Republic vs Ibrahim Shaban Ngunde (Economic Case No. 617 of 2026) [2026] TZHC 3032 (9 June 2026)

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA CORRUPTION AND ECONOMIC CRIMES DIVISION AT DARES SALAAM ECONOMIC CASE NO. 617 OF 2026 THE REPUBLIC VERSUS IBRAHIM SHABAN NGUNDE RULING Date o f Ruling: 09/06/2026 Mambi,J. This Ruling emanates from the objection raised by the defence counsels M r. Josephat Mabula and Neherriia Nkoko, the learned’ Counsels for defence, objected to the Notice for additional Exhibits and witnesses. I have gone through submission by both parties in line with the intended notice to call additional witnesses and introduce additional exhibits. Having completed examination in-chief for the 8th Witness (PW8) the Prosecution prayed to introduce Notice to call additional witnesses and exhibits that were not part of the committal. i

Mr. Nehemia Nkoko argued that the notice is not reasonable as per the requirements of the law under section 308(3) of the CPA, Cap 20. He added that the prosecution notice has come after cross examination of PW1 in attempt to pre-empty defence case and cited the court decision in Republic Vs. Abuu Salehe economic case No. 7 of 2024 Tanzlii to emphasis their submission. On their reply to the preliminary objection briefly averred that, the reasonability of notice to add evidence is on the discretion of the court. They argued that they field the notice on 28/5/2026 and they served the defence in the same day the prosecution was acquainted by the evidence on 25/5/2026. The learned State Attorneys submitted that their notice has complied with the requirements of Section 308 CPA, Cap 20. They were of the view that the cases referred by the defence are distinguishable. To substantiate their argument, the e prospection also referred section 152 of the evidence Act Cap.6. Before I address the validity and competency the notice, I wish highlight that there are general Conditions and legal requirements for Producing Additional Evidence. One of the legal requirements is that the evidence was unavailable despite due diligence. This means that the party seeking to

rely on it must show that the evidence or witness was not available at the time of the trial or earlier proceedings despite reasonable efforts to obtain it. Secondly, the evidence would serve the interests of justice which means that the court must be satisfied that admitting the evidence is necessary for a fair determination of the case. Thirdly, the court must satisfy itself that no undue prejudice to the opposing party. In other words, the opposing party must have a reasonable opportunity to examine, challenge, or rebut the additional evidence. Fourthly, such notice is intended to fill gaps in the Case. This means that a party should not use additional evidence merely to repair weaknesses revealed during the trial. Fifthly, admission of the notice and document listed under that particular notice will not cause unfair prejudice. The rationale of this requirement is that the opposing party must be given a fair opportunity to Inspect and challenge the evidence. Lastly but not least the court should consider whether such admission of the notice and accompanying documents is necessary in the Interests of Justice. This condition is to the effect that 3

the overriding consideration is whether admitting the additional evidence arising from such notice will assist the court reach a just decision and prevent a miscarriage of justice. The question that needs to be answered is that has the prosecution in producing such notice met the above conditions?. Indeed, the above conditions are well-backed up by the relevant laws such as the the Criminal Procedure Act Cap 20. I also wish to specifically cite the relevant of provisions, of the law that is section 308 of The Criminal Procedure Act Cap 20 which reads as follows; "308.-(1) A witness whose statement or substance o f evidence was not read at committalproceedings shaii not be called by the prosecution at the trial unless the prosecution has given a reasonable notice in writing to the accused person or his advocate o f the intention to call such witness. (2) The notice shall state the name and address o f the witness and the substance o f the evidence which he intends to give. (3) The court shall determine what notice is reasonable, regard being had to the time when and the circumstances under which the prosecution became acquainted with the nature o f the witness's evidence and determined to call him as a witness; but no such notice need be given if the prosecution first became aware o f the evidence which the witness would give on the date on which he is called. 4

(4) For the purpose o f this section, "substance o f evidence" includes substance contained in a document, record or any other tangible object" The objection raised by the defence counsels have based on the reasonability of the notice. The legal issue to be determine is whether the prosecution has produced reasonable notice. It should be noted that for a notice to be considered reasonable one must meet the test and condition under section 308 of CPA Cap 20 the above eight conditions I have listed. It follows that for the notice to produce new evidence to be reasonable the party relying on such notice must state that the intended evidence or witness was genuinely unavailable at the commencement and at the earliest stage of trial and the producer of the notice must act promptly after discovering without undue delay. One should have expected for example the notice stating that "after the commencement of the trial, the witness or the prosecution lately obtained the documents from a third party which were unavailable despite earlier requests". Looking at the Notice in our hand, the prosecution in their notice have stated that The Republic became acquainted with the nature of evidence during 5

trial on 25th May, 2026 and will be tendered by GEORGE MKWERA and SHOMARY ATHUMANI. In their Notice the prosecution indicated that the initial owner of that car that was alleged to be found with the accused was GEORGE MKWERA as indicated under the Motor Vehicle Registration with registration No. T538 EEK. However, the records reveals that the Motot Vehicle Registration Card with the name GEORGE MKWERA whom prosecution intended to call him as additional witness in their notice was part of the committal proceedings. This is also backed by the statement dated on 7th March 2025 of GEORGE MKWERA whom the prosecution intends to be additional witness. I wish to reproduce part of the statement of GEORGE MKWERA (an intended additional witness) as follows; "Mimi nilimuambia afisa huyo kuwa gari hiyo nilishauza hivyo siyo tena ma/i yangu nima/iya ShomariAthuman Kiyumbo hivyo niiiweza kutoa mkataba wa mauziano baina yangu na Shomary Athuman Kiyumbo Hi kuthibitisha haya ndiyo mae/ezo yangu yameandikwa kwa usahihikama nHivyo e/eza". The above statement in my view shows that the prosecution was aware of the substance evidence of the initial owner of the motor vehicle with registration number T538 EEK make Honda Freed and they ought to list him as part of their witness or call him at the earlier stage of the trial. The argument that the prosecution became acquainted with the nature of

evidence during trial on 25th May, 2026 has no merit since they were aware even during seizure and committal. Presumably, in the absence of the clear reason on the availability of the intended witness one my assume that the prosecution intended to fill gaps in their evidence. It is trite law that a party should not use additional evidence merely to repair weaknesses revealed during the trial and court. It is a cardinal principle that court should not allow any likelihood of attempts to re-open a case or Introduce evidence that could easily have been produced at trial merely because a party forgot to call a witness. The prosecution in their Notice has stated that the substance of evidence is to the effect that he was the initial owner of the motor vehicle with registration number T538 EEK make Honda Freed and that at the time the alleged incident occurred the said motor vehicle was neither under his possession, control nor ownership. In my view, this statement cannot at any rate meet the legal requirements of reasonability of the notice in our case given the fact the documents reveals that the prosecution were aware of the initial owner that is the name of the initial owner that was appearing under the motor vehicle registration card that was committed even during seizure of the Motor Vehicle and during committal. In my considered

view, introducing additional evidence or calling additional witness after the prosecution has used seven witnesses knowing that they were aware of availability of such intended documents and witnesses before the commencement of trial, contravenes the provisions of the laws such as section 308 of CPA Had the prosecution during committal not produced the Motor Vehicle Registration card (exhibit PE6) that bears the name of GEORGE MKWERA (intended additional witness) who is the pupated initial owner of the motor vehicle with registration number T538 EEK make Honda Freed (exhibit PE7) one would assume that the prosecution became acquainted during trial and could easily made their notice reasonable. On the other hand, one would have expected the prosecution to tell the court that the witness was unavailable, say because he was outside the country, sick or for any reasonable cause for a long time and they became aware of his availability during trial then the prosecution could be on a safe side to produce a reasonable notice that could easily be received by the court. Coming to the other intended witness namely Shomary Athumani the records (his statement) appear to have been recorded on the 5th March 2025 show 8

the prosecution were aware, but the witness was not called at the earlier stage of the trial without reasons. I am aware that the reasonability of notice is on the discretion of the court. However, basing on the above analysis, I am convinced to believe that the intended prosecution Notice to call additional witnesses is fatally unreasonable and I hold so. It is trite law that a notice of additional evidence or application to call an additional witness becomes unreasonable when it does not satisfy the requirements of the time when the prosecution became acquainted with the nature of the intended documentary evidence, the circumstances under which so became acquainted, when they so determined to call evidence as additional evidence, fairness, due diligence, and the interests of justice. Conversely, where the party files a notice of additional evidence during trial relying on the document that were already committed and known witness during committal seeking to relay on a document or call a witness who was known to him without giving clear explanation for the delay, such a notice would ordinarily in my view be considered unreasonable. This is due to the fact that the witness was known and available earlier, there is no due diligence and the timing prejudices the accused.

Indeed, courts are generally reluctant to admit additional evidence where the reasons under the notice or application appears to be an afterthought or an attempt to repair a weak case. I therefore, agree with the defence that unless the notice is produced as additional evidence in terms of section 308 (1) of the CPA, it becomes fatally unreasonable. I am persuaded by the decision of my colleague Justice Kisanya in The Republic Versus Abuu Saiehe Kimboko Economic Case No. 7 O f2023 where he stated that: "Since the notice for the additional witness did not clearly state the criteria set out by the law, this Court cannot admit the notice that is not treasonable unless such notice for additional exhibits complies with section 308(2) and (3) o f the CPA". The fact that the prospection knew about the evidence or witness during the committal and even at the early stage of the trial but did not produce the notice at the earliest stage and they did not clearly explain why the evidence was not produced earlier renders such notice unreasonable as such notice can cause undue prejudice to the defence (the accused). Having became aware of the witnesses to be added after filing the documents such as the Motor Vehicle Registration Card, the prosecution ought to have acted on filing notice without unnecessary delay after discovering the evidence as such evidence might have served the interests of justice 10

From the reasons stated above, I am of the settled view that the preliminary objection raised by the defence counsel through the learned Counsel Mr Mabula and Nehemia has merit. In the premises, I sustain preliminary objection raised by the defence counsel and thus the Notice to call additional witnesses and add exhibit dated on 28/05/2026 is unreasonable and shall not be received by this court as part of Criminal Case No 617 of 2026. ) A. Mambi Judge 9.06. 2026 Court: ruling delivered this day of 09/06/2026 before all parties. A. Mambi Judge 9.06. 2026 li