DENIS PENDAEL KIVUYO VS

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA ARUSHA SUB - REGISTRY CRIMINAL APPEAL NO. 16952 OF 2024 (C/F Criminal Case No. 66 of 2023 in the District Court of Arumeru) DENIS PENDAEL KIVUYO................................................ APPELLANT VERSUS THE REPUBLIC............................................................. RESPONDENT JUDGMENT 28th November & 18th December, 2024 KAINDA, J.: The appellant namely, Denis Pendael Kivuyo, and one Genuine Geofrey Masawe, were charged in the District Court of Arumeru with one charge of trafficking in narcotic drugs Contrary to Section 15A (1) and (2) (c) of the Drugs Control and Enforcement Act, Chapter 95 of the Revised Laws, 2019 as amended by Section 19 of the Written Laws (Miscellaneous Amendments), Act No. 9 of 2021. In accordance with the charge sheet, on 6th July, 2023 at Malula-Kibaon, King'ori area within Arumeru District, Arusha Region, they were found trafficking in narcotic drugs namely Catha Edulis 'Khat' commonly known as mirungiweighing 20 Kilogrammes. i After full trial being conducted, the appellant was found guilty as charged, convicted and sentenced to serve a term of thirty (30) years imprisonment. The trial District Court found the case against Genuine Geofrey Masawe not proved she was accordingly acquitted. Aggrieved, the appellant is before this court with an appeal predicated on the following five grounds; one that, the learned trial magistrate erred in law and in fact by failing to see that there was no proper chain of custody of the exhibits and the appellant was not issued with any receipt as required under Section 38 (3) of the Criminal Procedure Act, [Cap 20 R.E 2019]; two that, the learned trial magistrate erred in law and in fact by failing to see in this case there's no credible and reliable independent witness which would allay tears of planning exhibit and evidence against the appellant; three that, the learned trial magistrate erred in law and in fact by convicting the indigent appellant relying upon planted (khat) mirungi and contradictory evidence adduced by the prosecution witness; four that, the learned trial magistrate erred in law and in fact to convict the indigent appellant without considering the evidence adduced by the defence side; five that, the learned trial magistrate erred in law and in fact by failing to be meticulous enough to notice that the prosecution side did not comply 2 with Section 3 (2) (a) of the Evidence Act which is to prove their case to the touch stone as required by the law. Briefly, it was alleged by the prosecution before the trial District Court that, on 6th July, 2023 at about 18.00 hours, PW3, Frank Gerald Msowoya, together with his fellow police, was patrol along Moshi-Arusha highway. In his testimony, he testified that acting on information from their informer, they arrested the appellant who was riding a motor cycle with a bag from Moshi heading to Arusha. They searched the bag and found exhibit P2, which is 42 bundles of fresh leaves suspected to be mirungi. PW3 testified further that, six days later, on 12th July,2023, while under investigation, the appellant asked to bring the police to the owner of exhibit P2. The appellant led the police to a place known as Maji ya Chai where, one Genuine Masawe, was arrested in connection with exhibit P2. Genuine Masawe was also charged and acquitted by the trial court. In his defence, the appellant denied the charge. He told the court that on the material date, while at home, he was arrested by police accused of rape and theft. He denied that he was arrested riding a motorcycle having the narcotic drugs in exhibit P2. He was later on brought at the scene of crime where there was a road accident which involved a bus and a motorcycle. He admitted to have signed some 3 documents while at the scene of crime. The trial court was convinced that the prosecution proved their case to the hilt. Accordingly, the appellant was convicted and hand a sentence of an imprisonment to a term of thirty (30) years. The hearing of the appeal was by written submissions. I thank the parties for timely filling of the respective documents. The issue for determination now is whether the appeal is merited or not. On my deliberation of the appeal, I chose to start with the complaint in the third ground that; the learned trial magistrate erred in law and in fact by convicting the indigent appellant relying upon planted (khat) mirungi and contradictory evidence adduced by the prosecution witness. The appellant submitted that the prosecution evidence is tainted with serious contradictions starting with what was seized at the scene of crime and what was tendered before the court. PW1 testified at page 8 of the proceedings that 24 bundles of suspected to be narcotic drugs was found with the appellant. However, PW2 testified at page 16 that 42 bundles were retrieved from the appellant. On his party, the trial magistrate at page 14 of his typed judgement, he decided the case based on the fact that, the appellant was found with a bag having 432 bundles of the leaves suspected to be narcotic drugs. The appellant further complained that, with regard to prosecution evidence relating to tendered exhibits, it is 4 unknown as to which case they were referring because there were two different case number of same alleged mirungi. PW1 testified at page 8 of the proceedings that all exhibits in relation to the case at hand had a case Number USA-RIVER 12/1735/2023 while on his party, PW3 stated that the case number is USR/IR/1735/2023. In reply, the respondent submitted that, the conviction and sentence of the appellant was procured through the credible evidence of the prosecution witness as the trial magistrate clearly evaluated the evidence adduced by credible prosecution witnesses. The alleged noted contradiction on number of bundles seized should be treated as clerical errors. Moreover, the respondent submitted further that, if the noted clerical errors were contractions as alleged by appellant, the appellant had the chance to cross examine on the same at the trial as the tendered and admitted exhibit P2 was the bag with 42 bundles of khat and cited the case of NELSON S/O ONYANGO VS. Republic, Criminal Appeal No. 49 of 2017 and NYERERE NYAGUE V. Republic, Criminal Appeal No. 67 OF 2010. PW1 is a Police who is among those who dealt with the case. He testified at page 8 of the typed proceedings that on 6th July 2023 while 5 at work station USA River Police Station, apolice officer called in with the appellant. The later handed him exhibits being a motor cycle make Sinoray together with 24 bundles of mirungi. He stated; " Frank came there with an accused whom he introduced to me as Deus Pendaei, he handed to me exhibits including a motor cycle make Sinoray... a bag colour grey with fresh leaves suspected to be narcotic drugs..." During cross examination at page 11, PW1 stated that he was handed 42 bundles. As correctly submitted by the appellant, PW3 testified at page 16 that they searched the appellant and found with him 42 bundles of fresh leaves suspected to be narcotic drugs commonly known as mirungi. With regard to case number, it is correct that while testifying, PW1 testified at page 8 of the proceedings that all exhibits in relation to the case at hand had a case Number USA-RIVER 12/1735/2023 while on his party, PW3 stated that the case number is USR/IR/1735/2023. The issue is whether these contradictions should be treated as minor with no effect as submitted by the respondent. Credibility of a witness can be assessed among other way, by assessment of the coherence of the testimony of that witness or when the testimony of the witness is considered in relation to evidence of the other 6 witness. See Beda Philipo v. Republic, Criminal Appeal No. 114 of 2009 at page 13 which cited with approval the case of Shaban Daudi v. Republic, Criminal Appeal No. 28 of 2000. In this case, PW1 and PW3 was not only coherent in their testimony but also did not tally. It is not the law that every discrepancy in prosecution evidence will make the prosecution case to flop. In the case of Juma Idd Yohana v. Republic, Criminal Appeal No. 48 of 2021, the Court of Appeal held that; "It is not every discrepancy in the prosecution case that will cause the prosecution case to flop. It is only where the gist of the evidence is contradictory then the prosecution case will be dismantled" As per the charge sheet, the particulars of the charge shows that the appellant is blamed for being found with 18 Kilogram of mirungi. However, on the evidence, nothing was said concerning the said 20 Kilogram of mirungi. In conclusion. I find the third ground of appeal with merit. Having decided this ground in affirmative, I find no need to deliberate on the remaining grounds. Consequently, I allow the appeal, quash the conviction and set aside the sentence. I further order the immediate release of the appellant from prison unless he is held for another lawful cause. 7 S. J. KAINDA JUDGE 18.12.2024 Judgement delivered under my hand and seal of this court in Chambers on 18 December, 2024 in the presence of Mr. Mahafudhi Mbagwa, learned State Attorney for the respondent / Republic and the appellant in person. Right of appeal fully explained. S. J. KAINDA JUDGE 18.12.2024 8