20080722 TZHC Arusha

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IN THE HIGH COURT OF TANZANIA

AT ARUSHA CRIMINAL APPEAL NO. 14-2 OF 2007 MARTIN SEBASTIAN NYONI @ FIFTY . . . . . . APPELLANT - Versus - THE REPUBLIC . . . . .. ............... .. ... RESPONDENT (Appeal from the decision of the District Court of Arusha ) (F. A. KAHAMBA - RM) Date<l the 24,th day of July, 2007 In Criminal Case No. 719 of 2005

JUJJGMENT OF THE COURT 21 st July & 30 th July, 2008 BEFORE: B. M. MMILLA, J.; The appellant, Martin Sebastian Nyoni @ Fifty was among the five persons who were charged in the District Court of Arusha with five counts of armed robbery. While all his colleagues were acquitted on all the counts, the appellant was found guilty on all of them, convicted and sentenced to a twenty five (25) years' imprisonment term. The appeal is against conviction and sentence. He is appearing in person while the Republic is being represented by Mr. Zakaria, learned state attorney who declined to support convictions, hence the sentence which was imposed on account of insufficiency of evidence to sustain the said convictions. The appellant's memorandum of appeal has raised three grounds which converge on one broad point that he was not properly identified as having been the culprit behind the charged · crimes, consequently that the prosecution did not prove the case against him beyond reasonable doubt. His oral submission in court focused on nothing else but this point. He concluded therefore, that the totality of the prosecution evidence was not cogent, a view shared by the learned state attorney Mr. Zakaria. I hasten to say that I agree with then1. The strength of this appeal depends on whether or not the evidence of identification in that regard was water tight. Should it be found that

the appellant was not properly identification, I have no doubt that it will fall, the reason being that he was cmivicted solely on the evidence of PW4 who purported that he identified him. As was observed by the Court of Appeal in the case of Waziri s/o A1nani v. Republic (1980) T.L.R. 250, evidence of visual identification is of the weakest kind and most unreliable. In view of this, that court stated in the last paragraph of page 251 that:- ,, ... no court should act on evidence of visual identification unless all possibilities of mistaken identity are eliminated and the court is fully satisfied that the evidence before it is absolutely water tight." The above court's expression was based on the cases of R. v. Eria SelJwato i (1960) E.A. 174, Lejor Teper v. The Queen (1952) E.A. 480, Ahdalla Bin 2 Wemlo and Another v. R (1953) 20 E. A. C. A. 166, R. v. Kahigo wa Nangungu (194,8) 23 K. L. R. and Mugo v. R. (1966) E. A. 124, (K). In our instant case, the charged crime was allegedly committed at night, which means the condition of identification was unfavourable. As properly submitted by both the appellant and the learned state attorney Mr. Zakaria, of all the prosecution witnesses only PW 4 claimed that he managed to identify the appellant on account that he battled with him for about 45 minutes. The other witnesses, PWl Ayubu s/o Kibiki and PW3 Grace d/o Christopher Kitundu

told the trial court that they did not identify any of the culprits, including the appellant. I share the views of the learned state attorney Mr. Zakaria that the evidence of PW4 on the point was insufficient because he did not know hin1 before nor did he offer any description of the appellant. Relying on the case of Walter Domini @ O1nondi & Tmnaini s/o Luther v. Rcpuhlie, Crin1inal Appeal No. 15 of 2005, CAT, Arusha Registry (unreported), Mr. Zakaria submitted that although PW 4 said there was light at the scene of crime, that assertion was inadequate because he did not explain the source of the alleged light. That is indeed the case. This fact stabilizes the view that the condition of identification was not favourable. As to what may amount to a favourable identification, the Court of Appeal said it all in the already cited case of Waziri Aniani when it stated:- '"Although no hard and fast rules can be laid down as to the manner a trial judge should determine questions of disputed 3 identity, it seems clear to us that he could not be said to have properly resolved the issue unless there is shown on the -record a careful and considered analysis of all the surrounding circumstances of the crime being tried. We would for example, expect to find on record questions such as the following posed and resolved by him: the time the witness had the accused under observation; the

distance at which he observed him; the conditions in which such observation occurred; for instance, ,vhether it was day or night time, whether there was good or poor lighting at the scene; and further whether the witness knew or had seen the accused Lefore or not. These matters are but a few ... to which the trial judge should direct his mind before coming to one definite conclusion on the issue of identity." It will be appreciated that the trial court magistrate in the present case did not vouch such facts as a result of which he cannot be said he eliminated the danger of mistaken identity. It is on this basis that I said right from the beginning that I share their view that the issue of identity was not propedy resolved. In the circumstances, this ground has merits and succeeds. Before I may conclude, I have one observation to make regarding the sentence which was imposed by the trial court. As I said at the beginning, the appellant was convicted on all the 5 counts with which he 4 was faced. When it came to sentencing however, that court said that, I quote:·- "The 3 rd Accused Martin s/o Sebastian Nyoni @ Fifty is hereby sentenced to serve imprisonment term of twenty five (25) years." This sentence did not refer to any specific count, nor can it be said it reflected on all the counts. l cannot avoid saying that in the circumstances of this case it was omnibus. The cases of

Burton Mwakipcsilc v. Rcpuhlic (1965) E.A. 4.07 and Nathanael Nkulikiyc v. Rcpuhlic (1982) T.L.R. 129 provide vital guidance regarding ornnibus sentences. In the latter case of Nathanael Nkulikiyc, the court passed a single sentence among the 8 counts which were charged. Relying on the former case of Burton Mwakipcsilc, that court said that:- ''The second question 1s the omnibus sentence imposed on counts l to 8. The general principle is that an omnibus sentence is unlawful when it is unrelated to each conviction on each count. In other words for each conviction there must . d a separate sentence ... " b e impose· In view of the above, the trial court magistrate ,vas duty bound, or ought to have passed a sentence in each of the counts on which it convicted him. However, this was not a fundamental irregularity. In a fit case, I would have resoi-ted to the provisions of section 388 of the Criminal. Procedure Act Cap .20 of the Revised Edition; 2002 and cured it by passing the 5. appropriate sentences m each count. However, in view of what I have said in this judgment as a whole, I find that there is no need to do so and I refrain. ~Tith all that said, and for reasons I have endeavoured to give m this judgment:, I allow the appeal, quash the convictions and set aside the sentence which was awarded. It is, hereby ordered that the appellant he released from jail forthwith unless he

is being otherwise continuaily held for some other lawful cause. (Sgd) Mmilla, H. M. Jmlge 22.7.2008 30 th July, 2008 Cora1n: B. M.. K. 1\1:milla, J. For the Ap1,ellant: Abseut. For the Hcspomlcnt: Ms. Nchalla, State Attorney. B/c: S. M. 6 'i th Court: Judg1nent delivered this 30 day of July, 2008 in the presence of Ms. Nchalla for the Republic hut in the absence of the appellant. AT ARUSI-IA (Sgtl) Mmilla, B.M. Jmlgc 30/7/2008 I certify that this is a true copy of the origi al.

UNGI

ISTRAR AH.USHA 7