CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: JUMA. C.J.. MASOUP, J.A. And NANGELA. J.A.^ CRIMINAL APPEAL NO. 235 OF 2022 CHACHA MARWA MWERA @ JUMA..................................................... APPELLANT VERSUS THE REPUBLIC................................................................................. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma) (Hon. Mahimbali, J.) dated 22nd day of February, 2022 in Criminal Sessions No. 89 of 2021 JUDGMENT OF THE COURT 12th & 18™ March, 2025 JUMA. C.J.: This appeal traces back to a charge sheet dated 24 March 2021 in which the prosecution charged the appellant, CHACHA S/O MARWA MWERA @ JUMA, with the offence of murder contrary to sections 196 and 197 of the Penal Code [CAP 16 R.E. 2019]. The particulars of the offence were that on 18 March 2021, at Kerende Village in Tarime District of the Mara Region, he murdered Jackson s/o Bhoke Marwa, who we shall refer to as "the deceased." Only two witnesses, Ernest Maseke Marwa (PW1) and Musa Magaigwa Msabi (PW2), testified for the prosecution. The prosecution also relied on the post-mortem examination report (exhibit PI) and a sketch map of the crime scene (exhibit P2). The appellant testified in his defence (DW1) and did not call any supporting witness. At the trial, PW1 testified that while watching a night football match shown live on television between Chelsea and Atletico Madrid, he witnessed the appellant and his friend Wegama Stephano Mgesi assaulting the deceased with a knife. PW2 owned the business, which showed live football matches on television and video. PW1 recalled the incident leading up to the death of the deceased towards midnight on 17 March 2021 when the appellant and his friend Wegama Steven Mgesi arrived on a motorcycle and went to a pub belonging to Marwa Matiko Marwa where the deceased was sitting on the verandah. From a distance of eight paces away, PW1 witnessed the appellant hitting the deceased using a beer bottle. When the deceased attempted to escape, his friend Wegama Stephano Mgesi restrained the deceased as the appellant began to stab him with a knife. When the deceased cried for help, PW1 and those present moved closer to where the deceased was. As the appellant and his friend Wegama Steven Mgesi were on their motorcycle escaping, the onlookers threw stones at the two attackers and hit the appellant. As 2 PW1 and PW2 tried to help, the bleeding victim succumbed to his injuries. The whole incident took place within five minutes. When put to his defence, the appellant, in his sworn testimony (DW1), explained to the trial court what happened the night the deceased died. DW1, his brother Mwita Marwa @ Juma, and his friend Wegama Steven Mgesi arrived on a motorcycle at Kerende village around 23:00. Since the appellant was driving the motorcycle; they first dropped his brother at Nyabonchinchibu, his home. As the appellant and his friend passed through Kerende village, they saw people drinking beer at a pub by Maria Matiko Marwa. His friend, Wegama Steven Mgesi, asked the appellant to stop because he had spotted the deceased who owed him money. The appellant accosted the deceased, who was drinking beer, and asked him to pay the money he was indebted to the appellant. According to the appellant, the deceased responded by throwing and hitting him with a bottle of beer on his right side. Spontaneously, his friend Wegama Steven Mgesi fished out a knife hidden underneath his coat and stabbed the deceased. As the appellant was wiping blood from his face, he realized that his friend had stabbed the deceased and escaped. In convicting the appellant and sentencing him to death by hanging, the trial judge, in light of the case of WAZIRI AMANI V REPUBLIC (1980) TLR 250, considered the issue of visual identification of the 3 appellant in the nighttime conditions and concluded that there were no impediments that prevented PW1 and PW2 from identifying the appellant at the crime scene. The trial judge also, in light of the case of ENOCK KIPELA VS THE REPUBLIC (CRIMINAL APPEAL 150 OF 1994) [1999] TZCA 9 (10 JUNE 1999 TANZLII), considered the essential element of intention to kill or malice aforethought which the law requires the prosecution to prove beyond reasonable doubt. He concluded that attacking the deceased on his left armpit and left side of the chest, using a dangerous weapon (a knife), two blows directed at the vulnerable parts of the deceased's body, and leaving the deceased lying down without assistance suggested nothing but intention to kill. The appellant was aggrieved by his conviction and sentence and preferred this appeal. The appellant filed a Memorandum of Appeal and raised eight grounds of appeal. Still, at the hearing of this appeal, Mr. Paul Binton Obwana, the learned advocate who appeared for the appellant, informed the Court he would retain and submit on grounds 1, 4, 5, and 8 only. On paraphrasing, ground number one fault the trial judge for convicting the appellant on the strength of unfavourable visual identification evidence. Ground number 4 claims that the trial judge did not properly sum up the case to the assessors and misdirected the assessors on the evidence of prosecution witnesses. Ground number 5 raises issues against inconsistencies and contradictions in the evidence of PW1 and PW2. Ground number 8 faults the prosecution for failing to prove the offence of murder to the standard required from criminal cases. At the hearing of this appeal, Ms. Shose Naiman, the senior state attorney, and Mr. Charles Kagirwa, the senior state attorney, appeared for the respondent Republic. In arguing the appeal, the learned advocate for the appellant, Mr. Paul Obwana, submitted ground number 4 alone, consolidated grounds 1 and 5, and argued them together. On ground 4, Mr. Obwana reiterated that the trial judge failed to comply with the procedure for summing up to the assessors. The trial judge did not summarize the evidence of every witness. Mr. Obwana faulted how the trial judge concentrated on the evidence of PW1 and was wrong to suppose the evidence of PW1 was similar to one of PW2. One of the dissimilarities between the evidence of PW1 and PW2, the learned advocate noted, is where PW1, on page 26 of the appeal record, mentions torchlight, whereas PW2 did not mention torchlight. Mr. Obwana also mentioned the dimension of a third party throwing a stone, which PW2 only mentioned. He submitted that the trial judge should have addressed the assessors to the participation in the crime of the appellant and his friend Wegama Steven Mgesi together with an unknown third party. The learned advocate relied on in the case of YUSTINE ROBERT V REPUBLIC, CRIMINAL APPEAL NO 329 OF 2017 [2019] TZCA 3 (23 October 2007 TANZLII) to submit that section 388 of the Criminal Procedure Act Cap 20 (the CPA) cannot save this appeal from the failure to address the assessors that there was a third person in the death of the deceased. In consolidated grounds 1, 5 and 8, Mr. Obwana presented two hypotheses that deny prosecution proof of the case beyond reasonable doubt. If PW1 testified about the use of a torchlight and there was an electricity light, the learned advocate submitted, the first hypothesis is that the light was not bright enough to facilitate identification. The second hypothesis is that there were no lights at the crime scene. Because of two possible hypotheses regarding the source of lights and intensity, he urged us to see doubt in the prosecution's case. Mr. Obwana highlighted areas of the trial court's decision that created doubt in the prosecution case. He faulted the trial judge for introducing matters outside the evidence of the record of appeal. He elaborated that while PW2 stated that the incident took only five minutes, the trial judge mentioned ten minutes. The learned advocate invited us to doubt the credibility of the two main prosecution witnesses arising from PW2's evidence that it was Mwita Marwa who threw a stone at the deceased. 6 The learned advocate for the appellant similarly raised issues with failure by the prosecution to bring the medical doctor who filled the medical examination and the police officer who conducted the investigations. These absent witnesses, he submitted could shed some light to determine whether it was a stone which Mwita Marwa (the third party) threw, that finished off the deceased. Mr. Obwana referred us to the sketch map of the crime scene (exhibit P2). He argued that the trial judge was mistaken in suggesting that PW1 and PW2 did not face impediments blocking their visual identification. He submitted that the layout of houses drawn on the sketch map shows impediments contradicting the trial judge's finding. He invited us to draw adverse inferences against the prosecution's failure to bring the witness who drew exhibit P2. The learned advocate urged us to invoke the guidelines we set in WAZIRI AMANI V REPUBLIC (supra) to find that PW1 and PW2 faced impediments, which created the possibility of their mistaken identification of the appellant. In his reply, Mr. Kagirwa learned Senior State Attorney addressed ground four and contradicted the appellants' complaint over addressing the assessors. He referred to pages 48 to 54, where the trial judge sufficiently addressed the assessors by summarizing the evidence of all witnesses and highlighted the issue of identification and the need for proof 7 of the essential elements constituting the offence of murder. Mr. Kagirwa added that the learned advocate for the appellant did not show how his complaint prejudiced the appellant or occasioned injustice. He referred to the case of SAFARI ANTHONY @ MTELEMKO & ANOTHER V R, CRIMINAL APPEAL NO 404 OF 2021 (unreported), where the Court emphasized that summing up is a procedural step whoever complains about the procedure must show how it prejudiced the accused, short of that the procedural irregularity in summing up is curable under section 388 of the CPA. Mr. Kagirwa urged us to dismiss ground four. Mr. Kagirwa next addressed grounds 1, 5, and 8, concerning complaints whether the witnesses (PW1 and PW2) observed the crime for ten or for five minutes, and who, between the appellant, his friend and an unknown third party threw the stone that hit the deceased. The learned Senior State Attorney urged us to dismiss these complaints because they are minor contradictions which do not go to the root of proof of murder. In cementing his submissions that minor contradictions between PW1 and PW2 cannot dent their credibility, Mr. Kagirwa cited the case of DICKSON ELIA SHWAPWATA & ANOTHER V R, CRIMINAL APPEAL NO 92 OF 2007 [2008] TZCA 17 (30 May 2008 TANZLII). In concluding his submissions, Mr. Kagirwa revisited the essential element of the offence of murder, which the prosecution proved beyond 8 reasonable doubt against the appellant. First, the prosecution proved the unnatural death of the deceased. The appellant and his friend first hit him with a bottle, hit him with a stone, and stabbing with a knife, which led to the unnatural death of the deceased. He referred to the post-mortem examination report (exhibit PI) as evidence that proved the unlawful death of the deceased. Mr. Kagirwa submitted that the report shows the deceased's body suffered from a fresh stab wound on the left side of the chest and loss of blood that caused unlawful death. The learned Senior State Attorney submitted that the prosecution proved the appellant caused the death of the deceased. He elaborated that the eyewitness, PW1, saw when the appellant attacked the appellant with an empty bottle and stoned him before stabbing the appellant to death. According to Mr. Kagirwa, the prosecution proved the third element of intention to kill (malice aforethought). The learned Senior State Attorney argued that the evidence of PW1, PW2, and the post-mortem examination report proved the manifestations of malice aforethought which this Court outlined in our decision in ENOCK KIPELA VS THE REPUBLIC (CRIMINAL APPEAL 150 OF 1994) [1999] TZCA 9 (10 JUNE 1999 TANZLII). He expounded that the weapons the appellant used (an empty beer bottle, a stone, and a knife) manifested his intention to kill the deceased, which he did. Mr. Kagirwa urged us to dismiss this appeal. We have evaluated the submissions on the grounds 1, 4, 5, and 8 made by the learned advocate and the learned Senior State Attorney. As we have said on several occasions, a first appeal to this Court takes the form of a re-hearing. The appellant and the respondent Republic are entitled to receive this Court's fresh re-evaluation of the evidence relating to grounds 1, 4, 5, and 8 and determine whether the prosecution proved the offence of murder against the appellant. We have re-evaluated the complaint that the trial judge failed to properly sum up to the assessors properly. It is clear to us that the trial judge addressed the assessors from pages 43 to 48 of the record of appeal. He explained to them what constitutes malice aforethought and thereafter. He invited them to give their opinion since the appellant had admitted the offence; the trial judge had one duty to address the assessors regarding the issue of whether the appellant had malice aforethought or not, and he correctly did so. We agree with Mr. Kagirwa that the case of SAFARI ANTHONY @ MTELEMKO & ANOTHER V R (supra) he cited reflects our position that summing up is a procedural step and minor lapses are curable section 388 of the CPA. We also agree that if Mr. Obwana, learned advocate for the appellant, did not explain how that failure prejudiced the appellant or occasioned injustice. We shall dismiss ground four. We next deal with the issue of whether the prosecution evidence, particularly that of PW1 and PW2, were marred with contradictions and inconsistencies to such an extent that this Court considered the appellant's conviction unsafe. We have expressed our position concerning contradictions and discrepancies between witnesses in several decisions like DICKSON ELIA NSAMBA SHAPWATA AND ANOTHER V. REPUBLIC, Criminal Appeal No. 92 of 2007 and MUSSA MOSES JOHN & OTHERS V. R. CRIMINAL APPEAL NO. 50 OF 2020 (both unreported). In MUSSA MOSES JOHN & OTHERS V. R. (supra), we dealt with a complaint that evidence adduced by prosecution witnesses was tainted with contradictions, inconsistencies, and discrepancies and cited our decision in DICKSON ELIA NSAMBA SHAPWATA (supra), where, while dealing with discrepancies in the evidence of witnesses, the Court approved a passage from Sarkar, The Law of Evidence 16th Edition, 2007 that: "Normal discrepancies in evidence are those which are due to normal errors o f observation; normal errors o f memory due to lapse o f time, due to mental disposition such as shock and horror at the time o f the occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not norma! and not expected o f a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility o f a parties' case, material discrepancies do." We have in our present appeal re-evaluated the evidence of the two witnesses, PW1 and PW2, and found that theirs was normal discrepancies between honest and truthful witnesses who recounted what they saw the day the deceased died. They explained how they identified the appellant. They were consistent with the question of who stabbed the deceased and who was holding it. They all mentioned the appellant and his friend Waigama. The matters Mr. Obwani raised about PW1 and PW2 are anything but minor inconsistencies due to a lapse of time and memory and do not go to the root of the matter, which is proof that the appellant and his friend Wegama Steven Mgesi, who killed the deceased and the appellant conceded during the Preliminary Hearing. The appellant's eighth ground contended that the prosecution failed to prove that he murdered the deceased with malice aforethought. As was evident in the Preliminary Hearing, when the prosecution read the charge, the appellant accepted that he killed the deceased without malice aforethought: "Ni kwe/i Mheshimiwa Ha hatukusudia—It is true, but we did not intend to kill him." At the Preliminary Hearing on 8 December 2021, the appellant and the prosecution agreed as undisputed the following facts of the case: First, Jackson Bhoke Marwa was dead; he died on 18 March 2021. Second, the day the deceased died, the appellant and his friend Waigama Mgesi Kerege went to a beer bar owned by Maria w/o Matiko ten minutes after midnight and found the deceased Jackson Bhoke Marwa. Third, after a brief conversation, the appellant hit the deceased with an empty bottle on the head. The deceased ran away, whereupon the appellant and his friend Waigama Mgesi Kerege gave chase and caught the deceased. Fourth, the appellant stabbed the deceased with a knife on his chest. In DIRECTOR OF PUBLIC PROSECUTION V. JABA JOHN, CRIMINAL APPEAL NO. 206 OF 2020 [2022] TZCA 406 (11 July 2022 TANZLII), the Court discussed the importance of the preliminary hearing of the case to expedite the trial by reducing the number of witnesses parties call to testify on undisputed facts of the case. We stated: "It is the position o f the law that the Preliminary Hearing aims to speed up criminal trials so that to identify matters which parties do not dispute, it dispenses with the need to call witnesses to prove undisputed matters, hence saving the court's time and costs." During his defence, he changed his story, denied having killed the deceased, and shifted the blame to his friend Wegama. Despite this shift of blame, which we consider to be an afterthought, we agree with the trial judge that the way he stabbed the deceased on his left armpit and left side of the chest, using a dangerous weapon (a knife), and directed stab wounds at the vulnerable parts of the deceased's body nothing but the intention to kill. The question of whether it was a stone or a knife that finished off the deceased should not take much of our time. In the memorandum of matters agreed upon during the Preliminary Hearing, the appellant agreed to hit the deceased with an empty bottle of beer, chase the deceased down, and hit him with a stone before stabbing him to death. The appellant himself testified that the deceased bled to the extent that he wiped blood from his face. Apart from the post-mortem report (exhibit PI), which manifested and proved the appellant had malice aforethought, the evidence from PW1 and PW2 proved the appellant's intention to kill. In addition, the appellant and his friend's conduct escaping from the crime scene proves that the appellant and his fugitive friend had the intention to kill the deceased, which they did. We cannot fault the trial judge for concluding that the appellant killed the deceased with malice aforethought. In conclusion, and for the foregoing reasons, we do not find any grounds to interfere with the judgment and decision of the trial High Court that the appellant caused the unlawful death of the deceased with malice aforethought. As a result, the appeal lacks merit, and we have dismissed it in its entirety. DATED at MUSOMA this 16th day of March, 2025. I. H. JUMA CHIEF JUSTICE B. S. MASOUD JUSTICE OF APPEAL D. J. NANGELA JUSTICE OF APPEAL The Judgment delivered this 18thday of March, 2025 in the presence of the appellant in person via video link from Musoma District Prison and Mr. Isihaka Ibrahim Mohamed, learned State Attorney for the respondent/Republic,