Jamal Karim Mbalika and Another vs Republic (Criminal Appeal No. 133 of 2023) [2025] TZCA 1090 (13 October 2025)

AT SONGEA (CORAM: MKUYE. J.A.. MASOUP, J.A. And ISMAIL J.A.l CRIMINAL APPEAL NO. 133 OF 2023 JAMAL KARIM MBALIKA PETER ALPHONCE MANDE 1 st APPELLANT 2 nd APPELLANT VERSUS THE REPUBLIC RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Songea) 30th September & 13th October, 2025 ISMAIL J.A.: In their joint and several capacities, the appellants herein were arraigned in the High Court of Tanzania at Songea (the trial court). The offence with which they were charged was trafficking in narcotic drugs in contravention of the provisions of section 15 (1) (a) of the Drug Control and Enforcement Act, Cap. 95, read together with Paragraph 23 of the First Schedule to, and section 57 (1) of the Economic and Organised Crimes Control Act, Cap. 200 (EOCCA). (Mlvambina, J.l dated 1s t day of February, 2023 in Economic Case No. 2 of 2022 JUDGMENT OF THE COURT

The High Court of Tanzania at Songea, in which the appellants were arraigned, was convinced that a case had been made out against them. It went ahead and convicted them of trafficking in narcotic drugs and, in consequence, it sentenced them to a custodial sentence for life. The instant appeal is an attempt to protest their innocence. Facts as gathered from the record of appeal inform that, on 14th June, 2020, E. 8969 Sergeant Sabas, PW5, received a tip-off to the effect that the appellants were trafficking narcotic drugs from Mozambique. The said drugs were said to be destined for Songea. Working in collaboration with a certain Mr. George Mendrad Msigala, PW5 went to Namatuhi river and set up a trap which culminated in the arrest of both appellants. On interrogation, both of them allegedly confessed that the consignment that they carried contained cannabis sativa (exhibit P4), commonly known as bhangL The consignment was packed in three polyethylene bags, carried in two different motor cycles ridden by the appellants (exhibit P6 and the other one with registration No. MC 551 CKD which was not tendered in court). At Mpitimbi Police Station, certificates of seizure (exhibits P7 and P8) were filled by PW5. The seized items were handed to PW4 for onward transmission to PW2 the latter of whom conveyed exhibit P4 to the Weights and Measures Agency. The agency put the suspected drugs on

scale to establish their weight. Subsequently, exhibit P4 was handed to PW3 for submission to the Government Chemist Laboratory Authority in Mtwara. PW1, a government chemist, carried out tests of the samples extracted from exhibit P4 and returned a verdict that confirmed that exhibit P4 was, indeed, composed of narcotic drugs by the name of cannabis sativa as they contained tetrahydro cannabino, a substance only found in cannabis sativa. After the test, exhibit P4 was returned, through PW3, for custody by PW4, until its tendering during trial. The defence testimony was composed of the appellants' own oral account. The 1s t appellant, who featured as DW1, denied involvement and contended that, his encounter with the police was as a result of his arrest on a suspicion that he bought a stolen television set. He stated that, after two days of incarceration, he was taken to an interview room where, to his utter astonishment, he was accused of dealing in narcotic drugs. He contended that, he was subsequently arraigned in court where he was joined with the 2n d appellant, a total stranger to him. As for 2n d appellant, his defence was also a denial of the allegation of drug trafficking. His contention was that, the allegation of getting involved in a brawl at a night club is what landed him in trouble, and that this mutated into a serious drug trafficking allegation when he was consigned to police custody at Songea Police Station. It was during 3

interrogation with a police officer that the allegation of trafficking in narcotic drugs surfaced. The trial court was unfazed by the defence. It found that the prosecution had done enough to establish the appellants' culpable role. In consequence, it went ahead and convicted the appellants and sentenced them to imprisonment for life. The conviction and sentence have been met with resentment from the appellants. They have preferred an appeal to this Court, predicated on a total of 12 grounds of appeal. However, in view of what transpired in the course of the hearing of the appeal, as we shall demonstrate shortly, reproduction of the substance of the said grounds is, in our view, unnecessary. When the matter came for hearing before us, the appellants appeared in person, fending for themselves, whilst the respondent Republic was represented by Ms. Mwajabu Tengeneza, learned Principal State Attorney, assisted by Messrs. Frank Chonja and Issa Issa Chiputula, learned State Attorneys. Hearing of the appeal kicked off when Ms. Tengeneza rose to address us on a point of law. Her point of contention was that the trial proceedings which bred the instant appeal related to economic offences which are regulated by, inter alia, the provisions of the EOCCA whose section 26 (1) requires that trial proceedings be preceded by a consent

issued by the Director of Public Prosecutions (DPP). So imperative is the need for issuance of the DPP's consent that absence thereof vitiates proceedings, she contended. In the instant case, Ms. Tengeneza argued, the trial proceedings were commenced in the absence of the DPP's consent. Acknowledging that this was an anomaly of profound effect, the learned counsel urged us to nullify the trial proceedings and the judgment thereof, and quash the conviction and sentence meted out to the appellants. Addressing us on the way forward, Ms. Tengeneza was initially of the contention that an order for retrial was a fitting course of action. She changed tact, however, after a short dialogue with the Court. She highlighted other irreconcilable inconsistencies that marred the proceedings. The learned counsel was wary of taking that route as she felt that an order for retrial would hand the prosecution an opportunity to patch up their case and inject life into it to the appellants' detriment. Some of the contrarieties she pointed out were: One: absence of a search warrant in a search which was, by its nature, a regular search. Two, absence of a person who would serve as an independent witness to the search allegedly conducted and from which the said narcotic drugs were seized. Such absence, she argued, created justified doubts and raised a

question mark on whether what is alleged to have been seized was truly recovered from the appellants. Ms. Tengeneza bolstered her argument by referring us to our earlier decision in Jumanne Leonard Nagana @ Azori Leonard Nagana v. Republic, Criminal Appeal No. 215 of 2019 [2021] TZCA 650, in which consequences of failure akin to this were underscored. She, in consequence, implored us to allow the appeal, quash the conviction, set aside the sentence and set the appellants free. The appellants, who had nothing substantive to submit on, graciously welcomed the respondent's position. They, too, urged us to allow the appeal and set them at liberty. As we embark on the disposal journey, we find it apt to give a preface of what the law dictates in cases of this nature. It is to the effect that commencement of trial proceedings in respect of corruption and economic offences is tied to some specific conditions, key among them is the requirement for issuance of a consent. This is a power vested in the DPP, and the conferring provision is section 26 (1) of the EOCCA (as it existed before the repeal) which stipulates as follows: "Subject to the provisions o f this section ; no trial in respect o f an economic offence may be commenced under this Act save with the consent o f the Director o f Public Prosecutions ." 6

What we gather from this stipulation is that, the conduct of proceedings which fall under the provisions of the EOCCA must conform to this legal requirement. A trial whose conduct is not preceded by issuance of a consent has the effect of turning the proceedings and decisions bred out of them into a mere farce. They lack requisite legitimacy and the resultant consequence is that such proceedings are a nullity. We have restated this position many a time. In Kulwa Kashiki v. Republic, Criminal Appeal No. 208 of 2021 [2023] TZCA 17928, the Court referred to its earlier decision in Mhole Saguda Nyamagu v. Republic, Criminal Appeal No. 337 of 2016 [2019] TZCA 61. Accentuating the fate from which the proceedings conducted in the absence of a valid consent suffer, we observed as follows: "From the foregoing brief discussion, we are satisfied that in the absence o f the DPP's consent given under section 26 (1) o f the Act and the requisite certificates undersubsections (3) and (4) o fsection 12 o f the Act, the trial District Court had no jurisdiction to hear and determine charges against the appellant, as it did. We further firmly hold that the purported trial o f the appellant was a nullity. In similar vein, the proceedings and judgment made by the High Court dated 8/06/2016 based on null proceedings o f the trial court were also a nullity." i

This firm stance was reiterated in Mwanaharusi Salimu Mshahara v. Republic, Criminal Appeal No. 403 of 2022 [2024] TZCA 304 in which proceedings whose consent was discrepant were vitiated. In arriving at the conclusion, the Court held: "It is the position o f this Court and has been weii settied in our jurisprudence that, if an accused person is arraigned before [a] subordinate court for an economic offence under the EOCCA and there is no consent to try the accused...the entire proceedings become a nullity." This is the fate that awaits the trial proceedings and the resultant judgment from which this appeal emanated. We nullify the said proceedings of the trial court, quash the judgment thereof, and set aside the conviction and sentence imposed on the appellants. Having done so, the next question for our determination is: what is the next course of action? Ms. Tengeneza has pointed out ailments that exist in the prosecution's case. We are in full agreement with her sound argument that serious flaws exist in the prosecution case, and we hasten to add that, while retrial would fall as a natural consequence upon vitiation of the proceedings bred out of the discrepant process, the flaws pointed out are too humongous to cast a blind eye on. They profoundly render the trial and appeal proceedings a mere travesty which cannot be

remedied by ordering a retrial lest the prosecution is handed a glorious opportunity to strengthen their case to the appellants' detriment - see: Fatehali Manji v. Republic [1966] E.A. 341. Thus, in Mbaraka Jimwaga @ Karumbete & 5 Others v. Republic, Criminal Appeal No. 211 of 2021 [2023] TZCA 17938, the Court declined the invitation to order retrial where it found that the respondent's prayer was an attempt to avail itself of an opportunity to mend a fledging case. It observed as follows: 'We are o f the firm view that circumstances o f this case in which the proceedings are laden with other substantive andproceduralirregularities, including the broken chain o f custody, absence o f seizure certificate and, in some cases, failure to label the exhibits, favour a conclusion that this appeal ought to be allowed. In any case, it is settled law that the remedy o f retrial cannot be considered where, as is the case here, there is no proper charge." See also: Dilipkumar Maganbai Patel v. Republic, Criminal Appeal No. 270 of 2019 [2022] TZCA 477; Malegi Shenye @ Lusinga v. Republic, Criminal Appeal No. 152 of 2020 [2023] TZCA 17394; Peter Kongori Maliwa & 6 Others v. Republic, Criminal Appeal No. 253 of 2020 [2023] TZCA 17350.

In view of the foregoing, therefore, having nullified the proceedings as stated above, we order that the appellants be immediately released from prison unless held for other lawful reason. DATED at SONGEA this 09th day of October, 2025. R. K. MKUYE JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL Judgment delivered this 13th day of October, 2025 in the presence of the Appellants in person, Mr. James David Rhobi, learned State Attorney for the Respondent/Republic and Mr. Elias Nkwabi, Court Clerk, is hereby ce true copy of the original. vm A. S. O-fUGULU EPUTY REGISTRAR COURT OF APPEAL