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Judgment

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA f CO RAM: NDIKA. J.A.. LEVIRA, 3.A.. And KENTE, J.A.^ CRIMINAL APPEAL NO. 656 OF 2021 JUMA MUGAYA @ MUGAYA JUMANNE MASEMELE ............. FIRST APPELLANT ALOYCE NYAMBASI NYAKUMU @ DIWANI .................... SECOND APPELLANT NYAKANGARA WAMBURA BIRASO @ JAMES MGAYA MAGIGI @ NYAKANGARA MAGIGI ............ THIRD APPELLANT NYAKANGARA MASEMELE MGAYA @ ROBERT BONIPHACE @ ROBERT BONIPHACE MAGIGI ............. FOURTH APPELLANT SADOCK ALPHONCE IKAKA @ NYABUGIMBI NYAKUMU @ SADOCK ALPHONCE ................. . .................. FIFTH APPELLANT KUMBATA BURUAI < § >BWIRE ALEX GEORGE ..................... SIXTH APPELLANT VERSUS THE REPUBLIC ............ . ......... . ........................ . ............. ...... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma) fSivani, J.1 ) dated the 15th day of January, 2021 in Criminal Sessions Case No. 56 of 2018 JUDGMENT OF THE COURT 24th April & 7th October, 2024 NDIKA. J.A.: This case pertains to an evil of indescribable cruelty and torment that devastated Mgaranjabo Street, Buhare Ward, Musoma Municipality in the small hours of 16th February, 2010. Three adjacent dwelling properties, separately owned by three close relatives, were raided by a group of

assailants who were fully armed with machetes and swords. The assailants massacred seventeen people. Nine individuals were prosecuted for the homicides before the High Court of Tanzania, sitting at Musoma (Siyani, J., as he then was). The six appellants mentioned above were convicted of murder on all seventeen counts, while three other accused persons were acquitted. Consequently, each appellant was sentenced to death in accordance with sections 26 (1) and 197 of the Penal Code, Cap. 16. This is the appellants' joint appeal, which is primarily based on the argument that the convictions are unsupportabie due to irremediable procedural irregularities as well as the inadequacy of the evidence on record in establishing the charges beyond a reasonable doubt. To provide context for this appeal, we commence with the crucial facts of the case, which we believe are not significantly in dispute. On the fateful night, the perpetrators raided three adjacent households, as previously indicated. Approximately 300 paces separated the first residence, which was owned by Kawawa Kinguye, from the second residence, which was occupied by the family of Morris Mgaya. The third residence was a mud and thatch hut providing sanctuary to Dorica Mgaya's family. It was situated approximately 70 paces from Morris Mgaya's

residence. Kawawa Kinguye and Morris Mgaya were cousins, the latter being the offspring of Dorica Mgaya. After the raid, eight of ten individuals who were sleeping in Kawawa Kinguye's home were slain, while six individuals were killed in Morris Mgaya's household, leaving behind one severely injured survivor. Three individuals lost their lives in the third residence, while six others survived the attack. Even though seven individuals survived the assault, only three of them testified at the trial. Nyandora Morris (PW5) and Maximillian Robert (PW18) were two of the individuals who spent the fateful night in Dorica Mgaya's residence. The final individual was PW22 Maria Kawawa Kinguye, who resided in Kawawa Kinguye's residence. It occurred that the perpetrators were not identified by any of the witnesses. The three survivors recounted the harrowing murders in detail, describing how the perpetrators raided the homes and killed the victims in cold blood. PW22 narrated that she and her younger siblings retired to bed after dinner on that fateful evening. Kawawa Kinguye, her father, arrived home slightly later, ate dinner, and retired to bed, unaware of the events that would transpire from 01:30 hours onwards. She adduced further that: "As all family [members] slept, 1 suddenly heard [my father crying in] his room. I woke up and heard him saying \mnaniua nimewakosea nini? [For what

wrong are you killing me?] I then heard a male voice asking my mother as to where [my father's] phone was. My mother [directed] them where the phone was. [...] I kept hearing my father crying painfully. Then ; it was silent. My father was not crying anymore." PW22 testified further that: "Then, I heard a sound in the second room... used by [my] younger brothers Kinguye Kawawa and Nyarukende Kawawa. I heard them crying. I also heard a strange voice asking my younger brothers as to the whereabouts o f my father's phone. I heard Kinguye Kawawa telling them that the phone was in my father's room. Then, I heard [...] machetes stashing them. They were crying painfully. Then , after a few minutes, there was silence." Subsequently, three assailants entered PW22's bedroom, where she was with her four younger sisters. She related that the killers attacked and killed four-year-old Merciana Kawawa, Magdalena Kawawa (13 years old), and Juliana Kawawa (14 years old) in that room before they accosted and gravely injured her. Ultimately, in addition to the three sisters who perished, PW22's father and mother (Kawawa Kinguye and Bhuki Kawawa Kinguye, respectively) were killed, as were their three other children:

Nyanyama Kawawa (11 months old), Nyarukende Kawawa (9 years old) and Kinguye Kawawa (15 years old). Dorica Mgaya's residence was where PW18 Maximillian Robert spent the fateful night, as previously mentioned. He recalled that in the middle of the night, a group of murderers wielding machetes entered the home after they kicked the door in. The bedroom that he shared with Josephat Asophelet was entered by a few of the intruders. He asserts that the perpetrators: "... hit Josephat Asophelet with a [machete] in his neck. Josephat could not speak any word after being cut A lot o f blood [oozed] from [the wound on] his neck and spread in the bed. They turned to me, and I was h it ... with a [machete]. They wanted to cut my neck, but I protected myseif with a hand. The [machete] cut both my hand and neck." Even though PW18 survived the ordeal, he was deeply troubled to discover Josephat Asophelet's dead body in his bed. At that time, Dorica Mgaya and her elderly relative, Umbera Mugaya, were writhing in deep pain in the adjacent bedroom, which they shared with PW5 Nyandora Morris and three other teenage girls. The attackers inflicted numerous cut wounds on Dorica and Umbera, who ultimately succumbed to their injuries, as adduced by PW5.

PW5 also recalled that she steadied herself and visited her father's home (Morris Mgaya's home) later in the morning. She saw the corpses of six members of her family, each of whom had multiple visible lacerations. These included her mother, Nyasimbu Kitego, two younger siblings (Maheri Morris and Mugaya Morris) who were under the age of ten, and three younger sisters (Nyangeta Morris Mdui, who was sixteen years old, Magdalena Morris, aged seven years, and Irene Morris, who was four years old). The seventeen victims' violent deaths were essentially uncontested during the trial. Dr. Joseph Nyamagwira, a Principal Assistant Medical Officer from the Regional Medical Hospital at Musoma, conducted a post mortem examination of all the bodies and issued seventeen post-mortem examination reports (exhibits PI through P17). The reports identified haemorrhage as the common cause of the deaths, due to numerous cut wounds. In addition to the reports being admitted without objection at the preliminary hearing, the memorandum of agreed matters stated that the cause and incident of the fatalities were one of the undisputed facts. Moreover, in addition to the testimonies of PW5, PW18, and PW22, the trial court heard eight other prosecution witnesses whose evidence, in its entirety, corroborated the violent deaths that occurred at the three residences. The said witnesses claimed that they observed the deceased's 6

bodies, which were covered in numerous cut wounds, at the three residences following the incident. The first group of the witnesses comprised five police officers, led by Assistant Superintendent of Police Iradius James Kakoki (PW3), that arrived at the crime sites a few hours after the killings were reported. Assistant Inspector Nelson Sumari (PW7), Assistant Inspector Robert Simkoko (PW10), Detective Constable Javila (PW1), and Detective Constable Mukama (PW17) were the other police officers. In addition to establishing cordons around the crime scenes and initiating police investigations into the murders, these officers were responsible for the collection of the dead bodies from the crime scenes and their transportation to the Regional Referral Hospital at Musoma for examination and preservation. Secondly, PW2 Pili Kinguye (elder sister to Kawawa Kinguye), PW6 Asophelet Siti, and PW8 Victoria Manyoni averred that they hastily arrived at the crime sites that fateful morning upon learning of the murders. They testified that they had observed the mutilated and blood-soaked corpses at the sites. Overall, the evidence of these eight prosecution witnesses is unassailed in respect of the cause and incident of the fatalities. The appellants' involvement in the homicides remains the central issue in this appeal, as it was during the trial.

We previously hinted that none of the three survivors who testified at the trial identified any of the assailants. On that basis, the police investigators who arrived at the crime scene shortly after the incident initially focused on a report submitted to PW1 by Kulwa Kawawa, a survivor in Kawawa Kinguye's home. Kulwa Kawawa claimed that she overheard her father, Kawawa Kinguye, arguing with his alleged assailant, whom he referred to as "Diwani," prior to his death. Hie investigators were unable to make any progress promptly because Diwani was unknown. They subsequently enlisted the assistance of police tracker dog No. 1495, which was transported to the scene by its handler, Station Sergeant Hashim, a few hours following the murders. The prosecution's case was that the tracker dog was exposed to a large stone that the attackers allegedly handled and used to break down the door of the first residence. During this process, the dog picked up a human scent. TTie dog led its handler (Station Sergeant Hashim), PW3, and other police officers on a five-kilometre expedition, during which they traversed forests and valleys, encountered numerous individuals, and crossed numerous obstacles. Upon arriving at Nyegina village at approximately 09:00 hours, the dog charged at a man who was walking while steering a bicycle with a small boy as a pillion passenger. That man was purportedly Aloyce Nyambasi Nyakumu, also known as Diwani, the

second appellant in this case. The dog handler having died before the trial commenced, his statement dated 17th February, 2010 was admitted as exhibit P39 in accordance with section 34B (1) and (2) (a) of the Evidence Act, Cap. 6. It was tendered by Detective Station Sergeant Arnold (PW15). The prosecution postulated that the dog's behaviour indicated the second appellant's presence at the crime sites on the fateful night, based on PW3's testimony and exhibit P39. In other words, the second appellant was the individual whose scent the dog had been following from the late Kawawa Kinguye's residence. The second appellant was promptly apprehended. He was subsequently transported to the Central Police Station in Musoma, where he allegedly confessed to the crime and mentioned Juma Mugaya, also known as Mugaya Jumanne Masemele, the first appellant in this case, as one of his partners-in-crime, while being questioned. Detective Sergeant Obeid (PW16) submitted a cautioned statement as evidence, which he claimed was made by the second appellant (exhibit P40). The first appellant was subsequently traced and arrested by the police. Detective Sergeant Laurent (PW4) testified that he apprehended him, along with another suspect, at the Liga Hotel in Shinyanga on 19th February, 2010. The first appellant was transported to the Central Police Station in Musoma on 25th February, 2010, but he was transferred to the 9

Bunda Police Station two days later to ASP Iradius James Kakoki (PW3). A police contingent, headed by PW3, conducted a search of the first appellant's residence in Bunda. There, they discovered a machete and a sword (exhibit P26), which were suspected to be the murder weapons. The first appellant allegedly made a cautioned statement (exhibit P42) to Detective Constable Deusdedit (PW21) later that day (27th February, 2010), in which he admitted to the murders. Subsequently, DNA testing was conducted on these weapons to determine whether they were associated with the murders. PW7 Assistant Inspector Sumari and Police Officer No. E.8188 Detective Constable Mukama (PW17) testified that Nyakangara Wambura Biraso alias James Mgaya Magigi alias Nyakangara Magigi, the third appellant herein, was arrested on 28th February, 2010 at his home in Buruma village after one of the arrested suspects informed the police about his role in the killings. Two mattresses, a blue shirt, a NOKIA mobile phone handset, and a machete were found in the home. The mattresses, one of which had a blue cover splattered with blood, and the mobile phone handset were believed to have been stolen from the crime scenes during the killings. The shirt was of interest since the third appellant reportedly admitted to wearing it at the scene that fateful night. To prove the confiscation, the prosecution presented a certificate of seizure (exhibit P28)

together with the confiscated articles (exhibit P29). A sample from the blood-stained mattress was then tested for DNA to see if it had anything to do with the killings. Furthermore, on the following day (1s t March, 2010), the third appellant allegedly made a cautioned statement (exhibit P41) to WP Detective Sergeant Zuhura (PW20), admitting to his involvement in the killings. PW7 and PW17 also testified that after apprehending the third appellant on 28th February, 2010, he led them to a home in Buruma village, where they arrested Nyakangara Masemele Mgaya alias Robert Boniphace, also known as Robert Boniphace Magigi, the fourth appellant herein, and his younger brother, Marwa Mau, who was later acquitted at trial. On the next day (1s t March, 2010), the fourth appellant reportedly made a cautioned statement (exhibit P37) to Police Officer No. D.6298 Detective Sergeant Rabiel Tenga (PW14), confessing responsibility for the murders. Turning to Sadock Alphonce Ikaka alias Nyabugimbi Nyakumu, also known as Sadock Alphonce, the fifth appellant, the prosecution claimed, based on the testimony of PW7 and PW17, as well as Superintendent of Police Japhet Kibona (PW9), that he was arrested at his home in Buruma village on 4th March, 2010. A photo album, a machete, and a sword were taken from his residence as potential evidence in the investigations. Furthermore, PW21 informed the trial court that the fifth appellant n

admitted under caution to participating in the killings. His purported statement was admitted as exhibit P43. He appears to have repeated his confession in an extrajudicial statement given on 8th March, 2010 (exhibit P35) before a Justice of the Peace named Swalala Mathias Mathayo (PW11). Police Officer Number: E.5123 Corporal Michael (PW12) and Msafiri Magenda (PW13), a Nyasura, Bunda resident, testified about the arrest of Kumbata Buruai, also known as Bwire Alex George, the sixth appellant in this case. Tlney said that he was arrested by a local militiaman on 14th March, 2010 at Chilinge, Bunda, and then surrendered to Kisorya Police Station on the same day. On the next day, he led a police squad under PW9 to the leased property of his relative, Lucia, at Nyasura, Bunda, where he had allegedly hidden a shirt stolen from the late Dorica Mgaya's home during the killings. The shirt, imprinted with the word "Paradigm" (exhibit P31), was discovered during a search conducted in the presence of PW13. A search order and the related seizure certificate were admitted as Exhibit P30. The search crew then proceeded to the sixth appellant's rented residence in Bunda, where they conducted another search. His landlady, Wilhemina Aron Bwire (PW19), watched the search. A pair of trousers (supposedly belonging to the late Josephat Asophelet) and a summer blue tracksuit (together accepted as exhibit P33) were taken from this property. 12

The search order and accompanying seizure certificate for this exercise were accepted as exhibit P32. Furthermore, PW14 Detective Rabiel Tenga submitted a cautioned statement dated 16th March, 2010 (exhibit P38) attributed to the sixth appellant, indicating that he, too, confessed to the murders during interrogation. It was further established that the sixth appellant repeated the same confession in an extrajudicial statement made on 17th March, 2010 (exhibit P36) before PW11, a Justice of the Peace. A/Insp. Simkoko (PW10) provided an explanation of how he responded to the crime scenes some hours after the incident. He roped off the crime scenes and gathered numerous samples for forensic analysis. These comprised extracts from a mattress, clothing, ceiling board, blood spots, the late Merciana's body, and swabs from three searched homes. The samples were initially delivered to the Government Chemist Laboratory in Mwanza, along with reference samples obtained from the suspects and the deceased's relatives in the form of buccal swabs for DNA analysis. Finally, PW23 Ms. Gloria T. Machuve, an analyst at the Government Chemist Laboratory, transported the samples to the main laboratory in Dar es Salaam for DNA profiling tests by comparing the samples collected from the crime scenes with buccal swabs from the deceased's surviving relatives

and the suspects (including the appellants), as well as several items seized from some of the appellants during investigations. In her forensic DNA profiling laboratory report (exhibit P44), PW23 made the following findings, among others: first, that the DNA profile from a mattress cover (exhibit P29) identified to be the property of the late Kawawa Kinguye but allegedly recovered from the third appellant's home matched the DNA blood samples collected from the bedroom occupied that fateful night by Kawawa Kinguye, his wife Bhuki Kawawa, and child Nyanyama Kawawa, all of whom were killed that night. Secondly, a DNA profiling examination of a sample from the sword (exhibit P26), which was reportedly confiscated from the first appellant's residence, matched the DNA profile of the victims in Morris Mgaya's home. We think that, at this point, we should return to the confessional statements attributed to the appellants and make one observation. What the statements have in common is that the appellants allegedly revealed that the killings were an act of revenge for the death of a certain Fredy Mgaya, who was lynched by a mob in Buhare village in 2005 after the late Kawawa Kinguye had raised a false alarm that Fredy Mgaya and his two companions had stolen a goat. To exact retribution, the appellants and their associates meticulously planned the attacks, assembled executioners and carried out the raids.

In their defence, the appellants denied complicity. For his part, the first appellant, aside from asserting that he was caught in Bunda rather than Shinyanga, denied the cautioned statement attributed to him, blaming his trial and hardships on a police officer he identified as Mpangala, who concocted the case against him. The second appellant interposed an alibi, claiming that he had never visited Mgaranjabo, the site of the killings. Aside from denying being detected by a dog in Nyegina village, he also rejected the cautioned statement attributed to him, claiming that he signed it after being forced to do so by police officers who had beaten him up repeatedly. The third appellant also raised an alibi, claiming to have been at his home on the fateful night. He also denied the confessional statement ascribed to him by the prosecution, claiming that the police forced him to thumbprint a paper whose contents he was unaware of. Under cross- examination, he admitted that the police seized a mattress, a mobile phone handset, and a pair of jeans from his residence, but maintained that he was forced to sign the cautioned statement attributed to him (exhibit P41). The fourth appellant claimed that after being arrested by the police on 23r d February, 2010, he remained in their custody until 27th February, 2010, when, after being brutally beaten up, he reluctantly signed a paper

indicating that he had admitted to the killings. He further complained that, even though he was a child aged sixteen years when he was arrested in 2010, he was treated unfairly as an adult person since then. The fifth appellant's defence story was quite similar. He claimed that after being arrested on 27th February, 2010, he was beaten up by the police, who then compelled him on 5th March, 2010 to sign a document presented at trial as his cautioned statement (exhibit P43). He admitted to giving the police a DNA sample for analysis but insisted that the forensic results did not link him with the murders. More crucially, he stated nothing concerning the veracity of the extrajudicial statement (exhibit P35) that he supposedly made before the Justice of the Peace. The sixth appellant denied being detained on 14th March, 2010, in Bunda, claiming instead that he was apprehended at a place called Sabasaba. He also interposed an alibi, claiming that he was at his home that fateful night. He said that on 17th March, 2010, at Musoma Central Police Station, the police seized his thumb and forced him to sign a paper that had not been read to him. He further denied making an extrajudicial statement to any Justice of the Peace. He stated that the "Paradigm" imprinted shirt (exhibit P31) was not found at his residence. During cross- examination, the sixth appellant agreed to being the author of the right thumbprint appended to the two statements attributed to him. 16

In his judgment, the learned trial Judge agreed with the three assessors he sat with, who reached common guilty findings against the appellants on all counts. Initially, the learned trial Judge rejected the prosecution's claim that the late Kawawa Kinguye left a dying declaration pointing the finger at Diwani (the second appellant), as adduced by PW1. The learned Judge correctly ruled that PWl's testimony pertaining to Kulwa Kawawa, who stated that she heard her deceased father mention Diwani as one of his assailants, was hearsay because Kulwa Kawawa was not brought as a prosecution witness to attest to that fact. The learned trial Judge based part of the appellants' convictions on the confessional statements ascribed to them. To do so, he determined that the repudiated or recanted confessions were not only true but also adequately supported by independent evidence. Furthermore, he accepted the evidence against the first, third, and sixth appellants that they were found in possession of several things that, after DNA profiling analysis, revealed a link with the murder scenes. Based on this evidence, the doctrine of recent possession was applied. The learned Judge evaluated the appellants' alibis but dismissed all of them.

Finally, the learned trial Judge determined that the appellants were culpable for the deaths of seventeen people. Considering the evidence that the deceased were killed in cold blood and in vengeance with machetes and swords during a planned attack, the learned Judge determined that the crimes constituted murder. As a result, he found the appellants guilty of murder on all seventeen counts and sentenced them to death, as previously indicated. Messrs. Constantine Mutalemwa, Vedastus Laurean, Fidelis Mtewele, Kassim S. Gila, Steven E. Makwega, and Akram Adam, all learned advocates, appeared on dock briefs for the first, second, third, fourth, fifth, and sixth appellants, respectively. Messrs. Ofmedy Mtenga and Ignas Mwinuka, learned Senior State Attorneys representing the respondent, were adamantly opposed to the appeal. They were assisted by Messrs. Yese Temba, Christopher Mbile, and Sileo Mazullah, learned State Attorneys. The appellants initially challenged the convictions through individual memoranda of appeal, which resulted in thirteen unified grounds of appeal. However, during the hearing, Mr. Mutalemwa abandoned three grounds. Thus, the appeal was anchored on the following complaints:

That the fourth appellant, who was sixteen years old at the time o f the trial, was tried, convicted, and sentenced to death in 18

contravention o f section 113 (1), (2) and (3) o f the Law o f the Chiid Act, Cap. 13 and section 26 (2) o f the Penai Code, Cap. 16. 2. That the search warrant (exhibit P25) and the DNA Report (exhibit P44) were not read out and explained and one Gloria Machuve (PW23) who tendered exhibit P44 was not fisted as a prosecution witness during committal proceedings. 3. That exhibits PI through P22 were wrongly admitted without clearance with the fifth appeiiant 4. That dog tracing evidence was unreliable due to the absence o f proof by the dog handler o f the experience, training ; performance , achievements, and reliability o f the dog in issue. 5. That the cautioned and extrajudicial statements against the second, third, fourth, fifth and sixth appellants were illegal and inadmissible. 6. That the retracted confessional statements against the appellants were uncorroborated. 7. That searches and seizures o f suspected items admitted at the trial were illegal, rendering the allegedly seized items and the corresponding certificates o f seizure inadmissible and or unreliable. 8. The doctrine o f recent possession was wrongly invoked. 9. That the evidence against the third appeiiant was contradictory and unreliable. 10. That the prosecution case was not proved beyond a reasonable doubt It turned out that during the hearing, Mr, Mtewele did not offer any argument in support of the ninth ground of appeal. Accordingly, we treat it as abandoned.

It is logical to start with the first ground of appeal. Originally, Mr. Gilla attacked the trial court for failing to inquire into the fourth appellant's age in accordance with sections 113 (1), (2), and (3) of the Law of the Child Act ("the LCA") before the trial began on 9th September, 2019. However, he finally centred his case on the validity of the death sentence imposed on the fourth appellant, who was sixteen years old at the time the charged offences were committed. He maintained that the fourth appellant should have been sentenced to be held at the President's pleasure in accordance with Section 26 (2) of the Penal Code, Cap. 16 ("the Penal Code"). In his reply, Mr. Mtenga asserted that the fourth appellant was tried appropriately and in compliance with the law, yet he fully endorsed his learned colleague's argument that the fourth appellant's sentence was unlawful. He referenced Matiko s/o Chandruku @ Kehu v. Republic, Criminal Appeal 139 of 2020 [2022] TZCA 481 [28thJuly, 2022; TanzLII] to support his point. It is common ground that the fourth appellant was a sixteen-year-old minor when the killings occurred. ASP Kakoki (PW3), one of the police officers that apprehended him on 28th February, 2010 (roughly twelve days after the deaths), corroborated this information. Certainly, by 9th September, 2019, when the trial began, the fourth appellant was no longer a child; he was 25 years old. Given this circumstance, section 113 (1) of 20

the LCA, which requires every court of law to inquire into the age of an accused person if it appears that the accused is a child to provide him with applicable statutory protections, did not apply. Regarding the validity of the sentence imposed on the fourth appellant, the Penal Code's section 26(2) states the following: "26. -(2) The sentence o f death shall not be pronounced on or recorded against any person who at the time o f the commission of the offence was under eighteen years o f age, but in, lieu o f the sentence o f death, the court shall sentence that person to be detained during the President's pleasure > and if so sentenced he shad be liable to be detained in such place and under such conditions as the Minister for the time being responsible for legal affairs may direct, and whilst so detained shall be deemed to be in legal custody." [Emphasis added] The above provision expressly prohibits imposition of the sentence of death upon any person who at the time of the commission of the offence was under eighteen years of age. Instead, the court in question must order the accused to be held in custody for as long as the President pleases (see Matiko s/o Chandruku {supra) and Sospeter Nyanza 8l Others v. Republic, Criminal Appeal 289 of 2018 [2022] TZCA 281 [13th May, 2022; TanzLII]). Based on this, we uphold the concurrent submission made by 21

the learned counsel for the parties that the fourth appellant's death sentence was an error in law. Consequently, the first ground of appeal partly succeeds. It is important to note that we will revert to the validity of the sentence imposed on the fourth appellant later in the judgment if we sustain the convictions against him. Mr. Mutalemwa made two claims in support of the second ground of appeal: first, that during committal proceedings, the forensic DNA profiling laboratory report (exhibit P44) and the search order cum certificate of seizure (exhibit P25) were not read out and explained. Secondly, that during the committal stage, Ms. Gloria Machuve (PW23), the person who tendered exhibit P44, was not listed as a prosecution witness. Mr. Mutalemwa argued that the said omissions violated section 246 (2) of the Criminal Procedure Act, Cap. 20 ("the CPA") requiring the committal court to read out and explain to the accused persons the information brought against them as well as the statements or documents containing the substance of the evidence of witnesses whom the prosecution intends to call at the trial. Given that neither the substance of PW23's testimony nor the contents of exhibits P25 and P44 were read out and since no notice was given under section 289 (1) of the CPA for the said

evidence to be produced, he moved us to hold that the evidence was wrongly received and proceed to expunge it from the record. Besides, he urged us to remit the matter for fresh committal proceedings. Mr. Makwega weighed in, referring to pages 55 to 65 of the record of appeal, contending that the learned trial Judge noted that names of witnesses whose statements were read out at the committal stage were not indicated on the record by the magistrate who presided over the committal proceedings. To remedy the omission, the learned Judge halted the trial and remitted the case to the committal court for the statements to be read out and the names of witnesses to be indicated in compliance with section 246 (2) of the CPA. It was contended that the said "recommitment" did not effectively remedy the said omission. In response, Mr. Mtenga stated that the information in exhibits P25 and P44 was read aloud as it was indicated on page 61 of the appeal record and as the committal magistrate had certified it on page 63 of the record of appeal. Drawing from Peter Sagadege Kashuma v. Republic, Criminal Appeal 219 of 2019 [2021] TZCA 754 [14th December, 2021; TanzLII], he contended that the committal magistrate's statement that "section 246 (3) and (4) of the CPA has been complied with" signified that the obligation to read out and elucidate the intended exhibits' content had been fulfilled.

Regarding the admissibility of PW23's testimony, Mr. Mtenga referred to page 59 of the record of appeal showing that the prosecution witness dubbed as the "Chief Government Chemist O fficef was listed as number 54. For him, it did not matter that PW23 was not listed by her name, but her designation so long as the substance of the forensic DNA profiling laboratory report she was to testify on was read out and explained at the committal stage. He cited Edwin Cheleh Swen v. Republic, Criminal Appeal No. 649 of 2021 [2024] TZCA 272 [17th April, 2024; TanzLII] in support of this claim. Mr. Mutalemwa initially agreed in a succinct rejoinder that exhibit P44 was listed, and its contents were read aloud. But he insisted that PW23 ought to have been listed by her name, not by her official description, in accordance with the letter and the spirit of sections 246 (2) and 247 of the CPA. He urged us to hold that she was wrongly allowed to testify at the trial. It is well established that any committal court, under section 246 (2) of the CPA, must read out and explain to the accused the information brought against him as well as any statements or documents that contain the substance of the evidence of witnesses the prosecution plans to call during the trial. The justification for this requirement is to ensure that the accused receives a fair trial by disclosing to him the specifics of the case 24

against him and the type of evidence that will be used to support the allegations made against him. This will enable him to mount a meaningful defence. Therefore, unless the prosecution has given the accused person or his advocate a reasonable notice in writing of their intention to call such a witness, section 289 (1) of the CPA prohibits the calling of a prosecution witness whose statement or the substance of the evidence was not read over during committal proceedings. According to subsection (2) of that section, the notification needs to include the personal information of the intended witness as well as the substance of the evidence he plans to give. The settled standpoint is that evidence that violates sections 246 and 289 of the CPA is not admissible. This is evident in cases such as DPP v. Sharif Mohamed @Athuman and 6 Others {supra), Masamba Musiba @ Musiba Masai Masamba v. Republic, Criminal Appeal No. 138 of 2019 [2021] TZCA 270 [28th June, 2021; TanzLII] and Michael Maige v. Republic, Criminal Appeal No. 222 of 2020 [2023] TZCA 54 [24th February, 2023; TanzLII]. Having scanned the record of appeal at page 61, we uphold Mr. Mtenga's submission that the contents of exhibits P25 and P44 were duly read out during committal proceedings. Besides, we find it significant that the committal magistrate certified at page 63 of the record of appeal that "all the exhibits listed above” , which includes exhibits P25 and P44, had 25

been read over and shown to the accused persons in compliance with the dictates of section 246 (2) of the CPA. It is noteworthy that exhibit P44 was read over, as Mr. Mutalemwa later admitted. Regarding the validity of reception of PW23's testimony, we think, with utmost respect, that Mr. Mutaiemwa's argument made a mountain out of a molehill. We agree with Mr. Mtenga that even though PW23 was not listed by her name, she was fittingly recorded as an "officer" from the Chief Government Chemist Laboratory and appeared as a prosecution witness in that capacity. What was most important in the circumstances of this case is that the substance of her evidence, contained in the forensic DNA profiling laboratory report (exhibit P44), was read out and explained at the committal stage. We should further note that exhibit P44 clearly shows that it is certified by Mr. D.Z. Matata, Acting Chief Government Chemist, in addition to being drawn and signed by PW23 as Head of the Forensic Biology Division (DNA) of the Chief Government Chemist Laboratory. We entertain no doubt that Mr. Matata was equally competent to appear as a prosecution witness on the matter. Perhaps, this fact explains why PW23 was not explicitly listed in her name as a planned prosecution witness since either of the two could testify as a prosecution witness. Accordingly, the second ground of appeal fails.

Mr. Makwega addressed us on the third ground; that exhibits PI through P22 were wrongly admitted without clearance with the fifth appellant during the preliminary hearing. Referring to pages 147 to 154 of the record of appeal, he faulted the learned trial Judge for admitting into evidence the postmortem examination reports (exhibits PI to P17), sketch drawings of the crime scenes (exhibits P18 to P21) and photographs of the scenes of the killings (exhibit P22) without clearance with the learned counsel for the fifth appellant. He argued that the trial court only invited Mr. Ostack Mligo, learned counsel for the first accused, to respond on the admissibility of the said exhibits without hearing other counsel on the matter. Unis, he said, violated section 192 (3) of the CPA governing ascertainment of matters not in dispute (including admission of exhibits) during preliminary hearing. To bolster his submission, he cited Mnyaneza Franswa v. Republic, Criminal Appeal No. 56 of 2004 (unreported) on the preliminary hearing procedure. Thus, he implored us to expurgate exhibits PI to P22. Respectfully, we think Mr. Makwega was splitting hairs. As Mr. Mtenga correctly points out, it is on record that although each of the nine accused persons had his own counsel on dock brief, the said advocates met beforehand and decided that Mr. Mligo would speak for them during the preliminary hearing. Addressing the trial court on that basis, Mr. Mligo

raised no objection to the admissibility of all twenty-two exhibits. He is recorded at pages 147 through 159 of the record of appeal to have notified the trial court every time each exhibit was offered that: "On behalf o f the Defence Team we have no objection." The learned trial Judge admitted and marked each exhibit right then and there. Thereafter, he drew up a memorandum of uncontested facts and got all the accused persons, defence counsel, and prosecuting attorneys to sign it. As a result, we are certain that section 192(3) of the CPA was followed in its entirety. In any case, given that it was common ground that the deceased died violently, the prosecution did not depend so much on the impugned exhibits to prop up its case. Consequently, we hold that the third ground of appeal is without any semblance of merit. Submitting on the fourth ground, Mr. Laurean contested the cogency and reliability of the dog tracing evidence. With verve, he contended that the dog handler's statement (exhibit P39), which contained canine evidence, was incomplete and untrustworthy since the handler had not provided adequate information regarding the experience, training, performance, accomplishments, and reliability of the dog in question. He argued that these particulars would have served as a basis for evaluating the dog's cogency and reliability. The learned counsel criticised the trial Judge's application of the law to the case's facts, even though he agreed 28

with the presiding Judge's exposition of the iaw on canine evidence. He said that it was hard to assess the dog's dependability in the absence of extensive information on its background and accomplishments. On the other hand, Mr. Mtenga contended that exhibit P39 amply demonstrates that the dog in question was properly trained and registered as a police tracker dog, and that its handler had a commensurate level of training and expertise in that domain. He added that the statement made by the dog handler was admitted under section 34B (1) and (2) (a) of the Evidence Act after meeting all the requirements, and as held in Omari Mohamed China & 3 Others v. Republic, Criminal Appeal No. 230 of 2004 [2006] TZCA 32 [31s t January, 2006; TanzLII], it must be considered good evidence. Furthermore, Mr. Mtenga submitted that given that the second appellant admitted at the preliminary hearing the fact as to his manner of arrest as stated by the prosecution, it is undoubted that his arrest occurred after he was spotted by the police dog as stated in the summary of facts. Rejoining, Mr. Laurean disagreed that the second appellant's admission as to his manner of arrest was an acknowledgment that he was picked out by the police dog as alleged.

The learned presiding Judge pointed out that the law on canine evidence was still in its infancy and had not yet been put to the test in our jurisdiction. He correctly noted that while this kind of evidence was very helpful in criminal cases, it might also be more harmful than helpful if it was not thoroughly examined to establish its credibility. Based on this, he reviewed the legal framework governing the admissibility and reliability of such evidence as determined by the courts in Kenya, Uganda, and India: Omondi & Another v. Republic [1967] EA 802; Uganda v. Muheirwe & Another, HCT-05-CR-CN-011 of 2012, High Court of Uganda; Kyakurugaha v. Uganda, Criminal Appeal No. 51 of 2014 [2014] UGCA 49 [18th December, 2014; ULII]; and State of Uttar Pradesh v. Ram Balak & Another (2008) 15 SCC 551. In the end, he adopted the stance that such evidence cannot be accepted and used against an accused individual without first considering three principles: "First, the qualifications o f the dog handier must be property established, in general, and then evidence must be given in relation to the behaviour and skills o f the particular tracker dog. Second, there must be detailed basic evidence about the reliability o f the dog in issue and about the skills and reliability o f the individual dog as a tracker, before evidence can properly be adduced [by the] dog handier about the tracking o f a scent by [the] specific dog. And third,

evidence on the preservation o f the crime scene (where the same is involved) is o f uttermost importance." We believe that the above conspectus of principles accurately explains the law. Although canine evidence may be interpreted incorrectly, courts have accepted it when a strong enough evidentiary basis has been established. This is demonstrated by the work of Freckelton, I., KC, Admissibility and Probative Value o f Expert Evidence o f Tracker Dog Scent Identification , Forensic Research & Criminology International Journal, 2020; 8(1): 52-59. To emphasise our point, we wish to quote with approval what the Supreme Court of Colorado, United States concluded in Brooks v. Colorado, 975 P.2d 1105 (1999): " Therefore , the elements o f a proper foundation include: whether the dog is o f a breed characterised by acute power o f scent; whether the dog has been trained to follow a track by scent; whether the dog was found by experience to be reliable in pursuing human tracks; whether the dog was placed on the trait where the person being tracked was known to have been; and whether the tracking efforts took place within a reasonable time, given the abilities o f the animal." We would also observe that the probative value of canine evidence would inevitably depend on the specific facts of each case by weighing the

dog's skill and reliability along with its behaviour. Scent tracking evidence alone cannot, in any case, establish a conviction; hence, a dog's find would only be deemed verified if it was backed up by independent, corroborative evidence-see, for example, Brooks {supra). We have carefully examined the statement made by the deceased dog handler (exhibit P39) to see if it provides enough supporting evidence for the claimed results of the scent tracking. The statement basically demonstrates that, having received training in dog handling at the Police College in Moshi in 1988, Station Sergeant Hashim was an accomplished and experienced dog handler. He continued to serve in the Police Dog and Horse Unit after completing his training. It was claimed that the dog in question was proficient and experienced in identifying human scent from a crime scene and could follow it for up to six hours across a variety of things or obstacles without losing the scent. Regarding the events of that deadly morning, Station Sergeant Hashim reported that he was contacted at 05:30 hours from his residence and immediately drove to Mgaranjabo Street, arriving at the first house (that of the late Kawawa Kinguye) with the dog not long after. The scenes were already cordoned off at that point. The dog smelt a stone that the murderers were said to have handled and used to break into that house. The dog followed a five-kilometer track in the company of PW3 and other 32

police officials, going past multiple individuals and across valleys and bushes. Upon reaching Nyegina village at approximately 09:00 hours, the dog began to bark and lunge towards the second appellant, connecting him to the scent detected from the initial crime scene. Station Sergeant Hashim described the dog as having a keen sense of smell and being skilled and experienced in following human tracks, even though he did not specifically name the breed of the dog in his statement. He gave a fairly thorough explanation of how the dog detected the scent from the sealed crime site and spent almost three hours following the trail to Nyegina. The fact that PW3's evidence validates exhibit P39 in this regard is noteworthy. We felt that the tracking mission was initiated promptly and completed in a respectable amount of time, considering the handler's statement that the dog could carry the scent for up to six hours. We understand that the learned trial Judge was aware that neither exhibit P39 nor the statements of S/Sgt. Arnold (PW15) and ASP Kakoki (PW3) mentioned the dog's history or previous success rate in any specific detail. However, we are confident that exhibit P39 complies largely with the elements of a proper evidentiary basis in the context of this case, as previously mentioned. Consequently, we hold that the tracker dog evidence on record is substantiated and credible.

Furthermore, we agree with Mr. Mtenga that, considering the second appellant's admission of facts of the case as narrated by the prosecution during the preliminary hearing about the circumstances surrounding his arrest on 16th February, 2016, the learned trial Judge correctly concluded that the appellant was tracked by the police dog and arrested as a result. The Judge reasoned, quite properly, that the uncontested fact about the manner of his arrest is deemed proven under section 192(4) of the CPA because the second appellant signed the memorandum of undisputed matters including that fact. Thus, we conclude that the fourth ground of appeal is without merit. We brush it off. The fifth ground of complaint impeaches the validity and admissibility of the cautioned and extrajudicial statements attributed to the second, third, fourth, fifth, and sixth appellants. Mr. Laurean first argued that the cautioned statement (exhibit P40) made by the second appellant was recorded beyond the allotted four basic hours for questioning a suspect under restraint, as per section 50 (1) (a) of the CPA. That even though the second appellant was taken to the Central Police Station at Musoma between 11:00 and 12:00 hours on 16th February, 2010, after being arrested at 09:00 hours in Nyegina, the alleged statement was recorded more than twenty-four hours later, on 17th February, 2010, beginning at 10:35 hours. He criticised the prosecution for not providing a 34

timeline of the events that prevented the second appellant from being interviewed within the prescribed period. Mr. Mtewele argued on behalf of the third appellant that the cautioned statement (exhibit P41) that was mentioned in relation to the third appellant was invalid since it was made after the deadline had passed. He clarified that the statement was made on 1s t March, 2010, beginning at 13:00 hours, which was many hours after the said appellant's arrest on 28th February, 2010. He added that given that none of the prosecution witnesses testified as to when the third appellant was apprehended, he urged us to uphold his claim in defence that he was arrested on 21s t February, 2010, not 28th February, 2010. It should be noted that Mr. Gilla did not make any arguments against the admissibility or legality of the cautioned statement made by the fourth appellant (exhibit P37). Furthermore, Mr. Makwega chose to drop the complaint challenging the admissibility of exhibit P43, which is the cautioned statement purportedly taken from the fifth appellant, during his submission on that appellant's behalf. Mr. Akram presented two arguments for the sixth appellant. First, he insisted that the extrajudicial statement (exhibit P36) purportedly given by his client was void because it lacked a certification stating that the Justice

of the Peace had read it out to him after he had recorded it. He continued by saying that the statement was worthless since it does not specify whether the sixth appellant offered to appear before the Justice of the Peace knowing that whatever statement he made would be used against him. He urged us to hold that the omissions constituted an indefensible infringement of the Chief Justice's Guidelines, citing Seko Masalu @ Makoye v. Republic, Criminal Appeal No. 482 of 2020 [2024] TZCA 77 [21s t February, 2024; TanzLII], Second, Mr. Akram contended that a similar cautioned statement was recorded following the expiration of the four-hour basic period, purportedly made by the sixth appellant (exhibit P38). While the statement purports to have been given at 08.30 hours on 16th March, 2010, the sixth appellant had been placed under police custody since 14th March, 2010 and had been transported to the Central Police Station in Musoma on 15th March, 2010. Consequently, Mr. Akram moved us to expunge exhibits P36 and P38. Mr. Mtenga began his counterargument referencing Rashid Roman Nyerere v. Republic, Criminal Appeal No. 105 of 2014 [2015] TZCA 520 [3r d September, 2015; TanzLII]. Based on that case, he made the proposition that a trial court is better placed to entertain an objection on admissibility of evidence because it can conduct an inquiry into the relevancy or legality of any piece of evidence in terms of section 145 of the 36

Evidence Act and section 169 of the CPA than an appellate court that only comes to deal with the evidence already on record. Then, he cited Hamis Chacha Wisare v. Republic, Criminal Appeal No. 207 of 2019 [2023] TZCA 17590 [1s t September, 2023; TanzUI] in which this Court, following its earlier decision in Peter Charles Makupila @ Askofu v. Republic, Criminal Appeal No. 21 of 2019 [2021] TZCA 197 [12th May, 2021; TanzLII], held that, as opposed to cautioned statements, there is no requirement that an extrajudicial statement should be read over to the suspect after its completion. Rather, the statement must be signed by the Justice of the Peace. He pleaded with us to reject the challenge against exhibits P35 and P36, the two extrajudicial statements, on that reasoning. While conceding that exhibits P38, P40 and P41 were seemingly recorded out of time, Mr. Mtenga implored us to find them valid and admissible relying on three decisions of the Court: one, Chacha Jeremiah Murimi & Others v. Republic, Criminal Appeal No. 551 of 2015 [2019] TZCA 52 [4th April, 2019; TanzLII] for the rule that the court must consider the complexity of investigations to determine if the delays in interrogations are fatal. Two, Michael Mgowole & Another v. Republic, Criminal Appeal No. 205 of 2017 [2019] TZCA 341 [30th September, 2019; TanzLII]; and Fredy Jason Shelela @ Masoud & Another v. Republic, Criminal Appeal No. 628 of 2020 [2024] TZCA 27 [12th February, 2024; TanzLII] 37

interpreting section 51 of the CPA to the effect that it permits extension of the four hours basic period for a period of eight hours where circumstances reasonably demand it. Besides, subsection (2) of section 50 excludes certain periods from computation of the basic period. Insofar as exhibit P38 was concerned, Mr. Mtenga argued that it could not be recorded much earlier than 16th March, 2010, following the sixth appellant's arrest on 13th March, 2010 at 16:00 hours at Bunda, on the ground that he had to be conveyed to certain places for execution of searches in connection with the investigations. As regards exhibit P40, he said it could not be recorded on 16th February, 2010 given that the second appellant was arrested on that day just a few hours after the killings. On the cautioned statement allegedly made by the third appellant (exhibit P41), he submitted that it was extracted on 1s t March, 2010 after the said appellant was taken to the Forensic Team for collecting a buccal swab for DNA analysis after his arrest the previous day. In his rejoinder, Mr. Laurean maintained that no explanation was given at the trial why the second appellant was not interviewed on the day he was arrested. He urged us to find the contention that he was the first suspect to be arrested meaningless. For his part, Mr. Mtewele associated himself with Mr. Laurean's rejoinder. He insisted that it was wrong for the third appellant's statement to have been recorded on 1s t March, 2010 while 38

he was in police custody since 21s t February, 2010 as he claimed. He reiterated his earlier submission that none of the prosecution witnesses testified as regards the third appellant's date of arrest. To determine the fifth ground of appeal, we, at first, propose to address the legality of the three cautioned statements allegedly made by the second, third, and sixth appellants. The subsequent part will address the legality of the two extrajudicial statements that are attributed to the fifth and sixth appellants, respectively. Certainly, section 50 (1) (a) of the CPA prescribes four hours as the basic period for interviewing a suspect under police restraint commencing from the moment he is arrested. However, section 51 (1) permits extension of such interview for a period of eight hours where circumstances reasonably demand it. Moreover, section 50 (2) of the CPA excludes certain periods from the computation of the basic period. These include the period the suspect is being conveyed to a police station or other place for any purpose connected with the investigation - see, for instance, DPP v. James s/o Msumule @ Jembe, Criminal Appeal No. 397 of 2018 [2020] TZCA 232 [15th May, 2020; TanzLII]. It is settled that non-compliance with the dictates of sections 50 and 51 of the CPA is a fundamental irregularity that may render the cautioned

statement in issue liable to be expunged for having been obtained illegally

see, for instance, Christopher s/o Chengula v. Republic, Criminal Appeal No. 215 of 2010; and Gregory David Maokola @ Mbuga v. Republic, Criminal Appeal No. 238 of 2009 (both unreported). For a start, it is undoubted that the three impugned cautioned statements - exhibits P38, P40 and P41-were, on their face, recorded after the basic period of four hours had expired following the arrests of the second, third and sixth appellants respectively. Mr. Mtenga conceded that much. However, it is on record that while all the statements were objected to on the ground of involuntariness when they were tendered at the trial, it was exhibit P40 only whose validity was, in addition, challenged by the second appellant on the reason that it was recorded out of the prescribed time. Having inquired into the admissibility of exhibit P40 through a trial- within-trial, the learned trial Judge concluded, as shown at page 585 of the record of appeal, as follows: "[I]n this case, the prosecution testimonies indicate that having been arrested on February, 2010 [around 09:00 hours], the accused [the second appellant herein] was taken to the RCO for preliminary interrogation, then to the Forensic [Team] then to Nyegina Village to assist the arrest o f another suspect allegedly mentioned by him and finally to DNA test before being handed over to 40

[PW16 Detective Sergeant Obeid on 17th February, 2010] for the recording o f the statement" Citing Yusuph Masalu @ Jiduvi & Others v. Republic, Criminal Appeal No. 163 of 2017 [2018] TZCA 609 [13th March, 2018; TanzLII], the learned trial Judge found the prosecution's explanation plausible. We fully agree with him. The time the second appellant was conveyed from one place to another place in connection with the ongoing investigations until when he was handed over to PW16 was justifiably excluded under section 50 (2) of the CPA. Thus, the complaint against the admissibility of exhibit P40 fails. We have indicated that, unlike exhibit P40, the admissibility of exhibits P38 and P41 was not assailed at the trial on the reason of contravention of sections 50 and 51 of the CPA. As rightly argued by Mr. Mtenga on the authority of Rashid Roman Nyerere (supra), a trial court is better placed to entertain an objection to admissibility of evidence given that it can inquire into such an issue in terms of section 145 of the Evidence Act and section 169 of the CPA. In Nyerere Nyague v. Republic, Criminal Appeal Case No. 67 of 2010 [2012] TZCA 103 [21s t May, 2012; TanzLII], the Court dealt with a cautioned statement, which, on its face, was recorded out of time but whose admissibility was not contested at the trial.

The Court held that the situation was governed by section 169 of the CPA, which we extract in full: "169 (1) Where, in any proceedings in a court in respect o f an offence , objection is taken to the admission o f evidence on the ground that the evidence was obtained in contravention of, or in consequence o f a contravention of, or o f a failure to compiy with a provision o f this Act or any other law, in relation to a personf the court shall, in its absolute d iscretio n not admit the evidence unless it is, on the balance o f probabilities, satisfied that the admission o f the evidence would specifically and substantially benefit the public interest without unduly prejudicing the rights and freedom o f any person. (2) The matters that a court may have regard to in deciding whether, in proceedings in respect o f any offence, it is satisfied as required by subsection (1) incfude: (a) the seriousness o f the offence in the course o f the investigation o f which the provision was contravened, or was not complied with, the urgency and difficulty o f detecting the offender and the urgency or the need to presen/e evidence o f the fact;

(b) the nature and seriousness o f the contravention or failure; and (c) the extent to which the evidence that was obtained in contravention o f in consequence o f the contravention o f or in consequence o f the failure to comply with the provision o f any law, might have been lawfully obtained; and (d) all the circumstances o f the offence, including the circumstances in which the evidence was obtained. (3) The burden o f satisfying the court that evidence obtained in contravention of, in consequence o f the contravention of, or in consequence o f the failure to comply with a provision o f this Act should be admitted in proceedings ties on the party who seeks to have the evidence admitted. (4) This section is in addition to, and not in derogation of, any other law or rule under which a court may refuse to admit evidence in proceedings. "[Emphasis added] Interpreting section 169 of the CPA, the Court stated that where an objection is raised to the admission of evidence on the ground that it was obtained in violation of the CPA or any other law, the trial court has absolute discretion under subsection (1) to admit or reject the evidence in

question, bearing in mind the considerations shown in subsection (2). It remarked that: "... the admission o f evidence obtained in the alleged contravention o f the CPA is in the absoiute discretion o f the trial court and that before admitting or rejecting such evidence, the parties must contest it, and the trial court must show that it took into account ail the necessary matters into consideration and is satisfied that, if it admits it, it would be for the benefit o f public interest and the accused's rights and freedom are not unduiy prejudiced. ''''[Emphasis added] The Court stated further that: "... there must be a delicate balancing o f the interests o f the public and those o f the accused. It is not therefore correct to take that every apparent contravention o f the provisions o f the CPA automatically leads to the exclusion o f the evidence in question. The decision o f the trial court on such matters can only be faulted if it can be shown, that the admission or rejection o f such evidence was objected to and that it did not properly exercise its judicial discretion, or at all, in rejecting or admitting it." [Emphasis added]

In the above case, the Court concluded that because the appellant did not object to the admissibility of the statement when it was tendered, the trial court and the prosecution were denied the opportunity to consider any objections the appellant might have had under section 169 (2) of the CPA. So, at the appellate stage, the protestation against the admissibility of the statement was deemed untenable. By a parity of reasoning, the belated complaint in this case against the admissibility of exhibits P38 and P41 should fail. Aside from the foregoing, we believe that the unique circumstances of this case are an overriding factor that the trial court would have considered if the admissibility of the two impugned statements had been contested during the trial and an inquiry conducted in accordance with section 169 of the CPA. It is too obvious to argue that this case was complicated. It involved many homicides and featured many suspects spread around the country. Naturally, the complexity of the investigations caused delays in investigations and interrogations. In Chacha Jeremiah Murimi {supra), we excused analogous delays due to the complexity of the investigations. Turning to the admissibility of the extrajudicial statements (exhibits P35 and P36), we should, at the outset, state that any Justice of the Peace recording an extrajudicial statement is obligated to follow the directive 45

contained in "A Guide for Justices o f the Peace"\ssued by the Chief Justice. The Court so held in Japhet Thadei Msigwa v. Republic, Criminal Appeal No. 367 of 2008 (unreported) and reiterated that stance with emphasis in Peter Charles Makupila {supra) and Hamis Chacha Wisare {supra). In the latter two decisions, the Court held that, unlike cautioned statements, a Justice of the Peace is not obligated to read over the statement to the suspect upon its completion. Instead, he is only duty- bound to sign it. Thus, Mr. Akram's submission that exhibit P36 ascribed to the sixth appellant had no certification is misconceived. Equally untenable is Mr. Akram's contention that exhibit P36 is invalid because it does not state if the sixth appellant volunteered to make it to the Justice of the Peace knowing that it could be used as evidence against him. Besides the Justice of the Peace (PW11) testifying that he duly informed the sixth appellant that the statement could be used against him in court, exhibit P36 so indicates at page 1,116 of the record of appeal. In response, the sixth appellant stated in Kiswahili that he was contented with the statement being used as evidence in court: "Iwe sawa. Ninakubaii maeiezo ninayoyaeleza yanaweza kutumika Mahakamani kama ushahidi." Ultimately, we find no substance in the fifth ground of appeal. It stands dismissed.

At this juncture, we believe it would be prudent to address Grounds 7 and 8 separately and later revert to Ground 6. Addressing us on the seventh ground, Mr. Mutalemwa attacked the validity of the search orders and certificates of seizure upon which the police officers allegedly searched certain properties during the investigations and recovered certain items linking the first, third and sixth appellants with the killings. It is manifest from exhibits P25, P28, P30 and P32, he argued, that none of the officers who executed the search orders reported the results thereof to a magistrate. He urged us to find the said omission a ruinous contravention of section 38 (2) of the CPA, rendering the said documents inadmissible and or unreliable. The learned counsel referred us to Ayubu Mfaume Kiboko & Another v. Republic, Criminal Appeal No. 694 of 2020 [2022] TZCA 121 [17th March, 2022; TanzLII] to support his submission. Mr. Mtewele focused his argument on the validity and reliability of exhibit P28. At the forefront, referring to pages 248 to 254 of the record of appeal, he faulted the learned trial Judge for failing to issue an order marking exhibit P28 as having been admitted after he had dismissed an objection to its admissibility. The said exhibit, he claimed, was wrongly read out without having been admitted in evidence. Secondly, the learned counsel contended that, even though the prosecution attempted to show 47

that the said exhibit concerned a search conducted at the third appellant's home at Buruma, the name of the person searched is shown as Nyakangara s/o James. He was, therefore, resolute that the said Nyakangara s/o James was not the third appellant whose name is "Nyakangara Wambura Biraso alias James Mgaya Magigi alias Nyakangara Magigi," as cited on the information. For his part, Mr. Akram assailed exhibits P30 and P32. Beginning with exhibit P30, he contended that given that the white shirt was retrieved from Zenta d/o Robert's house which she had leased out to Lucia d/o Said, it was a serious omission that it was not signed by the said Lucia as the occupier of the house contrary to section 38 (3) of the CPA. As regards exhibit P32, he said the certificate of seizure was undated, hence invalid. In addition, he argued that PW19 Wilhemina Aron Bwire's testimony was contradictory and unreliable on the reason that she said that the search she witnessed at the sixth appellant's home was conducted on 13th May, 2010 in contrast with the prosecution case that it took place much earlier on 15th March, 2010. Mr. Mwinuka presented a counterargument on behalf of the respondent. He initially acknowledged that section 38 (2) of the CPA mandates that any police officer who conducts a search under the authority granted by a police officer in charge of a station must report to a magistrate 48

regarding the issuance of the authority, the grounds for its issuance, and the outcome of the search. He acknowledged that none of the police officers who conducted the contested searches reported to a magistrate as mandated by section 38 (2) of the CPA. However, he cited Director of Public Prosecutions v. Freeman Aikael Mbowe & Another, Criminal Appeal No. 420 of 2018 [2019] TZCA 1 [1s t March, 2019; TanzLII] to support the argument that such a failure is not invariably detrimental. In reference to the inaptness of the name on exhibit P28, the learned State Counsel referred the Court to the testimony of the police officer who conducted the search in question (PW7), who identified the third appellant in the dock as the individual whose residence was the subject of the search, as evidenced by the exhibit. Thus, he implored the Court to ignore the incongruity complained of, contending, on the authority of John Dickson @ Ngongole v. Republic, Criminal Appeal No. 477 of 2021) [2024] TZCA 144 [29th February, 2024; TanzLII], that courts should not be tied to legal technicalities, but substantive justice. Moreover, on the same exhibit, he countered that, even though the learned trial Judge did not state on the record the fact that the said exbibit was, in fact, admitted in evidence, he marked and endorsed it as exhibit P28. He thus urged us to apply the age- old principle that equity treats as done what ought to have been done as reiterated in numerous cases including Salehe Ramadhani Othman @ 49

Salehe Bejja v. Republic, Criminal Appeal No. 532 of 2019 [2021] TZCA 566 [4th October, 2021; TanzLII]. In rounding off his rebuttal, Mr. Mwinuka made three points: first, he referred the Court to the testimony of PW9 who executed the search in issue at Zenta d/o Robert's house. According to him, the said document (exbibit P30) had no space to accommodate the said Lucia's signature after two other witnesses (one of whom was a local leader) and the sixth appellant had signed it. Secondly, he argued that the omission of date and place of search on exhibit P32 was innocuous. And finally, that PW19's apparent confusion as to the date of the impugned search was due to fallibility of human memory', hence excusable, as held by the Court in Ex. G.2434 PC. George v. Republic, Criminal Appeal No. 8 of 2018 [2022] TZCA 609 [6th October, 2022; TanzLII]. It is rational that we begin with Mr. Mtewele's two-pronged attack on the validity and reliability of exhibit P28. We think that his first line of attack that the said document was not admitted in evidence was fully answered by Mr. Mwinuka. Undoubtedly, it is evident from pages 252 to 254 of the record of appeal that after the learned trial Judge had rendered his verdict overruling the defence's objection to the admissibility of the document in issue (exhibit P28), he proceeded to let PW7, who had tendered it, to read out its contents. Admittedly, nowhere on record did he indicate that the 50

document had been admitted and marked accordingly. Nevertheless, it is also manifest at page 1,102 of the record of appeal that the said document was duly marked and endorsed as exhibit P28 and that all learned defence advocates countersigned it. In the circumstances, the oversight complained of is plainly inoffensive. As rightly argued by Mr. Mwinuka, this instance enjoins us to shun technicalities and apply the venerable principle that equity treats as done what ought to have been done, given that for all intents and purposes the learned trial Judge admitted, endorsed and marked the impugned exhibit. Mr. Mtewele's second contention on the alleged inaptness of the name on exhibit P28 is similarly untenable. In the first place, it is not an issue touching or affecting the validity and admissibility of the document. If anything, it is an evidential issue; a question of fact. Secondly, while the third appellant was formally charged as "Nyakangara Wambura Biraso alias James Mgaya Magigi alias Nyakangara Magigi" the police officer who executed the search (PW7) at his home was firm that the name Nyakangara s/o James referred to the third appellant whom he identified in the dock. It would appear to us that the incongruity of the name arose because, according to PW7, at that early stage of arrest, search and investigations, the actual names of the suspects were unknown.

Next, we deal with the alleged invalidity of the search orders and certificates of seizure (exhibits P25, P28, P30 and P32) raised by Mr. Mutalemwa on the reason that section 38 (2) of the CPA was violated. The said provision imposes the following requirement: "Where an authority referred to in subsection (1) is issued\ the police officer concerned shall, as soon as practicable, report the issue o f the authority, the grounds on which it was issued and the resuit o f any search made under it to a magistrate," As explained in Ayubu Mfaume Kiboko {supra) cited by Mr. Mutalemwa, the said provision comes into force when a search is executed by a police officer upon a written authority or rather search order issued to him under subsection (1) of section 38 of the CPA by the police officer in charge of a police station. In that case, the police officer who executed the search is required to report, as soon as practicable, to a magistrate the issue of the authority, the grounds on which it was issued and the result of the search. The rationale for this requirement is not too far to seek. It is intended to control the power of search and seizure to avoid its abuse or misuse given its invasive nature against a suspect's constitutionally guaranteed right to privacy. There is no denying that in the instant case none of the four searches complained of were reported to a magistrate. Mr. Mutalemwa urged us to

hold these omissions a fatal contravention of the law. Pertinently, in Freeman Aikael Mbowe {supra), relied upon by Mr. Mwinuka, the Court took the view that such an omission is not necessarily deleterious: "... section 38 (2) o f the CPA requires an exhibit seized pursuant to a search and seizure to be submitted to the magistrate, failure to do so would not impeach the piece o f documentary evidence because the use o f word 'shall' is not always mandatory but relative and is subjected to section 388 o f the CPA." In the present instance, it was not demonstrated whether the omissions complained of prejudiced the appellants. Invoking the curative provisions of section 388 of the CPA, we ignore the said lapses since they occasioned no failure of justice. We turn to Mr. Akram's criticisms, beginning with his contention that the said Lucia, being the occupier of the searched dwelling house, ought to have signed the impugned exhibit P30. Admittedly, section 38 (3) of the CPA mandates that a receipt or certificate acknowledging seizure of any item following a search be signed by the occupier or owner of the searched premises or his near relative or any other person having control of the premises at the material time. It is vivid from the impugned exhibit, at pages 1,105 and 1,107 of the record of appeal, that Lucia did not sign the

document. Would this omission be fatal? We do not think so. As rightly submitted by Mr. Mwinuka, it is in the evidence that PW9 explained that the said document had no space to accommodate the said Lucia's signature after two other witnesses (one of whom was a local leader) and the sixth appellant had signed it. Given that the shirt retrieved from that home (exhibit P31) was alleged to be in the sixth appellant's constructive possession at the time, it was more significant that he, instead of Lucia, signed the document. Moreover, the fact that search and seizure was witnessed by a local leader as shown by exhibit P31 is, at any rate, weighty. Furthermore, the claim that exhibit P32 is undated is beside the point. We note that, at page 282 of the record of appeal, PW9 acknowledged the omission and urged the trial court to find it curable. He maintained all along that he executed the search on 15th March, 2010. That assertion tallied with the testimony of PW13, an independent witness to the search and seizure. In the premises, we agree with Mr. Mwinuka that the omission complained of is inoffensive; it does not affect the validity or weight of the document. On this basis, we are also persuaded that PW19 must have confused the date on which the search and seizure were effected, saying in cross- examination that they occurred on 13th May, 2010 instead of 15th March, 2010, which she had mentioned in her evidence-in-chief. Given that she testified at the trial on 16th November, 2020, about ten years after the 54

event, the confusion must have arisen from frailty or imperfection of human memory. It is a trifling incongruity that must be ignored-see, for instance, Dickson Elia Nsamba Shapwata and Another v. Republic, Criminal Appeal No. 92 of 2007 [2008] TZCA 17 [30th May, 2008; TanzLJI]. Consequently, we find the seventh ground of appeal lacking in merit. Messrs. Mutalemwa, Mtewele and Akram took turns to submit on Ground 8, faulting the invocation by the trial court of the doctrine of recent possession in support of the prosecution case. Their contention in common was that, given the illegality and unreliability of the searches and seizures, there was no legal basis for application of the said doctrine. Mr. Akram added that PW18 and PW19 failed to identify exhibits P31 and P33 allegedly stolen from the late Dorica Mgaya's home and later recovered from the sixth appellant's home. Conversely, Mr. Mwinuka submitted that, apart from the searches and seizures not being illegal, PW18 identified exhibits P31 and P33 so impeccably as items stolen from the late Dorica Mgaya's home. This evidence, he contended, formed sufficient foundation for the application of the recent possession doctrine as determined by the learned trial Judge in his judgment at pages 1,547 to 1,549 of the record of appeal.

At this juncture, we find it pertinent to reiterate that proof that an accused person was apprehended in possession of a fruit of a crime freshly after it was committed may be used as incriminating evidence against him for any offence, regardless of its severity, in addition to the charge of theft or receiving stolen property. The individual must give a reasonable explanation of such recent possession to rebut that presumption - see, for instance, Mussa Hassan Barie and Another v. Republic, Criminal Appeal No. 292 of 2011 [2012] TZCA 230 [19th September, 2012; TanzLII]; and Flavian Gaspal v. Republic, Criminal Appeal No. 643 of 2022) [2024] TZCA 548 [11th July, 2024; TanzLII]. In our view, what now is eminently known as the doctrine of recent possession can flexibly be applied to cases involving murder committed during or along with robbery or burglary. If the accused individual fails to give a reasonable explanation of his possession of the recently stolen property, the trial court may draw an inference that he stole the property in the circumstances where the owner of the property or another person was murdered at the scene. In this sense, the fact that the individual possessed property recently stolen from a scene of murder amounts to circumstantial evidence to be weighed and considered according to the principles applicable to such genre of proof.

Surely, the erudite trial Judge was alert that the doctrine of recent possession would be applicable if the following are established: one, that the stolen property was found with the accused; two, that it was positively identified to be that of the complainant; three, that it was recently stolen from the complainant; and four, that it constitutes the subject of the charge or the case - see, for instance, Mussa Hassan Barie {supra)) and Joseph Mkumbwa and Another v. Republic, Criminal Appeal No. 94 of 2007 [2011] T7CA 118 [23r d June, 2011; TanzLII]. Considering the foregoing standpoint and given our earlier finding that the questioned searches and seizures were legal and reliable, we reject the appellants' unmitigated argument that the trial court's application of the doctrine of recent possession was founded upon illegally procured evidence. As for the ingredients of the doctrine, we are aware that Mr. Akram only questioned the identification of exhibits P31 and P33. He postulated that PW18 and PW19 failed to identify the said exhibits as items stolen from the late Dorica Mgaya's home during the raid. Having reviewed the evidence on record at pages 612 to 614, we agree with Mr. Mwinuka that PW18 identified exhibits P31 and P33 so faultlessly as items stolen from the late Dorica Mgaya's residence. Briefly,

PW18 testified that on 22n d March, 2010 around 13:00 hours, he went to the Central Police Station at Musoma where he picked out the "Paradigm" emblazoned white shirt (exhibit P31) from the properties allegedly recovered by the police from the suspects. He said he identified it not only because of the "Paradigm" inscription on it but also because it had two small holes caused by sparks from a charcoal iron. He also identified a black pair of trousers (by its peculiar hem) and a summer blue track suit (exhibit P33). He repeated the identification at the trial when the clothing was shown to him, saying that all of it belonged to the late Josephat Asophelet and that it was stolen during the raid. It is also in evidence, as captured at page 627 of the record of appeal, that PW19, the sixth appellant's landlady, identified at the trial the summer blue track suit and black pair of trousers (exhibit P33) as items retrieved from the sixth appellant's home during the search. Before we conclude on the ground at hand, we wish to stress that the learned trial Judge considered and accepted the evidence that the Tanform mattress in blue cover (exhibit P29) was retrieved from the third appellant's home as stated by PW7 Assistant Inspector Nelson Sumari and evidenced by the certificate of seizure (exhibit P28). PW22 Maria Kawawa Kinguye positively identified the said mattress as one of the items stolen from the late Kawawa Kinguye's home during the raid. Similarly, the 58

learned trial Judge also accepted the evidence that exhibits P31 and P33 were recovered from the sixth appellant's possession as testified to by PW9 SP Kibona and attested by certificates of seizure (exhibits P30 and P32). Based on the foregoing evidence, the learned trial Judge found, rightly so, that the third and sixth appellants were found in possession of exhibits P29 and P31 respectively, which constituted items that were stolen during the killings at Mgaranjabo. He noted that both appellants gave no explanation on how those items came into their hands. Eventually, we find no substance in the eighth ground of appeal. We now revert to the disputation in the sixth ground of appeal that the retracted confessional statements were uncorroborated. On the above complaint, Mr. Gilla firstly acknowledged that the learned trial Judge analysed the retracted confessional statements (including exhibit P37) and found them truthful. However, he submitted that the fourth appellant was not linked with the items seized and stated in exhibit P37 and that there was no other independent evidence to corroborate exhibit P37 against the fourth appellant. He faulted the learned trial Judge's finding that PW5 Nyandora Kawawa's evidence corroborated exhibit P37. He referred to Mashimba Dotto @ Lukubanija v. Republic, Criminal Appeal No. 317 of 2013 [2014] TZCA 271 [22n d October, 2014;

TanzLII] for the principle that evidence requiring corroboration cannot corroborate another piece of evidence. Mr. Makwega made a similar argument, relying on Tuwamoi v. Uganda [1967] EA 84. That, as regards the fifth appellant, exhibits P35 and P43, having been repudiated, could not corroborate each other. He was adamant that no other independent evidence was on record to support any of the two statements. Mr. Akram too argued that exhibit PW38 was uncorroborated. He played down the prosecution case that the said statement was supported by the retrieval of the white shirt and black pair of trousers (exhibits P31 and P33 respectively) from the sixth appellant allegedly stolen at the scene of the killings. Messrs. Laurean and Mtewele associated themselves with their learned friends' submissions on the issue at hand. Rebutting, Mr. Mtenga firstly argued that corroborating evidence need not confirm or validate a repudiated or retracted confession in all its details or particulars, but material facts as observed in Director of Public Prosecutions v. Jilala Mahembo Jihusa, Criminal Appeal No. 539 of 2021 [2024] TZCA 38 [14th February, 2024; TanzLII]. He then contended that the statements, which contained many common features, were corroborated by the following: one, the postmortem examination reports

(exhibits PI to P17) and the photographs of the crime scenes (exhibit P22) on the uniform manner and pattern of the killings. Two, the recent possession of items stolen from the crime scenes during the raid. Three, an unbroken chain of events - circumstantial evidence linking the appellants with the killings. Furthermore, Mr. Mtenga asserted that even in the absence of corroboration, the learned presiding Judge may have independently relied on the retracted or repudiated confessions to convict the appellants, if he had forewarned himself regarding the inherent risks of such an action. He based this submission on Muganyizi Peter Michael & Others v. Republic, Criminal Appeal No. 144 of 2020 [2022] TZCA 499 [9th August, 2022; TanzLII]. It bears restating at this point that the impugned cautioned and extrajudicial statements indicate in common that the appellants asserted that they and their associates painstakingly planned the attacks, organised executioners and executed the raids. All this was for exacting revenge against the late Kawawa Kinguye and his immediate family and relatives for causing Fredy Mgaya and his two friends to be lynched by a mob at Buhare village in 2005. It is undoubted that except for the extrajudicial statement made by the fifth appellant (exhibit P35), the rest of the statements were either retracted or repudiated. 61

It is settled, as rightly observed by the learned trial Judge, that a trial court can convict upon a retracted or repudiated confessional statement without corroboration if it warns itself of the danger of acting on such confession and if it is fully satisfied that the confession cannot but be true

see,for instance, Hatibu Gandhi & Others v. Republic [1996] T.L.R. 12 and Mboje Mawe & Others v. Republic, Criminal Appeal No. 86 of 2010 [2011] TZCA 136 [29th June, 2011; TanzLII]. The learned Judge was also alert that, a retracted or repudiated confession would, nonetheless, require, as a matter of practice, corroboration for it to be the sole basis of conviction. Indeed, in AM Salehe Msutu v. Republic [1980] T.L.R. 1 at page 4, this Court, citing Tuwamoi {supra), observed that: "It has long been an established rule o f practice in East Africa, including this country, that a repudiated confession, though as a matter o f law may support a conviction, generally requires as a matter o f prudence corroboration as is normally the case where a confession is retracted ." In our opinion, when corroboration of a retracted or repudiated confession is required, independent proof must confirm, validate, and strengthen the force of the confession in its material details. As we stated in Jilala Mahembo Jihusa {supra), following Fredy Jason Shelela @ Masoud & Another v. Republic, Criminal Appeal No. 628 of 2020 [2024]

T7CA 27 [12th February, 2024; TanzLII], corroborating evidence does not necessarily need to confirm or validate all the details or particulars in the confession, but its essence only. Considering the foregoing standpoint, we propose to examine the questioned statements, beginning with the cautioned statement attributed to the first appellant (exhibit P42). As hinted earlier, the first appellant asserted in that statement that he was tortured while in police custody and that he subsequently signed a purported cautioned statement whose contents were not read over to him. Following an inquiry into the voluntariness of the statement, the trial court found the statement voluntary and admissible. Exhibit P42 presented a comprehensive account by the first appellant of how he and others (including the second, third, fifth, and sixth appellants) coordinated the raids, enlisted the assassins, and brutally murdered the victims that fateful night as retaliation. In addition to outlining the roles played by all individuals in the raids and deaths, the statement discloses that the raids were a follow-up vengeance mission to the initial raid that the first appellant and his associates conducted in 2006 on the residence of the late Kawawa Kinguye. Although two of his relatives were killed in the attack, Kawawa Kinguye survived. Like the learned trial Judge, we find that Kawawa Kinguye's daughter Maria (PW22) 63

corroborated the details of the first failed attempt on her father's life. She said that: 7 remember in 2006, we were also invaded and my unde John Kinguye and my aunt Nyanteka Kinguye died. I also survived that attempt despite being injured in the left eye and on the chest with a machete." The cautioned statement also reveals that a stone was used on both properties to break down the entry, allowing the first appellant and his group of killers to enter the first and second residences. A certain Makiko Mugasa and one "Aloyce" hoisted the stone and hurled it towards the door on both instances. According to the trial court's assessment of the context and weight of the evidence, "Aloyce" alluded to the second appellant. This assertion in the statement tallies with the testimonies of PW5 and PW18 who alluded to the use of stones to break down the doors to raided residences. Further corroboration comes from PW3's testimony and the dog handler's statement (exhibit P39), indicating that the second appellant was the individual whose scent the dog tracked after sniffing it from the stone at the crime scene used to smash the doors open. The DNA profiling test of a sample taken from the sword (exhibit P26) that tallied with the DNA profile of the victims in Morris Mgaya's home validates the first appellant's acknowledgement in his cautioned statement

that the police retrieved a machete and a sword (exhibit P26) from his home ten days after the killings. This is of great significance because it means that this appellant was found in possession of one of the murder weapons. At the trial, he did not provide any explanation about how the weapons came into his possession. Additionally, we concur with Mr. Mtenga's assertion that the postmortem examination reports (exhibits PI to P17) and the photographs of the crime sites (exhibits) substantiate the specifics in the impugned statement regarding the uniform manner and pattern of the executions. The first appellant's own chronicle of the bloodbath they caused is reflected in the mutilated corpses photographed lying on the floor, splattered with blood. We now proceed to the cautioned statement of the second appellant (exhibit P40). This appellant, as previously remarked, also recanted the statement, claiming that it was extracted from him through torture. Nevertheless, the trial court determined that the statement was voluntary and admissible after conducting an inquiry into its voluntariness In essence, exhibit P40 replicates the information provided in exhibit P42 regarding the planning, organisation, and execution of the raids to avenge the lynching of Fredy Mgaya. The second appellant is recorded as

having stated the following, in addition to specifying the role of each assailant in the assaults and killings: 'I 'Around midnight, the assailants and I walked to Kawawa Kinguye's corrugated iron-roofed home. On the way, I had picked a stone, which Makiko Mugasa carried to the home. Makiko smashed open the rear door o f the home using the stone." PW3's testimony and the dog handler's statement (exhibit P39) that the police tracker dog followed his scent after sniffing it from the stone he and Makiko handled, confirm the second appellant's version regarding the use of the stone and his presence at the scenes of the crime. Furthermore, the second appellant acknowledged in the statement that the police locator dog was used to locate and apprehend him: "On 16/2/2010 at 08.30 hours, I was taking my grandchild to a dispensary in Nyegina. On the way, I came across a police officer handling a dog, which charged at me whereupon I was apprehended." Furthermore, we concur with the learned trial Judge's assessment that the second appellant's admission regarding the attack and murder of Kawawa Kinguye and his wife, Bhuki Kawawa, is consistent with the findings of the postmortem examination reports (exhibits PI and P2), To

elucidate the point, we have extracted the second appellant's assertion in the questioned statement in English: "Makiko and I entered the home and walked into Kawawa Kinguye's bedroom, which was at the far end o f the house on the right... Makiko slashed Kawawa with a machete on the head and shoulders. I hacked Kawawa's wife on her back and neck and later I cut her child. Upon realising that I had killed the woman and her child, I walked o u t" While exhibit PI indicates that the body of Kawawa Kinguye bore multiple lacerations on the head and shoulders, exhibit P2 notes that Bhuki Kawawa had multiple cut wounds on the neck and back. Comparable details regarding the planning and execution of the retaliatory raids are revealed in the retracted cautioned statement attributed to the third appellant (exhibit P41). In addition to implicating the first, second, fifth, and sixth appellants, the statement offers a narrative of the events that culminated in the raid on the residence of the late Kawawa Kinguye. The second appellant used a stone to blast open the house's door, and approximately ten assailants entered the residence while the third appellant remained outside keeping watch. The third appellant subsequently entered the residence. He goes on to explain that:

"... the floor was splattered with a lot o f blood. I picked one mattress which was partly stained with blood and took it outside. A few moments later my colleagues came out They said that they had killed six people. Thereafter, we headed to the mud and thatch house." We observe that the third appellant acknowledged in the statement that the police recovered the blood-stained mattress he stole from the crime scene from his residence on 28th February, 2010, in addition to the stone tale in the statement being confirmed, as previously mentioned. Critically, PW23 verified in her uncontested forensic DNA profiling laboratory report (exhibit P44) that the DNA profile from the mattress cover (exhibit P29) corresponded with the DNA blood samples collected from the bedroom occupied by the late Kawawa Kinguye, his deceased wife Bhuki Kawawa, and their child Nyanyama Kawawa on that fateful night. It is important to note that the mattress was confiscated, as affirmed by PW7 Assistant Inspector Nelson Sumari and PW17 Detective Constable Mukama. This was also supported by the certificate of seizure (exhibit P28). Moreover, PW22 Maria Kawawa Kinguye identified exhibit P29 by its peculiar marks at the trial as the mattress her deceased parents used to sleep on. The third appellant's retracted confession that he participated in the killings from the initial stage of hatching the plot to kill the family

members to its execution is substantiated by his unexplained possession of exhibit P29, seized from him approximately twelve days after the killings. The fourth appellant's recanted cautioned statement (exhibit P37) also discloses the same aspects on how the raids were planned and executed. In addition to incriminating the first, third, fifth and sixth appellants, the third appellant acknowledged being at the late Kawawa Kinguye's home, which was broken into using a stone. He stated further that, he subsequently went to the mud and thatch home where he killed "one girl" by slitting her on the neck: "We then proceeded to the mud and thatch hut and broke in. I recall that the Juma Mgaya [the first appellant] was the one who kicked in the door. Many o f us entered. I used a machete to slice and hack one girl. A bag carrying feminine fabric (vitenge) was stolen by us. In addition, I stole two shirts and two pairs o f yellow trousers." [Emphasis added] He also recalled that the third appellant stole a mattress from one of the crime sites: "Nyakangara s/o Wambura [the third appellant] stole a mattress while Nyamagati Mahika stole two matresses."

In dealing with whether the fourth appellant's recanted cautioned statement (exhibit P37) was corroborated, the learned trial Judge reasoned thus: "As far as exhibit P37 is concerned, I am aiso o f the same position that the same contains a true account o f what happened to the victims o f this case as narrated by the $ h accused person [the fourth appellant], His cautioned statement (exhibit P37) is well corroborated by the &h accused person's [the fifth appellant's] extrajudicial statements (exhibit P35) on the planning o f [the] incident o f this case. Both exhibits P35 and P37f show the 5th accused person was involved in the preparatory meetings to terminate Kawawa Kinguye in revenge for the death ofFredy Mgaya." [Emphasis added] We respectfully disagree with the learned trial Judge's assertion that the fourth appellant's retracted confession was corroborated by the extrajudicial statement made by the fifth appellant, which implicated all his co-appellants. The fifth appellant being a co-accused, his confession could not, according to section 33 (2) of the Evidence Act, be the sole basis of a conviction against the fourth appellant - see, for instance, Steven s/o Jason & 2 Others v. Republic, Criminal Appeal No. 79 of 1999 (unreported).

Nonetheless, the narrative presented by the fourth appellant, which, as shown above, describes how the group of murderers broke through the doors of the first two houses by smashing them open with stones, aligns well with the testimonies of PW5 and PW18 as we have explained. Besides, his revelation that the third appellant stole a mattress from the scene is supported by the testimonies of PW7 and PW17 who seized it from the third appellant's home after a search on 28th February, 2010, as evidenced by the certificate of seizure (exhibit P28). As hinted earlier, based on the forensic DNA profiling laboratory report (exhibit P44), the said mattress (exhibit P29) was linked to the first crime site, the late Kawawa Kinguye's home. Furthermore, the fourth appellant's confession is consistent with the testimony of PW5 Nyandora Morris, who stated that the murderers stole clothing, including a bag of feminine fabric (vitenge), from the mud and thatch hut after they had murdered three individuals, two of whom were female. Turning to the fifth appellant, it is important to observe that he was recorded as having confessed to the crimes in his cautioned and extrajudicial statements (exhibits P43 and P35, respectively). Certainly, this appellant did not retract or repudiate his extrajudicial statement, even though he recanted exhibit P43. The storyline that the murders were 71

planned to avenge the death of Fredy Mgaya is revealed in exhibit P43, as it was for the cautioned statements previously discussed. He acknowledged that he was involved in the execution of the premeditated murders in addition to the preparation meetings. Apart from implicating the first, second, and third appellants in that statement, the fifth appellant disclosed that he was one of the assailants who entered the late Kawawa Kinguye's home that fateful night. He recollected that: ’'We found a woman and her spouse with two kids in bed. I gave the man a machete slash. I was the one who initially cut his neck and shoulders. While Nyakangara Wambura [the third appellant] assaulted the woman, Juma Mgaya [the first appellant] gained over and hacked the man." The above narrative is retold in the extrajudicial statement (exhibit P35) that the fifth appellant made to PW11, the Justice of the Peace, implicating the other appellants as well. Crucially, exhibit P35 constitutes unassailable proof of the fifth appellant's confession to the killings given that he did not recant it at the trial. Lastly, we address the sixth appellant's position. We first observe that this appellant retracted both extrajudicial statement (exhibit P36) and the cautioned statement that were imputed to him (exhibit P38). Like the other appellants, he supposedly confessed to having participated in the planning

and execution of the retaliatory murders, as evidenced by exhibit P38. He acknowledged that he slashed a victim in Morris Mgaya's residence and stole a white shirt (exhibit P31) and a black pair of trousers (exhibit P33) from the mud and thatch house. Furthermore, he acknowledged that he led the police to the leased property of his relative Lucia in Nyasura, Bunda, where a shirt bearing the word "Paradigm" (exhibit P31) was discovered. He subsequently directed the police squad to his leased residence in Chilinge, Bunda, where exhibit P33 was recovered. The retracted confession of the sixth appellant is robustly supported by at least three lines of evidence. The initial piece of evidence is his behaviour on 14th March, 2010. He attempted to flee upon perceiving that his arrest was imminent, according to Msafiri Magenda (PW13), who witnessed the arrest. However, he was eventually subdued and apprehended by a certain Mashenene, a local vigilante group member. He lamented at that time that his involvement in the Mgaranjabo murders would result in his death in prison. It is undeniable that this behaviour was not indicative of an innocent individual. Secondly, the retrieval of exhibits P31 and P33 from the sixth appellant's possession following his confession is relevant and reliable because it amounted to a confession leading to discovery. As observed in Mboje Mawe & Others {supra), following Hadija Salum & Another v. 73

Republic, Criminal Appeal Nos. 11 and 32 of 1996 (unreported), a "confession leading to discovery" is sufficient corroborative evidence. This stand is based upon section 31 of the Evidence Act, which provides thus: "31. When any fact is deposed to as discovered in consequence o f information received from a person accused o f any offence in the custody o f a police officer, so much o f such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, is relevant" Alternatively, as previously said, the sixth appellant's possession of exhibits P31 and P33, which had been recently stolen during the Mgaranjabo killings, further substantiated his retracted confession. Upon examining the contested cautioned and extrajudicial statements, we affirm the learned presiding Judge's determination that the statements were truthful and reliable. In addition to being validated as previously discussed, they include extensive details on the formulation and execution of the revenge killings plan. As we observed in Steven s/o Jason ( supra): "The detailed account o f the initial stages o f the plan to kill the deceased, the role played by each o f the appellants in the plan and the sequence o f events leading to the death o f the deceased, could not in our view, be given by a person who was not 74

either a party to the plan or had [no] knowledge o f it " Consequently, we are convinced that the trial court was warranted in determining that the appellants were responsible for the homicides based on the confessional admissions and the corroborative evidence already mentioned. The court thoroughly evaluated the appellants' broad denials of culpability, their assertions of police harassment, and the alibis of the second, third, and sixth appellants. The court eventually dismissed the appellants' defences as they dissipated given the substantiated confessions against them. Thus, we find no merit in the sixth ground of appeal. The final question in ground ten - whether the prosecution case was proven beyond a reasonable doubt - enjoins us first to determine whether the killings were committed with malice aforethought for them to constitute murders contrary to section 196 of the Penal Code. Without any hesitation, we uphold the trial court's affirmative finding on that aspect. Relying on Enock Kipela v. Republic, Criminal Appeal No. 150 of 1994 [1999] TZCA 7 [10th June, 1999; TanzLII], the trial court reasoned that: "In the instant case , the victims were assaulted with machetes and swords and consequently all 17 people died because o f severe ioss o f blood (haemorrhage) following multiple cut wounds in different sensitive parts o f their bodies. Exhibits P l-

17 (Report on Postmortem Examinations) and exhibit P22, which contains 34 still photos taken by A/Insp Simkoko (PW10), show the extent o f the wounds inflicted on the deceased. Such deep cut wounds which extend from the heads, necks and posterior chests o f the victims, [are] an indication o f nothing but an excessive force applied when inflicting the same. In my view, whoever inflicted these kinds o f injuries, intended to terminate the lives o f these people." We see nothing wrong with the above analysis and conclusion. This is so because the evidence shows that the appellants planned the murders, assembled over twenty people, and carried out their heinous plan. They killed the victims by slashing the most susceptible areas of their bodies with swords and machetes. By all accounts, the cold-blooded murders were planned. We uphold the appellants' conviction on all counts as a result. In terms of punishment, we overturn the fourth appellant's death sentence, which was given in violation of section 26 (2) of the Penal Code, as was previously mentioned. In its place, we sentence Nyakangara Masemele Mgaya @ Robert Boniphace @ Robert Boniphace Magigi, the fourth appellant, to be held in custody for as long as the President pleases, at a location and under circumstances that the Minister in charge of legal affairs may specify.

In the end, the joint appeal is dismissed except for our conclusion and modification on the punishment imposed on the fourth appellant. DATED at DAR ES SALAAM this 3r d day of October, 2024. G. A. M. NDIKA JUSTICE OF APPEAL M. C. LEVIRA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL The Judgment delivered this 7th day of October, 2024 in the presence of Mr. Constantine Mutalemwa, Mr. Fidelis Mtewele, Mr. Kassim S. Gila, learned counsels for the 1s t, 3rd4th appellants, Mr. Steven Makwega, learned counsel for the 5th appellant also holding brief for Mr. Laurean and Ms. Akram Adam both learned counsels for the 2n d and 6th appellants and Ms. Naila Chamba, learned State Attorney for the Respondent/Republic via video link from High Court Mwanza is hereby certified as a true copy of the original.

Judgment

That the fourth appellant, who was sixteen years old at the time o f the trial, was tried, convicted, and sentenced to death in 18

statement in issue liable to be expunged for having been obtained illegally

see, for instance, Christopher s/o Chengula v. Republic, Criminal Appeal No. 215 of 2010; and Gregory David Maokola @ Mbuga v. Republic, Criminal Appeal No. 238 of 2009 (both unreported). For a start, it is undoubted that the three impugned cautioned statements - exhibits P38, P40 and P41-were, on their face, recorded after the basic period of four hours had expired following the arrests of the second, third and sixth appellants respectively. Mr. Mtenga conceded that much. However, it is on record that while all the statements were objected to on the ground of involuntariness when they were tendered at the trial, it was exhibit P40 only whose validity was, in addition, challenged by the second appellant on the reason that it was recorded out of the prescribed time. Having inquired into the admissibility of exhibit P40 through a trial- within-trial, the learned trial Judge concluded, as shown at page 585 of the record of appeal, as follows: "[I]n this case, the prosecution testimonies indicate that having been arrested on February, 2010 [around 09:00 hours], the accused [the second appellant herein] was taken to the RCO for preliminary interrogation, then to the Forensic [Team] then to Nyegina Village to assist the arrest o f another suspect allegedly mentioned by him and finally to DNA test before being handed over to 40

see,for instance, Hatibu Gandhi & Others v. Republic [1996] T.L.R. 12 and Mboje Mawe & Others v. Republic, Criminal Appeal No. 86 of 2010 [2011] TZCA 136 [29th June, 2011; TanzLII]. The learned Judge was also alert that, a retracted or repudiated confession would, nonetheless, require, as a matter of practice, corroboration for it to be the sole basis of conviction. Indeed, in AM Salehe Msutu v. Republic [1980] T.L.R. 1 at page 4, this Court, citing Tuwamoi {supra), observed that: "It has long been an established rule o f practice in East Africa, including this country, that a repudiated confession, though as a matter o f law may support a conviction, generally requires as a matter o f prudence corroboration as is normally the case where a confession is retracted ." In our opinion, when corroboration of a retracted or repudiated confession is required, independent proof must confirm, validate, and strengthen the force of the confession in its material details. As we stated in Jilala Mahembo Jihusa {supra), following Fredy Jason Shelela @ Masoud & Another v. Republic, Criminal Appeal No. 628 of 2020 [2024]

Juma Mugaya @ Mugaya Jumanne Masemele and 5 Others vs Republic (Criminal Appeal No. 656 of 2021) [2024] TZCA 966 (7 October 2024)

Judgment

Discussion

Juma Mugaya @ Mugaya Jumanne Masemele and 5 Others vs Republic (Criminal Appeal No. 656 of 2021) [2024] TZCA 966 (7 October 2024)

Judgment

Discussion