Gervas Gervas Cosmas @ Chambi and Others vs Republic (Criminal Appeal 557 of 2021) [2023] TZCA 156 (29 March 2023)

The case in question is a criminal appeal involving six appellants who were charged and convicted of murder, contrary to sections 196 and 197 of the Penal Code. The crime occurred on 14/08/2017 at Mtandi area in Masasi District, Mtwara region, where they were alleged to have murdered Halfan Said Ulaya. The evidence for the conviction came from eight prosecution witnesses and two exhibits.

The main issues in the appeal were whether the first and second appellants were properly identified at the crime scene and whether the prosecution proved the case beyond reasonable doubt. The court also examined the efficacy of the identification parade conducted by the police.

The Court of Appeal found that the evidence of visual identification by the first prosecution witness (PW1) was not watertight. PW1 did not describe the physical features of the first and second appellants at the earliest opportunity, which lowered the credibility of the prosecution's case. The court also found that the identification parade was carried out in violation of Police General Order 232, rendering it ineffectual.

The court concluded that the prosecution did not prove its case beyond a reasonable doubt. The court quashed the High Court's order of conviction and set aside the resultant death sentence, ordering the immediate release of the appellants from prison unless they are held there for other lawful cause.