Invocavit Boniface Mbowe vs Republic (HC Criminal Appeal No. 168 of 1990) [1990] TZHC 353 (31 December 1990)

MUNUO, J. I \· APPELLATF: JURISDTC'l:'ICN HIGH COUR'JfCRTMHTAL ·A:PPE.AL 19"0_. 168 ·OF· 199t1 . ORIGINAi> ft.t'nIIN'AL c,:ASE No_. · 3 oF' 1990 OF THE ·D.ISTiH'CT GOURtp .iCF HAI DISTT1ICT. 'AT HAI BEFCRE: S ~ MUSA I Esq; DI$TRICT fJIM}IST'1. /'1:'E INVOCAVITI_ B. MBOWE ......... APPELLANT . , . ·., -Versus. THE REPUBLIC. . . . . . . . . RESPCNDENT . . : JUDGMENT: ,·. This is an appeal from Hai Distrfd C0-u-rt C_riminal Case No~ ·,8 • t t of 1990 in which tp.e acct1sed Invocavit BonifaceMbowe wa·s charg'ed· . :•::·, 1 ·-·: . . ·. with robbery ·with violenc c/s 286 and 285 of the pe:na1 ccide. · It is_.- alleged ·that on the .5/12/1989 at ·abollt 1.00 a~ m. at Kimashuku Village within Hai District in Kilimanjaro Reeion, the accused seized shs •... 180,000/=, 3 ollter nat_ional battny valued at shs. 4, 500/=, one pair of Kitenge valued at shs. 3,000/=, follr pai-'rs· of Khanga valu.ed·at. shs. 7, 200/=, one weighing machinf• valued at shs. 50,000/=, total ·· valued at shs. 267, 900/= the proporty of Sf'lc>man Jllma and at the timP of stealing the. aQQUSPd used a fire arm to the sAid Seleman= Juma in oder .. t·o retain the said prcipert,y. The comp_lainant Seleman Juma deposed as PW 1. · He stat Pd ·that, at midnight on .the ma·tP.ri,al night he was a sleep in his hous- which is annexed to his shop. Sudd0nly two bandits broke the door bv llsing ·: .:. ". '.· ' 3 1·arge stories_ thereby stor:flling into the comnl<Jin,rnt 's room ind therein. 1 : .• assaulting him. The complainant sti-ff''ered a cut ,,10und 0n the le-f't . .leg,and; h1=1€'motc-ma on the back -,ndbruises en the chee.ks "er his PF 3 from,-Exhibit P2. The bandits then ransacked th~ house and stole the proprrty·. listed. in th~ charg€'. They took PW2 Rehema Seleman captive and ordered her to carry a large box ccmtiilning the nronerty the bandits looted. Rehema carried the said box ight across the ~ ,.. . ··i •• Moihi ~ Arusha tarmac road, a kilometre away. PW 3 identified the accused 3'.:nvoc·a,vit ·Boniface Mb owe, he was subsequently arrested and cflarged with thEi rres€'nt offence • . . . . . . . . . . . . . . . . /2 I ,••'•{ ' -i>"·:)..·": -~ t..i· :-. ' - / '. i · ..... · · ,, ''.-•·M r;iir.N.~~.os.~. ~, ~- ·

In his sworn defence the accused denied the robbery •. a de¥ence of alibi claiming that he was· a,sleep at his home during the robbery so he was not a nart~ party to the robbe-ry.. 'T'he accused.. , called his wife DW 1 Grace Kweka to corroborate his deence o alibi. In his memorandum of appeal the appellAnt stated that PW 2· did not satisfactorily expla-in t,o the court how ·she identified him. He said that PWl, PW2 and PW3 are family members who gave false evidence in order to victimize him. The apDellant stated that the trial court ought to have found his defenc~ 1 of alibi probable.- Mr. Kimomogoro; learned State Attorney brged the· court· to uphold the conviction and sentence· on the gr·o-und t,.h-at· the_ appel_lant i-J,as properly identified by PW 2 Rehema SE'·leri'arii who. was ordFred to carry th€. robbed property fo/:~ d.1.stjnce of 1 Kilometre rig;ht .t,o the Moshi - Arusha tarmac road in the company of the appellant wh6 was armed with a gun. HE=- obs··rv-ed that the s::iid PW 2 furthE-r identified the appellant by the bright lights of a pssing vehicle at the tarmac road in question so th!" identification was ,ater tight considering that there w~~ moorilight on the material night. The State Attoiney noted that PW 1 and PW 3 corroborate± h,identification of th appellant Hy PW 2. The issue is whethei the identification o~ the apnellant was 1,Jater tight. PW2 Rehema Selem3ni identified the a~~Pllant ho orerei he~ to carry the stolen prorwrty to the Arush<i - Moshi ar,cnc .. f99?-: There was moonlight io dtring the 1 Kilometre walk to. the tatma6 road, PW2 properly identified her paptor, the apJellant. She · further identified th€' appe1iant by the brif,h:t; of a passing vehicle at the said trmac road. In the circumstances, even without the corroborative identifiction of PW 1 and ?W 3 it would have been safe and proper for the trial court to .convict the accused on the single identification,of PW 2 Rehema Selemani,-he.captive. ·!'. In a wor h idPntificationJof the appellant was aater-tight. ' llA{f}JMl was used in the robbery so the sentence of thirty years·, imprisonment, is lawful. There is no merit ih the appeal In the result the appeal is dismissed~ I

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3 It is so CrdFrPd. E. N., . MUNUO, JUDGE. 31/12/1990 At Arusha this 31/12/1990. Appellant: Absent Republic: Mr. Kimoiogorc, State Attorney •.. mn~/vm I :;.,,il,.~,.111 ..... , ... ,.