20171117 TZHC Mwanza2

IN THE HIGH COURT Of TANZANIA J (MWANZA R~GISTRY) ATMWANZA APPELLATE JURISDICTION HC.CRIMINAL APPEAL NO.34 OF 2017 {Original Criminal Case No. 349 of 201,5✓ of the_ District Court of Tarime at Tarime 1. MARSEUS LANYA OTU~A 2. CHRISTOPHER ONDEGO 3. JOHN ONDEGd'". . ................ u •.•••••••• APPELLANTS 4. IDDJUMA 5. OKECH· ONDEGO VERSUS THE REPUBLIC .. ~ .................... ~···········:'...·····~·········· .... RESPONDENT ___::__-::- ..::;:::__..::::=..:. . ::-- ~~-~- - Last Order: 28/08/2017 Judgment: 17/11/2017 JUDGMENT MAKARA.MBA, J.: This is an appeal against the decision of the District Court of Tarime in Criminal Case No. 349 of 2016 dated 21/12/2016 before Hon. M.B. Mpaze Esq RM. Briefly, in 2015 the Appellants were arraigned before the District Court of Tarime five counts. The first count was Arson c/s 319 (a) of the Penal Code [Cap.16 R.E-2002] for which they were jointly and severally sentenced to serve four ( 4) years in jail. In respect of the second to filth . . counts, . the Appellants· were charged with the offence of Causing Page 1 of 25 ... --------------· - Grievous Harm c/s 225 of the Penal Code [Cap.16 R.E. 2002] of J which they were all acquitted. However, ·the s' Appellant who was the 7 th th Accused before the trial Court,- was alternatively charged and convicted with the offence of Common_ Assault c/s 240 of the Penal Code, Cap.16 R.E. 2002 and sentenced to pay a fined of Tshs.500,000/= and -in default to serve twelve (12) months imprisonment. The 7th Accused was also required to pay compensation of Tshs.400,000/ = for the injuries he had caused to the Victim. The Appellants are dissatisfied with the· decision District Court of Tarime and have appealed it before this Court on the following grounds, namely; ·J. That the trial Magistrate misdirected herself on point of law and facts to find that the Appellants were properly identified engaging in the alleged matter in issue~ - - ------- 2. That the trial Magistrate erred on point of law to rely on .evidence of PWl,, PW2,, PW3 and PW4 who were not credible witnesses. 3. That the trial Magistrate erred in law and fact to neglect the defence· of the Appellants who were not present at the alleged scenario · during the material date and time. 4. That the trial Magistrate misdirected herself in her finding in respect of ,fh count to conclude that /h accused {Sh Appellant) did cause assault to the said victim while he was not present at the alleged scene of crime thus· the sentence imposed against him was not proper. · ·=-f;t/ Page-2 of24 5. That;. this case was formulated and planted to the innocent Appellants without good cause. 6. That;. the evidence which adduced by the prosecution witnesses was cooked one. Thus the said eye witness in this matter is liar. 7. That, the trial Magistrate misdirected herself on point of law and fact when she failed to make a critical analysis and scrutiny of evidence and thus reached .at finding_ which was improper and lacked support . from the records.. 8. That, the conviction was predicated weak dock identification evidence. 9. That, the trial Magistrate failed to discover that the piece of evidence of the said eye witnesses in this case has serious contradictions and their evidence created grave doubt related to the manner in which the alleged Arson a_nd assault conducte~ hence their demeanor and testimony lacked credibility hence the trial Magistrate erred in facts to consider- the prosecution evidence while there was such contradictions. 10. That;. the prosecution side failed to prove its case beyond the required standard in law. In prosecuting this appeal, Mr. Elias R. Ezn~n, learned Advocate represented the Appellants. M/s Gisela, learned State Attorney reprt=sented the Respondent. Mr. Elias Ezron · submitted that, 95 per PW1, PW2, PW4 and PW7, the house of PW7 was set on_ fire by a group of people. However, Page 3 of 24 only seven (7) people were identified, two (2) of whom were acquitted and the five (5) are the ones before this Court. Mr. Ezron submitted further that, PW1 stated that having seen the ·incident he went to report it to the Ten Cell Leader and then to the Subu~b Chairman and that upon arriving there he mentioned some of the people he claims to have remembered. These are John Ondego (3 rd Appellant) lanya Otuma (1 st Appellant) although with a different .name, Okech On~ego (5 th Appellant); Idd . . Juma (4 th Appellant). PW1 said that, he also identified the 3rd accused (2nd Appellant) but he did not know his name. · Mr. Ezron submitted further that, the statement of the Suburb Leader, PW3, as at page 25 of. the proceedings of the trial Court show . that, the offenders are John Damila, Okech Damian, Peter Orego, Odhiambo and Odogo Otumbo; but none of them was arraigned before =- ~---the-trial-Court~as the accused·to· standlrial:~PW3~stated furtn~-r -th~t~PW:1 ~ forgot to mention the others· and according to him he was too tired but he will go back to mention them. However, ~W1 never came back to PW3 to continue with naming the list of the offenders. As per PW3, the Suburb Leader, PW1 went to his place at 4:00 p.m., and that PW3 took PWl to WEO, Village Executive Officer, Officer, as at page 25 of the typed proceedings. As per the evidence of PW6, the Village Executive Officer stated that PW1 went to his office at 3:00 p.m., as at page 34 of typed proceedings. PW6 does not say that PW1 was accompanied by PW3, who claimed to have taken PW1 to PW6's office. According to Mr. Ezron, it could not have been possible for PW1 to report: to_PW3 at 4:00 p.m;, but PW3 to take PW1 to PW6 at 3:00 p~m. And ~s per PW6, that is when Page 4 _of 24 t John Ondego (3 rd Appellant) got to be mentioned, also Christopher J Ondego (2nd Appellant), Idd Juma ('4 th Appellant); Okech Ondego (5 th Appellant) and Marseus lanya (1 st Appellant). Mr. Ezr6n submitted further that, there are two ser.ious doubts created by the prosecution witnesses. One, those mentioned now before PW6 were never mentioned before PW3. Secondly, as per PW3 evidence, PW1 was too tired to the extent that he could not mention any other · accused, but upon arriving -before PW6,· PW1 mentioned the five people who are now before this Court -as accused/appellants. Mr. Ezron submitted further that, the other doubt is with regard to the fact that while PW1 testifying_ before the trial Court,. he stated that he identified the 3rd accused, now the 2nd Appellant, but did not know his name. However, as- per PW6, PW1 mentioned Christopher Ondego, the nd =======-~r~- .accused-now- the-=-2 -Appellant~l\1 r. Ezron wondered h~;-it~~~~idha~e- - been possible for PW1 to mention the name of the· 3rd accused previously before PW6 fail to know his name at the time he was testifying _at the trial Court. Mr. Ezron submitted further that, PW7 who is the victim, when testifying at the trial Court mentioned the accused persons and identified them on the dock. However, there is no record anywhere if he· mentioned the names before any authority to which he went to at first instance, although there is no evidence if he ever went to report the incident to any authority. Mr. Ezron submitted further that, PW2 stated as at page 23 of the typed trial Court proceedings that, he did not go to any other .place . . other· w~-- Page 5 of 24 .,. than Senta and later he was taken to hospital, which means he was not even interrogated by the investigator. PW7 (the victim) as at page 36 of the typed trial Court proceedings, stated that, he did not report anywhere, not ~o the police, not even to the Village Authorities. Even· the investigator of the offence who took statements of the victim, was not called to testify at the trial, Mr. Ezron further submitted and added that it is not even known ho"'{ the Appellants were· arrested; by who _and how they were arraigned in Court According to Mr. Ezron, he is, for the foregoing reasons, of the view that, the accused persons were not properly identified. In buttressing his. submissions on th.is point Mr. Ezron referred this Court to the decision of the Court of Appeal of Tanzania in the case of Wambura Mniko Bunyige Vs■- Rep, Criminal Appeal No. 256/2010 (unreported) where the Court; - sitting-at statea that; "clock ldentification i;, it;elf is-. inadequate to support conviction." Further, Mr. Ezron also referred this Court to another decision of th~ Court of Appeal of Tanzania in the cas~ of William Kitonge @ Mwita & 2 Others Vsa Rep, Criminal Appeal No. 185/2010 (unreported) where the Court also sitting at was of the opinion that/ "failure to call an important witnes~ is taken as benefit to accused" According to Mr. Ezron, the arresting officer was a crucial witness to show how and when the accused were arrested given the nature of the identification. In reply, Ms. Gisela submitted that, the Republic does not support the ?ppeal. M/s Gisela submitted further that, ~he trial Court in arriving at the . · deci?ion, considered the evidence of PW1, the.eye witness, and PW3. M/s . •:!--: . !Ji\ ./j ------ gir,.__~:.,; Page 6 of 24 Gisela submitted further that it was the evidence of PWl that, on the fateful day, at 14:00 hrs, a group of more than (10) people came to his house and he managed to identify, John Ondengo {3 rd Appellant); James Fabian (4th Accused); Lanya Otuma (2nd . Accused/1 st Appellant (Marseus Lanya Otuma; Otri Omugo; Okech Ondego (5 th Appellant); Idd Juma ( 4 th Appellant); he also identified 3 rd accused who he did not know his name; but he said that he is the younger brother · of John Ondego, who was the 5 th accused in the criminal case, the 3 rd . Appellant herein. PW1 mentioned the suspects to PW6 (Village Executive Officer) after the incident where he went at 3:00 p.m. And as per the testimony of PW6, PWl mentioned Christopher Ondengo including other accused, Idd Juma, Okech Ondego and Marseus Lanya. On the day of the event, Johanes Ondego, Consolidate Area,_ :::::::==::-:::=-=- Ogaja· Area, Martias and Bobu Area were present at the incident area, M/s Gisela further . submitted. PW7 also mentioned, the .3 rd _ and 4th Appellant, John Ondego and Idd Juma. PW2, Odaya Oreo, stated that rd he saw the 5th accused who is the 3 Appellant; with a "panga", James . Otieno (who was acquitted) brandishing an axe; and also Lanya Otio, as well as Christopher Ondego, 2nd Appellant; and another Okoma Otoi; and John (5 th accused). PW2 stated further that, at the .time of the incident, the 1st accused, James Otoi (who ·was acquitted); hit PW2 with a stone on her face and ran away, and upon giving chase he ran to ·the hills to hide himself, which is why he did not report the incident to the . Police or Village Government. On the evidence of PW1 and PW6, the trial Court was satisfied and accordingly convicted the accused/appellants. . . riLU..,,.___,- 1~ If P·age.7 of 24 M/s Gisela submitted further that, as per PW1, the 3rd accused Okech Ondego had a ten litre jerry can and poured lts contents on the roof; and Lanya lighted the house. M/s Gisela submitted further that, PW1 did not identify the 3rd accused because he did not know his name, but he was the younger brother to the 5th accused. The 3rd ·accused as per PW6 evidence, is the Appellant by name of Christopher Ondego, the 2nd accused is the younger .brother of 3rd Appellant, John Ondego. In that regard PW1 managed to-identify the accused and reported him to- PW6 at the earliest opportune moment and in support of this trite legal point, M/s Gisela referred this Court to the decision in the case of James Kibabo Vs. Rep. Criminal Appeal No.. 261 of 2006. On failure to bring important witriess~s, .M/s _Gisela-submitted that, the - - -- - -· -- ·. ---- - - - - ·. prosecution did not see the reason to bring the arresting officer since the issue was whether the accused committed the offence, and the trial Court was satisfied that the offence of arson had been ·proved. M/s Gisela referred this. Court to the provision of Section 143 of Tanzania Evidence Act which is to the effect that, there is no specific number of witnesses required to prove a case, since even one witness could be . sufficient, for what count is the weight of the evidence and not the number of witnesses. In rejoinder, Mr. Ezron submitted further that, PW7 alleged to have identified two persons but at page 37 of the typed trial Cou_rt proceedings while being cross-examined by the 2nd accused, PW? said he had identified three (3) persons. The prosecution did n?t prove/establish its case against . !J,~ - ~ Page 8 of 24 rVJ . the accused to the required standard and made a prayer that, the accused be set at liberty, Mr. Ezron surmised. On the respective submissions by the learned Counsels in support and in rival, and on the evidence on record, this Court finds that, the Appellants were not properly identified at the crime scene. The circumstances leading to the identification of the Appellants as offenders· were not conducive. PW1 testified before the· trial Court that, on arrival of a. group of more tha·n ten (10) people who invaded and completely burnt the house of his mother one Consolata, he ran to his brother's house, one Odira, which was located at about 10 meters from Consolata's house. PW1 stated further that, while at his brother's house looking through the window he managed to identify all the Appellants from among the group of more than "ten (10) people who had invaded the victim's houses. PW1 .stated that-he· - -- =::::::::::::-:-__-speclfically witness~d ·la-ny4?1 (2 nd Acc~s~d), Idd (6 th Accused), Okech Ondego (7 th Accused) and Otoyi (1 st Accused) setting Consolata's house on fire. According to PW1, Okech Ondego was the one who poured petrol on the house. PW1 stated further that, he witnessed Johannes Ondego being beaten up by Idd Juma (6th Accused) and a stone being thrown onto the face of Mateus Oneya by James Otieno ( 4 th Accused). Upon careful examination of the evidence by PW1, it seems to me that, out of seven accused persons, PWl managed to identify the 1st, 2nd, 4th 6th and 7th accused persons as being the ones who actively participated in the commission of the· crime. As per PW1 evidence, the 1st, 2nd, 6th and 7th accused persons.were identified committing the offence of arson as set out Page 9 of 24 the first count, and the 4th and 6th accused person were involved in committing the offence of causing grievous ·harm as set out under the second and third counts in the Charge Sheet. As per PW1, the 3rd and the 5th Accused persons were not identified and that! the offenc~s set out . . under the fourth and fifth counts were not proved against them. · However, having looked at the circumstances leading to identification of the perpetrators of the charged. offences by Pw1; this Court finds that . there are some factors which w_ere not conducive for proper identification of the accused persons at the crime scene. According to PWl, he saw· a group of more than ten people coming towards his mother's house armed with local weapons. That PWl ran -away and hid himself· in his brother's house which is located at 10 meters away from the scene of crime, PWl's mother's house. That while inside his brother's house PW1 managed to , - identify the invaders through a window. On the evidence by PW1, there is no proof that, PWl was hiding in his brother's house having run away from his mother's house, the crime scene of crime, upon seeing a· group of more than ten people approaching his mother's house while armed with ·some traditional weapons. I am of the view that, a distance C?f ten meters from the scene of crime to the place where PW1 claim to have hid himself, his brother's house, could not have afforded PWl with _the opportunity to properly identify the .persons he claims to have mentioned as being the offenders from among· the crowd of more than ten people. Considering the fear which had gripped PW1 to the · extent of him running away from his mother's house to hide ·himself ln his brot_her's house, cleady PWl was in a state. of fear and he could not _,...,- _ Page 10·of24 · ~ therefore have been in a mental state which could have enabled him to concentrate on identifying the persons he cla.ims tohave identified at the crime scene on the fateful day. Rather unfortunately, while reporting the incidence to PW3, the suburb Chairman one Festo Nyachuma, PW1 mentioned a different set of offenders including John Damian, Okech Damian, Peter Orego, Othiambo,. Od~ngo Otumbo and Otuna as being the persons h~ claims to have identified at the scene of crime committing the-charged offences. Neither of those suspects PWl claim to have mentioned to PW3 were ever charged in the case forming the subject of the instant appeal. It is with· - doubts why PWl -failed to mention the· accused persons to the Suburb Chairman, Festo Nyachuma, being the earliest possible opportunity PW1 - - -- ...... had of doing so. Worse still, _as_ p~r _th~ evidence _of-.PW6,_ the Village:. -~--- .- Executiv; Offic~r--of- Orio Village one Matiko Wambura Iramba, PW1 reported the incidence to him and mentioned to him a different set of offenders, including John Ondego (the 5th Accused), John Christopher (the 3rd Accused), Ondego, Idd Juma (6th Accused), Okech Ondego (7 th Accused) and Marcus tanya. As per the testimony of PW3, the Suburb Chairman, festo Nyachuma, it seems that, PW1 first reported the incidence to the Suburb Chairman (PW3) and then to the Ward Executive Officer (WEO) and thereafter he went to the Village Executive Officer (VEO) of Orio Village, Matiko Wambura Ir~mba, (PW6). But as per the evidence of PW3, PW1 failed to mention the accused persons before the s_uburb Chairman and the Ward Executive Officer .. AndPW1 mentioned the 3rd , 5th , ~ th and 7th accused persons at a later stage before the Vill_age Page 11 of 24 1 ' 'i ! l 'l ~ i Executive Officer. In the circumstances, this Court finds that, PW1 failed to ) mention the accused persons at the earliest possible opportunity; that is before PW3, but rather he mentioned to PW3 a different set of persons, . who were neither arrested nor arraigned before the trial Court as accus_ed persons to face the charges the subject of the trial leading up to the instant appeal. It is worth noting that there is a plethora of case authorities on the settled trite principle of law that: '~ .. Delay in naming a suspect without a reasonable explanation by a witness or witnesses has never been taken lightly by the courts. Such witnesses have always had their· credibility doubted to the extent of having their evidence discounted // · See the decisions of the Court of Appeal of Tanzania in Misoji Ndebile @ Soji v. R,,, Criminal Appeal No. 75 of 20.1.3, {~AT} {} {unreported}; Kamuri Mashamba v. R., Criminal Appeal No. 325 of 2013, {CAT}{} {unreported}; and Jackson s/o Thomas v. R., Criminal Appeal No. 229 of 20.1.3, the Court oFAppeal of . Tanzania at Tabora, to mention just a few. In the premise and for the foregoing reasons, this Court finds that, the accused persons were not properly identified by PW1 at the scene of crime. As per the evidence by PW2, Ogaja Onea, on 22/12/2009 at about ·. 14:00 Ho~rs he was inside his mother's house which according to· PW2 was completely burnt down. That while .inside the house eating, PV'v'2 sa·w _..,..,,., t"r-ll·,r- Page 12 of 24 f~~,J · John, Okoma, Otoyi, Christopher, Idd Juma and other people coming to their house, that they were more 'than ten people. That John had a panga, James Otieno had a "mkukr (spear) and an axe, lanya Otio had an axe and others had clubs. However, _at page 23 ·of the typed trial Court proceedings, PW2 stated that, "he did not know who set the house on fire as he was inside the house." Since PW2 confirmed before the trial Court that he was inside the house, which was completely burnt down, this Court finds that PW2 could not therefore have been in position to identify. those who had set the house on fire and therefore PW2 cannot be said to have identified the offenders. In the circumstances, this Court finds that, the accused persons were n9t properly identified by PW2. On the evidence of PW7, Consolata Onea, the crime victim, she stated that, on 22/12/2009 at about 14:00 Hours, she was inside her - --- - - - - - --- - - - . ___ -_~ -house--eating ·with-other persons-including -Ogaja- {PW1) and Nyambuge (PW2). That PW7 · looked through the door and saw the 5th and 6th accused persons coming, but -"she didn't know who burnt down the house." PW7 stated further that, after her house having been burnt down, while inside it, she felt too hot and therefore she decided to get outside but since she too tired due to heat she fell down and lost consciousness and after that, "she did not know what was going on." According to PW7 -she confirmed in her evidence before the trial that she was inside the burnt house with PWl and PW2 eating, and therefore she could not be in a position to see what was going on outside the house. · PW7 also confirmed through her evidence that, she does not know who . . . . burnt down her house. As per the evidence by PW2 and PW7, it seems to _t~r~~. ' Page 13 of 24 me that, PW1, PW2 and PW7 were all inside the burnt house. This being the case therefore they could not have been in a position to see and know what was taking place outside the house. In the entire evidence before the - trial Court, PW1, PW2 and PW3 were the only witnesses_ among the_ prosecution witnesses who were at the scene of crime during the alleged commission of the charged offenses. This Court however, has already determined that, on_ the evidence before the trial Court, the -prosecution witnesses, ·namely, PWl, PW2 and PW3, did not properly identify the Appellants at the crime scene In reaching her decision, the learned trial Magistrate found that the 1st and 4th accused persons were not properly identified by the prosecution witnesses and therefore she did not find them guilty of the offence of Arson c/s 319 (a) of the Penal Code Cap. 16 as set in the first count and they were accordingly acquitted. This 'Court however, having re-evaluated the evidence before the trial Court on record, finds that, all seven (7) accused persons were not properly identified in respect of the offence of Arson c/s 319 (a) of the Penal Code Cap. 16. They ought to have been acquitted by the trial Court. In respect of the 2nd , 3rd and 5th counts against all the accused persons for the offence of Grievous Harm. c/s 225 of the Penal Code Cap. 16 R.E. _2002, as the trial Court found, these Counts were not proved against all the accused persons to the -required standard and therefore they were acquitted. This Court has also confirmed that, the case against all the accused persons in respect of the offence of grievous harm as set out in the 2nd , 3rd an·d 5th Counts w~re also not proved beyond· reasonable doubt _ -~------ ;t·--;r-- r/¥_} Page·14 9f 24 This being the case therefore there is no reason for this Court to make any finding on whether the accused persons .were ·properly identified in respect of the offences as _set in those Counts. However, the trial Court found the 1st and 7th Accused persons to have been involved in causing injuries to Ogaja Onea (PW2). Unfortunately, the trial Court acquitted all the accused persons, including the 1 st and 7 th accused persons, in respect of. the offence of Grievous Harm as set out under the fourth count, but found the 1st and 7th accused person guilty of the offence of Common Assault c/s 240 of the Penal Code, Cap.16 R.E. 2002. With due respect; the 1st and ih accused persons were convicted on an offence they were never charged with. The fourth count having not been proved at all, the trial· Court could not therefore have proceeded to convict the 1st and 7th accused persons with the offence set out in the fourth count. If the trial Court had found the evidence on ·. record to be sufficient to convict the 1st and 7th accused persons with the alternative offence of Common Assault c/s 240 of the Penal Code, Cap. 16 R.E. 2002, it could have firstly, acquitted all the accused persons, including the 1st and 7th accused persons, in respect of the offence of Grievous Harm as set in the fourth account, and then alternatively could have charged and convicted the 1st and 7th accused persons with a new offence of Common Assault. This is due to the fact that, the learned trial Magistrate has powers to arrest and put into custody and charge any- person who has committed any offence ·within the local limits of his/her jurisdiction. It was therefore wrong for the learned trial Magistrate to convict and sentence the 1st and ih accused persons under · the fourth count with the offence of Common Assault which was not the . Rr-,r·--- {f:Y{:/J . Page 15 of 24 which had been set out under that count. Worse still, the learned trial Magistrate never indicated or explained to the 1st and ih accused persons if t~ey were being alternatively charged and convicted with a new offence of Common Assault. On the evidence on record, this Court finds that, the 1st and 7th accused persons were not properly identified by the prosecution. witnesses and were not found guilty of committing the offence of grievous harm as set. under the fourth count or of committing the offence of Common Assault for which they were wrongly alternatively charged and convicted by the trial Court. In convicting the 1st and 7th accused persons with the offence set under the fourth count, the trial Court relied on the evidence by PW1 and PW2. As per the particulars of the offence of Grievous Harm as set out under the fourth count, it was alleged that, lames s/ o Otoyi, Marseus s/o Lanya Otuoma, Christopher s/o Ondego, James s/o Fabian Otieno, John s/o Ondego, Idd s/o Juma. and Okech Ondego were being jointly and together charged that, on the 22 nd day of oe·cember, 2009 at about 14:00 Hours at Olio Village within Rorya District in Mara Region did cause grievous harm to one Ogoja s/ o Onea in different parts of his body. On the evidence by PW1 and PW'J on who caused bodily injuries to Ogaja s/ o Onea, both PW1 and PW2 testified before the trial Court that, Ogaja Onea was beaten up by the 1 st Accused, James s/o Otoyi. It has never been established if the 7 th Accused, · Okech s/ o Ondego. caused any injury to Ogaja s/ o Onea. In any event, as I have pointed out f!!Zl- Page 16 of 24 earlier in this Judgment, the 7th Accused person was wrongly convicted in respect of the fourth count. Apart from being mentioned by PW1 and PW2 that, it was the. 1st accused who caused . Injuries. to Ogaja s/ o Onea, the pertinent issue. is . whether the 1st accused was properly identified by PW1 and PW2 causing injuries to Ogaja Onea. As per the evidence of PW1 and PW2, Ogaja Onea was beaten up by a stone being thrown onto his face, which stone it is alleged to have been thrown by the i st Accused. The evidence by PW7 at page 37 of the typed trial Court proceedings shows that, Ogaja Onea was knocked with a stone while inside the house, which stone had been thrown from outside th~ house and penetrated through the broke!1 window and hit Ogaja Onea on his fore face near the eye. Since as per the evidence of PW7, that both PW1 and PW2 were inside the house, -they ~· ·- -- --- could pessibly have- been managed to identify the person who was outside - the house throwing a stone at Ogaja Onea who was inside the house. As I have intimated to earlier in this Judgment, PW1, PW2 and PW7 all having confirmed through their evidence to have been inside the house, it could not have been possible for them to know what had transpired outside the house. The stone alleged to have caused injuries to Ogaja Onea having been thrown from outside the house, this Court finds it to be impossible· for -the PWl and PW2 to have been ableto identify the first accused as being the person responsible for throwing the alleged stone which hit Ogaja Onea in his face, particularly taking into account that, it was not established at which position PW! and PW2 was positioned inside the house. This Court having found that,_ the identification · at the scene of /lfr:;if __ . ., q •0 P<;1ge 17 of24 crime was not water tight, the only remaining evidence is that of dock identification. As Mr. Hezron rightly submitted; dock identification in itself is inadequate to support conviction. It is for the above reasons this Court. finds that, the . 1st and 8th grounds of appeal have merits. They are accordingly hereby allowed. On the 2nd , 5th , 6th , 7th and 10th grounds of appeal, Mr. Ezron submitted that, either PW3 or PW4 was not telling the truth. It was the evidence of PW3 as per page · 25 of the typed trial Court proceedings that, on 23/12/2009, him (PW3) and the Police went to the scene of crime and the police drew a sketch map; which means that PW3 was present at the crime scene when the sketch map was being_ prepared because_ ·;t is him who went there with the police. Mr. Ezron submitted further that, PW4 stated as per page 27 of the typed trial Court proceedings, that he (PW4) went to the crime scene on 24/12/2009 to prepare 'the sketch map. · PW4 stated that he was not accompanied with any leader. When being cross-examined by 6th accused/4th Appellant, PW4 stated at page 29 of the typed trial Court proceedings that, he did not go with the leader of the village, which in any case did not prevent him from doing his job. In the circumstances, Mr. Ezron was of the view that, either PW3 or PW4 was not telling. the truth, In reply M/s. Gisela submitted that, the difference in the dates does not vitiate the fact that the incident occurred. It was a minor error. on· the respective arguments by the learned Counsels in support and rival to the 2nd , 5th, 6th, 7th and 10th grounds of appeal, it 1s without doubt that, the evidence by PW3 and PW4 clearly contradict each other. While _ . M- Page 18 of 24 PW3 stated that on 23/12/2009 he went with the Police to the scene of crime where the Police drew a sketch map, at page 27 of the typed trial Court proceedings PW4 stated that,_ he went to visit the crime scene on 27/12/2009 and he did draw the sketch map; PW4 stated further that, on that day he did not accompanied with any leader. But while tendering the Sketch Map as exhibit, PW4 stated that, he d_rew the Sketch Map on 24/12/2009. I have g9ne through the Sketch Map (Exhibit Pl). which is on record. I am satisfied that it was drawn· on 24/12/2009. In the premise, the evidence by PW3 and PW4 is clearly full of contradiction as to when the alleged visit to the crime scene took place. It is human impossible for two persons who claim to have been at the same pla~e together, for each to come up with a different date of set of facts ---------~13ettainifl§-t-0---s-ame-event:---=r-his-being-the i:a-se the credibility of PW3 and ._ PW4 has greatly been shaken and neither of them can be believed as a being a reliable and credible witness. Mr. Ezron submitted further that, PW1 stated as at -page 20 of the typed triai Court proceedings that, he went to report at the Village Office, and then went to the Police, and was left there while giving his statement by the Police who went to the crime scene. If it could be taken that the Village Office to mean any Village. Office, for he did not mention· the sp~cific .Office either Village Executive Office, then· it means that PWl went to the Village Office just once, PW3 stated that it is PW3 who took PWl to · the Village Executive Officer as at page 25 of the typed trial Court proceedings. If PW1 went to report to Village Office, there was no reason for PW3 to take PWl to WEO and to the Village Executive Officer. If it is . "iti::;} fl ,. -----. Page 19 af 24 .. J ,I, true that PW1 was taken by PW3 to the office, then PW1 would have stated so in his testimony, Mr. Ezron maintained. Mr. Ezron submitted further that, the other thing which shows that PW1, PW3 and PW6 were not telling the truth is that, it could not have been possible for PWl to mention completely new people before PW3; and later on to mention another set of completely new people to PW6. Mr._ Ezron_ stated further that, if the learned trial Magistrate had considered those material contradictions,· she could not have found the accused gu-ilty of the offence they were charged with. Mr. Ezron referred this Court to-the decision of the Court of Appeal of Tanzania in the case of Dickson Ma/eke/a v... Rep.., Criminal .Appeal No.13 of 2010 . {CAT) {MWZJ,- where in that case material contradictions led to the Court finding that the case had not been proved against the Appellant. In reply, M/s Gisela submitted that, on the doubt on contradictory evidence of PW1 and PW7 ·who did not report the event immediately, PW2 stated that he got injured, and the- accused chased him and he ran to the hills to hide especially by 4th accused James Fabian Otieno, who is not among the Appellants. In rejoinder, Mr. Hezron was puzzled as to why the evidence of PW3 was not considered since was in favour of the defence case. It was PW3 who stated that he received the complainant first; and that it is PW3 who took PW1 to report to PW6. PW1 while before PW3 -he mentioned a completely set of different people none of whom was the accused; although he had intimated to go back but never did. It is on that basis Mr. Ezron stated t·hat,_ PW1 did not tell the truth. p;g·~ Page 20 of 24 ' .. ',1 A On the respective arguments by the learned Counsels in support and rival, M/s. Gisela rightly submitted, the question where did exactly the incidence was reported to is not at issue. However, this Court finds it not to have . been possible for PW1 to mention a .completely new set of suspects ' before PW3 and later on to mention another set of completely new suspects to PW6. This is a serious contradiction which goes to the root of the case. The learned trial Magistrate ought to have properly resolved this . . particular contradiction. Based on such material contradiction, ·c1early the case for the prosecution was not proved against the accused beyond reasonable doubt. It is for the above reasons this Court finds that the 2nd, 5th , 6th , ih and 10th grounds of appeal have merits. They accordingly hereby allowed. ----0n-~the· 3rd · and-4th ·§rounds-of-appeal,Mr; ·Ezron submitteci-that,--much-as the accused ·did not give notice- to rely on the defence of alibi, however,· being laypersons, still the trial Court was to have looked at the defence and . . give· a decision; particularly considering the contradictions in the prosecution case, which have been pointed out. According to Mr. Ezron, it is not eviderit how the accused were arrested; where and by who. And on whose information the arrests were made. Mr. Ezron was of the view that, if the tri_al · Court had considered the areas poin~ed out; it could have considered the defence of alibi. In their defence, DW2 as at page 40 of the typed trial Court proceedings stated that, he was arrested on 09/03/2010, which is about four months- from the date of the occurrence of the alleged incident; DW3 was arrested on 20/03/2010. The ·rest of the accused persons as to how, when and where they were Page 21 of 24 ... ... ., arrested is still a mystery because there is no explanation. Furthermore, there is no explanation why their arrest. was that much delayed; whether they were avoiding arrest or had run away from the village, there is no any explanation. . According to Mr. Ezron, the trial Court ought to . have . . entertained doubts and consider the defence of alibi. In support of his submissions on this point, Mr. Ezron referred this Court to the decision of the Court of Appeal of Tanzania in the case of David Bunonko Vs. Rep./ Criminal Appeal No. 128 of' 2002 {CAT} {MWZJ at page 10, where it· was stated that; "if the trial Court had taken cognizance of the alibi defence it could have considered it and give them the benefit" In reply, M/s Gisela submitted that, the trial Court considered the defence of alibi, as at page 4 and 5 of the Judgment. =..-:_-_-_-__~Arguing-on-the:..sentence-imposed on-the-Appeliants;--M/s-Gis~la- stated- __ - - _ -~ that, it was not proper, since the offence of arson upon conviction attract life imprisonment as per Section 319 of the Penal Code, Cap.16 R.E. 2002. M/s Gisela prayed before this Court for the enhancement of the sentence· in respect of 2nd , 3rd ; 6th , 4th , 'ih accused/Appellants and 5th Appellant who were each sentenced to serve (4) ·years imprisonment instead of life imprisonment. M/s Gisela prayed that, the conviction be upheld. On the respective arguments by the learned Counsels, the Judgment of the trial Court shows clearly that the defence of alibi was considered by the trial Court and determined on its merits. As the learned trial Magistrate correctly observed, .the Appellants had failed to comply . with the requirements for raising the d~fenc~ of alibi as set out under the provisio_ns .r;;_j"·---· . Page 22 of 24 f) _, - of section 194 (4) of the Criminal Procedure Code, Cap.20 R.E. 2002. It ) was therefore proper for the learned trial_ Magistrate to invoke the provision of section .194(6) of the Criminal Procedure Act, Cap.20 R.E. 2002, and accord no .weight to the defence of alibi. Even if it was . not clear on how and when the accused persons were arrested but the requirements for raising a defence of alibi are undoubtedly statutory and -thus must therefore be strictly complied with. M/s Gisela has prayed before this Court for the enhancement of the . . nd rd th th th sentence in respect of 2 , 3 , 6 , 4 , 7 accused/Appellants, fifth Appellant, who were sentenced to (4) years imprisonment instead of life imprisonment. . However, M/s Gisela never informed . this Court;. if the sentence of life imprisonment is under the Minimum Sentences Act, otherwise the trial Court has discretion to impose a lesser sentence depending on the circumstances of each case. However,· since this Court ·has made a finding that, the prosecution case was not proved beyond reasonable doubt, the prayer for the enhancement of the sentence of four- . . (4) years to life imprisonment by M/s Gisela cannot be granted. It is for the above reasons, this Court finds that, the 3rd and 4th grounds of appeal do not have any merits. They are accordingly hereby dismissed. In the whole and for the above reasons, the appeal has merits, It is hereby allowed. The conviction and sentence by the District Court of Tarime is hereby quashed and set aside. The Appellants, Marseus lanya Otuma, Christopher Ondego, John . . Ondego, Idd Juma and Okec~ Ondego are hereby discharged from the. ttf7l-~-- ,, li\.c/. Page 23 of 24 .. offences they were charged and convicted with in Criminal Case No. 349 of 2016 before the District Court of Tarime. • The Appellants Marseus lanya Otuma, Christopher Ondego, John Ondego, Idd Juma and Okech Ondego shall be immediately released from prison where they are being held and set at liberty unless they are held there for some other lawful matters. It is so ordered. R.V.MAKARAMBA - JUDGE 17/11/2017 Page 24 of 24 -