Emmanuel Piusi Ngwari vs Republic (Criminal Appeal No. 7614 of 2026) [2026] TZHC 3132 (10 June 2026)

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SIMIYU SUB - REGISTRY AT SIMIYU CRIMINAL APPEAL NO. 7614 OF 2026 (Arising from the Judgment of the District Court of Maswa (Hon. E.S. Missana, RM) in Criminal Case No. 19257 of 2025 dated 10th March 2026) EMMANUEL PIUSI NGWARI ..................................... APPELLANT VERSUS REPUBLIC...............................................................RESPONDENT RULING 28th May & 10thJune 2026 MTEMBWA, J.: This Appeal arises from the decision of the District Court of Maswa in Criminal Case No. 19257 of 2025, in which the Appellant was convicted and sentenced for the offence of stealing contrary to Sections 258(1), (2)(a), 265, and 275 of the Penal Code, Cap 16 R.E 2022 . It was alleged that on May 28, 2025, at Reyo Bar, Nyalikungu Ward, within Maswa District in Simiyu Region, the Appellant stole one Motorcycle with Reg No. MC 402 EMR, make Sinoray, black color, valued at Tanzanian Shillings 2,500,000/= only, and one mobile phone, make Tecno, valued at 1

Tanzanian Shillings 35,000/= only, the properties of FREDY S/O GUMEGA NSHASHI. The Appellant resisted the charge. Having gathered the evidence adduced during hearing, the 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 seven years imprisonment, commencing on the day of conviction. Dissatisfied, the Appellant has preferred this appeal on the following grounds of appeal;

1. The trial magistrate erred in law and fact by convicting the Appellant on insufficient evidence and without proof beyond a reasonable doubt.
2. The trial Court erred in law by relying on weak and unsafe identification evidence.
3. The trial magistrate erred in law and fact by failing to resolve material contradictions in the prosecution evidence, see the testimony o f PW2 and PW3.
4. The trial Court erred in law by relying on an alleged confession without establishing its voluntariness.
5. The trial magistrate erred in law by shifting the burden o f proof to the Appellant.
6. The trial Court erred in law by failing to properly evaluate and consider the defence evidence. 2

7 . The trial Court erred in law by relying on circumstantial evidence that did not conclusively point to the guilt o f the Appellant. 8. The trial Court erred in law by admitting and relying on exhibits without proper proof o f their handling/chain o f custody. On May 28, 2026, when the matter came for hearing, the Appellant appeared in person, while the Respondent was represented by Mr. Godrian Tillya, the learned state attorney. Upon inquiry, the parties agreed to argue the appeal orally, with the learned state attorney to address the grounds of appeal first. However, before the hearing could start, I noted that after a lengthy cross-examination by the prosecution, the Appellant was not given an opportunity to re-examine his evidence. As such, I called upon the parties to address me on whether that was legally correct. Staging the floor, Mr. Tillya conceded that the Appellant (DW1) was not given an opportunity to re-examine his evidence after being cross-examined by the prosecution. He thus implored this Court to remit the record to the trial Court, where the Appellant will be given an opportunity to re-examine his evidence. On his part, the Appellant had 3

nothing to say. He seemed to have understood the fault committed by the trial Court during the defence hearing. Having keenly examined the records, especially the Appellant testimony (DW1) and the submissions by the learned state attorney, the question is whether the accused's right to a fair trial was manifestly curtailed. According to the learned state attorney, the record is silent as to whether the Appellant (DW1) was given an opportunity to re-examine his evidence after being cross-examined by the prosecution. Upon reflection of the trial Court's records, I am satisfied that there is nothing indicating that, during defence hearing, the Appellant was given such an opportunity to re-examine his evidence after having been extensively cross-examined by the prosecution. According to section 156(1) (2) and (3) of the Evidence Act, Cap 6 RE 2023, 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 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 4

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. In my opinion, failure to allow the Appellant to re-examine his evidence invalidated or vitiated the respective proceedings and undermined the whole concept of a fair trial. It should be noted that the right to be heard is a cornerstone of a fair trial, as enshrined in Article 13(6)(a) of the Constitution of the United Republic of Tanzania, 1977 . The right is so fundamental that any decision made in violation of it will be nullified, even if the same decision would have been reached had the parties been heard. In Boay Ahay vs The Republic (Criminal Appeal No. 66 of 2010) [2013] TZCA 2462 (19 June 2013), the Court noted as follows; There is no gainsaying here that the Appellant, a layman without legal representation, was denied his basic right to a full and fair hearing, in terms o f Article 13 (6) (a) o f the Constitution o f the United Republic o f Tanzania, Cap. 2, R.E. 2002. The omission by the trial Court to comply with section 147 o f the Evidence Act (supra) vitiated the proceedings: This Court has, time without number, reaffirmed the position that failure to allow the party to re-examine the witness is a serious 5

procedural lapse that vitiates the respective proceedings unless such right is waived. In Patrick James Mlay vs Ndeni Terewael Sumari (PC Civil Appeal No. 000012011 of 2024) [2025] TZHC 3781 (11 July 2025), the Court noted that; Compliance to this statutory order is not optional. Witness testimony is a critical part o f proceedings and has a direct bearing on the final determination o f a case. Where a party is denied the right to reexamine a witness and there is no record indicating that such right was waived, the evidence is incomplete and legally defective. Given the circumstances, Mr. Tillya has urged this Court to remit the records to the lower Court, where the Appellant will have an opportunity to re-examine his evidence. Upon reflection, I have considered the fact that the order of examination of witnesses was accordingly adhered to for all other prosecution witnesses. In this situation, I will not order a total retrial. Instead, I will order that the Appellant be given an opportunity to re-examine his evidence. Since the defence has been reopened, I remind the trial Court to afford the Appellant the right to call any other witnesses before the closure of the defence case. 6

In the final result, the judgment of the trial Court is hereby vacated and set aside. I order that the records be remitted to the trial Court, where the Appellant will be afforded the right to re-examine his evidence before the defense case is closed. Once that is done, the trial Court shall prepare a judgment. Should the Appellant be found liable, any time already spent in prison shall be deducted from the sentence to be imposed, if any. Since the Appellant is a lay person and unrepresented, I further direct the trial Court to remind the Appellant of his testimony in examination-in-chief and cross-examination before he is given an opportunity to re-examine his evidence. It is so ordered. The right of appeal is fully explained. DATED at SIMIYU this 10th day of June 2026. H.S. MTEMBWA JUDGE 7