CRIMINAL APPEAL ISAKA MWIKWABE

IN THE HIGH COURT OF TANZANIA MUSOMA SUB - REGISTRY AT MUSOMA CRIMINAL APPEAL NO. 000023200 OF 2024 REFERENCE NO. 202408162000023200 BETWEEN ISAKA S/O MWIKWABE @ MWITA...................... APPELLANT VERSUS THE REPUBLIC............................................................... RESPONDENT JUDGMENT 14th & 14th November, 2024 M. L. KO MBA, J. The accused namely Isaka Mwikwabe Mwita was charged with three counts which are 1st count; Unlawful entry into the Game Reserve contrary to section 15(1) and (2) of the Wildlife Conservation Act [CAP 283 R.E 2022], 2nd Count; Unlawful possession of weapons in Game Reserve contrary to section 17(1) and (2) of CAP 283 R.E 2022 read together with paragraph 14 of the first schedule to and sections 57(1) and 60(2) both of the Economic and Organized Crimes Control Act [CAP 200 R.E 2022], 3rd Count; Unlawful possession of government trophies contrary to section 86(1) and (2)(c)(ii) of CAP 283 R.E 2022 read together Page 1 of 6 with paragraph 14 of the first schedule to sections 57(1) and 60(2) both of CAP 200 R.E 2022. On the 1st count, it was alleged that the appellant on 5th September, 2023 at Mto Bonchugu area into Ikorongo Game Reserve within Serengeti District in Mara region, did enter into the Game Reserve without permission of the Director of Wildlife. On the 2nd count, it was alleged that on the same date and place appellant was found in Unlawful Possession of weapons to wit; One machete without a permit and failed to satisfy an authorized officer that the same was intended to be used for purposes other than hurting, killing, wounding or capturing of wild animals. In the 3rd Count, it was alleged that on the same date and place the appellant unlawfully found being in possession of Government Trophies to wit: two fresh hind limbs of wildebeest valued at TZS 1,601,600/= the properties of the United Republic of Tanzania. When the charge was read over and explained to appellant, the appellant pleaded not guilty to the offences charged. To establish the case against the appellant, the prosecution called three (3) witnesses namely; Gaston Phinias Mtaki (PW1), Wilbroad Vicent (PW2), and WP 8275 DC CPL Alice (PW3) whom were supported with five (5) Exhibits, which were admitted thus; Exhibit P2, weapons to wit; one panga and a torch light; Exhibit Pl, Certificate of seizure; Exhibit Page 2 of 6 P3, a Trophy valuation certificate; Exhibit P4, inventory form; Exhibit P5, A geographical map. Appellant was arrested by PW1 who is a conservation ranger on 5th September, 2023 while on patrol at Mto Bonchugu within Ikorongo Game Reserve while accompanied with other rangers. On 8th September, 2023 the Government trophies were identified by PW2, a wildlife officer to be two fresh hind limbs of wildebeest with skin worth TZS. 1,601,600/=, equal to one animal killed. The trial Magistrate was satisfied that prosecution managed to prove their case beyond reasonable doubt, he convicted the appellant on all three counts and sentenced him to pay TSZ. 100,000/ for the first count, to serve 20 years imprisonment for the second and third counts. The sentence was ordered to run concurrently. Unsatisfied by the decision of the trial court. Timely appellant lodged his petition of appeal to this court with five grounds which I shall not reproduce now for reasons which will be revealed latter. During the hearing of this appeal, the appellant appeared solo without representation while the respondent Republic was represented by Ms. Beatrice Mgumba and Mr. Jonas Kivuyo both State Attorneys. Page 3 of 6 When given time to argue his appeal appellant was very brief, he prayed this court to adopt his petition of appeal and release him from prison because he was in his farm and not National Park. Mr. Kivuyo submitted brief on technical and procedural issues. He said at the trial court the matter was filed with defective certificate and consent for failure to refer all the offences cited in the charge sheet and therefore, District court had no jurisdiction to entertain the matter. He referred this court to decision in Dilipkumar Maganbai Patel vs Republic (Criminal Appeal No. 270 of 2019) [2022] TZCA 477 (25 July 2022) at page 12 and 13 and proceeded that the defect found is ground for nullification of proceedings and set aside conviction of the appellant. It was his position that the matter has to be heard afresh as per section 366 (1) (a) of Criminal Procedure Act, Cap 20 and prayed this court to order re-trial. Because the submission was technical, appellant had nothing to rejoin. I have studied the certificate which was filed by District Prosecution Officer on 11th September 2023 and further the consent issued by the same officer on 11th September 2023 and find that the consent did not refer to section 15 (1) and (2) of the Wildlife Conservation Act (Cap 283 R.E 2022) which was clearly cited in the charge sheet and that the Page 4 of 6 certificate did not refer section 17 (1) and (2) of the same act which was also cited in the charge sheet. In the case of Dilipkumar Maganbai Patel vs Republic (supra) the Court of Appeal observed that; 'We have no doubt that in view of our deliberations above the consent and certificate conferring jurisdiction on the trial court were defective, though they were made under the appropriate provisions; sections 12(3) and 26(1) of the EOCCA but referred to the provisions which the appellant was not charged with. The consent and certificate did not refer to section 86(1), (2)(c)(ii) and (3) of the WCA which was clearly cited in the charge sheet. The certificate and consent were therefore incurably defective. See also Mussa Juma Bakari vs Republic (Criminal Appeal No. 532 of 2022) [2024] TZCA 455 (13 June 2024) and Daniel Mohere Chacha vs Republic (Criminal Appeal No. 382 of 2020) [2024] TZCA 531 (9 July 2024). At this juncture, I join hands with State Attorney that certificate and consent was defective for failure to refer the provisions which featured in the charge sheet hence the trial court had no jurisdiction to handle the matter which was subject on this appeal. In Dilipkumar Maganbai Patel vs Republic (supra) the court had this to say; Page 5 of 6 'The defects rendered the consent of the DPP and certificate transferring the economic offence to be tried by the trial court invalid. For that reason, we are constrained to find that the trial and proceedings before the Resident Magistrate Court of Dar es Salaam at Kisutu in Economic Case No. 58 of 2016 and the High Court Criminal Appeal No. 146 of 2018 were nothing but a nullity...On the other hand, having considered the circumstances of the case and parties' arguments for and against, we hold that a retrial will be in the interest ofjustice. We thus order a retrial of the case, subject to a certificate conferring jurisdiction and consent of the Director of Public Prosecutions to prosecute the appellant.' Borrowing a leaf from above excerpt, I hereby nullify proceedings of the trial court and set aside conviction and sentence imposed. I proceed to order, under section 366 (1) (a) of Criminal Proceedings Act, Cap 20 re­ trial of the case subject to fresh certificate and consent of the Director of Public Prosecution to prosecute the appellant. The matter should be handled in a fast track manner and has to complete not more than June 2025. Meanwhile the appellant shall remain in custody waiting for prosecution. It is so ordered. M. L. KOMBA JUDGE 14th November, 2024 Page 6 of 6