Denice Philipo Nyakana vs Republic (Criminal Appeal No. 7680 of 2026) [2026] TZHC 3133 (10 June 2026)

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SIMIYU SUB - REGISTRY AT SIMIYU CRIMINAL APPEAL NO. 7680 OF 2026 (Arising from the Judgment of the District Court of Bariadi (Hon. M.M. Nyangusi, SRM) in Criminal Case No. 30206 of 2025 dated 17th March 2026) DENICE PHILIPO NYAKANA ..................................... APPELLANT VERSUS REPUBLIC...............................................................RESPONDENT RULING 28th May & 10thJune 2026 MTEMBWA, J.: In the District Court of Bariadi, the Appellant was charged with the offence of trafficking in narcotic drugs contrary to Section 16(1) and (2)(c) of the Drugs Control and Enforcement Act, Cap 95 R.E 2023 . It was alleged that on November 27, 2025, at Isanga Village, Dutwa Ward, within Bariadi District in Simiyu Region, the Appellant was found transporting narcotic drugs commonly known as Khat (Mirungi), weighing 14.65 kilograms. The Appellant resisted the charge, asserting that he did not commit the offence. Having gathered the evidence adduced during hearing, the 1

trial Court was satisfied that the offence with which the Appellant was charged was proved beyond a reasonable doubt and proceeded to convict him. He was then sentenced to serve thirty (30) years imprisonment. Dissatisfied, the Appellant has preferred this appeal on the following grounds of appeal;

1. That the learned trial Magistrate Court erred in law and fact by passing sentence in humilities without calling the social welfare officer to Court because I am 17 years old.
2. That the trial magistrate Court had no jurisdiction to entertain this case, according to his age, otherwise the juvenile Court.
3. That the trial Court erred in law and fact by convicting me while I was detained at Bariadi Police Station for more than one month, contrary to sections 52(l)(a)(b) and (2) o f the Criminal Procedure Act CAP 20 [R E 2023], causing a miscarriage o f justice.
4. The evidence that was testified to by the driver did not corroborate each other, and the independent witness who witnessed the search did not come to Court to testify to the truth.
5. The trial Court erred in law and in fact to convict the appellant while the process o f parking it, labeling the same transfer the exhibits, I was not present, and I was not present during that process.
6. That, the learned trial Magistrate Court erred in law and fact in ignoring my defence. 2

7 . The trial magistrate Court erred in law in passing sentence in contradiction to the evidence which was adduced by the Public Witnesses 8. That, the prosecution side failed to establish the case beyond reasonable. When the matter came for hearing on May 28, 2026, the Appellant appeared in person, and the Respondent was represented by Mr. Godrian Tillya, the learned state attorney. By consent, the parties agreed to argue the appeal orally. However, having reviewed the records, I noted that the trial Court cross-examined the Appellant before he could re-examine his evidence. In such a state of confusion, I called the parties to address me on that. Addressing the issue, Mr. Tillya submitted that after reviewing the defense evidence at pages 38 and 39 of the proceedings, he noted that the Appellant, after being cross-examined by the public prosecutor, was cross-examined by the trial Court before he could re-examine his evidence. He implored this Court to remit the records to the trial Court, where the defence will be recorded afresh in accordance with the law. He then rested his case. On his part, the Appellant has nothing to say. He acknowledged having understood what has been submitted by the learned state attorney. 3

Having dispassionately examined the trial Court's records and the submissions of the learned state attorney, the question is whether the trial Court was legally entitled to cross-examine the witness, especially the appellant, before the appellant could re-examine his evidence during the defence hearing. According to Mr. Tillya, the trial Court was not entitled to cross-examine the witnesses, and doing so vitiated the proceedings. Before I look into the submissions by the learned counsel, I will examine the part of the trial Court proceedings dated February 12, 2026. The proceedings indicate as follows; DW1: DENICEPHILIPO NYAKANA AGE: 17YRS WORK: PEASANT TRIBE: MUHA RESIDENT: MWANZA RELIGION: ISLAMIC AFFIRMS AND STA TES My name is Denice Nyakama. I have 17 years, and I was born on 8/1/2009. I stand here charged with the offence o f unlawful possession o f khat drugs, which is 14.65kg, valued at Tshs 10,000,000/=. According to my age, I cannot possess such drugs since I am a student. On 27/11/2025, I was on my safari. I boarded a bus, and when we reached the vehicle inspection area, I was told that I had drugs in the bag. Thereafter, they handcuffed me and took me to the police station in Bariadi. I stayed there for one month. 4

In December, I was given the papers to sign. I don't know what was written there. I signed it. I asked about any relatives or friends who would be there, but none were. They returned me to the lock-up and on 31/12/2026, they took me out o f the lock-up and gave me a bag, and they came to Court. I pray to object to the evidence given since they did not t e l the Court about the arrest, there was no independent witness, and the caution statement. The chemist said when he received the exhibits, I was not there. I therefore pray for the certificate o f seizure, the caution statement, and the government chemist's report to be expunged from the proceedings. Since it was obtained in violation o f the law. I pray the Court to acquit me, since I am still a student at CBE College at Mwanza. That is a l XXD OFDW1 BYPP I was arrested on 27/11/2025; the witnesses said they found me with the bags. I was not arrested at Isenge. I objected to the age o f 19 years. I forgot the registration No. I have no conflict with the arresting officer. i was going to Nzega on that day. I was from Lamadi. I did not tell the Court what I was doing at Lamadi. The motor vehicle had no receipt. I have no national identity card. CROSS-EXAMINATION BY COURT I have no ID. I was not given the university ID. I did not process the national ID, but I had a voter ID card, which I lost. RRE EXAMINATION NONE 5

COURT: Section 226 o f CPA CAP 20 R.E 2023 C/W ACCUSED: I pray to close my defence COURT: Defence case is hereby marked closed ORDER: Judgment on 23/2/2026 From the excerpt above, it is clear that the accused was given an opportunity to present his defense case, and he testified as DW1. After being examined in chief, he was then cross-examined by the prosecution. Before he could re-examine his evidence, he was then cross-examined by the trial Court. The records do not clearly establish the reason for cross-examining the Appellant before he could even re examine his evidence. Admittedly, there is no law in our country that allows the Court to cross-examine the witnesses during hearing. That right is only entrusted to the parties to cross-examine the opposite party with the view to shake or test the credibility of the witnesses on the dock. Section 156(1) (2) and (3) of the Evidence Act, Cap 6, RE 2023 is of more assistance on this. It provides that witnesses shall be first examined-in-chief, then, if the adverse party so desires, cross-examined, and then, if the party calling them so desires, re-examined. The examination-in-chief must relate to relevant facts, but the cross-examination need not be confined 6

to the facts to which the witness testified on his examination-in-chief. The re-examination shall be directed to the explanation of matters referred to in cross-examination; and if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter. Reading between the lines of Section 156(1), (2), and (3) of the Evidence Act, the Court has not been mandated or authorized to examine in chief, cross-examine, or re-examine the witnesses in the dock. Such right, as said before, is entrusted to the parties. Interpreting the above section (before the amendment), the Court of Appeal of Tanzania in Kulwa Makomelo and 2 Others vs Republic (Criminal Appeal No. 15 of 2014) [2015] TZCA 559 (9 October 2015) observed as follows; From the wording o f section 146 (2), cross examination o f a witness is the exclusive right o f an adverse party. (emphasis mine) This position also applies the same where the trial is to be conducted with the aid of the assessors. In other words, even the assessors, being part of the Court, have no right to cross-examine the 7

witnesses. In Mathayo Mwalimu and Another vs Republic, Criminal Appeal No. 174 of 2008 , the Court observed that; The purpose o f cross-examination is essentially to contradict. By the nature o f their function, assessors in a criminal trial are not there to contradict. Assessors should not therefore assume the function o f contradicting a witness in the case. ...they are there to aid the Court in a fair dispensation o f justice... Article 13 (6) (a) of the Constitution of the United Republic of Tanzania embodies the principle of a fair trial. Article 13 (6) ensures equality before the law. It provides that the state authority shall make procedures that are appropriate or that take into account the following principles, namely, when the rights and duties of any person are being determined by the Court or any other agency, that person shall be entitled to a fair hearing and to the right of appeal or other remedies against any decision of the Court or of any other agency concerned. Ideally, one of the components of a fair trial is a trial before an impartial tribunal. An impartial tribunal is one that observes the rules of natural justice in its proceedings. One of the rules of natural justice is the rule against bias, whether actual, imputed, or apparent. There is actual bias when there is real evidence that one or all members of a tribunal 8

are biased in favor of or against a party in the proceedings. Imputed bias exists where a member of the tribunal or Court has a vested interest in the outcome of the proceedings before the tribunal. Apparent bias exists where, by conduct, the tribunal or a member or members of the tribunal appear openly to be in favor of or against a party in the proceedings before them. The act of the trail Court to cross-examine the witness allowed itself to be identified with the interests of the adverse party, and therefore ceased to be impartial. By being partial, the Court breached the principles of a fair trial now entrenched in our Constitution. By way of passing, I should say this. During hearing, the trial Court may ask clarifying questions. Those questions should not be intended to test the witness's veracity or credibility. Once this momentum arises, the trial Court must record "questions for clarification by the Court" to distinguish them from cross-examination. In any case, the questions for clarification by the Court should be asked after re-examination. Asking those questions before re-examination is a procedural lapse that violates the respective proceedings, because re-examination is intended to explain matters referred to in cross-examination by the opposite party and not otherwise. 9

For the reasons stated and on account of this fundamental irregularity, I am constrained to exercise my revisional powers and nullify the defence proceedings. Accordingly, the conviction is quashed, and the sentence is set aside. I order that the records be immediately remitted to the trial Court, where the defence case will start afresh in accordance with the law. In the interests of justice, the defence case is to be presided over by another magistrate of competent jurisdiction. It is so ordered. The right of appeal is fully explained. DATED at SIMIYU this 10th day of June 2026. H.S. MTEMBWA JUDGE 10