Samwel Koroso Salim @ Ghati Bu Hoko vs Republic (Criminal Appeal No 540 of 2022) [2025] TZCA 1020 (6 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: KEREFU. 3.A.. MWAMPASHI. J.A. And AGATHO. J.A.1 CRIMINAL APPEAL NO 540 OF 2022 SAMWEL KOROSO SALIM @GHATI BU H O KO ......................................APPELLANT VERSUS THE REPUBLIC......................................................................................RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma) (M fo gwa, J) dated the 3rd day of August, 2022 in Criminal Session No. 117 of 2021 JUDGMENT OF THE COURT 29th September & 6th October, 2025 AGATHO, J.A. The appellant, seeks to assail the decision of the High Court of Tanzania sitting at Musoma in Criminal Session Case No. 117 of 2021 in which the information was laid against him for the murder of Rhobi Busere Mwita under sections 196 and 197 of the Penal Code, Cap 16. He denied the charges and after full trial he was convicted and sentenced to death by hanging. According to the information laid against the appellant before the trial court, on the 12/10/2017 at Nyamuhunda Village within Tarime District in Mara Region, he murdered one Rhobi w/o Busere Mwita (the

deceased). When the appellant was arraigned before the trial court, he denied the allegation and the trial ensued. The denial prompted the prosecution to parade four witnesses, namely, Pius Chacha Mwita (PW1); □so Busere Mwita (PW2); Devota Ernest Katunzi (PW3); and F 8076 D/Sgt Abdallah (PW4). They also tendered through P3 a postmortem report as exhibit PI. In his oral account, PW1, the deceased's biological son, testified that the appellant was his mother's lover, who sometimes lived at their home. On the fateful night, with the aid of solar security lights, PW1 was able to identify the deceased and the appellant who went to their home place. The deceased while weeping, knocked his window and gave him rice and shoes. The appellant was compelling her to quickly leave the place, so the deceased went away with the appellant who was drunk and that was it. She never returned home alive again. The body of the deceased was later found lying on the farm grounds as testified by PW2. In her examination of the deceased's body on 13/10/2017, PW3, a medical doctor, found her with bruises and swelling around the neck and established that her death was caused by strangulation. Also, that she had died within 24 hours. She prepared and filed the postmortem report and handed it to the police that mounted the investigation and search for the appellant who, as per PW l's testimony 2

was the prime suspect. The said investigation was conducted by PW4. He informed the court that, after almost two years from the date of the incident, the appellant was, on the 31/08/2020, finally arrested by the deceased's relatives namely, Mwita Busere and others and brought to Sirari Police Station. It was on these facts that the appellant was arraigned before the High court indicted with charges of murder. In his defence, the appellant raised a defence of alibi that, on 11th to 12th October, 2017 he was at Nyamuhunda Village, Nyambega hamlet in the ward of Mwema within Tarime District taking care of his sick wife, one Joyce Samwel. He denied having any extra marital relationship with the deceased whom he had known as the wife of one Busere Mwita. He testified to have been informed about the death of the deceased and that he attended the funeral for an hour and immediately went back home to attend his sick wife. In the end, he associated his arrest with the grudges that the deceased's family had with him upon being notified that he was the one who tipped the police force on their involvement in Bhangi business. Nonetheless, the High Court found that a strong case was established against him, convicted him for murder and sentenced him as indicated earlier. Believing to be innocent, on 10/06/2025, the appellant in agreement with his advocate lodged supplementary memorandum of

appeal in substitution of all his memoranda of appeal filed previously. The grounds raised in the supplementary memorandum of appeal are:

1. That, the circum stantial evidence reiied upon by the trial court to convict the appellant was not watertight as required by the law.
2. That, the last person to be seen with the deceased alive doctrine was wrongly invoked by the trial court to convict and sentence the appellant with the offence charged.
3. That , as a whole, the offence with which the appellant was charged and tried by the trial court was not proved beyond reasonable doubt. At the hearing, the appellant appeared in person and enjoyed the services of Mr. Cosmas Tuthuru, learned advocate. The respondent Republic was represented by Ms. Grace Michael Madikenya, the learned Senior State Attorney assisted by Mr. Isihaka Ibrahim Mohamed, learned State Attorney. It is also worthwhile to state that the appeal was uncontested as the respondent supported it. Despite that, the Court is required to determine the appeal at hand. After having heard the submissions of the trained legal minds, and examining the record of appeal, we noted that a decisive point in this appeal, is whether the appellant was properly identified by PW1.

As preliminary, Mr. Tuthuru brought to our attention the fact that, PW3's name was not listed during committal, the fact which was conceded by the learned State Attorney. He thus urged the Court to expunge PW3's evidence from the record. We agree with Mr. Tuthuru on the defect and proceed to expunge PW3's testimony including exhibit PI from the record. Regarding the complaint that the trial court improperly invoked the doctrine of the last person to be seen with deceased alive, Mr. Tuthuru submitted by referring to page 71 of the record of appeal denouncing the trial judge's decision to invoke the doctrine. He contended that, on page 21 of the record of appeal PW1 testified that the deceased and the appellant left together but it is unclear where they went thereafter. In support, Mr. Tuthuru cited the case of Israel Epuku s/o Achietu v. Rex, EA No. 81/1934 pages 167- 168. Besides, PW1 testimony on the evidence that the appellant is the last person to be seen with the deceased lacks corroboration. As held in Ijumaa Issa @Athman v. Republic [2022] TZCA 796 at page 15, the Court held that the doctrine of last person to be seen with the deceased alive has to be corroborated by other evidence. It was his contention that the doctrine was improperly applied in the case at hand. To further cast doubt on prosecution evidence, he brought to the attention of the Court the contradiction between PW1 and PW2 on pages 23 and 30 of the record of appeal. H pointed out that while

on page 23, PW1 said after getting back home from school he told his brother (PW2) that the deceased did not return home, PW2 on page 30 of the same record testified that in the morning before going to school, PW1 told him that the deceased did not return home. The issue of them seeing each other in the morning is incredible. Therefore, Mr. Tuthuru contended that the trial court's holding that these are credible witness was unjustifiable. On page 72 of the record of appeal, the trial court concluded that PW1 and PW2 met in the morning before going to school, that is not correct because PW1 was still asleep. As for lack of credence, Mr. Tuthuru focused on the PW l's self- contradiction on the source of light which helped him'to identify the appellant. On this point, the learned advocate contended that, the testimony of PW1 before the trial court and his statement (exhibit D l) recorded at the police station varies about the source of light. On page 23 of the record of appeal, PW1 stated that he identified the appellant because there was security light while in his statement on pages 60 to 61 of the record of appeal, he said that he recognized him by the aid of moonlight. We are in accord with Mr. Tuthuru that this witness is unreliable and incredible. See also the case of Issa Sima v. Republic, Criminal Appeal No. 158 of 1991(unreported). In the case at hand, PW1 did not explain as to why there is such a variation. The trial judge at page 6

73 of the record of appeal attempted to clear the doubt by holding that not every difference between the testimony and the witness' previous statement injures his credibility. And that on the issue of discrepancy in his testimony on solar security light and moonlight the learned trial judge held that perhaps the witness was not asked such question when testifying. But we hasten to hold, with respect, that considering the evidence on record it was erroneous to regard PW1 as a credible witness. On the issue of credibility and reliability of a witness, the Court in Damian Andrea @Kankono v. Republic [2024] TZCA 1293 provided a guidance. That said, we find it apt to stress that, in cases involving visual identification, the prosecution must abide with the principles articulated in Waziri Amani v. Republic [1980] TLR 250. Mr. Tuthuru closed his submission beseeching the Court to allow the appeal and set the appellant at liberty. On his side and as alluded to earlier, Mr. Mohamed briefly supported the appeal. Having heard the parties' submissions, and scrutinized the record of appeal, what is left for determination is whether the appellant was properly identified? Two critical points in this case are: visual identification and the doctrine of the last person to be seen with the deceased alive. As for the first and second grounds in the supplementary memorandum of appeal, they centre on circumstantial evidence and the doctrine of the last

person to be seen with the deceased alive which related to identification of the culprit. The appellant queries that, his conviction was based on improper identification particularly so, the intensity of light which was not specified and uncertainty on the source of light that enabled PW1 to identify him. In this case, PW1 was the sole witness for the prosecution who testified to have identified the appellant on the night before the deceased body was found. PW1 testified that the appellant was not a stranger to him, and he had known him well before the day of the incident. He reported the appellant to PW2 as the person last seen with deceased. As we stressed in Jumapili Msyete v. Republic, [2015] TZCA 234, knowing a person before vouches unmistaken identity in so far as it becomes a matter of recognition as distinguished from visual identification. Moreover, it is patent to state that our scrutiny.of the record revealed that PW l's testimony on identification of the appellant is unreliable and incredible. His statement at the police and oral testimony varies on the source of light. As rightly observed by Mr. Tuthuru PW1 merely stated that there was solar security light at the window through which he saw the deceased and the appellant. But in contrast, and to his discredit, PW1 in his witness statement (exhibit D l) stated that he identified the appellant with help of moonlight. This is incredible. We 8

subscribe to legal position in Kibwana Salehe v. Republic [1968] HCD 391 that: "Whenever a witness is proved to have made a statem ent on oath inconsistent with a statem ent previously made by him, the credibility o f that witness is com pletely destroyed, unless he can give an acceptable explanation for the inconsistence..." Looking at the record in the present case, such explanation is missing. Moreover, the record shows that the PW1 failed to explain the factors applicable in visual identification of the culprit as set in Waziri Amani (supra). The witness did not explain factors such as the clothes the appellant wore on the material night, the distance and the time he observed the appellant at the crime scene. Concerning matters of identification, the Court, in Jaribu Abdalla v. Republic, [2003] TLR 271 stressed that; it is not enough merely to look at factors favouring accurate identification, equally important is the credibility of the witness; and ability of the witness to name the offender at the earliest possible moment is a reassuring, though not a decisive factor. This being the first appellate court we have a duty to reconsider and evaluate the evidence on record and draw our own conclusions.

As grasped from his submission, Mr. Tuthuru aimed at showing that PW1 and PW2 are incredible witnesses. Apparently, there is contradiction with regards to when PW1 reported to PW2 that, the night before the incident around 20:00hrs he saw the appellant and deceased leaving together after the deceased had brought him rice and shoes and never returned. On page 23 of the record of appeal, PW1 testified that he told his brother PW2 after he returned from school and when he came to the knowledge of his mother's death because on that night his brother came back home very late, and when PW1 was leaving for school, he (PW2) was still asleep. Unfortunately, this version of story contradicts PW2's testimony at page 30 of the record of appeal that he heard information of appellant leaving with deceased from PW1 early in the morning before PW1 went to school. In such circumstance, as held in Dickson Elia Nsamba Shapwata and Another v. Republic [2008] TZCA 17, the Court is called upon to resolve the question whether the contradiction is minor or if it goes to the root of the matter. The contradiction between PW1 and PW2 as to what time PW2 was informed of such facts that appellant had left together with deceased on a material night and did not return, is not minor because it was reported after the fact. PW1 did not report at a possible earliest opportunity. As such the contradiction went to the root of the matter and affects the credibility of the witnesses.

Moreover, PW1 is the only key witness who identified the assailant whom he alleged to be the last person to be seen with the deceased. It has long been held by this Court that, the court must be cautious in acting on the evidence of a single witness of identification. In Felix Kachele and Another v. Republic, Criminal Appeal No. 159 of 2005 (unreported) • the Court observed, inter alia, as follows: "... a court cannot be said to be satisfied that the single witness was telling the truth where circumstances show that although the witness m ight be testifying honestly on what they believe is the truth , yet they m ight be m istaken..." We have considered whether PW1 gave details about the light, the aid of which made him to identify the appellant, but he did not explain the intensity of such light and the distance from where he was and the appellant. He simply said a short distance. He also contradicted Himself as to the source of light that aided him to identify the culprit. This contradiction is fatal and damages the credibility of PW1. Such contradiction is not minor, it raises doubt whether the appellant was properly identified. It is thus our considered view that PW l's contradictory testimony as to the source of light was not minor. It went to the root of the matter. Besides, we have also held in the case of Magari Juma

Dimbwe v. Republic [2015] TZCA 467 that moonlight is a weak source of light. Apart from that, the trial court found PW l's identification of the appellant was by recognition, hence more reliable than identification of a stranger. But considering PW l's self-contradiction on sources of light it can safely be concluded that the prosecution did not eliminate possibility of mistaken identity. That is fortified with legal stance in Abel Orua @Matiku and Others v. Republic [2024] TZCA 78, that even in identification by recognition there may be risk of mistaken identity. We are firm that PW1 failed to explain the distance between him and the appellant, intensity of light and his contradiction as to which source of light aided him, these holes in the prosecution case are construed in favour of the appellant. We are thus satisfied that the appellant was not properly identified. Consequently, there is no proof that the appellant was the last person to be seen with deceased alive. The above finding also resolves affirmatively the third ground of appeal that, the prosecution side failed to prove the case beyond reasonable doubt. Undisputedly, as per the shaky evidence on record and having expunged the post-mortem report (exhibit PI) which would establish that the deceased died an unnatural death, the viable conclusion 12

is that the prosecution failed to prove that it was the appellant who was involved in killing the deceased leave alone to be the last person to be seen with the deceased alive. In the end, we find the appeal to have merit. We allow it, quash the conviction and set aside the sentence imposed upon the appellant. We proceed to order his release unless lawfully held for any other cause. DATED at MUSOMA this 6th day of October, 2025. Judgment is delivered this 6th day of October, 2025 in the presence of the Appellant in person and Ms. Joyce Matimbwi, learned State Attorney for the Respondent/Republic, Shabani Kinyai, Court Clerk; is hereby certified as a true copy of the original. R. J. KEREFU JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL C. M. MAGESA. DEPUTY REGISTRAR COURT OF APPEAL 13