CRIMINAL APEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: KOROSSO, J.A., KAIRO. J.A.. And KHAMIS. J.A.l CRIMINAL APPEAL NO. 19 OF 2021 KANAEL S/O EMMANUEL @ PALLANGYO................................. APPELLANT VERSUS THE REPUBLIC.............................................. .....................RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Arusha) (Gwae, J.) dated the 6th day of March, 2020 in Criminal Sessions Case No. 50 of 2018 JUDGMENT OF THE COURT 3rd & 18th July, 2024 KHAMIS, J.A.: This is a first appeal from the judgment of the High Court of Tanzania, Arusha (Gwae, J) dated 6th March, 2020 in which the appellant was charged with two counts of murder contrary to section 196 of the Penal Code, Cap 16 R.E 2002 (now R.E 2023). The particulars of the offence in the first count were that, on 14th August, 2015 at Kilinga Village, Arumeru District, within Arusha Region, the appellant murdered Emmanuel Elia Pallangyo (the first deceased). On the second count, it was alleged that on the same date, place and location, the appellant murdered Ndeshukurwa w/o Emmanuel Pallangyo (the second deceased). When the information was read over to him, the appellant pleaded not guilty and the case proceeded to trial. At the trial, the prosecution called seven (7) witnesses and tendered four exhibits. The appellant gave a sworn defence and did not produce any exhibit. The two deceased are biological parents of the appellant. The two key witnesses are minors who promised to tell the truth and not lies. Both are related to the appellant and the deceased persons. PW1 Junior Elias, is a grandson of the deceased and nephew to the appellant. At the time of testimony, he was 12 years old. According to him, the incident happened during morning hours before he went to school. He remembered that, after morning greetings, the appellant asked him and PW2 Elisha Emmanuel if they were going to school. They responded positively. Soon thereafter, the appellant who lived in a separate house within the homestead, entered his parents' house and assaulted them one after the other with a sharpened bush knife. During the incident, he was heard saying aloud: "/eo ^//a/'literally meaning, ''today is the real day" Immediately after the assault, the appellant's brother, Elirehema Emmanuel Mwenda (PW5) showed up and entered the house of the deceased where he found two bodies lying on the floor. He reported the incident to the neighbours. PW2 Elisha Emmanuel was the youngest child of the deceased and a younger brother to the appellant. He was 13 years old at the time of his testimony. His evidence matched with that of PW1 on what transpired before the incident. He said the appellant had a bush knife when entering the deceased's house. Immediately after entering the house, the appellant inflicted serious injuries on his parents who fell down one after the other. Like PW1, PW2 heard the second deceased screaming for help "uwii, uwii!" until she died. According to him, after the killings, the appellant returned to his timber house within the homestead. He also testified that, Elirehema (PW5) was the first person to arrive at the scene after the incident. PW5, a biological son of the deceased and the appellant's younger brother, said the deceased were blessed with nine children including the appellant. He lived in the same homestead with the deceased and the appellant. On the date of the incident, he woke up at 6.45 am and went to his parents' house. Upon pushing the entrance door, he saw a pool of blood and the two dead bodies of his parents. The second deceased was lying at the door and the first deceased was on the bed. Both of them were cut on the heads. Three children lived with the deceased at the compound, namely: One Witness, PW1 and PW2. Immediately before his visit to the deceased' house that morning, PW5 saw the appellant at his timber house boasting himself: "nimemaliza tayari, bado wawili, watatu"w\\\ch literally translates: "lam done, but two or three more remains" Having learnt of the incident, PW5 hurriedly reported the incident to his uncle, Mathayo Elia Palangayo. He also questioned the three children on the incident who narrated how the appellant killed the deceased. An alarm was raised which attracted villagers to the scene. The villagers surrounded the appellant's house and prevented him from escape. PW4 Elifasi Sunguroi was the chairman of Kilinga Village. Upon being informed of the incident by the hamlet chairman, Elifasi Palangyo, he went to the scene and saw two dead bodies. He recognised the deceased as Emmanuel Palangyo and his wife. Other villagers had converged at the scene including the hamlet chairman. The witness had to intervene and stop the villagers who had started to assault the appellant who remained in his timber house. Until that time he was armed with a bush knife. To ensure peace and order, the witness informed the police who arrived in time and ordered the appellant to surrender his bush knife. PW3 D 3876 S/SGT George was a police detective assigned to interrogate the appellant. His testimony was to the effect that upon being educated on his rights and warned that the statement could be used as evidence against him, the appellant voluntarily recorded the statement thereby confessing to kill his parents. The statement was received in evidence as exhibit "PEI". PW6 David Mwita, a magistrate at Mwembechai Primary Court, testified that, around 15.00 hours on the date of the incident, the appellant was presented in his chamber for purposes of recording a confession statement. Upon releasing the policeman who escorted him to the court premises and remaining with the appellant, he followed the letters of the Chief Justice Guidelines to the Justices of the Peace on recording the confession statement. The statement was voluntarily recorded by the appellant who confessed to kill his parents. Upon recording, the statement was read over to the appellant who appended his signature on correctness of its contents. The statement was also signed by the witness and received in evidence as exhibit PE2. PW7 F 2467 D/CPL Henry, was a police officer at Usariver Police Station who investigated the case. He was assigned to collect evidence including a post mortem report. Unfortunately, the medical doctor who conducted the post mortem examination and prepared the post mortem report, Dr. Mkamba, died after the post mortem. As a custodian, PW7 produced the objected post mortem report marked as exhibit PE4 and the letter accompanying the post mortem report addressed to the RCO was admitted as exhibit PE3. When put to his defence, the appellant testified under oath stating that on the date of the incident he was not at the scene but had gone to his farm very early in the morning. He was informed of his parents' death by Mr. Kitolya and Mama Philipo. He had no misunderstandings whatsoever with his late parents. On further examination, he said that on the fateful morning, he did not pay homage to his parents' house. The appellant further stated that, he was arrested on the date of incident while at his residence in connection with the death of his parents. Upon arrival at the police station, he was seriously beaten and forced to record a statement. He was also threatened to record a statement before the justice of the peace who did not bother to inform him of his rights. He was not asked any question by the justice of peace who kept writing matters unknown to him. The appellant said his house was located about one kilometre away from the deceased's homestead and that, his two-bedroom house was built up of timber. On cross examination, he said it took about ten minutes to walk from his house to the deceased's homestead. On further cross examination, the appellant said he did not have any grudges with his deceased parents. In its judgment, the trial court found the evidence of PW1 and PW2 to be credible and sufficiently proved that, it was the appellant who entered his parents' house on the date of the incident armed with a sharpened bush knife which he used to assault the deceased. The evidence of PW1 and PW2 was corroborated with other pieces of evidence on record such as the evidence of PW5. The trial court was also satisfied that the appellant's identification was watertight because the incident happened during day time, and that, PW1 and PW2 were family members who knew him unmistakably. In its reasoned judgment, the trial court found the appellant's defence to be a mere denial and his alibi unfounded. Accordingly, the trial Judge was upbeat that the appellant's defence did not dislodge the well-presented prosecution case. Consequently, the appellant was convicted on both counts and sentenced to a mandatory death penalty. Aggrieved by the conviction and sentence, the appellant landed in this Court armed with a memorandum of appeal containing nine (9) grounds. Then, he filed two more additional grounds on 8th December, 2023. On 1st December, 2023, he filed five more additional grounds. When the appeal came up for hearing, Mr. Stephano James, learned advocate, appeared for the appellant. On the other hand, Ms. Janeth Sekule, learned Senior State Attorney, teamed up with Mses. Penina Ngotea and Witness Mhosole, learned State Attorneys, to represent the respondent Republic. At the outset, Mr. James rose to inform the Court that, the appellant had abandoned the supplementary memorandum of appeal filed on 1st December, 2023, retained the original memorandum of appeal (dated 29th June, 2021) and the additional grounds of appeal lodged on 8th December, 2023. The learned counsel grouped the remaining grounds of appeal in different clusters. For reasons to be disclosed soon, we find no need to reproduce those grounds except for the two grounds in the supplementary memorandum of appeal lodged on 8th December, 2023 which reads: "1. That the trial Court erred in iaw and in fact in not finding that the appellant was at the time o f commission o f the alleged unlawful act insane and order his detention in a medical hospital for medical examination. 8 2. That, the trialcourt's summing up to the assessors is defective as the assessors were not directed to the appellant's defence o fprovocation." On the first ground of appeal, Mr. James asserted that, there are pieces of evidence on the face of the record suggesting that, the appellant's mental health was impaired at the time of the commission of the offence. He faulted the trial Court for failure to observe them and direct parties on a proper approach in handling cases involving accused suspected to be of mental illness. In support of his contention, the learned counsel took us through pages 69, 71, 72 and 77 of the record and argued that, had the trial court directed its mind on the pieces of evidence therein shown, it would have found a dire need to comply with the provisions of section 220 (1) of the Criminal Procedure Act, Cap 20, R.E 2023. He buttressed his submissions with our decision in Francis S/o Siza Rwambo v Republic, Criminal Appeal No. 17 of 2019 [2021] TZCA 90 (9 April 2021). In support of the second ground, Mr. James drew our attention to page 102 and 103 of the records which contains the appellant's cautioned statement (exhibit PEI) where he was recorded saying that: "...mimi na baba yangu pamoja na familia nzima tuligombana baada ya mimi kukashifiwa na familia nzima kuwa siwezi kupata msaada toka kwao na kwamba nitafute eneo langu nihame hapo kwao pamoja na kunitukana na kunizomea maneno hayo ya/iendefea hadi usiku kucha na tarehe 14/8/2015 asubuhi saa 07.30 hours ambapo watu walianza kunirushia mawe nikiwa nyumbani kwangu na wakanizingira na marungu. Baadae nillingia kwenye nyumba ya baba yangu na mama yangu nikamkuta baba na mama ndipo nikamkata baba na panga kichwani, shingoni, na kisogoni. Na nilimkata na panga mara tatu na mama nilimkata na panga mara mbi/i. NHipoona wameshaanza na kuiaia chihi ndipo nikatoka nje nikiwa nimeshika panga mkononi ndipo nikarudi na kukaa nyumbani kwangu hadi poiisi waiipofika kwangu na wakanichukua na kunifunga pingu na kunipandisha kwenye gari la po/isi na kufikishwa kituo cha poiisi Usariver..." The learned counsel contended that, despite advancing provocation as a defence as per the excerpt above, the trial Judge did not explain to the assessors the aspect of provocation in law. He also faulted the summing up notes for lack of the trial Judge's explanation on the defence of alibi that was raised by the appellant. Further, the summing up notes were faulted for an omission to explain the aspect of motive for committing the offence of murder and value of the confession statements in law. He argued that, the 10 brief mentioning of the confessional statements at page 92 of the record was sketchy and insufficient. Mr. James submitted that, the defects noted in the summing up notes rendered the whole trial defective and maintained that, as a consequence, the appellant should be acquitted and released from prison. He added that, in view of the changes in law which removed assessors from sitting over capital offences, a remedy to the unfair trial is to release the appellant. As regards the first ground, Ms. Sekule strongly differed with the appellant's counsel submissions and contended that the evidence placed before the trial court did not suggest any elements of insanity. She submitted that, the contention is misplaced on the basis that, the appellant was fully represented throughout the trial court's proceedings. With specific reference to the procedure for raising a defence of insanity in the trial court, she faulted the defence counsel for failure to invoke section 219 of the CPA and move the trial court to make necessary orders for examination of the appellant's state of mind. In support of her submissions, she cited Ester Jofrey Lyimo v. Republic, Criminal Appeal No. 123 of 2020 [2022] TZCA 197 (14 April 2022) where the Court reasoned that: li "Now, since the appellant had legal representation, had there been any suspicion that she was not o f sound mind, the defence could have informed the trial court that they intended at the trial to rely on the defence o f insanity. On being satisfied that the appellant might have not been o f sound mind at the time she is alleged to have committed the offence, the trial court would have stayed the proceedings and invoke the provisions o f section 220 (1) o f the CPA to order the appellant to be sent to a mental hospital for examination o f her mental status..." Responding to the second ground of appeal, Ms. Sekule readily conceded that, the summing up notes were defective. She contended that the trial Judge failed to address the distinguished assessors on the salient points of law and particularly: the defence of alibi; confession statements; and ingredients of the offence of murder. However, she submitted that, the appellant did not raise the defence of provocation and argued that, assessors could not be given the rundown on it. The learned Senior State Attorney invited the Court to quash the trial court's proceedings, conviction and set aside the sentence meted against the appellant. She submitted that, in the circumstances of the case, justice will be best served if the Court orders a retrial in terms of section 4(2) of the Appellate Jurisdiction Act, Cap 141 R.E 2019 (the AJA). 12 Having carefully considered the counsel rival submissions on the case generally and particularly on the aspect of the first and second grounds of appeal as contained in the supplementary memorandum of appeal dated 8th December, 2023, we are of the opinion that the second ground alone can sufficiently dispose of the appeal. We shall therefore start with the first ground and then pronounce ourselves on this point and thereafter, on the way forward. The appellant faulted the trial court for failure to stay proceedings and refer him to a mental institution for examination of his mental health at the time of commission of the offence. The procedure for raising the defence of insanity was summarised by this court in Francis S/o Siza Rwambo v. Republic (supra) at page 12, thus: "...Itshould be understood that the law provides two separate procedures for a defence o f Insanity. I f an accusedperson intends to raise a defence o finsanity as a bar to a trial, in that, the accused person is incapable o f standing trial, the procedure o f raising it is provided under section 216 to 218 o f the CPA. Whereas, if an accused person wishes to raise it as a defence o f insanity to a charge or information that at the time o f committing the offence he was insane, the procedure is provided under sections 219 and 220 o f the CPA..." 13 Further at page 13 of its decision in Francis S/o Siza Rwambo (supra), the Court pointed out that: "Normally, where an accusedperson intends to raise the defence o finsanity at the trial he must raise it at the time when he is called upon to plead. This is provided for under section 219 (1) o f the CPA..." When the Court was winding up on a similar issue which cropped up in Ester Jofrey Lyimo v Republic (supra), it stated that: "Therefore, since the law is dear on how to deal with the suspected unsoundness o f the mind o f the accused person, we have wondered as to why this complaint has been brought at this late stage o f the case. Even if we were to look into the circumstances o f this case, we have found that cruelty, beating and ill-treatment o f the deceased and PW1 by the appellant could not be a reason to suspect that the appellant was not o f sound mind. This complaint is therefore devoid o f merit and it is rejected." We have paid attention to the specific areas pointed out by the learned counsel for the appellant. While on cross examination at page 69 of the record, PW1 stated that: "...I used to see the said Kanaei furious while he had smoked bhang. I hate smoking bhang..." PW2 on examination at page 71 of the record, said that: 14 "...Having committed unlawful acts, the said Kanaei went to his residence, timber flat and stayed thereat He then started talking to himself..." While on cross examination at page 72 of the record, PW2 was recorded saying: "...One day and usually he used to ask me to go (buy) bhang on his behalf..." At page 77 of the record, PW5 testified on the appellant's behaviour immediately after the incident. On examination in chief, the witness stated that: "Before going to our family house at 06.45 hours, I saw Kanaei Emmanuel while at his house and boasting himself by saying that he had already finished but only two-three are to be finished "Nimemaliza tayan\ bado waw/il, watatu..." Those pieces of evidence suggest a state of intoxication under the influence of bhang or marijuana which is covered under section 14 (1) and (2) (a) and (b) of the Penal Code. Without going into the merits of that defence, we agree with Ms. Sekule that, the appellant who was fully represented in the trial court, could have drawn attention of the trial court of his intention to rely on insanity as a defence which step would have moved the trial court to act in accordance with section 220 (1) of the CPA. In the circumstances, the first ground fails. 15 Until recently, it was a mandatory requirement of the law under section 265 of the Criminal Procedure Act, Cap 20 R.E 2023 (the CPA) that all trials in the High Court were to be conducted with the aid of assessors the number of whom should be two or more as the court directs. Section 298 (1) of the CPA provides that, when the case on both sides is closed, the Judge may sum up the evidence for the prosecution and the defence and then require each of the assessors to state his opinion orally as to the case generally and as to any specific question of fact addressed to him by the Judge, and record the opinion. In Sabasaba Enosi v. Republic, Criminal Appeal No. 135 of 2015 (unreported), this Court held that, the opinion of assessors is of great value and assistance to the trial Judge if the summing up is properly conducted. In Khamis Rashid Shaaban v. DPP, Criminal Appeal No. 284 of 2013 (unreported), the Court interpreted section 278 (1) of the CPA and observed that, although the words used therein "may sum up to assessors" may appear discretionary, the practise has always been that, the Judge must sum up the evidence to the assessors on all essential elements of the offence. Commenting on the effect of omission to direct assessors on the essential elements of the offence, the Court was of the view that: 16 "Where assessors are misdirected on a vita! point, such a trial cannot be construed to be a trial with the aid o f assessors. The position would be the same where there is non-direction to the assessors on a vitalpoint" In this case, the summing up notes reflected at pages 89 - 96 of the record summarised the evidence led by both sides but did not point out the vital points of law that featured in the course of trial. These were mainly, the defence of alibi, the nature and value of the appellant's confessional statements, provocation and elements of the offence of murder. We understand that, vide the Written Laws (Miscellaneous Amendments) Act, No. 1 of 2022, it is no longer a legal requirement for trials before the High Court to be conducted with the aid of assessors. However, the impugned proceedings and decision of the High Court were conducted and made at a time when presence of assessors was mandatory. The appellant's conviction was arrived at after the assessors had given their opinion. In the circumstances, we are certain that the proceedings were vitiated. Having ascertained that position, we are apt to consider whether the appellant be released or be retried. The Court made its position on this issue 17 in Shaban Abdallah v. Republic, Criminal Appeal No. 255 of 2013 (unreported) thus: "In general a retrial will be ordered only when the original trial was illegal or defective: It will not be ordered where the conviction is set aside because o f insufficiency o f evidence or for the purpose o f enabling the prosecution to fill up gaps in its evidence at the first trial. Even where a conviction is vitiated by a mistake o f the trial court for which the prosecution is not to blame; it does not necessarily follow that a retrial shall be ordered; each case must depend on its own facts and circumstances and an order o f retrial should only be made where the interest o fjustice require." The defect on the summing up was occasioned by the trial court. We have carefully considered and reviewed the evidence on record and without going into the merits thereof, a prima facie case is likely to be achieved. The offence allegedly committed by a son to his helpless and vulnerable parents is not only capital and serious in nature but also inhuman, particularly in the manner it was done. The witnesses in the case are mainly family members and neighbours of the deceased and therefore, it will not be difficult to locate them. Others are government officials who can be conveniently located. Therefore, we are 18 of the considered view that, the ends of justice demands that an order of retrial be made. Consequently, in terms of section 4 (2) of the ADA, we hereby quash the proceedings and judgment of the trial court and set aside the conviction and the sentence meted against the appellant. The record of this appeal shall be remitted to the trial court for retrial before another Judge in accordance with the law. DATED at ARUSHA this 17th day of July, 2024. W. B. KOROSSO JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Judgment delivered on this 18th day of July, 2024 in the presence of the Mr. Stephano James, learned counsel for the appellant and Ms. Witness Mhosole, learned State Attorney for respondent/Republic, is hereby certified a true copy of the original. A. L. KALEGEYA DEPUTY REGISTRAR COURT OF APPEAL