IN THE COURT OF APPEAL OF TANZANIA

AT IRINGA

( CORAM: MJASIRI. J.A.. JUMA. J.A.. And MUGASHA. J.A.^

CRIMINAL APPEAL NO. 320 OF 2015

SAMWELI S/O KIVIKE................................................................APPELLANT

VERSUS
THE REPUBLIC........................................................................RESPONDENT

(Appeal from the decision of the High Court of Tanzania

At Iringa)

(Kihwelo. J.)

Dated the 1st day of June, 2015

in
DC. Criminal Appeal No. 37/2013

JUDGMENT OF THE COURT

25th & 28th July, 2016

MJASIRI J.A.:

In the District Court of Iringa District, the appellant Samweli Kivike

was charged with rape contrary to sections 130 (1) and 2 (e) and 131 of

the Penal Code, Cap 16 R.E. 2002. He was convicted as charged and was

sentenced to the mandatory minimum sentence of 30 years imprisonment

and to suffer 12 strokes of the cane.

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 Being aggrieved by decision of the trial court, he appealed to the

High Court. His appeal was unsuccessful hence his second appeal to this

Court.

The background to this case is as follows. The complainant (PW1)

was a secondary school student. On her way home from school, she was

accompanied by Belinda Homo, PW2. According to them, they were

stopped by the appellant, who asked them for money. When they told him

they did not have money, he searched both of them and also emptied their

school bags. He then threatened them with a knife. He asked them to

choose whether to be raped or to have their breasts chopped off. He then

grabbed PW1, removed her clothes and raped her. The incident occurred

on May 11, 2012 at Isupilo Village within the District and Region of Iringa.

After the incident, PW2 accompanied PW1 to her house and explained their

ordeal to PWl's mother (PW4). She was then examined by her mother who

found bruises and sperms. The incident was reported to the Village

Executive Officer (VEO), who reported the matter to the police and PW1

was taken to the hospital for examination. On the next day while at the

hospital PW1 claimed to have spotted the appellant, called out for help

leading to the arrest of the appellant. PW1 claimed to have recognised the

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appellant from his attire. At the time she was raped, the appellant was

wearing a pair of jeans and a cream draft shirt. The appellant had put on

the same clothes. The prosecution called five (5) witnesses including a

clinical officer who confirmed that PW1 was raped.

At the hearing of the appeal, the appellant appeared in person and was

unrepresented while the respondent Republic had the services of Ms

Pienzia Nchombe, learned State Attorney.

The appellant presented an eight-point memorandum of appeal.

However the major ground of complaint is whether or not the appellant

was properly identified. He opted to let Ms Nchombe submit first.

Initially the learned State Attorney supported the appellant's

conviction. She was of the view that as the incident occurred during the

day, PW1 could clearly see the appellant therefore when she came across

him at the hospital she properly recognized him. However upon further

consideration, and taking into account anomalies on the record, she

changed her position.

The following factors led her to do so. One, no physical description

of the appellant was given by PW1 and PW2 and there was no mention of
While there is abundant evidence to support the fact that PW1 was raped

and therefore we can answer issue No. 1 in the affirmative. We cannot

reach the same conclusion in respect of issue No. 2.

The conviction of the appellant is based solely on identification. The

important question is whether or not the appellant was properly identified

by PW1 and PW2. We will commence with the testimony of PW2.The

identification made by her was dock identification. Does that suffice to

implicate the appellant? PW2 was the one who narrated the story to PWl's

mother, she neither gave a physical description of the appellant nor did she

mention the type of clothes the appellant was wearing. No identification

parade was conducted.

In Gabriel Kamau Njoroge v Republic (1982-1988) I KAR 1134,

the Kenya Court of Appeal stated as follows:-

"Dock identification is worthless (the Court should

not rely on dock identification) unless this had been

preceded by a properly conducted identification

parade. A witness should be asked to give a

description of the accused and the prosecution

should then arrange a fair identification parade."

This reasoning was adopted by this Court in Francis Majaliwa Deus & 2

others v Republic, Criminal Appeal No. 139 of 2005. See also, Joseph

Mkumbwa & Another v Republic, Criminal Appeal No. 97 of 2007 and

Mussa Elias & 2 Others v Republic, Criminal Appeal No. 122 of 1999

CAT (all unreported).

Now moving to PW1, who was the victim, no physical description nor the

clothes the appellant was wearing was mentioned by her after the incident.

Even though at the hospital, she claimed to have identified the appellant

because of the clothes he was wearing.

No identification parade was conducted despite the fact that the

appellant was not known to the victim (PW1) or her friend PW2. Under the

circumstances, was the 1st appellate court and the trial court right to

conclude that PW1 identified the appellant by way of recognition?

The basis of identification of the appellant was the denim trousers

and the cream draft shirt he was wearing. The so called clothes were never

produced in Court as exhibit.

 It is trite law 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

watertight. See Waziri Amani v Republic (1980) TLR 250.

In Waziri Amani (supra) the Court listed some of the factors to be

considered in determining whether identification is water tight. These

factors include the following

"the time the witness had the accused under

observation> the distance at which he

observed him; the conditions in which the

observation occurred\ if it was day or night time;

whether there was good or poor lighting at

the scene; whether the witness knew or had

seen the accused before or not"

[Emphasis provided].

Coming' to the case at hand, even though the incident occurred

during the day, the appellant was a stranger to PW1 and PW2. The time

the witnesses had the accused under observation was not disclosed. No

specific description of the physique of the appellant was given or any

special feature. PW1 and PW2 never gave a description of the appellant to

PW4, the victim's mother.

In Taiko Lengei versus the Republic, Criminal Appeal No. 134 of

2013 unreported the Court stated thus:-

" 'Indeed\ the failure by the said prosecution

witnesses to make the description o f the appellant

at the earliest opportunity to PW3 or other persons

renders their assertion o f having identified the

appellant at the scene of crime highly suspect-f

implausible and has left grave doubts in the

credibility o f the two witnesses."

It is clear from the evidence available that the prosecution failed to meet

the standard required under the law.

In Shamir John v Republic, Criminal Appeal No. 166 of 2004

(unreported) this Court stated that:-

"There is no gainsaying that evidence in

identification cases can bring about

miscarriage of justice. In our judgment

whenever the case against an accused

 depends wholly or substantially on

identification of the accused which the

defence alleges to be mistaken, the courts

should warn themselves of the special need

for caution before convicting the accused in

reliance in the correctness of the

identification or identification.... This is

because it often happens that there is always

a possibility that a mistaken witness can be a

convincing one."

In Shamir John (supra) the Court further stated:-

"Recognition may be more reliable than

identification of a stranger, but even when the

witness is purporting to recognize someone

whom he knows, the Court should always be

aware that mistakes in recognition of dose

relatives and friends are sometimes made. "

[Emphasis ours].
 Identification of the appellant by PW1 is claimed to have been

identification by recognition which in law has been found to be more

reliable than identification of a mere stranger as was held by the Court of

Appeal of Kenya in Anjanani Republic (1998) KLR 60. In the instant

case, the appellant was not known to PW1.

The prosecution also failed to call as a witness, the police officer who

arrested the appellant, and who went with him to his house to conduct a

search. We are alive to the fact that no specific number of witnesses is

required to prove a case, and it is the discretion of the prosecution to call

the witnesses which they find most suitable for their case.

Section 143 of the Evidence Act, Cap 6 provides as follows:-

"Subject to the provisions o f any other written law,

no particular number of witnesses shall in any case

be required for proof of any fact."

See Yohanis Msigwa v Republic (1990) TLR 140.

However the said discretion or the part of the prosecution must be

exercised judicially to advance the cause of justice. See - Separatus

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Theonest v Republic, Criminal Appeal No. 138 of 2005; Riziki Method

v Republic; Criminal Appeal No. 80 of 2008 CAT (both unreported).

In Azizi Abdallah v Republic (1991) TLR 71, the Court stated

thus:-

"the general and well known rule is that the

prosecutor is under a prima facie duty to call those

witnesses who from their connection with the

transaction in question, are able to testify in

material facts.

I f such witnesses are within reach but are not called

without sufficient reason being shown, the court

may draw an inference adverse to the prosecution. "

[Emphasis provided].

If the police officer was called, it is our considered opinion that he

would have given independent evidence as to the circumstances leading to

the arrest of the appellant. He would also have highlighted on the search

conducted in the appellant's premises. Failure to call the police officer

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without good cause being shown left a question mark which prejudiced the

appellant's case.

Therefore for the reasons stated hereinabove we find merit in the

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

the sentence of 30 years imprisonment and 12 strokes imposed by the trial

court. We hereby order the appellant to be released forthwith from prison

unless otherwise lawfully held.

DATED at IRINGA this 26th day of July, 2016.

S. MJASIRI
JUSTICE OF APPEAL

I. H. JUMA
JUSTICE OF APPEAL

S. MUGASHA
JUSTICE OF APPEAL

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

B. R. NYAKI
DEPUTY REGISTRAR
COURT OF APPEAL

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