RENATUS GAMANYWA VS THE REPUBLIC CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA (£gRAM: MUGASHA, J.A., MWAMPASHI. J. A. And NGWEMBE. 3.A.) CRIMINAL APPEAL NO.15 OF 2023 RENATUS GAMANYWA .... ...... ........ ...... APPELLANT VERSUS THE REPUBLIC...................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Bukoba) (Otaru, J) dated the 27th day of November, 2022 in Criminal Session Case No. 89 of 2020 JUDGMENT OF THE COURT 10th & 17th March, 2025 MWAMPASHI. J.A.: Renatus Gamanywa, the appellant herein, was charged before the High Court of Tanzania at Bukoba (the trial court), with the offence of murder contrary to section 196 of the Penal Code [Cap. 16 R.E. 2002; now R.E. 2022] (the Penal Code). According to the information laid by the prosecution, on unknown date of November, 2016, the appellant allegedly murdered his sister Deodatha Gamanywa (the deceased), at Mgaza Village, Katerero Ward within the District of Bukoba Rural in Kagera Region. The appellant pleaded not guilty to the charge. However, after a full trial, he was convicted as charged and was duly sentenced to suffer death by hanging hence, the instant appeal. In a bid to prove the case against the appellant, the prosecution paraded four witnesses; Hilda Gaudence (PW1), Joas Michael Rutainurwa (PW2), Joseph Rweyemamu Tegamaisho (PW3) and H.6009 D/C Muharami Omari Mbonde (PW4). It also relied on two exhibits namely; a sketch map of the scene of crime (Exhibit PI) and a post mortem examination report (Exhibit P2). The appellant was a sole witness in his defence. Briefly, the evidence led by the prosecution before the trial court was as follows; The appellant and the deceased were siblings living together at the appellant's homestead at Mgaza Village within the District of Bukoba Rural in Kagera Region. Sometimes in November, 2016 the deceased went missing. According to PW1, the Chairperson of Mgaza Village, the disappearance of the deceased was reported to her on 24.11.2016 by the appellant who alleged that the deceased had gone missing since 17.11.2016. PW1 directed the appellant to report the incident to the police and on 30.11.2016, after the appellant had reported it to the police, a village meeting was convened to discuss the disappearance of the deceased. At the meeting it was revealed by Richard, one of the appellant's neighbours, that on 16.11.2016 the deceased was heard screaming from the appellant's house. When asked for explanation, the appellant reacted by wondering how he was being asked such questions while his sister had gone missing. He eventually, decided to mute. That being the case, it was resolved that a search for the deceased be mounted beginning with the appellant's homestead. The village searching team including PW1, PW2 who was the Village Security Committee Chairperson, PW3 and Edina Fanuel, the Village Executive Officer, headed to the appellant's homestead. According to PW1, PW2 and PW3, while on the way to the appellant's house, the appellant attempted to run away but was stopped. Upon getting at the appellant's homestead, the searching team was divided into groups. While some went to search in the appellant's house, others went to his farm and to the nearby forest. In the course of the search in the appellant's farm, one of the villagers stumbled on a suspicious spot where there was a fresh dug ridge on which sweet potatoes shoots had been recently planted. The appellant and the villagers gathered at the spot and it was decided that the ridge should be dug to see what was beneath. At this point, the appellant was asked to bring a hoe but he took that opportunity to again attempt to flee. He was however, apprehended and that is when he opened up and stated that he had buried the deceased over there. The appellant's confession led PW1 to call the police. When the police officers came and upon interrogation, the appellant told the police officers that he had buried the body of the deceased over there. He even explained how the dead body was buried, that legs were tied and the body was wrapped in a mat. He also stated that on top of the dead body he put mabanzi and stones before covering the pit by soil. When the ridge was unearthed, the dead body which had decomposed but could be recognised to be of the deceased, was found. It was found being laid in the manner explained by the appellant. PW4 was one of the police officers who rushed to the scene and whose evidence was to the effect that after getting at the scene with his colleagues they found the appellant under the villagers' restraint. Upon interrogation, the appellant admitted to have buried the deceased. The deceased body which had decomposed was exhumed and the post­ mortem examination of the dead body was carried out by the doctor before being handed over to relatives for a proper burial. It was PW4's further testimony that the doctor filled the post mortem examination report and a sketch map of the scene of crime was drawn by D/C Ibrahim. PW4 was later assigned the case for investigation and at the trial he tendered in evidence the sketch map and the post-mortem examination report as exhibits PI and P2 respectively. According to the post-mortem examination report, the body had been totally decomposed to the extent that the cause of death could not be established. In his sworn defence, the appellant claimed that on 08.11.2016, the deceased who was suffering from mental illness did not return home. He then reported about the disappearance of the deceased to PW1 on 09.11.2016. He also testified that he reported the incident to the police as directed by PW1 on 10.11.2016. On 30.10.2016 the villagers led by PW1, PW2 and PW3 conducted a search at his house. Nothing was found in his house but a certain spot within his farm was suspected and he was accused of having buried the deceased over there. When the police officers came, the dead body which had been completely decomposed beyond recognition was found buried at the spot and it was handed over to relatives for a proper burial. The appellant denied to have been the one who had buried the deceased dead body. Having heard the evidence from both sides and after evaluating the evidence, the trial court found it established beyond reasonable doubt that the dead body that was exhumed from the appellant's farm was of none other than but of the deceased. The trial court also found that the appellant confessed before PW1, PW2, PW3 and PW4 that, it was him who had buried the deceased body. Further, it was found that the circumstantial evidence irresistibly pointed to the guilt of the appellant that he killed the deceased. As for the malice aforethought, the act of burying the deceased and further his conduct in delaying to report the disappearance of the deceased and his attempts to run away, were found to establish the malice aforethought. The trial court concluded by finding that the case against the appellant had been proved to the hilt and proceeded to convict and sentence the appellant in the manner we have alluded to earlier. At the hearing of the appeal, Mr. Derick Zephurine, learned advocate, who represented the appellant, having abandoned all the grounds of appeal in the substantive memorandum of appeal as well as the first ground in the supplementary memorandum of appeal, argued the appeal on the following five grounds; one, that the circumstantial evidence relied upon in convicting the appellant did not directly point to the guilt of the appellant, two, that the conviction was based on contradictory, inconsistent and incoherent evidence, three, that the defence evidence was not accorded weight, four, that the conviction was based on an oral confession which was not proved and five that, the case against the appellant was not proved to the hilt. In support of grounds 1 and 2, it was submitted by Mr. Zephurine that, the circumstantial evidence upon which the trial court based the conviction was not cogent and did not irresistibly point to the guilt of the appellant. He pointed out that the circumstantial evidence was built from the allegation that at the village meeting, one Richard claimed to have heard the deceased screaming from the appellant's house but the prosecution did not call him as a witness. In the course of his submissions. Mr. Zephurine abandoned the complaint on ground 2 regarding the prosecution evidence being contradictory and inconsistent. Mr. Zephurine submitted on ground 4 of appeal that, the trial court erred in basing the conviction on an oral confession the appellant allegedly made before PW1, PW2, PW3 and PW4. He contended that the appellant was not a free agent because the evidence on record shows that he was under the villager's restraint and that the angry villagers were armed with pangas and clubs. Citing the decisions of the Court in Sikujua Iddi v. Republic (Criminal Appeal No. 484 of 2019) [2021] TZCA 427 (27 August 2021;TanzLII) and Tabu s/o Malebeti @ Medard v. Republic (Criminal Appeal No. 115 of 2020) [2023] TZCA 17945 (12 December 2023;TanzLII), Mr. Zephurine argued that, the oral confession in question was not proved and the appellant was not a free agent when he allegedly confessed. Grounds 3 and 5 of appeal were conjointly argued by Mr. Zaphurine. He briefly argued that the trial court did not consider and accord the defence evidence the weight it deserved. It was contended that the trial court merely stated that it had considered evidence from both sides without having evaluated the defence evidence. Lastly, it was submitted by him that the case against the appellant was not proved beyond reasonable doubt as required by the law. He thus, prayed for the appeal to be allowed. The appeal was vigorously opposed by the respondent Republic which at the hearing, had the services of Ms. Ajuaye Bilishanga, learned Principal State Attorney, assisted by Ms. Chema Maswi, learned Senior State Attorney and Mr. Dickson Elias Makoro, learned State Attorney. Ms. Bilishanga responded to the grounds of appeal in their totality. She argued that the appeal is baseless because the case against the appellant was proved to the hilt. It was expounded by Ms. Bilishanga that the conviction by the trial court was based on circumstantial evidence which irresistibly pointed to the guilt of the appellant. Placing reliance on the decision of the Court in Ally Ramadhani v. Republic (Criminal Appeal No. 312 of 2020) [2024] TZCA 962 (3 October 2024;TanzLII), Ms. Bilishanga argued that the conduct of the appellant before the recovery of the deceased dead body, when, for instance, he delayed to report the disappearance of the deceased, his twice attempts to run away and the fact that his confession led to the discovery of the dead body of the deceased, circumstantially proved beyond reasonable doubt that it was the appellant who murdered the deceased. It was further submitted by Ms. Bilishanga that the appellant's oral confession he made before the four prosecution witnesses that he had buried the dead body of the deceased was reliable. She expounded that in his confession, the appellant gave details on the graphics and the manner he had buried the dead body which corresponded to what was seen when exhuming the dead body. Ms. Bilishanga went on submitting that the dead body of the deceased was buried in the appellant's farm, about 22 metres from his house and further that, the fact that he buried it singlehandedly proved that it was him who committed the murder. She also argued that in the circumstances of this case, the fact that the cause of death could not be established because the body had decomposed, is immaterial. To support this position, Ms. Bilishanga referred us to the decision of the Court in the case of Crospery Ntagalinda @ Koro v. Republic (Criminal Appeal No. 312 of 2015) [2016] TZCA 661 (22 February 2016;TanzLII). It was further insisted by her that the death was unnatural and was with malice aforethought otherwise the appellant could not have buried the dead body of the deceased singlehandedly and then report that the deceased had gone missing. Ms. Bilishanga prayed for the appeal to be dismissed. In rejoinder, it was reiterated by Mr. Zephurine that, the cause of death was not proved and the circumstantial evidence did not irresistibly point to the guilt of the appellant that it was him who committed the murder in question. He also submitted that the oral confession was not corroborated and further that great caution was required before acting on it. In view of the grounds raised in support of the appeal and the submissions made for and against the appeal, the issue for our determination is generally whether the case against the appellant, that it was him who murdered the deceased, was proved to the required standard. Beginning with ground 4 whereby the trial court is being faulted for relying on the appellant's oral confession, our starting point is section 3 (1) (a) of the Evidence Act [CAP. 6 R.E. 2022] (the Evidence Act) under which it is provided that confession may be oral, written, by conduct, and/or a combination of all of the above or some of them. It is also settled that confession need not be in writing and can be made to anybody. Further, an oral confession made before or in the presence of a reliable witness, be they civilian or not, may be sufficient to ground a conviction provided the maker was a free agent when he said the words imputed to him. See- The Director of Public Prosecutions v. Nuru Mohamed Gulamrasul [1998] T.L. R. 82, Posolo Wilson @ Mwalyego v. Republic (Criminal Appeal No. 613 of 2015) [2018] TZCA li 635 (20 February 2018;TanzLII) and Patrick Sanga v. Republic, Criminal Appeal No. 42 of 2007 (unreported). In the instant case, the relevant evidence is to the effect that, having been taken to the suspicious spot within his farm, the appellant told PW1, PW2 and PW3 that, the person they were looking for, that is, his missing sister (the deceased), had been buried over there. On PW4's arrival at the scene by his colleagues, the statement by the appellant that the deceased had been buried over there was repeated to PW4 by the appellant. It is not in dispute that the dead body of the deceased was exhumed from the spot and it was found laid graphically and in the manner the appellant had explained before the exhumation. Although there is evidence to the effect that the appellant was under the villagers' restraint because he had attempted to run away, there is no semblance of evidence suggesting that the appellant was forced, intimidated, threatened or induced when he stated that the deceased body had been buried at that spot within his farm. Besides, the confession by the appellant was made in the course of the mounted search and before any police officer had surfaced at the scene of crime. Further, the appellant did not indicate, in cross- examination of the prosecution witnesses, that he was forced in any way to confess that the deceased body had been buried over there. Thus, it is our firm finding that, the oral confession made by the appellant before PW1, PW2, PW3 and PW4 was not obtained by torture, threats, promise or inducement. The appellant was a free agent when making the oral confession in question and the trial court cannot be faulted for relying on it. Additionally, under the circumstances of this case where the appellant's oral confession led to the discovery of the deceased body, the reliability of his confession cannot be questioned. In the case of Melkiad Christopher Manumbu & Others v. Republic (Criminal Appeal No. 335 of 2015) [2019] TZCA 534 (21 May 2019;TanzLII), the Court associated itself with the decision of the High Court of Tanzania in John Peter Shayo & 2 Others v. Republic [1998] T.L.R. 198, where it was stated by the High Court that: "Confessions that are otherwise inadmissible are allowed to be given in evidence under s. 31 of the Evidence Act 1967 if, and only if, they lead to the discovery of material objects connected with the crime, the rational being that such discovery supplies a guarantee of the truth of that portion of the confession which led to it". [Emphasis added]. Further, in Mboje Mawe & Others v. Republic (Criminal Appeal No. 86 of 2010) [2011] TZCA 136 (29 June 2011;TanzLII), the Court restated the position thus: "Finally, the significance of this confession lies in the fact that he stated where the body parts were buried and eventually on arrival at his house, he dug them out himself. In essence therefore, this was a confession leading to discovery" In view of the above position of the law on confession, we find ground 4 of appeal baseless. The trial court did not err in acting on the oral confession the appellant made before PW1, PW2, PW3 and PW4, the confession that led to the discovery of the dead body of the deceased. Ground 4 is thus, accordingly dismissed. Let us now turn to ground 1 in regard to the complaint that the circumstantial evidence on which the trial court based the conviction did not irresistibly point to the guilt of the appellant. Admittedly, the case against the appellant that, it was him who committed the murder of the deceased was not based on direct evidence but circumstantial. No witness saw the appellant killing the deceased. The law is however, settled that a conviction can solely be based on circumstantial evidence provided such evidence is watertight, unerringly and conclusively pointing to no one else but the accused person. In the case of Mohamed Seleman Kidari @ Ndwata v. Republic (Criminal Appeal No. 82 of 2022) [2024] TZCA 137 (23 February 2024;TanzLII), the Court stated that: "Facts relevant in a conviction based on circumstantial evidence must not only be exceedingly compelling, but also, they must be adding up with mathematical precision permitting not a single chance or error, leading to only one conceivable theorem; the guilt of the accused person". For the circumstantial evidence to be relied upon, four factors must be satisfied as it was stated by the Court in the case of Bahati Makeja v. Republic (Criminal Appeal No. 118 of 2006) [2011] TZCA 31 (28 February 2011;TanzLII), thus: 1. The circumstances from which an inference o f guilt is sought to be drawn, must be cogently and firmly established beyond reasonable doubt. 2. Those circumstances should be of a definite or conclusive tendency unerringly pointing towards the guilt of the accused. 3. The circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and no one else and 4. The circumstantial evidence in order to sustain a conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and should be inconsistent with his innocence. See also Zakaria Jackson Magayo v. Republic (Criminal Appeal No. 411 of 2018) [2021] TZCA 207 (19 May 2021;TanzLII)/ Mathias Bundala v. Republic [2007] T.L.R. 53, Hamida Mussa v. Republic [1993] T.L.R. 123 and Safari Anthony @ Mtelemko & Another v. Republic (Criminal Appeal No. 404 of 2021) [2023] TZCA 17768 (23 October 2023;TanzLII). In the instant case, the circumstantial evidence upon which the trial court relied in convicting the appellant was built from the following facts; One, the appellant was the one living with the deceased and while it was his contention that the deceased had disappeared since 17.11.2016, he did not report about the disappearance of the deceased to any one until on 24.11.2016 when he reported to PW1, two, at the village meeting, when the appellant was asked to explain about the alleged screams of the deceased that one of the villagers claimed to had heard coming from the appellant's house, the appellant refused to give explanation and decided to mute, three, when the village searching team was heading to the appellant's homestead and again when the spot where the deceased body was buried had been located, the appellant attempted to run away, four, and most importantly, the appellant confessed that the dead body of the deceased was buried at that spot within his farm and the dead body was really found and exhumed at the spot. He thus, led to the discovery of the deceased dead body. The above singled out facts forming part of the chain of the circumstantial evidence upon which the conviction was based, were not seriously contravened by the appellant. Having subjected the above circumstances to a close and critical scrutiny, we find that the circumstances were cogently established and irresistibly pointed to the guilt of the appellant. We agree with Ms. Bilishanga that all the ingredients of the offence of murder were circumstantially proved beyond any reasonable doubt. The circumstances are not only incompatible with the appellant's innocence but they are also incapable of any other explanation than the guilt of the appellant. As we have alluded to earlier, the appellant's delay in reporting the disappearance of the deceased, his un-corporative behaviour at the village meeting, his attempts to run away and the fact that the appellant's confession led to the discovery of the deceased dead body which was buried within the appellant's farm, leave no reasonable doubt that it was the appellant who killed the deceased. Malice aforethought can be inferred from the appellant's act of burying the deceased singlehandedly and from the fact that the appellant tried to conceal the death of the deceased by burying the deceased body and by reporting to PW1 that the deceased had gone missing. The circumstances also show that the deceased death was unnatural because if that was not the case, the appellant had no reason to conceal the death by burying the deceased singlehandedly. Further, the complaint that the cause of death was not established is, as rightly argued by Ms. Bilishanga, immaterial. As the Court stated in the case of Mathias Bundala (supra) where the cause of the death was not established, it is not the requirement of the law that the cause of death must be established in every murder case. In that case, the Court stated that it is established law that homicide can be satisfactorily proved without first establishing the cause of death. It is also the practice that death may be proved by circumstantial evidence even without the production of the body of the alleged dead person. See - Leonard Mpoma v. Republic [1978] T.L.R. 58. In view of the above discussion, ground 1 fails and it is hereby accordingly dismissed. Ground 3 of appeal that, the defence evidence was not accorded the weight it deserved by the trial court should not detain us. The record shows that the appellant's defence was evaluated, considered and given the weight it deserved. The trial court, rightly to our view, explained and gave reasons why the defence evidence was to be accorded no weight. At pages 88 and 89 of the record of appeal, it was observed by the trial court that: "I have tried to took at the contradictions that the defence has pointed out, one of them is based on the decision to search the accused's shamba. According to PW1 and PW2, each has a different reasoning however they are all in agreement that the decision resulted from the village meeting....Further, I don't think how the decision was reached is material to the fact in issue. ...the testimony of the accused was evasive and shaky such that I found myself unable to believe what he testified about. As suchf the evidence of the prosecution side remained unshaken [Emphasis added] As demonstrated above, the defence evidence had no such evidential weight and it did not shake the strong prosecution evidence which was to the effect that it was the appellant who killed and buried the deceased singlehandedly within his farm. That being the case, gound 3 is thus, baseless and it is also dismissed. Finally, is ground 5 that the case against the appellant was not proved beyond reasonable doubt. Picking from our findings and observations on the rest of the grounds, it goes without saying that ground 5 is also baseless. As we have amply pointed out, the circumstantial evidence to the effect that the appellant delayed in reporting the disappearance of the deceased, that he attempted to run away and his confession that led to the discovery of the deceased body, irresistibly pointed to the guilt of the appellant. The above facts are incapable of any other explanation than that of the appellant's guilt. The circumstantial evidence proved beyond any reasonable doubt that the deceased was murdered and that the murderer was no one else but the appellant. For the above given reasons, the appeal is devoid of merit and it is accordingly dismissed in its entirety. DATED at BUKOBA this 15th day of March, 2025. S. E. A. MUGASHA JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL The Judgment delivered this 17th day of March, 2025 in presence Mr. Scarius Bukagile, learned counsel for the Appellant who holding brief for Mr. Derick Zepharine and Mr. Dickson Makoro, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. C. m. DEPUTY REGISTRAR COURT OF APPEAL