Gabriel Mwaknemela vs Republic (Criminal Appeal No 47 of 2000) [2000] TZHC 363 (11 September 2000)

J. IN THE HIGH COTJRr OF TANZANIA AT MBEYA C4INAL PPEAL NO 4 7 OF 2000 ' .............(Originating, from Kyela 'District Court Criminal Case No, 151/95) GABRIEL I4WAKNiELA..,....,....,..o..APPELLANT .........' . VEUS.. . THE REPUBLIC. . • • • 00 * • , REPUBLIC JU.DGEMENT WA1'BUX- 1 .SOA,N O (pHvI E,.J.) . . ... . This judgement follows.an appeal filed by on Gybrial Mwalcanamela, against the decision of Kyeia District Court which convicti him of anoffence.of robbery with oepc.,e c/sm 25 and 286 of . the. Pe.nal Code, and sentenced him,to.. serve .a sentenceff..iftez.(15) years iiiprisonrnent.. The appe]nt. -filed five grounds of. appeal, which where, mainly base.don.. he issue of idenjty, eV.j. once and Of has. defence of alibi. The appellant. asked this court to go throu'gb..his., written grounds as he had nothing,, more to. add. Mr. Mulokozi who .appeared for: the Re.public bitterly objec.ted,to the appeal saying that since there was sufficient light at the scene of the offence and the appellant was we1 known to PW2 and PW3O He:was therefore properly identified. LI'o.rever, the off.ence.:took•a long time and they were in close contact thus PW2 e.ou1d easily identify, the.: appellant and actually mentioned him leading to his • arrest. It.was ..hin : .Urt'r'coritefltion that since he,was seen at th-,scene o,i,the offence, the trial ào'rt was right in refusing the appellants defence of aib which he said did not follow the ruirproccc1ures as laid dowi i'S91+f the CPA, 1995. He thus pre-yec. that the appeal b ctinussed. Apart from the grounds filed, I have hadthe"óportunity of going through the judgement and proceedings of the lower court. And as rightly stated by Mr. Mulokozi grounds No. I - 3 of the memorundurn of appeal were chaligingrthe identification of the appellant. It is not in dispute that PW2 and PW3 knew the appellant even before the offence took place as he frequently visited the said place. It is also not in dispute that the offence took some time'and the

-2- contact appellant was in close cwith PW2 and PW3 not to mention that there was sufficient light. The fact that PW2 was beaten and was thus shocked and confused to properly identify the robbers could only be trueiit was done by persons unknown to thentIt was heldihth debf SITALIJUMA KOCHO VS. R, (199+) TLR, 206 that the appellant was properly identified asthe tube light had sufficient light to enable the appellant to be identified who was well known to the witness even before the incident. Theane was held in the case of EVA SALINGO & OTHE RS VSR (1995) TLR 220 which held that the identification of the appellants was proper as there was pl.':ible evidence to show th± the appellants were not strangers to the witnesses and that the circurnstenôes at the time were favourable for unmistaken identity. As said it was undisputed that the witnesses knew the appellant before the incident and that there was sufficient light thus there was no question of unmistaken identity. I would thus hold that the appellant was properly identified, that As for the 5th grounds/ is the defence of alibi, it is in record that the niedical sheet was not stamped and that the defence was not raised as provided for under section 94 of the CPA. In the case of SIJALI JUIViA KOCHO VR, cited,above, iO 66ürt of Appeal held that prior notice of the defence of alibi is required under the law. Again the appellant did not issue such a notice. Morever, te. as held in the above cited case that the appellant had no legal obligation to ovE the alibi but in the fact of the allegations made against him one would reasonably expect him to call the person he claims he was with at the time of the event. One wold therefore expect the appellant to even call the said Doctor who treated him a thing which again was not done and so it was proper for the trial court to refuse that defence. As for the contradictory evidence as to the money collection I would hold .:th.the trial court had a better oppo'rtunity to examine and evaluate the evidene before it and so I would have nothing to say agajust that, more because the amount spoken is not the very issue here. In view of the above stated reasons then, I cotinUe accordingly dismiss the appeal and the appellant will serving his sentence It is so ordered, S • A. PRINCIPAL RESIDENT MAGISTRATE (E.J.) 11/9/2000