John Mourice Maginga vs Republic (Criminal Appeal No. 000003230 of 2026) [2026] TZHC 2961 (5 June 2026)

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT ARUSHA DC. CRIMINAL APPEAL NO. 000003230 OF 2026 JOHN MOURICE MAGINGA COMPLAINANT / APPELLANT / APPLICANT VERSUS REPUBLIC RESPONDENT/ DEFENDANT JUDGMENT MAHIMBALI, J This appeal arises from the judgm ent of the District Court of Arumeru at Arusha delivered by Hon. I. T. Nguvava, Resident Magistrate, on 17th January 2026 in Criminal Case No. 2025 / 2025 . The appellant, John Mourice Maginga, was charged with the offence of Obtaining Money by False Pretence contrary to section 302 of the Penal Code, Cap. 16 R.E. 2022. The particulars of the offence alleged that on 21st March 2024, at Meru District Council area within Arumeru District, Arusha Region, the appellant, by false pretence and with intent to defraud, obtained TZS 2,000,000/= from one Victor Anderson Kaaya. At the conclusion of the trial, the learned Resident Magistrate found the appellant guilty as charged and convicted him. Upon conviction, the appellant was sentenced to pay a fine of TZS 500,000/= or, in default, to serve three years imprisonment. Page. 1

Being dissatisfied with the judgment, conviction and sentence, the appellant lodged the present appeal. The prosecution case was that PW3, Victor Anderson Kaaya, approached Meru District Council seeking to hire a roller machine for construction works. He was referred to the appellant, who was then serving as Transport Officer at Meru District Council. The prosecution evidence showed that the appellant received TZS 2,000,000/= from PW3 as hiring charges for the roller machine. The money was paid directly to the appellant. According to the prosecution witnesses, no control number was generated, no official receipt was issued and the money was never deposited into the Council account. PW2, the roller operator, testified that he was instructed by the appellant to take the roller to PW3's work site. The machine arrived at the site and commenced work but shortly thereafter developed mechanical defects and ceased operation. The prosecution further adduced evidence through PW4, PW5 and PW8 intended to demonstrate that Council procedures required payments to be made through official channels and that no payment corresponding to the TZS 2,000,000/= was ever received by the Council. Evidence was also led through PW6 and PW7 showing that the appellant subsequently refunded part of the money to PW3 through MPESA, while the remaining balance was later refunded in cash. The appellant testified on oath in his defence. He admitted receiving the TZS 2,000,000/= but maintained that the money was received in connection with a genuine hiring arrangement involving Council machinery. He explained that the hiring process had not yet been fully completed because the contract still required approval by relevant authorities and Page. 2

generation of a control number. He further testified that the machine was delivered to the complainant's site, commenced work and later broke down due to mechanical failure. According to the appellant, the money was eventually refunded because the intended work could not be completed following the breakdown of the machine. The appellant challenged the conviction and sentence on two grounds, namely:

1. That the learned trial magistrate erred in law and in fact in convicting the appellant without proof of the offence of obtaining money by false pretence beyond reasonable doubt.
2. That the learned trial magistrate erred in law and in fact in convicting the appellant without proper evaluation of the evidence on record. On behalf of the appellant, it was submitted that the prosecution failed to establish the essential ingredients of the offence under section 302 of the Penal Code. Learned counsel argued that no false representation was proved and that there was no evidence demonstrating fraudulent intent on the part of the appellant. Counsel emphasized that the complainant sought to hire a Council roller, a contract was signed, the machine was actually delivered to the complainant's site and work commenced before the machine developed mechanical defects. It was further submitted that the complainant was ultimately refunded the money paid and therefore the evidence was inconsistent with an intention to defraud. Counsel relied on Method Kaluwa v Republic, Criminal Appeal No. 92 of 2021 (CAT) for the proposition that false pretence is an essential ingredient of the offence and on William Owino v Republic, Criminal Appeal No. 460 of 1974 for the principle that criminal intent must be proved. Page. 3

In response, learned State Attorney opposed the appeal and supported the conviction. It was argued that the prosecution had established all the ingredients of the offence. Reliance was placed on Juma Swalehe v Republic [2003] TLR 304 for the proposition that false representation and intent to defraud are the essential elements of the offence. The State submitted that the appellant received TZS 2,000,000/= from the complainant, failed to remit the money to the Council and thereby misrepresented the transaction. It was contended that such conduct demonstrated fraudulent intent. Regarding the second ground, the respondent maintained that the trial court properly evaluated the evidence and reached the correct conclusion. Alternatively, it was argued that this Court, being a first appellate court, is empowered to re-evaluate the entire evidence and arrive at its own conclusions. This being a first appeal, this Court is under a duty to reconsider and re-evaluate the entire evidence on record and draw its own conclusions while bearing in mind that it neither saw nor heard the witnesses testify. The principles governing a first appeal are well settled. A first appellate court is required to subject the evidence to fresh and exhaustive scrutiny and arrive at its own independent findings while giving due allowance to the trial court's advantage of seeing and hearing the witnesses. Guided by those principles, I have carefully examined the entire record of appeal, the judgm ent of the trial court, the grounds of appeal and the submissions of both parties. Having considered the record of appeal, the rival submissions of counsel and the applicable law, I find it convenient to determine both grounds of appeal together because they are intertwined and revolve around the question whether the offence charged was proved Page. 4

beyond reasonable doubt. The principal issue for determination is whether the prosecution established all the ingredients of the offence of obtaining money by false pretence contrary to section 302 of the Penal Code. Section 302 of the Penal Code creates the offence of obtaining money or other property by false pretence. The offence must be read together with section 301 of the Penal Code which defines false pretence as:- "Any representation made by words, writing or conduct o f a matter o f fact either past or present, which representation is false in fact and which the person making it knows to be false or does not believe to be true . " Judicial authorities have consistently held that for the offence to be established, the prosecution must prove: the existence of a false representation; knowledge by the accused that the representation was false; an intention to defraud; and that the false representation induced the complainant to part with his property. See Juma Swalehe v Republic [2003] TLR 304 and Method Kaluwa v Republic, Criminal Appeal No. 92 of 2021 (CAT). It is equally settled that suspicion, however strong, cannot take the place of proof. The burden throughout remains upon the prosecution to prove each ingredient beyond reasonable doubt. In re-evaluating the evidence in record, there is no dispute regarding certain material facts. First, the complainant approached Meru District Council seeking to hire a roller machine. Second, the appellant was at all material times the Transport Officer of the Council and was responsible for matters relating to Council vehicles and machinery. Third, the complainant paid TZS 2,000,000/= directly to the appellant. Fourth, the money was not deposited into the B r a Page. 5

Council account. Fifth, the roller machine was dispatched to the complainant's site. Sixth, the machine commenced work before developing mechanical defects. Seventh, the complainant was eventually refunded the whole amount paid. The dispute concerns the legal significance of those facts. Whether a False Representation Was Proved. Upon my own evaluation of the evidence, I find that the prosecution did not clearly establish the specific false representation allegedly made by the appellant. The evidence of PW3, the complainant, shows that he approached the Council for the purpose of hiring a roller machine. He was introduced to the appellant in his capacity as Transport Officer. A hiring arrangement was entered into and the machine was eventually dispatched to the site. Neither PW3 nor any other witness identified any particular statement made by the appellant which was false at the time it was made. The prosecution appears to have relied on the fact that the appellant received money personally and failed to deposit it into the Council account. While that conduct may amount to breach of financial procedures or administrative misconduct, it does not automatically constitute a false pretence within the meaning of sections 301 and 302 of the Penal Code. The offence charged required proof of a false representation and not merely proof of procedural irregularity. The record discloses that the roller machine actually existed, belonged to the Council, was dispatched to the complainant's site and commenced work. Those facts substantially support the appellant's assertion that the transaction was genuine and not fictitious. Whether Fraudulent Intent Was Established. The prosecution was further required to prove that the appellant possessed fraudulent intent at the time he received the money. The evidence on record reveals that: a contract was executed; the machine was supplied; work

commenced; mechanical failure occurred during performance; and the complainant was eventually refunded. These circumstances are not readily consistent with an intention existing from the outset to defraud the complainant. Although the appellant's conduct in personally receiving and retaining the money raises legitimate concerns, the offence charged was not misconduct in public office, misappropriation or breach of financial regulations. The charge was obtaining money by false pretence. The evidence before the trial court did not satisfactorily establish that at the moment he received the money, the appellant intended to deceive the complainant and permanently deprive him of it. Whether, there was Failure by the Trial Court to Properly Evaluate the Defence. The trial court correctly observed that the appellant received money personally and failed to remit it to the Council’s account. However, the judgm ent does not sufficiently address several important aspects of the evidence, namely: the existence of the hiring contract; the actual dispatch of the roller machine; the commencement of work at the complainant's site; the mechanical breakdown of the machine; and the subsequent refund of the money. These matters were not merely peripheral issues. They went directly to the question whether the appellant acted with fraudulent intent. In my respectful view, the learned trial magistrate concentrated principally on the irregular handling of the money while paying insufficient attention to whether the prosecution had established the essential ingredients of the offence charged. The result was that procedural irregularities were effectively treated as conclusive proof of obtaining money by false pretence. I am unable to agree with that approach. Whether the Conviction Was Safe. Having independently reconsidered the entire evidence, I am not satisfied that the prosecution proved beyond reasonable doubt that the

appellant obtained the complainant's money through a false pretence as contemplated under sections 301 and 302 of the Penal Code. At its highest, the evidence established that: the appellant received money directly from the complainant; he failed to channel the money through official Council procedures; the money remained outside Council accounts; and the money was eventually refunded. Those facts may justify administrative or disciplinary action and may raise questions regarding compliance with public financial regulations. However, they do not, in the circumstances of this case, prove beyond reasonable doubt the offence of obtaining money by false pretence. The evidence left open a reasonable possibility that the transaction was a genuine hiring arrangement which later failed because of mechanical breakdown of the Council machine. Where such doubt exists, the law requires that it be resolved in favour of the accused person. For the reasons stated above, I find merit in both grounds of appeal. Accordingly, the appeal is allowed. The conviction for the offence of Obtaining Money by False Pretence contrary to section 302 of the Penal Code is hereby quashed and the sentence imposed by the trial court is set aside. The verdict notwithstanding, the evidence in record justifies administrative or disciplinary action against the appellant as the transaction done raise questions regarding compliance with public financial regulations amounting to breach of financial procedures and or administrative misconduct. Since the offence charged was not misconduct in public office, misappropriation or breach of financial regulations, the appellant, JOHN MOURICE MAGINGA, is acquitted. He shall be released forthwith unless he is otherwise lawfully held. It is so ordered. Page. 8

Dated at ARUSHA this 5th of June 2026 F. H MAHIMBALI JUDGE OF THE HIGH COURT