Emmanuel Juhudi Msomba @ Msomba vs Republic (Criminal Appeal No. 533 of 2021) [2024] TZCA 1164 (2 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA ( CORAM: MWANPAMBO, J.A.. KAIRO. J.A. And ISSA. J.A.^ CRIMINAL APPEAL NO. 533 OF 2021 EMMANUEL JUHUDI MSOMBA @ MSOMBA .................................. APPELLANT VERSUS THE REPUBLIC..........................................................................RESPONDENT (Appeal from the decision of the Resident Magistrate of Mbeya at Mbeya) (Laizer, SRM- Ext. Jur.^ dated 15th day of October, 2021 in Criminal Session Case No. 29 of 2018 JUDGMENT OF THE COURT 25th November & 2n d December, 2024 MWANPAMBO, J.A.: The appellant, Emmanuel Juhudi Msomba @ Mnyiha was convicted of murder of Isack s/o Amando Kazuka on 9 November 2016 at a place called Chiwanda Village in Momba District, Songwe Region. His conviction followed a trial presided over by Ms. Z. D. Laizer, Senior Resident Magistrate with extended jurisdiction sitting in the Resident Magistrate's Court of Mbeya at Mbeya. Upon conviction, he was sentenced to the mandatory death sentence by hanging. He is now appealing against that decision.

The case for the prosecution was largely circumstantial reinforced by a cautioned statement allegedly made by the appellant before E2782; Detective Sergeant Roger who testified as PW7 as well as a mobile phone said to have been the property of the deceased allegedly found in the appellant's possession after the deceased's death. The facts resulting into the appellant's prosecution and conviction run as follows: from the appellants' own version of evidence, on 9 November 2016, he bounced on a motorcyclist and stopped him for a ride to Chiwanda Village. After some distance, the motorcycle experienced a mechanical breakdown as a result of an accident. As any other ordinary person could do, the appellant reciprocated by assisting the motorcyclist to drag the motorcycle to Chiwanda. With appellant's assistance, they landed into a mechanic who happened to be Richard Simkanga for repairing the motorcycle. According to the appellant, his assistance ended there and he parted company with the motorcyclist leaving him behind with the mechanic. The prosecution had it that, the appellant spent more time with the deceased before he met his death in his hands on the material night. To prove that assertion, the prosecution produced Jacob Simkaka (PW2) who happened to know the appellant and who was among the persons who went to the place where the body

of the deceased was discovered in a shamba few metres from a road at Katete hamlet. After the deceased's body had been collected by the police, PW2 disclosed to Spydon Siwakwi (PW4), the village chairman that he overheard people claiming that the deceased was seen with Mnyiha (the appellant) the previous day at a pombe shop in the village. That information resulted into the appellant's arrest. Upon interrogation in the office of the chairman, he allegedly confessed to have been responsible for the deceased's death. Besides, upon a body search by E6830 CPL Anthony (PW9) in the office of the Village Chairman, the appellant was allegedly found with two mobile phones; black Tecno and Itel make respectively. The two items were recorded in a certificate of seizure which PW2 signed as a witness and subsequently the two items were admitted in evidence as exhibit PE5 collectively. According to PW2, the wind on the appellant's involvement in the killing of the deceased was made stronger by his sudden disappearance from participating in the game of Bao with him at his place where he had been a regular visitor. He was also allegedly seen taking a different route from what he used prior to the incident. The other evidence on the appellant's involvement came from who PW4, the recipient of the information about a dead body at Katete

hamlet on the night of 9 November 2016. The substance of his evidence was that, like PW2, he also overheard people who gathered at the scene of crime that the deceased had a motorcycle and was seen with Mnyiha the previous day. By the dint of the information, the appellant was arrested and taken to PW4's office where, upon interrogation amidst presence of many people surrounding the office, he allegedly confessed to have killed the deceased. In cross examination, PW4 told the trial court of what he heard from civilians that the deceased had been seen taking a booze at a local brew shop operated by one Daniel Simkanga. His further evidence in cross examination was that, someone Richard Simkanga and PW2 whispered him that the deceased was with the appellant when dragging a motorcycle. He too testified that he was also PW2 hinted to him that the deceased left his motorcycle at Richard's home with the assistance of the appellant. In addition, the prosecution produced Isaka Shitindi (PW6). He claimed to know the appellant and, when the police took him from the village office, he requested his (appellant's) parents' telephone numbers so he could inform them about his arrest. PW6 claimed that he could not access the parents but the appellant's uncle who allegedly told him to stay away from the appellant because he was a thug. In cross

examination, PW6 introduced a story alleging that on a night, the appellant returned home with blood-stained clothes which he claimed to have been a result of an accident and had them washed that night. In effect, PW6's testimony in cross- examination was, but one of character painting a picture connecting the appellant with the murder. Finally, two police officers testified in connection with their involvement in the case. The first was E2782 Detective Sergeant Roger (PW7) to whom the appellant is recorded to have confessed killing the deceased. PW7 tendered a cautioned statement which was objected to by the defence culminating into an inquiry to determine its voluntariness. At the end of the inquiry, the trial court overruled the objection and admitted the cautioned statement as exhibit PE2 before resuming for continuation of the trial in the presence of assessors. The other witness from the police was PW9 who was involved in the appellant's arrest and investigation of the case including search on his body from which two mobile phones were retrieved. He tendered a certificate of seizure which was admitted as exhibit PE4 as well as exhibit PE5. Despite the appellant's defence distancing himself from the murder, the trial court found the prosecution case proved beyond reasonable doubt as mentioned earlier. It is common cause that none of

the witnesses testified to have seen the appellant committing the offence and thus the case was premised on circumstantial evidence based on the principle that the last person to be seen with the deceased is taken to have been his killer. Satisfied that the evidence, particularly through PW2 and PW4 established that the appellant was the last person to be seen with the deceased, the trial court found it proved that the appellant was the person responsible for the murder. In arriving at that finding, the trial court found support from the evidence that the appellant was found with the deceased's phone make Tecno (part of exhibit PE5). It also relied on the confessional statement (exhibit PE2) as well as evidence from PW6 to the effect that the appellant returned to his home in the night with clothes stained with blood insisting to wash them that very night. Against the above, the appellant faulted the trial court's findings and the resultant conviction on seven grounds. At the hearing, Mr. Chapa Alfredy, learned advocate who represented the appellant clustered the grounds into three areas of complaint namely; (1) grounding conviction on weak evidence which did not prove the case against the appellant beyond reasonable doubt; (2) reliance on exhibit PE5 which was not listed as an exhibit during committal proceedings; and (3) acting on the uncorroborated cautioned statement (exhibit PE2).

The respondent Republic was represented by Mr. Joseph Mwakasege, learned State Attorney. In his reply to the submissions made by the learned advocate for the appellant, Mr. Mwakasege raised an issue involving jurisdiction of the trial court to try the case. As the issue had a bearing on the validity of the trial and the decision resulting into the conviction and sentence, we have found it necessary to dispose that issue before delving into the merit of the appeal. The bone of contention in Mr. Mwakasege's concern lies in the transfer order for the trial of the case appearing at page 16A of the record. It is glaring, on 12 June 2020, Utamwa, J. (RIP), acting under section 256A (1) of the Criminal Procedure Act (the CPA), transferred the criminal session case for hearing and determination by Ms. Z. D. Laizer, SRM - with extended jurisdiction. Mr. Mwakasege raised two arguments against that order. First, it did not specify the name of the Resident Magistrate's court the case was to be tried and determined. Secondly, the learned State Attorney contended that, whereas the offence was committed in Momba District within the territorial jurisdiction of the Resident Magistrate's Court of Songwe, the trial of the case was conducted in the Resident Magistrate's Court of Mbeya. It was thus argued that, Ms. Z. D. Laizer, SRM had no jurisdiction to try the case which rendered the trial, the resultant conviction and sentence a

nullity. He reinforced his submission with our decision in Nasra Hamisi Hassan v. Republic [2020] T7CA 1836, TANZLII. However, as it will become apparent later, we do not think that the decision is helpful to support Mr. Mwakasege's contention. Going forward, the learned State Attorney invited the Court to exercise its revisional power under section 4 (2) of the Appellate Jurisdiction Act (the ADA) by nullifying the trial and quashing the conviction with a direction for a retrial before a court of competent jurisdiction. On his part, Mr. Chapa saw nothing faulty in the transfer order and the trial of the case by Z. D. Laizer, SRM - ext. jur. sitting in the Resident Magistrate's Court of Mbeya. Mr. Chapa urged us to be guided by our decision in Gift Sichinga v. Republic, [2024] TZCA 577, TANZLII in which we reiterated the stance in Baraka Leonard v. Republic [2023] TZCA 17430, TANZLII that where the assignment is proper, irregularities in conducting proceedings at wrong venues are curable. Apparently, this decision was taken from the respondent's list of authorities which, Mr. Mwakasege chose not to refer to in his submissions. Having examined the impugned transfer order in the light of the Court's decision in Samson Buruna @ Sibore Buruna v. Republic, Criminal Appeal No. 138 of 2002 (unreported), we are, with respect,

unable to agree with Mr. Mwakasege. To start with, the learned State Attorney had no qualms with the power of assignment exercised by Utamwa, J. who, as far as we are aware, was the judge in charge of the High Court, Mbeya Zone at that time. Neither was it suggested that the trial Senior Resident Magistrate was not invested with extended jurisdiction to try cases otherwise triable by the High Court in pursuance of section 173 (1) of the CPA. That means, the remaining issue involves the venue where the proceedings were conducted which takes us to section 387 of the CPA which stipulates: "/Vo finding ; sentence or order o f any crim inal court shall be set aside merely on the ground that the inquiry, trial or other proceeding in the course o f which it was arrived at or passed, took place in a wrong region, district or other local area ; unless it appears that such error has in fact occasioned a failure o f ju stice." In Buruna, the Court relied on the above section and held that the irregularity in the sitting of the Principal Resident Magistrate with extended jurisdiction in Tarime instead of Mwanza was, but a curable irregularity in so far as there was no evidence that such sitting in a wrong venue occasioned a failure of justice.

The position in the instant appeal is that Ms. Z. D. Laizer, SRM- Ext. Jur. was assigned to try the case but the transfer order did not specify the place where she was to sit. However, it is certain that she sat at Mbeya Resident Magistrate's Court within its territorial jurisdiction regardless of the origin of the case assigned to her under the order of transfer. Be it as it may, much as Ms. Z. D. Laizer, SRM with extended jurisdiction tried the case within the territorial jurisdiction of the Resident Magistrate's Court of Mbeya not specified in the transfer order, the omission, let alone the alleged wrong venue were, but curable irregularities which did not occasion any failure of justice. We accordingly decline the invitation extended to us by Mr. Mwakasege to hold the trial a nullity which takes us to the merit of the appeal. Mr. Chapa began his address with the 3rd complaint in the abridged grounds faulting the trial court for grounding conviction on a repudiated confession which required corroboration. However, in the course of his submissions, counsel abandoned his original argument behind the attack against the cautioned statement having realised that it was in fact wrongly admitted in an Inquiry proceedings in the absence of the lay assessors. Counsel argued that, since the cautioned statement was not admitted in the main trial in the presence of the assessors

neither the contents thereof read in court when the trial resumed, it should be expunged from the record. Not surprisingly, the learned State Attorney conceded the infraction which is quite conspicuous from the record. Accordingly, we sustain the 3rd ground as urged by Mr. Chapa. We only wish to underline the point that the learned trial Senior Resident Magistrate -extended jurisdiction strayed into a serious error in admitting the cautioned statement in Inquiry proceedings meant to determine its voluntariness only. Having overruled the objection by the defence, she ought to have deferred its admission to the main trial in the presence of the assessors and its contents read out to them. Indeed, her address to the assessors in her summing up on the cautioned statement which was alien to them was yet another serious irregularity which dented her finding of guilt against the appellant. Having so said, we expunge exhibit PE2 from the record. Next, Mr. Chapa addressed the Court on the 2n d complaint in relation to the validity of exhibit PE5 involving two mobile phones allegedly found in the appellant's possession. As hinted earlier on, the trial court justified its finding of guilt acting on the evidence that the appellant was found in possession of two mobile phones, one of which was Tecno; the property of the deceased thereby linking him with the

murder. Mr. Chapa argued and supported by Mr. Mwakasege that, reliance on exhibit PE5 in grounding conviction was wrong. This is so because the phones constituting exhibit PE5 were not listed as among the exhibits the prosecution intended to rely upon at the trial during the committal proceedings in conformity with section 246 (2) of the CPA. Relying on our decision in Fitina Reuben and 3 Others v. Republic, [2024] TZCA 979, TANZLII, Mr. Chapa urged the Court to expunge exhibit PE5 from the record. Counsel urged further that in any event, there was no evidence that the said mobile phone belonged to the deceased thereby linking the appellant with his death. Mr. Mwakasege went a step further and invited us to expunge the impugned exhibit along with the certificate of seizure (exhibit PE4) whose contents were not read after being cleared for admission. As rightly submitted by both counsel, it is glaring that the phones constituting exhibit PE5 were not among the exhibits listed to be relied upon at the trial pursuant to section 246 (2) of the CPA. Neither did the prosecution list them during the preliminary hearing or make use of the window provided for under section 289 (2) of the CPA by seeking leave to add them to the already listed exhibits. Consistent with our previous decisions in particular, Fitina Reuben, we expunge exhibit PE5 from the record for being irregularly admitted along with exhibit PE4 since its

contents were not read out in court in line with the Court's decision in Robinson Mwanjisi and 3 Others v. Republic [2003] T.L.R. 218 and many others we need not mention here. It follows thus that, acting on the irregularly admitted exhibits in grounding conviction was improper which had a bearing on the finding of guilt and the conviction. Finally, we shall turn our attention to the 1st ground faulting the trial court for grounding conviction on weak evidence which fell below the required standard in criminal cases. Mr. Chapa's main argument was that, after expunging exhibits PE2, PE4 and PE5 from the record, the remaining evidence is too weak to sustain the appellant's conviction. First and foremost, counsel argued that since the entire evidence before the trial court was circumstantial, it could not have been acted upon unless corroborated by cogent and independent evidence. It was further argued that, the claim that the appellant was seen with the deceased came from PW2 who overheard people at the scene of crime alluding to that claim, hence the appellant's arrest. It was his further submission that, a look at page 33 of the record suggests that PW4 mentioned Richard Simkanga; a mechanic and Daniel Simkanga; a pombe shop attendant as the persons who allegedly saw the appellant with the deceased but the duo were not called as witnesses to corroborate PW4's assertion. Counsel cited our decision in 13

Methuselah Musa v. Republic [2024] TZCA 980, TANZLII on the effect from failure to call a material witness. As a result, it was argued, the appellant's case remained unproven but based on mere suspicion which could not suffice to sustain conviction citing Lucas Daudi Wage v. Republic [2024] TZCA 398, TANZLII. On that account, he invited the Court to find merit in this ground and allow the appeal which will result in quashing conviction and setting the sentence aside. Although Mr. Mwakasege's argument was premised on a different context, that is; whether to order a retrial or not had his argument on lack of jurisdiction carried the day, he conceded to the weakness in the evidence which could not have proved the case beyond reasonable doubt. Having heard counsel on this ground, we share the same view that the appellant's conviction was founded on weak evidence. If anything, his arraignment and prosecution and the resultant conviction was based on suspicion which, on the authority of Mohamed Said Matula v. Republic [1995] T.L.R. 3 and many others, was not sufficient to sustain conviction. As rightly submitted by Mr. Chapa, the claim that the appellant was the last person to be seen with the deceased on the material date was wholly hearsay by PW2 and repeated by PW4 which, as a matter of 14

law required corroboration. If PW4's evidence had anything to go by on what Jacob (PW2) told him, it was incumbent upon the prosecution to call the motorcycle mechanic to whom the appellant allegedly escorted the deceased for repair of his motorcycle. Similarly, the prosecution was bound to summon the pombe shop attendant who it was claimed that he served the appellant with local brew in the company of the deceased. Apparently, both the mechanic and the pombe shop attendant made statements before the police according to PW4 but for no apparent reasons, they were not called to testify although they were listed as witnesses for the prosecution during committal proceedings. It cannot be doubted that these were material witnesses who could have corroborated PW2's claim on what he overheard from people saying that the appellant was seen with the deceased the previous day. On the authority of Azizi Abdallah v. Republic [1997] T.L.R. 71 and Methuselah Musa (supra), failure to summon the two material witnesses dented the prosecution case leaving it unproven. That aside, the testimonies by PW2 and PW4 left much to be desired. It is glaring from PW2's evidence that the information he relayed to PW4 on the involvement of the appellant was from what he overheard from people at the scene of crime that he (the appellant) was

seen with the deceased the previous day. During cross examination, PW4 is recorded to have said: "One o f the people who saw the deceased dragging the motorcycle [was] Richard Simkanga. Jacob is the owner o f the house. Richard and Jacob told me that the deceased was with Mnyiha when dragging the motorcycle. They know him by the name Mnyiha because it was the name they used when playing ' bao'. They told me so on 10th. I heard about the name Mnyiha when I was at the scene at Katete. I did not know that Mnyiha. I had no information o f his being in our village. It's Jacob who told me that the deceased stored his motorcycle at his home. Richard told us that the motorcycle was taken to him by the deceased who was with Mnyihaf'. What emerges from the above is that there are unexplained gaps in what PW2 hinted PW4. Part of PW4's evidence reproduced above suggests that, not only PW2 saw the appellant with the deceased dragging a motorcycle the previous day, but he also knew where the deceased stored his motorcycle in the appellant's company. One wonders, if PW2 had this information beforehand, what was his motive in withholding it to PW4 and instead claiming as he did that the source

of his information was from what he overheard at the scene of crime. The net effect is that the evidence of both PW2 and PW4 are not free from doubts which should not have been acted in grounding conviction in the absence of corroborative evidence. In the event, we allow the appeal and quash conviction and set the sentence aside. The appellant shall be released immediately from custody unless lawfully held therein. DATED at MBEYA this 30th day of November, 2024. L. J. S. MWANDAMBO JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 2n d day of December, 2024 in the presence of the Appellant who appeared in person and Mr. Joseph Mwakasege, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original.