Emmanuel Mbuga vs Republic (Criminal Appeal No. 258 of 2024) [2026] TZCA 256 (4 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: LEVIRA. J.A.. MDEMU, J.A. And ISSA. J. A.^ CRIMINAL APPEAL NO. 258 OF 2024 EMMANUEL MBUGA .............. ............................................................ APPELLANT VERSUS THE REPUBLIC ................................................................................ RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Geita) (Kilekamaienqa, J.) Dated the 17th day of March, 2023 in Criminal Sessions Case No. 05 of 2021^ JUDGMENT OF THE COURT 16th February & 4th March, 2026 MDEMU, J.A.: The appellant and Erasto Simon @ Mahonde, who is not a party to this appeal, were jointly and together arraigned before the High Court of Tanzania, sitting at Geita for the murder of Simon Ndege. It is in the particulars of the offence that, the duo executed the said murder in the night of 5th October, 2019 at Mgusu Village in Geita District. On the incident date, the deceased, Yanga Ndege Rwabukoba (PW2) and Henerco Thobias were at home, in Manga Street Nyakabale Village within Mgusu Ward, sleeping. All of a sudden, the front door was pushed using a big stone and the attackers who were strangers to PW2, and armed with iron bar and "sululu," gained access to the room. They i also had one torch with no bright light in comparison with the two torches PW2 and those present in the bedroom had. The attackers had their faces not masked. The attacker who had an iron bar, did hit the deceased, so did the one who was armed with "sululu" also hit the deceased on the head and chest. The deceased died on the spot. After the accomplishment of that mission, the attackers disappeared from the scene, but locked the door from outside. PW2 then raised an alarm alerting villagers, one of them being the village chairperson. The latter informed the police who went to the crime scene that night accompanied by Stella Martin (PW7) who conducted postmortem examination. Her report, which was tendered as exhibit P5, registered severe hemorrhage to be the cause of death. On 13th November, 2019, the appellant and one Shija Kulwa were arrested. This followed the holding of identification parade by Inspector James Mahanya (PW3) on 14th November, 2019. The two identifying witnesses, that is Yanga Ndege (PW2) and Henerco Thobias, identified one Kulwa Shija and the appellant herein as shown in the two identification parade registers admitted as exhibits PI and P2, respectively. This was the prosecution case. Initially, the collected prosecution evidence involved three suspects. Before commencement of trial, Shija Kulwa died. The trial therefore 2 commenced against the appellant and Erasto Simon @ Mahonde. They all denied to murder the deceased. However, to the conclusion of trial, the prosecution case against Erasto Simon @ Mahonde, who was the first accused person, was unproven and he was acquitted accordingly. The appellant was found guilty, convicted and sentenced to suffer death by hanging. He is now before the Court challenging the said conviction and sentence on the following grounds of appeal: 1. That, the identification parade register (exhibit P I) was tendered and received in evidence contrary to PGO 232 and hence prejudiced the appellant resulting into a wrong decision by the tria l court. 2. That, the visual identification evidence by PW2 one Yanga Ndege Rwabukoba was not w atertight and incredible resulting into a wrong conviction o f the appellant. 3. That, as a whole, the case against the appellant was not proved beyond reasonable doubt At the hearing of the appeal, the appellant had the services of Mr. Cosmas Tuthuru, learned Advocate whereas the respondent Republic was represented by Mr. Robert Magige, learned Senior State Attorney. This was on 16th February, 2026. Mr. Tuthuru commenced by arguing that, the two identification parades had some deficiencies for violating PGO 232 paragraph "S" for failure to indicate if the identifying witness was asked a question on how 3 he identified the suspect. He cited to us the case of Elias Mtaju Torokoko v. Republic, Criminal Appeal No. 149 of 2012 (unreported) that, failure to adhere to such mandatory conditions, makes the identification parade evidence to carry little probative value. Mr. Tuthuru also attacked the two identification parades for contravening PGO 232 "N" which requires the personnel in the parade to be different in case two or more identification parades are conducted. In this, he urged us to consider our decision in Kanisius Mwita Marwa v. Republic, Criminal Appeal No. 306 of 2013 (unreported) in that regard. Arguing grounds 2 and 3 together, Mr. Tuthuru submitted that, the evidence on visual identification was not watertight to ground conviction. He stated that, since the offence occurred in the night and the assailants were strangers to PW2, the witness did not describe how he was able to identify the appellant through the aid of torch lights directing to each other. Equally, the intensity of such torch lights was not described as to eliminate the possibility of mistaken identity. A refence was made to the Court's decisions in Ndaro Sumuni Mabuse @Amiri Ronaldo &Two Others v. Republic (Criminal Appeal No. 117 of 2023) [2023] TZCA 17761 (18 October 2023;TanzLII) and Faustine Matle Pihiro @ Amii Matle (Criminal Appeal No. 155 of 2023) [2025] TZCA 1147 (17 October 2025;TanzLII), persuading us to disregard the evidence on visual identification by PW2 for being weak. Mr. Tuthuru finally commented that, if at all there was any meaningful evidence that the appellant and the then first accused person were properly identified as found by the trial court at page 198 of the record of appeal, then there was no reason for acquitting that accused person. In all therefore, he concluded, the appellant was not identified to be the murderer, thus urged us to allow the appeal. The appeal was resisted by Mr. Magige. He submitted only in the third ground of appeal arguing that, the prosecution case was proved beyond reasonable doubt. He argued further that, given the small size of the room; bright light from two torches which PW2 and the other roommate had as compared to light from one torch which was not bright and the 15 minutes spent for observation, eliminate the possibility of mistaken identity. In his argument therefore, the benchmarks stated in the case of Waziri Amani v. Republic [1980] T.L.R. 250, have been dully met. Mr. Magige submitted further that, PW2 identified the appellant properly at the scene of crime, the reason why he remembered and ultimately identified the appellant at the identification parade. To the learned Senior State Attorney, identifying a suspect in the identification 5 parade, it all means that, the witness properly identified the suspect at the crime scene. He argued that this was the case to PW2 who identified the appellant at the crime scene and later, made such similar identification in the identification parade. He did not buy in the argument that the two holden identification parades suffers from procedural irregularities because in them, the appellant signed the identification parade registers (exhibits PI & P2). As to acquittal of the then first accused person, his argument was that, the said accused person was not the one who was identified as submitted by Mr. Tuthuru, but rather, his acquittal was on account that, the only evidence implicating him was the cautioned statement of the appellant. Mr. Magige concluded that, the evidence of visual identification by PW2 and the subsequent identification parades established beyond reasonable doubt that, the appellant was responsible for the murder of the deceased. He implored the Court to hold so and dismiss the appeal. That was the counsel's submission for and against the conviction of murder in respect of the appellant. One thing in common between the counsel for the parties is that, the only evidence connecting the appellant with the murder of Simon Ndege is the evidence of visual identification of a single witness. He is Yanga Ndege (PW2), the deceased's brother who was present on that material date and was able to identify the appellant 6 and one Shija Kulwa by their faces through the aid of torch lights. He described that light to be bright (enough lig h t as used by the witness). As was believed by the learned Senior State Attorney, this evidence was trusted by the trial court and after considering both the prosecution and the evidence of the appellant, the learned trial Judge finally, made the following remarks which to us seem is the ratio decidendi. It isatpage 204 of the record of appeal which goes as follows: "7/7 conclusion/ apart from the cautioned statem ents o f the accused persons, I fin d no strong evidence to lin k the first accused with the m urder o f the deceased. On the other hand, there is strong evidence against the second accused. PW2 spotted him during the attack. He did not know him before apart from m arking his face and appearance during the incident One month iater the second accused was arrested; PW2 correctly identified the two attackers during the parade and one o f them was the second accused. PW2 being the only eye witness to the m urder o f the deceased, was a credible witness and his identification was beyond questions." In essence, reading the excerpt above, we deduce the following: first, the case rests purely on the evidence of visual identification to a stranger. Second, PW2 is the only eye witness. Third, credibility of evidence of visual identification by PW2 is beyond questions. Mr. Tuthuru is worrisome for the conviction to base on the evidence of PW2 on the reasons he submitted in his submission in chief. This, therefore, takes us to the law relating to evidence of visual identification. First of all, in Waziri Amani (supra), the evidence relating to visual identification is the weakest and unreliable one and therefore, courts are cautioned to act on that evidence unless all possibilities of mistaken identity are eliminated. Therefore, in Raymond Francis v. Republic [1994] T.L.R. 103, the Court held that, where determination of a criminal case depends entirely on evidence of identification, conditions favoring that identification is a matter of utmost importance. We, therefore go to the evidence of PW2 which, in the words of the learned trial Judge; was a credible witness and his identification was beyond questions." The questions which we ask is whether the conditions favoring that identification of the appellant by PW2 were favorable. At page 52 of the record of appeal is where that evidence is, and it states that: "On 05/10/2019, I was a t Manga Street ■ Nyakabaie viiiage the Ward o f Mgusu. A t night, I was sleeping with Simon Ndege [and] Henerco Thobias. We were three in the room. We were attacked a t around 1 am. The door was h it with a big stone and the attackers entered into the room. Two people entered into the room. I did not know their names though I m arked their faces. 8 I identified them because, when they broke the door, I lighted m y torch and saw them. The torch was powered with two batteries. The torch had pow erful light. The attackers had an iron bar and the other one had a "sululu" which used for digging trenches. They did not cover their faces, they wore trousers and shirts. The two wore black shirts and trousers. The one who held an iron bar h it the deceased with it. The one who was holding "Sululu" used it to h it the deceased on the head and chest. I was ju st in the room u n til they left. The incident took about 15 minutes. When atta ckin g the deceased, the torches w ere on and I saw them fo r about 10 m inutes. The atta cke rs h ad one torch and we had tw o torches . Their torch how ever, had no enough iig h t than ours . They were ju st one step from me. The room was sm all. The a tta cke rs used the torch to see us w hile we w ere in the room . They used the torch to id e n tify the deceased. The deceased was m y young brother. The attackers le ft and locked the door from outside. Thereafter, I raised an alarm and people gathered, "[emphasis supplied] In the evidence of PW2 as reproduced above, it is not disputed that the attackers were strangers to the identifying witness (PW2). It is equally clear in the record that PW2 used a torch light in that identification, so do the attackers who also had torch light which they also used to identify the deceased. Mr. Tuthuru said, the conditions were horrifying and relying on Ndaro Sumuni Mabuse @Amiri Ronaldo (supra), PW2 did not identify the appellant. We agree with him that in the circumstance where entry to the room was accessed through breaking the door by using a big stone, that alone created a horrifying and terrifying conditions. As demonstrated above, both PW2 and the appellant each shone a torch to each other. We note that, PW2 indicated two torches were in the hands of him and his roommate and they had enough light but the one with the appellant had no enough light. We think this kind of describing aiders of identification like torch is too general. More so, the circumstances where each shone a torch to the other, by all standards, were not favourable, especially in the circumstances of this case where the appellant was a stranger to PW2. In Emmanuel Luka & Two Others v. Republic, Criminal Appeal No. 325 of 2010 (unreported), where the bedroom lamp was used for visual identification, the Court held that there was no mistaken identity because the appellants were well known and familiar to the identifying witness. This is not the case in the matter before us because the appellant was a stranger to PW2. We therefore hold that, the appellant was not identified 10 to be among the attackers who invaded PW2 and the deceased in that material night, which invasion claimed the life of Simon Ndege. We wish to add one thing in the evidence of PW2 regarding where exactly the murder took place. According to him, being the only eye witness, he was straight in his evidence at page 52 of the record of appeal that, the offence was committed at Manga Street in Nyakabale Village. It is provided in his evidence that: "On 05/10/2019\ I was a t Manga Street in Nyakabale village, the Ward o f Mgusu. A t night, I was sleeping with Simon Ndege, Henerco Thobias. We were three in the room. We were attacked around 1 am ." It is clear in the charge that, the murder of Simon Ndege occurred on 5th October, 2019 at Mgusu Village. In the evidence of PW2, Mgusu is a Ward and not a village. The charge therefore is speculative, not specific and the evidence is not in support of it. The consequence is one, that the charge remained unproven. As the appellant was not identified at the crime scene and since the evidence of PW2 is not in support of the charge in respect of the place the offence was committed, the two, in our view, suffices to explain that the charge against the appellant was not proved. For that matter, the ii identification parade holden a month later from when PW2 claimed to have identified the appellant, in our view, was of no added value because of the horrifying, terrifying and unreliable aiders (torch lights) of visual identification which, as we said, the circumstances were not favorable for unmistaken identity. In the light of what we have just demonstrated above, we find merit in the entire appeal, accordingly, it is allowed. The conviction of murder is quashed and the sentence is hereby set aside. The appellant be set at liberty, except if there are other lawful grounds for his continued incarceration. DATED at MWANZA this 4th day of March, 2026. The Judgment delivered this 4th day of March, 2026 in the presence of the Appellant in person, Ms. Jainess Kihwelo, learned State Attorney for the Respondent/Republic and Ms. Gloria Masige, Court Clerk; is hereby M. C. LEVIRA JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL