Robert Emmanuel vs Republic (Criminal Appeal No. 740 of 2024) [2026] TZCA 159 (27 February 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: LEVIRA, J.A., MDEMU. J.A., And ISSA. J.A.^ CRIMINAL APPEAL NO. 740 OF 2024 ROBERT EMMANUEL ................................................................ APPELLANT VERSUS THE REPUBLIC................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Robert, J.^ dated the 10th day of October, 2023 in Criminal Appeal No. 89 of 2023 JUDGMENT OF THE COURT 17th & 27th February, 2026 ISSA, J.A.: The propriety of the conviction of the appellant, Robert Emmanuel, of the offence of armed robbery contrary to section 287A of the Penal Code, Cap. 16 and a sentence to serve thirty years imprisonment meted by the District Court of Geita sitting at Geita (the trial court) and which was confirmed by the High Court of Tanzania, Mwanza Registry, on first appeal, are still being challenged before this Court. The conviction and sentence were on account of the appellant being found guilty of the offence of armed robbery by the trial court where the appellant together with five others, who are not in this appeal, were l

arraigned to answer the accusation that, on 28th January, 2022 at Bombambili street within the District and Region of Geita, stole TZS. 90,000.00 from Imelda Sylvester and before or after stealing the money beat her with machete in order to steal and retain the said money. The trial ensued following the appellant's denial of the charge whereby six (6) witnesses featured for the prosecution to prove the charge namely: Imelda Sylvester (PW1), Benjamin Andrea (PW2), F.5257 D/Cpl. Khatib (PW3), G.3404 D/Cpl. Alfred (PW4), F.3614 D/Sgt. Alchard (PW5) and G.853 D/Cpl. Frank (PW6). On the other side, the appellant and five other accused persons were the only defence witnesses. The brief background facts of the case which necessitated institution of this appeal run thus; according to PW1 and PW2, on the fateful date (28th January, 2022), PW1 was at her home in Tambukareli in Geita Region. At noon she called PW2, a three-wheeler driver to take her to Mwatukole market. PW2 arrived at PWl's house at 13.00 hours and they started their journey to the market. On the way at Reni Hotel, PW2 stopped and carried two male passengers who were heading to Uwanja wa Maonyesho. Reaching there, the male passengers asked to be taken further and they led PW2 to a secluded area. One male passenger produced a police identification card which represented him as a police officer. Then they asked PW2 to pull the three-wheeler aside and 2

demanded TZS. 400,000.00 from PW1 and PW2. It then became evident that, the duo were part of the gang of bandits as they called others and three more bandits arrived. To save herself from harm, PW1 surrendered TZS. 90,000.00 for her release, but before she was released, she and PW2 were forced to undress and one bandit took photographs of them. Both PW1 and PW2 reported the incident to the Geita Police Station on the same day. On 17th February, 2022, PW1 and PW2 were called by Geita police and upon reaching Geita Police Station they were asked to participate in the identification parade in order to identify the bandits who were paraded in the identification parade. Both managed to identify one bandit who is the appellant in the instant appeal. The rest of the prosecution witnesses were the police officers. The appellant was arrested after the police got a tip from an informer that he was involved in the armed robbery. PW6 interrogated the appellant on 9th February, 2022 and wrote his cautioned statement which was admitted in evidence as exhibit P4 after a trial within a trial. In the cautioned statement, the appellant confessed to have committed armed robbery and also mentioned his accomplices who were arrested on 11th February, 2022 and jointly charged with the appellant. The five accused persons charged jointly with the appellant were: Mathew Emily @ Mesi (2n d accused 3

person), Mussa Malemi @ Makonya (3r daccused person), Iman Mussa (4th accused person), Thomas Charles @ Mkina (5th accused person) and Athuman Bwire (6th accused person). PW3 recorded cautioned statement of 5th accused person and after trial within trial it was admitted as exhibit PI. PW4 recorded the cautioned statement of 3r d accused person while PW5 recorded the cautioned statement of 6th accused person. PW6 in addition to recording appellant's cautioned statement, also recorded 2n d accused person's cautioned statement. In his defence, the appellant distanced himself from the accusation. At the conclusion of the trial, the trial court found the charge against the appellant has been proved beyond reasonable doubt. It relied on the identification made in the identification parade by PW1 and PW2 and the confession found in the cautioned statement of the appellant. Hence, the appellant was convicted as charged and sentenced to serve thirty (30) years imprisonment while the 2n d to 6th accused persons were acquitted. Displeased with the decision, the appellant unsuccessfully appealed to the High Court (the 1s t appellate court). The 1s t appellate court on page 153 to 154 of the record of appeal expunged the cautioned statement of the appellant (exhibit P4) on the ground that there were irregularities in its admission. Nevertheless, relying on the identification of the appellant

in the identification parade by PW1 and PW2 found the evidence was sufficient to sustain a conviction. Hence, the conviction and sentence were confirmed. Still discontented, the appellant knocked at our door and advanced three grievances touching the following issues:

1. That ; PW1 and PW2 failed to name the appellant after the incident
2. That , they failed to describe appellant's physique, clothes and any unique mark.
3. That, no explanation was given as to why the identification parade register was not tendered.
4. That ; the 1st appellate court erred to act on the appellant's cautioned statement which was expunged.
5. That, the case was not proved beyond reasonable doubt In this appeal, the appellant appeared in person without the advantage of being legally represented by an advocate, whereas the respondent Republic, was represented by Ms. Caroline Mushi, learned Senior State Attorney assisted by Mr. Melchior Hurubano, learned State Attorney. The appellant after adopting his grounds of appeal and written submissions in support of the appeal, opted to rejoin after the respondent Republic has replied to his complaints. For Republic, Ms. Mushi outrightly supported the appeal on the ground of poor visual identification. She submitted that although the

incident took place during day time, PW1 testified that it was the first time to see the appellant and she did not give description of the appellant. She only identified him in court as the identification parade was flawed and lacked evidential value. She bolstered her argument by citing the Court's decision in Edwin Martin v. The Republic [2025] TZCA 714. She concluded that since there was no identification, the prosecution case was not proved to the required standard. She prayed for the appeal to be allowed and the appellant to be set free. The appellant on his part had nothing to add, he implored the Court to set him free. The epitome of the grievances in the instant appeal is centred on the issue of identification of the appellant and whether the prosecution was able to prove its case beyond reasonable doubt. We entirely agree with the learned Senior State Attorney that, the 1s t appellate confirmed the conviction and sentence meted on the appellant based on two pieces of evidence. One, the confession of the appellant contained in the cautioned statement and two, the identification of the appellant done by PW1 and PW2 in the identification parade. This is a second appeal and we are alive to the general practice that a second appellate court would not easily disturb or interfere and undo the concurrent findings of two lower courts unless the two courts completely misapprehended the substance, nature and quality of the 6

evidence resulting in an unfair conviction or where there was misdirection on evidence (see - Salum Mhando v. The Republic [1993] T.L.R. 170, Director of Public Prosecutions v. Jaffari Mfaume Kawawa [1981] T.L.R. 143. Starting with the issue of confession contained in the appellant's cautioned statement, the record of appeal shows that the 1s t appellate court had already expunged it on pages 153 and 154 of the record of appeal. The record speaks thus: "Further to that ; the Appellant challenges the procedural regularity surrounding the admission o f his cautioned statement (Exhibit P4), contending its prejudicial impact While the admission may indeed have been irregular, the trial court conscientiously considered its contents in conjunction with other evidence. Nevertheless, in the interest o f procedural fairnessthe cautioned statement is hereby expunged from the record\ though its absence does not vitiate the sufficiency o f evidence." Unfortunately, the 1s t appellate court crept into error by using the same evidence which it has already expunged to fortify its finding that the offence has been committed. The 1s t appellate court wrote: "The law does not mandate recovery o f stolen properties as precondition for conviction. The i

prosecution adduced ample evidence including eye witnesses' testimony and cautioned statement to substantiate the commission o f the offence." This approach was clearly erroneous in law and a misdirection of evidence. The evidence once expunged cannot be resurrected directly or indirectly to support a conviction. The said evidence once expunged is as good as it was never tendered in evidence and it was a misdirection on the part of the 1s t appellate court to rely on it. We are now left with the identification of the appellant in the identification parade. It is noteworthy that, the identification parade left much to be desired. Neither PW1 nor PW2 gave any form of description of the appellant though the offence was committed during daytime, and PW1 and PW2 were with the appellant at close proximity for two hours. Therefore, holding of identification parade was merely a charade. It did not serve any purpose. The position of law was settled in Ahmad Hassan Marwa v. The Republic [2010] TZCA 183, where the Court stated: "... it is further the law that for any identification parade to be o f any value the identifying witness(es) m ust have earlier given a detailed description o f the suspect before being taken to the identification parade".

The Court's stance was fortified in Emilian Aidan Fungo @ Alex and Another v. The Republic [2009] TZCA 135, where it stated: 'We are aware that evidence that a witness had identified an accused person at an identification parade is not substantive evidence. In terms o f section 60(1) o f the CPA,, such a parade may be held at the investigation stage only "for the purpose o f ascertaining whether a witness can identify a person suspected o f the commission o f an offence". To be o f any value in criminal proceedings, before such as a parade is held the identifying witness must have earlier, given a detailed description o f the suspect , who was unknown to him, which would help the investigation in their search for the suspect and if any arrested eventually, this description would form a basis for the witness's identification at the parade. Neither PW1 nor PW5 gave such description." (See also Zilam Hamis v. The Republic [2024] TZCA 504). Further, in Mussa Hassan Barie and Another v. The Republic [2012] TZCA 230 the Court stressed: "An identification parade is by itself not substantive evidence. It is usually only admitted for collateral purposes, mostly, to corroborate dock identification o f an accused by a witness (See 9

MOSES DEO vs R (1987) T.LR. 134. But if it is to be o f any value, such identification parade must be conducted in compliance with the applicable procedure as set out in REX vs MWANGO s/o MANANA (1939) 3 EACA 29 (or PGO 232). Otherwise, it will be o f little probative value against an accused person." What happened in the instant case, was a dock identification as rightly pointed out by the learned Senior State Attorney and the position of law on dock identification is also very clear as stated in Majid John Vicent @ Mlindamgabo and Another v. The Republic [2012]TZCA 281: "As already stated, PW1 was the key witness in the case. In other words, the prosecution case was to stand or fall on the evidence o f this crucial witness. At best however, the evidence o f this witness was nothing but a narration o f the events o f that night and what befell him in the encounter. There is absolutely no scintilla o f evidence to show whether and how he identified the appellants at the material time. His evidence, if any, was one o f dock identification at the trial. Needless to say, in the absence of an identification parade conducted earlier with the view to testing whether PW1 really identified the appellants on the night 10

in issue, it follows that the dock identification in the case was worthless in law." Reverting to the identification parade in the instant case, several anomalies were observed. For instance, the identification parade register was not tendered in evidence. Therefore, there is nothing to show the compliance of the procedures in conducting the identification parade and the appellant was right in complaining about it. Further, from the pieces of evidence gathered from the testimonies of PW1, PW2 and PW6, it is clear that PGO 232 which governed the holding of identification parade was not adhered to. One, we expected to have the description of the accused before the parade was conducted, which was not there. Two, since there were six accused persons in the trial, we expected to have more than one identification parade in accordance with PGO 232 (n). Three, we expected to see a statement from the appellant to show his satisfaction on the way the identification parade was conducted. Lastly, we expected PW6 to explain to PW1 and PW2 the purpose of parade and also record their replies in what connection they were able to identify the appellant. We are, therefore, in full agreement with the sentiments of both Ms. Mushi and the appellant that, there was no identification of the appellant. It was a dock identification which standing alone, as in this case, has no value at all in law. There was, therefore, no evidence at all upon which 11

the conviction of the appellant on the offence of armed robbery could be safely grounded. Consequently, on the face of these doubts, we allow the appeal in its entirety. The conviction of the appellant and the sentence imposed on him are accordingly quashed and set aside. We order for his immediate release from prison unless he is being held there for another lawful cause. DATED at MWANZA this 26th day of February, 2026. M. C. LEVIRA JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 27th day of February, 2026 in the presence of the Appellant in person, Mr. Prince Massawe, learned State Attorney for the Respondent/Republic and Ms. Gloria Masige, Court Clerk; is hereby certified as a true copy of the original. 12