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03 jJ 12 tIi4f • - , IN TIIE HIGH COURT OF TNZNL AT ARU3Hi - I .1' ELL 'Ti JURI DICTION HIGHCouRTcRIMINLAPFirLwo0Jl97l LQ OF THE DISTRICT_COURT OF KILIMANJ.RODITRICT AT MOSHI Bef oreJ.E.C. Mas anc E' squi re, Jsiden a ist rate 0 BELINGTON s/o KIRUMI 0 0 0 0 ppellant Original Iccused) 7 J: o Cl~ 7-1 versus /-/ 3 Ti-U R.CPUBLIC 0 0 o Respondent (Original Prosecutor) Chare: Burglary c/s 294(1) Cap.16 Vol.1 of thePenal Code0 J U D G fL E N T KWIKIM.4 AGCJO The appellant was convicted of attempting to break into a building with intent to commit a feony. C. He was sentenced to two years and twenty four strrkes. H is now &apealing against •conviction and sentence0 The epellant's conviction was unfortunate in that there ;as no evidence in support thief. The only witne3s to identify the appellant was FW 2 Catherine whose evidence was accepted beceusè () She is quite farmiliar to the accused0 in fact they are relatives. (2) iihe had a torch with her and she was able to idéntif the accused with the help of the light0 With respect, these reasons cannot discharge the heavy burden which the prosecution had at the trial0 The apell- ant's conviction was based on his identification only0. As such) evidence of identification had to be watertight before conviction could be 'had. It is my considered view, with treat respect to the learned State ttorney who appeared in this appeai, that there as no watertight evidence of the appellant's identity0 Catherine simply shouted the apeliant's name. She did not describe him in court or to Alois i!Iongi the first 'heighhour to answer her alarm. A description of the appellant's clothes at the time would have removed any doubt especially if it was rereated by .Alojs to whom Catherine should have first described how she recognised the apellant. There is a real danger of Cath- erine being honestly mistaken about the identity of the man who tried to break into her house. For this reason along it would he unsafe to convict the a.ppellant-S 0000000