Christopher Chiganga @ Mdono vs Republic (Criminal Appeal No 435 of 2022) [2025] TZCA 980 (19 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA ( CORAM: MWANPAMBO. J.A.. MWAMPASHI. 3.A. And AGATHO. J J U CRIMINAL APPEAL NO 435 OF 2022 CHRISTOPHER CHIGANGA@ MDONO ......................................... APPELLANT VERSUS THE REPUBLIC.......................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Mwanza) (Mnyukwg, 3) dated the 29th day of August, 2022 in Criminal Session Case No. 99 of 2019 JUDGMENT OF THE COURT 12th May & 19th September, 2025 AGATHO. J.A. The appellant Christopher Chiganga @Mdono was arraigned before the High Court of Tanzania at Mwanza (the trial court) facing the charge of murder contrary to sections 196 and 197 of the Penal Code. The particulars in the information alleged that, on 27th day of March 2018 at about 20:00 hours at Bukindo village within Ukerewe District in Mwanza Region, the appellant did murder one Magreth Maximilian@Musoma. He pleaded not guilty. The trial ensued in which the prosecution paraded five witnesses and the appellant had one witness. In the end, the trial court convicted and sentenced him to death by hanging. It is against the aforesaid conviction and sentence, that this appeal was lodged.

The prosecution evidence was briefly that, on 27/03/2018 at around 20:00 when getting back home at Bukindo from the market, and near her home, Restituta Msoloio (PWl) heard the deceased screaming that "Chiganga umeniua." Literally, translated as Chiganga you have killed me. She moved closer to the crime scene where there was, allegedly bright moonlight that helped her to see the deceased with her lower limbs cut and the appellant who was wearing sing/end ya kigunia (sack like vest) and barakashia "muslim hat"lying on top of the deceased 1 s body. PWl was standing one step to the deceased's body, and after seeing the appellant who was known to her, she asked him what he was doing, he then fled. Thereafter, PWl shouted for help; "mwand', which attracted the attention of PW2, Sostenes Lwitakubi who was just getting out of his house located at about 250 meters from the crime scene after having been informed about the incident from Msilanga Mayega's phone call. Apparently, this person was not called to testify. PW2 rushed to the crime scene. On the way to the scene, he met the appellant going in the opposite direction, pacing at a high speed dressed in normal clothes and kibarakashia on his head. He queried him as to why he was not responding to the call for help, but the appellant did not reply. PWl identified him because he knew him since 1974, and according to him, on the fateful day, there was a bright moonlight. It was 2

his testimony that upon reaching the crime scene, the deceased told him that the appellant attacked her, and PW1 told him that she saw the appellant fleeing. PW2 saw the deceased lying there with one of her legs cut. He added that the deceased told him that Chiganga cut her with machete. He went on narrating that the villagers who gathered at the crime scene did split: whereas PW1, PW3 (victim's husband), and the victim's sister took the victim to hospital, PW2 and others went after the appellant. According to PW2, they did not go to the appellant's home at Kabughu because they were told that he had gone to Bukindo village which is two kilometres away. However, the person who told them that the appellant was not at his home was not called to testify so as to confirm that assertion. Afterwards, PW2 and PW3 reported the matter to a police officer who asked them to arrest the appellant. Even so, that police officer was not called to testify. Later PW2, PW3, and the village chairman of Nakisilila village arrested the appellant at his residence. The testimony of PW3, Cleophas Nicodemus Tungaraza, the husband of the deceased was that he, together with other people including the village chairman arrived later at the crime scene and took the victim to the hospital. Besides seeing his wife's both legs cut, PW3 was told by PW1 that it was the appellant who had assaulted his wife. He continued to testify that they took the deceased to the police station

where they obtained a PF3 and rushed her to the hospital. While at the hospital the deceased told him that if she dies it is Chiganga who had attacked her with a machete. Further evidence of PW3 was that the appellant soon after the incident fled to his home. This contradicts PW2's testimony that they did not go to the appellant's home because they were told that he went to Bukindo. It is on record that the victim succumbed to death on 28/03/2018 at about 03:00 A.M. while receiving medical attention at Bomani hospital but a doctor who attended her was not brought to testify. Instead, the medical doctor who conducted the autopsy, one Dr. Deusdedit Makarius (PW4) testified on the victim's death, which he found to be caused by severe anaemia due to excessive bleeding. He filled in a postmortem examination report which was admitted as Exhibit PI. Having received the news that the victim had passed on, the police went to the crime scene where PW5, G2476 Detective CpI Mrisho, drew a sketch map of the crime scene with the help of PW1. The sketch map was admitted as exhibit P2 showing where the deceased body was lying, and the location of the machete as well as the singfand ya kigunia. At the closure of the prosecution case, the trial court was satisfied that a prim a facie case had been established and hence called upon the appellant to make his defence. On his side, the appellant (DW1) distanced

himself from the charge. He denied knowing the deceased leave alone killing her. According to him at the material time, he was at Mzena's house drinking alcohol. He added that, before his arrest, he neither heard " m wano"a z&\ for help nor the incident. Despite his denial the trial court found him guilty, convicted and sentenced him to death by hanging. Irked, the appellant has appealed to this Court on two grounds; one, that the trial court erred for failure to consider the contradictions in the prosecution witnesses' evidence; and, two, that the trial court failed to consider that the appellant was not arrested soon after the commission of the offence. The appellant initially filed two memoranda of appeal, one dated 01/03/2023 and a supplementary memorandum of appeal dated 06/10/2023. On top of that, his learned counsel filed another memorandum of appeal on 07/05/2025. But, on 13/05/2025 when the appeal came for hearing, the appellant and his iearned advocate agreed and informed the Court that they are abandoning the rest of memoranda of appeal and remained with that of 07/05/2025 capturing the above stated grounds. At the hearing Mses. Lilian Erasto Meli and Stella Melchory Minja, learned Senior State Attorneys, represented the respondent Republic. On his side, the appellant appeared in person represented by Mr. Victor

Nestory Karumuna, learned counsel. At the outset, Ms. Meli opposed the appeal. For convenience, we shall start with the second ground of appeal in which the appellant complains that he was not arrested immediately after the incident. As per the record of appeal the appellant lived in the neighbouring village. PW3 testified that from the village where the incident occurred and where the appellant's village is located is about 40 minutes' walk. Mr. Karumuna argued that the appellant could have been arrested on the same day but ut for unknown reasons he was arrested on the next day at 10:00 in the morning. He contended that the delay in arresting him create a doubt. He supported his submission with the case of Harison Gerald Mbuya v. Republic [2024] TZCA 432. Contesting the second ground of appeal, Ms. Meli submitted while referring to the record of appeal that PW2 testified that they went to arrest the appellant but they did not find him at his home. She contended that on the next day in the morning after the incident, PW2 and others went to the appellant's home, and they arrested him. It was her view that, there was no delay and urged the Court to dismiss the second ground of appeal. Having examined the record of appeal, we are of the firm view that, while it is true that the appellant was not arrested immediately after the deceased was injured and that he was seen at the crime scene, it cannot

be said that there was any delay in his arrest. As visible in the record of appeal, PW2 testified that the victim died on 28/03/2018 at around 03:00 hours at night whereas the appellant was arrested in the morning of the same day. According to the evidence of PW1, PW2, and PW3 the incident occurred on the night of 27/03/2018. The deceased passed away at 03:00 on 28/03/2018. On that very day in the morning the appellant was arrested. That said, we hold that there was no delay in arresting him. His complaint lacks substance we thus dismiss the second ground of appeal. Turning to the first ground of appeal, the learned counsel for appellant contended that PW3 contradicted himself when he testified that the deceased was unconscious from 20:00 up to 23:00. On her side, PW1 testified that it was around 20:00 while on her way home she heard the victim crying that Chiganga unaniua. Translated as Chiganga you are killing me. Another contradiction according to Mr. Karumuna relates to the clothes that the appellant dressed on the fateful night. Whereas PW1 testified that the appellant was wearing sing/and ya kigunia (a sack like vest), PW2 testified that the appellant was wearing normal clothes. PW1 testified that they found the sing/and ya kigunia at the crime scene but the appellant's counsel wondered as to when the appellant took off the singiandya kigunia since PW1 did not explain that fact in her testimony.

In addition, Mr. Karumuna highlighted another contradiction with regards to where the weapon was found. He referred to PWl's testimony that the machete was about one pace but PW2 testified that it was found two to three paces from where the deceased's body was. He submitted that these witnesses contradicted themselves. He attacked the evidence of PW1, that she saw Chiganga lying on the deceased's chest however, in cross examination, she contradicted herself saying that she saw him lying on her back. He buttressed his submission with the case of Suleiman Dago@Swalehe v. Republic [2024] TZCA 280 holding that, doubts in the evidence of prosecution are resolved in favour of the appellant. Apart from that, the appellant's counsel voiced a contradiction on the whereabouts of the appellant. While it is on record that PW3 testified that he, together with PW2 and a village chairman went to the appellant's home, PW2 testified that they did not go to his home because they were told that he was at Bukindo. In her reply submission, Ms. Meli started with the issue of the deceased being unconscious according to PW3's testimony. While conceding that there were contradictions in the testimonies of PW1 and PW3 on this issue, she contended that they were minor and did not go to the root of the case because, PW1 was an eyewitness who knew the appellant before the incident and her identification was by recognition.

As for the contradictions relating to clothes, sing/and ya kigunia cheupe(a white sack like vest) and kibaragashia that the appellant is said to be wearing, the learned Senior State Attorney referred to PWl's evidence and PW2's testimony that Chiganga was wearing normal clothes and argued that singfand may be a normal cloth to PW2. It was her view that, the contradictions were minor. In respect of the intensity of light, Ms. Meli referred to PWl/s testimony that there was bright moonlight which helped her to identify the appellant. She also referred to PW2's testimony that he knew the appellant for more than 15 years. She submitted that PW1 and PW2 identified the appellant by recognition. In support, she referred us to the case of Chacha Jeremiah Murimi and Others v. Republic [2019] TZCA 51 to argue that moonlight may be sufficient to identify an assailant by recognition. Eventually, she beseeched the Court to find that PW1 and PW2 sufficiently recognized the appellant. Regarding distance, Ms. Meli argued that PW1 testified that she was standing one step from where Chiganga was with the deceased. Ultimately, she urged the Court to dismiss the complaint on contradictions as they did not go to the root of the matter. Rejoining, Mr. Karumuna contended that the contradictions noted went to the root of the matter. He urged the Court to find merit in the first ground of appeal.

With the above, we shall turn our attention to a discussion on this ground. To begin with, it is true that PWl's testimony contradicted that of PW3 because while PW1 said she was at the crime scene at 20:00 and heard the deceased crying " Chiganga unaniud ', translated as Chiganga you are killing me, PW3, the husband of the deceased on the other hand testified that the deceased was unconscious from 20:00 up to 23:00. It implies that the crime could not have been committed at the time when the deceased was already at the hospital. In our view, such contradiction is minor because there is no dispute that the incident occurred on 27/03/2018 at night and that the deceased died on 28/03/2018 at 03:00 in the morning. It is understood that a new day starts at 00:01 hours. If the incident occurred at 20:00 on 27/03/2018 and the deceased was taken to hospital in the same night, then we do not see any serious contradiction that might have prejudiced the appellant Next is the clothes the culprit wore on the fateful day. The issue is whether he was wearing singiand ya kigunia or normal clothes. PW1 testified that the appellant was wearing singiand ya Kigunia and Kibarakashia (Muslim hat) contrary to PW3's testimony that he met the appellant wearing normal clothes and a Muslim hat. This raises doubt as to whether PW2 properly identified the appellant. Along with that is the testimony that the said singiand ya kigunia was found at the crime scene 10

the next day. Given the fact that PW1 testified that she saw the appellant fleeing from the crime scene meaning she did not see him taking off the sing/and ya kigunia, we wonder at what time and who brought the said vest back to the crime scene. Moreover, PW2 testified that, the distance from his home to the crime scene is 250 metres which is about 10 minutes' walk. In our view, the time appears to be short and leaves us wondering if within such short time a person may be able to change his clothes and then later come back and dump the vest at the crime scene. PW2 admitted in his testimony not remembering the colour of the clothes the appellant was wearing. While the learned Senior State Attorney submitted that singfand ya kigunia may be a normal cloth to PW2, but we disagree because, singfand ya kigunia is not a normal cloth. In our considered view, that was not a minor contradiction, raising doubt on PW2's identification of the appellant although he was not a stranger to him. It should be noted that, PW1 and PW2's identification of the appellant is by recognition, and both testified that on that fateful night there was a bright moonlight. The appellant contradicted that evidence with his uncontroverted testimony that on the material night it was cloudy, and he rode his bicycle which had a tight bulb. PW1 also testified that March and April fall on a rainy season where it normally rains day and night. The record shows that the incident occurred in March 2018. Yet, li

PW1 and PW2 testified that on the materia! night there was a bright moonlight. Despite that testimony, a moonlight as source of light is unreliable, except where the witness is familiar and proximate with the assailant as held in Magari Juma Dimbwe v. Republic [2015] TZCA 467. We note here that, though PW1 and PW2 testified that they were familiar with the appellant, they contradicted themselves on the clothes he wore that night. Regarding contradictions on the time of the deceased's unconsciousness, location of the machete at the crime scene and whether the appellant was lying on top of the deceased or on the back, one must consider whether they are minor or fundamental to the case. We are of the view that these are minor contradictions not going to the root of the matter. The law on contradictions or discrepancies in evidence is settled as we held in Bakari Hamis Ling'ambe v. Republic [2014] TZCA 260, it is not every discrepancy in the prosecution evidence that will lead to the case to flop. That is so if the contradictions and discrepancies are minor. Similarly, in Dickson Elia Nsamba Shapwata v. Republic [2008] TZCA 17 the Court observed that contradictions by witness or between witnesses cannot be avoided in a case and the Court amplified that position in the case of Issa Hassan Uki v. Republic [2018] TZCA 361

citing with approval the High Court's decision in Evarist Kachembeho and Others v. Republic [1978] LRT 70 where it was stated as follows: "Hum an recollection is not in fallib le. A w itness is not expected to be rig h t in m inute details when retellin g h is s to rf, In the same case, the Court referred to the case of John Gilikola v. Republic [2004] TZCA 13 which held that due to frailty of human memory the court may ignore minor discrepancies and contradictions. Mindful of the above, it is our view that in the present case, PW1 and PW2 contradicted each other in their testimonies on clothes the appellant wore on the material night which was central to his identification by recognition. In our view, that was not a minor contradiction raising doubt as to whether the appellant was properly identified. We thus take the same path we took in Issa Hassan Uki (supra) that, where contradictions are on critical points such as identification of the culprit, that raise doubts in the witnesses'testimony. Further, in Said Ally Ismail v. Republic [2009] TZCA 130 we held that where the gist of evidence is contradictory then the prosecution's case will be dismantled. In the case at hand, although PW1 and PW2 knew the appellant prior to the incident, they contradicted themselves on the clothes they saw him wearing that night, which suggests mistaken identity. 13

Compounded with the short time that lapsed from the time PW1 said to have seen the appellant at crime scene wearing singland ya kigunia and PW2 meeting him dressed in normal clothes on the way to the crime scene, doubts as to his identification are louden. We thus find that the contradiction went to the root of the matter. We, consequently, differ with the trial judge's finding on this point. In his testimony, PW2 testified that he saw the appellant walking in a hurry wearing normal clothes and baraghashia. In the case of Waziri Amani v. Republic [1980] TLR 250, the Court cautioned on the risk of mistaken identity where there is either poor visibility or rapid movement. Fortified with that authority, it is our view that, since PW2 testified that he saw the appellant walking speedy, that could have led to his mistaken identity. As for moonlight as a source of light, PW1 and PW2 testified that they identified the appellant because, there was a bright moonlight on the fateful night, and they saw him at a close distance. However, in Magari Juma Dimbwe (supra), the Court held that, for purposes of positive identification, the moonlight is a weak source of light. A similar sentiment was expressed in Hamimu Hamisi Totoro Zungu Pablo and Two Others v. Republic, Criminal Appeal No. 170 of 2004 (unreported). Nevertheless, in the latter case, the Court held that, under certain 14

circumstances, such as, proximity and familiarity with the assailant moonlight can enable the witness to sufficiently recognize the assailant. In the present case, PW1 testified that there was a bright moonlight, and at the crime scene she was one step from where the deceased and the appellant were lying. Moreover, PW1 and PW2 testified that they knew the appellant prior to the incident. But, as alluded to earlier and as it will unfold in due course, PWl's identification of the appellant raises doubts particularly regarding her testimony that at the crime scene she saw the appellant wearing singiand ya kigunia which on the next morning was found lying at the crime scene. PW1 did not explain if she saw the appellant taking it off. Plainly, identification by recognition is not faultless. PW2 testified that that he saw the appellant wearing normal clothes. In Abel Orua@Matiku and Others v. Republic [2024] TZCA 78 it was held that even in identification by recognition there may be mistaken identity. In the case at hand and as found by the trial court, PWl's and PW2's identification of the appellant corroborated the deceased's dying declaration. However, that dying declaration as an exception to hearsay rule under section 34B(2) of the Evidence Act required not only corroboration but also has its conditions including explanation about the mental condition of the declarant at the time of making the declaration as

we held in Julius Mabizi Maswi v. Republic [2024] TZCA 1246 which in the present case is conspicuously missing because the trial court did not address it. Moreover, given the horrifying incident and terrible wounds the deceased sustained from the attack, it is not surprising as confirmed by the evidence of PW3 that she became unconscious for some hours at the hospital. In our view, that indicates that her health condition was deteriorating. For that reason, her physical and mental condition ought to have been explained by the doctor who attended her when she was brought at the hospital. Unfortunately, that doctor was not called as a witness. That denied the trial court an opportunity to assess such vital evidence. We hold so because, according to PW3, while at the hospital, the deceased told him that the appellant attacked her. We think the doctor was a material witness who ought to have been called as a witness. In the final analysis, and upon our own re-appraisal of the evidence on record, we are satisfied that the appellant's conviction was grounded on evidence which did not prove the case against him beyond reasonable doubt. Had the trial court properly directed its mind to the holes in the prosecution case, in particular, contradictions in the identification of the culprit, it would not have found the appellant guilty and convicted him.

Consequently, the above considered, we allow the appeal, quash the conviction and the sentence, and order the appellant's immediate release from custody unless lawfully held therein for any other cause. DATED at DODOMA this 15th day of September, 2025. LJ.S. MWANDAMBO JUSTICE OF APPEAL A.M. MWAMPASHI JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL The judgment delivered this 19th day of September, 2025 in the presence of the appellant who appeared in person from Butimba prison and Ms. Sophia George Warinda, learned State Attorneys, for the Respondent via virtual Court and Leopord Mabugo, Court Clerk; is hereby certified as a true copy of the original.