Esther Emilian @ Shirima and 2 Others vs Republic (Criminal Appeal No. 581 of 2020) [2024] TZCA 1104 (14 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI f COR AM: WAMBALI. J.A.. KITUSI. J.A. And NGWEMBE. J.A.^ CRIMINAL APPEAL NO. 581 OF 2020 ESTHER EMILIAN @ SHIRIMA ..... FREDY ORGENES MAUGE @ RASI WILFRED AUGUST @ SILA Y O ..... .1 st APPELLANT 2 nd APPELLANT .3 rd APPELLANT VERSUS THE REPUBLIC RESPONDENT (Appeal from the decision of the High Court of Tanzania at Moshi) ( Mazenao. PRM - EXT. JUR.^t dated the 9th day of October, 2020 in Ext. Jur. Criminal Sessions Case No. 58 of 2019 JUDGMENT OF THE COURT J*May & I4 hNovember, 2024 KITUSI, JA.: One Anitha Nicholaus Kimario, met her death on 27th February, 2017 and the prosecution alleged that it was unnatural. Her decomposed body was found buried within sugarcane plantations at Kiyungi suburb within Moshi District, Kilimanjaro Region. This was after she had gone missing for some days, causing panic to her elder sister Everlight Emmanuel Swai (PW4) and her daughter one Nancy Nicholaus Kimaro who was staying at PW4's place in Arusha. A motor vehicle Reg. No. T. 728 CUW, a Toyota Rav 4, which the deceased had been using before her death was also missing.

The appellants were held suspects, charged with murder, convicted and sentenced to death by hanging, before Mazengo, Principal Resident Magistrate (PRM) with Extended Jurisdiction (EJ) sitting at the Court of Resident Magistrate, Moshi at Moshi. What led to their arrest and arraignment, we shall try to tell by stitching together threads of evidence that was recorded at the trial. Somehow the story begins with a disclosure made by one A/Inspector Bernard Kapusi to PW4 that her sister's motor vehicle had been discovered abandoned at Bomang'ombe area. At the time of the trial, A/Inspector Bernard Kapusi had passed on so he could not testify and his statement was tendered by the investigator of the case one D/Sgt. David (PW3), under the provisions of section 34B (2) of the Evidence Act. According to that statement (Ext. P2), A/Inspector Bernard Kapusi, received information that in the abandoned motor vehicle, there were documents linking it with Anitha Nicholaus Kimario (the deceased) as the owner. These pieces of information enabled A/Inspector Bernard Kapusi to get in touch with the deceased's daughter Nancy and then with PW4. Subsequently on 2/3/2017, the body of Anitha was discovered. Dr. Alex Richard Mremi (PW1) who performed the examination on the body on 3/3/2017 had no doubt that the death was unnatural although the state

in which it was found made it difficult for him to make a finding with certainty whether death was caused by strangulation or by a heavy object that hit her chest. Either way, PW1 maintained that the death was a result of unnatural causes. It would appear that, up until this point, the police had not had a real breakthrough as to the culprit(s), although we shall later get to know that a person had been arrested as a suspect. However, very early in the morning of 6/3/2017, the first appellant allegedly in the company of a man known as Hassan Athuman Nyoka turned herself in to A/Inspector Sweet Bertha (PW2) in connection with the murder. PW2 testified that the first appellant wanted to meet the RCO because she had heard that the police were looking for her and she wanted to surrender in connection with Anitha's murder. PW2 put her under arrest and searched her as per police procedure, in the course of which she found tickets for a bus travel from Tanga to Moshi one bearing the first appellant's name and another bearing the name of Hassan Athuman Nyoka, her companion. PW2 then informed the RCO about what had just unfolded to her. The RCO instructed PW2 to hand the suspect over to the office of the OC - CID which was seized with the case, and she passed the first appellant over to A/Inspector Bernard Kapusi, under whose docket the case was being investigated. In turn,

A/Inspector Kapusi instructed PW3 to record a cautioned statement of that suspect; the first appellant. According to PW3, he had the first appellant under him at 7:30 am and recorded her statement from 9:00 am. PW3 sought to tender the first appellant's cautioned statement in evidence. Both at the trial and before us on appeal, admissibility of the first appellant's cautioned statement is being challenged on two grounds, to wit, it was recorded beyond the statutory minimum period of four hours and secondly that it was not made voluntarily. After a trial within a trial, the cautioned statement of the first appellant was admitted as exhibit P3. There was evidence from PW5 and PW6 that the 2n d and 3r d appellants also confessed, an allegation which the alleged makers of the statements disputed by way of cross examinations in the course of testimonies by those prosecution witnesses and in their respective defence, alleging torture. Despite those objections, during trial within trials the trial court resolved them against the appellants and admitted the statements as exhibits P5 and P6 respectively. The prosecution further alleged and adduced evidence that the first appellant traveled to Tanga to seek intervention of supernatural powers from a witch doctor. The evidence was in the form of statements of Juma Mhina @ Lusanja and Hassan Athuman Nyoka, tendered under

section 34B of the Evidence Act, that are being challenged in the 3r d ground of appeal. In defence, the first appellant completely denied being involved in the murder of Anitha Nicholous Kimaro. She stated that on 5/3/2017 she returned home from her daily activities only to be informed by her mother with whom she lived, that the police had been there looking for her. According to her, that was the explanation for her turning up at the police on 6/3/2017 where she was surprised to be held suspect for the murder of her friend Anitha. She further stated that on 7/3/2017 she was forced to sign a statement confessing to the murder but denied making the alleged confession and insisted that it was procured through torture. She also denied being acquainted to the second and third appellants and further denied the allegation that the two were her associates in the commission of the murder, which she is alleged to have facilitated by paying the actual perpetrator. Within the same breath however, the first appellant narrated how she previously came to know the 2n d and 3r d appellants. She said she came to know the 2n d appellant at Machame hospital after he had been involved in a road accident involving her motor vehicle. As for the 3r d appellant, she said she knew him since 2015 in her business ventures

and that it was through a person known as Mandela. She admitted knowing Hassan Athuman Nyoka with whom, she said, she was discussing the business of buying and selling maize. She however disputed the truth of the statements that were tendered as having been made by him and by one Juma Mhina. Juma Mhina @ Lusanja and Hassan Athuman Nyoka could not be available to testify, so their statements were tendered in evidence as exhibits P7 and P8 respectively. As stated, a while ago, these statements were supposedly tendered in support of the prosecution's case that the first appellant travelled to Tanga where she met the two people who helped her meet a medicine man who in turn, gave her charms that were meant to dispel any intention to prosecute her even if she showed up and confessed. The 2n d appellant stated in defence that he was arrested on 2/3/2017 while at Arusha and interrogated about Anitha's death. He denied not only causing her death but even knowing her. He further stated that he was transferred to Moshi on 23/3/2017. He however, denied making any statement to the police in Moshi, despite threats and torture. He also stated that his familiarity with the first appellant was due to her being a co accused in a criminal case registered as PI No. 2 of 2016, pending at Bomang'ombe District Court.

Similarly, the 3r d appellant who said he was arrested on 18/3/2017 within Rombo District denied knowing Anitha who it was alleged he had killed. He was then conveyed to Moshi town where he stayed in a police cell for two days before being taken to what he referred to as a torture chamber, where he met the 1s t and 2n d appellants. On 20/3/2017 the 3r d appellant was shown a statement which he had not made, but yet forced to sign it. He disowned the contents of that statement, including the alleged meeting with the 1s t and 2n d appellants to plot the murder of Anitha. The 1s t and 2n d appellants also denied taking part in any meeting that hatched the idea of killing Anitha. In convicting the first appellant, the trial court relied on her cautioned statement which, the learned trial Principal Resident Magistrate with EJ said, contained such details that would not have been known by any person other than her. She cited the case of Kelvin Mahiga v. Republic Criminal Appeal No. 83 of 2009 (unreported), for the principle that conviction may solely be based on an uncorroborated confession whether retracted or repudiated. The learned Principal Resident Magistrate, with EJ, also took into account the fact deponed by PW2 and PW3 that the first appellant turned herself in and confessed. She cited another case; Republic v. Kisinyila (Criminal Appeal No. 129 of 2002), [2005] TZCA 46 (2 September 2005, TANZLII) to support the

view that the police only need to adduce evidence to prove that the suspect confessed before them, and that it is for the court to assess and determine the evidential value of that confession. She took the same view in relation to the second appellant even though his confession contradicted the medical evidence of PW1 as to the cause of death. To the learned trial Principal Resident Magistrate with EJ, this discrepancy is a sign that the confessional statement was not fabricated by the police who, at the time of recording the said second appellant's alleged confession, had already known the cause of death and they would have easily made it align with the medical report. She also held that death may be proved otherwise than by medical evidence. The conviction of the third appellant was also based on his confession which the trial court considered to be true. In its conclusion, the trial court convicted the 1s t appellant for financing the killing of Anitha, the 2n d appellant for being the actual killer and the 3r d appellant for recruiting the 2n d appellant, to execute the killing. It sentenced them to death as earlier alluded to, hence this appeal. The appellants had previously lodged memoranda of appeal and several supplementary memoranda but immediately before the hearing, and upon informed advice from their learned advocates, they resolved that the final supplementary memorandum of appeal jointly lodged by

the three advocates, would suffice to address their grievances. Therefore, all previous memoranda and their supplementary, were abandoned. To facilitate easy reference, we shall reproduce the last supplementary memorandum of appeal jointly filed by the appellants' respective advocates as already said, consisting of 5 grounds:

1. The trial court erred in law: when offended the provision of sections 246(2) and 289(1) o f the Criminai Procedure Act, Cap. 20 R.E 2019, by convicting the Appellants based on evidence of PW5 (E 9456 S/SGT Zephrine) and PW6 (E8231 D/CPL Vitalis) and Exhibit P.4 (a motor vehicle -Rav 4 -1728 CUW red in colour), while statements and substance o f their evidence, were neither registered nor read in the Committal Proceedings; however, no any reasonable notice in writing was given to the Appellants for the call o f such additional witnesses and evidence during the trial.
2. The trial court erred in law and facts; by convicting the Appellants based on retracted caution statements allegedly made by the appellants, which were uncorroborated, unprocedurally recorded, tendered and received as exhibits in court.
3. The trial court further erred in law and fact: when it offended provision o f Section 34B (2) o f the Evidence Act, Cap. 6 R.E. 2019 by admitting Exhibits P7 and P8 while failing to note that before such statements are admitted in evidence under this provision, all the conditions from provision o f section 34B (2)(a) to (f) must be met, she further erred in convicting the

Appellants basing on such statements (Exh. P-7 and P-8) while the same were uncorroborated. 4. The trial court further erred In law and facts: for failure to scrutinize and evaluate properly the entire evidence, whereas the prosecution evidence was contradictory, incredible, insufficient, unreliable, implausible and had material inconsistent which rendered such evidence highly improbable; hence, the case was not proved beyond reasonable doubts. 5. The trial court further erred in law and fact: in failing to sufficiently consider opinions o f the Assessors and gives reasonable explanation in departing their opinions. Mr. Charles Mwang'anyi learned advocate represented the first appellant and argued the 1s t and 2n d grounds. Mr. Desderius Hekwe learned advocate for the 2n d appellant submitted on the 3r d and 4th grounds of appeal while Mr. Modestus Njau, also learned advocate, representing the 3r d appellant, addressed the 5th ground of appeal. The respondent Republic appeared through Ms. Grace Madikenya, Messrs. Peter Utafu and Philbert Mashurano, all learned State Attorneys. It was Mr. Utafu who took the mantle to argue the respondent's case. In respect to the first ground of appeal, it was argued by Mr. Mwang'anyi that the evidence of PW5 and PW6 was wrongly received because the statements of those witnesses were not read out during the committal proceedings which, he argued, was a violation of section 246

(2) of the Criminal Procedure Act (the CPA). The learned advocate prayed that their testimonies be expunged and that the cautioned statements of the 3r d and 2n d second appellants, exhibits P5 and P6 respectively which were tendered by those witnesses be accordingly expunged too. He cited the case of Musa Ramadhani Magae v. Republic (Criminal Appeal No. 545 of 2921) [2023] TZCA 181 (11 April 2023, TANZLII) to support his position. Mr. Utafu who addressed us in response, conceded to this irregularity, rendering the evidence of PW5 and PW6 liable to being expunged but went further to argue that the cautioned statements were, however, read over, therefore they should survive, and rationalized the point by submitting that the appellants were not prejudiced. For this, Mr. Utafu cited the case of Ester Jofrey Lyimo v. Republic (Criminal Appeal No. 123 of 2020) [2022] TZCA 197 (14 April 2022, TANZLII). As for the motor vehicle (exhibit P4), also tendered in violation of the law, Mr. Utafu joined Mr. Mwang'anyi in submitting that it should be expunged. Without ado, we shall proceed to discount the evidence of PW5 and PW6, because the law requiring statements of the intended witnesses to be read out during committal proceedings, was not complied with. If we must cite a case on this household principle, we

have so held in, Sitta James v. Republic (Criminal Appeal No. 469 of 2020) [2024] T2CA 25 (12 February 2024, TANZLII). The proposition that the cautioned statements which the two witnesses recorded should survive because they were read out, is a position that we previously took in the case of Ester Jofrey (supra) cited to us by Mr. Utafu. Therefore, these two statements will, at the moment, survive and be considered by the Court, later. As for the motor vehicle (exhibit P4) it is also liable to being expunged, although that piece of evidence bears no relevancy to the case such that its expungement is of no consequence. We skip the 2n d ground of appeal and turn to the 3rd ground. The 3rd ground of appeal challenges the admissibility of exhibits P7 and P8. It was Mr. Hekwe who addressed us on this ground of appeal. The learned advocate submitted that section 34B of the Evidence Act, under which these two statements were admitted in evidence, sets out conditions which, he submitted, must be cumulatively met by the prosecution. In clarification, Mr. Hekwe submitted that there was no proof of the allegation by the prosecution, for instance, that Juma Mhina @ Lusanja had died since the prosecution did not tender his death certificate, nor an affidavit to that effect. As regards Hassan Athuman Njoka whose statement was admitted as exhibit P8, Mr. Hekwe submitted that the contention that he could not move from Kilindi District to Moshi to

testify, was not supported by proof of the efforts made by the prosecution to procure him. Earlier in his testimony, PW3 had stated that Hassan Athuman Nyoka had been involved in an accident and broke his leg making his movement by public transport impossible. The learned advocate argued further that even if the statements had been tendered according to the procedure, they still needed corroboration. On the opposite side by the Republic, Mr. Utafu submitted that the prayer to rely on these statements was made early enough as seen at page 157 of the record of appeal showing that there was sufficient notice. He submitted that the statements contained the necessary particulars of the makers and declarations by the recorder. Submitting in relation to proof of Juma Mhina @ Lusanja's death, he said death of a witness need not be proved by medical evidence, and cited the case of Vicent Homo v. Republic (Criminal Appeal No. 337 Of 2017) [2019] TZCA 343 (30 August 2019, TANZLII). Section 34B of the Evidence Act allows the prosecution to tender a statement of a witness who is dead or who, for some other reason/ is unable to attend physically to testify. It provides: - 34B.-(1) In any criminal proceedings where direct orai evidence o f a reievant fact wouid be admissible, a written statement by any person who i s o r may be, a witness shall subject to the

following provisions o f this section ; be admissible in evidence as proof o f the relevant fact contained in it in lieu o f direct oral evidence. (2) A written statement may only be admissible under this section- (a) where its maker is not called as a witness,, if he is dead or unfit by reason o f bodily or mental condition to attend as a witness, or if he is outside Tanzania and it is not reasonably practicable to call him as a witness, or if ail reasonable steps have been taken to procure his attendance but he cannot be found or he cannot attend because he is not identifiable or by operation o f any law he cannot attend; (b) if the statement is, or purports to be, signed by the person who made it; (c) if it contains a declaration by the person making it to the effect that it is true to the best o f his knowledge and belief and that he made the statement knowing that if it were tendered in evidence, he would be liable to prosecution for perjury if he willfully stated in it anything which he knew to be false or did not believe to be true; (d) if, before the hearing at which the statement is to be tendered in evidence, a copy o f the statement is served, by or on behalf o f the party

proposing to tender it, on each o f the other parties to the proceedings; (e) if none o f the other parties, within ten days from the service o f the copy o f the statement, serves a notice on the party proposing or objecting to the statement being so tendered in evidence; (f) if, where the statement is made by a person who cannot read it, it is read to him before he signs it and it is accompanied by a deciaration by the person who read it to the effect that it was so read" Mr. Hekwe had two points against the use of the statements of the two witnesses, as said above. One, there was no death certificate for the witness who is alleged to have died and two, the prosecution did not prove the efforts that were made to procure attendance of the witness who was injured in the accident. The issue is whether death of a witness needs to be proved by a death certificate as argued by Mr. Hekwe or it need not, as argued by the learned State Attorney. What does the law require? The law exempts persons who by reason of death or unfit bodily or mental condition cannot attend as witnesses. There is no legal requirement, in our view, for proof of death of a witness by medical evidence. In our view the decision as to when to

use the statement of a witness who is not available is a question of reason. Even the wording of that provision suggests so as it allows use of statement if it is not reasonably practicable to caii him or if aii reasonable steps have been taken. We note that during the trial, it was common ground that there was reliable information from the Village Executive Officer (VEO) of the village within which Juma Mhina @ Lusanja had been living that Juma Mhina @ Lusanja had died as far back as 2018. In submitting against the insistence of Mr. Mwang'anyi that a death certificate was necessary, Miss Mlenza, State Attorney, was of the view that not everybody processes death certificates in rural set ups. We consider Miss Mlenza's submission to be in consonance with that of Mr. Utafu that proof of death of a witness need not be by medical evidence. The letter by the V.E.O is, in our view, sufficient proof that Juma Mhina @ Lusanja was, in fact, dead. In the end we do not fault the finding that the statements were admissible because the police took reasonable steps to procure the attendance of the witnesses. However, since the statements amount to confessions by the first appellant that she had facilitated the killing of her friend, we agree with Mr. Hekwe that they needed corroboration. However, we shall consider the final relevancy of those statements after dealing with ground 2.

Next, is ground 2 which was argued by Mr. Mwang'anyi faulting the trial court for relying on the cautioned statements of the 1s t, 2n d and 3r d appellants. It was submitted for the appellants that these statements were repudiated and retracted and proceeded to argue that conviction would not lie on these confessions without corroboration. The learned counsel argued further that exhibits P7 and P8, statements that were made by the witnesses who did not appear in court, that is Juma Mhina @ Lusanja and Hassan Athuman Nyoka, also needed corroboration so could not qualify to corroborate other evidence. In considering this ground of appeal, we agree with the learned counsel on the settled law that a repudiated or retracted confession may not ground a conviction unless corroborated. We shall segregate these cautioned statements and discuss them separately, beginning with those of the 2n d and 3rd appellants. The cautioned statements of the 2n d and 3r d appellants were recorded by PW5 and PW6 whose testimonies have been discounted in the course of dealing with ground 1, to uphold the arguments of the appellant's counsel that the statements of these witnesses were not read over during the committal proceedings therefore violated the provisions of section 246 (2) of the CPA. In our view, having discounted the testimonies of PW5 and PW6, the cautioned statements of the 2n d and

3rd appellants are rendered lame with no legs to stand on. This, despite the argument that the statements should survive because they were read over. In our view, every case is decided on its peculiar facts, and that in this case the cautioned statements of the 2n d and 3r d appellants could not mysteriously get into the record of appeal to warrant being referred to, without PW5 and PW6 testifying and being cross examined. For those reasons, we allow ground 2 of appeal in relation to the 2n d and 3rd appellants. We now consider ground 2 in relation to the 1s t appellant. The learned trial Principal Resident Magistrate with EJ was aware of the principle that a conviction may not lie on a repudiated or retracted confession unless corroborated. She demonstrated her awareness of the governing law by citing the case of Hatibu Ghandi & Others v. Republic [1996] T. L. R 12. She reproduced the following paragraph in the case of Hatibu Ghandi (supra), and we consider it relevant: - "A conviction on a retracted uncorroborated confession is competent if the court warns itseif o f the danger o f acting upon such a confession and is fuify satisfied that such confession cannot,, but be true". Thereafter, on the basis of her finding that the contents of the first appellant's cautioned statement could not be anything but true, and

having warned herself, she convicted her. We reproduce the relevant part of her decision: - "Cognizant o f such danger, but fully believing the confessions to be true, I accordingly warn myself and, the accused cannot escape their involvement in the murder facing them" We wish to interrogate the learned trial magistrate's above conclusion that the confession of the 1s t appellant was truthful. We note that according to PW2, the first appellant arrived at the office of the RCO at about 7:30 am. PW3 said he was assigned the duty of recording the first appellant's statement and recorded it from 9:00 am. We agree with the trial court that the statement of the first appellant was recorded within the first four hours of her being in restraint as required by section 50 (1) (a) of the CPA. We shall take a look at what the first appellant allegedly stated so as to gauge the learned Magistrate's view that it was truthful. In that statement (exhibit P3), the first appellant is recorded to have stated that the deceased and her were acquaintances, and partnered in some business ventures. On the basis of these relationships, the deceased knew some of the appellants' illicit ventures including dealing in drugs. At that time, the appellants were facing criminal charges before Bomang'ombe District Court for allegedly being

found in possession of bhang. Somehow the relationship between the deceased and the first appellant had turned sour and the two fell out because of alleged deceit by the first appellant over money belonging to the deceased. As a result, the deceased was aggrieved and had been heard promising to testify against the appellants in the pending criminal case. When the appellants got wind of the impending betrayal, they were worried and this prompted them to hatch a plan to get rid of the Judas, lest she sink their boat in that case. She named the second and third appellants as the people she recruited for the assignment and she paid for the job. She also disclosed the fact the deceased's body was discovered on 2/3/2017 and somebody told her by phone that the police were randomly arresting all of the deceased's friends. When she informed the 2n d appellant about that fact, he told her to flee immediately, so she took a bus to Tanga where she was met by Hassan Athuman Nyoka, whom she had earlier informed about her travel. She sought assistance to consult supernatural powers from people based in Tanga but it did not work, because after hearing that the 1s t appellant had been involved in committing murder, he lied to her that even if she turned herself in to the police, she would escape prosecution. She surrendered.

In our re - evaluation of the evidence, we agree with the learned trial magistrate that the first appellant's confession was nothing but the truth. PW2 who stated that the first appellant was in the company of Hamis Athuman Nyoka, a person from Tanga, when she surrendered, was not contradicted on this fact. PW2 was only cross examined why she did not tender in evidence the items she seized from the 1s t appellant, including the bus tickets, when she searched her. Apart from the cautioned statement carrying details that no one but the first appellant alone could know, we have no reason, and none has been suggested, to disbelieve PW2. This means that there is evidence that the first appellant told PW2 that she was there to confess. There is therefore this oral confession made by the first appellant to PW2 and a written confession by her to PW3. If corroboration of first appellant's cautioned statement would be necessary, which in our view was not, then the oral evidence of PW2 and first appellant's own evidence and conduct would sufficiently corroborate it. As alluded to earlier, during the trial, the 1s t appellant did not contradict PW2 on the fact that she arrived at police accompanied by Hassan Athuman Nyoka, a fact that appears in Exhibit P3. She also stated in her sworn testimony that she came to know the 2n d appellant after he got involved in an accident and got admitted at Machame hospital, a fact that features in Exhibit P3 too.

In fine it is our finding and conclusion that the trial court cannot be faulted for finding the confession of the first appellant to have been true. The 2n d ground of appeal is dismissed as far as it concerns the 1s t appellant. The 4th ground of appeal challenges the decision of the trial court for being based on the prosecution evidence which, it is being alleged, was contradictory, incredible, insufficient, unreliable, implausible and had materiai inconsistent which rendered such evidence highly improbable. On this ground, Mr. Hekwe referred to a number of contradictions which he considered to be grave, such as lack of proof of motive and the amount of money that was involved in the alleged deceit, absence of proof of telephone communication between the appellants as well as proof of the amount that was paid to the killers in advance. He also submitted that the cause of death was not established. The learned counsel referred to the case of Mohamed Said Matula v. Republic [1995] T.L.R 23. For the respondent Republic, Mr. Utafu submitted that the alleged contradictions, if any, were minor. Secondly, he submitted that the best evidence in this case comes from the accused who confessed. In resolving this ground, we take the view that having discounted the cautioned statement of the 2n d appellant, the alleged contradiction

no longer exists. Similarly, having concluded above when dealing with ground 2, that the cautioned statement of the 1s t appellant contains nothing but the truth, we agree with Mr. Utafu again, that the best evidence is that of the confession. It has been stated time and again that the best witness in a criminal trial, is an accused who confesses. In the case of Jumanne Issa & Another, v. Republic (Consolidated Criminal Appeals No. 54 and 55 of 2021) [2022] TZCA 328 (10 June 2022, TANZLII) we reiterated this fact by quoting our earlier decision in Paulo Maduka & 4 Others v. Republic (Criminal Appeal No. 110 of 2007) [2009] TZCA 69 (28 October 2009, TANZLII) and Nyerere Nyague v. Republic (Criminal Appeal No. 67 of 2010) [2012] TZCA 103 (21 May 2012, TANZLII). On the basis of our findings above, we dismiss the 4th ground of appeal. The last ground of appeal is that the trial court did not consider the opinions of the assessors. According to Mr. Njau who addressed us on this ground, after summing up, the assessors indicated doubts as to the guilt of the appellants. Counsel faulted the learned Principal Resident Magistrate with EJ for ignoring their opinions without assigning reasons. With respect, section 298 (2) of the CPA, provides that the judge shall not be bound by the opinions of the assessors. We however agree with Mr. Njau that it is good practice for a judge to give reasons for differing

with assessors' opinions. In this case the trial Principal Resident Magistrate with EJ stated at page 352 of the record of appeal: "Ladies and gentlemen assessors are o f the unanimous view that the prosecution faiied to prove the case against the accused and that they shouid be acquitted. I respectfuiiy part way with their opinions in favour o f the accused persons in the light o f what I have stated herein" In our view the learned Principal Resident Magistrate with EJ assigned reasons by generally referring to the preceding reasoning. In our view when the judgment is read as a whole, the learned Principal Resident Magistrate with EJ gave reasons for her decision in every aspect, and that what is being complained of is more a matter of style than omission. Consequently, we dismiss the 5th ground of appeal for want of merit. Before we conclude, we had promised to discuss the evidential value of exhibits P7 and P8 later. Mr. Hekwe's submission is that there is no corroboration to give those documents the evidential utility required. In our view, having concluded earlier that section 34B of the Evidence Act requires the prosecution to make reasonable efforts to procure attendance of the witnesses under discussion. In the instant case, the

evidence of PW3 that he traveled all the way from Moshi to Tanga to trace Juma Mhina @ Lusanja and Hamis Hassan Nyoka demonstrates the efforts that were made. There is also the undisputed fact referred to earlier that the VEO wrote to the effect that Juma Mhina @ Lusanja had passed on. Considering those pieces of evidence, we are satisfied that in this case the prosecution fulfilled the reasonable legal standard. Further that the contents of exhibits P7 and P8 are consistent with what the 1st appellant stated in her cautioned statement, about travelling to Tanga and meeting the two men. We therefore dismiss the 3r d ground of appeal. There is one untied lose end to deal with. In the 1s t appellant's cautioned statement, which we have held to be true, she implicated the 2n d and 3r d appellants as being partners in the commission of the murder. This is about the only remaining evidence against the 2n d and 3r d appellants. However, we take note that the 1s t appellant is an accomplice and the settled law is that one may not be convicted solely on the evidence of an accomplice. Even where it is found to be true, it is still unsafe to ground a conviction on uncorroborated evidence of an accomplice. See Pascal Kitigwa v. Republic [1994] T.L.R 65. For this reason, there is no proof of the offence charged against the 2n d and 3r d appellants to the required standard.

Finally, for the reasons shown above, we allow the appeal in respect of the 2n d and 3r d appellants and dismiss it in respect of the 1s t appellant in its entirety. The 2n d and 3r d appellants should be set at liberty immediately if not lawfully held for some other cause. DATED at DAR ES SALAAM this 13th day of November, 2024. F. L. K. WAMBALI JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL The Judgment delivered this 14th day of November, 2024 in the presence of Mr. Charles Mwang'anyi, learned Counsel for the 1s t Appellant but also holding brief for Mr. Desderius Hekwe, learned Counsel for the 2n d Appellant, Mr. Modestus Njau, learned Counsel for the 3r d Appellant and Ms. Angela Mshana, learned Senior State Attorney for the Respondent/Republic is hereby certified as a true copy of the original. P. 1 NGWEMBE JUSTICE OF APPEAL DEPUTY REGISTRAR COURT OF APPEAL