Kwiligwa Washa vs Republic (Criminal Appeal No. 887 of 2023) [2025] TZCA 1097 (13 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA rCO RAM: KOROSSO. J.A., KENTE, I.A. And KHAMIS, J.A.l CRIMINAL APPEAL NO. 887 OF 2023 KWILIGWA W ASHA...................................................................APPELLANT VERSUS THE REPUBLIC........................................................................ RESPONDENT (Appeal from the decision of the Resident Magistrate's Court of Mwanza) fTenawa-SRM with Ext. Jurisd.l dated the 24th day of May, 2023 in Criminal Appeal No. 19 of 2023 JUDGMENT OF THE COURT 30th September & 13th October, 2025. KENTE- J.A.: On 24th February, 2022 the appellant Kwiligwa Washa, was convicted by the Resident Magistrate's Court of Geita of the offence of armed robbery contrary to section 287A of the Penal Code, Chapter 16 of the Revised Laws. He was subsequently sentenced to the mandatory thirty years imprisonment. His appeal which was later on transferred from the High Court to the Resident Magistrate's Court of Mwanza to be heard by Hon. C. M. Tengwa,- a Senior Resident Magistrate with Extended Jurisdiction was, on 24th May, 2023 dismissed in its entirety

for lack of merit. The above decision is being contested in the present appeal. During the trial, there was unchallenged evidence from one Sharifu Mwepo (PW1) who told the trial, court that, on 31st December, 2020 at about 8:00 p.m. at Katoro Area in the District and Region of Geita, he was robbed of his motorcycle (with registration No. MC 837 CDU), by a passenger who had initially hired him to take him to Buseresere Secondary School. It was further established that, after arriving at the intended ■ destination, the passenger who would immediately thereafter turn into a bandit, gave further instructions to PW1 tc? take him'to another place,1 a proposal which PW1 rejected as the. appellant had hired him to drop him off at Buseresere Secondary School and it was not among the terms of their agreement for PW1 to take him to any other place. It was. common ground that, as the passenger got off the motor cycle, for no apparent reason, he stubbed PW1 on the shoulder with a knife. In a struggle that ensued, PW1 quickly gave up thereby giving his assailant the opportunity to take control and ride off the motorcycle into the darkness. Immediately thereafter, PW1 raised an alarm where upon the persons who had answered his alarm advised him to report

the incident to the Police at Buseresere. He also informed Selemani Mussa (PW2) who was the owner of the stolen motorcycle. On 16th January 2021, the stolen motorcycle was found in the possession of one Samwel Bahati (PW5) within the township of Geita. Upon interrogation, PW5 told the Police that he had, two days before, hired the said motorcycle from the appellant on a condition, among others, that he would use it to carry passengers and pay him TZS. 7,000.00 on a daily basis, as a hire-price. As we shall later on demonstrate, this was another limb of the prosecution evidence which was relied on by the trial court to corroborate, the evidence of identification of the appeiraht'as'the perpetrator of the subject offence. For his part, the appellant denied the charge. He contended that his arrest was not because of stealing the alleged motorcycle or being identified by PW1. He said that, on 16th January 2021 one old man who found him with his (the old-man's) daughter at A.M Hotel in the township of Geita, called'the police arrested hlnrupon allegations that he was engaging in romantic relationships with a sdhoot girl. The appellant explained that,, from the said Hotel, he was whisked to the Police Station at Geita where he was severely beaten up and told that, he would- be falsely incriminated in a "never-to-be" forgotten criminal

offence. He thus protested his innocence saying that he was a victim of a frame up. After hearing the parties, the trial court rejected the appellant's defence version and believed the prosecution evidence, hence the conviction which was sustained by the first appellate court. Before us, the appellant has presented a long list of complaints seeking to challenge the concurrent decisions of the lower courts regarding his conviction and sentence. However, upon scrutiny, this appeal essentially raises two general questions of importance, to wit, whether the learned Senior Resident Magistrate of the- first appellate court could properly have accepted and acted upon the evidence of identification offered by PW1 as sufficiently reliable to support the conviction, and, if that evidence was wanting, whether the appellant really had. possession of the allegedly stolen motorcycle. If the latter proposition holds good, the next immediate and final question for us to determine will be.whether, the proper inference to be drawn from such recent possession was that the appellant was the person who robbed PW1 of the said motorcycle on the material day and not PW5 who was found in actual possession of the aforementioned motorcycle. 4

Before us, whereas the appellant appeared in person to prosecute his appeal, Mr. Robert Magige, learned State Attorney appeared for the respondent-Republic. At the outset, after the appellant intimated to us that he would let Mr, Magige respond to his grounds of appeal and later on make a rejoinder if necessary, Mr. Magige informed us that, upon a careful reappraisal of the evidence on the record, he couid not

• support the conviction and, as we shall herein after demonstrate, we entirely agree with him. Submitting in support of the appeal, Mr. Magige begun by stating that, the state case was mainly if not wholly, anchored on the evidence ofasingle identifjcatiori witness'which in order to support a conviction, it ought to have been, but was not watertight. According to Mr. Magige, the said evidence was very unreliable for having been obtained under very unfavourable conditions and circumstances. This, it was submitted, was because the offence was committed in the increasing darkness of the eventide and, prior to the occurrence of the incident, the appellant and PW1 were not familiar to each other. , ; - Regarding PWl's contention that in recognising the appellant, he relied on the light from the nearby pub, this learned State-Attorney particularly criticised the evidence of PW1 saying that, it was not

enough for him to mention the source of the light that allegedly enabled him to recognise the appellant whom he had not known before the robbery without leading evidence regarding the intensity of the said light showing the specific lighting conditions under which the offence was committed and the identification made. In this regard, our attention was drawn to our earlier decision in the case of Chamungo Richard @ Kipingu v. Republic, Criminal Appeal No. 56 of 2022 (unreported) where, as in the instant case, in dealing with the evidence of visual identification of an accused person, we followed our earlier decision in the case of Magwisha Mzee & Another v. Republic, Criminal Appeal No..465,of 200^s(unreported) in which we guided that: ■ "... when it comes to the issue o f light, dear evidence must be given by the prosecution to establish beyond reasonable doubt that the iight relied on by the witness was reasonably bright to enable the identifying witnesses to see and positively identify the accused person . Bare assertions that "there was light would not suffice/' ' ! / ' ‘ It is important to pose here and also remark, as we move on that, in the present case, it was not gainsaid that PW1 did not give any estimation of the time he allegedly had the appellant' under observation 6

and the distance between them. According to Mr. Magige, this was another unsatisfactory feature in the evidence of PW1 which, as it turned out, the lower courts seem to have approached with closed eyes. Moving forward, the learned State Attorney submitted that, as if that was not bad enough, there is no evidence showing that PW1 had described the appellant's outward appearance to the Police and, as a consequence, no Police Officer appeared to testify on that crucial aspect. Put in other words, Mr. Magige's submission of which we entirely agree with him vyas that, while PW1 claimed to have identified the appellant during the robbery, he had not given his (the appellant's) description before his "arrest; Needless to say, this is an aspect which has a bearing on the most important question,as to whether there was no possibilities of a mistaken identification in a case such as the present one where the identification of the perpetrator of the crime could prove decisive. Without hesitation, we take the view that, had the lower courts taken into consideration this evidential deficit in the evidence presented by the prosecution, they would not have accorded undue weight to PWl's testimony as a single identifying witness. We find with due respect that, the two lower courts erred in law and fact in their

evaluation of identification evidence because the conditions obtaining at the scene of the crime were not ideal to a correct identification. Another aspect which is of concern according to Mr. Magige, is the evidence regarding the appellant's identification at the identification parade. On this, it was the learned State Attorney's submission that, whereas the register used to record the proceedings of the said parade (Exhibit P4), was not read over to the appellant to apprise him of its contents, the oral testimony regarding the appellant's identification at the parade is equally wanting.- Elaborating, Mr. IVlagige submitted, correctly so in our view that, whereas there are indications that some or'th^identificatioh f^aracier ' rples4were most probably violated by Inspector Mariam Mudo (PW6) who was the Officer Incharge of the parade,, the appellant's complaints such as lack of resemblance among the parade participants and suggestive pre-parade actions, were not addressed by the trial court and the first appellate court upon appeal. Because of this, the learned State Attorney implored us to discard the entire of the said evidence which, according to him, was obtained, from an improperly conducted identification parade. Another’disquieting feature in the prosecution case, according to Mr. Magige, and, as far as we can ascertain, is the lack of evidence

regarding a documented or oral process that tracks the seizure, possession and handling of the stolen motorcycle. On this point Mr. Magige submitted and we entirely agree with him that, the gaps in the chain of custody (as it is otherwise called) of the stolen motorcycle, had the effect of rendering it inadmissible because its integrity and reliability as exhibit were probably compromised. That being the case, Mr. Magige submitted, and we cannot agree more with him that, if the said motorcycle which is a crucial evidence is excluded from the evidence for being inadmissible, the prosecution's duty and ability to prove its case beyond reasonable doubt , as mandated by law, is severely hampered. . ' w , " „ : On our part, having considered the record, the judgment appealed against, and the grounds of appeal which were orally augmented by Mr. Magige at the hearing of the appeal, we find that, on the totality of the evidence deployed before the trial court, there was no sufficient material on which the appellant could be said to have been safely convicted. To start with, as correctly submitted, by Mr. Magige, the view we take about this appeal, is fortified by our earlier decision in the case of Chamungo Richard (supra) and many others. If we can recapitulate, in these decisions, we underscored the point

that, it is important and incumbent upon a witness identifying an accused person during the commission of an offence to describe the intensity of light at the crime scene with a view to establishing whether it was bright enough for them to allow a correct identification of the accused person. In the present case, whereas the undisputed evidence is that PW1 was robbed of his motorcycle by his passenger who was a total stranger to him and that, the robbery incident occurred during the night, there is no mention of the intensity of the light from the nearby pub which is said to have enabled PW1 to identify the appellant during the robbery encounter. Since the Court-has repeatedly emphasized that, if a witness relies on a light to identify a criminal suspect, they must dearly describe that source and its intensity, it must then follow that, when a witness just states that there was light but does not specify its intensity as it happened in the instant case, the .court is denied the ability to verify if the conditions obtaining at the crime scene were good enough to support accurate identification. . In view of the established principle of the law that, evidence of visual identification is often considered the weakest type of evidence and the courts are guided to carefully scrutinise it due to the potential

for error even with honest witness, the identification of the appellant by PW1 in the present case cannot be guaranteed. In such circumstances, there can be no doubt that the possibility of a mistaken identity were not eliminated and this renders the evidence of the appellant's identification by PW1 not absolutely watertight. We thus agree with Mr. Magige that, in the ultimate event, the threshold set in the celiebrated case of Waziri Amani v. Republic, [1980] TLR 250 for a conviction enchored on visual identification evidence, was not met. Consequently, we find the lower court's reliance on- the said evidence to be unsafe and to that end, we sustain the appellant's grievances in the first cluster of his complaints. ' As regards the second category of the appellant's complaints; the gravamen of his grief is that, notwithstanding the fact that he was not found in possession of the stolen motorcycle, the lower courts wrongly invoked the doctrine of constructive recent possession holding that, even if he did not have direct control over the said motorcycle, he was considered to have, constructive possession of it, having hired! it out to PW5 a few days after stealing it. If we can recapitulate, as to this point, the appellant complained that, whereas there was no conclusive evidence establishing that he had hired the said motor vehicle to PW5,

there was no sufficient evidence showing that the motorcycle which was stolen from PW1 was the very one which was eventually tendered and admitted in evidence as exh. P3. We have carefully studied the evidence and noted one important thing. Given our finding that there was no proof of an uninterrupted chain of custody through a detailed, chronological document or oral testimony that recorded or showed every person who handled the disputed motorcycle from the moment it was seized from PW5 to when it was exhibited in courts it cannot be said with any degree of certainty that, it could not. have been tempered with or completely changed. As stated^ ^earlier, Mr. Magige ^uite properly conceded the above shortcomings in the prosecution case which, as it turned out, was not given sufficient consideration by the lower courts. Needless to say, the finding, that there was a broken chain in the, custody of the stolen motorcycle, inevitably leads to the conclusion that, it was, wrongly admitted in evidence. Being critical to the prosecution case, this must therefore mean that, on the evidence as a whole, the; charge against the appellant was not proved to the required standard. . . In the ultimate event, we hold that, all in all, there was no sufficient material to support the appellant's conviction which the first

appellate court erroneously went on upholding. In the result, we allow the appeal, quash the conviction and set aside the custodial sentence imposed on the appellant We order that the appellant be set free from custody immediately if he is not detained for any other lawful cause. DATED at MWANZA this 13th day of October, 2025. - W. B. KOROSSO JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL A S. KHAMIS JUSTICE OF APPEAL Judgment delivered this 13th day of October, 2025 in the presence of the appellant in person and Mr. Mahembega Elias Mtiro, learned State Attorney for the Respondent/Republic connected virtually and Miss Harida Hamisi, the Court Clerk; is hereby certified as a true copy of the original. F. Ar^TARANM DEPUTY REGISTRAR COURT OF APPEAL