Tabu Sitta @ Maduhu vs Republic (Criminal Appeal No 399 of 2023) [2026] TZCA 245 (5 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA (CORAM: LILA, J.A.. MAIGE. J.A. And MANSOOR. J.A.1 CRIMINAL APPEAL NO 399 OF 2023 TABU SITTA @ MADUHU .......................................................... APPELLANT VERSUS THE REPUBLIC.................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Shinyanga) (KuHtaJL) dated the 10th day of October, 2022 in Criminal Session Case No. 76 of 2016 JUDGMENT OF THE COURT 16th February & 5th March, 2026 LILA. J.A.: The appellant was charged with murder contrary to sections 196 and 197 of the Penal Code. He allegedly murdered his mother in-law one Mpangi Magembe (the deceased). The charge alleged that the killing occurred on 31/10/2015, at about 02:30 hours at Kidinda Street within Bariadi District, Simiyu Region. He was, at the conclusion of the trial, convicted and sentenced to death by hanging. He is now challenging that decision before the Court. The prosecution's story behind the murder is better told by Holo Ramadhani (PW2), the accused's wife, that she was, together with her mother, the deceased, being suspected to bewitch the appellant so as, upon his death, to inherit his properties. That, the appellant got such belief from the witchdoctor who was treating him. That, all along before the killing, the appellant kept threatening her that he would kill both of them, but one after the other. In an attempt to connect the appellant with the murder, she said, on the fateful night, the appellant did not sleep at home. That she never reported the aforestated threats to the police or anywhere. At the crime scene was Baraka Genge (PW1), then nineteen (19) years' old boy. He presented himself as an eyewitness to the incident. He told the trial court that, he was staying with his two young brothers namely, Lyasero Genge and Makoye Genge, his mother Milu Ramadhani and his grandmother one Mpangi Magembe, the deceased. His father passed away in 2015. The premises had, according to him, two adjacent 2 houses which were ten (10) meters apart, one house used by his mother and the other occupied by the rest. The later house had two rooms, the sitting room and a big bedroom which could accommodate two beds in which they all slept. The main entrance had a door made of iron sheets which was locked by a stopper ("komeo") while the bedroom door had no door. Explaining on how the incident occurred PW1, the star witness, stated that, while they were asleep, the door was broken into and two people stormed into the house and, with the aid of solar light which illuminated well the room, he managed to see those people who had lighted torches at a distance of three (3) meters from where he was and identified them to be the husband of his elder mother namely, Tabu s/o Sitta (the appellant) and his young brother, Bunda s/o Sita. That, he knew them since long before as he used to see them at one Salunga's residence when they visited their young mother (PW2). That, while entering the house, the duo ordered them to put off the solar light and remain silent lest they would be killed, which order they heeded to. That, thereafter, the duo proceeded to cut the deceased with bush knives ("pangas") on her left part of her neck, a situation that created 3 shock and fear on their part of being also cut. That, the incident took about ten (10) minutes after which, the two persons left. He further said that, they went to inform their mother in another house naming the two persons to her as suspects. On her part, their mother, who did not testify, is said by PW1 to have named one Mkirya as a person whom she saw outside the house after hearing the commotion. Lastly, PW1 said they informed PW2 who was living with the appellant at Salunda Area in Bariadi District who arrived at the scene at about 09:00hours. Such story was confirmed by PW2 in her sworn evidence on the cause of the killing as summarized above. A police man H. 8296 PC Revocatus (PW3), on 27/11/2015, took the appellant to Ms. Kezia Manyama (PW 4), a Primary Court Magistrate stationed at Somanda Primary Court and a Justice of the Peace, who recorded the appellant's extra-judicial statement (exhibit P3). She said that, she complied with the Chief Justice's Guidelines (CJ's Guidelines) but its admission as exhibit was unsuccessfully objected to on the same reason. A/Inspector Vedastus (PW5) participated in arresting the appellant in Bunamala Village on 27/11/2015 at 10:00hours at his mother's residence and took him to Bariadi Police Station where they arrived at ll:00hrs. He recorded his cautioned statement beginning at ll:15hr. In his statement, PW5 claimed that the appellant told him that, he got sick and went to a witch doctor one Yunde Digilu at Girigi Village who told him that he was being bewitched by the family of PW2 so that they could inherit his properties. That, the appellant believed what he was told by the witchdoctor and planned to kill members of that family with the assistance of his relatives namely Buruda Sita and Muinula Nkinga, which mission he executed on 31/10/2015 at night time. The admissibility of the said statement was, however, objected for being not freely and voluntarily taken because the appellant's mental status was doubtful. Following the aforestated objection, the trial court, in its ruling on the objection, at page 71 of the record of appeal, ordered the appellant's mental status be medically examined and the report thereof be availed to the court in terms of section 216(3) and 216(4) of the Criminal Procedure Act (the CPA), respectively, and the trial proceedings were thereby adjourned. Trial resumed on 29/9/2022 after the report dated 27/1/2022 was availed to the trial court which revealed that the appellant was of sound mind. Still, the admission of the appellant's cautioned statement met another snag as the defence side objected it for not being signed on each page and that, as the appellant did not confess before the police, he could not have made such statement. The objections were overruled in the ruling by the learned trial judge after a trial within trial was conducted. The cautioned statement was therefore admitted as exhibit P4. That marked the closure of the prosecution case. Basically, the appellant, in his sworn defence, distanced himself from the commission of the offence. He challenged the prosecution case through three different angles. He first, directed his arsenals against the allegation that the deceased died, stating that the doctor who conducted the autopsy did not testify denying him the right to cross- examine him on the cause of death, Second; he did not make the cautioned statement but was tortured by PW5 to confess and denied the signature thereon, three; he raised the defence of alibi that on the 6 fateful date (31/10/2015), he was not at the scene of crime but was at his residence at Sima Area in Bariadi within Simiyu Region, four; the torches alleged to have been carried by the bandits were not produced in court and, lastly, that the policeman who drew the sketch map did not testify. In his judgment, the learned trial Judge,raised three issues to guide him in his deliberation that: "1. Whether the victim met unnatural death (if yes), 2. Whether the accused person is responsible for the death o f the victim (if yes), 3. whether the accused person , withintention (malice aforethought) killed the victim ." Relying on the Postmortem Examination Report (PMR) which was admitted without objection during preliminary hearing as exhibit PI and which revealed that the cut parts of the deceased's body were vulnerable ones, the trial Judge was satisfied that the deceased met an unnatural death. Moving forward, the trial Judge held that the evidence of PW1, appellant's cautioned statement and circumstantial evidence as narrated by PW2, sufficiently established the appellant's liability hence answered the second issue positively. He, at the same time, dismissed the defence of alibi raised by the appellant for being belatedly raised and failure to supply particulars in terms of section 194(6) of the CPA. For that reason, he accorded such defence no weight holding it to be an afterthought. He was inclined to agree with PW1 that he positively identified the appellant at the crime scene holding that the principles enunciated in the case of Waziri Amani vs Republic [1980] TLR 250 were met. He held that PW1 was able to tell the trial court that he knew the appellant before the incident, he told the size of the room, existence of solar light, the distance of three meters at which he looked at the appellant and that he observed the incident which lasted for ten (10) minutes. The learned trial Judge also found PW1 as being a credible witness for being able to name the appellant as the person who invaded their house promptly citing the Courts decision in Marwa Wangit Mwita and Another vs Republic, Criminal Appeal No. 6 of 1995 (unreported). He also held that the confessional statements were made freely and 8 voluntarily, citing the case of Selemani Hassan vs Republic, Criminal Appeal No. 364 of 2008 (unreported) to bolster his finding. The more so, he held that the extra-judicial statement which was not objected when being admitted, was also freely recorded and the circumstances leading to the killing as explained by PW2, pointed at the appellant as the responsible person. Gauging from the weapon used to be a "panga" and the cut wounds being found on the head, chest and the left shoulder, the learned trial Judge was satisfied that the appellant formed an intention to cause grievous harm hence an intention to kill (malice aforethought) in terms of section 200 of the Penal Code. Ultimately, the appellant was convicted and sentenced as explained earlier. To demonstrate his grievances against the findings of the trial court, the appellant lodged a three-point memorandum of appeal. The complaints, as articulated in the memorandum of appeal, are: 1. That the trial court erred in relying on the caution statement (Exhibit P4), which was defective under section 58(4) and (5) o f 9 the Criminal Procedure Act [Cap. 20 R.E. 2002] (hereinafter "the CPA "). 2. That Exhibit P3 (the extra-judicial statement) was defective for not being signed by the Appellant. 3. That the trial court erred in law by convicting the Appellant based on prosecution evidence that was contrary to section 210(l)(a) of the CPA [Cap. 20 R.E. 2002, now R.E. 2022]. At the hearing of the appeal before the Court, Ms. Gloria Lucius Ikanda, learned advocate, appeared for the appellant whereas, Ms. Sophia Fidelis Mgassa and Ms. Nancy Medard Mushumbusi, both learned Senior State Attorneys, represented the respondent Republic. Ms. Ikanda prefaced her submission with a prayer to abandon all the grounds of appeal on record which were lodged by the appellant. She then, prayed to be allowed to argue a new and sole ground coached thus: "The learned trial judge erred in law and fact to rely on the evidence by PW1, PW2 and exhibit P3 to convict the appellant ." 10 Ms. Mgassa, who took the floor for the respondent, had no qualms with both prayers and the Court granted both prayers. Addressing the Court on the sole ground of appeal, Ms. Ikanda's arguments were two-limbed. In the first part, she directed her attack on the oral testimonies of the prosecution witnesses and, in the second part, her attack was directed on the documentary evidence produced by the prosecution witnesses. Beginning with the oral testimonies, she began by pointing out the shortfalls in the identification evidence by PW1. She contended that, in his testimony, PW1 told the trial court that the offence was committed at night and he managed to identify the appellant by use of solar light which illuminated the room and that he knew the appellant prior to the incident. In attacking such evidence, she contended that there was no proof that the solar light emitted sufficient light as claimed by PW1 because the solar was not produced in court for the court to satisfy itself on the extent of light. Further assailing the prosecution evidence by PW1 that the said incident took ten (10) minutes hence he had ample time to observe and 11 positively identify the appellant, she argued that such evidence is unreliable. She reasoned that, PW1 earlier told the trial court that the attackers, when entering into the house, they first ordered them to put off the solar light hence the offence was committed in darkness after the solar light was put off. In the circumstances, observation was made under an unfavourable condition making it difficult to see and properly identify a person, she argued. With regard to the testimony of PW2 who told the trial court that the appellant was not at home in that material night, Ms. Ikanda argued that, even if that was true, the appellant gave an acceptable explanation that he was at his other home at Sima Area in Bariadi in Simiwi Region. In respect of the documentary evidence, Ms. Ikanda, first attacked the Extra Judicial statement (exhibit P3) which she argued was recorded without complying with the Chief Justice's Guidelines. In particular, she raised the Court's attention based on paragraph six (6) which requires the police to carry with him a letter to the Justice of peace from the In charge of the police station or from any police officer to whom an accused person had expressed his willingness to confess. Worse still, 12 she recounted, even the Justice of the Peace (PW4) did not indicate that he received such letter. Arguing further, she asserted that, even PW5 who took the appellant to the Justice of the Peace, did not talk about being given such letter by the police In-charge to take it to the Justice of the Peace. Following that procedural infraction, she urged the Court to disregard the extra-judicial statement by the appellant for want of proof that the appellant volunteered to give such a confessional statement. Her further attack on exhibit P3 was that, it does not show at what time and date the appellant was arrested which was in contravention of the O's Guideline paragraph seven (7) which requires the Justice of the Peace to seek such information from the accused. She submitted that the answer reflected on the statement that "NILIKAMATIWA SALUNDA BARIADI NA NIPO LOCK-UP" is not only not relevant, but also does not tell the time and date of arrest as required by the guidelines. She accordingly urged the Court to expunged it from the record of appeal. She was of the view that once the Court is satisfied that the prosecution case is tainted with such enumerated procedural flaws which are serious, then the appellant's appeal should 13 be allowed, his conviction be quashed, sentence be set aside and the appellant to be set at liberty. Ms. Mgassa resisted the appeal. Responding in respect of sufficiency of light in the room, she referred the Court to PWl's testimony at pages 33 line 7 onwards which, she said, provided for the answer that the light was enough to enable him make unmistaken identification. She submitted that, the size of the room is explained and he told the trial court that he knew the appellant prior to the incident. That, he was able to see the appellant when entering the house and before they were ordered to put off the solar light and he was aided by the torches' lights which were lighted by the invaders. However, on being prompted by the Court, she admitted that no description and attire of the invaders were explained by PW1 but she insisted that PW1 positively identified the appellant, a person he knew well before the incident as being his uncle, the husband of his aunt. In opposing Ms. Ikanda's arguments in respect of PW2's evidence that the appellant was not present at home on the fateful night, Ms. Mgassa contended that, by nature, the appellant had raised a defence 14 of alibi by saying he was at his residence at Sima, Bariadi in Simiwi Region. Such a defence, she contended, was raised belatedly and deserved no consideration by the trial court because no particulars were provided to the prosecution and to the court before closure of prosecution case. However, she conceded, that the trial court had a duty to discuss it and at the end and at its discretion, either accord it weight or not. She also appreciated the legal stance that an accused person has no duty to prove his alibi. Aware of such position, she admitted that the learned Judge at page 142 of the record shifted the burden of proof on the accused (now appellant) to prove his defence of alibi which was not proper. Turning to documentary evidence, Ms. Mgassa began her response on the attack directed on the extra-judicial statement. She, at first, conceded that the Letter by the police officer to the Justice of Peace is not there in the record of appeal. But she was adamant that, it was a mere procedural flaw which did not prejudice the appellant. While agreeing that the purpose of the letter is to inform the Justice of the Peace that the appellant wished to confess, yet she argued that its absence is not fatal. According to her, that was done orally as reflected 15 in paragraph 2 of the extra-judicial statement at page 111 where the Justice of the Peace stated that "Nimearifiwa na askari wa usa/ama H.8296 PC REVOCATUS kwamba mahabusu Tabu s/o Sita anakabiliwa na shtaka la mauaji na kwamba anataka Ushahidi wake unakiliwe au uandikwe". (literally translated to be that "/ am informed by a Police Officer No. H. 8296 PC Revocatus that the appellant is being accused of murder and wishes his evidence be recorded"). She was of the firm view that, that was enough compliance with para 2 of the CJ's Guidelines hence there was no prejudice occasioned on the appellant. Despite admitting that there was failure by the Justice of the Peace to indicate the time and date of the appellant's arrest in paragraph seven (7), Ms. Mgassa did not find it to be a big issue. It did not prejudice the appellant, she argued. In all, she insisted that the CJ' Guidelines were complied with in recording the extra-judicial statement. In the end she urged the Court to dismiss the appeal. There were no rejoinder submissions by Ms. Ikanda as she reiterated her submissions in-chief. 16 From the counsel of the parties' divergent submissions in respect of the appeal, it seems clear to us that the central issues for our consideration is, whether the trial learned Judge correctly dealt with one; the oral identification evidence by PW1 and PW2 and two; the documentary evidence to ground the appellant's conviction. The appellant's cautioned statement (exhibit P4) had no place before the learned trial Judge and did not ground the conviction and no appeal by the respondent lied against it. In our deliberation of the issue before us, we propose, for convenience sake to first, consider the documentary evidence in grounding the appellant's conviction. The issue here is the reliability of exhibit P3. As demonstrated above, the attack against it is two-fold. That it lacks authenticity that the appellant made it involuntarily due to absence of the letter to the Justice of the Peace from the In-charge of the police station where the appellant was detained. Another attack was failure to indicate the time and date the appellant was arrested. It is settled law that, it is mandatory to comply with the Chief Justice's Instructions to the Justice of Peace published in a booklet titled 17 "A Guide for Justice of Peace" when recording extra judicial statements. In Sospeter Nyanza & Another vs Republic (Criminal Appeal 289 of 2018) [2022] TZCA 281 (13 May 2022), the Court cited the case of Mpemba Mashenene vs Republic, Criminal Appeal No. 557 of 2015 (unreported) where the Court dealing with an akin complaint, emphasized the need to comply with the Chief Justice Instructions to the Justice of Peace published in a booklet titled "A Guide for Justice of Peace" when recording extra judicial statements. In that decision, the Court outlined the said instructions which the Justice of the Peace ought to observe to be: " (i) The time and date o f his arrest; (ii) The place he was arrested; (Hi) The place he slept before the date he was brought to him; (iv) Whether any person by threat or promise or violence he has persuaded him to give the statement; (v) Whether he really wishes to make statement on his own free will; 18 (vi) That if he makes a statement, the same may be used as evidence against him. In our earlier decision of Japhet Thadei Msigwa v. Republic, Criminal Appeal No. 367 of 2008 (unreported)) the Court insisted that: "So, when Justices of the Peace are recording confessions of persons in the custody o f the police, they must follow the Chief Justice's Instructions to the letter. The section is couched in mandatory terms. Before the Justice of the Peace records the confession o f such person, he must make sure that aii eight steps enumerated therein are observed." The Court went further to state the significance of cumulative compliance with all the eight instructions and the consequences of non- compliance thus: "We think the need to observe the Chief Justice's Instructions are two-fold. One, if the suspect decided to give such statement, he should be aware o f the implications involved. Two, it will enable the trial Court to know the surrounding circumstances under which the statement was 19 taken and decide whether or not it was given voluntary. Non-compliance will normally render the statement not to have been taken voluntarily, "(emphasis added) An extra-judicial statement is a serious document for it may, on its own, if established to have been taken in compliance with the CJ's Guidelines, safely ground a conviction it being a confession by an accused person. (See Mashimba Dotto @ Lukubanija vs Republic, Criminal Appeal No. 317 of 2013 (unreported). It must therefore be taken in strict compliance with the guidelines which ensures voluntariness in recording it. It was not in dispute that the Justice of the Peace, in the instant case, did not comply with two instructions. It is, in the first place, evident that it is not among the requirements that a Police Officer taking an accused to the Justice of Peace to carry with him a letter to the Justice of the Peace from the Police Station In-charge or any Police Officer whom an accused has expressed his wish to confess. Much as it is a good practice, yet its absence is not fatal particularly where, as it is in this case, the Justice of the Peace indicated in paragraph 2 in the 20 statement that " Nimearifiwa na askari wa usalama H.8296 PC REVOCA TUS kwamba mahabusuTabu s/o Sita anakabiliwa na shtaka la mauaji na kwamba anataka Ushahidi wake unakiliwe au uandikwe" We, in the circumstances, agree with the learned Senior State Attorney that the absence of the letter had no serious effect to the appellant. Without being detained so much, it is obvious that the Justice of the Peace failed to indicate the time and date of arrest of the appellant which was a violation of guideline number (1) and in view of the decision in the case of Japhet Thadei Msigwa vs Republic (supra), it was fatal. In paragraph 7, this is what is reflected in the record: "7. Mahabusu ameulizwa maswa/i yafuatayo na majibu yake yamenakiliwa kama ifuatavyo:- Swali: Ni siku gani na ni wakati gani ulipokamatwa na askari wa usalama? Jibu: "NILIKAMATWA SALUNDA - BARIADI NA NIPO LOCK-UP" Obvious as it is, the recorded response by the appellant as reflected above was irrelevant and exhibits lack of seriousness on the 21 part of the magistrate who recorded the statement. Actually, paragraph 7 is intended to provide a vital information in the extra-judicial statement under the CJ's guideline or instruction (ii) above. We need not re-overemphasize the need for justices of the peace assuming the responsibility to record extra-judicial statements to ensure they record them precisely. Having found as above, without hesitation, we do not share the view by the learned Senior State Attorney. Instead, we find the argument by Ms. Ikanda valid and therefore the extra-judicial statement ought not to have been relied on in convicting the appellant. We now turn to the first issue. The trial Judge relied also on the oral visual identification by PW1 who was supported by PW2 to ground the appellant's conviction. Ms. Mgassa was firm that the evidence on record supports her view that the evidence of identification of the appellant was sufficient. It was not disputed that the incident took place at about 02:000hours. It was night time. Caution on the manner of handling visual identification evidence in respect of an offence committed at night was given by the Court in the case of Raymond Francis vs R [1994] T.L.R. 100 cited in the case of Karim Ramadhani and Two Others vs Republic, Criminal Appeal 22 No. 113 of 2009 that "/'f is elementary that in a criminal case whose determination depends essentially on identification, evidence on conditions favouring a correct identification is o f utmost importance. The same caution was restated in Philipo Rukandiza @ Kichwembogo vs Republic, Criminal appeal No. 215 of 1994 (unreported) that: " The evidence in every case where visual identification is what is relied on must be subjected to scrutinydue regard being paid to all the prevailing conditions so as to see if, in all the circumstances, there was really sure opportunity and convincing ability to identify the person correctly and that every reasonable possibility o f error has been dispelled." To lend assurance to the witnesses' testimony on visual identification which is presumed to be of the weakest kind unless all possibilities of mistaken identification are eliminated and the evidence is itself water tight, in Waziri Amani vs R [1980] T.L.R 250 factors to be considered and which the witness is required to mention are listed. The witness must state, all aids to unmistaken identification like 23 proximity (distance) to the person being identified, the source of light, its intensity, the length of time the person identified was within view and also whether the person is familiar to the person making the identification. These factors are not exhaustive for the need to point out description of the person identified was taken to be an essential factor in Muhidini Mohamed Lila @ Emolo and Three Others vs Republic, Criminal Appeal No. 443 of 2015 (unreported) citing with approval the case of R vs Mohamed Alui [1942] EACA 72 which was also cited in Yohana Chibwingu vs Republic, Criminal Appeal No. 117 of 2015 (unreported), where it was observed that: "...that in every case in which there is a question as to identity o f the accused, the fact o f there having been given a description are matters o f highest importance o f which evidence ought always to be given first by o f all, o f course by the person who gave the description, or purports to identify the accused and then by the person to whom the description was given." We have no quarrel with the learned Senior State Attorney that PW1, in his evidence, explained the source of light as being the solar 24 light, the time the incident took to be about ten (10) minutes, the size of the room as being big enough to accommodate two beds and that he made the observation at a distance of three (3) meters. To Ms. Mgassa, these factors stated by PW1 met the test set in Waziri Amani vs R (supra). We shall consider the issue of use of torch and the appellant not being a stranger to the witness a little while in this judgment. We have considered the able submission by Ms. Mgassa, but, with due respect to her, we do not agree with her that such evidence by PW1 was sufficient for two reasons. One; It is obvious from the record that PW1 did not explain the description and/attire the invaders wore, an important factor that would lend assurance of the extent of light. Two; the time PW1 had the invaders under observation, could not, in the circumstances of this case, be ten (10) minutes. The record tells it all. After PW1 had told the trial court that the incident took about ten minutes, he later (at page 33 of the record of appeal) continued to state that: ”While entering they ordered us to shut down our light and we should not shout. We obeyed the order by shutting down our solar lamps and 25 stay silence. They threatened to kill us as well if we shout." According to PW1, it was after shutting down the solar light that the invaders started cutting the deceased on various parts of the body with "pangas" they had carried. It can be deduced from the above excerpt that the time lapse from the time of breaking the door, entering the house and shutting down the solar light was too short as not to enable a person to concentrate and identify an invader. The more so, the situation created panic, havoc and terror making it difficult for one to have a proper observation. This notwithstanding, Ms, Mgassa maintained that PW1 was still able to identify the invaders by use of the torch light the invaders had to which discussion we now turn. We entertain no doubt that, properly applied, light from a torch, may be enough to illuminate a room. However, dentification through flash light from a torch has its shortfalls rendering it unreliable. The court had an occasion to express its view in respect of it in the case of Venance Muba and Another vs Republic, Criminal Appeal No. 425 of 2013 (unreported) where the Court stated that: 26 "With respect, we can not accept such an inconceivable and obvious implausible theory. Under ordinary circumstances, a torch when flashed, enables the person who holds it to see an object or the person who is lit on and not the vice versa. More often than not, the flash o f a torch tends to dazzle the person who is shone at, rather than enable such person to see the person who wilds the torch. Thus, on account o f the foregoing reality, this Court has, on occasion, held that an identification through the aid of a torch which is held and wielded by the alleged culprits is most unreliable . " The truth is, in the instant case, no one witness ever told the trial court how the torch lights was shone. PW1, the only witness on this aspect, did not at any moment tell the trial court on how the culprits who wielded the torches, flashed them. There is, therefore no evidence that they ever flashed the torches on themselves to enable PW1 to see and properly identify anyone. In holding so, we are mindful to the fact that from the time the culprits entered onwards, torch light remained the sole source of light after the solar light were put off. We accordingly 27 hold that the visual identification at the scene of crime by PW1 was not watertight at all to enable identification of the appellant. Once again, Ms. Mgassa related to us that PW1 knew well the appellant prior to the incident making it easy for him not to have mistaken him at the crime scene. The appellant, in his defence did not dispute being familiar to PW1 but denied being at the crime scene on the material date and time. The appellant said he was at another residence at Sima Bariadi. Admittedly, this was a case of identification by recognition. Trite law is that identification by recognition is more satisfactory, more assuring and more reliable than identification of a stranger. [See a Kenya Court of Appeal decision in Chia Thoye v. Republic, Criminal Appeal No. 375 of 2006 (unreported) cited in the case of Athumani Hamisi @ Athumani vs Republic, Criminal Appeal No. 288 of 2009 (unreported)]. This fact notwithstanding, factors for a proper identification stipulated in Waziri Amani vs Republic (supra) apply in equal force for, the Court have occasionally warned of the possibility of there being a mistaken identity even in recognizing familiar persons. In the case of Joseph Michael and Another, Criminal Appeal Nos. 213 and 215 of 2014, the Court citing the case of Said Chally 28 Scania vs Republic, Criminal Appeal No. 89 of 2005 (unreported), held that: "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 occasionally held, even when a witness is purporting to recognize someone whom he knows, as was the case here, mistakes in recognition o f dose relatives and friends are often made." (Emphasis added) Last is the evidence by PW2 that, she went to the crime scene and arrived at about 03:00huors and was told by his brother that PW1 had named the culprits to be the appellant and his young brother Bunda Sita. The learned trial Judge considered such evidence as lending credence on PW2's evidence because he was able name the culprits at the earliest opportunity applying the principle pronounced in the case of Marwa Wangiti and Another vs Republic, Criminal Appeal No. 6of 1995 (unreported). With respect to the learned trial Judge, having ruled out that the circumstances were not favourable for a proper and unmistaken identity, there was nothing to lend such credence. Further 29 to that, PW2 told the trial court that at the time of the incident, the appellant was not at their home but was at Salunda in Bariadi. This witness intended to show the probability of the appellant having been at the crime scene at such material time. With respect, such evidence together with that other evidence that the appellant, on the previous days, had occasionally threatened to kill her and her family for bewitching him so as to inherit his properties upon death, in the absence of clear and cogent evidence placing the appellant at the crime scene, utmost, remains to be mere suspicions. The law on suspicion is settled that, however strong suspicion may be, it cannot ground a valid conviction. In all, therefore, there was no evidence linking the appellant with the murder and had the learned trail Judge given weight to the assessors who, in their respective opinions, returned a unanimous verdict of not guilty, he would have not departed from them. In the end and for the foregoing reasons, we allow the appellant's appeal, quash the appellant's conviction and set aside the sentence. We 30 hereby order his release from prison forthwith if not incarcerated therein for another lawful cause. DATED at SHINYANGA this 5th day of March, 2026. S. A. LILA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL The Judgment delivered this 5th day of March, 2026 in the presence of Ms. Gloria Ikanda, learned counsel for the Appellant, Mr. Leonard Kiwango, learned State Attorney for the respondent/Republic by virtual Court and Mr. Leopord Mabugo, Court Clerk; is hereby certified as a true copy of the original. D. R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL