Peter John @ Nyambabe vs Republic (Criminal Appeal No. 415 of 2021) [2025] TZCA 1019 (6 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: KEREFU, 3.A.. MWAMPASHI. J.A. And AGATHO. JJU CRIMINAL APPEAL NO. 415 OF 2021 PETER JOHN @ NYAMBABE................................................ APPELLANT VERSUS THE REPUBLIC ................................................................. RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Musoma) (Kahvoza, 3A dated the 8thday of July, 2021 in Criminal Appeal No. 4 of 2021 JUDGMENT OF THE COURT 3* & 6th October, 2025 KEREFU. J.A.: In the District Court of Bunda, the appellant, Peter John @ Nyambabe was charged with four counts under the National Parks Act, Chapter 282 of the Revised Laws (the NPA) and the Economic and Organized Crimes Control Act, Chapter 200 of the Revised Laws (the EOCCA). On the first count, the appellant was charged with the offence of unlawful entry into the national park contrary to sections 21 (1) (a) (2) and 29 (1) of the NPA. It was alleged in the particulars of the offence that, on 26thSeptember, 2018 at Mlima Kirawira area in Serengeti National Park within Bunda District in Mara Region the appellant entered into the Serengeti National Park without permission of the Director of National Parks.

On the second count, he was charged with unlawful possession of weapons in a national park contrary to section 24 (1) (b) and (2) of the NPA. It was alleged that on the same date and place the appellant was found in unlawful possession of weapons in the Serengeti National Park to wit, one panga, one knife and four animal trapping wires without the permission from the authorized authority. As for the third and fourth counts the appellant was charged with unlawful possession of Government trophies contrary to section 86 (1) (2) (c) (iii) of the Wildlife Conservation Act, No. 5 of 2009, as amended by the Written Laws (Miscellaneous Amendments) Act No. 2 of 2016 read together with Paragraph 14 of the 1s t Schedule to the EOCCA. On the third count, it was alleged that, on the same date and place the appellant was found in unlawful possession of two pieces of fresh meat of wildebeest valued at USD 650 equivalent to 7ZS 1,469,000.00 the property of the United Republic of Tanzania. On the fourth count, it was alleged that on the same date and place the appellant was found in unlawful possession of two fresh hind limbs and two fresh fore limbs of zebra valued at USD 1200 equivalent to TZS 2,712,000.00 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 2

marshalled a total of three witnesses, five-documentary evidence and three physical evidence. The appellant relied on his own evidence as he did not summon any witness. In a nutshell, the prosecution case as obtained from the record of appeal indicate that, on 26thSeptember, 2018 at about 13:00 hours, when the Conservation Rangers of Serengeti National Park (the National Park) namely, Julius John Nganya (PW1) and Noel Kinyunyu (PW2), were on patrol at Milima ya Kirawira area, as part of their routine work, they detected human foot print marks leading to a certain bush inside the National Park. PW1 said, they decided to trace them and after a while they found one person (the appellant) who had two pieces of fresh meat of wildebeest, two fresh hind limbs and two fresh fore limbs of zebra. That, the appellant was also in possession of one panga, one knife and four trapping wires. PW1 stated further that, since the appellant was with no permit to allow him to enter into the National Park, they seized the said items, prepared a certificate of seizure (exhibit PI) and the weapons exhibits P2, P3 and P4. That, they then brought the appellant to KDU- Office at Bunda where they recorded their statements. Subsequently, the appellant was taken to Bunda Police Station. In his testimony, PW2 supported the narration by PW1 but he added that the appellant was found with four pieces of fresh meat of wildebeest

Hilary Godbless Lyimo (PW3), a Wildlife Officer stated that, he identified the Government trophies found in possession of the appellant, valued them and prepared a valuation report. PW3 tendered an identification and evaluation report which were admitted in evidence as exhibits P5 and P6 respectively. He also tendered the inventory forms (exhibits P7 and P8). In his defence, the appellant, who testified as DW1, denied to have been found neither in the National Park nor in possession of the Government trophies and the weapons mentioned in the charge. In particular, he contended that, on 26t hSeptember, 2018 while watering his garden alongside Rubana River area adjust to the Serengeti National Park, he heard a voice ordering him to sit down. Which he obeyed. He then, saw one person crossing the river coming towards him. The said person asked him on what he was doing and he told him that he was watering his garden. Suddenly, the said person with his fellow assaulted and forced him to board on their motor vehicle which had other officers and was taken to KDU-Office at Bunda. Later, he was taken to Bunda Police Station where the charge against him was prepared and later on, he was taken to court. After a full trial, the trial court accepted the version of the prosecution's case and the appellant was found guilty, convicted and

sentenced on the first count to pay a fine of TZS 200,000.00 or to serve two-years imprisonment on default. On the second count he was ordered to pay a fine of TZS 100,000.00 or two-years imprisonment, while on the third and fourth counts he sentenced to 20 years' imprisonment each. The sentences were ordered to run concurrently. Aggrieved, the appellant unsuccessfully appealed to the High Court where the trial court's conviction and sentence were upheld, hence the present appeal. In his memorandum of appeal, the appellant raised four (4) grounds of appeal which, for reasons that will shortly come to light, we need not recite them herein. At the hearing of the appeal, the appellant was represented by Mr. Leonard Elias Magwayega. On the other side, 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. Madikenya declared their 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 had nojurisdiction to try the case against the appellant for lack o f the consent and certificate o f the Director of Public Prosecutions (the DPP) as required by sections 26 (1) and 12 (3) o f the EOCCA respectively.' 5

Elaborating on that point, Ms. Madikenya argued that, before the trial court, the appellant was charged with four counts, one count of which was for non-economic offence and the other three were economic offences. That, under section 26 (1) of the EOCCA, it is the Director of Public Prosecutions (the DPP), who is vested with powers to issue consent for the prosecution of economic offences. She argued that, on the contrary, in this case, it was the Senior State Attorney in-charge who issued consent under section 26 (1) of the EOCCA for the trial of the economic case. She contended that, had the Senior State Attorney in- charge wished to issue consent for that purpose, he would have done so under section 26 (2) of the EOCCA and not otherwise. To amplify further on her point, she referred us to page 12 of the record of appeal and argued that, in the absence of the DPP's consent and a certificate of transfer of the said case, the trial court had no requisite jurisdiction to entertain the matter. On that account, she submitted that the proceedings in the trial court as well as those in the first appellate court were a nullity. To support her proposition, she referred us to our previous decisions in the cases of Dilipkumar Maganbai Patel v. Republic [2022] TZCA 477 and Ghati Mwikwabe @ Sasi v. Republic [2023] TZCA 17814. She then beseeched us to invoke the powers of revision bestowed upon the Court under section 4 (2) of the Appellate

Jurisdiction Act, Cap. 141 (the AJA) to nullify the aforesaid proceedings and the judgment of both courts, quash the conviction and set aside the sentence meted out against the appellant. On the way forward, Ms. Madikenya was hesitant to press for an order for retrial on account of procedural irregularities apparent on the face of record and the weakness of the prosecution case. She pointed out three main irregularities committed during the trial. First, failure by the prosecution to adduce evidence regarding the boundaries and or geographical map of the Serengeti National Park; Second, that, the certificate of seizure (exhibit PI), identification and certificate of valuation (exhibits P5 and P6) together with the inventory forms (exhibits P7 and P8) were all improperly admitted in evidence as their contents were not read out to the appellant during the trial to enable him to understand its contents. Third, that, the appellant's objections regarding admission of the said exhibits were not considered. It was the submission of Ms. Madikenya that those irregularities are critical in the prosecution case able to cause it to collapse. She thus refrained from pressing for an order of retrial and instead prayed that the appellant be set free. On his part, Mr. Magwayega concurred with the submission of his learned friend that the trial court did not have the requisite jurisdiction to entertain the matter. He also elaborated further on the pointed-out 7

irregularities and equally 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 retrial on account of weakness of the prosecution case. He added that, PW1, PW2 and PW3 were incredible and unreliable witnesses as their evidence was tainted with contradictions and inconsistencies. That, since the evidence of the said witnessed created doubts, the same should be resolved in favour of the appellant. He thus, also urged us to allow that appeal and set the appellant 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 to entertain the matter was invalid, thus rendering the entire proceedings for both courts below a nullity. It is on record that the charge laid against the appellant before the trial court comprised both, economic and non-economic offences. The said charge was accompanied by a Senior State Attorney's consent which was issued under section 26 (1) 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: 8

26 (1) Subject to the provisions of this section, no triai in respect o f an economic offence may be commenced under this Act save with the consent of the Director of Pubiic Prosecutions; and (2) The Director of Pubiic Prosecutions shaii estabiish and maintain a system whereby the process o f seeking and obtaining of his consent for prosecutions may be expedited and may, for that purpose, by notice pubiished in the Gazette, specify economic offences the prosecutions o f which shail require the consent of the Director of Public Prosecutions in person and those the power of consenting to the prosecution o f which maybe exercised by such officer or officers subordinate to him as he may specify acting in accordance with his generai or speciai instructions. It is clear from the wording of the above provisions that, the learned Senior State Attorney in-charge had no powers to issue a consent under section 26 (1) of the EOCCA. If he had intended to issue the consent, he would have done so under section 26 (2) of the EOCCA and for specified economic offences. We thus agree with the learned counsel for the parties that the consent having been issued illegally it was invalid. It follows that the appellant was wrongly prosecuted by the trial court. Accordingly, the invalid consent rendered the certificate conferring jurisdiction to the trial court ineffectual. There are numerous authorities to this effect and some g

of them have been cited to us by Ms. Madikenya in her submission. We will however, add few, such as, Sandu John v. Republic [2023] TZCA 17719 and Peter Kongori Maliwa v. the Director of Public Prosecutions [2023] TZCA 17350. In the latter case, having faced with an akin situation, we stated that: "Similarly, in the case under scrutiny, since the Prosecution Attorney in-charge purported to issue consent under section 26 (1) o f the EOCCA which was not within his mandate, it amounted to no consent at all authorising the prosecution o f the appellant by the trial court. In the event, the proceedings o f the trial court were a nullity as it could not assume the jurisdiction without the requisite consent to prosecute the appellant as required by law. Ultimately, the proceedings o f the first appellate court were also null and void as they emanated from nullity proceedings of the trial court. We therefore, conclude that the appellant was wrongly prosecuted at the trial court ." Likewise, in the instant appeal, there is no gainsaying that the trial court lacked jurisdiction to adjudicate on the case. The irregularity vitiated the entire trial hence renders the trial proceedings a nullity so, were the proceedings and judgment in the appeal before the High Court, as they stemmed from nullity proceedings. 10

That being the position, we hereby invoke the revisional powers of this Court under section 4 (2) of the ADA and nullify the proceedings and the judgments of both the trial court and the High Court, quash the appellants conviction and set aside the sentences imposed on him. On the way forward, we hasten to entirely and respectfully agree with the submission by the 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. Certainly, the certificate of seizure (exhibit PI), trophy identification and valuation report (exhibits P5 and P6) together with the inventory forms (exhibits P7 and P8) were all not read out and or explained to the appellant after their admission in evidence for him to understand their contents and adequately prepare for his defence. Furthermore, the prosecution has completely failed to adduce evidence regarding the boundaries and or geographical map of the Serengeti National to prove their allegations against the appellant. Moreover, PW1, PW2 and PW3 were incredible and unreliable witnesses as their evidence was tainted with contradictions and inconsistencies in respect of the trophies alleged to have been found in the appellant's possession. In addition, the record of the trial court is silent on the 11

procedure used to dispose of the Government trophies alleged to have been found in the appellant's possession. In our considered view, all these are crucial matters which, as argued by the learned counsel for the parties, if an order for retrial is given will avail an opportunity to the prosecution to fill in gaps. ! In the circumstances, we are increasingly of the view that a retrial order is likely to prejudice the appellant as we held in the case of Fatehali Manji v. Republic [1966] EA 343, at page 344, 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 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 not be ordered where it is likely to cause an injustice to the accusedperson . " [Emphasis added]. 12

Being guided by the above authority, we do not find it appropriate to order for a retrial. In the event, we allow the appeal and order for the immediate release of the appellant from prison unless he is held therein for some other lawful cause. DATED at MUSOMA this 4th 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 6thday of October, 2025 in the presence of the Appellant in person and Mr. Jonas Samwel Kivuyo, learned State Attorney for the Respondent/Republic, Shabani Kinyai, Court Clerk; is hereby certified as a true copy of the original. C. M. MAGESA DEPUTY REGISTRAR COURT OF APPEAL M. MAGESA 13