IN THE COURT OF APPEAL OF TANZANIA

AT MTWARA

f CORAM: KEREFU. J.A., RUMANYIKA, J.A., And MGEYEKWA, J.A.)

CRIMINAL APPEAL NO. 318 OF 2021

NURUDIN ABASI N A M P A LA ............. .................................... 1st APPELLANT

RASHIDI AMIRI @ C H IL I ......................................... ............ 2 nd APPELLANT

VERSUS

THE R EP U B LIC ......................................................................... RESPONDENT

(Appeal from the decision of the High Court of Tanzania at Mtwara)

f Dyansobera. J.)

dated the 20th day of May, 2021

in
Criminal Sessions Case No. 05 of 2019

JUDGMENT OF THE COURT

27th & 30th May, 2024

KEREFU. 3.A.:

The appellants, NURUDIN ABASI NAMPALA and RASHIDI AMIRI @

CHILI were arraigned before the High Court of Tanzania at Mtwara for

the offence of murder contrary to section 196 of the Penal Code, Cap.

16 (the Penal Code) in Criminal Sessions Case No. 05 of 2019. The

information laid by the prosecution alleged that, on 13th December, 2015

about 01:00 hours at Mpeta Village within Masasi District in Mtwara

Region, the appellants murdered one Yahaya Lazima Binamu (the

deceased). The appellants pleaded not guilty to the charge. However,

after a full trial, they were convicted and each was sentenced to suffer

death by hanging.

The brief facts of the case that led to the appellants' arraignment,

conviction and sentence as obtained from the record of appeal are not

complicated. They go thus: On 12th December, 2015 at 23:00 hours,

Iddi Swedi Lazima (PW1) and Lazima Yahaya Lazima (PW2), who were

sales persons at a shop (mini supermarket) belonging to their father

(the deceased), were busy filling water in containers to be sold to

customers on the next day. Suddenly, they were ambushed by two

armed men. One was holding a gun, and the other one was carrying two

machetes. It was the testimony of PW1 that, one of the culprits,

demanded money from them and he told him that there was no money

as all proceeds of the day were with the deceased who by that time was

already at home.

Upon receiving that information, the two culprits tied PW1 and

PW2 together on their shirts and made them lead the way to their

father's house. At the house, they found the deceased with their uncle

one Jafari Lazima Binamu (PW3), the elder brother of the deceased.

PW1 stated further that, the culprits ordered them to kneel down and

others to lie down, which they obeyed. Then, one of the culprits,
slapped the deceased by using the side of a machete while the one with

the gun was standing aside. They demanded money from the deceased

who told them that the money was at the shop. As such, the culprits

went back to the shop with the deceased, PW1 and PW2 while leaving

PW3 behind.

At the shop, PW1 and PW2 tried to confront one of the culprits

who was holding a machete, but their attempt was not successful as the

other culprit started firing shots on the air to scare them together with

the villagers who had started to approach the scene of the crime and

throwing stones at the culprits. PW1 stated further that, the fired bullets

injured him on the hands and legs while the deceased was injured on

the abdomen and they both fell down. Seeing what had happened, the

culprits took to their heels.

A moment later, the victims (the deceased and PW1) were taken

to Mkomaindo hospital where they were attended by Dr. Sadick Ally

(PW5) who found that the deceased had already died but PW1 was still

alive but seriously injured on his knee. PW5 conducted an autopsy on

the deceased's body and concluded that the cause of death was

excessive internal bleeding caused by a penetrating wound on his iliac

bone. A post mortem report to that effect was admitted in evidence as

exhibit PI. PW1, being seriously injured, was referred to Ndanda

hospital and then to Muhimbili National Hospital where he was

hospitalized for almost four months.

PW1 went on to state that, he managed to identify the culprits at

the scene of the crime with the aid of electricity tube lights which were

illuminating inside and outside the shop and also at the deceased's

house. That, one of the culprits, who demanded for money inside the

shop, was short and black while the other, who was outside armed, was

tall. They both wore black jackets, trousers and shoes. He also added

that the culprits were strangers to them as they were not residents in

that village. Lazima Yahaya Lazima (PW2) and Jafari Lazima Binamu

(PW3) supported the narration made by PW1. PW2 added that, one of

the culprits was white, slender and tall while the other one was biack, a

bit slander and tall. The one with machetes was black. PW3 stated that,

when the culprits returned to the shop, he raised an alarm to alert

neighbours and he also went to the shop. According to him, one of the

culprits, who was holding a gun, was tall and white while the other one

with machetes was tall and black. Specifically, at the trial, both, PW1,

PW2 and PW3 testified that, at the scene, they only managed to identify
the first appellant as the other culprit, who was holding the machetes

was not brought before the trial court.

Stella George Kuonewa (PW4), the Ward Executive Officer was

among the people who heard the gun shots and went to the scene of

crime where she found a pool of blood. PW4 made some efforts to call

the police who came at the scene of the crime and gathered two-gun

cartridges. Nathanael Kyando SP (PW7), Insp. Iddi Omary (PW8), No.

F.8982 DC Paul (PW9) and No. G.1562 DC Hemed (PW10) testified that

they were involved in the investigation of the incident. Specifically, PW8

stated that they went to the scene of crime and found a pool of blood

which signified that someone had been injured and were able to recover

three cartridges which were admitted in evidence as exhibit P3

collectively. PW8 stated further that, they interviewed different people

on the incident and recorded their statements. Through the said

interview, they detected that the appellants were responsible with the

death of the deceased. Thus, they started to trace them without

success. PW10 prepared a sketch map of the scene of crime which was

admitted in evidence as exhibit P2.

On 27th December, 2015 the second appellant was arrested in

connection with the offence of assaulting his lover one Asumin Halifa
(PW6). PW6 informed PW9 that the second appellant was involved in

the murder incident. It was the testimony of PW9 that, upon

interrogation, the second appellant admitted to have participated in the

crime but just as a getaway motorist. That, the second appellant also

informed them that the first appellant, who was involved in that

incident, had ran to Dar es Salaam and volunteered to assist them to

arrest him. Subsequently, on 26th March, 2016, the first appellant was

arrested in Dar es Salaam and brought to Masasi. No. H.4088 DC Zakayo

(PW11), the fire arms and ammunition inspector, examined the retrieved

gun bullets and prepared a ballistic report (exhibit P4).

In their respective defense testimonies, both appellants denied any

involvement in the alleged offence. Specifically, the first appellant

raised a defence of alibi that, on the fateful date he was not in Mtwara

and was not identified at the scene of crime. On his part, the second

appellant challenged the evidence of PW6, contending that she gave an

untrue story before the trial court due to the existing grudges between

them. He asserted that, he was not identified by anyone at the scene of

crime.

At the end of the trial and when both sides closed their evidence, the

presiding learned trial Judge summed up the case to the assessors who
sat with him at the trial. In response, the three assessors unanimously

returned a verdict of guilty against the appellants. In his final verdict,

the learned trial Judge agreed with the assessors and found that the

case against the appellants was proved to the required standard through

the testimonies of PW1, PW2 and PW3 who properly identified the

appellants at the scene of crime. Thus, the appellants were found guilty,

convicted and sentenced as indicated above.

Aggrieved, the appellants are now before us challenging the High

Court's decision. We shall not recite all grounds of appeal filed by the

appellants for a reason to be detailed at a later stage of this judgment.

Suffice to say that initially, the appellants filed a substantive

memorandum of appeal, however later, when Mr. Rainery Norbert

Songea, learned counsel was assigned by the Court the dock brief to

represent the appellants, he lodged supplementary memorandum of

appeal on 21st May, 2024 with the following two grounds:

1. That, the trial court erred in iaw and facts by convicting

the second appellant herein while the prosecution did not
prove the case beyond reasonable doubt; and

2. That, the trial court erred in iaw and fact when it held
that the second appellant was properly identified at the
scene o f the crime.
 When the appeal was placed before us for hearing, the appellants

were represented by Messrs. Rainery Norbert Songea and Alex

Msalenge, both learned advocates whereas the respondent, Republic

was represented by Mr. Wilbroad Ndunguru, learned Principal State

Attorney assisted by Messrs. Gredo Rugaju and Faraja George, both

learned State Attorneys.

At the outset, the Court was informed by Mr. Rugaju that the first

appellant passed away on 14th December, 2023 at Ligula Regional

Hospital in Mtwara. To substantiate his submission, Mr. Rugaju referred

us to the letter from the officer-in-charge of Lilungu Central Prison dated

17th May, 2024 informing the Court about the death of the first appellant

together with the burial permit and postmortem report attached thereto.

On that basis, Mr. Rugaju urged us to mark the first appellant's appeal

to have abated under Rule 78 (1) of the Tanzania Court of Appeal Rules,

2009 (the Rules).

On his part, Mr. Songea did not object the prayer made by his

learned friend as the appeal does not relate to a sentence of fine, costs

and or compensation. In the circumstances and having considered the

letter from the officer-in-charge of Lilungu Central Prison dated 17th

May, 2024 together with the burial permit dated 14th December, 2024,
we granted the prayer sought. Consequently, and in terms of Rule 78

(1) of the Rules, we marked the appeal by the first appellant against the

respondent, Republic to have abated. Therefore, this judgment is in

respect of the surviving appellant.

Upon taking the floor and before advancing his arguments in

support of the appeal, Mr. Songea prayed to abandon the substantive

memorandum of appeal and intimated that he would start with the

second ground of appeal in the supplementary memorandum followed

by the first ground.

Starting with the second ground, Mr. Songea asserted that, it was not

in dispute that the incident happened at night as testified by PW1, PW2 and

PW3 the prosecution eye witnesses at the scene of the crime. He contended

that the visual identification of the second appellant by the said witnesses,

which was relied upon by the trial court to convict him, was not watertight. To

clarify on this point, the learned counsel referred us to pages 57, 63 and 67 of

the record of appeal, where the said witnesses categorically testified that they

only identified the first appellant. It was therefore, the strong argument by

Mr. Songea that the second appellant was not identified at the scene of crime.

The learned counsel argued further that, although, PW1, PW2 and

PW3 testified that they managed to identify the culprits with the aid of

electricity tube lights, they did not explain its intensity, the size of the
area illuminated by the said tube lights and the distance at which they

observed the incident. He argued that, much as PW1, PW2 and PW3

seemed to suggest that they were able to identify the appellants

through the said light, they failed to properly describe them. Instead,

they only generally mentioned their attire. To justify his point, the

learned counsel referred to pages 57, 61 and 67 of the record of appeal

and insisted that, since the incident happened at night PW1, PW2 and

PW3 were expected to give further descriptions on how they managed

to identify the culprits to avoid any possibility of mistaken identity. To

bolster his proposition, Mr. Songea cited the cases of Gervas Gervas

Cosmas @ Chambi & 5 Others v. Republic, Criminal Appeal No. 557

of 2021 [2023] TZCA 156: [29 March 2023: TanzLII] and Godfrey

Lusian Shirima v. Republic, Criminal Appeal No. 40 of 2021 [2022]

TZCA 584: [29 September 2022: TanzLII] and emphasized that, since

the visual identification evidence adduced by PW1, PW2 and PW3 was

not watertight, the same could not have been relied upon by the trial

court to ground the second appellant's conviction.

The submission of Mr. Songea on the first ground hinged on what

he submitted in respect of the second ground above. He argued that,

since the second appellant was not identified at the scene of crime then,

10
it was improper for the learned trial Judge to conclude that the case

against him was proved beyond reasonable doubts.

Upon being probed on how the second appellant was arrested and

connected with the murder incident, Mr. Songea, referred us to the

testimony of PW8 at page 84 of the record of appeal, who testified that

the second appellant was arrested in connection with the offence of

assaulting his wife (PW6). He thus challenged the testimony of PW6 that

it was recorded contrary to the provision of section 130 (1) and (3) of

the Evidence Act, Cap. 6 governing the evidence of spouses. As such, he

urged us to disregard the evidence of PW6. He was positive that the

said omission had as well weakened the prosecution's case as the

remaining evidence on record is insufficient to sustain the second

appellant's conviction. On that basis, Mr. Songea urged us to allow the

appeal, quash the conviction and set aside the sentence imposed on the

second appellant and set him at liberty.

In response, Mr. Rugaju expressed the stance of the respondent of

supporting the appeal. Mr. Rugaju was in agreement with what was

submitted by his learned friend in ali fours. He insisted that the evidence

of PW1, PW2 and PW3 who were the only prosecution's eye witnesses at

the scene of crime did not meet the conditions on visual identification

ii
stipulated in the cases of Waziri Amani v. Republic [1980] TLR 250

and Raymond Francis v. Republic [1994] T.LR. 100. He then

insisted that, since the second appellant was not identified at the scene

of crime, it was improper for the learned trial Judge to conclude that the

case against him was proved to the required standard. On that basis,

Mr. Rugaju also urged us to allow the appeal, quash the conviction and

set aside the sentence imposed against the second appellant and release

him from the prison.

In his brief rejoinder, Mr. Songea did not have much to say other

than associating himself with what was submitted by his learned friend.

We have considered the submissions made by the learned counsel

for the parties in the light of the record of appeal before us and the

appellant's grounds of complaints. The main issue for our determination

is the sufficiency or otherwise of the evidence of visual identification

acted upon by the trial court to convict the second appellant. We shall

therefore consider the grounds of appeal in the manner they have been

argued by the counsel for the parties.

Before doing so, it is crucial to state that, this being the first

appeal it is in the form of a re-hearing, therefore the Court, has a duty

to re-evaluate the entire evidence on record by reading it together and

12
subjecting.it to a critical scrutiny and, if warranted to arrive at its own

conclusion of fact. See D.R. Pandya v. Republic [1957] EA 336.

Starting with the second ground on the visual identification, we

wish to point out at the outset that, we agree with both learned counsel

for the parties that, it is trite law that for evidence of visual identification

to be acted upon by the court to ground a conviction, the same must be

watertight to eliminate all possibilities of mistaken identity. In the case

of Waziri Amani (supra), the Court gave the word of caution at pages

251 - 252, that: -

"...evidence o f visual identification, as Courts in East

Africa and England have warned in a number o f cases,
is o f the weakest kind and most unreliable. It follows
therefore, that no court should act on evidence o f visual
identification unless all possibilities o f mistaken
identity are eliminated and the court is fully
satisfied that the evidence before it is absolutely
watertight"[Emphasis added].

Now, in the case at hand, it is on record that in convicting the

appellants, the trial court relied mostly on the visual identification

evidence by PW1, PW2 and PW3 the only prosecution eye witnesses at

the scene of crime. This can be evidenced at page 173 of the record of

appeal, where the learned trial Judge concluded that:

13
 "Having evaluated the evidence on part o f the
prosecution, I am satisfied that the identification by
PW1, PW2 and PW3 was correct, watertight and
unmistaken. These witnesses identified the 2nd accused
and his fellow who was armed...The evidence o f
identification by PW1, PW2 and PW3 that they identified
the culprits at the crime scene was not their bare
assertions but were assertions accompanied by a
detailed description o f the culprits."

In their submissions before us, both learned counsel for the

parties, faulted the trial Judge for grounding conviction of the second

appellant on the evidence by PW1, PW2 and PW3 as they argued that

the said witnesses did not identify the second appellant. To verify this

point, we have revisited the evidence of the said witnesses.

PW1 at pages 57 and 58 of the record of appeal, testified that:

7 identified the person standing in the dock on the right

side as he is the one who was demanding money from
us. One was short and black. He wore black jacket,
trousers and shoes...I identified the 1st accusedHe
had a gun on that day... The short and black
person is not in court."

PW2 at page 61 of the same record testified that:

14
 "One was white, slender and tall. The other was black a
bit slander and tall. The white one was handling a gun.
The black person had pangas."

Then, at pages 63 and 67 of the same record, PW2 testified

that:

"/ did not see and identify the other accused on that
day. The second accused who handed the gun and
he is the one who shot it The one who was handling
pangas is not in court."

Again, PW3 at page 67 of the record of appeal stated that:

"Among those two people, I identified the one who had
a gun and is in court. He is the second accused in the
dock.

From the above excerpts, it is clear that, PW1, PW2 and PW3 did

not identify the second appellant at the scene of the crime as they all

testified that, they only managed to identify the culprit who was holding

a gun. They all, categorically testified that the other culprit who was

holding the machetes was not before the trial court. In the

circumstances, we agree with both learned counsel that the second

appellant was not completely identified at the scene of crime.

15
 It is also clear to us that, the visual identification by PW1 and PW2

was incredible and unreliable as the same was tainted with material

contradictions on, who among the two culprits was holding a gun. While

PW1 testified that the culprit who was holding a gun was the second

appellant, PW2 testified that, it was the first appellant. Though, in

another version, PW1 also testified that the one who was holding a gun

was the first appellant. In Mohamed Said Matula v. Republic [1995]

TLR 3 it was held that:

"Where the testimonies by witnesses contain

inconsistencies and contradictions the court has a duty
to address the inconsistences and try to resolve them
where possible or else the court has to decide whether
the inconsistences and contradictions are only minor, or
whether they go to the root o f the matter."

Unfortunately, in the case at hand, the trial court did not discharge

its duty to address such contradictions and inconsistencies. Having

examined and considered the said contradictions and inconsistencies, we

are of the settled view that they are fundamental as they raise doubts to

the extent that we are unable to eliminate the possibilities of mistaken

identity. Since the said contradictions go to the root of the prosecution's

case, we resolve them in favour of the second appellant.

16
 We are also mindful of the fact that, the second appellant was

implicated in this case by the evidence of PW9 who testified that he

interviewed him and recorded his cautioned statement where he

confessed that, on the fateful date, he participated in the crime but just

as a getaway motorist who assisted the culprits to access the scene of

crime. However, the said statement was not tendered before the trial

court to ascertain those facts. Hence, the same remained to be hearsay

evidence. It is also not in dispute that, the second appellant was

arrested on 27th December, 2015 in connection with the offence of

assaulting PW6, which again, had no any connection with the murder

incident in respect of this appeal. All these leads us to find that the

prosecution evidence against the second appellant was not proved to

the required standard.

On the basis of the reasons stated above, we are of the settled

view that, had the learned trial Judge properly scrutinized the evidence

of PW1, PW2 and PW3, he would have found that the second appellant

was not identified by the said witnesses at the scene of the crime. In the

circumstances, we agree with both learned counsel for the parties that it

was improper for the learned trial Judge to ground conviction of the

second appellant on the visual identification evidence adduced by PW1,

17
PW2 and PW3. It was equally improper for the learned trial Judge to

conclude that the case against the second appellant was proved beyond

reasonable doubts. As such we find the first and second grounds of

appeal to have merit.

In the event we allow the appeal. The conviction of the second

appellant is hereby quashed and the sentence imposed on him is hereby

set aside. Consequently, we order for immediate release of the second

appellant from prison unless he is being held for some other lawful

causes.

DATED at MTWARA this 29th day of May, 2024.

R. J. KEREFU
JUSTICE OF APPEAL

S. M. RUMANYIKA
JUSTICE OF APPEAL

A. Z. MGEYEKWA
JUSTICE OF APPEAL
The Judgment delivered this 30th day of May 2024 in the presence

of Mr. Alex Peter Msalenge, counsel for the Appellant and Mr. Alex

Samata Kasela, State Attorney for the Respondent/Republic is hereby

of the original.
v
. A. L. KALEGEYA
j DEPUTY REGISTRAR
V /COURT OF APPEAL