Robert Sita @ Muhoja vs Republic (Criminal Appeal No. 638 of 2021) [2024] TZCA 1190 (4 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA ( CORAM: KEREFU, 3.A.. MWAMPASHI. 3. A. And FELESHI. 3.A.^ CRIMINAL APPEAL N0.638 OF 2021 ROBERT SITA @ MHOJA ............................................................... APPELLANT VERSUS THE REPUBLIC..........................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Rumanvika. 3.) dated the 25th day of March, 2021 in Criminal Sessions Case No. 121 of 2016 JUDGMENT OF THE COURT 26th November & 4 h December, 2024 MWAMPASHI. J.A.: Robert Sita @ Mhoja, the appellant herein, was charged before the High Court of Tanzania at Mwanza sitting at Geita (the trial court), with the offence of murder contrary to sections 196 and 197 both of the Penal Code [Cap. 16 R.E. 2002; now R.E. 2022] (the Penal Code). According to the information laid by the prosecution, the appellant allegedly murdered one Kalala d/o Mashikolwa @ Augustine (the deceased), on 05.08.2014 around 07:30 hours at Bugulula Village within the District and Region of Geita. The appellant pleaded not guilty to the charge. However, after a full trial, he was

convicted as charged and was duly sentenced to suffer death by hanging hence, the instant appeal. Briefly, the evidence from 5 prosecution witnesses upon which the conviction by the trial court was predicated was as follows: In the morning hours of 05.08.2014, the deceased was found brutally murdered in her house at Bugulula Village. According to Juma Tizeba (PW3) who, by then, was the Bugulula Village Executive Officer, the deceased and the appellant had been living together as wife and husband. The murder was reported to the police and acting on the report, E.1454 D/Sgt. Shaban (PW1) of Geita Police Station accompanied the OC-CID of Geita to the scene of crime where the dead boy of the deceased with a huge cut wound on her throat was found. The prime suspect was the appellant who had allegedly gone missing and who was later arrested on 28.08.2014. Upon interrogation, the appellant allegedly admitted having committed the murder. His cautioned statement to that effect, was recorded by PW1 and despite the objection raised against its admission in evidence, it was, after a trial within a trial has been conducted, admitted in evidence as Exhibit PI. Following the appellant's alleged admission to have committed the offence in question, Inspector Amran Msangi (PW2) conducted a search in the appellant's house on 04.09.2014 in the presence of PW3. In that search, the appellant allegedly led to the recovery of a bush knife (a panga) hidden 2

behind the house. Without objection, the panga was admitted in evidence as Exhibit P3. However, the admission of the relevant search order was objected to but the objection was overruled and the same was admitted as Exhibit P2. On 30.08.2014, the appellant was taken before Hamad Hussein Abdalla (PW4), the Kalangalala Ward Executive Officer and the Justice of Peace, who recorded the appellant's extra judicial statement. The admission of the extra judicial statement in evidence was objected to on the ground that it was not voluntarily made. A very brief trial within a trial was conducted, the objection was overruled and the same was admitted in evidence as Exhibit P4. An autopsy on the deceased's body was performed by Dr. Joseph Makuma (PW5) of Geita District Hospital on 05.08.2014. According to the post mortem examination report which was admitted in evidence as Exhibit P5, the death was unnatural and its cause was severe haemorrhage from the cut wound on the throat which the deceased had sustained. In his very brief defence, the appellant admitted that the deceased was his wife since 2009 till in 2012 when the two parted ways. He also contended that, after separating from the deceased, he moved to Bwanga and did not see her again. He thus, maintained his denial of any involvement in the murder in question. 3

The trial court found the appellant guilty as charged. It was found that, since the appellant was the husband of the deceased then, he might had spent the material night with her prior to her death. The appellant was also found to have been the last person to be seen with the deceased. Further, the trial court found that, the failure by the appellant to give explanation on what happened to the deceased, corroborated the two repudiated confessional statements. In principle, the conviction was thus, based on the notion that the appellant was the last person to have been with the deceased and on the appellant's cautioned statement (Exhibit PI) and extra judicial statement (exhibit P4). Aggrieved by the conviction and the death sentence imposed on him, the appellant has, thus, preferred the instant appeal before this Court. Initially, the appellant had earlier on 07.10.2021 and 19.10.2023 lodged two memoranda of appeal. However, upon being assigned to represent the appellant, Mr. Emmanuel Japhet Ndamo Sayi, learned advocate, lodged, in substitution of the two memoranda of appeal earlier filed by the appellant, a memorandum of appeal comprising the following 4 grounds of appeal:

1. That, the High Court erred in iaw and fact in convicting the appellant basing on the doctrine that the appellant was the last person to be with the deceased without any proof;
2. That, the trial court erred in law in convicting the appellant relying on Exhibit PI (the cautioned statement), Exhibit P2 (the search order) 4

and Exhibit P4 (the extra judicial statement) which were admitted without rulings on the objections; 3. That, the trial court erred in law in convicting the appellant without considering his defence; and 4. That, in the circumstances, the prosecution failed to prove its case beyond reasonable doubt In his submissions in support of the appeal, beginning with ground 2, on which immense impetus was put by Mr. Sayi, it was submitted by him that, Exhibits PI (the appellant's cautioned statement), P2 (the search order) and P4 (the extra judicial statement), were improperly admitted in evidence and wrongly relied upon by the trial court in convicting the appellant. Mr. Sayi expounded his complaint by contending that, when the prosecution sought to tender each of the said three exhibits in evidence, objections were raised but the trial court overruled the objections and admitted them in evidence without giving reasons. He submitted that, though the trial court promised to incorporate the reasons for overruling the objections in its ruling on the case to answer or in the judgment, that was not the case as no reasons were given neither in the ruling on a case to answer nor in the judgment. As to the effects of the trial court's failure to give reasons for overruling the objections against the admission of Exhibits PI, P2 and P4, initially, relying on the decision of the Court in Kadege Thabit @ Shankara 5

v. Republic (Criminal Appeal No. 409 of 2021) [2023] TZCA 17711 (4 October 2023: TanzLII), it was the argument by Mr. Sayi that, the failure to give reasons is tantamount to failing to make a decision. In that case, it was submitted by him that, as no decision was made by the trial court this Court lacked jurisdiction over the matter. He argued that, because the trial court did not concussively determine the issue of admissibility of the relevant exhibits then, the Court cannot exercise its appellate powers under section 4 (1) of the Appellate Jurisdiction Act [Cap 141 R.E.2002] (the AJA). He thus, prayed for the trial court proceedings to be nullified, the resultant judgment quashed with an order for a retrial. However, upon further reflection, Mr. Sayi argued that since Exhibits PI, P2 and P4 were irregularly admitted in evidence hence prejudicing the appellant who could not well mount a meaningful defence, the same should be expunged from the record. He added that, notwithstanding the irregularity in admitting the said exhibits, Exhibit PI was recorded beyond the prescribed period of time and also that Exhibit P4 was made by the appellant not as a free agent. It was further argued by Mr. Sayi that, if Exhibits PI, P2 and P4 are expunged from the record, the remaining evidence is insufficient and cannot support the charge of murder against the appellant. 6

Regarding the remaining grounds of appeal, Mr. Sayi briefly submitted that there was no evidence to prove that the appellant was the last person to be seen with the deceased as concluded by the trial court. He also argued that the trial court did not consider the appellant's defence and finally, that the case against the appellant was not proved to the hilt. He thus urged the Court to allow the appeal by quashing the conviction, setting aside the sentence and setting the appellant free. Ms. Verediana Peter Mlenza, learned Senior State Attorney, who represented the respondent Republic, was in agreement with Mr. Sayi that the record of appeal clearly show that the appellant raised objections against the admission in evidence of Exhibits PI, P2 and P4, that the objections were overruled and the exhibits were admitted in evidence. She also agreed that reasons for overruling the objections were reserved by the trial court with a promise to incorporate them either in the ruling on the case to answer or in the judgment which was not the case as no reasons were incorporated therein as promised. To her, the way forward or remedy is for the trial court proceedings from the stage when the relevant exhibits were admitted in evidence to be nullified and for the case to be remitted to the trial court so that reasons for overruling the objections should be given and a fresh judgment be composed. 7

Ms. Mlenza opposed the proposition for the relevant exhibits to be expunged from the record and for the appeal to be allowed. She argued that, should the Court expunge the exhibits in question, there is still sufficient evidence remaining proving that the appellant and the deceased were living together and that the appellant was the last person to have been with the deceased. She thus, submitted that the case against the appellant was proved beyond reasonable doubt. In that regard, she urged us to dismiss the appeal. In his brief rejoinder, Mr. Sayi reiterated his submissions in chief. He also contended that there was no evidence to prove that the appellant was with the deceased on the fateful night. He prayed for the appeal to be allowed. On our part, having examined the record of appeal, we are in agreement with the counsel for the parties that the admissibility of Exhibits PI, P2 and P4 was objected to but the trial court overruled the objections and admitted them in evidence without giving reasons. The record of appeal bears out at page 97 that, when the prosecution sought to tender the appellant's cautioned statement, an objection was raised that the same was involuntarily made. A brief trial within a trial was conducted, the objection was overruled and the statement was admitted as exhibit PI. Reasons for overruling the objection were not given and it was promised that the same 8

would be incorporated in the ruling on a case to answer or in the judgment. Similarly, at page 100 of the record of appeal, the admission of the search order was objected to. However, the objection was overruled, the search order was admitted as exhibit P2 and reasons were deferred to be given in the ruling on a case to answer or in the judgment. Again, at page 104 of the record of appeal, a trial within a trial was conducted to test the voluntariness of the extra judicial statement following the objection raised against its admissibility. The objection was overruled and the statement was admitted as exhibit P4. It was again promised that reasons for overruling the objection would be incorporated in the ruling on a case to answer or judgment. It is also common ground that, the trial court did not honour its promise to give reasons for overruling the objections against the admissibility of Exhibits PI, P2 and P3. At page 108 of the record of appeal, in a single sentence, the trial court ruled that a prima facie case had been established against the appellant but no reasons for overruling the objections against the admissibility of Exhibits PI, P2 and P3 were incorporated therein. Even in the judgment running from pages 132 to 137 of the record of appeal, there are no reasons for overruling the objections incorporated therein as promised by the trial court. Admittedly, the procedure adopted by the trial court is out of the ordinary. The failure to give reasons for overruling the objections against the 9

admission of Exhibits PI, P2 and P4, was prejudicial to the appellant. The trial was conducted without the appellant knowing the reasons behind the objections against the admission of the relevant exhibits being overruled. As on what should be the way forward or remedy, the initial argument by Mr. Sayi, as intimated earlier, was for an order of retrial to be made because, to him, the issue on the admissibility of the exhibits was not conclusively decided by the trial court hence denying the Court the jurisdiction to entertain the appeal. With due respect, we are not in agreement with Mr. Sayi that the Court lacks jurisdiction to entertain the instant appeal. It is our considered view that, since the objections were specific for the said exhibits not to be admitted in evidence and as the exhibits were admitted, then it cannot be said that the trial court did not render its decision. Under the circumstances of this case, though, reasons for the decisions were not given, the trial court made the decisions of admitting in evidence the relevant exhibits, the decisions which let the evidence in those exhibits decisive in the judgment amenable to be challenged before the Court. Further, while Mr. Sayi's argument on further reflection was for Exhibits PI. P2 and P4 to be expunged from the record and for the remaining evidence on record to be revisited and analysed to consider whether it is sufficient to the extent of proving the case against the appellant beyond any 10

reasonable doubt, Ms. Mlenza was of a different standpoint. She proposed that the trial court proceedings from the stage when the relevant exhibits were admitted in evidence, be nullified and the matter be remitted to the trial court for the reasons of overruling the objections to be given and for composition of a fresh judgment. On our part, having considered the circumstances of this case, we do not think that remitting the case to the trial court is viable. We buy the proposal by Mr. Sayi for the exhibits in question to be disregarded and for the remaining evidence on record to be reviewed in order to consider whether it is sufficient to warrant the conviction or not. In taking this course, we have also taken into consideration the provisions of section 178 of the Law of Evidence Act [Cap 6 R.E. 2022] under which it is provided that: "The improper admission or rejection o f evidence shall not, o f itself, constitute grounds for a new trial or reversal o f any decision in any case if it appears to the court before which such objection is raised that, independently o f the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that the rejected evidence, had it been received, the court would not have varied the decision". We think we should also point out, at this juncture, that, this is not the first time the Court is confronted with issues arising from failure by trial

courts to give reasons for overruling objections against the admission of exhibits. In the case of Revocatus Stephano v. Republic (Criminal Appeal No. 278 of 2021) [2024] TZCA 791(20 August 2024; TanzLII), the admissibility of a cautioned statement was objected to but the objection was overruled and the same was admitted in evidence without reasons for overruling the objection being given. On appeal, this Court observed that: "We wish to emphasise that, the process o f admission o f a document, like the one at hand, commences with the admissibility test where any objection can be taken. It was incumbent upon the trial court to first rule on the admissibility o f the document prior to relying on it In our view, since no reasons were made known to the parties, in particular, the appellant, it amounted into infringement o f the basic right o f fair hearing.... The appellant's cautioned statement complained to have been procured involuntarily, was admitted after trial within a trial without reasons being given but the same was heavily relied upon in convicting the appellant. We think, this prejudiced the appellant and even the prosecution side as they did not know the reasons for the admission o f such statement We thus agree with both appellant and respondent that this was an irregularity with the effect o f discarding such cautioned statement". 12

Furthermore, in the case of Godfrey William @ Matiko and Another v. Republic (Criminal Appeal No. 134 of 2022) [2022] TZCA 403 (8 July 2022), dealing with an akin scenario, the Court stated that: "As we intimated earlier, we agree with them on this point and we wish to emphasise that, in a criminal trial, where an objection is raised on the admission o f cautioned statement or extrajudicial statement, the trial Judge has a duty to conduct a trial within a trial and come to a conclusion as to whether it should admit it or otherwise. It follows therefore that the procedure that was adopted by the trial Judge, in the case at hand, o f admitting an exhibit without making a finding and conclusion on whether it was voluntarily obtained or not was, with respect, improper. As such, exhibit P2 cannot be validly relied upon in evidence. Consequently, we accept the invitation and we hereby expunge exhibit P2 from the record o f appear. Again, in Sanda Kishosha @ Karuto and 3 Others v. Republic (Criminal Appeal No. 459 of 2021) [2023] TZCA 17581 (30 August 2023; TanzLII), it was observed by the Court that: "The record shows that the trial Judge conducted a trial within a trial to determine its voluntariness which was quite in order. At the end o f it he overruled the objection but reserved reasons to be 13

incorporated in thejudgment Nevertheless, no such reasons were incorporated in the judgment Yet, the trial Judge relied upon exhibit P5 in convicting the first appellant. Consistent with the Court's holding in Mayamba Mjarifu (supra), the procedure adopted by the trial Judge for deferring reasons after overruling the objections and not giving such reasons in the judgment was unorthodox and no doubt irregular. The effect from such irregularity was discussed by the Court in the above cited decision thus: 'We think Mr. Mutalemwa is right in submitting that the appellants were prejudiced because by mounting their defence before knowing the reasons for the decisions in the trials within trial, they were denied relevant information to properly challenge the prosecution case. This, in our view, is what the defunct East Africa Court o f Appeal said in Mr. Muraira Karengwa vs. Republic (1954)21 E.A.C.A. 262 at page 264 that "There is obviously a very real danger o f prejudice here the defence may be caught on horns o f a dilemma...". Based on the above discussion and being guided by the position of the Court in the above cited cases, we thus, find ground 2 of the appeal meritorious. Exhibits PI, P2 and P4 were improperly and irregularly received in evidence and they are therefore hereby discarded. 14

Having discarded Exhibits PI, P2 and P4 and based on the circumstances of this case, we are of a considered view that the remaining evidence is insufficient and incapable of warranting the conviction of the appellant. As we have alluded to earlier, the conviction by the trial court was based on Exhibits PI and P4, which have been discarded, and on the notion that the appellant was the last person to have been with the deceased. The question before us is whether there is evidence in record to prove that the appellant was the last person to have been with the deceased. From the evidence on record, the answer is in the negative. There is no cogent evidence to establish that the appellant was the last person to have been with the deceased. The only slight evidence tending to support the said notion is that from PW3 whose evidence is to the effect that the appellant and the deceased used to live together as husband and wife. Unfortunately, PW3 did not tell when did it came to his knowledge that the two were living together and he also did not tell if he at least saw the appellant and the deceased together on the fateful day. It should be borne in mind that, in his defence, the appellant did not deny that the deceased was his wife since 2009 and that at a certain point in time he had been living with the deceased. His contention, which casts doubts on PW3's evidence in that respect, was however that he and the deceased had parted ways in 2012 and that since then he had not set his eyes on the deceased. 15

As we have demonstrated above, the fact that the appellant was the last person to have been with the deceased casts grave suspicions. There was no sufficient evidence to prove that the appellant was the last person to have been seen with the deceased. Apart from the fact that the evidence given by PW3 to that effect, leaves a lot to be desired as pointed out above, there was no other piece of evidence to corroborate it. It is thus, clear that the trial court improperly invoked the "last seen doctrine". Regarding the applicability of the doctrine, the Court in its very recent decision in the case of Maswi Nchama v. Republic (Criminal Appeal No. 466 of 2021) [2024] TZCA 1157 (29 November 2024;TanzLII), stated that: "In the circumstances, it is our considered view that, the said fact, that the appellant was the last person to be with the deceased, in itself, is not conclusive evidence to establish that it was the appellant who killed him, other cogent corroboration evidence was necessary, as suspicious alone, however strong, cannot be a ground for conviction". See also, Juma Zuberi v. Republic [1884] T.L.R. 51, Twaha Elias Mwanandugu v. Republic [2000] T.L.R. 277, Peter Mabara v. Republic (Criminal Appeal No. 242 of 2016) [2017] TZCA 327 (14 December 2017;TanzLII) and Lucas Njoweka v. Republic, Criminal Appeal No.220 of 2008 (unreported). 16

In the totality of what we have endeavoured to discuss above, we find that the case against the appellant was not proved to the required standard. It was not proved to the hilt that it was the appellant who committed the murder in question. In the circumstances, we allow the appeal, quash the conviction and set aside the sentence meted out against him. We order that the appellant be released from the custody forthwith unless he is otherwise lawfully held. DATED at MWANZA this 4thday 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 4th day of December, 2024 in the presence of Mr. Sileo Mazula, learned State Attorney for the Respondent/Republic, also holding brief for Mr. Emmanuel Joseph Sayi, learned counsel for the Appellant, is hereby certified as a true copy of the