kairo kerio so nginya sammy 2024 tzhc 209 9 february 2024

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

THE CORRUPTION AND ECONOMIC CRIMES DIVISION MANYARA SUB-REGISTRY

AT BABATI ECONOMIC CAUSE NO. 4 OF 2023

THE REPUBLIC

VERSUS KAIRO @ KERIO S/O NGINYA SAM M Y...................ACCUSED

JUDGMENT , 11th December 2023 & <?h February, 2024 Kahyoza, J.: Kairo Nginya Sammry@ Kerio Nginya Sammy, the accused person (Kairo) and Salimu Mohamed who passed on before trial, allegedly were found trafficking in narcotic drugs; to wit catha edulis commonly known as khat or "mirungi", weighing more than fifty kilograms. The case abated against Salimu Mohamed, who died before he was committed for trial, so only Kairo was available for trial. Kairo pleaded not guilty to the information. To prove the case, the prosecution summoned seven witnesses and tendered eight exhibits. The issue is whether Kairo was trafficking in khat weighing more than fifty kilograms. Kairo Nginya Sammry@ Kerio Nginya Sammy, was arraigned before this Court for an offence of trafficking in narcotic drugs contrary to section 15 (1) (a) and (3) (iii) of the Drug Control Enforcement Act, [Cap. 95, R.E. 2019] (the DCEA), read together with paragraphs 23 of the First Schedule to, and section 57(1) and 60 (2) of the Economic and Organized Crime Control Act, [Cap. 200, R.E. 2019 (now R.E. 2022)] (the EOCCA). The particulars of the offence are to the effect that, on 04th day of March, 2022, at Minjingu area within Babati District in Manyara Region, Kairo Nginya Sammry@ Kerio Nginya Sammy and Salimu Twaha Mohamed (who passed away) were found unlawful conveying 469 bundles of narcotic drugs to wit;

Cathaeduliscommonly known as "mirungi" weighing 160.35 kilogram in a motor vehicle with registration No. T.270 CD 164 make Nissan Murano. Following Kairo's plea of not guilty, the prosecution summoned seven witnesses and tendered exhibits namely, three empty boxes (Exh. P.l), three sulphate boxes (Exh. P.2), motor vehicle with Reg. No. T.270 CD 164 and the ignition key (Exh. P.3), certificate of seizure (Exh. P.4), inventory form (Exh. P.5), the certificate of destruction, (Exh. P.6), laboratory submission Form, DCEA 001, (Exh. P.7) and the Government Chemist report, (Exh. P.8). The prosecution evidence is that on 4.3.2022 Kairo and Salimu Mohamed, the deceased, were found at Minjingu check point conveying cathaedulis commonly known as "mirungi". On that material day, A/Inspector Hassan Shaban Karata (Pw3) stopped a motor vehicle with Registration No. T.270 CD 164, Nissan Murano, black in colour. The motor vehicle was heading to Babati from Arusha with two people, a driver, and a passenger. A/Inspector Hassan Shaban Karata (Pw3) introduced himself and the passenger introduced himself. He told him that he was working with INTERPOL and presented his Identity Card (ID). While interviewing the passenger, A/Inspector Hassan Shaban Karata (Pw3) smelt something like khat "mirungi". He became suspicious and ordered the driver to drive to the police station, which was 15 meters from the

check point. The driver obeyed. A/Inspector Hassan Shaban Karata (Pw3) informed other police officers to be on guard as he suspected the vehicle carried khat. On reaching the police station, A/Inspector Hassan Shaban Karata (Pw3) ordered the driver and his passenger to disboard and arrested them. He summoned Mr. Godfrey Edward (Pw4), the village executive office of Minjingu village, who responded and arrived at Minjingu police station. A/Inspector Hassan Shaban Karata (Pw3) informed Mr. Godfrey Edward 3 (Pw4) that he suspected the vehicle carried goods suspected to be narcotic drugs. He also introduced Mr. Godfrey Edward (Pw4) to the suspects. A/Inspector Hassan Shaban Karata (Pw3) ordered the suspects to open the vehicle. They obliged, opened the vehicle and a search commenced. They searched the front and rear seats and found nothing against the law. Then, A/Inspector Hassan Shaban Karata (Pw3) ordered Kairo to open the boot. They searched in the boot of the car where they found three boxes, khaki in colour with paper stuck on the boxes reading "Mahakama ya Mkoa Babatf and three sulphate bags. A/Inspector Hassan Shaban Karata (Pw3) ordered to take the boxes and sulphate bags out of the motor vehicle and open them. They opened the sulphate bags and boxes and found bundles of fresh leaves of "mirungi" wrapped in banana leaves covered with newspaper. The first sulphate bag had 60

bundles, the second bag had 60 bundles and a third bag had 91 bundles. The first box had 83 bundles, the second box had 89 bundles and a third box had 86 bundles. They were 469 bundles in total. After the search, A/Inspector Hassan Shaban Karata (Pw3) seized the items by preparing the certificate of seizure. He seized three sulphate bags with 60, 60, 91 bundles and three boxes with 83, 89 and 86 bundles of substance suspected to be narcotic drugs. A/Inspector Hassan Shaban Karata (Pw3) signed the seizure certificate together with the suspects, Mr. Godfrey Edward (Pw4) an independent witness and one police officer Mohamed. A/Inspector Hassan Shaban Karata (Pw3) tendered a certificate of seizure (Exh. P.4). A/Inspector Hassan Shaban Karata (Pw3) opened a police case file No. MGG/IR/242/2022 and notified his leaders one of them being ASP Emmanuel Kandora (Pw2). ASP Emmanuel Kandora (Pw2) on receipt of the information from A/Inspector Hassan Shaban Karata (Pw3), went to Minjingu that very day, on 4.3.2022. He found the suspects in the police lock up. They took them out of the lock up and he interviewed them. The first told him that his name was Kerio Nginya Sammy and second one was Salim Twaha Mohamed. He deposed that the suspect admitted to be in possession of substances suspected to be narcotic drugs. He ordered one police to record the statement of the suspects. ASP Emmanuel

Kandora (Pw2) saw three boxes and three light blue sulphate bags in the vehicle. The boxes had paper stuck written "Mahakama Kuu ya Mkoa Babatf, E.A.C Mask Donation to Kolo Hospital Kondoa and "Evidence No. 2436 Enroute to Dodoma Supreme Court" and Evidence No. 326/09 Enroute to Dodoma Supreme Court". He counted the bundles as he was told they were 468 bundles. He verified the bundles and he added that each bundle contained fresh leaves of khat, wrapped in babana leaves and covered with newspaper. After the verification, A/Inspector Hassan Shaban Karata (Pw3) handed three boxes and three sulphate bags with a total of 468 bundles, the motor vehicle, Nissan Murano, black in colour with Diplomatic Reg. No. T. 270 CD 164 to ASP Emmanuel Kandora (Pw2) drove the suspects' vehicle to Babati and handed the exhibits to Pc Godfrey (Pwl), exhibit keeper. Pc Godfrey (Pwl) received 469 bundles of green leaves of substances suspected to be narcotic drugs ("mirungi") and a motor vehicle with Registration No. T. 270 CD 164 on 04.03.2022 from ASP. Emmanuel Kandora. The leaves were in three boxes and three sulphate bags marked police number MGG/2/242/2022. The boxes were labeled "African Court Evidence" and the other side of the box marked "Mahakama Kuu ya Mkoa Babati". Geofrey prepared a chain of custody form and entered the exhibit in the register. He labeled the exhibit by exhibit register

No. 55/2022 and kept them in the exhibit room. On 08.03.2022 Pc Godfrey (Pwl) issued the 6 exhibits to police officer No. 7877 D/CPL Amos (Pw5). Who took the said exhibit to the Government Chemist. D/CPL Amos (Pw5) filled form No. DCEA 001 which was a form to submit exhibits to the Government Chemist. He entered his name, the total number of boxes and sulphate bags and the total number of bundles. He loaded the exhibits in the motor vehicle and took them to the Government Chemist in Arusha. D/CPL Amos (Pw5) reached the Government Chemist at 02:00Pm. He reported at the reception where the receptionist led him to the Government Chemist Laboratory. He met Michael Sairorie Bernard (Pw7) a Government Chemist analyst. He handed him a letter, the form DCEA 001, three boxes and 3 sulphate bags. Michael Sairorie Bernard (Pw7) deposed that the exhibits were marked MGG/IR/242/2022. He examined the documents and compared the details in the documents and the exhibits. He entered the exhibits in the register and labeled them with number NZ 256/2022. Three boxes and three sulphate bags had a total of 469 bundles of fresh leaves suspected to be narcotic drugs. After he registered the exhibit, he weighted exhibit without the containers. The exhibit weighed 160.35kg. He took a sample from each container, that is from each box and sulphate bag. Michael Sairorie Bernard 7 (Pw7) analyzed the

substances to establish if they were narcotic drugs and the type of drug. Michael Sairorie Bernard (Pw7) prepared a sample receipt notification form, which, Michael Sairorie Bernard (Pw7) and D/CPL Amos (Pw5) signed. He gave back the exhibits to D/CPL Amos (Pw5) after taking the sample. Before he returned the exhibits to D/CPL Amos (Pw5), Michael Sairorie Bernard (Pw7) sealed the exhibits and marked with the register exhibit No. NZL 256/2022. Michael Sairorie Bernard (Pw7) took 10 grams as sample for analysis. He conducted three types of analysis; one, physical upon receipt of the exhibits; two, preliminary test, and three; confirmatory test. Michael Sairorie Bernard (Pw7) conducted two tests in the presence of D/CPL Amos (Pw5) which were the physical analysis and the preliminary test. The preliminary test revealed that the samples contained chemicals called cathine and cathenoid which are available in Cather edulis or 'khat' leaves and not in any other leaves. On 11.03.2022 Michael Sairorie Bernard (Pw7) conducted a final confirmatory test. He deposed that the final test revealed that the sample contained cathinone and cathine which are chemicals found 'khat or "mirungi" leaves. He prepared a report, which the Zone Director signed. He labeled with number NZL 256/2022 the sample and kept them in the refrigerator. Michael Sairorie Bernard (Pw7) deposed that he took the samples

according to the professional guidelines. The guidelines direct on how to take sample based on the package, physical appearance and size. The substances were fresh leaves wrapped in banana leaves. The bundles were of the same size bundles. Michael Sairorie Bernard (Pw7) added the analysis established the type of the narcotic drugs and the weight of the substances. He identified the bags and the boxes as they were marked with police number MGG/IR/242/2022 sealed with the seal of the Government Chemist and he marked them with exhibit registration number NZL/256/2022. He identified the boxes and the sulphate bags. He showed to the court the government Chemist seal on one of the boxes, the police case number and the Government Chemist registration number on the second box he pointed out Government Chemist registration number. D/CPL Amos (Pw5) deposed that he received the exhibits from the government chemist analyst returned the exhibits to Pc Godfrey (Pwl) on 28.03.2022. The exhibits were sealed with Government Chemist seal and marked also with Government Chemist exhibit registration No. NZL 256/2022. He added that the accused person and another person, the deceased were arrested on Friday and that they did not take the exhibits to Government Chemist on the Saturday or Sunday as the office of Government Chemist office does open no those days. On Monday 07.03.2022, they took the

accused person and the deceased to the Justice of Peace and confessed. On Tuesday 08.03.2022 he took the exhibits to the Government Chemist for analysis. Pc Godfrey (Pwl) deposed that he received the exhibits on the evening time from D/CPL Amos (Pw5) who had taken them to the Government chemist. The exhibits were opened and sealed with Government Chemist seal and labeled with the Government Chemist exhibits No. NZL/256/2022. Pc Godfrey (Pwl) kept the exhibits up to 10.03.2022 when he handed the exhibits to A/Insp. Hassan Shaban Karata (Pw3). Later the same day, A/Inspector Hassan Shaban Karata (Pw3) returned three empty boxes and three empty sulphate bags to Pc Godfrey (Pwl) for custody. Pc Godfrey (Pwl) identified three empty boxes and three empty sulphate bags and tendered them as exhibits. He identified them due to the colour, the boxes were 'khaki' in colour with exhibit, register number 55/2022 together with the police reference number MGG/IR/242/2022. He added that they were also marked with the Government Chemist No. NZL/256/2022. The boxes had papers struck on them written "Mahakama Kuu ya Mkoa Babati", "African Court Evidence" and "Donated to Kolo Hospital Kondoa". Three torn boxes were tendered, admitted and marked Exh. P.l. Pc Godfrey ( P w l) identified three empty sulphate bags by their light blue colour, the exhibit register No. 55/2022, the Government

Chemist register No. NZL 256/2022. Three empty sulphate bags were admitted and marked as Exh. P.2. He also tendered one black motor vehicle with registration number T. 270 CD 164 as exhibit. It was admitted and marked as Exh. P.3. A/Inspector Hassan Shaban Karata (Pw3) testified that on the 01.03.2022 he obtained the exhibits from Pc Godfrey (Pwl) and the suspects to the Babati primary court. He was acting under instructions from ASP Kandora (Pw2). The exhibits were sealed with the Government Chemist number. He appeared before Hon. Anzuruni, a magistrate working at Babati primary court. He went with inventory form, two suspects who were Salimu Twaha and Kairo. He prepared the inventory form and after the magistrate cross-checked the number of bundles, she ordered the exhibit to be destructed. She signed inventory and A/Insp. Hassan Shaban Karata (Pw3) li as well as the suspects signed the inventory and the certificate of destruction. A/Insp. Hassan Shaban Karata (Pw3) tendered a seizure certificate and the inventory form as Exhibit P.4 and P.5 respectively. He read the contents of both exhibits. He added that, after the magistrate ordered the exhibit to be destructed, they destructed 469 bundles in the presence of the two suspects Kairo and Salimu Twaha Mohamed. He prepared a certificate of destruction which Hon. Hafsa Anzuruni, the suspects, (Kairo and Salimu) signed. He tendered the certificate of destruction as Exhibit P.

6. He read the contents of the certificate of destruction. D/CPL Amos (Pw5) the investigator of this case, kept the certificate of destruction and inventory form which he identified. He tendered the DCEA 001 which had his signature and the signature of the Government Chemist. He described it as the Laboratory Submission Form DCEA 001. He added that form DCEA 001 was signed by the Government Chemist analyst who received the exhibit and it indicated number of boxes, sulphate bags and the bundles of leaves suspected to be narcotic drugs. The Laboratory Submission Form DCEA 001 was admitted as Exh. P.7. 12 D/CPL Amos (Pw5) identified the empty boxes and sulphate bags which were packed with bundles of leaves suspected to be narcotic drugs. He identified the boxes (Exhibit. P.l) as they were 'khaki' in colour marked "African Court Enroute to Dodoma Supreme Court" and "Musk donation to Kolo Hospital Kondoa" D/CPL Amos (Pw5) deposed that they charged two persons Kairo and Salim Twaha Mohamed. He deposed that Salimu Twaha Mohamed was shot dead on 28.06.2022 when he tried to escape from the court. On 07.03.2022 Hafsa Anzuruni (Pw6) while on her working place recorded the extra judicial statement of Salim Twaha Mohamed and Kairo, the accused Salimu Twaha told her that he asked a lift from Kairo. Salimu Twaha had boxes and on reaching Minjingu police check point they were arrested. After

she recorded the statement of Salimu Twaha, she recorded the statement of Kairo. She identified Kairo as the accused before the court. Kairo told her that he left Arusha going to Dodoma, when he reached Kisongo, he gave a lift to Salimu Twaha. Kairo told her that they were arrested at Minjingu. Hafsa Anzuruni (PW6) added that, she witnesseD the destruction of the exhibits on 10.03.2022. 13 After the prosecution closed its case the accused person Kairo fended himself. Kairo Nginya Sammy denied the charges and told the court that he came in Tanzania for the first time in 2019 from Kenya to work in the Kenyan Embassy. He stayed up to July, 2020. He came for a second time in Tanzania on 16.01.2022 to attend UN court sessions in Arusha. On 17.01.2022 he commenced his assignments. On 03.03.2022 Kairo (Dwl) went to Arusha Central Police station to demand his property which the court had ordered in Cr. Case No. 2018 of 2020 to be returned to him. He deposed that he was a complainant in Cr. Case No. 218 of 2020. He said he had instituted the case during his first visit. The police at Arusha central police station refused to give him his property as he was a foreigner. He was advised to go to the Ministry for Foreign Affairs in Dodoma. He was advised by one person called Anitha who promised to escort him to Dodoma. On 04.03.2022 Anitha told him that she was traveling to Dodoma. He went

and met Anitha. Anitha had two motor vehicles going to Dodoma; one, Land cruiser with registration No. T. 400 CD 140; and another vehicle with registration No. T. 400 CD 150. He boarded the Land cruise. They commenced the journey passed two number of road blocks and when they reached a third one, police stopped them. Police asked him if he was a 14 Kenyan and demanded his identification card. The police ordered the driver to go to police station. One Inspector of police told him that the Regional Crimes Officer of Arusha required him. Anitha left him at police station and proceeded to Arusha. The police seized his cellular phone, a recording camera, and his bag. Later, armed police officers and army people took him from that station to another place which he identified that it was Babati police station. He deposed that the police seized his identity card and the matching orders. He demanded them in-vain. He tendered a letter requesting the Prison Authority to assist him to recover them as Exh. D.l. He, got back his cellular phone and printed a copy of his passport, ID and the matching order. Kairo (Dwl) tendered a notice to the court to tender photocopies as Exhibit D.2. He also tendered a copy photo of the matching order with his name, his force number 941971, the passport No. 3ZF2YJ3 as Exh. D.3. He also tendered a copy of his ID, or temporary permit as Exh. D.4. He denied to

board the motor vehicle, Exh. P.2 or to have been found with three boxes and three sulphate bags. He denied to sign certificate of seizure, the inventory form, and the certificate of destruction. He denied to be the owner of the motor vehicle tendered as exhibits. 15 Having heard the evidence, it is my duty to find out whether the prosecution has established two basic elements of the offence Kairo stood charged; one, whether the accused was trafficking in narcotic drugs; and two, whether the substances suspected to be narcotic drugs were catha edulis commonly known as "khat" or "mirungi". Kairo was charged under section 15 of the DCEA provides that- "i5. -(1) Any person who- (a) trafficks in narcotic drug or psychotropic substance; (b)... (c)... commits an offence and upon conviction shall be sentenced to life imprisonment." (2)... (3) For purposes o f this section, a person commits an offence under subsection (1) if such person trafficks- (i)... (ii)... (Hi) cannabis and or khat weighing more than fifty kilogram." Were the exhibits proved to be catha edulis? To prove that the accused person is guilty of trafficking in narcotic drugs, the prosecution had a duty, among others to establish that substances suspected to be narcotic drugs were narcotic drugs; to wit catha edulis commonly known as "mirungi". The law is settled that it is the Government 16 Chemist who has the

exclusive mandate of weighing and analyzing substances suspected to be narcotic drugs. Michael Sairorie Bernard (Pw7), the government chemist analyst deposed that he, on 8.3.2022, received three boxes and three sulphate bags from E 7877 D/CPL Amos (Pw5) containing substances suspected to be narcotic drugs. According to the Laboratory Submission Form DCEA 001, he was required to analyze the substances to determine the weight, whether the substances were narcotic drugs and their category. He deposed that the substances he received apart from being in three boxes and three sulphate bags, they were sealed with a police seal and marked with police case Number MGG/IR/242/2020. He gazed at the document and exhibits submitted, and found that the exhibits corresponded to the entry in the document. He deposed that he found three boxes and three sulphate bags with 469 bundles of fresh leaves suspected to be narcotic drugs. He received and registered the exhibits and labeled them with the register number NZL 256/2022. He took the bundles out of their containers and weighed them. They measured 160.35 kilograms. He obtained a sample from each container for analysis, which weighed lOgrams in total in accordance to his professional guideline. He conducted three 17 different analyzes; one, physical analyzes upon receipt of the exhibit, two, the preliminary test procedure, and three,

confirmatory test procedure. The first two analysis were performed on the 8.3.2020 and the last one, which is the confirmatory test procedure, was conducted on 11.3.2020. After, the weighing and taking the sample, he sealed the exhibits and returned them to E 7877 D/CPL Amos (Pw5). Michael Sairorie Bernard (Pw7) deposed that the preliminary and the confirmatory tests revealed that the substances submitted for analysis contained cathinone and cathine chemicals. Those chemicals are found in Catha edulis commonly known as "mirungi" leaves only. He, thus, established the substances submitted for analysis were nothing but Catha edulis commonly as khat or "mirungi". He prepared the report, which he and the Government Chemist Laboratory Manager- Northern Zone signed. He tendered the report as exhibit P.

8. I have no doubt as to the competence of Michael Sairorie Bernard (Pw7), the government chemist analyst and the result of his analysis. The next issue of great concern, is whether he analyzed the substances seized in the motor vehicle on 4.3.2022, at Minjingu area or something else. To answer whether the substances were not tampered with or planted 18 fraudulently to make the accused guilty, I considered the chain of custody. I agree with the accused person's advocate that the chronological and sequence of the movement of the exhibit from one hand to another is the best evidence that the exhibit was not tampered with. In Wallenstein Alvares Santillan vs Rv (Criminal Appeal 68 of 2019) [2022] TZCA 516 (22 August 2022), the Court of Appeal re­ pronounced itself stated that- "It is settled that the chain o f custody must be clearly indicated to establish that the exhibits were not tampered with, (see Abuhi Omar Abdallah and Three Others v. The Republic; Criminal Appeal No. 28 o f 2010 (unreported). It is also settled that it is important to have the chronological documentation and/ or paper trail showing the seizure\ custodycontrol\ transfer, analysis and disposition o f evidence to guarantee that the said evidence relates to the alleged crime, [see Paulo Maduka and 4 Others v. The Republic, Criminal Appeal No. 110 o f 2007 (unreported)]." Indisputably, the prosecution did not

tender paper trail showing the seizure, custody, control, transfer, analysis, and disposition of evidence to guarantee that the said evidence relates to the alleged crime. The prosecution gave oral evidence supported with documentary evidence to establish that the exhibits were not tampered with. It is trite law that where 19 there is no chronological documentation or paper trail of the movement of exhibits, oral evidence on record can suffice depending on the circumstances, to prove the unbroken chain of custody. This position was taken by the Court of Appeal in Wallenstein Alvares Santillan vs R., (supra), Charo Said Kimilu and Another v R., Criminal Appeal No. 111/ 2015 (unreported) and Abas Kondo Gede v. R., Criminal Appeal No. 72/2017 (unreported). It is on record that, on 4.3.2022 A/Inspector Hassan Shaban Karata (Pw3) while at Minjingu police check point, stopped the motor vehicle T. 270 CD 164, (Exh. P. 3). During the conversation with the passenger, he felt a smell of narcotic drug. He became suspicious that the motor vehicle T. 270 CD 164, (Exh. P. 3) was conveying narcotic drugs commonly known as mirungi. He ordered the motor vehicle to be taken to Minjingu police station. He invited Mr. Godfrey Edward (Pw4), the village executive office, to witness the search. According to the evidence of A/Inspector Hassan Shaban Karata (Pw3) and Mr. Godfrey Edward (Pw4), they

searched and recovered from motor vehicle T. 270 CD 164, (Exh. P. 3) three boxes and three sulphate bags packed with a total of 469 bundles of fresh leaves. Each bundle was wrapped in banana leaves and covered with newspaper. A/Inspector Hassan Shaban Karata (Pw3) seized substances, opened the police case file MGG/IR/242/2022. A/Inspector Hassan Shaban Karata (Pw3) prepared a seizure certificate, which he [(Pw3)], Mr. Godfrey Edward (Pw4) and the two suspects signed. He marked the exhibit with the police case file No. MGG/IR/242/2022. He tendered the certificate of seizure, prepared in compliance with the provisions of section 48 of the DCEA, as exhibit P.4. I am alive of the requirement of section 36(1) of the DCEA which requires the officer seizing the substances suspected to be drugs to prepare an inventory of the said narcotic drug. The said inventory is required to have details on; description, quantity, mode of packing, marks, numbers of narcotic drugs; particulars on identification of the narcotic drugs; packing in which narcotic drugs are packed; country of origin; and other particulars relevant to the identity of the narcotic drugs. After preparing the said inventory, the officer seized the narcotic drugs is duty bound to ensure that the correctness of the inventory that and samples are certified by the magistrate. Given the information in the certificate of seizure

(exhibit P.4), the nature of the exhibits and the fact that the suspects and an independent witness signed it, I have no doubts in my mind that no miscarriage of justice 21 was occasioned by not preparing the inventory in terms of section 36(1) of the DCEA. Section 36(1) of the DCEA provides- "An officer seizing such narcotic drug, psychotropic substance; precursor chemicals or other substances proved to have drug related effects shall make an application to any magistrate having jurisdiction under this Act, for the purpose of- (a) certifying the correctness of the inventory so prepared; (b) taking, in the presence o f such magistrate» , photographs o f such drugs or substances and certifying such photographs as true; or (c) allowing to draw representative samples o f such drugs or substances, in the presence of such Magistrate and certifying the correctness o f any list o f sample so drawn." It is on record, further that after A/Inspector Hassan Shaban Karata (Pw3) seized the substances suspected to be narcotic drugs, he notified his seniors, among them was ASP Emmanuel Kandora (Pw2) of Babati Police station. ASP Emmanuel Kandora (Pw2) went to Minjingu police station and collected the exhibits and moved the suspects to Babati Police station. Before he collected the exhibits from A/Inspector Hassan Shaban Karata (Pw3), ASP Emmanuel Kandora (Pw2) crosschecked the exhibits

against the entry in the certificate of seizure. ASP Emmanuel Kandora (Pw2) and E 7877 D/CPL Amos (Pw5) took the three boxes and three sulphate bags containing 22 469 bundles of substance suspected to be narcotic drugs to Babati police station and handed them to the exhibit keeper, Pc Godfrey (Pwl). Pc Godfrey (Pwl) received the 469 bundles of fresh leaves wrapped in banana leaves and covered with papers and a motor vehicle Nissan Murano, black in colour, with Reg. No. T. 270 CD 164, (Exh. P3). According to Pc Godfrey (Pwl), 469 bundles were packed in three boxes and three sulphate bags. He entered them in the exhibit register, assigned them exhibit register number 55/2022, marked the exhibits and kept them in the exhibit room. On 8.3.2022, Pc Godfrey (Pwl) issued three boxes and three sulphate bags containing 469 bundles to E 7877 D/CPL Amos (Pw5) in the morning. E 7877 D/CPL Amos (Pw5) took three boxes and three sulphate bags containing 469 bundles, labeled with police case file MGG/IR/242/2022 and exhibit register number 55/2022 and sealed with the police seal. He prepared Laboratory Submission Form DCEA 001, (Exh. P.7). E 7877 D/CPL Amos (Pw5) went to Arusha on the same day presented three boxes and three sulphate bags containing 469 bundles, labeled with police case file MGG/IR/242/2022 and exhibit register number 55/2022, and sealed with the police seal to Michael

Sairorie Bernard (Pw7). Michael 23 Sairorie Bernard (Pw7) weighed, extracted the sample, sealed the three boxes and three sulphate bags with the Government Chemist and returned them to E 7877 D/CPL Amos (Pw5) on the very day. He conducted two tests; the one, physical analyzes upon receipt of the exhibit; and two, the preliminary test procedure; on the very day and before E 7877 D/CPL Amos (Pw5). The result of the two tests was that the substances in three bags and three sulphate bags were Catha edulis commonly known as "mirungi". Later, on 11.3.2022 Michael Sairorie Bernard (Pw7) conducted the final test, which confirmed that the substance were Catha edulis commonly known as " mirungf'. He prepared the Government Chemist report, (Exh. P.8). Given the oral and documentary chronology of events and the nature of exhibit, it is my considered opinion that the chain of custody did not break. I am alive of the fact that the substances suspected to be narcotic drugs were seized on 4.3.2022 but submitted to the Government Chemist office for analysis on 8.3.2022. E 7877 D/CPL Amos (Pw5) explained that the substances suspected to be narcotic drug were seized on Friday and that the office of the Government Chemist do not open on Saturday and Sunday. He added that on Monday 7.3.2022, being the investigator he led the suspects 24 to the Justice of Peace as they wanted to confess. I do not

suspect that the delay was intended to tamper with the exhibit. In addition, it is on record that all witnesses identified the exhibits by their package, that is, the substances were 469 bundles of fresh leaves wrapped in banana leaves and covered with newspapers. The bundles were packed in three boxes and three sulphate bags, which A/Inspector Hassan Shaban Karata (Pw3), the seizing officer labeled with police case file MGG/IR/242/2022. Later, Pc Godfrey (Pwl), the exhibit keeper, added another label which was the exhibit register number 55/2022 and sealed them with the police seal. Michael Sairorie Bernard (Pw7), on receipt of the three boxes and three sulphate bags containing 469 bundles, labeled them with the register number NZL 256/2022 and sealed them. All the witnesses identified the boxes by the papers stuck on them. The boxes had paper stuck on them with the words "Mahakama Kuu ya Mkoa Babatf', E.A.C Mask Donation to Kolo Hospital Kondoa and "Evidence No. 2436 Enroute to Dodoma Supreme Court" and Evidence No. 326/09 Enroute to Dodoma Supreme Court". Even though the three empty boxes tendered as Exh. P.l were worn out due to poor storage and opening and closing several times, the witnesses could still reveal the stickers and the writings to the Court. 25 I find that the chain of custody was not broken, the oral evidence from seizure, custody, control, transfer to

analysis conducted by Michael Sairorie Bernard (Pw7) guarantees that the substances suspected to be narcotic drugs relate to the alleged crime. Thus, I answer the first issue that the prosecution proved beyond reasonable doubt that the substances suspected to be narcotic drugs were Catha edu/iscommonly known as khat or "mirungi" and relate to the alleged crime. Was the accused trafficking in narcotic drugs that is Catha edulis? Having determined that the substances suspected to be narcotic drugs, conveyed in Reg. No. T. 270 CD 164, (Exh. P3), weighing 160.35 kg were Catha edulis commonly known as khat or "mirungi", the remaining question is whether the accused person was trafficking. I wish to commence by stating the obvious, that the offence of trafficking is committed in relation to khat or "mirungi'' when a person imports, exports:, buys, sells; gives, supplies, stores, possesses, produces, manufactures, conveys, delivers, or distributes without licence.... weighing more than fifty kilogram. [See section 3 of the DCEA]. In the present case, the prosecution's evidence established beyond reasonable doubt that two suspects were found conveying in Reg. No. T. 270 CD 164, (Exh. P3), Catha edulis commonly known as khat or "mirungi" weighing 160.35 kg. Thus, the prosecution proved that the suspects committed the offence of trafficking in Catha edulis commonly known as khat or

"mirungi"" weighing 160.35 kg, the issue is the whether Kairo Nginya Sammry@ Kerio Nginya Sammy, the accused person was one of the suspects. Kairo Nginya Sammry@ Kerio Nginya Sammy denied on oath to convey the three boxes and three sulphate bags in the motor vehicle with Reg. No. T. 270 CD 164, (Exh. P3). He strongly refuted to have been a passenger in or a driver of the motor vehicle with Reg. No. T. 270 CD 164, (Exh. P3) where containing substances identified as Catha edulis commonly known as khat or "mirungi"were being conveyed. In addition, Kairo Nginya Sammry@ Kerio Nginya Sammy negated the prosecution's evidence that he signed the certificate of seizure (Exh. P.4), inventory form (Exh. P.5), and the certificate of destruction, (Exh. P.6) together with Salim Twaha Mohamed. Kairo Nginya Sammry@ Kerio Nginya Sammy does not negate the prosecution's evidence that he 27 was arrested on 4.3.2022 at a third police road block and transferred to Babati police station. He deposed that he was arrested while going to Dodoma to complain against the Regional Crimes Officer of Arusha who had refused to return his property. He deposed that the court had ordered the police to return property tendered in a case which he was complainant. He mentioned the case as criminal Case No. 218/2020. As the police refused to return his property he was advised to go to Police headquarters in Dodoma and

visit also the Ministry for Foreign Affairs also to seek assist. His arrest was move by the Regional Crimes Officer of Arusha to frustrate his efforts to recover his property. I considered the prosecution's account as to the accused person arrest and the accused person's account as to his arrest, to say the least, I was not persuaded that the accused person was arrested to frustrate his move to claim his property. The prosecution proved through the evidence of A/Inspector Hassan Shaban Karata (Pw3), the arresting officer, that, the accused person was a passenger in the motor vehicle with Reg. No. T. 270 CD 164, (Exh. P3). After, A/Inspector Hassan Shaban Karata (Pw3), stopped the motor vehicle with Reg. No. T. 270 CD 164, (Exh. P3) and introduced himself, Kairo Nginya Sammry@ Kerio Nginya Sammy who was the 28 passenger introduced himself as a member of INTERPOL and presented his identity Card. Mr. Godfrey Edward (Pw4), the village executive officer, an independent witness corroborated the evidence of A/Inspector Hassan Shaban Karata (Pw3) that the accused person and another person called Twaha were owners of the motor vehicle. They opened the motor vehicle's boot, took out three boxes and three sulphate bags, and counted the bundles, which were packed in the boxes and sulphate bags. He supported A/Inspector Hassan Shaban Karata (Pw3)'s evidence that Kairo, the accused person

and Twaha signed the document (seizure certificate) and endorsed their thumb prints. In addition, Godfrey Edward (Pw4) identified the document they signed as seizure certificate (Exh. P.4). He identified his name, signature and the name and signature of the name of OCS Karata, Kairo, the accused person and Twaha, the accused person's co-suspect. I have no reason to discredit the evidence of Godfrey Edward (Pw4). He had no interest to save. I am of the firm view that Kairo, the accused person signed the seizure certificate, hence, he acknowledged being in possession of narcotic drug, to wit; catha edu/is commonly known as khat or "mirungi". It is settled, as 29 submitted by the prosecuting state attorney, that, signing of the certificate of seizure by an accused person meant acceptance that the items alleged to be found in his possession were actually found in his possession. The Court of Appeal in Song Lei v. D.P.P., Criminal Appeal No. 16A of 2016 and No. 16 of 2017 (unreported), observed that- "... the signing o f the certificate o f seizure by the appellant meant acceptance that the narcotic drugs were found in his possession." Kairo denied to sign the inventory form (Exh. P.5) and the certificate of destruction, (Exh. P.6). The prosecution adduced evidence from A/Inspector Hassan Shaban Karata (Pw3, E 7877 D/CPL Amos (Pw5) and the magistrate Hafsa Anzuruni (Pw6) that Kairo

and Twaha Mohamed signed inventory form (Exh. P.5) and the certificate of destruction, (Exh. P.6). HafsaAnzuruni (Pw6) is the magistrate who witnessed inventory form (Exh. P.5) and destruction of the 469 bundles which were packed in the three boxes and three sulphate bags. She also deposed that she recorded the statement of Twaha Mohamed, the deceased and Kairo the accused. I have no ground to discredit Hafsa Anzuruni (Pw6)'s evidence. It is trite law that, all witnesses' evidence is entitled to credence and belief unless there are good and cogent reasons to disbelieve a witness as the Court of Appeal held in Goodluck Kyando v. R [2006] TLR 363. The cogent reasons 30 to disbelieve a witness's evidence may include where the evidence is improbable or implausible, or where it has been materially contradicted by evidence of the other witness of same party or where the witness is inconsistent. The prosecution's evidence was strong probable and plausible compared with the accused person's evidence, which I find to be too weak to raise a reasonable doubt. I took time to consider whether there was strong evidence to connect Kairo Nginya Sammry@ Kerio Nginya Sammy, with the offence of trafficking. A/Inspector Hassan Shaban Karata (Pw3)'s evidence was that Kairo Nginya Sammry@ Kerio Nginya Sammy, the accused person, was a passenger in whereas Salim Twaha Mohamed, the deceased, was a

driver of the motor vehicle with Reg. No. T. 270 CD 164, (Exh. P3) at the time of arrest. The defence advocate submitted strongly that there was no evidence to link his client with the commission of the offence. He contended that E.7877 D/CPL Amos (Pw5), the investigator did not establish that the motor vehicle with Reg. No. T. 270 CD 164, (Exh. P3) belonged Kairo or that there was a connection with his co-accused or the narcotic drug. As stated above there is enough evidence to establish that was Kairo Nginya Sammry@ Kerio Nginya Sammy, was a passenger in the motor 31 vehicle with Reg. No. T. 270 CD 164, (Exh. P3). Kairo Nginya Sammry@ Kerio Nginya Sammy denied to be associated with the motor vehicle with Reg. No. T. 270 CD 164, (Exh. P3). Had Kairo Nginya Sammry@ Kerio Nginya Sammy been an innocent passenger why extricate with the motor vehicle with Reg. No. T. 270 CD 164, (Exh. P3). Kairo Nginya Sammry@ Kerio Nginya Sammy's denial of proved fact that he was a passenger in the motor vehicle with Reg. No. T. 270 CD 164 is inconsistent with an innocent passenger. The fact that he introduced himself as an officer of INTERPOL, which he was not, he was intended to conceal is identity and obtain favour as diplomat to convey or to assist his co-accused person to convey narcotic drug. Section 24 of the Drug Control Enforcement Act, regards a person who conspires, aids, conceals,

abets, or conceals or directly or indirectly concerns with the commission of the offence under the Act as a principal offender. Kairo Nginya Sammry@ Kerio Nginya Sammy's act to introduce himself as INTERPOL officer aboard a motor vehicle with diplomatic registration number was intended to aid the process of conveying narcotic drugs. He is for that reason a principal offender. 32 I find that the prosecution proved that, Kairo Nginya Sammry@ Kerio Nginya Sammy, the accused person, and Twaha Mohamed, the deceased conveyed in the motor vehicle with Reg. No. T. 270 CD 164, (Exh. P3) three boxes and three sulphate bags of Catha edulis commonly known as khat or "mirungi" weighing 160.35 kg. Thus, they were trafficking in "khat" The second issue is answered positively. In the end, I find Kairo, the accused person guilty and convict him with the offence of trafficking in narcotic drugs contrary to section 15 (1) (a) and (3) (iii) of the Drug Control Enforcement Act, [Cap. 95, R.E. 2019]. DATED at Babati this day of 9th February, 2024. Judge Ms. Kayumbo. SA: Your Lordship, we do not have the accused person's previous record of conviction. We pray the court to consider the negative impact of the narcotic drugs to the society, especially the younger generation. I pray the court to consider ill motive of the accused person who came from his motherland to deal in narcotic drugs in foreign country. I pray for a stiff sentence to the accused person. 33 Mr. Mlingi Adv: Your Lordship, the law has no sentence other than life sentence. The accused person is a foreigner, as he is a citizen of Kenya, who believes he is innocent. Since the law provides a minimum sentence, I will make no more mitigation.

SENTENCE The accused person is sentenced to serve the mandatory sentence of life imprisonment for offence of trafficking in narcotic drugs, to wit; cath edulis contrary to section 15 (1) (a) and (3) (iii) of the Drug Control Enforcement Act, [Cap. 95, R.E. 2019] read together with paragraphs 23 of the First Schedule to, and section 57(1) and 60 (2) of the Economic and Organized Crime Control Act, [Cap. 200, R.E. 2019 (now R.E. 2022)]. Judge 9/02/2024 Court: I intend to make forfeiture orders of the Exh. P3, the motor vehicle. May invite you to address me on that. Ms. Kayumbo. SA: Your Lordship, since the accused has been convicted, we pray under section 351 (1) (a) of the CPA [Cap. 20 R.E. 2022] read together with section 49(1)(2) ( a) of the of the Drug Control Enforcement Act, [Cap. 95, R.E. 2019], that Exh. P.3, the motor vehicle with Reg. No. T. 34 270 CD 164, used to facilitate the commission of offence be forfeited to the government of Tanzania. Mr. Mlingi Adv: Your Lordship, the accused disowned the motor vehicle from the first day so we have no objection to the prayer made by the prosecution. Court: The motor vehicle exhibit P. 3 with Reg. No. T. 270 CD 164 is forfeited to the government unless an application is filed a person claiming to be owner in terms of section 49A of the Drug Control Enforcement Act, [Cap. 95, R.E. 2019] or the Proceeds of Crime Act, [Cap.256 R.E. 2022]. Court: Judgement delivered in the presence of the accused person and his advocate and Ms. Kayumbo, State Attorney for the Republic. Right of appeal explained. B/C Ms. Fatina (RMA) present. Judge 9/02/2024 35