Godfrey Richard Ngereza vs Republic (Criminal Appeal 22364 of 2025) [2026] TZHC 3015 (5 June 2026)

IN THE HIGH COURT OF TANZANIA TANGA SUB-REGISTRY ATTANGA CRIMINAL APPEAL 22364 OF 2025 (Appeal arising from the judgment of the District Court ofLushoto at Lushoto dated Iff* 1 April, 2025 in Criminal Case No.29573 of 2024) GODFREY RICHARD NGEREZA ..................................................... APPELLANT Versus REPUBLIC ......................................................................................RESPONDENT JUDGMENT K. R. MTEULE, J. 02 nd June, 2026 & 05 th June, 2026 This is the Judgment in respect of the Appeal arising from the decision of the District Court of Lushoto in Criminal Case No. 29573 of 2024 delivered on 16 th April, 2025, whereby the Appellant was tried, convicted, and sentenced to serve Thirty (30) years imprisonment for the offence of Armed Robbery contrary to Section 287A of the Penal Code [Cap. 16 R.E. 2022]. Being aggrieved by both conviction and sentence, the Appellant preferred this appeal seeking to quash the conviction, set aside the sentence, and be set at liberty. The background of the case, as gathered from the trial court records, is that the appellant in this Court, Geofrey Richard Ngereza, was arraigned before the District Court of Lushoto, charged with Armed Robbery contrary to Section 287A of the Penal Code [Cap 16 R.E 2022], which he pleaded not guilty. Page 1 of 18

It was the prosecution's case that on 23 rd September, 2024 around 1100 hours, the accused went to the residence of one Kennedy Titas Kadianja's (PW1) house where he choked him, withdrew a knife, warned him not to raise alarm on threat of death, and ordered him to lay down. That in the course of the incident, he stole an Azam decoder bearing Reg. No. SN BI 10770721608826 together with an Airtel modem. It was further the prosecution's case that the accused person was identified by the complainant together with the ten cell leader, one Athumani Ally Mdoe (PW2), while fleeing from the scene and being chased, and that during the chase he dropped a mobile phone, the make of TECNO and a knife. It was also the prosecution's case that on 25/09/2024 at about 1600 hours, acting on information, Inspector George (PW4) arrested the accused person at Mombo, searched him and found him in possession of the Azam decoder and Airtel modem, which were seized in the presence of an independent witness. It was further alleged that the appellant was interrogated at Lushoto Police Station and made a confession to the offence, and later, on the following day, upon being taken before a Justice of Peace, Hon. Irene Kilusungu, where his extra-judicial statement was recorded, he maintained his confession. It is a further fact that on 26/09/2024, Inspector Rashidi-PW5 conducted an identification parade at which the accused person was identified by the complainant (PW1), and the complainant also identified the seized Azam decoder and Airtel modem as his property. During trial, the respondent herein successfully managed to tender the following documents which were admitted by the court, certificate of seizure {Exhibit Pl) , a Page 2 of 18

black mobile phone makes TECNO and a knife having a black handle (Exhibit P2), Azam decoder with serial number 10770721608826 white in colour and Airtel modem white in colour (Exhibit P3 collectively, certificate of seizure seizing Azam decoder and airtel modem (Exhibit P4), and identification parade register [form no. PF186] (Exhibit PE). Subsequently, the trial Court found the Appellant guilty of the offence, convicted him under Section 235(1) of the Criminal Procedure Act [Cap 20 R.E 2022], and sentenced him, pursuant to Section 287A, to serve thirty (30) years imprisonment. Being aggrieved by the said conviction and sentence, the Appellant preferred this appeal to this Honourable Court, challenging the same on the following grounds of appeal.

1. That the learned trial magistrate erred in law and in fact by acting upon weak, doubtful and unreliable identification of the prosecution witnesses.

2. That the learned trial magistrate erred in law and in fact by convicting the appellant, while the identification parade was conducted contrary to law.

3. That the learned trial magistrate erred in law and in fact by acting upon the doubtful prosecution exhibits whose chain of custody is broken. Page 3 of 18

4. That the learned trial magistrate erred in law and in fact by failure to comply with section 192 of the Criminal Procedure Act (CAP 20 R.E 2022)

5. That the case against the appellant was not proved beyond a reasonable doubt. The appeal was disposed of by written submissions duly filed. The Appellant appeared in person, while Mr. Nathaniel Chagama, the Learned State Attorney, represented the Respondent. The submissions are summarised hereto. The appellant, being a layperson, made submissions in a general manner without adhering to the sequence or specific number of the grounds of appeal, substantially contending, as follows; In the 1 st point of appeal, the appellant submitted that on the complainants own testimony, she was compelled to lay down facing the ground throughout the incident, a circumstance which rendered positive visual identification of the assailant impossible. He further submitted that the alleged facial identification reported to PW2 was legally unsafe and incapable of sustaining the conviction. On the issue of the identification parade, the appellant submitted that the law mandatorily required the holding of an identification parade where the identifying witness had not previously known the suspect. It was further submitted that, despite allegations by PW1 that an identification parade was conducted at Lushoto Police Station, the prosecution failed to prove the same, as Page 4 of 18

PW2 did not testify on its conduct, no identification parade register was tendered, and no parade witnesses were called. The appellant, therefore, submitted that the purported identification was lock-up identification. Regarding weak prosecution evidence on recovery of exhibits, it was submitted by the appellant that, PW4 gave vague and general evidence merely stating that he had seen the appellant on the street, which was insufficient in law to sustain a conviction, and no prosecution witness proved that the phone and knife admitted as exhibits were recovered from or belonged to the appellant. It was further submitted that PW1 did not see the appellant dropping the exhibits, failed to provide particulars of the phone or disclose serial numbers of the allegedly stolen items at the earliest opportunity, rendering his testimony unreliable. The appellant thus submitted that the prosecution failed to prove the case beyond reasonable doubt and prayed that the conviction be quashed, the sentence set aside, and the appellant be set at liberty. The respondent while contesting the appeal, through Mr. Chagama, SA, in respect of the 1 st point of appeal, submitted that, the identification evidence was credible and supported by a properly conducted identification parade in accordance with Police General Orders No. 232 as reflected in Exhibit P5, and that the recovery of stolen items shortly after the incident provided strong corroborative circumstantial evidence connecting the Appellant to the offence. It was lastly submitted that PWl's evidence showed both initial observation and close face-to-face confrontation during the robbery, coupled with a positive Page 5 of 18

identification at the parade, and that the Trial Court correctly applied the principles in WAZIRI AMANI V. REPUBLIC [1980] TLR 250 in finding that the prosecution had proved identification beyond a reasonable doubt. In relation to the 2 nd point of appeal, Mr. Chagama submitted that the Appellant's allegation that no identification parade was conducted was wholly unsupported by the record and was directly contradicted by the sworn testimony of PW5, who detailed that the parade was properly conducted in compliance with Police General Orders No- 232. It was further submitted that PW5 explained the procedure, including the selection of eight persons of similar appearance, the Appellant's participation and choice of position, the isolation of PW1 before identification, and the positive identification by touching the Appellant's shoulder, all of which were duly recorded in Exhibit P5. It was lastly submitted that PW2 had no role in conducting the parade, that PW5 was the competent officer who testified on it, and that there was no legal requirement for all parade participants to testify. In respect of the 3 rd point of appeal, which Mr. Chagama labelled as C, it was submitted that, PW1 chased the Appellant after the robbery, PW4 witnessed the pursuit and recovery of the phone and knife along the escape route, and PW2 confirmed seizure of the same items from the scene and documented them under Exhibit Pl. It was lastly submitted that the combined evidence of PW1, PW4, and PW2 sufficiently established beyond reasonable doubt that Exhibit P2 was Page 6 of 18

dropped by the Appellant while fleeing, and that arguments on phone functionality or SIM card particulars were immaterial in law. In respect of the 4 th point of appeal, which was labelled as D, The Respondent submitted that, the decoder was recovered from the Appellant by PW2, seized under Exhibit P4 duly signed by the Appellant, and later produced in Court as Exhibit P3 where it was identified by its observable serial number and other physical features. It was further submitted that there is no legal requirement that serial numbers must be disclosed at the earliest report, as identification may properly be made by description and later confirmed by serial number. It was lastly submitted that the Appellant's own signed acknowledgment of recovery, coupled with possession of recently stolen property, provided strong corroborative evidence of guilt as affirmed in Juma Mugaya @ Mugaya Jumanne Masemele And 5 Others Vs Republic (Criminal Appeal No. 656 Of 2021) [2024] TZCA 966. Regarding the 5 th point, which Mr. Chagama, the Respondent's learned state attorney labelled as D, it is argued that, the prosecution evidence formed a consistent chain of independent proof establishing the Appellant's guilt. He submitted that PW1 identified the Appellant at the scene and at a properly conducted identification parade (Exhibit P5) while PW4 placed the Appellant fleeing while dropping Exhibit P2, and PW2, together with PW3, established recovery of stolen property from the Appellant under Exhibit P3 and Exhibit P4. According to him, all the ingredients of armed robbery under Section 287A of Page 7 of 18

the Penal Code were duly proved as affirmed in Fikiri Joseph Pantaleo @ Ustaadh Vs Republic (Criminal Appeal No. 323 OF 2015) [2016] TZCA 880, and that the Trial Court rightly found the case proved beyond a reasonable doubt. Mr. Chagama concluded the length of his submission by emphasising that an appellate court shall not interfere with findings of fact unless the trial court misdirected itself, as stated in Felicia Valerian Masao vs Selina Marcelian Masao (Criminal Appeal No. 37 OF 2021) [2021] TZHC 6400. He further added that the trial court correctly applied the law on identification, properly evaluated the evidence, and reached findings fully supported by the record, with no legal or factual basis for interference. He lastly submitted that the sentence of thirty (30) years was a mandatory minimum under Section 287 A of the Penal Code, and could not be reduced; the appeal lacked merit in its entirety. Having carefully considered the grounds of appeal together with the respective submissions of the parties, this court is to decide one issue as to whether the appeal has any merit. In determining this issue, I distil the grounds of appeal into the following distinct points for determination: The first point is derived from the 1 st , 2 nd and 5 th grounds of appeal. They collectively raise the question of the proof of the respondent's case on the premise of identification of the Appellant as the culprit of the offence. The second point is covered by the 3 rd ground relating to the validity of the chain of custody of the exhibits. The third point is in the 4 th ground of appeal, which touches on compliance with Section 192 of the Criminal Procedure Act It is against this settled legal background Page 8 of 18

that this Court shall now proceed, as the first appellate court, to re-evaluate the evidence on record, the power exercised pursuant to the settled appellate mandate as pronounced by the Court of Appeal in its jurisprudence in Gaudence Sangu vs Republic (Criminal Appeal 88 of 2020) [2022] TZCA 784 (7 December 2022) TanzLii, and determine whether the trial court correctly found the Appellant guilty, having regard to the principles governing identification as outlined above. I commence with the 1 st point, on whether the Respondent proved its case beyond a reasonable doubt, such issue being founded on the alleged visual identification of the Appellant at the scene of the offence and the subsequent identification parade. To properly address this question, I will assess the trial court's correctness in deciding that the respondent/prosecution discharged the burden of proving the offence of armed robbery beyond a reasonable doubt on the disputed question of the identity of the Appellant. Identification is an essential aspect in proving elements of an offence, and for this case, of theft, the use or threat or violence, and the use of a weapon. It was so articulated in Ramadhani Hamisi Mkwembya @ Kigi vs Republic (Criminal Appeal No. 396 of 2021) [2024] TZCA 395 (4 June 2024), read also the case of Chacha Makonge @ Mwansi vs Republic (Criminal Appeal No. 501 of 2020) [2024] TZCA 587 (18 July 2024), both cited in TanzLii. Central to this inquiry is whether the identification of the Appellant has been legally and credibly established, with the Appellant being positively and reliably identified to satisfy the legal requirement. Page 9 of 18

Having evaluated the totality of the evidence on visual identification and related circumstances, it appears that there are two controverted types of identifications, namely the visual identification and the identification parade. I am to assess the legal foundation governing both of them. It is well settled that the prosecution bears the burden of establishing the identity of an accused person beyond a reasonable doubt, a principle emphatically articulated by the Court of Appeal in Ahmad Hassan Marwa vs Republic (Criminal Appeal No. 264 of 2005) [2010] TZCA 183 (17 September 2010) TanzLii. Starting with the visual identification, this is inherently a delicate undertaking and must be subjected to the strictest scrutiny. See the Court of Appeal authority in Waziri Amani Waziri Amani v Republic (Criminal Appeal No. 55 of 1979) [1980] TZCA 23. In this case, it was held that a trial court must carefully examine the prevailing conditions under which the identification was made. Such conditions include lighting conditions, distance, duration of observation, and the witness's prior familiarity with the accused. Pursuant to that authority, the Court must warn itself of the danger of relying on such evidence, particularly where it is tendered by an uncorroborated single witness. The centre of the debate amongst the parties is on the possibility the victim (PW1) to positively identify the Appellant as at the material time while lying face down during the robbery, having been forced to do so while the assailant was placing a knife on his throat. Page 10 of 18

On the other hand, learned State Attorney Mr. Chagama submitted that PWl's identification was not a single fleeting observation but a continuous encounter beginning at the window, where PW1 observed the Appellant attempting to break in under tinted but visible conditions, followed by a face-to-face confrontation inside the sitting room lasting approximately ten to fifteen minutes at dose range, estimated at about five steps, during which PW1 had ample opportunity to observe the Appellant's physical features before being forced to lie down. It was further submitted that PWl's description at the earliest opportunity, coupled with the identification parade conducted at Lushoto Police Station where PW1 positively identified the Appellant, strengthened the prosecution case and eliminated the possibility of mistaken identity. On this foundation, having carefully considered the rival submissions, the Court finds that the prosecution/respondent evidence discloses two principal factual issues requiring determination. The first is whether PWl's visual identification at the scene was reliable in light of the circumstances under which the offence was committed, particularly whether the earlier observation at the window and subsequent face-to-face encounter satisfied the legal safeguards set out in Waziri Amani v Republic(supra). I have re-examined PWl's testimony that upon hearing his window shaking he woke up and observed a short, young and black male person carrying a bag attempting to break into his house through a tinted window, through which he was able to see the intruder from inside while remaining unseen. This is in line Page 11 of 18

with Mr. Chagama's account in his submission that PWl's identification was not a single fleeting observation but a continuous encounter beginning at the window, where PW1 observed the Appellant attempting to break in under tinted but visible conditions, followed by a face-to-face confrontation inside the sitting room at a close range, estimated at about five steps. When the above circumstances are tested against the principles in Waziri Amani v> Republic and other list of authorities, including the case of Director of Public Prosecutions vs Mohamed Said & Another (Criminal Appeal 432 of 2018) [2020] TZCA 1915 (18 December 2020) TanzLii, the following is observed. The source and intensity of light, the proximity between the witness and the suspect, and the duration of the encounter, as well as the conduciveness of the circumstances, PWl's testimony gives an account which positively confirms the test. His account on initial observation at the window and the subsequent prolonged face-to-face encounter lasting for approximately ten to fifteen minutes within the sitting room, all happening in daylight, is a confirmation that the victim clearly saw his assailant The proximity of five steps is inconsistent with the possibility of mistaken identity. The totality of early visual exposure and sustained interaction under conditions permitting continuous observation, as opposed to a fleeting glance, satisfies the evidential safeguards set out in the cited authorities, thereby strengthening the reliability of visual identification, thus affirmatively answering the framed question. Page 12 of 18

On the identification parade, the parties' debate centres on the legal propriety of its conduct pursuant to Police General Orders No. 232, specifically on PW2's failure to testify on its conduct, the prosecution ’ s failure to tender the parade register, and to call any parade participant to testify. The law recognises that an identification parade is not a substitute for visual identification at the scene but a procedural mechanism intended to test and confirm the reliability of a witness who claims to have previously seen the offender. This position was underscored by the Court of Appeal in Riziki Ally Mfinanga @ Kicheche vs Republic (Criminal Appeal No, 315 of 2020) [2023] TZCA 17546 (24 August 2023) TanzLii. The Court of Appeal emphasized in that case that identification parade evidence must be conducted in strict compliance with established safeguards to avoid suggestion, and that its evidential value is dependent on the credibility of the prior visual identification it seeks to confirm. The Court has carefully re-evaluated the evidence of PW1 and PW5 alongside the Appellant's contention. PW1 testified that on 26.09.2024 he was called to Lushoto Police Station where he participated in an identification parade and identified the Appellant. PW5-A/Inspector Rashidi Issa Hamisi, gave detailed evidence confirming that he conducted the parade upon instructions from OCCID Lushoto, prepared eight (8) persons of similar physical appearance, ensured the Appellant was informed of his rights, allowed him to select his position in the line-up, and ensured that PW1 was kept away until the parade commenced, thereafter identifying the Appellant by touching his shoulder from both front and back. PW5 Page 13 of 18

further testified that the entire exercise was recorded in Identification Parade Form PF 186, which was admitted as Exhibit P5, duly signed by all participants, including the Appellant. To ascertain the propriety of the identification parade, I had to test the above evidence by assessing its compliance with the governing procedure in line with Police General Order No. 232. The legal position is derived from established jurisprudence including Francis Majaliwa Deus and 2 Others vs Republic (Criminal Appeal No.139 of 2005) [2009] TZCA 92 (19 May 2009) TanzLii, which requires inter alia that the suspect be informed of the purpose of the parade and his rights, including the right to object to participants, the right to have a friend or representative present; that not less than eight persons of similar appearance to be assembled; that the suspect be allowed to choose his position; that the witness be kept away from the parade area until called; that identification be done without suggestion or prompting; and that all steps, including identifications and objections, be recorded in the parade register. From PW5's testimony, the Court is satisfied that these core requirements were substantially complied with, particularly as the Appellant was informed of his rights, selected his position between the third and fourth persons, eight persons were assembled, PW1 was brought separately, and the identification was made without interference, and duly recorded in Exhibit P5> However, the Court notes that certain aspects raised by the Appellant, particularly the absence of testimony from parade participants other than PW5 and PW1, do Page 14 of 18

not, in law, vitiate the parade, as the legal requirement is proof of proper conduct of the parade rather than calling all participants as witnesses. Equally, PW2's failure to testify on the parade is immaterial since he was not the officer who conducted it. The allegation of a "police lock-up identification" is not borne out by the record, which dearly shows a structured parade conducted at the police station under a designated officer in compliance with procedural safeguards. I could not see any valid assertion which can illegalize the identification of the parade.. Having found both the visual identification and identification parade having been sufficiently established in evidence, the first legal issue concerning the proof of the Respondent's case on the basis of identification of the Appellant as the perpetrator of the offence, is affirmatively answered. I therefore hold that the trial court was correct in finding that the Appellant was properly identified as the person who committed the offence, and that the conviction founded on such identification evidence was safe in law. On the second issue relating to the evidential weight and chain of custody of Exhibit P2 (black mobile phone makes TECNO and a knife), this Court has carefully re-evaluated the evidence on record vis-a-vis the competing submissions. It is evident from PWl's testimony that after the appellant fled, he chased him together with PW2 and later assumed that the phone and small knife found on the ground belonged to the Appellant, as they were discovered along the path of pursuit. However, no witness testified to having actually seen the Page 15 of 18

Appellant drop the said items. Further, there is equally no evidential basis establishing exclusivity of access to the scene to exclude the possibility of intervention by any other person. The prosecution ’ s evidence, therefore, falls short of establishing an unbroken chain linking Exhibit P2 to the Appellant beyond a reasonable doubt. Nevertheless, PWl's evidence that he was threatened with a knife at close range is noted; however, the record does not demonstrate that the specific knife allegedly used during the incident was clearly described, identified with particularity at the earliest opportunity, or conclusively linked to Exhibit P2 in a manner that removes reasonable doubt as to its origin and connection to the Appellant. The evidence linking the knife and the phone to the appellant remained an assumption. In the absence of direct evidence that the Appellant dropped the items or that he was the only person who passed through that route, such an assumption remains speculative. This ground of appeal is therefore meritorious. As to whether the trial magistrate erred in not finding the prosecution's case to have been proved beyond a reasonable doubt, I have considered the totality of the evidence and the findings of the court. The conviction was not based solely on the evidence of the knife and the phone found on the ground while chasing the assailant, which is already found to have no proven connection with the Appellant. The trial Magistrate based his conviction on, among other pieces of evidence, the uncontroverted evidence of PW2 that the accused person was arrested in possession of an Azam decoder, white in colour and a modem make of airtel, Page 16 of 18

white in colour (Exhibit P2), the properties stolen from PW1. The Appellant's being found in possession of the items stolen from the victim, coupled with his visual identification as the assailant and the identification parade, directly links him to the commission of the offence. In totality, the trial Magistrate did not err in convicting the appellant. The case was proved beyond a reasonable doubt. Neither the Appellant nor the respondent argued the 3 rd point derived from the 4 th ground of appeal concerning the compliance with Section 192 of the Criminal Procedure Act. The point is therefore considered to have been abandoned and is hereby disregarded. In view of the foregoing, this Court finds the Appeal unmeritorious. The appeal is therefore-dismissed. It is so ordered. anga this 5 th June, 2026 REVOCATI MTEULE JUDGE Court: The Judgment is delivered virtually on this 5 th day of June, 2026, in the presence of James Rugaimukamu Learned State Attorney for Appellant, and the appellant appearing in persorp-, — A REVOCATI MTEULE f JUDGE 5 th June, 2026 Page 17 of 18