charles nkwambi nyanda vs republic 2022 tzhc 795 31 march 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (OAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CRIMINAL APPEAL NO. 143 OF 2021 CHARLES NKWAMBI NYANDA APPELLANT VERSUS > THE REPUBLIC .O^RESPONDENT (Appeal from the decision of the Ktlombero District^Courta^Ifak^ra (Hon. B.N. Mashabara, rM)) dated the 03"^^ day/Of,October/^201^ n Criminal Case.No. 86^of 2018 JUDGMENT Date of Last Orderj;25A03^2022 & Date of Judgmerit(31/03/2022 S.M. KALUNDE,3^:\ ^CHARLESAnIOA/AMBI NYANDA, the appellant herein, stood charqed-"bgfQi:e4he District Court of Kilombero at Ifakara (henceforth "the trial court") in Criminal Case No. 86 of 2018 with the offence of conspiracy to commit an offence contrary to section 389 of the Penal Code, Cap. 16 R.E. 2002 (henceforth "the Penal Code") and armed robbery contrary to section 287A (2) of th Penal Code. The particulars of the offences were that on 29*^ April, 2018 at about 02:00hrs at Ichima, Idete area within Ifakara, Kilombero District in Morogoro Region, the appellant stole several items the properties of HENRY MHESI and immediately before and after such stealing he used a bush knife, knife and a/piece of a log in \ order to obtain and retain the said properties. Th appellant pleaded not guilty hence full trial ensued. In an effort to prove the .eha^^^gainst trte appellant, the prosecution called six (6)A^v^nf^sse^ The appellant was unrepresented and ther^re^^efend^''himself under oath. The appellants trial termifqate&xlhshjmbeing convicted of both counts. He was subse^^l^vsentence^to two (2) years imprisonment for the 1^ count^ofNConspiracy^to commit an offence; and thirty (30) years [( imprisonment for armed robbery. The appellant is aggrieved by both convic^TKand^entence meted by the trial court and thus he has preferred an appeal before this Court. On the 21^ day of June, 2020 the appellant filed a Petition of Appeal eight grounds of appeal. In addition to that, on 02"^^ December 2021 he filed another severu 7\ grounds of appeal. All the grounds may be summarized into the foliowing complaints: "1. That, the learned trial magistrate grossly erred in both law and facts by wrongly invoking the doctrine ofrecent possession; 2. That, the learned trial magistrate erred/m law by convicting the appellant basecf^bq;^ contradictory testimonies of ^prosecutioQ witnesses; 3, That, there was no certificate of^'seizure^or explanation on how the stolen goods were found in possession oTWeTappeiiant; ^ 4. That, the iearned^tria^agis^ate grossly erred in by convictin^the appeiiant-based on Exhibit //' ^ \\ P3 (Caution^staten^^ whid;)ywas y admitted in evidenc^\wJthout complying with the required procedure; That, the iearned'tfiai magistrate erred in iaw in convi0:ing the^ppeiiant when the prosecution hiigd2:T2:^^^t3biish that the appellant was .^sitiveiy identified; 6. that, jthe learned trial magistrate erred in iaw and in fact by convicting the appellant based on proceedings that were marred with procedural irregularities; and 6. That, the learned trial magistrate erred in iaw by convicting the appellant based on a defective charge. Relying on the strength of the above complaints, the appellant appealed to the Court that the proceedings of the trial court be nullified, and that the conviction and sentence thereby be set aside and him be released from prison. Given that the appellant and the counsel for\ the respondents/Republic were both in Dar es Salaam, hearihg/of the appeal was conducted virtually, througli^t^ JM:iaf^;^df Tanzania Virtual Court System. At the headHgliJhe-appeJIa^^ appeared in person unrepresented. The respondent/Republic was represented by learned State Attorney M,^. Edgar^Bantulaki. At the outset Mr\Bantulaki intimated that the respondent was supporting'dS^^peal.JH^^mitted that one of the aspect used to conv^t the appellar^Was that he was found in possession of a pair of sandal^He ad'ded that during trial PWl did not state that one of the items stolen were a pair of sandals. The counsel argued that the issue of the stolen pair of sandals was raised by PW2. The said pair of sandals were also not tendered in evidence. Mr. Bantuiaki submitted further that there was no certificate of seizure or any evidence demonstrating that the pair of sandals or the items alleged to have been stolen were found in possession of the appellant. Submitting further Mr. Bantulaki argued that there was no sufficient description of the said pair of sandals in the testimony of both PWl and PW2 to indicate that the sandals wdf^the property of PWl and PWl alone. In addition to that, the^counsel added/there was evidence that the items were foun^^^noft^^efson's room. On account of the above discrepanciespth^counsel argued that it was wrong for the trial court to^ invoke the doctrine of recent possession in convicting(the appellantJHe cited the case of Paul Maduka & Othei^vs. RepuWic,/Criminal Appeal No. 110 of 2007 for an argurnfnFthat^^'^^^ the items found in possession of the appellCit^c^me^ common manufacturer, therefore it was wrong^for^^^ to invoke the doctrine of recent possession without description eliminating confusion of identification by products manufactured by the same or common manufacturer. Further to that, the counsel questions the integrity of the exhibits given that the chain of custody was not properly outlined«- According to Mr. BantulakI, once the item alleged to have been stolen are eliminated from the records, the remaining incriminating piece of evidence is the cautioned statement of the appellant (Exhibit P3). In relation to the said evidence, the counsel submitted that the exhibit was not read over to the appellant upon its admission into evidence. Relying in the case of Robinson Mwahjisi & T^ree Others vs. Republic [2003] TLR, the counsekarg.ued>that the failure to read out loud the contents of Exr^PS was sufficient to have the same expunged from the records. A In conclusion, Mr.(BantulakK^ated4hat having discredited the application of the'xibctrjnesof^ possession and expunged from the records^E)di\^ ther^was no sufficient evidence to sustain conviGtlon:^against the^appellant. The counsel sought it was superfluous to discuss the remaining grounds of appeal. I think that Mr. BantulakI, was right in not supporting the conviction of the appellant. The trial Court was satisfied that there was conspiracy to commit an offence and that there was armed robbery on the basis of the doctrine of recent possession, and it wa corroborated by the appellant's cautioned statement (Exh. P3). In its decision the trial court made a conclusion that: "As per evidence it is cieariy adduced that accused person was found in recent possession of stolen property sandals which PW2 became suspecting of him went to report to Mwinyekiti wa Kitongoji and informed PW.l and on the court they did manage to identify^^^m on 30/4/2018." From the above excerpt, jtjsxiear^that-Gonviction and sentence A of the appellant was grounded onsthe doctrine of recent possession. To elucidate the doctrine, I find\itvinstniJctive to quote a persuasive /Sk \\ ))Kenya decision in the case of decision of the CouiT\of^Appe^of Christophers.Rabut Opaka^vs, Republic Kisumu, Criminal Appeal No. 82'=^f^2004gn which while addressing the doctrine of recent possession cited the case of Isaac Ng'ang'a Kahiga alias Peter Ng'ang'a-Ka'higa vs. Republic, Criminal Appeal No. 82 of 2004 which laid the principles of the doctrine as follows: It is trite that before a court oflaw can rely on the doctrine of recent possession as a basis of conviction in a criminal case, the possessio^^ must be positively proved. In other words, there must be positive proof, first: that the property was found with the suspect, secondiy that the property is positiveiy the property of the compiainant; thirdiy, that the property was stoien from the compiainant and iastiy, that the property was recentiy stoien from the compiainant The proof as to time, as has beeq^^^d^ver^ and over again, wiii depend on the easiness^witj which the stoien property cafhmovewrom one person to the oWdiT-^^^dMe^^ prove possession there^must<^be acceptabie evidence as^o searcii^of the suspect and ff 2s^ recovery of the aiiegediy stoien property, andd^ot^view, a^discredited evidence omthe same cannotsuffice no matter from Nv V ^hoWi many witnesses. [Emphasis is mine] instant case, the prosecution case was that the appellant was found in possession of a pair of sandals allegedly to have been recently stolen from PWl. As rightly pointed out by Mr. Bantulaki, the evidence on record was not sufficient to invoke the doctrine of recent possession. First, the prosecution failed to establish that the allege :ed pair of sandals was one of the items stolen during the armed robbery; secondly, there was no evidence to suggest that the appellant was found in possession of the alleged pair of sandals. Thirdly, it was not positively established that the pair of sandals were the property of the complainant, PWl. In his^testimony, PWl did not state that the sandals were one of the iterns stolen. In addition to that he did provide any descri[^ibn">0f^the'^peculiar features distinguishing the sandals from otn^r products coming from the same manufacturer. There was also no evidence that search of the appellants X V\ ' premises was condiuGted in accordance with the required procedures and that the(items alleged^to have been stolen were found in the possessiomof the'^^llant. To the contrary, the items were allegedly in another person's room. There was no search and seizure certificate-tendered in evidence or testimony to that effect. As if that was not enough, the prosecution did not establish the chain of custody of the alleged items and how they made into the prosecution evidence and eventually in the court room T For the foregoing reasons, I agree with Mr. Bantulaki that, before the trial court, there was no sufficient evidence for the learned trial magistrate to Invoke the doctrine of recent possession in convicting and sentencing the appellant of the offence of conspiracy to commit an offence and armed robbery. The last piece of evidence relied upon %:^he triarcoiM^is the appellant's cautioned statement. This^as tendered^^ PW5 and received as Exh P.3. I entirelyyagree,.:^h--Mr. Bantulaki that the exhibit was incorrectly received imevidence. It is on record that when the exhibit was tenderedMn evidence i^was not read out loud upon its admission. Procedurall^^v^^^was wrong, and the error is incurabie. Th^lavA/^ require^that, whenever it is intended to introduce any docGTment in'^idence, it should first be cleared for admission, and ({ 'be actually\admitted in evidence, before it can be read out in court/^l^e:is^ long list of authorities to this end, including the case of Robinson MwanjisI and Three Others (supra), Walii Abdallah KIbuta and Two Others v. The Republic, Criminal Appeal No. 181 of 2006, Kurubone Bagirigwa and Three Others v.The Republic, Criminal Appeal No. 132 of 2015, Lack s/ 10 Kilinganiv. The Republic, Criminal Appeal No. 405 of 2015 Issa Hassan Ukiv. The Republic, Criminal Appeal No. 129 of 2017 and Kassim Salum v. The Republic, Criminal Appeal No. 186 of 2018 (All unreported)). In the instant case, although the appellants cautioned statement (Exh. P3) was admitted withou£>objectio^ the appellant the trial court omitted to read, over ^the coijtents of the exhibit to enable the appellant ta.understand-and make a meaningful ^X ^ defence. I am therefore satisfied^that the omission was fatal as It occasioned a miscarriage^ of justice^to ^e appellant. Consequently, I expunge Exhibit P73/rpmJhe records. Having^discreditedhow the doctrine of recent possession was invok^ and^t^ere^expunged Exhibit P.3, I wholly agree with Mr. BantulakL that ythe remaining oral evidence of the six prosecution witnesses is insufficient to sustain the conviction and sentence against the appellant. I say so because there is no settling evidence on record to arrive at a conclusion that the appellant was responsible for the robbery let alone that he had conspired with any oth 11 person. It is on record that none of the prosecution witnesses gave a detailed description of the items alleged to have been stolen or give an account of the contents of the expunged documentary exhibit. None of the prosecution witnesses sufficiently established that the items alleged to have been stolen were found in the possession of the appellant. I accordingly allow the appeal, qua^^^heWnvPcJions on two counts of conspiracy to commit-^ii^offen^^ robbery against the appellant, imposed on the appellant and order that the^ppeir^f be released from prison forthwith, unless he'l^bein^hd^or some other lawful cause. Order accordingly. DATEdMdATI ES salaam this day of MARCH,2022. OF 'S.M. KALUNDE o (j :y :z: JUDGE 5/ -x. 12