Mbuzi Lushona @ Mwangaiki and 2 Others vs Republic (Criminal Appeal No. 159 of 2022) [2024] TZCA 964 (4 October 2024)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: LILA. J.A.. FIKIRINI, 3.A. And KENTE, J J U CRIMINAL APPEAL NO. 159 OF 2022 MBUZI LUSHONA @ MWANGAIKI ........ JETI MWINTURO @ HOJA ................... SHIJA SAIZI @ LUGATA @ MWINTURO ■ 1s t APPELLANT 2n d APPELLANT .3r d APPELLANT VERSUS THE REPUBLIC ....................................... RESPONDENT (Appeal from the Judgment of the Resident Magistrate's Court of 12th August & 4th October, 2024 FIKIRINI. J.A.: After hearing from five (5) prosecution and three (3) defence witnesses and admission in evidence of four (4) exhibits from the prosecution and one (1) from the defence, the trial Magistrate honourable Seraphine Bernard Nsana, Senior Resident Magistrate with extended jurisdiction (SRM, Ext-Juris) was convinced that the prosecution case had been proved beyond reasonable doubt, consequently the appellants were found guilty of murder and convicted. What led to the present appeal is the charge of murder contrary to Tabora, at Tabora) (Nsana. Ext. Jurist dated the 23r d day of March, 2022 in Criminal Session Case No. 20 of 2021 JUDGMENT OF THE COURT

section 196 of the Penal Code, Cap. 16 Revised Laws levelled against the 1s t appellant, Mbuzi Lushona @ Mwangaiki, 2n d appellant, Jeti Mwinturo @ Hoja and the 3r d appellant, Shija Saizi Lugata @ Mwinturo, that on 18th September, 2017, at 22.30 hours at Ugansa Village within Urambo District in Tabora Region did murder one Shija Hindia. They all refuted the allegation. They were convicted and are now appealing against the decision. Before we go into an in-depth determination of the appeal, a summary of what transpired leading to the arrest of the appellants and trial before the Resident Magistrate's Court of Tabora at Tabora (Extended jurisdiction) in Criminal Session Case No. 20 of 2021, after the transfer order dated 7th February, 2022, is essential. As stated earlier, after the case was assigned to honourable Nsana, (SRM, Ext. Juris), the prosecution called a total of five (5) witnesses and tendered four (4) exhibits. In contrast, the defence had three (3) witnesses and one (1) exhibit. The evidence led in court through PW2-Fitina Mtoka, PW3-Elias Mshema, and PW4-Stili Gobego, who were residents of Usinge village, is that PW2 was informed by one of Mwinturo's wives that they had been invaded and attacked. An alarm was raised, and villagers congregated at

Mwinturo's house, where one of his wives lived. Saizi Mwinturo, who had spent a night at his other wife's house, was informed. On arrival at the scene, he forthrightly concluded that the culprits were his sons, as there was an ongoing family feud. This was about the 2n d and 3r d appellants’ complaint that their stepmother, Tekla Omary, was bewitching their families. As for the 2n d appellant, his child was allegedly bewitched, and for the 3r d appellant, the victim was his wife. Both victims of witchcraft were reported dead at the time of the trial. Based on their formed opinion, the 2n d and 3r d appellants are said to have agreed and decided to take revenge. That is how the 1s t appellant came into the picture, as he was said to have been hired allegedly by his co-appellants for TZS 500,000.00 to accomplish the revenge. However, on the fateful night, the 1s t appellant went to Tekla's house, and instead of killing Tekla Omary, the 2n d and 3r d appellants' stepmother, he allegedly mistakenly murdered one Shija India. PWl-William Benedict Kaijage, a doctor at Ulyankulu Health Centre, conducted a post mortem examination on the deceased's body on 19th September 2017. His findings were that the deceased had multiple cut wounds on the head. The wounds were deep to the extent

of failing to measure the depth of the cuts. He recorded his findings in a post mortem report, which was admitted as exhibit PI. The appellants were each arrested on different dates and times and had their cautioned statements, which were the basis of their conviction, recorded by PW5-H. 980 DC Alfa, a Police officer who, in addition to visiting the scene of crime after the incident, arrested all the appellants at different times and locations. In their defence, all the appellants who testified as DW1, DW2 and DW3, respectively, denied committing the offence. At the end of the trial, the trial magistrate, relying on the appellants' cautioned statements, convicted them. She opined that the statements corroborated each other, showing how the plan was conceived and executed. She banked on the case of Hatibu Gandhi & Others v. R, [1996] T. L. R 12, regarding the principle that a retracted uncorroborated confession, if truthful, can corroborate other evidence against the confessor. Adding to that, the trial magistrate relied on the decision in Twaha AM & 5 Others v. R, Criminal Appeal No. 78 of 2004 (unreported) in which it was held that, the best witness is an accused person who confesses his guilt so long as the said confession is free from the remotest taint of suspicion.

Discontent with the decision, the appellants initially lodged their separate memoranda of appeals on 19th September, 2022. However, through their learned advocate, a supplementary memorandum of appeal was lodged, abandoning the previously lodged memoranda of appeals. The highlighted grievances demanding our attention were the following:- one, the trial Magistrate failed to conduct adequate summing up. Two, the cautioned statements (exhibits P2, P3 and P4) relied on to convict the appellants were recorded in contravention of the law. Three, the trial Magistrate convicted and sentenced the appellants based on retracted/repudiated cautioned statements and four, the trial Magistrate erred in law and fact to conclude that the charge had been proved beyond reasonable doubt. During the hearing, Mr. Kanani Aloyce Chombala, learned advocate, appeared for alt the appellants, while Mr. Winlucky Mangowi, learned State Attorney, appeared for the respondent/Republic. Before he proceeded to address us, Mr. Chombala informed the Court that he was dropping the fourth ground of appeal on the proof of the case beyond reasonable doubt, arguing the second and third grounds of appeal jointly, and the first ground on failure to adequately sum up to assessors, separately.

Granted, he proceeded by challenging exhibits P2, P3 and P4, which are the appellant's cautioned statements recorded after their arrest. His borne of contention is that they were wrongly relied upon to ground a conviction: while those statements had, (i) been recorded contrary to the dictates of section 57 (Z) (e) of the CPA, as they did not indicate the time of starting and ending, the requirement which is mandatory and (ii) those statements were repudiated/retracted. Expounding on those cautioned statements, starting with exhibit P3, appearing on page 124 through to page 128 of the record, he argued that, the time when the recording commenced and ended had not been reflected. As for exhibit P4, on page 129, he said the starting time has been indicated, but not the finishing time. Only exhibit P2 complied with the requirement as the starting and ending times of the recording were reflected. According to him, such recording is contrary to what the law requires. The counsel further submitted that, those statements were recorded under section 57 of the CPA, where the proper recording style is that of questions and answers, which did not feature in the three recorded caution statements. The only requirement complied with was certification under section 57 (3) of the CPA, citing the case of Msafiri

Emmanuel Daniel & Another v. R, (Criminal Appeal No. 194 of 2018) [2020] TZCA 1925 (24th December, 2020; TANZLii), in which the Court discouraged Police officers or investigators to act on their whims, the Court stressed compliance with the provisions of the law during their duties and assignments. The learned counsel compared the directive given in the cited case to what transpired and invited us to find that the cautioned statements were illegally obtained. Insisting on compliance with the requirement, he underscored the point that the stipulated procedure had to be followed so as to accord accused persons/ appellants a fair trial. PW5's failure to record the said cautioned statements in the manner prescribed, in Mr. Chombala's view, raised eyebrows, thereby placing his credibility in disrepute. His disquiet stemmed from the fact that PW5 visited the crime scene, interviewed people he met there, and recorded statements. This is found on page 79 of the record. It was Mr. Chombala's misgiving that PWS's failure to comply with the requirements under either section 57 or 58 of the CPA had a reason. According to him, the Police officer wanted to record his own statement with the information gathered at the scene of crime, which could easily be done by recording the statements in a narrative form rather than questions

and answers, implicating the appellants. He thus equated those cautioned statements with those of PW5's own version and not of the appellants. He prayed for all three statements to be expunged from the record in the interest of justice. In addition, the learned counsel queried PW5's motive since the learned counsel was the only officer who recorded all three cautioned statements, even though the appellants were arrested on different dates. He wondered if PW5 was the only officer around at that Police station. Further, in his submission, he challenged the trial court's reliance on the repudiated/retracted cautioned statements without warning itself, especially after the admission of exhibit Dl-PW5's recorded statement. He believed that had the trial Magistrate examined the cautioned statements against exhibit D1 and PW5's oral account, she could not have convicted the appellants. The learned counsel gave a few examples of what the trial court ought to have warned itself about to be: starting with DW1 - Mbuzi Lushona Mwangaiki's account on page 94 of the record, who admitted being arrested on 20th September, 2017; his statement was recorded on 21s t September, 2017, after being tortured but did not remember how or

when he signed the alleged statement. Also, DW1 disputed knowing or murdering the deceased. DW2, likewise, on page 97, indicated to have been arrested on 18th August 2017, and upon arriving at the Police station, he met his father, who was never summoned as a witness. As for his statement, DW2 said it was recorded after being tortured by PW5. DW3 stated that he was arrested in 2018, but his cautioned statement indicated that it was recorded on 26th July, 2018, after exhibit D1 had been recorded. The appellants' counsel wondered how PW5 could predict the arrest of DW3 almost a year later. Faulting the trial Magistrate more, the counsel submitted that none of the three cautioned statements contained any truth. Regrettably, the trial Magistrate only discussed the contents of exhibits P2, P3 and P4 and said nothing about exhibit Dl, which was tendered to discredit PW5's evidence. The learned counsel contended that there was no thorough assessment and evaluation of the above evidence against that of the prosecution. He expected the doubt raised would have been resolved in favour of the appellants. The learned counsel equally questioned why there were no independent witnesses to corroborate the appellants' cautioned statements. He also casted doubt on the prosecution's failure to call

Thekia Omary and Saizi Mwinturo as witnesses, the omission which made PW2, PW3, and PW4's evidence hearsay. On the 1s t ground that summing up to assessors was inadequate, referring us to pages 105 - 111 of the record of appeal (the record), the learned counsel illustrated that, the duty of summing up to assessors includes elaborating on the offence, ingredients to prove it, the evidence adduced and legal principles involved such as common intention, repudiated or retracted statements, the importance of corroboration and its effect on the case and the weight of exhibit Dl, which none was done in the present appeal. Failure to do so had limited assessors' participation in giving an informed opinion. To fortify his submission, he cited to us the cases of Sanda Kishosha @ Karuto & 3 Others v. R, (Criminal Appeal No. 459 of 2021) [2023] TZCA 17581 (30th August, 2023; TANZLii), Shadida Issa @ Rasta & Omar Juma Kondo v. R, (Criminal Appeal No. 125 of 2019) [2021] TZCA 574 (7th October, 2021; TANZLii) and Matho Joshua @ Nyantori v. R, (Criminal Appeal No. 643 of 2020) [2024] TZCA 701 (9th August, 2024; TANZLii). Winding up, he urged us to allow the appeal, quash the conviction, set aside the sentence and order release of the appellants from prison.

Prodded by us as to why did he drop the objection raised on torture, Mr. Chombala's straight forward answer was that there was no evidence as time passed. He also highlighted that being a point of law, dealing with retracted or repudiated statements it can be raised anytime. We poked him further as to what could the trial court do? Once again, he made it clear that, trial within a trial was the proper procedure to follow, but that could not take effect during the defence stage of the case. On corroboration of the cautioned statements by exhibit PI, which is a post mortem report, the learned counsel discounted that evidence as could not sufficiently corroborate the three cautioned statements, assigning the reason that what is contained in exhibit PI varies with PWl's oral evidence. Still, under the Court's probing, learned counsel was invited to read section 169 of the CPA and asked to comment on whether every contravention was fatal. His response after reading the provision was that, the murder charge is a serious offence by its nature, so its investigation must be thoroughly done considering the heavy punishment involved. However, in this case, that could not be done as Thekla Omary, who was alleged to be the targeted person, was never summoned as a witness, the learned counsel stressed.

On the way forward, he urged us to examine and see if there is evidence and then order the record to be remitted for proper summing up and composition of a fresh judgment. Mr. Mangowi, on his part, supported the appeal. He started with the first ground on inadequate summing up to assessors, to which he conceded was the case. Supporting his stance, he referred us to the case of Sanda Kishosha @ Karuto & 3 Others v. R, (supra). On the way forward, he suggested returning the record to the trial court for fresh summing up, and if the trial court finds that there is good evidence, then the appellants may be convicted. Arguing on the three remaining grounds, the learned Counsel contended that, since there was no eye witness to the murder, the evidence relied on was only that of the three cautioned statements. However, those statements fell short of the required standard as they did not show when the 1s t and 3r d appellants were arrested and their statements recorded. It was, therefore, challenging to say if they were recorded in compliance with the law that they should be recorded within four hours unless there is a reason for not doing that. As for exhibit P2, found on pages 121 -124 of the record, the learned counsel submitted that the statement was recorded within time. According to him, the

statement has no problem compared to exhibits P3 and P4. The concern is whether they were recorded within four hours prescribed, to which his answer was negative. To buttress his submission, he cited the case of Ester Jofrey Lyimo v. R, (Criminal Appeal No. 123 of 2020) [2022] TZCA 197 (14th April, 2022; TANZLii), in which the Court resolved the doubt which arose as to when the appellant was arrested in favour of the appellant. The learned counsel urged us to expunge exhibits P3 and P4 from the record. Indeed, that will negatively impact exhibit P2, as it will have no legs to stand on. Admitting that the trial Magistrate relied on the three cautioned statements to corroborate each other, he argued that, once exhibits P3 and P4 are expunged, there would be no evidence to corroborate exhibit P2, which would have implicated the 2n d appellant. On that account, he also hesitated to seek an order for retrial. When engaged on whether every contravention is fatal in light of section 169 of the CPA, the learned counsel conceded that not every contravention of the rules of procedure is fatal. For his part, Mr. Chombala had nothing to rejoin besides reiterating his earlier submissions.

When the first appellate court sits on appeal, it does so in the form of re-hearing, as illustrated in Peter v. Sunday Post (1958) 1 E. A, 424, Vuyo Jack v. R, (Criminal Appeal No. 334 of 2016) [2018] TZCA 322 (13th December, 2018; TANZLii) and Trazias Evarista @ Deusdedit Aron v. R, (Criminal Appeal No. 188 of 2020) [2021] TZCA 697 (29th November, 2021; TANZLii) to name a few. In this instance, we would, therefore, critically and objectively examine the evidence and come up where necessary with our own conclusion. After thoroughly and carefully considering the concurring submissions from the learned counsel for the parties and examining the record of appeal, without doubt, we agree that there are irregularities. Our point of determination is thus whether the pointed out procedural irregularities affect the entire proceedings. We start with the law governing the time for the recording of cautioned statements, this is provided for under section 50 (1), which states "50.- (1) For the purpose o f this Act, the period available for interviewing a person who is in restraint in respect o f an offence is- (a) subject to paragraph (b), the basic period available for interviewing the person, that is to

say, the period o f four hours commencing at the time when he was taken under restraint in respect o f the offence; (b) if the basic period available for interviewing the person is extended under section 51, the basic period as so extended ." From the provision, it is prescribed that the time of four hours starts running from when the suspect has been placed under restraint. Therefore, it is incumbent upon the prosecution to establish the time of arrest, without which it will not be known whether the cautioned statement was recorded within the time prescribed by the law. Since that was not established in the present case, it is difficult to conclude that the cautioned statements were properly procured. See: Ester Jofrey Lyimo (supra). The irregularity also extended to the fact that the 2n d and 3r d appellants cautioned statements were recorded contrary to the dictates of section 57 (2) (a) (d) of the CPA, which requires the statement to be in the form of questions and answers rather than in a narrative form. We agree with Mr. Chombala who, relying on the decision in Msafiri Emmanuel Daniel (supra), argued that, since the provisions were not superfluously added to the Act, the Police officers recording suspects'

cautioned statements under both sections 57 and 58 of the Evidence Act must fully comply with the requirement. Section 57 of the CPA mainly directs the recording of the interview of the suspect, which must be in the form of questions and answers. This is different from the application of section 58 of the CPA, which becomes applicable when a suspect wishes to record his own statement. However, the requirements stipulated under the said provisions had to be complied with cumulatively and mandatorily in both instances. The Court underscored the importance of adhering to the mandatory provisions outlined in the CPA regarding the recording of cautioned statements. In the case of Msafiri Emmanuel Daniel (supra), the Court highlighted that any deviations from the established protocols, particularly sections 50 and 51 of the CPA, render such statements inadmissible. Reinforcing on following the obligatory procedures, the Court in Juma Nyamakinana & Another v. R, Criminal Appeal No. 133 of 2011, whereby the case of Mussa Mustapha Kusa & Another v. R, Criminal Appeal No. 126 of 2011 (both unreported), emphasized that non-compliance with sections 57 and 58 of the CPA not only

compromises the integrity of the investigation but also violates the rights of the accused. All the decisions referred above clearly indicate that the validity of cautioned statements hinges on strict adherence to the provided procedural requirements, thereby reinforcing the necessity for law enforcement officers to conduct investigations with diligence and respect for legal standards. In essence, any failure to comply with these provisions not only undermines the evidence gathered but may also jeopardize the prosecution’s case, ultimately leading to a miscarriage of justice. The Court's stance serves as a crucial reminder to maintain rigorous standards in the investigative process, ensuring that all procedures are followed to uphold the rule of law. In the latter case of the Court held that:- "We should quickly point out that these elaborate provisions were not superfluously added to the Act They had a specific purpose. Having been enacted after the inclusion o f the basic right o f equality before the law, in our constitutionthey were purposely added as procedural guarantees to this right For this reason, thereforef police officers recording suspects cautioned statements under both

sections 57 and 58 of the Act have an unavoidable statutory duty to comply fully with these provisions. They cannot, at the risk of rendering the statement invalid, choose and pick which requirements to comply with and which ones to disregard The conditions stipulated in these two sections are cumulative and the duty imposed is mandatory/' [Emphasis added] No other option has been specified under the said provision, nor did PW5 explain why he opted for a narrative statement rather than questions and answers. If there were any questions and answers in the three cautioned statements, they were found on the first pages on whether the suspect was ready to record his cautioned statement or not, as shown on page 121 for exhibit P2, page 125 for exhibit P3 and page 129 for exhibit P4. Otherwise, the rest of the recorded statement was not in the form of questions and answers, as required by the quoted provision. The cautioned statement recorded under section 57 of the CPA must adhere to the requirements. For ease of reference, the provision is reproduced below:- "57 (1) A police officer who interviews a person for the purpose o f ascertaining whether the

person has committed an offence shall, unless it is in ail circumstances impracticable to do so, cause the interview to be recorded. (2) Where a person who is being interviewed by a police officer for the purpose o f ascertaining whether he has committed an offence makes, during the interview, either orally or in writing, a confession relating to an offence, the police officer shall make or cause to be made, while the interview is being held or as soon as practicable after the interview is completed, a record in writing, setting out- (a) so far as it is practicable to do so, the questions asked of the person during the interview and the answers given by the person to those q u e s t io n s [Emphasis added] Unless the investigator, which the record does not show, asked the suspect to tell his story, then the investigator may proceed to record the suspect's story without interrogating him. And essentially, that would have been done under section 58 (4) of the CPA and not under section 57, which strictly requires questions and answers. Failure by the police officer to comply with the requirements cannot be glossed over. All three cautioned statements suffer this glitch. See: Seko Samwel v. R,

(Criminal Appeal No. 7 of 2003) [2005] TZCA 101 (11th March, 2005; TANZLii). We have also read the provision to fathom if the interpretation made by the learned State Attorney is what the phrase "so far as it is practicable" meant. Our understanding of the phrase is that it was about recording the statement right after an interview and not allowing the investigator or giving the option to record the cautioned statement in the form of questions and answers or narrative. The learned State Attorney's explanation on page 83 of the record is misconstrued even though the appellants were cautioned as required under section 57 (2) (d) of the CPA. Adding salt to a fresh wound, is non-compliance with the provision of section 57 (2) (e) of the CPA, which requires the time when the interview commenced and completed to be reflected. The provisions states thus: (e) the times when the intervie w was commenced and completed; and..." Both learned counsel acknowledged non-compliance with the provisions. While there was no problem with the 2n d appellant's cautioned statement, exhibit P2, as both starting and ending times were

shown, exhibits P3 and P4 had issues. In exhibit P3, the 3r d appellant's cautioned statement found on pages 125 - 128 of the record, had neither the starting nor completion time. While that is not the case in exhibit P4, the 1s t appellant's cautioned statement on pages 129 -132 of the record, indicates the starting time but no ending time. Consistent with our previous decision in Msafiri Emmanuel Daniel (supra), we wish to observe that the provisions of sections 57 and 58 of the CPA were not superfluously added to the Act. They were illustratively coined placing a strict obligation on the Police officers to strictly comply with all the requirements, of which in the present appeal, exhibits P3 and P4 specifically fell short of compliance with section 57 (2) (e) of the CPA. Being the first appellate court and knowing that in terms of section 169 of the CPA, not every infraction excludes evidence presumably illegally obtained, we examined the provision to see if it could be applied to salvage the three cautioned statements in the circumstances of this case. The provision provides as follows:- "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 comply with a provision o f this Act or any other law, in relation to a person , the court shaii, in its absolute discretion , not admit the evidence uniess 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 of any offence, it is satisfied as required by subsection (1) include- (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 of detecting the offender and the urgency or the need to preserve evidence o f the fact; (b) the nature and seriousness o f the contravention or failure; (c) the extent to which the evidence that was obtained in contravention o f in consequence of 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 lies on the party who seeks to have the evidence admitted. (4) The court shall, prior to exclusion o f any evidence in accordance with subsection (1), be satisfied that the failure or breach was significant and substantial and that its exclusion is necessary for the fairness o f the proceedings. (5) Where the court excludes evidence on the basis o f this provision it shall explain the reasons for such decision." It is a settled position that, a cautioned statement recorded out of time and/or without compliance with the mandatory requirement is inadmissible in evidence. See: Abdallah Kulukuni v. R, (Criminal Appeal No. 131 of 2016) [2017] TZCA 262 (12th July, 2017; TANZLii) and Mohamed Juma @ Mpakama v. R, (Criminal Appeal No. 385 of 2017)

[2019] TZCA 518 (27th February, 2019; TANZLii) and Ester Jofrey Lyimo (supra). The Court has nevertheless been applying section 169 of the CPA to rescue the inadmissible cautioned statements, especially those recorded outside the prescribed time, in situations where it is possible. A good example is the case of Chacha Jeremiah Murimi & Others v. R, (Criminal Appeal No. 551 of 2015) [2019] TZCA 52 (4th April, 2019; TANZLii). Despite making a finding that the cautioned statement was recorded out of time, the Court stated that the irregularity could not invalidate the cautioned statement considering the dictates of section 169 of the CPA by going beyond and considering that the case attracted high public interest and its investigation was complicated. Above all, the information contained in those statements was relevant to the fact in issue. In addition, the Court examined how the appellant was prejudiced for failing to record the statements within the four hours prescribed. Considering the observations in Chacha Jeremiah Murimi (supra) and comparing them with the circumstances existing in the present appeal that is, being restrained for an extended period without a credible explanation, we find that it might be prejudicial to the suspect. This is because prolonged restraint is considered as a form of torture, as

it induces anxiety and uncertainty about the suspect's fate. Consequently, such circumstances often lead to the presumption that, torture was employed to extract a confession regarding commission of the alleged offence. The requirement that cautioned statements be recorded within four hours of the suspect's restraint appears to be aimed at safeguarding human rights and preventing unfair treatment of criminal suspects. Any delay beyond the four-hours' window, without justification, is undeniably detrimental to the suspect, as illustrated in the case of Emmanuel Malabya v. R, Criminal Appeal No. 212 of 2004 (unreported). Therefore, whereas section 169 of the CPA can be applied, the utmost precaution to be taken is that, while public interest is of the most significant importance, it should be observed without prejudicing the rights and freedom of the suspect. See: Rashid Omari v. R, Criminal Appeal No. 106 of 2020 (unreported). The application of section 169 of the CPA was also discussed elaborately in the case of Jibril Okash Ahmed v, R, Criminal Appeal No. 331 of 2017 (unreported). The main discussion was that for section 169 (2), to apply, the requirements under the provision should be complied with cumulatively.

Undeniably, murder is a serious offence calling for capital punishment. Though this requirement under section 169 (2) (a) of the CPA has been satisfied, nonetheless, the prosecution in this case has, in our view, failed to justify failure to record the cautioned statements within the prescribed time as required under section 50 (1), failure to observe the requirements under section 57 (2) (a) and (e) 57 of the CPA. We find the omissions fatal. This differs from what happened in Chacha Jeremiah Murimi's case (supra). In that case, there were reasons for the Court's decision. The Court looked at the high public interest, complications in the investigation, and information contained in those cautioned statements. There is nothing showing that the investigation in the present appeal was complicated, besides the delay in arresting the 3r d appellant in 2018 for an offence committed in August 2017. Therefore, applying section 169 of the CPA seems unnecessary, as it might encourage laxity among investigators and the suspects would easily be exposed to mistreatments and prejudices. We have closely examined PW5's evidence, and his statement was admitted as Dl; nothing was exhibited to indicate complications, as it was in Chacha Jeremiah Murimi's case (supra). What can be said is that all in all, PW5 lacked diligence in his investigation undertaking. Had

the trial Magistrate cautiously compared the witness statement with the cautioned statements, she likely would not have convicted the appellants. Exhibits P3 and P4, deserved to be expunged from the record as, we hereby do. Expunging of exhibits P3 and P4 leaves exhibits PI and P2 as the only remaining evidence. However, exhibit P2 also suffered the shortfalls experienced in exhibits P3 and P4, as it was recorded contrary to section 57 (2) (a) without indicating questions and answers as it were to exhibits P3 and P4. But, assuming that the infraction is minor as per the decision in Ramadhan Salum v. R, Criminal Appeal No. 5 of 2004 (unreported), the question is, can it be used to implicate the 1s t and 3r d appellants? The answer is no. According to section 33 (2) of the Evidence Act, conviction of an accused person cannot be solely based on a confession of a co-accused. The oral evidence of PW1, PW2, PW3, PW4, PW5 and PW6 and exhibit PI - Post mortem report, did not implicate the appellants, making a case against them not proved. Considering the above discussion, we find that remitting the record to the High for proper summing up will occasion an injustice to the appellants, as there is no cogent evidence to prove a case against them.

In conclusion, we find the appeal meritorious and we allow it. All the appellants should be released from prison unless lawfully held for other reasons. DATED at DAR ES SALAAM this 3r d day of October, 2024. S. A. LILA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL The Judgment delivered via Video Conference linked from Tabora High Court this 4th day of October, 2024 in the presence of the appellants and Ms. Anneth Makunja, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original. 0. H. KINGWELE DEPUTY REGISTRAR COURT OF APPEAL