CRIMINAL APPEAL NO 15 OF 2022 FREDY MATHAYO NYAGAWA 2 OTHER VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA. ( CORAM: KEREFU. 3.A., MGONYA, 3.A And MLACHA, 3.A.1 CRIMINAL APPEAL NO. 15 OF 2022 FRED MATHAYO NYAGAWA 1st APPELLANT ISAYA MGIMBA........ ........ 2nd APPELLANT JAMES MTELEKE........ ....... 3RDAPPELLANT VERSUS THE REPUBLIC RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Iringa) rMatoaolo. 3.1 dated the 12th day of November, 2021 in Criminal Sessions No. 34 of 2017 JUDGMENT OF THE COURT 14* & 21st March, 2025 MLACHA, J.A.: The appellants, Fred Mathayo Nyagawa, Isaya Mgimba and James Mtekele, 1st, 2nd and 3rd appellants respectively, together with another person who was acquitted, were charged of murder at the High Court of Tanzania, at Iringa, in Criminal Sessions Case No 34 of 2017. The particulars contained in the information stated that they murdered Mchape Mkosa (the deceased) on 17th December, 2015 at Mpogolo Village, Wangingombe District in Njombe Region. They pleaded not guilty. They were however, following a full trial which was conducted, found guilty, convicted and sentenced to the mandatory sentence of death by hanging. The prosecution paraded 7 witnesses, who tendered 9 exhibits, to assist them in discharging their burden of proof. The appellants were the sole defence witnesses. They had no exhibits to tender. Briefly stated, the evidence upon which the prosecution case was based can be presented as follows: On 16/12/2015 at 5:00 pm, Yohana Mkosa (PW4) moved with his young brother, the deceased, on a motorcycle to a place called Kibao cha Mkwavila. The deceased owned the motorcycle, Registration No. T 267 CG. He used it for business purposes, locally known as'Bodabodd. When they reached at Kibao cha Mkwavila area, the deceased told him that someone needed his services. Soon, a person who turned later to be the 3rd appellant, came. PW4 described him as a man of middle size, not tall or short, with a black complexion. The deceased picked him and they disappeared. PW4 did not see the deceased anymore. On 17/12/2015 PW4 received information that his young brother had been killed at Mpogolo Village Forest. He moved to the forest and found the dead body. It had a cut wound. There were many people at the scene of crime, the police inclusive. He told the police that he suspected the person who left with the deceased on the previous day. He added that he did not know his name, but he could recognise him by face. After post mortem examination which was done by Dr. Magreth Msosi, the body of the deceased was handled over to the family for burial. The doctor endorsed on the post mortem examination report (Exhibit P2) that, the cause of death was severe Haemorrhage due to multiple cut wounds. Both the sketch map (Exhibit PI) and Post Mortem Examination Report were received as exhibits during preliminary hearing without objection. The appellants and their advocates were addressed in terms of section 291 (3) of the Criminal Procedure Act, Cap. 20 R. E. 2019 (the CPA) and responded that they did not need the doctor to be called as a witness later during the trial. It was the evidence of Inspector Raphael Benard Mlangwa (PW3) that, while at Makambako Police Station on 7/3/2016 at 3:30 pm, he was called by the OC - CID, SP Yesaya Sudi, and assigned to conduct an identification parade involving a suspect of murder, James Mteleke (3rd appellant). The parade was prepared by DC Francis behind the police station. He moved behind the police station where he found 10 participants lined up. He requested James Mteleke, who was among them, to come forward. He informed him that he was the subject of the identification parade. That, he was free to change position and clothes. He could also put a hat if he wished. The 3rd appellant chose to stand at the 3rd position from the right. He opted to remain with his clothes. That done, PW3 directed the identifying witness to be called, The witness, (PW4) was brought by DC Mariam. He told him the purpose of the parade; that he stated in his statement that he saw the person who had left with the deceased on that day (16/12/2015), whom he did not know his name, but could recall his face, if shown. He was requested to move through the line and touch the person in the shoulder, if he will happen to be in the line. He moved through and touched the 3rd appellant on the shoulder. PW3 called the 3rd appellant in front and asked him if he was satisfied with the procedure used to identify him, He said that he had no problem with the procedure. PW3 prepared the Identification Parade Register, PF 186 (Exhibit P6), which was signed by all people who attended the parade, including the 3rd appellant. It was the evidence of Inspector Kelvin William Lubera (PW1) of Makambako Police Station that, he questioned the 3rd appellant on 14/3/2016 in relation to the killing of the deceased. He confessed to kill the deceased in the company of other people and robbed the motorcycle which he sold at Mbeya, He agreed to take them to Mbeya. PW1 and other policemen moved to Mbeya to trace the motorcycle led by the 3rd appellant. They arrived at Msheme Village, Mbeya. The 3rd appellant took them to the house of the buyer, Mr. Abraham Kidile. They conducted a search at his house and found the motorcycle Registration No. MC 865 AZS (exhibit P4). PW1 prepared a certificate of seizure (Exhibit P3) which was signed by all people in attendance, including Mr, Kidile and the 3rd appellant. They went back to Makambako police station with the motorcycle. The motor vehicle was inspected by D. 4805 SSGT Fundis Mpululu (PW5) who, after checking details of ownership with the TRA, prepared the Vehicle Inspection Report (exhibit P7). The Motor Vehicle Registration card, the sale agreement and purchase receipt (exhibit P8 collectively) were tendered in evidence by Inspector Gregory Lucas (PW7), proving that the motorcycle was the property of the deceased. The evidence indicated further that, the 1st appellant confessed to commit the crime before G 201 DC James (PW2) who recorded his cautioned statement (exhibit P5). That was also the case for the 2nd appellant who confessed before PW7, who recorded his cautioned statement, exhibit P9. The cautioned statements carry the details on how the three appellants, in their joint criminal enterprise, planned, attacked and murdered the deceased in a move to robb his motorcycle, which they sold at Mbeya. The appellants dissociated themselves from the commission of the crime. It was the defence of the 1st appellant that he does not know the 2nd and 3rd appellants who are complete strangers to him. He denied his cautioned statement, exhibit P5 with the words; 'That is not my statement/He said that, when he was taken to the investigation room, he found papers which had already been written and he was required to sign, for which, he refused. He was severely beaten. He gave in and signed to avoid further beatings. It was the evidence of the 2nd appellant, that the 1st appellant is completely new to him but he knows the 3Wappellant. He knew him in connection with the motorcycle (Exhibit P4). He bought it from the 3rd appellant as a broker. It is his property not the deceased. He denied to make any cautioned statement to the police. The 3rd appellant denied to take the police to Mbeya to recover the motorcycle, exhibit P4. He denied to kill the deceased. He denied to know the Ist appellant but accepted knowledge of the 2nd appellant. He said that, he sold the motorcycle to the 2nd appellant as a broker. He is also a broker for different properties. When he was referred to exhibit P5 and P9, he denied knowledge of their contents. He said that he does not know the way his name crossed to the statements. Based on the evidence of PW4, the oral confession of the 3rd appellant made to PW1 leading to the recovery of the motorcycle, which was duly identified by PW4, the motor vehicle registration card, the sale agreement and sale receipt, and the cautioned statements of the 1st and 2nd appellants, the trial Judge found that there was good evidence to convict the appellants of the offence of murder. He did not see doubts in the defence of the appellants which was considered and rejected. He convicted the appellants as charged and sentenced them to death by hanging as intimated above, hence the instant appeal before the Court. The appellants filed a joint memorandum of appeal (the original memorandum of appeal) o'n ,23rd September, 2022 with 7 grounds of appeal. Later, at diverse dates, the Court received the first Supplementary Memorandum of Appeal with 5 grounds and the second supplementary memorandum of appeal with 3 grounds. Mr. Moses Ambindwile, Mr. Jally Mongo and Mr. Jassey Mwamgiga, learned advocates, appeared for the 1st, 2nd and 3rd appellants, respectively. The respondent Republic was represented by Mr. Tito Ambangile, Senior State Attorney. At the first hearing, Mr. Ambindwile abandoned the all the grounds in the original memorandum of appeal and the second supplementary memorandum of appeal. He remained with the 7 grounds in the first supplementary memorandum of appeal. Mr. Mongo retained ground 3 in the original memorandum of appeal and ground 2 in the first supplementary memorandum of appeal. He abandoned the rest. Mr. Mwamgiga retained ground 3 in the original memorandum of appeal. He abandoned the rest. Simply stated therefore, the appeal rests on ground 3 of the original memorandum of appeal and the first supplementary memorandum of appeal. We will paraphrase the grounds of appeal, for easy of reference. Ground 3 of the original memorandum of appeal reads as under: 3. That, the trial court erred in iaw in conviction the appeilant without evaiuating the evidence adduced by the prosecution. The grounds in the first supplementary memorandum of appeal read as follows: 1. That, the trial Court erred in iaw and fact in convicting the appellants based on retracted or repudiated confessions without were not corroborated. 2. That, the trial Court erred in iaw and fact to convict the appellants based on retracted or repudiated confessions which were obtained without a trial within trial. 3. That, the trial Court erred in iaw and fact by relying on a certificate o f Seizure (Exhibit PE3) which was illegally procured. 4. That, the trial court failed to evaluate the evidence adduced during the trial. 5. That, the trail Court failed in iaw and fact to convict the appellants in the absence o f materia! witnesses. We will now move to examine the grounds of appeal. We will start with ground two of the first supplementary memorandum of appeal. The complaint behind this ground is that, the cautioned statements of the 1st and 2nd appellants, exhibits P5 and P9 respectively, were admitted without a trial within trial, making them illegal. The Court is invited to expunge them. It was the submission of Mr. Ambindwile on ground two that, looking at the decision of the High Court as appearing at pages 233 - 235, 241 - 242 and 343 of the record of appeal (the record), it is obvious that the Judge relied on exhibits P5 and P9 to convict the appellants. He found as a fact proved that, the 1st and 2nd appellants confessed to have killed the deceased in a joint enterprise with the 3rd appellant. Mr. Ambindwile pointed out that, the conviction was entered despite the fact that the statements were objected during trial in circumstances which called for the conduct of a trial within trial. That, the Judge invited oral submissions which were illegally made and used them to make his decision. He overruled the objections, as appearing at pages 88 and 201 of the record, and admitted them as exhibits. He contended that this was irregular making exhibits P5 and P9 illegal. He cited to us the case of Twaha Ali and Others V. Republic (Criminal Appeal No. 78 of 2004 [2006] TZCA 233 (22 December, 2006) TANZLII to support his stance. He invited the Court to find that, the exhibits were illegally received and acted upon and proceed to expunge them. As to the way forward, Mr. Ambindwile beseeched the Court to quash the conviction and set aside the sentence imposed on the 1st appellant and set him free. His reasoning is that, apart from the cautioned statement, there is no other evidence to connect the first appellant with the commission of the crime. Both Mr. Mongo and Mwamgiga associated themselves with the submission of Mr. Ambindwile on ground two. They all contended that, the nature of the objection lodged against the admission of the cautioned statements necessitated the conduct of a trial within trial, to establish if the confessions were made by the 1st and 2nd appellants, and if so, whether they were made voluntarily. We had time to peruse the record and consider the submissions made before the court on ground two of the Supplementary Memorandum of appeal. We will start with the law. The position of the law in this area is settled. We have a litany of authorities which includes; Twaha Ali and Others V. Republic (supra), Amiri Ramadhani v. The Republic (Criminal Appeal No. 228 Of 2005) [2007] TZCA 213 (20 October, 2007); TANZLII, Nyerere Nyague v. Republic, (Criminal Appeal No. 67 of 2010) [2012] TZCA 362 (19 May, 2012); TANZLII and Manje Yohana and Another vs Republic (Criminal Appeal No 147 of 2016) 2018 TZCA 547 (7 March 2018); TANZLII. In Nyerere Nyangue (supra) the position was stated lucidly as follows: "Objections to the admissibility o f confessional statements may be taken on two grounds. First, under S. 27 o f the Evidence Act that, it was not made voluntarily or not made at ail. Second, under section 169 o f the Criminal Procedure Act: that it was taken in violation o f the provisions o f the CPA, such as sections 50, 51 etc. Where objection is taken under the Evidence Act, the trial court, has to conduct a trial within trial (in a trial with assessors) or an inquiry (in a subordinate court) to determine its admissibility. There the trial court only determines whether the accused made the statement at all, or whether he made it voluntarily. As we understand it, the relevant law regarding admission o f accused's confession under this head is this: First, a confession or statement will be presumed to have been voluntarily made until objection to it is made by the defence on the ground, either that it was not voluntarily made or not made at all (See SELEMANIHASSANT v R Criminal Appeal No. 364 o f2008 (unreported) Secondly, if an accused intends to object to the admissibility o f a statement/confession, he must do so before it is admitted, and not during cross examination or during defence (See SHIHOZE SENI AND ANOTHER v R (1992) TLR. 330, JUMA KAULULE v R Criminal Appeal No. 281 o f 2006 (unreported) Thirdly, in the absence o f any objection to the admission o f the statement when the prosecution sought to have it admitted, the trial court cannot hold a trial within trial or 12 inquiry suo motu, to test its voluntariness. (See STEPHEN JASON AND ANOTHER vR Criminal Appeal No. 79 o f 1999 (unreported) Fourthly, if objection is made at the right time, the trial court must stop everything and proceed to conduct a trial within trial (in a trial o f the alleged confession before the confession is admitted in evidence (See TWAHA ALL YAND 5 OTHERS v R Criminal Appeal No. 78 o f 2004 (unreported) Fifthly, even if a confession is found to be voluntary and admitted, the trial court is still saddled with the duty o f evaluating the weight to be attached to such evidence given the circumstances o f each case (See TUWAMOI v UGANDA (1967) EA 91 STEPHEN JASON & OTHERS v R (supra). And lastly, everything being equal the best evidence in a criminal trial is a voluntary confession from the accused himself (See PAULO MADUKA AND 4 OTHERS v R Criminal Appeal No. 110 o f2007 (unreported)." One of the principles laid by these authorities is that, once a confessional statement is retracted or repudiated during admission, the court has to stop everything and move to conduct a trial within trial, to establish whether the statement was made and if so, whether it was made voluntarily. It is the ruling of court arising out of a trial within trial which can lead the statement to be admitted in evidence and not otherwise. We will move to examine the record to see the nature of the objections and what was done by the trial court during the trial. When it was time to tender the confessional statement of the 1st appellant, as an exhibit, as appearing at page 77 of the record, Mr. Frank Ngafumika, advocate, who represented the 1st appellant, objected in the following words: "My Lord, we object for the statement to be tendered in evidence because my client has never given any statement at the police station," Thereafter, the court invited the learned counsel to make submissions which ended in a ruling as appearing at pages 83 - 88 of the record. The objection was overruled, as contended by counsel for the appellants, the cautioned statement of the 1st appellant was admitted as exhibit P5. The cautioned statement of the 2nd appellant was recorded by PW7. During its admission, as appearing at page 201 of the record, Mr. Musa Mhagama, advocate, who appeared for the 2nd appellant, objected to its admission in the following words; "The accused refused to give statement to the police. After being informed o f his rights he refused to give statement" Like in the former scenario, the parties were invited to address the court on the objection raised. The trial court received submissions and made its ruling. The objection was overruled and the cautioned statement of the 2nd appellant was admitted in evidence, marked exhibit P9, as appearing at page 211 of the record. It is clear from the record that the triai court did not conduct any trial within trial despite the fact that the 1st and 2nd appellants had lodged an objection under section 27 of the Evidence Act, Cap 6 R.E.2019 alleging that they did not make the statements at ali. The objections were disposed by way of submissions instead of a triai within trial. We think, based on the authorities cited above, the procedure adopted was irregular making exhibits P5 and P9 illegally before the court. We agree with the submission of counsel for the appellants and expunge exhibits P5 and P9 from the record. The follow up question now is whether there is evidence to convict the appellants after expunging exhibits P5 and P9. This takes us to an analysis of the remaining evidence. There is no doubt that the deceased left with a customer on 16/12/2015 and could not be seen alive again. 15 His body was found in the forest on the next day, 17/12/2016 with multiple cut wounds. He was murdered by people who left with his motor cycle, exhibit P4. The motorcycle was recovered on 14/3/2016 in Mbeya, It was Identified by PW4 and PW5 to be the property of the deceased. PW1 told the trial court that the 3rd appellant who was under arrest in connection with the killing, confessed before him that he killed the deceased jointly with some other people and robbed the motorcycle which he sold at Mbeya. They moved to Mbeya, led by the 3rd appellant and managed to get the motorcycle. He prepared a certificate of seizure, exhibit P3, which was signed by people in attendance including the appellant. The 3rd appellant was identified by PW4 later to be the one who had left with the deceased on the previous day. Looking at this evidence critically, we do not see the way it can connect the 1st and 2nd appellants to the offence charged in the absence of exhibits P5 and P9. Ail what it shows is that the 3rd appellant confessed to PW1 that he acted with some other people but they were not mentioned. Even when he had mentioned them, still that could end up to be the evidence of an accomplice, which could not be used as a base of conviction without corroboration. As for the 3rd appellant, it was contended by Mr. Mwamgiga that there is no evidence to convict him. He contended that, exhibit P3 does not show that the 3rd appellant lead PW1 to the place where they recovered the motorcycle. It is PW1 who said so. He challenged the evidence of PW1 saying It needed corroboration from Mr. Kidile, the buyer or a search order. He also challenged the ID parade saying there was no indication that they arranged people of the same size. He argued that these are gaps which cast doubts in the prosecution case; they must be resolved in favour of the 3rd appellant. In reply, Mr. Mwakalinga contended that there was good evidence to connect the 3rd appellant to the offence charged. That, despite the fact that there was no eye witness, but the 3rd appellant was seen by PW4 leaving with the deceased on the previous day but he could not come back. Later on, he confessed to PW1 and moved to Mbeya where they got the motorcycle. He contended that the search was properly done followed by a certificate of seizure which was signed by all people in attendance including the appellant and Mr. Kidile. He did not find a problem with the identification parade. He contended that, it was properly arranged and conducted according to the law. He conceded that the record is silent on the description of the people who were lined up at the parade but contended that, it did not affect the 3rd appellant. He urged the Court to find that the charge was proved beyond reasonable doubts against the 3rd appellant. We had time to consider the submission made by the learned counsel and the record. We find that there was good evidence from PW4 showing that the 3rd appellant left with the deceased on 16/12/2025 but he could not be seen live again. He was found dead on the following day with multiple cut wounds which were the cause of his death. There is also good evidence that the appellant made an oral confession before PW1, leading to the recovery of the motorcycle, which was dully identified by PW4 and PW5 to be the property of the diseased. We find that the identification parade was properly done. We agree with the Senior State Attorney that the omission to show the description of people who attended the parade did not cause a failure of justice in the circumstance of this case. An oral confession leading to recovery of property can be used as a base for conviction. See the position set In Chamuriho Kirenge @ Chamuriho Julias v. The Republic (Criminal Appeal No. 597 of 2017) [2022] TZCA 98 (7 March.2022); TANZLII where it was stated as follows: "... it is the stance of the law that, a confession ieading to discovery is reliable. In the instant case, the appellant's confession led to the discovery o f the murder weapon. In John Peter Shayo and 2 others vs Republic (1998) TLR 198 quoted in Tumaini Daudi Ikera vs Republic, Criminal Appeal No. 158 o f 2009 (unreported) the Court observed as follows: "(f) Confessions that are otherwise inadmissible are allowed to be given in evidence under section 31 o f the Evidence Act 1967If, and only if, they lead to the discovery of material objects connected with the crime, the rationale being that such discovery supplies a guarantee of the truth of that portion on the confession which led to it " See also Mboje Mawe and Others v. Republic (Criminal Appeal No. 86 of 2010) 201.1 TZCA 136 (29 June 2011); TANZLII, Director of Public Prosecutions v. Fadhili Chengula (Criminal Appeal No. 565 of 2019) 2023 TZCA 17525 (24 August 2023); TANZLII and Vitalis Kambilanga v. Republic (Criminal Appeal No 681 of 2021) 2023 TZCA 161 (29 March 2023); TANZLII. In view of what we have endeavour to demonstrate above, we quash the convictions of the 1st and 2nd appellants and set aside the sentences of death imposed on them. They shall be set free forthwith, unless lawfully held on some other reasons. The appeal of the 3rd appellant is dismissed. It is ordered accordingly. DATED at IRINGA this 21st day of March, 2025. R. J. KEREFU JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 21st day of March, 2025 in the presence of the Mr. Desdery Kishiwa, holding brief for Mr. Moses Ambindwile, learned counsel for the 1st Appellant, Mr. Lazaro Hukumu, holding brief for Mr. Jally Mongo and Jessy Mwamgiga learned counsel for the 2nd and 3rd Appellants respectively and Mr. Sauli Makori, learned State Attorney for the Respondent/Republic; is hereby certified as a true copy of the original.