Shadrack Chacha @ Mwita vs Republic (Criminal Appeal No. 543 of 2022) [2025] TZCA 1073 (13 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: KEREFU, 3.A.. MWAMPASHI, J.A. And AGATHO. J J U CRIMINAL APPEAL NO. 543 OF 2022 SHADRACK CHACHA @ MWITA................................................APPELLANT VERSUS THE REPUBLIC.................................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Musoma) fMbaawa, 3 / 1 dated the 14th day of September, 2022 in Criminal Appeal No. 154 of 2021 JUDGMENT OF THE COURT 6* & 13th October, 2025 MWAMPASHI, J.A.: In the District Court of Serengeti at Mugumu (the trial court), Shadrack Chacha @ Mwita, the appellant herein, was charged with three counts to w/tf unlawful entry in the National Park contrary to sections 21 (1) (a), (2) and 29 (1) of the National Parks Act, Cap. 282 ("the NPA"), unlawful possession of weapons in the National Park contrary to section 24 (l)(b) and (2) of the NPA and lastly, 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 i

the Economic and Organized Crimes Control Act, [Cap. 200 R.E. 2019] ("the EOCCA"). According to the particulars of the offences, on 15.08.2020, the appellant allegedly entered in Serengeti National Park at Korongo la Mchanga area within the District of Serengeti in Mara Region, without the permission of the Director thereof, previously sought and granted. That was in regard to the 1s t count. On the 2n d count, it was alleged that, on the same date and at the same place, as stated above, the appellant was found in unlawful possession of weapon to wit, one panga without a permit-and failed to satisfy an authorised officer that the said 733 / 7 ^ was intended-,for purposes other than hunting, killing, wounding and.capturirig wild animals. Lastly, on the 3rd count, it was the prosecution allegation that; ,on the same date and place, the appellant was found in unlawful possession of Government trophy to wit, three dried pieces of wildebeest meat valued at TZS. 1,495,000.00, the property of the United Republic of Tanzania. the appellant, having pleaded not guilty to the charge, the trial ensued and, in a bid to prove its case against the appellant, the prosecution relied on the evidence from four witnesses namely; Ezekiel Kulwa (PWl), Wilson Adam (PW2), Wilbroad Vicent (PW3) arid G. 3694 D/Cpl. .Shaban (PW4). A total of four real and documentary exhibits

namely; Certificate of Seizure, one panga, Trophy Evaluation Certificate and an Inventory Form, were also tendered by the prosecution and admitted in evidence as exhibits PI, P2, P3 and P4 respectively. For the defence, the appellant was a sole witness. Briefly, the facts of the case, as gathered from the record of appeal, may be summarised as follows; On 15.08.2020, at around 08:00 hours, five park rangers from the Serengeti National Park including PW1 and PW2, were in their normal patrol within the Serengeti National Park when they met and put under arrest the appellant at Korongo la Mchanga area which is allegedly within the Serengeti National Park. According to PW1 and PW2, the appellant was in possession of a panga and three dry pieces of the wildebeest meat without a permit. Having seized the panga and the said pieces of meat, a certificate of seizure, which was later during the trial, tendered and admitted in evidence as exhibit PI, was prepared to that/effect. Thereafter, the appellant and the said items allegedly found in the appellant's possession were handed over to Mugumu Police Station. During the trial, the panga was also tendered and admitted in evidence as exhibit P2. ? PW4y G. 3694 D/Cpl. Shabani, is the one to whom the appellant, exhibit P2 and the three dry pieces of the wildebeest meat were handed over by PW1 at Mugumu Police Station. According to him, after receiving

the said items allegedly found in the appellant's possession, he summoned PW3 who came at the police station to identify and value the three dry pieces of the meat. PW3's testimony was to the effect that, after getting at the police station, he identified and confirmed that the said three dry pieces of the meat were of wildebeest valued at TZS. 1,495,000.00. To that effect, a Trophy Valuation Certificate which was later, during the trial, tendered and admitted in evidence as exhibit P3, was prepared by PW3. It is also on record that, the three pieces of the meat having been identified and valued by PW3, an Inventory Form, which was'tendered in evidence as exhibit P4, was prepared by PW4 who took it together with the three dry pieces of the meat, to a magistrate where the disposal order was accordingly issued. In his defence, the appellant denied to have been found within the national park let alone to have been in possession of the1 pahga 6rr the three dry pieces of the meat of wildebeest as alleged by the prosecution witnesses. He claimed that, he was arrested outside the national park on 14.08.2010 at around 09:00 while cutting grasses. He further claimed that, it was after he had failed to name persons who were, allegedly grazing cattle in the national park when the park rangers arjested and took him to their camp where he spent the night. On the next day, the 4

dry pieces of the meat were planted on him before he was sent to the police station. After a full trial, the appellant was found guilty of all three counts and was duly convicted. For the 1s t and 2n d counts, he was sentenced to serve a period of two years in prison on each count and for the 3r d count, he earned an imprisonment term of twenty years. The sentences were ordered to run concurrently. On appeal to the High Court, while the conviction on the 1s t and 2n d counts was quashed and the sentences set aside, the conviction and sentence on the 3r d count were upheld. Aggrieved, the appellant preferred the instant second appeal. According to the memorandum of appeal lodged on 13.12.2022, the appeal is predicated on four grounds. However, for reasons which will be apparent shortly, we do not find it necessary to reproduced the said grounds.in this judgment. When the appeal was called on for hearing, the appellant who was linked to the Court via video conference facilities from the High Court of Tanzania at Mbeya and who had no legal representation, appeared in person. In presence for the respondent Republic, were Ms. Wampumbulya Shani/learned Senior State Attorney assisted by Ms, Beatrice Timothy Mgumba, learned State Attorney. 5

Ms. Mgumba addressed us on behalf of the respondent. At the outset, she made it clear that, the respondent was supporting the appeal not on the grounds raised by the appellant but on a different technical ground, in that, the trial court had no jurisdiction to entertain the case . Expounding the above legal issue, Ms. Mgumba submitted that, since the case against the appellant involved an economic offence, that is, the 3r d count on unlawful possession of Government trophy, for the trial court to have been clothed with jurisdiction to try the case, valid consent and certificate conferring jurisdiction on the trial court, ought to have been duly issued. She referred us to pages 4 and 5 of the record of appeal, and argued that, the consent for the prosecution of the .case and the certificate purporting to confer jurisdiction to the trial court appearing there on, are invalid for not citing the provision of the law. under which the 3r d count which is on an economic offence, was charged. Citing the case of Peter Kongori Maliwa & Others v. Republic [2023] TZCA 17350, Ms. Mgumba argued that, for the omission pointed out above, the consent and the certificate were invalid and they did not legally confer jurisdiction to the trial court. She added that, the invalid consent and certificate rendered the lower courts' proceedings a nullity. Based on the above, Ms. Mgumba implored upon us to invoke our revisional powers bestowed on the Court under section 6 (2) of the

Appellate Jurisdiction Act, Cap. 141 ("the AJA"), nullify the proceedings of the two lower courts, quash the resultants judgments and set aside the sentence imposed on the appellant. As on the way forward, it was Ms. Mgumba's position that, the case is not fit for retrial. He argued that, there are many gaps in the prosecution evidence which, if a retrial order is made, the prosecution will grab the opportunity to fill them to the prejudice of the appellant. One of the gaps pointed out by Mr. Mgumba, was that, the chain of custody in respect of the panga was not established. She thus, urged us not to order a retrial of the case but to set the appellant free. His appeal having been supported by the respondent, the appellant had nothing to tell the Court rather than to pray for his immediate release from the prison. The issue whether the trial court had jurisdiction to entertain the appellants' case depends on the determination of the issue on the validity not only of the consent for the prosecution of the case against the appellant but also the validity of the certificate conferring jurisdiction on the trial court to try the case. In the instant case, it is common ground that, the 3r d count, on the appellant allegedly being found in unlawful possession of Government 7

trophy, is an economic offence. According to section 3 (1) of the EOCCA, the jurisdiction to try economic offences is vested in the Corruption and Economic Crimes Division of the High Court. However, under section 12 (3) and (4) of the EOCCA, a subordinate court can try economic offences but only if, the Director of Public Prosecutions (the D.P.P) or any State Attorney duly authorised by him, issues a certificate directing that a certain economic offence be tried by a subordinate court. The law is also clear that, there should be no trial of an economic offence if .a consent has not been issued by the D.P.P. or the State Attorney duly authorised by him 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 triai in respect o f an economic offence may be commenced under this Act save with the consent o f the Director o f Pubiic Prosecutions . (2) The Director o f Pubiic Prosecutions shaii establish and maintain a system whereby the process o fseeking and obtaining ofhis consent for prosecutions may be expedited and made for that purpose by notice published in the Gazette specify economic offences the prosecutions o f which shaii require the consent o f the Directo o f Pubiic Prosecutions in person and those the power of 8

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 general or special instructions It is also a trite position of the law that, the consent for the prosecution of an economic offence and the certificate conferring jurisdiction on the subordinate court to try such an offence, should cite the specific provision of the law creating the economic offence charged. Settled, is also the position that, failure to cite such a provision of the law creating an economic offence charged in the consent and certificate, renders the consent and 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 (supra). In the instant appeal, as rightly submitted by Ms. Mgumba, the consent appearing at page 4 of the record of appeal as well as the certificate purporting to confer jurisdiction on the trial court to try the case, reflected at page 5 of the record of appeal, did not cite section 86 (1) and (2) (c) (iii) of the WCA which are the provisions creating the offence on the 3r dcount the appellant was charged with. As earlier alluded to, the omission is fatal rendering the consent and the certificate invalid. Consequently, the trial court which tried the case on the basis of the

invalid consent and certificate, was not clothed with jurisdiction to try the case. For the above pointed out reasons, in terms of section 6 (2) of the AJA, we nullify the proceedings of the trial court as well as that of the High Court as they stemmed from a nullity, quash the resultants judgments and set aside the sentence imposed on the appellant. On the way forward, ordinarily, after nullifying the proceedings of the two lower courts and having quashed the resultants judgments, a retrial would have been ordered. However, as rightly argued by Ms. Mgumba, this case is not fit for retrial. Under the circumstances of this case, an order of retrial will not be in the interest of justice. Ordering a retrial will offend the principle the Court stated in the case of Fatehali Manji v. Republic [1966] E.A. 343, that a retrial cannot be ordered for purposes of enabling the prosecution to fill in gaps in its case to the prejudice of an accused person. Apart from the ailment regarding the chain of custody as pointed out by Ms. Mgumba, the fact that the appellant was acquitted on the 1s t and 2n d count of which its particulars were not independent from the particulars of the 3rdcount, makes it certain that if a retrial is ordered, proving the 3r d count will not be possible without amending the charge or presenting different evidence to the prejudice of the appellant. It is for the above reasons that we refrain from making an order for retrial' 10

In the event and for the above given reasons, we order the immediate release of the appellant from prison unless he is held therein 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 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. C. M. MAGESA ij DEPUTY REGISTRAR COURT OF APPEAL li