KISHIMWI LEKIMBWAI V

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA CRIMINAL APPEAL NO. 18490 OF 2024 (C/F District Court of Arumeru at Arumeru in Criminal Case No. 49 of 2023 before I.T. Nguvava) BETWEEN KISHIMWI LEKIMBWAI.............................................................. APPELLANT VERSUS REPUBLIC.............................................................................. RESPONDENT JUDGEMENT 27/09/2024 8i 11/10/2024 MWENDA, J.: Before the District Court of Arumeru at Arumeru, the appellant herein above was charged for Trafficking in Narcotic Drugs contrary to section 15A (1) and (2) (c) of the Drug Control and Enforcement Act, [ Cap 95 R.E 2019] as amended by Section 19 of the Written Laws (Miscellaneous Amendments) (No. 5) Act, No. 9 of 2021. At the end of the judicial day, the Trial court convicted and sentenced him to serve a jail term of thirty years imprisonment. 1 | P age The brief facts of the matter which led to arraignment of appellant are that on 13/7/2024 the task team involving the officers from DCEA, the Arumeru District Commissioner's office (including the DC herself), Police Force, TANAPA and other Government officers conducted a special operation to search cannabis sativa's farms and those involved in the said plant at KISIMIRI JUU area within Arumeru District in Arusha Region. Upon arrival at KISIMIRI JUU, villagers dispersed in horror and ran away from their homes. This act did not stop the said team from accomplishing their mission as they mounted search for cannabis in houses which were suspected to host suspects dealing in the said drug. In the cause, the team approached a compound with houses (boma) and arrested two people while others took to their heels. Before conducting search, the task team found an independent witness to witness seizure and arrest. The appellant and another person who was acquitted by the trial court were then arrested and search was conducted in one of the houses. In the process, two sulphate bags with cannabis sativa (bhang) were impounded. They were then marked as exhibit A and Al and a certificate of seizure (Exhibit P6) was prepared and signed by accused persons and an independent witness. 2 | Page The step that followed was to convey the suspects and exhibits to Arumeru Police Station and later the exhibits were conveyed to the Government Chemist Laboratory (GCLA) for examination/testing. The results tested positive to Cannabis Sativa. After completion of investigation the suspects were arraigned before the court as stated above. At the trial, the prosecution paraded three witnesses whose evidence was in line to the facts narrated above. They also tendered physical exhibits which is two sulphate bags containing bhang as exhibits P.l collectively and documentary exhibits to wit, the DCEA Form No. 001 and a letter requesting for testing of the samples as exhibits P.2 collectively; the sample notification receipt Marked Lab. No. N20 23-00728 as exhibits P.3; the report from the Government Chemist Laboratory Agency with lab test results as exhibit P.4, a PF-16 book as exhibit P.5, seizure certificate as exhibit P.6 and the statement of SANGAI MAMBAI which was tendered (under S.34B of the TEA) as part of the prosecution's evidence. In defence, the appellant and his father who was acquitted by the trial court denied in toto any involvement in the alleged crime. On his part, the appellant testified that he was arrested on 13/7/2023 while sleeping with his wife at his home. According to him, search was conducted in his house, but 3 | P a ge nothing was found. He testified further in that having failed to find anything in his house, the task team took him to his father's house, the father who was also arrested and stood charged as the 1st accused but later acquitted. He rested by testifying that he and his father were conveyed to police station without knowing their offences. After a full trial, the trial court was satisfied that the prosecution proved its case against the 1st accused person only. He was then convicted and sentenced to serve a term of thirty (30) years jail imprisonment. On his side, the 2nd accused person was acquitted as the prosecution failed to prove the case against him. With the said conviction, the appellant lodged the present appeal with sixteen (16) grounds as appearing in the petition registered in the docket. For reasons apparent herein below, this court found no reasons to reproduce the said grounds in this judgment. When this appeal was called on for hearing, the appellant was present and enjoyed the services from Mr. JOHN LAIRUMBE, learned advocate whilst Ms. EUNICE MAKALA, learned State Attorney represented the Respondent /Republic. The appeal was argued orally. Each party aired their respective 4 | P a ge submission for and against this appeal. The content of the same shall be considered in the cause of dealing with the issues which this court has raised. That said, this court framed two issues for determination. One, whether the two sulphate bags containing bhang (exhibits P.l collectively) were impounded from the appellant's home or/whether the appellant is connected to the impounded two sulphate bags containing bhang (exhibit P.l collectively. Two, whether the chronological documentation and/or paper trail, showing the seizure, custody, control, transfer, analysis, and disposition (chain of custody) of exhibit P.l collectively was observed. Regarding the first issue, it was the appellant's defense during trial that he was arrested at his home while sleeping with his wife. Upon such arrest, search was conducted in his house, and nothing was retrieved. According to him, he was then conveyed to his father's residence where upon search nothing was also impounded. If that is the case, the prosecution ought to have paraded an independent witness to testify if truly the search and seizure was indeed conducted. During trial, the prosecution side used the statement of one of Ms. SANGAI MAMBAI LENGARUS (Area commissioner) which was tendered under Section 34B of the TEA. In her statement she said that she is the chairman of the KING'ORI ward's security committee who was 5 1 P a ge summoned to witness search as an independent witness at the appellants and his father's residents. According to her, her attendance followed a phone call from DSO. That being the evidence from her, the court asked if the tendering of the said statement was in alignment of the dictates of section 34B of the TEA. A perusal from record reveals non-compliance to Section 34B as follows. One, the said statement was tendered by the learned State Attorney which was not proper as the State attorney stepped in the shoes of the witness. The said statement ought to be tendered by the recording officer or any other officer conversant with such statement and not the public prosecutor. Two, before its tendering, the said exhibit was not cleared for admission and three, the republic did not advance reasons as to why they failed to summon Ms. SANGAYA to testify before invoking Section 34B.In other words, no witness was called to tell if the said Ms. SANSANGAYA was nowhere to be found or dead. That being the case, I agree with the learned state Attorney that such statement should be expunged from record as I hereby do. Having expunged such statement from the records, what remains is that there was no independent witness during search and seizure thus creating doubt on the whole exercise. The law is-clear that whenever there is doubt, the benefit of which shall go to the accused person. See AQUINO 6 | P a ge MALATA V. REPUBLIC, CRIMINAL APPEAL NO 438 OF 2019, CAT where the court held inter alia that: "It is trite law that whenever there is doubt on the prosecution's case, the same should be resolved in favor of the accused." Even if search and seizure was conducted in accordance with the law, which is not the case, PW.3's evidence indicates that the house in which the purported exhibits were found does not belong to the appellant. At page 28 of the typed proceedings, PW.3 is quoted to say the following: "I was with area commissioner I interrogated them and said he was head of Boma(house) and the other was his son we were sure it was the owner of the house" (sic). As stated earlier, the above quote entails the head of the house was the appellant's father. If that is the case one may wonder as to why the appellant was arrested in connection to the purported exhibits if the owner of house was his father who was acquitted by the trial court. This dents the prosecution's case as it creates doubt and the benefit of which should go to the appellant as stated above. 7 | P a ge Regarding the second issue, the same was raised by the appellant in the 2nd ground of appeal. While submitting before this court, Mr. Lairumbe on behalf of the appellant stated that the chain of custody in this case was broken. He referred this court to the case of PAUL MADUKA & OTHERS V. REPUBLIC, CRIMINAL APPEAL NO. 110 OF 2017. The learned counsel submitted that PW3 did not label the said exhibits on 13/7/23 until 14/7/2023 when he did so at the police station. He wondered as to why he did not label the said exhibits at the crime scene. According to him that was enough to break the chain of custody. Further to that he said that PW3 did not explain as to who received the said exhibits at Usa River Police station when they arrived with the accused persons. He stressed that PGO No. 229 (12) requires exhibits to be labeled at the scene of crime which was not the case in the present matter. He referred this court to the case of OMARY SAID ATHUMAN SAID V. REPUBLIC, CRIMINAL APPEAL NO. 34 OF 2020. He then concluded in that since the chain of custody was broken, then that itself creates doubt on the prosecution's case. From the respondent's side, Ms. Makala replied that the chain of custody was intact. She relied on exhibit Pl (two sulphate bags full of Bhangi) and the evidence from PW3 who testified that the appellant was arrested with those 8 | Pa ge two bags. She further submitted that when the appellant was conveyed at the police station, P.W 3 kept those bags by himself until the following date when he took the sample to the government chemist. She further said that on 14/7/2023 the said exhibits were handled to PW2 while already labeled. She believed thus, the chain of custody from Pwl to PW2 and then from PW3 to PW1 was intact. She then referred this court to the case of SHABAN ALLY ATHUMAN V. THE REPUBLIC, CRIMINAL APPEAL NO. 151 OF 2021 to support her argument. That being the submission from both sides, it is pertinent to point out that before any physical exhibit can be relied on by the trial court, its chain of custody from the time of its seizure to when it is tendered in court be clearly established. The rationale behind includes, one, to ensure the integrity of the chain of custody to eliminate the possibility of the exhibit being tampered with and. Two, to establish that, the alleged evidence is in fact related to the alleged crime in which it is being tendered for, rather than for instance having been manufactured fraudulently to make someone guilty. This position was adumbrated in CHUKWUDI DENIS OKECHUKWU & 3 OTHERS VS. THE REPUBLIC, Criminal Appeal No. 507 of 2015, CAT (Unreported). 9 | P a ge In the present matter, the evidence regarding chain of custody of exhibits Pl Collectively came from PW.3. In his evidence, PW3 an officer from DCEA testified that while conducting operation at Kisimiri juu area within Arumeru District two sulphate bags were impounded in a house of the two suspects, one of them being the appellant. According to him, before conducting search, they summoned an independent witness whereby the said sulphate bags were found, and the certificate of seizure was prepared to that effect. According to this witness on 14/7/2023 at around 03:00 am they headed back to Arumeru and arrived at Usa River police station at 06:00 am. This witness further said that Ms. SANGAYA and himself inspected the said sulphate bags in the presence of the accused persons and marked them DCEA Arusha IR/25/2023 before he left the station until 11.00 am when he came back to collect the said exhibits foe testify before GCLA. According to him the said exhibits (drugs) were under his supervision during all that time. This witness went on to narrate on how he handled the same to the GCLA and how after examination and given positive results, took those sulphate bags to Arusha Central Police station and handled them to PW2 (the exhibit Keeper). 10 | P a g e That being his evidence regarding chain of custody of the said exhibits, it is important to state that the chain of custody requires that from the moment the evidence is collected its very transfer from one person to another must be documented and provable that nobody else could have accessed it. This is meant to ensure that the alleged evidence is in fact related to the alleged crime. This position was stated in the case of PAULO MADUKA AND FOUR. OTHERS V. REPUBLIC, Criminal Appeal No. 110 of 2007 (CAT -unreported), where the Court held inter alia that: " ...chain of custody is the chronological documentation and/or paper trail, showing the seizure, custody, control, transfer, analysis, and disposition of evidence, be it physical or electronic. The idea behind recording the chain of custody ... is to establish that the alleged evidence is in fact related to the alleged crime - rather than, for instance, having been planted fraudulently to make someone guilty. The chain of custody requires that from the moment the evidence is collected its very transfer from one person to another must be documented and that it be provable that nobody else could have accessed it." 11 | P a g e As per the series of events explained by PW.3, it is apparent that there has been a time where a chain of custody was broken. In his evidence PW3 testified that they left KISIMIRI JUU at 03:00 am and arrived at Usa River police station at 06:00 am. And having spent a little, he left and came back at 11:00 am. The records are however silent as who was handed over the said exhibits when PW3 left the station in the morning. Although PW3 alleged that he kept the said exhibits by himself from the time they were seized until they were taken to GCLA, there is a span of time which he admitted that he left them at Usa River Police station. That being case this court is of the view that he ought to have mentioned under whose care were the said exhibits left. This is because according to the record, PW3's working station was Dar Es Salaam which means there was not possibility of him keeping the said exhibits at Usa River police station where he was a stranger. From the fore going since the items in question are drugs which can easily change hands easily, it is the firm view of this court that there is no proper chronological chain of custody. In the present case, since the chain of custody was broken it raises serious doubts in the prosecution case and I agree with Mr. Lairumbe 12 | P a ge that this renders the charge against the appellant unproven. Thus, essentially I find ground two with merits. As the 2nd ground of appeal managed to dispose this appeal, there is no need to determine the remaining grounds. In the upshot, I allow the appeal, quash the conviction and set aside the sentence imposed on the appellant. I order that the appellant be set at liberty forthwith unless he is held for some other lawful cause. DATED at ARUSHA this 11th day of October, 2024. 13 | P a g e