20142027 TZHC Mwanza

.-02-

IN THE HIGH COURT OF TANZANIA

IN THE DISTRIC REGISTRY

ATMWANZA -H/C CRIMINAL APPEAL No·. 8Of 2014 (Arising from the Criminal Case No. 164 of 201 I of the District Court of Serengeti at Serengetifl",YAITORE S/0 MBOTE .. ..... ·........................................ APP·ELLANT versus .. THE REPUBLIC ........ ■ • ■ ••• ~ •••• I. ■■ I ■ ••••• ■ I • • I • • •·• II • • • • I • • • • • • • • ■■ •• RESPONDENT _·JUDGMENT 13/08-03/09/2014 J. A. DE- MELLO, l; The Appellant Nyaitore Mbote is appealing against ~he decision of the District Court of Serengeti at Mugumu for allegedly unfair conviction and, sentence of 30 -years imprisonment for the offence of Armed · Robbery contrary to section 287A Cap 16, Volume 1 R.IE 2002. The allegations during trial had it that, on 4th March 2010 at about 19:00 · hours within Mugumu District in Serengeti Mara Region, a motor cycle marked T245 BDN Toyota valued at TShs. 1,400,000/= the property of one Magutu~wiis stolen by the Appellant. It was further 20 ~ . 1 ·. .\,;l ;: ~ ;:; {cj •.1 , '/"cl, GI)_ - ~{'..tj r~.-~ \;JIJ - ~ • l :r· 1 ,1 <'r. alleged that the appellant did use a harmer to smash the complainant PWl ·j ' ,., in accomplishing his mission and which left the victim seriously injured. The Trial Magistrate was satisfied that the prosecution did a good job to confirm that it was the Appellant and him alone who committed the offence. Meaningful to say, is that the standards set for proof were

sufficiently and adequately met by the prosecution. He is now aggrieved and, before this Court with six 6 grounds of appeal challenging identification, disregard of defence of alibi and contravention section 50(1), (2) (3), 57(2) (e) of CPA.Cap 20. The Appellant appeared in person with no representation while Judith 1._0 Nyaki, learned State Attorney represented the Respondent for the Republic. · Rebutting the Appeal grounds, Judith submitted that it was correct and right for the Magistrate to base and, establish. his findings on both direct and circumstantial evidence. That, PW2 had ample time to stay with the Appellant at his premises after he sought refuge that fateful night and his escape in the morning from J. premises left a lot of .unanswered questions . The consequentia_l events following the 2 -04~ "robbery had it all leading to circumstantial evidence touching and implicating ,~ the Appellant as the culprit. Counsel resorted to the cases of Amandi Guehi vs. R, Criminal Appeal No. 242 of 2010 CAT, and that of Samson Daniel vs. R, (1934) EAC 15 to fortify her argument and in support thereof. On the second ground, that the Appellant was never found with any property alleged to be stolen, Counsel submitted that based on the testimony of PW1 and PW2 credible and reliable key witnesses was all it took to enter verdict against the Appellant. Nothing in law prohibits the

evidence of single witness, as it all depends on reliability and credibility one has, she asserted. 10 The submission by the Appellant for identification parade was also challenged by the State Counsel for the simple reason that it happened i.n broadlight evening g as the two the Appellant and the victim were together in the motor bicycle his subsequent arrest by fellow business companions popurlaly known as bodaboda paving way for knowledge of both and as such challenging it was immaterial. State Counsel found it uncalled for the defence of Alibi at this stage it being an after thought for ~ ~ l y raised at PH. Howev~r, she confirmed 3 ,.and as record of proceedings referred that, the Appellant had an extra duty - to duly prove that he was away on that fateful date of 4th March 2010., She however brought to the attention of the Court and as rightly testified by PWl and PW2, that after the commission of- the offence on that very ,l,j evening the Appellant took refuge. at PW2's residence which lead to arrest ~ . l on the following day of 5/03/2014 as recored in his cautioned statement. All what the Appellant is attempting to prove now with regard to ticket is trivial if not lame as does not even reveal his name. True, she agreed that there was irregularity in the tendering and admission of the caution statement and which the Magistrates disregarded but wholly relied on the (

0 evidence of the two credible and reliable key witnesses, that is PWl and PW2. I took the trouble to ascertain the findings of the Trial Magistrates and' of interest is the following from his judgment as I import hereunder; "... looking on facts of this ~vidence is wholly based · on circumstantiat it clearly connects with the evidence of PW1 when he was approached by the accused to take him as -::5-ssenger to Burung,1. ·IOl•--orn is similar as what PW2. _ 4 :) ?.1 i';l~1 -~}J (._\ II _,. {{)O- J v7 :j -·stated and also was the same that of PW1 found the • I -accused had worn when accused arrested... '~ It the trite law that for circumstantial evidence to prevail, a chain of eveots must be well articulated and established to prove the guilty of the accused and· none other. Many cases have alluded to these principles to including and not limited to that of Simon Musoke vs. R, 1958 EA 715 and the most current decision of Nkeshimana John @ Diodone vs. R, Criminal Appeal No. 229 of 2005 CAT at Tabora (unreported) it was stated; "Where the evidence against an accused person -is wholly circumstantial the facts_ from which an JO· inference adverse to the accused is sought to be drawn must be proved beyond reasonable doubt and must be c_learly connected with the facts frolJ1 which · the inference is to be inferred. In other words, the inference must irresistib lead to the guilt of

an accused person'~ . ~. 5 ~ 67- ~ .. ~, On the defence of 'alibi' the law provides under section 42. (2) &(3) as i hereunder :- "(2} Where an accused person does not raise the defence of alibi at the preliminary hearing,. he shall furnish the prosecution with the particulars of the alibi he intends to rely upon as a defence at any time before the case for the prosecution is closed'~ · {3} If the accused raises a defence of alibi without having first furnished the particulars of the alibi to the court or to the prosecution pursuant to this section, _iO or after the case for the defence has opene~ the Court may, in its discretion, accord no weight of any kind to the-defence'~ See also sectio_n 194 ·(6) of the Criminal Procedure Act Cap 20 in w~- support of the above position. ' \ 0 The sub section 6 ~ .:' "{6} If the accused raises a defence of alibi without having first furnished the particulars ofthe alibi to the Court or to the Prosecution pursuant to this section, the court may in its discretion, accord no weight of ·. any kind to the defence'~ The inadequate receipt tendered and admitted in Trial and marked "D1" however does not reflecting his name. The caution statement, I also join hands with the State Attorney that the Trial Magistrate never relied on it in reaching its findings having disregard it. 10 Lastly, let me also share my views on the identification parade.

Unless and, until there is need, it is not·mandatory to conduct identification parade. The cases of. Benson Kibaso Nyankonda @ Olembe Patroba Apiyo vs. Republic (1998) TLR 40 and that of Omary Majid vs. Republic, Criminal Appeal No. 228 of 2007 CAT at Arusha that; "Identification parade proceeds are merely investigatory in nature; t ~ .outcome has no independence proba~~value but can only ~ . · · 7 U: ;. corroborate· the evidence given in court by the . . identifying witness". I agree as I don't see the logic of conducting the parade considering the background and facts as depicted during trial and as rightly said from credible and reliable witness those of PWl &. PW2 for both direct and circumstantial evidence. In the interim and based on the foregoing, I am left with the only option to dismiss this appeal as I uphold the Trial District court decisions an_d sentence.· 8 If Under the circumstances, I find that, tne appeal is lacking in merit. ~1' · ...,. accordingly dismiss it in terms of conviction and sentence. I uphold the decision of the District Court. I, Order accordingly. Delivered at Mwanza Tnis 27th -October, 201-4:-------------.:___~----~ - - - - - tI. 11