Musa Ally Shaaban vs Republic (Criminal Appeal No. 000027097 of 2025) [2026] TZHC 3092 (11 June 2026)

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT ARUSHA CRIMINAL APPEAL NO. 000027097 OF 2025 MUSA ALLY SHAABAN .............................. COMPLAINANT / APPELLANT / APPLICANT VERSUS REPUBLIC .............................. RESPONDENT / DEFENDANT JUDGMENT NDUMBARO, J Before the District Court of Arusha at Arusha to be referred to as the trial court henceforth, the appellant was charged with the offence of stealing, contrary to sections 258 (1), (2) (a) of the Penal Code [Cap. 16 R.E. 2022]. It was alleged by the prosecution that on the 6 day of December 2023, at Njiro area within th the District and Region of Arusha, the accused stole cash amounting to Tanzanian Shillings Forty Million (Tshs. 40,000,000/=), the property of one Silvester Nyangabo. The appellant pleaded not guilty to the charge. To prove the charge, the respondent paraded a total of seven (7) witnesses; the appellant’s case was proved through the appellant. After hearing the evidence from both parties, the trial court was satisfied that the case against the appellant was proved beyond a reasonable doubt. The appellant was found guilty, convicted and sentenced to four (4) years' imprisonment. Upon Hon. DAFINA NDUMBARO Page. 1

completion of the sentence, the appellant was further ordered to refund the complainant, Silvester Nyangabo, the sum of Tanzanian Shillings 28,023,000/=. Aggrieved by this decision, the appellant has filed this appeal with the following grounds;

1. That, the trial Court erred in law and fact in convicting and sentencing the appellant, despite the case not being proved beyond a reasonable doubt.
2. That, the trial Court erred in law and fact in not finding that the delay in arraigning the Appellant and preparing the charge was contrary to section 33(1) of the Criminal Procedure Act [cap 20 R.E 2023] and created doubt on the prosecution's case.
3. That, the trial Court erred in law and fact in not finding that there was a variance between the evidence and the charge sheet, which ought to have been amended.
4. That, the trial Court erred in law and fact in convicting and sentencing the Appellant without analysing and evaluating the evidence adduced and exhibits tendered, resulting in an erroneous judgment against the Appellant.
5. The trial Court erred in law and fact by failing to evaluate and accord enough weight to the appellant's defence. When the matter was called on for hearing, the appellant appeared in person, unrepresented. The respondent, on the other hand, was represented Hon. DAFINA NDUMBARO Page. 2

by the learned Senior State Attorney, Ms Naomi Mollel. The parties prayed to dispose of the appeal by way of written submissions, which shall be summarised hereunder; The Appellant submitted that the prosecution failed to prove the charge of stealing beyond a reasonable doubt and urged the appellate court to consider grounds number 2, 3, 4, and 5 together in ground number 1. The appellant contended that there was an inordinate delay in arraigning him before the court. He submitted that although he was arrested on 13 December 2023, he was not brought before the court until 22 November 2024, approximately eleven months later. He argued that such delay contravened section 33(1) of the Criminal Procedure Act, which requires an arrested person to be brought before a court within twenty-four hours, and that the delay prejudiced his right to a fair hearing. The appellant further argued that the charge sheet was materially at variance with the evidence adduced at trial. He submitted that while the charge alleged the theft of cash amounting to TZS 40,000,000 belonging to Silvester Nyangabo, the prosecution produced exhibits consisting of mattresses, beds, mobile phones, sofa sets, and a motor vehicle registration card. He maintained that the discrepancy between the particulars of the charge and the exhibits tendered created uncertainty as to the subject matter of the alleged offence. Hon. DAFINA NDUMBARO Page. 3

Additionally, the appellant submitted that the charge sheet indicated that he alone committed the offence, whereas the prosecution evidence suggested that two persons were involved. He argued that the inconsistency regarding the number of offenders rendered the charge defective and affected the validity of the proceedings. The appellant also challenged the evidential value of the two Certificates of Seizure admitted as Exhibit P8. He submitted that he had objected to the signatures appearing on those documents on the ground that they were not his signatures. He contended that the trial court failed to conduct an inquiry into the authenticity of the disputed signatures or to obtain expert evidence for verification. According to the appellant, the failure to investigate the disputed signatures deprived the documents of probative value and rendered reliance upon them unsafe. On the basis of the foregoing submissions and the authorities cited, the appellant prayed that the appeal be allowed, the conviction quashed, and the sentence set aside. The respondent supported the appeal, arguing that the prosecution failed to prove the charge of stealing beyond a reasonable doubt. It was submitted that there was insufficient evidence to establish that PW1 was in possession of TZS 40,000,000 at the material time, as no documentary or independent evidence was produced to support the claim that the money was in the vehicle. Hon. DAFINA NDUMBARO Page. 4

The respondent further contended that the prosecution failed to identify the alleged stolen money, as no serial numbers, markings, or other distinguishing features were provided. Relying on Ramadhani Hamis Mkwembya vs. Republic , Criminal Appeal No. 396 of 2021, it was argued that ownership, possession, and identification of stolen property must be clearly proved. It was also submitted that PW1’s delay in checking for the money created uncertainty as to when and by whom it was taken. Additionally, the prosecution failed to establish a proper chain of custody for the exhibits, raising doubts about their authenticity and reliability. The respondent further argued that the evidence concerning the SIM card, mobile money transactions, and motor vehicle registration number T491 CZL was inadequate. In view of these shortcomings, the Respondent maintained that the prosecution had failed to discharge its burden of proof and prayed for the appeal to be allowed. In rejoinder, the appellant reiterated his submission in chief. I have carefully considered the record of appeal, the judgment of the trial court, the grounds of appeal, and the rival submissions advanced by both the appellant and the respondent. Since ground No. 1 challenges the sufficiency of the evidence upon which the conviction was founded, and the remaining grounds revolve around the same issue, I find it appropriate to consider all the grounds together. Hon. DAFINA NDUMBARO Page. 5

The law is settled that in criminal proceedings the burden of proving the guilt of an accused person rests entirely upon the prosecution and never shifts, save for a few statutory exceptions. The standard required is proof beyond a reasonable doubt. See the case of Syridion Michael vs Republic (Criminal Appeal No. 262 of 2022) [2024] TZCA 365 (15 May 2024). Therefore, for the offence of stealing contrary to sections 258(1) and (2) of the Penal Code, the prosecution was required to establish that the complainant owned or possessed the alleged property, that the property existed, that it was dishonestly taken, and that such taking was effected without the owner's consent. See Said Musa Soweni vs Republic (Criminal Appeal No. 93 of 2020) [2022] TZCA 218 (22 April 2022) The appellant contended that the prosecution failed to establish the existence and ownership of the alleged stolen sum of TZS 40,000,000. Significantly, the respondent, after reviewing the record, supported this ground of appeal and submitted that no documentary or independent evidence was tendered to prove that the complainant was in possession of the alleged amount of money at the material time. Upon examining the evidence on record, it appears that the prosecution relied principally on the testimony of PW1, who alleged that he had placed TZS 40,000,000 in a motor vehicle which was subsequently entrusted to the appellant. However, no bank withdrawal slip, cash receipt, financial record, or Hon. DAFINA NDUMBARO Page. 6

independent witness was called to corroborate the existence and possession of such a substantial amount of money. While the law does not invariably require documentary proof of ownership in every case of theft, where the alleged stolen property consists of a large sum of money, some credible evidence demonstrating the existence and possession of that money becomes essential. In the absence of such evidence, the allegation remains speculative. Moreover, the prosecution did not provide any identifying particulars of the alleged stolen money. There was no evidence regarding serial numbers, denominations, packaging, or any distinguishing feature capable of connecting the money allegedly recovered to the money said to have been stolen. Consequently, even assuming that money was recovered from the appellant, there was no evidential basis upon which the court could safely conclude that it was the same money allegedly belonging to PW1. The conduct of PW1 further raises doubt regarding the prosecution's case. According to the evidence, PW1 did not immediately verify the presence of the money upon receiving the vehicle. Instead, he continued with his activities and only checked for the money after being alerted by PW2 two days later. This delay created uncertainty regarding when the money allegedly disappeared and whether it was in the vehicle at the relevant time. Such uncertainty ought to have been resolved in favour of the appellant. Hon. DAFINA NDUMBARO Page. 7

The appellant also challenged the consistency between the charge sheet and the evidence adduced at trial. The charge alleged theft of cash amounting to TZS 40,000,000, yet the exhibits tendered consisted largely of household items, mobile phones, furniture, and a motor vehicle registration card. While recovered property may sometimes be tendered as circumstantial evidence to demonstrate the proceeds of crime, such evidence must still be linked to the alleged stolen property. In the present case, the prosecution failed to establish a clear link between the recovered items and the alleged stolen money. The exhibits therefore, did little to prove the particulars contained in the charge sheet. The respondent further questioned the chain of custody of the exhibits. The evidence of PW5 indicated that the exhibits were received in Kahama after being seized in Shinyanga. However, the prosecution failed to explain who transferred the exhibits, how they were transferred, and how their integrity was preserved during the process. The absence of such evidence leaves a gap in the chain of custody and diminishes the reliability of the exhibits produced before the court. The Court of Appeal of Tanzania in the case of Joseph Leonard Manyota vs Republic (Criminal Appeal No. 485 of 2015) [2017] TZCA 1029 (14 August 2017) had the following to say; “The Court has established that chain of custody of exhibits is said to be intact when there is proper documentation of the chronology of events in the handling of the exhibit from seizure, control, storage and transfer until tendering it in court at the trial.” Hon. DAFINA NDUMBARO Page. 8

Regarding the alleged recovery of funds through a SIM card said to belong to the appellant, the prosecution did not produce evidence proving ownership of the SIM card, the relevant mobile network records, or mobile money transaction statements linking the appellant to the alleged funds. Such evidence was necessary to establish a connection between the appellant and the alleged proceeds of the offence. Without it, the evidence remained incomplete and incapable of supporting a conviction. Similarly, with respect to motor vehicle registration number T491 CZL, the prosecution merely tendered a registration card without producing the vehicle itself or calling evidence from the alleged seller. The registration card alone was insufficient to establish ownership by the appellant or to prove that the vehicle had been acquired using proceeds of the alleged theft. The appellant further argued that the trial court relied on Certificates of Seizure whose signatures he had expressly disputed. The record reveals that the appellant challenged the authenticity of the signatures appearing on those documents. Once the authenticity of a signature becomes a material issue, the burden rests upon the party relying on the document to establish its genuineness. No handwriting expert was called, and no inquiry was conducted by the trial court to resolve the dispute. In those circumstances, the evidential value of the certificates was substantially weakened, and it was unsafe for the trial court to place significant reliance upon them. Hon. DAFINA NDUMBARO Page. 9

Concerning the complaint of delayed arraignment, the appellant submitted that he was arrested on 13 December 2023 but was only brought before court on 22 November 2024. Section 33(1) of the Criminal Procedure Act requires an arrested person to be brought before a court as soon as reasonably practicable. While a violation of that provision does not automatically vitiate a criminal trial, see the decision of the Court of Appeal of Tanzania in Eliapenda Zephania Zakaria @ Kicheche vs Republic (Criminal Appeal No. 675 of 2021) [2024] TZCA 728 (14 August 2024). However, an unexplained and prolonged delay may affect the credibility of the prosecution's case and the fairness of the proceedings. In the present matter, the delay was substantial, and no satisfactory explanation appears on record. Although this ground alone may not necessarily invalidate the proceedings, it adds to the doubts already arising from the evidential deficiencies discussed above. As a first appellate court, I am duty-bound to re-evaluate the entire evidence and draw my own conclusions while bearing in mind that I did not have the opportunity of seeing or hearing the witnesses testify. Having done so, I am unable to find that the prosecution proved beyond reasonable doubt that the complainant was in possession of TZS 40,000,000, that the appellant stole the said money, or that the exhibits tendered were sufficiently connected to the alleged offence. Hon. DAFINA NDUMBARO Page. 10

The cumulative effect of the inconsistencies, evidential gaps, absence of proof of ownership and possession of the alleged stolen money, weak chain of custody, and uncertainty surrounding the recovery evidence creates substantial doubt in the prosecution's case. It is a cardinal principle of criminal justice that where doubt exists, it must be resolved in favour of the accused person. Accordingly, I find merit in Ground No. 1 and, consequently, the remaining grounds of appeal. The conviction was unsafe and cannot be allowed to stand. The appeal is therefore allowed. The conviction is quashed and the sentence of four years' imprisonment together with the order for refund of TZS 28,023,000/= is hereby set aside. The appellant shall be released forthwith unless he is otherwise lawfully held. It is so ordered. Dated at ARUSHA this 11th of June 2026 . D. D NDUMBARO JUDGE OF THE HIGH COURT Hon. DAFINA NDUMBARO Page. 11