Peter Karori Nyandoro vs Republic (Criminal Appeal No. 548 of 2022) [2025] TZCA 1072 (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. 548 OF 2022 PETER KARORI NYANDORO........................................................ APPELLANT VERSUS THE REPUBLIC........................................................................ RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Musoma) (Mbaowa. J.) dated the 11th day of May, 2022 in Criminal Appeal No. 140 of 2021 JUDGMENT OF THE COURT 8th & 13th October, 2025 MWAMPASHI. J.A.: Before the District Court of Serengeti at Mugumu in Economic Case No. 120 of 2020, Peter Karori Nyandoro, the appellant herein, was jointly charged with Juma s/o Joseph Magange, Saimon s/o Petro Mairo @ Babu and Mahege s/o Witare @ Nyamakori (the co-accused persons), who are however, not parties to this appeal. They were charged with five counts under the Wildlife Conservation Act No. 5 of 2009 ("the WCA") and the Economic and Organized Crimes Control Act, [Cap. 200 R.E. 2019] ("the EOCCA"). On the 1st count, in which the appellant and the co-accused persons, were charged with unlawful entry into the Game Reserve contrary to

sections 15 (1) and (2) of the WCA, it was alleged that, on 19.10.2020, without a permission of the Director, previously sought and obtained, the appellant and the co-accused persons, entered into the Ikongoro Game Reserve at Bonde la Manchira area within the District of Serengeti in Mara Region. The 2n dcount was on the offence of unlawful possession of weapons in the Game Reserve contrary to section 17 (1) and (2) of the WCA read together with paragraph 14 of the First Schedule to and sections 57 (1) \ and 60 (2) of the EOCCA, On this count, it was alleged that, on the same date and at the same place, as stated above, the appellant and the co accused persons, were found in unlawful possession of weapons to wit, one panga and two knives without a written permit of the Director previously sought and obtained. On the 3rd, 4th and the 5th counts in which the appellant and the-co accused persons were charged with unlawful possession of Government trophies contrary to section 86 (1) and (2) (b) (c) (iii) of 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 appellant and the-co accused persons were found in unlawful possession of Government trophy to wit, one fresh head, one fresh skin and two pieces of fresh meat, all of an eland valued atTZS. 3,910,000.00, 2

three carcasses of warthog valued at TZS. 3,105,000.00 and fourteen eggs of an ostrich valued at TZS. 48,300,000.00, all the property of the United Republic of Tanzania. The brief facts leading to the arraignment and the ultimate conviction of the appellant, as obtained from the record of appeal, are to the following effect; According to Pinetal Mafyele (PW1) and Hamis Ncheye (PW2) who are park rangers at Ikongoro Grumeti Game Reserve, on 19.10.2020, they were on patrol within the game reserve. At around 12:00 noon, they were at Bonde la Mto Manchira within the game reserve where they saw human footprints on the ground. They followed the footprints which led them to where the appellant and the-co accused persons were. They found the appellant and the co-accused persons sitting under a certain tree. It was further testified by PW1 and PW2 that, upon arresting and searching the appellant and the co-accused persons, who had no permit to enter in the game reserve or possess Government trophies, they found them in possession of one panga, two knives, one fresh head, a fresh skin and two pieces of fresh meat, all of an eland. In their possession, were also three carcasses of warthog and 14 eggs of an ostrich. To that effect, a certificate of seizure was prepared and was duly signed by PW1, PW2, the appellant and the co-accused persons. While the said certificate of seizure, was later, during the trial, tendered and

admitted in evidence as exhibit PI, the panga and the two knives were collectively admitted in evidence as exhibit P2. It was also the testimony of PW1 and PW2 that, the exhibits, the appellant and the co accused persons, were handed over to Mugumu Police Station. At Mugumu Police Station, the case was handled by H.3802 D/C Yunus (PW4) who, having received one fresh head, a fresh skin and two fresh pieces of meat together with three carcasses and 14 eggs, he summoned Wilbroad Vicent (PW3), a wildlife officer, who identified the fresh head, fresh skin and two fresh pieces of meat to be of an eland valued at TZS. 3,910,000.00. He also identified the three carcasses to be of warthog valued at TZS. 3,105,000.00 and the 14 eggs to be of an ostrich with a total value of TZS. 48,300,000.00. To that effect, PW3 prepared a Trophy Evaluation Certificate which was later, during the trial, tendered and admitted in evidence as exhibit P3. After the trophies had been identified and valued by PW3, PW4 prepared an Inventory Form and took the appellant and the-co accused persons together with the trophies, to a magistrate where an order for the disposal of the trophies was issued. At the trial, the Inventory Form was tendered and admitted in evidence as exhibit P4. In his sworn defence, the appellant denied to have been found in the game reserve or to have been found in possession of any weapon or

Government trophy. He stated that, the game scouts who were on patrol, arrested him with one of the co-accused persons on 19.10.2020 at around 08:00am while washing clothes in Manchira River. Based on the evidence of the prosecution witnesses and on the exhibits tendered, the trial court found the appellant and the co-accused persons guilty of all five counts. The conviction having been duly entered, while two of the co-accused persons were conditionally discharged, the appellant and one of the co-accused persons, were sentenced to serve a period of one year in prison on the 1st and 2n d counts and twenty years' imprisonment on the 3rd, 4th and 5th counts. The sentences were ordered to run concurrently. Aggrieved, the appellant appealed to the High Court which partly allowed the appeal. The conviction on the 1st and 2n d counts was quashed and the respective sentences were set aside on accont that, the prosecution had failed to establish beyond reasonable doubt that, the appellant was really found within the Ikorongo Grumeti Game Reserve. The trial court's conviction and sentences on the 3rd , 4th and 5th counts, were upheld by the High Court hence, the instant second appeal. At the hearing of the appeal, the appellant was present in person and had the services of Mr. Cosmas Tuthuru, learned advocate. The 5

respondent Republic was represented by Mr. Nico Malekela, learned State Attorney. After Mr. Malekela had, at the outset, expressed the respondent's stance that he was supporting the appeal on the 1st ground raised in the substantive memorandum of appeal lodged by the appellant on 30.06.2023, Mr. Tuthuru abandoned the supplementary memorandum of appeal which was lodged on 22.09.2025. He also dropped all grounds of appeal in the substantive memorandum of appeal except for the 1st ground to wit, The High Court failed to notice that the tria i court tried an economic offence charged against the appeiiant without the consent from the Director o f Pubiic Prosecutions hence it lacked jurisdiction . In his focused submission on the above pointed out sole ground of appeal, Mr. Tuthuru argued that there was no consent by the Director of Public Prosecutions (the DPP) for the prosecutions of economic offences on the 3rd , 4th and 5th counts. He further contended that, though, at page 6 of the record of appeal, there in an indication that, the consent and the certificate conferring jurisdiction to the trial court to try the case, were filed, it is only the certificate which was really filed and which is included in the record of appeal. Mr. Tuthuru insisted that, since there was no consent by the DPP, the trial court had no jurisdiction to try the case rendering its proceedings and the resultant judgment a nullity. He thus 6

urged us to invoke our revisional powers under section 6 (2) of the Appellate Jurisdiction Act, Cap 141 ("the ADA"), nullify the two lower courts' proceedings, quash the resultant judgments and set aside the sentences imposed on the appellant. On what should be the way forward, the position by Mr. Tuthuru was that, there should be no retrial. He argued that, the evidence in support of the case is insufficient in that, if retrial of the case is ordered, the prosecution will grab that opportunity to fill in the gaps to the prejudice of the appellant. Mr. Tuthuru pointed out that the disposal order was made without the involvement of the prosecution and not in adherence to the procedure as stated by the Court in Buluka Leken Ole Ndidai & Another v. Republic [2024] TZCA 116. He contended that, if the Inventory Form (exhibit P4) is expunged from the record, there will be no evidence to support the 3rd , 4th and 5th counts. Mr. Tuthuru further argued that, the trial court applied a double standard when it sentenced the appellant to 20 years' imprisonment while two of the co-accused persons were conditionally discharged. On this, he referred us to the decision of the Court in Haika d/o Chesan Mgao v. Republic [2024] TZCA 6. He thus, prayed for the appeal to be allowed. Mr. Malekela, who, as alluded to earlier, supported the appeal, subscribed to the submissions made by his learned friend that, for the

absence of the consent by the DPP, the trial court was not clothed with jurisdiction to try the case. He pointed out that, the 3rd , 4th and 5th counts were on economic offences of which its prosecution required the consent by the DPP. It was also submitted by Mr. Malekela that, even the certificate appearing at page 5 of the record of appeal, purporting to confer jurisdiction to the trial court, was invalid for being issued by,the State Attorney In-charge of Serengeti District, under both section 12 (3) and (4) of the EOCCA instead of section 12 (4) only. He added that, the certificate did even not cite the provisions under which the economic offences on the 3rd , 4th and 5th counts, were preferred against the appellant. Placing reliance on the decision of the Court in the case of Chacha Chiwa Marungu v. Republic [2023] TZCA17311, Mr. Malekela contended that, the trial court had no jurisdiction to try the case and further that, the two lower courts' proceedings and judgments are a nullity liable for being nullified under section 6 (2) of the AJA. On the way forward, Mr. Malekela agreed with his learned friend that, the case is not fit for a retrial. He thus, urged the Court to allow the appeal and order the release of the appellant from prison. Having heard the concurrent submissions from the counsel for the i parties who are in agreement that, the trial court lacked jurisdiction to try the case, our task is simply to examine the record of appeal, revisit the

law applicable and satisfy ourselves if, in conducting the trial, the trial court had jurisdiction. The fact that the 3rd , 4th and 5th counts, on unlawful possession of Government trophies, with which the appellant was charged, are economic offences, is common ground. Further, it is a trite position of the law that, there should be no trial of an economic offence unless a consent has been issued by the DPP or the State Attorney duly authorised by the DPP, in terms of section 26 (1) and (2) of the EOCCA, under which it is provided that: "26 (1) Subject to the provisions o f this section, no tria i in respect o f an economic offence may be commenced under this A ct save with the consent o f the Director o f Pubiic Prosecutions . (2) The Director o f Pubiic Prosecutions shaii estabiish and maintain a system whereby the process o fseeking and obtaining o f his consent for prosecutions may be expedited and made for that purpose by notice pubiished in the Gazette specify economic offences the prosecutions o f which shaii require the consent o f the Directo o f Public Prosecutions in person and those the power o f consenting to the prosecution o f which may be exercised by such officer or officers subordinate to

him as he may specify acting in accordance with his generai or special instructions The above being the position of the law, the following question is whether the trial in the instant case, had the DPP's consent as required under section 26 (1) and (2) of the EOCCA. The answer to the question is in the negative. As rightly argued by the learned counsel for the parties, although, it is on record, at page 6 of the record of appeal, that, the prosecution prayed for leave to file consent for the prosecution of the case and the certificate conferring jurisdiction to the trial court and though, the prayer was granted, it was only the certificate which was filed and which is in the record. The consent which was allegedly filed is not part of the record of appeal and as conceded by Ms. Malekela, it was never filed and the trial was thus, conducted without the consent of the DPP in contravention of section 26 (1) of the EOCCA. It is settled that, lack of the DPP's consent in trials involving economic offences, renders the proceedings and the resultant judgment a nullity deserving the same to be nullified and quashed. See- Said Adam Hija v. Republic [2024] TZCA 761. Besides the above pointed out ailment regarding lack of the DPP's consent, we also agree with Mr. Malekela that, even the certificate purporting to confer jurisdiction to the trial court appearing at page 5 of 10

the record of appeal, is invalid. The certificate is invalid not only for being issued by the State Attorney In-charge of the District of Serengeti under both sections 12 (3) and (4) of the EOCCA instead of section 12 (4) only but also for the failure to cite therein the specific provisions under which the economic offences on the 3rd, 4th and 5th counts were preferred against the appellant. Failure to cite the said provisions of the law creating an economic offence charged in the certificate, renders the certificate invalid and vitiates the trial court's proceedings. See- Rhobi Marwa Mgare & 2 Others v. Republic [2009] TZCA 222, Dilipkumar Maganbai Patel v. Republic [2019] TZCA 477 and Peter Kongori Maliwa & Others v. Republic [2023] TZCA 17350. On the basis of the foregoing reasons, we agree with the learned counsel for the parties that, there was no consent by the DPP for the prosecution of the case against the appellant and the certificate purporting to confer jurisdiction to the trial court was invalid. Thus, the trial court acted without jurisdiction rendering not only its proceedings and judgment but also the proceedings and the judgment of the High Court, a nullity. Consequently, acting under section 6 (2) of AJA, we hereby nullify the two lower courts' proceedings, quash the resultant judgments and set aside the sentences imposed on the appellant. ii

On whether there should be an order for a retrial or not, the principle which guides courts on that issue, was stated in Fatehali Manji v. Republic [1966] E.A. 342 by the erstwhile East African Court of Appeal, that: "In general, a retrial may be ordered only when the original tria l was illegal or defective; it w ill not be ordered where the conviction is set aside because o f insufficiency o f evidence or fo r enabling the prosecution to fill in gaps in its evidence a t the first trial...each case m ust depend on its own facts and an order for retrial should only be made where the interest o fjustice require it" Guided by the above stated principle and having considered the circumstances of the case at hand, we agree with the counsel for the parties that, an order for a retrial will not be in the interest of justice. If a retrial is ordered, definitely, the prosecution will not let that opportunity pass without them filling gaps in their insufficient evidence to the prejudice of the appellant. Apart from the ailment pointed out by Mr. Tuthuru, regarding the order for the disposal of the trophies and the Inventory Form (exhibit P4), the offences on the 1st and 2n d counts of which the particulars and evidence interrelate to those in regard to the offences on the 3rd , 4th and 5th counts, have already been found by the 12

High Court not proved due to insufficiency of evidence. The appellant's acquittal on the 1st and 2n d counts for insufficiency of prosecution evidence has effects on the maintainability of the offences on the 3rd, 4th and 5th counts. In event, for the aforegoing reasons, we find that, an order for a retrial is, under the circumstances of this case, not justifiable and we thus, refrain from making such an order. Consequently, we allow the appeal and order that, the appellant be set free unless he is being held for any other lawful cause. DATED at MUSOMA this 13th day of October, 2025. Judgment delivered this 13th day of October, 2025 in the presence of Mr. Cosmas Tuthuru, learned counsel for the Appellant 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. R. J. KEREFU JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL