Chabi Kasuga vs Republic (Criminal Appeal No. 455 of 2021) [2024] TZCA 1182 (3 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA (CORAM: MKUYE, J.A.. MGEYEKWA, J.A. And NGWEMBE. J.A.1 CRIMINAL APPEAL NO. 455 OF 2021 CHABI KASUGA. .... . .............. . ................. . ............................ . APPELLANT VERSUS THE REPUBLIC ............... ,. ...................... . ......... . .................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Iringa) (Matoaolo. J.Y dated the 20th day of August, 2021 in Criminal Session No. 58 of 2017 JUDGMENT OF THE COURT 26th November, & 3rd December, 2024 MKUYE. J.A.: CHABI KUSAGA, the appellant, was charged and convicted of murder by the High Court of Tanzania contrary to section 196 of Penal Code, Cap 16 R.E 2002 and was sentenced to death by hanging. It was alleged in the particulars of the offence that the appellant, on 31/1/2017 at Lyamke village within Kilolo District in Iringa Region did murder one Grace Gavile.

Before embarking on the merit of the appeal, we find it appropriate the narrate albeit brief, the facts of the case leading to this appeal thus: On 31/1/2017, during day time the deceased Grace Gavile was playing with her fellow children in her neighbourhood. Meanwhile, the appellant passed by heading to the residence of Israel Mbuma where he lived. It would appear that, as the appellant was passing, the deceased asked for some money. It is when appellant told her to follow him to his house so that he could give her money and the deceased complied. She went along with him but she did not return home. On the same date, it was reported that Grace Gavile had gone missing. Efforts to locate her were made but bore no fruitful results. Later, it was revealed that the deceased had left with the appellant on the pretext of giving her money to buy burns which would be divided to the children. In the morning of 1/2/2017, the students of Ipate Secondary School who early morning hours went to fetch water at the well came across a gruesome discovery of a half-naked dead body of a young girl nearby. The said body was discovered and relayed the information to village authorities.

Initial inspection of the deceased body, revealed that it was the body of the deceased and that she had been raped. The appellant was then traced and arrested where upon he was tater arraigned before the court leading to his conviction and sentencing as alluded to earlier on. The appellant's conviction based on circumstantial evidence which revolved on the doctrine of the last known person to be seen with the deceased and the confession to the crime. Aggrieved by the decision of the High Court, the appellant has appealed to this Court fronting both substantive memorandum of appeal lodged on 15/12/2021 on six grounds of appeal and supplementary memorandum of appeal consisting three grounds of appeal lodged on 22/11/2024. However, for a reason to be apparent shortly, we do not intend to reproduce them except for ground No. 2 of the supplementary memorandum of appeal as, we think, it is capable of disposing out the matter. The said ground of appeal is to the effect that: "2, That, the tria l High Court Judge neither summed up the case to the gentlem en assessors properly on some vitaI points o f law nor explained the role o f gentlem en assessors before convicting the appellant." When the appeal was called on for hearing, Mr. Lazaro Joseph Hukumu, learned advocate appeared representing the appellant whereas

the respondent Republic, had the services of Mr. Amani Kyando and Ms. Winfrida Mpiwa, both learned State Attorneys. Submitting on the said ground of appeal, Mr. Hukumu contended that, after the assessors were selected, the trial judge did not explain to them their roles before the commencement of the trial. Besides that, he submitted, after the conclusion of both prosecution and defence cases the trial Judge gave a summary of evidence adduced in court. He pointed out that, although in his judgment he indicated that the case depended on circumstantial evidence mainly from PW2, the trial Judge did not explain to the assessors the vital points or how such evidence can be relied upon to mount a conviction against the accused. The learned counsel went on arguing that, the effect of such omission can be reflected on the assessor's opinion as none of them gave opinion which touched the circumstantial evidence. While making reliance of the case of Batram Nkwera @ Mhesa v. The Director of Republic Prosecutions, Criminal Appeal No. 567 of 2019 [2022] TZCA 139 (24 March, 2022), he beseeched the Court to allow this ground of appeal. He was of the view that, the effect of failure to explain the vital points of the circumstantial evidence meant that the assessors did not understand its applicability and that the trial court cannot be said to have set with assessors as was provided for under section 265 of the 4

Criminal Procedure Act, Cap 20 R.E. 2022 (the CPA). He further contended that, the omission to teli assessors the vital points of circumstantial evidence was a fatal irregularity which rendered the proceedings and judgment thereof a nullity. As to the way forward, Mr. Hukumu urged the Court to nullify the proceedings from the stage of summing up and the resultant judgment, quash the conviction and set aside the sentence with an order for a retrial from the stage of summing up to the assessors. In response, Mr. Kyando, prefaced his submissions by declaring his stance that he did not support the appeal. However, on reflection, regard being on this ground of appeal, he conceded that, indeed, the trial judge did not explain the vital points on the circumstantial evidence. He contended that, the trial judge having explained the evidence generally and framed the issues as shown at pages 84 and 85 of the record of appeal, he did not address the assessors with vital points on circumstantial evidence. According to Mr. Kyando, failure to sum up properly to the assessors renders the proceedings and the resultant judgment a nullity. As for the remedy, he urged the Court to nullify both the proceedings and judgment and order for a fresh summing up to the assessors.

In dealing with this issue, we wish to make it clear from the outset that, before section 265 of the CPA was amended through the Written Laws (Miscellaneous Amendments) Act, 2022 (Act No. 1 of 2022), it was a mandatory requirement for all trials conducted before the High Court to be with the aid of assessors who were to be selected by the trial court in terms of section 285 of the CPA, As a matter of practice, after such assessors are proposed, the accused would be availed with opportunity to object or comment on them as was stated in the case of Hilda Innocent v. Republic, Criminal Appeal No. 181 of 2017 [2018] TZCA 185 (6 September 2018). This would be followed with explaining the roles of the assessors by the trial judge which would essentially ensure the assessors7 full involvement as per the dictates of section 177 of the Evidence Act, Cap 6 [R.E. 2022] (the Evidence Act). We are also mindful that, previously, where the assessors were not told their roles before the trial commenced, such trial was rendered to be deemed to have been held without the aid of assessors with the effect of being nullified with an order of a retrial. However, currently the position has changed whereby despite such omission, the Court has engaged itself in considering whether the accused has been prejudiced or there has been a miscarriage of justice. This position has been taken in the case of Michael Luhiye v.

Republic, [1994] T.L.R 181 and Safari Anthony Mtelemko and Another v. Republic, Criminal Appeal No. 404 of 2021 [2023] TZCA 17768 (23 October 2023). In this case, since the trial judge gave assessors a chance to ask questions for clarification to both sides of prosecution and defence, and they utilized such opportunity by asking questions for clarification from witness as they wished, we are of the view that failure to explain their roles before commencement of the trial did not prejudice the appellant. The other limb is that the trial judge having observed in the summing up that the case based on circumstantial evidence (see page 79 of the record of appeal), he did not explain to assessors the vital points relating to circumstantial evidence. The learned State Attorney conceded that the trial judge did not address the assessors the vital points of law. As was rightly observed by the trial judge at the beginning of the summing up, the main evidence in this case was circumstantial as there was no witness who saw when the deceased was killed. Apart from that, there was the appellant's confession in the extra judicial statement recorded by PW4.

It is notable from the record of appeal that the circumstantial evidence came from PW2 (Jackline Mheluka @ Kulwa) who was aged nine years by then who testified in court that on 31/1/2017 she was playing with other children including the deceased Grace Gavile. She explained that while playing the appellant passed there and the deceased asked for money from him. Then, the appellant told the other children to continue playing there while leaving with the deceased on the pretext that he could give her money for buying buns which they would be divided among themselves, but the said Grace did not return. After PW1, the deceased's father came back home found that Grace had not returned and after having been informed by his other children, Mussa and Victory that she was playing with Kulwa and Dotto, he went to inquire from them who told him that she was taken by appellant in order to give her money for buying sweets. PW1 reported to the Village Chairman where upon villagers started searching for her but until the following day she was not found. Then on 1/2/2017 students of Ipeta Secondary School who went to fetch some water at the well found the body of the deceased nearby and informed the village authorities, People gathered there and confirmed that it was the body of the deceased. Apart from that they found the deceased's belongings such as a black underwear, a pair of child's sandals and a

black coat of an adult which was alleged to belong to the appellant. Since the appellant was said to have left with the deceased from where she was playing with other children, he was traced and arrested by militia men. We have already explained the mandatory requirement under section 265 of the Evidence Act before the said provision was amended, for all criminal trials at the High Court to be conducted with the aid of assessors. It was the stance of this Court that the participation of the assessors will be of much assistance only if the assessors are properly directed on the vital points of law in relation to the facts placed before them. Thus, in terms of section 298 of the CPA, the trial Judge is required to explain to the assessors the salient features of law in the summing up. The said provision stipulates as follows: "When the case on both sides is closed, the Judge m ay sum up the evidence fo r the prosecution and the defence and sh all then require each o f the assessors to state his opinion orally as to the case generally and as any specific question o f fact addressed to him by the Judge, and record the opinion . " In times without number this Court emphasized on the need to explain to the assessors the vital points of law in summing up to the

assessors - (See Hosea John Mwaiswelo v. Republic, Criminal Appeal No. 524 of 2019 [2022] TZCA 783 (7 December 2022). We are mindful of the fact that the case of Safari Anthony Mtelemko and Another (supra), we took a different position whereby having considered the anomaly of failure by the trial Judge to address the assessors on vital points of law, we held that unless the trial Judge wants to put specific questions to assessors, he is under no obligation to address the assessors on any salient points and at the end, we held that such anomaly was curable under section 388 of the CPA. However, following the decision in Safari Anthony Mtelemko's case (supra), there had been a new development with regard to this area whereby the Court has taken different views. In the case of Raphael Pius @ Gweso and Another v. Republic, Criminal Appeal No. 377 of 2021 [2024] TZCA 482 (21 June 2024), when the Court was faced with akin scenario, while having regard to the case of Safari Anthony Mtelemko's case (supra), applied prejudice test and held that failure to address the assessors on vital points of law does not vitiate the proceedings. Nevertheless, the Court examined the entire evidence in the case and due to the insufficient evidence, it quashed the conviction and set aside the sentence and set the appellants free.

Yet, in the case of Simon Otieno v. Republic, Criminal Appeal No. 639 of 2020 [2024] TZCA 700 (9 August 2024), the Court was confronted with a situation where the vital points of law on defence of a lib i were not explained to the assessors. It was found that such omission affected the assessors' opinion. Then the Court, as a way forward, after the nullification of the summing up notes and the result judgment ordered the matter to be remitted back to the trial court for proper summing up. In particular, the Court stated as follows: "Having considered the contending subm issions from either learned co u n se l ... the infraction on the summing up notes to the assessors ... it is our considered opinion that, the infraction vitiated the summing up and not the entire trial. In the circum stances, in a ll fairness it is not prudent to n u llify the tria l proceedings. Instead, ordering on fresh summing up to the assessors serves the best interest o f justice . " In this case, as alluded to earlier on, the proof of the case depended on the circumstantial evidence of the appellant being the last person to be seen with the deceased. However, the trial Judge apart from his appreciation that the case depended on circumstantial evidence, did not explain to the assessors as to what entails the circumstantial evidence to mount a conviction or rather to enable them make an li

informed or rational opinion. Yet, the said evidence was discussed in the judgment. Looking at the manner the assessors opined after having been availed with opportunity to do so, one can notice that they did not have such knowledge. For clarity, we leave the portion of assessors opinions to speak for itself as follows: "O PIN IN O N O F ASSESSO R S: 1 st A sse sso r - S tep h en S im on : Honourable Judge in this case in m y opinion the accused Chabi Kasuga is guilty o f m urder for the follow ing reasons: - One, the evidence given by five prosecution witnesses, having given consistent evidence which shows that the accused com m itted the offence . Two, it is the only person who was named. In this case there is no any other person named. Three, the accused did not rebute the prosecution evidence. He never brought a witness to defend him. That is why I find him guilty. That is all. 2nd A sse sso r — M aareth : Honourable Judge in m y opinion the accused is g u ilty o f murder. The evidence o f PW1 Kibadeni

Gavile. He said he m et with the accused person a t the pombe club o f Kibadeni. Accused adm itted to be there. Accused le ft earlier the fact which was also conceded by PW L The accused was seen by PW l wearing the coat which was found a t the scene. There is evidence o f PW2 Jackline @ Kulwa who said accused le ft with the deceased after he has told her to go to take m oney fo r purpose o f buying sw eet The accused le ft with the deceased. PW2 couid not He against him. According to PW3 w hat he told this court is what was stated by PW2 for the incident she w itnessed while aged 4 years. In his defence accused said after return from the pombe club, he found a t home Israel and his daughter and d id not g et out But he did not bring those persons as his witnesses. For those reasons I fin d the accused guilty o f murder. That is all. 3rd A sse sso r — B o n io h a s M w a n a u o ili: Honourable Judge in m y opinion the accused is g u ilty o f m urder because he failed to rebute the evidence o f PW2 that he took and le ft with Grace Gavile who was playing with other children. Accused adm itted to know PW2. Both PW3 and PW l said they saw the accused while a t the pombe dubr he was wearing the black coat which was found a t the scene. 13

Accused failed to bring any witnesses to b a il him out. He did not even bring person who were a t home after arrive there from the pombe cfub. For those reasons I see the accused g u ilty o f the offence o f m urder as charged." As it is, looking at the opinions given by the assessors, it is crystal clear that they did not understand what it entailed for the circumstantial evidence to mount a conviction. Their opinion based on their own understanding of the evidence that was availed before them. It means that, had the trial Judge explained the vital points of law as required, they would have, perhaps, given an informed opinion according to the law. This omission therefore must have prejudiced the appellant. In the case of Mwinura Funguti @ Mumunya v. Republic, Criminal Appeal No. 633 of 2020, [2024] T2CA 581 (18 July 2024), when the Court was faced with a scenario where the trial Judge failed to explain to the assessors the vital points of law, it found that it prejudiced the appellant, which culminated to the trial to be conducted without the participation of the assessors contrary to section 265 of the Criminal Procedure Act as it stood during the trial. In the end, it was found that it rendered both the conviction and sentence against the appellant a nullity.

We subscribe to the above decision. Even in this case, given the circumstances in this case, we are of the considered opinion that, failure by the trial Judge to explain the vital points on the circumstantial evidence that was the sole evidence in the case was prejudicial to the appellant. It rendered the trial to be conducted without the aid of the assessors. Hence, even the conviction and sentence against the appellant were a nullity. As a way forward, having considered the learned counsel submissions, we find that nullifying the entire proceedings may not be a viable option. We think, ordering a nullification of the summing up notes to the assessors and the judgment thereof is more ideal in the circumstances of this case. Consequently, ordering a fresh summing up to assessors will serve the interest of justice. See also: Ndaro Sumun Mabuse @ Amiri @ Ronaldo and 2 Others v. Republic, Criminal Appeal No. 547 of 2019 [2022] TZCA 405 (8 July 2022). That said and done, we allow this ground of appeal and nullify the summing up notes to the assessors, the opinion of the assessors and quash and set aside the conviction and sentence imposed against the appellant. We further direct that the case file be remitted to the High Court in order to conduct a proper summing up to the assessors in accordance with the law and thereby compose a fresh judgment. For 15

avoidance of doubt, since the presiding Judge has retired, this exercise should be done by a successor Judge with at least two assessors who handled the matter previously. It is so ordered. DATED at IRINGA this 2n d day of December, 2024. R. K. MKUYE JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL Judgment delivered this 3rd day of December, 2024 in the presence of Mr. Lazaro Joseph Hukumu, learned counsel for the Appellant and Mr. Amani Kyando, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original.