CRIMINAL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM CRIMINAL APPEAL NO. 64118 OF 2024 (Arising from the Judgement of the Resident Magistrate’s Court of Kivukoni at Kinondoni (Hon. V.M. Kaseko, SRM) in Criminal Case No. 231 of 2023 dated 30th July 2024) ________________________ HUSSEIN SELEMANI @ ZOMBI…………………………..….1ST APPELLANT MOHAMED RASHID MFUJE @ MUDY FUJE……..………..2ND APPELLANT ABASI SEIFU…………………………………………………….3RD APPELLANT NICKOLAUSI MATHIAS KASWIZA @ KASUGA…………..4TH APPELLANT MUSA MABULA RUSHONA @ NGOSHA…………..………..5TH APPELLANT VERSUS REPUBLIC…………………………………………………………..RESPONDENT JUDGEMENT Date of last order: 20th December 2024 Date of Judgement: 4th February 2025 MTEMBWA, J.: This appeal stems from the decision of the Resident Magistrate’s Court of Kivukoni at Kinondoni in Criminal Case No. 231 of 2023, in which the charges of armed robbery against the Appellants and being found in possession of the property suspected to have been unlawfully obtained against the first and second Appellants contrary to sections 287A and 312 (1)(b) respectively of the Penal Code, Cap 16 RE 1 2022 were preferred. In the first count, it was alleged that the Appellants, on 25th February 2023, at Mbezi kwa Msuguli area within Ubungo District in Dar es Salaam Region, stole one TV make Samsung 42 inches valued at Tanzanian Shillings 400,000/=, a deck make Singsung valued at Tanzanian Shillings 50,000/=, a Camera make Canon valued at Tanzanian Shillings 100,000/= and cash Tanzanian Shillings 150,000/=, the properties of JANETH SEVERINE and immediately before and after threatened the owner with Machete to obtain and retain the said stolen properties. In the second count, it was alleged that, on 13th March 2023, at Mbezi kwa Msuguli area within Ubungo District in Dar es Salaam Region, the first and second Appellants were found in possession of Camera make Canon valued at Tanzanian Shillings 100,000/= a property of JANETH SEVERINE, which having regards to the circumstances was reasonably suspected of having been stolen or otherwise unlawfully obtained. Briefly, on 25th February 2023, Janeth Severine (PW2) was at home alone as her parents had traveled to somewhere. Surprisingly, around 07:00 at night, she heard a big bang, woke up, and switched on the lights to find out what was happening. She went to the sitting room and switched on the lights. When the lights were on, she saw five young boys 2 holding Machete in their hands. One of them told her to remain silent, or otherwise, she would be killed. While one of them ordered her to give them money, the other asked whether she was alone in the House. She replied that she was alone, but she did not have the money. She was then hit by Machete on her back. While two of the assailants remained guarding her, others searched the House, and as a result, a TV make Samsung 42 inches, Tanzanian Shillings 150,000/= (cash), a Deck, a Radio as well as some bedsheets which they used to carry the stolen properties. The assailants did not end there. They went to a bedroom that PW2’s parents used and stole one Camera made by Canon, and disappeared. After they had left, within three minutes, PW2 cried for help, and soon thereafter, neighbors appeared, including Eliakimu Joel (PW3). The incident took about 20 minutes, and PW2 was able to identify Hussein Seleman @ Zombi (first Appellant). She named him immediately to the neighbors who appeared to offer help on the fateful night. In the morning, the incident was reported to Gogoni Police Station, where the investigation was launched. On 1st March 2023, the first and second Appellants were arrested by PW11 in possession of a Machete and a Camera make Canon (Exhibit P7 collectively). The Appellants pleaded not guilty to the charge. Consequently, the 3 prosecution fronted thirteen (13) witnesses and tendered eight (8) exhibits. The Appellants relied on their sworn and affirmed testimonies and tendered no exhibits. Having evaluated the evidence adduced during hearing, the trial Court was satisfied that the offenses to which the Appellants were charged, were proved to the required standards in law. As such, the Appellants were convicted and sentenced to serve twenty (20) years imprisonment in the first count and three (3) years imprisonment for the first and second Appellants in the second count. The sentences were to run concurrently. Dissatisfied, the Appellants have laid before this Court the following grounds of appeal, which I quote in verbatim; FOR THE 1ST AND 2ND APPELLANTS 1. That the learned trial court erred in holding the appellants’ conviction which was predicated upon unreliable and incredible visual identification evidence of Pw2 2. That the learned trial court erred in law and fact by holding the appellants’ conviction relying on the cautioned statements (Exh P4 and P5) which were obtained illegally. 3. That the learned trial court erred in holding the 1st appellant’s conviction basing on the cautioned statement (Exh. P4) which was neither voluntarily taken nor properly admitted in court. 4. That the learned trial court erred in holding the 2nd appellant’s conviction basing on the cautioned statement (Exh. P5) while the trial within in a trial was unprocedurally conducted. 5. That the learned trial court erred in law and fact by convicting the appellants for the offence of armed Robbery and offence of being of possession of property suspected of having been stolen or 4 unlawfully acquired counts while the particulars of the offence stated in the charge sheet varies with the evidence on record. 6. That the learned trial court erred in law and fact by holding the appellants’ conviction basing on certificate of seizure (Exh P6) which resulted from the search that was conducted in violation of the law. 7. That the learned trial magistrate grossly erred in holding the appellants’ conviction without considering that the prosecution failed to prove it's case into the required standard in Criminal cases. FOR THE 3RD, 4TH AND 5TH APPELLANTS 1. That the learned trial magistrate erred in holding the appellants’ conviction without considering that visual identification evidence of Pw2 was not watertight 2. That the learned trial court erred in law and fact by failing to realize that the particulars of the offence (1st count) stated in the charge sheet varies with the evidence on record regarding with the date of the said crime and the properties alleged to be stolen. 3. That the learned trial magistrate erred in law and fact in holding the appellants’ conviction basing on the camera make canon (Exh. P7) neither Pw2 gave its description nor identified in court. 4. That the learned trial magistrate erred in holding the appellants’ conviction basing on the confession statements (Exh. P1, P2 and P3) which lacks corroboration. 5. That the learned trial court erred in law and fact to warrant a conviction without considering that the prosecution failed to prove the allegations beyond any reasonable doubt. When the matter was called before me for orders on 15th October 2024, the Appellants appeared in person while Mr. Cathbert Mbilingi, the learned State Attorney, represented the Respondent. By consent, the 5 parties agreed to argue this Appeal through written submissions. Having reviewed the records, I am satisfied that the agreed filing schedule was adhered to, which I entirely recommend. For purposes of this Appeal, the grounds of appeal for the first and second Appellant shall be referred in this Judgement as “the first set of the Petition of Appeal”. In contrast, the grounds of appeal for the third, fourth and fifth Appellants shall be referred to as “the second set of the Petition of Appeal.” When I was going through the Appellants' submissions, I noted that the fifth and seventh grounds of appeal in the first set and the second and fourth grounds of appeal in the second set were compressed and argued together. Having gone through the arguments, I felt constrained to look into the gist therein. Vigorously, the Appellants argued that the charge sheet is the foundation of the complaints against the Appellants and that the prosecution was duty-bound to bring its case within the particulars of the offense set out therein. They were fortified on this by the decision of John Leon Kimario vs. Republic, Criminal Appeal No. 105 of 2021 (unreported). The Appellants referred this Court to page 1 of the Proceedings, where it is indicated in the first count that the Appellants committed the offense on 25th February 2023. Similarly, it is stated in the second count that the offense was committed on 13th March 2023. 6 The Appellants argued further that the prosecution failed to bring witnesses to prove that the offense in the second count was committed on 13th February 2023. Further, the Appellants referred this Court to the contradictions of the prosecution witnesses, specifically on pages 11 and 14 of the typed proceedings, where PW2 testified that the incident happened on 25 th March 2023. Regarding the second count, the Appellants referred this Court to page 9 of the proceedings where PW1 testified that the first and second Appellants were arrested on 1st March 2023 at about 14:00 pm, where he witnessed the search. In addition, the same evidence was given by PW2, who clearly testified on page 12 that the first and second Appellants were arrested on 1st Mach 2023. Similarly, PW10 testified to have received the first and second Appellants and the exhibits on the same date. Lastly, the Appellant referred this Court to the testimony of PW11, who testified that, having been assigned the task on 1st March 2023, he called PW2, and thereafter, the first and second appellants were arrested. Initially, he searched their room and recovered one Machete and a Camera make Canon (Exhibit P7collectively). To fortify, the cases of DPP vs. Yusufu Mohamed Yusufu, Criminal Appeal No. 331 of 2014 (unreported) and Ryoba Mariba @ Mungare vs. Republic, Criminal Appeal No. 74 of 2003 (unreported) were cited. 7 The Appellants insisted that the accusations in the second count were not proven due to the variance in the date of the event. As such, in view of the holding in John Leon Kimario's case, the charge was supposed to be amended under section 234 of the Criminal Procedure Act, Cap 20 R.E 2022. Where that is not done, the charge would remain unproved, and the accused would be entitled to an acquittal. Otherwise, a failure of justice would occur. In response, the learned state attorney considered the argument meritless and misplaced. He further argued that the crime was committed on 25th February 2023 at midnight in the first count and on 13th March 2023 in the second count. He referred this Court to page 11 of the proceedings. At page 13 thereof, PW2 testified that the incident was reported to the police in the morning. He referred this Court to the testimonies of PW6 and PW9. He considered the discrepancies if any, mere typographical errors and implored this Court to dismiss the grounds of appeal. In addition, the learned state attorney considered the cited cases inapplicable in the circumstances of this case. In rejoinder, the Appellants insisted that the contradictions raised regarding the date of the incident between the particulars of the offence and the evidence adduced during hearing are not minor as they go to the root of the matter. As such, the Appellants should be offered the benefit 8 of doubts. As to the variance between the date of incident as per the particulars in the second count and the evidence presented, the Appellant vigorously insisted that the charge was not proved to the required standards as per the particulars, the crime was committed on 13th March 2023 while the evidence adduced during hearing indicate that the same was committed on 1st March 2023. They referred this Court to the testimonies of PW1, PW2 and PW10. In the circumstances, the charge was supposed to be amended under section 234 of the Criminal Procedure Act (supra). On the other hand, the Appellants implored this Court to expunge Exhibits P6 and P7 collectively. Based on that, the Appellants beseeched this Court, among other grounds of appeal, to set aside the conviction and sentence meted against the Appellants. Having dispassionately considered the parties' arguments, the question would be whether the charges of armed robbery against the Appellants and being found in possession of property suspected to have been unlawfully obtained against the first and second Appellants contrary to sections 287A and 312 (1)(b), respectively, of the Penal Code (supra) were proved beyond reasonable doubt. In Ahmad Omari vs. Republic, Criminal Appeal No. 154 of 2005, Court of Appeal of Tanzania at Mtwara (unreported), the Court observed that, in a 9 criminal case, the burden of proof is on the prosecution and the standard of proof is beyond reasonable doubt. This is in consonant with Section 3(2) (a) of the Evidence Act, Cap 6 RR 2022. It follows, therefore, that a person is found guilty and convicted of a criminal offense because of the strength of the prosecution evidence against him, which establishes his guilt beyond reasonable doubt (see also John Makolobela Kulwa Makolobela & Another alias Tanganyika vs. Republic (2002) TLR 296). In determining this Appeal, I shall also seek the guidance of the Court of Appeal of Tanzania in Mapambano Michael @ Mayanga vs. Republic, Criminal Appeal No. 258 of 2015, where it was observed that the first appellate Court must subject the entire evidence on record to a fresh re-evaluation to arrive at a decision that may coincide with the trial Court or may be different altogether. In this case, the Appellants, among others, complained about the discrepancies in the evidence presented to prove the accusations in the first count regarding the date of the incident and the variance between the charge and evidence regarding the date of the incident in the second count. I will thus first determine whether there were contradictions regarding the date of the incident and the evidence presented and whether they go to the root of the matter, thereby dismantling the 10 prosecution case. As prefaced before, according to the charge, the Appellants were charged in the first count for the offense of armed robbery contrary to sections 287A of the Penal Code (supra). It was alleged in the particulars of the offense that the Appellants, on 25th February 2023, at Mbezi kwa Msuguli area within Ubungo District in Dar es Salaam Region, stole one TV make Samsung 42 inches valued at Tanzanian Shillings 400,000/=, a deck make Singsung valued at Tanzanian Shillings 50,000/=, a Camera make Canon valued at Tanzanian Shillings 100,000/= and cash Tanzanian Shillings 150,000/=, the properties of JANETH SEVERINE and immediately before and after threatened the owner with Machete to obtain and retain the said stolen properties. During hearing, Janeth Severine (PW2) testified that on 25th February 2023, around 07:00 at night, she was at home alone as her parents had traveled to somewhere. Surprisingly, around 07:00 at night, she heard a big bang, woke up, and switched on the lights to find out what was happening. She went to the sitting room and switched on the lights. When the lights were on, she saw five young boys holding Machete in their hands forcing her to give them money. Having resisted the request, she was then hit by Machete on her back. While two of the assailants remained guarding her, others searched the House. As a result, 11 they stole a TV make Samsung 42 inches, Tanzanian Shillings 150,000/= (cash), a Camera make Canon, a Deck, a Radio, and some bedsheets they used to carry the stolen properties. The robbers then disappeared. PW2 testified further that after they had left, within three minutes, PW2 cried for help, and soon thereafter, neighbors appeared, including Eliakimu Joel (PW3). The incident took about 20 minutes, and PW2 was able to identify Hussein Seleman @ Zombi (first Appellant). In the morning, the incident was reported to Gogoni Police Station, where the investigation was launched. On 1st March 2023, the first and second Appellants were arrested by PW11 in possession of a Machete and a Camera make Canon (Exhibit P7 collectively). Cross-examined by the first Appellant, PW2 testified that the incident happened on 25th March 2023 at 13:00 o’clock midnight and reported the matter to the Police in the morning. Cross-examined further by the second Appellant at page 14 of the typed proceedings, PW2 insisted as follows; On 25/3/2023 at 13:00 o’clock midnight the incident occurred, there is a watch inside our house so I saw the time. I reported the matter on 25/3/2023 at 08:00 am, I don’t remember the RB number. As prefaced before, PW3 was one of the first neighbors to appear at the area of the scene, having heard cries for help from PW2. During 12 hearing, he was recorded as follows at page 16 of the typed proceedings; I know Janeth Severin as a daughter of my neighbor Severin. On 25/3/2023 at around 13:00 midnight, we heard of thieves and after a moment we woke up to give assistance to the neighbour invaded by thieves. I went to the neighbour’s house and found a girl who told us that there some men who have invaded their house braked in and stole properties (sic). According to the records, the offense of armed robbery was committed before PW2 (the complainant). A few minutes after the robbers left the scene, PW3 appeared to offer help. Other witnesses never appeared at the scene on the day of the incident, which means they were informed of what happened by PW2 and PW3. However, the two are not certain on the date of the incident. When examined in chief, PW2 (the complainant) testified that the crime was committed before her on 25th February 2023 at 07:00 at night. Cross-examined by the first and second Appellants, PW2 changed the story, this time, she testified that the incident happened on 25th March 2023 at 13:00 midnight. PW3, one of the neighbors who appeared at PW2’ House soon after the robbers left the area, testified that the crime was committed on 25th March 2023 at 13:00 midnight. According to the particulars of the offense in the first count, the offense was committed on 25th February 2023. For this reason, the Appellants maintain that there were contradictions between the date of 13 the incident as per the particulars of the offense in Charge in the first counts and the evidence adduced by PW2 and PW3. The Appellant implored this Court to find out that the contradictions on the date of the incident were not minor as they go to the root of the matter, thereby dismantling the prosecution case. On his part, the learned state attorney maintained that the offense of armed robbery was committed on 25th February 2023 and any other date as per the evidence in a mere typographical error. With respect to the learned state attorney, the contradictions pointed out by the Appellants are not minor. The question would be whether they go to the root of the matter, thereby dismantling the prosecution case regarding the first count. Indeed, it is a trite law that when witnesses' testimony contains inconsistencies and contradictions, the Court must address them, try to resolve them when possible, and decide whether the discrepancies and contradictions are only minor or whether they go to the root of the matter (see Matiku vs. Republic (1995) TLR 3). In Tafifu Hassan @ Gumbe vs. Republic, Criminal Appeal No. 436 of 2017, Court of Appeal of Tanzania at Shinyanga, the court said It is not every discrepancy in the prosecution case that will cause the prosecution case to flop. Its is only where the gist of evidence is contradictory then the prosecution case will be dismantled. 14 I understand that the contractions may result from time-lapse or due to human memory frailty. That being the case, a human being is not expected to be correct in every detail when telling his or her story. As such, discrepancies on some details considered to be minor may be overlooked and disregarded by the Court. In Gitabeka Giyaya vs. Republic (Criminal Appeal No. 44 of 2020) [2022] TZCA 830 (28 December 2022), the Court noted; Human recollection is not infallible. A witness is not expected to be right in minute details when retelling his story …. we are now comfortable to recap that as human recollection is not infallible and due to the frailty of human memory and if the discrepancies complained of are on details, the Court may overlook such discrepancies. Guided by the above, the question is whether the contractions are minor and, considering the evidence available, whether they can be overlooked. Even if they are not minor, whether this Court can resolve them without affecting other corroborative evidence on records. According to the particulars of the offense in the first count, the offense was committed on 25th February 2023 in the presence of PW2. When examined in chief, PW2 (the complainant) testified that the crime was committed before her on 25th February 2023 at 07:00 at night. Cross- examined by the first and second Appellants, PW2 changed the story, this time, she testified that the incident happened on 25th March 2023 at 13:00 15 midnight. PW3, one of the neighbors who appeared at PW2’ House soon after the robbers left the area, testified that the crime was committed on 25th March 2023 at 13:00 midnight. PW3 could have harmonized the situation had he testified that the offense was committed on 25th February 2023. However, he corroborates the testimony of PW2 during cross- examination by the first and second Appellants. The date, however, can not be traced from the particulars of the offense in the first count (the charge). In such circumstances, it is challenging to harmonize and or resolve the contradictions. In my conviction, the contradictions relating to the date or place of the event/incident cannot be considered minor; they touch the inner and central parts of the prosecution evidence. With such inconsistencies in records, the Appellants (accused by then) would not know how to defend themselves with respect to the date of the event. It is a salutary principle of the law that has gained popularity that the Charge must contain information, like the name of the offender or suspect and victim, place and date of event to enable the accused person to understand the charge he is going to face to enable him to prepare himself with his defense. Section 132 (1) of CPA insists on that. It reads as follows:- Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such 16 particulars as may be necessary for giving reasonable information as to the nature of the offence charged When the information is detailed in the particulars of the offense, it is mandatory that evidence in support thereof is laid by the prosecution during hearing. The prosecution must produce all necessary evidence to each and every allegation made therein. In Francis Fabian @ Emmanuel vs Republic (Criminal Appeal No. 261 of 2021) [2023] TZCA 17936 (12 December 2023), the Court said; ………. it is mandatory that the particulars of the offence in the charge sheet must be proved by evidence during trial. Therefore, framing a proper charge according to the dictates of law is mandatory to the prosecution. Moreover, it is a duty of the prosecution to produce all necessary evidence to each and every allegation made therein. (emphasis supplied) When the exact date of the event is disclosed in the particulars of the offense, the prosecution must lay evidence to support that the crime was indeed committed on that particular date. When there are inconsistencies on the date of the incident, advisably, the charge should be amended (see Ryoba Mariba @ Mungare vs. Republic, Criminal Appeal No. 74 of 2003 (unreported). In DPP vs. Yusufu Mohamed Yusufu, Criminal Appeal No. 331 of 2014 (unreported), the Court observed as follows; lt is always the duty of the prosecution to make sure that what is 17 contained in the particulars or statement of the offence including the dates when the offence was committed is proved and supported by the evidence and not otherwise. In this case the date of the commission of the offence in the first count is 25th February 2023. When examined in chief, PW2 (the complainant) testified that the crime was committed before her on 25th February 2023 at 07:00 at night. Cross-examined by the first and second Appellants, PW2 testified that the incident happened on 25th March 2023 at 13:00 midnight. PW3, one of the neighbors who appeared at PW2’s House soon after the robbers left the area, testified that the crime was committed on 25th March 2023 at 13:00 midnight. In such circumstances, the contractions on the date of the commission of the offense were not minor; they go to the root of the matter, thereby dismantling the prosecution case. The offense of armed robbery in the first count, therefore, was not proved to the required standards, that is, beyond reasonable doubt. That said and done, the Appellants are acquitted in the first count. Regarding the second count, the Appellants submitted that there was no witness to prove that the offense of being found with properties presumed to have been obtained illegally. As intimated above, the prosecution evidence reveal that the offense was committed on 1st March 2023 while it is indicated in the particulars of the offense in the second 18 count that the same was committed on 13th March 2023. Indeed, according to the particulars of the offence in second count, the offense was committed on 13th March 2023. According to PW11, having been assigned the duty, he called PW2 on 1st March 2023 and went together to the first Appellant’s House. PW1 testified that on 1st March 2023, he was awaken by PW11 and required him to go together and witness a search. As such, PW1 knocked the first Appellant’s House having opened the door, the first and second Appellants were arrested. The House was searched by PW11 and as a result, one machete and a Camera make Canon were seized. To that effect, a certificate of seizure (exhibit P6) was filled in and signed by PW11 and PW1. PW2 also corroborated the testimonies of PW1 and PW11. The evidence of PW1, PW2 and PW11 is corroborated by PW10. She testified that on 1st March 2023, she received two suspects (the first and second Appellants) and two exhibits (one machete and one Camera make Canon) (Exhibit P7 collectively). On the other hand, Exhibit P4 (the caution statement of the first Appellant) and Exhibit P5 (the caution statement of the second Appellant) indicate that the first and second Appellants were arrested on 1st March 2023 and that is when one machete and a Camera make Canon were seized by PW11 in the presence of PW1 and PW2. Similarly, PW8 and PW9 testified to interview the first and second 19 Appellants, respectively, soon after being arrested on 1st March 2023. From the evidence adduced, I am satisfied that there is a variance between the charge and the evidence. While the particulars of the offense in the second count indicate that the offense was committed on 13th March 2023, the prosecution evidence demonstrates that it was committed on 1st March 2023. In such circumstances, the charge cannot be said to have been proved. The prosecution was supposed to bring evidence to prove that the first and second Appellants committed the offense on the exact date as per the particulars of the offense in the second count. In Ryoba Mariba @ Mungare vs. Republic (supra), the Court observed as follows; lt is essential for the Republic which had charged Ryoba with raping one Sara Marwa on 20.10.2002 to lead evidence showing exactly that Sara was raped on that day a charge the accused was required to answer. The prosecution evidence was full of inconsistencies regarding the date in which the offense was committed. Having observed such variances, the prosecution was obliged to amend the charge under section 234 of the CPA, short of which the charge remained unproven. In Abel Masikiti vs Republic (Criminal Appeal No. 24 of 2015) [2015] TZCA 8 (24 August 2015), the Court noted; In a number of cases in the past, this Court has held that it is incumbent upon the Republic to lead evidence showing that the 20 offence was committed on the date alleged in the charge sheet, which the accused was expected and required to answer. If there is any variance or uncertainty in the dates, then the charge must be amended in terms of section 234 of the CPA. If this is not done the preferred charge will remain unproved, and the accused shall be entitled to an acquittal. Short of that a failure of justice will occur. In Mashala Njile vs. Republic Criminal Appeal No. 179 of 2014 (unreported), the Court of Appeal of Tanzania observed that a variance between what is stated in the charge sheet and the evidential facts from the prosecution's witnesses renders the charge defective (see also Baith & Another vs. Republic, Criminal Appeal No. 339 of 2013 (unreported). In light of the bolded expression, it needs no interpolation that the prosecution was supposed to amend the charge to support the evidence on record in this particular case. The omission to amend the charge not only occasioned a miscarriage of justice but rendered the prosecution's case unproven as required by law. In that stance, the confession by the Appellants cannot be used to support the charge. Considering the discrepancies and or inconsistencies in the prosecution evidence in the first count and the variances between the charge and evidence in the second count regarding the date of the commission of both offenses, I see no reason to consider other grounds 21 of appeal. Therefore, the first and second Appellants are acquitted in the second count. To that end, the Appellants are hereby acquitted on both counts. The conviction and sentences meted against the Appellants by the trial Court are hereby set aside. I order that the Appellants be immediately released from prison unless otherwise lawfully held. I order accordingly. Right of appeal explained. DATED at DAR ES SALAAM this 4th February 2025. H.S. MTEMBWA JUDGE 22