CRIMINAL APPEAL NO 630 OF 2021 OMAHE OMAHE RYOBA VS THE REPUBLIC

THE COURT OF APPEAL OF TANZANIA AT MUSOMA fCORAM: SEHEL. J.A.. KAIRQ. 3.A. And, KHAMIS, J.A.) CRIMINAL APPEAL NO. 630 OF 2021 OMAHE OMAHE @ RYOBA............................. ......................... APPELLANT VERSUS THE REPUBLIC................. .................................................. .RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania atTarime) ( Kahvoza, J.1 dated the 15th day of July, 2021 in Criminal Sessions No. 75 of 2020 JUDGMENT OF THE COURT 17th Feb & 14th March, 2025 KAIRQ, 3.A.: Omahe Ornahe @ Ryoba, the appellant herein, stood charged with the offence of murder contrary to sections 196 and 197 of the Penal Code, Cap 16 R.E. 2019 (the Penal Code). The information laid by the prosecution alleged that, on 22nd May, 2012 at Nyamakendo village within Serengeti District in Mara Region, the appellant murdered one Ghati s/o Bhoke @ Magige. The appellant pleaded not guilty to the charge. However, after a full trial, he was convicted and sentenced to suffer death by hanging. In essence, the substance of the prosecution case as obtained from the record of appeal indicates that, the appellant, the deceased and one Magige Ryoba were good friends. However, a misunderstanding ensued between the appellant and Magige Ryoba on one side and the deceased on the other hand. On the fateful date, the appellant and Magige Ryoba, each holding machete, went to the house of Bhoke Magige, the deceased's father (PW5) where the deceased also resided, with the aim of confronting the deceased. In the house, they found PW5 and informed him a quarrel with his son (the deceased). (PW5) beseeched them to stop quarreling of which they heeded and the dust was settled. By that time, the deceased was also at home. The duo left with the deceased to cut grass in the bush. The appellant and Magige Ryoba were each holding a machete and the deceased had a sickle. However the deceased, did not come back home. Later on, PW5 was informed by one Wambura, now deceased, that his son was killed. They went to the scene of crime and found the deceased's neck was almost separated from the body. The body was lying on the ground lifeless. The appellant and Magige Ryoba were the key suspects, but disappeared after the incident. Subsequently, the appellant was apprehended by militiamen following the order of Joel Kiberenge Mwita (PW2), a village chairman who saw him in the village after about seven years since the incident occurred. PW2 reported about the appellant's arrest at Machochwe Police Post following which a policeman with force No. G. 5892 PC Ezra Msogwa (PW3) went to the village and picked him for onward movement to Mugumu Central Police Station. It was a policeman with force No. G.6069 DC Elias (PW4), who interrogated the appellant and wrote his cautioned statement in which he admitted to kill the deceased in a company of his friend. During trial, the statement was admitted in evidence as exhibit P2. According to PW4, the appellant signed his statement after it was read over to him and verified its correctness. PW4 testified that, there was no quarrel between the appellant and the deceased and no efforts were engaged to mediate them. When cross examined, PW4 conceded that, the appellant was taken to a Justice of Peace and clarified that he did not confess the commission of the offence. He also denied the allegation from the appellant of torture against him. When further cross examined, PW4 stated that, the appellant did not append his signature at page 2 of the cautioned statement (exh. P2). When testifying, PW2 told the trial court that, he was informed by the deceased's family members that, the appellant and Magige Ryoba had a quarrel with the deceased, but the same was settled by the family. PW2 was one of the villagers who went to the bush to search for the deceased's body and witnessed a big cut wound in the neck which almost separated the head from the body. The police went to the scene of crime in the company of Albert Kasanga Mnalimi, a clinical officer (PW1), who conducted an autopsy on the deceased's body. PW1 testified that, the deceased's neck was cut to the extent that, the head was separated from the trunk and the deceased's left arm was partially cut. He concluded that, the death was caused by severe bleeding. He prepared the postmortem examination report which was tendered in evidence as exhibit PI. In his defence, the appellant disassociated himself from the offence and raised a defence of <?//Zvclaiming that, he did not leave his house on the fateful day. The appellant refuted the confession statement and stated that he recorded his cautioned statement (exh. P2) after he was tortured. He further told the trial court that, he did not confess before Justice of Peace because he was a free agent. After closing the respective cases, the trial Judge summed up the case to the gentlemen assessors who in response, unanimously returned a verdict of guilty against the appellant. The trial Judge concurred with the unanimous verdict of the assessors and found the appellant guilty based on the circumstantial evidence and his cautioned statement (exh. P2). He was therefore convicted and sentenced as indicated above. Aggrieved, the appellant has come to this Court to challenge both, the conviction and sentence armed with four sets of memoranda of appeal lodged on 8th December, 2021, 26th September, 2023, 27th January, 2025 and 16th February, 2025. When the appeal was called on for hearing, Mr. Leonard Elias Magwayega, learned counsel, appeared for the appellant, whereas Mr. Nico Malekela teamed up with Msses. Happines Machage and Natujwa Bakari, all learned State Attorneys, to represent the respondent Republic. At the outset, Mr. Magwayega prayed to abandon the first three memoranda of appeal and intimated that, he would argue the last supplementary memorandum of appeal comprising of 3 grounds. The three grounds were addressed conjointly into which the main complaint hinged on the failure by the prosecution to prove the case beyond reasonable doubt. Clarifying in support of the complaint, Mr. Magwayega submitted that, none of the prosecution witnesses eye witnessed the killing of the deceased by the appellant. Further to that, none of the witnesses mentioned the appellant to be a killer. Besides, argued the learned counsel, no witness disclosed names of the persons involved in bringing home the body of the deceased from the bush where the alleged killing occurred. To him, the deceased death remained unproven without the said explanation. Mr. Magwayega went on to submit that, the prosecution also failed to show the motive behind the killing since the alleged quarrel between the appellant and his friend on one side and the deceased on the other side was resolved as per the testimony of PW2 and PW5. It was also the learned counsel's argument that, the circumstantial evidence into which the prosecution case hinged on was not proved. He contended that, the required connection between the alleged circumstances and the commission of the alleged offence by the appellant is missing, leaving the offence unproven. He referred us to the case of Ally Bakari and Pilly Bakari vs Republic (1992) T.L.R. 10 to fortify his argument. Faulting the trial Judge's finding that exh. P2 was voluntarily given, Mr. Magwayega argued that, since the appellant told the trial court that he was tortured to confess, it was improper for the trial Judge to rely on exh. P2. To him, the finding of the trial Judge that, the appellant's advocate was required to object the admission of exh. P2 when tendered during trial, is equally incorrect as that amounts to punishing the appellant for the mistakes of his advocate instead of looking for substantive justice. In a move to bring his argument home, the learned counsel submitted that, the appellant was taken to the Justice of Peace where he denied to have committed the offence while he admitted before the police station as per exh. P2. It was the argument of Mr. Magwayega that, those pieces of evidence denote that, indeed, the appellant was tortured at the police station to obtain his confession to the killing of the deceased and therefore, the trial court was obliged to consider the evidence as a whole before affording exh. P2 any evidential value and relying on it to ground conviction for a reason that, the document was admitted in evidence without objection. He added that, if the prosecution had no ill motive, why didn't they bring the extra judicial statement in court and summon the Justice of Peace so as to afford the trial court a chance to compare the contents in exh. P2 and the extra judicial statement Based on his submission, Mr. Magwayega impressed on us to rule out that, exh. P2 and the prosecution witnesses' evidence do not create circumstances that irresistibly point an accusing finger to the appellant and allow this appeal. In his reply, Mr. Malekela started by expressing the respondent's position to oppose the appeal. Elaborating, he submitted that, though no witness has witnessed the killing of the deceased by the appellant, but it is a settled law that not every homicide incident has to be eye witnessed. He cited the case of Mathias Bundala vs Republic, Criminal Appeal No. 62 of 2004 [2007] TZCA 16 in which the Court obsen/ed that, if every killing has to be eye witnessed, then many homicides will remain unresolved. He therefore concluded that, the absence of an eye witness in this case can not exonerate the appellant from guiltiness. Mr. Malekela further submitted to be untrue the learned counsel's argument that, none of the prosecution witnesses was involved in taking the deceased's body home after it was discovered in the bush. He referred us to page 21 of the record of appeal which shows how PW5 was actively involved in taking the body home and thus the argument is without merit. As regards Mr. Magwayega's argument that none of the prosecution witnesses mentioned the appellant to be the killer of the deceased, Mr. Malekela submitted that, the case at hand depended on circumstantial evidence supported by exh. P2. He insisted that, even the appellant when cross examined at page 25 of the record, admitted to have given his cautioned statement at the police station. He went on to argue that, though Mr. Magwayega argued that the appellant was tortured before giving his statement, but PW4 denied to beat the appellant and referred us to page 17 of the record of appeal. Mr. Malekela, further refuted Mr. Magwayega's argument that, there was no circumstantial evidence to connect the appellant with the offence. He elaborated that, on the fateful day, the appellant and Magige Ryoba who is still at large visited PWS's home where the deceased was also present and told him about the dispute which ensued between them. He went on to submit that, the said dispute was resolved by PW5 and the trio left together. That when leaving, the appellant and his friend were each holding a machete and the deceased had a sickle for cutting grass. It followed that, the deceased never came back home and instead, he was found murdered in the bush. He contended that, the appellant was the last person to be seen with the deceased alive, but did not give plausible explanation on the circumstances leading to his death, thus he cannot disassociate himself with the offence. He cited the case of Anthony Kayaga @ Mnibhi vs Republic, Criminal Appeal No. 550 of 2019 [TZCA] 284 TANZLII] to fortify his argument. Mr Malekela went on to submit that, the appellant disappearance for over 7 years immediately after the incident confirms his involvement in killing the deceased. On those bases, he concluded, the trial court was correct to find him guilty of murder and there is nothing to fault the trial court in its decision. He implored the Court to find the appeal without merit and dismiss it. When invited for a rejoinder, Mr. Magwayega repeated his submission in chief insisting that the case was not proved to the required standard, reiterating his prayer to have the appeal allowed. Having heard the rival arguments by the parties' counsel and examined the record before us, the main issue for our determination is whether or not this appeal is meritorious. From the outset, we wish to re-state our mandate pursuant to Rule 36 (1) (a) of the Tanzania Court of Appeal Rules, 2009 whereby, this being a first appeal, it is a form of re-hearing. As such, we are obligated to re-evaluate the entire evidence on record, further subjecting the same to a critical scrutiny and if appropriate, arrive at our own conclusion of fact. [See: Reuben Mhangwa and Another vs Republic, Criminal Appeal No. 99 of 2007 [2019] T7CA 341 and Menroof January Haule vs Republic, Criminal Appeal No. 121 of 2022 [2024] TZCA 69]. (Both from TANZLII). In the matter at hand, there is no dispute that none of the 10 prosecution witnesses eye witnessed the appellant committing the offence. Therefore, the prosecution depended on circumstantial evidence to prove the case. On this account, re-stating the principles governing the reliability of circumstantial evidence is inevitable. It is trite that, in a case depending entirely on circumstantial evidence, before an accused person can be convicted the trial court must find that, the inculpatory facts are inconsistent with the innocence of the accused person and incapable of no other reasonable hypothesis than that of guilt. Further to that, the court, before drawing the inference of guilty from circumstantial evidence, has to ensure that, there are no other co-existing circumstances which would weaken or destroy the inference. [See: John Magula Ndongo vs Republic, Criminal Appeal no. 18 of 2004 (unreported) and Jimmy Runangaza vs Republic, Criminal Appeal No. 159B of 2017 [2018] TZCA 188 TANZLII. The above shall be our guiding principle in this appeal in establishing whether or not the available circumstantial evidence irresistibly points to the guilt of the appellant. The evidence on record which the learned trial Judge relied upon to convict the appellant are one, the appellant's cautioned statement (exh. P2) he written before PW4 and two, the circumstances surrounding the 11 case like the events before and after the incident. Mr. Magwayega has faulted the admissibility and reliance of the trial court on exh. P2 arguing that, it was not made voluntarily by the appellant following his claim for torture before and during its making. The argument was disputed by Mr. Malekela who joined hands with the trial Judge in his findings at page 63 of the record of appeal that, the statement was voluntarily made because it was not objected when tendered. In resolving the rival contentions by the learned counsel for the parties, we shall be guided by the case of the Tuwamoi vs Uganda (1967) E.A. 91 wherein the defunct East Africa Court of Appel in an akin circumstance observed as follows: "The onus o f proof in any criminal case is on the prosecution to establish the guilt o f an accused person, A conviction can be founded on a confession o f guilty by an accused person. The prosecution must first prove that this confession has been properly and legally made. The main essential for the validity o f a confession is that it is voluntary..Jf the court is satisfied that the statement is properly admitted and so admits it, then when the court is arriving at its judgment it will consider all the evidence before it and ail the circumstances o f the case, and in doing so will consider the weight to be placed on any confession that has been admitted. In assessing a confession, the main consideration at this stage will be/ is it true? And if the confession is the only evidence against an accused, then the court must decide whether the accused has correctly related what happened and whether the statement establishes his guilt with that degree o f certainty required in criminal case. This applies to all confessions whether they have been retracted or repudiated or admitted, but when an accused person denies or retracts his statement at the trial, then this a part o f circumstances o f the case which the court must consider in deciding whether the confession is fri/e"[emphasis added] According to record, it is true that, the cautioned statement was tendered without objection. The appellant when defending himself admitted that the statement belonged to him. He was however categorical that he confessed following the torture he experienced before and during the writing of it. The appellant went ahead and told the trial court that, though he was taken to the Justice of Peace, he did not confess before him as he was a free agent. The fact that he was taken to the Justice of Peace but did not confess was also testified by PW4. It means, the appellant has retracted his statement. Yet, the prosecution neither tendered the statement made to the Justice of Peace, nor summoned him/her. In the circumstances where the appellant made more that one statement, it was important for the prosecution to tender all the statements made by the accused so that the trial court could have all the relevant facts before it when it comes to decide the vital points as to whether or not the contents of any of the statements are true. [See: Tuwamoi vs Uganda] (supra). That apart, flowing from the observation in Tuwamoi vs Uganda (supra), the pertinent question for our address therefore is whether the cautioned statement of the appellant (exh. P2) is true, thus amounts to confession. If the answer is in the affirmative, whether the inculpatory facts in exh. P2 are inconsistent with the innocence of the appellant and incapable of explanation upon any other reasonable hypothesis than that of guilt. We find it apposite to reproduce the relevant part of exh. P2 appearing at page 72 of the record of appeal for ease of reference:- "Nakumbuka mnamo tarehe 21/05/2012 majira ya saa 18:30 hrs. huko katika maeneo ya Kijiji cha Nyamakendo Wilaya ya Serengeti Mkoa wa Mara muda huo mimi nilikuwa nyumbani ndipo akaja Magige s/o Chacha @ Rotera akaniambia kwamba Ghati s/o Bhoke atiiba Nyaya zangu za kutegea wanyama niHpomwambia anirudishie nyaya zangu akasema hajaiba ndipo mama yake Bhoke w/o Bhoke akamwambia Ghati s/o Bhoke kwamba "Nyaya umechukua mrudishie mwenzako, umechukua nakuona" akaanza kumpiga mama yangu na niiipo jaribu kuachanisha huyo Ghati s/o Bhoke akachukua kisu na kunichoma nacho ubavuni akavua shati fake na kunionyesha jeraha take baada ya hapo akatoa bhangi tukavuta sana akasema kaka yangu huyo ameenda kung'oa nyasi twende tukamuue baada ya hapo mimi nilichukua panga moja na yeye akachukua panga Ungine tukamfuata kuie alikokuwa anang'oa nyasi ambapo n i ndani ya Hifadhi ya Taifa ya Serengeti kwenye Mto Chingasi na tuiipofika eneo h ito tulimkuta akiwa anang'oa nyasi. Tukamnyemeiea na tu/ipomkatibia tulimvamia ghafia na tukaanza kumshambulia kwa kumkata mapanga ambapo Magige s/o Chacha aiimkata mguuni pamoja na shingoni na mimi naye niiimkata mkononi na akapoteza maisha pale paie. Baada ya hapo k/ia mtu a/ipita kivyake. Mimi nifirudi nyumbani na Magige s/o Chacha naye akaenda kusikojuiikana. Lakini mimi niliamua Kwenda nyumbani kwao na Magige s/o Chacha nikamkuta baba yake na Magige s/o Chacha ambaye n i Chacha s/o Rotera nikamwambia mtoto wako amemuua Ghati s/o Bhoke kwa kumkata mapanga. Wakati tunang'oa nyasi huko porini kwenye Mto Chingasi ndani ndani ya Hifadhi ya Taifa ya Serengeti na baada ya kutekeleza hito aiikimbia basi watu walifuata maiti na kuja kuzika mimi nikaendelea kuishi paie kijijini na sikukimbia nikiamini kwamba hakuna mtu anayejua kama nimeshiriki tukio hito kwani Magige s/o Chacha alikuwa amekimbia. Na tarehe 16/12/2019 muda wa saa 13:40 hrs nikiwa center nilikamatwa na askari polisi kutoka Kituo cha Polisi Machochwe nikapelekwa Kituo cha nilipofika kituoni nikaambiwa una kesi ya murder ndipo nikachukuliwa hadi Kituo cha Polisi Mugumu kwa hatua zaidi. Hayo ndiyo maetezo yangu sahihi yangu Omahe Omahe Ryoba". [Emphasis added] Our scrutiny to the facts contained in exh. P2 as shown above shows uncertainty as regards the name of the person alleged to have been killed by the appellant, thereby creating a mix-up of unanswered questions. It was stated in exh. P2 that, the appellant together with Ghati s/o Bhoke went to kill a brother of Ghati s/o Bhoke whose name was not disclosed. Surprisingly, Ghati s/o Bhoke is the mentioned deceased in the case at hand. As to how the deceased got killed as well after killing the anonymous brother is an enigma, which creates confusion as to which deceased was the appellant referring to while confessing. Again, it is not clear if Magige Ryoba mentioned by PW5 to have visited his house and accompanied the deceased and the appellant to the bush is the same Magige s/o Chacha @ Rotera mentioned in exh. P2. If yes, we do not see him taking part in the killing of the deceased herein, rather, the deceased was the one who killed his undisclosed brother. If not, then the assertion that the trio left together crumbles as the "Magige" in exh. P2 followed the appellant at his home to inform him that the deceased has stolen his animal traps. As if that is not enough, PW5 told the trial court that the deceased held a sickle when he accompanied Magige s/o Ryoba and the appellant to the bush, but during the killing, he had a machete and cut the unknown person to death. In the wake of the pointed-out confusion as regards the name of the deceased the appellant was alleged to have admitted to kill, coupled with incoherent evidence from the prosecution witnesses, we are constrained to hold that exh. P2 is a total confusion and raises more questions than answers. To crown it all, we also noted the variance of the charge and the evidence as regards the date of incident. While the particulars of the charge indicate the date to be 22nd May, 2012, exh. P2 indicates it to be 21st May, 2012. Which means, the contents in exh P2 has not correctly related to what happened, thus not true and on that account, exh. P2 does not amount to confession. As regards the circumstances surrounding the case like, the events before and after the incident, the issue is whether the circumstantial evidence connects the appellant with the offence charged. Mr. Magwayega argued that the circumstances do not connect the appellant with the offence while on the other hand, Mr. Malekela stated that they do. We will not be detained on this issue having found exh. P2 does not amount to a confession. To say the least, we join hands with Mr. Magwayega on this aspect due to disjointed pieces of evidence: It is on record that, on the fateful day, the appellant and Magige s/o Ryoba visited PWS's home where the deceased was also present and told PW5 about the dispute which ensued between them. The said dispute was resolved by PW5 and the trio left together. It is noteworthy that, PW4 denied the existence of any dispute as alleged together with the alleged mediation. That, when leaving, the appellant and his friend were holding a machete each and the deceased had a sickle for cutting grass. The deceased never went back home, but later, he was found to have been killed in the bush. Mr. Malekela contended that, the appellant was the last person to be seen with the deceased alive. However, the contradiction between PW4 and PW5 renders the doctrine inapplicable. As such, the cumulative circumstances do not form a complete chain to lead to a conclusion that the crime was committed by the appellant and no one else. That notwithstanding, even if it was true that the appellant accompanied went together with the deceased, still the suspicion would not in law suffice to a ground conviction. The Court observed the following when faced with a similar scenario in Richard Mtengule, vs Republic, Criminal Appeal No. 73 of 1991 (unreported): ”... The fact that the appellants were the last known persons to have been with the deceased casts very grave suspicious on them, but it is in itself not conclusive proof that they killed the deceased..." It is a settled principle that, suspicion however ingenious, can never substitute for proof beyond reasonable doubt. See also: Nathaniel Alphonce Mapunda and Another vs Republic [2006] T.L.R. 391 and Mariki Peter Olomi @ Mapanki vs The Republic, Criminal Appeal No. 393 of 2019 [2023] TZCA 1759 1 TANZLII. In fine, we allow this appeal in its entirety. The conviction for murder is hereby quashed and set aside. We also set aside the death sentence meted out to the appellant and order his release from custody forthwith unless he is otherwise lawfully held. DATED at DAR ES SALAAM this 6th day of March, 2025. B. M. A. SEHEL JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Judgment delivered this 14th day of March, 2025 in the presence of Mr. Jonas Kivuyo learned State Attorney for the respondent/Republic who also took brief for Mr. Leonard Elias Magwayega, learned counsel for the appellant via Video Conference from Musoma High Court; is hereby certified as a true copy of the original.