CRIMINAL APPEAL NO 451 OF 2022 FIDELIS MOHAMED KIKUNGWE VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA AT MOROGORO fCORAM: MWARIJA. J.A.. MASHAKA, J.A. And MAKUNGU. J.A.^ CRIMINAL APPEAL NO. 451 OF 2022 FIDELIS MOHAMED KIKUNGWE.............................. ..................... APPLICANT VERSUS THE REPUBLIC........... .......... ......... ....... ............................. RESPONDENT [Appeal from the Judgment of the High Court of Tanzania at Morogoro] (Nqwembe, J.) dated the 16th day of August, 2022 in Criminal Appeal No. 08 of 2022 JUDGMENT OF THE COURT S h May 2023 & 30hJuly, 2024 MASHAKA. J.A.: Fidelis Mohamed Kikungwe, the appellant and one Kelvine Soma Sadiki @ Mavula who is not party to this appeal were charged before the Resident Magistrate's Court of Morogoro, with three counts, namely; first, unlawful killing of specified animals c/s 47 (a) of the Wildlife Conservation Act, No. 5 of 2009 [Cap 283]; second, unlawful possession of government trophies c/s 86 (1), (2) (b) and (3) of the Wildlife Conservation Act, No. 5 of 2009 read together with paragraph 14 (d) of the First Schedule to, and sections 57 (1) and 60 (2) of the Economic and Organised Crime Control Act [Cap 200 R.E. 2002] (the EOCCA); and third, unlawful possession of firearm c/s 4 (1), (2) and 34 (2) of the Arms and Ammunition Act [Cap 223 R.E. 2002]. Only the appellant was found guilty and convicted on the 2nd and 3rd counts. He was sentenced to twenty years imprisonment for each count and the sentence to run concurrently. His appeal to the High Court was barren of fruit hence the present appeal. The prosecution alleged in the second count that on 26th July, 2014 at Kidai village within the District of Kilosa in the Region of Morogoro, the appellant was found in possession of government trophies to wit; four elephant tusks valued at 77S. 49,500,000.00 without a permit or authority. In the third count, it was alleged that the appellant was found in possession of a firearm make Rifle 375 without a permit or authority. The background facts leading to this appeal is that on 22nd July, 2014, Madaraka Kisunguda (PW3) a game ranger while on patrol with other game rangers at Udzungwa National Park received information that two elephants had been killed at Kidai village. Next day on 23rd July, 2014, they visited Kidai village accompanied by Deo Ngasakwa, the Village Chairman of Kidai (PW7) and others and they were shown a crime scene of the two elephant carcasses but their tusks had been removed using a sharp instrument. PW3 was later informed that it was the appellant who had killed the elephants. On 24th July, 2014, PW3 reported the incident to Mikumi Police station and on 25th July, 2014 he received information on the whereabouts of the appellant and arrested him. He took the appellant to Mikumi Police station where he was placed in custody. After that, the appellant took them to a place where he retrieved four elephant tusks, an axe and a gun which were admitted in evidence as exhibits P2, P3 and P4. The exercise of retrieving the said exhibits was witnessed by PW7, an independent witness. A seizure certificate (exhibit PI) was filled and signed by the appellant, PW1, PW7, Hamisi Kikungwe, D.3416 D/Sgt Haji, E.1180 D/Sgt Emmanuel and G.4520 PC Kombo. The exhibits P2, P3 and P4 were taken by PW1 and handed to E.9295 D/CPL Juma Korotu (PW5) at Mikumi Police station for custody. On 26th July, 2014, E l 180 D/Sgt Emmanuel (PW2) recorded his cautioned statement (exhibit P5) in which the appellant confessed to have killed the two elephants and removing its tusks at Kidat village. Vitalis Peter Uruka (PW6) conducted evaluation of exhibit P2, the government trophies on 28th July, 2014 at the Mikumi Police station; after confirming they were elephant tusks, he filled the trophy evaluation certificate which was admitted in evidence as exhibit P7. Exhibit P2 was later returned to PW5 for custody. On 31st July, 2014, PW5 took exhibits P2, P3 and P4 to Morogoro Police station and surrendered them to the exhibit keeper A/Insp. Barnabas Malya (PW4) who entered them in the Courts Exhibit Register No. 2/2014 (exhibit P6) and signed his name and force number. On 11th August, 2014 PW4 handed exhibit P2 to PW6 for safekeeping at Udzungwa National Park armoury, after signing exhibit P6 to acknowledge receipt. TNP 1056 Angomwule Mwakila (PW8), the exhibit keeper received the said exhibit P2 and kept in custody until they were tendered in evidence by PW1. According to exhibit P6, on 14th August, 2014, PW4 handed the gun Rifle 375 No. TZ CAR 43818 (exhibit P4) to PW5 after signing the said register and took it to a ballistics expert in Dar es Salaam. On 19th September, 2014, PW5 returned exhibit P4 to PW4 as shown in exhibit P6. In the defence case, the appellant isolated himself from the offence, stating that he was taken by the police to the crime scene where the four elephant tusks, an axe and a gun were found. He claimed that when PW7 arrived at the scene, he was forced by the police to retrieve the said exhibits from the said crime scene. The trial court was satisfied and impressed by the prosecution case, found the appellant guilty and convicted him as we earlier indicated. Nonetheless, his appeal to the High Court was unsuccessful, hence this final appeal. The appellant preferred the present appeal founded on seven grounds of appeal paraphrased as follows: 1. That the first appellate court erred in taw to uphold the decision o f the trial court without taking into consideration that exhibit P5 (cautioned statement) was recorded out o f time contrary to sections 50 (1) and 51 (1) o f the CPA Cap 20 R.E. 2019. 2. That the first appellate court erred in law in upholding the lower court decision without consideration that the trial court did not resolve the appellant's objection raised against exhibit PI (certificate o f seizure). 3. That the first appellate court erred in law in upholding appellant's conviction when there was failure to consider the appellant's defence before the trial court. 4. That the first appellate court engaged in conjecture on the contradiction regarding the marking o f exhibits P2, P3f and P4 after making findings that there were inconsistencies and contradictions by PW1, PW2, PW3f PW4, PW5, PW6, PW7 and PW8 on the identification o f exhibits P2, P3 and P4. 5. That the first appellate court erred in iaw to uphold the decision o f the trial court without considering that the chain was not established as per procedures laid down in the Police Force and Auxiliary Service (Police General Orders) Order, 2021, Order 229. 6. That the first appellate court erred in law in upholding the lower court's decision without consideration that this case was a retrial ordered by Hon. George Masaju, Judge on &h July 2018 in Criminal Appeal No. 403 o f 2016 and the appellant had been convicted and served part o f the sentence, so for justice the lower courts should have considered the period the appellantserved in jail. 7. That the first appellate court erred in law to uphold the decision o f the trial court while the prosecution evidence did not prove the offence beyond reasonable doubt During hearing of the appeal, the appellant was present and unrepresented. Whereas, Mr. Laiton Mhesa, learned Principal State Attorney assisted by Ms. Chivanenda Luwongo, learned Senior State Attorney, Ms. Aveline Ombock and Ms. Mary Lundu, learned State Attorneys represented the respondent Republic. Commencing ground one of appeal, it is the appellant's complaint that the cautioned statement (exhibit P5) was recorded out of time in contravention of sections 50 (1) and 51 (1) of the CPA. Mr. Mhesa argued on grounds one and two. Submitting in reply to ground one, he said that the evidence of PW2 shows that on 25/07/2014, the appellant was arrested at 6:00 pm and brought to the police station for interrogations which were conducted that night and later left to search for other suspects. They returned to the police station at 9:45 am on 26/07/2014. PW2 was directed by PW1 to record exhibit P5. He commenced to record it at 10:00 am on 26/07/2014 and completed at 02:00 pm. He further submitted that exhibit P5 was admitted in evidence without objection from the appellant. He explained that the computation of time commenced when the appellant left Mtandika village after being placed under arrest. To bolster his position, he referred us to the case of Joseph Stephen Kimaro & Another v. Republic (Criminal Appeal 340 of 2015) [2015] TZCA 316 (13 October 2015) TANZLII, urging us to consider that the circumstances are similar to the present case and find this ground has no merit and dismiss it. The first appellate court held that when the cautioned statement was tendered in evidence the appellant had failed to raise objection to its admission and therefore there was no contravention of procedural rules. The issue is whether there was compliance with the provisions of sections 50 (1) and 51 (1) of the CPA in observing the prescribed time for recording exhibit P5. For ease of reference, sections 50 (1) and 51 (1) of the CPA provides: "50. -(1) For the purpose o f this Act, the period available for interviewing a person who is in restraint in respect o f an offence is- (a) subject to paragraph (b), the basic period available for interviewing the person, that is to say, the period o f four hours commencing at the time when he was taken under restraint in respect o f the offence; (b) if the basic period available for interviewing the person is extended under section 51, the basic period as so extended. Sl.-(l) Where a person is in lawful custody in respect o f an offence during the basic period available for interviewing a person, but has not been charged with the offence, and it appears to the police officer in charge o f investigating the offence, for reasonable cause, that it is necessary that the person be further interviewed, he may - (a) extend the interview for a period not exceeding eight hours and inform the person concerned accordingly; or (b) either before the expiration o f the original period or that o f the extendedperiod, make application to a magistrate for a further extension o f that period." 8 It is a settled principle that a suspect who freely confesses to an offence is the best witness of what took place. See: Ibrahim Ibrahim Dawa v. Republic, Criminal Appeal No. 260 of 2016 and Hamis Chuma @ Hando Mhoja v. Republic, Criminal Appeal No.36 of 2018 (both unreported). It is not disputed that when PW2 tendered exhibit P5 as gleaned at pages 34 to 35 of the record of appeal, the appellant did not raise objection to its admissibility in evidence during the trial, which is one thing and the evidential weight to be attached to it is a different matter and it does not mean that he cannot challenge it. Having perused the record of appeal, it appears that the appellant was arrested and taken to Mikumi Police Station on 25th July, 2014 around 06:00 pm and on 26th July, 2014 around 9:45 am his statement (exhibit P5) was recorded by PW2. In our considered opinion the said statement was recorded out of the prescribed four hours in contravention of section 50 (1) of the Criminal Procedure Act [Cap. 20 R.E 2019]. PW2 had stated that the appellant was arrested on 25th July, 2014 by PW3 at Ruaha Mbuyuni and taken to Mikumi police station around 6:00 pm where PW2 interrogated him without recording his statement. After the interrogations PW2 testified that the appellant promised to lead them to search for his fellow culprits and other exhibits. They returned back to the police station at around 9:45 am on 26/07/2014 and PW2 recorded exhibit P5. Despite the snags in the investigation as there were other suspects involved in the commission of the crime, PW2 did not state how long.it took them and the appellant to search and find the other culprits. In the circumstance, there was an opportunity for PW2 to extend the interview for a period not exceeding eight hours and inform the appellant accordingly pursuant to section 51 (1) of the CPA, but failed to do so. There was no explanation by PW2 as to why the recording of the cautioned statement took place after the prescribed time. See: Alberto Mendes v. The Republic, Criminal Appeal No. 473 of 2017 (unreported). In Emmanuel Mahahya v. Republic, Criminal Appeal No. 212 of 2004 (unreported) which was referred to in Saidi Bakari v. Republic, Criminal Appeal No. 422 of 2013 (unreported), we explained that the provisions of sections 50 and 51 of the CPA were meant to: "Safeguard the human rights o f suspects and should therefore not be- taken lightly or as mere technicalities. The law is settled that noncompliance with the provisions o f section 50 and 51 o f the CPA is a fundamental irregularity that goes to the root o f the matter and renders the illegally obtained evidence inadmissible and cannot be acted upon by the Court." In the light of the noncompliance with the procedural requirements of sections 50 (1) and 51 (1) of the CPA, there was sufficient basis for the first appellate court to consider the evidential value of exhibit P5, find it was illegally obtained and ought to have been expunged, which we accordingly do so. Moving to ground two, the appellant is challenging the admissibility of exhibit PI that the trial court failed to resolve his objection to its admission in evidence. Mr. Mhesa argued that the trial court considered his objection that he did not sign it and both parties addressed the trial magistrate, and overruled him that he should subject PW1 to cross examination of the said document. As correctly submitted by Mr. Mhesa, at page 27 of the record of appeal, after the appellant objected to the tendering in evidence of the certificate of seizure by PW1 and the reply by the prosecution, the trial court overruled the objection and directed the appellant to cross examine the said witness on the said exhibit. The appellant did cross examine PW1 who stated; "it is true that you ied is (sic) to retrieved four elephant tusks, a gun make Rifle and an axe". We find no reason to fault the finding of the first appellate court that there was no need of an expert witness to testify if the finger print on exhibit PI belongs to the appellant as it was obvious that the li signatures placed by the appellant on exhibits P5 and PI were similar. Additionally, at page 73 of the record, it shows that the appellant did sign exhibit PI by writing his name as the person who was searched by PW1, while PW2 and PW7 an independent witness witnessed the whoie exercise to the appellant signing exhibit PI after he had retrieved exhibits P2, P3 and P4 from the bush where he had hidden them. Ground two has no basis and we dismiss it. The appellant's complaint in ground three is that his defence was not considered by the trial court. Working as a team, Ms. Luwongo submitted on this ground that the record of appeal does not show whether the first appellate court considered the defence evidence because the trial court only narrated it and failed to consider the determination of the first issue drawn, and referred us to page 99 of the record of appeal. It was her contention that since the first appellate court erred on that, the Court ought to invoke its revisional powers, under section 4 of the Appellate Jurisdiction Act, 2019, (the AJA) get in the shoes of the first appellate court to analyse and determine the defence evidence. Having scanned through the record of appeal, it seems that the defence evidence of the appellant was narrated by the trial court but it was not evaluated. Likewise, it was not considered by the first appellate court. Such 12 omission does not vitiate the judgment as this Court will step into the shoes of the first appellate court and evaluate the defence evidence if it casts doubt on the evidence of the prosecution. See: Nurdin Iddi Ndemule v. Republic, Criminal Appeal No. 410 of 2018 (unreported). We agree with the appellant and learned Senior State Attorney that the trial court and the first appellate court did not consider the defence evidence. We also agree with Ms. Luwongo that the Court has powers to do what the first appellate court should have done. However, as the complaint comprised a ground of appeal, we are hesitant to invoke our powers of revision under section 4 (2) of the AJA. We thus decline the invitation extended to us by Ms. Luwongo. Given the above position of the law, we step into the shoes of the first appellate court and consider the defence of the appellant and come to our own conclusion. We find the appellant's defence is a general denial that he did not commit the offence charged. He totally disassociated himself from leading PW1, TANAPA officers and PW7 to the bush where he had hidden the said exhibits. He further stated that PW7 was not present when the said exhibits were found and seized, and stated that he was forced to retrieve exhibits P2, P3 and P4. He also questioned the gun tendered by PW1 was 375 reg. no. 285 NP 14 while PW2 tendered a gun no. 375 TZ CAR 43818, hence were two different guns. He challenged the prosecution for failing to establish that the elephants were killed by the said gun and no ballistics expert was called to do so. Considering his defence evidence, PW1 had stated that the gun was retrieved from the bush by the appellant in the presence of PW7 and it was a Rifle reg. no. 375/285 NP 19 tons TZ 43818 which was seized as shown in exhibit PI. It is the same gun which was kept in custody as stated by PW1, PW2, PW4, PW5 and PW7 and later tendered in evidence. Despite that, the gun had the markings of the investigation number MK/IR/332/2014 which were made by PW1. This clears the doubt which the appellant raised. Further the prosecution charged the appellant with unlawful possession of government trophies and a firearm without a permit or authority and not kilfing two elephants by using a gun. In respect of ground four, it is the appellant's grievance that there are contradictions and inconsistencies in the evidence of PW1, PW2, PW3, PW4, PW5, PW6 and PW8 on identifying exhibits P2, P3 and P4. Arguing ground four, Ms. Ombock conceded that there were some minor lapses of memory when identifying the said exhibits in relation to the IR number in which some witnesses stated MIK while others stated MKI but strongly contended that it did not go to the root of the case. It was her stance that the witnesses identified each of the exhibits and the 14 inconsistency was on the marking on the exhibits due to lapse of time and memory. She prayed to the Court to dismiss it for lack of merit. On this issue, the first appellate court held that, the offence took place in year 2014 and the trial was conducted in year 2021, it is common for such lapse of time and slip of memories in specific and minor details. It is a trite that in evaluating contradictions, it serves no purpose for the Court to pick sentences and consider them in isolation from the rest of other pieces of evidence. The duty of the Court is to decide whether the discrepancies and contradictions are only minor or whether they go to the root of the matter (See: Dickson Elia Nsamba Shapwata and Another v. Republic, Criminal Appeal No. 92 of 2007 [2008] TZCA 17 (30 May, 2008) TANZLII cited in Anselimo Kapeta v. Republic, Criminal Appeal No. 365 of 2015 (unreported). The basis of this complaint is the investigation reference number placed on exhibits P2, P3 and P4 as MIK/IR/326/2014 as witnesses referred the same as MKI/IR/ 326/2014. Thus, the attack is on the letters MIK and MKI which is minor and does not go to the root of the matter. We are of the firm opinion that this is not a contradiction but a result of loss of memory on the part of the witnesses or could have been a slip of the pen on the part of the trial magistrate. In whatever circumstance, the contradiction is minor and negligible. In Marmo s/o Slaa Hofu & 3 Others 15 v. Republic, Criminal Appeal No. 246 of 2011 (unreported), the Court explained that: "... normal discrepancies are bound to occur in the testimonies o f witnesses, due to normal errors o f observations such as errors in memory due to lapse o f time or due to mental disposition such as shock and horror at the time o f occurrence. Minor inconsistencies, embellishments or improvements, on trivial matters which do not affect the case o f the prosecution case should not be made a ground on which the evidence can be rejected in its entirety." In Gitabeka Giyaya v. Republic (Criminal Appeal No. 44 of 2020) [2022] TZCA 830 (28 December 2022) TANZLII, we pronounced this position: "... we are now comfortable to recap that as human recollection is not infallible and due to the frailty o f human memory and if the discrepancies complained o f are on details, the Court may overlook such discrepancies." The attack on credibility of witnesses based on the contradictions and inconsistencies as pointed above is not fatal and cannot be challenged as they witnessed every act in terms of arrest of the appellant, retrieval of exhibits P2, P3 and P4 from a bush together with signing of exhibit PI. The 16 evidence shows it was the appellant who took them to the place where he dug out the exhibits from the ground, a place only known to him. We find ground four lacking in merit and is dismissed. In respect of chain of custody which is ground five of appeal, the appellant's compliant is that the chain of custody was not established according to the procedure laid out in the Police Force Auxiliary Service (Police Genera! Orders), specifically Order 229. Ms. Ombock argued that the chain of custody was not broken as PW1 seized the exhibits P2, P3 and P4 after they were dug out from the bush by the appellant and were properly tendered in evidence. Further she submitted that there is exhibit P6 on how PW5 received the exhibits, handed them to PW4 and PW6. Hence, she concluded that there was no broken chain of custody, bolstering her stance by referring the case of Gitabika Giyaya v. Republic (supra), at pages 17 and 18, that exhibits which cannot be changed easily or be tampered with, such documentation on its chain of custody is not strictly applied. She prayed the ground be dismissed. It is an established principle that, the movement of the exhibit has to be documented to guard the exhibit from being tampered with and for that reason guard the whole process of chain of custody. See: Paulo Maduka and Others vs. Republic, Criminal Appeal No. 110 of 2007 (unreported). Nonetheless there are circumstances that the integrity of the chain of custody cannot solely be determined by documentation rather by credibility of the evidence. See: Sophia Kinganzi v. Republic, Criminal Appeal No. 273 of 2016; Vuyo Jack v. The Director of Public Prosecutions, Criminal Appeal No. 334 of 2016; Kadiria Said Kimaro v. Republic, Criminal Appeal No. 39 of 2017 (all unreported). In the present case, the evidence adduced shows that, the prosecution witnesses managed to show how exhibits P2, P3 and P4 were retrieved, controlled, stored, transported through exhibit P6 and finally tendered before the trial court. As gathered from PWl's evidence, he seized exhibits P2, P3 and P4 from the appellant then he handed all exhibits to PW5. Upon receiving them, PW5 handed exhibit P2 to PW6 for valuation. PW6 valued the four tusks and upon completion he returned them to PW5. Eventually, PW5 was instructed to surrender all exhibits to PW4 and both signed exhibit P6. Exhibit P2 was handed to PW6 who signed on exhibit P6. PW6 handed the four tusks marked MIK/IR/326/2014 to PW8, the Udzungwa National Park exhibit keeper who kept them in custody and took to court and to be tendered in evidence. The trial court ordered exhibit P2 to remain in the custody of PW8. On the other part of the gun (exhibit P3), PW4 gave it to PW5 who took it to a ballistics expert and later it was returned to PW4 who tendered the same in evidence 18 before the trial court as proof that the appellant was found in possession of it. In the explained circumstances, the prosecution witnesses proved the unbroken chain of custody hence this ground lacks merit We will determine ground seven of appeal, and conclude with ground six. Ground seven of appeal is a complaint that the charge against the appellant was not proved to the hilt. From the record of appeal and as discussed above, it is evident that the appellant led PW1 and PW2 to the discovery of the elephant tusks, firearm and axe. The chain of custody of exhibits P2, P3 and P4 which were tendered in evidence was intact from the moment they were seized by PW1 and exhibit PI was filled as witnessed by PW7 until tendering in evidence during trial. The chain of custody was not broken down as we earlier held. Though the appellant is adamant that he did not sign exhibit PI, save for the police officers and officers from Udzungwa National Park who are vested with the responsibility to care and protect the wild animals, an independent witness PW7 participated from the beginning when he heard a gunshot near his village along Ruaha river on the side of the Udzungwa National Park and reported at Ruaha Mbuyuni Police station. He received Udzungwa staff on 22/07/2014 who heeded his call and led them to the area where the sound of gunshot came. He crossed the said river in their company by boat and found two elephants were killed and the trophies were cut off. On 26/07/2014, at 5:00 pm, PW1, TANAPA officials and the appellant arrived at his village and PW7 was informed that the appellant promised to show them where he had hidden the elephant tusks. PW7 asked the appellant if he had the four elephant tusks and instruments used to commit the offence and he agreed. The appellant led them to a bush almost 40 metres to his house and showed them the four elephant tusks, a locally made gun and an axe which were hidden there. PW1 seized the items and filled exhibit PI, which was signed by PW1, PW7, the appellant and others as stated earlier. After that, PW1 arrested the appellant and left with him. PW7 identified exhibit P2 by the characteristics of how they were and the marking MIK/IR/326/2014 done by PW1 after seizure. In his defence evidence, though the appellant did not dispute that he was arrested on 24/07/2014 by police officers from Ruaha Mbuyuni station and was transferred to the Mikumi Police station on 26/07/2014 at 8:00 pm. He does not deny the fact that they went to his village and the exhibits P2, P3 and P4 were retrieved from a bush, As earlier discussed, he totally disassociated himself from leading police officers, TANAPA officers and PW7 to the bush where he had hidden the said exhibits. He further stated that PW 8 was not present when the said exhibits were found and seized. It was his contention that he was forced to retrieve exhibits P2, P3 and P4. 20 Interestingly, he did not cross examine PW7 on this aspect. We find that the defence evidence did not shake the strong prosecution evidence based on the credibility and reliability of prosecution witnesses and the chain of custody. In that regard as correctly held by the lower courts, the prosecution evidence of PW1, PW2, PW3, PW4, PW5, PW6, PW7 and PW8 together with exhibits PI, P2, P3, P4, and P6 proved the charge to the hilt The general denial of the appellant, did not raise any reasonable doubt in the prosecution's case. As much as his duty was to raise reasonable doubt and punch holes in the prosecution's case, it was not successfully done. We, therefore, find the charge against the appellant was proved beyond reasonable doubt. This also answers the complaint by the appellant that the case was not proved beyond reasonable doubt. We find ground seven also fails. Concluding with ground six, the appellant's complaint is the sentence meted by the trial court without considering that he was once convicted and the case was ordered to be tried de-novo by Hon. Masaju, Judge on 6th July, 2018 in Criminal Appeal No. 403 of 2016. He submitted that he had been convicted and had served part of his sentence. Therefore, the lower courts ought to have considered the period he spent in jail for the interest of justice. 21 In reply, Ms. Lundu submitted that the first appellate court has the discretion to consider the issue if moved by the appellant which was not the case. She contended that the appellant failed to state how long he was incarcerated during mitigation. It was her stance that, the appellant was properly and correctly sentenced to 20 years imprisonment as provided under section 60 (2) of the EOCCA. Thus, ground six is meritless. We will determine this ground on two limbs. On the first limb, it is clear that the sentence meted by the trial court is as provided by the law and it cannot be altered. Section 60 (2) of the EOCCA states clearly that where the charge involves an economic offence, the sentence should not be less than twenty years imprisonment. Therefore, we find that the trial court correctly imposed the sentence as it has no mandate to sentence the appellant to less than twenty years. On the second limb, after the trial court had sentenced the appellant to serve twenty years imprisonment, it has the mandate to order the sentence to run from a certain date having considered that the appellant was once convicted, sentenced, and he had partly served his sentence until the order of trial de-novo. Such a period spent in jail ought to have been considered and be deducted. See: Vuyo Jack v. The Director of Public Prosecutions, (supra). We find this ground is partly merited. The period of imprisonment served by the appellant after his first conviction, that is the period of two years should thus be reduced from the twenty tears imposed after his second conviction. In fine, the appeal against conviction is dismissed but the appeal against sentence is partially allowed. DATED at DAR ES SALAAM this 23rd day of July, 2024. A. G. MWARIJA JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL 0. 0. MAKUIMGU JUSTICE OF APPEAL judgment delivered this 30th day of July, 2024 in the presence of the Appellant in person and Mr. Simoni Mhina, learned State Attorney for the Respondent/Republic both via video conference from Morogoro High Court, is hereby certified as a true c o d v of the original. 23