George Kayanda v

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

MOROGORO SUB REGISTRY

AT MOROGORO CRIMINAL APPEAL NO. 30573 OF 2024 (Originated from Criminal Case No.117 of 2023 in the District Court of Kilombero at Ifakara) GEORGE KAYANDA….……….…………………………..…………..………. APPELLANT

VERSUS THE REPUBLIC …………………………………………….……………….. RESPONDENT

JUDGEMENT 24/03/2025 & 27/03/2025 KINYAKA, J.: George Kayanda, the appellant herein, was charged before the District Court of Kilombero at Ifakara hereinafter the “trial court”, with the offence of Armed Robbery contrary to section 287A of the Penal Code Cap. 16 R.E. 2022 hereinafter the “Penal Code”. After a full trial, the appellant was convicted and sentenced to a term of thirty years’ imprisonment. According to particulars of the charge, on 07/09/2023, at Nyamwezi Village, Kiberege Ward, Mang’ula Division within the District of Kilombero in Morogoro Region, the appellant stole one mobile phone make TECNO POP2 valued at TZS 180,000 the property of one Subira Athumani. It was further 1 alleged that immediately before or after such stealing, he threatened the said Subira Athumani by using a panga, in order to obtain and retain the said property. The appellant denied the allegations. In support of its case against the appellant, the prosecution had five witnesses whose evidence, in brief, was that on the fateful night at about 23:00 hours, Subira Athumani (PW1 or the victim), accompanied by Agness and Rehema, was at Kiogona Place having a meal. The appellant approached them and attempted to seduce Rehema, who resisted his advances. During their time there, PW1’s phone rang, and as she was taking it from her purse, the appellant suddenly snatched it from her. PW1 struggled to

save her phone, but when the appellant realized he was being overpowered, he drew a machete and threatened to harm her or anyone who will intervene. The appellant ultimately succeeded in taking the phone and stated that Rehema will repay the phone as she had ended their relationship. PW2, Kassian Thomas Mbenda who saw the appellant taking the phone from PW1 and threatening the ladies with machete, tried to convince the appellant to return the said phone to the victim but his efforts proved futile. The matter was reported to the police force and the appellant was eventually arrested by PW3, F3302 SGT Thobias in the presence of PW4, Mariam Kiberege, the 2 street chairperson. According to PW3, the appellant was found in possession of a machete during the time of his arrest. As such, he seized the weapon and completed the certificate of seizure. The certificate of seizure and the machete were admitted as Exhibit “X1” and Exhibit “X2” respectively. PW5, G3328 D/ CPL Mauma, the detective police, interrogated the appellant. He tendered the caution statement which was admitted as Exhibit “X3”. The appellant on the other hand denied having been involved in the commission of the charged offence. The trial Magistrate, having considered the evidence before him, found that the charge against the appellant had been proved to the required standards and he accordingly went on to convict and

sentence him. Dissatisfied with the decision of the trial court, the appellant appealed to this Court raising eight grounds as reproduced hereunder: 1. That the learned trial magistrate erred in law and fact in convicting the appellant by failing to draw an adverse inference on the prosecution for failure to summon a material witness (Rehema) who was source of fracas at the locus at locus in quo in order to prove the veracity of PW1 3 allegation and the watchman who was alleged threaten by the appellant when tried to follow him; 2. That the learned trial magistrate erred in law and fact to convict and sentence the appellant when misdirected himself in evaluating evidence of visual identification against appellant as it raises doubt as was questionable on the following reasons: i. Victim when giving her testimony stated that the appellant was not stranger to him but when crossed by court she stated that she saw him for first time on the night of incident; ii. Victim testified that she identified the appellant at the police station after being called for identification but in the record there is no evidence of identification parade adduced before the trial court; and iii. No proper description of the appellant was given by the victim nor time spent during fracas enabling visual identification.

3. That, the learned trial magistrate erred in law and fact to convict and sentence the appellant based on incredible, untruthful and unreliable evidence of PW1; 4 4. That the learned trial magistrate erred in law and fact to convict and sentence the appellant based on exhibit X3 (caution statement) which was retracted and repudiated and the statement rendered in evidence shows that the appellant was not cautioned properly about the law he was alleged to have contravened and the possible punishment for such violation; 5. That the learned trial magistrate erred in law and fact in failing to draw adverse inference against the prosecution on its failure to maintain chain of custody of the alleged machete (Exhibit X2) which is on violation of the law (PGO No. 229); 6. That the learned trial magistrate erred in law and fact to convict and sentence the appellant in a case where the ownership of the alleged stolen property was not proved as there was no any oral evidence from other person to prove that the victim on the date of alleged incidence was having the alleged phone or any receipt of the alleged phone; 7. That the learned trial magistrate erred in law and fact to convict and sentence the appellant based on PW2’s evidence while there was no Airtel sim card alleged to be retrieved by him from the appellant tendered in court to solidify his evidence; and 5 8. That the learned

trial magistrate erred in law and in fact to draw adverse inference on the prosecution on its failure to find that the prosecution failed to prove his evidence. On the 24th March 2025 when the appeal was called on for hearing, Mr. Shaban Kabelwa appeared for the respondent while the appellant appeared in person without legal representation. Upon being invited to argue his appeal, the appellant urged the Court to find his grounds of appeal merited as they are based on law. On that regard, he prayed for the Court to allow the appeal so that he be set free. On his part, Mr. Kabelwa supported the appellant’s conviction and sentence imposed on him by the trial court. Responding in respect of the first ground, the learned state attorney argued that Rehema was not a material witness as she would have repeated what was testified by PW1 and PW2. To support his stance, he referred this Court to the decision of Court of Appeal in the case of George Jonas Lesilwa v. R. (2024) TANZLII TZCA 269. He therefore urged the Court to dismiss the first ground. 6 As for the complaints on the second ground, the learned state attorney submitted that the appellant was properly identified by PW1 at the crime scene. According to him, the fact that the appellant was a stranger to PW1 and failure to conduct an identification parade for PW1 to identify the appellant does not negate the fact that it was the

appellant who committed the offence because PW2 who was an independent witness was able to identify the appellant as reflected on pages 9 and 33 of the proceedings. He thus implored the Court to dismiss the second ground of appeal. Against the third ground, Mr. Kabelwa urged that PW1’s evidence has weight and could support conviction against the appellant. He put his reliance on the case of Rashid Ally Kimage v. R. (2024) TZCA 490 in which the Court of Appeal cited with approval its decision in the case of Shabani Daudi v. R., Criminal Appeal No. 28 of 2001 and insisted that PW1 is credible witness and her evidence deserves to be given weight. He therefore prayed for dismissal of the third ground. In reply to the fourth ground, the learned state attorney admitted that Exhibit X3 does not show the provisions of the law that the appellant contravened. As for him, the absence of such provisions did not deny the appellant his rights during the procurement of Exhibit X3. He demonstrated 7 further that the appellant ought to have raised the anomaly before the trial court when the caution statement was sought to be tendered in court. To add weight on his argument, he cited the case of Joel Mwangambako v. R. (2020) TANZLII TZCA 1880. He submitted further that the issue of retracted and repudiated caution statement was answered by the trial court on page 28 of the proceedings where upon

the appellant’s objection, the trial court made an inquiry and was satisfied that the appellant’s objection had no merit. Basing on the case decision in the case of Hussein Malulu @ Hussein & Others v. R. (2023) TANZLII TZCA 17639, Mr. Kabelwa argued that the confession statement was weighty and was taken according to the requirements of the law. On strength of his submission, he prayed for dismissal of the fourth ground of appeal. Responding to the fifth ground, the learned state attorney conceded to the fact that the chain of custody of the Exhibit X2 was broken. It was however his averment that the flaw did not affect its weight as the same could not be easily tempered with or changed. He urged the Court to read the evidence of PW3 and PW4 who identified the exhibit. Mr. Kabelwa cited the case of 8 Joseph Leonard Manyota v. R. (2017) TANZLII TZCA 260 and prayed for the Court to give weight to Exhibit X2. Nonetheless, it was his opinion that in case the Court finds that the exhibit has no weight, the offence can still be proved against the appellant even without the weapon be tendered in Court as held by the Court of Appeal in the case of Flano Alphonce Masalu @ Singu v. R. (2020) TANZLII TZCA 197. On that regard, he supported the trial court’s findings and implored the court to dismiss the fifth ground of appeal. Against the sixth ground, he contended that the evidence of

PW1 and PW2 clearly establish that the appellant stole the victim’s phone. He referred this Court to the testimony of PW2 that he found the appellant with PW1’s mobile phone as reflected on page 9 of the proceedings. On that basis, the state counsel prayed for dismissal of the sixth ground. On the seventh ground, Mr. Kabelwa submitted that the evidence of PW2 on the airtel line was not challenged through cross examination and thus it remained intact. To support his position, he relied on the decision of the case of Nyerere Nyegue v. R. (2012) TANZLII TZCA 103 where the Court of Appeal held that failure to cross examine on important matters is tantamount 9 to admission of the evidence. He highlighted that the appellant did not deny that he gave PW2 the airtel line to take it to PW1. He cited the case of Flano Alphone Masalu @ Singu (supra) and argued further that failure to tender a stolen property does not mean that the incident did not happen. Due to such state of affairs, he urged the court to dismiss the ground. As for the complaint on the last ground, the learned state attorney submitted that, the evidence of PW1 and PW2 proved theft and the of use of weapon. He added that the evidence of PW2 clearly established how he identified the appellant on the date of incident. According to him, the offence against the appellant was sufficiently proven by the prosecution. In the end,

the learned counsel urged the Court to dismiss the appeal and to find that the conviction and sentence imposed on the accused were proper. On his rejoinder, the appellant argued that PW1 said that she was with other people but they were not presented to court to testify on the incident. He submitted further that PW2 testified to have been given airtel line but the same was not presented to Court and that PW1 testified that it was the first time to testify falsely in court. 10 Upon closure of the submissions by the parties, I am enjoined to determine whether the present appeal is merited. I will determine the grounds of appeal in the manner they have been raised and submitted upon by the parties. The complaint in the first ground is that the conviction was entered by the trial court despite the prosecution’s failure to present Rehema who, according to the appellant, was a material witness. I am alive to the rule that the prosecution must call all material witnesses, failure of which, entitles the court to draw an adverse inference. See the decision in Azizi Abdallah v. Republic, Criminal Appeal No. 100 of 190 [1991] TZCA 46 (16th May, 1991). The question now is whether Rehema was a witness who possessed information necessary to the case which could not be obtained from other witnesses so as to make her a material witness. My reading of the record reveal, through the evidence of

PW1 on page 7 and Exhibit P3 on page 3, that Rehema was the lady who refused to have sexual intercourse with the appellant upon the latter’s request. According to the evidence of PW1 and Exhibit X3, Rehema was present at the crime scene. The incident was witnessed by both PW1 who is the victim and PW2 who sat at the same place waiting for his meal. 11 From the evidence on record, I am of the position that Rehema was not a material witness in the criminal case against the appellant. The victim whose alleged mobile phone was taken testified as PW2. Her evidence was corroborated by PW2, the eye witness of the crime. I agree with Mr. Kabelwa that even if Rehema would be summoned to testify, her evidence would not have been different from that of PW1 and PW2 in an attempt to prove the offence of Armed Robbery. Therefore, I dismiss the first ground for lack of merit. The attack on the decision of the trial court in the second ground of appeal is on the trial court’s failure to properly evaluate the evidence on visual identification. I agree with the appellant’s item (i) of the second ground that PW1 testified that the appellant was known to her prior to the date of the incident and later on that it was her first time to see the appellant on the date of the incident as reflected on page 8 of the proceedings. However, I find that the two different versions of the evidence of PW1 alone

does not eliminate the fact that PW1 identified the appellant on the date of the incident. 12 I also agree that no identification parade was conducted for the victim to identify the appellant at the police station the subject of the complaint in item (ii) of the second ground. However, not only PW1 who testified on identifying the appellant, but also PW2. PW2’s testimony as reflected on page 9 of the proceedings was that he saw the appellant on the date of the incident being at the place with the appellant, PW1 and the other ladies. PW2 added that he knew the appellant as he was staying with him at TAZARA quarters as his and the appellant’s father worked together. In such circumstance, conducting an identification parade was not necessary. The complaint in item (iii) of the second ground is unmerited. On page 7 of the proceedings, PW1 testified that she identified the appellant because there was electricity bulb and had conversation with him for quite long. Not only PW1 who was able to identify the appellant, PW2 who knew the appellant before the incident, identified the appellant at the crime scene. Moreover, page 2 through to 3 of the appellant’s caution statement which was admitted in evidence as Exhibit X3 evidences the appellant’s presence at the crime scene on the fateful date upon the appellant’s own admission. 13 Based on the above findings, I hold that the appellant

was properly identified at the crime scene and I do not find any element of mistaken identification. I do not find merit in the second ground of appeal and I dismiss the same. The appellant faults the decision of the trial court in the third ground for its reliance in the evidence of PW1 which was incredible, untruthful and unreliable. Indeed, the evidence of PW1 manifest contradictions as reflected on page 8 of the proceedings where she testified that she knew the appellant prior to the incident and later on, during cross examination, she stated to have seen the appellant for the first time on the night of the incident. PW1 further testified on the same page that it was her first time to testify before the court on false evidence. The record does not reveal the false evidence adduced by PW1. However, according to the record, and considering the testimonies of PW2 and Exhibit X3 the false evidence appearing on the record is PW1’s testimony that he knew the appellant before the incident. Irrespective of the conclusion, I find PW1 unreliable witness. I accordingly accord her evidence with less weight. 14 The route I have taken is supported by the decisions in Lusungu Duwe v. R, Criminal Appeal No. 76 of 2014 (Unreported) and Sahoba Benjuda v. The Republic, Criminal Appeal No. 96 of 1989. For instance, in of Sahoba Benjuda (supra) it was held that: "Contradiction in the evidence

of witnesses affects the credibility of the witness and unless the contradiction can be ignored as being minor and immaterial the court will normally not act on the evidence of such witness touching on the particular point unless it is supported by some other evidence.” Despite my above conclusion, I do not find the trial court’s conviction erroneous. The reason for such finding is based on the evidence adduced by the prosecution at the trial, including that of PW2 and Exhibit X3, which establish that it was the appellant who snatched PW1’s mobile phone on the fateful date at the crime scene, and threatened the victim with a machete in order to retain the mobile phone. Considering the testimony of PW2 and Exhibit X3, I find that the evidence on record justified conviction of the appellant despite the inconsistency in the evidence of PW1 highlighted above. 15 The fourth ground attacks the trial court for relying on Exhibit X3 which was retracted and repudiated by the appellant. The appellant complains that he was not properly cautioned on the law he contravened and the possible punishment for such violation. I have read the record of the trial court inclusive of the Exhibit X3, the caution statement. Indeed, Exhibit X3 does not indicate the provision of the law the appellant had contravened and its possible punishment. However, the offence that the appellant was accused of, was

indicated. I hold that failure to cite the position of the law in exhibit X3 and the absence of the possible punishment in the caution statement, is not fatal. I hold further that the noncitation of the charging provision did not prejudice the appellant considering that the offence was clearly stated in the Swahili language understood by the appellant. I have also noted from the record of the trial court that the appellant objected to the admission of the caution statement on the ground that he was not interrogated or sign the statement but gave only his personal particulars. The trial court admitted the statement as Exhibit X3 upon its satisfaction after conducting inquiry, that the caution statement was properly procured. 16 Upon such a finding by the trial court, it was open for the appellant to include in the present appeal a ground on impropriety, if any, committed by the trial court in the admission of Exhibit X3. However, no such ground has been raised. Again, my reading of Exhibit X3 reveal that it includes the appellant’s personal particulars and other information which could not be within the knowledge of PW6, the police detective. I hold that Exhibit X3 was properly admitted by the trial court. The fourth ground of appeal is dismissed for lack of merit. I agree with the appellant in his fifth ground and Mr. Kabelwa in his submission that the chain of custody of the

machete admitted in evidence as Exhibit X2, was broken. My holding is based on the fact that the prosecution evidence does not demonstrate the movement and storage of Exhibit X2 since it was seized from the appellant until it was tendered in evidence before the trial court. Despite the chain of custody being broken, I find that the nature of the machete could not easily be tempered with. The testimonies of PW3 and PW4 on pages 16 and 18 of the proceedings, respectively reveal that both witnesses identified Exhibit X2 as the machete found with the appellant through its iron handle. Further, Exhibit X1, the certificate of seizure prove 17 that the machete was found with the appellant. Additionally, Exhibit X3 is another proof through the appellant that he was found with a machete. With those observations, I dismiss the fifth ground for lack of merit. The sixth ground attacks the decision of the trial court to convict the appellant in absence of proof of ownership of the stolen mobile phone, receipt, or possession of the same on the date of alleged incident. In reading the evidence adduced by prosecution witnesses, particularly the testimony of PW2 on page 9 of the proceedings and the statement of the appellant through Exhibit X3, I find the evidences prove that the appellant took the victim’s mobile phone make TECNO POP2. It is evident that the aforesaid evidence prove the fact

that the victim was the in possession of the said phone. I hasten to hold that ownership of the mobile phone was proven regardless of the absence of the receipt. In my view, it is not in every case that the tendering of receipt will be relevant in proving ownership of a stolen property especially in the circumstances of this case where the testimonies adduced by prosecution witnesses bear out that the property was in possession of the victim. Thus, the sixth ground is dismissed for lack of merit. 18 The trial court is faulted in the seventh ground for basing on the evidence of PW2 despite the prosecution’s failure to tender the airtel sim card to support PW2’s evidence. Indeed, the record reveal that the airtel sim card was not tendered in court. However, that alone does not eliminate the fact that the appellant stole a mobile phone in possession of the victim that was sufficiently proven by PW2 and the appellant’s statement through Exhibit X3. I hold that non-production of the airtel sim card in court, did not affect the prosecution case against the appellant. I hold further that the trial court was correct to enter conviction on the available evidence despite non-production of the airtel sim card by the prosecution. I dismiss the seventh ground for lack of merit. The eight ground is a complaint against the trial court on its failure to draw adverse inference on the

prosecution for the alleged failure by the prosecution to prove its case. At the trial court, the appellant was charged with the offence of Armed Robbery contrary to section 287A of the Penal Code. Under section 287A of the Penal Code, it was required of the prosecution to prove that the appellant 19 stole the mobile phone and at or immediately before or after such stealing, he threatened to use violence in order to retain the mobile phone. It was proven at the trial through the evidence of PW2 and Exhibit X3 that the appellant stole mobile phone make TECNO POP2 from the victim (PW1) and immediately upon such stealing, threatened the victim and her friend with a machete in order to retain the mobile phone. From the above evidence, I do not find any reason to fault the decision of the trial court in its holding that the prosecution proved the offence beyond reasonable doubt. In view of the above analysis, I hold that the appellant’s appeal lacks merit and is hereby dismissed. I uphold the decision of the trial court in its entirety. It is so ordered. Right of appeal to the Court of Appeal fully explained. DATED at MOROGORO this 27th day of March 2025. H. A. KINYAKA

JUDGE 27/03/2025 20