taitus

IN THE COURT OF APPEAL OF TANZANIA AT SUMBAWANGA fCORAM: MWARIJA. J.A.. MASHAKA, J.A. And FELESHI, 3.A.1 CRIMINAL APPEAL NO, 37 OF 2023 TAITUS GERALD @ MALAMBWA @ TITO MALAMBWA............. . APPELLANT VERSUS THE REPUBLIC....... ..... .......................................................RESPONDENT (Appeal from the judgment of the Resident Magistrate's Court of Katavi at Mpanda) fSumave, PRM - Ext. Jur.T dated the 13th day of September, 2022 in RM Criminal Sessions Case No. 2 of 2022 JUDGMENT OF THE COURT 11th & 24th March, 2025 MWARIJA, J.A.: This appeal arises from the decision of the Resident Magistrate's Court of Katavi at Mpanda in RM Criminal Sessions Case No. 2 of 2022. Initially, the appellant, Taitus Gerald Malambwa, was charged in the High Court of Tanzania at Sumbawanga with the offence of murder contrary to section 196 of the Penal Code, Chapter 16 of the Revised Laws. It was alleged that, on 13/11/2019 at Ntibili Village within Mlele District in Katavi Region, the appellant murdered his wife one Noela i Costa. The case was transferred to the Resident Magistrate's Court of Katavi to be heard by G. K. Sumaye, Principal Resident Magistrate with extended jurisdiction (PRM - Ext. Jur.). When the appellant was arraigned, he denied the charge thus compelling the prosecution to call seven witnesses in a bid to prove its case. On his part, the appellant relied on his own evidence in defence. Having considered the evidence adduced by the prosecution witnesses and the appellant, the learned trial PRM - Ext. Jur. was satisfied that, the case had been proved beyond reasonable doubt against the appellant. He was consequently convicted and sentenced to suffer death by hanging. Aggrieved by the decision of the trial court, the appellant has preferred this appeal. The facts giving rise to the appellant's arraignment and eventually this appeal may be briefly stated as follows: The appellant and the deceased were until the material time a husband and wife. They lived under the same roof at Ntibili Village within Mlele District in Katavi Region. On 4/11/2019 in the morning, the deceased was found dead in her house. Her body was lying naked on the mattress in the house. It had multiple injuries and beside it, was a hoe. The deceased's husband, the appellant, was not found at home that morning and although the information about the incident had spread to the neighbours and relatives, he did not appear at his home. His absence raised suspicion of his involvement in the commission of the offence charged and had, as a result, fled from his home. He was arrested on 8/1/2019 at Mbugani Kaseke Ward at the residence of his relative, one Stanslaus Frimon. On 17/3/2020 he was charged as shown above. The evidence on how the death of deceased came to be discovered was adduced by Generoza Ndatera (PW6), the mother in­ law of the deceased. She testified that, on 4/11/2019 in the morning, she went to the appellant's house for the purpose of greeting him and his wife. She did not find her son and to her surprise, she found the deceased's body lying in the house, on the mattress. She immediately informed her relatives including one Leticia. They raised an alarm which was responded to by a number of people. The Village Executive Officer, one Joseph Mgelwa (PW1) was also informed of the incident and immediately went to the scene. According to his evidence, after having arrived at the scene, PWl entered into the appellant's house and found the deceased's body. Upon viewing it, he found that, it had injuries on the head, neck and the hand. He also found a hoe near the body. It was his further evidence that, the incident was reported to the police and following that information, No, F4373 D/Cpl James (PW5) went to the scene accompanied by Dr. Spelatus Karumuna (PW4). According to the evidence of PW5, he found the body of the deceased bleeding from injuries she had sustained on the head, neck and chest. He also saw a hoe near the deceased's body. He drew a sketch map of the scene which he later tendered in court and the same was admitted in evidence as exhibit P3. PVV5 testified further that, he recorded the appellant's cautioned statement. The statement was admitted in evidence as exhibit P4. It was the prosecution's evidence also that, the appellant confessed before the Justice of the Peace that he committed the offence of killing the deceased. That evidence was adduced by Vustan Kundi (PW3), who was at the material time a Resident Magistrate of Usevya Primary Court and a Justice of the Peace. He testified that, on 11/11/2019 he recorded the appellant's extra judicial statement after the appellant had volunteered to confess. That was after he had informed him of his rights and after having inspected his body to ensure that he had no injuries indicating that he had been tortured. The statement was tendered in court and admitted as exhibit PI. On his part, PW4 testified that, upon examination of the deceased's body, he found out that, it had cut wounds on the head, neck and chest caused by a sharp object. He found that the cause of death was hypovolemic shock due to acute bleeding. Although the appellant was not found at his home on the date on which the deceased was found dead, it was the evidence of Leticia Malambwa (PW7), the appellant's relative and neighbour that, he was present on 3/11/2019, a day prior to the date of the deceased's death. The witness, a cousin of the appellant and a neighbour averred that, she saw him at his home on 3/11/2019. She was surprised that he did not turn up at the scene on that morning. His whereabouts were later disclosed by one Pius Iiesha (PW2), who was the Street Chairman, Mbugani Kaseke Ward. Testifying in court, PW2 stated that, on 8/1/2020 he received information that, there was a stranger who is suspected to have fled to the village after committing the offence of murder and that, he was residing in the house of his relative, one Stanslaus Frimon. The witness testified further that, he caused the arrest of the appellant and upon questioning him, he admitted that he fled after killing his wife. PW2 reported the incident to Mpanda Police Station the effect of which, the appellant was arrested and later charged in court. The appellant's defence was that of a total denial. He based his defence on alibi. Testifying as DW1, he told the trial court that, on 12/9/2019, he left his home for Mpanda where he went to work in mines together with a friend, one Juma. He went on to state that, he worked until on 8/11/2019 when he went to his brother's home. While there, he was arrested by certain people. Shortly thereafter, police officers arrived and took him to Mpanda Police Station. While there, he said, he was informed that he murdered his wife and as a result of being tortured through beatings, he sign some papers which he did not know their contents. He swore that he did not commit the offence charged. In convicting the appellant, the trial court relied on the doctrine of the last seen person, the appellant's confessions and the circumstantial evidence. The learned PRM - Ext. Jur. believed the evidence of PW7 that she saw the appellant a day prior to the day when the deceased was found dead in her house. He also found the evidence of the cautioned and extra judicial statements credible and that, in the circumstances, the case against the appellant was proved beyond reasonable doubt. The appellant challenged the decision of the trial court by raising four grounds of appeal contained in his memorandum of appeal lodged on 24/4/2024. Later on however, his assigned advocate submitted a supplementary memorandum of appeal consisting of four grounds. At the hearing of the appeal, the appellant was represented by Mr. Ayoub Mwakalonge, learned counsel while the respondent Republic was represented by Mr. Calistus Kapinga, learned Senior State Attorney who was being assisted by Mr. Joseph Mwakasege, learned State Attorney. When he was called upon to argue the appeal, Mr. Mwakalonge began by informing the Court that, he would argue the grounds of appeal contained In the supplementary memorandum and abandon those which are contained in the memorandum lodged by the appellant. Furthermore, in the course of his arguments, he abandoned the second and third grounds raised in his supplementary memorandum of appeal thus remaining with the first and fourth grounds of appeal. In those two grounds of appeal, the appellant contends as follows: "i. That, the trial court erred in law and fact by convicting and sentencing the appellant basing on circumstantial evidence which [was not sufficient to prove the case] beyond reasonable doubt. 2 • ¥• t 3. .... 4. That, the case against the appellant was not pro ved beyond reasonable doubt". The two grounds above are, in essence, raising only one issue; whether or not the circumstantial evidence relied upon by the prosecution had proved the case against the appellant beyond reasonable doubt. For that reason, the learned counsel for the appellant argued the two grounds together. He argued that, the circumstantial evidence relied upon by the trial court to found the appellant's conviction was insufficient for want of corroboration. To bolster his argument, he cited the cases of Jimmy Rumangaza v. Republic, Criminal Appeal No. 159B of 2017 and Kulwa Bunzari @ Bodo v. Republic, Criminal Appeal No. 583 of 2021 (both unreported). With regard to the evidence of PW7 which was to the effect that, the appellant was at home a day prior to the date on which the deceased was found dead, Mr. Mwakalonge argued that such evidence should have been acted upon cautiously because the witness said also that the appellant was living with the deceased and their children. In reply to the submissions of the appellant's counsel, Mr. Mwakasege opposed the appeal arguing that the case was proved beyond reasonable doubt against the appellant. He submitted that, from the evidence that the appellant was the last person to be seen with the deceased and from his conduct of absconding from his home after the incident and further, from both his cautioned and extra-judicial statements, the appellant was properly convicted. He cited the case of Mark Kasimiri v. Republic (Criminal Appeal No. 39 of 2017) [2020] TZCA 170 (24 March 2020), to support his argument. We have duly considered the submissions of the learned counsel for the parties. This being a first appeal, we have also re-evaluated the evidence adduced by the prosecution witnesses and the appellant. As stated above, there was no direct evidence linking the appellant with the killing of the deceased. His conviction was based on circumstantial evidence. The position of the law is that such kind of evidence can be acted upon to convict an accused person. In the case of Grayson Zakaria Mkumbi @ Mapando and Another v. Republic, Criminal Appeal No. 241 of 2015 (unreported), the Court reiterated that principle in the following words: "It is trite iaw that circumstantial evidence can ground conviction of, however serious an offence" It cited further, the decision of the Erstwhile East African Court of Appeal in the case of Simon Musoke v. Republic [1958] EA 715 in which, the conditions for acting on such kind of evidence to found conviction were stated. It was observed as follows: "... in a case depending exclusively upon circumstantial evidencer the court must before deciding upon a conviction, find that the inculpatory facts are incompatible with the innocence o f the accused and incapable o f explanation upon any other reasonable hypothesis than that o f guilt". In the case at hand, it is indisputable that the appellant was not found at the scene of crime in the morning of the fateful day. He raised the defence of alibi, that he was not at his home on that date. He contended that, on 12/9/2019 he travelled to Mpanda where he stayed until when he was arrested in connection with the death of the deceased. The evidence of PW7 that the deceased was at home a day prior to the fateful day was believed by the trial court. Having scrutinized that evidence, we could not find any sound reason to hold otherwise. Her evidence was creditworthy. Mr. Mwakalonge has urged us to discredit that evidence on account that, the witness had testified that 11 the appellant was living with his wife and children. We understand the learned counsel's argument to suggest that, the offence could not have been committed by the appellant in the presence of his children. It is true that, the witness stated at page 91 of the record of appeal that, the appellant was living with his wife and two children. However, we are unable to agree with the learned counsel's contention because in her evidence, the witness did not state that, when he saw the appellant at his house on that particular day, she also saw the appellant's children. Furthermore, it is indisputable that, what was found at the scene of crime was the deceased's body alone and no any other person was there. We are thus, with respect, not convinced by Mr. Mwakalonge's argument. To that end, we agree with the finding of the trial court that, the appellant's defence of alibi was an afterthought. The fact that he was arrested at Mpanda is a proof that, he fled after the incident and because he was the last person to be seen at his home, he was properly held liable to the offence. In sum therefore, we find that the circumstantial evidence led irresistibly to the appellant's guilty. The inculpatory facts, such as his conduct of fleeing from his home after the deceased's death, are incompatible with his innocence. Apart from that evidence, the appellant recorded both cautioned and extrajudicial statements in which he confessed to have committed the offence. The trial court was of the view that, both statements were made voluntarily. Having gone through the proceedings, it became apparent to us that, the appellant did not dispute that he made the statements voluntarily. The objections which were raised through his learned counsel, centred on procedural irregularities and in our view, the same were properly overruled by the trial court. Although in his defence, the appellant repudiated both confessions on account that, he was beaten at the police at the time of recording the cautioned statement and before he was taken to the Justice of the Peace, the confession evidence was corroborated by circumstantial evidence which, as found above, was credible. It is trite principle that, circumstantial evidence can be used as corroboration evidence. - See for instance the cases of Msafiri Jumanne and 2 Others v. Republic (Criminal Appeal No. 13 187 of 2006) [2010] TZCA 269 (11 October 2010) and Pascal Kitigwa v. Republic [1994] T.L.R. 65. In the latter case, the Court observed that: "Corroborative evidence may be circumstantial and may well come from the words or conduct". On the basis of the foregoing reasons, we find that, this appeal lacks merit and we hereby dismiss it. DATED at SUMBAWANGA this 22nd day of March, 2025. A. G. MWARIJA JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL The Judgment delivered this 24th day of March, 2025 in the presence of appellant in person and Ms. Flavia Shiyo, learned Senior State Attorney for the respondent/Republic, is hereby certified as a true I h- f r*,v * U &^4PEBilTY j ^-kamala f \ ■£. \ V 0\ REGISTRAR \ ° X / ^ "^GdilRT OF APPEAL