R V JOHN KADASO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF SHINYANGA AT SHINYANGA CRIMINAL SESSIONS CASE NO. 87 OF 2022 THE REPUBLIC VERSUS 1. JOHN SIMON @ KADASO 2. PAUL MASHAURI @ NCHIMIKA @ RUBEMBEJA @ JAM MARSHAL JUDGMENT 22/3/2024 &30/04/2024 F. H. MAHIMBALI, J John Simon @Kadaso, and Paul Mashauri @ Nchimika @ Rubembeja @ Jam Marshal jointly face a charge of murder contrary to Section 196 of the Penal Code, Cap 16, R.E 2022 which is punishable under Section 197 of the same Code. The prosecution alleged that on 27th day of February, 2018, at Kashishi Karago Village, within Busega District, in Simiyu Region, the accused persons murdered one Josia Metusela Mzuri@Super Sami. The accused persons pleaded not guilty and the matter proceeded to full trial. Throughout trial, the 1st accused was well represented by Mr. Frank Samwel learned advocate assisted by Ms. Kundi Erika Nyenji learned advocate and the 2nd accused was presented by Mr. Ijan Augustino learned Advocate. Page 1 of 63 The prosecution enjoyed the legal services of Mr. Daniel Masambu being accompanied by Ms. Rehema Sakafu and Patrick Charles learned State Attorneys. In efforts of establishing the guilt of the accused persons beyond reasonable doubts, the Republic called a total of 15 witnesses. These were PW1, PW2, PW3, PW4, PW5, PW6, PW7, PW8, PW9, PW10, PW11, PW12, PW13, PW14 and PW15 through them, a total of twelve prosecution exhibits were tendered (P1 –P12). The exhibits tendered included: search order and particulars of search at the home of the 1st accused (p1&p2), various investigation reports and photos (P.3), Postmortem report (p4), certificate of seizure of motorcycle, pistol, ammunitions and its magazines (P.5), Motorcycle with Reg. No. MC 277 BVG) by 2nd accused (P6), Pistol alleged recovered from the said motorcycle (P.7), cautioned statement of the second accused person (P.8), Call data report from Vodacom (P.9), the recovered motor vehicle alleged to be T.323 BSF-Nissan Patrol (P10), the motor vehicle ownership details (P11 & P12). What is the evidence of the prosecution in this case as gathered from its witnesses? Page 2 of 63 Stumai Magembe – who is the wife of the deceased testified as PW1. Her testimony is to the effect that on 26th February 2018, she had received the first accused person and his wife at their home as instructed by her husband. And that on the next day i.e 27th February 2018, the two i.e Josiah and John had a conversation before they left. Later on, the said Josiah Methusela Mzuri returned home for lunch and went away. She could not return home despite his instructions to her that she should have prepared a room for guests. From then on, he disappeared and could not be traced anywhere until she found her dead at Lamadi on 14th March 2018 after being evacuated from water and being in a parcel. Mr. Emmanuel, testified as PW2 of the case. His testimony is to the effect that the first accused person by name of John Simon Kadaso was his client on tax cab business. Without ascertaining exactly on which dates, but just said in end dates of February 2018, while at Mwanza at about two times, he drove Mr. John to Lamadi – Simiyu (to and from). The last trip, he testified to have taken all the members of his family from Lamadi to Mwanza. Mr. Nellyson Charles testified as PW3 of the case. His testimony is to the effect that he is motor technician involved in motor vehicle Page 3 of 63 services and repair stationed at Mwanza. In the course of his business, he came to know Mr. John Simon Kadaso as his client motor vehicle services as he serviced several times. That on the night of 27 th February 2018 after midnight, he had received a call from Mr. John Simon Kadaso and was inquired whether he knew driving a manual transmission car. As he knows, he replied in affirmative. He was then instructed that he had to hire a taxi cab to Lamadi as there is a manual car of John Kadaso’s brother for a drive as his driver was attending his sick wife. He eventually hired one taxi cab and arrived at Lamadi to the home village of John Simon Kadaso. Where he met the said first accused person, 2nd accused person and another man who was introduced as sibling to John Simon Kadaso. He was shown the said motor vehicle. Which was Nissan Patrol T. 323 BSF. After he was satisfied with its condition, he was ordered to switch on and then went to Lamadi Center and later Bunda to one guest house by name of Machunche while being with John Simon Kadaso, Paulo Mashauri and that brother to John Simon Kadaso. That all along, the three were just conversing in Sukuma vernacular, thus he could not know anything amongst them. It was only John Simon Kadaso who was communicating to him in Kiswahili. While at Bunda, at a certain point after several purchases in shop, he was left himself to rest in that guest house. At late evening around 20.00hrs, he was directed by phone Page 4 of 63 to go to Lamadi where at Lamadi center, he picked the three to the home village of Mr. John Simon Kadaso. While there, he was ordered to drive reverse to one house in the compound where then he picked one cargo roped in sulphate bag (gunia) as loaded by those three. He wanted to know what was it but John told him that it was a tiger trophy (chui). They then boarded and was ordered to drive to Bunda direction. Just after he had reached Lamadi center, aside a river, he was ordered to stop and switch off the lights. He complied. The said cargo was then offloaded and himself was told to drive about 5 to 7 kms to Bunda direction on allegation by John Kadaso that there was one kigogo (senior government official) who would come to pick the said trophy. As it is a confidential business done under top secret, he was not supposed to know anything. So he drove for such a distance. After about 45 minutes, he was ordered to come back. He returned and met them at Lamadi center. Then he was ordered to drive back to Bunda direction again. But this time, he was ordered to follow the motor cycle being driven by John Kadaso’s brother but lights off. He did so up to a certain point at the bridge and ordered to stop. After that he was ordered to drive off road to Serengeti National Park slowly up to about 1km and a little. He was then ordered to stop and switch off the engine. By that time in his car had carried petrol fuel – two drums which he added a Page 5 of 63 little while at Bunda. He was then told that there are businessmen coming for elephant tusks transaction. So, as he was not needed in the said transaction, he was to disappear and if needed later for driving back the said vehicle will be communicated. He was thus taken back by motorcycle to John Kadaso’s home where he slept and remained there until next morning. Where then John Kadaso came and later they had taken a bus to Mwanza. He says he was so terrified when he saw those night transactions. In their return to Mwanza, he was given an amount of 200,000/= as his salary for the work done, but was warned not to tell anyone or else he would be killed as he was a dangerous person and with a deep network. He then continued with his duties. But few days later, he came to know about one vehicle found burnt within Serengeti National Park – Bunda side. When he saw it social media, he got shock as it resembled with the car he drove there. But recalling the warning and that he was not so sure if it was the one he remained calm. Few days later, he received a call that he was needed at Police Nyamagana as he was suspected using a stolen phone. He sharply complied, where then he met Afande Momba (PW6) and interrogated in detail on what he was doing and what he did in February. He stated all that he did and the driving services he offered to John Kadaso at Lamadi, Bunda and that he left it within Serengeti National Park (one km1.4). His cell phone was Page 6 of 63 then seized by police and detained where later he led police to all those points he had been with John simon Kadaso and finally at Serengeti National Park at the direction he had left the said car where he found it burnt (P.10 exhibit and its photos P.3). He was later shown photos alleged to be the cargo he had carried on 27th February 2018 from John Simon Kadaso’s home to Lamadi area- near river point. Which resembled so much with that cargo he had carried by its look and size. He testified further that, despite all this explanations, he was detained by police and later charged before he was discharged on nolle proseque in January 2022. PW4 is John James Kessy. He is Bunda’s OC- CID. He testified how he received the information of the missing Josiah Methusela Mzuri @ Supersami, the finding of exhibit P.10 (motor vehicle) and details from TRA that it was T. 323BSF – Nissan Patrol being found burnt within Serengeti National Park, the recovery of floating cargo from river Barageti. Mr. Amini Mzuri testified as PW5. His testimony is to the effect that after a long search of their sibling, he came to know about the burnt vehicle used by the deceased on 8th March 2018 and that he identified Page 7 of 63 his remains vide the evacuated cargo floating on river barageti on 14th March 2018. Mr. Isaya Momba testified as PW6. His testimony is to the effect that, he used cyber technology to establish who were communicating with the missing Josia between 26th February 2018 and 28th February 2018. He established that it was John Simon Kadaso. And who also were communicating with the said John Simon Kadaso. By use of cyber investigation, they had been able to arrest Nellyson Charles (PW3) and 2nd accused person. With other intelligent information, the cyber investigation enabled them to find out how these accused persons are connected. PW7. E 7215 D/Sgt Bweri, stated that on 8/3/2018 around at 15:00 hours they went to Serengeti National Park where he witnessed a burnt car - Nissan patrol station wagon white color with registration number T. 323 BSF. He stated that when searched its particulars from TRA, the said vehicle established being owned by John Lula which he sold to Mr. Super sami (deceased). That in the course of their investigation, they got information of the missing of Josia Metusela @mzuri @super sami and later on 14/3/2018 they discovered a kiroba floating which was believed to be a human body which was later Page 8 of 63 identified to be the remains of the deceased Josia Metusela Mzuri and the same was taken for post mortem. He also tendered the sketch map of the scenes, the firearm permit, The flash disc and the forensic report which were jointly admitted as exhibit P.3. On further examination in chief the witness tendered the PMR of the deceased Josia Metusera Mzuri dated 15th March 2018 which was admitted as exhibit P4. PW8: Inspector Richard Yotham, who was a police officer Mara testified that he was assigned to go with the 2nd accused in search of chassis number and engine number of his motorcycle with registration No MC 277 BVG, King lion with red Black and white color, during the search pistol weapon with registration number DAA 316990 Bereta make with its magazine which had five ammunitions which he seized it. He testified that they got the said chassis and engine number to wit: the engine number is KL162FMJ*8H810085 and Chassis number LKLJCKLC1H1200085. The motorcycle was admitted as exhibit P.6 and the pistol with Reg. No. DAA 316990 together with its five ammunitions in the magazine was admitted as exhibit P. 7. PW9. E. 9087 D/Sgt Adam, who testified to have recorded the caution statement of the 2nd admitting to have killed the deceased Josia Page 9 of 63 Metusela @ Mzuri accused person, the statement was admitted as exhibit P.8 of the case. PW10 James Lisawa Wawenje, a Physical Security Manager and law enforcement Assistant support who works with Vodacom Tanzania PLC testified that on 9/3/2018 he received a letter from RCO Simiyu directing him to issue call data received or SMS data recordings of the cell phone number: 0755006130 from 1st Jan 2018 up to 9th March 2018, he printed the said information and sent the same by letter to the RCO Simiyu and the same was tendered and admitted as exhibit P. 9. PW 11: E4532 D/Sgt Edwin who was in CID unit at Bunda Mara who was among the investigators in this case, collected the evidence (exhibits) and recorded some statements of witnesses. Amongst the witnesses they had recorded were Juma Nkwabi, Lucy Zabron, Samweli Magoti, Aselya Ndelema, he testified that Juma Nkwabi’s evidence was recorded by D/Cpl Bwire and Samweli Magoti’s evidence was recorded by D/C Egwaga and that they were now deceased and therefore he prayed this court to admit their statement in lieu of their oral testimony but the same was not admitted as there were not established reasonable steps taken to the satisfaction of the court that the two persons Juma Nkwabi & Samwel Magoti were unreachable and dead. Page 10 of 63 He added that the two witnessed the search of the house of John simon Kadaso, where they recovered big needle for sewing sacks, black cloth, rope (katani) and various documents of the deceased and the motorcycle from which it was recovered a pistol (fire arm). Pw12: Marwa Samo Mwita, a VEO of Serengeti but also acting WEO testified that on 14/3/2018, he received information from the villagers that there was an abnormal cargo (kiroba) floating at river Barageti. He went at the scene accompanied with other men, upon reaching they witnessed the said cargo, reported the matter to the police who came with the relatives of one person alleged gone missing for some days. He stated that they joined forces with the police and managed to pull the cargo along river shore and discovered it to be human body which was identified by the relatives to be of one Super sami; it was taken to Musoma for custody and postmortem. PW13: Fortunatus John Kafumu, testified that on 26/2/2018 at 13:00 hours while at Local Beach Hotel- Mwanza with other businessmen Mwanza (bus owners – popularly known TABOA) and the deceased was one among them, they had a meeting and around 19:00 hours. After that, they went for dinner at Lakairo Hotel where the deceased excused himself by telling them that he was going to bail someone (his friend) Page 11 of 63 who was at police cells Nyamagana central police station and came back later around 21:30 hours. He added that after dinner around 22:00 they agreed to meet on the next day i.e 27/2/2018 for another meeting but the deceased made an apology that he will not attend the said next scheduled meeting as he will be going to Lamadi for the purpose of selling a house of someone he owed, he promised to join them on the next meeting i.e on 28.02.2018. On the said date (28th February 2018) in the morning, they proceeded with the meeting without him. As he promised he could join them, they tried to call his mobile phone number, but he was not reachable on his phone. Later, as they had been receiving a lot of calls from his workers reporting breakdown of the buses along the roads and that they could not reach their boss, they got shock. When they made a follow up to his wife, they were informed that he had traveled for his business and that he had not returned. When the story of his missing spread over and over, they then reported his missing at police central - Nyamagana Mwanza, and later his car was discovered burned at Serengeti National Park and later his body at river. PW14: Johnson Minja, a Conservation Ranger testified that on 8/3/2018 in the afternoon together with Gabriel Wakolela and Mali Matayo while in Page 12 of 63 patrol within Serengeti National Park spotted a burnt car Ndabaka area, and reported to their superior- Amani Shipela, who reported the incidence to Bunda police station, they went at the scene where they discovered panga and matching box. PW15: SSP Mtaju Msiba Mayombo, who was OC-CID at Nyamagana police Mwanza testified that on 8/3/2018, he received information regarding the missing of one Josiah Metusela Mzuri @ Super Sami for about 10 days and on that same day there was information of the burned car at Serengeti which was being used by the deceased prior to his missing. They opened investigation file No. MZA/PE/30/2018, they later received information from their informer that the deceased was seen with John Kadaso (The 1st accused) at Buzuruga Plaza in the deceased’s motor vehicle to wit Nissan patrol with Reg. No. T 323 BSF, the said informer led them to the 1st accused’s home Igoma Ndofe street, upon reaching they were told that the 1st accused was not around, they had to make a search and found him hiding on the roof top of the house and arrested him. He also testified that, on 26/2/2018 the 1st accused was detained at Nyakato police post for stealing a motor vehicle believed to belong to Page 13 of 63 one Kenyan by name of Ogutu who according to the investigation bought the car while in Tanzania and left the same to the 1st accused who sold it to another person. He added that on that same day at night the deceased insisted to bail him as they had business to deal with, he was then bailed out from police custody. On 8/3/2018 the rumors of missing of super Sami spread, and the 1st accused was connected to his missing according to intelligence information they got. On the other hand, the prosecution recalled PW7 to tender a motor vehicle with Ref. No. BND/IR/730/2018 also marked as BND/Exh/Reg No. 43 of 2018 on its left side which was admitted as exhibit P.10 of the case. Also, this court granted the defense with the right to further cross- examine PW11 D/Sgt Edwin police at Bunda who was availed with a written statement alleged being of one George Zakayo Ogutu purported to be recorded by PW11 on 7th March 2018. He testified that he could not recall the said statement and that it was all forged document and prayed this court not to admit it, he added that after full investigation it was discovered that the deceased was murdered at Kashili village – Busega (Simiyu) at the 1st accused’s home. And on further examination in chief by the prosecution side tendered a police letter with reference Page 14 of 63 No. BND/CID/B. 1/1/VOL. 19/38 dated 17th January 2020 which was admitted as exhibit P.11 whereas, the TRA letter dated 20th January 2020 as exhibit P.12. From the above prosecution’s story, the prosecution’s is to the effect that one popular businessman in Mwanza by name of Josia Metusela @ Mzuri went missing from 27th February 2018 allegedly, left with one motor vehicle with Reg. Number T.323 BSF – Nissan Patrol. Efforts to trace him alive proved futile. While in the course of his search, on 8th March 2018 (i.e about 10 days from when the missing of the said Josia @ Supersami) was reported, one Nissan Patrol vehicle which could not be instantly established its registration number was found burnt within Serengeti National Park – Ndaweka area (closer to the main road Bunda – Mwanza). It was a motor vehicle with Ref. No. BND/IR/730/2018 also marked as BND/Exh/Reg No. 43 of 2018 on its left side. The same was established to bear Reg. No. T. 323 BSF which was admitted as exhibit P.10 of the case via PW7 – D/sgt Bweri. Five days after, a certain cargo was recovered floating at river barageti, nearer Ndaheka area. When inspected, it contained the remains of a human body which were identified to be the remains of the missing Josia Metusela@Supersami (PW1, PW5 and PW13). Page 15 of 63 While all this was happening at Bunda area (in Mara Region), at Mwanza where the report of the missing Supersami was first reported, by use of intelligence information, the first accused Mr. John Simon Kadaso was on the same date of recovery of the burnt vehicle i.e 8th March 2018 arrested and put under detention on allegation that he was last seen with him (PW15’s testimony). By use of cybercrime investigation report (PW6 and PW10), it was alleged that the cellphone number of Mr. John Simon Kadaso was in active communication with that of the deceased Josia Metusela Mzuri @ Supersami and that on 27th February 2018, the two cell phones seemed even to share one network of pole: Buzuruga, Magu, Lamadi and Bunda. It was through PW6’s testimony – Isaya Simon Momba – Police Officer at Simiyu, that following the missing of the said Josia Metusela Mzuri @ Supersami, he had to inquire about his missing phones’ registered numbers. After he was supplied with the two cell phone numbers 0715006130 and 0755006130 (Tigo and Vodacom respectively) he wanted to establish where the said numbers were then located (via what communication network) who were communicating with him (mobile numbers), the place where those users of other phone who communicated with the missing person. Page 16 of 63 All this information could be established by police but through network providers and for this matter Tigo and Vodacom had to be contacted. He quickly wrote an email to these network providers vide RCO’s office. He did so under urgency. From Vodacom, he was informed that the cell phone number 0755006130 was registered in the name of Josia Mzuri Sami. It showed that the said phone number used various network poles as between 27th Feb. & 28th Feb. 2018. It also established being in Mwanza – Buzuruga on 27th Feb 2018. Then it went to Igoma and Kapripoint. On the next date of 28th February, 2018 the information provides that the network read Buzuruga, Igoma, Magu, Simiwi river, Lamadi and switched off at 12:00 hours at Bunda urban. The frequent number in communication with that number was Vodacom: 0745084890. This number had a repetition of outgoing and incoming calls with that of Josiah Methusela Mzuri @ Supersami. It also established all outgoing and incoming massages. With this information, he inquired about the details of the cell phone number 0745084890 to establish further details from Vodacom. The Vodacom service providers replied sharply that cell phone number 0745084890 is registered by the name of John Simon Kadaso. The Page 17 of 63 information also established the duo numbers 0745084890 by John Simon Kadaso and 0755006130 by name of Josia Mzuri Sami had shared the same network at one time: Buzuruga, Igoma, Magu, Simiwi river and Lamadi. He testified further that through that information report from Vodacom, that the same number 0745084890 by John Simon Kadaso had frequent communication with two numbers he had raised doubts with. He raised doubts because it was midnight of 27/2/2018, to 28/2/2018. The first number it communicated with was 0766655122. Another was 0752146 477. These two numbers were making communication at suspicious time -bed time. Following all that information, he relayed back the provided information from Vodacom to his fellow police officers in the team to find out the way forward jointly. In their joint discussion they reached consensus that they must also find details of these two latter numbers: 0766655122 and 0752146477. With 0766655122, it was established registered in the name of Nelson Charles. And 0752146477 was registered name of Paulo Mashauri. Then there came another idea, as one accused person was already arrested at Mwanza, they had to cross check whether those two numbers 0766655122 and 0752146477 could be found in his phonebook. As the Page 18 of 63 said John Simoni Kadaso, who was possessing phone number with Reg. No 0745084890, he had to establish if those two numbers belonging to Nelson and Paul Mashauri existed in his phonebook. It was fortunate that this number 0745084890 had in its phone book a number 0766655122 as Fundi Nelly Mwanza and the second number 0752146477 had been saved Afande Mashauri. They thus had to make follow up the owners/users of these cell phone numbers 0766655122 and 0752146477. They applied female persons to find 0766655122 in which Nelly (PW3) replied being at Mwanza. They thus travelled to Mwanza, by use of police intelligence, and managed to arrest Mr. Nellyson on allegation that he was using a stolen phone. He quickly reported at police Nyamagana and had some conversation with him. That in passing through the phonebook of Mr. Nellyson, he had established the phone number of 0745084890 owned by John Simon Kadaso was his cell phone saved into his phonebook as Tajiri Msukuma Mwanza. In his interrogation with Nellyson, he established that the two had known each other. And that Mr. Nellyson had informed having done two things with Mr. John Kadaso: firstly, he did services to his motor vehicle - Nadia and then secondly, he was called at night in one day and Page 19 of 63 instructed him what to do and he did. With that information they detained him. With the second number 0752146477 saved as Afande Mashauri in the phonebook of John Simoni Kadaso (0745084890) which was registered as Paulo Mashauri, they started looking for him. As he changed hand cell phone number from 0752146477 to another number 0782520965. Through that number (0782520965), they made a follow up and managed to arrest him being with his motorcycle king lion which was red, white and black registered as MC 277 BVG - Sport. That is how the said Nellyson (PW3) and Mr. Paulo Mashauri (2nd accused person) were arrested in connection of this case but vide cyber investigation. Mr.James Lisawa Wawenje who is Physical Security Manager and Law Enforcement Assistant support from Vodacom Tanzania PLC told the court that he is charged with the security system of the company and also liaising with State security officers in issuance digital cell phone information on request. And that on 9/3/2018, while at office HQ DSM (Vodacom), he received a letter from RCO -Simiyu directing him to issue call data and sms data received or sms data recordings of the cell phone number: 0755006130. In that letter also, there were other cell phone Page 20 of 63 numbers of other network providers. The letter wanted them give call and sms data record from 1st Jan 2018 up to 9th March 2018. With ownership details, the same is obtained from registration respiratory system. On call data record, this is obtained from Sql toad. These both systems are owned by Vodacom PLC. After he had understood the contents to the said letter, he passed through their data system through his computer. After being satisfied with the security systems that in his computer and printer were in order i.e free from hack, he did print out the requested information and handed them to police Simiyu as requested. On the integrity of their printed out information, Mr Wawenje boasted that the system very safe and reliable as it is protected by fire walls and security systems which are securing/guarding/protecting these systems. Furthermore, they have CCTV cameras, security guards against any physical interference. In addition, every authorized officer has been given user name and passwords. In communicating with security personal it is only him who is entrusted. He has username and password for that transaction. With the requested data/information, it was him who had been authorized to deal with and he then lodged into his computer, entered Page 21 of 63 his password and signed in. He then lodged in the requested information, and it was displayed. After he had printed out, signed and sealed it, he accordingly replied by letter as requested to the RCO Simiyu. The said information was admitted by this court as exhibit P.9 of the case. Acting on this cyber information and other intelligent information gathered by the prosecution, the two accused persons here, together with Nelson Charles Rweyemamu @ Yasini Shushi (PW3), Emmanuel Charles (PW2), Emmanuel Moses Damas @ Maisha, Josephat Steven @ Matiku and George Zakayo Ogutu were on 18th April 2018 jointly charged for murdering the deceased JOSIA METUSELA MZURI @ SUPER SAMI. However, almost after four years’ life span of the case at Bunda District court, by Nolle Proseque dated 6th December, 2021, all the accused persons named above were discharged save for these two accused persons who were re-arrested and charged at Bariadi District court and eventually this murder case before this court. In essence, it is the testimony of PW3, PW6 and PW9 which establish the alleged link as to why these two accused persons are responsible of the said murder. The testimony of PW3 who is a convert from being an accused person to a witness after he had been in remand Page 22 of 63 prison from March 2018 to January 2022, testified how he knew the 1st accused person in connection with the servicing of his motor vehicle at one garage in Mwanza in which he was working and that secondly, on 27th February 2018, he had offered driving services to one Nissan Patrol vehicle from the home village of John Kadaso (kashiri – Lamadi) to Bunda to Lamadi and later to Serengeti National Park – Ndaweka area and left the vehicle there. That in the said driving service, he had carried a cargo from the home village of John Kadaso alleged to be of Chui trophy and offloaded it at Lamadi river. In all that time, Mr. John Kadaso had been in companionship of two male persons: Paul Mashauri (2nd accused) and the other man who was introduced to him by John Kadaso as his sibling (elder brother) who is the owner of the alleged vehicle Nissan Patrol he was asked to drive as it was a manual car. That, the said cargo he had carried on that 27th February 2018, resembled much with that cargo which was recovered by police floating in river Barageti – near Lamadi center – bordering Bunda and Lamadi (Simiyu) (displyayed in exhibit P3 – photos in still picture, video). Though John Kadaso’s alleged brother has never been part of this case from the beginning (Bunda District court, Bariadi District Court and now this Court), the PW3 firmly testified how he drove these two accused persons with their sibling and always were conversing in Sukuma native Page 23 of 63 language which pre-empted him from following their conversation, he being a Haya by tribe. That, the manner these accused persons had carried the said luggage /cargo alleging it to be chui trophy and the manner he drove the said car off lights and later drove off road to the Serengeti National Park, and ordered to switch off the engine and left. That later in March 2018, upon his arrest by Isaya Momba (PW6), he said all this, and then led Police to all the points (including Ndaweeka area where he was ordered to stop the vehicle and switched off the vehicle’s engine). He clarified that, in all that time, he had been with the said John Simon Kadaso who was always being accompanied with two men: second accused (Paul Mashauri) and John Kadaso’s alleged sibling as introduced to him. In his testimony, he led police even to the point where the alleged vehicle was left and found it burnt. As if this is not enough, prosecution’s evidence tells how the 2nd accused person was on 5th April 2018 interrogated by PW9 – Sgt Adam after he had been arrested on 28th March 2018. Though the said confession statement was repudiated and legally objected having been recorded beyond the prescribed statutory time, it was nevertheless admitted as exhibit P.8 of the case. Nevertheless, I reserved full digest of it in the judgment stage. In the said cautioned statement, the second Page 24 of 63 accused narrates how he was hired by Mr. John Simon Kadaso to kill the said Supersami who was unconsciously asleep at the home village of John Simon kadaso at Lamadi area. When required to give their defense after being found with the case to answer pursuant to section 293 of the CPA, the first accused denied liability of the said murder shifting the burden to the discharged George Zakayo Ogutu as the one responsible. As to why he said so, he first maintained his defense of alibi that from the 23rd February 2018 to the 1st March 2018, that the accused person John Simon Kadaso was in Police Custody at Nyakato Police station in Mwanza on the motor vehicle dispute with George Zakayo Ogutu. In his testimony, he testified to have known the deceased Josia Metusela Mzuri @ Supersami as they were friends. And that in 2016, he had been his middle man of purchase of motor vehicle from one Kenyan by name of George Zakayo Ogutu. That the said Ogutu had a vehicle with Reg No. T334 DGH which he was selling it. As Mr. Supersami assured him that the car was good, and on mechanical recommendation from PW3 (Nellson), that it was in good order, he purchased it at a price of 9,000,000/=. Though he could not tender any document for the said transaction, but later in 2017 he decided to sell it to another person by Page 25 of 63 name of Bujiku. That in 2018, he met one George Zakayo Ogutu being brought to his home by Mr. Nellyson (PW3). There Mr. Ogutu told him, that he was defrauded by Mr. Supersami on gold purchase worth 500,000,000/= in 2016. As he had paid cash money 500,000,000/= to Supersami, for gold transaction – 30 kg, but to his surprise, he was arrested at Magu - police barrier and all of his gold confiscated. So he went Kenya but informed the said Supersami all that had transpired where Supersami promised to refund him. As he kept on following from his country but in vain, he had decided to make a physical follow up by himself. Since Supersami was avoiding picking up his calls, he had reported police the whole saga, and police advised him to file a police complaint on the motor vehicle issue so that they could find him. The said complaint was then filed at police, and as he was the receiver of the said vehicle, he was detained pressurizing the coming of Supersami. He was later released on 26th February 2018 but on condition that he should resurface on the next morning. On 27th February 2018 when he had resurfaced, he was detained on allegation that Mr. Supersami didn’t keep the promise of repaying the said money or gold worth that amount. So he was under police custody until 1st March 2018 when he was released on bail, therefore he denied involvement with the said murder as alleged. He however testified that while in prison remand, he Page 26 of 63 had met one George Zakayo Ogutu who narrated the whole story how he and his two fellow Kenyans had murdered the said Supersami on allegation of defrauding him on the alleged amount of 500,000,000/= or gold worth that amount. So, the murdering was the revenge against him. On this, he tried to exonerate himself from that fact, shifting the burden to George Zakayo Ogutu. On the fact that he had been at his home village Ramadi on 27th February 2018, he denied as testified by PW2 and PW3, claiming that the last time he visited his home village was on 19th Feb 2028. His evidence on the fact of being not at his home village on 27 th February 2018 was corroborated by DW2, DW3, DW4, DW5 and DW6. Whereas DW2 – DW4 stated how they know John Kadaso being the son of Mama Tereza and them being leader/neighbor and residents in the said home, they claimed neither seeing John Simon Kadaso nor anyone stranger conducting search at the said home. On his part, the 2nd accused testifying as DW7 denied the alleged murdering saying that he was arrested on 27th March 2018 while pressing for his money from the first accused but vide his manager of JSK Hotel where he had been supplying meat for hotel catering services. As regards committing the said offence charged with, he denied it Page 27 of 63 claiming that on the material dates he was at Ukerewe and being sick. He further claimed that he never knew John Simon Kadaso prior to the filing of this case. That he just met him at prison in connection with this case. And added that, on the alleged confession statement recorded by PW9 – Sgt Adam, he doesn’t recall to have stated anything serve his personal particulars only and that he signed the said statement upon being brutally tortured by one afande known as vandame. He however, recognized the said motorcycle as being his (part of exhibit P5 –(i)) but denied to have been found with the said pistol (Exhibit P5(ii). He also tendered a complaint letter to the DPP on the conduct of the matter, that the same murder alleged first being committed at Bunda and later being charged that it was committed at Lamadi. The said complaint letter was admitted as exhibit D1 of the case. At the closure of the defense case, Mr. Frank Samuel, learned advocate for the first accused asked for final submissions in which I had ordered the same be filed in court and that right extended to other parties as well (Republic and for the 2nd accused person). Only Mr. Frank did it. in his final submission, he has averred the following, amplifying the defense testimony, that the prosecution’s case is weak and unreliable one. In essence he submitted that by PW1’s testimony that on Page 28 of 63 the 26/3/2018 the first accused accompanied with his woman slept at home of the late Supersami. It is his view that the testimony of PW1 was on insistence of good relationship between the 1st accused person with the late supersami, whereby similar testimony was averred by PW 15 who told the court that on 26/2/2018 the deceased bailed out the 1 st accused person from police custody for the case which involved the 1st accused person and one George Zakayo Ogutu. During cross examination PW 15 testified that according to his experience, the first accused and the late super Sami were in good terms. Mr. Frank also submitted that the Pw2 testified that in February 2018 one day he was called by the 1st accused and they went together to Lamadi where they shifted the family of the 1st accused to Mwanza. On the next day the 1st accused called PW2 to take him to Lamadi where PW2 witnessed the 1st accused called PW2 to take him to Lamadi where Pw2 witnessed the 1st accused buying the petrol 120 Liters. The next day the 1st accused and Pw2 went together to Lamadi and later on came back on the same day. The next day PW2 was called by 1st accused and went to Lamadi where he met the 1st accused and they came back together to Mwanza. Page 29 of 63 Mr. Frank was on the view that the witness did not state actual dates February 2018 with the days responsible, because the month ended on 28th day. He thus prayed for the PW2 testimony be expunged. Mr. Frank further fortified that the PW3 testimony is worth nothing and should not be considered. The said witness failed to state the registration numbers of the Motor vehicle of the 1st accused which he used to serve, of which he expected to remember it. Pw3 also confessed that he received the information that the burnt car was the one which he drove to Serengeti until the day of arrest, 15 days later. Mr. Frank stated that if at all PW3 was a good citizen and ready to give his testimony free, why he did not report the incidence to the police? Mr. Frank further fortified that PW2 and PW3 testimonies should not be considered because these two persons were accused persons, how they were turned from being the accused persons into witnesses? Therefore, the stated by these witnesses may be due to promises of not being charged from the offence which prior charged with. Hower these witnesses testified before the court that they were recorded twice at police during arrest and before Nolle Prosequi. The committal proceedings do not reflect that these witnesses were recorded cautioned statements twice and under what circumstances. Page 30 of 63 Mr. Frank also added that PW4 testimony need not to be relied upon, and should be ignored because Pw4 lied the court. PW4 testified that on 29/3/2018 he received the 1st accused from Mwanza and went to Kashishi Lamadi Simiyu accompanied with 1st accused in order to search the house of the 1st accused person. Before searching in that house, police men approached the villager one Juma Mkwabi and another person, they informed them their intension to search in the house of the first accused. Via these testimony in his view Mr Frak averred that there is a lot of doubts; one these persons had no any leadership in Kashishi not even a hamlet leader. The prosecution failed to call these people to prove whether there was any search in the said house. The prosecution failed to bring these people or even telling this Court where are they. Therefore, negative inference should be drawn to these testimonies. He further contended that the hamlet chairman in the said house told this Court that in his hamlet there is no such person called Juma Nkwabi, therefore this implies that PW4 was telling lies, thus his evidence should be expunged similarly exhibit P1. Also, Mr. Frank submitted that PW5 had no any tangible evidence. Page 31 of 63 PW6 testimony was on phones of the deceased on 28/2/20218 which was recorded the following network, Buzuruga, Igoma, Magu, Dimiyu river, Lamadi and was switched off at 12:00hrs at Bunda. Based on these piece of evidence, it therefore implies that the deceased was murdered at Bunda on the 28/2/2018, therefore with the charge against the accused persons that on 27/2/2018 the accused killed supersami at Lamadi in Simiyu is disproved. The prosecution has not proved this doubt as to whether if the late supersami died on 27/2/2018 who was therefore traveling with cell phone of the deceased? PW8 testified on the discovery of pistol in the motorcycle of the 2nd accused likely this testimony need not to be trusted as the prosecution failed to call the persons who witnessed the search. Also, other issue to think is, how possible the motor cycle was arrested in Mwanza and stored at police from 28/3/2018 to 5/4/2018 about 8 days, it therefore difficult to believe that the pistol was present in the said motorcycle or it was inserted by the police, therefore exhibit P7 need to be expunged. Mr. Frank also averred that the PW9 alleged to have recorded cautioned statemen of the 2nd accused, but according to the arresting officer for 2nd accused with regards to the time of arrest of the 2nd Page 32 of 63 accused person, the cautioned statement of the 2nd accused was taken out of time and therefore exhibit P8 should not weighed. Meanwhile the cautioned statement is valueless for it did not lead into the discovery of the important evidence connected to the offence of murder. PW 10 testimony as well supported the evidence of PW6 which was to the effect that the late supersami was murdered at Bunda on 28/2/2018 and not at Kashishi in Lamadi in Simiyu region on 27/2/2018 as alleged by the prosecution. The prosecution failed to give proper explanation concerning with the association of George Zakayo Ogutu with the death of the late supersami as the defence side raised this doubt from the beginning. The prosecution failed to bring the following facts about George Zakayo Ogutu; who arrested George Ogutu, when was George Zakayo Ogutu arrested, why was George Zakayo Ogutu joined in the case concerning with murder of supersami, what was recorded by the police as the caution statement of Geroge Zakayo Ogutu. With all these doubts, Mr. Frank makes a conviction that the defence by the accused persons need to be given weight as was stated by the 1st accused in police custody and elaborated by Amini Mzuri to the 1st accused and as per the cautioned statement of one George Page 33 of 63 Zakayo Ogutu. The prosecution side have failed to prove their case beyond reasonable doubts. Having heard the witnesses’ story and submissions in this case, there is no scintilla of doubt that Josia Metusela Mzuri @SuperSami is dead, and he died of unnatural death, this is in accordance with the evidence of PW1, PW4, PW5, PW7, PW13 who witnessed the remains of the said Josia Methusela Mzuri at his evacuation and later on post mortem examination of the deceased body and testified that it was the remains of the said Josiah Methusela Mzuri and it had multiple cut wounds on his body such as on head, left chest, on neck/throat and both legs were cut off completely separated from the thighs (lower parts), this evidence was corroborated with the Post mortem report (Exhibit P4). The issue for determination is who caused the deceased's death. To begin with, it is a common legal principle that in criminal law the burden of proof lies to the prosecution and the standard is beyond reasonable doubts see Section 110 and 112 read together with section 3 (2) (a) of the Evidence Act [Cap 6 RE 2019]. These two concepts were interpreted in the case of Woodmington Vs OPP, (1935) AC 462. In the case of Christian Page 34 of 63 Kale & Another Vs. The Republic (1992) T.L.R 302 CAT and John Makorobera & Another Vs. The Republic (2002) T.L.R 296, firmly held that the accused person should only be convicted of an offence he is charged with on the basis of the strength of the prosecution case and not on the weakness of the defense case. In this case at hand the prosecution relied on circumstantial evidence to prove their case. There are numerous cases which dictate that in case where the court has to rely on circumstantial evidence the evidence to be relied upon it has to irresistibly point the accused on the guilty of the offence charged and no one else. On other words it should not bring more than one interpretation. See the case of Augustino Lodaru v. Republic, Criminal Appeal No. 90 of 2013 (unreported) the Court stated that: "We should note at the outset that it is settled law that a court of law may ground a conviction based solely on circumstantial evidence. This is so where the said evidence irresistibly led to the inference that it was the appellant and nobody else who committed the offence. Such evidence must, also, be incapable of more than one interpretation and the chain of linking such evidence must be unbroken" Page 35 of 63 See also the case of Gabriel Simon Mnyele vs Republic, (Criminal Appeal 437 of 2007) [2010] TZCA 97 (22 December 2010), Justine Julius and Others vs Republic, Criminal Appeal No. 155 of 2005 (unreported), Simon Msoke vs Republic, (1958) EA 715A and John Magulandongo vs Republic, Criminal Appeal No. 18 of 2004 (unreported). From the mentioned cases I am settled in my mind that when a case relies on circumstantial evidence such evidence must satisfy three tests: i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established, (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused: (iii) the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. Page 36 of 63 Therefore, in this case I shall be guided by the said principles to establish whether or not the available circumstantial evidence irresistibly points to the guilt of the accused persons. The interests of criminal law, has always been this: the guilty are convicted and accordingly sentenced and that the innocent are declared so and acquitted. Outside this, is not the interest of the criminal law and its justice and that has to be done even if the heavens fall but justice is seen done. Scanning the evidence by the prosecution, it is clear that none of their witnesses firmly testified seeing the said murder being committed against the said deceased Josia Metusela Mzuri@Supersami. What is evidently clear, is the fact that the vehicle he was using immediately before his demise, was recovered burnt within part of Serengeti National Park – Western wing – Bunda area (nearer Ndaheka entry gate) (exhibit P.10). There is evidence also that the said vehicle was few days before its burnt driven there by PW3 under the instructions of the 1st accused accompanied by the second accused together with another third person, who was not party of this proceeding. Yet few days later, the body of the said deceased, was recovered floating in river Barageti closer to Ndaheka area – Bunda (PW4, PW5, PW7, PW11, PW12, PW13). The Page 37 of 63 floating cargo upon being fished out from the river, it was dully identified to be the remains of the missing supersami (Josia Metusela Mzuri @Supersami) as testified by PW1, PW5, PW13 – wife, sibling and friend of the deceased person respectively. Further to that, the sulphate bag covering the said remains were identified by the driver PW3 suggesting that it looked similar to the cargo he had taken from the home place of John Kadaso at Lamadi (kashiri hamlet) and then offloaded it at closer to Lamadi center near the river. He identified by the bag covering the cargo and the ropes holding it, in which he was told to be the remains of chui trophy (tiger). As the said body of the deceased had multiple cut wounds on its head, chest, throat and its legs chopped off/amputated, the postmortem report established that the cause of the said death was due to multiple cut wounds. With this evidence, the prosecution is linking the duo accused persons with the said murder as per testimony of PW3, PW6 and PW9 from whom we get the prosecution’s story how the said murder was committed. The defense on the other hand are disputing the said prosecution’s evidence, saying that the responsible persons are not them but others, and the 1st accused person while denying his responsibility on it on a plea of alibi, further alleges that it was George Page 38 of 63 Zakayo Ogutu who was the murderer and that himself has been implicated in this matter, simply because he was forced to provide the gold reserve he had with the deceased. Together with the above evidence, the prosecution is pressing for the accused persons’ involvement also relying on the confession evidence procured from the second accused person (exhibit P.8). I am aware that the confession evidence – P.8 faced a stiff objection on its admissibility on the manner it was procured and the timing when it was recorded, that it was procured beyond the provided statutory time. With the admitted exhibit P.8, I reserved my deliberation on one legal issue whether the position in the cases of Chacha Jeremiah Mrimi, Yusufu Masala and Nyerere Nyague relaxes the conditions set under s. 51 of the CPA on the extension of time. Is it an automatic extension of time just by progression of investigation? On this, despite admitting it as court exhibit, I reserved my final deliberation whether the said exhibit P.8 is legally wealth of consideration for the prosecution’s case. Now, this is my deliberation. To start with, I have found it worth to reproduce the said relevant section (Section 50(1)& (2) of the CPA dictating the recording of an accused person’s statement: Page 39 of 63 50.-(1) For the purpose of this Act, the period available for interviewing a person who is in restraint in respect of an offence is- (a) subject to paragraph (b), the basic period available for interviewing the person, that is to say, the period of four hours commencing at the time when he was taken under restraint in respect of the offence; (b) if the basic period available for interviewing the person is extended under section 51, the basic period as so extended. (2) In calculating a period available for interviewing a person who is under restraint in respect of an offence, there shall not be reckoned as part of that period any time while the police officer investigating the offence refrains from interviewing the person, or causing the person to do any act connected with the investigation of the offence- (a) while the person is, after being taken under restraint, being conveyed to a police station or other place for any purpose connected with the investigation; (b) for the purpose of- Page 40 of 63 (i) enabling the person to arrange, or attempt to arrange, for the attendance of a lawyer; (ii) enabling the police officer to communicate, or attempt to communicate with any person whom he is required by section 54 to communicate in connection with the investigation of the offence; (iii) enabling the person to communicate, or attempt to communicate, with any person with whom he is, under this Act, entitled to communicate; or (iv) arranging, or attempting to arrange, for the attendance of a person who, under the provisions of this Act is required to be present during an interview with the person under restraint or while the person under restraint is doing an act in connection with the investigation; (c) while awaiting the arrival of a person referred to in subparagraph (iv) of paragraph (b); or Page 41 of 63 (d) while the person under restraint is consulting with a lawyer. The exempting section 51 of the CPA, provides the following: 51.-(1) Where a person is in lawful custody in respect of an offence during the basic period available for interviewing a person, but has not been charged with the offence, and it appears to the police officer in charge of investigating the offence, for reasonable cause, that it is necessary that the person be further interviewed, he may— (a) extend the interview for a period not exceeding eight hours and inform the person concerned accordingly; or (b) either before the expiration of the original period or that of the extended period, make application to a magistrate for a further extension of that period. It is the prosecution’s submission that so long as PW6 – the arresting officer was still going with the investigation of the case at Mwanza, Bariadi and Bunda. Thus, following such investigation going on, his statement could not be promptly taken down as he was still assisting in Page 42 of 63 the investigation process. Thus, as per s. 50(2) of the CPA, clearly states what is to be reckoned and not to be reckoned in computing such time. In my reading to the testimony of PW6, I have not been able to find any evidence what investigation was he going on with the said 2nd accused to make him delay record his statement promptly as per law. By the way, when cross-examined as to where the said accused had been passed and where had he been all that period from the date of his arrest to 5th April 2018 when he was recorded his statement, PW6 replied: From Kirumba, we passed through Bunda, and at Kirumba he had been there from 28th March to 5th April 2018. So it is my considered view that the legal justification as to why the said statement was late recorded from the accused person, there has not been legal justification. By the way, reading the cited cases of Chacha Jeremiah Mrimi, Yusufu Masala and Nyerere Nyague I have not seen them automatically relaxing the conditions set under section 50 (1) of the CPA on the extension of time. Extension of time to record an accused person’s statement, upon his arraignment to a police station is not by choice but by law. The police officer incharge of investigation, has no that reserved right by option/choice but as per the law. He has either to comply with the dictate of the law, or to waive it. The legal discretion as provided under section 169 of the CPA should not be an open gate for every Page 43 of 63 pleasure by the prosecution but in very special circumstances. It is my wakeup call and a gentle reminder to the investigation, that adherence to the law in investigation process is not by matter of choice but compliance. The discretion of the court should not be arbitrarily used where there is vivid negligence. Courts of law should not be used to savage such extreme negligence and the officers incharge of criminal investigation should always be on top of issues on every investigation process going on in his office. In the current matter, there was extreme reluctance on the manner the second accused person was supposed to be dealt with immediately after being procured. That said, the admitted exhibit P.8 of this case, lacks legal evidential weight for its consideration as its procurement was in contravention of the law. This being a court of law, has to be anxious of it as my oath of office says I will discharge my duties in safeguarding the Constitution legally established and its laws. Now, seeing officers contravening the law in their discharge of duties, does not accord my protection. That equally goes to the alleged recovered pistol from his motorcycle. If the said motorcycle was arrested on 28th March 2018 at Mwanza and kept it under police custody – Mwanza, how come its search being done at Musoma on 5th April 2018 and then the alleged pistol is recovered? Page 44 of 63 What prompted that subsequent search? It not being promptly recovered at Mwanza, in the absence of convincing explanations, we can hardly consider that search as a reliable one. The similar doubt can be extended to the search done at the alleged home of John Simon Kadaso (Lamadi). How come that both witnesses of the said search could not be traced at the time of their testimony in court? The provided explanations that they are both dead, was not legally established. Thus, the products of those both search cannot be legally acted upon on the basis of these queries. However, whether the said murder alleged to be done at Kashishi Kalago village in Busega District – Simiyu or Bunda, and whether it was on 27th February 2018 or 28th February 2018 as per evidence in record, in my considered view as per facts of this case, is not a relevant doubt or legal error to affect the legal liability. I say so, basing on the established facts of this case that, the two towns are bordering each other and thus there is a possibility either the said offence was committed at Kashishi kalago village or Bunda area. I agree with Mr. Frank Samwel, that the circumstances surrounding the case have not been perfectly clear as to the exact date of murder and the point of commission. However, in both situations, the legality of this case and Page 45 of 63 the jurisdiction of this court have not been affected either. The High Court being one, is not precluded from the territorial jurisdiction. Neither the exact date of its commission as per close connected facts of this case, cannot in my considered view be the fact in issue. It does not serve any good purpose if on the said dates and at both areas the accused persons were spotted being in dubious dealings. And thus cannot genuinely form the reasonable legal doubt. That notwithstanding, I now revert back to the central position, whether on the remaining available evidence of PW3, is it capable of making conviction against the accused persons? As stated earlier that, the basis of the current case is essentially founded on the evidence of PW3, PW6, and PW9. Now the evidence of PW9 (exhibit P.8) being not less of probative value, I have to weigh it together with the evidence of PW3 and PW6 in collaboration with the other evidence in record (PW4, PW7, PW10, PW15) and make a final conclusion of the case. A saying that in the world advanced with technology – technological world, we have mainly to fear two things: God and technology, gets a little breath in this case. In this case, PW6 says how he dealt with cyber investigation to establish the culprits. Working on the cell phone number being used by the missing Josia Methusela Mzuri Page 46 of 63 @ Supersami (0755006130) after being reported missing, had been able to track other numbers in active communication with him to find out his where about. In conjunction with the intelligent information gathered by PW15 – OC CID Nyamagana, that John Simon Kadaso was the person last seen with the missing Supersami on 27th February 2018 at Buzuruga area. The cell phone number of Mr. John Simon Kadaso was named to be 0745084890. PW6 had been able to tell the court how these two numbers were in active communication as between 26th February 2018 to 27th February 2018. P.9 exhibit (Vodacom sim card data report in respect of sim card registered as: 255755006130 was registered in the name of Josiah Methusela Mzuri on 10th June 2010). The said sim card was using a handset phone with imei No. 355093080168020 as per sim data from 19th February 2018 to 28th February 2018. On relevant dates of this case, the said cell phone number of the alleged missing Josiah Methusela Mzuri seems to have been in active communication with cell phone number alleged to be owned by Mr. John Simon Kadaso (255745084890). The P9 exhibit establishes the following: on 26th February 2018 at 8.50hrs, at 8.56hrs, at 12.20 hrs, the number 255745084890 was an incoming call to 255755006130. It then made a call to that number at 18.26repeated at 18.29 hrs, the number 255745084890 was an incoming call to the Page 47 of 63 number of Josiah Methusela Mzuri 255755006130. The calling transaction repeated on the same date but at 19.30hrs. However, at 19.39 hrs and 21.05 hrs the Josiah’s sim card made calls (outgoing call) and received. By that time, the network provided that the said Josiah was making calls aided by network poles at, Mwanza Central Buzuruga 2 – ZQ, Buzuruga 2 – ZQ, Nyamagana and Kirumba respectively. As is this is not enough, on the material date of 27th February 2018 at 8.30hrs, again the number of Josiah Methusela Mzuri 255755006130 received a call from number 255745084890 by use of Nyakato network pole. They re-communicated at 16.26hrs and 18.59hrs of the same date by use of 3G – Buzuruga2 _ZQ network pole. The last communication between the number of Josiah Methusela Mzuri via 255755006130 and John Simon Kadaso vide the same number 255745084890 was on 27th February 2018 at 21.36 the former being at Simiwi HTT – network pole (Magu). The said Josiah’s sim card went off communication on 28th February 2018 at 12.03 while at Bunda Town using network pole Bunda_Town2. From this communication profile, what can be gathered is the fact that as per testimony of PW6 which was not challenged by the first accused that the said cell phone number 255745084890 which was Page 48 of 63 registered by name of John Simon Kadaso had been on air and use throughout the 26th, February 2018 to 28th February 2018 and in some communication with the Josiah’s cell phone. This underscores the fact that upon his release on bail on 26th February 2018 as per PW15’s testimony and DW1’s own testimony, the first accused was not under police custody as alleged and as by DW2 and DW3 – close colleagues of the first accused. That said, relying on the principle that there should be credence to witnesses, I wonder how unchallenged testimony of PW6, PW10 in respect of the communication profile between these cell phone communications can be underestimated. Thus, the fact that DW2 had sent food to his co-parent/sexual partner (1st accused person) at Nyakato police on 27th February 2018 is not conclusive proof of the alleged detention where there is strong evidence that the said John Simon Kadaso was already released on bail from 26th February 2018 immediately after his arrest. That also defeats the defense of alibi he registered in court that as from 23rd February to 1st March 2018 when the alleged murder was committed, he was under police detention. That fact is far from truth as per his own evidence that he was released on bail on 26th February 2018. I may consider it mainly as a kick of a dying horse and not a sufficient legal reasonable doubt. Page 49 of 63 That said, I now come to the central story of the case as told by PW3. The only impression one may quickly consider is whether, PW3 is a reliable witness. In the case of Goodluck Kyando Vs. Republic, [2006] T.L.R 363, puts it clear that it is trite law that every witness is entitled to credence and must be believed and his testimony accepted unless there are good and cogent reasons not believing a witness. See also Mathias Bundala Vs. Rep, Criminal Appeal No. 62 of 2004, Court of Appeal at Mwanza and section 146(2) of Tanzania Evidence Act, Cap 6. From what PW3 has stated in court, I have no even a grain of reason to hesitate on its truthfulness that on 27th February 2018 he had been with John Simon Kadaso and Paul Mashauri at Lamadi (Kashiri hamlet) to his home village. In a further consideration that the said PW3 had been hired driving the said motor vehicle belonging/used by the deceased shortly prior to his gone missing, and recovered burnt at a point left by PW3 (within Serengeti National Park), and that the said vehicle had been identified to be the one used by the deceased (P.10 – T.323 BSF2 Nissan). Further consideration that the said vehicle also carried a cargo alleged to be tiger trophy similar in looking with that recovered floating cargo after it had been shortly thrown into a river, though that evidence is not so direct, but the connectivity of events being in unbroken chain, it is very relevant to connect the said murder Page 50 of 63 and the duo accused persons in this case. I say so because it should be noted that it is settled law that a court of law may ground a conviction based solely on circumstantial evidence. This is so where the said evidence irresistibly leads to the inference that it was the accused person and nobody else who might have committed the said offence. Such evidence must, also, be incapable of more than one interpretation and the chain of linking such evidence must be unbroken as it is in the current case. That the 1st accused person was bailed out by the deceased, a day preceding his demise/missing. That, soon after, he was last seen with the deceased on the evening preceding his missing (27 th February 2018), that he was also in active communication with the said deceased Josiah Methusela Mzuri @ Supersami throughout of 27th day of February 2018 and that eventually he hired PW3 for a drive service (Lamadi – Bunda- Lamadi – Serengeti National Park) where in between the alleged cargo was offloaded and possibly damped into the river water and recovered some days floating over the river. The roped cargo is then identified by PW3 being similar to that one carried and dropped under the command of the 1st accused being accompanied amongst others by the second accused person. The manner the 1st accused was arrested being under the roof hidden few days after the alleged commission, raises nothing other than criminal inference on active Page 51 of 63 involvement on the commission of the said offence. His reply that he was hidden for fear of his money allegedly sold his car, is far from truth as the purported sale is said to be in 2017 but rather precisely corroborating the testimony of PW3 that just after he had left that car in the Serengeti National Park, its morning time is when he saw the first accused person giving some money the 2nd accused person out of a huge bundle of money he had carried approximately 10,000,000/= as they were dispersing from Lamadi. My understanding of the testimony of PW3, PW6, PW10 in one hand and that of PW1, PW4, PW7, PW11, PW12, PW14, and PW15 on the other hand collectively make a close link how the said offence was committed. And by the testimony of PW3, there is no way that the connectivity of evidence though on circumstantial basis, is unbroken and in no way can that inference of guilty cannot be drawn against them. In a total accumulation of the above evidence, firstly; I am settled in my mind that the said evidence has the circumstances from which an inference of guilt has been sufficiently drawn, as it has been cogently and firmly established. Secondly, that those circumstances explained above definitely established an unerringly pointing towards the guilt of these accused persons. Thirdly, that the circumstances taken Page 52 of 63 cumulatively have formed a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. For circumstantial evidence to ground a conviction against the accused, the law is settled that such circumstantial evidence must be; (i) That the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established, and that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused, and that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. See Julius Justine & Others v. Republic, Criminal Appeal No. 155 of 2005, CAT, Mwanza Registry (unreported). (ii) That the inculpatory facts are inconsistent with the innocence of the accused person and incapable of explanation upon any other reasonable hypothesis than that of guilt; and that before drawing the inference of guilt from circumstantial evidence, it is necessary to be sure that there are no other co-existing Page 53 of 63 circumstances which would weaken or destroy the inference. See Simoni Msoke v. R. (supra) and John Magula Ndongo v. Republic, Criminal Appeal No. 18 of 2004 CAT, Dar es Salaam (unreported). (iii) That the evidence must irresistibly point to the guilt of the accused to the exclusion of any other person. See Shaban Mpunzu@ Elisha Mpunzu v. Republic, Criminal Appeal No. 12 of 2002 CAT, Mwanza Registry (unreported). (iv) That each link in the chain must be carefully tested and, if in the end, it does not lead to the irresistible conclusion of the accused’s guilt, the whole chain must be rejected. See Samson Daniel v. R. (supra). (v) That the circumstantial evidence under consideration must be that of the surrounding circumstances which, by undesigned coincidence is capable of proving a proposition with the accuracy of mathematics. See Julius Justine & Others v. 19 Republic, Criminal Appeal No. 155 of 2005 CAT, Mwanza Registry (unreported). Page 54 of 63 (vi) That the facts from which an inference adverse to the accused is sought to be drawn must be proved beyond reasonable doubt and must be connected with the facts which the inference is to be inferred. See Ally Bakari v. Republic [1992] T.L.R. 10, Anetha Kapazya v. Republic, Criminal Appeal No. 69 of 2012, CAT, Mbeya Registry (unreported). (vii) That the alternative possibility must not be fanciful; it must be plausible. Doubt about the guilt of an accused can count only if such doubt is reasonable. The circumstances must also be looked at, and considered, in their totality. See Jumanne Hamis @ Upepo v. Republic, Criminal Appeal No. 329 of 2009, CAT, Tanga Registry and Sadiki Ally Mkindi v. D.P.P., Criminal Appeal No. 207 of 2009, CAT, Arusha Registry (both unreported). I think that some of these principles will guide me in the ensuing discussion on reliability or not of this kind of evidence. Again, the strength or otherwise of the doctrine of the person last seen with the deceased alive depends solely on the explanation which may be given by such person to displace the presumption that he/she Page 55 of 63 may be the culprit behind the death of such person. This was best expressed by the Court of Appeal in the case of Mathayo Mwalimu and Another v. Republic, Criminal Appeal No. 147 of 2008, CAT, Dodoma Registry (unreported). According to that case, where a person is alleged to have been the last person to be seen with the deceased, in the absence of a plausible explanation to explain away the circumstances leading to the death, he/she will be presumed to be the killer. See also the cases of Richard Matangule v. Republic (supra). I am aware that there are people who consider circumstantial evidence as weak and unreliable. In my view, that is a misconception. As was restated in the cases of Samson Daniel v. R. (1934) 1 E.A.C.A. 154 and R. v. Sabudin Merali and Umedali Merali, Uganda High, Criminal Appeal No. 220 of 1963 (unreported), the mere fact that evidence is circumstantial is far from saying that the prosecution case is weak because circumstantial evidence is sometimes the best evidence. In the latter case of R. v. Sabudin Merali and Umedali Merali , Sir Udo Udoma, C.J. said that:- Page 56 of 63 “…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. As far as the testimonial evidence of the current case is concerned, I am confident that, what PW3 has stated in a very clear way corroborated with what is stated by PW6. Lastly is whether the said killing is murder or what. The killing is murder if it constitutes malice aforethought. What constitutes malice aforethought or intention to kill is well defined by laws, literature and decided cases (see section 200 of the Penal Code and the case of Enock Kipela vs The Republic (Criminal Appeal 150 of 1994) [1999] TZCA 7 (10 June 1999). According to the Black’s Law Dictionary, malice aforethought is defined as: “A pre-determination to commit an act without legal justification or excuse…. An intent, at the time of killing, wilfully to take the life of human being, or an intent wilfully to act in callous and wanton disregard of the consequences to human life: but “malice Page 57 of 63 aforethought” does not necessarily imply any ill will, spite or hatred towards the individual killed” (see Criminal Law in Tanzania, A Case Digest, by Dr Fauz Twaib and Daudi Kinywafu at page 335). In the light of the herein above analysis, observations and findings, it is abundantly clear that, the manner the said multiple cut wounds were inflicted as identified on the said dead body including the amputation of the both legs (exhibit P.3 &P.4), there is no other suggestion that the doers had no other option than one, killing the deceased. That means, they premeditated to make him dead. That is murder in law. I find that the accuseds’ defence as not casting any reasonable doubts to shake the prosecution’s case. In the case of Goodluck Kyando Vs. Republic, [2006] T.L.R 363, puts it clear that it is trite law that every witness is entitled to credence and must be believed and his testimony accepted unless there are good and cogent reasons not believing a witness. See also Mathias Bundala Vs. Rep, Criminal Appeal No. 62 of 2004, Court of Appeal at Mwanza and section 146(2) of Tanzania Evidence Act, Cap 6. The issue of George Zakayo Ogutu being the real murderer and not him (1st accused person), as per his testimony in court, cannot Page 58 of 63 legally be said to be a real legal reasonable doubt. One cannot just collect stories from unknown such as a stationery product and confidently you want to make this court admit the purported dust evidence and prop on that as one’s defense. This is a court of law, it must not accept the rubbishes and baptize them as legal evidence. If at all the first accused was really informed by the said George Zakayo Ogutu as the one who murdered his blood friend, if mindful why he failed to seek audience from the prison incharge so that he could tell all that to the incharge of investigation. Unless he was happy of the said detention while he then knew the real culprit. In essence what the defense were dully charged was only to point out the legal reasonable doubt against the prosecution’s story/evidence and bringing irrelevant stories. I thus reject the accuseds’ defence and find that the prosecution case has been sufficiently proved beyond any reasonable doubt against the accused persons John Simon Kadaso and Paulo Mashauri @ Nchimika Rubembeja @ Jam Marshall. In reaching this guilt finding, I have sufficiently warned myself on the danger of placing much reliance on the evidence of the former co-accused person (PW3). However, on my full digest of his evidence on how he was naturally flowing the Page 59 of 63 episodic events leading to the reaching points of the home village of the first accused person, the guest houses, Lamadi River, and Serengeti National Park, one can hardly believe to be a fictious story just to hook the accused persons. By the way for what good gain? The witness has always been steady, composed and so natural in flowing up the events. During cross-examination, he even clarified more facts of the said episodic events. Though he remained as co-accused person from then (March 2018 to January 2022), a simple glaring question would be, did it take all that four years to gather what PW3 said in court? The answer is obtained from the testimony of PW6 and PW4. With PW6’s testimony suggests, perhaps PW3 was trying to exonerate himself from the criminal responsibility by hiding some useful facts. PW4 says, the potentiality of PW3 was so high. Thus, even if first was treated as an accused person in the case, but on the facts he had narrated to them, they also treated him with great care and always had been placed in profile and in different prisons or cells just to make him not polluted. Anyway, as investigation is an art and science, there should be scrutiny to everything told. That notwithstanding, PW3 looked a precious metal witness in other words. Thus, he was a good reliable witness who deserved all that trust. My fare comment to the prosecution, with all that stated by PW3, he deserved more security attention and not detention Page 60 of 63 as done. He ought to have been put in a five-star hotel for his security and survival, so potential he was. Anyway, may be on the level of our investigation by then, that was the safest mode of keeping him! Joke aside, there is no way, one can vividly place any legal doubt on that testimony. Coupled with the totality of the prosecution evidence adduced during the trial via PW4, PW6, PW7, PW10, PW12, PW13, PW14, PW15 and exhibits P3, P4, P5, P9, P10, P11 & P12 which in fact corroborate each other, has left no doubt but a real and justified impression that the accused persons had either planned and/or participated to the commission of the offence of murder against the deceased Josiah Methusela Mzuri @ supersami. Where circumstantial evidence is so connected and its surrounding circumstances which, by undesigned coincidence is capable of proving a proposition with the accuracy of mathematics it is reliable and actionable when that chain is intact and unbroken as it is the present case. All this said and legally considered, both accused persons being found guilty are hereby accordingly convicted of the alleged murder as charged. Page 61 of 63 F. H. Mahimbali Judge 30/04/2024 Considering the punishment for murder is only one known as per law, the accused persons are hereby sentenced to suffer death by hanging pursuant to section 197 of the Penal Code, Cap 16 R.E 2019 as read together with section 322 (1) & (2) of the CPA, Cap 20 R.E 2019. F. H. Mahimbali Judge 30/04/2024 Right of Appeal fully explained to any aggrieved party under section 323 of the CPA, Cap 20 R.E 2019. DATED at Shinyanga this 30th day of April, 2024. F.H. Mahimbali Judge Judgment delivered today the 30th day of April, 2024 in the presence of Mr. Daniel Masambu, Rehema Sakafu learned state attorneys for the Page 62 of 63 Republic, Mr. Frank Samwel and Erika Kundi Nyenji learned advocates for defense and Ms Beatrice, RMA, present in open Court. F. H. Mahimbali Judge 30/4/2024 Page 63 of 63