Fernandes Francis vs Republic (Criminal Appeal No. 1 of 2023) [2024] TZCA 1191 (4 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA fCORAM: MUGASHA. J.A.. KHAMIS. 3.A. And ISMAIL. J J U CRIMINAL APPEAL NO. 01 OF 2023 FERNANDES FRANCIS ............................................................. APPELLANT VERSUS THE REPUBLIC........................................................ ............ RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Bukoba) (Otaru, 3) dated 16th day of December, 2022 in Criminal Session Case No. 97 of 2018 JUDGMENT OF THE COURT 29th November & 4th December, 2024 ISMAIL. J.A.: The appellant fell foul of the law when he was arraigned in court, convicted of murder and sentenced to suffer death by hanging. The alleged incident claimed the life of Joswamu Josiah who drew his last breath on 5th December, 2017. The brutal incident occurred in Ngando village, Nsunga Ward in Misenyi District. The record of appeal bears out that, on 5th December, 2017, the deceased reached out to Imman Josiah, PW4, a cyclist, popularly known

as boda boda, then operating a motor cycle with registration No. MC332 BHX, SunLag, painted red. The red cover of the rear mud guard was printed with a Swahili idiom: 'msione nanyamaza mkadhanisiwaoni'. The deceased asked PW4 to allow him to ride it for an hour, between 14:00 and 15:00 hours. This request was acceded to by PW4. The agreed time came to pass much to the PW4's chagrin. At 17:00 hours, the pensive PW4 began a search for his elusive brother and this took him to the usual boda boda parking area but, as fate would have it, neither his brother nor his colleagues were found. At 20:00 hours, PW4 received information from a certain Mr. Antidius that, at some point in the day, the appellant, commonly known as Katebaka was seen hiring the deceased and that the duo left for a destination that was not apparently established. In the following morning, PW4 decided to escalate the matter to their father, PW5, and the entire family, all of whom feared the worst. It was at that point in time that search for the deceased's whereabouts began in earnest. Their first point of call was the deceased's home but they found nobody. The appellant's aunt from whom they enquired recalled seeing the appellant on 5th December, 2017, when he went to borrow a knife. She advised them to extend their search to Mutukula which they did. They

began by reporting the matter to Mutukula Police Station that the duo and the motor cycle they rode on had gone missing. As they were still pondering their next move luck was conveyed to them as they saw the appellant walking towards them. On enquiry, the appellant told them that, whereas it was true that he was with the appellant the previous day until around 20:00 hours, they subsequently parted ways. Noting that the appellant's evasive denial did not make sense to them, they decided to put him under restraint. They took him to Bunazi boda boda parking area and then to Kyaka police station. At Kyaka, G 4692 D/C Khalifa, PW2, searched the appellant and found him in possession of what was believed to be a set of motor cycle ignition keys that PW4 readily recognized as his. This triggered a charge of stealing a motor cycle. The search for the deceased resumed the following morning, this time involving PW4 and a couple of his friends. Luckily, they found the motorcycle at the corridor of Happy Hour Guest House, located on the Ugandan side, and PW4 identified it with the aid of the registration card and other marks. After sorting out a few protocol issues, the motorcycle was taken to Kyaka police station after which, in the presence of E. 7984 3

D/Sgt. Brighton, PW3, and in the company of PW4 and PW5. They then began their journey to Kagera sugar plantations where the appellant had informed the police that he stashed the deceased's body. Having ended the day without any success, and because it was already dark, the search was postponed to the following morning, this time involving more people, including the boda boda cyclists. The deployment paid dividends as the body of the deceased was found, lifeless, and carrying cut wounds. Dr. Sweetbert Sylveri, PW2, who carried out the postmortem examination report (exhibit PI) attributed the death to bleeding and heart stoppage which was caused by direct injury to the heart. A sketch map of the scene of crime was drawn (exhibit P2) to describe the location at which the deceased's body was found. While under restraint, the appellant recorded a cautioned statement (exhibit P3) and an extra-judicial statement (exhibit P6) in both of which he allegedly gave a blow-by-low account of how he terminated the deceased's life and wrestled control of the motor cycle (exhibit P5). Alongside other exhibits, an extract of the guest house register from which exhibit P5 was allegedly seized was admitted as exhibit P4. 4

At the trial, the prosecution enlisted the assistance of six witnesses while the appellant had himself as the defence's sole witness. His defence was founded on the contention that he was not at the alleged scene of crime on the fateful day, and that he was arrested by police officers from his house. He denied the allegation that he hired the deceased whom he admitted to have known before the incident. Regarding the confessional statements, the appellant contended that he neither recorded the extra judicial statement nor did he append his signature on it. He flatly denied to have killed the deceased. Conclusion of the trial proceedings saw the trial court find that the prosecution's case was credible and had done enough to hold the appellant guilty of the offence charged. Consequently, it convicted the appellant and sentenced him to death. This pronouncement was a pill too bitter to swallow for the appellant. Feeling hard done by the decision, he instituted the instant appeal, initially raising eight grounds of appeal. Five more grounds were filed through a supplementary memorandum of appeal. These grounds were whittled down to only four when the appellant's counsel decided to abandon all other grounds. The grounds that survived the 'purge' are as paraphrased as follows:

1. The trial Judge wrongly invoked the doctrine o f recent possession based on exhibit P5 whose identification and ownership had not been properly established;
2. The trial court erred in not considering the fact that the appellant's confession before Justice o f the Peace was not properly done;
3. The trial court erred in law by convicting the appellant on the basis o f a cautioned statement whose procurement was illegal; and
4. The trial court erred in law when it failed to consider the fact that no witnesses testified in support o f the allegation that the appellant was the last person to be seen with the deceased. Hearing of this appeal pitted Mr. Danstan Mutagahywa, learned counsel who represented the appellant, against Mses. Wampumbulya Shani and Immaculate Mapunda, both learned Senior State Attorneys, along with Mr. Enosh Gabriel Kigoryo, learned State Attorney, all for the respondent Republic. Getting us underway was Mr. Mutagahywa whose onslaught began with ground one that took exception to the learned trial Judge's application of the doctrine of recent possession. He argued that, in terms of the record of appeal (page 54), exhibit P5, the motor cycle, was found in Uganda and 6

that the procedure for its return to Tanzania did not conform to the provisions of the Mutual Legal Assistance Act, Cap. 254 R.E. 2002, rendering it inadmissible in evidence and liable to being expunged from the record. He said that the same applied to ignition keys which were not tendered in court. Learned counsel further argued that, in the entirety of this exercise, section 38 (3) of the Criminal Procedure Act, Cap. 20 R.E. 2022 was not conformed to. In any case, Mr. Mutagahywa argued, no evidence was tendered in court to prove that the stolen property was found with the appellant. Mr. Mutagahywa decried the prosecution's failure to call Happy Hour Guest House attendants to testify on the crucial point of recovery of the motor cycle and how that was linked to the appellant who was alleged to have registered in exhibit P4 and spent a night with them. Addressing us on ground four, Mr. Mutagahywa was critical of the trial court's conclusion that the appellant was the last person to be seen with the deceased while evidence for such reliance was that of PW4 which was nothing but sheer hearsay. He argued that Antidius from whom PW4 got the wind that the deceased left with the appellant and other boda i

boda riders who allegedly saw the appellant with the deceased were material witnesses, available, but not called to testify on this important aspect. It was Mr. Mutagahywa's contention that such failure entitled the court to draw an adverse inference against the prosecution and blurred the potency of the principle of the last person to be seen with the deceased. Submitting on ground two, Mr. Mutagahywa cast aspersions on the legality of the extra-judicial statement, contending that the statement which was recorded 12 days after the appellant's arrest, amidst threats that he would be made disappear ("utapotezwa"). A combination of the two, the learned advocate contended, meant that the said statement was recorded under coercion. With regard to time lapse, Mr. Mutagahywa argued that the long spell of incarceration had caused the appellant enormous stress which was akin to threats and intimidation. He premised his argument on the holding of the Court in Mashimba Dotto @ Lukubanija v. Republic, Criminal Appeal No. 317 of 2013 (unreported). His take is that, it being an involuntary confession, it must be expunged from the evidence. 8

The appellant's argument on ground two is that the recording of the cautioned statement was shrouded in wanton disregard of the law. On this, Mr. Mutagahywa opened several scathing fronts. One, that the statement was recorded on 8th December, 2017, while the appellant was put under restraint on 6th December, 2017. This was well beyond 4 hours stipulated in section 50 (1) of the CPA. Two, that time of finishing the recording was not indicated, meaning that section 57 (2) (e) of the CPA was flouted, thereby rendering exhibit P3 lacking any evidential value. Three, that, whereas the law imposes the duty for the recording officer to certify that he read the statement to the suspect, this is not evident in exhibit P3. The learned counsel contended that, since the conviction and eventual sentence was based on the principles which were wrongly applied, such conviction and sentence are a mere farce that should be addressed by allowing the appeal. For her part, Ms. Shani was adamant that the appeal is unmeritorious and that the respondent was valiantly opposed to it. She based her position on a couple of grounds. One, an oral confession that 9

the appellant allegedly made to PW3, found at page 37 of the record of appeal. She argued that this fell in the realm of evidence catered for in 62 (1) (a) and (b) of the Evidence Act, Cap. 6 R.E. 2022. It led to discovery of the deceased's body. Two, conduct of the appellant prior to his apprehension. Ms. Shani invited us to glance at page 49 of the record of appeal at which it was recorded that the appellant was terrified when he met PW4 and PW5 and that he wanted to run. This conduct was, in her contention, inconsistent with innocence. Three, the extra -judicial statement whose recording was free from any blemishes. Our particular attention was drawn to page 56 of the record of appeal where PW6, the Justice of the Peace, denied that there was any form of torture. She drew a distinction of the facts in the instant matter from the decision in Mashimba Dotto @ Lukubanija (supra). As she held on to her position, the learned counsel joined hands with her counterpart in finding fault in the trial Judge's finding in a number of issues. On the application of recent possession, Ms. Shani concurred with the appellant's counsel that failure to tender the ignition keys and parade the witnesses from Happy Hour Guest House eroded the possibility of letting the doctrine of recent possession apply in the instant matter. 10

On the last person to be seen with the deceased, Ms. Shani was equally skeptical about its applicability in the circumstances of this case. She contended that this principle became a stillborn the moment the prosecution failed to call Antidius to testify during trial. Regarding the cautioned statement, exhibit P3, Ms. Shani conceded that, the fact that the said exhibit was not read to the appellant when it was recorded means that the law was infracted and that the remedy is to expunge it. She quickly urged the Court, however, to spare the testimony of PW3 and let it form the basis of finding that the case against the appellant was made out. Mr. Mutagahywa's rejoinder was essentially an emphasis of the fact that the much talked about oral confession was that of Fernandes Francis Katebaka and not, Fernandes Francis, the appellant. From these partially contending submissions, the singular issue for our determination is whether the appellant's conviction was properly grounded. We intend to answer this question by first disposing of points or grounds on which the learned counsel are in unison. As we embark on that journey, we wish to observe that the decision to convict the appellant 11

of the offence he was charged with rested on three key pillars, namely: doctrine of recent possession; the last person to be seen with the deceased; and the appellant's own confessional account. The appellant's complaint that has drawn a support from the respondent's side, with respect to recent possession, is that crucial evidence which would justify the applicability of that doctrine was missing. For a start, it behooves us to state that, the doctrine of recent possession is a rebuttable principle which is to the effect that a person found in possession of stolen goods soon after the theft incident is either a thief or has received them while aware that such goods have been stolen. If he satisfactorily accounts for the possession of such goods then he is spared from the blushes of such possession -see: Julius Justice & 4 Others v. Republic, Criminal Appeal No. 155 of 2005 (unreported). Significantly, the nets of this doctrine can be cast wide enough to apply in cases where death occurs in the incident that preceded it. From what the record of appeal offers, there is no dispute that neither the keys to the motorcycle nor the motor cycle itself (exhibit P5) was recovered or seized from the appellant. Not even exhibit P4, the guest house register 12

extract gave an indication that seizure, as known to section 38 (3) of the CPA was effected against the appellant. In the absence of this crucial testimony, with respect, the doctrine, which the trial Judge so heavily relied on falls by the way side and we find the appellant's complaint plausible. We allow this ground of appeal. The appellant's other consternation resides in what is alleged to be the wrong application of the principle of the last person to be seen with the deceased. In this case/the "last person to be seen with the deceased" principle, was brought into play after it was testified by PW4 that he was informed that the appellant was the person who was seen hiring the deceased and left together to an unknown destination. This was intended to inculpate the accused. While this principle is quite renowned in criminal proceedings and when properly invoked may be the basis for conviction, we need to stress that a serious caution ought to be exercised in its application. This is in view of the fact that, that alone is not sufficient evidence to hold an accused guilty of the murder of a deceased. This is a universal view that has been acknowledged across jurisdictions. Thus, in Rajwali v. State, A.I.R 1959 J. SCK 66 at P. 67: 1959 Cr. LJ. 839, the Supreme Court of India guided as follows:

"In a murder trial the circumstances that the deceased was last seen with the accused and the fact that after the murder the accused disappeared may be the circumstances which may create great suspicion against the accused but they cannot be sufficient to hold accused guilty o f murder o f the deceased. In a criminal prosecution the burden of proof, on the whole, remains, on the prosecution and in order to succeed the prosecution must produce evidence to substantiate its case. Normally it cannot take advantage o f the weakness o f the defence." Instructively, the foregoing excerpt appears to have followed the path charted earlier on, in the decision of In re Dauget Saitaya, 1955 W.R. 863 wherein the accused was charged with the murder of the woman who had been living with him as his wife. The circumstances established were that he and the deceased were seen together on the day of the incident, before he subsequently made himself scarce in the neighbourhood. These circumstances were held to be insufficient to sustain a conviction of the accused for murder. 14

Back home, this Court took an inspiration from the Indian persuasive position and held in Richard Matangule and Another v. Republic [1992] T.L.R. 5, as follows: "...the appellants were the last known persons to have been with the deceased. This fact, without any doubt, casts a very good suspicion on them. But this in is itself is not conclusive proof that the appellants killed the deceased". As rightly contended by Mr. Mutagahywa, and magnanimously conceded by Ms. Shani, the testimony adduced in court did not establish, with any semblance of certainty, that the appellant was the last person to be seen with the deceased. We agree and hold that the principle would be properly invoked if those who are said to have informed PW4 of such 'sighting', including Antidius, were called to testify on the fact. Absence of their testimony while it is widely believed that they could be called for testimony raises a few eyebrows which justify the drawing of adverse inference against the prosecution. We are not convinced, one bit, that the testimony of PW4, alone, is probatively sufficient to base a finding of guilt on. This, therefore, consigns the testimony of PW4 to the dustbin of insignificance. We, accordingly, allow this ground of appeal. 15

Next for our consideration is the question of legality or otherwise of the cautioned statement, exhibit P3. Both counsel are at one that the said testimony is ailing and it ought not to have been admitted in evidence and form the basis of the appellant's conviction. We have scrupulously reviewed the said exhibit and, true to what the counsel contended, the making it and its admission as evidence were marred by serious irregularities which, had they been critically reviewed, the trial court would not let it see the light of the day. These are: One, that the same was recorded far beyond the four-hour rule thus offending section 50 (1) of the CPA. Two, that the statement carries no verification stating that the recording officer read it to the appellant after he recorded it as the law obliged him under section 57 (4) of the CPA -see: Jackson William & Another v. Republic, Criminal Appeal No. 327 of 2022 [2024] TZCA (28 November 2024, TANZLII). One more glaring infraction is the fact that PW3 who tendered the exhibit in court had an unfettered field day when he was allowed to testify on the contents ahead of its clearance and admission by the court. This, as we have held on numerous occasions, is an act of smuggling it through the back door - see: Robinson Mwanjisi & 3 Others v. Republic 16

[2003] T.L.R. 218; Director of Public Prosecutions v. Festo Emmanuel Msongaleli & Another, Criminal Appeal No. 62 of 2017; and Ntobangi Kelya & Another v. Republic, Criminal Appeal No. 256 of 2017 (both unreported). We take the view that it was horrendous for the learned trial Judge to peg her hopes on a fatally defective testimony to find the appellant guilty. We, in consequence, allow this ground of appeal and expunge exhibit P3. The last complaint constitutes a battleground that has polarized the counsel for the disputants. It relates to the value that should be attached to the extra-judicial statement, exhibit P6. As we delve into this conversation, we need to remind that, though admitted during trial, the said testimony was repudiated by the appellant. In an oscillating fashion, he, at one time, said that he never made any confession and that, the signature appearing therein was not his, while he subsequently imputed that torture was used to extract his confession. We need to preface our analysis by restating the known canon of criminal law which is to the effect that, guilt of the accused may be proved through evidence led by prosecution witnesses while, in some cases, the accused's own factual account, in the form of a confessional statement 17

before a police officer or Justice of the Peace, may be the base on which his culpable role may be established. This reality beds well with the long- established principle of criminal evidence which was postulated by Lord Reid in S (an infant) v. Manchester City Recorder and Others [1969] 3 All E.R.1230, when he lucidly observed as follows: "the desire o f any court must be to ensure so far as possible that only those are punished who are in fact guilty. The duty o f a court to dear the innocent must be equal or superior in importance to its duty to convict and punish the guilty. G uilt may be proved by evidence. But also it may be confessed. "[Emphasis is ours] The principle in the quoted excerpt was taken a notch higher, when the Court held in Twaha Alii & 5 Others v. Republic, Criminal Appeal No. 78 of 2004 (unreported) that an accused who confesses his guilt is the best witness -see also: Inota Gishi & 3 Others v. Republic, Criminal Appeal No. 5 of 2008; and Msafiri Jumanne & 2 Others v. Republic, Criminal Appeal No. 187 of 2006 (both unreported). Crucially, the holding in the cited cases rhymes well with what section 31 of the Evidence Act provides. 18

Underscoring the significance of an accused's confession and the manner in which it should be applied in determining his guilt, this Court has taken a stance that, in doing so, regard must be had to the fact that, since a confessional statement is essentially an admission, the court intending to rely on it must, before it does so, satisfy itself that the accused against whom the confession is sought to be proved, has admitted to all ingredients of an offence to qualify to be an admission under section 3 (1) of the Evidence Act -see: Juma Magori @ Patrick & 4 Others v. Republic, Criminal Appeal No. 328 of 2014 (unreported) in which the Court drew an inspiration from the Supreme Court of Nigeria in Ikechukwu Okoh v. The State (2014) LPER-22589 (SC). The postulation in Ikechukwu Okoh (supra) borrowed heavily from the reasoning of an English Court in the old case of R v. Sykes (1913) 1 Cr. App. Report 233. In the latter, basic principles necessary for ascertaining probity and weight to be accorded to confessional statements were expounded. In the end, the Supreme Court of Nigeria observed: "The questions the court must be able to answer before it can rely on a confessional statement to convict an accusedperson were set out in the case 19

o f R i/. Sykes (1913) 1 Cr. App. Report233 and are as follows: (a) Is there anything outside it to show that it is true? (b) Is it corroborated? (c) Are the factors stated in it true as can be tested? (d) Was the accused the man who had the opportunity of committing the offence? Is the confession possible? (f) Is it consistent with other facts which have been ascertained and proved? (at 22)..." Noteworthy, in arriving at the conclusion in Juma Magori (supra), we referred to our earlier decision in Emmanuel Lohay and Udagene Yalooha v. Republic, Criminal Appeal No. 278 of 2010 (unreported) which emphasized that a confession worthy of reliance must unfailingly be able to: "... shed some light on how the deceased concerned met his death, role played by each o f the accused person , such details as to assume the courts concerned that the maker of the statement must have played some culpable role in the death of the deceased/' (at p. 22.) See also: Abdul Farijala & Another v. Republic, Criminal Appeal No. 99 of 2008 (unreported). 20

The position taken by Mr. Mutagahywa is that, since the extra judicial statement was repudiated by the appellant, it was wrong for the trial court to rely on it and hold the appellant guilty of the offence. In his contention, this testimony lacked the evidential value and it ought to have been discarded. With respect, this contention is, in our considered view, specious. The legal position as it currently obtains, and we have underscored this many a time, is that, a repudiated confession can constitute the basis for conviction provided that the same is corroborated by some other testimony. In the absence of corroborating testimony, the court can still use it to convict if it fully satisfies itself that the confessor has stated nothing but the truth. This enduring legal exposition was proffered by the erstwhile East African Court of Appeal in Tuwamoi v. Uganda [1967] E.A. 84 wherein it was observed: "What this passage says is that in order for any confession to be admitted in evidence, it must first and foremost be adjudged voluntary. I f it is involuntary that is the end o f the matter and it cannot be admitted. I f it is adjudged voluntary and admitted but it is retracted or repudiated by the accused\ the court will then as a matter o fpractice 21

look for corroboration. But if corroboration cannot be found, that is, if the confession is the only evidence against the accused, the court may found a conviction thereon if it is fully satisfied that the confession is true." [Emphasis added] The view in Tuwamoi (supra) was adopted in subsequent decisions across the region. In Kashindye Meli v. Republic [2002] T.L.R. 374, we held as follows: "It is now settled law that although it is dangerous to act upon repudiated or retracted confession unless such confession is corroborated, the court may act upon such confession if it is satisfied that the confession could not but be true." [Emphasis is added] In the instant matter, part of the appellant's testimony whose legality or otherwise has elicited divergent views is as reproduced hereunder: "...Akaniambia kama unaweza kupata pikipiki ndipo naweza kukupatia pesa ya haraka. Ndipo kaka akaniambia hana namna nyingine ya kunisaidia. Ikabidi nirudi nyumbani. NiHpoondoka 22

nikamuambia Kasozi hiyo pikipiki naweza kuipata. Akaniambia ukileta nitakupatia pesa papo hapo. Nikaona maji yamenifika shingoni. Ndipo nikaenda Bunazi nikamkodi dogo mwenye pikipiki niiimuambia anipeieke Ngando. Nikapanda kwenye pikipiki tukaenda. Tuiipofika kwenye miwa nikamuambia asimame kuna kitu nataka kuchukua hapo kwenye miwa. Nikafikiria kama nikimnyang'anya pikipiki tu haiafu nikamuacha ataenda kunisemea nikamatwe muda huo huo. Ndipo nikampeieka kwenye miwa nikamuambia njoo unisaidie kubeba mzigo wangu tuupakie kwenye pikipiki. Akanifuata katikati ya miwa. Ndipo nikamshika shingoni na niiikuwa na misumari miwiii mfukoni kwa kuwa mimi ni fundi wa kuezeka ndipo nikamchoma begani karibu na shingo pande zote mbiii za shingo na pia nikamchoma pia tumboni mkono wa kuiia. Nikamuacha amekufa Hi niondoke na pikipiki hiyo. Nikachukua funguo mfukoni mwake nikaondoka nikiendesha pikipiki nikaenda moja kwa moja mpaka Mtukuia. Niiipofika Mtukuia kwa Kasozi sikukumkuta nikaambiwa ameshaenda kazini. Nikaenda sehemu nikapakipikipiki nikamsubiri aje. Wakati narudi kuangaiia kama Kasozi amerudi 23

nikakutana na ndugu zake marehemu wakaniuliza alipo maehemu. Nikawaambia tuliachana naye kwa kuwa hiyo ilikuwa siku nyingine. Baada ya tukio nililala gesti huko huko Mtukula." This stunning revelation breeds a nagging question that calls for our attention, and it is whether there exists a testimony that can corroborate the appellant's self-inculpatory testimony. The answer to this question is in the affirmative and, in our considered view, such testimony is in the form of factual account narrated by PW4, Iman Josiah, thedeceased's brother, who is also the owner of the stolen motor cycle. At page 50 of the record of appeal, the said witness is quoted as saying: "... Katabaka (the accused) was in a defender with police. On the way they diverged towards old Kagera Sugar and directed us to follow them. We followed the defender up to the pivot station that irrigates the sugarcane farm. They stopped and informed us that the accused (Katebaka) said that he left my brother there. We started searching the sugarcane farm in vain. It was getting dark so the search stopped until the following day. On 8/12/2017 the Chairman o f Kabuia Village called a residents]' meeting. We all went there and were 24

advised to help the search at the sugarcane farms where we were [shown] yesterday. We went there before the police arrived we could not find him immediately but left other people there still searching. The police came out to listen to us because we were a big group. But luckily before any decisions were made, the search team that was left behind found the body. We all went back [to] the sugarcane farm. After realizing that my young brother was dead I was completely devastated and fainted..." Further corroboration can be extracted from the testimony of PW5, Josiah Ndyamkama Kalugendo, found at page 54 of the record. He testified that his son's lifeless body was found on 8th December, 2017, in the middle of the sugarcane plantation, near Urando village, and that he was able to identify it as his son's. What we distil from this corroborating testimony fortifies the view that the appellant's confessional statement, made through exhibit P6, could not be anything but a true account that reveals the details of how he hatched the plan and executed it to perfection. We are of the settled view that the trial court was quite in order 25

when it relied on the appellant's confession to hold him guilty of the charged offence and convict him as it did. But even assuming, just for the sake of argument, that the testimony adduced by PW4 and PW5 did not have what it takes to corroborate the appellant's confession, and the appellant has maintained his studious denial that he never made any confession, he did not say if what is stated, in such great detail, is not true. One would also wonder where PW3 would get such details which were known to the appellant alone and he never shared any of that with anybody. This persuades us to invoke the wisdom we showered in M ichael Luhiye v. Republic (1994) T.L.R. 181 in which we observed: "The appellants cautioned statement to the police was so detailed elaborate and thorough that no other person could have made the statementbut the appellant." See also: Tabu Nyanda @ Katwiga v. Republic, Criminal Appeal No. 220 of 2004 (unreported). This finding, therefore, quells the fears that Mr. Mutagahywa had on the potency of the appellant's retracted or repudiated confession in 26

grounding the conviction. This ground of appeal falls by the wayside and we dismiss it. In the upshot of all this, save for grounds which were allowed, this appeal fails and it is hereby dismissed. DATED at BUKOBA this 4th day of December, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Judgment delivered this 4th day of December, 2024 in the presence of Mr. Danstan Mutagahywa, learned counsel for the appellant y f and Mr. Elias Petro Subi, learned State Attorney for the 27