Miraji Yakobo Nyoka & Others vs Republic (Criminal Appeal No. 387 of 2022) [2026] TZCA 170 (2 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: KOROSSO. J.A.. MASHAKA. J.A. And NGWEMBE, J J U CRIMINAL APPEAL NO. 387 OF 2022 MIRAJIYAKOBO NYOKA MMASA JUMA............... CHARLES SIMEO .......... 1 st a p p e l l a n t 2 n d APPELLANT 3rd APPELUNT VERSUS THE REPUBLIC RESPONDENT (Appeal from the decision of the High Court of Tanzania at Arusha) JUDGMENT OF THE COURT 17th February & 2n d March, 2026 NGWEMBE, J.A.: The appellants were jointly charged, convicted and sentenced for unlawful possession of Government Trophies contrary to section 86 (1) (2)(b) (c)(ii) and (iii) of the Wildlife Conservation Act, No. 5 of 2009 read together with paragraph 14 of the 1s t Schedule to and sections 57 (1) and 60 (2) of the Economic and Organized Crime Control Act, Cap 200 R.E. 2002 (the EOCCA). The particulars of the charge alleged that the appellants were found in unlawful possession of various pieces of meat from wildlife animals, (Mzuna, J.l dated the 1st day of April, 2022 in Criminal Appeal No, 08 of 2021 1

including lesser kudu and greater kudu in first count; dik dik and impala in second count; and red duiker in the third count. All the offences were said to have been committed by the appellants jointly on 10th December, 2018, at Ngage village within Simanjiro District in Manyara Region. It is on record that, on 10th December 2018 at around 5:00am, PW3 received information from an anonymous informer on suspicious of the appellants travelling on a motorcycle with illegal meat of wildlife animals. He promptly communicated and alerted Paulo Shepi, a Village Executive Officer (VEO) and Kimati Salumi, a Village Chairman (PW4). On the same date at around 6:00am convened a meeting at the village office with other people with a view to inquire and follow up the information they received from the anonymous informer. During their investigation, they followed tyre marks and blood trail traces along the way. In an unfinished house, to where the trail had led them, they saw a motorcycle, make Kinglion, bearing registration no. MC 675 BWW parked outside. Inside that building, they found and arrested the appellants, Miraji Yakobo Nyoka, Mmasa Juma and Charles Simeo. Also, they found a disabled woman named Monica Mbwambo who at the initial stages of trial, was charged as 4th accused person, but later on the Director of Public Prosecutions entered a nolle prosequi. 2

The district wildlife officer one Walter Fatel Urio (PW5) testified to have seen at the crime scene one greater kudu, two small lesser kudus, one impala and one red duiker, four bush knives, two modified torches and a motorcycle. The appellants were in the course of skinning those wildlife animals. They seized all what they saw, and duly prepared a seizure certificate and the appellants were taken to the Wildlife office for Simanjiro. The appellants in their defence, denied generally to have committed the offence. The first appellant claimed that, the case was framed due to his misunderstanding with PW3. He narrated on how he was arrested and tortured when he was in the hands of the police officers. The 2n d appellant testified that the charges were motivated by their failure to give a bribe to PW3 who demanded from them at the scene. Equally, the 3r d appellant testified that they were arrested at Monica's place where they went to resolve a dispute but, in the course, they saw police officers confronting the 1 s t appellant who was on the motor vehicle. All appellants denied to have been arrested with anything connected to the charged offence and to have signed any document. Given the full trial, the District Court convicted the appellants on all counts and sentenced them to serve twenty (20) years’ imprisonment. The sentence was ordered to run concurrently. 3

The appellants' appeal before the High Court hit a snag, as the first appellate court dismissed the appeal and upheld the trial court's conviction and sentence. It is noted that despite the expungement of exhibits PEI, PE2, PE3, PE4 and PE5 for improper admission, the High Court ruled that the remaining evidence was sufficient to sustain conviction. Undaunted, the appellants have preferred the instant appeal predicated on seven (7) grounds in the original memorandum of appeal lodged on 8th August, 2022 and three (3) additional grounds in the supplementary memorandum of appeal lodged on 2n d February, 2026, making a total of ten (10) grounds. Owing to what transpired during the hearing before us, we do not intend to reproduce them here. The appearance for hearing before us, Mr. Raphael Rwezahula, learned State Attorney was for the respondent Republic, while the appellants appeared in persons without legal representation. When the appellants were invited to address the Court, they adopted their grounds of appeal and the jointly written statement of arguments made under rule 74 (1) of the Court of Appeal Rules, 2009 which was lodged on 13th February, 2026. Finally, they invited the Court to consider them, allow their appeal and set them free. In brief, the appellants are complaining about failure of the prosecution to prove the offence against them to the required standard 4

due to several procedural irregularities. Also, they are challenging the jurisdiction of the trial court pointing that the consent to prosecute was issued by a Regional Prosecution Officer under a wrong provision of law. On the side of the respondent, Mr. Rwezahula expressed the respondent's stance to support the appeal mainly on one major ground that the offence charged against the appellants was not proved to the hilt. The learned State Attorney itemized two ingredients of the offence of unlawful possession of government trophy that: first, the accused person must be found in possession of the government trophy; and two the accused person had no permit from the Director of Wildlife. Elaborating on the first element, he pointed that there was no proof that the appellants were found in possession of the alleged government trophy. He explained that they were alleged to have been found in possession of a greater kudu and lesser kudu but no explanation was adduced to distinguish them from the meat of other domestic animals. More so, the procedure to destroy that meat was faulted for failure to involve the appellants in the process of disposing the exhibits. He referred the Court to our decision in Buluka Leken Ole Ndidai & Another v. Republic (Criminal Appeal No. 459 of 2020) [2024] TZCA 116 (21 February 2024) where the Court provided five stages to follow before a perishable exhibit is destroyed: first, petition for order to destroy the 5

exhibit; second, in that petition, the accused must be present; third, the accused must be asked as to his comments or remarks or objections as regards to the perishable exhibit sought to be destroyed; fourth, the magistrate shall record the involvement of the accused and his responses; and fifth, the comments or remarks or objection of the accused must be recorded and shall be signed by the respective magistrate. Mr. Rwezahula, submitted that all those procedural requirements were faulted. He further argued that, all relevant exhibits including the inventory were expunged as it appears in page 174 of the record of appeal. He emphasized that in the absence of relevant exhibits, the remaining evidence of PW2 and PW5 could not prove the offence against the appellants. He thus, implored the Court to allow the appeal. After a careful scrutiny of the record of appeal before us and the respective submissions, we agree with the learned State Attorney that, the issue for our consideration is whether the charge was proved to the hilt against the appellants. It is settled law that, the charge is the foundation of the trial and it is incumbent on the prosecution to marshal evidence to support the charge in order to prove the offence charged beyond reasonable doubt. That means any prevalent doubt, will consequently benefit the accused persons. In regard to this appeal, the first appellate court expunged all relevant 6

exhibits, that is the valuation report of the alleged government trophy (PEI), certificate of seizure (PE2), inventory form (PE3), the motorcycle, four machetes (Panga), and four modified torches together with chain of custody form (PE5) on the reason that they were improperly admitted. We are at one with the learned counsel and the High Court's decision that those exhibits were unprocedural admitted in evidence. See, Buluka Leken Ole Ndidai & Another v. Republic (supra) the Court instructed the procedure of disposal of perishable exhibits as follows: "In our view, that simple linear statement is insufficient. Because it leaves many more questions unanswered, in view o f this Court's authorities we referred to above. Such queries are like; one, if the suspects were present before the magistrate, where is it indicated in the inventory, that the suspects were present? two, were they asked for any comment, remark or objection as regards the exhibit which was being sought to be disposed of? If yes, where is the record of their comment, remark or observation in that respect." The Court has insisted the involvement of the accused during the process of disposal of exhibits in decisions without number, including Samuel Saguda @ Sulukuka & Sahili Wambura v. Republic., Criminal Appeal No. 422 "B” of 2013; Mohamed Juma @ Mpakama v. Republic (Criminal Appeal No. 385 of 2017) [2019] TZCA 518 (27 7

February 2019) and James Yassin Lati v. Republic (Criminal Appear No. 1 7 3 of 2023) [2025] TZCA 1031 (7 October 2025). In the above cases, the Court stressed that, failure to involve the accused person in the process, make the evidence inadmissible. Despite the fact that the first appellate court after expungement of all those exhibits, viewed that the remaining oral evidence was capable to sustain conviction, however, we have a different view. As observed by the learned State Attorney, that upon expungement of those exhibits, the remaining evidence was not capable to sustain conviction against the appellants. It is common knowledge that the offence under section 86 (1) of the Wildlife Conservation Act [Cap 283 R.E. 2022] (the Act) read together with the EOCCA must be proved by establishing and proving cumulatively, possession of government trophy and without a licence or permit from the Director of Wildlife. In the instant appeal and as earlier on observed, the prosecution failed to establish and prove the first element of the offence. In the absence of proof of existence of the government trophy, the offence cannot be established and proved beyond reasonable doubt. We are alive that, oral evidence can prove the offence if it is sufficient on the basis of credibility and reliability of witnesses. In the instant appeal, the oral evidence had established that the appellants were

found in possession of the items said to be the meat of impala, red duiker, dik dik, greater kudu and lesser kudu, but there is no evidence that such meat was of those animals. Moreover, there was no expert witness who examined the said meat and found them to be from the mentioned animals. The trial and first appellate courts were not availed with evidence to prove the said meat was a government trophy. In the case of Evarist Nyamtemba v. Republic (Criminal Appeal No. 196 of 2020) [2021] TZCA 294 (12 July 2021), we observed that where the valuation form and the relevant evidence is expunged, the Court may evaluate the oral evidence to see if it proves the ingredients of the offence, particularly that the items found in possession of the accused persons were actually government trophy. This was well considered in various decisions of the Court including the case of Simon s/o Shauri Awaki @ Dawi v. Republic (Criminal Appeal No. 62 of 2020) [2022] TZCA 51 (23 February 2022), we emphasized that when part of the evidence is expunged, the Court should analyse and evaluate the remaining evidence to find if it proves the offence so as to uphold conviction. In this case, the first appellate court did not reevaluate the remaining evidence to find if it were capable to sustain conviction. We therefore, agree with the learned State Attorney that in the absence of evidence to prove that those pieces of meat were government 9

trophy, this rendered the case against the appellants unproven beyond reasonable doubt. We are well-aware on the principle which requires the second appellate court not to interfere with the concurrent findings of the lower courts, unless there is misdirection or misapprehension of evidence which occasioned miscarriage of justice. See, Wankuru Mwita v. Republic, Criminal Appeal No. 219 of 2012 (unreported), where we observed: "The law is well-settled that on second appeal, the Court will not readily disturb concurrent findings of facts by the trial court and first appellate court unless it can be shown that they are perverse, demonstrably wrong or dearly unreasonable or are a result of a complete misapprehension of the substance, nature or none direction on the evidence; a violation of some principle of law or procedure or have occasioned a miscarriage of justice." Owing the nature of the remaining evidence, the reasoning and concurrent finding of the courts' below, can be interfered with for good reason that both courts below misapprehended the evidence and principles of criminal law, causing a miscarriage of justice to the appellants. Had the trial and first appellate courts evaluated the remaining oral evidence, after expungement of exhibits as we have discussed above, they would have 10

arrived in a different conclusion that it was not capable to prove the offence beyond reasonable doubt. For the aforesaid reasons, this appeal is merited. Accordingly, we quash the conviction and set aside the sentence. We order immediate release of the appellants from the prison unless otherwise are held for other lawful cause. DATED at ARUSHA this 27th day of February, 2026. Judgment delivered this 2n d day of March, 2026 in the presence of the Appellants in person, Ms. Neema Mbwana, learned Senior State Attorney for the Respondent/Republic and Ms. Stella Mlaponi, Court Clerk; is hereby certified as a true copy of the original. W. B. KOROSSO JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL DEPUTY REGISTRAR COURT OF APPEAL