Lwiba Amanyisye @ Haonga vs Republic (Criminal Appeal No. 413 of 2023) [2026] TZCA 303 (11 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA ( CORAM: MKUYE. 3.A., RUMANYIKA. 3.A. And AGATHO, J.A.) CRIMINAL APPEAL NO 413 OF 2023 LWIBA AMANYISYE@HAONGA..........................................................APPELLANT VERSUS THE REPUBLIC................................................................................ RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Mbeya) (Ndunauru. 3.1 dated the 27th day of April, 2023 in Criminal Sessions Case No. 54 of 2022 JUDGMENT OF THE COURT 4th & l l m March, 2026 AGATHO. J.A.: The appellant herein, was jointly charged with one Daina Mkondya (the 1st accused at the trial) in the High Court of Tanzania at Mbeya for murder contrary to sections 196 and 197 of the Penal Code, Cap. 16 R.E. 2022. It was alleged that on or about the 21st day of November, 2016, they murdered one Aliko s/o Mwampashi, a motorcycle (bodaboda) rider, who was residing at Namangoni Hamlet, Itumba Village, Ileje District, Songwe Region. i It was established through the prosecution evidence that, on the evening of 20th November, 2016, the deceased was at a local pombe shop called "Form Six" at Itumba, operated by Hilda Songa (PW4). On that same evening, the appellant and Daina Mkondya, were also present at the said pombe shop. The deceased arrived later and inquired about the duo. Upon being informed by the pombe shop owner that she knew them, the deceased remarked that he was waiting for them as he was to ferry them to a place namely Yenzebwe. The deceased was later seen leaving the pombe shop on his motorcycle, carrying the appellant and Ms. Mkondya as passengers. This was the last occasion the deceased was seen alive, as his lifeless body was later found lying on the Itumba-Yenzebwe road with a severe head injury. Significantly, the deceased's motorcycle, a red coloured T-BETTER make bearing registration number MC 579 ACL, was missing at the scene. Upon discovery of the deceased's body, the matter was reported at Ileje Police Station. Detective Corporal Charles (PW2) commenced investigations, which led to tracing the missing motorcycle in the Republic of Malawi. On 27th November, 2016, the motorcycle was recovered from the residence of the appellant who was arrested. In his defence, the appellant admitted possession of the motorcycle but denied involvement in the murder or robbery. He alleged that he received the motorcycle from one Watson Haonga, and claimed that Watson had instructed him to take the motorcycle to Malawi. Applying the doctrine of recent possession, the trial court convicted the appellant of murder and acquitted Daina Mkondya for want of evidence linking her to the offence. Aggrieved by the conviction and sentence, the appellant lodged the present appeal with a memorandum of appeal containing six grounds which for reasons that will become apparent shortly we conveniently condensed them into two grounds: one, the prosecution failed to prove the case beyond reasonable doubt. And two, the doctrine of recent possession was wrongly applied because the chain of custody was broken. In prosecuting the appeal, the appellant in attendance and was represented by Mr. Felix Kapinga, learned Advocate whereas the respondent Republic had the services of Messrs. Joseph Mwakasege and Elibariki Charles Mpinga, both learned State Attorneys. Arguing the appeal, Mr. Kapinga told the Court that the matter hinges on the doctrine of recent possession which could be drawn from the first and third grounds of appeal. The first ground is that the 3 prosecution failed to prove the case beyond reasonable doubt. And the third ground is that the chain of custody was broken as the respective seizure certificate was not tendered. Reiterating the elements of the doctrine of recent possession, the learned Advocate referred to page 82 of the record of appeal and in the case of Joseph Mkumbwa and Another v. Republic [2011] TZCA 243 where the elements were restated as: Firstly, that the property was found with the appellant, secondly, the property is of the complainant, thirdly, that the property was recently stolen from the complainant, and lastly that the stolen thing in possession of the accused constitutes the subject of the charge against the accused. It must be the one that was stolen/obtained during the commission of the offence charged. Faulting the trial court application of doctrine of recent possession to convict the appellant, Mr. Kapinga argued that the ingredients of the doctrine of recent possession were not met. Expounding more on the point, he referred to the proceedings and judgement of the trial court, submitting that it is apparent that here there were two motorcycles. First, MC 579 ACL make T-BETTER red colour; second is MC 759 ACL T-BETTER red colour. He also cited the appellant testimony that he was arrested in Malawi with a motorcycle MC 759 ACL model T-BETTER. In contrast the prosecution testified that they arrested the appellant with MC 579 ACL red colour make T-BETTER. It was his contention that for the doctrine of recent possession to be applicable, the prosecution ought to have brought OC CID Kwileka who as per PW2's evidence arrested the appellant in Malawi. Mr. Kapinga contended that OC CID Kwileka ought to have brought seizure certificate signed by OC CID himself, the appellant and an independent witness to confirm that the motorcycle seized is the one brought in court. Alternatively, he suggested that PW5 who testified that he went to Malawi would have brought police Report Book (RB) or a photograph of a motorcycle he seized in Malawi while in possession of the appellant. In his view, it was also expected that PW3 who is said to be the owner of the stolen motorcycle, will give proper description of his motorcycle. Moreover, he made refence to testimony of PW2 at page 24 of the record of appeal where PW2 said he asked PW3 to bring the contract between himself and the deceased and documents proving ownership. To Mr. Kapinga's surprise that contract was not tendered in court. The learned Advocate further faulted the trial Judge's holding on page 85 of the record of appeal that registration numbers MC 759 ACL and MC 579 ACL and resemblance in colours is not a coincidence. The Judge held that these 5 are just arrangement of numeric numbers. Mr. Kapinga protested that there is no resemblance as 759 and 579 are different. Along with that, he submitted that, it is unclear as to why the prosecution did not bring OC CID Kwileka to testify on which motorcycle he seized in Malawi. PW1 testified that she knew his brother had a motorcycle, but she did not know the colour or its registration number (see page 21 of the record of appeal). Besides that, Mr. Kapinga argued that the documents proving ownership were also problematic. On page 62 of the record of appeal, the purchase date of the motorcycle as per the receipt (exhibit P2) is 18/12/2014. However, exhibit P3, motorcycle registration card reveals that the registration was done on 27/10/2014. The card shows that PW3 was the first owner. We wondered as to how the registration was done before the motorcycle was purchased. See page 33 of record of appeal. We can hastily conclude that motorcycle ownership was not established. In terms of the doctrine of recent possession, it was the submission of the learned Advocate, that the doctrine was wrongly applied as the elements of that doctrine were not proved or complied with. Since the doctrine was not complied with, it means that the prosecution failed to prove the case beyond reasonable doubt. Since the case was not proved 6 then the appellant was wrongly convicted, Mr. Kapinga urged the Court to allow the appeal, quash the conviction and set the appellant free. In reply submission, Mr. Mpinga rejected Mr. Kapinga's submission and added that the trial court applied properly the doctrine of recent possession. It is on record that MC 579 ACL was identified by PW2, PW3 and PW5. He submitted that it was the same motorcycle which was found in possession of the appellant. He contended that the allegation that the motorcycle was different from MC 759 ACL was deliberated by the trial Judge on page 85 of the record of appeal. Moreover, on page 86 of the same record, the trial court resolved the issue of different numbers by noting the distinction of numbers as mere arrangements and held that the exhibit was not objected to during its tendering. In addition, PW5 testified that the motorcycle he identified is the same motorcycle which was seized by the police in Malawi and he brought it to the border of Ileje in Tanzania and handed it over to OC CID of Ileje. The witness PW5 identified the motorcycle in court during trial. He conceded that OC CID did not testify in court. But we noted here that it is unclear how the motorcycle was not handed over as it is about chain of custody. However, Mr. Mpinga argued that the appellant testified that the motorcycle and himself were handed over to the police. The learned State Attorney though conceded that 7 seizure certificate was not given to the police in Tanzania. He added that the law does not provide that if the appellant did not dispute that he and the motorcycle were handed over to police in Tanzania then the chain of custody should not be accounted for. As with regards to RB, the learned State Attorney submitted that the same was not an issue as there was already a murder charge filed. Referring to a claim that PW1 did not identify the motorcycle, Mr. Mpinga contended that it was proper for her not to recognize the motorcycle number because she was not the owner. Regarding the motorcycle registration card and receipt, it was his argument that the receipt was not issued by TRA as the receipts back then were written by hand. It was at this point Mr. Mwakasege chipped in and conceded that there was a problem with ownership because the registration card (exhibit P3) seemed to have been issued before PW3 bought the motorcycle as per exhibit P2. It was his concession that there was indeed a discrepancy as the registration card was issued before the purchase of the motorcycle. Mr. Mwakasege admitted that there was no seizure certificate. There was no police officer from Malawi who arrested the appellant. The OC CID was not called to testify, Hence the chain of custody has broken 8 down. It was also his concession that the arrest of the appellant and handing over of the motorcycle was contrary to the law and the chain of custody was broken. Nevertheless, the learned State Attorney urged the Court to examine the record and come up with its own findings. On the chain of custody which was critical to prove that the appellant was caught in possession of the motorcycle to bring into play the doctrine of recent possession, the learned State Attorney conceded that the chain of custody was broken. He advanced several reasons: that there was no seizure certificate, nor was the OC CID of Ileje called to testify. To make matter worse, no police officer from Malawi who arrested the appellant in possession of the motorcycle in dispute was summoned. Moreover, the dates in the registration card and receipt are problematic. Mr. Mwakasege confessed that the doctrine of recent possession cannot apply. He adamantly agreed that the case was not proved beyond reasonable doubt. He eventually though reluctantly supported the appeal. In his rejoinder Mr. Kapinga gladly welcomed the concession and reiterated his submission and beseeched the Court to allow the appeal. Deducing from the grounds of appeal and the submissions of the learned counsel, we are settled that in this appeal there are two issues for determination. First, whether the doctrine of recent possession was properly applied in this case. Second, whether the case was proved beyond reasonable doubt. In our view, in the case at hand to invoke the doctrine of recent possession in line with our decision in Joseph Mkubwa's case (supra), the ownership of the motorcycle MC 579 ACL, make T- BETTER ought to have been undisputed, which is not the case due to confusions surrounding the registration numbers. Notably, three distinct registration numbers of motorcycles are visible in the record of appeal. We observed that during the preliminary hearing on page 13 of the record of appeal the motorcycle registration number is stated to be MC 979 ACL. In contrast, the motorcycle registration number which the trial court relied upon as per page 83 of the record is MC 579 ACL. Again, on page 28 of the record PW3 testified that the motorcycle registration number is MC 579 ACL make T-BETTER red colour. As if that is not enough, the appellant in his defence at page 55 of the record of appeal testified that the motorcycle he was arrested in possession of in Chitipa, Malawi had registration number MC 759 ACL make T-BETTER and red in colour. Although the trial court treated this distinction as immaterial, we think that was not proper. We shall explain why. The fact that there are three different registration numbers presupposes that these were three distinct 10 motorcycles. We cannot assume that because the numbers seem to be related, it may be a mere rearrangement of the numbers. In fact, these registration numbers may exist. Therefore, in absence of evidence that the said numbers belong to the same motorcycle we cannot rule out a possibility of the existence of three motorcycles with these registration numbers. We thus agree with Mr. Kapinga that there is doubt if the motorcycle with registration number MC 579 ACL make T- Better red in colour is the same as motorcycle with registration number MC 759 ACL make T- Better with red colour. In that regard, we find the appellant's allegation to be credible. That aside, ownership was a centre of controversy which is amplified by exhibits PI and P2. That dented the credibility of PW3 as the owner of the motorcycle with registration number MC 579 ACL. This stems from the fact that exhibit P2 (motorcycle purchase receipt) is dated 18/12/2014 while the exhibit P3 (motorcycle registration card) is dated 27/10/2014. As rightly pointed out by Mr. Kapinga and later conceded by Mr. Mwakasege it is inconceivable that the registration was done before the motorcycle was purchased. This understanding is supported by PW3 himself on page 33 of the record of appeal where he stated that a person cannot register something he does not have. We are firm that had the 11 trial court considered this, it would have doubted the ownership of the motorcycle and therefore decline to invoke the doctrine of recent possession. More importantly, in applying the doctrine of recent possession is the chain of custody. In Paulo Maduka & Others v. Republic [2009] TZCA 69 the Court defined chain of custody to mean the documentation of steps and hands through which the item has passed from its seizure, custody until it is tendered in court. That chain must remain unbroken. In the case at hand, as rightly admitted by Mr. Mwakasege the chain of custody was broken because, the seizure certificate which could have shown the motorcycle seized in Malawi which was in the appellant's possession is the same motorcycle that was tendered as evidence before the trial court was not tendered in court. Moreover, a key witness, the OC CID Kwileka who is said to have received the motorcycle in Ileje at the border of Malawi and Tanzania was never called to testify in court. Worse still, a Malawian police officer who arrested the appellant in Malawi was not summoned as a witness. These witnesses could have testified as to which motorcycle the appellant was arrested in possession of. Here, we are left to speculate. We have held in numerous of our decisions that failure to call a material witness entitles 12 the court to draw adverse inference on a party who failed to do so. See the cases of in Jummane s/o Marco v. Republic [2020] TZCA 228; and Idrisa Salehe Mwangobola v. Republic [2025] TZCA 1299. Compounded with that, it is unclear how the motorcycle received at Malawi-Tanzania border was stored, by whom, for how long and how it was handled until the time of tendering it in court. Although we noted that PW2, a police officer at Mkwajuni Police Station, Songwe testified on page 24 of the record of appeal that the motorcycle MC 579 ACL T BETTER was stored in exhibits room, but still there are unanswered questions like who exactly stored it, and who is the exhibits keeper? For that matter, the chain of custody was clearly broken. See Paulo Maduka's case (supra). It is our firm view that since the chain of custody was broken it was impossible to establish with certainty that the appellant was arrested in possession of the motorcycle that was tendered in court. In the premises, it was improper for trial court to apply the doctrine of recent possession. Given that the doctrine of recent possession that was relied upon in convicting the appellant was wrongly invoked, we are satisfied that the case was not proved beyond reasonable doubt. 13 For the foregoing reasons, we allow the appeal, quash the conviction and set aside the sentence imposed on the appellant. We further order his immediate release from prison unless continues to be held for other lawful reasons. DATED at MBEYA this 11thday of March, 2026. Judgment delivered this 11th day of March, 2026 in the presence of the appellant in person, Ms. Imelda Aluko, learned State Attorney for the Respondent/Republic and Ms. Jasmin Kazi, Court Clerk is hereby certified as a true copy of the original. R. K. MKUYE JUSTICE OF APPEAL S. M.RUMANYIKA JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL 14