Asangalwisye Kayuni @ Katiti & Others vs Republic (Criminal Appeal No. 602 of 2015) [2017] TZCA 937 (12 October 2017)

V .........APPELLANTS IN THE OURT OF APPEAL OF TANZANIA AT MBEYA ( CO RAM : MUSSA 3.A., MZIRAY, 3.A., And M W A N G ESL 3.A.) CRIMINAL APPEAL NO. 602 OF 2015 i

1. ASANGALWISYE KAYUNI @ KATITI ^ @ MWAKATOGA
2. GERALD KOROSSO KALONGE
3. LENARD MSALEGE KAGISYA @ MW AKISOLE
4. AKIMU MSELEMU MWAKALINGA ^ VERSUS THE R E P U B L IC .......... . .................................... . ................. . ..... RESPONDENT (Appeal from the decision of the High Court o f Tanzania at Mbeya) (Dr. Levira, J.) dated the 30th day of June, 2015 in Criminal Session No. 16 o f 2014 JUDGMENT OF THE COURT 6th & 12thOctober, 2017 MWANGESI. 3.A.: The appellants herein along with one Mawazo Philimon Sigomole, Stood arraigned at the High Court of Tanzania at Mbeya, for the offence of murder contrary to the provision of section 196 of the Penal Code Cap. 16 RE 2002. In accordance to the information laid at the appellants' doors, it was alleged that, on the 5th day of February,

2008, at Ilolo village within the district of Rungwe in Mbeya Region, they did jointly and together murder one Henry Mwakajila. All of them did protest their innocence. In its endeavour to establish the guilt of all appellants to the charged offence, the prosecution fielded fifteen witnesses augmented by ten exhibits. On their part, the appellants depended on their own sworn testimonies and in addition, the first, second and fourth (initially the fifth accused) appellants, did each call one witness to complement his and one exhibit, which was tendered by the last appellant. The learned trial Judge, who was being aided with assessors, upon evaluating the evidence received from both sides and the opinion of assessors, was satisfied beyond reasonable doubt that, the case against the first, second, third and fifth accused, who currently appear as the first to the fourth appellants respectively, had been established to the hilt. She did therefore, convict them as charged, while on his part, the fourth accused was acquitted and set at liberty. All appellants, felt aggrieved by the decision of the learned trial Judge, as a result, did prepare separate grounds of appeal to

challenge it The appeals were lodged in Court at different dates that is, on the 21s t July, 2017, by the first appellant, 2n d May, 2016, by the second and fourth appellants, and 21s t April, 2016, by the third appellant. On the other hand, all appeals were strenuously resisted by the respondent Republic. When the appeal was called on for hearing on the 6th day of October, 2017, all appellants did enjoy the joint services of Messrs Victor Mkumbe and Ladislaus Rwekaza learned counsel, whereas, Messrs Achilles Paul Mulisa and Hebei Kihaka, learned Senior State Attorney and State Attorney respectively, entered appearance to defend the respondent Republic. Mr. Mkumbe learned lead counsel, did rise to inform the Court that, they have consolidated the separate grounds of appeal, which had earlier on been filed by the appellants, as per the joint memorandum of appeal, which they lodged in Court on the 2n d day of October, 2017, which reads:

1. That\ the learned trial Judge erred in law and fact in allowing the Court assessors to cross-examine witnesses contrary to sections 146 and 147 o f the Evidence Act, Cap 6 RE 2002.

2. That, the learned trial Judge erred in law and fact, in basing the conviction o f the appellants on the caution statement o f one Kefasi Lyambulilo Mwakalinga, which was hearsay. \

3. That\ the learned trial Judge erred in law and fact ; in convicting the appellants in the absence o f any incriminating evidence against them. The unchallenged testimony of Laudeni Mwandile, who testified as PW1, gives a backdrop of the incident leading to the decision being impugned in this appeal, albeit in brief, wherein, he did stateat pages 20 to 21 of the record of appeal to the effect that: "I live in Iringa from last year November. Before that I was living at Ilolo village in Rungwe district. I was born in Ilolo and stayed • there for the whole time till when I completed form four. I studied at Ukukwe secondary school which is in Ilolo village. In 2008, I was in form two. On the 05/02/2008 in the evening, I was with my friend Henry Mwakajiia, whom we studied in the same class. At around 1600 hours, we went to Edo

Mnasi's place ; who was teaching us tuition. As we did not find him, we decided to go back home. We walked up to a certain road where the road parted at a cross road. Henry took his , way back home, while I took mine. Since then, we did not communicate with my friend. On the 06/02/2008, when I went to school as usual, I did not find Henry Mwakaji/a at school and, when I went back at home, I was informed by my brother Ahobokile Mwakasyoka that, Henry MwakajHa did not return home the previous day. Thereafter, people started to look for his whereabouts to ’ no avail to date." Briefly, the foregoing narration by PW1, accounts for the circumstance under which Henry Mwakajila (an albino), whohappens to be the deceased in this case, went missing. A clue leading to the cause for his disappearance, and the way in which some parts of a human being body, believed to be his, did come to be found, and the circumstances in which the appellants in this appeal got associated with his death, was the subject of the decision of the trial Court, which is being challenged in this appeal.

In his amplification to the first ground of appeal, Mr. Mkumbe learned counsel, did submit to the effect that, the learned trial Judge, did err to permit the assessors to cross-examine the witnesses during trial. When the counsel was requested by the Court, to point out the areas in the record of appeal, where assessors did cross-examine witnesses, it turned to be an arduous task, of which, he was unable, on the obvious reason that, they did not. Throughout the trial of the case, assessors were required by the learned trial Judge, to put questions to the witnesses as per the stipulation under section 177 of the Evidence Act, Cap 6 RE 2002 (the Evidence Act), and not to cross- examine them, as complained of by the learned counsel for the appellants. It would appear, there was a slight misapprehension of > the term cross-examine, on the part of the learned counsel for the appellants. Subsequent to his recollection from the prompt by the Court, the learned counsel for the appellants did drop the first ground of appeal. In similar breath, when Mr. Mkumbe learned counsel for the appellants, was again prodded by the Court, as regards the statement j given by Kefasi Lyambulilo Mwakalinga, which was tendered in

evidence and admitted as exhibit P7, if it was a cautioned statement as contained in the second ground of appeal, he seemed to be taken off guard. In his latter attempt to answer us, he opined that, the fact that before giving the statement, the maker did give his declaration, then the statement was a cautioned one. We think that, that was yet another misapprehension, on the reason that, the declaration by the maker in the current statement was made under the provision of i section 34 (2) (c) of the Evidence Act, as contrasted from declarations made under sections 57 or 58 of the Criminal Procedure Act, Cap 20 RE 2002, (the CPA), which deal with cautioned statements. With such notion in mind, we permitted the learned counsel to amplify his second ground of appeal. Mr. Rwekaza learned counsel, did rise to expound the second ground of appeal. He did submit to the effect that, the basis of conviction to all appellants in this appeal, was grounded on the statement that was given to the Police by Kefasi Lyambulilo Mwakaiinga, which was admitted in Court under section 34 B (2) of the Evidence Act as exhibit P7. Nonetheless, the fact that Kefasi Lyambulilo Mwakaiinga, did not eyewitness the incident of killing the

late Henry Mwakajila, his statement was mere hearsay, based on persona! whims, actuated by whatever motives he might be habouring against the appellants. Regard being to the fact that, his credibility was never tested through cross-examination, after he had passed away before giving his evidence in Court, in the view of the learned counsel, such evidence was not worthy being given any value, in particular, on a serious offence as the one, which faced the appellants. And, ,even if the said statement of Kefasi Mwakalinga was to be believed, a thing which they strongly contested, the mere fact that, the first and second appellants were found with alleged human body parts, which after all, were never established to be of the said Henry Mwakajila, still did not suffice to implicate the appellants to the charged offence of murder. To bolster his averment, the learned counsel, did refer us to the decision in Nathaniel ASphonce i Mapunda and Benjamini Alphonce Mapunda Vs Republic [2006] TLR 395, where the Court held that, the mere fact that, the dead body was found in the shamba of the first appellant and that, the appellants were also seen there, was not enough in the absence

of other evidence linking them with the killing of the deceased.We were therefore, urged to follow suit. With regard to the third ground of appeal, Mr. Mkumbe learned counsel, did argue that, the gravamen of their complaint is founded on the weak evidence that was relied upon by the learned trial Judge, to hold the appellants culpable to the offence of murder. Starting with the first appellant, he did submit that, the evidence which tried to implicate him to the charged offence was a piece of meat which he named " ngambakW , which he admitted to have been recovered in his kitchen. Being common knowledge that, he was a witchdoctor, he did give sufficient explanation that, the same was being used to treat his patients. Additionally, there was no any cogent evidence given, to establish that, the same was part of a human being body. As regards the second appellant, the learned counsel did continue, there was an allegation that, he was found with a box which happened to contain some parts of human body. Nevertheless, in the first place, there was no evidence to establish that, indeed those parts were of a human being, and to be precise of a person known as Henry Mwakajila. And, secondly, which is of most important, the

circumstance under which, the second appellant came to be associated with the said box, left many questions without answers.While on the one hand, there was an averment of Paschal Kalonge (PW5), to the effect that, he had once been sent by the appellant while in the village remand, to go and collect the box from his mother's house and take it to the first appellant, there was yet » another version of Hezron Korosso Kalonge (PW8), to the effect that,on the date when the appellant got arrested, he had been carrying a box, which he did abandon while attempting to escape. The learned counsel did wonder, if the two witnesses were talking of the same box. And if so, his question was, as to how and when, did the alleged box shift from the first appellant, where it was alleged to have been sent as per PW5, into the hands of the second appellant? The learned counsel did humbly implore us, to resolve such discrepancies in the testimonies of the two witnesses in favour of the appellant. In as far as the third and fourth appellants were concerned, it was the submission of Mr. Mkumbe learned counsel that, there was completely no evidence at all, which did link them with the charged offence, other than the mere fact that, they got named by the late 10

Kefasi Mwakalinga in his statement (exhibit P7). Since they have demonstrated in the second ground above that, the content of exhibit P7 was an unreliable piece of evidence, he urged us to find merit in the appeal. And, furthermore, even if exhibit P7 was to be relied upon, a thing which they did strongly resist, there was no any other independent evidence to corroborate the same. In conclusion, Mr. Mkumbe learned counsel, asked us to allow the appeal by quashing the finding ,of the learned trial Judge, setting aside the death sentence meted, and setting all appellants at liberty. In rebuttal to the second ground of appeal, Mr. Kihaka learned State Attorney was in the first place, at one with his learned friend that, indeed the case against the appellants was principally built on the contents of the statement given by Kefasi Mwakalinga. He did however add that, the same was corroborated by some other i evidence. But, he did part ways with his learned friend, on the contention that, the statement of Kefasi Mwakalinga was hearsay. In his view, it was not hearsay on the reason that, he was fully involved in the whole process of plotting to kill the deceased. In that regard, Kefasi Mwakalinga was an accomplice, whose testimony is as good as 11

the testimony of any other competent witness as per the holding in unreported case of Adventina Alexander Vs Republic, Criminal Appeal No. 134 of 2002. i Additionally, Mr. Kihaka learned State Attorney did argue, the content of exhibit P7, was sufficiently corroborated by the large intestine (exhibit P4), which was found at the premises of the first appellant, and parts of human body (exhibit P5) that were found in the box that had been in the possession of the second appellant, all of which according to the findings contained in the DNA report (exhibit i P6), which was compiled by Gloria Jom Machuve (PW14), a Government Chemist, they did belong to the late Henry Mwakajila. In the circumstance, there was no way in which the first and second appellants could exonerate themselves from liability to the death of the late Henry Mwakajila. To buttress his contention, the learned State Attorney did seek reliance from the holding in Ally Bakari and Another Vs Republic [1992] TLR 10. With regard to the third and fourth appellants, Mr. Kihaka learned State Attorney, did concede to the assertion by his learned friend that, apart from being associated to the incident under

discussion in exhibit P7, there was no other independent evidence to implicate them to the same. Such fact notwithstanding, it was his firm view that, exhibit P7 did sufficiently implicate them. He did therefore urge us, to uphold the position that was taken by the learned trial Judge. Responding to the third ground of appeal, the learned State Attorney did submit that, the learned trial Judge was justified to enter conviction to all appellants, because there was ample evidence to implicate them all. Distinguishing the holding in NathanieS ASphonce Mapunda and Another Vs Republic (supra), which was relied upon by his learned friend to the present case, he did argue that, the i circumstances were different in that, while in the earlier case, the appellants were just found near the dead body, in the instant one, the appellants were found in possession of parts of the body of the deceased. Commenting on the chain of custody of the exhibits which were tendered during trial of the case of which, his learned friends did » complain about, the learned State attorney was of the view that,such contention was dearth of basis. As explained in detail in the judgment 13

by the learned trial Judge, the evidence from the prosecution was straight and clear in establishing that, there was no any point in time when there was any breakage, from the time when the specimen were extracted from the respective sources, to when they got tendered in Court, He did therefore beseech us, to uphold both the findings of the-learned trial Judge and the sentence meted, by dismissing the entire appeal. - We take note that, both two grounds of appeal bythe appellants that is, the second and third grounds, after dropping the first ground^ boil on the question of evidence. We are alive to the principle that, this being the first appellate Court, we have the mandate of stepping into the shoes of the trial Judge and re-evalisate the evidence and come out with our own finding. As it is agreeable by both sides that, the evidence relied upon by the trial Court in holding the appellants culpable to the charged offence was circumstantial evidence, the question for our deliberation is whether, such evidence did meet the required threshold. According to the established principle of law, for circumstantial evidence to ground conviction, it must be incapable of more than one i 14

interpretation. See: Hassan Fadhili Vs Republic [1994] TLR 89, and unreported cases of Ahamadi Challi Vs Republic, Criminal i Appeal No. 56 of 1996, Jabili Mohamed Vs Republic, Criminal Appeal No. 103 of 2013 and Seif Saium and Another Vs Republic, Criminal Appeal No. 119 of 2015, just to mention but a few. The statement of Kefasi Lyambulilo Mwakalinga (deceased), which was admitted as exhibit P7, was the launch of this case. It was spelt out in the said statement that, the maker was actually the one, i who sold the idea to his colleagues that, human body parts of an albino, could make someone rich. There-from, the hunt for an albino, which ended into killing the late Henry Mwakajila commenced. It was further indicated in the statement that, what caused him (the maker), to spill out the information was because he got excluded from the loot, for no apparent reasons. Mr. Rwekaza learned counsel, did submit to the effect that, the said statement, was not worthy being believed because firstly, it was hearsay. And secondly, it was maliciously given for purposes of victimizing the appellants for reasons best known to himself.

Had it not been the recovery of parts of a human body, resulting from the information contained in the statement of Kefasi Mwakalinga, definitely nobody would have bothered to give any grain of weight to the same. On the contrary, basing on the information obtained from Kefasi Mwakalinga, Henry Kisima (PW 13) and Major Michael (PW 15) managed to recover parts of a human being, of which their relevance or otherwise to this case, is reserved to a later moment. For the moment, it only suffices to hold that, for whatever reasons, Kefasi Mwakalinga might had in giving the lengthy information contained in exhibit P7, we are convinced that, the same i was relevant in so far as the investigation of this case was concerned. The subsequent question that crops is whether the learned trial Judge, in treating Kefasi Mwakalinga as an accomplice in the case before her, was legally justifiable. The definition of the term accomplice was given by the defunct Court of Appeal for East Africa in the case of Jethwa and Another j Vs Republic, 1 E.A 459, where, after being inspired, it adopted the definition given by the House of Lords in Davies Vs Director of Public Prosecution [1954] 1 ALL E.R 507 thus:

"The term accomplice covers participles criminis in respect o f the actual crime charged, whether as principals or as accessories before or after the fa c t" The position was later followed in a number of decisions including, .the unreported cases of Adventina Alexander Vs Republic, Criminal Appeal No. 134 of 2002, Thobias Mang'era Mango Vs Republic, Criminal Appeal No. 27 of 2006 and Lusungu Duwe Vs Republic, Criminal Appeal No. 76 of 2014. What is actually considered in determining as to whether one is an accomplice to a crime or not in the light of the definition above, first, therq must be a crime committed. Second, he must have participated in committing the offence, either before or after. Since according to exhibit P7, Kefasi Mwakalinga did actively participate in plotting to obtain parts of the body of Henry Mwakajila, who was an albino, so that they could use them to get rich, he did squarely fit in the definition given above in that, he was an accessory before the fact. Under the circumstances, the learned trial Judge was legally justified to treat Kefasi Mwakalinga as an accomplice, to the case that 17

was before the Court, which concerned the death of Henry Mwakalinga. As regards the evidential value that had to be accorded to the statement of kefasi Mwakalinga (an accomplice), the provision of section 142 of the Evidence Act, gives the legal position, where it states that: , "An accomplice shall be a competent witness against an accused person; and conviction is not illegal merely because it proceeds upon the uncorroborated testimony o f an accomplice." The foregoing provision was tested by being applied by this Court in Paschal Kitigwa Vs Republic [1994] TLR 89, where its holding that had some qualification, was to the effect that: i ’! 'Although the law does not say that ; conviction on uncorroborated accomplice's evidence is illegal, it is still unsafe, as a matter o f practice, to uphold conviction based on uncorroborated evidence o f an accomplice." [Emphasis supplied] 18

See also: Fanuel Joseph Mbedule Vs Republic [1989] TLR 221, As earlier pointed out above, apart from the evidence contained in the statement of Kefasi Mwakalinga (exhibit P7), there was a piece of meat (large intestine) that was recovered during a search, which was conducted by Henry Kisima (PW 13), in the company of D 2385 DSG Major Michael (PW 15), at the premises of the first appellant on the 13th day of May, 2008, which was witnessed by Paschal Kalonge (PW5) as well as Raisi Kalonge (DW 6). In essence, the recovery of such piece of meat was not resisted by the first appellant, who called i i t "ngambakW meaning, a male organ of a bull. When the same was analyzed by Gloria Machuve (PW 14), a Government Chemist, it was shown in the report (exhibit P 6) that, it belonged to a human being. Furthermore, its DNA tallied with the DNA which had been extracted from the shirt of the late Henry Mwakajila, as well as from the blood which had been taken from Bahati Seme (PW 3), who happened to be i the sister of the deceased. In his defense, the first appellant did state that, he was a witchdoctor and that, the piece of meat that was recovered in his kitchen, was not a part of human body but rather, a male organ of a 19

bull, which was being used for medication as supported by his wife Raisi Kalonge (DW 6) at page 217 of the record of appeal. As regards the second appellant, it was argued by the prosecution that, he was arrested with a box which had ten bones, t three tissues (pieces of meat) and four fingers (exhibit P5 collectively). When the same were analyzed by Gloria Machuve (PW 14), the DNA did match with those extracted from the shirt of the late Henry Mwakajila and the blood of his sister Bahati Seme. The controversy regarding the box and its contents, did center on the ownership. While the prosecution claimed that, the same did belong to the second appellant, who was arrested while possessing it, the second appellant did resist contending that, he knew nothing concerning the same. In support of its case, the prosecution had the testimonies of Paschal Kalonge (PW 5), Jimson Kasebele (PW 6), Hezron Korosso (PW 8) and Faidoni Kasebele (PW9). Part of the testimony of Hezron Korosso (PW 8) at page 58 of the record of appeal was to the effect that, on the 17/05/2008 about 1200 hours, Gerald Kalonge arrived at the village of Mbembati from Mbwenda village. He was carrying a box of mshindi soap. Upon 20

seeing him, he (the witness) being the chairman of the area, did shout for him, a thing that made Gerald to drop the box and take to his feet While other villagers started to chase him, on his part, he did remain at where the box had been dropped in the company of other villagers that included, Paswit, Mwasonya, Aminoni Klenge, Michel Kalonge, Haki Sengo and others. The averment of Hezron Korosso i was echoed by the testimony of Paschal Kalonge at page 43 of the record of appeal. Oh his part, Jimson Kasebele (PW 6), did testify at page 49 of the record of appeal to the effect that, in May 2008, he heard that, Asangalwisye Kayuni had been arrested by Police Officers with an organ of an albino and that, Gerald Kalonge was also wanted. On the i date when Gerald Kalonge got arrested, he was travelling from his farm towards his brother's premises. Then, he heard the chairman (PW 8), shouting nearby him that, Gerald Kalonge had to be arrested. On checking, he did see Gerald Kalonge abandoning a box and starting to run. In the company of other people he did run after Gerald Kalonge and managed to arrest him near the village of Msuba, From there they did take him back to the village of Mbembati. The 21

testimony of this witness, was corroborated by the testimony of Faidoni Ka'sebele (PW 9), who also participated in the chase as reflected at page 71 of the record of appeal. On his part, as earlier highlighted above, the second appellant did completely distance himself from the box alleged to have contained parts of a human being. Accounting for his arrest at page 188 of the record of appeal, the second appellant did state that, he was arrested at Shuba Village by two people on the 20/05/2008 and not 17/05/2008 as testified by prosecution witnesses. Those who arrested him went by the names of Samson Lamsi Kasekwa and Faidoni Kapenere Ngabo, who told him that, he was needed at the Police Station Tukuyu. After his arrest, he was taken to Mbembati village, where he was told by the Village Secretary that, he had a problem with Hezron. From the village office, he was escorted by a village security officer, up to the boundary of the villages of Mbembati and Mtula, where he founded a Police car parked. At the same, he was tied both his hands and thrown into the car wherein, he was ordered to lie on his stomach. As it was already dark, he could hear people who were using the lights of the motor vehicle, identifying

things which from the language used, they suggested to be, of a human being. From there he was send, to the Police Station of Tukuyu. i On our part, upon closely observing the evidence of both sides, as regards the first appellant, we have first noted that, there was variance of the versions of the first appellant and his wife regarding the use of the "ngambaku "that was recovered in their kitchen. While the first appellant stated that,-it was being used to treat hernia, his wife (DW 6), did state that, it was being used to treat stomach pain. i Such discrepancy may be construed to have been resulted from the fact that, it had been at their house not for a long time or that, it was for other purposes other than those named. Such disparity however, cannot be used as a ground to hold the first appellant culpable, on the principle that, weakness of the defense evidence cannot be used to found culpability to an accused. See: Republic Vs Kerstin Cameron [2003] TLR 84. However, the fact that the analysis which was made by Gloria Machuve(PW 14) to the piece of meat " ngambaku "(exhibit P4), did in the first indicate that, it was not of an animal but a human being, and 23

further that, it did tally with the DNA extracted from the shirt of the late Henry Mwakajila as well as the blood of Bahati Seme (the sister of the deceased), such findings, as it was for the trial Judge, do satisfactorily convince us that, what was found at the kitchen of the first appellant was not "ngambaku" meaning, the male organ of a bull as he did contend, but a large intestine of the late Henry Mwakajila. With regard to the second appellant, we note that, the tale by the second appellant regarding his arrest is to a great extent, similar -to what was narrated by the prosecution witnesses in regard to’the village, where he was arrested that is, Shuba, the number of people who arrested him, that is, two, save their names. While according to the prosecution, those who arrested him were Jimson Kasebele and Faidoni Kasebele, in his tale he named them as Samson Lamsi Kasekwa and Faidoni Kapenere Ngabo. There is similarity as well in regard to his being transferred from Shuba village to Mbembati after arrest, his being moved from Mbembati village offices to the boundary of Mbembati and Mtula villages, where a Police motor vehicle had » been parked and that, at the material time it was already dark. 24

After having heard the testimonies of the people who arrested him, we are tempted to believe that, the minor changes which have been made by the second appellant, to all that transpired on the fateful date, was aimed at distorting the sequence. Otherwise, we would have expected to find the appellant bringing in Court those people, whom he alleged to have arrested him so as to contradict the averment of the prosecution witnesses. All in all, after having intently observed the testimonies of Paschal Kalonge (PW5), Jimson Kasebele (PW6), Hezron Korosso Kalonge (PW8) and Faidoni Kasebele (PW9), we are left with no shadow of doubt that, what they did tell the Court was nothing but what transpired on the material date save some minor variances as to dates, whigh might have been a result of lapse of time and memory capabilities. To this we would wish to borrow the holding in John Gilikala Vs Republic, Criminal Appeal No.31 of 1999 (unreported that: " The discrepancies were on details and they may have been occasioned by relatively long passage o f time and the frailty o f human memory," i I 25

To that end, we hold with no uncertain terms that, the box (exhibit P9), which was found abandoned near the cross roads near i the boundary of Mbwenda and Mbembati villages, containing parts of human body and two udi sticks (exhibit P5 collectively), had been in the possession of the second appellant. The scenario discussed above leaves us with the question as to where did the two appellants obtain the parts of the body of the deceased Henry Mwakajila. Both appellants did rely on the defense of i alibi that, on the 05th February, 2008, the date on which the deceased was alleged to have killed at Ilolo village, they were at different places other than the alleged scene of incident. While the first appellant claimed to have been at his home with his wife, the second appellant told the trial Court that, he was celebrating CCM festival at Isongole village. i We would wish at this juncture, to point out that, there was no direct evidence to establish that, the deceased was indeed killed while at Ilolo village. Since his death was by mere presumption, Ilolo was made the place where he got killed on the reason that, that was the last place where he was lastly seen alive. Under the circumstance, 26

the defense of alibi relied upon by the first and second appellants, was of little avail, if any. On the contrary, it having been held above that, they were found in possession of parts of the deceased's body on the 13/05/2008 for the first appellant and on the 20/05/2008 for the second appellant, which was after the lapse of about three months or so only, from the date of disappearance of the deceased, in our view, each of the two bore the burden of explaining as to how he came by the part/s of the human body of the deceased, which he was found with. Unfortunately on their part, none of the two was able to discharge such burden. There was also a complaint raised by the learned counsel for the appellants, in respect of the chain of custody of the exhibits that were sent to the Government Chemist for analysis. In view of the learned counsel, it was not clearly established. Indeed, the chain of custody involving exhibits that have to undergo different stages for analysis has been held to be very important. On a number of cases where there was breakage of chain of custody, such exhibits were discarded by the Court. See: Unreported cases of Abuhi Abdallah Omary and 27

Three Others Vs Republic, Criminal Appeal No. 28 of 2010, Oscar Nzelani Vs Republic Criminal Appeal No. 48 of 2013 and Zainah Nassoro ( g > Zena Vs Republic, Criminal Appeal No. 348 of 2015. It was stated in the last case above that: "Lack o f chronological documentation showing how each stage o f holding o f the exhibit was done from seizure, custody control, transfer, and analysis right up to the exhibition in Court was fatal and rendered the exhibit o f no evidential value." Back to the appeal at hand, the sequence of all exhibits relied upon by the prosecution that is, the " ngambakd’ (P4), the bones and i fingers (P5 collectively), the clothes of the deceased (P3), and; the sample of blood that was taken from Bahati Seme was clearly documented. Right from when Henry Kisima (PW 13) collected them from the respective sources, he handed them over to Shabani Mainde (PW 10), who sent them to the Government Chemist Offices, where they were received by Gloria Mchuve (PW 14), who after analyzing them, did hand them back to Abdalla Mainde (PW 10), who in turn, returned them to Henry Kisima, who tendered them in Court as 28

exhibits. We are satisfied that, the handling left no loophole for suspicion of getting tempered with. In the circumstances, we have found no bases at all, to differ with the finding of the learned trial Judge that, the chain of custody was clearly* established. We therefore find the complaint on behalf of the appellants in that aspect, dearth of merit and we dismiss it. This marks the end of our discussion in regard to the first and second appellants. On their part, the third and fourth appellants were implicated to the charged offence, by the evidence contained in exhibit P7. According to the statement of Kefasi Lyumbulilo Mwakalinga, both the two did actively participate in plotting on how to kill the deceased, who was an albino so that, they could use his body parts to enrich themselves. After having held above that, Kefasi Mwakalinga was an

accomplice whom, his testimony could be used against his colleague, and being minded that, his credibility was not tested by cross- examination, we are of the view that, such evidence ought to have be treated with great circumspection. In line with the warning that was given in Paschal Kitigwa Vs Republic (supra), which we fully subscribe to, we think, it was unsafe to found conviction to the 29

appellants basing on uncorroborated evidence of Kefasi Lyambulilo Mwakalinga. i On the other hand, since there was evidence from Lauden Mwandile (PW 1), Niko Mwandile (PW 2) to establish that, Henry Mwakajila, who was an albino, did disappear, and that, his whereabouts, was never traced. And that, there was evidence from Kefasi Mwakalinga (exhibit P7) to establish that, Henry Mwakajiia had been killed so that his body parts could be used to enrich people. And i that, parts of human being, were found in possession of the first and the second appellants within three months from his disappearance. And further that, upon analysis by Gloria Machuve (PW14), who happened to be a Government Chemist, the parts of human being found with the first and second appellants, were found to belong to Henry Mwakajila (deceased), by any parity of reasoning, in the absence of any other explanation to the contrary, which was the case in the instant matter, the only probable inference is that, the two that is, the first and second appellants, were the ones who killed the deceased. In that regard, we fully associate ourselves to the holding of the learned trial Judge that, the first and second appellants

wereculpable to the offence of murder, which they stood charged with. Their appeal against conviction and sentence isbereft of merit and isdismissed in its entirety. With .regard to the appeal by the third and fourth appellants, we find merit in it and as a result, we allow it by quashing the conviction and setting aside the sentence of death by hanging which was meted against them, and in lieu thereof, we order for their immediate release from custody, unless they are otherwise lawfully held for any other justifiable cause. Order accordingly. DATED at MBEYA this 12th day of October, 2017. K. M. MUSSA JUSTICE OF APPEAL R. E. S. MZIRAY JUSTICE OF APPEAL S. S. MWANGESI JUSTICE OF APPEAL I certify that this is a true copy of the original E^CMKWIZU' DEPtJTY REGISTRAR ICOU^f OF APPEAL 31