Mruli Senso vs Republic (Criminal Appeal No. 133B of 2022) [2025] TZCA 1063 (10 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA ( CORAM: KOROSSO. 3.A.. KENTE. J.A.. And KHAMIS J.A.) CRIMINAL APPEAL NO. 133B OF 2022 MRULI SENSO ............................................................ APPELLANT VERSUS THE REPUBLIC .........................................................RESPONDENT (Appeal from the decision of the of the High Court of Tanzania at Mwanza) (Sumave. SRM Ext. 3 .1 Dated the 29th day of October, 2021 in RM Criminal Appeal No. 26 of 2021 JUDGMENT OF THE COURT 30t hSeptember & 10th October, 2025 KOROSSO. JA.: The appellant is challenging the decision of the Resident Magistrate's Court of Mwanza at Mwanza (Sumaye, SRM ExtJ) which upheld the appellant's conviction and thirty (30) years imprisonment sentence imposed by the District Court of Nyamagana sitting at Mwanza in Criminal Case No. 36 of 2019 (the trial court). In the trial court, the appellant had been charged of Trafficking in Narcotic drugs contrary to )

section 15A (1) and (2)(c) of the Drugs Control and Enforcement Act, No. 5 of 2015 as amended by Act No. 15 of 2017 (the DCEA). The brief facts of the case gathered from the record of appeal are that, on 16/01/2019 at Nyamagana area within Nyamagana District, in the city and region of Mwanza, the appellant was found in unlawful possession of eleven rolls (kete 11) weighing 9.0 grams of Narcotic Drugs known as tetrahydrocannabinol (THC) commonly as bhang. When the charge was read over to the appellant (then the accused), he denied the charge. He was then granted bail. After plea taking and the conduct of Preliminary Hearing, the appellant was present in court on 8/5/2019, 24/6/2019 and 17/7/2019. Thereafter, he failed to appear for subsequent two hearing sessions. The trial court accepted his reasons for non-appearance and thus did not cancel his bail. On 11/9/2019, when the prosecution side substituted the charge, the appellant was present in court, he was called upon to plead and denied the amended charge. The trial court set the next hearing for 01/10/2019, when despite the appellant's presence the hearing failed to proceed due to lack of prosecution witnesses, leading to an adjournment to 16/10/2019 and then 12/11/2019. The appellant entered appearance on both dates.

Adjournment of trial hearing continued, and on 26/11/2019 and 11/12.2019, the appellant failed to appear for hearing. On 13/12/2019, upon his absence, the prosecution prayed for the hearing of the trial to proceed in the absence of the accused under section 226(1) of the Criminal Procedure Act, Cap 20 (the CPA). The trial court granted the said prayer. The prosecution then commenced its case, in the absence of the appellant. Three witnesses testified for the prosecution side: Tupeligwe R. Mwaisaka (PW1), F. 5269 D/Cpl Afred (PW2) and H578 D/C Mtendelwa (PW3) together with five exhibits to prove their case. Judgment was delivered on 17/2/2020 in the absence of the appellant who was still at large. The record of appeal shows that on 8/4/2020, the court was convened upon the arrest of the appellant, and he was thus present in court. The appellant was sentenced to thirty years imprisonment after the court was not satisfied with the reasons advanced by the appellant for absconding bail and failure to appear during the trial. Aggrieved with the decision of the trial court, his appeal to the High Court was unsuccessful, hence the instant appeal. He filed two

memoranda; the memorandum of appeal filed on 4/4/2022 and the supplementary memorandum of appeal filed on 30/9/2025. In the memorandum of appeal, the appellant faults the first appellate court premised on four grounds, which paraphrased, give rise to following complaints: One, disregarding the trial court's non-compliance with section 231(l)(a) and (b) of the CPA upon failure to explain to the appellant the substance of the charge. Two, discounting the trial court's contravention of section 135(f) of the CPA, since the charge did not describe the time of commission of offence. Three, conviction of the appellant notwithstanding failure of the prosecution to prove its case beyond reasonable doubt, and four, impropriety of the conviction having contravened section 312(2) of the CPA. The supplementary grounds of appeal essentially allude to the following five grievances: One, non-compliance with section 234 of the CPA resulting in denying the appellant the right to be heard upon the prosecution prayer to substitute the charge. Two, impropriety in admitting exhibit P5 as it was not read out aloud after being admitted and non-compliance of PGO 286. Three, impropriety in admitting exhibit P3, the certificate of seizure and relying on it. Four, Impropriety

in admitting the cautioned statement (exhibit P4) having been unlawfully procured. Five, failure to record that the prosecution case was closed. On the date scheduled for hearing the appeal, the appellant appeared in person, without representation. The respondent Republic was represented by Ms. Mwanahawa Changale, learned Senior State Attorney assisted by Mr. Japhet Ngusa and Miss Martha Mtiti, learned State Attorneys. The appellant had nothing substantive to submit when afforded the opportunity to explain his grounds of appeal apart from adopting them, he urged us to allow the appeal and set him free. In addition, he prayed that the respondent Republic respond to the grounds of appeal first, and he be granted leave to rejoin thereafter. On his part, the learned Senior State Attorney intimated that, the appeal was not resisted for the reason that the prosecution failed to prove the offence charged beyond reasonable doubt. She highlighted two gaps on the side of the prosecution case: First, the absence of an independent witness during the seizure of the narcotic drugs and to

testify at the trial. She queried the fact that although from the record it is revealed that there was an independent witness during the seizure as found in the certificate of seizure and testimony of PW2, the said witness was not called as a witness and no plausible reasons were provided for failure to call her. She argued that not calling the said witness to testify, in cases such as the one the appellant faced, involving narcotic drugs, the omission is fatal. To cement her stance, she cited Fumu Ali Makame and another v. the Director of Public Prosecutions (Criminal Appeal No. 686 of 2023) [2024] TZCA 303 (6 May 2024) TANZLII and Director of Public Prosecutions v. Mussa Hatibu Sembe, Criminal Appeal No.. 130 of 2021 (unreported). The second reason was that the evidence related to the chain of custody of the seized narcotic drugs is not intact. The learned Senior State Attorney stated that there are obvious gaps in the chain of evidence from the time of seizure of the narcotic drugs allegedly from the appellant to when they were sent to the Government Chemist PW1 for analysis, up to the time of tendering them in court. She contended that though the seized narcotic drugs were admitted as exhibit P2, there is lack of information/details on their handling, custody and handover

for those who handled them. According to Miss Changale, clarity is missing on whether what was sent to PW1 is the same exhibit which was seized from the appellant and admitted in court as exhibit P2. In those circumstances, she contended, it was a misnomer for the trial and first appellate court to rely on the said exhibit and the form from DCEA (exhibit P3) to convict the appellant for the offence charged. To reinforce her argument, the learned Senior State Attorney then referred us the case of Director of Public Prosecutions v. Musssa Hatibu Sembe (supra). On that note she prayed that the appeal be allowed. The appellant's rejoinder was brief largely, expressing appreciation and support for the position advanced by the learned Senior State Attorney and implored us to allow the appeal and set him at liberty. Having carefully considered the grounds of appeal, submissions by the appellant and the learned Senior State Attorney and duly revisited the record of appeal, we firmly believe that the underlying issue is whether the prosecution proved its case to the standard required by law. As we commence our deliberation and determination

of the appeal, we think it is pertinent to state that, as the second appellate court, it is expected that we will not interfere with concurrent findings of the two courts below, except in cases where we discern misdirection or misapprehension of evidence or violation of some principles of law or procedure, or have occasioned a miscarriage of justice as reiterated by this Cout in numerous cases including Martin Kikombe v. Emmanuel Kunyumba, Civil Appeal No. 201 of 2017 and Jafari Mohamed v. Republic, Criminal Appeal No. 112 of 2006 (both unreported). The 1s t ground in the memorandum of appeal challenges the trial and first appellate courts for contravention of section 231(l)(a) and (b) of the CPA in that the substance of the charge was not explained to the appellant. The learned Senior State Attorney did not respond to this ground and upon informing us that the appeal was not resisted she only advanced two reasons for supporting the appeal founded on grounds of appeal as we shall soon discuss. Nevertheless, we think this should not take much of our time. Section 231(a) and (b) of the CPA stipulates that, at the close of the prosecution case, that the court, having found that a prima facie case has been made against the accused, to again

explain the substance of the charge and inform him his right to give evidence whether or not on oath or affirmation, on his own behalf, and to call witnesses in his defence. The accused's answers are to be recorded and then allow the accused to enter his defence. Revisiting the record of appeal, since the appellant had absconded, there was no opportunity for application of the said provision since the trial proceeded in his absence under section 226(1) of the CPA. Therefore, the ground has no merit. In ground two, the appellant faults the trial and first appellate courts for not finding that the charge contravened section 135(f) of the CPA since the time for commission of the offence was not described. Suffice it to say, while section 135(f) of the CPA provides thus: "135. The following provisions of this section shall apply to all charges and Information and, notwithstanding any rule of law or practice, a charge or an information shall, subject to the provisions of this Act, not be open to objection in respect of its form or contents if it is framed in accordance with the provisions of this section—

(f) subject to any otherprovision of this section ; it shaii be sufficient to describe any place, time, thing, matter, act or omission of any kind to which it is necessary to refer in any charge or information in ordinary language in such manner as to indicate with reasonable clarity the place, time, thing, matter, act or omission referred to." [Emphasis added] Section 132 of the CPA provides that: "132. Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence ch arg ed [Emphasis added] Flowing from above, and in the circumstances of the present case, we are of the view that, the time of commission of the offence was not an essential particular to prove the charges (see, Yustus Aidan v. Republic (Criminal Appeal 454 of 2019) [2022] TZCA 622 (6 October 10

2022. TANZLII and John Stephano & Others v. Republic (Criminal Appeal No. 257 of 2021) [2022] TZCA 469 (22 July 2022) TANZLII. To the contrary, although the cited decisions above related to charges of rape, what is clear is that specifying time in a charge sheet can only be necessary where time is of essence in proving the offence, which we find is not the case for the offence charged against the appellant. Moreover, in the circumstances, we find the omission to state the time in the charge, did not prejudice the appellant in any manner as the subsequent adduced evidence cured the omission. At this juncture, we are constrained to address the third ground in the memorandum of appeal alleging that the conviction was improper upon failure of the prosecution to prove the charges beyond reasonable doubt. Noteworthy is the fact that the learned Senior State Attorney conceded to this ground for two reasons: namely, failure of the prosecution to call to testify an independent witness during the seizure of the narcotic drugs and; that, the chain of custody of the narcotic drugs was not intact.

On the issue of failure to call an independent witness during the seizure of narcotic drugs, the first appellate court did not deliberate on this issue at length. It addressed the issue in general terms, when considering the exercise of seizure of narcotic drugs as seen on page 72 of the record of appeal stating that: - "... the court is of the view that during the arrest o f the accused, certificate of seizure was recorded. The independent witness was also called, and the said certificate was tendered in court without abjection, (thus complaint) has no merit" The law embraces essentiality of having witnesses during search and seizure exercises. Section 48(l)(2)(c) (ii) and (vii) and (d) of the DCEA alludes thus: ”48-(l) Subject to the provisions of this Act, die provisions of this Act, the procedures and powers conferred to officers of the Authority under this part shall be followed, unless in all circumstances it is unreasonable or impracticable to do so. 12

(2) For the purpose of subsection (1), an officer of the Authority and other enforcement organs who- (c) searches for an article used or suspected to have been used in commission of an offence shall- (vii) record and issue receipts or fill in the observation form an article or thing seized in a form set out in the Third Schedule to this Act." Undoubtedly, the presence of witnesses during search and seizure of substances, materials or articles or things seized relating to offences under DCEA is a requirement and the said witnesses are thereafter, expected to fill in the observation form set out. Section 38(3) of the CPA also provides for presence of witnesses during the search and seizure exercise, it stipulates: "Where anything is seized in pursuance of powers conferred by subsection (1) the officer seizing the thing shall issue a receipt acknowledging the seizure of that thing, being the signature of the owner or occupier of the premises or his near relative or otherperson for 13

the time being in possession or control of the premises, and the signature of witnesses to the search, if any." While we are aware that both provisions reproduced above do not stipulate that the witness should be independent and that there are exceptional situations such as in the bush or remote areas, were such witnesses are unavailable during search and seizure exercises where the requirement of having an independent witness can be dispensed with, as held in Jibril Okash Ahmed v. Republic (Criminal Appeal No. 331 of 2017) [2021] TZCA 13 (11 February 2021) TANZLII and Jason Pascal & Another v. Republic (Criminal Appeal 615 of 2020) [2022] TZCA 448 (19 July 2022) TANZLII. However, it is a rule of the thumb that during the conduct of search and seizure, independent witnesses must be sought for that purpose. In the case of Samwel Kibundali Mgaya v. Republic (Criminal Appeal No. 180 of 2020) [2022] TZCA 342 (14 June 2022) TANZLII, the Court held that section 38 (1) and (3) of the CPA connotes that: "...no search of premises should be effected without One, search warrant; two, the presence 14

o f the owner of the premises, occupier or his near relative at the search premises, three, the presence of an independent witness who is required to sign to verify his presence and four, issuance of a receipt acknowledging seizure of property." Again, in Mwanahamis Makenzi Said & Another v. The Director of Public Prosecutions (Criminal Appeal No. 687 of 2023) [2024] TZCA 330 (8 May 2024) TANZLII, we held that: "In effect, the need to have an Independent witness in conducting search and seizure is important because such a witness is able to provide independent evidence." (see also, Jibril Okash Ahmed (supra) and Fumu Ali Makama and Another v. Director of Public Prosecutions (Criminal Appeal No. 686 of 2023) [2024] TZCA 303 (6 May 2024) TANZLII). For the foregoing, plainly, in the instant case, as argued by the appellant and conceded by the learned Senior State Attorney, the absence of an independent witness during the search and seizure exercise and/or to testify at the trial degrades the evidence related to 15

the exercise conducted, especially when narcotic drugs are involved. It essentially derogates the said evidence for lack of independence and credence and makes it at risk of being seen as being prejudicial to the appellant. Therefore, we find the ground to have substance. In determining whether the prosecution side proved its case or not in cases such as the present one, the handling, transfer and storage of the seized exhibit from the time of seizure; when taken for analysis up to the time it is tendered and admitted in court is very important. Therefore, courts need to satisfy themselves that the chain of custody of seized exhibits remains intact at all stages from seizure up to the time they are admitted in court. Failure to lead evidence that provides proof of chain of custody of an exhibit is fatal for the prosecution case as held in various cases including AbUhi Omari Abdullah and 3 Others v. Republic, Criminal Appeal No. 28 of 2010 (unreported) and Oscar Nzelani v. Republic (Criminal Appeal No. 48 of 2013) [2013] TZCA 487 (20 June 2013) TANZLII. Deliberating on the chain of custody of the narcotic drugs seized (exhibit P2), the first appellate court was of the view that the chain of 16

custody of the exhibit was not broken as it was documented and the names of the persons handling and receiving it were mentioned. The learned Senior State Attorney had a different stance, stating that there were obvious gaps in the handling of the seized narcotic drugs from the time of seizure from the appellant, when sent for analysis to PW1, the government Chemist, up to the time of tendering them in court. She thus argued that under such circumstances, it was unsafe for the trial and first appellate courts to rely and base their conviction of the appellant on exhibit P2, P3 and the report of the analysis from PW1, stating it to contain narcotic drugs (exhibit PI). She urged us to find that considering her submissions, we should hold that the prosecution failed to prove the case beyond reasonable doubt. Suffice it to say that, we find that the handling and management of narcotic drugs (11 pieces of bhang) alleged to have been seized from the appellant from time of seizure to when they were tendered and admitted in the trial court to have left a lot of unanswered questions. According to PW2, after the search and seizure of the narcotic drugs on 19/1/2019 he handed them to the exhibit keeper (he did not mention the name) and that he labelled the exhibit, No. 20/2019. PW1 testified 17

that she received the exhibit for analysis on 29/1/2019 from a police officer named Ntendelwa (PW3). PW3 stated that on 29/1/2019 he took the exhibit from the exhibit keeper, whose name was not mentioned and took the exhibit to the Government Chemist Office and handed it to PW1. That the said exhibit was labelled No. 073/2019. On 12/2/2019, PW3 went back to the office of Government Chemist and was handed the exhibit, and he took it back to the exhibit keeper. He did not inform us on whether the package he took back had the same labels as those he saw when he had earlier handed the same to PW1. This was the same situation when PW2 stated that he took the exhibit from the exhibit keeper, having nothing on record, he did not inform us on what prompted him to take the package he took, and whether it was the same one he had handed over to the exhibit keeper. Having considered the evidence before us, we mapped out the following concerns: One, whilst the said exhibit was tendered in court on 13/12/2019 by PW1 and admitted as exhibit P2, there was no evidence that explained how PW1 acquired the said exhibit since PW2 stated he had taken it from PW1 and handed it to the exhibit keeper, meaning at the time, it was not expected to be in custody of PW1 since 18

there was no evidence showing who handed her the exhibit. Two, no witness gave the name of the exhibit keeper who had handled the exhibit, as he had been the one to whom PW2 handed soon after its seizure. It was the exhibit keeper who is said to have handed the exhibit to PW3 to take it to the Government Chemist officer for analysis and later received it back when PW3 had returned it. Three, the said exhibit keeper did not testify on how the exhibit was stored, transferred, and handled or labelled when under his/her custody. Four, failure of the witnesses who handled the exhibit to explain the reason for the delay to send it to PW1 for analysis from 19/1/2019 when it was seized, up to 29/1/2019 when PW1 acknowledged to have received it. Five, no documentation showing the transfer and handling of the said exhibit. We are alive to the fact that chain of custody may be proved by oral or documentary evidence as established by various decisions of this Court (see, Charo Said Kimilu v. Republic, Criminal Appeal No. I l l of 2015 and Meshack Abel Vs Republic, Criminal Appeal No. 297 of 2013 (both unreported). However, as shown by the queries raised above, in the instant case, as argued by the learned Senior State Attorney, neither the documentary evidence nor oral evidence or both 19

give weight to the sanctity of the chain of custody of exhibit P2, the seized bhang. In Malik Hassan Suleiman v. SMZ [2005] TLR 236, the Court faced with a much similar dilemma and thus observed: "Given the manner in which the bhang was handled by the police, the government chemist, and eventually the court, anybody could have tempered with it in the process and thus it could notbe safely said and concluded that the alleged four packets of bhang seen in the appellant's jacket were necessarily the bhang that was examined and certified by the Government chemist ." It follows that the available prosecution evidence on record cannot resolve the doubts we have raised on the chain of custody of the narcotic drugs. Considering failure of the prosecution side to call the independent witness who is alleged to have witnessed the search and seizure of the narcotic drugs, subject of this appeal, and the fact that the chain of custody appears to have been broken, plainly, the prosecution case is rendered unproven to the standard required by law. 20

For the foregoing, we are of the considered view that this is sufficient to dispose of the appeal without determining the remaining grounds of appeal. In the end, the appeal is allowed. We quash the conviction and the sentence imposed against the appellant is set aside. We order the appellant's immediate release if he is not otherwise being lawfully held. DATED at MWANZA this 9t h day of October, 2025. W. B. KOROSSO JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Judgment delivered this 10th day of October, 2025 in the presence of the Appellant in person, Mr. Adam Murusili, learned State Attorney for the Respondent/Republic, connected virtually and Miss Harida Hamisi, the Court Clerk; is hereby certified as a true copy of the original.