Anthony Kayaga Mnibhi Vs Republic (Criminal Appeal No 550 of 2019) 2024 TZCA 284 (30 April 2024)
Anthony Kayaga Mnibhi Vs Republic (Criminal Appeal No 550 of 2019) 2024 TZCA 284 (30 April 2024)
Anthony Kayaga Mnibhi Vs Republic (Criminal Appeal No 550 of 2019) 2024 TZCA 284 (30 April 2024)
AT MUSOMA
VERSUS
THE REPUBLIC...................................................................................RESPONDENT
SEHEL J.A.:
High Court of Tanzania at Musoma (the trial court), with the offence of
Bunda District in Mara Region, the appellant murdered, one, Maria d/o
Kigombe, a child aged four years. For the purpose of this judgment, we
shall refer her as "the child" or "the deceased". Having denied the charge,
a full trial ensued whereby the prosecution lined up four witnesses and
produced no other witnesses. He also did not have any exhibit to tender.
on 13th May, 2015, she woke up early in the morning and went to the farm
leaving behind her three grandchildren, namely, the deceased, Prisca and
Kaitira. She returned home at around 10:00 hrs but none of the
grandchildren were at home. She started looking for them. She inquired to
her that she only saw Prisca and Kaitira. While still searching for the child,
PW1 met with the appellant and Mashaka Philipo (PW2). They were
returning home from grazing. She asked them as to whether they saw the
child. According to PW1, the appellant informed her that he returned her
home.
The evidence of PW2 was to the effect that, on 13th May, 2015, he
went with the appellant to graze cattle around Changuge mountains. While
there, they saw a child seated, alone, on the rock. As the appellant was
familiar to the child, PW2 requested him to take the child home and he will
look after his cattle. The appellant obliged and left with the child at around
11:00 hrs but belatedly returned to the grazing ground, at around 16:00
hrs.
2
PW1 raised an alarm and the search for the missing child started
but, as the sun was setting down and the child was nowhere to be seen,
on 14th May, 2019, the deceased's body was found near the grazing
ground with bruises and marks in the neck and blood in her private parts.
village where the homicide took place and found the appellant under
restraint and the deceased body was lying between two rocks. The doctor
performed an autopsy, and thereafter, the body was taken to her home
Post Mortem Examination Report, Exhibit PI, indicates that the body
The appellant was taken to Bunda Police Station. PW4 recorded the
exhibit P2.
At this juncture, we find it instructive to point out that when the
counsel who represented the appellant in the trial court objected that it
Procedure Act (the CPA). Having heard the submissions from the counsel
child home but denied to have murdered her. He said that he took her
home safe where he found two other children. He warned them to remain
at home and left. He returned to the grazing yard and continued with the
grazing activity till late in the evening. In the evening, he went to the
place where the child got lost and participated in the search.
At the conclusion of the trial, the three assessors who sat with the
appellant. The learned trial Judge concurred with the assessors and as a
result, the appellant was found guilty, convicted and sentenced to suffer
death by hanging.
Judge relied on the circumstantial evidence and the principle that the
deceased was last seen alive in the hands of the appellant. The learned
trial Judge listed ten strands of circumstantial evidence including that PW2
saw the appellant leaving with the child alive, and that, PW1 did not find
corroborated the prosecution case. He observed that the appellant was not
At the end, he concluded that the appellant failed to offer any plausible
guilt.
"1. That, the tria l court erred in iaw and fact in convicting the
appellant o f the offence o f m urder w hile there was no eye
witness to the killin g o f the deceased, and that, the
circum stantial evidence was not water tight to sustain the
conviction.
2. That, the tria l court erred in law and fact to convict the
appellant relying on cautioned statem ent, exhibit P2, which
was ille g a lly obtained and wrongly adm itted in evidence.
5
4. That, there was no independent evidence to corroborate the
allegation that the appellant was the la st person to be with
the deceased i.e the allegation was on pure suspicion which
cannot be taken to im plicate the appellant as the one who
kille d the deceased.
appeared for the appellant, whereas, Ms. Wampumbulya Shani and Mr.
Republic.
informed the Court that, he consulted with his client and they agreed to
argue the first, third and fifth grounds of appeal together while the second
the evidence on record shows that the appellant does not know how to
read and write, as such, the cautioned statement, exhibit P2, appearing at
dictates of section 57 (4) of the CPA read together with section 33 (4) of
the Police Force and Auxiliary Services Act (the Police Force Act). He
6
contended that, looking at exhibit P2, it only indicates that PW4 certified to
have read the contents of the statement to the appellant but the said
submission that PW4 did not cumulatively comply with each and every
requirement stipulated under section 33 (4) (a) (i) (ii) (iii) and (b) of the
Police Force Act. To cement his argument that the procedural rights have
to be strictly observed not only for the benefit of an accused person but
Ally v. R [2010] 2 E.A 446 where the Court reiterated the need of the trial
Kabelele & Another v. The Republic, Criminal Appeal No. 224 of 2011
(unreported), the learned counsel for the appellant argued that a police
the CPA, and that, such failure is fatal as it is not curable under section
169 of the CPA. Therefore, Mr. Tuthuru argued that the learned trial Judge
erred in law in his ruling when he held that the omission was a curable
irregularity.
He added that the prosecution bears a burden under section 169 (3)
of the CPA to explain the reason why the cautioned statement should be
The Republic (Criminal Appeal No. 225 of 2011) [2013] TZCA 415 (1
August, 2013).
obtained through torture as testified by the appellant, and that, the fact
that PW4 read the investigation file first and thereafter went to interview
the appellant supported the allegation of the appellant that the statement
At the end, Mr. Tuthuru urged the Court to expunge from the record
Arguing jointly the first, third and fifth grounds of appeal, at the
outset, Mr. Tuthuru acknowledged that there was no eye witness on how
the child met her death. For that reason, he pointed out that the learned
trial Judge relied on the circumstantial evidence, the last person seen
the appellant break the connection, thus, dissociating the appellant from
the death of the child. First, the learned counsel contended that the
argument that PW2 saw the deceased seated on the rock while there is no
familiar to the deceased but it was PW2 who requested the appellant to
take the child home, and that, the appellant did not volunteer to take her
home. Therefore, Mr. Tuthuru argued that it was unjust to blame the
appellant for returning the child home safe. He went on that, according to
appeal, he safely returned the child home where he found two other
23 of the record of appeal when she said that upon returning home, she
did not find any of the children at home, and that, mama Nyangoko told
her that she saw Kaitira and Prisca. However, Mr. Tuthuru argued, the said
mama Nyangoko did not mention the place where she saw the two
children. In that respect, he contended, the evidence of PW1 was doubtful
Thirdly, Mr. Tuthuru assailed the learned trial Judge's finding that
the appellant was a liar. He contended that there was no evidence in the
record suggesting that the appellant was a liar apart from it being raised
returned to the grazing yard. Mr. Tuthuru pointed out that the appellant
said he went for lunch and to drink water, which is, a common act by any
herdsman. It was his submission that it was wrong for the trial court to
evidence, the doctrine of the last person seen With the deceased was not
With that submission, Mr. Tuthuru prayed to the Court to quash the
conviction, set aside the sentence and release the appellant from prison.
10
It was Ms. Shani who made a reply submission on behalf of the
respondent. At the outset, Ms. Shani expressed her stance that she was
not supporting the appeal. Thereafter, she responded to the appeal in the
dictates of the provisions of section 57 (4) of the CPA. She took us to page
55 of the record of appeal where both the appellant and PW4 certified at
the end of the cautioned statement. She pointed out that the certification
made by the appellant is crystal clear that the contents of the statement
were read over to him, and that, he was satisfied with its contents as
correct and depicts nothing but the truth. The learned State Attorney
further argued that the act of the appellant to place his thumb print meant
that he acknowledged what was read over to him by the recording police
officer. Ms. Shani added that even the police officer who recorded the
provisions of section 57 (1) (2) (3) and (4) of the CPA. She went on that, if
would have been reflected in the statement but it appears, from the record
of appeal, the appellant was satisfied with what was recorded by PW4.
ii
Further, Ms. Shani argued that the issue of torture was an
82. She, therefore, urged the Court to dismiss this ground of appeal.
Attorney supported the findings of the trial court. She conceded that there
was no eye witness but argued that the circumstantial evidence which the
appellant beyond reasonable doubt, and that, there were no any other co
13th May, 2015, while PW2 was at the grazing ground with the appellant
saw a child seated on the rock; the appellant happened to know the child,
thus, PW2 requested him to take her home; the appellant admitted in his
defence to have taken the child home but, according to the evidence of
PW1, the child was not at home. PW1 started to look for her, and that, on
the way, she met PW2 and the appellant. PW1 asked them whether they
saw the deceased and the appellant told her that he took her home but
she was not at home. To the contrary, her body was found lying in the
mountains on the next day. All these inculpatory facts, she argued, are
page 37 of the record of appeal where the appellant gave three different
that lies of the appellant were drawn from the evidence and not from the
urged this Court to find that lies told by the appellant corroborated the
Ms. Shani acknowledged that mama Nyangoko did not mention the
place where she saw the two children but such failure, she argued, did not
affect the evidence of PW1 that the deceased was not at home. Further,
she argued, PW1 was not cross-examined on that fact which means that
the appellant accepted the truth of the statement. To cement her position,
Lastly, Ms. Shani responded to the fourth ground of appeal that the
deceased was seen alive with the appellant by PW2, Ms. Shani argued that
the appellant claimed to have taken the child home but PW1 did not find
13
her at home. On that basis, the learned State Attorney invited us to
argued that since it was objected then its contents were also objected.
Regarding the last seen principle, he reiterated that the appellant clearly
stated that he returned the child home where he also found two children
the record, we wish first to state that this being a first appeal, the Court is
this appeal. In determining this appeal, we shall adopt the sequency of the
of the CPA read together with section 33 (3) of the Police Force Act.
14
police officer not to read the record when it is
shown to him in accordance with subsection (3) the
police officer shali-
section 33 (3) of the Police Force Act. From the above provision, after the
15
In this appeal, it is on record that the appellant does not know how
to read and write, thus, the policer officer, PW4 who recorded the
to the appellant. Mr. Tuthuru does not have any qualm on the fact that the
cautioned statement was read over to the appellant. His complaint was
that the record does not indicate whether the appellant was asked or
statement. He argued that section 57 (4) of the CPA read together with
section 33 (3) of the Police Force Act was not fully complied with.
page 55 of the record that, both the appellant and PW4 verified at the end
verify that my recorded statement is correct and reflects nothing but the
truth. I further verify that the same was read over to me and satisfied to
be correct. The record further shows that the appellant placed his right-
hand thumb print to seal what he verified. This means that the appellant
16
was satisfied with what was read over to him by PW4 and accepted the
statement of the appellant under section 57 (1) (2) (3) and (4) of the CPA,
and that, he read over the said statement to the appellant who does not
know how to read and write. Accordingly, we are satisfied that PW4 fully
complied with the dictates of section 57 (4) of the CPA read together with
section 33 (3) of the Police Force Act in recording the cautioned statement
of the appellant.
PW4. We are alive with the position of the law that the trial court has a
17
Jason & 2 Others v. The Republic, Criminal Appeal No. 79 of 1999
(unreported) that:
court considered that the appellant was under restraint of PW3 and others
before PW4 took him to Bunda Police Station. The appellant was
questioned by PW4 few minutes after his arrival at the police station. The
the trial court referred to the evidence of PW4 and found it credible that
PW4 fully informed the appellant his rights before interviewing him, and
that, the appellant had no bruises. It is for these reasons; the learned trial
Judge declined the invitation made by the learned counsel for the caution
18
statement to be expunged. We, like the trial court, do not find merit to this
complaint. Accordingly, we find that the trial court rightly rejected it.
that PW4 fabricated the story. We say so because, the appellant was
we strongly believe that the file had little information to enable PW4 to
Regarding the ruling of the learned trial Judge, having revisited the
(4) of the CPA rather on the mixing up of sections 57 and 58 of the CPA
which he rightly ruled that such irregularity is curable. In the end, we find
This brings us to the first, third and fifth grounds of appeal that the
strands of circumstances did not lead to the guilt of the appellant. The law
with the innocence of the accused person and incapable of any other
reasonable hypothesis than that of his guilt -see: the cases of Ilanda
(Criminal Appeal No. 18 of 2004) [2005] TZCA 41 (30 August, 2005) and
evidence which it held that they linked the appellant with the death of the
child. Mr. Tuthuru attacked some of the strands alleging that they raise
Shani that the appellant acknowledged in his defence evidence that he left
with the child to take her home. The appellant's evidence corroborated the
evidence of PW2 that after seeing the child alone in the mountains, he
20
asked him to take the child home which he did. The appellant claimed that
he returned the child home where he found two other children at home.
facts are inconsistent with the innocence of the accused person and
to the evidence of PW2, the appellant left with the child at around 11:00
hrs and he belatedly returned to the grazing yard. When the appellant was
Secondly, he went to eat. Thirdly, he claimed that his leg was injured.
We further gather from the record that, at first instance, the appellant said
he went straight to where PW2 was. We, thus, find that the issue of the
appellant's lies was derived from the evidence and not from the final
Furthermore, it was the evidence of PW1 that when she returned home at
mama Nyangoko saw the two children thus there is doubt on the
We entirely agree with Ms. Shani that the fact that mama Nyangoko did
not mention the place where she saw the two children does not by itself
21
absolve the fact that the appellant was last seen with the child alive who
with the fact that the appellant gave three different explanations on his
belated return to the grazing yard, we are satisfied that the strands create
first, third and fifth grounds of appeal have no merit and we dismiss them.
for the parties that the convictions of the appellant was also anchored on
the principle of the last person to be seen with the deceased alive.
According to the evidence of PW2, the appellant left around 11:00 hrs with
the deceased in order to take her home. Further, the appellant admitted in
his defence evidence that he was the one who took the child home but he
claimed that he safely returned her home and found two other children at
him. It is trite law that if an accused person is alleged to have been the
she will be presumed to be the killer. Besides, the evidence of PW2 who
saw the appellant with the deceased alive is corroborated with his defence
22
evidence. In that respect, we are satisfied that the doctrine was rightly
applied and we see no reason to disturb the finding of the trial court that it
was the appellant who killed the deceased with the requisite malice
dismiss it.
In the end, we find that the appeal was lodged without any merit.
B. M. A. SEHEL
JUSTICE OF APPEAL
P. S. FIKIRINI
JUSTICE OF APPEAL
A. A. ISSA
JUSTICE OF APPEAL
The Judgment delivered this 30th day of April, 2024 in the presence
of the Appellant in person and Mr. Yese Temba, learned State Attorney for