20190628 TZHC Mwanza2

I I "'-.. lN THE HIGH COURT OF TANZANIA. I • I •• ll\l THE DISTRKT REGISTRY l

AT MWANZA I He. CRIMINAL APPEALINo. 266 OF 201a I (Original crin1inal case No. 144 of 2017, D[strict Court of Musoma at Musoma) MAFUNYIRO KAYERE@ NYAMANDA .......... L.: I ......................: .................. APPELLANT

VERSUS THE REPUBLIC ......................................... :...... !. ....................................... RESPONDEN1'

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REASONS FOR DECISION 8/5/2019 & 28/06/2019 I G. J. Mdemu, J; I I 1 On the 8t 11 of May, 2019 .l heard the Appellant and the Respondent Rep.ublic submitting on the four grounds of appeal mkd by the Appellant. They all observed . I that there was no cogent evidence of visual :identification to connect the Appellant I . r with robbery committed on 15 th day of April, 2015. I was satisfied and allowed the appeal by ·quashing conviction and set asid~ the sentence of thirty (30) years and compensation order thereto and ordered feleased of the Appellant. I however reserved my reasons for the decision, which Ij hereby deliver. I Background to the alleged robbery is ~s follows. On the 15 th of April, 2016 at Kiara "B" area in Musoma Municipality, in thb night, the Appellant stole one mobile phone and cash Tanzania shilling~ 10,000/==·~he property of Segenya Mtwale, and in the course of retaining such properties, stone~ I the said Segenya Mtwale. In the material night, Segenya Mtwaie I and Gabriel Kaitira PW1 and PW3 respectively while asleep got invaded by bal1dits who b;·oke the door ·and entered inside. While there, tool< a handbag of PWJ ~ogcther with a mobile phone (TECNO) ,.. --= lb ;;;;s..::.uz: I . -.. ,,. I . I ai1d 10,000/=. PWJ identified the Appellant bY. the aid of moonlight and also the Appellant is the one who stoned him info hi~ ITJout.11. He sustained injury.

PWl reported t-J-ie matter at Musoma Centr~l Police s ~tion and given a PF3 for treatment. . 1 The Appcl'lant was arrested, though denied, got convicted and _sentenced to thirty_ (30) yecc1rs. imjJ1~iscH1m~nt. The trial Court alsJ ord;re.d .a compensation of Tshs. · 40,000/= ic;r the stolen property and Tshs. 2,0;00,000/= f~r the injuries sustained. This \ivas on 15 th of August, 201£3. • I Aggrieved, a petition of appeal containing five grounds of appeal was filed by I • tbe Appellant. 'l'he main complaint in those five· grounds of appeal is one, that the evidence of visual identification is weak The Jppeal came for hearing on the 8 th of May, 2019 in ·which the Appellzmt fended in J!erson and the. Resporident Republic I I · had the service of Ms Maryasinta Lazaro, learned State Attorney. · At the hearing, the appellant had nothiJ useful to add save for the grounds of appeal which he prayed to be adopted. It is on/ those grounds ·of appeal he urged me to allow the appeal as the whole case appeared to be fabricated. I j Ms Maryasinta Lazaro supported the clppeal. She argued all the grounds of I appeal as one. Her main contention was onl the evidence of visual identification which she. found to be weak Jn h~r submissJn, she comi11ented on the evidence· of I 1 PV\11 and P\!\13 which she observed to run short of description in their. visual . I identification of the Appellant. She· also idded on a short fall regarding the description of the moonlight as the aider tolards identification. She thus cited the case of Waziri Aman Vs I~. (1980) T.LR zso! insisting that, I PV\/1 and PW2 have not met the criteria stipulated regarding visual id:entificatlon.

I I I Ms Maryasinta also made another observa~ion that, PW3. was of 12 years of . . I . . .age and her evidence was not taken iii accordance with Act, No. 4 of 2016 requiring I' I f .I .. I J child oJ: tender year to give evidence Jfter h1aking or promise to tell the truth. She . ·I thus expunged that testimony in evidem.:e. l ( She therefore concluded· that, the rei'.naining evidence of PW1 cannot stand - without corrobo1'ative evidence, which remdin ·Jacking. It is upon those premises Ms . . I . . . Marirasinta Lazaro could not support convi:ction and sentence. On hearing this,the . Appellant had nothing to rejoin. I I I Having heard and considered submisfions of the parties 0-nd the evidence on record, ( agree with both the Appellant an(i the learned State Attorney that, the only evidence considered by the trial Magistratk in his findings is visual identification. I the question now is whether the Appellant was properly identified by PV\/1 arid P\t\13 I in the night of 15th of April, 2016 to commit the robbery in question. I . j I should first resolve one procedural issue regarding the testimony of PW3. At ' page 21 of the typed proceedings; PW3 dne Gabriel Kaitira is recorded to be of I • • I twelve (12) years of age. In terms of ~ectionj127 of the Evidence Act, Cap. 6, PW3 is_ a person of tender age for purposes of tes:ti(ying. As correctly put forward by the learned State

Attorney, his evidence waJI to be perceived after the Court was satisfied that the said w!tness promised to tell the truth and not lies. This I requirement is mandatory in terms of the law as amended by Act. No. 4- of 2016 in I section 26A (2). As the requirement was nqt met, Ms Maryasinta wasright to urge, which in agree, that the evidence of PW2 be1expunged. I . I . Notwithstanding, the fir1ding of the trial Magistrate at page 4 of the judgme11t did not incorporate the testimony of PW3. That means, the only evidence considered by the learned trial Magistrate to convict th~ Appellant is that of PWl only. I I As -submitted by the learned State Attorney, the evidence of PWJ is weak. There is no point he described the AppellAnt. Equally, the description of the moon j I ~ ----- I lighl aided liin1 to identify the Appell~rnt has nol liCL'll done. 0 this, the proceedings should speak by itselfregardirig e.vide.ncelo1· visual identification of PVVl. At page 14, ( the record reads:- -"Af 03:00 hours of 15th of April, 2016 while l wus me.dicated rny sic:k son, Carie/ s/o /{aitira sea.ted on bed 1 j-aw ·the bright torch light straight ~o the door of my hou~·e, I asked myself what wcis the problem, the torch light turned around, shortly I hea~rd the big stone hit the door of my house, then I !:;toad up and took my stol and punga· weapon then moved around close to the door side the

~oorfell I down on the floor inside the house, 1 was lighted with torch directly into rny face, I threw away that stol straight to ·those bandits and 1lremai1~ed with the panga weapon in my hand them I heard a voice "J(umbe tunapambarw" then I told them to come in the house, foflovv"ing tholse words that tor(h lost the direction . I ond that was when 1 saw the j accus~d Nyamwendo J<alugere @ Majimyiro prepare himself to come to rny house due to the bright moon I l(ght while was on, after realizing that I have identified accused suddenly I was stoned into my mduth and serious(v injured me as you ccin see me here (seen and showi1 the scar in Court) I ran away and . . I . . managed to .go outside to seek for help from my neighbors. Bandits chased one away for almost 15 pdces away and on seeing me running . I . the bandits stopped and I came bafk and my neigbours heard my alarm and carne to the_scene and I tole! tliem straight away ~hot I was i~vacled by bandits and I have seen one of them and identified one to he I<ayere s/o Nyamancia@ Mafunyiro." I From this testimony, as the learnJ! State Attorney observed, we cannot with . I . . ce1~tainty state thar, the Appellant was identified. As there is no any other evidence I ,. j --·