Maria Osward Mtumbuka & Another vs Republic (Criminal Appeal No. 448 of 2024) [2026] TZCA 398 (10 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: SEHEL. J.A.. MGONYA, J.A. And KHAMIS, 3.A.) CRIMINAL APPEAL NO. 448 OF 2024 MARIA OSWARD MTUMBUKA............................................ 1st APPELLANT HAMIS SAID AW AD H ...... .................................................. 2n d APPELLANT VERSUS THE REPUBLIC ............... . ..................... . ................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania, Corruption and Economic Crimes Division, at Dar Es Salaam) flsava, J.) dated the 9rd day of April, 2024 in Economic Case No. 21 of 2022 JUDGMENT OF THE COURT 13th February, & 10th April, 2026 SEHEL. 3.A.: The appellants, Maria Osward Mtumbuka and Hamis Said Awadhi, were jointly charged but separately convicted by the High Court of Tanzania, Corruption and Economic Crimes Division (the trial court), for the offence of trafficking in narcotic drugs contrary to sections 15 (1) (a) and (3) (i) of the Drug Control and Enforcement Act (the DCEA) read together with paragraph 23 of the First Schedule to, and sections 57 (1) and 60 (2) of the Economic and Organized Crime Control Act (the EOCCA). The 1s t appellant was convicted on the 1s t count for trafficking l

6.65 kilograms of heroin, while the 2n d appellant was convicted on the 2n d count for trafficking 6.75 kilograms of heroin. They were each sentenced to thirty (30) years imprisonment. The genesis of this matter traces back to 2n d April 2021 when the appellants arrived at Julius Nyerere International Airport (JNIA) aboard an Air Tanzania Corporation Limited (the ATCL) flight from Harare, Zimbabwe. They were on transit, destined for Mumbai, India. Upon arrival at JNIA, Terminal III, their checked-in baggage was routed through the Baggage Handling System (BHS) for final security screening before being loaded onto their connecting flight. According to Joseph Enock Nyambalya (PW4), a security officer employed by the Tanzania Airports Authority (TAA), on the fateful day at around 6:00 p.m. while at work, at the x-ray scanning machine at the BHS, he noticed suspicious images on the screen machine when the two bags were passing through the scanner. He re-scanned both bags and observed the same unusual images. He set the bags aside and noted the names on the baggage tags: one bore the name Maria Oswald Mtumbuka, and the other Hamis Said Awadhi. He reported the matter to his shift in-charge, who in turn alerted the police.

Inspector Furahini Michael Tarimo (PW2), the officer in charge of the police shift at JNIA, received a phone call from Sgt. Fa raja at around 7:00 p.m. informing him of the suspicious bags. PW2 instructed his officers to proceed to Terminal III while he also headed there. Upon arrival, he found police officers including Sgt. Faraja, Sgt. Mwanaidi, and CPL Swalehe, along with TAA employees including PW4, Stanley Nzota, Frank Kimaryo, and Christopher Reuben. The two appellants were also present. According to PW2, the appellants were asked to identify their bags. The 1s t appellant identified a big black bag as hers, while the 2n d appellant identified a big bag with a fading blue colour. They were requested to empty their bags. After they removed their personal belongings, PW4 re-scanned the empty bags and again detected the same suspicious images. PW2 and his team then examined the bags closely. They noticed unusual humps on the sides and bottom of the bags. Upon tearing the inner linings of the 1s t appellant's bag, they discovered three khaki- coloured packets concealed within the sides and bottom of the bag. The same was done to the 2n d appellant's bag, yielding three similar khaki packets.

PW2 made a small puncture in one of the packets using a pen and observed a cream-coloured powder substance, which he suspected to be narcotic drugs. He placed both appellants under arrest and searched the appellants. From the 1s t appellant, PW2 recovered: a Tanzanian passport in the name of Maria Oswald Mtumbuka, a Western Union receipt for USD 1,200 in her name, USD 521 in cash, a yellow fever vaccination card, a boarding pass from Harare to Dar es Salaam via ATCL, two online Kenya Airways tickets from Dar es Salaam to Nairobi, and Nairobi to Harare, two used boarding passes from Dar es Salaam to Nairobi via Zimbabwe, a black handbag, and a Techno Spark smartphone. From the 2n d appellant, he recovered the following items; a Tanzanian passport in the name of Hamis Said Awadhi, two mobile phones (a black Techno button phone and a blue-grey Nokia feature phone), USD 340 in cash a boarding pass from Harare to Dar es Salaam via ATCL, a COVID-19 certificate in his name, and an online ticket from Harare to Mumbai via Dar es Salaam. PW2 prepared the two Seizure Certificates (DCEA Form No. 003). The first certificate which was admitted in evidence as Exhibit P7 was for the items seized from the 1s t appellant. The second certificate which was

admitted as Exhibit P8 was the items seized from the 2n d appellant. Both certificates were signed by PW2, the two appellants, and five TAA employees who witnessed the search, namely; Christopher Reuben, Joseph Nyambalya (PW4), Jonathan Mwakuga, Stanley Nzota, and Frank Kimaryo. The 1s t appellant also affixed her thumbprint to her certificate. PW2 then repackaged the drugs. It is on record that, the drugs seized from the 1s t appellant were placed in three khaki packets (each marked "01") and they were then put into one large khaki envelope. PW2 sealed the large khaki envelope with a police seal, labelled it with a letter "A", and stamped it with the OCCID JNIA stamp. He wrote the names of the witnesses and the appellant on the envelope, and they all signed it. The same process was followed for the 2n d appellant, the suspected drugs were repacked and marked "02" and then placed in a big envelope, labelled it with a letter "B". The two envelopes, containing the suspected drugs, were later admitted in evidence as Exhibits P5 and P6, respectively. The appellants and the seized exhibits were taken to the police station at Terminal I. Upon arrival, PW2 handed over the exhibits to the exhibit keeper, one E.7025 D/CPL Ivo (PW5) for safe custody. The two 5

handover certificates were admitted in evidence as Exhibit P9. The appellants were placed in the lock-up. On 6th April 2021, PW5 handed over the envelope containing the 2n d appellant's drugs to an investigative officer, one E.370 D/SGT Jesiansi Aloyce Kihombo (PW3), through a handing over certificate which was admitted in evidence as Exhibit P9 in order for him to take the suspected drugs to the Government Chemist Laboratory Authority (the GCLA) for analysis. They then both PW3 and PW5 travelled together to the GCLA where they were received by Boniface Emmanuel Majinyali (PW1), a gazetted government chemist officer through Government Gazette Notice No. 826 of 2020. Having weighed and examined Exhibits P5 and P6, PW1 observed that the substance contained within the three packets, Exhibit P5, (excluding packaging) weighed 6.65 kilograms and confirmed that they were heroin. Whereas, the substance in Exhibit P6 weighed 6.75 kg and also confirmed to be heroin. The two Government Chemist Analyst Reports bearing Lab. No. 926/2021 and Lab. No. 927/2021 were admitted in evidence as Exhibits P3 and P4, respectively. After leaving the GCLA, PW3 and PW5 proceeded to the police headquarters cybercrime unit and handed over the three seized mobile 6

phones for forensic examination. On 19th May 2021, the cybercrime results were released, and the phones were returned to PW5 through a handing over certificate, Exhibit P15. Subsequently, the appellants were arraigned before the trial court. At the close of the prosecution case, the trial court found that a prima facie case had been established and put the appellants on their defence. Maria Osward Mtumbuka (DW1) admitted that she was travelling from Zimbabwe to India on 2n d April 2021 but denied committing the offence. It was her evidence that the purpose for her travel was to seek medical treatment in India for her injured leg. She was travelling with the 2n d appellant, who was her in-law. Upon arrival at JNIA, a quarrel erupted between the 2n d appellant and immigration officers who doubted his Tanzanian citizenship. She intervened, and they were eventually charged with the unlawful possession of narcotic drugs. She disowned the black bag. Hamis Said Awadhi (DW2) testified that he was a businessman dealing in vehicle colours in Morogoro. He confirmed he was travelling to India for a cardiac check-up and treatment. He narrated a similar version of events regarding the quarrel at immigration. He alleged he was beaten by police, forced to sign documents, and that his legs 7

became swollen. He claimed the drugs exhibited (Exhibit P6) were not the ones taken to the GCLA. He argued there was a discrepancy between the bag he allegedly used (which he claimed was a red sports bag) and the fading blue bag exhibited. He pointed to a letter (Exhibit Dl) which he claimed showed that the drugs sent for analysis were from a black bag, not his. He denied any connection to the drugs and prayed for acquittal. After the defence case, the trial court evaluated the evidence and found the prosecution case credible. It convicted both appellants and sentenced them to 30 years' imprisonment. Dissatisfied with the outcome of the case, the appellant appealed to this court, protesting their innocence. At the hearing of the appeal, the appellants were represented by Mr. Bwemelo, learned advocate, whereas Mr. Nchanila, learned Senior State Attorney, appeared for the respondent Republic. Submitting for the appellants, Mr. Bwemelo adopted all the memorandum of appeal, the supplementary memorandum of appeal filed by the 2n d appellant, the written arguments and highlighted on the supplementary memorandum which contained the following grounds of appeal: 8

1 . The trial court erred in law and facts by convicting and sentencing the 1s t appellant while the chain of custody of the alleged narcotic drugs and other exhibit was broken beyond repair. 2. The trial court erred in law and facts by convicting and sentencing the 1s t appellant while the weight of the alleged narcotic drugs was not proved beyond reasonable doubt. 3. The trial court erred in law and facts by convicting and sentencing the 1s t appellant while the alleged narcotic drugs was not identified at all. 4. That the trial court erred in law and facts by convicting and sentencing the 1s t appellant without considering her evidence. 5. The trial court erred in law and facts in convicting and sentencing the 1s t appellant by relying on search and seizure certificate (Exhibit P7) of the alleged narcotic drugs which was not witnessed by the impartial and an independent witness and which was conducted in contravention of mandatory provision of the law. 6. The trial court erred in law and fact by convicting and sentencing the 1s t appellant by relying on the exhibits which were prepared and admitted in contravention of the law. 9

7. That the trial court erred in law and fact by convicting and sentencing the 1s t appellant while the case was not proved beyond reasonable doubt. In arguing the first ground, Mr. Bwemelo submitted that, the chain of custody in handling exhibits P5 and P6 was broken at the time when they were tendered in evidence by PW1. He contended that the record of appeal was silent at who and when was the tendered Exhibits P5 and P6 were handed over to PW1 for him to tender them before the trial court. He added that both Exhibits P5 and P6 were confirmed to be heroines as per the report of the GCLA, Exhibits P3 and P4, but the same were described differently by the prosecution witnesses. It was Mr. Bwemelo's preposition that the tendered Exhibits P5 and P6 were not the ones seized by PW2 at JNIA, Terminal III. To cement his argument, he referred us to page 60 of the record of appeal where PW1 described the suspected substances as solidified flour substance with cream colour or coffee like colour while PW2 said that he saw cream powder substance and further at page 116 of the record of appeal, PW2 described the substance as a cream colour flour substance with no change in color. Relying on the authorities in the cases of Samwel Slaa @ Sarea & Another v. The Republic [2024] TZCA 32 and Zainabu d/o Nassoro @ Zena v. The Republic [2015] TZCA 329, he stressed 10

the importance of keeping the integrity of the chain of custody to eliminate the possibility of the exhibits being tampered with. Mr. Bwemelo argued that the chain of custody was further broken by the contradictory evidence of the prosecution witnesses. He pointed out that at page 152 of the record of appeal, PW5 claimed that he received Exhibit P9 from PW2 at 09:00 pm but Exhibit P9, found at pages 428 and 429 of the record of appeal, showed that it was handed over at two different times, at 23:27 hours and 23:25 hours which means that PW5 received two different exhibits at different times. Further, while PW3 claimed to have gone to the GCLA in company with PW5, PW1 said that he first received samples from PW3 and after ten minutes, PW5 arrived with his samples. Yet again, PW3 said that he received the results from the GCLA on 8th July 2024 whereas the reports, Exhibits P3 and P4 were both dated 19th April 2021. Citing the case of Dickson Elia Nsamba Shapwata & Another v. The Republic [2008] TZCA 17, Mr. Bwemelo submitted that the discrepancies were material which ought to be decided in favour of the appellants. On his part, Mr. Nchaniia, learned Senior State Attorney, opposed the appeal. Replying to the first ground, he submitted that the chain of custody was not broken. He tried to detail the trail of exhibits P5 and P6

from their seizure until tendering before the trial court. He pointed out that the exhibits were seized by PW2 at JNIA from the appellants. PW2 placed the seized items from the 1s t appellant in one envelope and marked it by using the police seal and labelled it with a letter A. He also issued a seizure certificate Form No. 003 which was admitted in evidence as exhibit P7. The same was signed by PW2, the 1s t appellant and independent witnesses, namely; Christopher s/o Reuben, Joseph s/o Nyambarya, Jonathan s/o Mwankurya and Stanley s/o Nzota. Mr. Nchanila added that PW2 did the same for the 2n d appellant and labelled the envelope with a letter B. It was his preposition that the labelling was to ensure the exhibits would not be tampered. Upon seizure, on the same night, PW2 took the exhibits and handed over to the Exhibits Keeper, PW5, for safe custody. PW5 corroborated the evidence of PW2 that he was handed over the seized items by PW2. On 6th April 2021, PW5 and PW3 took the exhibits to Government Chemist Officer, PW1, for analysis. Mr. Nchalila referred us to page 37 of the record of appeal where PW1 stated that he first received PW3 and after 10 minutes he received PW5. Relying on the authority in the case of Christian Ugbechi v. The Republic [2021] T2CA 3539, he 12

submitted that the contradictions if any were minor and did not go to the root of the case. Mr. Nchalila stressed that PW1 explained how he worked on the exhibits P5 and P6 that upon receipt of the same, he labelled the exhibits with the GCLA laboratory number and then conducted a preliminary test. He also weighed the exhibits and took samples from each exhibit for further analysis. He then sealed them by using the GCLA seal and lastly, he returned the exhibits to the senders. Mr. Nchalila submitted that, according to the record of appeal, PW5 stored the exhibits until tendered before the trial court. To cement his argument, he referred us to page 155 of the record of appeal. He pointed out that, at the time when PW1 was tendering exhibits P5 and P6, he identified them by the seal and lab number he previously inserted. In that regard, he argued that the exhibits were not tempered, remained intact up to their tendering before the trial court. To support his submission, he referred us to the case of Joseph Leonard Manyota v. The Republic [2017] TZCA 1029 for the preposition that it is not every time that when the chain of custody is broken, then the relevant item cannot be produced and accepted by the court as evidence, regardless of its nature. 13

Responding on the issue of the colour of the drugs, Mr. Nchalila submitted that, when PW1 was responding to the trial court's question, he clearly established that the drugs had a tendency of changing shape and colour. He cited the case of Christian Ugbechi v. The Republic (supra) for the preposition that the colour of the suspected drugs was minor and did not go to the root of the case. Further, Mr. Nchalila distinguished the cited cases. He pointed out that in the case of Samwel Slaa @ Sarea & Another v. The Republic (supra), the chain of custody was not clearly demonstrated from the time of arrest to the time when they were handed over to an exhibit keeper while in the appeal before us, such chronological event was detailed by the prosecution witnesses who handled the exhibits and supported by documentary evidence. And for the case of Zainabu Nassoro @ Zena v. The Republic (supra), he submitted that the sealing of the suspected drugs was not done immediately after its seizure while in the appeal before us, immediately after PW2 seized the suspected drugs, he placed them in two separate envelopes and marked them with letters A and B at the JNIA Terminal III, in the presence of the appellants. 14

Having heard the submission of learned counsel and upon examination of the ground of appeal and the record before us, the issue that stands for our determination is whether the chain of custody of the labelled envelope A and B were intact from the time of their seizure up to the tendering before the trial court. By chain of custody, we mean the chronological documentation and or paper trail, showing the seizure, custody, control, transfer, analysis and disposition of evidence be it physical or electronic. In its numerous decisions, this Court emphasised on the importance of a proper chain of custody to ensure that the physical evidence forming the subject of the charge has not been tampered with, substituted or contaminated and that, it is authentic and admissible in evidence. For instance, in the case of Paulo Maduka & 4 Others v. The Republic [2009] T2CA 69, the Court echoed that: The idea behind recording the chain of custody is to establish that the aiieged evidence is in fact related to the alleged crime rather than for instance, having been planted fraudulently to make someone guilty. The chain o f custody requires that from the moment the evidence is co!iected/ its very transfer from one person to another must be 15

documented and that it be provable that nobody else could have accessed it... " [Emphasis added]. Yet again, in the case of Chacha Jeremiah Murimi & 3 Others v. The Republic [2019] TZCA 52, the Court stated the following: "In order to have a solid chain o f custody, it is important to follow carefully the handling o f what is seized from the suspect up to the time the exhibit is received in court as evidence. The movement o f exhibit from one person to another should be handled with great care to eliminate any possibility that there may have been tampering with that exhibit..." In the appeal before us, it was alleged by the prosecution that on 2n d April, 2021, at JNIA, the appellants were found trafficking of narcotic drugs namely heroin, from the Republic of Zimbabwe. According to PW2, upon search, he seized, among other items, three khaki packets containing a cream powered substance suspected to be narcotic drugs from the 1s t appellant's black bag. Upon seizure, he repacked the exhibit an envelope and marked it with "01"; placed it in a big envelope and marked the envelope with a letter A. He then sealed the exhibit with a police seal, placed his signature and also the 1s t appellant and witnesses signed on it. 16

PW2 did the same for the exhibit seized from the 2n d appellant's blue big bag. He marked it with "02"; the envelope was marked with a letter B; sealed it with a police seal and it was signed by PW2, the 2n d appellant and the witnesses. He then conveyed the suspects and the exhibits to JNIA Police Station. At the police station, he handed over the exhibits to the Exhibits Keeper, PW5 through the handing over certificates which were collectively admitted in evidence as exhibit P9. Although we are at one with the submission of Mr. Bwemelo that, exhibit P9, at page 428 of the record of appeal, has no signature or acknowledgment of the receiving officer, the oral account of PW5 suffices to establish that the exhibits were handed over to her by PW2. It was on record that PW5 stored the exhibits up to 6th April, 2021, when they were transported to the GCLA and handed over to PW1 for forensic identification and weighing. Having examined the exhibits, PW1 observed that the exhibit brought by PW3 weighed 6.65 kg and it was confirmed to be heroine while the one brought by PW5 weighed 6.75 kg and also confirmed to be heroine. Thereafter, PW1 resealed the exhibits by using the GCLA seal and stamp and signed it. He then handed back the exhibits to PW3 and PW5. Upon their return to the JNIA Police Station, PW3 handed over the exhibits to PW5 for safe custody. 17

On 1s t September, 2023, PW1 tendered the exhibits before the trial court and they were accordingly marked as Exhibits P5 and 6. Admittedly, the record is silent as to how the exhibits reached into the hands of PW1 as the prosecution did not lead any evidence to establish how and when did the exhibits reached into the hands of PW1 for him to tender them before the trial court. On his part, while on cross examination, PW1 responded as following: "I found the exhibit in court. I do not know how they reached the court." On the other hand, PW5 said that he handed over the exhibits to PW2. For ease of reference, we reproduce the extract of his evidence that: "/ handed over the exhibits as they were being taken to court through handing over certificate. I handed over to Inspector Furahini." With the foregoing evidence, it becomes manifestly clear that PW5, the Exhibits Keeper, was not the one who handed over Exhibits P5 and P6 to PW1 for purposes of tendering them before the trial court. According to his testimony, he handed the exhibits to PW2. Yet, PW2 remained entirely silent on this matter. In his evidence, he did not acknowledge receiving the exhibits from PW5. Consequently, it is wholly 18

unclear who took custody of the exhibits from PW5, who transported them to court, and who eventually handed them to PW1. This glaring vagueness in the chain of custody fatally undermines the reliability of the Exhibits P5 and P6; the integrity of the evidence cannot be guaranteed. Much as we are alive with our holding in the case of Joseph Leonard Manyota v. The Republic (supra) but in the circumstances of the present appeal it will be unsafe to assume that Exhibits P5 and P6 were the very items seized by PW2 at the JNIA Terminal III and later examined by PW1. We say so because the appellants objected at the time when the exhibits were about to tendered by PW1 and also did cross examined the witness extensively on it. On the contrary, in the case of Joseph Leonard Manyota v. The Republic (supra) the appellant did not object to its tendering and there was no cross examination. We strongly believe that the unexplained gaps in the movement of Exhibits P5 and P6 from PW5, PW2 to PW1 raise a strong probability of tampering or falsification. We therefore find merit in this ground of appeal. Since this sole ground of appeal disposes the entire appeal, we see no need in determining the remaining grounds of appeal.

In the end, we allow the appeal, quash the conviction, set aside the sentence and order for the immediate release of the appellants, Maria Osward Mtumbuka and Hamis Said Awadh from prison unless otherwise lawfully held. DATED at DODOMA this 8th 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 virtually this 10th day of April, 2026 in the presence of the appellants in person - unrepresented, Ms. Grace Kibaki, learned State Attorney for the Respondent/Republic and Ms. Christina Mwanandenje, Court Clerk is hereby certified as a true copy of the W. A. HAMZA DEPUTY REGISTRAR COURT OF APPEAL 20