Aman King Kipeta vs Republic (Criminal Appeal No. 412 of 2023) [2026] TZCA 386 (1 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA ( CORAM: MKUYE. J.A.. RUMANYIKA, J.A., And AGATHQ, 3 J U CRIMINAL APPEAL NO. 412 OF 2023 AMAN KING KIPETA................................................................APPELLANT VERSUS THE REPUBLIC ............................. ................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mbeya) (Monqella, J.) dated the 28th day of April, 2023 in fCriminal Appeal No. 04 of 2019) JUDGMENT OF THE COURT 3rd March & 01st April, 2026 RUMANYIKA. 3.A.: In the High Court of Tanzania at Mbeya, Aman King Kipeta (the appellant) and two others (Bakari Amos @ Beka and Eliya Kyando) were charged for the offence of murder contrary to Sections 196 and 197 of the Penal Code. Notably, down the lane the said Eliya Kyando who stood as the 3r d accused was discharged on a Nolle Prosequi. Bakari Amos @ Beka, the 2n d accused escaped from the post-trial custody and was convicted in absentia. This is the reason why the said two are not party to this appeal. The incident occurred on 20/07/2017, in Ipinda ward, Kyela district, in Mbeya Region. That, in the night of July 20, 2017, at about 22:45 hours,

the appellant and company murdered Erick Mwang'onda (the deceased) who had just closed his shop, now walking back home, together with his two companions; Joba Emily Mwangupili (PW1) and one Badili. The deceased carried bag, which turned out to have approximately TZS. 1,700,000.00. That, the culprits invaded them in a narrow footpath. PW1 identified the appellant, to be one of the assailants whom he knew before, a maize monger of Ipinda market. During that encounter, it was also said, unidentified man applied an explosive item which heat heavily. That PW1 and fellows dispersed, all terrified. Much as, the said heavy hit turned out to be a gunshot, which took the deceased's life. At first, the deceased was rushed to Ipinda Health Centre, where he was officially pronounced dead. The autopsy report by Dr. Ulrick Josephat (PW2) revealed that, the immediate cause of death was severe hamorrhage due to gunshot. It is also on record that the appellant was arrested on July 23, 2017, after he and one Bakari Amos were implicated in another murder case at Ipinda. PW5 recorded cautioned statement of the said Bakari Amos while PW6 recorded the appellant's statement (exhibit P4). The appellant, in his statement also named Bakari/Beka, Amos, Mboka, Eliya and Zozo @ Boy Zozo @ Matonoka, as co-offenders. In his statement (exhibit P3), Bakari narrated the incident to be a criminal racket which involved four of them.

That, he took a guard at the crime scene, while Rasi and one Bolizozo, confronted the deceased, targeting the hand bag containing money. In his defence evidence, the appellant who testified as DW1 consistently denied any involvement in the charged offence. He maintained that, he was an innocent cereal businessman of Ipinda Market and that, the police arrested him there. He challenged the victim's credibility, who testified as the sole eyewitness bitterly. That, if at all the incident occurred at night in a footpath, as alleged, the conditions were not favorable enough to allow any positive identification. Further discrediting the evidence, the appellant stated that, PW1 did not describe him at the earliest possible time. As such, the appellant pointed out some inconsistencies and contradictions in the prosecution evidence, maintaining that, the case was not proved against him and urged us to allow the appeal and set him free. After full trial, PW1 was found to be credible and therefore, the prosecution case proved to the hilt. His evidence was corroborated by PW5 and PW6 who recorded the said confession statements. That, the said confessional statements credibly established the chain of events which truth the appellant cannot disown. Therefore, the appellant and fellow were convicted and sentenced to suffer death by hanging. The said Bakari Amos @ Beka was convicted in absentia, as alluded to before.

Aggrieved with that decision, the appellant has preferred this appeal on a total of fourteen (14) grounds of appeal which are contained in the main and supplementary memoranda of appeal. At the scheduled hearing of the appeal, the appellant entered appearance in person and also, he had the services of Mr. Luka Ngogo, learned counsel. The respondent Republic was represented by Mr. Alex Mwita, learned Senior State Attorney, together with Messrs. Davice Msanga and Salmin Zuberi, both learned State Attorneys. On set, Mr. Ngogo abandoned the main memorandum of appeal. He only adopted the four grounds in the supplementary memorandum of appeal filed on 02/03/2026. Paraphrased, the grounds read thus; One, PW6 was not listed during committal proceedings rendering his evidence not counting, two, the doctrine of common intention was improperly invoked, three, material witnesses were not called and; four, the prosecution case was not proved beyond reasonable doubt. However, after a relatively short dialogue with the Court, Mr. Ngogo, on reflection dropped the first complaint, having noticed that, it is against the record, the reality on the ground. On the second, third and fourth complaints which were argued together, Mr. Ngogo, in a nutshell contended that, the prosecution case

was not proved beyond reasonable doubt. The learned counsel gave four reasons for his proposition; first, that, the learned trial Judge relied on the appellant's retracted cautioned statement, on that basis, without being corroborated, contrary to the law and good practice. Much as, it was argued, it being taken together with the respective witnesses' oral accounts, the alleged confession constituted no truth of the case, let alone some apparent material contradictions. Second, that, the purported eye witness, PW1 was not sure who, between the appellant and Bakari shot the deceased dead. It is so, Mr. Ngogo, further asserted, when cross examined PW1 made a paradigm U-turn changing his evidence in chief, saying that, it is not another person who was with the appellant but Amani (the appellant), third, that, identification of the appellant was not water tight, as PW1 did not describe him at the earliest possible opportune; and fourth, that, if at all, PW1 was in terror therefore, he could have not identified the appellant properly. About the complaint, on non-appearance in court of material witnesses, Mr. Ngogo mentioned them to be Mashaka and Lwitiko. However, learned the counsel, on a second thought withdrew the complaint down the lane. Last but not least is the fifth complaint, that the prosecution case was not proved beyond reasonable doubt, Mr. Ngogo contended that, PW1 in

totality did not connect the appellant with the charged offence, for the doctrine of common intention to apply in the circumstances. He prayed for the appeal to be allowed, and for the appellant to be set at liberty. Replying on invocation of the doctrine of common intention in terms of section 23 of the Penal Code, based on the evidence of PW1, Mr. Zuberi contended that, the learned trial Judge cannot be faulted. With regard to the alleged contradictions in the prosecution evidence, it was contended that, they were minor, not going to the root of the case. Further, it was asserted that, the alleged mishap apart, the doctrine of common intention was properly invoked in the circumstances. Much as PW1 properly recognized the appellant. As on the reliability of the retracted but uncorroborated cautioned statement of the appellant, it was Mr. Zuberi's contention that, the trial Judge cannot be faulted as she acted on it after warning herself. Prompted by the Court on the propriety or otherwise of the alleged visual identification, Mr. Zuberi contended that, PW1 made it well, after overcoming the terrifying situation. On the worries of PW1 to have some interest to serve in this case, Mr. Zuberi contended that, indeed, initially, PW1 and the appellant were charged together and jointly but later on PW1 discharged. However, it was asserted, nothing would prevent PW1 from being credible in the circumstances of the case. 6

In rejoinder, Mr. Ngogo contended that, the evidence of PW1 needs to be taken with great caution because he had the interest to serve. That, initially, all were charged together, but later discharged. That, if anything, the evidence of PW1 needed to be corroborated, which evidence is missing. On the application of the doctrine of common intention, it was further asserted that, it was improperly invoked. He bolstered his point citing the decision of the defunct East African Court in Wanjiro Wamiero & Others v. R [1955] 22 EACA. In the end, the learned counsel urged us to allow the appeal. We have heard the contending submissions by the parties' learned counsel, the cited authorities, and also considered the entire record. The issues for consideration are narrowed to two, as follows; One, whether the doctrine of common intention was properly invoked and; two, whether the prosecution case was proved beyond reasonable doubt. It is common knowledge that, for the charge of murder to be proved, at least three things have to happen; One, that human being is dead, two, that his death was unnatural and three, that the accused caused the death through unlawful commission or omission with malice aforethought. See for instance, Denis Frank Tarimo @ Novat & Another v. R (Criminal Appeal No. 140 of 2021) [2024] TZCA 431.

It is not disputed, in the present case that the deceased is dead and that his death was unnatural. It is worth noting that, existence of the two material facts are exhibited in the corresponding post mortem examination (exhibit P2). Therefore, the follow up issue is whether the appellant is the responsible murderer, solely based on the doctrine of common intention, as held by the trial court First and foremost, is with regard to identification of the appellant, which is not a ground of appeal. However, we will say a word or two; One, At least PW1 was undisputed the sole eye witness. This is to say that, the evidence of PW1 needed corroboration in the circumstances of the case. Given the fact that, the deceased and another were invaded in a narrow path at about 22:45 hours. And that, PW1 just recognized the appellant as maize monger at Ipinda Market. On page 52 of the record of appeal, that in so identifying the appellant, PW1 was aided by electric tube light, in such proximity of less than one meter apart. However, serious doubts arise from PW l's evidence for one main reason; no actual positioning of the alleged electric tube light was stated, let alone its intensity. In other words, the source of the alleged aiding light and its intensity is paramount. We have held so, now and again. See- Walter s/o Dominic @ Omundi & Another v. R (Criminal Appeal No. 15 of 2005) [2005] TZCA 166. 8

In the absence of such clarification, as is in the present case, therefore, the Court is left to speculate on the reliability of the evidence. Given the alleged conditions that prevailed at the material time. It is a settled law that, visual identification at night is the most unreliable evidence, unless the evidence is watertight., which is not the case before us. We shall explain. PW1 may have recognized the appellant, as claimed, granted. However, it was not disputed, in the present case that PW1 did not describe the appellant until at a later stage, during the court. Therefore, no distinctive physical complexion, attire, or other specific characteristics of the appellant were given. While we are aware that recognition generally is more reliable than visual identification of a stranger, still the courts must act on this kind of evidence with great care and caution. It is so, particularly where, as is the case, identification was made under unfavorable conditions. We also took this stance, in Elipafula Timotheo v. R (Criminal Appeal No. 350 of 2014) [2015] TZCA 310. In view of the highlighted evidential gaps, therefore, we are not satisfied that the appellant was properly identified. While cautious of not repeating ourselves, for the reason of the said unreliable source of light and in the absence of prior descriptive details, all left much to be desired. It rendered the identification of the appellant made by PW1 less than

being watertight. Needless, to say if PW1 identified the said missing Bolizozo. Consequently, despite the evidence of the appellant's co-accused who implicated him and the repudiated cautioned statement of the appellant, the overall evidence is too insufficient to offer safe and independent evidence to corroborate the alleged confessional statement. Therefore, not only the evidence of PW1 could not corroborate the appellant's retracted confession which also needed to be corroborated, but also, the doctrine of common intention was respectfully invoked prematurely and improperly. The Court has so pronounced itself on different occasions, such as in Abubakari Issa @ Mnyambo v. R (Criminal Appeal No. 34 of 2010) [2011] TZCA 342 and in Jumanne Juma v. R (Criminal Appeal No. 17 of 1985) [1986] TZCA 111. Next for our consideration is the appellant's complaint that the doctrine of common intention under Section 23 of the Penal Code was not established and properly invoked against the appellant. Notably, in applying this doctrine, the High Court, relied primarily on the cautioned statements of the accused persons (exhibits P3 and P4). PW1 may have positively identified the said, Bolizozo @ Zozo/Matonoka as the one who played the alleged active role, shooting the deceased dead. However, that culprit was undisputedly not arrested and charged together with the 10

appellant and fellow. It is unfortunate that the learned trial Judge convicted the appellant based on the doctrine of common intention connecting the missing Bolizozo. The findings of the court, in this regard are not farfetched. They are on pages 221 of the record of appeal, reading as follows: "It is the 1st accused, through his cautioned statement,, who stated that the deceased was hit by a bullet fired by one, Bolizozo, who they had together planned to rob the deceased... (not apprehended and charged) ... the accused persons in this case cannot escape responsibility in the offence, which was a probable consequence of the robbery. Their responsibility is grounded under the doctrine o f common intention. This is provided under section 23 of the Penai Code... (Emphasize added) The condition precedent for invocation of the doctrine of common intention was stipulated then under section 23 of the Penal Code as hereunder: "When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is ii

committed o f such a nature that its commission was a probable consequence o f the prosecution of such purpose, each of them is deemed to have committed the offence". As a matter of fact, on the doctrine of common intention has been tested and further qualified. It is not wider than a non-selective web net which may catch all including the strangers to the charge. We observed so also in Daimon Malekela @ Maungaunga v. R (Criminal Appeal No. 205 of 2005 (unreported), that: ...the doctrine o f common intention ; as distinguished from similar intention, can only be successfully invoked where two or more persons form a common intention to prosecute an unlawful purpose and they commit an offence and are eventually jointly charged and tried together... (Emphasis added) Applying the above legal principle, as re-stated above, it cannot be overstated in the present case, that the said doctrine was misapplied, as rightly contended by Mr. Ngogo. At least it is undeniable fact that, though alleged to have played the active rote in the commission of the charged offence, Bolizozo has never been a party to this case. We want to stress that, even if the said Bolizozo was not actually the executor of that act, 12

still the doctrine of common intention would apply, save for his being alien to impugned proceedings. Needless, to say that, the omission to arrest and charge the Bolizozo, as noted above, rendered the doctrine respectfully misplaced. Regarding the issue of visual identification, PW1 may have identified the appellant at night, but in the said stressful/terrifying circumstances. He was aided by the said wanting source of light, brief observation and terrifying atmosphere. These factors render the identification, which we find weak, inherently unreliable. Therefore, the alleged identification is inconsistent with the guidance in Waziri Amani v. R [1980] T.L.R 250, that visual identification at night must be approached with caution, unless it is watertight, which is not the case before us. Also, it is a settled law that, weak identification of unknown perpetrators requires a careful scrutiny before invoking the doctrine of common intention to convict. At least the appellant, in the present case retracted the said confession, which is the only evidence linking him with a certain unidentified executor. As such, the doctrine of common intention permits liability for acts committed by co-offenders who are charged together and jointly, as observed above. It is presupposed that the culprits shared knowledge of the probable consequences of their plot In the absence of 13

independent verification that the alleged Bolizozo existed and indeed shot the deceased dead, the chain of liability is weakened and it crumbles. Nonetheless, we have noted the position and evidence of PW1 as against others. He is uncredible hence unreliable, unless his evidence is subjected to scrutiny and corroborated. At least, it is not seriously disputed that, initially, PW1 was charged together with the appellant, among others. He testified as such while under cross-examination, as appearing on page 54 of the record of appeal. Potentially, a witness with such an interest to serve, ought to be taken sparingly. See- Abdallah bin Wendo v. R [1953]. Without any corroborative evidence, therefore, the shortfalls above renders the conviction shaky and unsafe. This is found so, while mindful of the general settled law that, every witness is entitled to credence and has to be believed. To sum up, while the trial court, respectfully misapplied the principle of common intention, as alluded to before, therefore, the foundation for its application is unstable. Not only identification of the appellant is questionable but also, Bolizozo, the alleged executor was not arrested and charged together with the appellant. Suffices, this point to raise unresolved reasonable doubt as to whether the appellant shared the common intention to commit the charged offence. Let alone the unsound reliance on uncorroborated retracted confession of the appellant. 14

Similarly, the reliance on the evidence of PW1, who had an interest to serve, as observed above, left much to be desired. It undermined safety of the impugned conviction. Therefore, for the reason, on account that the prosecution case was not proved beyond reasonable doubt, the appeal is merited and we allow it entirely. We order immediate release of the appellant from prison unless held for other lawful reasons. DATED at DODOMA this 31st day of March, 2026. R. K. MKUYE U. J. AGATHO JUSTICE OF APPEAL The Judgment delivered this 1s t day of April, 2026 in the presence of the Appellant in person, Ntegwa Mpinyagwa, learned State Attorney representing the respondent/Republic, through Virtual Court and Mr. Shafii Kassim, the Court Clerk, is hereby certified as a true copy of the JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL origina 15