Salimu Kiwele Msamila @ Msamila and 2 Others vs Republic (Criminal Appeal No. 394 of 2023) [2025] TZCA 979 (19 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: MKUYE. 3.A.. KAIRO. J.A. And ISSA. J J U CRIMINAL APPEAL NO. 394 OF 2023 SALIMU KIWELE MSAMILA @ MSAMILA SHABANI JAFARI KAMBONGO .............. ISSA MOHAMED @ LUSWAGA ............... 1 st APPELLANT 2 nd APPELLANT 3 rd APPELLANT VERSUS THE REPUBLIC RESPONDENT (Appeal from the decision of the High Court of Tanzania at Arusha) 22n d July & 19th September, 2025 KAIRO. J.A.: The appellants were arraigned before the Resident Magistrates Court of Arusha (the trial court) facing the charge of armed robbery contrary to section 287A of the Penal Code, Cap 16 R.E. 2002, (the Penal Code). The particulars of the offence are that, on 5th day of September, 2017 at Impala round about area within the city of Arusha, the trio jointly and together did steal Tanzanian shillings one hundred seventeen million four hundred sixty-two thousand (TZS. 117,462,000.00), the property of Leopard Tours Limited and immediately before, during and after such (Tiqanqa, J.) dated the 14th day of September, 2022 in Criminal Appeal No. 5 of 2019 JUDGMENT OF THE COURT

stealing, did use pistol, gun and hammer to threaten one Imran s/o Abeid Ismail in order to obtain and retain the said property. The background to this case is that, on the fateful day at around 13.00 hours, one Imran s/o Abeid Ismail (PW1), an accountant/cashier at Leopard Tours, drove his motor vehicle, Toyota Alteza make, silver in colour and went to Bank M in Kijenge to cash two cheques both having a total sum of TZS. 117,462,000.00 for Leopard Tours. Upon reaching there, he parked his motor vehicle outside the bank premises, took a black bag containing the cheques and left it to a teller; one Abraham. PW1 returned home for lunch and prayer. He went back to the bank to collect the cash at around 15:00 hours which he got after about 45 minutes. He placed the cash in the black bag and drove off, back to his office. When reached at Impala round about, PW1 noted a white vehicle in front of him which blocked him. It was around 16:15 hrs. He hooted so that it can move, but it did not. Suddenly, he was ambushed. A person he described as maji ya kunde (brown skin colour) and of medium height came on his left side. He smashed the car window and started to pull the black bag containing the money. Using his left arm, PW1 resisted and they both struggled for it. Noting that PW1 did not let it go, the guy went on the right side of the car and broke the window. No sooner than later,

another guy he described to be black, short and slightly fat emerged and pointed a pistol at the head of PW1. He ordered him to let go the bag else he would kill him. He surrendered and the guy took the bag. The said bandit further switched off the car engine and took the key. PW1 further noted a third assailant who was of maji ya kunde (brown skin colour), medium size who stood in front of him, and that there was a motorcycle at the right side of his vehicle. The robbers fled on the motorcycle towards Njiro, followed by the white vehicle which blocked PW1. According to PW1, the incident lasted for about five minutes in daylight, allowing PW1 to observe the attackers. The incident was reported to the police who arrived at the scene, interrogated PW1 and later took his statement at the police station around 21:45 hrs. With the assistance of an informer (pages 33 and 46 of the record of appeal as per PW4 and PW6), the police arrested the suspects, the trio inclusive. Later, an identification parade was conducted and PW1 identified the appellants and explained that, it was the 1s t appellant who threatened him with the pistol, the 2n d appellant was the one who stood by the vehicle, and the 3r d appellant was the one who broke the window. The said identification was confirmed by No. G 2909 PC Zakayo (PW7) and No. H 2261 DC Mongu (PW8) together with Sophia Kigombole (PW9) who

later supervised the parade and tendered the identification register admitted in evidence as exhibit P7. The prosecution evidence further included Abraham Maruya, a bank supervisor (PW2) who confirmed the withdrawal of TZS. 117,462,000.00, and No. F2596 DCPL Abdallah (PW3) who went to conduct a search at the 2n d appellant's house and recovered TZS. 7,514,000.00. The recovery was also corroborated by No. G2155 DC Yusuph (PW6) in his testimony. A certificate of seizure to that effect was filled and tendered in evidence by PW3 as exhibit PI. When in police custody, the 1s t and 2n d appellants each recorded his cautioned statement which were tendered by No. F 2162 DPL Francis and No. F 754 DCPL John Ngowi (PW4 and PW5 respectively). The same were admitted in evidence as exhibits P3 and P6 respectively. In their defence, all of the appellants disassociated themselves from the charges and also denied to know each other. The 1s t appellant further claimed to have been coerced to sign a cautioned statement and that the case was fabricated and prayed to be acquitted by the trial court. After a full trial, they were all convicted and each sentenced to serve thirty (30) years imprisonment.

Aggrieved, the appellants unsuccessfully appealed to the High Court of Tanzania at Arusha vide Criminal Appeal No. 5 of 2019. The decision of the High Court in that appeal is the subject of the current appeal premised on two memoranda of appeal: - The first one was lodged on 16 2023 May having the following 13 grounds:-

1. That, the learned High court Judge erred in law and fact in upholding the appellant conviction which was based on insufficient evidence o f identification.

2. That, the learned High court Judge erred in law and fact in upholding the decision o f the trial court which was erroneous for having been based on the evidence o f exhibit P2 (cash money TZS. 7,514,000.00 which its seizure and search was conducted contrary to section 38 (1) and (3) o f the CPA [Cap 20 RE2002].

3. That, the learned High Court Judge erred in law and fact in not finding that, the evidence o f the identification parade was invalid, because the conduct o f the parade was irregular as the same was not preceded by prior description o f the appellants by PW1 (exhibit Dl).

4. That, the learned High Court Judge erred in law and fact in upholding the decision o f the trial court which was erroneous for having been misdirected in believing that the motor vehicle with registration number T327 CJY, o f PW1 and the motor cycle with two red helmet (which the third appellant is alleged to be riding), were involved in the commission o f the offence o f robbery without such things being tendered and presented in court.

5. That, the learned High Court Judge erred in law and fact in upholding the decision o f the trial court, which was erroneously for having been premised on the evidence o f exhibit P2 (cash money TZS. 7,514,00.00) which its chain o f custody was highly questionable and broken.

6. That, the learned High court Judge erred in law and fact in upholding the decision o f the trial court which was erroneous for having been premised on exhibit P3 (the caution statement o f the 2n d appellant) which was taken contrary to section 50 and 51 o f the CPA.

7. That, the learned High Court Judge erred in law and fact in upholding the decision o f the trial court which was erroneous for having been premised on exhibit P2 (Caution statement o f

the 1st appellant which was never read to the 1st appellant by PW4 (DCPL FRANCIS) after PW4 finished recording it. 8. That, the learned High Court Judge erred in law and fact in upholding the appellant's conviction despite there being no proof to the effect that, the cash money (TZS. 7,514,000.00) was the same money which was robbed from PW1 as the said money (exhibit P2) which was tendered and admitted in court had no Bank M tape or sticker wrapping the said money as opposed to prosecution witnesses who said that the money they seized had Bank M tape or sticker wrapping it. 9. That, the learned High Court Judge erred in law and fact in upholding the third appellant's conviction basing on the evidence o f PW6 who said that the 3 d appellant was named by the 2n d appellant, whereas the record o f appeal does not reflect such evidence or show any where the 3 d appellant was ever named by his colleagues. 10. That, the learned trial Judge grossly misdirected himself in upholding the appellant's conviction without seeing that, the charge is defective for having been at variance with the evidence given, notably on the amount o f money involved in the transaction.

11. That,\ the learned High Court Judge gravely erred in law and fact in upholding the decision o f the trial court which was not properly, and critically analyzed and further premised on the contradictory, inconsistent and incredible prosecution evidence.
12. That, the learned High Court Judge erred in law and fact in upholding the appellant's conviction while the prosecution failed to parade material witnesses who were allegedly involved in the transaction and no reason was given for not bringing them.
13. That, the learned High Court Judge erred in law and fact for upholding the appellant's conviction while the case against the appellants was not proved beyond reasonable doubt. The appellants further lodged a supplementary memorandum of appeal comprising of 4 grounds as follows: -
14. That, the 1st Appellate Court erred in law and facts in not finding that, unexplained delay in arraigning the appellants in court created doubt in the prosecution case and was prejudicial to the appellants as it constituted to a deliberate breach o f Section 32 (1) o f the Criminal Procedure Act Cap.

20 R.E 2019, which demands there be a prompt arraignment o f suspects. 2. That, the 1st Appellate Court erred in law and facts in not finding that, the delay in preparing the charge with no apparent reason casted doubt in the prosecution case as to whether the offence was committed as alleged. 3. That, the 1st Appellate Court erred in law and facts that, the caution statement (Exhibit P2) o f the 1st appellant was un- procedurally admitted in evidence. 4. That, the 1st Appellate Court erred in law and facts by dismissing the appellant's appeal, without noting that, the caution statement o f the appellants do not show under what provision o f the law they were certified and in addition the same were repudiated and lacked corroboration. The appellants also filed their joint written submission in support of the first memorandum of appeal which they adopted it at the hearing with no more and prayed the Court to allow their appeal. When the appeal was called on for hearing, the appellants appeared in persons, unrepresented. They prayed to adopt both memoranda of appeal and unanimously informed the Court that, the oral

submission will be presented by the 2n d appellant on behalf of the rest in support of the grounds in the supplementary memorandum of appeal. On the other hand, Mses. Janeth Sekule and Blandina Msawa, both learned Senior State Attorney, teamed up with Ms. Tusaje Kapange, learned State Attorneys to represent the respondent Republic. It was Ms. Sekule who submitted on behalf of the other counsel and she was categorical at the outset that, the respondent was opposing the appeal. Ms. Sekule also informed the Court that, while preparing for the appeal, they noted that, grounds number 7, 8, 9 and 12 were neither raised nor determined by the High Court on appeal. Being new and non- legal, she beseeched the Court to refrain from determining them. She went on to submit that, the complaint in ground number 2 of the memorandum of appeal revolve around the certificate of seizure (exhibit PI) which was expunged by the High Court on appeal, as such it serves no purpose to discuss it in this appeal, being not part of the record of appeal. The appellants being lay persons had nothing useful to comment and left the matter to the wisdom of the Court. Indeed, our perusal of the record of appeal shows that, grounds number 7, 8, and 9 in the memorandum of appeal are new and non-legal.

It is a settled principle of law that, the Court has no jurisdiction to decide matters which were neither raised nor decided by the High Court on appeal unless they are points of law. [See: Halid Maulid vs Republic, [2021] TZCA 225 and Makende Simon vs Republic [2021] TZCA 156, both from TANZLII. In Halid Maulid (supra), the Court had this to say on that aspect: - The Court has no ju risdiction to decide on m atters which were not raised nor decided by the High Court or subordinate court with extended jurisdiction on first appeal unless they are points o f iaw. [Emphasis supplied]. We further observed that, ground number 2 in the memorandum of appeal was discussed by the High Court on appeal wherein it was raised as ground number 5 to the effect that, the search was conducted un- procedurally. The High Court agreed with the argument and eventually expunged exhibit PI from the record (pages 423-424 of the record of appeal). On this account it serves no purpose to discuss it in this appeal as correctly submitted by the learned Senior State Attorney. We also observed that, ground number 12 was abandoned by the appellants as per page 15 of their written submission to amplify the grounds of appeal, as such we shall not discuss it. Upon being invited to submit in support of the grounds of appeal in the supplementary memorandum of appeal, the 2n d appellant informed ii

the Court that the 1s t and 2n d grounds of appeal in the supplementary memorandum of appeal shall be addressed collectively, like wise the 3r d and 4th grounds of appeal. The appellant's complaints in ground No. 1 and 2 is centered on the delay which is two folds; one, delay to arraign the appellants to court for trial which they argued to be contrary to section 32 (1) of the Criminal Procedure Act, Cap. 20 R.E 2019 (now section 33 (1) of Cap. 20 R.E 2023) which demands for arraignment of the suspects to court within 24 hours after being taken into custody. Two, delay in preparing the charge sheet whereby he contended that, both delays were without cause and this creates doubts as to whether the offence was committed as alleged. In clarification, the 2n d appellant stated that, the 1s t, 2n d and 3r d appellants were apprehended and put in police custody on 7/9/2017, 09/09/2017 and 16/9/2017 respectively, but were all arraigned to Court on 24/10/2017 while according to the cited provision, they were to be taken to court within 24 hours since their apprehensions. He argued that, the delay indicates that the case was fabricated and justice was not done to them. He referred us to the case of David Zabron @ Lusumo vs. Republic [2023] TZCA 241 and Ramson Peter Ondile vs. Republic [2021] TZCA 84, both from TANZLII.

In his further clarification, the 2n d appellant contended that, apart from the delay to be arraigned before the court, there was further delay in preparing the charge. That according to record, the same was prepared on 16/12/2019 while the incident occurred on 05/09/2017 which according to him it further creates doubt as to whether the incident had ever occurred. Responding, Ms. Sekule submitted that, according to the appellant submission, it is true that the appellants were taken to court on 24/10/2017 and the charge read over to them on 16/12/2019. She however refuted that the delay was without reason. She clarified that, according to the testimony of PW3 at page 31 of the record of appeal, the incident was previously brought to court but for some reason, it did not proceed. Instead, the present case was filed. It was her argument that, the presence of a previous case was also stated by the 2n d appellant's submission that they were taken to court for the first time on 24/10/2017 and Ms. Sekule believed that, by that time, the charge has already been prepared as well. It was her argument that, under no circumstance can an accused arraigned to court without the charge being ready. Ms. Sekule went on to submit that, though the appellants were not taken to court within 24 hours, but the referred provision (section 33 (1)

of the CPA R.E. 2023) requires the arraignment to be done as soon as practicable for serious offences including armed robbery. According to Ms. Sekule, the soonest practicable date in the case at hand was 24/10/2017. As such, she contended; the complaint is without merit and beseeched the Court to dismiss the 1s t and 2n d grounds of the supplementary memorandum of appeal. We entirely agree with the learned State Attorney's argument that, though section 33 (1) of the CPA R.E. 2023 provides for the arraignment of a suspect within 24 hours as a general rule, but in exceptional circumstances like where the offence committed is serious, the suspect is required to be arraigned to court as soon as practicable. We further join hands with Ms. Sekule that, armed robbery is among the serious offences in our jurisprudence considering the stern jail term of 30 years it carries if one is found guilty. Coupled with the facts that, the suspects were numerous and scattered, for example the 3r d appellant was arrested in Tabora, we are of firm view that the delay to arraign them to Court was justifiable in the circumstances of this case. Again, we agree with Ms. Sekule that, there seems to be a case concerning the incident which was previously taken to court. This fact was divulged by PW1 at page 31 of the record of appeal when he was cross examined by the 2n d appellant as to why the money seized from the

2n d appellant's home had no Bank M tape as alleged. When responding he stated "... they had Bank M tape. We destroyed in the previous case". The fact was not countered and thus considered to be true. [See: Nyerere Nyague vs. Republic, Criminal Appeal No. 67/2010 (unreported). In the circumstance, the complained delay in preparing the charge which suggests that, the appellants were arraigned to court on 24/10/2017 without the charge being prepared is negated by the record because there was previously a case concerning the same incident as disclosed by PW3. Consequently, we find grounds number 1 and 2 of the supplementary memorandum of appeal meritless and dismiss them. The appellant's grievance on grounds number 6 of the memorandum of appeal together with grounds number 3 and 4 of the supplementary memorandum of appeal are centered on the admissibility of the cautioned statements of the 1s t and 2n d appellants (exhibits P3 and P6 respectively) which have 3 limbs:- In the 1s t limb which concerns ground number 6, the appellants contended that the cautioned statement of the 2n d appellant (erroneously typed as exhibits P3 instead of P6) was taken contrary to section 50 and 51 of CPA R.E. 2002 (now sections 51 and 52 of the CPA R.E. 2023). The argument was refuted by Ms. Sekule to which we agree with as we herein 15

explain: It is the testimony of PW5 that he recorded the 2n d appellant's statement on 9/9/2017 from 17.10 hours and finished around 18.30 hours (pages 42 - 43 and 84 of the record of appeal). The said testimony was confirmed by the 2n d appellant himself who testified as DW2 at pages 70 - 73 of the record of appeal that, he was apprehended on 09/09/2017 at his jewelry office around 9.00 am. That he was then taken to his house and a search was conducted before he was taken to police station where his statement was recorded on the same day. Further that, in the course of searching the house, he was found with some money totaling TZS. 7,514,000.00 which was seized by the police and a certificate of seizure was filled. Considering the incidents before he recorded his statement and that, he was taken to police station at around 16.30 hrs on 09/09/2017 (page 27 of the record of appeal) and the statement recorded at 17.10 hrs. on the same day, we are convinced that Section 51 and 52 of the CPA which requires a suspect's statement be recorded within 4 hours since taken to the police was not contravened as the statement was just taken just after 40 minutes since he was taken to the police station. In the 2n d limb, the appellants contended that, exhibits P3 was admitted during the enquiry process instead of the main case, and thus it was not part of the evidence in the case at hand and thus, it was wrong

to rely on it to convict the appellants. He referred us to the case of Fikiri Kalamji and Another vs. Republic, [2024] TZCA 864 TANZLII to bolster his argument. Further to that, the 2n d appellant went on to argue in the 3r d limb that, both statements do not show the provision of the law under which the same were certified and also that, the evidence therein was not corroborated despite being repudiated by the 1s t and 2n d appellants. He therefore beseeched the Court to find the grounds meritorious and allow the appeal. Responding to the 2n d limb, Ms. Sekule denied the allegation that exhibit P3 was admitted as evidence during the conduct of the enquiry. She contended that, the record shows that, the same was admitted after the closure of the defence case and the order to overrule the objection was given. She referred us to page 38 of the record of appeal for verification. As for the 3r d limb, She conceded that, the statements do not show the provision under which the certificate was effected but contended that, both the 1s t and 2n d appellants verified that, the statements belonged to them by stamping their thumbs and thus, the omission did not prejudice them. On the alleged non-corroboration of the contents of the statements (exhibits P3 and P6), Ms. Sekule referred us to pages 82 and 86 of the 17

record of appeal where exhibits P3 and P6 are found. She submitted that, both statements talked on the information the appellants got concerning the motor vehicle used to carry the money bears Reg. No. T327 G Y Make Toyota Alteza. This information was echoed by PW1 at page 11 of the record of appeal where he testified that, on the fateful date, he was driving a motor vehicle with Reg. No. T327 G Y Make Toyota Alteza. Going on to demonstrate that the statements were corroborated, Ms. Sekule submitted that, exhibits P6 at page 88 states that the 2n d appellant was arrested on 9/9/2017 while at his workplace and later brought to police station. The narration was corroborated by PW3 at page 27 of the record of appeal when he testified that, on 09/09/2017 they went to arrest the 2n d appellant at his jewelry shop and took him to the police station for investigation around 16:30 hours. Relying of those demonstrations, the learned Senior State Attorney concluded that, it is not true that the statements were not corroborated as alleged by the appellants. She thus prayed the Court to find grounds number 3 and 4 of the supplementary memorandum of appeal unmerited and dismiss them. Before addressing the complaints, we wish first to put the record proper that, the 1s t appellant's statement was admitted in evidence as exhibit P3 and not P2 as referred (page 78 of the records of appeal). 18

Going through the record of appeal, the proceedings as regards the complaint in the 2n d limb on the enquiry conducted following the 1s t appellant's objection to its admission in evidence depicts that, exhibit P3 was admitted after the closure of the defence case as correctly observed by Ms. Sekule. Further it is on record that, the trial court admitted the statement in evidence when composing its ruling after analysing the evidence adduced for and against the objection raised. (Page 38 of the record of appeal). The sequence of incidents on what transpired in court negates the allegation that the statement of 1s t appellant (exhibits P3) was admitted during the conduct of the inquiry. As such, the trial court was correct to act upon it in its decision. We acknowledge to be a procedural irregularity for the failure to indicate under what provision of the law the appellants' statements (exhibits P3 and P6) were certified which is the complaint in the 3r d limb. However, we join hands with Ms. Sekule's submission that, the irregularity did not prejudice the appellants in any way considering that they thumb stamped on the statements to acknowledge ownership and verify the contents therein. The law is long settled that procedural irregularity is only fatal if resulted in a miscarriage of justice to the

accused. (See: Flano Alphonce Masalu @ Singu And 4 Others vs Republic, [2020] TZCA 197. As regards, the appellants further argument on the absence of corroboration of their statements which was rebutted, we agree with Ms. Sekule that the argument is incorrect as demonstrated by the learned Senior State Attorney which we need not repeat them. In the premise, we find both grounds number 3 and 4 of the supplementary memorandum of appeal unmerited. Next, we proceed to consider grounds number 1 and 3 of the memorandum of appeal which attack the evidence of identification. In clarification, the appellants contended that, the said evidence was first, insufficient to ground conviction and thus it was an error on the part of the High Court to uphold the appellants' conviction. Second, that the identification parade was invalid as it was not proceeded by prior descriptions of the appellants by PW1 and cited the case of Rasul Amir Karan @ Juma and 3 others vs. Republic, [2020] TZCA 278 TANZLII wherein the Court ruled out that, the descriptions given by the witnesses therein were general and none of the police officers who testified stated that the eye witnesses provided the descriptions of the robbers.

In her response, Ms. Sekule refuted both complaints. Submitting against the first grievance, the learned Senior State Attorney argued that, PW1 managed to identify the appellants as the incident occurred around 4.00 pm, i.e. during the day light. Further to that, the distance between PW1 and the robbers was about 5 meters and the incident took about 5 minutes. She referred us to page 13 of the record of appeal for verification. Regarding the absence of the appellants' descriptions prior to the conduct of the identification parade, Ms. Sekule argued that, PW1 described the colour of skin of each of the appellants, their body physique, height and even the role each one of them played in the incident. She referred us to pages 12 - 14 of the record of appeal. She went on to submit that, PW1 proceeded and described the attire worn by the 1s t appellant when cross examined by him and that, he was the one who pointed a pistol on his head. She concluded that, on those bases, there was no mistaken identity of the appellants. Further to that, PW9 testified that, PW1 managed to identify all of the appellants at the identification parade. Ms. Sekule also argued that, apart from the descriptions given by PW1, the appellants' apprehensions were also facilitated by the information received by the police from an informer on 06/07/2017 concerning the culprits who were involved in the 21

incident as testified by PW4 at page 33 of the record of appeal. In fine, she concluded, the grievances in grounds number 1 and 3 are unfounded and prayed the Court to dismiss them for lack of merit. Going through the record of appeal, we join hands with Ms. Sekule's arguments that, the allegation on insufficient identification of the appellants and invalid identification parade are not true. Indeed, the factors for correct identification as enunciated in the case of Waziri Amani vs. Republic (1980) TLR 250 were in our view, met as we herein demonstrate: It was not disputed that, the incident occurred during the day light and took about 5 minutes. Besides the distance between PW1 and the appellants was about 5 meters. To cement our conviction that there was no mistaken identity, PW1 un-hesitantly stated the role each of the appellant played in the incident (page 13 - 14 of the record of appeal). Further to that, PW1 also in his testimony described the body physique, colour of skin, height of each of the appellant together with the attire the 1s t appellant worn at the scene. Notably, none of the appellants controverted the testimony of PW1 which we take to be an assurance of the veracity of his testimony. [See: Nyerere Nyague (supra)]. We understand that the appellants have cited the case of Rasul Amir Karan (supra) in support of their arguments, but we found it to be 22

distinguishable and we shall explain: in the case at hand, PW1 gave specific descriptions of each of the appellant together with the action each one of them did, which testimony was not controverted by the appellants as opposed to the general descriptions given by eye witnesses in the cited case. Besides, some of the testified police officers (PW7 and PW9) echoed the descriptions as were told by PW1 while none of them in the cited case stated to have told the descriptions of robbers. That apart, the appellants' apprehensions were further aided by further information the police got from an informer on 06/07/2017, that is just a day after the incident concerning the persons who were involved in the robbery as testified by PW9. The informer's information corroborated PW1 descriptions of the robbers he gave at the police station. Basing on that, we found grounds number 1 and 3 fail. We dismiss them. Coming to ground number 4 of the memorandum of appeal, the complaint is on the failure by the prosecution to tender as exhibits the motor vehicle with registration number T. 327 AJY, the motor cycle which is allegedly to have been driven by the 3r d appellant together with two helmets allegedly involved in the commission of the offence at issue. According to the appellants, the omission renders the case unproven to the required standard. They cited the case of Yunus Habib vs. Republic, [2018] TZCA 307 TANZLII to substantiate their arguments.

However, we wish to state right away that, the cited case is irrelevant to the appellants' argument since it discussed the consequence of failure to call material witness and not failure to tender an exhibit. In her response, Ms. Sekule conceded and we subscribe to the concession that, the items listed were not tendered in the trial court as exhibits. She however argued, and correctly so in our view that, non tendering of them did not prejudice the appellants in any way. This is because the offence the appellants were charged with was armed robbery which none of the items is needed to prove it. Besides, it is not always that failure or omission to tender a certain exhibit or instrument used in the commission of the offence as it happens in the case at hand is injurious to the prosecution case as seems to be argued by the appellants. [See: Sano Sadiki and Another vs. Republic, [2023] TZCA 17476 TANZLII]. We therefore find the complaint devoid of merit and we dismiss it. Conceding further to the complaint in ground number 11 that the alleged pistol used to threaten PW1 was not tendered in evidence as an exhibit in the trial court so as to ascertain if there was any threat exerted against PW1 by the 1s t appellant as testified by PW1, Ms. Sekule argued that, the omission not-withstanding, the evidence of PWl's was found to be credible and worth believing, thus relied on by the lower courts. As

such, she argued, the complaint is without merit and beseeched the Court to disregard it. When testifying, PW1 stated that, a pistol was pointed at his head by the 1s t appellant and threatened him that, he will shoot him if he would not let go the black bag containing the withdrawn money. It is also on record that, the said pistol was not tendered in the trial court as an exhibit. In fact, the record is silent as to whether the pistol was seized by the police or not. Nevertheless, as argued by Ms. Sekule and correctly so in our view, PWl's evidence was neither rendered unworthy nor his credibility dented by the said omission. It is on record that, both lower courts were satisfied that PWl's evidence was reliable, plausible and in harmony with other prosecution witnesses' evidence. On our part, we found nothing to question the concurrent findings of the two lower courts as regards the credibility and demeanor of PW1. It is trite law that, in a matter of findings based on the credibility and demeanor of the witness as the case for PW1 in this matter, the trial court is better placed to assess that since it has the advantage of seeing and hearing the witness. [See: Seif Mohamed El-Abadan vs. Republic, Criminal Appeal No. 320 of 2009 TANZLII]. The findings were upheld by the High Court in the case at hand. It is a cherished principle of law that, the 2n d appellate court should sparingly disturb the concurrent

findings of the two lower courts unless there is misapprehension of evidence resulting to unfair conviction. [See: Wankuru Mwita vs. Republic, Criminal Appeal No. 219 of 2019 (unreported)]. We wish to state without hesitation that, we found nothing to disrupt the concurrent findings of the two lower courts as far as the credibility of PW1 is concerned. We therefore find the ground without merit and we accordingly dismiss it. In ground number 10, the appellants complain that, the charge was defective for being in variance with the evidence as regards the amount of money involved in the transaction. The learned Senior State Attorney declined to address the ground as it was not discussed at the High Court, thus new and according to her, the same is centered on the amount of the money stolen which is a question of evidence. Though we agree that the issue is new, but we think it involves a question of law and therefore we are obliged to determine it. Before addressing it, we observed that, the appellants in their written submission to amplify this ground discussed on failure of the charge to disclose the time the robbery incident occurred and not the variance of the amount of money involved in the robbery as per the fronted ground. Considering that the written submission amplifies the grounds of appeal raised, we 26

wish to put it clear that, we shall not discuss the submission purports to amplify this ground and address the ground of appeal as it appears in the memorandum of appeal. According to the charge, the amount of money involved in the robbery incident was indicated to be TZS. 117,462,000.00. Our perusal in the record of appeal we observed that, PW1 testified to have presented two cheques at the bank for the purpose of cashing them and that he was given TZS. 117,462,000.00 (page 12 of the record of appeal). The given amount was corroborated by PW2, a bank officer who stated as follows at page 23 of the record of appeal: "He (PW1) brought cheques o f the total amount o f TZS. 117,462,000.00 for payment.... He was later paid his money and left". Looking at the evidence of PW1 and PW2, suffice to state that, there is no variance between the charge and the evidence on the amount of money involved in the incident. On that basis, the appellants complaint is a misconception as it is not supported by the record of appeal. Consequently, we dismiss it. Last is ground number 13 in the memorandum of appeal. The appellants complain that, the case was not proved beyond reasonable

doubt and thus it was wrong for the High Court to uphold the conviction against the appellants. Clarifying the appellants contended that, the prosecution grossly erred for failing to call material witnesses to support their case whom they mentioned to be; one, the Director of Leopard Tours to prove that his office issued the cheque totaling TZS. 117,462,000.00 alleged to have been robbed on the fateful day. Two, an officer working with bank M who could have testified to prove that, the said amount was withdrawn on that day by tendering a pay slip to clear what the appellants called "an obvious doubt"\w the prosecution case. In her reply, Ms. Sekule contended that the complaint is with no base. She elaborated that, the ingredients to prove the offence of armed robbery are three which she mentioned to be; one, theft, two, use of a dangerous or offensive weapon by the thieves against the person robbed at or immediately after the commission of the robbery, and three, the use of the dangerous or offensive weapon must be directed against a person so as to retain the stolen property. The learned Senior State Attorney argued that, all of the listed ingredients were proved by the prosecution witnesses. We join hands with her elaborations on this aspect as follows: That, the first ingredient was proved by PW1 who narrated how on the fateful day he was ambushed and robbed TZS. 117,462,000.00 at Impala round about when

heading to his office after withdrawing the said sum from the bank. PW2 further confirmed that, PW1 went to their bank and was handed over the said sum. Further to that, PW3 testified to have found the 2n d appellant with some money which had bank M tape (page 31 of the record of appeal) when they went to apprehend him and conducted a search into his house. Together with those pieces of evidence, the appellants' plan to rob PW1 and how the plan was implemented was further corroborated by exhibits P3 and P6. That apart, the police got information from an informer on the persons involved in the robbery incident. The information assisted in apprehending the robbers, some of them being the appellants. As regards the 2n d and 3r d ingredients, PW1 recounted that the bandits had a pistol and threatened to kill him if he refused to give them the black bag which contained the money. That he had no option than to oblige and they forcefully went away with the said sum. Analysing above pieces of evidence, the complaint that the prosecution did not prove the case beyond reasonable doubt has no base and is bound to fail. In the same vein, the appellants complaint that material witnesses were not called has again no base as the paraded witnesses were sufficient to prove the offence the appellants were charged with. The amount withdrawn at the bank which was eventually robbed was proved 29

by PW1 and PW2, the operational Manager of Bank M. As such, calling the Director of Leopard Tours would not have added any evidential value and similarly, failure to call him did not prejudice the prosecution case. The complaint therefore lacks merit and accordingly we reject it. In fine, we find all of the grounds fronted unmerited and we are constrained to dismiss the appeal in its entirety as we hereby do. DATED at DODOMA this 19th day of September, 2025 R. K. MKUYE JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The judgment delivered this 19th day of September, 2025 in the presence of the Appellants in person, Ms. Janeth Alex Masomi learned Senior State Attorney for the Respondent and Mr. Oscar Msaki Court Clerk via Virtual Court; is hereby certified as true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL