Director of Public Prosecutions vs Khamis Gamaho Maranya & Others (Criminal Appeal No. 667 of 2023) [2026] TZCA 118 (25 February 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: NDIKA, J.A.. FIKIRINI. 3.A. And ISMAIL J . A . ) CRIMINAL APPEAL NO. 667 OF 2023 DIRECTOR OF PUBLIC PROSECUTIONS APPELLANT VERSUS GIRIENA BWANANA MONGU KASIMU MUSA BUYA KHAMIS MABULA NYANDA KHAMIS GAMAHO MARANYA 1 st RESPONDENT 2 nd RESPONDENT 3 rd RESPONDENT 4 th RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Musoma) 12th & 25th February, 2026 ISMAIL, J.A.: The Director of Public Prosecutions (the DPP), the appellant, is an aggrieved party. He is unhappy with the way the High Court (1s t appellate court) allowed the respondents' appeal, quashed and set aside their convictions and sentences that eventually saw them walk out as free men. The instant appeal is an effort to restore the respondents' blemished responsibility. (Komba, J.) dated 31s t day of July, 2023 in Criminal Appeal No. 17 of 2022 JUDGMENT OF THE COURT l

The prosecution account reveals that the respondents, together with a Mr. Jumanne Nyangeti @ Samsoni, who is not a party to these appeal proceedings, were charged with six assorted counts. These were: unlawful entry into the National Park; unlawful possession of weapons in the National Park; unlawful killing of wild animals; unlawful possession of Government trophy; unlawful possession of fire arms; and unlawful possession of ammunition. The incident is alleged to have occurred on 31s t December, 2017 at Warangi River area within the larger Serengeti National Park, in Serengeti District. On this date, the respondents, together with Jumanne Nyangeti @ Samsoni, entered into Serengeti National Park without permission of the Director of Wildlife, armed with a firearm namely 458 Rifle with registration No. 2404003; five rounds of ammunition; an axe; two knives and one double edged knife. It is also said that on 2n d January, 2018, at Warangi River area within Serengeti National Park, the respondents and Jumanne Nyangeti @ Samsoni killed two elephants whose value was TZS. 64,800,000.00. The prosecution's further allegation was that, on 3r d January, 2018, the respondents and their usual companion were, while at Robanda village within Serengeti District, found in an unlawful possession of Government 2

trophies, namely; four elephant tusks weighing 72.40 kg whose estimated value was TZS. 64,800,000.00. They were also found in possession of a rifle and five rounds of ammunition believed to have been unlawfully possessed. On 9th January, 2018, the quintuple was arraigned in the District Court of Serengeti at Mugumu, facing six counts in respect of which they denied any involvement. When the prosecution closed its case, the learned trial court delivered a ruling on no case to answer. Whilst it found that the prosecution had established a prima facie case against the respondents, it was not convinced that a case had been made out against Jumanne Nyingeti @ Samsoni, the 5th accused person. Accordingly, it acquitted him of all the counts. At the end of the trial proceedings, the learned trial Magistrate found the respondents guilty of the offences charged in counts 3 to 6. Upon conviction, they were sentenced to imprisonment for a term of 20 years for each court, with an order that these sentences should run synchronously. The conviction and sentence were too bitter a pill to swallow for the respondents. They swiftly moved to institute an appeal in the 1s t appellate court, raising 8 grounds of appeal. The 1s t appellate court took the view

that the testimony relied upon by the trial court to find the respondents guilty was contradictory, unreliable, incoherent and unworthy. It allowed the appeal, quashed the convictions, set aside the sentences. This injected a new lease of life into the respondents. As stated earlier on, the decision on appeal was greeted with considerable resentment by the appellant. Vide a memorandum of appeal instituted on 17th October, 2023, the appellant invited this Court to find fault in the 1s t appellate court's decision and address it. At the hearing of the appeal, the appellant was represented by Ms. Wampumbulya Shani, learned Senior State Attorney, ably assisted by Mr. Isihaka Ibrahim Mohamed and Ms. Joyce Matimbwi, learned State Attorneys. The respondents were not in attendance. Ms. Shani began by addressing us on the absence of the respondents. She submitted that service on the respondent was effected through substituted service by publication in the Habari Leo newspaper. She, therefore, urged us to invoke the provisions of rule 80 (6) of the Tanzania Court of Appeal Rules, 2009 and order that the matter be heard in the respondents' absence. We acceded. Ms. Shani then addressed us on a jurisdictional point. This revolved around the consent of the DPP (at page 11) and a certificate of the 4

conferring jurisdiction on the District Court to try economic and non economic offences (at page 12). The learned counsel contended that these instruments omitted to cite some of the charging provisions. She argued that, the missing provisions relating to unlawful possession of fire arms and rounds of ammunition. She held a conviction that this was a fatal omission whose net effect is to vitiate the trial proceedings, the resultant judgment and consequential orders. She bolstered her argument by referring us to our decision in Chacha Chiwa Murungu v. Republic [2023] TZCA 17350. Ms. Shani proposed, as a way forward, that the matter be remitted to the High Court for re-trial as she believed that the strength of the prosecution's evidence offered no possibility of filling in gaps. There were none, she insisted. As succinctly submitted by the learned counsel for the appellant, the charges preferred against the respondents were in respect of economic and non-economic offences. Commencement of these proceedings must, as a matter of law at the material time, be preceded by issuance of the consent of the DPP. Where, as was the case in the trial proceedings that bred this matter, the DPP desires that proceedings in respect of which issuance of a consent is a prerequisite be tried in a court subordinate to 5

the High Court, then he is under obligation to issue a certificate that confers jurisdiction on such court. In both instances, the imperative requirement is that the instruments i.e. consent and certificate, should cite all relevant provisions of the law involved. They include charging provisions for all the counts involved. It follows that, where any or both of the instruments issued by the DPP suffer from non-citation of the relevant provisions such instruments lack the requisite legitimacy. Such omission renders the proceedings a mere farce that can hardly see the light of the day. The importance of having the law conformed to in issuing the DPP's certificate and consent, and the adverse impact of non-conformity was accentuated by this Court in Chacha Chiwa Murungu v. Republic (supra) in which we held as followed: "Even if the said certificate and consent were made under the proper provisions o f the taw: sections 12 (4) and 26 (2) o f the EOCCA, since such consent and certificate o f transfer did not make reference to sections 17 (1) (2) and 86 (1) (2) (c) (Hi) o f the WCA which when read together with paragraph 14 o f the First Schedule to the EOCCA make them economic offences, then the said certificate and consent were incurably defective . " 6

Significantly, in Chacha Chiwa Murungu v. Republic (supra), the Court was emboldened by its earlier decision in Omari Bakari @ Daudi v. Republic, Criminal Appeal No. 52 of 2022 (unreported) the latter of which cited the reasoning in Ramadhani Omari Mtiula v. Republic, Criminal Appeal No. 62 of 2019 (unreported). In the latter, it was held as follows: " Thus, without the DPP's consent and certificate, conferring the respective jurisdiction, the District Court o f Serengeti embarked on a nullity to try Criminal Case No. 8 o f 1995. On that account, since the first appeal stemmed from null proceedings this adversely impacted on the appeal before the High Court." Following in the footsteps of our reasoning in the cited decision is the Court's subsequent decision in Shadrack Chacha @ Mwita v. Republic [2025] TZCA 1073. In this case, the infraction manifested itself, yet again, in the failure to cite specific provisions of the law that create the economic offences for which the appellant was held culpable. Abhorring the violation, the Court guided as follows: "It is also a trite position o f the law that, the consent for the prosecution o f an economic offence and the certificate conferring jurisdiction i

on the subordinate court to try such an offence, should cite the specific provision o f the taw creating the economic offence charged. Settled, is also the position that, failure to cite such a provision o f the law creating an economic offence charged in the consent and certificate, renders the consent and the certificate invalid and vitiates the trial court's proceedings. See - Rhobi Marwa Mgare & 2 Others v. Republic [2009] TZCA 221; DiHpkumar Maganbai Patel v. Republic [2019] TZCA 477 and Peter Kongori Ma/iwa & Others (supra)." See also: Kuncha Mbwita Kimase v. Republic [2025] TZCA 1039. We are unhesitatingly in agreement with Ms. Shani that the proceedings bred out of this patent violation of the law are roundly defective and the fate they must suffer is to nullify them as we hereby do. We also quash and set aside the decisions and orders that followed the annulled proceedings. Having done that, the question that follows is: Whither the fate of the charges preferred against the respondents? Ms. Shani has been quick to beseech us to order a re-trial. It is settled law that re-trial would not be ordered if, in so doing, the prosecution is handed a lifeline which enables it to resuscitate a collapsing case by panel-beating a dented 8

testimony. See, for instance, Fatehali Manji v. Republic [1966] E.A. 343; Masana Mwita Marwa v. Republic [2014] TZCA 2289; and Chacha Mwita Gikaro v. Republic [2026] TZCA 65. We do not see that possibility in the instant matter. In consequence, we remit the matter to the High Court for re-trial. We direct that the said re-trial should be held without any undue delay, noting that this is an old case. While awaiting commencement of the re trial, the respondents should be held in custody. DATED at MUSOMA this 24th 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 25th day of February, 2026 in the presence of Jonas Kivuyo, learned State Attorney for the appellant and 1s t, 2n d , 3r d and 4th respondents absent and Mr. Shabani Kanyai, Court Clerk; is hereby certified as a true copy of the original.