Fikiri Francisco vs Republic (Criminal Appeal No. 547 of 2023) [2025] TZCA 868 (21 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCORAM: WAMBALI. J.A.. MGONYA, J.A. AND FELESHI, J.A.1 CRIMINAL APPEAL NO. 547 OF 2023 FI KIRI FRANCISCO ............................................................... APPELLANT VERSUS THE REPUBLIC.......................................... . ...... . ...... . ......... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mwanza) (Mnvukwa, 3.1 dated the 15th Day of October, 2021 in Criminal Sessions Case No. 86 of 2020 JUDGMENT OF THE COURT 21st July & 21st August, 2025 MGONYA, J.A.: The appellant, FIKIRI s/o FRANCISCO, was charged before the High Court of Tanzania at Mwanza (Mnyukwa, J.) with the offence of Murder in breach of section 196 of the Penal Code, Cap. 16. The appellant pleaded not guilty to the information after which a full trial was conducted. The brief facts of this case were that, on the 1s t day of April, 2018 at Isenyi Nyamizeze Village within Sengerema District in Mwanza Region, around 19:30 hours, when the deceased was in the kitchen preparing food, suddenly she was invaded by two persons who started to cut her body using a bush knife. The accused was allegedly

identified by the deceased's grandchildren namely, Rahel Martin (PW2) and Magreth Martin and the deceased herself. After the invaders had accomplished their mission, the grandchildren went inside the house to inform the deceased's husband who was also their grandfather, Kalogi Makiri (PW1) who was asleep about the tragedy. PW1 went outside and saw the deceased lying down crying "Fikiri Njoo unimalizie" PW1 shouted for help "mwano" before they took her to the hospital. Unfortunately, the deceased passed away on her way to the hospital. The autopsy of the deceased's body was conducted and its report (Exhibit PI) revealed the cause of the death was due to bleeding out of multiple cut wounds on the fore arm with multiple open fractures with exposed bones. The investigation commenced immediately and on 12/4/2018 around 23:00 hours, the appellant was apprehended at his house following the statement of complaint taken from PW1 when he reported the matter at the Police. He was later arraigned in court. After the full trial, the learned trial Judge was satisfied that the case was proved to the required standard. Basically, she agreed with a lady assessor and two gentlemen assessors who sat with her, all of whom were of the opinion that, it was the appellant who unlawfully terminated the life of

the deceased, Tabu d/o Lukandya. Consequently, he was convicted and sentenced to suffer death by hanging. Aggrieved by the conviction and sentence, the appellant filed the instant appeal raising five grounds of appeal in his substantive memorandum of appeal and five grounds of appeal in his supplementary memorandum of appeal. At the hearing of the appeal, the appellant was represented by Mr. Emmanuel Michael John, learned advocate; whereas the respondent Republic, had the services of Ms. Mwanahawa Changale, learned Senior State Attorney assisted by Mr. Adam Murusuli, learned State Attorney. Before commencement of the hearing, Mr. John abandoned the supplementary grounds of appeal and opted to argue the 1st, 2n d and 4th grounds conjointly from the substantive memorandum of appeal. For ease reference, the said grounds can be paraphrased as: 1st ground, that the appellant's identification at the scene of crime was not watertight; 2n d ground, that the trial court erred in relying on the deceased's dying declaration to ground conviction; and the 4th ground, that the prosecution case was not proved beyond reasonable doubt. Submitting on the 1s t ground of appeal, the learned counsel for the appellant attacked the visual identification in respect of the appellant.

He contended that, PW2 who is said to be an eye witness allegedly saw the appellant entering into the kitchen and attacked the deceased with a machete. However, it was the learned counsel's view that, PW2's testimony ought to have been critically scrutinized as stipulated in the cases of Waziri Amani v. Republic [1980] T.L.R. 250 and Petro Sule & Others v. Republic, (Criminal Appeal No. 475 of 2020) [2023] TZCA 17777 (25 October 2023, TanzLII) regarding the duration of time the appellant was under her observation at the scene of crime. Submitting further, the learned counsel likewise faulted PW2's assertion that she identified the appellant's attire. He argued that, there was no any explanation given on whether there was another person in that Village who had a similar attire. On the same line, Mr. John contended that, as PW2 did not identify the second invader, there was a possibility of having mistaken identity to the appellant at the scene of crime. Submitting on the reliability of the dying declaration, the learned counsel admitted that, dying declaration is admissible and can sustain conviction if properly analyzed. However, the learned counsel was of the view that, the trial Judge's reliance on PW1 and PW2 testimonies regarding the deceased's dying declaration was not safe and reliable. He further argued that, the dying declaration conditions set by the law were

not met as the same was not corroborated. It was his stance that, the dying declaration was not proved to sustain the appellant's conviction. On the complaint that the case was not proved beyond reasonable doubt, the learned counsel argued that, there was a major contradiction on the testimonies of PW1 and PW2, particularly on the source of light at the scene of crime. He stated, while PW1 testified the source of light at the scene of crime emanated from a torch, PW2 testified that, the source of light was from a solar light. According to the learned counsel, the contradictions eroded the basis of the appellant's identification at the scene. Adding further, the learned counsel argued that, there is no evidence that the appellant disappeared from the Village as he was arrested after a considerable period from the date of incident. It was his concern that, if the appellant was identified in the earliest stage, there was no justification for a delay in arresting him. Mr. John therefore prayed that the appeal be allowed as the case for the prosecution was not proved beyond reasonable doubt. In response, on the first ground, the learned Senior State Attorney submitted that, there was no mistaken identity of the appellant at the scene of crime. She submitted that, PW2 saw and identified the appellant who is also his brother and a grandchild to the deceased. That

PW2's testimony indicated that, the room was small with bright light as there was a solar energy light which one could move with it. Ms. Changale referred us to the testimony of PW1 in the record of appeal, where he averred that, when he went to sleep, he gave his wife a torch to assist her while cooking in the kitchen. The learned Senior State Attorney stressed that, the appellant was well known to PW2 and the deceased and that there was also a moonlight which assisted them in identifying the appellant. It was her firm stance that, there was no possibility of mistaken identity under the given circumstances. To bolster her submission, the cases of Benjamini Mpilimi & Others v. Republic (Criminal Appel No. 69 of 2001) [2004] TZCA 87 (18 May 2004, TanzLII) and EX G 2434 PC. George v. Republic (Criminal Appeal No. 8 of 2018) [2022] TZCA 609 (6 October 2022, TanzLII) were cited. The learned Senior State Attorney contended further that, the trial court was right to find the prosecution witnesses credible, as immediately after the incident, PW2 promptly mentioned the appellant to PW1 as the one who attacked the deceased. Referring to EX G 2434 PC. George v. Republic (supra), Ms. Changale argued that, it is only the trial court which can perceive the accused's demeanour and satisfy itself on the guilty of the same or otherwise. Therefore, she urged us to

believe the prosecution witnesses as they were credible before the trial court. Premising on what she submitted above, she urged the Court to dismiss the first ground of appeal. In regard to the second ground on a dying declaration, the learned Senior State Attorney submitted that, it was justified by the trial court that, before her death, the deceased being cut with a machete by invaders, complained "Fikiri njoo unimalize", meaning that "Fikiri come and finish me." According to Ms. Changale, the deceased seemed to have seen and identified the appellant to be the one who attacked her. To her, the statement was a pure dying declaration as it did not connote any contradiction. It was thus the learned counsel's stance that, the prosecution's case was proved beyond reasonable doubt. She thus prayed the Court to dismiss the second ground of appeal. On the last ground that the case was not proved beyond reasonable doubt, Ms. Changale implored the Court to find that the same was proved because the witnesses were credible and reliable. Therefore, the appellant was properly convicted and sentenced. In rejoinder, Mr. John had nothing to rejoin, but reiterated his earlier submission and urged the Court to decide based on the evidence of the parties on the record.

On our part, having carefully heard and considered the parties' submissions, we will begin with the 1s t ground of appeal regarding the appellant's identification at the scene of crime. During hearing of the appeal, Ms. Changale sought to convince us that the light from the torch powered by solar energy used by PW2 and the deceased in the kitchen was enough to support the clear identification of the appellant at the scene of crime as he was well known to PW2 and the deceased. It is in the record of appeal that, PW2 testified before the trial court that, when the invaders went to their home, they knocked and entered into the kitchen, she identified the appellant after the deceased lightened the kitchen using a solar light which was very bright assisted by the moonlight. However, her evidence is contrary to that of PW1, the deceased's husband, who testified to have given his wife a torch so that she could use it during preparation of the food. We note that there is contradiction of the source of light from these two prosecution witnesses. While PW1 stated that the light came from the torch which he gave the deceased, PW2 stated that there was a solar light which made her saw the appellant with his accomplice but managed to identify the appellant only. s

From the record, it is not disputed that the appellant, PW1, PW2 and the deceased were relatives, therefore, there was a possibility of identifying the appellant by recognition. However, in the absence of clear description of the intensity of the light that illuminated the scene of crime whether the light came from the solar light or the torch, it cannot certainly be said that the appellant was properly identified. Under the circumstances, we have asked ourselves, what was the need of PW1 giving the deceased a torch to use it during cooking if there was enough light from a solar light in the kitchen? This leads us to the view that there was a need of light in the kitchen to enable the deceased to use it during cooking. Therefore, we are not convinced that, apart from the torch from PW1, there was another source of light in the kitchen to assist proper identification of the appellant as it was testified by PW2. As PW2 was the only eye witness to the crime, to cure this uncertainty, there was a need for prosecution to call Magreth, the other grandchild who is said to have been with PW2 throughout during the tragedy to testify on her part what she saw to strengthen the appellant's identity or otherwise. As far as the moonlight is concerned, it is a common knowledge that brightness of moonlight is not a standard light all the time. It varies

according to the seasons and other factors. Therefore, in the circumstances where the intensity of the moon light at the scene of crime is also not stated, the possibilities of having mistaken identity cannot be ruled out. We are surprised that, the undescribed intensity of the moonlight enabled PW2 to identify the appellant as she testified. Essentially, we expected her to elaborate more on the intensity of the said moonlight. However, that was not the case. In Osca Mkondya v. D.P.P., Criminal Appeal No. 505 of 2017, guided by its previous decision in Juma Hamad v. Republic, Criminal Appeal No. 141 of 2014 (both unreported), the Court stated: "When it comes to the issue o f tight, dear evidence must be given by the prosecution to establish beyond reasonable doubt that the light retied on by the witnesses was reasonably bright to enable identifying witness to see and positively identify the accused persons. Bare assertions that "there was light’' would not suffice In her submission, Ms. Changale urged us to consider the fact that the appellant and both PW2 and the deceased knew each other even before the incident. However, it is so unfortunate that PW2 being an eye witness, did not state the time she spent with the appellant at the scene

of crime. In appeals such as this one, we are enjoined to base our decisions on the real facts rather than speculations that there was enough light that enabled the witness to identify the assailant without obstacle. Therefore, we are not prepared to hold that the time spent by PW2 to identify the appellant with the aid of undescribed intensity of moonlight enabled her to properly identify the appellant at the scene of crime. Further, the fact that PW2 knew the appellant before does not hold water as we cannot guarantee the appellant's identification in an unfavourable situation like in the current case where the offence was committed at night and the undescribed moonlight is said to be among the sources of light. In the case of Said Chaly Scania v. Republic (Criminal Appeal 69 of 2005) [2007] TZCA 180 (16 March 2007, TanzLII), it was observed that: "It was unfortunate the public prosecutor was not eliciting dear evidence from PW2. After the witness said the robbers directed torchlight to his face and, perhaps realizing that such evidence was not helpful, he then said "There was light in my room " again\ without elaborating. Was it light from the bandits' torch or from another source? I f from another source, which was it and how intense was it? We think that where a witness is ii

testifying about identifying another person in unfavourable circumstances, like during the night, he must give dear evidence which leaves no doubt that the identification is correct and reliable. To do so, he will need to mention all the aids to unmistaken identification like proximity to the person being identified, the source o f light and its intensity, the length o f time the person being identified was within view and also whether the person is familiar or a stranger. We are not attempting to exhaust the circumstances for accurate identification but this Court has on many occasions emphasized on the need to consider with great caution evidence o f visual identification. Some o f those decisions are the celebrated decision in Waziri Amani v. R [1980] TLR 250 at page 252 and Lusabanya Siyantemu v. R [1980] TLR 275. The Eastern Africa Court o f Appeal had the following landmark decisions on evidence o f identification\ Abdallah Bin Wendo and Another v. R [1953] 20 EACA 116 and R. v. Mohamed Bin Ai/ui [1942] 9-10 EACA 72." We have noted further that PW2 in her statement before the police, she did not state having identified the appellant through his attire and face, contrary to her testimony at the trial. She admitted during 12

cross examination and the statement was tendered and admitted as Exh. D2. It is further noted that the said statement was recorded on 10/8/2018 almost after four months while the incident occurred on 1/4/2018. This weakened PW2's credibility and thus she cannot be a reliable witness to prove identification and corroborate the dying declaration. Thus, as PW2 was a key witness to what happened, the evidence of PW1 cannot corroborate her weak evidence. Having considered circumstances of this case, particularly the unreliable evidence of PW2 before the trial which was challenged during cross examination, we are in agreement with Mr. John that, it is not safe to conclude that the appellant was properly identified and recognized by PW2 at the scene of crime while the intensity of light was not sufficiently ascertained. Thus, we find that the 1s t ground of appeal has merit. On the 2n d ground of appeal, the appellant is challenging the trial court's decision in relying on the deceased's dying declaration to ground conviction. In this case, there is no dispute that the deceased, Tabu d/o Lukandya died a violent death. This fact has been corroborated by PW1, the deceased's husband and PW2 the deceased's grandchild who had a chance to see her with multiple cuts in her body before they took her to the hospital. More evidence that the deceased died out of brutal death is found from the testimony of PW3, the doctor who conducted the 13

autopsy and tendered its report (Exhibit PI). The issue before us to determine is who caused the death of Tabu d/o Lukandya, and in particular, whether the deceased was killed by the appellant. Admittedly, dying declaration was among the vital evidence relied by the trial Judge to convict the appellant. According to the record of appeal, it was the trial Judge's findings that: " Finally, on the fourth aspect, I am fully aware that a dying declaration fails under the category o f evidence in which material corroboration is necessary before it can be accepted and relied upon as it was observed in the case o f Crospery Ntagalinda @ Koro v. Republic, Criminal Appeal No. 312 o f 2015 (unreported), and the case o f The Republic v. Joseph Ngaikwamo [1977] TLR No. 6. Therefore, apart from the evidence ofPW l, there is also evidence o f PW2 who eye witnessed the deceased. Guided by the above authority I hold that, in the instant case, the evidence o f dying declaration was reliable and therefore can be acted upon by this court"

The evidence of dying declaration was discussed at length in the case of Onael Dauson Macha v. Republic (Criminal Appeal No. 214 of 2007) [2007] TZCA 296 (1 November 2007, TanzLII). The Court stated: . It is a statement made by a deceased person as to the cause o f his death." From the above definition, a dying declaration, refers to a statement made by a person who believes he is about to die. If it qualifies the test of being corroborated as above stated, the statement is often admissible as evidence in court, even though it is hearsay, due to the assumption that a person facing death would tell the truth. Regarding the weight to be attached to such evidence, the Court in Onael Dauson Macha v. Republic (supra), had this to say: "It is now settled law that where a dying declaration is admitted in evidence, it should be scrupulously scrutinized, and in order to be acted on, corroboration is highly desirable." [Emphasis supplied]. See also the cases of R. v. Mohamed Shedaffa & Three Others [1984] T.L.R. 95 and Africa Mwambogo v. Republic [1984] T.L.R. 240. 15

Equally in an English case of R. v. Perry (1909) 2 KB 697, it was held that for a dying declaration to be admissible, the declarant must have a settled hopeless expectation of death. The rationale behind admitting dying declaration is the belief that a person facing death would have no motive to lie. However, the weight given to such statements depends on the circumstances and the declarant's state of mind. In essence, referring to the case of R. v. Perry (supra), a dying declaration must meet certain criteria to be considered valid. That, the person making the statement must believe he is going to die and that, the statement should relate to the cause or circumstances of his death. Reverting back to the appeal at hand, we have carefully gone through the alleged deceased's dying declaration as testified by both PW1 and PW2 as demonstrated above. We noted that, PW1 in his cautioned statement recorded on 1s t April, 2018 stated that: "Niliamka na kwenda maeneo ya jikoni ambapo nilimkuta mke wangu ameanguka chini akiwa amekatwa mapanga kichwani, kwenye mdomo, mkono na upande wa kushoto na pia sehemu mbalimbali za mwili wake na alilala chali. Muda huo mke wangu alikuwa akiongea, ndipo atiposema kwamba "NATEMWAGA NA FIK IR J FRANCISCO". [Emphasis Added]

On the other hand, when PW1 was testifying, he said: "When I was in the kitchen , my wife complained that, Fikiri cut her with the machete on the arms, mouth and on the heard. She was complaining that, "Fikiri njoo unim alizie."..." [Emphasis added] Likewise, the testimony by PW2, an eye witness who was with the deceased in the kitchen when the tragedy occurred, testified before the trial court that before her death the deceased had complained saying: "F ik iri um eniua b iia ya kosa, njoo unim alize." On our part, in accessing the reliability of the above statements, starting with the evidence from PWl's cautioned statement above, the wording "NATEMWAGA NA FIK IR I FRANCISCO" was never translated by any prosecution witness to enable the court know the exact meaning of the same. Second, the statement heard and uttered by PW1 and PW2 above regarding the deceased's dying declaration, differs from one another. While PW1 states that the deceased complained that "Fikiri njoo unim alizie", PW2 said that the deceased was crying, "Fikiri um eniua b iia ya kosa, njoo unim alize." From the above versions of the alleged dying declaration from the deceased, it is our firm view that, the admissibility of dying declaration 17

in this case, was to be taken cautiously and carefully by the trial court given the circumstances surrounding the alleged dying declaration. Further, we are of the firm view that, further corroboration from the neighbours who were allegedly around was needed, apart from that of PW1 and PW2 before convicting the appellant to clear the uncertainty pointed above. Unfortunately, no such corroborative evidence was available, which renders the evidence of the dying declaration highly suspicious and unreliable. In the absence of the said corroborative evidence, we are satisfied that, it was unsafe for the trial court to convict the appellant relying on the uncorroborated evidence of a dying declaration. For the reasons we have stated above, we are constrained to allow the second ground of appeal. Finally on the 4th ground of appeal premised on our deliberation and analysis of the evidence in respect of the allowed grounds of appeal, we are in agreement with the learned counsel for the appellant that, indeed, the case against the appellant before the trial court was not proved beyond reasonable doubt to sustain conviction. Moreover, having found that the evidence of PW2 was discredited during cross examination in which her statement was tendered as Exh. D2 in which

she testified differently on the attire of the appellant, she is not reliable to prove the case. Consequently, we allow the appeal. In the event, we proceed to quash the conviction of the appellant and set aside the sentence of death imposed on him. The appellant is to be released forthwith from prison unless he is otherwise legally held. DATED at MWANZA this 15th day of August, 2025. F. L. K. WAMBALI JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL Judgment delivered this 21s t day of August, 2025 in the presence of the appellant in person and Ms. Revina Tibilengwa, learned Principal State Attorney for the respondent/Republic both through Virtual Court; is hereby certified as a true copy of the original. W. A. HAMZA DEPUTY REGISTRAR COURT OF APPEAL