Zakaria Abson Kiwale vs Republic (Criminal Appeal No. 232 of 2022) [2024] TZCA 1084 (8 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: WAMBALI. J.A. KENTE. 3.A. And MGONYA. J.A.^ l CRIMINAL APPEAL NO. 232 OF 2022 ZAKARIA ABSON KIWALE ............................ ........... ...............APPELLANT VERSUS THE REPUBLIC................................................................... RESPONDENT (Appeal from the decision of the Court of the Resident Magistrate of Arusha with Extended Jurisdiction at Arusha) (Massam. SRM- Ext. Jur.^ Dated the 10th day of May, 2022 in Criminal Appeal No. 89 of 2021 JUDGMENT OF THE COURT 28thOctober & 8th November, 2024 WAMBALI. J.A.: The appellant, Zakaria Abson Kiwale, who was the fourth accused together with five others; namely, Juma Mahumba, Maloga Machiwa, Mazengo Malongo Mahumpa and. James Yassi Lati (the first, second, third and fifth accused respectively), were on 18th June, 2018 jointly charged with two counts involving economic offences and one count concerning unlawful possession of weapons in certain circumstances. It is on the record of appeal that, they respectively pleaded not guilty to all counts when the charge was read over and explained to them.

As intimated above, the first and second counts which related to unlawful possession of government trophy were predicated respectively under section 86 (1) (2) (c) (iii) and 86 (1) (2) (b) of the Wildlife Conservation Act, Cap 283 (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, Cap 200 (the EOCCA). It was categorically alleged in the particulars in respect of the first and second counts that, on 19th May, 2018 at Orkiu-Ngabor area within Kiteto District Manyara Region, the appellant and the four others mentioned above, were jointly and respectively found in unlawful possession of Greater Kudu meat, equivalent to one killed Greater Kudu valued USD 2200 equivalent to TZS 4,958,800.00 and Dik Dik meat valued USD 250 equivalent to TZS 563,500.00, the property of the Government of the United Republic of Tanzania without a permit from the Director of Wildlife. The third count involved unlawful possession of weapons in certain circumstances contrary to section 103 of the WCA read together with Paragraph 14 of the First Schedule to and sections 57 (1) and 60 (2) of the EOCCA. The particulars revealed that on the stated date and place, the appellant and four others were jointly found in possession of unlawful

weapons, namely, one Panga, one nyengo (mundu) in circumstances which raised reasonable presumption that they had used them in commission of the charged offences. It is noteworthy that before the trial commenced, the first, second and third accused who were on bail disappeared to an unknown place to date. Therefore, only the appellant and fifth accused participated during the trial until the decision was delivered by the trial court. The prosecution case was supported by four witnesses; namely, Fredrick Mnyumbilwa (PW1), Elidaima Akyoo (PW2), Hassan Hamna (PW3), Aziz Athuman (PW4) together with six exhibits. These were, Trophy Valuation Form (exhibit PI), Inventory Form (exhibit P2), the Handing Over Certificates (exhibits P3 and P4), two machetes (exhibit P5) and the Certificate of Seizure (exhibit P6). Basically, the substance of the prosecution evidence was that, the appellant and four others were arrested by PW2 and PW4 on 19th May, 2018 at night hours while on normal patrol at Orkin-Ngabur area within Kiteto District, Manyara Region in possession of the alleged government trophies and weapons. A Certificate of Seizure (exhibit P6) was filed and signed by the suspects and witnesses, and later, it was handed to PW2 at Arusha KDU offices. PW1 conducted the valuation and prepared the

Valuation Form and Inventory Form which were admitted at the trial as exhibits PI and P2 respectively. Consequently, the appellant and others were arraigned before the trial court to face the charges intimated above. The appellant and the fifth accused (not a party to this appeal) who knew each other as they worked together, defended themselves and denied the allegation. In a nutshell, they testified that they were in the forest sewing bags of charcoal when they were invaded and attacked by Maasai people who took them to the camp Boma, and later reported to Arusha KDU Office that they were arrested as poachers. They stated further that though they denied the allegation, they were charged in court in connection with the said offences. At the climax of the trial, the trial court fully believed the prosecution story and found that the case against the appellant and four others was proved beyond reasonable doubt. It thus convicted them in respect of all three counts and imposed a sentence of 20 years imprisonment for each count, to run concurrently. Aggrieved, the appellant appealed to the High Court at Arusha in Criminal Appeal No. 98 of 2021. However, the respective appeal was transferred to the Court of the Resident Magistrate of Arusha and registered as Criminal Appeal No. 89 of 2021 where it was presided over

by Massam, Senior Resident Magistrate (SRM) with Extended Jurisdiction (as she then was). As it turned out, the appeal was dismissed, hence this second appeal supported by a memorandum of appeal comprising nine grounds. The appellant also lodged written submission and the list of authorities to support the appeal. At the hearing of the appeal, the appellant appeared in person, unrepresented, whereas, the respondent Republic was represented by Ms. Lilian Kowero, Ms. Naomi Mollel and Ms. Eunice Makala, learned Senior State Attorneys. It is noteworthy that before the hearing, it was apparent that the disposal of the appeal centered on the complaint of the appellant in the second ground. The respective ground is to the effect that the trial court lacked jurisdiction to try the case for lack of certificate of the Director of Public Prosecutions (the DPP) transferring the case to it as required under section 12 (3) of the EOCCA. The appellant therefore urged the Court to consider his written submission and the list of authorities in support of the respective ground, allow the appeal and set him at liberty. Responding on behalf of the respondent Republic, Ms. Makala supported the appellant's appeal in respect of the second ground. She

argued that, according to the record of appeal, on 18th June, 2018, the prosecution filed a charge sheet which was accompanied by a copy of the consent of the DPP duly issued by the prosecuting State Attorney Incharge of Arusha Region under section 26 (2) of the EOCCA. However, she argued, there was no certificate of transfer from the DPP conferring jurisdiction to the Court of the Resident Magistrate of Arusha (the trial court), in terms of section 12 (3) of the EOCCA. She added that the said certificate was important because ordinarily, in terms of section 3 of the EOCCA, it is the High Court which is mandated to try economic offences. However, she added, such jurisdiction can also be issued to the subordinate court, in terms of section 12 (3) of the EOCCA. In her submission, since the charges were read over and explained to the appellant and four others who were called upon to enter a plea without the certificate of the DPP, the plea and the subsequent trial were tainted because the trial court had no jurisdiction. She added that, this was notwithstanding the fact that there was a consent of the DPP to prosecute the appellant and four others. On the other hand, the learned Senior State Attorney submitted that, though a perusal of the original case file indicates that there are other copies of consent and certificate dated 14th February, 2019, the

respective documents do not seem to have been formerly endorsed and admitted in the record of proceedings of the trial court contained in the record of appeal. Thus, they cannot be of any assistance. In the event, Ms. Makala submitted that as the trial court lacked jurisdiction to try the case, the proceedings of both the trial and first appellate courts are a nullity. Ultimately, she prayed that the respective proceedings be nullified, convictions quashed and sentences set aside in terms of section 4 (2) of the Appellate Jurisdiction Act, Cap 141 (the AJA). To support her stance, she made reference to the decision of the Court in Matheo Ngua and Three Others v. The Republic (Criminal Appeal No. 452 of 2017) [2020] TZCA 153 (3 April 2020, TANZLII). Regarding the way forward upon nullification of the proceedings of the two lower courts for lacking jurisdiction, Ms. Makala submitted that ordinarily, the appropriate remedy would be to request the Court to order a retrial. Nevertheless, in the circumstances of the case at hand, she argued, a retrial will not be in the interest of justice. This is because, she explained, having weighed the factual setting in the record of appeal, there is no doubt that the prosecution evidence is insufficient to sustain conviction against the appellant. Particularly, she stated, the government trophies which were allegedly seized at the scene of crime in possession

of the suspects indicated in exhibit P6, were not handled properly in accordance with the law. She emphasized that, the order of the Magistrate authorizing disposal of the seized trophies reflected in the Inventory Form (exhibit P2), was made in the absence of the appellant and four others. Thus, exhibit P2 will not be useful to support the prosecution case. She explained further that, if exhibit P2 which forms substance of the evidence of the prosecution case is discounted, the remaining evidence will not suffice to support conviction of the appellant. In the circumstances, the learned Senior State Attorney prayed that the appeal be allowed and the appellant be set at liberty. It is beyond controversy that in terms of sections 3 (1) of the EOCCA, the jurisdiction to try and determine cases involving economic offences is vested in the High Court, Corruption and Economic Crimes Division. However, the DPP or a duly authorized officer can issue consent to prosecute and a certificate conferring jurisdiction to subordinate courts to try and determine cases for such offences in terms of sections 26 (1) (2) and 12 (3) of the EOCCA respectively. In this regard, lack of consent and a certificate vitiates the proceedings. In the case at hand, we entirely agree with the learned Senior State Attorney's submission in support of the second ground of appeal that, the

appellant's trial was irregular as the trial court had no jurisdiction to try the case for lack of a certificate of transfer issued by the DPP or his duly authorized officer as required by the law. It is plain that no certificate of the DPP was filed and legally admitted by the trial court. Thus, the trial was rendered a nullity. For this stance/ see the decisions of the Court in Aloyce Joseph v. The Republic (Criminal Appeal No. 35 of 2020) [2022] TZCA 771 (5 December 2022, TANZLII), John Julius Martin & another v. The Republic (Criminal Appeal No. 42 of 2022) [2022] TZCA 789 (3 December 2022, TANZLII) and Salum s/o Andrew Kamande v. The Republic Criminal Appeal No. 513 of 2020) [2023] TZCA 133 (22 March 2023, TANZLII). Indeed, in Adam Seleman Njalamoto v. The Republic (Criminal Appeal No. 196 of 2016) [2018] TZCA 373 (1 March 2018, TANZLII), the Court stated: "In view of this legal position, the appellant was prosecuted without consent and a certificate of transfer by the Director of Public Prosecutions, in the result, we are of the view that the proceedings, convictions and sentences in the trial and the first appellate courts were illegal and a

On the other hand, we are of the settled view that, though the original case file contains copies of a consent and certificate of transfer dated 14th February, 2019, the same cannot be of any assistance because; one, the appellant and four others were called upon to plea to the charges on the first day they were arraigned, that is, 18th June, 2018 without the certificate of transfer by the DPP or duly authorized officer conferring jurisdiction on the trial court. Two, according to the record of appeal, though the respective documents are in the original file, there is no indication that they were duly admitted by the trial court and legally introduced in the proceedings. Indeed, it is no wonder that they are not part of the record of appeal. In the circumstances, we allow the second ground of appeal. With regard to the way forward, having considered the factual settings in the record of appeal, we have no hesitation to join hands with the learned Senior State Attorney submission that, a retrial will not be in the interest of justice. We accordingly refrain from ordering it. In the result, as the second ground suffices to dispose of the appeal, we allow it.

Consequently, in terms of section 4 (2) of the AJA, we revise and nullify the proceedings of the trial and first appellate courts, quash the convictions and set aside the sentences imposed on the appellant. In the end, we order that the appellant be released from custody immediately, unless his incarceration is for other lawful causes. DATED at ARUSHA this 7th day of November, 2024. F. L. K. WAMBALI JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Judgment delivered this 8th day of November, 2024 in the presence of the appellant in person and Mr. Mahfudhu Mbagwa, learned State Attorney for the respondent/Republic is hereby certified as a true li