Ally Salum Hembe @Ndeki and Others vs Republic (Criminal Appeal No 29770 of 2025) [2026] TZHC 2965 (5 June 2026)

1 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB - REGISTRY AT DAR ES SALAAM CRIMINAL APPEAL NO 29770 OF 2025 (Appeal from the judgment of the District Court of Temeke at Temeke by Hon. F.M LUKOSI - SRM dated 27 th November,2024, in Criminal Case No. 36033 of 2024) ALLY SALUM HEMBE@NDEKI …………………………1 ST APPELLANT JAFFAR SAID NDUNGURUSI………………………….2 ND APPELLANT ENGERT WILSON………………………………………...3 RD APPELLANT VERSUS THE REPUBLIC ………………………………………. RESPONDENT JUDGM E NT MKWIZU,J The accused persons, namely Ally Salum Hembe @ Ndeki, Jaffari Said Ndungurusi, and Engert Wilson Chandika , were jointly charged with armed robbery contrary to section 287A of the Penal Code [Cap. 16 R.E.

2 2022]. It was alleged that on 6 March 2024 at Mbagala, Temeke District, they robbed Rashid Omary of TZS 200,000/= and an Infinix Hot 12 mobile phone valued at TZS 440,000/=, and, immediately before or during the robbery, used violence by stabbing him with a screwdriver to facilitate the offence. Upon arraignment, all accused persons denied the charge. The prosecution called five witnesses and tendered two exhibits, while the defence called three witnesses. PW1 testified that he and PW2 were attacked at about 9:00 p.m. by three armed men, whom he identified as the accused persons. He stated that the attackers used a screwdriver, panga, and knife, and that he was stabbed on the shoulder while being robbed of c ash and a mobile phone. He further stated that the scene was illuminated by solar lights, enabling identification.PW2 corroborated the attack and identified the 2nd and 3rd accused persons, stating that he was robbed of TZS 400,000/= and a phone, and was a lso injured. He added that a mobile phone was dropped at the scene and later linked to the 1st accused. PW3, the employer, testified that he knew the 1st accused previously and that upon hearing calls for help, he found the accused persons actively

3 committing the robbery at his gate under a well - lit security light. He also stated that a phone was dropped at the scene.PW4, the investigating officer, testified on the arrest of the accused persons and the seizure of a Boxer motorcycle (Exhibit P2) alleg edly used in the offence.PW5 testified that he investigated the case, recorded caution statements, and stated that the 2nd accused allegedly confessed and implicated the co - accused. He also asserted that there was sufficient lighting for identification. In their defence, all accused persons denied the offence, challenged the circumstances of their arrest, and disputed the alleged confessions and identification evidence.At the end of the trial, the court convicted the accused persons, sentenced them to thirty (30) years’ imprisonment, and ordered forfeiture of the motorcycle (Exhibit P2) to the Government. D issatisfied with both the conviction and sentence, the appellants lodged the present appeal on the following grounds:

1. That, the learned trial magistrate grossly erred in both law and fact by convicting the appellants based on insufficient and unreliable visual identification
2. The learned trial magistrate grossly erred in both law and fact by convicting the appellant based on contradictory, incredible and

4 improbable evidence of the prosecution witnesses. 3. The learned trial magistrate grossly erred in both law and fact by convicting the appellants based on the weakness of the defence. 4. The learned trial magistrate grossly erred in both law and fact by convicting the appellants based on a case that was not proved to the hilt. The appeal was heard by way of written submissions. The appellants, who were unrepresented, appeared in person, while the respondent was represented by Ms. Sabina Ndunguru, learned Senior State Attorney. In support of the appeal, the appellants argued grounds 1 and 2 together, and grounds 3 and 4 together. On grounds 1 and 2, they contended that the trial court erred in convicting them on weak and unreliable evidence of visual identification. They submitted that the offence occurred at about 9:00 p.m. and that the prosecution failed to prove favourable conditions for positive identification, including adequate l ighting, distance, and duration of observation. They challenged PW3’s alleged recognition of the 1st appellant, arguing that essential details such as lighting intensity, proximity, and time of observation were not provided. Relying on authorities including Scapu John And Another V Republic , Criminal Appeal No. 197 of 2008 (Unreported), Said Chally Scania V Republic

5 Criminal Appeal No. 89 of 2005 (Unreported), Karim Ramadhani And 2 Others V Republic Criminal Appeal No. 113 of 2009 (Unreported), and Gerald Anthony Malechela V Republic Criminal Appeal No. 671 of 2021 (Unreported), they further argued that no identification parade was conducted and that dock identification was worthless in law. On grounds 3 and 4, the appellants submitted that the prosecution failed to prove its case beyond a reasonable doubt. They relied on Jonas Nkize V Republic [1992] TLR 213, Saleh E. Kassim V Republic (1968) HCD 366, Mwita And Two Others V Republic (1971) HCD 54, and Henri Ibrahim V Republic (1972) HCD 178, arguing that their defence raised reasonable doubt. They also challenged the prosecution’s failure to produce a mobile phone allegedly recovered at the scene, which they claimed was crucial to linking them to the offence. In reply, the respondent maintained that the prosecution proved the case beyond reasonable doubt through consistent and credible evidence of PW1, PW2, PW3, PW4 and PW5. It was submitted that PW1 and PW2 were eye witnesses whose evidence remained consistent and unshaken, and that the trial court properly evaluated their credibility. Reliance was placed on Shaban Daudi V Republic Criminal Appeal No. 28 of 2001

6 and Tito Paulo Kuchungura V Republic Criminal Appeal No. 570 of 2020. On identification, the respondent argued that the witnesses properly described the lighting conditions and had sufficient opportunity to observe the appellants. PW3, who knew the 1st appellant before the incident, gave detailed evidence of recognition. Rel iance was placed on Waziri Amani V Republic [1980] TLR 250, Swalehe Kalonga & Another V Republic Criminal Appeal No. 124 of 2007 (Unreported), and Boniface Siwingwa V Republic Criminal Appeal No. 421 of 2007 (Unreported). It was further submitted that fail ure to conduct an identification parade was not fatal . Regarding grounds 3 and 4, the respondent contended that the defence was weak and that the omission to produce the mobile phone did not affect the prosecution's case, as the offence was proved through direct eyewitness testimony. They prayed for dismissal of the appeal. I have re - evaluated the evidence and the parties' submissions. Generally, grounds 1 and 2, which challenge the sufficiency and reliability of visual identification evidence, are considered together as they both impugn the evidential basis upon which the co nviction rests.

7 The evidence by PW1, PW2, and PW3, was that the offence occurred at about 2100 hours when the complainants were allegedly attacked by three assailants at a construction site. PW1 stated that there was solar lighting at the scene and that the incident lasted about 15 mi nutes, during which he claimed to have identified the Appellants, including the person who stabbed him and stole his phone and money. PW2 similarly asserted that there was a 1000 - watt security light which enabled him to recognize the attackers, while PW3 c laimed prior familiarity with the 1st Appellant and also implicated the others as the assailants. Although the witnesses referred to the existence of light at the scene, none provided essential particulars regarding the exact source, position, intensity, or distance of the light relative to the assailants and the witnesses. Furthermore, PW1 and PW2 admitted that some of the Appellants were not well known to them prior to the incident, with PW1 stating it was only his second time seeing them and PW2 stating he had first seen them earlier that same day. In such circumstances, the law required prior detail ed descriptions of the assailants to be given to the police at the earliest opportunity. No such descriptions were recorded or produced in evidence, thereby weakening the reliability of the subsequent dock identification. T he description given by PW2 that one assailant was

8 “tall and black” is too general to safely identify any particular individual, as it is a description capable of fitting many persons. The absence of a properly conducted identification parade further compounds the evidential weakness, especially in respect of the 2nd and 3rd Appellants, who were essentially strangers to some of the witnesses. In such circumstances, dock identification carries little probative value unless corroborated by strong independent evidence, which was lacking in this case. Again, w hile PW3 alleged prior knowledge of the 1st Appellant and gave a narrative of his role in the offence, even recognition evidence must still be tested against the quality of the lighting, the opportunity for observation, and the consistency of the description. The deficiencies noted in the prosecution evidence render the alleged recognition unsafe as a basis for conviction. T his court finds that the prosecution failed to establish positive and reliable identification of the Appellants beyond a reasonable doubt. Accordingly, Grounds 1 and 2 succeed. On grounds 3 and 4, the Appellants contended that the prosecution's case was weakened by failure to tender crucial exhibits, particularly a mobile phone allegedly recovered at the scene and said to link one of the Appellants to the offence. PW1 and PW2 both testified that a phone was found at the scene and allegedly conta ined messages implicating the

9 Appellants. However, this phone was not produced in court , and no explanation was provided for its absence. Given its alleged centrality to the investigation, its non - production created a significant evidentiary gap.PW5 further testified that one of the Appellants allegedly confessed during the investigation. However, this alleged confession was not supported by independent safeguards or corroborating evidence sufficient to warrant caution, particularly in light of the disputed circumstances of the arrest a nd the Appellants' denials . The defence evidence, though brief, consistently denied any participation in the offence and challenged the circumstances of the arrest and the alleged confession. In criminal proceedings, the burden remains throughout upon the prosecution to prove its case beyond a reasonable doubt, and it does not shift to the accused. In view of the weaknesses already identified in the identification evidence, the absence of key exhibits, and the lack of reliable corroboration, this Court finds that the prosecution's evidence, taken as a whole, falls short of the standard required in criminal law. Accordingly, t he appeal is hereby allowed. The convictions of the Appellants are quashed , and the sentences imposed upon them are set

10 aside. The Appellants shall be released forthwith from prison unless they are otherwise lawfully held. It is so ordered. E. Y Mkwizu Judge 5/ 6/ 2026 COURT : Right of appeal explained E. Y Mkwizu Judge 5/ 6/ 2026