Arusha. The Court of Appeal sitting in Mbeya has acquitted three men who had been sentenced to death by hanging after being convicted of murder.
Those released are Masikitiko Lusambo, Huruma Mwasile and Aman Mswima who, on June 22, 2023, were sentenced by the High Court, Mbeya Zone, to that penalty after being found guilty of murdering Shukuru Sandala.
The appellants and another person (who was acquitted after being found not guilty) were charged with murder contrary to Sections 196 and 197 of the Penal Code.
The offence was alleged to have occurred on February 9, 2020 in the Mtakuja area, Mbalizi, Mbeya Region, and in Criminal Appeal No. 761/2023 the appellants challenged their conviction.
The decision acquitting them was delivered on February 13, 2026 by a panel of three judges of the country’s highest court, namely Rehema Kerefu, Lucia Kairo and Deo Nangela.
After reviewing the proceedings and grounds of appeal, the Court found that the High Court had erred in law by relying on circumstantial evidence that did not meet the threshold of proving guilt beyond reasonable doubt.
The judges explained that there were major inconsistencies between the charge sheet and the caution statement of the first accused, particularly regarding the date of the incident and the name of the deceased.
They stated that under the law such inconsistencies ought to have been rectified through amendment of the charge, which was not done.
Additionally, the Court found that the prosecution failed to call crucial witnesses, including the doctor who conducted the post-mortem examination, nor did it tender the post-mortem report to establish the cause of death.
They said exhibits allegedly recovered at the scene, including a knife and a blood-stained jacket, as well as the Government Chemist’s report, were also not produced in court.
The judges stressed that in cases relying on circumstantial evidence, such evidence must form a complete chain leaving no room for doubt, and in this case they found that the chain had not been properly established.
Due to those shortcomings, the Court was satisfied that the prosecution’s case had not been proved to the required legal standard, thus allowing the appeal, quashing the death sentence and ordering that the appellants be released immediately unless held for other lawful reasons.
“Some of the key witnesses, documents and items listed during committal proceedings and the preliminary hearing, including the knife and jacket which the sixth witness claimed were recovered at the scene, were not produced in court and no explanation was given by the prosecution for that failure,” reads part of the judgment.
“It is also on record that the caution statements of the other accused, although listed during committal proceedings and the preliminary hearing, were not tendered in the trial to shed more light on the matter,” another part reads.
“Furthermore, the doctor who examined the body of the deceased and prepared the post-mortem report was not called and the report itself was not produced to establish the cause of death. Again, no explanation was given by the prosecution if that witness could not be traced,” added the judge.
How the murder occurred
Earlier, prosecution evidence presented before the High Court alleged that the deceased, who worked at Urafiki Bar on the night of the incident, had been on duty when the first prosecution witness, Mr Furaha Moses, said he asked a bodaboda rider to take her home.
He said instead the deceased was directed to take her home using that motorcycle and, when they reached the communication tower, they met people who stopped them requesting transport.
He said the deceased recognised them by name as Haruna and Aman and promised to return to pick them up.
She was taken to her home and later that night received information that Shukuru had been killed near the communication tower area.
The second witness, Ms Mary Mwazyunga (wife of the first witness), told the Court that on the day of the incident her husband was dropped home by Shukuru and later they received news of his death.
The third witness, the deceased’s brother Mr Maiko Njebele, confirmed to the Court that on the material day Shukuru was at work and later he received information that he had not returned after taking the first witness home.
He subsequently discovered he had been killed and went to identify the body at hospital.
For his part, the fifth witness, Mr Ezekiel Mwaweza, confirmed the deceased’s last movements before the incident and that he allowed him to take the first witness home using his motorcycle.
The sixth witness, a police investigation officer, H 4910 DC Hassani, told the Court that he arrived at the scene at midnight with other officers and found the deceased’s body with a facial injury.
He said they also recovered a broken knife and a blood-stained jacket, then took the body to hospital and prepared a sketch plan of the scene.
Defence
The first appellant said he was arrested on February 10, 2020 at his home and taken to Mbalizi Police Station and the following day recorded a statement in which he was mentioned in connection with motorcycle theft.
He said later, on April 8, 2020, they were arraigned in court for murder and he denied the caution statement, claiming he was forced to sign on the date he was taken to court without knowing its contents.
The second appellant said he was arrested on February 10, 2020 at 2pm in a bar, while the third appellant said he was arrested on February 13, 2020 while leaving a bar without being told the offence.
All appellants denied knowing each other and said they met for the first time at the Government Chemist’s Office when fingerprints were taken.
Appeal
In the appeal that set them free, the appellants raised two grounds, namely that the judge erred in convicting and sentencing them on the basis of unreliable circumstantial evidence.
The other ground was that the judge erred in convicting and sentencing them when the prosecution case had not been proved beyond reasonable doubt.
