Muhumbwa Muhumbwa @Matoroke @Samwel Muhumbwa vs Republic (Criminal Appeal No. 116 of 2022) [2026] TZCA 163 (27 February 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA ( CORAM: NDIKA, J.A., FIKIRINL J.A. And ISMAIL J.A.) CRIMINAL APPEAL NO. 679 OF 2023 MUHUMBWA MUHUMBWA@MATOROKE @SAMWEL MUHUMBWA............................................................... APPELLANT VERSUS THE REPUBLIC.......................................................................... RESPONDENT (Appeal from Judgment of the High Court of Tanzania, at Musoma) (M tujya J ) dated this 18th day of May, 2023 in Criminal Appeal No. 116 of 2022 JUDGMENT OF THE COURT 16th & 27th February, 2026 FIKIRINL J.A.: The appellant and two others namely; Mani Mara @ Mogosi @Mwita Marwa Mogosi and Isack Nyanswi @ Marwa were charged with six counts including economic and non-economic offences as follows; 1s t count; unlawful entry in the National Parks contrary to 21 (1) (a) and (2) section 29 (1) of the National Parks Act Cap. 282, R.E 2023, as Amended by the Written Laws (Miscellaneous Amendment) Act No. 11 or 2003. 2n d count; unlawful i possession of weapons in the National Park contrary to section 24 (1) (b) and (2) of the National Parks Act, Cap 282, R.E 2023. 3r d count; unlawful killing of animal contrary to section 55 (1) and (2) of the Wildlife Conservation Act No. 5 of 2019, Cap. 283 R.E. 2023. 4th count; unlawful possession of armaments contrary to section 11 (1) of the Armaments Control Act, Cap 246. R.E. 2002, read together with paragraph 32 of the First Schedule to and sections 57 (1) and 60(2) of the Economic and Organized Crime Control Act, Cap 200 R.E. 2023. 5th count; unlawful possession of ammunitions contrary to section 21 of Firearms Arm and Ammunitions Control Act, No. 2 of 2015, read together with Paragraph 31 of the First Schedule to and Section 57 (1) and 60 (2) of the Economic and Organized Crime Control Act [CAP 200 RE. 2002] as amended. 6th count for the appellant; unlawful possession of Government Trophy contrary to section 86 (1) and (2) (c) of the Wildlife Conservation Act No. 5 of 2009 read together with Paragraph 14 of the First Schedule to and section 57 (1) and 60 (2) of the Economic and Organized Crime Control Act [CAP. 200 R.E.2002] as amended by the written laws (Miscellaneous Amendments Act No. 3 of 2016. It was alleged that on 2n d April, 2018, at Sonzo area within Serengeti National Park, Serengeti District, Mara Region, the appellant and two others 2 entered the National Park armed with a machine gun, make AK-47, serial number 15213393, and killed an elephant valued at TZS 32,700,000.00, the property of the Government. Both acts were committed without a written permit from the Director of Wildlife. It was further alleged that on 6th May, 2018, at Nyamakendo Village within Serengeti District, Mara Region, the appellant and two others were found in unlawful possession of the same AK-47 machine gun. On the same date and place, they were also found in unlawful possession of eleven rounds of ammunition. In addition, the appellant was found in unlawful possession of fourteen pieces of dried hippopotamus meat valued at TZS 3,270,000.00, the property of the Government. They pleaded not guilty to all counts, and the trial court proceeded with a full hearing. The prosecution evidence established that, following a tip to the Police Force at Mugumu that the appellant was in unlawful possession of a weapon used to kill animals, Assistant Inspector Kweka and fellow officers went to Namiturumwa hamlet, Nyamakendo Village, on 6th May, 2018. They met the hamlet leader, Nyamuhanga Ndera, who led them to the appellant's house. At about 3:00 hours, A/Insp. Kweka conducted a search and found fourteen pieces of dried hippopotamus meat, one AK-47 rifle with serial number 3 15213393 (exhibit P2), and a magazine containing eleven rounds of ammunition (exhibit P3). PW1 completed a search warrant (exhibit PI), listing all items found, which was signed by PW1 G.3071 D/C Geniune, the appellant, and the hamlet leader as an independent witness. The appellant was interrogated and admitted using the weapon (exhibit P2) to kill elephants in cooperation with two others not parties to this appeal. On the same day, Mani Marwa @ Mugosi (the 2n d accused at trial) was arrested, and together they were taken to Mugumu Police Station. Later that day, Isack Nywaswi @ Marwa (the 3rd accused at trial) was arrested and brought to Mugumu by H.2300 P/C Wilson Mugulyati (PW4). Upon further interrogation, the appellant and his co-accused explained that on 2n d April, 2018, they had entered Serengeti National Park at Sonzo area, killed an elephant, removed its tusks, and sold them in Kenya. PW1 prepared a handling exhibit form and a chain of custody form (exhibits P4 and P5) for the seized items, and also recorded a cautioned statement of Mani Marwa @ Mugosi (exhibit P6). On 7th May, 2018, Wilbroad Vincent, PW2 identified and valued the government trophies found in the appellant's possession. He confirmed the fourteen pieces of dried meat were hippopotamus and valued them at TZS 3,270,000.00 preparing a trophy valuation certificate (exhibit P10). On the same day, PW1 prepared an inventory (exhibit P7) and sought a disposal order from the court, which was granted, and the meat was destroyed. On 20th May, 2018, PW1 recorded the witness statement of A/Insp. Kweka, who later died before testifying; his statement was admitted at trial as exhibit P8. Subsequently, exhibits P2 and P3 were sent to the ballistic laboratory for examination. Inspector Paul Mathusela @ Mgema (PW3) examined them and confirmed that exhibit P2 was a 7.62mm caliber firearm, matching the eleven live rounds of ammunition, and that both were in good working condition. His findings were recorded in the ballistic laboratory report (exhibit P12). In the defence evidence, the appellant and two others admitted that they were arrested at different times on 6th May, 2018 and taken to the Police Station before being arraigned in court. However, the appellant disputed participation in the alleged offences. He refuted the claim that he was found in possession of exhibit P2, exhibit P3, or the fourteen pieces of hippopotamus meat. He further denied signing the search warrant (exhibit PI). 5 After a full trial, the trial court found the appellant guilty on the 4th and 5th counts, while the two others were found not guilty of any offence and were acquitted. The appellant was convicted and sentenced to twenty years' imprisonment on each count, the sentences to run concurrently. His appeal to the High Court was unsuccessful. Still aggrieved, he filed the present appeal containing six grounds. The hearing of the appeal was not premised on the grounds of appeal put forward, and therefore we shall not reproduce them, for reasons that will be demonstrated shortly. On 16th February, 2026, the hearing of the appeal took place. In attendance were the appellant, who appeared unrepresented and fended for himself, and Ms. Monica Hokororo, learned Principal State Attorney, together with Mr. Nico Malekela and Ms. Happiness Machage, both learned State Attorneys, representing the respondent. The appellant let pass his right to go first in expounding on his grounds of appeal and prayed for the respondent to begin, reserving his right to wrap up. 6 Ms. Hokororo, who addressed the Court on behalf of the respondent's team was forthright that the respondent supported the appeal. The main rationale for this stance was that the consent and certificate issued by the Director of Public Prosecutions (DPP) were defective, thereby vitiating the trial court's jurisdiction. In support, she cited the case of Peter Kongori Maliwa & Others v. R [2023] TZCA 17350. The learned Principal State Attorney discouraged ordering a retrial, acknowledging that the prosecution case had issues with the chain of custody. She cautioned that if a retrial were ordered, the prosecution would likely seize the opportunity to mend its case. She therefore urged the Court to nullify the proceedings, quash the conviction, set aside the sentence, and release the appellant. The appellant, a lay person in legal matters, implored the Court to consider his grounds of appeal and allow the appeal, thereby setting him free to return to his family. It is evident that proceedings conducted without jurisdiction upon issuance of defective consent and certificate are a nullity. We have a long list of previous decisions to that effect, including Joseph Ngadupa Akilimbaya & Another v. R [2024] TZCA 39, CRDB Bank Pic v. Lusekelo Mwakapala [2023] TZCA 17637, and Peter Kongori Maliwa (supra). In CRDB Bank Pic (supra), the Court observed: "It is worth noting that the question o f jurisdiction is crucial and must be determined by the court or tribunal at the earliest opportunity. Jurisdiction is everything, without which a court has no power to determine the dispute before it. Where a court has no jurisdiction ; there would be no basis for continuation o f proceedings. Generally\ a court is barred from entertaining a matter in which it has no jurisdiction . " For lack of jurisdiction, we are of the opinion that the appellant was improperly tried, convicted, and sentenced. Consequently, the trial at the District Court and the proceedings before the High Court were all a nullity. Pursuant to section 6(2) of the Appellate Jurisdiction Act, Cap. 141 R.E. 2023, we hereby nullify the proceedings, judgment, and sentence of both lower courts. Considering the acknowledgment by the learned Principal State Attorney, that the prosecution case suffered a number of gaps, we find 8 refraining from ordering retrial the appropriate course to take. Instead order the release of the appellant forthwith, unless held for other lawful reasons. DATED at MUSOMA this 26th day of February, 2026. G. A. M. NDIKA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Judgment delivered this 27th day of February, 2026 in the presence of appellant in person and Jonas Kivuyo, learned State Attorney for the respondent via video link from Musoma Prison and NPS Office-Musoma respectively and Mr. Shabani Kanyai, Court Clerk; is hereby certified as a true copy of the original.