20151006 TZHC Mwanza

-9.1-. IN THE. HIGH. COURT OF MWANZA AT M\NANZA. CRIMINAL APPEAL NUMBER 33 OF 2015 (Original Criminal Case Number 116 of 2013 Of The District Court of Ta rime District at Tari me, Before Odira - Rm) JAMES RVOBA WAIG' ARI ..._................ ;.............. APPELANT VERSUS . THE REPUBLIC ............. ;............................. RESPONDENT JUDGMENT 1..0 1.10.2015 & 6.10.2015 MATUPAJ. Before the district court of Tarime District at Tarime, the appellant was charged with three counts of the offence of malicious damage to property, contrary to section 326 of the P~nal Code. The facts of this case are brief indeed. It would appear that three complainants herein one Laurenti Nyambrangeti PWl, John Johannes Nyangige PVV4, Mrimi Masaitte PWS AND another" one John Wangubo_ had farms. at a place known as Nyansisine, Ng'ereng'ere villageTarime . . ·. . District. They planted trees and maize in their farms. It was not seriously Q .O disputed that on the 6th of Oc.tober, 2012 when labourer were weeding t_he crops, a group of people armed- with machetes invaded them, 1 .. ·-- -. - . ·--. ·. :...: ~92~ chased them from the farms and st0rted to cut down the maize crops. Initially a small group of about 20 people invaded the farm. When they had Threatened the labourers who were at the time weeding in the farm of Laurenti Nyabrangeti and made them retreat from the Shamba. The number of the invader increased to about 500. These cut the maize down wand when they were finished with the Shamba of Laurenti, they proceeded to cut maize· and trees in the farms of the oth~r complainants. In the meantime, the watchman cum Shamba boy of the first complainant (Laurenti Nyabrangeti) called him to inform_ what wa·s happening at the farm. Laurenti sought the help of the police who jO moved swiftly moved to the locus in quo. They four:id already the maize plants in the farm as well as some trees had been cut down. It is alleged that the appellant here in was identified as one of the persons who led the invaders and was giving orders and directives to them. He was arrested, charged and was convicted of all the three counts of malicious damage to property. Aggrieved by the decision of the District Court, he has appealed· to this Court on the following grounds- 1. "That the trial magistrate erred in fact and in law for neglecting to ··consider. the appellant's .defence of alibi which was . well . corroborated by other defence 20 witnesses and a travemng document bus ticket and a 2 -q3- hospital sic sheet document for his mother who ·admitted at Sekou-toure hospital Mwanza was tendered before the court by the appellant in order ~o prove his defence. Thus the appellant was absent at the viliage and Tarime District in general at the material date and time in which the alleged crime is said to have been committed by a group of people 2. That the trial magistrate erred in law and fact. to rely . . on·. the issue of identification of the appellant . by ( pro·secution witnesses at the scene of crime while the 1() terms and conditions of identification was not met the criteria aw the style of dressing and type of w~apon held on the said scenario 3. The appellant was wrongly joined in this case as he us an innocent person who did not participate in the matter .. 4. That both prosecution w.itnesses were (sic) not · identify and see the appellant at the scene of crirne. 5. That this case was planted upon the appellant for the interest of PW1 who always proposed to take over his 20 land and he proposed to sell land to him . but he refused. 6. That the prosecution case was not proved beyond reasonable doubt" When this·. appeal came up for hearing,_ the appellant appeared . himself in person and the Republic was represented by Ms Ajuaye 3 J I ~q4~ Bilishanga, learned Senior State Attorney. The appellant was reminded of his gr6unds of appeal in Kiswahili, he adopted them. He proceeded to expound on them a great deal. He said that this charge was an epitome of clan acrimony between ~he Wakira, the complainant's clan and the Wanchori, his own clan. The for_mer were determined to dispossess the later of their land at the village he called Jikongore. He also contended that the witnesses were just fetched to frame him, as they were not at all known to him for the whole of his life. He has never had any red shirt. He repeated his main jLQ ground of appeal on defence of alibi, _that at the time of the incident he was not at home a_s he was nursing his sick mother at Sekou -Toure hospital. In reply, the learned senior state attorney submitted that _in this case the cogent evidence of Identification is unshakable. The appellant was identified by four witnesses PWl, PW2 and PW3 &PWS, whose evidence was so consistent - They ·identified him by name, attire as well as the wec1pon he had at that incident. That evidence cannot be a·ssailed with ease. On_ the question of the red shirt,' that was not raised anywhere during trial. ·4 I ) -95- She subrnitted tha·_t tl1e fact that they had a conversation at '.J . . the scene and that he was mentioned to the police immediately the incident was happening, lends credence to the credibility of the prosecution witnesses. We have given a serious consideration_ to the grounds of the appeal. This appeal evolves around the identification of the ' appellant and his defence of alibi. On his d~fence of alibi it is trite law that what the appellant had to do was only to bore a hole of doubt on th~ case for the prosecutio~. In the present case therefore, all that the court was supposed to do was to weigh all ,jQ the evidence including the alibi- and see if there is a doubt in the prosecution case. I l:)nderstand that the court was supposed tq weigh the prosecution case together with the evidence and see if it was consistent with the claim that the appellant was at the scene of the crime. That was carefully done by the c_ourt. The trial court considered the timelines of the appellant's stay · : in Mwanza, together with that of Identificatron. of the appellant by witnesses. He was satisfied · that on the authority of Venarut Mapunda and Anot~er Versus the Republic Criminal appeal · number 16 of 2002 where the Court Of Appeal held that where 20 · the defence of alibi is raised, and the prosecution witnesses :;. identify the accused conclusively -96- at the scene of crime, the defence of alibi is mutually ·exclusive. In dealing with the Identification one has to appreci·ate the overtones in the . description of the numbers. ·Almost every. ·witness came with the same estimation of the number of invaders; who twenty people in the first group and five. hundred in the second, with exact estimation by every witness. This brings us to a doubt as to the level of common mathematical intelligence possessed by these witnesses which would by far _outwit _even very scholarly persons. I am afraid that the authorship of this number could as j/f) well be one centred, the rest were just parroting.· On the other hand I tend to agree with. the learned Senior State Attorney that, under the circumstances of this case and the . . length of timelines of the alibi, the claimed absence for two months . . to Mwanza could not prevent the appellant from coming back to Tarime for a few hours and travel again out from Tarime after accomplishment of any mission like the present one. After ·all here in court he conceded that there is that acrimony between . the Wanchori and Wakira, which is very . consistent with · this offence. I am satisfied· therefore-that, ~n the present case the 2~0 · 6 -9?~· i __.··"i,. : ,_,) defence· of alibi and identification were mutually exclusive, alibi . I. .. ,r··.:_..-- •, gave way to identification. The person who was seen and identified was the appellant and even if he travelled as he claims, timelines could not prevent · him fr~m being present at the scene. In the result this appeal. fails, it is dismissed in its entirety. 7 . _. ·--· . - Date: 6/10/2015 Coram: Hon. S.B.M.G. Matupa, J Appellant: Present in person Respondent: MaryHyasinta - State Attorney for the. Republic B/C: Shida. MaryHyasinta _ State Attorney: This appeal is coming up for judgment the appellant is present. We already for the Appeal. . £ZP(M~-·_o;n_ S. B~,M .'G:i\71atu pa Judge 8 . ___ ,.__ - . . ..