IN THE COURT OF APPEAL OF TANZANIA

AT BUKOBA
(CORAM: RUTAKANGWA, J.A., KIMARO,J.A.,And LUANDA, J.A.)
CRIMINAL APPEAL NO. 230 OF 2014
ISDORY CORNERY@RWEYEMAMU …………………………APPELLANT
VERSUS
THE REPUBLIC…………………..……………………………RESPONDENT
(Appeal from the conviction and judgement of the High Court
of Tanzania at Bukoba).

(Khaday, J.)
dated 20th day of September, 2013
in
Criminal Session Case No. 103 of 2008
……………..

JUDGEMENT OF THE COURT

13th& 23rdFebruary, 2015.

LUANDA, J.A.:

This is an appeal against the decision of the High Court of Tanzania

sitting at Bukoba arising from Criminal Session Case No. 103 of 2008. The

above named appellant was charged with and convicted for murdering

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Adelinaw/o Theonest on 22nd June, 2007 at Omurushambi village within

Karagwe District. He was sentenced to suffer death by hanging.

Having read the evidence on record, there is no dispute as found by

the trial High Court that Adelina w/o Theonest is dead and she died an

unnatural death. The issue which we are going to address ourselves is

whether it was the appellant who caused her death as found by the High

Court.

The prosecution case rests on the question of visual identification in

tandem with credibility of witnesses. There was evidence on the

prosecution side that on the fateful day i.e. 22/6/2007 around 21.00hrs

while Devotha d/o Theonest (PW1), Renatha d/oTheonest (PW2) who were

then aged 14 and 8 years respectively with their mother (the deceased)

were inside their house at the sitting room, suddenly the door was forced

open. This enabled the intruders to gain ingress therein. However, these

two witnesses differ as to who exactly were the intruders. PW1 said she

saw two people the appellant and Kamugisha. Later during her

examination in chief she added that she had also seen Ally Mwarabu. On
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the otherhand PW2 mentioned the appellant and Ally. As to Kamugisha

she also said she saw him but he was outside the house. She saw him

when they were running from their house to the house of

KatusiimeDionece (PW3). Obviously the two were not at one.As to what

assisted them to identify the said persons, both said there was a lantern

lamp (Chemli) burning inside the house.

It is further the evidence of PW1 that the appellant asked her as to

the whereabouts of their mother. She replied that she did not know. Then

PW1 and PW2 were hit by a panga and not cut as held by the learned trial

Judge. She went on to say the deceased ran inside the room and hid

herself under the bed. How did PW1 see the deceased hiding under the

bed while she was at the sitting room! Whatever the position the two then

ran away and went to the house of PW3. When they were asked by PW3,

PW1 explained the story to PW3 and PW3 said PW1 mentioned the

appellant, Kamugisha and Ally as the people who invaded their house.

PW3 took PW1 and PW2 to the hamlet chairman who in turn took them to

the village chairman. Information about the invasion circulated in the

village where later on the villagers assembled at the scene of crime and

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search for the deceased commenced. However, they were not successful

as the house was on fire.In the morning around 8.00 hours police in

accompany with a doctor Andrew Charles Cesari (PW5) arrived at the

scene. The doctor managed to see the body of the deceased which was

burnt beyond recognition.

The appellant denied to have murdered the deceased.

In this appeal Mr. Aaron Kabunga learned counsel represented the

appellant; whereas Mr. AloyceMbunito learned State Attorney appeared for

the respondent/Republic. Mr. Mbunito did not resist the appeal.

Mr. Kabunga raised two grounds of appeal in the memorandum of

appeal. One, the evidence of visual identification by PW1 and PW2 which

the trial Court relied on to convict was improper, unreliable and incredible.

Two, the prosecution side did not prove the case to the standard required.

Mr.Kabunga argued the two grounds together.

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 Submitting on behalf of the appellant, basically Mr. Kabunga said the

appellant was convicted solely on the evidence of visual identification given

by PW1 and PW2. The evidence indicated that the incident occurred at

night time. It is Mr. Kabunga’s contention that, it is the duty of the

prosecution to lead evidence to show the conditions prevailing at the

scene, whether they were conducive for correct identification. In order to

do so, the prosecution, must lead evidence to show, inter alia, the intensity

of the lamp it illuminated; the size of the room; the time taken to observe;

the place where the two positioned themselves vis-à-vis the lamp.

In this case he went on PW1 and PW2 failed or were not led to

explain satisfactorily the conditions prevailing at the scene though they

claimed to have recognized the appellant through the lantern lamp. Since

they failed to explain the conditions prevailing at the scene, it is doubtful

under the circumstances for the witnesses to have recognized the

appellant. He referred us to the WaziriAmani v. R [1980] TLR 250.

Mr. Kabunga also talked about credibility of witnesses as a whole.

For instance, he said it is the evidence of PW3 who said PW1 and PW2
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mentioned the appellant to her as the person who invaded the house. But

that evidence is supported neither by PW1 nor by PW2.

The two, according to PW1 mentioned the appellant to the hamlet

chairman. Mr.Kabunga went on to saythat if the appellant was all along

present at the scene as is indicated on page 23 of the record, then why not

arrest him immediately if he was mentioned much earlier?As regards to

contradictions in the evidence of PW1 and PW2 which the learned trial

judge said is minor Mr. Kabunga said they were not minor; they are crucial

or vital to the case.

Last but not least, Mr. Kabunga was wondering if Ally who was said

to have been identified by PW1 and PW2 was not charged along with the

appellant why the appellant was convicted?.The appellant should have

been acquitted.

As we have hinted earlier on, Mr. Mbunito supported the appeal. He

said Mr. Kabunga exhausted what he wanted to say. He however added

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that the evidence of visual identification was not watertight. And PW1 and

PW2 contradicted each other.

The crux of the matter in this appeal as we have stated earlier on is

whether the appellant is the one who murdered the deceased after the

door was forced open.

It is in evidence that the breaking of the door and the ultimate killing

of the deceased was committed during night time. The question now is

whether the conditions prevailing at the scene of crime were favourable for

correct identification. We are very much aware that the evidence in every

case where visual identification is what is relied on, must be subjected to

careful scrutiny due regard being paid to all the prevailing conditions to see

if in all the circumstances, there was really sure opportunity and convincing

ability to identify the person correctly and that every reasonable possibility

of error has been dispelled. (See.WaziriAmani v. R [1980] TLR 250;

PhilipoRukaza @ Kitchwechembogo v. R, Criminal Appeal No. 215 of

1994 CAT (Unreported); Raymond Francis v. R, [1991] TLR. 100)

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 In this case we have seen as correctly pointed out by Mr. Kabunga

that PW1 and PW2 merely said the area was lit by lantern lamp. They did

not attempt to explain the intensity of the lamp.The need to state the

intensity of the light it illuminated was underscored by this Court in

IssaMgara @ Shuka VR, Criminal Appeal No. 37 of 2005, (unreported).

The Court said:-

“It is not enough to say that there was light at the

scene of crime, hence the overriding need to give

sufficient details on the source of light and its

intensity.”

Not only that, the record is also silent as to the distance from where the

lamp was positioned vis – a vis the point of confrontation. Further, they

did not state the size of the room and the time spent by invaders before

PW1 and PW2 left. These factors, which are crucial in this case, ought to

have been considered before a positive assertion is made as to whether

the witnesses had identified the appellant.

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 It is also not irrelevant to point out at this stage that according to

PW3 when PW1 and PW2 arrived at her house, she claimed to have asked

them whether they were able to identify/recognize the invaders. The two

mentioned Rweyemamu, the appellant and Ally. PW3 knew them very

well. She then took them to the chairman of the area who in turn took

them to the village chairman. One would have expected PW3 to have told

at least the village chairman the people who invaded the house of the

deceased on the strength of the information supplied by PW1 and PW2 and

got arrested taking into account the fact that the appellant was around

throughout night time up to burial. The appellant was arrested after the

burial of the deceased. Why such a delay in naming the culpits if really

PW1 and PW2 saw the invaders and mentioned them to PW3.? Such delay

raises doubt. This reinforces the fact that the appellant was not

immediately named by PW1 and PW2 at the earliest possible opportunity.

So, PW3 was lying.Itshould be borne in mind that the ability of a witness to

name a suspect at the earliest opportunity is an all importantassurance of

his reliability in the same way as unexplained delay or complete failure to

do so should put a prudent court to inquiry (See MarwaWangitiMwita&

Another VR [2003] TLR 39). There is also the evidence of PW1 who

claimed to have seen the appellant and Kamugisha killing her mother.

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That cannot be true because PW1 and PW2 left leaving behind their

mother inside her room.

In the circumstances, we are satisfied that on the evidence it is

doubtful that the appellant was properly identified by PW1 and PW2. We

agree with Mr. Kabunga and Mr. Mbunito that the evidence on record is not

watertight.

We have shown that the conditions prevailing were not conducive for

correct identification. We have also highlighted that the evidence of PW1,

PW2 and PW3 had deficiencies, contradictions of material nature and

exaggeration. These three witnesses were not credible at all. Taking the

above into consideration, it would be unsafe to uphold the appellant’s

conviction.

We therefore allow the appeal, quash the conviction and set aside

the sentence of death. The appellant to be set free forthwith unless he is

held in connection with another matter.

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Order accordingly.

DATED at BUKOBA this20thday of February, 2015.

E.M.K. RUTAKANGWA
JUSTICE OF APPEAL

N.P. KIMARO
JUSTICE OF APPEAL

B.M. LUANDA
JUSTICE OF APPEAL

I certify that this is a true copy of the original.

E.Y. MKWIZU
DEPUTY REGISTRAR
COURT OF APPEAL

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