Charles Kidaha vs Republic (Criminal Appeal No. 246 of 2022) [2025] TZCA 942 (4 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT SUMBAWANGA (CORAM: MWARIJA. J.A.. MASHAKA. J.A. And FELESHI. J.A.1 ) CRIMINAL APPEAL NO. 246 OF 2022 CHARLES KIDAHA .................................................................... APPELLANT VERSUS THE REPUBLIC ............ ........................................................ RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Sumbawanga) (NdunguriLi) dated the 21s t day of March, 2022 in Criminal Session Case No. 22 of 2016 JUDGMENT OF THE COURT 10th March & . 4th September, 2025 MASHAKA. 3.A.: The appellant, Charles Kidaha, was charged with murder contrary to sections 196 and 197 of the Penal Code Chapter 16, before the High Court of Tanzania sitting in Sumbwanga in HC Criminal Sessions No. 22 of 2016. It was alleged that on 26/4/2014 in the evening at Mpembe Village within Mpanda District in Katavi Region, he and other two accused persons, Kuzenza Jendesha and Joseph Mtema Madia (who were acquitted) jointly and together did murder Frank Joseph Samweli. The trial court convinced that the prosecution evidence proved the charge to the hilt, convicted and sentenced him to death by hanging.

Aggrieved, the appellant lodged this appeal challenging the decision of the High Court. Briefly, it is on record that, the deceased was a bodaboda rider and he used to park his motorcycle near Katavi District Hospital alongside his other bodaboda riders. On the 26/4/2016, while at their usual bodaboda stand waiting for passengers, Geofrey Mongomongo (PW1), saw a man approaching the deceased. The man hired the deceased after they agreed on a fare, the deceased left with the man. On that day, the deceased never returned to their stand. The following day, PW1 received a call from their bodaboda leader that Frank Joseph Samweli had died. He rushed to the bodaboda stand and he was told that his colleagues went to the hospital. He thus headed to the hospital morgue; upon arrival the police officers opened the deceased body for identification and he identified it being that of the deceased. Naibu Mkongwa (PW3), a medical officer conducted post mortem examination on 28/4/2014 of the body and discovered that the cause of death was due to head injury caused by a blunt object which led to severe bleeding causing shortage of oxygen in the brain. A post mortem report was issued and admitted in evidence as exhibit P2. Beatrice Anton (PW2), the deceased's mother not seeing her son return home the previous night, decided to go to the District Hospital 2

where the deceased used to park his motorcycle. At the hospital, she was shocked to be shown the dead body of her son, she collapsed thereat. When she woke up, she told the police that her son had a motorcycle red in colour and he was a bodabodd rider. The evening of 21/5/2014, ASP Halifan William Ngonyani (PW5) received information from the Chairperson of Kasekese Village that there are suspects who have been arrested. Accompanied with other police officers, they went to the scene. Upon their arrival, PW5 found a crowd of people and three suspects locked in an office of the Village Executive Officer (VEO). It was revealed that the suspects were found with the motor cycle which was reported to have been stolen and they were looking for buyers to purchase it. They arrested the appellant and two other suspects, seized the motorcycle and filled the seizure certificate (exhibit P4). The appellant was taken before a justice of peace on 23/5/2014, one Mkumbi Ramadhani Mkumbi (PW4) and the appellant's extra-judicial statement (exhibit P3) was recorded. On their part, the appellant and other accused persons completely denied any involvement in the murder of Frank Joseph Samweli. The appellant admitted to have been arrested with a motorcycle make SANLG at Kasekese area. He claimed that he bought it from Hamis

Maduhu at a sale price of TZS. 1,000,000.00 and that he had paid him in advance TZS 600,000.00 and a balance of TZS 400,000.00 would be paid at a later date. Further, it was his evidence that the registration card would be handed over to him after clearing the remaining balance of the sale price. He also admitted that on the date he was arrested, he was with Kuzenza Jendesha (DW2) and Joseph Mtema @Madia (DW3) as they had hired him to ferry them to Kayenza to attend a wedding ceremony. At the end of the trial, the court found the appellant guilty and convicted him based on the doctrine of recent possession supported with circumstantial evidence adduced by PWl, PW2, PW3, PW4, PW5 and exhibit P3. However, the 2n d and 3r d accused persons were acquitted, while the appellant was sentenced as we alluded earlier. Aggrieved, the appellant preferred the present appeal. On 09/01/2024, the appellant lodged a memorandum of appeal containing five (5) grounds of complaint. Again, on 26/08/2024 he lodged supplementary memorandum of appeal with seven (7) grounds and on 04/03/2023 lodged another supplementary memorandum of appeal with seven (7) grounds. Come 04/03/2025, Mr. Peter Kamyalile, learned counsel for the appellant in terms of rule 73 (2) of the Tanzania

Court of Appeal Rules, 2009 lodged a supplementary memorandum of appeal comprising the following complaints:

1. That the learned trial Judge erred in law basing its conviction on exhibits P lf P2, P3f and P4 which were not read out to the appellant during the committal proceedings.
2. That learned trial Judge erred in law by basing its conviction on extrajudicial statement (exhibit P3) which was wrongly admitted in evidence.
3. The learned trial Judge erred in law in allowing PW4 to give evidence at the trial while his statement had neither been read at the committal proceedings nor reasonable notice was given to the appellant or his advocate.
4. That the learned trial Judge erred in law by declaring that the appellant committed the offence charged in the ruling o f case to answer before giving him an opportunity to

make his defence and based on one exhibit which was not tendered. At the hearing of the appeal, the appellant was present and represented by Mr. Peter Kamyalile, the learned advocate, whereas the respondent, Republic had the services of Mr. Calistus Kapinga, learned Senior State Attorney, assisted by Mr. Joseph Mwakasege, learned State Attorney. Commencing his submissions, Mr. Kamyalile intimated that he has abandoned ground 4 in the supplementary memorandum of appeal above and would argue the remaining three grounds and ground 1 in the memorandum of appeal dated 09/01/2024 which reads: "That, the trial court erred in law to convict the appellant without taking into account that the prosecution failed to prove the case as per the required standard o f law " Submitting in support of ground 1 in the supplementary memorandum, Mr. Kamyalile argued that the substance of exhibits PI, P2, P3 and statement of PW4 were not read over to the appellant which contravened section 246 (2) and 289 (1) of the Criminal Procedure Act, Chapter 20 (the CPA). He supported his argument by referring us to the case of Alfan Apolinary @ Kyalubota and Others v. Republic [2023] TZCA 17579 (31 August 2023 TANZLII), that the trial court ought

not to have relied on them and the remedy for such procedural irregularity is to expunge the exhibits. Mr. Kamyalile's submission on ground 2 of appeal was that the trial court wrongly relied and based its conviction on exhibit P3, the extrajudicial statement, while PW4 had narrated the contents of the exhibit before it's admission in evidence. The learned counsel implored us to expunge exhibit P3 from the record as founded in the case of Hussein Hassan @ Antiti v. Republic [2024] TZCA 1070 (7 November 2024 TANZLII). Arguing in support of ground 3 of appeal which has two limbs; first, the statement of PW4 was not read over during the committal proceedings; and second, the notice to call an additional witness was not given to the appellant, Mr. Kamyalile contended that, the extrajudicial statement (exhibit P3) was not listed as one of the intended exhibits to be relied on by the prosecution and was not readout during the committal proceedings. Further, he argued that a notice issued by the prosecution to call an additional witness was not issued within reasonable time therefore, it came as a surprise to the appellant, as he had no time to prepare himself, hence it contravened section 289 (1) and (3) of the CPA. He contended further that, the prosecution issued a one-day notice to call an additional witness, PW4 and he testified on the

same day. He bolstered his argument with the cases of Hamis Meure v. Republic [1993] T.L.R. 213 and Alfan Apolinary @ Kyalubota and Others v. Republic {supra), he prayed to the Court to disregard the evidence of PW4. The last complaint is that the charge was not proved to the hilt. The learned counsel claimed that the conviction of the appellant was based on the doctrine of recent possession of the motorcycle which constituted the subject matter of the charge. However, he added, that the motor cycle was not tendered during trial and no reason was advanced by the prosecution for the failure to do so. Furthermore, he contended that the prosecution failed to prove the elements of the doctrine of recent possession as they failed to tender its registration card though it was among the intended exhibits to be relied upon to prove the charge. He further argued that there was no evidence led by the prosecution to prove ownership of the motorcycle. Additionally, he contended that though PW2 stated she had sold the motorcycle but the prosecution failed to tender any sale agreement or produce information from the Tanzania Revenue Authority (TRA) to prove PW2 was the previous owner of the said motor cycle. Mr. Kamyalile argued further that there was no evidence which linked the appellant with the murder of the deceased as the seizure 8

certificate ought to be expunged. Also, the evidence of PW1 on identification of the motorcycle is wanting as it requires corroboration and the evidence of PW2 and PW5 cannot corroborate the evidence of PW1. He concluded that the remaining evidence did not prove the charge of murder and thus implored the Court to allow the appeal and the appellant to be set free. In reply, Mr. Kapinga strongly resisted the appeal but later supported it basing on ground five that the charge was not proved to the hilt. Commencing with the complaint in ground 1 of the supplementary memorandum of appeal, he submitted that as the record shows there was compliance with section 246 (3) of the CPA as recorded by the committing magistrate. However, he conceded that the record does not show compliance to section 246 (2) of the CPA and the effect is that the trial court could not admit in evidence the exhibits and ought not to have relied on them to convict the appellant. It was his submission that exhibits PI, P2, P3 and P4 ought to be expunged from the record. He argued that if these exhibits are expunged, the prosecution evidence remaining is oral account by PW1, PW2 PW3 and PW5 which is incapable of proving the charged offence. Regarding ground 3 of appeal, Mr. Kapinga contended that a notice to call additional witness one Mkumbi Ramadhani Mkumbi was filed

under section 289 (1) of the CPA and was served to the defence counsel for the accused persons. On the hearing date, the learned counsel representing the accused persons raised no objection and the trial Judge ruled that the need to call the witness was shown during the preliminary hearing thus, filing of the notice was reasonable and allowed the witness to be called as an additional witness. Mr. Kapinga urged the Court to consider that the ruling of the trial court was proper and the notice was issued within reasonable time and it did not prejudice the appellant. On ground 4 of complaint, Mr. Kapinga submitted that there were only four exhibits which were tendered by the prosecution and not five as stated in the ruling for a case to answer, hence it was a slip of the pen. Moving to ground 5, Mr. Kapinga did not dispute that the conviction of the appellant was based on the doctrine of recent possession of the motor cycle which was alleged to have been stolen from the deceased causing his demise. He argued that the motorcycle that constituted the subject matter of the charge was not tendered in evidence though listed as intended exhibit for the prosecution and no reason was provided for not tendering it. He contended further that to prove the elements of recent possession; it was upon the prosecution to provide proof of who was the registered owner as shown in the 10

registration card of the motor cycle which was also listed as an intended exhibit but was never tendered in evidence together with the motor cycle during the prosecution case. Based on that ground, Mr. Kapinga concluded that, the prosecution failed to prove the charge to the hilt. He yielded that the prosecution failed to prove beyond reasonable doubt who was the rightful owner of the motor cycle as argued by Mr. Kamyalile and that cast a doubt as to whether the motor cycle which was alleged to have been stolen from the deceased and a motor cycle found in the possession of the appellant was one and the same. This doubt ought to have been resolved in favour of the appellant he concluded. In rejoining, Mr. Kamyalile had nothing more to add. Having heard the submissions by both learned counsel and perused the record of appeal, we are called on to determine whether the charge was proved beyond reasonable doubt. We wish to determine first the procedural irregularities. The complaint in ground 1 of the supplementary memorandum of appeal concerns the failure by the prosecution to read out the substance of exhibits PI, P2, P3, and P4 to the appellant during the committal proceedings. The procedure that a committing court must follow after receiving the information and before committing the accused person to 11

the High Court for trial is outlined under section 246 (1), (2) and (3) of the CPA which stipulates that: "(1) Upon receipt o f the copy o f the information and the notice, the subordinate court shaii summon the accused person from remand prison or, if not yet arrested, order his arrest and appearance before it and deliver to him or to his counsel a copy o f the information and notice of trial delivered to it under subsection (7) of section 245 and commit him for trial by the court; and the committal order shall be sufficient authority for the person in charge o f the remand prison concerned to remove the accused person from prison on the specified date and to facilitate his appearance before the court. (2) Upon appearance o f the accused person before it, the subordinate court shaii read and explain or cause to be read to the accused person the information brought against him as weii as the statements or documents containing the substance o f the evidence o f witnesses whom the Director o f Pubiic Prosecutions intends to caii at the triai. (3) After complying with the provision of subsections (1) and (2) the court shall 12

address the accused person in the following words or words to the like effect: "You have now heard the substance o f the evidence the prosecution intends to caii at your trial. You may either reserve your defence, which you are at liberty to do, or say anything which you may wish to say relevant to the charge against you. Anything you say will be taken down and may be used in evidence at your trial." [Emphasis added] As gleaned at page 25 of the record of appeal, the prosecutor informed the committing Magistrate that the Republic would call a total of 16 witnesses during trial and the substance of the evidence of their statements were read out to the accused persons in terms of section 246 (2) of the CPA. However, the record is silent and does not state specifically as required by section 246 (2) of the CPA, whether the substance of the evidence of the intended documentary exhibits PI, P2, P3 and P4 was read over to the appellant. The committing Magistrate failed to show that section 246 (2) of the CPA was complied with. As submitted by both Mr. Kamyalile and supported by Mr. Kapinga, the exhibits deserved to be expunged from the record and as we held in Alfan Apolinary @ Kyalubota and Others v. Republic (supra), we accordingly do so. We find ground 1 of the supplementary memorandum of appeal is merited. 13

Going to ground 2 of appeal, the appellant's complaint is that the trial court wrongly relied and based its conviction on exhibit P3, the extrajudicial statement, which PW4 had narrated its contents before it's admission in evidence. Mr. Kapinga conceded to this ground and as decided in ground 1 of appeal, we have expunged exhibit P3 from the record. We allow ground 2 of appeal. In respect of ground 3 of appeal which has two limbs; one, that the statement of PW4 was not read over during the committal proceedings as it was not listed as one of the intended exhibits to be relied on by the prosecution; and two, the notice to call him as an additional witness was not given to the appellant. We agree with Mr. Kamyalile that, exhibit P3 which was tendered in evidence by PW4 was not among the intended exhibits to be relied upon by the prosecution and we have expunged it from the record. Though the testimony of PW4 remains, we find that the time given to the appellant after being served notice of additional witness was within reasonable time considering the facts of the case. It is the requirement under section 289(1) and (3) of the CPA which is couched in a mandatory term that the substance of the statement of a witness which was not read over during committal proceedings cannot be relied unless notice to call him as additional 14

witness has been served to the accused person or his advocate within reasonable time. The said provision reads: 'Y 1) No witness whose statement or substance of evidence was not read at committai proceedings shail be caiied by the prosecution at the trial unless the prosecution has given a reasonable notice in writing to the accused person or his advocate o f the intention to call such witness. (2) NA (3) The court shall determine what notice is reasonable, regard being had to the time when and the circumstances under which the prosecution became acquainted with the nature o f the witness's evidence and determined to cai! him as a witness; but no such notice need be given if the prosecution first became aware o f the evidence which the witness would give on the date on which he is caiied" In the present appeal, as the record shows, the appellant had no objection to the notice for additional witness and was aware, as the prosecution during the preliminary hearing informed the trial court that they were intending to call an additional witness. It was not a surprise as contended by Mr. Kamyalile for the reason that Mr. Kifunda, advocate 15

for the appellant at the time, had knowledge before the hearing of the prosecution case commenced and raised no objection, we find this as an afterthought. Thus, there is no contravention of section 289 (1) and (3) of the CPA. We find ground 4 is not merited. Ground 5 of appeal is the culmination of whether the prosecution proved the charge against the appellant beyond reasonable doubt. The learned State Attorney conceded that the prosecution failed to prove the charge to the hilt and yielded that the prosecution could not prove beyond reasonable doubt the rightful owner of the motorcycle as argued by M r. Kamyalile, which we also find so. On our part we agree with the submissions of both learned counsels that the prosecution failed to show the direct link on how the appellant is connected with the murder of the deceased based on the doctrine of recent possession. Additionally, the prosecution failed to prove that the motorcycle which was alleged to have been stolen from the deceased and found in the possession of the appellant was the one and same. Further as we determined that exhibits PI, P2, P3, and P4 are expunged, the credibility of the remaining evidence relied upon by the prosecution is watered down and there is nothing left to support the charge against the appellant. We find that the prosecution failed to 16

prove the charge to the hilt. As these findings are sufficient to dispose of the appeal, we allow ground 5 of appeal. We quash the judgment of the High Court and set aside the sentence imposed on the appellant. We order the appellant's immediate release if he is not being held in custody for some other lawful cause. DATED at DODOMA this 1s t day of September, 2025. A. G. MWARIJA JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL Judgment delivered this 4th day of September, 2025 in the presence of the Appellant in person and Mr. David Mwakibolwa, learned State Attorney for the Respondent/Republic Via visual Court and Ms. Rehema Makakala, Court Clerk, is hereby certified as a true copy of the original.