Kobina Kyei Danso vs Republic (Criminal Appeal No. 63 of 2024) [2026] TZCA 405 (13 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: SEHEL, J.A., MGONYA, 3.A. And KHAMIS. J.A.^ t CRIMINAL APPEAL NO. 63 OF 2024 KOBINA KYEI DANSO ..... ............. ....................... ................ APPELLANT VERSUS THE REPUBLIC ......................... .................... ................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Dar es Salaam) (Kihwelo. J.^ dated the 13th day of December, 2019 in Criminal Sessions Case No. 67 of 2016 JUDGMENT OF THE COURT 17th February & 13t hApril, 2026 MGONYA. 3.A.: The Appellant, KOBINA KYEI DANSO, was charged before the High Court of Tanzania at Dar es Salaam with the offence of trafficking in narcotic drugs, contrary to section 16(l)(b) of the Drugs and Prevention of Illicit Traffic in Drugs Act, Cap. 95 [R. E. 2002] as amended by the Written Laws (Miscellaneous Amendments) (No. 2) Act, No. 6 of 2012. It was alleged that on the 23r d day of March 2014, at the Julius Nyerere International Airport (JNIA) area within Ilala District in the Dar es Salaam Region, the appellant was found trafficking in narcotic drugs,

namely, Heroin Hydrochloride, weighing 342.11 grams and valued at TZS 205,266,600.00. After hearing the testimony of eleven (11) prosecution witnesses and receiving together with nine (9) prosecution exhibits and the evidence of the appellant, who testified as the sole defence witness, the trial court (Kihwelo, J., as he then was) was satisfied that, the prosecution had proved its case beyond reasonable doubt. Consequently, the appellant was convicted and sentenced to twenty (20) years' imprisonment. Being dissatisfied with both the conviction and the sentence, the appellant has now lodged this appeal. The background facts that culminated in the appellant's arraignment, conviction and sentence may be briefly summarized as follows: On 23rd March, 2014 while on duty at the departure lounge of JNIA, Burhan Hamis (PW4) and Trasius Dionis (PW6), both Tanzania Airport Authority security officers engaged in passenger baggage screening, became suspicious of the contents of a blue bag marked Exh. P4. PW4 immediately halted the scanning process and summoned PW6 to jointly inspect the bag. Both officers independently formed the view that the bag warranted further scrutiny. PW6 thereafter kept the

bag under observation until its owner appeared; the appellant, a Ghanaian national, duly collected it and expressly confirmed to PW6 that the bag belonged to him. Acting on their suspicion PW4 and PW6 summoned officers from the Anti-Narcotics Unit, namely Inspector Qamara (PW10), Assistant Inspector Dickson (PW8) and Sergeant Burhani (PW7). A thorough search of the blue bag was then conducted in their presence, resulting in the discovery of four packets wrapped in silver foil and sealed at the bottom of the bag. Each packet contained a further plastic wrapping enclosing a creamy substance. The substance was subsequently analyzed by the Government Chemist, Ziliwa Malichibya (PW1), who certified it to be Heroin Hydrochloride weighing 3,421.11 grams (Exh. PI). The drugs were seized and remained in lawful custody until formally tendered in evidence. In addition, PW8 and PW10 seized the appellant's two passports, one issued by the United States of America and the other by the Republic of Ghana, together with an air ticket issued by Swiss Airlines. A formal certificate of seizure in respect of these items was prepared and admitted into evidence as Exh. P8.

In his defence, the Appellant categorically denied ever having been in possession of the blue bag and maintained that he first became aware of its allegedly incriminating contents only during the course of the trial. Being dissatisfied with both the conviction and the sentence imposed, the appellant has lodged the present appeal, which is grounded on twelve grounds: eleven grounds set out in the memorandum of appeal filed on 6th February, 2024 and one additional ground contained in the supplementary memorandum of appeal filed on 22n d July, 2024. At the hearing of the appeal, the appellant appeared in person unrepresented, while the respondent the Republic, was represented by learned Senior State Attorneys, Msses. Florida Wenceslaus and Agatha Lumato. During the hearing, the appellant prayed for, and was granted, leave of the Court to abandon all the grounds contained in the memorandum of appeal save for the first and tenth grounds. He further prayed for, and was granted, leave to file a supplementary memorandum of appeal by adding one additional ground, thereby raising the total number of grounds of appeal to four.

The appellant's submissions on the grounds of appeal commenced with the first ground, which he articulated as follows: "That the trial Judge erred in convicting the appellant on a defective charge as: The ingredients o f the offense were not disclosed in the particulars of the offense i.e. importation , exportation > manufacturing, etc., the omission o f which prejudiced the appellant in terms of preparation and marshaling a proper defence hence his plea invalid." In this ground of appeal, the appellant contended that the charge was defective and contravened the mandatory provisions of section 132(a)(i) of the Criminal Procedure Act, Cap. 20 R.E. 2002 (hereinafter referred to as "the CPA"), (now section 135 of the CPA, R.E. 2023). He argued that the particulars of the offence failed to disclose the essential elements of the charge and lacked sufficient details to inform him adequately of the case he was required to meet. The appellant submitted that it is a fundamental principle of criminal justice, firmly entrenched in our criminal procedure, that an accused person must be fully and precisely apprised of the nature and substance of the allegations against him. This is essential to enable him to make an informed plea and to prepare an effective defence. In

support of this contention, the appellant relied on sections 132 and 135(a) of the CPA, (now sections 135 and 138 respectively), which stipulate that every charge or information must contain a statement of the offence and such particulars as may be necessary to give the accused reasonable information as to the nature of the offence with which he is charged. He referred us to the decision of the Court In Mussa Mwaikunda v. Republic [2006] T.L.R. 387, where it was emphatically held that the particulars of a charge must disclose all the essential ingredients of the offence. Failure to do so, renders the charge incurably defective, as it deprives the accused of the minimum safeguards of a fair trial, including the ability to understand the charge, enter a proper plea, follow the proceedings intelligently, and mount an effective defence. Tine appellant maintained that such a fundamental omission cannot be cured by invoking the provisions of section 388 of the CPA (now section 411 of the R.E. 2013) or any similar curative provision, and that the defect vitiates the entire proceedings. The appellant concluded his submissions on this ground by asserting that he was materially prejudiced by the omission in the charge of critical particulars constituting the essential elements of the offence.

In reply, learned Senior State Attorney Ms. Wenceslaus opposed the first ground of appeal. She submitted that the charge was not defective. She contended that the offence of trafficking in narcotic drugs or psychotropic substances is broadly defined under the relevant statute and encompasses a wide range of acts, including importation, exportation, buying, selling, giving, supplying, storing, production, manufacturing, conveyance, delivery, distribution, and even mere possession of such substances. Ms. Wenceslaus further submitted that the appellant was apprehended at JNIA while in possession of the alleged narcotic drugs and in the process of travelling to Canada. She argued that his conduct clearly fell within the statutory definition of "possession" and "exportation", and therefore constituted trafficking in narcotic drugs as defined by law. She referred the Court to sections 135 and 138 of the CPA, which govern the framing of charges and require that a charge shall contain a statement of the offence together with such particulars as may be necessary to give the accused reasonable notice of the matter with which he is charged. She maintained that, regarding the contents of the charge sheet and the evidence adduced at the trial, the appellant was sufficiently appraised of the nature and particulars of the

offence, including its essential elements, and suffered no prejudice or want of fair notice. To reinforce her submissions, the learned Senior State Attorney relied on the decision of this Court in Masalu Kayeye v. Republic (Criminal Appeal No. 120 of 2017) [2020] TZCA 302. She accordingly urged the Court to find the ground of appeal unmeritorious and dismiss it. We have carefully considered the rival submissions of both parties on this ground of appeal. We have also meticulously examined the appellant's charge sheet, the material portion of which is reproduced below: "STA TEMENT OF OFFENCE TRAFFICKING IN NARCOTIC DRUGS; Contrary to Section 16 (1) (b) o f the Drugs and Prevention o f Illicit Traffic in Drugs Act [Cap. 95 R.E. 2002] as amended by Written Laws (Miscellaneous Amendment) (No.2) Act no. 6 of 2012 . PARTICULARS OF OFFENCE KOBINA KYEI DANSO, on or about 23rd day o f March , 2014 at JULIUS NYERERE 8

INTERNATIONAL AIRPORT area within Itala District in the City and Region o f Dar es Salaam did Traffic in narcotic drugs nameiy: HEROIN HYDROCHLORIDE weight 3421.11 grams valued at Tanzania Shillings Two hundred and Five Million Two Hundred Sixty Six thousand Six Hundred Only (Tshs. 205,266,600/=)." We have undertaken a further and detailed examination of the relevant statutory provisions, with particular attention to the proper interpretation and scope of the term "trafficking" as particularized in the charge sheet. Section 2 of the Drugs and Prevention of Illicit Traffic in Drugs Act [Cap. 95 R. E. 2002] defines the term "trafficking" inter alia as follows: " Trafficking" means the importation ; exportation, buying, sale, giving, supplying, storing, possession , production, manufacturing, conveyance, delivery or distribution, by any person o f narcotic drug or psychotropic substance any substance represented or held out by that person to be a narcotic drug or psychotropic substance or making o f any offer ..... " [Emphasis added]

Having carefully examined the record of appeal, it appears that during the examination-in-chief of PW3, and upon reference being made to the Swiss Airways air ticket bearing the appellant's name (admitted in evidence as Exhibit P7), the witness stated: "The travel date was 23/3/2024 on Sunday. His travel time was 22:10 hrs. He was traveiing from Dar es Salaam International Airport, Tanzaniato Zurich, Switzerland, and then from Zurich, Switzerland, and then from Zurich to Toronto, Ontario, Canada ." The above evidence adduced at trial unequivocally demonstrates that the appellant harboured a clear intention to travel to Canada. This intention is strongly corroborated by the air ticket issued in the name of Kobina Kyei Danso for travel on Swiss Airways, which was properly admitted into evidence as Exh. P7. In view of this uncontroverted documentary proof, it is beyond reasonable doubt that the appellant intended to export the narcotic drugs (Exh. PI), which were concealed in his blue bag, to Canada by carrying the said bag personally during the course of the planned international journey. The evidence further establishes that the appellants acts of possession and intended exportation of the narcotic drugs (or 10

psychotropic substances) fall squarely within the statutory definition of "trafficking" as provided under the relevant provisions of the Drug Control and Enforcement Act. These acts constitute the essential ingredients of the offence of trafficking in narcotic drugs or psychotropic substances, as particularized in the charge preferred against the appellant. The totality of the evidence thus provides compelling and sufficient proof of the appellant's specific intention to commit the offence of trafficking through the possession coupled with exportation. Consequently, the appellant was rightly charged with, and is liable to be convicted of, the offence of trafficking in narcotic drugs or psychotropic substances. In the case of Masalu Kayeye v. Republic (supra), quoting Jamal Ally @ Salum v. Republic, Criminal Appeal No. 52 of 2017 (unreported), the Court held: "Where particulars o f the offence are dear and enabled the appellant to fully understand the nature and seriousness o f the offence for which he was being tried for, where the particulars of the offence gave the appellant sufficient notice about the date when offence was committed, the village where the offence was committed, the nature o f the offence, the name o f the 11

victim and her age and where there is evidence at the trial which is recorded giving a detailed account o f how the appellant committed the offence charged and thus any irregularities over non-citations and citations o f inapplicable provisions in the statement o f the offence are curable under section 388(1) o f the Criminal Procedure Act, Cap. 20 Revised Edition 2002 (the CPA). " [Emphasis added] We concur with the established principle that any defect or irregularity in the charge may be cured, inter alia , by the evidence adduced on record. In the instant case, the circumstances align precisely with this principle. Accordingly, we hold that the defect in question was not fatal to the proceedings and is curable pursuant to section 411(1) of the Criminal Procedure Act. Regarding the question of whether the appellant suffered any prejudice as a result of the alleged defect in the charge, it is our considered opinion that no such prejudice occurred. The record clearly demonstrates that the appellant fully comprehended the charge as framed, entered a plea of not guilty thereto, and was at all material times represented by counsel. Furthermore, the appellant was afforded 12

the opportunity to, and did in fact, present a full defence to the offence alleged. These circumstances establish beyond doubt that the appellant was not in any manner hampered, misled, or disadvantaged in the conduct of his defence or in the fairness of the trial proceedings. Consequently, the alleged irregularity in the charge did not occasion any miscarriage of justice or infringe upon the appellant's right to a fair trial. From the preceding discussion and evaluation of the record, we are fully satisfied that the framing of the charge alleging trafficking in narcotic drugs/substances against the appellant was lawfully and correctly done in accordance with the provisions of the relevant law. In the premises, we find no substance in the first ground of appeal, which is accordingly dismissed for want of merit. Another ground of appeal is the first ground in the supplementary memorandum of appeal. On this ground, the appellant contends as follows: "That the learned trial Judge grossly erred in law in holding the appellant's conviction based on the evidence o f air ticket (Exh. P7) while the same was not listed as an exhibit at the preliminary and/or committal proceedings 13

In support of this ground of appeal, the appellant contends that his conviction was founded upon the air ticket tendered as Exh, P7, which was irregularly and unlawfully admitted into evidence. He submits that, section 308(1) of the CPA imposes a mandatory requirement that, before any additional witness is called or any additional exhibit is tendered, the prosecution must furnish the defence with reasonable notice in writing. To substantiate this submission, the appellant relies upon the authority of Hamisi Meure v. Republic (1993) TLR 213. He maintains that Exh. P7 was nevertheless admitted notwithstanding that it did not appear on the list of exhibits prepared at the preliminary hearing or committal proceedings. In this regard, the appellant draws the Court's attention to pages 67 - 68 of the record of appeal, which record that on 23r d March, 2014 PW3 (the exhibit keeper) received from PW6 only the following items: one large blue bag, a Ghanaian passport issued in the appellant's name, and one Nokia mobile telephone. The air ticket in question was conspicuously not part of that inventory. The appellant submitted that the air ticket and a small handbag containing a laptop were handed over to PW3 in 2016, which was two years after the relevant events. Based on this contention, the appellant 14

prayed that the said items be expunged from the record and that the ground of appeal be upheld. In response to this ground, the learned Senior State Attorney conceded the appellant's position in part, acknowledging that Exh. P7 was inadmissible. She submitted that the exhibit had not been listed among the intended exhibits during the committal proceedings, as required for items proposed to be tendered at trial. Notwithstanding this irregularity, she pointed out that the appellant had himself admitted during the proceedings that he was traveling from Tanzania to the USA on the material day. Furthermore, the Senior State Attorney informed the Court that, at the time PW3 tendered the air ticket in evidence, the appellant's advocate raised no objection whatsoever. Consequently, the fact of the appellant's travel on that date remained undisputed. In light of these circumstances, she left the determination of the issue entirely to the Court's discretion. The Court has carefully and duly considered the detailed submissions advanced by the appellant and that of the learned Senior State Attorney in respect of this matter. The ground of appeal stem from the application and interpretation of section 263(2) of the CPA, which provides as follows: 15

” 263-0).... (2) Upon appearance o f the accused person before it, the subordinate court shaii read and explain or cause to be read to the accused person the information brought against him as well as the statements or documents containing the substance o f the evidence o f witnesses whom the Director o f Public Prosecutions intends to caii at the trial" [emphasis added]. The relevant statutory provision obliges the committal court to read over and explain to the accused person the substance of the statements or documents containing the evidence of the witnesses whom the prosecution intends to call at trial. This obligation has been judicially construed to extend beyond documentary evidence and to encompass real (physical) exhibits as well. Accordingly, real exhibits must likewise be expressly listed and disclosed during the committal proceedings as part of the evidence upon which the prosecution proposes to rely at the trial. In illustration of this principle, this Court, in Said Shababi Malikita v. Republic, Criminal Appeal No. 523 of 2020 (unreported), relied upon the authoritative statement of the law articulated in 16

Director of Public Prosecutions & Others v. Sharif Mohamed @ Athumani & 6 Others, Criminal Appeal No. 74 of 2016, and held as follows: “ Although the context In the decision in Sharif Mahamed's case is a document or documents, we want to believe that it extends to the listing o f physical exhibits, where the accused will be informed o f [such exhibits] expected to be evidence against him or her ." This provision imposes a mandatory procedural obligation during committal proceedings, ensuring that the accused is fully apprised of the charge(s) and the evidential basis upon which the prosecution proposes to proceed at trial. Non-compliance with this requirement has been held in various authorities to constitute a material irregularity capable of vitiating subsequent proceedings. Furthermore, and with reference to this Court's decision in Remina Omary Abdul v. Republic, Criminal Appeal No. 189 of 2020, as well as the earlier unreported decision in Grace Teta Gbatu v. Republic, Criminal Appeal No. 84 of 2019, we reiterated the following principle: 17

'Taking into consideration the purpose of section 246 (2) o f the CPA, that is; to let the accused person know before hand the substance, kind and nature o f the evidence the prosecution intends to lead against him at the trial, the Court interpreted the provision in question and insisted that, under thatprovision, it is not only documentary exhibits which are required to be listed or mentioned during committal proceedings but also physical exhibits ." In light of the foregoing settled position of the law, we find merit in the appellant's complaint. The prosecution's failure to list or disclose Exh. P7 to the appellant at the committal stage, in compliance with the mandatory requirements of section 263(2) of the CPA, constituted a fatal procedural irregularity. Accordingly, we uphold this ground of appeal and order the said exhibit to be expunged from the record, having been improperly admitted. Next for our consideration is the appellant's second ground of appeal in the supplementary memorandum of appeal states: "The case was not proved beyond reasonable doubt concerning the chain o f custody and the whole case in general." 18

This is the additional ground of appeal which was incorporated as a second ground in the supplementary memorandum of appeal, following the grant of leave by the Court when the appeal came on for hearing. In the circumstances, the appellant, appearing without legal representation, advanced no submissions in support of that ground, thereby placing the onus on the respondent to address it in reply. In response to this ground of appeal, Ms. Wenceslaus, submitted that the prosecution had discharged its burden at trial by proving the case against the appellant beyond reasonable doubt, thereby justifying the sustenance of the conviction. To substantiate this position, she relied on the testimony of PW4, who stated that the appellant's bag subjected to security screening at the conveyor belt was flagged for containing suspected substances. Subsequent forensic examination by PW1 confirmed these substances to be Heroin Hydrochloride, with a net weight of 342.11 grams and an estimated street value of TZS 205,266,600.00. According to the record and PW4's evidence, the suspected drugs were duly handed over to PW3 for safekeeping, then forwarded to PW1 for scientific analysis. Upon confirmation of the substance as Heroin Hydrochloride, the exhibit was returned to PW3, who ultimately produced it in court as Exh. PI. 19

This sequence, she contended, demonstrated an unbroken and intact chain of custody. Further reinforcing the integrity of the chain of custody in respect of Exh. PI, the learned Senior State Attorney emphasized that, PW4, PW6, PW8, and PW9 ail of whom participated in the search of the appellant at JNIA, signed the certificate of seizure marked as Exh. P8. She maintained that no interference or tampering with the exhibit occurred, as alleged by the appellant. In support of this assertion, she cited the case of Abas Kondo Gede v. Republic (Criminal Appeal No. 472 of 2017) [2020] TZCA 391, where the Court held that the chain of custody may be satisfactorily established even in the absence of a complete documentary trail, provided credible oral evidence confirms that the exhibit remained unaltered and untampered. Addressing the appellant's contention that the prosecution failed to prove its case beyond reasonable doubt, the learned Senior State Attorney referred to the cumulative testimony of the prosecution witnesses. She argued that this evidence sufficiently established: (i) that the bag containing the substances belonged to the appellant; and (ii) that the contents were scientifically verified as Heroin Hydrochloride.

Accordingly, all essential elements of the offence were proved to the requisite criminal standard. In light of the foregoing, she prayed that the Court dismiss this ground of appeal in its entirety, together with the whole appeal. Having duly considered the submissions advanced by both parties on this ground of appeal, particularly in the chain of custody, this Court notes that there are numerous authoritative decisions establishing clear guidelines and prerequisites for the examination and evaluation of the chain of custody pertaining to exhibits tendered in evidence. In the case of Paulo Maduka and 4 Others v. Republic, Criminal Appeal No. 110 of 2007 (unreported), the Court elaborated on the significance and requirements of a proper chain of custody, stating as follows: “ By chain o f custody' we have in mind choroiogicai documentation and or paper trait showing the seizure , custody, control, transfer, analysis and disposition o f evidence , be it physical or electronic. The idea behind recording the chain o f custody, it is stressed, is to establish that the alleged evidence is in fact related to the alleged crime rather than, for instance having planted fraudulently to make someone appear guilty." 21

See also, Zainab Nassor @ Zena v. Republic, Criminal Appeal No. 348 of 2015, Joseph Leonard Manyota v. Republic, Criminal Appeal No. 485 of 2015, Makoye SamweI @ 15 Kashinje and Kashindye Bundala v. Republic, Criminal Appeal No. 32 of 2014; Abas Kondo Gede v. Republic, Criminal Appeal No. 472 of 2017 and Chacha Jeremiah Murimi and 3 Others v. Republic, Criminal Appeal No. 551 of 2015 (all unreported). It is sufficient, as consistently established in the various decisions of this Court, that the chain of custody is duly proven where there exists proper and reliable documentation recording the complete chronology of events pertaining to the handling of an exhibit from the point of seizure, through its custody, control, and any transfers, up to the moment it is produced and tendered as evidence before the court at trial. The authorities cited above further clarify that, while the chain of custody may ordinarily be demonstrated through a continuous trail of documentation, such documentation is not the sole or exclusive means of proof in relation to exhibits. While other pertinent considerations must also be duly weighed, courts are nevertheless enjoined to exercise utmost caution in this respect. The essential prerequisites for establishing an unbroken chain of custody in respect of an exhibit have 22

been authoritatively elucidated and settled by this Court in Director of Public Prosecutions v. Stephen Gerald Sipuka, Criminal Appeal No. 373 of 2019 (unreported) [2021] T2CA 330, as follows: "..to show to a reasonable possibility that the item that is finally exhibited in court and relied on as evidence, has not been tampered with along the way to the court . " In the instant case, the principal issues for determination are twofold. First, whether the chain of custody of the exhibits remained unbroken and intact from the moment of seizure, through the stage of laboratory analysis, and until the exhibits were formally tendered in court. Second, whether the prosecution successfully discharged its burden of proving the case beyond a reasonable doubt, thereby justifying the upholding of the appellant's conviction. The prosecution's evidence regarding the chain of custody of Exh. PI establishes, on a balance of probabilities as demonstrated through the witnesses' testimony, a continuous and unbroken sequence of handling from the point of seizure to its forensic examination. According to the prosecution's case, Exhibit PI was seized from the accused person at JNIA on 23rd March 2014. Following the seizure, the exhibit was initially secured and stored at the JNIA police sub-station. It was

subsequently collected and transported from there to the Anti-Drugs Unit (ADU) offices by ASP John Qamara (PW9), who duly handed it over to SP Neema (PW3), the designated exhibit keeper. The record further shows that PW3 took custody of the exhibit, secured it in the strong room under lock and key, and later, in the presence of an independent witness, Zainab Duwa Maulana (PW5), as well as the appellant, proceeded to properly pack and seal the substances constituting Exh. PL The packing and sealing process was conducted in accordance with standard evidentiary safeguards to preserve the integrity of the exhibit. Thereafter, PW3, accompanied by PW9, personally conveyed Exh, PI to the Government Chemist Laboratory Agency (GCLA). Upon arrival, PW3 handed over the sealed exhibit to PW1, the analyst at GCLA. PW1 then performed the requisite weighing of the substances, followed by both preliminary screening and confirmatory chemical analysis. Subsequently, PW1 repackaged, sealed, and stamped Exh. PI prior to relinquishing custody thereof to PW3 upon completion of all requisite procedures at the Government Chemist Laboratory (GCLA). PW3 thereafter returned Exh. PI to the ADU offices, where it was duly entered into the exhibit register, secured 24

in the strong room, and ultimately produced and exhibited before the trial court by PW1. This sequence of events is clearly and consistently corroborated by the oral testimony of PW3 (the exhibit keeper), PW5 (the independent witness present during packing and sealing), PW9 (who effected the initial transfer from JIMIA and accompanied the delivery to GCLA) and finally PW1 who tendered the exhibit in court. Under these circumstances, we are of the firm view that no material discrepancies or breaks in the chain appear on the record that would cast doubt on the authenticity, identity, or integrity of Exh. PI as the substance seized from the accused. On the other hand, all prosecution witnesses who participated, directly or indirectly, in the seizure, forensic analysis, or handling of Exh. PI at any material stage, were able to positively identify the exhibit in court by reference to its distinctive features and characteristics. These witnesses comprised of PW1, PW3, PW4, PW5, PW6, PW7, PW8, PW9, PW10, and PW11. In light of the foregoing, the Court is satisfied that the prosecution has adduced ample and credible testimonial evidence establishing the chain of custody and successive transfers of Exh. PI. 25

It is a well-established principle that the chain of custody may be proved through the oral testimony of witnesses who were present during the handing over of the exhibit, provided the court finds such witnesses credible and worthy of belief. This principle finds support in the jurisprudence of the Court as affirmed in Charo Said Kimilu and Mbwana Rua Kubo v. Republic, Criminal Appeal No. 11 of 2015 (unreported). In Chacha Jeremiah Murimi & 3 Others v. Republic, Criminal Appeal No. 551 of 2015 (unreported), this Court held that the establishment of an unbroken chain of custody is most reliably achieved through proper documentation, as previously articulated in Paulo Maduka and Others v. Republic, (supra), and subsequently applied in Makoye Samwel @ Kashinje and Kashindye Bundala v. Republic, Criminal Appeal No. 32 of 2014 (unreported). Having carefully considered the evidence adduced, we are satisfied that the movement of Exh. PI from the point of seizure through successive handlers until its production and admission in court discloses no break in the chain of custody. The cumulative strength of the prosecution's evidence leaves no reasonable possibility that Exh. PI was tampered with or interfered with in any manner, as alleged by the appellant. 26

Turning to the appellant's contention that the prosecution failed to prove its case beyond a reasonable doubt, it is undisputed that the appellant was arrested at JNIA while attempting to travel to Canada. The appellant further does not contest that his travel documents were seized by police officers. Nor do we overlook the pivotal role of the prosecution's eyewitnesses in linking the appellant's arrest to the charged offence, as fully elaborated in the foregoing analysis. These witnesses provided a coherent account encompassing the arrest and the recovery of Exh. PI, and its subsequent handling, which collectively affirm the integrity of the chain of custody. In light of the entire record, we are persuaded that the appellant's defence, as reflected in the appeal record, does not engender any serious or reasonable doubt concerning the prosecution's evidence. That evidence unequivocally establishes the appellant's direct involvement in the commission of the offence for which he was charged and convicted. In the premises, we find the appellant's submissions on this ground to be devoid of merit and accordingly dismiss the same. We now turn to the final and tenth ground of appeal in the original memorandum of appeal, which is worded as follows: 27

"That the trial Judge erred in law by convicting the appellant without considering the mandatory terms of section 172 (2) (c) of the Criminal Procedure Act [Cap. 20 R. E. 2002]. Considering that the appellant was arrested on the 2 Jd day of March, 2014 and convicted on the 13th day of December 2019 as the time which he spent as a remand was not considered when the trial Judge was convicting the appellant." In respect of this ground of appeal, the appellant contends that, following a full trial, he was convicted and sentenced to twenty (20) years' imprisonment together with a fine of Tshs. 615,799,800/=; being three times the market value of the narcotic drugs he was convicted of trafficking, which drugs were valued at Tshs. 205,266,600/=. Pursuant to the mandatory provisions of section 178(2)(c) of the CPA, the appellant submits that he was remanded in custody from 23r d March 2014 until the date of judgment on 13th December 2019, a period of approximately five (5) years, nine (9) months, and twenty (20) days pending the determination of his case. He avers that this issue was expressly raised by the learned defence advocate in mitigation during the sentencing hearing, as appears at page 317 of the record of 28

proceedings, yet the learned trial Judge failed to apply his mind to the said statutory provision and made no deduction or allowance in respect thereof. In support of this submission, the appellant relies on the authority of Sano Sadiki & Another v. Republic (Criminal Appeal No. 623 of 2021) [2023] TZCA 17476. In respect of this ground of appeal, the appellant respectfully prayed that this Honorable Court exercise its revisional jurisdiction pursuant to section 6(2) of the Appellate Jurisdiction Act and direct the deduction of the said period spent in remand custody from the imposed sentence of twenty years' imprisonment. In response, Ms. Wenceslaus, on behalf of the respondent, had a brief submission. She contended that throughout the period of the appellant's pre-conviction detention in remand custody, he was entitled to the presumption of innocence. Consequently, the sentence ought properly to commence from the date of conviction. The learned Senior State Attorney further referred the Court to the case of Khamis Said Bakari v. Republic (Criminal Appeal No. 359 of 2017) [2020] TZCA 259, wherein a substantially similar grievance was raised and ultimately dismissed by the Court. She therefore urged the Court to adopt the same approach and dismiss this ground of appeal accordingly. 29

In deliberating upon this ground, the Court has had regard to the statutory guidance on sentencing provided under section 178 of the Criminal Procedure Act. The provision of particular relevance to the present matter is section 178(2)(c), which provides: "178. - (1) Whenever a subordinate courtpasses a sentence which requires confirmation, the court imposing the sentence may in its discretion release the person sentenced on bail pending confirmation or such order as the confirming court may make. (2) Where - (a) - n/a- (b) - n/a- (c) a person has been in remand custody for a period awaiting his trial, his sentence whether it is under the Minimum Sentences Act, or any other law, shall start to run when such sentence is imposed confirmed, as the case may be, and such sentence shall take into account the period the person spent in remand” [emphasis added]. 30

We concur with the position advanced by the learned Senior State Attorney that, upon conviction and the imposition of sentence, the sentence commences to run immediately once it has been confirmed, where confirmation is required. Nevertheless, pursuant to the applicable statutory provision, section 178(2)(c), the sentence must duly reflect credit for any period the convicted person spent in remand custody prior to sentencing. In the present appeal, it is undisputed that the appellant was arrested on 23r d March 2014 and remained in continuous remand custody until 13th December, 2019, when he was sentenced to a term of twenty years' imprisonment. It is a fact that, at the time the sentence was imposed, section 178(2)(c) of the CPA was in full force and effect. Given these undisputed facts and the clear mandatory language of the statute, "shall take into account the period the person spent in remand", the learned trial Judge was obliged to deduct or otherwise account for the appellant's pre-sentence remand period when determining the effective sentence to be served. Failure to do so constitutes an oversight in applying the statutory requirement that remand time be considered in computing the sentence. This omission constitutes a material irregularity in the sentencing process. While it 31

may have been an inadvertent oversight {lapsus calami or error of law), the trial court ought to have been reminded of this relevant factor, particularly during the mitigation stage. Upon careful examination of the record of appeal, it is evident at page 317 that, prior to the imposition of sentence, the appellant's counsel by then, Ms.Dayness Simkoko, a learned advocate, expressly brought this fact to the attention of the trial Judge in the course of her mitigation submissions. She stated as follows: "My Lord, we pray for lenience in sentencing the accused because he is the first offender; the accused is young, 27 years o f age. ... The accused has been in remand custody for five years now. The accused is a foreigner, so he should be leniently considered so that he can serve his prison term and go back to his country. That is all my Lord." The above appellant's mitigation submission served as a reminder to the trial Judge of the statutory obligation to take into account the period spent by the appellant in remand custody prior to conviction. This requirement is enshrined in law and expressed in mandatory terms 32

through the use of the word "shall." Accordingly, it is our considered opinion that strict compliance with this provision was imperative. However, even if the trial Judge had elected not to give effect to this mitigation factor, procedural fairness would have required him to expressly state the reasons for such refusal at the time of sentencing, thereby providing a transparent justification for departing from the statutory mandate. In light of the foregoing, we are persuaded by the position advanced by the Senior State Attorney that the sentence ought ordinarily to run from the date of its imposition. While this principle is generally self-evident, the present case presents exceptional circumstances, namely, the appellant's prolonged detention in remand custody for a period of five years necessitating rigorous adherence to the statutory framework. The rationale is straightforward: from the date of his arrest, the appellant was at all times ready and available for prosecution, and the delays in the proceedings were not attributable to him. In such circumstances, where the appellant bears no responsibility for the protracted pre-trial detention, the interests of justice demand strict observance of section 178(2)(c) of the CPA, which 33

requires that the sentence take into account the period spent in remand custody awaiting trial. In this regard, we draw support from the decision in Sano Sadiki & Another v. Republic (supra), wherein it was held that: "Be it as it may, we think that had the (earned triai judge applied her mind to the provision of section 172 (2) (c) o f the CPA, she wouid have taken into consideration the period the appeiiants had spent in prison before they were sentenced. Under the circumstances, mindful of section 4(1) of the AJA and section 172(2) (c) o f the CPA, we are constrained to invoke our Revisional powers bestowed on us under section 4 (2) o f the AJA and deduct the period o f six years and nine months from the sentence o f twenty years imprisonment Thus, the appellants shall serve a custodian o f thirteen years and three months from 05/11/2021 when they were convicted and sentenced." Accordingly, we uphold the aforesaid ground of appeal and, in the exercise of our revisional jurisdiction conferred upon us by section 6(2) of the Appellate Jurisdiction Act, direct that the period of five (5) years, nine (9) months, and twenty (20) days already spent by the appellant in custody be deducted from the original sentence of twenty (20) years' 34

imprisonment. Consequently, the appellant shall serve a custodial sentence of twenty (20) years' imprisonment with effect from 23r d March, 2014, being the date of his arrest. We therefore allow the appeal to the extent hereinabove stated. DATED at DODOMA this 10th day of April, 2026. B. M. A. SEHEL JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL Judgment delivered this 13th day of April, 2026 via virtual Court, in the presence of the Appellant in person, Mr. Frank Rimoy, State Attorney for the Respondent/Republic and Ms. Christina Mwanandeje, Court Clerk; is hereby certified as a true copy of the original. 35