Laurensia Lucas @Kulwa @Dunia vs Republic (Criminal Appeal No. 39733 of 2023) [2025] TZHC 8862 (19 December 2025)

1 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MWANZA SUB - REGISTRY) AT MWANZA CRIMINAL APPEAL NO. 39733 OF 2023 (Arising from Criminal Case No. 148 of 2022 in the District Court of Nyamagana at Nyamagana) LAURENSIA LUCAS @KULWA @DUNIA………………………………..APPELLANT VERSUS REPUBLIC…………………………………………………………………RESPONDENT JUDGMENT 20 th June & 19 th December , 2025 KAMANA, J. The appellant, Laurensia Lucas @Kulwa @Dunia, was convicted of stealing by servant under sections 258(1) and 271 of the Penal Code, Cap. 16 [RE.2022]. Following her conviction, she was sentenced to either pay a fine of TZS 500,000 or serve a two - year prison term . She was also ordered to refund TZS 27,565,707 / - to Sia Mrema, her employer. In her memorandum of appeal, the appellant advanced five grounds of appeal. However, during the hearing of the appeal, she abandoned one of the grounds. Upon careful consideration, the remaining four grounds are, in essence, anchored on a single 2 overarching ground , namely, that the prosecution failed to adduce sufficient evidence to sustain the conviction entered by the trial court. During the hearing, the appellant was represented by Mr. John Edward, learned Counsel. The respondent had the services of Mr. Christopher Olembile, learned State Attorney. In his submission, Mr. Edward contended that the prosecution failed to adduce cogent and credible evidence to justify the appellant’s conviction. This position was strongly opposed by Mr. Olembile, who maintained that the evidence on record was sufficient to support the conviction. Being the first appellate Court, I found it necessary to re - evaluate and re - analyse the entire evidence on record, to determine whether the prosecution sufficiently discharged its burden of proof to the standard required in criminal cases . In so doing, I am supported by the position of the Court of Appeal in the case of Maramo Slaa Hofu and Others v. Republic , Criminal Appeal No. 246 of 2011 - CAT (Unreported). In the said case, the apex Court had this to state: ‘ But it is also settled law that the duty of the first appellate such as what we are now, is to reconsider and evaluate 3 the evidence and come to its own conclusions bearing in mind that it never saw the witnesses as they testified .’ Guided by that position, I proceeded to re - examine the testimony of Sia Mrema (PW1), who stated that she had employed the appellant to manage a stationery and money transfer business. Her oral testimony was corroborated by a written employment agreement (Exh. PE2) that was concluded between the two. Upon further scrutiny of the appellant’s defence, I find that the appellant did not dispute the material aspects of PW1’s testimony. In view of the foregoing, I am satisfied that the prosecution proved, beyond a reasonable doubt, that the appellant was indeed employed by PW1 in the capacity alleged. As to the question whether the appellant dishonestly appropriated TZS 27,565,707/ - belonging to PW1 during the course of her employment, the prosecution's case was principally grounded on the testimony of PW1 and the documentary evidence tendered through her. PW1 testified that, following the growth of the money transfer segment of her business, the appellant was entrusted with its supervision. At the time of handing over, PW1 asserted that the business was operating with a capital base of TZS 18,000,000/ - . 4 PW1 further testified that on diverse dates, she injected an additional capital of TZS 32 million into the business by handing the funds directly to the appellant, thereby raising the total capital of the money transfer operations to TZS 50 million. In support of this assertion, PW1 tendered a record book allegedly used by the appellant to acknowledge receipt of the said funds. The book was admitted into evidence as Exhibit PE3. PW1 further testified that she was a member of various social groups through which she extended loans to fellow members. She asserted that a total of TZS 18,842,500/ - was repaid by the borrowers. According to her testimony, part of the refunded amount was handed over to the appellant by PW1 herself, while the remaining portion was paid directly to the appellant by the group members. PW1 stated that the appellant recorded the repayments in a notebook, which was admitted into evidence as Exhibit PE4. PW1 further averred that the appellant stole funds generated as commission payments from various mobile network operators in connection with the money transfer business. In support of this assertion, PW1 tendered a commission record book, which was admitted into evidence and marked as Exhibit PE5. 5 The witness testified that upon making inquiries regarding the missing funds, the appellant admitted that part of the money was unaccounted for. The appellant is said to have attributed the disappearance of the money to chuma ulete . According to PW1, the total amount found to be missing stood at TZS 27,565,707.97 / - . At this juncture, I find it pertinent to observe that the prosecution failed to adduce cogent evidence establishing that the appellant indeed received the alleged sums from PW1. In particular, the authenticity and evidentiary value of Exh.PE3 , purportedly the record on which the appellant acknowledged receipt of TZS 32 million as additional capital , appears highly questionable and insufficient to support the allegation. As correctly submitted by Mr. Edward, the book in question lacks the appellant’s signature, which would signify her receipt of the stated sum from PW1. Legally, the absence of the receiver’s signature on an acknowledgment of money casts serious doubt on its authenticity and probative value. Where it is alleged that one party received money from another, the burden rests on the alleging party to prove that the acknowledgment was properly executed. In the absence of the appellant’s signature, it becomes difficult to conclusively establish that the money was indeed 6 received by her. Consequently, an unsigned acknowledgment cannot suffice as proof of receipt of money. Regarding Exh.PE4, the memory book which PW1 testified was used by the appellant to record the refund of money, I am of the considered view that it does not prove beyond a reasonable doubt that the sum of TZS 18,842,500/ - was received from PW1 and the borrowers. This is primarily because the alleged memory book lacks the appellant’s signature, which would indicate acknowledgment of receipt of the stated amount. As I previously held in relation to Exh.PE3, in the absence of the appellant’s signature, it is difficult to conclusively determine that she received the stated sum. Further, since PW1 testified that the appellant received certain sums from borrowers, I am of the considered view that th o se borrowers were material witnesses whose testimony is crucial to establish that the appellant indeed received money from them as alleged by PW1. It is settled law that where the prosecution fails to call a material witness without justifiable cause, the court is entitled to draw an adverse inference against the prosecution, which I hereby do. Regarding the commission’s book (Exh.PE5), its authenticity is equally questionable, akin to Exh.PE3 and Exh.PE4. The exhibit lacks the 7 appellant’s signature or any acknowledgment indicating that she received commissions from the mobile network operators. It merely records various transactions without any indication of the appellant’s receipt. In an effort to substantiate its case, the prosecution relied on the testimony of Johnson Mwijage, an auditor who testified as PW2. PW2 stated that following an audit of PW1’s business, he identified a deficit totaling TZS 27,565,707.97/ - . To support his findings, PW2 tendered the audit report, which was admitted into evidence as Exhibit PE6. Upon review of Exhibit PE6, I find that the audit report alone does not establish that the appellant received the alleged stolen amount in the course of her employment. This conclusion is drawn from the fact that PW2’s audit relied heavily on Exhibits PE3, PE4 and PE5, which I have previously determined lack sufficient evidentiary value to prove that the appellant actually received the said sums. Another piece of evidence relied upon by the prosecution was the series of transactions alleged to have been conducted by the appellant from PW1’s bank account. This evidence was presented by Nelson Peter (PW3), a banker employed at CRDB Bank. 8 PW3 testified that on 4 th April 2022, a transaction of TZS 9.4 million was made from PW1’s account to an individual named Juma Lukamaja. To substantiate his testimony, PW3 tendered PW1’s bank statement, admitted as Exhibit PE9, and Lukamaja’s bank statement, admitted as Exhibit PE11. PW3 further testified that on 14 th April 2022, a transaction of TZS 5 million was made from PW1’s account to the account of Yutha Oscar. To support this evidence, PW3 tendered Yutha Oscar’s bank statement, which was admitted as Exhibit PE10. This evidence was corroborated by the testimonies of Evodius Oscar and Yutha Oscar, who appeared as PW4 and PW5, respectively. During cross - examination, the witness testified that the account in question belonged to PW1 and was operated using a machine secured by a password. He further stated that the machine was to be operated by PW1, the appellant and Consolatha (PW6), as all three held the password. In this regard, I am of the considered view that where a password is jointly managed by more than one person , the prosecution bears the burden of proving that the accused specifically used the said password to execute the impugned transactions. Mere access or joint control is 9 insufficient to attribute the transactions to the accused. It requires clear and direct evidence such as digital logs, audit trails or credible witness testimony , establishing that the accused personally used the password to conduct the transactions in question. In the absence of such proof, criminal liability cannot be conclusively imposed on the accused. I find it difficult to conclusively determine that the transaction of TZS 9.4 million was made by the appellant and not any other person with the password . This is because, according to PW3, the machine used to execute the transaction was accessible not only to the appellant but also to PW1 and PW6. To attribute the transaction solely to the appellant would be speculative, a conclusion that this Court is not prepared to make. While the evidence adduced by PW3, PW4 and PW5 establishes that the appellant made the transaction of TZS 5 million, it does not, in my view, sufficiently prove that the sum of TZS 4 million withdrawn in cash by the appellant was stolen by virtue of her employment. The prosecution has not demonstrated, beyond a reasonable doubt, that the appellant misappropriated this amount in her capacity as an employee. Having considered the foregoing, I find that the prosecution has failed to prove its case beyond a reasonable doubt. Consequently, I 10 allow the appeal. The appellant’s conviction and sentence are hereby quashed and set aside. Furthermore, the order directing the appellant to refund the alleged stolen amount is also quashed and set aside. It is so ordered. Right of Appeal Explained. DATED at MWANZA this 19 th day of D ecember , 2025. KS KAMANA JUDGE