Regina Mpelwa Ndalawa vs Republic (Criminal Appeal No. 196 of 2022) [2024] TZCA 1213 (6 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCORAM: KOROSSO, 3.A., KENTE. 3.A. And MGONYA. J.A.^ CRIMINAL APPEAL NO. 196 OF 2022 REGINA MPELWA NDALAWA .............. ..................................APPELLANT VERSUS THE REPUBLIC .................................................................. RESPONDENT (Appeal from the Decision of the Resident Magistrate's Court of Mwanza at Mwanza) (Tenqwa - SRM. Ext. Jurs.^ dated the 10th day of November, 2021 in Criminal Session Case No. 02 of 2019 JUDGMENT OF THE COURT 26th Nov. & 6th Dec. 2024 KENTE. 3.A.: The appellant Regina Mpelwa Ndalawa was charged with and convicted of murder, contrary to section 196 of the Penal Code and sentenced to death by the Resident Magistrate's Court of Mwanza (Hon. Tengwa SRM-Ext. Jurisdiction) in Criminal Session Case No. 2 of 2019. The particulars of offence alleged that, Simon Kaswahili Ikobe @ Simon Mwendesha (the deceased), was murdered by the appellant in collaboration with one Bahati Kaswahili Ikobe @ Mwendesha, who however died during the pendency of the trial whereupon, the charges against him were abated.

The background to this appeal may be set out briefly as follows. The late Kaswahili Ikobe @ Simon Mwendesha and the appellant were respectively, at the material time, a husband and wife. On the other hand, Kaswahili Ikobe @ Simon Mwendesha and Bahati Kaswahili Ikobe @ Mwendesha who is also deceased, were brothers. They were residents of Mwabaraturu Village, Kwimba District in Mwanza Region. The appellant and her husband had a history of marital misunderstands. The deceased suspected the appellant of having a romantic relationship with his brother the late Bahati Kaswahili Ikobe On 26th May, 2012 at about 8.00 a.m, the lifeless body of the late Simon Kaswahili Ikobe was found dumped in the paddy fields about 200 metres from home. Apart from the appellant's cautioned statement, the evidence implicating her was profiled by Mathias Gwasalaba (PW2) who was at the time, the chairman of the Mwabaraturu Village Council and was one of the people who rushed to the scene after he was informed that there was a dead body that was found in the paddyfields. He told the trial court that, he found the deceased already dead and that, a glance at the said body revealed cut wounds on the head and the arm inflicted by unidentified assailants. PW2 further testified that, from the scene, they followed a trail of droplets of blood on the ground which led to the appellant's home a fact which suggested that the deceased was

murdered at home after which the perpetrators carried and dumped him in the paddyfields which were about 200 metres away. PW2 recounted that, being suspicious of the appellant and the deceased's brother who were generally in bad blood with the deceased because of their (appellant's and the deceased's brother) illicit relationship suggesting that it might have been a precursor to the crime, he asked the appellant as to when the appellant had left home whereupon, she told him the deceased had left on 25th May, 2012 at 4.00 p.m. saying that he was going to watch out against people who could be grazing cattle in the farm which belonged to her. PW2 went on saying that when the appellant told him that the deceased had left home on the previous day, that answer seemed to make the already incensed relatives of her husband's hackles rise. They pounced on her and, according to PW2, if it was not for his quick intervention, they would have lynched her. PW2 narrated that, the relatives of the deceased believed that he was tragically murdered at his home but the appellant had surreptitiously decided to withhold that information not knowing that it could not be kept a secret any longer. With regard to the situation obtaining at the couple's home, PW2 is on the record as having told the trial court that, when they went into the couple's bedroom, they found two mattresses on the bed, one of

which was on top of the other and was still new. PW2 further narrated that, the old mattress at the bottom appeared drenched in human blood. This led to the increased suspicion of the appellant who was then apprehended by Police and subsequently, the apprehension of the deceased's brother the late Bahati Kaswahili Ikobe who was said to have been mentioned by the appellant. Meanwhile the body of the deceased was subjected to a postmortem examination whereupon, the cause of death was found to be severe haemorrhage due to head and brain injuries. In her defence, the appellant who was the sole witness to her case denied having murdered or taken part in the murdering of her husband. Her evidence was briefly that, on the night of 24th May, 2012 she was asleep together with her husband. She then heard some people who knocked on the door. When she woke up and opened the door, one of the intruders shone a torch in her face and struck her on the neck with what she described as a heavy object. As a result, she fell down and lost consciousness and when she came to herself on the next morning, she found her baby crying. When she looked around, she could not see her husband. According to the appellant, the entire house was in disarray and blood spattered on the bed, floor and wall. Seeing all this, she raised the

alarm to notify her neighbours of the ordeal of the last few hours. It was her further testimony that, however, in a quick turn of events, instead of coming to her rescue, her neighbours who rushed to her residence in response to the alarm which she had raised including PW2, quickly suspected her of being privy to the murder of her husband. She was subsequently arrested and whisked to the Police Station at Nyambiti and later on at Ngudu where, together with Bahati Kaswahili Ikobe, they were booked for the offence of murdering her husband. She denied to have ever made any confessional statement saying that she signed a document whose contents she did not know after the Police Officers at Ngudu beat her severely ignoring the fact that she was in the danger of a miscarriage as she was then six months pregnant. All in all, the appellant strongly denied killing her husband saying that she had no cause or reason to kill him. After consideration of the evidence before him, the learned trial Senior Resident Magistrate found that, the evidence against the appellant was mainly circumstancial arising from the testimony of PW2 and her own confessional statement. As to the testimony of PW2 and other witnesses whose evidence was materially to the same effect, the learned trial Senior Resident Magistrate relied on the fact that the deceased appeared to have been killed at his home which he shared

with the appellant after which the murderers carried his body and dumped it at the nearby paddyfields. In arriving at this conclusion of fact, the trial court relied on the unexpected presence of blood spatters and trails of blood drops from the appellant's home to the place where the body of the deceased was found. The gravamen of the trial court's decision was that, the only person who should and could have explained the circumstances leading to the appellant's murder was the appellant but taking into account the unsatisfactory explanation which she had offered, all the circumstances suggested that she had played a highly questionable facilitative role in the said murder. As regards the appellant's confessional statement, the trial court was satisfied that there was no danger in founding a conviction on it because the trial Magistrate was satisfied that the appellant's confession was true. In coming to that conclusion the learned trial Magistrate was convinced by the veracity of the appellant's confession because of a detailed narration of the events leading to the death of the deceased as set out in the said statement. Unhappy with the decision of the trial courts, the appellant launched the present appeal setting out five principal grounds of complaint one of which faults the trial court for recruiting and deploying new assessors after the case was re-assigned to Hon. Tengwa a Senior

Resident Magistrate (Ext. Juris.) who took over the trial from Hon. Karayemaha also a Senior Resident Magistrate with Extended Jurisdiction (as he then was) without according the appellant a hearing as to whether or not she had any objection to the participation of any of the newly recruited assessors in her trial. Before us the appellant was represented by Mr. Edwin Aron, learned advocate while Ms. Revina Tibilengwa, learned Principal State Attorney and Mr. Sileo Mazullah, learned State Attorney appeared for the respondent, Republic. At first, Mr. Aron sought to canvass each of the grounds of appeal raised by the appellant but when we drew his attention to the fact that after Hon. Tengwa took over the trial from Hon. Karayemaha who was said to have been transferred to another station before conclusion of the trial, the successor Magistrates sat with three new assessors who had not heard the evidence of the first six prosecution witnesses and that, thereafter the successor Magistrate went on to receive the evidence of the seventh witness one Makori Josephat Maro PW7 a Pathologist who carried out a postmortem examination, Mr. Aron changed tack and submitted that, what the successor trial Magistrate did was a serious procedural irregularity which had the effect of vitiating the trial. Referring to the now repealed section 265 of the Criminal Procedure Act,

Chapter 20 of the Revised Laws (the CPA) which at that time, required every trial before the High Court and by extension the Court of a Resident Magistrate in exercise of its extended jurisdiction, to be conducted with the aid of assessors, the learned counsel equated the change of assessors midway through the trial with conducting a trial without the aid of assessors in which case the trial court is deemed to be improperly constituted. We were accordingly urged to nullify the proceedings of the trial court, quash the appellant's conviction and set aside the capital sentence which was imposed on the appellant. Regarding the course to follow after nullifying the proceedings and quashing the appellant's conviction, Mr. Aron implored us not to order for a retrial as, according to him, there was no sufficient evidence for a realistic prospect of a conviction. In this regard, the learned advocate underscored the point that, to order for a retrial would result in the prosecution going back and seeking to fill the gaps in their evidence which was materially wanting. Elaborating on the shortcomings in the prosecution case, Mr. Aron gave an example of the fact that there was no DNA test on the deceased and the blood spatters at the appellant's home which could link her with the charged offence. As if that was not bad enough, Mr.

Aron added that, a child who allegedly witnessed the killing of his father by the appellant and her accomplice, was not called as a witness. Submitting in reply, Mr. Mazullah who addressed us on behalf of the respondent, endorsed almost everything the appellant's counsel had said including the submission that, an order for a retrial would not be in the interest of justice in this case. Moreover, the learned State Attorney expressed his grave misgivings on the appellant's cautioned statement on which the trial court appears to have placed much reliance in convicting the appellant. Relying on our decision in the case of Juma Omary v. Republic, Criminal Appeal No. 568 of 2020, Mr. Mazullah submitted that, the said statement was wrongly certified by the recording officer contrary to section 57 (3) of the CPA thereby throwing into question the authenticity of its truthfulness. We have carefully considered the appeal, the authorities cited and the concurrent arguments canvassed by the parties. The main issue raised in this appeal by counsel for the appellant which was gracefully acknowledged by the respondent is that, the trial Magistrate should not have sat with new assessors to hear the evidence of PW7 after he took over the trial from his predecessor. With respect, we think there is some justification in this complaint and, we will say just a little because the law on this point is settled as held in a myriad of our earlier decisions.

No doubt, the starting point in this case, as it had always been in all cases of the present nature, is section 265 of the CPA which used to provide that:- "Ali trials before the High Court shall be with the aid o f assessors the number o f whom shall be two or more as the court thinks fit" But since this was a case of change of assessors, sections 286 and 287 of the same Act which are relevant though now repealed, used to provide and we set them in extensor, thus: "S. 286 - I f in the course o f a trial with the aid o f assessors but at any time before they state their opinions any assessor is, for any sufficient cause, prevented from attending throughout the trial or absents himself and it is not practicable immediately to enforce his attendance, the trial shall proceed before the remaining assessors but if only they are not less than two in number; and where the trial so proceeds the remaining assessors shall be deemed in all respects to be properly constituted for the purpose o f the trial and shall have power to return a verdict accordingly whether unanimous or by majority." "S. 287 I f the trial is adjourned, the assessors shall be required to attend at the adjourned sitting and at

any subsequent sitting until the conclusion o f the trial." We had an occasion to consider the same pitfall in a somewhat similar case of Sabasaba Enos v. Republic, Criminal Appeal No. 135 of 2015 where we guided that: "The law as it stands does not envisage a complete change o f all assessors who were in attendance at the commencement o f the trial to the conclusion. At least, two assessors must be present throughout the trial. In this regard, when a trial is adjourned, section 287 of the Criminal Procedure Act directs that, the assessors shall be required to attend at the adjourned sitting and at any subsequent sitting until the conclusion o f the trial. The rationale of their continued presence throughout the trial is to enable them to hear the whole evidence which will enable them to make informed or rational opinions to assist the trial judge before giving his or herjudgment" Relying on the cases of Clarence Gikuli v. Reginum (1959) 21 EACA 3014 and Nyehese Cheru v. Republic [1988] T.L.R 140, we went on observing in Sabasaba Enos (supra), that:-

"a trial which has begun with the prescribed number o f assessors and continues with less than two o f them, such trial is unlawful." We have noted in the instant case that, initially, the trial of the appellant was conducted by Hon. Karayemaha a Senior Resident Magistrate (Ext. Juris) who sat with three assessors namely, Peter Maneno, Jesca Bando and Shumbana Yahya and heard the evidence of six prosecution witnesses. However, when Hon. Tengwa a Senior Resident Magistrate (Ext. Juris) took over the trial on 28th November, 2021, he sat with John Mayunga, Martha Makuru and Jamila Kitundu and went on receiving the evidence of PW7 before he realised that he had committed a grave procedural mistake and recalled the assessors who had sat with his predecessor. Thereafter, Hon. Tengwa went on hearing the evidence of the remaining witness including the defence witnesses. After closure of the parties' respective cases, the learned Senior Resident Magistrate gave a summary of the evidence to the initial assessors who returned their opinion before he went on composing his judgment. As stated earlier, there is no gainsaying that the said assessors gave their opinion without hearing the evidence of PW7.

It is trite law that, where an assessor who has not heard all the evidence is allowed to give an opinion on the case, the trial is a nullity. (See Sabasaba Enos' case (supra)). Upon, the above position of the law, it follows in our judgment that, indeed, it was not open for the assessors who had not heard the evidence of one of the prosecution witnesses to give their opinion on the outcome of the case. Given the circumstances, we entirely agree with both counsel that, indeed, the trial of the appellant was partly conducted without the aid of the assessors which, in terms of the then section 265 of the CPA, renders the entire trial a nullity. As urged by Mr. Aron and conceded by Mr. Mazullah, we invoke our revisional jurisdiction in terms of section 4 (2) of the Appellate Jurisdiction Act Chapter 141 of the Revised Laws and proceed to nullify the proceedings of the trial court. We quash the appellant's conviction and set aside the death sentence meted out on her. Considering the very same arguments advanced by Mr. Aron and Mr. Mazullah regarding the course to follow after having quashed the appellant's conviction and setting aside the sentence imposed on her, we find no reason to differ with the two counsel. Needless to say, having found merit in the slightly modified first ground of appeal, it is rather otiose to consider the remaining grounds. In the ultimate event,

we allow the appeal and order for the appellant's immediate release from custody if she is not otherwise detained for some other lawful cause. DATED at MWANZA this 5th day of December, 2024. W. B. KOROSSO JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Judgment delivered this 6th day of December, 2024 in the presence of Mr. Benedicto Ruguge, learned State Attorney for the respondent/Republic also holding brief for Mr. Edwin Aron, learned Counsel for the appellant is hereby certified a true copy of the original.