Robert Simon Kisena & Others vs Republic (Consolidated Criminal Appeals No. 01 & 12 of 2024) [2026] TZCA 275 (10 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: MWARIJA. J.A.. KENTE. 3.A. And MURUKE. J.A.^ CONSOLIDATED CRIMINAL APPEALS NO. 01 AND 12 OF 2024 ROBERT SIMON KISENA .......... . ..........................................1 st APPELLANT CHARLES SELEMANZ NEWE................................................. 2 nd APPELLANT TUMAINI DEUSDEDIT KULWA @ TUMAINI KULWA .......... 3rd APPELLANT VERSUS THE REPUBLIC .............. . ....................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania, Anti- Corruption and Economic Crimes Division at Dar es Salaam) ( Luvanda, 3.^ Dated the 22n d day of December, 2023 in Economic Case No. 10 of 2022 JUDGMENT OF THE COURT 9th February & 10th March, 2026 KENTE. J.A.: The three appellants, Robert Simon Kisena, Charles Selemani Newe and Tumaini Deusdedit Kulwa @ Tumaini Kulwa together with another person who is not a party to this appeal namely, John Nhwala Samangu, were charged with several offences relating to leading organized crimes and occasioning loss to a specified authority under the Economic and Organized Crimes Control Act, Chapter 200 of the Revised Laws (the EOCCA), forgery and uttering false documents under the Penal Code, Chapter 16 of the Revised Laws (the Penal i Code) and Money Laundering under the Anti-Money Laundering Act, No. 12 of 2006. It was not in contention that, at the time which is contemporaneous with the occurrence of this dispute, the first appellant was a Director of UDA-Rapid Transit Limited (UDART), a Chief Executive Officer of Simon Group Limited and a Director of Shirika la Usafiri Dar es Salaam (UDA). For his part, the second appellant was also a Director of UDA-Rapid Transit Limited, a Chief Executive Officer of Simon Group Limited and Director of Shirika la Usafiri Dar es Salaam (UDA). As regards the third appellant, he served as a cashier employed by UDA-Rapid Transit Limited. As stated earlier, the appellants and their co-accused were charged with various offences when they appeared before the Anti- Corruption and Economic and Organised Crimes Division of the High Court of Tanzania (sitting at Dar es Salaam) in Economic Case No. 10 of 2022. In total, the appellants together with their co-accused, were charged jointly and severally with fifteen counts. Upon denial of the charges, they were tried and convicted of some of the charged offences. Whereas the first and second appellants were convicted of the first and second counts which related respectively to leading 2 organized crime contrary to Paragraph 4 (1) (a) of the First Schedule to, and sections 57 (1) and 60 (2) of the EOCCA and forgery c/ss 333, 335 (a) and 338 of the Penal Code, the third appellant was acquitted on these counts. However, the third appellant was found guilty and subsequently convicted under the third count which charged him severally with uttering false documents contrary to sections 342 and 337 of the Penal Code. Moreover, the first and second appellants were found guilty by the trial court and subsequently convicted of the sixth, eleventh, twelveth and thirteenth counts in which they were charged with money laundering contrary to sections 12 (b) and 13 (1) (a) of the Anti-Money Laundering Act, No. 12 of 2006. The third appellant who was charged along with his co-appellants in the thirteenth count, was found not guilty and subsequently acquitted. But then, all the appellants were found guilty and convicted of money laundering in the fourteenth count in which they stood charged jointly. Likewise, save for their co-accused John Nhwala Samangu who was acquitted, the appellants were finally convicted in the fifteenth count in which they were jointly charged with occasioning loss to a specified authority contrary to Paragraph 10 (1) of the First Schedule to, and sections 57 (1) 60 (2) of the EOCCA. 3 According to the particulars aileged in support of the charges, all the offences of which the appellants were convicted, were allegedly committed on diverse dates between 25th May and 10th July, 2016. It was generally accepted that the appellants committed the alleged offences while in the due performance of their normal duties in their respective capacities. Whereas the evidence led by the prosecution sought to establish, among other things, that, there was no dispute over the ownership of shares in UDA and UDART which was allegedly 100% owned by the Government, the appellants remained steadfast in their position that UDA is basically owned by a partnership between Simon Group (51% stake) and the Government of Tanzania (49% stake) which holds its shares through the Treasury Registrar. It was however undisputed that UDA is the main shareholder of UDART, a firm operating the Dar es Salaam Bus Rapid Transit system. Because of the disagreement between the prosecution on one side and the appellants on another side regarding ownership of UDA and by extension UDA Rapid Transit Limited, in the course of the impugned judgment, the trial Judge took great pains to determine if the appellants or anyone of them had a stake in the allegedly stolen and laundered money. On the evidence before him, the learned trial Judge accepted the prosecution's position that essentially, there was no dispute over the ownership of shares in UDA and UDART and that, as such, the appellants had no stake in the stolen or otherwise laundered funds. Taking into account other evidence led in support of the prosecution case, the trial Judge found that the offences in the first, second, sixth, eleventh, twelveth, thirteenth and fourteenth counts were proved beyond doubt. He then went on convicting the appellants as earlier indicated. On the first and second counts, the first and second appellants were each sentenced to three years imprisonment. As to the third count, the third appellant was sentenced to three years imprisonment. With regard to the sixth, eleventh and twelveth counts, the first and second appellants were each sentenced to a fine of TZS 100,000,000.00 or five years imprisonment, upon default. As to the thirteenth and fourteenth counts, the appellants were each sentenced to a fine of TZS 100,000,000.00 or five years imprisonment in default of payment. As to the last count in which the appellants were convicted of occasioning loss to a specified authority, each of them was sentenced to three years imprisonment without option to pay fine. Whereas the custodial sentences were ordered to run concurrently, the fine sentences in respect of the sixth, eleventh, twelveth, thirteenth and fourteenth counts were ordered to be paid one after the other. Unhappy with the decision of the trial court, the appellants have now appealed to this Court advancing twelve grounds of appeal but two of which namely, the first and second grounds of appeal, have the hallmarks of being dispositive of the appeal despite the respondent's cross-appeal regarding the sentences imposed by the trial court. Under the two grounds,, the learned trial Judge is faulted for declining to stay the proceedings when, in the course of the trial, a dispute arose regarding ownership of shares between Simon Group Limited and the Treasury Registrar in UDA and UDART as evidenced by the testimonies of PW1, PW18, PW19 and PW20 on one hand and DW1 on another hand. The mainstay of the appellants' argument is that, being a criminal court, the trial court was incompetent and it lacked the jurisdiction requisite to determine the dispute of ownership of shares which falls under the jurisdiction of a civil court. Submitting in support of the first ground of appeal, Mr. Deusdedit Luteja learned counsel who was being assisted by Mr. Nduruma Majembe to represent the appellants, was both concise and precise. The learned counsel submitted that, since there was a dispute regarding the shares of Simon Group Limited in UDA and UDART, the trial court had no jurisdiction to deal with this matter as a criminal case. In a way, the learned advocate faulted the trial Judge for endorsing the prosecution's efforts to criminalise a civil matter revolving around ownership of shares and breach of contract. He thus implored us to allow the appeal, quash the appellant's conviction in respect of all counts of which they were convicted and set aside the sentences imposed on them. According to Mr. Luteja, that would pave the way for any of the parties to this appeal to seek remedies, if any, in a civil court. Upon these points of criticism which Mr. Luteja considered as material and favourable to the appellants, we were urged to allow the appeal without recourse to the remaining grounds of appeal. For his part, Mr. Patrick Mwita learned State Attorney who addressed us on behalf of a team of five State Attorneys representing the respondent, conceded that indeed there was a dispute on the ownership of UDA but he was quick to contend that there was no such dispute in the ownership of UDART. The learned State Attorney further submitted that there was no dispute that UDART is owned by UDA allegedly by 99% and Simon Group Limited by 1%. Mr. Mwita submitted with a sincere and intense conviction that, ownership of shares was a non-issue in this case and that, as opposed to the first appellant's claims, it was only UDART which had suffered a loss as a result of the appellants' alleged wrongdoings. Responding to the appellant's argument that the alleged offences arose out of a contractual relationship between UDART and Longway Engineering Limited a company owned by the first appellant, Mr. Mwita submitted that there was no contract between the two companies the breach of which could lead to a contractual dispute as to warrant resort to civil sanctions. In this regard, the learned State Attorney strenuously submitted that, considering the evidence on record, the trial of the appellants was fair in every aspect and we should then dismiss the first and sixth grounds of appeal for being devoid of merit. We have considered this appeal together with the contending positions taken by the parties. The sole issues as aptly captured in the two grounds of appeal, are whether, in view of the evidence adduced in this case, there was any dispute over the ownership of shares in UDA and UDART and a breach of contract between UDART and Longway Engineering Limited and, if the answer is in the affirmative, then we will move forward to determine whether it was open for the trial Judge to proceed with the trial when it became apparent that in 8 the early stages, the dispute between the parties was supposed to be referred to a civil court. Now, following the evidence by the earlier mentioned four prosecution witnesses on one hand, and the first appellant on another hand and, upon submission by Mr. Majembe, the learned trial Judge clearly said at page 4624 of the record of appeal that, the trial court being a criminal court was not a proper forum which could conclusively determine the question regarding shareholding between MS Simon Group Limited and the Treasury Registrar. But then the learned trial Judge quickly rejected the contention by Mr. Majembe that the charges levelled against the appellants were attributable to a shareholding dispute in UDA and UDART and that, recourse to the civil court was necessary in this case. The learned Judge took the view that, the question of shareholding structure in this dispute was relevant only for the purposes of determining whether the Government had any share in UDART. According to the learned Judge, shareholding structure had nothing to do with the appellants' criminality in this matter. Going by the foregoing approach by the trial Judge, we do not agree with Mr. Mwita's contention that there was no dispute of shareholding in this matter. There is no doubt, on the totality of the 9 evidence as correctly submitted by Mr. Luteja that, throughout the trial, shareholding was at the centre of this dispute. This fact is compounded by the trial Judge who went at great pains to analyse evidence and finally conclude that there was no shareholding dispute in this matter. It should be very elementary to observe at this juncture that, in any criminal case, an issue arises when a material proposition of fact or law is affirmed by one party and denied or contested by the other party. This state of affairs creates a dispute that requires a court's determination to decide the case. In this regard, it is certainly clear that, in the context of the present case, the learned trial Judge failed to properly take into account the evidence that disclosed a shareholding disagreement which ought to have been resolved through litigation if other methods had failed. While we are mindful that company or contractual disputes may be referred to a criminal court when the alleged behaviour or misconduct by the accused moves beyond civil matters and involve intentional and dishonest actions that break public laws, bearing in mind the prevalence in our country of civil disputes such as breach of contract being clumsily criminalized as to quickly turn civil wrongs into crimes, we interpose here to remark that, the courts of law abhor and 10 obviously they will more often than not, quash such vexatious proceedings unless overwhelming criminality is proven. The above being the case, we are inclined to allow the present appeal as we hereby do. We nullify the proceedings of the trial court, quash the appellants' convictions in all counts and set aside both the custodial and fine sentences imposed on them. We order for the appellants' immediate release from jail if their continued detention is not for some other lawful cause. DATED at DAR ES SALAAM this 7th day of March, 2026. A. G. MWARIJA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL The Judgment delivered via virtual link, this 10th day of March, 2026 in the presence of appellants and Mr. Deusdedit Madeleke Luteja and Mr. Nduruma Majembe both learned counsels for the appellants and Ms. Glory Baltazary Kilawe, learned State Attorney for the respondent/Repubiic and Ms. Tabitha Mwita, Court Clerk, is hereby certified as a true copy of th Z. G. MURUKE JUSTICE OF APPEAL NIOR DEPUTY REGISTRAR COURT OF APPEAL 11