Juma Shaban Mohamed vs Republic (Criminal Appeal No 546 of 2022) [2025] TZCA 1017 (6 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: KEREFU. J.A.. MWAMPASHI, J.A. And AGATHO. J.A.l CRIMINAL APPEAL NO 546 OF 2022 JUMA SHABAN MOHAMED........................................................... APPELLANT VERSUS THE REPUBLIC......................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma) (Mahimbali, J ) dated the 23r d day of September, 2022 in Criminal Appeal No. 4 of 2022 JUDGMENT OF THE COURT 1s t & 6th October, 2025 AGATHO, J.A.: The appellant, Juma Shaban Mohamed and Waigama Johanes Marko @Mnyaru (not a party to this appeal) were arraigned before the District Court of Tarime facing a charge of armed robbery contrary to section 287A of the Penal Code, Cap 16. It was alleged by the prosecution that on 20/08/2020 at Mjini Kati Village within Tarime District in Mara Region, they stole cash money TZS 1,500,000.00 a property of Mwita Chacha Magige and immediately before stealing, they used a machete to assault the victim. The trial court convicted and sentenced the appellant to 30 years imprisonment.

The background of the case is that on 19/08/2020, Mwita Chacha Magoge (PW2) allegedly received TZS 1,500,000.00 from his brother-in- law, Charles Kegoka, (PW4) for the purpose of purchasing gold as part of their business partnership. The following day, on August 20, 2020, around 20:00 hours, PW2 was returning home from work on foot when he was accosted at Makaranga Street in Mjini Kati Village, Tarime District, Mara Region, by four men on two motorcycles, including the appellant and co accused, Waigama Johanes Marko @ Mnyaru. These men, armed with machetes, demanded money from him. PW2 refused, managed to escape, and fled home on a motorcycle he obtained en route. Upon arriving home, PW2 found his wife, Suzana Mwita (PW1) and their children having dinner outside in the compound. He reported the incident to PW1 and asked for food and went aside to speak on his phone. Moments later, as PW1 went inside to take the food, she saw the appellant among the bandits climbing over the fence wall and jumping into the compound, each holding a machete. Alarmed, she called out to PW2. PW2 attempted to run inside, but one Waigama grabbed his clothes, pulled him back, and assaulted him on the head with a machete. The appellant herein struck Mwita on the other side of his head with another machete, causing him to collapse unconscious. The said Waigama took PW2's wallet 2

containing the TZS 1,500,000.00 from his pocket, and the bandits fled through the gate. The incident lasted for about five minutes, and PW1 identified the appellant under bright electric round-bulb lights illuminating the area. She recognised the appellant as a neighbour she knew even before her marriage. PW2 raised an alarm, attracting neighbours, including Julius Marwa Wambura (PW3) who helped transport the severely injured and bleeding PW2 to Sungusungu Health Centre. Due to the gravity of his wounds, a fractured skull with exposed brain matter, PW2 was referred to Nyangoto Health Centre for an initial aid that was provided by Denis Vedasto Muzahula (PW6). Thereafter, he was taken to Tarime District Hospital, and finally to Bugando Medical Centre in Mwanza for an emergency neurosurgery. At Bugando, broken skull fragments were removed from his brain, and he remained in ICU for 14 days, regaining consciousness but suffering long-term incapacitation, including partial paralysis on his left leg and hand. The PF3 was tendered and admitted as exhibit P2. According to F. 7156 D/CPL Nicholaus (PW7) the investigation began the next day, 21/08/2020. They visited the crime scene and with 3

PWl's assistance drew a sketch map of the compound, wall, and the assault location which was admitted as Exhibit P3. In the defence the appellant and his co-accused denied the charge. Waigama Johanes Marco (DW1) testified that on the material time he was working at the mines. He also lamented that neither local leader nor police who recorded his statement was called to testify. In his testimony, the appellant who testified as (DW2) stated that he was arrested in Nyankuru area in connection with illegal gold mining. He was surprised that the prosecution charged him with armed robbery. He further narrated that he was beaten by the police and became unconscious. Apart from that, he highlighted the uncertainty among the prosecution witnesses regarding the name of a person who assaulted the victim. Some said Juma while others Mwita Juma yet others Juma Shaban and still others mentioned Juma Shaban @Chizi. On cross examination, he confirmed his name to be Juma Shaban Mohamed. In addition, charge sheets for Criminal Cases No. 278 of 2020; and No. 73 of 2021 were tendered and admitted as exhibits D1 and D2 respectively, as well as Police Form No. 3 (PF3) was admitted as exhibit D3. In the end, the trial court found the prosecution case had been proved beyond reasonable doubt. It convicted and sentenced them as stated earlier.

Disgruntled, the appellant appealed to the High Court (first appellate court) where his appeal was dismissed for want of merit. In a bid to vindicate his innocence, he further appealed to this Court challenging the first appellate court's decision. The memorandum of appeal contained eight grounds which are conveniently condensed into three grounds:

1. That, there was improper visual identification o f the appellants.
2. That ; the prosecution evidence was contradictory, inconsistent, unreliable and incredible.
3. That, the trial court failed to consider the appellant's defence. In prosecuting the appeal, the appellant appeared in person and unrepresented while Ms. Shose Naiman and Mr. Charles Kagirwa, learned i Senior State Attorneys, appeared for the respondent Republic. It suffices to note here that, the appellant abandoned all his previous memoranda of appeal lodged in Court and intimated that he would argue the grounds of appeal indicated in the memorandum of appeal dated 21/04/2025 embodying above stated grounds. He however preferred to let the learned Senior State Attorney to respond first but he reserved his right to rejoin, if need to do so would arise. At the outset, Ms. Naiman intimated that they are opposing the appeal. She also as preliminary, correctly submitted that grounds 3, 5, and 8 in the memorandum of appeal were not raised in the High Court

and they are indeed factual issues that cannot be entertained by this Court being a second appellate court as we held in Kisandu Mboje v. Republic [2022] TZCA 425. Thereafter, in her reply submission, the learned Senior State Attorney combined grounds 1 and 2 on inconsistencies, contradiction and incredible evidence of the prosecution (that is the second ground). She jointly submitted grounds 6 and 7 (in our case is the first ground) on improper identification of the appellants. She closed her submission with ground 4 (which we referred as the third ground) on the trial court's failure to consider the appellant's defence. On whether the appellant was properly identified, Ms. Naiman referred to the evidence of PW1 (the victim's spouse) at page 11 of the record of appeal who testified that she saw Juma and Mnyaru climbing the walled fence. On page 17 of the record of appeal, PW1 testified that she saw them with the aid of electricity bulb which had a bright light. Besides that, Juma is her neighbour and knew him before she got married. She testified that the assailants followed her husband and hacked him with machete on the head. Further on identification, the learned Senior State Attorney contended while citing PWl's testimony that the assailants were their neighbours. Therefore, in her view the issue of physical appearance is 6

immaterial because the witnesses recognized and knew them even before the incident. It is on record that PW1 testified that she recognized Juma as one of the attackers. It was her testimony that she recognized them through the electricity light bulb which had a bright light. PW2 added that the attackers were not wearing masks. Besides that, the appellant is not a stranger to the victim (PW2) and PW1. Moreover, PW1 at page 11 of the record of appeal, testified that she saw persons climbing the walled fence and through bright light from electricity bulbs she recognized them as Mnyaru and Juma. According to her these were their neighbours. She testified that the incident took about five minutes. Ms. Naiman stressed that the witness said the crime scene had a bright light from electric bulb. Concerning the testimony of PW2, the learned Senior State Attorney submitted that on page 15 of the record of appeal, the witness testified that while on the road he saw all four attackers holding machete. It was his testimony that at the crime scene there was bright electricity light which helped him to recognize the assailants as Juma and Mnyaru. Ms. Naiman submitted that the witnesses explained the source of light and its intensity. She contended that the principle in Waziri Amani v. Republic [1980] TLR 250, requiring the intensity of the light to be explained, was complied with. Ms. Naiman suggested that the attackers were not strangers that is why the witnesses recognised them. In support she 7

referred us to the case of Moi Ikwabe Matiko @Moi v. Republic [2024[ TZCA 625 at page 11 and the case of Chacha Jeremiah Murimi & Others v. Republic [2019] TZCA 52. Therefore, it was her submission that the complaint on improper identification (grounds 1 and 2) lacks merit. As with regards to credibility of prosecution witnesses, the learned Senior State Attorney relied on the case of Goodluck Kyando v. Republic [2006] TLR 363 suggesting that in the case at hand the witnesses had credence, and their evidence was not shaken because the trial court tested their credibility. But as it will unfold shortly that is not the case. The prosecution evidence was contradictor/ which affected its credibility. Again, in grounds 6 and 7 which for convenience we referred to as the first ground, the appellant complained about identification, Ms. Naiman submitted that the appellant never disputed that the prosecution witnesses knew him prior to the incident. She referred to us the case of Waziri Amani (supra). In conclusion she invited the Court to dismiss the appeal because the case was proved beyond reasonable doubt. She submitted that the ingredients of armed robbery under Section 287A of the Penal Code also stated in the case of Kisandu Mboje (supra) were

met. The evidence of attacking and wounding the victim is corroborated by PW3, the investigator and PW6 (the doctor) who attended the victim as well as PW5 (doctor at Bugando) who supported the evidence that the victim was wounded. In alternative, it was her submission that if there were any contradictions the Court should consider them to be minor as held in Ex G 2434 PC George v. Republic [2022] TZCA 609. The appellant rejoined while citing page 15 of the record of appeal that the evidence of prosecution had contradictions including the number of wounds which is unknown. On the same point, he referred to the testimonies of PW5 on page 24 and PW6 on page 26 of record of appeal that they gave contradictory testimonies and so is exhibit P2. As regards the complaint about the trial court's failure to consider the appellant's defence, which touched upon inter alia the, contradiction on the amount of money stolen, Ms. Naiman supported the trial court's finding that the contradiction (PW1 and PW2) on the amount of money was minor. Rejoining on this ground, the appellant invited the Court to look at pages 15-16 of the record of appeal where PW2 testified that the amount of money came from his brother-in-law, one Michael, which is contradicted by PW4 on page 18 testifying that the money came from him. According to the appellant, PWl's evidence on identification is 9

unreliable as she did not explain where she was standing, she did not explain the distance, nor did she elaborate on the light intensity as it was at night. In the end, the appellant beseeched the Court to consider the grounds put forward and allow the appeal. As alluded to earlier, in determining the appeal we shall direct our attention to three points: visual identification of the appellant, contradictions in the testimonies of the prosecution witnesses particularly PW1 and PW2, and failure of the courts below to consider the appellant's defence. To begin with the contradictions in the prosecution evidence, there is contradiction regarding TZS 1,500,000.00 claimed to have been stolen by the appellant and where that money came from. PW1 testified that the money stolen was more than one million. But she admitted not to have seen that money when her husband came back home on the material night. We entertain doubt here that PW1 did not know the exact amount of money alleged to have been stolen. PW2 on his side claimed, he had TZS. 1,500,000.00 in his wallet and that is the money stolen. As to the source of the money, PW2 testified on page 15 of the record of appeal that "...he had the money that he had worked for..." which is contrary to his testimony on the same page that TZS 1,500,000.00 which the 10

appellant is alleged to have stolen was from his brother-in-law, one Michael. Again, in his testimony PW4 introduced himself as Charles Kegoka and not Michael as a person who gave PW2 money to purchase gold. We have noted however that on page 8 of the record of appeal the name Micheal Charles Kegojka is listed. Despite that, we observed that PW1 gave incredible testimony on the amount of money whereas PW2 contradicted himself on the source of money. To that extent these are unreliable witnesses and lack credibility. We hold that the principle in Goodluck Kyando's case (supra) that every witness is entitled to credence does not extend to incredible witnesses like PW2. In our settled view the contradictions in the present case went to the root of the matter and damaged the credibility of PW1 and PW2. The above finding has implication on the identification of the appellant at the crime scene. We hold so because, if PW2 was able to lie on the issue of source of money, he cannot be credible and believable witnesses on the testimony of the identification of the appellant. In Misoji Ndebie@Soji v. Republic [2015] T.L.R. 517 the Court held that, a witness who tells a lie on a material point should hardly be believed on other points. We reiterated that sound position of the law in Jadili Muhumbi v. Republic [2022] TZCA 329. li

In the case at hand, it is equally incredible that a person who was being pursued by the attackers would reach his home and proceed to ask for food and talk to the phone relaxedly. PW2 testified also that he did not pay attention when his wife raised an alarm that there were attackers climbing the walled fence because he was on the phone call. Moreover, unexplained is the distance between PW1 and the attackers at the crime scene. That is contrary to principles in Waziri Amani v. Republic (supra) which requires not only the time of observation and the source of light and its intensity to be explained, but also the distance between the witness and the assailants at the crime scene. This fault casts doubt on the identification of the appellant. The record shows that PW1 testified that her husband told her that there were people chasing him. But she never said that her husband told her that the people pursuing him were Juma and Mnyaru. As if that is not enough, PW1 testified that through the light from electric bulbs she saw Juma and Mnyaru climbing the walled fence and attacked her husband without stating the distance she stood from the attackers. Even if PW1 claimed to recognize the appellant she ought to have explained the proximity to avoid mistaken identify. While PW1 and PW2 claimed to be familiar with the assailants, we have held in Abel Orua@Matiku and Others v. Republic [2024] TZCA 78 that even in identification by recognition there may be at risk of mistaken identity. 12

Therefore, we find merit in the grounds of appeal on improper visual identification of the appellant, and contradictions, inconsistencies, unreliable and incredible evidence of the prosecution. These grounds alone are sufficient to dispose of the appeal. But we thought it prudent to touch upon, albeit in passing, the complaint that the trial court failed to consider the appellant's defence. The appellant complained that his defence casting doubt on the prosecution case was not considered by the trial court. It is on record that the PF3 of the appellant was admitted as exhibit D3 to support the allegation of torture while being interrogated by the police. That suggests that his confession contained in the cautioned statement was extracted involuntarily. Contesting, the learned Senior State Attorney' submitted that the prosecution evidence did not cast any doubt. It was her submission that the appellant's defence captured on page 38 of the record of appeal focused on allegation of torture. But she quickly pointed out that the appellant's cautioned statement was not tendered in evidence and therefore his PF3 was immaterial. She contended that the issue of torture was not covered by the trial court because it was not the basis of the decision.

After revisiting the record of appeal, we found the complaint that the trial court did not consider the defence of the appellant to be true. The trial court on pages 61-62 of the record of appeal narrated the defence and did nothing more. It failed to evaluate the defence. However, this being the second appellate court, we cannot deal with factual issues. Nonetheless and understandably, failure to consider the appellant's defence is a matter of law and the Court has jurisdiction to intervene. We have glanced at the record of appeal at pages 65 to 66, and we are satisfied that the trial court and the first appellate court failed to consider the appellant's defence. As a matter of principle, the first appellate court is duty bound to evaluate the entire evidence on record. That was not done. Ordinarily, such misdirection would have entitled this Court to step into the shoes of the first appellate court and re-evaluate the evidence on record as held in Nurdin Iddi Ndemule v. Republic [2021] T7CA 99. But we decline to do so for being superfluous as the grounds of improper visual identification of the appellant and the contradictory, inconsistent and incredible testimonies of the prosecution witnesses went to the root of the matter and dismantled the prosecution case. Had the courts below paid attention to the above holes in the prosecution evidence it would not have found the prosecution case proved beyond reasonable doubt. 14

Consequently, the above considered, we allow the appeal, quash the conviction and the sentence imposed on the appellant. We, accordingly, order the appellant's immediate release from custody unless held therein for any other lawful cause. DATED at MUSOMA this 4th day of October, 2025. R. J. KEREFU JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL Judgment is delivered this 3r d day of October, 2025 in the presence of the Appellant in person and Mr. Jonas Samwel Kivuya, learned State Attorney for the Respondent/Republic, Shabani Kinyai, Court Clerk; is hereby certified as a true copy of the original. 15