Salehe Hamis Salum & Another vs Republic (Criminal Appeal No. 799 of 2023) [2026] TZCA 279 (10 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: MWARI3A. 3.A.. KENTE, 3.A. And MURUKE. J.A.^ CRIMINAL APPEAL NO. 799 OF 2023 SALEHE HAMIS SALUM.. SEKI HAMIS MOHAMED .1 st APPELLANT 2 nd 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) 17th February & 10th March, 2026 KENTE. J.A.: The issue in this appeal is whether the trial court was clothed with jurisdiction to try the appellants who were charged with an economic offence which, at the time, required the consent of the Director of Public Prosecutions (the DPP) to authorise and initiate their trial. The appellants namely, Salehe Hamis Salum and Seki Hamis Mohamed, appeared before the Anti-Corruption and Economic and Organised Crimes Division of the High Court of Tanzania where they (Isava, J.) Dated the 29thday of September, 2023 in Criminal Case No. 27 of 2021 RULING OF THE COURT l were convicted of the offence of trafficking in narcotic drugs, contrary to section 15 (1) (a) and (3) (i) of the Drugs Control and Enforcement Act, Chapter 95 of the Revised Laws (the DCEA), read together with Paragraph 23 of the First Schedule to, and section 57 (1) of the Economic and Organised Crimes Control Act, Chapter 200 of the Revised Laws, (the EOCCA). They were subsequently sentenced to thirty years imprisonment. The particulars of the offence alleged that, on 16th March 2020 at Teak Bar Mangesane area in the Bagamoyo District of the Coast Region, the appellants were found trafficking in narcotic drugs viz. heroine, weighing 203.60 grams. They pleaded not guilty to the charge but the evidence led by eight prosecution witnesses, secured their conviction. For the reasons that will soon become manifest, we will not delve into the details of the prosecution evidence as presented in the court below. For purposes of convenience and easy narration in this judgment, we shall summarize the disputed and undisputed facts in this case, as follows: On 16th March, 2021, officers from the Drugs Control and Enforcement Commission got wind from their confidential informant 2 that, there was an intended illicit sale of narcotic drugs at Teak Garden Bar in Bagamoyo District of the Coast Region. Initially, the said officers thought of conducting a sting operation but on being told that in this particular business, there were already an intended vendor and purchaser, the said officers set out on a mission to arrest the suspects. Subsequently, the first and second appellants who were allegedly and respectively a seller and buyer, were arrested and charged with the offence of trafficking in narcotic drugs as previously stated which they denied. However, after a full trial, they were convicted of the subject offence on 29th September, 2023. Following the conviction and sentence, this appeal was launched by the disgruntled appellants. Fifteen grounds were advanced in support of this appeal and, written submissions were also filed by the appellants expounding the said grounds. It is noteworthy that the grounds of appeal and the written submissions in their support are, in the main, concerned with the question as to whether or not, the prosecution had led sufficient evidence to support the conviction. As for our part, at the hearing of this appeal, we discovered at the outset that the most fundamental question that this appeal raises, as stated earlier, is whether the trial court was clothed with the 3 requisite jurisdiction to adjudicate this matter. This is the issue that we subsequently raised suo motu and called upon the parties to address us. Bearing in mind the undoubted defects in the consent of the Director of Public Prosecutions (the DPP) purportedly authorising trial of the appellants pursuant to the then section 26 (1) instead of section 26 (2) of the EOCCA which was, in the circumstances of this case, the applicable law and, as such, the DPP's consent goes to the jurisdiction of the trial court, we probed Ms. Sabina Ndunguru who was being assisted by Ms. Nitike Mwaisaka both learned Senior State Attorneys to resist the appeal on behalf of the respondent, to tell us if the trial court was ciothed with the requisite jurisdiction to adjudicate on this matter. Having gone through the said consent which appears on page 4 of the record of appeal, Ms. Ndunguru discerned at once and without equivocation that, indeed the DPP's consent to the appellants' trial was wrongly issued and signed by the Regional Prosecutions Officer for Coast Region one Mkunde H. Mshanga, under section 26 (1) instead of section 26 (2) of the EOCCA. Relying on our earlier decision in the case of Kenneth Mwamwaja v. Republic, Criminal Appeal No. 74 of 2023, the learned Senior Sate Attorney submitted correctly so in our view, that, given that the Regional Prosecutions Officer for the Coast Region usurped the powers which were exclusively vested in the domain of the DPP, the resulting consent had no legal effect and ought to be treated as if it never existed. To that end, she posited that, the appellants were tried by the court which had no jurisdiction on account of lack of a proper consent of the DPP. Her final submission was that, the trial of the appellants was a nullity for which she urged us to declare accordingly and go on to quash the conviction and set aside the custodial sentence meted out on the appellants. On the course to be taken thereafter, the learned Senior State Attorney desisted from praying for a retrial order saying that, the record of this appeal reveals no sufficient evidence to support a conviction. She thus implored us to allow the appeal, quash the conviction, set aside the sentence and order for the immediate release of the appellants from jail. In response, the appellants had nothing substantial to say and understandably so, apart from continuing to protest their innocence. They urged us to accept their grounds of appeal as presented and finally allow the appeal. We have considered the submissions by Ms. Ndunguru on the issue which we raised suo motu and, we are grateful for her prompt and correct response which, we must say, was completely free of evasion. To start with, section 26 (1) and (2) of the EOCCA in its past form, used to clearly provide that: "26 - (1) Subject to the provisions o f this section, no triai in respect of an economic offence may be commenced under this Act save with the consent o f the Director of Public Prosecutions, (2) The Director o f Public Prosecutions shall establish and maintain a system whereby the process o f seeking and obtaining o f his consent for prosecutions may be expedited and may for that purpose , by notice published in the Gazette, specify economic offences the prosecutions o f which shall require the consent o f the Director o f Public Prosecutions in person and those the power o f consenting to the prosecution o f which may be exercised by such officer or officers subordinate to him as he may specify acting in accordance with his general or special instructions." [Emphasis added] The question we are enjoined to determine in the present case, is not novel as we faced a similar situation in the case of Kenneth 6 Mwamwaja (supra), as well as the cases of Emmanuel Chacha Keryoba and Two Others v. Republic, Criminal Appeal No. 368 of 2020 and Ally Hashim @ Athuman v. Republic, Criminal Appeal No. 533 of 2022 where, like in the instant case, the State Attorney Incharge or the Regional Prosecutions Officer as he is currently called, had purportedly issued consent under section 26 (1) of the EOCCA. Whereas in the case of Chacha Keryoba (supra) we observed that, this was a serious irregularity as the power under section 26 (1) of the EOCCA was vested in the DPP himself and was non-delegable, in the last cited case, we concluded that, the purported consent was not valid and the proceedings of the trial court were a nullity for lack of the requisite consent. Upon the above exposition of the law, as the matters stood then, we entirely agree with Ms. Ndunguru that indeed, the trial of the appellants was conducted by the trial court without the requisite jurisdiction and, in view of the current jurisprudence, it requires no legal savvy to see how and why the said trial was a nullity. That is exactly what it means in legal terms. Premised on the above reasoning, we proceed to nullify the proceedings of the trial court, quash the appellant's conviction and set aside the sentence imposed on them. As the learned Senior State Attorney has understandably not pressed for a retrial order to be made, we order for the appellants' release from jail if they are not further detained 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 Z. G. MURUKE JUSTICE OF APPEAL The Ruling delivered via virtual link, this 10th day of March, 2026 in the presence of the 1s t and 2n d appellants appeared in person and Ms. Glory Baltazary Kilawe, learned State Attorney for the Respondent/Republic and Ms. Tabitha Mwita, Court Clerk, is hereby certified as a true copy of the original. E. G.^RANGU SENIOR DEPUTY REGISTRAR COURT OF APPEAL