IN THE UNITED REPUBLIC OF TANZANIA

THE HIGH COURT OF TANZANIA

(DAR ES SALAAM DISTRICT REGISTRY)

AT PAR ES SALAAM

CRIMINAL APPEAL No. 14 OF 2021

(Originating from District Court of Kiiosa at KHosa in

Criminal Case No. 73 of202(f)

DIRECTOR OF PUBLIC PROSECUTIONS......... APPELLANT

Versus
FRANK JOSEPH KHENAN............................... RESPONDENT

JUDGMENT
17" March, - 17" May, 2021

J. A. DE-MELLO J;

Offence of corrupt transactions contrary to section 15 (1) (a),

and, (2) of the Prevention and Combating Corruption Act
Cap. 329 R.E 2019, was levied against the Respondent in

Criminal Case No. 73 of 2020, finding himself acquitted.

Aggrieved, the Appellant has lodged this Appeal on the following

grounds;
l. That, the learned trial Magistrate misdirected

herself in law and facts by holding that the

prosecution evidence did not prove the case

beyond reasonable doubt. "'X

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 2. That, the learned trial Magistrate erred in law

and fact in holding that, the respondent did not

have ill motive when obtaining money sent by

PW1.

3. That, the learned trial Magistrate erred in law

and fact in not according weight to exhibit "P6"

which was admitted without objection.

4. That, the learned trial Magistrate erred in law

and fact in not according any weight to exhibits

Pl, P2, P3, P4 and P5 without assigning any

reasons

5. That, the learned trial Magistrate failed to

properly evaluate the prosecution's evidence

and hence arrived at wrong conclusion.

The gist of this Appeal, has its background from Mikumi within
Kilosa District in Morogoro, whereby the Respondent being

an employee by the Judiciary of Tanzania as a Resident

Magistrate, was accused of illegally soliciting and, obtaining
money to the tune of TShs. 100,000/= through his mobile
phone no. 0755 103 464 for himself, from one Dr. Esily John
Mwankenja, as an inducement to decide in his favour. Following
Trial, the Respondent was acquitted and, hence this Appeal.
Lillian Itemba, learned State Counsel fended the Republic for

the said Appeal whereas; Mkilya Daudi, Iqarncd Advocate,

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represented the Respondent. The Appeal was argued orally,
upon which Counsel Itemba commenced her submissions by
condensing the , 1st and, 2nd ground, while dropping the 3rd
ground where3by, the 4th and, 5th, independently. It was her
submissions that, despite what the proceedings reflected in page
11 that, PW1, Dr. Mwankenja testified to have been
summoned by the Magistrate allegedly to inform him that, one
Leticia the wife of the late Geoffrey lyumbe and, a former
employee of PW1, was appointed as administratrix to, one to
collect money owed by him. PW1, it was further alleged,
requested two weeks to be able to furnish evidence showing that
nothing is owing and, pending against him. However, on the 26th
November, 2019, PW1 went to the Court in the company of

his Secretary PW2, registering that, the only pending debt was
the deceased's one-month salary amounting to TShs.

1,200,000/= as shown in page 12 of the proceedings. As this

was registered, it was further alleged that the said Magistrate

ordered that secretary and his clerk to exit, remaining with PW1
alone. What followed between the two, was for the Respondent
to inform PW1 about contempt case for avoiding appearance for
long, as he demanded TShs. 400,000/= to do away with
charge. PW1 found himself arrested but, bailed by PW2.
On 22nd January, 2020, PW1 reported the matter to PCCB
and, was given TSh. 100,000/= as a 'trap uwney' which was

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sent via mobile number 0759 136 060 in the name of the
respondent, Frank Khenan. Exhibit P4, the print out for the
said transaction was tendered and, admitted which sufficed for
proof, Counsel emphasized. The Respondent did not dispute to
have received the said money, as evidenced on his reply on the
lZ^ February, 2020, from a text message reading "OK". On the
20th February, 2020, the PCCB Officer interrogated the
Respondent which lead returning of the cash to PW1, on 24th
February, 2020. With regard to the second ground, Counsel

Itemba expounded on the Principal element which the

Respondent had with the Judiciary, as his employer as defined
by section 3 of the Act (supra) to mean, the employer or
authority and, to such environment the Respondent was the

employee of the judiciary whose allegiance is solely with

judiciary, as it was held in the case of DPP vs. Peter Kibatala,
Criminal Appeal No. 4 of 2015, page 11 paragraph 2.

Conceding to this fact, no regards was given to exhibit and,

without reasons, admitted, namely exhibit P3, summons to PW1,
P4 M-Pesa statement, P5 proceedings for contempt case, all
cogent to convict the Respondent, but, not Notwithstanding
confusion on section 15 (1) of the Act supra, between soliciting
and obtaining, the Trial Magistrate failed to evaluate evidence,
much as both were duly proven, beyond reasonable doubt
praying for the appeal to sail throughS^*

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Responding to the submissions above, it is in that same
sequence that, Counsel Mkilya, stated that, nothing was
wrong with the Trial in arriving to the findings, considering
proper analysis and, evaluation of evidence adduced, hence
satisfied to have been proven beyond reasonable doubt. The
Court took judicial note of Probate cause No. 4 of 2018 and,
Criminal Case No. 275 of 2019 both of which had the wife of

the deceased, employee of PW1, as a Petitioner and Plaintiff.

However, this Leticia the wife of the deceased and, the
administrator was never summoned to appear in the District
Court, much as she is the one who allegedly lodged the contempt
case, following non appearance of PW1. This rendered the case
not proved by standards set. On 26th November, 2019, PW1
appeared and, promised to submit proof that nothing is owed to
him but, disappeared and, in turn sent his secretary PW2 to
submit to Court, TShs. 1,200,000/= contrary to the order of
the Court for submission of documents for proof of TShs.
7,000,000/=, as claimed by Leticia. That, it was that, non

appearance and, default which lead to the arrest on 20th

January, 2020, which PW1 admits this through Police

Central Morogoro, and, well captured in the proceedings.

Summons were for appearance on 24th January, 2020,

testifying to appear in person on 22nd January, 2020, and
reported to have been solicited to partwith TShs. 400,000/ =

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on 26th November, 2019, showing that, the alleged corrupt
soliciting was reported after the summons were issued as seen
on page 7 of the judgment. The allegations in as far as exhibits
Pl and, P4 for the deposit of TShs. 100,000/= and, without

proof are fabrication and speculative, unless and until when

proof for trap money is furnished. Exhibit P4 misses the alleged
communication for soliciting with a view of obtaining money,
rendering the response of the Respondent "OK" if at all, in
absence of the messages for soliciting, becomes a mere
speculation. Similarly, is the alleged vacation of PW2 from the
Respondent's office in absence of collaboration, becomes
hearsay, as shown in page 36 of the proceedings that, the
Respondent did heed to all, not even proof for receipt of TShs.
1.2 million as alleged by PW2 who never reported where she

submitted the cash. Strangely, PW6 the investigator, failed to

interrogated the wife who instituted both Probate and Criminal
Case, amidst PW2 testimony to have reported to PCCB office
on 15th January, 2020, as opposed to 22nd January, 2020.
On grounds 4 and, 5, on the allegation that, the exhibits were
not considered, Counsel observes to be an afterthought and,
with no legs to stand, considering the fact that, the Trial
Magistrate captured them all namely; 'trap money, seizure form,
print out form' which were established not cogent to assist the
Magistrate in arriving to a decision in favour of the Appellant.

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The judgment, he emphasize, has all what it takes for having
incorporated all the prerequisite requirements. Rejoining State
Counsel, reiterates her earlier stance adding that, record is
binding and, speaks louds of itself. Whether or not Leticia was
summoned, is immaterial based on the fact that, what was
instituted was the criminal case for solicitation and, obtaining
money by the Respondent and, nothing with regard to Probate
matter. PW1 the employer for her late husband was competent,
trustworthy, hence credible.
This is a first Appeal and, which opens room for scrutiny without
limitations. This said, I will commence by narrating the
chronological of events which reveals that, on the 26th
November, 2019, PW1 appeared in the Primary Court, the
day alleged that soliciting was made. On 24th December,
2019 arrest warrant was issued for PW1 as seen in the

proceedings of 24th December, 2019 vide Criminal case No.

275 of 2019 which was tendered and, marked as exhibit P5.

On the 10th January, 2020 PW1 admits to have received been

given summons to appear before the Trial Court, but absconded
as seen in page 13 of the District Court proceedings, when the
matter came on 20th January, 2020, following order issued on
29th December, 2019. Yet still and, in his absence, the matter

was scheduled for hearing on 24th January, 2020 (see the

proceedings of 20th January, 2020 vide^tninal case No. 275 of

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2019 labeled as exhibit P5). It was then alleged that, on the
22nd January, 2020 PW1 reported the matter to
"TAKUKURU" (PCCB) in as far as record from page 13 of the

District Court Proceedings) suggesting it to be the same day that,

cash money was given and, sent to the Respondent's mobile
number 0755103464 through 0759136060, acknowledged by a
text message "OK" (see page 13 of the District Court
Proceedings). That, the said money was then reverted back to
PW1, on 24th February, 2020 (see page 13 of the District
Court Proceedings).
What one gathers from all the above, is communication solely
between the Magistrate, the Respondent herein and, PW1 the
victim. This is evidenced from solicited TShs. 400,000/= as
shown in page 27 of the District Court proceedings, trap money
and, filled the form, sent to respondent mobile number
0755103464 through 0759136060, exhibit Pl headed "FOMU
YA FEDHA ZA MTEGO". This brings, us to a conclusion that,

the entire case is based purely on circumstantial evidence, facts

which are associated or connected with facts in issue, such that,
they form chain of events either proving or disproving the fact in
issue as stipulated under section 7 and 18 of the Evidence
Act, Cap. 6, R.E 2019. Sir Udo Udoma C.J in R vs. Sadrum

Merali, Uganda High Court, Cr. A. Xo. 220 of 1963 held

that;

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"...it has been said that circumstantial evidence is very

often the best evidence. It is the best of surrounding

circumstances which by undersigned coincidence is

capable of proving a proposition with accuracy

mathematics".

Independently and, cumulatively, the whole case is built on

hearsay and, partly documentary evidence. This is evidenced
from PW2's testimony as to how she exited from the Magistrate
room with the clerk, it being purely hearsay not corroborated
even by this clerk. One would expect what that text was all about
for the Respondent to text "OK". What the conversation was,
responding to message for the Respondent to respond 'OK' as
alleged? Moreover and, from what the caution statement
admitted as exhibit P6 without confession therein if any, as
required by law. Looking at exhibit Pl (trap money form) and,
not signed by a witnesses as required, renders it defective hence
fatal but, worse even, considering it was after arrest order that
the matter was reported on 22nd January, 2020, long after the
alleged solicitation on the 26th November, 2019. This raises
eyebrows as to why this long delay.
The Prosecution carries that burden for proof as drawn from
section 110 (1) of the Law of Evidence supra) states that;

"Whoever desires any court to g^jydgment as to any

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legal right or liability dependent on the existence of facts

which he asserts must prove that those facts exist".

In criminal cases and, by the virtue of section 3 (2) (a) of the

Evidence Act, Cap. 6 R.E 2002 a fact is said to be proved

when; "in criminal matters, except where any statute or

other law provides otherwise, the court is satisfied by

the prosecution beyond reasonable doubt that the fact

exists".

So long as doubt is shed however little, the standard of proof in

criminal matters that, of beyond reasonable doubt has not been
achieved. In such circumstantial evidence, all doubts must be
eliminated to the satisfaction of the Court that the facts stated
real exist. This has been discussed in various and, several cases
like this one of Said Hemed vs. Republic (1987) TLR, 117
CAT. I find no need to entertain other grounds of appeal as it is

vivid that, the case was not proved beyond reasonable doubt in
that instant alone. This Appeal lacks merits and, hereby

dismissed.
It is so ordered. I

JUDGE

17th May, 2021

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