Lawrence Kiwale vs Edesius Kanisius Hyera (Criminal Appeal No. 185 of 2026) [2026] TZHC 3040 (10 June 2026)
Judgment
1 THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA SONGEA SUB - REGISTRY AT SONGEA PC. CRIMINAL APPEAL NO. 185 OF 2026 (Arising from the District Court of Songea at Songea in PC Criminal Appeal N o. 24633 of 2025 Origina ting from Songea Primary Court at Maposeni in Criminal Case N o. 172 of 2025 . ) LAWRENCE KIWALE …...…………..……....…………………….… APPELLANT VERSUS EDESIUS KANISIUS HYERA ..........……………..…...……….………… RESPONDENT JUDGMENT 1 1 th May & 10 th June, 2026. KAWISHE, J.: The appellant her ein was arraigned before Maposeni Primary Court charged with the offence obtaining goods by false pretence contrary to section 302 of the Penal Code [ Cap 16 R.E 2023 ] . After the full trial the appellant was convicted and sentenced to pay a fine of Tz s. 100, 000/= or in default to imprisonment for four months and he was ordered to comp e n sate the respondent T zs . 10,266,500/= , hand the exhib it maiz e to the respo nd ent and the compensation shall be le ssened after valuation of the exhibit. H e unsuccessfully appeal ed to the District Co urt (fi rst appella te
2 C ourt ) . As a result, he has app ro ached this cou rt challenging the de cis ion the re of with the following grounds of appeal.
- That, the 1 st appellate Court erred in law and facts fo r upholding the conviction and sentence of the trial Court despite the fact that the prosecution failed to prove the charges against the accused perso n beyond the reasonable doubt .
- That, the 1 st appellate C ourt erred in law and facts for upholding the deci sion of the trial court that the appellant has to compensate the respondent herein the total sum of TZS 10,266,500/= contrary to item 5(1)(b) of the M agistrates’ Courts Act [Cap 11 R.E 2023] (The Primary Courts Criminal Procedure Code). T he appeal was chal le nged by the respond ent while supporting the subordinate cou rts ’ deci sions. B y the parties ’ co nsent and by the court ’ s order, the appeal was disposed of by way of written su b mission. T h e appellant w as repr esented by Mr. Makame Sengo learned advocate wherea s, the respondent was represented by Mr. Raphael Matola learned advocate. P rior to engaging into the deter min ation of the appeal I find it apposite to briefly state the facts leading to the appeal. T he appellant was arraigned before Maposeni Prima ry Court charged with the offence of obtaining goods by false pretence contrary to section 302 of the Penal Code (sup ra). I t was alle ged that, on 5 th Septem b er , 2025 in Luga gala Village , Songea District that he intentionally took 162 bags of maize valued
3 at Tzs. 10 ,266,500/ - the property of the respondent. W hen the charge was read to him , he pleaded not guilty. T he prosecution ca lled three witnesses and tendered one exhibit. T he appellant called t wo wi tnesses in defence . A t the end of the trial , the trial C ourt found tha t the offence w as proved t o the required standard. H e was sente nced to serve six mon ths imprisonment or pa y a fine Tzs. 100,000/ - . T he ap pellant was also ordered to the responde nt compe n sation at the tune of Tzs. 10,266,500 / - . I rritated with the conviction and sentence , he preferr ed the appeal with the grounds af oreme ntioned. S ub mitting in sup port of the appeal, Mr. Makame for the appellant in the first ground of appeal submitted that, in c riminal case s, the prosecution is duty bound to prove the case beyond reasonable dou bt. T hat the duty does not shi ft t o the accu sed . T hat failu re of w hich the accused should be set free against the charge s ra ised. T o butt re ss his stance, he cited r egulation 1(1) of th e Magistrates’ Courts (Rules of Evidence i n Primary Courts) Regulations GN no. 66 of 1972 which provides t hat , w here a person is accused of an offe nce, the complainant must prove all the facts which constitute the offence, unless the accused admits the off ence and pleads guilty . H e a dded that , the respondent was required to prove the
4 charges against the appell ant by proving all the elements constituting the offence of obtaining goods by false p retence . H e reli e d on the case of Arsen Samson vs Republic , Crim inal appeal no. 166 of 2021 , t he High Court of Tanzania at Mwanza (Unreported) . Mr. Makame claimed t hat , the respondent i n his e vide nce he never established even a single el ement as promulga t ed in the case he has cited. H is main reason being that the respondent claimed that , the representation wa s made th r ough a written contract which was not tend ered in court d urin g the trial. T he learn ed advocate referred this court to page 7 of the t ri al Court ’ s typed proceedings . H e continued to submit that , the respon dent cl aimed that t he matter w as reporte d to police whereby the app ellant was found with the bags of maize which were ten dered as exhibit P1. H e questioned why the investigator was not calle d to testify. H e cit ed the case of Azizi Abdallah vs Republic [1991] TLR 71 which stated that , witnesses within the reach must be calle d to testify. T o fortif y his stance , he ref err ed to the case of Wambura Marwa Wambura vs T he R epublic , Criminal Appeal N o. 115 of 2019 t he Court of Appeal of Tanzania at Mwanza (Unreported) w he r e the Court held that , the
5 investig ator was supposed to be called to testify. T hat such a failure should h ave led the court to draw adverse infer ence against the respon dent. R everting to the second ground of appeal Mr. Makame claimed t hat , the compensation of TZS 10,266,500/= was contrary to the law . He added that , the Primary Court is not allowed to order the compensation exceeding One Hundred Thousand shillings as provided under paragraph 5(1) (b) of the Magistrates Court’s Act [CAP 11 R.E 2023] (The Prima ry Court Criminal Procedure Code) . T hat the respondent never proved the amount of the bags of maize. F inal ly, he prayed for the Court to allow th e appeal , quash the proceedings and judgment of the trial Court a nd the appellant be acquitted. R eplying to the first ground, the respondent ’ s learned advocate s ta ted that , the ground is b aseless and be dismissed. H e a dd ressed the two complaint s of the appellant that , the responde nt failed to tender the contract c laimed and the failure of the respondent to c all key witness who was a police officer. O n the issue of a written contract, the respon dent ’ s learned advocate rep lie d that , in his testimony the respondent never testified about a written contract. H e added that, the evidence show e d that , in the eventful day and
6 time there was a process of measuring the maize into kilograms and put int o bags in the course of doing that there was recording of the same. O n the complaint that the re w as a failure to c all the investigator , he replied tha t, t he investigator had nothing to prove as he was not present when the event occurred . H e added that , it i s an after thought. H is reason being that if the appellant felt so, should have called him or pr ayed for the trial C ou rt to summon him. H e continued to repl y that, the key wi tnesses were summoned to testify as eye witnesses who were pre sent on the event f ul day. H e dist inguished the case of Aziz Abdallah vs Republic (supra) a nd Wambura Marwa Wambura vs The Republic , (supra) . A s to the case of Arsen Samson vs Republic , (supra) t he learned adv ocate dismissed the appell ant ’ s claim tha t the elements were not pro ved by stating that the respon dent proved the three essential ingredients required to prove the charge . He added that , the prosecution’s evidenc e show ed clearly that , the appellant made a promise by words to make payment of 162 bags of maize worth Tzs .10,26 6,500/ - at home after he had gon e to the bank . That, up to the dates of trial he had not ef fec ted the payment. T hat the sta tement w as a serious statem ent of fac t and intention. T hat the
7 statem e nt w as f al se , as the respondent made se veral follow ups with no fruits. O n the second ground of appeal that , the trial court had no power to order compensation exceeding one hundred thousand shillings as provided under par agraph 5 (1)(b) of the Magistrate Court’s Act (CAP 11 R.E 2023) ( The Primary Court Criminal Procedure Code ) . T hat , th e prosecution did not prove the value of the said bags of maize. T h e respondent ’ s learned adv ocate dismissed the same. H e su bmitted that, w ith respect to the power of the primary court to order compensation, the trial C ourt had power to order co mpensation of Tzs .10,266,500/ - as the value of the loss suffered by the respondent. T he learned ad vocate for the resp ondent challenged the app ellant ’ s advocate by stating that, he has misconceived t he powe r of the primary court to ord er compensat ion a s value of the bags o f maize and when the cour t orders compensation upon conviction on its own motion . H e insisted that the compensation ordered which is Tzs. 10 ,266,500/= was the actual value of the 162 bags of maize which the appellant promised to pay . M r. Matola a verred that , the claim that the value o f the maize was not proved is an afterthought as the appellant did not cross examine with respect to the value of the bags of m aize he
8 obtained from the respondent . That the appellant ’ s failure to cross examine on a m aterial or important matter amount s to admission. H e argued th at , it is on record that the respondent’s evidence show ed that the value of 162 bags of m aize equal to 20,533 kilograms which were valued at Tzs. 10,266,500/ = as the agreed price was Tzs. 500/ - pe r kilogram . T hat, the appellant promised to pay that amount. H e prayed for the appeal to be di smissed for want of m erit . T here w as no rejoinder fil ed . H aving carefully read the parties ’ submission , fir st appella te Court ’ s recor d and the trial Court ’ s recor d including the jud gment, I am in a position to determine the appeal. T he f irst issue is whether the case was prove d beyond reasonable dou bt. S ec o nd issue whether the t rial Court exceed its mandate to or d er compensation. I n the first ground of appeal Mr. Maka me complained th at , the first appellate Court erred in law and fact s in up holding the de cision of the trial Court while the case was not proved beyond reasonable doubt . H e claimed that the respondent did not p rove ev e n a single ele ment of the offence. H e added that , the responde nt did not ten der the alleged written contra ct in court. A l so, he claimed that , the court was suppo sed to draw adv erse inference on the fa ilure of the prosecution to call the inve stigator . H is
9 complaints were c halle nged by the re spondent ’ s learned counsel M r. Matola stating th at, the respondent never testified that t here was a written contra ct rather in the cou rse of meas uring and coun ting of the mai ze bags it w as written down. O n the co mpliant that a key wi tnes s was not called, he replied that if the appellant felt that the investigator was so import ant shoul d have called him or pray for the trial C ourt to s ummon him. T o hi m , it is an after thought. From the antagonistic su bmissions of the p ar ties, I decided to go through the tri al Co urt ’ s records. At page 7 of the trial C ou rt ’ s proceedings the responde nt testified , I q uote: “ I liku wa tarehe 9/9/20 25 nd ipo ulikamatwa na mahindi. H ati ya kuu ziana ipo na kilo uliandi ka we we. ” L iterally translated, ‘ it was on 9/9/2 025 when you w ere arrested with the maiz e. There is a sale agreement , you were the one who w rote the kilog rams. ’ M r. Matola disputed the complaint stating tha t wh en they were counting, it was recorded hence not a written co ntract. I n my view, it woul d have been more informing if the document which was used to record t he transaction could have been tend ered in c ourt. H owever, f ailu re to tender the alleged document in my thin king does n ot defeat th e fact that t here w as a trans action between the appellant and t he respondent . I t
10 is a settled princi p le that , criminal offences are not proved by written do cument s only. E ven or al evidenc e suffices to prove an offence. I n criminal case s , what is re quired is the prosec u tion to prove the offence beyond reasonable doubt . I t is so provided under s ection 3 (2)(a) of the Evidence Act [C ap R.E 2023] states that: “ A fact is said to be proved when - (a) in crim inal matters, except where any statute or other law provides otherwise, the court is satisfied by the prosecution beyond r easonable doubt that the fact exists; ” I n line with the quo ted sec tion, the pr osec ution is require d to pro ve the offence as per the charge sheet. G ive n the compl aint by the appella nt ’ s learned advocate, I reverted to the charge shee t to see if there was a complaint that the appellant breached a contract of sale. T o the contrary , I found that the appellant was c harged w ith the offence of obtaining goods by false pretence . T herefore, the compla int h as no merit, it is dismissed. T he second comp laint under the first gr ound of ap peal is the fai lure of the prosec ution to summon the i nvestigator who arre sted the appel lant with the bags of maize. I n reply, the respo ndent ’ s learne d ad vocate stated that , t he co mplaint is an after tho ught. T hat if the appellant felt so compelling should have called the inve stigator to testify for him or prayed to the tri al court to summon h im. I t is a settled law that , the p rose c ution is
11 not bound with a certain num ber of witnesse s to prove a case . T his position is well sta ted under section 152 of the Evidence Ac t (supra). I t states: “ Subject to the provisions of any other written law, no particular number of witnesses shall in any case be required for the proof of any fact. ” S ee also, regulation 1 (1) of the Magistrate s ’ Courts ( Rules of Evidence in Prima ry Cou rts) Regulations GN No. 66 of 1972 which provide s: “ W here a person is ac cused of an off ence, the complainant must prove all the facts wh ich constitute the offenc e, unless the accu sed admits the offence and pleads guilty. ” T h e provisio n of section 1 52 of the Evidence Act (supra) w as expoun ded by the Court of Appeal in the case of Juma Iddi Yohana vs Republic (Criminal Appeal No. 148 of 2022) [20 25] TZCA 5 (20 January 2025) w he re the Cou rt stated that: “ Second, under section 143 of the EA, the princ iple is that no number of witnesses is required to prove the fact. ” G uided by the position of the C ourt in this quotation, the prosec ution was a t libe rty of calling or not calling the investig ator . A s replied by the respondent ’ s learned counsel, if the app ellant felt that the inv estigator was importan t could have called him or prayed to the court to summon him as a witness . S ince he d id not raise it bef or e the trial court and no atte mpts were made , I am not persuaded with the s ubmission that the trial Cour t
12 was suppo sed to draw adverse inference against the respondent . T hus, the first appellate Cou rt rightly dismissed the f irst ground of appeal. T he t hi r d complaint was tha t , the elements of the offence were not prove d as p er the charge . T he respondent ’ s le arned couns el repli ed that , respon dent proved the three essential ingredients require d to prove the charge . I t was his view that , the prosecution’s evidenc e show ed clearly that , the appellant made a promise by words to make payment of 162 bags of maize worth Tzs .10,266,500/ - at home after he had gone to the bank . F rom th e com peting submission s, I dec ided to read page 7 to 9 of the proceedings of the trial Court and found that the respondent te stified to have transacted with the appellant on a promi se that he w ould pay afte r he had gone to the bank . T hat the respondent traced the appellant b ut in vain. I t was until he reported to the police and the appellant was arres ted with th e 90 bags of maiz e. T he evide nce of the respondent was corroborated by th at of (SM2) PW2 and (SM 3) PW3 who stat e d the same story. T o the con tra ry, the evidence of the a ppellant was not in one p iece wi t h his witness (SU2) DW2. A t page 11 of th e trial Court ’ s proceedings, the appellant testified tha t , he bought the maize from Lilomba. H is witness testified that he was buying maize f rom Lilomba whi le the appellant was
13 buying maize from Ligagala Village. The two defence wi tnesses testified the appellant bought maize from Lilomba and L ugagala. I have two observation s as to their evidence. F irst, t he charge s heet shows that the appellant committed the offence in L ugagala Village . T hus, the evid ence of DW2 support ed the claim on the charge she et that , the offence was commit ted in Lugagal a. H is testimony does not marry that of the appellant who denied to have bought maize in Lugagala Village. S e cond, although the accused is n ot du ty b ound to prove his inno cence, he is required to dent the pr o secution ’ s evi dence. S ince the appellant cl aime d to have bought the mai ze from Lilomba, it could have been usef ul for him to call the person who sold the maize to him to disprove the prosecution ’ s evidence. T his position was accent uated in the case of Juma Iddi Yohana vs Republic (supra) where the Court of Ap peal held that: “ W e find that to be an aft e rthought b y the ap pellant in building up his defence. I t is a settled principle that, although the ac cused has no duty to pr ove his inno cence, he is expected to make the them of his defence known to make the trial fair even to the prosec ution, [ … ] . ” G uided by the exce r pt h erein a bove, the accused did n ot manage to dent the prosecution ’ s evidence. H ence the prosec ution proved t he elements of
14 t he off ence as per the law. T hus, the first issu e is ans wer ed in the affirmative. O n the second ground of appeal , the appellant ’ s learned counse l faulted the first appella te C ourt for u pho lding the order of the trial C ourt to p ay compensation exceeding one hundred thousand shillings as provide d under paragraph 5 (1)(b) of the Magistrate Court’s Act (CAP 11 R.E 2023) ( The Primary Court Criminal Procedure Code) . T ha t the prose cution did not prove t he value of the maize alleged to have been stolen. T he respondent ’ s learned counsel Mr. Matola repli e d that , the t r ial Court had power to order compensation of Tzs .10,266,500/ - as the value of the loss suffered by the respondent. T hat the appellant ’ s learned advocate conf used an order for compensation for the stolen ma ize and order of the trial Court upon conviction on its own motion . T he first appel late Cou rt held that , the compe nsat ion ordered by the trial Court was the value of the stolen mai ze. T hat being the case , the complaint tha t the trial Cou rt had no po wer to ma ke an order for compensation exceedin g one hundred thousand shillings is a misconc eption as it is not a convict ion on the trial Court ’ s own motion ra t her i t was the compensat ion o f the value of the stolen maize.
15 F rom the rea soning of the first appellate Cou rt , it is p a ramount to repr oduce th e provision of p aragraph 5 (1)(b) of the Magistrate Court’s Act (CAP 11 R.E 2023) ( The Primary Court Criminal Procedure Code) hereunder: “ ( 1) A court may, where the justice of the case so requires, and shall, in any case where any law in force requires, ma ke orders (a) N/A (b) for the payment of compensation not exceeding one hundred thousand shillings or costs or for compensation of more than one hundred thousand shillings where it convicts a person of an offence specified in the Schedules to the Minimum Sent ences Act which it has jurisdiction to hear; ” T he provis ion cited is cou ched in a mandator y form which s et the limit under which the trial Co u rt should not exceed. L ooking at t he compensation order of the trial court , in my humb le co nsid er ation is uncerta in as it has two di fferent orders . I n the order for compensation the trial Court ord er ed a pay ment of Tzs. 10 , 266, 500/ - which is far beyond the limit of t he trial Co urt. A gain, it ordere d the appel lant to return the exh ib i t , sacks of maize to the re spondent whereby the compensat ion amount would decrease after valuation of the exhibit. T he order is no t certain. T herefore, the second ground of appeal is meritorio us and is allowed . T he second issue is answered in the affirmative.
16 F or that reason, in my vie w , the trial Court w as right in fi nding the appellant guilty a n d convicted him forthwith , ho we ver, the compensation order is un ce rtain. A part from e xceeding the stat ut ory amo un t provided for, the compensation has been doubled which is contrary to the law. T hat being the ca se, I am inclined to the submission of the appella nt ’ s learned counsel that the trial Court had no mandate to order the compensation be yond its lim it an d the foll owing orders w ere not certa in . T he refo re, t he first appella te Cou rt ’ s j udgment an d orde r s varied. C onsequ ently, the trial Court ’ s conviction and sentence are uphel d . T he order for compensation is quashed and s et aside. A ccordingly, the appeal is par tly, a llowed as stated herein above. T he respondent if so wishes may purs ue his right in the proper f orum . It is so ordered. DATED and DELIVERED at SONGEA this 10 th day of June , 202 6 . E. L. KAWISHE JUDGE
17 COURT: Judgme nt delivered in the presence of Mr. Mak ame Sengo learned c o unsel fo r the appellant also holing brief for Mr. Raphael Ma tola learned counse l fo r the respondent and in the absence of the appellant and respondent. Right of appeal explained. E. L. KAWISHE JU DGE 10 /0 6 /202 6