Mussa Daniel @ Mwita @ Mariba @ Steve Matongo and Another vs Republic (Criminal Appeal No. 169 of 2021) [2024] TZCA 1292 (18 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCORUM: KEREFU. 3.A.. MWAMPASHI. 3.A. And FELESHI, J J U CRIMINAL APPEAL NO. 169 OF 2021 MUSSA DANIEL @ MWITA @ MARI BA @ STEVE MATONGO.-.l5 7 APPELLANT MACHENES SEBEKI MNIKO @GHATI BURURE .................... 2 nd APPELLANT VERSUS THE REPUBLIC ................... . ............................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mwanza) (Ilqanqa^L) dated the 16th day of November, 2020 in Criminal Sessions Case No. 144 of 2018 JUDGMENT OF THE COURT 25th November & 18th December, 2024 FELESHI. J.A.: The appellants herein above, Mussa Daniel @ Mwita @Mariba @ Steve Matongo and Machenes Sebeki Mniko @Ghati Burure (1s t and 2n d appellants, respectively), were convicted and condemned to death sentence by the High Court of Tanzania, Mwanza Registry, (the trial court), sitting at Musoma, in connection with the unnatural deaths of Breckelman s/o Erick (a foreigner tourist) and Renatus s/o Robert (Ikoma Tented Camp Manager), the 1s t and 2n d deceased, respectively.

The precis of the case giving rise to the instant appeal deduced from the record of appeal provide that: the deceased persons were shot dead on 20/6/2012 at 21:45 hrs at Ikoma Tented Bush Camp in Rubanda Village within Serengeti District in Mara Region by four assailants who were armed with SMG and machetes. According to Athuman Iddi Athuman (PW1), a security guard at Ikoma Tented Bush Camp, after gunning down the deceased persons, the assailants parted away with assortment of tourists' personal belongings. Upon receiving the crime's report, SP Paul Ngonyani (PW2) and other police officers arrived at the scene of crime at 23:30 hrs and the investigation ensued. Two sketch plans were drawn at the scene, where also, PW1 picked four cartridges he packed in the envelope. The bodies of the deceased persons were also picked for postmortem examination. The autopsy reports revealed that, the deaths were due to " acute biood loss due to bullet wound injuries"and Interna! bleeding/hemorrhagic shock caused by a sharp object" respectively. The sketch plans and autopsy reports were admitted in evidence as exhibits PI, P2, P3 and P4 respectively. PW1 also tendered the envelop and the four cartridges which were admitted evidence as exhibits P5 and P6 respectively. The further investigation led to the arrest and arraignment of the appellants and

four other accused persons, namely, Machage Marwa @ Paul, Wegesa Machenes @ Sebeki, Nyansika Muhere Magahu @ Robert Muhere @ Dogo Nyansika and Machumbe Nyakobenga @ Mochandemela, were arraigned and charged with two counts of murder contrary to sections 196 and 197 of the Penal Code, Chapter 16. It is, however, notable that, shortly before the preliminary hearing on 5/12/2018, Machage Marwa @ Paul and Wegesa Machenes @ Sebeki were discharged under section 91(1) of the Criminal Procedure Act, Chapter 20 (the CPA). On their plea of not guilty by all accused persons, the prosecution called 16 witnesses and tendered 60 exhibits, both physical and documentary exhibits to establish its case. On their part, the appellants and the other two co-accused fended themselves and tendered a total of 3 exhibits. It was the prosecution case that, on 25/06/2012, the 1s t appellant was arrested by police officers including No.G.2737 D/C John (PW6). PW6 testified that, they found him in possession of foreign currencies (Canadian Dollars, Euro and USD), phones, bracelet and wallet, all linked with the murder and robbery episodes. All were seized, recorded in the seizure certificate and were admitted in evidence as exhibits P37 to P46. That, thereafter, No. E.2636 D/CPL Deusdedit (PW7) recorded the first

appellant's cautioned statement in which he mentioned his accomplices including the 2n d appellant. On 27/6/2012 at about 19:00 hrs., he took PW2, PW6 and S5P John Ndibalema Lwamlema (PW5) to the 2n d appellant's home where they seized other items suspected to have been robbed from the scene of crime and the instrumentalities of crime. PW5 testified that whilst at the 2n d appellant's home, aided by his wife one Wegesa and Steven Sebeki, his brother, they seized laptops, phone, cameras, memory cards, handbags, torches, earrings, afro gel hair oil, pen's case, shoes, lotions, pens, brush, bags, two firearms, one magazine and six bullets. He tendered them and were admitted in evidence as exhibits P8 to P36. Specifically, SMGs No. 10989 as exhibit P33 and No. IL4398L exhibit P34, one magazine (Exhibit P35) and six bullets (Exhibit P36) respectively. Further No.F.1819 D/CPL Manzi (PW4) and No. F.3622 D/CPL Emmanuel (PW14) testified and tendered in evidence, under section 34 B (2) (e) of the Evidence Act, Chapter 6 (the Evidence Act), the statements they recorded from Steven Sebeki who was reported dead (exhibit P53) and exhibit P58 from Michael Sulzer (a Germany tourist whose personal belongings were robbed at the scene of crime). The two could not be procured to testify at the trial. Steven Sebeki had witnessed

recovery of exhibits P8 to P36 from the home of the 2n d appellant. On his part, Michael Sulzer had stated how he identified some of his stolen items which were recovered by the police investigation including: laptop (Exhibit P8), Olympus Camera (Exhibit P14), memory cards (Exhibit P16), chargers (Exhibit P17), hand wallet (Exhibit P18), shoes (Exhibit P27) and three pens (Exhibit P30). There was also evidence adduced by Jamhuri Hamisi Makongoro (PW13), a Bweri Ward Executive Officer (justice of the peace) who recorded and tendered the Extra Judicial Statement of the 2n d appellant (Exhibit P50) and Insp Juma Isike (PW15) who took exhibits P5, P6, P33, P34, P35 and P36 they seized from the 2n d appellant's home to the ballistic expert for examination. According to PW15, upon conclusion of the ballistic examination, the report and exhibits were handed back to him. He tendered the ballistic report which was admitted in evidence as exhibit P59. Exhibit P59 established that exhibit P6 were fired from exhibits 34. The prosecution also called on No. D.6298 D/SSGT Rabiel (PW 16) who recorded and tendered the 2n d appellant's cautioned statement (Exhibit P60) in which he confessed to have participated in plotting and commission of the charged offence.

On being found with a case to answer, the appellants and their two co-accused persons chose to defend themselves on oath and each said would tender one exhibit in defence. In his turn, the 1s t appellant (DW1) denied having committed the offence and knowing the other accused persons including the 2n d appellant. He stated that he was charged in another case in which he was acquitted. He complained of being tortured and that it was out of that torture he decided to record the statement (Exhibit P47) to save his life. That, he was injured from the torture and was taken to the hospital where a PF3 was availed (Exhibit Dl) and the information in the said Criminal Case No, 31 of 2016 was tendered and admitted as Exhibit D2. On his part, the 2n d appellant (DW2) also denied having any involvement in the charged offence. He testified that, he was arrested in Kenya on 10/7/2012 where he lived since 2009 after escaping from prison where he was jailed in a Criminal Case No. 330 of 2009. He also stated how he was tortured and given papers to sign. To prove torture, he tendered his PF3 which was admitted as Exhibit DW3. The appellants' co-accused persons also testified in defence as D3 and DW4 respectively, and strongly refuted any involvement in the charged offence. DW3 also alleged torture, and his PF.3 was admitted in evidence

as Exhibit D4 and he called Anastazia Philip (DW5) whose evidence was to the effect that, from 22:00 hrs. on 20/6/2012, to the morning on 21/6/2012 DW3 was at home sleeping. Having heard both sides, the learned trial Judge, unlike the three assessors who had unanimously turned the verdict of guilty against all four accused persons, was satisfied that the case was only proved against the appellants herein. Hence, the other two accused persons were acquitted. The High Court thus convicted and sentenced the appellants to death by hanging. Aggrieved, the appellants preferred this appeal under a joint memorandum of appeal, comprised of 5 grounds and then a supplementary memorandum of appeal comprised of 3 grounds, filed on 28/4/2021 and 8/5/2024 respectively, while a further supplementary memorandum of appeal comprised of 5 grounds was filed on 19/11/2024 for the 1s t appellant only. However, some grounds were abandoned and finally their complaints were confined to six grounds of appeal: one, that, the trial court erred in law and fact to rely on the doctrine of recent possession of properties whose identification ,ownership and admission in evidence contravened section 34B (2) of the Evidence Act; two, that, the chain of custody and seizure of

prosecution exhibits were not established; three, that, the trial court erred in law and in fact in not considering the appellants' defence of alibi; fourth, that, the appellants were the victim of illegal and irregular process of collection of evidence, conduction of the trial and weighing out the evidence which was not recounted and resolved by the trial court; fifth, that, conviction was wrongly based on the extra-judicial confession of the appellants which was illegally obtained and improperly admitted in evidence; and sixth, that, the case against the appellants was not proved beyond reasonable doubt. When the appeal was placed before us for hearing, the appellants were represented by Messrs. Cosmas Kituthuru and Masoud Mwanaupanga, both learned advocates, respectively, whereas the respondent, Republic, was represented by Ms. Dorcas Akyoo, learned Principal State Attorney assisted by M r. Frank Nchanila, learned Senior State Attorney. At the outset, it was M r. Kituthuru who submitted the first ground to the effect that, the trial court erred in relying on the doctrine of recent possession in the absence of a witness establishing ownership of the alleged stolen properties, and that, exhibits P53 and P58 were admitted in contravention of the law.

M r. Kituthuru argued that the purported statements of one Michael Suza, exhibit P58 and Steven Sebeki exhibit P53, were received contrary to section 34B (2) (e) of the Evidence Act. Referring us to pages 319 and 327 of the record of appeal and relying on our decision in Magige Marwa Mwita and 2 Others v. Republic, (Criminal Appeal No. 621 of 2021) [2024] TZCA 994 (28 October 2024) (Tanzlii), M r. Kituthuru forcefully argued that, the notice was supposed to be issued within 10 days as the law requires. However, in this matter, the notice was served and received on the same day. He further argued that, although the record indicates that the defence counsel at the trial Court had no objection, he urged the Court to find that the said notice was issued contrary to the requirement of the law. On that account, M r. Kituthuru vehemently urged this Court to expunge out the exhibits. Then, that, having the said exhibits P53 and P58 expunged out, there will be no remaining evidence establishing the ownership of the alleged stolen properties, hence rendering the doctrine of recent possession non- applicable. Mr. Kituthuru went on to submit that, even if this Court finds the properties' ownership was proved, yet there was no evidence to prove that the same were found and obtained from the 1s t appellant. In his

view, the properties alleged to be found with the 1s t appellant were obtained contrary to the law and there was no proof that he was indeed found with them. While referring us to pages 107, 206, and 209 of the record of appeal, he contended that PW6 and PW8 who were involved in arresting the 1s t appellant and who seized the said properties never called any independent witness in accordance with section 38 (3) of the CPA. According to him, failure to call one Joseph Chacha allegedly an independent witness flouted the law. To reinforce his argument on the need for an independent witness, he cited the case of Omary Lugiko Ndaki v. The Republic, Criminal Appeal No. 544 of 2015 (unreported). He further contended that, some properties which included foreign currencies were admitted contrary to law since the Police General Order (PGO) 229 was not followed. According to him, the currencies were supposed to be tendered in a valuable property envelope or a cash box or safe. But in this case, PW6 tendered them from his hands contrary to the PGO. On the second ground of appeal, which was the complaint that, the trial court erred in convicting the appellants based on the properties whose chain of custody was broken, M r. Kituthuru argued that neither documentary nor an oral account of maintaining chain of custody was

established by the prosecution. Referring us to pages 160 and 161 of the record of appeal, he contended that, there was one SGT Mohamed, an exhibits keeper who was not called to testify how he maintained the exhibits from the time they were retrieved from the 1s t appellant until when one Michael Sulzer identified them. He reiterated that properties like the currencies were not tendered in the valuable property envelope. Mr. Kituthuru added that, properties like guns were transported to Dar es Salaam for ballistic examination after seven months from when they were retrieved but no evidence on how they were kept and handled before. He cited the case of Miraji Malumbo v. The Director of Public Prosecutions, Zanzibar, (Criminal Appeal 229 of 2008) [2008] TZCA 47 (24 November 2008), to underscore the importance of proving the chain of custody. Submitting on the third and sixth grounds on failure to consider DWl's alibi and that the prosecution did not prove its case against the appellants to the hilt, M r. Kituthuru argued that, though the trial court, in its judgment found common intention between the appellants established, there was no evidence to that effect. He contended that, after admitting in evidence the High Court information on Criminal Sessions Case No.31 of 2016 as it is exposed at page 608 of the record

of appeal, where DW1 was charged together with other 4 accused person and got acquitted, it was clear that DW1 had disassociated himself from the charged offence and that evidence was not contradicted. Moreover, as DW2 had raised defence of alibi ; that he was in Kenya after escaping from prison, it was thus improper to hold that the two appellants were together and had formed common intention. In view of his foregoing submission, M r. Kituthuru concluded that, the case against the 1s t appellant was not proved to the hilt. He, therefore, implored this Cout to allow the appeal, quash the conviction, set aside the sentence and set the 1s t appellant free. On his part, Mr. Mwanaupanga, concurred with Mr. Kituthuru and associated himself with his submission regarding the first ground. However, he added that, there was no sufficient evidence to establish that, the 2n d appellant is the one who took the exhibits including the guns to his home. He also contended that, where the said items were found was not proved to be his home. He argued that, even if the exhibits were not listed during the committal, the prosecution was duty bound establish by evidence that truly they were obtained from the 2n d appellant's home. To him, exhibit P53 having been admitted contrary to the law, there was nothing left to establish that there was any exhibit

recovered from the 2n d appellant's home, hence, the inapplicability of the doctrine of recent possession. He further argued that, there was evidence about one Wegesa, the 2n d appellant's wife who allegedly aided the seizure of the exhibits. That, it is unfortunate that that important witness was not called or stated if she refused to appear to give evidence. Besides, he added, the evidence was full of doubt as it appears at page 164 where PW2 stated that Steven Sebeki and Wegesa discussed before showing where the guns were hidden. To him, PW2 and PW5 had ample time and had no emergency to prevent them from complying to all procedures laid for arrest, search and seizure under sections 38, 39 and 40 of the CPA considering that, evidence was led on how the 1s t appellant after mentioning the 2n d appellant had promised to take them to his home at night. He said, failure to comply with the law and to call an independent witness are serious doubts which remained uncleared by the prosecution and which should be resolved in favour of the 2n d appellant. To buttress his argument, he cited the case of Shabani Ramadhani Abdala @ Kindamba v. Republic, (Criminal Appeal No.120 of 2021) [2023] TZCA 17352 (22 June 2023) and beseeched the Court to expunge the emergency search order (Exhibit P7) from the record.

Expounding on the 4th ground of appeal, the learned advocate contented that, exhibits P8 to P36 which were tendered by PW5 contravened sections 246 (2) and 289 (1) and (2) of the CPA. He stated that, the items listed as the properties seized from the 2n d appellant's home, including the guns and bullets which formed part of exhibits P8 to P36 were not among the physical exhibits listed during committal proceedings as per section 246 (2) of the CPA. To him, for those exhibits to be tendered and admitted in evidence, the prosecution was supposed to issue notice and serve it to the appellants according to section 289 (1) and (2) of the CPA. He cited the cases of Shabani Said Kindamba v. Republic (Criminal Appeal No. 390 of 2019) [2021] TZCA 221 (2 June 2021) and Mussa Ramadhani Magae v. Republic (Criminal Appeal No.545 of 2021) [2023] TZCA 181) and then beseeched the Court to expunge exhibits P8 to P36 from the record. As to the fifth ground, Mr. Mwanaupanga submitted that, exhibit P50 (2n d appellant's Extrajudicial Statement) ought not to have been admitted after being objected to on two grounds including the complaint that, it was involuntarily obtained. The court was obliged to conduct a trial within trial to determine whether it was given voluntarily as per the holding of this Court in the case of Shigela Masai @ Mhoja

Lukubanija v. Republic, Criminal Appeal No.273 of 2021 (2024) TZCA 715 (13 August, 2024). He contended that, even if the 2n d appellant's conviction didn't rely on exhibit P50, as long as the same is still part of the court record, the Court is implored to expunge it from the record. In the end, the counsel stressed that, for the failure by the prosecution to prove its case beyond reasonable doubt against the 2n d appellant, per the sixth ground of appeal, he urged the Court to allow the appeal, quash the conviction, set aside the sentence, and then order immediate release of the 2n d appellant from custody. In reply, Ms, Akyoo, opposed the appeal. As to the fourth ground on the exhibits P8 to 36 not being listed nor mentioned during committal proceedings, she argued that the essence of section 246 (2) of the CPA is to make an accused informed of what will happen at the trial. In this case, she said, as all the items found in possession of the appellants which were admitted in evidence during trial were mentioned in the statements of witnesses read and explained to the appellants and then listed during committal proceedings, it was then not necessary to require the statements of witnesses who tendered the exhibits during trial to be subjected to committal proceedings. She relied on the case of Edwin Cheleh Swen v. Republic, (Criminal Appeal No. 649 of 2021) [2024]

TZCA 272 (17 April 2024) and implored the Court to dismiss the appellants complaint on violation of section 246(2) of the CPA. As to the submission on the first ground, the learned Principal State Attorney argued that, section 34 B (2) (e) of the Evidence Act was not contravened since the defence counsel did not object against the admission of exhibits P53 and P58. That, section 34 B (2) (e) of the Evidence Act requires a notice to be issued in writing within 10 days to see if it is objected. She said, in the instant case, the notice was issued on 26/10/2022 and the statements, exhibits P53 and P58, were tendered and admitted on 27/10/2022 without objection. She thus distinguished this case with Magige's case (supra) where it was not even known if the notice was served, while in this case the serving date is on the record and the defence counsel did not raise any objection because they were already served with the notice together with the respective statements. Besides, it was her further contention that, the requirement to serve notice within ten days permits the statutory requirement to be met within that range of time provided it is not beyond ten days. It was Ms Akyoo's emphasis that, as the impugned statements, exhibits P53 and P58, were read out during committal proceedings, their

contents were therefore not new, and their subsequent admission by the trial court was proper under the law as the notice to introduce the tendering witness under section 34 B (2) (e) of the Evidence Act was issued and served. She also argued that there was a proper application of the doctrine of recent possession as the ingredients were all met more specially because, Michael Sulzer who had lodged his complaint about his stolen personal belongings turned up and identified the same. Regarding the argument that the emergency search order, exhibit P7, did not prove that the same items listed after robbery were those identified in exhibit P58, Ms. Akyoo argued that, the exhibits were recorded by their serial numbers that facilitated their identification by the owner. On the complaint that an independent witnesses were not called, she argued that, PW6 and PW8 were sufficient to prove the case because they were credible witnesses in terms of section 143 of the Evidence Act. Besides, there was no need to call those independent witnesses as even section 41 (c) and 42 (2) of the CPA do not mandatorily provide for that requirement in respect to emergency searches. As to the complaint that section 38 of the CPA was not adhered to, Ms. Akyoo contended that, the section is not applicable for searches

made under sections 41 and 42 of the CPA in which an independent witness is not the requirement. As to the complaint of non-following the PGO 229, Ms. Akyoo said, that is not a requirement in tendering the exhibits in court but is applicable in keeping the exhibits at police stations. On the complaint that the learned trial Judge erred to hold that the appellants had common intention to commit the charged offence, Ms. Akyoo argued that, PW2 and PW5 testified on how the 1st appellant mentioned the 2nd appellant as his accomplice and then led them to his home. Besides, the properties seized from them circumstantially proved that the duo had common intention in the commission of the offence. On his part, Mr. Nchanila, submitted on the second ground of appeal about the impugned chain of custody and argued that it is common knowledge that chain of custody can be established by either a documentary or oral account. In his view, PW2, PW5, PW6 and PW15 sufficiently orally accounted how exhibits P5, P6 and P8 to P36 were collected from the scene of crime and the homes of the 1s t and the 2n d respondents on 20/6/2012. That, all were handed over to SGT Mohamed, the police exhibit keeper where they were taken to the Ballistic Expert for examination and then returned to him. Therefore, M r.

Nchanila argued, as some of the exhibits had retained their identities by serial numbers including exhibits PI 1, P33 and P34 her thus beseeched the Court to find that the prosecution ably proved the chain of custody. In the alternative, he argued that even if it may be found that the chain of custody was broken, it is not always the case that the documents cannot be admitted. What is important is whether the exhibits are of the nature of being tampered with or easy to change hands. To that effect, he referred us to our decision in the case of Anania Clavery Betela v. Republic (Criminal Appeal No. 355 of 2017) [2020] TZCA 245 (22 May 2020). As to the complaint in the third ground of appeal that, the trial Court did not consider the defence of alibi, M r. Nchanila argued that, per the record of appeal at pages 681 and 682, the same was considered but rejected, which was correct. He thus implored the Court to reject all grouns of appeal and based on the cogency of the prosecution case, the appeal by both appellants be dismissed for lack of merits. In his rejoinder, M r. Kituthuru reiterated his earlier submissions with emphasis that, as held by this Court before, parties should not be allowed to conspire against the law on the requirement of statutory notice issued under under section 34 B (2) (e) of the Evidence Act. 19

On his part, M r. Mwanaupanga reiterated his prayer on the Court to expunge exhibits P8 to 36 and 53 and 58 from the record for contravening section 246 (2) of the CPA. We have fervently considered the parties' submissions and the record of appeal. However, as this is a first appeal, the Court has duty to re-valuate the entire evidence, and upon scrutiny, may arrive at its own conclusions of facts per the decision in Reuben Mhangwa & Another v. Republic, Criminal Appeal No. 99 of 2007 [2019] TZCA 341: [30 September, 2019. We will begin with complaints on procedural and evidential aspects. As regards to whether exhibits P8 to P36 complied with section 246 (2) of the CPA, the issue which falls under the first and fourth grounds of appeal, we have found that, the learned counsel for both parties in this appeal, are at one that, the impugned exhibits were not part of the committal proceedings. However, their rival submissions settled on effect of the noncompliance. Whereas, Messrs. Kituthuru and Mwanaupanga, vigorously implored the Court to expunge the impugned exhibit from the record, Ms. Akyoo on her side, firmly dismissed the prayer arguing that, the noncompliance did not have any legal effect to the appellants, because, the substance of the exhibits was incarnated by

witnesses whose statements were read out to them, the statements which, were then put in the list of witnesses intended to be relied by the prosecution at the trial. To her therefore, as the appellants were already made aware of the substance in the exhibits very much earlier before trial, it was not then necessary for the statement of tendering witnesses to have also been part of the committal proceedings. There is a string of our authorities on this aspect, which make it a settled legal position that, in the event the prosecution inadvertently makes such an omission, it is entitled to invoke section 289 (1), (2) of the CPA to cure the ailment by giving reasonable notice in writing to the accused or his advocate of the intention to produce the same during the trial. See, for instance, decisions in Itozya Amos @ John Teru v. Republic (Criminal Appeal No. 162 of 2021) [2024] TZCA 1181 (3 December 2024), Remina Omary Abdul v. Republic, (Criminal Appeal No. 189 of 2020) [2022] TZCA 118 (15 March 2022), Mussa Ramadhani Magae v. Republic, (Criminal Appeal 545 of 2021) [2023] TZCA 181 (11 April 2023) and Ntuluwambula 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, it is very unfortunate that, the remedial measure was not opted for by the prosecution, and Ms. Akyoo, was unable to legally justify to us on what exactly prevented the prosecution to invoke section 289 (1) and (2) of the CPA to cure the procedural and evidential deficiencies obtained in its case. To us, the interpretation she attempted to make on the provisions of section 246 (2) of the CPA was incorrect. We hold so because, for fair trial purposes, all material statements obtained and scrutinized under sections 10 (3), (3A), (3B), (3C), 245 (4) (5), (6) and (7) of the CPA and under other relevant laws, constitute committal proceedings record where the appellant is invited to know what they are all about against him. It is for that same purpose, soon after committal proceedings, during the pendency of trial, the accused person is, as of his right, entitled under section 249 (1) and (2) of the CPA and other related laws, to a copy of the record of committal proceedings without payment. So, there is no, any doubt whatsoever in our mind that, in the instant appeal, the failure to read and or produce the impugned exhibits during committal proceedings inevitably prejudiced the appellants, because those exhibits were later acted upon at the trial. As the remedy to the breach is none other than that suggested by the learned advocates, we accordingly expunge exhibits P8

to 36 from the record. See also Mashaka Juma @ Ntatula v. Republic (Criminal Appeal 140 of 2022) [2022] TZCA 506 (15 August 2022) and DPP v. Sheriff Mohamed @ Athuman and 6 Others, Criminal Appeal No. 74 of 2016 (unreported). The foregoing discussion takes us to the complaint by both counsel for the appellants that, exhibits P53, a statement of the 2n d appellant brother who allegedly eye-witnessed the recovery of exhibits P8-36 from the 2n d appellant's home, and P58, a statement by the complainant who turned up to identify his stolen/robbed properties, both contravened section 34 B (2) (e) of the Evidence Act. We have already made it clear as regards to the provision of section 34 B (2) (e) of the Evidence Act in Magige Marwa Mwita and 2 Others v. Republic, (supra). We said: "Our view o f the issue o f non-compliance with the dictates o f section 34B (2) (e) - (f) o f the Evidence Act is that Mr. Ibrahim's interpretation o f sub section (2) (e) o f that provision is, with respect, utterly mistaken. Without reproducing the whole provision ; the relevant part for the purpose o f resolving this issue provides; "(2) a written or electronic statement may only be admissible under this section: (e) if none of the parties, within ten days from the 23

service of the copy of the statement serves a notice on the party proposing or objecting to the statement being so tendered in evidence " Leave alone the fact that it is settled law that the conditions under section 34 (2) (a) - (f) must be compiled with cumulatively, the suggestion that a party couid be said to have raised no objection within just hours wouid iead to absurdity . Ten days are counted from the day o f service of the notice which was not estabiished in this casef and prudence requires that proceedings should have been adjourned or stayed to enabie the party served with the statement to read and appreciate its contents. A party should not be required to raise an objection under gun point, so to say, provided that he raises the objection, if any, not later than ten days from the date o f service o f the notice We noted, just as was rightly so submitted by the counsel for the appellants that, the notice to tender exhibits P53 and P58 was served to the appellants' advocate a day before trial, that is on 26/10/2022. The exhibits were tendered and admitted in evidence on 27/10/2022 without an objection from the defence counsels. To that effect, we take the same position that, there was no time for the defence to digest the contents of the notice and form an opinion whether to object or not. The 24

non-objection was in a rush, as it was found in the Magige Marwa's case (supra) which we condemned to be contrary to the law. We think, had Ms. Akyoo paid a keen attention to our holding in that case, to the effect that, "....andprudence requires that proceedings should have been adjourned or stayed to enable the party served with the statement to read and appreciate its contents../'she could not have arrived at her conclusion that, the case is distinguishable from Magige's case (supra) and that, where there is no objection the requirement to serve within ten days permits the statutory requirement to be met within that range of time provided even if it is within few hours after service. With all due respect to the learned Principal State Attorney, we dare to say, her interpretation to our holding was completely wrong. Had it been so, we should not have couched our sentence read "and prudence requires that proceedings should have been adjourned or stayed to enable the party served with the statement to read and appreciate its contents What we meant, is what we still stand for, that is, to ensure that, the adverse party in the trial is not prejudiced by the new evidential materials which were not put to his knowledge before during committal proceedings. The overriding objective there is thus to enable the defence to realize his right to fair hearing. As we are unable to agree

with Ms. Akyoo, therefore, as prayed for by both learned counsel for the appellants, we find that exhibits P53 and P58 were admitted in evidence contrary to the law and the same are hereby expunged from the record. As to whether the doctrine of recent possession was applicable, it is common knowledge that, the doctrine is developed through case laws which provides that, if a person is found in possession of recently stolen property and gives no explanation depending on the circumstances of the case, the court may legitimately infer that he is a thief, a breaker or a guilty receiver and the presumption can extend to any charge however penal. See- D.P.P v. Joachim Komba (1984) T.L.R. 214 and R. v. Bakari s/o Abdallah [1949] 16 EACA 84 where it was observed that: "Cases often arise which possession by an accused person o f property proved to have been stolen has been heid not only to support a presumption o f burglary or breaking and entering but o f murder as well, and if all circumstances of a case point to no other reasonable conclusion the presumption can extend to any charge however pe/7a//'[Emphasis added]

In Joseph Mkumbwa and Another v. R, Criminal Appeal No. 94 of 2007 [2017] TZCA 118 (23 June, 2011) the Court stated the conditions for applying the doctrine as follows: "For the doctrine to apply as a basis o f conviction , it must positively be proved, first that the property was found with the suspect, second that the property is positively the property o f the complainant, thirdly that the property was recently stolen from the complainant, and lastly that the stolen thing in possession o f the accused constitutes the subject o f the charge against the accused. It must be the one that was stolen /obtained during the commission of the offence charged." In view of the above and in connection with the matter at hand, it is our profound settled view that, after expunging P8-P36, on the one hand, and exhibits 53 and 58, on the other, the doctrine of recent possession is rendered inapplicable. This is due to absence of proof that: one, the appellants were found with stolen/robbed properties from the incident of murder of the deceased persons; and two, that, the properties belonged to a person who was at the scene of crime. As alluded to above, on our part, we have found that pages 583 to 586 of the record of appeal clearly show that, Michael Sulzer identified exhibits

P14, P16, P17, P18, P28 and P30 to be his robbed properties during the fateful day. Now, as the said exhibits have already been expunged from the record, there remains no proof on identification and ownership which render the doctrine of recent possession inapplicable. Likewise, Therefore, the 1s t and 4th grounds succeed and at the same time renders the complaint on the defence of alibi under the third ground of appeal consequentially ineffectual. Now, having found as above, and in abreast of this being the first appellate Court which is duty bound to re-apprise the evidence on record and find if a different conclusion would be reached at, the issue at hand for us to determine is, whether after expunging exhibits P8-P36 and exhibits P53 and P58 there remained sufficient evidence connecting the appellants with the charged offence. We hastily say, yes there is a ballistic report which was tendered by PW15, that is, exhibit 59. The evidence by PW15 at page 348 of the record of appeal clearly shows that, the forensic examination report established that, exhibit P6 which were collected from the scene of crime were discharged by exhibit 34 which was allegedly seized from the 2n d appellant's home. Now, with all due respect to Mr. Nchanila, the learned Senior State Attorney, despite that revelation by the Ballistic expert, we, however, hasten to 28

observe that, that evidence is ineffectual against both appellants because, the evidence in exhibit 34 is no longer part of the record. That means, exhibit 59 which also covers exhibit P6 in itself, cannot ground a conviction of any appellant and this renders also the 2n d ground of appeal ineffectual. Likewise, we respectfully hold that, the evidence in exhibits P37- P49, which are properties allegedly obtained from the 1s t appellant, being part of the stolen/robbed properties during the incident of murder, remained baseless, because, in essence it depended on exhibit P58 which we have already expunged from the record. M r. Mwanaupanga while submitting for the fifth ground of appeal, which was not countered by the respondent, also implored this Court to discard exhibit P50, the alleged extra judicial statement of the 2n d appellant, for it was objected to on the ground that it was involuntarily taken and subsequently admitted in evidence. To him, a trial within trial was supposed to be conducted. Indeed, it was opposed on that aspect, but the trial court did not take it into consideration when convicting the appellants. We understand that the same being disregarded means it was already admitted, but with no evidential value of which M r. 29

Mwanaupanga held the view that, the appropriate remedy now is to discard/expunge it out from the record. We understand that, where an objection is taken under the Evidence Act, the trial court, must conduct a trial within trial or an inquiry (in a subordinate court) to determine its admissibility. There, the trial court only determines whether the accused made the statement at all, or whether he made it voluntarily. See Nyerere Nyague v. Republic, (Criminal Appeal Case 67 of 2010) [2012] TZCA 103 (21 May 2012). For that reason, we are inclined to agree with Mr. Mwaupanga, and we accordingly expunge exhibit P50 from the record. In view of the above in unison, we are of considered view that, we can confidently hold that, there remains no evidence irresistibly proving the charged offence against the appellants beyond any reasonable doubt. That said, we hereby allow the sixth ground of appeal. We thus find merits in 1st, 4th , 5th and 6th grounds of appeal. In view of the above, based on the discussion above, we are of the settled mind that, had the learned trial Judge properly scrutinized the legal procedure invoked to introduce exhibits P8-36, P53 and P58 into the trial court record and the prerequisites of the doctrine of recent

possession, he would not have found the prosecution to have proved its case beyond any reasonable doubt to warrant the appellants conviction. Consequently, we hereby allow the appeal, quash the conviction and set aside the sentence that was imposed on the appellants. We further order for their immediate release from prison unless they are otherwise lawfully held for some other lawful cause. DATED at DAR ES SALAAM this 17th 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 1s t and 2n d Appellants in person connected via video facility from Butimba Prison and M r. Benedicto Ruguge, learned State Attorney for the respondent/Republic from Mwanza IJC, is hereby certr