CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA fCORAM; JUMA, CJ.. LEVIRA, J.A. And NANGELAJ.A/l CRIMINAL APPEAL NO. 233 OF 2022 SHADRACK SOSPETER @ MKARUKA MAGANGARI..................... APPELLANT VERSUS THE REPUBLIC................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma) (Mbaowa. J.^ dated 10th day of March, 2022 in Criminal Sessions Case No. 67 of 2021 JUDGMENT OF THE COURT 11th & 14th March, 2025 JUMA. C.J.: The appellant, SHADRACK SOSPETER @ MKARUKA MAGANGARI, appeals against the judgment dated 7 March 2022, passed by the High Court of Tanzania Musoma Registry at Bunda in Criminal Sessions Case No. 67 of 2021. The appellant was charged with the offence of murder contrary to section 196 of the Penal Code Cap 16 R.E. 2002. The prosecution alleged that at around 18:00 hrs on 4 June 2009 at Igundu Village within Bunda District in Mara Region, he murdered Jaffar s/o Joel Asubuhi (who we shall refer to as "the deceased"). After convicting the appellant of murder, Mbagwa, J., sentenced him to death. He is now appealing against his conviction and sentence. The prosecution relied on three witnesses: Kabuia Mabindo (PW1), the eye-witness; Gaudensia Angaga (PW2), the deceased's wife; and E4392 D/Sergeant Juma (PW3), the investigating officer. The prosecution also put before the trial court a Report on the Post-Mortem Examination of the deceased (exhibit PI) and the appellant's cautioned statement (exhibit P2), which PW3 had recorded. The appellant, at his trial, gave sworn evidence (DW1) in which he raised his defence that the deceased pushed and provoked him into a fight, which led to him cutting the deceased with a machete, leading to the deceased's death. The prosecution's case was that around 18:00 hrs on 4 June 2009, PW1 was at home at Igundu Village nursing her seriously ill child, Hamza Seif, when one Mzee Joel Jaffer (the deceased) paid a visit. Mzee Joel persuaded PW1 to take her child to the hospital with a pledge to pay the hospital costs. According to PW1, on the way to the hospital, while pushing her sick child on a bicycle, the appellant appeared and greeted PW1. As the appellant moved on without saying a word to the deceased, he drew out a machete and began to cut the deceased on the head and hand. When PW1 raised an alarm, the appellant threatened her. PW1 abandoned the bicycle she was pushing her son with. PWl's erstwhile sick child, Hamza Seif, also escaped from the scene. PW1 rushed to the deceased's home and informed PW2, the deceased's wife. PW1 and PW2 returned to the scene of the crime and found the deceased bleeding profusely and unconscious. Police officers from Kibala Police Station arrived at the scene at 22:00 hrs. The deceased's wife (PW2) was 72 years old when she testified on 4 March 2022. She recalled the day on 4 June 2009 when her husband, the deceased, died. Earlier, her husband went out to pay for the meat he bought in the morning and promised to pass by PWl's home to visit his sick child. Around 18:30hrs, PW2 heard an alarm from a woman; the woman was PW1, who was crying and disclosed that the appellant had slashed her husband (Joel Jaffer) with a machete. When PW2 arrived at the crime scene, she found her husband unconscious, had sustained a cut at the back of his neck, and had a hand severed from the body. PW3, a police officer based at Bunda Police Station, recalled that day on 5 June 2009 when the Officer in Charge of the Criminal Investigation Department at Bunda (OC-CID) instructed him and other police officers to accompany him on a visit to a murder crime scene at Igundu village. At the deceased's home, the police saw the deceased's body, and PW1 narrated how the appellant cut and killed the deceased with a machete. According to PW3, he and PW1 went to the scene of the crime, where they found blood indicating where the deceased's body fell. PW3 further disclosed how the OC-CID communicated with a medical doctor who visited the deceased's home and conducted an on-site post-mortem examination on the deceased's body. According to PW3, the police unsuccessfully searched, looking to arrest the appellant for the deceased's murder. It took the police ten years to arrest the appellant on 26 February 2019, when an informer told them that the appellant was watching football at the Igunda centre. It took the police so many years to arrest the appellant, PW3 explained, because first, two material witnesses, PW1 and PW2, had relocated to other areas. Secondly, residents did not want to cooperate with the police because the deceased, who hailed from Rorya district, was unpopular in the village because of the many land disputes and suits he often filed against the villagers. In his defence, the appellant (DW1) told the trial court that he was born in Igundu in 1968 and lived continuously in that village until his arrest on 26 February 2019. He denied escaping from Igundu Centre till his arrest by the police while watching football. He agreed that he killed the deceased. He elaborated how, as he was returning home from the lake shore carrying a machete and passed by PWl's home, for unexplained reasons, the deceased pushed him to the ground. The machete he was carrying injured his leg. A fight ensued, each trying to control the machete. The appellant succeeded in grabbing the machete which he used to cut the deceased's head. According to the appellant, he and the deceased had land disputes, which reached High Court Mwanza, which ordered the District Court of Bunda to hear that case again. After a fresh hearing at Bunda District Court, the appellant won. The deceased appealed to the High Court and won. The appellant insisted that he cut the deceased only once, he beseeched the trial court to impose a lenient sentence because it was his first time to offend. During the appellant's cross-examination, Mr. Frank Nchanila, the prosecuting State Attorney, asked the trial judge to admit the appellant's cautioned statement, which the trial court admitted as exhibit P2. In convicting the appellant and sentencing him to death, the trial judge found the prosecution evidence as uncontested that the appellant caused the deceased's death, which the appellant himself confirmed in his defence. The only question, according to the trial judge, was whether the appellant had malice aforethought when he killed the deceased. He rejected the appellant's defence that a fight led to an unintended death when he accidentally cut the deceased once with a machete and found the appellant had malice aforethought when he killed the deceased. Aggrieved by his conviction and sentence of death by hanging, the appellant brought this appeal. On 27 September 2022, the appellant raised twelve grounds of appeal in the memorandum of appeal. He followed up on 23 November 2022 with three grounds of appeal in a supplementary memorandum. On 27 June 2024, he filed three grounds of appeal in yet another supplementary memorandum of appeal. Finally, on 5 March 2025, the appellant's learned advocate filed a supplementary memorandum of appeal containing six grounds in substitution of all previous grounds of appeal. For convenience, we shall paraphrase the six grounds of appeal as follows: One, the trial court erred in law and fact in admitting and convicting the appellant relying on the appellant's cautioned statement whose admission contravened sections 154 and 164 of the Evidence Act, Cap 6. Second, the trial court's judgment is defective for failing to comply with sections 322 (1) and (2) of the CPA and section 3 of the Appellate Jurisdiction Act Cap 141. The complaint here is to the effect that apart from convicting the appellant for murder, the judgment of the trial High Court appearing on pages 95 to 102 of the record of appeal does not show who pronounced and delivered it and does not show the mandatory sentence of death by hanging. Third, in summing up to the assessors, the triai judge failed to highlight the essential elements of the offence of murder to enable them to make their opinion correctly. Fourth, committal and trial proceedings are at variance concerning the deceased's names. Five, the admission as evidence of the report on post-mortem examination (exhibit PI) and the appellant's cautioned statement (exhibit P2) did not adhere to the Chief Justice's Manual on Exhibits Management Guidelines of September 2020. Six, the prosecution did not prove its case beyond reasonable doubt. At the hearing of this appeal, Mr. Paul Binton Obwana, the learned advocate, represented the appellant, whilst the respondent Republic had the services of Ms. Grace Michael Madikenya and Mr. Charles Kagirwa, learned Senior State Attorneys. Mr. Obwana submitted on the first ground of appeal, urging us to expunge the appellant's statement from the record of appeal (exhibit P2). He referred us to page 70 of the record of appeal where while cross- examining the appellant, Mr. Nchanila, learned State Attorney, moved the trial court to allow him to use the appellant's statement, which PW3 recorded earlier on 28 February 2019, to impeach the credibility of the appellant under section 164 (l)(c) of the Evidence Act. The trial judge duly admitted the appellant's statement as exhibit P2. The learned advocate referred us to the case of LILIAN JESUS FORTES VS REPUBLIC (CRIMINAL APPEAL NO 151 OF 2018) [2020] TZCA 1936 (2 September 2020 TANZLII), which outlines the proper procedure for impeaching a witness by using his previous statement. Mr. Obwana faulted the trial judge for failing to comply with two mandatory procedures. Firstly, failure to read exhibit P2 to the appellant. Secondly, failing to draw the appellant's attention to those parts of his statement (exhibit P2), the prosecution intended to demonstrate contradictions. For these reasons, the learned advocate urged us to expunge exhibit P2 from the record and allow the first ground of appeal. On the second ground of appeal, Mr. Obwana faulted the trial judge for pronouncing what the learned advocate considered a defective judgment that failed to show where the trial judge pronounced it and who delivered hence failing to comply with section 322 (1) and (2) of the CPA. He referred us to page 102 of the record of appeal where there is the last page of the trial court's judgment. Apart from convicting the appellant, and explaining the appellant's right to appeal, he submitted that the page does not indicate the punishment of death by hanging which section 322 of the CPA and section 26 of the Penal Code demand for those convicted of murder. Thus, Mr. Obwana urged us to allow the second ground of appeal because the judgment of the trial judge, which convicted the appellant of murder, is defective for lacking the punishment of death by hanging. Concerning the third ground of appeal, Mr. Obwana elaborated on his position that the trial judge committed the irregularity of failing to highlight in his summing up to the assessors the essential components of murder and defences available to the appellant. The learned advocate complained that while the appellant raised in his evidence potential defences of provocation and fighting leading up to the deceased's death, the trial judge committed an irregularity for failing to highlight these defences in his summing-up notes to the assessors. Mr. Obwana further wondered why, despite witnesses testifying about longstanding land disputes pitting the appellant against the deceased and other villagers, the trial judge failed to see land dispute as a contributing factor to the fight that led to the deceased's death. In urging us to allow the third ground of appeal, the learned advocate referred us to our decision in APOLINARY MATHEO AND OTHERS VS REPUBLIC 2018 [TZCA] 809 (10 December 2018 TANZLII), which cited several decisions of the Court highlighting the duty of the trial judge to highlight to the assessors any possible defences and explain to them the law regarding those defences. In the fourth ground of appeal, concerned with what were correct names of the deceased, Mr. Obwana asked whether JAFFAR S/O JOEL ASUBUHI appearing in the particulars of the charge for murder on page 1 of the appeal record, is the same deceased person appearing under the names JOEL S/O JAFFER @ ASUBUHI appearing in the information on page 43, or JOEL JAFFER ASUBUHI appearing in the facts the prosecution narrated during the Preliminary Hearing (page 45)? He urged us to allow the fourth ground of appeal because it is not clear from variants of names who the prosecution is accusing the appellant of killing. Essentially, the fifth ground of appeal contends that failure to follow the Exhibits Management Guidelines 2020 (the exhibit guidelines) before the triai judge admitted the Report on Post-Mortem Examination (exhibit PI) and cautioned statement (exhibit P2) should result in the expunging of these exhibits from the appeal record. In urging us to expunge exhibits PI and P2, Mr. Obwana submitted that paragraph 2.4.2 of the exhibit guidelines provides conditions precedent before trial courts admit exhibits as evidence. He argues that the trial judge failed to apply Paragraph 2.4.2 of the exhibit guidelines to exhibits PI and P2. Paragraph 2.4.2 of the exhibit guidelines, which Mr. Obwana insists are mandatory, states: "Before admitting an exhibit, the court must observe legal requirements for admissibility. The witness must point out specific identification marks, brand or trade name, or other peculiar features in relation to the exhibit to be tendered" In support of the sixth ground of appeal, the learned advocate for the appellant explained why he thinks the prosecution did not prove the offence of murder beyond reasonable doubt. Firstly, how the name of the deceased changed several times, he submitted, created doubt about the prosecution’s evidence. He gave another example of contradicting evidence concerning how many cuts the deceasedfs body sustained from the machete attack, which created another layer of doubts. While PW1 10 testified that the deceased body had several machete cuts, he argued the Post-Mortem Examination Report (exhibit PI) showed only one deep cut wound 5 centimetres in depth, creating doubt. Failure to evaluate the appellants defence of a provocation and a fight leading to the death of the deceased all contributed to creating doubt in the prosecution case, he submitted. Mr. Obwana rounded up his submissions by urging us to step into the shoes of the trial court and consider the defence of provocation and a fight that should reduce the offence of murder to manslaughter and immediate release of the appellant from prison. On the contrary, Ms. Grace Michael Madikenya, the learned Senior State Attorney who rose to reply, opposed the appeal and supported the judgment of the trial High Court that convicted the appellant and sentenced him to suffer death by hanging. Ms. Madikenya conceded the first ground of appeal by urging the expunging of exhibit P2 because the trial judge did not comply with the preconditions for impeaching a witness by using his previous writing. The learned Senior State Attorney agreed with Mr. Obwana that the case in LILIAN JESUS FORTES VS REPUBLIC (supra) provides the correct procedures for the trial courts to follow when parties seek to rely on a witness's previous statement to impeach credibility. On our part, the issue concerning, whether the trial judge followed proper procedure in admitting the appellant's previous statement to impeach his credit as a witness under section 164 of the Evidence Act Cap 6 should not detain us much longer in light of our statement of procedural law we set in LILIAN JESUS FORTES VS REPUBLIC (supra). The relevant section 164 of the Evidence Act states: "164.- (1) The credit o f a witness may be impeached in the following ways by the adverse party or, with the consent o f the court, by the party who calls him— (a) by the evidence o f persons who testify that they, from their knowledge o f the witness, believe him to be unworthy of credit; (b) by proof that the witness has received or received the offer o f a corrupt inducement to give his evidence; (c) byproofo fformerstatements inconsistent with any part o f his evidence which is liable to be contradicted; (d) when a man is prosecuted for rape or an attempt to commit rape, it may be shown that the complainant was o f generally immoral character: (2) A person who, called as a witness pursuant to paragraph (a) of subsection (1), declares another witness to be unworthy o f credit may not, upon his examination-in-chief, give reasons for his beliefbut he may be asked his reasons in cross-examination and the answers which he gives cannot be contradicted though, if they are false, he may afterwards be charged with giving faise evidence." As Mr. Obwana and Ms Madikenya correctly submitted, our decision in LILIAN JESUS FORTES VS REPUBLIC (supra) articulates the correct procedure to follow before impeaching the credit of a witness under section 164 of the Evidence Act. We stated that the purpose of producing previous statements of a witness in court is either to demonstrate inconsistencies of that witness or to impeach his credibility according to sections 154 and 164 of the same Act. We went on to outline the procedure for impeaching a witness by using his previous statement: 'T/re procedure for impeaching a witness by using his previous writing therefore, requires the following to be done, in our view; First, the previous statement must be read to him. Secondly, the attention o f the witness must be drawn to those parts which are intended to demonstrate contradictions: Thirdly, the statement shouid be tendered in evidence. Was the above procedure foliowed in this case? We are afraid it was not followed because what we see on page 40 to 41 are cross- examinations, after which a prayer to tender the statement is successfully made/' (Emphasis added). In our present appeal, much as Mr. Magwayega, the learned advocate for the accused (now the appellant), did not object when Mr. Nchanila asked the trial court to admit the appellant's previous statement for impeachment of his credit, failure to object the admission of previous statement does not, in our opinion, absolve the trial judge from his duty to follow the procedure we pronounced in LILIAN JESUS FORTES VS REPUBLIC (supra). In the circumstances, we allow the first ground of appeal and we expunge exhibit P2 from the record of this appeal. Ms. Madikenya urged us to dismiss the second ground of appeal where the appellant faults the trial judge for failing, after convicting, to pronounce the mandatory sentence of death by hanging. She submitted that the reading of the entire record of this appeal, including page 83 and the original record, the judgment of the trial High Court does show who pronounced and delivered the trial court judgment, and it shows after convicting the appellant, the trial judge imposed the sentence of death by hanging. Ms. Madikenya is correct to submit that this second ground lacks merit. Page 83 of the record of appeal shows the trial judge (A.A. Mbagwa) delivered his decision on 10 March 2022 in the presence of Frank Nchanila (learned State Attorney) and Mr. Magwayega (was learned advocate for the accused). Apart from hearing mitigation and aggravating submissions, page 83 confirms that the trial judge imposed against the appellant a sentence of death by hanging in terms of sections 26, 196, and 197 of the Penal Code. The totality of the record of appeal bears out the trial judge complied with sections 322 of the CPA and section 26 of the Penal Code. After convicting the appellant for murder, sentenced the appellant to suffer death by hanging. Section 322 of the CPA states: 322.-(l) Where any person is sentenced to death, he shall suffer death by hanging: (2) Where any person is sentenced to death the sentence shall direct that he suffers death by hanging. We, as a result, dismiss the second ground of appeal. Ms. Madikenya addressed the appellant's third ground of appeal, which faults how the trial judge addressed the assessors in his summing- up notes. She contrasted sharply with Mr. Obwana by expressing her full support of how the trial judge summarized evidence of both sides to the assessors, highlighting the essential elements of murder requiring proof beyond reasonable doubt. In urging us to dismiss the third ground of appeal, Ms. Madikenya referred us to page 79 of the record, where the trial judge concluded his summing up by highlighting the main issue for the assessors' opinion: "After going through evidence o f both sides, it is not disputed in this case that the deceased JOEL JAFFER @ ASUBUHI died unnatural death. It is also uncontested that the deceased's death was caused by the accused as alleged by the prosecution and 15 confirmed by the accused in his defence testimony. What you have to opine therefore is whether, according to the evidence, the accused kiiied with maiice aforethought ...If you are opined that the accused kiiied the deceased with maiice aforethought, then you shouid return a finding o f guilty and if you are satisfied with the defence evidence that the accused did not have malice aforethought, you should find the accusedguilty o f lesser offence namely, manslaughter." The learned Senior State Attorney referred us to the case of SAFARI ANTHONY MTELEMKO ANOTHER VS REPUBLIC (Criminal Appeal No 404 of 2021) [2023] TZCA 17768 (23 October 2023 TANZLJI), which, apart from referring several other decisions touching on an address to assessors in judges' summing up, underscore the caution that we should not rush to impugn the decision of the trial judge based on the way he addressed the assessors without asking whether the address prejudiced the accused or it occasioned a miscarriage of justice. She submitted that Mr. Obwani has not shown how the trial judge's address to assessors prejudiced the appellant or occasioned a miscarriage of justice that section 388 of the CPA cannot cure. We agree with Ms. Madikenya that we cannot fault the trial judge's address to the assessors. Our re-evaluation of the trial judge's summing up notes found no fault in the way the trial judge highlighted the essential 16 elements of the offence of murder. The trial judge narrated and evaluated the evidence of the prosecution and the defence concerning the essential element of the offence of murder, like causation, malice aforethought, and defences that may reduce the offence to that of manslaughter. Specifically, the trial judge highlighted the appellant's admission of killing the deceased Joel Jaffer @ Asubuhi with a machete but claimed he lacked malice aforethought. The trial judge highlighted the appellant's defence that the deceased wanted to snatch his machete, and he cut the deceased during the ensuing struggles. The trial judge invited the assessors to find the appellant guilty of manslaughter, should they accept his defence of lack of malice aforethought and convict the appellant fopr lesser offence of manslaughter. We are satisfied that the trial judge adequately addressed the assessors on vital points of law concerning the offence of murder and possible defence available to the appellant. In MIRZAI PIRBAKHSHI HAJI ALLY MIZRAI OTHERS VS REPUBLIC (Criminal Appeal No 490 of 2022) 2024 TZCA 454 (13 June 2024 TANZLII) while dealing with a complaint on the failure by the trial court to adequately address the assessors on vital points of law, in particular, the ingredients of the offence, the Court referred to our earlier decision in HATIBU GANDHI AND OTHERS V- REPUBLIC [1996] T.L.R. 12 where, apart from holding that the learned trial Judge's summing up of the case to the assessors is prudent as a matter of practice, we reiterated that: "It is sufficient for the learned triai Judge to state the substance or gist o f the case on both sides to enabie the assessors' opinions to be formed on the case in generai or on any particular point required\" We, as a resuit, dismiss the appellant's ground number three. Ms. Madikenya urged us to dismiss the fourth ground of appeal concerning how the deceased's name has varied across the appeal record. Ms. Madikenya argued that the variants of the deceased's name did not prejudice the appellant or occasion a miscarriage of justice. While agreeing with Mr. Obwana that the deceased’s name has appeared in several variants, she hastened to insist that the various shades of the deceased's name did not prejudice the appellant's defence nor occasioned a miscarriage of justice. We agree with Mr. Obwana, the learned advocate for the appellant, that the name of the deceased appearing in the charge sheet on page 1 of the appeal record differs from the deceased's name later in the proceedings of the trial High Court. The deceased's name on the charge sheet is JAFFAR S/O JOEL ASUBUHI. The record of the Preliminary Hearing refers to Joel Jaffer Asubuhi. In her testimony, the deceased wife (PW2) refers to her deceased husband as Jaffer Joel Asubuhi. In his ruling on the prima facie case against the appellant, the trial judge referred to Joel s/o Jaffer @ Asubuhi. The appellant refers to Joel Jaffer in his defence evidence (DW1). The Report on Postmortem Examination (exhibit PI) refers to Joel, Jaffer’s son. The Judgment of the trial High Court refers to Joel s/o Jaffer @ Asubuhi. We shall dismiss the fourth ground of appeal. Despite the casual way the record of appeal has treated the deceased's name, we agree with Ms. Madikenya's argument that variants of the deceasedfs name did not prejudice the appellant's defence nor occasioned a miscarriage of justice. This is evident in his defence evidence on page 68 of the record, the appellant admitted he knew the person he killed: "Yes, I know the allegations facing me. It is true that on the fateful day, I killed JoelJaffer." In MORINGE KADOGOO VS REPUBLIC (CRIMINAL APPLICATION 9 OF 2005) 2006 TZCA 17 (27 October 2006 TANZLII), the deceased was known as Kassim Rashid and not Kassim Mohamed as shown in the judgment on appeal. We observed that the omission appearing in the judgment was purely out of typographical error; that omission did not occasion a miscarriage of justice because the result of the appeal was not affected. Submitting to oppose the fifth ground of appeal concerning compliance with the Exhibits Management Guidelines of 2020, the learned Senior State Attorney impressed that after expunging the appellant's cautioned statement (exhibit P2) from the appeal record, the only exhibit remaining for purpose of the fifth ground of appeal is the Report on Postmortem Examination (exhibit PI). Ms. Madikenya explained why exhibit PI, which the trial court admitted during the Preliminary Hearing, cannot again be subject to the conditions under the Exhibits Management Guidelines of 2020. To support her position, the learned Senior State Attorney referred us to the proceedings of the Preliminary Hearing on page 45 of the record, where Ms. Mary Joachim, learned advocate for the accused (now the appellant), did not object when the prosecution tendered exhibit PI. Ms. Madikenya went further and referred us to page 47 of the appeal record where, when asked whether the appellant wanted to cross-examine the doctor who prepared exhibit PI, Ms. Mary Joachim, learned advocate, answered: "We do not intend to cross-examine the doctor!"ln the circumstances, Ms. Madikenya urged us to dismiss the fifth ground of appeal that seeks to subject exhibit PI to the admission conditions prescribed by the Exhibits Management Guidelines of September 2020. Concerning the question of whether the scope of the Exhibits Management Guidelines of September 2020 overrides existing statutory- based and case-law-based procedures for admitting exhibits in criminal trials, Ms. Madikenya has, in our view, articulated the correct legal position to the effect that following the admission of the Report on Postmortem Examination (exhibit PI) as undisputed matters during the Preliminary Hearing governed by section 192 of the CPA, admissibility of exhibit PI as evidence cannot be questioned later during the hearing, not even under the Exhibits Management Guidelines. Immediately after the Preliminary Hearing, exhibit PI became undisputed matter of fact where witnesses will not be called to prove. We underscored the purport of undisputed matters in the Preliminary Hearing in the case of DIRECTOR OF PUBLIC PROSECUTIONS VS JABA JOHN (CRIMINAL APPEAL NO 206 OF 2020) [2022] TZCA 406 (11 July 2022 TANZLII) where we said: "It is the position of the iaw that, the aim of the preliminary hearing is to speed up criminai trials so that matters which are not disputed wiil be identified and thus witnesses to prove them wiii not be called to testify hence saving court’s time and costs." Again, in our reflection, we do not think the Exhibits Management Guidelines 2020 can override procedures outlined by statutes or judicial precedents on the admission of exhibits as evidence in court. The Exhibits Management Guidelines clearly explains its basis is from statutes, rules, and case law. In other words, the Guidelines provide guidance and aim to achieve uniformity amongst Judges and Magistrates across all court levels in matters relating to admission, rejection, and disposal of exhibits. However, where statutes, statutory rules, or case law make provisions, those provisions override the Guidelines. Para 2.4.2 of the Guidelines states as much: "Before admitting an exhibit, the court must observe legal requirements for its admissibility... [emphasis added]],''implying statutes, Rules, or Case law take precedence over the Guidelines. We, as a result, dismiss ground number five. Ms. Madikenya next urged us to dismiss the sixth ground of appeal where Mr. Obwana the learned advocate for the appellant, submitted that prosecution did not prove its case beyond reasonable doubt. Ms. Madikenya submitted that the appellant had the required malice aforethought when he killed the deceased. She highlighted two elements constituting the offence of murder which she, the trial judge, as well as Mr. Obwana found undisputed. The first element is the deceased's death was unlawful. Secondly, she urged, it is undisputed it was the appellant who caused the deceased's death, which he admitted in his defence evidence. Before supporting her stance that evidence proved the element of malice aforethought (intention to kill), the learned Senior State Attorney dismissed off as belated afterthought the appellant's attempt to spring up the defence that the deceased's death resulted from a provocation that led to a fight and death. She questioned why the appellant failed to raise the defence when an eye witness (PW1) and later the deceased's wife 22 (PW2) testified but ambushed the prosecution during his defence evidence as DW1. Citing the support from NYERERE NYEGUE V. REPUBLIC, CRIMINAL APPEAL NO. 67 OF 2010 [2012] TZCA 103 (21 May 2012 TANZLII), Ms. Madikenya submitted that failing to cross-examine PW1 and PW2 during evidence-in-chief but raising the defence of a fight leading to death during the defence evidence and at his appeal, makes the appellant's defence of fighting leading to the deceased's death to a belated afterthought. Then, Ms. Madikenya went to the record of evidence to demonstrate how the evidence of the eye-witness (PW1), the evidence of the deceased's wife (PW2), and the evidence of the report on post-mortem examination (exhibit PI), individually or collectively not only proved that the appellant killed the deceased with malice aforethought; but ruled out any suggestion that there was a fight that led to the deceased's death. The learned Senior State Attorney referred to our often-cited decision in ENOCK KIPELA VS THE REPUBLIC (CRIMINAL APPEAL 150 OF 1994) [1999] TZCA 9 (10 JUNE 1999 TANZLII) and argued that the appellant killed with malice aforethought can be discerned from the evidence of PW1, PW2, and exhibit PI. She discerned malice aforethought from the appellant's unprovoked use of a machete against the deceased, the deceased suffering from excessive bleeding, causing his death. She added that it did not matter to discern malice aforethought that PW1, on the one hand, said the deceased suffered from several cut wounds while the post­ mortem report disclosed one deep cut wound. According to the (earned Senior State Attorney, the bottom line is the amount of violence or force the appellant used to kill the deceased manifested malice aforethought. To cement her argument, Ms. Madikenya referred us to our decision in CHACHA BHOKE NYAITAT1 VS REPUBLIC [2024] TZCA 987 (25 October 2024 TANZLII), where the Court highlighted various manifestations of malice aforethought. We stated that where the appellant carried a machete, which is a deadly weapon before he confronted the deceased, reveals the ill motive and intention of the appellant to kill. Ms. Madikenya concluded her submissions by urging us to dismiss the appellant's appeal. We have re-evaluated the evidence and analysed the learned counsel's submissions; the authorities cited, and the law. The trial judge and the learned counsel before us are correct that the deceased died an unlawful death. It is undisputed that it was the appellant who caused the deceased death, which the appellant confirmed in his defence. From submissions, the outstanding issue for this Court's determination is whether the appellant had malice aforethought when he killed the deceased with a machete. We agree with Ms. Madikenya; the case of ENOCK KIPELA VS THE REPUBLIC (supra) illustrated the factors that help courts to ascertain from evidence whether a person accused of murder had requisite malice aforethought: "(1) the type and size of the weapon, if any, used in the attack; (2) the amount o f force applied in the assault; (3) the part or parts o f the body the blow or blows were directed at or inflicted on; (4) the number o f blows, although one blow may, depending upon the facts o f the particular case, be sufficient for this purpose; (5) the kind o f injuries inflicted; (6) the attacker’s utterances, if any, made before, during, or after the killing; and (7) the conduct o f the attacker before and after the killing." We agree with the learned Senior State Attorney that the evidence against the appellant manifest several factors we highlighted ENOCK KIPELA VS THE REPUBLIC (supra) that manifest malice aforethought. These factors include a dangerous weapon, a machete, to attack the deceased, who, according to the postmortem examination report (exhibit PI), sustained a “deep cut wound on the left side of the skull, approximately 5 centimetres deep." The deep-cut wound on the skull is not consistent with the appellant's claim that it was the deceased who threatened and pushed him down, and during the struggle to control the machete, he cut the deceased once. We are therefore satisfied that we have no reason to interfere with the conviction and sentence that the trial High Court imposed because the prosecution proved beyond reasonable doubt the appellant had the required malice aforethought when he killed the deceased. As a result, we dismissed the appellant's appeal against conviction and sentence. DATED at MUSOMA this 14th day of March, 2025. I. H. JUMA CHIEF JUSTICE M. C. LEVIRA JUSTICE OF APPEAL D. J. NANGELA JUSTICE OF APPEAL The Judgment delivered this 14thday of March, 2025 in the presence of the Appellant in person - linked Via Video Conference from Musoma District Prison and Mr. Jonas Samwel Kivuyo, learned State Attorney for the respondent/Republic is here by certified as a true copy of