Dar es Salaam. It was just before 15:00 hours, May 21, 2004. Employees of the NBC Bank, Moshi Branch, were attending customers at closing time.
Suddenly, a group of men who had queued up for service, disguised themselves as ordinary customers revealed their true colour.
Sub-machine guns, pistols and knives hidden in their clothes were drawn and pointed at employees of the bank and customers, who were held captive, sprawled on the floor.
They moved their captives in the bank’s hall and thoroughly searched them and took away all their belongings.
Having assured themselves of their security in and outside the bank, the bandits moved on to collect cash, both local and foreign currency, from the tellers’ compartments as well as the strong room as they stuff them in polythene bags.
As the well coordinated robbery went on, a Toyota Land Cruiser moved close to the rear door of the bank. At this point Sh5.3 billion stolen from the bank was stuffed into the car and that speed away.
Five Kenyans – William Onyango Nganyi alias Dadii; Patrick Muthee Mrithi alias Musevu; Gabriel Kungu Kariuki; Jimmy Maina Njoroge alias Ordinary; Simon Ndungu Kianuthi alias Kenen, and Tanzanian Jumanne Kilongola alias Askofu - were among dozens of suspects who were arrested and charged at the Moshi Resident Magistrate’s Court with the offence.
At the end of a marathon trial, the six men were found guilty of armed robbery, and were each sentenced to 32 years imprisonment.
Their first appeal in the High Court was an empty success. Their conviction on the first count of conspiracy was quashed but conviction on the second count of armed robbery which earned them the 32 year jail term was upheld in December 2015.
Still undaunted, the appellants moved to the Court of Appeal to challenge both conviction and the sentence.
This time, the sentence against three of them – William Onyango Nganyi, Patrick Muthee alias Musevu and Simon Ndungu Kianuth alias Kenen – is quashed.
They cited irregularities of identification, poor visual identification evidence and discrepancies, contradictions and inconsistencies in testimonies of prosecution witnesses.
In a recent decision that was delivered via video conference from Ukonga Central Prison in presence of the appellants, a panel of three judges said that the conviction of Patrick Muthee, which based on the evidence of visual identification from Gadiel Sifael, was unsafe because Mr Sifael was never called to testify.
“The statement of a person who never appeared in court to testify, so as to be cross-examined by the accused and his demeanour assessed by the trial court; could not, without corroboration, ground conviction,” said Judges Sivangilwa Mwangesi, Gerald Ndika and Bethuel Mmilla.
Regarding the first accused person, William Nganyi, whose jailing based on identification parade were he was identified by prosecution witnesses Emmanuel Katuma and Paul Sadinaki,
Mr Katuma claimed to have identified Mr Nganyi during the identification parade after he had seen him at the scene of the crime.
On his part, MrSadinaki claimed to have identified MrNganyi during identification parade after he had ferried him and his colleagues in a shuttle from Arusha to Nairobi.
The judges said the identification of MrNganyi by MrKatuma could not be acted upon because he already had seen him in Nairobi prior the conduct of identification parade.
The court also found that there was no linkage between the identification of Simon Kiambuthiand the robbery at NBC bank.