Nongu Bundala Bucheyeki vs Republic (Criminal Appeal No. 7613 of 2026) [2026] TZHC 3131 (10 June 2026)

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SIMIYU SUB - REGISTRY AT SIMIYU CRIMINAL APPEAL NO. 7613 OF 2026 (Arising from the Judgment of the District Court of Meatu (Hon. G.R. Rwekiti, SRM) in Economic Case No. 29619 of 2025 dated 9th March 2026) NONGU BUNDALA BUCHEYEKI.................................. APPELLANT VERSUS REPUBLIC...............................................................RESPONDENT JUDGEMENT 19th May & 10thJune 2026 MTEMBWA, J.: This Appeal stems from the decision of the District Court of Meatu in Economic Case No. 29619 of 2025, in which the Appellant was charged with two offences of Unlawful Possession of Government Trophies, contrary to Section 86(1) and (2)(c)(iii) of the Wildlife Conservation Act Cap 283 R.E 2023, read together with Paragraph 14 of the First Schedule to the Economic and Organized Crime Control Act, Cap 200 R.E 2023 , and unlawful possession of a weapon in the Wildlife Management Area, contrary to Section 103 of the Wildlife Conservation Act, Cap 283 R.E 2023 . 1 In the first count, it was alleged that on December 2, 2025, at Wimawima area of Wildlife Management Area Makao (WMA) within Maswa Game Reserve, Meatu District, Simiyu Region, the Appellant was found in unlawful possession of government trophies, to wit: one fresh buffalo cervical and one fresh piece of buffalo rib, equivalent to one unlawfully killed buffalo, valued at USD 2500 (equivalent to Tanzanian Shillings 6,136,300/=), the property of the Tanzanian Government, without a written permit from the Director of Wildlife or prior application and approval. In the second count, it was alleged that at the same area and date, the Appellant was found in unlawful possession of a weapon, to wit, one bush knife, without a permit, and failed to certify to the authorized officers that the same was intended to be used for purposes other than hunting, killing, wounding, or capturing wild animals. Briefly, on December 2, 2025, PW2, together with ten other game reserve officers, including PW3, were patrolling the Hendeshi area. At 22:00 hours, they observed a torchlight approaching and decided to investigate. While there, using their torches, they saw the Appellant 2 and arrested him in possession of one fresh buffalo cervical and one fresh piece of buffalo. The Appellant was also in possession of a machete. They interviewed him to determine whether he had permission from the respective officer, and he stated he had none. Thereafter, PW2 filed the certificate of seizure (Exhibit P4), which was also signed by his fellow officers and the Appellant, who affixed his thumbprint. The Appellant was then taken to the police station, where the exhibits were handed over to the exhibit keeper (PW4). According to the Map (Exhibit P9) tendered by PW6, the Appellant was arrested within Hendeshi, within Makao WMA. The Appellant resisted the charge, asserting that he did not commit the offence. In his defence, the Appellant testified that on the alleged date, he went to buy a hoe handle and, on his return, met the game reserve officers in the village, who arrested him. After arresting him, they tortured him, forcing him to admit that he had been found in possession of the meat. In the end, to save his life, he admitted the crime. 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 3 convict him. According to the records, he was not sentenced. However, according to the notice of intention to appeal dated March 13, 2026, and the petition for appeal dated April 8, 2026, the Appellant was sentenced to serve 20 years imprisonment on each count, with an order that the sentences shall run concurrently. Dissatisfied, the Appellant has preferred this appeal on the following grounds of appeal; 1. That the trial magistrate erred in law and fact by relying on inconsistent and uncorroborated prosecution evidence to convict the appellant. 2. That the trial Court erred in law in holding that possession was proved beyond a reasonable doubt. 3. That the trial magistrate erred in law by accepting that the exhibit (meat) was a government trophy without proper expert verification. 4. That the trial magistrate erred in law by relying on the accused's alleged admission without ensuring compliance with legal requirements on confessions. 5. That the trial Court erred in law by admitting exhibits despite procedural irregularities. 6. That the trial magistrate erred in law in convicting the appellant even though the prosecution failed to prove the case beyond reasonable doubt 7. That the trial Court erred in law by applying economic crime provisions without properly establishing the offence within the scope o f the Economic and Organized Crime Control Act 4 When the matter came for hearing on May 19, 2026, the Appellant appeared in person, while the Respondent was represented by Mr. Jese Mwanisawa, the learned state attorney. By consent, the parties agreed to argue the appeal orally. However, the Appellant preferred that the learned state attorney address the grounds of appeal first, and he would reply later. On my part, I will first examine the fifth ground of appeal, in which the Appellant complained that the trial Court erred in law by admitting exhibits despite procedural irregularities. The learned state attorney conceded an irregularity in the admission of the exhibits. He added that when the Appellant was asked whether he had an objection to the admissibility of the exhibits, he said he did not know how to read. The trial Court did not require the Public Prosecutor to address the issue; instead, it admitted the exhibits. He submitted that this was not a legal objection that the trial Court could rule out. He argued that, in any case, the Appellant was not prejudiced, as this irregularity is curable under section 411 of the Criminal Procedure Act . He cited the case of Director of Public Prosecutions vs Sharif s/o Mohamed @ Athumani and Others (Criminal Appeal No. 74 of 2016) [2016] 5 TZCA 2170 (4 August 2016), in which the Court held that illiteracy is not an objection that can affect admissibility. The Appellant had nothing to say on this. Having dispassionately considered the submissions by the learned state attorney, the question is whether this appeal can be disposed of based on the fifth ground of appeal. Having reviewed the proceedings of the trial Court, I noted that on various dates, the prosecution witnesses tendered the following exhibits; Trophy Valuation Certificate (Exhibit P1), Inventory Form (Exhibit P2), Disposal Order (Exhibit P3), Certificate of Seizure (Exhibit P4), Bicycle (Exhibit P5), Kikoi (Exhibit P6), Machete (Exhibit P7), Chain of Custody Record Form (Exhibit P8), and Map (Exhibit P9). According to the records, when the prosecution witnesses sought to tender the exhibits, the Appellant either replied, "I don't know how to read," "I am illiterate," or "I cannot read." Thereafter, the trial Court admitted and marked the respective exhibits. Indeed, according to the Exhibits Management Guidelines published by the Judiciary of Tanzania in December 2020, the following steps must be followed when tendering the exhibit in Court, specifically in criminal cases. 6 Step 1: Ensure a witness has laid a foundation evidence for tendering an exhibit, (i.e. witness explains how the exhibit is connected to the case and how it came in his possession). Step 2 : Ensure the exhibit is shown to the opposing party for comment. Step 3 : Whether or not there is an objection, the exhibit will be shown to a magistrate orjudge to see and inspect. Step 4: Where there is an objection, the party who seeks to tender that exhibit has to be accorded an opportunity to respond; in case a new point is raised by a party proposing to tender it, then the party objecting will rejoin. Step 5 : (i) Where there is no objection, the judge or magistrate may admit the exhibit provided it has passed the admissibility test. Step (i) Where there is an objection, the presiding judge or magistrate will rule on the admissibility o f the exhibit. Step 6: () When the exhibit is rejected it will be returned to the party who proposed to tender it. Step (ii) When the exhibit is admitted the judge or magistrate will mark and endorse it. Step 7 : Once the exhibit is admitted, a person tendering the exhibit shall read out its contents in Court. (see page 4 thereof) 7 Drawing from the above, when a witness seeks to tender any document, she must first lay a foundation for the exhibit. In that, she must explain how the exhibit is connected to the case and how it came into her possession. Thereafter, the same exhibit may be shown to the opposing party for comment. If there is an objection, the party seeking to tender the exhibit must be accorded an opportunity to respond; if a new point is raised by the party proposing to tender it, the party objecting will rejoin. If there is no objection, the judge or magistrate may admit the exhibit, provided it has passed the admissibility test. However, if there is an objection, the presiding judge or magistrate will rule on the admissibility of the exhibit. If the exhibit is rejected, it will be returned to the party who proposed to tender it; otherwise, the judge or magistrate will mark and endorse it. Once the exhibit is admitted, the person tendering it shall read its contents in Court. In this case, as noted earlier, when the prosecution witnesses sought to tender the exhibits, the Appellant replied, "I don't know how to read," "I am illiterate," or "I cannot read." Thereafter, the trial Court admitted and marked the respective exhibits. In my opinion, when the opposing party, say the accused, does not clearly state that he has no 8 objection or agrees to the prayer to admit the exhibits, that means he is objecting to the admission, regardless of the words or style used. The trial Court must therefore have treated the words "I don't know how to read," "I am illiterate," or "I cannot read" as equivalent to an objection to the admissibility of the respective exhibit. In such circumstances, the trial Court was supposed to rule on the objection after hearing the prosecution, before an order admitting the exhibit was entered. The records do not even reveal whether the rulings on the respective objections were reserved for the next session. On the same occasion, this Court in Mashaka Masota Puna vs Republic (Criminal Appeal No. 5605 of 2026) [2026] TZHC 1330 (13 April 2026) resolved as follows; Another procedural irregularity was that whenever the exhibits were to be tendered, the Appellant said "Sikijui” or "Sivitambui." ................. When the opposing party, say the accused, does not clearly state that he has no objection or agree to the prayer to admit the exhibits, that means he is objecting to the admission, regardless o f the words or style used. The trial Court must therefore have treated the word "Sikiju"" or "Sivitambu"” as equivalent to an objection to the admissibility o f the respective exhibit. That being the case, the trial Court was supposed to rule out before an order to admit the exhibit is entered. 9 The concepts of fairness, justice and reason are interchangeable, and one cannot be achieved without the other. The reason is the link between the decision itself and the mind of the decision maker. It is considered inextricably bound up with natural justice, the right tobe fairly heard, and is fundamentally important as a public law principle. It has been described by Lord Denning MR in Breen vs AEU [1971] 1 All E.R. 1148, 1154 as "one of the fundamentals of good administration." In Impresa di Costruzioni Inge Mantovani SPA vs DB Shapriya & Co. Limited (Civil Appeal No. 314 of 2022) [2025] TZCA 547 (3 June 2025), the Court noted as follows; On our part, we think that, the irregularity involving instances o f the failure by the trial Court to give reasons for rejecting and or admitting certain documents as it had promised in its several orders on record is a matter that offends the parties ' right to be heard which is, in itself, a serious irregularity occasioning injustice to the parties as intimated herein above. The above views, we think also aptly apply to the instant case. The documents at stake were pleaded and brought by the parties in a bid to make and prove their respective case. Yet, after being objected to, they were admitted and rejected respectively without assigning reasons and therefore without considering the rival submissions o f the counsel for the parties. 10 Likewise, since the irregularity in the instant case infringes right to be heard o f the parties on account o f the failure by the learned trial Judge to give reasons for his decisions admitting and or rejecting respective documents which were, undisputedly, part o f the pleadings, we think the omission amounts to a fatal irregularity vitiating the relevant proceedings. On that account, therefore, we find that, the instances o f irregularity raised by Mr. Mushi which are apparent on record suffice to dispose o f the appeal, but not on the merit o f the raised grounds o f appeal. In light of the above excerpt, I hasten to say that failing to rule out the objection to the admissibility of the respective exhibits is, by and large, a serious violation of the right to be heard and has vitiated the respective proceedings. As noted before, it undermined the whole concept of the right to a fair hearing. To that end, I disagreed with the learned state attorney that the Appellant was not prejudiced. Even if illiteracy is not an objection that can affect the admissibility of an exhibit, justice and fairness demand that a decision maker gives reasons on a certain issue, which, by itself, seems not to be equivalent to no objection. As said before, the trial Court must have treated the words "I don't know how to read," "I am illiterate," or "I cannot read" as equivalent to an objection to the admissibility of the respective 11 exhibit. In such circumstances, the trial Court must have ruled on admissibility before it is admitted. It is a rule of the law that when exhibits are improperly admitted, the correct procedure is to expunge them from the record (see A.A.R Insurance Tanzania Ltd vs Beatus Kisusi (Civil Appeal No. 67 of 2015) [2016] TZCA 2065 (31 May 2016 ). In the premises, Trophy Valuation Certificate (Exhibit P1), Inventory Form (Exhibit P2), Disposal Order (Exhibit P3), Certificate of Seizure (Exhibit P4), Bicycle (Exhibit P5), Kikoi (Exhibit P6), Machete (Exhibit P7), Chain of Custody Record Form (Exhibit P8), and Map (Exhibit P9) are hereby expunged from the records. As to the way forward, I am aware that a retrial will not be automatically ordered. In Fatehali Manji vs Republic (1966) EA 343 and Shaban Abdallah vs Republic, Criminal Appeal No. 255 of 2013 , the Court held that there is no rule of thumb that a retrial will be ordered whenever the original trial is illegal or defective. A retrial should be ordered only when the interests of justice demand it. Even where a conviction is vitiated by a mistake of the trial Court for which the prosecution is not to blame, it does not necessarily follow 12 that a retrial should be ordered; each case must depend on its own facts and circumstances, and an order for retrial should be made only where the interests of justice require. While I acknowledge that the Appellant has spent some months in prison, upon reflection, I am constrained to hold that the interests of justice require a retrial of the case due to the defective trial. For the avoidance of doubt, should the trial Court find the Appellant guilty, the time spent in prison from the date of conviction of the impugned decision should be deducted from the sentence to be imposed, if any. By this resolution, I will not look into other grounds of appeal, as this alone suffices to dispose of this appeal. By way of passing, I have noted another fundamental irregularity. As stated before, the Appellant is serving a prison term, yet there is no record indicating that the trial court imposed such a sentence. The mind-boggling question is how he was admitted and detained by the prison administration. I say this because the impugned judgment contains no sentence at all. In such circumstances, it is even difficult to examine the sentence imposed by the trial Court. 13 In the upshot, the proceedings, judgment, and all resultant orders are hereby nullified and set aside. I order that the records be remitted to the trial Court for retrial with immediate effect. I remind the trial Court to adhere to the law, experience, and practice regarding the admission of exhibits into the record. Similarly, should the trial Court find the Appellant liable and ultimately convict him of the charged offences, it shall then sentence him in accordance with the law. I order accordingly. The right of appeal is fully explained. DATED at SIMIYU this 10th day of June 2026. H.S. MTEMBWA JUDGE 14