Msibha Kibunda @ Paul Kibunda & Another vs Republic (Criminal Appeal No. 250 of 2024) [2026] TZCA 158 (27 February 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCORAM: LEVIRA, J.A., MPEMU, J.A. And ISSA. J.A.^ CRIMINAL APPEAL NO. 250 OF 2024 MSIBHA KIBUNDA @ PAUL KIBUNDA MARIA JOHN @ KALULA ................... 1st a p p e lla n t 2 nd APPELLANT VERSUS THE REPUBLIC RESPONDENT (Appeal from the decision of the Resident Magistrates Court of Mwanza at Mwanza) (Shao, PRM with Extended Jurisdiction^ dated the 21s t day of July, 2023 16th & 27th February, 2026 ISSA, J.A.: The appellants, Msibha Kibunda @ Paul Kibunda and Maria John @ Kalula were arraigned before the Resident Magistrates Court of Mwanza sitting at Mwanza (the trial court) (Lema, RM) for the offence of armed robbery contrary to section 287A of the Penal Code, Cap. 16. The charge was as follows: "STA TFMENT O F OFFENCE ARMED ROBBERY contrary to section 287A o f the Pena! Code, Cap. 16 o f the Laws (R.E. 2019). PARTICULARS OF OFFENCE in RM Criminal Appeal No. 16 of 2023 JUDGMENT OF THE COURT

MSIBHA S/0 KIBUNDA @ PAUL KIBUNDA and MARIA D/0 JOHN @ KALULA on 4h day o f March, 2021 at Mkolani area within Nyamagana District in the City and Region o f Mwanza did steal sofa set valued at Tsh. 1,200,000/=, two fridges make Hitachi and Hot point valued at Tsh. 4,500,000/=, flat screen make Sharp valued at Tsh. 800,000/=, 13 plastic chairs make Jambo valued at Tsh. 202,500/=, 1 microwave make Panasonic valued at Tsh. 350f000/=, 1 gas cooker valued at Tsh. 300,000/=, 3 big clothes bag valued at Tsh. 225,000/=, 3 small bags valued at Tsh. 75,000/=, 1 white bag valued at Tsh. 15,000/=, water glasses valued at Tsh. 300,000/=, 2 hand bags valued at Tsh. 140,000/=, kitchen plates valued at Tsh. 400,000/=, spoons valued at Tsh. 300,000/=, tea cups valued at Tsh. 300,000/=, 20 pairs o f bedsheets valued at Tsh , 900,000/=, 8 blankets valued at Tsh. 520,000/=, 10 towels valued at Tsh. 300,000/=, different type o f clothes valued at Tsh. 2,500,000/=, 3 big buckets (madiaba) valued at Tsh. 75,000/=, 10 cooking pots valued at Tsh. 250,000/=, 6 buckets valued at Tsh. 90,000/=, plastic kitchen utensils valued at Tsh. 500,000/=, 2 wall watches valued at Tsh. 40,000/=, 40 hotpots valued at Tsh. 400,000/=, 6 thermos valued at Tsh. 108,000/=, 5 door locks (vitasa) valued at Tsh. 175,000/=, 48 coach covers (vitambaa vya makochi) valued at Tsh. 300,000/=, window curtains valued at Tsh. 500,000/=, sugar and salt pots valued at Tsh. 25,000/=, electric kettle valued at Tsh. 80,000/=, kitchen tray valued at Tsh. 15,000/=, private

and sleeping clothes valued at Tsh. 500,000/= all properties valued at Tsh. 14,840,500/= the properties o f one ZUBEDA D/0 KASWINDA and immediately before stealing they did threat the said ZUBEDA D/0 KASWINDA by using dub in order to obtain and retain the said properties." The background facts giving rise to this appeal were these: the 1s t appellant was a nephew of Zubeda Kaswinda, the victim (PW2) and there was a time he used to reside in the victim's house. The 2n d appellant was a victim's maid who was also staying at the victim's house. It was alleged that, on 4th March, 2021 the appellants jointly armed with machete and club invaded the victim, tied her hands and ushered her to her room. The appellants then managed to steal various household items as seen on the charge which were carried by a rented car to Nyegezi Bus Stand. When the victim recovered from shock, she raised an alarm and the neighbours went to her rescue. The appellants were arrested inside the house and the trial ensued. The appellants pleaded not guilty to the charge; hence, the prosecution paraded twelve witnesses to prove the charge. After a full trial, the trial court found the offence of armed robbery was not proved against the appellants, as there was no evidence that any weapon was used in committing the offence. Nevertheless, it found the 1s t appellant guilty of the offence of robbery with violence contrary to

sections 2.85 and 286 of the Penal Code, while the 2n d appellant was found guilty of the offence of conspiracy to commit the offence contrary to section 384 of the Penal Code. Upon conviction, the 1s t appellant was sentenced to serve fifteen years in prison whereas the 2n d appellant was sentenced to serve five years in prison. Aggrieved, the appellants jointly lodged their appeal which was heard by the Resident Magistrates Court of Mwanza presided by Shao, PRM with Extended Jurisdiction (the 1s t appellate court) who found the appeal meritless and dismissed it on 21s t July, 2023. Undaunted, the appellants jointly lodged their appeal to this Court. The notice of appeal was filed on 26th July, 2023, but the 2n d appellant never lodged a memorandum of appeal. The 1s t appellant, on the other hand, lodged a memorandum of appeal containing eleven grounds of appeal on 8th May, 2024 and supplementary memorandum of appeal containing one ground of appeal on 21s t July, 2025. When the appeal was called on for hearing on 16th February, 2026 the 1s t appellant appeared in person unrepresented while the 2n d appellant did not enter appearance. The Court was informed through a letter from the Prison Officer In-charge of Butimba Prison dated 10th February, 2026 that, the 2n d appellant had completed serving her sentence in prison on 28th November, 2025. For that reason, she was not served with the

summons for the hearing of the instant appeal as her whereabouts were unknown. Hence, the Court proceeded to hear the appeal from the 1s t appellant taking into consideration that if she will resurface and be interested to pursue her appeal, she should be able to do that. The respondent Republic had the services of Mr. Benedict Kivuma Kapela, learned Senior State Attorney assisted by Ms. Sarah Perias Simtala and Mr. Sileo Leonce Mazullah, learned State Attorneys. The 1s t appellant adopted his grounds of appeal in the main memorandum of appeal and abandoned the supplementary memorandum of appeal. He opted for the Republic to submit first and would rejoin later if necessary. For the reason that will be apparent shortly, we will not reproduce the grounds of appeal. Upon taking the floor, Mr. Kapela outrightly supported the appeal on the 11th ground of appeal that, the prosecution failed to prove the offence with which the appellant was charged beyond reasonable doubt. Elaborating, Mr. Kapela submitted that the charge was not proved beyond reasonable doubt because of variance between the charge and the evidence. Firstly, he argued that the charge enumerated various properties which were stolen from the victim (PW2), but the Republic failed to prove the properties stolen as they appeared in the charge. PW2 in her testimony failed to mentioned those properties. She kept on

repeating that everything was stolen without enumerating what was stolen. Further, even those items which were mentioned on page 28 of the record of appeal, they were not reflected in the charge. To bolster his argument, he cited the Court's decision in Flavian Gasper v. The Republic [2024] TZCA 525. Secondly, Mr. Kapela argued that according to the charge the value of properties alleged to be stolen is TZS. 14,840,500.00, but the victim in her testimony appearing on page 25 to 31 of the record of appeal never mentioned the value of the property. Hence, the charge was not proved. To substantiate the point, he cited the Court's decision in Issa Mwanjiku @ White v. The Republic [2020] TZCA 1801. Lastly, he argued that there is variance on the weapons used to threaten the victim. According to the charge, the appellants used a club to threaten the victim, but PW2 on page 26 of the record of appeal testified that the appellants had machete and a club and in fact, it was the machete which was used in threatening the victim. To bolster his argument, he cited the Court's decision in Chamungo Richard @ Kipingu v. The Republic [2022] TZCA 255. He concluded that the prosecution failed to prove the case beyond reasonable doubt. Hence, he prayed for the Court to allow the appeal.

The 1s t appellant did not have much to say in response to the submissions made by the Republic, he prayed to the Court to consider his grounds of appeal and then set him free. On our part, we entirely agree with the submissions of Mr. Kapela that, there is a remarkable variation between what is alleged in the particulars of the charge and the prosecution evidence in the record of appeal. We shall demonstrate our concurrence with Mr. Kapela's submission. According to the record of appeal, the victim testified as follows: "When I asked the accused person ; he said they had already taken the household properties to Morogoro transit vehicles. My sister made a follow up to the said transit vehicle stand and found all the properties. We therefore made arrangements and brought properties back home. I can recognise the said properties because I purchased them a long time ago. The sofa set are corner set cream in colour which I was given by my niece from UK, sharp TV flat screen Hitachi, refrigerators purchased in 2016 at the Military, Kenwood kettle with black handle, other kitchen utensils are familiar to me because I purchased them a long time ago and I have been using them for some time..., (PW2 was shown the said items). These are my stolen items as I stated here above. I can

identify them because I have been using them for many years. They are my kitchen utensils stored in the Jabas, two refrigerators, suit case and my corner set sofa, TV, chairs and other items. I pray for the court to receive or mark these items." Further, PW1, the first police officer to arrive at the scene of crime testified as follows: 'These are the items which we found outside the victim's house. They are: TV, 8 suitcase, microwave, fridge, kitchen utensils, 15 plastic chairs, small water tanks (Jaba), fridges (1 hot point and hitachi), one roundish/square sofa, Panasonic TV (Sharp), gas cooker (selim german)." The above description of the stolen items was scanty and left much to be desired. Many of the items were not mentioned and even those mentioned by PW1 and PW2 differs from the description in the charge. Further, even when PW2 was shown those items, she just mentioned them generally and did not specifically describe them as they appeared in the charge. Therefore, we have no doubt in our minds, that thestolen properties as they appeared in the charge were not identified by the owner of those items. The Court in Peter Marwa Mgore @ Roboti and

Another v. The Republic [2018] TZCA 670, stressed on the importance of identifying stolen properties. It stated: ’We have carefully gone through the evidence o f PW1 and PW2. None o f them made attempts to identify those properties which formed exhibits P1A (the alleged stolen clothes and a radio) as ought to have been. This Court has on several instances stressed that a bare allegation by the complainant claiming ownership o f the articles which are subject o f theft is not sufficient, particularly so when it involves the identity o f common articles?'. (Emphasis supplied) Further, there is an issue of value of those properties; the charge mentioned TZS. 14,840,500.00 as the value of the properties stolen and recovered, but PW2, the owner of those items did not testify on the value of those items. Therefore, the charge remained not proved as far as the value of the stolen properties are concerned. Furthermore, the charge alleges that the victim was attacked by two assailants who were armed with a club, but PW2, on the other hand, testified as follows: "At 8.00 am I got out o f my home and went quietly to Maria's room. The whole house was dark. I went to the sitting room and found two people

wearing masks. One was male and he was wearing a grey mask on his face and at his back there was a woman wearing a black mask. The man was holding a machete (panga) and the woman was holding a rungu [dub]. They opened the curtain and gave a sign o f remaining silent. It is the man who gave me that sign. Then they grabbed my neck and made me stay down and told me if I shout they would kill me. All that time we were speaking in a very low voice. The man pointed the panga on my neck and they started to cover my eyes, mouth ; hands and legs." PW2's testimony reveals that, the assailants were armed with a machete and a club. Further, it was a machete which was used in threatening her to part with her properties, but the charge, as seen above, did not even mention a machete. We therefore find that, the prosecution case was shaken to its root as the variance between the particulars of the offence in the charge and the evidence in the record was evident and was not remedied by amendment of the charge as provided for under section 234 of the Criminal Procedure Act, Cap. 20 (the CPA). There is no doubt in our minds that, the evidence in the record of appeal was not brought in line with the particulars of the charge. Dealing with similar situation, the Court in Sylvester Albogast v. The Republic [2016] TZCA 238 stated: 10

"7 7 7 /5 , is not ; however to say that prosecutors cannot make mistakes in drafting charges. But where there are such mistakes, the law has also provided a solution. The remedy, as suggested by this Court in Leonard Raphael and Another v. The Republic, Criminal Appeal No. 4 o f 1992 (unreported) is that:- "Prosecutors and those who preside over criminal trials are reminded that when, as in this case, in the cause o f trial the evidence is at variance with the charge and discloses an offence not laid in the charge, they should invoke the provisions o f section 234 o f the CPA 1985 and have the charge amended in order to bring it in line with the evidence." In the instant appeal, the variance between the charge and the evidence are significant and the variations would have necessitated amendment to the charge to bring it in line with the evidence. If the trial and the first appellate court considered those variations, they would have seen the need to amend the charge instead of the trial court convicting the 1s t appellant for a lesser offence of robbery with violence and the 1s t appellate court confirming the conviction, as the issue of variations of the charge and evidence on record is still unresolved. We are alive to the general practice that a second appellate court would not easily disturb or interfere and undo the concurrent findings of ii

two lower courts unless the two courts completely misapprehended the substance, nature and quality of the evidence resulting in an unfair conviction or where there was misdirection on evidence (see - Salum Mhando v. The Republic [1993] T.L.R. 170 and Director of Public Prosecutions v. Jaffari Mfaume Kawawa [1981] T.L.R. 143. In the instant appeal, we are of the settled view that the variations mentioned above went to the root of the prosecution case and the two lower courts misapprehended the evidence. It is well settled that in such a situation, failure to amend the charge sheet is fatal and prejudicial to the appellant. This is because such anomaly leads to serious consequences to the prosecution case. There is a plethora of cases where the Court has maintained this stance. To mention few: Mohamed Juma @ Mpakama v. The Republic [2019] TZCA 518, Noah Paulo Gonde and Another v. Republic [2020] TZCA 269 and Issa Mwanjiku @ White v. The Republic (supra). In the latter case, the Court stated: "We note that\ other items mentioned by PW1 to be among those stolen like , ignition switches o f tractor and Pajero were not indicated in the charge sheet In the prevailing circumstances o f this case, we find that the prosecution evidence is not compatible with the particulars in the charge sheet to prove the charge to the required standard."

In fine, we are of the considered view that the charge against the appellant was not proved to the required standard. Hence, for the foregoing reasons we allow the appeal, the conviction is hereby quashed and the sentence is set aside. The appellant to be released from prison forthwith unless held for other lawful purposes. DATED at MWANZA this 26th day of February, 2026. The Judgment delivered this 27th day of February, 2026 in the presence of the 1s t Appellant in person, the absence of the 2n d Appellant, Mr. Prince Massawe, learned State Attorney for the Respondent/Republic and Ms. Gloria Masige, Court Clerk; is hereby certified as a true copy of the original. M. C. LEVIRA JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL