Makula Malungu Madeleka vs Republic (Criminal Appeal No. 7682 of 2026) [2026] TZHC 3134 (10 June 2026)

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SIMIYU SUB - REGISTRY AT SIMIYU CRIMINAL APPEAL NO. 7682 OF 2026 (Arising from the Judgment of the Resident Magistrate's Court of Simiyu (Hon. Mtenga, SRM) in Economic Case No. 2697 of 2026 dated 2n d March 2026) MAKULA MALUGU MADELEKA.....................................APPELLANT VERSUS REPUBLIC......................................................................RESPONDENT RULING 26th May & 10th June 2026 MTEMBWA, J.: In the Resident Magistrate's Court of Simiyu, the Appellant was arraigned on three counts. In the first count, he was arraigned for the offence of unlawful entry into the National Park contrary to sections 23(1) and 31(1)(a) of the National Park Act, Cap 282 R.E 2023 . In the second count, he was arraigned for the offence of unlawful possession of the weapon in the National Park, contrary to section 26 (1) (b) and (2) of the same Act. In the third count, he was arraigned for the offence of unlawful possession of Government Trophy, contrary to Section 86(1) and (2)(c)(iii) of the Wildlife Conservation Act, 1 Cap 283 R.E 2023 , read together with Paragraph 14 of the First Schedule to ; and Sections 57(1) and 61(2) of the Economic and Organized Crime Control Act, Cap. 200 R.E 2023 . In the first count, it was alleged that on January 27, 2026, at Subeti area of Serengeti National Park, within Bariadi District in Simiyu Region, the Appellant unlawfully entered the area without permission from the Director of the National Parks. In the second count, it was alleged that on the same date and area, the Appellant was in unlawful possession of weapons, to wit, one machete, one knife, and six animal-trapping wires, without a permit, and failed to satisfy the authorized officers that they were intended for purposes other than hunting, killing, wounding, or capturing wild animals. In the third count, it was alleged that on the same date and area, the Appellant was found in unlawful possession of government trophy, to wit, nine dry pieces of wildebeest meat, equivalent to one wildebeest unlawfully killed, valued at USD 650, equivalent to Tanzanian Shillings 1,656,200/= only, the property of the United Republic of Tanzania. The Appellant resisted the charge. Having gathered the evidence adduced during hearing, the trial Court was satisfied that the offences 2 with which the Appellant was charged were proved beyond a reasonable doubt and proceeded to convict him. In the first count, he was sentenced to pay Tanzanian Shillings 150,000/=, and in default, he was to serve one year in prison. In the second count, he was sentenced to pay Tanzanian Shillings 150,000/= and, in default, to serve a two-year term of imprisonment. In the third count, he was sentenced to 20 years of imprisonment. The sentences were to run concurrently. Dissatisfied, the Appellant has preferred this appeal on the following grounds of appeal; 1. The alleged governm ent trophies were n o t conclusively id e n tifie d b y the Pw2; thus, w hile he sa id the alleged w ild beast had a dark-red brow n color, a rich cap illary netw ork, and p a ra lle l m uscle fib e r diam eter, he d id n ot explain the features o f dom estic anim als. 2 The tria l m agistrate cou rt erred in law and in fa ct to h o ld a conviction because I d id n o t sign the certificate o f seizure. 3. The tria l Court d id n ot properly analyze the elem ents o f each offence against the evidence on record in order to ju s tify its verdict 4. The tria l cou rt m isdirected its e lf when passing sentence because there is contradictory evidence which was adduced b y the p u b lic w itnesses. 5. The prosecution side fa ile d to establish the case beyond reasonable doubt. 3 When the matter came for hearing on May 26, 2026, the Appellant appeared in person, while the Respondent was represented by Mr. Muganyizi Shubi, the learned state attorney. By consent, the parties agreed to argue the appeal orally, with the learned state attorney to address the grounds of appeal first. However, while preparing for the hearing session, I noted that on February 27, 2026, the Appellant defended himself and testified as DW1. After cross-examination, the record is silent on whether he was given an opportunity to re-examine his evidence. Additionally, I noted further that the Appellant was not given an opportunity to cross-examine PW3. In such circumstances, I called the parties to address me on whether that was correct. Kickstarting, Mr. Shubi contended that, having scrutinized the records, he noted that the Appellant was not afforded an opportunity to cross-examine PW3 (H.8174 CPL Iddi Shabani Mheta). He added that, in view of section 246(3) of the Criminal Procedure Act, Cap 20, RE 2023 , if the accused is unrepresented, the court will require the accused to state whether he has any questions for the witnesses. In his view, 4 failure to allow the Appellant to cross-examine PW3 prejudiced him and vitiated the respective proceedings. Mr. Shubi also conceded that after the Appellant was cross examined by the prosecution, he was not given an opportunity to re examine his evidence. Even if he had been so allowed, the records are silent. He finally implored this Court to remit the records to the trial court, where the Appellant will be afforded an opportunity to cross examine PW3 and re-examine his evidence. On his part, the Appellant has nothing to say. Having dispassionately examined the records 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 cross-examine PW3 (H.8174 CPL Iddi Shabani Mheta) and to re-examine his evidence after being cross-examined by the prosecution. Upon reflection on the trial court's records, I am satisfied that there is nothing indicating that the Appellant (accused) was given an opportunity to cross-examine PW3 and re-examine his evidence, having been cross-examined by the prosecution. 5 The order of examination of witnesses under the Evidence Act, Cap 6, R.E 2023, is not cosmetic. Section 156(1) (2) and (3) thereof insists 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 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. In my opinion, failure to allow the Appellant to cross-examine PW4 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 6 No. 66 of 2010) [2013] TZCA 2462 (19 June 2013), the Court noted as follows; There is no gainsaying here th at the appellant, a laym an w ithout le g a l representation, was denied h is b asic rig h t to a fu ll and fa ir hearing, in term s o f A rticle 13 (6) (a) o f the Constitution o f the U nited R epublic o f Tanzania, Cap. 2, R.E. 2002. The om ission b y the tria l Court to com ply w ith section 147 o f the Evidence A ct (supra) vitiated the proceedings: Regarding the right to re-examine the witness, this Court has, time without number, reaffirmed the position that failure to allow the party to re-examine his evidence after cross-examination is also a serious 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; Com pliance to th is statutory order is n o t optional. W itness testim ony is a c ritic a l p a rt o f proceedings and has a d irect bearing on the fin a l determ ination o f a case. W here a p a rty is denied the rig h t to reexam ine a w itness and there is no record indicating th at such rig h t was waived, the evidence is incom plete and le g a lly defective. As to the way forward, Mr. Shubi has urged this Court to remit the record to the trial Court, where the Appellant will have an opportunity to 7 cross-examine PW3 and re-examine his evidence. I totally agree with him because, upon reflection, I have noted that the order of examination of witnesses was accordingly adhered to for all other prosecution witnesses except PW3 and DW1. In this situation, I will not order a total retrial. Instead, I will order that the records be remitted to the trial court, where the Appellant will be allowed to cross-examine PW3. That way, the prosecution will not be able to introduce new evidence. However, since the Appellant was not allowed to cross-examine PW3, the prosecution's case is incomplete. As a result, in the interest of justice, the defence case cannot be left unattended; it is hereby nullified and set aside. In light of the foregoing, the proceedings regarding the testimonies of DW1 are hereby quashed and set aside. Similarly, the Judgment and all resultant orders of the trial Court are hereby vacated and set aside. I direct that the records be remitted to the trial court, where the Appellant will be allowed to cross-examine PW3. If the Court finds the Appellant liable for the offence charged, it shall then invite the Appellant to present his defence. I remind the trial Court to read the testimonies of PW3 before the Appellant is allowed to cross-examine him. Similarly, the trial 8 court is hereby reminded to follow the order of examination of witnesses. Thereafter, the trial Court shall compose a Judgment, if any. It is so ordered. The right of appeal is fully explained. DATED at SIMIYU this 10th day of May 2026. H.S. MTEMBWA JUDGE 9