CRIMINAL APPEAL NO 351 OF 2022 AHAZI KILOWOKO VERSUS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA (CORAM: KEREFU, J.A., MGONYA, J,A. And MLACHA. 3.A.1 CRIMINAL APPEAL NO. 351 OF 2023 AHAZI KILOWOKO......... .................................... ..........APPELLANT VERSUS THE REPUBLIC .................... ...... .................. ...RESPONDENT (Appeal from the Decision of the High Court of Tanzania, at Iringa) fUtamwa, 3.) dated the 4thday of November, 2022 in Criminal Sessions Case No. 102 of 2016 JUDGMENT OF THE COURT IF- & 17thMarch; 2025 KEREFU. 3.A.: AHAZI KILOWOKO, the appellant herein, was arraigned before the High Court of Tanzania sitting at Iringa for the offence of murder contrary to section 196 of the Penal Code, Cap. 16 of the Revised Laws, in Criminal Sessions Case No. 102 of 2016. The information laid by the prosecution alleged that, on 1st April, 2016 at Kiiolo Village within Mufindi District in Iringa Region, the appellant murdered his father-in- law one Thadei Lukungu (the deceased). The appellant pleaded not guilty to the charge. However, after a full trial, he was convicted and sentenced to suffer death by hanging. It is noteworthy that, initially, the trial of the appellant was conducted before Matogolo, J. who, after hearing the evidence of two prosecution witnesses and the appellant who was the only defence witness, he found that the prosecution had proved its case to the required standard and thus found the appellant guilty of the offence charged and proceeded to sentence him as indicated above. On appeal to this Court vide Criminal Appeal No. 254 of 2019, the Court nullified the trial court's proceedings, quashed the conviction and set aside the sentence meted out against the appellant on account of failure by the learned trial Judge to address and direct the assessors on the vital points of law concerning the repudiated confession and the defence of alibi. Consequently, the Court ordered a trial de novo before another Judge and a different set of assessors. Following the above decision of the Court, hearing of the case commenced afresh before Utamwa, J. At the trial de novo, the prosecution relied on the evidence of three witnesses and three documentary evidence, namely, the sketch map of the scene of crime (exhibit PI); the appellant's extra-judicial statement (exhibit P2) and the postmortem examination report (exhibit P3). The appellant relied on his own evidence as he did not call any witness. The brief facts of the case that led to the appellant's arraignment, conviction and sentence as obtained from the record of appeal are not complicated. They go thus, on 2nd April, 2016, the body of the deceased Was found lying in the sitting room of his house at Kilolo Village. The incident was reported to the police and immediately thereafter, investigation was carried out to establish the cause of the deceased's death. No. E.9803 D/SGT Pendo (PWl), was one of the police officers who conducted the investigation. He testified that, on 2nd April, 2016 together with other police officers and Dr. Valentino Chaula (PW3), they went to the scene of crime where they found the deceased's body lying near the outdoor of his house bleeding profusely due to big cut wounds on the head. PW3 examined the deceased's body and concluded that his death was due to severe cerebral bleeding caused by severe multiple head injuries on his scalp. A postmortem report to that effect was admitted in evidence as exhibit P3. PWl went on to state that, she interviewed different people who were at the scene of crime. That, through the said interviews, the appellant was named as a suspect on account of having been heard complaining, prior to the date of the incident, that the deceased, who was his father-in-law, was bewitching his wife and children. Thus, the appellant was traced but could not immediately be found. He was later, on 25th June, 2016, arrested by militiamen and taken to Kilolo Village authorities who, thereafter informed the police. Consequently, on 26th June, 2016, upon the directive of the OC-CID, the appellant was brought at Mafinga Police Station. PW1 testified further that, she interrogated the appellant and recorded his cautioned statement and prepared a sketch map of the scene of crime (exhibit PI). Thereafter, on 28th June, 2016,. PW1 took the appellant to Sekela Eden Kyungu (PW2), the Justice of Peace and a Primary Court Magistrate, who was, at the material time, stationed at Mafinga Primary Court, to record his extra judicial statement (exhibit P2). In his defence, the appellant denied the charge. He contended that he learnt about the death of his father-in-law after having been informed by one Petro Moto on 1st April, 2016 while at Makambako. Having received that information, he travelled back to Kilolo on 2nd April, 2016 where he arrived around 03:00 hours. He then went to attend the mourning at the deceased's home where he stayed up to 23:00 hours and went back to his house and stayed with his children who were alone. In the following day, i.e 3rd April, 2016, he went back to the deceased's home and attended the burial ceremony. It was the appellant's further evidence that, after the burial ceremony, he returned to Makambako and on 24th June, 2016, while working on his farm, three people approached him and informed him that he was needed at the village offices and they took him there. While still there, a motor vehicle with three people arrived, handcuffed him and took him to Igowole Police Station where he Was put in the lock up. On 25th June, 2016, he was taken to Mafinga Police Station where they arrived in the evening at around 18:00 hours. Then, on 26th June, 2016, he was taken to an interrogation room where he was tortured and forced to sign some papers. Thereafter, on 28th June, 2016, PW1 brought him to PW2 where he was, again, forced to sign some papers. He thus denied to have confessed that he committed the offence. Having heard the evidence from both sides, the learned trial Judge was convinced that the case against the appellant was proved to the required standard. In convicting the appellant, he places much reliance on the evidence of PW1 which was corroborated by PW2 and PW3 together with the appellant's own confession (exhibit P2). The learned trial Judge was of the view that, although the extra judicial statement was repudiated by the appellant, the confession therein, was nothing but the truth. On the defence of alibi raised by the appellant, the learned trial Judge found that, since it was not supported by any evidence, the same could not raise any reasonable doubt in the prosecution evidence. Thus, the appellant was found guilty, convicted and sentenced as indicated above. Dissatisfied, the appellant is now before us challenging the High Court's finding, conviction and sentence. In the memorandum of appeal, he raised five grounds of appeal which can conveniently be paraphrased as follows; first, that, the prosecution case was not proved beyond reasonable doubt; second, failure by the prosecution to summon material witnesses who informed PW1 that the appellant was responsible with the death of the deceased; third, the prosecution case was fabricated and contradictory; fourth, the appellant's extra judicial statement (exhibit P2) was recorded contrary to the Chief Justice's Guide for Justices of Peace (the CJ's Guide); and fifth, the appellant's defence evidence was not considered. At the hearing of the appeal, the appellant was represented by Mr. Cosmas Charles Kishamawe, learned counsel whereas the respondent Republic was represented by Mr. Yahaya Misango, learned Senior State Attorney assisted by Mr. Amani Kyando and Ms. Winfrida Mpiwa, both learned State Attorneys. Upon taking the floor, Mr. Kishamawe, intimated that, he will argue the first and fifth grounds conjointly and the remaining grounds, separately. On the adversary side, Mr. Misango after having stated categorically that the respondent Republic is opposing the appeal, he intimated that he will respond to the grounds of appeal in the same manner proposed by his learned friend. We shall therefore determine the grounds of appeal as submitted by the [earned counsel for the parties and the related grounds will be determined conjointly. However, before doing so, it is crucial to state that, this being the first appeal, it is in the form of a re-hearing, therefore the Court, has a duty to re-evaluate the entire evidence on record by reading it together and subjecting it to a critical scrutiny and, if warranted, to arrive at its own conclusion of fact as we stated in the cases of D.R. Pandya v. Republic [1957] EA 336 and Reuben Mhangwa and Another v. Republic, Criminal Appeal No. 99 of 2007 [2019] TZCA 341: [30 September 2019: TanzLII]. We shall be guided by the above principle in disposing this appeal. Starting with the third ground, Mr. Kishamawe faulted the learned trial Judge for relying on the appellant's extra judicial statement, while PW2 who recorded the same is incredible and unreliable witness as her evidence was tainted with contradiction on when exactly she recorded the said statement. To amplify on this point, he referred us to pages 226 of the record of appeal, where PW2 testified that, she recorded the said statement on 28th June, 2016 while, at page 227 of the same record, upon being shown her statement she recorded at the police station, she admitted that, according to that statement, it is indicated that, she recorded the appellant's extra judicial statement on 2nd June, 2016. According to him, the pointed-out contradictions created doubts in the prosecution case which should be resolved in favour of the appellant. In his response on this ground, Mr. Misango challenged the submission by his learned friend for being misconceived. He argued that, there is no any contradiction on the date when the appellant's extra judicial statement was recorded. To clarify on his point, he referred us to page 226 of the record of appeal where PW2 stated clearly that she recorded the appellant's extra judicial statement on 28th June, 2016 and at page 266 of the same record, where the said statement is dated 28th June, 2016. Mr. Misango argued that, the date of 2nd June, 2016 relied upon by Mr. Kishamawe to raise the issue of contradiction, refers to the date when PW2 recorded her own statement before the police and it has nothing to do with the recording of the appellant's statement. However, and in the alternative, the learned Senior State Attorney argued that, if the Court will find that the said contradictions do exist, the same is a minor defect which do not go to the root of the matter. He thus urged us to find that the third ground is unmerited. Having revisited the evidence of PW2 together with the contents of exhibit P2 and the defence evidence by the appellant's himself, we agree with the submission made by Mr. Misaftgo that there is no any contradiction. In his testimony, found at page 226 of the record of appeal, PW2 testified that the appellant was brought to her by PW1 on 28th June, 2016 to record his extra judicial statement. This is corroborated by the evidence of PW1. and exhibit P2 which is dated on the very same date, i.e 28th June, 2016. In addition, in his own defence evidence found at pages 240 to 241 of the record of appeal, the appellant, in his own words, testified that, on 28th June, 2016, PWl took him to a certain lady (PW2) to record a statement. In the circumstances, we have no hesitation to agree with Mr. Misango that the appellant's complaint on this ground is plainly baseless as it is not supported by the record. Accordingly, the third ground of appeal fails. On the second ground, Mr. Kishamawe referred us to pages 181 to 183 of the record of appeal and argued that, although, in his evidence, PW1 testified that she interviewed different people at the scene of crime, who mentioned the appellant to be responsible with the death of the deceased, the said people were not summoned to testify before the trial court to corroborate the evidence of PW1 and shed more light on what exactly transpired at the scene of crime. He insisted that, the failure by the prosecution to field such important witnesses should have prompted the learned trial Judge to draw an adverse inference against the prosecution. That, since what was testified by PW1 was not corroborated and had raised serious doubts, the same should, again, be resolved in favour of the appellant. To buttress his proposition, he cited the case of Director of Public Prosecutions v. Juma Chuwa Abdallah & Another, Criminal Appeal No. 85 of 2018 [2023] TZCA 17800: [2 November 2023: TanzLII]. In his response to the second ground, although, Mr. Misango readily conceded that the people referred to by PW1 at page 182 of the record of appeal were not summoned to testify before the trial court, he 10 cited section 143 of the Evidence Act, Cap. 6 (the Evidence Act) and argued that, the said law does not require a specific number of witnesses to prove a fact as what is required is the quality of evidence and credibility of witnesses. He thus insisted that, in the instant appeal, the prosecution case was proved beyond reasonable doubt by the evidence of PW1, PW2 and PW3 which was corroborated by the appellant's confession (exhibit P2) in which, the appellant himself clearly narrated on how he killed the deceased. That, having established its case against the appellant, the prosecution found it unnecessary to summon other witnesses. He thus urged us to find that the second ground is devoid of merit. Having considered the submissions advanced by the learned counsel for the parties and perused the record of appeal, we wish to state that, the burden of proof in criminal cases lies on the prosecution shoulders and the standard is proof beyond reasonable doubt. Therefore, in terms of section 143 of the Evidence Act cited to us by Mr. Misango, the prosecution is at liberty to bring only those witnesses who could advance their case regardless of the number. What is required is the quality of evidence and the credibility of the witnesses. This position has been emphasized in several decisions of this Court. See for instance, ii the cases of Yohanis Msigwa v. Republic [1990] T.L.R. 148 and Mwita Kigumbe Mwita & Another v. Republic, Criminal Appeal No. 63 of 2015 [2016] TZCA 276: [18 October 2016: TanzLII], In the latter case, we stated that: "In each case, the court looks for quality, not quantity o f the evidence placed before it The best test for the quality o f any evidence is its credibility. It was for the prosecution to determine which witness should prove whatever fact it wanted. " Likewise, in the instant appeal, being guided by the above authorities, we go along with Mr. Misango's submission and thus find the second ground of appeal devoid of merit. The appellant's complaint on the first and fifth grounds, hinges on the failure by the learned trial Judge to consider his defence evidence and that the case against him was not proved beyond reasonable doubt. In arguing the said grounds, Mr. Kishamawe referred us to pages 238 to 244 of the record of appeal and contended that, the learned trial Judge did not objectively evaluate and/or analyze the appellant's defence evidence and no reasons were assigned for such omission. He argued that, in his defence, the appellant denied to have killed the deceased and he clearly stated that, when the said death occurred, he was at Makamabako. That, upon being informed about it, he came back at Kilolo, went to the deceased's home and participated in the burial ceremony together with other people in the village. It was his argument that, since the appellant was arrested after two months of the incident, it was crucial for the prosecution to summon some of the villagers who were together with the appellant at the burial ceremony to testify on how he was involved in the murder incident. That, taking into account that the appellant repudiated the extra judicial statement, the learned trial Judge was required to warn himself before relying on the same to sustain his conviction. As such, Mr. Kishamawe insisted that the case against the appellant was not proved beyond reasonable doubt. Responding to these grounds, Mr. Misango insisted that, the prosecution case was proved beyond reasonable doubt through the evidence of PWl, PW2 and PW3 together with exhibits P2 and P3, He added that, the said evidence was corroborated by the appellant's confession who narrated on how he killed the deceased because he was bewitching his wife and children. Furthermore, Mr. Misango challenged the submission made by his learned friend that the appellant's defence was not considered by 13 arguing that, the learned trial Judge adequately considered the appellant's defence and rejected it on account of failure by the appellant to give prior notice of his defence of alibi. To clarify further on this point, Mr. Misango referred us to pages 295 and 296 of the record of appeal where, the learned trial Judge considered the appellant's defence evidence and found that, the same was, nothing but, an afterthought, hence incapable of weakening the prosecution's case. As such, Mr. Misango also urged us to dismiss the first and fifth grounds of appeal for lack of merit. Having carefully perused the record o f appeal, we find no difficult to agree with Mr. Misango's as the record bears it out that the learned trial Judge adequately considered the appellant's defence against the prosecution case and rejected it. This can be evidenced at pages 294 to 296 of the record of appeal, where the learned trial Judge, having considered the said evidence at length, he concluded that: "In the present case, the accused did not adduce any reason as to why PW2 couid tel! lies against him and should not be trusted by this court. Her testimony, and the EJS she recorded thus, remain stable and credible...I have also considered the accused defence that he was in Makambako when the incident occurred. This is essentially a defence o f alibi in law. The law provides for a specific procedure to be followed by an accused who intends to rely upon such an alibi in his defence, he shall give to the court and the prosecution notice o f his intention to reiy on such defence before the hearing o f the case commences, but if he does not do so, he shall furnish the prosecution with the particulars o f the alibi at any time before the prosecution case is closed... In the present case, the accused did not comply with the statutory requirements highlighted above and gave no reasons for not doing so. He just raised the alibi during his defence. I therefore, consider this course an afterthought which cannot save him. I will not thus, give weight to it as per section 194 (6) o f the CPA. That defence will thus, not shake the prosecution evidence narrated previously." Therefore, in the light of the above excerpt, with profound respect, we find the submission made by Mr. Kishamawe, on this aspect, to be misconceived as it is not supported by the record. That said, we equally find the first and fifth grounds of appeal devoid of merit. On the fourth ground, Mr. Kishamawe faulted the learned trial Judge to have relied on the appellant's extra judicial statement (exhibit P2) which he said, was recorded contrary to the CTs Guide. To elaborate 15 further on this point, Mr. Kishamawe referred us to pages 217 to 219 and 266 of the record of appeal and argued that, in her testimony, PW2 did not explain if, prior to the recording of the said statement, she was availed with the letter from the Officer-in-Charge of the Police indicating that the appellant's willingness to confess before her. According to him, the pointed-out omission is a fatal irregularity which had rendered exhibit P2 inadmissible as the appellant recoded the same involuntarily. As such, Mr. Kishamawe invited us to expunge exhibit P2 from the record. He was positive that, after expunging exhibit P2 from the record, the remaining evidence is insufficient to sustain the appellant's conviction. In conclusion and based on his submission, Mr. Kishamawe urged us to allow the appeal, quash the conviction and set aside the sentence imposed on the appellant and set him at liberty. In his response, Mr. Misango blamed his learned friend for having raised a new issue different from the points of objection raised by the learned counsel for the appellant during the trial, when the said statement was tendered by PW2 for admission. To clarify, Mr. Misango referred us to pages 219 to 221 of the record of appeal and argued that, during the trial, the points of objection raised by the appellant's counsel, did not include issues of the letter and/or involuntariness of the appellant to record the said statement. It was his argument that, since the issues of involuntariness or invalidity of exhibit P2 was not raised by the appellant during the trial when it was admitted in evidence to enable the trial court to conduct trial within trial as required by the law, the act of Mr. Kishamawe raising the same at this stage, is purely an afterthought. To buttress his proposition, he cited the case of Japhet Thadei Msigwa v. Republic, Criminal Appeal No. 367 of 2008 (unreported), and insisted that PW2 properly complied with the CJ's Guide and there is nothing to fault the learned trial Judge in admitting exhibit P2 in evidence. Finaly and based on his submission, he urged us to find the appellant's appeal unmerited and dismiss it in its entirety. In his brief rejoinder, Mr. Kishamawe reiterated his earlier submission and stressed that the prosecution case was not proved to the hilt. He thus, once again, urged us to allow the appeal and set the appellant free. To ascertain the issues raised by Mr. Kishamawe on this ground, we have revisited the testimony of PW2 who tendered the appellant's extra judicial statement before the trial court. It is apparent, at pages 218 to 221 of the record of appeal that, during the trial, when PW2 tendered the said statement for admission, the points of objection raised 17 by the learned counsel for the appellant's then, related to the failure by PW2 to state; (i) the date and time when the appellant was arrested; (ii) whether or not, PW2 had obtained the appellant's consent to inspect his body; (iii) where she inspected the appellant's body and found any marks; and (iv) the failure by PW2 to inform him that the statement he was going to make may be used later, as evidence before the court. Taking into account the nature of the points of objection raised then, the learned trial Judge at page 219 of the record of appeal observed that: "The parties can now address the court on the irregularities without going to triai within trial since the challenge is not based on voluntariness or otherwise, " In the circumstances, arid taking into account that, the appellant did not raise the issues of the said letter and/or involuntariness of the appellant to record the said statement during the trial, we agree with Mr. Misango that raising them at this stage of an appeal, is nothing but an afterthought. It is also clear to us that, at that particular stage of admissibility of the said statement, even the appellant, who was as well before the trial court, did not complain or indicate that he involuntarily recorded the said statement to enable the trial court to conduct a trial 18 within trial. In the case of Emmanuel Lohay and Udagene Yatosha v. Republic, Criminal Appeal No. 278 of 2010 (unreported), when faced with an akin situation, the Court held that: nIt is trite law that if art accused person intends to object to the admissibiiity of a statement/confession, he must do so before it is admitted and not during cross-examination or during defence - Shihoze Sent and Another v. Republic (1992) TLR 330. In this case, the appellants 'missed the boat by trying to disown the statements at the defence stage. That was already too late. Objections, if any, ought to ha ve been taken before they were admitted in evidence," [Emphasis added]. Being guided by the above authority, it is our considered view that, even in this appeal, the appellant has missed the boat long before he came before us. Therefore, the appellant's complaint of objecting the admissibility of his statement by raising issues of it being involuntarily recorded at this eleventh hour offends the above stated principle. In the event, we also find the fourth ground of appeal devoid of merit. Consequently, and looking at the totality of theevidence, we entertain no doubt that with the available evidence, the trialcourt 19 correctly held that the case against the appellant was proved beyond reasonable doubt. For the foregoing reasons, we find the appeal devoid of merit and hereby dismiss it in its entirety. DATED at IRINGA this 15th day of March, 2025. R. J. KEREFU JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 17th day of March, 2025 in the presence of Mr. Jassey Mwamgiga holding brief for Mr. Cosmas Charles Kishamawe, learned counsel for the appellant and Ms. Anastazia Buhaga, learned State Attorney for the respondent/Republic; is hereby certified as a true c o d v of the oriqinal.