THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA

DC. CRIMINAL APPEAL NO. 000017262 OF 2025

MASANJA S/O NUNGULA @MANAMBA .............................. COMPLAINANT / APPELLANT /

APPLICANT

VERSUS

REPUBLIC .............................. RESPONDENT / DEFENDANT

JUDGMENT

NKWABI, J

28 & 28/08/2025

The appellant was arraigned before the District Court of Uvinza. There,

he was charged with four counts: One, stealing contrary to section 258 (1) and

265 of the Penal Code [CAP 16 R. E. 2022]. Two, malicious damage to

properties contrary to section 326 (1) of the Penal Code. Three, unlawful

possession of firearms contrary to section 20 (1) (a) (b) of the Firearms and

Ammunition Control Act No. 2/2015 read together with paragraph 31 of the 1st

schedule to and section 57 (1) and 60 (2) of Economic and Organized Crimes

Control Act [CAP 200 R. E. 2022]. Four, unlawful possession of ammunition

contrary to section 21 (a) (b) of the Firearms and Ammunition Control Act No.

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 2/2015, read together with paragraph 31 of the 1st schedule to and section 57

(1) and 60 (2) of Economic and Organized Crimes Control Act.

The case was heard and the trial court convicted the appellant as

charged upon finding that the case has been proved beyond reasonable. The

appellant was piqued with that judgment. He is before this appellate Court

advancing the following grounds:

1. That, the District Court erred in law and fact by convicting the appellant

while the offence charged was not proved to the standards required to wit

beyond reasonable doubts.

2. That, learned trial magistrate erred in law and fact by convicting and

sentencing the appellant basing on the defective charge sheet which did not

disclose ingredients of the charge offences as by the law enjoined.

3. That, the Hon. learned trial magistrate erred in law and facts convicting and

sentencing the appellant relying on evidence that was contrary to the charge.

4. That, the trial magistrate erred in law and a fact by admitting prosecutions

exhibits which was illegally procured.

5. That, the Learned trial magistrate grossly erred in law and facts by

convicting and sentencing the appellant without considering that there were

procedural irregularities about search and seizure where by appellant was not

given an opportunity to search first the policeman before allowing entering in

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 his house.

6. That, the Hon. learned trial magistrate erred in law and facts by convicting

and sentencing the appellant while the judgement was erroneously reasoned

as it did not consider the law.

7. That, the Hon. learned trial magistrates grossly erred in law facts by

convicting and sentencing the appellant to serve punishment of 7 years in

prison for the offence of stealing properties of FELISA COMPANY on the

alleged date of 11 October 2021 while the identification of the appellant

committing such stealing was not proved beyond reasonable doubt by the

prosecution’s evidence, there was neither alleged properties being stolen at

the scene tendered before the court nor the watchman who was together with

the key witness of this case was not called before the court by the prosecution

side to testify how the incident took place.

8. That, the Hon. learned trial magistrate erred in law and facts by convicting

and sentencing the appellant for the 4th count of found in possession of

ammunition (exhibit P3) regardless of procedural irregularities of conducting

the search and seizure the alleged exhibit in the second wife’s house of the

appellant without search warrant and seizure certificate filed and signed at the

crime scene.

9. That, the hon. trial magistrate erred in law and facts after convicting and

sentencing the appellant under procedural illegality, whereby the appellant was

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 not arraigned before the court on time as required by the law, referring to the

case of SHIJA NGASSA V, R CR/Appeal No 173/2022 Court of Appeal of

Tanzania at Kigoma (Tanzlii) it was held that the appellant be set free having

not arraigned before the court on time as provided by the law.

In connection to his grounds of appeal, the appellant prays this Court to allow

the appeal, his convictions and sentences be set aside and that he should be

released from prison.

When the hearing of the appeal was due, the appellant appeared

unrepresented while the respondent was presented by Ms. Flora Lucas,

learned State Attorney.

The appellant, opened up the submissions, he submitted that, he

preferred this appeal on nine grounds. He urged all his ground be allowed.

On part of respondent, Ms. Lucas informed this Court that the

respondent does not oppose the appeal. She explained her stand view that all

the counts were not proved beyond reasonable doubt. She added that, On the

offence of stealing, the appellant was convicted basing on the testimony of

PW.9 who said he and his colleagues ran and when they came back, they

thought the appellant was one of the bandits. She further expounded that,

PW.9 did not see the convict steal and thus, suspicion however, grave cannot

be used to convict an accused person. On the point, she referred to the case

of Mohamed Said Matula v. Republic [1995] T.L.R. 5.

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 Addressing the offence of being found in possession of firearm and

ammunitions, Ms. Lucas asserted that the same were not proved beyond

reasonable doubt on the basis that custody of the exhibits was compromised.

She elaborated that, there was break of chain of custody from when it was sent

to the Government Ballistic expert. She fortified her view with the decision in

Gasper Mahwele & Another v. Republic (Criminal Appeal No. 622 of 2023)

[2025] TZCA 408 (16 May 2025) TanzLII. She added that, on 13/03/2023 and

11/04/2023 PW.5 said that PW.1 went to him to take the exhibits to send to

court, and returned the same to PW.5. But PW.1 did not tell the court about

taking the firearm and the rounds of ammunition. On that point Ms. Lucas was

of the view that, the silence on that area breaks the chain of custody as per the

testimonies of all prosecution witnesses. Moreover, she submitted that, PW.6

told the trial court that, ammunitions were incompatible with the firearm as they

were large. Thus, brings doubt to the evidence of the respondent on the basis

that, what was seized from the appellant might have not been tendered in

court. Lastly, she stresses that the case against the appellant was not proved

and beseeched this Court the appeal be allowed.

In rejoinder submission, the appellant reiterated that his appeal be

allowed as he stayed in police custody for 75 days without justification.

I have carefully reviewed the trial court proceedings, the submissions of

both parties, and the petition of appeal. I agree with Ms. Lucas, that the case

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 was not proved to the required standard as the chain of custody was broken

from when it was sent to the Government Ballistic expert. The law is very clear

on this, that a criminal case must be proved beyond any reasonable doubt, and

where any doubt arises, it must benefit the accused person. Further, the law is

also settled that the duty to prove a case is on prosecution. The authority for

that position of the law is Syridion Michael v. Republic (Criminal Appeal No.

262 of 2022) [2024] TZCA 365 (15 May 2024) (TANZLII), where the Court

stated that:

“Settled, are the principles that reasonable doubts in the prosecution case

should be resolved to the benefit of an accused person and also that it is the

duty of the prosecution to prove the case against the accused beyond

reasonable doubt. The importance for the prosecution to prove the case

against an accused person beyond reasonable doubts cannot be

overemphasized.”

See also Julius Patson Mwampashi v. Republic (Criminal Appeal No. 537 of

2021) [2024] TZCA 1175 (3 December 2024) TanzLII and Kenedy Elias

Shayo and Another vs Republic (Criminal Appeal No. 84 of 2017) [2019]

TZCA 606 (12 December 2019) TanzLII.

Since in the present case there is no dispute that the parties agree the chain of

custody was compromised, it follows that the trial court erred in convicting the

appellant in circumstances where he ought to have been accorded the benefit

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 of the doubt to the appellant.

Another frailty in the respondent’s case raised by Ms. Lucas was that,

mere suspicion cannot form a ground for conviction because no witness saw

the appellant commit theft. On this point as well, I am inclined to accept the

stand view of Ms. Lucas. The offence of stealing was not proved owing to the

truth that there was a mere suspicious. For the offence of stealing to be

proved, the Court in the case Director of Public Prosecutions v. Shishir

Shya Msingh (Criminal Appeal 141 of 2021) [2022] TZCA 357 (16 June 2022)

TanzLII stated that:

“It is settled law that for the offence of stealing to be established, the

prosecution should prove that; one, there was movable property ; two, the

movable property under discussion is in possession of a person other than the

accused; three, there was an intention to move and take that movable

property; four, the accused moved and took out the possession of the

possessor; five, the accused did it dishonestly to himself or wrongful gain 'to

himself or wrongful loss to another; and six, the property “was moved-and took

but without ;the consent from the possessor.”

The above stated position was not met, hence as I said earlier, the conviction

was unjust. Consequently, the appeal is allowed. Convictions are quashed

while the sentences imposed against the appellant are set aside. He be

immediately released from prison unless held for other lawful causes.

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 Dated at KIGOMA this 27th of August 2025 .

J. NKWABI

JUDGE OF THE HIGH COURT

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