Gabriel Mwakamemela vs Republic (Criminal Appeal No. 53 of 2000) [2000] TZHC 269 (11 October 2000)

Lkczcp 4 : IN THE HIGH • COURT OF TANZI.NIA ATMBEYA • .iPIELLATE JURISDICTION k CRIMINAL WPEAL NO4 53 OF 2000 • (oRGINTING FROM KIELA DISTRICT COURT DISTRICT AT • rYEL IN •URINL CASE NO, 70 OF 1996) GABRIEL VERSUS THE REIUBLIC: :: ::: ::: ::::::::: :::: :::: ::: ::PESIONDENT JUDGMENT The appellant featured as the 8th accused person in an indictment in which nine persons were charged with armed robbery, erroneously cited as Itrobbery with fireormc, contrary to ss. 285 and 286 of the Penal Code. According to.the record of proceedings of the lower court, Aswile Statel Mwakyando (P11) woke up at about 1.30 a.m. on 19th January, 1996, to catch a bus to Dar-es'Sa1aam where he was going ta buy goods for export to Malawi, As earlier agreed he passed through the residences of Obedi Mwandemele (P12) and that of Hezron Dickson (w6). Like PW1, pw6 was also traveling to Dar-es-Salaam. On his port PW2 was escorting his son who was also going to Bor-es-Salasm. BJ1 had in his possession a sum of shs.30, 000 ,001 a tin of rice and his songs personal possessions. PWl carried shs,700 1 000.00 with him and pw6 carried a hag in which he had kept a sum of shs.300,000,00. Ultimately the four people started their journey to the Bus Stand in Kyela township4 When they reached a place they referred to as Kyamba's house a group of about ten people accosted and surrounded them. One of the ten people or so shouted orders to them 1 making it clear that the four travellers were under, detention, saying; MPG OHINI YA ULINZI, SIMAI€NI At first these people were thought to he Police Officers, so the three witnesses formally

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• 2 - introduced themséles. Instead of their captors heeding the message Ihe witnesses wore ordered to sit down as one of the gangsters fired in bhe air thi as a warning. The next/ was that the travellers put down all their belongings. The four of the captors proceeded to collect every possession the witnesses had. Aswile Statel Mwakyando (PWi) sWore that of the ten people or so he managed to recognise severai including the 8th accused, who is the appellant. He managed to do so because the appellant was a long time business associate of hi In addition s the saga lasted some ten minutes and the place was lit with a tube light which was security light at Kysmbas house1 There was moonlight as well. LU the three witnesses described the area as PW1 put It. When cross- examined by the appellant as how far PW1 was from him the witness said the appellant was only four paces from him 0 Obed Andindi Mwandemele also swore that he knew the 8th accused before the robbery and that he saw him at the scene holding a gun. According to the evidence PW2 was so workedup that he decided to fight the 8thaccused. This time the old adge that discretion is the better part of valour prevailed when his companions restrained him from picking a fight with an armed person 0 In fact it was alleged by PW2 that in retaliation the 8th accused threatened to shoot him in the abdomen. PW2 also swore that the 8th accused was only four paces from him when all this was going on. When cross-examined by the 8th accused, the appellant, PW2 testified that he had known the appellant for a lpng time before this incident. Like the other witnesses Pd6 also testified that he managed to identify the 8th accused who was armed with a gun. The appellant made his defence on oath. He testified that he went to Kyela on 19th January, 1996, where he was appearing in some other criminal matter. He swore that he spent the night at the residence of one Katani, Jackson Katani (W.15) bore him out, saying the accused proceeded to Kyela the following morning, that is on 20th January, 1996 , however, learnt that the 8th accused was arrested while he was in Kyela on the fol1ing morning but made 0 0

3 - no follow-up. It seems 1 if at all, that PJ.15 accommodated the appellant because he is his brother-inlaw 9 Essentially the foregoing is the evidence upon whicK the appellant was convicted. He has aggrieved, hence this appeal. The petition of appeal contains five groi..nds. The appellant alleges in the first ground that the conditionsat the scene as described by the prosecution were not favourable to a correct identification The appellant contends in the second ground that there was, no proof of the use of the gun because the 'gun that it was alleged was used in the robbery was not sent to an expert to varify that it was indeed used. Nor was 'a spent cartridge produced in evidence. Thirdly, that there was no proof that the appellant was mentioned at the Police Station. Fifth, that the learned trial magistrate was not entitled to try the case since she had convicted and sentenced him to fifteen years imprisonment in another case. Fifthly, that the learned trial mgistrate erred in .ejecting the appellant's defence of 411i;. Mr. Mulokozi, learned Senior State Attorney, arguedt1eappea1.on behalf of the Republic. He has submitted that the aTpellaat was :..correctly identified. } entirely agree. Indeed there existed condi-tions, which favoured a correct identification. These included the fact 1 which wa6 not disputed by the appellant, that he and PW1 1 P12 and Pw6 knew one another very well 'before this incident and that there existed no bc1 'blood 'between him and the three witnesses. The second, and also important factor 1 is that the 'plce w ]i%ith elecricity and moonlight Thirdly, the appelant was only some four paces from these witnesses. hnd ) .as the learned Senior State Attôney hs shmtted, the r. t I appellant had a unique feature as he was the only one whQ , was armed with a .1; gun, In these circumstance the witnesses had all the conditions whih favoured a correct identification. I am satisfied, therefore4 that the conviction is unimpeachable as the alibi is clearly an after-thought that was intended to save the accused's skin. Upon the f'orefoing considerations the appeal is dismissed; conviction and 4, 4

L1 . sentence are upheld Now the trial dourt made an order that the convicts do pay conipendation to the prosecution witnesses after they serve their sentences. That was, of course, an errors Such orders takeimeJiate effect. Thus the trial order as to compensation is varied so as to take immediate effect Judgment to be delivered by the Distric Registrar. J .M., MACKI:NJA JUDGE 2.10 20O0 11 0 00,2000 Coran S.VGO Karua, Ag DR Appellant: Absent Respondent: Nr. Mu1okozi assisted by. the Mkasimbngwa, State Attorney trainee D: Judgment delivered in chambers ths 11th day of October 2000 in the presence of the Mulokozi, being assisted by the Mkasimongwa, State Attoieainee and in the absence of the ape11ant. Co sgd S.V.G, Karua, Ag. L x 11.10,2000 tifdy±rue 7 copy 0+' 11 origir.aludgrnent, DISTRICT.GISTRAR i4HEYI'4