Kanga Nyamanche Gaini and 2 Others vs Republic (Criminal Appeal No. 59 of 2021) [2024] TZCA 1277 (13 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA ( CORAM: WAMBALI J.A.. MAIGE. J.A. And RUMANYIKA. J.A.l CRIMINAL APPEAL NO. 59 OF 2021 KANGA NYAMANCHE GAINI .......................................... 1 st APPELLANT TINI NYAMANCHE GAINI .............................................. 2N DAPPELLANT MANG'ERA NYAMANCHE GAINI ..................................... 3 rd APPELLANT VERSUS THE REPUBLIC................................................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Musoma) (Kisanva, J.^ dated the 11th day of December, 2020 in Criminal Session Case No. 43 of 2020 JUDGMENT OF THE COURT 29th November & 13th December, 2024 MAIGE. J.A.: A tragic incident occurred at Kanokwe village within Serengeti District in Mara Region on 22n d July, 2018 which claimed the life of one Zabron Turuka (the deceased). He was, on the night, sleeping with his wife Sumahi Zabron Turuka (PW1) together with their two young children in a small round mud-walled house with a curtain in between to separate their bed from that of their children. Suddenly, three persons broke into the house through the door and stabbed the

deceased on various parts of his body. By the aid of solar light, PW1 was able to recognize them as the appellants herein. The third appellant was armed with an axe, the second appellant with a panga and the third appellant was unarmed. Despite being forcibly restrained by the second appellant so to do, PW1 managed to get outside the house and raised an alarm. In reaction, one person whom she could not see, covered her mouth with his hands, and, therefore, she stopped so to do. She then heard one of the bandits saying " Thobias twende tumemaliza" after which all of them disappeared. A meanwhile after, Julius Turuka (PW5) and Marwa, both the sons of the deceased, appeared. PW5 testified that, after arriving at the scene of the crime, and, upon being informed by PW1 that the deceased had been stabbed by the appellants, he got into the house and found the deceased lying down with multiple cut wounds. Though in difficult, the deceased was able to reveal to him that " mwanangu vijana wa Nyamanche" and finally, "wamenimaliza mwanangu." PW5 and his brother Marwa Zabron Turuka took the deceased to the hospital. On their way, however, they realized that he had already expired, and, therefore, returned his body to the scene of the crime. At that time, PW5 notified his brother Bosco Zabron (PW4) who was residing in Tarime about the incident through the mobile phone of the deceased.

On 23r d July, 2018 at around 1:00 am, the village chairman Mwita Ryoba (PW2), came at the scene of the crime having been notified of the incident by the hamlet chairman one Thobias Nyamanche. Soon thereafter, many villagers gathered at the scene of the crime and started tracking the footsteps of the bandits which led them to the residences of the appellants. Upon the incident being reported to the police, some policemen, including G. 8118 DC Washa (PW6), visited the scene of the crime and found a gathering of people including PW1 who disclosed to them that it was the appellants who murdered the deceased. Basing on that information, they traced the appellants at their homes and found them absent but they seized a panga and axe which were found in the house of the second appellant. They had blood stains according to PW6. The dead body of the deceased was taken to the hospital where it was examined by Albert Kasanga Mnalime (PW3) on 24th July, 2018 in the presence of, among others, PW5. As per the post mortem examination report (exhibit PEI), the dead body of the deceased was found with "multiple cuts on the face, scalp and trunk". The report revealed that the cause of death was "excessive bleeding." In accordance with PW6, the first and second appellants were arrested at Makore area in Korogwe, Tanga Region on 2n d December, 2018. They were incarcerated at the Mombo police station and then

Korogwe police station until on 31s t March, 2019 when they were conveyed to Mugumu police station where their cautioned statements were recorded. The third appellant was arrested on 3r d May, 2019 at Itununu village and taken to Mugumu police station. From the substance of the evidence as afore stated, the appellants together with one Thobias Chacha @ Gaini whom was acquitted, were charged, at the High Court of Tanzania at Musoma (the High Court) with the murder of the deceased contrary to sections 196 and 197 of the Penal Code. In their defence, the appellants and each of them denied the charge and presence at the scene of the crime at the material time. The first appellant (DW3) testified that, on the material day, he slept at his home with his wife which is not far from the scene of the crime. He heard an alarm being raised and, soon thereafter, his brother Mwita Nyamanche asked him to go together to the scene of the crime but he was unable to do so as he was sick. That, when his wife went there in the morning, he heard a rumor that the first appellant was involved in the murder of the deceased. He testified further that, on the same next day, his house as well as those of other appellants were destroyed by fire in connection to the incident. To rescue his life, therefore, he went to Korogwe where

he was subsequently arrested and charged with the offence under discussion. The second appellant testified as DW5 and his wife Christina Tini testified in his support as DW6. He said, on the material day, he, together with DW6 spent the whole night at the home of his father-in- law where they were attending a ceremony. When he went back home on the next day, he found his house already destroyed by fire and he was told that, it was the relatives of the deceased who were responsible therefor. That, before he left to Korogwe where he was subsequently arrested in connection to the incident herein, he had stayed in the village for three months. The third appellant (DW7) testified that he was not at the village on the material date. He was at Kichango village where he had been staying since 2016. He said, he was arrested at Itununu village on 1s t day of May, 2019 in connection to cattle theft. He was afterwards arraigned at the trial court in connection to the murder of the deceased. In its judgment, the High Court found that the appellants were correctly identified. It believed the visual identification evidence of PW1 to be watertight enough as to leave no possibility of mistaken identification. In reaching to such a conclusion, the trial court considered the distance PW1 was in and the time she spent while in

observation of the appellants; the fact that she had known the appellants before; the intensity of the solar light at the scene of the crime; and her ability to disclose the names of the suspects at the earliest possible time. It, therefore, convicted the appellants with the offence and sentenced them to death by hanging each. Being aggrieved, the appellants have lodged the instant appeal. In the substantive memorandum of appeal, the appellants have raised three grounds and in a supplementary memorandum of appeal which was filed later on, two grounds. However, during hearing, the second ground in the substantive memorandum of appeal and the first ground in the supplementary one were abandoned and the following four grounds in both the memoranda remained: First, the appellants were not properly identified; Second, the appellants' defence was incorrectly rejected; Third, the case against the appellants was not proved beyond reasonable doubt; and Fourth, the evidence of PW3 and exhibit PEI were improperly relied upon. At the hearing, the appellants were represented by Mr. Leonard Elias Magwayega, learned advocate while the respondent Republic by Ms. Shose Naiman, Ms. Janeth Kisibo and Mr. Charles Kagirwa, all learned Senior State Attorneys.

Mr. Magwayega, having adopted the written submissions filed earlier on, started his submissions with the fourth ground which faults the trial court's reliance on the evidence of PW3 which was received without due compliance with the mandatory requirement of section 289 (1) of the Criminal Procedure Act (the CPA). He submitted that, as the substance of the evidence of the said witness was not read out and explained to the appellants during committal proceedings, PW3 was incompetent to testify and produce the documentary evidence in exhibit PEI. He thus urged us to discount the oral testimony of the said witness and exhibit PEI. As we expected, Ms. Naiman conceded right away that, in as long as such a requirement was not observed, both the oral testimony of PW3 and the documentary evidence he produced into evidence (exhibit PEI), were improperly admitted and should be discounted from being relied upon. We entirely agree with the concurrent submissions of the counsel on this point because, the substance of the evidence of PW3 having not, as the record of appeal speaks, been read and explained to the appellants in terms of section 246 (1), (2) of the CPA, and there being no any written notice in terms of section 289 (2) and (3) of the CPA, PW3 was precluded from giving testimony during trial. In law, 7

therefore, his evidence was legally unreliable and should be excluded from the evidence. See for instance, Sita James v. R (Criminal Appeal No. 469 of 2020) [2024] TZCA 25 (12 February 2024; TANZLII), Mawazo Mohamed Nyoni Pengo & Others v. R (Criminal Appeal No. 184 of 2018) [2021] TZCA 483 (16 September 2021; TANZLII) , Hamisi Meure v. R [1993] TLR 213 and Kegokora Jackson Kegokora v. R (Criminal Appeal No. 57 of 2021) [2024] TZCA 1204 (6 December 2024, TANZLII). The fourth ground is thus allowed. Consequently, the oral evidence of PW3 and the documentary evidence in exhibit PEI are hereby excluded from the evidence. We now proceed with the remaining grounds of appeal which, in view of the rival submissions, raise one pertinent issue namely, whether the case against the appellants was proved beyond reasonable doubt. In his submission, Mr. Magwayega doubted the credibility of the visual identification evidence of PW1 for being contradictory in material respects. The story in her evidence, he clarified, differs with what she narrated to the police and other witnesses soon before the incident in terms of the number of the bandits she identified at the scene of the crime, the weapons they were in possession of and the words which the deceased allegedly uttered before his death. The evidence was also different, he submitted, from her witness statement which was used

during committal proceedings. We were advised to be guided by the principle in Shaban Daud v. R, Criminal Appeal No. 28 of 2001, (unreported) as we assess the credibility of such evidence. It was submitted further that the respective evidence was improbable as it suggests that the incident took just about 3 seconds which was too short for positive identification considering her evidence on cross examination that, she was frightened when the bandits broke into the house and that, there was a curtain between their bed and that of the children. The counsel also doubted the intensity of the solar lump in aid of which PW1 allegedly identified the appellants by recognition, which she said, she purchased at the consideration of TZS 15,000.00. The counsel doubted if such kind of a lump could produce a bright light for more than six hours as suggested in the prosecution evidence. The evidence on the death of the deceased, it was further submitted, was highly suspicious on account that, while the information and the evidence suggest that it occurred on 22n d July, 2018 at 23:00 hours, the examination of the body of the deceased was made on 24th July, 2018 at 00:00 hours and the post mortem examination report suggested that the death occurred 12 hours before. This, it was submitted, raises a reasonable doubt if what was examined was the

dead body of the deceased. The tracing of the footsteps of the deceased after the incident, it was further submitted, raises a reasonable doubt if at all the appellants were named as suspects soon after the incident. On the appellants' defence of alibi, it was submitted in the first place that, the trial Judge wrongly applied the law by shifting the burden of proof to the appellants. Relying on a Kenyan decision in Jane Wanjiru v. R [2006] KLR which we followed in among others, the case of Richard Otieno @ Gulo v. R, Criminal Appeal No. 367 of 2018 (unreported), it was submitted that, the prosecution was in law responsible to, when the defence was raised, prove beyond reasonable doubt that, the respective defence was false. It was submitted, in the second place that, the trial court was wrong in not giving weight to such evidence based on the incredible and improbable visual identification evidence of PW1 and without due observance of the principle in Goodluck Kyando v. R. [2006] T.L.R. 363 that, every witness is entitled to credence unless there are good and cogent reasons for not believing him. In conclusion, therefore, it was submitted that, the case against the appellants was not proved beyond reasonable doubt. 10

In response, Ms. Naiman submitted that, PW1 correctly identified the appellants by recognition and her evidence left no possibility of the identification being mistaken. She gave six reasons to justify her claim. First, PW1 was just five meters from the appellants which allowed her to positively identify them. Two, her evidence on intensity of the solar light was very clear. Three, it was not in dispute that the appellants were known to her before as her fellow village mates. Four, she disclosed, soon after the incident, the identities of the appellants to other persons. Five, the trial Judge assessed her evidence and found it credible. Six, the appellants disappeared after the incidence, a conduct which is inconsistent with their innocence. It was submitted further that it is not always, as held in Goodluck Kyando v. R (supra) that, wherever there is a threat, a witness will be unable to identify a suspect. The learned Senior State Attorney was in disagreement with the proposition for the appellants that, their defence was incorrectly rejected contending that, despite no being preceded by a notice in terms of section 194 (4) of the CPA, it was duly considered and correctly rejected in so far as it did not raise any reasonable doubt to the visual identification evidence of PW1. 11

We have duly considered the rival submissions in respect to the issue under consideration. We shall determine hereunder if the case was proved beyond reasonable doubt. It is common ground that, the conviction of the appellants was based on visual identification evidence of PW1. It is well settled that such kind of evidence is infrequently mistaken. It can, therefore, not be relied upon to sustain conviction unless it is so credible and probable that it leaves no any reasonable possibility of mistaken or fabricated identity. There are numerous consistent pronouncements of the Court to that effect. It would suffice, for the purpose of this decision to cite the case of Philimon Jumanne Agala @ J4 v. R (Criminal Appeal No. 187 of 2015) [2016] TZCA 278 (22n d October 2016, TANZLII) where was said: "Eyewitness visual identification evidence though relevant and admissible, should be acted upon cautiously after the court has first satisfied that such evidence is watertight and all possibility o f mistaken identity or fabrication have been eliminated." We also agree with the view which was given in Jaribu Abdallah v. R. [2003] T.L.R. 271 that, in assessing the evidence based on visual identification, it is not enough to just look at the factors favoring 12

accurate identification but credibility of the witness as well. The reason being, as observed in Waziri Aman v. R [1980] T.L.R. 250 that" Even recognizing witnesses often make mistakes or deliberately lie." As to how the credibility of such a witness can be tested, we said in Shaban Daud v. R (supra) , it is by not only assessing the coherence of his or her testimony but also by careful weighing such evidence in relation to the evidence of other witnesses. Therefore, where, like here, the witness claims to have identified the suspect and disclosed his identity to another person, his evidence has to be critically scrutinized in line with the evidence of such other person. This is what it was said in R. v. Mohamed Bin Allui [1942] EACA. 72. In this case, the incident took place during midnight. In accordance with PW1, it lasted for three seconds and she was able to identify the appellants by recognition because there was sufficient solar light therein. She was more particular that, the third appellant was holding a panga whereas the second appellant had an axe. On this, the trial Judge observed at page 136 of the record of appeal as follows: "Starting with the time under which the witness remained under observation o f the accused person, PW1 deposed to have observed the second, third and fourth accused persons who entered the house for three seconds. Having 13

considered further PW1 explained how the third accused was armed with a panga, fourth accused armed with an axe and the second accused stood on the door facing her; the curtain inside was cut down by the accused person , I am o f the considered view that PW1 had time to identify them. This is so when it is taken into account thatthe second, third and fourth accused persons were known to the PW1 before the event". We wonder how probable was it for PW1 to be able, within such a short period of three seconds, to see one of the appellants cutting the curtain; to identify the second and third appellants and the weapon each of them was holding; to observe them assaulting the deceased on different parts of the body; and to scramble with the first appellant at the door and manage to escape from the house and raise an alarm before her mouth had been covered by Thobias. Considering that she was, as admitted in her evidence, in terrifying condition, we find ourselves unable to agree with the trial court that, she would witness with maximum accuracy, all the said incidents within three seconds and yet to correctly identify the appellants. Not insignificant to consider is the fact that, while PWl's evidence was such that her two children were in the house sleeping when the 14

incident was taking place, her evidence is absolutely silent on what happened with the said children. Did they remain asleep despite all what happened is a question which cannot find any answer from the prosecution evidence. In view of the geography of the scene of the crime as portrayed by PW1 and considering that one of the children was 9 years who ordinarily might have witnessed the incident, the silence on such an essential fact raises notable question on the probity and credibility of her evidence. On top of that, while the trial Judge believed PW1 because, she disclosed the names of the suspects soon after the incident to, among others, PW2, her evidence is materially inconsistent with that of PW2 in his witness statement which was admitted into evidence as exhibit D1 where he said at page 152 of the record of appeal that: " ... Tulianza kufuatilia nyayo hizo ziliishia nyumbani kwa TINYI s/o NYAMANCHE ambaye ni jirani na marehemu, pia huyo Tinyi s/o Nyamanche hakuwepo nyumbani wala hakuwepo msibani lakini mke wake na marehemu alimtaja MANG'ERA s/o NYAMANCHE ambaye in kaka yake TINYI s/o NYAMANCHE kuwa ni miongoni mwa watu wawiii ambao waiiingia ndani ya nyumba ya marehemu na kumjeruhi marehemu." 15

Literally, the above words means in English: We started following the footsteps which ended up at the home o f TINYI s/o NYAM ACHE (the second appellant) who is the deceased's neighbor. The said Tinyi Nyamanche was neither present at home nor in the death ceremony o f the deceased. The wife o f the deceased, however, had named Mange'ra Nyamanche (the third appellant) who is the brother o f the said Tinyi to be among the two persons who broke into the house o f deceased and assaulted him. In our view, the above statement does not support the proposition in the evidence of PW1 that, she named all the appellants to PW2 at the earliest possible opportunity. Quite apart, it suggests that, PW1 named the third appellant alone. In such a situation, therefore, naming of the appellants as suspects is, if we can borrow the wisdom in Hekima Mdawa Mbunda & Another v. R (Criminal Appeal No. 566 of 2019) [2022] TZCA 138 (24 March 2022, TANZLII), "useless in the eyes o f the law." The evidence also suggests that the ond appellants were arrested because they were the he third appellant. It equally suggests that the second s arrested because the footsteps led PW2 and other s residence.

We also note that, whereas PWl's evidence intimates that she was with PW5 when he entered into the house after the departure of the bandits, her evidence is silent on PW5's claim that the deceased named the sons of Nyamanche as the suspects. In view of the condition the deceased was in, as portrayed in the evidence of PW5, we think, the alleged statement by the deceased was so material in the fact in issue that, its omission casts a doubt on the entire story. As that may not be enough, the evidence of PW2 suggests that he was informed of the incident by the chairman of the hamlet one Thobias Nyamanche and that, the said Thobias was among the persons present at the scene of crime upon his arrival. Conversely, neither in the evidence of PW1 nor that of PW5 is the said Thobias mentioned to be the persons who visited the scene of the crime soon after the bandits had departed or at all. That appears to be unusual considering also that the respective person was the chairperson of the hamlet. We wish to add that, while PW1 was empathic in her evidence that the incident took place at 00:00 hours, and that, she consulted her watch after the bandits had departed, PW2 claims that, he was informed of the incident at 23:53, which was, if we believe the evidence of PW1, before the incident. 17

More to the point, while the oral evidence of the chairman (PW2) suggests that, after conducting a search with the police at the residence of the second appellant, they found a panga and an axe thereat which had blood stains. This is not reflected in his witness statement in exhibit D1 which he made shortly after the incident. More importantly, it is contradictory to the evidence of the PW5 where he said, "we found no weapon at Kanga Nyamanche's house , Mzee Nyamanche's house and Tini'shouse." Assuming the evidence of PW2 was authentic, the said weapons were not tendered into evidence despite being material in proof of the case. Notably, PW6 attempted to clear the anomaly when he said "the chain of custody of the said panga and axe was broken" because, as he said in his testimony in chief, many people had touched it. The mere fact that some people touched it would not, in our view, change the proposition that the same were found in the house of the second appellant, assuming they were produced into evidence. It is also noteworthy that, in her evidence, PW1 claimed that, the appellants had grudges with the deceased because, they had a civil dispute before. On the same point, PW4 clarified that the dispute related to cattle and PW5 clarified further that, the accused persons were alleged to steal motorcycle and cattle and the deceased instituted a case against them. We note that, in his evidence, the third appellant 18

claims that he was arrested at Itununu village on 1s t day of May, 2019 in connection to cattle theft. This, in our view, raises a reasonable doubt that the said appellant might have been linked with the offence merely because he had before the incident, allegedly stolen the deceased's cattle. The High Court Judge used the conduct of the appellants after the incident to accept the evidence of PW1 that it was the appellants who committed the offence. It was not known, the High Court Judge remarked, "why the accused went on hide if they did not commit the offence". We think, in the circumstances of this case, the appellants' conduct after the incident cannot be used to imply their guilty because, their evidence in defence is consistent with the statement of PW2 in exhibit D1 that, their lives would be in danger if they had remained in the village as some angry villagers were about to take the law in their hands against them. In such a situation, therefore, there is a reasonable possibility that, the appellants escaped from the village after the incident to rescue their lives. Though that was apparent from the evidence, it was not taken into account by the trial court. In our judgment, the discrepancies and anomalies we have pointed out herein above in their totality, raise a reasonable doubt on the credibility, probity and believability of the visual identification 19

evidence of PW1 which was the basis of the appellants' conviction and sentence. In law, such doubts should have been applied at the benefit of appellants. Indeed, had the High Court carefully assessed the evidence as we have done, it would have established that, the appellants were not correctly identified and their defence was incorrectly rejected. We, therefore, allow the first, second and third grounds of appeal. In the final result, we find the appeal with merit and we allow it. Accordingly, we quash the convictions of the appellants and set aside the sentences thereof. We further order that the appellants be released forthwith from custody, unless they are otherwise lawfully held. DATED at MUSOMA this 12th day of December, 2024. F. L. K. WAMBALI JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL The Judgment delivered this 13th day of December, 2024 in the presence of appellants in person, and Mr. Zarubabel Ngowi, learned State Attorney for the respondent/Republic, is hereby certified as a true