Kisinza Mathias & Another vs Republic (Criminal Appeal No. 891 of 2023) [2025] TZCA 1107 (15 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: KOROSSO. J.A.. KENTE, J.A., And KHAMIS. J.A.) CRIMINAL APPEAL NO. 891 OF 2023 KISINZA MATHIAS .................................................. . ............1 st APPELLANT LEMBO LUHENDEKA............................................................ 2 nd APPELLANT VERSUS THE REPUBLIC ......................... . ........................ . ........ . ............RESPONDENT (Appeal from the Judgment of the Resident Magistrate Court of Mwanza at Mwanza - Ext. Juris.) fNdvekobora, PRM - Ext. Jurist dated the 14th day of July, 2023 in fDC) Criminal Appeal No. 02 of 2022 JUDGMENT OF THE COURT 1s t & 15thOctober, 2025 KHAMIS. J.A.: This is a second appeal by Kisinza Mathias and Lembo Luhendeka, the appellants, against the conviction and sentence by the Resident Magistrate's Court of Mwanza at Mwanza as the first appellate court. The appellants were charged before the District Court of Nyamagana at Mwanza on one count of trafficking in narcotic drugs contrary to section 15 (1) (a) of the Drug Control and Enforcement Act, Cap 95 R.E 2019 (the DCEA) read together with paragraph 23 of the First Schedule to, and

sections 57 (1) and 60 (2) of the Economic and Organised Crime Control Act, Cap 200 R.E 2019 (the EOCCA). The appellants pleaded not guilty to the charge and the matter proceeded to a full trial. At the trial, the prosecution paraded nine witnesses and produced ten exhibits. At the conclusion of the trial, the appellants were convicted as charged and sentenced to serve 20 years' imprisonment. ! Dissatisfied with the conviction arid sentence, the appellants lodged an appeal before the High Court, Mwanza. In terms of section 45 (2) of the Magistrates' Courts Act (the MCA) the appear was transferred to the Resident Magistrates7 Court of Mwanza (Ext. Juris.) and assigned to ■ Ndyekobora, PRM with Extended Jurisdiction. In her judgment, the first appellate magistrate considered the appeal, re-evaluated the evidence oh record and made her own findings on each of the five grounds in the petition of appeal. In'the end, she found the prosecution proved its case beyond reasonable doubt and consequently, upheld the conviction and sentence meted out to the appellants. ..... Aggrieved with the findings of the first appellate court, ‘ the appellants filed this appeal through a memorandum of appeal containing

two grounds and a joint supplementary memorandum with seven grounds. The nine grounds of appeal faulted the first appellate magistrate for failure to: one, consider the discrepancies in PW1 Sane Mayaya George's testimony, notably the report (exhibit P3) he claimed to have prepared, which bore the name of Sane M. Lyochi as the author; two, consider the unreliable evidence of PW1 which was inconsistent with exhibit P3 on the weight of each of the 4 sacks allegedly containing the narcotic drugs: , three, consider PW4 testified without. oath, contrary, to section 198 (1) of the Criminal Procedure Act (the CPA); four, draw adverse inference against the prosecution which failed to summon ,an independent witness; five, find the Jack of pictures and a sketch map^of the crime scene undermined the prosecution's case; six, find the chain of custody was not established ,as per the, law; seven, find the alleged signature of the first appellant on the.certificate of seizure (exhibit P10) was. questionable; eight, find section 231 of the CPA was not complied with: nine, find the charge against the appellant was .defective for failure to indicate the time of the commission of the offence.contrary to section 135 (f) of the CPA. It is vital to outline the key facts of the case at the outset. The appellants are-residents of Mwongozi and Konanne villages, Tabora

Region, respectively. The origin of their arrest was the intelligence report that PW8 Senior Superintendent of Police (SSP) Juma Jumanne had received in the night of 14thJune, 2019. Upon information that bhangwas being transferred from Tabora to Mwanza, PW8 decided to intercept it at the Nyegezi Bus Stand. While at the bus station, he spotted the appellants disembarking from a bus with four sacks of paddy suspected, to contain the contraband. As the appellants hired a tricycle popularly known as '^ ^ /''w hich carried them and the four sacks, PW8 closely followed, them until the tricycle was packed outside the house of PW4 Anna Kaparii at Nyamazobe street/Kiyegezi area. He'telepHo'fred ’other policemen who joined him after 45 minutes to’arrest the appellants. The second appellant and PW4 were acquaintances. On the fateful date, 14th June, 2019 at 7:00 hours, the second appellant accompanied by the. first appellant visited her residence. According to PW4, the appellants carried two sacks of paddy which were received and kept in the house. After sometime, the visitors went to the Bus station and promised to come.back later. ■ . At 9:00 hours, the appellants went back to the house and dinner was served. As PW4 and her visitors enjoyed the meal, policemen entered

■ the house and arrested the second appellant. They also seized the two sacks of paddy and caused PW4 to sign on a paper which turned o u t to be a certificate of seizure (exhibit P10). In the course of arrest and seizure, the first appellant attempted to run away but policemen caught him before vanishing into thin air. PW8 inspected the four sacks of paddy (exhibit P4) and found that, each of them had a nylon bag sealed with cellotape. Inside the sealed nylon bags, he found dried leaves identified as bhang. The appellants and the sacks were taken to the police station where the former were put into custody. At the police station, PW8 handed the four sacks to the policeman on duty,.’ PW2*' S§rg^ht 'Jonathan. The latter carried the-four sacks of paddy (exhibit P2) to the .custodian of exhibits, Nestory Wangu (PW3). The sacks were recorded in the register of exhibits no. 5/2019 (exhibit P5) as entry number 88/2019.: On 17th June, 2019 the sacks were collected by PW5 Corporal Vasin for onward transmission to the Chief Government Chemist as per the letter of the Officer Commanding Criminal Investigation :'Cfepar1:ment Nyamagana (OC-CID) (exhibit P7). At the office of the Chief Government Chemist, PW5 was received by PW1 Sane Mayaya George who took the samples and carried the chemical analysis; At the conclusion of-the

preliminary analysis, PW1 handed back the four sacks of paddy to PW5. Eventually, he authored a report (exhibit P3) concluding that, the samples tested were cannabis otherwise known as tetrahydrocannabinol (THC) or popularly "bhangi". PW5' returned the four sacks to PW3 who kept them in the exhibits room until his retirement in the year 2021. On retirement, the exhibits were handed over to PW6 Rashid as per the handover notes (exhibit P8). Meanwhile, on 15*h June, 2019 PW5 recorded the second appellant's cautioned statement which was not tendered into evidence. One Corpora! Robert who did not testify at the trial: recorded the cautioned statement (^ t^ fiirk appellant'. — f On 17th June, 2019 PW7 Jumanne Mahimbo, arr officer with Weights and Measures Agency in Mwanza, received a letter from the police requiring him to weigh the exhibits believed to be bhang. Upon placing the four sacks of paddy on a scale, he established their weights as: first, 60.64 kilograms’ second, 59.42 kilograms; third, 65.6 kilograms; and fourth, 59.14 kilograms. Then, he separated the leaves frorh 'the' paddy and found the small parcels measured respectively: 16.8 kilograms; 15.88 kilograms; 17.82 kilograms and 10 kilograms. Ultimately, he prepared a report admitted as exhibit P9.

When placed on their defence, the appellants distanced themselves from the charge. Each of them admitted to come from Tabora but differed on the purpose of their journey. The first appellant said he intended to start a new life in Mwanza while the second appellant maintained that, he moved to Mwanza in search of employment as life was tough in the village. They were arrested for loitering but found themselves facing a charge o f trafficking in narcotic drugs which he contended was fabricated against them. The trial court and the first appellate court considered the appellants' respective defences but rejected them. At the hearing of the appeal; the appellants were present in person, unrepresented. For the respondent Republic, Ms. Jaines Kihwelb, learned State Attorney, teamed up with her fellow learned State Attorneys, Mr. Adam Murusuri and Ms. Hellen Mabula. ' At the commencement of hearing, Ms. Kihwelo successfully moved the Court to disregard the first, second and seventh grounds of appeal-as they were factual- and not raised in the courts below contrary to the law. It follows that, the appellants remained with six' grounds o f> appeal, namely, the: third, fourth, fifth, sixth/eighth and ninth. When invited to address the Court on their grounds of appeal, the appellants sought to adopt their six grounds of appeal and the written

submissions presented in Court on the 16th July, 2025. As they had nothing-to add, they reserved the right to respond to the submissions by the learned State Attorneys. Initially, Ms. Kihwelo resisted the appeal but on reflection, changed her position and supported it on the ground that, the prosecution failed to lead’ the evidence of an independent witness who allegedly witnessed the appellants' arrest-and "seizure of the contraband (exhibit P4) as recorded'in exhibit PiO. Further, the learned State Attorney submitted that, the chain of custody, in respect of the seized illicit drugs was broken down hence not intact. • Addressing us on the two aspects, Ms. Kihwelo referred us to the evidence of PW8 who said there was no independent witness at the time of arrest and seizure. She argued that, although the arrest and seizure was done under circumstances of urgency, no evidence was led to show that it was impossible-to3 get hold of an independent witness. She referred 'Us to the case of Ernest Jackson @ E^waridSkaupesi v. Republic [202i] TZCA 585 where the drugs were retrieved from a motor vehicle that was’ on the highway to Dar es Salaam and no independent person witnessed the search. She asserted that, the Court's finding in EmestJackson @ Mwandikaupesl (supra) that, the absence

of an independent witness was inconsequential on account of the search having been executed in the odd hours of the night in emergency circumstances, could not apply to the present case where the search was done in a residential house with neighbouring houses and at the reasonable hours,

• On the chain of custody, the learned State Attorney referred us at pages 80 and 81 of the record where PW8 said immediately after the seizure, he carried the sacks in a police vehicle up to the police station where they were handed over to PW2. PW2 presented the sacks to PW3 who kept them in a store of exhibits up to when PW5 collected and took fnerrf^to^ the Chief .Government-Ghemist where PW1 attended them. Thereafter, the. sacks were, returned to PW3 .until his retirement and succession by PW6. She contended that, much as the custody sequence was backed by the certificate of seizure (exhibit P10), the exhibits register (exhibit P5), a letter by the OC L CID Nyanaagana to the Chief Government Chemist (exhibit P7), a letter by the Chief Government Chemist to OiE-rCifi "dated 17th June, 2019 (exhibit P'l), the handover notes between P3 and P6 (exhibit P8) and. a. report of the Chief. Government Chemist (exhibit P3), the chain of custody ..was broken down by PW7.

Ms. Kihwelo argued that the prosecution failed to provide evidence identifying the person who delivered the four sacks to PW7. Additionally, she pointed out that there is no evidence of PW7 returning the sacks to the police. She maintained that, by separating the paddy and the bhang from the sacks, PW7 exceeded his scope of handling the exhibits. On that basis, Ms. Kihwelb argued that the prosecution failed to discharge its burden of proof and that, the appellants were entitled to the benefit of doubt. She urged us t6 allow the appeal and release the appellants from custody. ' The appellants'joint written submissions essentially expounded the grounds of appeal and attacked the chain of custody on the basis of the evidence of PW4. They contended that, PW4's testimony that the appellants brought two sacks of paddy materially differed with PW8 who said the police seized four sacks of paddy. They further contended that, despite .mentioning the two sacks,,PW4 did not .lead evidence .on the specific features of, the sacks and as a result, each prosecution witness gave a. different account of such features of the sacks.. They Insisted 'that, the-identity of the sacks ought to remain uniform -in the whole chain'of handling the exhibits from the points of arrest, seizure, storage, analysis, re-storage up to the time of production and admission in court. 10

To start with, our duty as the second appellate court is to consider only issues of law and not matters of fact which were not covered by the two courts below. This legal stance remains as restated in Samweli Sawe v. Republic [2004] T.L.R 151, thus: "As a second appellate court, we cannot adjudicate on a matter which was not raised as a ground o f appeal in the first appellate court. The record ofappealatpages 21 to 23, shows that this ground o fappealby the appellant was hot among : the appellants' ten grounds o f appeal which he filed in the High court. In the case o f Abdul Aihutnari v. Republic[2004] T.L.R ISlthe issue on whetherthe' Court of"Appeal may decide on a - matternotraised in and decidedby the High Court on first appeal was raised. The Courtheld that the Cdurt o f Appeal has ho such jurisdiction: This ground o f appeal is therefore, struck out." We had the occasion to scan the record .of appeal, to review the memorandum of appeal, the supplementary memorandum of appeal, the appellants'joint written submissions and'the response.;.by-..the> learned State Attorney for the respondent Republic. The grounds of appeal invited us to determine several intricate questions that lie at the intersection of procedural propriety and substantive issues involved in this appeal. ii

However, the learned State Attorney made concession on two fundamental issues which are significant for the administration of justice and the rights of the appellants. Considering.that, these two grounds are likely to dispose of the appeal, we see the need to address them first. Therefore, two main issues emerge, for our determination, namely': one, whether the omission to involve an independent witness at the commencement of the search and seizure of the sacks was fatal; and two, whether the chain of custody was broken down. ' An independent'witness is a person who is neutral with no personal or financial interest in a case. Due to lack of bias, their testimony or signature in a legal document is considered reliable and objective. He provides unbiased testimony that is not influenced b^ personal interest. The legal bases for an independent witness in cases of narcotic drugs was stated by this Court in the case of The Director of Public Prosecutions v. Mussa HatibuSembe, Criminal. Appeal.No. 130 of 2021, thus:.

• • . .. M * "Going through the citedprovisions,:presence o f a witness during search and:seizure.features under section 48 (2) (c) (vii) where a witness is required to sign Form No. DCEA 003 used to record the seizedarticle. . .,

The forms in the ThirdSchedule to the DCEA have been mandated under section 48 (5) thereof to apply in carrying out the provisions o f section 48 (5) o f the DCEA. Therefore, because there is a requirement for a witness to sign Form No. DCEA 003, which is part o f the DECEA, it is imperative that in the case o fsearch and seizure o fan article from a suspect, witnesses should attend and sign the Form." In this ease, it is not disputed that no independent witness was involved during the search, arrest of the appellants and the alleged seizure of the four sacks at the residence of PW4. This is clear from the evidence of RW4fand PW8, the only prosecution witnesses involved in the arrest and seizure. However, the DCEA Form 003 which is the seizure certificate (exhibit P10.) contradicts the evidence of-these two witnesses. The form shows, the seizure vyas witnessed by one, Salum Rashid, a resident of Butimba B, Mwanza. It is not clear as to when Salum Rashid was involved as an independent.witness without knowledge of the appellants,-PW4 and PW8 who were at the scene. This revelation, casts doubts on the authenticity and reliability. of this document and .the entire seizure procedure. 13

The second issue is on the chain of custody. The chain of custody may be defined as the chronological record of the evidence journey from collection to the court, ensuring its integrity by recording who handled it, when, and for what purpose. As rightly submitted by the appellants, it involves its custody, control, transfer, analysis and final production in court. The process ensures the evidence is the same as what was originally .seized.' In Paulo Maduka & 4 Others v. Republic/ Criminal Appeal No. 110 of 2007. (unreported), the Court had this to say: "By chain o f custody we have in mind the chronological documentation and 1 or/paper trail, showing the seizure, custody, controi, transfer, » 1 • " * * -i ' i , - J * ■ Y V L * ' * * ' analysis and disposition of evidence, be it physical or eiectrbnic. The idea behind recording the chain o f custody it is stressed, is to estabiish that the alleged evidence is in fact related to the alleged crime." As per the record, it is not disputed that, the appellants were arrested on 14th June, 2019v However, the prosecution..witnesses, PW4 and PW8 differed'sharply oh what was seized from the a; ppellanf at’ the time of arrest. According to exhibit P10 and the testimony of PW8, the appellants were found in possession of dry leaves kept in four sulphate bags inserted inside four sacks of paddy. On her part, PW4 said on..the 14

fateful day, the. appellants brought two sacks of paddy at her residence which were subsequently seized by the police. The question is therefore, whether the integrity and evidential utility of the four sacks remained intact throughout the journey from the point of seizure to production in court. Having examined the evidence on record, we are satisfied that, the handling of the four sacks by the prosecution witnesses leaves a lot to be desired. As earlier on stated, the ■certificate of seizure (exhibit P10) contains the name of Saliim Rashid, an alleged independent witness whose presence contradicts the evidence of PW4 and PW8 who said that hpfe liHdependent witness was involved. In the circumstances, exhibit P10 is disregarded. Secondly,, the certificate of seizure (exhibit PIG) showed the leaves believed to be bhang were wrapped, in sulphate bags which were; kept in each of the four sacks.of paddy. However, PW8 said, the bhang was kept in nylon bags which were wrapped with cellotape and placed in the sacks whose descriptions were.not given.. PW2 said generally that, he was given the four sacks of paddy vVhich were collected from a police vehicle. He did hot describe how the sacks, looked like. PW3 said the sack§ were kept in the exhibits room and contained leaves arid'rice. PW5 testified that, the four sacks had paddy. 15

According to PW1, the sacks had paddy and bhang. On examination, PW6 said the paddy was mixed with bhang in each of the four sacks. On his part, PW7 said the sacks were packed with leaves believed to be bhang and paddy. The evidence of PW8 shows the four sacks contained bhang and paddy. It is evident that, none of these witnesses uniformly described the outlook and contents of the four sacks. Again, as rightly submitted by Ms. Kihwelo, there is a lacuna in the evidence regarding the handling of exhibit P4 by PW7. The prosecution did-not lead evidence as to how the sacks were taken to PW7 who weighed them and, for no apparent reason, opened each of the sacks to separate-the paddy from the dry leaves believed to be bhang. No witness testified as to how the sacks were given back to the police after PW7 completed his work. In our view, this was a serious break of the chain of custody, which makes it unsafe to rely on such exhibits to found a conviction against the appellants. Consequently, exhibit P4 is expunged from the record. Since possession of narcotic drugs is a key ingredient in proving the offence of trafficking in narcotic drugs, we are settled that, the absence of exhibit P4 negatively impacts on the prosecution case. For this reason, we see no need of addressing the remaining grounds of appeal. 16

In the result, we find the appeal meritorious and accordingly allow it, quash the conviction and set aside the sentence meted out against the appellants. Finally, we order the immediate release of the appellants from custody unless they are continually held for other lawful cause. DATED at MWANZA this 13th day of October, 2025. W. B. KOROSSO JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL Judgment delivered this 15th day of October, 2025 in the presence of the appellants in person and Ms. Hellen Chuma, learned State Attorney for the Respondent/Republic and Miss Harida Hamisi, the Court Clerk; is hereby certified as a true copy of the original.