Deshi Charles Kanyanza vs Republic (Criminal Appeal No. 663 of 2024) [2026] TZCA 139 (26 February 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA fCORAM: GALEBA. J.A.. MASOUD. 3.A. And FELESHI, J J U CRIMINAL APPEAL NO. 663 OF 2024 DESHI CHARLES KANYANZA ................................................ APPELLANT VERSUS THE REPUBLIC.............................................................. RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Dodoma) (Mambi, J.) dated the 15th day of December, 2023 in DC Criminal Appeal No. 10 of 2023 JUDGMENT OF THE COURT 9th & 26th February, 2026 GALEBA. J.A.: The appellant in this appeal, Deshi Charles Kanyanza, was charged with two counts: unlawful possession of, and unlawful dealing in, Government trophies, namely two elephant tusks, contrary to the provisions of the Wildlife Conservation Act (the WCA) and the Economic and Organised Crime Control Act (the EOCCA). He was arraigned before the Resident Magistrate's Court at Singida (the trial court) in Economic Crimes Case No. 1 of 2022. The trial court found him guilty on both counts and sentenced him to twenty years' imprisonment on the first l count and two years' imprisonment on the second. His appeal to the High Court of Tanzania at Dodoma (the first appellate court) was dismissed/ hence the present appeal. According to the prosecution, acting on information received from an undisclosed informant, Assistant Inspector Simon Mathias (PW5) posed as a businessman from Kenya who was interested in purchasing elephant tusks. Together with other police officers/ including Assistant Superintendent of Police Ramadhani Isack Ngoloma (PW1), PW5 successfully met the appellant at Nyanza area. The appellant informed them that the subject of the transaction was located at German Village, Ighombwe Ward, within Ikungi District, and they proceeded there in order to conclude the deal. While on the way, they contacted Said Juma Mwingira (PW4), the Village Executive Officer (VEO) of German Village. According to the prosecution, the appellant led the police officers to German Village, where they arrived at about 22:00 hours on 23r d December, 2021. He then led them directly to the house of Stephano Zabu, where two pieces of elephant tusks were found wrapped in a sulphate bag and placed in a plastic container in the sitting room. The two pieces of ivory were marked as exhibits GR1 and GR2 and, together with the appellant, were taken to Singida Police Station, where they 2 arrived at about 04:30 hours on 24th December, 2021. At about 05:00 hours on the same day, the appellant was interrogated and admitted committing the offences. However, he later pleaded not guilty to the charge. Despite the appellant's denial of any involvement in the matter, the trial court, on the basis of the prosecution evidence, found him guilty on both counts. As earlier stated, his appeal to the first appellate court was unsuccessful. Originally, this appeal was based on a set of two memoranda of appeal, with a total of 18 grounds of appeal. The original memorandum of appeal had 14 grounds, whereas the additional grounds were 4. At the hearing, the appellant appeared in person without legal representation, whereas the respondent Republic had the services of Ms. Mercy Ngowi, learned Senior State Attorney, teaming up with Messrs Frank Chonja and Nehemiah Kilimuhana, both learned State Attorneys. Before the hearing could proceed, Ms. Ngowi took us through both memoranda of appeal and highlighted several grounds raising factual complaints that had not been addressed by the first appellate court. According to the learned Senior State Attorney, the grounds irrelevant 3 to the present appeal were grounds 8, 9, 12, 13, and 14 in the memorandum of appeal, as well as grounds 1,2, and 3 in the "additional grounds of appeal" document. When this issue was put to the appellant in order to solicit his response, he did not raise any useful point; instead, he stated that he was arrested while selling honey, a business for which he held a valid trade licence. We agree with the learned Senior State Attorney that the grounds referred to above raise new factual complaints which were not considered by the first appellate court. This Court has consistently held that a matter which was neither raised nor determined by the court from which the appeal originates cannot properly form part of an appeal before this Court, as it lacks jurisdiction to entertain such a matter. This position has been settled in numerous decisions, including Bakari Abdallah Masudi v. R, Criminal Appeal No. 126 of 2017, and George Claud Kasanda v. DPP, Criminal Appeal No. 376 of 2017 (both unreported). In the circumstances, we decline to entertain grounds 8, 9, 12, 13, and 14 of the memorandum of appeal, as well as additional grounds 1, 2, and 3. The remaining nine grounds of appeal, upon which this appeal was legally based, may be paraphrased as follows: 1. That the case against the appellant was not proved beyond reasonable doubts. 2. That the search that recovered the trophy was Illegal because the prosecution failed to tender a search warrant. 3. That during the trial o f the appellant, the provisions o f sections 192 (3) and sections 10 (3) and 9 (3) both o f the CPA o f the CPA were no complied with. 4. That the cautioned statement was not supposed to be relied upon because sections 50, 51, 53, 54 and 57 (2) (a) and (b)of the CPA were not complied with. 5. That the appellant was wrongly convicted because the principles o f chain o f custody were not strictly observed. 6. That the appellants conviction based on the extra judicial statement was unlawful because it offended the ChiefJustice's Guidelines which require: (i) The statement to be written on a full scale papen (sic), which is missing. (ii) Recording of the name o f the messenger. (Hi) To have a statement that it was in a sealed envelope. 7. That the appellants trial did comply with the provisions o f sections 10 (3) and 9 (3) both o f the CPA. 8. That the appellant's trial was conducted with the consent and certificate o f the DPP being improperly accepted in court. 5 9. That, the appellant's trial was Illegal because he was arrested when selling honey for which he had licence and not, in unlawful possession o f the government trophies. However, before we could proceed to consider the substantive complaints raised in the above grounds of appeal, we found it necessary to draw the attention of the parties to an anomaly we had observed in the course of preparing for the hearing. The issue was that, although the charge comprised of two offences—namely, unlawful possession of Government trophy and unlawful dealing in the same trophy, the consent and the certificate conferring jurisdiction upon the subordinate court to try an economic offence, did not contain any provision relating to unlawful dealing in Government trophies. In other words, it appeared to us that the consent and the certificate related only to the first count in the charge sheet, namely unlawful possession of a Government trophy, and not to unlawful dealing in such trophies. This was the issue we put to the parties for their response. In response, Ms. Ngowi was quick to affirm our concerns. She submitted that the absence of any reference to the offence of unlawful dealing in Government trophies, or to the statutory provision creating that offence, in the consent and the certificate was a clear indication 6 that the trial court lacked jurisdiction to try the appellant in respect of that offence. On that basis, the learned Senior State Attorney urged the Court to nullify the proceedings, the conviction, and the sentence of two years' imprisonment imposed upon the appellant following his conviction on the second count of unlawful dealing in Government trophy. We shall determine this issue first. Indeed, it is beyond doubt that the consent and the certificate appearing at pages 6 and 7 of the record of appeal, respectively, do not state that the consent granted or the certificate issued related to any contravention of sections 80(1) or 84(1) of the WCA, which form the basis of the second count in the charge sheet. What is clear from the consent is that the Prosecuting Attorney in charge of Singida Region granted consent to try the appellant for: "having contravened section 86 (1) (2) (c) (iii) and (3) (b) and 111 (1) (a) o f the Wildlife Conservation Act [Cap 283 RE 2022] read together with paragraph 14 o f the First Schedule to and sections 57 (1) and 60 (2) o f the Economic and Organised Crime ControlAct, [Cap 200 RE2022]..." Similarly, the certificate states: 7 " ... ORDER that DESHI S/0 CHARLES KANYANZA ....charged for contravening the provisions o f sections 86 (1) (2) (c) (Hi) and (3) (b) and 111 (1) (a) o f the Wiidiife Conservation Act [Cap 283 RE 2022] read together with paragraph 14 o f the First Schedule to and sections 57 (1) and 60 (2) o f the Economic and Organised Crime Control Act, [Cap 200 RE 2022] which are triable by the Corruption and Economic Crimes Division of the High Court, BE TRIED by the Resident Magistrates Court o f Singida Region at Singida." In other words, the above documents were specific as to the contravention of the law which the subordinate court was authorized to try. They related to unlawful possession of a Government trophy, and not to unlawful dealing in such trophies. We therefore agree with Ms. Ngowi that there was neither consent nor a certificate authorizing the trial of the appellant for the offence of unlawful dealing before the subordinate court. We are also in agreement with her as to the appropriate course to take. Accordingly, we nullify the proceedings, the conviction, and the sentence imposed upon the appellant in respect of the offence of unlawful dealing in Government trophy, as the offence was tried by a court lacking jurisdiction. 8 This allows us to get back to the determination of the nine grounds of appeal paraphrased above. In responding to the grounds of appeal, in accordance with the modality proposed by the appellant, Ms. Ngowi began with the second ground of appeal, which complained that the appellant's conviction was illegal on the basis that a search warrant had not been tendered in evidence. In response to that complaint, Ms. Ngowi submitted that section 106(1)(b) of the WCA does not require production of a search warrant at the trial as a mandatory requirement in wildlife cases. In support of her submission, she relied on the decision in Peter Kabi v. R, Criminal Appeal No. 5 of 2020 (unreported). In this ground and in all others, the appellant told the Court that his only reply is that he was arrested selling honey and does not recognize his implication in the case involving elephant tusks. First, it is true that no search warrant was tendered at the trial, but also section 106 (1) (b) of the WCA provides as follows: "106- (1) Without prejudice to any other law, where any authorized officer has reasonable grounds to believe that a person has committed 9 or is about to commit an offence under this Act, he may: (a) N/A (b) enter and search without warrant any land, buiiding, tent, vehicle, aircraft or vessel in the occupation or use o f such person, open and search any baggage or other thing in his possession: Provided that, a dwelling house shall not be entered into without a warrant except in the presence o f at least one independent witness;" This therefore being a wildlife case, a search warrant was unnecessary and failure to tender it cannot affect the merit of the search. This was also the approach in Peter Kabi (supra), although the section referred to in that case was section 106 (1) (c) of the WCA. That said, we find the second ground of appeal without merit, and therefore dismiss it. Now the third ground of appeal. In that ground the complaint was that there was no Preliminary Hearing (PH) conducted as per section 192 (3) and of the Criminal Procedure Act (now section 198 (3) of the 2023 revised edition of the laws) and that he was not supplied with the 10 statement of the complainant in compliance with sections 9 (3) and 10 (3) both of the CPA (now section 10 (3) and 11 (3) both of the CPA revised edition of 2023). As for PH, Ms. Ngowi referred us to page 24 of the record of appeal where she demonstrated that the procedure was conducted. Section 193 (3) of the CPA, which is complained of not having been complied with provides as follows: "(3) At the conclusion of a preliminary hearing held under this sectionthe court shall prepare a memorandum o f the matters agreed and the memorandum shall be read over and explained to the accused in a language that he understands, signed by the accused and his advocate (if any) and by the public prosecutor, and then filed!' We have perused the record and noted that indeed, the procedure was duly conducted at page 24 of the record of appeal, and the appellant duly signed on matters that he did not dispute. So, the first limb of this ground of appeal complaining about noncompliance with section 192 (3) of the CPA, has no basis, we dismiss it. The second limb, which was argued together with ground seven of this appeal, complained that the appellant was not supplied with the li complainant's statements, as required under sections 9(3) and 10(3) of the CPA, In reply, Ms. Ngowi did not contend that the respondent had complied with that requirement; rather, she submitted that the omission was not fatal, since the appellant was fully aware of the offence, having personally led the police to the place where the trophies were recovered. She further submitted that the failure to supply the statements did not occasion any prejudice to the appellant. She concluded that, throughout the proceedings, the appellant was accorded a fair trial. In support of her position, the learned Senior State Attorney relied on this Court's decision in Seif Nyangasi v. R, Criminal Appeal No. 660 of 2024 (unreported), and urged us to dismiss that limb, as well as ground seven of the appeal, which raised a similar complaint. In the case of Seif Nyangasi (supra), after considering our previous decision on the same matter in the case of Rashid Juma Kimolo v. R, Criminal Appeal No. 784 of 2023 (unreported), we stated: "Indeed, the accused’ s right to be furnished with the information or statement o f the compiainant in terms o f section 10 (3) o f the CPA R.E 2023 is a requirement o f fair triai. Nonetheless, failure to compiy with that provision is not fatal unless it is 12 demonstrated that, that failure occasioned injustice to the appellant" Like it was stated above, in this case there is no indication that the appellant suffered any injustice following failure by the prosecution to supply the statements required. Thus, we dismiss the third and seventh grounds of appeal for want of merit. The complaint in the fourth ground of appeal is that the cautioned statement was not recorded in accordance with the procedure, thereby contravening sections 50, 51, 53, 54, and 57 (2) (a) and (b) of the CPA. In response, Ms. Ngowi submitted that, according to the evidence of the arresting officer, PW1, at page 29 of the record of appeal, the appellant was arrested in the night of 23r d December, 2021 at approximately 23:00 hours and was transported to the police station, where they arrived at 04:30 hours in the morning of 24th December, 2021. At 05:00 hours, the cautioned statement was recorded, within half an hour of his arrival at the station. Her submission was that the interrogation was conducted within four hours, as required by section 50(1) of the CPA, and therefore there was no need for an extension of time to record the statement under section 51 of the CPA. 13 Regarding sections 53 and 54, Ms. Ngowi submitted that the appellant was not denied any right during the interrogation process. She noted that WP 9195 CPL Anna Magwe (PW8) properly identified herself to the appellant, ensuring compliance with the relevant provisions. With respect to section 57, she stated that the cautioned statement was recorded under section 58 of the CPA, not 57. Her overall point was that the respondent did not contravene any of the sections of the CPA as was alleged by the appellant. We have carefully examined the evidence of PW1, one of the arresting officers, and noted that the appellant was arrested in the night of 23r t J December 2021 and arrived at Singida Police Station the following day at 04:30 hours. According to the cautioned statement at page 67 of the record of appeal, recording of the statement commenced at 05:00 hours on 24th December 2021. This indicates that section 50(1) of the CPA was not contravened, as the statement was recorded within four hours of the appellant's arrival at the police station. Regarding the other provisions complained of, exhibit PW8A, the cautioned statement, shows that the appellant was informed of his right to be interrogated either alone or in the presence of a relative or lawyer, 14 and he chose to be interrogated alone (see page 67 of the record of appeal). There is, therefore, no evidence that sections 53 or 54 of the CPA were breached. As for the complaint of breaching section 57 of the CPA, PW8 who recorded the cautioned statement stated at page 69 of the record of appeal that she recorded it under section 58 (4) to (6) of the CPA, in which case noncompliance with section 57 of the CPA does not arise. Thus, we agree with Ms. Ngowi that the complaints of the appellant in the fourth ground of appeal are all without merit, we therefore dismiss that ground of appeal. Next, Ms. Ngowi addressed us on ground five, which essentially complained that there was no clear chain of custody of the trophies from the scene of the crime to their tendering in court. In response, she contended that, upon recovery at German Village, one tusk was marked GR1 and the other GR2, and both were taken, along with the appellant, to Singida Police Station. There, they were handed over to the exhibits' keeper, one SGT Mashaka, who entered them in the register as No. 120/2021. She further stated that PW1 subsequently collected the exhibits from the exhibits' keeper for presentation in court. 15 Notable here is that the exhibits keeper was not called as witness, but the movement of the trophies is clear from recovery and labelling at German Village as GR1 and GR2, transporting them to Singida and giving them to one SGT Mashaka, who in turn gave them to PW1 who presented them in court on 8th November, 2022. The tusks which were marked GR1 and GR2 were tendered in Court without objection from the appellant at page 32 of the record of appeal. In our view, there is no credible suspicion of tampering with the ivory, as the marks inscribed on the exhibits at the time of their seizure at the scene of the crime remained visible when they were tendered in court. The exhibits were also tendered by the same person who had seized them at the scene. Given that the elephant tusks are not items that frequently change hands, we are satisfied that the chain of custody of the exhibits was sufficiently established. We therefore find that the fifth ground of appeal has no merit and dismiss it. Ground six was a complaint that exhibit PW7A, which was the extra judicial statement and which was tendered by Ferdinand Michael Njau, PW7 did not comply with the Chief Justice Guidelines on recording of such statements. In reply to that ground of appeal, Ms. Ngowi submitted 16 that, the complaint had no basis because the practical procedure to record extrajudicial statements was elaborated in the case of Sospeter Nyanza v. R, Criminal Appeal No. 289 of 2018 (unreported). According to the learned Senior State Attorney, the exhibit was properly recorded in terms of that practical guide. On this complaint, in the case of Sospeter Nyanza (supra), placing reliance on Mpemba Mashenene v. R, Criminal Appeal No. 557 of 2015 (unreported), we stated as follows on the procedure to record an extra judicial statement by a justice of peace: "The Justice Peace ought to observe , inter aiia, the following: (i) The time and date o f his arrest; (ii) The place he was arrested; (iv) The place he slept before the date he was brought to him; (v) Whether any person by threat or promise or violence he persuaded him to give the statement; (vi) Whether he really wishes to make the statement on his own free will; (vii) That if he makes a statement ,, the same may be used as evidence against him. 17 [See also: Japhet Thadei Msigwa v. R, Criminal Appeal No. 367o f2008 (unreported)." In our view, the above are the basic procedures and guidelines to be observed by the justice of peace when recording an extra judicial statement of a confessing suspect. We will then turn to consider whether exhibit PW7A met the above criteria. The exhibit is found at page 65 to 66 of the record of appeal. On when and where he was arrested, he stated that it was on 23r d December, 2021 around 15:00 hours at Kindai. As to where he spent a night before going to the justice of peace, he stated that it was Singida Police station. He stated that he was not induced or threatened to give the statement. The appellant affirmed that he wanted to give the statement voluntarily, which statement could be used in the proceedings which might be instituted against him. In our view therefore, the basic procedures to record an extra judicial statement were properly complied with. Accordingly, we find no substance in the complaint of the appellant in the sixth ground of appeal which we hereby dismiss for want of merit. The next ground is the eighth ground of appeal which is a complaint that the appellant's trial was conducted with the consent and certificate of the DPP which were not properly accepted in court. Ms. 18 Ngowi objected to this ground of appeal. She submitted that at page 19 of the record of appeal, the State Attorney informed the court that they have filed a consent and certificate and the court granted the prayer. Therefore, the complaint of appellant according to her, was unfounded. She moved the Court to dismiss that ground of appeal. We have revisited the record in order to satisfy ourselves on the point raised by the appellant. Indeed, we agree with Ms. Ngowi that at page 19 of the record of appeal, after the submission by the State Attorney that they had filed the consent and the certificate vesting jurisdiction to the subordinate court and prayed for them to be adopted, the trial court entered the following order at that same page: "Prayer granted, consent and certificate and charge sheet are hereby admitted and form part o f this proceeding." In view of that order of the court, the complaint of the appellant in the eighth ground of appeal has no merit, we therefore dismiss it. The complaint in the nineth ground of appeal is that, the appellant's defence was not considered. In reply to that complaint Ms. Ngowi referred us to page 75 of the record of appeal, where according to her, that court considered the appellant's defence but did not believe 1 9 it. She therefore submitted that the appellant's complaint is without merit. At page 75 of the record of appeal, this is what the trial court stated in trying to underscore the defence of the appellant; "...His defence that he is selling honey does not make any sense. Because one can do more than one business in life , so selling honey doesn't mean you cannot sell maize , beans and other illegal business like this one. So, I have considered his defence but it doesn't raise any doubt in the prosecution evidence." In view of the above, we do not agree with the appellant that his defence was not considered. The same was considered and was found to have no merit. Thus, the nineth ground of appeal is hereby dismissed for want of merit. As all the grounds of appeal from the second to the nineth have been dismissed for want of merit, we agree with Ms. Ngowi, that the first ground of appeal must also fail, because the case was proved beyond reasonable doubt against the appellant in respect of the first count of unlawful possession of Government trophy. 20 In conclusion, save for what we have decided concerning the second count, in respect of which we quashed the conviction and set aside the sentence of two years, this appeal is hereby dismissed for want of merit. DATED at DODOMA, the 24th day of February, 2026. Z. N. GALEBA JUSTICE OF APPEAL B. M. MASOUD JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL The Judgment delivered virtually, this 26th day of February, 2026 in the presence of appellant in person and unrepresented, Mr. Nehemia Kilimuhana, learned State Attorney for the Respondent/Republic and Mr. Oscar Msaki, Court Clerk, is hereby certified as a true copy of the original. _ ___ ^