CRIMINAL APPEAL NO 312 OF 2020 MAYUNGA MWENELWA VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA CORAM: MWANPAMBO, J.A.. MASHAKA. 3.A. And MDEMU. J.A/l CRIMINAL APPEAL NO. 312 OF 2020 MAYUNGA MWENELWA.............................................................APPELLANT VERSUS THE REPUBLIC....................................................................... RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Mwanza) (Manvanda, J.) dated the 26th day of July, 2020 in HC Criminal Sessions Case No. 89 of 2019 JUDGMENT OF THE COURT 5th & 19th July, 2024 MASHAKA, J.A.: The appellant, Mayunga Mwenelwa, is the brother of the deceased Nyanzala Mwenelwa who went missing on 18/7/2015 and her body was found buried in a pit near the appellant's house. He was charged with murder contrary to section 196 and 197 of the Penal Code before the High Court of Tanzania sitting in Mwanza in HC Criminal Sessions Case No. 89 of 2019. It was alleged that, on 18/7/2015 at Manguluma Village within Kwimba District, in Mwanza Region, he murdered Nyanzala Mwenelwa. Based on the prosecution evidence presented before the trial court, he was found guilty, convicted and was sentenced to death by hanging. Aggrieved, the appellant has lodged this appeal to contest the decision of the High Court. A brief account underlying the conviction of the appellant is that on the fateful date, Jombele Mwenelwa (PW1) another brother of the deceased while watering seedlings at his garden, saw the deceased carrying a sulphate bag commonly known as 'kirobd heading to her farm to harvest potatoes. After finishing his errands, PW1 left the deceased harvesting potatoes and went to Jojilo village. When he returned, Kinda Emmanuel, the son of the deceased informed him that her mother was nowhere to be found and he was looking for her. The duo decided to go to the farm where they found a bag of potatoes, a hoe and one bucket full of potatoes. They started searching for her and they also inquired from some of their relatives, without success. The information was conveyed to the husband of the deceased, Malimi Koroboi (PW4) who home the next day and convened a family meeting and then reported to the hamlet leader, one Shilala Lyagamama (PW2). On 21/7/2015 Ngusa John, a Village Security leader (PW3) raised an alarm to the villagers and a search for the deceased was launched 2 involving the villagers. Again, the search was unsuccessful. Afterwards, the village leaders directed the search to be continued by the relatives of the deceased, while he and his team continued with covert investigation. On 30/7/2015, the village leaders including PW2 and PW3 suspected the appellant as he had discontinued to search for the deceased. The leaders interrogated close relatives of the deceased namely, PW1, Kashinje Mwanelwa, PW4 and the appellant at a nearby bush. PW2 and PW3 discovered from the covert investigation that there was a pit latrine dug at the appellant's home which had been recently filled up by the appellant and a fire had start burning on the same day the deceased disappeared. When probed by PW2, the appellant stated that he had killed a dog and threw it in the pit. When he was interrogated further, he confessed to have killed the deceased and he had buried her body in the pit. According to the evidence of PW1, PW2, PW3, PW4, it was the appellant who led them to the said pit near his house and they dug it a bit in proof of what he had said, and they saw a bone. They stopped digging further and PW3 informed the Village Executive Officer (VEO) and Village Chairman who thereafter reported the incident to the police. At around 10:30 hours that same day, F. 756 D/CPL Mgaya (PW6), a police officer arrived at the crime scene and found the appellant under the custody of the leaders. The appellant confessed again before PW6 that he murdered the deceased and showed him the place where he had buried her. At the pit which had been slightly dug, PW6 saw a bone. Due to the emotions running high and anger shown by the villagers who had gathered at the crime scene, PW6 took the appellant to Ngudu police station where he handed him to D.56 D/Sgt Jones (PW7) for interrogation. PW6 returned to the crime scene in the company of Dr. Suke Kubita Magembe (PW5) with an exhumation permit, that afternoon. The pit was unearthed and a skull and bones of a human body which had started to decompose, a knife and pieces of burnt flesh were discovered. PW1, PW2, PW3 and PW4 identified the body of the deceased from the remains of the clothes she was wearing before her death and her plaited hair braids on the unburnt side of the scalp of her head. PW5 then conducted a post mortem examination and thereafter the relatives were allowed to bury the deceased. During interrogation in the presence of his relative Charles Mahule, a confession of the appellant was recorded by PW7 and the said cautioned statement was tendered and admitted in evidence as exhibit P3 after the trial court overruled the objection by the appellant. Also, the appellant was taken before a justice of peace one Michael Thomas Turuka (PW8) at Ngudu Urban Primary Court and he recorded an extra judicial statement of the appellant confessing his involvement in the murder. The report was admitted in evidence without objection as exhibit P4. In his defence, the appellant challenged the prosecution account. The appellant contended that he confessed to the discovery of the deceased's body because a group of people and the relatives begun to beat him, and in order to save himself, he decided to confess. He further testified that during interrogation, he denied to have killed the deceased but the police officers decided to beat him and in trying to save his life, he decided to confess the offence. After analyzing the evidence of eight prosecution witnesses and four exhibits as well as the defense evidence, the trial court was satisfied that there was sufficient evidence to prove beyond reasonable doubt that the appellant killed the deceased with malice aforethought. Consequently, the appellant was found guilty, convicted and sentenced to death by hanging. 5 Undaunted, the appellant is before the Court to demonstrate his innocence. The appellant raised six grounds in his memorandum of appeal lodged on 21/10/2020 and later raised four grounds in a supplementary memorandum of appeal lodged on 27/06/2024. At the hearing of the appeal, the appellant was present in person represented by Mr. Deocles Rutahindurwa, learned counsel. The respondent Republic was represented by Mr. Frank Nchanila assisted by Mr. Evance Kaiza and Ms. Tabitha Zakayo, all learned State Attorneys resisting the appeal. At the outset, Mr. Deocles Rutahindurwa informed the Court that after consultation with the appellant, he abandoned the supplementary memorandum of appeal. The appeal raises the following grounds after paraphrasing them: "i. That, the learned trial Judge grossly and incurably erred in law and fact to convict and sentence the appellant based on circumstantial evidence which the conditions precedent was not disclosed as the law requires. 2. That, the learned trial Judge erred in law and fact to convict and sentence the appellant by relying on a confessional statement in which its ingredients were not cieariy elaborated to warrant conviction o f the appellant. 3. That, the learned trial Judge erred in law and fact to convict and sentence the appellant basing on extra judicial statement (exhibit P4) without considering that the said documentary evidence can be used in conviction where the matter o f prudence corroborative evidence is solved. 4. That, the cautioned statement (exhibit P3) was recorded while the appellant was not a free agent when PW7 D/SSGT Jones recorded the appellant's cautioned statement and ought to have been expunged from the list o f documentary evidence. 5. That, there was no scientific proof that the remains at the pit were those o f Nyanzala Mweneiwa, as none o f the prosecution witnesses witnessed the appellant murder Nyanzala Mweneiwa or burying her body in the pit. 6. That, the learned trialjudge wrongly acted on weak and doubtful evidence as the prosecution failed to prove the offence beyond reasonable doubt." During hearing of the appeal, Mr. Rutahindurwa prayed to abandon ground 2 and renumber the remaining five grounds of appeal upon consultation with the appellant. We shall begin with ground 2. 7 The appellant's grievance in ground 2, is that there was no independent evidence to corroborate what was stated in the extra judicial statement admitted in evidence as exhibit P4. The learned counsel argued that given the circumstances, there was no evidence in the record of appeal to prove that the appellant was the one who committed the offence. Referring to the case of Majaliwa Ernest v. Republic (Criminal Appeal No. 465 of 2022) [2024] TZCA 313 (7 May, 2024) TANZLII, he argued that much as the appellant did not object during the trial, it was upon the trial court to determine if the appellant was a free agent when exhibit P4 was taken. It was his contention that the appellant was not in a friendly environment when it was recorded, hence urged the Court to hold that the trial court wrongly convicted the appellant relying on exhibit P4. In reply, Mr. Nchanila argued that the complaint is misconceived as it is only when a repudiated confession obtained under threats when corroboration is required. He further submitted that as the record of appeal shows at page 104, exhibit P4 was admitted in evidence without objection from the appellant. Further to that, he described how the appellant detailed what he had done before PW8. That statement also corroborated the evidence of PW1, PW2, PW3 and PW4 in proving the 8 charge. Mr. Nchanila further contended that it was the appellant's oral confession which led to the discovery of the deceased's remains in a pit at his house as stated by PW1, PW2, PW3, PW4 and PW6. He bolstered his argument with the decision in Director of Public Prosecutions v. Fadhili Chengula (Criminal Appeal No. 565 of 2019) [2023] TZCA 17525 (24 August, 2023) TANZLII. Having heard the rival submissions in this ground and examined the record of appeal, it is our view that the complaint is baseless and at best an afterthought since admission of the extra judicial statement was not objected on any ground. Since the statement was neither retracted nor repudiated by the appellant, the appellant's argument that exhibit P4 needed corroboration is baseless. We therefore agree with the learned trial Judge's analysis of the law on exhibit P4 as well as his finding that the appellant was not beaten or threatened while at the justice of peace. He was a free agent and volunteered to give his truthful account of his acts. The confession implicated the appellant and it came from his own mouth. From the record, the appellant did not retract or repudiate his confession to PW8 when tendered before the trial court. On that account it was correctly found by the learned trial Judge at page 188 of the record that the 9 confession was voluntarily obtained. We reproduce the said passage hereunder: ”...in respect o f the extra judicial statement recorded by PW8, which was admitted without objection, the accused admitted before the court that he was free and there was no threat or torture when giving the extra judicial statement he voluntarily confessed to kill the deceased. The facts confessed in the extrajudicial statement also correlate with the facts obtained at the crime scene..." This ground fails. The appellant's complaint in ground three is that exhibit P3 ought to have been expunged from the record for the reason that when PW7 D/SSGT JONES recorded his cautioned statement, he was not a free agent. The argument made by learned counsel was similar to the previous complaint that the appellant was not a free agent because PW6 who arrested the appellant at the crime scene stated that he took him to Ngudu police station because of the hostile atmosphere at the said scene as angry people had gathered there. He further submitted that at the police station, even though PW7 was assigned to record exhibit P3 far away from the crime scene, the appellant was not a free agent. He added that the trial court should have considered those circumstances 10 even if there was no objection raised to its admission in evidence. Reference was made to the case of Majaliwa Ernest v. Republic (supra). In reply, Mr. Nchanila contended that in terms of sections 57 and 58 of Criminal Procedure Act, Cap 20 R.E 2019 (the CPA), PW7 followed the procedure to record exhibit P3. Also, a relative of the appellant one Charles Mahule was present during the recording, hence he was a free agent and freely agreed to record exhibit P3. He added further that, the objection which was raised by the appellant during trial was on the procedure and not in relation to the voluntariness. It is not in dispute that the trial court relied on the stated confessional statements, among other evidence to ground conviction. According to the record, the appellant confessed orally and in writing to killing Nyanzala Mwenelwa in three different settings; that is, at the crime scene, at Ngudu police station and before the justice of the peace at Ngudu Urban Primary Court. Regarding exhibit P3, the appellant is faulting the High Court for not having expunged it because he was not a free agent at the time when it was recorded by PW7. Upon our perusal of the record, it is clear that the complaint is belatedly raised before the Court. The objection raised by the learned ii advocate representing the appellant at that time and argued by both parties before the trial court was against admission of the cautioned statement premised on non-compliance of sections 57 and 58 of the CPA. At page 95 of the record of appeal, the learned trial Judge overruled the objection on the ground that such a statement may be taken by way of questions and answers or unsolicited narration of event, based on our decision in Ramadhani Salum v. Republic (Criminal Appeal 5 of 2004) [2007] TZCA 178 (16 March, 2007) TANZLII. Rule 72 (2) of the Tanzania Court of Appeal Rules, 2009, provides that a memorandum of appeal shall set out concise grounds of objection to the impugned decision. In this appeal, the appellant was required to raise points of law or fact which are alleged to have been wrongly decided. The complaint on whether or not the appellant was a free agent was not raised and determined wrongly by the trial court hence, an afterthought. Ground three also fails. Next, we shall revert to ground one whose complaint is targeted at the insufficiency of circumstantial evidence. The learned counsel for the appellant contended that the trial court erred to convict and sentence the appellant based on circumstantial evidence which did not prove the offence to the required standard. To bolster his argument, Mr. 12 Rutahindurwa referred us to the case of Majaliwa Ernest v. Republic (supra). He contended that all conditions necessary for grounding conviction have to be met by the prosecution. He pointed out that, one; the facts upon which the guilty is to be affirmed upon circumstantial evidence must be firmly established beyond reasonable doubt; two, the evidence should unerringly be pointing towards the guilt of the accused; three, all the pieces of evidence should form a chain leading to only one conclusion that the crime was committed by the accused and no one else, and; four, the evidence must be incapable of any explanation other than that of the guilt of the accused. It was his contention that the prosecution evidence did not pass the tests to justify conviction basing on circumstantial evidence. The learned counsel urged us to allow the appeal, quash the conviction, set aside the sentence and release the appellant from prison. Mr. Nchanila was in agreement that any reliance on circumstantial evidence in a criminal case has to pass the eight conditions in the light of the Court's decision in Michael Ouma William v. Republic (Criminal Appeal No. 683 of 2020) [2024] TZCA 309 (7 May, 2024) TANZLII. Showing how the prosecution case met the said test, he asserted that PW1 saw the deceased heading to her farm but she was 13 not seen again. He also relied on the evidence of PW2, PW3 and PW4 who testified that the deceased was not seen again. He contended that this evidence points to the guilt of the appellant and not anyone else and thus, the trial court correctly relied on such circumstantial evidence to find the appellant guilty and convicted him. It is undisputed that none of the prosecution witnesses saw the appellant committing the offence. The appellant's conviction was based on circumstantial evidence and confessional statements. The law on such kind of evidence is well settled that circumstantial evidence may ground a conviction where it irresistibly points to the guilt of the accused and is inconsistent with any reasonable hypothesis or explanation of innocence. See for instance in James Msumule @ Jembe and Others v. Republic, Criminal Appeal No. 284 of 2021 [2024] TZCA (13 March, 2024) TANZLII. The issue here is whether the prosecution adduced sufficient evidence establishing without any doubt that the appellant killed the deceased with malice aforethought. As correctly found by the High Court, the evidence of PW1, PW2, PW3, PW4 and PW6 as well as that of the accused himself, left nothing unturned that Nyanzala Mweneiwa was killed. There may be an argument, as contended by the appellant, that there was no expert 14 evidence to identify whether the bones unearthed in the pit belonged to the deceased. Notwithstanding that, PW1 and PW4 identified the deceased through her hair style, the type of dress the deceased was last seen wearing, she was eight months pregnant and exhibit PI tendered by PW5 indicated that the umbilical cord and placenta were found in the pelvic assessment signifying that the deceased was pregnant before her death. This evidence suffices to establish that the remains were of the deceased and no other person. The question on who was involved in the murder, as reasoned by the trial court, the appellant's oral confession to PW1, PW2, PW3, PW4 and PW6 at the first instant established the appellant's full participation in the incident. There was also evidence of the appellant's cautioned statement (exhibit P3) and extra judicial statement (exhibit P4) where the appellant confessed to killing the deceased. After examining objectively, the extra judicial statement and cautioned statement, we find that all threshold tests were met. In both statements, the appellant explained step by step everything he did before, during and even after the killing. Not only did he mention parts of the deceased's body he attacked, but also revealed the knife he used to end the life of Nyanzala Mwenelwa. At pages 156 through 162 of the 15 record of appeal, exhibit PI shows that there was a big cut wound on the skull and other parts of the body by a sharp object, a knife which was also buried and found together with the deceased. Therefore, as correctly found by the High Court, the prosecution successfully proved that the appellant killed the deceased, Nyanzala Mwenelwa with malice aforethought. Ground four relates to a grievance on the identification of the remains found in the pit that there was no evidence proving that it was of Nyanzala Mwenelwa and that the appellant had murdered and buried her in the said pit. Mr. Rutahindurwa contended that the only witness who saw the deceased a day before was PW1. He argued further that even exhibits PI and P2 say nothing to point to the appellant being seen killing the deceased as none of the prosecution witnesses witnessed the vicious act, or claimed to see the appellant burying her body in the said pit and there was no scientific proof that the remains found in the pit were those of Nyanzala Mwenelwa. Though he argued that PW1 identified the deceased by the dress she wore the previous day but there was no proof of any specific description as the dress is commonly worn by women. The learned counsel emphasized that there was a need to prove beyond reasonable doubt that the remains were of Nyanzala Mwenelwa 16 and referred us to the case of Seko Masalu @ Makoye v. Republic (Criminal Appeal No. 482 of 2020) [2024] TZCA 77 (21 February, 2024) TANZLII. In reply, Mr. Nchanila submitted that it was not disputed that Nyanzala was deceased as stated by PW1, PW2, PW3, PW4 and PW6, the oral confession by the appellant to the stated witnesses and in his defence that his sister was dead. He submitted that, PW4 identified the remains of his wife without a doubt from the dress, piece of kitenge, hair braids style found in the pit and she was eight months pregnant, as well as PW1 the last person who saw Nyanzala alive as stated earlier. Also, PW5 conducted examination of said human remains which was identified by PW1 and PW4 and his report exhibit PI was admitted in evidence without objection. It was his conclusion that a scientific proof under the circumstances was of no relevance. We agree with the submission by Mr. Nchanila on this aspect based on the oral confession of the appellant showing that he took PW1, PW2, PW3, PW4 to the pit near his house and showed them where he had buried his sister. As we discussed in ground one, the oral confession, testimonies of PW1, PW2, PW3, PW4 are corroborated by exhibits P3 and P4 leaving no doubt that no other person could have all the details 17 unless he committed the murder of the deceased. Further, we find that the remains found in the pit were those of Nyanzala Mwenelwa and there was no uncertainty to necessitate scientific proof as contended by the learned counsel. We say so because, as rightly held by the trial court, despite the fact that there was no scientific proof, the evidence coming from the appellant led to the discovery of the deceased in a pit which turned out to be true. According to PW6, at pages 86 and 87 of the record of appeal, the appellant is said to have confessed to him at the crime scene that: "...he buried the body o f the deceased after murdering her he also showed the place in the bush where he killed her. At the pit I saw a bone because it was undug a bit." Such a confession made by an accused person under police restraint leading to the discovery of a fact relevant to a case was admissible under section 31 of the Evidence Act. Thus, in the instant appeal, we hold that, the oral confession by the appellant to PW6 led to the discovery of the remains of a human being who was later identified as Nyanzala Mwenelwa, his sister and also, exhibits P3 and P4 corroborated the fact that the appellant did commit the murder. Ground four also fails. 18 Ground five is whether the prosecution proved the charge to the hilt. Mr. Rutahindurwa's contention was that, since the appellant was at the police station when they dug out the said remains, then a scientific analysis and its finding was needed to prove that the remains were of the deceased. Nyanzala. He urged the Court to consider their submissions, acquit the appellant and set the death sentence aside. A short reply by Mr. Nchanila was that the oral confession made by the appellant in the presence of reliable and credible witnesses, the circumstantial evidence and exhibits P3 and P4 taken together, proved the charge against the appellant beyond reasonable doubt. He prayed to the Court to dismiss the appeal. In rejoinder, Mr. Rutahindurwa argued that it was necessary to have scientific evidence to prove if the remains were of Nyanzala because PW4 had travelled to Geita and PW1 was the only witness who saw the deceased dressed in a normal dress worn by women. He brought up the issue that PW5 stated that death of the human remains found could have occurred more than 10 days and his examination was not based on scientific proof. He reiterated his prayer that the appeal be allowed. 19 We are of the opinion that discussing this ground will be superfluous in view of the determination in grounds one, two, three and four of appeal that the case for the prosecution was proved to the required standard. We entertain no doubt that the evidence on record proved the charge of murder to the hilt. Thus, we dismiss the appeal. DATED at MWANZA this 19th day of July, 2024. L. J. S. MWANDAMBO JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL Judgment delivered this 19th day of July, 2024 in the presence of the Appellant in person vide video conference from Butimba prison and Ms. Brenda Mayala, learned State Attorney for the Respondent/Republic,