CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT MWAN2A fCORAM! MUGASHA. J.A., MLACHA. 3. A. And NGWEMBE, 3.A. CRIMINAL APPEAL NO. 272 OF 2021 REUBEN KAKINDA.... 1st APPELLANT METHOD CHEREHANI , 2nd APELLANT VERSUS THE REPUBLIC RESPONDENT (Appeal from decision of the High Court of Tanzania at Mwanza) (Rumanvika. 3.) dated the 25th day of March, 2021 in Criminal Sessions Case No. 17 of 2016 JUDGEMENT OF THE COURT 5th & IS’” August, 2024 MLACHA. 3.A.; The appellants, together with one Sadik Kabale who is not in Court, were charged of murder contrary to section 196 and 197 of the Penal Code (Cap 16 R.E. 2002) at the High Court of Tanzania sitting in Mwanza in Criminal Sessions case No. 17 of 2016. According to the information laid against them, it was alleged that they murdered Kulwa Kapalata on 22/04/2014 at 19:00 hours at Itale village, within Geita District and Region. They were found guilty, convicted and sentenced to the mandatory death sentence. Sadik Kabale was found not guilty and set free. l The case for the prosecution was based on 4 witnesses who tendered 5 exhibits. It can be presented as follows: D 8307 SGT Zakayo (now retired) (PW2) while in his normal duties at Geita Police Station on 20/05/2014, he recorded the statement of Makoye Elias (exhibit P2) and the cautioned statement of the 1st appellant (exhibit P3). The 1st appellant was also taken to Ahmed Hussein Abdallah (PW4), the Ward Executive Officer (WEO) of Kalangalala on 21/05/2014, who recorded his extra judicial statement (exhibit P5). The 2nd appellant confessed before E. 1454 D/SGT Shabani (PW1) who recorded his cautioned statement (exhibit PI). The deceased's body was examined by Dr. Christopher Yahaya Matola (PW3) who found her with deep cut wounds on the head involving a fracture of the skull, a cut on the neck and a cut on the right arm which was also fractured. His opinion was that death was caused by excessive bleeding out of the cut wounds. The appellants denied being involved in the commission of the crime. The tale of the 1st appellant was that he was at home on 22/05/2014 when policemen stormed in and put him under arrest. They took him to the police station where he was beaten up severely and forced to put his thumb print on a statement whose contents he did not know. He denied to have made any confession to the police or justice of peace. 2 The story of the 2nd appellant was that he was arrested by the police and a people's militia (mgambo) on 19/05/2014, morning hours, as he was retiring back home from a place where he had gone to distil a local brew. They accused him of being in unlawful possession of an illicit drink and demanded a bribe of TZS. 600,000.00. He told them that he had only TZS. 50,000.00 which they declined to receive and sent him to Geita Police Station. He was later sent to the investigation room where he found hoes, clubs and ropes. They demanded his personal particulars which he provided. They later threatened him with a club called "Mama Mkanye Mwanao" and forced him to sign on the statement. He complied. The appellants were thereafter sent to court. The trial Judge found that the prosecution had proved the case beyond reasonable doubts based on the confessions, medical evidence, and points he raised in the judgment. He convicted and sentenced them to suffer death by hanging as intimated above. Aggrieved, the appellants have come to the Court by way of an appeal. The appellants have a substantive memorandum of appeal and 2 supplementary memoranda of appeal. For reasons which will be apparent soon, we will not reproduce the memorandum of appeal, except for ground two. Ground 2 of the memorandum of appeal reads: 2. The Hon. TrialJudge seriously erred in law by omitting to conduct a trial within trial upon an objection by the appellants counsel against the admission o f exhibit PI, an omission that amounted to a gross denial o f fair trial to the 2ndappellant." Supplementary memorandum of appeal for the 1st appellant reads: "1. That the learned trial judge erred in law and fact for convicting the appellants without analysing and evaluating the evidence on record and without giving reasons for the conviction. 2. That the learned trial judge erred in law and fact for convicting the appellants based on some principles and theories o f law on which the assessors were not addressed before giving their opinions. 3. That the learned trial judge erred in law and fact when he failed to explain to assessors their duty before hearing o f prosecution's case and thereby assessors failing to give their opinions as per legal requirements. 4. That, the assessors opinion were received in contravention o f the provisions o f section 298 (1) o f the CPA which require each assessors to give his opinion individually. 5. That the learned trial judge erred in law and fact when he failed to address the appellants on their rights after a ruling on a case to answer in contravention o f section 293 (2) o f the CPA. 6. That the learned trial judge erred in law and fact to convict the 1st Appellant by relying only on his cautionedstatement and extra-judicial statement which was also wrongly taken, tendered and received in evidence. 7. That the learned trial judge erred in law and fact to convict the 1st Appellant while the prosecution side failed to prove their case beyondreasonable doubt. 8. That the learned trialjudge erred In fact to convict the 1st Appellant in a case that was unfairly conducted." The supplementary memorandum of appeal for the 2ndappellant reads: "1. That the trial court erred in law and fact for failure to consider the defence case. 2. That the case against appellants was not proved beyondreasonable doubt. 3. That the trial court erred in law and fact by admitting exhibit 'P2'while the same was not part o f evidence availed to the appellants during committalproceedings." At the hearing the appellants had the legal services of Messrs. Fidelis Mtewele and Masudi Mwanaupanga, learned advocates respectively, while the respondent Republic was represented by Mr. Robert Magige, learned Senior State Attorney. On taking the floor, Mr. Mtewele abandoned the memorandum of appeal except ground 2. He also dropped grounds 1 and 5 of the supplementary memorandum of appeal. He argued grounds 2, 3 and 4, which carry grievances on assessors, conjointly. Making reference to page 47 of the record of appeal, he contended that the trial Judge listed the assessors and proceeded for hearing without informing them of their role and duties. Further, as reflected in pages 61 to 67 of the record of appeal, the assessors were not informed of ingredients of the offence of murder and the doctrine of common intention which were vital points of law in the case. Making reference to pages 48 to 58 of the record of appeal, he contended further that, the assessors' participation at the trial was not active as they could not ask any question because they were not informed of their duties as required by section 265 of the Criminal Procedure Act (the CPA). He added that even the opinion given suggest that the assessors did not know their duties. In this regard, he made reference to page 67 of the record of appeal where one of them simply said 'as per my colleague'. He intimated that an assessor who was well informed of his duty could not make such a statement. Counsel proceeded to submit that the trial Judge raised points in his judgment, as appearing in page 94 of the record of appeal, but they were not put to the assessors during summing up. He concluded that failure to inform the assessors their duties and also draw their attention on vital legal issues vitiated the proceedings. To bolster his argument, he cited to us our decision in Florian Ijenje and others v. Director of Public Prosecutions, Criminal Appeal No. 461 of 2017 [2020] TZCA 320 (19 June 2020) TanzLII. On the way forward, Mr. Mtewele submitted that the Court could make an order of retrial, but the prosecution had no good evidence to support a conviction. Amplifying, he submitted that the role of police officers who came (PW1 and PW2) was merely to record the cautioned statements. It is not known who reported the crime at the police station or how the crime was committed. He went on to submit that the cautioned statement of the 1st appellant appearing at page 74 of the record of appeal was recorded contrary to the law. He contended that the 1st appellant was arrested on 19/05/2014 but the statement was recorded on 21/05/2021 far beyond the 4 hours required by section 50(1) of the CPA. On the extra judicial statement which appears at page 85 of the record of appeal, he contended that it is written that "nimeandika kwa makinibi/a nyongeza yoyote ya maneno, nimeyasoma" while the appellant does not know how to read and write as shown in his evidence appearing at page 77 of the record of appeal. He urged us to expunge the cautioned statement and the extra judicial statement of the first appellant. Further, the notice for additional witness appearing at page 71 of the record of appeal, purporting to call PW1 and PW2 as additional witnesses, is not reflected anywhere in the proceedings. It has no relation to the witnesses, making the evidence of PW1 and PW2 illegal. Based on what he has submitted, he beseeched the Court to set the 1st appellant free. On his part, Mr. Mwanaupanga submitted that the trial court's failure to conduct a trial within trial after being informed that the 2nd appellant made the cautioned statement under torture was fatal. He contended further that the statement was recorded out of the prescribed period of 4 hours contrary to section 50 (1) of the CPA. He cited to us our decision made in Muganyizi Peter Michael and others v. 8 Republic, Criminal Appeal No. 144 of 2020 [2022] TZCA 499 (9 August 2022) TanzLII and urged us to expunge the cautioned statement of the 2ndappellant on the above short comings. Mr. Mwanaupanga contended further that, the trial court did not consider the defence evidence leading to a failure of justice. In totality he argued that the case was not proved beyond reasonable doubt. He beseeched the Court to set the 2ndappellant free. Mr. Magige supported the appeal based on the following grounds; one, that, the cautioned statement of the 1st appellant, exhibit PI, was received contrary to the law because there was an objection raised that it was obtained involuntarily as appearing at page 49 of the record of appeal but the trial court did not conduct a trial within trial. He contended that in the absence of a trial within a trial, the exhibit was admitted illegally and has to be expunged; two, that, the cautioned statement of the 2nd appellant was recorded out of time because the accused was arrested on 19/05/2021 but the statement was recorded on 21/05/2021; and three, that, the notice for additional witnesses appearing at page 37 of the record of appeal was never produced and received in court. It is not part of the court proceedings. It is also confusing because it also sought to add SGT Zakayo who was already 9 listed as a witness at the committal proceedings. But all the same it made the evidence of PW1 to be illegally before the court which must be expunged. On our part, we had time to examine the record of appeal and consider the submissions made by counsel. We think we should start by addressing the complaint on assessors. The requirement to sit with assessors in the High Court is contained in section 265 of the CPA. Earlier, before the amendments brought by the Written Laws (Miscellaneous Amendments) Act No.l of 2022, it was mandatory to sit with a minimum of two assessors as done by the trial Judge in this case. Once appointed and informed of their duties, their conduct is regulated by section 296 of the CPA which reads thus: "296-(l) where the case for both sides is dosed, the judge may sum up the evidence for the prosecution and the defence and shall then require each of the assessors to state his opinion orally as to the case generally and as to any specific question o f facts addressed to him by the Judge and record the opinion. 10 (2) The Judge shall give judgment, but in doing so, shall not be bound to conform to the opinion o f the assessors. (3) Where the accused person is convicted, the Judge shall pass sentence on him according to the law. "[Emphasis added] The guidance on how to handle the assessors before and during trial is found in our decision in Kandi Marwa Maswa v. Republic, Criminal Appeal No. 467 of 2015 [2016] TZCA 271 (19 October 2016) tanzLII which was followed in a number of cases including Richard Lucas Muhanza @ Leonard and 3 others v. Republic, Criminal Appeal No. 504 of 2016 [2017] TZCA 323 (12 October 2017) TanzLII. We stated thus: "(i) Where an assessor who has not heard all the evidence is allowed to give an opinion on the case, the trial is a nullity: see, for instance, Joseph Kabai v. Reg. (1959) 21EACA 260; (ii) A trial which has begun with the prescribed number o f assessors and continues with less than two o f them is unlawful: see, for instance, Clarence Glkuli v. Reg. (1959) 21 EACA 304; Nyehese Cheru v. R. (1988) TLR140, etc; (Hi) Where the trial judge does not agree with the opinion o f an assessor, or assessors he/she should record his reasons, or else the omission might lead to the vitiation o f the conviction: see, for instance, Baland Singh v. Reg. (1954) 21 EACA 209; (iv) It is a sound practice which has been consistently followed and should be followed, to give an opportunity to an accused person to object to an assessor: see, Tongeni Maata v. R, (1991) T.L.R. 59 (v) Denying the assessors the opportunity to put questions to witnesses means that the assessors were excluded from fully participating in the trials: see, Abdallah Bazamiye and Others v. Rr (1990) T.L.R. 42; (vi) Where in a trial with the aid o f assessors, there is no summing up o f the case to the assessors and as a consequence their opinion not taken, the trial is a nullity: see, Khamis Nassoro Shomar V. S.M.Z (2005) T.L.R. 228; and (vii) Where there is inadequate summing up, non-direction or misdirection on ... a vitalpoint oflaw to assessors, it is deemed to be a trial without the aid of assessors and renders the trial a nullity. See, Said Mshangama @ Senga v. R, Criminal Appeal No. 8 o f 2014 and Masoiwa Samweii V. R., 12 Criminal Appeal No. 206 o f 2014 (both unreported), etc. "[Emphasis added]. Yet on the essence of explaining the role of assessors before the commencement of the trial, our decision in Hilda Innocent v. Republic, Criminal Appeal No. 181 of 2017 [2018] TZCA 185 (6 September 2018) tanzLII has the necessary guidance when we said thus: "... it is equally important although informing the assessors on their role and responsibility is a rule o f practice not a rule o f law, as it is for a long time an established and accepted practice, in order to ensure their meaningful participation, a trial judge must perform this task immediately after ascertaining that there is no any objection against any o f the assessors by the accused before commencement o f trial. It is also a sound practice that a trial judge has to show in the record that this task has been fully performed. For even logic dictates that whenever a person is called upon to assist in performing any task or offer any service, he must be fully informed o f what is expected o f him in performing the task. Thus, failure to inform the assessors on their roie and responsibility in the trial diminishes their level o f participation and renders their 13 participation which is a requirement o f the law meaningless." See also Khamis Said Shaban v. DPP, Criminal Appeal No.284 of 2013, Said Mshangama @ Senga v. Republic, Criminal Appeal No. 8 of 2014 and Kandi Marwa Maswe (supra), Yusuph Willy Jojo v. The republic, Criminal Appeal No. 172 of 2020 [2022] TZCA 659 (31 October 2022) TanzLII Florian Ijenje and others (supra) and The Director of Public Prosecutions V. Ismail Shebe Islem and others, Criminal Appeal No. 266 of 2016 [2019] TZCA 583 (18 February 2019) TanzLII to mention a few. The complaint of the appellants on assessors has two limbs; one, that, they were not informed of their duties; and two, that, they were not addressed on vital points of law. This takes us to pages 48 and 61 to 66 of the record of appeal. The assessors were selected on 11/03/2021 as appearing at page 48 of the record of appeal. As correctly pointed by the learned counsel, the record does not show that they were informed of their duties as required by the law. The Judge simply wrote that "All the assessors are suitable. They all take the seats". This is short of the requirement of the law which required the Judge to inform them of their role as judges of facts. This resulted into inactive participation of assessors who throughout the trial asked no questions to the witnesses 14 of both sides. Equally, reading through the summing up appearing in pages 61 to 66, we could not see a place where the assessors were informed of the ingredients of the offence of murder or the doctrine of common intention which were vital legal points in deciding the case. Neither could we find a place where the six criteria used to decide the case were explained to the assessors. We agree with the learned counsel that failure to explain the duty and address the assessors on vital points of law affected their conduct and the quality of opinion given by the assessors. This vitiated the proceedings for the case was not conducted with the aid of assessors as required by the law. Ordinarily, given the shortcoming on the failure to explain the role of assessors, the remedy is to annul the trial proceedings and judgment and order a retrial. But we don't think that we can do so in this case given the weaknesses of the evidence on record. Defects are many but we will mention a few; one, the cautioned statements were all written outside the prescribed period of 4 hours provided under section 50(1) of the CPA; the 1st appellant was arrested on 22/04/2014 and his statement was recorded on 22/05/2014 whereas the 2nd appellant was arrested on 19/05/2014 and his was statement recorded on 21/05/2014. Since no extension of time was sought to record the statements beyond the prescribed 4 hours, as contended by 15 learned counsel, the statements were illegally procured. We expunge them from the record. Two, the extra judicial statement of the 1st appellant who was illiterate was recorded contrary to the Guide for Justices of Peace; it was not read to the accused. See our decisions in Manoja Masalu and another v. The Republic, Criminal Appeal No. 143 of 2020 [2024] T7CA 409 (6 June 2024) tanzLII and Hamis Chacha Wisare v. Republic, (Criminal Appeal No. 207 of 2019) [2023] TZCA 17590 (1 September 2023) tanzLII. We agree with the learned counsel submission and proceed to expunge it. Three, exhibit P2 was tendered contrary to section 34B (2) (e) of the Evidence Act given that neither was the statement served on the appellant nor notice was given by the prosecution on its intention to rely on such statement. Thus, it has no evidential value. We agree with the learned counsel and expunge it. Four, the evidence of PW1 and PW3 has no value and deserve to be expunged. Such evidence was not initially introduced during committal and besides the notice of additional evidence was not served on the appellants. Having expunged the documentary account of the prosecution as alluded to, on record there is no other evidence to prove the charge against the appellants. Consequently, we find the appeal merited and it is allowed. 16 We direct immediate release of the appellants from custody unless lawfully held for some other reasons. DATED at MWANZA this 13thday of August, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL L. M. MLACHA 3USTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL The Judgment delivered this 13th day of August, 2024 in the presence of the 1st and 2nd Appellants who appeared in person and Mr. Benedicto Ruguge, learned State Attorney for the Respondent / Republic, is hereby certified as a true copy of the original. is R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 17