Fideris Kyomokha vs Republic (Criminal Appeal No. 51 of 1997) [1999] TZHC 113 (15 January 1999)

IN THE HIGH CO!JR'T' OF TANZANTA AT DAR RS SALAAM CRIMINAL APPEAL NO 51 OF 1.9Q7 (Originating from Morogoro District Court Criminal Case No. 275 of 1996) FTDERTS KYOMOKHA ........ . . .......... APPELLANT VERSUS THP. REPUBT., TC ..... . . ....... RESPONDENT J U D G R M R N T The Appel.lant, Fjdel.i.s Kyomokha, was convi.cted hy Morogoro Resi<'lent Magistrat.es's Court with r.ohhe.ry wi.t.h violence c\ss 285 and 286 of the Penal Code and sentenced to 15 years imprisonment, which .verdict he did not approve hence the appeal to this court. The prosecution had alleged that on 6\9\96 at about 5.00 pm the Appellant had stolen a gold chaj_n valued at shs. 200,000/= from Mwanzani d\o Rajabu (PW1.) ancl that he 11seii violence in the process in that. he kicked her with a fisf. In ·support of his appeal the Appe 11 ant. i'!rg11eii t.hr1t it. was not estahlishe<'I that the alleged chain exist.ea at al.l; that the prosecution should not have· rel j ed on evi <'lence of PWl ;=.md 2, family members as they are sisters; that the prosecution sho11ld have called other people ris wj t.r,esses for the act. was al l.egedly commi.tt.ed i.n the prei-::ence of other people.: t.hat thP. court. relied on hearsay evidf.?nce of PW1. and ?. .: t.hrit the tr. i.a l court misdirected itself i.n ar.r.epting a PF~ in<li.cating the al.legec'J injury of PW'.1. wi.t.hout. r.alling int.he Doctor r.1nc'J that the trial cour.t. sh.i ft.Ao the burc'Jen of proof t.n acr.used (Appel. l.ant.) .• Mr.s. Chambo, learned State Attorney, for the Repuhl.i.c\Responnent., insisted that the offence was fully estahlished hence supported conviction and sentence. l

While T have decidAd to analyse the evidence generally without. being bound hy the manner t.he Appellant has ] aunched his attack I shoul.d state from the start that a substantial. part of his complaints as presented have no legs on which to stand. For example there is no element of hearsay i.n the evidence of PW1 and 2 as I wi.11 soon indicate - if anything he sho11ld have talked of credibility may he. Tt is also naive to insist that once no receipt. in respect of any Art. icle is prod11ced it . .:=rnt.omAt.icAl ly means that it never existed. Neither is it correct in law to say that evidencE! of family members only cannot. support r.onviction (the Jasson Rwebangira case - 1q75 T.RT 26 cited did not. decide anything close to that proposition). The only evidence offered hy the prosecution i.s that. of PWl who is said to have been wearing the chain that was stolen, and PW2 her sister who was said to have been in her company. Both witnesses deposed that PW2 was esrorting her sister, PW1, on physical exercises following an operAtion whir.h had heen carried out on her stomach; thAt on the way they were called 11:pon t.o stop by the Appellant ;:ind A not.her youngmAn ahus·i ng them in the process_. thuR_. "Si.mAmeni nyie rna.l Aya". These witnesRE!S deposec'l further th;:it the y01mgman then run and caught up wit.h them. From here the versions of what happened slightly differ. PWl deposed .. "The 2nd accused ordered me t.hr1t. 't.oa hel en 1 • My young brother(?) run r.1wr1y. 'T'he ar.r.used removed my golrl r.hr.1in on the neck. Hf'! ran ;:iway. 'T'he people r.hr1se<l him hut he w;:is not arrested. We viRit.eo the house where we thought t.hat the accused ent.en~o but. the nr.r.11sed wr1s not. seen. T repnrte<l the inr.i<lent t.n the pnlir.e stat.ion . . . . . . . . . . . . . . . . . T went. tn hnRpi tal her.;,11se T wr1s feeling t.he pnins in the stornar.h. 'T'hen the following day T saw the Ar.c11se<l At t-hP. same house". ?.

.., On the other hand, PW?. stated, "thAy r.r1me q11ir.kly t.o 11s r1ncl sr1id 'trn=rni heleni'. T knew them by fr1ce. 'l'he r1cr.used was one of them. Then the accused held my sister on the neck removed PW1 's r.ha in. T run away and T mane shouts ancl pAop le r.ame to help 11s. Rut the r1r.c11sAd wr:1 s powerful and run r:1.way. My hrothAr t.ri ed t.o hold the accused hut my brother fell down. We followed the acc11sed to the house where we saw the r1ccused entering. 'l'he people whom we found in that house denied that the accused entered there. Then we reported to the policR". In defence the appellant said that on the rnr1terial day as he was playing drafts with his friend (DW?.) r:1. 'l'axi passed by r1nd stopped and started hooting to r1ttract r1ttentinn of two girls who were at n distr1nce; that as thR girls seem not have heard the hooting he (AppRllant) went t.o r.r1l1 t.hRm 11pnn which t.hey insulted him.: t.hr1t. howRvRr when the pRrson dr iv ·i ng t. he t.a xi came out. of the veh i r. J e the girl.s wRnt. t.o hi.m aft.er which they all left. He wRnt on to say that l r1.t.er .- as he wr1s esr.ort. i ng ( DW?.), they met two youngmen who inqui.rec1 about the two girls; t.hat. when he nAgri1·ively n~sponned they assaulted hi.m shout_jng "mwi zi" 11pon whi r.h t.hAy (AppRllant. ana DW?.) all took to their heels as the people Around started throwing st.ones on thAm. He had t.o hide hi.mself in a certain house. Later hR was cal lR<'I to the pol icR str;1t.ion whRre his wife had hRen tr;1ken. He was then charged. HA observed that. the girls framed him 11p as thP.re 1s somRt.hing wrong thRy had committed whir.h they didn't want t.o have it. known to their family. DW2 s11pported this story. Tt is on this evidence that the trial r.ourt r.onvicted the Appel1ant. While it is t.r.i te law that t.hA trial co1Jrt which has the benefit. of seeing and hearing the wi.tness while givjng his eVj.dence is the one hRst pl.ar.e<l to assess his r.redibility; and that appR]late r.011rts should very r;:irp,ly int.erferA with findings of trial court on assessment. of r.redihi]ity of witnessRs [Magige r:1.nd anothRr v R (1g70) HCO 101, Rv Karia Mawji (1g49) RACA 117] it is equally correct to say that in certain types nf 1

evidence the appellate colirt is in do different position from the trial courts' r.1na more so if the trial court fails to make the necessary analysis or appJies wrong principles in the process. Tn sur:h situ;:it.ion t.hA r.1ppAllr.1t.A court woulcl he failing in its <'lllty if it fails so to act under the <'lisguise of refrr.1ining from interferini with Assessment of credihility made hy the trial court. [H;:ilima Mohamed v R, (PC) Cr. Appeal No. 31 of 1997, Dsm (HC) Registry, unreport.edJ. Tn the r.-,se ;:it. h;::incl .. wit.h resper.t.. T am convinced t.h;::it the t.ri;::il court dicl not. properly ;::issRss the A v i n A n r. e l e t. A l o n e r. n:i d i h i l ·i t y . T s ho u l cl go f u r t h e r ;::i n cl s A y t h A t there are also some misdirecti.ons. In arriving nt. thR r.onvict.ion t.hR tr.ir1.l r.ourt. rRUea on three asper.ts. Firstly; it held thnt PW1 and~ wRre credihlR because, ;::i.mong othars. the Appellant. d.id not. cr1ll the 'l'axi driver as a defence witness. The court observed, "All in all the accused dAnied to know the taxi_ driver also he did not bring the taxj dri.ver to support ·this ;:illP.gations AS put by the accused AS his defence''. 'T'his is a misdirection. This is shifting the burden of proof from t.hA prosf'!cution to thP. defenr.e. Secondly, the trinl court n~lif'ld on a PF1 given to PWl whAn she reported to the polir.A t.o Astablish that. she was indeed assaulted. 'l'he court str1t.ed.- "Secondly, comolainant as oer orosecllt. ions evidence an<'I trrnt shA sust.AinRo pnins. Tt. i.s t.hnt. thP. nor.tor examinecl PW1 ana not.Ad thnt. the r.ompl;::iin;~nt._ r.omplninAd nhout t.hA sAverA pains on the opArAt.Ad nTP.A of thP. nhdomRn. This clAarly shows that the complainant sllstainAd the sAvere pains on the opArAt.Ad arer:1 .......... whi] A struaal j no to SAVA herself from the ;:iccusecl" ( Amphns is min A) . T t is rAa 11 y surprising that the trial court mr.1clA those ohservAtions at all. Neither PWl and PW2 testified on r.1ny kind of struggle hRtwt=HHI PWl 4

'"\ . and accused. While PW1 (the victim) is completely silent on any struggle ;:it. ;:ill (-t h;:ive quoted t.hA re.l ev;:int p;:irt of her Avidence ' above) evAn PW?. - aJ so ( who rnAy h;:ive Axagger;:it.ea the situation_. for_. we don't expect. her to hAve exper·i ence<'I the rir.cuse(ls' touch more than the victim herse1f) - simply refers to only the holding of PWl by the neck. On the evidence At h;:ind there is no connection wh;:itsover between the ahoominal pains_. if they ever existed_. and the alleged inci.<lent!. Thirdly_. the t:r.i;:il court, as was the r.;:ise with ground one_. cast the bunlfrn on accused. Tn the last. hut one paragr;:iph of its judgAment.s thP. t.ri;:il court f11rther (1irer.tRc'l it.self_. "Thirdly_. it is thAt. Although_the ;:ir.r.usecl denied to have commjtted the offence said nothing on the mntivP. behind to r.;:ill the compl;:iinant on behalf of the taxi driver whom he did not. know eit.hP.r. Tt. is thus the trial court strongly Agrees with the prosecuti.on that the accused ;:inc'! his friend followec'l the complainant wit.hint.Ant.ion to t:omrnit thR ;:illegP.d nffP.nr.P. .:=inc'! thAt. as per PW1 ano PW?. t.hP. .:=icr.w:;ec'l stole t.hP. go] d r.h.:=i in vAl11ed at ?.00_.000_/= Ano t.hnt imrnP.diat.el.y bP.fore such st.P..:=il ing dio use ar.t.n.:=i] kir.kina hP.r with_fP.ast( vi o 1. P.nce. ___ t.o . __ thP. __ como 1 ,;;i i nnn t hy __ _ )" (P.mphrisis mine). Apart from thP. misc'lirP.ctinn vivic'l in this_. whP.re di.rl the trial court get. P.videnr.e that PW1 wAs evP.r k i ckeo w.i th r1 f P.ast belie~e hP. meant a 'fist')? ( I It jp; obvious thP.refore thr1t. the tri a.l r.011rt. mr1dP. no analysis of the P.vidP.nce_. And inst.P.ac'l got webbed in mis<lirections and non-directions. Wjth respect. to the learnea state Attorney this c;:innot sust.nin t.he cohvir.tion. Now turning to thP. only P.vidP.nr.e proc'l11ced by t.hP. prosecution_. th;:it_ of PW1 ana ?._. T cnn briP.fly observP. th;:it i.t is not free from s11spicion. As T havP. ;:i]ready nbsP.rved thP. story of PW2 slightly iliffP.rs from th;:it. of PW1. PW2 dP.poses as jf t.hei.r

brother was just in vicinity, fnr, she sayR that. he trieo to intercept. accuseo but. fell oown ;rnd that people responded and chased accuseo. PW1 iR silent ahout this alt.hough she Also r.Afers to "brother" h;:ivi.ng nm ;:iway. Accused however t.el ls A story where he is confronted by 2 youngmen who then shout "thief" instigating people to desceno on hjm with st.ones hut. he sriys that this was .long rift.Ar they hriil come in touch with the_girls and a taxi dt iver. Both PWl and 2 are s U.ent ;:ibou1-. how t.he accused came to be at. the po 1 ice s t.ri t. inn. T ;:im surpr ·j sed t. hAt. no at. tempts were made to call the rillegeo hrhther rino investigator as wi.tnesses. Possibly thRre would h;:ive sheo morP. l ·ight on the issue. From ;:ill this it. is c]erir th;:it t.hP. prosecut.inn r.r1se is C'!louded with oollhts henC'!e falling short of being c;:ip;:ihle of s11str1ining ;:i conviC'!tion. For t.he reasons di sc:ussed .- · the convict ion i3 nd ensuing sentence r1re qu;:ishe<l ;:in<l set ;:isiae. The Appell;:int. to be set at liberty unless otherwise lawfully held. (L. R. KaJegeya) ,TtTDGF. ,Tudgement. deli ve:red todAy the 1 5 \ 1 \ qq in the pnsenr.R of Mr. Mdeme, St.Ate Attorney. (L. R. Kr1legeyr1) I!IDG 1.'1\1\9q (