CRIMINAL APPEAL NO 360 OF 2023 ELIA RENATUS KIMELA VERSUS THE REPUBLIC 2

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA (CORAM: KEREFU, J.A ., MGONYA, 3 .A. And MLACHA, 3.A.1 CRIMINAL APPEAL NO. 360 OF 2023 ELIA RENATUS KIM ELA............ ..... ............ ..APPELLANT VERSUS THE REPUBLIC........ ......... ........RESPONDENT (Appeal from the Decision of the High Court of Tanzania, at Iringa) (Maeta, J.) dated the 30thday of March, 2023 in Criminal Sessions Case No. 86 of 2021 JUDGMENT OF THE COURT 17th & 24h March, 2025 KEREFU, 3 .A .: ELIA RENATUS KIMELA, the appellant herein, is currently serving a death sentence following his conviction by the High Court of Tanzania at Iringa of the offence of murder contrary to sections 196 and 197 of the Penal Code, Cap. 16 (the Penal Code), in Criminal Sessions Case No. 86 of 2021. The information laid by the prosecution alleged that, on 16th November, 2020 at Kisasa Village within Mufindi District in Iringa Region, the appellant murdered one Alex Juma Mlembe (the deceased). The appellant denied the charge laid against him and therefore, the case had to proceed to a full trial. The prosecution case was built on evidence adduced by five (5) witnesses augmented by three (3) documentary evidence namely, the appellant's cautioned statement (exhibit Pi), the Postmortem Examination Report (exhibit P2) and the certificate of seizure (exhibit P3) together with one physical exhibit, the deceased's motorcycle (exhibit P4). On his side, the appellant testified alone, as he did not summon any witness. Briefly, the prosecution case, as obtained from the record of appeal indicates that, the deceased and his wife Silelya Simon Luvanda (PW4) were living at Igowole Village. It was the testimony of PW4 that, they were charcoal merchants and regular customers of one Kimela who was a charcoal maker. They have known him for one month prior to the incident, as he had brought charcoal at their residence twice, and in one of those occasions, he gave PW4 his mobile phone number. Since then, whenever the charcoal is out of stock, the said Kimela used to bring it at their residence. PW4 stated further that, in some of those occasions, Kimela would call to inform her that the charcoal is ready, then, her husband would go to collect it by using their motorcycle with Registration No. 806 GHH and red in colour. That, the said motorcycle was given to them by their son one Samson Mlembe, It was the further testimony of PW4 that, on 17th November, 2020 at around 15:00 hours, Kimela phoned and told her that the charcoal was ready for collection. As usual, PW4 requested her husband to go and collect it, which he did, but he never came back home. PW4 went on to state that, after noting that her husband went missing, she reported the matter to the ten-cell leader who advised her to report the same to the hamlet chairperson who told her to wait until expiry of 24 hours. PW4 stated further that, upon expiry of the said hours, they reported the matter to police. That, she also tried to phone Kimela several times, but without success, as his phone was switched off. In his testimony, ASP Eliud Peter Kivuyo (PW5), confirmed that, on 17th November, 2020 at 16:00 hours, while at Igowoie Police Station as the OGS, he received information from PW4 that her husband went missing since 16th November, 2020 from 15:00 hours. PW5 stated that, upon receiving that information, he recorded it in the report book and informed the Village Executive Officers (VEOs) of the surrounding villages about the incident. On 22nd November, 2020 at 08:00 hours, the VEO of Kisasa Village, Linner Dugange (PW1), came to his office and informed him that, at Matalawe hamlet there was a body of a male person who is believed to be dead. PW5 revealed that information to PW4 who came to his office with his brother-in-law one Richard Mlembe. PW5 said that, he requested PW4 and his brother-in-law to accompany them to the scene of crime to identify the deceased's body. PW5 stated that they went to the scene of crime together with PW1, PW4, Richard Mlembe, CPL Yetusi, DC Ali and Dr. Amos Malimi. Upon arrival, they found the dead body of the deceased in the bush, covered with a black leather coat, facing downward and there were dried tree branches on top. That, they turned the dead body upside, and PW4 and Richard Mlembe, identified it, as the body of Alex Juma Mlembe. PW5 stated further that, he prepared a sketch map of the scene of crime and Dr. Amos Malimi, examined the deceased's body and prepared a Postmortem Report (exhibit P2), in which he concluded that the cause of death was cardiorespiratory arrest secondary to suffocation and intracranial hemorrhage. PW5 stated that, the deceased's body had started to decompose. That, after examination they handed over the deceased's body to the relatives for burial. Subsequently, on 25th November, 2020 at 20:00 hours, he received information from Kenedy Msukwa, the OC-CID of Njombe that the appellant was arrested at Makambako suspected to have killed the deceased. PW5 stated that, he requested Kenedy Msukwa to bring the appellant to Igowole Police Station, to take them to the scene of crime and show them where he hid the deceased's motorcycle. That, on 26th November, 2020 at about 10:00 hours, PW5, PW1, CPL Yetusi and the appellant went to the scene of crime. That, upon -arrival, the appellant showed them where the deceased parked the motorcycle and they walked into the bush for about 70 paces, in order to show him the charcoal. Thereat, the appellant hit him with an axe and then pulled his body aside about seven (7) paces and left the body thereat lying facing downward. It was the testimony of PW5 that, where the appellant took them, was the same place where the deceased's body was recovered. PW5 went on to state that, having showed them the scene of crime, he requested him to take them to the place where he hid the deceased's motorcycle. That, the appellant took them to Maguvila Village at the cafe owned by one Eliza. That, outside the said cafe, they found the motorcycle with Registration No. MC 806 CHH, make boxer, parked outside, PW5 asked Eliza to tell them the name of the person who parked the said motorcycle outside the cafe, who responded that he does not remember his name but he said, the person left it, as he told them that he was going to Makambako and will come back to pick it. PW5 said, when they took Eliza to their motor vehicle, she recognized the appellant, as the person who left the motorcycle at the cafe. PW5, seized the said motorcycle and filled a certificate of seizure which was signed by Eliza, the appellant and PW5. The seizure certificate and the motorcycle were admitted in evidence as exhibits P3 and P4, respectively. It was the further testimony of PW5 that, upon reaching at Igowole Police Station, he called PW4 who came and identified the motorcycle, as their property which was being used by the deceased. In their testimonies, PW1 and No. G. 201 D/CPL James (PW2), supported the narration by PW5. PW2 added that, he was among the investigation officers who investigated the incident. That, he arrested the appellant on 23rd November, 2020 at Uhuru Street in Makambako while seated at 'kijiw e n l and brought him to Makambako Police Station. At the Police Station, the appellant was interviewed by No. H. 847 D/CPL Lugenji (PW3), who recorded his cautioned statement. It was the testimony of PW3 that, in that statement the appellant confessed to have killed the deceased and took his motorcycle. The said statement was admitted in evidence as exhibit PI. In his defence, the appellant, who testified as DW1, dissociated himself from the accusations levelled against him by raising a defence of alibi. He contended that, on 16th November, 2020, he was at his farm in Kisasa Village. While there, his boss, one Frank Fuime phoned him and asked him to go to Makambako, so that, he could proceed to Mbaruku to work on his paddy farm. That, he (eft Kisasa on 17th November, 2020 and arrived at Makambako around 12:00 hours. Upon arrival, Fuime told him that, they would leave for Mbaruku on 25th November, 20220. That, on 23rd November, 2020, while asleep at the residence of Fuime, he was arrested by police officers and brought to Makambako Police Station. He denied to have recorded any cautioned statement until 24th November, 2020, when he signed some papers, after being tortured and forced to admit to have committed the offence, Thereafter, he was transferred to Mafinga Police Station and then, on 26th November, 2020, he was brought to Igowole Police Station. He admitted to have been taken to the scene of crime and then to Maguvani Village, where the deceased's motorcycle was found. After a full trial, the learned trial Judge accepted the version of the prosecution's case and specifically placed much reliance on the evidence by PW1, PW3, PW4 and PW5, whose evidence was found to have been corroborated by the appellant's cautioned statement (exhibit PI). Thus, the appellant was found guilty, convicted and sentenced as indicated above. Dissatisfied, the appellant has knocked the doors of this Court protesting his innocence. Initially, the appellant lodged a memorandum of appeal, on 25th May, 2023 comprising eight (8) grounds of appeal. However, on 17th March, 2025, Mr. Jassey Mwamgiga, learned counsel for the appellant, lodged a supplementary memorandum of appeal which contained the following ground: "That, the learned tria l Judge erred in law and fact in convicting the appellant irrespective o f the unproved charge or inform ation contrary to section 132 of the Crim inal Procedure Act, [Cap. 20 R : E: 2022]/' At the hearing of the appeal, the appellant was represented by Mr. Jassey Mwamgiga, learned counsel whereas the respondent Republic was represented by Mr. Yahaya Omar Misango (SSA) assisted by Ms. Winfrida Mpiwa Ernest and Mr. Hurbert Ishengoma, both learned State Attorneys. Upon taking the floor, Mr. Mwamgiga, prayed to abandon the substantive memorandum of appeal and intimated that, he would only argue the remaining ground in the supplementary memorandum of appeal. Submitting in support of that ground, Mr. Mwamgiga faulted the learned trial Judge for finding that the charge against the appellant was proved to the required standard while the prosecution witnesses were incredible and unreliable as their evidence was tainted with contradictions on the exactly date when the deceased was murdered. To amplify on this point, he referred us to page 1 of the record of appeal and argued that, the charge, which is the foundation of the appellant's case, was at variance with the evidence adduced by the prosecution witnesses during the trial. To clarify, he argued that, while the particulars of the offence indicated that the deceased was murdered on 16th November, 2020, in her testimony, PW4, the wife of the deceased, at page 38 of the record of appeal, testified that, her husband left home on 17th November, 2020 around 15:00 hours to collect charcoal from Kimela and thereafter, went missing and at page 42 of the same record, PW5 stated that, on 17th November, 2020 at 16:00 hours, while in his office, he received information from PW4 that, her husband went missing since 16th November, 2020 from 15:00 hours. Mr. Mwamgiga also referred us to page 68 of the record of appeal and argued that, according to exhibit P2, an autopsy on the deceased's body was conducted on 22nd November, 2020 where the doctor observed that the death occurred seven (7) days prior to the examination i.e 15th November, 2022. It was the argument of Mr Mwamgiga that, from the evidence of these two prosecution witnesses, it is not clear when exactly the deceased went missing and when exactly he was murdered. In the circumstances, the learned counsel argued that, the prosecution was required to amend the charge under section 234 of the CPA, but that was not done. He, however, referred us to page 77 of the record of appeal, where the learned trial Judge raised doubts on the credibility of PW4, but he contended that, the same did not exonerate the prosecution's duty to amend the respective charge. He thus emphasized that, since the evidence adduced by prosecution witnesses does not support the charge laid against the appellant, the same was not proved to the required standard and the matter should be resolved in the favour of the appellant. To bolster his argument, he cited the case of Francis Fabian @ Emmanuel v. Republic, Criminal Appeal No. 261 of 2021 [2023] TZCA 17936. He then, finally, urged us to allow the appeal, quash the conviction and set aside the sentence imposed on the appellant and set him at liberty. In his response, at the outset, Mr. Misango declared the respondent's stance of opposing the appeal. He then challenged the submission made by his [earned friend regarding the charge. He referred us to section 132 of the CPA and argued that the charge found at page 1 of the record of appeal is properly crafted and is in compliance with the requirement of that section. As for the alleged contradictions in the particulars of the charge and the evidence of PW4 and PW5, Mr. Misango argued that, there is no any contradiction as each witness testified on what he/she directly perceived and or informed at different intervals of the incident. Starting with the charge, Mr. Misango argued that, the charge clearly indicated that the offence was committed on 16th November, 2020 and the same was supported by the evidence of PW5 who received information on the missing of the deceased from PW4. He also added that, the said evidence was corroborated by the appellant's cautioned statement found at page 65 of the record of appeal, where the appellant, by his own words, stated that he committed the offence on 16th November, 2020. He however, admitted that, during the trial, PW4 was observed by the learned trial Judge who commented that she was struggling to remember the dates due to her illiteracy. He said, the learned trial Judge considered the said contradictions and found that the same are minor defects which do not go to the root of the matter. On the observations indicated by the medical doctor that death occurred seven (7) days before the examination, he urged us to disregard the same as it was only a mere opinion made by an expert. He argued that, the main purpose of the medical report was only to prove that the deceased died unnatural death and not otherwise. He therefore insisted that there are no any contradictions. In the alternative, the learned Senior State Attorney argued that, if the Court will find that the said contradictions do exist, the same are minor defects which do not go to the root of the matter and dispute the fact that the deceased was killed by the appellant, as he himself confessed and led the team to where he hid the body and the deceased's motorcycle. He therefore emphasized that the case against the appellant was proved beyond reasonable doubt, In conclusion and on the strength of his submissions, Mr. Makasi urged us to find the appellant's appeal unmerited and dismiss it in its entirety. In a brief rejoinder, Mr. Mwamgiga reiterated his previous submission and insisted that the charge was not proved. Having considered the rival arguments by the learned counsel for the parties in the light of the record of appeal, we should now be in a position to consider the ground of complaint raised by the appellant. However, before doing so, it is crucial to state that, this being the first appeal, It is in the form of a re-hearing, therefore the Court, has a duty to re-evaluate the entire evidence on record by reading it together and subjecting it to a critical scrutiny and if warranted, arrive at its own conclusion of fact - see D.R. Pandya v. Republic [1957] EA 336 and Demeritus John @ Kajuli & 3 Others v. Republic, Criminal Appeal No. 155 of 2013 (unreported). Starting with the issue of charge raised by Mr. Mwamgiga, we agree with him that, in any criminal proceedings, the charge is the foundation of the case and the same should be crafted in accordance with the requirements of sections 132 and 135 of the CPA. However, having perused the particulars of the charge, in this appeal and the evidence adduced by both parties during the trial, we are unable to agree with Mr. Mwamgiga that the same was not proved to the required standard. Anyhow, to verify the contradictions complained of, we have revisited the testimonies of PW4 and PW5 together with the appellant's cautioned statement. In her evidence found at page 38 of the record of appeal, PW4, the wife of the deceased, testified that: "My husband le ft home on 17/11/2020 a t 15:00 hours. He said he was going to coiiect charcoal a t Kisasa Village. One Kimela had phoned me and said the charcoal was ready so m y husband should go to collect it. Kim ela is the charcoal maker. I inform ed my husband to go to collect the charcoal from Kim ela. He never came back. I reported to the ten-cell leader who to ld me to report to the ham let chairperson who told me to w ait until expiry o f 24 hours. A fter expiry o f those hours, we reported to the police who told us we should keep on searching for him . " Then, at page 42 of the same record, PW5 testified that: "On 17/11/2020 at 16:00 hours, I was in office at Igowole. I received inform ation from Silelya Luvanda (PW 4) that her husband had gone m issing since 16/11/2020 from 15:00 hours." Furthermore, at page 65 of the same record, the appellant, in his own cautioned statement (exhibit PI), which was received in evidence without objection, he confessed that: "...Aidha, tarehe 16/11/2020 m ajira ya saa 15:00 hours huko mtaa wa Matalawe nilikuw a na Frank s/o Mfyuka tukiwa tunakata mkaa. M im i niiikuwa na shoka m oja fenye m pini wa m ti rangi ya kaki na Frank s/o Mfyuka alikuwa pia na yeye ana shoka. Ndipo alifika Miernbe akiwa na p ikip iki yake aina ya boxer rangi nyeusi ambapo baada ya kufika aiisem a kuwa anataka mkaa na s isi tukamwambia asogee Hi aje aangal/e. Aiiposogea m im i niiikuw a nim eshika shoka na Frank s/o Mfyuka alikuwa ameshika shoka. Ndipo m im i niliinua shoka na kumpiga nalo kichw ani akaanguka chinK Baada ya kuanguka chini Frank s/o Miyuka aiim kata na shoka maeneo ya shingoni na kichw ani ambapo damu ziiianza kumtoka hivyo tuiitam bua kuwa amekufa, hivyo tuiichukua p ikip iki na kuondoka..." Having considered the above excerpts, we do not, with profound respect, consider the contradictions complained of, to be material to the extent of affecting the credibility and reliability of the evidence of PW4 and PW5. By any means, we cannot expect the said witnesses to match in their testimonies in all aspects as each one of them testified on what she or he witnessed at a different interval of the commission of the offence. It is also on record that, through his own confession the appellant confessed to have committed the offence on 16th November, 2020, the date indicated in the charge. Furthermore, PW5 testified that, upon being arrested, the appellant led them to where he hid the deceased's body and the deceased's motorcycle. In the circumstances arid taking into account that the appellant did not challenge the admissibility of his confessional statement during the trial, we see no reason to differ with the finding of the trial court on this matter. In the case of Mohamed Haruna @ Mtupeni and Another v. Republic, Criminal Appeal No. 259 of 2007 [2010] TZCA 141: [4 June 2010: TanzLII], the Court observed that: "The very best o f the witnesses in any crim inal tria l is an accused person who freeiy confesses h is g u ilt" In the circumstances, we find the case of Francis Fabian @ Emmanuel (supra), relied upon by Mr. Mwamgiga distinguishable and not applicable in the circumstances of this appeal. In that case, among the prosecution witnesses, there was no one who testified in relation of the dates indicated in the charge, which is not the case herein. On that basis, we have no hesitation to agree with Mr. Misango that, the appellant's complaint on the above ground is plainly baseless as the pointed-out contradictions do not go to the root of the matter. In the event, we find the appellant's ground devoid of merit. In the light of the foregoing, and looking at the totality of the evidence, we entertain no doubt that with the available evidence, the trial court properly held that the case against the appellant was proved beyond reasonable doubt. Consequently, we find no merit in the appeal and we hereby dismiss it in its entirety. DATED at IRINGA this 24th day of March, 2025. R. J. KEREFU JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 24th day of March, 2025 in the presence of the appellant in person and Mr. Sauli Makori, learned State Attorney for the Respondent/Republic also holding brief for Mr. Jassey Mwamgiga, learned counsel for the appellant; is hereby certified as a true copy of the original.