Kuncha Mbwita Kimase vs Republic (Criminal Appeal No. 631 of 2021) [2025] TZCA 1039 (8 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA fCORAM: KEREFU, J.A.. MWAMPASHI, J.A. And AGATHO. 3-A.l CRIMINAL APPEAL NO. 631 OF 2021 KUNCHA MBWITA KIMASE ...................................................... APPELLANT VERSUS THE REPUBLIC.......................................................... ...........RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Musoma) (Galeba. J.^ dated the 5thday of February, 2021 in Criminal Appeal No. 155 of 2020 JUDGMENT OF THE COURT 7th & 8* October, 2025 KEREFU, J.A,: In the District Court of Serengeti at Mugumu, the appellant, Kuncha Mbwita @ Kimase was charged with unlawful possession of Government trophies contrary to section 86 (1) and (2) (b) 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 Economic and Organized Crimes Control Act, Chapter 200 of the Revised Laws (the EOCCA) as amended by the Written Laws (Miscellaneous Amendments) Act No. 3 of 2016. It was alleged that, on 15th December, 2018, he was found in unlawful possession of Government trophies to wit, eight pieces of fresh meet of zebra valued at TZS 2,640,000.00 the property of the United Republic of Tanzania.

The appellant denied the charge laid against him and therefore, the case had to proceed to a full trial. To establish its case/the prosecution marshalled a total of four witnesses and three documentary evidence, namely, the certificate of seizure (exhibit PI), the trophy valuation certificate (exhibit P2), and, inventory form (exhibit P3). The appellant relied on his own evidence as he did not summon any witness. Briefly, the sequence of events leading to the arraignment and conviction of the appellant, as obtained from the record of appeal indicate that, on 15th December, 2018 at around 09:30 hours, while PF.17648 INSP, Abdallah Mbwana @ Iddy (PW1) was on his normal duties, he received information that, there was one person in Burunga Village, who was selling fresh meet suspected to be Government trophy. PW1 stated that, he went to the scene of crime in company of DC. Proches (PW2) together with other police officers. That, on their way, they met a bodaboda with two people. They stopped it and upon searching them, they found eight pieces of fresh meat of zebra. Upon interrogation, the bodabodcfs driver explained that, he was hired by the other person (the appellant), to take him to his house. PW1 stated further that, since the appellant was with no permit to allow him to own Government trophies, they seized the said meat, prepared a certificate of seizure which was admitted in evidence as exhibit PI. In his testimony, PW2 supported the

narration by PW1 and added that, when they asked the appellant as where he got the said meant, he told them that, he purchased it from people of Miseke Village. Wilbroad Vicent (PW3), a Wildlife Warden stated that, he identified the Government trophies found in possession of the appellant, valued it and prepared a Trophy Valuation Certificate (exhibit P2). In addition, No. G. 8118 Washa (PW4), the investigation officer testified that, he was involved in the investigation of the incident. PW4 tendered the inventory form on the said trophies which was admitted in evidence as exhibit P3. In his defence, the appellant denied to have committed the offence. In particular, he contended that, on 15th December, 2018, he went to \ attend funeral ceremony at Bwitengi Village. That, on his way back home he hired a bodaboda. That, at some point they were stopped and arrested by the police officers who brought them to Mugumu Police Station. On the following day, that is, 16th December, 2018, the said police officers took him to his house where they searched and found no Government trophies therein. They, however, brought him back to Mugumu Police Station where the charge against him was prepared and later, he was taken to the court. Having heard the evidence from both sides, the learned trial Resident Magistrate was convinced that the prosecution had proved the

case against the appellant to the required standard. Thus, the appellant was found guilty, convicted and sentenced to twenty years' imprisonment term. The appellant's appeal before the High Court was unsuccessful. Undaunted, and still protesting his innocence, the appellant has knocked doors of this Court on a second appeal seeking to challenge the decision of the first appellate court. It is noteworthy that, on 8th December, 2021 and 12th December, 2023 respectively, the appellant lodged two memoranda of appeal comprising eleven (11) grounds. Again, on 29thSeptember, 2025, Mr. Innocent John Kisigiro, learned counsel for the appellant, lodged a supplementary memorandum of appeal comprising two the grounds of appeal. However, for reasons which will be apparent shortly, we do not deem it appropriate, for the purpose of this judgment, to reproduce them herein. At the hearing of the appeal, the appellant was represented by Mr. Innocent John Kisigiro, learned counsel whereas the respondent Republic was represented by Ms. Grace Michael Madikenya, learned Senior State Attorney assisted by Ms. Joyce Matimbwi, learned State Attorney. At the outset, Ms. Matimbwi, who addressed the Court on behalf of her colleague, declared the respondent's stance of supporting the appeal on a point of law pertaining to the jurisdiction of the trial court in

entertaining the matter: - That, the trial court lacked the requisite jurisdiction to entertain the appellant's case which was on an economic offence. As such, Ms. Matimbwi sought and obtained leave to address us on that legal point. Elaborating on that point, Ms. Matimbwi argued that, the trial court entertained the appellant's case which was on an economic offence without having a requisite jurisdiction to do so. To amplify further, she referred us to pages 5 and 6 of the record of appeal and argued that, both the consent and the certificate issued by the Senior State Attorney in- charge conferring jurisdiction on a subordinate court to try the appellant's case were invalid on account of failure to cite specific provisions of the law against which the appellant was charged with to wit, section 86 (1) and (2) (b) of the WCA. It was her argument that, in the absence of a valid consent and certificate, the trial court was not legally conferred with jurisdiction to try the case which involved an economic offence, thus rendering the entire proceedings and judgments of both lower courts nullity. To bolster her arguments, she referred us to our previous decisions in the cases of Sila Sila Chacha & 2 Others v. Republic [2024] TZCA 1027 and Peter Kongori Maliwa & 4 Others v. Republic [2023] TZCA 17350. She then implored us to invoke revisional powers bestowed on the Court under section 6 (2) of the Appellate Jurisdiction Act, Cap. 141 of the

Revised Laws (the A3A) to quash the proceedings and judgments of the lower courts and set aside the conviction and sentence imposed on the appellant. On the way forward, Ms. Matimbwi submitted that, ordinarily, she would have prayed for an order for a retrial, but she could not do so on account of other legal shortcomings in the trial court's proceedings. That, the inventory form (exhibit P3) was improperly acted upon by the trial court and was expunged by the first appellate court from the record of appeal. Another anomaly she pointed out, is on the involvement of the appellant in the process of disposal of the said trophies. That, the trial court's record is silent on how the appellant was involved in that process. She thus insisted that this is not a fit case for a retrial. On that basis, she prayed the Court to set the appellant free. On his part, Mr. Kisigiro concurred with the submission of his learned friend that the trial court did not have the requisite jurisdiction to entertain the matter. He added the case of Emmanuel Saguda @ Sulukuka & Another v. Republic [2014] TZCA 2184 and also urged us to nullify the entire proceedings of the trial court and that of the first appellate court as it emanated from nullity proceedings. He, as well did not press for a retrial on account of weakness of the prosecution case, as stated by Ms. Matimbwi. Finally, he also urged us set the appellant at liberty.

Having considered the submissions advanced by the learned counsel for the parties in the light of the record of appeal before us, we find that the main issue for our determination is on whether there was a valid consent and certificate conferring jurisdiction to the trial court to adjudicate the appellant's case. Our starting point is the charge which was preferred against the appellant. There is no dispute that before the trial court, the appellant was charged with an economic offence contrary to section 86 (1) and (2) (b) of the WCA. The said charge was accompanied by a consent issued by the Senior State Attorney in-charge under sections 26 (2) of the EOCCA and a certificate conferring jurisdiction to the trial court to adjudicate the case made under section 12 (3) of the same Act. Section 26 (1) and (2) of the EOCCA provides that: 26 (1) Subject to the provisions of this section ; no trial in respect of an economic offence may be commenced under this Act save with the consent of the Director of Public Prosecutions; and (2) The Director of Public Prosecutions shall establish and maintain a system whereby the process of seeking and obtaining of his consent for prosecutions may be expedited and may, for that purpose, by notice published in the Gazette , specify economic offences the prosecutions of

which shall require the consent of the Director o f Public Prosecutions in person and those the power of consenting to the prosecution of which maybe exercised by such officer or officers subordinate to him as he may specify acting in accordance with his general or special instructions. Furthermore, section 12 (3) provides that: "The Director of Public Prosecutions or any state attorney duly authorized by him, may, in each case in which he deems it necessary or appropriate in the public interest, by certificate under his hand, order that any case involving an offence triable by the Court under this Act be tried by such court subordinate to the High Court as he may specify in the certificate . " [Emphasis added]. This Court, has had occasions, previously, to deliberate on the applicability of the above provisions and the anomalies stated by the learned counsel for the parties and held that, a consent and certificate issued under the above provisions without indicating the specific provision (s) under which the charge is preferred against the accused person cannot legally confer jurisdiction on the trial court. See for instance, the cases of Peter Kongori Maliwa (supra) and Kwabi Nila @ Limbu v. Republic [2024] TZCA 1028. In these cases, and others, the Court nullified 8

proceedings of the trial court for failure to indicate in a consent and certificate specific provisions of the economic offence under which the charge is preferred against the accused person. Specifically, in Kwabi Nila @ Limbu (supra), we stated that: "The purported consent and certificate Issued by the SeniorState Attorney did not cite the provision o f law creating the offence in the J d count o f unlawful possession of Government Trophy that is, section 86 (1) and (2) (iii) of the WCA. The legal consequence of such omission vitiates the trial proceedings andjudgment as the trial court acted withoutjurisdiction ." In the instant appeal, upon our finding that the consent and certificate issued by the Senior State Attorney in-charge under section 26 (2) and 12 (3) of the EOCCA did not cite the specific provisions of the law creating the economic offence of unlawful possession of Government Trophy, the same are invalid. As correctly argued by the learned counsel for the parties, the said omission vitiated the entire trial hence rendering the entire trial court's proceedings a nullity. So were the proceedings and judgment in the appeal before the High Court, as they stemmed from nullity proceedings. y That being the position, we hereby invoke the revisional powers bestowed on the Court under section 6 (2) of the A3A and nullify the

proceedings and the judgments of both the trial court and the High Court, quash the appellant's conviction and set aside the sentences imposed on him. The subsequent question which crops up from the foregoing position, is on what should be the way forward. Ordinarily, where the proceedings of the trial court have been nullified on appeal, the common practice and procedure is to order for a retrial. Nonetheless, there are some factors which have to be considered before a retrial order is made. The guidance, which in our view did sum up the criteria for ordering a retrial or not, was given in the case of Fatehali Manji v. Republic, [1966] EA 343 when the Court stated that: "...In general a retrial will be ordered only when the original trial was Illegal or defective; It will not be ordered where the conviction is set aside because o f insufficiency o f evidence or for the purpose o f enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its particular facts and circumstances and an order for retriai should only be made where the interests ofjustice require it and should 10

not be ordered where it is likely to cause an injustice to the accused person . " [Emphasis added]. Being guided by the above authority and having securitized the record of appeal before us, we agree with the submissions by both learned counsel for the parties that this is not a fit case for us to make an order for a retrial. The articulated irregularities and unfolded deficiencies in the prosecution case shade doubts that, if the prosecution is given the opportunity there is a likelihood of filling in gaps. It is on record that, throughout the trial, the prosecution did not prove that the appellant was found in possession of the said Government trophy as the same was not produced at the trial to prove that fact. It is also clear to us that even the inventory form (exhibit P3) was improperly acted upon, as the same was expunged by the first appellate court, as the record of the trial court is silent on the procedure used to dispose of the said trophies alleged to have been found in the appellant's possession. Thus, the appellant was denied his right to be heard on that aspect. It goes without saying that, the first appellate court having correctly expunged exhibits P3 from the record, there would be no factual materials to link the appellant with the economic offence he was charged with. It is therefore our settled view that, all these are crucial matters which, as argued by the learned counsel for the parties, if an order for 11

retrial is given will avail an opportunity to the prosecution to fill in gaps. Being guided by the above authority, we do not find it appropriate to order for a retrial. In the event, we order for the immediate release of the appellant from prison unless he is held for some other lawful cause. DATED at MUSOMA this 7th day of October, 2025. Judgment delivered this 8thday of October, 2025 in the presence of the Appellant in person and Mr. Jonas Samwel Kivuyo, learned State Attorney for the Respondent/Republic, 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 C. M. MAGESA DEPUTY REGISTRAR COURT OF APPEAL M. MAGESA 12