CRIMINAL APPEAL NO 356 OF 2023 MAJUTO RICHARD MTWALE 2 OTHERS VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA

AT IRINGA rCORAM: KEREFUr 3.A.. M60NYA. 3,A. And MLACHA, '3.A.1 CRIMINAL APPEAL NO. 356 OF 2023 MAJUTO RICHARD MTWALE.................__ ____ ........,1st APPELLANT JAILOS LENARD................................... ...... ...............2nd APPELLANT JAMES MVEKULE....... ....................................... .........3RO APPELLANT

VERSUS THE REPUBLIC....... ................................................ ......RESPONDENT (Appeal from the Decision of the Resident Magistrate's Court of Njombe, at Makambako) fChamshama. PRM-Ext. Jur.) dated the 12th day of December, 2022 in Extended Jurisdiction Criminal Sessions Case No. 13 of 2021

JUDGMENT OF THE COURT l4 h & 21st March, 2023 KEREFU. J.A.: The appellants, Majuto Richard Mtwale, Jailos Lenard and James Mvekule, together with two other persons (the 4th and 5th accused persons) who are not parties to this appeal, were arraigned before the Resident Magistrates' Court of Njombe at Makambako (Chamshama, PRM-Ext, Jur.) (the trial court) on the offence of murder contrary to section 196 of the Penal Code, Cap. 16 (the Penal Code). The particulars of the information laid by the prosecution alleged that, on 5th April, 2019 at Ikwete Village-Makambako within the District and Region of Njombe, the appellants and the two others, they jointly and together murdered one Edina Ng'uku (the deceased). The appellants together with the 4th and 5th accused persons, pleaded not guilty to the charge. However, after a full trial, the appellants were found guilty as charged. Upon conviction, whereas the 1st and 3rd appellants were sentenced to the mandatory death sentence in terms of section 197 of the Penal Code, the 2nd appellant, whose age at the commission of the offence was below 18 years, was sentenced to detention during the president's pleasure in terms of section 26 (2) of the Penal Code. Their co-accused persons [the 4th and 5th), on 9th September, 2021, they were discharged on account of a nolle prosequi filed by the Director of Public Prosecutions on behalf of the

Republic on 21st August, 2021. Briefly, the prosecution case as obtained from the record of appeal indicates that, in the evening of 5th April, 2019 at around 17:00 hours, Frank Mloge (PW2), a farmer and the owner of a local brew club, was at his business premises together with the appellants and the deceased drinking beers while others were drinking bamboo wine (ulanzi). It was the testimony of PW2 that, the appellants were his regular customers at the club. That, on the material date, while there, drinking together with the appellants, the deceased and other customers/ they were being served by a bar maid called Sanifa. That, they continued drinking until it reached a point when, the deceased urinated due to excessive drinking and he, as the owner of the dub, requested her to go home, which she did. PW2 stated further that, immediately, after ten minutes, the appellants, together with one Samuel Kipela, who was the 5th accused, left their drinks on the table and went after her. PW2 said, he stayed at the club until around 21:45- hours when he also went home. PW2 went on to state that, in the next day, i.e 6th April, 2019, while at home, he was informed that the deceased had been killed. PW2 went to the scene of crime where he found a dead body of the deceased and a crowd of people. He then, later, on the same day, went to the police station to record his statement.

Thereafter, the appellants together with the 4th and 5th accused persons were arrested and taken to Flakambako Police Station. In her testimony, Jema Kadope (PW3), the ten cell leader of Ikwete Street, testified that, on 6th April, 2019, while at her farm, she received a phone call from one Fanuel Nzali, who informed her about the murder incident. That, she went to the scene of crime, where she found the body of the deceased lying down naked with sunflower sticks inserted into her vagina and another one on her shoulder. PW3 reported the matter to Makambako Police Station. A moment later, the OC-CID together with other police officers who were accompanied by Dr. Kesha Clement Mgunda (PW1), arrived at the scene of crime. PW3 stated further that, she knew the appellants and the other accused persons as they were all residents of Ikwete Village. PW1 stated that, when they arrived at the scene of crime, they found the body of the deceased lying on the ground soaked with blood. The said body, having been identified by the relatives, he examined it and concluded that the cause of death was haemorrhage due to injuries in the abdomen and chest organs caused by sharp object. PW1 prepared a postmortem report which was admitted in evidence as exhibit PI. PWl stated further that, the deceased's body had other wounds found on the left side of the shoulder and vagina. That, he also saw a

sunflower stick inserted into her vagina and he removed it. Subsequently, on 11th April, 2019, the appellants were brought before Jackson Thomas Banobi (PW4) and Tungapesiaga Ifumwisye Mhagama (PW5), the then Justices of Peace and Magistrates who were stationed at Makambako Primary Court to record their extra judicial statements. The 1st appellant's statement was recorded by PW4 while the statements for the 2nd and 3rd appellants were recorded by PW5. In their testimonies, PW4 and PW5 stated that the appellants told them that they were arrested on 8th April, 2019 in relation to the murder incident. PW4 and PW5 also stated that, in the said statements, the appellants confessed to have participated in the killing of the deceased. They also stated that, during the recording of the said statements, the 1st appellant was under the supervision of the Court Clerk one Mbugi whereas the 2nd and 3rd appellants were under the supervision of the Court Clerk one Stephano Haule, PW5 also added that, the recording of the 2nd appellant's statement, who was a minor, was conducted in the presence of the Social Welfare Officer one Masinde Masinde. The appellants' extra judicial statements were admitted in evidence as exhibits P2, P4 and P3 respectively. In their respective defence, apart from admitting that they knew each other and the deceased and that, on the fateful date they were at the club

drinking alcohol, the appellants denied to have killed the deceased. Specifically, the 1st appellant, who testified as DW1, although, he admitted to have been taken to the justice of peace to record his extra judicial statement, he contended that, PW4, who testified before the trial court, was not the one who recorded his extra judicial statement. On his part, the 2nd appellant, who testified as DW2, stated that he was at the club up to 20:00 hours when he went home to sleep. In the next morning, 6th April, 2019, while at the farm, he heard an alarm alerting people about the death of the deceased, whom he knew by face. That, he went to the deceased's home and participated in the burial ceremony. He stated further that, he was arrested on 8th April, 2019 and taken to Makambako Police Station. On his part, the 3rd appellant, who testified as DW3, stated that he left the club at around 20:00 hours and went home. In the following morning, he heard about the death of the deceased. He also went to the deceased's home and participated in the burial ceremony. That, he was arrested on 8th April, 2019 and taken to Makambako Police Station where he was tortured to admit that he committed the offence. He also admitted to have been taken to the justice of peace to record his extra judicial statement though he said, he did not remember the name of the justice of peace who recorded it. At the

end of the trial, the trial court was convinced that the case against the appellants was proved to the required standard. Specifically, the trial court placed much reliance on the evidence of PW2 who, on 5th April, 2019, was with the appellants and the deceased at the club drinking alcohol and he witnessed the appellants leaving the club together with the deceased in that night prior to her death. That, the evidence of PW2 was corroborated by PW4 and PW5 who recorded the appellants' extra judicial statements (exhibits P2, P3 and P4) in which the appellants confessed to have participated in the exercise of raping the deceased and finally killed her to conceal the evidence as she identified them. Thus, the appellants were convicted and sentenced as indicated above. Dissatisfied, the appellants have knocked the doors of this Court protesting their innocence. In their joint memorandum of appeal lodged on 24th April, 2023, they raised nine (9) grounds of appeal. In addition, the 1st and 3rd appellants have lodged separate supplementary memoranda of appeal comprised of five (5) and two (2) grounds respectively, making a total of twelve (12) grounds of appeal. At the hearing of the appeal, the appellants were represented by Messrs. Mosses Ambindwile, Cosmas Charles Kishamawe and Jally Willy Mongo, all learned counsel, respectively. Upon taking the floor, Mr. Ambindwile, the lead

counsel, prayed to abandon the first ground of appeal in the substantive memorandum of appeal. He then, intimated that, he would argue the remaining grounds in the following manner. That, the second and third grounds in the substantive memorandum of appeal would be argued jointly with the first ground in the 1st appellant's supplementary memorandum of appeal. The fourth and fifth grounds of appeal in the substantive memorandum of appeal would be argued conjointly with the fourth ground in the 1st appellant's supplementary memorandum of appeal. Then, the second ground, in the 1st appellant's supplementary memorandum of appeal, separately. On his part, Mr. Kishamawe intimated that he would argue only the fourth and fifth grounds of appeal in the substantive memorandum of appeal. Mr. Mongo indicated that, he would argue only the fourth ground in the substantive memorandum of appeal. That, the first and second grounds of appeal in the 3rd appellant's supplementary memorandum of appeal would be argued conjointly. The said grounds, can be conveniently paraphrased as follows: 1) That, the trial court erred In law and fact for failure to consider the legal status o f the second appellant who was a minor (aged 16 years) at the time o f the trial contrary to the provisions o f the Law o f Child A c t C a p , 13 and other applicable laws which require special procedures and consideration

for child offenders; 2) That, the appellants' defence evidence was not considered) 3) That, the trial court erred in law to rely on the appellants' extra judicial statements (exhibits P2, P3 and P4), which were made in the presence o f court clerks, not corroborated by a cogent witness and the first appellant repudiated his statement; 4) That, the trial court erred in law and facts by convicting the appellants while the prosecution failed to summon materia! witnesses to testify before the trial court, 5) That, the trial court erred in law and facts for failure to adequately evaluate the evidence adduced before it and thus arrived at an erroneous decision and wrongly convicted and sentenced the appellants with the offence o f murder; 6) That, the trial court mis-interpreted the principle o f common intention provided for under section 23 o f the Pena/ Code; and 7) The case against the appellants was not proved beyond reasonable doubt. On the adversary side, the respondent Republic was represented by Ms. Xaveria Makombe, learned Senior State Attorney assisted by Mses. Elise James and Magdalena Whero, both learned State Attorneys. At the outset, Ms. Makombe declared the respondent's stance of opposing the appeal and intimated that, they would argue the grounds of appeal in the manner indicated by the learned counsel for the appellants. We propose to address the parties'

submissions in the course of determining the grounds of appeal in the order we have reformulated them above, starting with the grounds of appeal touching on the procedural irregularities. We will, as well, determine the related grounds conjointly. Starting with the first ground, Mr. Ambindwile faulted the trial court for failure to consider the legal status of the 2nd appellant, who at the time of the trial, was a minor (aged 16 years). That, the trial was conducted contrary to section 99 (1) of the Law of the Child Act, Cap. 13 (the Child Act), which requires a trial involving a child to be conducted in the presence of a social welfare officer. To clarify on this point, Mr. Ambindwile referred us to pages 39 and 45 of the record of appeal, where it was indicated that, at the time of arrest, the 2nd appellant was 16 years old. To substantiate his point, he also referred us to page 72 of the same record and clarified further that, even the 2nd appellant's extra judicial statement was recorded in the presence of a social welfare officer one Masinde Masinde. It was his argument that, since the trial was conducted in the absence of the social welfare officer, in respect of the 2nd appellant, the said omission had rendered it a nullity. On that basis, Mr. Ambindwile urged us to nullify the entire trial court's proceedings, quash the conviction and set aside the sentence meted

out against the appellants. Upon being probed as to whether, in 2022, when the trial commenced, the 2nd appellant was still a minor or had already attained the age of majority, although, he readily conceded that during the trial the 2nd appellant had already attained the age of majority, Mr. Ambindwile insisted that, since the committal proceedings were conducted on 15th July, 2020, when he was 17 years old (still a minor) and in the absence of the social welfare officer, the same had rendered the trial a nullity. On their part, Mr. Kishamawe and Mr. Mongo associated themselves with the submission made by their learned friend. In addition, Mr. Kishamawe argued that, pursuant to Rule 11 of The Law of the Child (Juvenile Court Procedure) Rules, 2016 (the Juvenile Rules), a trial court's proceedings involving a child, must be conducted in camera. He then insisted that, since the trial court's proceedings were conducted contrary to section 99 (.1) of the Child Act, read together with Rule i l of the Juvenile Rules, the same is a nullity. Therefore, he also urged us to nullify the entire trial court's proceedings, quash the conviction and set aside the sentence meted out against the appellants and set them free. In her response, although, Ms. Makombe readily conceded that, pursuant to section 99 (1) (d) of the Child Act, the presence of a social welfare officer is required in the

juvenile courts when conducting trials involving a child accused, she was quick to argue that, the 2nd appellant's complaint in this ground is baseless, because when the trial commenced, in 2022, he had already attained the age of majority. To clarify on her point, the learned Senior State Attorney referred us to page 1 of the record of appeal and argued that, the offence was committed on 5th April, 2019, when the 2nd appellant was alleged to be 16 years old and the trial proceedings commenced in 2022, when he was of majority age. As for the committal proceedings which were conducted in 2020, when he was aged 17 years, Ms. Makombe argued that the same was not fatal, as at that stage, an accused person is not required to say anything. She thus insisted that, the 2nd appellant was not prejudiced. She thus, urged us to find that the first ground is devoid of merit. Having perused the record of appeal and considered the arguments advanced by the learned counsel for the parties, we find the submissions made by the learned counsel for the appellants, in respect of the trial court's proceedings, misconceived and not supported by the record. It is apparent at page 50 of the record of appeal that, the trial court's proceedings commenced on 2rid December, 2022. It is also apparent at page 1 of the record of appeal that, the offence was committed on 5th April, 2019. Now, if the 2nd

appellant, in 2019 he was aged 16, it goes without saying that, by 2022, he was already above 18 years. In the circumstances, we agree with the submission made by Ms. Makombe that the trial was properly conducted. As regards the committal proceedings, our finding is consistent with the submissions by the learned counsel for the parties, as the record bears it out that the same were conducted on 15th July, 2020, in the absence of the social welfare officer, when the 2nd appellant was still below the age of majority. We however, with profound respect, unable to agree with the argument advanced by the learned counsel for the appellants that the said omission had occasioned a miscarriage of justice to the 2nd appellant to the extent of rendering the entire committal proceedings and the trial a nullity. This is so, because, it is an acceptable position that, whenever a complaint is raised at the appellate court on the defect, omission and or irregularity in the conduct of a case by the lower courts, the test is whether the alleged defect, omission and or irregularity has occasioned any miscarriage of justice and or parties were prejudiced. In the instant appeal, having assessedthe omission complained of and taking into account the procedure of conducting committal proceedings under section245 (2) of the CPA, we agree with the submission made by Ms. Makombe that the 2nd appellant was

not prejudiced as in terms of the cited section, at the committal proceedings, ah accused person is only informed about the charge facing him, but is not required to enter plea or make any defence to the said charge. It is therefore our settled view that, the 2nd appellant, at that stage, was not prejudiced by the complained omission. We are increasingly of that view because, at the conclusion of the trial and upon conviction, his sentence was properly entered under section 26 (2) of the Penai Code as indicated above. As such, we find the first ground of appeal devoid of merit. In arguing the second, third and fourth grounds, Mr. Ambindwile contended that, the trial court did not consider the 1st and 3rd appellants' defence evidence. He argued that, in his defence found at page 80 of the record of appeal, the 1st appellant stated that, PW4, who testified before the trial court, was not the one who recorded his extra judicial statement. Likewise, Mr. Ambindwile, referred us to page 83 of the same record and argued that, the 3rd appellant testified that, at the police station he was tortured to admit to have committed the offence. It was his argument that, the defence evidence, if considered, would have raised reasonable doubts on the voluntariness of appellants" confessional statements (exhibits P2, P3 and P4). To support his proposition, he cited the case of Msafiri Hassan

Masimba v. Republic, Criminal Appeal No. 302 of 2015 [2016] TZCA 694: [3 August 2016: TanzLII]. Mr. Ambindwilwe further attacked the appellants' extra judicial statements by arguing that, much as the statements by the 2nd and 3rd appellants were not objected to when tendered for admission during the trial, it was upon the trial court to determine if the appellants were free agents when they recorded the same. It was his contention that, the appellants were not free agents when the said statements were recorded, as they were under the supervision of the court clerks namely, Mbugi (for the 1st appellant) and Stephano Haute (for the 2nd and 3rd appellants). He thus urged us to hold that the trial court wrongly convicted the appellants by relying on exhibits P2, P3 and P4. It was the further argument of Mr. Ambindwile that there was no independent evidence to corroborate what was stated by the appellants in the said statements as the said clerks were not called to testify before the trial court. He thus faulted the trial court for failure to draw an adverse inference against the prosecution for failure to do so. He insisted that, since the 1st appellant repudiated his statement, it was necessary for the same to be corroborated. To buttress his proposition, he cited the cases of Muhidin Mohamed Lila @ Emolo & 3 Others v. Republic, Criminal Appeal No. 443 of 2015 [2018] TZCA 269: [13

May 2018: TanzLII] and Bahati Malimi & Another v. Republic, Criminal Appeal No. 324 of 2022 [2024] TZCA 1219: [10 December 2024: TanzLII]. He thus urged us to expunge the appellants' extra judicial statements from the record. On this ground, Mr. Kishamawe and Mr. Mongo associated themselves with the submission made by Mr. Ambindwile with no more. In addition, and in arguing the fifth and sixth grounds, Mr. Mongo faulted the trial court for failure to adequately evaluate the evidence adduced by the parties during the trial and arrived at an erroneous decision and wrongly convicted the appellants with murder while they only confessed to have committed the offence of rape. He contended that, the trial court mis-interpreted the principle of common intention provided for under section 23 of the Penal Code. He insisted that, having found that the appellants extra judicial statements were nothing but the truth, it was wrong for the trial court to conclude that there was a common intention among the appellants and the other two accused persons to commit the murder, while in the said statements they exculpate themselves from that offence. That, since there was no common intention to murder the deceased, section 23 of the Penal Code was not applicable. To support his argument, he cited the cases of Abdi Aii & 2 Others v. Reg mam [1956] E.A.C.A. 573 and Augustmo Orete & Others v. Uganda

[1966] E.A 430. Finally, and based on their submissions, the learned counsel for the appellants urged us to allow the appeal, quash the conviction and set aside the sentence imposed on the appellants and set them at liberty. In her response, Ms. Makombe challenged the submission made by the learned counsel for the appellants by referring us to pages 114 to 116 of the record of appeal where, the trial court considered the appellants' defence evidence and found that, the same was, nothing but, an afterthought, hence incapable of weakening the prosecution's case. She, however, urged us to step into the shoes of the trial court and re­ evaluate the same and make our own findings. On the issues of involuntariness of the appellants' extra judicial statements, Ms. Makombe referred us to page 63 of the record of appeal and argued that, during the trial, the point of objection raised by the learned counsel for the 1st appellant was not on the issue of involuntariness of recording such statement but that, it was recorded contrary to the Chief Justice's Guide for Justices of Peace (the CJ's Guide). As for the statements by the 2nd and 3rd appellants, she referred us to pages 71 to 73 of the record of appeal and argued that, the same were admitted without any objection. It was her argument that, since the said issues were not raised by the appellants during the trial when the said

statements were admitted in evidence to enable the trial court to conduct trial within trial as required by the law, the act of the learned counsel for the appellants to raise such issues at this stage, is purely an afterthought. She insisted that, for the appellants having been raised the said issues during their defence evidence, it was already late, as issues of involuntariness of recording such statements were required to be raised at the stage of admissibility of the same and not otherwise. To support her arguments, she cited the cases of Nyerere Nyague v. Republic, Criminal Appeal No. 67 of 2010 [2012] TZCA 103: [21 May 2012: TanzLII] and Mayunga Mwenelwa v. Republic, Criminal Appeal No. 312 of 2020 [2024] TZCA 605: [19 July 2024: TanzLII]. As regards the complaint that, the appellants were not free agents for being placed under care of the court clerks, Ms. Makombe disputed that complaint by referring us to paragraph 3 of the CJ's Guide and argued that the same was a requirement and it was done properly to comply with the said Guide. She thus urged us to find that the submissions by the learned counsel for the appellants, on that aspect, is misconceived. To bolster her proposition, she cited our previous decision in Hamis Chacha Wisare v. Republic, Criminal Appeal No. 207 of 2019 [2023] TZCA 17590: [1 September, 2023: TanzLII]. She then urged us to find that the CJ's

Guide was not flouted but followed to the letter and therefore the appellants' extra judicial statements were correctly relied upon by the trial court to mount their convictions. She insisted that, the prosecution case was proved beyond reasonable doubt by the evidence of PW1, PW2, PVV4 and PW5 which was corroborated by the appellants' extra judicial statements (exhibits P2, P3 and P4), where the appellants themselves clearly narrated on how they formed a common intention to kill the deceased so that they will not be identified. That, having established its case against the appellants, the prosecution found it unnecessary to summon the said court clerks and or any other witness. Based on her submission, she urged us to find the appellants' appeal unmerited and dismiss it in its entirety. For a start, we wish to reiterate that, it is the duty of the trial court to subject the entire evidence on record to scrutiny, which entails considering the defence evidence before making any finding of guilty. Where the trial court fails to do so, the first appellate court is enjoined to do so in its role to re-evaluate the whole evidence on record with a view to making its own findings of facts and conclusion - see D.R. Partdya v. Republic [1957] EA 336 and Demeritus John @ Kajuli & 3 Others v. Republic, Criminal Appeal No. 155 of 2013 [2014] TZCA 2172: [3 March, 2014: TanzLII]. Having

closely perused the record of appeal, we agree with Ms. Makombe that, at pages 114 to 116 of the record of appeal, the trial court adequately considered the appellants' defence against the prosecution case and rejected it. That apart, we have revisited the testimony of PW4 and PW5 who tendered the appellants' extra judicial statements before the trial court. It is on record that, during the trial, when PW4 and PW5 tendered the said statements for admission, the advocates, who represented the appellants then, did not raise the issues which were raised by the learned counsel for appellants in this appeal This can be evidenced, at page 63 of the record of appeal, where the advocate for the 1st appellant only objected to the admission of the 1st appellant's statement in relation to non-compliance with the Cl's Guide and not that the same was invalid or involuntarily made. Equally, at pages 72 and 73 of the same record, when PW5 tendered the statements for the 2nd and 3rd appellants for admission, the advocate, who represented them then, did not object to its admission in evidence and/or raise an issue that the same was invalid or involuntarily made. It is also clear to us that, even the 2nd and 3rd appellants who were as well before the trial court, did not complain or indicate that they involuntarily recorded such statements but they raised the same during their defence evidence

which was already too late and an afterthought. It is a settled law that the contents of an exhibit which was admitted without any objection from the appellant, were effectually proved on account of failure to raise an objection at the time of its admission in evidence. In the case of Emmanuel Lohay & Another v. Republic, Criminal Appeal No. 278 of 2010 [2013] TZCA 292: [4 March, 2013: TanzLII], the Court, when faced with an akin situation, held that: "It is trite Jaw that if an accused person intends to object to the admissibility o f a statement/confession, he must do so before it is admitted and not during cross- examination or during defence - Shihoze Semi and Another v. Republic (1992) TLR 330. In this case, the appellants 'missed the boat by trying to disown the statements at the defence stage. That was already too late. Objectionsy if any, ought to have been taken before they were admitted in e v id e n c e [Emphasis added]. It is our further view that, the above principle is also not without rationale, it is based on another principle that an appellate court cannot decide on matters that were not raised nor decided upon during the trial. See for instance the cases of Abedi Mponzi v. Republic, Criminal Appeal No. 476 of 2016 [2016] TZCA 2025: [16 May, 2016: TanzLII]. and Bundala @ Swaga v. Republic, Criminal Appeal No. 416 of 2013 (unreported). Therefore, there is no

doubt that, the act of the learned counsel for the appellants to raise new issues on the objection of the admissibility of the appellants' extra-judicial statements at this stage offends the above settled principles. For avoidance of doubt, we have thoroughly perused the contents of the said extra judicial statements and found that they clearly describe the circumstances and the manner in which the deceased met her death. They are so detailed that the events described therein could have only been given by the person who had the knowledge of the entire plan and the mission of killing the deceased. The said statements also show the role played by each of them. For the sake of clarity, we have found it apposite to reproduce part of the 1st appellant's extra judicial statement as a good illustration of the above analysis. The 1st appellant statement is couched thus: "Tarehe 5/4/2019 saa 10 jioni nilikuwa kwenye kilabu cha pombe kilichoko Kijiji cha Ikwete Hi nikanywe pombe ya kienyeji na niHagiza lita moja nikanywa nikiwa na wenzangu. Alikuja SaidI Miwaie tukanywa naye na watu wengine wallkuja tukanywa pamoja akiwcmo marehemu Edna Nguku. Nahisi Saidi aiikuwa na ugomvi na marehemu. Tuiikaa mpaka saa 4 usiku Edna aiitoka na Saidi akasema jamani tumfuate yuie mama tukiwa watu watano yaani mimi, Said1 na wenzetu watatu na Saidi ai/tutanguiia. Tuiipomfikia, tuiikuta amemtoa Edna

ndani kwake na kumvutia nje, aiituambia tuanze kumbaka. Ndipo James Mvikufe aiianza kumbaka yuie mama> aiipomaiiza aiifuata Samwel Kipela, aiipomaiiza aiifuata mwinglne ambaye jina simkumbuki na wa mwisho kumbaka yule mama nilikuwa mimi. Niiipomaiiza yuie mama a/ianza kupiga keiele kuwa tumemtambua. Baada ya hapo Said Miwaie aiisema kwa kuwa ametutambua tupoteze Ushahidi. Ndipo Samwel Kipela alimpiga yuie mama na jiwe akamwangusha chini akazimia na wakati huo Saidi aiikuwa na tochi atitafuta vimti vya aiizeti akamletea Samwel. Kisha Said akamwambia poteza ushahidiSam wel akamtumbukiza yule mama fimbo sehemu za siri na fimbo Hitokea kwenye ubavu, na ndipo Wkaanza kukimbia kueiekea majumbani kwetu." It is noteworthy that, the 2nd and 3rd appellants' extra judicial statement are couched in almost similar tones regarding appellants' involvement in the murder incident. In the circumstances, and taking into account that the 2nd and 3rd appellants did not challenge the admissibility of the said statements during the trial, we agree with Ms. Makombe that the appellants' complaints under the second, third and fourth grounds of appeal are unfounded. It is on record that the appellants' statements corroborated the evidence of PW1, PW2, PW3, PW4 and PW5. On the complaint that the prosecution failed to summon the material witnesses to testify during the trial, we equally agree with

Ms. Makombe that, since in their own confessions the appellants clearly narrated on how they actively participated in the process of killing of the deceased, there was no need to call those other witnesses. See our decision in Mohamed Haruna @ Mtupeni & Another v. Republic, Criminal Appeal No. 259 of 2007 [2010] TZCA 250: [2 June, 2010: TanzLII], Joseph Deus @ Sahani & Another v. Republic, Criminal Appeal No. 564 of 2019 [2022] TZCA 411: [11 July, 2022: TanzLII]. together with our recent decision in Marko Kivamba v. Republic, Criminal Appeal No. 18 of 2022 [2025] TZCA 191: [13 March, 2025: TanzLII]. That said, we find the second, third and fourth grounds devoid of merit. We are mindful of the fact that, in the fifth and sixth grounds, Mr. Mongo faulted the learned trial Judge for failure to adequately evaluate the evidence on record and mis-interpreted the principle of common intention under section 23 of the Penal Code. With profound respect, we are unable to agree with Mr. Mongo on these points. In the case of Godfrey James Ihuya v. Republic [1980] T.L.R. 197, the Court considered the applicability of the common intention principle under section 23 of the Penal Code and stated that: "To constitute a common intention to prosecute an unlawful purpose, it is not necessary that there should have been any concerted agreement between the accused persons prior to the attack o f the

so-called thief. Their common intention may be inferred from their presencetheir actions, and the omission of any of them to dissociate himself from the assau lt " [Emphasis added]. In the instant appeal, according to the appellants7 extra judicial statements, they were not only present at the scene of crime, and fully participated in the initial unlawful act, but they also accepted the proposed plan of killing the deceased to conceal the evidence for them not to be identified. It is also clear that, apart from watching the 4tfl and 5th accused persons killing the deceased, they did not take any measures to prevent the said killing and or report the said matter to the responsible authorities. The appellants' conducts, prior, during and after the murder incident, signified their guilty conscience on the unlawful acts they committed towards the deceased. So, they participated by their actions and omissions as there is nothing in their statements to indicate that they were not in the killing plan and or stopped the 4th and 5th accused persons to execute the same. We even wonder why and how the 4th and 5th accused persons were discharged. Anyhow, that said, and being guided by the above authorities, we go along with Ms. Makombe's submission and consequently, also find the fifth and sixth grounds of appeal devoid of merit Consequently, and looking at the totality of the evidence, we entertain no doubt that with the available evidence, the trial court adequately evaluated the evidence adduced before it and correctly held that the case against the appellant was proved beyond reasonable doubt. For the foregoing reasons, we find the appeal devoid of merit and hereby dismiss it in its entirety. DATED at IRINGA this 21st 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 21st day of March, 2025 in the presence of Mr. Desdery Kishiwa, learned counsel for the 1st appellant, Mr. Lazaro Hukumu holding brief for Mr. Cosmas Charles Kishamawe and Mr. Jally Willy Mongo, all learned advocates for the 2nd & 3rd appellants respectively and Mr. Sauli Makori, learned State Attorney for the respondent/Republic; is hereby certified as a true copy of the original.