marwa so maranya another vs republic 2008 tzhc 100 28 may 2008

IN THE HIGH COURT OF TANZANIA AT MWANZA HC CRIMINAL APPEAL NO 29 OF 2007 C/F CR. APPEAL 30/2007 (Original criminal case no. 388/2003 o f the District Court O f Musoma Before: G VDudu - RM) MARWA S/O MARANYA & DEUS RYOBA................. APPELANTs Versus THE REPUBLIC.................. RESPONDENT 26/3/07 & 28/5/2008 JUDGMENT RWEYEMAMU, J: This judgm ent consolidates Cr. Appeal 29 and 30 of 2007 by Marwa Maranya and Deus Ryoba respectively. The two were charged, tried and convicted o f armed robbery in Musoma District Court (DC) Cr. Case 338/2003. They were sentenced to 30 yrs imprisonment. Dissatisfied they appealed to this court. In their Memorandum o f Appeal (MA), the two basically challenged the evidence o f identification submitting that the court l erred in relying on witness’s testimony of identification which was not credible. That the witnesses failed to disclose the identity of the accused immediately to the people who came in response to the alarm or to the police. Further that key witnesses were from the same family and for that reason not credible. Mr Mkemwa state attorney who represented the republic on appeal declined to support conviction and gave a number of reasons in support o f his position: First that one witness Pw3,testified, although he was not listed as a witness at the PH stage and the prosecution had not made the necessary application as per section 239 (1) o f CPA. Two, that the testimony of that witness was inadequate because she testified to have made voice identification o f the accused/appellants. Three, that no police investigator or any o f the persons who answered the alarm raised by the victims testified. Last, that, although the judgment indicates that there were three witnesses, only two are indicated in the proceedings. I should begin by considering the anomaly pointed out by Mr. Mkemwa regarding the number of witnesses who testified. On checking the original record, I noted that Pw1 Mugosi Manyangi testified on 12/3/2004, Pw2 Mwikabe d/o Manyanka on 6/5/2004, and Pw3 Robi d/o Mugosi on 16/9/2004, all before Kamalamo DM. On 23/3/2005, the accused successfully prayed that the trial magistrate who had been transferred should not proceed with the defense for fear that their case would be delayed. There was therefore three witnesses at trial. The defense proceeded before a different magistrate G V Dudu RM, who also signed the certified proceedings. Obviously the typed proceedings were not a true copy of the original and I believe the importance of verifying proceedings against the original is well understood and need not be emphasized. Because o f the anomaly, the appeal could not be effectively prosecuted or defended because parties had only the typed proceedings to work with. Such a situation is unfortunate for the cause of justice and should in future be avoided. I have also checked the submission that a witness not listed at the PH testified without notice as per requirements of section 293 o f the CPA, he probably meant 192 the section dealing with “accelerated trial and disposal o f cases It is true Pw3 Robi d/o Mugosi was not listed as a prosecution witness. The testimony o f that witness was considered by the trial court in arriving at the guilty finding as such, the element of surprise can not be considered not to have been prejudicial to the accused/appellants. After going through the evidence on record and considering the submission o f both parties, I find the appeals merited. Apart from the shortcomings pointed out above, there is also an important aspect pointed out by both parties:- failure by the witness to reveal identity of the appellants at the earliest opportunity, casts doubt on the reliability o f their evidence of identification. As observed by the CA in Swale Kahonga in Cr. App 46/2002 MZA registry (unreported) citing Marwa Wangiti Mwita , Boniface Matiku Mgendi v. R, Cr App. No.6 /1995, MZA Registry (unreported) “The ability o f witness to name a suspect at the earliest opportunity is an all - important assurance o f his reliability, in the same way as un-explained delay or complete failure to do so should put a prudent court to inquiry ” That is more so when that fact is coupled with absence o f the investigator’s testimony, evidence which is “vital in providing a link between commission o f the offence and the accused ”. I for that reason agree with the appellants that the evidence of identification against them was not watertight. In view o f all the above reasons, I find the appeal merited although for slightly different reasons from those stated; quash both appellants’ conviction and order that they be set free forthwith unless otherwise lawfully held. It is so ordered. / R M R w eyem am u^^^^^^ Judge 28/5/2008 Order: Case file and Judgment forwarded to the District Registrar Mwanza HC, for delivery of the judgment to the parties and execution o f subsequent orders. R M Rweyemamu Judge Mtwara HC 29/5/2008