Juma Mohamed @ Budagala & Another vs Republic (Criminal Appeal No. 468 of 2021) [2024] TZCA 1238 (10 December 2024)
Judgment
IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: KEREFU. J.A.. MWAMPASHI. J. A. And FELESHI. J.A.^ CRIMINAL APPEAL NO. 468 OF 2021 JUMA MOHAMED @ BUDAGARA................................................ APPELLANT VERSUS THE REPUBLIC.......................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Maevekwa, J.^ dated the 30th day of April, 2021 in Criminal Sessions Case No. 59 of 2016 JUDGMENT OF THE COURT 29h Novembers. l( fh December, 2024 MWAMPASHI, J.A.: Before the High Court of Tanzania at Mwanza (the trial court) in Criminal Session Case No. 59 of 2016, Juma Mohamed @ Budagara, the appellant herein, together with one Fikiri Thomas who was acquitted and hence, not a party to this appeal, were jointly charged with two counts of murder contrary to section 196 of the Penal Code [Cap. 16 R.E. 2002; now R.E. 2022] (the Penal Code). It was the prosecution case that, on 28.08.2008, at around 00:00 hours, at Katete Village within the District of Chato in Geita Region, the appellant jointly and together with one Fikiri Thomas, murdered Segenera i
s/o Hunghuru and Sayi w/o Segenera (the deceased persons). The appellant and his colleague pleaded not guilty to the two counts. However, after a full trial, while his colleague was acquitted, as we have alluded to above, the appellant was found guilty as charged, duly convicted and condemned to suffer death by hanging. In its endeavour to prove the charges against the appellant, the prosecution featured and relied on four witnesses, two post mortem examination reports (Exhibits PI and P2), the sketch map (Exhibit P3), the appellant's extra judicial statement (Exhibit P4) and the cautioned statement (Exhibit P5). On his part, the appellant was a sole witness in his defence with no exhibit to tender. As it can be gleaned from the record of appeal, the material facts on which the prosecution case against the appellant and also the conviction by the trial court, was based, are not complicated. It is noteworthy that the fact that the deceased persons were brutally killed was not in dispute. The contest was on whether it was the appellant who was the perpetrator of the homicides in question. As on the deaths of the deceased persons and their cause, according to the two relevant postmortem examination reports which were admitted in evidence at the preliminary hearing without objection as Exhibits PI and P2, head injuries and hypovolemic shock caused by severe bleeding 2
were cited to be the cause. Apart from Exhibits PI and P2, there was evidence from Emmanuel Sengija (PW1), the then Kasilamafuka Ward Executive Officer, which is to the effect that, on the fateful night of 28.08.2008, at around 00:00 hours, he was among the villagers who responded to the alarm which was raised from the deceased persons' house. Upon getting there, he saw blood all over the place. There was blood outside as well as inside the house. When he entered in the house, he saw, the dead bodies of the deceased persons both with cut wounds on their heads laying on the bed. D.6444 D/C Emmanuel (PW2) of Geita Police Station testified that, in 2014 he was stationed in the anti-robbery department. On 28.03.2014, he was in the special task force squad that rushed to Mwenekezi Village where a murder, forming part of a series of murders by a serial killer that had been predominantly committed in the Region, had been reported. Upon getting there, the name of the appellant, as a prime suspect, was given by an informer. A search for the appellant ensued and when arrested, the appellant, confessed to have committed about 10 murders including the murder of the deceased persons at Katete Village. PW2 insisted that, the appellant took them to different places where he had committed the murders and when interrogated by him, the appellant confessed to have killed the deceased persons. 3
Another prosecution witness was one Mossi Sara @ Sasi (PW3), the Primary Court Magistrate who, by then, was stationed at Chato Primary Court. Her testimony was to the effect that, on 07.04.2014 the appellant was taken before her and that she recorded his extra judicial statement in which he confessed to have murdered the deceased persons. The said extra judicial statement was admitted in evidence as Exhibit P4. F.1251 D/C Majani of Misungwi Police Station was the last prosecution witness who testified as PW4. He told the trial court that by 04.04.2014 he was stationed at Chato Police Station and further that, while there, he recorded the cautioned statement of the appellant who was arrested by the anti-robbery task force on 28.03.2014. PW4 testified further that, in his cautioned statement, the appellant confessed to have committed the murders in question. Worth mentioning at this very stage, is the fact that the admission of the cautioned statement was objected to firstly, on the ground that it was recorded beyond the prescribed period of 4 hours and secondly, that it was not voluntarily made. Having conducted a trial within a trial, the trial court found that there was no evidence to prove that the statement was involuntarily made. As on the point of objection regarding the time bar, the trial court acknowledged that the statement was recorded beyond the prescribed period of time. However, relying on the decision of the Court in Chacha 4
Jeremiah Murimi and 3 Others v. Republic (Criminal Appeal No. 55 of 2015) [2019] TZCA 52 (4 April 2019;TanzUI) and section 169 of the Criminal Procedure Act [Cap. 20 R.E. 2019] (the CPA), the trial court found that due to the seriousness of the offence and the fact that the appellant had to be moved from one place to another, it was in the public interest that the cautioned statement has to be admitted in evidence. The appellant's cautioned statement was thus admitted in evidence as Exhibit P5. In his defence evidence, the appellant denied to have been involved in the murder of the deceased persons. He testified that he was arrested on 28.03.2014 at Mnekesi Village within the District of Chato for fighting in public with another person and taken to Lunzewe Police Station. That, on 30.03.2014, he was shifted to Chato Police Station where he was remanded till on 04.04.2014 at 10:00 hours when he was taken to the interrogation room wherein, he was forced to append his signature on the cautioned statement. After a full trial, the three assessors who sat with the trial High Court Judge, unanimously returned the verdict of guilty against both the appellant and his colleague, that is, Fikiri Thomas. However, in its deliberation, the trial court, found that the case against Fikiri Thomas was not proved to the hilt and as we have alluded to earlier, it acquitted him. 5
As for the appellant, the trial court, accepted the assessors' unanimous verdict of guilty against him. The appellant was thus, convicted as charged and was accordingly condemned to suffer death by hanging. We think it is not out of place if we point out, at this stage, that basically the appellant's conviction was grounded on the cautioned statement (Exhibit P5) which, the trial court found, was sufficiently corroborated by the appellant's oral confession to the crime before PW2. In support of the appeal against the conviction and sentence, three memoranda of appeal were lodged. The initial memorandum comprised of 7 grounds of appeal was lodged by the appellant on 19.07.2021 whereas the second one lodged by him on 07.09.2021 contained 6 grounds. Yet again, upon being assigned to represent the appellant, Mr. Constantine Mutalemwa, learned advocate, lodged a supplementary memorandum of appeal comprising 3 grounds of appeal. As intimated above, Mr. Mutalemwa represented the appellant when the appeal came before us for hearing. On the other side, Ms. Verediana Peter Mlenza, learned Senior State Attorney, represented the respondent Republic. Upon taking the floor, Mr. Mutalemwa abandoned the grounds in the second memorandum of appeal as well as all grounds in the initial memorandum of appeal except ground 2. Further, the first ground from 6
the supplementary memorandum of appeal was dropped and replaced by ground 2 from the initial memorandum of appeal. The appeal was thus, argued on the following three grounds of appeal:
- That, the cautioned statement, Exhibit P5, was improperly received in evidence and was wrongly relied upon to convict the appellant because it was recorded outside the statutory period o f time and was taken in the presence o f police officers who were not the recording officers, so the appellant was not a free agent
- That, the trial Judge erred in law for basing the appellant's conviction on the testimony o f PW2 to whom nether oral nor written confession was made by the appellant as required by the law.
- That, the trial court erred in law for convicting the appellant based on the oral testimonies o f PW2, PW3 and PW4, as such testimonies were not cogent evidence towards proving the case against the appellant beyond reasonable doubt Beginning with ground 1 of appeal, Mr. Mutalemwa faulted the trial court for basing the appellant's conviction on the cautioned statement (Exhibit P5). He argued that Exhibit P5 was irregularly admitted in evidence because it was recorded beyond the prescribed period of four hours contrary to section 50 (l)(a) of the CPA. Mr. Mutalemwa expounded that the appellant who was arrested on 28.03.2014 and taken to 7
Mwenzelu Police Station, his cautioned statement was not recorded until on 04.04.2014. When his attention was drawn to the fact that before admitting Exhibit P5, the trial court acknowledged the fact that the same was recorded beyond the prescribed period of time but, admitted it under section 169 of the CPA, Mr. Mutalemwa, faulted the trial court for, under the circumstances of the instant case, invoking the said provision of the law. He argued that the seriousness of the offence was not the only factor, the trial court ought to have considered. It was contended by him that, the trial court was enjoined to also consider that the appellant was likely to be prejudiced. He insisted that, the trial court did not properly balance the public and appellant's interest. Citing the decision of the Court in Majaliwa Ernest v. Republic (Criminal Appeal No. 465 of 2022) [2024] TZCA 313 (7 May 2024;TanzLII), Mr. Mutalemwa argued that the appellant's basic rights and freedom ought to have been considered before admitting Exhibit P5 under section 169 of the CPA. He thus urged us to expunge Exhibit P5 from the record. Turning to ground 2 of appeal, Mr. Mutalemwa referred us to page 35 of the record of appeal where PW2 is on record telling the trial court that he interrogated the appellant who confessed before him that he committed the two murders in question at Katete Village. He argued that, 8
considering that the appellant was arrested by the anti-robbery task force, the atmosphere was not conducive and the appellant was not a free agent. He added that, PW2's evidence does not fall under the ambit of section 3 of the Law of Evidence Act [Cap. 6 R.E 2022] (the Evidence Act). He thus, argued that the trial court wrongly held that the appellant confessed to the crime before PW2. To concretize his point, Mr. Mutalemwa referred us to our previous decisions in Alex Ndendya v. Republic (Criminal Appeal No. 207 of 2018) [2020] TZCA 202 (6 May 2020;TanzLII) and Tabu s/o Malebeti @ Medard and 2 Others v. Republic (Criminal Appeal No. 115 of 2020) [2023] TZCA 217945 (12 December 2023;TanzUI). As on ground 3 of the appeal, it was argued by Mr. Mutalemwa that, the evidence by PW2, PW3 and PW4 was not cogent and could not have been the basis for the appellant's conviction. He pointed out that, at page 36 of the record of appeal, PW2 testified that his statement was recorded, but the same is not part of the record. Mr. Mutalemwa did also argue that if it is true that the appellant confessed to have committed the offences under the circumstances which were not conducive then, PW2's evidence becomes unreliable and cannot support the appellant's conviction. He further contended that, since the extra judicial statement which was recorded by PW3 was accorded no evidential value by the trial 9
court then, even his evidence on what he heard from the appellant when recording that statement should also be accorded no evidential value. Mr. Mutalemwa finally, argued that the same applies to PW4 who recoded Exhibit P5 which, to him, was irregularly admitted in evidence for being recorded beyond the prescribed period of time. On the foregoing arguments, Mr. Mutalemwa concluded that the case against the appellant was not proved beyond reasonable doubt and he thus, implored us to allow the appeal by quashing the conviction and setting aside the sentence imposed on him. At the outset, Ms. Mlenza expressed her stance that she was not in support of the appeal. Regarding ground 1 of appeal, it was argued by her that, under the circumstances of the case, section 169 (1) of the CPA was properly invoked by the trial court in the admission of Exhibit P5 in evidence. She contended that, considering the seriousness of the offence and the fact that according to Exhibit P5, the appellant freely confessed to have committed the offences in question, the public interests prevailed over the appellant's individual interests. Responding to ground 2 of appeal, Ms. Mlenza submitted that the appellant's oral confession before PW2 was in order. She pointed out that, the appellant did not confess before the whole anti-robbery task force but he did so before PW2 when he was being interrogated by him. Ms. Mlenza 10
argued further that, the appellant's complaint that he was not a free agent when confessing to the crime before PW2, is an afterthought because such a complaint was not raised in cross-examination when PW2 was testifying. She thus, supported the trial court's reliance on the appellant's oral confession before PW2. Lastly, on ground 3 of the appeal, it was submitted by Ms. Mlenza that the evidence given by PW2, PW3 and PW4 was credible and reliable and the trial court did not err in relying on it. She concluded by arguing that, the case against the appellant was proved to the hilt and that the trial court properly based the appellant's conviction on Exhibit P5 and on the appellant's oral confession to the crime before PW2. That being the case, Ms. Mlenza prayed for the appeal to be dismissed. In rejoinder, Mr. Mutalemwa insisted that, section 169 (1) of the CPA was wrongly invoked by the trial court. He argued that the provision applies where for instance, investigation of the case takes longer time, which was not the case in the instant case where investigation began when the appellant was arrested on 28.03.2014 and ended on 30.03.2014. He also contended that the appellant's cautioned statement (Exhibit P5) was not recorded until on 04.04.2014. He wondered what was the public interest justifying the application of section 169 (1) of the CPA. Mr. Mutalemwa did also insist that the appellant was not a free agent li
when confessing before PW2 as the atmosphere was not conducive. He then, reiterated his prayer for the appeal to be allowed. As we have alluded to earlier, in principle, the appellant's conviction was based, firstly, on his cautioned statement (Exhibit P5) which though, recorded beyond the prescribed period of time, was admitted in evidence under section 169 (1) of the CPA and secondly, on his oral confession to the crime before PW2. In consideration of the above and having considered the arguments made for and against the appeal, we are of a settled view that, the determination of this appeal centres on two issues; one, whether section 169 (1) of the CPA was properly invoked by the trial court in the admission of Exhibit P5 in evidence and two, whether the appellant's oral confession to the crime before PW2 was in order and reliable. We also find it apposite to restate that, this being a first appeal, it is in form of a re-hearing. Our duty is to re-evaluate the entire evidence on record to find out whether the trial court correctly appreciated the facts of the case as presented before it. See- Juma Kilimo v. Republic (Criminal Appeal No. 70 of 2012) [2012] TZCA 51 (9 July 2012;TanzLII) and Oscar Lwela v. Republic (Criminal Appeal No. 49 of 2013) [2013] TZCA 210 (21 June 2013;TanzLII). The above settled principle of the law shall thus, guide us in the determination of the instant appeal. 12
Regarding the above first posed issue, as we have alluded to earlier, the admission of Exhibit P5 in evidence was objected to by the defence but, exercising her discretion under section 169 of the CPA, the trial court Judge admitted it mainly on the ground that it was for the interest of justice. That finding is what is being faulted in ground 1 of the appeal. For ease of reference and clarity, section 169 of the CPA, is reproduced in extenso as hereunder: "169,-(1) Where , in any proceedings in a court in respect o f an offence, objection is taken to the admission o f evidence on the ground that the evidence was obtained in contravention of, or in consequence o f a contravention of, or o f a failure to comply with a provision o f this Act or any other law, in relation to a person, the court shall, in its absolute discretion, not admit the evidence unless it is, on the balance o f probabilities, satisfied that the admission o f the evidence would specifically and substantially benefit the public interest without unduly prejudicing the rights and freedom o f any person. (2) The matters that a court may have regard to in deciding whether, in proceedings in respect o f any offence, it is satisfied as required by subsection (1) indude- 13
(a) the seriousness o f the offence in the course o f investigation o f which the provision was contravened, or was not complied with, the urgency and difficulty o f detecting the offender and the urgency or the need to preserve evidence o f the fact; (b) the nature and seriousness o f the contravention or failure; (c) the extent to which the evidence that was obtained in contravention or in consequence o f the contravention o f or in consequence o f the failure to comply with the provision o f any law, might have been lawfully obtained; and (d) all the circumstances o f the offence, including the circumstances in which the evidence was obtained. (3) The burden o f satisfying the court that evidence obtained in contravention of, in consequence o f the contravention of, or in consequence o f the failure to comply with a provision o f this Act should be admitted in proceedings lies on the party who seeks to have the evidence admitted. (4) The court shall, prior to exclusion o f any evidence in accordance with subsection (1), be satisfied that the failure or breach was significant 14
and substantial and that its exclusion is necessary for the fairness o f the proceedings. (5) Where the court excludes evidence in the basis o f this provision it shall explain the reason for such decision. (6) This section is in addition to, and not in derogation of, any other law or rule under which a court may refuse to admit evidence in proceedings". It is clear that the above provision of the law sets an exception to the general rule that, the evidence illegally obtained shall not be admitted in evidence. It provides that where it is satisfied that the admission of illegally obtained evidence would specifically and substantially benefit the public interest without unduly prejudicing the rights and freedom of an accused and in consideration of factors set under section 169 (2) of the CPA, the evidence illegally obtained may be admitted in evidence. It is, however, a settled position of the law that, admission of evidence under section 169 (1) of the CPA is absolutely in the discretion of the trial court, the discretion which has to be exercised judiciously. The import and scope of application of section 169 of the CPA was well discussed by the Court in the case of Nyerere Nyague v. Republic (Criminal Appeal No. 67 of 2010) [2012] TZCA 103 (21 May 2012;TanzLII), thus: 15
"It follows in our view therefore that the admission o f evidence obtained in the alleged contravention o f the CPA is in the absolute discretion o f the trial court and that before admitting or rejection such evidence, the parties must contest it, and the trial court must show that it took into account all the necessary matters into consideration and is satisfied that, if it admits it, it would be for the benefit o f public interest and the accused's rights and freedom are not unduly prejudiced. In other words, there must be a delicate balancing o f the interests o f the public and those o f the accused. It is not therefore correct to take that every apparent contravention o f the provisions o f the CPA automatically leads to the exclusion o f the evidence in question. The decision o f the trial court on such matters can only be faulted if it can be shown, that the admission or rejection o f such evidence was objected to and that it did not properly exercise its judicial discretion, or at all, in rejecting or admitting it". Furthermore, in the case of Mbuzi Lushona @ Mwangaiki and 2 Others v. Republic (Criminal Appeal No. 159 of 2022) [2024] TZCA 964 (4 October 2024;TanzLII), the Court observed that: "In fit circumstances, the court has been applying section 169 o f the CPA to rescue the cautioned statements or other evidence o f such nature, 16
especially those recorded outside the prescribed period o f time. In Chacha Jeremiah Murimi & Others v. Republic (Criminal Appeal No.551/2015 [2019] TZCA 52 (4 April 2019), the court despite finding the cautioned statement recorded out o f time, it stated that the irregularity could not invalidate the cautioned statement considering the dictates o f section 169 o f the CPA. The Court considered the fact that the case attracted high public interest and its investigation was complicated. The Court also examined how the appellant was prejudiced by the failure to record the statement within the prescribed period o f 4 hours". We also wish to point out and emphasize that, as the Court stated in the above cited cases, in invoking section 169 (1) of the CPA, factors set under sub-section (2) of section 169 must be taken into consideration. The interests of the public and that of the accused person should be balanced. The circumstances of a particular case, seriousness of the offence and complications in the investigation of the case are among the factors that have to be taken into account. Guided by the above, and looking at the circumstances of the case at hand, we have dispassionately considered the appellant's complaint that seeks to fault the trial court's exercise of its discretion under section 17
169 (1) of the CPA, in admitting Exhibit P5. We find that the exercise of the discretion by the trial court in the instant matter cannot be faulted. In admitting Exhibit P5 in evidence, to a greater extent, the trial court considered the factors listed under section 169 (2) of the CPA. As testified by PW2, the murders of the deceased persons were among the series of murders by serial killers who had been slashing people to death using bush knives. Thus, the case was not only serious but also of high public interest. It is also in evidence that, while the murders in question were committed in 2008, it took about 6 years till in 2014 when the appellant was arrested. Undoubtedly, there being no eye witness, it was difficulty to detect the murderer. It thus, goes without saying that, the investigation of the case was complicated. Furthermore, the evidence shows that, after being arrested on 28.03.2014, the appellant allegedly confessed to have committed many other murders and he had to take the police officers to many crime scenes. The appellant was thus involved in the investigations of many other cases till on 03.04.2014 when he was taken to Chato Police Station before his cautioned statement (Exhibit P5) was recorded on 04.04.2014. Therefore, there was a delay of not more than 24 hours. Under these circumstances, the delay of just 24 hours in recording the cautioned statement cannot be said to be serious or that it prejudiced the appellant. 18
We also note that, in the case of Chacha Jeremiah Murimi and 3 Others (supra), the application of section 169 (1) of the CPA was justified by looking not only at the high public interest and complications in the investigation but also at the information contained in the cautioned statements in question. Mindful of that, and being the first appellate court, we have looked at the cautioned statement in question (Exhibit P5) and observed that from the information contained therein, the trial court properly exercised its discretion under section 169 (1) of the CPA in admitting in evidence Exhibit P5 despite the fact that it had been recorded outside the prescribed period of 4 hours. From the above discussion and observations, ground 1 of appeal fails. Under the circumstances of this case, Exhibit P5 was properly admitted in evidence under section 169 (1) of the CPA and the trial court did not err in relying on it. Turning to the second issue which arise from ground 2 of appeal, that is, whether the appellant's oral confession to the crime before PW2 was in order and reliable, we premise our deliberation of that issue by restating that, in terms of section 3 (1) (a) of the Evidence Act, a confession to a crime may be oral, written, by conduct and or a combination of all or some of the above. Further, an oral confession made before or in the presence of a reliable witness, be they civilian or not, may 19
be sufficient to ground a conviction provided the maker was a free agent when he said the words imputed to him. See- The Director of Public Prosecutions v. Nuru Mohamed Gulamrasul [1998] T.L. R. 82, Posolo Wilson @ Mwalyego v. Republic (Criminal Appeal No. 613 of 2015) [2018] TZCA 635 (20 February 2018;TanzLII) and Patrick Sanga v. Republic, Criminal Appeal No. 42 of 2007 (unreported). In the instant case, the fact that the appellant, by word, told PW2 that, he was involved in the deceased persons' deaths appear to be not in dispute. At pages 35 and 36 of the record of appeal, PW2 is on record testifying that: "We were informed that there was a suspect, his name was Juma Mohamed Budagaia (appellant). We searched him at the village, we saw him on the way, he was quarrelling with someone else. We called by his name he reacted. He was involved in killing people by using bush-knives. Then we headed to Lunzewe Village. The suspect was directing us where he committed such crimes. The accused named his fellow one Faustine. He confessed to having committed the said murder. He said he killed one Sengenera and his wife, He said that the murder was done at Katete Village. 20
I arrested one suspect The one wearing a hat. Thereafter, he accompanied me through several villages and we returned to Chato. Juma Mohamed mentioned many murder cases, then we went around. He has more than 10 cases. He killed Sengenera and his wife. He used to cut people on their neck and did not take any parties o f their bodies". In cross- examination by the defence counsel, PW2 stated that: "/ arrested him on 28/03/2014,1 brought him to Mwenzelu Police Station from there we moved around, I was investigating the case until 30/03/2014.... I interrogated him (1st accused-appellant) and he confessed". [Emphasis added] The only issue in dispute is whether, when stating that he killed the deceased persons, the appellant was a free agent. It was the argument by Mr. Mutalemwa that since the appellant was arrested by the anti robbery task force, the atmosphere was not conducive for him to be a free agent. On the other hand, Ms. Mlenza insisted that the appellant was a free agent because he did not confess to the crime before the anti robbery task force but before PW2. On our part, having revisited the evidence given by PW2, we are in agreement with the trial court that, under the circumstances of this case, where though, the evidence show 21
that the task force was involved when the appellant was being arrested, there is no evidence that he confessed in the presence of the task force. The evidence shows that, the oral confession to the crime was made before PW2. There is no semblance of evidence suggesting that the appellant was forced, intimidated, threatened or induced when the words imputed to him were uttered by him. Further, as also argued by Ms. Mlenza, the appellant did not indicate, in cross- examination of PW2, that he was forced in any way to confess to the crime. We thus, find that the oral confession to the crime by the appellant before PW2 was not obtained by torture, threats, promise or inducement. The appellant was a free agent when making the oral confession and the trial court properly found so and the reliance on it cannot be faulted. Ground 2 of the appeal is thus, also dismissed for being without merit. As on ground 3 of appeal where it is being complained that the trial court erred in basing the conviction on the oral testimonies of PW2, PW3 and PW4, we, with due respect, find that there is no basis for such a complaint. The appellant's conviction was not based on the oral testimonies of the said three witnesses. As we have amply stated throughout the judgment, the appellant's conviction was based on the appellant's cautioned statement (Exhibit P5) and his oral confession to the crime before PW2. Ground 3 is thus, dismissed for being misconceived. 22
From the totality of what we have endeavoured to discuss above, we are satisfied that the case against the appellant was proved to the hilt. The appeal is thus, found devoid of merit and it is hereby dismissed in its entirety. DATED at MWANZA this 10th 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 10th day of December, 2024 in the presence of Mr. Galati Mwantembe holding brief for Mr. Constantine Mutalemwa, learned counsel for the Appellant and Mr. Deogratius R. Rumanyika and Martha Mtiti, both learned State Attorneys for the Respondent/Republic, is hereby certified as a true copy of the original. 23