IN THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

(DAR ES SALAAM SUB-REGISTRY)

AT DAR ES SALAAM

CRIMINAL SESSION CASE NO.103 OF 2018

RUPUBLIC………PROSECUTOR

VS

1. MIRIAM D/O STEVEN MRITA……….1ST ACCUSSED PERSON

2.REVOCATUS S/O EVARIST MUYELLA S@REVOO@ RAY……….2ND ACCUSED

PERSON

WRITTEN SUMMARY OF PROSECUTION WITTNESSES.

PW1; WP 4707 Sgt. Mwajuma

THAT, on 07th August 2016 , from 9:30 am to 1:30 am to 1:25 pm she recorded

caution statement of the 1st accused person at Temeke Special Police Regional Office. She

recorded how the accused brought before her and the accused having understood her rights and

out of free will and good health-wise and signed the statement to signify consent.
PW2; Leonia Kagemulo Mutta

THAT, a retired Primary Court Magistrate, who served at Ilala Primary Court between

2011 to 2020, in this case while he was at ilala primary court as a justice of peace recorded extra

judicial statement of the 1st accused on accusation of murder offence. She testified that during

that exercise the accused confessed to have committed the offence as she stated that the accused

was physically fit and without any physical body injuries. PW2 also routed that he recorded that

1st accused co-operated with Ray due to exhibit of DE1 which made by PW22.

PPW3; Mwanaasha Kassim

THAT, a resident of Kibada Kigamboni and neighbor to the late Aneth Msuya, he

testified to the effect, on 26/05/2016 at 8:00 am while at home come one Allen who is Aneths

son imformed her of the missing of his mother and she went with him back to their house and

find the late Aneths body laid down on her back with her face covered with a cloth in pool of

blood.

PW4; SSP Richard Mwaisemba

THAT, he was OC-CID for kigamboni and was responsible for investigation all crime

within, on 26/05/2016 about 07:30 pm received call of murder at block 17 from kibada police

Mwanzalima. At the scene of crime he recounted they found a crowd people and be led by area

chairman and the deceased body laid down aside the bed, he noted marks of violent entry and he

called forensic experts for further investigation. According to exhibit DE3 discovery of deceased

death was made at06:00 am.

PW5; Latifa Mohamed

 THAT, she was a police woman of the rank of inspector she travelled from Dar es salaam

to Arusha in company of her seniors Afande David David Mhanaya for the purposes of

conducting investigation of murder occurred at kigamboni. On 05/o8/2016 evening managed to

arrest 1st accused after complying with all arrest procedures and took her to the RCOs office.it

was her further testimony that the accused agreed and the video recording took place to at RCOs

office and no effect affecting the arrest.

PW6; Insp. Alistides Eustalius Kasigwa

THAT, as police officer working with the forensic Bureau on 08/08/2016 was assigned a

duty of record an interview of a suspect whom he identified to the court as the first accused. On

the interview between him and first accused managed to hear the accused what had transpired at

Kigamboni to Dar es sallam and told the whole story on how murder was executed and he

prepared the video tape .

PW7; Ahlam Kilsweni Malingo

THAT, a resident of kibada block no.17 testified to the effect that, on 25th may 2016 she

received key from his neighbor PW19 who said she got from her sister and the keys handed to

his sister Jasmin and later on the late Aneth collected them from her. On re-examination clarified

that he saw Aneth coming with her car so she knew she had come to collect the keys.

PW8; Rtd. Insp. Fedrick Nyadike

THAT, was working at kigamboni police station as deputy OC-CID, testified that on 26th

may 2016 while in company with PW4 and other police officers they went to the scene of crime

and witnessed a body of a necked woman laid down in a pool of blood while her neck cut with a
sharp object and beside her body there was a knife. He drew the map reflecting what was found

at the scene of crime.

PW9; Lutengano William Mwanginde

THAT, a chemist within the police force forensic Bureau, he averred that on 28th August 2016

was required to take sample of buccal swab from a sample source one Revocatus who brought

before him by Cpl. Hassan after the said revocatus had signed the consent form upon his rights

he collected the said buccal swab and stored it. On storage sample he admitted that it is true the

sample must be kept strictly.

PW10; ACP Richard Thadei Mchomvu

THAT, on 26th may 2016 as the RCO after being notified of homicide which had

happened at kibada, he went there with forensic expert, in that house deceased was living, he saw

the wooden door broken and upon entering he found a room where the naked body of female

person was laid on her back in a pool of blood while her neck slaughtered with sharp object.

PW11; ACP George Aloyce Katabazi

THAT, on the morning of 05/8/2016 while in office at Arusha received a phone call from

the DCI, Diwani Athuman instructing him to seize two motor vehicles that were connected

muder case originated from kigamboni. According to him two vehicles belonged to suspect

Miriam Steven were one.

QUESTION.3 write submission for the prosecution (republic case) 8-10 pages.

IN THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

(DAR ES SALAAM SUB-REGISTRY)

AT DAR ES SALAAM
 CRIMINAL SESSION CASE NO.103 OF 2018

RUPUBLIC………PROSECUTOR

VS

1. MIRIAM D/O STEVEN MRITA……….1ST ACCUSSED PERSON

2.REVOCATUS S/O EVARIST MUYELLA S@REVOO@ RAY……….2ND ACCUSED

PERSON

WRITTEN SUBMISION FOR THE PROSECUTION SIDE

YOUR LORDSHIP; before this honorable court, I counsel from the prosecution side standing

on behalf of the Republic.

YOUR LORDSHIP; the fact of the case herein is that: on 26th day of may 2016 the officer

commanding criminal investigation department for kigamboni district RICHARD

MWAISEMBO who was on duty at kigamboni police station he received from OCS for kibada

police posts one S/Sgt. MWANZALIMA, a report concerning cold blood murder that had

occurred at kibada block17. And this was murder incident of one ANETH ELISARIA MSUYA.

The said information was relayed to the OCD for kigamboni and RC for temeke desiginated

police region ACP RICHARD THADEI MCHOMVU, who was together with a term of forensic

experts led by. E.5334F.S/SGT JOHN BENARD MWAMBUSYE called at the scene of crime.

The investigation was immediately mounted by collecting different samples and exhibits for

evidential purpose as well as interviewing and recording statements of different persons who

volunteered information and among of the sample collected both found on at the scene of crime
in the room where the deceased body was found lying in a pool of blood. Among the persons

who recorded their statements after the incident was GETRUDE PENIEL MFURU, the deceased

house girl who clued the investigators of the suspects of murder the result of which two suspects

were arrested on different dates at Arusha town, interviewed and transferred to Dar es salaam for

further investigation who was MIRIAM STEVEN MRITA and REVOCATUS EVARIST

MUYELA@ REVOO @ RAY.

YOUR LORDSHIP; for the prosecution side we would like to rely on the herein framed

ISSUES;

Whether ANETH ELISARIA MSUYA (deceased) was killed or died of

natural death

whether the accused persons are responsible for killing of ANETH

ELISARIA MSUYA

Whether both accused persons were conspired to kill deceased

YOUR LORDSHIP; the herein are the applicable laws and cases as legal requirements in

this case at hand;

LAWS

Constitution

 The constitution of united republic of Tanzania of 1977 as amended in 2005

Statutes

a) The penal Code Chapter 16(Revised Edition 2019)

b) The Criminal Procedure Act Chapter 20 (Revised Edition 2022)

c) The Evidence Act Chapter 6 (Revised Edition 2022)

CASES

 Rombo Tomola Vs Republic (1980) TLR 254

 Mark Kasimiri vs Republic Criminal Appeal No. 39 of 2017.

 Abdallah Athuman Labia @ Brother Mohamed and 8 Others Criminal

Session Case No.63 of 2022 (HC-Unreported).

 Goodluck Kyando Vs Republic ]2006] TLR 363.

 Mathias Bundala Vs Republic 12 criminal Appeal No.62 of 2004 ( CAT-

unreported).

 Rex Vs Mwango Manaa (1936) 3 EACA 29 9OR GPO 2310.

 Jaspini s/o Daniel @Sizakwa Vs DPP Criminal Appeal No. 519 of 2019

(CAT-Unreported)

 Nyerere Nyague Vs Republic Criminal Appeal No. 67 of 2010

 Sebastian Michael & Another Vs. The Director of Public Prosecutions

Criminal Appeal No. 145 of 2018 ( both CAT-unreported)

 Hatari Masharubu @Babu Ayubu Vs Republic criminal Appeal No.590

of 2017]2021] TZCA 41

 Abdallah Teje @ Malima Mabula Vs The Republic Criminal Appeal

No.195 of 2005(CAT-unreported)

 Mabula Vs The Republic Criminal Appeal No.195 0f 2005(CAT-

Unreported)

 Moses Deo Vs Republic ]1987] TLR 134 (CAT-Unreported)

 Dennis Nyakonda Vs Republic Criminal Appeal No.155 of 1990 (CAT-

Unreported)
 Ahmad Hassan Marwa Vs Republic criminal Appeal No 264 0f 2000

(CAT-unreported)

 Republic Vs Chacha Jeremiah Murimi and Others criminal Sessions

No.213 of 2014 (HC-Unreported)

 Marceline koivogui vs republic criminal appeal no.469 of 2017 (CAT-

Unreported)

 Chacha jeremiah murimi & 3OTHERS VS the REPUBLIC criminal

appeal no.551 of 2015 (unreported)

 Paul maduka and 4 others vs republic criminal appeal no.110 of 2007

 Joseph leonard manyota vs republic criminal appeal no.485 of 2015

 Magendo paul and another vs republic (1993) TLR 219

 MILLER VS. MINISTER OF PANSIONS ( SUPRA)

 Tuwamoi vs Uganda (1967) E.A 84

 Ahmad salum hassan @ chinga vs republic criminal appeal no.386 of

2021

 Shilanga bunzali vs republic criminal appeal no.600 of 2020

 Tuwamoi vs uganda (1967) e.a 84

 Dickson elia nshambwa shapwata and another vs republic criminal

appeal no.92 of 2007( cat-unreported)

 Mohamed said matula vs republic , 1995 tlr3

 Dickson elias nsamba shapwata and other vs republic., criminal appeal

no 92 of 2007

 Armand guehi vs republic criminal appeal no 242 0f 2010

 jack vuyo vs dpp criminal appeal no 334 of 2016

 Mohamed mstafa rajabu and 2 other vs republic criminal appeal no.25 of

2017 (cat-unreported)

 Dickson elia n samba shapwata @ another vs republic criminal appeal

no 92 of 2007

 Allex ndendya vs republic criminal appeal no 207 of 2018(cat-

unreported)

 evarist kechembeho and others vs republic (1978) lrt 70

 Janeth tadei msigwa vs republic, criminal appeal no.367 of

2008( unreported)

 Shilanga bunzali vs republic criminal appeal no.600 of 2020 (cat-

unreported)

 Lucia anthony @ bishengwe vs republic criminal appeal no 96 0f

2016(unreported)

 Samson daniel vs republic 1934 eaca 154

 Ally bakari vs republic 1992 tlr 10

 Aneth kapazya vs republic criminal appeal no 69 of 2012

 Simon msoke vs republic 1958 ea 715

 Bahati makenja vs republic criminal appeal no 118 of 2006

 Jumanne juma bosco and another vs republic criminal appeal no 206 of

2012 unreported

 Dimiano petro and jackson abraham vs republic 1980 206

 Mt 60330 pte nassoro mohamed ally vs republic criminal appeal no 73

  Lidumula luhusa @ kasuka vs republic criminal appeal no 352 of 2020

unreported

YOUR LORDSHIP; herein bellow herein the determination of issues raised before this

honorable court

Your lordship, Basing on the first issue of Whether ANETH ELISARIA

MSUYA (deceased) was killed or died of natural death, according to the evidence of PW25

ANETH ELISARIA MSUYA was killed and not died of natural death. PW25 evidenced that, on

25/05/2016 when was leaving home to her friend Sabri, the late ANETH she was at work and she

left the keys to AZIZA to deliver them to PW7 who testified that the late ANETH collected the

keys from her sister. it provides that “any person who, with malice aforethought, causes the death

of another person by an unlawful act or omission is guilty of murder” As it was held under the

case of case of BOMBO TOMOLA VS. R, (1980) TLR 254, among others that, the proof of

death in homicide cases is through medical evidence and/or circumstantial evidence.

Your lordship; with such evidence the courts satisfaction that up to the

evening time of the same date after PW25 had left the place, the deceased was still alive and she

so remained until when her body was discovered on the next day of 26/05/2016 morning as per

testimonies of PW3, PW4, PW8, PW10 and PW17.

Your lordship; these witnesses witnessed the deceased body laying down on her

back in a pool of blood, with a big cut wound on the neck before and her body was taken to

Muhimbili national hospital for post mortem examination conducted by PW21 who was a

Doctor.
 Your lordship; report of PW21 established the cause of death was Homorrhagic

shock leading to blood loss due to this deceased was killed and her death was not natural death.

Your lordship, in determining the second issue of whether the accused persons

are responsible for killing of ANETH ELISARIA MSUYA ,on basing of evidences both

circumstantial evidence, electronic evidence together with evidence from doctor both accused

person are the one who killed Aneth,on the relation of section 196 0f penal code [cap16

R.E2022] it provides that “any person who, with malice aforethought, causes the death of

another person by an unlawful act or omission is guilty of murder” The Court of appeal in the

case of Shilanga Bunzali Vs. R, Criminal Appeal No. 600 of 2020 (CAT-unreported) had an

opportunity of deliberating on the principles guiding the Court before a conviction is grounded

relying on circumstantial evidence. In so doing the Court observed thus:…the settled position of

the law that, one , the circumstantial e vid e n c e u n d e r c o n sid e r a tio n m u s t b e t h a t o f

s u r r o u n din g circumstances which, by undesigned coincidence is capable of proving a

proposition with the accuracy of mathematics. See: Lucia Anthony @ Bishengwe Vs The

Republic , Criminal Appe al No. 96 of 2016 (unreported); two , that each link in the chain must

be carefully tested and, if in the end, it does not lead to irresistible conclusion of the accused’s

guilt, the whole chain must be rejected. See; Samson Daniel Vs Republic, (1934) EAC.A . 154];

three, that the evidence must irresistibly point to the guilt of the accused to the exclusion of any

other person. See : S h a b a n M p u n z u @ E li s h a M p u n z u V s Republic , Criminal

Appeal No 12 of 2002(unreported); four , that the facts from which an inference adverse to

accused is sought must be proved beyond reasonable doubt and must be connected with the facts

which inference is to be inferred. Also under the case of Ally Bakari V s Republic ( 1 9 9 2 ) T L

R 1 0 a n d Aneth Kapazya Vs Republic , Criminal Appeal No. 69 of 2012 (both unreported);

and five , the circumstances must be such as to provide moral certainty to the exclusion of every

reasonable doubt - see Simon Msoke Vs Republic (1958) EA 715.’’ In this matter as seen above

the prosecution case is premised on circumstantial evidence derived mainly from evidence of

PW25, the evidence which both accused persons tried hard to disprove during their defence by

raising defence of alibi. When the notice of alibi is issued under section 194(4) of the CPA, the

clear position of the law is that, Court must consider it and see whether it should be accorded

with any weight or not. Notably, under the circumstances the accused person has no duty of

proving his alibi as it is enough for him to raise the defence and create doubts on the prosecution

case in which the prosecution bears the onus of discrediting it. See the case of Bahati Makenja

Vs. R, Criminal Appeal No. 118 of 2006 and Jumanne Juma Bosco and Another Vs.R, Criminal

Appeal No. 206 of 2012 (both CAT-unreported).

Your lordship; for the person to be charged with the offence of murder the

following ingredients to be established that is Malice aforethought, according to section 200 (a)

of the penal code cap 16 R.E 2022 it provides that ‘is an intention to cause the death of or to do

grievous harm to any person, whether that person is the person actually killed or not’ ’and all this

element was established through witnesses

Your lordship; it is clear that the accused persons had intention to kill the deceased

basing on the fact that, the accused persons they heared by PW25 on the car that ”mali nitafute

mimi na mume wangu wengine wanazihangaikia za nini sasa” also the circumstantial evidence

supported by PW25, forensic expert and confension of the first accused was enough to prove

they killed ANETH ELISARIA MSUYA.

 Your lordship; this was evidenced in the case of MARK KASIMIRI VS. REPUBLIC

CRIMINAL APPEAL NO. 39 OF 2017 (CAT-UNREPORTED), it was held that “all the

circumstances from which an inference of guilty of accused persons is sought to be drawn are

cogently and firmly pointing towards the accused persons guilty even though no one saw them

committing murder act to the deceased’

YOUR LORDSHIP; in determining the third issue of Whether both accused persons

conspired to kill deceased. According to the evidence provided that I arrive to that conclusion

as it is settled law now as rightly submitted by the prosecution that, oral account in absence of

paper trial can establish chain of custody of exhibits. What is important is for the court to follow

carefully the handling exercise of what is seized from the suspect or collected from the scene of

crime and how was it handled up to the time of laboratory analysis, until when finally the seized

exhibit is received in court as evidence the position which was articulated in the case of

Marceline Koivogui Vs. R, Criminal Appeal No. 469 of 2017 (CAT-unreported) where the Court

observed thus: ’’In the present case we cannot fault the trial court in having relied on the credible

oral account of the prosecution witnesses w hic h w a s n o t impeached considering t h a t : one,

documentation is not the only requirement in dealing with exhibit and it will not fail the test

merely because there was no documentation.’’ (Emphasis supplied) See also the cases of Chacha

Jeremiah Murimi and 3 others vs. The R, Criminal Appeal No.551 of 2015 (unreported). It is

worth noting however that, chain of custody is established through oral evidence only where the

exhibit is not likely to change hands easily like what money would do. See the case of Paul

Maduka and 4 Others Vs. R, Criminal Appeal No. 110 of 2007 and Joseph Leonard Manyota Vs.

R, Criminal Appeal No. 485 of 2015 (Both CAT-unreported). In this case, having considered

oral evidence of PW23, PW16, PW17, PW9, PW10 and PW15 and the fact that the
exhibits/samples involved could not change hands or mixed up easily this court is satisfied that,

chain of custody of the said samples remained unbroken until when the same were tendered in

court.

YOUR LORDSHIP; basing on our arguments as we prosecutors provides for the herein

PRAYERS,

 I kindly pray before court for accused persons namely Miriam d/o Steven

Mrita & Revocatus s/o Evarist Muyella @ Revoo@ Ray to be convicted

for Murder

Your lordship; I humbly to submit.

Dated at IRINGA this……... day of ………...2024

……………………….

ADVOCATE FOR PROSECUTION SIDE

Presented for filling this………. Day of ……….2024

………………………..

REGISTRY OFFICER

DRAWN & FILLED BY;

HAPPY MWANDIKI (ADVOCATE)

Happy@gmail.com78559
Phone no 09282748827378

SKY ADVOCATES

P.O.BOX 223 IRINGA

COPY TO BE SERVED UPON;

ADVOCATE FOR DEFENCE SIDE

P.O.BOX 345 IRINGA

 IN THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

(DAR ES SALAAM SUB-REGISTRY)

AT DAR ES SALAAM

CRIMINAL SESSION CASE NO.103 OF 2018

RUPUBLIC………PROSECUTOR

VS

1. MIRIAM D/O STEVEN MRITA……….1ST ACCUSSED PERSON

2.REVOCATUS S/O EVARIST MUYELLA S@REVOO@ RAY……….2ND ACCUSED

PERSON

WRITTEN SUBMISION FOR DEFENCE SIDE.

YOUR LORDSHIP; before this honorable court, I counsel from the prosecution side standing

on behalf of MIRIAM D/O STEVEN MRITA……….1ST ACCUSSED PERSON

REVOCATUS S/O EVARIST MUYELLA S@REVOO@ RA

YOUR LORDSHIP; the fact of the case herein is that: on 26th day of May 2016 the officer

commanding criminal investigation department for kigamboni district RICHARD

MWAISEMBO who was on duty at kigamboni police station he received from OCS for kibada

police posts one S/Sgt. MWANZALIMA, a report concerning cold blood murder that had

occurred at kibada block17. And this was murder incident of one ANETH ELISARIA MSUYA.

The said information was relayed to the OCD for kigamboni and RC for temeke desiginated

police region ACP RICHARD THADEI MCHOMVU, who was together with a term of forensic

experts led by. E.5334F.S/SGT JOHN BENARD MWAMBUSYE called at the scene of crime.

The investigation was immediately mounted by collecting different samples and exhibits for

evidential purpose as well as interviewing and recording statements of different persons who

volunteered information and among of the sample collected both found on at the scene of crime

in the room where the deceased body was found lying in a pool of blood. Among the persons

who recorded their statements after the incident was GETRUDE PENIEL MFURU, the deceased

house girl who clued the investigators of the suspects of murder the result of which two suspects

were arrested on different dates at Arusha town, interviewed and transferred to Dar es salaam for

further investigation who was MIRIAM STEVEN MRITA and REVOCATUS EVARIST

MUYELA@ REVOO @ RAY.

YOUR LORDSHIP; for the Defence side we would like to rely on the herein framed

ISSUES;

Whether ANETH ELISARIA MSUYA (deceased) was killed or died of

natural death
 whether the accused persons are responsible for killing of ANETH

ELISARIA MSUYA

Whether both accused persons were conspired to kill deceased

YOUR LORDSHIP; the herein are the applicable laws and cases that will be used as

backup in this case.

LAWS APPLICABLE

Constitution

 The constitution of united republic of Tanzania of 1977 as amended in 2005

Statutes

d) The penal Code Chapter 16(Revised Edition 2019)

e) The Criminal Procedure Act Chapter 20 (Revised Edition 2022)

f) The Evidence Act Chapter 6 (Revised Edition 2022)

YOUR LORDSHIP; herein bellow will be the determination of issues raised before this

honorable court
Your lordship, Basing on the first issue of Whether ANETH ELISARIA MSUYA
(deceased) was killed or died of natural death prosecution side failed to prove that death was
caused by accused person as was stated under the case of THE CASE OF JOSEPH JOHN
MAKUNE VS REPUBLIC 1986 TZCA NO2, Whereby in this case the prosecution failed to
prove the case beyond reasonable doubt having regard to the appellants defence and hence the
appellant appealed against both conviction and sentence. The learned Judge stated that the
cardinal prosecution of our criminal law is that the burden is on prosecution to prove the case
beyond reasonable doubt and no duty is the cast on the accused to prove his innocence.

Also REPUBLIC V KERSTIN CAMERON (2003) TLR 84that the accused person all be
convicted of an offense on the basis of the strength of the prosecution case and not the basis of
the weakness of the defense case read together with the case of Paschal Yoya @maganga v
Republic Criminal Appeal no 248 of 2017 that it is a cardinal principle of the criminal law our
Jurisdiction that in case such in one hand, its prosecution that has burden of proof its case beyond
reasonable doubt. The burden never shifts to the accused person as an accused only needs to
raise some reasonable doubts on the prosecution case and we need to prove his innocence thus
the matter in hand the prosecution did not meet the demand of the law in posing the case beyond
reasonable doubt., the same matter before this honorable court prosecution side failed to prove
without a reasonable doubt.

Your lordship, in determining the second issue of whether the accused persons are

responsible for killing of ANETH ELISARIA MSUYA it is a principle of law that, in proving

any criminal offence, murder inclusive the prosecution bears the burden of establishing that, it is

the accused person(s) who committed the offence charged with as the burden never shifts unless

otherwise provided by the law. See the cases of Mohamed Said Matula Vs. R [1995] T.L.R. 3

(CA) and Aburaham Daniel Vs. R, Criminal Appeal No. 6 of 2007, (CAT-unreported). It is so as

the law is settled under sections 110(1) and (2) and 112 of Evidence Act, [Cap. 6 R.E 2022] that,

the burden of proving existence of fact lies on the person who wishes the court to believe its

existence. And the standard of proof is that of beyond reasonable doubt as exhibited under
section 3(2) of the Evidence Act, [Cap. 06 R.E 2022]. The standard and burden of proof beyond

reasonable doubts were also given consideration by the Court of Appeal in the case of Nathaniel

Alphonce Mapunda and Benjamin Mapunda Vs. R [2006] TLR 395, when the Court observed

thus:

I}As is well known, in a criminal trial the burden of proof always lies on the prosecution. Indeed,

in the case of Mohamed Said Vs R this Court reiterated the principle by stating that in a murder

charge the burden of proof i s always on the prosecution, and the proof has to be beyond

reasonable doubt.

(ii)Where circumstantial evidence is relied on, the principle has always been that facts which an

inference of guilt is drawn must be proved beyond reasonable doubt.

(iii) In criminal charge, suspicion alone, however grave it may be is not enough to sustain a

conviction, all the more so, in a serious charge of murder. ” In an earlier case of Miller Vs.

Minister of Pensions (1947) ALLER 372 - 373, Lord Denning expounded on the degree of proof

in criminal cases and stated in the following words: "That degree is well settled. It need not

reach certainty, but it must carry a high degree of probability. Proof of beyond reasonable doubt

does not mean beyond the shadow of doubt.... ?” With the above principles of the law in mind it

is therefore expected of the prosecution in this case to lead evidence carrying weight in proving

that it is the accused persons who committed the offence they are faced with and not otherwise as

suspicion alone cannot carry the day. It is also a principle of law that, the accused persons shall

not be convicted on the basis of weakness of their evidence/defence but rather on the strength of

prosecution evidence or case. See the case of Mohamed Haruna @ Mtupeni and Another Vs. R,

Criminal Appeal No. 259 of 2007 (CAT-unreported) at page 7 and Mohamed Said Vs. R,

Criminal Appeal No. 145 of 2017 CAT-Tanzlii when quoted with approval the decision of
Supreme Court of Philippines in the case of People of the Philippines Vs. Benjamin A. Elmancil,

G. R. No.234951, dated March, 2019. In law any criminal offence murder inclusive is constituted

of two elements which must be proved before the accused person is found guilty and convicted,

one, actus reus and secondly, mens rea .Actus rues is the action or conduct of the accused person

which constitutes element of a crime and mens rea is the mental state or intention of the accused

person in commission of an offence. In short it is the guilty mind of the accused in commission

of a crime. In this case the accused persons are charged of Murder under section 196 and 197 of

the Penal Code, [Cap. 16 R.E 2002] now R.E 2022. Section 196 of the Act reads: 196. Any

person who, with malice aforethought, causes the death of another person by an unlawful act or

omission is guilty of murder. For the prosecution to establish their guiltiness it is duty bound to

prove three elements of the offence namely:

(1) The deceased was killed or died of natural death.

(2) The accused person(s) is/are responsible for the alleged killings (if unnatural death is

established).

(3) The accused person(s) had malice aforethought at the time of killing, if it is proved that is/are

responsible for killing the deceased.

YOUR LORDSHIP; in determining the third issue of Whether both accused persons

conspired to kill deceased. According to the evidences provided two accused person did not do

such offence It was held in the case of Magendo Paul and Another Vs. R (1993) TLR 219 that,

a case can be taken to be proved beyond reasonable doubt against the accused where there is

strong evidence against him leaving a remote possibility in his favor which can easily be

dismissed. In so doing the Court had this to say:

’’For a case to be taken to have been proved beyond reason abled doubt its evidence must be

strong again the accused person as to leave a remote possibility in his favor which can easily be

dismissed.’’ as per the requirement of law spelt out in Abdallah Athuman Labia @ Brothers

(supra) when quoting the case of Tuwamoi Vs. Uganda [1967] E.A 84, insisting on the

importance of confession statement to be corroborated by independent evidence, fourthly, it

contradicts the testimony of PW25 on the date of 20/05/2016 allegedly 1st accused visited

Kibada area while PW25 did not mention such date in her evidence. In the fifth attack the

learned counsel complained that, the statement does not explain who were the other youths

alleged to be in company of accused persons when allegedly threatened PW25 with a pistol and

does not make any reference to the said pistol. And further that, it contradicts PW22’s evidence

against that of 1st accused (DW1) and Kelvin Erasto Msuya (DW3) on the fact that not even a

single motor vehicle belonging to the late Erasto Elisaria Msuya changed its ownership from him

to the 1st accused and that, there was no litigation between the deceased and 1st accused over the

estate of the late Erasto E. Msuya as division of the estate was legally conducted by DW3. And

further that, the prosecution failed to bring evidence to corroborate PW22 mere assertion that,

there was dispute over ownership of properties in the estate of the late Erasto Elisaria Msuya.

Reliance was placed on the cases of Ahmad Salum Hassan @ Chinga Vs. R, Criminal Appeal

No. 386 of 2021 and Shilanga Bunzali Vs. R, Criminal Appeal No. 600 of 2020 (reported in

Tanzlii, on the need to call witnesses whom from their connection or involvement in the

transaction in question, are able to testify on material facts.

YOUR LORDSHIP; WHEREFORE; before this Honorable court the defense side prays for
the sentence and conviction to be quashed and for him to be set free and any other relief that the
court deems fit.

Dated at IRINGA this……... day of ………...2024

 ……………………….

ADVOCATE FOR DEFENCE SIDE

Presented for filling this………. Day of ……….2024

………………………..

REGISTRY OFFICER

DRAWN & FILLED BY;

ADVOCATE FOR DEFENCE SIDE

P.O.BOX 345 IRINGA

COPY TO BE SERVED UPON;

HAPPY MWANDIKI (ADVOCATE)

Happy@gmail.com78559

Phone no 09282748827378

SKY ADVOCATES

P.O.BOX 223 IRINGA