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Yohana Kulwa at Mwigulu & 3 Others vs. R, Consolidated Criminal Appeals No. 397 of 2016, Mwambegele JA
Yohana Kulwa at Mwigulu & 3 Others vs. R, Consolidated Criminal Appeals No. 397 of 2016, Mwambegele JA
ATTABORA
VERSUS
(Kaduri, l.)
MWAMBEGELE, J.A.:
Before the District Court of Shinyanga sitting at Shinyanga, the four
-John and Mashaka Jackson - were arraigned for armed robbery. After a
fully-fledged trial, they were found guilty as charged and each of them was
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was another person going by the name of Mulyambelele Masanja who was
the fifth accused person charged on the second count for receiving stolen
property and convicted as well and sentenced to two years in jail. He did
not appeal. The appellants' first appeal to the High Court proved futile
hence this second appeal. They have raised a total of twenty-nine grounds
of complaint which have the same substance and can be condensed in the
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4. The 1st appellate court wrongly relied on the evidence of PF3
law.
He used to buy gemstones from small holders at his office which ostensibly
raised a panga ready to hack him. No sooner had one of them raised a
panga, than another one held tight his neck, fell him down and the rest
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descended on him demanding money in the process. He was hacked on
his right arm .and sustained wounds on both palrns.. He had no money to
give them. He was raising an alarm in the process of attack. At the end of
the day, the robbers-made away with two cell phones make Nokia, a wrist
watch and a diamond weighing scale. They left behind PW3 tied to a chair
with a rope.
them were Kulwa Charles @ Bala (PW1) and Oscar Charles (PW2) who
worked in the same street. While on their way to the locus in quo, PWl
and PVV2, allegedly, saw the appellants running away from there. They
Street loading and unloading shipment on and off big trucks. They went to
the scene of crime and found PW3 in blood. Upon their information to the
police, the first appellant was arrested two hours after the robbery. The
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At the hearing of the appeal, all the appellants adopted their
elaboration to a later stage after they heard the response 'Of the
Responding, Mr. Mgeni supported all the grounds of appeal save for
stated that it was put in evidence contrary to the provisions of section 240
(3) of the Criminal Procedure Act, Cap. 20 of the Revised Edition, 2002
(hereinafter referred to as the CPA). It was his view that the PF3 must be
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evidence. He was also of the view that the statements must be expunged
of the view that it was wrongly applied. He argued that the victim (PW3)
tendered the exhibits without stating how they came into his possession.
Attorney was of the view that the same was sufficient to prove the case
against the appellants beyond reasonable doubt. He argued that PW1 and
PW2 knew the appellants before the incident as they worked together at
Balewa Street. He added that the incident occurred in broad daylight and
that they were not far from the scene of crime. He added that the
[1992] TLR 1:00 to· bolster his argument to the effect that the identification
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· For their part, the appellants dissociated themselves with the charges
levelled against them claiming that they did not know PW1 and PW2. They
claimed that the circumstances obtaining at the locus in quo were not such
.. . , ". . ~.'-'
that any assailant could easily be identified. They claimed that PW1 and
PW2 were arrested first in connection with the offence before being turned
into prosecution witnesses. They thus prayed that the Court analyses their
herein bellow state briefly on why we think the learned State Attorney is
section 240 (3) of the CPA is fatal and makes a PF3 admitted in blatant
Wilson & anor v. Republic, Criminal Appeal No. 235 of 2013, Arabi
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Mangwalanya v. Republic, Criminal Appeal No. 105 of 2010, Prosper
to mention but a few, In all these cases, the Court uninterruptedly held
that a trial court must advise an accused person of his right to call the
doctor and his answer must be on record. This was not done in the instant
case. It signifies that the PF3, which was admitted in evidence as Exh. Pl,
State Attorney, it ought to have been expunged by the first appellate court.
As that was not done by the first appellate court, we expunge it now.
P4 and Exh. P10, respectively. The record of appeal also bears it true that
the first appellant objected- to, both cautioned and extra-judicial statements
tortured before making them. The same is the case with the other
[2003] TLR 218 and 'Maha Ali & 5 Others v. Republic, Criminal Appeal
No. 78 of 2004 and Juma Bushiri v. Republic, Criminal Appeal No. 485
or a trial within trial to verify its voluntariness. In Twaha Ali & 5 Others
we categoricaIIy held:
[Emphasis added].
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In the case at hand, the appellants having objected to the tendering
of the cautioned and extra-judicial statements, the trial court ought to have
matter of nomenclature; it refers to one and the same thing but in different
for the primary court) and a trial within trial in the High Court.
State Attorney was of the strong view that it was sufficient to mount a
law on it.
identification. The case set out guidelines on visual identification which the
kind of evidence, the Court gave the word of caution at pp, 251 - 252:
The above excerpts from Waziri Amani lay down the principles in
respect of visual identification during the night, in broad daylight and visual
committed in broad daylight and the visual identifiers knew the appellants
before.
greatly in this appeal. Much as we are aware that the evidence of visual
identification in the present case is one of recognition and that this kind of
Criminal Appeal No. 32~ of 2QJ4 (uQr~ported), citing with approval Jh~,
Having closely revisited the law and juxtaposed it with the facts of the
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present case, we have found it difficult to go along with the learned State
Attorney. The testimony of the identifiers was such that it leaves some
.,.' ':-r' •. _'_ ,.'~_:
obtaining at the locus in quo and its precincts which facilitated their
,_" d1',
Likewise, on the relevant part, PW2jsr~ord~d as saying:
i "
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follow ups in that house where the cry for help
wa~ we found the mhindi wounded and was
bleeding. These (4) people ran in different
directions. Yohana ran towards to the old
primary-courtand the rest to the marketplace... N
identifiers did not state the distance between them and the persons being
identified. Second, they did not even describe the attire of the appellants
at the moment they were being identified. Third, time spent to identify
them was not described and fourth, as they testified that there were other
people going towards the scene of crime, they did not testify how they
could identify the appellants in that state of affairs. These are very
doubts that must be resolved in favour of the appellants as our criminal law
practice dictates. For the avoidance of doubt, we will not make any
the fifth accused person at the trial who did not appeal. In sum, we find
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the evidence, of visual identification by recognition falls short of the
10. the upshot we find that the case against the appellants was not
proved to the hilt. The consolidated appeal is meritorious and we allow it.
from prison custody unless otherwise held for some other lawful cause.
Order accordingly.
K. M. MUSSA
JUSTICE OF APPEAL
S. A. LILA
JUSTICE OF APPEAL
~
H.S. MUSHI
DEPUTY REGISTRAR
COURT OF APPEAL
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