Simon Juma Kashinje & Another vs Republic (Criminal Appeal No. 273 of 2023) [2026] TZCA 244 (5 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA (CQRAM: L IU , J.A.. MAIGE, J.A.. And MANSOOR. J.A.^ CRIMINAL APPEAL NO. 273 OF 2023 SIMON JUMA KASHINJE............................................... 1ST APPELLANT LAMECK NIKOMBOLWE ................................................ 2 nd APPELLANT VERSUS THE REPUBLIC ................................................................. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Shinyanga) (LyyandSiJJ dated the 16th day of August, 2022 in Economic Case No. 02 of 2021 JUDGMENT OF THE COURT 19h February & 5t h March, 2026 MANSOOR. J.A.: The appellants, Simon Juma Kashinje and Lameck Nikombolwe were charged with the offence of trafficking narcotic drugs contrary to section 15 (1) (a) of the Drugs Control and Enforcement Act, No. 5 of 2015 as amended by section 8 (1) (a) (i) (ii) and 3(iii) of the Drugs Control and Enforcement Act (Amendment) Act No. 15 of 2017, read together with paragraph 23 of the First Schedule to and section 54 (1) of the Economic and Organized Crime Control Act, Cap 200 R.E 2002, i

as amended by the Written Laws (Miscellaneous Amendment) Act No. 3 of 2016. The particulars were that, the appellants herein together with Kulwa Nelson and Shaban Nurdin Ramadhan were jointly and together, on 15th April 2018 at Isaka Area within Kahama District in Shinyanga Region, found unlawfully trafficking narcotic drugs namely cannabis sativa commonly known as bhangi weighing 92 kilograms from Kagongwa Isaka to Dar es Salaam by a motor vehicle with registration number T872 CVS make Toyota Coaster. The prosecution case was built by eight (8) witnesses and seven (7) exhibits. It was PW5, Patrick Constantino Mminza, a police officer working at Isaka who testified that, on 14/04/2018, he was tipped by an informer that, a Toyota Coaster with registration No. T872 CVS "the vehicle" was loading bhangi to be trafficked to Dar es Salaam from Kagongwa Isaka. It was 5.00 o'clock in the morning. He went to Isaka Police Station, signed in and proceeded to the barrier. He also called one Mbaraka Juma who works in the Ministry of Tourism and Natural Resources and asked him to use their barrier to seize the vehicle. At 5.45 am, the vehicle arrived at the barrier, he stopped it, and asked the driver to offload the two small sulphate bags from the rear boot, and

three sulphate bags from the passenger seat. Then, he called the OCS of Isaka, one Daniel Mkoma (PW4). He then interviewed the driver who told him that, the consignment belonged to a passenger, he immediately arrested the passenger who was Simon Juma Kashinje, the first appellant herein. Then the OCS (PW4) arrived, he seized the consignment and the vehicle. The seizure was witnessed by PW5, Simon Juma Kashinje, the first appellant, and Mbaraka Juma (PW8). Then, they proceeded to the police Station. PW4, the then OCD of Kahama, testified that, he arrived at the barrier after receiving a phone call from PW5, he interviewed the driver of the vehicle Lameck Nikombolwe, the 2n d appellant herein, who said the consignment belonged to Simon Juma Kashinje, the first appellant. The first appellant admitted that, the consignment belonged to him. PW4 seized the consignment and the vehicle; the certificate of seizure was admitted as exhibit P6. He also identified in court the consignment of bhangi which was admitted as exhibit P4, and the vehicle as exhibit P5. PW3, D/Cpl Gerald, a police officer and the exhibit keeper, acknowledged to have received the consignment and the vehicle from the in charge of CRO, whose name he did not remember. He kept the 3

consignment in the store. He testified that, on 17/4/2018, he gave the consignment to Afande Inspector Masunga who took them for weighing at Shinyanga, and returned them back to PW3 on the same day. On 18/09/2018, DC Mugale (PW2), took the consignment from PW3 to the Government Chemist in Mwanza, and returned it to PW3 on 10/10/2018. He then preserved the consignment in the police storeroom. A/Insp Mugale Kadogo testified as PW2. He confirmed to have taken the consignment from PW3 and handed it over to Sane Lyochi (PW1) an officer working at the Government Chemist in Mwanza, and after she examined it, he collected the consignment from Sane Lyochi and returned it to PW3 for storing it in the exhibit room. PW6, Sgt John who was the CRO in charge of Police Central Shinyanga, confirmed to have received the four suspects and five sulphate bags of bhangi, and the vehicle from PW5 of Isaka Police and handed them over to PW3 CpI Gerald, the exhibit keeper for safe keeping. PW7, inspector Marko Masunzu, recorded the cautioned statement of Simon Juma Kashinje on 15/4/2018, who admitted that, the five bags were given to him by a certain young boy to transport to 4

Dar es Salaam, that young boy told him that, the five bags contained tobacco. He then asked the driver, Lameck Nikombolwe who agreed to transport it to Dar es Salaam for a fare of TZS 150,000/=. He also said, he took the consignment for weighing on 17/04/2018, and later returned it to PW3. The letter from the Weights and Measures Agency dated 17/04/2018 was admitted as exhibit P7. PW8, Mbaraka Juma who works at the office of Tanzania Forest Service Agency (TFS) at Kahama, admitted to have witnessed the search and seizure of five sulphate bags containing bhangi, and a vehicle. PW1, Sane Mayaya Lyochi, was a Government Chemist working in Mwanza. She testified that, on 18th September 2018, she received five bags containing dry leaves suspected to be cannabis sativa from police officer Mugale (PW2) from the office of CRO Shinyanga. The exhibits were handed over via form DCEA 001, registered as M.Lab. No. 1141/2018, and a chain of custody form was signed. She weighed the contents and confirmed that, it weighed 89.9 kilograms. After examining the contents, she concluded that the leaves contained tetrahydrocannabinol, a compound found in cannabis. She prepared a report, signed it and called the police officer Mugale (PW3) to collect 5

the report as well as the bhangi. She produced the form DCEA dated 18/09/2018, which was admitted as exhibit PI. She also produced a chain of custody form which was admitted as exhibit P2, and a report lab no. 1141/2018 which was admitted as exhibit P3. She also produced five sulphate bags of the consignment bhangi which was admitted and marked as exhibit P4. In defense, Simon Juma Kashinje testified that, he was a passenger in the vehicle and did not carry any cargo. He claimed that some passengers boarded at Phantom Area and might have loaded the consignment in the vehicle. He admitted to have been stopped at the barrier but claimed that, there were many bags at the barrier. He said, at the barrier, the arresting officer ordered the militiamen to load the sulphate bags into the vehicle. Lameck Nikombolwe testified that, he was simply the driver of the vehicle and knew nothing about the consignment. After the trial, the appellants were found guilty as charged and were later sentenced to 20 years imprisonment. They were dissatisfied with both the conviction and sentence and filed this appeal based on the following seven (7) grounds of appeal set out in the memorandum of appeal dated 14th August 2023.

1. That, the learned trial Judge grossly erred in law by failure to summon independent witnesses to corroborate the prosecution's evidences since on the said car there was a lot of passengers.

2. That, the learned trial judge grossly erred in law by convicting the appellants relying on the seizure certificate (Exhibit P4) which resulted from a search that was conducted in violation of the law.

3. That, the learned trial Judge grossly erred in law by holding the appellant's conviction basing on the cautioned statement which was illegally obtained.

4. The cautioned statement of the first appellant was illegally obtained, hence the trial judge wrongly relied on it to base his conviction;

5. That, the learned trial Judge grossly erred in law by wrongly convicting the appellant without considering that the chain of custody of exhibit P4 was abrogated.

6. That, the learned trial Judge erred in law by wrongly holding on Exhibit P4 whose identity was not sufficiently established in court by prosecution's witnesses hence rendering the same to be null and void.

7. That, the prosecution case was not proved on the required standard. On these reasons wherefore the appellants prayed for the appeal to be allowed, the sentence be set aside, and the appellants be set at liberty. The hearing of the appeal before the Court proceeded on 19th February 2026, whereas the first appellant was represented by Mr. Frank Samwel, learned advocate and Mr. Audax Theonest Constantine learned advocate represented the second appellant. Ms. Salome Mbughuni, learned Senior State Attorney appeared for the respondent Republic. Mr. Samwel opted to argue on grounds 2, 5 and 7 only but prayed to amend ground 2, to read as follows: "The trial judge grossly erred in law by convicting the appellants relying on the seizure certificate for seizing exhibit P4, which resulted from a search that was conducted in violation of the law". Then, Mr. Constantine, took the floor and submitted on ground 5 on the chain of custody. He argued that, the chain of custody was broken. That, after the retirement of PW3 Coplo Gerald in 2019, he testified that, he handed over the exhibits including exhibit P4 to Afande 8

Salia through a Ledger Book. He submitted that, Afande Saiia did not testify in court to prove that, he was handed over the exhibits by PW3. The ledger book also was not tendered in court as exhibit which would have proved that PW3 had handed over the exhibits to Afande Salia in 2019, when he retired. Mr. Constantine argued that, the consignment of bhangi was produced in court by PW1, Sane Mayaya Lyochi, a chemist from Mwanza, who said in her testimony that, after testing the consignment, she returned it to Afande Mugale (PW2) since 10/10/2018, but the record does not show how the consignment was removed from the store keeper PW3, Afande Gerald to PW1, the Government Chemist for tendering it in court on 20th June 2022. He argued that, the chain was broken verbally and in document, and it was not proper to convict the appellants based on exhibit P4, which appeared to have been tempered. Mr. Samwel argued on ground 2, that, the trial judge grossly erred in law by convicting the appellants relying on the seizure certificate for seizing exhibit P4, which resulted from a search that was conducted in violation of the law. He argued that, the search and seizure of the bhangi, was done by Afande Patrick (PW5), who said that, he searched the vehicle, but he did not have a search warrant or an order from the 9

court permitting him to conduct the search without a search warrant contrary to section 38 of the Criminal Procedure Act, Cap 20 R.E 2019. He argued that searching without a warrant is illegal. He argued further that, the search was done at night as per the evidence of PW5, and this was in violation of section 41 of the CPA which requires a search to be executed on any day, including Sunday, and to be executed between the hours of sunrise and sunset. If the search is to be done at night, the police officer is required to apply to the court to permit him to execute it at any hour. That, the search that was conducted after the sunset and before the sunrise, without the permission of the court, was illegal. Mr. Samwel therefore prayed for the seizure note and the consignment of bhangi received in court as exhibit P6 and P4, respectively, be expunged as they were illegally obtained. Mr. Samwel argued on ground 7, that, if the chain of custody would be found broken, and the seizure is found illegally obtained, then there will be nothing left to ground the conviction of the appellants. He thus, rounded up his submissions by praying before the court to find that, the case for the prosecution was not proved beyond reasonable 10

doubt, and on that basis, the conviction and sentence passed be quashed and set aside, and the appellants be released from prison. Ms. Mbughuni opposed the appeal. She submitted that, the chain of custody was intact and was never broken. She submitted further that, the consignment (exhibit P4), was seized by PW5, Afande Patrick who took it to the Police Station Isaka and handed it over to PW3, the exhibit keeper, Afande Gerald. She submitted that, it is true that, PW3 retired in 2019, but before his retirement, all the processes of weighing the consignment and testing it before the Government Chemist were completed and the consignment was handed back to PW3 and was kept in the exhibit room. Ms. Mbughuni did not submit as to why the exhibit keeper who took over from PW3 did not testify. She also did not respond as to why the ledger book which PW3 said he signed it when he handed over the exhibits to the new exhibit keeper, Afande Salia was not exhibited in court as exhibit. Ms. Mbughuni referred to the case of Sano Sadiki & Another vs Republic (Criminal Appeal No.623 of 2021) [2023] TZCA 17476 (9 August 2023), arguing that, even though the paper trail seems broken, but there were the evidence of the witnesses who explained adequately on how the consignment moved from the point it was seized to when it was taken for weighing, and for ii

examination before PW1, and that after the examination, the consignment was returned to PW3, Afande Gerald and it was kept in the store room. Ms. Mbughuni did not respond on what was the paper trail after PW3 retired in 2019, and how the consignment was removed from the store room in 2022, until it reached PW1, who tendered it in court. Ms. Mbughuni, in responding to ground 2, submitted that, it is true that, a search warrant is required, but in the case at hand it was an emergency search and this is why the search was conducted without the search warrant. She referred to section 43 of the CPA, arguing that, since PW5, rushed to the barrier after being tipped by the informer, he could not obtain a search warrant from the OCD, as the OCD was not at the office at 5.00 o'clock in the morning. She maintained that, since it was an emergence, the law allows searching without a search warrant in emergencies. She denied that, the search was in violation of section 38 of the CPA. On ground 7, Ms. Mbughuni submitted that, the case was proved beyond reasonable doubt. That, as found by the trial judge, the witnesses were credible and reliable and it was safe to convict the appellants for the offence charged based on the available evidence 12

which was water tight. To buttress her arguments, she referred to the case of Furaha Alick Edwin vs Republic (Criminal Appeal No. 410 of 2020) [2023] TZCA 46 (23 February 2023). On rejoinder Mr. Constantine argued that, the submission by the State Attorney amounted to admission that, exhibit P2, which is a chain of custody document only shows the events up to 10/10/2018, when the bhangi was handed to PW3 by PW2 after collecting it from PW1, but after that, nothing was recorded. He argued further that, exhibit P2, should show the chain until the exhibits reached the court and exhibited as evidence. That, the prosecution witnesses talked about a ledger book which shows that PW3 handed over the exhibits to Afande Salia, but the ledger book and Afande Salia are not on record and this is a demonstration that, the paper trail was inadequate and the chain of custody had a gap. Mr. Samwel also submitted in a rejoinder that, the respondent failed to substantiate that, the search was an emergency. Having heard the rival submissions of the counsel for both sides, and being aware of the duty of the appellate court that, we are shall re-appraise the evidence as a whole and to subject a fresh and exhaustive examination of the evidence and draw our own conclusion. 13

In doing so, we must make an allowance for the fact that, the trial court has had the advantage of hearing and seeing the witnesses. Having considered the grounds of appeal, the evidence on record, and the counsels' submissions, we find that, the key issues for our determination are: - one, whether the search and seizure of exhibit P4, the consignment of bhangi was done in accordance with the law, two, whether the chain of custody for handling exhibit P4 was broken, and three, whether the prosecution proved the guilt of the appellants as charged beyond any reasonable doubt. On the first issue, the record clearly reveals that, and as admitted by Ms. Mbughuni, that, the search of the vehicle at the Natural Resources gate or barrier was conducted without a warrant. That, PW5 rushed to the barrier after receiving information from an informer about the vehicle which allegedly was loading bhangi from Isaka for trafficking it to Dar es Salaam. He directly proceeded to the barrier without a search warrant and searched the vehicle. The respondent's excuse as submitted by Ms. Mbughuni was that, this was an emergency search, as it was before the sunrise and since the office was not yet open, he could not get the search warrant from the OCD who was not in the office at that time. On this, we agree with the submissions of the 14

counsel for the appellants that, the prosecution failed to demonstrate and substantiate that, this was an emergence search. PW5, testified that, before he proceeded to the barrier, he went to the office, he changed into a uniform, called PW8, and went to the scene. The only thing he did not do was to get a search warrant from the OCD. He also testified that he called the OCD after he had already seized the vehicle and the OCD was available on the phone. He could have phoned the OCD soon after he received a tip from the informer in order to get prepared for the search and seizure. We therefore agree that, the prosecution failed to substantiate their stance that, this was an emergence search. This unlawful procedure tainted the entire seizure process, rendering the seizure certificate (Exhibit P6) and the seized bhangi (Exhibit P4) improperly procured and therefore wrongly admitted. We have repeatedly held that, a search without warrant must be strictly justified to be an emergency. We have stated in Samwel Kibundali Mgaya vs Republic (Criminal Appeal 180 of 2020) [2022] TZCA 342 (14 June 2022), that "Deducing from the quoted provisions o f law, no search of a premises shall be effected without 15

one; search warrant, two; the presence of the owner of the premises, occupier or his near relative at the search premises, three; the presence of an independent witness who is required to sign to verify his presence and four; issuance o f a receipt acknowledging seizure of property." In addition, where police receive prior information from an informer, as in this case, this removes the element of surprise needed for an emergency search under section 42(l)(b) of the CPA. We are guided by the decision in Shabani Ramadhani Abdala @ Kindamba vs Republic (Criminal Appeal No. 120 of 2021) [2023] TZCA 17352, where it was held that prior information negates the emergency exception, making a search without warrant unlawful and leading to the expunging of seized evidence. This aligns with our earlier holding in Samwel Kibundaii Mgaya vs Republic (Criminal Appeal 180 of 2020) [2022] TZCA 342, which requires strict justification for searches without warrants in all cases. Again, as submitted by Mr. Samwel, the search conducted at night without the permit from the court is a violation of section 41 of the CPA, which provides:

S. 41 A search warrant may be issued and executed on any day, including Sunday, and may be executed between the hours of sunrise and sunset but the court may, upon application by a police officer or other person to whom it is addressed, permit him to execute it at any hour. This ground of appeal has merit and it is hereby allowed. The search and seizure having been conducted in violation of section 38 and 41 of the CPA, has resulted in the search being held illegally, hence the exhibits tendered and received as evidence obtained from an illegal search to wit, exhibit P6, the seizure note, and exhibit P4, the consignment of bhangi is hereby expunged from the records. Regarding the 2n d issue, it is true that, the chain of custody document ended on 10/10/2018, when the consignment was returned by PW2 Afande Mugale to exhibit keeper, PW3 Afande Gerald. There is no explanation from the prosecution on how exhibit P4 was handled after the retirement of PW3 in 2019, and how it reached to PW1, who then tendered it in court in the year 2022. In Paulo Maduka & Others vs Republic, (Criminal Appeal No. 110 of 2007) [2009] TZCA 69 (28 October 2009), we held that: 17

"Thereafter, a foolproof chain o f custody would have been set in motion. By "chain o f custody" we have in mind the chronological documentation and/or paper trail showing the seizure, custody, control, transfer..." The State Attorney failed to justify the gap, and inconsistency in handling exhibits P4, from when PW3 retired in 2019. To whom the exhibits were handed over after the retirement of PW3, and how and when the exhibit had reached PW1, who then produced it in court as evidence is not clear. Failure in documenting the handling, transfer, or storage of evidence, created doubt regarding its integrity. This ground of appeal also succeeds. Lastly, on whether the prosecution proved the guilt of the appellants as charged beyond any reasonable doubt, having expunged the subject of the case, that is exhibit P4, the consignment of bhangi, and the seizure note, exhibit P6, for seizing the consignment of bhangi and the vehicle, coupled with the broken chain of custody, destroyed the prosecution case in its entirety, nothing is left on record to establish the guilt of the appellants beyond reasonable doubt. Consequently, based on the above, the appeal is allowed. The convictions are quashed and the sentences meted thereon are set 18

aside. We order the immediate release of the appellants from prison, unless held for any other lawful cause. DATED at SHINYANGA this 5th day of March, 2026. S. A. LILA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL The Judgment delivered this 5th day of March, 2026 in the presence of Mr. Frank Samwel, learned counsel for the Appellant, Mr. Leonard Kiwango, learned State Attorney for the respondent/Republic by virtual Court and Mr. Leopord Mabugo, Court Clerk; is hereby certified as a true copy of the original.