Hassan Benard Mwangele vs Republic (Criminal Appeal No. 79 of 2023) [2026] TZCA 305 (11 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA ( CORAM: MKUYE. 3.A.. RUMANYIKA. 3.A. And AGATHO. J.AJ CRIMINAL APPEAL NO. 79 OF 2023 HASSAN BENARD MWANGELE .............................................. APPELLANT VERSUS THE REPUBLIC............................................................... RESPONDENT (Appeal from the decision of the High court of Tanzania at Mbeya) (Monqella, 3.) dated the 30th day of 3anuary, 2023 in Criminal Appeal No. 154 of 2022 JUDGMENT OF THE COURT 17Ih February & l l lh March, 2026 RUMANYIKA. J.A This appeal arises from the judgment of the High Court of Tanzania at Mbeya in Criminal Appeal No. 154 of 2022, where the decision of Kyela District Court (the trial court) in Criminal Case No. 171 of 2021 was partly overturned. Earlier on, the appellant, Hassan s/o Benard Mwangele was charged, and ultimately convicted on three counts, namely; arson and causing grievous bodily harm (two counts), contrary to sections 319(a) and 225 of the Penal Code. 1

It was alleged that on 17th November 2021 at about 21.45 hours at Ikambi B Village in Kyela District, the appellant wilfully and unlawfully set a house of Elizabeth d/o Etison Nzoka on fire thereby causing grievous bodily harm to two children; Venance s/o Sanctus Mwanalyobo and Jestina Sanctus. At the trial, the prosecution lined up five witnesses. It was testified that the appellant and PW1, Elizabeth d/o Etison Nzoka were lovers, blessed with one child. That, later, their relationship became sour and fell apart, due to some regular misunderstandings and conflicts between them. According to PW1, while together with the child victims at her work place selling some local brews, the appellant stormed in. He threatened her verbally, instilling fear in her that he would soon "teach her a lesson". PW1 thereafter sent the children back home. They were PW2, one Venance, Jestina, and their infant sibling. That, on arrival she found her house burnt, and PW2 named the appellant as the perpetrator. The young boy, PW2, testified that, on their arrival at home, the appellant who seemingly was behind them, unnoticed from the pombe shop, he ordered them to remain inside and die there. Then he locked them in and set the house on fire. PW2 also testified that he identified the appellant by voice, as he was step father, and familiar to the voice. He sustained some bum wounds on

the hands and feet, but the victims all managed to escape, rescued by some neighbors who responded to the alarm raised. PW4, is the Hamlet Chairman in the locality who also arrived there immediately. He found the children injured by the fire, and PW1 who was down there unconscious. That, PW2 named the appellant instantly as the perpetrator of that act. PW3 is a medical officer who clinically examined the victims at Kyela District Hospital in early hours of the 18th November 2021. The corresponding PF3 was admitted in evidence as exhibit PI. D/SSGT Gilbert (PW5) is the one who investigated the case. He visited the crime scene and drew a sketch map plan, later he arrested the appellant and charged him accordingly. It was also testified that the appellant, while being interrogated by the police regretted for what had happened, as he did not set the house on fire intentionally, but drunk. In his defence evidence testifying as DW1, the appellant denied the commission of the charged offences. That, he did not get onto the scene crime at the alleged material time. That, he was drunk, but did not deliberately commit the charged offences. Nonetheless, he admitted knowing PW1 and the fellows. The trial Court, in the end was satisfied, finding the prosecution case to have been proved beyond reasonable doubt, in all counts.

Consequently, the appellant was convicted as charged and sentenced to life imprisonment for arson and to pay a fine of ITS. 1,000,000.00 or a term of one year imprisonment in default. The appellant's appeal to the High Court was partly successful, as the conviction and sentence on the count of arson was upheld. The first appellate court upheld the conviction and sentence on the count of arson but it found the two counts of grievous harm not proved beyond reasonable doubt and quashed the respective conviction and sentence. He is still aggrieved, hence the present second appeal, on six grounds. Three in the substantive memorandum of appeal and the other three in the supplementary memorandum of appeal. They were filed on 19th May, 2023 and on 10th February, 2026, respectively. However, those grounds of appeal may boil down only to five main points of grievance, paraphrased as follows; One, the petition of appeal was not evaluated, two, the appellant was not properly identified. Three, a material witness was not called, four, the appellant's regretting words were misconstrued to mean oral confession; and five, the prosecution case was not proved beyond reasonable doubt. 4

At the hearing, the appellant appeared in person unrepresented whereas Messrs. Davice Msanga and Salmin Zuberi, learned State Attorney represented the respondent Republic. At the very outset, the appellant let the learned State counsel respond to the grounds of appeal while retaining his right to rejoin, should the need arise. Mr. Zuberi did not support the appeal. On the complaint concerning alleged improper evaluation of the petition of appeal, the learned State Attorney found it to be inconsistent with the record. He contended that those grounds were actually canvassed, as exhaustively as required, and the learned Judge arrived at such a just decision. Referring to the court's findings as they appear on page 96 of the record of appeal, Mr. Zuberi implored us to dismiss the complaint for being inconsistent with the record. Regarding the appellant’s complaint and allegedly being identified by PW2, it was Mr. Zuberi's assertion that the latter was positive in his evidence, as appears on page 21 of the record of appeal vividly. It was contended, thus, that no way PW2 could mistake identity of his own step father, under the circumstances. That, the boy recognized him visually and by voice, as they were familiar to each other. It was also

contended that, the said words of threat were uttered by none other than the appellant immediately before the commission of the charged offences. To bolster his point, Mr. Zuberi cited our decision in Chokera Mwita v. R (Criminal Appeal No. 17 of 2010) [2012] TZCA 329. In that case, we observed that voice recognition is reliable and acceptable evidence, where, as is the case here, the witness is familiar with that voice. We were urged to find this ground also unmerited and dismiss it. As regards the prosecution's failure to call Jestina Santus as material witness for the offence in the third count, Mr. Zuberi contended that this complaint is overtaken by events, as the corresponding conviction was overturned by the first appellate court. About the appellant's complaint, his remorseful words being misconstrued, to mean an oral confession, Mr. Zuberi contended that the learned Judge cannot be faulted, as also, those words could not mean a disguised plea of guilty. However, it was further argued, the appellant uttered the words, with apology that his act is not intentional cannot be underrated, regarding his liability. On whether or not the prosecution case was proved to the hilt, it was Mr. Zuberi's contention that indeed, it was. He asserted that, the totality of the evidence of PW2 who properly identified and named the

appellant immediately, let alone the latter's post-conducts particularly the words that the act was unintentional, it cannot be said that someone else set the house on fire other than the appellant himself. In fine, Mr. Zuberi urged the Court to dismiss the appeal entirely. Rejoining, the appellant urged us to consider his complaints and allow the appeal. He also pleaded general ignorance, as he is a layman, incapable of competing with the two learned State counsel. He prayed to be set free. Upon considering the submissions of the learned State Counsel, the authorities cited, the appellant's concerns, and upon reviewing the record, there is only one pivotal issue for our consideration. It is whether the prosecution case was proved beyond reasonable doubt, in this case that, the appellant burnt the complainant's house, as charged. Recalled, the 1s t complaint concerns the appellant's petition of appeal being improperly evaluated. To answer this, our take off point is the settled law that an appellate court has to apply its mind to each specific complaint raised by the parties and resolve them. Failure to do amounts to an error of law, as it was observed in France Michael Nyoni v. R (Criminal Appeal 505 of 2020) [2022] TZCA 679.

Upon examining the impugned judgement, it is apparent to us that the learned judge addressed all complaints of the appellant, as it was ably argued by Mr. Zuberi. As such, all issues raised were dully addressed and given due attention, as it is exhibited on pages 96 to 102 of the record of appeal. In other words, any assertion to the contrary is respectfully misplaced, inconsistent with the record and not worth of being entertained. Therefore, we find the first complaint to be devoid of merit. The second complaint concerns identification of the appellant by PW2 (Venance) which is faulted for being improper. That, he could not have been ably identified by the boy while inside the material house at night, without at least describing the aiding source of light, consistent with the Court's observation in Rehani Said Nyamila v. R (Criminal Appeal No.222 of 2019) [2021] TZCA 301. We agree with Mr. Zuberi that, in absence of any vivid evidence to show the source of light which aided PW2, in those circumstances to identify the appellant at about 21:00 hours, chances of a mistaken visual identity could not be ruled out in the circumstances. Moreover, we also note that, the PW2's observation of the appellant at the scene of crime may have been brief and traumatic, under the circumstances. 8

Needless, to say that the evidence of PW2 could not fully satisfy the conditions for any favorable visual identification as set out by the Court in Waziri Amani v. R [1980] T.L.R 250. Nonetheless, it is clear to us in the present case that the conviction of the appellant was not founded solely on visual identification by PW2, but also on voice recognition. It is undisputed fact, literally, that the appellant is PW2's stepfather, therefore, the latter knew him prior to the material incident. To show that he managed to hear and identify the appellant's voice, he consistently reproduced the said words. They are appearing on page 21 of the record of appeal, as follows: " ... Mubaki humo humo, mfie humo humo" Literally, meaning that PW2 and his siblings should not move from the house being burnt down until they die there. It is a trite law that recognition of the accused's voice by a person who is familiar with it is reliable evidence. See- Emmanuel Wilson v. R (Criminal Appeal No. 531 of 2021) [2024] TZCA 1228. Luckily, it was not the appellant's complaint in the present case that PW2 was not familiar with his voice before. Therefore, it could not be said the appellant's voice was mistaken in the circumstances of the case. See-

Hekima Madawa Mbunda & Another v. R (Criminal Appeal No. 566 of 2019) [2022] TZCA 138. Similarly, it is a trite law, based on familiarity test, that recognition of a culprit by voice, in this case the appellant's voice by PW2 constitutes better and reliable evidence, independent of visual identification. We have reiterated this position, such as in Waziri Zuberi Makombe v. R (Criminal Appeal 289 of 2007) [2010] TZCA 129. Put in other words, and going by the cinematography-test, surely, the said appellant's words of threat to PW1, and shortly thereafter extended to PW2, cannot be ignored. They preceded the PW l's house being set on fire, immediately. It was by design. This suggested, clearly, such an uninterrupted chain and series of events between the said threats and the subsequent criminal act of the appellant. It follows, therefore, that, even after discounting visual identification of the appellant by PW2 as proposed above, still the surrounding circumstances would irresistibly point to the guilt of the appellant, as the perpetrator of the act. Moreover, the prosecution's failure to call the said Jestina as a witness was inconsequential in the circumstances. This is in accordance with the dictates of the long-established legal principle, that evidence 10

is counted by its quality and not by its quantity, so long as the available adduced evidence was cogent, credible and good enough to prove the charged offence. No doubt the present case met the threshold. As a matter of fact, moreover, the record before us does not suggest any evidential gap, in the prosecution case that required to be filled by said Jestina's testimony. See- Bonus Nchimbi v. R (Criminal Appeal No. 347 of 2022) [2024] TZCA 795. Therefore, the complaint also fails. The appellant's last complaint, it is recalled, is on the first appellate court's finding that the appellant "regretted", confessing to the commission of the charged offence. Before we embark on the meaning of the words under reference, with a view to faulting the learned first appellate or otherwise, we shall take the liberty of reproducing them, as they appear on page 43 of the record of appeal. They read thus: "...I told the interrogator that I regret to have done. I really regret to have done so. I also told the police officer that I did not bum the house of Elizabeth Nzoka intentionally. But someone decided to treat me as an evil person. I was drunk on that day...". (Emphasis added)

Reading the excerpt above, it is not clear to us, what exactly was the appellant's case and defence evidence, in justification of his act of setting the said house on fire. Was it by accident? Or because of intoxication by liquor? This, with all intents and purposes, however, cannot be mistaken for a weak defence evidence, which do not found conviction. It is so because for a prosecution case to sail out, the test has always been proof beyond reasonable doubt. We note that, the appellant's words in defence evidence were, but an attempt to avoid the consequences of his own wrongs. Not only he was sorry for what had happened to the PWl's house, but also, clearly, he admitted to be the perpetrator of the act, but regretful. Therefore, his statement was two-fold: it reflected both an expression of sorrow or remorse, advancing the prosecution's case. It was such a belated confession in disguise. Therefore, his complaint is, but an afterthought, in consonant with the long settled legal principle that an accused who confesses to a crime, he offers the true and best evidence against himself. This is what we also observed in John Ulirick Shao v. R (Criminal Appeal 151 of 2019) [2022] TZCA 596. Too, this ground of appeal crumbles for being devoid of merit. 12

From all the preceding endeavors, therefore, we find the entire appeal lacking merit. It is hereby dismissed, DATED at MBEYA this 11th day of March, 2026, R. K. MKUYE JUSTICE OF APPEAL 5. M. RUMANYIKA JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL The Judgment delivered this 11th day of March, 2026 in the presence of the Appellant in person, Ms, Imelda Aluko, learned State Attorney representing the respondent/Republic and Ms. Jasmin Kazi, Court Clerk, is hereby certified as a true copy of the original. 13