Petro Safari @ Manyika & Another vs Republic (Criminal Appeal No. 277 of 2024) [2026] TZCA 493 (6 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: KOROSSO. J.A, MASHAKA, J.A, and NGWEMBE, J.A.) CRIMINAL APPEAL NO. 277 OF 2024 PETRO SAFARI @MANYIKA ................. ........................... 1 st APPELLANT FRANK PETRO @KALASONGO...............................................2 nd APPELLANT VERSUS REPUBLIC ...... .................... ........... . .............. ..................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Manyara) (Maaoiaa. J.1 dated the 16th day of February, 2024 in Criminal Appeal No. 113 of 2023 JUDGMENT OF THE COURT 16th February & 6th May, 2026 KOROSSO, JA.: The appellants herein were arraigned in the District Court of Mbufu at Mbulu (trial court) and charged with the offence of Armed Robbery, contrary to section 287A of the Penal Code, Cap 16 (Penal Code). Petro Safari @Manyika and Frank Petro @Kalasongo were jointly charged on 12/8/2017 at Ayalabe, Mbulu District, Manyara Region, for stealing cash Tanzanian shillings. 230,000/=, one cellular phone Itel make, valued at Tshs. 60,000/=, one cellular phone Tecno make valued at Tshs. 30,000/- and one jacket valued at Tshs. 10,000/=, total value of the properties Tshs.

330,000/=, the properties of one Haw Dagalho and immediately before or after such stealing, he cut his head using a machete to obtain the said properties. The appellants denied the charges. However, after a full trial, they were convicted as charged and each sentenced to imprisonment for a term of thirty (30) years. The background leading to the appeal is that, in the early hours of 12/8/2017, Haw Dagalho (PW1), a motorcycle rider (popularly known as a bodaboda rider), was at the restaurant run by Marietha Bomboo (PW2). At around 5.20 hours, the 1s t and 2n d appellants appeared at the restaurant and were served tea by PW2. Then, the 2n d appellant requested PW1 to take them to Bargish area for a fare of Tshs. 4000/=. Thereafter, on his motorcycle, PW1 left with the appellants and, upon reaching Ayarabe village, he was stopped by the 2n d appellant to attend a short call. When PW1 stopped his motorcycle, the appellants flanked him on both sides, and another person, Abas Pande, emerged from the bush to join the attackers. PWl's hand was then cut, and at the time, the 2n d appellant was holding a machete. PW1 was cut on the left side of his head and was ordered to hand over what he had in his possession, including cash and the cellular phone he had. The attackers took everything he had, as itemised in the charge sheet, including what was in his jacket pockets. During the fracas, PW1 managed to escape from the scene and raised an alarm, while being chased

by the 2n d appellant holding a machete, and managed to reach the house of Clement Akoonay (PW4) and lost consciousness. At the same time, upon seeing people coming to assist and heed the cry for help, the culprits managed to run away. PW1 was taken to Mbulu District Hospital, where he spent three days undergoing medical treatment. According to Thomas Shija (PW5), a medical doctor who examined PW1 on arrival at the hospital on 12/8/2017, PW1 had a big fresh wound on the left side of his head, which was bleeding. His findings revealed that PW1 injuries were caused by a sharp object, such as a machete. The 1st and 2nd appellants were arrested on 2/9/2019, a few days after PW1 had been discharged from the hospital and informed the Police that they had attacked him. Thereafter, they were arraigned, as already alluded to above. The 1st appellant pleaded not guilty to the offence charged. His testimony was intended to question and challenge the prosecution's evidence. On his part, the 2nd appellant denied the charge against him and testified that, from 18/9/2019, he had been imprisoned, serving a sentence imposed in another conviction unrelated to the instant appeal. He also challenged specific evidence presented by the prosecution. After a full trial, the court conducting the trial, satisfied that the offence charged against the appellants was proved beyond reasonable

doubt, convicted them and sentenced each appellant to thirty years’ imprisonment, with an order to pay Tshs. 430,000/= as compensation. Dissatisfied, the appellants appealed to the High Court, but the appeal was dismissed for want of merit. Still discontented, the appellants are now before the Court, armed with an eight (8)-grounded memorandum of appeal that faults both the trial and first appellate courts. Paraphrased, this memorandum essentially gives rise to the following seven complaints: One, that the case against the appellants was not proved beyond reasonable doubt. Two, insufficiency of identification of the appellants at the crime scene. Three, the propriety of the charge against the appellants. Four, failure to properly assess the contradictions in the evidence of PW1 and PW2, and in the evidence of PW2 and PW5. Five, questionable sanctity of the chain of custody of exhibit P ll. Six, inconsistencies and discrepancies in the prosecution evidence, and seven, failure to consider the defence evidence. When the appeal came for hearing, the 1s t and 2n d appellants appeared in person unrepresented, while the respondent Republic was represented by Ms. Saada Mohamed, learned Senior State Attorney. The 1st appellant kick-started his submission by praying that the grounds set out in the lodged joint memorandum of appeal and the written

statement amplifying those grounds be adopted. He implored us to allow the appeal and set him at liberty. The 2nd appellant supported the submission of the 1st respondent and prayed to be released from custody to join his family. On her part, Ms. Mohamed opted to respond to the appellants' grievances randomly and commenced with complaint number one, on whether the case for the prosecution against the appellants was proved to the standard required. Although she began by objecting to the appeal and supporting the conviction and sentence levied by the trial court and upheld by the first appellate court. However, she later decided otherwise, stating that upon further reflection, she was supporting the appeal on the grounds that the prosecution failed to prove that the appellants were properly identified. The learned Senior State Attorney submitted that the conditions for identification set out in Waziri Amani v. Republic [1980] TLR 250 were not fully met. She argued that the prosecution's evidence raised doubts and was not watertight, leaving room for mistaken identity. Thus, doubts should favour the appellants, she argued. Ms Mohamed further brought to light contradictions in the evidence, which she argued raised questions about whether the appellants were

properly identified. She also questioned the witnesses' testimony about the clothes the appellants were wearing on the fateful day, arguing that the prosecution's witnesses were inconsistent. Furthermore, she questioned the veracity of the evidence regarding where the appellants were supposed to go when they hired PW1, arguing that there is a contradiction between PWl's and PW4's evidence. Ms. Mohamed argued that the said contradictions were material. The learned Senior State Attorney questioned the evidence regarding the extent of lighting at PW2's restaurant, where PW1 and PW2 claimed to have seen the appellants and spent some time with them before their departure, and where the incident is said to have occurred. She argued that PW1, PW2 and PW4 did not testify on the extent of intensity of light at the said places to remove doubts of the possibility of mistaken identity. She contended that, with such weak evidence of identification, further evidence was required to remove doubts and the possibility of mistaken identity and cited the case of Suleimani Dago Swalehe v. Republic [2024] TZCA 280 to reinforce her contention. For the learned Senior State Attorney, the delay in arraigning the appellants without a clear explanation also left doubt as to whether PW1, PW2 and PW4 had clearly mentioned the names of the culprits, as the incident occurred in 2017 and the arraignment was in 2019. She thus urged 6

us to allow the appeal, as the prosecution failed to prove the case to the required standard. Rejoining, the 1s t appellant appreciated the concession of appeal from the learned Senior State Attorney and then reiterated his prayers for the fronted grievances to be favourably considered and the appeal to be allowed. On the part of the 2n d appellant, he reaffirmed the submissions and prayers from the 1s t appellant and implored us to find their grounds meritorious and allow the appeal. We have carefully considered the arguments from the appellants and the learned Senior State Attorney supporting the appeal. Having gone through the record of appeal, in the determination of this appeal, we shall preface by deliberating grievance number one on whether the case against the appellants was proved to the standard required and, in the process, invariably address the remaining complaints. Elements to prove the offence of armed robbery contrary to section 287A of the Penal Code were reiterated in the case of Amos Sita @Ngili v. Republic [2023] TZCA 17697, citing Shaban Said Ally v. Republic [2019] TZCA 382, alluded thus: "one, that there was stealing; two , that, immediately after stealing, the invader had a dangerous or offensive weapon; and three, that the

invader used or threatened to use actual violence in order to obtain or retain the stolen property:' Notably, the case of Kashima Mnandi v. Republic [2011] T7CA 537 added another ingredient; "that, the use o f dangerous or offensive weapon or robbery instrument must be directed against a person." In the present appeal, PW1 testified that various items listed in the charge sheet were stolen from him by two people who had hired him to take them to a place known as Bargish. According to him, the 1st and 2nd appellants robbed and attacked him. The trial and first appellate courts found PWl's evidence credible. As with the appellants' and the respondent's case, our scrutiny of the evidence on record reveals that some elements of robbery were not established to the required standard. For instance, we have failed to find any independent evidence substantiating PWl's ownership of the allegedly stolen items listed in the charge sheet. PWl's oral assertion was that the stolen items were taken from him when he was attacked and robbed; however, our perusal of the record of appeal has failed to uncover any proof of ownership of the said stolen items. We are aware that ownership may be proved where there is credible oral testimony and every witness is entitled to credence for his or her testimony to be believed (see, Good luck Kyando v. Republic [1966] TLR 367). In the current appeal, PW2, who had allegedly seen PW1 leave with 8

the appellants, stated that she only knew them by face and not names, and did not allude to having seen PW1 with any of the allegedly stolen items, such as the two mobile phones or the jacket, before he departed with the appellants. Therefore, in the absence of any other evidence to prove that PW1 had those items at the time he was attacked and robbed, we find that it leaves doubts which should benefit the appellants. Regarding whether a weapon was used at the scene immediately before, during or after the attack and robbery of PW1, both PW1 and PW4 testified that a machete was used during the incident and that they saw the 2nd appellant holding a machete at the scene of the crime. While PW4 saw the 2nd appellant chasing PW1, holding a machete, PW1 testified that the 2nd appellant used a machete to cut him on the left side of the head. According to PW1, while being cut and threatened with a machete by the 2nd appellant, the 1st appellant instructed PW1 to give whatever he had in his possession. We are of the view that the appellants' claim that the machete’s absence from the scene and its non-retrieval or tendering in court prove it was not used at the crime scene is misguided. This is because that fact alone does not in any way undermine the evidence of PW1 and PW4 that they saw a machete being used at the scene of the crime by one of the 9

appellants. We firmly believe that the evidence of PW5 corroborates that of PW1, namely that PW1 was cut with a machete on the left side of his head. PW5 testified that when PW1 arrived at the hospital on 12/8/2017, he had a fresh, large bleeding wound on the left side of his head, caused by a sharp object. The testimony of these witnesses was relied upon by both the trial and the first appellate courts, and we find that this element of robbery was proved. The next question is whether the appellants were properly identified as the perpetrators of the armed robbery against PW1. The appellants and the respondent's side submitted that the identification of the appellants was tainted by doubt and should be resolved in favour of the appellants. Time and again, we have reiterated that a person can only be convicted on identification evidence if the court is satisfied that such evidence is watertight and leaves no possibility of mistaken identity. This is because, as stated in the case of Waziri Amani (supra): "7776 evidence o f visual identification is o f the weakest kind and most unreliable. As such, courts must not act on visualidentification unless and until ail possibilities o f mistaken identity are eliminated and the court is satisfied that such evidence is watertight" 10

(See also, Hamisi Ally and Others v. Republic [2016] TZCA 320 and Chacha Jeremiah Murimi and Others v. Republic [2019] TZCA 52). The trial and first appellate courts relied on the evidence of recognition from PW1 and PW4, who identified the appellants, to find them sufficiently identified. Nevertheless, the Court has previously held that such evidence should not dispense with the conditions for favourable identification. In Kulwa Mwakajape and 2 Others v. Republic, Criminal Appeal No. 35 of 2005 (unreported), the Court emphasized that evidence of identification by recognition of a person known to the witnesses before should not derogate from the settled requirements for watertight identification. Again, in Said Chally Scania v. Republic [2007] TZCA 180, the Court stated: - " We wish to stress that even in recognition cases, dear evidence on source o f light and its intensity is o f paramount importance. This is because , as occasionaiiy held, even when a witness is purporting to recognize someone whom he knows, as was the case here; mistakes in recognition o f close relatives and friends are often made." Upon revisiting the record, it reveals that PW1 narrated how he met both appellants on the material day at PW2's restaurant. It was there that the appellants hired him to take them to Barghish for a fare of Tshs. ii

4000/=. The above evidence that PW1 was hired by two people from the restaurant is supported by PW2, the restaurant's owner. PW2 testified that at the restaurant, she served tea to two people, who she recognised by face but not by name, who later left with PW1 after hiring him to take them somewhere. At the trial, PW2 identified the two accused persons as those who had taken tea at her restaurant and left with PW1 on the fateful day. In his testimony, PW1 did not specify the exact time he was hired or when he left with the two people who hired him. We gather from PW2's evidence that the time was around 5.20 hours, as she stated it was the time she had served the same two people at her restaurant. Neither PW1 nor PW2 provided any details about the light’s intensity or brightness at the time. This omission effectively negated proper identification of the appellants. Based on their evidence, and relying on PW2 and PW4, who stated it was around 5.20 to 5.30 hours, with sunrise and electricity light still on, the prosecution’s evidence failed to establish that there was sufficient light at the restaurant and at the crime scene, where PW1 was ambushed. Indeed, the fact that there was electric light on at the time the charged incident occurred, invariably suggests that there was insufficient light from sunrise for proper identification of the perpetrators of the offence

charged. Even though the prosecution relied on evidence of recognition, namely that PW1 knew both appellants by name before the incident, and that the 2nd appellant was known to PW4 before the incident, we are satisfied that the other conditions relevant to proper identification were not fulfilled. The evidence related to the time when PW1, PW2 and PW4 observed the culprits at the restaurant and crime scene, together with the proximity between them, was not well articulated and thus cannot be said to fail within the ambit of what is required to remove doubts of proper identification. The evidence regarding the time PW1, PW2, and PW4 observed the accused persons at both the restaurant and the crime scene, and their proximity to those individuals, is not clearly set out. On the other hand, PWl's evidence regarding the appellants’ identification, while not conclusive, was not corroborated to the standard required by any other witness. PW2's dock identification of the appellants was made in the absence of any identification parade, despite her having stated that she knew the appellants only by face, not by name. The Court has previously dealt with such situations, as in the case of Francis Majaliwa Deus and 2 Others v. Republic, [2009] TZCA 92, it cited with approval a Kenyan case of Gabriel Kamau Njoroge versus 13

Republic [ 1982-88] 1 KAR 1134, 1136 in which the Court had this to say on the status of dock identification not preceded by an identification parade: "Dock identification is worthless unless it has been preceded by a properly conducted identification parade..." In essence, the evidence of PW2 did not warrant reliance for the purpose of identifying the appellants. On his part, PW4 did mention the 2n d appellant by name, but as stated earlier, the absence of evidence on the intensity of light and duration in observation of the 2n d appellant also leaves more questions than answers. Concerning the distance when observing the 2n d appellant, PW4 stated that the 2n d appellant came very close to the house, but did not reveal whether, at the time he could see the 2n d appellant, he was inside or outside the house, or whether there were any obstacles there. For the foregoing, plainly, the available evidence does not eliminate doubts about the accuracy of the appellants' identification. The sufficiency of the evidence for identifying the appellants at the crime scene and at the restaurant is further complicated by the unexplained delay in their arrest. The learned Senior State Attorney conceded that the prosecution did not explain the delay and left it to the Court to determine its impact on the case. It is now well settled that the delay in arresting a 14

suspect may cast doubts on the veracity of evidence of witnesses on the identification of the same. In Aziz Athumani @Buyogera v. Republic, Criminal Appeal 16 No. 222 of 1994 (still unreported), the Court underscored the fact that an unexplained delay in arresting a suspect cast doubt on the credibility of a witness who claims to have identified the same. In the present case, the record shows that the charged offence was committed on 12/8/2017. According to F8761 D/C Mohamed (PW6), the appellants were arrested for the offence charged on 2/9/2019 and arraigned on 11/9/2019. Regarding the almost two-year delay in arresting the appellants after the offence, PW3 stated that it was due to PWl's hospitalisation after the offence. However, this reason is not supported by evidence. PW1 testified that he was hospitalised for 3 days after the incident, while PW5 stated that PW1 spent about 14 days in hospital. According to PW6, PW1 was interviewed PW1 on 28/8/2017 when he gave the names of his assailants. If that is the case, why the two-year delay in arresting the appellants, having been named by PW1 on 28/8/2017? This casts doubt on PWl's evidence, including whether he properly identified the appellants and whether he mentioned their names to the investigators as testified. For the foregoing reasons, we are of the firm view that the prosecution failed to prove the case against the appellants beyond 15

reasonable doubt. We thus find no pressing need to determine the remaining complaints. In the end, we allow the appeal, quash the conviction and set aside the sentence and orders for both appellants. We order the immediate release of the appellants from custody unless otherwise detained for other lawful purposes. DATED at DODOMA this 28th day of April, 2026. W. B. KOROSSO JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL Judgment delivered this 6th day of May, 2026 via virtual Court in the presence of Appellants in person, Ms. Tusaje Samweli, learned State Attorney for the respondent and Mr. Oscar Msaki Court Clerk; is hereby certified as a true copy of the original. 16