CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA ( CORAM: MUGASHA. 3.A.. MLACHA. J.A. And NGWEMBE. J.A.l CRIMINAL APPEAL NO. 646 OF 2020 NKOBA KAIYA.......................................................................APPELLANT VERSUS THE REPUBLIC.................................................................. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Mwanza) (Ismail. 3.1 dated the 9th day of September, 2020 in Criminal Appeal No. 104 of 2019 JUDGMENT OF THE COURT 6th & 19th August, 2024 MLACHA. J.A.: The appellant was charged of Armed Robbery contrary to section 287A of the Penal Code (Cap 16 R. E. 2002) at the District Court of Nyamagana in Criminal Case No. 72 of 2018. It was alleged by the prosecution that he robbed TZS. 200,000 from Wangwe Thomas on 12/12/2017 at Kagomu street, Mahina area, Nyamagana District, Mwanza Region. Immediately before such stealing he did cut the said Wangwe Thomas with a machete on his head and left hand in order to obtain the said property. He was convicted and sentenced to serve 30 years in jail. i His appeal to the High Court at Mwanza in Criminal Appeal No. 104 of 2019 was not successful, hence the appeal now before the Court. The evidence which formed the basis of the prosecution case is as follows: The appellant visited Wangwe Thomas (PW1) three times on 12/12/2017 looking for him. On the first visit which was at 10:00 hours, he met his wife, Bulula Joseph (PW6), who told him that PW1 was away. PW6 knew the appellant but he did not know the agenda between him and her husband. The appellant returned again at 15:00 hours. This time he met the children who told him that PW1 was yet to return home. The children communicated this information to PW6. Now, later during the night, at 21:00 hours, while PW1 was seated outside the house with Mwita Ryoba (PW2), PW6 heard the voice of the appellant who was talking with PW1. She later heard an alarm from PW1 and rushed outside. On getting out, she found the appellant and PW1 involved in a fight. The appellant was holding a machete. PW1 had been injured on the head and left hand and he was bleeding. She raised an alarm. The appellant ran away leaving the machete behind. Frank Wangwe (PW3) who was with PW6 had a similar account. PW1 discharged PW2 to accommodate the appellant. PW2 left but it did not take long before he heard a cry from PW1. He rushed back. On arrival, he found the two holding each other in a fight. The appellant had a machete. PW1 was bleeding. He attempted to intervene but the appellant turned the machete on him. He stepped aside. The appellant dropped the machete and ran away. Both PW2 and PW6 said that the appellant robbed TZS. 200,000.00 from PW1 but PW1 did not speak of the amount. He only said that the appellant took some money from the rear pocket of his trouser. The machete was handled to D 6814 D/SSGT Someki (PW4) who tendered it in court (exhibit PI). PW1 was sent to the hospital and attended by Dr. Patrick (PW5) who tendered the PF3 (exhibit P2). It exhibits that PW1 sustained bruises and cut wounds on the head and hand. He defined it as an assault. The appellant denied committing the crime. He described PW1 as his relative, a friend and a neighbour. He associated what happened in a land dispute which existed between him and PW1 and not robbery. He denied to assault PW1 or rob his money. He wondered being associated with the offence of armed robbery which he did not commit. The two courts did not find doubt in the prosecution case hence the conviction and sentence as alluded to above. The appellant had a substantive and supplementary memorandum of appeal whose grounds are paraphrased, respectively, as under: "1. That, the prosecution case was not supported by evidence from neighbours or independent people who came soon after the commission o f the crime. 2. That, there was no evidence to establish the offence o f armed robbery but the offence o f assault causing bodily harm triggered by a land dispute between the two adversary families. 3. That, there was a delay to arraign the appellant for two months casting doubt to the genuineness of the prosecution evidence. 4. That, there was no good identification o f the appellant. 5. That, the High Court erred to reject the appellant's defence and uphold the prosecution case which was not proved to the hilt. 6. That, the two courts bellow did not have a fair assessment o f evidence leading to a failure o fjustice". "1. That, there was no evidence to prove the offence beyond reasonable doubt. 2. That, the prosecution failed to prove its case". 4 At the hearing, the appellant appeared in person fending for himself whereas the respondent Republic was represented by Ms. Lilian Erasto Meli, learned Senior State Attorney, assisted by Mr. Sileo Leone Mazullah and Ms. Bitunu Yunus Msangi, both learned State Attorneys. When the appellant was invited to address the grounds of appeal, he opted for the respondent Republic to submit on the grounds of appeal while retaining his right of rejoinder, if any. On taking the floor, Ms. Meli intimated that she was not supporting the appeal. Amplifying, she contended that, there was good evidence to support the conviction from witnesses who appeared before the trial court. She conceded that, no witness came from the neighbours who responded to the alarms raised by PW1, but contended that the prosecution retain the freedom to determine who should testify at the trial. Further, he added, all witnesses are entitled to credence and she cited to us our decision in Goodluck Kyando v. R, [2006] TLR 363 to support this position. On the delay to arraign the appellant, he contended that it was reasonable and was caused by the delay in arresting him. Citing our decision in Daktari Jumanne v R, (Criminal Appeal No. 603 of 2021) [2023] TZCA 18020 (28 December, 2023) TanzLII, she submitted that the delay of 2 months was reasonable. She contended that the defence of the appellant was discussed by the High Court and rejected as appearing at pages 72 to 74 of the record of appeal. On assessment of evidence, she contended that the evidence of witnesses and the exhibits were given due consideration by the lower courts. She submitted that the machete was dropped by the appellant and picked at the scene of crime by PW6 who gave it to PW4 and later tendered in court. She could not doubt the chain of custody of the exhibit. Submitting on the supplementary grounds of appeal, Ms. Meli contended that there was good evidence to prove the offence beyond reasonable doubt. She contended that key elements of the offence of Armed Robbery, to wit; stealing, use of weapons and threat of violence were established by prosecution witnesses which were prove. There was also evidence of the stolen property, TZS. 200,000.00, and the machete which was used in the commission of the crime. Further, the doctor who attended PW1 exhibited in the PF3 that PW1 had cut wounds proving the existence of violence. She discarded the idea of existence of a land dispute between PW1 and the appellant. She implored the Court to find that there was good evidence to prove the case beyond reasonable doubt and urged us to dismiss the appeal. In his short rejoinder, the appellant denied to commit the crime. He contended that there was nothing but a land dispute between him and PW1. He urged the Court to set him free. Having examined the record and considered the submission of the parties, we think the crucial issue before us is whether there was evidence to prove the offence of Armed Robbery contrary to section 287A of the Penal Code with which the appellant was charged. As intimated above, the two courts below found that there was good evidence to establish and prove the offence. The law is well settled that, on a second appeal like this one, the Court will not disturb concurrent finding of facts by the trial court and the first appellate court unless it can be shown that they are perverse, demonstratably wrong or a result of a complete misapprehension of the evidence, nature or non - direction of the evidence; violation of some principle of law or procedure or have occasioned a miscarriage of justice. See DPP v. Jafari Mfaume Kawawa [1981] TLR 149, Wankuru Mwita v. Republic, Criminal Appeal No. 219 of 2012 (unreported) and Daniel Matiku v. Republic, (Criminal Appeal No. 450 of 2016) [2019] TZCA 582 (3 December, 2019) TanzLII, to mention a few. With respect to the learned Senior State Attorney, our close scrutiny of the charge, the evidence and decisions of the lower courts have led us to find that there was a complete misapprehension of the evidence which has occasioned a miscarriage of justice, hence the need for us to reassess or re-evaluate the evidence. We shall demonstrate as follows: The offence of Armed Robbery is established by section 287A of the Penal Code (Cap 16 R.E. 2019) which reads as under: "287A A person who steals anything, and at or immediately before stealing is armed with any dangerous or offensive weapon or instrument and at or immediately before or after stealing, uses or threatens to us violence to any person in order to obtain or retain the stolen property, commits an offence o f armed robbery and shall, on conviction be liable to imprisonment for a term o f not less than thirty years with or without corporalpunishment". (Emphasis added) Commenting on 287A of the Penal Code, the Court had this to say in Kisandu Mboje Versus The Republic, (Criminal Appeal No. 353 Of 2018) [2022] TZCA 425 (14 July, 2022) TanzLII: "... according to the above provision, for the offence o f armed robbery to be proved, the prosecution must prove that, one, there was an act o f stealing; two, that, immediately after stealing the assailant was armed with a dangerous or offensive weapon or robbery instrument; and three, that the said assailant used or threatened to use actual violence in order to obtain or retain the stolen property - see Haji Said Selemani's case (supra). This position was also stated in the case 8 o f Shabani Said Ally v. Republic, Criminal Appeal No. 270 o f2018 (unreported)" [See also Angulile Jackson @ Kasonya v. DPP, (Criminal Appeal No. 162 of 2019) [2022] TZCA 66 (24 February, 2022) TanzLII, Shaban Said Ally v. Republic, (Criminal Appeal No. 270 of 2018) [2019] TZCA 382 (6 November, 2019) TanzLII and Haji Said Seleman v. The Republic, (Criminal Appeal No. 98 of 2020) [2022] TZCA 60 (24 February, 2022) TanzLII.] The follow up question now is whether there was evidence to establish the three elements of the offence of armed robbery in this case. The learned Senior State Attorney has implored us to find that all the three ingredients of the offence have been established. With respect once again, we don't share the view. We think that the evidence points at a completely different offence. There was thus variance between the charge and the evidence which could not be noticed. We will point three areas: First, the conduct of PW1 and the appellant: The evidence of PW6 shows that the appellant came at the scene of crime three times that day; at 10:00 hours, at 15:00 hours and 21:00 hours looking for PW1. He indicated that he had something to discuss with PW1. He could not meet him during the day. When he came on the third occasion at 21:00 hours, he met PW1 and PW2 whom he greeted. PW1 welcomed him. PW1 released PW2 so that he could accommodate the appellant. The two people knew each other. They engaged in a conversations which were heard by PW6 who was inside the house. The discussions ended in a fight where PW1 was cut by a machete on the head and left hand. PW2, PW3 and PW6 witnessed the fight. PW2 attempted to intervene in rescuing of PW1 but the appellant threatened to cut him as well. He took some steps back giving the appellant a chance to run away. PW2, PW3 and PW6 saw the appellant running away leaving the machete behind. Second, the stolen amount of money: As intimated above, whereas PW2 and PW6 said that TZS. 200,000.00 was robbed from the appellant, PW1 did not say so. He only said that the appellant passed a hand to his pocket in the fracas and took some money. We wonder why PW1 who was the victim could not mention that TZS. 200,000.00 was robbed from his pockets. We think being the complainant, he was the best witness to establish this fact more than anybody else, which contradicts what was said by PW2 and PW6. This cast doubt on the prosecution. Three, the existence of a fight between PW1 and the appellant: All witnesses stated that the appellant came and was welcomed. He had a discussion with PW1 which ended in a fight. This fight does not appear to involve a case of robbery. 10 Looking at what happened, we don't think that, the appellant was a bandit as alleged. His conduct during the day and at night does not suggest that he was one. If he was a bandit, he could not have visited the residence of PW1 repeatedly looking for him. Further, the manner in which he was received by PW1 does not suggest that he was a bandit. The evidence suggests that the two had an issue between them which caused PW1 to release PW2. Being welcomed indicates that the two people had something to discuss which could not reach far. It soon turned to a fight. This shows that there was an issue which could not be resolved amicably leading to the fight. The existence of the machete shows that the appellant came prepared that if PW1 could not heed to his demands he could use force to get his right or discipline him. What was between them could not be established by the prosecution but we associate it with the land dispute which was disclosed by the appellant in his evidence and was not challenged by the prosecution. It follows that, there was no evidence to establish the offence of Armed Robbery but Assault Causing Actual Bodily Harm contrary to section 241 of the Penal Code. Ordinarily, the prosecution could have sought to amend the charge under section 234 (1) of the CPA but this was not done. Thus as it is, the evidence did not support the charge of armed robbery. li The law is settled that, a charge which is in material conflict with the witness's testimonies materially shake credence of the prosecution case and renders the prosecution case not proved to the required standard. See Saidi Musa Soweni v. The Republic, (Criminal Appeal No. 93 of 2020) [2022] TZCA 218 (22 April, 2022) TanzLII, Barnaba William Malayo v. Republic, (Criminal Appeal No. 254 of 2020) [2022] TZCA 431 (15 July, 202) TanzLII, Kandola Paulo @ Kadala v. Republic, (Criminal Appeal No. 61 of 2017) [2018] TZCA 625 (8 March, 2018) TanzLII, Thabit Bakari v. Republic, (Criminal Appeal No. 73 of 2019) [2021] TZCA 259 (17 June, 2021) TanzLII. In Thabit Bakari (Supra) we stated thus: "It is well settled that In such a situation, failure to amend the charge is fatal and prejudicial to the appellant. This is because, such anomaly lead to serious consequences to the prosecution case". It is obvious that the evidence lead by the prosecution did not prove the offence with which the appellant was charged. Had the lower courts examined the evidence, the way we have done, they could not have convicted the appellant as charged. In view of what we have demonstrated above, we see no base to discuss other grounds of appeal. The appeal is merited and allowed. We 12 direct immediate release of the appellant from prison unless lawfully held on some other lawful cause. DATED at MWANZA this 19th day of August, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL The Judgment delivered this 19th day of August, 2024 in the presence of Appellant who appeared in person, Mr. Christopher Olembile, learned State Attorney for the Respondent / Republic, is hereby certified as a true copyof the original.