Elphace Omondi Odumbe v

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA

AT BABATI CRIMINAL APPEAL NO. 24161 OF 2024 (Originating from Criminal Case No. 172 of 2023 in the District Court of Babati at Babati) ELPHACE OMONDI alias ODUMBE………..………..............................APPELLANT

VERSUS THE REPUBLIC.............................................................................RESPONDENT

JUDGMENT 9th October 2024 and 26th November 2024 MIRINDO, J.: At the police road block in Minjingu area, Babati District within Manyara Region, a group of police officers on 7 November 2023 stopped a passenger vehicle, make Toyota Coaster with registration number T818 DNQ. The vehicle was travelling from Arusha to Babati. After the vehicle had stopped three police officers went in and stated their usual inspection. At a passenger seat number 19, a police officer, Assistant Inspector Hassan Shaban Karatha noticed a male passenger looking uncomfortable and sensed a weird smell coming out of a small maroon bag that the passenger was holding on his lap. Assistant Inspector Karatha suspected the smell to be that of a narcotic drug. He ordered the passenger to alight from the vehicle together with his maroon 1 bag. On getting outside, the bag was opened in the presence of two other police officers, namely, Sergeant Dickson and J.4045 Police Constable Dituro, and Nkaiti Ward Executive Officer, Frank Salala, who was a passer-by. Inside the bag they found eighteen bundles of a narcotic drug of what they suspected to be “Mirungi.” Suspecting the passenger to be carrying something on his body, Assistant Inspector Karatha took him to a special room near the police road block and searched him in the presence of Frank Peter Salala, Omary Kingiwe, Sergeant Dickson and Police Constable Dituro.

He found on him a shape wear for tummy that carried twelves bundles of fresh “Mirungi” leaves wrapped in a magazine. A total of thirty bundles of the leaves seized from the male passenger were sent to the Government Chemist Laboratory Agency branch in Arusha and it was confirmed that they were bundles of narcotic drugs with a botanical name “khat” (Catha edulis) locally known as “Mirungi”. The passenger was identified as Elphace Omondi alias Odumbe. He was subsequently charged before Babati District Court with trafficking in a narcotic drug contrary to section 15A (1) and (2) (c) of the Drugs Control and Enforcement Act [Cap. 95 R.E. 2019] as amended by section 19 of the Written Laws (Miscellaneous Amendments) (No.

5) Act of 2021. He was convicted and sentenced to the mandatory minimum sentence of thirty years. Before the High Court at Babati, the appellant, Elphace Omondi has filed six grounds of appeal against his conviction and sentence. He appeared in person at the hearing of the appeal. The respondent Republic was represented by Mr. Raphael Rwezahula, Ms Mwanaidi Chuma and Mr. Jackson Mayeka, learned State Attorneys. 2 I will first deal with the fourth ground of appeal, a loaded one, that essentially challenges the appellant’s conviction being premised on unproved charge on account on account of variation between charge and evidence. This ground of appeal specifically laments that the prosecution evidence clearly proves possession but the charge was one on trafficking. If I correctly understood the appellant’s contention, his complaint is that “possession” is different from “trafficking.” Ms. Chuma argued that there was no contradictory evidence and if there was any it was curable under section 388 of the Criminal Procedure Act [Cap. R.E. 2022]. She noted that section 2 of the Drugs Control and Enforcement Act defines trafficking and the appellant was charged under a correct provision of law. The appellant did not specifically address this point. In ordinary English the word “trafficking” is confined to illegal buying and selling of goods. The statutory definition of the word

“trafficking” is different from its general meaning. Section 2 of the Drugs Control and Enforcement Act provides an expanded definition of “trafficking” in narcotic drugs to include the following activities: importation, exportation, buying, sale, giving, supplying, storing, possession, production, manufacturing, conveyance, delivery or distribution. The charge was therefore proper. Was the charge proved beyond reasonable doubt? In his sixth ground of appeal Elphace complains that the charge was not proved beyond reasonable doubt. Part of the complaint that the charge was not proved beyond reasonable doubt is contained in the first, second and third grounds of appeal. 3 There are ample eye-witness accounts of the appellant being found in possession with bundles of Mirungi leaves at Mijingu police road block. There is the testimony of the fifth prosecution witness, Assistant Inspector Karatha who first suspected him to be carrying narcotic drugs in a bag inside a passenger vehicle. He inspected the appellant in the presence of other two police officers and a Ward Executive Officer. The appellant was found in possession of items which were eventually confirmed by the Government Chemist Laboratory Agency to be “Mirungi”. Besides, the appellant was taken to a special room near Minjingu police road block in the presence of Frank Peter Salala, Omary Kingiwe, Sergeant Dickson and

Police Constable Dituro where additional bundles of “Mirungi” leaves were found in his body. These facts were confirmed by a police officer, J.4045 PC Dituro, the sixth prosecution witness and Frank Peter Salala, the eighth prosecution witness. In his defence before the trial court, the appellant said that the bundles of “Mirungi” leaves belonged to his wife. The latter testified as the second defence witness and confirmed as such. The appellant prayed for forgiveness because he had children. In cross-examination, the appellant admitted being travelling from Arusha to Babati and being carrying a bag which was maroon in colour and a body shaper. It must be pointed out that the appellant recorded a cautioned statement on 7 November 2023 before Detective Corporal Dalina who testified as the fourth prosecution witness. In the cautioned statement that was admitted as exhibit p6. The appellant confessed being arrested with a narcotic drug although he attributed blame to his wife, Ester d/o Samwel who was procured by another woman to transport them to Babati. 4 The Criminal Law recognises both individual and joint criminal liability. The fact that the transportation of the narcotic drugs was engineered by someone else through the appellant’s wife is irrelevant. So long as it has been proved that the appellant was capable of committing the offence alone and he did commit it by himself,

it is no defence that he was acting under the instructions of his wife. I am of the view that these facts sufficiently corroborated the prosecution case that the appellant was carrying “Mirungi” leaves when he was arrested. There is a certificate of seizure filled by Assistant Inspector Hassan Shaban Karatha which was admitted as exhibit P7. In the first ground of appeal, the appellant complained that the certificate of seizure did not comply with the provisions of section 48 (2) (c) of the Drugs Control and Enforcement Act. The appellant argued that the provisions of section 48 (2) (c) were not complied with because the certificate of seziure was not recorded in the presence of the appellant’s friend or relative. On the other hand, Mr. Rwezahula, learned State Attorney, pointed out that the provisions of section 48(2) (c) direct an officer from the authority may stop and search, and fill a certificate of seizure. He stated that the fifth prosecutions witness assisted with the sixth prosecution witness searched the accused person in front of Omary Kungu, the bus conductor whose statement was recorded by H.812 Detective Corporal Joseph under section 34B (2) (c) of the Evidence Act and was admitted as exhibit P 9. The learned State Attorney added that after search police officers filled in certificate of seizure, it was signed by those officers, independent witness and the

appellant. He 5 concluded that it is not a legal requirement to have a relative or a friend of the suspect during the search. I agree with Mr. Rwezahula’s submission. Given that there was an independent witness, Frank Peter Salala, the eight-prosecution witness, I hold that this complaint has no merit. In light of the ample evidence adduced by the prosecution and the corroborative evidence from the accused’s defence and cautioned statement, I see no need to consider the validity of the conductor’s statement challenged in the second and third grounds of appeal. Accordingly, I dismiss the appeal and affirm the decision of Babati District Court. DATED at BABATI this 26th day of November 2024, F.M. MIRINDO

JUDGE COURT: Judgment delivered in chambers this 26th day of November 2024 in the presence of the accused person and in the presence of Ms. Mwanaidi Chuma, State Attorney for the respondent. B/C: Ms. Anna Mathayo present. F.M. MIRINDO

JUDGE 6 COURT: Right of appeal explained. F.M. MIRINDO

JUDGE 7