IN THE COURT OF APPEAL OF TANZANIA

AT MUSOMA

(CORAM: SEHEL. J.A., FIKIRINI. J.A. And ISSA. J.A.^

CRIMINAL APPEAL NO. 538 OF 2020

EMMANUEL@MAGESA C H A C H A ............................................................ 1st APPELLANT

MWITA MAGABE B W A N A ...................................................................... 2 nd APPELLANT

VERSUS

THE R EP U B LIC .........................................................................................RESPONDENT

(Appeal from the Judgm ent of the High Court of Tanzania sitting at Bunda
District Court at Bunda, Musoma)

(Galeba, 3 .)

dated the 15th day of October, 2020

in
Criminal Sessions No. 45 of 2019

JUDGMENT OF THE COURT

24th April, & 2nd May, 2024.

FIKIRINI, J.A.:

Before the High Court of Tanzania, convened at the Bunda District

Court in Bunda, Emmanuel Magesa Chacha and Mwita Magabe Bwana,

identified as the first and second appellants respectively, stood accused of a

single count of murder under section 196 of the Penal Code, Cap. 16 R. E.

2002. The charges stemmed from allegations that the appellants unlawfully

entered, fatally assaulted and murdered Mroso Ryoba on 25th September,

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2018, at Kihumbu village within Bunda District, Mara region, in the presence

of his wife, Mwajuma Chacha.

Both appellants pleaded not guilty to the charge. Nevertheless, after

the testimonies of the four prosecution witnesses: Magwega Ryoba (PW1),

Kohomba Kiraba Kohomba (PW2), Kabengwe Mathias Kabengwe (PW3), and

Mwajuma Chacha (PW4) and the subsequent appellants defence, in which

they were sole witnesses who testified as DW1 and DW2, along with the

admission of four exhibits: a sketch map of the crime scene (exhibit PI), the

post mortem examination report (exhibit P2), the identification parade

register (exhibit P3), and PW4's statement (exhibit P4), the trial court

concluded that the prosecution had sufficiently established and proved its

case beyond a reasonable doubt. As a result, the court found the appellants

guilty, leading to their conviction and sentencing to death under section 197

of the Penal Code. Displeased with the verdict, the appellants have lodged an

appeal with this Court, each presenting various grounds of grievances.

The genesis of the prosecution case, leading to the contested

conviction, can be summarized as follows: On the fateful night, at

approximately 9:00 pm, the deceased and his wife - PW4, were asleep in

their bed. They were startled by a knock on the door, falsely claiming to be
police officers from Bunda. Acting on the perceived authority, the deceased

opened the door while PW4 remained seated on the bed. Upon entry, the

assailants who were three in number instructed PW4 to lie down. She obeyed

and lied down. However, that did not stop PW4 from identifying the two of

the appellants namely: Mwita Magabe Bwana, who had an axe, and Magesa,

who had a machete. The third assailant, stationed at the door with a firearm,

remained unidentified. Despite being in bed, PW4 was able to discern the

appellants' identities by the light of their torches.

While in the room, the appellants assaulted the deceased throughout,

demanding to be given money. In the midst of the assault an order to shoot

was made, and the deceased was shot on the thigh. Subsequently, the

second appellant fatally struck the deceased on the head with an axe.

Succumbing to the demand, a sum of TZS. 200,000/= was drawn and taken

by the second appellant from the deceased's trousers. Following the attack,

the assailants fled, prompting PW4 to raise an alarm.

PW1, who is PW4's brother-in-law, was the first to arrive at the scene.

From PW4, he learnt that the perpetrators were the second appellant, Mwita

Magabe, a resident of Kihumbu, and Magesa, who wielded a machete during

the attack. PW1 promptly reported the incident to Bunda Police Station, who
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responded the following day. Subsequently, the appellants were arrested on

different dates. An identification parade, supervised by PW3, a Police

Inspector, and with participation from PW2, took place on 16th October, 2018.

PW4 was invited to the Bunda Police station to participate in the

identification parade, during which she identified Magesa. However, during

the trial, PW4 recanted her identification of the first appellant. She told the

court that she identified one Magesa Magire. Caught unaware, the twist in

PW4's testimony, made the prosecution to request for PW4 to be declared

hostile under section 164 (1) (c) of the Tanzania Evidence Act, Cap. 6 R.E.

2002 (the TEA). The trial Judge granted the prosecution's request and

discharged PW4. Despite being discharged, the trial Judge heavily relied on

PW4's evidence in convicting the appellants and subsequently imposing the

earlier mentioned sentence.

The appellants have raised several grounds in their memoranda of

appeal, filed on 30th April, 2021, and 4th May, 2021, respectively. A

supplementary memorandum of appeal was lodged by the second appellant

on 19th April, 2023. The first appellant presented eight grounds, while the

second appellant initially had five grounds in the memorandum of appeal and

added three grounds in his supplementary memorandum of appeal.

 During the appeal hearing, Messrs. Majura Magafu, Cosmas Tuthuru,

and Leonard Elias Magwayega, all learned advocates, represented the first

and second appellants, respectively. Mr. Tawabu Yahya Issa, a learned State

Attorney, appeared for the respondent/Republic.

When invited to present their arguments to the Court, Mr. Majura

began by consolidating the first appellant's grounds of appeal from eight to

three. These condensed grounds can be summarized as follows: first, the

failure by the prosecution to establish and prove its case beyond a reasonable

doubt; second, inadequacy of the identification of the first appellant leading

to conviction; and third, failure by the trial court to consider defence of the

a lib i raised by the first appellant.

Mr. Magwayega, similarly streamlined the grounds of appeal from nine

to three, which are paraphrased as follows: firstly, the lack of proper

identification of the second appellant, rendering the conviction unjustified;

secondly, the failure by the prosecution to prove the case beyond a

reasonable doubt; and thirdly, the court's disregard of the defence of alib i

despite prosecution's failure to disprove it.

Addressing the Court, Mr. Majura in his submissions argued that PW4,

the deceased's wife and the sole eyewitness, provided uncertain testimony.
He pointed out that PW4 mentioned a person named Emmanuel Chacha

Magesa during an identification parade on 16th October, 2018, as

documented in exhibit P3. However, the name "Emmanuel Chacha Magesa"

did not match the name in the information filed on 30th December, 2019.

Despite this discrepancy, the prosecution never sought to amend the charge

sheet under section 234 (1) of the Criminal Procedure Act, Cap. 20 R. E. 2019

(the CPA). This raised doubts about whether the suspect present at the

identification parade was the same person as the one before the court.

Although the Judge concluded that the names could be used interchangeably,

Mr. Majura disputed this finding as incorrect and unsupported.

It was his extended submission that during the hearing at the trial

court, as indicated on page 49 of the record of appeal, PW4 testified to

identify someone named Magesa Magire who was not present in court. This

discrepancy not only raised doubts but also presented additional

complications. Mr. Majura treated the exhibit P3 - the identification register,

as no longer reliable, suggesting that its information may have been

tampered with. He insinuated that instead of the name "Emmanuel Chacha

Magesa" mentioned by PW4, the name "Emmanuel Magesa Chacha" was

inserted. The prosecution was dismayed by PW4's apparent manipulation of

6
evidence, prompting the learned State Attorney to declare the witness hostile

under section 164 (1) (c) and 154 of the TEA as reflected on page 53 of the

record of appeal.

Mr. Majura further contended that since there was no exact order

declaring the witness hostile, the prosecution's move of withdrawing PW4's

testimony entirely and the court's reaction to discharge PW4 from the witness

stand meant, even her previous testimony could no longer be used. The

implication of the prosecution's move and court discharge order are that: (i)

the prosecution had no valuable eye witness to support the prosecution case

and (ii) since PW4 was discharged before being cross-examined her

testimony could not be used as it is unreliable. Without PW4's evidence the

prosecution case crumbled down and the Judge's findings that PW4 was

corrupted were unsupported and should be ignored, emphasized, Mr. Majura.

Supporting his submission Mr. Majura referred us to the cases of Jumanne

Athuman Mketo v. R [1982] T. L. R. 232 and Teddy Lukas v. R [1977] L.

R. T. 33

Augmenting his submission, Mr. Majura argued that the prosecution

must prove its case beyond reasonable doubt unless otherwise stated. That is

missing in the present appeal, since the prosecution has failed to fulfil its
obligation. He cited the case of Mohamed Said Matula v. R [1995] T. L. R.

3 in which the Court stressed on the requirement for the prosecution to prove

its case beyond a reasonable doubt and proceeded to beseech us to quash

the conviction, set aside the sentence, set the first appellant free and

released him from prison.

Mr. Tuthuru's submission was in regard to other areas which we think

we should not labour on much, since the point on PW4's flawed evidence is

our main focus and it will suffice to dispose of the appeal entirely.

Mr. Magwayega on his part, submitting in defence of the second

appellant, questioned if it was proper for the Judge to consider PW4's

evidence after she was declared hostile. Answering the question, he

contended that after the court had noted the learned State Attorney's prayer,

which to him translated it agreed with the prayer and proceeded to discharge

PW4 as a witness. The outcome of the decision was that the defence could

not cross-examine PW4 as required under section 147 of the TEA. And by so

doing, they were denied opportunity to test and shake the reliability of PW4's

evidence. To persuade the Court, he cited to us the case of The DPP v.

Lengai Ole Sabaya & 2 Others, (Criminal Appeal No. 231 of 2022) [2023 ]

TZCA 17853 (17th November, 2023: TANZLII), in which the Court concluded
that failure to cross- examine the witness, compelled them to expunge the

whole testimony given by the said witness.

Relating the finding to the situation in the present case, Mr.

Magweyega stated that PW4's testimony should suffer the same wrath. And

once that has been done nothing remains, she being the only eye witness.

Challenging the Judge's efforts to justify his reliance on PW4's testimony, he

contended that while the Judge had already indicated in the ruling of no case

to answer that based on evidence of PW1 and PW3, the prim a facie case has

been established and called upon the appellants to defend themselves, there

is no way the Judge could therefore go back to PW4's testimony. Even with

the description of her demeanour which was not supported by the record of

proceedings, the Judge erred in trying to collect all possible evidence to

enhance PW4's account. In the upshot, he urged us to allow the appeal,

quash the conviction, set aside the sentence and release the second

appellant from prison.

Mr. Issa, learned State Attorney, on his part, admitted that it was the

prosecution’s duty to prove its case beyond reasonable doubt as required in

terms of section 3 (2)(a) of the TEA. In the present appeal, PW4 who was

their main witness, her evidence was not properly taken. This occurred
9
during her testimony when the prosecuting learned State Attorney opted to

declare PW4 a hostile witness but the procedure to do so as illustrated under

section 163 of the Evidence Act, was not followed. He cited the cases of

Jumanne Athmani Mketo and The DPP v. Lengai Ole Sabaya & Others

(supra) to support his submission. In Jumanne Athmani Mketo, the

procedure to declare the witness hostile was explained while in The DPP v.

Lengai Ole Sabaya & Others, the Court demonstrated outcome of not

availing the adverse party an opportunity to cross- examine a witness. Failure

to follow the properly established procedure, considering PW4 was the only

eye witness, left the prosecution with no any other evidence to support its

case. Against that backdrop he supported the appeal, and prayed for the

conviction to be quashed, sentence set aside and the appellants be released

from prison, unless lawfully held for other reasons.

Rejoining, Mr. Magafu reiterating his earlier submission, he however,

picked on Mr. Issa's submission related to the decision in the DPP v. Lengai

Ole Sabaya's case (supra). Dismissing, the learned State Attorney's

submission, he argued that in the cited case the witness was present in court

only that was not cross-examined whereas in the present appeal, the witness

was discharged without the defence side cross-examining her. The issue of

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expunging PW4's evidence therefore could not arise, as there was no valid

evidence from PW4 forming part of the record.

Mr. Magweyega, as well reiterating his earlier submission, simply

remarked that the case was poorly investigated and prosecuted.

The determination of the appeal before us should not detain us long.

This is because counsel for the parties and the learned State Attorney, are at

one that the prosecution case was not proved beyond reasonable doubt as

required under section 3 (2) (a) of the TEA. Failure to achieve that affords

the appellants a benefit of doubt. It is also a cardinal principle that unless

otherwise stated the accused has no duty to prove his innocence at most, he

can raise doubts by poking holes in the prosecution case. Equally elementary

is that the burden of proof is beyond reasonable doubt and the burden never

shifts except where legally stated. Also, that conviction should in no way be

based on the weakness of the appellant's case. We have illustrated and

emphasized that through our previous decisions such as Mohamed Said

Matula (supra); John Nkize v. R [1995] T. L. R. 213; Joseph John

Makune v. R [1986] T. L. R. 44; Paulo Magendo & Ano. v. R [1993] T. L.

R. 219 and John Makolobela Kulwa Makolobela & Ano. v. R [2002] T. L.

R. 296 to name a few.

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 In the instant appeal, the prosecution case crumbled down after the

prosecution failed to properly follow the procedure to declare a witness

hostile, even though as stated in Terry Lucas' case (supra) giving

unfavourable testimony is not enough evidence to declare the witness hostile.

This is because sometimes it is necessary to hear from the witness on the

questionable answers. Unfortunately, in the present appeal that was not

opted for, instead the prosecution proceeded to declare its witness hostile.

The procedure for declaring a witness hostile in our jurisdiction is

governed by section 163 of the TEA, which states thus:

"The court may; in its discretion, perm it the person

who calls a witness to put any question to him which
m ight be out in cross-exam ination by the adverse
party . "

What can be translated from the provision is that a party intending to do that

must first seek and obtain leave of the court to cross-examine its own

witness it believed had turned hostile. The rationale behind the declaration is

to discredit the testimony of that witness completely. The procedure to be

followed had been discussed in our other decisions such as Teddy Lukas

(supra); Inspector Baraka Hongoli & 2 Others v. R, Criminal Appeal No.

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238 of 2014 (unreported); Republic v. Donatus Dominic @ Ishengoma

& 6 Others, (Criminal Appeal No. 262 of 2018) [2019] TZCA 115 (9th May,

2019: TANZLII); Republic v. Fabian Paul, Criminal Appeal No. 14 of 1999

(unreported) and Nehemia Rwechungura v. R, (Criminal Appeal No. 71 of

2020) [2021] TZCA 704 (30th November, 2021:TANZLII). However, the best

place where the procedure to declare a witness hostile can be drawn from

the case of Jumanne Athuman Mketo (supra) which has been cited with

approval in most of the decisions referred to above. In Jumanne Athuman

Mketo (supra), the court had the following in its direction on the procedure

of how to declare a witness hostile by stating the following:

"Having made up his m ind to treat the witness as

"hostile " the party should after showing a copy o f the
w itness' previous statem ent to the court, form ally
apply to the court for leave to do so. The court should
then hear the opposite party if he has any objection to
the application. Then after comparing and contrasting
the evidence o f the witness and the contents o f his
statement\ and after considering the witness's
demeanour in the witness box, as w ell as the
objections, if any, from the opposite party, the court
should make its ruling on the application. I f the court
grants it, the applicant should then proceed to
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 attem pt to discredit the evidence o f the witness by
way o f cross-exam ination."

Several critical procedural errors marred the handling of PW4's

testimony in the present appeal, ultimately undermining its validity and

reliability. There was no proper application made under section 163 of the

TEA, and no leave was granted by the court to treat PW4 as a hostile

witness. Additionally, neither an explanation from PW4 regarding her

testimony versus her previous statement nor objections from the opposing

party were solicited, as required by section 163 of the TEA. Crucially, no

ruling was made by the court on the application, leaving the matter

unresolved. Instead, the court simply noted the submission by the learned

State Attorney and discharged the witness, which was procedurally incorrect.

More so, by reacting as it did the trial court abdicated its duty, of declaring a

witness hostile to the learned State Attorney, the role which has been vested

in the court.

By discharging PW4 without allowing cross-examination by the defence,

the proceedings related to her testimony became invalid due to irregularities.

Consequently, PW4's evidence, including her statement - exhibit P4, lost its

evidential value. Despite the trial Judge's justifications, PW4's clear statement

14
while under oath and on the stand, identifying someone other than the first

appellant, indicated a repudiation of her earlier statement. While PW4 may

have been speaking the truth, but since the prosecution was not amused

they had the right to process her as they wished, only that the procedure was

flawed leading to PW4 being withdrawn and discharged as the prosecution

witness.

After PW4 was discharged without cross-examination by the defence,

her entire testimony, including exhibit P4, became unreliable and of no value.

As the sole eye witness to the events of the fateful night and her participation

in the identification parade, which was also tainted with irregularities, there

were no other witnesses to salvage the prosecution's case. PWl's evidence

was hearsay so could not be relied on. Similarly, PW2 who took part in the

identification parades, his evidence could not fortify the weakened

prosecution case. After all his evidence was hearsay. PW3 the Police officer

who conducted the identification parade his account also, dwindled after

PW4's was discharged. The effect of PW1, PW2 and PW3 was essentially to

buttress PW4's account, without which their respective testimonies were

scattered and could not patch together a credible prosecution case. All these

15
shortfalls weighed heavily on the prosecution case. As a result the

prosecution failed to prove its case to the hilt.

From the above analysis and stated reasons, we find merit in the

appeal and proceed to allow it. As a result the appellants' conviction is

quashed, sentence set aside and order their release from prison unless

lawfully held for other legal reasons.

DATED at MUSOMA this 2nd day of May, 2024.

B. M. A. SEHEL
JUSTICE OF APPEAL

P. S. FIKIRINI
JUSTICE OF APPEAL

A. A. ISSA
JUSTICE OF APPEAL

The Judgment delivered this 2nd day of May, 2024 in the presence of

Mr. Cosmas Tuthuri also holding brief for Mr. Majura Magafu, learned

advocate for the 1st Appellant and Mr. Leornard Elias Magwayega, learned

counsel for the 2nd Appellant and Mr. Abdulkheri A. Sadiki, learned State

Attorney for the Respondent/Republic, is hereby certified as a true copy of

the original.