Peter Angetile Mwakitwile vs Republic (Criminal Appeal No 96 of 1998) [1999] TZHC 356 (14 September 1999)

:-: IN THE. HIGH OURI' OF TAN:.;ANIA AT fiBEYA (ORIGINAL. JU;USDICTION (Mbeya NEi'gistry) CRHili'lAL APF&L 1-io •. 9fr:. OF ·,1998 . . . ·. . . . . ;r. :, .. ; .. ~ (Qr.iginal Casf:: No.·31 of 1998 of-the,Dist:rict Court of -~~li':ieya·)- PLTER iillGETitE 1'1!UlKITW:ILZ -♦ o a· o o o ct .o o • o o • . ' . . APP:t'LLANT . · · ·, ·': · ::·- ,! · •. V.ersus, ,, . :,TH ·.REFT.JBLIC·:•:.·. o • .-. . o' o!o ~ e o o • o o • • • o .' o RESFONDENT ; .L The appellants namely ATtJFIGWN.;E ED1-./A!J.D Mlfo.IJAJ.YDE (1st Appellant) and PEI'ER [1.NGJ£'i'ILB hi\11ili:IT\JILE (2nd i-l.ppdlant) filed a 'joint ii,etnora..'1dum of appeal ;:J.lt;r' being dissatisfied with .. the decision of- Mbc)a District··, .. . ·. \ Court:·-·· 11_,1fa· nn·iwirig- .. wer.e inter alia thr; .srourids of the appeal~·- ·. .1 •. That_ the_ lear.;-ied magistrate erred in iaw in'. admitting the . . . - . .;•:·;: ; __ :·1-· '"!· . , • "; .. : ,purpor:ted c1o1utioned' stat'i:imC::nts ·of· the appellants despite . ' . . ... ~.: . / - . -;the ,ap_pellants stroi1g 'objections.- 2., Thqt the lenrned trial nmgistrate erred in law in taking --- .. in~~·-' ;;~c·o;;n·t; '·t1ie:a-t-s of-- the. ;pro.s.cu_tion case as ad'd~~-d py the J)r_psecut:l.on d\iring · preliminary he.,;r:j_ng, and the facts . in the purported memorandum of matters a·grei::d iri finding the · gui'lty appe\lan'i: _which was not in compliance w th the ,mandatory · provisions of s. 192 (3) of the CPA,. 1985. 3. That. i:p the face of the glaring contradic.tions in the evi_denl>c of p-J.1 and pt/,2 the learned trini magistrate ought to have held that the appellants were not prorerly ide_ntified at the· sc1:::ne of the crime. ,. ·4. That some findings by the learned trial m2.gistrate are -:..:/ -...· not supported by the evidence ·on record. 5. That the t ria.l mt:gistrate erred in law in_ not 1'.elLi.aci.ng the Second,.App_ellant.'s defence of alibi. 6. That :::,t t_he time when the offence was committed the 2:p.9: appellant wc1s, 16. years old so te ~ trial court erred in , impossing the minimum :'!e:n!enE: o{. 15 y_ears imprisonll)ent •. thus Theyairayed to have the appeal allo,,ed and have the c6nvi·ction ·i.uid sentence set nside. r . t ., r , , t r 1 \ ..

2 During the hearing of this arpeal the 2nd appellant had nothing to add while the 1st appellant. ellaborated why hE:: believed that the . .. - evidence of l'W .1 and P,J o2 were contradictory in that PJ.1 so.id he was with his son while_Fv;.2 said he 1,1as -with a wornano He said it was wrong for the court to beliGve th;:: evidence of H·J.2 as h2 wn.s drunk. He further alledged that the identifidation parade was not properly conducted as he had rnet the complainant more than thrE:e times at the Police Station and. h0 )II' !lot repre1?ented: }::,;f anyone to. prav e that he was proptrly identified. He further doubted the manner of idGntific,Jtion which was done almost a year later while· t-hi;; .. oJfence occurred at night. How could l:',J.1 identify them with the lights of his car at 10.00 p.m. at night'i He thus ;)rayed to he.ve the appeal allo~ved. ·

• -- :.··;- ...... ,.., ... ---·-- In his reply Mr. Boniface who appeared for the Republic challenged the conviction by first stating that the ar,pellants coutioned Etatenients were not properly ad.xnitted in court as the procedures of admitting the srune were not followed quoting the case of NS!wlL", s/o MTOEA Y. Ro (1982) TLR at p. 131. He furthc/r argued. that the procedures of preliminary ·hearing ·U/S. 192 (3) of thto CFA was not compli'ed. with and so the proceedings could not be relied. for by tha trial court quoting the decision of the Court of Appeal . in the case of MT 7429 . .§.2'.r. BEJf:..iJ,IN HOLELA v. ( 1992 )_ 'l'LR P• 121. As for the issu., of the identification parade hr. Boniface snid it was actually not poporly done and there is a lot of doubt as to whE:thcr . . . ' . . ; the appellants were properly identified in that, thqugh P'iv.1 sa.id he identified the appellruits by use of the light of ·his car 2J.1d there . 1 was a moonlight, he did not dclscribe properly. how they \vere dresseo. FW.1 said. it was sudden and. he fell -unconcious during the event . ,,. which took place at 10000 pm. on 1/8/96. He doubted how a person who fell unconcious could identify th'° appc:L ants a year nfter the evl-nt took place. The: doubt was raised further as th0 appelli:.mts raised a defente .of a1ibi ,,,hich the trial court fe,iL,d to consid2.r end instead raised the standard of proof. Now after going through the said proceedings, judgem,::nt anrl the reasons· for the appeal, and the fadt that even th,~ i-<epublic does not support the convictiJns for reasons herein above stated.I believe thGt the appeal holds water and I accordingly allow it • • • 0 ••• /3

3 - The conviction and.':", entence of the lower court are a.ccc::.'c~ ::: :· ; quashed and set aside. The appellants b to be released from pu.cc:::1 immedi2,tely u..>J.less they arc lawfully h0ld for another cai;.~ ::,. :rt is so Ordered. Appellants: Present in person. For Republic: Mr. Boniface present. 14/9/99 S.A.N. .,iai'1lburb. PRM (E.J.) 14/9/99