John Hussein Isango & Another vs Republic (Criminal Appeal No. 661 of 2024) [2026] TZCA 138 (26 February 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA fCORAM: GALEBA. J.A.. MASOUD. 3.A. And FELESHL JJU CRIMINAL APPEAL NO. 661 OF 2024 JOHN HUSSEIN ISANGO ... ALFRED MOHAMED NYAULI ,1 st APPELLANT 2N DAPPELLANT VERSUS THE REPUBLIC RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Dodoma) ( Mambi. 3 .1 dated the 16th day of February, 2024 in GALEBA. J.A.: In this appeal, the appellants John Hussein Isango and Alfred Mohamed Nyauli were jointly and together charged before the Court of a Resident Magistrate at Singida (the trial court) in Criminal Case No. 1 of 2023. They were charged on a single count of armed robbery contrary to section 287A of the Penal Code. According to the record of appeal at page 1, the particulars of offence in the formal charge upon which they were arraigned and consequently tried, were as follows: DC Criminal Appeal No. 30 of 2023 JUDGMENT OF THE COURT 10th & 26th February, 2026 1 "JOHN S/O HUSSEIN ISANGO and ALFRED S/O MOHAMED NYAULI, on 11thday o f May2022 during evening hours at Mgungia Village, within Iramba District in Singida Region did still cash TZS. 1,700,000.00 the property o f one SETH S/O YUSUF MOHAMED and immediately before, and after such stealing did use knife in order to obtain and retain the said properties." Based on the evidence of six prosecution witnesses the appellants were found guilty, convicted of the offence charged and were sentenced to thirty (30) years imprisonment by the trial court although they denied the charge and called four more witnesses in addition to themselves . Their appeal to the High Court of Tanzania at Dodoma (the first appellate court), did not succeed, it was dismissed on 16th February, 2024, hence this appeal. The appeal was initially based on 17 grounds of appeal which were lodged in Court on 11th September, 2024. However, on 6th February, 2024, Mr. Leonard Mwanamonga Haule, learned advocate retained by the appellants, under section 73 (2) of the Criminal Procedure Act lodged a Supplementary Memorandum of Appeal containing 3 grounds of appeal. For reasons that will be dearer shortly, this appeal will not be 2 disposed of based on all 20 grounds of appeal in the two memoranda of appeal. At the hearing of this appeal the appellants were represented by Mr. Haule, whereas the respondent Republic had the services of Ms. Miyango Kezilahabi, learned Senior State Attorney, assisted by Messrs. Frank Chonja and Nehemiah Kilimuhana, both learned State Attorneys. At the outset, and before we were to hear the parties on their submission in respect of the appeal, Mr. Haule for the appellant informed us that he wished to abandoned a total of 18 grounds of appeal and argue only 2 grounds in all. He submitted that he would only argue ground 1 in the initial memorandum of appeal and also ground 1 in the supplementary memorandum. There being no objection from Ms. Kezilahabi, we marked all grounds of appeal abandoned except the first grounds of appeal in both memoranda. Thus, this appeal is predicated on the following grounds of appeal: 1. That the first appellate court erred in law and in fact by upholding the conviction o f the appellants based on the incurably defective charge. 2. That the prosecution totally failed to prove the case against the appellants beyond all reasonable doubts as required by the iaw. 3 In supporting the above grounds of appeal which Mr. Haule argued together, his overriding point was that one of the ingredients of the offence of armed robbery was not disclosed in the charge sheet, and that ingredient was to whom the threat or the violence was directed. Referring us to page 1 of the record of appeal, the learned advocate submitted that the charge sheet does not disclose the person to whom the actual violence was perpetrated or to whom the threats were directed. When that happens, he contended, the charge of armed robbery cannot be said to have been proved against the suspect. He finally prayed that the two grounds of appeal be allowed and the appellants' respective conviction and sentences be quashed and set aside. In response to the above submissions, Ms. Kezilahabi did not only fully agree with Mr. Haule, but also added another serious anomaly obtaining in the evidence of the prosecution. She submitted that one of the points that must be proved in any case of armed robbery, was theft. According to her, although the charge alleges that the appellants stole Tshs. 1,700,000.00 from the victim of the offence, not a single witness out of the six prosecution witnesses who were called, proved theft of the money mentioned in the charged sheet. The learned Senior State 4 Attorney was therefore at one with her counterpart for the appellants that the charge of armed robbery was not at all proved against the appellants. She finally prayed that the appellants' conviction ought to be quashed and their respective sentences in prison set aside with orders releasing them from custody. In this matter, we agree with both learned counsel for the parties. A thorough reading of the particulars of offence in the charge sheet quoted above, shows plainly that the person to whom, violence or threat accompanying the alleged theft was directed, is not disclosed. In a case of armed robbery, that omission in the charge sheet is not a minor lapse, the omission is fatal and its consequences are equally devastating to the prosecution case. It is settled law that in a case of armed robbery if the person to whom actual violence or threats were directed to is not mentioned, the charge becomes incurably defective and no valid or fair trial can be said to have been conducted based on such a charge. In the case of Masumbuko Mhoja and Another v. R, Criminal Appeal 435 of 2017 (unreported), having encountered the same scenario, this Court stated: "On that account, we find that the charge is defective for failure to disclose to whom the threat was directed 5 in the particulars o f offence, and further that the anomaly cannot be cured by evidence as stated by Mr. Jairo. It follows that the judgments o f both the trial court and the first appellate court are null and void ab initio." That has always been the position of this Court and there is a long catalogue of cases on the subject including the following decisions; Kashima Mnadi v. R, Criminal Appeal No. 78 of 2011, Menziru Amri Mujibu and Another v. R, Criminal Appeal No. 151 of 2012 and Angulile Jackson Kasonya v. DPP, Criminal Appeal No. 162 of 2019 (all unreported). In view of the above, as the charge before the trial court was for armed robbery in which the particulars of offence did not disclose a person to whom the actual violence or any threat of violence was directed, according to the established jurisprudence in this jurisdiction, the charge was utterly defective without any possibility of being cured by evidence. Thus, we agree with the joint position of Mr. Haule and Ms. Kezilahabi that the two grounds of appeal under consideration have merit and we allow them. Although Ms. Kezilahabi also quite correctly submitted that theft was not proved in this case, we take it that determination of the above 6 grounds of appeal is sufficient to dispose of the whole appeal, without having to discuss that obvious error on the part of the prosecution. Finally, this appeal succeeds and we hereby allow it. The appellants' convictions are quashed and the sentences of thirty (30) years imprisonment that were imposed on each of them/ are set aside. Further, we order that they be released from prison forthwith unless their continued incarceration be for other lawful cause. DATED at DODOMA, the 26th day of February, 2026. Z. N. GALEBA JUSTICE OF APPEAL B. M. MASOUD JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL The Judgment delivered virtually, this 26th day of February, 2026 in the presence of appellant in person and unrepresented, Mr. Nehemia Kilimuhana, learned State Attorney for the Respondent/Republic and Mr. Oscar Msaki, Court Clerk, is hereby certified as a true copy of the 7