Baraka .M. Aneno and Another vs Republic (Criminal Appeal No. 252 of 2024) [2026] TZCA 123 (25 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. 252 OF 2024 BARAKA M ANENO ......................................................................... 1ST APPELLANT ROBERT EMMANUEL....................................................................2 nd APPELLANT VERSUS THE REPUBLIC................................................................................ RESPONDENT (Appeal from decision of the High Court of Tanzania at Mwanza) (Robert, J.^ dated the 6th day of October, 2023 in Criminal Appeal No. 90 of 2023 JUDGMENT OF THE COURT 16th & 25th February, 2026 LEVIRA, J.A.: The appellants and six (6) others who are not parties to this appeal were jointly charged with two counts of armed robbery contrary to section 287A of the Panel Code Cap 16. Upon a full trial, they were convicted and each was sentenced to thirty (30) years imprisonment. It was the prosecution's case that, on 6th January, 2022 at Nyamatagata area within the District and Region of Geita, the appellants did steal cash money TZS. i 270.000.00 the property of one Kisusi William and immediately before and after such stealing, they threatened him by a machete and club in order to obtain and retain the said property. Also, on the same date and place they jointly and together did steal cash money TZS. 300,000.00 the property of one Emmanuel Kanyabali and immediately before such stealing they threaten to injure him by a machete to obtain and retain the said property. The appellants denied the charge. To prove it, the prosecution called five witnesses and tendered various exhibits. Emmanuel Kanyabali (PW1) testified to the effect that on 6th January 2022 at noon, he was on the road carrying fishes at Nyakabale Nyamatagata. However, ahead of him, the road was blocked therefore he had to stop his motorcycle. While there, seven (7) men came from the forest and one of them took his motorcycle ignition key and ordered him to step down; other men beat him with machetes while saying that he was not allowed to carry fishes and they claimed to be fishery officers. They demanded money from him. PW1 gave them his license but they toned it. The first appellant struggled to take away his mobile phone and the second appellant took TZS. 300.000.00 from his pocket. PW1 claimed that the first and second appellants beat him with the sides of the machete. Later, he moved away from the scene of crime and at 17:00 hours he went to Nyakabale to report the incident to the village chairman. PW1 and the village chairman patrolled around the area, they suspected one 'Tube' but he ran away. He testified further that, at the scene of crime he identified the first appellant to be the one who struggled to take away his mobile phone. On the same day, PW1 went to the hospital and was attended by Ambokile Baraka (PW5). On 17th February, 2022, he went to Geita Police Station and was able to identify the appellants at the identification parade. The evidence of Kisusi William (PW2) was almost similar to that of PW1, save that, he met the invaders at Madarajani area at Nyamatagata and those people whom he met demanded TZS. 700,000.00 from him but he gave them TZS. 200.000.00 only. He identified the appellants at the dock to be among the men he met on the material day. He testified further that on 17th February, 2020 at 11:00 hours, he went to the police to identify the accused persons and he managed to identify the appellants among the 12 people who paraded. The identification parade was conducted by Inspector James Mahaya (PW5). F 5436 D/Cpl. Robir (PW3) from the Investigation 3 Department, Geita Police Station, recorded the cautioned statement of the second appellant. He testified that the second appellant confessed to commit the offence of armed robbery. After closure of prosecution case, the appellants defended themselves. The first appellant (DW1) was very brief, he denied the charge leveled against him stating that, he did not commit the offence he was charged with. On his part, the second appellant (DW2) recollected that on 6th January, 2022, he was arrested and on 2n d March, 2022 is when he was informed that he was a suspect of armed robbery. He denied to have confessed before PW3 while recording his cautioned statement that, he committed the offence with which was charged. The appellants did not call any witness and therefore, after their defences, the trial court weighed the evidence by both parties and was satisfied that the prosecution proved its case against the appellants beyond reasonable doubt. As a result, it convicted and sentenced them as indicated above. The appellants were aggrieved by both, the conviction and sentence. They unsuccessfully appealed to the High Court, hence, the present appeal; the memorandum of which comprises four grounds. At the hearing of the appeal, the appellants were represented by Mr. Sijaona Revocatus, learned advocate, whereas the respondent Republic had the services of Ms. Happines Mayunga, learned Senior State Attorney. Mr. Revocatus sought and was granted leave of the court to modify and argue the second and fourth grounds of appeal appearing in the memorandum of appeal filed by the appellants in Court on 26th March, 2024. He submitted that, the first and third grounds of appeal will be argued in the cause while submitting in respect of the fourth ground of appeal. Therefore, the two grounds of appeal argued are as follows: 1. That the first appellant Judge erred in law to confirm the decision o f the tria l court w hile the charge was fatally defective fo r failure to am end it and read over to the two appellants after the form er six accused persons were discharged on a nolle proseque under section 91 o f the Crim inal Procedure Act, Cap. 20. 2. That the case against the appellants was not proved beyond reasonable doubt In respect of the first ground, Mr. Revocatus submitted that, the appellants were jointly charged with six others as it can be seen on the amended charge at page 4 of the record of appeal. However, after two prosecution witnesses (PW1 and PW2) had testified on 19th May, 2022 and 23rd June, 2022, the prosecution counsel informed the trial court that they had filed a nolle prosequi against the accused persons whom they mentioned and prayed for their case to be withdrawn. The prayer was granted, charge against those accused persons was marked withdrawn but there was no amended charge filed and hearing of case proceeded to the end. Unexpectedly, in its judgment found at page 80 of the record of appeal, the trial court included the names of the accused persons against whom nolle prosequi was entered. According to the learned counsel, the appellants were charged, prosecuted and convicted of a fatally defective charge. He cited the case of Balole Simba v. Republic [2021] TZCA 380 (17 August 2021). Mr. Revocatus argued further that failure to amend the charge and or substitute it is an incurable defect with effect of vitiating proceedings. In support of this position, he cited the case of Ramadhani Husein Rashid @ Babu Rama & Another v. Republic [2018] TZCA 1835 (3 November 2020 ). 6 As a way forward, Mr. Revocatus argued that this is not a fit case for an order of retrial because the evidence on record is not sufficient to ground the appellants' convictions otherwise, allowing retrial will give opportunity to the prosecution to fill in evidential gaps which he demonstrated in the second ground of appeal. Submitting in respect of the second ground of appeal, Mr. Revocatus argued that, the prosecution case against the appellants was not proved beyond reasonable doubt. He referred us to page 4 of the record of appeal where the charge indicated in the particulars of offence that before and after stealing, the appellants threatened the victim (PW2) by a machete and club in order to obtain and retain the stolen property. However, PW1 testified that the seven men whom he met on the road ordered him to step down from the motorcycle, other men beat him with machetes and forced to take away his mobile phone. He recalled that both the first and second appellants beat him with sides of the machetes. It was the argument by the counsel for the appellants that, there was violence which was not stated in the charge; hence, variation between the charge and the adduced evidence. More so, as he said, according to the evidence on record, PW1 went to the hospital after 7 the incident, he was given a PF 3 which was admitted in evidence and the clinical officer who attended him testified as PW4. He insisted that, the charge ought to have shown that there was violence, but that was not a case. Another reason why the appellants claim that the charge against them was not proved to the required standard was that, the identification by the prosecution witnesses was weak. Mr. Revocatus referred us to page 19 of the record of appeal where PW1 testified that, he identified the appellants in the identification parade with a view of showing that the prosecution witnesses gave a contradictory account of what transpired at the parade. While PW1 testified that nine (9) persons paraded and he was able to identify the appellants; PW2 on page 21 of the record of appeal said there were twelve (12) persons in the parade and PW5 who conducted the parade also testified that there were 12 persons. Apart from that, Mr. Revocatus submitted that, PW1 and PW2 neither describe the bandits to the village chairman nor to the Police where they went to report the incident. Surprisingly, PW1 testified that he was called to the Police to identify the appellants before identification parade date where he managed to identify the first appellant, on page 19 of the record of appeal. According to Mr. Revocatus, what was done was unprocedural and vitiated the purported parade. Equally, he argued, since there was no prior description of the appellants before identification parade, it cannot be said with certitude that the appellants were properly identified at the scene of crime and the identification done at the parade become of no evidential value. Finally, Mr. Revocatus urged us not to order for a retrial because the prosecution evidence is not watertight and therefore cannot be relied upon to ground the appellants' conviction. Otherwise, he said, if the Court will find that the charge was defective and order for a retrial, it will be as good as affording the prosecution an opportunity to fill in evidential gaps. In reply Ms. Mayunga supported the appeal. She concurred with the counsel for the appellants that, the prosecution ought to have substituted the charge after nolle prosequi of the appellants'co-accused. However, there was no substitution and the trial continued until the appellants were convicted. Since the charge is a foundation of a criminal trial, the appellants did not get fair trial, she submitted. Regarding way forward, Ms. Mayunga, as well, concurred with the counsel for the appellants. According to her, the prosecution witnesses failed to lead evidence describing the appellants to show that they were properly identified at the scene of crime and in the identification parade. She cited the case of Gwisu Nkonoli & 3 Others v. Republic [2015] TZCA 156 (28 May 2015), where the Court stated that description of the suspect before the conduct of identification parade is necessary. Ms. Mayunga added that, it was wrong and against PGO 332 para (9) for PW1 to be called to the Police to identify suspects before the identification parade was conducted. According to her, it is obvious that he pointed people whom he saw at the Police. That aside, Ms. Mayunga submitted that although PW2 testified that he participated in the identification parade, his name is not in the register of those who participated the parade. Therefore, she argued, it is doubtful whether he, indeed, participated as he testified. Generally, she said, the identification parade was not valid and urged us to allow the appeal. Following the submission by the counsel for the parties in respect of the two grounds of appeal and having thoroughly gone through the record 10 of appeal, it is clear to us that initially, the appellants were charged with 6 others. However, the Director of Public Prosecutions (the DPP) entered nolle prosequi and the charge was withdrawn against the 3rd, 4th, 5th, 6th, 7th and 8th accused persons. This was done after PW l's and PW2's evidence had already been recorded by the trial court as it can be observed on page 31 of the record of appeal. It is settled law that where two or more accused persons are charged jointly and the charge is withdrawn against one or more accused persons, the DPP is duty bound to amend or substitute the charge so as to reflect the accused person(s) against whom the charge should proceed to trial. Alternatively, if the DPP does not amend or substitute that charge, the trial court may make an order for amendment or substitution if it appears to it that the charge is defective either in form or substance. See for instance: Ramadhani Hussein Rashid @ Babu Ramia & Another (supra). In the instant case, just as correctly submitted by the counsel for the parties, the charge sheet was neither amended nor substituted after the charges against the 3rd, 4th, 5th, 6th, 7th and 8th accused persons were withdrawn contrary to the requirements of the law. The trial proceeded to li the end with a charge whose particulars of offence contained the names of the six accused persons whose charges were withdrawn by nolle prosequi entered by the DPP. Failure to amend or substitute the charge in the circumstances of the present case, denied the appellants the opportunity of pleading to the new charge, prosecuted and defending on a proper charge. The appellants defended on a charge and evidence related to eight (8) accused persons. Failure to amend or substitute the charge after nolle prosequi was entered against the six accused persons, affected even the citation in the judgment of the trial court on page 80 of the record of appeal. We therefore find and hold that, failure to amend or substitute the charge was a fatal procedural irregularity with a resultant effect of denying the appellants a fair trial as they were not accorded the right to plead to a charge to which they were convicted. We allow the first ground of appeal, nullify the proceedings and judgments of the courts below, quash convictions and set aside the appellants' sentences. Ordinarily, in a fit case, we would order for a retrial. However, having considered circumstances of this case, particularly the second ground of appeal, we agree with the counsel for the parties' that this 12 is not a fit case for retrial following the principle established in Fatehali Manji v. R [1966] E. A. 343. In the present case, there were a number of shortcomings in the prosecution evidence including poor identification of the appellants at the scene of crime and during identification parade which is capable of disposing of the appeal. Both PW1 and PW2 claimed that they were invaded by the appellants, threatened, beaten, and their properties were stolen by the appellants on the material day. They reported to the village chairman and later to the Police. However, in their testimonies, they never described the people who invaded them. The Police mounted identification parade where the said appellants went to identify the bandits. The record of appeal has it that, PW1 was called to the Police to identify them before the day on which the parade was conducted. The procedure adopted is not known to law. We agree with the counsel for the parties who were at one that, the identification parade had no evidential value because there was no prior description of the appellants prior to it. Since the appellants were strangers to the identifying witnesses, their visual identification cannot stand alone. In the circumstances, ordering a retrial will be as good as affording the prosecution an opportunity to fill in evidential 13 C O u gaps identified above. Consequently, we allow the appeal and order the immediate release of the appellants from prison unless they are held for another lawful cause. DATED at MWANZA this 24th 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 25th day of February, 2026 in the presence of the Appellants in person, Mr. Morice Mtoi, learned Senior State Attorney, Ms. Brenda Mayalla, learned State Attorney for the Respondent/Republic and Ms. Gloria Masige, Court Clerk; is hereby certified as a true copy of the original. m)m A. S.' ChLiGULU DEPUTY REGISTRAR COURT OF APPEAL