The judges said such delays violated section 33(2) of the Criminal Procedure Act (CPA), which requires suspects to be presented in court as soon as possible.
Arusha. The Court of Appeal has quashed the death sentences imposed on four people convicted of murder and ordered their immediate release after finding major legal irregularities in their case.
On August 15, 2018, they were accused of killing the wife of a gold dealer, Mwasi Kakolo, and stealing Sh30 million and 260 grams of gold.
Those released are Jacob Shindika, Boaz Saidi, Rashidi Mwaulezi and Japhet Sanga, who on December 30, 2022, were sentenced to death by the High Court, Mbeya Sub-Registry, after being found guilty.
The judgment annulling the sentences and ordering the appellants’ release was delivered on Wednesday, March 11, 2026, by a panel of three judges: Rehema Mkuye, Sam Rumanyika, and Prof Ubena Agatho.
Judge Agatho said the court found serious problems in the legal representation of the appellants during the High Court proceedings: the first and second appellants were represented by one lawyer, while the third and fourth were represented by another.
The judges explained that this created a conflict of interest, as the appellants had accused each other in their caution statements.
Due to this representation, the appellants were unable to properly cross-examine in court, a fundamental right in criminal cases, which compromised the proceedings and affected the outcome.
Judge Agatho said the court also noted unjustified delays in bringing the appellants to court after arrest, with some held in custody for two to four months before their first appearance.
The judges said such delays violated section 33(2) of the Criminal Procedure Act (CPA), which requires suspects to be presented in court as soon as possible.
Judge Agatho said the prosecution failed to provide satisfactory explanations for the delays, thus violating the appellants’ rights.
He cited another flaw: the failure to call a key witness, Mr Mgema Limbu, a relative of the assaulted dealer who had witnessed the event, without valid reasons.
The judges said omitting this witness meant his testimony, which could have influenced the prosecution’s case, was lost.
Regarding the identification of the attackers by the witness, although he claimed to recognise some assailants due to the light in his home, the evidence was inconclusive.
They noted that the witness lost consciousness during the incident, and his mental state was not fully explained in court, making the identification unreliable without corroboration.
On the prosecution’s request for a retrial, Judge Agatho said the flaws were so significant that allowing a retrial could give the prosecution a chance to correct errors.
The court said doing so would be unjust to the appellants. For these reasons, the Court of Appeal allowed the appeal, quashed the convictions and sentences, and ordered all appellants released.
Basis of appeal
The appellants were initially charged with murder contrary to section 196 of the Penal Code following an attack in Itumbi village, Chunya District, Mbeya Region, in 2018.
Evidence indicated the incident occurred on August 15, 2018, at the home of gold dealer Luheta Nhandi, the first prosecution witness.
He said that day, a group carrying soil allegedly containing gold came to his home and asked him to process it using his machine.
He claimed that after agreeing, they worked for about two hours, then asked to leave the soil and return the next day, saying they had no money for food.
He testified that later, when he tried to check progress, the fourth appellant struck him on the head with a heavy object and attacked various parts of his body, including his right hand near the fingers.
He said the first appellant and others then attacked his wife, stabbing her and demanding money.
According to him, they took Sh30 million from her cupboard and 260 grams of gold from her office drawer.
He said that as they left, they agreed to blindfold the family, having recognised them; the first appellant gouged his wife’s eyes and broke a tyre, doing the same to his younger child before leaving.
He said 33 days later, on September 17, 2018, his wife died, and medical evidence confirmed her death from severe head injuries.
After the incident was reported at Chunya police station, investigations led to the appellants’ arrests in different areas between August and October 2018.
In their defence, all appellants denied involvement and claimed the evidence had been fabricated by the police.
On appeal, the appellants raised seven points, including that the judge wrongly relied on weak identification by the first witness; that the defence case was insufficiently considered, causing a miscarriage of justice; and that the prosecution failed to prove the case beyond reasonable doubt.
