Marwa Mwita @ Mtatiro & Another vs Republic (Criminal Appeal No. 545 of 2022) [2025] TZCA 1071 (13 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: KEREFU. J.A.. MWAMPASHI, J.A. And AGATHO. J J U CRIMINAL APPEAL NO 545 OF 2022 MARWA MWITA @MTATIRO MARWA MWITA @CHACHA.. .1 st APPELLANT 2 nd APPELLANT VERSUS THE REPUBLIC RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma) JUDGMENT OF THE COURT . 7th & 13th October, 2025 AGATHO, J.A.: The appellants, Marwa s/o Mwita @ Mtatiro and Marwa s/o Mwita @ Chacha, were charged before the District Court of Serengeti at Mugumu (the trial court) with three counts under the Wildlife Conservation Act No. 5 of 2009 read together with the Economic and Organized Crime Control Act [Cap. 200 R.E. 2002] (as amended by the Written Laws (Miscellaneous Amendments) Act No. 3 of 2016). On the first count, the appellants were charged with the offence of unlawful entry into the game reserve contrary to section 15(1) and (2) of the Wildlife Conservation Act. It was alleged that, on 27/11/2019 at Mto Risiriba area in Ikorongo Grumeti Game fMbaawa. J.l dated the 14th day of September, 2022 in Criminal Appeal No. 160 of 2021 i

Reserve within Serengeti District in Mara Region, the appellants entered the said Game Reserve without the permission of the Director thereof, previously sought and obtained. On the second count, they were charged with unlawful possession of weapons in game reserve contrary to section 17(1) and (2) of the Wildlife Conservation 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. 2002] as amended by the Written Laws (Miscellaneous Amendments) Act No. 3 of 2016. It was alleged that on the same date and place, the appellants were found in unlawful possession of weapons to wit one panga and one knife without the permit and failed to satisfy the authorized officer that the said weapons were intended to be used for purposes other than hunting, killing or capturing of wild animals. On the third count, the appellants were charged with unlawful possession of government trophies contrary to section 86(l)(2)(c)(iii) of the Wildlife Conservation Act, No. 5 of 2009 as amended by the Written Laws (Miscellaneous Amendments) Act No. 2 of 2016 read together with paragraph 14 of the First Schedule to, and sections 57(1) and 60(2) of the Economic and Organized Crime Control Act [Cap.200 R.E. 2002] as amended by the Written Laws (Miscellaneous Amendments) Act No. 3 of

2016. It was alleged that, on the same date and place, the appellants were found in unlawful possession of Government Trophies to wit: two hind limbs of Impala and two heads of Impala valued at TZS 1,794,000.00, the property of the United Republic of Tanzania. The appellants denied the charges and the case proceeded to a full trial. In a bid to prove the case the prosecution paraded four witnesses, and tendered four exhibits. The appellants defended themselves without calling any other witnesses. The evidence upon which the courts below grounded conviction was that, on 27/11/2019, around 06:40 hours, Utena Rashid Kabuchenda (PW1) and Kabichi Suma (PW2), both game scouts attached to the Ikorongo/Grumeti Game Reserve in Serengeti District, Mara Region, were on routine patrol in the Mto Risiriba area along with fellow scouts Kulwa Maganga and Rogatiri Gambachara. They spotted two individuals carrying a luggage on their shoulders. The scouts surrounded the men, arrested them, and conducted a search. The arrested individuals were identified as Marwa s/o Mwita @ Chacha (DW1) and Marwa s/o Mwita @ Mtatiro (DW2), who are now the appellants, both residents of Serengeti District. The search revealed one panga and one knife, which the scouts believed were intended for poaching purposes, as well as government

trophies consisting of two fresh hind limbs and two fresh heads of Swala Impala. The appellants had no permits for entering the reserve, possessing the weapons, or holding the trophies. PW1 and PW2 prepared a certificate of seizure (exhibit PI), which detailed the items and was signed by the appellants and the scouts. PW1 also tendered the weapons, a panga, and a knife which were admitted as exhibit P2 collectively. The appellants were then escorted to Mugumu Police Station, where a case file (MUG/IR/3523/2019) was opened. G.3694 DC Shaban (PW4), a police officer. in the Criminal Investigation Department at Mugumu Police Station, was assigned to investigate the matter. He recorded statements from the witnesses and ensured the trophies were identified and valued. Wiibroad Vicent (PW3), a wildlife warden from Mugumu, Serengeti, examined the trophies and confirmed that they were from two recently killed Impala. He prepared a trophy valuation certificate (exhibit P3), assessing their value at TZS 1,794,000,00, classifying them as protected under the Wildlife Conservation Act. Due to the perishable nature of the trophies, the trial magistrate ordered their disposal after inspection, and an inventory of claimed property (exhibit P4) was prepared and signed by the appellants, confirming their presence during the process.

In their defence, Marwa s/o Mwita @ Chacha (DW1) testified that he was arrested around 18:00 hours on 27 November 2019 at his farm in Bonchugu Village while farming with his wife, Mniko Matinde. He claimed the game officers took him to their camp overnight and brought him to court the next day, denying any involvement in the reserve or possession of the items. Marwa s/o Mwita @ Mtatiro (DW2) stated that he was arrested around 09:30 hours on the same day at Mbilikiri Village while felling down tree poles with his friend Mwita Werema, who managed to escape. He insisted he was not in the game reserve and had no knowledge of the offenses. Both appellants listed their potential witnesses (Nyangi Mwita and Mwita Matinde for DW1; Mwita Marwa Werema for DW2) but did not call them during the trial. The trial court found the prosecution's evidence consistent and credible, proved the charge beyond reasonable doubt, convicted both appellants on all counts. They were sentenced to one year imprisonment on the first count, two years on the second count, and twenty years on the third count, all to run concurrently. Aggrieved, they appealed to the High Court which partly allowed their appeal on the first and second counts. However, it dismissed the appeal on third count and upheld the conviction and the sentences imposed by the trial court in that respect. Dissatisfied, the appellants appealed to this Court raising fqur grounds of

appeal which we will not reproduce for the reasons that will become apparent shortly. At the hearing of the appeal, the respondent Republic had the services of Ms. Grace Michael Madikenya, learned Senior State Attorney assisted by Mr. Zarubabel Ngowi, learned State Attorney. On their side, the appellants appeared in person and were unrepresented. At the outset, the learned Senior State Attorney submitted that they support the appeal although not based on the grounds of appeal advanced by the appellant rather due to legal defects. Ms. Madikenya thus, sought leave which was granted to address the Court about the Consent and the Certificate issued by the Senior State Attorney In-charge, found at pages 7 and 8 of the record of appeal, that they lacked sections of the law establishing the offence of unlawful possession of government trophy which is an economic offence (the 3r dcount). She submitted that, the two documents that confer jurisdiction upon the trial court to entertain the economic offence did not specify the offences with which the appellant is charged, hence the trial court was not vested with jurisdiction as held in the case of Kwabi Nila@Limbu v. Republic [2024] TZCA 1028. Due to that defect, she invited the Court to nullify the proceedings and decisions of the courts below and order a retrial. She contended that 6

the evidence of PW1 and PW2 proved the offence of unlawful possession of government trophy. However, upon being probed by the Court she conceded that there was no proof that they were found in the game reserve. She however, continued to press for a retrial order. Being laymen, the appellants had nothing to add than beseeching the Court to set them free. In determining the merits of the appeal, we agree with the learned Senior State Attorney that there are legal defects with regards to the consent and the certificate issued by the Senior State Attorney In-charge which rendered the trial court to have acted without jurisdiction. After paying due consideration to record of appeal, we find substance in the learned Senior State Attorney's submission that proceedings of the trial court and the High Court were a nullity because they stemmed from invalid consent and certificate issued by the Senior State Attorney In-Charge not containing the provision for charging offence in the third count. Therefore, we invoke the revisional powers of the Court under section 6 (2) of the Appellate Jurisdiction Act [Cap. 141 R.E. 2023] and nullify the lower courts' proceedings and judgments, quash the conviction and set aside the sentences imposed on the appellants.

As to the way forward, Ms. Madikenya pressed for the retrial order. However, for the reasons which will be stated shortly that order is unwarranted. Since the learned Senior State Attorney insisted on the order for retrial, a starting point is to ask in the line of Fatehali Manji v. Republic [1966] EA 343 whether this in the interest of justice, is a fit case for retrial. It is a good law that a retrial cannot be ordered to enable the prosecution to fill the gaps in their evidence or to correct their own errors or that of judicial officers. There is no dispute that the appellants were acquitted of the first count of unlawful entry into a game reserve due to lack of proof. The same applies to the second count on unlawful possession of weapons in game reserve. In our scrutiny, we have noted that PW1 on page 26 of the record of appeal testified that they were patrolling at Mto Risiriba area within Ikorongo Gurumeti - Game Reserve they saw the appellants carrying luggage on their shoulders, they searched them and found them in possession of one panga, one knife and government trophies namely, two hind limbs of Swala Impala and two fresh heads of Impala. The High Court was satisfied that the above was not substantiated. No coordinates or a map indicating the game reserve boundaries was provided before the trial court to confirm that the appellants were indeed arrested in the game reserve. From that, there is no gainsaying that if it was alleged that the 8

appellants were arrested in the game reserve with the government trophies and there is no proof that there were indeed arrested for unlawful entry in the game reserve, the third count on unlawful possession of government trophies dies naturally. We understand, unlawful possession of government trophy is an offence. But in the case at hand, if we heed to Ms. Madikenya's invitation, then the offence of being found in unlawful possession of government trophies will have been committed at unknown place. The particulars will certainly be irregular and unjust. We shall demonstrate that this will be a perfect example of where the prosecution will fill the gaps at the detriment of the appellants something which Fatehali Manji (supra) has warned against. We are of the decided view that failure to mention the place where the offence of possession was committed is an incurable irregularity. For the sake of clarity, we will reproduce the statement and particulars of offence in the third count as seen on page 2 of the record of appeal upon which the courts below convicted the appellants. It read as follows: 3 rd COUNT: STA TEMENT OF OFFENCE: UNLAWFUL POSSESION OF GOVERNMENT TROPHIES: Contrary to section 86(1) and (2) (c) (Hi) o f the Wildlife Conservation Act No. 5 o f2009

as amended by the Written Laws (Miscefianeous Amendments) Act No.2 o f2016 read together with paragraph 14 o f the first schedule to, and section 57 (1) and 60(2) o f the Economic and Organized Crime Control Act [Cap. 200 R.E. 2002] as amended by the Written Laws (Miscellaneous Amendments) Act No. 3 o f 2016. PARTICULARS OF OFFENCE MARWA S/OMWITA @CHACHA and MARWA S/0 MWJTA@MTATIRO on 27th day o f November, 2019 at Mto Risiriba area into Ikorongo Grumeti Game Reserve within Serengeti District in Mara Region, were found in unlawful possession o f Government Trophies to wit: two hind limbs o f Impaia and two heads o f Impala valued at TZS 1,794,000.00 the property o f the United Republic o f Tanzania. [Emphasis Supplied]. We are firm that it does not need a rocket science to appreciate that if the words in bold are removed in the particulars of offence, it becomes unclear as to where the offence was committed or where exactly the appellants were found in unlawful possession of the government trophies. In the upshot, we find a retrial order unjustifiable. There is plethora of authorities where the jurisdictional errors noted, and the failure to prove the place where the appellants were caught with 10

unlawful possession government trophy leads to crumbling of the prosecution case. See the cases of Buluka Leken Ole Ndidai & Another v. Republic [2024] TZCA 116; and Peter Kongori Maliwa & Others v. Republic [2023] TZCA 17350. Moreover, although in the case at hand the learned Senior State Attorney insisted for a retrial order, we subscribed to the position in the case of Kwabi Nila@Limbu v. Republic [2024] TZCA 1028 at page 12, where the Court stated that: "Having observed that the trial was a nullity, likewise the proceedings andjudgment o f the first appellate court, we agree with the learned State Attorney that, a retrial is not worthy in the interests o f justice given the apparent weak prosecution evidence as we will explain" Informed by the above authorities, and the evidence on record, we decline to order retrial as this is a fit case where the prosecution is likely to fill the gaps especially on the particulars of offence of unlawful possession of government trophy regarding the place where the offence was committed. It cannot be said that the offence was committed at unknown place. Before penning off, we should say a word or two on Ms. Madikenya's prayer triggered by exhibit disposal proceedings as found on page 55 of li

the record of appeal. She wondered as to what the Magistrate/judicial officer should write on the comments during exhibit disposal proceedings. Here the Magistrate has written " watuhumiwa wamekirikukutwa na nyara tajwd' which literary means the suspects have admitted being found in possession of government trophies. The learned Senior State Attorney referred us to the case of Buluka Leken Ole Ndidai & Another v. Republic [2024] TZCA 116 in which the procedure for procuring perishable exhibits disposal order was articulated after noting lacunae in the law to give effect to the section 101(1) and (2) of the Wildlife Conservation Act and the then paragraph 25 which is currently paragraph 28 of the PGO No. 229. She beseeched the Court to provide a guide on how to write these comments. We find it appropriate to address a concern raised by Ms. Madikenya on exhibits' disposal proceedings which in her view has somewhat become malignancy. According to the record, the Magistrates have been writing in the perishable exhibits disposal proceedings that the suspect admitted having been found in possession of the government trophy (exhibit). In the premises, we find it imperative to recite the guide provided in the case of Buluka Leken Ole Ndidai (supra) at pages 15-16: "It will be sufficient for a magistrate before whom an order to dispose a perishable government 12

trophy or trophies, to make such order, provided that: one, the prayer to issue the order to dispose o f perishable exhibits may be made by the investigator or prosecution informaiiy before a magistrate in chambers; two, if the order is iikeiy to be reiied upon in any future court proceedings against any suspect, that suspect must be present at the time o f making the prayer and; three, the suspect must be asked as to his comments, remarks or objections as regards the perishabie exhibits sought to be destroyed. Four, if that suspect does not make any comments, remarks or objections, the magistrate shaii record the fact that, the suspect invited to make any comments, remarks or objections, but opted to make none. Five, if the suspect makes any comments, remarks or objections, they shaii be recorded as appropriate either on the reverse side o f the Inventory Form or on any separate piece o fpaper or papers and shaii be signed by the magistrate." In addition to above guidance, we stress that perishable exhibits disposal proceeding is not a proceeding before a Justice of Peace for purposes of recording a suspect's confession. Rather, it is the exhibits disposal proceeding governed by section 101 (1) and (2) of the Wildlife Conservation Act; and paragraph 28 of the PGO. 229.

Therefore, when a magistrate is recording perishable exhibit disposal proceedings should refrain from asking the suspect whether he was found in possession of the exhibit (government trophy) as he is neither sitting as a Justice of Peace nor a trial magistrate. For the foregoing reasons, we allow the appeal, quash the conviction and the sentence imposed on the appellants. We, accordingly, order the appellants' immediate release from custody unless held for any other lawful cause. DATED at MUSOMA this 11th day of October, 2025. R. J. KEREFU JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL Judgment delivered this 13thday of October, 2025 in the presence of the Appellants in person and Mr. Jonas Samwel Kivuyo, learned State Attorney for the Respondent/Republic via Virtual Court and Stella Mlaponi, Court Clerk; is hereby certified as a true copy of the original.