Emmanuel Kavula Lendaga vs Republic (Criminal Appeal No. 655 of 2024; DC Criminal Appeal No. 75 of 2022) [2026] TZCA 196 (3 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA ( CORAM: GALEBA. J.A.. MASOUD. J.A. And FELESHI, J.A.^ CRIMINAL APPEAL NO. 655 OF 2024 EMMANUEL KAVULA LENDAGA.................................................APPELLANT VERSUS THE REPUBLIC ..................................................... ............. RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Dodoma) (Lonqopa, J J dated the 16th day of November, 2023 in DC Criminal Appeal No. 75 of 2022 JUDGMENT OF THE COURT 11th February & 3rd March, 2026 GALEBA. J.A.: In this appeal, the appellant Emmanuel Kavula Lendaga was charged and tried before the District Court of Bahi at Bahi (the trial court) in Criminal Case No. 70 of 2021. The charge was on two counts of unnatural offence contrary to section 154 (1) (a) and (2) of the Penal Code. In that case, it was alleged that on 17th October, 2021 at around 19.00 hours, at Mayamaya Village within Bahi District in Dodoma Region, the appellant had sexual intercourse against the order of nature of a boy aged 9 years. We will refer to this boy as the first victim or PW2 in order to conceal his l identity. It was also alleged that at the same time and place, the appellant committed the same offence against another boy of the same age, whose name we also disguise and refer to him as the second victim or PW4 in this judgment. Throughout the trial, the appellant denied any involvement in the abuse of the victims. However, his defence was denied credit and based on the evidence of 6 prosecution witnesses, he was convicted on both counts and was sentenced to life imprisonment. His first appeal to the High Court of Tanzania at Dodoma (the first appellate court), hit a deadlock, it was dismissed for want of merit. It is this judgment of the first appellate court that the appellant is challenging before us. Initially the appeal had been predicated on a total of 13 grounds of appeal, but at the hearing, the appellant who appeared in person without legal representation prayed to withdraw 10 grounds out of the 13 grounds, thereby retaining only 3 grounds which are grounds 1, 2 and 6. This appeal will therefore be disposed of in the perspective of those 3 retained grounds of appeal, which may be paraphrased as follows: 1. That the first appellate court erred by upholding the trial court's decision which was based on the case which was not proved beyond reasonable doubts. 2 2. That the appellant was not identified as the person who committed the offence. 3. That exhibit P2, the cautioned statement was wrongly relied upon. At the outset Ms. Magreth Robert Fyumagwa, learned State Attorney, who was assisted by Mr. Ahmed Athuman Hatibu, also learned State Attorney, informed the Court that the respondent was supporting the appeal on the above listed grounds of appeal. In elaborating the respondent's position, the learned State Attorney argued grounds 1 and 2 together, and her overriding contention was that there was no cogent evidence on record proving that it was the appellant who committed the alleged offences. It was her take that although the prosecution proved that the victims were sodomized as the first ingredient of the offence of unnatural offence, the second was lacking. There was no clear proof pointing undoubtedly to the appellant as the offender. Firstly, she stated that the victims testified that the offences were committed during the night, but were quiet on whether there was any light that was illuminating the scene of crime or not. Secondly, she contended that, as the appellant was a stranger to the victims, it was necessary that an identification parade be mounted at 3 the instance of the investigator, but none was conducted. Thirdly, the learned State Attorney submitted that even Rajabu Shabani, PW3 who testified that he saw the appellant committing the offence at night and that he used the torchlight to identify him, he did not mention the intensity of the light from the torch and other elements that would suggest sufficiency of the light's brightness. In view of the above, Ms. Fyumagwa concluded that, there was no evidence establishing the second ingredient of unnatural offence, that is to prove that the person who committed the act was none other than the appellant. She therefore moved us to allow the 1s t and 2n d grounds of appeal, nullify the appellants conviction, set aside his sentence of life imprisonment and quash the decision of the first appellate court. In rejoinder, the appellant had nothing useful to say, except to support the position taken by the learned State Attorney. In resolving the two grounds of appeal, the issue is whether there was sufficient identification of the appellant as the perpetrator of the crimes. To do so we will consider the evidence of PW2, PW4 and lastly that of PW3, because, it appears they were treated as eye witnesses by the prosecution. We start with the evidence of PW2 at page 15, where the 4 relevant part, proving the offence on the day mentioned in the charge sheet, the victim stated: "We went to watch television around night hours, it was around 20:00 hours, I was with my feiiow (another victim), we found the accused person (PW2 identify the accused person before the court), the accused person called us, his name is Nayaia or Emmanuel, he then sodomized us . . . " As contended by Ms. Fyumagwa, it is true that although it was night hours, the evidence of this witness does not state whether there was light and if it was there, whether it was bright enough to enable clear sight. The evidence of PW4, another victim is to the following effect: "We went to watch television, I was with my fellow (PW2), on the way we found the accused person, his name is Nayaia or Emmanuel, he called us to the bushes, he undress his clothes, also he undress our clothes, he asked us to lay down on the ground, he came at the back, he then starts to sodomized my fellow and he then did it to me, he forced us to sleep down on the ground, he then inserted his penis in my anus, he then used to give us Tsh. 100/=. One day Rajab saw us in the bushes, I was with the accused and my feiiow, ran away and Rajabu caught me, though my feiiow was already sodomized, I told Rajabu what was going on and Rajabu reported the incidence to our brother . . . " The evidence of this witness is no better. It means if this witness was with PW2 on 17th October, 2021, the day of the offence as per the charge sheet, and they went together to watch television and were sodomised simultaneously, it also means that the time for the offence was also 20:00 hours in the night as was testified by PW2. If that narrative is the case, which we trust it is, then this witness (PW4) ought to have stated how he got to identify the appellant during that night. In fact, other than mentioning the appellant's name to be Nayala or Emmanuel, the witness does not say anything on the identity of the appellant. One point that should not skip one's mind is that, Nayala or Emmanuel, has no identification value of the appellant. The other evidence which would have been of assistance as to the identity of the person who committed the offence, is that of Rajabu Shabani, PW3. The evidence of PW3 is found at page 17 of the record of appeal where he said: "on 17/10/20211 was on the way from the bushes, on the way I saw the person before me, though it was around night hours I [recognized him] ,1 used the iight from the torchf when I [lit] the torch I saw the accused [sodomizing] the second victim [PW4], the other victim was a/so around, when I switch o ff the iight the accused person start to put on his dress, and the victim ran 6 away, I ran after the victims and I [caught] one o f the victims, I was near the crime scene, then I told the brother o f the victim , the victims informed us that the accused person used to sodomized them, the accused was with the victims, they were naked, I am familiar with the accused person." The above quoted PW3's evidence as to how he identified the appellant, is equally questionable. At the beginning he says he applied a torchlight, but does not describe the intensity of the light and even the statement that he was familiar with the accused person is too general and lack basis. It is now settled law in this jurisdiction that, in order to rely on visual identification in circumstances that are not favourable to human visibility, the evidence must be watertight admitting no possibility of mistaken identity. See this Court's decisions, in among many authorities, the case of Luziro Sichone and Another v. R, Criminal Appeal No. 131 of 2010 and Ayubu Kiyanza v. R, Criminal Appeal 76 of 2022 (both unreported). In Chacha Jeremiah Murimi and 3 Others v. R, Criminal Appeal No. 551 of 2015 (unreported), this Court stated that: "Admittedly, evidence o f visual identification is o f the weakest kind, and no court should base a conviction on such evidence unless it is absolutely watertight; and that every possibility o f a mistaken identity has been eliminated. To guard against that possibility the Court has prescribed severai factors to be considered in deciding whether a witness has identified the suspect in question. The most commoniy fronted are: How long did the witness have the accused under observation? At what distance? What was the source and intensity o f the light if it was at night? Was the observation impeded in any way? Had the witness ever seen the accused before? How often? I f only occasionallyhad he any special reason for remembering the accused? What interval has lapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description o f the accused given to the police by the witnesses\ when first seen by them and his actual appearance? Did the witness name or describe the accused to the next person he saw? Did that/those other person/s give evidence to confirm i t " In this case, the evidence of PW2, PW3 and PW4 badly failed to comply with all tests set in Chacha Jeremiah Murimi, (supra), in which case we cannot, with certainty, hold that their evidence in respect of the appellant's identification at the crime scene was at all water tight. Thus, we allow the 1s t and 2n d grounds of appeal and affirm that the case was not proved beyond reasonable doubt. As the foregoing conclusion is in its nature decisive of this appeal, we find no point in discussing the 3r d ground 8 of appeal, which was questioning the trial court's basis for relying on exhibit P2. Finally, we allow the appeal, quash the appellant's conviction and set aside his sentence of life imprisonment. We further order that he be released from prison custody unless his continued incarceration is based on any other lawful cause. DATED at DODOMA, the 3rd day of March, 2026. Judgment delivered virtually, this 3rd day of March, 2026, in the presence of the Appellant in person, Ms. Rose Ishabakaki, learned State Attorney for the Respondent/Republic and Mr. Oscar Msaki, Court Clerk, is Z. N. GALEBA JUSTICE OF APPEAL B. M. MASOUD JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL hereby < D. P. KINYWAFU DEPUTY REGISTRAR COURT OF APPEAL 9