James Abraham Mnyambwa vs Republic (Criminal Appeal No. 442 of 2022) [2024] TZCA 1286 (13 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PODOMA fCORAM: LILA. 3.A.. MURUKE, 3.A. And MDEMU, 3.A.) CRIMINAL APPEAL NO. 442 OF 2022 JAMES ABRAHAM MNYAMBWA......................................................APPELLANT VERSUS THE REPUBLIC ............................................................................ RESPONDENT (Appeal from the judgment of the High Court of Tanzania, at Dodoma) f Masaiu, 3.1 dated the 4th day of July, 2022 in Criminal Appeal No. 119 of 2021 HIDGMENT OF THE COURT 3rd & 13th December, 2024 MDEMU, 3.A.: The appellant James Abraham Mnyambwa was arraigned in the District Court of Dodoma for the carnal knowledge of "GJ", without her consent. We have disguised her name for identity purposes, thus we shall refer her across as the victim or PW1. The victim, who was a student of Mpwapwa Teachers College, met the ordeal in the night of 8th January, 2021, within the City of Dodoma post to the completion of her journey she commenced from Tabora to Mpwapwa.

The background of the case may be stated briefly as hereunder: On the fateful day, the victim dropped at CBE mini bus stand at about 22:00 hours. She commenced her journey from Tabora heading to Mpwapwa Teachers College, in Mpwapwa District. After disembarking in FIDEKO Bus driven by Mussa Ramadhani Sita (PW4), the victim picked a tricycle (Bajaji) to Nanenane. She met two other men as co passengers who dropped at Nanenane leaving the appellant and PW1. They proceeded to Job Ndugai Market, only to find Ngasere bus had shortly left for Mpwapwa. It is alleged that, they reached at Ndugai Market, and then the appellant charged the victim TZS 15,000.00. being fare for the trip, but appeared exorbitant to PW1. In the course of bargaining, it is alleged that, the appellant took a different direction which ended in a bush. The appellant then undressed the victim's underwear and his, then inserted his penis in PWl's vagina. She was in her menstrual period. The appellant repeated the exercise almost thrice. Before he took the second round, the victim requested for a short call. It seems the appellant accompanied her. It is at this hour when PW1 managed to identify the registration number of the said bajaji as MC 973 CFR, red in colour. As it was getting daybreak, the appellant took her to the bus stand for her trip to Mpwapwa. Before they parted, the duo exchanged mobile

phone numbers, perhaps for further correspondences. It is said, the appellant also asked for forgiveness to what he did to PW1. Soon after she was dropped, and before the appellant left, the victim requested one security guard employed by SUMA JKT to arrest the appellant, but he refrained as the victim had not raised an alarm prior. She was, instead, directed to the traffic police. The latter, it is said, took her to a commuter transport (daiadala) heading to the city centre. She then reported to Afande Ally, at Dodoma Central Police Station narrating what had happened. Afande Ally appeared to have recorded her statement, issued a PF3 and then PW1 went straight to Dodoma Referral Hospital, where she was attended by Dr. Johnson Keneth Ngalya (PW2). PW3 one Parason Wilson, another medical doctor serving at Kondoa, was also present when the victim reported at the Police Station, and subsequently accompanied her to Dodoma hospital. PW3 opined in the PF3 tendered as exhibit PI that, the victim was in her menstrual period and had sustained some bruises in her vagina. It is further alleged that, the appellant was arrested by G. 3745 Police Constable Juma (PW5) on information supplied by an uncle or the victim's brother-in-law (PW3). On 20th January, 2021 Assistant Inspector Getrude Byejwe (PW6) conducted an identification parade, in which, it is

alleged that, the appellant was identified by the victim to be the one who raped her. The identification parade register was thus admitted in evidence as exhibit P3 for that matter. With this evidence, the trial court found the offence of rape created under sections 130 (1) (2) (a) and 131 (1) of the Penal Code to have been proved. It thus convicted and sentenced the appellant to serve a custodial sentence of thirty (30) years. He nonetheless appealed unsuccessfully to the High Court. In dismissing the appeal, the High Court, at pages 96 and 97 of the record of appeal observed the following: "There was proof o f penetration as a mandatory requirem ent o f section 130 (4) o f the Pena! Code [Cap 16] There was aiso evidence that PW1 was carnaiiy known without her consent as the use o f force was proved in the tria l court, there was aiso proof that the appeiiant is the one who carnaiiy known PW1 without her consent by using force and threatening her with a machete as testified in the tria l court. The appeiiant was unmistakenly identified by PW1 throughout the time they spent together and at the identification parade as testified by PW6. There were no grudges between the victim o f the crime and the appellant, hence the victim 's evidence credibility against the appeal as so rightly subm itted by the respondent Republic. Even if the impugned identification parade hadn't been there, s till the

unmistaken identity o f the appellant by the victim o f crime (PW1), in the m aterial night, could be satisfactory fo r convicting the appellant o f the sexual offence ." Again, the appellant was aggrieved by the foregoing findings of the first appellate court. He is before us in a second appeal raising fifteen (15) grounds, which we are unable to reproduce them verbatim, and instead, they are condensed into the following grounds of complaint: one, that the memorandum of agreed facts was not read to the appellant. Two, the appellant was not supplied with statements recorded under sections 9 (3) and 10 (3) of the Criminal Procedure Act, Cap. 20 (the CPA). Three, that the evidence of visual identification is a suspect one. Four, the evidence of identification parade was illegal. Five, there is an unexplained delay in arraignment of the appellant at the trial court. Six, deficiencies prevalent in the prosecution evidence making the charge unproven. On 3rd December, 2024 we heard the appellant unrepresented fending his appeal. He generally resisted taking part in the rape of the victim, thus urged us to consider his grounds of complaint and release him accordingly. On the side of the respondent/Republic, appeared Ms. Rachel Balilemwa, learned Senior State Attorney and Ms. Rose Ishabakaki, learned State Attorney. They outrightly opposed the appeal. 5

Replying on failure to read the memorandum of agreed facts during the preliminary hearing in terms of section 192 (3) of the CPA, Ms. Balilemwa conceded, but cited to us the case of John Mohamed v. Republic (Criminal Appeal No. 144 of 2021) [2024] TZCA 560 (15 July 2024; TanzUI) stating that, the occasioned irregularity is fatal and vitiates proceedings but did not prejudice the appellant. The appellant in rejoinder simpiy reiterated what he submitted in chief that he be released basing on the grounds he had raised because he did not rape the victim. On our part, and as conceded by the learned Senior State Attorney, the record of appeal at page 8 shows that, the drawn memorandum of agreed facts was not read to the appellant. This certainly, contravenes one of the mandatory requirements of section 192 (3) of the CPA which require the memorandum of matters agreed to be read and explained to the accused in a language best understood to him at the conclusion of preliminary hearing. The other requirement we note in that section includes, the duty of the court to prepare such memorandum of agreed facts and to ensure it is signed by the accused and his advocate, if any, and the public prosecutor in attendance. However, looking at the memorandum of agreed matters appearing at page 8 of the record of appeal, the parties only agreed on

personal particulars of the appellant, his arrest, the interrogation by the police detectives and finally, his arraignment before the trial court. We therefore agree with the learned Senior State Attorney that, such an omission did not affect the entire proceedings in the trial of the appellant, which he duly participated. See M.T. 7479 Sgt. Benjamin Holela v. Republic [1992] T.L.R. 121. The appellant was therefore not prejudiced by the omission. See John Mohamed v. Republic (supra). As to the complaint of the appellant regarding violation of section 9(3) and 10(3) of the CPA, the learned Senior State Attorney conceded that, the appellant was not supplied with such statements. She however argued that, the appellant was not prejudiced because witnesses appeared in the trial court and he was able to cross examine them. She made, in this regard, reference to the case of Elibariki Naftal Mchomvu v. Republic (Criminal Appeal No. 332 of 2019) [2022] TZCA 606 (5 October 2022; TanzLII). As we stated above, the appellant simply urged us to consider this ground meritorious as coached in the memorandum of appeal and release him forthwith. On our part, we note, and as conceded by the learned Senior State Attorney that, the appellant was not supplied with statements made under section 9 (3) of the CPA. As we stated in Elibariki Naftal Mchomvu v.

Republic (supra), it is important for the court to cause a copy of that statement to be given to the appellant because it is a key tenet guaranteeing a fair trial. However, Ms. Balilemwa urged us to consider if, in the circumstances of this case, the said omission caused failure of justice on the part of the appellant. We find substance in this observation because, the appellant was able to cross examine the victim and also did manage to defend his case at his trial, notwithstanding that he was not in possession of the statement of PW1. This test was stated by this Court in Elibariki Naftal Mchomvu v. Republic (supra) at page 11 that: 'W e agree with Ms. Mlenza that he utilized fu lly the opportunity to cross examine the complainant as well as other witnesses, which suggests that he was able to m arshal a formidable defence despite not having been served with a copy o f the complainant statement. Accordingly, we hold that, the error did not occasion any failure o fjustice justifying our interference. It is therefore curable under section 388 o f the CPA. On that basis, the second ground o f appeal is bereft o f m erit We dism iss it." Next is the appellant's complaint on visual identification and the identification parade. He faults the two courts below to base the conviction on the evidence of visual identification in the absence of any description by PW1. He also faults the identification parade evidence for

being illegal. Ms. Balilemwa replied generally that, the appellant was properly identified by PW1 because they stayed together for almost the whole night. She however conceded that, PW1 failed to describe the appellant in the manner she did in the identification parade. That notwithstanding, Ms. Balilemwa was still convinced that, the evidence of PW1 points a finger to none other than the appellant only. We begin to resolve this ground of complaint by highlighting the clear and settled position of the law as it stands today that, the evidence of visual identification is the weakest and unreliable. Courts should not rely on such evidence unless all possibilities of mistaken identity are eliminated. The courts should also be satisfied that, such evidence of visual identification is watertight. That is to say, the identifying witness should be able to provide a detailed description on the assailant's identity. See Waziri Aman v. Republic [1980] T.L.R. 250. In the instant case, we note that; one, there is nowhere in the record of appeal PW1 made any detailed description of the person who picked her at CBE sub bus station, took the route to Nanenane, then to Job Ndugai Market and thereafter a turn to the bush where they stayed for the whole night to daybreak. After daybreak, the assailant took her

again to Job Ndugai Market and they then exchanged mobile phone numbers. Two, according to the record of appeal, at page 14, PW1 reported at the CRO, Dodoma Central Police Station to one Afande Ally. The latter according to PW1, recorded her statement and also issued a PF3. It is glaring who was described to Afande Ally, taking into account that, the said Afande Ally was the first person to whom PW1 reported the incident. PW1 did not describe the assailant either. Worse still, Afande Ally was not procured for testimony at the trial court. We think both the trial and first appellate court missed a point in the application of the principle stated in Waziri Aman (supra) and restated in numerous post Court's decision regarding the duration the witness stayed with the assailant, being fundamental in evidence of visual identification. We think the longer duration stated in this case, should have assisted PW1 to describe properly the person who raped her. The first appellate court at pages 93, 94 and 95 of the record of appeal recorded that, PW1 and the appellant were together from 2200 hours on 8th January to about 0600 hours on 9th January, 2021. Yet, PW1 never described the appellant. We think this duration was sufficient and long enough for PW1 to be able to describe who was that person she stayed

with for quite long and thereafter raped her, if at all was the appellant. He was a stranger definitely. She just met her at the CBE sub bus stand. It is not enough, in our view, to merely state the duration alone and leaving aside the description part of the assailant. In Raymond Francis v. Republic [1994] T.L.R. 100 this Court observed the following regarding identification of a stranger: ’ 7/7 every case in which there is question as to identity o f the accused, the fact o f there having been a description given and its terms o f that description given are m atters o f the highest importance o f which evidence ought always to be given, first o f ail, o f course, by the persons who gave the description and purport to identify the accused, and then, by the person orpersons to whom the description was given." In the instant appeal, we said, and worthy repeating that, the appellant was a stranger to PW1. It was therefore necessary for the latter to describe, for instance, the appearance, colour, height, and any peculiar mark of identity of the appellant. See Bushiri Amiri v. Republic [1992] T.L.R. 65. She never made any attempt towards such description of the appellant. This, in our view, would provide assurance if the appellant is the person who raped her because, the appellant does not dispute to pick her at CBE, but he maintained to have dropped her and they agreed that,

he would pick her the next morning to Job Ndugai Market. Page 42 of the record of appeal is a revelation to this fact as stated hereunder: "/ got three passengers two (2) m asai (man and woman) and another woman/lady. I told them 1000/= shs each. I started leaving but I was stopped by the com plainant She wanted to board and she sat with me a t the driver seat So, we went up to Ilazo, the lady dropped off, so the com plainant returned to the back seat Then, as we were going, she asked where Mpwapwa buses stop at. I told her that they park a t Job Ndugai Market, but by then there are no people. I advised, sh e goes to th e B u s Stand. She asked fo r m y phone num ber so th a t in th e m orning, I rush h e r to the stand, I gave the num ber, a t the stan d, th e y a ll dropped th ere a t, a n d I le ft next day, a t about 14:00 hours." [emphasis supplied] What essentially, we note is that, the prosecution failed to lay down evidence to prove who was with the victim after she was dropped at the bus stand by the appellant. Unless the victim described that, consistently and all through, she was with the appellant from when she was picked at CBE to Nanenane, turned to Job Ndugai Market, then proceeded to the bus stand, but eventually, they ended up in the bush where she was raped to daybreak. Thereafter continued to Job Ndugai

Market and instead of picking a bus to Mpwapwa, she decided to rush to Dodoma Central Police Station where she reported the matter. There is no better evidence. It is glaring. We said above, and better reemphasize here that, PW1 did not describe the appellant at the police when she reported to Afande Ally. We think describing the assailant to whom incident was first reported is fundamental in evidence of visual identification. See Ibrahim Eston v. Republic (Criminal Appeal No. 75 of 2021) [2024] TZCA 5116 (5 July 2024); TanzUI). As it was not done in this case, our view is that it renders the credibility of PW1 questionable. See Jaribu Abdala v. Republic [2003] TLR 271. We now turn to consider the evidence of identification parade. This should not detain us much longer than necessary. In the foregoing analysis on visual identification, we observed that PW1 never described the appellant. The question we are asking ourselves is whether identification parade was necessary. Section 60 (1) of the CPA officiates the holding of identification parade ordinarily to ascertain whether a witness can identity a person suspected to have committed the offence. This, in our view, presupposes that the identifying witness had prior described the assailant. In Gwisu Nkonoli & . Three Others v.

Republic (Criminal Appeal No. 359 of 2014) [2015] TZCA 432 (1 June 2015;TanzaLII), the Court observed that: "On our part, we jo in hands with the learned Senior State Attorney that this appeal is meritorious. First, we fu lly agree with both the learned Senior State Attorney and the appellants that it is necessary to give a detailed description o f a suspect before an identification parade is conducted." In the instant appeal, at page 15 of the record of appeal, PW1 described the appellant at the identification parade as follows: "I looked a t the youths'lined up. They were a ll tall, thin and lig h t skinned like the accused. A s I had seen him a t the bushes in the lighting and the bus stand light. I remember the morphology o f his head (longish) and he has a m ark under his eyes (like sw ollen)" As we said earlier, the victim did not provide any prior description of the appellant. She described him for the first time in the identification parade. As stated in Gwisu Nkonoli & Three Other v. Republic (supra), the appellant's description ought to have been given by PW1 prior to the holding of the identification parade by PW6. It was not proper therefore for the two courts below to base the conviction on the evidence of identification parade.

Reverting to the grounds of complaint on the deficiencies in the prosecution evidence, arrest of the appellant and unexplained delay in the arraignment of the appellant at the trial court, the learned Senior State Attorney began her submission regarding arrest of the appellant. She was of the argument that, the appellant was arrested on 9th January 2021 and had his first arraignment in the District Court of Dodoma on 8th February, 2021. She argued that, it is silent in the evidence on record as to what happened to the appellant but to her argument, it was reasonable because, section 32 of the Criminal Procedure Act, Cap. 20 require the suspect be arraigned in court as soon as practicable. Regarding the complained deficiencies prevalent in the prosecution case, Ms. Balilemwa did not comprehend any. She submitted on the following points to cement that the prosecution case was proved to the hilt. First, PW1 explained how the appellant took her from CBE and raped her in the bush. She later reported the matter to police station where she was given a PF3(exhibit PI). According to PW2 who examined her clinically, the victim was found to have bruises in her vagina which, to her, is evidence of penetration. She added that, the victim did not consent to sexual intercourse. It was her further submissions that, reading the evidence of PW1 from pages 10 to 16, the explanation offered

by the victim points to none other than the appellant to have raped the victim. She thus trusted this evidence to be the best in sexual offences and cited to us the case of Seleman Makumba v. Republic [2006] T.L.R. 384. On that account, she found the conviction and sentence met to the appellant by the two courts below was proper. She consequently urged us to hold so and dismiss the appeal for want of merits. In rejoinder, as was rejoined in other grounds, the appellant briefly maintained that, he did not take part in the rape of the appellant thus reiterated his being released from custody. In this ground of complaint, the main concern of the appellant which calls for our determination is whether there are deficiencies in the prosecution case warranting it improper to base the conviction. We should begin with the arrest of the appellant. It is not disputed that the appellant was arrested on 9th January, 2021. It is PW5 who arrested him on the information from an uncle or PW3. It is not clear if the said uncle is PW3, the brother-in-law of the victim, because he also took part in the arrest. It is on record further that, PW3 was given the mobile phone number of the appellant by the victim the same day the victim was treated in the hospital. The said number, according to the record, was given to Afande Ally by PW3 instantly. Surprisingly, the police had to wait until the uncle

or PW3 to deliver information regarding that arrest. Did PW1 also informed Afande Ally regarding the mobile number of the appellant and or the registration number of the bajaji? We think it is important to have a reflection on the following for a better understanding: first, Afande Ally would tell, what actually the victim reported. We are saying so because, in the PF3 (exhibit PI) appearing at page 48 of the record of appeal, PW1 reported two incidences, that is, rape and unnatural offence. On the other hand, PW2 who made clinical examination is silent on the side of unnatural offence, both in exhibit PI and in his oral evidence. Second, Afande Ally would also tell if the victim described the appellant. We discussed this item at length in the ground relating to visual identification. Third, Afande Ally would explain if, in the information he received from PW1, information relating to registration number of bajaji and the mobile phone number of the appellant was inclusive. Fourth, Afande Ally definitely has the first paint on the physical appearance of the victim. That information is in the evidence of PW2 who conducted clinical examination and another medical doctor (PW3), brother-in-law to the victim. The two medical practitioners testified that, the victim had a swollen left eye, torn and muddy clothes and bruised legs. Fifth, PW3 received information from his mother-in-law in the morning of 9th January, 2021 while at home.

He thus rushed to the Central Police Station where he met PW1 with Afande Ally. In his sworn evidence, his work station is at Kondoa. It is not known if the residence of PW3 is at his work station at Kondoa or within Dodoma City when he received such information. It is also not known if PW3 was at Kondoa or within Dodoma City. We need not speculate on this. Sixth, in,, the evidence of PW7, it seems the appellant was interrogated and confessed to have raped the victim. PW7 is however silent if the interrogation was reduced into a cautioned statement. The appellant, on the other hand, blamed the prosecution for not tendering the said cautioned statement. We also wonder, if the version of PW7 that the appellant confessed and that such confessions was reduced into writing is a true account, then the reason for not tendering it in evidence that caution statement raises unanswered endless questions. Seven, according to PW5, the arresting officer, the appellant was arrested because PW1 identified the registration number of the bajaji which, as PW1 testified, was MC 973 CFR. On the other hand, Athuman Juma Pambuga (PW8) who testified to be the employer of the appellant, entrusted him with bajaji with registration number MC 974 CFR. On that note, the evidence is therefore clear that the appellant's bajaji he had in the material night is registered MC 974 CFR. The prosecution therefore

should have led evidence to prove not only the owner of a bajaji registered MC 973 CFR, but also if at all it exists. PW4, FIDEKO trans bus driver who testified to have assisted the victim to hire the said bajaji, simply said it was red in colour. He did not explain its registration number. We think the foregoing deficiencies is a revelation that, the appellant was not identified to have taken part in the rape of the victim. We are alive of the legal principle that, this Court rarely interferes with the concurrent findings of facts by two courts below unless on misdirection or non-directions leading to miscarriage of justice. See, for instance, in Ally Manono v. Republic (Criminal Appeal No. 242 of 2007) [2010] TZCA 22 (26 February 2010 TanzUI) and in Harban Haji Mosi and Another v. Omari Hilal Seif and Another [2001] T.L.R. 409. In the instant appeal, and for the foregoing, we are constrained to interfere. We hold further that; such deficiencies have created doubt in the prosecution case making it unproven. In the final analysis, we are of the view that the prosecution case was not proved beyond reasonable doubt. For that reason, we allow the appeal. The conviction on the offence of rape is thus quashed and the sentence of thirty (30) years imprisonment is accordingly set aside. Our

final order is for the release of the appellant from custody, save for when he is lawfully held. DATED at DODOMA this 13th day of December, 2024. S. A. LILA JUSTICE OF APPEAL Z.G. MURUKE JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Judgment delivered this 13th day of December, 2024 in the presence the Appellant in person and Ms. Rose Ishabakaki, State Attorney for the Respondent/Republic is hereby certified as a true copy of the original. W. A. HAMZA D E P U T Y REGISTRAR COURT OF APPEAL