IN THE COURT OF APPEAL OF TANZANIA

AT MOSHI SUB-REGISTRY
CRIMINAL APPEAL NO……………OF 2019
BETWEEN
MANDIMU S/O MATIMBULA………………………………………. 1st APPELLANT
MCHARO MACHUI……………………………………………………2nd APPELLANT
VERSUS
REPUBIC……………………………………………..…………………RESPONDENT

(Appeal from Resident Magistrate of Tanzania at Moshi (Senior Resident Magistrate with
Extended Jurisdiction) Dated on 20th March, 2019, in The Resident Magistrate, Criminal Case no
34 of 2019).

MEMORANDUM OF APPEAL.

1. THE TRIAL COURT ERRED IN LAW: when offended the provision of Sections 246(2) and
289(1) of the Criminal Procedure Act, Cap. 20 R.E. 2019, by convicting the Appellants
based on evidence and statements whose substance, were neither registered nor read in the
Committal Proceedings; however, no

2. THE TRIAL COURT ERRED IN LAW AND FACTS: by convicting the Appellants based
on retracted caution statements allegedly made by the appellants, which were
uncorroborated, unprocedurally recorded, tendered and received as exhibits in court.
3. THE TRIAL COURT FURTHER ERRED IN LAW AND FACT: when offended provision
of Section 34B (2) of the Evidence Act, Cap.6 R.E. 2019 when admitted Exhibits P4 and P5
while failing to note that before such statements are admitted in evidence under this
provision, all the conditions from provision of section 34B (2)(a) to (f) must be met, she
further erred in convicting the Appellants basing on such statements (Exh P-4 and P-5) while
the same were uncorroborated.
4. THE TRIAL COURT FURTHER ERRED IN LAW AND FACTS; for failure to scrutinize
and evaluate properly the entire evidence, whereas the prosecution evidence were
 contradictory, incredible, insufficient, unreliable, implausible, and had material inconsistent
which rendered such evidence highly improbable; hence, the case was not proved beyond
reasonable doubts.

1st Appellant Signature……………

2nd Appellant Signature……………
Dated on ……………….30th of 10, 2019

To: The Honorable Justice of the Court of Appeal of Tanzania.

Lodged at Moshi Sub Registry
On 1st of November, 2019

Dated on 20th of May 2019 for presentation

……………………….
REGISTRAR

DRAFTED AND FILED BY:

CHAMBER NO. 5 ADVOCATES
COMMISSIONER FOR OATH AND PUBLIC NOTARY
P. O Box 12345
MOSHI

TO BE SERVED:
THE NATIONAL PROSECUTION SERVICES
P. O Box 758
MOSHI
 IN THE COURT OF APPEAL OF TANZANIA

AT MOSHI SUB-REGISTRY

CRIMINAL APPEAL NO……………OF 2019

BETWEEN

MANDIMU S/O MATIMBULA………………………………………. 1st APPELLANT

MCHARO MACHUI……………………………………………………2nd APPELLANT

VERSUS

REPUBIC……………………………………………..…………………RESPONDENT

APPEALANTS WRITTEN SUBMISSION IN SUPPORT OF THE APPEAL;

INTRODUCTION

The above Appellants before this court, Appeal against conviction and sentence made by
Resident Magistrate Court, which was sentence to death by hanging due to the offence of one
Count which was Murder contrary to section 196 of Penal Code (Cap 16 R.E 2022).

There are numerous errors in fact and law commenced during Trial court proceedings by both
Trial Resident Magistrate and Prosecution side. The following I wish to submit: -
1ST GROUND
My Lordship
Section 246 (2) o f the Criminal Prosecution Act, imposes an obligation on the court holding the
preliminary inquiry to make sure that it reads the information and the contents of the statements
of potential prosecution witnesses or the documents containing the substance of their evidence.
The exercise therefore involves listing of intended prosecution witnesses whose statements have
been read out and those of the defence, although Section 289(1) of the Criminal Procedure Act,
[Cap 20 R.E 2022] gives room to prosecutions side to file a Notice to do so for additional
witnesses and evidence during the trial, This provision further cements the necessity of
compliance with section 246 (2) of Criminal Procedure Act, thus The purpose of filing
information fetter and committal proceedings is intended to ensure that accused person becomes
conversant with the charge (s) against himself the intended witnesses, documentary, and physical
exhibits which the prosecution intends to rely on to prove their case against the accused in
relation to the charges against him. Committal proceedings serve the purpose that the accused
person is not taken by surprise to any facts in respect of the case against him... it enables the
accused person to prepare and present his defence and for the issues in dispute to be dearly
defined. (See the case of Mussa Ramadhani Magae Criminal Appeal No. 545 of 2021 [2023]
TZCA). Exhibits whose substance was neither presented nor listed during committal
proceedings as evidence to be tendered in court by the prosecution side can not be the proper
way generally the procedures were null and void to convict appellants by relaying on these peace
of evidence provided. And if these The exhibits are henceforth expunged from the record.
Having expunged Evidence the alleged caution statements the question that remains is whether
there is another evidence to sustain the case for the prosecution for the conviction of the
appellants. Hence prosecution failed to prove their case beyond reasonable doubts ( Mussa
Ramadhani Magae Supra)

PRAYERS, My Lord we hereby pray to nullify those proceedings, quash the appellant’s
conviction and set aside the sentence, Due to the errors that are contrary to principles that I
submitted herein above.

2ND GROUND.
My Lordship.
Basing on the Conviction solely based on a retracted caution statement exhibit PE-2 of Second
applicant (defendant in trial court) implicating involvement of first applicant in the event along
with others who were relieved by the Director of Public Prosecutions after he entered a nolle
prosequi. It is the requirement of the law under Section 33(2) of The Evidence Act, Cap.6 R.E
2022) and Section53 (c) and 57(2)(d) of the Criminal Procedure Act, Cap 20 RE 2022, Where
by accused cautioned statement was taken without any caution being given , it is important
accused by his conduct or words, made a statement, and that the statement or conduct amounting
to a confession was made freely and voluntarily. The standard of proof, it must be pointed out, is
that of proof beyond reasonable doubt in both instance and should be corroborated too. As held
In the case of James Msumule @ Jembe vs Republic (Criminal Appeal 439 of 2019) [2021]
TZCA 534 (28 September 2021) Where the Justice of court of Appeal contended that The only
evidence which was acted upon by the trial court to convict the appellant is exhibit P3, same to
this case at hand trial court only based on convicting appellant solely relying entirely on exhibit
PE-2. However, the prosecution did not bring in court any other evidence to corroborate what
was alleged that the accused person was mentioned by the co- accused in their confession. This is
contrary to the law because The law requires that retracted statements should be treated with
caution and should not form the sole basis of a conviction unless corroborated by other evidence.
Furthermore in the case of Aziz Abdallah v. Repulic [1991] T.L.R 71 insisted on the
corroboration before admitting the evidence of an accomplice.

PRAYERS: My Lord we humbly pray before this honorable court to set aside conviction of both
1st and 2nd Appellant because It is clear that this mistake is fatal and non-curable which amount to
illegality of Conviction of Both Appellant.

3RD GROUND.
My Lordship.
The law requires that any of accused statements, must be corroborated by other independent
evidence to form the basis of a conviction. This position was held in the case of James Msumule
@ Jembe v. Republic Criminal Appeal No.439 of 2019 where it was stated among other things
that “In general a retrial will be ordered when the original trial was illegal or defective, it w ill
not be ordered where the conviction is set aside because of insufficiency o f evidence or for
purpose of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a
conviction is vitiated by mistake of the trial court for which the prosecution is not to blame, it
does not necessarily follow that a retrial should he ordered; each case must depend on its own
facts and circumstances and an order for retrial should only be made where the interests of
justice require it..”
In this case before us, the Honorable trial court erred in law and procedures as per provision of
Section 34B (2) of the Evidence Act, Cap.6 R.E. 2022 when admitted Exhibits P4 and P5 while
failing to note that before such statements are admitted in evidence under this provision, all the
conditions from provision of section 34B (2)(a) to (f) must be met, she further erred in
convicting the Appellants basing on such statements (Exh P-4 and P-5) while the same were
uncorroborated. Section 34B(2) of The Evidence Act, CAP 6 R.E 2022, This section lays down
specific conditions (from (a) to (f)) that must be satisfied before a statement can be admitted as
evidence. These conditions include the relevance of the statement, its authenticity, and the
availability of the person who made the statement for cross-examination. Exhibits P4 and P5
were admitted without ensuring compliance with all the conditions specified in Section 34B(2).
This procedural failure undermined the reliability and admissibility of these exhibits. The trial
court convicted the Appellants based on these uncorroborated statements, which were admitted
without proper legal foundation.

PRAYERS, My Lordship, we hereby pray to nullify those proceedings, quash the appellant’s
conviction and set aside the sentence, Due to the errors that are contrary to principles that I
submitted herein above.

4th GROUND
My Lordship,
The standard of proof in criminal cases is high, and any reasonable doubt should result in an
acquittal. The trial court failed to properly scrutinize and evaluate the entire evidence. A
thorough evaluation would have revealed the weaknesses and implausibility in the prosecution’s
case, leading to the conclusion that the case was not proven beyond reasonable doubt. The law
imposes imperative duty upon prosecution side to prove their case beyond reasonable doubt and
not to depend on defense side weakness, as provided under section 3(2)(a) of the Law of
Evidence Act, R.E 2022. Referring in the case of Mohamed Said Matula v. Republic [1995]
TLR 3 the court held that "Upon a charge of murder being preferred the onus is always on the
prosecution to prove not only the death but also the link between the said death and the accused,
the onus never shift away from the prosecution and no duty is cast on the appellant to establish
his innocence." Hence these discrepancies of the Evidence provided by prosecution side shows
that they failed to prove their case beyond reasonable doubt. The prosecution evidence varies as
follows
1. Variance between postmortem Report (PE-1) and (PE-2). In exhibit PE-2 stated the cause
of death of deceased was strangle to death, while in postmortem Report tendered by
Prosecution reviled that the cause of death was blunt chest and abdominal viscera and not
strangle to death. Thus there is reasonable doubt to this evidence to which trial court
convicted 1st appellant and 2nd Appellant as well.
2. The conviction was also null and void by relying on evidence and the statements of
Mganga Maganga ( a witch doctor) and of ASP Kapuro (exhibits, PE 4 and 5 respectively
that was tendered and admitted in evidence based on the fact that Mganga who advised
the convicts to commit murder his whereabout was unknown and for the case of Kapuro,
he passed away on 10th October, 2019, though no proof of his death was tendered before
such admission.Trial court Admitting PE-4 and PE-5 which was Mganga Maganga
statements admission tendered by ASP Kapuro was unprocedurally and illegal because,
learned Senior Resident Magistrate failed to observe Credibility and reliability of that
statements and witness was not comply with Section 34B (2) (a) of The Evidence Act
(Cap 6 R.E 2022).
3. Another doubt is, Prosecution failed to tender important Exhibit to prove the existence of
text messages exchanged between 1st and 2n Appellant and other suspects on how they
were organizing the commission of alleged offence. Not only that, but also Prosecution
failed to tender evidence to prove transaction(s) of TZS 11,000,000.00/= they alleged
between 1st and 2nd Appellant and deceased.
4. The evidence Exhibit PE-4 and PE-5 was tendered by incompetent witness because he
was not mention during committal proceeding. This is contrary to section 289(1) of
 Criminal Procedure Act [ Cap 20 R.E 2022] and as held in the Case of Mussa
Ramadhani Magae (Supra)

CONCLUSION
I humbly submit that, the trial court’s conviction of the Appellants is fundamentally flawed due
to significant legal and factual errors due to fact that there are indefinitely number of doubts that
commenced during trial court proceedings as I submitted above, I pray this Honorable Court to
declare absolute acquittal by set aside Conviction and Sentence the 1st and 2nd Appellant.

1st Appellant Signature……………

2nd Appellant Signature……………

CHAMBER NO.5 FOR APPELLANTS

……………………………….
ADVOCATE SIGNATURE