Andrea Alphonce Ombay vs Republic (Criminal Appeal No. 000027102 of 2025) [2026] TZHC 3093 (11 June 2026)

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT ARUSHA CRIMINAL APPEAL NO. 000027102 OF 2025 ANDREA ALPHONCE OMBAY .............................. COMPLAINANT / APPELLANT / APPLICANT VERSUS REPUBLIC .............................. RESPONDENT / DEFENDANT JUDGMENT NDUMBARO, J Before me is an appeal preferred by the appellant challenging the decision of the District Court of Longido at Longido (the trial Court) on the following grounds; 1. That the trial Court erred in law and fact in not finding that the weight, which is an essential element constituting the offence under section 15A(1)(2)(c) of the Drugs Control and Enforcement Act [cap 95 R.E 2022], was not proved. 2. That, the trial Court erred in law and fact in not finding that the bag, which is alleged by PW7 to have been hidden in the bush by the appellant, was not the same as that one, which was seized and subsequently tendered in Court as evidence. Hon. DAFINA NDUMBARO Page. 1 3. That, the trial Court erred in law and fact in not finding that the case was not proved beyond a reasonable doubt. 4. That, the trial Court erred in law and fact in not finding that the unexplained delay in arraigning the Appellant in Court constituted a deliberate breach of section 33(1) of the Criminal Procedure Act [cap 20 R.E 2023], which requires there to be a prompt arraignment of a suspect before the Court. 5. That, the trial Court erred in law and fact in overlooking serious major contradictions in the evidence adduced by prosecution witnesses, which affected the credibility of the case. Briefly, the appellant herein was the accused before the trial court charged with the offence of trafficking in narcotic drugs c/s 15A (1) and (2) (c) of the Drugs Control and Enforcement Act [Cap. 95 R.E 2019] as amended by section 19 of The Written Laws (Miscellaneous Amendments) (No.9) Act No. 9 of 2021. It was alleged by the prosecution that, on the 16 day of October th 2024 at Lerang'wa village within Longido District in Arusha Region, the accused person was found trafficking in Narcotic Drugs, namely Catha Edulis, commonly known as "Mirungi", weighing 5.80kg. The appellant pleaded not guilty to the charge. Consequently, the trial court proceeded to hear evidence from both parties. Upon considering the testimonies and evidence presented, the trial court was satisfied that the respondent had proved the charge against the appellant beyond reasonable doubt. Accordingly, the appellant was found Hon. DAFINA NDUMBARO Page. 2 guilty, convicted, and sentenced to serve twenty (20) years' imprisonment. When the matter was called on for hearing, the appellant appeared in person, unrepresented; the respondent, on the other hand, was represented by the learned Senior State Attorney, Ms Naomi Mollel. With consensus, the appeal was disposed of by way of written submissions summarised hereunder; The appellant submitted that the prosecution failed to prove the charge of trafficking in narcotic drugs beyond a reasonable doubt as required under section 3(2)(a) of the Law of Evidence Act and the established principles governing criminal trials. It was argued that any doubt arising from the evidence ought to have been resolved in favour of the appellant. The appellant contended that the prosecution failed to establish the essential ingredients of the offence, namely that the appellant had possession or control of the alleged narcotic drugs, that the substance in question was properly proved to be a narcotic drug, that its weight was accurately ascertained, and that the chain of custody from seizure to destruction was properly maintained. On the issue of the charge sheet, the appellant submitted that it was fatally defective for failure to specify the particular mode of trafficking allegedly employed by the appellant. It was argued that the particulars merely stated that the appellant was “found trafficking” in narcotic drugs without disclosing whether the alleged trafficking consisted of possession, conveyance, storage, Hon. DAFINA NDUMBARO Page. 3 delivery, distribution, sale, or any other mode recognised under the Drugs Control and Enforcement Act. The appellant maintained that the omission deprived the appellant of sufficient information regarding the nature of the accusation and thereby prejudiced his ability to prepare an effective defence. Reliance was placed on several decisions of the Court of Appeal holding that a charge of trafficking which does not specify the mode of trafficking is incurably defective and renders the proceedings a nullity. The appellant further submitted that the prosecution failed to prove the weight of the alleged narcotic drugs, which constituted an essential element of the offence under section 15A (1) and (2)(c) of the Drugs Control and Enforcement Act. It was argued that the Government Analyst did not indicate whether the packaging materials, including the sulphate bag, newspapers, and cello tape, had been removed before weighing the exhibits. According to him, the prosecution therefore failed to establish the actual weight of the alleged narcotic substance and consequently failed to prove a material ingredient of the offence. The appellant also argued that material contradictions existed in the prosecution's evidence regarding the description of the bag allegedly recovered from the appellant. It was submitted that whereas one witness described the bag as white with a green ribbon, another described it as green and blue, while other witnesses referred to it as green in colour. The appellant contended that these inconsistencies cast doubt on whether the exhibit Hon. DAFINA NDUMBARO Page. 4 produced in court was the same item allegedly recovered at the scene and thereby undermined the credibility of the prosecution's case. Regarding the appellant’s arraignment, the appellant submitted that he was arrested on 16 October 2024 but was not first brought before the court until th 23 January 2025. It was argued that the delay was unexplained and rd contravened section 33(1) of the Criminal Procedure Act, which requires prompt arraignment of suspects. The appellant maintained that the unexplained delay prejudiced him and further weakened the prosecution's case. In conclusion, the appellant submitted that the cumulative effect of the foregoing defects, inconsistencies, and procedural irregularities was that the prosecution failed to discharge its burden of proving the charge beyond a reasonable doubt. The appellant therefore urged the Court to allow the appeal, quash the conviction, set aside the sentence, and order his acquittal. On the part of the respondent, the learned State Attorney submitted that the appeal lacked merit and that the conviction and sentence imposed by the trial court ought to be upheld. On the first ground of appeal, it was submitted that the prosecution had proved the offence beyond a reasonable doubt. Counsel argued that the evidence of PW7 established that the appellant was seen carrying and concealing suspicious luggage containing narcotic drugs, and that she Hon. DAFINA NDUMBARO Page. 5 immediately reported the matter to PW9. It was further submitted that the appellant subsequently led police officers to the very location where the luggage had been hidden, thereby establishing his constructive possession of the narcotic drugs. Counsel contended that the evidence of PW7, PW9, and PW10 was consistent and credible on this aspect. Regarding the nature of the substance recovered, it was submitted that PW8, upon scientific examination, confirmed that the exhibits contained Cathinone and Cathine, substances found in Mirungi (Khat), and that the Government Chemist Report was tendered in evidence. Counsel further submitted that the chain of custody was properly maintained and established through the testimonies of PW1, PW2, PW3, PW4, and PW8. Accordingly, it was argued that the prosecution had discharged its burden of proof to the required standard. With respect to the second ground of appeal, namely that the charge was defective for failure to specify the mode of trafficking, learned counsel submitted that such omission was not fatal in the circumstances of the case. Counsel argued that the offence of trafficking is broadly defined under the law to include, among other acts, possession, conveyance, transportation, storage, delivery, and distribution of narcotic drugs. It was submitted that the evidence adduced at trial clearly demonstrated that the appellant transported narcotic drugs using a motorcycle and was found in possession thereof. Counsel maintained that these facts sufficiently disclosed the mode of trafficking relied upon by the prosecution. Reliance was placed on the decision in Kobina Kyei Hon. DAFINA NDUMBARO Page. 6 Danso v Republic, Criminal Appeal No. 63 of 2024, wherein the Court of Appeal held that defects in a charge may be cured by the evidence on record and that no prejudice is occasioned where an accused person fully understands the charge and is afforded a fair opportunity to defend himself. Counsel therefore submitted that the appellant suffered no prejudice and that the alleged defect did not occasion a miscarriage of justice. As regards the third ground of appeal concerning the alleged delay in arraignment, counsel submitted that the reasonableness of any delay must be assessed in light of the circumstances of each case. It was argued that offences involving narcotic drugs ordinarily require extensive investigations, including forensic analysis and preparation of expert reports. Counsel contended that the period taken before arraignment was reasonable in view of the nature and complexity of the offence. Reliance was placed on the decision in Shabani Ally Athuman v Republic, Criminal Appeal No. 151 of 2021, where the Court of Appeal held that, given the seriousness of the offence, the period taken before arraignment was reasonable. Counsel therefore submitted that this ground was equally devoid of merit. In conclusion, the learned State Attorney submitted that the prosecution had proved its case beyond reasonable doubt and that the trial court properly convicted and sentenced the appellant. The Court was accordingly urged to dismiss the appeal in its entirety and uphold both the conviction and sentence. Hon. DAFINA NDUMBARO Page. 7 I have carefully considered the grounds of appeal, the rival submissions of the appellant and the respondent, as well as the entire record of the trial court. Since grounds Nos. 1, 2, 3 and 5 are interrelated, I shall determine them together before addressing Ground No. 4 separately. Commencing on whether the prosecution proved the charge beyond a reasonable doubt. The appellant contends that the prosecution failed to prove the offence of trafficking in narcotic drugs beyond a reasonable doubt. Specifically, he argues that the prosecution failed to establish his possession of the alleged narcotic drugs, failed to prove the weight of the drugs, failed to maintain the chain of custody of the exhibits, and that material contradictions existed in the prosecution's evidence regarding the identity of the bag recovered. The law is settled that in criminal proceedings the burden rests throughout upon the prosecution to prove every essential ingredient of the offence charged beyond reasonable doubt, as it was stated in the case of Pascal Yoya Maganga Vs Republic Criminal Appeal No. 248 of 2017 unreported. The burden never shifts to the accused person, save in a few statutory exceptions which are not applicable in the present case. In the instant case, PW7 was central to the prosecution's case. According to her testimony, she observed the appellant carrying a suspicious bag white in colour with green ribbon and concealing it in a bush. She immediately reported Hon. DAFINA NDUMBARO Page. 8 the matter to PW9, the Village executive chair's office, and he never went back to the scene. It was the testimony of PW10 that he apprehended the accused and led them to the Ward executive chair's office for interrogation. PW9 informed the police, who went to the very location where the bag had been hidden. The accused led to the recovery of the bag, which was found to contain plant materials suspected to be narcotic drugs. It was also the testimony of PW9 that, after being told about the incident by PW7, he informed the people's militia, who went to the scene and asked them to watch so as to find who would come and collect the said bag. During the cross-examination, PW9 testified that the accused was arrested in his workplace garage by the militia men and brought to their office for interrogation. They were taken to the scene of crime, policemen were informed of the incident, and they arrived at the scene. It was the testimony of PW4, a police officer, to have found the accused apprehended in the scene by the militia men, and the accused led to the discovery of the said Narcotic drugs in the bush. It was the testimony of the accused in the trial court proceedings that he was arrested in his workplace, claiming to have with conflict with village readers and to have not committed the offence. Analysing the above testimony starting that of PW9, the village chair that he informed three people, militia named Lowasa, Samwel and Kesyama and let them guard the scene so as to find if someone will come to take the claimed drugs; and his testimony during cross examination testified that the accused Hon. DAFINA NDUMBARO Page. 9 was apprehended by people militia and brought to his office for interrogation, thereafter to the scene, to which they led discovery; and PW10 militia Lowasa confirmed to have arrested appellant at his place of work. The question is as to what time the people's militia left the scene and went to apprehend the accused at his workplace, and what was the status of the said white bag with green ribbon testified by PW7, to which PW1 and PW2 claimed to have received a green bag and not a white bag. The contradiction of PW9's own statements goes to the root of the matter, affecting the credibility of the witness, as it was stated in the recent case of Jabir Chapakazi vs Republic (Criminal Appeal No. 615 of 2022) [2026] TZCA 342 (24 March 2026), page 12. It was also the testimony of the appellant that the charge was not specific, as to whether he was charged with trafficking of narcotic drugs or possession of narcotic drugs. It is apparent that the law recognises various modes of trafficking, including transporting, conveying, storing, delivering, distributing and possessing narcotic drugs. I also had time to go to the charge sheet whereby the accused was charge by the offence of trafficking narcotic drugs 5.80 Kg). Extracting from the previous analysis, it is apparent that the drugs were found in the bush after being told by PW7, Ms Rose; the accused was arrested in his workplace/garage and brought to the scene, and Ms Rose informed the chair where the drugs were located. It is my view that possession in drug cases is not limited to physical custody; it extends to Hon. DAFINA NDUMBARO Page. 10 cases where the accused has control or dominion over the said drugs, that is, constructive possession; the drugs ought to be found in the premises on which the accused had control. Referring to this matter, the drugs were found in the bush, and it was not proved as to whether the accused had control over that place. That said, the prosecution ought to prove the said constructive possession of the drugs, that the accused had knowledge and control over the drugs. It is my further view that since the drugs were not seized in the place to which the accused had control or dominion, and the constructive possession was not proved by the prosecution in the trial court. In addition, the fact that initially two people were mentioned to have been involved in holding the said drugs, Mr Safari and the appellant herein, and nothing has been said about Mr Safari as a co-accused, creates doubt, which benefited the accused. Having gone through trial court proceedings, I find no fault with the nature of the substance discovered. PW8, a Government Analyst, testified that upon scientific examination of the submitted exhibits, he detected Cathinone and Cathine, substances commonly found in Catha Edulis (Mirungi or Khat). His report was tendered in evidence without any successful challenge as to its authenticity or scientific validity. The scientific evidence, therefore, established that the substance was indeed a narcotic drug within the meaning of the law. Hon. DAFINA NDUMBARO Page. 11 The appellant further challenged the chain of custody. I have examined the evidence of PW1, PW2, PW3, PW4 and PW8 concerning the handling of the exhibits from the time of recovery until laboratory analysis. The evidence demonstrates that the exhibits were discovered, preserved, submitted for analysis and produced in court through identifiable custodians. The appellant pointed to discrepancies regarding the colour and appearance of the bag, referring to the trial court record; it was testimony of PW7 Rose that the bag was white with green ribbon, while PW1 and PW2, both policemen, testified the bag was green. Having in mind that PW7 is the key witness, claimed to have witnessed the appellant and his fellow motor vehicle driver hiding a white bag with green ribbon, and she never came back to the scene upon arrival of people militia and police; and later on the said police testified to have received green bag; such discrepancies touched key exhibit and in my view, affect the substance of the prosecution case. The position was well explained in the recent case of Lwiba Amanyisye @ Haonga vs Republic (Criminal Appeal No. 413 of 2023) [2026] TZCA 303 (11 March 2026), page 10, whereby the trial court treated variation in registration as immaterial, but the Court of Appeal considered it very crucial and created doubt. I now move on to whether the weight of the narcotic drugs was proved. The appellant submitted that the prosecution failed to prove the actual weight of the narcotic drugs because the Government Analyst did not expressly state whether the packaging materials were removed before weighing the exhibits. Hon. DAFINA NDUMBARO Page. 12 I have considered this argument carefully. The charge alleged that the appellant trafficked Mirungi, weighing 5.80 kilograms. The Government Analyst's report and oral testimony confirmed the weight of the exhibits submitted for examination. But it was not explained that after taking the sample, the weighing remains the same, and the record does not disclose the fact to create doubt. On the issue of delay to be arraigned before the court to vitiate the proceedings. The appellant argued that he was arrested on 16 October 2024 but was not brought before court until 23 January 2025 and that such delay violated section 33(1) of the Criminal Procedure Act. Undoubtedly, the law requires a suspect to be brought before a court without unnecessary delay. Compliance with this requirement is important in safeguarding the constitutional rights of arrested persons. In the matter at hand, the accused was delayed for almost three months; the prosecution in the trial court did not state as to why the accused was delayed in being arraigned before the court to cast doubts on the veracity of evidence of witnesses, as it was stated in the recent case of Petro Safari @ Manyika & Another vs Republic (Criminal Appeal No. 277 of 2024) [2026] TZCA 493 (6 May 2026) page 14 and 15. Having re-evaluated the entire evidence on record, I am satisfied that the prosecution did not prove beyond reasonable doubt that the drugs were not found in his possession, but rather in the bush; the testimony of PW9 contradicts this. The unexplained delay denied the accused constitutional Hon. DAFINA NDUMBARO Page. 13 right and affects the legality of the conviction. Accordingly, I find merit in this appeal; hence, I set aside the sentence and conviction of the Criminal Case No. 000002152 of 2025 at the District Court of Longido, imposed against the appellant. The appellant is released from custody unless lawfully ordered otherwise. It is so ordered. Dated at ARUSHA this 11th of June 2026 . D. D NDUMBARO JUDGE OF THE HIGH COURT Hon. DAFINA NDUMBARO Page. 14