alfredy kwezi alfonce vs republic 2022 tzca 355 16 june 2022

IN THE CO URT OF APPEAL OF TAN ZAN IA AT KIGOMA (CORAM : W AM BALI. J.A., KITUSI, J.A. And KENTE, J.A.) CR IM IN AL APPEAL NO. 216 OF 2021 ALFR ED Y KW EZI @ A L F O N C E ..............................................APPELLAN T VERSUS THE R E P U B L I C .................................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Kigoma) (Matum a, 3.) Dated the 8th day of April, 2021 in Crim inal Sessions Case No. 1 of 2021 JUDGMENT OF THE COURT lCth & 16th June, 2022 WAMBALI, J.A.: On 8th April, 2021, the High Court of Tanzania sitting at Kigoma delivered the decision in Criminal Sessions Case No. 1 of 2021 in which it found the appellant, Alfredy Kwezi @ Alfonce guilty of the offence of murder contrary to section 196 of the Penal Code, R.E 2019 (the Penal Code). Ultimately, the appellant was convicted and in terms of section 197 of the Penal Code, he was sentenced to suffer death by hanging. i It was plainly laid in the particulars of the information presented before the High Court that on 15th day of November, 2018 at Mgwanda "B". Hamlet within Kakonko District in Kigoma Region the appellant murdered Godfrey Ndayate. Essentially, the prosecution case was supported by the evidence of six witnesses, namely, Anatalia Thomasi (PW1), Laurence ^Gasper (PW3), Bigilimana Francis Mapigano, a doctor (PVV4), Insp. Kisu A. Mwapongo (PW5) and G. 3226 DC. Cretus Ngonyani (PW6). In addition, the postmortem Report and sketch map of the crime-scene were tendered and admitted as exhibits PI and P2 respectively. Briefly, at the trial, it was the evidence of PW1 and PW2 that on 15th November, 2018 at about 20:00 hours, they witnessed the appellant and one Linus Ngowe (not part of the trial and this appeal as he allegedly escaped to an unknown place to date), attacking the deceased with a bush knife (panga) at his home. Particularly, PW1 testified that on the fateful date and material time she was at her home sleeping when she heard a bang and when she woke up and came out towards the sitting room, while standing at the back of the door, she saw the appellant (her nephew) and Linus Ngowe cutting her husband with a panga at the sitting room. She testified further that while standing about five paces away, she managed to see the assailants clearly and identified them by the aid of a solar light fixed on the roof whose intensity was high in what she described *, * 's' ; in Kiswa'hilias "ilikuwana mwanga mkubwa sana". PVVl'allegedly witnessed the incident for about 4 or 5 minutes before she came out of the room and ran to the neighbours for help and when she returned at the’ house, she found the deceased laying down dead and the assailants had fled. PW1 also testified that before the incident, on 10th October, 2018 while with her deceased husband from the market to their home, the appellant invaded and cut them three times with a panga and was arrested and' charged in court, convicted and sentenced to three months conditional discharge. Besides, she stated the cbnviction and sentence was in respect of the assault of her husband as on her part she decided not to pursue her case against the appellant. During cross-examination she testified that 3 prior to the assault and the deceased's death she had a land conflict with the appellant's father. PW2, the daughter of the deceased, gave a somewhat similar story that she witnessed the appellant and Linus Ngowe cutting her late father outside the house where he was seated. However, fpr her part, before the. incident, she was in the kitchen • ' • .fctfeEs ’ > ■'-I ' which is a building separate from the house cooking when she heard people murmuring. When She Came out, she saw the appellant who threatened her with a panga. She nevertheless later While' standing about 3 paces from the crime scene, saw the assailants attacking the deceased with panga, and that she managed to identify them including the' appellant, her cousin being aided by the moonlight and solar light. She did not however describe the intensity of the light at that particular place asffhe deceased sat outside'the house. Following the incident, PW2 was also’ afraid and rah to the neighbours'for help leaving the 'assailant accomplishing their unlawful act, and when she came back in the company of neighbours, she found her father diead arid the culprits had run away. PW3, PW5 and RW6 were among the persons who arrived at the scene on that fateful night and found the deceased dead, with his neck almost completely chopped off. According'to their testimonies, they were informed by PW1 and PW2 that they managed to identify the assailants and loudly named the appellant and Linus Ngowe, the Hamlet Chairman who had already Scaped. PW5 in company of other police officers took the body of the deceased to the mortuary at Kakonko hospital and in the morning of the next day, he proceeded with the investigation, recorded the witnesses' statements and drew the sketch map of the scene of crime. PW5 also tried to trace the appellant arid Linus'Ngowe at their homes but they were not there, and he stated that the latter had escaped and was at targe up to the time he testified at the trial. Notably, in a bid to explain the contents of the sketch map (exhibit P2), PW5 testified that the deceased was outside the house at point A where he was seated and later taken inside the house-sitting room at point B and after the assault, he was taken outside at point C. PW5 described the distance between point D, 'Srii. the kitchen where PWZ* was to point A as fivev(5) meters. PW5 further through exhibit P2 indicated that Jovaness Godfrey witnessed the crime from point F and saw the appellant at point K running from the scene of crime. PW6, (the investigator) essentially agreed with the evidence of PW3 and PW5 in respect of going to the scene of crime, taking the body of the deceased to the mortuary and that the appellant ■■" - ‘ .i'-.' '■ ■ ’ ' ' and Linus Ngowe were mentioned by the relatives of the deceased (PW1 and PW2) to have committed the offence. It is PW6 who testified that he arrested the appellant on "30th Noverriber, 2018 at Kibondo District Court where lie had gone to attend the hearing of his criminal case though he did not know where he came from as he had traced him at his home in vain. However, PW6 stated that after he interrogated the appellant, he denied to have committed the heinous offence on the fateful date.1 PW4, a doctor who examined’ the body of the deceased arid filled the postmortem report (PMR) which was tendered and admitted as exhibit ‘ PI confirmed that the deceased was butchered arid his head almost chopped off his corpus. He described this cause Of death as multiple severe cut wounds. 6 In short, the substance of the prosecution evidence was that the appellant murdered the deceased on the fateful day with malice aforethought. On his part, the appellant defended, himself with the allegation (as DW1) and sought the support of two witnesses, namely, Francisco Gombo (DW2) and Sikiliza Francisco (DW2). He testified that at the material day and time he was at his grandfather's (DW2's) home together with other relatives, Ntezimana, Baliyahunda, Keka, Sikiiiza. While there at around 20:00 hours, they'heard an alarm (mwaho) which was raised signaling that something bad had occurred in the Hamlet, and thus they all decided to go where the'alarm was heard, only to team that the deceased was murdered and they were accused'of killing hirri. Indeed, he testified that, while, they were walking towards the scene, they met one Kasindi Godfrey, a son of the deceased,, who started to attack them and injured Sikiliza. As a result, they ran to save their lives and went to the Village Executive Officer (VEO) home, asking for. and they were given a letter allowing them to take Sikiliza to Hospital for treatment. T h e ; appellant emphasized th'atv'his family escaped his home as they werS fearing to be attacked, and that he did not flee out of the village until,when he was arrested by the Police. He maintained that he AT :i did not harbour any grudge with the deceased family despite the conflict which existed between his late father and that family. He also admitted to have been arrested and charged in connection * Hr with aslfdltihg tine deceased and PW1 but was' grahte®' baii;by . r Kibondo District Court where he usually attended the hearing of the'case. DW2 and DW3 essentially associated themselves with the appellant's testimony that DW3 was attacked and they obtained a letter from the VEO and went to hospital. Generally, the appellant therefore categorically disassociated himself from committing the offence of murder on the fateful date. At the height of the trial, - the learned trial judge who presided over the trial with the aid of two assessors'evaluated the evidence for both sides and found that the defence had not punched serious holes in the prosecution case and thus disbelieved it. He patently found that, the appellant was properly identified at the scene of crime by RW1 and PW2'wilose evidence Was ' supported "by' ,PW3, PW5: and PW6. Eventually,- he affirmatively found that the case of murder against the appellant Was proved to the hilt. Consequently, he found the appellarit guilty, convicted and sentenced him to death by hanging as intimated above. . The findings/ conviction and sentence of the appellant by the trial Court has seriously dissatisfied him, hence the instant appeal, in which the memorandum of appeal comprises of three grounds of complaint which were wholly adopted by the counsel assigned to represent him at the hearing. . The hearing of the appeal proceeded in the presence of the appellant in person and his advocate, Mr. Silvester Darrias Sogomba, whereas, on the adversary side, Mr. Shabani Juma Massanja and-Ms. Happiness Ezekiel Mayunga, learned Senior S tate. Attorney and State Attorney, respectively entered appearance for the respondent Republic, Before the commencement of the hearina, it was unreservedly agreed that the thrust of.the appellant's appeal lies on the question whether the prosecution proved the case beyond reasonable doubts. Submitting in support of the appeal, Mr. Sogomba argued that the prosecution case was not proved to the hilt, because; 7 ' one, there are contradictions in the evidence of PW1, PW2 and exhibit P2 regarding the exact position where the deceased was allegedly assaulted. He explained that while PW1 stated that the assault was in the sitting room, PW2 testified that it vvas dutside thehoullt^Besides, he argued, according to the evidence of PW6 and exhibit* P2, the deceased was taken' from "outside and assaulted inside the hoiise and iater dragged outside Where 'the body was found laying down. He thus submitted that the contradiction went to the root of the case as the two'Witness's, that is, PW1 and PW2 were on different places, and thus it was ; s *''* * *‘fc * \1 i *' difficult to conclude in Which place the deceased was atteckedby the assistants. ' Two, that the identification-of the appellant at the scene of the crime which was allegedly made by PW1 and PW2 was not watertight. Though the learned advocate did not dispute that according to the record of appeal the witnesses and the appellant knew each'other as nephew and cousin, respectively, he forcefully submitted' that the condition at the scene 'of' Crime' waS 'not 10 favorable as both of them were under great; fear to the extent of fleeing away living the attackers and the deceased. He also argued that the few minutes spent at the scene, that is, 4 dr-5 rnTriutes and 10 minutes for PW1 and PW2 could not have enabled them to properly identify the assailants. Indeed, he stated that the distance of 5 paces and 3 paces for PWl and PW2 i i • ' i ’ respective!^ from the attackers' described by thehfi; vvas^doubtfiil. r>lr: Sogbmba' also submitted that though PW2 stated that she /* saw t!ie appellant and tinus Ngowe through the aid o f ' the; r^'doiilfyht^hd 'th'e' :sbi&r she did not 'describe:: the plade where the solar Ijght was placed and its intehsity. Besides’ "he added the intensity of the mobh'light Was' not'disclosed b f W 2 leavirlg doubt on its reliability. He also argued that w hitePW l testified that the solar light'was inside the house, it is not clear whether it $ the same source which Enabled PW2 to identify the a5saiiants'*a'S^§he‘*did' not disclose if another solar light bulb'was placed outside the house. Thus, relying bn decision o f the Court in Hassari Saad v. fhiesRepublic, CriminarAppeal No. 264 of 20i5 (unreported) at page 6 he argued that the moon light coulc! hot have assisted PW2 to identify the appellant and another, amid the1fear and fack of explahatioti on its intensity' on the particular xx-=. day as it really dependent on the weather. To this end, the learned advocate concluded this point by arguing that the criteria! for visual identification set by the Court in W aziri Am ani v. The Republic. [1980] T.L.R. 250 were not fully met as the identification of the prosecution eye witnesses was not water flight ■ .Thirdly, Mr. Soqomba argued that the defence of the appellant which he believed threw doubts to the prosecution case and. had to be resolved in his favour was lightly considered by the \ ' .\ 5* * ’i • , . «" * | * . ■ ♦, * , ’1 " i * 1,**' \J ' [ \i'; ./ , • , * • # ' * v » v. \ .. , \.................. 4‘ ’ v *. * * , > trial court and wrongly rejected. He maintained that the story of the appellant that he heard the alarm and was on the way to the scene, butVwas attacked and thus ran to rescue his' life was sufficient to alert the trial court to critically scrutinize the ehtire evidence in the record and come to'the conclusion that the appellant was not involved in Committing the'offence bf murder on the1material day. .In this regard, the learned advocate faulted the trial judge for drawing an inference from the previous conflicts between the appellant's and deceased's family and the accusation of the assault, whose case was pending at Kibondo District Court to 12 conclude that the appelljaht •must have been " the one: who assaulted the deceased to (accomplish the desire he had intended previously. In the circumstances, Mr. Sogom'pa prayed that the appeal be allowed on the contention that based on the evidence • I on record, the prosecution did not prove the case against the appellant beyond reasonable doubt: • ............... • I , ■ V. In response, Ms. lyiayunga categorically registered the respondent's stand to oppose the appeal on the contention that the case for the prosecutiqn was proved to the required standard. I i Basically, she stood firm in support of PW1 and PW2 on the argument that their testimonies were not contradictory as each >- stated what she saw vvith regard to the incident arid the i■ . [ • • , , -• l H -.t • involvement of'the appellant and Lihus Ngowe based on the position each stood at the scene of the crime. She argued that while PW1 was at the backdoor looking at what transpired at the sitting room, PW2, was atj the kitchen cooking and went o u ts it, witnessed what b^nspiredl outside the house:Where the deceased ihftrally sat/ before they both ran away frdm the's'cerie to seek the hdighbours7 assistance. Indeed, she argued that the eviderice :of ?Sf\ii siipjbdrtfeti"‘thcif of ljpWi arid' PW2 that' ther£ waS biddd 13 outside and inside the house where the deceased was attacked by the assailants. She therefore, maintained that there was no contradiction as alleged by the appellant's counsel since each Witness stated what she saw on that particular day, the bottijjri Imebfeing that the app<ellant and Linus Ngowe attacked the ■. w i\ / ‘ ' * d^6ase$t}y pan§a and caused his; death. ■ . ' ; 1; v- ■ -v .v .. •' ■•■ ' f.i. ‘ . : ..With regard to identification of the appellant, Ms. Mayuhga r : ..v • *’ • :;oi- = argued that though there is no dispute that the incident occurred at night, PW1 and PW2 fully identified the appellant and jJnus Ngowe at the scene of crime by the aid of solar light and moonlight whose, intensity was unquestionable considering that distance Where they stood being five meters* and three meters fo’r PW1 and PW2 respectively. The [earned State Attorney submitted further that the Tp V * * possibility of mistaken identity was fully eliminated because/the appellant and Linus Ngowe were wei! known to PW1 and PW2 as relatives of the former and that they resided in the .same village with them. She added that the fact that PW1 and PW2 mentioned'the appellant arid LihuVNd&ve to PW3, PW5 arid PW6 ^odh 'after, the' m£itient/%cided credence to their 'Credibility'' tHat •ffiey d'uiJy’ IdSiWiSd the assailantsat'the stene: of crirnel Besides; she argued that the appellant did not contest the fact that PW1 and PW2 knew him well as he said so in his defence and did not X , .m '* , •<L*' vT.*‘?- '* *Y V / ^ ' cross-examine them •on the respective fact. Ultimately, she submitted that, the conditions for proper identification set out in several decisions-of the Court including W aziri Am an v v Tife •Repulstl^tsdpraT V Chacha Jerem ia M uriirii ahci^Anotfier •> w. The Republic, Criminal Appeal No'. 551 of 2015 (unrepbrtecl), among others, were equally rriet. ' ' Responding: to. the complaint that the trial judge did not consider properly the .appellant's defence, she submitted that the' contention is unfounded. She made reference to the specific part of the reasoning and finding of the trial judge in which he dealt at lengths with the evidence of the appellant and. found that it was wanting Because'of the apparent contradictions lietweie'rV fiirh and his witnesses ’did-riot faise any serious doubt to the'prosecution Case; ' She added that the trial judge properly rejected the appellant's'defence of alibi m which he had alleged that on that iriaterial day he was riot’.at the scene of crime.' 15 Moreover, Ms. Mayunga strongly opposed the appellant's counsel argument that the trial- judge was greatly influenced in - 'I ' ■. " his decision in which he convicted the appellant based on the . ' 'f. « * pr'eyjqus allegations that confronted the appellant against the *V*v "■* '/Vf * . . / V --V -r • • , r deceased's family, including the pending criminal case before Kibondd district Court. : • f" In short, the learned State Attorney strongly and spiritedly defended the findings leading to the conviction of the appellant' by the trial court and the ultimate sentence, hence she urged us to dismiss the appeal in its entirety. Having heard the submissions from the parties, the crucial issue for the determination at this point is whether the prosecution case against the appellant was proved to the required 111!'' ' ■ standard. We wish to begin our deliberations by alluding to the settled position that in order to prove the case of murder under the provision of section 19,6 of the Penal Code the following element <--V :.1> : V>-5. - . :--V: r should be established. One, that death was caused to the deceased person; two, that death was unnatural; three, that the death was caused by an uiilsWful out or bmiission; four that ft was \ . - :16’ V the aeqused.perspn ^.(}P did the unlawful, ad;.or omission.leading to the death of the deceased; and five, that death was caused with malice aforethought, meaning that the accused intended to cause Such death or grievous harm. To appreciate the deliberation which will follow shortly, we deem it appropriate to reproduce fully the reasoning and the -■< \ 't - - - ' finding which was made and reached by the trial judge in respect of the guilt of the appellant. It is noted that in the process of evaluating the prosecution evidence and before considering the defence' evidence7the triafjudge" stated:- "I am aware that PW1 and her deceased husband survived a murder attempt just five days pridr to •> ' ! th&ihstantcrimein which the accused'was alleged • ■ ..to.have been, among the companion to several . others but that is not the case before me. And even if ) would have to insider it, the same would only. be corroborative evidence against the accused, that he had intended-to kill PW1 and her husband but on his ungjgges^/he. rearra,ng&i, andfina/fy' succeeded\ to murder DWl's. . husband’ on 15/11/2018just few days after the, first attempt. This is.because PW1 couffinot only wait, crimes to, befallen her to incriminate the accused. That means in the absence of.crimes, committed, against her. the accused is not fabricated. It does not dick a reasonable mind that a person intending to fabricate another would wait to be victimized in a crime as if he or she is aware of the nature of the crime and its degree. And if she or he will service the crime. !tjs ^ ;undisputedfact th at the deceased died brutM fihvthe presentsof PW1 and PW2y-£h'eJtw6 witnesses :were shocked and rah away under this V/orty situation, it is unexpected "that ah - eye witness'’ : :sub/?' "a: brutal killing- conedcjtiickfy memories of his or her historical enemies, quickly make a decision as who_ among them should .be fixed and irnmediateiy name him to the people who respondent to the crime, I had tinie fo observe their demeanor, they were resppndingto the questions at the examination in Chief and during cross-examination. in _a manner. that persuaded! not only me but also the two lay gentle assessors that they were, speaking^nothing but only the truth X therefore rule th a tP W l and P W2 were witness o f truth, credible and reliable- I have no any good reason, and or even cogent one for not believing these witnesses. / :fi(\d them-to have property identified the. accused person Aifredy Kwezi @ ;18 ? < ‘V AlfQOce .{ in f-qorrjpanion of another, stabbing the deceased person to death. That being said, I find that the evidence of PW1 and that of PW2 could 'r-'•^ ' even stand independent of the other evidence on record^ and either of it couid sustain conviction of the appeilant ever if it vjouid have been the only evidence pn; record provide that I wquid have warried my self of the danger to rely: on the _________J X ______ evidence of a single witness as it was heldJn the: case ofAhm ed Omari v. TheRepubUc, Criminal Appeal No. 154 of ,2995 which t quoted with approval the decision in case of AhiS Phafen v. State o f Assam 1993 AIR 1462 which held as follpws:. \ . "A conviction cat) be based on the testimony of / # ':- <:a singlerdfe%v!irtess"and%ef&isvno rule of : law dr evidence which! says to the 'contrary ’ pro vided the-sole eye witness passed He test telidbilityr) in ^basing conviction• on his testimony alone," '' Ei/enthough and asrightlyobservedby the asses$dfs/: the -evidehce'vf PW1 and :PW2’got corroborated by that ofPW3, PWSand PW6: The three witnesses supra arrived at the crime scene in the same night/ they authenticated the availability of solar light and the moon light as vyell, . so - does DW3- the accused^ own i witness,■ The identifying witnesses named^ the accused to them instahtiy to have been among the assailants. The accused disappeared from the viiiage and that is why he was not seen soon after the crime despite of being traced by \ ■ the village authority as testified by the village ■chairman PW3. The ayermejiit. of the accusfcl Wiat he was in , theAvillage, throughout is rijzt true. This, is because he.himself admitted that he was indeed traced by the local authority and th^ ppljce from the first day ofp)e:cnme^ If h e r:was realty in the^village .and^ did ..not 'commit the offence, o r the knowledge that he yvas accused and traced, one would.expect him to haVe surreadered himseif Even though, hq was not arrested in the village but in [the different District at Kibondo as rightly observed by MS Mwamvua RamadhaniJay assessor. " ., A fter ;5t:fiat :de!iberati6n;vand f!hd rhgs>' tUfe- • tri a I judge considered the'appellant's defence and disbelievecHt for being a fabricated.story., f'"' ■ ^ Admittedly,. though the trial judge dealt with the appellant's defence at a considerable length' in which he found that there was contradictions between him. and, his witnesses,;namely DVV2 20 and DW3 concerning 5 .♦ ...... ? what transpired when v - c they allegedly ^ '*\S: < ■- t, * » 7 '.•»4 *’**’J ’• ,v’ ■/; * 4’ r ■ ♦’ * V * i- responded to the alarm and who they met on the way to the scerie, and also rejected the defence of alibi, basically, he started ’ \,7 -,'y . J by disbelieving it before he embarked on the respective analysis. Particularly, at thevery beginning he stated thus: /ji/haya carefully gone through the defence ’ Evidence and dully considered it / however '•’%jlsbelieWityust‘1lke:-mfi two assessors I find • the- defence, of eyidencepfthe accused to have . been fabricated story. This is because the accused contradicted so much with his 'own I witnesses in tying to establish the alibi...". NotablyJ-after- the said evaluation'of the defence'evidence the trial judge conducted as foilows:- ‘"T therefdre concur with my two lay assessors that the ' prosecutidhcase has been proved b£ybri&)ttsdpableidoubts against1the accused . . personi:."..: v. r It is. the-vaboye: reproduced reasoning and fiijidings of the trial court that has greatly attracted the criticism from the appellant's; was fully Supported by the respondent's Republic c6unseir it:is cbrnmbn:!<rfowtedge, and 21 as acknowledged '^ :"tH^-trjaV judge In ;his'jadg‘m ehit’6ie,'VCH3j^ of:this appeal, that the prosecution side has the duty to prove the charges against an accused, person beyond any reasonable doubts? and that it is not for the accused person to establish his innocence. Additionally, the responsibility never, shift! throughout. On the other hand, while it is appreciated that the Stf r 'r“” ' ' v v monopoly of assessing the credibility of a. witness |rests on the trial court, this duty can also be exercised by the appellate court where it is demonstrated that the trial court misapprehended the evidence on record or wrongly applied the law hence coming to a wrong cbnclusioh causing miscarriage of justice. For this started see the. decisiohs Of the' Court iriJ iim a Seleniahi <§>' Paulo- & Artbther v. Thie Republic, Criminal Appeal No. |283 oi7 20i3 (uhfepdrted)',. Director of Pu&lsc Prosecutions"V: Jaffarf N fa’um e kaw B & a [1981] fX.R'149. Besides, this being the first appeal from the trial High Court, the Court is vested with power to re-appraise the jevidence and draw inferences of facts as prescribed by rule 36'(l)(a) of the i anzama court or Appear Ku!es,.yuuy (the Rules;. In determining this appeal, we intend therefore to re­ appraise the evidence on record to ascertain the findings and 'S - . conclusion of the trial court. ■ (ifc-With regard to the evidence of identification, we think it is appropriate to start by reiterating the principle enunciated in an unbroken^ chain of decisions of this Court including;^ W azin Am ani v. The Republic (supra) and Raymond Francis V. The R epublic [1994] T. L. R 100, that before a court can found cbnviction basing on Visual' identification, such' SvidenCe mii'st be Watertight so astb remove the possibility of honestyMtrftistakeri identity; In sUch Casks,th6 court is required: to consider, arfidng otitefs, the'folldwing'ftiattefs; one, the time'ifie Witness"'had the a^djse^' undef observation; two', the distance at Vv/Hsch lie observed hfrn; three, the conditions in which such observation occurred, for "ihStahcfe"'WhetHer'’’it'Jv$£ 'day time or night time, whether there was good or sGeirie; feur; Whether the Witness' knew or hacf seen the accused before or not; and ffae, all factors bri identification considered, it should also be plain’ that were’ aHy material' impediment dr discrepancies affe'titing" the' correct identification of the' accused per^dn' by: trte 23 w itness'^ seefe v. The Republic, ^Criminal Appeal No. 252 of 2010 (unreported). ^Indeed, even in a case where the identifier recognized the assailant the court should be cautious of rushing to the conclusion ^ . r * that the assailant was easily recognized- because he was well * • 1 1 * . i »•- *’ <i -i-' * *2 ^ V i t* •i u v 1* ■' '‘ i L •, ' S i , i ' ■ * • ; *V * d » ' ■ i ^ *, i * * ‘ - - • . ‘ S' * ’J '. l * • ; * ’ ’ \— tJ $ I '« ' *, \ * / ' y I- - 1 tr« i i.f , • , ». . * ‘ known to the -victim/.as. some times there may be mistake in js & K '1'-;: s-i ; I ■rV".'S.. f-f' ... identifying even a near relative. Instructively, in Ham is Hussein and Tw o O thers v. t h e Tlepublic, CrimihalAppeal No. i36 of ^009 (unreported).the Court stated that:- ‘ ; t , "We wish to stress that even In recognition cases, where such evidence may be more ‘'reiiabie ^thafr identification of a stfahgefy ’t/ear •-> •. .■^vid^/iqe: qn anc/Jtsifftens/^y.& . •.r o f paramount importance. This is because, as occasionally held, ever when the witness is purporting to recogpize someone he knows, as was the case here, mistakes in recognition of dose relatives and friends are often made." YSee. also the case of Shaban Paucji v. The Republic,,. Criminal Appeal -No. 28. of 200.1 (unreported) Having- examined the evidence in the record of .appeal, we •' , . - i think the determination of. this appeal revolves on the question whether the appellant was properly identified at the scene of crime. • ■■ , ’ ' \ -v: It isapparent from the prosecution evidence that PW1 and PW2 firmly testified that as they knew the appellant, they duly identified him at the scene of crime on the fateful date with the aid of the?solar light and moonlight and that they were some few paces from where the incident took place. On the other hand, it is on record that at that particular incident they were terrified .by such hbrrifyihg situation to the extent.of running away to the hfcigKbours for. a few minutes, Only to return l'ateV to1find that th£ Assailant's had fled and the deceased dead with the body laying ririthe ground outside the house. ' ‘ It is not clear, as no testimony was led to the effect that even under such horrifying situation and the few minutes PVV1 '•l 'I and PW2 spent at the scene could1have assisted them to properiy identify the assailants. At this juncture, it is worthy sounding the caution of the Court of appeal of Kenya in WamaSiwa arid Another vr T h e R epublic [1999] 2 EA 358 which inspired‘tfte court to d£l iberate on the question of identification and feafeh the cohclusidn In’ Tagara-^ Makohgbro^iiha'' t w o Others 'th e 25 Republfic, Criminal ^ppeaU^. 0* :.12&,vof ;^2015 u{unrepprted) specifically it was stated that: "The court should always warn itself of the dangerxpf convicting on identification evidence where the witness only sees the perpetrator of on offence ;fleetjngly and*, under ^stressful circumstances." / .. We are however aware that sometimes, depending on the circumstances of each case, even in horrifying situation the victim may surpass...the ^fear. .of, the perpetrators. ;B.ut this must be born from the evidence' on. record (see the cases of -Ha’s san iurrsa • ’’' .-! _- • / ^ • Kanenyera and Others v. The Republic [1992] T.L.R iOO and RhSJip :RUkaira V rT h e Republic, Criminal Appeal No:’ 215' of 1 ’ 1994 '(UrirepbrJ^d)'; In the iater decision the!Co5rt stated that:- "It is not always impossible to identify assailants even at nightand even where victims ■ terrified^ Thefevident& inevery case where - - ¥i§ua!Jdgnti^ is reiiedon.must he subjected to careful scrutiny, and regard being paid to all the prevailing condition and to see ifjn allthe circumstances, sure . opportunity and ■convincing,^ ability, to identify the pefs^)::qprre0y^and that eve/y reasonable... possibility 9,g f : -.error^ • has beep, dispelled." However, we are of the view that this, is not the case in the v ' appeaf at hand as there is nowhere in the evidence on record showing that even under horrifying circumstances 'and few !' > ; \ . V ' ' “ 1 minutes spent'aWne scene-before they- ran away PW l and PW2 overcoiji0%pr surpassed fear. It is also common knowledge that the reliability of identifyingwitness' must depend oh his or her dfemeanor. In the appeal at hand, it is apparent in the excerpt of the trial court's judgment reproduced above that though that court initially casted doubt on whether PW l and PW2 could properly identify the assailants under such stressful situation, the trial judge later reasoned that it was possible because they were eye witnessed to the"Tnddeht, they ’knew the appellant before, the condition was"favorable and therefore they were credible. .The Crucial’ issue thus is whether this coriclusioh is supported by the i evidence;'6b record. For our part, having thoroughly perused the evidence On record, we think the evidence of PWl, PW2 (eye witnesses), 27 PW3,' PW5" and PW6' poses much doubts with no answers. We shall demonstrate. Firstly, both PW1 and PW2 did not state ’ •>x '0 categorically whether both assailants used the panga jointly to y*'K ;1 *• *" cufitHie-deceased and on which particular part of the body since yr' i they were allegedly 5 and 3 paces closely which could have enabled’ fchdrri'to see dearly and dafifV ori 'this' issue! This is hotvvitp'sraWding 'the fact that each saW the a ls s a iia f r o n i ■'d different angle and place. Certainly, it could not'have'b’eeH possible for both assailants' to'jointly use the panga to cut the deceased^ Secondly,’while the festimony of £ w i is that she » ^ ^, ........... ^ v ’ , ., , ' , t - 1 * t-,^I «. Spent'four or five minutes to view the incideht before she 'went out crying for TieipV'PVVi stated'that she spent tert minute's and ran avvay. Thoughtheyspent different time to View the incident,' according to PW l ' when she went oQt^ she g6t her' children running to seek'heip t o ‘the neighbbuhsi' 'Unfortunately, PVV1 did “ *' - * ’ : * - not niention the name Of her childreri who siie got them’running. Sirnilarly,.-PW21 di‘d not state that'she 'm et hef mother,; P # i :4 running/ ■V ^' On cross examination PW1 stated that she raised alarm for helo when she started to ran awav from the incident. On the contrary; RW1 testified in chief that she ran away on her own .to seek help from the neighbours. On the other hand, during cross- examination PW2 stated that on that particular day she was' with / ' , - « .v, . * ; hi^-young sibling aged 16 years old but she did not mention the name. More importantly, it is not clear from the evidence on how she' niahaged to'identify the assailants closely, because'Hufirifcj cross exarninatioh she stated that' she peeped: through the vviriddw While in the kitchen'and saw the'appellant aha'Linus * 1 Ngowe and that , whfen she wanted t o ' come out, she was ttr^ten^ liy'tfcfe'a]ppyfant' : ’’ At the same time while on cross-examination PW2 stated that Linus' Ngowe also assaulted her and required her. to keep quiet. She also stated that the assailants took about ten minutes. Though this fact was stated during cross-examination, it is not clear how she was threated within the said period of ten minutes by the two 'a'sSailarits rfet'to "tai’ne“ddt-'b iit'^ ll’ mahajjefi tb 'see them from a 'different part of the mairi house. This is because 'V 86c6ndirigtb ^ < 'Sk6^'% ap''(ei^iblt: P2); it Was 'possibie for a ptersdri stationed at p o int' D (kitchen building)" to see what * , ' ,• nl *'v• _ * transpired at point A! (theVrnain housfe) ^vhere the deceased w^k 29 seated and iatter assaulted. Generally, if <we are to go by the sketch map, PW2 must have been impeded to - see what transpired at the other corner of the main house amid the alleged tfireWfe- effected by the assailants. Besides, in her evidence\in chief PW2 did hot state that shewas threatened and orderedto keep quite by. Linus tsigovve. '’ ' V Furthermore, it is not known how PW2 knew that the assailants might have spent about ten minutes to accomplish their unlawful act white shehad, already ranaway. Indeed both “ >• .. * » \ ' ' * t ■, * *t»‘ -yJ* . 'i f . i '» I " h- m* *>- .»%• ,| ■ V - •* .1| - • - f •*i i *• PW1 and PW2, did' not state how long they stayed to neighbours before they returned at the scene’in their company. Thirdly, further doubt is raised by the fact that though both PW1'and PW2 testified that they returned in the company of neighbours they did riot mention the name of any neighbour who C.I-J -'V.Y f i.7 ■ returned with then to the scene of crime. This is notvvithstanding the fact that exhibit P2 which was drawn by PW5 shows that r i among the house 6f neighbours who‘Were cldse to the ' sc^ne Sre kasindi” Godfrey,’^ ■’Lukuhkum’a." arid Dariie "Mhenyi located 6ri point E, F and G respectively. ‘ We think this was important as the ascertainment of the neighbours Whofirstly rasptihdSnt to the st&rie <even before the arrfite l:tif PW3; PW5;airid PW6 would have thrown, some light on why |if they really accompanied PW1 and PW2 they were not thje first to be inforrrrcd .of the involvement of the appellant and Ljnus Ngowe: If really the. neighbours accompanied them to t^ie scene the. infbrmattph; concerning the identification of- the assailarits could riot ’i eeii, reviaaled to PW3, PW5 and' PW6 a l^ e r' the evidence oil record. The prosecution evidence Tsi silent oh this issue, vi/e howevei- ribte frorri the record of appedl thatlCassindi Godfrey Was amorig thd witnesses whd was. listed to''appear before th& friai court to testify) but it s not known why he was n6t summoned. Fourthly, both PW1 and PW2 did not state categorically in their testimonies that they informed PW3, PW5 land: PW6 that they identified the appellant and Linus Ngowe at tHe scene of the crime. This story is only found in. the'evidence of PW3, PWS and PW6. This raises doubt on whether PW3, PW5 and PW6 were / . , 1 immeciiately 'informed by PW l, *’' PVfifr* ' ^ involvement o f the 'Appellant and his. colleagues on the' fateful Fifthly, it is noted that according to the evidence in the record of appeal, PW l and PW2 were not the only eye witnesses tip’ tfie incident at the scene of crime. It is borne from Exhibit R2 , ■ '/ rf.■ which’^vas drawn; by PW5 with the assistance of PW l and PWZ and other relatives pf the deceased, that Jovaness Godfrey who was at point J, Saw the appellant escaping from the scene of • y .., ‘ ' * • ' •..-'1 .• K'"'1 crimd'arpbiht K which is 42 meterS from point 3. It isWrortuhate tod that,” th'ough' JoVaneSs Godfrey Was' listed ambn^ ' tHe Witnessed for the prosecution' during the Committal proceedings, he was hot sunfimbned to testify.'/ Presumably, jovaness Godfrey v/buld have' helpecf the* prosecution' to explain some missing links in the evidence PW l and PW2. Concerning the identificatib'rr of appellant at the sfcene on that day.'' " ' ; ; We are aware of the position of the law* under section ► ^ * *-•«.* t■|.. ♦. ^j ,, r .*% lt... ^ , i r .. 143(1) of the Evidence Act, Cap?'6 R.E 2019 that the prosecution is not bound to summon all witnesses who witnessed the incident as what matters is not the numbers, but the relevancy and weight to be attached to the evidence of the particular witness. In Speratus Thebrsest <t> A lex V. The Re^ubSi^'Criminal Appeal Fno.' 1!35 o f 2003 (unreported) the Court stated that:-' 32 "The prosecution does not have the obligation to produce witness irrespective of consideration of their number for the evidence: has to be weighed, and not counted." However, it is also the settled law that where the prosecution or a party to the case does not summon a witness who is insa position to explain some missing-lipks in.the case, ‘-'r "•.............— ':::A ■ permits the' dduffi tb1draw some adverse inference to that party's case. In this regard^ in Kisinza Richard v. The Republic [1989] T! l.' R. i43 the Court held that:- "The prosecution is under prima facie duty to call all: material witnesses who from their • v connection with the pfo&cutioh ih question are ' .' • i ; ~,ablg,KJD ^fg0 y pn^lli.ijiaferial^g^s. witnesses are not called without sufficient . reasons the court may draw an adverse ’? inference to the prosecution." _ - 1V In the, appeal 'hand, wethink in view of'what, we have stated’ above, had the High Court after it admitted exhibit P2 considered ...the ...importance of . Kasindi ..Godfrey.?and ,Jevaness Godfrey to ihe -proseeutiori case, particularly concerning thenssue of the presence of neighbours who might have been the first to ^ * »- a 2- v - , f f * r » !* (1. • "... y* V J " ? -v- * , ‘ v. « ' ‘ '1,-* * *V arrive to the vscene anSiloie of ‘thepf' allegedly- witnessed the 33 - appellant-escap'e fronri the scene, it could have drawn an adverse inference, as we accordingly do/ since ho reasons were disclosed b y ; the prosecution for non-summoning of the respective witnesses. We hold this view because the involvement of Jpvanes in the alleged.identification of the appellant was more apparent as according to exhibit P2,on the fateful day he was in one of the room whose door faced the sitting room designated'as point N. . . . . . . * ^ '’ ^ •V - ’ , ’' ' ' ‘ ~r moreover, if we go by exhibit P2, Jovannes Godfrey and PW1 could have carrtd intocontact on the material day as poirif'N Is iocated closer to point M Where PWl slept before she come oiit p v * . i , * to the sitting room and later went to the back of the door :at point L’. Unfoiifrnately,' P'SVl' did riot state anythm’g "concerning the presence of JOvaniss Godfrey on that room and;iAlhether he also saw the1assailants before he ‘-vy;ent outsicie' ‘the' House .where the r . r decease# was assaulted to death. Fdrther;' ciccordihg to ekhibit Pi "it is the sarhe'Jovanes Godfrey vvho was at point J outside the house ^wno"allegedly'..saiX? tHe appellant running at ^oint’ K as allucled to sbbve. 34 ! Sixthly, though the trial judge held PW1 as witness of trutlp, with respect, we think this conclusion was made without careful consideration of her evidence. It is on record that PW1 did not ,1* state the truth about the status of the criminal case which faced the appellant on the allegation of assaulting her and her deceased husband, ’We say' s 6 ' because w/hiie it is settled as' per the " * ') i , , : - ■eviden'C^w record and the trial judge's finding in hiS'judgifieilt that'up'to’ tie 'tim e PWl testified at the' trial the’ case had not Been concluded) and that is why the appellant Was arrested .at Kibdhdo' District' Coliit Where he had gone: id attend the hean'ritj dh 3 i/l'I/2 0 i8 / just' t\vo weeks ’from the date of the incident, PWl testified that the case had ended and the appellant was f convicted and' sehtenced to three 'months cbriditidnal discharge in respect of assaulting the deceased accordingly.' We also note almost one' cjuarter of the PWl'S testimony direct on’ the misunderstanding' of the appellants family and the deceased family arid the allegation o f the previous assauit'whose ’case had not’ 't ) ^ ''! ^ ^ ^ ^ ^ ^^Wal'6istrlcI.'€6tiW Of fe&ori^d. 'it? is rid wdiltier that 'even in his judgrfieht the trial judge also todk Considerable tiirietio diSciiss the issue and made sdhies finding concerning: the guilty of the appellant even before he evaluated defence evidence as intimidated above. ^ : With respect, we think that was not proper as it might have influenced,his findings and therefore prejudicial to the appellant. i ■ ■■ We, do not therefore respectfully considering the judgement of the trial court agree with the learned State Attorney, that the ■- '■ '"V " 1' '' ‘ - ' •" ’• , evidence of previous allegation against the appellant which was still a Subject bf the court Case'did riot influence the trial judge in reaching the conclusion of convicting the appellants. • in the circumstances, it is not alwavs correct to conclude that in visual identification eye witnesses are perfect. Eye witness visual identification is therefore of the weakest character and most unreliable. To this end, the Court in Sham ir John v. The Republic (supra), categorically held as follows:-' Admittedly, identification in cases of this nature, where it is categorically disputed, is a : very tricky issuer There is no gainsaying 'that evidencein identification cases can..fir(ngiahffut^ miscarriage of justice. In our judgment, whenever the case ■ against an accused depends wholly’.'-pr , substantially on, the correctness of one: or more identifications of ■ i - ..«• : '"56 ...................... the accused which the defence alleges to be mistaken, the courts should warn themselves of the special need for caution before convicting the accused in reliance on the correctness. This is because it often happens that there is alwaysa possibility that a mistaken witness can be a convincing, one. Even .a number of such .witnesses can ail be ' ‘ v ‘ . ................................. ■ .. ... mistaken. . ■It is now trite law that the courts should cioseiy'examine the-circumstances in which the identification by dach 'witness was :mad&cTHe Court has [already -prescribed //? *sufficient details; the >mo$t - salient ,,,v'factors~ be considered\ These rriay be summarized as follpws: How„ long did:the witness have the. accused under observation? At what distance? In what light? Was the observation impeded in m y way, as for example by passing traffic or $ jjress.orpeople? Had the, witness ever seen the accused before? How .often? . If _only occasionally, had he. any special reason for remembering the observation and‘ the subsequent identification to the poiice?: Was there anyr materia! discrepancy^ ipefyy^en the description of %^ccusedh^iven to the police by the witnesses when first seen by .them and his actual appearance? ...finally, recognition may be more reliable than, identification of a stranger, but even when the witness is purporting to recognize someone whom he knows, the court should always, be aware that mistakes in recoghitidn df- close relatives- and friends are sometimes ” t 4 . ‘ Ml ! v made.", ....... . ................... All ih: all,'- considering the above raisied discrepancies, it-/"'111'Vi'} v.-iv.". .y inconsistences.and doubts in the evidence of PW1 and PW2 with regard to .the identification of .the •a^pellpn^at.the^qs^g-vOf crime, it- cannot- 'bd- :cbneli/ded ' with certaiihty"-that’ th e -respective witnesses are witness of truth and therefore credible as held by the trial judge amid tiie defence evidence in Which as we have exposed above raisdd ddubte on his being at the scene of crime bn the fateful date: ‘ " ' .. 'v ' •• • ' In Jarib u A bdaiia v. The RepubEic [2003] T.L.R 271 it was stated that:- Jlln:mattgi$ ofj&ntificatiohsit is not;emughr-. .■ . merely to look-at factors favouring accurate identification, equally important is the Credibility of the;:witness. The cdnditfdns fbt identification might appear idea! but that is not] a guarantee against untruthful evidence. The ability of a witness to name the offender at the earliest possible moment is in our view reassuring though not a decisive factor. [see also; M$furu ] Manypma and Two Others y. the Republic\ Criminal; Appeal No. 178 of 2007; John Gtiiikpla v. ''The Republic, Criminal Appeal No, 31 of.1999 and Yohana Dsoniz and Shija Simon The Republic, Criminal Appeal No. 114 and 115 of2009.(^i! unreported)] . ' _ Among- tfte^major'^ in his defence is that while he was on the way to where the alarm was raised,, he vy^s,;^ttackfd ^^pb;jpdudjng;rl^s|ndi Godfrey who injurecJ't3W2"B^ he and his family had to escape to the safe place fearing being harmed. The trial judge would also epnsidire^ tiiat, ;i f the appellant’ ha'cf m^nde^;!t6*,'^sccip^ definitely to an’ -unknown plac&, he coiJId"riot have gone to the Kibondo ^ a hearing of a criminal case in which’ hS'was accdsed df ^ass^uitihg the" deceased'anid PW1.;' ’We have''rid"llesiMf6ri.vtb '^ t^ : that this'was plausible 'exblanation why the appeiiant escaped from the viiiaae. On the’ contrary; with 3S respect, the trial judge basically dealt with the defence of the * Vl * • • '■. • ••“♦ U/.. *«. ^. S*. ••. « . — . *... » V * . '»* ” .i ** • v ' i1- ^, » •\• * * • « «■j '’ **.^ * •k i - •;*'> 7 - : <•*. + ’ i‘ • I V -•i appellant which raised doubt to the prosecution case on his presence at the scene of crime as if the burden of proof had shifted to him contrary to the settled position of law which he had acknowledged at;£he beginning of his judgment. With regard to the evidence of PW3, PW5 and PW6 which the trial judge held to have sufficiently supported or corroborated the evidence of PW1 and PW2, we are settled that in view of weakness we have Exposed above on insufficient proof by tfle eye witnesses to the commission of the crime, it is clear that i l k said witness cSfinot corroborate the later.' For our Dart, the evidence of PW3, PW5 and PW6 contains inconsistences and doubts which cannot make them reliable i witnesses. PW3 for instance stated that he was initially telephoned bv Linus Ngowe, one of the alleged assailants, about the incident. However, this information 4 was not disclosed by PW5 '[ t and PW6 who were' accompanied by PW3. Interestingly, hone of thfern stated at the trial that''they' tried to Contact Dhus Ngoiwe through the same means df cornmuhieatipn but failed though tfte previous com m frni^ allegedly:made fevv rriiriutes before 40 . they1arrived at the sGene/'What the v\/itnesse5:stated js' that"aft;e‘r they arrived at the scene of crime and informed of the identify and names-of the assailants, they started to trace them to their respective homes but they could be found. Moreover, as we have intimated earlier on concerning the doubt on the presence of the neighbours at the scene of crime, save for PW6 who stated that apart from the family members of the deceased, other persons who were present included the village, leaders.- Nobody among them mentioned the presence .of neighbours'a^’th6:scerte'6fcrime. ~'v ' ,r v Indeed, PW3's evidence on the arrest of the appellant is not consistent with the evidence of PW6, While PW3 stated that the appellantwas arrested at his home after sometimes, it: is a fact as per the evidence of PW6 and the appellant that he was arrested on 30th November, 2018 at Kibondo District Court. This anomaly easts doDbrori tfte c:redYbiiity'of the evldehc^ of “ ' : On- the other hand, the evidence of PW5 and exhibit P2 which he tendered at the trial is not consistent, with the evidence :•’ :'.Lv *. v' 1 - ;.! ‘ ' '.i :i .* V'i .■r' " ■iV; V' . . ,v;.'.V , of PW l and PW2. Generally, .what is contained in exhibit P2 was ■•’"CO:: -.‘VV'- :SV ” '>'A :;^f! 'b'<\ not "’'stated by •the respective witnesses as we have plainly 41 demonstrated vabfr/e. in the 'circumstances," we' Sre, settled 'th^t the evidence of PW5 cannot be of assistance to the prosecution case. Equally important, the evidence of PW6, who was the investigator of the incident did. not throw any light which could have assisted the trial court and this court to reach the. conclusion tnat it is no other person than tne appellant wno committed tne offence he is charged with. As stated above, though PW6 was among "th^ persoris Wfib arrived at th£ sceriedri fateful day, he clid'* riot explain whether he fdtirid sdme of tfie :vtiitnesses to. the crime who are1shown in exhibit P2, including jovaness"'Godfrey Who wafe ’ah important person tb'assist the' prosecution case 'as mtHrihkfcd 'aBoVer'Tfibreover, *the evidence, of* PW4 is' onfv * » t - . . r '>*‘ i 1,■ *: "V* <T< a\ \ j'*t ; "*.v supportive of the fact that the deceased !s dead and that hfc:-died ifhnaturcii"Heathy tut canridt necessary connect fji'e jnvofvement ..:J '. '■,-.1, of, the cippSifant ’'in'the corfi'ririission bf' the" offertte 'amM th'6 Weakness in the prosecution evidence: From the foregoing deliberations, while we appreciate tljie industry demonstrated by the Jearned State Attorney for the respondent Republic in defending the trial court's findings and conviction ‘ of the appellant'of the' offence of muf'der; 'we respectfully differ with her and hold that considering the evidence on record, the case for the prosecution was not proved beyond reasonable doubt. Consequently, we allow the appeal, quash conviction and set aside the sentence of death by hanging imposed on the appellant by the trial court. Ultimately, we order that unless the appellant is held for other lawful causes, he should be released from custody forthwith. DATED at KIGOM A this 15th day of June, 2022. F. L K. WAM BALI JUSTICE OF APPEAL I. p. KITUSI JUSTICE OF APPEAL P. M., KENTE JUSTICE OF APPEAL The Judgment delivered this 16th day of June, 2022 in the presence Mr. Silvester’•Damas-'Sogonriba;. learned Counsel for the Appellant and Mr. Raymond Kirnbe, learned State Attorney for the Respondent/Republic, ' ' ‘ ’ Vi‘ as a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL