioned statement (exhibit P3) and the appellants' respective defence evidence. Placing reliance on the decision of the Court in Leonard Ngoso v. Republic [2023] TZCA 17778, it was insisted by Mr. Obwana that, the representation of the appellants by the same advocate, denied them their constitutional right to a fair hearing. On the 2n dground of complaint, Mr. Obwana argued that, the appellants ought to have not been required to defend themselves because no prima facie case was established for them to be required to give their defence evidence. He contended that, the trial court ought to have acquitted the appellants for being found with no case to answer. Mr. Obwana further contended that the fact that there was no evidence establishing a prima facie case against the appellant was confirmed by the trial Judge who

concluded in the judgment that, the evidence of all prosecution witnesses was contradictory, inconsistent and unreliable. Mr. Obwana wondered how the appellants could be found with a case to answer on the basis of the same evidence which, in the judgment, was discarded for being contradictory and unreliable. Turning to the last ground of appeal, it was argued by Mr. Obwana that, as it was properly found by the trial Judge, the evidence led by the prosecution was contradictory and unreliable and could not support conviction. He pointed out that, the prosecution failed to discharge its duty of proving the case against the appellants beyond reasonable doubt. It was further contended that, it was wrong for the appellants to ~ be convicted based on their admission of the offence in their defence evidence because by doing so the trial Judge shifted the burden of proof to the appellant. He insisted that, the appellants were convicted not on the strength of the prosecution evidence but on the weakness of their defence. Mr. Obwana further submitted that, the appellants' defence evidence did no amount to confession and was contradicted by the 2n d appellant's cautioned statement. He thus, prayed for the appeal to be allowed because the case against the appellants was not proved to the hilt as required by the law.

For the respondent, it was Ms. Mgumba who took the floor. Having expressed the respondent's stance of opposing the appeal, Ms. Mgumba began by responding to the 1s t ground of appeal arguing that, the appellants had no conflicting interest and being represented by the same advocate was thus not prejudicial to them and did not render the trial unfair. She pointed out that, the appellants admitted that they conspired and jointly murdered the deceased. Ms. Mgumba argued further that, the case of Leonard Ngoso (supra) is distinguishable from the case at hand because in that case there was a conflict of interest as one of them implicated the other in his cautioned statement which is not the case in the instant appeal. She thus urged us to dismiss the 1 st ground.. ....... Regarding the 2n dground of appeal, it was argued by Ms. Mgumba that the trial Judge properly found the appellants with a case to answer. It was pointed out that, from the wording of the relevant ruling, the appellants were not found guilty but, based on the prosecution evidence on record, the trial Judge was of the view that, a prima facie case had been made requiring them to give their respective defence. On the last ground of complaint that the case against the appellants was not proved to the required standard, it was submitted by Ms. Mgumba that, based on the evidence on record, the case against the appellants was proved to the hiit. She insisted that, all the ingredients of the offence 8

of murder were proved in that, the death of the deceased was not in dispute as it was for the fact that the death was unnatural which was proved by the evidence led by the prosecution. It was further pointed out that, the proof that the deceased was killed by the appellants came from the appellants themselves who, in their respective defence evidence, admitted to have killed the deceased. On this, Ms. Mgumba referred us to the decisions of the Court in Mohamed Haruna Mtupeni v. Republic [2010] TZCA 141 and Hamis Chuma Hando Mhoja v. Republic [2021] TZCA 395. As on malice aforethought, Ms. Mgumba argued that, the same was proved by the kind of the weapon used in killing the deceased, that is, the machete, the number of blows and the part of the deceased's, body where the blows were directed. Ms. Mgumba prayed for the appeal to be dismissed for being baseless as the case against the appellants was proved to the hilt bearing in mind that, apart from the prosecution evidence, in their respective defence evidence, the appellants admitted to have murdered the deceased. In his brief rejoinder, Mr. Obwana reiterated his previous arguments that the appellants were denied a fair hearing for being represented by the same advocate, that no prima facie case was made and that the case against the appellants was not proved beyond reasonable doubt as the

conviction was wrongly based on the appellants' defence while the prosecution evidence had already been found unreliable and insufficient. The above being the arguments for and against the appeal, the ball is now in our court to determine the grounds and decide whether the appeal is meritorious or not. However, before we embark on that task, we should firstly restate the salutary principle of law that, a first appeal is in the form of re-hearing. This being a first appeal, the Court is thus, duty bound to re-evaluate the entire evidence on record, subject it to a critical scrutiny and if warranted, arrive at its own conclusion of fact. See- D.R. Pandya v. R [1957] E.A. 336, Iddi Shaban @ Amasi v. Republic [2008] TZCA135 and The Director of Public Prosecutions v. Stephen Gerald Sipuka [2021] TZCA 330. Beginning with the first ground of complaint that the appellants were not accorded a fair hearing on account that they were represented by the same advocate while they had conflicting interest, with profound respect, we are not in agreement with Mr. Obwana that, the appellants had any conflict of interest As rightly argued by Ms. Mgumba, the appellants' line of defence evidence was in common. Further, in his cautioned statement (exhibit P3), the 2n d appellant did not only implicate the 1s t appellant with the murder in question but he also implicated himself. He explained on

how he was approached by the 1 s t appellant and was asked to assist her in getting rid of the deceased, which he said he agreed. The fact that the appellants had no conflict of interest became more vivid in their respective defence wherein the appellants versions of what happened and on how each of them participated in killing the deceased, supported each other in all fours. Under the circumstances of this case, where the appellants had no conflict of interest, the fact that the appellants were represented by the same advocate did not prejudice any of the appellants and it cannot be said that the right to a fair hearing was not accorded to them. We also agree with Ms. Mgumba that, the facts of the instant case differ from the facts in the case of Leonard Ngoso (supra) hence the cases are distinguishable. In Leonard Ngoso (supra), the accused persons had a conflict of interest as one of them had, in his cautioned statement, implicated the other with the offence and at the preliminary hearing, the High Court, having noted the conflicting interest, had directed that each of them be assigned a different advocate, which was not done as one advocate was assigned to represent the accused persons. The 1 st ground of appeal is thus, dismissed for being baseless. The 2n d ground of complaint should not detain us. We have examined the evidence adduced by the prosecution before the closure of i t

its case and observed that the trial Judge cannot be faulted in finding that, on the basis of the prosecution evidence on record, a prima facie case was made for the appellants to be required to make their defence in terms of section 231 (1) of the Criminal Procedure Act, Cap. 20 (the CPA). As on how it can be said that a prima facie c ase has been made, the Court in the case of The Director of Public Prosecutions v. Morgan Malik and Another [2013] TZCA 2151, stated that: "So, on the principles set out in BHATT's and MURIMI's cases, we think that a prima fade case is made out if, unless shaken, it is sufficient to convict an accused person with the offence with which he is charged or kindred cognate minor one", [Emphasis added] It is also our considered view that, Mr. Obwana's argument that because in the judgment, the trial Judge found that the prosecution evidence was contradictory and unreliable, then she ought not to have found the appellants with a case to answer, implausible. Though, we are not in agreement with the trial Judge's conclusion that the whole prosecution evidence on record was unreliable, as it will be demonstrated in course of determining the last ground of appeal, we wish to state that the standard or criterion in determining whether an accused person has a

case to answer or not, is not the same in determining whether he is guilty or not. The evidence which is sufficient to find that a prima facie case has been made, may, when shaken by defence evidence, be insufficient to found conviction. On the basis of the foregoing, the 2n dground of appeal fails and it is accordingly dismissed. Turning to the last ground of complaint that, the case against the appellants was not proved beyond reasonable doubt, we would firstly like to point out that, though, the trial Judge finally reached at the correct verdict, there was no proper evaluation of the evidence on record leading to wrong, contradictory, misguided and problematic conclusions. For instance, having correctly found that, there was sufficient and reliable evidence from PW1, PW2, PW3, the post-mortem report (exhibit P2) and from the appellants, proving not only the death of the deceased but also that the death was unnatural (see page 90 of the record of appeal), the trial Judge, at page 95 of the record of appeal, made u turn and concluded that: 7 / 7 this case, I find difficult to believe testimonies of PW2, PW3 and PW4 as they contradicted each other on important points. This makes their testimonies to contain [lies] at some points . I also 13

find difficult to beiieve the contents o f Exh. P3.1 have gone through the testimonies of the prosecution witnesses, their testimonies are tainted with contradictions, and it is not safe for the court to reiy upon their testimonies . There is no evidence without doubt to support the conviction of accused persons from prosecution". [Emphasis added]. It is our considered view that, looking at the prosecution evidence given by PW1, PW2 and PW3 together with the exhibits tendered, it is clear that, the trial Judge misdirected herself in concluding that the whole prosecution evidence was worthless. Having re-examined the evidence on record, we find that the evidence which ought to have been discarded was that of PW4 and Exhibit P3 (cautioned statement) and not the whole prosecution evidence. PW4's testimony was unreliable because while all other prosecution witnesses, that is, PW1, PW2, PW3 and even the appellants, testified that the police got at the scene of crime and the appellants were arrested on 14.01.2022 surprisingly, contrary to that, his version of the story was that he and other police officers including PW2 got at the scene of crime and the appellants were arrested on 15.01.2022 at night hours. He also insisted that he recorded the 2n d appellant's cautioned statement on 15.01.2022 at around 08:03 hours. PW4's evidence sharply contradicted the evidence given by PW1, PW2 and PW3.

Under the above explained circumstances, where for reasons known to himself, it is only PW4 who came out with his own version of the story contrary to what was testified by all other prosecution witnesses, it is only PW4's testimony which was doubtful and unreliable hence liable for being discarded. It is our considered view that had the trial Judge properly evaluated the evidence on record and directed her mind to the fact that it was only PW4's evidence which was unreliable, she could not have discarded the whole prosecution evidence as even the 2n d appellant's cautioned statement, she later relied upon, was part of the prosecution evidence. For the reason that PW4's evidence was unreliable as pointed out above, we hereby discard the same. In the same vein, the cautioned statement (exhibit P3) which was recorded on 15.01.2022 by PW4 while its maker, that is, the 2n dappellant, was arrested on 14.01.2022, is hereby expunged for being recorded beyond the prescribed period of 4 hours as required by section 50 (1) (b) of the CPA. Going back to the issue whether the case against the appellants was proved to the hilt or not, it is our firm finding that the remaining prosecution evidence from PW1, PW2, PW3 and Exhibits PI and P2 which was supplemented by the appellants' own admission, in their respective 15

defence evidence, of committing the murder in question, sufficiently proved the case against the appellants beyond any shadow of doubt. As rightly argued by Ms. Mgumba, the facts that the deceased died and that her death was unnatural was not in dispute and the evidence from PW1, PW2, PW3 and Exhibit P2 proved the same. Regarding the other important ingredient of murder, that is, whether it was the appellants who caused the death, the appellants clearly admitted in their respective defence evidence that they are the ones who killed the deceased. At page 56 of the record of appeal, the 1 st appellant testified that: "/ have been in Rigicha for 12 years now. Am a farmer, am a mother o f 6 children. On 13/01/2022 I was at home in the evening, at night, there was an event, murder event occurred at my home. When the kiiiing happened it was night around 21.00 hrs. I was with Manoni who came at my piace and agreed to kiii Wankuru Mwita Nyamuhanga. After the kiiiing we disappeared at home. Thatisaii". In cross-examination at page 57, the 1s t appellant is on record stating that: "Yes, I kiiled, me and Manoni. I agree me and Manoni to kiii my mother in iaw. I associated her 16

with witchcraft because my son was getting sick for iong time and I decided to take her away as she was practicing witchcraft... It was 10/01/2022 when I made plans with Manoni. Manoni came at my place during day time. Then we planned to kill her so that my child can get healing . The agreed date was 13/01/2022.... Manoni came alone because Wankuru was not asleep he went back and came again at around 21:00 hrs with machete he entered and started beating my mother in law who is Wankuru me I was standing ready to disappear after the event.. After the killing I disappeared with Manoni" On his part, the 2n d appellant, at page 59 of the record pf appeal, testified that: "On 13/01/2022 there was a killing in our village that followed after Kija informed me that her mother in law (Wankuru) practiced witchcraft and she bewitched her child. On 13.01.20221 went to Kija's place we agreed she will pay me 500,000/= after completion of that activity... We were only two me and Kija around21:00 hrs we wentstraight to Wankuru house , Kija opened the door, I was holding a panga and Kija was holding a torch. Wankuru was sleeping backward I cut her head 17

and when she turn around to see what was going on I cut again in front of the head. That is a/i As it can clearly be seen in the above reproduced part of the appellants' defence evidence, the appellants, in unreserved and clear terms, admitted to have conspired and planned to kill the deceased. The killing was done with malice aforethought as per appellants' own averment and as it can be inferred from the kind of weapon used, that is, the machete, and from the number of blows and the sensitivity of the part of the body the blows were directed, that is, the head. The appellants' admission to have murdered the deceased was the very best evidence which supported the prosecution case. In Mohamed Haruna @ Mtupeni & Majaliwa Seif Mtupeni v. Republic [2015] TZCA 362, the Court stated that: "We take it to be one of the settied principles of the law that if an accused person in the course of his defence gives evidence which carries the prosecution case further, the court is entitled to take into account such evidence o f the accused in deciding on the question of his guilt" See also- Paulo Maduka & Others v. Republic [2009] TZCA. 69, Mchana s/o Mohamed v. Republic [2024] TZCA. 718 and Robert Berenado Steven v. Republic [2025] TZCA. 212.

In the event, and on the basis of the above findings, we are satisfied that the case against the appellants was proved beyond reasonable doubt as the law requires. The conviction and sentence imposed on the appellants by the trial court cannot be faulted. Consequently, the appeal fails and it is hereby dismissed in its entirety. DATED at MUSOMA this 6t h day of October, 2025. R. J. KEREFU JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL The Judgment delivered this 7t h day of October, 2025 2025 in the presence of the Appellant in person and Ms. Joyce Godfrey Matimbwi, learned State Attorney for the Respondent/Republic, Shabani Kinyai, Court Clerk; is hereby certified as a true copy of the original. C. DEPUTY REGISTRAR COURT OF APPEAL 19