Kipara Katondo and Another vs Republic (Criminal Appeal No. 298 of 2010; Criminal Appeal No. 299 of 2010) [2014] TZCA 2214 (4 March 2014)

.. - ··;,r. -·: .... IN THE COURT OF APPEAL OF TANZANIA AT TABORA t;'..., (CORAM: MSOFFE,.A., KIMARO,J.A., And MJASIRl,J.A.) CRIMINAL APPEAL NO. 298 CF 299 OF 2010 1.KIPARA KATONDO 2.KAMANA RASHIDI } ............... i:., ........................ APPELLANTS VERSUS THE REPUBLIC ......... ■■ ••••••••••••••• I ■■ •••• ■■■■■■■■• I ■■■ •• RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Tabora) (Kaduri,J.) dated 1 st day of September, 2010 in Criminal Appeal No.181 cf 182 of 2009 3 rd & 5 th March, 2014. KIMARO,JA.: JUDGMENT OF THE COURT The District Court of Kibondo convicted the appellants of the offence of armed robbery contrary to section 285 and 286 of the Penal Code, [CAP 16 R.E.2002] on 9 th June, 2000. They were both sentenced to thirty five years imprisonment each. Aggrieved_ by the conviction and the sentence, both lodged an appeal in the High Court of Tanzania but it was dismissed. 1

Still aggrieved, the appellants filed this appeal. The first appellant filed four grounds of appeal while the second one filed five grounds of appeal. Common grounds for both appellants is their personal identification and also the identification of the properties that was alleged to have been stolen. They both contend that the evidence of their identification was not watertight to justify their conviction for the offence of armed robbery. They also said the appellant did not sufficiently identify I the stolen bicycle. The second appellant also complained that the police officer to whom the commission of crime was reported was not called to testify and that there were inconsistencies in the prosecution evidence. The offence of robbery was alleged to have been committed by use of violence to Nahashakiye Edelino (PW4) on 28 th October, 1999 at Kibingo Village and his SWALA bicycle, was stolen from him. The evidence in brief was that on the material date, at about 2.30 p.m, PW4 a refugee from Burundi, who was then living at Nduta Refugee Camp, was returning to the Camp with other refugees. They were five in number and they had come from Nyaryoba Village where they went to buy bananas for brewing beer. Each one was riding a bicycle. PW4 had a Swala bicycle. On the way at Kibingo area they were confronted by 2

bandits who had blocked the road by logs. PW4 who was riding in front of the others left his bicycle and ran away but he was confronted by the bandits who had a panga and a firearm and was kicked and beaten and they disappeared with his shirt and the bicycle. According to the witness, he identified the first appellant as being among the bandits involved in the commission of the robbery. He said he used to drink pombe with him whenever he went to that village. The matter was then reported to the Administrative officers of the Camp who issued a letter to them so that the matter could be reported to the village authorities. The matter was reported to Bakari Keihwili (PWl) a Sungusungu Commander· at Ki bingo Village. PW2 reported the matter to Jackson Mnyamko (PW2) the Village Chairman of Kibingo Village. The trio, namely PWl PW2 and PW4, together with the other victims of the crime of robbery, who however did not testify, went to arrest the suspects. The first house they visited was that of Kazamoyo Rashid and Kamana Rashid. Kazamoyo Rashid was charged as the 5 th Accused in the trial court. He was also convicted but because of his age which was thirteen years when the offence was committed, was sentenced to suffer corporal punishment of six strokes of the cane. 3

The testimony of PWl and PW2 was that the second appellant and Kazimoyo Rashid admitted involvement in the commission of the offence and they mentioned the names of the rest of the persons who participated in the commission of the offence. These were the first appellant and others who were charged with the two appellants but were acquitted. From the evidence of PW1, PW2, Saidi Chiza (PW3) who was the Village Chairman, a SWALA bicycle which was identified by the refugees without mentioning which specific refugee identified it was recovered from the house of the first appellant. However, the witnesses said the first appellant denied the commission of the offence. In their defences both appellants denied the commission of the offence. They both raised the defence of alibi but without giving notice as required by section 194 (4) of the Criminal Procedure Act, [CAP 20 R.E.2002]. The trial court was satisfied that the evidence of the identification of the appellants was sufficient because the offence was committed during day time and the victim of the offence sufficiently identified the appellants. 4

The trial magistrate convicted the appellants as aforesaid and imposed the sentence as indicated above .. Before us the appellants appeared in person when the appeal was called on for the hearing. The Republic /respondent_ was defended by Mr. Juma Masanja, learned State Attorney. To the appellants, they felt to be on the safe side by the learned State Attorney , responding to their grounds of appeal first before they defended them. The learned State Attorney supported the appeal. He said although the High Court ( Kaduri, J.) sustained the conviction on. the evidence of identification that was relied upon by the trial court, on his side the evidence was not sufficient to sustain the conviction. He pointed out· various shortfalls in the prosecution evidence. He said PW4 was the· complainant who gave evidence. He said his evidence was not trustworthy . because apart from a bare statement that he identified the first appellant because he used to drink with him whenever he visited Nyaryoba village,. he failed to diselose his ·name to the village authorities or give any. description of him. 5

As he went through the evidence of the rest of the prosecution witnesses, the learned State Attorney said the witnesses did not say that PW4 described the appellants or revealed their names. He said the evidence of PW1 was that PW4 said he could identify the bandits by their faces. This was also the evidence of PW3. On this aspect the evidence of PW2 was silent. Given such evidence,· said the learned State Attorney, there is a missing link on how the appellants were arrested and charged ,, with the commission of the offence. He prayed that the appeal be allowed and the appellants be set free. The appellants had nothing to reply to after the learned State Attorney supported the appeal. With respect to the learned judge on first appeal, we agree with the ,. learned State Attorney, that the evidence of identification relied upon by the learned judge on first appeal was not watertight. The learned State Attorney submitted correctly that there is a missing link on how the appellants were arrested and charged with the commission of this offence. PW1 said the letter he received from Joachim Ntetulula of Nduta Refugee 6

v Camp pointed out clearly that the complainant only knew the faces of the culprits. He went with the victims of the offence to PW2 the Chairman of the Village. The witness met PW2 while he was returning from his shamba. From there they went to the house of the second appellant and the third appellant. PW3 on the other hand said he met the witnesses at the house of the first appellant. The evidence of the three witnesses is contradictory. It is not clear who, as between PW2 and PW3 is· the chairman of the village. Both of them described themselves as the chairman of Kibingo village. None of them said that the complainant mentioned the names of the appellants to them. An important question which should have been answered by the ,. courts below is: Why did the witnesses go to the houses of Kazimoyo Rashid (fifth accused who was convicted but did not appeal) and the second appellant? PW4 did not mention their names to them (PWl, PW2 and PW3). With respect tothe learned judge ·on first appeal, there is an obvious missing link in the prosecution evidence. None of the witnesses told the trial court what prompted them to go to the houses of the appellants. The 7

complainant did not disclose the names of the victims to them nor was any identification parade conducted in which the witnesses would identify the appellants. With such a lacuna in the evidence of the prosecution, the case should have been resolved in favour of the appellants. In the case of Marwa Wangiti Mwita and Another V R [2002] T.L.R 39, the Court held that:c " The ability of a witness to name a suspect at the earliest opportunity is an all important assurance of ,. his reliability, in the same way as un-explained delay or complete failure to do so should put a prudent court to inquf ry. " Since the complainant did not mention the names of the suspect and it was not clear from the evidence why the witnesses went to arrest the appellants this should have made the learned judge on first appeal see ' that there was a missing link in the prosecution evidence. He was not supposed to take it for granted that the offence was committed during day time and conclude that there were conditions favourable for a correct identification of the appellants. 8

In the case of Jaribu Abdallah V R Criminal Appeal No. 220 of v 1994(unreported) the Court held that: " ... in matters of identification it is not enough merely to look for factors favouring accurate identification. Equally important is the credibility of the witnesses. The conditions of identification might appear ideal but that is no guarantee against untruthful evidence. " Because of the clear deficiency in the prosecution evidence, we agree with the learned State Attorney that the evidence of identification was not sufficient, let alone being watertight to convict the appellants. This ground ' has merit. Likewise, the evidence of identification of the stolen property left much to be desired. All that PW4 told the trial court was that he identified the bicycle as his. However, he did not give any identification marks. On his part PW1 said the bicycle was identified. by a refugee but he did not point out which specific refugee identified the bicycle. An item like a bicycle had to be identified, by its type, mark and serial number which are 9

normally indicated in the receipt issued to the purchaser. See the case of Ally Zuberi V R Criminal Appeal No. 242 of 2011 (unreported). This ground too has merit. Regarding the defence of alibi that was raised by the appellants without giving any notice under section 194(4) Cap 20, the learned judge on first appeal was required to assess it value in their defence in line with section 194 (6) of Cap 20. He was not supposed to ignore it outrightly. Lastly is that sentence of thirty five years imprisonment that was imposed on the appellants. The law provides for thirty years imprisonment as a minimum sentence for the offence'.· In justifying the sentence of 35 years imprisonment the trial court said the offence is rampart in the area. With respect to the learned judge on first appeal he should have addressed this issue. Since the law prescribes a minimum sentence and no special circumstances were shown by the trial court to justify a departure from the ' minimum sentence authorised by the law, he should have corrected the irregularity in the sentence. 10

All in all, since the Court has already found that the appellants' ·• grounds of appeal have merit, we need not say more on the sentence. We allow the appeal, quash the conviction and the sentence and order the immediate release of the appellants from prison unless they are held there for another lawful cause. DATED at TABORA this 4 th day of March, 2014. J. H. MSOFFE JUSTICE OF APPEAL N. P. KIMARO JUSTICE OF APPEAL S. MJASIRI JUSTICE OF APPEAL I certify that this is a true copy of the original. ;z.efi:A SENIOR DEPUTY REGISTRAR COURT OF APPEAL 11