Chua, J.: Seven appellants namely (1) Nahum Salieya Mbise (2) Antony Yohana Juma (3) Stanslaus Erneo Furushi (4) Mohamed Bakari Faraji (5) Jumanne Bakari Faraji (6) I Idi Nangu Kitundu and (7) Isack Simon Kiteyo were found guilty in different offences and
sentence as follows: All the appellants except the 3rd one were found guilty of robbery A with violence and sentenced to seven years imprisonment; the third appellant was found guilty of being an accessory after the fact of robbery and sentenced to 7 years imprisonment. The convictions are being contested in this appeal.
There was unchallenged evidence from Naftali Mayombo (PW l) and Mohamed B Ibrahim (PW 2) that on 7/6/88 at about 9.30 p.m. bandits raided Lamshuku Mining Camp and in the process broke into several homes stole properties and injured several people. It was further proved that the night in question was dark and that some of the bandits who carried guns had put on military combat fatigues with camouflage. The issue C at the trial was whether the appellants were identified as being members of the gang.
According to Naftali Mayombo while he slept he heard gun shots and people shouting. Then suddenly the door of his house was forced open. He stated further that the lst, 2nd, D 4th, 5th, 6th and 7th accused entered. How was he able to identify these people? He went on to say that the lst accused was holding a torch whose light he directed on a bed. A little later, the witness stated that he identified the lst, 2nd and 4th accused by voice for he had worked with them. For the 5th, 6th and 7th accused he said that he identified E them when they went to the store. He does not reveal whether there was any light at that store.
He did not state whether these persons had put on any hats or caps to disguise their appearances. Be that as it may, the impression conveyed by PW 1 was that he was not F absolutely certain of what he stated in court for by first stating that he identified the lst, 2nd and 4th accused by voice and a bit later stating that they wore military dresses he was thereby contradicting himself. One would have expected the witness to say that he identified these people by their appearance if he saw them and knew them before that G day and not by their voices which is an unreliable means of identification.
The second identifying witness stated that when bandits broke into his house he saw the 2nd and 7th accused enter. He stated further that he had worked with the 2nd accused for one year and that the second accused talked to him telling him that they were H relatives and that he should show them where he had kept gemstones. As for the 7th accused he states that he had seen him at Mbuguni though he did not specify in connection with what business he had seen him. The witness had stated that right from the beginning of the episode he had dived under his bed. He nevertheless asserted that I the 3rd, 4th, 5th and 6th accused were outside without explaining
whether he went out of the house and if he did so whether there was any light out there A for the night was said to have been dark.
In respect of the first accused PW 2 stated that he did not see him that night while for the 3rd accused he deposed that on the l0/6/l988 he heard him tell one person called Tall and other culprits to run away lest they be arrested by the police. B
When FW2 was being cross examined he stated that the 2nd accused had entered his house while light was on but he did not describe what type of light was on. The importance of describing the type of light was vital in a case which depended almost solely on visual identification. C
The case also had another limb of evidence that could have been used to corroborate the evidence of identification if it had been properly handled. PW 1 in his evidence had stated that he heard a car leave the scene of crime and on peeping through a window D noted that it was a white pick up. He did not however note its registration number. Thus the evidence of Detective Corporal Kitimba (PW 4)
that upon receiving information that there was a white pick up with registration Nos. UF 440 hidden at Tengeru, that he went there and seazed it, that the 1st accused went to claim the vehicle on behalf of the registered owner one Peter Kamawathi, did not add E any weight to the prosecution case for the vehicle was not proved to have been the very one that was seen leaving the scene of crime.
There was evidence that the first accused on being arrested had set up an alibi claiming to have been in Nairobi at the time the crime was committed. The prosecution through F PW4 and PW5 purported to disprove the alibi by producing an emergency pass of the accused and showed that there was no stamp showing when he had last entered Tanzania. Furthermore records held by Immigration Officials at Namanga did not reflect an entry shown on the pass purporting to show that the first accused had travelled to G Kenya on the 1/6/88. But as conceded by Lucas Mponda (PW.5) it was possible that some stamps on the pass had faded away in which case he could not positively assert whether the first accused had not travelled to Kenya after the last date appearing on the pass which was the 29/2/88. That being the case the evidence had fallen short of H negating the alibi the accused had set up.
Learned State Attorney Mr. Kimomogoro declined to support the convictions because of the unsatisfactory evidence of the identification. He stated further that the mere fact I that the witnesses pointed out some of the accused persons in court did not add any weight because they knew them before the day of the offence.
I have carefully weighed the evidence that was adduced and the arguments that have A been levelled against the conviction and have to say the following in respect of the accused persons. In respect of the accused that were known to PW. 1 and PW.2 it is to be expected that they would have themselves to avoid being easily identified. PW.1 in fact said that he had known the 1st, 2nd and 4th accused persons because he had B worked with them and identified them by their voices. Later in his evidence he said that they wore military combat fatigues with camouflage. But PW.2 in his evidence said that he did not see the first accused person. Thus there was no evidence to corroborate that of PW.1 on his having identified the first accused person. C
There having been no other evidence to corroborate that of PW.1 the first accused was not properly convicted. In this respect the attention of the learned trial magistrate is drawn to the need for corroboration in cases where identification of the accused is done D in difficult circumstances such as those which prevailed in this case. The famous case of Abdallah Wendo v R. (1953) 20 EACA 166 is relevant.
In respect of the second accused PW.1 said that he had worked with him and knew him well. PW.2 also said that he knew the 2nd accused having worked with him for one E year. PW.2 further stated that the second had talked to him telling him that in fact he was his relative. Though the circumstances were not conducive to easy identification the fact that the witness knew the second accused well, a fact which was not contradicted, F removed the possibility of mistaken identity. The second accused having elected not to say anything for his defence, and the evidence of PW.1 having been corroborated by that of PW.2 it is my view that the conviction against the second accused was properly entered.
As regards the 3rd accused he was convicted of being an accessory after the fact of G robbery. This conviction was challenged on the ground that the evidence that was relied on to convict him was that he was heard to have warned two persons namely, Nathaniel and Kaburu to run away to avoid being arrested by the police, but that the two persons were not charged with the offence of robbery and therefore one cannot be an accessory H to an offence that has not been proved.
Learned State Attorney declined to support the conviction agreeing with the observation of learned defence counsel and went on to add that in law the learned trial magistrate I was wrong to substitute a conviction of being an accessory after the fact of robbery
with violence because the offence of being an accessory though minor to the offence of A robbery with violence is not cognate to it. The case of Andrea Nicodemu v R. [1969] HCD 25 was cited.
I have perused the case of Andrea Nicodemu v R. and agree entirely with the observations of the learned state attorney. A minor and cognate offence which can be B substituted for the offence charged must be one which can be arrived at by a process of subtracting some of the ingredients of the main offence.
It is quite clear to me that being an accessory after the fact to the offence of robbery with violence cannot be arrived at by a process of subtracting some ingredients from those C that constitute robbery with violence. The conviction in respect of the 3rd accused was therefore contrary to well established principles of law.
As regards the 4th, 5th and 6th accused persons it is noted that whereas PW.1 stated that he identified the 4th accused by voice and that he had seen him wearing military D combat fatigues with camouflage PW.2 stated that he the accused No. 4 was outside the other. There was no description of how he was able to see him outside while it was a dark night. The evidence of PW.1 was therefore not corroborated by credible evidence. That being the case the conviction against him cannot be supported. E
In respect of the 5th and 6th accused PW.1 stated that he saw them carrying boxes. There was no mention of how he identified them i.e. whether he knew them before that day or the dresses they put on or some other aspect which would dispel fears that he F could have made an honest but mistaken identification. PW.2 on his part merely said they were outside without any description whatsoever whether he went out and how he saw them in darkness. The conviction was therefore not properly entered for there was no credible evidence to corroborate that of PW.1. G
Finally in respect of the 7th accused PW.1 stated that he was one of the persons carrying the stolen goods. But he did not say how he recognized him for he did not say whether he had known him before that day and what dress he put on. PW.2 on his part said that he had met the 7th accused at Mbuguni but he did not elaborate in connection H with what business he had met him to dispel any fears that he could have mistaken him. The absence of a description of the appearance of the 7th accused contributed further to fears that the identification of the 7th accused was not absolutely water tight as is required in cases where the evidence relied or is entirely that of identification. In this I regard the case of Eria Sebwato is relevant.
Before I leave this case I must comment on the manner the learned trial magistrate A handled the defence case. It is noted in the record that after the submissions of counsel the first accused stated that he wanted to call witnesses for his defence though all the accused except the 3rd accused had earlier on stated that they had no witnesses to call.
The learned Resident Magistrate stated: B
I am sorry defence case is closed and I wonder why your advocate never mentioned this before. What he stated was only that you will remain silent and ask for submission date. There C is nothing this court can do at this state.
In my view before writing judgment the learned trial magistrate could have entertained the application of the accused which reflected that he probably had not been happy with D the manner the defence case had been conducted. By saying that there was nothing she could do the learned trial magistrate had abandoned her duty to ensure that a fair hearing had been given to all the parties. Magistrates and judges have a duty of ensuring that even defended accused get a fair hearing. E
In the final analysis I quash the conviction entered against the 1st, 3rd, 4th, 5th, 6th and 7th accused and set aside the sentences. They should be set free unless they are otherwise legally detained. The appeal in respect of the 2nd accused Antony Yohana Juma is dismissed entirely. F
Judgment delivered in the presence of Mr. Mwidunda, State Attorney. Mr. Kinabo who is notified but is busy in Session cases to be notified about the outcome of this appeal.
G Order accordingly.
A
________________