FL 127 Subordinate Court Practice Manual 2023 - MD, Mendez

Ofmedy Mussa Mtenga – LLB (UDSM), L.L.
M Unicri & Unito - Torino (Italy)
STAGES OF A CRIMINAL CASE IN SUBORDINATE COURTS

i
Ofmedy Mussa Mtenga – LLB (UDSM), L.L.M Unicri & Unito - Torino (Italy)
ii STAGES OF A CRIMINAL CASE IN SUBORDINATE COURTS

STAGES OF A CRIMINAL CASE

IN SUBORDINATE COURTS
Ofmedy Mussa Mtenga

LLB UDSM, LLM UNICRI&UNIVERSITY OF
TORINO
Published by Kifii Blacksmith,

Website: www.sheriabooks.com
Email: kifiisheria@gmail.com,
Phones: +255 787 95 27 73
+255 767 15 41 41
ISBN 978-9976-5478-0-1
Copyright ©Ofmedy Mussa Mtenga, 2023
All rights reserved. No part of this publication may be

reproduced, stored in a retrieval system or transmitted in
any form or by any means, electronic, mechanical,
photocopying, recording or otherwise, without the prior
permission of Kifii Blacksmith or Ofmedy Mussa Mtenga.

iii
FOREWORDS
FOREWORDS
This manual is intended to assist criminal law

practitioners, be it defence counsels, State Attorneys,
Public Prosecutors, Honorable Judges & Magistrates, law
enforcement officers and students, to understand or adhere
to procedures required in criminal trials, and to quickly
address problems and issues commonly arising during
those processes. The manual has included a good number
of current Court of Appeal precedents to update the reader
on the current applicable legal positions. It is my hope that
this manual will produce fruitful results in the criminal
justice system.
iv STAGES OF A CRIMINAL CASE IN SUBORDINATE COURTS

ACKNOWLEDGEMENTS
ACKNOWLEDGEMENTS
I first and foremost give thanks to the Almighty God, the

creator of heaven and earth, the Savior of the world, “in
him my life is anchored and in him alone, there’s no
failure!”
Other special thanks are conveyed to my caring, loving,
and supportive wife, Hilda John and our children; my
deepest gratitude. It was a great comfort and relief to know
that you were willing to provide management of our
household activities while I was preparing this work. My
apology to you and our children for taking away the time
you should have benefited out of me. My heartfelt thanks.

v
Table
TABLE OFOfCONTENTS
Contents
FOREWORDS ............................................................. 2
ACKNOWLEDGEMENTS ........................................ 3
TABLE OF CONTENTS ........................................... 4
PART 1 ....................................................................... 15
PRE-TRIAL STAGE ................................................. 15

1.1 Crime reporting ................................................................ 15
3.1 Arrest ................................................................................ 16
3.2 Persons with power to arrest ............................................ 16
3.3 Interviewing suspects ...................................................... 17
3.4 Search and Seizure ........................................................... 18

1.1.1 Search in the ordinary course ..............................................18
1.1.2 Issuance of receipt during seizure ......................................20
1.1.3 Emergency Search ................................................................21
1.1.4 Independent Witness during search ...................................22
PART 2....................................................................... 23
DPP’S POWER AND DECISION TO CHARGE ... 23

2.1 Power to Prosecute Criminal Cases ................................. 23
2.2 Independence of the DPP ................................................ 24
2.3 The DPP’s decision to charge ......................................... 25
vi STAGES OF A CRIMINAL CASE IN SUBORDINATE COURTS

PART 3....................................................................... 26
“A CHARGE” ............................................................ 26
3.1 Meaning of a “charge” ..................................................... 26
3.2 Alternative charge ............................................................ 26
3.3 Contents of a charge ........................................................ 27
3.4 Mode of framing a charge ................................................ 27
3.5 Alteration of a charge ....................................................... 29
3.6 Plea on an altered charge (essentials).............................. 30
3.7 Defective charge .............................................................. 31
3.8 Remedies for a defective charge ...................................... 32
3.9 What makes a charge Defective ....................................... 33

3.9.1 Duplicity .................................................................................33
3.9.2 Essence of the rule against duplicity ..................................35
3.9.3 Wrong or non-existing provision .......................................36
3.9.4 Statement of Offence which is not specific ......................36
3.9.5 Incriminating &punishing sections ....................................37
3.9.6 Lack of eessential elements in particulars .........................38
3.9.7 Failure to indicate place of commission ............................39
3.9.8 Variance between date & evidence ....................................39
3.9.9 Element of threat in armed robbery ..................................40
3.9.10 Ingredients of offence vs evidence ....................................41
3.9.11 Charging on a repealed law .................................................41
3.9.12 Conspiracy together with actual offences .........................42
3.9.13 Charge with improper jurisdiction .....................................42
PART 4....................................................................... 43
ACCUSED’S PLEA ................................................... 43
4.1 Meaning of a plea ............................................................. 43

vii
4.2 Essentials of a proper plea ............................................... 43

4.2.1 Accused must understand the charge ................................43
4.2.2 Accused be present physically .............................................44
4.2.3 Assignment of an interpreter ..............................................45
4.2.4 Duty to procure interpreters ...............................................45
4.2.5 Manner of interpreter’s oath ...............................................46
4.3 Manner of recording a Plea.............................................. 46
4.4 Steps when accused pleads guilty .................................... 47
4.5 Categories of Plea ............................................................ 48

4.5.1 Unequivocal plea of guilty ...................................................49
4.5.2 Equivocal plea of guilty........................................................52
4.5.3 Plea of not guilty ...................................................................53
4.5.4 Plea of guilty by co-accused ................................................54
4.5.5 Plea in a charge with several counts ...................................55
4.6 The impact of an own plea of guilty ................................ 55
4.7 Pleas of “autrefois acquit” ............................................... 57
4.8 Pleas of “autrefois convict”.............................................. 57
4.9 Doctrine of issue estoppel................................................ 58
4.10 Plea of Presidential Pardon .............................................. 59
4.11 Change of plea ................................................................. 60
4.12 Plea as a bar to lack of jurisdiction .................................. 61
4.13 Plea Bargaining ................................................................ 62

4.13.1 Initiating a Plea Bargaining ..................................................63
4.13.2 Who may initiate a Plea Bargaining? ..................................63
4.13.3 Registration of a plea agreement ........................................63
4.13.4 Termination of plea Bargaining agreement.......................64
4.13.5 Accused’s right to legal Representation .............................65
viii STAGES OF A CRIMINAL CASE IN SUBORDINATE COURTS

PART 5 ....................................................................... 66
BAIL........................................................................... 66
5.1 Meaning of Bail ................................................................ 66

5.2 Purpose of Bail ................................................................. 66
5.3 Circumstances where bail is restricted ............................ 68
5.4 Conditions of Bail ............................................................ 70
5.5 Change of circumstance after bail ................................... 71
5.6 Power to vary bail conditions ........................................... 72
5.7 Consequences of breach of bail conditions ..................... 72
5.8 Discharge of surelties....................................................... 73
5.9 Forfeiture of Recognizance .............................................. 73
5.10 Remedy when the court refuses to grant Bail .................. 75
5.11 Bail pending appeal ......................................................... 75
5.12 Bindign Over .................................................................... 77
5.13 Adjournments cases ......................................................... 78
PART 6....................................................................... 80
PRELIMINARY HEARING (PH) ........................... 80

6.1 Meaning of preliminary hearing ...................................... 80
6.2 The purpose of preliminary hearing ................................ 81
6.3 Status of undisputed facts and exhibits during ph .......... 81
6.4 Procedures of Preliminary Hearing ................................. 82

ix
6.5 Omission to conduct Ph .................................................. 83
6.6 Listing witnesses and exhibits during ph ........................ 83
6.7 Disclosure of Prosecution case ........................................ 83
6.8 Disclosures in the Juvenile Court .................................... 84
PART 7....................................................................... 86
HEARING STAGE ................................................... 86

7.1 Appearance of parties ...................................................... 86
7.2 None appearance of the complainant.............................. 87
7.3 None appearance of accused person ............................... 87
7.4 Case for the Prosecution .................................................. 89
7.5 Competence of witness to testify ..................................... 89
7.6 Dumb Witnesses .............................................................. 89
7.7 Compellability of witnesses ............................................. 90
7.8 Number and discretion to call witnesses ........................ 91
7.9 Evidence of single witness ............................................... 92
7.10 Witnesses are entitled to credence ................................... 92
7.11 Witness’s oath/affirmation .............................................. 92
7.12 Evidence of a child of tender age .................................... 93
7.13 Refractory witness ............................................................ 94
7.14 Hostile Witnesses ............................................................. 94
x STAGES OF A CRIMINAL CASE IN SUBORDINATE COURTS

7.15 Procedure for declaring a witness hostile ........................ 95
7.16 Refreshing memory of a witness ...................................... 96
7.17 Manner of recording Evidence ........................................ 97
7.18 Compliance of Section 210(3) of CPA .............................. 97
7.19 Authentication of proceedings ......................................... 97
7.20 Examination of Witnesses ............................................... 98

7.20.1 Presence of co-witness during testimony ..........................98
7.20.2 Examination in chief ............................................................98
7.20.3 Cross-examination ................................................................99
7.20.4 Failure to cross-examine important Matters .....................99
7.20.5 Re-examination................................................................... 100
7.20.6 Raising new fact in Re-examination ................................ 100
7.20.7 Questions by the Court ..................................................... 101
7.21 Statements of witnesses who cannot be called ............... 101
PART 8...................................................................... 103
CLOSE OF PROSECUTION CASE .......................103

8.1 Introduction ................................................................... 103
8.2 Magistrate cannot close the case ................................... 103
8.3 Ruling of a case to answer ............................................. 103
PART 9 ...................................................................... 105
CASE FOR THE DEFENCE ..................................105

9.1 Opportunity to present his defence ............................... 105
9.2 General denial which casts no doubts ........................... 105

xi
9.3 Failure to enter defence ................................................. 105
9.4 Lies of an accused person in defence ............................ 106
9.5 Accused to declare his case closed ................................ 107
PART 10 .................................................................... 108
JUDGMENT ............................................................108
10.1 Meaning and criteria of a judgment .............................. 108
10.2 Considering Prosecution & Defence cases .................... 110
10.3 Extraneous matters in the judgement ............................ 112
10.4 Weighing contradictions of witnesses ............................ 113
10.5 Recording of a conviction ............................................... 114
10.6 Conviction in alternative counts ..................................... 115
10.7 Conviction in cognate offences ....................................... 116
PART 11 .................................................................... 118
SENTENCING ........................................................ 118

11.1 Introduction .................................................................... 118
11.2 Mandatory and discretionary sentences ......................... 118
11.3 Aggravating and mitigating factors ................................ 119

11.3.1 Examples of aggravating factors...................................... 120
11.3.2 Examples of Mitigating factors ........................................ 120
11.4 Sentencing in Absentia ................................................... 121
11.5 Excessive or Inadequate Sentence ................................ 122
xii STAGES OF A CRIMINAL CASE IN SUBORDINATE COURTS

11.6 Types of Sentences......................................................... 122
11.7 Consecutive vs Concurrent sentences ........................... 123
11.8 Time Spent in remand before imposing sentence ......... 123
11.9 Appellate court interfering with sentences .................... 124
11.10 Forfeiture of property during sentencing ..................... 125
PART 12 .................................................................... 126
ADMISSIBILITY OF EVIDENCE .........................127

12.1 Introduction ................................................................... 127
12.2 Test for admissibility of an exhibit ................................ 127
12.3 Who is a competent witness to testify? .......................... 128
12.4 Evidence of a child of tender age .................................. 128
12.5 Witnesses who can tender exhibits ................................ 129
12.6 Expert Evidence............................................................. 130

12.6.1 Who is an expert?............................................................... 130
12.6.2 Meaning of expert evidence ............................................. 130
12.6.3 Required Qualities of expert evidence ............................ 131
12.6.4 Value of expert evidence (opinion) ................................. 133
12.6.5 Fingerprint evidence .......................................................... 136
12.6.6 Handwritings and Signatures ........................................... 138
12.6.7 Medical Expert Opinions ................................................. 140
12.6.8 Human DNA evidence ..................................................... 142
12.6.9 DNA evidence in rape cases ............................................ 142
12.6.10 Ballistic Expert Evidence............................................. 143
12.7 Documentary Evidence ................................................. 143

12.7.1 Primary Evidence ............................................................... 144
12.7.2 Secondary Evidence .......................................................... 145
12.8 Tendering of Exhibits .................................................... 146

xiii
12.8.1 Who may Tender Exhibits? .............................................. 147

12.8.2 Prosecutor cannot tender Exhibits ................................. 148
12.8.3 Clearing and right to comment ........................................ 149
12.8.4 Reading document after admission ................................. 150
12.8.5 Description of the exhibit before tendering .................. 151
12.8.6 Admitting items for (ID) purposes ................................. 152
12.8.7 Procedure for tendering exhibits ..................................... 152
12.9 Chain of Custody............................................................ 154

12.9.1 Meaning of chain of custody ............................................ 154
12.9.2 General principle ................................................................ 154
12.9.3 Rationale behind chain of custody .................................. 155
12.9.4 When to challenge chain of custody? ............................. 156
12.9.5 Exceptions in chain of custody........................................ 156
12.10 Electronic Evidence................................................... 157

12.10.1 Meaning of electronic evidence .................................. 157
12.10.2 Admissibility of electronic evidence .......................... 158
12.10.3 Admissibility of Banker’s Book .................................. 158
PART 13 .................................................................... 160
CONFESSION STATEMENT ...............................160

13.1 Meaning of confession ................................................... 160
13.2 What constitutes a confession? ....................................... 161
13.3 Things to note when dealing with confessions .............. 161
13.4 Exculpatory statements in Confessions ......................... 162
13.5 Confession leading to discovery .................................... 163
13.6 Confession implicating co-accused ............................... 164
13.7 Confession under s.29 of TEA ....................................... 165
13.8 Guiding principles in confessions ................................. 166
13.9 Retracted or Repudiated Confession ............................. 168
xiv STAGES OF A CRIMINAL CASE IN SUBORDINATE COURTS

PART 14 .................................................................... 170
TYPES OF CONFESSIONS ...................................170

14.1 Introduction ................................................................... 170
14.1.1 Oral confession .................................................................. 170
14.1.2 Cautioned statement .......................................................... 171
14.1.2.1 Recording statement before several officers ............ 172
14.1.2.2 Four hours rule.............................................................. 172
14.1.2.3 Suspect’s rights during interrogation ......................... 174
14.1.2.4 Certification at the end of the statement................... 174
14.1.2.5 Right to comment statements ..................................... 175
14.1.2.6 Reading statements after admission ........................... 175
14.1.3 Extra-judicial statement .................................................... 176
14.1.3.1 Procedure in extra-judicial statements ....................... 176
14.1.3.2 Voluntariness in extrajudicial statements .................. 177
14.1.3.3 Reading the statement after recording ....................... 177
14.1.3.4 Essential aspects when recording ............................... 178
14.1.3.5 Persons who sent the suspects to the JP ................... 179
14.1.3.6 Time of recording extrajudicial statements ............... 179
14.1.4 Inquiry (trial within trial)................................................... 180
14.1.4.1 Meaning of inquiry........................................................ 180
14.1.4.2 Procedure for conducting inquiry .............................. 181
PART 15 .................................................................... 184
MISCELLANEOUS MATTERS ............................184

15.1 Failure to call a necessary/material witness.................. 184
15.2 Conviction without evidence of the victim .................... 185
15.3 Magistrate taking over a case partly heard .................... 185
15.4 Evidence of relative or friend ......................................... 186
15.5 Accomplice witness........................................................ 187
15.6 Evidence of Police Officers............................................ 189

xv
15.7 Number of witnesses to prove a fact ............................. 190
15.8 Doctrine of common intention ...................................... 190
15.9 Doctrine of recent possession ......................................... 191
15.10 Circumstantial evidence ............................................ 193
15.11 Test for circumstantial evidence ............................... 194
15.12 Identification Evidence ............................................. 196

15.12.1 Visual Identification Evidence .................................... 196
15.12.1.1 Admissibility of visual identification ..................... 197
15.12.1.2 Checklist for visual identification .......................... 197
15.12.2 Dock Identification Evidence ..................................... 200
15.12.3 Legal position of dock identification ......................... 200
15.12.4 Identification by Recognition ..................................... 202
15.12.5 Position of law in identification by recognition ....... 202
15.12.6 Voice Identification ...................................................... 202
15.12.7 Position of law in voice ID ......................................... 203
15.12.8 Forensic Identification ................................................. 203
15.12.8.1 Identification by Fingerprints ................................ 204
15.12.8.2 Identification by Handwriting or Signature ......... 206
15.12.8.3 Ballistic identification Evidence ............................ 208
15.12.8.4 Human DNA identification evidence................... 209
15.12.8.5 Identification Parade ............................................... 210
xvi STAGES OF A CRIMINAL CASE IN SUBORDINATE COURTS

PART 1
PRE-TRIAL
PRE-TRIAL STAGE
PRE-TRIALSTAGE
STAGE
1.0 Crime reporting
1.0 Crime reporting
Usually, a criminal case begins when a criminal allegation
Usually,
reaches thea criminal
hands case
of the begins when
Police (ora other
criminal allegation
investigative
reaches the hands of
organs designated by the
law Police
with (or
the other
powerinvestigative
of Police
organs
Officers). As soon as a crime reaches power
designated by law with the of Police
to the Police, its
Officers). As soon as a crime reaches
information is recorded into a report book and to the Police, its
information
investigation is recorded
begins into Investigation
forthwith. a report book and
comprises
investigation begins forthwith. Investigation comprises
issues such as arrest, search, seizure, gathering of evidences,
issues such aswitnesses
identifying arrest, search,
and seizure, gathering
recording their ofstatements,
evidences,
identifying witnesses and recording their statements,
interrogation and recording suspects’ statements, scientific
interrogation andand
analysis/opinion recording suspects’matters.
other necessary statements,
1 scientific
1
analysis/opinion and other necessary matters.
An allegation may reach the Police or such other
An allegation
investigative may
organs reachthethe
through Police ways;
following or such other
investigative organs through the following ways;
(i) When a complainant or any other person reports it to
(i) When a complainant
the Police. or any other
The law requires everyperson
personreports
who isit or
to
the Police. The law requires every person who
becomes aware of the intention or commission of an is or
becomes aware of the
offence punishable intention
under or commission
the Penal of an
Code, to forward
offence punishabletounder
such information the Penal
the police or toCode, to forward
a person with
such information to the police or to a person
authority in the locality, who shall convey such with
authority in the locality, who shall
information to the nearest Police station.2 2convey such
information to the nearest Police station.
(ii) When the Police suo mottu initiate a criminal case,
(ii) When the Police
particularly whensuothemottu initiatecame
offence a criminal
into case,
their
knowledge through intelligence sources orinto
particularly when the offence came whentheir
the
knowledge through intelligence sources
crime was committed in their presence. or when the
crime was committed in their presence.
1 Police General Orders No.311 R.E 2021

12Police General
See section Orders
7(1)(a) No.311
of the R.EProcedure
Criminal 2021 Act [Cap.20 R.E 2022]
2 See section 7(1)(a) of the Criminal Procedure Act [Cap.20 R.E 2022]

1
(iii) When the DPP initiates investigation. Pursuant to

section 16(2) of the National Prosecutions Act Cap.430, in
exercise of powers, the DPP may require any authority
mandated with investigative functions to investigate
any criminal allegations that have come to his
knowledge and furnish him with a report on the result
of such investigation.
1.1 Arrest
During the arrest, the arresting officer is required by law, at

the time of the arrest, to inform the suspect the offence of
which he is being arrested, unless the circumstances during
the arrest fall under section 23 (3) of the CPA.3
Arrests may be conducted with warrant pursuant to section

13 of the CPA or without warrant pursuant to sections 14, 16,
17, 18 and 28 of the CPA.
1.2 Persons with power to arrest
It is not only the police who have the power to arrest

suspects. The law empowers the following people to arrest
suspects. They include;
(i) Police officers per section 13 and 14(1) of the CPA,
(ii) Magistrates pursuant to section 17 &18 of the CPA,
(iii) Private persons pursuant to section 31(1) of the CPA.

Case laws have also established that private persons
have power to arrest suspects and submit them either
to the lawful authority or to the nearest police station.4
Section 23(1) of the Criminal Procedure Act, and P.G.O 236 para 9
3
4Grace Charles Omary vs Republic, Criminal Appeal No 13 of 2020(HC
Musoma Unreported)
2 STAGES OF A CRIMINAL CASE IN SUBORDINATE COURTS

1.3 Interviewing suspects
As soon as the suspect is under the restraint of the Police,

he may be interviewed in respect of the allegation
connected to him. The police officer may ask him questions
or take other investigative actions in connection with the
investigation during a period available for interviewing such
person but not otherwise.5
The basic period to interview the suspect is four (4) hours

commencing from the time the suspect was taken under
restraint of the police or if it is extended pursuant to section
51 of the CPA, such basic period as so extended.6
In calculating such period, it is not reckoned as part of that

period any time while the police officer investigating the
offence refrains from interviewing the suspect or causing
him to do any act connected with the investigation under
the following circumstances:-7
(a) While the suspect, after beign taken under restraint, is

being conveyed to a police stateion or other places for
any purpose connected with the investigation,
(b) For the purpose of:-
5 Section 48 of the CPA

6 Section 50(1)(a) of the CPA
7 Ngasa Sita Mabundu vs Republic, Criminal Appeal No.254 of 2017 CAT
Shinyanga (unreported), Anold Loishie @ Leshai vs Republic, Criminal Appeal
No.249 of 2017 CAT Arusha (unreported), Aliyu Dauda Hassan and others vs
Republic, Criminal Appeal No.282 of 2019 CAT Bukoba (unreported), Roland
Thomas@ Mwangamba vs Republic, Criminal Appeal No. 308 of 2007 CAT
Arusha (unreported)., Ramadhani Mashaka vs. Republic, Criminal Appeal No.
311 of 2015 CAT Tabora(unreported), Yusufu Masalu@Jiduvi& 3 others vs
Republic, Criminal Appeal No 163 of 2017 CAT Dodoma (unreported),
Michael Mgowole and Shadrack Mgowole vs Republic, Criminal Appeal No 205
of 2017 CAT Iringa (unreported), Msafiri Jumanne &2 others vs Republic,
Criminal Appeal No. 187 of 2006 CAT Mwanza (unreported).

3
(i) Enabling the suspect to arrange or attempt to

arrange, for the attendance of a lawyer,
(ii) Enabling the police officer to communicate or

attempt to communicate with any person whom
the suspect is required by section 54 of the CPA to
communicate in connection with the investigation
of the offence,
(iii) Enabling the person to communicate, or attempt

to communicate, with any person with whom he
is, under the CPA, entitled to communicate,
(iv) Arranging or attempting to arrange, for the

attendance of a person who, under the CPA is
required to be present during an interview with
the person under restraint or while the suspect is
doing an act in connection with the investigation.
(c) While awaiting the arrival of a person referred to in

subparagraph (iv) of paragraph (b) of section 50(2) of the
CPA or while the suspect is consulting with a lawyer.
1.4 Search and Seizure
The CPA recognizes two types of searche; namely, search

in the ordinary course, and search by emergence. Search in
the ordinary course is empowered by section 38, while that
by emergency is under section 42 both of the CPA.8
1.4.1 Search in the ordinary course
8 Ayubu Mfaume Kiboko and another v Republic, Criminal Appeal No.694 of

2020 CAT DSM (unreported)

This category is governed by section 38 of the CPA and is

restricted to a formal search. Search in the ordinary course
is lawful if it falls under the following circumstances:9
(1) If it is conducted by a Police Officer Incharge of a

Police station (in person), or
(2) If it is conducted by another Police Officer who has

been issued with a search warrant by a police officer in
charge of a police station with an authority to do so,
(3) If it is conducted by virtue of a search warrant issued

by the court in terms of the PGO 226.10
(4) In addition to the formal procedures above, certificate

of seizure will be lawful if; 11
(a) There was a search warrant (if the office is not

the Police officer incharge of a police station)
(b) The owner of the premise or occupier or his

near relative is present during search,
(c) Independent witness is present,
(d) At the end, a receipt has been issued

acknowledging seizure of property,
The rationale for this restriction as stated in Ayubu

Mfaume Kiboko and other cases includes the followings:-12
9 Ayubu Mfaume Kiboko (supra),Badiru Musa Hanogi vs Republic, Criminal

Appeal No.118 of 2020 CAT Mtwara (unreported),DPP vs Doreen John
Mlemba, Criminal Appeal No.359 of 2019 CAT DSM (unreported).
10 Section 38(1) of the CPA and PGO No.226 paragraphs 2(a).
11 Samweli Kibundali Mgaya vs Republic, Criminal Appeal NO.180 of 2020
CAT (unreported) pg.7

5
(i) To provide safeguards against unchecked abuse by

investigatory agencies, seeking to protect individual
cizitens’ rights to privacy and dignity enchrined in
Article 16 of the Constitution of the United Republic
of Tanzania,and
(ii) To ensure that unscrupulous officers charged with the

mandate to investigate crimes do not plant items
relating to criminal acts in people’s private premises to
fulfill their undisclosed ill-motives.
Apart from the CPA, there are laws which provide for the
procedure of search seizure and the reader is advised to
visit.13
1.4.2 Issuance of receipt during seizure
Pursuant to section 38(3) of the CPA, the law requires issuing

of a receipt acknowledging the seizure of objects recovered,
bearing the signature of the owner or occupier of the
premises or his near relative or other person for the time
being in possession or control of the premises, and the
signature of witnesses to the search, if any.
As a general rule, omission to issue a receipt following

seizure of suspected items is a contravention of a legal
provision, which however, under the current provision, is
not always fatal. In some circumstances where the
certificate of seizure is issued and signed by the suspect,
where the suspect confessed to have been found with the
12 Ayubu Mfaume Kiboko (supra),Badiru Musa Hanogi (supra),DPP vs

Doreen John Mlemba (supra),
13 The Economic and Organized Crimes Control Act section 22, the Wildlife
Conservation Act section 106(1), the Drug Control and Enforcement Act
section 48(2) (c) and the Cyber Crime Act section 31.

items, and where the evidence establishes that indeed he

was found with the items, omission to issue the receipt may
be curable.14
1.4.3 Emergency Search
This is an exception to the overall requirement under section

38(1) of the CPA that search must be proceeded on by a
search warrant. It is actually a search conducted under
reasonable emergencies which call for doing so without
securing a warrant from the Police Officer Incharge of a
police station pursuant to section 38 of the CPA.
Under section 42 of the CPA, a warrantless search can be

carried out by a police officer in an emergency and items
found can be seizred if the Police officer believes on
reasonable grounds that it is necessary to do so in order to
prevent its evidential loss or destruction of anything
connected with an offence. Search in the emergency is a
matter of evidence which must be laid down by the witness
to show that circumstances were of such seriousness and
urgency as to require and justify immediate search or entry
without warrant.15
14 Papaa Olesikaladai@Lendemu & another vs Republic, Criminal Appeal
NO.47 of 2020 CAT (unreported), Jamali Msombe & another vs Republic,

Criminal Appeal No.28 of 2020 CAT Iringa (unreported), Gitabeka Giyaya v.
Republic, Criminal Appeal No. 44 of 2020 (unreported) Hamis Muhibu
Abdallah v Republic, Criminal Appeal No.288 of 2021 CAT (unreported).
15 Ayubu Mfaume Kiboko (supra)Seleman Nassoro Mpeli v Republic, Criminal
Appeal No.3 of 2018 CAT DSM (unreported), Joseph Thobias &2 others vs
Republic, Criminal Appeal No.296 of 019 CAT (unreported), Moses
Mwakasindile v Republic, Criminal Appeal No.15 of 2017 CAT Mbeya
(unreported), Slahi Maulid Jumanne vs Republic, Criminal Appeal No.292 of
2016 CAT Arusha (Unreported), Marceline Koivogui vs Republic Criminal
Appeal No.469 of 2017 CAT DSM (unreported), Stephen Jonas & another vs
Republic, Criminal Appeal No.337 of 2018 CAT Mbeya (unreported), Selemen
Nassoro Mpeli vs Republic, Criminal Appeal No.03 of 2018 CAT DSM
(unreported), Allan Duller vs Republic, Criminal Appeal No.367 of 2019 CAT

7
1.4.4 Independent Witness during search
An independent witness refers to one who is not directly

involved in a matter under contention but witnesses the
search and seizure of items connected to it. Generally, it is
necessary to have independent witnesses witness the search,
especially where they can easily be procured. However,
there are some circumstances where and independent
witness can be out of reach or where delay pending his
attendence may result to loss of the anticipated evidence.
Under such circumstances, omission to have an
independent witness take part in the search may not be
fatal, it is curable.16
DSM (unreported), Popart Emanuel vs Republic, Criminal Appeal No. 200 of

2010 CAT Iringa (unreported).
16 Pascal Mwinuka Vs Republic, Criminal Appeal NO. 258 of 2019, CAT
Iringa(unreported) & Shabani Said Kindamba, Criminal Appeal No. 390 OF
2019, CAT Mtwara (unreported)

PART22
PART
DPP’S
DPP’SPOWER
POWERAND DECISION
ANDPART
DECISION
2 TO CHARGE
CHARGE
2.1 Power
DPP’S POWERto Prosecute Criminal Cases
AND DECISION TO CHARGE
In Tanzania,
2.1 Power to theProsecute
power Criminal
to institute,
Cases prosecute,
supervise and control all criminal cases is vested on
the
In Director
Tanzania, of Public Prosecutions
the power (the DPP),
to institute, who is
prosecute,
the head ofand
supervise thecontrol
NationalallProsecutions Service is(NPS
criminal cases Office).
vested on
Such power may
the Director be exercised
of Public by him
Prosecutions in DPP),
(the personwho or byis
people
the head heofdelegates his power
the National to work
Prosecutions on his
Service (NPSbehalf. 17
Office).
Such power may be exercised by him in person or by
Article he
people 59Bdelegates
of the his
Constitution
power toofworkthe United
on hisRepublic
behalf.17of
Tanzania (The Constitution) and section 8 of the
National
Article 59BProsecutions Service Act ofCap.430,
of the Constitution the United requires
Republictheof
DPP,
Tanzania when(The
performing his duties,
Constitution) andto be guided
section by; the
8 of
National Prosecutions Service Act Cap.430, requires the
DPP, The need
(a) when to do justice
performing his duties, to be guided by;
(b) The need to prevent abuse of legal process
(a) The public
(c) need tointerest and
do justice
(b) Control
(d) The needoftocriminal
preventproceedings
abuse of legal process
(c) The public interest and
The(d) DPP
Controlis the only agent
of criminal empowered by law to
proceedings
control and prosecute criminal cases on behalf of the
Repblic.
The DPP Crimes
is theare regarded
only as wrongs against
agent empowered by law theto
state
control which has the duty
and prosecute to protect
criminal cases onits behalf
citizens.ofThe
the
Republic therefore,
Repblic. Crimes areinregarded
defending as its citizens,
wrongs arraigns
against the
to court perpetrators by using the DPP
state which has the duty to protect its citizens. Theas their agent
Republic therefore, in defending its citizens, arraigns
to court perpetrators by using the DPP as their agent
17Article 59B of the Constitution of the United Republic of Tanzania., section
9(1) (a)-(k) & 23 (1) – (3) of the National Prosetions service Act
17 Article 59B of the Constitution of the United Republic of Tanzania., section

9(1) (a)-(k) & 23 (1) – (3) of the National Prosetions service Act

9
for prosecution on its behalf.18 That applies even in

private prosecution, the DPP has supervisory power
to take over or discontinue it where need be.19
Any charge which is broght against an accused person

or body is brought in the name of the Republic who in
law is always the DPP or persons acting on his behalf
standing as an agent of the State.20
2.2 Independence of the DPP
When discharging duties, the DPP is required to do

so objectively, independently and impartially without
interference, undue pressure or influence from any
source.21
This means, he does not require the consent, direction

or control of any person or authority for the
commencement or supervision of criminal
proceedings. Case laws also have established that, he
enjoys an exclusive choice as to who to prosecute and
with which offences, only as to those he thinks he can
prove beyond reasonable doubt.22
18 Momanyi Bwonwong’a, Procedures in Criminal Law in Kenya. Nairobi: East

African Education Publishers Ltd,1994 pp.88, Section 9(1)(b) of the National
Prosecutions Service Act
19 ibid
20 Riddlesbarger v Robson (1959) E.A 841 (CA).
21 Ibid, article 59B(4) of the Constitution
22 Stanley Murithi Mwaura vs R,Cr. Appeal No.144 of 2019 CAT DSM
(unreported)

2.3 The DPP’s decision to charge
In deciding whether or not to prosecute suspects, the

DPP or officers working under his directives are
guided by the following principles;23
(a) Public interest.ie. Balance interests of the victim

and society, impact of the prosecution on state
security, avoiding wastage of public interests
fairness and objectivity.
(b) Interest of justice
(c) Need to prevent abuse of court process,and
(d) Availability of a realistic prospect of

conviction. Ie.sufficiency of evidence, reliability
and cogency of evidence and strength of
accused’s defence.
23 Prosecution General Instructions (PGI) No.4

11
PART 3
PART
PART33
“A“ACHARGE”
CHARGE”
“A CHARGE”
3.1 Meaning of a “charge”
3.1 Meaning of a “charge”
A charge can be defined as a written statement of
complaint
A 24charge brought
can beagainst
definedan accused personstatement
as a written in a court of of
law.
complaint brought against an accused person ina a“charge”
In subordinate courts it is referred to as court of
while
law. 24 in the High Court, an “information”.
In subordinate courts it is referred to as a “charge”
while in the High Court, an “information”.
3.2 Alternative charge
3.2 Alternative charge
An alternative charge is an additional count laid against the
accused in thecharge
An alternative sameis an
charge, in circumstances
additional count laid against where
the
available evidence suggests to prove
accused in the same charge, in circumstances where more than one
offence,
available and the prosecutor
evidence suggests istonotprove
certainmore
whichthan of them
one
25
the evidence will prove in exclusion of the
offence, and the prosecutor is not certain which of them others. To
remedy such situation, the prosecutor
the evidence will prove in exclusion of the others. To indicates 25 both
counts
remedy insuch the same chargethe
situation, so that should the
prosecutor evidenceboth
indicates fail
26
to prove the main count, it will do so to the alternative.
counts in the same charge so that should the evidence fail
to prove the main count, it will do so to the alternative.26
It should however be noted that, a conviction on the
alternative
It should counthowevercanbeonly be entered
noted if the prosecution
that, a conviction on the
fails to prove the main count; but
alternative count can only be entered if the if the main count is
prosecution
proved,
fails to the
provealternative
the main becomes
count; irrelevant.
but if theWhen main the court
count is
decides to convict an accused person under
proved, the alternative becomes irrelevant. When the courtthis type of a
charge, to
decides it must
convictmake a choiceperson
an accused on one of them
under andofnoa
this type
finding is to be made on the other.
charge, it must make a choice on one of them and The Court cannotno
convict on both, the main and alternative
finding is to be made on the other. The Court cannot counts. The
convict on both, the main and alternative counts. The
24 Kigen ARap Chemoiwa v R (1962) E.A 684, Momanyi Bwonwong’a,
Procedures in Criminal law in Kenya, Nairobi: East African Educational
24 Kigen ARap Chemoiwa v R (1962) E.A 684, Momanyi Bwonwong’a,
Publishwers, 1994
Procedures
25 Momanyi in Criminal law in Kenya,
Bwonwong’a(supra)pg 96 Nairobi: East African Educational
Publishwers, 1994
26 Wainaina v R [1973] EA 182
25 Momanyi Bwonwong’a(supra)pg 96
26 Wainaina v R [1973] EA 182

accused may however be acquitted on both if the

prosecution fails to prove either of them.27
3.3 Contents of a charge
The Golden Rule entails that, a charge must disclose the

offence by indicating a statement of the specific offence
or offences with which the accused person is charged,
together with such particulars as may be necessary for
giving reasonable information as to the nature of the
offence charged.28
Fair trial demands an accused person to be charged with

an offence known to law and in a concise, clear enough
and unambiguous manner, to enable him to understand
and plead thereto from a point of knowledge. The essence
of this is to enable him to prepare not only for defence but
also areas to cross-examine prosecution witnesses.29
3.4 Mode of framing a charge
Descriptively, a charge may be framed to contain the

following:-30
(i) The Heading. This contains the name of the Court

where the charge is to be instituted, a statement
indicating the type of the case (criminal), a space to
27 Derick Alphonce and Another vs Republic, Criminal Appeal No. 23 of 2015

CAT Mbeya (unreported), pg.17, Republic v Nasa Ginners Ltd [1955] 22
EACA 434, Seifu Bakari v R [1960] E.A 388(C.A)
28 Jackson Venant v R Criminal Appeal No. 118 of 2018 CAT Bukoba
(unreported),Section 132 of the CPA
29 Mussa Mwaikunda v Republic [2006] TLR 387, Kassim Mohamed Selemani
vs R, Criminal Appeal No.157 of 2017 CAT Mtwara (unreported), Angulile
Jackson@Kasonya vs. DPP, Criminal Appeal No. 162 of 2019 CAT
(unreported)

13
indicate case number, names of the parties to the case

and a sub-heading of the word “CHARGE”.
(ii) Statement of offence. This part contains the specific

name of the offence known to law with which the
accused person is charged, and a reference to specific
section of the law creating the offence (as well as its
specific subsections where applicable).
This part serves to describe the offence shortly in

ordinary language avoiding as far as possible the use of
technical terms and without necessarily stating all the
essential elements of the offence.31
(iii) Particulars of the offence. This part gives a

reasonable information on who, when, where, what,
and to whom (where applicable) the offence was
committed.32
The said five Ws can be demonstrated as follows:-
W…………WHO…………name of the
accused.
W…………WHEN………date,month and
year.
W….........WHERE…………the area,
District and Region the offence was
committed;
W…………WHAT………what crime has

been committed by the accused?
31 section 132 and 135(a) (ii) of the CPA

32 Republic v Loibori [1949]16 E.A.C.A. 86

W…………WHOM………to whom the

offence was committed (where applicable as it
may not apply to all cases).
(iv) Date of filing/institution of the charge.
(v) Space for the name and signature of the prosecutor

who files/institutes it. The rationale is to identify the
person who filed it in court as only people who have
capacity to do prosecute that particular case can do so.
Only the DPP or persons working under his authority
have such capacity to institute and prosecute or if it is a
private prosecutor, he must comply with what entails
to be a private prosecutor.33
(vi) Space for the date and signature of the Court

Registry Officer who received it for filing.
3.5 Alteration of a charge
This may be done either by way of amendments or

substitutions of charge under section 234 of the CPA.
Where at any stage of a trial it appears to the court that the

charge is defective, either in substance or form, the court
may make such order for alteration of the change either by
way of amendment of the charge or by substitution or
addition of a new charge as the court thinks necessary to
meet the circumstances of the case, unless having regard to
the merits of the case, the required amendments cannot be
made without injustice.34
Section 97 and 99 of the CPA

33
34Director of Public Prosecutins vs Lawretta ani chiomaand 3 others vs
Republic, Criminal Appeal No.540 of 2017 CAT DSM (unreported), Mande
Manyanya vs Republic, Criminal Appeal No.55 of 2017 CAT Tabora

15
The prosecutor may make a prayer to the Court, or the

Court suo mottu may order alteration after having noticed
the defects.35
3.6 Plea on an altered charge (essentials)
Subject to subsection (1) of section 234 of the CPA, where
the court permits amendment or substitution of the charge,
the following things are to be considered;
(1) The accused must be called to plead to a new or

amended charge. The new charge shall be read over
to him and a reply thereto recorded.36
(2) The Magistrate must inform the accused person of

the rights to recall witnesses who had already testified
before the amendment or substitution, to give their
evidence afresh or be further cross-examined by him
or his advocate. And in case he cross-examines them,
the prosecution shall have the right to re-examine any
such witness on matters arising out of such further
cross-examination.37
(3) The court may permit the prosecution to recall and

examine, with reference to any alteration of or
addition to the charge that may be allowed, any
witness who may have been examined unless the
(unreported), Remmy Gerald Sipuka vs Republic, Criminal Appeal No.67 of

2019 CAT DSM (unreported), Kali kulwa@nyangaka vs Republic, Criminal
Appeal No. 6 of 2019 CAT Mbeya (unreported), Hassan Said Twalibu vs The
Republic, Criminal Appeal No. 91 of 2019, CAT Mtwara(unreported).
35 Michael Luhiyo vs Rep, (1994) TLR 181, and Kobelo Mwaha vs Republic,
Criminal Appeal No. 173 of 2008 (unreported)
36 Thuway Akonaay VRepublic 1987 TLR 92, CAT
37 Section 234 of the CPA, Ramadhani Abdallah v Republic [2002] TLR 45
CA, Joseph Masaganya vs Republic, Cr.Apl.No. 77/2009, CAT Tabora
(unreported)

court for any reason to be recorded in writing

considers that the application is made for the purpose
of vexation, delay or for defeating the ends of
justice.38
In Njuguna v R,39 it was stated that the right of the

accused to hear witnesses give evidence afresh is a basic
right going to the root of a fair trial. Not only should the
accused be informed of that right but also, his answer
should be recorded in response to that information.
It should be note that, it is mandatory to afford the

accused the right to plead to the amended charge.
However, with regards to the right to recall witnesses,
omission to do so may not be fatal especially if the
amendment did not substantially affect the validity of the
available evidence. Under such situations, the accused
cannot say he has been prejudiced since the substance of
the evidence has not been affected.40 However, this is not a
ticket to omit informing the accused of such right.
3.7 Defective charge
A defective charge is one which is not in conformity to

law. Prosecuting on a defective charge ends it up
unproved. Generally, a defective charge prejudices the
accused person’s right to appreciate the offences facing
him; hence that contravenes the basic principle of fair
trial.41
38Section 234(2)(c) of the CPA

39Njuguna v R [2007] 2 EA 370
40 John Kihombo vs Republic, Criminal Appeal NO.437 of 2019 CAT
(unreported), Samwei Paul v. Republic, Criminal Appeal No. 312 of 2018 (un
reported), Issa Reji Mafita v. Republic, Criminal Appeal No. 332 'B' of 2020
(unreported),
41 See Juma Makoye Juma vs R Criminal Appeal No.285 of 2016 CAT
(unreported) pg.9.

17
It is trite law that, in case any defect in the charge is

discovered in the course of the trial, it is the duty of the
prosecutor to apply to court for amendment under section
234(1) of the CPA. The court as well, suo mottu, upon
discovery of any defect at any time along the trial process,
may order for amendment of that particular charge. As
aforesaid, once that is done, it is mandatory for the
amended charge to be read over to the accused for him to
plead. Failure to have the accused person plead to the
amended charge is incurably fatal.42
3.8 Remedies for a defective charge
Although it is also the responsibility of the court to order

amendment of the charge, the Prosecutor is duty bound to
review his case file constantly along the trial process in
order to ensure that it tallies with the evidence adduced by
witnesses. Sometimes the way a charge was drafted in the
beginning may vary with the evidence adduced later hence
the need for amendment.43
The following are remedies available when a charge is

defective;
(i) The magistrate may reject its admission ab initio.44
(ii) Amendment or substitution. 45
42 Vitalis Joseph vs Republic, Criminal Appeal No.384 of 2021 CAT

(unreported) pg.11
43 Pirbaksh Asharaf &10 others vs R Criminal Appeal No.345 of 2017 CAT
(unreported) pg 11
44 Section 129 of the CPA.
45 Section 234 of the CPA, Michael Luhiyo vs Rep, (1994) TLR 181, and
Kobelo Mwaha vs Republic, Criminal Appeal No. 173 of 2008 (unreported)

(iii) Nolle prosequi by the DPP or State Attorneys with an

option to re-institute.46
(iv) Withdrawal by Public Prosecutors under section 98(a)

with an option to re-institute.
(v) Dismissal by court during ruling of a case to answer

or during judgment.
3.9 What makes a charge Defective
Generally, as was stated in Ngidipe Bin Kapirama &

Others47, an illegality in the form of a charge, or
information may be cured as long as the accused person
has not been prejudiced or embarrassed in his defence or
there has otherwise been a failure of justice (each case to
be determined upon its own peculiar circumstances). Some
defectiveness of the charge may be curable while some may
not be so based on the aforementioned test.
The following are circumstances which may render a

charge defective;
3.9.1 Duplicity
A charge is said to be duplex if it contains two distinct

offences in a single count.48
Two or more offences originating from the same

transaction may be charged in the same charge but not in a
single count. Only one offence should be charged in a
count. A charge containing more than one offence in a
46Section 91(1) of the CPA

47R v. Ngidipe Bin Kapirama & Others (1939) 6 EACA
48 Lusajo Jamson Mwasambungu & another vs Republic, Criminal Appeal
No.95 of 2021 CAT Dodoma (unreported) pg.11

19
single count is bad for duplicity and does not put the
accused in a position to fully understand which of the two
offences in a count he is required to answer, hence that is
prejudicial to him.49
In Republic v Mongella 50 for instance, the accused was

alleged to have killed six persons; the prosecutor cumulated
all six distinct deaths in a single count. The court stated
that, each offence representing independent deaths of the
six deceased persons should have been put in separate
counts.
Sometimes, the provisions creating distinct offences if

lumped together in one count may render a charge duplex
as well.51
In Lusajo Jamson Mwasambungu,52 the charge indicated

the offence of “conspiracy to commit offences of uttering
a false document and obtaining money by false pretence”.
Those are two separate offences which cannot be framed
in the same count. The Court of Appeal held that such
anomaly rendered the charge to be bad for duplicity.
49 Stanley Murith Mwaura vs Republic, Criminal Appeal No.144 of 2019 CAT

DSM (unreported), Director of Public Prosecutions v Pirbaksh and 10 others,
Criminal Appeal No.345 of 2017 CAT Tabora (unreported), Kulwa Moses v
Republic, Criminal Appeal No.491 of 2015 CAT Dodoma (unreported), Diaka
Brama and another vs. Republic, Criminal Appeal No. 211 of 2017 CAT
Dodoma (unreported), Raymond Mwinuka vs. Republic, Criminal Appeal No.
366 of 2017 CAT Dodoma (unreported), Simon Kitalika and others vs
Republic, Criminal Appeal No.468 of 2016 CAT (unreported)
50 Republic v Mongella [1934] 1 E.A.C.A.152, Faustine Magadula v Republic
[2004] TLR 98 CA
51 Pirbaksh Asharaf &10 others vs R Criminal Appeal No.345 of 2017 CAT
Dodoma (unreported) pg9, Director fo Public Prosecutions vs Morgan Mariki
and Another, Criminal Appeal No. 133 of 2013 CAT (unreported), Kauto Ally
vs Republic [1985] TLR 183
52 Lusajo Jamson Mwasambungu & another vs Republic, Criminal Apeal
No.95 of 2021 CAT Dodoma (unreported),

However, as aforesaid, in determining whether the defect is

fatal and incurable, the test is whether the charge under
consideration embarrassed or prejudiced the accused such
that he could not arrange for a focused and proper
defence. In other words, the fatality of any irregularity is
dependent upon whether or not it occasioned a miscarriage
of justice.53
3.9.2 Essence of the rule against duplicity
This is a common law rule which discourages the

prosecution to join two or more separate offences in a
single count and generally it serves the purpose of ensuring
that both the accused and the court appreciate the
allegation the subject matter of the case. Its importance can
be explains as follows;
(a) As a matter of fair trial, a person charged with a

criminal offence is entitled to know the specific
offence he is alleged to commit so that he can prepare
and present a defence or decide to plead guilty.
Joining two or more separate offences in a single
count prejudices him to know which out of those
offences in a count he should prepare defence or
plead guilty.
(b) The trial court is entitled to fully know the exactly

and specific allegation in the case, in order to control
proceedings and decide the case. Lumping of separate
offences in a single count cannot be said to have fully
informed the court about the specific allegation. One
would ask, in case the accused is found guilty, which
of those several offences in a count should the court
convict and sentence the accused?
53 Republic v. Mongela Ngui [1934] EACA, Lusajo Jamson Mwasambungu &

another vs Republic, Criminal Apeal No.95 of 2021 CAT Dodoma (unreported)

21
Some offences may carry different weights of

sentences and the court cannot pronounce several
sentences out of a single count.
3.9.3 Wrong or non-existing provision
As a general rule, a charge containing a wrong or non-
existing provision of law is bad in law and is likely not to
prove the offence. Charging or convicting an accused
person on such type of a charge places him in a position
not to understand the type and nature of the offence he is
facing and how he can prepare for defence or cross-
examine his opponent witnesses. However, if
circumstances show that the accused fully understood the
allegation facing him to the extent of not being prejudiced
in any way, the defect may be curable under section 388 of the
CPA. The good example is like where the shortfalls are
remedied by the particulars of the offence enabling him to
understand the case.54
3.9.4 Statement of Offence which is not specific
Pursuant to section 132 of the CPA, a charge shall be

sufficient if it contains a statement of the “specific
offence or offences” with which the accused person is
charged, together with such particulars as may be necessary
for giving reasonable information as to the nature of the
offence charged. The word “specific” is the opposite of
“general”.
Sometimes a section of law may have several subsections

each with distinct offences carrying different sentences.
Indicating such section in general without specifying which
54 Jumanne Mondelo vs Republic, Criminal Appeal No.10 of 2018 CAT DSM
(unreported), Abdallah Nguchika vs Republic, Criminal Appeal No.182 of 2018

CAT DSM (unreported), Halfan Ndubashe vs R, Criminal Appeal No. 493 of
2017 CAT Tabora (unreported),

subsection among them the accused person is charged,

places him in ambiguity. A generalized statement of
offence may not direct the accused person to the specific
elements creating the offence, especially where the section
carries several subsections as aforesaid.
Fair trial requires the accused to fully be informed about

the law creating the offence he stands charged, and to
achieve that, the charge must point out to the specific
provision of law alleged to be infringed.
However, as stated above, some defectiveness may be

curable if circumstances show that the accused understood
the nature of the case or if the ambiguity has been cured by
the particulars of the offence.55
3.9.5 Incriminating &punishing sections
Generally, as a matter of fair trial, it is necessary for a

charge to indicate both incriminating and punishment
sections if they appear in different sections. The rationale is
to enable the accused to fully understand the nature of the
case facing him. The “nature of the case” includes the type
and seriousness of the sentence he might face if convicted.
Failure to indicate punishment section in a charge is what
makes the trial unfair for wants of disclosure of the
seriousness of the sentence, although in most cases it is
55 Jumanne Mondelo vs Republic, Criminal Appeal No.10 of 2018 CAT DSM
(unreported),Alex Medard vs R Criminal Appeal No.571 of 2017 CAT Bukoba

(unreported) pg.9,10&11, Meshaki Malongo @Kitachangwa vs Republic,
Criminal Appeal No. 302 of 2016 CAT Arusha (unreported) pg.9, Chenga
Nyamahanga vs R Criminal Appeal No.122 of 2016 CAT (unreported) pg.13 ,
Joseph Marando Ikanda vs R Criminal Appeal No. 555 of 2015 CAT
(unreported) pg.9 and Issa Charles v R Criminal Appeal No.234 of 2016 CAT
(unreported) pg.5&6. In the case of Josephat Shongo v Republic, Criminal
Appeal No. 62 of 2012 CAT (unreported) pg.7, 8&9

23
curable under section 388 of the CPA if circumstances show

that he understood the case and could not be prejudiced.56
The position under section 135(a) (ii) of the CPA stresses the
peremptory requirement that the “statement of offence” in
every charge must describe the offence concerned in
ordinary language and if the offence charged is one created
by enactment, it must contain a “reference to the section of
the enactment creating the offence”. There is no mention
of a requirement to indicate a “punishment
provision”. Therefore, omission to cite punishment
section is not fatal per se, especially where the accused
person was not prejudiced by it.57
3.9.6 Lack of eessential elements in particulars
After indicating a reference of the infringed section of law

in the statement of offence as per section 135(a) (ii) of the
CPA, what follow is the particulars of the offence
explaining elements of the offence charged. Elements of
the offence in the particulars are to be explained clearly in a
language the accused understands, giving him reasonable
information to know the nature of the case he is facing.
Failure to disclose essential elements of the offence in the
particulars makes the charge defective, although in some
cases it may be cured by the evidence adduced.58
56 Cosma Nyadago v R (1955) 22 EACA 450 (CA), Abdul Mohamed Namwaga

Madodo vs Republic,Criminal Appeal No.257 of 2020 CAT (unreported)pg 11
57 Abdul Mohamed Namwaga Madodo vs Republic,Criminal Appeal No.257 of
2020 CAT Mtwara (unreported)pg 11, Godfrey Simon and another vs Republic,
Criminal Appeal No.296 of 2018 CAT Arusha (unreported), JAFARI Salum
@Kikoti vs Republic, Criminal Appeal No.370 of 2017 CAT Dar Es Salaam
(unreported), Elisha Mussa vs Republic Criminal Appeal No.282 of 2016 CAT
Dar Es Salaam (unreported)
58 Damian Luhele vs Republic, Criminal Appeal No.501 of 2007 CAT Mwanza
(unreported), Masalu kayeye vs Republic, Criminal Appeal No.120 of 2017 CAT

(unreported), Hamis Mohamed Mtou vs Republic, Criminal Appeal No.228 of
2019 CAT DSM (unreported), Francis Paul vs Republic Criminal Appeal

3.9.7 Failure to indicate place of commission
As demonstrated earlier on the need to observe the five

“Ws” rule during framing of a charge, one of those “Ws”
represents the place where the offence was committed.
Failure to indicate clearly in the particulars of offence the
place where the offence was committed renders the charge
defective as it limits the extent of the accused’s defence,
and in particular, defence of alibi and objections as to the
jurisdictions of the court, to mention a few.59
3.9.8 Variance between date & evidence
As a general rule, variance between the date and evidence

renders the charge defective and may prejudice the
accused’s preparation for defence which includes defence
of alibi (may be on that particular date he was at another
place). The rationale is that, when a specific date of the
commission of offence is mentioned in the charge, the
accused prepares and builds his defence based on that
specified date. Now when a witness comes to mention a
different date, it means he is not proving that which is
indicated in a charge.60
No.228 of 2019 CAT (unreported), George Senga Musa vs. Republic, Criminal
Appeal No. 108 of 2018 CAT (unreported), Noah Paulo Gonde and another vs
Republic, Criminal Appeal No.456 of 2017 CAT Mbeya (unreported)
59 Shaban haruna@Dr Mwangilo vs Republic, Criminal Appeal No.396B of
2017 CAT (unreported), Magobo Njige Republic vs. Republic, Criminal Appeal
No. 442 of 2017 CAT (unreported),Jonathan George Njamas vs R Criminal
Appeal No.421 of 2016 CAT (unreported) pg.9, Noel Gurth@Bainth &
Another Versus Republic, Criminal Appeal No. 339 of 2013 (unreported) and
Kandola Paulo Kadala vs R Crimnal Appeal No. 61 of 2016 CAT (unreported)
pg.7 and Mabula Limbe v R Criminal Appeal NO.563 of 2015 CAT
(unreported) pg.5&6
60 Jafari Ndabita @ NKolanigwa vs Republic, Criminal Appeal NO.270 of
2016 CAT (unreported) pg.8

25
Sometimes the charge may indicate that the offence was

committed on a particular date, but witnesses come to
testify that it was committed on a different date. Since the
accused person will be on denial of that charge, it cannot
be said to have been proved. However, variation of time
under section 234(3) of the CPA is not fatal.61
Besides that, there are circumstances which may indicate a

slip of the pen made by the trial court or where two sets of
witnesses in the same trial mention two different dates,
some indicating the date appearing in the charge while
others indicating a different one. Depending on
circumstances of each case, the defectiveness may be
curable as the court thinks so by assigning reasons.62
3.9.9 Element of threat in armed robbery
One of the essential elements of armed robbery is “the

use or threat to use violence against any person” in
order to obtain or retain the stolen property. This offence
cannot stand without indicating the person to whom such
threat was directed because that is what makes the
elements establishing the offence. Furthermore, that
person purported to have been threatened must be called
to testify in court in order to explain the nature of the
weapon and the threat which was used. However, even in
armed robbery offences, where such omission does not
prejudice the accused person to fully appreciate the charge,
it may be curable under s. 388 of the CPA. 63
61 Augustino Samson v Republic, Criminal Appeal No. 254 of 2014, CAT

(unreported)
62 Said Majaliwa vs Republic, Criminal Appeal No.02 of 2020 CAT
(unreported)
63 Peter Marco @ John v Republic, Criminal Appeal No. 258 of 2017 CAT
(unreported), David Matiku Kitanita & 3 others vs Republic, Criminal Appeal

No. 203 of 2016 CAT (unreported) pg. 8&9, Juma Ismail & Another vs
Republic, Criminal Appeal No.501 of 2015 CAT (unreported) pg.4, and

3.9.10 Ingredients of offence vs evidence
Ingredients/Elements of the offence charged are expected

to be explained in the particulars of the charge. If such
elements differ from what witnesses adduce, the charge is
said to be variable and requires amendment under section
234 of the CPA.
This is because; the primary purpose of procuring

witnesses in a criminal case is to adduce evidence which
prove the charge. So, if witnesses make a different
narration of story other than that which establishes such
elements, that charge is variable and will remain
unproved.64
3.9.11 Charging on a repealed law
Generally, the law requires framing of a charge to be in

line with existing laws. To achieve that, prosecutors and
the court are required to update themselves on current
positions of law and avoid citing repealed laws or admitting
a charge which is under such status. As a general rule,
charging an accused person on a repealed law makes the
charge defective and vitiates the trial.65
However, there are circumstances, each case to be decided

upon its own peculiar environments, where such
irregularity may be curable if the repealed section is re-
Mustapher Songambele vs R Criminal Appeal No.321 of 2015 CAT

(unreported) pg.7&8,
64 In Justine Kakuru Kasusura@John Laizer vs Republic, Criminal Appeal No.
175 of 2010 (unreported) and Kandola Paulo Kadala vs R Crimnal Appeal No.
61 of 2016 CAT (unreported) pg.7
65 Ernest Jackson @ Mwandikaupesi and another vs Republic,Criminal Appeal
No.408 of 2019 CAT DSM (unreported), Thomas Lugumba@ Chacha vs.
republic, Criminal Appeal No.400 of 2017 CAT (unreported), Renatus Athanas
@Kasongo vs. DPP, Criminal Appeal No. 310 of 2019 CAT (unreported), See
R v Tuttle (1929) 45 TLR 357 and Matu Gichumu v R (1951) EACA 311.

27
enacted in identical words (in pari material) with the

current one, such that it cannot be said the accused has in
any way been prejudiced.66
3.9.12 Conspiracy together with actual offences
It is wrong in law to include in the same charge, an offence

of conspiracy together with its actual offence, if that actual
offence so conspired was fulfilled.67 Conspiracy can stand
alone especially where the actual offence purported to have
been conspired was not committed.
3.9.13 Charge with improper jurisdiction
A charge must be instituted in a competent court vested

with power of jurisdiction. Framing it with a wrong
jurisdiction makes it defective. Jurisdiction may vary due to
the subject matter, level of the Court and geographical area
where the offence was committed. Instituting a charge or
adjudicating a case in a court with no jurisdiction renders
the whole process a nullity.68
66 ibid
67 Lusajo Jamson Mwasambungu & another vs Republic, Criminal Apeal
No.95 of 2021 CAT (unreported), Emmanuel Magembe and 3 others v
Republic, criminal Appeal No.35 of 018 CAT (unreported), Magobo Njige &
Another v. Rep, Cr.Appeal No. 442 of 2017 (unreported), Steven Salvatory v.
Republic, Cr. Appeal No. 275 of 2018 CAT (unreported), John Paulo Shida v.
Republic, Cri. Appeal No. 335 of 2009, Hassan Idd and another v Republic,
Criminal Appeal No.324 CAT (unreported)
68 Omary Athumani@Magari and others vs. Republic, Criminal Appeal No.
173 of 2016 CAT (unreported).

PART
PART44
ACCUSED’S
ACCUSED’S PLEA
PLEA
4.1 Meaning of a plea
A plea is an accused’s formal response to a criminal charge.

It may be a response of guilty, not guilty or no contest to a
criminal charge.69
Section 228(2) CPA clearly states that, once an accused

admits the truth of the charge, the court may proceed to
record his admission, convict and pass a sentence against
him forthwith.
4.2 Essentials of a proper plea
The following are important aspects which must be

complied in the accused’s plea to the charge.
4.2.1 Accused must understand the charge
It is unfair for the accused person to plead on a charge he

does not fully understand. During plea, the accused must
be put in a position to understand the charge facing him.
Every constituent of the charge must be explained to him
and be required to admit or deny every constituent part
thereof. The trial Magistrate should also record his reply in
a form which would satisfy an appeal court that he fully
understood the charge and pleaded guilty to every element
of it unequivocally.70
69 NPS Criminal Practice Manual 2023, Bryan A Garner, Editor in Chief,

Black’s Law Dictionary, 8th Edition, pg.1189
70 Republic v Yosani Egalu and others,[1965] EACA 65

29
In Naoche Ole Mbile v Republic,71 it was emphasized

that, at the beginning of the criminal trial the accused must
be arraigned, that is, the court has to put the charge or
charges to him and to require him to plead. Non-
compliance with it renders the trial a nullity.72
In another case of Benjamin Holela v Republic,73 it was

emphasized that, the plea should be voluntary and free and
must be done by a fit person capable of understanding the
charge read to him. Also, if the accused is represented by
an advocate, it is the accused himself who is required to
plea, not his advocate.74
4.2.2 Accused be present physically
When a charge of which the accused person is facing is to

be read over in court, the accused person must be
physically present and the charge must be put to him to
plead in person. Reading the charge in court while the
accused person is not present is fatal and renders the
proceedings a nullity. The general principle of law requires
that, a person should not be put in jeopardy of a
conviction when he is unaware of the source of the
jeopardy itself.75
A clear example is like what happened in Musa Mbwaga

& Another 76 where the accused person escaped from
71 Naoche Ole Mbile v Republic [1993]TLR 253

72 Juma Gulaka and 2 others vs Republic, Criminal Appeal No. 585 of 2017,
CAT, Mwanza(unreported), Yustine Robert vs Republic, Crimnal Appeal No.
329 of 2017, CAT Mbeya (unreported).
73 MT.7479 Benjamin Holela v Republic, [1992] TLR 120
74 Clement Pancras vs Republic, Criminal Appeal NO.321 of 2013 CAT
(unreported) pg 9
75 Khalid Athumani vs Republic [2006] TLR 79 CA
76 Musa Mbwaga & Another vs Republic, Criminal Appeal No. 433 of 2007,
CAT Mbeya (unreported),

police custody. The court proceeded on under section 226 of

the CPA and along the trial the charge which included him
was substituted. The trial proceeded on with a new
substituted charge and convicted on a charge he was not
called to plead after substitution. The Court of Appeal
nullified the proceedings based on that irregularity.77
4.2.3 Assignment of an interpreter
An accused person has the right to understand the

proceedings of his trial, thus where he does not understand
the language used in court, or in subsequent stages when
witnesses of different languages appear to testify, the court
must procure an interpreter to take part in that trial.
The law requires that, whenever any evidence is given in a

language not understood by the accused and he is present
in person, it shall be interpreted to him in open court in a
language understood by him. If represented, to the
language the advocate understands. Conducting a case in
circumstances where the accused person is not conversant
with the language used is fatal and vitiates the trial.78
4.2.4 Duty to procure interpreters
In a number of cases, the Court of Appeal has stated that

the duty to avail an interpreter in Court is on the trial
Court as per section 211 of the CPA.79
77 Naoche Ole Mbile vs Republic [1993] TLR 253 CAT

78 Section 211 of the CPA, Dastan Makwaya vs Republic, Criminal Appeal No.
179 0f 2017, Bukoba, (unreported), Havyalimana Azaria and two others vs.
Republic, Criminal appeal No. 539 2015, CAT, Bukoba(unreported)
79 Barutwayo Zahaki vs R Criminal Appeal No.432 of 2015 CAT Tabora
(unreported) pg. 6 and Havyalimana Azaria and two Others v. Republic,
Criminal Appeal No. 539 of 2015, CAT Bukoba (unreported), Kigundu Francis
and another v. Republic, Criminal Appeal No. 141 of 2010, CAT (unreported).
Moses Mayanja@Msoke vs R, Criminal Appeal No. 56 of 2009, CAT Mwanza

31
4.2.5 Manner of interpreter’s oath
Before interpreters begin to interpret between the

languages used in court, the procedure is to require them to
swear or affirm first. Interpreters do not swear or affirm
the same way witnesses do; as opposed to witnesses, they
do not swear or affirm to speak the truth, they swear to
faithfully and correctly interpret words between the
languages spoken. They do so because they are not
adducing evidence, instead, their duty is only to interpret
the languages spoken. Improper form of oath or
affirmation by interpreters may vitiate the trial for wants of
their impartiality.80
4.3 Manner of recording a Plea
The accused person must plead to the charge personally,

not through his advocate81 and where he admits the truth
of the charge, his admission must be recorded as nearly
as possible in the words he uses to the level that places
an appeal court to be satisfied that indeed he fully
understood the charge.82
(Unreported), Dastan Makwaya & another vs R Criminal Appeal No.179 of

2017 CAT Bukoba (unreported) pgs.6, 7&8.
80 Havyalimana Azaria and two others vs. Republic, cited supra, Marko Patrick
Nzumila and another vs Republic, Criminal Appeal No. 141 of 2010, CAT,
(unreported), Kigundu Francis Jackson Mussa vs Republic, Criminal Appeal
No.314 of 2010 CAT Mwanza (unreported)
81 Elias Mtati@Ibichi v R, Cr.Apl.No.65 of 2014 CAT (unreported) pg.13
82 Section 228(2) of the CPA, Wamithandi v Republic 3 EALR 1010, Republic
v Yonasani Egalu and others [1965] 9 EACA 65, Stanley Murithi Mwaura vs
Republic, Criminal Appeal No. 144 of 2019,CAT DSM , (unreported), Richard
Lionga@Simageni (supra).

4.4 Steps when accused pleads guilty
In Adan v. Republic83 the Court stated that,
When a person is charged,
(i) The charge and the particulars should be read out

to him, so far as possible in his own language, but
if that is not possible, then in a language which he
can speak and understand.
(ii) The magistrate should then explain to the accused

all the ingredients of the offence charged.
(iii) If the accused then admits all those essential

elements; the magistrate should record what the
accused has said, as nearly as possible in his own
words, and then formally enter a plea of guilty.
(iv) The magistrate should next ask the prosecutor to

state the facts of the alleged offence and, when the
statement is complete, should give the accused an
opportunity to dispute or explain the facts or to
add any relevant facts.
(v) If the accused does not agree with the statement of

facts or asserts additional facts which, if true,
might raise a question as to his guilt, the magistrate
should record a change of plea to "not guilty" and
proceed to hold a trial.
83 Adan v. Republic [1973] 1 EA445 & 46, Sokoine Mtahali @chimongwa vs

Republic, Criminal Appeal NO.459 of 2018 CAT (unreported) pg.10

33
(vi) If the accused does not deny the alleged facts in

any material respect, the magistrate should record
a conviction and proceed to hear any further facts
relevant to sentence (aggravating & mitigating
factors).
(vii) The statement of facts and the accused's reply

must, of course, be recorded."
It was also stated in the case of Hando s/o Akunaay vs

Republic84 that,
After the charge has been read over to the accused

person and enters a plea of guilty which is not
equivocal, the Magistrate shall record it as nearly as
possible in the words he uses, convict him and pass
sentence upon or make an order against him,
unless there appears to be sufficient cause to the
contrary. See also in Joseph Mahona @ Joseph
Mboje @ magembe Mboje vs Republic 85
4.5 Categories of Plea
The following are categories of pleas the accused person

may enter, manner of recording and effects thereof;
84 (1951) 18 EACA 307. See also Eliko Sikujua and Another vs Republic,
Criminal Appeal No.367 of 2015, CAT Mbeya (Unreported), Republic v

Yosani Egalu and others,[1965] EACA 65.
85 Joseph Mahona @ Joseph Mboje @ magembe Mboje vs Republic, Criminal
Appeal NO.541 of 2015 CAT Tabora (Unreported), Hando Akunay vs R (1951)
18 EACA 307, Chada Wambura vs R (1953( 29 EACA 339, John Faya vs R,
Criminal Appeal No.198 of 2007 (unreported), Ambakisye Mwaipungu vs R,
Criminal Appeal No. 133 of 2010 (unreported). R. v Yohasani Egalu and
others (1942) 9 EACA 69 at pg.67

4.5.1 Unequivocal plea of guilty
A plea of guilty is said to be “unequivocal” when the

accused clearly admits to all the ingredients of the offence
he stands charged after the charge has been read over and
explained to him.86
For a plea to be unequivocal, it must be voluntary and free

from ambiguity and must show during the time when the
accused made it that he understood and appreciated the
nature of the charge. If circumstances show that he did not
appreciate the nature of the charge or did not intend to
admit that he was guilty, or that he admitted facts he could
not in law have been convicted of the offence charged, it
will be said to have not been absolute and may be
overturned in appeal.87
In any case where a conviction is likely to proceed on a

plea of guilty, it is most desirable not only that every
constituent of the charge should be explained to the
accused, but that he should be required to admit or deny
every constituent thereof, and that what he says should be
recorded in a form which will satisfy an appeal court that
he fully understood the charge and pleaded guilty to every
element of it unequivocally.88
86 Bukenya v Uganda (1967) EA 341

87 Khalid Athumani vs Republic [2006] TLR 79 CA
88 Yonesani Egalu and others [1942] EACA 65,

35
(a)Test for unequivocal plea of guilty
In Amani Yusuph vs Republic,89 quoting Michael

Adrian Chaki v R,90 the Court has emphasized the
position that, in order for an unequivocal plea of guilty to
be valid, the following conditions, taken as its test, must
conjunctively meet the following conditions:-91
(1) The appellant must be arraigned on a proper charge.

That is to say, the offence, section and the particulars
thereof must be properly framed and must explicitly
disclose the offence known to law,
(2) The court must satisfy itself, without any doubt and
must be clear in its mind, that an accused fully
comprehends what he is actually faced with, otherwise
injustice may result.
(3) When the accused is called upon to plead to the

charge, the charge is stated and fully explained to him
before he is asked to state whether he admits or denies
each and every particular ingredient of the offence. See
section 228(1) CPA and R.v. Yonasani Egalu
(supra).92
(4) The facts adduced after recording a plea of guilty

should disclose and establish all the elements of the
offence charged.
89 Amani Yusuph vs Republic, Criminal appeal No.124 of 2019

90 Michael Adrian Chaki v R, Criminal Appeal No.399 of 2019 CAT DSM
(unreported)
91 Richard Lionga@Simageni v R, Criminal Appeal No.14 of 2020 CAT DSM
(unreported),Rex vs Folder (1923) 2 KB 400, Keneth Manda v Republic
[1993]TLR 107, Ismail Bushaija v Republic [1986], LaurentMpinga vs Republic
[1983]TLR 166, Kato v R [1971]E.A 542, R.v. Yonasani Egalu (supra)
92 Yonesani Egalu and others [1942] EACA 65,

(5) The accused must be asked to plead and must actually

plead guilty to each and every ingredient of the offence
charged and the same must be properly recorded and
must be clear (see Akbarali Damji vs R 2 TLR 137
cited by the Court in Thuway Akoonay v R [1987]
TLR 92),
(6) Before a conviction on a plea of guilty is entered, the

court must satisfy itself without any doubt that the
facts adduced disclose or establish all the elements of
the offence charged.
(b)Tendering exhibits during plea
Case laws have established that, where the accused pleads

guilty of an offence unequivocally, it is not a requirement
of law to tender exhibits to support the charge.93 Generally,
exhibits under such circumstances may be tendered where
need be. And when they are tendered, the tendering is not
anything to do with proving what has been pleaded for
since such plea alone is enough to convict the accused
person.
It is however necessary for the prosecutor to tender

exhibits at this stage where there is a need for court order
of disposal (emphasis mine).
93 Frank Mlyuka v. R, Criminal Appeal No 404 of 2018, Onesmo Alex Ngimba

v R, Cr.Appl No.157 of 2019 CAT Mbeya (unreported), Laurence Mpinga vs
Republic, (1983) TLR 166, Joel Mwangambako vs Republic, Criminal Appeal
No. 516 of 2017, CAT Mbeya (unreported), Samson Bwire vs Republic,
Criminal Appeal No. 91 of 2018 CAT Shinyanga (unreported).

37
4.5.2 Equivocal plea of guilty
An equivocal plea simply means an ambiguous or vague

plea. This is a plea which is not clear as to whether the
accused admits or denies the truth of the charge.94
An example is when the accused pleads “it is true”, “I

admit it”, “that is correct” or other related words without
further detailing as to what exactly he is admitting.
In Musau s/o Muya v R (1962) E.A.64395 the court held

that, the the word “nilikosa” meaning “I have done
wrong” by itself should not be treated as unequivocal plea
of guilty without enquiry as to what it was that the
appellant admitted he had done. Before accepting a plea of
guilty, the court must be satisfied that the accused’s reply is
nothing but a clear admission of guilty, otherwise it will be
equivocal.96
In Peter Kombe vs D.P.P,97 when the charge was read

over to the accused person, he replied “it is true” without
further elaborations as to what he means to be true. In
appeal, the court held that, the words “it is true” when
used by an accused are too general to amount to a plea of
guilty.
94 Hyansit Nchimbi vs Republic, Criminal Appeal No. 109 of 2017, Court of

Appeal of Tanzania,CAT Iringa (unreported), Josephat James vs Republic,
Criminal Appeal No. 316 0f 2010, CAT Arusha (unreported), Jelada Chuma vs
Republic, Criminal Appeal No.114 of 2016 CAT Mbeya (unreported), Michael
Adrian Chaki vs Republic, Criminal Appeal No. 399 of 2019 CAT DSM
(unreported), Ndaiyai Petro vs Republic, Criminal Appeal No.277 of 2012 CAT
DSM (unreported), Deus Gendo vs Republic, Criminal Appeal No. 480 of 2015
CAT Iringa (unreported)
95 Musau s/o Muya v R (1962) E.A.643
96 DPP v Paul Reuben Makunjaa [1992] TLR 2
97 Peter Kombe vs D.P.P Cr. Appeal No.12 of 2016, CAT Mbeya
(unreported), & Burete Peter v Rep,Cr. Appeal No. 20 of 2010 CAT
(unreported)

Whenever the accused enters an equivocal plea, the court

should record a plea of not guilty and proceed on with
preliminary hearing as if he initially disputed the charge.
4.5.3 Plea of not guilty
This refers to a denial of the charge by the accused.

Common words used include “it is not true”, “it is a lie”
“I am not guilty” and so on. Pursuant to section 228 of
the CPA, a plea of not guilty may be recorded in
circumstances falling under the followings:-
(i) Where an accused does not admit the charge.
(ii) Where the accused does not admit the statement of

facts. Even where it was believed that he admits the
charge, if facts are read over to him and he denies any
of them, the Magistrate records a change of plea from
plea of guilty to plea of not guilty.
(iii) Where the accuseds refuses to plead.
(iv) Where the accused stands mute of malice or where by

reasons of infirmity cannot answer directly.
(v) Where the court tries whether the accused is of sound

mind.
Practically, where the accused person does not admit the

truth of the charge, the next stage is to conduct a
preliminary hearing pursuant to section 192(1) of the CPA.
Where it turns out that although the accused initially

denied the charge, but after reading facts for preliminary
hearing admits to all, the court may proceed on to convict

39
him if the facts so read out, disclosed all elements of the

offence charged, and if it is on the opinion of the court
that he understood the nature of all that has been read over
to him.
But where after reading of facts for preliminary hearing, he

persists on to deny the allegations, a memorandum of
undisputed facts will be signed and require the prosecution
to call witnesses to prove the disputed facts.98
4.5.4 Plea of guilty by co-accused
As was stated by SAMMATA J, as he then was in Saidi

Hatibu v R,99 where there is more than one accused jointly
charged for the offence or for different offences arising out
of the same transaction, the plea of each of them should be
recorded separately and individually, and if a charge
contains several counts, each accused must be asked to
plead to such counts separately and individually.
In the even that one or some of them plead guilty to one

or more of the offences, the Magistrate may convict and
sentence those who plead guilty and proceed to try the
others who persist with a plea not guilty.100
As was stated in R v Ismael,101 where there are multiple

accused persons, one of whom could not be guilty
without the other, extra caution should be taken in
accepting a guilty plea from one person where another
denies the charges. Some circumstances may require
adjourning the sentence against one who pleaded guilty
pending determination of a case against the one who

99 Saidi Hatibu v Republic [1984]TLR 280
100 Karuma Bukenya v Republic[1952] 19 EACA 23.
101 R v Ismael [1968] EA 609 (T).

pleaded not guilty. A good example is in the charge of

affray; where one accused pleads guilty and the other does
not, a plea of not guilty should be entered against both
because if one accused is convicted on his own plea of
guilty and the full trial of the other ends in acquittal, then
the conviction of the other cannot stand if the evidence
shows that only two persons were involved in the affray.
4.5.5 Plea in a charge with several counts
Where a charge contains several offences, the court should

record a plea on each count separately in order to ensure
determination of plea on each individual offence/count.
Where the accused person pleads guilty to one or some of
those offences, the Magistrate may convict and sentence
him on those he pleaded guilty and proceed to try him on
the others he persists with a plea of not guilty.102
4.6 The impact of an own plea of guilty
Generally, pursuant to section 360(1) of the CPA, a person

convicted of an offence on his own plea of guilty is barred
from appealing against conviction, except as to the extent
or legality of the sentence imposed.
In other scenarios, it was stated in Republic v Fulabhai

Patel and another103 that, once sentence has been passed
upon an accused person who has unequivocally pleaded
guilty to a charge, he cannot afterwards be allowed to
retract that plea unless he pleaded guilty to a charge which
infact disclosed no offence.
102 Saidi Hatibu (supra)

103 Republic v Fulabhai Patel and another, [1946] 13 E.A.C.A 179,

41
In Laurent Mpinga v R104, and several other case laws,

the followings are acceptable criteria for a person who was
convicted on his own plea of guilty to appeal to an
appellate court successifully.
(i) If the appeal is against the extent or legality of the

sentence.
(ii) That taking into consideration the admitted facts,

his plea was imperfect, ambiguous or unfinished
and, for that reason, the lower court erred in law in
treating it as a plea of guilty. 105
(iii) Where circumstances show that, the appellant did

not appreciate the nature of the charge or did not
intend to admit he was guilty of it106 or
(iv) That he pleaded guilty as the result of a mistake or

misapprehension.
(v) That the charge laid at the appellant’s door

discloses no offence known to law.
(vi) That upon the admitted facts, he could not in law

have been convicted of the offence charged.
104 104 Laurent Mpinga V R (1983) TLR 166, Isaya David Mangleza Chanzi vs
R Criminal Appeal No. 349 of 2017 CAT (unreported)pg.6, Ramji Mhapa v
Republic, Criminal Appeal No. 88 of 2014 CAT (unreported pg.8), Rex v
Folder (1923) 2 KB 400 as quoted in the case of Khalid Othumani v Republic,
Criminal Appeal No. 103 of 2005 (unreported), and Said Mswaje @
Mwanalushu V Republic, Criminal Appeal No. 464 of 2007, CAT (Unreported),
105 Ndihokubwayo Emmanuel vs Republic, Criminal Appeal No.300 “B” of
106 Rashidi Nzovu vs R Criminal Appeal No. 545 of 2016 CAT (unreported)
pg.5, Ngasa Madina v R Criminal Appeal No. 151 of 2005 CAT (unreported)
and Khalid Athumani v Republic [2006] TLR 76

4.7 Pleas of “autrefois acquit”
The plea of autrefois acquit (a former acquittal), is

grounded on the universal maxim of the common law of
England, that no one is to be brought into jeopardy of his
life or limb more than once for the same offence he was
formally acquitted.107
In a simple language, it is a bar to charge a person with the

same offence which he was previously charged by a
competent court and acquitted. The governing provision
for this principle is Section 228(5) (a) (i) of the CPA.108
4.8 Pleas of “autrefois convict”
The plea of autrefois convict is the rule against double

jeopardy, grounded on the principle that, no man ought to
be twice brought in danger of his life for one and the same
crime which has previously been adjudicated by a court of
competent jurisdiction and convicted him. i.e Nimo Bis
Debet Puniri pro Uno Delicto. Since a court of
competent jurisdiction has previously convicted such a
person on such same offence, he has already paid the price
of his guilty and it will not be fair to punish him again for
the same.109
HOWEVER, this rule does not protect a person from

being protecuted for a different offence originating from
the same facts, as was stated in Republic v Msusa Ally110
where an accused person was charged and convicted of
107 Double jeopardy Rule, House of commons commentary pp.335-6

108 Godison Ndobho v Republic [1993]TL 287,Republic v Msusa Ally [1987]
TLR 190, Twaha Hussein v R, Criminal Appeal No.415 of 2017 CAT Mwanza
(unreported),
109 Double jeopardy Rule, House of commons commentary pp.335-6
110 Republic v Msusa Ally [1987] TLR 190

43
assault causing actual bodily harm. Later on the victim died

of the same assault and was again charged with murder. He
attempted to raise the defence of autrefois convict but was
barred since his previous conviction was not on murder,
but assault causing actual bodily harm which is a distinct
offence though they originate from the same transaction.
In the case of Maduhu Masele v Republic,111it was

further stressed that, it is the duty of the accused to raise
the plea of autrefois acquit or convict at any time before
closure of defence case, and as a general rule, the burden of
proof is upon him who asserts it.
4.9 Doctrine of issue estoppel
The principle of issue estoppel occurs where an issue of

fact has been tried by a competent court on a former
occasion and a finding has been reached in favour of an
accused, such a finding would constitute an
estoppel against the prosecution, not as a bar to the trial
and conviction of the accused for a different and distinct
offence but as precluding the reception of evidence to
disturb that finding of fact when the accused is tried
subsequently even for a different offence which might be
permitted by law.112
Example: A witness attempted to tender a cautioned

statement, an objection raised, an inquiry is
conducted and the court makes a finding that the
same was not recorded in the environment of
voluntariness. The prosecution cannot use that
same cautioned statement against the same accused
even for a different offence charged subsequently;
111 Maduhu Masele v Republic [1991] TLR 143

112 Issa Athumani Tojo v R [2003] TLR 199.

they are estopped from disturbing that finding of

the court with regards to voluntariness of the
statement.
In order to invoke the doctrine of issue estoppel the

parties in the two trials must be the same and the fact-in-
issue proved or not in the earlier trial must be identical with
what is sought to be reagitated in the subsequent trial.113
The principle is different from autrofois principle in the

sense that, autrefois principle prevents the prosecution
from impugning the validity of the verdict as a whole; issue
estoppel prevents raising again any of the separate issues of
fact which have been decided. The purposes of the
Doctrine of issue of estoppel include;-.114
1) Avails fairness to the accused who should not be

called upon to answer questions already determined
in his or her favour;
2) The integrity and coherency of the criminal law
3) The institutional values of judicial findings and

economy.
4.10 Plea of Presidential Pardon
A pardon is a common law extra-judicial power which is

exercised by the Crown under the Royal Prerogative of
113 State of Andhra Pradesh v Kokkiliaada Meerayya and Another (1968) INSC
300, AIR 1970 SC 771
114 Julius Michael and others Vs Republic, Criminal Appeal No.264 of 2014
CAT (unreported), DPP vs Ashamu Maulid Hassan and others Criminal Appeal
No.37 of 2015 CAT (unreported), Issa AthumanI Tojo vs Republic, Criminal
Appeal No.37 of 2015, CAT Dar Es Salaam (unreported).

45
Mercy.115 In Tanzania it can be defined as a Presidential

decision to relieve a convict or prisoner of some or all of
the legal consequences resulting from a criminal
conviction. It is a forgiveness which exempts a convict or
prisoner from a particular punishment.
Article 45(1) (a)-(d) of the Constitution of the United Republic of

Tanzania designates the President as the only person with
the power to grant pardons.
A person cannot be tried for a criminal offence if he

shows that he had been pardoned for that offence by the
President.116 He can reply to the charge that he has already
been pardoned by the President on that offence, and
thereafter the provision of section 228(5) (b) of the CPA shall
apply.
4.11 Change of plea
The accused person is permitted to amend his earlier plea

at any time of the trial before sentence is imposed.117
In Maumba v R 118 it was stated that, a Magistrate’s

powers to allow amendment of pleas exists only during
trial, before conviction and before the court becomes
fanctus officio (fanctus officio comes when final order or
sentence has been pronounced thereby preventing the
court from re-opening the case).
115 The Royal Prerogative of Mercy, 2015 & see R v Foster (Barry) [1985] QB
115; [1984] 3 W.L.R. 401]
116 Momanyi Bwonwong’a, Procedures in Criminal Law in Kenya. Nairobi:
East African Education Publishers Ltd,1994 pp.87

117 Masumbuko Josedph vs republic, Criminal Appeal No. 218 of 2014, CAT
Mwanza (unreported), Ally Shabani @ Swalehe vs Republic, Criminal Appeal
No. 351 of 2020, CAT, Dodoma(unreported), Shehe Ramadhani @ Idd vs
Republic, Criminal Appeal No. 82 of 2020, CAT, Tanga (unreported), Chacha v
Republic,[1953] EACA 339, Kamundi v Republic,[1953] EA 378, Joseph
Mugola Pudha v Republic (1952)EACA 55
118 Maumba v R (1966)EA 167, see also Kamundi v R [1973] EA 540

In Chacha v Republic119the court held that, if after

pleading guilty to a charge, discussion follows and the
accused intending for any reason to amend his plea, the
charge should be read to him afresh whereupon his new
plea shall be recorded.
Similarly, in Kamundi v Republic,120 the court held that, a

magistrate has a judicial discretion to allow a change of plea
before passing sentence or making an order finally
disposing of the case.
4.12 Plea as a bar to lack of jurisdiction
Jurisdiction of courts is a creature of statute and not what

the litigants like or dislike. It may vary due to the subject
matter, level of the Court and geographical area where the
offence was committed. Adjudicating a case which the
Court has no jurisdiction renders its judgment a nullity.121
The accused may therefore plead lack of jurisdiction on a

charge leveled against him. A simple example is when after
the charge has been read over to him and asked to plead, he
replies to the court that “Your Honour, this court lacks
jurisdiction to entertain my case”. The famous case of
Desai v Warsama122 emphasized the principle that;-
“No court can confer jurisdiction upon itself, and

where a court assumes jurisdiction and proceeds to
hear and determine a matter not within its
119 Chacha v Republic, [1953] 20 EACA 339

120 Kamundi v Republic, [1953] EA 378 and Joseph Mugola s/o Pudha v
Republic EACA Cr.App 55 of 1952
121 Omary Athumani@Magari and others vs. Republic, Criminal Appeal No.
173 of 2016 CAT Dar Es Salaam (unreported).
122 Desai v Warsama [1967] E.A 351

47
jurisdiction, the proceedings and the determination

are nullities.”
According to sections 4(1) and 5(1) of the MCA, a District

Court has jurisdiction in which it is established, likewise, a
Resident Magistrate Court can exercise jurisdiction in such
areas as may be specified in the order of the Gazette by the
Chief Justice. Therefore, each court has to observe its
boundaries as far as the subject matter, level of the court
and territorial authority are concerned.123
In Sharma v R 124 it was emphasized that, proof of place

of commission of offence is essential to the prosecution’s
case and that although it is not always capable of exact
proof, evidence should be led on which the necessary
inference can be drawn.
4.13 Plea Bargaining
Pursuant to section 2 of the Criminal Procedure Act, plea

bargaining is a negotiation in a criminal case between a
prosecutor and the accused whereby the accused agrees to
(a) plead guilty to a particular offence or a lesser offence or
to a particular count or counts in a charge with multiple
counts; or (b) cooperate with the prosecutor in the
provision of information that may lead to a discovery of
other information relating to the offence or count charged,
in return for concession from the prosecutor which may
lead to a lenient sentence or withdrawal of other counts.
Plea bargaining is still a new practice in the Tanzania legal

system, as it has been introduced recently in 2019 via
Written Laws (Miscellaneous Amendment) Act No.4 of 2019
123 Omary Athumani@Magari and others (supra),Ramadhani Omary Mtiula v
R, Criminal Appeal No.62 of 2019 CAT Iringa (unreported).
124 Sharma v R 20 EACA 310

which introduced into the CPA under sections 194A, 194B,

194C, 194D, 194E, 194F and 194G. For a detailed
explanation of procedures on how to handle plea
bargaining in Tanzania, the reader is advised to visit the
“National Prosecutions Service, Plea Bargaining Guidelines”, as
may be updated from time to time. This part will only
discuss it briefly just to enlighten on the basics.
4.13.1 Initiating a Plea Bargaining
Plea bargaining may be initiated at any time in the

following circumstances:-125
(1) when there is a pending case before the court
(2) before closure of prosecution case
(3) After closure of prosecution case subject to
approval by the DPP.
4.13.2 Who may initiate a Plea Bargaining?
Pursuant to section 194A (2) of the CPA, plea bargaining

may be initiated by any of the following persons:-
(1) The accused person or his advocate
(2) The prosecutor
(3) Where the case involves a child in conflict with the
law, his parent, guardian or social welfare officer
4.13.3 Registration of a plea agreement
After plea agreement has been concluded, the court may

register it after having been satisfied that it was voluntarily
obtained and the accused was competent to enter into it.
The court may pronounce a decision based on plea
agreement or make such other orders as it deems necessary
including an order to reject the plea agreement for
sufficient reasons, except that, such rejection shall not
125 National Prosecutions Service; Plea Bargaining Guidelines, 2022 pg 3

49
operate as a bar to any subsequent negotiations preferred

by the parties.126
Where the court accepts the plea agreement, it shall

become binding upon the parties and the agreement shall
become part of the record. The court may further convict
the accused where the agreement was entered in
accordance with sections 194A and 194B but shall
sentence him according to what has been agreed in the plea
agreement notwithstanding the sentence specified by the
provisions of the applicable law.
4.13.4 Termination of plea Bargaining agreement
Plea bargaining agreement may be terminated by the

parties who entered into it at any time, by stating the
reason thereof in writing. The termination however does
not bar either party from re-initiating the plea bargaining
provided that he assigns good cause. The reasons for
termination may include the followings:-
(1) Death of the accused person
(2) Lapse of the time required to complete negotiation
(3) Withdrawal by either party. The accused’s side may

change intention of negotiation, likewise the prosecutor
may withdraw it when it comes to his knowledge that
some material facts have been concealed or
misrepresented by the accused with the intention of
misleading the plea bargaining.
126 Section 194D of the CPA

4.13.5 Accused’s right to legal Representation
In Tanzania, the right to legal representation in offences

other than those which attract capital punishment is not
automatic. The person in need of it has a duty to either
engage an advocate or apply to court for legal aid in terms
of section 33 of the Legal Aid Act, [CAP 21 RE 2019].
But in cases where the accused person is a child, section 33(2)
of Cap.21, requires the Magistrate to certify that he ought to
have legal aid in order for the advocate to be assigned to
him.127
127 Mashaka Marwa v Republic, Criminal Appeal No.138 of 2018 CAT

(unreported), Makenji Kamura vs Republic, Criminal Appeal No. 30 of 2018,
CAT, (unreported), Manyinyi Gabriel @ Gerisa vs Republic, Criminal Appeal
No.594 of 2017 CAT (unreported), Maganga Udugali vs Republic, Criminal
Appeal No.144 of 2017 CAT, (unreported).

51
PART 5
PART 5
BAIL
BAIL
5.1 Meaning of Bail
Bail is a release from custody by a court of law of a person

accused of a criminal offence after such person has entered
a recognizance consisting of a bond with or without
sureties, for a reasonable sum of money to the effect that
he or she would appear before the court for his or her trial
at a required time.128
In bailable offences, bail is a right, not a privilege to the

accused person, though it is not an absolute right as it is
subject to the discreation of the court upon fullifment of
conditions set out for it.129
5.2 Purpose of Bail
The purpose of bail is to ensure the presence of the

accused when required without the hardship of
incarceration before guilt has been proved and while the
presumption of innocence is to be given effect.130
Article 13(6) (b), prohibits treating persons as guilty of the

offence until proven so by a competent court, and article
15(1) & (2) of the same provides for the right to personal
freedom. Rights and freedom of a person are protected by
the Constitution as such.
128 Law lexicon by Ramanth Iyer, (3rd ed), A citizens Handbook on the Law
Governing Bail in Uganda – Foundation for Human Rights 2011.
129 Tito Douglas Lyimo v R [1978]LRT 55
130 United States ex rel. Rubinstein v. Mulcahy, (2d Cir. 1946) 155 F. (2d) 1002
at 1004,, douglas B (1964) Criminal Procedure in Uganda Kenya (Law in
Africa)(No.13)pg 57

However, as an exeption, a person’s rights or freedom is

limited to certain circumstances falling under Article 30(1)
& (2) (a)-(f) of the Constitution of the United Republic of
Tanzania which reads:-
30.-(1) The human rights and freedoms, the principles

of which are set out in this Constitution, shall not be
exercised by a person in a manner that causes
interference with or curtailment of the rights and
freedoms of other persons or of the public interest.
(2) It is hereby declared that the provisions contained

in this Part of this Constitution which set out the
principles of rights, freedom and duties, does not
render unlawful any existing law or prohibit the
enactment of any law or the doing of any lawful act in
accordance with such law for the purposes of-
(a) ensuring that the rights and freedoms of other

people or of the interests of the public are not
prejudiced by the wrongful exercise of the
freedoms and rights of individuals;
(b) ensuring the defence, public safety, public peace,

public morality, public health, rural and urban
development planning, the exploitation and
utilization of minerals or the increase and
development of property of any other interests for
the purposes of enhancing the public benefit;
(c) ensuring the execution of a judgment or order of a

court given or made in any civil or criminal matter;
(d) protecting the reputation, rights and freedoms of

others or the privacy of persons involved in any
court proceedings, prohibiting the disclosure of

53
confidential information, or safeguarding the

dignity, authority and independence of the courts;
(e) imposing restrictions, supervising and controlling

the formation, management and activities of
private societies and organizations in the country;
or
(f) Enabling any other thing to be done which

promotes, or preserves the national interest in
general.
The above quotation means, the Constitution allows

enactment of laws to limit rights set out under its Articles
13(6) (b) and 15(1) & (2), and that does not render those
laws unlawful. One would say, a person’s rights and
freedom ends where another person’s rights and freedom
begin, and that rights and freedoms without limitation is a
license to maiming rights of others.
This is the reason why the Parliament enacted laws with

provisions brohibiting bail in certain offences and
circumstances, and such laws are not unconstitutional
because their enactment is blessed by the same
Constitution.131
5.3 Circumstances where bail is restricted
Sections 148(5) (a) to (e) of the CPA and section 36(4) (a) to (f) of
EOCCA, provide for circumstances where bail may be
denied. Such circumstances include the following:-
(i) Where the accused is charged with offences such as

murder, treason, armed robbery,
131 Article 30(1) & (2) (a)-(f),

(ii) Illicit trafficking in drugs against the Drugs and

Prevention of Illicit Traffic in Drugs Act, but
does not include a person charged for an offence
of being in possession of drugs which taking into
account all circumstances in which the offence
was committed, was not meant for conveyance or
commercial purpose.132
(iii) Offence involving heroin, cocaine, prepared

opium, opium poppy (papaver setigerum), poppy
straw, coca plant, coca leaves, cannabis sativa or
cannabis resin (Indian hemp), methaqualone
(mandrax), catha edulis (khat) or any other
narcotic drug or psychotropic substance specified
in the Schedule to this Act which has an
established value certified by the Commissioner
for National Coordination of Drugs Control
Commission, as exceeding ten million shillings;
(iv) Terrorism against the Prevention of Terrorism

Act,133
(v) Money laundering contrary to Anti-money

Laundering Act.
(vi) Trafficking in persons under the Anti-Trafficking

in Persons Act
(vii) It appears to the court that it is necessary that the

accused person be kept in custody for his own
protection or safety.
Section 29 of Drug control and Enforcement Act

132
133Prevention of Terrorism Act, No.21 of 2002; ie. See section 49 of the Act
and section 148(5)(iv) of the Criminal Procedure Act [Cap.20 R.E 2002].

55
(viii) It appears that the accused person has previously

been granted bail by a court and failed to comply
with the conditions of the bail or absconded,
(ix) The offence with which the person is charged

involves actual money or property whose value
exceeds ten million shillings unless that person
deposits cash or other property equivalent to half
the amount or value of actual money or property
involved and the rest is secured by execution of a
bond.134
(x) If the DPP files a certificate objecting granting of

bail under section 148(4) of the CPA or section 36(2)
of the EOCA Cap.200.135
5.4 Conditions of Bail
Section 148(6) of the CPA categorises conditions of bail into

mandatory and discreationary. Mandatory conditions
include
(i) surrender by the accused person to the police of his
passport or any other travel document,
(ii) Restriction of movement outside the own, village or

the area or residence.
Discreationary conditions may include,136
134 Edward Kambuga and Another Vs Republic (1990) TLR 84, Republic vs
Hsu Chin Tai and 35 Others, Criminal Application No. 2 of 2011, High Court,
(unreported) page 19-20.
135 Emmanuel Simforian Massawe v R, Criminal Appeal No.252 of 2016 CAT
DSM( unreported), The Attorney General vs Jeremia Mtobesya, Civil Appeal

No. 65 of 2016 CAT DSM (unreported) and DPP vs Li Ling Ling, Criminal
Appeal No. 508 of 2015 CAT DSM (unreported).

(i) requiring the accused to report at specified intervals

to a police station or other authority within the
area of his residence,
(ii) to abstain from visiting a particular locality or

premises or associating with certain specified
persons,
(iii) Any other condition which the court may deem

proper and just to impose in addition to the
proceeding conditions.
5.5 Change of circumstance after bail
This refers to changes of circumstances which affect the

conditions of bail which one was originally granted,
requiring either the court to cancel or require a greater
amount or any other reason as the court deems just.137
Where the prosecutor or police officer handling a case is of

the opinion that circumstances of bail conditions as was
granted in the first instance have changed, he shall make an
application to court to have them varied.138
The court may issue a warrant of arrest for the accused

person to be brought before it, and may require him to
fulfill additional conditions imposed in that respect. Where
he fails so to do, the person may be committed to prison. 139
There are some instances where the court may require
136 Hamisi Masisi and Six Others vs. Republic [1985] T.L.R. 24, Freeman
Aikael Mbowe and Another vs Republic, Criminal Appeal No. 344 of 2018
High Court (unreported), Republic vs. Georges Tumpes [1968] H.C.D 416.
138 ibid
139 Patrick Kiage, Essentials of Criminal Procedure in Kenya, 2010 pg.127

57
canceling bail absolutely, because circumstances have

resulted to making it unbailable.
Before cancelling bail or varying its conditions in

circumstances falling above, it is mandatory for the court to
afford the parties an opportunity to be heard.140
5.6 Power to vary bail conditions
The power to vary bail imposed by the District and

Resident Magistrate Courts is on the High Court. Such
subordinate courts cannot vary bail impolsed by itself due
to the principle of fanctus officio.141
5.7 Consequences of breach of bail conditions
Where an accused breaches conditions of bail granted by

the Court, any of the followings may happen:-
(i) He may not be considered again for any further bail in

the same case.142 Bail can be cancelled for various
reasons, for example, the police believe that the
accused is absconding or planning to abscond and the
accused breaches bail conditions, subject to sections 68
and 69 of the CPA.
(ii) His property, movable or immovable, as is

commensurate to the monetary value of any property
involved in the case may be confiscated by
attachment.143
140Bail guidelines of the Judiciary of Tanzania, 2020

141Section 149 of the CPA, Silvester Hills Dawi and Another vs DPP, Criminal
Appeal No. 250 of 2006, Court of Appeal of Tanzania, (unreported). Mohamed
Enterprises (T) Ltd Vs Masoud Mohamed Nasser, CAT at DSM, Civil
Application No. 33 of 2012

(iii) After sufficient efforts have been made to trace him

and compel his attendance, the trial in respect of him
may continue in his absence irrespective of the stage
of the trial when he obsconded.144
(iv) Forfeiture of recognizance.145
If a person admitted to bail absconds, he may not be

considered to bail in the same case. The accused who
abscond while on bail the property of equivalent value may
be confiscated by attachment and the trial shall continue in
his absence.146
5.8 Discharge of surelties
According to sections 155 and 156 of the CPA, the followings

are circumstances, in which a surety can be discharged,
namely,
(i) on application by such surety to the magistrate to
have his bond discharged,
(ii) where the surety dies,
(iii) where the case abates (due to death of accused),
(iv) when the case is finalized.
5.9 Forfeiture of Recognizance
Sometimes, accused person does not appear in court as

required. In circumstances such as these, forfeiture should
not be taken as an automatic option; the surety should be
given a reasonable opportunity to explain to the court what

146 See section 158 and 159 CPA

59
he is prepared to do to trace the accused person after the

case.147
Where to the satisfaction of the court it is proved that an

accused person has obsconded,
(i) The court may call upon the surety to pay the
penalty thereof or to show cause why it should not
be paid.148
(ii) If sufficient cause is not shown and the penalty is

not paid, the court may issue a warrant of
attachment of sale of the movable property
belonging to the surety, or his estate if he is dead.149
(iii) Wehre a surety to a recognizance dies before the

recognizance is forfeited, his estate shall be
discharged from all liability in respect of the
recognizance,150
(iv) Where that penalty is not paid and cannot be

recovered by attachment and sale, the person so
bound shall be liable, by order of the corut which
issued the warrant, to imprisonment for six
months.151
The remedy available upon dissatisfaction of all orders in

respect of forfeiture of recognizance is an appeal or
revision by the High Court.152
147 R. v. Abdallahamid Daleyusufu, Crim. Rev. 74-D-67; 23/6/67; Georges,

C.J.
148 Section 160(1) of the CPA
152 Section n161 of the CPA

5.10 Remedy when the court refuses to grant Bail
As stated in AG vs Dickson Paulo Sanga153, in case bail is

denied, the accused has a right of appeal to the High Court
in terms of section 161 of the CPA where the order refusing
bail may be reviewed. And such person is aggrieved by the
decision of the High Court in respect of the same; he may
appeal to the Court of Appeal in terms of section 4 of the
AJA.154
The High Court may also call upon the file and revise the
matter suo mottu or upon application by either party.155
5.11 Bail pending appeal
In Lamba v R156 it was stated that, unlike bail pending trial

where it exists as a matter of right, bail pending appeal does
not exist as of right but subject to proving existence of
exceptional circumstances and overwhelming chance for
the appeal to succeed.
We say bail pending appeal is not a matter of right because,

unlike bail pending trial where presumption of innocence
exists, in bail pending appeal that presumption has already
been rebutted by the court when it convicted and
pronounced sentenced against the accused person.157
153 The Attorney General vs Dickson Paulo Sanga, Civil Appeal No.175 of
2020 CAT (unreported)

154 Appellate Jurisdiciton Act Cap.141 R.E 2019
155 Bail Guidelines by the Juridiary of Tanzania, 2020.
156 Lamba v R [1958] EA 3376
157 Amon Mulotwa Mwalupindi vs DPP, Criminal Application No. 09/06 of
2020, Court of Appeal of Tanzania, CAT (unreported), Lawrence Mateso vs

Republic [1996] TLR 118, and Raghbar Singh Lamba vs Republic [1958] 1 EA
337 at page 338

61
In Chimambhai vs Reublic158 the Court stated that;
“The case of an appellant under sentence of

imprisonment seeking bail lacks one of the
strongest elements normally available to an accused
person seeking bail before trial, mainly presumption
of innocence, but nevertheless the law of today
frankly recognizes, to an extent at one time
unknow, the possibility of the conviction being
erroneous or the punishment excessive.”
Although bail may still be granted pending appeal, in

Amon Mulotwa Mwalupindi vs the DPP159, the court
narrated the following things to bear in mind when
determining an application for bail pending appeal;
(1) That bail is a right applicable only to cases where the

accused person has not yet been convicted;
(2) Bail pending an appeal can be granted only where

there are exceptional and unusual reasons or where
there is an overwhelm ing probability that the appeal
would succeed,
(3) Where an argument on the facts needs detailed

references to the text of the evidence or the
judgment to support it, it cannot be said that the
appeal has overwhelming chances o f success,
(4) Since no general principle exists that a person

released on bail pending appeal will not be sent back
to prison if his appeal fails, the court is reluctant to
Chimambhai vs Reublic (No.2) [1971] E.A 343 AT 345

158
159Amon Mulotwa Mwalupindi vs DPP, Criminal Application No. 09/06 of
2020, Court of Appeal of Tanzania, CAT Mbeya (unreported)

order that a convicted person be released on bail

pending the outcome of the appeal;
(5) Deciding whether bail should be granted involves

balancing liberty of the individual with proper
administration of justice.
5.12 Bindign Over
Binding over is an exercise of power by the Magistrate to

require any person brought before the court, to enter into a
recognizance (give a bond) with or without sureties as
security that for a specified period he will keep the peace
and/or be of good behavior.160
In Tanzania, binding over is issued based on any

circumstance falling under sections 70,71,72,73 and 74 of the
CPA.
Binding over in itself is not a punishment but a preventive

measure usually used as an alternative to having a criminal
trial where the prosecution is facing evidential or practical
difficulties to persue it. The idea behind it is to monitor the
person’s behavior that he should not breach the peace or
commit certain acts prohibited by law in the future
(emphasis mine).
Failure by that person to adhere to the conditions of the

order may result to him being committed to prison, or if
already in prison, be detained therein until the period he
was bound over expires or until when he gives the security
160 Binding Over (The Law commission report by Lord High Chancellor by
Command of her Magesty) 1994.

63
to the court or magistrate who made the order requiring

it.161
The procedure and manner of handling it is provided for
under sections 74 to 88 of the Criminal Procedure Act.
The remedy available upon dissatisfaction after an order of

binding over is made is to appeal to the District court or
the High court, as the case may be, and the provisions of
Part X of the CPA or Part III of the MCA shall apply.162
5.13 Adjournments cases
After arraignment of an accused person in court, it is

expected of the court to hold a preliminary hearing, as soon
as practicable and proceed with hearing of the case as the
case may ble.
Notwithstanding the provision of section 131A of the CPA in

respect of offences tht are to be instituted in court, after
arraignment of the accused, adjournment is not allowed to
exceed sixty days (60) except for circumstances falling
under section 225(4) and (5) of the CPA. This section provides
for an exception in circumstances where extension is
sought by the Regional Crimes Officer, State Attorney or
the DPP respectively.163
According to section 225(4) of the CPA what is unlawful is

not "to hear" a case after an aggregate of sixty days has
expired, but what shall not be lawful is "to adjourn" a case
after the expiry of sixty days if the exceptional

163 Deemay Daat and 2 others vs Republic, Criminal Appeal No.80 of 1994
CAT (unreported), Abdallah Kondo vs Republic, Criminal Appeal No.322 of
2015 CAT (unreported).

circumstances have not been complied with; nowhere in the

section it is implied or expressed that a hearing after the
expiry of sixty days is a nullity; otherwise subsection (5)
would be useless as it does not bar subsequent charges on
the same facts.164
If the prosecution is unable to proceed with the hearing for

whatever reason, the Court should discharge the accused,
but the omission to discharge the accused that does not
affect the jurisdiction of the Court to try the case has little
or no consequence since discharging of the accused would
not bar subsequent proceedings against him for the same
offence.165
164 Abdallah Kondo vs Republic, Criminal Appeal No.322 of 2015 CAT DSM
(unreported), DPP vs Joseph Mseti @Super Dingi and 3 Others, Criminal
Appeal No. 549 of 2019, CAT, Mwanza, (unreported), Matimo Sagila nad
Another vs Republic, Criminal Appeal No. 7 of 2015, CAT,DSM (unreported).
165 ibid

65
PART 6
PART 6
PRELIMINARY HEARING
PRELIMINARY HEARING (PH)
(PH)
6.1 Meaning of preliminary hearing
Sometimes refered to as “an accelerated trial”, it is a

procedure conducted after the accused person pleads not
guilty to the charge. The purpose of conducting
preliminary hearing is to determine what matters are in
dispute and what others are not, in order for the
prosecution to call only those witnesses to prove disputed
matters and refrain from calling those to testify for the
undisputed ones. The act of waiving to call witnesses for
undisputed facts reduces their number thereby accelerating
the trial.166
In itself, preliminary hearing is not a hearing (does not

constitute an intergral part of the trial), but a preliminary
inquiry of facts to determnine which ones need to be
proved and which ones do not require any proof since they
are uncontested.167
The governing provision for conducting preliminary

hearing is section 192 of the CPA, which was introduced by
rule 6 of the Accelerated Trial and Disposal of Cases Rules GN
192 of 1988 and there are some legilations with similar
procedure, such as the Economic and Organised Crimes Contol
Act Cap.200 R.E 2022 section 35 and rule 15 of the
166 Juma Antoni vs Republic, Criminal Appeal No.571 of 2020 CAT

(unreported), Jackson Daudi v. Republic,Criminal Appeal No.11 of 2002
CAT (unreported)
167 Emmanuel Malahya v R, Criminal Appeal No.212 of 2004, Juma Antoni v
R, Criminal Appeal No. 571 of 2020 CAT (unreported),

Economic and Organized Crime Control (The Corruption

and Economic Crimes Division) Rules 2016.168
6.2 The purpose of preliminary hearing
As aforesaid, the main purpose of preliminary hearing is to

accelerate/speed up a trial, that’s why it is sometimes
referred to as “an accelerated trial”. It aims at promoting
expeditious trials and cost-effective disposal of criminal
cases, by ascertaining at the earliest stage in the proceedings
matters which are not in dispute in order fo the prosecution
to procure witnesses only for the disputed matters.
Refraining from calling witness to testify on undisputed
matters is what makes the trial short.169
6.3 Status of undisputed facts and exhibits during ph
Sections 192(4) of the CPA and 35(3) of the EOCCA provide

that, facts and exhibits admitted during preliminary hearing
are deemed to have been ascertained or proved and
therefore, only the evidence on the disputed matters will be
called at the trial. There will be no need to call witnesses to
prove that which is agreed to be undisputed, save that if,
during the course of the trial, the court is of the opinion
that the interests of justice so demand, the court may direct
that any fact or document admitted or agreed in in the ph
be formerly proved.170
168 G.9963 Raphael Paul@Makongojo v R, Criminal Appeal No.250 of 2017
CAT (unreported).
169 Efraim Lutambi vs R, Criminal Appeal No. 30 of 1996 (unreported),
Semburi Musa vs Republic, Criminal Appeal No. 236 of 2020 CAT
(unreported), Jackson Daudi vs Republic, Criminal Appeal No. 111 of 2002
CAT (unreported), Joseph Munene and Ally Hassani VS. R Criminal Appeal
No. 109 of 2002 CAT (unreported).
170 Mgonchori (Bonchori) Mwita Gesune vs Republic, Criminal Appeal No.
410 of 2017 CAT (unreported).

67
6.4 Procedures of Preliminary Hearing
Pursuant to section 192 of the CPA and several decided cases,

the following procedure is to be followed when conducting
preliminary-
(i) The court explains to the accused person if he is
not represented the nature and purpose of the
preliminary hearing.
(ii) The prosecution reads facts constituting elements

of the offence charged and tender any document(s)
which the prosecution in its opinion thinks can be
tendered at this stage.171
(iii) The court asks the accused on the basis of the facts
read by the prosecution, which matters are not in
dispute.172
(iv) The court lists down all matters which are not in
dispute on the basis of which a Memorandum of
matters agreed shall be prepared, subject to CR
Form No. 14 of the Criminal Procedure (Approved
Forms) G.N 429 of 2017.
(v) At the conclusion of a preliminary hearing, the

court shall prepare a memorandum of the matters
agreed
(vi) The court reads over and explains to the accused

the memorandum of agreed facts, in a language that
he understands, and require it to be signed by the
171 MT 7479 SGT Benjamin Holela vs R (1992) TLR. 121, Mwita Kigumbe
Mwita and another V R, Cr.App.No. 63 of 2015 CAT Mwanza (unreported)
172 Clement Pancras vs Republic, Criminal Appeal No. 321 of 2013 CAT
Mwanza (Unreproted) at pg. 9 Tabu Nyanda @Katwiga V Republic, Criminal
Appeal No.220 of 2004 CAT Mwanza (unreported). PG. 14&15

accused and his advocate (where applicable), the

State Attorney (prosecutor) and the presiding
Magistrate himself. Failure to read and explain the
same to the accused before they are signed is fatal
and may vitiate the preliminary hearing.173
6.5 Omission to conduct Ph
As a general rule, Preliminary hearing is a mandatory

requirement, but failure to conduct it or if conducted
improperly, does not always vitiate the proceedings of the
trial if the accused was not prejudiced by it. The test is
whether the accused was prejudiced by that omission.174
6.6 Listing witnesses and exhibits during ph
During preliminary hearing in subordinate courts, it is not

a requirement of law to list witnesses intended to be called
during hearing or exhibits. Furthermore, the prosecution is
not barred from calling any witness or tender exhibit which
was not mention during preliminary hearing.175
6.7 Disclosure of Prosecution case
173 Ntagalinda@Koro v Republic, Criminal Appeal No. 312 of 2015, CAT,

Bukoba (unreported), at pg.11 and 12 and the case of MT 7479 SGT Benjamin
Holela vs R (1992) TLR. 121 Ezra Mkota and Another v r Criminal Appeal
no.115 of 2015 CAT (unreported) pg.9
174 Benard Masumbuko Shio and another vs. Republic, Criminal Appeal No.
213 of 2007 CAT, (Unreported), Director of Public Prosecutions vs Jaba John,
Criminal case No. 206 of 2020 CAT (unreported), Joseph Munene & Ally
Hassani v Republic [2005] TLR 141, Kapten Mwaipungu vs R, Criminal
Appeal No. 85/2007(unreported), Efraim Lutambi v Republic [2000] TLR 265.
175 Leonard Joseph Nyanda v R, Cr.App No.186 CAT (unreported), Goodluck
Aloyce v R Cr App No.459 of 2019 CAT (unreported),Jackson Daudi vs
Republic, Criminal Appeal No.111 of 2002 CAT (unreported), Yusuph Nchira
vs Dpp, Criminal Appeal No. 174 of 2007 CAT (unreported).

69
This refers to the situation where the prosecution discloses

to the accused person the evidence intended to be used
against him, in order for him to know his case and be able
to prepare for defence or corss-examination of prosecution
witnesses. In our legal system, in Subordinate Courts in
particular, disclosure is limited only to statements of a
person who reported the allegations to the police station
and if the prosecution intends to call him as a witnesse
during trial.176
This is unlike what happens in High Court trials, where

during committal stage, it is mandatory for the prosecution
to avail to the accused person the evidence intended to be
relied upon during hearing.177 It is sometimes argued that,
limited disclosure in subordinate courts (as
aforementioned), does not prejudice the accused to know
his case since facts narrated during preliminary hearing
places him in a position to know the case and how he may
defend it (emphasis mine).
6.8 Disclosures in the Juvenile Court
Disclosure of prosecution case in Juvenile Courts is not

limited as it is in ordinary subordinate courts. In Juvenile
Courts disclosure is absolute. Rule 36(1) (2) and (3) of the Law
of the Child (Juvenile Court Procedure) Rules 2016 requires the
prosecution to file details of prosecution case in
duplicate to the court before preliminary hearing, and the
court shall supply the same to the child or his
representative before first hearing. The details of the
prosecution case shall include-
176 Section 9(3) and 10(3) of the CPARashid Mohamed Sellungwi vs Republic,
Criminal Appeal NO.456 of 2021 CAT (unreported) pg.7
177 sections 245(7), 246 (2), and 289of the CPA and 29(7) of the EOCCA

(a) The charge

(b) A statement of facts
(c) Any document or extract on which the case will
be baased,and
(d) Any previous convictions of the child.

71
PART 7
PART 7
HEARINGSTAGE
HEARING STAGE
7.1 Appearance of parties
After preliminary hearing has been conducted, hearing of

the case begings by the prosecution side calling witnesses
to prove the charge. Witnesses are procured through court
summonses (subpoena). Disobedience of such summonses
is disobedience to court orders, and if there is no good
reason to do so, it may attract legal consequences on the
part of the person to whom it was directed.178
Practice requires that, names and addresses of witnesses

should be communicated to the court at a reasonable time
before the hearing date, in order for it to make an order
through summones for such witnesses to appear on the
date scheduled.
Failure to obey court summonses without good reasons

may attract criminal charges against the person to whom it
was directed, as provided under section 124 of the Penal Code
Provides which states:-
“A person who disobeya any order, warrant or

command duly made, issued or given by a court, an
officer or person acting in any public capacity and duly
authorized in that behalf, is guilty of an offence and is
liable, unless any other penalty or mode or proceeding
is expressly prescribed in respect of that disobedience,
to imprisonment for two years.”
178 Hapyness John and 3 others vs Republic, Criminal Case NO.304/14 of

2022, CAT (unreported) pg.12.

7.2 None appearance of the complainant
Where on the date of hearing the accused person appears

at a time and place required in obedience of the order of
the court, but the complainant (the prosecution) having
had notice of the same, does not appear, the court shall
dismiss the charge and discharge the accused person,
unless for some reason, it shall think it proper to adjourn
hearing of the case until some other date as it deems fit.179
And where the court dismisses the charge and discharges

the accused as aforesaid above, the complainant
(prosecution) may, within thirty days from the date of
dismissal, file an application for re-institution of the charge
and the court may upon satisfaction that his absence was
due to reasons out of his control or could not within the
circumstances have control, grant application for re-
institution of the charge and proceedings, if any.180
7.3 None appearance of accused person
Generally, prior to closure of prosecution case where the

accused person does not appear at a time and place of
hearing, the court may proceed with hearing pursuant to
section 226 (2) of the CPA in his absence as if he was present
and may either refrain from convicting or convict him in
his absence.
However, if he doesn’t appear after closure of

prosecution’s case, the applicable provision to proceed in
his absence is section 227 of the CPA.181

181 Adam Angelius Mpondi vs Republic, Criminal Appeal No. 180 of 2018,
CAT (unreported), Tagara Makongoro and two another vs. Republic, Criminal

73
If the surelty appears to show cause why he has not

appeared, the court is required to adjourn the case to
another date. A scenario occurred in the case of Rashid
Mohamed Sellungwi vs Republic,182 where the surelty
appeared and gave the reason that the accused was sick.
The court proceeded on to receive the testimony of the
witness anyway in absence of the accused. When the matter
came to the Court of Appeal, it was held to be fatal.
An important aspect to note out of these two sections is

that, in case the accused is convicted and sentenced in his
absence, a warrant of arrest will be issued to uprehand him
in order to serve the sentence pronounced against him.
Upon being uprehended, before being taken to prison to
serve the sentence, he must be brought before the trial
court to show cause on the reason of his absence. This is a
component of natural justice based on the right to be heard
perhaps he may have a probable defence which he had no
control of to enter appearance in court on the days he was
absent. Failure to comply with this requirement will vitiates
sentence entered against him.183
Appeal No. 126 of 2015, CAT (unreported), Severine Kimatare vs The

Republic, Criminal Appeal No. 279 of 2006, CAT(unreported), Loningo Sangau
vs The Republic, Criminal Appeal No. 396 of 2013, CAT (unreported), Olonyo
Lemuna and Lekitoni Lemuna v Republic [1994] TLR 54 (CA), Mrisho Salum v
Republic 1991 TLR 158 (HC), Shija Juma vs Republic, Criminal Appeal No.
383 of 2015, CAT (Unreported), Marwa Mahende v Republic (1998) TLR 249,
Magoiga Magutu@Wansima vs Republic, Cr. App. No. 65 of 2015 CAT
(unreported)
182 Rashid Mohamed Sellungwi vs Republic, Criminal Appeal NO.456 of 2021

183 Ibid, see also Bernard Matutu v R Criminal Appeal No.13 of 2018 CAT
(unreported)

7.4 Case for the Prosecution
When both partie are present in court at the time and

place scheduled for hearing, it is the prosecution side
which opens the case and proceeds to lead witnesses to
adduce evidence in support of the charge. The prosecution
side starts because it is one which instituted the case and
also bears the onus of proof.184
The procedure involves three types of examinations

namely; examination in chief (direct examination), cross-
examination and Re-examination.
7.5 Competence of witness to testify
Pursuant to section 127(1) of the TEA, every person is

competent to testify unless the court considers that he is
incapable of understanding the questions put to him or of
giving rational answers to those questions by reason of
tender age, extreme old age, disease or any other similar
cause.
And as long as a person meets the criterion above, he is
entitled to credence and must be believed and his
testimony accepted unless there are good and cogen
reasons for not believing him.185
7.6 Dumb Witnesses
A dumb witness may give his evidence in any other

manner in which he can make it intelligible, such as by
writing or by signs; but such writing must be written and
184 Patrick Kiage, Essentials of Criminal Procedure in Kenya, 2010

185 Goodluck Kyando v. R [2006]

75
the signs made, in open court. The evidence given in such

manners shall be deemed to be oral evidence.186
7.7 Compellability of witnesses
Persuant to section 130(1) of the TEA, where a person

charged with an offence is the husband or the wife, he or
she is competent but not compellable witness.187
A spouse can testify against fellow spouse only after she or

he has been informed by the court about the effect of
giving such evidence and given the right to decide whether
or not to give such evidence. In Matei joseph vs Republic
[1993] TLR 152 it was held that,
the evidence of a spouse who has been compelled

to testify against another spouse in a criminal case
contrary to section 130 of the Evidence Act, 1967,
is inadmissible and of no effece.
However, section 130(2) of TEA provides that, spouses are

competent and compellable witnesses in any case where the
person charged is charged with an offence under Chapter
XV of the Penal Code or under the Law of Marriage Act; OR in
any case where the person charged is charged in respect of
an act or omission affecting the person or property of the
wife or husband, or any of the wives of a polygamous
marriage of that person or the children of either or any of
them.188

187 Zamir Rahimu vs Republic, criminal Appeal No.418 of 2018 CAT
(unreported).
188 Alex Minani and two others vs Republic, Criminal Appeal No. 275 of 2019,
CAT (unreported), Manyanda Ncheya vs Republic, Criminal Appeal No. 437 of

2017, CAT (unreported), Zamir Rahimu vs Republic, Criminal Appeal No. 418
of 2018, CAT (unreported), Matei Joseph vs R [1993] TLR 152

7.8 Number and discretion to call witnesses
When proving a criminal charge, there is no legal

requirement for the prosecution to call a specific number of
witnesses.189
Although the prosecution is expected to call those who can

prove the charge leaving no gaps in evidence, generally they
are at liberty to call whichever number they want, because
even a single witness can be relied upon to convict the
accused if the court believes on his credibility, competence
and demeanor.190
This is supported more by section 143 of TEA, where it

provides;
Subject to the provisions of any other written law,

no particular number of witnesses shall in any case
be required for the proof of any fact.
However, although the prosecution is at liberty to call any

number of witnesses as they wish for their case,that
discretion is not unfettered, the discretion is limited by the
principle of promoting a fair trial. If such witnesses are
within reachbut are not called without sufficient reason
beign shown, the court may draw an inference adverse to
their case. This happens when a material witness is not
called hence leaving missing links in a case.191
189 Yohanis Msigwa v. Republic [1990] T.L.R. 148 and

Hassan Juma Kanenyera v. Republic [1992] T.L.R. 100.
190 Siaba Mswaki vs Republic, Criminal Appeal No.401 of 2019 CAT
(unreported) pg.10
191 Emmanuel Kabelele vs Republic, Criminal Appeal No.536 of 2017 CAT
(unreported) pg.19, Kassim Arimu@Mbawala vs R, Criminal Appeal No.607 of

2021 CAT (Unreported) pg.10, Azizi Abdallah v. Republic [1991] TLR 71, Azizi
Abdallah v. Republic [1991] TLR 71 (at p.72)

77
7.9 Evidence of single witness
The evidence of a single witness may suffice to prove a

case; however such evidence is to be handled with much
care. A trial court should take extra care and satisfy itself on
the creditworthiness of that single witness before arriving at
a conviction.192
7.10 Witnesses are entitled to credence
It is trile law that, every witness is entitled to credence and

must be believed and his testimony acceptess, unless his
evidence is improbable or implausible or materially
contradicted by the evidence of another witness or
witnesses.193 This means, if the trial court decides not to
believe the witness’s testimony, it must assign cogent reason
for doing so.194
7.11 Witness’s oath/affirmation
It is mandatory requirement under section 198(1) of the CPA

for a witness to be sworn or affirmed prior to adducing
evidence in court. Swearing is for Christian witnesses while
affirmation is for Muslims or other religions other than
Christianity, or if he is a pagan.
Subject to requirements under section 127(2) of TEA in

respect of a child of tender age, failure to observe the
192 Phinias Wilson & Two Otehrs v Republic, Criminal Appeal NO. 149 of
2015, CAT (unreported), Simon Cleophace Bangilana and another v Rep,

Criminal Appeal No.442 of 2015, CAT (unreported), Yohanis Msigwa V.
Republic (1983) TLR 52, Hassan Juma Kanenyera v. Republic (1992) TLR 100
193 Goodluck Kyando vs Republic [2006] TLR 363
194194 Shani Chamwela Suleiman vs Republi, criminal Appeal No.481 of 2021
CAT (unreported) pg.9, Soma Breki vs Republic, Criminal Appeal No.92 of

2020 CAT (unreported) pg.12, Nimo Samu vs DPP, Criminal Appeal No.31 of

requirement of section 198 of the CPA lowers the the value

of the evidence adduced and invites the appeal court to
expunge it from the record.195
7.12 Evidence of a child of tender age
A child of tender age, as defined by section 127(4) of TEA is

one whose apparent age is not more than fourteen years.
Section 127(2) of TEA permits this type of a person to be a
witness in court either on oath or affirmation, or without
oath or affirmation but uon promising to tell the truth, not
lies.196
What is required of the trial Magistrate before a child gives

testimony in court is to ask the child preliminary questions
to satisfy himself that the child understands the nature of
oath or affirmation. And upon such satisfaction, he may
opt either of the following;197
(i) if the child understands the nature and meaning of

an oath, he should give evidence on oath or
affirmation, or
195 David Livingstone Simkwai and eight (8) others vs The Republic, Criminal
Appeal No. 146 of 2016 CAT (Unreported), Abas Kondo Gede vs Republic,
Criminal Appeal No. 472 of 2017 CAT (unreported), Mawazo Mohamed Nyoni
and two (2) others vs The Republic, Criminal Appeal No, 184 of 2018 CAT
(unreported), Amos Seleman vs Republic, Criminal Appeal No. 267 of. 2015,
CAT (unreported), Janeroza d/o Petro vs The Republic, Criminal Appeal No.
269 of 2016, CAT (unreported)
196 John Ngonda vs Republic, Crminal Apeal No.45 of 2020 CAT
(unreported), Wambura Kiginga v Republic, Criminal Appeal No. 301 of 2018
CAT (unreported), Menald Wenela vs Director of Prosecutions, Criminal
Appeal No. 336 of 2018, CAT (Unreported), Shaban Said Likubu vs Republic,
Criminal Appeal No. 228 of 2020, CAT (unreported), Bashiru Salumu Sudi vs
The Republic, Criminal Appeal No. 379 of 2018, CAT (Unreported)
197 Ramson Peter Ondile vs Republic, Criminal Appeal No.84 of 2021 CAT
(unreported)

79
(ii) If he does not understand the nature and meaning

of an oath, he may testify without oath or
affirmation but will be required to promise to tell
the truth and not to tell lies.
7.13 Refractory witness
This refers to a witness who, without sufficient excuse,

refuses to swear/affirm, having been sworn/affirmed
refuses to answer questions put to him, refuses or neglects
to produce any document or thing he is required to
produce or refuses to sign his deposition.198
The manner of dealing with a reflectory witness is for the

court to adjourn the case for a period not exceeding eight
(8) days and may in the meantime commit such witness to
prison unless he sooner consents to do what is required of
him. He will keep on being committed to prision in the
interval of the aforementioned period over and over until
when he consents to do what is required of him as a
witness.199
7.14 Hostile Witnesses
A hostile witness is a witness who manifests hostility or

prejudice under examination in-chief against the party who
called him.200 The governing provision where a witness
turns hostile against the party who called him is section 163
TEA which states:-
“The Court may, in its discreation, permit the

person who calls a witness to put any question to
198 Section 199(1)(a)-(d) of the CPA

200 NPS Criminal Prosecutions Manual, 2022

him which might be put in cross-examination by

the adverse party”.
Where a witness turns hostile against the party who called

him, the remedy is to make an application to the trial court
to declare him hostile so that his evidence can be treated
unreliable.201
7.15 Procedure for declaring a witness hostile
The following procedure may be used to declare a witness

hostile.202
(1) Make up your mind to treat him hostile.
(2) Show a copy of his previous statement to the Court.
(3) Apply to the court a leave to treat him hostile.
(4) The court to give the opposite side an opportunity

to be heard in respect of the application.
(5) After comparing and contrasting the evidence of the

witness and the contents of his statement, and after
considering the witness demeanour in the witness
box, as well as the objections, if any, from the
opposite party, the court should make its ruling on
the application.
Shiguye and Another v. Republic [1975] IEA 191 (CAD)

201
202Nehemia Rwechungura v Republic, Criminal Appeal NO.71 of 2020 CAT
Bukoba (unreported), Republic vs Donatus Dominic@Ishengoma&6 others,
Criminal Appeal No.262 of 2018 CAT (unreported), Jumanne Athuman Mketo
V R [1982] T.L.R 232, Inspector Baraka Hongoli & Others vs Republic,
Criminal Appeal No. 238 of 2014 CAT (Unreported) pg.18

81
(6) If the court grants it, the applicant should then

proceed to attempt to discredit the evidence of the
witness by way of cross-examination.”
(7) After thorough cross-examination, the matter is left

to the court to decide whether, given circumstances
of the case and the counter hostility made, the
witness is to be declared hostile or not. It is the court
which will finally declare him hostile or otherwise
given what has transpired above.
(8) The court may declare such a witness hostile, the

effect of which his evidence will be treated unreliable
for want of credibility.
The essence of all this process in declaring him hostile is

to invite the Court to treat that evidence unreliable. It iwas
further stated in Amiri Mohamed V.R203 that:-
"It is improper to use evidence of a hostile witness

which has to be thrown out in total."
7.16 Refreshing memory of a witness
Section 168 of the TEA provides that, a witness may, while

under examination, refresh his memory by referringto any
writing made by himself or any other person, at the time of
the transaction concerning which he is questioned or so
soon afterwards that the court considers it likely that the
transaction was at the time fresh in his memory.
203 Amiri Mohamed V.R. (1994) TLR 138 CAT

7.17 Manner of recording Evidence
When a witness is adducing evidence in court, pursuant to

section 210(1) (b) of the CPA, the Magistrate is required to
record his evidence in the language of the court and in the
form of a narration. However, sometimes in his discretion,
may take down or cause to be taken down any particular
question and answer.204
7.18 Compliance of Section 210(3) of CPA
At the end of the testimony, the law requires the

Magistrate to inform the witness that he is entitled to have
his evidence read over to him and if a witness asks that he
evidence be read over to him, the Magistrate shall record
any comment which the witness may make concerning his
evidence.205
7.19 Authentication of proceedings
The evidence of each witness shall be taken down in

writing in the language of the court by the magistrate or in
his presence and hearing and under his personal direction
and superintendence and ashall be signed by him to form
part of the record. 206
204 Juma Bakari vs Republic, Criminal Appeal NO. 362 “B” of 2009, CAT,
Fredy Sichembe vs Republic, Criminal Appeal No. 148 of 2018, CAT
(unreported)
205 William Kisanga vs Republic, Criminal Appeal No. 90 of 2017, CAT
(unreported), Flano Alphonce Masalu@Singu and 4 others vs Republic (supra),
Yuda John vs Rep, Criminal Appeal No.238 of 2017 CAT (unreported), Amani
Bwire Kilunga vs Rep, Criminal Appeal No.372 of 2019 CAT (unreported).
206 Mohamed Nuru Adamu and six others vs Republic, Criminal Appeal No.
130 of 2019, CAT (unreported), Hando Dawido vs Republic, Criminal Case
No. 107 of 2018, CAT (unreported), Robert Majendo vs Republic, Criminal
Appeal No. 428 of 2017, CAT (unreported), Andrea Bernardo & Another vs R
Criminal Appeal No. 128 of 2015, CAT (unreported) pg.10, Yohana Mussa
Makubi&Another v R Criminal Appeal No.556 of 2015 CAT (unreported)

83
The rationale for signing/authentication is to ensure that

the trial proceedings are authentic and not tainted.207
7.20 Examination of Witnesses
The examination of witnesses is the process of obtaining

evidence from the witness during the hearing of the case. It
is governed by sections 144 – 147 of TEA. It is devided into
three, namely, examination in chief, cross-examination and
re-examination. Also, under section 176(1) of TEA, the court
may ask questions after the three examinations have been
conducted.
7.20.1 Presence of co-witness during testimony
A witness cannot be locked out from testifying in a case

which he was present in court at the time when another
witness of the same case was testifying. Case laws have
established that the court is required to take his evidence
and the fact of his prior inopportune presence in court
shall only go to the weight that is to be attached on such
evidence by the court.208
7.20.2 Examination in chief
Examination in chief is the first questioning of a witness in

a trial or other proceeding conducted by a party who called
the witness to testify. 209
207 section 210 (1) (a) of the CPA

208 Waithaka and another v republic [1972] EA 184
209 Black's Law Dictionary, 8th Edition Edited by Bryan A. Garner, at page
492], sections 146 and 147 (1) and (2) of TEA

Its purpose is to let the witness give all material facts

which he knows about the incident of the case of which
the party who called him depends on to support his case.210
Direct/leading questions are prohibited at this stage, only

indirect questions must be asked.211
7.20.3 Cross-examination
This is a stage which follows after examination in chief is

finished and is governed by section 146(2) of the TEA. In
cross-examination, it is allowed to ask any question so long
as it tends to;
(a) Ttest the witness’s veracity,

(b) Discover who he is and what is his position in life,or
(c) Shake his credit by injuring his character.
Unlike examination in chief and re-examination, leading

questions are allowed and encouraged at this stage.212
7.20.4 Failure to cross-examine important Matters
During examination in chief, a witness may adduce

material facts which incriminate the accused or build the
case for prosecution. It is therefore expected of the
accused person to cross-examine such witnesses on such
particular facts to challenge what they adduce. It is trite law
that, failure by the accused person to cross-examine the
prosecution’s witness on a material fact, will mean that he
210 Kassim Salimu Mnyukwa vs R, Cr.Appeal 405 of 2019, CAT (unreported)

211 Section 151(1) of the Evdience Act [Cap. 6 R.E 2022]
212 Section155 of the Tanzania Evidence Act [Cap.6 R.E 2002]

85
tacitly accepts what that witness said on that point during

his examination in chief.213
7.20.5 Re-examination
This is the examination of a witness, subsequent to the

cross-examination, by the party who called him.214 Only
matters which have arisen during cross examination can be
re-examined. The essence of re-examination is to afford
the witness an opportunity to;
(i) To give an opportunity to reconcile the discrepancies,

if any, between the statements in examination in chief
and cross-examination.
(ii) To explain any statemet inadvertently made in cross-

examination.
(iii) To remove any ambiguity in the deposition or

suspicion so cast on the evidence by cross-
examination.
Simply to say, re-examination gives the party who called

such particular witness an opportunity to cover up the
holes or repair damages caused during cross-examination.
This means, if no damage has been made in the testimony
adduced during examination in chief, there will be no need
to re-examine.
7.20.6 Raising new fact in Re-examination
213 Bakari Abdallah Masudi vs R Criminal Appeal No. 126 of 2017 CAT
(unreported) pg.11, Paulo Antony vs Republic, Criminal Appeal NO. 189 of

214 S.146 (3) of Tanzania Evidence Act [Cap.6 R.E 2022].

The party who re-examines his witness is required to

confine himself to matters which arose during cross-
examination. Questioning on matters which did not arise
out of cross-examination or which could have been asked
in examination in chief is prohibited. However, by
permission of the court, new matters may be introduced in
re-examination but the adverse party has a right to further
cross-examine upon new matter for the sake of fair trial.215
7.20.7 Questions by the Court
The trial Magistrate is required to understand the case

clearly to enable him to discover the truth of the matter,
irrespective of the prosecution’s or defence’s weaknesses in
presenting evidence in court. Based on that, section 176(1) of
the TEA gives power to the trial Magistrate to ask any
question, in any form, at any time, of any witness or of the
parties about any fact relevant or irrelevant and may order
the production of any document or thing; and neither the
parties nor their agents shall be entitled to make any
objection to any such question or order nor, without the
leave of the court, to cross-examine any witness upon any
answer given in reply to any such questions.
7.21 Statements of witnesses who cannot be called
In any criminal proceedings, where direct oral evidence of

a relevant fact would be admissible, a written or electronic
statement by any person who is, or may be a witness shall
be admissible in evidence as proof of the relevant fact
contained in it in lieu of direct oral evidence. However, for
such statements to be admissible in evidence in lieu of oral
215 Mustapha Khamis v Republic Criminal Appeal No. 70 of 2016 CAT

(unreported) pg.18&19, and S. 147(3) of the Evidence Act [Cap.6 R.E 2022]

87
direct evidence, the conditions stipulated under section 34B

(2) (a)-(f) of the TEA must cumulatively be complied with.216
Some court of appeal decisions have interpreted section 34B

(2) (a)-(f) of the TEA that, upon fulfillment of all conditions
stipulated therein, it does not require corroboration in
order to be relied upon.217 However, another position is
that, that is a statement of a person who cannot appear to
be cross-examined nor assessed the demeanour by the
court; so based on that it cannot be relied upon without
corroboration.218
216 Adinardi Iddy Salim and another vs Republic, Criminal Appeal No.298 of
2018 CAT Arusha (unreported) pg.19, Willy Jengela vs Republic, Criminal
Appeal No. 17 of 2015 CAT (unreported)pg.7, Shida Luanda Aidan@Emmilian
v R Cr. Ap No. 192 of 2014 CAT (Unreported) pg.13.
217 Omary Mohamed China Vs Republic, Criminal Appeal No. 230 of 2004,
CAT (unreported)
218 William Onyango Nganyi @ Dadii and 5others vs Republic, Criminal
Appeal No. 9 of 2016, CAT (unreported)

PART88
PART
CLOSEOF
CLOSE OFPROSECUTION
PROSECUTION CASE
CASE
8.1 Introduction
The prosecution may close their case upon satisfaction

that all witnesses intended to be called have testified and
and exhibits tendered. That indicates that they have no
further witnesses to call or evidences to adduce in support
of the charge. The trial Magistrate will then be requied to
record such declaration and proceed to prepare a ruling
whether or not there is any case for the accused to
answer/defend.
8.2 Magistrate cannot close the case
It is settled principle under our legal system that a

Magistrate or Judge has no power to close either the
prosecution’s or defence’s cases. Both, the prosecution and
defence are at liberty to close their respective cases when
they are satisfied that the evidence intended have been
adduced in court.219
8.3 Ruling of a case to answer
Under section 230 of the CPA, if at the close of the evidence

in support of the charge, it appears to the court that a case
is not made out against the accused person sufficiently to
require him to make a defence either in relation to the
offence with which he is charged or in relation to any other
offence of which, under the provisions of sections 300 to
309 of the CPA he is liable to be convicted, the court shall
219 Abdallah Kondo vs Republic, Criminal Appeal No. 322 of 2015 CAT
(unreported), Director of Public Prosecutions vs Idd Ramadhani Feruzi,
Criminal Appeal No. 154 of 2011 CAT (unreported)

89
write a ruling to dismiss the charge and acquit the accused

person.220
If he is found with a case to answer and therefore required

to enter defence, section 231(1) of the CPA mandatorily
requires the court to explain to him the substance of the
charge and inform him of the following rights, of which its
reply shall be recorded to form part of the records of the
proceedings: -221
(i) To give evidence whether or not on oath or

affirmation on his own behalf;
(ii)To call witnesses in his defence;
(iii) Whether he has exhibits to tender.
Failure to comply with section 231(1) of the CPA is a fatal

irregularity which vitiates the proceedings,222 although,
depending on circumstance of each case, some omission
may be curable under section 388 of TEA where no
miscarriage of justice is occassioned.223
220 Section 229 & 230 of the CPA and See R.V. Makuzi Zaid and anor (1969)
TLR 249 Georges CJ quoting Bamaulal P. Bhat V.R (1957) EA 332. In the case
of Abdallah Kondo vs Rep, Cr. Appeal No. 322 of 2015 CAT (unreported)
221 Abdallah Kondo (supra), Charles Yona vs Republic, Criminal Appeal No.
79 of 2019, CAT (unreported, Ally Juma Faizi@Mpemba & Another vs
Republic, Criminal Appeal No. 401 of 2013 CAT (unreported)
222 Ulilo Hassan v. Republic, Criminal Appeal No.196 of 2018 (unreported)
223 Chokera Mwita vs Republic, Criminal Appeal NO. 17 of 2010 CAT
(unreported) pg.5, Salum Said Matangwa @ Pangadufu Versus the Republic,
Criminal Appeal No. 292 Of 2018 CAT, (Unreported)

PART
PART99
CASE
CASEFOR
FOR THE
THE DEFENCE
DEFENCE
9.1 Opportunity to present his defence
After the rights under section 231 of the CPA, the accused
may present his defence case and may call witnesses and
tendering exhibits in support of it.224
9.2 General denial which casts no doubts
This happens when the accused person denies everything

alleged generally without explanations to cast doubts on
the charge. Out of all accusations the accused may face, he
is only required to cast some doubts on the charge and the
rest is left to the prosecution prove the charge. Any doubt
in a charge may be taken in his benefit. Although the
burden of proof in most cases does not shift to the accused
person, he is not expected to deny everything generally
thereby leaving the prosecution’s case doubt free. Should
the prosecution’s case remain doubt - free, it means the
case against him stands firm. A self-serving defence of
general denial would naturally disintergrate when weighed
against the prosecution case, and the court may reject it.225
9.3 Failure to enter defence
Where the accused person is given an opportunity to

defence his case, and elects to remain silent, the court shall
be entitled to draw an adverse inference against him.
Likewise, the court as well as the prosecution shall be
224Section 231(4) CPA

225Ngaru Joseph & another vs Republic, Criminal appeal No.172 of 2019 CAT
(unreported) pg.19,

91
permitted to comment on the failure by the accused person

to give evidence.226
In MT.59505 SGT.Aziz Athuman Yusuf vs

Republic227, when the case reached the stage of defence,
the appellant refrained from entering defence. The trial
court having been informed him in terms of section 231(1) of
the CPA drew an adverse inference against him right away.
At pg.13 the Court of Appeal stated:-
“As the appellant was afforded an opportunity to

present his case and failed to exercise it at his own
election, his complaint in ground one is misplaced”.
9.4 Lies of an accused person in defence
Sometimes during defence, the accused may deliberately

tell lies, sometimes for a just cause or out of shame or just
to conceal a disgraceful behavior or for whatever other
reasons. The positon of law is that, generally, lies of an
accused person per-se do not prove his guilty or even
corroborate prosecution’s case even if it is mmaterial. The
burden to prove the guilty still lies on the prosecution.
However, the effects of lies told by the accused person are
to lower the credibility of his testimony, especially where it
is on material issue. Under such circumstances, it may
corroborate the prosecution’s case.228
226Section 231(2) & (3) of the CPA

227MT.59505 SGT.Aziz Athuman Yusuf vs Republic, Criminal Appeal No.324
of 2019 CAT (unreported) pg.13
228 William Onyango Nganyi@Dadii and 5 others vs Republic, Criminal
Appeal No.09 of 2016 CAT (unreported) pg.43, Aliyu Dauda@Hassan &
2others vs Republic, Criminal Appeal No.282 of 2019 CAT (unreported)pg 34,
Amitabachan Machaga@Gorong’ondo vs Republic, Criminal Appeal No.271 of
2017 CAT (unreported) pg.16, Twaha Elias Mwandugu vs Republic [2000] TLR
277 CA, Paschal Mwita and 2 others V. R. (1993) TLR 295 CAT, R.V.
Erunasoni Sekoni s/o Eria and another (1947) 14 EACA 74

Borrowing the principle stated in the English case of

Edwards v The Queen (1993) 178 CLR 193, 68, ALJR
40, for lies to corroborate the prosecution’s case, has to
meet the following test;
(a) If it is proved to have been made deliberate.
(b) If it relates to a material issue
(c) If it springs from a realization of guilt and a fear of

the truth and if there are other evidences other
than that to be corroborated, which prove its
falsehood,
(d) The statement must be clearly shown to be a lie by

evidence other than that of the witness who is to
be corroborated.
9.5 Accused to declare his case closed
Just like what happens for the prosecution’s case, it is the

accused person who has the power to declare his case
closed and the trial Magistrate is required to record such
declaration. Where numerous accused persons are charged
together, each one of them individually must declare to
close his case and the Magistrate must record that assertion
forthwith. Failure by the Magistrate to record declaration
to close the case individually is fatal vitiating the trial.
Appeal courts rely on proceedings of which if they are
silent on a particular required matter, it means that
requirement was not fulfilled irrespective of the fact that it
was not anyo other’s fault but the Magistrate’s.229
229 Ally Juma Faizi @ Mpemba & Another vs Republic, Criminal Appeal
No.401 of 2013 CAT (unreported)

93
PART
PART10
10
JUDGMENT
JUDGMENT
10.1 Meaning and criteria of a judgment
In a criminal case, a judgment is the final decision for the

court as pertains the guilt or otherwise of the accused
person.230 For it to qualify as proper, it must meet the
following criteria;-
(a) It must contain the point or points for determination,

the decision thereon and the reasons for the decision
and and shall be dated and signed by the presiding
officer as of the date on which was pronounced in the
open court.231
(b) Case laws have established further that, it must show

that no material portion of the evidence laid before
the court has been ignored.232
(c) It ought to contain an objective evaluation of the

entire evidence before it by considering both
prosecution and defence cases.233
Omission to meet the aforementioned creteria does not

vitiate the whole proceedings and judgment; rather, it may
230 Patrick Kiage, Essentials of Criminal Procedure in Kenya, 2010 pg.169

231 George Mingwe V.R (1989) TRL 10 & section 312(1) of the CPA
232 Hamis Rajab Dibagula vs R, Cr. Appeal No. 53 of 2001, CAT (unreported)
233 Michael s/o Joseph vs Republic, Criminal Appeal No. 506 of 2016, CAT
Tabora (unreported), Seleman Nassoro Mpeli vs Republic, Criminal Appeal No.

3 of 2018, CAT (unreported), Emmanuel Aloyce Daffa vs Republic, Criminal
Appeal No. 131 of 2021, CAT (unreported).

be cured by the appellate court stepping into the shoes of

the trial court to perform what was required of it.234
The following are the contents of the judgment;
(1) Heading. This includes the name of the court, case

number, parties to the case, the wording “judgment”
and the name of the presiding Magistrate.
(2) Facts submitted by the prosecution and accused.

This includes analysis of the charge and evidence of
the prosecution’s witnesses, the accused’s defence
and his witnesses (where any).
(3) Issues of determination. The Magistrate draws up

points of determination out of what has been
submitted by the parties. Some call it points of
determination.
(4) Decision on drawn up issues. After drawing up

issues, the Magistrate makes his decision on them in
comparison with the evidence adduced and legal
positions.
(5) Reasons for the decision reached. Here is when

the Magistrate assigns reasons of any decision he has
made. He narrates why he agrees or disagrees with
certain facts adduced by either party. A decision
without reasons may result to a complaint of failure
to consider either the prosecution or defence cases.
234 Hussein Idd and Another vs Republic, [1986] TLR 166, Joseph Leonard
Manyota vs Republic, Criminal Appeal No. 485 of 2015 CAT (unreported),

Ramadhani Abdala @ Namtule vs Republic Criminal Appeal No. 341 of 2019,
CAT (unreported).

95
(6) Final order of conviction or acquittal. If the

accused is found guilty, before pronouncing a
sentence, the court must first convict him, but if
the evidence is weak to sustain a convict, the court
shall acquit him.
(7) Aggravation and Mitigation of a sentence. It is

the time a convicted person is given opportunity to
explain why a particular sentence should not be
imposed to him or why he should receive a lenient
one. It follows after a conviction has been entered
agains the accused and is a mandatory stage before
pronouncing a sentence. The rationale is to assist
the court to pronounce a proper sentence based on
the prevailing cercumstances on the ground in
respect of both parties. The Magistrate must record
aggravating and mitigating factors, and show to
have considered them in the judgement. Failure to
consider such factors may bring up a complaint of
excessive sentence.235
(8) Awarding sentence (where a conviction was

entered).
(9) Signature and date the judgment was pronounced.
10.2 Considering Prosecution & Defence cases
The Magistrate is required to make a critical analysis of

both the prosecution and defence, and weight them against
each other’s evidence. For him to be said to have
considered both the prosecution and defence cases, he is
235 Inspector Baraka Hongoli & Others vs Republic, Criminal Appeal No. 238
of 2014 CAT (unreported) and section 320 of th CPA.

required to assign reasons for the decision of every

important fact in the case as adduced by both the parties.236
Failure to consider defence or prosecution’s case is an

irregularity which vitiates the conviction.237 On the other
hand, an appellate court may step into the shoes of the trial
court upon failure to consider defence of either party,
depending on circumstances of each case, to do what it
was equired of the trial court.238
In Amiri Mohamed v Republic 239 it was held that,
a mere summary of facts of both parties without

objectively evaluating the gist of their value and
weigh it against each other, or in line with that,
without giving reasons as to why he agrees or
disagrees with certain facts, is insufficient.
What distinguishes a judicial decision from administrative

or any other one is that, in judicial decisions reasons for
agreeing or disagreeing with a particular important fact
decided must be assigned. A judicial decision without
reasons becomes arbitrary and deprives the parties of the
information they could rely to challenge it in appeal, among
others. However, the reasons so required must be based on
positions of applicable law and related legal principles.
Case laws have established that, it is one thing to
summarize the evidence of both sides separately and
236 Amiri Mohamed v Republic (1994) TLR 138

237 Abel Masikiti v R, Cri. Appeal No. 24 of 2015, CAT (unreported), pg.9,
238 Hussein Idd and Another vs Republic, [1986] TLR 166, Joseph Leonard
Manyota vs Republic, Criminal Appeal No. 485 of 2015 CAT (unreported),
Ramadhani Abdala @ Namtule vs Republic Criminal Appeal No. 341 of 2019,
CAT (unreported).
239 Amiri Mohamed v Republic (1994) TLR 138

97
another to subject the entire evidence into an objective

evaluation in order to separate the chaff from the grain.240
10.3 Extraneous matters in the judgement
For the purpose of this part, extraneous matters refer to

matters which do not feature in the records of proceedings
in a particular case from which a judgement is composed.241
The Magistrate is required to compose a judgment based

on the actual evidence recorded in the proceedings. It is
dangerous and inadmissible for him to put forward matters
not convassed in evidence. Importing into the judgment
new matters not conversed in evidence is fatal for want of
fair trial as the decision will be based on matters the parties
were not heard of and that cannot escape drawing an
inference of biasness by the Magistrate against either
party.242
Depending on circumstances prevailing on each case,

extraneous matters may either vitiate the entire proceedings
of the trial court or sometimes may be curable depending
on whether the piece of new matter is what was used to
decide the case. In Mohamed Juma Naniye vs Republic,
and Athanas Julias vs Republic,243 forexample, it was
held that, inclusion in to the judgments facts which do not
240Leonard Mwanashoka v R, Cr. Appeal No. 226 of 2014 CAT (unreported).

241 Okethi Okale and Others v. Republic[1965] 1 EA 555
242 Ijumaa Issa @ Athuman vs Republic, Criminal Appeal No.53 of 2021 CAT
(unreported), Geoffrey Ntapanya And Another vs Dpp Criminal Appeal No.
232 of 2019 (unreported), Vallel Palutala vs DPP, Criminal Appeal No.102 of
2019 CAT (unreported) pg.12, Augustino S/O Nandi vs D.P.P. Criminal
Appeal No. 388 of 2017, CAT (unreported), Richard Otieno @ Gullo vs
Republic, Criminal Appeal No. 367 of 2018, CAT (unreported), Petro Kakole
@ Katabi vs Republic, Criminal Appeal NO. 71 of 2015 CAT (unreported)p11
243 Mohamed Juma Naniye vs Republic, Criminal Appeal No.514 of 2020 CAT
(unreported), Athanas Julias vs Rep, Cri. Appeal NO. 498 of 2015 CAT
(unreported) pg.9

feature in the record of proceedings is a fatal irregularity

which vitiates the entire proceedings of a trial court.244
However, as aforesaid, depending on circumstances

prevailing in each case, that omission does not always
vitiate the trial especially where conviction was not based
on such extraneous matters. The appeal court may expunge
that particular piece of extraneous matter and proceed to
consider the evidence which was based to convict the
accused.245
10.4 Weighing contradictions of witnesses
During composition of a judgment, contradictions play a

vital role in determining the strength of the evidence
adduced, and may be used to separate truthfulness or
falsehood of witnesses. However, the law recognizes the
fact that human beings vary in terms of intelligence, ability
to remember and speak, hence contradiction amongst
witnesses cannot be escaped or avoided absolutely in any
particular case and that does not always mean the witness is
not truthful. 246
Sometimes contradictions may be due to normal errors of

observations, such as errors in memory, lapse of time or
mental disposition such as shock and horror at the time of
occurrence etc. The law has come into conclusion that,
contradictions and inconsistencies on matters which do not
244 Vallel palutala vs DPP, Cri. Appeal No.102 of 2019 CAT (unreported)
245 Shomari Mohamed Mkwama vs Republic, Criminal Appeal No.606 of 2021
CAT (unreported), Amani Rabi Kalinga vs Republic, Criminal Appeal No.474
of 2019 CAT (unreported)
246 Armand Guehi V. Republic, Criminal Appeal No. 242 of 2010 (Unreported)
Eliah Bariki vs Republic, Criminal Appeal No. 321 Of 2016, Cat (Unreported

99
go to the root of the matter in contention should not be

used to reject the entire evidence adduced.247
Several other case laws have settled the position that, not
every discrepancy in the prosecution case will cause the
case to flop; in evaluating discrepancies, contradictions and
omissions, the court should not pick out sentences and
consider them in isolation of the rest of the statements. It
has to be established whether such discrepancies and
contradictions are only minor or whether they go to the
root of the matter.248
10.5 Recording of a conviction
Section 235 (1) of the CPA is couched in a mandatory

language that, at the end of trial, if the court is of the
opinion that on the evidence available, the accused person
is guilty, it must proceed further to enter conviction before
proceeding to sentence such person.
In John Zungungeni vs Republic,249 the court stated

that, finding the accused guilty alone does not mean he has
been convicted. A finding of guilty is not a court order of
conviction. This is because a conviction is a specific order
that is to be made after considering the evidence of both
the prosecution and the defence cases, whereas finding a
person guilty is just an expression the trial court makes
247 Marmo Slaa Hofu and others vs Republic, Criminal Appeal No. 246 of 2011
CAT Arusha (unreported), Mohamed Said Matula [1995] TLR
248 Dickson Elia Nsamba Shapwata &. Another v. Republic, CriminalAppeal
No 92 of 2007 (Unreported, Bikolimana Odasi Bimelifasi v R Criminal Appeal

No.269 of 2012 CAT Bukoba (unreported) pg.6, Chrizant John V. Republic,
Criminal Appeal NO. 313 of 2015, CAT Bukoba (unreported) pg.20. In the
case of Mohamed Said Matula V. Republic (1995) TLR 3 and Juma Saimon
Mkondya and Two Others vs Republic, Criminal Appeal No. 35 OF 2013,
CAT, Mbeya (unreported) at pg. 6
249 John Zungungeni vs Republic, criminal Appeal No.281 of 2018 CAT
Shinyanga (unreported

regarding the status of the accused person’s innocence

after determination of the evidence adduced.
It goes without saying that, finding the accused guilty is

only a basis upon which an order convicting him should be
grounded. It is therefore necessary to make an order of
conviction even after having found the accused guilty of
the offence charged, and thereafter a sentence may be
pronounced.250
Depending on circumstances of each case, the remedy for

an omission by the trial court to enter conviction after
finding the accused guilty may result to an order of retrial
or the file to be reverted back to trial court to proceed
from the stage where a conviction is to be entered.251
10.6 Conviction in alternative counts
In situations where a charge contains alternative counts, a

conviction on the alternative count can only be entered if
the prosecution fails to prove the main count; but if the
main count is proved the alternative becomes irelevant.252
The court must make a choice to comvict one of them and

make no finding on the other. The first preference should
be on the main count of which if proved there is no need
to make a finding on the alternative, and if it is not proved,
the alternative is to be determined. The Court cannot
250 John Zungungeni vs Republic(supra)

251 Butogwa John v. R, Criminal Appeal No. 450 of 2017 (unreported), John
Zungungeni vs Republic(ibid), Butongwa John vs Republic, Criminal Appeal
No.450 of 2017 CAT Shinyanga (unreported) pg.6
252 Derick Alphonce and Another vs Republic, Criminal Appeal No. 23 of
2015 CAT Mbeya (unreported), pg.17

101
convict on both counts although it may however acquit on

both if the prosecution fails to prove either of them.253
10.7 Conviction in cognate offences
A cognate offence may be defined as “a lesser offence

that is related to the greater offence because it shows
several of the elements of the greater offence and is of
the same class or category.”254
When excercising the power to substitute offences, the

accused person is entitled to know with certainty and
accuracy, the exact nature of the charge brought against
him, and unless he has this knowledge, the substitution may
prejudice his defence.255
During conviction, an accused person may be convicted of

the cognate (minor/lesser) offence under the following
circumstances:
(a) Although he was not charged with it, he is charged

with an offence consisting of several particulars, a
combination of some only of which constitute a
complete minor offence, and such combination is
proved but the remaining particulars are not
proved.256
253 Republic v Nasa Ginners Ltd [1955] 22 EACA 434, Seifu Bakari v R [1960]
E.A 388(C.A)
254 The Black’s Law Dictionary 9 th Edition page 1186
255 Kulwa Nassoro Mohamed vs Republic, Criminal Appeal No. 183 Of 2018,
CAT DSM (unreported), Richard Estomihi Kimei and Another vs Republic,
Criminal Appeal No. 375 Of 2016. CAT Arusha (unreported), Director of
Public Prosecution vs ACP Abdallah Zombe 8 Others, Criminal Appeal No.
358 of 2013, CAT DSM (unreported), Emma Ngwada vs Republic, Criminal
Appeal No. 406 Of 2013 Cat at Mbeya (unreported).

(b) Where a person is charged with an offence and facts

are proved which reduce it to a minor offence.257
(c) An offence under section 222 of the Penal Code as

minor to the offence of attempted murder under
section 211 thereof.258
However, for an accused person to be convicted of a

minor offence, the charged major offence must narrate the
facts that constitute the minor offence, and in order for an
offence to be cognate, it must be shown that it is of the
same genes and species with the major one.259

259 Godfrey Mwasumbi & Another vs Republic, Criminal Appeal No.29 of
2015 CAT Mbeya (unreported) pg.3 Emma ngwada v Republic, Criminal
Appeal NO. 406 of 2013, CAT Mbeya (unreported) at pg.7

103
PART 11
SENTENCING
SENTENCING
11.1 Introduction
Sentencing means deciding and saying officially what a

punishment will be.260 Sentencing comes after entering
conviction, and after aggravation and mitigation factors
have been given to the court. In order for a sentence to be
justifiable, among others, the charge/information for
which the accused is convicted must be one which creates
a specific offence that can be judicially ascertained and
which prescribes a specific punishment.261
Sometimes sentencing hearing may be conducted. Sentencing

hearing occurs when after conviction but before passing
sentence, the court receives such evidence as it thinks fit,
not for the purpose of backing up the charge whose case
was already closed, but with the intention of informing the
court as to the proper sentence to be passed given the
special surrounding circumstances of the case and the
accused himself.262
11.2 Mandatory and discretionary sentences
It is necessary to observe what sentences are mandatory

and what are discretionary in order to arrive at a proper
one. The powers of the court are limited to the range of
sentences permitted by law. A discreationary sentence is
one which the law provides for a wide discretion to
impose, whereas a mandatory sentence is one which does
260 Cambridge law Dictionary

261 DPP vs Simon G. Marwa and nother [1994] T.L.R 330 CA

not have a wide range of discretion but only to abide by

the predefined sentence in the statute.263
Where punishment for statutory offence is not provided,

the trial court should revert to common law and punish the
convict with imprisonment or fine at its discretion,
provided it does not give an inordinate sentence.264
Caselaws have established that, if the law states “shall be

liable to”, gives the Magistrate or Judge to exercise his
discretion in sentencing depending on the circumstances of
each case after considering both aggravating and mitigating
factors.265 It sets out a discretionary sentence, where as,
where it states “shall be sentenced to…..”, the
punishment so prescribed is mandatory.
11.3 Aggravating and mitigating factors
Generally speaking, aggravating factors refer to factors or

circumstances about the offender or the offence that may
lead to a more severe sentence; whereas, mitigating factors
refers to factors or circumstances about the offender or the
offence that may lead to a less severe sentence.266
Before pronouncing a sentence, the court has to give the

prosecution an opportunity to present aggravating facts or
circumstances (where any) which they believe on their
opinion that will influence a severe sentence. The accused
person thereafter has to be given opportunity to present
263 The Tanzania Sentencing Manual for Judicial Officers

264 Tanzania Sentencing Manual R v. Emmanuel Timothy [1980] TLR 115.
265 Jafari Juma vs Republic, Criminal Appeal NO.252 of 2019 CAT
(unreported), Bahati John vs Republic, Cri. Appeal No.114 of 2019 CAT

(unreported)
266 A Guide to Sentencing in Tasmania, Sentencing Advisory Council 2020.

105
mitigating factors he thinks necessary for the court to

consider to give a lenient sentence. 267
When assessing the extent of a sentence to be imposed,

Magistrates are required to show that they took into
account both aggravating and mitigating factors (where
available). Failure to do so may result to a sentence being
considered excessive.268
The remedy where agravating or mitigating factors are

ignored is for the appellate court to step into the shoes of
the trial court to assess the sentence on its behalf.269
11.3.1 Examples of aggravating factors
1. The accused has previous conviction.

2. The accused is a harbitual offender.
3. The accused premeditated the offence.
4. The injury caused was too severe.
5. The accused caused very griovours harm to the victim.
6. The offence is too serious.
7. The accused does not show any remorse.
8. The accused didn’t plead guilty to reduce time and cost
of the court,
9. The conduct of the accused after the offence.
11.3.2 Examples of Mitigating factors
1. Absence of previous record of conviction.
267 Marco Elias vs R Criminal Appeal N. 460 of 2016 CAT (unreported) pg.6,
R. v Sulemani Saidi and Another [1977] LRT No.29 pg 112, Inspector Baraka
Hongoli & Others vs Rep, Cri Appeal NO.238 of 2014 CAT (unreported),
268 Willy Walosha vs Republic, Criminal Appeal N. 07 of 2002 CAT
(unreported), Daud Manyerere@Makobela vs R Criminal Appeal No.463 of
2016 CAT Mwanza (unreported) pg.12&13.
269 Akida Ramadhan Salehe (supra) & Willy Walosha vs Republic, Criminal
Appeal N. 07 of 2002 CAT (unreported)

2. Time spent in custody prior to the sentence. However,

this is only a mitigating factor to consider before
pronouncement of a sentence; it does not deduct the
amount of sentence so pronounced.270
3. Age of the accused eg. He is a youth who is expected

to contribute to the community, or he is too old to be
imprisoned etc.
4. Role of the victim contributing to the injury.
5. Cooperation of the accused during investigation or

trial.
6. Family background of the offender eg. He is a bread

winner, has many dependants etc.
7. Admission/confession to the offence. Some accuseds

plead guilty to the offence which saves time and
resources that would be used in a full trial.
8. Expression of remose by the offender.
9. Premeditation of the offender. eg. In manslaughter.

11.4 Sentencing in Absentia
This occurs when the Court pronounces a sentence against
the accused person who is absent in court without justified
reasons. The trial court ought to satisfy itself that the
accused’s attendance cannot be secured without undue
delay or expense and the prosecution is accorded an
270 Silvanus Leonard Nguruwe v R (1981) TLR 66, Benadetta Paul v R (1992)
TLR 97, Rashidi Kaniki v R (1993) TLR 258, Yohana Balicheco v R (1994)
TLR and Swalehe Ndugajilungu v R (2005) TLR 94, Sospeter Mayala v R
Criminal appeal No. 318 of 2013 CAT Mwanza (unreported) pg. 8.

107
opportunity to address the court on the appropriate

sentence. And in the even the accused appears or is
arrested after sentencing in absentia, he must be afforded a
right to be heard on the reasons of his absence. If the court
is satisfied that his absence was due to causes beyond his
control, it shall set aside the sentence, proceed to re-
conduct a sentencing hearing and pass an appropriate
sentence in accordance with the provisions of section 236
and 320 of the CPA and section 39 of the PCCPC.271
11.5 Excessive or Inadequate Sentence
If the trial judge makes a proper assessment of the evidence

adduced by both parties together with their aggravating and
mitigating factors it will always reach at a reasonable just
sentence. Despite the fadt that sentencing is discretion of the
court, a fundamental requirement of fair play and justice
requires that every decision be supported by reasons in order
not to be arbitrary. First offenders forinstance or those who
plead guilty to the charge should be given a lenient sentence,
unless if there are aggravating circumstances.272
11.6 Types of Sentences
1. Fine.
2. Imprisonment.
3. Death penalty.
4. Community service s.339A of the CPA.
5. Probation s.337 of the CPA.
6. Conditional discharge s.326 (1) of the CPA.
7. Corporal punishment.
272 Raphael Peter Mwita vs R Criminal Appeal No. 224 of 2016 CAT
(unreported) pg.6, Wily Walosha vs Republic, Criminal Appeal No. 07 of 2002
(Unreported)

11.7 Consecutive vs Concurrent sentences
When sentences run consecutively, the accused will serve

them one after another, whereas when they run
concurrently, he will serve them at the same time.273
The position of law in Tanzania is that, unless there are

exceptional circumstances, trial courts must order
imprisonment sentences to run concurrently in case the
accused is convicted of two or more offences committed in
a series of one transaction.274
11.8 Time Spent in remand before imposing sentence
Where a person has been in remand custody for a period

awaiting trial, his sentence whether it is under the
Minimum Sentence Act or any other law, shall start to run
from the time such sentenced is imposed or confirmed as
the case may be, and such sentence shall take into account
the period that person has spent in remand.275
The Court of Appeal has in several occasions interpreted

“taking into account such time” not to mean deducting it out of
the sentence imposed on the day of pronouncement; they
interpret it as an instrument the accused may present in his
mitigation in order for the court to consider when
273 Cruel and unusual, US Sentencing practicesin a global context, University of

san Francisco School of law, May 2012.
274 R v Kasongos/o Luhogwa (1953-1957) 2 TLR (R) 47, Republic v Sawedi
Mukasa s/o Abdulla Aligwansa (1946) 13 EACA 97 (CA-KShomari Mohamed
Mwaka v Republic, Criminal Appeal No.606 of 2021 CAT (unreported) pg.27,
Festo Domician v R, Cr. Appeal No. 447 of 2016 CAT (unreported).
275 Section 272(2)(c) of the CPA, Legume Lenemas Lesei vs Republic, Criminal
Appeal No.420 of 2020 CAT (unreported), Anna Jamaniste Mboya vs Republic,

Criminal Appeal No.295 of 2018 CAT (unreported),Sano SAdiki and another vs
Republic, Criminal Appeal No.623 of 2021 CAT (unreported)

109
assessing gravity of the sentence to be imposed.276

However, in the current position held in Legume
Lenemas Lesei (supra) the Court interpreted it as
deducting the period spent on remand, from the sentence
imposed.
11.9 Appellate court interfering with sentences
The general principle of sentencing is that, sentencing is

discretion of the trial court as it possesses the opportunity
to assess among others, the demeanour of witnesses,
hence, an appeal court is not empowered to alter it on the
mere ground that if it had been trying the case, it would
have entered a different one. However, under exceptional
circumstances, an appeal court may interfere with the
sentence entered by a trial court under the following
circumstances;277
(1) Where the sentence is manifestly excessive or it is so

excessive as to shock.
(2) Where the sentence is manifestly inadequate.
(3) Where the sentence is based upon a wrong principle
of sentence.
(4) Where a trial court overlooked a material factor.
276 Vuyo Jack vs DPP, Criminal Appeal No. 334 of 2016 CAT
(unreported),Silvanus Leonard Nguruwe v R (1981) TLR 66, Benadetta Paul v
R (1992) TLR 97, Rashidi Kaniki v R (1993) TLR 258, Yohana Balicheco v R
(1994) TLR,Swalehe Ndugajilungu v R (2005) TLR 94, Sospeter Mayala v R
Criminal appeal No. 318 of 2013 CAT (unreported)
277 Bahati John vs Republic, Criminal Appeal No.114 of 2019 CAT
(unreported)pg.7, Kayanda Mshangaa vs Republic, Criminal Appeal No. 200 of
2016 CAT (unreported), Yohana Balicheko v. Republic [1994] TLR 5 at page 7,
Zuberi Ally v R Criminal Appeal No.147 of 2015 CAT Tabora (unreported),
pg.4 and edward mange vs Republic, Criminal appeal no. 51 of 2014 CAT
Mwanza (unreported), Simon Bahati @Maguta vs Republic, Criminal Appeal
No. 107 of 2010 CAT (unreported)

(5) Where the sentence has been based on irrelevant

considerations such as the race or religion of the
offender.
(6) Where the sentence is plainly illegal, as for example,
corporal punishment is imposed for the offence of
receiving stolen property, and
(7) Where the trial court did not consider the time spent
in remand by an accused person.
11.10 Forfeiture of property during sentencing
Where a person is convicted of an offence and the court

which passes sentence is satisfied that any property which
was in his possession or under his control at the time of his
apprehension (a) has been used for the purpose of
committing or facilitating the commission of any offence
or (b) was intended by him to be used for that purpose,
that property shall be liable to forfeiture and confiscation
and any property so forfeited under this section shall be
disposed of as the court may direct.278
The properties are to be forfeited to the government, as

stated in Faustine Magadula v R279, where, following
conviction the magistrate ordered the forfeited 440 liters
of diesel, the subject matter of the trial be distributed
amongst the police, prisons and District Court. The court
of appeal held that:-

279 Faustine Magadula v Republic [2004] TLR 98 CA

111
A proper forfeiture order should direct that

property to be forfeited to the Government; it is
not for the Court to supervise how the forfeited
property should be dealt with by the Government,
and certainly not by ordering its distribution to the
Court itself.

PART 12
ADMISSIBILITY
ADMISSIBILITY OF EVIDENCE
OF EVIDENCE
12.1 Introduction
As a general rule, any relevant evidence is admissible in

court unless it is excluded by some other rules of law and
procedure. One can therefore say that, all admissible
evidences are relevant but not all relevant evidences are
admissible unless such evidence passes certain tests
required by law as explained below (emphasis mine).
12.2 Test for admissibility of an exhibit
The test for admissibility of any type of evidence/exhibit in

court is measured by the following;280
(a) Competence of the witness intended to tender.281
(b) Relevance of the evidence itself (if it tends to make

any fact that it is offered to prove, or disprove,
either more or less probable).
(c) Materiality of the evidence (evidence is material if it

is offered to prove a fact that is at issue in the case).
(d) Competence of the evidence (if it meets certain

requirements of reliability).
280 The Director of Public Prosecutions vs Sharifu Mohamed & 6 others,

Criminal Appeal No. 74 of 2016 CAT (unreported)
281 Section 127(1) of TEA

113
12.3 Who is a competent witness to testify?
Section 127(1) TEA governs general competence of

witnesses. It states that, every person shall be competent to
testify unless the court considers that he is incapable of
understanding the questions put to him, or of giving
rational answers to those questions by reason of tender
age, extreme old age, disease (whether of body or mind) or
any other similar caus.
Even a person of unsound mind shall, unless he is

prevented by his condition from understanding the
questions put to him and giving rational answers to them,
be competent to testify.282
12.4 Evidence of a child of tender age
A child of tender age, as defined by section 127(4) of TEA is

one whose apparent age is not more than fourteen years.
Section 127(2) of TEA permits this type of a person to be a
witness in court, and that he may give evidence on oarth or
affirmation or without oath or affirmation. However,
where such a child is to give evidence without oath or
affirmation, he must first make a promise to tell the truth
and not to tell any lies.283
The interpretation of that section requires the trial

Magistrate to first satisfy himself as to whether the child
282S.127(5) of the Evidence Act.

283Hosea Geofrey Mkamba vs Republic, Criminal Appeal NO.37 of 2020 CAT
(unreported), Wambura Kiginga v Republic, Criminal Appeal No. 301 of 2018
CAT (unreported), Menald Wenela vs DPP, Criminal Appeal No. 336 of 2018,
CAT (Unreported), Shaban Said Likubu vs Republic, Criminal Appeal No. 228
of 2020, CAT (unreported), Bashiru Salumu Sudi vs Republic, Criminal Appeal
No. 379 of 2018, CAT (Unreported)

understands the nature and meaning of an oath. And upon

such satisfaction;284
(i) If the child understands the nature and meaning of

an oath, he should give evidence on oath or
affirmation, or
(ii) If the child does not understand the nature and

meaning of an oath, he will be required to promise
to tell the truth and not to tell lies.
12.5 Witnesses who can tender exhibits
Only a competent witness on the eyes of law may tender

exhibits in court. Case laws have established that, any
person who at one point in time possessed anything, a
subject matter of trial, is not only a competent witness to
testify but also has competence to tender such item as
exhibit.285
Generally, this means the test to determine whether a

witness is competent to tender an exhibit is whether the
witness has knowledge and possessed the thing in question
at some point in time, albeit shortly.286 That also includes
documentary evidences as per section 173(1) of TEA.
The Tanzania Judiciary Exhibit Management Guidelines 2020

lists out persons competent to tender exhibits to include
the followings:-
284 Ramson Peter Ondile vs Republic, Criminal Appeal No.84 of 2021 CAT
(unreported)
285 Director of Public Prosecutions vs Mirzai Pirbakhshi Hadji & 3 Others,
Criminal Appeal NO.493 of 2016 CAT (Unreported) pg.7&8.

286 Hamis Said Adam vs Republic, Criminal Appeal No. 529 of 2016 CAT
(unreported) pg.11

115
(a) A maker or author of a document.

(b) A person who at one point in time, possessed
anything subject of the trial.
(c) Custodian of an exhibit.
(d) An actual owner of the exhibit
(e) An addressee
(f) The arresting, searching or investigating officer.
(g) An officer from a corporate entity to which an
exhibit relates.
(h) Any person with knowledge of the exhibit.
12.6 Expert Evidence

12.6.1 Who is an expert?
An expert refers to one who is qualified by knowledge,

skill, experience, training, or education to provide a
scientific, technical or other specialized opinion about the
evidence or a fact in issue.287
12.6.2 Meaning of expert evidence
Expert evidence simply refers to opinion evidence made

by people who possess special knowledge or experience of
a particular field or discipline beyond that to be expected
of a layman.288
It is an established rule that, there are certain matters

which cannot be perceived by the senses since their
existence or non-existence require ascertainment by
inferences drawn by persons specifically trained in
287 Blacks Law Dictionary

288 The academy of experts

particular fields connected with the subject matter, and that

is when expert opinions come into play.289
The position of the law in Tanzania is that, expert

evidence is admissible where specialized knowledge is
required.290
Section 47of TEA provides that;
“When a court has to form an opinion upon a point

of foreign law, or of science or art, or as to identity of
handwriting or finger or other impressions, the
opinion upon that point of persons (generally called
experts) possessing special knowledge, skills,
experience or training in such foreign law, science or
art or question as to identify of handwriting or finger
or other impressions are relevant facts”.
12.6.3 Required Qualities of expert evidence
The position in East Africa with regards to the test for

admissibility of expert evidences was settled in Muzeyi v
Uganda,291 where the court stated that, while evaluating
expert opinion, an adjudicator must decide on the
following factors:
(i) The relevance of the evidence
289 Hilda Abel v R [1993] TLR 243, Bashiru Rashid Omar v the Director of
Public Prosecutions, Criminal Appeal No.309 of 2017 CAT (unreported), Tizo

Makazi vs Republic, Criminal Appeal No.532 of 2017 CAT (unreported).pg.10,
Zefelinus Kumb @ Philimon vs Republic, Criminal Appeal No.243 of 2013
CAT (unreported) pg.10-11, Director of Public Prosecutions v Shida
Manyama@Seleman Mabuba, Criminal Appeal No.285 of 2012 (unreported),
290 Mary Kirama Kinywawa vs John George @Jimmy, Civil Appeal No.183 of
2017 CAT DSM (unreported)
291 Muzeyi v Uganda [1971] E.A 225

117
(j) The credibility of the expert
(k) The reliability of the evidence and the weight to be

placed on it
In addition to that, we can learn/borrow from the

common law jurisprudence where expert evidence may be
admissible where;292
(1) If it is of assistance to the court. This means, it

must provide the court with information which is
likely to be outside a judge or magistrate’s knowledge
and experience, and must give the court the help it
needs in forming its conclusions.
(2) If the expert has a relevant expertise. The

individual claiming expertise must have acquired by
study or experience sufficient knowledge of the
relevant field to render the opinion of value. In
Tanzania, as long as the witness purports to be an
expert of a particular field, he is required to establish
it in his evidence for the court to weigh it.293
(3) Where the expert is impartial. This is where the

expert provides impartial, unbiased, objective
evidence on the matters within their field of expertise.
The test as to whether a person is or is not impartial
is on his evidence, whether the evidence that he gives
292 The crown prosecutions ervice,Legal guide August 2022, Expert support
services from the UK register of expert witnesses;Factsheet 02, May 2022,
Bonython (1984) 38 SASR 45, 46 to 47
293 Mary Kirama Kinywawa (supra), Tizo Makazi v. Rep, Criminal Appeal No.
532 of 2017 (unreported)

is manifestly impartial regardless of the field he works

with.294
12.6.4 Value of expert evidence (opinion)
Expert evidence is corroborative and advisory in nature

since it is not based on facts but opinions. Its essence is to
furnish the court with necessary expertise that may assist it
to understand the evidence before it can form its own
independent decision. Based on that position, it is not
binding on the court, and is not to be treated in isolated of
all other evidences on record.295
In Kimani v Republic [2000] 2 EA 417, it was held that,
“Though the courts must give proper consideration to

expert opinions, such opinions are not binding on the
courts. Such evidences must be considered along with
all other evidences in record and the court would be
entitled to reject it if the expert opinion is not soundly
based”.
The court may reject evidence of an expert if there are

good reasons, to be assigned, for doing so. 296
It should also be noted that, although the court is not

bound to accept the opinion of the expert upon good
reasons for doing so, it is also accepted that rejecting it
without assigning reasons might as well be unjudicial.297
294 Crown prosecutions (supra)

295 Hilda Abel (supra) Bashiru Rashid Omar v the Director of Public
Prosecutions, Criminal Appeal No.309 of 2017 CAT (unreported), Tizo Makazi
vs Republic, Criminal Appeal No.532 of 2017 CAT (unreported).pg.10
296 Michael Mwakalula Njumba&another vs R, Criminal Appeal No.376 of
2020&276 of 2020 CAT DSM (Unreported) pg.15

297 Republic vs Kerstin Cameron [2003] TLR 129, Fayed Hussein v. R, (1957)
EA 844 and Hassan Salum v. R (1964) EA 126.

119
In Kimatu Mbuvi T/A Kimatu Mbuvi & Bros vs.

Augustine Munyao Kioko298, it was held that,
The court is entitled to reject expert opinion if upon

consideration of such an opinion in conjunction with all
other available evidence on the record there is proper
and cogent basis for doing so. What is required of the
Court is to form its own independent opinion based on
the entire evidence before it and such evidence must
not be rejected except on firm grounds.
Special skill required of an expert is not confined to

knowledge acquired academically, but includes also skill
acquired by practical experience.299 Sometimes, even
evidences of lay persons, may surpass that of experts
especially on matters dependent upon ordinary human
powers at perception; as it was held in Republic v Kerstin
Cameron (supra) that,
“When facts in question upon which an expert testified

are dependent upon ordinary human powers at
perception, an expert may be contradicted by levy
witnesses”
Based on that position, it is the function of the court only,

to determine whether or not a witness has undergone such
a course of special studies or attained experience as to
render him an expert in a particular subject. 300
In the English case of Davie v Magistrates of

Edinburgh 1953 S.C 34, it was held that:
298 Kimatu Mbuvi T/A Kimatu Mbuvi & Bros vs. Augustine Munyao Kioko
Civil Appeal No. 203 Of 2001 [2007] 1 EA 139

299 Republic v Kerstin Cameron[2003]TLR 85 HC
300 Republic vs Kerstin Cameron (ibid)

“Expert witnesses, however skilled or eminent, can

give no more than evidence. They cannot assume the
functions of the judge/magistrate….their duty is to
furnish the judge (or magistrate) with the necessary
specific scientific criteria for testing the accuracy of
their conclusions so as to enable the Judge or
magistrate to form their own independent judgment by
the application of these criteria to the facts proved in
evidence. The scientific opinion evidence, if intelligible,
convincing and tested, becomes a factor for
consideration along with the whole other evidence in
the case, but the decision is for the judge or the
magistrate. In particular, the bare ipse dixit of a
scientist, however, eminent, upon the issue in
controversy, will normally carry little weight for it
cannot be tested by cross-examination nor
independently appraised, and the parties have invoked
the decision of a judicial tribunal and not an oracular
pronouncement by an expert.”
Furthermore, in Republic v Kerstin Cameron [2003]

TLR 85 HC, the court stated that, among others;
The duty of an expert is to furnish the court with the

necessary scientific criteria for testing the accuracy of
their conclusions so as to enable the court to form its
own independent judgment by the application of these
criteria to the facts proven in evidence.
Since the evidence of an expert is likely to carry more

weight than that of an ordinary witness, higher
standards of accuracy and objectivity are required
from him. An expert should provide independent
assistance to the court by way of objective unbiased

121
opinion in relation to matters within his expertise and

should never assume the role of an advocate.
When facts in question upon which an expert testified

are dependent upon ordinary human powers at
perception, an expert may be contradicted by levy
witnesses;
Special skill is not confined to knowledge acquired

academically but includes also skill acquired by
practical experience.
12.6.5 Fingerprint evidence
Fingerprints refer to impressions left by friction ridges of a

human finger. Under Tanzanian law, it includes also palm
print, toe print and the impression of a foot.301
It is just one among other expert evidences, hence, has the

same value as the opinion of any other expert. The court is
neither bound by it nor required to take it as conclusive
proof, rather, it must examine it in consideration of other
evidences adduced in order to satisfy itself about the guilt
of the accused. Section 204 of the CPA states that: -
“any document under the hand of an officer appointed

for that purpose by the order of the Director of Public
Prosecutions, which purports to be a report upon any
fingerprint, or any photographic representation of
fingerprints submitted to him for examination or
comparison, shall be receivable in evidence in any
inquiry, trial or other proceedings under this Act and
shall be evidence of all facts stated in that document.”
301 See section 47 of the Evidence Act [Cap.6 R.E 2022] and 59 and 204 (1)(4)
of the Criminal Procedure Act [Cap.20 R.E 2022]

The followings are practical essentials necessary to

remember when dealing with fingerprint evidence in court.
1. Fingerprints are good source of evidence in criminal

law because, a person’s fingerprints do not change over
time, and the friction ridges which create fingerprints
are formed while inside the womb and grow
proportionally as the baby grows.302
2. A person’s “friction ridge patterns” of a finger
doesn’t change over his lifetimes.
3. No two people have the same pattern of friction ridges.
Even identical twins have different fingerprints.303
4. Based on scientific proof, identification of individuals
by means of fingerprint is based upon three premises,
namely:304
(a) The ridge patterns on the digitals never change
during the life of an individual.
(b) The ridge patterns differ from individual to
individual, and even from digit to digit in every
individual.
(c) Although all patterns are individual and distinct in
their ridge characteristics, they vary within limits
which allow for systematic classification.
5. If tendered in court as exhibit, it is not free from all
conditions and stages in the admissibility of
documentary evidences. This includes CLEARING
302 Muganyizi Peter Michael & 3 others vs Republic, Criminal Appeal No.144
of 2020 CAT Mwanza (unreported) pg.35

303 Muganyizi (supra)pg.34
304 ibid

123
first for admission, ADMISSION and READING it

after it has been admitted.305
12.6.6 Handwritings and Signatures
Section 69 of TEA provides that, if a document is alleged to

be signed or written wholly or in part by any person, the
signature or the handwriting of so much of the document
as is alleged to be in that person’s handwriting must be
proved to be in his handwriting.
The handwriting examination is not the only way or

mode of establishing handwritings or signatures of a
person. There are various ways in which disputed
handwritings and signatures may be proved in court. They
include;
1) Proof by the writer or witness in whose presence

the document was written or signed. As a general
rule, this works as a direct evidence and offers the best
means of proof.306
2) Opinion of a handwriting expert. A qualified

handwriting expert can also potentially be asked to
authenticate a document in court.307 The report he
made must be in accordance with the form set out in
the Seventh schedule to the CPA.308
305 Karubone Bagirigwa & 3 Others Vs Republic, Criminal Appeal No. 132 of
2015 CAT (unreported) pg.10, Robison Mwanjisi & 3 Others V R [2003] TLR
218 and Lack Kilingani v Republic, Criminal Appeal No. 305 of 2015
(unreported)
306 DPP v. Shida Manyama @Seleman Mabuba, Criminal Appeal No. 285 of
2012 CAT (unreported)pg.23

307 Section 47 of the Evidence Act Cap.6
308 Expert Management Guidelines 2020 of the Judiciary

3) Evidence of persons who are familiar with the

writing of a person who is said to have written a
particular writing. This is where a person who is not a
handwriting expert testifies on the genuineness of the
handwriting in dispute, based on the familiarity with it,
which has not been acquainted solely for the purposes
of the litigation.309
4) Comparison by the court with writing made in the

presence of the court or admitted or proved to be the
writing or signature of the person.310
If the handwriting or signature is to be proved by an

expert, he is expected to point out the particular features of
similarities or dissimilarities between the two.311
A handwriting expert is not a person who tells you, this is

the handwriting of such and such a man. He is the person
who, habituated to the examination of hand writing,
practiced in the task of making minute examination of
handwriting and directs the attention of others to things
which he suggests are similarities. That and no more than
that, is his legitimate province.312
In Maulidi Abdullah Chengo v Republic313, stated that,
309 Section 49(1)(2) of the Evidence Act Cap.6, Joseph Mapema v. Republic
[1986] TLR 148, Raymond Adolf Luis&2others vs Republic, Criminal Appeal
No.120 of 2019 CAT (unreported), DPP v. Shida Manyama @
Seleman Mabuba, Criminal Appeal No. 285 of 2012, Michael Mwakalula
Njumba and another vs Republic, Consolidated Criminal Appeal No.376 of
2020&276 of 2020 CAT (unreported) pg.13, Happy Kaitira Burilot/a Irene
Stantionary and another vs International Commercial Bank (T)ltd, civil Appeal
No.115 of 2016 CAT (unreported),
310 Section 75 of the Evidence Act Cap.6, Fauzia Jamal Mohamed vs Oceanic
Bay Hotel Ltd, Civil Appeal NO.161 of 2018 CAT (unreported) pg.28&29
311 Hassan Salum Vs R (1964) EA 126.
312 Hassan Salum (ibid),
313 Maulidi Abdullah Chengo v R [1964] 1 EA 122 & Hassan Salum Vs R(ibid)

125
“The most that an expert on handwriting can properly

say, in an appropriate case, is that he does not believe a
particular writing was by a particular person or,
positively, that two writings are so similar as to be
indistinguishable. He should point out the particular
features of similarity or dissimilarity between the forged
signature on the questioned document and the
specimens of handwriting.”
It was further held in Nguku v. Republic314 that, that:
The handwriting expert is not restricted to merely

pointing out the features of similarity or dissimilarity
between a forged signature and specimens of
handwriting. He is also entitled to express without
argument an opinion on whether two handwritings are
the product of the same hand. If the opinion is a
confident one, and is not challenged in cross-
examination, the court is entitled to accept the opinion
of the expert.
12.6.7 Medical Expert Opinions
Medical experts as far as expert evidence is concerned,

refer to medical practitioners. Section 3 of the Medical,
dental and Allied Health Professionals Act, No.11 of
2017 defines a medical practitioner” to be;
“a person holding a degree, advanced diploma,

diploma or certificate in medicine or dentistry from an
institution recognized by the Council, with his level of
competency and registered, enrolled or enlisted to
practice as such under this Act”;
314 Nguku v. Republic [2004] 1 EA 188, Onyango v. Republic [1969] EA 362

Just as it is to other expert evidences, the opinion of a

medical expert is admissible in court, but the court is not
bound to accept it if there are good reasons for not doing
so.315 Section 240(1) of the CPA provides that;
“In any trial before a subordinate court, any

document purporting to be a report signed by a
medical witness upon any purely medical or
surgical matter, shall be receivable in evidence.”
When such witnesses appear to testify in court and wish to

tender statements of medical reports, the following
requirements need to be observed;
(a) The court may presume that the signature to any such
document is genuine and that the person signing the
same held the office316 or
(b) The court may presume that such person had the
qualifications which he possessed to hold or to have
when he signed it.317
(c) The court may, if it thinks fit, and shall, if so requested

by the accused person or his advocate, summon and
examine or make available for cross-examination, the
person who made the report; and the court shall
inform the accused person of his right to require the
person who made the report to be summoned in
accordance with the provisions of this subsection.318
315 Agnes Doris Liusi v R [1980]TLR 46, Hilda Abel v R [1993] TLR 246
316 Section 240(2) CPA
317 ibid
318 Section 240(3) CPA

127
12.6.8 Human DNA evidence
When DNA profile of a sample found at the scene of

crime matches with DNA profile of the suspect, it can
generally be concluded that both samples have the same
biological origin hence be taken as good evidence to prove
a fact. 319
Collection and analysis of samples for Human DNA is

governed by the Human DNA Regulation Act 2009. For such
evidence to be admissible, the proper process should be
clearly followed to ensure reliability and maintainance of
chain of custody.320
12.6.9 DNA evidence in rape cases
As it is to all medical reports, DNA report is neither the

only conclusive proof nor a legal requirement to prove the
offence of rape. Rape is proved by the evidence establishing
penetration of the suspect’s penis into the female/victim’s
vagina, however slight it might have been, without her
consent if she is an adult, and consent being immaterial for
girls under the age of 18 who are not wives of the alleged
suspects.321
Therefore, even without DNA evidence, rape can be

proved.
319 Anil @ Anthony Arikswamy Joseph .. Appellant Vs State of Maharashtra,
Criminal Appeal Nos.1419-1420 Of 2012,Supreme Court of India

320 Mboje Mawe and four others vs Republic, Criminal Appeal No. 86 of 2010,
CAT (unreported), Lameck Bazil and another vs Republic, Criminal Appeal 476
of 2016, CAT (unreported), Hamis Shaban @Hamis (Ustadhi) vs. Republic,
Criminal Appeal No. 259 of 2010, CAT (unreported)
321 Simon Emmanuel vs Republic, Criminal Apeal No.531 of 2017 CAT
(unreported) pg.12, Robert Andondile Komba vs DPP, Criminal Apeal No.465
of 2017 CAT (unreported) pg.15 and section 130(4) of the Penal Code

12.6.10 Ballistic Expert Evidence
Ballistic is the field of study of a weapon’s firing

characteristics especially used in criminal cases to
determine a gun’s firing capacity and whether a particular
gun fired a given bullet.322
Under Section 205A(1) of the CPA, a report prepared by a

ballistic expert after examination of anything purported to
have ballistic nature, may be used as evidence in any
inquiry, trial or other proceedings.
It should further be noted that, ballistic expertise is not a

developed science where there can be regular course or
training to be undergone in any institute and given the
degree or diploma in regard thereto. One becomes an
expert in ballistic by training, experience and constant
observation.323
It is therefore not expected of the court to disregard

evidence of a witness who has established in his testimony,
sufficient knowledge and experience on that particular field
of work, each case to be determined according to its
peculiar circumstances.
12.7 Documentary Evidence
As defined by section 3(1) (d) of TEA, documentary

evidence means;
All documents produced as evidence before the

court.
Bryan A, Garner, Black Law Dictionary 8 Ed.

322
Ahmed Shilla Mkumbo vs Director of Public of Prosecutions, Criminal

323
Appeal No. 235 of 2010, CAT Zanzibar (unreported)

129
And a “document” as defined by the same section means:-
“any writing, handwriting, typewriting, printing,

Photostat, photography, computer data and every
recording upon any tangible thing, any form of
communication or representation including in
electronic form, by letters, figures, marks or
symbols or more than one of these means, which
may be used for the purpose of recording any
matter provided that recording is reasonably
permanent and readable.”
Generally, documents must be proved by primary

evidence except as otherwise provided in law (the
Evidence Act).324
12.7.1 Primary Evidence
Primary evidence refers documents falling under the

following circumstances; 325
(1) The original document itself produced for the
inspection of the court.
(2) Where a document is executed in several parts, each

part is primary evidence of the document.
(3) Where a document is executed in counterpart, each

counterpart being executed by one or some of the
parties only, each counterpart is primary as against the
parties executing it.
(4) Where a number of documents are all made by one

uniform process, as in the case of printing,
324 Section 66 of the Evidence Act Cap.6 R.E 2022

325 Section 64 of the Evidence Act cap.6 R.E 2022

lithography or photography, each is primary evidence

of the contents, of the rest;
12.7.2 Secondary Evidence
Secondary evidence is evidence that has been reproduced

from an original document or substituted for an original
item.326 Secondary evidence includes the following;327
(a) Certified copies in accordance with the provisions of

the law (Evidence Act).
(b) Copies made from the original by mechanical process

which in themselves ensure the accuracy of the copy
and copies compared with such copies;
(c) Copies made from or compared with the original
(d) Counterparts of documents as against the parties who

did not execute them;
(e) Oral accounts of the contents of a document given by

some person who has himself seen it.
Apart from the general rule that documents must be proved by

primary (original) evidence, secondary evidence is also admissible
under certain circumstances prescribed by law.328
Secondary evidence is admissible if the document falls under

circumstances prescribed under section 67 (1) – (5) of TEA.
However, secondary evidence of the contents of the document
referred to in section 67(1) (a) of TEA, shall not be given unless the
party proposing to give such secondary evidence has previously
326 Legal services India (www.legalservicesindia.com).


131
given to the party in whose possession or power of the document

is, or to his advocate, a notice to produce it as prescribed by
law; and if no notice is prescribed by law, then such notice as the
court considers reasonable in the circumstances of the case.
Under section 68 of TEA, there are circumstances which do not

require notice to produce documents before secondary evidence
is tendered in court. The section provides that circumstances
falling under section 67(1) (a) of TEA requires such notice and they
include;
(i) When the original is shown or appears to be in the

possession or power of the person against whom the
document is sought to be proved,
(ii)When the original is shown or appears to be in the

possession or power of a person out of reach of, or not
subject to the process of the court; or
(iii) When the original is shown or appears to be in the

possession or power of a person legally bound to produce
it, and when after the notice specified in section 68, such
person does not produce it.
Under section 175 of TEA a party who refuses to produce a

document which he has had notice to produce, may not
afterwards use it as evidence without the consent of the other
party or without the order of the court.
12.8 Tendering of Exhibits
An exhibit is a document, record or other tangible object

formally introduced as evidence in court.329 The Exhibit
329 Black’s law Dictionary (11th Ed.2019)

Management Guidelines of the Tanzania’s Judiciary has

categorized exhibits into two types, namely;
(i) Real exhibits sometimes are referred to as physical

exhibits, and include all items intended to be
evidence, which are in physical form except
documentary. They include tangible objects such as
clothes, weapons, tools, vehicles, drugs and the
alike.
(ii) Documentary exhibits, which include exhibits

which are in written form.
12.8.1 Who may Tender Exhibits?
The position of law is that, any person who has knowledge of

and possessed the ting in question at some point in time,
albeit shortly, can tender that thing in court to form part of
the evidence.330 Based on that position, the following can
tender exhibits in court, namely;
(1) Author or recipient or custodian,
(2) Owner,
(3) Addressee
330 Fatuma Said Mahanyu vs Republic, Criminal Appeal No.323 of 2019 CAT
(unreported) pg.10, Jaffary Saidi Mwalimu vs Republic, Criminal Appeal No.497
of 2019 CAT (unreported) pg.14, Mirzai Pirbakhshi @ Hadji and 3 Others
versus Republic Criminal Appeal No. 493 of 2016, CAT DSM(unreported), The
Director of Public of Prosecutions vs Christina Biskasevskaja, Criminal Appeal
No. 76 of 2016, CAT Arusha (unreported), The Director of Public
Prosecutions vs Shariff Mohamed @Athuman and six other, Criminal Appeal
No. 74 of 2016, CAT Arusha(unreported)

133
(4) Seizing officer or arresting or investigation officer
(5) Any other person who possessed or took part in

possession of the exhibit albeit temporarily.
(6) An officer from a corporate entity to which an exhibit

relates.
(7) Any person with information or knowledge of the

exhibit.
12.8.2 Prosecutor cannot tender Exhibits
Only witnesses are competent to tender exhibits in court.

Prosecutors not being witnesses are barred from tendering
exhibits since they cannot assume both roles of being
prosecutors and witnesses at the same time.331 Although the
prosecutor leads a witness during testimony, he cannot
assume his duties.332
In Msanif Ramadhan Msanif vs the DPP 333 referring the

case of Amos Alexander @ Marwa vs Republic334, the Court
held that;
A public prosecutor is not a witness sworn to

adduce evidence and cannot assume the role of a
331 Thomas Ernest Msungu @Nyoka Mkenya v. R, Criminal Appeal No.78 of

2012,Daniel Malogo Makasi & 2 others vs Republic, Consolidated Criminal
Appeal No.346 of 2020, 475 and 476 of 2021 CAT (unreported)pg.17, Said
Salum vs Republic, Criminal Appeal No. 499 of 2016, CAT DSM Shabani
Rulabisa vs Republic, Criminal Appeal No. 88 of 2018 CAT Shinyanga
(unreported), DPP vs Mienda Said Miaratu (1978) LRT 64
332 Juma Idd Dude vs Republic, Criminal Appeal No.558 of 2020 CAT
(unreported)pg.10, Amos Alexander Marwa vs Republic, Criminal Appeal
No.513 of 2019 pg.13,
333 Msanif Ramadhan Msanif vs DPP, Cr. Appeal No.454 of 2019 CAT
(unreported) pg 18
334 Amos Alexander @ Marwa vs R, Cr Appeal No. 513 of 2019 (unreported),

witness; he is not competent to tender exhibits

because he cannot ride two horses at the same
time, be a prosecutor and a witness at the same
time. This course of action is fatal.
There are some omissions under this aspect which may be

curable under section 388 of the CPA. This is like when, despite
the fact that it is the prosecutor who interjects the invitation
for the court to receive the exhibit, such invitation is made
during the witness’s evidence in chief after having identified
the exhibit, thereafter such exhibit being admitted and its
contents read and explained and when the defence is given
opportunity to cross-examine the respective witness on it.
Under such circumstances, one cannot say he was prejudiced
by the invitation by the prosecutor to have the exhibit received
by the Court.335
12.8.3 Clearing and right to comment
It is trite law that, whenever it is intended to introduce any

item, be it documentary or physical, to form part of evidence
in the proceeding, it should first be cleared for admission and
be actually admitted before any description is made about it. If
it is a document, it cannot be read out before it is cleared and
actually admitted as exhibit.336
Clearing is done by inviting the adverse party to comment on

it as a way of ascertaining whether he objects or not, and
whether the item itself and the person wishing to tender it,
conform to admissibility standards established by the law.
Admitting the exhibit before it is first cleared deprives the
335John Ngonda vs Republic, Crminal Apeal No.45 of 2020 CAT (unreported)

336 Robison Mwanjisi & 3 Others V R [2003] TLR 218), Juma Ismail &
Another vs Republic, Criminal Appeal No. 501 of 2015 CAT (unreported) pg.8,
Karubone Bagirigwa & 3 Others Vs Republic, Criminal Appeal No. 132 of 2015

135
adverse party of the right to fair trial, because the exhibit will
be admitted without him being heard in respect of it.337
12.8.4 Reading document after admission
For documentary exhibits, after admission, the next step is to

read it loud before the court. The rationale is to enable the
accused to know its contents in order to be in a position to
cross-examine or prepare for defence. This also, entails the
right to fair trial in the proceeding since an omission to read it
is as good as hiding incriminating facts from the accused and
that deprives him of the right to challenge or defend against
them. In Lack Kilingani v Republic,338 the court held that;
Fair trial requires the accused to be well informed

about every exhibit being tendered against him,
otherwise anything that is not known to him may
prejudice his case.
In John Ngonda vs Republic,339, it was held that,
It is settled that after a document is cleared for admission

and then admitted in evidence, its contents must be read
out to appraise the accused of its nature and substance.
Failure to do so may vitiate the fairness of the trial
rendering the document worthless – see, for instance,
Robinson Mwanjisi & 3) others V Republic [2002]
T.L.R 218.
337 Juma Ismail&another vs Republic, Criminal Appeal No.501 CAT
(unreported)pg.8&9, Joseph Maganga Mlezi and another Vs the Republic,

Criminal Appeal No. 536 & 537, CAT (unreported).
338 Robison Mwanjisi & 3 Others V R [2003] TLR 218. Lack Kilingani v
Republic, Criminal Appeal No. 305 of 2015 (unreported), Juma Ismail &
Another vs Republic, Criminal Appeal No. 501 of 2015 CAT (unreported) pg.8,
Karubone Bagirigwa & 3 Others Vs Republic, Criminal Appeal No. 132 of 2015
339 John Ngonda vs Republic, Crminal Apeal No.45 of 2020 CAT (unreported)

12.8.5 Description of the exhibit before tendering
A witness seeking to tender any exhibit in court is required

first to lay a foundation of how he can identify it (especially
where the exhibit was not kept by him). It is not expected of
the party leading the witness to hand it over to him for
tendering without having described its identity at least to
show that he has knowledge about it.340
Prior to tendering in court, the witness should make a

description of special marks on it before it is shown to him
for tendering in court. Such identification should be
established to the court beyond reasonable doubt otherwise
he may be doubted as to whether he tenders an item he has
knowledge with.341
In Ally Zuberi Mabukusela vs Republic,342 The court held

that;
“…..the claimant should make a description of special
marks on an item before it is shown to him and allowed
to be tendered as an exhibit. That way, an identification
of the item can be established to the court beyond
reasonable doubt. On the contrary, in the situation at
hand, the complainant did not make a distinctive
description of the mobile phones ahead of the same
being shown to him and tendered in court. He simply
made a blank assurance that he knew the phones and
340 Christian Ugbechi Vs Republic, Criminal Appeal No. 274 of 2019, CAT
(unreported) m, 340 Robinson Mwanjisi & 3 others vs Republic (2003) TLR 218
341 Huang Qin and Another Vs Republic, Criminal Appeal No. 173 of 2018,
CAT(unreported), Christian Ugbechi vs R, Cr. Appeal No. 274 of 2019, CAT

(unreported), Robinson Mwanjisi & 3 others vs Republic (2003) TLR 218,
Huang Qin & Another vs R, Criminal Appeal No. 173 of 2018,
CAT(unreported)
342 Ally Zuberi Mabukusela vs R, Criminal Appeal No.242 of 2011 CAT Iringa
(unreported) pg.4, Mustapha Darajani vs Republic, Criminal Appeal No.242 of

2015 CAT (unreported), Magunguli Jilala vs Republic, Criminal Appeal No.
147 of 2013 CAT (unreported), Nassor 5/0 Mohamed V R [1967] HCD n. 446

137
that there were names on them. He did not go so far as

to relate those names with the mobile phones. Such a
blank assurance could not have sufficed a proper
identification”.
12.8.6 Admitting items for (ID) purposes
Items tendered for ID purposes do not acquire the value of

being an exhibit and do not form part of the evidence in
record which will decide the case. Such item will form part of
evidence after admission in court as an exhibit.343 In Alex
Mwalupulange Mamba vs Republic,344 the court held that;
“The law is settled that any physical or documentary

evidence marked for identification only and not
produced as an exhibit does not form part of the
evidence hence has no evidential value”
12.8.7 Procedure for tendering exhibits
Based on court practice and laws, the following is the

procedure whereby items intended to be tendered as exhibits
can be introduced at a trial, namely;345
(a) Witness to lay a foundation establishing how he knows

about the item.
(b) If it is not on the hands of the witness, he should

explain how he can identify it if shown to him.
343 Alex Mwalupulage @ Mamba vs Republic, Criminal Appeal No. 25 of

2020, CAT (unreported)
344 Alex Mwalupulange@Mamba vs Republic, Criminal Appeal No.25 of 2020
345 Exhibit Management Guidelines of the Tanzania’s Judiciary, 2020

(c) Where there is a party who leads the witness, he shall

seek leave of the court to show the item to the witness
for identification.
(d) The witness should personally express willingness to

tender it as exhibit.
(e) If the witness expresses willingness to tender it as

exhibit, the opposing party should be given opportunity
to comment or object it.
(f) The adverse party may object as to admissibility on

points of law, not facts.
(g) Where there is no objection, the court may admit it as

exhibit provided that it has passed admissibility test.
(h) Where there is an objection, the party seeking to tender

it shall be accorded an opportunity to respond and
thereafter the court will rule on the admissibility of the
exhibit.
(i) After admission, the exhibit shall be marked and

endorsed.
(j) If it is a document, it must be read out in court after

admission. And for real exhibits, descriptions as the
case may be may follow.
(k) As for documentary evidences, in some deserving cases,

an exhibit not read out after admission especially where
the witness canvassed the contents of the documents
and thereafter being cross-examined by the accused,
may be curable. The reason behind is that, the accused
would not have been prejudiced since the content of
the document were made known to him. Prejudice or

139
unfairness comes where the content is not made known

to him.346
(l) The court shall then ensure the registry management

assistant prepares and keeps a list of exhibits tendered,
in the case file.
12.9 Chain of Custody

12.9.1 Meaning of chain of custody
Chain of custody is the legal term referring to the

chronological documentation or paper trail that records the
sequence of custody, control, transfer, analysis, and
disposition of materials, including physical or electronic,
from the time of its seizure to the time it is presented
before the court.347
12.9.2 General principle
As a general rule, chain of custody requires that from the

moment the item is collected, its transfer from one person
to another until the time it is presented before the court, its
events must be documented to establish impossibility of
tempering it along the way. If chain of custody of a
particular item is broken or tampered with, its evidential
value depreciates and may not be considered an authentic
exhibit.348
346 Saulo Mwandu@Kamando & 2 other vs Republic, Criminal Appeal No.224
of 2018 CAT (unreported), Chrisant John v. Republic, Criminal Appeal No. 313
of 2015, Ernest John Mwandikaupesi v. Republic, Criminal Appeal No.408 of
2019 and Stanley Murithi Mwaura v. Republic, Criminal Appeal No. 144 of
347 Wallenstein Alvares Santillan vs Republic, Criminal Appeal No.68 of 2019

348 Paulo Maduka and Others v. Republic, Criminal Appeal No. 110 of 2007
(unreported).

The witness for the prosecution for example, when

tendering an exhibit subject to chain of custody, is expected
to establish the following; 349
(i) That the exhibit is the very one which was collected at
the scene,
(ii) That there has been no fabrication or interference

along the way which could cause danger to its
nature/status and
(iii) That the item has remained in the same condition (it
has not been tampered with).
12.9.3 Rationale behind chain of custody
The rationale behind the principle of chain of custody is to

establish a nexus between the exhibit and the crime, and to
avoid tempering or fabrication of evidence against the
accused.350
To ensure authenticity, in cases involving arrest, seizure,

custody and later production in court of the seized property
as exhibit, there must be proper explanation of who and
349 Juma Idd Dude v Republic, Criminal Appeal No.558 of 2020 CAT
Dodoma (unreported), DPP vs Mussa Hatibu Sembe, Criminal Appeal No.130
of 2021 CAT (unreported), Iluminatus Mkoka vs the Republic [2003] TLR 245
350 Jason Pascal & Another vs Republic, Criminal Appeal No.615 Of 2020
CAT. and PGO 229 Paragraph 15, Juma Idd @ Dude vs Republic, Criminal
Appeal No.558 of 2020 CAT (unreported) pg.32 Jason Pascal & Another vs
Republic, Criminal Appeal No.615 Of 2020 CAT. and PGO 229 Paragraph 15,
Chukwudi Denis Okechukwu & 3 others v Republic, Criminal Appeal No.507
of 2015 CAT (unreported), Paulo Maduka & 4 others v Republic, Criminal
Appeal No.110 of 2007 CAT (Unreported),Paschal Maganga & another vs
Republic, Criminal Appeal No.268 of 2016 CAT (unreported).

141
how the property was handled from the time of seizure to

its tendering in court.351
12.9.4 When to challenge chain of custody?
A broken chain of custody can be challenged and its

evidence discarded, although such challenge cannot be
done at the stage of admissibility of the item but after
closure of the case. This is because chain of custody
involves issues of weight of the exhibit which can safely be
determined after the respective party has called all witnesses
and closed the case. It is dangerous to discard it prior to
closure of the case because a fact which may be used to
discard the item may have been given explanation by
witnesses who were yet to be called.352
12.9.5 Exceptions in chain of custody
As an exception, it is not every time that when the chain of

custody is broken, then the relevant item cannot be
produced and accepted by the court as evidence irrespective
of its nature. The requirement to maintain chain of custody
may be relaxed where the potential evidence is not in
danger of being destroyed, fabricated in any manner,
polluted or tempered with. Where circumstances show the
absence of such danger, the court may safely receive such
evidence despite the fact that the chain of custody was
broken. However, this will depend on the prevailing
circumstances of each particular case.353
351 Jibril Okash Ahmed vs Republic, Criminal Appeal No.331 of 2017 CAT
(unreported) pg.35
352 DPP vs Kristina Biskasevskaja, Criminal Appeal No.76 of 2016 CAT
(unreported) pg.7, Republic vs Charles Abel Gasirabo@Charles GAzilabo &3
others, Criminal Appeal No.358 of 2019 CAT (unreported).
353 Joseph Leonard manyota vs Republic, Criminal Appeal No.485 of 2015
CAT (Unreported) pg.18-19,

Forexample, in items which can easily change hands

without affecting their status, like elephant tusks may not
be considered the same as narcotic drugs in handling. It
may not be easy to temper with the elephant tusk than the
narcotic drug.354
12.10 Electronic Evidence

12.10.1 Meaning of electronic evidence
Electronic evidence is defined by section 64A (3) of TEA to

mean;
Any data or information stored in electronic form
or electronic media or retrieved from a computer
system, which can be presented as evidence.
Section 64A of TEA and section 18 of the ETA,355 for

computer-generated information or another similar device
to be admitted in evidence, the following conditions must
be complied with, that is;356
(a) The reliability of how the data

message/information was generated, stored and
communicated must be established.
(b) The reliability of how the integrity of the data

message was maintained.
354 Muganyizi Peter Michaele & 3 thers vs Republic, Criminal Appeal No.144
of 2020 CAT Mwanza (unreported) pg.36., Joseph Leonard Manyota vs

Republic, Criminal Appeal No. 485 of 2015 (unreported), Issa Hassan Uki vs
Republic, Criminal Appeal No. 129 of 2017 (unreported).
355 Electronic Transactions Act, 2015
356 William Joseph Mungai vs COSATO David Chumi and two others, Misc.
Civil Cause (Election Petition) No. 8 of 2015, HC Iringa (Unreported),

Emmanuel Godfrey Masonga vs Edward France Mwalongo and two others,
Misc. Civil Cause No. 6 of 2015, HC Njombe (Unreported).

143
(c) The manner in which the original was identified.

12.10.2 Admissibility of electronic evidence
For electronic evidence to be admissible, the witness must

prove its authenticity as elaborated under section 18(3) of
ETA.357
The witness is further required to show how the originator

was identified prior to tendering. Although practice shows
certificates or affidavits have been filed when proving
authenticity, there is however no such requirement under
section 18 of ETA that before an electronic record is
admitted, an affidavit testifying as to its authenticity must
be filed.358
NB: Section 18 of ETA has been facing criticism that it

determines weight of evidence prior to admissibility,
something which should have to be done after admission of
the item. Currently, the section is yet to be amended to suit
admissibility standards in evidence law.
12.10.3 Admissibility of Banker’s Book
“Banker’s books” includes ledgers, cash books, account

books and any other records used in the ordinary business
of the bank or financial institution, whether the records are
in written form or a data message or kept on an
information system including, but not limited to computers
and storage devices, magnetic tape, micro-firm, video or
computer display screen or any other form of mechanical
357 Stanley Murith Mwaura vs Republic, Criminal Appeal No.144 of 2019 CAT
DSM (unreported).
358 Freeman Aikael Mbowe and 7others vs. Republic, Criminal Appeal No. 76
of 2020 (Unreported)

or electronic data retrieval mechanism.359 Under section 78A

and 79 of TEA, banker’s books are admissible. The
following are conditions to be observed before banker’s
books are admitted;
(i) The entry and retrieval must have been made in the
usual ordinary course of business (not purposefully
made to create evidence for the case in question).
(ii) The banker’s book is in the bank's control, and by
their position, they are the custodian of the system,
etc.
(iii) The witness has to show how the retrieval of the
document was done, showing the accuracy of the
printout
(iv) Verification of copy. The witness has to show that the
print-out statements or documents were examined
with the original entry and is correct. The proof under
section 79(1) of TEA shall be given by person who
has examined the copy with the original entry, and
may be given either orally or by an affidavit.360
S. 76 of the Tanzania Evidence Act [Cap.6 R.E 2022]

359
Exim Bank (T) Ltd vs Kilimanjaro Coffee Company Limited; Commercial

360
Case No. 29 of 2011 (High Court Commercial Division), at pages 9 -12

145
PART 13
CONFESSION
CONFESSIONSTATEMENT
STATEMENT
13.1 Meaning of confession
An ordinary meaning of a confession is a statement freely

and voluntarily made by a suspect of an offence in the
immediate presence of a police officer, a magistrate or
justice of the peace or before ordinary persons.
Section 3(1) (c) of TEA defines it to mean;
A statement containing an admission of all the

ingredients of the offence with which its maker is
charged.
A confession voluntarily made is admissible in court as

evidence to prove the guilty of the maker.361
The Court of Appeal has long established that, the very

best of witnesses in a criminal trial, is an accused person
who freely confesses his guilty, provided that the
confession is above and free from the remotest taint of
suspicion.362
The principle behind confessions is the presumption that,

no reasonable man in a free and voluntary environment
would make a statement which is against his interest unless
it be true. If he does so under such favourable
environments, the inference is that he is speaking the truth
361Read s.27(1) and 28 of TEA

362Twaha Ali &5others vs Republic, Criminal Appeal No.78 of 2004 CAT
(unreported), Frank Kinambo vs DPP, Criminal Appeal No.47 of 2019 CAT
Mbeya (unreported) pg 17

about the matter hence becomes the best witness in a case

against himself (emphasis added).363
13.2 What constitutes a confession?
For a statement to qualify as a confession admissible in

court, it must contain the admission of all the ingredients
of the alleged offence. This is provided for under section
3(1) (c) of the TEA and several case laws.364
13.3 Things to note when dealing with confessions
The following is the summary of positions of law regarding

confessions which can be used to determin admissibility;
(i) A person who confesses to a crime is the best witness,

meaning, if the court admits his confession as evidence,
it makes one of the best evidences in the case.365
(ii) It is not mandatory for a confession to be reduced into

writing; even oral confession is admissible provided that
it was made voluntarily.366
(iii) The onus of proving that any confession made by an

accused was voluntarily lies on the prosecution.367
(iv) Contrary to the other two types of confession

(cautioned and extra-judicial statements), we do not test
363 Frank Kinambo vs DPP, Criminal Appeal No.47 of 2019 CAT Mbeya
(unreported) pg 17
364 Rhino Migere vs Republic, Criminal Appeal No.122 of 2002 CAT
(unreported). Diamon Malekela@maunganya vs Republic, Criminal Appeal N
O.205 of 2005 CAT (Unreported), Khalid Mohamed Kiwanga & another vs
Republic, Criminal Appeal NO.223 of 2019 CAT (unreported) pg.32
365 DPP vs Nuru Gulamrasul [1988] T.L.R 82
366 Jacob Mayan V R, Criminal Appeal No.558 of 2016 CAT(unreported) pg.17
367 S.27 (2) TEA.

147
voluntariness of oral confessions through inquiry or

trial within trial. Oral confession is tested by looking at
the credibility and reliability of the witness testifying
about it.368
(v) It is acceptable if a confession is made before civilians

as well as non-civilians so long as in both, the suspect
was a free agent.369
13.4 Exculpatory statements in Confessions
Section 3(1) (c) of TEA provides that, a confession means;
A statement containing an admission of all the

ingredients of the offence with which its maker is
charged.
This literally excludes statements having a mixture of

incupatory and exculpatory statements if the latter negates
the offence in question. Although, as a matter of practice
each case is to be determined according to its peculiar
circumstances, the position of law is that, any confession
statement which contains exculpatory matters does not
amount to a confession in law “if the exculpatory
statements negate the offence alleged to be confessed”.370
In Sharifu Mohamed@Athumani & 4 others vs

Republic,371 it was held that, a statement in which a
368 Anna Jamaniste Mboya Vs R, Criminal Appeal No.295 of 2018 CAT DSM
(unreported)pg.29.
369 Posolo Wilson Mwalyego vs Republic, Criminal Appeal No.613 of 2015
CAT Mbeya (unreported) pg.7.
370 Musa Bakari Ngolonji vs Republic, Criminal Appeal No.31 of 2007 CAT
(unreported) pg.7, Daudi @ Senga Sadrick & Another vs Republic, Criminal
Appeal No. 25 of 1998, CAT Mbeya (unreported) pg.9
371 Sharifu Mohamed@Athumani &4 others vs Republic, Criminal Appeal
NO.251 of 2018 CAT (unreported) pg.53&54

person exculpates himself from the offence is not a

confession. Quorting sakar & V.R Manohar, Vol.1, Lexis
Nexis pg.602, it adopted that;
“No statement that contains self-exculpatory

matter can amount to a confession, if the
exculpatory statement is of some fact which if true
would negative the offence alleged to be confessed.
Moreover, a confession must either admit in terms
of the offence or at any rate substantially all the
facts which constitute the offence.”
13.5 Confession leading to discovery
One of the reliable confessions is that which leads to

discovery of the material objects connected with the crime.
This is because such leading to discovery confirms or
supplies a guarantee of truth of what has been confessed in
the statement. In Chamuriho Kirenge @ Chamuriho
Juias 372 and many other case laws support this position.
Section 31 of TEA provides that;
When any fact is deposed to as discovered in

consequence of information received from a person
accused of offence in the custody of police officer,
so much of such information, whether it amounts
to a confession or not, as relates distinctly to the
fact thereby discovered, is relevant.
372 Chamuriho Kirenge @ Chamuriho Juias vs Republic, Criminal Appeal
No.597 of 2017 CAT (unreported) pg 24, John Shini vs Republic, Criminal

Appeal No.573 of 2016 CAT (unreported) pg 16, Michael Mgowole & another
v Republic, Criminal Appeal No.205 of 2017 CAT (unreported) pg.28

149
13.6 Confession implicating co-accused
As a general rule, for a confession to be used against the

accused, it must have been made by the accused himself.373
However as an exception, where two or more persons are

being tried jointly for the same offence or for different
offences arising out of the same transaction and one of
them makes a self-implicating confession which touches
such other co-accused persons, the court may take
consideration of that confession against those others
provided that the said confession was made freely and
voluntarily.374
Under s.33 (2) TEA, in order to convict a co-accused based

on such confession, there must be independent evidence
from a trustworthy source which when linked and
supported by the confession of the co-accused, removes
beyond reasonable doubt the question of innocence.375
This is because, as it has been held in several cases, co-

accused confession is considered as one of the weakest of
confessions. In Simon v R376 the court held;-
“If it is a confession and implicates a co-accused it

may, in a joint trial, be taken into consideration
against that co-accused. It is, however, not only
373 Section 27(1) of TEA

374 Section 33(1)(2) of TEA,Hassan Nondo v Republic, Criminal Appeal
No.126 of 2002 CAT Mbeya (unreported),
375 Karanya s/o Njonji & others v R (1952) 20 E.A.C.A 324, Bushiri Amiri v. R
[1992] TLR 65, Muthige Mwigai & others v Reginam (1954) 21 E.A.C.A 267&
268, Jamali Msombe & another vs Republic, Criminal Appeal No.28 of 2020
CAT (Unreported) pg.25, Baven Hamis & 2 others v Republic, Criminal Appeal
No.99 of 2014 CAT (unreported) pg.20, Shinje James vs Republic, Criminal
Appeal No.408 of 2017 CAT (unreported) pg.14,
376 Simon v R (1974) E.A 74 , Anyanga v R (1968) E.A 239

accomplice evidence but evidence of the weakest

kind and can only be used as lending assurance to
other evidences against the co-accused.”
The case of Anyangu v R377 repeated what was held in the

East African Court that;
“If a statement amounts to a confession and it

implicates the co-accused, it may in a joint trial be
taken into consideration against the co-accused. It is
however evidence of the weakest kind and can only
be used as lending assurance of other evidence
against eh co-accused.”
13.7 Confession under s.29 of TEA
Generally, Confession statements are admissible if they

were made voluntarily and free from promise, threat or
torture. However, under some circumstances if torture was
not employed, the law allows the trial court to admit a
confession obtained through a promise or threat if it is of
the opinion that no inducement was made and that the
confession was not of such a nature as was likely to cause
an untrue admission of guilty.378 Section 29 of TEA
provides:-
No confession which is tendered in evidence shall
be rejected on the ground that a promise or a threat
has been held out to the person confessing unless
the court is of the opinion that inducement was
made in such circumstances and was of such a
nature as was likely to cause an untrue admission of
guilty to be made.
377 Anyangu v R [1968] EA 239, Anyuna s/o Omolo v R (1953) 20 E.A.C.A
218,Gopa s/o Gidamebanya v R (1953) 20 E.A.C.A 318

378 Yusuph Sylvester vs Republic, Criminal Appeal No.115 of 2021 CAT
Bukoba (unreported)

151
This means, if torture was not used, confession obtained

through promise or threat may be admissible against the
maker if it is in such a nature that it is true or if the
inducement or threat was of such a nature not to cause an
untrue admission of guilt.379
See also the case of Josephat Somisha Maziku v R380

where the court was of the view that;-
While it is trite law that the condition precedent for

the admissibility of a confession is its voluntariness,
a confession is not automatically inadmissible
simply because it resulted from threats or promise,
unless the inducement or threat was of such a
nature as was likely to cause an untrue admission of
guilt.
13.8 Guiding principles in confessions
In Nyerere Nyague, the court established important

guiding principles to note when dealing with confession
statements, which I think are useful for legal practitioners
to observe. They include;381
(i) A confession or statement will be presumed to have

been obtained voluntarily until objection to it is
made by the defence.
(ii) Objection may be taken on the grounds that it was

not made voluntarily contrary to s.27 TEA that it
379 Thade Mlomo and others v Republic 1995 TLR 187 (CA),
380 Josephat Somisha Maziku v Republic [1992] TLR 227
381 Tuwamoi v Uganda (1967)E.A 91, Nyerere Nyague v Republic, Criminal
Appeal No.67 of 2010, Jumanne Issa & another vs Republic, Consolidated
criminal Apeal Nos.54&55 of 2021 CAT (unreported) pg.4.

was not made at all or it was made in contravention

with the law.
(iii) If an accused intends to object to its admissibility,

he must do so before it is admitted, not during
cross-examination or defence.
(iv) In the absence of any objection to the admissibility

of the statement, the court cannot hold trial within
trial or inquiry suo motu, to test its voluntariness.
(v) If objection is made at the right time on issues of

voluntariness or whether the statement was
recorded or not (retraction or repudiation), the trial
court must stop everything and proceed to conduct
a trial within trial or inquiry to determine
voluntariness or otherwise of the alleged confession.
(vi) In trial within trial or inquiry, the court will

determine only whether the accused made the
statement at all or whether he made it voluntarily.
Contravention with the law does not move the
court into inquiry or trial within trial.
(vii) Everything being equal, the best evidence in a

criminal trial is a voluntary confession from the
accused himself.
(viii) If it contravenes section 169 of the CPA (or any

other provision of law), its admissibility is in
absolute discretion of the trial court, although
before admitting or rejecting it, the parties must
contest it and the trial court must show that it took
into account all necessary matters into consideration
and is satisfied that if it admits, it would be for the
benefit of public interest and the accused’s rights

153
and freedom are not unduly prejudiced. Not every

apparent contravention of the CPA would
automatically lead to the exclusion of the evidence
in question.
13.9 Retracted or Repudiated Confession
As stated in Tuwamoi v. Uganda,382 a retracted

confession is one which the accused person admits that he
made the statements recorded but now seeks to take back
what he said generally on the grounds that the statement
was not voluntary as he had been forced or induced to
make it. On the other hand, a repudiated statement is
one which the accused avers that he never made it.
Generally, it is dangerous to enter a conviction based on a

retracted or repudiated confession without corroboration.
However, it is trite law that where a confession is retracted
or repudiated, the court can convict on it even without
corroboration provided that it warns itself of the danger of
acting solely on such a confession and if it is fully satisfied
that the confession cannot but be true.383 In Tuwamoi v
Uganda, the court stated that;
“…..a trial court should accept any confession which

has been retracted or repudiated or both retracted and
repudiated with caution, and must before founding a
conviction on such a confession be fully satisfied in all
the circumstances of the case that the confession is
true. The same standard of proof is required in all cases
and usually a court will only act on the confession if
corroborated in some material particular by
382Tuwamoi v Uganda (1967) EA 84

383Muganyizi Peter Michael & 3 others vs Republic, Criminal Appeal No.144
of 2020 CAT (unreported) pg.43, Tuwamoi v Uganda (1967) EA 84. Toyi v
R [1960] EA 760, Swai and Others v Republic [1974] EA 37

independent evidence accepted by the court. But

corroboration is not necessary in law and the court may
act on a confession alone if it is fully satisfied after
considering all the material points and surrounding
circumstances that the confession cannot but be true.”
In Kashindye Meli v Republic [2002] TLR 374 CA, the

appellant retracted the confession made to the Justice of the
peace but he was still convicted based on it. The Court of
Appeal stated that:-
It is now settled law that although it is dangerous to

act upon a repudiated or retracted confession unless
such confession is corroborated, the court may still act
upon such confession if it is satisfied that the
confession could not but be true.
As the appellant clearly admitted killing the deceased

in the extra-judicial statement which was accepted by
the trial court as truthful, that was sufficient evidence
for founding the conviction against the appellant.

155
PART
PART14
14
TYPES
TYPESOF
OFCONFESSIONS
CONFESSIONS
14.1 Introduction
There are three types of confessions, namely:-
(1) Oral confessions

(2) Cautioned statements
(3) Extra-judicial statements
14.1.1 Oral confession
Oral confession refers to a voluntary verbal statement

confessing to having committed a crime.384 As long as the
accused person was a free agent at the time when he made
it, oral confession is sufficient by itself to ground a
conviction against him.385
However, a point to note is that, it is not enough that the

accused made the oral confession, the trial court should go
further to determine whether that oral confession was
voluntarily made.386 It is settled principle of law that an oral
confession made by a suspect before or in the presence of
reliable witnesses, whether they be civilians or not, carries
equal weight to the written confession and a valid
conviction can be founded on it.387
384 Academic Dictionaries and Encyclopedias, 2000 - 2022

385 Joseph Thobias &2 others vs Republic, criminal Appeal NO.296 of 2019
CAT (unreported), The Director of Public Prosecution v. Nuru Mohamed
Gulamrasul [1988] T.L.R. 82,
386 Chamuriho Kirenge@chamuriho Julias vs Republic, criminal Appeal
No.597 of 2017 CAT (Unreported) pg.20
387 DPP vs Nuru Mohamed Gulamrasul [1988] TLR 82, Peter Didia@Rumala
vs Republic, Criminal Appeal No.421 of 2019 CAT (unreported) pg.17,
Mawazo Anyandwile Mwaikwaja vs DPP, Criminal Appeal No.455 of 2017

Section 27(3) of TEA provides what amounts to an

involuntary confession. There are certain circumstances
where the surrounding environment may suggest that the
accused was not a free agent despite the fact that he orally
confessed to commit a crime.
In Inota Gishi&3 others vs Republic 388 for instance, the

appellant who after arrest was put in the present of 50
sungusungu militias, confessed the crime. The Court of
Appeal held that, confessing a crime in the presence of such
a large group of vigilantes was not conducive to meet the
standards of voluntariness.
A different scenario happened in Gozbert Henerico v

Republic,389 where the accused submitted himself to the
village chairman after he had committed the crime, and
confessed to him. The village chairman tied and locked him
in a room, put someone to guard as he went to fetch other
people for further actions. The Court of Appeal concluded
that such oral confession was valuable since at the moment
he made it, he was a very free agent and with a reasonable
number of people.
14.1.2 Cautioned statement
For the purpose of this part, a cautioned statement refers

to the statement made by a suspect of a crime during
interrogation by the police after being warned that the same
CAT (Unreported), Poloso Wilson Mwalyego v R Criminal Appeal No.613 of

388 Inota Gishi&3 Others vs Republic, Criminal Appeal NO.05 of 2008 CAT
(Unreported),
389 Gozbert Henerico v R, Cr. Ap. No. 114 of 2015, CAT (unreported).at pg.
17

157
might be used as evidence against him in a court of law

(emphasis mine).
As it is to any other confession statement, cautioned

statement is admissible in evidence against the maker if at
the time of making it, the accused was a free agent and he
made it voluntarily.
The following are guiding principles applicable in

cautioned statements at the time of recording and during
admissibility in court. These principles have been written in
briefly as a checklist for ease of understanding and use
during trial or appeal.
14.1.2.1 Recording statement before several officers
During recording the suspects cautioned statement, he

must be a free agent, free from anything capable of
interfering his voluntariness. Ordinary people for example,
get intimidated by the police even when they have not
committed a crime, so it is expected of the recording officer
not to include other officers at the recording venue. It is
trite law that, a cautioned statement recorded in the
presence of another police officer or other officers is not
admissible in evidence.390
14.1.2.2 Four hours rule
390Leonard Bundala Malulanya @Rena Ngasa vs Republic, Criminal Appeal

No.313 of 2022 CAT (unreported), Bakari Ahmad Nakamo and another vs
Republic, Criminal Appeal NO.74 of 2019 CAT (unreported), Leonard Mathias
Makani & another vs Republic, Criminal Appeal NO.579 of 2017 CAT
(unreported) pg.21, Friday Mbwiga@Kameta vs Republic, Criminal Appeal
No.514 of 2017 CAT (unreported)pg 10&11,Charles Issa @Chile vs Republic,
criminal Appeal No.97 of 2019 CAT (unreported) pg 15&16

Generally, as per section 50(1) (a) of the CPA, the basic period
available for interviewing the suspect is four hours
commencing at the time when he was taken under restraint
in respect of the offence or such period as may be extended
under section 51 of the CPA. The law is clear that, recording
cautioned statement outside such period renders it
incompetent and liable to be expunged from the
evidence.391
In calculating the said four hours period, there shall not be

reckoned as part of it any time while the police officer
investigating the offence refrained to interview him or
causing the suspect to do any act connected with the
investigation of the offence;392
(a) While the person is, after being taken under restraint,
being conveyed to a police station or other place for
any purpose connected with the investigation;
(b) For the purpose of;-
(i) Enabling the person to arrange or attempt to
arrange for the attendance of a lawyer;
(ii) Enabling the police officer to communicate or
attempt to communicate with any person whom he
is require by section 54 of the CPA to communicate in
connection with the investigation of the offence;
(iii) Enabling the person to communicate or attempt to
communicate, with any person with whom he is,
under the CPA, entitled to communicate; or
391 Ibrahim Mohamed vs Republic, Criminal Appeal NO.176 of 2021 CAT

(unreported), Alex Kalilo vs Republic, Criminal Appeal No.305 of 2019 CAT
(unreported) pg 14.
392 Ally Hasan Abdallah vs Republic, Cirminal Appeal No.383 of 2021 CAT
(unreported)pg 21

159
(iv) Arrange or attempting to arrange, for the

attendance of a person who, under the provision of
the CPA is required to be present during an
interview with the person under restraint or while
the person under restraint is doing an act in
connection with the investigation.
(c) While awaiting the arrival of a person referred to in
subparagraph (iv) of paragraph (b) above; or
(d) While the person under restraint is consulting with a
lawyer.
14.1.2.3 Suspect’s rights during interrogation
During interrogation and when a cautioned statement is

about to be recorded, the suspect has rights to be given by
the recording officer (the Police).
The police officer is required to introduce himself by name

and rank and inform the suspect of the offence for which
he is under restraint, and also warn him that the same might
be used as evidence against him in a court of law. This is
what makes it a “cautioned statement” when the suspect is
warned/cautioned that it might be used against him as
evidence. Also, the suspect has the right to be informed
that he is at liberty to answer any question other than those
seeking to his particulars and address, and subject to section
54(2) of the CPA, that he has the right to communicate a
lawyer, relative or friend prior to the recording.393

14.1.2.4 Certification at the end of the statement

At the end of recording the cautioned statement, the
recording officer is required to either read it or cause the
suspect to read it, and where the suspect replies that what
has been recorded is correct, he shall certify it. The
recording officer as well is required to certify that what he
recorded is correct as narrated by the suspect. If
corrections are required, the same shall be done and signed
to indicate it. Case laws have established that, failure to
make a certification or making it under non-existing law
renders the statement unauthentic liable to be expunged
from the record.394
14.1.2.5 Right to comment statements

This sometimes is called clearing an exhibit for admission.
Clearing for admission means removing all possible chances
of complains about its validity. Before a cautioned
statement can be admitted in court as exhibit, the accused
must be given opportunity to comment about it and the
reply thereof should be recorded in the proceedings. Failure
to afford and accused such opportunity results to unfair
trial and the statement may be liable to be expunged by an
appeal court.395
394 Section 57(3) of the CPA, Peter Bugumba @Cherehani vs Republic,

Criminal Appeal No.251 of 2019 CAT (unreported), pg.13, Juma Omary vs
Republic, Criminal Appeal No.568 of 2020 CAT (unreported) pg.15, Paschal
Maganga & another vs R Criminal Appeal No.268 of 2016 CAT (unreported)
395 Jumapili Msyete vs Republic, Criminal Appeal NO.110 of 2014 CAT 2014
Mbeya (unreported), Twaha Ally & 5 Others vs Republic, and Criminal Appeal
NO. 78 of 2004 CAT (unreported) and Bundala Mahona & Another vs
Republic, Criminal Appeal NO. 224 of 2013 CAT (unreported), Fraterin
Constantin Shayo vs Republic, Criminal Appeal NO. 73 of 2011 CAT Arusha
(unreported) pg.7

161
14.1.2.6 Reading statements after admission

After the statement has been cleared for admission and
thereafter being admitted as exhibit, it must be read out
before the court for the accused to be informed of its
contents to enable him prepare for cross-examination of
the witnesses and his defence. Reading out the statement
before admitting it is fatal for want of impartiality on the
part of the court (might be influenced by its contents
before the accused is herd about it hence be biased) and
renders the statement to be expunged.396
14.1.3 Extra-judicial statement
These are statements voluntarily and freely made by a

suspect in the immediate presence of a magistrate or a
justice of the peace.397
As per section 28 of TEA, confession statements in the form

of extrajudicial are admissible as against the person who
made it.
14.1.3.1 Procedure in extra-judicial statements
The guiding procedure to follow when Justices of the

Peace record extra-judicial statements is the Chief Justice’s
Instructions (guides) made under sections 52 and 62 of the
MCA. Generally, what is required of them is for the suspect
to commit himself over his readiness to voluntarily make
the statement, thereafter sign it and for the JP to sign after
the recording as authentication of what has transpired.398
396 Samwel Henry Juma vs Republic, Criminal Appeal No. 211 of 2011 CAT
DSM (unreported) pg.10
397 Section 28 of TEA
398 Peter Charles Makupila @ Askofu vs Republic, Criminal Appeal No.21 of

The validity of the Chief Justice’s guide is that, since they

are born from the Magistrates’ Court Act, they are not
merely administrative procedures but a law.399 And this
means, it is mandatory to Justices of the Peace to abide
when recording extra-judicial statements.400
14.1.3.2 Voluntariness in extrajudicial statements
As it is to any other confession statements, the suspect

must be a free agent at the time of recording an extra-
judicial statement. It must be shown that, he wished is his
own will, to record it.
In Mpemba Mashenene v R,401 for example, the suspect

recorded it in the presence of a police officer and featured
nowhere to show whether he signed to consent the
recording. The Court of Appeal stated that he would not be
a free agent to record such statement in the presence of a
Police Officer.
14.1.3.3 Reading the statement after recording
It was emphasized in Hamis Chacha Wisare vs

Republic,402 quoting with approval the case of Peter
Charles Makupila @ Askofu v. Republic,403 that, there is
no requirement that an extrajudicial statement should be
read to the suspect after completion of the recording.
Instead it is the Justice of the Peace who is obliged to sign
399 Khalid Mohamed Kiwanga & another vs Republic, Criminal Appeal
NO.223 of 2019 CAT (unreported) pg.32

400 Japhet Thadei Msigwa v R Cr. Appeal No.367 of 2008, CAT (unreported),
401 Mpemba Mashenene v Republic Criminal Appeal No.557 of 2015 CAT
(unreported) pg.21
402 Hamis Chacha Wisare vs Republic, Criminal Appeal No.207 of 2019 CAT
(unreported)
403 Peter Charles Makupila @ Askofu v. Republic (Criminal Appeal No. 21 of
2019) [2021]

163
at the end of the statement. Even the time the recording

starts and ends need not be shown.
14.1.3.4 Essential aspects when recording
In Japhet Thadei Msigwa vs Republic,404 quoted with

approval in Peter Charles Makupila @ Askofu v.
Republic,405 it was stated that, when JPs record
confessions of persons in custody of the police, they must
follow the Chief Justice’s instructions to the letter.
Furthermore, the court listed down important conditions
precedent to observe when recording extra-judicial
statements and to include;
(a) The time and date of his arrest

(b) The place he was arrested
(c) The place he slept before the date he was brought to
him
(d) Whether any person by threat or promise or violence
has persuaded him to give the statement.406
(e) Whether he really wishes to make the statement on his
own free will.
(f) That if he makes the statement, the same may be used
as evidence against him.
The court emphasized further that the need to observe the
Chief Justice's Instructions are twofold; One, if the suspect
404 Japhet Thadei Msigwa vs Republic, Criminal Appeal No.367 of 2008 CAT
Iringa (unreported)
405 Peter Charles Makupila @ Askofu v. Republic, Criminal Appeal No. 21 of
2019
406 Joseph Kafuka &Antony Mwitula vs Republic, Criminal Appeal No. 87 of
2014 CAT Iringa (unreported)

decided to give such statement he should be aware of the

implications involved and Two, it will enable the trial Court
to know the surrounding circumstances under which the
statement was taken and decide whether or not it was given
voluntary. Non-compliance will fatally render the statement
inadmissible.
14.1.3.5 Persons who sent the suspects to the JP
Especially where the statement has been objected, the

person who sent the accused to the Justice of the Peace (JP)
is a necessary witness to testify about the role he played. In
Joseph Mwita @ Cahcha vs Republic,407 the court
pointed out the requirement that the Justice of the peace
must explain in the statement the person who handled the
suspect to him and to whom the statement was handled
after it had been recorded.
14.1.3.6 Time of recording extrajudicial statements
Contrary to what is required in cautioned statements, there

is no prescribed time limit to record extrajudicial statements
from the time the suspect was put under restraint to the
tiem he records it.408
In Andius George Songoloka & 2 others vs

Republic,409 the court stated that, what is the
reasonableness of time with which the suspect elects to
make his extrajudicial statement the bottom line being
when he is ready to do so. This is because; recording such
407 Joseph Mwita @ Cahcha vs Republic, Criminal Appeal No. 294 CAT
(Unreported) pg.4
408 Maige Nkuba vs Republic, Criminal Appeal NO.551 of 2016 CAT
(unreported) pg.13
409 Andius George Songoloka and 2 Others v. The Republic, Criminal Appeal
No. 373 of 2017 (unreported),

165
statements depends on the suspect’s willingness to do so. In

Vicent Ilomo & another vs Republic,410 the court held
that;
We take voluntariness to be the key factor even when it
comes to the decision whether and when a suspect
should be taken to a JP. We say so because not in every
case do suspects record extra-judicial statements, and
this, in our view, is a healthy situation tending to
confirm that only when the suspects freely make up
their minds to have confessions recorded, are they
taken before the JPs to record such statement.
14.1.4 Inquiry (trial within trial)
14.1.4.1Meaning of inquiry
An inquiry is a mini-trial conducted in subordinate courts

when determining admissibility of objected confession
statements, whereby the main trial is paused to allow a
mini-trial which would determine admissibility of the said
statement.411 In subordinate courts it is called an “inquiry”
while in the High Court the same is called a “trial within
trial”.
During admissibility stage of the confession statement and

before it is so admitted in court as exhibit, the accused
must be given opportunity to comment or object on it as a
matter of fair trial. If he objects on the ground of
voluntariness or where he repudiates it, the main trial must
stop to allow a mini-trial to determine the validity of the
objection. After the inquiry has been conducted and a
410 Vicent Homo and Another v. Republic, Criminal Appeal No. 337 of 2017
(unreported)
411 Seleman abdallah & 2 others vs Republic, Criminal Appeal No.384 of 2008

ruling delivered, the main trial resumes therefrom where it

had been paused.412
Failure to conduct inquiry within trial where the objection

touches matters of voluntariness or where the accused
repudiated the statement is fatal and renders the statement
liable to be expunged from the record by an appellate
court.413
A number of case laws have settled the principle that, an

inquiry or trial within trial is not to be conducted on every
objection raised by the accused, but only on those which
touch voluntariness or repudiation of the statement. In
Annes Allen vs DPP,414 quoting with approval the East
African cases of Mohamedi Ali & Another v. R [1956]
29 EACA 166 and Mwangi Njoroge v R [1954] E.A.C.A
377 it was stated that;
A trial within trial (or inquiry) should be held to

determine not only the voluntariness or otherwise of
an alleged confessional statement, but also whether or
not the statement was made at all.
14.1.4.2 Procedure for conducting inquiry
The case of Seleman abdallah and 2 others vs

Republic,415quoting with approval the case of Rashid
&another v Republic416 highlighted the procedure of
conducting inquiry as follows;
412 Twaha Ali and 5 others v R Cr.Appeal No. 78 of 2004 CAT (unreported)
413 Nyeura Patrick v R Cr.Appeal nO. 73 of 2013 CAT Mwanza (unreported)
414 Annes Allen vs DPP, Criminal Appeal N.173 of 2007 CAT (unreported)
pg19
415 Seleman abdallah & 2 others vs Republic, Criminal Appeal No.384 of 2008
416 Rashid &another v Republic (1969) EA 138

167
(i) When an objection is raised as to the voluntariness

of the statement intended to be tendered as an
exhibit, the trial court must stay the proceedings.
(ii) The trial court should commence a new trial from

where the main proceedings were stayed and call
upon the prosecutor to adduce evidence in
respect of that aspect of voluntariness. The
witnesses must be sworn or affirmed as mandated
by section 198 of the CPA.
(iii) Whenever a prosecution witness finishes his

evidence the accused or his advocate should be
given opportunity to ask questions.
(iv) Then the prosecution to re-examine its witness.
(v) When all witnesses had testified, the prosecution

shall close its case.
(vi) Then the court is to call upon the accused to give

his evidence and call witnesses, if any. They
should be sworn or affirmed as in the prosecution
side.
(vii) Whenever a witness finishes the prosecution to be

given opportunity to ask questions.
(viii) The accused or his advocate to be given

opportunity to re-examine his witnesses.
(ix) After all witnesses have testified, the accused or his

advocate should close his case.
(x) Then a ruling to follow.

(xi) In case the court finds out that the statement was
voluntarily made (after reading the ruling) then
the court should resume the proceedings by
reminding the witness who was testifying before
the proceedings were stayed that he is still on
oath and should allow him to tender the
statement as an exhibit. The court should accept
and mark it as an exhibit. The contents should
then be read in court.
(xii) In case the court finds out that the statement was
not made voluntarily, it should reject it.

169
PART 15
MISCELLANEOUS
MISCELLANEOUS MATTERS
MATTERS
This part deals with miscellaneous matters such as legal

principles practitioners may come across during trial or
determination of appeals.
15.1 Failure to call a necessary/material witness
Although section 143 of TEA provides that no number of

witnesses is required to prove a fact, the general and well
known rule is that, the prosecutor is under a prima-facie
duty to call those witnesses who, from their connection
with the transaction in question, are able to testify on
material facts. If such witnesses are within reach but are not
called without sufficient reason being shown thereby
leaving missing links in the case, the court may draw an
inference adverse to the prosecution.417
In Chacha Matiko@Magige vs Republic,418, quorting

with approval the case of Raphael Mhando vs
Republic,419 it was stated that,
So, before invoking section 143 of the TEA regard must

be had to the facts of a particular case. If a party’s case
leaves reasonable gaps, it can only do so at its own risk
in relying on the section. It is thus now settled law that,
where a witness who is in a better position to explain
some missing links in the party’s case, is not called
417 Emmanuel Kabelele vs Republic, Criminal Appeal No.536 of 2017 CAT
(unreported) pg.19, Kassim Arimu@Mbawala vs R, Criminal Appeal No.607 of
2021 CAT (Unreported) pg.10, Azizi Abdallah v. Republic [1991] TLR 71
418 Chacha Matiko@Magige vs Republic, Criminal Appeal No.295 of 2020

419 Raphael Mhando vs Republic, Criminal Appeal No.54 of 2017 CAT
(unreported) pg.9

without any sufficient reason being shown by the party,

an adverse inference may be drawn against that party,
even if such inference is only a permissible one.
15.2 Conviction without evidence of the victim
The law recognizes that there are instances where the

charge may be proved without victims of crime testifying in
court. Take an example where the victim is dead, insane,
tender ae or unable to testify due to several reasons.
Provided that there are other evidences to prove the charge,
the conviction can be sustained independent of the
evidence of the victim.420
15.3 Magistrate taking over a case partly heard
As a general rule, a judgment is required to be composed

by the magistrate who tried the case as he is the one who
had an opportunity to see and hear witnesses testify in his
presence. The magistrate who heard a full case is in a
better position to know the demeanour and credibility of
witnesses since he heard and saw them in person, as
opposed to the successor magistrate who only relies on the
record of evidence made by another. 421
However, section 214(1) of the CPA recognizes

circumstances where such Magistrate may not be available
to complete the case he stated. The section therefore
allows another Magistrate to take over a case partly heard
by another, provided that the he possesses and excercises
the same jurisdiction. However, before proceeding on to
420 Adam Shango vs Republic, Criminal Appeal No.149 “B” of 2020 CAT
(unreported) pg.15, Christopher Marwa Mturu vs Republic, Criminal Appeal

No.561 of 2019 CAT (unreported) pg.12
421 section 312(1) of the CPA

171
hear that type of a case, the successor Magistrate must

assign a reason as to why he is so taking over.
The requirement to state reasons of change of magistrated

serves the purpose of controlling and avoiding the danger
of some mischievous Magistrates with interests who might
be able to access the file and do issues not in accordance
with the procedure or requirements of the law.422 Also,
chaos may result in the administration of justice if any
Magistrate without proper reason would be taking over
cases tried by others.423
However, depending on the circumstances of each

particular case, and as stated in Bwanga Rajab v
Republic,424 the omission may be curable where the
conviction was not vitiated by the non-compliance or
where the accused is not materially prejudiced by the
conviction on account that the evidence was not recorded
by the successor Magistrate.
15.4 Evidence of relative or friend
There is no rule which prohibits relatives from testifying in

a case for or against a fellow relative. What matters is their
credibility, unless it is established that the relative witness
hatched upa plan to promote an untruthful story. 425
422Method Deogratias v R Cri. Appeal No.116 of 2018 CAT (unreported) p.13

423 Meshaki Gugami v R Criminal Appeal No.16 of 2016 CAT (unreported)
pg.5&6, Cosmas Chilangazi Emmanuel vs R Criminal Appeal No. 149 of 2016
CAT (unreported) pg.8, Cosmas Chilangazi Emmanuel v R Criminal Appeal
No. 149 of 2016 CAT (unreported) pg. 7&8 and Emmanuel Malobo vs
Republic, Criminal Appeal No. 356 of 2015 CAT Mwanza (unreported) pg.8
424 Bwanga Rajabu vs Republic, Criminal Appeal No.87 of 2018 CAT
(unreported) pg.12&13, Tumaini Jonas vs Republic, Criminal Appeal No.337 of
2020 CAT (unreported) pg 10-11
425 Festo Mgimwa vs Republic,Criminal Appeal No.378 of 2016 CAT
(unreported) pg.12, Allen Francis vs Republic, Criminal Appeal No.327 of 2019

In Mustafa Ramadhani Kihiyo v R426, it was held that;
“The evidence of relatives is credible and there is no

rule of practice or law which requires the evidence of
relatives to be discredited, unless there is ground for
doing so”
15.5 Accomplice witness
The ordinary meaning of “an accomplice witnesss” is one

who took part in the commission of the charged offence
whether as principal or as accessories before or after the
fact, whom the prosecution uses as witness to prove the
case against co-participants. In Adventina Alexander vs
Republic,427 the court defined him as;
A participle criminis in respect of the actual crime

charged whether as principle or as accessories
before or after the fact.
For one to be an accomplice there must exist in him the

mental element in committing or assisting the commission
of the offence.428
As a general rule, an accomplice is a competent witness

against an accused person; and conviction is not illegal
merely because it proceeds upon the uncorroborated
testimony of n accomplice.429
CAT(unreported) pg.12, Elias Mwangoka@Kingloli vs Republic, Criminal

Appeal No.96 of 2019 CAT (unreported)pg.12.
426 Mustafa Ramadhani Kihiyo v Republic [2006] TLR 323
427 Adventina Alexander vs R, Cr.Appeal No.134 of 2002 CAT (unreported),
428 Justice Mumima Katiti &3 others vs Republic, Criminal Appeal No.15 of
429 S.142 of TEA

173
However, as a matter of practice, it is unsafe to uphold a

conviction based solely on uncorroborated evidence of
accomplices. The court is expected to warn itself of the
danger of convicting on uncorroborated accomplice’s
evidence.430
In Joel Watson@Ras vs Republic,431 it was held that,
“Its corroboration is not necessary in law.

However, it is necessary in practice…..”
In Uganda v Khimchand Kalidas Shah & 2 others432the

East Africa Court held that;
The absence or inadequacy of corroboration of the

evidence of an accomplice is not of itself a reason
for disbelieving that evidence but merely precludes
the court (save in exceptional circumstances) from
basing a conviction on it.
For one to be an accomplice there must exist in him the

mental element in committing or assisting the commission
of the offence.433 Also, the East African Court in Wanja
Kanyoro Kamau v R434 held that;
“While a person who aids and abets the

commission of a crime or assists the guilty person
430 Pascal Kitigwa v R (1994) TLR 65 (CA), Bushiri Amiri v R (1992) TLR 65,
Fanuel Joseph Mbedule v R (1989) TLR 221 (CA), Godfrey James Ihuya and
Another v. Republic, [1980] T.L.R. 197, Herman Faida vs Republic, Criminal
Appeal No.479 of 2019 CAT (unreported) pg.18
431 Joel Watson@Ras vs R, Cr.Appeal No.143 of 2010 CAT (unreported) pg.12
432 Uganda v Khimchand Kalidas Shah & 2 others [1966] 1 EA 30
433 Justice Mumima Katiti &3 others vs Republic, Criminal Appeal No.15 of
434 Wanja Kanyoro Kamau v Republic [1965] 1 EA 501

to escape punishment is always an accomplice, a

person who merely acquiesces in what is happening
or who fails to report a crime is not normally an
accomplice but the weight to be given to such
person’s evidence should vary according to the
reason for the acquiescence; if the acquiescence was
based on approval of the crime, the evidence should
be treated as no better than that of an accomplice;
if, however, the acquiescence was based on
indifference, the evidence should be treated with
considerable caution; but if the acquiescence was a
result of fear then there is no reason why the
evidence should not be relied upon;”
15.6 Evidence of Police Officers
Some people think Police officers should not be believed

in evidence just because they are the ones who deal with
arrest and investigation of criminal cases. Evidence of the
Police officer is weighed in the same scale as those of other
people. It was stated in the case of Jimmy Anderson
Mwapashi vs Republic,435 the court stated that,
The evidence of police officers stand on the same

footing as that of any other witness, and that
cannot be rejected simply because the witness is a
police officer. The merit of the evidence is to be
considered and not the person who comes to
depose it.
435 Jimmy Anderson Mwapashi vs Republic, Criminal Appeal No. 419 of 2007,
CAT Mbeya (unreported) pg.4.

175
15.7 Number of witnesses to prove a fact

It is not the number of witnesses which determine the
guilty or otherwise of an accused person.what matters is the
credibility of the witness and weight of his evidence.436
A conviction can even be based on the testimony of a

single witness and there is no rule of law or evidence which
says to the contrary, provided the sole witness passed the
test of reliability in basing conviction on his testimony
alone.437
15.8 Doctrine of common intention
This is the principle of which where two ore more persons

form a commion intention to prosecute an unlawful
purpose in conjunction with one another and in the
prosecution of such purpose an offence is committed of
such a nature that its commission was a probable
consequence of the prosecution of such purpose, each of
them is deemed to have committed the offence.438
In Daimon Malekela @ Maunganga vs Republic,439

cited with approval by Issa Mustapha Gora & another vs
Republic,440 it was held that,
436 Section 143 of TEA, Tafifu Hassan @ Gumbe vs Republic, Criminal

Appeal No.436 of 2017 CAT (unreported) pg 17, Alfredy Kwezi@Alfonce vs
Republic, Criminal Appeal No.216 of 2021 CAT (unreported)pg.19
437 Ibid, Tafifu Hassan
438 Section 23 of the Penal Code [Cap.16 R.E 2022], Mhina Mndolwa@Mhina
vs Republic, Criminal Appeal No.49 of 2007 CAT (unreported)
439 Daimon Malekela @ Maunganga vs Republic, Criminal Appeal No.205 of

440 Issa Mustapha Gora & another vs Republic, Criminal Appeal No.330 of

Suffice it to say here that the doctrine of common

intention, as distinguished from similar intentions,
can only be successfully invoked where two or more
persons form a common intention to prosecute an
unlawful purpose and they commit an offence and
are eventually jointly charged and tried together.
Also, it is not necessary there to be any concerted

agreement between the accused persons prior to the
commission of the unlawful act so logn as they are in
meeting of mind at the time of the commission.
Establishing it may be through their presence, actions and
the omission of any of them to dissociate themselves from
the act or may develop it in the course of the act depending
on the nature of the act.441
Case laws have also established that, a member of the

group would escape being implicated only if there is
evidence that he dissociated himself before the offence was
committed, from the act constituting the offence.442
Furthermore, to prove it, evidence of how each of them

participated is necessary. That may require description of
such suspects and the role they played. The rationale for
this is to ensure that, the witnesses perfectly identified those
suspects.443
15.9 Doctrine of recent possession
This is a rule relating to circumstantial evidence where if a

person is found in possession of a property recently
441Wanjiro Waimath V.R(1955) EACA116,GodfreyJames Ihuya V.R

(1980)TRL 197
442 Mhina Mndolwa @ Mhina vs R, Cr. Ap. No. 49 of 2007 CAT(unreported)
443 Director of Public Prosecutions vs Elias Laurent Mkoba and another (1990)
TLR 115 (CA), Jumanne Salum Pazi v Republic, [1981] TLR 246

177
reported to have been stolen, the presumption arises that

he is either the thief or the receiver of the said stolen goods
according to the circumstances, unless he gives reasonable
explanation with regards to its possession.444
The doctrine will not apply when an explanation is offered

which might reasonably be true even if the trier of the fact
is not satisfied of the truth.445
The possession may be actual or constructive. Constructive

possession refers to when a person thogh not in actual
possession of a property, has knowledge and control of
where it is.446 In Moses Charles Deo v Republic447 it was
held;
“ for a person to be found to have had possession
actual or constructive, of goods it must be proved
either that he was aware of their presence and that
he excercised control over them, or that the goods
came, albeit in his absence, at his invitation and
arrangement. But it is also true that mere possession
sometimes denotes knowedge and control.”
For the doctrine to apply as a basis for conviction, the

following must be proved; -448
444 Andrea Qbonyo and Another v. R„ ( 1962) E.A. 542, Kantillal Jivarai And
Another v. R. (1961) E.A. 6.. Erieza Kasaiia v Uganda , Crim. App. No. 21/91
(S.C), (unreported), R. v. Bukai s/o Abdallah (4) (1949) 16 E.A. C.A. 84, Simon
Musoke v. R., (1958) E.A. 715. Augustino Mgimba vs R, Criminal Appeal
No.436 of 2019, CAT(unreported),
445 John Nkwabi @ Kakunguru Versus The Republic, Criminal Appeal No.
443 'A' Of 2019, Cat (Unreported)

446 Ashiraka Namahala Milias vs Republic, Criminal Appeal No.582 of 2019
CAT (unreported) pg.10, Paulo Andrea@Mbwilande &another vs Republic,
Criminal Appeal No.613 of 2020 CAT (unreported) pg.12&13.
447 Moses Charles Deo v Republic (1987) TLR 134 (CA),
448 Augustino Mgimba vs Republic, Criminal Appeal No.436 of 2019, CAT
Iringa (unreported), Ndugulile Mandago vs Republic, Criminal Appeal No.58 of
2019 CAT Mbeya (unreported),

(i) The property was found with the suspect.
(ii) The property is positively proved to be the property

of the complainant.
(iii) The property was recently stolen from the

complainant.
(iv)The stolen thing constitutes the subject of the charge

against the accused
15.10 Circumstantial evidence
Circumstantial evidence may be not only as conclusive but

even more conclusive than an eye-witness.449 An accused
person may be convicted on the strength of it without any
other type of evidence to corroborate it.450
However, for it to be relied upon, the iculpatory facts

must be incompatible with the innocence of the accused,
and incapable of explanation upon any other reasonable
hypothesis than that of guilt of the accused.451 This means,
such evidence must be incapable of more than one
interpretation; the chain of circumstances to be proved
must point to only one conclusion that it is the accused
who is a culprit.452
The burden of proving facts which justify the drawing of

inference from the facts to the exclusion of any reasonable
449 Samson Daniel v. Republic (1934) 1 EACA 46

450 Hilda Innocent vs R, Cr. Appeal No.288 of 2019 CAT (unreported) pg.13
451 Simon Musoke v. R [1958] 1 EA 715, Hamida Mussa v. R [1993] T.L.R. 123
452 R.v. Kerstin Cameron [2003] T.L.R. 84, Godlien Daud @Mweta & another
vs Republic, Criminal Appeal No.259 of 2014 CAT (unreported) pg.12

179
hypothesis of innocence is always on the prosecution and

never shifts to the accused.453
15.11 Test for circumstantial evidence
In Mark Kasimiri vs Republic,454 and Armand Guehi vs

Republic,455 among others, the court of appeal laid down
seven conditions precedent to be considered before a
conviction based on circumstantial evidence can be
entered. The list include the following;-
(1) That the circumstances from which an inference of

guilt is sought to be drawn, must be cogently and
firmly established, and that those circumstances
should be of a definite tendency unerringly
pointing towards the guilt of the accused, and that
the circumstances taken cumulatively should form
a chain so complete that there is no escape from
the conclusion that within all human probability,
the crime wasa committed by the accused and no
else. Ref. Julius Justine & others v Republic,456
(2) That the inculpatory facts are inconsistent with the

innocence of the accused person and incapable of
explanation upon any other reasonable hypothesis
than that of guilt; and that before drawing the
inference of guilt from circumstantial evidence, it is
necessary to be sure that there are no other co-
existing circumstances which would weaken or
453 R v. Kipkering Arap Koske and Another (1949) 16 E.A CA 135, Zakaria
Jackson Magayo v R, Criminal Appeal No.411 of 2018 CAT (unreported) pg.11
454 Mark Kasimiri vs R, Cr.Appeal No.39 of 2017 CAT (unreported) pg.15,
Awadhi Gaitani @Mboma vs Republic, Criminal Appeal No.288 of 2017 CAT
(unreported) pg.22.
455 Armand Guehi vs R, Cr. Appeal No.242 of 2010 CAT (unreported) pg.17
456 Julius Justine & others v Republic, Criminal Appeal No.155 of 2005 CAT
(unreported).

destroy the inference. see Simon Musoke v.

Republic457 and John Magula Ndongo v.
Republic,458
(3) That the evidence must irresistibly point to the

guilt of the accused to the exclusion of any other
person. See Shaban Mpunzu @Elisha Mpunzu
v Republic,459
(4) That each link in the chain must be carefully tested

and, if in the end, it does nto lead to the irresistible
conclusion of the accused’s guilt, the whole chain
must be rejected. See Samson Daniel v.
Republic,460
(5) That the circumstantial evidence under

consideration must be that of the surrounding
circumstances which, by undersigned coincidence
is capable of proving a proposition with the
accuracy of mathematics. See Julius Justine &
others v Republic,461
(6) That the facts from which an inference adverse to

the accused is sought to be drawn must be proved
beyond reasonable doubt and must be connected
with the facts which the inference is to be
inferred,462
457 Simon Musoke v. Republic [1958] 1 EA 715

458 and John Magula Ndongo v. Republic, Criminal Appeal No. 18 of 2004
CAT (unreported).
459 Shaban Mpunzu @Elisha Mpunzu v Republic, Criminal Appeal No.12 of
460 Samson Daniel v. Republic (1934) 1 EACA 46
461 Julius Justine & others v Republic, Criminal Appeal No.155 of 2005 CAT
(unreported)
462 Ally Bakari v Republic [1992] TLR 10, Anetha Kapazya v Republic,
Criminal Appeal No.69 of 2012 CAT (unreported).

181
(7) That the alternative possibility must not be fanciful;

it must be plausible. Doubt about the guilt of an
accused can count only if such doubt is reasonable.
The circumstances must also be looked at, and
considered in their totality.463
15.12 Identification Evidence
This generally refers to any type of evidence that tends to

prove the identity of a person who committed a particular
crime.464 Under the common law jurisdictions, there are
several types of identification evidences. However, this
manual will discuss only six types of identification
evidences which often appear in practice under the legal
system of Tanzania. They include the following;
(1) Visual identification,

(2) Voice identification,
(3) Identification by recognition,
(4) Dock identification,
(5) Identification by ID - Parade and
(6) Forensic identification
15.12.1 Visual Identification Evidence
Visual identification evidence is evidence based wholly or

partly on what a person saw the suspect do or his presence
at the scene during the incidence or any other fact
connected to the matter at issue.465 It may be by a witness
463 Jumanne Hamis @ Upepo v Republic, Criminal Appeal No.329 of 2009

CAT (unreported), Sadiki Ally Mkindi v DPP, Criminal Appeal No.207 of 2009
CAT (unreported)
464 Oxford reference material, legal dictionary (2023)
465 Criminal Trial Court’s Benchbook, Australia (2023)

who saw the suspect for the first time or by recognition

where he was familiar with or knew the suspect before.466
15.12.1.1 Admissibility of visual identification

It is an elementary rule in East Africa and England that,
evidence of visual identification is one of the weakest kind
and most unreliable. Therefore, courts should not act on it
unless all possibilities of mistaken identity are eliminated
and fully satisfied that the evidence before it is absolutely
watertight.467
In such cases conditions favoring a correct identification

are of the utmost importance. In the case of Philip
Rukaza vs R,468 the Court of Appeal stated that;-
"We wish to say that it is not always impossible to

identify assailants at night and even where victims
are terrorized and terrified. The evidence in every
case where visual identification is what is relied on
must be subjected to careful scrutiny, due regard
being paid to all the prevailing conditions to see if,
in all the circumstances, there was really sure
opportunity and convincing ability to identify the
person correctly and that every reasonable
possibility of error has been dispelled."
15.12.1.2 Checklist for visual identification

Through my court practice, I have prepared a checklist of
conditions that I use as a test to determine correctness of
visual identification evidences. This checklist has been
466 Jumapili Msyete v. Republic, Criminal Appeal No. 110 of 2014 CAT
(unreported).
467 Abdall Bin Wendo and Another v R (1953) 20 E.A.C.A 166, Waziri Amani
v Republic (1980) TLR 250
468 Philip Rukaza v R Criminal Appeal No 215 of 1994 (Mwanza) (unreported)

183
helpful to me especially in appeal cases to determine

whether the appeal will stand or not. The list below is not
conclusive as there may be other factors to consider
depending on each case. Any evidence by a witness who
purports to have seen the suspect at the scene or
committing the offence may be tested based on the
following;469
(a) Whether or not the witness knew the suspect before.
(b) If he did not know the suspect before, whether any

identification parade was conducted thereafter.
(c) If identification parade was conducted, whether any

description of the suspect was made to the police
during reporting the matter prior to it.470 It is a
requirement that the witness must have described the
suspect to the police prior to ID parade.
(d) What period had elapsed between the original

observation and the conduct of identification parade.
Unreasonable lapse of time may cast doubts on
correct identification.
(e) Whether it was day or night.471
469 Chacha Mwita & 2 Others vs Republic, Criminal Appeal No. 302 of 2013
CAT (unreported), Sion Benard v Republic, Criminal Appeal No. 279 of 2013,
Derick Alphonce & Another vs Republic, Criminal Appeal NO. 23 of 2015
CAT (unreported) pg.9,10., Waziri Amani vs Republic [1980] TLR 250 &
Raymond Francis vs Republic [1994] TLR 2
470 Godfrey Richard vs Republic, Criminal Appeal No. 365 of 2008, CAT
(unreported), Rashid George @ Mvungi and another vs Republic, Criminal
Appeal No.424 of 2016, CAT (Unreported), Gwisu Nkonoli and three others,
Criminal Appeal No. 359 of 2014, CAT at (unreported), Omary Hussein
Ludanga and another vs The Republic, Criminal Appeal No. 547 of 2017, CAT
(unreported)Rex versus Mwango Manaa [1936] 3 EACA 29
471 Heleniko Ndimki@Kaleji & another vs Republic, Criminal Appeal No.443

(f) If it was night time, what was the source of light

which assisted the witness to identify the suspect?472
(g) The intensity and illumination of light which enabled

the identification.473
(h) Proximity (distance) between the witness and the

suspect during the commission of the crime.474
(i) Time spent under observation when the suspect was

seen by him committing the crime.475
(j) Is there any material discrepancy between witnesses

on the description of the accused?
(k) Was the identifying witness in a terror-mood at the

material time when the offence was committed? If
yes, how long did the state of terror last and whether
that would negate possibility of proper identification?
(l) Does the witness have sight problems either of seeing

long distance or short distance? The case which may
be applicable to some elderly persons and those
others with sight impairment.
(m) Whether there was any conversation. Identified voice

may corroborate other identification of visions
analyzed by the witness.
472 Yusuph Sayi &2others vs Republic, Criminal Appeal No.589 of 2017 CAT
(unreported) pgs.13&14
473 Kurubone Bagirigwa & 3 Others vs Republic, Criminal Appeal NO. 132 of
2015 CAT Mwanza (unreported) pg.8,Bakari Jumanne@Chigalawe &3 others
vs Republic, Criminal Appeal NO.197 of 2018 CAT (unreported).


185
15.12.2 Dock Identification Evidence
Dock identification is identification of accused person by a

person who is stranger to him in the dock during trial. It
occurs when a witness points out the accused standing at
the dock and identifies him as the culprit who committed
the crime.476
15.12.3 Legal position of dock identification
The current legal position in Tanzania is that, dock

identification has value only where it has been preceded by
a properly conducted identification parade at which the
witness successfully identified the accused before he was
called to give evidence at the trial.477
Dock identification is essentially valuable to corroborate

identification parade, without it, it is worthless and courts
should not rely on it.478
However, the position is broader in some jurisdictions

even within the East Africa. In Kenya for example,
although generally dock identification must be proceeded
by a properly conducted identification parade, in rare cases
it may be relied upon if the court is satisfied on facts and
circumstances of the case that, the evidence must be true
476 Jacob Mayani@Boyi vs Republic, Criminal Appeal No.566 of 2016 CAT

(unreported) pg.14&15
477 Taiko Lengei vs Republic, Criminal Appeal No.131 of 2014 CAT
(unreported) pg.11, Fahadi Khalifa vs Republic, Criminal Appeal No.573 of
2020 CAT (unreported) pg.13, Hamisi Ramadhani Lugumba vs Republic,
Criminal Appeal No.565 of 2020 CAT (unreported) pg.17
478 Halfan Mwinshehe versus The Republic, Criminal Appeal no 54 of 2018,
CAT at Dar Es Salaam(Unreported

and if prior thereto it warns itself of the possible danger of

mistaken identification.479
In Muiruri & 2 Others versus Republic (2002) 1KLR

274, the Kenyan court stated that;
But the holding in Gabriel Njoroge case (supra)

appears to us to be too broadly couched. We do not
think it can be said that all dock identification is
worthless. If that were to be the case then decisions like
Abdulla bin Wendo versus Republic (1953) 20
EACA 166, Roria versus Republic (1967) EA 583
and Charles Maitanyi versus Republic (1986) 2KAR
76, among others, which over the years have been
accepted as correctly stating the law concerning the
testimony of a single witness on identification will have
no place in our jurisprudence.
In those cases courts have emphasised the need to test

with the greatest care such evidence to exclude the
possibility of mistaken identification before such
evidence is accepted and acted upon to found a
conviction. We do not think that evidence will be
rejected merely because it is dock identification
evidence. The court might base a conviction on such
evidence if satisfied that on the facts and circumstances
of the case the evidence must be true and if prior
thereto the court duly warns itself of the possible
danger of mistaken identification.
This Kenyan position however remains only to be

persuasive, not binding on our courts.
479 Kiprono v Republic (Criminal Appeal 50 OF 2014)

[2022] KECA 790 (KLR) (24 June 2022)

187
15.12.4 Identification by Recognition
This refers to identification evidence of the suspect where

the witness claims to have been familiar with or knew him
before. It means, the witness did not only identify the
suspect but recognized him because he was familiar with
him before (he recognized him).480
15.12.5 Position of law in identification by recognition
It is trite law that identification by recognition is more

reliable than the identification of a stranger since the
witness is familiar with the suspect prior to it.481 However,
case laws have established that courts should be aware that
sometimes witnesses are liable to make mistakes in
recognizing those they claim to have known before, thus to
be accepted, such evidence is still required to be
watertight.482
15.12.6 Voice Identification
Voice identification is the identification by voice by the

person who is familiar with the suspect’s voice. In voice
identification, the witness claims to be familiar with the
voice of the suspect although they may or may not have
seen him at the scene of crime.
480 Jumapili Msyete vs Republic, Criminal Appeal No.110 of 2014 CAT 2014
(unreported),
481 Jumapili Msyete (supra)
482 Hassan Shabani @ Ugoya vs Republic, Criminal Appeal No.60 of 2022
CAT (unreported) pg.14, Shamir s/o John vs vs Republic, Criminal Appeal No.
166 of 2004, CAT at Mwanza (unreported), Lidumula S/O Luhusa @ Kasuga
vs Republic, Criminal Appeal No. 352 Of 2020, Cat At Dodoma (Unreported),
Musa Saguda vs Republic, Criminal Appeal No. 440 of 2017 CAT (Unreported)

15.12.7 Position of law in voice ID
The position of law as far as voice identification is

concerned recognizes that,
(a) Of all the categories of identification evidences, voice

identification is the weakest and most unreliable and
the law requires great care to be taken before acting
on it.483
(b) The rationale behind requirement of watertight voice

identification is that, there is always a possibility for
people to imitate other people’s voices to disguise
identity.484
(c) For it to be trusted there must be proof beyond

reasonable doubt that the witness is familiar enough
with the voice in question. Eg. most successful voice
identifications have been between close persons such
as a parent and his child, husband and wife or family
members etc.485
(d) While the witness attempts to establish that he

properly heard the suspect talking at the scene of
crime, he should further explain the strength of the
voice and the duration the suspect had taken in
talking.486
15.12.8 Forensic Identification
483 See Nuhu Selemani v. Republic [1984] 93, and Stuart Erasto Yakobo v.
Republic, Criminal Appeal No. 202 of 2004 (unreported).
484 See Stuart Erasto Yakobo v. Republic (supra).
485 Kaganja Ally and Another v. Republic [1980] TLR 270)
486 Hekima Madawa Mbunda And Another Versus The Republic, Criminal
Appeal No. 566 Of 2019, Cat (Unreported

189
Forensic identification involves an analysis of the

characteristics of trace material found at a crime scene and
the development of a probability estimate that the material
was left at the scene by a particular person. This part will
discuss forensic identifications such as;
(i) Fingerprint identification evidence,

(ii) Handwriting identification evidence,
(iii) Human DNA evidence and
(iv) Ballistic expert evidence.
All such evidences tend to provide circumstantial facts to
identify a person who is connected to the trace material
found at the crime scene and may be used as evidence to
identify who is the culprit in a particular incident.
15.12.8.1 Identification by Fingerprints
Fingerprints refer to impressions left by friction ridges of a

human finger. Under Tanzanian law, it includes also palm
print, toe print and the impression of a foot.487 It is just one
among other expert evidences, hence, has the same value as
the opinion of any other expert. The court is neither bound
by it nor required to take it as conclusive proof, rather, it
must examine it in consideration of other evidences
adduced in order to satisfy itself about the guilt of the
accused. Section 204 of the CPA states that: -
“any document under the hand of an officer

appointed for that purpose by the order of the
Director of Public Prosecutions, which purports to
be a report upon any fingerprint, or any
photographic representation of fingerprints
487 See section 47 of the Evidence Act [Cap.6 R.E 2022] and 59 and 204 (1)(4)
of the Criminal Procedure Act [Cap.20 R.E 2022]

submitted to him for examination or comparison,

shall be receivable in evidence in any inquiry, trial or
other proceedings under this Act and shall be
evidence of all facts stated in that document.”
The followings are practical essentials necessary to

remember when dealing with fingerprint evidence in court.
(1) Fingerprints are good source of evidence in criminal

law because, a person’s fingerprints do not change over
time, and the friction ridges which create fingerprints
are formed while inside the womb and grow
proportionally as the baby grows.488
(2) A person’s “friction ridge patterns” of a finger

doesn’t change over his lifetimes.
(3) No two people have the same pattern of friction ridges.

Even identical twins have different fingerprints.489
(4) Based on scientific proof, identification of individuals

by means of fingerprint is based upon three premises,
namely:490
(a) The ridge patterns on the digitals never change

during the life of an individual.
(b) The ridge patterns differ from individual to

individual, and even from digit to digit in every
individual.
488 Muganyizi Peter Michael & 3 others vs Republic, Criminal Appeal No.144
of 2020 CAT Mwanza (unreported) pg.35.

489 Muganyizi (supra)pg.34
490 ibid

191
(c) Although all patterns are individual and distinct in

their ridge characteristics, they vary within limits
which allow for systematic classification.
(5) If tendered in court as exhibit, it is not free from all

conditions and stages in the admissibility of
documentary evidences. This includes CLEARING
first for admission, ADMISSION and READING it
after it has been admitted.491
15.12.8.2 Identification by Handwriting or Signature
The handwriting expert is not the only way or mode of

proving handwritings or signatures of a person. There are
various ways in which disputed handwritings and
signatures may be proved in court. They include;
(a) Proof by the writer or witness in whose presence

the document was written or signed. As a general
rule, this works as a direct evidence and offers the best
means of proof.492
(b) Opinion of a handwriting expert. A qualified

handwriting expert can also potentially be asked to
authenticate a document in court.493 The report shall be
in accordance with the form set out in the Seventh
schedule to the CPA.494
491 Karubone Bagirigwa & 3 Others Vs Republic, Criminal Appeal No. 132 of
2015 CAT (unreported) pg.10, Robison Mwanjisi & 3 Others V R [2003] TLR
218 and Lack Kilingani v Republic, Criminal Appeal No. 305 of 2015
(unreported)
492 DPP v. Shida Manyama @Seleman Mabuba, Criminal Appeal No. 285 of
2012 CAT (unreported)pg.23

493 Section 47 of the Evidence Act Cap.6
494 Exhibit Management Guidelines 2020 of the Judiciary

(c) Evidence of persons who are familiar with the

writing of a person who is said to have written a
particular writing.This is where a person who is not a
handwriting expert testifies on the genuineness of the
handwriting in dispute, based on the familiarity with it,
which has not been acquainted solely for the purposes
of the litigation.495
(d) Comparison by the court with writing made in the

presence of the court or admitted or proved to be the
writing or signature of the person.496
If the handwriting or signature is to be proved by an
expert, he is expected to point out the particular features of
similarities or dissimilarities between the two.497
A handwriting expert is not a person who tells you, this is
the handwriting of such and such a man. He is the person
who, habituated to the examination of hand writing,
practiced in the task of making minute examination of
handwriting and directs the attention of others to things
which he suggests are similarities. That and no more than
that, is his legitimate province.498
495 Section 49(1)(2) of the Evidence Act Cap.6, Joseph Mapema v. Republic
[1986] TLR 148, Raymond Adolf Luis&2others vs Republic, Criminal Appeal
No.120 of 2019 CAT (unreported), DPP v. Shida Manyama @Seleman
Mabuba, Criminal Appeal No. 285 of 2012, Michael Mwakalula Njumba and
another vs Republic, Consolidated Criminal Appeal No.376 of 2020&276 of
2020 CAT (unreported) pg.13, Happy Kaitira Burilot/a Irene Stantionary and
another vs International Commercial Bank (T)ltd, civil Appeal No.115 of 2016
CAT (unreported),
496 Section 75 of the Evidence Act Cap.6, Fauzia Jamal Mohamed vs Oceanic
Bay Hotel Ltd, Civil Appeal NO.161 of 2018 CAT (unreported) pg.28&29
497 Hassan Salum Vs R (1964) EA 126.
498 Hassan Salum (ibid),

193
In Maulidi Abdullah Chengo v Republic499, it was

held,
“The most that an expert on handwriting can
properly say, in an appropriate case, is that he does
not believe a particular writing was by a particular
person or, positively, that two writings are so
similar as to be indistinguishable. He should point
out the particular features of similarity or
dissimilarity between the forged signature on the
questioned document and the specimens of
handwriting.”
It was further held in Nguku v. Republic that, 500
The handwriting expert is not restricted to merely

pointing out the features of similarity or
dissimilarity between a forged signature and
specimens of handwriting. He is also entitled to
express without argument an opinion on whether
two handwritings are the product of the same
hand. If the opinion is a confident one, and is not
challenged in cross-examination, the court is
entitled to accept the opinion of the expert.
15.12.8.3 Ballistic identification Evidence
Ballistic is the field of study of a weapon’s firing

characteristics especially used in criminal cases to
determine a gun’s firing capacity and whether a particular
gun fired a given bullet.501
499 Maulidi Abdullah Chengo v R [1964] 1 EA 122 and Hassan Salum Vs
R(ibid)
500 Nguku v. Republic [2004] 1 EA 188, Onyango v. Republic [1969] EA 362
501 Bryan A, Garner, Black Law Dictionary 8 Ed.

Under Section 205A(1) of the CPA, a report prepared by a

ballistic expert after examination of anything purported to
have ballistic nature, may be used as evidence in any
inquiry, trial or other proceedings.
It should further be noted that, ballistic expertise is not a

developed science where there can be regular course or
training to be undergone in any institute and given the
degree or diploma in regard thereto. One becomes an
expert in ballistic by training and experience and constant
observation.502
15.12.8.4 Human DNA identification evidence
When DNA profile of a sample found at the scene of

crime matches with DNA profile of the suspect, it can
generally be concluded that both samples have the same
biological origin hence be taken as good evidence to prove
a fact. 503
Collection and analysis of samples for Human DNA is

governed by the Human DNA Regulation Act 2009. The
Process should be clearly followed to ensure reliability and
maintaining chain of custody.504
As it is to all medical reports, DNA report is neither the

only conclusive proof nor a legal requirement to prove the
offence of rape. Rape is proved by the evidence establishing
penetration of the suspect’s penis into the female/victim’s
502 Ahmed Shilla Mkumbo vs Director of Public of Prosecutions, Criminal

Appeal No. 235 of 2010, CAT Zanzibar (unreported)
503 Anil @ Anthony Arikswamy Joseph .. Appellant Vs State of Maharashtra,
Criminal Appeal Nos.1419-1420 Of 2012,Supreme Court of India
504 Mboje Mawe and four others vs Republic, Criminal Appeal No. 86 of 2010,
CAT (unreported), Lameck Bazil and another vs Republic, Criminal Appeal 476
of 2016, CAT (unreported), Hamis Shaban @Hamis (Ustadhi) vs. Republic,
Criminal Appeal No. 259 of 2010, CAT (unreported)

195
vagina, however slight, without her consent as for adults,

and consent being immaterial for girls under the age of 18
who are not wives of the respective suspects.505
15.12.8.5 Identification Parade
This refers to police identification procedure in which a

suspect of crime is exhibited with a number of other
persons, to be identified by a witness who claims to have
seen him at the scene of crime.506
(a) Essentials in identification Parade
The following are principles reduced from case laws

regarding identification parade which can be used when
determining its propriety. When dealing with ID parade,
remember the following;
(i) Identification parade by itself is not substantive

evidence, thus it cannot stand alone to convict the
accused. If properly conducted, its value is to
corroborate dock identification of an accused by a
witness in terms of section 166 of TEA.507
(ii) Identification parade is required only where the

witness did not know the suspect before. It is not
505 Simon Emmanuel vs Republic, Criminal Apeal No.531 of 2017 CAT
(unreported) pg.12, Robert Andondile Komba vs DPP, Criminal Apeal No.465

of 2017 CAT (unreported) pg.15 and section 130(4) of the Penal Code
506 S.60 (1) to (4) of the Criminal Procedure Act, s.38 (1)(2)(3) & (4) of the
Police force and Auxiliary Services Act
507 Moses Deo v R [1987] TLR 134, Ahmad Hassan Marwa vs Republic,
Criminal Appeal No.264 of 2005 CAT (unreported) pg.12, Said Lubinza &
Others vs Republic, Criminal Appeal NO. 24 of 2012 CAT Tabora
(unreported) pg.7, Aziz Abdallah vs Republic (1991) TLR 7

required where the witness knew the suspect

before.508
(iii) It is trite law that to afford credence in the

identifying witness, the conduct of the parade must
be proceeded with the identifying witness’s
description of the suspect to the police before
seeing him at the parade. In situations where an
identification parade is conducted without prior
description of the suspect, the identification report
is taken to be unworthy of credit.509
(iv) The rationale of conducting ID parade is to

ascertain whether the witness can identify a person
he purports to have seen at the scene of crime
based on the description he made earlier prior to it.
By doing so, apart from connecting the suspect
with the incidence in question, it justifies the
suspect’s arrest by the police in connection to the
alleged crime.510
(v) The suspect must be informed of his right to seek

the presence of an advocate if any when the parade
takes place, and at the termination of the parade,
he must be asked if he is satisfied that the parade
has been conducted fairly, and the reply to that
508 God Salehe @ Shaibu Salehe vs Republic, Criminal Appeal No. 466 of 2019
CAT Iringa (unreported),

509 Samson chacha @ Mwita Pius @ Kipepeo vs Republic, Criminal Appeal
No.76 of 2018 CAT (unreported) pg.17
510 Godfrey Richard vs Republic, Criminal Appeal No. 365 of 2008, CAT
(unreported), Rashid George @ Mvungi and another vs Republic, Criminal
Appeal No.424 of 2016, CAT (Unreported), Rex versus Mwango Manaa [1936]
3 EACA 29, Christopher Chacha @Msabi and Two Others vs Republic,
Criminal appeal No. 235 CAT DSM (unreported),

197
must be recorded in the report. Omission to

conform to that requirement is a fatal.511
(vi) The officer conducting the parade will explain the

purpose of the parade and will ask the suspect if he
has any objection to any person participating in the
parade. Any objection raised by the suspect will be
noted in the Identification Parade Register and
immediate steps taken to replace those persons to
whom the suspect objects.512
(vii) There should be eight or more persons on

the parade for one suspect; ten or more for two
suspects. If there are more than two suspects, more
than one parade will normally be held, with
different personnel being used to form each
parade.513
(viii) The accused is to be allowed to take any position

he chooses and he is allowed to change position
after each identifying witness has left if he so
wishes.514
(ix) At the termination of the parade or during the

parade, the accused should be asked if he is
satisfied that the parade is being conducted in a fair
manner and a note should be made of his reply.515
511 Kanisius Mwita Marwa vs Republic, Criminal Appeal No. 306 of 2013 CAT
Mwanza (unreported), Rashid George Mvungi & another vs R Criminal Appeal
No.434 of 2016 CAT Tanga (unreported) pg.14.
512 Francis Majaliwa Deus & Two Others vs Republic, Criminal Appeal No.139
513 Samson Msamani v Republic [2002] TLR 79 CA
514 Rashid George Mvungi & another vs R Criminal Appeal No.434 of 2016
CAT Tanga (unreported) pg.14

515 Rashid George Mvungi & another vs R Criminal Appeal No.434 of 2016
CAT Tanga (unreported) pg.14

(x) It is dangerous or wrong to suggest to the

identifying witness that the person to be identified
is believed to be in the parade. In R V Bulatikwa516
the officer conducting the parade told the
identifying witness “you know a man called
Bulatikwa whom you say killed your uncle.
Come on to the veranda and see if you can find
him.” the court held this to be wrong because it
was a suggestion that the person to be identified
was actually in the parade.
(xi) The leading officer must be a police officer of the

minimum level of Assistant Inspector of police.
(NB: this was not among aspects in that case, but is
in PGO 232).
(xii)Witness of identification parade must be called to

testify otherwise the ID report will lack value.
Failure by any of them to appear is fatal.517
(b) Procedure for Conducting ID Parade
As adopted by our curts from the famous cases of

Republic Vs Mwango s/o Manaa (1936)3 EACA 39,
and Simone Musoke Vs Republic 1958 EA 7 the
procedure to be followed for a proper identification parade
is as follows:-
(1) The accused person is to be informed that he may
wish to have a lawyer or friend present when the
parade takes place.
R V Bulatikwa (1941) EACA 46

516
Benson Kibaso Nyankonda @ Olembe Patroba Apiyo v Republic [1998]

517
TLR 40 CA.

199
(2) The identifying witness must have given description

of the suspect to the police prio to the conduct of the
identification parade. See the case of Muhidini
Mohamed Lila@Emono &3 others vs R Criminal
Appeal No.443 of 2015 CAT DSM (unreported)
pg.14.
(3) The officer in charge of the case does not carry out
the identification that he may be present.
(4) The witnesses do not see the accused before the

parade.
(5) The accused is place among at least 8 persons of as

similar age, height, general appearance and class of life
as him or her as possible.
(6) The accused is to be allowed to take any position he

chooses and he is allowed to change position after
each identifying witness has left if he so wishes.
(7) Witnesses should not be allowed to communicate with

each other after they have been to the parade.
(8) The practice is to exclude all persons who have no

business at the parade;
(9) Careful notes should be taken after each witness

leaves the parade and the notes would include whether
the witness identify any person and under what
circumstances.
(10) If the witness desires to see the accused walk, hear

him speak, see him with his cap on or off, this should
be done but all persons in the parade should be asked

to do as the witness have requested as a precautionary

measure.
(11) The witness should touch the person he/she

identifies.
(12) At the termination of the parade or during the

parade, the accused should be asked if he is satisfied
that the parade is being conducted in a fair manner
and a note should be made of his reply.
(13) In introducing the witness to the parade, the

witness should be told that he will see a group of
people who may or may not include the suspected
person;
(14) Throughout the parade, it is critical that the parties

conducting the parades should act fairly to avoid
depreciation of identification as evidence. It is
dangerous or wrong to suggest to the identifying
witness that the person to be identified is believed to
be in the parade.
(15) The leading officer must be a police officer of the

minimum level of Assistant Inspector of police. (NB:
this was not among aspects in that case, but is in PGO).

201
NOTES:


203
OFMEDY MUSSA MTENGA earned

an LLB degree from the University of
Dar es Salaam in 2007 and LLM in
International Crime and Justice from
the United Nations Interregional
Crime Research Institute (UNICRI)
in collaboration with the University
of Torino, Italy in 2010. Currently, he
works as a Senior State Attorney in the
National Prosecutions Service of Tanzania,
with experience in prosecution of over twelve years. In 2019 he
authored the popular two handbooks, A STEP BY STEP GUIDE TO
TRIALS IN SUBORDINATE COURTS and A BEST PRACTICE
GUIDE TO TRIALS IN THE HIGH COURT. The two books have
been revised in 2023 with the most current legal positions and serve
as among the best guides in Court Practice. In 2023, he has authored
criminal practice guides in the subjects of (1) Defences to Criminal
Charges in Tanzania, (2) Form and Contents of a Proper Charge, (3)
Admissibility of Evidence in Court, (4) Admissibility of Confession
Statements and (5) Identification Evidence in Criminal Law. Other
guides written in Swahili include (6) Haki ya kupata dhamana Polisi
& Mahakamani, (7) Haki za Mtoto Kisheria, (8) Haki ya Mwanamke
katika Ndoa, (9) Sheria ya Ndoa Tanzania, (10) Yafahamu Makosa
ya Kujamiiana, (11) Kugawa Mirathi kisheria, and (12) Uandishi
wa Wosia Kisheria.

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Ofmedy Mussa Mtenga – LLB (UDSM), L.L.

M Unicri & Unito - Torino (Italy)

STAGES OF A CRIMINAL CASE IN SUBORDINATE COURTS

ii STAGES OF A CRIMINAL CASE IN SUBORDINATE COURTS

STAGES OF A CRIMINAL CASE

Ofmedy Mussa Mtenga

Published by Kifii Blacksmith,

Copyright ©Ofmedy Mussa Mtenga, 2023

All rights reserved. No part of this publication may be

STAGES OF A CRIMINAL CASE IN SUBORDINATE COURTS

This manual is intended to assist criminal law

iv STAGES OF A CRIMINAL CASE IN SUBORDINATE COURTS

I first and foremost give thanks to the Almighty God, the

STAGES OF A CRIMINAL CASE IN SUBORDINATE COURTS

TABLE OF CONTENTS ........................................... 4

PRE-TRIAL STAGE ................................................. 15

3.1 Arrest ................................................................................ 16

3.2 Persons with power to arrest ............................................ 16

3.3 Interviewing suspects ...................................................... 17

3.4 Search and Seizure ........................................................... 18

DPP’S POWER AND DECISION TO CHARGE ... 23

2.2 Independence of the DPP ................................................ 24

2.3 The DPP’s decision to charge ......................................... 25

vi STAGES OF A CRIMINAL CASE IN SUBORDINATE COURTS

3.2 Alternative charge ............................................................ 26

3.3 Contents of a charge ........................................................ 27

3.4 Mode of framing a charge ................................................ 27

3.5 Alteration of a charge ....................................................... 29

3.6 Plea on an altered charge (essentials).............................. 30

3.7 Defective charge .............................................................. 31

3.8 Remedies for a defective charge ...................................... 32

3.9 What makes a charge Defective ....................................... 33

STAGES OF A CRIMINAL CASE IN SUBORDINATE COURTS

4.2 Essentials of a proper plea ............................................... 43

4.3 Manner of recording a Plea.............................................. 46

4.4 Steps when accused pleads guilty .................................... 47

4.5 Categories of Plea ............................................................ 48

4.6 The impact of an own plea of guilty ................................ 55

4.7 Pleas of “autrefois acquit” ............................................... 57

4.8 Pleas of “autrefois convict”.............................................. 57

4.9 Doctrine of issue estoppel................................................ 58

4.10 Plea of Presidential Pardon .............................................. 59

4.11 Change of plea ................................................................. 60

4.12 Plea as a bar to lack of jurisdiction .................................. 61

4.13 Plea Bargaining ................................................................ 62

viii STAGES OF A CRIMINAL CASE IN SUBORDINATE COURTS

5.1 Meaning of Bail ................................................................ 66

5.3 Circumstances where bail is restricted ............................ 68

5.4 Conditions of Bail ............................................................ 70

5.5 Change of circumstance after bail ................................... 71

5.6 Power to vary bail conditions ........................................... 72

5.7 Consequences of breach of bail conditions ..................... 72

5.8 Discharge of surelties....................................................... 73

5.9 Forfeiture of Recognizance .............................................. 73

5.10 Remedy when the court refuses to grant Bail .................. 75

5.11 Bail pending appeal ......................................................... 75

5.12 Bindign Over .................................................................... 77

5.13 Adjournments cases ......................................................... 78

PRELIMINARY HEARING (PH) ........................... 80

6.2 The purpose of preliminary hearing ................................ 81

6.3 Status of undisputed facts and exhibits during ph .......... 81

6.4 Procedures of Preliminary Hearing ................................. 82

STAGES OF A CRIMINAL CASE IN SUBORDINATE COURTS