Mgaya Nyanokwe Marwa vs Republic (Criminal Appeal No. 536 of 2022) [2025] TZCA 1004 (1 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: KEREFU, J.A., MWAMPASHI, J.A, And AGATHO, J J U CRIMINAL APPEAL NO. 536 OF 2022 MGAYA NYANOKWE MARWA............................................................APPELLANT VERSUS THE REPUBLIC............................................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Musoma) (Mfoiqwji, J.) dated the 4th day of August, 2022 in Criminal Sessions Case No. 20 of 2022 JUDGMENT OF THE COURT 29th September & 1st October, 2025 KEREFU, J.A,: The appellant, Mgaya Nyanokwe @ Marwa was arraigned before the High Court of Tanzania at Musoma sitting at Tarime for the offence of murder contrary to section 196 of the Penal Code, Chapter 16 of the Revised Laws (the Penal Code) in Criminal Sessions Case No. 20 of 2022. The information laid by the prosecution alleged that, on 19th March, 2020 at Merenga Village within Serengeti District in Mara Region, the appellant murdered one Chiku Mwita @ Chacha (the deceased). The appellant pleaded not guilty to the charge. However, after a full trial, he was found guilty, convicted and handed down the mandatory death sentence.

To establish its case, the prosecution paraded a total of five witnesses and tendered one documentary evidence, namely, the Postmortem Examination Report (exhibit PI). The appellant relied on his own evidence as he did not call any witness. In a nutshell, the substance of the prosecution case as obtained from the record of appeal indicates that, the appellant and deceased were lovers since 2018 and they were living together as husband and wife at Merenga Centre. However, their love affairs encountered frequent fracas and misunderstandings. On 18th March, 2020, at night, a quarrel between the two arose and the deceased decided to reported the same to the Village Chairperson one Moses Samwel Ryoba (PW4) to assist her to safely part ways with the appellant. PW4 advised the deceased to take the matter to their hamlet Chairperson one William Marwa Mogeko (PW3), which she did. As it was already late, i.e 23:00 hours, PW3 advised the deceased to find a place to sleep until the following day. The deceased complied and went to their neighbour, called White, to spend a night. It was the testimony of PW3 that, on the following day, i.e 19th March, 2020 at 08:00 hours, he went to the appellant's home with a view to reconcile them, but he did not find them at home. He thus went

to Whites' home where he found both of them and asked them to accompany him to his office. However, while on their way, the appellant told them that he was going to pick his land lord's contacts. Thus, PW3 and the deceased proceeded to the office where they waited for the appellant until 09:30 hours to no avail. Therefore, PW3 and the deceased in a company of the ten-cell leader one Thomas Mgaya decided to go to the appellant's home where they found him not there. Thus, PW3 and the ten-cell leader supervised the deceased to pick her belongings. It was the testimony of PW3 that, the deceased took only her bag of clothes and went to the house of her friend one Hadija Magoiga (PW1) to secure a place to keep her properties shortly, while preparing to go back to her home village at Sirari as her child was reportedly sick. In her testimony, PW1 testified that, on 19th March, 2020 around 10:00 hours, while at home, the deceased came to her house for purposes of seeking a place to keep her belongings. That, when she entered the house, the deceased had a bag, big bucket ( diaba ) and a big local chair ( kigoda ). That, the deceased requested to have a shower before commencing with her trip to Sirari. A moment later, while dressing, the appellant showed up wearing a blue jeans, T-shirt and a

long jacket. He stood at the PW l's door, while agitated and asked the deceased as to why she took her belongings and left him. PW1 stated that, at that time, she was together with the deceased and her two children, Nyamuhanga who was twelve years old and Bhoke who was aged three years. It was the further testimony of PW1 that, the deceased did not respond to the appellant's questions but only asked her to call PW3 to rescue her from the appellant. PW1 rushed to PW3's office which was approximately 200 meters from her house. That, while on their way to PW l's house, they saw the deceased running from the house while crying but could not go far, as she fell down. People assembled at the scene to render assistance. PW1 stated that, the deceased told her that the appellant had cut her on the head and left hand. PW1 stated further that, later at her home, she recovered the part of the deceased's hand. Then, the deceased was taken to Merenga Dispensary where she was referred to Mugumu District Designated Hospital as her condition was critical. In his testimony, Nyamuhanga Naigwa (PW2), testified that one day Bonge (the deceased) came to bath at home. She came with diaba, clothes, pots and chair. Having bathed, Bonge dressed up, Mzee (the

appellant) came in and started to beat Bonge by using the machete which he took from his waist and cut her on the head and left hand and then ran away to the bush. On his part, PW3 stated that, while enroute to rescue the deceased, they met people who told him that the appellant had attacked the deceased. Shortly, they saw the deceased running from PW l's home, and suddenly, she fell down on the road. On approaching her, PW3 found that she was bleeding due to the cut wounds on her head and left hand. Upon asking as to who cut her, the deceased responded that she was cut by the appellant. PW3 went on to state that, on 23rd March, 2020, he received a phone call from a police officer of Mugumu Police Station, who asked him to mount a search for the appellant's arrest. PW3 shared the information with PW4 and they managed to arrest the appellant on the same day at around 10:00 hours when he was arranging to flee by using bodaboda and handed him over to the police of Mugumu Police Station. PW3 stated further that, on the same day, he received information that Chiku had passed away. No. F. 5834 7156 D/SGT James (PW5), the investigation officer, testified that, he was involved in the investigation of the incident and

visited the scene of crime on 23rd March, 2020 at 19:00 hours, in a company of other police officers, where they met PW3, PW4 and other villagers. PW5 stated that he recorded statements of witnesses and supervised the examination of the deceased's body where it was found that her death was due to severe cerebral bleeding caused by a big cut wound on left scalp and left palm. A postmortem examination report to that effect was admitted in evidence as exhibit PI. PW5 also stated that they managed to arrest the appellant on a motorcycle when he was in the process of fleeing. In his defence, the appellant, who testified as DW1, dissociated himself from the accusations levelled against him by raising a defence of alibi. He averred that, on 18th and 19th March, 2020 he was not at home as he spent the two days at the mining ground on construction activities. He also denied to know the deceased and or being his lover. He expounded that, he was living with his wife one Christina Kisyori. He thus challenged the evidence of PW1, PW2, PW3 and PW4 that they gave untrue story before the trial court. He, in particular asserted that, he was framed up by PW3 and PW4 due to their competing interests and grudges over the mining plots. He also denied to know PW1 and PW2. However, at the end of it all, the trial court relied on the testimony of PW2, the prosecution eye witness at the scene of crime whose

evidence was corroborated by PW1 and PW3 and found that the charge against the appellant was proved to the hilt. Thus, the appellant was found guilty, convicted and sentenced as indicated above. Dissatisfied, the appellant is now be' re us challenging the decision of the trial court. It is noteworthy that, on 12th December, 2022, the appellant lodged a memorandum of appeal comprising six grounds of appeal. However, on 24th September, 2025, Mr. Leornard Elias Magwayega, learned counsel who was assigned to represent the appellant, lodged a supplementary memorandum of appeal comprising the following grounds: (1) That, the learned tria l Judge erred in law and facts in holding that the prosecution proved its case beyond reasonable doubt while the same did not; (2) The learned tria l Judge erred in law and facts to rely on PW 2's evidence to convict the appellant while his statem ent was not read during the com m ittal proceedings which is contrary to the requirem ent o f section 263 (1) (2) and 308 (1) (2) and (3) o f the Crim inal Procedure Act, [Cap. 20 R.E. 2023]; (3) The learned tria l Judge erred in law and facts to ground a conviction against the appellant despite the fact that the prosecutions witnesses were incredible and unreliable; and

(4) The learned tria l Judge erred in law and facts in holding against the appellant, while the prosecution failed to parade m aterial witnesses to testify before the tria l court. When the appeal was placed before us for hearing, Mr. Magwayega prayed to abandon the original memorandum of appeal and intimated that he would argue the grounds of appeal indicated in the supplementary memorandum of appeal, starting with the grounds of appeal which touches on procedural irregularities followed by the remaining grounds related with the evidence. On the adversary side, the respondent Republic entered appearance through Ms. Grace Michael Madikenya, learned Senior State Attorney assisted by Mr. Isihaka Ibrahim Mohamed, learned State Attorney. At the outset, Ms. Madikenya declared the stance of the respondent of opposing the appeal. She however intimated that, it is Mr. Mohamed who would respond to the grounds of appeal as proposed by Mr. Magwayega. We shall therefore determine the grounds of appeal, in the same manner proposed by the learned counsel for the parties and related grounds will be determined conjointly. However, before doing so, it is crucial to state that, this being the first appeal, it is in the form of a re hearing, therefore the Court, has a duty to re-evaluate the entire evidence on record by reading it together and subjecting it to a critical scrutiny and 8

if warranted, arrive at its own conclusion of fact - see D.R. Pandya v. Republic [1957] EA 336 and Demeritus John @ Kajuli & 3 Others v. Republic, Criminal Appeal No. 155 of 2013 (unreported). Starting with the second ground, Mr. Magwayega faulted the learned trial Judge for having relied on the testimony of PW2 who was not among the witnesses listed by the Director of Public Prosecutions (DPP), during committal proceedings, that would be called to testify in this case. He argued that, since PW2 was not listed as a witness during committal proceedings, the prosecution was required to comply with the mandatory requirement of section 308 (1), (2) and (3) of the Criminal Procedure Act, Chapter 20 of the Revised Laws (the CPA) which empowers the trial court to receive additional witnesses and evidence which was not listed during committal, if a reasonable notice, in writing, is given to the accused or his advocate. In addition, Mr. Magwayega argued that, the evidence of PW2 was received in contravention of section 263 (1) and (2) of the CPA which stipulates that the information and/or the evidence of the intended witnesses which the DPP intends to rely upon during trial, should be read out and explained to the accused person during committal proceedings. To clarify further on these two points, Mr. Magwayega referred us to pages 4 and 5 of the record of appeal and pointed out

that, the committal proceedings in respect of this appeal were conducted on 20th April, 2022 where the intended witnesses were listed and their statements together with other documents intended to be used by the DPP during the trial were read over and explained to the appellant. He then argued that, since the name of PW2 did not feature in the committal proceedings and his testimony was received contrary to the mandatory requirement of the law, it was improper for the learned trial Judge to rely on such evidence to convict the appellant. On that omission, the learned counsel urged us to expunge the evidence of PW2 from the record. It was his argument that, after expunging the evidence of PW2 from the record, the remaining evidence is insufficient to ground the appellant's conviction as PW2 was the only prosecution's eye witness at the scene of the crime. In response to this ground, although, Mr. Mohamed readily conceded that the name 'Nyamuhanga Naigwa' did not feature in the committal proceedings, he urged us to find that, there was a typing error in the record of appeal. That, instead of 'Nyamhanga M agoiga' it was written 'Nyamuhanga Naigwa.’ To support his proposition, he cited the case of John Dickson @ Ngongole v. Republic, Criminal Appeal No. 477 of 2021 [2024] TZCA 144. 10

Upon being probed as to whether there was that clarification of the said names in the proceedings or even in the High Court's Judgment, he responded that there was no such clarification. He however, still urged us to consider the same as a slip of the pen and or just like the slip of the tongue and find that the evidence of PW2 was properly acted upon by the trial court. In the alternative, and upon further reflection, he argued that, if the Court finds that the said evidence was improperly received and expunge it from the record, the remaining evidence is still sufficient to sustain the appellant's conviction. Having closely considered the parties' submissions and examined the record of appeal in respect of PW2's evidence, we agree with Mr. Magwayega that the same was improperly acted upon, as, indeed, the record of appeal bears it out at pages 4 to 5 that the name of PW2 did not feature in the committal proceedings and his statement was not read out and explained to the appellant contrary to the provisions of section 263 (1) and (2) of the CPA. There was also no notice served to the appellant and or his advocate under section 308 (1) (2) and (3) of the CPA to add the said witness and his statement before the trial. There are quite a number of our previous decisions that have given effect of non-compliance to the said mandatory requirement of the law. See for instance, the cases of ii

Hamisi Maure v. Republic [1993] T.L.R 213 and Maswi Nchama v. Republic, Criminal Appeal No. 466 of 2021 [2024] TZCA 1159. Being guided by the above authorities, we are certain that section 263 (1) and (2) of the CPA was enacted for a sound reason, that is, to get the accused informed of what lies ahead in a case, which is an aspect of a fair trial. The law however, envisages a situation where the prosecution may have inadvertently omitted to have a statement of an important witness read out. In such a situation the prosecution may, in terms of section 308 (1), (2) and (3) of the CPA introduce that witness after giving reasonable notice and obtaining leave of the court. Nonetheless, in the instant case nothing of that sort was done. With respect, we find the argument by Mr. Mohamed misconceived and legally untenable as the said names 'Nyamhanga M agoiga' and 'Nyamuhanga Naigwd refers to different persons in law, and there is no clarification in the record of appeal suggesting that the said names refer to one and the same person. We are increasingly of the view that, even the case of John Dickson @ Ngongole (supra), he cited to us, is distinguishable with the facts of the instant appeal, as in that case, the issue was on the missing syllables in writing the names o f ' ChugulU instead o f ' ChigulU and or 12

' Chiagd instead of ' Chibagd which is not the case herein. In the premises, we find the second ground of appeal meritorious and we outrightly discount the evidence of PW2 from the record. Having discounted the evidence of PW2 from the record, the next question is whether the remaining evidence on record is sufficient to mount the appellants' convictions which takes us to the remaining grounds. Submitting on the third and fourth grounds, Mr. Magwayega faulted the learned trial Judge to have grounded the appellant's conviction by relying on the evidence of PW1, PW3 and PW5 who were incredible and unreliable witnesses as their evidence was tainted with contradictions in respect of the items that the deceased carried and took to PWl's home and on how the appellant was arrested. That, PW3, at page 26 of the record of appeal, testified that when the deceased left the appellant's home was only carrying her bag of clothes and nothing else, while at page 16 of the same record, PW1 testified that, the deceased came to her house while carrying a bag, big bucket {diaba) and a big local chair ( kigoda ). Mr. Magwayega argued further that although, in their testimonies, PW1 and PW3 testified that when the deceased fell down on the road, 13

many people assembled to render assistance, none of the said people was summoned to testify before the trial court to shed more lights on what transpired on that fateful date and clear some of doubts. He equally wondered as why the learned trial Judge did not draw adverse inference on the prosecution side for such a failure. In addition, Mr. Magwayega referred us to the testimonies of PW3 and PW5 and argued that the said witnesses gave contradictory evidence on how the appellant was arrested. That, at page 27 of the record of appeal, PW3 testified that he was the one who arrested the appellant on 23rd March, 2020 at around 10:00 hours and handed him to the police, while PW5, at page 34 of the same record testified that, he arrested the appellant on the same date at 19:00 hours while on the bodaboda in a bid to flee. It was the argument of Mr. Magwayega that the said contradictions had created doubts in the prosecution case which was supposed to be resolved in favour of the appellant. Based on his submission, he concluded that the prosecution case was not proved to the required standard and urged us to allow the appeal, quash the conviction and set aside the sentence imposed on the appellant and set him at liberty. 14

Responding to these grounds, although, Mr. Mohamed readily conceded that there are contradictions in the evidence of PW1, PW3 and PW5, he argued that the same are minor and do not go to the root of the matter. On the failure by the prosecution to summon the people mentioned by PW1 and PW3, he argued that the burden of proof in criminal cases lies squarely on the prosecution shoulders and the standard has always been proof beyond reasonable doubt. He cited section 152 of the Evidence Act, Chapter 6 of the Revised Laws and argued that, the said law does not require a specific number of witnesses to prove a fact, what is required is the quality of evidence and credibility of witnesses. He thus insisted that, in the instant appeal, the prosecution case was proved beyond reasonable doubt through the evidence of PW1, PW3, PW4 and PW5. That, having established its case against the appellant, the prosecution found it unnecessary to summon other witnesses. He thus urged us to find that the first, third and fourth grounds are devoid of merit and dismiss the appeal in its entirety. In his brief rejoinder, Mr. Magweyega reiterated his earlier submission and stressed that the prosecution case was not proved to the 15

hilt. He thus, once again, urged us to allow the appeal and set the appellant free. The appellant's main complaint on the third and fourth grounds is on the credibility of prosecution witnesses. The law regarding the credibility of witnesses is settled that every witness is entitled to credence unless there are cogent reasons not to believe that witness - see: Goodluck Kyando v. Republic, [2006] T.L.R. 363. Moreover, on appeal the credibility of a witness can be gauged through coherence and consistence of his or her testimony and its relation to the evidence of other witnesses. In the case of Elisha Edward v. Republic, Criminal Appeal No. 33 of 2018 [2021] TZCA 397, the Court restated the position set in its previous decision in Shabani Daudi v. Republic, Criminal Appeal No. 28 of 2000 [2004] TZCA 84 when emphasizing on assessment of credibility of witnesses, that: " C redibility o f a witness is the m onopoly o f the tria l court but only in so far as dem eanour is concerned. The credibility o f the witness can also be determ ined in two other ways. One, when assessing the coherence o f the testim ony o f that witness and two, when the testim ony o f that witness is considered in relation to the evidence o f other witnesses including that o f the accused 16

person. In those two occasions, the credibility o f a witness can be determ ined even by a second appellate court when exam ining the findings o f the first appellate court . " In the instant appeal, it is on record that, in convicting the appellant, the trial court, among others, relied on the evidence of PW2, PW1 and PW3. Now, having carefully considered the submissions by the learned counsel for the parties on the credibility of PW1, PW3 and PW5 and to answer the question as whether the prosecution case was proved to the required standard, we find it apposite to revisit their relevant evidence on the record. PW3 at page 26 of the record of appeal testified that: and the ten-cell leader accom panied Chiku up to their home. She opened the room and she took a bag o f clothes. I did not see her taking other things than the bag. In the room , she le ft one m attress, m osquito net and a lo cal chair . " Then, PW1 at page 16 of the same record testified that, "...Chiku...had a bag, big bucket (diaba) and a big lo cal chair . " Again, on how the appellant was arrested, PW3 at pages 27 to 28 of the record of appeal testified that: 17

"On 2 J d March, 2020, I received a ca ll around 08:00 hours from a police officer o f Mugumu Police Station. He told me to search fo r and arrest Mgaya. I shared the inform ation with the Village Chairman hence , we m ounted a hunt fo r Mgaya. In the end, we managed to arrest Mgaya on 23rd March ; 2020 around 10:00 hours in the process to run away...So, im m ediately after arrest, the Village Chairman com m unicated with Police who shortly arrived. We thus handed Mgaya to the police from Mugumu Police Station." Then, at page 34 of the same record, PW5, the investigation officer stated that: "On 2 J d March, 2020 ....at 18:00 hours, I got inform ation that the suspect was seen a t Marenga but was in the process to flee... Therefore, I with a team o f investigators we went to Merenga around 19:00 hours... We then m anaged to arrest the accused while on m otorcycle in bid to fle e ." Considering the above different versions given by PW1, PW3 and PW5 and taking into account that the appellant raised a defence of alibi and it is even not certain on who arrested him, we agree with Mr. Magwayega that PW1, PW3 and PW5 were incredible and unreliable 18

witnesses. The totality of the foregoing leads us to the conclusion that the prosecution case was tainted with doubts which in our criminal jurisprudence requires us to resolve in favour of the appellant. It is also on record, as argued by Mr. Magwayega that some of the people mentioned by PW1 and PW3 to have gathered on the road to offer assistance to the deceased were not brought before the trial court and no reasons was explained for that failure. We are equally surprised as to why the prosecution did not summon very crucial witnesses, like White, the said neighbour who hosted the deceased one day prior to her death. It is also on record that, Thomas Mgaya, the ten-cell leader who accompanied PW3 to the appellant's house to supervise the deceased to collect her belonging was not summoned to testify. Admittedly, the evidence of these people was so crucial to shed more light on the incident and on how the deceased's dying declaration was uttered to corroborate what was stated by PW1 and PW3. The failure by the prosecution to field these important witnesses, without reasons, would have prompted the trial court to draw an adverse inference against the prosecution. For purposes of emphasis, in the case of Boniface Kundakira Tarimo v. Republic, Criminal Appeal 19

No. 351 of 2008 [2011] TZCA 194 when considering a similar matter, the Court stated that: "...It is thus now settled that, where a witness who is in a better position to explain some m issing links in the party's case, is not called w ithout any sufficient reason being shown by the party, an adverse inference m ay be drawn against that party, even if such inference is only a perm issible one . " Earlier on, the Court had made corresponding remarks in the case of Aziz Abdallah v. Republic [1991] T.L.R. 71. In view of what we have demonstrated above, we are satisfied that there is no evidence on record which could have been safely relied upon by the trial court to convict the appellant. It is our further view that had the trial court considered the issues discussed above, it would have come to the inevitable finding that it was not safe to mount the appellant's conviction. In the event, we find merit in the first, third and fourth grounds of appeal. Consequently, we allow the appeal, quash the conviction and set aside the sentence imposed on the appellant. We, accordingly, order 20

that the appellant be set at liberty forthwith unless he is held for some other lawful cause. DATED at MUSOMA this 30th day of September, 2025. R. J. KEREFU JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL Judgment delivered this 1st day of October, 2025 in the presence of the Appellant in person and Mr. Wampumbulya Shani, learned Senior State Attorney for the Respondent/Republic, Stella Mlaponi, Court Clerk; is hereby certified as a true copy of the original. 21