CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT SUMBAWANGA f CO RAM: MWARI3A. 3.A.. MASHAKA, J.A. And FELESHI, 3.A.) CRIMINAL APPEAL NO. 527 OF 2022 3AMES KAPYELA........ ........ ..... .................. APPELLANT VERSUS THE REPUBLIC.................... ........... ..... ....... RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Sumbawanga) (Mwenempazi, J.V dated the 25th day of October, 2022 in Criminal Sessions Case No. 24 of 2021 3UDGMEI 10th & 20th March, 2025 MWARIJA. 3.A.: In the High Court of Tanzania at Sumbawanga, the appellant, James Kapyela was charged with two counts of murder contrary to section 196 of the Penal Code, Chapter 16 of the Revised Laws. In the first count, it was alleged that on 23/3/2019 at Vuta Street, Kizwite Ward within Sumbawanga Municipality in Rukwa Region, the appellant murdered one Nicholaus Wambagae. It was alleged further, in the second count that, on the same date and place stated in the first count, the appellant murdered one Emmanuel Juma. The appellant denied both counts and as a result, the case proceeded to a full trial at which, while the prosecution called a total of 11 witnesses, the appellant was the only witness for the defence. Having considered the evidence of the prosecution witnesses and that of the appellant as well as the final submissions of the learned counsel for both parties, the learned trial Judge found that, both counts had been proved to the hilt. He thus convicted and sentenced the appellant to suffer death by hanging. Aggrieved, the appellant has preferred this appeal. The background facts of the case may be briefly stated as follows: The appellant was until the material time a resident of Kizwite Street, within Sumbawanga Municipality. He lived in his house with his son, Michael James Kapyela, The house had a fence and within the compound, was a blue motor vehicle which was not roadworthy (the motor vehicle). On 21/3/2019, three children, Nicholaus Wambagae, Emmanuel Juma and Brighton Masumbuko Kapufi went missing from their parents' homes. Despite much efforts to trace them, their parents were unsuccessful until on the third day of the childrens' disappearance. On 23/3/2019, Maria Exavery Mwezimpya (PW2), who was doing business at the same market where the mother of one of the missing children, that is, Brighton Masumbuko Kapufi (PW6), met the said child. He informed her of the place where he had been for all the three days, disclosing that, he had left the other children at that place. On the instructions of PW2, the child (PW6) was taken to his mother, Agness Kapufi (PW1). From the information given by PW6 about the place where he had been confined together with the other two children, the parents of PW6, Agness Kapufi (PW1) and those of the other two children, Modesta Ngeresha (PW7), the mother of Emmanuel and Kipara Aswile Mwambagae (PW8), the father of Nicholaus, were led by PW6 to the appellant's house. Since the police had aiso been informed of the incident, some police officers joined those who were led by PW6 to the appellant's house. At the scene, PW6 identified the motor vehicle in the appellant's compound as the one which he was locked in together with the other two children. They were not however, found in the motor vehicle. The incident had attracted a number of people including the then street 3 chairman, Ordrick Songu Sokoni (PW9). Upon further search, the bodies of the two children were found in a nearby unfinished house. Following that discovery, angry mob set fire to the appellant's house and the motor vehicle. The appellant, who was at his work place, did not go to the scene. He reported to police station later between 13:00 hrs and 14:00 hrs, after having been advised by his friend, Rosta Emmanuel Mofuga (PW4) who also provided him with transport. He had earlier on admitted, when he was contacted by PW4 between 10:00 a.m and 11:00 a.m that he had information about the bodies and that the incident caused his house to be destroyed. Having reported to the police, he was interrogated and was later charged in court. In his evidence, PW6 stated that, on the date when he went missing from his parents' home, he was with other two children, Nicholaus Wambagae and Emmanuel Juma (the deceased children) and that, while in the company of the said children, one man got hold of their hands, took them inside his house and locked them in. Having taken them in his house, he covered the mouths of the deceased children with pieces of clothes. PW6 went on to state that, he also witnessed the man stabbing the deceased children with a knife on their backs. Later, he took him and the deceased children and locked them in the motor vehicle. Luckily, he said, in the next morning, a young person, whom he referred to as kaka (brother), opened the motor vehicle's door and advised him to run away. As shown above, after his escape from confinement, PW6 met PW2. It was PW2's evidence that, PW6 narrated to her what befell him and disclosed the place where he had been held for all that period of three days. PW2 then handed him over to one Mama Jane to take him to his mother, Agness Kapufi (PW1) who operated business at the same market. PW2's evidence was further to the effect that, after that information, the parents of PW6 and the deceased children, PW1, PW7 and PW8 went to the said house. It transpired that, the house belonged to the appellant. Because the police had received information about the incident, SP Shukrani Madulu (PW3) who was in the company of other police officers, also went to the scene. His evidence together with that of PW2, PW5, PW7, PW8 and PW9 was to the effect that, when the motor vehicle was inspected, although the deceased children were not found in it, the same had feaces and a foul urine smell. It was however, their evidence that, upon further search, the bodies of the deceased children were found in an unfinished house, close to the appellant's house. As pointed out above, the appellant was until the material time, staying with his son, Michael James Kapyela who testified as PW10. He testified that, he witnessed his father (the appellant) taking dead bodies from the motor vehicle and threw them in the nearby unfinished house. He explained that, he watched the whole incident from inside the house. In his defence, the appellant who gave evidence as DW1, distanced himself from the offence charged. He testified that, on 23/3/2019 in the morning, he left his home in safe condition and went to his work place to conduct his business of selling motor vehicle spare parts. Immediately after he had arrived at his work place, he received a call from PW4 who informed him that, some people had gathered at his house and that, following discovery of two dead bodies in an unfinished building near his house, a commotion had ensued. After sometime, PW4 went to pick him and took him to the police station where his statement was recorded. He denied the evidence given by PW10 to the effect that, he saw him throwing away the dead bodies. It was his defence that the case against him was fabricated. Having considered the prosecution and the defence evidence, the learned trial Judge was satisfied that, the case against the appellant had been proved beyond reasonable doubt. He observed that, the evidence of PW6 and PW10 proved that the deceased children, whose bodies were found in an unfinished building near the appellant's house, were first taken in the appellant's house and later locked up in the motor vehicle. On whether or not the evidence had sufficiently proved that the appellant was involved in the commission of the offence, the learned trial Judge answered that question in the affirmative. He found credibility in the evidence of PWiO that, he witnessed the appellant taking the childrens7bodies from the motor vehicle and threw them in the nearby unfinished house. He found that conduct to be inconsistent with the appellant's innocence. He concluded that, the appellant had caused the death of the deceased children by locking them in the motor vehicle which had all its doors and windows closed hence with malice aforethought. In this appeal, the appellant had earlier on 24/4/2024, filed a memorandum of appeal consisting of seven grounds. Later, on 4/3/2025 his learned counsel filed a supplementary memorandum containing five grounds. 7 At the hearing of the appeal, the appellant was represented by Mr. Baltazar Slchillma Chambi, learned counsel while the respondent Republic was represented by Mr. Calistus Kapinga, learned Senior State Attorney assisted by Mr. Joseph Mwakasege, learned State Attorney. Mr. Chambi informed the Court that, he would argue the grounds of appeal contained in his supplementary memorandum which, according to him, incorporated the grounds raised by the appellant in his memorandum of appeal. The grounds raised by the learned counsel are as follows: "i. The Honourable court erred in law to find the appellant guilty o f the offence charged, convicting and sentencing him basing on the evidence o f prosecution which [did] not prove the offence to the required standard. 2. The trial court erred in law to convict the appellant basing on dock identification o f the accused person. 3. The trial court erred in law to find the appellant guilty o f the offence charged without properly analyzing the prosecution evidence and finding its weakness: 8 4. The trial court erred in law to enter conviction [against] the appellant basing on a contradictory evidence. 5. That, the trial court erred in law to find the appellant guilty o f the offence charged and sentencing him as he did without considering the defence evidence" In the course of his submissions, the learned counsel for the appellant abandoned the fifth ground of appeal. As for the remaining grounds, he began by arguing together the first, second and third grounds. He submitted that, the case against the appellant was not proved to the required standard because, first, none of the ten witnesses saw the appellant committing the offence and secondly, the appellant's house was searched but nothing was found which could link him with the offence. With regard to the evidence of PW6, it was the learned counsel's argument that, the said witness did not identify the appellant at the scene and in his evidence, he merely referred to the assailant as "mbaba" (a man) and therefore, his dock identification of the appellant was wrongly relied upon by both courts below. He cited the case of Jero Essau v. Republic (Criminal Appeal No. 495 of 2021) 9 [2024] TZCA 1066 (7 November 2024) to bolster his argument that « such kind of evidence is highly unreliable. On the fourth ground, the learned counsel argued that, the appellant's conviction was based on the prosecution evidence which was contradictory. He referred the Court to the evidence of PW1 and PW2 and argued that, the said witnesses contradicted each other as regards the place at which PW6 went after he had escaped from the scene of crime. He submitted that, whereas PW1 said that he went to a restaurant, PW2 said that she went to take him from the house of one Mama Jane. Another contradictory evidence pointed out by the learned counsel relates to the testimony of PW6 and PW11, that whereas PW6 testified that the deceased children were stabbed with a knife on their backs, PW11 said that they were hit with heavy object. It was Mr. Chambi's submission that the pointed out contractions in the evidence of the named witnesses raise reasonable doubt on their credibility. He cited the case of Mohamed Juma Mpakama v. Republic (Criminal Appeal No. 385 of 2017) [2019] TZCA 518 (27 10 February 2019) and urged the Court to find that the case against the appellant was not proved beyond reasonable doubt. In response to the submissions of the learned counsel for the appellant, Mr. Mwakasege argued that, the grounds of appeal lack merit. On the first, second and third grounds of appeal, it was the learned State Attorney's submission that, the appellant's conviction was essentially based on the evidence of PW6 and PW10 as supported by other pieces of evidence adduced by the prosecution witnesses. He added that, although PW6 did not see the appellant killing the deceased children, his testimony strengthened the circumstantial evidence which was acted upon to found the appellant's conviction. On the application of circumstantial evidence, he cited the cases of Amani Rabi Kalinga v. Republic (Criminal Appeal No. 474 of 2019) [2022] TZCA 633 (18 October 2022) and Jacob Mayani v. Republic (Criminal Appeal No. 566 of 2016) [2020] *T7CA 1768 (27 August 2020). On the fourth ground, Mr. Mwakasege argued in reply that, the alleged contradiction between the evidence of PW1 and PW2 was inexistent because, the evidence on record shows that, PW6 was taken to a restaurant to have tea before being taken home. With regard to ii the contention that the evidence of PW6 contradicted that of PW11, the learned State Attorney argued that, the relevance of PW ll's evidence was to establish the cause of death and his evidence on that aspect was not challenged by the appellant by way of cross-examination, On that argument, the learned State Attorney submitted that, the case of Mohamed Mpakama (supra) cited by the appellant's counsel is inapplicable. After the learned State Attorney had concluded his reply submission, we probed him on the propriety or otherwise of the sentence imposed on the appellant following his conviction on both counts. Mr. Mwakasege conceded that, the sentence of death ought to have been imposed on one count only. He was quick to cite an authority on that position; the case of Aliyu Dauda @ Hassan and 2 Others v. Republic (Criminal Appeal No. 282 of 2019). In rejoinder, Mr. Chambi reiterated his submission that the case was not proved to the required standard against the appellant on account that, the evidence of some of the witnesses was contradictory and that, the circumstantial evidence relied upon in convicting him was 12 insufficient. On the sentence of death, he agreed with the learned State Attorney that it ought to have been passed on one count only. We have duly considered the submissions of the learned counsel for the parties on the argued grounds of appeal. On the fourth ground of appeal, the contention that the evidence of PW1 and PW2 contradicted each other is, in our view, incorrect. This is because the two witnesses testified on how each one of them came to meet PW6 after his disappearance for three days. PW2 testified that, while she was on her way home, she met and took him to her home. She later called one Mama Jane and asked her to take the said child to her mother (PW1). According to the evidence of PW7 at page 107, the child had to be taken to have tea before being taken to his mother. On her part, PW1 testified that, after having been informed that PW6 had been found, she went and found her at her sister in-law's restaurant. That being the evidence of the said witnesses on how and where each one of them met PW6, the contention that their evidence was contradictory is, with respect, incorrect. With respect to the evidence of PW6 and PW11 regarding the state in which the bodies were found, it is true that PW11 testified to 13 the effect that, upon his examination of the bodies, he found that they were hit with heavy blunt object. His finding as regards the cause of death was, however, that the death of the deceased children resulted from suffocation. On the other hand, PW6's evidence was to the effect that, the deceased children were stabbed with a knife on their backs. Again, we do not find that evidence of the two witnesses to be contradictory because one of the witnesses testified on what they saw before the children had died and the other at the time when he went to the scene to conduct examination on the bodies. In any case, as submitted by Mr. Mwakasege, since the cause of death as established by PW ll, was suffocation, even if the evidence of the two witnesses in question could be taken to be contradictory, such contradiction would not be of any material effect. For these reasons, we do not find merit in the fourth ground of appeal. The same is dismissed. As for the first, second and third grounds of appeal in which, the appellant is contending that, the case was not proved beyond reasonable doubt, we hasten to state that, in our view, the arguments made in support of that contention are devoid of merit. As found by the 14 learned trial Judge, although there was no direct evidence linking the appellant with the killing of the deceased children, there was strong circumstantial evidence leading to the conclusion that, it was the appellant who committed the offence. It is trite law that a conviction may be based on circumstantial evidence, Such evidence must however, point irresistibly to the accused person's guilt. - See the cases of Amani Rabi Kalinga v. Republic (Criminal Appeal No. 474 of 2019) [2022] TZCA 633 (18 October 2022) and Justine Hamisi Chamashine v. Republic (Criminal Appeal No. 669 of 2021 [2023] TZCA 214 (2 May 2023) cited by the respondent and Mpunzu @ Elisha Mpuiizu v. Republic (Criminal Appeal No. 12 of 2002) [2004] TZCA 3 (28 June 2004). In the latter case, the Court observed that: "It is a settled trite principle o f law that in a criminal case in which the evidence is based purely on circumstantial evidence, in order for the court to found a conviction on such evidence, it must be satisfied that the evidence irresistibly points to the guilt of the accused... to the exclusion o fany other person" In the case at hand, whereas the evidence of PW6 was to the effect that, he was taken together with the deceased children in the house which came to be established that it belonged to the appellant, the evidence of PW10 implicated the appellant with the act of removing the bodies of the deceased children from the motor vehicle and throwing them in a nearby unfinished house. The trial court found the evidence of the two witnesses credible. On our part, we could not find any justifiable reasons to differ with that finding. The evidence of the prosecution witnesses was supported by the appellant's conduct which, as found by the trial court, was inconsistent with his innocence. Although he was present at his place of business on the material date, he did neither go home when he was informed of discovery of the deceased children's bodies and the commotion which ensued at his home nor did he report the matter to the police. It was not until his friend (PW4) advised and offered to transport him that he reported at Sumbawanga Central Police Station. That conduct showed that, he was avoiding to be arrested for the offence which he had committed. On the basis of the above stated reasons, we similarly do not find merit in the first, second and third grounds of appeal and thus dismiss them. 16 Before we conclude, we wish to comment on the sentencing principle where a person is convicted of murder of more than one person. As conceded by both parties' learned counsel, the sentence should be passed on one count only. The conviction in the other count (s) remains only on record. - See the case of Aliyu Dauda # Hassan and 2 Others v. Republic (supra). As was the situation in the case at hand, in that case in which the appellant were convicted of four counts of murder, the trial court passed an omnibus sentence of death to the appellants. The Court observed as follows: "The sentence was certainly omnibus. In Agnes Doris Liundi v. Republic [1980] T.L.R. 46 the Court was confronted with an akin situation and observed that once an accused person is convicted o f murder on more than one count, a sentence should be imposed on only one count". TheCourt cited also the ease of Apolinary Matheo andTwo Others v. Republic, Criminal Appeal No. 436 of 2016 in which, the rationale for that principle was stated in the following words: "The logic in this position is not far to seek; once a sentence in respect o f the first count is executed, there will be no person against whom 17 to execute the sentence in respect o f the other counts. Given the above stated position, we amend the sentence to be in respect of the first count only. In the event, having found that the appeal is devoid of merit, we hereby dismiss it in its entirety. DATED at SUMBAWANGA this 20th day of March, 2025. A. G. MWARIJA JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL The Judgment delivered this 20th day of March, 2025 in the presence of the appellant in person and Mr. David Mwakibolwa, learned State Attorney for the respondent/Republic, is hereby certified as a true 18