Mwita Keryoba Mwita vs Republic (Criminal Appeal No. 156 of 2022) [2025] TZCA 1074 (13 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: KEREFU. J.A.. MWAMPASHI. 3.A. And AGATHO, J J U CRIMINAL APPEAL NO 156 OF 2022 MWITA KERYOBA MWITA......................................................... APPELLANT VERSUS THE REPUBLIC ..................... ................................................ RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma) (Mahimbali, 3.) dated the 7th day of March, 2022 in Criminal Appeal No. 135 of 2021 JUDGMENT OF THE COURT 8th & 13* October, 2025 AGATHO, J.A.: This is a second appeal by the appellant, Mwita Keryoba Mwita, challenging the decision of the High Court of Tanzania at Musoma for dismissing his first appeal in Criminal Appeal No. 135 of 2021. Initially, the appellant was charged in the District Court of Tarime at Tarime with two counts: unlawful possession of a firearm contrary to section 20(1) and (2) of the Firearms and Ammunition Control Act No. 2 of 2015; and Unlawful possession of ammunition contrary to section 21 of the same Act, both read together with paragraph 31 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]. i

The particulars of the offences were, in respect of the first count that the appellant, on 08/12/2018 at Getenga Village within Tarime District in Mara Region was found in unlawful possession of one Firearm to wit: pistol make CZEKA with serial number g.1384 without licence. As for the second count, it was alleged that, on the same date and place the appellant was found in possession of three rounds of ammunition. The appellant pleaded not guilty. The trial ensued and the prosecution called six witnesses and tendered four exhibits: seizure certificate (exhibit PI); one pistol, 3 rounds of ammunition, one magazine and black plastic bag (exhibit P2 collectively), extra judicial statement (exhibit P3), and sketch map of crime scene (exhibit P4). Briefly, the evidence upon which the appellant's conviction was based is that: Inspector Badude (PW1) who works with DCI in Dar es Salaam while in Tarime got information from an informer that the appellant was unlawfully possessing and using a pistol to commit crimes. PW1 collaborated with local police and arrested the appellant on 03/12/2018 at Getenga Village. During interrogation at Tarime Police Station, the appellant confessed to possess the firearm unlawfully. On 08/12/2018, the appellant voluntarily led PW1 and other officers to a spot approximately 70 feet from his house, within the farm of one

Emmanuel s/o Paul. In the process, John Obert @ Ondeba (PW2), the Ward Executive Officer (WEO) of Mbogi ward, accompanied them as a witness. They recovered a pistol make CZEKA CZ 85B with serial number g 1384 KEAPG, containing a magazine with three rounds of ammunition, hidden in a hole under a tree stump inside a black plastic bag. After seizing the pistol, the magazine, the rounds of ammunition, and the bag (exhibit P2 collectively), a certificate of seizure (exhibit PI) was prepared and signed by the appellant, PW1, PW2, and Emmanuel Paul. Later, No. G. 9298 DC John (PW5) drew a sketch map of the scene which was admitted in evidence as exhibit P4. No. F 4397 D/CPL Mustapha (PW6) recorded the appellant's cautioned statement. However, the trial court declined to admit the statement because it was taken beyond the statutory four-hour time limit after arrest and for proved allegation of torture. On 26/04/2019, during a prison visit at Tarime by the Director of Public Prosecutions (the D.P.P.) and other officials, the appellant who was there in prison remanded awaiting his trial, requested to be taken to a Justice of Peace to record his confession, claiming he had already admitted at the police station. The D.P.P. instructed the Regional Crime Officer (RCO) to arrange for the same. On 22/07/2019, ASP George

Lutonja who testified as PW3 escorted the appellant to the Justice of Peace, Chana Mhembe @ Chana (PW4) at Tarime Urban Primary Court. PW4 recorded the appellant's extra-judicial statement (exhibit P3) freely, in which he admitted having been found in unlawful possession of the firearm and ammunition. In his defence, the appellant testifying as DW1, denied the charges, claiming he was arrested without cause on 03/12/2018, that he was tortured to confess and signed documents he did not understand, and further that the evidence was fabricated. He tendered a PF3 medical form (exhibit Dl) showing injuries from alleged beating. No other defence witnesses were called. In the end, the trial court found the prosecution proved the case beyond reasonable doubt and convicted the appellant on both counts. It sentenced him to 20 years imprisonment on each count and ordered the sentences to run concurrently. His first appeal to the High Court was dismissed. Aggrieved, the appellant appealed to this Court with six grounds of appeal as contained in the memorandum of appeal filed on 24/08/2022. Prior to the hearing date, on 06/10/2025, a supplementary memorandum of appeal was lodged in Court. However, it was later abandoned.

At the hearing, the respondent Republic had the services of Ms. Shose Naiman and Mr. Charles Kagirwa, learned Senior State Attorneys. On his side, the appellant was under the representation of Mr. Daud John Mahemba, learned advocate. Onset, the appellant's counsel pointed out that instead of covering all grounds of appeal raised in the memorandum of appeal filed on 24/08/2022, he will submit on the sixth ground that, the prosecution failed to prove the case beyond aii reasonabie doubts . On their part, Ms. Naiman informed the Court that the respondent supports the appeal based on the grounds of appeal put forward by the appellant. Setting the ground, Mr. Mahemba submitted that the case at hand was not proved beyond reasonable doubt. He understands that there are concurrent findings of the lower courts. In such circumstance, he argued, that this being the second appellate court, it can only interfere if there were misdirection, non-direction or misapprehension of the evidence. Revisiting the evidence on record, the learned advocate submitted that, PW1 testified that he got information of the appellant owning the pistol and he set a trap. He also testified that, the appellant led them to where the pistol was hidden. That was corroborated by PW2 who testified

that he was present when the pistol was recovered. On this we failed to comprehend what the learned counsel was trying to challenge. Thereafter, Mr. Mahemba turned to PW3 as seen on page 39 of the record of appeal. He complained that, the witness was not listed during preliminary hearing, and his evidence was not read during preliminary hearing which is contrary to the law. Due to that defect, he implored the Court to expunge PW3's evidence from record. He contended that, PW3 testified that he took the appellant to the Justice of Peace (PW4) and he tendered exhibit P3. According to Mr. Mahemba, exhibit P3-should be disregarded or expunged because it was PW3 who testified that he took the appellant to the Justice of Peace. In his view, since PW3 was not listed during preliminary hearing that affects the extra judicial statement (exhibit P3) tendered by PW4 who testified that PW3 brought the appellant to him. The learned advocated contended that, it is crucial because the appellant in his defence disputed the extra judicial statement Probed as to why exhibit P3 should be expunged, Mr. Mahemba conceded that though the appellant did not object to the tendering of such exhibit, however in his defence, he gave a new version disputing the prosecution evidence and his extra judicial statement. Nevertheless, the

learned counsel understood that there are decisions of the Court that held such U-turn is an afterthought. Despite that principle, he beseeched the Court to consider the appellant's defence considering that he had no legal representation. It was his suggestion that, the Court should weigh the prosecution evidence to determine if the courts below misapprehended it. We agree on the latter point but the former on appellant's defence contradicting or challenging the extra judicial statement that we reject as it was improper to do so. The law is clear that an exhibit must be objected before its admission not afterward. The act of the appellant to challenge exhibit P3 in his defence was an afterthought. We now turn to the reply submission in which Mr. Kagirwa, who as intimated earlier, supported the appeal relying on the ground that, the prosecution did not prove the case beyond reasonable doubt. In a bid to set the record straight, he began with evidence of PW3 (at page 49-50 of the record of appeal). It was his'view that, although the witness was not listed in the preliminary hearing, in the subordinate courts, he may still be called to testify. In support he cited the case of Yusuph Nchira v D.P.P. [2010] TZCA 275. The learned Senior State Attorney argued that, even if PW3 was not included during preliminary hearing rules 4 and 7 of the Accelerated Trial Rules, GN No. 192 of 1988 read together with section 192 of the Criminal Procedure Act, Cap. 20 (the CPA) do not mandatorily

require the names of witnesses to be listed during preliminary hearing. While relying on the case of Jackson Daudi v. Republic [2004] TZCA 114, and Yusuph Nchira (supra) he submitted that, the purpose of that procedure is to accelerate trial and if a witness is not listed during preliminary hearing in the subordinate courts, it is not fatal. He hinted that the remedy is not to expunge the evidence of that witness. On chain of custody, Mr. Kagirwa submitted that PW1 who arrested the appellant, and recovered the pistol and ammunition, (at page 43 of the record of appeal) shows that he gave the seized items to exhibits keeper who was not called to testify. Besides that, PW1 did not mention the name of the exhibit keeper. It is also unclear how PW1 handed over the exhibit to the exhibit keeper, he noted. In addition, the witness neither testified where the exhibits were kept before being tendered in court. Nor did PW1 state the peculiar features of the pistol other than the number and ammunition. As for the failure to call material witness, the learned Senior State Attorney submitted that, PW1 on page 41 of the record of appeal testified that, when the appellant agreed to surrender the pistol (exhibit P2) Emmanuel Paul was present and the appellant in his defence on page 75 of the record of appeal, testified that the pistol was recovered frpm Emmanuel Paul's farm, but he was not called to testify. It was his view

that, Emmanuel ought to have been called to testify. The prosecution did not explain why he was not called to testify. Regarding non-compliance with the Chief Justice's Guideline to Justices of Peace when recording extra judicial statement, Mr. Kagirwa submitted that the Justice of Jeace who testified as PW4 recorded the extra judicial statement of the appellant but he did not comply with the Chief Justice's Guideline as he did not ask the appellant where he slept before he was brought to him. The learned Senior State Attorney wondered why the extra judicial statement is silent on this point. To drive the point home, he referred to decisions of this Court holding that the guideline should be strictly complied with. In Ally Ramadhani v. Republic [2024] TZCA 962, the Court held that the Justice of Peace must ask the appellant where he slept before coming to him. If that is not done, then the extra judicial statement becomes invalid. That was also emphasized in Manoja Masatu and Another v. Republic [2024] TZCA 409. He concluded on this point with a prayer that the extra judicial statement be expunged. In the end, Mr. Kagirwa invited the Court to allow the appeal and quash the conviction, set aside the sentence and free the appellant.

In rejoinder, Mr. Mahemba appreciated the learned Senior State Attorney's submission supporting the appeal. He eventually urged the Court to allow the appeal and set the appellant free. In determining the appeal, a decisive point is whether the prosecution proved the case beyond reasonable doubt. It is elementary that an appeal to this Court lies on points of law only. However, this being the second appellate court it has mandate to re-evaluate the evidence on record whenever there is a misapprehension of evidence or rather misdirection or non-directions on the evidence by the first appellate court and draw its own conclusions. See Director of Public Prosecutions v. Jaffari Mfaume Kawawa [1981] T.L.R 149. As prelude, a conviction in any criminal trial requires proof beyond reasonable doubt. Despite being convicted and sentenced by the trial court and upheld by the High Court, the appellant continued protesting that the prosecution failed to prove the case beyond reasonable doubt. Having scrutinized the grounds of appeal, the record of appeal and heard the parties' submissions, we are now enjoined to determine whether the case was proved beyond reasonable. We shall thus re evaluate the evidence on record to see if there was any misapprehension of non-directions on the evidence by the first appellate court as held in 10

Eric Zablon v. Offgrid Electrical Tanzania Ltd [2025] TZCA 135. In doing so we will be guided by the following: a failure to list PW3 in the list of prosecution witnesses during preliminary hearing; chain of custody of a pistol, and three rounds of ammunition (exhibit P2); failure to call material witnesses; and that the extra judicial statement (exhibit P3) was recorded contrary to the Chief Justice's Guidelines on recording of extra judicial statements by the Justices of Peace, (the Chief Justice's Guideline). One, failure to include PW3 in the list of prosecution witnesses during preliminary hearing. The parties were divided in their views on the implication of the absence of a witness's name in the list of prosecution witnesses during preliminary hearing. As conspicuously seen from the record, PW3 was not listed during preliminary hearing. While Mr. Mahemba maintained that PW3 non-inclusion of PW3 in the list is fatal, Mr. Kagirwa had a different perspective. But we agree with the latter that the Court has held in Yusuph Nchira (supra) regarding a witness list in the subordinate courts, that the Accelerated Trial Rules applicable in the subordinate courts GN No. 192 of 1988 read together with section 192(3) of the CPA do not mandate naming all witnesses during preliminary hearing. Hence, absence of a name of a witness is not fatal where an accused can cross-examine. See also the cases of D.P.P. v. Lengai Ole li

Sabaya & Others [2023] TZCA 17853; Boay s/o Bura v. Republic [2024] TZCA 717. As the law stands, therefore, the testimony of PW3 despite not being listed during preliminary hearing is not fatal in as far as the Accelerated Trial Rules are concerned. We thus dismiss this complaint. Two, an allegation of a broken chain of custody was also brought to our attention. In his testimony, PW1 simply said that the pistol, one magazine with three rounds of ammunition and a plastic bag (exhibit P2 collectively) were taken to Tarime Police Station. He failed to tell the court who kept exhibit P2. Nor did PW1 bother to explain how the chain of custody was maintained from seizure of the exhibit P2 to its presentation in court. See Paul Maduka and Others v. Republic [2009] TZCA 69. Therefore, we are in accord with Mr. Kagirwa that the chain of custody was broken, which damaged the prosecution case. It is our view that where a chain of custody is broken a prosecution case is in shambles. Three, failure to call material witnesses is a controversy both parties admit. The material witnesses are Mr. Emmanuel Paul and the exhibit keeper whose name was not mentioned. PW1 testified that Emmanuel Paul was a witness when the appellant admitted surrendering the pistol and he was present when they did a search on his farm. PW1 12

did not mention the name of exhibits keeper who in our settled view should have been called to testify at the trial court. We reiterate the principle that failure to bring a material witness to testify without explanation is inexcusable and entitles the court to draw adverse inference as we held in the case of Juma Bakari@Nyumbe v. Republic [2025] TZCA 531. Four and lastly, the appellant's extra judicial statement (exhibit P3) was recorded contrary to the Chief Justice's Guidelines on recording of extra judicial statements by the Justices of Peace. In this case, the evidence that facilitated appellant's conviction is his own confession before the Justice of Peace and his oral confession which led to the discovery of the firearm and ammunition. We also held in Mathias Bundala v. Republic [2007] TZCA 16; and in Director of Public Prosecutions v. Fadhili Chengula, [2023] TZCA 17525 that, a confession by an accused person under police restraint leading to a discovery of a relevant fact is admissible under the law. In most cases proof beyond reasonable doubt is inferred from the accused, leading to discovery. Further in Tumaini Daud Ikera v. The Republic, Criminal Appeal No. 158 of 2009 (unreported), it was held that oral confession of guilty is admissible in court. 13

In the case at hand, the appellant contended that the Justice of Peace (PW4) recorded the extra-judiciai statement (exhibit P3) contrary to the Chief Justice's Guideline. That confession was crucial as shown in the testimony of PW1 that it led to discovery of the pistol which is acceptable in law as held in Mathias Bundala (supra); and Director of Public Prosecutions (supra). It is also not uncommon that proof beyond reasonable doubt may be inferred from the accused's confession leading to discovery. See Tumaini Daud Ikera (supra). In the present case, the appellant's confession which led to discovery of exhibit P2, would have proved the case beyond reasonable doubt, however, the extra judicial statement (exhibit P3) was taken contrary to the Chief Justice's Guideline in that the appellant was not asked where he slept before coming to the Justice of Peace. This is a mandatory requirement as held in several of our decisions including Japhet Thadei Msigwa v. Republic [2011] TZCA 108; and Jackson Protaz v. Republic [2021] TZCA 705. We further held in Japhet Thadei Msigwa (supra); and in Peter Charles Makupila @Askofu v. Republic [2021] TZCA 197, that the Chief Justice's Guideline must be followed to the letter. Failure to do so renders the extra judicial statement fatally defective as it is regarded to have been taken involuntarily and 14

hence liable to be expunged. Considering the foregoing position of the law, we are constrained to expunge exhibit P3 from the record. The above shortfalls in the prosecution evidence should have led the courts below to find the case not proved beyond reasonable doubt. For the reasons stated, we find the appeal to be meritorious. We, accordingly, allow it and order the appellant's immediate release from custody unless held therein 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 Appellant 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.