Kirajagaye s/o Joackim and Another vs Republic (Criminal Appeal No. 289 of 2010) [2014] TZCA 2211 (16 June 2014)

IN THE--COURT-OF APPEAL OF TANZANIA AT TABORA (CORAM: MBAROUK,_ J.A., MASSATI, J.A., And MUSSA, J.A.) . CRIMINAL APPEAL NO 289 OF 2010

1. KIRAJAGAYE S/O JOACKIM }
2. HABONIMANA 5/0 PASCKAL ................................................ APPELLANTS VERSUS THE REPUBLIC ........................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Tabora) (Wambali, J.) Dated the 15 th day of September,2010 in Criminal Appeal No. 108 and 109 of 2009 12 th & 16 th June,2014 MBAROUK, J.A.: JUDGMENT OF THE COURT In the District Court of Tabora at Tabora, the appellants were charged with the offence of robbery with violence contrary to sections 285 and 286 of the Penal Code, Cap.16 Vol.1 of the Revised Laws. They were convicted and sentenced to thirty (30) years imprisonment with twelve (12) strokes of the cane. Their appeals before the High Court (Kaduri, J.) were dismissed for want of merit. Still aggrieved, they preferred this second appeal. 1

· A brief account of the facts at the trial court were as . follows: On 1-2-1998, PWl Philipa s/o Ntahombaye, a petty • 0 .. businessman at Mtendeli refugee camp went to Susana trading centre to buy clothes. While on his way to the camp at around 11:00 hrs, he was ambushed by bandits who fell him down. All the clothes he bought and cash amounting to T. Shs. 24, 610/= were stolen. PWl testified to have identified the 1 st Appellant as he knew him very well as a colleague living together at the same • h refugee camp. PWl further testified to have named the 1 st Appellant to the police. The 2 nd Appellant was apprehended selling some of the allegedly stolen items, wh.ereas the 1 st Appellant was apprehended at his ome. In their defence, both the appellants denied do have committed the offence. The 1st Appellant defended himself simply ,: by contending that on 1-2-1998 he was at his home place full time. Whereas, the 2 nd Appellant testified that on 2-2-1998 he was arrested at his house by Sungu Sungu and taken to the market place where he found a small boy (DW3) in possession of the ! . l. .... y .. ,_i· .. 2

.-. items. allegedly stolen. He'·denied•'to have given the items to thEi '- boy for;selling. In this appeal, the appellant appeared in person unrepresented, whereas the respondent/Republic was represented by Mr. Edward Mokiwa, learned State Attorney. Each appellant filed a separate memorandum of appeal having five grounds of complaint. However, we have found that the essence of the ,. appellants' grounds of complaint centres on the issue of the prosecution's failure to prove their case beyond reasonable doubt. Both appellants had nothing to elaborate from what is contained in their memoranda of appeals. On his part, the learned State Attorney from the outset indicated to support the appeal. He started his submission by submitting that he will argue the appeal by loo~ing separately . each memorandum of appeal. He started his submission by looking at the grounds of appeal preferred by the 1st Appellant. He said, the conviction of the 1st Appellant at the trial court which was upheld by the High Court solely relied upon the 3

,,., M~@a.Mt 1!.'.J. ,..,h5,'lfi!'. ;"7.S~~~~..;.'!'::- t 1 §£!9.~~--ffli.3!/!g{_@!M~ 2 . evidence of PW1 on the issue, ofddentification. He add~d that,: t· however, there are some important matters to be considered . . .. before relying on that evidence of a single witness. The learned State Attorney submitted that it is unsafe to rely upon such evidence of a single witness without being corroborated. He further submitted that even if PWl testified to have identified the 1 st Appellant, but there is no corroborative evidence from the police mentioned by PWl that he reported to him. He said that no policeman was called as a witness to testify. In the absence of such evidence, the learned State Attorney urged us to consider the evidence of PWl on the issue of identification with caution. Apart from that, the learned State Attorney submitted that the record is silent on how the 1 st Appellant was arrested. Under those circumstances, the learned State Attorney urged us to firid that there is no cogent evidence to support conviction of the 1 st Appellant. As to the 2 nd Appellant, the learned State Attorney submitted that his conviction was based on the evidence that he was caught with the alleged stolen clothes. However, he said . . 4

r-r*~~'f-•2:sM.tF.#--'¥i¢.JetAl&UPzs:"' . ..,~~~1rn1LTo-Le£ .. ::,z~!5:2J:t \ . ' . . . .. that,.: the pr:osecutfon's case lacl<s the description, of those stolen items. For ,that reason, he u·rged • us to find that the prosecution .. has failed to prove their case beyond reasonable doubt. It is our considered opinion that, the first point for consideration is whether the evidence relied on by the trial court and upheld by the High Court was enough to sustain conviction. In the instant case, there is no doubt that the incident of robbery .. with violence occurred at 11:00 a.m. at a day time. PW1 also knew the appellant before and claimed to have named him to one policeman. However we hav_e some reservation as to why the prosecution failed to call the police who was informed by PW1 that it was the 1 st Appellant and no one else who committed the offence. The decision in the case of Mohamed Allui V. Rex [1942] 9 EACA 72 has emphasized the importance of a person to whom the description was given to testify, where it was held that:- ''In every case in which there is a question as to the identity of the accused,· the fact of there having been . · · ! 5

·-

a. ·descriptipn .,:given · and the terms. of · 
that description given are matters of the 
highest importance of which evidence 
ought always to be given/ first of all of 
course, by the persons who gave the 
description and purport to identify the 
accused, and then by the person or 
persons to whom the description was 
. ~ 
given'~ 
In the absence of such a testimony it remains unsafe to 
sustain the conviction of the 1 
st 
Appellant. 
Apart from that, we are very much aware that it is a rule of 
- 
practice, not of law, that corroboration is required when a single 
witness testifies on a certain issue in a case. See the decision of 
this Court in the case of Hassani Juma Kanenyera and Others 
v. The Republic [1992] TLR 100, where it was held as follows:- 
''it was. stated that that it is a rule of 
practice, not of law, that corroboration 
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-·(.~• . .. 
,Ui?_::.3!:t~t;~J!A:¾;¥.:i.JfJ&d a tci2!£§!\&!.~~i~.J:(-tte~?i,@CGL~~[ . . 
.( .· :· is required of the evidence . of a i single 
. witness, but the rule does not preclude 
a conviction on the evidence of a single 
witness if the court is fully satisfied that 
the witness is telling the truth'~ 
However, the circumstances· in this case obliges us to see a 
neces·sity of such corroboration to satisfy ourselves that PWl was 
. 
telling nothing but the truth. This is for the reason that each case 
has to be decided according to its own facts. 
As for the 2 
nd 
Appellant, we are in agreement with the 
learned State Attorney that the prosecution evidence from the 
·complainant (PWl) failed to describe and in particular give special 
marks of the alleged stolen items. The record shows that PW1 did 
not describe how he identified the two pieces of clothes before· he 
tendered them as Exhibit P2. It is a trite law that the description 
of the items alleged to have been stolen should be described by 
the complainant before they are tendered and admitted in court. 
Such a failure to give description of the alleged stolen items 
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makes Us to remain.· in doubt as td whetber the. two pieces of 
clothes were really the same as those alleged to have been stolen. 
• I 
This Court in its various decisions has emphasized the 
necessity of the complainant to give description and show special 
marks of his/her property alleged to have been stolen. See the 
decision of this Court in the case of Mustapha Darajani v. The 
Republic Criminal Appeal No. 242 of 2008 ( unreported) where it 
was stated as follows:- 
"ln such cases description of special 
marks to any property allegedly stolen 
should always be given first by the 
. alleged owner before being shown and 
allowed to tender them as exhibits'~ 
In the absence of such description, it is unsafe to rely upon 
the existing evidence of PWl. 
Having seen the weaknesses in the identification evidence · 
and the failure of the complainant (PW1) to describe _and give 
special marks of the clothes (Exhibit P2) alleged to have been 
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stoler:i, we are. 0f: the considered opinion that the case against the~ 
appellants was not proved beyorJd reasonable doubt. 
In the event, and for the reasons stated above, we find this 
appeal with merit. Hence, we allow the appeal, quash the 
cdnvictions and set aside the sentences. Similarly, we order the 
appellants to be released from prison forthwith, unless lawfully 
held thetein. 
DATED at TABORA this 16 
th 
day of June, 2014. 
M.S. MBAROUK 
JUSTICE OF APPEAL 
S.A. MASSATI 
JUSTICE OF APPEAL 
K.M. MUSSA 
JUSTICE OF APPEAL 
I certify that this is a true copy of the original. 
IZU 
DEPUTY REGISTRAR 
COURT OF APPEAL 
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