CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA ( CORAM: MUGASHA. J.A.. KITUSI. J.A. And MASHAKA. J.A/1 CRIMINAL APPEAL NO. 636 OF 2020 MURUNGAISARO ©NG'WAINA 1st APPELLANT MARWA MAKURI @MAKURI.... 2nd APPELLANT VERSUS THE REPUBLIC RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Tarime) (Tiganga, J.) dated the 16th day of June, 2020 in Criminal Session Case No. 30 of 2017 JUDGMENT OF THE COURT 23rd & 28th October, 2024 KITUSI, J.A.: The appellants were convicted of murder under section 196 and sentenced to death under section 197 of the Penal Code. It was alleged that on 19th September, 2015 at 23:45 hours at Nyabitocho Village within Tarime District, the appellants murdered one Mwita Mcharya @Kewanda in the course of executing armed robbery. There were two star witnesses for the prosecution who claimed to have seen the culprits and identified them. The first is Muchari Mwita (PW1) the deceased's father and owner of the shop that had been targeted in the alleged armed robbery. PW1 lived in the same compound with his son who had been married to one Ester, but occupying different houses. On the fateful night PWl's door was broken open and three bandits got into his house and demanded to be given money. They assaulted PW1 with a machete and he had to surrender some money which he had kept in his trouser pocket although the bandits were unsatisfied and demanded more, leading him to his shop a few steps away. They took more money from the shop and locked him in as they went out. While PW1 was confined inside the shop with the door locked from out, he heard a gunshot and somebody whose voice he identified as Ester's wailing and pleading for help. On hearing that alarm, PW1 got out only to learn that his son Mwita Mchari had been seriously injured by the gunshot. He joined Ester in raising alarm. Those who responded to the alarm, including PW2 arrived at the scene when the bandits had gone. Mwita Mchari and PW1 were taken to hospital but the son would not survive. He died on 20/1/2015. PW1 further stated that he identified the assailants when they first entered into his room which was lit by a solar lamp. He described the size of the room as being 4 x 4 and that he knew the second appellant because he was his brother in law. Those who responded to the alarm traced footmarks which led to the homestead of one Lucas Soroi in a village within Kenya The other piece of evidence is the statement of Ester, the deceased's wife as earlier intimated. There is no doubt that she was in the same room with the deceased when he was allegedly shot, therefore an eye witness too. However, she would not be traced to adduce direct evidence because she was reported to have gone back to her home village in Kenya. Therefore, Ester's statement was tendered under section 34B (2) of the Evidence Act and marked exhibit PE - 3. In defence the appellants denied being the perpetrators of the robbery and murder. The first appellant testified that he was in bed at his residence. The second appellant stated that he was one of the good intentioned people who responded to the alarm. Acting on PWl's direct evidence of visual identification and exhibit PE -3 the High Court convicted the two appellants and sentenced them as already stated. This appeal challenges that decision for being erroneous in fact and law. On the date of the hearing of this appeal, the appellants were represented by Mr. Cosmas Tuthuru and Mr. Leonard Elias Magwayega, learned advocates respectively for the first and second appellants. Mr. Isihaka Ibrahim, Ms. Agma Haule and Ms. Beatrice Mgumba, all learned State Attorneys, represented the respondent Republic. The learned advocates abandoned the original memorandum of appeal as well as the supplementary and were granted leave to substitute them with another supplementary containing four grounds. However, they addressed us on only three out of the four grounds in the said substituted memorandum of appeal, which may be paraphrased as follows; 1. The High Court erred in holding that the charge had been proved beyond reasonable doubt 2. The High Court erred in law and in fact in holding that there was unmistaken evidence of visual identification at night without sufficient light. 3. The High court erred in law and fact in retying on the statement of Ester which was wrongly admitted in violation of section 34B (2) of the Evidence Act. Mr. Tuthuru who took the mantle in association with Mr. Magwayega chose to start by addressing us on ground 3 which faults the trial court for admitting and even relying on the statement of Ester (exhibit PE - 3) which was tendered in violation of section 34 B (2) of the Evidence Act. The learned counsel submitted that while there was evidence from PW4 that the nearest police station in Kenya was only 2 kilometres away, there was no proof of the efforts that were made to get Ester for purposes of service. He cited the case of Juma Ismail &. Another v. Republic, Criminal Appeal No. 501 of 2015 (unreported) in which the Court held that there must be proof that the witness was not found. The learned advocate argued further that the other conditions for the admissibility of a witness' statement under section 34 B (2) of the Evidence Act were not met. These are that the statement was admitted only within 30 minutes of the prosecution's verbal notice and that contrary to section 34 B (2) (f) of the Evidence Act, the officer who recorded the statement did not make a written declaration that he had read over the statement to the witness who could not herself read it. Connected to the violation of the requirement of notice, Mr. Tuthuru argued that although the advocates for the appellants had waived it, in criminal justice there is no such thing as waiver or consent which goes against statutory procedures. The learned advocate supported his view with the decision of the Court of Appeal for Eastern Africa in Cheung Shing v. Regina, Criminal Appeal No. 472 of 1955. He also cited the case of Stephen Jason & 2 Others v. Republic, Criminal Appeal No. 79 of 1999 (unreported) for the principle that the court is not precluded from addressing a cautioned statement simply because it has not been objected Mr. Ibrahim was candid enough to concede to these violations. We at once, express our being associated with the two cases cited by Mr. Tuthuru that defects in criminal proceedings cannot be validated by a waiver or consent. In this case the statement of Ester was swiftly admitted causing justice to suffer at the altar of speed. We have said elsewhere during these very ongoing sessions that speed is good but justice is better. On those grounds we conclude that exhibit PE -3 irregularly found its way into the evidence and we shall not consider it and it is exponged. Ground 3 of appeal is, therefore, allowed. That leaves us only with the evidence of PW1 for our consideration and it takes us to ground 2 which challenges the evidence of visual identification. PWl's evidence was in Mr. Tuthuru's line of fire. The learned advocate charged that PW1 did not describe the intensity of the bulb light in the room and faulted the trial Judge for making a finding that the bulb was hanged on the ceiling, pointing out that there was no evidence to that effect. He cautioned against relying on the evidence of visual identification in a commotion as it was decided in Ndaro Sumuri Mabuse @ Amiri Ronaldo & 2 Others v Republic, Criminal Appeal No. 117 of 2020 (unreported). Mr. Magwayega raised doubt in PWl's credibility wondering how he got out while he had earlier stated that he had been locked in. In response, Mr. Ibrahim insisted that there was sufficient evidence of visual identification because there was sufficient light in the small room and moonlight outside and further that the attack lasted 15 minutes. He added that PW1 named the culprits immediately. He relied on the case of Makende Simon v. Republic (Criminal Appeal No. 412 of 2017) [2021] TZCA 156 (3 May 2021 TANZLII). We agree with Mr. Ibrahim on the principle that naming of a suspect at the earliest available time, is an assurance to his credibility, as stated in the case of Marwa Wangiti Mwita & Another v. Republic, (Criminal Appeal No. 6 of 1995) [2000] TZCA 23 (12 June 2000) TANZLII, however, we shall consider this fact along with other pieces of evidence. According to PW1, the alarm was responded to by PW2 among others. PW2 testified that the deceased and PW1 named the appellants whom they knew. We note that in his defence, the second appellant stated that he also responded to the alarm even took part in tracing the culprits to Kenya. The same was stated by PW2 that the people who gathered at the scene traced footsteps to Lucas Sorai's residence within Kenya where they retrieved a radio stolen from PW1. There was evidence that Lucas Sorai was arrested but later escaped. In dismissing the second appellant's defence the learned trial Judge took the view that if the second appellant was indeed among those who constituted the search team, he should have called a witness who saw him. On our part, we are first tempted to agree with Mr. Tuthuru that the circumstances of flight in the course of the robbery affected the calm of every victim of the robbery and may have had a negative effect in the quality of visual identification. We also share Mr. Magwayega's puzzle in the manner PW1 who had been locked in, got out and identified the bandits for the second time. We also think that as a matter of prudence and reality the search team would have gone to the second appellant's house within that village first before going to Kenya. It is therefore doubtful if the deceased named the second appellant who according to PW1 was his in law. Similarly, there is no explanation why the search team did not go to the first appellant's house whose defence was that he was in bed at his house. Lastly, by demanding the second appellant to prove his involvement in the search, the learned trial Judge wrongly shifted the burden of proof. All these doubts cut deep in the evidence of visual identification adduced by PW1. Had the learned Judge addressed these doubts and considered the defence case without shifting the burden, he would not have become satisfied that the evidence of visual identification was impeccable. For those reasons, we allow ground 2 of appeal. Consequently, there is no basis for holding that the prosecution discharged its burden of proof of the charge to the standard required, which disposes of the first ground of appeal. For these reasons this appeal is allowed, convictions quashed, sentences set aside, with an order of immediate release of the appellants if not otherwise lawfully held. DATED at MUSOMA this 28th day of October, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL October, 2024 in the presence of the Appellants in person represented by Mr. Daud John Mahemba, learned advocate who holding briefs for Mr. Cosmas Tuthuru and Mr. Leonard Elias Magwayega, both learned advocate for the 1st and 2nd Appellants respectively and Mr. Zarubabel Ngowi, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of the original. J. E. FOVO DEPUTY REGISTRAR COURT OF APPEAL