Peter Angetile Mwakitwile vs Republic (Criminal Appeal No. 96 of 1998) [1999] TZHC 231 (14 September 1999)

LQ') Pyl IN THE.HIGH COURT OF TAN.iANIA AT NBEYA (ORIGINiL JULISDICTION (Nbya Registx) CRIMINIL APF'.L NO. 96 OF 1998 (Originai Case No. 31 of 1998 of the District Court of Mbeya) PITEP ANGETILE MWAKITWILE . .. ... ., APPELLPNT Versus THE RESPONDENT JUDGMSNT WMIBtJRa, PPJO (E.J.): The appellants namely ATUFIGWEXE EDWAhD MWJIJANDE (1st Appellant) and PETER iG2ILI MWAKITWILE.:(2nd Appallant) filed a joint nicmorandu of appeal after being dissatisfied with the decision of Ivflya District Court. The fo2,1owingwere iit the grounds of the appeal:- • 1. That the learned magistrate erred in law in admitting the • purpor'te'd ctütioned statements of the appellants despite the appellants strong objections. 2. That the learned trial magistrate erred in law in taking into ..accdimt t-hè fctsôf tl poedut ion cse asadduced by the posecution during preliminary hearing and the facts in the purported memorandum of matters agreed in finding the guilty. •. appellant which was not in compliance w th the mandatory provisions of S. 192 (3) of the CPA, 1985. 3. That in the face of the glaring contradictions in the evideno of P 1 .4.1 and PW.2 the learned trial magistrate ought to have held that the appellants were not properly identified at the scene of the crime. That some findings by the learned trial magistrate are not supported by the evidence on record. That the trial magistrate erred in law in not beIiing the Second i.ppellants defence of alibi. • 6. That at the time when the offence was committed the 2nd appellant was 16 years old so the trial court erred in impossing the minimumentence of 15 years impráoonment thus Theyprayed to have the appeal allbwed and have the conviction and sentence set aside, • T + • S •• • r •

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2!. During the hearing of this aeal the 2nd appellant had nothing to add while the 1st appellant ellaborated why he believed that the evidence of PW.1 and PW.2 were contradictory in that. PL1 said he was with his son while P,2 said he Was with a woman.. He said it waawrong for the court to believe the evidence of PW2 as he was drunk. He furthr al]edged that the identifidation parade was not properly conducted as he had met the complainant more than three times at the • Po]ice Station and h , was not 'epresentedy anyone topxe that he was properly identified. He further doubted the nienner of identification which was done almost a year later while the offence occurred at night. How could PW.1 identity them with the lights of hiscar at 10.00 p.m. at night? He thus prayed to have the appeal allowed. -- In. his 'rCply Mr. Boniface who appeared for the Republic challenged the conviction by first stating that the apioellants coütionedatatements. were not properly admitted in court as the procedures of admitting the same Were not followed quot.ing the case of MSII 0MT0B V. P. (1982) TLP at p.. 131. ..% He furthr argued that the procedures of preliminary hearing U/S. 192 (3) of the CPA was not complied with and so the proceedings could not be relied for by the trial court quoting the decision of the Court of .ppeal in the case of MT 71+29SGT. BEJiIN HOLLA v. (1992LRj121. As for the, issue of the identification parade kr. Boniface said it • was actually not properly done and there is a lot of doubt as to whether the appellants were properly identified in that, . though P,l said he identified the appellants, by use of the light of his car and there was a moonlight,'he' did not ddsibe. properly how they were dressed. PW.1 said it was sudden and he fell unconcious during the . event which took place at 10.00 p.m. on 1 ?8 /96 . He d.oubted how a person who fell unconcious could identify the appeLnts a year after the event took place. The doubt was raised further as the.appellants raised a defence of alibi which the trial court failed to consider and instead raised :: the standard of proof. Now after going through the said proceedings, judgement and the reasons for the appeal, and the fadt that even the i epublic does not support the convictions for reasons herein above stated I believe that the appeal holds water and I accordingly allow it, .13

-3-- The conviction and sentence of the lower court are accordingly quashed and set asid.. The appellants b to be released from prison immediately unless they are lawfully held for another cause. It is so Ordered0 S.A.N. Wániburà PPM (E.J.) 1 L+/9/99 Appellants: Present in person. Foi Republic: Mr. Boniface present.. 1 k/9/99 • t '/ d.:\ i I T1

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