Ally Mbwana vs Republic (Criminal Appeal No. 24143 of 2025) [2026] TZHC 3111 (10 June 2026)

1 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB-REGISTRY AT DAR ES SALAAM CRIMINAL APPEAL NO. 24143 OF 2025 (Arising from the decision of the trial District Court of Temeke at Temeke (Hon. J. M. NGEKA, RM I) in Criminal Case No. 158 of 2023 ) ALLY MBWANA ………………………………… .. …………………... APPELLANT VERSUS THE REPUBLIC……………………………………………………... RESPONDENT JUDGMENT Date of last order: 05/06/2026 Date of Judgment: 10/06/2026 A.A. MBAGWA, J. This is an appeal against the convictions and sentences of the trial District Court of Temeke at Temeke (Hon. J.M Ngeka, RM I), dated 17 th October 2024 . The appellant, together with Yahaya Abdallah Said and James Nyamwezi Tangazo, were arraigned before the trial Court on different counts. They stood as the 1 st , 2 nd and 3 rd accused, respectively. It is important to mention at this point that Yahaya Abdallah Said and James Nyamwezi 2 Tangazo, the 2 nd and 3 rd accused, are not parties to the present appeal as they were found not guilty and acquitted by the trial Court. The 1 st accused, who is now the appellant, was charged with two counts of stealing contrary to Sections 258(1), 258(2)(a), and 265 of the Penal Code. It was alleged that Ally Mbwana, the appellant, stole properties of Ramadhan Mohamed and Josephin Maurice valued at TZS 12,197,600 and TZS 3,200,000, respectively. Further, the appellant was charged with two counts of malicious damage to property. It was contended that the appellant damaged motor vehicles registration numbers T.267 DUS (Toyota Corolla Arion) and T.157 DST (Toyota Harrier), the properties of two complainants respectively; Lastly, the appellant was charged with Money Laundering contrary to Sections 12(1)(d) and 13(1)(a) of the Anti-Money Laundering Act, read together with the relevant provisions of the Economic and Organised Crime Control Act. The particulars of the offence were to the effect that the appellant used proceeds of the theft to purchase a motorcycle registration number MC 503 DQZ, make Boxer. 3 The 2 nd and 3 rd accused persons were charged separately with receiving stolen properties under the 6 th and 7 th counts contrary to Section 311(1) of the Penal Code. The accused persons denied the charge; hence, a full trial followed. In a bid to establish the allegations, the prosecution’s side called a total of five witnesses. Besides, the prosecution tendered seven documentary exhibits and two physical exhibits. In their defence, all accused persons testified on their own behalf and did not call any witnesses, nor did they produce any exhibits. In a nutshell, a brief account of the prosecution’s case was to the following effect: PW1, Josephine Morice, and PW2, Ramadhan Mohamed, the complainants, were on 24 th January 2023, at Tuangoma. They parked their motor vehicles, make Harrier T. 157 DSZ and Allion T. 267 DUS, and entered the fence where they were supervising construction activities. Sadly, the two cars left outside the fence were broken into by unknown persons who stole cash, mobile phones, identity documents, bank documents, and other valuables. PW1 later identified a Samsung J6 mobile phone recovered by the police as one of the items stolen during the incident. 4 PW3, Shaban Imran, testified that while inside the classroom (madrassa), teaching, some students who had gone outside for a short call alerted him that some individuals were breaking vehicle windscreens. He thus went outside and observed a motorcycle leaving the area. However, he was unable to identify either the assailants or the registration number of the motorcycle. PW3 thus instructed his students to inform PW1 and PW2 of the incident. PW1 and PW2 came out only to find that the cars had been broken and the properties therein had been stolen. They thus reported the matter to the police, and the investigation started. According to PW5, D/Sgt Edwin, the investigating officer, they traced PW1’s Samsung J6 phone and found it with one Latifa Hamis. It was alleged that Latifa told PW5 that she bought the phone from the 2 nd accused. Therefore, PW5 arrested the 2 nd accused, who mentioned the 3 rd accused. According to PW5, the 3 rd accused mentioned the appellant; hence his arrest. It was further the testimony of PW5 that upon arrest, the appellant admitted involvement in the offence and disclosed that part of the stolen proceeds had been used to purchase the motorcycle registration number MC 503 DQZ. 5 More so, PW4, Mohamed Saidi Sutu, testified that the appellant had entrusted him with the motorcycle registration number MC 503 DQZ under a commercial arrangement. The prosecution tendered several exhibits, including seizure certificates, the recovered mobile phone, the motorcycle ownership documents, and caution statements of the 1 st and 2 nd accused persons. Subsequently, the accused persons were arraigned in Court. In defence, the accused persons denied all the allegations put forth against them . The appellant stated that he was summoned to Mbagala Police Station in relation to his motorcycle, which had been entrusted to a rider. He went on that the police demanded the motorcycle's registration documents and subsequently detained him. According to the appellant, he remained in custody for several days before he was arraigned before the Court and charged with the alleged offences. On his part, the 2 nd accused testified that he was contacted by police and questioned regarding a Samsung mobile phone allegedly recovered from another person. He denied any involvement in the offences and asserted 6 that he was assaulted and forced by police to disclose information concerning the phone before being detained and eventually charged. Similarly, the 3 rd accused denied the allegations. He testified that he was arrested by police while at his workplace, subjected to assault during interrogation, and detained for several days before his arraignment. Upon evaluation of the evidence, the trial Court found that the prosecution had proved its case against the 1 st accused person, the appellant, beyond a reasonable doubt. It consequently convicted him on all counts he stood charged with and sentenced him to 24 months in jail or fine TZS 500,000/= for each of the offences of stealing, 18 months in jail or fine TZS 1,000,000/= for each of the two offences of malicious damages to property, and five years in jail or fine TZS 7,920,000/= for the count of money Laundering. As hinted above, the 2 nd and 3 rd accused persons were acquitted of the charges for insufficient evidence. Discontented with both conviction and sentence, the appellant has come to this Court to challenge the trial Court’s decision. He filed a petition of appeal, containing the following grounds: 7 1. THAT, the learned magistrate grossly erred in both law and fact by holding that there was stealing from two motor vehicles yet the court never saw the said motor vehicles. 2. THAT, the learned trial magistrate grossly erred in both law and fact by convicting the appellant on the two charges of malicious damages of properties (two cars) which the court had no opportunity to see them physically or their pictures. 3. THAT, the learned trial magistrate was biased while tendering his judgment for acquitting the appellant's co-accused who were alleged to have sold the alleged phone to one RATIFA, but based on some phone or evidence to convict the appellant. 4. THAT, the learned trial magistrate grossly erred in both law and fact by convicting the appellant based on a retracted and repudiated caution statement (Exh P6). 5. THAT, the learned trial magistrate grossly erred in both law and fact by convicting the appellant based on a case where there was a variance between the charge sheet and the evidence adduced. 6. THAT, the learned trial magistrate grossly erred in both law and fact by convicting the appellant in a case where material witnesses who witnessed the said crime committed and the 8 buyer of the alleged phone (one RATIFA) were not procured to testify. 7. THAT, the learned trial magistrate grossly erred in both law and fact by confiscating the appellant's motorcycle (MC 968 DLU) and terming it as an instrument of crime, yet no one had testified to having seen it at the scene of crime. 8. THAT, the learned trial magistrate grossly erred in both law and fact by confiscating the appellant's motorcycle (MC 503 DQZ) and terming it as being bought by the proceeds of crime, yet there was no conducive evidence to suggest that it was bought by the money allegedly stolen from the crime at hand. 9. THAT, the learned trial magistrate grossly erred in both law and fact by convicting the appellant based on PW4's evidence despite that he was a witness who had an interest to serve. 10. THAT, the learned trial magistrate grossly erred in both law and fact by failing to consider the appellant’s defen ce despite it being strong, and that raised doubt about the prosecution case. 11. THAT, the learned trial magistrate grossly erred in both law and fact by convicting the appellant in a case that was not proved to the required standard. 9 Before this Court, the appellant appeared in person (unrepresented), whereas the respondent/Republic was represented by Ms Salome Matunga, the learned State Attorney. By consent of both parties, this Court ordered the appeal to be disposed of through written submissions. The submissions were duly filed as ordered. I commend both parties for their insightful submissions. I have carefully read and considered the rival submissions in my deliberations. It is important to note that the appellant, in his submissions, consolidated the 1 st , 2 nd , and 7 th grounds and argued them conjointly. Similarly, he consolidated the 3 rd and 6 th grounds and argued them conjointly. The 4 th , 5 th , 8 th , 9 th , 10 th , and 11 th grounds were argued independently. To start with, regarding the 1 st , 2 nd , and 3 rd grounds of appeal, t he appellant argued that the two motor vehicles which formed the basis of the charges of stealing and malicious damage were neither produced before the trial court nor were the pictures thereof tendered in evidence. According to the appellant, although PW1 and PW2 testified that their vehicles were taken to the police station after the incident and pictures were allegedly taken, no such pictures were produced during the trial. The 10 appellant maintained that, in the absence of the physical vehicles or photographic evidence depicting the alleged damage, the prosecution failed to establish the existence of the vehicles and the alleged damage. He cited the case of Jonas Nkize v Republic [1992] TLR 213 to substantiate his contention. With respect to the 3 rd and 6 th grounds of appeal, the appellant submitted that the prosecution failed to positively identify the phone make Samsung J6 (Exhibit P2) as the property of PW1. It was argued that neither PW1 nor PW5 verified the phone's IMEI number in court by switching on the handset and comparing it with the alleged ownership details. He cited the case of Joseph Mutua and Another vs the Republic , Criminal Appeal No. 166 of 2011 (Arusha registry) to cement his assertion. He added that the charge did not contain the phone's IMEI number, thereby creating a material inconsistency between the charge and the evidence adduced at trial. Furthermore, the appellant faults the trial court for relying on the evidence of the recovered phone (exhibit P2) to convict him while acquitting his co- accused persons. To him, if the available evidence was found insufficient 11 to convict the appellant’s co-accused, the same standards ought to have been applied to the appellant. To substantiate his assertion, he cited the case of Dickson s/o Joseph Luyana and Another vs Republic, Criminal Appeal No. 1 of 2005. Moreover, the appellant argued that the prosecution failed to call Ratifa Hamis, the person from whom the phone was allegedly recovered, despite her being a material witness capable of establishing the chain of possession. He therefore urged the Court to draw an adverse inference against the prosecution for failure to call a material witness and to find that ownership and recovery of the alleged stolen phone were not proved beyond a reasonable doubt. In his view, the conviction was founded on assumptions and speculation rather than cogent and credible evidence worth a conviction in a criminal trial. He cited the cases of Yosia Nicholaus Marwa and two others vs Republic, Criminal Appeal No. 193 of 2016 and Aziz Abdallah vs Republic [1991] TLR 71 at pages 71- 72, to cement his stand. Submitting on the 4 th ground, the appellant challenged the trial court's reliance on the cautioned statement (Exhibit P6), which he retracted. He 12 contended that the inquiry conducted to determine its voluntariness was procedurally flawed and inconsistent with the requirements of the law. He argued that, despite his objection to the statement, the trial court admitted it as ID1 during the inquiry. To him, such admission was irregular and afforded the trial magistrate an opportunity to examine its contents before ruling on its admissibility. He cited the cases of Selemani Abdallah & 2 Others vs Republic, Criminal Appeal No. 384 of 2008 and Robinson Mwanjisi v Republic [1994] TLR 203, to buttress his contention. Moreover, he contended that the inquiry ruling demonstrated that the trial Magistrate relied on information contained in ID1, including his personal and family particulars, in determining voluntariness. He maintained that this amounted to prejudicial consideration of an unproven document and compromised the fairness of the inquiry. He prayed for this Court to expunge the cautioned statement (Exhibit P6) from the record. Regarding the 9 th ground of appeal, he submitted that the testimony of PW4 was neither credible nor independent as he was an interested witness, having himself been arrested in connection with the matter before being released by the police. He added that PW4 expressly 13 admitted that he had no personal knowledge that the motorcycle in question had been purchased using proceeds of crime and that such information was communicated to him by PW5. In his view, PW4's evidence on that aspect was purely hearsay and incapable of proving any incriminating fact against the appellant. Submitting on the 8 th ground, he contended that the prosecution failed to prove that the motorcycle with registration No. MC 503 DQZ was purchased by using proceeds of crime, as no evidence was led regarding the source of funds, mode of payment, date of purchase, or testimony from the seller. He went on to submit that there was no evidence linking the motorcycle registration No. MC 968 DLU to the commission of the offence. He argued that no witness identified either the motorcycle or the appellant at the scene, and PW3 admitted that he neither recognised the perpetrators nor noted the motorcycle’s registration number. He added that the madrasa students who allegedly witnessed the incident were material witnesses whose absence created a gap in the prosecution's case. He summed up that the findings on money laundering and forfeiture of the motorcycles were based on speculation rather than proof. 14 On the 10 th ground of appeal, the appellant contended that the learned trial Magistrate erred in law by failing to adequately consider the defence case, despite it having raised serious doubts in the prosecution’s case . Accordingly, the appellant prayed for this Court to find merit in the grounds of appeal and hold that the prosecution failed to prove its case beyond a reasonable doubt. In reply to the combined grounds 1, 2 and 7, the learned State Attorney submitted that the prosecution discharged its burden of proof beyond a reasonable doubt through direct, circumstantial, documentary and corroborative evidence. She submitted that failure to tender the alleged stolen or damaged property is not fatal where credible evidence establishes the commission of the offence. She cited to me the case of Mathias Bundala v Republic, Criminal Appeal No. 62 of 2004 (CAT), to cement her contention. She maintained that PW1 and PW2 gave consistent and unshaken evidence regarding the breaking of the vehicles, theft of property, and the damage occasioned thereto. To her, the fact that the vehicles were subsequently repaired and returned to use did not negate the occurrence of the offences nor did it affect their oral testimonies. 15 Responding to the 3 rd and 6 th grounds of appeal, she argued that PW1 positively identified the phone by its make, model, colour and IMEI number, while PW5 testified as to its recovery. She cited the case of Ally Bakari & Another vs Republic [1992] TLR 10, to substantiate her contention. She added that the appellant did not challenge the identification at trial, and thus cannot raise such factual issues for the first time on appeal. To bolster her stance, she cited the case of Nyeremana Nyakato vs the Republic , Criminal Appeal No. 164 of 2017 (CAT). Regarding the failure to call Ratifa Hamis, the learned State Attorney submitted that Section 152 of the Evidence Act does not require the prosecution to call every witness. She argued that an adverse inference only arises where the omitted witness is indispensable. To her, since PW1 and PW5 sufficiently proved the recovery and identification of the phone, Ratifa's evidence was merely corroborative. To bolster her submission, she cited the case of Luka Anatory vs the Republic , Criminal Appeal No. 127 of 2015. In reply to the 4 th ground of appeal, she submitted that the trial Court properly conducted an inquiry and found the statement voluntarily made. She added that during the inquiry, the statement was merely marked as 16 ID1 for identification purposes and not admitted as evidence. She cited the case of Robinson Mwanjisi v Republic [1993] TLR 218, to support her stance. She argued that the trial Court's finding on voluntariness was a finding of fact which should not be disturbed on appeal unless shown to be perverse or unsupported by the evidence. She cited the case of Twaha Ally & 5 Others v Republic , Criminal Appeal No. 78 of 2004, to substantiate her position. In reply to the 5 th ground of appeal, she submitted that the omission of the phone's IMEI number in the charge did not render the charge defective. She went on submitting that under Sections 132 and 234 of the Criminal Procedure Act, Cap. 20 R.E. 2022, a variance is only fatal where it misleads the accused or occasions a miscarriage of justice. She insisted that the charge clearly disclosed the offence and particulars of the stolen mobile phone, and the appellants extensively cross-examined the prosecution witnesses, without demonstrating any prejudice arising from the alleged omission. Expounding on the 8 th and 11 th grounds of appeal, she submitted that the predicate offence of stealing was established beyond a reasonable doubt and that the evidence of PW4 and PW5 sufficiently linked the motorcycle 17 to the proceeds of crime. She opined that the offence of money laundering may be proved through circumstantial evidence without direct tracing of the funds. To bolster her submission, she cited the case of Zakaria Laurent & Another v Republic, Criminal Appeal No. 315 of 2015. She added that the forfeiture order was lawful under sections 57(1) and 60(2) of the Economic and Organised Crime Control Act, [Cap 200 R.E 2022], as the defence offered no alternative explanation for the source of funds; thus, the property was derived from the commission of an economic offence. In reply to the 9 th ground of appeal, she argued that the fact that PW4 was initially arrested did not render him an interested witness or diminish the probative value of his testimony. She contended that PW4's evidence was consistent, and corroborated by other prosecution ’s evidence. She opined that the credibility of a witness is determined by the consistency and coherence of his testimony rather than by the fact that he was once a suspect. She cited the case of Saidi Mfungo vs the Republic , Criminal Appeal No. 216 of 2014, to buttress her contention. In countering the 10 th ground of appeal on the complaint that the trial court failed to consider the defence, Ms Matunga submitted that the 18 defence case was duly considered and summarised in the judgment, but was rightly rejected. She was of the view that a trial Court is not required to reproduce the defence verbatim, provided it demonstrates that the defence was considered. To buttress her contention, she cited the case of Anthony Nguza vs the Republic , Criminal Appeal No. 343 of 2015. Finally, she maintained that the prosecution proved its case beyond a reasonable doubt and that the grounds of appeal are based on misconceptions of fact and law, misinterpretation of evidence and misapplication of authorities. In rejoinder, the appellant had nothing new save reiteration of his submission in chief. On my part, having dispassionately scanned the record, rival submissions, and the grounds of appeal in their totality, it is my considered view that the present appeal may conveniently be disposed of based on one issue, that is, whether the offences against the appellant were proved beyond a reasonable doubt. Basically, the appellant raised several grounds of appeal challenging, inter alia, the sufficiency of the evidence, the admissibility of the caution 19 statement, identification of the alleged stolen phone, reliance on the evidence of PW4, proof of the money laundering charge, and the trial Court’s failure to properly consider the defence. On the other hand, the respondent supported the conviction and submitted that the prosecution proved the case beyond a reasonable doubt. This Court, being the first appellate forum, is enjoined to re-evaluate the evidence and arrive at its own conclusion. See the cases of Emilian Aidan Fungo @ Alex and Another vs the Republic, Criminal Appeal No. 278 of 2008, CAT at Dar es Salaam. and Khamis Said Bakari vs Republic (Criminal Appeal No. 359 of 2017) [2020] TZCA 259. Cognisant of this settled principle of law, I therefore took trouble to appraise the trial court record afresh with a view to ascertaining whether the trial Court rightly arrived at the conviction verdict. At the outset, there is no dispute that PW1 and PW2 reported that their motor vehicles had been broken into and certain properties stolen. However, the mere occurrence of a theft did not, without more, establish that it was the appellant who committed the offences. To put it more clearly, there is no direct evidence implicating the appellant. This is 20 because nobody witnessed the appellant breaking and stealing from the complainants ’ vehicles. Although circumstantial evidence is admissible and may be relied on to ground a conviction, it must irresistibly lead to no other inference than the accused’s guilt. See the case of Mohamed Selemani vs the Republic , Criminal Appeal No. 105 of 2012, CAT at Mtwara. Thus, t he prosecution was under a duty to connect the appellant to the commission of the offences through credible and cogent evidence. The prosecution's case rested substantially on the recovery of a Samsung J6 mobile phone and the alleged caution statement of the appellant. Regarding the phone, PW1 identified it by its make, model, colour and IMEI number. However, the record does not show that the phone was switched on and its IMEI number verified in court against the IMEI number allegedly mentioned by PW1. In a case involving a common item such as a mobile phone, such linkage was crucial. The omission created uncertainty as to whether the phone produced as Exhibit P2 was indeed the same phone bearing the mentioned IMEI numbers and allegedly stolen from PW1. The concerns raised by the appellant in this regard cannot be dismissed lightly. 21 Further, the chain of possession of the phone (Exhibit P2) was not fully established. According to PW5, the phone was recovered from one Ratifa Hamis, who allegedly purchased it from the 2 nd accused. PW5 further testified that the 2 nd accused mentioned the 3 rd accused, who also implicated the appellant. However, for some obscure reasons, the prosecution did not call the said Ratifa Hamis to testify, and no reasons were assigned for that ailment. To cap it all, PW5 did not even tell the Court how they traced and ultimately found the phone (Exhibit P2) with the said Rafita Hamis. Such explanations would have added credit to the prosecution’s narrative. Admittedly, the failure to call Ratifa Hamis entitles the court to draw an adverse inference. The Court of Appeal in the case of Azizi Abdalah vs. R [1991] TLR 71 held:- ‘ The general and well -known rule is that the prosecutor is under a prima facie duty to call those witnesses who, from their connection with the transaction in question, are able to testify on material facts. If such witnesses are within reach, but are not called without sufficient reason being shown, the court may draw an inference adverse to the prosecution.’ 22 Guided by the above authority, it is my humble opinion that Ratifa’s evidence was material to establish the circumstances surrounding the recovery and ownership of the phone. In the absence of her testimony, a significant gap remained in the prosecution's case. I therefore go along with the appellant that, having acquitted the 2 nd and 3 rd accused persons for insufficient evidence linking them to the stolen phone, the trial Court had no justification to convict the appellant based on the same evidence. As if to add salt to the wound, no satisfactory explanation appears in the judgment as to why the same evidence was insufficient against the co- accused but sufficient against the appellant. In a similar vein, no witness identified the appellant as one of the persons who broke into the vehicles. PW3 expressly stated that he neither identified the perpetrators nor the registration number of the motorcycle allegedly used at the scene. Likewise, the madrasa students who reportedly first observed the offenders were not called as witnesses. Their evidence would have been crucial in identifying the perpetrators. The omission further dented the prosecution's case. See the case of Azizi Abdalah vs. R (supra). 23 Regarding the appellant’s caution statement (Exhibit P6), it is common cause that the same was retracted by the appellant, both during the prosecution’s case and in his defence. It is therefore a settled law that such a confession requires corroboration to ground the conviction. PW5 alleged that the appellant admitted to committing the offences with the aid of the motorcycle No. MC 968 DLU, and using the proceeds to purchase the motorcycle No. MC 503 DQZ. Unfortunately, there was no evidence from the independent witness to corroborate the retracted confession. The prosecution was duty-bound to sufficiently establish the motorcycle No. MC 503 DQZ was obtained from the proceeds of the alleged theft, a duty which it massively failed to discharge. Thus, it goes without saying that the prosecution’s evidence left a lot to be desired. Indeed, the prosecution's evidence fell short of establishing an irresistible connection between the appellant and the charged offences. It is my humble opinion that these doubts ought to be resolved in favour of the appellant. In addition, I have considered the defence evidence. Notably, the appellant consistently denied involvement in the offences and gave an explanation regarding the circumstances of his arrest and ownership of 24 the motorcycle (Exhibit P7). In my view, the trial Court did not adequately evaluate the defence against the weaknesses apparent in the prosecution's case. It is a principle of criminal law that for the accused person to be guilty of an offence, the claimant must prove the case to the hilt, and the standard is beyond a reasonable doubt. See the case of Jonas Nkize vs Republic [1992] T.L.R 213. Therefore, banking on the above authority, I agree with the appellant that the prosecution failed to prove the accusations to the hilt. In the upshot, I find merits in this appeal and therefore allow it. Consequently, I quash the convictions on all counts and set aside the sentences imposed by the trial Court. Equally, I set aside the forfeiture orders relating to the motorcycles make MC 503 DQZ and MC 968 DLU. The said motorcycles, namely, MC 503 DQZ and MC 968 DLU, should be returned to the appellant, Ally Mbwana . The appellant should be released from custody immediately unless he is held for other lawful purposes. It is so ordered. Dated at Dar es Salaam, this 10 th day of June 202 6. 25 A.A. Mbagwa JUDGE 10/06/2026