Mwinga Kerambo Mwinga Vs Republic Criminal Appeal No

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA fCORAM: JUMA, C.J., LEVIRA, J.A. And MASOUDJ.A.) CRIMINAL APPEAL NO. 289 OF 2022 MWING'A KERAMBO MWING'A........................................................ APPELLANT VERSUS THE REPUBLIC............................................................................RESPONDENT (Appeal from the Judgment of the Resident Magistrate's Court of Musoma) (Hon. Moshi, PRM- Ext-Jurisdiction) dated 25th day of May, 2022 in Criminal Sessions No. 13 of 2021 JUDGMENT OF THE COURT 13th & 17* March, 2025 JUMA, C.J.: The appellant, Mwing'a Kerambo Mwing'a, was in the Resident Magistrate's Court of Musoma (extended jurisdiction) charged with murder contrary to sections 196 and 197 of the Pena! Code, Cap 16 of the Revised Edition, 2019. The prosecution alleged that he murdered Bhoke d/o Muhere, who we shall refer to as "the deceased." The deceased's murder took place on 19 October 2019 at Komarera Village within Tarime District, Mara Region. Hon. F.L. Moshi, the Principal Resident Magistrate tried the case on extended jurisdiction. i The brief background facts of the case leading up to this appeal are that, the deceased was the biological mother of both the appellant and Mwita Kerambo Mwing'a (PW2). The deceased was also Chacha Nyamhanga @ Marwa (PWl)'s lover. PW2 testified that around 20:00 hrs on 19 October 2019, he was at Genkuru Centre watching television when one Matiko Rhioba called him by mobile phone, urging him to immediately contact Chacha Nyamhanga (PW1), who had information to the effect that the appellant was killing their mother at home. PW2 hired a motorcycle and rushed to see his mother. According to PW2, he found neighbours wailing loudly, telling him, "Your brother killed your mother." Inside the kitchen, PW2 saw his mother lying down with faeces (stool) oozing from her body as he steadied to take her to the hospital. PW2 stated that his brother, the appellant, was holding a bush knife. PW2 informed Chacha Gitutu (the hamlet chairman) and Nyamaganya Marwa (village chairman), who assured him they had already reported the incident to the police. PW1 recounted his love affair with the deceased that began in 2013. In his testimony, PW1 pieced together the chain of events on 19 October 2019, the day the deceased died in the kitchen of the house they were sharing. PW1 testified that around 19:00 hrs, he went out for a walk, and when he returned, the deceased opened the door and warned him not to venture into the kitchen because the appellant had promised to kill someone that day. Instead, she went to the kitchen, which was detached from their main house, to cook ugafi(stiff porridge) and promised to bring food to the main house. Within the same deceased's compound, the appellant built his own separate house. It was PWl's evidence that while the deceased was in the outside kitchen cooking, he heard the voice of the appellant reiterating his promise to kill someone. PW1 heard the deceased screaming and sounds of tightening of her throat. According to PW1, he rushed to a neighbour, Mwita Machahe, where he asked one Matiko Rioba to call PW2. F5564 Detective Corporal Hussein (PW4) and fellow officers were on police night patrol around the Nyamwaga area when they received news of the murder. When PW4 and the patrol team arrived at the crime scene, they met the village chairman and inspected the kitchen area. The deceased body lay on the floor, and her neck had marks suggesting prior tightening of the neck. According to PW4, the deceased's body smelt of faeces (stool). PW4 took the deceased's body to the hospital. Mohamed D. Mohamed (PW5) was a clinical officer based at Tarime Rural Hospital at Nyamwaga when, on 20 October 2019, the police officer 3 asked him to visit the scene of a murder at Komolela to determine the cause of the deceased's death. PW5 observed around the deceased's neck, a mark suggesting the killer strangulated the deceased, leading to her failure to breathe, which forced stool from her bowels. According to the post-mortem examination report (exhibit P2), which PW5 tendered, the cause of the deceased's death was a complete airway obstruction (blocking air into and out of the lungs), causing respiratory distress and death. In his defence, the appellant denied any involvement in the death of his mother, pointing out that at the date and hour of the murder, he was not at the crime scene. The appellant urged the prosecution to ask instead PW1, who and the deceased lived together for a long time. The appellant insisted that while he had a land dispute against his brother PW2 because of unfair division of the land, he did not have any prior quarrels with his mother, the deceased. In his judgment, Hon. F.L. Moshi, the trial Principal Resident Magistrate (on extended jurisdiction), found that while there were no eyewitnesses to the deceased's murder, the appellant was the last person to be with the deceased. He relied on the evidence of PW1 to find that it was the appellant who caused the death of his mother with malice aforethought. After convicting the appellant for murder, he sentenced him to death by hanging. The appellant was aggrieved and filed this appeal. At the hearing of this appeal, Mr. Leonard Elias Magwayega, learned advocate, appeared for the appellant, while Ms. Shoshe Naiman, learned Senior State Attorney, and Mr. Charles Kagirwa, learned Senior State Attorney, appeared for the respondent Republic. Mr. Leonard Elias Magwayega abandoned the grounds in the memorandum of appeal, which the appellant filed on 14 July 2022. Instead, he relied on five grounds of appeal in the Supplementary Memorandum of Appeal he filed on 3 March 2025. Paraphrased, the first ground of appeal contends that the prosecution failed to prove its case against the appellant beyond reasonable doubt. The second ground faulted the trial court for relying on the evidence of PW1. The third ground of appeal faults the trial court for relying on unreliable evidence of Corporal Nicolous (PW3). The appellant asserted that the admission of the sketch map of the crime scene (exhibit PI), which PW3 drew, lacks evidential weight because it did not comply with the requirements of sections 246(1), (2), section 263, and section 289(1)(2) and (3) of the CPA. The fourth ground faults how the trial court relied on prosecution witnesses who lacked credibility. The fifth ground of appeal blames the trial court for failing to censure the prosecution for failing to call witnesses, the learned advocate considered material witnesses. Mr. Magwayega began with the second ground, questioning the credibility of the evidence of PW1 for suggesting he saw the appellant killing the deceased, which he did not. The learned advocate revisited the record of PWl's evidence, which shows the extent of his being an untrustworthy witness. He wondered why the trial Principal Resident Magistrate (extended jurisdiction) could believe and base the appellant's conviction on PWl's evidence. He referred to PWl's evidence on pages 19 and 20 of the appeal record where PW1, in one paragraph, said he left home at 19:00 hrs, but that same 19:00 hrs, he arrived home, and the deceased opened the door to let him in. The learned advocate submitted that PW1 could not be at two different places at 19:00 hrs. Mr. Magwayega referred us to the testimony of PW1 on page 20 of the record of appeal, where PW1 testifies like an eye-witness, whereas he was not an eye witness: "Accused moved from his house and he went in the kitchen where Bhoke Muhere was cooking/1The learned advocate submitted that it was implausible for PW1 while inside the main house, to see the appellant's movements in a different house to the kitchen. He also doubted PWl's truthfulness when he claimed that from the house he was in, PW1 could hear the appellant saying he would kill someone that day. The learned advocate questioned PWl's credibility for testifying that he heard the deceased's screams as the noose was tightening around her neck. Mr. Magwayega also referred to page 21 of the record of appeal, where PW1 admitted it was nighttime when the deceased died, and wondered how he could see what was happening in the dark without explaining the source of the lights. The learned advocate added that it was implausible for PW1 to see or hear what was happening in the kitchen since, on page 22 of the record of appeal, he admitted that the house he was in had a small window and ten feet separated the house and the kitchen. The learned advocate faulted the trial Principal Resident Magistrate for failing to see doubts in PWl's evidence and was mistaken to accept the appellant's claim that he was the last person to be with the deceased. In the fourth ground of appeal, Mr. Magwayega also questioned the credibility of PW2, who testified how, after receiving a call from one Matiko Rhioba, he rushed to the deceased's house, where he saw the lifeless body of his mother. The learned advocate questions the credibility of PW2's evidence in trying to incriminate the appellant that he found the appellant holding a machete. That, when PW2 asked why the appellant had killed their mother, the appellant was more interested in the arrangement for the burial than offering explanations. Mr. Magwayega argued that PW2's evidence adds no substance to the prosecution's case. Regarding the third ground, Mr. Magwayega complains that G8319 CpI Nicolous (PW3) illegally testified as a prosecution witness and tendered a sketch map of the crime scene (exhibit P-l). He explained that PW3 is not among the names of the witnesses who the prosecution listed during the committal proceedings on 30 June 2021. The learned advocate submitted that because the prosecution did not list PW3 as a prosecution witness at committal proceedings, PW3 could lawfully testify if the prosecution brought him as an additional witness by complying with section 289 of the Criminal Procedure Act, Cap 20 (the CPA). Section 289 (1) of the CPA requires the prosecution to give the accused person a reasonable written notice or to his advocate of the prosecution's intention to call an additional witness. As long as the prosecution did not give any such written notice to allow PW3 to testify, Mr. Magwayega urged us to expunge not only PW3's evidence but also the sketch map (exhibit P-l), which he tendered as evidence. Concerning the fifth ground of appeal, Mr. Magwayega blamed the prosecution for failing to present crucial witnesses, including the deceased's neighbours, who PW2 mentioned in his evidence. The neighbours included Mwita Machahe, Matiko Rioba, Mwita Nyangohi, 8 Marwa Chacha, and Ghati Marwa Chacha. The learned advocate likened the failure to bring these witnesses to an attempt to conceal the truth, thereby creating doubt in the prosecution's case. Mr. Magwayega concluded by submitting that the prosecution was mistaken in relying on the evidence of PW1, who lacked credibility. He urged us to allow the appeal and set the appellant free. For her part, the learned Senior State attorney, Ms. Naiman, supported the appeal. She faulted the identification evidence of PW1 as weak. Ms. Naiman faulted PWl's testimony, for failing to elaborate on how he managed to identify the appellant who was in a different room at night. The learned Senior State Attorney also pushed back PWl's claim of recognizing the appellant's voice. Ms. Naiman wondered how sure PW1 recognized the appellant's voice, not someone else's. Ms. Naiman further conceded the third ground of appeal to the effect that PW3 was not amongst the prosecution listed during the committal proceedings, and the prosecution did not comply with section 289 of the CPA to allow PW3 to testify as an additional witness. Apart from expunging the evidence of PW3, the learned Senior State Attorney urged us to expunge the sketch map of the crime scene (exhibit PI), which, although it appears in the list of exhibits for purposes of trial, the prosecution did not read its contents. Like Mr. Magwayega, Ms. Naiman regarded the credibility of PW1 and PW2 to be highly suspect. The learned Senior State Attorney mused that the prosecution probably needed the testimonies of the deceased's neighbours, PW2 mentioned, which would have filled the credibility gap left by PW1 and PW2. She added that witnesses who were first at the crime scene should also have testified. Finally, Ms. Naiman agreed with the learned advocate for the appellant that the shortcomings in the identification evidence created doubts in the prosecution case. From their submissions, Mr. Magwayega and Ms. Naiman agree that it is unsafe, on account of issues of identification evidence and credibility of PW1 and PW2, to rely on the evidence of PW1 to sustain the appellant's conviction for the murder of the deceased. With due respect, Mr. Magwayega and Ms. Naiman are correct in questioning the probative value of PWl's evidence. We will demonstrate why. For purposes of this appeal, PW1 testified that he was inside the deceased's main house when he saw the appellant walking to the deceased's kitchen, where the deceased met her unlawful death. Mr. Magwayega submitted that from the layout of the main house and the outer kitchen, PW1 claimed to have had the opportunity to see or hear 10 the events about which he testified as PW1. PWl's testimony appeared like one of an eye-witness within an ear-shot; on page 20 of the record, he recounts: "Accused moved from his house and went into the kitchen where Bhoke Muhere was cooking. I heard a roar (kishindo); the houses are very dose. I was inside and heard Mwing'a saying, 'Leo iazima nitaua mtu. ' I heard Bhoke screaming as if her throat was tightening. I went to the neighbour, Mwita Machahe." Nowhere in the trial court's judgment does the Principal Resident Magistrate warn himself about the dangers of relying on the visual identification evidence of PW1 without eliminating all possibilities of mistaken identity. The case of Waziri Amani v Republic (1980) TLR 250 has warned against rushing to convict based on evidence of visual identification, which is the weakest kind and most unreliable evidence. No court should act on evidence of visual identification before removing all possibilities of mistaken identity, and the court must be fully satisfied that the visual identification evidence is watertight. The trial Principal Resident Magistrate did not warn himself when he unquestionably believed the visual and voice identification evidence of PW1, who, on page 107 of the record of appeal, he said: '7 am inclined to conclude that looking at the words uttered by the accused \Leo lazima nitaua mtu' as per evidence on record, confrontation between accused and the deceased where the deceased was heard screaming..." There is nowhere where the trial court subjects the visual and voice identification evidence of PW1 to the questions which the case of Waziri Amani v Republic (supra) requires the courts to ask: The time PW1 kept the appellant under observation; the distance at which PW1 observed the appellant; the conditions in which such observation occurred taking into account it was night-time, and there is nothing to show the conditions of lighting where PW1 could see the appellant going to the kitchen where the deceased was cooking. Without addressing and answering these questions, unlike the trial court, we cannot rely on the visual and voice identification evidence of PW1. In Stuart Erasto Yakobo V. R., CRIMINAL APPEAL NO. 202 OF 2004 (unreported), the Court restated that the evidence of visual identification should only be relied upon when all possibilities of mistaken identity are eliminated and the Court is satisfied that the evidence before it is watertight. The principles to be considered were enunciated by this Court in Waziri Amani v Republic (1980) TLR 250 on page 252. Similarly, in Yusuph Sayi 12 & Others V. R., CRIMINAL APPEAL NO. 589 OF 2017 (unreported), citing our decisions in Nuhu Selemani v. Republic [1984] TLR 93, we reiterated that we know voice recognition is the most unreliable. Accordingly, we allow the appeal, quash the appellant's conviction for murder, and set aside his sentence of death by hanging. We order the appellant's immediate release from prison unless he is otherwise lawfully held. DATED at MUSOMA this 15th day of March, 2025. I. H. JUMA CHIEF JUSTICE M. C. LEVIRA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL The Judgment delivered this 17thday 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