CRIM APP NO 618 OF 2022 FRANCIS FANUEL KITILYA VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI (CORAM: MWANDAMBO, 3.A., KIHWELO, 3.A. And MGEYEKWA. 3.A,^ CRIMINAL APPEAL NO. 618 OF 2022 FRANCIS FANUEL KITILYA ..... ............................................... APPELLANT VERSUS THE REPUBLIC....................................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Moshi) (Simfukwe, J.) dated the 24th day of June, 2022 in Criminal Sessions Case No. 10 of 2021 JUDGMENT OF THE COURT 11th & 18th March, 2025 KIHWELO, 3.A.: The appellant, Francis Fanuel Kitilya is currently in prison, upon being found guilty and convicted for murder by the High Court of Tanzania at Moshi in Criminal Sessions Case No. 10 of 2021. He was then sentenced to suffer death by hanging. In his quest for justice and i seeking to overturn the decision of the High Court he has preferred this appeal. According to the information that was laid at his door step in the High Court (the trial court), the appellant was formally arraigned for murder contrary to sections 196 and 197 of the Penal Code, Cap 16. The particulars on the information alleged that, on 15th September, 2019, the appellant murdered one Juma Issa (the deceased). It was common ground that the deceased died violently. According to the report of the autopsy which was tendered in court during the trial and undisputedly admitted in evidence as exhibit PI, the death resulted from '"'big cut wound on face and head, which caused bleeding leading to death'. He denied the charges following which the prosecution featured six witnesses and one exhibit, Police Form No. 3 (PF3), which was tendered and marked exhibit PI. The question at the trial was therefore, whether the appellant was responsible for the death of the deceased. Briefly, the prosecution case started with the testimony of Hassan Hussein Balozi (PW1), a peasant and pastoralists resident of Kileo Village, Mwanga District. According to his testimony, on 14th September, 2019 at about 10:00 hrs on their way back from Kapoli farm in the company of his relative Ramadhani they came into encounter with the deceased who was accompanied with the appellant. They greeted each other and parted ways. Later that evening, news broke out at the village that the deceased did not come back home something which was unusual, as a result of which a manhunt was launched but quite unfortunate, up until 1:00 hrs it proved futile hence, the search team called of the exercise on that night. In his further testimony, the following morning at about 8:00 hrs an alarm was raised from the deceased's farm and PW1 hurriedly rushed to the farm where he found a crowd gathered around the water well and later the deceased's body was recovered from the well, prompting a thorough investigation to determine the cause and manner of death. According to him, the deceased's body had two big wounds, one on the head and the other one on the nose, and it would appear that the two wounds were inflicted by a sharp object. He further testified that, the body of the deceased was examined by a medical doctor who came with the police and thereafter the body was taken to the deceased's homestead for burial arrangements. Ransul Juma Issa (PW2), a biological son of the deceased who was living at Njiapanda area, his evidence was to the effect that, on 14th September, 2019 at about 20:00 hrs. he received a disturbing phone call from his relative one Ibrahim Juma that the deceased did not come back home since he left in the morning with the appellant, which prompted PW2 to rush to the deceased's homestead. He joined the manhunt which went up to 1:00 hrs when they called it off. It was PW2's further testimony that the following day one of their uncles Hussein Issa Chakuigwa left very early in the morning in further search for the deceased and while at the deceased's farm he came across one of the deceased's shoes near the well and decided to inform people back home following which they gathered at the scene and discovered the lifeless body of the deceased in the well. Subsequently, information was relayed to the police at Mwanga Police Station who responded promptly and the body of the deceased was recovered. PW2 witnessed two wounds from the deceased's body, one on the head and the other one on the nose. According to PW2, the appellant did not attend the deceased's funeral despite the fact that he was duly informed by Ibrahim Juma through phone call. ASP Asia Matauka (PW3), at the time of the incident was the Officer Commanding Criminal Investigation Department (OC-CID) for Mwanga District who received the news about the mysterious death of the deceased and put together a team of police officers who went with her to the crime scene and one of them was police No. G. 1865 D/CPL Emmanuel (PW6). On their way, they also took a medical doctor from Kileo Health Center for autopsy purposes. PW3 went on to testify that, on arrival at the crime scene she ordered the deceased's body to be recovered from the well. After recovering the body from the well, relatives who were present at the scene identified the body and Dr. Daudi Kitilya conducted autopsy and filled the postmortem examination report which was later tendered by PW6 and admitted in evidence as exhibit PI. According to PW3 there was mounting pressure from the villagers for investigation as to the cause of death. PW3 further testified that, the results of their investigation revealed that the appellant was their person of interest and through cyber tracking they were able to trace him at Same Hills and PW6 in the company of other police officers arrested him after a while. There was further prosecution testimony from Bitizari Jumaa (PW4) the prosecution's star witness who testified in minute detail the events of that fateful day. In her testimony, that morning the deceased left home about 11:00 hrs and informed her that if the appellant comes she should inform him to go to the farm where the deceased was going. Shortly thereafter, one Babu Hussein arrived and inquired the 5 whereabouts of the deceased and upon being informed of his whereabouts he made a phone call and the deceased came back. After a short while, and while the duo were engaged in conversation, the appellant and then one Babu Omary Makono came and joined the conversations. Later, in due course, Babu Hussein and Babu Omary Makono left while the appellant and the deceased remained. After some time, around 12:00 noon the deceased left to the farm and then the appellant also left proceeding in the same direction with the deceased. According to PW4, at about 14:00 hrs the appellant came back and hurriedly and asked to be given his jacket and was drenched in sweat and looked terrified. He told PW4 that he was leaving to Tanga and asked her to accompany him to which PW4 declined. He took with him his bag and left on foot something which was unusual as he always used to leave by a motorcycle. When later PW4 tried to reach the appellant through his mobile phone asking what befell the deceased, the appellant was not forthcoming and hung up and after that he was not reachable anymore. Fatuma Mohamed Mmbaga (PW5) a resident at Kileo Village nearby the deceased homestead testified to have seen the appellant and the deceased on their way to the farm at about 12:00 noon and later at about 14:00 hrs PW5 saw the appellant alone coming back from the farm. In her further testimony, the following day the deceased was found dead in the well at his farm. Finally, there was more prosecution evidence from, PW6 who testified how he was involved from the very beginning when PW3 summoned them at Mwanga Police Station to what took place at the crime scene including recovering the body of the deceased from the well, witnessing how the doctor conducted the autopsy and filled exhibit PI and later, handing over of the deceased's body to the family for burial. PW6 further explained in minute detail how the investigation was conducted which led to the arrest of the appellant at his home village in Gonja. Consequently, the trial court found that the appellant had a case to answer. He gave a sworn evidence and courageously denied committing the offence. In his defence, he maintained his innocence and blamed the prosecution for fabricating a case against him for reasons best known to themselves. He further called another witness who supported the appellant's defence of alibi but they offered a different account as to the name of the person who was being buried at the village on the said day. At the conclusion of the case for the prosecution and the defence, the learned trial Judge summed-up the case to the three assessors who sat with him and the assessors returned a unanimous verdict of not guilty on account that, there was no eye witness who saw the appellant killing the deceased. Dissenting with the view of the assessors, the learned trial Judge found the appellant guilty of murder and sentenced him to suffer death by hanging as hinted earlier on. Undeterred, the appellant preferred this appeal which was initially predicated on self-crafted five grounds in a memorandum of appeal lodged on 15th February, 2023. Later, on 6th March, 2025, the appellant's counsel, Mr. Elia Johnson Kiwia, in terms of rule 73 (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules) filed a three-grounds supplementary memorandum of appeal in substitution of the earlier filed memorandum. The three grounds of grievance may be crystalized as follows; One, the trial Judge erred to convict the appellant relying on exhibit PI which was irregularly admitted in evidence. Two, the trial Judge erred to convict the appellant relying on the evidence which was contradictory, weak and inconsistent; and three, the trial Judge erred to convict the appellant without evaluating properly the evidence on record. We heard this appeal on 11th March 2025 and the appellant was represented by Mr. Elia Johnson Kiwia learned counsel. On the other hand, Messrs. Issack Mangunu, Peter Utafu, Kambarage Samsoni and Ms. Edith Msenga learned State Attorneys, represented the respondent Republic and they bravely resisted the appeal. Ahead of his submission, Mr Kiwia predicated his arguments by informing us in advance that, he was going to argue all the three grounds of appeal conjointly. We understood Mr. Kiwia that, according to him the common thread in the three grounds of appeal is that the case for the prosecution was not proved to the hilt. In his view, the appellant was convicted on the basis of circumstantial evidence and mainly the principle of the last person to be seen with the deceased to which he had an opposing view. Elaborating, the learned counsel contended that, the prosecution's witnesses was laden with contradictions and inconsistencies in their respective testimonies. In particular, he cited the testimony of PW4 who testified that when the appellant came back from the farm he was not normal as he appeared terrified. In his submission, the testimony of PW4 was in contradiction with that of PW5 who said that when the appellant was returning from the farm he appeared just normal. 9 Pointing further inconsistencies and contradictions in the prosecution evidence, the learned counsel argued that, whereas PW2 at page 33 of the record of appeal testified that the deceased had cut wounds with a heavy blunt object, the rest of the prosecution witnesses said that the deceased was cut in the head with a sharp object. In his view these contradictions dented the prosecution evidence. In further faulting the trial court, Mr. Kiwia submitted that the appellant did not escape from the crime scene as alleged by the prosecution rather, he was at his home village in Gonja where he was arrested by the police and that his conduct was not consistent with conduct of a fugitive. In his opinion, since the prosecution did not call a cybercrime expert to prove that the appellant switched off his mobile phone and changed sim cards before he was tracked at Gonja as alleged, he invited us to draw an adverse inference. Mr. Kiwia further contested the appellant's conviction by arguing that PW4 the prosecution's star witness testified at page 44 of the record of appeal to the effect that, on the fateful day one Babu Hussein and Babu Omary Makono came to the deceased's homestead and the duo along with the appellant and the deceased spent sometimes, discussing something before Babu Hussein and Babu Omary Makono left 10 leaving behind the appellant and the deceased but little is known as to what was the conversations all about. Mr. Kiwia was of the firm view that, under those circumstances the cause of death of the deceased is not known as there are various theories and possibilities on how the deceased could have died including accidentally falling in the well or being murdered by Babu Hussein and Babu Omary Makono. Reliance was placed in the case of Tumaini Frank Abraham v. Republic (Criminal Appeal No. 40 of 2020) [2023] TZCA 17467 (1 August 2023) TANZLII for the proposition that an improbable evidence should not be believed. He further referred us to the case of Mariki Peter Ulomi @ Mapanki v. Republic (Criminal Appeal No. 393 of 2019) TZCA 17591 (1 September 2023) TANZLII. In all, he urged the Court to allow the appeal. Replying for the respondent, Mr. Peter Utafu, learned State Attorney, hotly contested the appeal as alluded before. In response to the first ground of appeal, he contended, at the forefront, that PW6 was competent to produce exhibit PI and, as shown at page 53 of the record of appeal, PW6 laid the foundation before exhibit PI was cleared for admission. He went on to argue that the appellant waived his right to cross examine a medical witness as reflected at page 51 of the record of li appeal and in terms of section 291 (3) of the Criminal Procedure Act, Cap 20 (the CPA) the appellant cannot be heard to complain that PW6 was not competent to tender exhibit PI simply because the medical witness was not summoned or made available for cross-examination. Accordingly, he moved us to dismiss this ground. In a brief rejoinder, Mr. Kiwia contended that the prosecution raised a crippled excuse for not calling the medical witness which was essentially merely for the sake of saving time. We have carefully examined the evidence on record and considered the competing submissions of the parties in the light of this ground of appeal and we find considerable merit in the submission by the learned State Attorney. Indeed, the record of proceedings bears out that the appellant waived his right to cross-examine the medical witness and this is conspicuously clear at page 51 of the record of appeal. For clarity, we wish to let the record of appeal at page 51 speak for itself. It reads as follows: " Mr. Kassim Nassir- State Attorney The matter is coming for further hearing. We intended to call two witnesses, however our witness Daudi KitHya who was summoned since 12 2()h May 2022 is not available. I pray to produce a copy o f the summons which shows that the said witness was summoned, to form part o f these proceedings for the sake o f saving time, we pray to tender a postmortem examination report through an investigator o f the case one G. 1865 D/CPL Em m anuelif the defence will waive their right to cross-examine the doctor. That is all. Sgd: S.H. Simfukwe Judge 8/ 6/2022 Mr. Rachel Mboya- Defence Counsel We have no objection. COURT: Prayer granted. Sgd: S.H. Simfukwe Judge 8/ 6/2022" The excerpt above conspicuously depicts that the appellant waived their right to cross-examine the medical witness in terms of subsection (3) of section 291 of the CPA which provides that: "Where the evidence is received by the court, the court may, if it thinks fit, and shall, if so 13 requested by the accused person or his advocate, summon and examine or make available for cross-examination, the person who made the report; and the court shall inform the accused person o f his right to require the person who made the report to be summoned in accordance with the provisions o f this subsection." Furthermore, subsection (4) of section 291 provides that: "Notwithstanding the provisions o f subsection (3), the court may dispense with the requirement o f this subsection where it is satisfied that the person who made the report is dead or that his attendance cannot be procured without delay or expense." In the instant case, before us the learned State Attorney on 8th June, 2022 when the matter came up for further hearing, he informed the trial court that they intended to summon the medical witness who prepared the report but quite unfortunately the witness was not reachable despite the fact that summons was duly issued upon him on 26th May 2022. The learned State Attorney prayed to tender exhibit PI through PW6 an investigator who witnessed the medical doctor conducting an autopsy of the deceased's body and ultimately filling exhibit PI. On his part, the appellant did not object and consequently 14 the trial court in terms of subsection (4) of section 291 of the CPA granted leave and PW6 tendered exhibit PI. Under those circumstances, it defies logic and common sense for Mr. Kiwia to criticize the trial court at this stage for something which the appellant waived their right under subsection (3) of section 291 of the CPA. PW6 was involved in the recovery of the body from the well and witnessed the autopsy exercise and filling of the postmortem examination report and further investigated the entire case and therefore, in our view, under the circumstances he was a competent person to tender exhibit PI. In the premises, we hold that ground one has no merit. In response to the second ground of appeal Mr. Utafu contended that, it is not true that the prosecution case was marred by weak, inconsistent and contradictory evidence and if at all, it was trifling. In his view, the prosecution proved its case to the hilt and that in the case before us the prosecution relied on circumstantial evidence which is acceptable in law as long as the circumstances irresistibly point to none other than the accused's guilty. Reliance was placed on the case of Ally Ramadhani v. Republic (Criminal Appeal No. 57 of 2020) [2024] TZCA 962 (3 October 2024) to fortify his proposition. 15 According to the learned State Attorney in the instant case, there is only one hypothesis that the appellant is the one who murdered the deceased. Elaborating, he contended that, PW1 testified that he saw the appellant and the deceased on the fateful day and they were heading towards the deceased's farm. PW4 on her part testified how the appellant and the deceased met with one Babu Omary and Babu Hussein at the deceased's homestead and when Babu Omary and Babu Hussein left the appellant and the deceased left at different intervals but heading the same direction and later the appellant came back in a hurry and seemed to be horrified and unsettled. He then, left unceremoniously which was unusual for him. Mr. Utafu further described how PW5 saw the appellant passing by his house while they were going towards the deceased's farm and later on PW5 saw the appellant coming back. He was thus of the view that, the testimony of these witnesses is consistent with the appellant's guilty as the last person who was seen with the deceased and bearing in mind that the deceased's body was found where the appellant was seen heading to with the appellant when he was last seen alive. He paid homage to the case of Mariki Peter Ulomi @ Mapanki v Republic (supra) for the proposition that, if a person was the last one to be seen with the deceased in the absence of explanation to the contrary he will be presumed to be the killer. Mr. Utafu went on submitting that the appellant's defence did not shake the prosecution's case which was proved beyond reasonable doubt as required by section 3 (2) (a) of the Evidence Act, Cap 6 (the Evidence Act). Illustrating, he argued that, while the appellant said he was attending funeral of his neighbour one Omary Kagosi, DW2 said that the appellant was attending a funeral of one Musa Kagosi. He distinguished all the cases cited by the appellant in that the circumstances of the case before us are different from the circumstances in those cases cited by the appellant. He stressed that, this ground too has no merit. We have weighed anxiously the learned counsel rival submissions on this issue and we are in agreements with the concurrent submission by the learned trained minds that, the evidence presented by the prosecution was wholly circumstantial as no one saw the appellant killing the deceased. Nevertheless, the trial Judge was satisfied that, on the strength of the six prosecution's witnesses and exhibit PI, the inculpatory facts pointed to no other than reasonable hypothesis that the appellant is the one who attacked the deceased which led to his sudden death. Having so found, the trial Judge respectfully expressed his disagreement with the opinion of the three assessors, as it were, he 17 found the appellant guilty and convicted him. The real pith and marrow in this matter is whether the circumstantial evidence was sufficient to convict the appellant. Clearly, the law is perfectly settled that an accused person may be convicted on the strength of circumstantial evidence without any other type of evidence to corroborate it. As was aptly articulated by Sir Udo Udoma, the then Chief Justice of Uganda, to which often times we have subscribed as depicting the correct position of the law in this jurisdiction as well, in Republic v. Sabudin Merali & Umedali Merali, Uganda High Court Criminal Appeal No. 220 of 1963 (unreported): "...it is no derogation to say that it was so; it has been said that circumstantial evidence is very often the best evidence. It is the evidence o f surrounding circumstances which, by undersigned coincidence is capable o f proving a proposition with the accuracy o f mathematics." Likewise, in Georgina Masaia v. Republic, Criminal Appeal No. 128 of 2004 (unreported), we relied on Samson Daniel v. Republic (1934) 1 EACA 46 to state that circumstantial evidence may be more conclusive than the evidence of an eye witness. Similarly, in Simon Musoke v. Republic [1958] 1 EA 715, the Court of Appeal for East Africa, quoting from the third headnote, held: 18 "In a case depending exclusively upon circumstantial evidence, the court must, before deciding upon a conviction, find that the inculpatory facts are incompatible with the innocence o f the accused, and incapable o f explanation upon any other reasonable hypothesis than that o f guilty." Ahead of determining this ground of appeal, we think, it is necessary to state that this being the first appeal, we are mandated, in terms of rule 36 (1) (a) of the Rules, to re-appraise the entire evidence on record in an objective manner and come up with our own findings of fact. There is, in this regard, a considerable body of case law on this. See, for instance, the case of D.R. Pandya v. R [1957] E.A. 336 and a series of decisions that followed. Coming back to the case before us the prosecution case was built upon the evidence of six witnesses, PW1 who saw the appellant with the deceased heading to the farm where the lifeless body of the deceased was later found the next day. PW2 the deceased's son who was informed about the mysterious missing of the deceased and later went 19 back home where upon a manhunt they recovered the body of the deceased the following day. PW2 testified to have known the appellant as the traditional doctor who was familiar to the entire family. He also testified as to the condition of the body upon recovery from the well whose testimony was consistent with exhibit PI. PW3 who was the OC- CID of Mwanga District at the time of the incident testified how he was informed about the incident but also how they tracked the appellant through cybercrime unit and they were able to apprehend him. PW4 was the prosecution's star witness who described in minute detail what transpired before the appellant and the deceased left and how the appellant strangely behaved when he came back from the farm and his unceremonious departure which was not consistent with his normal past routine. On the other hand, PW5 testified to have seen the appellant and the deceased going towards the direction of the deceased's farm and later the appellant returned alone while PW6 testified how he investigated the matter and arrested the appellant hiding at Gonja. 20 Looking critically the testimony of PW4, PW5 and PW1 there is no any scintilla of doubt that the appellant is the person who went with the deceased to where the lifeless body of the deceased was found the following morning. Looking further the testimony of PW1, PW2 and PW6 together with exhibit PI, clearly the deceased was cut with a sharp object on his head and face and therefore, his death was not accidental or natural but rather, he was murdered. Furthermore, considering the testimony of PW2, PW3, PW4 and PW6 the appellant's conduct after the murder incident is not consistent with innocence. In the instant case, in the absence of an explanation by the appellant to exculpate himself from the death of the deceased, like the court below, we are also satisfied that the appellant was the one who killed the deceased. We are fortified in this view by the principle stated in the case of Mathayo Mwalimu and Another v. Republic, Criminal Appeal No. 147 of 2008 (unreported) in which we held that: "In our considered opinion, if an accused person is alleged to have been the last person to be seen with the deceased, in the absence o f a plausible explanation to explain away the 21 circumstances leading to the death, he or she will be presumed to be the killer." Mr. Kiwia invited us to draw an adverse inference for the prosecution's failure to call the cybercrime expert to testify or even Babu Omary and Babu Hussein in that matter. In our view, we think, with respect, and as rightly argued by Mr. Utafu, there is no particular number of witnesses required to prove a fact in terms of section 143 of the Evidence Act. We are decidedly of the view that, evidence is weighed and not counted. The court can act on the evidence of a single witness if that witness can be believed given all the surrounding circumstances. The truth is not discovered by a majority vote. As regards the alleged contradictions and inconsistences on the wounds according to PW2 who testified that they were inflicted by a heavy blunt object as opposed to other witnesses who testified that they were inflicted by a sharp object consistent with exhibit PI. Furthermore, the alleged contradictions on who made phone calls to the appellant and whether they could reach the appellant while the mobile phone was alleged to have been switched off and also the alleged contradiction between PW4 and PW5 as to the state of the appellant when he came back whether he was normal as testified by PW5 or was terrified as 22 testified by PW4. In our view, we did not see those inconsistencies and contradictions, and if at all, they are trifling. The reason is not far­ fetched. Both witnesses testified to have seen the body with two wounds one in the head and another one on the nose. While PW5 saw the appellant passing by, PW4 was at home where the appellant went to pick his belongings and she was in close proximity with him and could easily observe his abnormal behavior compared to PW5 who merely saw the appellant leaving. We are alive to the fact that due to frailty of human memory, a witness is not expected to be accurate in minute details when retelling his story and more in particular if the matter is on details. See, for instance, Evarist Kachembeho and Others v. Republic [1978] LRT 70 in which the High Court observed, and rightly so in our mind that; "Human recollection is not infallible. A witness is not expected to be right in minute details when retelling his story." We made corresponding observations in the case of John Gilikola v. Republic (Criminal Appeal No. 31 of 1999) [2004] TZCA 13 (14 July 2004). In our view, the alleged discrepancies are very minor and do not 23 go to the root of the matter and therefore they can be glossed over. In the premises, we find that this ground too has not merit. Mr. Mangunu argued the third ground of appeal whose criticism was that the trial court did not properly evaluate the evidence on record. The learned State Attorney had an opposing view. He contended that, the learned Judge adequately and properly evaluated the evidence on record and finally, she came to the conclusions that the prosecution proved its case to the required standard. We have given due regard to the rival submissions by the contending arguments and in our view, and having reviewed the testimonies of the six prosecution witnesses in terms of rule 36 (1) (a) of the Rules, as well as the record of appeal, we hold that the complaint is untenable. Record of proceedings are conspicuously clear that the trial Judge adequately analyzed the evidence of both the prosecution and the defence and came to the conclusions that the prosecution proved its case to the hilt. This is evidently clear from page 121 to page 127 of the record of appeal. We have further considered Mr. Kiwia's complaint that the respondent relied more on the appellant's weaknesses than the strength of the prosecution case but in our view, we think this argument is not 24 tenable. The appellant's conviction was mainly based on the strength of the prosecution evidence and this was clearly indicated by the trial Judge at page 127 of the record of appeal. That said, we find this ground of complaint too unmerited. In the upshot, we find that the appeal is without any semblance of merit. We dismiss it. DATED at MOSHI this 18th day of March, 2025. L. J. S. MWANDAMBO JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL Judgment delivered this 18th day of March, 2025 in the presence of Mr. Elia Johnson Kiwia, learned counsel for the Appellant and Ms. Bertina Tarimo, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. . \ ... . S. P. MWAISEJE ' Aq. DEPUTY REGISTRAR COURT OF APPEAL 25