Bahati Bifakwaya @ Kaganda vs Republic (Economic Appeal No. 4352 of 2025) [2026] TZHC 3106 (2 June 2026)

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA SUB-REGISTRY AT BUKOBA ECONOMIC APPEAL NO. 4352 OF 2025 (Arising from Economic Case No. 7673 of 2025 District Court of Biharamulo, L. G. Mwambeleko, SRM) BAHATI BIFAKWAYA @ KAGANDA .............................. APPELLANT VERSUS REPUBLIC RESPONDENT JUDGMENT 13 th May & 2 nd June, 2026 KIWONDE, J: The appellant, Bahati Bifakwaya @ Kaganda was arraigned before the trial court facing a single count namely unlawful possession of firearm contrary to section 20(l)(b)(2) of the Firearms and Ammunitions Control Act, No. 2 of 2015 read together with paragraph 31 of the first schedule to and sections 57(1) and 60(2) of the Economic and Organized Crimes Control Act, Cap 200 (R.E 2022). It was averred by the prosecution that the appellant, on 15 th March, 2025 at Milima ya Chizi area in Burigi-Chato National Park within i

Biharamulo District in Kagera Region, was found in unlawful possession of a firearm to wit; one muzzle loading gun commonly known as gobore without permit from the authorized officer. The appellant denied to have perpetrated the offence. However, upon a full trial, he was found guilty, convicted and sentenced to serve 20 years jail imprisonment. Being dissatisfied with the said decision, the appellant filed the present appeal in which he raised eight (8) grounds of appeal as follows:

1. That the trial court erred both in law and fact to convict and sentence the appellant while the prosecution case/charge was not proved beyond reasonable doubt.
2. That the trial court erred both in law and fact by convicting and sentencing the appellant while the procedure of tendering exhibit P2 was flawed.
3. That the trial court erred both in law and fact by convicting and sentencing the appellant while the chain of custody was broken.
4. That the trial court erred both in law and fact by convicting and sentencing the appellant while the prosecution evidence was 2

tainted with uncertainties, inconsistencies, contradictions and uncorroborated. 5) That the trial court magistrate erred in law and fact to admit exhibit Pl, a certificate of seizure which lacked (sic) independent witness. 6) That the trial court erred both in law and fact to convict and sentence the appellant relying on the GPS coordinates which were not identified and read out before the court as to their legality and correctness about the appellant. 7) That the trial court erred both in matters of law and fact for convicting and sentencing the appellant while investigation and proceedings are tainted with illegalities and procedural impropriety for the appellant overstayed in custody over 14 days without being arraigned to court. 8) That the trial court erred in law and fact by convicting and sentencing the appellant while the defence evidence was not evaluated and considered. The appellant prayed this court to allow the appeal, set aside the conviction, sentence and set him at liberty. 3

When the appeal was called for hearing, the appellant was unrepresented, while, the respondent Republic was represented by Mr. Denis Nguvu assisted by Ms. Deocadia Jones, learned State Attorneys. The appellant asked this court to adopt his grounds of appeal in //et/of his oral submissions for he is illiterate. In reply, the learned State Attorney said the respondent opposed the appeal, supported conviction and sentence. Also, he argued the first ground of appeal that the prosecution case was not proved beyond reasonable doubts and his submissions covered other grounds as sub points. The learned State Attorney argued that in an offence of unlawful possession of firearm, the elements to be proved are three, one, that the existence of the weapon (firearm), two, that the appellant possessed the firearm, three, if he had no permit, license or authority to possess it. He submitted that at the trial, PW6, a ballistics officer, explained that exhibit P2, a gobore, he examined was properly functioning and it was a firearm, he tendered exhibit P6, the examination ballistic report. Also, PW1 and PW2 testified how they seized it from the appellant, PW3 GPS expert, explained how the GPS coordinates helped him know where the appellant was arrested and 4

prepared the sketch map which was tendered and admitted as exhibit P3. He argued that for that matter, it was proved that there was a weapon or firearm. Besides that, he said PW1, PW2 and PW3 stated how they found the appellant in the National Park, they seized the firearm for there were no dwellers in the National park, the appellant signed the certificate of seizure, it was handed over to PW4 the custodian of exhibits, and exhibit P4 is the chain of custody which was not broken in between. So, the firearm was found in possession of the appellant. Apart from that, he argued that the appellant had no any permit which allowed to possess the firearm. Therefore, it was unlawful possession. He referred to the case of Emmanuel Lyabonga Versus Republic (Criminal Appeal No. 257 of 2019) [2021] TZCA 152 (29/04/2021) TanzLII in which it was held that possession implies knowledge of the existence of the weapon and control over it. Concerning exhibit P2, he said it was lawfully admitted. He argued that it was a physical object, different from the documentary exhibits, it could not be read out and the witness laid foundation, identified it and the appellant was availed opportunity to object, his objection was overruled. 5

On the complaint that PW4 did not explain how he got the exhibit and tender in court, the learned State Attorney said this is baseless because all other witnesses showed how the exhibit moved from one person to another. It was under the police custody (PW4) until when it was produced in court. PW1 identified by the marks seen at the seizure. The chain of custody was not broken. Responding to the allegation that prosecution evidence was uncertain, inconsistent, contradictory and not corroborated, he submitted that in law, not every contradiction goes to the root of the case. The prosecution witnesses said they saw the appellant carrying something on his shoulders to the back. So, it was minor contradiction which does not go to the root of the case. Furthermore, he argued that exhibit Pl, a certificate of seizure, was legally admitted because it is not mandatory to have independent witness as in the Burigi-Chato National Park there was no villager. Apart from that, it was said that the court misdirected itself to rely on the GPS coordinates which were not identified and read in court. The GPS coordinates are not part of the elements of the offence of unlawful possession of fire arm. PW3 clearly explained about the GPS coordinates how they helped him draw the sketch map. So, this argument is vague. 6

The argument that the appellant stayed at the police station for 14 days without being arraigned in court, he said this is vague argument. The case could be filed after completing investigation. PW5 explained how the exhibit had to be sent to Dar-es Salaam for ballistic examination as part of investigation. The prosecution did not use any cautioned statements of the appellant. So, the delay does not vitiate the proceedings. Finally, he said in the judgment, the trial magistrate considered defence evidence and found not shaking prosecution evidence. The court said it was hearsay defence evidence from the appellant's wife. He prayed the entire appeal be dismissed for want of merit. In rejoinder submissions, the appellant merely submitted that he was locked up at police station, then sent home for search. From the lower court records, the grounds of appeal and the oral submissions of the State Attorney, the issue for determination is whether this appeal has merit or otherwise. It is settled law that in criminal cases, the prosecution has a duty to prove the case beyond all reasonable doubts. In this appeal, the prosecution evidence tried to show that the appellant was found and 7

arrested in Burigi-Chato National Park in unlawful possession of a firearm called muzzle loading gun (gobore) for he had no permit. However, the prosecution evidence is doubtful. For instance, the arresting officers, PW1 one Peter Andrea testified that the appellant was found with muzzle loader gun with a yellow hand, black with a metal decoration, but PW2, Basilidi Songay said he saw the firearm with yellow and red colour on its handle, a black strip bag and metal decoration. It was not stated why the two saw different colours of the said firearm. This casts doubt if what the witnesses testified was true. Also, in defence, the appellant said he was arrested at home on 13 th March, 2025 at 23:00 hours and he was sent to Burigi-Chato National Park where he stayed up to 16 th March, 2025 when he was sent to police station. He said on 19 th March, 2025, the police officers searched in his house in the presence of his relatives, Devaston Bifakwaya (DW2) and Pastory Bifakwaya (DW3) where they seized wire cage and 32 fish hooks and they signed certificate of seizure. This piece of defence evidence was corroborated by DW2 and DW3. But the prosecution evidence did not state where are those seized properties and how the search conducted on 19 th March, 2025 was linked to the appellant's offence, rather, the park rangers completely denied to have searched in the 8

appellant's house. This also casts doubts if the prosecution witnesses testified the whole truth. The appellant's defence witnesses said when they were informed by the appellant's wife that the appellant was taken away on 13 th March, 2025, they made follow-up to the police station where they denied to have received him thereat but they kept going there on 14 th ' 15 th and 16 th March, 2025. So, this shows that their relative was missing from 13 th March, 2025. Therefore, this shows that he was taken from his home and sent to the national park and implicated to have been found in unlawful possession of the said firearm. In the trial court's judgment, the magistrate shifted burden of proof to the appellant by saying he failed to bring his wife to prove that he was arrested at home on 13 th March, 2025. This is unlawful because the burden of proof does not shift to the accused person. In Emmanuel Magesa Chacha and another Versus Republic (Criminal Appeal No. 538 of 2020) [2024] TZCA 116 (2 nd May 2024) TanzLII, it was said that the accused person has no duty to prove his innocence, but to just raise some doubts. Part of the holding is quoted below: "It is a cardinal principle that unless otherwise stated, the accused person has no duty to prove his innocence 9

at most, he can raise doubts by poking holes in the prosecution case. Equally elementary is that the burden of proof is beyond reasonable doubt and the burden never shifts except where legally stated and also, conviction should in no way be based on the weakness of the accused's case. " So, it was improper for the magistrate to shift the burden to the appellant of protesting his innocence. The other prosecution witnesses, like PW4 PW5, PW6 and PW7 were merely told that the appellant was found in the national park and in unlawful possession of the firearm. Also, PW3 depended on the story and coordinates filled in the GPS by PW2, but he was not an eye witness that the appellant was actually found in the national park. For the foregoing observations, it is apparent that the prosecution case was not proved beyond reasonable doubts. The first ground of appeal has merit and it is hereby allowed. Since it is sufficient to dispose of the entire appeal, there is no compelling reason to determine the rest of the grounds of appeal. 10

To that end, the appeal is allowed. The decision of the trial court is quashed, conviction and sentence inflicted on the appellant are set aside and the appellant be immediately released from custody unless he is held for other lawful cause. Dated at Bukoba this 2 nd June, 2026. F. H. Ki won de Judge 02/06/2026 Court: Judgment is delivered in open court in the presence of the appellant, Mr. Dennis Nguvu State Attorney for the respondent Republic and Suzana Tungaraza (RMA) this 2 nd June, 2026 and the right of further appeal is explained. 1 r !(■ F. H. wonde I Judge 02/06/2026 11

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