Republic vs Barnaba Daudi Mtewele (CRIMINAL SESSIONS CASE No. 6799 OF 2025) [2026] TZHC 2966 (3 June 2026)

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA (ORIGINAL JURISDICTION) CRIMINAL SESSIONS CASE No. 6799 OF 2025 CASE REFERENCE No. 202503192000006799 (PI No. 5503 OF 2025 IN THE DICTRICT COURT OF CHUNYA AT CHUNYA) REPUBLIC VERSUS BARNABA DAUDI MTEWELE ................................................... ACCUSED JUDGMENT 11 th May & 3 rd June 2026 TIGANGA, J.: In this case, the accused person, Barnaba Daudi Mtewele, stands charged with three counts, two of which are of murder and the third is of attempted murder. The deceased in the first two counts is Herieth Lupembe and Ivon Tatizo. For easy reference, they will be referred to throughout this judgment as the 1 st and 2 nd deceaseds, respectively. The victim of the attempted murder is Haris Barnabas Daud and shall, for similar purposes, be referred to as PW1. The 1st deceased was a teacher employed by Chunya District Council and stationed at Kiwanja Primary School as her duty station; she 1

was also the biological mother of PWl and a concubine of the accused from whom PW1 was begotten. The second deceased was a teenage girl who was a form one student of Isenyela Secondary school, living with the 1 st deceased, while PW1, a boy aged 7, a son of the 1 st deceased and the accused person. The ist and 2 nd deceased died tragically. The exact time of their death is not certain, but they were found in the evening of 31 st March 2024, in the house in which the ist deceased was living, locked from the outside. They were found with multiple cut wounds, with their bodies lying in the bonds of blood, which flowed from their bodies, and they were found to have died as a result of excessive bleeding. PW1 was found in the same house, unconscious with a severe head injury, where the 1 st and 2 nd deceased bodies were found. From the nature of his injuries, it goes without saying that PW1 survived by the Gods' grace, as after being rescued, he was taken to the hospital, and he remained unconscious for a couple of days before he regained consciousness. To comprehend what led to the predicament in this case, I find it apt to recount the story as told by the witnesses who testified in this case. The story traces back to Sunday, the 3i5t day of March 2024, when the neighbours of the ist deceased noticed that she had not been seen since 2

the morning of that date; not only the neighbours but also her fellow church members were worried about her not showing up , even in church. Following her non-appearance, both in the church and the vicinity, as she usually used to, neighbours and fellow church members started to search for her. At her home, the house was closed, but with the outside electric light on. They tried to reach her through her mobile phone number in vain, for her phone was not reachable. Having failed to reach her, they tr i ed to call whoever they thought could know her whereabouts, but nobody for sure had knowledge of where she was and what had befallen he r. It was after they searched her in vain that they, in the evening of that day, decided to involve the local leader, PWS - Isaya Msemwa Manyanya (Hamlet leader), who, while moved by the surrounding circumstances, supervised the breaking of the rear door of the house in which the pt deceased was living. When they broke into the house, they found the 1 st and 2 nd deceased bodies on the floor, lifeless, while surrounded by blood. Further looking at the other part of the house, they saw PW1, who was unconscious. They reported the matter to the police and rushed PWl to the Chunya District Hospital, where, upon being given first aid, he was referred to Mbeya Referral Hospital, where he was 3

admitted for some days before gaining consciousness. He was later taken to Benjamin Mkapa Referral Hospital for further treatment. After receiving the report of the incident, PW?, the Officer commanding criminal investigation of Chunya District, while in the company of PW6 and other police officers, went to the scene of the crime, where they drew the sketch map of the scene of the crime, collected the exhibit they found at the scene and collected the bodies of the 1 st and 2 nd deceased, and sent them to the mortuary of the Chunya District Hospital. According to PW?, upon assessment of the scene of the crime and the way the offence was committed, he was of the view that the person who committed the offence was familiar to the victims. It is possible that some of the victims were not the target, but their killing was with the intent to eliminate the evidence likely to implicate the suspect. At first, the accused was arrested on suspicion based on the fact that he sent a person to the hospital where the child was taken to observe whether the child, PW1, was still alive or dead. However, later he was charged following the fact that after full recovery, PW1 told his maternal aunt, who was taking care of him, that it was his father who killed the 1 st and 2 nd deceased and injured him. 4

Following that state of affairs, the accused was charged with three counts, the first two counts are for the murder of Herieth Lupembe and Ivon Tatizo, respectively, contrary to sections 196 and 197 of the Penal Code, [Cap. 16 R.E. 2023]. The third count is for the attempted murder of Haris Barnaba Daudi, contrary to section 21 lA of the same Penal Code. 05 th May 2025, when the Accused was arraigned before this Court, Nongwa, J, for plea taking and preliminary hearing, he pleaded not guilty and admitted to his personal particulars and being a co-parent with Harrieth (1 st deceased to Harris Barnaba. Further, when he was reminded of the charge on 8th May 2026, he pleaded not guilty to all three counts, following which the court entered a formal plea of "Not Guilty." That plea necessitated the prosecution proving its case beyond a reasonable doubt. In the effort to do so, the prosecution called eight witnesses and tendered four exhibits. Throughout the trial, the Republic was represented by a team of four State Attorneys, namely Mr. Rajabu Msemo, Mr. George Ngwembe, Dominic Mushi, and Florence Mwang'onda. The Accused was present in court, and he was represented by Ms. Joyce Kasebwa, learned Advocate, as the defence counsel. The key evidence presented by the prosecution is summarised as follows. 5

The prosecution's evidence pivots on the evidence of PWl - Haris Barnaba Daudi, a 7-year-old child of tender age, and it is likely to fail or succeed based on that evidence. His testimony was received without oath after the court had been satisfied that he did not understand the meaning and nature of an oath, but understood the importance of speaking the truth and actually promised to speak the truth, not lies, as required under section 127(2) of the Evidence Act [Cap. 6 R.E 2023]. He testified that on the material night, the Accused, who is his father, came to their home, ate food, left, and later returned. On his father's re turn, his mother, the 1 st deceased, opened the door for him, after which the Accused began attacking t hem. He testified that the Accused cut his mother and sister, the 1 st and 2 nd deceased, with a panga and su /ulu, and hit him on the head with a sululu, causing a scar that he showed to the court. He identified the Accused in the dock as the perpetrator. Under cross-examination, though he was a bit inconsistent on that issue, however, during re examination, he maintained that although uncle Gudi and Baba Gift were coming home to see his mother, and they were sometimes entering his mother's room, it was his father, Barnaba, and not "Uncle Gudi" or "Uncle Gift," who killed his mother and sister and injured 6

him. He said he told those facts to his mother, the person who was taking care of him in Iringa. The other evidence is of PW2, PW2, Dr. John Gungumuka, who testified that he performed post-mortem examinations on the bodies of the 1 st and 2 nd deceased at Chunya District Hospital. In his evidence, he said, after the bodies of the deceased were placed in the mortuary by PW7 and other police officers. He was assigned a duty to conduct a postmortem examination report over the bodies of the pt and 2 nd deceased. In his findings after the examination, he found that both deaths were caused by severe haemorrhage (excessive blood loss) resulting from multiple cut wounds to the head and face, inflicted by a sharp object. The Post-Mortem examination Reports were admitted as Exhibits Pl and P2. It is also evident that, before conducting the post-mortem examination, the body of the 1 st deceased was identified by PW4, Geofrey Jordan Kibasa, who introduced himself as a cousin brother of the deceased, and a teacher at Kising'a Primary School in Kilolo District. He testified how he travelled to Chunya on 02/04/2024, and went straight to Chunya District Hospital and witnessed the post-mortem examination of the body of the 1 st deceased, who happened to be his late sister, which was conducted by the medical Doctor in the presence of police officers. He described the 7

way he saw the body of the 1 st deceased, which was with multiple cut wounds, and what the doctors found and told them to be the cause of death of the deceased. He stated that the deceased had two children: Evance Chura and Haris Barnabas. Under cross-examination, PW4 said he did not know who caused the death of the deceased, and that he did not know the Accused, and that he had never received any complaint from the 1 st deceased regarding her husband. The evidence of PWl was supported by the evidence of PW3 - Agrey Raja bu Makule, a relative of the 1 st deceased who also testified how they got informed of the death of the 1 st deceased, the way they travelled to Chunya, carried the bodies of the deceased, and went to conduct the burial in their home village. He testified that after the PWl had recovered consciousness and regained his memory, he told his aunt and later himself, before he also told the police later that "Baba alimpiga mama, akampiga dada, akanipiga na mimi kichwani" (my father beat my mother, beat sister, and beat me on my head). According to him, after being so told, they informed the police, who told them to come to Mbeya together with PWl to record their statement. He informed the court that PWl was consistent in mentioning the accused Barnaba Daudi as the attacker. 8

The other evidence was given by PWS: Daudi Matokeo, a medical doctor, who attended to PWl at Chunya District Hospital on 31/03/2024. According to him, he received the PWl while unconscious with a cut wound on the head caused by a sharp object, and he conducted an X-ray test, which revealed a skull fracture. Following the PWl's condition, he referred him to Mbeya Referral Hospital, and before filling in the Police Form No. 3 (PF3), which was admitted as Exhibit P3. PW6 - D/CPL Humphrey, a police officer, stated in his evidence that he was among the first police officers who went to the scene of the crime in the co mp any of PW7. He described finding the two bodies, surrounded by blood stains, in the house that was used by the 1 st and 2 nd deceased. He also said the way they found a blood-stained sululu without a handle next to the body of the ist deceased. He also informed the court that under the instruction of PW7, his boss, he drew a sketch map of the scene, which was admitted as exhibit P4. He also told the court about the way he participated in carrying the body of the deceased to the Chunya District Hospital Mortuary. Last but one was PW7 - SP Halifa William Ngonyani, a police officer in charge of the investigation of Chunya District (OC CID). According to his evidence, he led the investigation of the case at hand. He testified to the 9

way he received the information about the murder of the ist and 2 nd deceased. That, after that information, he went to the scene of the crime in the company of other police officers and found the bodies of the 1 st and 2 nd deceased. The way he inspected the scene and collected initial evidence at the scene. He gave his view that, after inspecting the scene, he was of the view that the attacker was known to the victims. And that the killing of some of the victims, in his view, was intended to eliminate the evidence against the perpetrator. He further testified about the way they collected the bodies of the 1 st and 2 nd deceased and took them to the Chunya District Hospital mortuary. He stated that after keeping the bodies, they went to the hospital to look at the condition of the child, who they were told was rescued and taken to the hospital, and they way they were prevented from seeing him by those who were attending him because he was in a very bad condition, therefore they could not see him. He also stated that after the incident, the accused did not come directly to the hospital but sent a person named Masanja to check if the child, PWl, was alive or dead, a conduct which he found suspicious. He said that it was following that conduct, he arrested the Accused on 01/04/2024. He confirmed that the child, Haris, upon regaining consciousness, directly implicated his father, the Accused, as the one who committed the offence against him and the 1 st and 2 nd deceased. 10

The prosecution then closed its case, whereafter, this court, in a ruling delivered on 11th May 2026, found under section 312(3) of the Criminal Procedure Act [Cap. 20 R.E 2023] that a prima facie case had been established against the Accused and he was found with the case to answer. The Accused was accordingly called upon to enter his defence, which he did by defending himself on oath and also called three additional witnesses (DW2, DW3, DW4) to defend him. Primarily, his defence was hinged on the defence of alibi. DW1 - Barnaba Daudi Mtewele (the Accused) denied the charges in their entirety. He stated that on 30th March 2024, from 19:00 hours to midnight, he was at the Anglican Church in Chunya town attending an Easter Vigil service and acting as a baptism sponsor (guardian). He claimed he did not go to the deceased's home that night. He sought to tender a letter confirming his presence, but the objection was upheld as the document was already a notice on record. He claimed to have been arrested on 01/04/2024 at his home based on suspicion. He asserted that he does not know the persons called "Gift" and "Baba Gudi" and did not send anyone to the hospital. The accused's defence evidence was supported by DW2 Joyce Msigwa, who testified that she was at the church on the material night for 11

the baptism of her child, Noel. She stated that the Accused and his wife, Maria, were present too as the baptism sponsors. She tendered a Baptism certificate (Exhibit D1) to prove the Accused's presence in church. Though the said exhibit was objected to by the prosecution, the court overruled the objection and admitted the document as an exhibit. Further evidence to support his defence was the testimony of DW3, Reverend John Mapunda, an Anglican Church clergyman who testified that he conducted the Easter Vigil service and baptisms on 30/03/2024 at Chunya Anglican Church, which was by then his duty station. He confirmed that the Accused and Maria Mgina, the Accused's wife, were present as sponsors for a child named Noel. He explained that the Baptism Certificate (Exhibit D1) was filled out and signed by his successor, as he had already been transferred to another duty station by the time it was issued. The last defence witness was DW4, Arton Joseph Kayombo, a Chunya Anglican Church Secretary. He testified that he was at the church from 17:00 hours on 30/03/2024 until the end of the vigil service. He confirmed seeing the Accused at the church throughout the service, from 19:00 hours to about 24:00 hours. 12

That marked both the prosecution and defence cases. I find it apt at this point to point out that the accused is charged with two counts of murder and one count of attempted murder. For the murder offence, he is charged under sections 196 and 197 of the Penal Code, while for attempted murder, contrary to section 211 of the same law. According to the said sections, particularly those creating the offence of murder, the accused is deemed to have committed the offence of murder if he causes the death of another person by an unlawful act or omis sion and with malice aforethought. The term Malice aforethought as used in section 196, has been defined by section 200 of the Penal Code (supra) and has been interpreted in the case of Bomboo Amma and Petro Juma @ Lanta vs The Republic, Criminal Appeal No. 320 of 2016, CAT Arusha (unreported), to mean any evidence proving any one or more of the following circumstances; (i) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not; (ii) the knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually 13

killed or not although that knowledge is accompanied by indifference to whether death or grievous bodily harm is caused or not or by a wish that it may not be caused; (iii) an intent to commit an offence punishable with a penalty that is graver than imprisonment for three years; (iv J an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit an offence. Gathering from the summary of the proceedings, in this case, the relevant parts are paragraphs (a) and (b) of section 200 cited above. Learning from the two paragraphs of this provision, and the decisions of The Republic vs Shimbi Daud @ Kulwa & Others, (Criminal Session Case 9 of 2019) [2020] TZCA 1931 (6 November 2020) while citing the case of The Republic vs Masunga Nzengo, Criminal session case No. 46 of 2019 (unreported) highlighted the four elements of the offence of murder that are to be proved in terms of Section 196 of the Penal Code. The said elements in particular to this case are: One, that the said Herieth Lupembe and Ivon Tatizo died, and their death were not natural; two, the deaths were caused by an unlawful act or omission; three, in causing death, the person causing it acted with malice aforethought; and four, that it is the accused who caused deaths of the 1 st and 2 nd deceased . 14

Also see the case of Chacha Ghati @ Gobita vs. The Republic, Criminal Appeal No. 682 of 2020 [2024] TZCA In cases such as these, it is always the prosecution that has to prove the case to the standard beyond reasonable doubt. That burden never shifts. See the case of Mohamed Matula vs The Republic [1995] TLR 3, where it was held that; "Upon the charge of murder being preferred, the onus is always on the prosecution to prove not only the death but also the link between the said death and the accused,· the onus never shifts away from the prosecution and no duty is cast on the appellant to establish his innocence. N This principle was also affirmed in Simon Edson @ Makundi vs The Republic (Criminal Appeal 5 of 2017) [2020] TZCA 1730 (18 August 2020), Nchangwa Marwa Wambura vs The Republic (Criminal Appeal No. 44 of 2017) [2019] TZCA 459 (11 December 2019). With regard to the third count of attempted murder under attempted murder contrary to section 211(1) and (2) of the Penal Code. It reads: "Any person who (a)attempts unlawfully to cause the death of another; or (b) with intent to unlawfully cause the death of anothe0 does any act or omits to do any act which it is his duty to 15

do/ the act or omission being of such a nature as to be likely to endanger human life/ commits an offence and shall be liable to imprisonment for life." In interpreting this section, the Court of Appeal of Tanzania, in Samweli Jackson Saabai @Mng'awi and Two Others vs The Republic, Criminal Appeal NO. 138 OF 2020 CAT At Musoma, relied on the case of Hamis Tambi vs The Republic, [1950] 20 EACA 176, and Bonifas Fidelis @Abel vs The Republic, Criminal Appeal No. 301 of 2014 (unreported), where the Court held reciting essential ingredients to prove intent to kill in a charge of attempted murder to mean; "We must hasten to point out that section 211 (a) is not a standalone provision insofar as all the ingredients of attempted murder are concerned. The word ''attempt " which is mentioned under section 211 (a/ is defined under section 380 of the Penal Code. This means/ to appreciate the scope of the ingredients of the offence of attempted murde~ sections 211 (a) and 380 must be read together." Thus, from the above provisions, when deliberating on the charge of attempt to murder, section 380 of the Penal Code has also to be considered. Section 380 states: 16

''380. -(1) When a person intending to commit an offence/ begins to put his intention into execution by means adapted to its fulfillment and manifests his intention by some overt act but does not fulfill his intention to such extent as to commit the offence/ he is deemed to attempt to commit the offence. (2) It is immaterial except so far as regards punishment whether the offender does all that is necessary on his part for completing the commission of the offence/ or whether the complete fulfillment of his intention is prevented by circumstances independent of his will or whether he desists of his own motion from the further prosecution of his intention. 11 In the case of Bonifas Fidelis (supra), the Court went on to further summarize what they found to be the four essential ingredients of attempted murder arising from section 211 (a) read together with section 380 of the Penal Code, as follows: "Firstly, proof of intention to commit the main offence of murder. Secondly, evidence to prove how the appellant began to employ the means to execute his intention. ThirdlYt evidence that proves overt acts that manifest the appellant's intention. FourthlYt evidence proving an intervening event which interrupted the appellant from fulfilling his main offence/ to such an extent that if there was no such interruption/ the main offence of murder would surely have been committed 11 17

From the evidence on record, the following issues arise for determination:

1. Whether the deaths of Herieth Lupembe and Ivon Tatizo, and the injuries to Haris Barnaba Daudi, were unlawfully caused.
2. Whether it was the Accused, Barnaba Daudi Mtewele, who caused the said unlawful deaths and injuries.
3. Whether the alibi defence raised by the Accused is credible and sufficient to create a reasonable doubt in the prosecution's case.
4. Whether the prosecution has proved all the charges against the Accused beyond a reasonable doubt I have carefully cons ider ed the evidence adduced by both sides, the exhibits tendered, and the submissi ons made. My analysis is as fo l lows : Si nce murder is a criminal offence, the l aw requires that it be proved beyond reasonable doubt. This requirement is provided under section 3(2)(a) of the Evidence Act, Cap. 6 R.E . 2002. The standard of proof beyond reasonable doubt is a well-established legal principle and not merely a creation of the courts. T he principle has been reiterated in several decisions, including Said Hemed vs The Republic [1987] TLR 117, where the Court stated that: ".. .in criminal cases, the standard of proof is beyond reasonable doubt . Where the onus shifts to the accused, it is on a balance of probabilitie s. " 18

To begin with, the unlawful deaths and injuries (Actus Reus). There is overwhelming and uncontroverted evidence on this point. PW2 (Dr. Gungumuka) performed post-mortems and concluded that both deceased persons died from severe haemorrhage due to multiple sharp-force injuries to the head. PWS (Dr. Matokeo) confirmed that the surviving child, Haris, sustained a cut wound and skull fracture. The discovery of the bodies in pools of blood, as testified by PW6, PW7, and PW8, corroborates this. The sululu without a handle found at the scene, as described by PW6 and PW7, is consistent with the weapon used. The law in relation to malice aforethought is settled that the same can be inferred from several factors. The Court of Appeal of Tanzania in the case of Enock Kipala vs The Republic, Criminal Appeal No. 150 of 1994, stated inter alia, that; fl .............. usually, an attacker will not declare his intention to cause death or grievous harm. Whether or not he had that Intention must be ascertained from various factor~ including: (1) the type and size of weapon if any, used in the attack. (2) the amount of force applied in the assault; (3) a part or parts of the body where the attacks were directed, and ( 4) the conduct of the attacker before and after the killing. fl 19

I therefore find that the deaths and the serious injury were unlawful and were caused by an act of violence, which also proves that the perpetrator committed the offence with the malice aforethought. It should also be borne in mind that, in criminal cases, the prosecution needs to prove not only the facts that the criminal offence was committed, but also that it was committed by the accused person charged in the case under scrutiny. This legal proposition was held in the case of Nyanchobe Ryoki @ Gunza vs The Republic (Criminal Appeal 250 of 2019) [2023] TZCA 220 (4 May 2023), it was held by the Court of Appeal, reaffirming that position inter alia that; "We wish to reaffirm the elementary principle of law that in criminal cases the duty of the prosecution is twofold. One/ to prove that the offence was committed, and two/ that the accused is the one who committed it. See/ for instance/ the case of Maliki George Ngendakumana vs The Republi~ Criminal Appeal No. 353 of 2014 [2015] TZCA 295 (24 February 2015) [2015] TZCA 295.// On the second issue, namely the identity of the perpetrator ( mens rea), this is the core issue for determination. The prosecution's case hinges on the direct eyewitness testimony of PWl, Haris Barnaba Daudi. In the case of Musa Kehanga @ Chacha vs The Republic (Criminal 20

Appeal No. 537 of 2022) [2025] TZCA 266 (24 March 2025), which cited the case of Felician Joseph vs. The Republic, 2011 [TZCA] 152 (28 May 2012), (TANZLII), the Court of Appeal stated that; "It is a mundane truth that the criminal justice system relies heavily on eyewitnesses to determine the facts surrounding criminal events. Eyewitnesses may identify culprits, recall conversations, or remember other details. An eyewitness who has no motive to lie is a powerful form of evidence for jurors, especially if the eyewitness appears to be highly confident about his or her recollection. In the absence of definitive proof to the contrar½ the eyewitness's account is generally accepted by the police, prosecutors, judges, and juries. " The law on the evidence of a child of tender age is well-settled. Section 127(2) of the Evidence Act, Cap. 6 R.E. 2022, provides that a child of tender age may give evidence without an oath if the court is satisfied that they understand the duty to speak the truth. This court took the necessary precaution, examined PWl, and found that although he did not understand the nature of an oath, he understood the difference between truth and lies and promised to tell the truth, not the lies. His testimony was therefore properly received . PWl unequivocally stated in his evidence that: • '1My fathe,; Barnaba, came and killed them at home. I saw him. " 21

• ''He cut my mother with a panga and a su!ulu. " • ''He also hit me on the head with a su/ulu, here. "(Pointing to a scar). This testimony alone, if believed, is sufficient to convict. Though when subjected to rigorous cross-examination by Ms. Kasebwa, sometimes shook him, PWl was consistent when he was re-examined by the learned State Attorney. He maintained that it was his father who killed the 1 st and 2 nd deceased and injured him, and not "Uncle Gudi" or "Baba Gift, 11 whom he mentioned as other visitors to the house. The scar on his head, shown to the court, is independent corroboration of his account of the attack. This direct evidence is powerfully corroborated by: One, the testimony of PW3 (Agrey Makule), a relative, who told the court that as soon as the child regained consciousness and memory, he told his aunt that "Baba" (father) was the attacker. Two, the circumstantial evidence from the scene: the house was locked from the inside, the lights were on, and there were no signs of forced entry at the front. This indicates the assailant was let in by a person known to the deceased, which PWl confirms happened when his mother opened the door for the Accused. In Julius s/ o Justine and 4 Others vs The Republic (Criminal Appeal No. 155 of 2005) [2007] TZCA 237 (19 April 2007), this case cited R vs. Sabudin Merali 22

& Umedali Merali, Uganda High Court Criminal Appeal No. 220 of 1963 (unreported): "... it is no derogation to say that it was so; it has been said that circumstantial evidence is very often the best evidence. It is the evidence of surrounding circumstances which by undesigned coincidence/ is capable of proving a proposition with the accuracy of mathematics. " Third, the Accused's own conduct, as testified by PW7, the Accused did not rush to the hospital to see his injured son. Instead, he sent a tenant, Masanja, to inquire if the child was dead or alive. This is not the normal reaction of an innocent father and was rightly treated by the investigating officer as suspicious. Fourth, the fact that the report was made after the PWl had gained consciousness and memory is an important assurance that none of those who testified had the intent to frame the case against the accused, for had they intended to frame the case against him, they would have done so before PW1 had gained consciousness and recovered his memory. On the third issue, on the defence of alibi, the Accused raised an alibi, claiming he was at church at the time of the offence. In our law, alibi is a statutory defence provided under section 200( 4)(5)(6) of the Criminal Procedure Act [Cap. 20 R.E 2023]. Subsection 4 provides that, where an 23

accused person intends to rely upon an alibi in his defence, he shall give to the court and the prosecution a notice of his intention to rely on such defence before the hearing of the case. In this case, the accused did, on 07 th March 2026, two months before the hearing, give notice of his intention to rely on the defence of alibi to the court and the prosecution. The law on alibi is that the burden of proof never shifts from the prosecution . The defence does not have to prove the alibi, but must raise a reasonable doubt. The defence was hinged on the fact that the accused was at the time when he is alleged to have committed the offence, in church attending vigil service in Anglikan church at Chunya in which he acted as the godfather of Noel a son of Joyce Msigwa, DW2, and so said John Mapunda, DW3, a Reverend father of Anglikan church, who at the time when the offence was committed, he was a pastor at Chunya Anglikan Church as well as Arton Joseph Kayombo, DW4 who identified himself as the Secretary at Chunya Anglikan Church, all said from 19.00hrs to 24.00hrs the accused was in church. However, DW2, DW3, and DW4 said they did not know where the accused went after the vigil. To prove that the accused was at the church, they also tendered the baptism certificate, as exhibit DEl. When this ce rt ificate was tendered, it was objected on the ground that the same was 24

not attached to the notice of intention to rely on the defence of alibi. This court overruled the objection on the ground that the fact that it was not attached to the Notice of alibi does not affect its admissibility where the law under section 200 has been complied with. The court went on holding that the objection related to the weight of the said exhibit, which would be determined during the judgment. The requirement of the defence to give notice to the prosecution and the court had philosophical purposes to mention but a few, one, to prevent trial by ambush, two, to give law enforcement time to investigate the alibi, verify timestamps, and possibly interview the claimed witnesses to ensure that the prosecution is not taken by surprise. That means the notice of alibi must give sufficient details to enable the prosecution to investigate the truthfulness of the claim that he was elsewhere at the time when the offence was committed. In my considered view, the notice must state where the accused was, what he was doing, at what time he was there, and if he was with other persons, then he should mention the persons who were with him at the time he was there. Now, looking at the notice that was issued in this case, it read, " TAKE NOTICE that at the hearing of the above/ the accused persons will rely on the defence of alibi and will bring Evidence to that effect" In my 25

considered view, the notice has not sufficiently provided the necessary details as to where the accused was, what he was doing, at what time he was there, and in whose company. Lack of these important details renders the notice deficient of important details and therefore makes it not a notice intended under section 200( 4) and (5) of the Criminal Procedure Act. Besides being without details, the certificate tendered as exhibit Pl was not attached; if that one was attached, it would have at least hinted to the prosecution that the alibi was to do with the church attendance, and therefore they would have investigated into the truthfulness of the said alibi. Short of that, it can be safely concluded that the prosecution was taken by surprise, therefore prejudiced. Even if I decided to consider the alibi in terms of section 200(6) of the CPA, by considering the testimony of DW2, DW3, and DW4, I still find the same to be unconvincing for the following reasons: one, the Alibi Notice was served, but the specific details, such as the Baptism Certificate (Exhibit D1), were not disclosed. This denied the prosecution a fair opportunity to investigate the document's authenticity, a fact noted when the court overruled the objection but allowed the document on record. In Moi Ikwabe Matiko@ Moi vs The Republic, (Criminal Appeal No. 491 26

of 2020) [2024] TZCA 625 (19 July 2024), the Court of Appeal in that judgment affirmed the following excerpt proposed by this Court as a correct position of the law. "Ordinaril½ the principle governing the defence of alibi was designed to enhance the rule of disclosure. It is intended to disclose the defence to the investigator and the prosecutor, for them to in vestigate on the truthfulness of the defence and take appropriate action or prepare a counter to it. Failure so to give notice at the appropriate stage denies the prosecution the opportunity to prepare to challenge. "[Empaasis added] In the same spirit, issuing a notice without disclosing the particulars of the alibi, of where the accused alleges to be at the time when the offence was committed, and what he was doing, is tantamount to failure to give notice, as the same denies the prosecution an opportunity to investigate the truthfulness of the defence and take appropriate action or prepare to counter a counter to it. Moreover, there are contradictions in the defence case: DWl (Accused) stated the service ended at midnight (24:00 hours). DW3 (Rev. Mapunda) and DW4 (Kayombo) stated it ended at about 24:30 hours. This is a minor inconsistency, but a more serious one is the date on the certificate. DW3 admitted the certificate was issued on 11/10/2025 , over 27

a year after the incident and after the Accused's arrest. DW2 admitted she received the certificate after the Accused's arrest. A document generated so long after the event to prove presence on a specific date, especially when the church register (the primary record) was not produced, is of very little evidential value. The failure to produce the church register is a fatal omission under section 122 of the Evidence Act, as it would have been the best evidence. There was also a lack of independent confirmation, as none of the defence witnesses testified that the Accused was with them for the entire evening from 19:00 to 24:00 without any break. DW3 (Rev. Mapunda) and DW4 (Kayombo) both admitted they did not know where the Accused was before coming to church, nor where he went immediately after the service ended. The offence occurred at the victim's home, which PW7 testified was in Kiwanja Village, and a court takes judicial notice that it is a distance possible to travel from a church in Chunya town to a house in Kiwanja Village within a short period. The alibi does not account for the entire night. It should also be noted that the prosecution's case is to the effect that the offence was committed on the night of 30 th March 2024; it has not mentioned that it was committed before 24.00 hours. This is because 28

the bodies of the p t and 2 nd deceased were recovered in the evening of the following day, on 31 st March 2024. Furthermore, contradicts the strong prosecution evidence, most importantly, the alibi is directly contradicted by the credible, sworn, and cross-examined testimony of PWl, a child who had every reason to know his own father. A child of seven years does not easily forget the face of his father, who attacked him in the night. When weighed against the direct evidence of PW1, the alibi collapses as it fails to shake the prosecution's case. Further, even though the defence has no duty to prove that the alibi was true and that the accused is innocent, but to raise a reasonable doubt the principle is that an alibi that is supported by supporting evidence of a person or persons who allege to be with the accused at the place he claims to be at the time the offence was committed, strengthens the said alibi. In Moi Ikwabe Matiko @ Moi vs The Republic, (Supra), the Court of Appeal held while trying to cement on that point that; "We took a similar position in the case of Kubezya John v. Republic (Criminal Appeal No. 488 of 2015) [2019] TZCA 472 (12 December 2019/ TANZLII) in which we cited with approval the High Court decision in Masudi Amlima v. Republic [1989] T.LR. 2 5 ✓ in which it held: 29

"The appellant's defence of alibi was properly rejected. He did not give the notice required under section 194 ( 4) of the Criminal Procedure Ac~ 1985, and he did not call the person he claimed was with him at the time of the commission of the offence'~ [Emphasis added] In the case at hand, the evidence given in support of the alibi by DW2, DW3, and DW4 did not cover the whole period within which the offence was circumstantially committed. It ends at 24.00 hours in the mid night. However, the accused, who said he went to his home with his wife, did not call his wife to testify to prove that allegation. In my view, had he called his wife as a witness, he would have probably managed to shake the prosecution's case, which he failed to do. I have assessed the evidence as a whole. The testimony of PWl, Haris Barnaba Daudi, is compelling, credible, and reliable. He was an eyewitness to the brutal murder of his mother and sister and the attempted murder of himself. His testimony is corroborated by medical evidence, the scene of the crime, and his own injury. The Accused's conduct after the incident was that of a guilty person. The alibi raised by the defence is a mere afterthought, unsupported by the best evidence (the church register), and is insufficient to cast a reasonable doubt on the otherwise watertight prosecution case . 30

Section 117 and 118 read together with section 3(2) (a) of the Evidence Act [Cap 6 R.E .2019] provides for the burden and standard of proof in criminal cases. All these sections provide that the burden of proof is on the prosecution and the standard of proof is beyond a reasonable doubt. These provisions have been interpreted by a number of case authorities, a few of which are Woodimington vs DPP (1935) AC 462, Mwita & Others vs The Republic, [1977] L.R.T. 54, and Maliki George Ngendakumana vs The Republic, (supra) · The term 'beyond reasonable doubt' is not statutorily defined, but has been defined by case law. In the case of Magendo Paul and another vs The Republic [1993] T.L.R 219 (CAT), it was held inter alia, that; ': .. for a case to be taken to have been proved beyond reasonable doubt its evidence must be strong against the accused person as to leave only a remote possibility in his favour which can easily be dismissed. " This was held in line with the philosophy in the case of Chandrankat Jushubhai Patel Vs The Republic, Crim. App No 13 of 1998 (CAT DSM), in which it was held that; ': . .remote possibility in favour of the accused person cannot be allowed to benefit him. Fanciful possibilities are 31

limitless/ and it would be disastrous for the administration of criminal Justice if they were permitted to displace solid evidence or dislodge irresistible inferences. " From my findings above, and looking at the evidence, it goes without saying that the prosecution has managed to prove the case beyond reasonable doubt. The evidence presented against the accused person is very strong in proving his guilt. In my evaluation of such evidence, I have not managed to locate any possibility in favour of the accused person. If there is any such possibility which has escaped my attention, then the same is so remote, and is incapable of displacing solid evidence as presented by the prosecution or dislodging irresistible inference against him. I find, beyond any reasonable doubt, that the Accused, Barnaba Daudi Mtewele, with malice aforethought, did unlawfully kill Herieth Lupembe and Ivon Tatizo. I further find that he did an act with the intent to cause the death of Haris Barnaba Daudi. Consequently, upon a careful evaluation of the entire evidence on record, I find the prosecution's case to have been proved beyond reasonable doubt against the Accused person on all counts. Accordingly, on Count 1, concerning the murder of Herieth Lupembe, the Accused is 32

found guilty and convicted under sections 196 and 197 of the Penal Code [Cap 16 R.E. 2023], while on count 2, concerning the murder of Ivon Tatizo, the Accused is likewise found guilty and convicted as charged under the same provisions of the same law, and on Count 3, relating to the attempted murder of Haris Barnaba Daudi, the Accused is also found guilty and convicted as charged under section 211 of the Penal Code. It is accordingly ordered. DATED and delivered at MBEYA on the 03 rd day of June 2026 JUDGE Court: Judgement delivered in open court in the presence of the accused, his Advocate, and the State Attorney on coram JUDGE SENTENCE: For the 1 st and 2 nd counts, the law has no other sentence provided other than the one provided under section 197 of the Penal Code Cap 16 R.E 2023. For that reason, the only sentence is the one provided under the statute; That said, I hereby sentence the accused to death by hanging, in 33

the 1 st and 2 nd counts under section 197 of the Penal Code [Cap. 16 R.E 2023]. Regarding the 3 rd count, and taking into account the extent of injury sustained, I sentence the accused to ten years imprisonment under section 211 of the Penal Code Cap 16 R.E 2023. It is accordingly ordered. J.C TIGANGA JUDGE Court: Sentence pronounced in open court in the presence of the accused, his Advocate, and the State Attorney as per coram. ~~ J.C T IGANGA JUDGE 34