Republic vs Halawa Kuzenza (CRIMINAL SESSION CASE NO. 4523 OF 2026) [2026] TZHC 3122 (8 June 2026)

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF TABORA AT URAMBO CRIMINAL SESSION CASE NO. 4523 OF 2026 THE REPUBLIC VERSUS HALAWA KUZENZA RULING 8P & 8t hJune, 2026 MPAZE, J.: Halawa Kuzenza (the accused) was arraigned before this court charged with the offence of murder contrary to sections 196 and 197 of the Penal Code, Cap. 16 R.E. 2023. It is alleged in the information that on 27th October, 2023 at Tulieni Hamlet, Wacha Waseme Village, Kaliua District, Tabora Region, he murdered one Wande Kabadi. The accused person denied the charge, thereby necessitating a full trial in which the prosecution assumed the burden of proving the allegations beyond reasonable doubt. In an attempt to establish its case, the prosecution called a total of ten witnesses and tendered eight exhibits. Jovin Nyachimwa Maka (PW1), l

a medical doctor, conducted the post-mortem examination on the deceased's body and produced the Post-Mortem Report. Daniel Ezekia Mwansembo (PW2), also a medical doctor, testified regarding the extraction of the accused person's blood sample for DNA examination. F6776 D/SGT Julius (PW3), an exhibit keeper, testified that he received the panga later marked as Exhibit P7 from Insp. Jacob Augustino Lukosi (PW6) and kept it in safe custody. He further stated that upon receiving it, he labelled it with Police Case No. KAU/IR/1002/2023, Exhibit Register No. 56/2023, and indicated the offence as murder. According to him, he retained custody of the exhibit until 7th November, 2023, when he handed it over to SP Mbaruku Saidi Msoga (PW5). Wande Kulwa (PW4) and Seleman Masali (PW7) testified on matters relating to the circumstances surrounding the alleged offence and the subsequent arrest of the accused person. SP Mbaruku Saidi Msoga (PW5), who was the OC-CID of Kaliua District at the material time, testified that on 7th November, 2023, he received Exhibit P7 from PW3 and blood samples from PW6 for purposes of transporting them to the Government Chemist. Insp. Jacob Augustino Lukosi (PW6), who served as both the arresting officer and forensic officer, testified that he collected blood samples from the deceased and the accused person, preserved them, and 2

subsequently handed them over to PW5. He also tendered the Certificate of Seizure, which was admitted as Exhibit P4. WP10069 D/CPL Angela (PW8), the investigating officer in this case, testified regarding the investigations conducted and produced the sketch map of the scene of crime, which was admitted as Exhibit P5. Mathias Lucas (PW9), a Government Chemist stationed in Mwanza, testified that he received three exhibits from PW5, namely the deceased's blood sample, the accused person's blood sample and the panga. He stated that after registering and preserving the exhibits, he transported them to the Government Chemist's Dar es Salaam Sub-office for DNA analysis. He tendered the Sample Receipt Notification Form, which was admitted as Exhibit P6. Boniface Emmanuel Majinyari (PW10), a Government Chemist, testified that he received the exhibits from PW9, conducted DNA analysis, prepared the forensic report and subsequently stored the panga in the Government Chemist's exhibit room until 28th May, 2026 when it was released to PW9 following a request from the police. The prosecution tendered the following exhibits; the Post-Mortem Report (Exhibit PI), a maroon bag (Exhibit P2), three torches collectively 3

(Exhibit P3), the Certificate of Seizure (Exhibit P4), the Sketch Map (Exhibit P5), the Sample Receipt Notification Form (Exhibit P6), the panga (Exhibit P7), and the Government Chemist Analysis Report (Exhibit P8). Upon concluding the presentation of its evidence and exhibits, the prosecution prayed for closure of its case. Following the close of the prosecution case, this court is called upon, pursuant to section 312(1) of the Criminal Procedure Act, [Cap. 20 R.E. 2023] (the CPA), to determine whether the evidence adduced discloses a prima facie case sufficient to require the accused person to enter his defence. The applicable test is well settled. The court is not required at this stage to determine whether the prosecution has proved its case beyond reasonable doubt, but whether there exists credible evidence which, if left unchallenged, could reasonably sustain a conviction. The guiding principle is well settled in Ramanlal Trambaklal Bhatt v, R [1957] 1 EA 332, where it was held that a prima facie case is one on which a reasonable tribunal, properly directing itself, could convict if no explanation is offered by the defence. However, where the evidence is so weak, inconsistent, or discredited that no reasonable court could 4

safely convict, the accused ought not to be called upon to defend. It is also trite that the Court must not allow gaps in the prosecution case to be filled by speculation or by requiring the accused to supplement deficiencies in evidence. The same principle has been reiterated in Director of Public Prosecutions v. Morgan Maliki & Another (Crim inal Appeal No. 133 of 2013) [2013] TZCA 2151 (30 July 2013), and Director of Public Prosecutions v. Peter Kibatala (Criminal Appeal 4 of 2015) TZCA (19 July,2019) October 2014), where the Court of Appeal emphasized that an accused person ought not to be called upon to make a defence where the prosecution evidence fails to establish the essential ingredients of the offence or sufficiently connect the accused with its commission. Guided by the foregoing principles, I now proceed to examine whether the evidence adduced by the prosecution establishes a prima facie case against the accused person. The prosecution heavily relied on visual identification, the alleged possession by the accused of a panga said to have had blood stains on its blade, and the forensic DNA evidence. 5

The principal witnesses on the issue of visual identification were PW4 and PW7. Both testified that they first saw the accused person on 26th October, 2023 when he arrived at their home in the company of two other men asking for the residence of one Mwana Charles. They stated that one of the three men was carrying a maroon bag and that PW4 escorted them to the vicinity of Mwana Charles' residence before returning home. PW4 testified that during the night of 27th October, 2023 while sleeping in the sitting room, she saw a man carrying a bag enter the house and proceed to the deceased's bedroom. According to her, upon following him, she witnessed him cutting the deceased with a panga. She immediately fled after encountering the other two men outside and later returned to find the deceased dead. She stated that she identified the assailant as the same person she had seen the previous day carrying the maroon bag, and that she was able to observe him through the illumination of a solar light inside the house. PW7 testified that at about 02:00 to 03:00 hours, after hearing screams, he rushed outside and saw a man carrying a bag emerging from the deceased's house. Although he chased the man, he failed to apprehend him. He stated that he recognised the person as one of the 6

three men who had visited their home the previous day and that he was able to observe him through solar lighting illuminating the area outside the house. Apart from the foregoing evidence, there is the testimony of PW6, who stated that upon arriving at the scene he interviewed both PW7 and PW4 regarding the incident. According to PW6, PW7 narrated the following; '... Thereafter, I m et m embers o f the deceased's fam ily. I was le d by Wema to Selem ani M asali and Wande Ku/wa. Se/em ani told me that th eir grandm other had been killed, nam ely Wande Kabadi. I asked him whether he had seen the attacker. He stated that he w ould be able to recognise the attacker by appearance, but did not know him by name. He further stated that he saw the person on 2Gh October, 2023 when the person came asking fo r the home o f one Mwana Charles. They were directed, but later returned. He stated that among the three people, one was carrying a m aroon and black bag. He further stated that even after they left, they seem ed suspicious. He added that on the night o f the incident, after hearing scream s, he went out with a torch, and due to solar lighting in the area, he saw a person com ing out o f the deceased's house carrying a bag and running away. Thereafter, I spoke to Wande Kulwa, who was not cairn and was taken aside. She was fearful and hesitant in answ ering i

som e questions. She stated that on 2&h October, three men had come asking fo r Mwana Charles and were directed away. She also stated that on 27th October, she heard scream s, went outside w ith a torch, and saw a person com ing out o f her grandm other's room carrying a panga and running away. However, when I asked her where she was a t the exact tim e o f the incident, she d id not clearly explain as she was very frightened...’ PW8, the investigating officer, testified that apart from interviewing PW4 and preparing the sketch map of the scene, she was present when PW6 returned to the scene with the accused person. According to PW8, the accused was shown to PW4, who immediately identified him as the person who had killed her grandmother. On this aspect, PW8 testified as follows:; ..Lu ko si had already returned to the scene with the suspect. Wande im m ediately identified him as the person who had cut her grandm other with a panga, and also as one o f the men she had escorted to Mwana C harles'home the previous d ay..’ Both PW6 and PW8, who respectively served as the arresting officer and the investigating officer, were questioned as to why no identification parade was conducted. Their common explanation was that an 8

identification parade was unnecessary because the accused had already been directly identified by the witnesses. Furthermore, during the trial before this court, both PW4 and PW7 identified the accused in the dock as the person involved in the incident. The question that now arises is whether, on the basis of this evidence alone, the accused was identified with such certainty that, if the evidence were left unchallenged and the accused elected to remain silent, a reasonable tribunal could safely convict him. I begin by taking guidance from the decision in Haii Mussa v R (Criminal Appeal No.283 of 2008) [2013] TZCA 301 (20 June, 2013), wherein the Court of Appeal reiterated the principle laid down in Musa Elias and Two Others v. Republic, Criminal Appeal No. 172 of 1993 (unreported), that; I t is a w ell established rule that dock identification o f an accused person by a w itness who is a stranger to the accused has value only where there has been an identification parade a t which the w itness successfully identified the witness before the w itness was called to give evidence a t the tria l '

The Court went on to hold that where a dock identification is not preceded by an identification parade, such identification is of little evidential value, if any. The prosecution sought to avoid the application of this principle by maintaining that the accused was not a stranger to PW4 and PW7 because they had seen him on the previous day, namely 26th October, 2023 when he allegedly arrived at their home in the company of two other men. The question which therefore arises is whether such brief encounter was sufficient to convert the accused from a stranger into a person so well known to the witnesses that no identification parade was necessary. I am unable, at this stage, to answer that question in the affirmative. The evidence of PW4 and PW7 shows that they had never seen the accused person before 26th October, 2023. Their encounter with him was confined to a single occasion during the evening hours when he arrived at their home in the company of two other men who, according to the evidence, were of similar complexion and physical appearance. Although PW4 stated that the three men remained at their home for approximately thirty minutes, the evidence does not disclose what transpired during that period beyond their inquiry regarding the residence 10

of Mwana Charles. There is no indication that any prolonged conversation took place between PW4 and the accused, or that the circumstances were such as to enable her to closely observe and memorise his physical features. Furthermore, while PW4 testified that she escorted the three men towards Mwana Charles' residence, she did not explain the nature of that journey. She did not state whether she walked alongside them, ahead of them, or behind them; whether any conversation took place during the journey; the distance covered; or the duration of the walk. These are important details when assessing whether a witness had a sufficient opportunity to observe and later recognise a person previously unknown to her. Equally significant is the fact that neither PW4 nor PW7 described any peculiar or distinguishing feature possessed by the accused which set him apart from the other two men. No evidence was led regarding any unique physical characteristic, mannerism, scar, mark, speech pattern, or other identifying feature that could have enabled the witnesses to single him out from his companions. 11

In those circumstances, it is difficult to conclude that the brief encounter of 26th October, 2023 was sufficient to transform the accused from a stranger into a person so well known to PW4 and PW7 that an identification parade became unnecessary. The caution expressed by the Court of Appeal in Mwarabu Suqweia @ Kihena v. R (Criminal Appeal No. 342 2022) [2025] TZCA 313 (27 March 2025), the Court of appeal underscored that; 'It is the position o f the law that identification by recognition m ay be m ore reliable than identification o f a stranger, but even when the w itness is purporting to recognize som eone whom he knows, the court should alw ays be aware that m istakes in recognition o f dose relatives and friends are som etim es m ade.' In the present case, the witnesses had only seen the accused once before the incident. The evidence falls considerably short of establishing the type of prior acquaintance ordinarily contemplated in cases of recognition. Furthermore, the circumstances under which the alleged identification was made were not free from the possibility of error. PW7 testified that he came out after hearing screams at about 02:00 to 03:00 hours and saw a person emerging from the deceased's house carrying a 12

bag. However, he did not explain from which point he observed the person, how far he was from him or for how long he had the opportunity to observe him. The evidence is therefore silent on important factors necessary for testing the reliability of visual identification during the night. See Waziri Aman v. R [1980] TLR 250. The evidence of PW4 is equally problematic. While before the court she testified that she followed the intruder and witnessed him cutting the deceased under solar light inside the house, PW6, who interviewed her shortly after the incident, gave a somewhat different account. According to PW6, PW4 informed him that she heard screams, went outside with a torch and saw a person coming out of her grandmother's room carrying a panga and running away. PW6 further stated that when he asked her where she was at the exact time of the incident, she could not clearly explain because she was frightened. This account materially differs from PW4's testimony before the court where she claimed to have directly witnessed the attack itself. More importantly, if the solar light inside the house was sufficiently bright to enable a clear observation of the attacker, as alleged by PW4, it remains unexplained why, according to the account attributed to her by PW6, she had to come outside carrying a torch in order to observe the person. This 13

inconsistency casts doubt on the actual conditions under which the alleged identification was made. The uncertainty regarding the lighting conditions is compounded by the evidence of PW8, the investigating officer. During cross-examination, she conceded that the visibility produced by a solar light depends on its capacity and that its brightness may diminish with prolonged use. Despite the centrality of the solar light to the prosecution case, no evidence was led regarding the capacity, intensity, condition, or brightness of the solar system allegedly illuminating either the interior or exterior of the house at the material time. The court was therefore left without objective evidence upon which it could assess the quality of the lighting relied upon by the witnesses. The importance of conducting an identification parade in circumstances such as these is underscored by Police General Order No. 332, which requires such a parade whenever the identity of a suspect is in issue and the suspect is not previously well known to the identifying witness. In the present case, both PW6 and PW8 conceded that no identification parade was conducted because they considered it 14

unnecessary. However, considering that PW4 and PW7 had allegedly seen the accused only once before the incident and that the alleged identification occurred during the night under disputed lighting conditions, this was, in my considered view, a proper case for an identification parade. Such a procedure would have provided an independent safeguard against the possibility of mistaken identity. What further weakens the prosecution case is that the accused was taken back to the scene after his arrest and shown to PW4, who immediately identified him as the perpetrator. That form of identification was inherently suggestive, as the witness was presented with a single suspect already under the control of arresting officer. The possibility of influence, whether conscious or unconscious, cannot be ruled out. Consequently, the subsequent dock identification by PW4 and PW7 adds little evidential value in the absence of a properly conducted identification parade. In the totality of the circumstances, the evidence of visual identification is attended by several weaknesses, including the absence of prior familiarity between the witnesses and the accused, the lack of evidence regarding distance and observation time, uncertainty concerning the lighting conditions, material inconsistencies between the testimony of 15

PW4 and the account attributed to her by PW6, and the failure to conduct an identification parade despite the circumstances of the case requiring one. These deficiencies substantially diminish the probative value of the identification evidence and render it unsafe, standing on its own, to found a conviction. Not only that, PW4 testified that after returning home and finding many people gathered at the scene, she entered the deceased's room, observed that her grandmother had already died, and thereafter went outside and sat aside. Despite claiming to have witnessed the assailant cutting the deceased, she did not immediately disclose this information to any of the people present. According to her testimony, she only revealed what she had allegedly witnessed upon the arrival of the police. Even then, PW6 stated that when he interviewed her, she appeared fearful, hesitant, and unable to clearly explain certain aspects of the incident. This circumstance raises further doubt regarding the reliability of her identification. It is a settled principle of law that where a witness claims to have identified an offender, naming or describing the suspect at the earliest opportunity lends assurance to the credibility of the 16

identification. In the case of Marwa Wanaiti v. R [2002] TLR 39 the Court emphasized the importance of a first report, observing that the naming or description of a suspect at the earliest opportunity serves as a safeguard against subsequent error or fabrication. In the present case, PW4's failure to immediately disclose the identity of the alleged assailant, despite the presence of numerous people at the scene, coupled with her hesitant account to PW6, further weakens the evidential value of her purported identification of the accused. Another piece of evidence relied upon by the prosecution is the recovery of the panga (Exhibit P7) and the Certificate of Seizure produced in support thereof. It is a requirement under section 39(3) of the Criminal Procedure Act, [Cap. 20 R.E. 2023] that where an exhibit is seized, a certificate of seizure be prepared and signed in order to demonstrate the legality and authenticity of the recovery process and to ensure a proper evidential link between the scene of crime and the exhibit produced in court. Although the statute does not expressly define the nature of the "witness" required at the point of seizure, judicial authorities have consistently held that such a witness ought to be independent, that is, a 17

person with no interest to serve in the outcome of the case. The rationale behind requiring an independent witness is to provide impartial and credible evidence regarding the recovery process, thereby safeguarding the integrity of the exhibit and minimizing the possibility of fabrication, manipulation, or false implication. This position was emphasized by the Court of Appeal in Jibril Okash Mohamed v. R (Criminal Appeal No. 331 of 2017) [2021] TZCA 13 (11 February 2021). Similarly, in Shabani Said Kindamba v. R (Criminal Appeal No. 390 of 2019) [2021] TZCA 221 (2 June 2021), the Court of Appeal underscored the importance of an independent witness in the following terms; xWe are in clined to take it as lo g ical that an independent w itness to a search m ust be credible, or the whole exercise would be rendered suspect...In the instant m atter, the certificate o f search and seizure was signed by Rajabu Semuye, who was the com plainant. I am o f the considered opinion that the com plainant could not be an independent witness. Therefore, since the said certificate o f seizure was not signed by an independent witness, then the tria l m agistrate erred in law in relying on it in convicting the appellants.' 18

In the present case, the prosecution relied on two signatories to the Certificate of Seizure. The first is PW7, who was not only a prosecution witness but also an alleged eyewitness to the incident. In evidential terms, PW7 cannot reasonably be regarded as an independent witness. He was not a neutral observer; rather, he was directly connected with the occurrence under investigation and was actively advancing the prosecution narrative as an eyewitness. His participation in the seizure process therefore raises a legitimate concern as to whether the recovery was conducted in the presence of a truly independent witness as contemplated by law. The second person whose name appears on the Certificate of Seizure is one Wema, described in the evidence as a local government authority. However, for reasons not explained on the record and best known to the prosecution, this witness was never called to testify before the court. As a result, the court was deprived of an opportunity to ascertain the circumstances under which the panga was allegedly recovered, the condition in which it was found, and the manner in which the Certificate of Seizure was executed. In criminal proceedings, the unexplained failure to call a material witness may legitimately invite an 19

adverse inference that such evidence would not have supported the prosecution case. It is also noteworthy that when the Certificate of Seizure was tendered in evidence, learned defence counsel objected to its admissibility. Although the document was ultimately admitted, admissibility alone does not cure deficiencies relating to credibility, authenticity, or probative value. A document may be properly admitted into evidence yet attract little or no evidential weight where the circumstances surrounding its preparation and execution remain doubtful. In the circumstances of this case, the absence of a truly independent witness to the seizure, coupled with the failure to call Wema, who appears to have been a material witness to the recovery process, substantially weakens the reliability of the Certificate of Seizure. These deficiencies go to the very authenticity of the alleged recovery and diminish the evidential value of Exhibit P7 as corroborative evidence against the accused. This concern is further compounded by serious inconsistencies in the chain of custody of the panga. The law requires that once an exhibit is seized, its movement from the point of recovery to its final presentation 20

in court must be clearly, consistently, and continuously accounted for by all custodians. Any unexplained gap or inconsistency in that chain raises doubt as to whether the exhibit remained in an unaltered state throughout. From the evidence on record, PW6 testified that upon seizure, he handed Exhibit P7 to PW3, the exhibit keeper, for safe custody. PW3 confirmed receiving the exhibit and stated that he labelled it with Police Case No. KAU/IR/1002/2023, an exhibit register number, and the offence of murder, after which he retained it until 7th November, 2023 when he allegedly handed it over to PW5. PW5, in his examination-in-chief, testified that he received the panga from PW3. However, in his subsequent recalled testimony, he altered this position and stated that he received it from PW6. This inconsistency is not a minor discrepancy; it goes to the root of custody and directly undermines the continuity and reliability of the exhibit trail. Further, PW6's own evidence appears to contradict PW5's version, as PW6 clearly stated that what he handed over were blood samples. This creates a material gap in the prosecution narrative as to who exactly 21

handled the panga at the critical transition point from police custody to forensic examination. PW9, the Government Chemist from Mwanza, testified that he received Exhibit P7 among other exhibits from PW5, labelled as exhibits A, B, and C. However, the court is left without clarity as to who physically marked the panga as "C" and at what point such marking was done. PW3, who allegedly labelled the exhibits upon receipt, did not indicate marking the panga with such designation. None of the witnesses clearly demonstrated where and by whom the marking "C" was affixed on the exhibit. This creates further uncertainty regarding the identity of the exhibit examined vis-a-vis the one allegedly recovered from the scene. Additionally, PW10 testified that after conducting forensic analysis, Exhibits A and B were destroyed in accordance with procedure, while the panga was retained in the exhibit room until 28th May, 2026, when it was released. However, his evidence was silent on the identity and accountability of the custodian of the exhibit room during the intervening period. Although he later mentioned in clarification that the room is secured and access-controlled, the person responsible for custody during that 22

period was not called to testify. This omission leaves an unexplained gap in the chain of custody after forensic examination. In criminal proceedings, the integrity of physical evidence is fundamental. Where the chain of custody is broken, inconsistent, or inadequately explained, the court is required to exercise heightened caution before placing reliance on such exhibit, as there exists a real possibility of contamination, substitution, or alteration, whether intentional or inadvertent. In the present case, the probative value of Exhibit P7 is significantly weakened by three interrelated deficiencies: the absence of a truly independent seizure witness, the failure to call a material witness linked to the Certificate of Seizure, and material inconsistencies and gaps in the chain of custody from seizure through forensic handling to production in court. Accordingly, when viewed in the totality of the evidence, the Certificate of Seizure and the recovery of the panga do not provide reliable corroboration of the prosecution case, and their evidential weight is substantially diminished. 23

Another aspect that calls for careful judicial scrutiny relates to the manner in which the alleged arrest of the accused person was effected, and more particularly the inconsistencies in the prosecution evidence regarding the search operation and the circumstances leading to his apprehension. PW6 testified that after receiving information at the scene, he mobilised members of the village security group (sungusungu) and divided them into two groups which proceeded in different directions in search of the suspect. According to his account, he accompanied one of the groups and, after some time, received information that a person had been seen hiding in a nearby area. He further stated that the groups converged at that location, where they found a person who appeared to be a stranger, carrying a bag, and who was subsequently identified and brought forward. On the other hand, PW8 testified that while investigations were still ongoing at the scene, information was received that the suspect had been seen at another location, prompting PW6 to leave the scene. PW8 did not elaborate on the structure, number, or coordination of the search teams. 24

However, a material inconsistency arises when PW7 was questioned by the court for clarification. PW7 stated that during the search operation, there were approximately ten people moving together in the same area searching for the suspect. He further stated that he personally led police officers to the place where the suspect was allegedly fled, and that Wema, a civilian, was also part of the group. He specifically contradicted PW6 by stating that there was no division into two groups and that no formal sungusungu structure had yet been established in the village at the material time. This divergence is not a mere discrepancy on peripheral detail; it goes to the root of the credibility of the prosecution narrative on how the accused was located and apprehended. The prosecution evidence presents three materially different versions: PW6 speaks of two coordinated search groups; PW8 refers generally to movement following information received; while PW7 describes a single group of approximately ten persons moving together without formal division. In criminal adjudication, consistency among material witnesses on the circum stances o f arrest is o f significant probative value, particularly where the arrest is closely linked to alleged identification and subsequent evidential recovery. Where such foundational facts are inconsistent, the 25

court is entitled to treat the evidence with caution, as it raises uncertainty as to whether the arresting narrative is reliable or reconstructed ex post facto to fit the prosecution theory. Moreover, PW6's evidence suggests an organised search operation involving structured village security groups (sungusungu), whereas PW7, who was allegedly part of the same exercise, completely negated the existence of such a structure at the material time. This contradiction is not easily reconcilable and affects the overall coherence of the prosecution case regarding the circumstances under which the accused was located and apprehended. Similarly, PW8's account is silent on crucial operational details, including the composition of the search teams, the alleged division into groups, and the exact sequence of events that culminated in the arrest of the accused. This omission, when considered alongside the conflicting testimonies of PW6 and PW7, further diminishes the reliability of the prosecution narrative. The court has also noted another material inconsistency concerning the contents of the bag allegedly recovered from the accused at the time of arrest. PW8 testified that when PW6 returned to the scene with the 26

accused, PW4 was still present. According to PW8, the bag recovered from the accused was opened in their presence and both she and PW4 witnessed the items found therein. However, PW4 gave a completely different account. She denied having seen the bag being opened before her and further denied seeing any of the items allegedly recovered from it. These two versions cannot comfortably stand together. If indeed the bag was opened in PW4's presence and its contents displayed before her, one would reasonably expect her evidence to reflect that fact. Her denial therefore casts doubt on the accuracy of PW8's testimony regarding that aspect of the case. Furthermore, the court cannot overlook the evidence concerning the panga. PW3, PW5, PW6, PW7, PW8, PW9 and PW10 were all consistent in one respect, namely that the panga allegedly recovered from the accused had blood stains on its blade. PW6 and PW7 maintained that the panga was found inside the maroon bag allegedly carried by the accused at the time of arrest. Curiously, however, there is no evidence that the bag itself contained any blood stains. The bag was eventually produced before the court as Exhibit P2, yet no witness testified to the presence of blood stains 27

either on its interior or exterior surfaces. This circumstance raises a legitimate question. If the panga had blood on its blade and had been carried inside the bag, it would ordinarily be expected that some traces of blood would be transferred to the fabric of the bag, particularly in the absence of evidence that the panga had been separately wrapped or secured before being placed therein. No explanation was offered by the prosecution on this apparent anomaly. The court is mindful that minor discrepancies are common in witness testimony and may indeed be expected where several persons recount events from memory. However, where inconsistencies touch upon material aspects of the prosecution case, including the circumstances of arrest, the recovery of exhibits, and the connection between the accused and the alleged murder weapon, such discrepancies cannot be dismissed as trivial. They go to the root of the prosecution narrative and significantly affect its credibility and reliability. In the circumstances, the court finds that the evidence relating to the search operation, the arrest of the accused, and the recovery of the exhibits is marked by material inconsistencies and unanswered questions. Consequently, such evidence lacks the degree of coherence and reliability necessary to provide strong corroboration of either the visual identification 28

evidence or the alleged possession of incriminating exhibits by the accused. Having carefully evaluated the entirety of the prosecution evidence, the question that remains is whether, if the accused person elected to remain silent and no defence were offered, a reasonable tribunal properly directing itself on the law and the evidence could safely convict him on the evidence presently on record. As already discussed, there is no dispute that the death of the deceased occurred. The evidence of PW1, coupled with the post-mortem report (Exhibit PI), clearly establishes that Wande Kabadi is dead. Equally, there is no doubt that her death was caused by unlawful acts of another person. The medical evidence sufficiently established that the death was unnatural and resulted from severe injuries inflicted upon the deceased. The critical issue, however, is not whether the deceased died or whether her death was unlawful. The decisive question is whether the prosecution has adduced credible and reliable evidence linking the accused person to the commission of that offence. On that aspect, the prosecution case is beset by substantial weaknesses. The visual identification evidence suffers from the absence 29

of an Identification parade despite the fact that the accused was admittedly a stranger to PW4 and PW7 prior to 26th October, 2023. The circumstances under which the alleged identification was made were not free from the possibility of error, and the subsequent dock identification adds little evidential value in the absence of a prior identification parade. The evidence relating to the arrest of the accused is marked by material inconsistencies concerning the search operation, the number of persons involved, and the circumstances leading to his apprehension. Equally troubling are the contradictions surrounding the recovery of the bag and its contents, as well as the conflicting accounts regarding whether PW4 witnessed the opening of the bag and the items allegedly recovered therefrom. The evidential value of the panga is likewise considerably weakened. The court has already observed deficiencies in the Certificate of Seizure, the absence of a truly independent witness to the recovery, the failure to call a material witness, and the unexplained inconsistencies affecting the chain of custody. Although forensic analysis purported to connect the accused to the panga, the reliability of that conclusion is inevitably affected where the integrity of the exhibit itself has not been satisfactorily established from the point of recovery to its production before the court. 30

The court is mindful of the principle reiterated by the Court of Appeal in Director of Public Prosecutions v. Peter Kibatala ( supra ) that; ..w e add that it is not even the duty o f the accused to f ill in the gaps in the prosecution case,' This principle is particularly applicable in the present case. The deficiencies identified in the prosecution evidence are not matters capable of being cured by calling upon the accused to enter his defence. To do so would, in effect, require the accused to explain away uncertainties, contradictions, and evidential gaps which the prosecution was under a duty to address in the first place. That is not the function of a defence case in criminal proceedings. The court is therefore unable to conclude that the evidence on record, if left uncontroverted, could reasonably sustain a conviction. The evidence connecting the accused to the offence remains uncertain, inconsistent, and insufficiently reliable. Consequently, no prim a facie c ase has been established against the accused person within the meaning of section 312(1) of the Criminal Procedure Act, [Cap. 20 R.E. 2023]. Accordingly, the court finds that the accused person has no case to answer. He is hereby acquitted of the charge of murder under sections 31

196 and 197 of the Penal Code and shall be released forthwith unless he is otherwise lawfully held. It is so ordered. Dated at Tabora this 8th Day of June, 2026 y M.B Mpaze Judge ORDER: The panga (Exhibit P7) together with a bag and the three torches (Exhibit P3 collectively), having no apparent lawful value in relation to these proceedings, shall be destroyed in accordance with the law. M.B.Mpaze Judge 8 / 6/2026 32

Court: Ruling delivered this 8th day of June 2026 in the presence of Ms. Judith Mwaikasu and Mr. Salyungu Kibinza Learned State Attorneys, Mr. Emmanuel Lazaro learned advocate for the accused and the accused person. Y M.B.Mpaze Judge 8 / 6/2026 33