Erasto Zabron & Others vs Republic (Criminal Appeal No. 259 of 2024) [2026] TZCA 429 (22 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCORAM: LEVIRA, J.A., MDEMU. J.A. And ISSA. J. A.1 ) CRIMINAL APPEAL NO. 259 OF 2024 YOHANA SAMSON JUMA ELISHA BARAKA ERASTO ZABRON i ^ a p p ella n t 2ndAPPELLANT .3R D APPELLANT VERSUS THE REPUBLIC RESPONDENT (Appeal from the Judgment of the Resident Magistrate's Court of Geita, at Geita) 16th February & 22n d April, 2026 MDEMU. J.A.: The trio appellants together with Issack Misangwa, Hashim Hamis, Mahila Shaabani and Paulo Yohana who are not parties to this appeal, were arraigned before the District Court of Chato for the offence of armed robbery contrary to section 287A of the Pena! Code, Cap. 16. It was alleged that, they robbed carbon materials valued at TZS. 27,682,598.30, the property of Hura Rashidi Kazi and in the course, a machete was deployed to threaten one Alkado Hilary in order to steal the said carbon materials. (Tenqwa, SRM-Ext. Jurist Dated the 1st day of June, 2023 in RM Criminal Appeal No. 11 of 2023 JUDGMENT OF THE COURT The trial which comprised of twelve prosecution witnesses, nine exhibits and seven defence witnesses, found the offence of gang robbery proven contrary to section 287C of the Penal Code against the trio appellants and Hashimu Hamis who was the 5th accused person. It thus substituted it for that of armed robbery and after conviction, sentenced each convict to a thirty (30) years prison term. It further made two consequential orders; remittance of 16 bags of carbon materials to the owner and confiscation of a car, Toyota Hilux with registration number T354 AGF whose proceeds of sale be deposited in Government coffers. The appellants and the said Hashim Hamis appealed to the High Court, which appeal was transferred to and heard by Tengwa, Senior Resident Magistrate with Extended Jurisdiction (SRM-Ext. Juris.) sitting in the Resident Magistrate's Court of Mwanza. In the end of it, the appeal against Hashim Hamis was allowed, accordingly, he was released. Basing on their confessions and the doctrine of recent possession, the first appellate court sustained convictions and sentences in respect of the appellants. Further dissatisfied, they have lodged the instant appeal through a supplementary memorandum of appeal following the abandonment of a memorandum of appeal lodged on 10th January, 2024. The grounds of appeal are as hereunder: 1. That, the 1st appellate court failed to notice that the appellants were not given opportunity to cross-examine prosecution witnesses in [a] mini trial and further, the trial court failed to give opportunity to the appellants to cross-examine each other [..] as a result, [they] were not afforded a fair trial, the irregularity which rendered the proceedings [...] a nullity. 2. That, the 1st appellate court erred in law and fact by relying on the [illegally procured and admitted] cautioned statement of Yohana Samson Juma (exhibit P5) and extrajudicial statement of Erasto Zabloni (exhibit P6) to convict the appellants on the offence charged[...]. 3. That, the 1st appellate court erred in law and fact to invoke the doctrine of recent possession (exhibit PI) to implicate the appellants on the offence charged. 4. That, the 1st appellate court erred in law for failure to notice that the [charge was] defective. [...] 5. That, there were misapprehensions of evidence by the 1st appellate court leading to a wrong conviction against the appellants. 6. That, [...] the offence which the appellants were charged and convicted for was not proved beyond reasonable doubts. At the hearing of the appeal on 16th February, 2026, Mr. Cosmas Tuthuru, learned advocate represented the appellants, whereas the respondent had the services of Ms. Caroline Mushi, learned Senior State Attorney assisted by Mr. Mekhior Hurubano, learned State Attorney. In support of the appeal, Mr. Tuthuru commenced his submission in the proceedings of an inquiry which resolved the legality of the appellants' confessions that, the appellants were not given an opportunity to cross examine the prosecution witnesses. This anomaly, to Mr. Tuthuru, went against the principles of a fair trial. To him, this concludes that, the confession was illegally procured. He henceforth urged us to apply the principles stated in Matinde Mwita Kirangani & Another v. Republic (Criminal Appeal No. 286 of 2022) [2025] TZCA 218 (17 March 2025; TanzLII) and hold that, the trial of the appellants was unfair. Mr. Tuthuru further argued that, the cautioned statement of the 3rd appellant (exhibit P5) was illegally procured for it is not clear which provisions of the law between sections 58 and 59 of the CPA was deployed. He also attacked the extrajudicial statement of the 1st appellant for failure to comply with the Chief Justice Guide for the Justices of Peace (the Chief Justice Guide), more so as the appellant never consented and there was no letter from relevant authorities authorizing the recording of that extrajudicial statement Mr. Tuthuru cited the case of Chamuriho Kirenge @ Chamuriho Julius v. Republic (Criminal Appeal No. 597 of 2017) [2022] TZCA 98 (7 March 2022; TanzLII), urging us to expunge the confessions for noncompliance with the recording requirements. As to who was the owner of the stolen carbon materials, Mr. Tuthuru argued that, at page 25 of the record of appeal, Yusuph Kazi is named to be the owner while at page 34 of the same record, the owner is one Hura Rashid. He further added another anomaly in the charge regarding the weight of carbon materials to be 744.40kg in the charge but in the evidence at page 34 of the record of appeal, their weight is 500kg. This infraction renders the charge defective and as it was not amended, it remains unproven. His last submission was on the doctrine of recent possession which, as he sees the chain of custody was not established, the doctrine dies in that capacity. He also attached this argument with problems associated in the certificate of seizure (exhibit PI) regarding the name of the 2n d appellant being Baraka Elisha, but the charge indicates Elisha Baraka. The case of Mabula Limbe v. Republic (Criminal Appeal No. 563 of 2015) [2018] TZCA 677 (6 July 2018; TanzLII) was cited urging us to disvalue that evidence. With that anomaly, together with the variance between the charge and evidence, and along with the illegalities in the procurement of the appellants' confessions, Mr. Tuthuru was of the argument that, the prosecution case was not proved. 5 In reply, Ms. Mushi opposed the appeal on account that, much as she conceded on variance between the charge and the evidence of PW2 on the weight and value of carbon materials, yet it was not fatal because it is not among the ingredients of the offence of armed robbery. According to PW2, weight increase was due to water in preservation chambers of carbon materials. As to who was the owner of the said carbon materials, Ms. Mushi submitted that, Hura Rashid is the owner and not one Yusufu Kazi who owns the processing plant. To her argument therefore, the complained evidential contradiction is nonexistence particularly as the charge is in respect of stealing of carbon materials. Regarding extrajudicial statement of the 1s t appellant, Ms. Mushi urged us to expunge it because the appellant was not asked if he was free to record it, thus it was in violation of the Chief Justice Guide. Concerning the doctrine of recent possession, Ms. Mushi argued that, the said carbon materials were identified to be the property of Hura Rashid and were seized from the 2n d appellant who was also present during the search and seizure exercise. The evidence of ASP Daniel Mkoma (PW3) regarding search and seizure of the consignment was corroborated by PW5 one Jonathan Kazungu Majige such that, it was in the residence of the 2n d appellant where the consignment was seized. 6 Since it was stolen, then whoever was found with it, is responsible for the alleged theft. Replying as to whether the prosecution case was proved, Ms. Mushi's approach was twofold. First, was the evidence used to ground conviction, which she took hold of the doctrine of recent possession. Second, the offence proved taking into account that both courts below found gang robbery proven. She quickly pointed out that, since the only evidence connecting the 1st appellant was his cautioned statement which she earlier on urged its expungement, then there is no any other evidence linking the 1st appellant with criminality. She urged us to hold so and allow his appeal. Regarding the 2n d and 3rd appellants, she submitted that, relying on the doctrine of recent possession, the offence of stealing was proved and not gang robbery as found by the two courts below. She synergized her stance on account that, gang robbery is not a cognate offence to armed robbery, but rather, a distinct one calling for distinct elements for proof thereof. In her concluding remarks, Ms. Mushi argued that, the evidence on record proves the offence of theft and neither armed robbery as constituted in the charge nor gang robbery as meted out by the two courts below. She urged us to hold so and dismiss the appeal. Mr. Tuthuru rejoined briefly that, be it armed robbery or theft, as the case may be, there is no evidence to connect all appellants with such criminality. In another attempt to convince the Court to hold so, Mr. Tuthuru argued that, the offence of theft cannot be proved in the absence of the evidence from Yusufu Kazi in whose plant the alleged carbon materials were stolen. He, consequently, concluded that, the appeal has merits and prayed the same to be allowed. In resolving the complaints of the appellants as per the grounds of appeal, our starting point is the basis of conviction which the first appellate court coached it in the following phraseology: "As a matter of fact, the offence was transacted during the night hour and none of the appellants was identified by the witnesses. Their conviction was grounded on their cautioned statement, extrajudicial statement and the recent possession o f the stolen properties." We begin with the 2n d ground of appeal on extrajudicial statement of the 1st appellant. Counsel urged us to expunge it because the appellant was not asked if he was free to record it. We agree with the counsel for the parties because one of the requirements in the Chief Justice Guide is for the suspect to be asked if he is free to record extrajudicial statement. 8 As we stated in Chamuriho Kirenge (supra), such compliance gives comfort that the extrajudicial statement was voluntary. This was not done. That said, we expunge it as urged. As per the findings of the 1s t appellate court, the 1st appellant was held criminally liable basing on his extrajudicial statement. There being no any other evidence to link him with the stolen carbon materials, his appeal is allowed forthwith. As to the cautioned statement of the 3rd appellant (exhibit P5) which formed the basis of complaint in the 2n d ground, we take note that, both courts below relied on it to ground conviction. The 1st appellate court praised that confession because it gave a full and comprehensive account on how theft occurred, from the recruitment of the 1st appellant, surveillance in the processing plant and ultimately the execution, that is, stealing. At page 403 of the record of appeal, it was stated: "As I have already asserted, the incriminatory evidence of the suspect is the most refined and sanitized version of account of what transpired." Mr. Tuthuru raised a complaint in the first ground that, the cautioned statement should not have been deployed because the appellants were unfairly heard on account of failure to cross examine during the inquiry. We take a different approach. As indicated in the record of appeal, the appellant objected the admission of the cautioned statement because it was illegally obtained. We note further that, the trial court conducted an inquiry to clear the complained legal aspects. The question which quickly drew out attention is whether the trial court properly resolved the complained anomalies as to require the praising of the incriminating evidence from the 3rd appellant. This compelled us to reappraise the record of appeal at page 109 through 110 where the trial court composed a ruling resolving the objected cautioned statement that: "Since the fourth accused alleged to have been tortured in the presence of his elder brother Mathayo Thomas who lives at Katoro, failure to call him to testify causes doubt as to whether he was in fact tortured to confess. In that vein, I do hold that there is no proof that the fourth accused was tortured to confess. Other issues will be discussed in the judgment" Our take in the above ruling is threefold. One that, the ruling did not resolve the objection on the admissibility of the cautioned statement. Two, that the most it did was to shift the burden of proof to the appellant to prove voluntariness of the confession and three, that, the prosecution evidence alone was considered in the inquiry to determine the objection. We stated in Gibe Masasila v. Republic (Criminal Appeal No. 241 of 2024) [2026] T2CA 86 (23 February 2026;TanzLII) that, the trial court is legally bound to resolve the objection in the admissibility of cautioned statement by following the requisite principles, including the burden of proof that, the cautioned statement was voluntarily procured rests to the prosecution and the standard is beyond reasonable doubt, unlike in the instant case where the trial court held that since the appellant failed to call his brother Mathayo Thomas who was present when the cautioned statement was recorded, then he was not tortured in the course of procuring the said confession. Again, in the ruling, the trial court made a finding that, the appellant was not tortured, meaning that, the confession was voluntary and reserved other matters to be determined in the judgment. Nonetheless, towards the conclusion of judgment, what was reserved never surfaced. Even if it was, an inquiry/a mini trial, being an independent undertaking in a criminal trial, should be self-satisfactory and conclusive and should resolve all complaints raised. Had the first appellate court considered the manner through which the objected cautioned statement was treated during the inquiry, it would have concluded that, its admissibility was not determined in the manner required and therefore unamenable to ground conviction. Accordingly, the cautioned statement of the 3rd appellant is expunged. This therefore 11 resolves the 1s t and 2n d grounds of appeal. As observed by the 1st appellate court, the 3rd appellant's connection to this case was based on his cautioned statement. That being the case, there is no any other material within which his criminal responsibility rests. Accordingly, the appeal against the 3rd appellant is meritorious and we proceed to allow it. The remaining four grounds boil down to one issue, that is, whether there is sufficient evidence to sustain conviction basing on the doctrine of recent possession in respect of the 2n d appellant. The law is that, for the doctrine to apply, it must be proved beyond reasonable doubt that, one, the stolen property was found with the suspect. Two, it belongs to the complainant. Three, it was recently stolen from the said complainant and four, it must relate to the charge. See Mohamed Said Hassan v. Republic (Criminal Appeal No. 410 of 2015) [2016] TZCA 51 (16 April 2016; TanzLII) Applying the above features in the instant matter, our starting point is the rejoinder submission of Mr. Tuthuru that, for the offence of theft to be proved, Yusufu Kazi who owned the processing plant, should have been summoned to testify. What we take from that rejoinder submission is the concession by Mr. Tuthuru that, Yusufu Kazi is the owner of the 12 processing plant. This takes us to the holding that, the owner of the stolen carbon materials is Hura Rashid and not Yusufu Kazi. Next is whether the said carbon materials were in the hands of the 2n d appellant. The evidence is from PW5 Jonathan Kazungu Majige, a hamlet chairperson, who witnessed search and seizure conducted by ASP Daniel Mkoma (PW3) in the presence of the 2n d appellant. The trio together with Hura Rashid Kazi (PW2), John Nyambiro and Joseph Kasindi signed the certificate of seizure (exhibit PI) signifying that, carbon materials identified by PW2 to be his, were found in the room of the 2n d appellant through search. We note the concern of Mr. Tuthuru that, the name Elisha Baraka Elisha appearing in exhibit PI differs from that of Elisha Baraka contained in the charge. As argued by Ms. Mushi, this is a minor and curable irregularity which does not vitiate the charge. Again, this goes along with the complaint of the appellants regarding the weight of the carbon material to be 744.40kg in the charge and 500kg in the evidence. This infraction, in our view, does not create variance between the charge and evidence because the uncontroverted evidence of PW2 at page 34 of the record of appeal is such that, water preservation method in chambers is what increased weight He said: 13 "The carbon we put in chamber was 500kg. Since carbon once put in the chambers water is added, it is obvious that weight increases." With this evidence, the conclusion we make is that, the carbon materials forming the contents of the charge and which was found in possession of the 2n d appellant, was identified to be the property of PW2. The explanation available in the evidence is that, the carbon materials fell into the appellant's hands through illegal means. Therefore, the doctrine of recent possession was properly applied to ground conviction. As we alluded to, both courts below found the evidence assembled proved the offence of gang robbery and not armed robbery on account that, gang robbery is a cognate offence to armed robbery. In the Director of Public Prosecutions v. Lengai Ole Sabaya & Others (Criminal Appeal No. 231 of 2022) [2023] TZCA 17853 (17 November 2023; TanzLII), we stated the following as to whether gang robbery is an offence cognate to armed robbery: "For the avoidance of doubt, the trial court also erred in substituting the offence of gang robbery for it is not a cognate and minor offence to the offence o f armed robbery. As rightly put by the appellant, both armed robbery under section 287A of the Pena! Code and gang robbery under section 14 285 (2) of the Pena / Code, attract minimum jail term of thirty years with or without corporai punishment on conviction. In the premises, gang robbery cannot be a cognate and minor offence to armed robbery. As we held in Richard Estomihi Kimei (supra), substitution moves from a greater offence to a minor one. Thus, in substituting the conviction of the offence of gang robbery for that of armed robbery, the trial court strayed into a serious error." Applying the above principle as to what amounts to minor and cognate offence in the case before us, we agree with Ms. Mushi that, the evidence on record proved the offence of theft and neither armed robbery as constituted in the charge nor gang robbery as meted out by the two courts below. In the circumstances, gang robbery was wrongly substituted for that of armed robbery and instead, the offence of theft is substituted hereof. As to the sentence for theft, section 265 of the Penal Code provides for general punishment of theft, that: "A person who steals anything capable of being stolen commits theft, and shall be liable, unless owing to the circumstances of the theft or the nature of the thing stolen, some other punishment is provided, to imprisonment for seven years." On that note, the maximum sentence for the offence of stealing is seven (7) years. We thus quash the sentence of thirty (30) years and substitute in lieu thereof with (3) three years' imprisonment. Since the said sentence has already been served, we order immediate release of the appellants from custody, unless, there are other lawful reasons to justify their stay thereto. DATED at DODOMA this 17th day of April, 2026. The Judgment delivered virtually this 22n d day of April, 2026 in the presence of Appellants in person, Mr. Prince Massawe, learned State Attorney for the Respondent and Ms. Mariam Kivuma, Court Clerk; is hereby certified as a true copy of the original. M. C. LEVIRA JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL W. A. HAMZA DEPUTY REGISTRAR COURT OF APPEAL 16