Edwin Haniset Lusazi vs Republic (Criminal Appeal No. 14482 of 2025) [2026] TZHC 2975 (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. 14482 OF 2025 (Arising from the decision of the trial District Court of Ilala at Kinyerezi (Hon. N.A. Baro, PRM) in Criminal Case No. 428 of 2021 ) EDWIN HANISET LUSAZI …………………… .. …………………... APPELLANT VERSUS THE REPUBLIC……………………………………………………. .. RESPONDENT JUDGMENT Date of last order: 15/05/2026 Date of Judgment: 05/06/2026 A.A. MBAGWA, J. This appeal arises from the conviction and sentence of the trial District Court of Ilala at Kinyerezi (Hon. N.A. Baro, PRM) delivered on 23 rd June 2022. Before the trial Court, the appellant was arraigned on an indictment of Armed Robbery contrary to Section 287A of the Penal Code. It was alleged that Edwin Haniset Lusazi, the appellant, on the 8 th day of April 2021, at Buguruni Mnyamani area within Ilala District in Dar es Salaam Region, stole cash TZS 130,000.00, shoes worth TZS 12,000.00, and an Islamic

2 cape, baraghashia, worth TZS 15,000.00, all properties valued at TZS 157,000.00, the properties of one Hamis Ramadhani, and immediately before and after such stealing, threatened Hamis Ramadhani with a knife to obtain and retain the said stolen properties. The appellant denied the accusations, a fact which compelled the prosecution to prove the allegations through a trial. The prosecution summoned three witnesses to prove its case, namely, Hamisi Ramadhani (PW1), E2659 SGT Bryson (PW2) and Hassan Abdallah (PW3). In addition, it tendered two documentary exhibits and one physical exhibit, that is, a PF3 report (Exhibit P1), a certificate of seizure (Exhibit P2), and the Islamic cap, Baraghashia (Exhibit P3), respectively. According to the prosecution evidence, on 8 th April 2021 at about 05:20 hours, while at Kwa Mnyamani, Buguruni, the complainant (PW1) was attacked by three men during rainfall. Two of the assailants confronted and assaulted him, while the third, who was armed with a knife, robbed him of TZS 130,000.00, a Baraghashia valued at TZS 15,000.00, and Maasai shoes valued at TZS 12,000.00. It was the testimony of PW1 that during the incident, which lasted about eight minutes, the accused bit him and injured his hand. PW1 further stated that the area was lit enough for

3 him to see the assailants properly, as two assailants were known to him by appearance, because he frequently saw them at Buguruni Mabandani. Soon after the incident, PW1 reported the matter to Buguruni Police Station, where he obtained a PF3 form and received treatment at Amana Hospital. Two days later, that is, on 10 th April 2021, PW1 saw PW3 wearing his Islamic cap. On asking him, PW3 told the complainant that he got it from the appellant. Thus, PW1 went to report the recovery of the cap to Buguruni Police Station. Following the report, PW2, a police officer, accompanied the complainant to a video centre where the accused was found wearing the cap (Exhibit P3). Upon arrest, the accused claimed that he had purchased the cap from one Sharon at Chama Buguruni at TZS 2,000.00. As such, PW2 prepared a Certificate of Seizure (Exhibit P2), which was signed by the witnesses, the accused, and the complainant (PW1) at the scene of arrest. According to PW3, on 8 th April 2021, the accused brought him the cap, which he was found by PW1 wearing on 10 th April 2021 when he met PW1. PW3 confirmed that PW1 immediately identified the cap as the one robbed from him on 8 th April 2021.

4 In defence, the appellant stood as the lone witness (DW1), and he did not tender any exhibit. His testimony was relatively brief. He refuted the accusations, saying that on 4 th April 2021 at about 01:00hours, while at Ben Pub, Buguruni, he was arrested by persons identifying themselves as “Ulinzi Shirikishi” on suspicion of criminal activities . Thereafter, he was taken to Buguruni Police Station, where he was remanded. He further stated that on 12 th April 2021, an investigator recorded his particulars and ordered him to sign certain documents on the pretext of bail arrangements, but he remained in custody until 2 nd June 2021, when he was arraigned and charged with armed robbery. The appellant adamantly denied involvement in the offence, nor did he admit to being found in possession of the cap. He also disputed knowing PW3. At the end, the trial Court was satisfied that the accusations against the appellant were proved beyond a reasonable doubt. It thus found the appellant guilty and convicted him of the charged offence. Consequently, it sentenced the appellant to imprisonment of thirty (30) years. Discontented with both conviction and sentence, the appellant has come to this Court to challenge the trial Court’s decision based on five grounds:

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1. That the learned trial magistrate erred in both law and fact by convicting the appellant based on a charge that had a variance on the properties stolen and items mentioned by the complainant and their value.
2. That the learned trial magistrate erred in both law and fact by convicting the appellant based on unreliable and contradictory evidence from the prosecution witnesses.
3. The learned trial Magistrate erred in both law and fact by convicting the appellant based on Exhibits P1, P2 and P3 that were obtained and tendered contrary to the law.
4. That the learned trial Magistrate erred in both law and fact by convicting the appellant based on unreliable visual identification from the prosecution witness.
5. That the learned trial Magistrate erred in both law and fact by convicting the appellant based on a case that was not proven beyond a reasonable doubt. Before this Court, the appellant appeared in person (unrepresented), whereas the Republic was represented by Ms Chesensi Gaviole, the learned Senior State Attorney. By consent of both parties, this Court ordered the appeal to be disposed of through written submissions. The submissions were duly filed as ordered. I register my appreciation for the

6 parties ’ informative submissions. I have carefully read and considered them in my deliberations. In his written submissions, the appellant heavily and to a great extent attacked PW1 ’s visual identification evidence of the accused and the alleged cap. The Appellant lamented that the conviction was unsafe as it was based on a mistaken and unreliable visual identification. It was argued that although PW1 claimed to have known the appellant before the incident, such prior familiarity alone was insufficient in law to ground a conviction. To back up his submissions, the appellant cited a litany of authorities, including Flavian Gaspal vs Republic, Criminal Appeal No. 643 of 2022, Waziri Amani vs Republic, (1980) TLR 250, and Julius Mwanduka @ Shila v Republic, Criminal Appeal No. 322 of 2016 (Arusha) [TANZLII] at page 12, which emphasise on the visual identification evidence as the weakest form of evidence unless the conditions at the scene are favourable and the witness gives clear particulars of the assailant. He contended further that the incident occurred at about 05:00 hours at night, yet PW1 failed to describe the source, intensity, or positioning of the light, nor did he give any distinctive features of the assailants, such

7 as the attire or physical characteristics. It was further argued that PW1’s general assertion that he knew the appellant from Buguruni Mabandani did not satisfy the legal threshold for sufficient identification, rendering the conviction unsafe. Similarly, the appellant challenged the trial court’s reliance on the certificate of seizure (Exhibit P2) and the cap (Exhibit P3), submitting that the prosecution failed to prove ownership or proper identification of the recovered items by the complainant. It was argued that neither PW1 nor PW3 sufficiently identified the cap as belonging to PW1 through distinctive marks, and therefore, the doctrine of recent possession was improperly applied. To bolster his submission, he cited to me the cases of Matola Kajuni vs Republic, Criminal Appeal No. 147 (unreported), Mussa Abdallah & 4 Others vs Republic, Criminal Appeal No. 200 2016 (unreported) and Lomayan Kivuo Babuu vs Republic, Criminal Appeal No. 591 of 2016 (unreported). In the same vein, it was also contended that the failure to call the medical doctor who filled in the PF. 3 (Exhibit P1) weakened the prosecution's case regarding the alleged injuries.

8 Finally, the appellant concluded that the prosecution's evidence was contradictory, uncorroborated, and fell below the standard of proof beyond a reasonable doubt. He cited the case of Woolmington v DPP (1935) C. A 463 and Section 3(2)(a) of the Evidence Act, [Cap. 6 R.E. 2022], to substantiate his contention. He thus prayed that the appeal be allowed and the conviction quashed. In rebuttal, the learned State Attorney dismissed the appellant’s complaints regarding the anomalies in the visual identification evidence of the appellant and the alleged cap (Exhibit P3). The learned Senior State Attorney elaborated that PW1 gave clear evidence that the scene was well-lit by tube lights and that the offence occurred in a residential area with additional lighting. She contended further that the conditions were sufficient for proper identification. She also cited the case of Waziri Amani vs the Republic (supra) to cement her assertion. More so, she strongly argued that PW1 knew the appellant prior to the incident, and the encounter lasted approximately eight minutes, allowing sufficient opportunity for recognition. She relied on the principle that identification by recognition is more reliable than identification of a

9 stranger. To bolster her submission, she cited the case of Marwa Wangiti Mwita & Another vs Republic [2002] TLR 39 (CA). On the issue of reporting, she submitted that PW1 reported the incident promptly and later consistently identified the appellant, including reporting the discovery of his stolen cap (Exhibit P3). Regarding the alleged failure to call the doctor, she contended that under Section 152 of the Evidence Act, the prosecution is not required to call a specific number of witnesses, provided the evidence on record is sufficient. She relied on the cases of Wambura Marwa Wambura vs Republic , Criminal Appeal No. 115 of 2019 [2022] TZCA 429, and Hemed s/o Said v. Republic [1987] TLR 117, to substantiate her contention. On the ownership of the cap, she submitted that PW1 positively identified it as his property, having uniquely made it himself, and PW2 corroborated its recovery from the appellant. She added that the certificate of seizure (Exhibit P2) was duly signed and admitted without objection. She cited to me the case of Mohamed Funzi & Another vs Republic, Criminal

10 Appeal No. 198 of 2007, to insist that failure to cross-examine on a material issue amounts to acceptance of the evidence. In a brief rejoinder, the appellant reiterated his submission in chief. On my part, having dispassionately scanned the record, rival submissions, and the grounds of appeal in their totality, I find that the grounds of appeal in the appellant's memorandum of appeal are mainly centred on the following complaints:-

1. Whether the visual identification of the appellant was sufficient.
2. Whether the offence of armed robbery was proved beyond a reasonable doubt by the prosecution. This Court, being the first appellate forum, is enjoined to re-evaluate the evidence and arrive at its own conclusion. See the cases of Khalife Mohamed vs Aziz Khalife & Another (Civil Appeal No. 97 of 2018) [2020] TZCA 33 and Khamis Said Bakari vs Republic (Criminal Appeal No. 359 of 2017) [2020] TZCA 259. Cognisant of this settled principle of law, I therefore belaboured to appraise the trial court record with a view to ascertaining whether the trial Court rightly arrived at the conviction verdict.

11 To start with, the first complaint is about the visual identification of the appellant. It is settled law that evidence of visual identification, particularly in difficult circumstances, must be examined with the greatest caution. See the case of Waziri Amani v Republic (supra). In the instant appeal, a s rightly submitted by the appellant, PW1 stated that there were tube lights at the scene, but could not provide sufficient particulars regarding the exact source, position, or intensity of the light at the scene. To cap it all, PW1 did not describe the attire, physical appearance, or any distinctive features of the assailants immediately after the incident. In my opinion, the mere assertion that the area was lit by tube lights without further particulars was insufficient to establish favourable conditions for an identification. Besides, it is from the records that the incident occurred during early morning hours while it was raining. Such circumstances called for greater caution before acting on the evidence of identification. Thus, it is my considered finding that the conditions for proper identification were not sufficiently favourable to exclude the possibility of error. Indeed, the inconsistencies and omissions identified herein create doubt which, in criminal proceedings, must be

12 resolved in favour of the appellant. In the results, I find this ground of complaint merited and allow it. Coming to the issue of whether the charge of armed robbery was proved by the prosecution against the appellant. Having discredited the visual identification evidence in the first ground of complaint, it is my considered opinion that by looking at the totality of evidence in this case, the only remaining evidence connecting the appellant with this case is that of the cap (Exhibit P3). While PW1 claimed ownership of the item, the prosecution did not sufficiently establish distinctive features before recovery to conclusively connect the said cap to PW1. I find that the evidence relating to the identification and ownership of the recovered cap is doubtful. Apart from saying that he made it himself, nothing useful was provided by the complainant (PW1). Furthermore, while PW1 alleged that the appellant was arrested wearing the cap on 11 th April 2021, PW2, the arresting officer, testified that he arrested the appellant on 10 th April 2021. For clarity, part of PW1 evidence reads; ‘On 10/4/2021 one of my uncles known as SAID HANTE is showing video telephoned me that his

13 deck and other things have been taken by police so we went to police before going to police Buguruni one of the workers of SAID HANTE wore my Baraghashia stolen by those who attacked me the uniqueness of it is that I made it myself . Upon asking him, he told me that the owner is there (saying Hassani). The following day I saw Edwin wearing my Baraghashia so I requested police and arrested him to Buguruni police station.’ [Emphasis added] Part of PW2 evidence reads; ’On 10/4/20211 was at police Buguruni where the complainant came and said he has seen a person at Buguruni Madenge with his stolen properties days before so I went with him for arrest at the video centre.’ When the prosecution’s evidence is considered against the appellant’s evidence, it leaves me with no doubt that the prosecution’s evidence was too weak to ground the conviction. Admittedly, PW1 , PW2 and PW3 ’s testimonies were not consistent and therefore unreliable. See Goodluck Kyando vs the Republic [2006] TLR 367 on the credibility of witnesses.

14 Indeed, the appellant’s evidence raised a reasonable doubt in the prosecution’s evidence. With the above observations , I find that the trial C ourt wrongly assessed the evidence and, as a consequence, arrived at the wrong verdict . T hus , I also allow this ground of complaint. In view of the above, I am inclined to hold that the prosecution's evidence did not establish the appellant’s guilt to the hilt. Had the trial Magistrate properly evaluated the evidence, he would not have arrived at the decision he made. All said and done, I find merit in this appeal and therefore allow it. Consequently, I quash the conviction and set aside the sentence imposed by the trial Court. The appellant should be immediately released from custody unless he is continually held for other lawful purposes. It is so ordered. Dated at Dar es Salaam this 5 th day of June 202 6. A.A. Mbagwa JUDGE 05/06/2026