Frank Stevini @ Chansensi & Another vs Republic (Criminal Appeal No. 130 of 2024) [2026] TZCA 396 (10 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: SEHEL. 3.A.. MGONYA, J.A. And KHAMIS. J.A.^ CRIMINAL APPEAL NO. 130 OF 2024 FRANK STEVINI @ CHANSESI ..................... ...................... 1st APPELLANT ATHUMAN OMARI @ SALUM @ MNDENGE ...... .............. 2n d APPELLANT VERSUS THE REPUBLIC................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Luvanda. J.1 ) dated the 8th day of September, 2023 in Criminal Appeal No. 65 of 2023 JUDGMENT OF THE COURT 11th February, & 10th April, 2026 SEHEL. J.A.: In the District Court of Temeke at Temeke (the trial court), the appellants together with Athumani s/o Bakari Liyonga @ Mwiba, who is not party to the present appeal, were jointly charged with armed robbery contrary to section 287A of the Penal Code. At the end of the full trial, the trial court acquitted Athumani s/o Bakari Liyonga @ Mwiba who was the 2n d accused person, whereas the appellants were both found guilty as charged, convicted and each sentenced to thirty years imprisonment. Aggrieved, the appellants unsuccessfully appealed to the High Court of Tanzania at Dar es Salaam (the first appellate court), hence, this second appeal. Briefly, the prosecution case was as follows: on 6th June, 2021 at around 02:00 hrs,, Joel Mathew Gumbo (PW1) was at home sleeping. He was suddenly awaken by a sound of a falling pan from the kitchen. He woke up and headed to the kitchen where he saw three people wearing black clothes. He claimed to have recognized the 1s t and 2n d appellants with the help of a bulb which was at the corridor outside of the house. It illuminated the kitchen and the sitting room. He was able to recognize the 1s t appellant as a person who sells and burn CDs and the 2n d appellant as a volunteered community security guard. According to PW1, he was standing ten (10) meters away from his robbers and the 1s t appellant ordered the 2n d appellant who was holding a knife, to finish him. Having seen the threat, PW1 quickly ran back to his room and locked himself in from inside. He called his wife, Judith Johson Kileo (PW4), who was attending a wedding ceremony away from the house, and informed her that robbers invaded their house. He advised the wife not to come back home directly without seeking assistance from the neighbours. 2 However, at the time PW1 called her, PW4 was already on her way home and upon arrival, she saw three men. She witnessed one man jumping over the wall and handed over a TV and a laptop to another man who was standing outside the house. They then left. PW4 claimed that she recognized the 1s t and 2n d appellants by the aid of an electric light bulbs positioned outside the house. Thereafter, PW1 opened the gate. When PW1 and PW4 entered inside the house, they noticed the robbers had left with a television set make LG valued at TZS. 2,000,000.00, a laptop, a microwave make Coandy valued at TZS. 250,000.00, a rice cooker valued at TZS. 650,000.00, and a laptop bag which had in it USD 1850. In the following morning, PW1 reported the matter to the ten cell leader of his area who advised him to go to a police station. He therefore reported the incident at the Sigara Police Post. The case file was subsequently transferred to Chang'ombe Police Station. It happened that, on 17th January, 2022, robbers invaded into the house of PWl's friend and neighbour, one Abdallah Mraba Kupa (PW2) and stole therefrom a television set. According to PW2, his maid identified the appellants as his robbers. He therefore went up to the house of the 1s t appellant where he saw his stolen television set. 3 PW2 informed his friend, PW1, and the duo reported the matter at the police station. The 1s t appellant was arrested on 19th January, 2022, the 2n d appellant was arrested on 22n d January, 2022 while the 3r d accused person was arrested on 11th April, 2022. An investigative officer, one D.7687 Detective Sargent Mohamed (PW3) interrogated the appellants and the 2n d accused person. The 1s t appellant denied any involvement but the 2n d appellant admitted to have committed the offence. His cautioned statement was admitted in evidence as exhibit PI. In their defence, each of the appellants denied to have committed the offence. The 1s t appellant admitted that he was arrested on 19th January, 2022 at Lumo Sun City bar by the police officers but was not told the reasons for his arrest. He claimed that, on the fateful day, he was at the bar. The 2n d appellant admitted that he was arrested on 21s t January, 2022, for the offence of a vagabond but later on, on 17th May, 2022, he was jointly charged with the 1s t appellant and 2n d accused for the armed robbery. He said, Athumani s/o Bakari Liyonga @ Mwiba was a stranger to him. He also admitted to sign a paper on 14th February, 2022, but claimed he was tricked to sign the said paper whose 4 contents were unknown by police officers who told him it was for bail conditions. The 2n d accused person also admitted that he was arrested on 11th April, 2022, white at home for the offence of an unlawful possession of cannabis sativa but later on he was jointly charged with the offence of armed robbery. At the conclusion of the trial, the trial court was satisfied that the appellants were positively identified by PW1 and PW4 on the fateful night. That, PW1 who was standing ten meters away from the robbers managed to identify the appellants with the aid of an electric light that illuminated the corridor. Further, both PW1 and PW4 were able to recognize the 1s t appellant as a merchant dealer of CDs while the 2n d appellant was a community security guard. The trial court found that the identifying witnesses were credible as they named their attackers at the earliest opportunity at Sigara Police Post which information led to the arrest of the appellants. It also found that, although the 2n d accused person was named by the appellants, he was not identified at the scene of crime by PW1 and PW4. Accordingly, it found the appellants guilt, and thus, convicted and 5 sentenced them as aforesaid while the 2n d accused person was acquitted. On appeal, the first appellate court concurred with the trial court that PW1 who stood a distance of ten metres away from his room door to the place where the appellants stood. He recognized the 1s t and 2n d appellants as CD vendor and community security guard, respectively by the aid of a bulb which illuminated the inside corridor and sitting room. It was also satisfied that the time taken by PW1 to observe the appellants which was five to ten minutes was enough to rule out any mistaken identity. In addition, the first appellate court was satisfied that the electric bulbs positioned outside the surveyed houses including PWl's house illuminated enough light which enabled PW4 to positively identify the appellants at the time when they were jumping over a wall fence after stealing TV. In that regard, it upheld the conviction and the sentence meted to the appellants by the trial court. On the other hand, it expunged the cautioned statement (exhibit PI) as it was found to have been unprocedurally admitted in evidence. With such finding, the appellants preferred this second appeal. 6 On 7th August, 2024, the appellants filed a joint memorandum of appeal comprising of six grounds of appeal and on 28th April, 2025, they filed a supplementary memorandum of appeal raising two grounds of appeal. The appellants also filed their joint written submissions in support of their grounds of appeal. We shall deal with the grounds of appeal in a manner adopted and submitted by the learned State Attorney. At the hearing of the appeal, the appellants appeared in person, unrepresented whereas Ms. Veronica Akwilini Moshi, learned Senior State Attorney, assisted by Ms. Irene Njovu John, learned State Attorney, appeared for the respondent Republic. When given a chance to submit on the grounds of appeal, the 1s t appellant argued that the respondent failed to prove the charged offence against them as there was a variance between a charge sheet and evidence of PW1 and PW4. Elaborating, he submitted that the stolen items listed in the particulars of offence of the charge sheet materially differed with the itemized stolen narrated by PW1. While the charge sheet listed one smart TV make LG, one rice cooker make Kenwood, one microwave make Coandy, one laptop make Apple, cash money USD 8500, radio make LG, PW1 mentioned one TV make LG, 7 laptop microwave make Coandy, rice cooker, laptop in a bag which had USD 1850. He added that the alleged stolen TV was not tendered before the trial court to establish theft. He further argued that the claimed identification was too general as the description in terms of their physiques and attire was not explained by PW1 and PW4. He added that the source of light which was outside the house could not be enough for proper identification. On his part, the 2n d appellant simply adopted the grounds of appeal and preferred for the respondent Republic to respond while reserving his right of rejoinder later should it be necessary to do so. Ms. Moshi began her reply submission by informing the Court that the respondent is supporting the appeal. She admitted that the identification was so weak and unreliable that no trial court could come to a conclusion that the appellants were positively identified. Relying on the case of Waziri Amani v. The Republic [1980] T.L.R. 250, the learned Senior State Attorney submitted that while PW1 and PW4 claimed that they identified the appellants by the electricity bulb positioned outside the house, the intensity of the light illuminated therefrom was not disclosed to enable the trial court to assess as to whether conditions for identification was favourable. In the same vein, 8 the learned Senior State Attorney argued that PW4 did not explain the time taken and the distance she was in observing the robbers, She further submitted that, failure by PW1 and PW4 to name the appellants at the earliest opportunity to the ten-cell leader or Sigara Police Post tainted their credibility. She referred us to cases of Hassan Hussein v. The Republic [2023] TZCA 17304 and Godfrey Yahe & Another v. The Republic [2012] TZCA 180 for the proposition that the ability of a witness to name a suspect at the earliest possible opportunity is an all- important assurance of his reliability in the same way as unexplained delay or complete failure to do so should put a prudent court to inquiry. Addressing the complaint that the charge was at variance with the evidence, Ms. Moshi argued that while the charge alleges that among the stolen properties was cash money USD 8500, PW1 said the money stolen was USD 1850. She argued that given the variance, the prosecution ought to have amended the charge in terms of section 251 (1) of the CPA but did not do so. It was therefore the submission of Ms. Moshi that the charge was not proven to the hilt. 9 From the submissions, the issue which stands for our determination is whether the charge of armed robbery was proved against the appellants beyond reasonable doubt. Before going any further, we wish to point out the obvious fact that this being a second appeal, the Court is cautious against interference with concurrent findings of facts by the two courts below. The Court can only interfere with concurrent findings of fact by the two courts below where there are mis-directions or non-directions on the evidence, a miscarriage of justice or a violation of some principle of law or practice - see: The Director of Public Prosecutions v. Jaffari Mfaume Kawawa [1981] T.LR. 149; Musa Mwaikunda v. The Republic [2006] T.LR. 387 and Dickson Elia Nsamba Shapwata & Another v. The Republic [2008] TZCA 17. In this appeal, we shall be mindful with such settled position of the law. It is noteworthy that both the trial court and first appellate court held that the appellants were positively identified. The first appellate court reasoned that the evidence of recognition by PW1 and PW4 was credible, water light and reliable as all conditions for positive identification were met; PW1 explained the extent of intensity and a distance he stood between him and the culprits and that both PW1 10 and PW2 were able to name the appellants including their business and occupation. Admittedly, PW1 claimed to have recognized the appellants. For ease of reference, we take a liberty to reproduce part of the extract of PWl's evidence in chief that: "...The 1st accused sells CD’ S, the J d accused is MHnzi Shirlkishl to our place and I identified them because at outside there is a bulb which reflects the corridor inside. The buib can even reflect the sitting room. We were like 10 meters from my room door to where the accused were standing. "[Emphasis added]. Our re-appraisal of the entire evidence on the record of appeal, we failed to find any scintilla of evidence suggesting that PW1 and PW4 mentioned the appellants to any person. It is not on record that PW1 named the appellants to the three neighbors who responded to PW4's alarm on that fateful night. Yet again, the record is silent as to whether PW1 named the appellants to the ten-cell leader or to Sigara Police Post where he first reported the armed robbery incident soon after its occurrence. This Court has now and then stressed that the ability of a witness to name a suspect at the earliest possible opportunity is an 11 all-important assurance of his reliability in the same way as unexplained delay or complete failure to do so should put a prudent court to inquiry. For instance, in the case of Jaribu Abdallah v. The Republic [2003] T.L.R. 271, the Court said: "In matters o f identification it is not enough mereiy to iook at factors favouring accurate identification ; equaiiy important is the credibility o f the witness. The conditions for identifications might appear ideai but that is not a guarantee against untruthful evidence. The ability o f the witness to name the offender at the earliest possible opportunity is in our view reassuring though not a decisive factor." [Emphasis added]. We are therefore satisfied that the failure by PW1 and PW4 to name the appellants whom they claimed to have recognized them at the scene of crime, greatly undermined their credibility. The alleged recognition could not have been acted upon by both the trial court and the first appellate court. In the end, we are satisfied that both two lower courts misapprehended the evidence on the identification of the appellants, thus, we are entitled to interfere with the concurrent 12 findings of the two courts below. In the end, we find merit on the appeal. Accordingly, we allow the appeal, quash the conviction, set aside the sentence and order for the immediate release of Frank Stevini @ Chansensi and Athuman Omari @ Salumu @ Mndenge, the appellants, from prison custody unless they are lawfully held for other reasons. DATED at DODOMA 8th day of April, 2026. B. M. A. SEHEL JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL Judgment delivered Virtually this 10th day of April, 2026 in the presence of the appellants in person - unrepresented, Ms. Grace Kibaki, learned State Attorney for the Respondent/Republic and Ms. Christina Mwanandenje, Court Clerk is hereby certified as a true copy of the original. W. A. HAMZA DEPUTY REGISTRAR COURT OF APPEAL findings of the two courts below. In the end, we find merit on the appeal. Accordingly, we allow the appeal, quash the conviction, set aside the sentence and order for the immediate release of Frank Stevini @ Chansensi and Athuman Omari @ Salumu @ Mndenge, the appellants, from prison custody unless they are lawfully held for other reasons. DATED at DODOMA 8th day of April, 2026. B. M. A. SEHEL JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL Judgment delivered virtually this 10th day of April, 2026 in the presence of the appellants in person - unrepresented, Ms. Grace Kibaki, learned State Attorney for the Respondent/Republic and Ms. , Court Clerk is hereby certified as a true copy W. A. HAMZA DEPUTY REGISTRAR COURT OF APPEAL 13