William Melkiory Mlay @ Baraka and Another vs Republic (Criminal Appeal No. 520 of 2021) [2024] TZCA 1162 (29 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI f CORAM: SEHEL, 3.A., FIKIRINI. J.A, And MLACHA. 3.A.1 CRIMINAL APPEAL NO. 520 OF 2021 WILLIAM MELKIORY MLAY @ BARAKA ARON PAUL SHAYO .... . ...... . ............. . 1 st APPELLANT 2 nd APPELLANT VERSUS THE REPUBLIC RESPONDENT (Appeal from the decision of the High Court of Tanzania at Moshi) In the District Court of Rombo at Mkuu (the trial court), the appellants together with Joseph s/0 Costantine Shayo @ Waitee, the 1s t accused person but not party to the present appeal, were jointly charged with armed robbery contrary to section 287A of the Penal Code. Further, the 1s t accused person was separately charged with two alternative counts which we need not to belabour any further because he is not a party to the present appeal. At the end of the full trial, the trial court acquitted the 1st accused person on the count of armed robbery, whereas the appellants were both found guilty on the first (Mkapa, J.) dated the 8th day of March, 2021 in DC. Criminal Appeal No. 39 of 2020 JUDGMENT OF THE COURT 26‘ - & 29th November, 2024 SEHEL, 3,A.:

count. They were each convicted and sentenced to thirty years imprisonment. Aggrieved, the appellants unsuccessfully appealed to the High Court of Tanzania at Moshi (the first appellate court). Hence, this second appeal. Briefly, the prosecution case was as follows: on 29th April, 2019 at around 21:00 hrs., Nesphori Selestine Lyakurwa (PW2) was heading home by foot from Mamsera area where he went to buy bread for his family. Upon reaching at the junction of Mwenge/Mamsera, he was suddenly attacked by three people. He could not immediately recognize them but by the help of the headlights from a moving vehicle coming from Rombo to Moshi, he was able to see the faces of his attackers. According to PW2, the 2n d appellant had a weapon which, at first, he suspected it to be a gun but later, he realized that it was bush knife. The attackers ordered him to surrender his pistol but refused. He tried to fire the pistol but it was stuck. There and then, the attackers drugged him into the drainage system. As he was resisting, the 1s t appellant told the 2n d appellant to cut PW2's hand and overpowered him. They brutally beat and cut him on his head and hand and went away with his pistol, make Luger 12 millimeter with serial number CZ85B 3508. PW1 said he

was able to identify the attire of the 1s t appellant that he had a green jacket which had a yellow logo at his back. After his attackers went away, he collected himself and went to Mkuu Police Station where he was attended by a police officer with force number G. 2392 Detective Corporal Isack (PW7), PW7 recorded his statement wherein PW1 named his attackers. Thereafter, PW7 rushed the victim to Huruma Hospital as he was bleeding profusely and had blood all over his body. At Huruma hospital, Samwel Joseph Kisanga (PW9) attended him. Upon examination, he observed that PW2 had cut wounds on his face and hands caused by a sharp object and one of his hands had a fracture. He was therefore admitted for five (5) days and then referred to Muhimbili National Hospital for further treatment. In the early morning of 30th April, 2019 at around 04:00 hrs., the Officer Commanding Station (CCS) of Mengwe, one Inspector Mohamed Semfuko (PW3) together with four other police officers went to the appellants who are perennial thieves. They went first to arrest the 1s t appellant where they found him asleep and totally black out from alcohol. They arrested him and then proceeded to the house of the 2n d appellant's girlfriend. They also found him there; arrested and took him to Mengwe Police Station. Thereafter, PW3 directed the Assistant Officer

Commanding, Criminal Investigation Department (Asst. OC-CID) of Rombo, one Deus Elias Maganga (PW1) to continue with the investigation. On that same day, PW1 together with PW7 and G. 32229 Detective Corporal, Abtwalib (PW8) decided to look for the stolen pistol. They first went to search the house of the 1s t appellant where they did not find it. They only managed to seize a green jacket with a yellow logo at the back, hanged on the wall. PW1 claimed that the jacket had traces of blood. They then went to the shop and house of the 1s t accused person. They conducted search in the presence of the ten-ceil leader, one Mary James (PW6), Thomas Constantine Shayo (PW4) and Charles John Shayo (PW5) and seized therefrom a slasher. According to PW1, the slasher looked like a bush knife and had traces of blood. Nothing else was found in both house and shop. They left with the appellants and the keys for the shop was left in the hands of PW4. On 1s t May, 2019, PW4 received a phone call from police officers. They wanted to conduct another search in the shop and house of the 1s t accused person. He quickly responded to the call. PW1 searched and managed to retrieve therefrom a pistol.

The prosecution case was also built upon physical and documentary exhibits. These are; seizure certificate in respect of the search conducted in the house of the 1s t appellant dated 30th April, 2019 (exhibit PI); a green jacket with FJ yellow logo (exhibit PII); seizure certificate in respect of the search conducted in the house of the 1s t accused person (exhibit PHI); aslasher (exhibit PIV); a seizure certificate in respect of the search conducted in the house of the 1s t accused person on l s E May, 2019 (exhibit PV); pistol make luger, four ammunitions nine millimeters, one cartridge and one magazine (exhibit PVI collectively); duplicate firearm licence number 00077817 and copies of receipts (exhibit PVII collectively); ten photographs of PW2 taken on 29th April, 2019 by PW7 (exhibit PVIII) and the PF3 filled of PW2 (exhibit PIX). In their defence, each of the appellants admitted to have been arrested by the police on 30th April, 2019 but denied to have committed the offence. The 1s t appellant also admitted that the police took his jacket hanged on the wall and said they suspected it was stolen. He claimed that he was arrested at his parent's home but he was not told the reason for his arrest.

The 2n d appellant admitted to have been arrested at his girlfriend's house on 30th April, 2019. He also said the police did not tell him the reason for his arrest. At the conclusion of the trial, the trial court was satisfied that the appellants were positively identified by PW2 as the appellants were familiar to the victim; PW2 was able to identify the jacket worn by the 1s t appellant on the night of the incident. It also found that the identifying witness was credible as he named his attackers at the earliest opportunity to PW7 which helped PW7 to make a follow up. Subsequently, the police arrested the appellants. It observed that the 1s t accused person led the police to discovery of the stolen pistol that was identified by the owner, PW2. Nonetheless, it found that the 1s t accused person was not named by PW2, thus, not identified at the scene of crime. Accordingly, the trial court found the appellants guilt, and thus, it convicted and sentenced them as aforesaid. On appeal, the first appellate court concurred with the trial court that the appellants were positively identified by PW2. It observed that PW2 managed to identify the appellants by the aid of the headlamps of the passing motor vehicles; PW2 hugged the 1s t appellant close enough to identify the colour of his jacket which led for it to be smeared with

blood. It further observed that the said jacket was found in the 1s t appellant's room and admitted in evidence as exhibit PII. In that regard, it upheld the conviction and sentence meted to the appellants. Still aggrieved, the appellants preferred this second appeal. On 30th March, 2023, the appellants filed a memorandum of appeal comprising of seven grounds and on 9th November, 2023, they filed a supplementary memorandum of appeal raising three grounds of appeal. We shall deal with the grounds of appeal in a manner adopted and submitted by the learned State Attorney. Before going any further, we wish to point out that this being a second appeal, we shall be mindful of the settled principle of law that, the Court can only interfere with concurrent findings of fact by the two courts below where there are mis-directions or non-directions on the evidence, a miscarriage of justice or a violation of some principle of law or practice-see: The Director of Public Prosecutions v. Jaffari Mfaume Kawawa [1981] T.L.R. 149; Musa Mwaikunda v. The Republic [2006] T.L.R. 387 and Dickson Elia Nsamba Shapwata & Another v. The Republic (Criminal Appeal No. 92 of 2007) [2008] TZCA 17 (30 May, 2008; TANZLII).

At the hearing of the appeal, the appellants appeared in person, unrepresented whereas Ms. Janeth Sekule, learned Senior State Attorney, assisted by Ms. Tusaje Samwel, learned State Attorney, appeared for the respondent Republic. When given a chance to submit on the grounds of appeal, the appellants preferred the respondent Republic to reply first to the grounds of appeal while reserving their right of rejoinder iater should it be necessary to do so. Ms. Samwel began her reply submission by informing the Court that the respondent is supporting the appeal. Responding to the Court's inquiry as to whether the documentary evidences were read out after being admitted in evidence, Ms. Samwel outrightly admitted to the anomaly, thus, urged the Court to strike out ail documentary exhibits from the record of appeal. We have duly considered and reviewed the record of appeal. Indeed, all documentary exhibits were not read over to the appellants after they were cleared and admitted in evidence. It is a settled position of the law that every documentary evidence introduced and admitted in evidence has to be read over to the accused person. The reason behind such requirement was well explained in the case of John Mghandi @

Ndovo v. The Republic (Criminal Appeal 352 of 2018) [2019] TZCA 331 (30 September 2019; TANZLII) that: "We think we should use this opportunity to reiterate that whenever a documentary exhibit is introduced and admitted into evidence, it is imperative upon a presiding officer to read and explain its contents so that the accused is kept posted on its detaiis to enabie him/her give a focused defence . That was not done in the matter at hand and we agree with Mr. Mbogoro that, on account o f the omissionwe are left with no other option than to expunge the document from the record o f the evidence. "''[Emphasis added]. Accordingly, we find that the omission was fatal as it occasioned a miscarriage of justice to the appellants. Consequently, we expunge exhibits PI, PIII, PV, PVII and PIX from the record. Addressing the complaint that the charge was at variance with the evidence, Ms. Samwel argued that while the charge alleges that the stolen property is pistol make Luger with serial number CZS5B CAL 9mm, PW2 described and identified the seized firearm as pistol make Luger with serial number C285B 3508 CAL 12mm. She argued that given the variance, the prosecution ought to have amended the charge in

terms of section 234 (1) of the GPA but did not do so. It was therefore the submission of the learned State Attorney that the charge was not proven to the hilt. Our scrutiny of the record of appeal revealed that there is such an apparent variance between the evidence of PW2 and the charge. The charge alleges that the appellants stole firearm make pistol Luger with serial number CZ85B CAL 9mm whereas although PW2 said his stolen firearm was pistol make Luger but gave different description of the serial numbers. This is gathered at page 21 of the record of appeal where PW2 described his stolen firearm as follows: "The pistol make luger 12 millimeters no. CZ 85 B 3508 I bought it in 2001 at Tshs. 712,500 in Dar es Salaam but was given at Moshi In Tanganyika Arms shop." As correctly submitted by the learned State Attorney, since the charge was not amended then the prosecution failed to lead evidence to show that the seized pistol was the one described in the charge sheet. The issue whether the charge was proven takes us to another complaint raised by the appellants that they were not properly identified by PW2. Ms. Samwei admitted that the evidence of the identifying witness, PW2, was so weak and unreliable that no trial court could come

to a conclusion that the appellants were positively identified. Relying on the case of Waziri Amani v. The Republic [1980] T.L.R. 250, the learned State Attorney submitted that while PW2 claimed that he identified the appellants by the headlight of the moving vehicles, the intensity of the light illuminated therefrom was not disclosed to enable the trial court to assess as to whether conditions for identification was favourable. In the same vein, the learned State Attorney argued that PW2 did not explain the time taken to observe his attackers who he claimed to have named them to PW7 on that very night. It is noteworthy that both the trial court and first appellate court held that the appellants were positively identified. The first appellate court reasoned that the identifying witness was able to identify his attackers by the headlight of the moving vehicles and had ample time to observe the appellants; the distance between the 1s t appellant and PW2 was proximate enough as PW2 hugged the 1s t appellant close enough to identify the colour of the 1s t appellant's jacket. On this we wish to state that the evidence of identification is of weakest kind and unreliable such that the court should not act upon it unless all the possibilities of a mistaken identity have been eliminated (see: - Abdallah Bin Wendo &

Another v. Rex [1953] EACA 116 and Waziri Amani v. The Republic (supra)). Having examined the evidence on record, we entirely agree with the first appellate court that during the tussle, PW2 held one of his attackers in close range but, given the unreliability of the source of light, we are of the strong view that it will not be safe to uphold the concurrent findings of the two lower courts. This Court has now and then stressed that the light illuminating from the headlamps of the moving vehicle is not stationary. The moving headlamps cannot illuminate adequate light for the identifying witness to identify the attackers. Such source of light is unreliable that no trial court could come to a conclusion that the appellants were positively identified. For instance, in the case of Bakari Jumanne @ Chigalawe & Others v. The Republic, (Criminal Appeal No. 197 of 2018) [2020] TZCA 1794 (2n d October, 2020; TANZLII) the Court said: "The headlights o f the passing vehicles might have lit up the scene, but it occurs to us that this source o f light was no more than fleeting and unreliable. In this context, there was no assurance that the scene was well lit for the witness to observe and identify his attackers."

In that respect, we find that the transitory headlights could not have assisted PW2 for him to adequately identifyhis attackers. Connected to that the account of PW7 on how PW2 reported the appellants tells it all. At page 39 of the record of appeal, PW7 recounted as follows: "...white fighting a vehicle pass by/ there he saw the 2n d accused person [the 1st appellant] and the 3rd accused person [the 2n d appellant]; the 2n d accused had a jacket which had yellow writing on chest\ the J d accused has a watch and he started beating him with the bush knife on head and a right arm..." From the above, the description given by PW2 to PW7 on identification of the appellants was too scanty. Furthermore, we agree with the learned State Attorney that the alleged second search conducted in the house of the 1s t accused person was doubtful as the description of the retrieved pistol materially differs with the ones contained in the charge. Equally, in the first search nothing was found therein. In that regard, we are satisfied that both lower courts misapprehended the evidence on identification of the appellants, thus, we are entitled to interfere. Accordingly, we find merit on the appeal.

Accordingly, we allow the appeal, quash the conviction, set aside the sentence and order for the immediate release of William Melkiory Mlay @ Baraka and Aron Paulo Shayo, the appellants, from prison custody unless they are lawfully held for other reasons. DATED at MOSHI this 29th day of November, 2024. B . M. A. SEHEL JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 29th day of November, 2024 in the presence of the appellant in person and Ms. Tusaje Samwel, learned State Attorney for the respondent/Republic is hereby certified as a true copy of the original.