Nalombo Nyamihindo vs Republic (HC Criminal Appeal No. 37 of 1999) [2000] TZHC 473 (29 September 2000)

.. ,. IN Trill HIGH COURT 0:-i' TANZANIA APPELLATE JURISDICTION (HO) CRIMINAL APPFAL NOo 37 OF 1999 (Original Criminal Case Noo 7 of 1993 of the District Court of Kibondo District at Y.J.bondo Before: P. Y<ll Maumba, Esqe, District Magistrate)" j N.ALOMBO NYAMIHINDO 0 C, •o • II .,._ APPELLA.LifT VERSUS THE REFUBLIC •• •• •• • 0 Cl 0 0 O

RESPONDENT .. JUDGMENT MASANCHE 2 J.: _The appellant Nalombo s/ o Nyarnihindo, was charged alone.; side with three others for the offence of robbery with violeno2 c/s 285 and 286 of the Penal Code.. He was the second accused at the trialo He was convicted and so was the first accused' and the third accusedo The fourth accused was acquitted. These two others who were convicted are not appealing; it would seem. The a.ppella,nt was sentenced to fifteen years impris0Tu11ent. He ,. now appeals to this Court. The facts of the case were not complicated: On 22/12/92 the Leop_0rq Eu~_o_bia Po W .1 and his wife Prudenciana 9Y.J2._rian PoWo2, wec-e sleeping in their house in Nyagwijima village in Kibondo Districto At 3:00 acimo some thugs pounced at their door. They entered. They beat up the occupants and left with 80000/= and some tins of groundnuts. The thugs injured the complainant with a panga .. The wife just got tied up4 The matter was reported to the Police and four persons were arrested by the Police, including the present appellant .. Mis usual with such cases of banditory at night, the

) (HC).Cr.,App.,37/99.() 2 crucial issue was one of identification~ "!,J~ he appellant (we talk of the appellant Nalombo Nyamihindo) identified? Mr. Ndunguru, the senior state attorney who represented the Republic thinks he ·,1as not'° He doubts if the torch which was lying on the floor glowing ever assisted in the identification., 11:e also doubts if the woman i..:identified any of the bandits. It is said that the appellant tied up the hand,s of the woman (p6r,1.-2) but that he did so while he (appellant) was standing behind the witness (P.W .. 2). The celebrated case on identificetion in our Courts of law in Tanzania is the Waziri 4.!!iantAs case n980J T.,L.R. 250. The only element in this case before us which conforms to the guidelines in the Waziri 1 s case is that the bandits, it is said., are villagemate,s to this couple. I have, however, gone through the record to see the place ofth present appellant in this identification process. I see that it is scanty.,. It is only said that the appellant tied up the woman fram the back. Again, it is said that :: when the Police were looking or the bandits who invaded the home of P.W .. l and PoW.,2, the -·- appellant was arrested in a bush where he was sleeping .. ·. I think these elements in the identification process are not adequateo So, I agree with l'lr. ttdunguru, senior state attorney 1 that the conviction was not Sl)u.nd and o\3nnot be supported" I allow the appealo The appellant ~~bo s/2-1I .. X£Wil;J.;ki9- sould be set free unlesG there is something else which is keepi!b.g him in Jai~ .. ~is judgmeng has nzt considered the role of the other two persons convicted, Kagi)la To;zi and Lazaro Bahati Kieri, who the record shows, have not a ppesled,... J., E. JUDGE.

... • ~ ' lQ).!! 9ro AJ2P 7 /9910 3 ... AT TABORA 29th September, 2000 Appellant: Absent Mrn Mwa.mpoma, Senior State At:vorney: for Republica