Makena Baru @ Mwita vs Republic (Criminal Appeal No. 579 of 2022) [2025] TZCA 1029 (7 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA f CORAM: KEREFU, J.A., MWAMPASHI. J.A. And AGATHO. J J U CRIMINAL APPEAL NO. 579 OF 2022 MAKENA BARU @ MWITA .................. . ................................ . .... APPELLANT VERSUS THE REPUBLIC... ................. . .................. . ............................RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Musoma) (KahyozaJ.) dated the 11thday of October, 2021 in Criminal Appeal No. 10 of 2021 JUDGMENT OF THE COURT 6th & 7th October, 2025 KEREFU. 3.A.: The appellant, Makena Baru @ Mwita together with five others, namely, Maiya Samwel @ Munge, Reuben Ikwabe @ Mwita, Samweli Marco @ Samweli, Joseph John @ Mwita and Sungura Daniel @ Meshak, (the 2n d , 3r d , 4th , 5t h and 6th accused respectively), who are not parties to this appeal, were all before the District Court of Serengeti at Mugumu, jointly charged with three counts. On the first count, they were charged with the offence of unlawful entry into the Game Reserve contrary to sections 15 (1) and (2) of the Wildlife Conservation Act. No. 5 of 2009 (the WCA). It was alleged that, i

on 19t h August, 2019 at Risiba area in Ikorongo Grumeti Game Reserve within Serengeti District in Mara, they entered into the Game Reserve without permission of the Director thereof. On the second count, they were charged with unlawful possession of weapons in a Game Reserve contrary to section 17 (1) and (2) of the WCA read together with Paragraph 14 of the 1s t Schedule to 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 the same date and place they were found in unlawful possession of weapons to wit, one panga without the permission from the authorized authority. As for the third count, they were charged with unlawful possession of Government trophies contrary to section 86 (1) (2) (c) (iii) of the WCA read together with Paragraph 14 of the 1s t Schedule to, and sections 57 (1) and 60 (2) of the EOCCA. It was alleged that, on the same date and place they were found in unlawful possession of fourteen hind limbs of wildebeest and one head of wildebeest valued at TZS 10,010,000.00 the property of the United Republic of Tanzania.

They all denied the charge laid against them. It is noteworthy that, on 5th June, 2020 and 27th July, 2020 respectively, the Director of Public Prosecutions on behalf of the Republic, entered a nolle prosequi in respect of the 2n d , 4th , 5th and 6th accused persons. Thus, they were discharged and the trial proceeded against the appellant and 3r d accused person. Briefly, the prosecution case as obtained from the record of appeal indicates that, on 19th August, 2019 at about 03:30 hours, when the Game Scout namely, Paineto Mafwele (PW1) and his colleagues were on patrol at the Grumet Game Reserve, as part of their routine work, they saw a torch light. PW1 said, they followed it and managed to arrest one person (the appellant) who was in possession of one panga and Government trophies to wit, fourteen (14) fresh hind limbs and one head of wildebeest. PW1 stated further that, since the appellant was with no permit to allow him to enter into the Game Reserve, they seized the said items, prepared a certificate of seizure (exhibit PI) and the weapon exhibit P2. Thereafter, they took the appellant together with the seized items to Mugumu Police Station. No. G. 3071 DC Genuine (PW2), the investigation officer testified that, he was involved in the investigation of the incident. That, on 19th August, 2019 at 15:30 hours, he recorded the appellant's cautioned statement, in which he 3

admitted to have committed the offence and mentioned his other colleagues. That, on 22n d August, 2019, in assistance of the appellant they managed to arrest the other culprits at Mbirikiri and Bonchugu Villages. The appellant's cautioned statement was admitted in evidence and marked as exhibit P3. Wilbroad Vicent (PW3), a Wildlife Warden stated that, he identified the Government trophies found in possession of the appellant, valued them and prepared a Trophy Valuation Report (exhibit P4). In addition, No. G. 3694 DC Shaban (PW), tendered the inventory form which was admitted in evidence as exhibit P5. In their respective defence, the appellant (DW1) and the third accused (DW2), denied to have been found neither in the Grumet Game Reserve nor in possession of the Government trophies and the panga mentioned in the charge. They all contended that, they were arrested at night hours on 18th and 22n d August, 2019 respectively, while at their different homes sleeping with their wives. That, police officers knocked at their doors and having opened, they were arrested and taken to Mugumu Police Station where the charge against them was prepared and later, taken to the court.

In addition, Leticia Reuben @ Ikwabe (DW3), the wife of DW2, supported the narration by DW2. She added that, despite the fact that, when they searched their house, at that night, they found nothing, the police officers arrested DW2 and took him to Mugumu Police Station. After a full trial, the trial court accepted the version of the prosecution's case and the appellant together with the 3r d accused person were found guilty as charged. Upon conviction, they were both sentenced to serve one- year imprisonment term for the first count. On the second count to serve two years' imprisonment term and for the third count to serve thirty years' imprisonment term. The sentences were ordered to run concurrently. Aggrieved, the appellant unsuccessfully appealed to the High Court where the learned High Court Judge allowed the appeal for the 3r d accused and upheld the decision of the trial court on the appellant for the first court. On the second count, the sentence of two years' imprisonment was enhanced to twenty-years' imprisonment. The conviction on the third count was quashed and the sentence imposed on it by the trial court was set aside. 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. In his memorandum of appeal, the appellant raised

four (4) grounds which, for reasons that will shortly come to light, we need not recite them herein. At the hearing of the appeal, the appellant appeared in person whereas the respondent Republic was represented by Ms. Wampumbulya Shani, learned Senior State Attorney assisted by Ms. Beatrice Timothy Mgumba, learned State Attorney. When given an opportunity to argue his appeal, the appellant adopted his grounds of appeal and preferred to let the learned Senior State Attorney to respond first but he reserved his right to rejoin, if need to do so would arise. At the outset, Ms. Shani declared the respondent's Republic stance of supporting the appeal on the first ground of the appeal. However, before we could proceed on the merit or demerit of the appeal, we wanted to satisfy ourselves as to whether the trial court had jurisdiction to entertain the matter on account of failure by the Senior State Attorney in-charge to indicate the specific provisions of the law, in the consent and the certificate conferring jurisdiction on a subordinate court to try economic and noneconomic cases under which the offence of unlawful

possession of government trophy in the third count was preferred. As such, we invited the parties to address us on that issue. In her response, Ms. Shani conceded that the trial court had no jurisdiction to conduct the trial which involved an economic offence, as both the consent and the certificate issued by the Senior State Attorney in-charge conferring jurisdiction on a subordinate court to try economic and non economic cases were invalid for having not cited the provisions of the law under which the offence of unlawful possession of government trophy in the third count was preferred. She argued 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 rendering the entire proceedings and judgments of the lower courts a nullity. She thus implored us to invoke revisional powers bestowed on the Court under section 6 (2) of the Appellate Jurisdiction Act, Cap. 141 (the AJA) to quash the proceedings and judgments of the lower courts and set aside the convictions and sentences imposed on the appellant. On what should be the way forward, she submitted that though, ordinarily an order for retrial would be the best approach, in the instant appeal where the prosecution evidence suffers from serious weaknesses, the 7

appropriate remedy is an order of acquittal. She pointed out that during the trial, the prosecution failed to adduce evidence regarding the boundaries and or geographical map of the Grumeti Game Reserve to prove that the appellant was found inside the Reserve. It was her humble view that if retrial is ordered, it will allow the persecution to fill some of those gaps. As such, the learned Senior State Attorney refrained from pressing for an order of retrial and instead she prayed that the appeal be allowed and the appellant be set free. On his part, the appellant did not have much to contribute to the legal issue raised, but he agreed with the proposed way forward. On that account, he also prayed for his appeal to be allowed and that he be set at liberty. From the submissions made by the parties, the crucial issue for our consideration is whether the consent and certificate conferring jurisdiction on the trial court was invalid, thus rendering the entire proceedings of both courts below a nullity. It is on record, and as it is intimated above, the charge laid against the appellant before the trial court comprised both, economic and non-economic offences. The said charge was accompanied by a consent issued by the 8

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 (4) 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 o f 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 ofhis consent forprosecutions 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 of Public Prosecutions in person and those the power of consenting to the prosecution of 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. Furthermore, section 12 (4) provides that: "The Director o f Public Prosecutions or any state attorney duly authorized by him, may, in each case 9

In which he deems it necessary or appropriate in the public interest, by certificate under his hand order that any case instituted or to be instituted before a court subordinate to the High Court and which involves a non-economic offence or both an economic offence and a non-economic offence, be instituted in the Court." 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 Dilipkumar Maganbai Patel v. Republic [2022] TZCA 477, Peter Kongori Maliwa v. the Director of Public Prosecutions [2023] TZCA 17350 and Kwabi Nila @ Limbu v. Republic [2024] TZCA 1028. In all these cases, the Court nullified proceedings of the trial court for failure to indicate specific provisions of the economic offence under which the charge is preferred against the accused person. Specifically, in the latter case, we stated that: "The purported consent and certificate issued by the SeniorState Attorney did not cite the provision o flaw 10

creating the offence in the J d count of 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 and judgment as the trial court acted without jurisdiction." Similarly, in the instant appeal, upon our finding that the consent and certificate issued by the Senior State Attorney under section 26 (2) and 12 (4) of the EOCCA did not cite the specific provisions of the law creating the offence in the 3r d count of unlawful possession of Government Trophy that is, section 86 (1) and (2) (iii) of the WCA, 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. That being the position, we hereby invoke the revisional powers bestowed on the Court under section 6 (2) of the AJA and nullify the proceedings and the judgments of both the trial court and the High Court, V : : ' - quash the appellant's conviction and set aside the sentences imposed on him. ii

On the way forward, ordinarily an order of retrial would follow. The principle as regards the situations under which a retrial may be ordered was stated in the famous case of Fatehali Manji v. Republic [1966] E.A. 343 in which the following was 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 of insufficiency of evidence or for the purpose of 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 retrial should only be made where the interests o f justice require it and should not be ordered where it is likely to cause an injustice to the accused person.''[Emphasis added]. Having securitized the record of appeal before us, we agree with the submission by Ms. Shani that this is not a fit case for us to make an order for a retrial. The irregularities and unfolded deficiencies in the prosecution 12

case shade doubts that, if the prosecution is given the opportunity there is a likelihood of filling in gaps. Certainly; one, the prosecution has completely failed to adduce evidence regarding the boundaries and or geographical map of the Grumeti Game Reserve to prove their allegations against the appellant; two, the inventory form (exhibit P5) was improperly acted upon, as the record of the trial court is silent on the procedure used to dispose of the Government trophies alleged to have been found in the appellant's possession thus, denying him a right to be heard. Three, the appellant was convicted on his cautioned statement (exhibit P3) which was recorded out of time and was also improperly acted upon by the trial court. That, the first appellate court having correctly expunged exhibits P3 and P5 from the record, there would be no factual materials to link the appellant with the said economic offences. It is therefore our settled view that, all these are crucial matters which, if an order for 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. is

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 6th 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 7th day of October, 2025 in the presence of the Appellant in person and Ms. Joyce Godfrey Matimbwi, learned State Attorney for the Respondent/Republic, Shabani Kinyai, Court Clerk; is hereby certified as a true copy of the original. 14