Emmanuel Boniphace & Another vs Republic (Criminal Appeal No. 929 of 2023) [2026] TZCA 248 (5 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA (CORAM: WAMBALI. J.A.. MAKUNGU J.A. And MGEYEKWA. J.A.^ CRIMINAL APPEAL NO. 929 OF 2023 EMMANUEL BONIPHACE MASHAKA SAMWEL ..... 1 st APPELLANT 2 nd APPELLANT VERSUS THE REPUBLIC RESPONDENT (Appeal from the decision of the High Court of Tanzania at Shinyanga) 22n d Feb. &5th March,2026 WAMBALI, J.A,: The District Court of Maswa (the trial court) convicted Emmanuel Boniphace and Mashaka Samwel, the appellants of the offence of armed robbery contrary to the provisions of section 287A of the Penal Code, Cap 16. The trial court was fully convinced that the appellants had on 22n d May, 2020 at night time in Sila Village within Maswa District in Simiyu Region, stolen a motorcycle model HAOJUE black in colour with registration No. MC 589 BYQ valued atTZS. 2,400,000.00, the property of Hassan Mponzi and (Massam, J.^ Dated the 10th day of November, 2023 in Criminal Appeal No. 52 of 2023 JUDGMENT OF THE COURT

immediately before or after such stealing did threaten the said Hassan Mponzi with bush knife in order to obtain and retain the stolen property. Subsequently, the appellants were sentenced to thirty years imprisonment. The substance of the prosecution case was premised on the evidence of two witnesses; Solo Salyungi (PW1) and Hassan bin Efraim Mponzi (PW2), the victim. The witnesses also tendered a motorcycle, a letter for handing over, the cautioned statements of the first and second appellants and the motorcycle registration card, which were admitted in evidence as exhibits PI, P2, P3, P4 and P5 respectively. PW1 testified that upon the arrest of the appellants on 27th May, 2021 in connection of the offence. That he interrogated the appellants and handed them over to the police. On the other hand, PW2 testified that he was invaded by the appellants on 22n d May, 2021 at about 00:30 hours to 1.00 hours and that they were armed with bush knife but managed to escape with the motorcycle. PW2 testified further that he managed to identify the appellants through the aid of electric light at the scene of crime as he was only five meters from them. The appellants denied the allegation. The first appellant who testified as DW1 stated that he was arrested for unknown offence but was surprised

to be charged with the offence of armed robbery. DW1 stated that he did not reside in the same village as the victim and that he only visited the village for burial ceremony. The second appellant (DW2), testified that being a businessman who purchased sunflower, he engaged the first appellant who was a motorcycle rider to collect his sunflower he bought in the village. Therefore, on the date he was arrested, he was with the first appellant at the centre of the village while making follow up of the collection of the sunflower he had purchased. Nevertheless, as intimated above, the appellants' defences were held by the trial court to have not casted any doubt to the prosecution case. Consequently, the appellants were convicted and sentenced as intimated above. The appellants' attempt to challenge the trial court's findings, the convictions and the sentences was in vain as the High Court dismissed their appeal, that is, Criminal Appeal No. 52 of 2023, hence this second appeal to the Court. The appellants' dissatisfaction with the decision of the High Court is vividly expressed through the joint memorandum of appeal comprising four grounds of appeal. However, at the hearing of the appeal before us, it turned out that the major ground for determination is their

complaint in the fourth ground of appeal that the prosecution case was not proved to the hilt contrary to the concurrent findings by the two lower courts. Essentially, the appellants who appeared in person at the hearing, urged the Court to consider their complaints in the raised grounds and allow the appeal, on the contention that the first appellate court wrongly confirmed the trial court's finding that they were guilty while it is against the weight of the evidence on the record. On the adversary side, Mr. Anisius Kainunura, the learned Principal State Attorney who appeared for the respondent Republic readily informed the Court that he supported the appeal of the appellants. However, his support was premised on the argument that there is variance between the charge and the evidence on the record, rendering the prosecution case to have not been proved beyond reasonable doubt. Mr. Kainunura submitted that, while the charge indicated that the offence of armed robbery was committed by the appellants on 22n d May, 2020, the evidence of PW2, the victim, shows that it was on 22n d May, 2021. That even during cross examination by the first appellant, PW2 maintained the same date. He added that on the other hand, PW1, the

Village Executive Officer who also allegedly interrogated the appellants in his office, testified that the incident occurred on 27th May, 2021. In this regard, the learned Principal State Attorney argued that as the evidence of the prosecution on the date of the incident greatly varied with the allegation in the particulars of the charge, the prosecution case was rendered unproved as the charge is the foundation of the trial. In support of his stance, he made reference to the decision in Issa Mwanjiku @ White v. The Republic, (Criminal Appeal No. 175 of 2018) [2020] TZCA 1801 (6 October 2020, TANZLII). The learned Principal State Attorney argued further that, the variance between the charge and the evidence on the record could only had been cured by an amendment of charge, in terms of section 251 (1) [then s. 234 (1)] of the Criminal Procedure Act, Cap 20 (the CPA). Nevertheless, he stated that until the trial was concluded, no amendment was made. He therefore submitted that the failure to cause an amendment to the charge left the case against the appellants unproved due to the variance. This is because, he stated, the two witnesses (PW1 and PW2) did not prove that the appellants committed the offence on 22n d May, 2020 rather on 22n d May, 2021 and 27th May, 2021 respectively.

Stressing on the importance of amending the charge to resolve the variance, Mr. Kainunura made reference to Halid Hussein Lwambano v. The Republic (Criminal Appeal No. 473 of 2016) [2019] TZCA 96 (14 May 2019, TANZLII), in which the Court made further reference to the decision in Abel Masikiti v. The Republic (Criminal Appeal No. 24 of 2015) [2015] TZCA 8 (21 August 2015, TANZLII). It is unfortunate, Mr. Kainunura argued, that the variance between the charge and the evidence on the record escaped the attention of both the trial and first appellate courts. In the end, the learned Principal State Attorney urged the Court to allow the appeal and acquit the appellants as the prosecution case was not proved beyond reasonable doubt. In rejoinder, the appellants respectively urged the Court to allow the appeal as submitted by the learned Principal State Attorney and set them free on the contention that the prosecution case was not proved beyond reasonable doubt. Having heard the parties' concurrent submissions on the fate of the appeal before us and carefully perused the record of appeal, we entirely agree that the charges against the appellants were not proved beyond

reasonable doubt because of the variance between the charge and the evidence on the record. It is apparent that the evidence of the prosecution on the record sharply varied with the allegation in the charge with regard to the date of commission of the offence. While PW1 and PW2 not only differed on the specific date, that is 27th and 22n d respectively, both testified that the incident occurred in May 2021 contrary to the charge which alluded to 22n d May, 2020. More importantly, even the relevant exhibits, the cautioned statements, allegedly recorded by PW1, indicate that the incident occurred on 27th May, 2021 and not on 2n d May, 2020 as laid in the charge. This escalated the variance between the charge and the evidence on the record. Besides, there is no any other evidence on the record supporting the fact that the incident of armed robbery occurred on 20th May, 2020 as alleged in the charge. We further note that though the charge indicates the person who was invaded, robbed and threatened with a bush knife on the material date is Hassan Mponzi, PW2 who testified as the victim is known as Hassan bin Efraim Mponzi. Therefore, it is known whether Hassan Mponzi is the same as Hassan bin Efraim Mponzi who testified at the trial as the record of appeal is silent on the matter. Be that as it may, the noted variance, as

correctly submitted by the learned Principal State Attorney, rendered the charge unproved. For this see among other decisions of the Court Issa Mwanjiku @ White v. The Republic (supra). On the other hand, we entirely agree that though the law, under section 251 (1) of the CPA provides for an amendment of the charge as a remedy to the variance between the charge and he evidence on the record, it is unfortunate that in the case at hand, no such action was taken either upon application by the prosecution or the trial court as required by law. Thus, failure to cause an amendment to the charge left the prosecution case unproved. We wish, at this juncture, to reiterate what was stated by the Court in Abel Masikiti v. The Republic (supra) thus: "If there is any variance or uncertainty in the dates; then the charge must be amended in terms of section 234 of the CPA. If this is not done, the preferred charge wiii remain unproved and the accused shall be entitled to an acquittal" Similarly, in the present appeal, as the amendment to the charge was not done in accordance with the law, as intimated above, the appellants are entitled to acquittal. It follows that the two courts below wrongly found that the case against the appellants was proved beyond reasonable doubt despite the noted variances between the charge and the evidence on the record. 8

In the circumstances, we allow the sole ground of appeal and find the appeal with merit. Consequently, we quash the convictions and set aside the sentence meted on the appellants. Ultimately, we order the immediate release of the appellants from custody unless their incarceration is for other lawful causes. DATED at SHINYANGA this 4th day of March, 2026. F. L. K. WAMBALI JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL Judgment delivered this 5th day of March, 2026 in the presence of Appellant in person, Mr. Louis Boniface, learned State Attorney for the respondent /Republic, via Virtual Court and Mr. Elias Nkwabi, Court Clerk; is hereby certified as a true copy of the original. 9