Ernest Nyororo and 9 Others 06

Page 1 of 45 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB REGISTRY AT GEITA CRIMINAL SESSIONS CASE NO. 25833 OF 2024 REPUBLIC VS 1. ERNEST S/O NDUTA NYORORO@HATARI 2. ZANZIBAR S/O MADEGELEKI 3. LUCAS S/O ZANZIBAR MADEGELEKI 4. LUSHINGI S/O MADEGELEKI 5. KESI S/O MADEGELEKI 6. SIMON S/O MADEGELEKI @BUDURU 7. KINYONGA S/O MADEGELEKI 8. JUMANNE S/O JUMA MAKARANGA 9. TULO S/O SWAKALA KISASEMBE 10. MPINA S/O MADEGELEKI @KAGUGU JUDGMENT Date of last order: 29/11/2024 Date of Judgment: 06/01/2025 MWAKAPEJE, J.: The accused persons Ernest Nduta Nyororo @Hatari, Zanzibar Madegeleki, Lucas Zanzibar Madegeleki, Lushingi Madegeleki, Kesi Madegeleki, Simon Madegeleki @Buduru, Kinyonga Madegeleki, Page 2 of 45 Jumanne Juma Makaranga, Tulo Swakala Kisasembe and Mpina Madegeleki @Kagugu are all charged with the offence of murder contrary to sections 196 and 197 of the Penal Code, Cap 16 R.E. 2022. The accused persons are alleged to have murdered Japhet Lusangija Nyororo and Winfrida Kabwata on 02/01/2024 at Ihanga Village in Chato District of Geita Region. Briefly, the accused, predominantly members of the Nyororo clan, stand charged with conspiring to commit the murders of Japhet Lusangija Nyororo and his wife, Winfrida Kabwata, allegedly motivated by a longstanding dispute over a 400-acre estate. According to the prosecution, the land in question was at the centre of inheritance conflicts, with Japhet Lusangija, acting as the estate's administrator, accused of selling portions of the land without the consent of other family members. This act purportedly incited resentment among certain relatives, who sought to reclaim control of the said land. The prosecution posits that these grievances culminated in a calculated plan to eliminate Japhet, the administrator, to pave the way for the reallocation of the estate and its management. However, in the execution of the said plan, his wife was also killed. Page 3 of 45 All ten accused persons categorically denied any involvement in the murders or related conspiracies. They assert their innocence, disavowing any participation in meetings, fundraising efforts, or planning activities linked to the alleged crimes. Some among the accused claim to be unaware of the land dispute, while others insist that no familial discord existed regarding the estate. To support its case, the prosecution has presented 18 witnesses and introduced four exhibits as evidence. During the hearing, Messrs Godfrey Odupoy and Robert Neophitus, learned State Attorneys, represented the Republic, while the 1st accused was represented by Messrs Renatus Malecha and Costantine Ramadhani and the 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th and 10th accused persons were represented by Messrs Shija Jeremia, Laurent Bugoti, Yesse Lubunda, Bartholomeo Msiyangi, Eliaman Ayoub, Ms Elizabeth Msechu, Ms Martha Nicholaus, Messrs Erick Lutehanga and Emmanuel Marandi, all learned advocates, respectively. The testimonies of prosecution witnesses under oath went as follows: PW1, Anastasia Japhet Lusangija, testified that on the night of 02/01/2024, while at home with her mother, she heard a commotion outside and observed five armed men attacking her father. She locked herself inside her house but later found her parents killed in separate rooms. PW1 raised the Page 4 of 45 alarm, and police arrived to take preliminary statements and transport the bodies to the mortuary. She noted her father's prior land disputes with her uncle Ernest (DW1) but admitted under cross-examination that she could not identify the assailants or directly link the murders to the dispute. PW2, Nanyige Shija, an 80-year-old traditional healer from Kangabuka Village, testified that on 03/01/2024, two individuals confessed to her to have killed a man and a woman over a land dispute and sought her help with cleansing rituals. Although initially refused, she performed the rituals when they returned with six others. PW2 claimed she did not identify the individuals due to poor eyesight and nighttime conditions. Under cross- examination, she confirmed performing the rituals for payment, acknowledging that such practices could inadvertently shield criminals. PW3, Mathayo James, testified that on 03/01/2024, he was approached by a man at the bus stop, later identified as Hatari (the 1st accused (DW1), seeking his mother, a traditional healer. He directed DW1 to her and left for a funeral. Later, police summoned him, and he learned that visitors had sought his mother's assistance in connection with a murder case. PW3 noted that his mother, who suffers from memory loss, performed rituals for business purposes but initially refused to assist the visitors at Page 5 of 45 night, asking them to return during the day. Under cross-examination, he denied prior knowledge of DW1 and clarified that he left before any rituals occurred. PW4, Kulwa Simon, testified that on 03/01/2024, he visited his grandmother, PW2, to collect puddy seeds. After unsuccessfully searching for the seeds from where PW2 had kept, they were joined by PW3 and DW1, who arrived in a white car. He further stated that PW3 and DW1 took PW2 away and later returned her to where PW4 was. On 04/01/2024, PW4 saw two unfamiliar vehicles leaving PW2's house. PW4 later identified DW1 as one of the individuals involved, but he could not confirm the occupants of the vehicles or the details of the alleged crime. In cross-examination, PW4 clarified that while he suspected DW1's involvement in the murder, he could not identify the vehicles' registration numbers. PW5, Lista Gerald Kigali, testified that on 02/01/2024 at approximately 23:00 hours, he received a call informing him of an attack on Japhet Nyororo and his wife, Winfrida Kabwata, with machetes. PW5 reported the incident to the police and visited the crime scene the following day. He shared prior knowledge of a dispute within the Nyororo family over leasing clan farms, which had caused tensions between the deceased and other family Page 6 of 45 members. However, PW5 stated that he had no further knowledge of internal family issues and did not have suspicions regarding who was responsible for the deaths of Japhet and his wife. In cross-examination, PW5 clarified that the disputed land was not involved in the sale and confirmed that the sale agreement was kept at his office. PW6, Pili Sadala, testified that on 14/12/2023, she sent TZS 140,000 to her in-law, DW10 (Mpina Kagugu), as part of an agreed payment of TZS 200,000 for planting seeds on her farm in Kisebo village in Sengerema, with the balance of TZS 60,000 paid upon job completion on 05/01/2024. On 09/01/2024, she was arrested by police, who suspected the money paid to DW10 might be linked to a murder case involving a man and a woman. PW6 clarified that her financial dealings with DW10 were strictly for farming, and she had no knowledge of his involvement in any criminal activity. Under cross-examination, she confirmed DW10 had worked on her farm previously, she always paid him for services, and the money in question was solely for agricultural purposes. PW7, Dr Philimon Nioghomi Mtunya, testified that on 03/01/2024, he conducted autopsies on two bodies brought to the Bwanga Health Centre. He concluded that Japhet Nyororo's death resulted from severe injuries Page 7 of 45 caused by multiple deep cuts to the neck, spine, and head, particularly over the right eye, leading to severe bleeding and traumatic head injury. Winfrida Kabwata's cause of death was a significant head injury, with a large wound on the left side of her head extending to the right, exposing brain tissue alongside hand wounds that contributed to fatal brain damage. PW7 tendered the post-mortem reports, which were admitted as exhibits PE1 and PE2. During cross-examination, he confirmed holding a valid medical license (MCT 1713) and his authority to perform post-mortems. PW8, A/INSP Seuri Mollel, testified that on 28/08/2024, he and Corporal Faustine travelled to Mpanda, Katavi, to arrest DW10. On 29/08/2024, they apprehended DW10 at the residence of Marando Kasanga and informed him of his arrest in connection with the murders of Japhet Nyororo and Winfrida Kabwata. The following day, 30/08/2024, they travelled to Chato, arriving on 31/08/2024, where DW10 was handed over to the prosecution unit. During cross-examination, PW8 explained that he did not record DW10's caution statement in Mpanda due to the absence of the case file and police officers familiar with the case. PW9, ASP Daniel Denis Mkoma, testified that on 02/01/2024, he investigated the killings in Ihanga village, where the victims' bodies bore Page 8 of 45 deep-cut wounds from sharp objects. His inquiries led to the arrest of multiple suspects. On 05/01/2024, he arrested DW1, who implicated other suspects, including DW10. According to PW9, the investigation revealed that DW1 financed the murders to gain control of disputed land. Further investigations resulted in the arrests of DW2 and DW4 on 09/01/2024, which confirmed DW1's involvement. Mobile communication logs obtained through the DCI placed the suspects near the crime scene and supported claims of DW1's financial role in planning the murders. PW9 also coordinated DW10's arrest after he fled to Mpanda. During cross-examination, PW9 denied allegations of police involvement in the custody death of another suspect, Elias Lusangija Nyororo. PW10, D/SGT Masinde, testified about his investigation into this case, linking it to a land dispute. He interrogated DW1, who implicated others, including DW10 and the deceased Elias Lusangija Nyororo, in the plot. He further stated that mobile data confirmed key contacts between DW1 and DW3 on the night of the murder and placed DW10 at the crime scene. He further stated that DW3, who was arrested on 22/01/2024, admitted acting as an intermediary, and the data further revealed that some accused sought a witch doctor's cleansing after the murders. PW10 stated that all accused Page 9 of 45 were involved in planning, with DW10 and DW5 as the direct perpetrators. During cross-examination, he upheld the reliability of the evidence and clarified the familial dynamics complicating the case. PW11, Faraji Byakuzane Kalungula, testified that he is related to the Nyororo family through marriage to Tereza Lusangija Nyororo, Japhet Nyororo's sister. On 02/01/2024, at around 23:00 hrs, he was informed by his brother-in-law, Salehe Lusangija Nyororo, about the murders of Japhet and his wife. PW11 noted that DW1 was absent from the funeral and related family gatherings, which he found unusual given DW1's regular attendance at family events, including funerals. Despite this, he described relations within the Nyororo family, including between Japhet and DW1, as peaceful, with no knowledge of any land-related disputes. Under cross-examination, PW11 clarified that he did not imply DW1's absence at the funeral suggested his involvement in the murders and admitted he had not inquired about the reasons for DW1's absence. PW12, D/CPL Agnes Izengo Lushona, testified that she recorded the cautioned statement of Tulo Swakala Kisasembe (DW9) on 21/04/2024. She stated further that during the interrogation, the accused admitted to have involved in the murders of Japhet Nyororo and Winifrida Kabwata. PW12 Page 10 of 45 documented the DW9 statement, which was presented in Court and admitted as Exhibit PE3. During cross-examination, PW12 affirmed that she followed proper procedures and denied any misconduct or omissions in recording the statement. PW13, Petro Marando, testified that on 29/08/2024, he was called by a neighbour, Mama Hadija, and found police officers who showed him a photograph of Aron, a man living with his family since February 2024. He identified Aron as a family friend and led the officers to their home, where Aron was arrested. The officers revealed Aron's real name as Mpina Madegeleki Kagugu and informed him he was wanted for murder. In Court, PW13 identified Aron as the 10th accused (DW10). During cross-examination, he confirmed that the police officers introduced themselves but couldn't recall their names. He also stated that Aron had introduced himself by that name and that he had no knowledge of his background, adding that his parents were away during the arrest. PW14, D/CPL Joan, testified that on 31/08/2024, she interrogated Mpina Madegeleki Kagugu (DW10), who confessed to participating in the murders of Japhet Lusangija and his wife, Winfrida Kabwata, on 02/01/2024. The accused revealed that him and his brothers, Kesi Madegeleke (DW5), Page 11 of 45 Juma Makaranga (DW8), Elias Nduta (deceased), and Ernest Nduta (DW1), planned and carried out the murders using machetes. She further stated that DW10 told her that the motive behind it was a family land dispute over 200 acres of inherited land, with Japhet selling the land and distributing the proceeds, which dissatisfied the relatives. During cross-examination, PW14 confirmed the land had been sold before the murders but lacked details about the sale, its price, or the buyers. She also had no knowledge of other potential disputes or the crime scene, as she was not present during the incident and could only report what the accused had told her. PW15, Yahya Yassin, a Resident Magistrate, testified about recording extrajudicial statements from two accused individuals, Zanzibar Madegeleki and Lucas Zanzibar Madegeleki, regarding the murders of Japhet Lusangija and Winfrida Kabwata. On 10/01/2024, PW15 recorded Zanzibar Madegeleki's (DW2) statement, in which he confessed to participating in the murders, driven by a family land dispute. On 23/01/2024, he recorded Lucas Zanzibar's (DW3) statement, in which DW3 also confessed, detailing a plan orchestrated by Ernest Nyororo and the involvement of other relatives. During cross-examination, PW15 affirmed that the statements were given freely, denying any coercion or inaccuracies. He clarified that while several Page 12 of 45 individuals were involved in the planning, he did not identify the actual killers and disagreed with claims that the land dispute had been fully resolved. PW16, Winfrida Emmanuel Mrosso, a Resident Magistrate, testified about recording extrajudicial statements from two accused persons, Tulo Swakala (DW9) and Mpina Madegeleki (DW10), about the murders of Japhet Lusangija and his wife, WInifrida Kabwata, and they confessed to have participated in the said murders. On 22/04/2024, she recorded Tulo's confession after ensuring he understood his rights and was not coerced. Tulo explained his involvement, stating he was initially reluctant but was coerced by his uncle, Kessy Madegeleki, to join a clan-led plot to kill Japhet over a land dispute. On 02/09/2024, PW16 recorded DW10's confession, where he admitted to planning and participating in the murders, detailing how others, including DW9, were involved and that he had been paid for his participation. During cross-examination, PW16 confirmed she had not tendered the statements in Court, emphasising she had only relayed the confessions. She also clarified inconsistencies regarding the land dispute, other suspects' involvement, and communication methods among the perpetrators. PW17, G.9744 D/CPL Elikana, a police officer, testified about his involvement in the investigation of the murders of Japhet Lusangija Nyororo Page 13 of 45 and Winfrida Kabwata. On 02/01/2024, he was called to the murder scene in Ihanga, Buziku Ward, where the victims' bodies were found. He returned on 03/01/2024 to prepare a sketch map, which was admitted as Exhibit PE4. On 21/04/2024, PW17 and A/INSP Makwega went to Geita to arrest a suspect, i.e. Tulo Swakala (DW9). The suspect was identified, arrested, and transported back to the station. On 09/01/2024, PW17 recorded a confession from Zanzibar Madegeleki, one of the suspects, who admitted to participating in clan meetings that planned the murders due to a land dispute. During cross-examination, PW17 clarified that he was not involved in Zanzibar's arrest and could not confirm details about the financial contributions mentioned in the confession. He also acknowledged that he was not responsible for deciding who should be arrested. PW18, James Lisawa Wawenje, a Physical Security Manager and Law Enforcement Support Officer at Vodacom Tanzania PLC, testified about his role in providing phone records for the investigation. He stated that on 05/01/2024, he received a request from the Director of Criminal Investigations (DCI) for information on specific phone numbers, including those of Ernest Nyororo (DW1) and Lucas Madegeleki (DW3). He provided the requested documents, which included call records showing Page 14 of 45 communications between Ernest and Lucas from 2nd to 4th January 2024. The data indicated they were in the Geita and Kagera regions, based on cell tower locations. On 29/05/2024, Officer Elikana visited PW18 to collect hard copies of these records, which were stamped, signed, and dated by PW18. The documents, including SIM card ownership details and geographical locations, were admitted as exhibits PE4(a-c). In cross-examination, PW18 clarified that Vodacom could only provide call location data, not call or message content. He confirmed that the reports were accurate and followed proper procedures but acknowledged that overlapping regions in the data could occur due to tower proximity. He also noted discrepancies in printouts due to different printers used and clarified that Vodacom equipment was routinely serviced. After the prosecution case was closed, all ten accused persons were found to have a prima facie case to answer and were invited to present their respective testimonies. Each testified under oath and categorically denied involvement in the offences charged against them. Briefly, their evidence is as indicated hereunder. Ernest Nduta Nyororo (DW1) testified that his family's 400-acre estate was divided in 2015 following the death of his uncle, Madegeleki Nyororo. In Page 15 of 45 2018, Japhet Lusangija was appointed as the estate administrator, and the land was distributed in 2019. Ernest received TZS 1 million from selling his share of the estate. He denied any involvement in the murders of Japhet and Winfrida, asserting he was in Geita on the day of the murders and had no motive, as his share of the estate had already been settled. During cross- examination, DW1 denied planning the murders, having disputes with Japhet or his family, or opposing Japhet's role as the estate administrator. He further denied forging documents or being involved in any probate disputes. DW1 stated he learned of Japhet's death on 02/01/2024 but was arrested before he could attend the funeral. He also refuted allegations of communicating with Lucas on 02/01/2024, clarifying that Exhibit PE4(a-c) showed communication on 01/02/2024 while he was at home. DW1 maintained his innocence and denied any involvement in criminal acts or conspiracies. Zanzibar Madegeleki (DW2) testified that he was arrested at home on 03/01/2024, detained at Sengerema and Chato Police Stations, and coerced under beatings to confess to a crime he did not commit. He denied involvement in the murders of Japhet Lusangija and Winfrida Kabwatala, stating he first learned of their deaths while in custody. He asserted the Page 16 of 45 family farm had been peacefully divided five years earlier with no disputes, denied knowledge of meetings or plans related to the murders, and claimed no familiarity with Mpina. In cross-examination, DW2 denied Ernest's involvement in his arrest, refuted being detained on 09/01/2024, and emphasised his consistent denials under police pressure. He maintained his innocence. Lucas Zanzibar Madegeleki (DW3) testified that he was arrested without knowledge of the allegations against him. He denied involvement in fundraising, the alleged crimes, or employment by Pili Sadala. DW3 said he only communicated with Mpina about paddy seeds and learned of Japhet and Winfrida's deaths from his mother, relaying the news to Ernest (DW1), who attended the funeral on 05/01/2024. In cross-examination, he denied any conspiracy or motive in sharing the news and explained that his delayed funeral attendance was due to a lack of bus fare. He denied knowledge of family land disputes and had minimal involvement in clan matters post- marriage. Lushingi Madegeleki, DW4, denied involvement in Japhet's murder or any land disputes, asserting that the family farms were equitably distributed among the 11 children. He described his relationship with Japhet as positive Page 17 of 45 and denied contributing to or attending meetings to plan the murder. DW4 explained that he learned of Japhet's death from his wife, as he lacked a mobile phone, and confirmed attending the funeral on 05/01/2024. He maintained his innocence and prayed for acquittal. Kesi Madegeleki, DW5, testified that he was on patrol during the incident, making his involvement impossible. He learned of an attack on his brother on 02/01/2024 and joined funeral plans later. Arrested after a funeral at Ngoma, he denied involvement in the murder or any family disputes, asserting that Japhet fairly distributed the estate. In cross-examination, he cited a lack of bus fare for missing Japhet's funeral and denied attending meetings or planning the killing. Simon Madegeleki, DW6, denied involvement in Japhet Lusangija's murder, asserting his innocence despite alleged mistreatment during interrogation. He described a close relationship with Japhet and denied any knowledge of farm sales, fundraising, or murder planning. In cross- examination, he reaffirmed that Japhet had fairly distributed the estate and denied any criminal activity, family disputes, or involvement in plotting against Japhet. Page 18 of 45 Kinyonga Madegeleki, DW7, denied involvement in Japhet Lusangija's murder and stated he was unaware of the charges until the day after his arrest. He affirmed that there were no land disputes or meetings related to Japhet's killing. In cross-examination, DW7 explained his absence from Japhet's funeral due to illness, with his son attending in his stead. He confirmed Japhet had fairly distributed the family estate, which he had farmed for five years, and denied any conflicts or allegations of murder planning. DW7 maintained the clan lived peacefully and attributed his arrest solely to the murder charges, appealing for the Court's intervention. Jumanne Juma Makaranga, DW8, denied involvement in the crime, asserting he was at home in Kasamwa on the day of the incident and had no prior association with Mpina, Kesi, or Lucas, only meeting them in custody. He refuted claims of harboring Mpina, receiving Tsh 100,000, or being at the crime scene, describing these allegations as baseless. DW8 stated he did not know Ernest or Japhet Nyororo and denied any role in their deaths. In cross-examination, he emphasised belonging to a different clan, lacking knowledge of the co-accused or their actions, and have never travelled to Ihanga, Geita, or Chato, apart from Mwanza. Page 19 of 45 Tulo Swakala Kisasembe, DW9, testified that he was tortured during interrogation and coerced into signing documents out of fear for his life. He denied involvement in any meetings related to Japhet's murder, having an interest in the Nyororo family farm, or receiving money for the crime. DW9 stated he was unaware of any land disputes or inheritance conflicts within the family. In cross-examination, he confirmed attending Japhet's funeral but denied participating in pre-burial meetings. He reiterated his innocence, emphasising his close relationship with the Nyororo family and lack of knowledge about the reasons for Japhet's death or any family disputes. DW10, Mpina Madegeleki Kagugu testified that on 02/01/2024, he was in Butongo, Sengerema, with his second wife and children, planting paddy seedlings all day. He denied travelling to Ihanga or being involved in any activities related to the alleged crimes. Mpina recounted his arrest on 29/08/2024 at his sister's house in Kakese, Mpanda, where he was tortured, beaten, and coerced into signing documents. He denied knowledge of any disputes or meetings involving the Madegeleki or Nyororo families and was unaware of Probate Case No. 1 of 2020. Mpina also denied involvement in the murder and emphasised his innocence. In cross-examination, he Page 20 of 45 maintained his denial of knowing the victims or the co-accused and requested an acquittal to reunite with his family. DW11, Veronica Tobias Zunyaga testified that she and her husband, Mpina Kagugu (DW10), work together in Sengerema and Mpanda, cultivating corn and paddy, with their farming season running from November to May each year. On 2 January 2024, they spent the day working on their farm in Butonga, Sengerema, returning home at 18:00hrs for dinner and sleep. She confirmed that her husband was home all day and did not leave. The next day, they returned to the farm together. In cross-examination, Veronica denied any knowledge of Japhet's murder or the allegations against her husband. She learned of his arrest in August 2024 from her sister-in-law, Elizabeth Makeja, and rejected claims that Mpina fled, travelled to Ihanga, or that she accompanied him. Having carefully considered the testimonies by both the Republic and the accused persons, along with the prosecution exhibits tendered before this Court, the fundamental question that arises for determination is whether the prosecution has discharged its burden of proving the case against the accused persons beyond a reasonable doubt. Page 21 of 45 It is a well-established principle of criminal law that the burden of proof rests squarely on the prosecution, and this burden remains with the prosecution throughout the trial and is not discharged unless every element of the offence is established to the requisite standard. The standard required is proof beyond a reasonable doubt, a safeguard designed to prevent the conviction of innocent persons. This principle is enshrined in Section 3(2)(a) of the Tanzania Evidence Act, Cap. 6. R.E, 2022 which explicitly mandates this duty upon the prosecution. The provision states as follows: “3(2)A fact is said to be proved when— (a) in criminal matters, except where any statute or other law provides otherwise, the Court is satisfied by the prosecution beyond reasonable doubt that the fact exists" Further, in the case of Mohamed Said Matula V Republic 1995 TLR 3 (CA), it was stated that: “…but upon a charge of the murder of that child, the onus is on the prosecution to prove not only the death of the child but also the connection or link between the appellant and such death. In a criminal case like this one, that burden is always on the prosecution; it never shifts, and no duty is cast on the appellant to establish his innocence. [Emphasis supplied] This Court is mindful that proof beyond a reasonable doubt requires the evidence presented by the prosecution to be cogent, credible, and sufficient to establish each essential element of the offence charged, leaving Page 22 of 45 no room for reasonable doubt in the mind of a prudent and impartial decision-maker, as I am in this case. In assessing whether the prosecution has met this standard, this Court will consider the entirety of the evidence presented, including the testimonies of witnesses and documentary evidence tendered. This Court will also consider the defence's testimonies by weighing them to determine if they cast doubt on the prosecution's case or establish a plausible alternative explanation. Turning to the present case, the 10 accused persons herein are charged with the offence of murder, contrary to sections 196 and 197 of the Penal Code. In a charge of murder, the prosecution bears the responsibility of proving three essential elements beyond a reasonable doubt: that the death of the deceased occurred and resulted from unnatural cause, that the accused persons caused the said death and that the accused persons acted with malice aforethought. The first element in proving a charge of murder is demonstrating that the death of the deceased persons occurred and was a result of an unnatural cause. This can be established through medical evidence, eyewitness testimony, or other admissible forms of proof. In Kavula s/o William & Another vs Republic (Criminal Appeal No.119 of 2020) [2021] TZCA 279 Page 23 of 45 (5 July 2021), the Court emphasised that the purpose of conducting a post- mortem examination and the subsequent issuance of its report is to establish the cause of death of the deceased. Other pieces of evidence that can also establish the cause of death are circumstances as was stipulated in the case of Andrea Ngura vs Republic (Criminal Appeal No. 15 of 2013) [2013] TZCA 2141 (2 December 2013) that: “Although medical evidence is a commonly accepted way of establishing a cause of death, it is not the only method. Cause of death could also be proved by circumstantial evidence" See also the cases of Bombo Tomola vs R. (1980) TLR 254 and Joseph Hamisi and Another vs R, Criminal Appeal No 13 of 1990 (unreported). In the latter case, it was stated that: "Where the cause of death is not medically established, that is not necessarily fatal to the charge. This is so if there is other cogent evidence direct and circumstantial from which to arrive at a conclusion as to the cause of death." In this case, the prosecution relied on the testimony of PW7, a medical expert who performed autopsies on the deceased and tendered post-mortem reports, which were admitted as Exhibits PE1 and PE2. These reports provided conclusive evidence regarding the cause of death of the deceased, Japhet Lusangija and Winfrida Kabwata. Regarding the death of Japhet Page 24 of 45 Lusangija Nyororo, PW7 determined that he died from a traumatic head injury resulting from severe bleeding. This was caused by multiple deep cuts to the neck, spine, and head, particularly over the right eye. About the death of Winfrida Kabwata, PW7 established that her death resulted from a severe head injury. A large wound extended from the left side of her head to the right, exposing brain tissue. These findings unequivocally indicate that the deaths of the deceased persons were unnatural and caused by external factors, specifically the multiple cut wounds observed on their bodies. In addition to PW7's medical evidence, PW1, an eyewitness, testified to having witnessed the brutal attack and killing of both his father, Japhet, and his mother, Winfrida, on the material date. This eyewitness account corroborates the medical findings and firmly establishes the occurrence of the deaths. Moreover, circumstantial evidence, including the funerals held at the deceased persons' homes and the subsequent burials of Japhet and Winfrida, serves as additional proof of their demise. The totality of this evidence, does substantiate the occurrence of deaths. By considering this comprehensive body of evidence, including medical findings, direct eyewitness testimony, and corroborating circumstantial facts, I am satisfied that there is a direct link between the wound cuts inflicted on Page 25 of 45 the deceased persons and their ultimate deaths; hence, it is clear that the prosecution has discharged its burden of proving beyond reasonable doubt that indeed Japhet Lusangija Nyororo and Winfrida Kabwata are dead and that their deaths were unnatural, caused by external and violent means. Considering that the first element in the offence of murder, i.e. proof of death, has been established, it is not sufficient to rest the case at this juncture. The legal burden requires a thorough examination of the second element: whether the evidence credibly and unequivocally connects the accused persons to the act of causing these deaths. This necessitates an analysis of the factual and evidentiary nexus between the actions or omissions of the accused persons and the deaths of Japhet Lusangija Nyororo and Winfrida Kabwata. Therefore, I must now turn to this critical question and assess whether the prosecution has discharged its obligation to prove, beyond reasonable doubt, that the accused persons are culpable for the deaths in question. From the onset, I should point out that, considering the available prosecution evidence, the accused persons herein are all connected with the murder of the deceased persons based on circumstantial evidence, bearing Page 26 of 45 in mind that no prosecution witness who testified to have seen the accused persons planning for the murder or killing the deceased persons. It is trite law in criminal cases that when circumstantial evidence is used to ground a conviction, the Court must be satisfied that the evidence, when pieced together, leads to no other reasonable conclusion than the accused's guilt. In other words, circumstantial evidence must form a chain of circumstances that is consistent with the accused's guilt and inconsistent with any other reasonable hypothesis. In the case of Samwel Marwa @Ogonga vs The Republic, Criminal Appeal No. 74 of 2013, the Court of Appeal of Tanzania at Mwanza (Unreported), observed that: “To pin liability on the basis of circumstantial evidence, the evidence must lead to no other conclusion except that the accused is the person who committed the offence he is charged with. If the evidence is capable of more than one explanation, it does not meet the standard of proof set in this principle." See also the cases of Gabriel Simon Mnyele vs Republic (Criminal Appeal 437 of 2007) [2010] TZCA 97 (22 December 2010), and Mustafa Maulidi Rashidi vs Republic (Criminal Appeal No. 241 of 2014) [2015] TZCA 259 (3 February 2015). In the former case of Gabriel Simon Mnyele vs Republic, the Court of Appeal stated that: Page 27 of 45 “It is common ground that for circumstantial evidence to found a conviction, it must be such that it irresistibly points to the guilt of the accused. From the authorities, we are settled in our minds that when a case rests on circumstantial evidence, such evidence must satisfy three tests:- (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused: (iii) the circumstances taken cumulatively, it 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 none else." In this instance, firstly, it is undisputed that the prosecution's case hinged on the assertion that the deceased, Japhet Lusangija Nyororo and his wife, Winfrida Kabwata, were killed due to disputes arising from the inheritance of land located at Isubya. The deceased, Japhet Lusangija Nyororo, as the appointed administrator of the estate, faced discontent from certain beneficiaries, especially the accused persons herein, as led by DW1, who were reportedly dissatisfied with his decision to dispose of portions of the land. According to the prosecution, these grievances allegedly culminated in a plan to eliminate him, with the ultimate goal of repossessing the disputed land. It has been asserted in evidence that plan meetings were convened by members of the Nyororo clan, during which it was agreed that each member Page 28 of 45 would contribute a sum of money to the tune of Tshs. 100,000/= to hire individuals to carry out the killings. Some of them had to work on other people's farms to raise money. However, no prosecution witness testified to having attended or observed such meetings, nor did any witness provide testimony regarding discussions that involved planning the killings and the way the contributions were collected to execute the plan. Moreover, the prosecution has failed to provide specifics such as the location of the purported meetings, the identities or roles of the attendees, or the details of the alleged deliberations. Even PW6, Pili Sadala, who hired DW10 to work on her farm for Tshs. 200,000/= stated that the money she gave DW10 was for the work she hired him to do, and she had no knowledge of how the same was used. From this, a critical gap in the prosecution's case lies in the absence of direct evidence substantiating the occurrence of these alleged meetings and alleged contributions. In totality, and although PW1 and PW5 had prior knowledge of land disputes in the Nyororo clan, however, they and other prosecution witnesses failed to link the land dispute and the murder of the couple. Secondly, PW1 testified that during the incident, she saw her father being attacked by individuals she could not recognise. Subsequently, she Page 29 of 45 heard her mother scream the words, "In-law, you have killed your brother," though the statement lacked specificity regarding which in-law the deceased was referring to. This ambiguity leaves the alleged perpetrator's identity open to speculation and significantly undermines the evidentiary value of the statement to connect any of the accused persons with the murder of the deceased persons. Additionally, PW2, a witch doctor, who testified that she encountered six individuals who confessed to having murdered a man and his wife and sought her services to cleanse them to avoid arrest, admitted that she was unable to identify the said persons due to poor eyesight and night-time conditions, further diminishing the probative value of her testimony. Furthermore, inconsistencies emerged in the testimonies of PW3 and PW4 concerning their accounts of how and where they encountered DW1, who purportedly sought the cleansing services of PW2. PW3 stated that DW1 approached him directly at a bus stop, seeking his mother's services, and he directed him to her. In contrast, PW4 testified that PW3, in the company of DW1, met him at another location, where PW2 was subsequently taken from his presence by PW3 and DW1 for her assistance and later returned to be escorted to her residence by PW4. These contradictions in the testimonies Page 30 of 45 of PW3 and PW4 cast doubt on the reliability and coherence of the prosecution's narrative, raising questions about the credibility of witnesses and the sequence of events as presented, especially in the identification of the assailants. In the case of Mathias Bundala v. The Republic, Criminal Appeal No.62 of 2004 (unreported), it was stated that: “Good reasons for not believing a witness include the fact that the witness has given improbable evidence or the evidence has been materially contradicted by another witness or witnesses." Moreover, PW4, in his testimony, stated to have seen unfamiliar motor vehicles coming from the house of PW2, the witch doctor. Though at first, he identified DW1, however, he could not recognise those who were in the said motor vehicle. He further did not specify the complexion of the accused persons or model and plate numbers of the motor vehicles in which those suspected to have killed and went to PW2 for cleansing were riding. This testimony cannot be relied upon by this Court as PW4 did not only state that the said persons he identified were involved in the murder but also failed to state whether those present in Court were the ones he saw leaving at PW2's home. Another factor that was highlighted by the prosecution to link DW1 with the incident is his non-attendance to the funeral and burial of his brother Page 31 of 45 and sister-in-law. According to PW11, DW1 was informed about the deaths on 02/01/2024. PW11 expressed surprise at not seeing DW1 at the funeral, describing the absence as unusual. However, PW11 also clarified that DW1's non-attendance did not necessarily imply his involvement in the murders. DW1 himself admitted during testimony that he had been informed of the deaths of both his brother and sister-in-law before the burial on 05/01/2024. He stated that he had intended to attend the burial but was arrested before he could do so. Notably, no prosecution witness directly linked DW1's absence at the funeral to his alleged involvement in the murders. It should also be emphasised, in these circumstances, that suspicion, no matter how strong, cannot form the basis of a conviction. See the case Kefa Rashid & Others vs Republic (Criminal Appeal No. 68 of 2013) [2013] TZCA 358 (26 September 2013). Therefore, in these circumstances, and without any cogent evidence, DW1's absence from the funeral on the date of the incident can lead to various inferences, none of which necessarily implicate him in the murders. The absence of a loved one at a funeral may stem from a range of personal, logistical, or emotional reasons, none of which inherently suggest culpability. In criminal law, speculative inferences should be avoided when assessing Page 32 of 45 circumstantial evidence. In this instance, the mere absence of DW1 at the funeral, without further corroborative evidence linking this behaviour to the murders, cannot sustain the weight of suspicion. That notwithstanding, the assessment of the evidence regarding the locations of Ernest Nyororo (DW1), Lucas Zanzibar Madegeleki (DW 3) and Mpina Kagugu (DW10), and their alleged involvement in the commission of the murder, as presented by PW18 and Exhibits PE4(a), PE4(b), and PE4(c), raise significant legal and evidentiary issues that require close scrutiny by this Court. While telecommunication data provides circumstantial evidence about the movements as indicated by the telecommunication towers and interactions of the trios, its probative value is inherently limited in the absence of the contents of their communications, such as messages or recorded calls, that explicitly demonstrate a plan, its execution or intent to commit the murder. In this instance, while the call records and location data indicate that the accused persons were in specific regions during the relevant period (i.e., 02/01/2024), such evidence does not establish a direct link to the planning or execution of the murder. According to the records, DW1 was in Geita at 20:05 hrs when he communicated with DW3, who was in Kagunga, and Page 33 of 45 DW10 was in Buziku at 19:49 hrs when he communicated with DW3. PW18 confirmed that Vodacom does not capture the content of calls or messages, leaving the prosecution without critical evidence that could establish the accused persons' involvement in the crime. Additionally, the testimony of PW18 underscores the limitations of cell tower data. It should be noted and emphasised that evidence relying on technology must be precise and leave no room for ambiguity. PW18 admitted that cell tower data indicated the location of the tower used for communication, not the precise physical location of the individuals. In areas like Chato and Kagera, where overlapping coverage exists, the possibility of inaccuracies in geographical inference further raises concerns on the exact locations of the accused persons. Consequently, while telecommunication data serves as circumstantial evidence indicating possible interactions and general locations of the accused persons, it fails to directly implicate them in the planning or commission of the murder. In the absence of evidence regarding the content of their communications or other corroborative proof, the prosecution's case remains speculative. Therefore, the tests for relying on circumstantial Page 34 of 45 evidence to ground the conviction, as established in Gabriel Simon Mnyele v. Republic (supra), have not been satisfied in this case. At this juncture, I also wish to address the confessions attributed to Tulo Swakala (DW9), as recorded by PW12 and admitted as Exhibit PE3, alongside the confessions made by Zanzibar Madegeleki (DW2), Lucas Zanzibar Madegeleki (DW3), Tulo Swakala(DW9), and Mpina Madegeleki (DW10) before PW15 and PW16, the justices of the peace, respectively. My analysis begins with DW9's cautioned statement. During the admission of Exhibit PE3, I explicitly noted that this evidence would be carefully examined within the broader context in analysing the evidence presented. Upon thorough review, the record shows its certification was purportedly made under section 57(3) of the Criminal Procedure Act (CPA). Notably, DW9 could read the recorded statement, as indicated by PW12. It should also be noted that the admission of this statement was not challenged on the grounds of non-compliance with the procedural safeguards provided under section 57 of the CPA. It is, therefore, imperative to underscore that sections 57 and 58 of the CPA were specifically enacted to protect the rights of accused persons during police interrogation. These provisions are critical safeguards against Page 35 of 45 coercion, misrepresentation, or the improper recording of statements that could unduly prejudice the accused. Any failure to strictly comply with these provisions risks undermining the authenticity and admissibility of such evidence. The importance of compliance with these provisions has been consistently emphasised in several Court of Appeal decisions, including the cases of Chamuriho Kirenge @Chamuriho Julius v. Republic, Criminal Appeal No. 597 of 2017 [2022] TZCA 98 (7 March 2022), where the Court of Appeal cited Musa Mustapha Kusa and Another v. Republic, Criminal Appeal No. 51 of 2010 and Bulabo Kabelele and Mashaka Felician v. Republic, Criminal Appeal No. 224 of 2011 (both unreported) to mention a few. These authorities reiterate that failure to comply with mandatory procedural requirements under sections 57 and 58 of the CPA renders the recorded statement inadmissible. Section 57(3) of the CPA provides that: "A police officer who makes a record of an interview with a person in accordance with subsection (2) shall write, or cause to be written, at the end of the record a form of certificate in accordance with a prescribed form and shall then, unless the person is unable to read— (a) show the record to the person and ask him— Page 36 of 45 (i) to read the record and make any alteration or correction to it he wishes to make and add to it any further statement that he wishes to make; (ii) to sign the certificate set out at the end of the record; and (iii) if the record extends over more than one page, to initial each page that is not signed by him; and (b) if the person refuses, fails or appears to fail to comply with that request, certify on the record under his hand what he has done and in respect of what matters the person refused, failed or appeared to fail to comply with the request." [Emphasis supplied] This provision clearly establishes that the recording officer must take specific actions to authenticate the accused person's statement. The officer must show the record to the accused, request the accused to read it, make any necessary alterations, corrections, or additions, and obtain the accused's signature or initials to verify the accuracy of the record. The objective of this procedure is to ensure that the statement accurately reflects the accused person's words and was given voluntarily, free from coercion or misrepresentation. In the case at hand, PW12 certified the statement as follows: “UTHIBITISHO: Mimi askari polisi namba WP.10881 D/CPL AGNES ninathibitisha kuandika maelezo ya TULO s/o SWAKALA KISAMEMBE kwa usahihi chini ya K/F cha 57(3) CPA, Cap 20 RE 2022” Page 37 of 45 However, this certification falls short of the requirements under section 57(3). Specifically, PW12 did not indicate that the record was shown to the accused. Also, despite the accused's certification that he read it, there is no record that PW12 in her certification asked the accused to read the statement or make corrections or additions if he so wished. Generally, PW12's certification lacks the critical details necessary to establish the authenticity of the process as mandated by law. This Court had provided a guide for recording such certifications in the wording of the said section of the CPA in the case of Republic vs Fikiri Kapala & Another (Criminal Session Case No. 27802 of 2024) [2024] TZHC 10171 (13 December 2024). As a result, the authenticity and reliability of Exhibit PE3 become questionable. I, therefore, proceed to expunge Exhibit PE3 from the record for non-compliance with the mandatory provisions of the CPA. Furthermore, PW9 and PW10 testified that DW1 played a key role in implicating the other accused persons in the alleged plot. PW9 stated that DW1 gave a caution statement in which he discussed the ongoing land dispute, which was central to the case. However, PW10, who recorded DW1's statement, pointed out a discrepancy in that DW1 denied his direct involvement in the murder but nonetheless provided detailed information Page 38 of 45 about the events surrounding the crime. Importantly, despite DW1 offering these details, no cautioned statement was tendered in Court despite his being implicated as an accused person. Furthermore, there was no independent testimony linking DW1 directly to the crime, raising significant concerns about the reliability of the details provided by PW9 and PW10. Regarding the confessions allegedly made by DW2 and DW3, and DW9 and DW10 before the justices of the peace, namely PW15 and PW16, respectively, this matter need not detain the Court for long. The said prosecution witnesses failed to tender the records of the extrajudicial statements purporting to indicate that the accused persons confessed before them. Even assuming, arguendo, that the said statements had been tendered and admitted into evidence, this Court would not have placed reliance upon them unless they were corroborated by other independent and credible evidence. See the cases of Alex Ndendya vs Republic (Criminal Appeal No. 207 of 2018) [2020] TZCA 202 (6 May 2020) (Tanzlii) while referring to the case Geofrey Sichizya vs DPP (Criminal Appeal 176 of 2017) [2020] TZCA 159 (30 March 2020) (Tanzlii) and Bombo Tomola vs. Republic [1980] TLR 254. Page 39 of 45 In the present case, the absence of the extrajudicial statements on record and the lack of corroboration by independent evidence renders the alleged confessions of DW2 and DW3 and DW9 and DW10 before PW 15 and PW16 unreliable. Consequently, this Court cannot place any weight on these unsubstantiated allegations, as doing so would contravene the safeguards established to uphold the integrity of judicial proceedings. Prior to concluding the second element in proving the offence of murder, it is essential to address the defence of alibi raised by the accused persons, DW1 and DW10. As stipulated in Section 194(4) and (5) of the Criminal Procedure Act, Cap. 20 (R.E. 2022), an accused person must provide notice of their intention to rely on an alibi defence at an early stage of the proceedings, preferably before the commencement of the trial or before the closure of the prosecution case. This requirement ensures that the prosecution is granted sufficient time to investigate the alibi and prepare a response or rebuttal. In the case of Director of Public Prosecutions vs Nyangeta Somba and Twelve Others [1993] TLR 69 (CA), it was emphasised that: "No form of notice of alibi described by law, but the notice must furnish sufficient particulars of the alibi to enable the prosecution to verify the Page 40 of 45 truth of those particulars and, if necessary, assemble evidence in rebuttal, and the notice should be given before the main hearing." In the case of DW1, he duly complied with this requirement by notifying both the Court and the prosecution of his intention to rely on an alibi before the hearing began. However, while DW1 raised his alibi, the specifics were not fully substantiated. The evidence, including communication data (Exhibits PE4(a-c)), showed that DW1 was in Geita at the time of the crime, supporting his claim that he was not at the scene. Nonetheless, it was also alleged that DW1 was the mastermind behind the murder plot, allegedly receiving updates on the execution of the crime from DW3 on 02/01/2024 at 20:05 hrs. Although the communication data raised suspicions regarding his involvement in the conspiracy, it is essential to note that no direct evidence linked the communication between DW1 and DW3 to the actual commission of the murders. The lack of corroborative evidence leaves the question of his involvement unresolved, as there was no apparent connection between the communication data and the crimes charged. On the other hand, DW10 raised an alibi pursuant to section 194(5) of the Criminal Procedure Act (CPA), asserting that on the material date of the alleged crime, he was at his residence in Sengerema. His alibi was further supported by the testimony of his wife, DW11, who stated that she was with Page 41 of 45 DW10 throughout the entire day and night of 02/01/2024, the day of the crime. According to DW11, DW10 never left home after working on their farm, and the following day, the two of them proceeded to their seedling farm together. This alibi was presented in a bid to cast doubt on the prosecution's case. However, the evidence presented by the prosecution, namely the call logs (Exhibits PE4(a-c)), placed DW10 in the Buziku area on 02/01/2024 at 19:49:32hrs communicating with DW3. This discrepancy between the location indicated in the call logs and the alibi raises significant concerns, which the prosecution carries the burden of proving. DW10's wife's testimony, which asserts that she was with him all day and night, contrasts the call data placing him elsewhere. While it is acknowledged that DW10 may have communicated with DW3, the prosecution failed to provide any substantive details regarding the content of their communication and whether it was DW10 or another person who had his phone, leaving the reliability of such evidence in question. Despite the call log data placing DW10 in the vicinity of Buziku, where the murder allegedly occurred, there was no direct evidence linking his presence in the area to the commission of the crime. Furthermore, the prosecution did not present any witness Page 42 of 45 testimony to corroborate the claim that DW10 was seen in Buziku on the material date. In evaluating the credibility of DW11, the court finds her testimony to be both clear and consistent with that of DW10, further reinforcing the reliability of the alibi. The court also notes that, despite the prosecution's reliance on mobile communication data, there is an absence of direct evidence linking DW10 to the crime scene or corroborating the mobile data with any eyewitness testimony. Consequently, the second element of murder requires the prosecution to establish, beyond a reasonable doubt, that the accused persons committed the unlawful act leading to the deceased's death. In the present case, which relies entirely on circumstantial evidence, this Court finds that the prosecution has failed to establish a direct link between the evidence adduced and the accused persons' involvement in the commission of the murders as charged. Moreover, there is no credible evidence connecting the alleged murders to any land dispute between the accused persons and the deceased. While some of the evidence raises suspicion, it falls short of the standard required in criminal law to point conclusively to the accused persons as the perpetrators of the murders of Japhet Lusangija Nyororo and Winfrida Kabwata. Page 43 of 45 The third element of murder requires the prosecution to establish that the killings were committed with malice aforethought. Under section 200 of the Penal Code, Cap. 16 (R.E. 2022), malice aforethought is the intention to cause death or grievous harm to a person. This element is a core requirement of the offence of murder and must be proved beyond a reasonable doubt for a conviction to be sustained. However, given that the second element, i.e., whether the accused persons unlawfully caused the deaths of the deceased, has not been sufficiently established by the prosecution, it logically follows that the third element, i.e., malice aforethought, cannot be proven. Malice aforethought is intrinsically linked to the act of causing death, as it reflects the accused's intent or state of mind at the time of the killing. Without clear proof of the accuseds' direct involvement in the deaths, it is legally untenable to infer the requisite intent or state of mind. In other words, if the actus reus has not been definitively established, then the mens rea necessary to demonstrate malice aforethought cannot be presumed. The failure to establish the physical act of the crime precludes the establishment of the mental element of the crime, as the two elements are inseparable. Therefore, in the absence of proof of the accused's involvement in the Page 44 of 45 killings, the prosecution has failed to meet the burden of proving malice aforethought beyond a reasonable doubt. This Court, therefore, finds that the prosecution has not discharged its burden under the law to prove the third element of murder. Accordingly, the allegations of malice fail alongside the unproven second element. That said and done, it should not be overemphasised that the prosecution must prove all three elements of the offence of murder concurrently and beyond a reasonable doubt. In this case, while the first element, establishing the deaths of Japhet Lusangija Nyororo and Winfirda Kabwata, was proven, the prosecution failed to establish the second and third elements, namely that the accused persons unlawfully caused the deaths and did so with malice aforethought. As the burden of proof rests solely on the prosecution and must be discharged comprehensively for all elements, failing to meet this threshold conclusively means that the case against the accused persons has not been proven. Accordingly, I find that the accused persons are not guilty of the offence of murder as charged. In light of the above, I proceed to acquit Ernest Nduta Nyororo @Hatari, Zanzibar Madegeleki, Lucas Zanzibar Madegeleki, Lushingi Madegeleki, Kesi Madegeleki, Simon Page 45 of 45 Madegeleki@Buduru, Kinyonga Madegeleki, Jumanne Juma Makaranga, Tulo Swakala Kisasembe and Mpina Madegeleki @Kagugu of the offence of murder contrary to sections 196 and 197 of the Penal Code [CAP 16 R.E 2022]. I further order that they be released forthwith from prison unless they are lawfully detained in connection with other grounds. It is so ordered. DATED at GEITA on this 6th day of January 2025. G.V. MWAKAPEJE JUDGE Right to appeal explained. G.V. MWAKAPEJE JUDGE