Anthony Kayaga Mnibhi Vs Republic (Criminal Appeal No 550 of 2019) 2024 TZCA 284 (30 April 2024)

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IN THE COURT OF APPEAL OF TANZANIA

AT MUSOMA

(CORAM: SEHEL. J.A.. FIKIRINI. 3.A. And ISSA, 3 .A . )

CRIMINAL APPEAL NO. 550 OF 2019

ANTHONY KAYAGA @ MNIBHI.............................................................. APPELLANT

VERSUS
THE REPUBLIC...................................................................................RESPONDENT

(Appeal from the Judgment of the High Court of Tanzania at Musoma)


(Mdemu, 3.^

dated the 11th day of September, 2019


in
Criminal Sessions Case No. 180 of 2016

JUDGMENT OF THE COURT


22nd & 30th April, 2024

SEHEL J.A.:

The appellant, Anthony Kayaga @ Mnibhi, was arraigned before the

High Court of Tanzania at Musoma (the trial court), with the offence of

murder contrary to sections 196 and 197 of the Penal Code.

It was alleged that, on 13th May, 2015, at Changuge village within

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

tendered two documentary exhibits namely; the postmortem report of the

deceased, exhibit PI and the cautioned statement of the appellant, exhibit


1
P2. On the defence side, the accused person testified under oath but

produced no other witnesses. He also did not have any exhibit to tender.

Pili Kaitira (PW1), the grandmother of the deceased, recounted that,

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

the neighbours on the whereabouts of the children. Mama Nyangoko told

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,

the search was halted till next day.

Butegi Katinde (PW3) who participated in the search recalled that,

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.

The matter was reported to Bunda Police Post. Police officers

including Detective Corporal Frank Nchanila (PW4) went to Changuge

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

for burial services.

Post Mortem Examination Report, Exhibit PI, indicates that the body

of the deceased had severe injury on vaginal canal and signs of

strangulation, and that, the deceased died from strangulation causing

failure to breath and rape causing severe injury on genital organs.

The appellant was taken to Bunda Police Station. PW4 recorded the

cautioned statement of the appellant which was admitted in evidence as

exhibit P2.
At this juncture, we find it instructive to point out that when the

cautioned statement was sought to be tendered in evidence, the learned

counsel who represented the appellant in the trial court objected that it

was taken contrary to the dictates of section 57 (4) of the Criminal

Procedure Act (the CPA). Having heard the submissions from the counsel

for the parties, the trial court overruled it.

In his sworn evidence, the appellant admitted to have taken the

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

learned trial Judge unanimously returned a verdict of guilt against 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.

In grounding the conviction against the appellant, the learned trial

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

the child at home. He also found that the cautioned statement

corroborated the prosecution case. He observed that the appellant was not

consistent in his evidence as he gave three different explanations on his

delayed return to the grazing ground. Therefore, he labelled him as a liar.

At the end, he concluded that the appellant failed to offer any plausible

explanation regarding circumstances leading to the death of the deceased,

as such, there was no any other possible explanation than a verdict of

guilt.

Aggrieved, the appellant lodged a memorandum of appeal comprised

of the following five grounds:

"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.

3. That, the evidence o f PW1, PW2 and PW 3 was weak,


incredible and doubtful to warrant a conviction to the
appellant.

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.

5. That, the prosecution evidence did not prove the case


against the appellant beyond reasonable doubt as law
requires".

At the hearing of the appeal, Mr. Cosmas Tuthuru, learned advocate,

appeared for the appellant, whereas, Ms. Wampumbulya Shani and Mr.

Tawabu Yahya, learned State Attorneys, appeared for the respondent/

Republic.

When Mr. Tuthuru took the floor to submit on the appeal, he

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

and fourth grounds of appeal would each be argued separate.

Starting with the second ground of appeal, Mr. Tuthuru submitted,

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

pages 52 - 55 of the record of appeal ought to have complied with the

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

certification does not show whether he asked or permitted the appellant to

correct, alter or add anything to the recorded statement. It was his

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

also to ensure justice is done, he referred us to the case of Twaha s/o

Ally v. R [2010] 2 E.A 446 where the Court reiterated the need of the trial

court's proceedings to reflect that an accused person was informed of his

rights and the response he has given.

Further, relying on the authority in the case of Chamuriho Kirenge

@ Chamuriho Julias v. The Repulic (Criminal Appeal No. 597 of 2017)

[2022] TZCA 98 (7 March, 2022) which cited the case of Bulabo

Kabelele & Another v. The Republic, Criminal Appeal No. 224 of 2011

(unreported), the learned counsel for the appellant argued that a police

officer who records the cautioned statement of an accused person has a

statutory duty to comply fully with the provisions of sections 57 and 58 of

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

admitted in evidence, and that, in absence of any reasoning, no weight

should be attached to the tendered cautioned statement. To fortify his

submission, he referred us to the case of Marwa Rugumba @ Kisiri v.

The Republic (Criminal Appeal No. 225 of 2011) [2013] TZCA 415 (1

August, 2013).

Mr. Tuthuru further contended that the cautioned statement was

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

was illegally obtained.

At the end, Mr. Tuthuru urged the Court to expunge from the record

the cautioned statement, exhibit P2.

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

principle and the appellant's cautioned statement to convict the appellant.

On the circumstantial evidence, Mr. Tuthuru contended that the ten

strands which the learned trial Judge considered to be pointing finger to

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

explanation as to who placed her on the rock raise suspicion on the

involvement of the appellant. He added that though the appellant was

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

the evidence of the appellant found at pages 36 - 37 of the record of

appeal, he safely returned the child home where he found two other

children and warned them to stay inside.

Secondly, Mr. Tuthuru attacked the evidence of PW1 found at page

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

which ought to be resolved in favour of the appellant.

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

by the learned State Attorney in the closing submission. He further

contended that the appellant gave a justifiable reason why he belatedly

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

treat it as one of the circumstances pointing to the appellant's guilt.

According to Mr. Tuthuru, on the whole, the circumstantial evidence

considered by the learned trial Judge do not irresistibly leads to the

conclusion that the appellant killed the deceased.

On the fourth ground of appeal, Mr. Tuthuru vehemently submitted

that, given that there is some lacking information on the circumstantial

evidence, the doctrine of the last person seen With the deceased was not

proved beyond reasonable doubt by the respondent.

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

manner submitted by Mr. Tuthuru.

Responding to the second ground of appeal, Ms. Shani argued that

the appellant's cautioned statement was recorded in compliance with 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

statement verified in the cautioned statement that he complied with the

provisions of section 57 (1) (2) (3) and (4) of the CPA. She went on that, if

there was anything which the appellant wanted to be corrected or added it

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

afterthought as the appellant raised it in his defence evidence and not

when the cautioned statement was sought to be tendered in evidence. To

support her submission, she referred us to the case of the Director of

the Public Prosecutions v. Nuru Mohamed Gulamrasul [1998] T.L.R.

82. She, therefore, urged the Court to dismiss this ground of appeal.

With regard to the circumstantial evidence, the learned State

Attorney supported the findings of the trial court. She conceded that there

was no eye witness but argued that the circumstantial evidence which the

prosecution side relied on irresistibly lead to establishing the guilty of the

appellant beyond reasonable doubt, and that, there were no any other co­

existing circumstances which would have weaken or destroyed the

inference of guilt as submitted by Mr. Tuthuru. Ms. Shani went on to point

out the circumstances leading to the conviction of the appellant, that, on

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

incompatible with the innocence of the appellant.

In addition, on the lies of the appellant, Ms. Shani referred us to

page 37 of the record of appeal where the appellant gave three different

explanations why he delayed to return to the grazing ground. She argued

that lies of the appellant were drawn from the evidence and not from the

final submissions made by the learned State Attorney. Therefore, she

urged this Court to find that lies told by the appellant corroborated the

prosecution case. To support her prayer, she cited to us the case of

Mathias Bundala v. The Republic [2007] T.L.R. 53.

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,

she referred us to our earlier decision in the case of Mathias Bundala v.

The Republic (supra).

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

dismiss the appeal for lack of merit.

Mr. Tuthuru briefly rejoined that the cautioned statement was

objected when the prosecution witness wanted to tender it in evidence. He

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

and warned them to stay home.

Having duly considered the submissions of both parties and reviewed

the record, we wish first to state that this being a first appeal, the Court is

entitled to re-evaluate and reconsider the evidence tendered before the

trial court, and if appropriate, arrive at its own decision. We shall do so in

this appeal. In determining this appeal, we shall adopt the sequency of the

submissions made by the learned counsel for the parties.

Starting with the second ground of appeal, the appellant complained

that the cautioned statement was taken in contravention of section 57 (4)

of the CPA read together with section 33 (3) of the Police Force Act.

Section 57 (4) of the CPA provides:

"57. (4) Where the person who is interview ed by a


police officer is unable to read the record o f the
interview or refuses to read, or appears to the

14
police officer not to read the record when it is
shown to him in accordance with subsection (3) the
police officer shali-

(a) read the record to him, or cause the record


to be read to him ;

(b)ask him whether he would like to correct or


add anything to the record;

(c) perm it him to correct, alter or add to the


record, or make any corrections, alterations
o r additions to the record that he requests
the police officer to make;

(d) ask him to sign the certificate a t the end o f


the record; and

(e) certify under h is hand, a t the end o f the


record, what he has done in pursuance o f
this subsection."

The wording of the above provision of the law is p a ri m ateria with

section 33 (3) of the Police Force Act. From the above provision, after the

interviewing officer has finished to record the statement, he is mandatorily

required to read it over to the appellant. In the case of Chamuriho

Kirenge@ Chamuriho Julias v. The Republic (supra), we stated the

reason behind such requirement is to verify the correctness of the

recorded statement and to avoid imputing words on the appellant's mouth.

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

appellant's cautioned statement was mandatorily required to read it over

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

permitted to correct, alter or add anything to the recorded cautioned

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.

Having carefully revisited the record of appeal, we gathered from

page 55 of the record that, both the appellant and PW4 verified at the end

of the cautioned statement. The appellant's verification reads:

"Mim i Antony s/o Kayaga nathibitisha kuwa


m aelezo yangu niliyotoa n i ya kw eli na n i sahihi
kama nilivyoyatoa na nathibitisha kuwa
nimesomewa na kuridhika kuwa n i sahihi.
R .T.P."

The above literally translates that, I, Antony s/o Kayaga, do hereby

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

contents to be correct which did not require any correction or further

alteration or addition. As rightly submitted by the learned State Attorney, if

the appellant made any correction, alteration or addition it would have

been reflected in the verification clause. Our position is further fortified

with the verification made by PW4 that he recorded the cautioned

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.

On this ground of appeal, Mr. Tuthuru also complained that the

cautioned statement was procured after the appellant was tortured by

PW4. We are alive with the position of the law that the trial court has a

duty to consider all the surrounding circumstances leading to the

admission of the cautioned statement including whether the law was

complied with in extracting the said confessional statement and,

especially, where an accused person claims that he was tortured and is

backed by visible marks of injuries. We held so in the case of Steven s/o

17
Jason & 2 Others v. The Republic, Criminal Appeal No. 79 of 1999

(unreported) that:

"... it is common ground that the adm issibility o f


evidence during the tria l is one thing and the
w eight to be attached to it is a different m atter. In
this case, it is dear from the record that after
dosing the prosecution case, long after the caution
statem ent had been adm itted as exhibit P4, the
first appellant alleged in his defence that he made
the caution statem ent under torture .... it was
[therefore] incum bent upon the learned tria l Judge
to be more cautious in the evaluation and
consideration o f the cautioned statem ent."

In the present appeal, we observed that, in its judgment, the trial

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

evidence in chief of the appellant and the contents of exhibit P2

corroborated the prosecution evidence of PW1, PW2 and PW3. Further,

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.

In addition, we do not subscribe to the submission of Mr. Tuthuru

that PW4 fabricated the story. We say so because, the appellant was

interviewed immediately after his arrival at Bunda police station, therefore,

we strongly believe that the file had little information to enable PW4 to

extract any story for fabrication.

Regarding the ruling of the learned trial Judge, having revisited the

record of appeal, we observed that the irregularity discussed by the

learned trial Judge was not in respect of non-compliance with section 57

(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

that the second ground of appeal is meritless. We dismiss it.

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

relating to circumstantial evidence has long been settled in our jurisdiction

that, in order for the court to found a conviction on circumstantial

evidence, it must be satisfied that the inculpatory facts are inconsistent

with the innocence of the accused person and incapable of any other

reasonable hypothesis than that of his guilt -see: the cases of Ilanda

Kisongo v. R (1960) E.A. 780 at page 782; Abdul Mganyizi v. The


19
Republic (1980) T.L.R. 263; John Magula Ndongo v. The Republic

(Criminal Appeal No. 18 of 2004) [2005] TZCA 41 (30 August, 2005) and

Mathias Bundala v. The Republic (supra).

It is in that respect, in the case of R v Exall (1866) 4 F & F 922 at

929, 176 ER 850 at 853, Pollock CB compared the circumstantial evidence

with a rope comprised of several cords. He said:

"... One strand o f the cord m ight be insufficient to


sustain the weight, but three stranded together
m ay be quite o f sufficient strength. Thus, it m ay be
in circum stantial evidence - there m ay be a
com bination o f circum stances, no one o f which
would raise a reasonable conviction, or m ore than
a mere suspicion but the whole taken together,
m ay create a strong conclusion o f guilt, that is,
with as much certainty as human affairs can
require or adm it o f."

In this appeal, the trial court referred to ten strands of circumstantial

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

suspicion. With due respect to his submission, as rightly submitted by Ms.

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.

However, looking at the prosecution evidence, we find that the inculpatory

facts are inconsistent with the innocence of the accused person and

incapable of any other reasonable hypothesis than that of guilty. According

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

cross-examined as to why he was late, he gave three different accounts.

First, he claimed that he passed via another place to drink water.

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

submission made by the respondent as claimed by Mr. Tuthuru.

Furthermore, it was the evidence of PW1 that when she returned home at

around 10:00 hrs nobody was at home.

On the argument that there was no mention of the place where

mama Nyangoko saw the two children thus there is doubt on the

prosecution case, we do not wish to say much on this meritless complaint.

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

was found dead on the following day.

Therefore, taking into account these strands of evidence coupled

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

a strong conclusion of the appellant's guilt. Accordingly, we find that the

first, third and fifth grounds of appeal have no merit and we dismiss them.

Turning to the fourth ground of appeal, we agree with the counsel

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

home. However, if one weighs the prosecution evidence with the

appellant's defence, will find that there is no plausible explanation given by

him. It is trite law that if an accused person is alleged to have been the

last person to be seen with the deceased, in absence of a plausible

explanation to explain away the circumstances leading to the death, he or

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

aforethought. Accordingly, this ground of appeal lacks merit and we

dismiss it.

In the end, we find that the appeal was lodged without any merit.

Accordingly, we dismiss it in its entirety.

DATED at MUSOMA this 29th day of April, 2024.

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

the respondent/Republic, is hereby certified as a true copy of the original.

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