Arusha. The Court of Appeal has quashed the death sentences of three members of the Sungusungu militia, who had been convicted of murdering an employee of Chemi and Cotex Industries Limited, Mr David Albert.
The decision followed a review of the case record and grounds of appeal, with the court ruling that the prosecution had failed to prove the charge beyond a reasonable doubt.
In Criminal Appeal No. 503 of 2024, Juma Said, Emmanuel John, and Aman Saniel were acquitted.
They had been sentenced to death on May 4, 2023, following their initial conviction.
The prosecution had alleged that on August 6, 2017, at Isamilo in Misungwi District, the appellants were on patrol as Sungusungu guards in the Bukumbi area.
The deceased was reportedly walking towards Usagara when intercepted by the guards.
The following morning, his body was discovered in a rice field, prompting police to arrest the appellants as prime suspects.
The appellate judgment was delivered on Monday, March 2, 2026, by a three-judge bench comprising Dr Mary Levira, Gerson Mdemu, and Issa Maige.
Justice Mdemu held that, after the Court expunged the appellants’ cautionary statements and rejected the application of the “last seen” doctrine, the prosecution’s case lacked sufficient evidence.
The Court consequently quashed the conviction and ordered their immediate release.
Background at the High Court
The prosecution told the High Court that, on the night in question, the appellants were performing their duties as members of the Sungusungu militia in Bukumbi.
It was alleged that they apprehended the deceased while he was heading to a shop owned by businessman Kaliyaya Joseph.
The fourth prosecution witness (PW4) testified that, under bright electric light, he saw the appellants with the deceased before they left with him. By morning, the body had been discovered.
During the trial, SSP Elisha Kusula (PW1) stated that the appellants had admitted the offence in cautionary and additional statements.
The High Court relied on these statements to conclude that the appellants were the last persons seen with the deceased and that their confessions, including an account of robbing him of Sh3 million to share among themselves, were voluntary and credible.
Grounds of appeal
On appeal, the appellants advanced three principal grounds: that the trial court misapplied the “last seen” doctrine; that it relied on uncorroborated confessions; and that the prosecution failed to prove its case beyond a reasonable doubt.
Defence counsel argued that the identification evidence was unreliable because PW4 did not provide adequate detail on the lighting conditions, including their intensity and position.
They also criticised the prosecution for failing to call key witnesses, including Kaliyaya Joseph, the hamlet chairperson, and a soldier involved in the search.
Regarding the confessions, counsel contended that some statements were recorded outside statutory time limits, others were unsigned, and some contained irregularities casting doubt on their authenticity.
Court’s determination
Justice Mdemu first addressed the medical evidence of PW9, who had not been listed at the committal stage.
The Court found this a procedural irregularity and struck out both the testimony and the post-mortem report.
Nonetheless, the court noted that death could still be established through the evidence of relatives and colleagues who identified the body and attended the burial.
Under the “last seen” principle, Justice Mdemu explained that it is a form of circumstantial evidence that requires an unbroken chain.
The Court identified major gaps, noting that PW4 used only nicknames or job descriptions rather than full identification details. The failure to call key witnesses further weakened the chain.
The Court also expunged the cautionary statements. The second appellant’s statement had been recorded outside the prescribed time without explanation, while the third appellant’s record contained inconsistent time entries.
The second appellant’s additional statement showed two distinct handwriting styles within a single document, a discrepancy the High Court failed to address.
With the confessions excluded and the “last seen” doctrine inapplicable, the Court concluded that no credible evidence remained to support a conviction.
It allowed the appeal, set aside the High Court judgment, and vacated the death sentences.
