CRIMINAL APPEAL NO 354 OF 2023 PHILIP KIWALE ANDREA ANOTHER VERSUS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA. rCQRAM: KEREFU, 3.A., MGONYA. 3.A And MLACHA, 3.A.1 CRIMINAL APPEAL NO. 354 OF 2023 PHILIPO KIWALE @ ANDREA .1 st APPELLANT AMOS BONIFA5I MHEMA....... 2NDAPPELLANT VERSUS THE REPUBLIC RESPONDENT (Appeal from the Decision o f the High Court of Tanzania at Iringa) fMwaipopo. 3.^ dated the 15th day of December, 2022 in Criminal Sessions No. 22 of 2022 JUDGMENT OF THE COURT 12th & 25ti’ March, 2025 MLACHA. 3,A.: The appellants, Philipo Kiwale @ Andrea and Amos Bonifasi Mhema (the 1st and 2nd appellants, respectively), were arraigned of murder at the High Court of Tanzania at Iringa, in Criminal Sessions Case IMo. 22 of 2022. The particulars stated in the information alleged that, on 17th day of May, 2019, at Kihanga Village within the District and Region of Njombe, they murdered Stulda Kinyunyu (the deceased). They pleaded not guilty to the charge. That notwithstanding, in a full trial which followed, they were convicted and sentenced to the mandatory sentence of death by hanging. Discontent, they have preferred an appeal to this Court. The prosecution case is based on 6 witnesses who tendered 16 exhibits, both physical and documentary. The appellants were the sole defence witnesses and had no exhibit to tender. Briefly stated, the prosecution case can be presented as follows: The deceased left home in the evening of 17/5/2019 to Kijiweni area within the village to buy soap, leaving her daughter, Leonia Mangililwe (PW3) and other kids at home. She did not return home. PW3 told the trial court that, after noting that she is not coming, they went to sleep. She slept at the sitting room. Sometimes later, at around 03:00 hours, she saw the Ist appellant switching off the lights and passing to her mother's bedroom. She recognised him through his torch. It was also a day of moon light. She is also familiar to him as he is her uncfe. He left later moving with 2 solar batteries. As she was pregnant, she could not make any resistance. They reported the matter to their grandmother in the morning. PW3 stated further that, as they were returning home from their grandmother, they saw their mother's slippers and a soap bar on the way. They picked them. The place appeared that, some people were engaged in a fighting. They conveyed back this information to their grandmother who communicated the message to the village Chairman. An alarm was raised and people gathered. It was resolved that, people should move around to trace the deceased. Upon receipt of the information, Obedi Abraham Mnyavilwa (PW2), the Village Executive Officer, ordered the arrest of the 1st appellant. He also conveyed the information to the police. The 1st appellant was arrested by people's miiitia (rngambo) and sent to the village office. He remained there as a suspect until the arrival of the police. It was the evidence of F, 2579 P/SGT Masudi (PW6) that, the police received information of disappearance of the deceased from PW2 on 18/5/2019. They were also informed that; her solar battery and pouch were also missing, PW6 and other police officers moved to the village office. On arrival, they found the 1st appellant under arrest as a suspect. They searched the 1st appellants house and managed to get two solar batteries, sundra make (exhibit P10), which were identified by PW3 to be the property of the deceased. They prepared a certificate of seizure and seized them. They went back to the police station with the 1st appellant. On 19/5/2019 during morning hours, PW6 picked the 1st appellant from the lock up for further Interrogation. After a brief diologue, the 1st appellant confessed to have killed the deceased in the company of Amos, the 2nd appellant, by using an axe, That, they dumped her body in a well at the farm of one Daud Makalanga. PW6 and other policemen went back to the village. They arrived at the village office and met village leaders. The 1st appellant confessed again to PW2 that he had killed the deceased. He led the police and village leaders to the water well at the farm. They saw padlocks (Exhibit P14) near the well. The i st appellant said that, they broke them to get access to the well. The police seized them. The police looked down in the well and saw the dead body. They pulled it out. It was inside a fertilizer plastic bag. They opened it and the body was identified by PW3 and other people in attendance, to be the body of the deceased. The 1st appellant led the police and village leaders to the house of Amos, the 2nd appellant where they got an axe (exhibit P ll), and a black pouch (exhibit P12). The pouch had a clinic card (exhibit P13) and cash Tshs. 8,450 (exhibit P16). He also took the police to his father's farm where they got the deceased's mobile phone (Exhibit P15). They were all seized and sent to the police station. PW6 handled them to PC Dorothy who kept them until when they were brought to court. PW2 and other village leaders were with the police at all these stages. The body of the deceased was sent to Makambako hospital. It was examined on 20/5/2019 by Dr. Charles Hilali Mbota (PW1) who recorded his findings in the post mortem examination report (Exhibit PI). PW1 had the opinion that death was caused by severe brain injury leading to internal hoemorhage, caused by a heavy blunt object. The 1st appellant recorded an extra Judicial statement (Exhibit P3) before a Resident Magistrate, Hon. Jackson Thomas Banobi (PW5). The 2nd appellant recorded a cautioned statement (Exhibit P2) before G. 201 D/CPL James (PW4). Both, exhibits P2 and P3, were received in evidence without objection during the trial. PW6 tendered the certificates of seizure of the seized properties (exhibits P4, P5, P6, P7, and P8). They were ail received without objection. The appellants dissociated themselves from the commission of the offence. It was the defence of the 1st appellant that he was arrested on 17/8/2019 at 18:00 hours by people's militia who accused him of failing to respond to the alarm to trace the missing person. They took him to the village office where he was held in connection to the missing person. He was later picked by the police. He denied committing the crime. He also denied his extra judicial statement. He denied to lead the police to the place where the body of the deceased was damped. He agreed that his house was searched but denied knowledge of what was seized. He alleged that he signed the seizure certificate at the police station. The 2nd appellant denied to commit the crime. He told the trial court that, his cautioned statement was merely passed to him to fix his thumb print. He denied his cautioned statement. He denied to own the axe. He said that he was arrested by people's militia and sent to the village office for no good cause. He claimed to have taken part in the search of the deceased. In convicting the appellants, the trial Judge considered, the oral confession of the 1st appellant made to PW2 and PW4, leading to the recovery of the dead body and exhibits, the cautioned and extra judicial statements of the appellants and the evidence of PW3 who saw the 1st appellant entering the house of the deceased that night. He considered the defence of the appellants which was rejected. He could not see doubts in the prosecution case and was satisfied that there was evidence to prove the case beyond doubts. He convicted and sentenced the appellants as intimated above, hence the appeal. The appellants have a memorandum of appeal lodged on 24/4/2023 with 5 grounds and a supplementary memorandum of appeal lodged on 13/2/2025 with 4 grounds; making a total of 9 grounds of appeal. Mr. Jassey Mwamgiga, learned advocate, appeared for the 1st appellant, Mr. Edmund Mkwata, also learned advocate, appeared for the 2nd appellant, whereas the respondent Republic was represented by Mr. Tito Ambangile Mwakalinga, learned Senior State Attorney, assisted by Mses. Xaveria Makombe, learned Senior State Attorney and Elise James, learned State Attorney. On taking the floor, both Mr. Mwamgiga and Mkwata argued the appeal on ground two of the supplementary memorandum of appeal only. They abandoned the rest of the grounds. The ground upon which the appeal is based can be paraphrased to read as follows: 1. That, there was no evidence to prove the offence beyond reasonable doubts. Mr. Mwamgiga argued the ground on four limbs. One, that the 1st appellant confessed to PW6 as reflected at page 68 of the record, but his cautioned statement was not tendered in evidence. Amplifying, Mr. Mwamgiga contended that the trial court was supposed to draw an adverse inference against the prosecution on the failure to tender the cautioned statement. To buttress his stance, he cited to us the case of Swalehe Mwenya and Others V. The Republic (Criminal Appeal No. 66 of 2006) [2010] TZCA 254 (14 May, 2010; TanzLII). Two, that, the visual identification done by PW3 was poor. Mr. Mwamgiga contended that the identification of the 1st appellant appearing at page 54 of the record of appeal was based on a torch and moonlight which are poor means of identification. He added that, PW3 did not explain the intensity of the light, proximity and the size of the room. Three, that, the certificate of seizure was issued against section 38 (2) of the Criminal Procedure Act, Cap. 20 R. E 2019, (the CPA). Referring to a copy of certificate of seizure appearing at page 117 of the record, Mr. Mwamgiga contended that, there is a requirement to serve a copy of it to a Magistrate which was not complied with, an omission which makes the certificate illegal. Four, in alternative to one, two and three; that the evidence does not lead to murder but manslaughter. Referring to the cautioned statement appearing at page 107, Mr. Mwamgiga contended that, the evidence show that the appellants committed the crime while drunk, a fact which lead to a conviction of the lesser offence of manslaughter not murder. Mr. Mkwata associated himself with the submission of Mr. Mwamgiga and had nothing to add. In response, Mr. Mwakalinga, maintained that, the case against the appellants was proved beyond reasonable doubts. On failure to tender the cautioned statement of the l 5t appellant, he contended that the 1st appellant did not record any cautioned statement before PW6. He made an oral confession to PW6 which led to recovery of the dead body and properties of the deceased. He added that there is no legal requirement for an oral confession to be recorded and tendered in evidence. He distinguished the case of Swalehe Mwenya (supra) and the present appeal, saying in the former case, there was both an oral and a written confession, which is not the case here. He contended further that, an oral confession made before a person with authority, leading to recovery of property, can be used as a base of conviction. He cited to us the case of Chamriho Kirenge @ Chamriho Julius V. Republic (Criminal Appeal No 597 of 2017) [2022] TZCA 98 (7 March, 2022) to support his stance. On the issue of visual identification of the 1st appellant, the Senior State Attorney contended that, the visual identification of the 1st appellant was done properly because the witness knew him. He was her uncle as appearing at page 52 of the record and not a complete stranger. He contended further that, the conviction of the appellants was not based on visual identification of the appellant per see, PW3 just gave a hint and other steps followed leading to the arrest of the 1st appellant who confessed and took the police and village leaders to the place vyhere the dead body and the properties of the deceased were recovered. It was also based on written confessions of the appeflants. He conceded that there is an omission to fill in the date in the certificate of seizure, but the omission did not prejudice the 1st appellant, who was aware of what was going on in his house and signed in the certificate of seizure acknowledging the truth of the matter. He argued that the omission did not affect the 1st appellant anyhow. Submitting on the alternative ground, the learned Senior State Attorney contended that, reading through the 2nd appellant's cautioned statement which is the basis of this complaint, one can note that the appellants were not drunk. They were rather at the pub, passing time on a plan to kill the deceased. He cited two lines to support his stance; "tuliendelea kunywa huku Wkiwa tunamsubiria" appearing at page 107, line 8 and "tulipotoka Amosi a/ikuwa na shoka" appearing at page 112. He rejected the idea of having a manslaughter in this appeal. In rejoinder Mr. Mwamgiga reiterated his earlier position. Having perused the record and considered the arguments advanced by the (earned counsel for the parties, we will respond as follows. The complaint on the first limb is that, there is a cautioned statement of the 1st appellant recorded by PW6 which ought to have been tendered during the trial as an exhibit to corroborate the oral confessions but was not tendered. Our perusal of the record did not get an indication that PW6 recorded the cautioned statement. All what we could gather from the record is that, PW6 picked the 1st appellant from the lock up on 19/5/2019 and sent him to the investigation room for further interrogation. While in the course, the 1st appellant decided to be cooperative and confessed that he had killed the deceased in the company of the 2nd appellant. He volunteered to take PW6 to the place where they had put the dead body. PW6 and other policemen moved to the village office on their way to the place where they could be shown the dead body. While there, the 1st appellant confessed again to PW2 that he had killed the deceased. He then led the police and village leaders to the dead body and properties of the deceased. It follows that, the complaint that there was a cautioned statement which was not tendered is, with respect misconceived. Further, as correctly pointed out by the Senior State Attorney, the case of Swalehe Mweya (supra) is distinguishable to the present appeal because the facts of the two cases are different. Unlike in that case where there was a cautioned statement, there is no cautioned statement of the 1st appellant in this appeal. The complaint on the second limb is based on identification of the 1st appellant made by PW3. We agree with Mr. Mwamgiga that, the 1st appellant was seen through the light of a torch and moonlight. But we don't see this as a case of identification but recognition. The scales between the two are different. PW3 knew the 1st appellant who was his uncle. She was sleeping at the sitting room. While there, she saw her uncle passing across and entering into her mother's bedroom. He passed at a very close range, He was in possession of a torch and there was moonlight outside. There was also light from solar lights which he switched off before picking the batteries. We think that the circumstances allowed her to recognise him properly. Further, as pointed out by the learned Senior State Attorney, the conviction of the 1st appellant was not based on the evidence of PW3. Her evidence was just the starting point. The conviction was based on the 1st appellant's confession and the doctrine of recent possession, making the complaint on identification baseless, which we dismiss. Next is on the requirement to fill in the certificate of seizure, the date on which a report of the search was passed to a Magistrate. This complaint is based on the certificate of seizure appearing at page 117 of the record. The search was conducted by ASP Yesaya E, Sudi in the presence of 4 witnesses. The 1st appellant signed as witness number 3. At the bottom of the document, there is a place written, 'Duplicate passed to a magistrate o n ...... ' The date is not indicated forming the subject of the complaint. The requirement to pass a copy of the report to a magistrate is contained under section 38 (2) of the CPA which reads: "38 (2) Where an authority referred to under subsection (1) is issued, the police officer concerned shall, as soon as practicable, report the issue of the authority/ the ground on which it was issued and the resuit o f any search made under it to a magistrate " (Emphasis supplied) The authority referred to above, is the authority to conduct a search which is issued by the Police Officer In charge of the Police Station under subsection (1). The law allows him do the search personally or issue a written authority (search warrant) to any other police officer to conduct the search. The written authority is required in all searches, save for emergence situations which fall under section 42 (1) of the CPA. Now, where the Officer in charge of a Police Station has delegated his powers of search to another police officer, there is a requirement to report the issue of the authority (search warrant), the ground on which it was issued and the result of any search made under it, to a Magistrate having jurisdiction in the area of the Police Station. Once the report is sent to the Magistrate, then, the date on which it was passed to him must be indicated in the certificate of seizure. There is no endorsement of the date in the certificate of seizure in this case. The follow up question now is whether this is fatal to render the said certificate invalid. The certificate of seizure was tendered by PW6 as appearing at page 72 of the record. It was received without objection. We think, the proper forum to challenge the document was at the time of admission. It was at that time when the appellants could lodge their objection and demand reasons as to why there was a gap in the document. Raising the matter at this stage, given the background, is an afterthought. Further, this certificate is evidencing the seizure of a pouch, a clinic card and cash TZS. 8,450.00 from the house of the 1st appellant. The 1st appellant signed acknowledging that the properties were seized from his house. Like the learned Senior State Attorney, we don't see the way the 1st appellant was prejudiced by the failure to fill in the date in which the report was passed on to the Magistrate. He knew the purpose of the search and is not objecting that the properties were picked from his house. The omission to fill in the date is therefore curable, in the circumstances of this ease, under section 388 of the CPA together with the overriding objective principle is contained under section 3A of the CPA. This complaint is also dismissed. Lastly, the court is invited to find, in the alternative that, based on information contained in the cautioned statement, that, the appellants were drunk and must have killed the deceased under intoxication, not knowing what they were doing, they must therefore be found guilty of manslaughter not murder. We had time to examine the cautioned statement and the evidence as a whole. We agree with the learned Senior State Attorney that there is no indication that during trial the appellants relied on that defence. Throughout the trial, the appellants never raised the defence that they were drunk so as not to know what they were doing. We will reproduce in part, exhibit P2, as appearing at pages 105-108 to demonstrate this. It reads as follows: "Marehemu STUDIA KINYUNYU ajikuwa na mgogoro na ASIA KINYUNYU na AGNES KINYUNYU wasilime mashamba ambayo yafiachwa na wazazi wao baada ya kufariki dunia huku akitaka alime mwenyewe mashamba hayo kitendo ambacho kilipelekea kutokusalimiana na na wadogo zake hao na shemeji yake PHILIPO KIWALE ...Tuliendelea 16 kunywa pombe pale huku tukisubiri muda atakapokuwa anaondoka huyu STULDA D/O KINYUNYU tumfuate kwa nyuma Hi tumpige kama tulivyopanga tarehe 16/5/2019 kuwa lazima tumuue ... Tuliondoka tukiwa mimi mwenyewe yaani AMOS BONIFASI @ MHEMA na STULDA KINYUNYU tukapitia njia ya nyuma ya kllabu .... Baada ya kuona hawezi kunyanyuka pale, mimi nUimwambia PHILIPO KIWALE kwamba nakimbia nyumbani kuchukua shoka ili tumalizle kazi...Niliporudi nillmpa Hie shoka PHILIPO KIWALE akampiga nalo STULDA KINYUNYU sehemu ya shingoni kwa nyuma mara mbili na baada ya kuona tayari amekufa tulichukua mfuko wa sulphate rangi nyeupe ambao nilikuwa nimeuweka kwenye ba/skeli yangu aina ya Phonex na kumutngiza ndanl ya mfuko huo kisha tukampandisha kwenye balskeli tukaondoka hadi kwenye kisima... ndio tukatoa mwili wa marehemu STULDA KINYUNYU na kuutumbukiza ndani ya k/slma hlcho" Reading through the above except, we agree with the learned Senior State Attorney that there was no intoxication in this matter but a plan, well organized to murder the deceased. The pub was used just as a forum through which they could get her. The complaint based on the alternative ground is thus baseless and dismissed. In view of what we have demonstrated above, the appeal is found to be devoid of merit and dismissed. DATED at IRINGA this 24th day of March, 2025. R. 3. KEREFU JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 24th day of March, 2025 in the presence of the Mr. Herbert Ishengoma, learned State Attorney for the Respondent/Republic also holding brief for Mr. Jassey Mwamgiga and Mr. Edmund Mkwata, learned counsel for the 1st and 2nd Appellants respectively; is hereby certified as a true copy of the original.