Deus Benjamini Edward vs Republic (Criminal Appeal No. 247 of 2024) [2026] TZCA 122 (25 February 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: LEVIRA, J.A.. MDEMU, 3.A. And ISSA, J.A.^ CRIMINAL APPEAL NO. 247 OF 2024 DEUS BENJAMINI EDW ARD.............................................................APPELLANT VERSUS THE REPUBLIC.............................................................................. RESPONDENT (Appeal from decision of the Resident Magistrate Court of Mwanza at Mwanza) (Ndvekobora, PRM-Ext. Juris.l dated the 22n d day of November, 2023 in RM. Criminal Appeal No. 24 of 2023 JUDGMENT OF THE COURT 9th & 25th February, 2026 LEVIRA, J.A.: The appellant was arraigned before the District Court of Nyamagana District at Mwanza facing a charge of illicit trafficking of narcotic drugs contrary to section 15A (1) and (2) of the Drugs Control and Enforcement Act, No. 5 of 2015 as amended by Act No. 5 of 2017 (the DCEA). After a full trial, he was convicted and sentenced to 30 years imprisonment. Aggrieved, he unsuccessfully appealed to the High Court of Tanzania at Mwanza. i It was alleged by the prosecution that on 18th May, 2020 at Igoma area within Nyamagana District in the City and Region of Mwanza, the appellant was found in unlawful possession of 2 kgs and 910 grams of narcotic drugs commonly known as khat. He pleaded not guilty to the charge and thus a total number of seven witnesses were called by the prosecution and ten exhibits were tendered to prove the case against him. The evidence on record reveals that the appellant was arrested by Detective Copl Joram (PW1) following the information he received from an informer that, the appellant was hiding narcotic drugs on his thighs and was traveling by Kisire bus from Mara to Mwanza. PW1 and his fellows including Detective Copl Majaliwa (PW2) went to Igoma bus stand and found Kisire bus leaving. The informer was with PW1 and he showed him the appellant who was about to board minibus. He arrested him and seized from him six bundles of narcotic drugs which were proved to be so by Mr. Lwige Obunya (PW7), an officer from the Chief Government Chemist upon examination of a substance which was found in appellant possession on the material day. PW1 filled a certificate of seizure which he signed together with an independent witness, one Joseph Marwa (PW3). The appellant and the seized exhibits were sent to Nyakato Police Station where he was put in custody. On 18th May, 2020, Detective Copl Hija (PW4) interrogated the appellant and recorded his cautioned statement (exhibit P 5). According to PW4, the appellant admitted to have been found in possession of six bundles of khat. On 21s t May, 2020, Detective Copl Ikren (PW5) went with the appellant to Nyamagana Urban Primary Court and took two pictures of the appellant holding khat which were seized from him (exhibit P 9) in presence of Doroth Butambala (PW6), a Primary Court Magistrate. Those pictures were admitted as exhibits during trial. Eventually, the khat seized from the appellant were destroyed by the order of PW6. Upon closure of prosecution case, the appellant was given an opportunity to defend himself. In essence, the appellant denied the charge he was facing claiming that, the same was fabricated. Nonetheless, he did not state who fabricated it and why. Having evaluated the whole evidence on record, the trial court found the appellant guilty. Accordingly, he was convicted and sentenced to 30 years imprisonment as stated earlier on. Dissatisfied, the appellant appealed to the High Court where his appeal was transferred to a Resident Magistrate 3 with extended jurisdiction of the Resident Magistrate Court of Mwanza at Mwanza. His appeal was dismissed; hence, the present appeal. At the hearing of the appeal, the appellant appeared in person, unpresented whereas the respondent Republic had the services of Mr. Nestory Mwenda, learned Senior State Attorney assisted by Mr. Ibrahim Idd Salim, learned State Attorney. The appellant adopted all fifteen (15) grounds of appeal contained in the memorandum of appeal of 8th May, 2024, the supplementary memorandum of appeal of 24th October, 2024 and another supplementary memorandum of appeal of 9th February, 2026 as part of his oral submission before the Court. He, as well, reserved his right to rejoinder after hearing from the learned Senior State Attorney. Upon taking the floor to reply to the grounds of appeal, Mr. Mwenda clustered the grounds of appeal into two main groups; to wit, those falling on procedural matters and substantive legal issue. As far as procedural grounds of appeal are concerned, the main complaint was that the trial court erred in law by allowing PW1 to affirm before testifying without inquiring her religion. The learned Senior State Attorney opposed this ground on account that it did not affect the weight of her evidence because affirmation is a commitment to speak the truth in terms of sections 212 of the CPA and 4 of the Oaths and Statutory Declaration Act, Cap 34. Therefore, by affirming PW1 complied with the law. As such, he argued, there is no law requiring a witness to state his/her religion before affirming. He referred us to the case of Hamed v. Mwanasheria Mkuu and Others [1996] TZCA 85 (30 December 1996), where the Court held that, although PW1 affirmed without mentioning his religion, he met the commitment of telling the truth. Therefore, he urged us to find the appellant's complaint in this regard, baseless and dismiss it. The issue as to whether or not PW1 contravened the law by failure to state her religion before affirming, need not detain us much. We observe from the record of appeal and agree with the parties that, it is true that PW1 did not state her religion before affirming. We equally agree with the counsel for the respondent that, failure to do so is not a fatal irregularity. What matters is that she affirmed as required by the law under section 212 (1) of the CPA and section 4 of the Oaths Act. For easy reference, the former section provides: "A witness in a criminal cause or matter shallI subject to the provisions o f any other written law to the contrary, be examined upon oath or affirmation in accordance with the provisions o f the Oaths and Statutory Declaration A c t " Section 4 (a) of the Oaths and Statutory Declaration Act, provides that: "4. Subject to any provision to the contrary contained in any written law, an oath shall be made by - (a) Any person who may lawfully be examined upon oath or give or be required to give evidence upon oath by or before a court." As it can be observed from the provisions above, the lawrequiresa witness to be examined upon oath or affirmation. In the present case,PWl's evidence was recorded upon affirmation as per the requirement of the law. We therefore find the argument by the appellant is without legal basis and dismiss it. Another complaint on substance by the appellant was that, the case against him was not proved beyond reasonable doubt. Responding to this complaint, Mr. Mwenda submitted that the prosecution side proved its case against the appellant to the required standard. According to him, all seven prosecution witnesses and the exhibits admitted without objection during trial proved that, the appellant was found in unlawful possession of khat as charged. He mentioned some of the admitted exhibits to be the certificate of seizure (exhibit PI), the appellants cautioned statement (exhibit P5) and the report from the Chief Government Chemist (exhibit P10) which indicated clearly that, the substance seized from the appellant was khat containing "Cathinone and Cathine." In the circumstances, he insisted that the prosecution proved its case beyond reasonable doubt and thus the lower court was right to convict and sentence him, save for twenty years imprisonment sentence introduced by the first appellate court in its judgment without justification. He thus urged us not to allow the appeal. The appellant had no rejoinder to make as far as the proof of the case by prosecution is concerned. He only faulted the sentence for being improper. This will be our last ground for consideration after determining as to whether or not the prosecution proved its case beyond reasonable doubt. It is settled law that, the burden of proof in criminal cases lies on the prosecution. An accused person is not tasked to prove his/her innocence. The appellant was charged with illicit trafficking of narcotic drugs known as khat. In terms of section 2 of the DCEA trafficking of narcotic drugs, as an offence includes possession. It reads: 'Trafficking means the importation , exportation, buying , sale, giving, supplying, storing, possession, production, manufacturing, conveyance, delivery or distribution by any person o f narcotic drug or psychotropic substance, precursor chemicals, substances with drug related effects and substances used in the process o f manufacturing drugs any substance represented or held out by that person to be a narcotic drug or psychotropic substance or making o f any o f f e r [Emphasis added]. According to the evidence on record, the information that the appellant possessed narcotic drugs on his body was passed to PW1 through the informer. He participated in arresting the appellant while he was at Igoma bus stand. PW1 searched the appellant and seized from him six bundles of substance suspected to be narcotic drugs. He filled in a certificate of seizure which was signed by him, the appellant and an independent witness (exhibit PI). The substance which was found in appellant's possession was examined by PW7 and confirmed to be khat carrying the weight stated in the charge. Certainly, it is without doubt that the offence with which the appellant was charged was proved to the required standard. We note that although the appellant raised it as one of the grounds that the case against him was not proved beyond reasonable doubt, he had no qualms regarding his conviction save for the sentence. Therefore, we find no reason to fault the concurrent findings of the lower courts regarding proof of the instant case. We, as well, make a similar finding that the case against the appellant was proved beyond reasonable doubt. We now revert to consider the appellant's complaint regarding the sentence imposed on him. He faulted the first appellate court for upholding the twenty (20) years imprisonment sentence while the sentence imposed by the trial court, purportedly upheld, was of thirty (30) years imprisonment. The appellant complained that, it is not certain which sentence he is currently serving. He urged us to set him free. Mr. Mwenda supported the appellant's complaint regarding the sentence. He submitted that having gone through the record of appeal particularly on page 107, he observed that the Principal Resident Magistrate with Extended Jurisdiction wrongly upheld the appellant's sentence of twenty (20) years imprisonment, instead of thirty (30) years imposed by the trial court. It was his argument that, if the said Magistrate intended to reduce the 9 sentence because by then the law gave discretion to the court under section 15A (1) and (2) of the DCEA, she ought to have given reasons for such reduction, but that is not the case herein. However, upon further reflection, the learned Senior State Attorney submitted that, the first appellate court Magistrate did not reduce the sentence but it was a typing error. He urged the Court to remit the case file back to the lower court to rectify that anomaly. We have carefully considered submissions by both parties regarding the appellant's sentence. The question as to whether the first appellate court was right to uphold a sentence of 20 years which was none existent need not consume much of our time. On page 85 of the record of appeal, the trial Magistrate while imposing the appellant's sentence had the following to say: "SENTENCE DEUS s/o BENJAMINI EDWARD @ DONY is hereby sentenced to serve 30 years in ja il imprisonment (sic) following your conviction on the offence o f Illicit Trafficking o f Narcotic Drugs contrary to section 15A (1) and (2) (c) o f the Drugs Control and Enforcement Act No. 5 o f 2015 as amended by Act No. 15 o f 2017.” 10 While upholding conviction and sentence, the first appellate Magistrate stated on page 107 of the record of appeal as follows: "Having so held, therefore, the grounds o f appeal by the appellant have no merit at all; therefore, the appellants conviction is sustained, and the sentence o f twenty years ordered is hereby upheld. The appeal is hereby dismissed accordingly. It is so ordered." [Emphasis added]. The excerpts above clearly show the difference between the sentence meted out by the trial court and the one purportedly upheld by the first appellate court. However, reading between the lines, it is not difficult to realize that the learned first appellate Magistrate inadvertently indicated that she upheld the sentence of twenty (20) years. We say so because prior to making such sentence, she made a finding that the grounds raised by the appellant on appeal had no merit at all. In the circumstances, prudence directs that she had no reason to alter the sentence imposed by the trial court. We observed further that, if the intention was to do so, she ought to have advanced reasons for such alteration as required by law. Therefore, we decline the first invitation by Mr. Mwenda as we find that justice demands us to consider that the sentence which was upheld by the first appellate court was thirty (30) years imposed by the trial court and ignore the twenty (20) years imprisonment. Nonetheless, we have observed from page 84 to 85 of the record of appeal that the trial court having convicted the appellant, it was informed that the appellant had no previous criminal record. Meaning that, he was a first offender. In mitigation he prayed for leniency of the court in sentencing him. Both the aggregating and mitigating factors were not considered by the trial court because it imposed a maximum sentence on the appellant. As correctly submitted by the counsel for the respondent, the law by then provided for discretion in imposing sentence. It provided that a person who traffics in narcotic drug commits an offence and on conviction shall be liable to serve a sentence of 30 years in prison. As the word used in the provision imposing punishment was: "shallbe liabld', it means the court had discretion in sentencing. Nonetheless, it is not clear and the record of appeal is silent as to why the appellant, being the first offender was given a maximum sentence. On our thorough evaluation of the record of appeal, we are of the considered opinion that the appellant deserved a lenient sentence. 12 In exercise of our revisional powers under section 6 (2) of the Appellate Jurisdiction Act, Cap 141 and having considered the entire record of appeal, we vary the appellant's thirty (30 year) imprisonment sentence and reduce it to five (5) years imprisonment. This sentence shall lead to his immediate release from prison since he has already served such a term in jail, unless he is lawfully held for another cause. DATED at MWANZA this 24th day of February, 2026. M. C. LEVIRA JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 25th day of February, 2026 in the presence of the Appellant in person, Mr. Morice Mtoi, learned Senior State Attorney, Ms. Brenda Mayalla, learned State Attorney for the Respondent/Republic and Ms. Gloria Masige, Court Clerk; is hereby certified as a true copy of the original.