Wilson January Kweka @ Mkenyaa vs Republic (Criminal Appeal No. 22 of 2023) [2026] TZCA 160 (27 February 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: MWANDAMBO. J.A.. MWAMPASHI. 3.A. And MLACHA J J U CRIMINAL APPEAL NO. 90 OF 2024 WILSON JANUARY KWEKA @ MKENYAA ..................................... APPELLANT VERSUS THE REPUBLIC.................................. .......................... ........ RESPONDENT (Appeal from the Decision of the Resident Magistrates Court of Arusha, at Arusha) (Mariki. PRM-Ext-Juris.l dated the 28th day of November, 2023 in Criminal Appeal No. 22 of 2023 JUDGMENT OF THE COURT 18th & 27th February, 2026 MLACHA. J.A.: The appellant, Wilson January Kweka @ Mkenyaa and Hamisi Ramadhani @ Juma Leso were arraigned at the District Court of Karatu at Karatu in Criminal Case No. 138 of 2022, charged of Armed Robbery Contrary to Section 287A of the Penal Code, Cap 16 of the Revised Edition 2019. Hamisi was found not guilty and acquitted. The appellant was found guilty and convicted. He was sentenced to thirty (30) years in jail. His first appeal was heard by the Resident Magistrates Court of Arusha with extended jurisdiction and dismissed. The background facts are reproduced, albeit briefly, as follows: Miraji Rajabu, a tour guide driver (PW4), went to a pub known as Lina Pub in Karatu town on 16/6/2022 at 21:00 hours to enjoy his evening. He stayed there up to 1:00 hours when he left in the company of the owner of the pub one Paskalina. While at Bwawani road, near Intercontinental Guest House, they met two people. As they were about to pass through, he was hit with a piece of an iron bar on his back. On turning back, he saw the appellant whom he had seen at the pub. He tried to fight back but was overpowered. He was soon hit heavily on his right leg which was broken. He fell down. They searched him and picked his wallet which had TZS. 565,000.00 and two mobile phones; one tecno battan and a smart Kitochi tingen. Paskalina ran away leaving him on the ground. A motor cyclist came to his rescue and sent him to the Police Station. He was given a PF3 and went to hospital. He could identify the appellant through electric lights from a school building which was nearby. The appellant was arrested and confessed to G1536 D/CPL Wendo (PW2) who recorded his cautioned statement, exhibit P2. He admitted to commit the crime. In his admission, he told the police that he gave the 2 mobile phone to his young brother Meshaki, a student at Mlima Sumawe Secondary School. When Meshaki was approached by the police, he said that he gave the mobile phone to his mother, Lilian Pantaleo. That, Hamisi Ramadhani was assigned to look for eligible buyers but he could not get any. Lilian agreed to receive the mobile phone which she produced. Lilian was arrested and charged with unlawful possession of property suspected to have been stolen or unlawfully acquired but was found not guilty and acquitted. In his defence, the appellant told the trial court that he had a dispute with Emmanuel Sule who had taken his money. He beat him. Emmanuel went to complain to the police who came to arrest him. He was taken to the Police Station on charges of assaulting Emmanuel Sule. While at the Police Station he was implicated with this case something which is false. He denied to commit the crime. The trial court could not find doubt in the prosecution case and convicted and sentenced the appellant as intimated above. The appellant presented a memorandum of appeal with 13 grounds but the disposal of the appeal turns on the general complaint that the charge was not proved on the required standard. 3 The appellant appeared in person whereas the respondent Republic was represented by Ms. Mary Lucas, learned Principal State Attorney who teamed up with Mr. Raphael Rwezahula, also learned State Attorney. When Ms. Lucas was invited by the Court to express her readiness to the hearing of the appeal, she informed the Court that she did not support the conviction and sentence imposed on the appellant based on ground one of appeal which has the complaint that, the prosecution did not prove the offence beyond reasonable doubt. She argued this ground on three limbs, namely; variance between the charge and evidence, defects in the particulars of the offence and failure to conduct an inquiry. On variance between the charge and evidence, Ms. Lucas made reference to the particulars of the offence, appearing at page 1 of the record of appeal, and submitted that whereas the charge refers to two mobile phones described as, "one mobile phone make tecno valued at TZS. 30,000.000 and one mobile phone make Tsmart valued a t Tshs. 70,000.00" the evidence of the complainant (PW4) appearing at page 25 of the record of appeal describes the mobile phones as," two mobile phones one tecno battan and the other sm art o fkito ch i tigen. The tecno was black in colour ;" She contended that, it is not clear whether tecno was equal to tecno battan'and whether Tsmart was the same as sm art o f 4 kitochi tiger 1 . Further, whereas the particulars in the charge have values of the mobile phones, PW4 did not mention the value of the mobile phones in his testimony. Submitting on the second limb, the learned Principal State Attorney contended that, the charge did not give a description of the place where the crime was committed. It gave a general description stating; "at Karatu township within Karatu D istrict in Arusha Region"w\\\c\\ was not enough to enable the appellant to know the place where the crime was committed. Making reference to our decision in William Felix Kulaya v. Republic [2025] TZCA 283, she submitted that, the charge was the basis of the complaints against the appellant as such it was supposed to give enough particulars to inform him of the case against him so that he could prepare his defence. She contended that describing the scene of crime as Karatu township was too general and denied the appellant right to know the place where the crime was committed. She contended further that, the prosecution had a right to amend the charge under section 234 (1) of the Criminal Procedure Act, Cap. 20 of the Revised Edition 2019 to rectify the defects in the first and the second limb but they did not do so. It was the submission of Ms. Lucas on the third limb that, the trial court relied on the confession of the appellant, exhibit P2, which was received in evidence without an inquiry despite of the fact that it was objected. Amplifying, she contended that, the appellant informed the trial court, as appearing at page 16 of the record of appeal, that he was not given right to read and sign on the statement, meaning that he denied making the statement but, all the same, the Magistrate received it into evidence without conducting an inquiry. Citing our decisions in Daniel Matiku v. Republic, [2019] TZCA 582 and Williamu Felix Kulaya (supra), she submitted that, where admission of the statement is objected, the trial court must stop everything and move to conduct an inquiry to ascertain the circumstances under which the cautioned statement was recorded before making its decision to admit it in evidence or reject it In conclusion, Ms. Lucas submitted that the Republic failed to prove its case beyond reasonable doubt and urged the Court to vacate the decisions of the lower courts, quash the conviction and set aside the sentence imposed on the appellant, and set him free. The appellant being a layman did not have anything useful to reply. He only welcomed the submission of the learned Principal State Attorney 6 and urged the Court to set him free so that he can return home and join his family. We had time to examine the record and consider the submission of the learned Principal State Attorney. We will discuss the complaints based on the charge together. The particulars of charge levelled against the appellant for which he was found guilty and convicted, reads as under: "PARTICU LARS O F O FFENCE WILSON S/O JANUARYKWEKA @ MKENYAA and HAMISI S/ORAMADHAN @JUMA LESO, on I f f day o fJune, 2022 a t 02:00 hours a t K aratu Tow nship w ith in K a ra tu D is tric t in Arusha Region ; did steal cash money Tshs. 565,000/=, one m ob ile phone m ake Tecno valu e d a t Tshs, 30,000/= an d one m ob ile phone m ake T sm art valu ed a t Tshs, 7 0 ,0 0 0 / = a ll total valued a t Tshs . 665,000/=(s!c) the property o f one MIRAJI S/O RAJABU and Immediately before and during such stealing, did use a piece o f moth [ s ic ' iron bar] to threaten MIRAJI S/O RAJABU in order to obtain and retain the said property1 [Emphasis supplied] The particulars contain an allegation that the appellant did steal cash money TZS. 565,000.00 and two mobile phones; Tecno valued at TZS. 30,000.00 and Tsmart valued at TZS. 70,000.00 ail total valued at 7 TZS. 665,000.00 the property of Miraji Rajabu and that immediately before and during the stealing did use a piece of iron bar to threaten him in order to obtain and retain the properties. It was alleged further that the crime was committed on 16/6/2022 at 2:00 hours at Karatu township, Karatu District in Arusha Region. We share the views of the learned Principal State Attorney that, the prosecution had a duty to prove each and every allegation of fact contained in the charge beyond reasonable doubts. We also agree that, the appellant had a right to get facts from the charge sheet which could be enough to enable him to prepare his defence. The issue now is whether there was variance between the charge and evidence and whether the charge had enough particulars to enable the appellant to know the place where the crime was committed. Having scanned through the charge sheet and the evidence on record, we agree with the learned Principal State Attorney that the description of the mobile phones given by PW4 does not tally with what is in the charge sheet. It is not clear whether the mobile phone described as tecno in the particulars of the offence is equal to tecnobattan described by PW4. In the like manner, it is not clear whether the mobile phone described as Tsmartln the particulars of the offence is equal to the mobile phone described as sm art kitochi tingen by PW4. We have the view that the witness was supposed to give evidence on what is in the charge sheet without changing or adding words because that was what was to be proved. In the like manner, there was also a need to give evidence on the value of the mobile phones in proof of what is in the charge sheet. PW4 did not say anything about the value of the mobile phones rendering the fact without proof. Speaking of the variance between the charge and evidence in William Felix Kulaya (supra), in an akin situation, the Court stated as follows: 'W e agree with the learned Senior State Attorney that the particulars o f the offence on the fourth count as was set out in the charge sheet was a t variance with the evidence on record\ It is our firm view that th e d iscre p an cie s betw een th e p a rtic u la rs o f th e offence on th e fo u rth co u n tin th e charge sh e e t and th e evidence on re co rd a re n o t triv ia l; th e y go to the ro o t o f th e case . This leaves much to be desired in the prosecution case. It is trite law that where there is variance or uncertainty in the charge sheet, th e p ro p e r rem edy is to am end th e charge u n d er se ctio n 234 (1 ) o f th e C rim in a l Procedure A c t (th e CPA). In the case a t hand, the prosecution ought to have moved the tria l court to amend 9 the charge and allow the appellant to plead to the altered charge. See T habit B a k a ri v. R epub lic, Crim inal Appeal No, 73 o f 2019 [2021] 1ZCA 259 (17June 2021) TanzUI." [Emphasis supplied] The prosecution did not seek to amend the charge in this case. Failure to amend the charge was fatal and rendered the charge unproven. See Thabit Bakari (supra) and Mashaka Bashiri v. Republic [2021] 7ZCA 25 to mention but a few. Next is the complaint that there was failure to conduct an inquiry. The record is loud that the admission of the cautioned statement of the appellant was objected as per page 16 of the record of appeal. The appellant informed the trial court that he was not given a right to read and sign the statement. That was a denial of the truth in the document. He repudiated the statement That called for the conduct of an inquiry to examine the circumstances under which the document was made. Instead of doing that, the trial magistrate remarked that alleging that he was not given a chance to read the statement and denying to sign on it did not make sense and proceeded to admit the cautioned statement into evidence. The position of the law, as correctly pointed out by the learned Principal State Attorney, is that, where admission of a cautioned 10 statement is objected, the court should stop everything and conduct an inquiry, in the case of subordinate court, or a trial within trial, in the case of the High Court, to examine the circumstances under which it was made. The court will make a ruling to admit or reject the cautioned statement at that stage. See Nyerere Nyague v. Republic, [2012] 7ZCA 103, Aneth Furaha & Others v. Director of Public Prosecutions [2019] TZCA 107 and Manyangu Mang'wena @ Mlugaluga & Another v. Republic [2015] TZCA 68 to mention a few. We agree with the learned Principal State Attorney that, a cautioned statement whose admission was objected but received without an inquiry is rendered illegal and must be expunged from the record. See our decision in Kurubone Bagirigwa & 3 Others v Republic [2016] TZCA 272. We thus proceed to expunge the cautioned statement, exhibit P2. After expunging the cautioned statement, we are left with the evidence of PW4 who was attacked during the night. The evidence shows that there was light from the nearby school but we are not told the distance, type of light and its intensity. There was also no description of the appellant. We are also not told why Paskalina, who could assist in the identification of the appellant, was not called as a witness. We thus agree li with the learned Principal State Attorney that there was no evidence to prove the offence beyond reasonable doubts. That said and done, the appeal is allowed. We vacate the decisions of the lower courts, quash the conviction and set aside the sentence imposed on the appellant. We order his immediate release from prison unless he is lawfully held on some other grounds. DATED at ARUSHA this 26thday of February, 2026. L. J. S. MWANDAMBO JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 27th day of February, 2026 in the presence of the Appellant who appeared in person and Mr. Mahfudhu Mbagwa, learned State Attorney for the respondent / Republic and Mr. Fahmi Karemwa Court clerk, is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL