Sijali Chabiko Kinyonga @ Wakusizi vs Republic (Criminal Appeal No. 19770 of 2025) [2026] TZHC 2977 (5 June 2026)

1 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB-REGISTRY AT DAR ES SALAAM CRIMINAL APPEAL NO. 19770 OF 2025 (Arising from the decision of the District Court of Ilala at Kinyerezi in Economic Case No. 14455 of 2024 before Hon. B. I. Mwakisu-SRM) SIJALI CHABIKO KINYONGA @ WAKUSIZI …………………………APPELLANT VERSUS THE REPUBLIC……………………………………………………………RESPONDENT JUDGMENT Date of last order: 15/05/2026 Date of judgment: 05/06/2026 A.A. MBAGWA, J. Before the District Court of Ilala, the appellant, who stood as the 1 st accused person, and one Justin Joctan Luhaula, who stood as the 2 nd accused person, were separately charged with different offences. Whereas as the appellant was solely charged, in the 1 st count, with Unlawful Possession of the Government Trophy contrary to Section 86(1), (2) (b) of the Wildlife Conservation Act [Cap 283 R.E. 2022] as read

2 together with Paragraph 14 of the First Schedule to, and section 57(1) and 60(2) of the Economic Organized Crime Control Act [Cap 200 R.E 2022], the 2 nd accused, Justin Joctan Luhaula was charged, in the second count, with Unlawfully Dealing with Trophies contrary to Sections 80(1) and 84(1) of the Wildlife Conservation Act [Cap 283 R.E. 2022] as read together with Paragraph 14 of the First Schedule to, and section 57(1) and 60(2) of the Economic Organized Crime Control Act [Cap 200 R.E 2022]. In the first count, it was alleged that SIJALI CHABIKO KINYONGA @ WAKUSIZI, on the 18 th day of October, 2022, at Buguruni Sheli area, within Ilala District in Dar es Salaam Region, were found in unlawful possession of ten (10) pieces of Elephant tusks valued at USD 15,000, equivalent to TZS. 34,451,881.5, the property of the United Republic of Tanzania, without a permit from the Director of Wildlife. In the second count, it was alleged that JASTIN S/O OCKTAN @ UHAHULA on the diverse dates in October 2022 within Ilala District in Dar es Salaam Region, was dealing in selling of ten (10) pieces of elephant tusks valued at USD 15,000, equivalent to TZS. 34,451,881.5, the

3 property of the United Republic of Tanzania, without a trophy dealer’s licence. Both accused persons denied their respective charges; hence, a full trial ensued. It is also important to note at this juncture that this appeal is in respect of the 1 st accused, SIJALI CHABIKO KINYONGA @ WAKUSIZI , the appellant in this appeal. The 2 nd accused, JASTIN S/O OCKTAN @ UHAHULA, was acquitted, although the trial court record is not clear on that. In a bid to establish the allegations, the prosecution’s side called a total of nine (9) witnesses , along with six documentary exhibits and two physical exhibits. In their defence, both accused persons testified under oath and did not call any witnesses. More so, the 1 st accused person tendered four documentary exhibits. For purposes of completeness, it is imperative to provide the factual background that gave rise to the present appeal, albeit briefly. The prosecution’s evidence was that, on 18 th October 2022, following intelligence and a controlled operation involving a whistleblower (PW2), the law enforcement officers intercepted a Bajaji at Buguruni Sheli and

4 recovered ten pieces of elephant tusks, together with a knife and a saw (Exhibit P2). According to PW3, who led the arrest operation, five persons were found in the tricycle (bajaj), namely: E.5840 Sergeant Kirina, a bajaji rider (PW4), the appellant and two other people. PW4, the Bajaji rider, had it that the appellant was one of the passengers who owned the bags that carried the elephant tusks. Subsequently, the recovered trophies were seized, documented, and kept in police custody (Exhibits P1, P2 and P3) accordingly. PW6, a wildlife conservation officer, identified the recovered items as elephant tusks weighing 10.794 kilograms and valued them at USD 15,000 (Exhibit P6). Furthermore, the prosecution relied on cautioned statements allegedly made by both accused persons (Exhibits P7 and P8), wherein they confessed involvement in the offences. In their defence, both accused persons maintained their innocence. The 1 st accused, the appellant, contended that he was merely a passenger in the Bajaji and had no knowledge of the elephant tusks recovered therein. He further challenged the handling of the exhibits and produced documents relating to an earlier economic case involving similar allegations (Exhibits D1, D2, D3 and D4).

5 The 2 nd accused denied being present at the scene, contending that he was arrested separately in Mlimba, Morogoro, and was subsequently linked to the case without any witness having identified him at the scene. He further challenged the prosecution's evidence regarding his alleged involvement. He also complained about the inconsistencies surrounding the Bajaji registration particulars. Upon evaluation of the evidence, the trial court found that the prosecution had proved its case against the 1 st accused person beyond a reasonable doubt and consequently convicted him on both counts, although he was charged with only one count, the 1 st count. Consequently, the trial Court sentenced the appellant to an imprisonment of twenty (20) years for each count, with an order to run concurrently. Notably, the 2 nd accused person was acquitted after the trial court found the evidence against him insufficient to establish his participation in the offences charged. Aggrieved by the verdict and sentence of the trial Court, the appellant has laid before this Court the following eight grounds of appeal:

1. That, the learned trial magistrate erred in law and fact to convict the appellant by holding preliminary hearing contrary to section 192 (3) of Cap.20.

6 2. That, the learned trial magistrate erred in law to convict the appellant contrary to section 312 (2) of Cap 20. 3. That, the learned trial magistrate erred in law to convict and sentence the appellant basing on filed consent and certificate which did not depict date and provision of law. 4. That, the learned trial magistrate erred in law and fact to convict appellant based on the PW1, PW2, PW3, PW4 and PW8 evidence as to who was the actual owner of the Exh. P2 (elephant tusks) 5. That, the learned trial magistrate erred in law and fact to convict appellant based on the PW3 and PW4 evidence who have interest to save and failed to clear doubt whether Sgt Kirina and Bonge was the same person. 6. That, the learned trial magistrate erred in law and fact to convict and sentence the appellant for failure to notice that no matter what way the person obtains acquittal he is entitled to protection from further proceeding. 7. That, the learned trial magistrate erred in law and fact to convict the appellant for the Exh. P.2 (elephant tusks) where the chain of custody was not proved beyond reasonable doubts.

7 8. That, the learned trial magistrate erred in law and fact to convict and sentence the appellant for the case that was not proved beyond reasonable doubts to the standard required by law. At the hearing of the appeal, the appellant appeared in person, unrepresented, whereas the respondent Republic was represented by Ms Caroline Assenga, the learned State Attorney. By consent of both parties, this Court ordered the appeal to be disposed of through written submissions. I commend both parties for their informative submissions, which were duly filed. However, for the reasons that shall be apparent shortly, I shall not delve into all the grounds of appeal, as the 2 nd ground suffices to dispose of the appeal. Submitting in support of the 2 nd ground of appeal, the appellant briefly but focused argued that the trial Court failed to comply with section 312(2) of the Criminal Procedure Act, Cap. 20 (now section 331 (2) [Cap. 20 R.E. 2023] (the CPA), which requires a judgment of conviction to specify the offence for which the accused is convicted and the statutory provision under which the conviction is entered. He contended that although the learned trial Magistrate convicted the appellant, the judgment did not expressly state the offence of which he was convicted,

8 nor did it cite the relevant provision of law under which the conviction was entered. To the appellant, the omission is a material irregularity rendering the judgment defective and thus prays that the conviction be quashed and the sentence set aside. Responding to the 2 nd ground of appeal, the learned State Attorney admitted that the learned trial Magistrate did not restate the enabling statutory provisions on the same page where the conviction was recorded, but she was quick to submit that the relevant offences and the provisions of law under which the appellant was charged and convicted were clearly set out in the introductory part of the judgment. She insisted that the judgment, when read as a whole, sufficiently discloses the legal basis of the conviction and substantially complies with the requirements of Section 312(2) of the CPA. She opined that the omission to repeat the relevant statutory provisions at the point of conviction does not occasion any miscarriage of justice as such irregularity is curable under section 411 of the CPA. To bolster her submission, she cited to me the case of Stanley Murithi Mwaura vs the Republic , Criminal Appeal No. 144 of 2019, CAT (Dar es Salaam) at Pages 43-44.

9 In a brief rejoinder, the appellant reiterated his submission in chief and cited the case of Hassan Mwambanga vs. Republic, Criminal Appeal Nao.410 of 2013 (unreported), to substantiate his contention. Now, the pertinent issue for determination before me is whether the trial Magistrate properly convicted and sentenced the appellant. For clarity, I let provisions of Section 331 (2) of the CPA speak for themselves; ‘331 (2) In the case of conviction , the judgment shall specify the offence of which, and the section of the Penal Code or other law under which the accused person is convicted and the punishment to which he is sentenced.’ The above provision of law clearly states in imperative form that a conviction judgment must specify the offence of which, and the Section under which the person is convicted. However, in the instant appeal, it appears that the impugned judgment did not conform to the mandatory requirements of section 331(2) of the CPA. For easy reference, I shall reproduce the respective part of the judgment thereof. ‘After resolving those minor issues then when reflecting the prosecution evidence with regard to the first accused, it is evident that the

10 prosecution side managed to prove both counts to warrant this court to find him guilty just as i so hold and convict him accordingly thereon’ Thereafter, the trial Court proceeded to consider the mitigation and aggravation submissions, and finally imposed the sentence on the appellant as follows: ‘As to sentence, the accused person is subjected to serve 20 years custodial sentence for each count and both sentences shall run concurrently. Right to appeal is availed’. From the above excerpts of the impugned judgment, it is common cause that the trial court judgment did not comply with the law, and, therefore, there was no conviction in law. The judgment did not state the offence of which and the Section under which the appellant was convicted. Faced with a similar issue, the Court of Appeal in the case of Oroondi s/o Juma vs the Republic, Criminal Appeal No. 236 of 2012, CAT at Dar es Salaam, on page 4 held thus: ‘Non -compliance with the requirement to convict the accused as directed under sections 235 (1) and 312 (2) of the CPA

11 rendered the judgment of the trial court incompetent and the High Court was not supposed to dismiss the appellant's appeal as the judgment sought to be appealed against was incompetent.’ See also Jofrey s/o Leiboo vs the Republic , Criminal Appeal No. 24 of 2023, CAT at Arusha and Mohamed Athuman vs the Republic (Criminal Appeal No 135 of 2016) [2017] TZCA 339 (13 July 2017) . Guided by the above authorities, it is my opinion that the requirements under Section 331(2) of the CPA are not mere procedural formality, but rather, they are mandatory safeguards intended to ensure certainty, clarity, and transparency in criminal adjudication. In view of the foregoing, I hold that the impugned judgment of the trial Court is to that extent fatally defective. As such, it could not have founded a competent appeal before this Court. Consequently, I invoke the powers conferred on this Court under the provision of Section 44 (1) (a) of the Magistrate’s Courts Act [Cap. 11 R.E 2023] to quash and set aside the trial court’s judgment and the attending sentence. In the stead, I remit the records to the trial Court for it to compose a fresh judgment in conformity with Sections 252 and 331(2) of the CPA. If the trial Magistrate is not

12 available for one reason or another, in terms of section 230(1) of the CPA, another Magistrate should be assigned the case to compose and deliver the judgment. Meanwhile, the appellant shall remain in custody pending the delivery of the new judgment. Consequently, upon delivery of the fresh judgment, the appellant shall be at liberty to start the appeal process afresh in accordance with the provisions of the law. It is so ordered. Dated at Dar es Salaam on this 5 th June 2026. A.A. Mbagwa JUDGE 05/06/2026