Mohamed Shabani Nyema @ Mudi Wa Kusizi vs Republic (Criminal Appeal No. 37 of 2024) [2025] TZCA 1312 (29 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: WAMBALI. 3.A.. KAIRO, J.A. And NANGELA, J.A.) CRIMINAL APPEAL NO. 37 OF 2024 MOHAMED SHABANI NYEMA@MUDI WA KUSIZI. ..... ............... APPELLANT VERSUS THE REPUBLIC .................................. ........... .....................RESPONDENT (Appeal from the Decision of the High Court of Tanzania, at Dar es Salaam) (Mango, J.) dated the 04th day of November, 2022 in Criminal Appeal No. 63 of 2022 JU D G M EN T OF THE COURT 9th October & 29th December, 2025 NANGELA, J.A.: The appellant, MOHAMED SHABANI NYEMA@ MUDI WA KUSIZI, is appealing against the decision of the High Court of Tanzania sitting at Dar es Salaam, in Criminal Appeal No. 63 of 2022 which sustained a conviction of armed robbery contrary to section 287A of the Penal Code, Cap. 16. The High Court did also confirm the 30 years imprisonment sentence which was imposed on the appellant by the District Court of Mkuranga (the trial court), but discharged two of his co-appellants, namely Juma Abdallah Twalipo and Mohamed Ramadhani Ndevu, not forming part of this appeal. The facts, as confirmed by both the trial and first appellate courts, were that, on 14/04/2020 in the village of Vikindu, within Mkuranga District, at about 2:00 am, the appellant and four of his accomplices, namely: George Pacrates Rwebangila (DW1), Simon Alex Mwakipesole (DW2); Juma Abdallah Twalipo (DW3) and Mohamed Ramadhani Ndevu (DW4), armed with machetes and pieces of woods, invaded the house of Shabani s/o Ally Mtikita and his wife Elizabeth George Kapinga stealing therefrom TZS 4,000,000.00- (cash), a television (make Biackstone 50 inches) worth TZS 1,200,000.00, one subwoofer home theatre make LG, valued at TZS 500,000.00, and one mobile phone, make Nokia, valued at TZS 50,000.00. All stolen items valued at TZS 5,750,000.00 and, that, immediately before and after the incident, the appellant and his cohort severely wounded Shabani s/o Ally Mtikita, using machetes, in order to obtain and retain the properties they had stolen. Upon their subsequent arrest, thej appellant and his accomplices were arraigned in court facing a charge of armed robbery. During trial, the prosecution summoned six witnesses, namely: Elizabeth Kapinga (PW1), Shabani Ally Mtikita (PW2), G.9704 DC Paschal (PW3), G.5554 D/C Dotto (PW4); G 7715 DC Albanus (PW5) and Selemani Juma Lubuva, (PW6). Briefly, the substance of the prosecution's case and evidence, as found by the trial court, was that, based on the testimonies of PW1 and PW2, the appellant, together with Juma Abdallah Twalipo (DW3) and Mohamed Ramadhani Ndevu (DW4), were correctly identified by recognition as being among the persons who took part in the armed robbery incident. However, as the record of this appeal indicates, the first appellate court exonerated DW3 and DW4 but confirmed the appellant's conviction and sentence. ■ t On the other hand, the defence case involved the appellant, who testified under oath as DW5, alongside George Pacrates Rwebangila (DW1), Simon Alex Mwakipesile (DW2); Juma Abdallah Twalipo (DW3) and Mohamed Ramadhani Ndevu (DW4), all being not part of this appeal. In short, the substance of the appellants defence and evidence was a complete denial of any involvement in the alleged offence. He asserted that his inclusion in the charge occurred solely while he was in remand custody for a wholly unrelated matter, together with his alleged accomplices. Having heard and assessed the evidence placed before it, the trial court acquitted DW3 and DW4. However, it found the appellant, together with DW1 and DW2, guilty of the offence charged and subsequently convicted and sentenced them to a 30 years' imprisonment. Aggrieved by the trial court's decision, the appellant, together with DW1 and DW2, preferred a joint appeal (Criminal Appeal No. 63 of 2022) at the High Court of Tanzania, Dar es Salaam sub-registry. As earlier pointed out here above, upon hearing of their appeal, the High Court confirmed the trial court's findings against the appellant, and upheld his conviction and sentence. Conversely, it allowed DW1 and DW2's appeal, quashed their conviction and sentence and set them free. Dissatisfied by the High Court's decision, the appellant preferred this appeal. : I V- : In his memorandum of appeal, the appellant raised four grounds of appeal. Properly viewed, ground 2 may be merged with ground 4. In that regard, the appellant's rephrased and reorganized grounds of appeal read as follows: One, that, the appellant's conviction and sentence were based on unreliable evidence of visual identification/recognition. Two, that, the first appellate court erroneously applied a double standard when it upheld the appellant's conviction and sentence while acquitting his two co- e appellants (DW1 and DW2), while all three were convicted based on the evidence of similar nature. Three, that, the prosecution case based on evidence which was contradictory, insufficient, and incredible hence the case was not proved beyond reasonable doubt. At the hearing of the appeal, the appellant appeared in person with no legal representation while Ms. Janeth Magoha, learned Principal State Attorney appeared for the respondent Republic. When we called upon the appellant to address us, he only adopted his memorandum of appeal and implored us to consider his grounds of appeal, allow the appeal and set him free. For her part, Ms. Magoha did not support this appeal. Addressing the first ground of appeal which sought to challenge the evidence of visual identification, Ms. Magoha contended that the ground was devoid of merit because, first, both PW1 and PW2 had properly recognized the appellant on the night of the incident; second, there could be no mistaken identity because there was sufficient electric lighting at the time when the appellant, together with his accomplices, broke into the residence of PW1 and PW2; third, that PW1 and PW2 named the appellant by his alias, "Mudi wa Kusizi," and knew him to be a motorcyclist (commonly referred to as a bodaboda rider); fourth, that PW1 and PW2 ably gave a ! coherent account of the appellant's conduct at the scene of the crime. To support his submission, she relied on our previous decisions in Matata Wekwe v. Republic (Criminal Appeal 241 of 2018) [2022] TZCA 260 (11 May 2022, TanzLII) and Marwa Wangiti & Another v. Republic [2002] T.L.R. 39. We have carefully reviewed the record of this appeal and considered the appellant's complaint, alongside Ms. Magoha's submissions regarding the first ground of appeal. We think the;pertinent issue that need to be addressed when disposing of the first ground of appeal is whether PW1 and PW2's evidence of visual identification of appellant was water tight. This being a second appeal, the usual practice is for the Court to avoid interfering with the two lower court's concurrent findings of fact unless it is clearly shown that those courts below misapprehended the evidence, occasioned a miscarriage of justice, or violated some principles of law or procedure. See, for such a legal stance, the decisions in Julius Josephat v. Republic (Criminal Appeal 3 of 2017) [2020] TZCA 1729 (18 August 2020, TanzLII) and Ahmed Said v. Republic (Criminal Appeal No. 291 of 2015) [2016] TZCA 192 (17 November 2016, TanzLII). Reverting to the issue which forms the gist of the first ground of appeal, i.e., whether the conditions under which PW1 and PW2 claimed to have recognized the appellant were favourable, it is worth noting that, where a court intends to rely on evidence of visual identification, it must satisfy itself the evidence to be relied upon is watertight with no possibilities of mistaken identity. That reasoning was aptly stated in the often-cited case of Waziri Amani v. Republic [1980] T.L.R. 250 whereby, when faced with an akin situation, the Court stated that: "... evidence o f visual identification, as courts in EastAfrica and England have warned in a number o f cases, is o f the weakest kind and most unreliable. It follows therefore that no court should act on the evidence o f visual identification unless all possibilities o f mistaken identity are eliminated and the court is fully satisfied that the evidence before it is absolutely watertight". In the present appeal, we note that the testimonies of PW1 and PW2 were about visual identification by recognition. Be that as it may, in Hassan Hussein v. Republic (Criminal Appeal No.41 of 2022) [2023] TZCA 17304 (2 June 2023, TanzLII), the Court made it clear that, even in circumstances involving visual identification by recognition, as it is in the instant appeal, the above quoted principle will equally apply. In that decision, and while referring to its other earlier decision in Shamir s/o John v. Republic (Criminal Appeal No. 166 of 2004) [2007] TZCA 262 (16 March 2007, TanzLII), the Court stated that: "... even when the witness is purporting to recognize someone whom he knows, the court should always be aware that mistakes in recognition o f close relatives and friends are sometimes made In the present appeal, both PW1 and PW2 claimed to have recognized the appellant. Their basis for such recognition is that they were aided by the presence of electricity light in the room at the time the appellant and his accomplices broke into and, that the appellant was a person whom they knew before. However, both witnesses were neither clear as to the number and type of the sources from which the electricity light was being emitted (was it from tube light/bulbs and how many were V y they?) nor did they state how intense was such light. While we note that in Matata Wekwe v. Republic (supra), which Ms. Magoha cited in '\ support of her submission, the intensity and kind of light under which the appellant was identified were among the factors which supported his conviction, nonetheless, we are of a considered view that, the r • . . . y . . . circumstances in that case are not squarely the same as those obtaining in the present appeal. Essentially, whereas in that case the appellant and PW1 were old- time acquaintances who grew up together in the same area, a fact which made it quite easier for PW1 to recognize the appellant, in the present appeal, although PW1 and PW2 claimed to have recognized the appellant on the material night by his alias name "Mudi wa Kusizi", there was nothing more revealing that PW1 or PW2 had any closer acquaintance with the appellant. Consequently, although Ms. Magoha referred us to our previous decision in Matata Wekwe v. Republic (supra), we do not consider it to be an appropriate precedent to rely on given the circumstances of the present appeal. In her submission, Ms. Magoha referred to our previous decision in Marwa Wangiti Mwita and Another v. Republic (supra). In that decision, the Court emphasized on the importance of a witness's ability to name the suspect at the earliest opportune moment. However, we are of the view, as well that it is inappropriate to rely on that case because its factual matrices do not match with the circumstances of the present appeal. In the present appeal, for instance, even if it is alleged that PW1 named the appellant to the Police earlier by his alias name of "Mudi wa Kusizi", what is available on the record does not support a view that there was an early naming of the appellant as contended by Ms. Magoha. It is crucial to reproduce what PW1 stated on as reflected in the record of appeal to clarify that point: "W e reported the incident at Police. My husband was injured. We went to police and took a PF3. Thereafter, we went to Zakiemu Hospital for medical treatment My husband was treated at the hospital. After receiving treatment, we went again to police, we told the police that we managed to identify the accused persons .... One o f the assailants we knew him prior to the incident His name is "Mudi wa KusiziH e is a motorcyclist..." [Emphasis added]. As it may be noted from the above excerpt, there is no clear indication that PW1 and PW2 named the appellant earlier enough at the police station when both witnesses went to report the incident. What is clear, however, is that PW1 and PW2 named the appellant to the police after coming from the hospital where PW2 was taken for treatment. Besides, the record of appeal is silent and unclear regarding how long it took from when PW1 and PW2 went to hospital until they returned and named the appellant as one of the culprits whom they had identified. Because in all such circumstances there exists a loophole for imposition of afterthoughts which favours possible mistaken identity, our previous decision in Marwa Wangiti Mwita and Another v. Republic 10 (supra) cannot be relied on as Ms. Magoha would like us to do. As we stated in Masatu Webiro Mkirya @ Nyamtenge Kitogoti v. Republic (Criminal Appeal No. 284 of 2022) [2025] TZCA 216 (17 March 2025, TanzLII), that, as a matter of principle: "a precedent is not to be followed blindly, and each case must be held based on its own facts..... For that matter, this Court can only place a decisive reliance on its previous decisions, or a precedent having been satisfied or taken cognizance o f how the factual situation or circumstances at hand fits in with situation o f the decision it is being invited to rely on. In essence, a little difference in facts or additional facts in a particular case or in relation to a particular issue contemplated in that decision or precedent may make a lot o fdifference as regards its precedential value" The correctness of the alleged visual identification by recognition of the appellant is also doubtful when one considers the fact that, nowhere PW1 or PW2 was able to provide any detailed description regarding the appellant's attire at the time of the robbery, apart from the mere assertion i that they had recognized him as the person who injured PW2 by cutting him with a machete, and that they knew him as "Mudi wa Kusizi ”, a i i motorcyclist (Bodaboda). Besides, neither PW1 or PW2 knew where the appellant was residing nor did they state how often they used to hire him as a "Bodaboda", so as to strengthen their alleged prior acquaintance with the appellant. In our view, all such details were necessary in order to clear out any possible mistaken identity. But the above noted contemplation is further amplified by the fact that, although PW1 and PW2 claimed to have named the appellant to the Police earlier enough, his arrest, according to his defence (as DW5), came after four months (i.e., on 13/06/2021). If he was identified as one of the motorcyclists operating in the area as PW1 and PW2 claimed he was, one would have expected some more details from PW5 who investigated the incident, including the reasons for his delayed arrest. The entire record of appeal is silent on that aspect, casting more doubt to his alleged i; identification by way of recognition, more so because, his initial arrest, according to his defence, was not directly connected with the offence of armed robbery but another unrelated incidence. In fact, according to the appellant's testimony in defence, he was joined with the other accomplices whom he came to know while in court already facing a charge of armed robbery. Nowhere did the prosecution controvert that version of his story. 12 Based on all that, it is difficult on our part to accede to the argument that there had been correct and impeccable evidence of visual recognition of the appellant. This means the first ground of appeal is merited and we accordingly uphold it. We could have ended up here. However, we think there is a need to address the two other grounds. The second ground is a complaint that the first appellate court applied a double standard when it upheld the appellant's conviction and discharged his two co-appellants in that fist appeal. In her submission, Ms. Magoha contended that the appellant's first appeal was unsuccessful because the first appellate court was satisfied that the appellant was properly identified by PW1 and PW2. She conceded, however, that there was no other piece of evidence to rely on, such as caution statement or evidence relating to identification parade. : C First, as we already held herein, the evidence regarding visual identification/recognition of the appellant, was not impeccable and cannot be relied upon to convict. Second, while in a joint trial the court is obliged to consider each person's case separately and may come up with different outcomes depending on each individual's personal circumstances, culpability, or the evidence against him though the charges and the evidence be similar, in the circumstance of this case, based on parity of 13 reasoning, the appellant's first appeal ought to have been allowed. This is because his identification by recognition was not impeccable and no other alternative evidence was available to warrant his conviction. Consequently, since it was grossly erroneous to treat his case differently, we find that the second ground of appeal is as well merited. We now turn to the third ground of appeal. As a matter of principle, it is the prosecution's duty in all criminal cases to ensure that the case against the accused is proved beyond reasonable doubt. To do so, the prosecution evidence must align with the charges levelled against the accused person. This means that there should be no material contradiction that goes to the root of the charge itself. In his third ground of appeal, however, the appellant's complaint is essentially that the prosecution evidence was insufficient, incredible and contradictory, hence incapable of proving the case to the required standard. The issue, therefore, is whether the prosecution evidence was insufficient, contradictory and incapable of proving the case to the required standard. Our thorough review of the record of appeal does discernibly reveal that the prosecution case is beset with inconsistencies that we consider to be material. The first discrepancy is in relation to the number of bandits 14 who invaded PW1 and PW2's house on the material night. Whereas PW1 and PW2 maintained that they were 5 in number, upon being cross- examined, PW2 stated that they were 11 in number. On the other hand, PW5, the investigator, testified, based on the account of PW2, that, the robbery incident involved 10 bandits. This means PW1 and PW2 are not in agreement regarding how many people they were able to see on the material night when they robbers invaded their house. It is also notable from the record of appeal that, although PW1 testified to be at home with PW2 when the armed robbery incident happened, PW2 did not acknowledge anywhere in his testimony that he was with PW1 at the material time and place. This seems unusual because one would have expected PW1 and PW2 to give a similar account, since they were both eye witnesses. In our view, such discrepancies cannot be regarded as immaterial, as they accentuate the possibility of lapses in the alleged identification of those involved in the armed robbery. It follows, therefore, that the third ground of appeal is well-founded. For the reasons set out above, considered cumulatively, the prosecution has failed to prove its case to the standard required by law. In these circumstances, the appeal must be allowed. 15 I Accordingly, the appellant's conviction is quashed, the sentence of thirty (30) years' imprisonment is set aside. We order for the immediate release of the appellant from custody, unless his continued detention is justified on some other lawful ground. DATED at DODOMA this 22n d day of December, 2025. F. L. K. WAM BALI JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL D. J. NANGELA JUSTICE OF APPEAL Judgment delivered this 29th day of December, 2025 in the presence of the appellant in person/Unrepresented, Ms. Judith Kyamba, learned counsel for the respondent/Republic, via virtual Court and Ms. Jasmin Kazi Court Clerk; is hereby certified as a true copy of the original. 16 , ; /•