AL Baswiru Ramadhan vs Republic (Criminal Appeal No. 895 of 2023) [2025] TZCA 1095 (13 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCORAM: KOROSSO, J.A., KENTE, J.A., And KHAMIS, J.A.^ CRIMINAL APPEAL NO. 895 OF 2023 AL BASWIRU RAMADHAN .......................................................... APPELLANT VERSUS THE REPUBLIC ......................................................................... RESPONDENT (Appeal from the Judgment of the Resident Magistrate's Court of Mwanza at Mwanza (Ext. Juris.) (Ndyekobora, PRM. Ext J uris) dated the 3rd day of July, 2023 in fDC) Criminal Appeal No. 03 of 2023 JUDGMENT OF THE COURT 3rd & 13* October, 2025 KHAMIS. J.A.: The appellant, A! Baswiru Ramadhan, was charged with the offence of stealing by officer of a company contrary to section 272 of the Penal Code, Cap 16, R.E 2019. He pleaded not guilty to the charge and the matter proceeded to trial. The trial was presided over by two magistrates, the first Magistrate who received the evidence of PW1, PW2 and PW3 and the successor magistrate, Nyahega, RM who admitted the remaining evidence of PW3, PW1 when he was recalled and the defence evidence of DW.l Abbi Wilson Malemo and DW2 Al Baswiru Ramadhan.

At the conclusion of trial, the District Court of Ukerewe (Nyahega, RM) found the appellant guilty and convicted him as charged. He was sentenced to fourteen (14) years imprisonment. Additionally, the appellant was ordered to pay TZS 15,134,150.00 in compensation to the complainant, Waningo Micro Credit Company Limited, after serving the custodial sentence. Dissatisfied with the conviction and the sentence, the appellant appealed to the High Court of Tanzania, Mwanza vide DC Criminal Appeal No. 56 of 2022. In terms of section 45 (2) of the Magistrates' Courts Act (the MCA) the appeal was transferred to the Resident Magistrates1Court 6f Mwanza at Mwanza■ and.assigned.to M. 0. Ndyekobora,,fPRM with Extended Jurisdiction. In the latter court, the appeal was renamed as RM DC Criminal Appeal No. 03 of 2023. Before the first appellate court, the appellant contended that the conviction was baseless as there was ho evidence to prove theft of TZS 15,134,150.00; the auditor's report (exhibit P8) was unreliable; the trial magistrate improperly shifted the burden of proof from the prosecution to the appellant; the sentence was illegal; the trial magistrate was conflicted and thus biased; the trial court erroneously relied on the evidence of PW1 who is incredible, and untrustworthy; and the charge was fabricated. 2

The first appellate magistrate framed one issue for determination, whether the appeal had merits. Based on that, she concluded that there was no error of law or principle committed by the trial court in its finding that the prosecution had presented proof beyond reasonable doubt. At the end, she was upbeat that the appellant committed the offence charged. Consequently, the appeal was dismissed and the sentence upheld. ■ Once again aggrieved by the outcome of the first appeal, the appellant moved this Court to revisit the concurrent findings of the lower courts on three grounds, namely: one, relying and acting on exhibits PI, P2, P3/'P4, P5, P6 and P7 which were not read out in court after being admitted in evidence; two, failure to find that the case was not thoroughly investigated as the prosecution failed to produce the loan application letter, a crucial document to prove the charge of theft in the circumstances of the case; and three, failure to find that exhibit P8 was not relevant to prove the charge. To provide* the context, we would like to briefly summarize the background of the case that prompted the appeal. By a written agreement dated the 26th day of August, 2018 the appellant was employed by Waningo Micro Credit Company Limited as a loan officer for a one-year renewable term half of which was a probation period. He was stationed

at Ukerewe District, Mwanza Region. The iemployer, Waningo Micro Credit Company Limited, was a registered company and licensed to operate the microcredit business in Ukerewe District. Its objectives were mainly to generate revenue through interest, manage cash flow, and diversify the loan portfolio to manage risk and maximize returns. Subsequently, the appellant was promoted to become a branch manager in Ukerewe while PW1 Tegoye Magongwe Mwita, remained to be the Managing Director based in Mwanza. The appellant's duties were to oversee the daily branch operations, managing staff, ensuring regulatory compliance, and supervising the loan portfolio to achieve the financial-targets. - ■ . - -v . -* On 3rd May, 2021 PW1 visited Ukerewe and reviewed the company's financial records, identifying a financial loss. He suspended the appellant immediately and reported the incident at the Nansio Police Station. The appellant was arrested on 4th May, 2021 and whisked to the police station where he allegedly recorded a cautioned statement and was remanded into custody. However, the statement was not admitted into evidence following an objection raised by the appellant in the course of testimony of PW3 DC Jovin, the investigator of the case. 4

Meanwhile, PW1 engaged PW2 Johnson Mwijage Byenobi, a Certified Public Accountant (CPA) trading in the name and style of Onduchi Associates, to carry out a special audit of the financial affairs of the company. The forensic audit carried out by PW2 established a loss of TZS 15,000,000.00 due to fake loans or money collected from borrowers but not officially accounted for. PW2's and it findings for the period from 2018 to 29th April, 2021 observed that, the appellant was aware of the persons with outstanding loans whose details could not .be verified as he was not given a chance to respond to the allegations. On that background, the prosecution alleged that, between 21st day of September, 2018 and 29^ day of April, 2021, within Ukerewe District in Mwanza Region, the appellant, being a branch manager of Waningo Micro Credit Company Limited, did steal TZS 15,134,150.00 the property of his employer. When placed on defence, the appellant dissociated himself from the accusation. Opening the drapes, DW1 a proprietor of Maisha Credit Nakatunguru, a firm designed to support small entrepreneurs through micro credit, informed the trial court that, the appellant was an honest person who taught him the business skills. He claimed the case against him was fabricated, out of jealousy over his close relationship with the appellant.

On his part, the appellant detailed his employment history and insisted the case was framed up out of PWl's sinister motive. The alleged loss was not true as the procedure for disbursing loans was followed to the letter for each transaction carried out in the office. His employment record was clean and unimpeachable such that the employer awarded him a certificate of appreciation and a special gift on 15th December, 2020 as per exhibit D lr He claimed PW1 was upset about his close relationship with DW1, whose business posed a threat to the employer's interests. As hinted earlier, the trial court delivered its judgment convicting the appellant and sentenced him as aforestated hence his appeal to the first-appellate court and ultimately/this appeal. When the appeal was placed before us for hearing, the appellant was present in person, unrepresented. On the other hand, the respondent Republic was well represented by a team of three learned State Attorneys, Mses. Jaines Kihwelo, Brenda Mayalla and Mr. Ibrahim Salim. When invited to address the Court, the appellant opted to expound his grounds of appeal. On the first ground, he drew our attention to the various pages of the record of appeal where the trial court admitted exhibits PI, P2, P3, P4, P5, P6 and P7 and contended that, the said 6

exhibits were not read over in court after being admitted. He moved us to expunge them from the record. On the second ground of appeal, the appellant asserted that, the prosecution failed to lead relevant evidence to prove the charge. He named such evidence to include the loan agreements, receipts issued to customers, bank statements or any other financial document applied in the loan disbursement process to prove that, he had issued fake loans or stole money from the complainant's account On the third ground of appeal, the appellant referred us to exhibit P8 which featured at page 103 - 124 of the record of appeal and submitted that, the alleged special'audit report was illegally introduced into the trial court's record. He said at page 45 of the record of appeal, the trial court admitted a letter allegedly written by the appellant to the complainant as exhibit P8. To his surprise, the letter was removed from the record and replaced with an audit report which was neither produced nor admitted into evidence. He submitted that, the audit report was improperly.before the Court and urged us to expunge it from the record. At the outset, Ms. Kihwelo made an important concession regarding the appeal. The Republic conceded on the first ground of appeal that the prosecution exhibits PI, P2, P3, P4, P5, P6, P7 and P8 were not read over

in court after being admitted. She cited Barnabas William Mathayo v. Republic, Criminal Appeal No. 254B of 2020 for the proposition that, the failure to read exhibits admitted into evidence is against the law. The learned State Attorney contended that, since such documents were not read out after being admitted into evidence, they were rendered valueless and for that reason, she moved us to expunge them from the record. Ms. Kihwelo further contended that, if the said documents were expunged from the record as prayed, the remaining evidence was not sufficient to prove the charge against the appellant: She sard, the charge of stealing by officer of a compiany required the prosecution to establish the act of appropriation, the money belonged to the company, the dishonest intent to permanently deprive the company of the sum stolen, and the appellant being a company director or officer. She signalled that, the auditor who carried out the special audit (PW2) did not tender his report into evidence which could have proved the amount stolen and that, the evidence of PW1 was insufficient as he just showed the appellant was an employee of the complainant company and suspected. She singled out the discrepancy on the prosecution evidence which contradicted the charge on the sum allegedly stolen and

invited us to make a finding that it was enough to allow the appeal. According to the charge, TZS 15,134,150.00 was stolen while PW2 said only TZS 15,000,000.00 was misappropriated. The learned State Attorney submitted that since the evidence and the .charge could not reconcile, the discrepancy went to the root of the charge as there was no evidence to -prove the stolen amount. She maintained that from the nature of the evidence on record it was not safe to return a verdict of guilty on the appellant. That from the judgment of the first appellate court and the contradictions exhibited, the Court should be pleased to.allow the appeal and set aside the judgments of the courts be!ow.ff" * ■ - j, u, , On rejoinder, the appellant reiterated his earlier submissions and contended that, the prosecution failed to establish that his actions were fraudulent and without a claim of right. He was resolute that the charge was not proved beyond reasonable doubt and on that basis, he urged the Court to release him from prison. The role of this Court as the second appetlate Court is welPsettled. It is to review decisions of a first appellate court but in a narrow scope, focusing on substantial questions of law rather than re-examining the facts. It can only review facts where it finds a fundamental legal error that

has a bearing on the facts. In the case of Malmo Montagekonsult AB Tanzania Branch v. Margaret Gama, Civil Appeal No. 86 of 2001 (unreported), the Court pointed out that: "...the first place, an appellate court is not expected to answer the issues as framed at the trial. That is the role o f the trial court. It is, however, expected to address the grounds o f appeal before it Even then, it does not have to deal seriatim with the grounds o f appeal as listed in the memorandum o f appeal. It may, if convenient, address the grounds generally or address the decisive ground o f appeal only or . . ;j discuss each ground separately." Given the concession by the learned State Attorney for the Republic on the first ground of appeal which addresses an important point of law that touches on competency of the exhibits relied upon to convict the appellant, we intend to start with that. Therefore, the issue which commands our determination is first and foremost, whether the prosecution failure to read the exhibits after being admitted into evidence was fatal. As rightly submitted by Ms. Kihwelo, the determination of this issue is likely to dispose of the entire appeal. In Robinson Mwanjisi & 3 Others v. Republic [2003] T.L.R 218 the Court outlined a three-stage process for admission of documentary

evidence, namely: . clearing; which is * verifying the document's admissibility; admitting, which is accepting the document as an exhibit and assign it with a specific mark; and reading out, which is presenting the contents of the document to be recorded in the proceedings and heard by the persons who are present in court. In Lack S/6 Kilingahi v. Republic, Criminal Appeal No. 402 of 2015 (unreported) the Court restated the importance of reading out the document as an exhibit in court, thus: ‘"Even after their admission, the contents o f the cautioned statement and the PF3 were not read out to the appellant as the established practice o f the Court demands. Reading out wouldhave gone a long way, to fully appraise the appellant o f the facts he was being called upon to accept as true or reject as untruthful ...7 / In Barnabas William Mathayo (supra) the Court held that the failure to read over exhibits.DEI, DE2, DE3 and DE4 after being cleared for admission and actually admitted into evidence, was contrary to the law, rendered them with no evidential value and thus, expunged from the record. In this case, it is hot disputed that exhibits PI, P2, P37 P4, P5, P6, and P7 were cleared for admission and then formally admitted by the trial

court as exhibits. However, these documents did not reach the third stage to qualify as exhibits, to wit,, they were not, read out in court as per the legal requirements pointed out in the case of Robinson Mwanjisi (supra). We also noted with concern, that at pages 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44 and 45 of the record of appeal, the trial court was moved to admit into evidence a letter allegedly written by the appellant to his erstwhile employer, the complainant. The prayer attracted an objection from the appellant following which the learned trial magistrate composed a ruling as shown at pages 40, 41, 42, .43, 44 and 45 of the record.^UItimately, the magistrate ruled that the document was admissible and therefore, formally admitted as exhibit P8. Surprisingly, that letter is nowhere in the record of appeal and instead, an audit report allegedly authored by PW2 was sneaked into the trial court's record and purportedly shown as exhibit P8. This alleged audit report was never introduced into evidence by PW2 or any other witness. As such, the appellant was not afforded the opportunity to challenge its admissibility or authenticity. In effect, it has no evidential value. For these reasons, we hereby expunge from the record of appeal all documents tendered by the prosecution witnesses’ and admitted into evidence as exhibits PI, P2, P3, P4, P5, P6, P7 and P8. Having expunged 12

them from the record, we see no other evidence sufficient to prove the charge against the appellant., * In the circumstances, we allow the appeal, quash the conviction and set aside the sentence meted out against the appellant. Finally, we order the immediate release of the appellant from custody unless he is continually held for other lawful cause. DATED at MWANZA this 13th day of October, 2025. judgment delivered this 13th day of October, 2025 in the presence of the appellant in person and Mr. Mahembega Elias Mtiro, learned State Attorney for the Respondent/Republic connected virtually and Miss Harida Hamisi, the Court Clerk; is hereby certified as a true copy of the original. W. B. KOROSSO JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL 13