Abubakari Ibrahim H. Kilongo & Another vs Republic (Criminal Appeal No. 129 of 2023) [2026] TZCA 362 (27 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CORAM: MWARIJA J.A. KENTE J.A. And MURUKE, J.A.) CRIMINAL APPEAL NO. 129 OF 2023 ABUBAKARI IBRAHIM HUSSEIN KILONGO.. ALEX ALEN MEMBA.... .................................. VERSUS 1 st APPELLANT ,2 nd APPELLANT THE REPUBLIC RESPONDENT (Appeal from Decision of the High Court of Tanzania at Dar es Salaam) 11th February & 27th March, 2026 MURUKE. 3.A.; The two appellants, were arrainged before the High Court of Tanzania, Corruption and Economic Crimes Division, facing a charge of trafficking in narcotic drugs contrary to section 15(1) (b)of the Drugs Control and Enforcement Act, [ Cap 95 R.E. 2019] (the DCEA) and paragraph 23 of the First Schedule to the Economic and Organized Crime Control Act, (Cap 200 R.E. 2019 now R.E.2022). At the trial court, it was alleged that, on 15th November 2018 at Mapinga area within Bagamoyo District in Coast Region, the appellants (Luvanda. J.) dated the 27th day of January, 2023 in ( HC Economic Case No. 01 OF 2020') 3UDGMENT OF THE COURT

jointly and together trafficked in narcotic drugs, namely Cannabis Sativa, commonly known as bhang weighing 327.56 kilograms, which were in the motor vehicle with registration NO.T.819CYQ make Toyota Land Cruiser. Neither the first appellant nor the second appellant admitted the charge. To support its case, the prosecution aligned seven witnesses and tendered nine exhibits which were admitted in evidence. The appellants defended themselves, they did not call witnesses and they tendered no exhibit. Briefly, the material and relevant facts leading to the arrest arraignment and conviction of the appellants are as follows: it all started during the early hours of 15th November, 2018 on the Morogoro road at Kibaha Picha ya Ndege, where the appellants were coming from Chalinze, heading to Dar es salaam , driving a motor vehicle with registration number T819 CYQ make Toyota Prado, the property of Ibrahim Ghumbi Kilongo. On their way to Dar es salaam, the appellants knocked another motor vehicle with registration number 891 DNW make Toyota WISH, being driven by Mt.82743, Thadeus Motogelo. The appellant did not stop after the incident, as a result the two motor vehicles started to chase each other off Morogoro road, towards Bagamoyo road. After some time, the two motor vehicles were stopped by the police officers and good Samaritans at Mapinga, Bagamoyo area. After arrest 2

of the appellants and search in their motor vehicle, 17 sulphate bags of dried grass, suspected to be narcotic drugs were found by the police. A seizure certificate was prepared in the presence of independent witnesses and the appellant. The suspected narcotic drugs were taken to the chief government chemist for analysis in which it was confirmed that 17 sulphate bags contained narcotic drugs namely cannabis sativa commonly known as bhang weighing 327.56 kilograms, thus the appellants were charged accordingly. The trial ensued and at its conclusion, the two appellants were convicted and sentenced to serve 30 years imprisonment to each of them. The appellants were aggrieved by both conviction and sentence, hence the present appeal raising six grounds of complaint in the main and two grounds in the supplementary memorandum, making a total of 8 grounds. When the appeal was placed before us for hearing on 11 February, 2026, the respondent / Republic was represented by Ms Sabina Ndunguru Senior State Attorney, assisted by Mr Charles Magai State Attorney. The appellants on their side, were represented by Mr Gidion Opanda and Mr Robert Rutaihwa, both learned counsel. We should point at the outset that, although the parties addressed us on all the 8 grounds of complaint, we however, for the reason that will

become apparent in the course of this judgment, neither intend to reproduce all of them nor canvass the relevant parties arguments. For purpose of this judgment the focus and concentration will be on ground one, which reads: "That the learned trialjudge erred in law to convict the appellants basing on the evidence o f physical exhibit P2 namely cannabis sativa weighing327.56 kilograms which was not listed, and or/ explained to the appellants during the committalproceedings contrary to the law." Amplifying the above ground of appeal Mr. Opanda briefly submitted that, the seventeen Sulphate bag tendered by PW1 and received by the trial court as exhibit P2 was not among the exhibits listed during committal proceedings. The same issue was raised at the trial court but was overruled. Exhibit P2 was the core evidence used to ground conviction. Failure to list exhibit P2 is an irregularity that goes to the root of proof of the prosecution case. The appellant counsel cited to us the case of Wolfagang Sylvester Lwamtonga v. Republic, (Criminal appeal No. 248 of 2022) [2024] TZCA 678 (1 August 2024) to support his arguments. The appellant's counsel concluded by stating that, since the conviction was based on that exhibit, it should be found that it was erroneously arrived at, thus exhibit P2 be expunged and the appellant's

appeal be allowed, as there is no evidence to support the charge against them. In reply, the learned Senior State Attorney admitted that exhibit P2 was not listed during committal proceedings as one of the exhibits which would be relied upon by the prosecution at the trial. However, she went on submitting that, although that was a mandatory requirement under section 246 (2) of the CPA, the omission did not render the exhibit invalid on account that, the same did not prejudice the appellant,for the reason that exhibit P2 was mentioned during the preliminary hearing. To the respondent counsel this ground lacks merit. Having heard both parties in this ground, in essence the appellants are questioning the admissibility of exhibit P2, the substance evidence that is the core of the prosecution case at the trial court to wit 17 sulphate bags of Cannabis Sativa commonly known as Bhangi. Our starting point will be section 246 (2) of the CPA that stipulates that: "upon appearance o f the accused person before it, the surbodinate court shall read and explain or cause to be read to the accused person the information brought against him as well as the statement or document containing the substance

o f the evidence o f witnesses whom the Director of Public Prosecutions intends to caii at the trial." Although the above cited provision speaks of explaining to the accused person the documents containing the substance of the evidence of the witnesses intended to be called by the prosecution, when interpreting the provisions of section 246 (2) of the CPA, the Court made it clear that the requirement includes the substance of evidence of real exhibits. In the case of The Director of Public Prosecution v. Sharif Mohamed @ Athumani and 6 others, Criminal Appeal No 74 of 2016 (unreported) the Court observed that there are four types of evidence; real, demonstrative, documentary, and testimonial. In essence therefore, the admissibility of each type of the evidence in cases covered by procedure of committing an accused person to the High Court by a subordinate court for trial, must be subject to the requirements stated under section 246 (2) of the CPA. Equally so, the Court in the case of Remina Omary Abdul v. Republic (Criminal Appeal No 189 of 2020) [2024] TZCA 118, in which like in this case, the substance in the form of flour (a physical exhibit), was neither brought to the knowledge of the accused person nor listed as one of the exhibits intended to be tendered at the trial, the Court had this to say on the prosecution's failure to meet the requirement:

" courts not only read and listpotentialprosecution witnesses but also read/ explain the contents o f documents and then list down documentary and physical exhibits the prosecution would rely on during committal and we endorse the view by Mr. Nkonko that it is a mandatory requirement." Similar position was stated by the Court in the cases of Said Shabani Malikita v. Republic (Criminal Appeal No 523 of 2020) [2023] TZCA 17302 and Michael Maige v. Republic (Criminal Appeal No 222 of 2020 [2023] TZCA 54, just to mention a few. According to the record of appeal at page 7 and 8, it is without doubts that exhibit P2, seventeen sulphate bag containing Cannabis Sativa was neither explained to the appellants nor listed during the committal proceedings as an exhibit, which the prosecution intended to tender in court. The omission is fatal as the requirement to comply with section 246(2) of the CPA is to let the accused person know before hand the substance, kind and nature of the evidence the prosecution intends to lead against him at the trial. Since, exhibit P2 was the subject matter of the charge, in which the trial court based its conviction against the appellant, its expungement renders the remaining evidence insufficient to sustain the conviction. Since the

determination of the first ground, disposes of the appeal, there is no need for considering the other grounds of appeal, In the end result, we allow the appeal, quash the conviction and set aside the sentence. The appellants be set at liberty unless they are held for any other lawful cause. It is so ordered. DATED at DODOMA this 26th day of March, 2026. A. G. MWARIJA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL Z. G. MURUKE JUSTICEOF APPEAL Judgment delivered this 27th day of March, 2026 in the presence of Mr. Gideon Opanda, learned counsel for the appellants, the appellants present in persons from Ukonga Prison, Ms. Edith Mauya, learned Senior State Attorney for the respondent/Republic, through Virtual Court and Ms. Tabitha Daniel, the Court Clerk; is hereby certified as a true copy of the