IN THE COURT OF APPEAL OF TANZANIA

AT TABORA
(CORAM: LILA. J.A.. FIKIRINI, 3.A. And KENTE, J J U

CRIMINAL APPEAL NO. 159 OF 2022

MBUZI LUSHONA @ MWANGAIKI........ ■
1st APPELLANT
JETI MWINTURO @ HOJA................... 2nd APPELLANT
SHIJA SAIZI @ LUGATA @ MWINTURO .3rd APPELLANT
VERSUS
THE REPUBLIC....................................... RESPONDENT
(Appeal from the Judgment of the Resident Magistrate's Court of
Tabora, at Tabora)

(Nsana. Ext. Jurist

dated the 23rd day of March, 2022

in
Criminal Session Case No. 20 of 2021

JUDGMENT OF THE COURT

12th August & 4th October, 2024

FIKIRINI. J.A.:

After hearing from five (5) prosecution and three (3) defence

witnesses and admission in evidence of four (4) exhibits from the

prosecution and one (1) from the defence, the trial Magistrate

honourable Seraphine Bernard Nsana, Senior Resident Magistrate with

extended jurisdiction (SRM, Ext-Juris) was convinced that the

prosecution case had been proved beyond reasonable doubt,

consequently the appellants were found guilty of murder and convicted.

What led to the present appeal is the charge of murder contrary to

section 196 of the Penal Code, Cap. 16 Revised Laws levelled against

the 1st appellant, Mbuzi Lushona @ Mwangaiki, 2nd appellant, Jeti

Mwinturo @ Hoja and the 3rd appellant, Shija Saizi Lugata @ Mwinturo,

that on 18th September, 2017, at 22.30 hours at Ugansa Village within

Urambo District in Tabora Region did murder one Shija Hindia. They all

refuted the allegation. They were convicted and are now appealing

against the decision.

Before we go into an in-depth determination of the appeal, a

summary of what transpired leading to the arrest of the appellants and

trial before the Resident Magistrate's Court of Tabora at Tabora

(Extended jurisdiction) in Criminal Session Case No. 20 of 2021, after

the transfer order dated 7th February, 2022, is essential. As stated

earlier, after the case was assigned to honourable Nsana, (SRM, Ext.

Juris), the prosecution called a total of five (5) witnesses and tendered

four (4) exhibits. In contrast, the defence had three (3) witnesses and

one (1) exhibit.

The evidence led in court through PW2-Fitina Mtoka, PW3-Elias

Mshema, and PW4-Stili Gobego, who were residents of Usinge village, is

that PW2 was informed by one of Mwinturo's wives that they had been

invaded and attacked. An alarm was raised, and villagers congregated at

Mwinturo's house, where one of his wives lived. Saizi Mwinturo, who had

spent a night at his other wife's house, was informed. On arrival at the

scene, he forthrightly concluded that the culprits were his sons, as there

was an ongoing family feud. This was about the 2nd and 3rd appellants’

complaint that their stepmother, Tekla Omary, was bewitching their

families. As for the 2nd appellant, his child was allegedly bewitched, and

for the 3rd appellant, the victim was his wife. Both victims of witchcraft

were reported dead at the time of the trial.

Based on their formed opinion, the 2nd and 3rd appellants are said

to have agreed and decided to take revenge. That is how the 1st

appellant came into the picture, as he was said to have been hired

allegedly by his co-appellants for TZS 500,000.00 to accomplish the

revenge. However, on the fateful night, the 1st appellant went to Tekla's

house, and instead of killing Tekla Omary, the 2nd and 3rd appellants'

stepmother, he allegedly mistakenly murdered one Shija India.

PWl-William Benedict Kaijage, a doctor at Ulyankulu Health

Centre, conducted a post mortem examination on the deceased's body

on 19th September 2017. His findings were that the deceased had

multiple cut wounds on the head. The wounds were deep to the extent
of failing to measure the depth of the cuts. He recorded his findings in a

post mortem report, which was admitted as exhibit PI.

The appellants were each arrested on different dates and times

and had their cautioned statements, which were the basis of their

conviction, recorded by PW5-H. 980 DC Alfa, a Police officer who, in

addition to visiting the scene of crime after the incident, arrested all the

appellants at different times and locations.

In their defence, all the appellants who testified as DW1, DW2 and

DW3, respectively, denied committing the offence.

At the end of the trial, the trial magistrate, relying on the

appellants' cautioned statements, convicted them. She opined that the

statements corroborated each other, showing how the plan was

conceived and executed. She banked on the case of Hatibu Gandhi &

Others v. R, [1996] T. L. R 12, regarding the principle that a retracted

uncorroborated confession, if truthful, can corroborate other evidence

against the confessor. Adding to that, the trial magistrate relied on the

decision in Twaha AM & 5 Others v. R, Criminal Appeal No. 78 of 2004

(unreported) in which it was held that, the best witness is an accused

person who confesses his guilt so long as the said confession is free

from the remotest taint of suspicion.

 Discontent with the decision, the appellants initially lodged their

separate memoranda of appeals on 19th September, 2022. However,

through their learned advocate, a supplementary memorandum of

appeal was lodged, abandoning the previously lodged memoranda of

appeals. The highlighted grievances demanding our attention were the

following:- one, the trial Magistrate failed to conduct adequate summing

up. Two, the cautioned statements (exhibits P2, P3 and P4) relied on to

convict the appellants were recorded in contravention of the law. Three,

the trial Magistrate convicted and sentenced the appellants based on

retracted/repudiated cautioned statements and four, the trial Magistrate

erred in law and fact to conclude that the charge had been proved

beyond reasonable doubt.

During the hearing, Mr. Kanani Aloyce Chombala, learned

advocate, appeared for alt the appellants, while Mr. Winlucky Mangowi,

learned State Attorney, appeared for the respondent/Republic.

Before he proceeded to address us, Mr. Chombala informed the

Court that he was dropping the fourth ground of appeal on the proof of

the case beyond reasonable doubt, arguing the second and third

grounds of appeal jointly, and the first ground on failure to adequately

sum up to assessors, separately.

 Granted, he proceeded by challenging exhibits P2, P3 and P4,

which are the appellant's cautioned statements recorded after their

arrest. His borne of contention is that they were wrongly relied upon to

ground a conviction: while those statements had, (i) been recorded

contrary to the dictates of section 57 (Z) (e) of the CPA, as they did not

indicate the time of starting and ending, the requirement which is

mandatory and (ii) those statements were repudiated/retracted.

Expounding on those cautioned statements, starting with exhibit

P3, appearing on page 124 through to page 128 of the record, he

argued that, the time when the recording commenced and ended had

not been reflected. As for exhibit P4, on page 129, he said the starting

time has been indicated, but not the finishing time. Only exhibit P2

complied with the requirement as the starting and ending times of the

recording were reflected. According to him, such recording is contrary to

what the law requires.

The counsel further submitted that, those statements were

recorded under section 57 of the CPA, where the proper recording style

is that of questions and answers, which did not feature in the three

recorded caution statements. The only requirement complied with was

certification under section 57 (3) of the CPA, citing the case of Msafiri
Emmanuel Daniel & Another v. R, (Criminal Appeal No. 194 of 2018)

[2020] TZCA 1925 (24th December, 2020; TANZLii), in which the Court

discouraged Police officers or investigators to act on their whims, the

Court stressed compliance with the provisions of the law during their

duties and assignments. The learned counsel compared the directive

given in the cited case to what transpired and invited us to find that the

cautioned statements were illegally obtained. Insisting on compliance

with the requirement, he underscored the point that the stipulated

procedure had to be followed so as to accord accused persons/

appellants a fair trial.

PW5's failure to record the said cautioned statements in the

manner prescribed, in Mr. Chombala's view, raised eyebrows, thereby

placing his credibility in disrepute. His disquiet stemmed from the fact

that PW5 visited the crime scene, interviewed people he met there, and

recorded statements. This is found on page 79 of the record. It was Mr.

Chombala's misgiving that PWS's failure to comply with the requirements

under either section 57 or 58 of the CPA had a reason. According to him,

the Police officer wanted to record his own statement with the

information gathered at the scene of crime, which could easily be done

by recording the statements in a narrative form rather than questions

and answers, implicating the appellants. He thus equated those

cautioned statements with those of PW5's own version and not of the

appellants. He prayed for all three statements to be expunged from the

record in the interest of justice.

In addition, the learned counsel queried PW5's motive since the

learned counsel was the only officer who recorded all three cautioned

statements, even though the appellants were arrested on different

dates. He wondered if PW5 was the only officer around at that Police

station.

Further, in his submission, he challenged the trial court's reliance

on the repudiated/retracted cautioned statements without warning itself,

especially after the admission of exhibit Dl-PW5's recorded statement.

He believed that had the trial Magistrate examined the cautioned

statements against exhibit D1 and PW5's oral account, she could not

have convicted the appellants.

The learned counsel gave a few examples of what the trial court

ought to have warned itself about to be: starting with DW1 - Mbuzi

Lushona Mwangaiki's account on page 94 of the record, who admitted

being arrested on 20th September, 2017; his statement was recorded on

21st September, 2017, after being tortured but did not remember how or
when he signed the alleged statement. Also, DW1 disputed knowing or

murdering the deceased. DW2, likewise, on page 97, indicated to have

been arrested on 18th August 2017, and upon arriving at the Police

station, he met his father, who was never summoned as a witness. As

for his statement, DW2 said it was recorded after being tortured by

PW5. DW3 stated that he was arrested in 2018, but his cautioned

statement indicated that it was recorded on 26th July, 2018, after exhibit

D1 had been recorded. The appellants' counsel wondered how PW5

could predict the arrest of DW3 almost a year later.

Faulting the trial Magistrate more, the counsel submitted that none

of the three cautioned statements contained any truth. Regrettably, the

trial Magistrate only discussed the contents of exhibits P2, P3 and P4

and said nothing about exhibit Dl, which was tendered to discredit

PW5's evidence. The learned counsel contended that there was no

thorough assessment and evaluation of the above evidence against that

of the prosecution. He expected the doubt raised would have been

resolved in favour of the appellants.

The learned counsel equally questioned why there were no

independent witnesses to corroborate the appellants' cautioned

statements. He also casted doubt on the prosecution's failure to call

Thekia Omary and Saizi Mwinturo as witnesses, the omission which

made PW2, PW3, and PW4's evidence hearsay.

On the 1st ground that summing up to assessors was inadequate,

referring us to pages 105 - 111 of the record of appeal (the record), the

learned counsel illustrated that, the duty of summing up to assessors

includes elaborating on the offence, ingredients to prove it, the evidence

adduced and legal principles involved such as common intention,

repudiated or retracted statements, the importance of corroboration and

its effect on the case and the weight of exhibit Dl, which none was

done in the present appeal. Failure to do so had limited assessors'

participation in giving an informed opinion. To fortify his submission, he

cited to us the cases of Sanda Kishosha @ Karuto & 3 Others v. R,

(Criminal Appeal No. 459 of 2021) [2023] TZCA 17581 (30th August,

2023; TANZLii), Shadida Issa @ Rasta & Omar Juma Kondo v. R,

(Criminal Appeal No. 125 of 2019) [2021] TZCA 574 (7th October, 2021;

TANZLii) and Matho Joshua @ Nyantori v. R, (Criminal Appeal No.

643 of 2020) [2024] TZCA 701 (9th August, 2024; TANZLii).

Winding up, he urged us to allow the appeal, quash the conviction,

set aside the sentence and order release of the appellants from prison.
 Prodded by us as to why did he drop the objection raised on

torture, Mr. Chombala's straight forward answer was that there was no

evidence as time passed. He also highlighted that being a point of law,

dealing with retracted or repudiated statements it can be raised

anytime. We poked him further as to what could the trial court do? Once

again, he made it clear that, trial within a trial was the proper procedure

to follow, but that could not take effect during the defence stage of the

case.

On corroboration of the cautioned statements by exhibit PI, which

is a post mortem report, the learned counsel discounted that evidence

as could not sufficiently corroborate the three cautioned statements,

assigning the reason that what is contained in exhibit PI varies with

PWl's oral evidence. Still, under the Court's probing, learned counsel

was invited to read section 169 of the CPA and asked to comment on

whether every contravention was fatal. His response after reading the

provision was that, the murder charge is a serious offence by its nature,

so its investigation must be thoroughly done considering the heavy

punishment involved. However, in this case, that could not be done as

Thekla Omary, who was alleged to be the targeted person, was never

summoned as a witness, the learned counsel stressed.

 On the way forward, he urged us to examine and see if there is

evidence and then order the record to be remitted for proper summing

up and composition of a fresh judgment.

Mr. Mangowi, on his part, supported the appeal. He started with

the first ground on inadequate summing up to assessors, to which he

conceded was the case. Supporting his stance, he referred us to the

case of Sanda Kishosha @ Karuto & 3 Others v. R, (supra). On the

way forward, he suggested returning the record to the trial court for

fresh summing up, and if the trial court finds that there is good

evidence, then the appellants may be convicted.

Arguing on the three remaining grounds, the learned Counsel

contended that, since there was no eye witness to the murder, the

evidence relied on was only that of the three cautioned statements.

However, those statements fell short of the required standard as they

did not show when the 1st and 3rd appellants were arrested and their

statements recorded. It was, therefore, challenging to say if they were

recorded in compliance with the law that they should be recorded within

four hours unless there is a reason for not doing that. As for exhibit P2,

found on pages 121 -124 of the record, the learned counsel submitted

that the statement was recorded within time. According to him, the
statement has no problem compared to exhibits P3 and P4. The concern

is whether they were recorded within four hours prescribed, to which his

answer was negative. To buttress his submission, he cited the case of

Ester Jofrey Lyimo v. R, (Criminal Appeal No. 123 of 2020) [2022]

TZCA 197 (14th April, 2022; TANZLii), in which the Court resolved the

doubt which arose as to when the appellant was arrested in favour of

the appellant.

The learned counsel urged us to expunge exhibits P3 and P4 from

the record. Indeed, that will negatively impact exhibit P2, as it will have

no legs to stand on. Admitting that the trial Magistrate relied on the

three cautioned statements to corroborate each other, he argued that,

once exhibits P3 and P4 are expunged, there would be no evidence to

corroborate exhibit P2, which would have implicated the 2nd appellant.

On that account, he also hesitated to seek an order for retrial. When

engaged on whether every contravention is fatal in light of section 169

of the CPA, the learned counsel conceded that not every contravention

of the rules of procedure is fatal.

For his part, Mr. Chombala had nothing to rejoin besides

reiterating his earlier submissions.

 When the first appellate court sits on appeal, it does so in the form

of re-hearing, as illustrated in Peter v. Sunday Post (1958) 1 E. A,

424, Vuyo Jack v. R, (Criminal Appeal No. 334 of 2016) [2018] TZCA

322 (13th December, 2018; TANZLii) and Trazias Evarista @

Deusdedit Aron v. R, (Criminal Appeal No. 188 of 2020) [2021] TZCA

697 (29th November, 2021; TANZLii) to name a few. In this instance, we

would, therefore, critically and objectively examine the evidence and

come up where necessary with our own conclusion.

After thoroughly and carefully considering the concurring

submissions from the learned counsel for the parties and examining the

record of appeal, without doubt, we agree that there are irregularities.

Our point of determination is thus whether the pointed out procedural

irregularities affect the entire proceedings.

We start with the law governing the time for the recording of

cautioned statements, this is provided for under section 50 (1), which

states

"50.- (1) For the purpose o f this Act, the period

available for interviewing a person who is in
restraint in respect o f an offence is-

(a) subject to paragraph (b), the basic period

available for interviewing the person, that is to
 say, the period o f four hours commencing at the
time when he was taken under restraint in
respect o f the offence;

(b) if the basic period available for interviewing

the person is extended under section 51, the
basic period as so extended."

From the provision, it is prescribed that the time of four hours

starts running from when the suspect has been placed under restraint.

Therefore, it is incumbent upon the prosecution to establish the time of

arrest, without which it will not be known whether the cautioned

statement was recorded within the time prescribed by the law. Since

that was not established in the present case, it is difficult to conclude

that the cautioned statements were properly procured. See: Ester

Jofrey Lyimo (supra).

The irregularity also extended to the fact that the 2nd and 3rd

appellants cautioned statements were recorded contrary to the dictates

of section 57 (2) (a) (d) of the CPA, which requires the statement to be

in the form of questions and answers rather than in a narrative form.

We agree with Mr. Chombala who, relying on the decision in Msafiri

Emmanuel Daniel (supra), argued that, since the provisions were not

superfluously added to the Act, the Police officers recording suspects'

cautioned statements under both sections 57 and 58 of the Evidence Act

must fully comply with the requirement. Section 57 of the CPA mainly

directs the recording of the interview of the suspect, which must be in

the form of questions and answers.

This is different from the application of section 58 of the CPA,

which becomes applicable when a suspect wishes to record his own

statement. However, the requirements stipulated under the said

provisions had to be complied with cumulatively and mandatorily in both

instances.

The Court underscored the importance of adhering to the

mandatory provisions outlined in the CPA regarding the recording of

cautioned statements. In the case of Msafiri Emmanuel Daniel

(supra), the Court highlighted that any deviations from the established

protocols, particularly sections 50 and 51 of the CPA, render such

statements inadmissible.

Reinforcing on following the obligatory procedures, the Court in

Juma Nyamakinana & Another v. R, Criminal Appeal No. 133 of

2011, whereby the case of Mussa Mustapha Kusa & Another v. R,

Criminal Appeal No. 126 of 2011 (both unreported), emphasized that

non-compliance with sections 57 and 58 of the CPA not only

compromises the integrity of the investigation but also violates the rights

of the accused. All the decisions referred above clearly indicate that the

validity of cautioned statements hinges on strict adherence to the

provided procedural requirements, thereby reinforcing the necessity for

law enforcement officers to conduct investigations with diligence and

respect for legal standards.

In essence, any failure to comply with these provisions not only

undermines the evidence gathered but may also jeopardize the

prosecution’s case, ultimately leading to a miscarriage of justice. The

Court's stance serves as a crucial reminder to maintain rigorous

standards in the investigative process, ensuring that all procedures are

followed to uphold the rule of law. In the latter case of the Court held

that:-

"We should quickly point out that these

elaborate provisions were not superfluously
added to the Act They had a specific purpose.
Having been enacted after the inclusion o f the
basic right o f equality before the law, in our
constitutionthey were purposely added as
procedural guarantees to this right For this
reason, thereforef police officers recording
suspects cautioned statements under both
 sections 57 and 58 of the Act have an
unavoidable statutory duty to comply fully
with these provisions. They cannot, at the
risk of rendering the statement invalid,
choose and pick which requirements to
comply with and which ones to disregard
The conditions stipulated in these two
sections are cumulative and the duty
imposed is mandatory/' [Emphasis added]

No other option has been specified under the said provision, nor

did PW5 explain why he opted for a narrative statement rather than

questions and answers. If there were any questions and answers in the

three cautioned statements, they were found on the first pages on

whether the suspect was ready to record his cautioned statement or not,

as shown on page 121 for exhibit P2, page 125 for exhibit P3 and page

129 for exhibit P4. Otherwise, the rest of the recorded statement was

not in the form of questions and answers, as required by the quoted

provision. The cautioned statement recorded under section 57 of the

CPA must adhere to the requirements. For ease of reference, the

provision is reproduced below:-

"57 (1) A police officer who interviews a person

for the purpose o f ascertaining whether the
 person has committed an offence shall, unless it
is in ail circumstances impracticable to do so,
cause the interview to be recorded.

(2) Where a person who is being interviewed by

a police officer for the purpose o f ascertaining
whether he has committed an offence makes,
during the interview, either orally or in writing, a
confession relating to an offence, the police
officer shall make or cause to be made, while the
interview is being held or as soon as practicable
after the interview is completed, a record in
writing, setting out-

(a) so far as it is practicable to do so, the

questions asked of the person during the
interview and the answers given by the
person to those q u e s t io n s [Emphasis
added]

Unless the investigator, which the record does not show, asked

the suspect to tell his story, then the investigator may proceed to record

the suspect's story without interrogating him. And essentially, that would

have been done under section 58 (4) of the CPA and not under section

57, which strictly requires questions and answers. Failure by the police

officer to comply with the requirements cannot be glossed over. All

three cautioned statements suffer this glitch. See: Seko Samwel v. R,

(Criminal Appeal No. 7 of 2003) [2005] TZCA 101 (11th March, 2005;

TANZLii).

We have also read the provision to fathom if the interpretation

made by the learned State Attorney is what the phrase "so far as it is

practicable" meant. Our understanding of the phrase is that it was about

recording the statement right after an interview and not allowing the

investigator or giving the option to record the cautioned statement in

the form of questions and answers or narrative. The learned State

Attorney's explanation on page 83 of the record is misconstrued even

though the appellants were cautioned as required under section 57 (2)

(d) of the CPA.

Adding salt to a fresh wound, is non-compliance with the provision

of section 57 (2) (e) of the CPA, which requires the time when the

interview commenced and completed to be reflected. The provisions

states thus:

(e) the times when the intervie w was

commenced and completed; and..."

Both learned counsel acknowledged non-compliance with the

provisions. While there was no problem with the 2nd appellant's

cautioned statement, exhibit P2, as both starting and ending times were
shown, exhibits P3 and P4 had issues. In exhibit P3, the 3rd appellant's

cautioned statement found on pages 125 - 128 of the record, had

neither the starting nor completion time. While that is not the case in

exhibit P4, the 1st appellant's cautioned statement on pages 129 -132 of

the record, indicates the starting time but no ending time. Consistent

with our previous decision in Msafiri Emmanuel Daniel (supra), we

wish to observe that the provisions of sections 57 and 58 of the CPA

were not superfluously added to the Act. They were illustratively coined

placing a strict obligation on the Police officers to strictly comply with all

the requirements, of which in the present appeal, exhibits P3 and P4

specifically fell short of compliance with section 57 (2) (e) of the CPA.

Being the first appellate court and knowing that in terms of section

169 of the CPA, not every infraction excludes evidence presumably

illegally obtained, we examined the provision to see if it could be applied

to salvage the three cautioned statements in the circumstances of this

case. The provision provides as follows:-

"169.-(1) Where, in any proceedings in a court in

respect o f an offence; objection is taken to the
admission o f evidence on the ground that the
evidence was obtained in contravention of, or in
consequence o f a contravention of, or o f a failure
to comply with a provision o f this Act or any
other law, in relation to a person, the court shaii,
in its absolute discretion, not admit the evidence
uniess it is, on the balance o f probabilities,
satisfied that the admission o f the evidence
would specifically and substantially benefit the
public interest without unduly prejudicing the
rights and freedom o f any person.

(2) The matters that a court may have regard to

in deciding whether, in proceedings in respect of
any offence, it is satisfied as required by
subsection (1) include-

(a) the seriousness o f the offence in the course

o f the investigation o f which the provision was
contravened, or was not complied with, the
urgency and difficulty of detecting the offender
and the urgency or the need to preserve
evidence o f the fact;

(b) the nature and seriousness of the

contravention or failure;

(c) the extent to which the evidence that was

obtained in contravention o f in consequence of
the contravention o f or in consequence o f the
failure to comply with the provision o f any law,
might have been lawfully obtained; and
 (d) all the circumstances o f the offence, including
the circumstances in which the evidence was
obtained.

(3) The burden o f satisfying the court that

evidence obtained in contravention of, in
consequence o f the contravention of, or in
consequence o f the failure to comply with a
provision o f this Act should be admitted in
proceedings lies on the party who seeks to have
the evidence admitted.

(4) The court shall, prior to exclusion o f any

evidence in accordance with subsection (1), be
satisfied that the failure or breach was significant
and substantial and that its exclusion is
necessary for the fairness o f the proceedings.

(5) Where the court excludes evidence on the

basis o f this provision it shall explain the reasons
for such decision."

It is a settled position that, a cautioned statement recorded out of

time and/or without compliance with the mandatory requirement is

inadmissible in evidence. See: Abdallah Kulukuni v. R, (Criminal

Appeal No. 131 of 2016) [2017] TZCA 262 (12th July, 2017; TANZLii) and

Mohamed Juma @ Mpakama v. R, (Criminal Appeal No. 385 of 2017)

[2019] TZCA 518 (27th February, 2019; TANZLii) and Ester Jofrey

Lyimo (supra).

The Court has nevertheless been applying section 169 of the CPA

to rescue the inadmissible cautioned statements, especially those

recorded outside the prescribed time, in situations where it is possible. A

good example is the case of Chacha Jeremiah Murimi & Others v.

R, (Criminal Appeal No. 551 of 2015) [2019] TZCA 52 (4th April, 2019;

TANZLii). Despite making a finding that the cautioned statement was

recorded out of time, the Court stated that the irregularity could not

invalidate the cautioned statement considering the dictates of section

169 of the CPA by going beyond and considering that the case attracted

high public interest and its investigation was complicated. Above all, the

information contained in those statements was relevant to the fact in

issue. In addition, the Court examined how the appellant was prejudiced

for failing to record the statements within the four hours prescribed.

Considering the observations in Chacha Jeremiah Murimi

(supra) and comparing them with the circumstances existing in the

present appeal that is, being restrained for an extended period without a

credible explanation, we find that it might be prejudicial to the suspect.

This is because prolonged restraint is considered as a form of torture, as

it induces anxiety and uncertainty about the suspect's fate.

Consequently, such circumstances often lead to the presumption that,

torture was employed to extract a confession regarding commission of

the alleged offence. The requirement that cautioned statements be

recorded within four hours of the suspect's restraint appears to be

aimed at safeguarding human rights and preventing unfair treatment of

criminal suspects. Any delay beyond the four-hours' window, without

justification, is undeniably detrimental to the suspect, as illustrated in

the case of Emmanuel Malabya v. R, Criminal Appeal No. 212 of 2004

(unreported).

Therefore, whereas section 169 of the CPA can be applied, the

utmost precaution to be taken is that, while public interest is of the most

significant importance, it should be observed without prejudicing the

rights and freedom of the suspect. See: Rashid Omari v. R, Criminal

Appeal No. 106 of 2020 (unreported).

The application of section 169 of the CPA was also discussed

elaborately in the case of Jibril Okash Ahmed v, R, Criminal Appeal

No. 331 of 2017 (unreported). The main discussion was that for section

169 (2), to apply, the requirements under the provision should be

complied with cumulatively.

 Undeniably, murder is a serious offence calling for capital

punishment. Though this requirement under section 169 (2) (a) of the

CPA has been satisfied, nonetheless, the prosecution in this case has, in

our view, failed to justify failure to record the cautioned statements

within the prescribed time as required under section 50 (1), failure to

observe the requirements under section 57 (2) (a) and (e) 57 of the

CPA. We find the omissions fatal. This differs from what happened in

Chacha Jeremiah Murimi's case (supra). In that case, there were

reasons for the Court's decision. The Court looked at the high public

interest, complications in the investigation, and information contained in

those cautioned statements. There is nothing showing that the

investigation in the present appeal was complicated, besides the delay in

arresting the 3rd appellant in 2018 for an offence committed in August

2017. Therefore, applying section 169 of the CPA seems unnecessary, as

it might encourage laxity among investigators and the suspects would

easily be exposed to mistreatments and prejudices.

We have closely examined PW5's evidence, and his statement was

admitted as Dl; nothing was exhibited to indicate complications, as it

was in Chacha Jeremiah Murimi's case (supra). What can be said is

that all in all, PW5 lacked diligence in his investigation undertaking. Had
the trial Magistrate cautiously compared the witness statement with the

cautioned statements, she likely would not have convicted the

appellants. Exhibits P3 and P4, deserved to be expunged from the

record as, we hereby do.

Expunging of exhibits P3 and P4 leaves exhibits PI and P2 as the

only remaining evidence. However, exhibit P2 also suffered the shortfalls

experienced in exhibits P3 and P4, as it was recorded contrary to section

57 (2) (a) without indicating questions and answers as it were to

exhibits P3 and P4. But, assuming that the infraction is minor as per the

decision in Ramadhan Salum v. R, Criminal Appeal No. 5 of 2004

(unreported), the question is, can it be used to implicate the 1st and 3rd

appellants? The answer is no. According to section 33 (2) of the

Evidence Act, conviction of an accused person cannot be solely based on

a confession of a co-accused. The oral evidence of PW1, PW2, PW3,

PW4, PW5 and PW6 and exhibit PI - Post mortem report, did not

implicate the appellants, making a case against them not proved.

Considering the above discussion, we find that remitting the record

to the High for proper summing up will occasion an injustice to the

appellants, as there is no cogent evidence to prove a case against them.

 In conclusion, we find the appeal meritorious and we allow it. All

the appellants should be released from prison unless lawfully held for

other reasons.

DATED at DAR ES SALAAM this 3rd day of October, 2024.

S. A. LILA
JUSTICE OF APPEAL

P. S. FIKIRINI
JUSTICE OF APPEAL

P. M. KENTE
JUSTICE OF APPEAL

The Judgment delivered via Video Conference linked from Tabora

High Court this 4th day of October, 2024 in the presence of the

appellants and Ms. Anneth Makunja, learned State Attorney for the

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

0. H. KINGWELE
DEPUTY REGISTRAR
COURT OF APPEAL