Matera Mwita @ Matera & Another vs Republic (Criminal Appeal No. 544 of 2022) [2025] TZCA 1067 (13 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA ( CORAM: KEREFU, 3.A., MWAMPASHI, 3.A. And AGATHO, J.A.^ CRIMINAL APPEAL NO. 544 OF 2022 MATERA MWITA @ MATERA MARWA MWITA MOTENDE.. .1st APPELLANT 2 n d APPELLANT VERSUS THE REPUBLIC RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Musoma) JUDGMENT OF THE COURT 7th & . 13thOctober, 2025 MWAMPASHI, 3.A.: The appellants, Matera Mwita @ Matera and Marwa Mwita Motende, the 1s t and 2n d appellants herein, were charged in the District Court of Serengeti at Mugumu (the trial court), with three counts under the National Parks Act, Cap. 282 ("the NPA") and the Economic and Organized Crimes Control Act, [Cap. 200 R.E. 2019] ("the EOCCA"). On the 1s t count, in which the appellants were charged with unlawful entry in the National Park contrary to sections 21 (1) (a), (2) and 29 (1) of the NPA, it was alleged that, on 18.06.2020, the appellant were found at Daraja Mbili area within the District of Serengeti in Mara Region, which fMbaawa. 3 / 1 dated the 26th day of October, 2022 in Criminal Appeal No. 147 of 2021 l

is within the Serengeti National Park, without the permission of the Director previously sought and obtained. The 2n d count was in respect of the offence of unlawful possession of weapons in the National Park contrary to section 24 (l)(b) and (2) of the NPA. The particulars of .the said offence were to the effect that, on the same date and at the same place, as stated above, the appellants were found in unlawful possession of weapons to witf one panga and a knife without a permit and failed to satisfy an authorised officer that the said panga and knife were intended for purposes other than hunting, killing, wounding and capturing wild animals. Lastly on the 3r d count, in chich the appellants were charged with unlawful possession of Government trophy contrary to section 86 (1) and (2) (c) (iii) of the Wildlife Conservation Act, No. 5 of 2009 ("the WCA") read together with paragraph 14 of the First Schedule to and sections 57 (1) and 60 (2) of the EOCCA, it was alleged that, on the same date and place, the appellants were found in unlawful possession of Government trophy to wit, two carcasses of Thomson's Gazelle valued at TZS. 2,300,000.00, the property of the United Republic of Tanzania. The appellants entered a plea of not guilty to the charge and in proving the charge, the prosecution called four witnesses whose evidence,

in brief, was to the effect that; on 18.06.2020, park rangers from Serengeti National Park including Anthony Cleophas Mwiseme (PW1) and Paulo Achieng' Tongore (PW3), were on patrol within the Serengeti National Park, when at around 08:00am, they arrested the appellants at Daraja Mbili area in the national park. According to PW1 and PW3, the appellants were in possession of a panga, knife and two carcasses of Thomson's Gazelle and had no permit allowing them firstly, to enter in the national park and secondly, to be in possession of weapons or the two carcasses. To that effect, a certificate of seizure, which was later during the trial, tendered and admitted in evidence as exhibit PI, was prepared. Thereafter, the appellants and the said items allegedly found in the appellants' possession, were handed over to Mugumu Police Station. The panga and the knife were, later during the trial, tendered and collectively admitted in evidence as exhibit P2. The two carcasses allegedly found in the appellants' possession were professionally identified to be of Thomson's Gazelle at Mugumu Police Station by Wilbroad Vicent (PW2), a wildlife officer from Ikongoro Grumeti Game Reserve, on 19.06.2020. The carcasses were valued at TZS. 2,300,000.00 and a Trophy Valuation Certificate was prepared by PW2 in

that respect. At the trial, the said Trophy Valuation Certificate, was tendered and admitted in evidence as exhibit P3. According to E. 75 D/Sgt. Titus (PW4) of Mugumu Police Station, after the two carcasses have been identified and valued by PW2 and as the carcasses were perishable, he had to take them together with the appellants to a magistrate for the issuance of a disposal order. For that purpose, he prepared an Inventory Form which was later, during the trial, tendered and admitted in evidence as exhibit P4. In their respective defence evidence, the appellants denied to have been found within the national park or to have been in possession of the panga, knife or the two carcasses of Thomson's Gazelle. They contended that, they were arrested on 17.06.2020 while clearing the 1st appellant's shamba which is located outside the national park. Based on the prosecution evidence which was found credible, the trial court found the appellants guilty of the 1s t and the 3r d counts. The 2n d count was found not proved to the required standard and, in that respect, the appellants were thus, acquitted. Having been found guilty of the 1s t and 3r d counts, the appellants were duly convicted and sentenced to 2 years' imprisonment on the 1s t count and 20 years' imprisonment on the 3r d count. The sentences were ordered to run concurrently. On appeal to

the High Court, the conviction on the 1s t count was quashed and the respective sentence was set aside on the account that, the provisions of the law under which the appellants were charged on that count, do not create the charged offence. The conviction and sentence by the trial court on the 3r dcount were upheld. Still aggrieved and in their quest to vindicate their innocence, the appellants have preferred the instant second appeal. Before us, at the hearing of the appeal, while the appellants appeared in person without legal representation, the respondent Republic, was represented by Ms. Grace Michael Medikenya, learned Senior State Attorney assisted by Mr. Zarubabel Laurent Ngowi, learned State Attorney. At the outset, before the hearing could commence, Mr. Ngowi who addressed us on behalf of the respondent, informed the Court that, he was supporting the appeal, not on the grounds raised by the appellants in their memoranda of appeal but rather, on a different technical ground. He contended that, the consent for the prosecution of the relevant case against the appellants appearing at page 7 of the record of appeal as well as the certificate conferring jurisdiction to the trial court to try the case appearing at page 8 of the record of appeal, are fatally defective for not citing the specific provision of the law under which the offence on the 3r d

count, which is an economic offence, was charged. For that reason, Mr. Ngowi argued that, the trial court was not clothed with jurisdiction to try the case against the appellants which, as pointed above, involved an economic offence. Placing reliance on the decision of the Court in Sila Sila Chacha & 2 Others v. Republic [2024] TZCA 1027, Mr. Ngowi urged the Court to find that the trial court acted without jurisdiction rendering its proceedings and the resultant judgment, a nullity. He thus, implored upon us to invoke section 6 (2) of the Appellate Jurisdiction Act, Cap 141 ("the AJA"), nullify and quash not only the proceedings and the judgment of the trial court but also do the same to the proceedings and the judgment of the High Court which emanated from the nullity trial court's proceedings. He also prayed for the sentences imposed on the appellants to be set aside. On what should be the way forward, it was Mr. Ngowi's argument that, though, ordinarily he could have pressed for a retrial order, in the circumstances of the case at hand, he could not do so because such an order will not be in the interest of justice on the part of the appellant. He argued that, evidentially, there are many gaps in the prosecution evidence, which if an order for a retrial is made, will be filled in by the prosecution to the prejudice of the appellants. He, for instance, pointed

out that, the chain of custody of exhibits was not established as it is not known who kept them at Mugumu Police Station. Thus, for that reason, Mr. Ngowi urged us to release the appellants. Their appeal having been supported, the appellants had nothing substantial to submit rather than to pray for their immediate release from prison. It is true, as rightly argued by Mr. Ngowi that, the consent for the prosecution of the case and the certificate purporting to confer jurisdiction to the trial court to try the case particularly on the 3r d count regarding the appellants allegedly being in unlawful possession of Government trophy which is an economic offence under the EOCCA, appearing at pages 7 and 8 of the record of appeal, respectively, did not cite the said offence. The consent reads as follows: % MAFURU MOSES, District Prosecution Officer in the National Prosecution Services Serengeti Districtdo hereby, in terms of section 26 (2) of the Economic and Organized Crime Control Act [CAP. 200 R.E. 2019] and GN. No. 284 o f 2014 CONSENT to the Prosecution of MATERA S/O MWITA @ MATERA and MARWA S/O MWTTA @ MOTENDE for contravening the provisions of paragraph 14 of the first schedule to, and section

57 (1) and 60 (2) of the Economic and Organized Crime Controi Act [CAP. 200 R.E. 2019], the particuiars o f which are stated in the charge sheet" The certificate reads as follows: "I, MAFURU MOSES, District Prosecution Officer in the Nationai Prosecution Services Serengeti District, do hereby, in terms o f section 16 (3) and (4) o f the Economic and Organized Crime Controi Act [CAP 200 R.E 2019] and GN. No . 284 o f 2014 ORDER that MATERA S/O MWITA @ MATERA and MARWA S/O MWITA @ MOTENDE who are charged for contravening the provisions o f 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. 2019], be tried by the District Court o f Serengeti District at Mugumu." As it can be clearly observed, section 86 (1) and (2) (c) (iii) of the Wildlife Conservation Act, No. 5 of 2009 ("the WCA") read together with paragraph 14 of the First Schedule to and sections 57 (1) and 60 (2) of the EOCCA, in respect of the offence of unlawful possession of Government Trophies on the 3r d count, was not cited in both, the consent and the certificate. The omission renders the consent and the certificate 8

invalid. In the case of Kulwa Kashiki v. Republic [2023] TZCA 17928, in which the Court was faced with a similar situation, it was emphasized that: "...the way the consent is drafted, there was no clarity on the specific offence the prosecution o f the appellant had been consented against, thus rendering it valueless. Essentially, this means that the appellant was prosecuted without the requisite consent Furthermore, in the case of Chacha Chiwa Marungu v. Republic [2023] TZCA 17311, the appellant was, inter alia, charged with two economic offences which were not specifically mentioned in the consent. The Court held that: "...the economic offences preferred against the appellant were not consented by either the DPP or his subordinate. As such, the trial against the appellant was carried out without the sanction o f the DPP as required under section 26 o f the EOCCA...The above connotes that the appellant was charged, tried and convicted by the District Court o f Serengeti at Mugumu without being clothed with jurisdiction to try the economic offences...as there was no certificate conferring 9

jurisdiction to it and the consent for the said offences to be prosecuted" The above being the position, it is thus, obvious that, the consent and the certificate in the instant case as we have eariier reproduced, did not confer the jurisdiction to the trial court to try the case. Consequently, as rightly submitted by Mr. Ngowi, the trial was a nullity. Under the circumstances and for the above stated reasons, we, in terms of section 6 (2) of the AJA, nullify the proceedings of both two lower courts, quash the resultant judgments and set aside the sentence imposed on the appellants. On the way forward, we are in agreement with Mr. Ngowi that, an order for a retrial will not save the interest of justice. Guided by the principle stated by the erstwhile East African Court of Appeal in the case of Fatehali Manji v. Republic [1966] E.A. 343, we are satisfied that, this is not a fit case for an order for a retrial. Under the circumstances of this case where the lower courts acquitted the appellants on the 1st and 2n d counts of which the particulars of the offences correlate with the particulars of the offence on the 3r d count, the possibility that, if an order for a retrial is made, the prosecution will grab the opportunity to rectify and amend the charge to the prejudice of the appellants, cannot be overruled. 10

In the light of the above, we refrain from ordering a retrial and order an immediate release of the appellants from prison unless they are otherwise held for any other lawful cause. DATED at MUSOMA this 13th 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. C. f^MAGESA^ ^ DEPUTY REGISTRAR COURT OF APPEAL li