Joseph Simiti @ Marwa & Another vs Republic (Criminal Appeal No. 684 of 2024) [2026] TZCA 127 (25 February 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA ( CORAM: NDIKA, J.A., FIKIRINI. J.A. And ISMAIL J.A.^ CRIMINAL APPEAL NO. 684 OF 2024 JOSEPH SIMITI@MARWA 1st APPELLANT PETRO NYAMHANGA @ CHIBONDE 2n d APPELLANT VERSUS THE REPUBLIC RESPONDENT (Appeal from the Judgment of the High Court of Tanzania, at Musoma) 17th & 25th February, 2026 FIKIRINI, J.A.: Joseph Simiti @ Marwa and Petro Nyamhanga @ Chibonde, hereinafter referred as the 1st and 2n d appellants, found themselves in trouble after they were caught roaming around within the national park. Worsening their presence in the said area is that they were allegedly found in unlawful possession of weapons and government trophies. They were charged on three counts contrary to section 21 (1) (a) (2) and 29 (1) of the National Park Act, Cap. 282 R.E. 2023 (the National Park Act), on the first count of unlawful presence within the national park, (MahimbaiLJ) Dated 14th day of July, 2023 in Criminal Appeal No. 7 of 2023 JUDGMENT OF THE COURT l

section 24 (1) (b) and (2) of the National Park Act and section 86 (1) and (2) (b) of the Wildlife Conservation Act, No. Cap 283 R.E, 2023 (the Wildlife Act) 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. 2023. They declined the charges. After hearing from the four prosecution witnesses and admission of three (3) exhibits namely, seizure certificate (Exhibit PI), Trophy Valuation Certificate (Exhibit P3) and inventory of claimed property (Exhibit P3), the trial court, convicted the appellants of the offences of unlawful possession of weapons and government trophies, those being the second and third counts respectively and acquitted them on the first count. Briefly, the prosecution case is to the effect that on 4th April, 2022, the appellants were arrested in the national park in possession of weapons, including one panga, two animal trapping wires, one spear, and in unlawful possession of government trophies, to wit: one head and four feet of a lion. Both disputed the charges placed at their door step, claiming that they were arrested while at their homes. The trial court, convinced by the prosecution witnesses and exhibits tendered, convicted and sentenced the appellants to two (2) years and twenty (20) respectively for the second and third counts. 2

In their petition of appeal to the High Court, containing four (4) grounds, the appellants denied being arrested in the national park and that no exhibit was tendered in court during the trial, nor were they present at the disposal exercise and that they were denied the right to call witnesses. The High Court, upon examination of the trial record found the prosecution's evidence coherent and un-impeached, applying authorities that arrests and searches in remote areas need not have independent witnesses. The court treated new complaints about the arrest date and place and delay as afterthoughts since they were not raised at trial. The record showed the appellants were informed of and exercised their rights to call witnesses before closing their cases. Consequently, the court found there was no miscarriage of justice, dismissed the appeal, and upheld the convictions and sentences. Still aggrieved, the 2n d appellant lodged his memorandum of appeal on 26th September, 2025, advancing four grounds of appeal, followed by a joint memorandum of appeal filed on 13th February, 2026, with five complaints that, the prosecution failed to prove the case beyond a reasonable doubt, the disposal order of the trophies was made in their absence, the trial court had no jurisdiction due to the lack of consent from the Director of Public Prosecutions (the DPP), the prosecution failed to demonstrate the area of arrest to be within the National Park's boundaries 3

to prove the 1st and 2n d counts and the chain of custody of the exhibits was not proved. It is the latter memorandum which was argued. The appeal was scheduled for hearing on 17th February, 2026. In attendance were the appellants who appeared unrepresented hence fended for themselves. Ms. Monica Alex Hokororo, learned Principal State Attorney, backed by Mr. Nico Malekela and Ms. Happiness Machage, both learned State Attorneys, all appearing on behalf of the respondent. The appellants were ready for the hearing of their appeal but since they were lay persons opted for the respondent to start and they make their reply thereafter. Undisturbed with the arrangement, Mr. Malekela proceeded to address us, prefacing his submission with the fact that the respondent opposes the appeal and supports the concurrent decisions of the two lower courts. Addressing the Court on the grounds of appeal filed on 13th February, 2026, presumably since it covered both appellants compared to the one filed on 26th September, 2025, which only listed the 2n d appellant's grievances. The learned State Attorney, opted to start with the 3rd ground on the court's jurisdiction, after it was claimed the Director of the Public Prosecutions' (the DPP) consent was lacking. He easily thwarted the claim 4

by referring the Court to pages 4 and 5 of the record of appeal were, the two documents are featured. It is a common ground that in economic offences, consent of the DPP is mandatory for conferring jurisdiction to the trial court. And, it is settled law that this consent must cite provisions of the law establishing the offence so charged. See: Kuncha Mbwita Kimase v. R, (Criminal Appeal No. 631 of 2021) [2025] TZCA 1039 (TANZLII) and Shadrack Chacha @ Mwita v. R, (Criminal Appeal No. 543 of 2022) [2025] TZCA 1073 (TANZLII). In this case, the consent is found on page 4 of the record of appeal, and the certificate of the DPP is found on page 5. Both consent and the certificate complied with the requirements of the law by citing the specific provision of economic offence under which the appellants were charged in the 3rd count. Undoubtedly the trial court had jurisdiction. This ground has no merit. On the 2n d ground that the appellants were not present when the court was giving a disposal order, the learned State Attorney without qualm referred the Court to pages 47-49 of the record of appeal, which showed that the appellants were present. 5

The law requires the appellants to be present during the determination of the application for disposal of the trophies and not during the disposition, as alleged by the appellant. See: Mohamed Juma @ Mpakama vs Republic (Criminal Appeal No. 385 of 2017) [2019] TZCA 518 (27 February 2019) and Buluka Leken Ole Ndidai & Another vs Republic (Criminal Appeal No. 459 of 2020) [2024] TZCA 116 (21 February 2024; TANZLII). Indeed, they were present at the hearing of the application for disposal of the trophies and they did thumb signed in Exhibit P4 found on page 47. The ground is without any merit. The next ground pertains to chain of custody. According to the learned State Attorney, the chain of custody was intact. After PW1 and PW2, had arrested the appellants in possession of the government trophies, a certificate of seizure was issued, which was admitted during trial as Exhibit PI and from there they took the appellants and the seized trophies to Mugumu Police Station. The following day that is the 5th April, 2022, PW3 a Wildlife officer, was called to identify the same. After the exercise, he then took the appellants and the government trophies found in their possession to Mugumu Primary Court to apply for a disposal order. Probed by the Court as to whether the exhibit keeper was called before the court to testify on how and from whom did PW4-G.61232 D/CPL Novatus, police officer stationed at Mugumu Police station got the exhibits 6

from while there was no exhibit keeper who was fielded to testify on that. His initial response was that the appellant signed in Exhibit P3. This was followed by another question as to whether signing in the Exhibit P3 - inventory claimed property diminished the requirement for a chain of custody to be established. Modifying his position, the learned State Attorney, admitted that signing in the Exhibit P3, did not do away with the requirement of observing a chain of custody. In his attempt to persuade us, he invited the Court to consider that even, with the broken chain of custody, still the head of lion and its four legs could not easily change hands. The anomaly could therefore not fatally mar the prosecution case. The essence of establishing a chain of custody is to eliminate any possibility of tampering with exhibits. And the same does not necessarily need documentation; a chronological testimony showing the handling of the exhibits from seizure to tendering in court serves the purpose. See: Huang Qin and Another v. R, (Criminal Appeal No. 173 of 2018) [2021] TZCA 210 and Gasper Mahwele and Another v. R, (Criminal Appeal No. 622/2023) [2025] TZCA 408. The record at hand is silent as to whom PW1 handed the exhibits to at Magumu Police Station on 4th April 2023, as there is no sign the same 7

were handed to the exhibit keeper at the police station. However, the record shows that PW3 was given the exhibit for valuation by PW4, and then PW4 filed an inventory with the resident magistrate for an order of disposal. The movement of impounded lion head and four legs was not shown in the record. There is no evidence as from where and whom PW4 obtained the items. Looking at this evidence, it is quite clear that chain of custody was broken. Aware of the principle that not every time where the chain of custody is broken is fatal unless it is shown that the exhibits in question were tampered with and injustice was caused. See: Abas Kondo Gede v. R, (Criminal Appeal No. 472 of 2017) [2020] TZCA 391. In this case, PW1 and PW2 were consistent that they found the appellants in possession of Exhibit P2 and government trophies. However, the absence of an account on who received the items in question and where PW4 retrieved the said items leaves a lot to be desired on the integrity of the chain of custody of the items in question. Nevertheless, considering that the arrest occurred on 4th April, 2022, followed by identification and valuation on 5th April, 2022, and that the seized trophies were disposed of on the same day, the short span of time was too brief for trophies such as a lion's head and its four legs to have changed hands so swiftly. It cannot therefore be said that what was seized 8

from the appellants was different from what was the subject of the disposal order application. We find that the defect, if any is curable in the circumstances of the present case. In addition, we have as well considered the appellants admission Exhibit P3 that they were found in possession of the alleged government trophies and could not prove they had a permit to be in possession as required under section 100 (3) of the Wildlife Act. On the 4th ground, that the prosecution failed to prove the case beyond reasonable doubt, we find the contention raised by the appellants, that their conviction was secured on the basis of wrong evidence and that no exhibits were tendered during the trial, to be a misconception. The record clearly demonstrates that the prosecution proved its case beyond reasonable doubt, the standard required in law. Starting with the evidence of PW1 and PW2, the arresting officers, they testified that they arrested the appellants inside Serengeti National Park while in unlawful possession of weapons (Exhibit P2) and government trophies as listed in the inventory form (Exhibit P4). They further stated that the appellants had no permit from the Director of Wildlife to either enter the park or possess such weapons or trophies. In addition, PW3 identified the trophy as one lion's head and four feet, valued at TZS 11,270,000/=. This evidence was credible and consistent in establishing arrest, search, and seizure. 9

The complaint that no exhibits were tendered during the trial is wholly unfounded. The record shows that PW1 tendered a certificate of seizure, Exhibit PI, signed at the time of arrest. Exhibit P2 comprised the weapons, Exhibit P3 was the valuation certificate, and Exhibit P4 was the inventory form. All these exhibits were duly tendered during the trial. With the exception of minor infractions pertaining to the chain of custody, the prosecution's case was tight and sufficiently established the offence. In light of the above discussion, we find this appeal lacks in merit and is hereby dismissed. It so ordered. DATED at MUSOMA this 25th day of February, 2026. The Judgment delivered this 25th day of February, 2026 in the presence of appellant via video link from Musoma Prison and Jonas Kivuyo, learned State Attorney for the respondent and Mr. Shabani Kanyai, Court Clerk; is hereby certified as a true copy of the original. G. A. M. NDIKA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL