Damian Andrea @ Kankono vs Republic (Criminal Appeal No. 276 of 2022) [2024] TZCA 1293 (18 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCORUM : KEREFU. J.A., MWAMPASHI. J.A. And FELESHI. J.A.T CRIMINAL APPEAL NO. 276 of 2022 DAMIAN ANDREA @ K A N K O N O ............ .......................................... APPELLANT VERSUS THE R EP U B LIC ...................................... ......................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Geita) f ltem ba. 1 .} dated the 17th day of June, 2022 in Criminal Sessions Case No. 130 of 2022 JUDGMENT OF THE COURT 26th November & 18th December, 2024 FELESHI, J.A.: The appellant, Damian Andrea @ Kankono was charged and found guilty of the offence of murder by the High Court of Tanzania, Mwanza Registry, sitting at Geita, following the death of one Samwel Songoma who was shot dead on 2/7/2013 at Lyobahika Village in the District of Bukombe in the Region of Geita. Upon his plea of not guilty, while the prosecution called eight witnesses and tendered ten exhibits to prove its case, the defence had one witness, the appellant who testified as DW1.

At the end, having duly convicted, he was condemned to the death sentence. The brief substance of the case giving rise of this appeal as per the record of appeal are that: the deceased was shot dead in a robbery incident while at his home on 2/7/2013. According to the autopsy report (Exhibit P9), he died due to 1 hemorrhage caused by ruptured injured abdominal aorta and m esentery artery ' His wife Helena Hemiliana (PW4), a lone eyewitness, identified one mason known as Kankono (the appellant), a person without wrist, by face, because she used to see him around. The incident was reported to the police and the investigation ensued. F.1568 D/SGT Erick (PW1), A/Insp. Godson Matamburo (PW3) and ASP Maro Fortunatus Filipo (PW5) went to the scene where they collected one cartridge and drew the sketch plan. They arrested the appellant on the same date from his home at Ibamba Village. Upon the police interrogation, the appellant allegedly led PW1 and his colleagues to his house and showed where he had hid, behind his house, a gun, known as A.K. 47 also known as SMG with serial no. 1960/3n9524 which was seized together with three cartridges and three magazines with 78 bullets. PW1 tendered the exhibits collected from the scene and those they seized from the appellant's home and they were

all admitted in evidence: SMG with serial no. 1960/3n 9524 (Exhibit PI); 72 bullets (Exhibit P2); three magazines (Exhibit P3); an envelope with three cartridges (Exhibit P4); an envelope with one cartridge (Exhibit P5) and the seizure certificate (Exhibit P6). PW3 tendered the sketch plan which was admitted in evidence as Exhibit P8. The seizure of exhibits Exhibit PI to Exhibit P4 by PW1 was also witnessed by a Village Executive Officer (VEO) and a Ten-cell leader. No. E.3977 D/SGT Aristides (PW6) per pages 52, 76 and 77 of the record of appeal was assigned to take exhibits PI, P2, P3, P4 and P5 from No. E.5914 CPL Adrian, a police exhibit keeper, and send them to Dar es Salaam for ballistic examination. He complied and at the Ballistic Laborary in Dar es Salaam he handed the same to SP John Mayunga (PW2), the Head of the Ballistic Laboratory, who examined the exhibits and prepared a Ballistic Examination report which revealed that, exhibit P5, which was collected from the scene of crime, was fired from exhibit PI, which was retrieved from the appellant. PW2 tendered the examination report which was admitted in evidence as Exhibit P7. Then, PW6 handed back exhibits PI, P2, P3, P4 and P5 to No. E.5914 CPL Adrian who on retirement handed them over to No.F.3032 SGT Michael (PW9).

In his defence, DW1 disassociated himself from the charged offence. He testified that, he was arrested when preparing to go for his business, as he used to sell secondhand clothes (mitumba). Then, he was taken to Runzewe Police Station where he was shown one person and asked if he knew him which he denied. Then, he was beaten and thereafter, a gun was brought to him and he was forced to admit to be his, and was forced to sign on a written statement which he put his name without knowing its contents. He questioned, how could be possible to have a farm at his home while he lived at a town centre. And that his finger prints were not taken to examine if he was the last person to use exhibit PI. He also complained about the prosecution not calling any of those who witnessed the seizure of the gun. About being mentioned as a person without a wrist, he said, there were many persons of the same appearance in the village including one Abel, Thus, that the prosecution's case was not proved. Having taken into consideration the evidence of both sides, the High Court (the trial court), as aforesaid, found him guilty and sentenced him to death sentence. Aggrieved, the appellant lodged his appeal to this Court.

At the hearing of the appeal, the appellant was represented by Mr. Fidelis Cassian Mtewele, learned advocate, while the respondent, Republic, was represented by Ms. Verediana Peter Mlenza, learned Senior State Attorney. The earlier on memorandum and supplementary memorandum of appeal filed by the appellant on 18/8/2022 and 17/1/2023 respectively, were abandoned by Mr. Mtewele who came up with the substituted grounds of appeal with the following grounds:

1. Thatr the evidence o f PW3 A/INSP GODSON MATAMBURO, PW4 HELENA HEMILIANA AND PW5 ASP MARO FORTUNATUS FILIPO who were not listed as the prosecution witnesses during the com m ittal proceedings were taken illegally hence inadm issible and unreliable.

2. The Notice o f intention to add witness and exhibits filed by the Prosecution on 13.6.2022 was illegally adm itted as the tria l court was Functus O fficial to recover the same.

3. The Notice o f intetion to add witness and exhibits filed by the prosecution on 9.6.2022 was illegally adm itted by the tria l court,

4. The tria l court convicted the appellant in a case that was unfairly conducted.

5. The Certificate o f Search (Exhibit P6) and suspected item s adm itted a t the tria l were illegal, rendering the aiiegediy seized item s and the corresponding certificates o f search inadm issible and or unreliable.

6. The evidence against the appellant was contradictory and unreliable.

7. That, the learned tria l judge erred in law and fact to convict the appellant while the prosecution side failed to prove their case beyond reasonable doubt In support of the appeal, Mr. Mtewele argued for the 1st ground that, the evidence by PW3, PW4 and PW5 was illegally received by the trial court because their names and substance of their evidence were not part of the committal proceedings in terms of section 246 (1) of the Criminal Procedure Act, Chapter 20 (the CPA) and no notice was issued under section 289 of the CPA to call them as additional witnesses. He thus implored the Court to expunge their evidence including exhibit P8 from the record. With regards to the 2n d and 3rd grounds, Mr. Mtewele faulted the trial court for acting on incompetent notices of intention to call one CPL ARISTIDES/E.3977 D/SGT ARISTIDES (later testified as PW6) under section 289 (1) (2) and (3) of the CPA, dated 9/6/2022 and 13/6/2022,

respectively. He said, PW6 ought not to have testified on 13/6/2022 because the notice to add him as a witness and to tender exhibits was rejected by the trial court on 9/6/2022 for failure to abide to the law. Besides, he argued, the notice was issued on the date of hearing of the case. However, he said, the ruling of the trial court allowed only the ballistic report which was tendered by PW2 and was admitted in evidence as exhibit P7 on 10/6/2022 as it was attached and duly served. He also stressed that, the trial court had become functus officio. For that matter, Mr. Mtewele beseeched the Court to expunge the evidence of PW6 together with exhibits P7, P 10a and PI0b from the record. As to the 5th, 6th, and 7th grounds, Mr. Mtewele while referring us to gape 100 of the record of appeal, submitted that, exhibit P6 contravened section 38 of the CPA as the search was conducted by a police Corporal contrary to the procedure which require searches to be carried out by the Officer Commanding Station (OCS) or an Inspector or a police authorized by them in writing. Besides, the Police General Orders (PGO) directs search warrants to be in prescribed Form PF 91 and to specify the offence in question. That, exhibit P6 did not disclose the offence and despite exhibit P6 indicating that the search was

witnessed by independent witnesses mentioned by the appellant at page 95 of the record of appeal, they did not testify. He further argued that the nickname "Kankono" despite being refuted by the appellant at the preliminary hearing stage as shown at page 25 of the record of appeal, was not proved to be his name. The learned advocate also faulted the trial court for relying on the oral confession made by the appellant to PW1 and PW5 as shown at page 132 of the record of appeal and for relying on PW4's evidence that she identified him. He said, the appellant was not a free agent and the alleged confession was violative of section 53 of the CPA. After all, he argued, the record of appeal bears out at page 31 that, PW1 did not interrogate the appellant, but it was PW5 who interrogated him. He argued, as PW5's evidence is subject to be expunged, the said confession will be unfounded because, no further interrogation was made under section 57 of the CPA, and he was not taken to the justice of peace to procure his extra judicial statement. Finally, Mr. Mtewele submitted on exhibit P5 which he contended that, as it was not produced and listed during committal proceedings, It should be expunged from the record for contravening section 246 (2) of

the CPA. In the end, he urged the Court to allow the appeal and set free the appellant. In reply, the learned Senior State Attorney, opposed the appeal. As for the first ground, Ms. Mlenza readily conceded to Mr. Mtewele's submission and prayer that PW3 and PW5 be expunged from the record as their evidence was received contrary to the requirement of the law. However, she forcefully argued that, per pages 5, 66, 93 of the record of appeal, Helena Tumunyanda and Helena Hemiliana is one and the same person. To her, had the two names been of two distinct persons, the defence would have objected or cross-examined PW4 and their failure to do so left the evidence of PW4 in its totality, justifying that, the two names refer to one and the same person. About the 2n d ground, she conceded that, the trial court was functus officio as regards to the second notice regarding calling PW6 as an additional witness because that similarly was the subject in the first notice where upon objection for that prayer was declined by the trial court. However, as regards to the ballistic report, Ms. Mlenza had a different view. She argued that, the said report was rightly admitted under the first notice and upon the trial court's ruling at pages 9 to 12 of the record of appeal its contents were attached to the notice. As to the

complaint that, the first notice was short, the learned Senior State Attorney vehemently argued that, it was reasonable, and that, the power to decide whether notice was short or not, in terms of section 289 (3) of the CPA, was in the trial court's discretion which this Court, she prayed, should hesitate to interfere with. Submitting on the 5th ground, the learned Senior State Attorney argued that, the initial primary objective the investigation team had, was not searching but, to arrest the appellant, the exercise which did not need independent witnesses. That, it was his arrest which led to discovery of evidence. She further contended that, the discovery of evidence in question was governed by sections 3 and 31 of the Evidence Act, Chapter 6 (the Evidence Act) and not sections 38 and 57 of the CPA. To support her argument, Ms. Mlenza cited our decision in the cases of Mayunga Mwenelwa v. Republic, (Criminal Appeal No. 312 of 2020) [2024] TZCA 605 (19 July 2024) and DPP v. Kristina D/o Biskasevskaja, Criminal Appeal No. 76 of 2016, (CAT Arusha (unreported)) [201] TZCA 278 (11 August, 2017). As to the 7th ground, the learned Senior State Attorney referred us to page 67 of the record of appeal where PW4 testified that, she recognized one person by face called Kankono, a resident of Ibamba.

Ms. Mlenza argued that, PW4 described Kankono by features as she used to see him around. So, his defence that, he was not the only person without wrist in the village, was an afterthought, considering that, PW4 was not cross-examined. She cited the case of Issa Hassani Uki v. Republic (Criminal Appeal No. 129 of 2017) [2018] TZCA 361 (10 May 2018). Therefore, Ms. Mlenza contended that, the defence is estopped to raise complaint on appeal on the evidence they did not challenge at the trial. As regards to Mr. Mtewele's submission on exhibit P5 being not covered by the committal proceedings, Ms. Mlenza conceded that it was not shown or listed as an exhibit. However, she argued that it's subsequent admission in evidence resulted from the notice which was issued and served to the defence. To buttress her position, Ms. Mlenza referred us to our decision in the cases of Ester Jofrey Lyimo v. Republic (Criminal Appeal No. 123 of 2020) [2022] TZCA 197 (14 April 2022) and Bahati Makeja v. Republic (Criminal Appeal 118 of 2006) [2011] TZCA 31 (28 February 2011). She summed up arguing that, PW4 was a credible witness for she was able to mention the appellant's name at the earliest time. To buttress her argument, she cited the case of Godfrey Anthony @

Sengeri @ Nyachange @ Andrea v. Republic, (Criminal Appeal No. 536 of 2020) [2024] TZCA 589 (18 July 2024). In rejoinder, Mr. Mtewele just reiterated his earlier submissions. We have dispassionately considered the rival submissions by the parties' counsels as well as the record and the law. We will determine whether the appeal has merit. However, this being a first appeal, the Court has duty to re-valuate the entire evidence, and upon scrutiny, if warranted, arrive at its own conclusion of facts per the decision in D.R.Pandya v. Republic, [1957] E.A 336 and Reuben Mhangwa & Another v. Republic, Criminal Appeal No. 99 of 2007 [2019] TZCA 341: [30 September 2019]. We find it important to observe at the outset that, at page 132 of the record of appeal it is exposed that, the appellant's conviction was based on three pieces of evidence: one, virtual identification by PW4; two, appellant's oral confessions to PW1 and PW5; and three, the unbroken chain of the fire arm from when it was seized to when it was admitted in evidence. We have to start with the first ground, which has consensus of legal arguments by both counsel that, the names of PW3 and PW5 were

not listed during committal proceedings, hence, contravening the mandatory requirements of sections 246 (2) and 247 of the CPA which provide that: "Section 246 (2) Upon appearance o f the accused person before it, the su b o rd in a te co u rt s h a ll re a d a n d e x p la in o r cause to be re a d to th e accu sed p erso n th e in fo rm a tio n b ro u g h t a g a in st h im a s w e ll a s th e sta te m e n ts o r docum ents co n ta in in g th e su b stan ce o f th e evid en ce o f w itn esse s whom the Director o f Pubiic Prosecutions intends to ca ii a t the trial . " [ Emphasis added] '!Section 247 Im m ediately after com plying with the provisions o f sections 245 and 246, th e co u rt s h a ll m ake a lis t o f a ll w itn esses w hom th e D ire cto r o f P u b lic P ro se cu tio n s in te n d s to c a ll a n d s h a ll a sk th e accu se d p erso n w h eth er h e in te n d s to c a ll w itn e sses a t th e tr ia l and, i f so, w h eth er he d e sire s to g iv e th e ir nam es a n d ad d re sse s so that they may be summoned and if he does the court shall record the names and addresses o f the witness whom the accused mentions . " [Emphasis added]

In view of the above provisions, we are of settled view that, the practical objective of these provisions is to give effect the constitutional safeguards promulgated to ensure citizen do not suffer from any forms of malpractices and unfair trials. That, they instead, get their wide- ranged rights, including, but not limited to- equal treatment before the law. The provisions accord an accused person in conflict with the law, a fair trial by ensuring that he understands the nature and magnitude of the case facing him and becomes well placed to prepare and mount his defence. Conversely, the provisions of sections 289 (1) and (2) (e) of the CPA and section 34 B (2) of the Evidence Act, provide a leeway for parties to a criminal trial to introduce a witness whose statement or substance of evidence was not read at committal proceedings by giving notices in writing to the accused person or his advocate of the intention to call such witness, with a view to curing the procedural and evidential deficiencies that have occurred, on case by case basis, to ensure fair trial is realized. See for instance Magige Marwa Mwita and 2 Others v. Republic (Criminal Appeal No. 621 of 2021) [2024] TZCA 994 (28 October 2024) and Mussa Mwaikunda v. Republic, [2006] TLR 287.

In a litany of authorities, including the recent one in the case of Itozya Amos @ John Teru v. Republic (Criminal Appeal No. 162 of 2021) [2024] TZCA 1181 (3 December 2024), the Court held that, failure to follow the procedure in question is to render the evidence or exhibit produced illegally admitted. That, its effect is to have the same expunged from the record. See- Remina Omary Abdul v. Republic (Criminal Appeal No. 189 of 2020) [2022] TZCA 118 (15 March 2022), Mussa Ramadhani Magae v. Republic, Criminal Appeal No. 545 of 2021 and Ntutuwambula s/o Ukenyenge @ Abbas s/o Charles v. Republic (Criminal Appeal No. 341 of 2021) [2023] TZCA 17877 (22 November 2023). In view of the above, therefore, as in the instant appeal, we find the evidence of PW3 and PW5 squarely contravened sections 246 (2) and 247 of the CPA, as submitted by both counsel, the same is hereby expunged from the record. We, as well, consequently expunge exhibit P8 which was tendered by PW3. In the same vein, it was also argued that PW4 was not part to the committal proceedings. The basis of the complaint is on the differences between the name of fHelena Temunyanda found in the list of witnesses during committal and Helena Hemiliana who testified during trial as

PW4. As we have intimated above, section 246 (2) of the CPA requires all witnesses and substances of the evidence to be read and explained to the accused before committed for trial. Otherwise, a notice has to be given to add such witness and his evidential substances under section 289 (1) and (2) of the CPA, if he can be procured for trial, or use his statement and substance of his evidence under section 34 B (2) of the Evidence Act, if he cannot be procured to attend trial. We have considered the complaint and revisited the record of appeal. We have seen the differences pointed out by Mr. Mtewele. Whereas on 8/6/2022 it is shown at page 5 of the record of appeal that Helena Temunyanda of Lyobahika Village was listed as a prosecution witness, it was Helena Hemiliana, resident of Runzewe who on 13/6/2022 is shown, at page 66 of the record of appeal that, to have taken an oath and then testified as PW4. Notably, that was a one-week interval from when committal proceedings were conducted to when the case was called on for trial. Strangely, during defence hearing, another name of Helena Nteminyanda featured in the proceedings as shown at page 93 of the record of appeal, but no recourse was taken to resolve the differences. Now, as the weakness of defence cannot, in terms of section 114 of the Evidence Act, be basis of conviction, we think, the

prosecution during cross-examination, ought to have inquired into the differences to ascertain whether PW4 in the witnesses' dock was also known as Helena Temunyanda, a resident of Lyobahika Village, whose statement was recorded by the police and, at a later stage, read out to the appellant during committal proceedings. The issue now, is whether the two or three names refer to one and same person. We think they are not. In the case of Catherine Honorati v. CRDB Bank (Civil Appeal No. 314 of 2019) [2023] TZCA 17985 (15 December 2023) there was contention on whether Honorati John Kilawe was the same as Honorati Biashara John Lyombe. We came to the conclusion that those were two different names. In the instant case, the differences were never reconciled. The defence attempted, as shown at page 69 of the record of appeal, but it never resolved it. Therefore, in the absence of proof to the contrary, we are inclined to agree with Mr. Mtewele that, PW4 (Helena Hemiliana) was not made part of the committal proceedings under the procedure we alluded to above. Likewise, no notice was issued under section 289 (1) and (2) of the CPA to call her as an additional witness.

Perhaps, for purposes of fortifying our conclusion above, we take liberty to say this, that, credibility and reliability of prosecution's witnesses is built in different stages. To our knowledge, no witness can appear to testify before subordinate courts and High Court unless at least three basic stages have been observed: one, his statement has been recorded by the investigation; two, his statement has been scrutinized by the Director of Public Prosecutions; and three, his statement and substance of his evidence have been introduced to the court by the Director of Public Prosecution under applicable laws, depending on the type and nature of the case at hand. For that matter, for example, section 10 (3), (3A), (3B) and (3C) of the CPA provide: "(3) Any police officer making an investigation may, subject to the other provisions o f this Part, examine oraiiy any person supposed to be a cq u a in te d w ith th e fa c ts an d circu m stan ces o f the case a n d shaH red u ce in to w ritin g a n y sta te m e n t m ade b y th e p erso n so exam ined. (3A) The whole o f the statement, including any question in clarification asked by the police officer and the answer to it, s h a ii be re co rd e d in fu ii in K is w a h iii o r in E n g lish o r in a n y o th e r lan g u ag e in w hich the p erso n is exam ined,

and the record shall be shown or read over to him or if he does not understand the language in which it is written it shall be interpreted to him in a language he understands and he sh all be a t liberty to explain or add to his statem ent (SB) The person examined s h a ll th en sig n th a t sta te m e n t im m e d ia te ly below the last line o f the record o f that statem ent and may ca ll upon any person in attendance to sign as a witness to his signature. (3C) The police officer recording the statem ent s h a ii ap p en d b e lo w each sta te m e n t recorded by him the follow ing certificate: — "I. ............ , hereby declare that I have fa ith fu lly a n d a ccu ra te ly re co rd e d th e sta te m e n t o f the above-named. ............... " On the other hand, section 245 (5), (6) and (7) of the CPA provide: "(5) I f the Director o f Public Prosecutions or that other public officer, a fte r stu d y in g th e p o lic e case file a n d th e sta te m e n ts o f th e in te n d e d w itn esses, is o f the view that the evidence a vaiiabie is in s u ffic ie n t to w a rra n t th e in s titu tio n o f a p ro se cu tio n , or it is otherwise inadvisable to prosecute, he shall, where the

accused has already been charged, im m ediately enter a nolle prosequi unless he has reason to believe that further investigations can change the p o s itio n in which case he shall cause further investigations to be carried out (6) I f the Director o f Public Prosecutions or that other public officer, a fte r stu d yin g th e p o lic e case file an d th e sta te m e n ts o f th e in te n d e d w itn esses, decides that the evidence available, or the case as such, warrants putting the suspect on trial, he s h a ll d raw up o r cause to be draw n up an in fo rm a tio n in acco rd an ce w ith la w and, w hen sig n e d b y him , su b m it it to g e th e r w ith th re e co p ie s o f each o f th e sta te m e n ts o f w itn esse s sent to him under subsection (4), including a n y docum ent co n ta in in g th e su b stan ce o f th e evid en ce o f a n y w itn e ss w ho h as n o t m ade a w ritte n sta te m e n t (7) A fte r an in fo rm a tio n is file d in th e H ig h C ourt, the Registrar shall cause a copy o f it to be delivered to the district court where the accused was first presented or within the local lim its o f which the accused resides."

Therefore, there is no doubt whatsoever in our mind, that, for committal offences, the legal framework above, is an overall practical guarantee for committing courts that, when are moved to commit accused persons for trial, under sections 243 and 246 of the CPA and other related provisions under other laws, do not entertain information, statements and any substance, which were not filed in the trial court by the Director of Public Prosecutions before. Besides, we wish also to observe that, in our view, the strict scrutiny carried out by the investigation and prosecution is geared to avoid producing to court witnesses who may not be material witnesses, hence, happen undermining the principle of fair trial. Notably, when cases are later called on for hearing, witnesses are bound to testify on oaths or affirmations, in terms of section 198 of the CPA and other relevant laws, including section 34 B (2) (c) of the Evidence Act. Section 198 (1) of the CPA provides: "Every witness in a crim inal cause or m atter shall, subject to the provisions o f any other written law to the contrary, be examined upon oath or affirm ation in accordance with the provisions o f the Oaths and Statutory Declarations A c t "

In view of the above, we do not think that PW4 was exempted from the legal mechanism we have alluded to above. The respondent, in our view, was duty bound, when preparing her to testify, to first verify whether as a witness had passed through the stages we have mentioned and take appropriate measures depending on the outcome of his verification. This was so crucial, because, in her testimony, PW4 purported to have given her statement to the police, the assertion which on itself, could not, in the absence of the said verification, remove possibility of any person to disguise and assume her role during trial. With the above exposition, with all due respect to Ms. Mlenza, we thus find ourselves, unable to accept her contention that, Helena Temunyanda and Helena Hemiliana (PW4) are one and the same person, as in this case, neither a deed poll on change of names nor any other evidence was led during trial, to resolve the impugned differences. As this defect is incurable under section 388 of the CPA, we are thus inclined to accede to Mr. Mtewele's submission, and as prayed, we hereby expunge the evidence of PW4 from the record. Next is a complaint that exhibit P5 was admitted in evidence contrary to sections 246 (2), 247 and 289 (1) and (2) of the CPA. Our revisitation to the record of appeal has truly showed that, unlike exhibits

PI, P2, P3, P4 and P7, exhibit P5 was not shown and then listed in a physical exhibit list during committal proceedings on 8/6/2022. However, on our part, we have noted at pages 9 to 12 of the record of appeal, that, though true that exhibit P5 was not part of the committal proceedings, it was well covered by the notice to tender the Ballistic report as an additional exhibit, as it was well attached to the notice. Therefore, we are unable to agree with Mr. Mtewele's submission on the complaint since what the prosecution did squarely fully complied with section 289 (1) and (2) of the CPA. For that matter, we will not expunge exhibit P5 as prayed. See-Ester Jofrey Lyimo v. Republic, (supra). With regards to the second and third grounds of appeal, we hastily respectfully agree with Ms. Mlenza's suggestion to us that, the trial court's ruling delivered on 10.6.2022 had justifiably declined the attempt to introduce an unqualified witness and substance due to the deficiencies raised by the defence. And it rightly found that exhibit P7 was a competent document for admission. Therefore, we will not disturb the trial court's ruling in respect of the first notice issued on 9/6/2022. We equally agree with both counsel that having declined to entertain the prosecution prayer to summon PW6 under the first notice, the trial court

ought not to have summoned him under the second notice because it was already functus officio . It is trite law that, when a judge or magistrate has completed his/her legal role or duty, he no longer remains with any legal authority to act in that capacity on the same matter. See -James Kabalo Mapalala v. British Broadcasting Corporation, (Civil Appeal 43 of 2001) [2002] TZCA 11 (11 November 2002) and Tanzania Telecommunications Co. Ltd & Others v. Tri Telecommunications Tanzania Ltd, (Civil Revision 62 of 2006) [2006] TZCA 83 (20 July 2006). Therefore, as the trial High Court was functus officio , with all due respect to Ms. Mlenza, we find PW6's testimony was illegally received, and the same is hereby expunged from the record. Likewise, we expunge exhibit P10 (a) and (b) which were tendered by PW1 under the impugned notice. Having expunged the evidence adduced by PW3, PW4, PW5 and PW6 and exhibits P10 (a) and (b) above, we pause to evaluate if that has adverse cumulative effect to the remaining grounds of appeal. This is because, as we said at the outset, the learned trial Judge premised the conviction against the appellant on PW4's evidence as was

corroborated by other two pieces of evidence from PW1 and PW5. That means, we remained with the evidence of PW1 only. In view of the foregoing, we thus reviewed on PWl's evidence as hereunder: PW 1: "... We asked the deceased wife and sh e s a id sh e sa w th e b a n d its h avin g a gun. .. The deceased wife also s a id sh e id e n tifie d one o f th e accused. H is nam e is Kankono. We searched the scene and among the exhibits which we found was a cartridge.....we went and arrested Kankono.. A t th e sta tio n , M aro in te rro g a te d him a s p re lim in a ry. I mean orai interrogation. The accu sed a d m itte d to ow n a fire a rm know n a s A .K 4 7 a lso know n a s S M G .it was around on 2.7.2013.. .There were things in a white bag "Sandarusi" Inside there a piece o f doth , Kitenge, inside Kitenge there wa the firearm AK 47., Serial No. 1960/3N9524....XXD...The case h a d fo u r in v e stig a to rs O C C ID Bukom be w ho w as th e le a d in v e stig a to r, D /C PL Jo se p h a t D /C P L E ric w ho is m y se lf a n d D C D eu s...I am th e one w ho p ick e d th e cartrid g e ....H e

w as in te rro g a te d b y w ho I do n o t rem em ber it is long tim e since 2013....O ral interrogation I was there. H e w as in te rro g a te d b y O C C ID Jo h n K angu M aiuiu., .1 do not remember independent w itness....If there was another person who used the firearm the accused wouid have know (sic). We did not take the fingerprints... I w as n o ta n in v e stig a to r...." PWl's testimony above, have exercised our minds, particularly regarding his roles and credibility as a single witness whose evidence is on revaluation. It is clear to us that, PW1 did not lead the investigation at the scene and at the appellant's home where the oral confession is alleged to have been obtained. After all, the alleged confession is clear that, it based on possession of firearm and not murder of the deceased. His contradictory evidence regarding what exactly was his role in the interrogation defeats his reliability. Just as this Court found in the case of Magina Luhanga v. Republic (Criminal Appeal No. 467 of 2021) [2024] TZCA 1189 (4 December 2024), we equally find PW1 incredible and unreliable. He attached too much overreliance on PW3 whose evidence is no longer available. This also have direct consequences to the exhibits he tendered, that is, exhibits PI, P2, P3, P4, P5, P6 and P10 (a) and 10 (b). As such, and we hold that, his sole evidence cannot

warrant conviction against the appellant. In the case of Magina Luhanga v. Republic (supra) this Court held at page 20 that: "From the above excerpts, it is dear to us that, PW1 was incredibie and unreliable witness as she gave different versions o f her story which are irreconcilable, thus raising reasonable d o u b t" In view of the discussion above, we also find the evidence adduced by PW2 and exhibit P7 to have lacked the requisite nexus with the charged offence, hence, cannot be used against the appellant in the charged offence. Therefore, based on the discussion above, we are of the unfeigned view that, had the learned trial Judge properly scrutinized the credibility obtained to PW1 whom she believed, she would not have found him capable to corroborate the evidence of PW4 which has already been expunged from the record. In the circumstances, we are inclined to agree with Mr. Mtewele that, the appellant's conviction was based on insufficient evidence. We thus find merit in 1st, 2n d ,3rd and 7th grounds of appeal. As they suffice to dispose of the appeal, we will not therefore address the remaining three grounds of appeal.

In the end, we allow the appeal. The conviction of the appellant is hereby quashed, and the sentence imposed on him is hereby set aside. It is ordered that the appellant be set free forthwith unless he is otherwise lawfully held. DATED at DAR ES SALAAM this 18th day of December, 2024. R. J. KEREFU JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL The Judgment delivered this 18th day of December, 2024 in the presence of the Appellant in person connected via video facility from Butimba Prison and Mr. Benedicto Ruguge, learned State Attorney for the respondent/Republic from Mwanza IJC, is hereby certified as a true copy of the original. J. E. FOVO DEPUTY REGISTRAR COURT OF APPEAL