Ally Mohamed Nyoni @ Pepe vs Republic (Criminal Appeal No. 794 of 2023) [2025] TZCA 1046 (7 October 2025)
Judgment
IN THE COURT OF APPEAL OF TANZANIA AT SONGEA (CORAM: MKUYE, J.A., MASOUD. J.A. And ISMAIL. J.A/l CRIMINAL APPEAL NO. 794 OF 2023 ALLY MOHAMED NYONI @ P E P E ......... ........... ...... ...... APPELLANT VERSUS THE REPUBLIC .......................................................................... RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Songea) (Luvanda, J.^ dated 30th day of June, 2023 in Criminal Session Case No. 47 of 2022 JUDGMENT OF THE COURT 1st & 7th October, 2025 ISMAIL, J.A.: Swalehe Yasin Mlaponi, the deceased, drew his last breath in the wee hours of 12th January, 2022. It is common ground that, his death was unnatural, coming in the grisliest manner, allegedly at the hands of Ally Mohamed Nyoni @ Pepe, the appellant. He is alleged to have pitilessly pounded the deceased's head using a piece of timber. This tragic incident allegedly occurred on 12th January, 2022 at Matepwende Village, Namtumbo District in Ruvuma Region. The prosecution's account, as gathered from the record of appeal, informs that, on 11th January, 2022, Nassoro Sharif Mswahili, PW4, who l
identified himself as the deceased's long-time associate in the chickens and goats business, received a call from the deceased requesting that he accompanies him to Ligela Matepwende village to buy chickens. At around 11.00 hours, the duo left their Luegu village for Ligela Matependwe. Their mission bore no fruits. They then resolved to spend a night in the village. At around 20:00 hours, a person who came to be identified later as the appellant joined the duo at a food vendor at Magengeni area. He informed them that he was raising chickens and that he was willing to dispose them of as he was desperately in need of money. Fearing that the opportunity would elude him if he did not act fast, the deceased requested PW4 to let them go for the appellant's chickens which were said to be in Matimbuka village. While they succeeded in getting to Matimbuka, the deceased contended that, owing to darkness, he was unable to locate his home. After several failed attempts, they resolved to return to Matepwende. Midway through their journey, their motor cycle ran out of fuel, forcing them to walk to a nearby hut beside a milling machine, located at Jengeni area in Matepwende village, arriving there at around 04:00 hours. They resolved that they would spend the rest of the night in the hut. The deceased fast got asleep while seated on a bench. The appellant seized the opportunity and walked out. When he came in, he was armed with a piece of timber that he used to administer multiple hits on the deceased's
head. This happened in PW4's presence. The deceased then turned on PW4 who luckily scampered for his safety as the appellant was heard saying that he bayed for his blood to eliminate the possibility of leaking out the information on the incident. PW4 further stated that, at around 06:00 hours, he met "Wasukuma" who were ploughing some land and enlisted for their assistance in reaching out to his brother through their mobile phone. They generously did so. Through PW4, the matter was reported to Matepwende's Village Chairman, PW5, who conveyed the news to Police. Along with other persons, PW5 visited the scene of crime and found the deceased alive but in a critical condition. He carried life threatening injuries on the head. They rushed him to a village dispensary where he died shortly thereafter. Meanwhile, a swoop succeeded in apprehending the appellant. At around 15:00 hours, police officers from Namtumbo Police Station arrived, accompanied by PW2, a medical officer who conducted an autopsy to determine cause of the deceased's death. Exhibit P2, the Postmortem examination report, revealed that cause of death was traumatic brain injury. Police officers, led by OC-CID Cuthbert Manongi went to the village office in which the appellant was confined and searched him. He was found in possession of TZS. 279,300.00 and assorted items all of which 3
were seized through a Certificate of seizure, exhibit P4. They then proceeded to the scene of crime where they seized the piece of timber (exhibit P6) allegedly used to inflict injury on the deceased. They then drew a Sketch map of the scene of crime, exhibit P8. The seized items were subsequently handed to PW3, Seargent Athuman. On 13th January, 2022, the appellant recorded an extra-judicial statement, exhibit PI, in which he allegedly confessed to the killing. The confession was made before Justice of the Peace, PW1, Kenedy Ernest Hyera. On arraignment in court, the appellant was charged with murder the involvement of which he denied. In his defence testimony, the appellant, who featured as DW1, raised the defence of alibi, contending that, on the fateful day, he was away, visiting his aunt. He testified that he was forced to confess because of torture and intimidation perpetrated to him. Relying on the eye witness testimony adduced by PW4; exhibit PI and circumstantial evidence, the trial court put the appellant to a blemished account. It convicted him of murder and sentenced him to death by hanging. The conviction and sentence were too bitter a pill to swallow for the appellant. He swiftly preferred an appeal seeking to challenge the entirety of the trial court's finding and sentence. He initially instituted a seven- ground memorandum of appeal. This memorandum of appeal was
substituted when Mr. Vicent Kassale, learned counsel, took the conduct of the matter on the appellant's behalf. The substituted memorandum of appeal raised five grounds which are paraphrased as follows: One, that, the trial Judge erred in relying on visual identification which was not watertight while the witness's credibility was suspect. Two, the trial Judge erred when he discounted discrepancies in the testimony of PW4, PW5 and PW8, terming them minor without considering that such testimony was at variance with one another. Three, the trial Judge erred in relying on exhibit PI which was recorded by PW1, a District Magistrate, contrary to law. Four, the trial Judge erred in convicting the appellant on the basis of the weakness of his defence; and, five, the trial Judge erred in finding that the prosecution proved its case beyond reasonable doubt. Hearing of the matter pitted Mr. Vicent Kassale, learned counsel who represented the appellant, against Ms. Mwajabu Tengeneza, learned Principal State Attorney, assisted by Messrs. Frank Chonja and Elipidi Tarimo, both learned State Attorneys. The discussion was kicked off by Mr. Kassale who began by informing us that, after consultation with the appellant and in the latter's concurrence, he filed a five-ground memorandum of appeal which
substituted the memorandum of appeal which was filed by the appellant on 25th September, 2023. This change was duly noted. In his submission in support of ground one of the appeal, Mr. Kassale took a swipe at the learned trial Judge's reliance of the testimony of visual identification, adduced by PW4, the alleged eye witness of the incident. The learned counsel argued that, whilst PW4 purported to have identified the appellant after spending time together when they had dinner and, subsequently, when they took a ride on a motorcycle, the manner in which he purportedly identified him is seriously wanting. Mr. Kassale argued further that, at page 58 of the record of appeal, PW4 stated that, the incident and all events that preceded the alleged murder occurred at night. The learned counsel took us to page 68 of the same record at which PW4 admitted that the appellant was, hitherto, a stranger. It is why at pages 58 and 59 of the record he simply referred the appellant as "one person" or "that person" meaning that he did not know him. Amplifying on the applicability of the testimony of visual identification, the learned advocate argued that, while such testimony can solely be used to found a conviction, reliance on such testimony can be justified only if all elements of mistaken identity are ruled out. He
submitted that, in so doing the trial court ought to consider a number of issues such as: time during which the witness and the assailant spent together; distance between them; source and intensity of light; time lapse from the time he saw him; graphic description of the offender and ability to name him at the earliest opportunity; and, whether the persons to whom the eye witness named testified in the proceedings. Mr. Kassale retorted that, PW4 has been variously quoted stating that, in all the places at which he was with the appellant there was an aid of either solar light or moonlight, but he was economical with the facts relating to intensity of such light. Equally missing, in the learned counsel's contention, is a statement of the duration during which they hung together before they left for Matambuka. This denied the Court an opportunity to gauge if such time was indeed long. Punching further holes in the prosecution's testimony, Mr. Kassale contended that, credibility of PW4's testimony ought to have been tested by leading him to give a description of peculiar features of the assistant which would include his attire, body stature or complexion. This would be done to the people he allegedly met immediately after the incident. While this was not done, matters were not helped when the prosecution failed to parade the said people for testimony.
The same was said of the prosecution's failure to give any description of the assailant to the Village Executive Officer whom he (PW4) met as he scampered for safety. The learned counsel further drew our attention to page 64 of the record of appeal at which PW4 testified that, he was interrogated by the police. In a similar fashion, he argued, PW4 kept the information on the description of the assailant 'under his breasts' He buttresses his argument by referring us to our decision in Baya Lusana v. Republic, Criminal Appeal No. 593 of 2017 [2021] TZCA 16 in which it was held that the ability to name a suspect at the earliest opportunity is an assurance of reliability. Mr. Kassale dwelt on yet another related issue. This is in respect of the need to conduct an identification parade to test the witness's memory. In his contention, PW4's testimony at pages 65 and 75 of the record of appeal was to the effect that he identified the suspect, the appellant, while they were at the hospital. The learned counsel castigated this form of identification, arguing that a proper identification parade, known to law, must conform to known legal principles. These principles, he contended, were accentuated in the case of Yosiala Nicholaus Marwa & 2 Others v. Republic, Criminal Appeal No. 193 of 2016 [2019] TZCA 596.
Turning on to ground two of the appeal, Mr. Kassale pointed out what he considered as discrepancies or contradictions in the testimony adduced by PW4, PW5 and PW8. These contradictions allegedly resided in the appellant's threats, allegedly hurled at PW4. The words singled out for criticism are as follows: PW4 (at the hospital): "Una Bahati ningekuua na wewe pia/ ' PW5 (page 75: at the village office): "It is your good luck I w ill k ill you /' PW8 (page 93): "You are lucky because I ought to k ill you/' The learned counsel argued that these were material discrepancies that ought to have been interpreted in the appellant's favour. In ground three, Mr. Kassale has urged us to cast away exhibit PI, the appellant's extra judicial statement, and the contention is that, the recording of it contravened the provisions of section 58 (1) of the Magistrate's Courts Act. In his contention, the person who recorded it was Magistrate sitting in the District Court instead of a Primary Court Magistrate or a Resident Magistrate sitting in the Primary Court. The learned counsel argued that, unlike the former, the latter two serve as justices of the peace and are clothed with powers to record confessions
by suspects. Because of this anomaly, the learned counsel urged us to expunge exhibit PI and cross off the testimony adduced by PW1. The appellant's gravamen of complaint in ground four is that, conviction of the appellant was based on the weakness of his defence. Mr. Kassale invited us to cast an eye at the judgment, particularly at page 130, at which the learned trial Judge doubted the defence evidence. In Mr. Kassale's contention, the trial Judge placed a burden of proof on the appellant to prove his innocence. He argued that, this was not in order as the accused's duty is not to prove his innocence. Moving on to ground five, the contention by the appellant is that, the case against him was not proved beyond reasonable doubt. Mr. Kassale contended that, at page 88 of the record of appeal, PW7 testified that he was familiar with the appellant as a regular visitor to his workplace. He also testified that their acquaintance had lasted for three years to the date. He, however, gave a description that appeared to defy that reality. This brought the impression that the appellant was a total stranger to him. Mr. Kassale contended that PW7 failed to describe the attire that the appellant donned on the last day. To fortify his contention, he drew our attention to page 59 at which PW4 testified that the appellant was a stranger to the area.
Mr. Kassale urged us to allow the appeal, quash and set aside conviction and sentence, and set the appellant free. Mr. Tarimo, who initially opposed the appeal, softened his stance and expressed his support to the appeal. We chose to confine his arguments to ground one alone. He echoed his counterpart's displeasure with the way the trial court found sufficiency in the testimony of visual identification and base its finding of guilt there on. The learned State Attorney was of the contention, that there is no evidence of identification and that, absence of such testimony damages the prosecution's case. Shrugging off the testimony of PW4, Mr. Tarimo argued that, his credibility was profoundly suspect and so is his testimony. He contended that, since the prosecution's case was built on the PW4's eye witness account, what is left of the prosecution's case is weak and unable to build any credible account. He, in consequence, urged us to allow the appeal. The counsel's unanimous submissions bring out one singular question. This is as to whether the case against the appellant was proved. It is common ground that, the prosecution's case was, by and large, built on the evidence of visual identification, adduced by PW4. The contention by the learned counsel is that, this testimony failed the test of visual identification that can be relied upon. The testimony is, in their view,
neither cogent nor credible. The learned trial Judge, though, found the testimony convincing, sound and worth of reliance. As we delve into the heart of the matter, we need to reiterate what is now a household position in criminal jurisprudence. This is to the effect that a conviction may be grounded solely on the evidence of visual identification. This fact does not, however, ignore the fact that, byits very nature, such testimony is considered to be of the weakest nature and fraught with dangers of mistaken identity. It is why a condition precedent was set that, to found a conviction, such testimony must be watertight and leaves no possibility of errors - see: Waziri Amani v. Republic [1980] T.L.R. 250. This resounding position has been restated in numerous decisions of the Court. In Damian Manyika @ Babu Tanga v. Republic, Criminal Appeal No. 306 of 2022 [2024] TZCA 451, we held: "It has been the position o f this Court that in order to base a conviction on the evidence o f a sole eye witness, his or her evidence m ust be absolutely w a te rtig h t (see - Ram adhan S a id O m ary v. The R e p u b lic ' Crim inal Appeal No. 33 o f 2005 (unreported)" [Emphasis added].
As to what constitutes watertight evidence, the decision of the Court in Nhembo s/o Ndalu v. Republic, Criminal Appeal No. 33 of 2005 [2008] TZCA 87 laid a description in the following words: "In law ...fo r evidence to be watertight, it m ust be relevant to the fact in issue, adm issible, credible, plausible, cogent and convincing as to leave no room for a reasonable doubt." Appreciating the fragility by which the visual identification is characterized, and to tame any possible abuse in its application in grounding conviction, where it does not meet the threshold, some rigorous conditions have been imposed on the prosecution. These conditions were underlined in Chacha Jeremiah Murimi v. Republic, Criminal Appeal No. 551 of 2015 [2019] TZCA 52 in which several questions were formulated, as follows: "... how long did the witness have the accused under observation? A t what distance? What was the source and intensity o f the ligh t if it was at night? Was the observation impeded in any way? Had the witness ever seen the accused before? How often? I f only occasionally had he any special reason for remembering the accused? What interval has lapsed between the original and the subsequent identification to the police? Was there any m aterial discrepancy between the description o f the accused given to the police by the witnesses, when first
seen by them and his actual appearance? D id the witness name or describe the accused to the next person he saw? D id that/those other person/s give evidence to confirm it? " Our scrupulous review of PW4's testimony paints a gloomy picture that hardly convinces us, one bit, that, the testimony adduced by this sole eye witness fell anywhere close to what constitutes watertight evidence. We cannot help but agree with the learned counsel's unanimous view and hold that, the trial court's finding of guilt and conviction were based on a set of patchy assertions which are a far cry from watertight evidence that the law requires in a criminal prosecution. Our conclusion arises from the fact that this testimony, which has been roundly chastised by both sets of legal counsel was not, despite all the question marks that hung around it, put to a proper test. The need of subjecting the testimony to strict test is not a novel practice in criminal investigation, and its importance has been emphasized in a plethora of decisions. In Yosiala Nicholaus Marwa & 2 Others v. Republic (supra) we gave a very comprehensive list of tests that must be considered when ascertaining if the person said to have been identified is the alleged culprit or suspect of the incident complained about. We held as follows:
"There is a chain o f decisions o f the Court elaborating on the necessity o f the compliance with the tests in order to avoid m istaken identity o f a suspect when the evidence before the court is that o f visual identification. In particular regard to the case at hand the tests include:
- In every case in which there is a question as to the identity o f the accused, the fact o f there having been given a description are m atters o f the highest im portance o f which evidence ought always to be given, first o f a ll o f course by the person who gave the description or purports to identify the accused, and then by the person to whom the description was given. (R E PU B LIC VS M .B. A LL U I [1942] EACA 72.
- It is settled law that, for any identification to be o f any value, the identifying witness m ust have earlier given a detailed description o f the suspects. [A D R IA N O S /O AYO N D O VS R EPU BLIC, Crim inal Appeal No 2009 (unreported)
- The fact that a witness knew the suspect before that date is not enough. The witness m ust go further and state exactly how he identified the appellant a t the tim e o f the incident, say by his distinctive clothing, height, voice - See AN AEL SAM BO VS R EPU BLIC, Crim inal Appeal No 274 o f2007 (unreported).
- Dock identification is worthless unless this has been preceded by a properly conducted identification parade. [FR A N C ISM A JA LIW A A N D TWO O THERS
v s R EPU BLIC, Crim inal Appeal 139 o f 2005 (unreported)." What we gather from the record of appeal and emboldened by the learned counsel is that, PW4's testimony failed all the tests. The witness did not give any semblance of the appellant's description to anybody, including the "W asukum a "(referring to people of Sukuma origin that he first communicated with) and the Village Executive Officer. The descriptions would include several features ranging from his body build, complexion, attire, height and peculiar features, if any. We accentuated this imperative requirement in Omari Iddi Mbezi & 3 Others v. Republic, Criminal Appeal No. 227 of 2009 [2014] TZACA 2226. It was held: "The witness should describe the culprit or culprits in term s o f body build, complexion; size, attire, or any peculiar body features, to the next person that he comes across and should repeat those descriptions at his first report to the police on the crime, who would in turn testify to that effect to lend credence to such witness's evidence....ideally, upon receiving the description o f the suspect(s) the police should mount an identification parade to test the w itness's memory, and then a t the tria l the witness should be led to identify him again."
In this case, PW4 failed not only to make a description of the alleged assailant, the appellant, but also to name him at the earliest opportunity. It is settled that, naming of the suspect at the earliest not only provides an all-important reliability, it ensures credibility of the visual identification testimony - see: Taiko Lengei v. Republic, Criminal Appeal 131 of 2014 [2015] TZCA 288; and Zilam Hamis v. Republic, Criminal Appeal No. 489 of 2022 [2024] TZCA 402. Inexplicably, as well, PW4 said that the appellant was put under restraint by civilians but the prosecution did not see the need to cause any of them have his day in court and testify on the happenings of the day. The other sad reality in this respect is that, neither of these people was called to testify on what PW4 told them, if indeed he did. Apart from a very generalized and highly contradictory statements on how he identified the appellant, there were no details on the conditions of identification and whether they favoured positive identification. Another crucial aspect that is sorely missing in this case is that, no identification parade, held in terms of section 60 of the CPA, was conducted to confirm if the person that he allegedly saw attacking and killing the deceased is the person that he finally identified when he was paraded alongside other people. This is amidst PW4's own admission that the appellant was a total stranger to him. In short, conditions necessary
for positive identification as amplified in Chacha Jeremiah Murimi v. Republic (supra) were given a wide berth. Overall, we are convinced that conviction of the appellant was based on the testimony which was weak and lacking in any material credibility, thanks to the anomalies pointed out. Accordingly, on ground one alone, we allow the appeal, quash the conviction and set aside the sentence. We also order that the appellant be immediately set free unless held for some other lawful cause. DATED at SONGEA this 07th day of October, 2025. Judgment delivered this 07th day of October, 2025 in the presence of Mr. Vicent P. Kassale, learned counsel for the Appellant and Ms. Agnes A. Simba, learned State Attorney for the Respondent/Republic and Ms. R. K. MKUYE JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL Gloria Mas jigtej;k, is hereby certified as a true copy of the original. M A. S. GHUGULU ^DEPUTY REGISTRAR COURT OF APPEAL