Criminal Prosecutions Case Manual

THE UNITED REPUBLIC OF TANZANIA

THE NATIONAL PROSECUTIONS SERVICE

Criminal Prosecutions Case Manual

September, 2023

National Prosecutions Service,

College of Business Studies and Law-UDOM,
P.O Box 1733 Dodoma, Tanzania.
Tel: +255 26 2963634
FAX: +255 26 2963635
Hotline: +255 26 2963634
E-Mail: [email protected]
Website: www.nps.go.tz

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 Criminal Prosecutions Case Manual

FOREWORD

Prosecution is a complex activity which requires competent Prosecutors in order to

arrive to fair and just decision. Such competent Prosecutors are expected to have
sufficient legal skills and knowledge so that they may perform their duties diligently
with high level of credibility, in order to attain Justice, Peace and Security for national
development.

Article 59B of the Constitution of the United Republic of Tanzania and Section 9(1) of
the National Prosecutions Service Act, vest powers to the DPP to prosecute criminal
cases on behalf of the Republic. In such veins, the mandates includes making decision
whether or not to prosecute, conduct and control prosecutions for any criminal offence
other than a court martial, take over and conducts criminal cases on behalf of the
United Republic of Tanzania, coordination and supervision of criminal investigation and
to discontinue at any stage before judgment any criminal proceedings. In exercising
such duties, State Attorneys and prosecutors who represent the DPP, are required to
take every reasonable step to maintain and enhance their knowledge, professional
skills and personal qualities necessary for proper performance of their duties, as well
as keeping themselves well informed about important legal developments.

This Manual puts in place critical analysis of different current principles of law as
interpreted by the Court of Appeal of Tanzania in several decisions and from other
courts’ jurisdictions. Moreover, it gives legal explanations of different reputable
authors. It is therefore expected that prosecutors will make better use of it.

It is also intended to provide quick reference to prosecutors and other legal officers on
basic steps to comply during criminal prosecution. It is my expectations that this manual
will contribute to efficient and effective prosecution of cases that would accomplish our
vision which is justice, peace and security for national development. I therefore, call
upon prosecutors to read and use it for better prosecution.

Sylvester Anthony Mwakitalu

DIRECTOR OF PUBLIC PROSECUTIONS

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ACKNOWLEDGEMENT

The Criminal Prosecutions Case Manual has been developed by NPS office for the
purpose of imparting knowledge, professional skills and personal qualities necessary
for proper performance of prosecutors’ duties. It will keep them well informed about
important legal developments.

The idea to develop this manual was brought forward by the Director of Public
Prosecution, Mr. Sylvester Anthony Mwakitalu and subsequently acted upon. I
therefore, express my appreciation to the DPP for his commitments of making his
ideas to reality.

The Director of Case Management and Coordination of Investigation, Ms. Neema

Michael Mwanda whose Division is mandated to provide expertise on case management
and coordination of investigation among others, together with her technical team, have
devoted their time and professional skills to develop this manual, the efforts which I
sincerely appreciate.

It is the anticipation of the Director of Public Prosecutions that the Manual will be
utilized effectively as guidance to the Prosecutors on daily discharge of their duties.

Joseph Sebastian Pande

DEPUTY DIRECTOR OF PUBLIC PROSECUTIONS

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ABBREVIATIONS

ACP - Assistant Commissioner of Police

CAP - Chapter
CAT - Court of Appeal of Tanzania
CECD - Corruption and Economic Crimes Division of the High Court
CPA - Criminal Procedure Act
DCEA - Drugs Control Enforcement Act
DCI - Director of Criminal Investigations
DPP - Director of Public Prosecutions
EA - East Africa
EACA - East African Court of Appeal
EOCCA - Economic and Organized Crimes Control Act
GN - Government Notice
HC - High Court
HCD - High Court Digest
IGP - Inspector General of Police
LRT - Law Reports of Tanzania
MCA - Magistrates Court Act
NPS - National Prosecutions Service
NPSA - National Prosecutions Services Act
PC - Primary Court/ Penal Code
PCCCPC - Primary Court Criminal Procedure Code
PH - Preliminary Hearing
R. E - Revised Edition
RM - Resident Magistrate
TLR - Tanzania Law Report

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TABLE OF CONTENTS

FOREWORD............................................................................................................... 1
ACKNOWLEDGEMENT............................................................................................. 2
ABBREVIATIONS....................................................................................................... 3
TABLE OF CONTENTS.............................................................................................. 4

PART I......................................................................................................................... 7
INVESTIGATION......................................................................................................... 7
1.0 Introduction........................................................................................................ 7
1.1 Crime reporting.................................................................................................. 8
1.2 Arrest .............................................................................................................. 8
1.3 Categories of arrest............................................................................................ 8
1.4 Persons empowered to arrest............................................................................ 9
1.5 Interviewing suspects......................................................................................... 9
1.5.1 Manner of Interview and recording of Statements................................ 9
1.5.2 Basic period to record the suspect’s statement.................................. 10
1.6 Search and Seizure...........................................................................................11
1.7 Search in Emergencies.................................................................................... 12
1.8 Independent Witness....................................................................................... 12

PART II...................................................................................................................... 13
CHARGE................................................................................................................... 13
2.0 Meaning of a “charge”...................................................................................... 13
2.1 Important aspects to consider when framing a charge.................................... 14
2.2 2.3 Alternative count......................................................................................... 14
2.3 Contents of a charge/information..................................................................... 14
2.4 Joinder of counts.............................................................................................. 15
2.5 Joinder of accused persons............................................................................. 15
2.6 Defective charge/information........................................................................... 15
2.7 Aspects which render a charge defective........................................................ 15
2.7.1 Duplicity............................................................................................... 15
2.7.2 Citing wrong or non-existing provision of law...................................... 16
2.7.3 Citing repealed or dead law................................................................ 16
2.7.4 Unspecified particulars of offence....................................................... 16
2.7.5 Not specifying punishing Section........................................................ 17
2.7.6 Not showing ingredients of the offence............................................... 17
2.7.7 Not indicating the place where the offence was committed................ 17
2.7.8 Variance between a charge and evidence.......................................... 18
2.7.9 Charge of armed robbery not specifying who was threatened............ 18
2.7.10 Unspecified date and time................................................................... 18
2.7.11 Improper jurisdiction of the court......................................................... 18
2.7.12 Remedy of a defective charge............................................................ 19

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PART III..................................................................................................................... 19
ACCUSED’S PLEA................................................................................................... 19
3.0 Plea taking and its modality............................................................................. 19
3.1 Modality of recording plea................................................................................ 20
3.2 Interpreters....................................................................................................... 20
3.3 Interpreters’ oath/ affirmation........................................................................... 20
3.4 Categories of plea............................................................................................ 20
3.4.1 Plea of not guilty.................................................................................. 21
3.4.2 Plea of guilty........................................................................................ 21
3.4.3 Equivocal plea of guilty....................................................................... 21
3.4.4 Unequivocal plea of guilty................................................................... 21
3.5 Tendering of exhibits upon plea of guilty.......................................................... 23
3.6 Appeal on a plea of guilty................................................................................. 23
3.7 Plea of autrefois acquit and autrefois convict................................................... 23
3.8 Plea of pardon.................................................................................................. 24
3.9 Change of plea................................................................................................. 24
3.10 The Right of Representation............................................................................ 24
3.11 Adjournments................................................................................................... 25

PART IV..................................................................................................................... 26
BAIL.......................................................................................................................... 26
4.0 Bail ............................................................................................................ 26
4.1 Police bail......................................................................................................... 26
4.2 Court bail.......................................................................................................... 27
4.3 Bail in economic offences................................................................................ 27
4.4 Bail pending appeal.......................................................................................... 27
4.5 Statutory restrictions on granting bail............................................................... 29
4.6 Conditions for Bail............................................................................................ 29
4.7 Consequences of breach of bail conditions..................................................... 30
4.8 Discharge of Sureties....................................................................................... 30
4.9 Forfeiture of Recognizance.............................................................................. 31

PART V...................................................................................................................... 32
PRELIMINARY HEARING........................................................................................ 32
5.0 Introduction...................................................................................................... 32
5.1 Procedures of Preliminary Hearing.................................................................. 32
5.2 Omission to conduct Preliminary hearing......................................................... 33
5.3 Status of facts and exhibits admitted during preliminary hearing..................... 33
5.4 Requirements to list witnesses and exhibits.................................................... 33
5.5 Complainant Statement.................................................................................... 33
5.6 PH in the High Court the Corruption and Economic Crimes Division............... 33

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PART VI..................................................................................................................... 35
HEARING.................................................................................................................. 35
6.0 Introduction...................................................................................................... 35
6.1 Witnesses’ Oaths/affirmation............................................................................ 35
6.2 Examination -in-chief........................................................................................ 35
6.3 Cross-examination........................................................................................... 35
6.4 Impeachment of witnesses’ credit using previous statements......................... 36
6.5 Failure to cross-examine on important facts.................................................... 36
6.6 Re-Examination................................................................................................ 37
6.7 Questions by the Court.................................................................................... 37
6.8 Hostile Witness................................................................................................ 37
6.9 Statements of persons who cannot be called as witnesses............................. 38
6.10 Weight of the statement tendered under Section 34B of TEA.......................... 38
6.11 Competence and compellability of witnesses.................................................. 38
6.12 Witness of tender age...................................................................................... 39
6.13 Refractory witnesses........................................................................................ 39
6.14 Non-appearance of the Complainant............................................................... 39
6.15 None appearance of accused person.............................................................. 40
6.16 Trial before the High Court............................................................................... 40
6.16.1 Committal Proceeding......................................................................... 41
6.16.2 Requirement to involve assessors...................................................... 42
6.16.3 Selection of Assessors........................................................................ 42
6.16.4 Explaining roles to assessors.............................................................. 43
6.17 Court proceedings............................................................................................ 43
6.17.1 Compliance of Section 210 of the CPA............................................... 43
6.17.2 Compliance of Section 210(3) of CPA................................................. 43
6.17.3 Authentication of proceedings............................................................. 43
6.17.4 Use of Abbreviations in proceedings................................................... 44
6.18 Closure of prosecution’s case.......................................................................... 44
6.19 Accused to be informed of his rights under Section 231 of the CPA................ 44
6.20 Prima facie Case.............................................................................................. 45

PART VII.................................................................................................................... 46
EXHIBITS AND THEIR ADMISIBILITY..................................................................... 46
7.0 Meaning of exhibits.......................................................................................... 46
7.1 Types of exhibits.............................................................................................. 46
7.2 Chain of custody.............................................................................................. 46
7.3 Relaxation of the principles of chain of custody............................................... 47
7.4 Objection as to chain of custody...................................................................... 47
7.5 Disposal of exhibits.......................................................................................... 47
7.6 Admissibility of exhibits.................................................................................... 48
7.7 Who can tender exhibits?................................................................................. 48

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7.8 Procedures for tendering exhibits.................................................................... 49

7.8.1 Laying Foundation............................................................................... 49
7.8.2 Right to comment on admissibility of an exhibit.................................. 49
7.8.3 Status of Exhibit admitted for Identification (ID).................................. 49
7.8.4 Documents to be read after admission............................................... 50
7.8.5 Admissibility of Electronic Evidence.................................................... 50
7.8.6 Proof of authenticity of electronic documents..................................... 50
7.8.7 Admissibility of Banker’s Book............................................................ 51
7.9 Confession....................................................................................................... 51
7.9.1 Ways to determine truthfulness of the confession............................... 51
7.9.2 Extra-judicial statement....................................................................... 52
7.9.3 Cautioned statement........................................................................... 52
7.9.4 Weight of Repudiated statements or Retracted statement................. 53
7.9.5 Trial within trial vis-à-vis Inquiry.......................................................... 54
7.9.6 Dying Declaration................................................................................ 55
7.9.7 Weight of Dying Declaration................................................................ 55
7.9.8 Admissibility of expert evidence.......................................................... 56
7.9.9 Handwriting......................................................................................... 56
7.9.10 Ballistic expert..................................................................................... 57
7.9.11 Finger Prints comparison.................................................................... 57
7.9.12 Human DNA........................................................................................ 57
7.9.13 Medical Report by a Medical Practitioner............................................ 58
7.9.14 Trophy valuation certificate................................................................. 59

PART VIII................................................................................................................... 60
DEFENCE................................................................................................................. 60
8.0 Introduction...................................................................................................... 60
8.1 Lies of an accused person in his defence........................................................ 60
8.1.1 Co-accused evidence.......................................................................... 61
8.1.2 Defence advancing prosecution case................................................. 61
8.2 Possible defences............................................................................................ 61
8.2.1 Defence of alibi................................................................................... 61
8.2.2 Proof of alibi........................................................................................ 62
8.2.3 Defence of Insanity............................................................................. 62
8.2.4 Defence of Intoxication........................................................................ 63
8.2.5 Defence of person or property............................................................ 64
8.2.6 Defence of Provocation to murder...................................................... 64

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PART IX..................................................................................................................... 66
JUDGMENT AND SENTENCES............................................................................... 66
9.0 Composition of judgment................................................................................. 66
9.1 Prohibition of extraneous matters.................................................................... 67
9.2 Conviction........................................................................................................ 67
9.3 Substitution of conviction in minor and cognate offences................................ 67
9.4 Sentencing....................................................................................................... 67
9.5 Imposing maximum or minimum penalties....................................................... 68
9.6 The use of the word “liable” in sentencing....................................................... 68
9.7 Pre-conviction period spent by accused under Custody.................................. 69
9.8 Concurrent and consecutive sentence............................................................. 69
9.9 Punishment for a first offender......................................................................... 69
9.10 Sentence in murder case for a minor............................................................... 69
9.11 Sentencing where the offender murdered several persons............................. 70
9.12 When appellate court can interfere with a sentence........................................ 70

PART X...................................................................................................................... 71
POST TRIAL PROCEEDINGS.................................................................................. 71
10.0 Appeals............................................................................................................ 71
10.1 Notice of appeal to the High Court................................................................... 71
10.2 Notice of appeal to the Court of Appeal........................................................... 71
10.3 Petition of appeal to the High Court................................................................. 71
10.4 Summary rejection of the Appeal..................................................................... 72
10.5 Determinations of grounds of appeal............................................................... 73
10.6 Matters not raised at the first appellate court................................................... 73
10.7 Concurrent finding of the lower court............................................................... 73
10.8 Revision........................................................................................................... 73
10.9 Interlocutory Orders......................................................................................... 74
10.10 Review ............................................................................................................ 74
10.10.1 Review is not an appeals in disguise.................................................. 75
10.10.2 What amounts to manifest error on face of records............................ 75

PART XI..................................................................................................................... 76
MISCELLANEOUS MATTERS................................................................................. 76
11.0 Doctrine of recent possession.......................................................................... 76
11.1 Doctrine of issue estoppels in Criminal Matters............................................... 76
11.2 Functus officio.................................................................................................. 77
11.3 Contradictions of witnesses and discrepancy.................................................. 77
11.4 Consent and certificate of the DPP in economic offences............................... 78
11.5 Retrial principles............................................................................................... 78
11.6 The Principle of Common intention.................................................................. 78
11.7 Asset Recovery and Forfeiture......................................................................... 79
11.8 Rationale behind Asset Forfeiture and Recovery............................................. 79
11.9 Benefits of asset forfeiture and recovery.......................................................... 81

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11.10 Preservation of assets pending confiscation order.......................................... 83

11.11 Money Laundering........................................................................................... 84
11.12 Juvenile Cases................................................................................................. 84
11.13 Identification..................................................................................................... 84
11.13.1 Visual Identification............................................................................. 84
11.13.2 Voice Identification.............................................................................. 85
11.13.3 Identification by recognition................................................................. 85
11.13.4 Dock Identification............................................................................... 85
11.13.5 Identification parade............................................................................ 86

TABLE OF STATUTES AND RULES....................................................................... 87

LISTS OF CASES..................................................................................................... 88

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PART I
INVESTIGATION

1.0 Introduction
Investigation means the collection and analysis of evidence;- it entails proceeding to
the crime scene, ascertainment of the facts and circumstances of the case, discovery
and arrest of suspected offender, collection of evidence related to the commission of
the offence which may consist of examination of various persons including the accused
and the reduction of the statement into writing, search of places or seizure of things
considered necessary for the investigation and to be produced at the trial and formation
of the opinion as to whether on the materials collected, there is a case to place the
accused before the trial.1 A well-investigated case ends with a successful prosecution.
The supervisions and coordination of criminal investigations in Tanzania is under the
Director of Public Prosecutions as per Section 9(1) (c) of the NPSA.2
1.1 Crime reporting
Investigation begins once an investigative organ receives information that discloses the
commission of an offence. Every person has a duty to report the commission of a crime
under Section 7(1) of the CPA.3 Once a crime has been reported to the investigative
organ, the officer receiving such complaint/information must immediately record it in
the report book and take action to start investigation. The rationale is to timely gather
evidence on every fact of the case.4 This will reduce risks of losing potential evidence
and escape of suspects.
1.2 Arrest
Arresting a suspect is one of the earliest stages of investigation. It must be dealt with
at the earliest possible manner in order to maximize possibility of recovery of evidence.
Generally, during arrest, the arresting officer is required to inform the suspect about the
offence for which he is arrested and record the responses the suspect makes.5 However,
in circumstances where during the arrest the suspect ought to know the substance of
the offence for which he is arrested, or if he makes impracticable for the arresting officer
to inform him of that offence, the arresting officer may arrest him without informing him
about the offence for which he is arrested.6
1.3 Categories of arrest
Arrest is classified into two categories namely, arrested with warrant and arrest without
warrant. Section 13 of the CPA, provides that, Magistrates, Ward Secretaries and
Village Secretaries may issue warrants of arrest or summons for bringing the suspect
1
N
 aser Bin Abu Bakr Yafai vs The State of Maharashtra & Anr, Criminal Appeal No.1166 of 2021,
Supreme Court of India (unreported)
2
[Cap. 430 R.E 2022]
3
[Cap.20 R.E 2022].
4
Police General Orders No.311 R.E 2021
5
P.G.O 236 para 9
6
Section 23 (3) of the CPA

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to court after receiving under oath allegations that there are reasonable grounds that a
person has committed an offence. Arrest without warrant is made in respect of offences
stipulated under Sections 14, 16, 17, 18 and 28 of the CPA.
1.4 Persons empowered to arrest
Under the CPA, police officers, magistrates and private persons are empowered to
effect an arrest. A police officer is empowered under Sections 14(1) of the CPA to arrest
without warrant any person suspected to have committed or is about to commit an
offence in his presence. He may also arrest with warrant issued pursuant to Section
13 of the CPA. Section 17 empowers the Magistrate at any time to arrest or issue a
warrant of arrest directing the arrest of any person when he reasonably believes that
such person has committed an offence.
Also, under Section 18 of the CPA, a Magistrate is empowered to arrest or direct any
person to arrest a suspect when committed an offence in his presence provided that
the power of the Magistrate to do so is within his jurisdiction. Section 16 of the CPA
empowers a private person to arrest any person who in his presence commits an
offence referred under Section 14 of the CPA. Section 31(1) of the CPA directs a person
arresting another without a warrant, without unnecessary delay to hand him over to
the police officer or to the nearest police station or, in the absence of either, to the
Ward Secretary or the Secretary of the Village Council for the area where the arrest is
made. That means private persons are legally permitted to arrest criminals but only as
permitted by law. 7
1.5 Interviewing suspects
An interview of a suspect is designed to ascertain whether the suspect committed the
alleged offence or not. In order for the interview to be carried out to the suspect, the
investigator has to take into consideration provisions of Sections 48, 50, 51, 52, 53, 54,
55, 56, 57 and 58 of the CPA. These provisions among other things impose obligations
to investigators to accord rights to the suspect before and during interview.
1.5.1 Manner of Interview and recording of Statements
When a police officer is interviewing a person in order to ascertain whether he has
committed an offence, he has to record or cause such interview to be recorded. This
requirement is mandatory unless it is in all circumstances impracticable to do so. When
the person interviewed makes a confession either orally or in writing relating to an
offence, the police officer shall immediately during the interview or after the interview is
completed make a record in writing.8
Two ways of recording cautioned statements are one under Section 58 which is a result
of a volunteered and unsolicited statement of a suspect and two under Section 57 of
CPA which is a result of either answers to questions asked or partly answers to questions
asked and partly volunteered statements.9
7
Grace Charles Omary vs Republic, Criminal Appeal No 13 of 2020(HC Musoma Unreported)
8
Section 57 & 58 of the CPA
9
M
 safiri Benjamini v Republic, Criminal Appeal No.549 of 2020 CAT Dodoma (unreported), Flano
Alphonce & 4 others, v Republic, Criminal Appeal NO.366 of 2018 CAT DSM (unreported)

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1.5.2 Basic period to record the suspect’s statement

Section 50 (1) (a) of the CPA requires cautioned statements of suspects to be recorded
within four (4) hours after the suspect is under restraint. Non-compliance of Sections
50 and 51 of the CPA renders the cautioned statement inadmissible. Such period may
be extended as per Section 51(a) (b) of the CPA.
In calculating a period available for interviewing a person who is under restraint in
respect of an offence, there shall not be reckoned as part of that period any time while
the police officer investigating the offence refrains from interviewing the person, or
causing the person to do any act connected with the investigation of the offence.10 The
following circumstances shall be excluded: -
(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 required by Section 54 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, enticed to communicate,
or
(iv) Arranging or attempting to arrange for the attendance of a person
who, under the provisions 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) or,
(d) While the person under restraint is consulting with a lawyer.
Along with that, it should be noted that, objections in respect of non-compliance with
Section 50 of the CPA can be raised only during trial, not at the appellate level.11

10
 gasa Sita Mabundu vs Republic, Criminal Appeal No.254 of 2017 CAT (unreported), Anold Loishie
N
@ Leshai vs Republic, Criminal Appeal No.249 of 2017 CAT (unreported), Aliyu Dauda Hassan and
others vs Republic, Criminal Appeal No.282 of 2019 CAT (unreported), Roland Thomas@ Mwangamba
vs Republic, Criminal Appeal No. 308 of 2007 CAT (unreported)., Ramadhani Mashaka vs. Republic,
Criminal Appeal No. 311 of 2015 CAT (unreported), Yusufu Masalu@Jiduvi& 3 others vs Republic,
Criminal Appeal No 163 of 2017 CAT (unreported), Michael Mgowole and Shadrack Mgowole vs
Republic, Criminal Appeal No 205 of 2017 CAT (unreported), Msafiri Jumanne &2 others vs Republic,
Criminal Appeal No. 187 of 2006 CAT (unreported).
11
Nyerere Nyague v Republic, Criminal Appeal No.67 of 2010 CAT Arusha (unreported)

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1.6 Search and Seizure

Search can be conducted in the ordinary course under Section 38 of the CPA or
by emergence under Section 42 of the CPA. Section 38 (1) of the CPA expressly
empowers any police officer in charge of a police station if he is satisfied that there
is a reasonable ground for conducting a search into a building, vessel, carriage, box,
receptacle or place without delay, either to search or to issue a written authority to any
police officer under him to carry out the search. Section 2 of the CPA defines “officer
in charge of a police station “to include any officer superior in rank to an OCS as well
as any officer above the rank of constable standing or acting in the position of police
officer in charge of a police station12. The officer conducting the search should comply
with all requirements under Section 38 of CPA and his testimony should reveal such
grounds.
The officer seizing the thing shall issue a receipt acknowledging the seizure of that
thing, being 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.13 Furthermore, omission to comply with
Section 38 is not fatal especially where there is no dispute of the suspect being found
with the item the subject matter of the case and where he confesses to have been
found with it.14
In Circumstances where search is carried pursuant to Section 40 of the CPA, a police
officer or other person to whom addressed upon the issuance of search warrant by the
Court may execute the search on any day between the hours of sunrise and sun set
or the court may authorise to execute the warrant at any hour.
The distinction between search carried under Sections 38 and 40 of the CPA is
that, the former is exercised by officer in charge of a police station or any police
officer under him through a written authority issued by him(Search order) and it can
be executed at any time, while the later can be exercised by the police officer or any
person upon securing a search warrant dully issued by the court and it has to be
executed between sunrise and sunset unless authorised by the court upon application
to be executed at any hour.
1.7 Search in Emergencies
Generally, one of the demands under the provisions of Section 38 and 40 is that a
Search order or search warrant should be issued to a police officer or any other person
so authorized before such officer executes a search.

12
 yubu Mfaume Kiboko and another v Republic, Criminal Appeal No.694 of 2020 CAT DSM (unreported)
A
13
Section 38 of the CPA
14
J amali Msombe & another vs Republic, Criminal Appeal No.28 of 2020 CAT Iringa (unreported), Hamis
Muhibu Abdallah v Republic, Criminal Appeal No.288 of 2021 CAT Mtwara (unreported).

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However, there is an exception to the general rule based on section 42 of the CPA
under which in emergency circumstances a Police officer is permitted to search and
seize anything relevant to the case without warrant15. However, upon seizure, the
documentation of the seized items is of utmost importance. The officer conducting the
search under Section 42 of the CPA should establish in his testimony the circumstances
for executing search under emergency.
Apart from the procedure stipulated under the CPA, the procedure relating to search
and seizure is also provided by other laws such as 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.
1.8 Independent Witness
An independent witness may include any person who qualifies to be a competent
witness and has no direct personal interest in the case in issue.16 The issue of presence
of independent witnesses during search depends on circumstances prevailing in
each particular case. There are cases in which absence of independent witnesses is
an incurable irregularity.17 On the other hand, there are those which such absence is
curable.18

15
 eleman Nassoro Mpeli v Republic, Criminal Appeal No.3 of 2018 CAT (unreported), Moses
S
Mwakasindile v Republic, Criminal Appeal No.15 of 2017 CAT (unreported), Slahi Maulid Jumanne vs
Republic, Criminal Appeal No.292 of 2016 CAT (Unreported), Marceline Koivogui vs Republic Criminal
Appeal No.469 of 2017 CAT (unreported), Stephen Jonas & another vs Republic, Criminal Appeal
No.337 of 2018 CAT (unreported), Selemen Nassoro Mpeli vs Republic, Criminal Appeal No.03 of 2018
CAT (unreported), Allan Duller vs Republic, Criminal Appeal No.367 of 2019 CAT (unreported), Popart
Emanuel vs Republic, Criminal Appeal No. 200 of 2010 CAT (unreported).
16
G /L/Cpl Ekow Russel – Appellant vs. Republic, Criminal Appealno: J3/5/2014 In The Superior Court Of
Judicature In The Supreme Court
17
P ascal Mwinuka Vs Republic, Criminal Appeal NO. 258 of 2019, CAT Iringa(unreported) & Shabani
Said Kindamba, Criminal Appeal No. 390 OF 2019, CAT (unreported)
18
Sophia Seif Kingazi vs Republic, Criminal Appeal No.273 of 2016 CAT (unreported), Tongora Wambura
vs DPP Criminal Appeal No.212 of 2006 CAT (unreported)

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PART II
CHARGE

2.0 Meaning of a “charge”

A charge is a formal accusation of an offence as a preliminary step to prosecution.19
It is a written notice of the precise and specific accusation which the accused person
is required to plead. It must convey to the accused person with sufficient clearness
and certainty that the prosecutions intend to prove against him which he would have
to clear himself.20 A charge is an essential legal instrument which helps the accused
person to understand the nature of the case he is facing, the gravity of the sentence
and ultimately how he should prepare his defence.21
2.1 Important aspects to consider when framing a charge
In framing a charge, the prosecutor has to avoid using ambiguous, unclear and vague
words related to accusations made against the accused person. Words used in a charge
should reflect a section of the enactment creating the offence. In framing a charge,
the Section and the law of the said offence should be mentioned in the statement of
offence. Furthermore, a charge should contain sufficient elements of the offence in its
particulars.22
2.2 2.3 Alternative count
An alternative count is an additional count laid against the accused in the same charge
where there are series of acts which constitute a series of the same offence committed.
The accused person can only be charged with an alternative count if a single act or
series of acts is of such a nature that it is doubtful which of several offences the facts
will prove. It suffices to say, if the first count is not proved, the evidence will prove the
count in the alternative. 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
count dies automatically.23
2.3 Contents of a charge/information
A charge being a foundation of criminal trial must be drawn in compliance with the
provisions of law. Section 132 of the CPA requires the charge to contain statement
and particulars of offence. The mode on which offences are to be charged is provided
under 135 of the CPA. In drafting a charge, the prosecutor should abide with the above
provisions of law. The statement of the offence must contain a specific Section of law
incriminating the accused and punishment Section. Particulars must show the name of
19
Black’s law Dictionary 8th Edition, pg.248
20
S
 .C Sarkar,The Code of Criminal Procedure, 10th Ed. LexisNexis Butterworths Wadhwa pg.1126
21
K
 assimu Mohamed Selemani vs. Republic, Criminal Appeal No. 157 of 2017 CAT (Unreported).
22
K
 assimu Mohamed Selemani vs. Republic(supra), Musa Mwaikunda vs republic [2006] T.L.R. 387,
Angulile Jackson@Kasonya vs. DPP, Criminal Appeal No. 162 of 2019 CAT (unreported)
23
R
 aymond Mwinuka vs Republic, Criminal Appeal No.366 of 2017 CAT (unreported), Derick Alphonce
and Another vs Republic, Criminal Appeal No. 23 of 2015 CAT (unreported), Republic v Nasa Gin-
ners Ltd [1955] 22 EACA 434

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 Criminal Prosecutions Case Manual

the accused, the date he committed the offence, the place the offence was committed,
essential elements of offence, what he did and to whom the offence was committed.
The five “Ws” rule should be observed when drafting charges 24(i.e. WHO, WHEN,
WHERE, WHAT&TO WHOM).
2.4 Joinder of counts
According to Section 133 of the CPA, a charge may be joined in the same arraignment
if the offences are originated from similar facts or form a sequence of the same or
similar character. Each count exists as a distinct and separate complaint upon its own
facts. The trial of several charges in one case will make the trial a quicker one.25
2.5 Joinder of accused persons
Under Section 134 of the CPA, joinder of accused persons refers to a situation where
more than one accused persons are charged and prosecuted together for the same or
different offences committed in the course of the same transactions.
2.6 Defective charge/information
A charge/information which does not meet the requirements of the law under Sections
132 and 135 of the CPA is termed as defective charge.26 Generally, proceeding on with a
defective charge will render it unproved even if witnesses are procured to testify for it.27
In framing the charge, the prosecutor is duty bound to ensure that the charge discloses
the offence known to the law. Section 129 of the CPA empowers the Magistrate, to
reject a charge which in his opinion does not disclose any offence, by making an order
refusing to admit the complaint or formal charge and record his reasons for such order.
The charge which does not conform to the law and which does not place the accused
in a position to understand the nature of the offence facing him is said to prejudice him
and renders a trial unfair and therefore a nullity.
2.7 Aspects which render a charge defective
2.7.1 Duplicity
A charge is said to be duplex if two or more dissimilar offences are confined in one
count. Such a duplex charge places the accused in a position not to understand which
of the two offences in a count he is required to answer or make his defence and that is
what leads to a miscarriage of justice on his part.28
24
 ebron Kasigala vs. Republic Criminal Appeal No. 03 of 2020 CAT (unreported), Obadia Daniel and
H
another vs. Republic Criminal Appeal No. 492 of 2016 CAT Kigoma (unreported), Anold Elia fikiri vs.
Republic, Criminal Appeal No. 333 of 2018 CAT (unreported), Republic v Loibori [1949]16 E.A.C.A. 86
25
M  winyi Jamal Kitalamba vs. Republic, Criminal Appeal No. 348 of 2018 CAT (unreported)
26
J uma Charles @ Reuben & another vs Republic, Criminal Appeal No. 566 of 2017 CAT Arusha
(unreported).
27
J aphet Anael Temba vs Republic, criminal Appeal No. 78 of 2017 CAT Arusha (unreported)
28
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 Iringa (unreported), Simon
Kitalika and others vs Republic, Criminal Appeal No.468 of 2016 CAT Iringa (unreported)

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 Criminal Prosecutions Case Manual

2.7.2 Citing wrong or non-existing provision of law

A charge containing a wrong or non-existing provision of law is as good as no charge,
although since each case may be decided according to its circumstances, some
defectiveness may be tested by whether the accused did not understand the allegation
facing him and whether it was prejudicial to him. If facts reveal that he understood
the charge, the defectiveness may be curable, especially where the shortfalls are
remedied by the particulars of the offence.29
2.7.3 Citing repealed or dead law
As a general rule, it is a fundamental principle that a criminal charge should not emanate
from a dead law or a repealed one. Having such a charge is as equal to having no
charge at all. Charging the accused person and prosecuting under the repealed law is
incurably defective and the same vitiates the trial. However, depending on each case,
a long-time position was maintained in our jurisdiction that charging on repealed law
may be curable if the repealed Section is re-enacted in identical words with the current
statute such that it cannot be said the accused has in any way been prejudiced.30 The
test of prejudice to the accused person has always been whether, despite defects, he
understood the nature of the charges facing him.
2.7.4 Unspecified particulars of offence
The particulars of offence in the charge have to evidently specify clearly the conduct
by the accused which constitutes an offence. This is so important because the
prosecution side will during trial endeavour to prove it and the accused needs to be
well informed of it in order to cross-examine witnesses as well as preparing for his
defence. However, for the charge to be defective under this scenario, the accused
must have been prejudiced. In circumstances where a certain fact does not come out
clearly in the charge, the same can be deduced from the testimony of witnesses. That
ailment is curable under the provisions of Section 388(1) of the CPA.31
2.7.5 Not specifying punishing Section
Criminal principles dictate that an accused person must know the consequences of the
trial he is facing. Failure to indicate a punishing provision may render the trial unfair.
In the event, a charge must indicate the punishing Section which in fact will knock the
accused’s head on how he should make his defence, having in mind the seriousness
of sentence thereafter.
29
J umanne 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),
30
E rnest Jackson @ Mwandikaupesi and another vs Republic,Criminal Appeal No.408 of 2019 CAT
(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.
31
Kubezya John vs Republic, Criminal Appeal No.438 of 2015 CAT (unreported), Mohamed Clavery vs
Republic, Criminal Appeal No.470 of 2017 CAT (unreported), Hamis Mohamed Mtou VS, Republic ,
Criminal Appeal No.228 of 2019 CAT (unreported), Anold Elia fikiri vs. Republic, Criminal Appeal No.
333 of 2018 CAT (unreported), Alexandris Athanansios vs Republic, Criminal Appeal No.362 of 2019
CAT (unreported)

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 Criminal Prosecutions Case Manual

However, in some circumstances this defect may be curable under Section 388 of the
CPA.32
2.7.6 Not showing ingredients of the offence
A proper charge must show every ingredient of the offence. The ingredients of the
offence are to be clearly shown in the particulars of the charge. Such particulars as
may be are necessary for giving reasonable information as to the nature of offence
the accused person is facing and hence martial his defence accordingly. In some
circumstances, failure to indicate ingredients of the offence may be cured by the
evidence.33
2.7.7 Not indicating the place where the offence was committed
Cases are instituted in the jurisdiction where the offence was committed. Likewise,
a charge in all ways should indicate the place where the offence was committed.
Showing a specific place will enable the accused person to know exactly the places
where the offence was committed.34
2.7.8 Variance between a charge and evidence
It is important for a charge to indicate the date when the offence was committed and
the same should be supported by the testimony of witnesses in Court. Some of the
things that make variance between the charge and evidence includes but not limited
to, date, place and the evidence itself. Evidence must support what is stated in the
charge to avoid variance. In the process of the trial, should there occur any variance
between the charge and testimony of witnesses, the prosecutor is required to amend
or substitute the charge according to Section 234 of the CPA. However, depending on
each case, the omissions may be cured by the evidence of witnesses.35
32
 bdul Mohamed Namwaga Madodo vs Republic,Criminal Appeal No.257 of 2020 CAT Mtwara
A
(unreported), 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)
33
Damian Luhele vs Republic, Criminal Appeal No.501 of 2007 CAT Mwanza (unreported), Masalu
kayeye vs Republic, Criminal Appeal No.120 of 2017 CAT Mwanza (unreported), Hamis Mohamed
Mtou vs Republic, Criminal Appeal No.228 of 2019 CAT DSM (unreported), Francis Paul vs Republic
Criminal Appeal No.228 of 2019 CAT Arusha (unreported), George Senga Musa vs. Republic, Criminal
Appeal No. 108 of 2018 CAT Arusha (unreported), Noah Paulo Gonde and another vs Republic,
Criminal Appeal No.456 of 2017 CAT Mbeya (unreported)
34
Shaban haruna@Dr Mwangilo vs Republic, Criminal Appeal No.396B of 2017 CAT Arusha (unreported),
Magobo Njige Republic vs. Republic, Criminal Appeal No. 442 of 2017 CAT (unreported)
35
N
 kanga Daudi Nkanga vs Republic, Criminal Appeal No. 316 of 2013 CAT Mwanza (unreported),
Mohamed Cladvery vs Republic, Criminal Appeal No.470 of 2017 CAT DSM (unreported), Shaban
Haruna @ Dr Mwagilo vs Republic, Criminal Appeal No.396B of 2017 CAT Arusha (unreported), Damian
Luhele vs Republic, Criminal Appeal No.501 of 2007 CAT Mwanza (unreported), Deus Josias@Deo vs.
Republic Criminal Appeal No.191 of 2018 CAT DSM(unreported), Justine Mtelule vs Republic, Criminal
Appeal No.482 of 2016 CAT Iringa (unreported), Japhet Anael Temba vs. Republic, Criminal Appeal
No. 78 of 2017 CAT Arusha (unreported) ,Noah Paulo Gonde and another vs. Republic, Criminal
Appeal No. 456 of 2017 CAT Mbeya (unreported), Ambros Elias vs. Republic, Criminal Appeal No. 368
of 2018 CAT Dar Es Salaam (unreported), George Mwanyingili vs. Republic, Criminal Appeal No. 335
of 2016 CAT Mbeya (unreported), Enock Matatala vs. Republic, Criminal Appeal No. 468 of 2019 CAT
Iringa (unreported)

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 Criminal Prosecutions Case Manual

2.7.9 Charge of armed robbery not specifying who was threatened

It is a requirement of law that a charge of armed robbery must indicate the person to
whom the threat was directed. Failure of that renders it defective.36 This is so because
one of the ingredients of the offence of armed robbery under Section 287A of the
Penal Code [Cap.16 R.E 2022] is threatening or use of violence against any person.
However, when the omission does not cause any prejudice to the accused person, the
defect may be curable under Section 388 of the CPA.37
2.7.10 Unspecified date and time
There are circumstances where the prosecution puts a charge with unspecified date
and time. For instance, the charge will have words like “during the period of September
and December”. If that is done, it is taken that the accused is made aware of the charge
and a trial court is entitled to deal with the whole case on the basis if such period the
offence was repeated more than once or there are a series of incidents. However, if the
charge states that the offence was committed on unknown date and place, the same is
taken to be defective.38
2.7.11 Improper jurisdiction of the court
A charge must be preferred to a proper court with jurisdiction. Jurisdiction must be
categorised on the subject matter involved in the offence and territorial jurisdiction.
Likewise, one court cannot entertain a charge with no jurisdiction to adjudicate.39
2.7.12 Remedy of a defective charge
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 charge 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;- and all amendments shall be made upon such terms as to the Court shall
seem just. This position is governed by Section 234 of the CPA in terms of a charge in
Subordinate Courts, and 276 CPA for Information in the High Court. The altered charge
or information must be endorsed and dated, and must be read over to the accused to
plea.40

36
M  asumbuko Mhoja & another v Republic, Criminal Appeal No. 435 of 2017 CAT Shinyanga (unreported),
37
P  eter Marco @ John v Republic, Criminal Appeal No. 258 of 2017 CAT Tabora (unreported)
38
J aphet Anael Temba vs Republic, Criminal Appeal No. 78 of 2017 CAT Arusha (Unreported).
39
Omary Athumani@Magari and others vs. Republic, Criminal Appeal No. 173 of 2016 CAT Dar Es
Salaam (unreported).
40
Director 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 (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), Zebedayo Mtetema vs. Republic, Criminal Appeal No. 484 of 2015 CAT
Mbeya (unreported), Albanus Aloyce and another vs Republic, Criminal Appeal No. 283 of 2015, CAT
Arusha (unreported), Sumari Hau and four others vs Republic, Criminal Appeal No. 305 of 2007,
CAT Arusha (unreported), Hassan Said Twalibu vs Republic, Criminal Appeal No. 91 of 2019, CAT
Mtwara(unreported), Justine Masegula vs Republic, [1977] LRT 32

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 Criminal Prosecutions Case Manual

PART III
ACCUSED’S PLEA

3.0 Plea taking and its modality

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.41 Normally when the accused is
taken before the court to answer the accusation facing him, the court is duty bound to
explain the charge to him in ordinary language and assist, as required, the accused
person by explaining the nature of the charge. After a charge has been read over, the
court shall ask the accused whether the allegation is admitted or denied as provided
for under Section 228(1) and 275 of the CPA. It is a trite principle of the law that in
our criminal justice system, 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 the procedure renders the trial a nullity.42
3.1 Modality of recording plea
The plea of the accused has to be recorded as nearly as possible in the words he
uses. Each accused’s plea should be separately recorded in respect of each count to
avoid him being prejudiced.43
3.2 Interpreters
In criminal proceedings, where it appears that an accused person does not understand
the language used during the proceedings of the case, it is a requirement of Section
211 of the CPA for the Court to avail him with an interpreter in order to enable him
understand the language spoken and follow proceedings.44 The duty to arrange for
the interpreter is vested to the court. The omission is fatal and vitiates the entire
proceedings.45
3.3 Interpreters’ oath/ affirmation
It is the position of the law that when an interpreter is engaged in criminal proceeding
before he starts performing his duties, is required to take an oath or affirmation to the
effect that he is going to truthfully and faithfully interpret ones’ language into another.
The rationale is to faithfully interpret the proceedings/evidence for the benefit of
justice.46

41
B ryan A Garner, Editor in Chief, Black’s Law Dictionary, 8th Edition, pg.1189
42
J uma Gulaka and 2 others vs Republic, Criminal Appeal No. 585 of 2017, CAT (unreported), Yustine
Robert vs Republic, Crimnal Appeal No. 329 of 2017, CAT (unreported).
43
S
 tanley Murithi Mwaura vs Republic, Criminal Appeal No. 144 of 2019, CAT, (unreported).
44
B
 ashirakandi Emmanuel vs Republic, Criminal Appeal No.167 of 2022 CAT (unreported)
45
D
 astan Makwaya vs Republic, Criminal Appeal No. 179 0f 2017, CAT (unreported), Havyalimana
Azaria and two others vs. Republic, Criminal appeal No. 539 2015, CAT (unreported)
46
H
 avyalimana 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)

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3.4 Categories of plea

There are two categories of plea which are supposed to be pleaded by the accused
person when arraigned before the court of law that is, the “plea of guilty” and “plea of
not guilty” under Sections 228, 282 and 275 of the CPA.
3.4.1 Plea of not guilty
This occurs where the accused person denies the truth of the charge. Following the
denial of the truth of the charge, the court shall record the plea of not guilty and shall
proceed to hear the case subject to Sections 228, 229, 279 and 283 (3) of the CPA.
Where the accused person refuses to plea the Court shall order a plea of not guilty to
be entered to him as per Section 228(4) of the CPA.
3.4.2 Plea of guilty
When the substance of the charge is stated to the accused person and he admits the
truth of the charge, his admission shall be recorded as nearly as possible in the words
used by the accused as a “plea of guilty” to the charge. The Magistrate or Judge shall
then convict him and pass sentence unless there appears to be sufficient cause to the
contrary.47
3.4.3 Equivocal plea of guilty
The plea of guilty is said to be equivocal in any of the following instances;- when the
plea of guilty was taken of the charge which does not disclose all elements of the
offence, when a plea of guilty is taken to have been induced by undue influence,
when a plea is ambiguous, imperfect or unfinished and the charge discloses unknown
offence. Equivocal plea of guilty cannot ground conviction because the accused did
not understand the nature of the charge and the consequence of pleading guilty.48
3.4.4 Unequivocal plea of guilty
This refers to an unambiguous, finished, clear and an unmistaken plea of guilty which
is properly taken and capable to ground conviction in line with the requirement of
the law. Unequivocal plea of guilty justifies that, the accused person appreciated the
nature of the charge and intended to plea.49 This position has been emphasised by the
Court of Appeal by laying down procedures on how an unequivocally plea of guilty has
to be conducted that: -

47
S ee Section 228 and 282 of the CPA.
48
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)
49
Amos Lesilwa vs Republic, Criminal Appeal No.411 of 2015 CAT Dodoma (unreported), Clement
Pancras vs Republic, Criminal Appeal No. 321 of 2013, Court of Appeal of Tanzania,CAT Mwanza
(unreported), Khalid Athumani vs Republic (2006) TLR 79, Amos Masasi vs Republic, Criminal Appeal
No. 280 of 2019, Court of Appeal of Tanzania, CAT Bukoba(unreported), Emmanuel Ambrous vs
Republic, Criminal Appeal No. 555 of 2017, Court of Appeal of Tanzania, CAT Arusha(unreported).

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(i) Every element of the charge should be explained to the accused,

(ii) The accused should admit or deny every element of the offence,
(iii) What he says should be recorded in the form which will satisfy an appeal
court that he fully understood the charge and pleaded guilty to every
element of it unequivocally
(iv) The words constituting the plea of guilty should come from the accused
himself and not from the other part.
Moreover, in order to ensure that the accused person appreciated the nature of the
charge, the court of appeal laid down procedures to be followed by the trial court while
taking plea. Court must comply with the following procedures: -
(i) When a person is charged, 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 person all the essential
ingredients of the offence charged. 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.
(iii) 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.
(iv) 
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 guilty, the
magistrate should record a change of plea to “not guilty” and proceed to
hold a trial.
(v) 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.
(vi) The statement of facts and the accused’s reply must be recorded,
3.5 Tendering of exhibits upon plea of guilty
Tendering and admitting exhibits after the accused person has unequivocally pleaded
guilty to the charge, is not a legal requirement though it is desirable to do so, provided
that the accused admitted the facts of the case that disclosed all the elements of the
offence.50

50
L
 aurence 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)

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3.6 Appeal on a plea of guilty

Generally, the accused person under Section 360 of the CPA is not allowed to appeal
on a plea of guilty, except where the plea was imperfect, ambiguous, unfinished, he
pleaded guilty as a result of mistake or misapprehension, that the charge disclosed no
offence known to law and that upon the admitted facts he could not in law have been
convicted of the offence charged. He can also appeal against sentence.51
3.7 Plea of autrefois acquit and autrefois convict
Plea of Autrefois acquit and autrefois convict happens where the accused person indicates
that he has previously been tried and acquitted or convicted of the same offence. The
plea is accorded under Sections 137, 228(5) (a) and 280(1)(a) of the CPA.52Generally,
Section 137 of the CPA bars the prosecution against a person who has been previously
acquitted or convicted by a court of competent jurisdiction on the same facts and for the
same offence, unless the said previous conviction or acquittal has been reversed or set
aside. Moreover, the provision discourages double jeopardy of an accused person to be
tried on the same offence which he was previously acquitted or convicted.53
Plea of autrefois convict and autrefois acquit is supposed to be raised by the accused
person at any stage of the proceedings before the closure of the case and the burden of
proof lies on the accused person.
The court is required once a plea is raised to satisfy itself on what actually transpired
therein and take judicial notice. Once the plea of autrefois convict and autrefois acquit
is raised successfully, the effect is to nullify the charge, proceedings and judgment.54
3.8 Plea of pardon
Plea of pardon is where the accused person informs the Court that he has previously
been tried and convicted of the same offence he is facing now but was pardoned. Once
the court satisfies itself that a plea of pardon is nothing but true, the effect is to nullify
the proceedings.
The court shall make enquiries as to the truth of that indication. If the court finds such a
plea to be false, the person will be required to plead to the charge.55
3.9 Change of plea
Change of plea happens when the accused person has previously entered the plea of
not guilty or guilty after the charge was read over and explained to him, then if he wishes
51
L aurence Mpinga v. Republic [1983] TLR 166, Joel Mwangambako vs Republic, cited supra, Seleman
Rajabu vs Republic, Criminal Appeal No. 149 of 2013, CAT, Mwanza (unreported).
52
Twaha Hussein vs. Republic Criminal Appeal No.415 of 2017 CAT Mwanza (unreported) Maduhu
Masele vs Republic [1991] TLR 143, Yasini Selemani vs Republic [1969] HCD 262
53
Twaha Hussein vs. Republic, Criminal Appeal No. 415 of 2017 CAT Mwanza (unreported)
54
Twaha Hussein vs. Republic, Criminal Appeal No. 415 of 2017 CAT Mwanza (unreported), Yasin
Seleman vs Republic (1969) HCD 262, Maduhu Masele vs Republic, (1991) TLR 143, Godson Ndobho
vs Republic [1993] TLR 287, Ally Hassan Mpapata vs Republic [1992] TLR 265, Republic vs Msusa
Ally [1987] TLR 190
55
See article 45(1) (a) of the Constitution of the United Republic of Tanzania (as amended), and Section
228(5) and 280 of the CPA.

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to change his plea either from the “plea of not guilty” to the “plea of guilty”. This can be
done at any time before judgment. Once the accused changes his plea the followings
need to be observed in compliance with Section 228 of the CPA: -
(i) The trial court should indicate that the accused has changed his previous
plea i.e., from plea of not guilty to the plea of guilty and the vice versa.
(ii) The statement of the accused should be recorded in the nearest words
used by him.
(iii) The facts of the case need to be narrated by the prosecutor. It is trite law
that a plea of guilty is revocable any time before passing a sentence.56
3.10 The Right of Representation
The right to be represented is automatic once an accused person is charged with
capital offences which attract capital punishments. The right to be represented when
the accused is charged with other offences is not automatic. The accused is at liberty
to engage an advocate to defend him in non-capital offences or apply for legal aid
upon fulfilment of the conditions set out under Section 33 of the Legal Aid Act, [CAP
21 RE 2019].57
3.11 Adjournments
The law requires, once an accused person has taken a plea of not guilty before the
court with competent jurisdiction, investigation must be complete and procedure for
hearing of the case has to commence before expiration of sixty days (60) pursuant to
Section 225(4) of the CPA. However, according to section 225 (4) and (5) of 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
circumstances have not been complied with nowhere in the section is it implied or
expressed that a hearing after the expiry of sixty days is a nullity otherwise subsection
225 (5) would be useless as it does not bar subsequent charges on the same facts 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 it has little or no consequence
since discharging of the accused would not bar subsequent proceedings against him
for the same offence. The purpose of section 225 generally, and subsection (4) and
(5) in particular, is to expedite trials but not to clear accused persons from criminal
liability.58

56
M
 asumbuko 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
57
M
 ashaka Marwa v Republic, Criminal Appeal No.138 of 2018 CAT Mwanza (unreported), Makenji
Kamura vs Republic, Criminal Appeal No. 30 of 2018, Court of Appeal of Tanzania, Mwanza (unreported),
Manyinyi Gabriel @ Gerisa vs Republic, Criminal Appeal No.594 of 2017 CAT Mwanza (unreported),
Maganga Udugali vs Republic, Criminal Appeal No.144 of 2017 CAT,Tabora (unreported).
58
R
 obinson Mwanjisi Versus The Republic, 2003 TLR 281

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The law under Section 225(4) and (5) of the CPA, provides for exception by allowing
adjournment of the case beyond statutory time limit of sixty (60) days. The referred
exceptions include when a certificate for extension of time is filed by the Regional
Crimes Officer, State Attorney and the Director of Public Prosecutions.

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PART IV
BAIL

4.0 Bail
Bail is defined as a mechanism designed to ensure that a person who is subject to
the strictures of the law stays out of confinement while the process of inquiry into his/
her liability in the criminal process is being investigated, or if he has been charged
in a court of law, his/her personal freedom is guaranteed before the end of the trial
through him/her furnishing security as part of the undertaking to turn up whenever
called up. The institution of bail, therefore, falls on the positive side of the principle of
presumption of innocence. This principle can only be derogated from on public policy,
and only when the public policy is backed by clear provisions of the law.59
The rationale behind bail is to enable the accused person to enjoy his personal freedom
which emanates from the concept of presumption of innocence enshrined under Article
13(6) (b) and 15 of the Constitution of the United Republic of Tanzania of 1977.
4.1 Police bail
This refers to a temporary release of a suspect of a crime pending investigation or
arraignment by the police or any other investigative agency to guarantee his appearance
when needed.60 Section 64(1) (c) of the CPA and Section 16 of the Primary Court
Criminal Procedure Code (PCCPC) provide that, if no formal charge has been brought
against a person within 24 hours after the person was arrested in connection with any
serious offence and it appears that further inquiries must be conducted which cannot
be completed within a short time, the police or any investigation organ must release
the person to bail. Subjects to the aforementioned provisions of law, police bail should
be issued only to bailable offence pursuant to Section 148 of the CPA.
However, it has to be noted that despite such a requirement, the judgment and
proceedings of the trial court cannot be vitiated by the failure to release to bail a
person under custody.61
4.2 Court bail
It means a temporary release of an accused person awaiting trial or appeal on
conditions stipulated by the court to guarantee his appearance in court.62
When a charge has been instituted and an accused person is brought before the court
to answer the accusation facing him, the court enjoys the power to admit an accused
person to bail subject to the conditions provided for under Sections 148 of the CPA,
29(4) & 36 of EOCCA and Section 29 of DCEA. Bail under Section 29 of DCEA will
depend on the weight of the substance/narcotic drug found with the accused person.

59
D
 PP vs Bashiri Waziri and Another, Criminal Appeal No. 168 of 2012, CAT (unreported).
60
 he Judiciary Bail Guidelines of September, 2020
T
61
M
 akenji Kamura v Republic, Criminal Appeal No.30 of 2018 CAT (unreported)
62
The Judiciary Bail Guidelines (supra)

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4.3 Bail in economic offences

Accused persons charged with economic offences can be admitted to bail depending
on the value of the property involved.63
(i) The District and Resident Magistrate Court have powers to hear and
determine bail application between the arraignment and the committal,
if the value of any property involved in the offence charged is less than
Three Hundred Million Shillings under Section 29(4) of EOCCA.64
(ii) After committal of the accused for trial but before commencement of the
trial before the Court, is vested in the High Court regardless of the value of
the property. See Section 29(4) of EOCCA.
(iii) After the commencement of the trial and regardless of the value of the
property involved is vested to the court (Corruption and Economic Crimes
Division of the High Court) under Section 29(4) of EOCCA.
(iv) Where the value of the property involved in the offence charged is three
hundred million shillings or more at any stage before commencement of
the trial in the High Court.65
4.4 Bail pending appeal
Where a person is convicted and sentenced to imprisonment, he may be admitted
to bail by the Subordinate Court or High Court which convicted and sentenced him
pending hearing of his appeal under Sections 24 of the MCA and 368 of the CPA.
The High Court or, where an appeal lies from a subordinate court exercising
extended powers, the subordinate court concerned, may, if it thinks fit, pending to the
determination of an appeal from the High Court or the subordinate court concerned to
the Court of Appeal, admit the appellant to bail in the same circumstances in which the
court would have given bail under Section 368 of the Criminal Procedure Act.66
Bail pending appeal is quite different from those applicable to bail pending trial. In
applications for the grant of bail pending trial, courts are guided by one fundamental
principle that is to say right to presumption of innocence whereas in the bail pending
appeal, the applicant who is a convict no longer enjoys that right. In considering
whether or not bail should be granted pending appeal, the courts are guided by the
following principles67:-
(1) 
That bail is a right applicable only to cases where the accused person has not yet
been convicted,

63
S ee Sections 29(4) and 36 of EOCCA
64
D PP vs Bashiri Waziri and Another, Criminal Appeal No. 168 of 2012, CAT (unreported).
65
M wita Joseph Ikoh and Two Others vs Republic, Criminal Appeal No. 60 of 2018, CAT (unreported)
66
S.10 of Appellate Jurisdiction Act [Cap.141 R.E 2019] and rule 11(2) of the Tanzania Court of Appeal
Rules 2009
67
Amon Mulotwa Mwalupindi vs DPP, Criminal Application No. 09/06 of 2020, Court of Appeal of Tanzania,
CAT Mbeya (unreported), Lawrence Mateso vs Republic [1996] TLR 118

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(2) 
Bail pending an appeal can be granted only where there are exceptional and
unusual reasons or where there is an overwhelming 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 of 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 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.”
4.5 Statutory restrictions on granting bail
Statutory provisions restricting police and court bail are found in Section 148(5) (a)
to (e) of the CPA and Section 36(4) (a) to (f) of EOCCA. The restrictions referred to
above fall under two categories one, offences declared by law to be non-bailable, two,
offences ordinarily bailable against which bail is restricted under certain circumstances.
In the first category, the police and the court are statutorily prohibited to grant bail.68
In the second category, the court or police bail may not be granted under the following
circumstances, that is: one, where the accused person has a previous conviction and
sentence exceeding three years, two, where an accused person has previously jumped
bail or breached its conditions, three, where it is necessary to keep the accused in
custody for his own protection or safety and seriousness of the charge, four, actual
money or property whose value exceeds three hundred million shillings;- unless that
person deposits cash or other property equivalent to half the amount involved.69 The
Director of Public Prosecutions may file a certificate under Section 36(2) of EOCCA
objecting the accused to be granted bail on the ground that his/her release on bail
would likely prejudice the interest of the public.70
4.6 Conditions for Bail
The conditions that may be imposed by the court also fall into two categories that’s,
mandatory conditions that must be imposed and discretionary conditions which may
be imposed at the discretion of the court.71

68
D  PP vs Bookeem Mohamed @ Ally, Criminal Appeal No. 217 of 2019, CAT,Mwanza (unreported),
DPP vs Bashiri Waziri and Another, Criminal Appeal No. 168 of 2012, CAT Mwanza(unreported), The
Attorney General vs Disckson Paulo Sanga, Criminal Appeal No.175 of 2020 CAT DSM (unreported).
69
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, DSM (unreported) page 19-20.
70
DPP vs Li Ling-ling, Criminal Appeal No. 508 of 2015, CAT DSM (unreported), Emmanuel Simforian
Massawe vs Republic, Criminal Appeal No. 252 of 2016, CAT DSM, (unreported).
71
See Sections 148(6) (a) and (b) of the CPA, Section 36(5) and (6) of the EOCCA and Section 16(3) of
the PCCPC.

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The following are mandatory conditions, whenever a court admits a person to bail
that is to surrender by the accused person to the police of his passport or any other
travel document, restriction of the movement of the accused to certain area like towns,
villages or other areas of his residence.72
In addition to the mandatory conditions prescribed under Section 148 (6), the Court
may impose any other conditions which it deems fit for assuring appearance of the
accused for trial or resumption of trial at the time and place required or as may be
necessary in the interests of justice or for the prevention of crime as stipulated under
Section 148(7).73
The subordinate court has no power to vary bail conditions set in the case before it
such powers are enjoyed by the high court.74
4.7 Consequences of breach of bail conditions
Bail can be cancelled for various reasons, for example, if 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.
Where a person absconds while he is on bail or not being on bail, fails to appear
before the court on the date fixed and conceals himself so that a warrant of arrest may
not be executed;-
(i) Such of his property, movable or immovable, as is commensurate to the
monetary value of any property involved in the case may be confiscated by
attachment and,
(ii) The trial in respect of that person shall continue irrespective of the stage
of the trial when the accused person absconds, after sufficient efforts have
been made to trace him and compel his attendance.
If a person admitted to bail absconds, he may not be considered to bail in the same
case. The accused person who absconds while on bail, the property of equivalent
value may be confiscated by attachment and the trial shall continue in his absence.75
4.8 Discharge of Sureties
There are three situations in which a surety can be discharged, namely, one, on
application to a magistrate to have his bond discharged, two, where the surety dies
and three, when the case is finalized, subject to Sections 155 and 156 of the CPA.

72
S ee Section 148 (6) CPA.
73
H amisi 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.
74
Silvester Hills Dawi and Another vs DPP, Criminal Appeal No. 250 of 2006, Court of Appeal of Tanzania,
(unreported).
75
S
 ee Section 158 and 159 CPA.

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4.9 Forfeiture of Recognizance

When the accused person jumps bail or absconds, the court shall call upon the surety
to show cause as to why the bond should not be forfeited and he may be ordered to
pay the whole bond or a lesser sum as the court may deem fit and just. If he fails his
movable property may be attached and sold to recover an amount equivalent to the
value of the bond76. In practice, forfeiture should not be automatic;- the surety should
be given a reasonable opportunity to explain to the court how he is prepared to trace
the accused person after the case.77

76
S
 ee Section 160 CPA.
77
R
 . v. Abdallahamid s/o Daleyusufu, Crim. Rev. 74-D-67;- 23/6/67;- Georges, C.J.

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 Criminal Prosecutions Case Manual

PART V
PRELIMINARY HEARING

5.0 Introduction
Preliminary hearing is provided under Section 192 of the CPA read together with The
Accelerated Trial and Disposal of Cases Rules, G.N. No.192 of 1988, Section 35 of the
EOCCA and rule 15 of the Economic and Organized Crime Control (The Corruption
and Economic Crimes Division) Rules 2016. Once a charge is read over to the accused
person and he pleads not guilty, the Court shall hold a Preliminary hearing.
The main purpose of preliminary hearing is to accelerate trials or to promote
expeditious trials and cost-effective disposal of criminal cases. It ascertains at the
earliest stage in the proceedings matters which are not in dispute and those in dispute.
Once undisputed matters are ascertained, the only evidence will be brought at trial on
the disputed matters.78
5.1 Procedures of Preliminary Hearing
Procedures of conducting preliminary hearing are enshrined under Section 192 of the
Criminal Procedure Act and The Accelerated Trial and Disposal of Cases Rule, G.N.
No.192 of 1988.79 These are: -
(i) The court to explain to the accused person if he is not represented the
nature and purpose of the preliminary hearing.
(ii)  he prosecution to read facts of the case constituting elements of the
T
offence in question and tender any document(s) which the prosecution in
its opinion thinks can be tendered at this stage.
(iii) The court to ask the accused or on the basis of facts read by the prosecution
which matters are not in dispute.
(iv) The court shall list 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) The court to read over and explain to the accused in a language that he
understands after which the Memorandum shall be signed by the accused
and his advocate (if any) and the prosecutor as well as the Magistrate or
Judge.
78
S
 emburi Musa vs Republic, Criminal Appeal No. 236 of 2020 CAT Kigoma (unreported), Jackson Daudi
vs Republic, Criminal Appeal No. 111 of 2002 CAT Mwanza (unreported), Joseph Munene and Ally
Hassani VS. R Criminal Appeal No. 109 of 2002 CAT Arusha (unreported).
79
G
 .9963 Rafael Paul @ Makongojo vs Republic, Criminal Appeal No. 250 of 2017,CAT Arusha
(unreported), Republic vs. Abdallah Salum @ Haji, Criminal Revision No. 4 of 2019 CAT DSM
(unreported), Republic vs Francis Lijenga Criminal Revision No. 3 of 2019 CAT DSM (unreported), Ally
Chande @ Ally & Another vs Republic, Criminal Appeal No. 16 of 2006 CAT DSM (unreported).

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5.2 Omission to conduct Preliminary hearing

Generally, preliminary hearing is a mandatory procedure in trial of criminal cases.
However, failure by the Court to hold a preliminary hearing does not vitiate the
proceedings of the trial if the accused person was not prejudiced.80
5.3 Status of facts and exhibits admitted during preliminary hearing
Facts and exhibits which are admitted during preliminary hearing are deemed to have
been ascertained or proved.81 However, if in the course of the trial, the court is of the
opinion that the interest of justice so demand, it may direct that any fact or document
admitted or agreed in a memorandum filed under this Section be formally proved.82
5.4 Requirements to list witnesses and exhibits
The law governing preliminary hearing both in the subordinate and the High Court
does not provide for the requirement of listing or mentioning witnesses and exhibits at
this stage.83
5.5 Complainant Statement
Complainant statement is guided by Section 9(3) of CPA, the defence has right to be
availed with copy of complainant statement. However, failure to avail the complainant’s
statement to the accused does not vitiate trial it is curable under Section 388 of CPA.84
5.6 PH in the High Court the Corruption and Economic Crimes Division
At the High Court the Corruption and Economic Crimes Division, preliminary hearing
is governed by Section 35 of the EOCCA and Rule 15 of the Economic and Organise
Control (The Corruption and Economic Crimes Division) Rules, 2016.
In this court, it is mandatory for the prosecution and defence to provide the names
of witnesses and a list of exhibits, under Rule 15 (Supra). Other procedures remain
the same, except naming of witnesses and list of exhibits whether documentary or
physical. Failure to do so, the witnesses and exhibits will not be accepted in Court.

80
B  enard Masumbuko Shio and another vs. Republic, Criminal Appeal No. 213 of 2007 CAT. Arusha
(Unreported), Director of Public Prosecutions vs Jaba John, Criminal case No. 206 of 2020 CAT
Mwanza (unreported)
81
S  ee Section 192(4) CPA, Section 35(3) of the EOCCA.
82
Mgonchori (Bonchori) Mwita Gesune vs Republic, Criminal Appeal No. 410 of 2017 CAT Mwanza
(unreported).
83
Tafifu Hassan @ Gumbe vs. Republic. Criminal Appeal No. 436 of 2017 CAT Shinyanga (unreported),
Felix Lucas Kisinyila vs. Republic, Criminal Appeal No. 129 of 2002 CAT DSM (unreported), Jackson
Daudi vs Republic, Criminal Appeal No.111 of 2002 CAT Mwanza (unreported), Yusuph Nchira vs Dpp,
Criminal Appeal No. 174 of 2007 CAT Arusha (unreported).
84
Daniel Kivati Monyalu vs Republic, Criminal Appeal No. 224 of 2019, CAT at Dar es Salaam (Unreported),
Jilala Justine vs Republic, Criminal Appeal No. 441 of 2017 CAT at Shinyanga (unreported)

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PART VI
HEARING

6.0 Introduction
Upon completion of preliminary hearing, the prosecutor shall open the case against
the accused person and call witnesses to adduce evidence in support of the charge.85
In criminal trials, the case for prosecution always begins.
6.1 Witnesses’ Oaths/affirmation
The law requires that evidence of any witness must be given on oath or affirmations.
Section 198(1) of CPA requires every witness in a criminal case or matter to be
examined upon oath or affirmation in accordance with the provisions of the Oaths and
Statutory Declarations Act [Cap 34 R.E. 2019]. Non-compliance with the requirements
of Section 198(1) of the CPA entails fatal consequences resulting to evidence being
expunged.86 However, the exception to this rule is under Section 127 (2) of TEA.
6.2 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. 87 It is during examination in
chief when the party concerned is afforded with an opportunity to tell his/her side of
the story and elicit his/her account of what transpired concerning the incidence and
produce exhibits in his possession or power in accordance with the law.88 It is governed
by Sections 146 and 147 (1) and (2) of TEA. Leading questions shall not, if objected to
by the adverse party, be asked in an examination in chief, or in re-examination, except
with the permission of the court.89 The prosecutor is required to examine the witnesses
in their proper order so as to bring out facts in their logical sequence to prove the case.
6.3 Cross-examination
Is an examination of a witness by the adverse party. It is governed by Sections 146,
147 and 155 of TEA and Section 290 of the CPA. The cross examination follows
immediately upon examination in chief. The essence of cross examination is that it is
the interrogation by the advocate of one party of a witness called by his adversary with
the object either to obtain from such witness admissions favourable to his case or to
discredit him.

85
S
 ection 229 of the Criminal Procedure Act [Cap. 20 R.E 2022]
86
D
 avid Livingstone Simkwai and eight (8) others vs Republic, Criminal Appeal No. 146 of 2016 CAT
Mbeya (Unreported), Abas Kondo Gede vs Republic, Criminal Appeal No. 472 of 2017 CAT DSM
(unreported), Mawazo Mohamed Nyoni and two (2) others vs Republic, Criminal Appeal No, 184 of
2018 CAT DSM (unreported), Amos Seleman vs Republic, Criminal Appeal No. 267 of. 2015, CAT
Dodoma (unreported), Janeroza d/o Petro vs Republic, Criminal Appeal No. 269 of 2016, CAT Tabora
(unreported)
87
B
 lack’s Law Dictionary, 8th Edition Edited by Bryan A. Garner, at page 492]
88
K
 assim Salimu Mnyukwa vs Republic, Criminal Appeal 405 of 2019, CAT DSM (unreported)
89
S
 ection 151(1) of the Evidence Act [Cap. 6 R.E 2022]

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Cross examination is the most effective of all means for extracting truth and exposing
falsehood.90 The objectives of cross-examination are;- 91
(i) To elicit from the witness evidence supporting the cross-examination
party’s version of the facts in issue,
(ii) To weaken or cast doubt upon the accuracy of the evidence given by the
witness in chief, and,
(iii) In appropriate circumstances to impeach the witness’s credibility.
In essence, the prosecutor when cross-examining a witness is argued to direct his
questions to the three above objectives.
6.4 Impeachment of witnesses’ credit using previous statements
The procedure for impeaching a witness by using his previous statements under
Section 154 and 164 of TEA, requires the following to be done. 92
1. The previous statement must be read to the witness.
2. The attention of the witness must be drawn to those parts which are intended to
demonstrate contradictions.
3. The Statement should be tendered in evidence.
6.5 Failure to cross-examine on important facts
It is trite law that the decision not to cross-examine the witness at all or on a particular
point is tantamount to an acceptance of the unchallenged evidence as accurate and
will be estopped from asking the trial court to disbelieve what the witness said.93
6.6 Re-Examination
Re-examination is the examination of a witness by a party who called him, subsequent
to the cross-examination94. The re-examination shall be directed to the explanation
of matters referred to in cross-examination;- and if new matter is, by permission of
the court, introduced in re-examination, the adverse party may further cross-examine
upon that matter.

90
S arkar Law of Evidence, 16th Ed. Wadhwa Nagpur Vol.2
91
D PP vs Justice Lumina Katiti &3 others, Criminal Appeal No. 15 of 2018 CAT DSM (unreported).
92
Hatari Masharubu @ Babu Ayubu v. R, Criminal Appeal No.590 of 2017, CAT at Mwanza (Unreported),
Lilian Jesus Fortes vs Republic, Criminal Appeal No. 151 of 2018, CAT DSM (Unreported), Waisiko
Ruchere @ Mwita vs Republic, Criminal Appeal No. 348 of 2013, CAT Mwanza (unreported), R. v.
Donatus Dominic @ Ishengoma & 6 others, Criminal Appeal No.262 of 2018, CAT Bukoba (Unreported),
Marwa Wang’iti Mwita and another v. R [2002] TLR 39
93
D
 PP vs Justice Lumina Katiti &3 others, Criminal Appeal No. 15 of 2018 CAT DSM (unreported),
Rashid Sarufu vs Republic, Criminal Appeal No. 467 of 2019, CAT Iringa (unreported), Kadili Ally vs
Republic, Criminal Appeal No. 99 of 2020, CAT DSM (unreported), Frank Julius Ndege vs Republic,
Criminal Appeal No. 359 of 2019, CAT DSM (unreported), Simon Shauri Awaki @Dawi vs Republic,
Criminal Appeal No. 62 of 2020, CAT Arusha (unreported).
94
S
 ection 146(3) of the CPA

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The rationale of re-examination is to give an opportunity to reconcile the discrepancies

between the statements in examination in chief and cross-examination or to explain
any statement inadvertently made in cross-examination or to remove any ambiguity in
the deposition or suspicion cast on the evidence by cross-examination.95
6.7 Questions by the Court
The trial magistrate has the duty to put questions for clarification, if need be after the
witness has finished testifying, though he may as well interrupt and seek clarification
when the witness is testifying.96
6.8 Hostile Witness
A hostile witness is a witness who manifests hostility or prejudice under examination in
chief to the party who has called him.97
When a person who called a witness to put any question to him, having made up
his mind to treat the witness as ‘’hostile’’, he, after showing a copy of the witness’s
previous statement to the court, formally apply to the court for leave to do so. The
Court should then hear the opposite party, if he has any objection to the application.
Then after comparing and contrasting the evidence of the witness and the contents
of his statement, and after considering the witness demeanor in the witness box, as
well as the objections, if any, from the opposite party, the court should make its ruling
on the application. If the court grants it, the applicant should then proceed to attempt
to discredit the evidence of the witness by way of cross-examination.98 A witness who
turns hostile can be prosecuted for perjury.99
6.9 Statements of persons who cannot be called as witnesses
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 subject to the provision of Section 34B (1) of Evidence Act, be admissible
in evidence as proof of the relevant fact contained in lieu of direct oral evidence. On
the other hand, for the written or electronic statement to be admissible in court it is a
mandatory requirement of the law that all conditions stipulated under Section 34B (2)
(a) – (f) must cumulatively be complied with.

95
S
 arkar Law of Evidence, 16th Ed. Wadhwa Nagpur Vol.2
96
K
 assim Salum Mnyukwa v Republic, Criminal Appeal No. 405 of 2019 CAT DSM (unreported)
97
S
 ee Section 163 of TEA.
98
R
 . v. Donatus Dominic @ Ishengoma & 6 others, Criminal Appeal No.262 of 2018, CAT Bukoba
(Unreported), Nathaniel Alphonce Mapunda and Benjamian Alphonce, Mapunda V R [2006] T.L.R.
396, Inspector Baraka Hongoli and two (2) others Vs. Republic, Criminal Appeal No. 238 of 2014,
CAT Tabora (Unreported), Republic vs Fabian Paul, Criminal Appeal No. 14 of 199, CAT Mbeya
(unreported), Jumanne Mketo v R [1982] TLR 232
99
Amiri Mohamed v R [1994] TLR 12

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6.10 Weight of the statement tendered under Section 34B of TEA

Statement admitted under Section 34B of TEA is competent evidence capable of
grounding conviction without necessarily being corroborated. It does not require
corroboration in order to be relied upon.100
It is another position of the Court of Appeal that the statement of a person who
never appeared in court to testify, so as to be cross-examined by the accused and
his demeanour assessed by the trial court;- could not without corroboration, ground
conviction against the accused.101 However the later position seems to wipe away the
objective behind the enactment of Section 34B of TEA.
6.11 Competence and compellability of witnesses
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 (whether of body or mind) or any
other similar cause. 102
Section 130(1) of TEA provides that, where a person charged with an offence is the
husband or the wife of another person that other person shall be a competent but not
a compellable witness on behalf of the prosecution. Spouse can give evidence after
she or he is informed by the court of the effect of him giving evidence. The evidence of
that person shall not be admissible unless the court has recorded in the proceedings
the compliance.
Section 130(2) of TEA provides that, spouses are competent and compellable witnesses
in any case where the person 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 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.103
6.12 Witness of tender age
Section 127 (2) of TEA provides that, “a child of tender age may give evidence without
taking an oath or making affirmation but shall, before giving evidence, promise to tell
the truth to the court and not to tell any lies.” The child of tender age is defined under
subsection (4) of Section 127 to mean “a child whose apparent age is not more than
fourteen years.”104
100
Omary Mohamed China Vs Republic, Criminal Appeal No. 230 of 2004, CAT DSM (unreported)
101
William Onyango Nganyi @ Dadii and 5others vs Republic, Criminal Appeal No. 9 of 2016, CAT DSM
(unreported)
102
S
 ee Section 127(1) of TEA.
103
Alex Minani and two others vs Republic, Criminal Appeal No. 275 of 2019, CAT Bukoba (unreported),
Manyanda Ncheya vs Republic, Criminal Appeal No. 437 of 2017, CAT Shinyanga(unreported), Zamir
Rahimu vs Republic, Criminal Appeal No. 418 of 2018, CAT Dar es Salaam(unreported), Matei Joseph
vs R [1993] TLR 152
104
Wambura Kiginga v Republic, Criminal Appeal No. 301 of 2018 CAT Mwanza (unreported), Menald
Wenela vs The Director of Prosecutions, Criminal Appeal No. 336 of 2018, CAT at Mbeya (Unreported),
Shaban Said Likubu vs Republic, Criminal Appeal No. 228 of 2020, CAT at Mtwara (unreported),
Bashiru Salumu Sudi vs Republic, Criminal Appeal No. 379 of 2018, CAT at Mtwara (Unreported)

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6.13 Refractory witnesses

A refractory witness is a witness who, without sufficient excuse, refuses to be sworn
or affirmed, having been sworn or affirmed refuses to answer any question put to him,
refuses or neglects to produce any document or thing which he is required to produce
or refuses to sign his deposition.105
Where a witness manifests refractory behaviours as aforementioned, the court may
adjourn the case for a period not exceeding eight days and may in the meantime
commit him to prison, unless he sooner consents to do what is required of him. Where
such witness, upon being brought before the court at or before an adjourned hearing,
again refuses to do what is required of him, the court may, if it sees fit, again adjourn
the case and commit him for the like period and so again from time to time until he
consents to do what is so required of him.106
6.14 Non-appearance of the Complainant
If the accused person appears in obedience to the summons served upon him at the
time and place appointed in the summons for the hearing of the case, or is brought
before the court under arrest, then, if the complaint, having had notice of the time and
place appointed for the hearing of the charge 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 the hearing of the case until some other date and, pending the
adjourned hearing, either admit the accused person to bail or remand him to prison or
take such security for his appearance as the court thinks fit.107
Where the court dismisses the charge and discharges an accused person under
Section 222 or 226 of the CPA, the complainant may, within thirty days from the date of
dismissal, file an application for re-institution of the charge. The court may, upon being
satisfied that the complainant’s absence was due to reasons to which the complainant
had no control or could not within the circumstance have control, grant, application for
re-institution of the charge and proceedings, if any.108
6.15 None appearance of accused person
After adjournment of the case if on the date of hearing the accused does not appear, it
is lawful for the court to proceed with hearing in his absence. The hearing will proceed
to its finality, and if the accused is convicted and sentence, he will have to be arrested
and sent to prison to serve his sentence. However, before he is sent to prison, he must
be brought before the trial Court to be heard as to why he should not proceed to serve
the sentence entered in his absence.109 Where the court convicts the accused person
in his absence, it may set aside the conviction upon being satisfied that his absence
was from causes over which he had no control and had a probable defence on merit.

105
S ection 199 of the CPA
106
ibid
107
S ection 226(1) of the CPA
108
S ee Section 226 (5) and (6) of the CPA.
109
S ee Section 226(1), 226(2) and 227 of CPA.

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The accused person should be brought to court after his re-arrest and be given a
chance to explain his absence as to why he has absconded himself during the trial.
Failure to comply with that requirement will vitiates sentence entered against him.110
6.16 Trial before the High Court
The High Court may inquire into and try any offence subject to its jurisdiction in any
place where it has power to hold sittings and, except as provided under Section 93,
no criminal case shall be brought under cognizance of the High Court unless it has
been previously investigated by a subordinate court and the accused person has been
committed for trial before the High Court.111
6.16.1 Committal Proceeding
“Committal proceedings” means proceedings held by a subordinate court with a view
to commit the accused person to the High Court.
The law requires the Director of Public Prosecutions upon completion of investigation,
to study the investigation file and make findings whether the evidence available is
sufficient to warrant institution of a criminal case or not. In case he finds out that
the evidence warrants putting the suspect on trial, he shall file an information before
the High Court. In case he finds that the evidence available is insufficient to warrant
institution of a criminal case he may either remit the file back for further instigation or
enter a nolle prosequi.112 Information filed under Section 245 of the CPA shall include
three copies of the statement of witnesses and any document containing the substance
of the evidence.
After the information is filed in the High Court, the Registrar shall cause a copy of it to
be delivered to the Subordinate Court where the accused person was first presented
or within the local limits of which the accused person resides. Upon receipt of that copy
and the notice, the subordinate court shall commit the accused person to the High
Court for trial pursuant to Section 246 of the CPA.113
In committal proceedings, the committing court is required to read or cause to be read to
the accused person the information brought against him as well as the statements and
documents containing the substance of evidence that the Director Public Prosecutions
intends to call at the trial.114
110
 dam Angelius Mpondi vs Republic, Criminal Appeal No. 180 of 2018, CAT DSM(unreported), Tagara
A
Makongoro and two another vs. Republic, Criminal Appeal No. 126 of 2015, CAT Mwanza (unreported),
Severine Kimatare vs Republic, Criminal Appeal No. 279 of 2006, CAT Bukoba(unreported), Loningo
Sangau vs Republic, Criminal Appeal No. 396 of 2013, CAT Arusha (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 Bukoba (Unreported), Marwa Mahende v
Republic (1998) TLR 249, Magoiga Magutu@Wansima vs Republic, Crimnal Appeal No. 65 of 2015
CAT Mwanza (unreported)
111
S
 ection 178 of the CPA
112
S
 ection 245 of the Criminal Procedure Act.
113
R
 epublic vs Ibrat makombe, Criminal Revision No. 6 of 2017 CAT Iringa (unreported), Republic vs
Christian Mhapa, Criminal Revision No. 7 of 2017 CAT Iringa (unreported)
114
D
 aud Jeremiah v R Criminal Appeal No. 359 of 2015 CAT (unreported), Jumanne Mohamed & 2
Others v R Criminal Appeal No. 534 of 2015 CAT (unreported), Hamis Meure Vs. Republic, [1993]

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It should also be disclosed to the accused person any physical exhibit intended to be
tendered against him during trial.115
Pursuant to Section 289 of the CPA, a witness whose statement or substance of
evidence was not read at committal proceedings shall not be called by the prosecution
at the trial unless the prosecution has given a reasonable notice in writing to the
accused person or his advocate of the intention to call such witness.116 The same
applies to exhibits which were not disclosed to him during committal.117
6.16.2 Requirement to involve assessors
In trials before the High Court, vide the Written Laws (Miscellaneous Amendments)
Act, 2022 Act No. 1 of 2022, it is no longer mandatory for trials before the High Court
to be conducted with the aid of assessors.118
6.16.3 Selection of Assessors
The High Court may where it considers necessary for the interest of justice, sit with
not less than two assessors provided that in deciding the matter the Judge shall not
be bound by the opinion of the assessors, pursuant to Section 265(1) of the CPA.
Assessors form part of the bench, and will be given opportunity to ask questions
for clarification after re-examination of witnesses as per Section 177 of the TEA.119
Pursuant to Section 266(1) of the CPA, all persons between the ages of twenty-one
and sixty years may be selected to serve as an assessor. Before hearing proceeds,
in case the Court opts to use assessors in the trial, it is required to ask the accused
whether he objects any assessor to participate in the trial, and the accused may give
any reason to that effect.
Thus, in order to ensure a fair trial and to make the accused person have confidence
that he is having a fair trial, it is of vital importance that he is informed of the existence
of this right. The duty to so inform him is on the trial judge, but if the judge overlooks
this, counsels who are the officers of the court have a duty to remind the Judge of it.120
TLR 213, Samwel Henry Juma VS Republic, Criminal Appeal No. 211 of 2011 CAT DSM (Unreported),
Simon Shauri Awaki@DAWI vs.Republic Criminal Appeal 62 of 2020 (unreported), Hamisi Meure V R
[1993] TLR 213, Paschal Maganga & another vs R Criminal Appeal No.268 of 2016 CAT (unreported)
115
G
 race Teta Gbatu vs Republic, Criminal Appeal No.84 of 2019 CAT (unreported), Said Shabani Malikita
vs Republic, Criminal Appeal No.523 of 2020 CAT (unreported), Remina Omary Abdul v. Republic,
Criminal Appeal No. 189 of 2020 (unreported),
116
Masamba Musiba@Musiba Masai Masamba vs R, criminal Appeal No. 138 of 2019 CAT DSM

(unreported)
117
G
 race Teta Gbatu (supra)
118
M
 sigwa Matonya and 4 others v Republic, Criminal Appeal No. 492 of 2020 CAT DSM (unreported)
119
H
 ilda Innocent vs Republic, Criminal Appeal No.181 of 2017 CAT Bukoba (unreported), Apolinary
Matheo&2 Others vs Republic, Criminal Appeal No. 436 of 2016 CAT Mbeya (unreported)
120
Andrea Bernardo &Another vs Republic, Criminal Appeal NO.128 of 2015, CAT Mwanza (unreported),
Chacha Matiko Magige vs Republic, Criminal Appeal No.562 of 2015 CAT Mwanza (unreported),
Yohana Mussa Makubi&Another vs Republic, Criminal Appeal No.556 of 2015 CAT (unreported),
Chacha Matiko Magige vs Republic, Criminal Appeal No. 562 of 2015 CAT (unreported), Tongeni
Naata v R (1991) TLR 59, Fadhil Yussuf Hamid vs Director of Public Prosecutions, Criminal Appeal
No.129 of 2016 CAT Zanzibar (Unreported), Apolinary Matheo &2 Others vs Republic, Criminal Appeal
No.436 of 2017 CAT Mbeya (unreported), Laurent Salu and Five Others V Republic, Criminal Appeal
No.176 of 1993 (Unreported).

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6.16.4 Explaining roles to assessors

Assessors being lay persons need to have explained about the role they are supposed
to play in the trial.121
6.17 Court proceedings
6.17.1 Compliance of Section 210 of the CPA
Recording of the witness evidence has a specific prescribed manner. Failure to do so
is an irregularity that goes to the root of the case under Section 210 (1) of the CPA.
The provision strictly requires the recording to be in a narrative form or first person and
not in the reported speech.122
6.17.2 Compliance of Section 210(3) of CPA
The magistrate shall inform each witness that he is entitled to have his evidence read
over to him and if a witness asks that his evidence be read over to him, the magistrate
shall record any comments which the witness may make concerning his evidence.
To ensure that every testimony is properly recorded and that it guarantees against
distortion, perversion and suppression of evidence.123
6.17.3 Authentication of proceedings
It is trite law that failure by the Judge/magistrate to append his/her signature after taking
down the evidence of every witness including defence is an incurable irregularity in
the proper administration of criminal justice. The rationale for the rule is fairly apparent
as it is geared to ensure that the trial proceedings are authentic and not tainted. This
emulates the spirit contained in Section 210 (1) (a) of the CPA. However, applying this
rule every case should be dealt with in its own circumstances.124
6.17.4 Use of Abbreviations in proceedings
It is a good practice to record proceedings in full sentences instead of abbreviations
although using them does not vitiate the trial.125
6.18 Closure of prosecution’s case
The law under Section 229 (1) of CPA indicates that the prosecutor shall open the
case against the accused and call witnesses to prove the charge. There is no specific
provision stating that the prosecutor shall close the prosecution case against the
121
H  ilda Innocent vs. R Criminal Appeal No. 181 of 2017 CAT Bukoba (unreported)
122
F  redy Sichembe vs Republic, Criminal Appeal No. 148 of 2018, CAT (unreported).
123
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 Republic, Criminal Appeal No.238
of 2017 CAT (unreported), Amani Bwire Kilunga vs Republic, Criminal Appeal No.372 of 2019 CAT
(unreported).
124
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 Arusha(unreported), Robert Majendo
vs Republic, Criminal Appeal No. 428 of 2017, CAT (unreported)
125
Amani Bwire Kilunga vs Republic, Criminal Appeal No. 372 of 2019, CAT (unreported), Peter Sagadege
Kashuma vs Republic, Criminal Appeal No. 219 of 2019, CAT (unreported), Onesmo Alex Ngimba vs
Republic, Criminal Appeal No. 157 of 2019, CAT (unreported)

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accused. However, it is now a well-established principle of law under provisions of

Section 229 and 230 of CPA indicating that the prosecutor who opens the case against
the accused is obliged to close the case for the prosecution upon being satisfied that
the witnesses called to give evidence in support of the charge have duly discharged
that duty. The number of witnesses and substance of their evidence is determined by
the prosecutor who calls such witnesses126
The prosecution has control over all aspects of Criminal prosecutions and proceedings.
It is not therefore either for the court or the defence to determine when the prosecution
should close its case, or in respect of the court to make an order for such closure.
The position is now settled that a magistrate or judge has no power, under our laws,
to close the prosecution case.127 The closure of the prosecution case by the trial
magistrate or a judge, is not only a breach of natural justice but also an abrogation of
the constitutional guarantee of the basic right to be heard as enshrined under Article
13(6) (a) of the Constitution.128
6.19 Accused to be informed of his rights under Section 231 of the CPA
Section 231 (1) and (2) and 293(2) of the CPA requires a trial Judge or Magistrate at
the end of the prosecution’s case to address the accused on his right to give evidence
on oath or not and to call witnesses if any.129 Failure by a trial court to comply with
this mandatory provision is a fatal irregularity and vitiates subsequent proceedings130
However, in certain circumstances the omission can be cured by overriding objective
if the accused was not prejudiced131
6.20 Prima facie Case
It may not be easy to define what is meant by prima facie, but at least it must mean one
on which a reasonable tribunal, properly directing its mind to the law and the evidence
could convict if no explanation is offered by the defence. The issue of credibility and
weight are matters that ought to be determined at the end of the trial but not at the
stage of determining whether an accused has a case to answer.132

126
 bdallah Kondo vs Republic, Criminal Appeal No. 322 of 2015, CAT (unreported
A
127
M atimo Sagala and another vs Republic, Criminal Appeal No. 7 of 2015, CAT (unreported),
128
Abdallah Kondo vs Republic, Criminal Appeal No. 322 of 2015, CAT (unreported), Anosisye Tubuke
Mwamkinga vs Republic, Criminal Appeal No. 331 of 2016, CAT Mbeya (unreported), Abdallah Kondo
vs Republic Criminal Appeal no 322 of 2015 unreported. The Director of Public Prosecutions vs Joseph
s/o Mseti @ Super Dingi and three others criminal appeals no. 549 of 2019 (unreported
129
C harles Yona vs Republic, Criminal Appeal No. 79 of 2019, CAT (unreported
130
U lilo Hassan v. Republic, Criminal Appeal No.196 of 2018 (unreported)
131
Salum Said Matangwa <G> Pangadufu Vs Republic, Criminal Appeal No. 292 Of 2018 CAT (Unreported)
132
The Director of Public Prosecutions vs Philipo Joseph Ntonda, CAT Zanzibar, (unreported)

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 Criminal Prosecutions Case Manual

PART VII
EXHIBITS AND THEIR ADMISIBILITY

7.0 Meaning of exhibits

An exhibit refers to a document, record or any other tangible object formally admitted
in court as evidence.133 Or an exhibit can be anything which is connected to the case
and which can be introduced before the court as evidence. The intended prosecution
exhibits must be gathered in the course of investigation.
7.1 Types of exhibits
There are two major categories of exhibits; real exhibits and documentary exhibits.
1) Real exhibit is a thing whose characteristics are relevant and material. It is a thing
that is directly involved in some event in the case.134 These are tangible objects
which may connect a person with an offence or incident, such as articles bearing
fingerprints, footprints particles of dust, blood-stained clothing, hairs and fibres
Instruments which used or facilitated in committing an offence, such as car, guns,
knives, arrows etc.
2) 
Documentary exhibit are exhibits which are in a written form.135 They must
be relevant and directly involved in some events of the case. Some of these
documentary exhibits gathered in course of investigation include (Government
Analyst report, Fingerprint expert report, handwriting expert report, Medical
Reports etc), Bank statement, cybercrime expert report, caution and extra judicial
statement etc.
7.2 Chain of custody
Chain of custody is the chronological documentation and/or paper trail, showing the
seizure, custody, control, transfer, analysis and disposition of evidence, be it physical
or electronic. The idea behind recording the chain of custody, is to establish that
the alleged evidence is in fact related to the alleged crime rather than for instance,
having been planted fraudulently to make someone appeal guilty. The chain of custody
requires that from the moment the evidence is collected its every transfer from one
person to another must be documented and that it be provable that nobody else could
have accessed it.136 The position is reflected in Section 38 of CPA, Section 35 of the
Police Force and Auxiliary Services Act, and Police General Orders (PGO) No. 229;-

133
 he Judiciary of Tanzania, Exhibit Management Guidelines, September 2020.pg 3
T
134
The Director of Public Prosecutions Vs Sharrif s/o Mohamed@ Athuman and Six Others Criminal
Appeal No. 74 of 2016, CAT at Arusha (unreported)
135
The Judiciary of Tanzania, Exhibit Management Guidelines, September 2020.pg 3
136
P
 aulo Maduka & 4 Others v. Republic, Criminal Appeal No. 110 of 2007, CAT (unreported), Albert
Mendes vs Republic, Criminal Appeal No. 473 of 2017 CAT (unreported), Azimio Machibya Matonge
vs Republic, Criminal Appeal No.35 of 2016 CAT (unreported), Kaenge Christopher vs Republic,
Criminal Appeal No.187 of 2016 CAT (unreported).

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The law requires that all procedures in respect of the chain of custody be
adhered to as it is the cardinal principle that courts of law have enormous duty
to scrutinize and re-evaluate the evidence, this duty includes ensuring the
authenticity of the tendered evidence. This duty is exceeded by the principle of
chain of custody whereas the court has to assess how the exhibit found its way
to the courtroom from the time it was seized to its tendering in Court.
7.3 Relaxation of the principles of chain of custody
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, regardless of its nature
where the potential evidence is not in the danger of being destroyed or polluted, and/
or in any way tampered with. Where the circumstances may reasonably show the
absence of such dangers, the court can safely receive such evidence despite the fact
that the chain of custody may have been broken. This will depend on the prevailing
circumstance.137 Where there is a confession by the accused person chain of custody
becomes less significant.138
7.4 Objection as to chain of custody
Chain of custody in whatever circumstance can conveniently be established upon
closure of prosecution’s case and not otherwise. Under such circumstance, it cannot
be a base of objection during admissibility of an exhibit.139
7.5 Disposal of exhibits
During investigation, police officers may get involved in making applications for orders
of disposal before commencement of the trial depending on the nature of the exhibits.
Section 353(2) of the CPA allows such applications for disposal of exhibits that are
subject to speedy and natural decay. The order of disposal from the magistrate must
be obtained and the inventory be filled. The law requires that the order of disposal
must be issued in the presence of the accused person.
It is further provided under Section 353(1) of the CPA, that where anything which has
been tendered or put in evidence in any criminal proceedings before any court has not
been claimed by any person who appears to the court to be entitled thereto, within a
period of twelve months after the final disposal of the proceedings or if any appeal is
entered in respect thereof, the thing may be sold, destroyed or otherwise disposed of
in such manner as the court may by order direct and the proceeds of its sale be paid
into the general revenues of the Republic.
Normally, the exhibits may be disposed of and an inventory be tendered in court the
137
Issa Hassan Uki v Republic, Criminal Appeal No.129 of 2017 CAT (unreported), Kadiria Said Kimaro
vs Republic, Criminal Appeal No. 301 of 2017, CAT (unreported), Anania Clavery Betela vs Republic,
Criminal Appeal No.355 of 2017 CAT (unreported).
138
K ileo Bakari Kileo and Four Others vs Republic, Consolidated Criminal Appeal No. 82 0f 2013 and
330 of 2015, CAT(unreported) & Slahi Jumanne Maulid vs Republic, Criminal Appeal No.292 of 2016
CAT (unreported).
139
The Director of Public of Prosecutions vs Christina Biskasevskaja, Criminal Appeal No. 76 of 2016,
CAT (unreported), Charles Abel Gasirabo@Charles Gazilabo and 3 others vs Republic, Criminal
Appeal No.358 of 2019 CAT (unreported)

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 Criminal Prosecutions Case Manual

case of perishable items but the same must have been ordered by the magistrate
to be disposed of before the hearing of the case after being taken before him in the
presence of the accused person. That is in accordance with paragraph 25 of the PGO
No. 229
7.6 Admissibility of exhibits
Admissibility of exhibit is a point of law. The basic prerequisites of admissibility of
evidence in a court of law are relevance, materiality, and competence. The general
rule is that, unless it is barred by any rule or statute any evidence which is relevant,
material and competent is admissible. On the contrary, any evidence which is irrelevant
is inadmissible140
7.7 Who can tender exhibits?
Exhibits cannot speak for themselves. They have to be produced before the court by
a competent witness who is able to give relevant, material and competent evidence.141
However a prosecutor cannot assume the role of a prosecutor and a witness at the
same time. It is only a witness who can tender an exhibit because he is capable of an
examination upon oath or affirmation in terms of Section 198(1) of the CPA142
An exhibit therefore, can be tendered in court by any of the following persons: -
(a) Author or recipient or custodian),
(b) Owner,
(c) Addressee
(d) Seizing officer or arresting or investigation officer
(e) Any other persons who possessed or took part in possession of the exhibit
albeit temporarily.
(f) An officer from a corporate entity to which an exhibit relates.
(g) Any person with information or knowledge of the exhibit.
7.8 Procedures for tendering exhibits
7.8.1 Laying Foundation
140
 he Director of Public Prosecutions vs Sharrif s/o Mohamed@ Athuman and Six Others Criminal
T
Appeal No. 74 of 2016, CAT (unreported)
141
M irzai Pirbakhshi @ Hadji and 3 Others vs Republic Criminal Appeal No. 493 of 2016, CAT (unreported),
The Director of Public of Prosecutions vs Christina Biskasevskaja, Criminal Appeal No. 76 of 2016,
CAT (unreported), The Director of Public Prosecutions vs Shariff Mohamed @Athuman and six other,
Criminal Appeal No. 74 of 2016, CAT Arusha(unreported), Jaffray Saidi Mwalimu vs Republic, Criminal
Appeal No. 497 of 2019, CAT (unreported)
142
Said Salum vs Republic, Criminal Appeal No. 499 of 2016, CAT DSM (unreported), Athuman Almas
Rajabu vs Republic, Criminal Appeal No. 416 of 2019, CAT DSM (unreported), Msengi Selemani @
MC vs Republic, Criminal Appeal No.504 of 2019 CAT Dodoma (unreported), Shabani Rulabisa vs
Republic, Criminal Appeal No. 88 of 2018 CAT Shinyanga (unreported), DPP vs Mienda Said Miaratu
(1978) LRT 64

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On admissibility of exhibits in courts of law, the law is well established that a witness
seeking to tender any evidence must first lay a foundation by identifying it.143 The
witness should make a description of special mark on an item before it is shown to
him and allowed to be tendered as an exhibit. Identification of the item should be
established to the court beyond reasonable doubt.144
7.8.2 Right to comment on admissibility of an exhibit
Before admission of an exhibit, the accused person should be availed with right to
comment on admissibility. The denial of the right to comment denies a right of fair
hearing, occasions failure of justice and renders the exhibit to be discounted.145
7.8.3 Status of Exhibit admitted for Identification (ID)
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 and has no
evidential value.146
7.8.4 Documents to be read after admission
A document should be actually admitted before it can be read out. Failure to read
out documentary exhibits after its admission is fatal as it denies the accused
person an opportunity to know or understand its contents. Each party to a trial must
have opportunity to have knowledge of and comment on all evidence adduced or
observations filed or made to influence the court’s decision.147 However, the exception
to this long-established rule depends on the circumstance of each case.148
7.8.5 Admissibility of Electronic Evidence
Section 64A of TEA and Section 18 of Electronic Transactions Act, 2015 provides for
criteria for admissibility of electronic evidence. For computer-generated information
or another similar device to be admitted in evidence, the following conditions must be
complied with.149
1. The reliability of how the data message/information was generated stored and
communicated.
143
 hristian Ugbechi Vs Republic, Criminal Appeal No. 274 of 2019, CAT (unreported) m, Robinson
C
Mwanjisi & 3 others vs Republic (2003) TLR 218
144
H uang Qin and Another Vs Republic, Criminal Appeal No. 173 of 2018, CAT(unreported)
145
J oseph Maganga Mlezi and another Vs Republic, Criminal Appeal No. 536 & 537, CAT Tabora
(unreported).
146
Alex Mwalupulage @ Mamba vs Republic, Criminal Appeal No. 25 of 2020, CAT Iringa(unreported)
147
 Chrizant John vs Republic, Criminal Appeal No. 313 of 2015, CAT Bukoba (unreported) Ernest
Jackson @ Mwandikaupesi and Hamza Said Remadhani vs Republic, Criminal Appeal No. 408 of
2019,CAT DSM (Unreported
148
S haban Hussein @ Makoba and another vs Republic, Criminal Appeal No. 287 of 2019, CAT Bukoba
(unreported), Sebastian Michael and another vs Republic, Criminal Appeal No. 145 of 2018, CAT
Mbeya (unreported), Hassan Said Twalib vs Republic, Criminal Appeal No. 95 of 2019, CAT Mtwara
(unreported),),
149
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).

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2. The reliability of how the integrity of the data message was maintained, i.e., the
innocence of the computer system or similar device where the said information
was generated, stored, and preserved.
3. The manner in which the original was identified.
7.8.6 Proof of authenticity of electronic documents
The testimony of a witness on how electronic data message was generated, stored,
communicated and maintained is of utmost importance. The witness must show how
the original was identified prior to tendering. There is no requirement of law under
Section 18 of ETA that before an electronic record is admitted, an affidavit testifying
as to its authenticity must be filed.150 The prosecutor has a duty to lead the witness to
prove authenticity of electronic document set out under 18(3) of ETA.151
7.8.7 Admissibility of Banker’s Book
Sections 78A and 79 of TEA provide prerequisite conditions admissibility of an
electronic banker’s book. These conditions are;--
1. The witness has to show while testifying that the Entry and Retrieval was made
in the usual ordinary course of business.
2. Custody. The witness must show that the banker’s book is in the bank’s control,
and by their position, they are the custodian of the system, etc.
3. The witness has to show how the retrieval of the document was done, showing
the accuracy of the printout
4. 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.152
7.9 Confession
A confession is an unequivocal admission by an accused person of having committed
an act that in law amounts to a crime. It is also an admission to facts which substantially
constitute the offence. Under Section, 3(1) (a) (b) (c) and (d), of TEA a confession to
a crime may be oral, written, by conduct, and/or a combination of all of these or some
of these. In short, a confession need not be in writing and can be made to anybody
provided it is voluntarily made.153 Written confession includes extra judicial statement
and Caution statement.

150
F
 reeman Aikael Mbowe and 7others vs. Republic, Criminal Appeal No. 76 of 2020 (Unreported)
151
S
 tanley Murith Mwaura vs Republic, Criminal Appeal No.144 of 2019 CAT (unreported).
152
E
 xim Bank (T) Ltd vs Kilimanjaro Coffee Company Limited;- Commercial Case No. 29 of 2011 (High
Court Commercial Division), Nyangarika, J at pages 9 -12.
153
P
 atrick Sanga vs Republic, Criminal Appeal No.213 of 2008 CAT (unreported), Ally Mohammed Mkupa
vs Republic, Criminal Appeal No.2 of 2008 CAT Mtwara (unreported), Umalo Mussa vs Republic,
Criminal Appeal No.150 of 2005 CAT (unreported).

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7.9.8 Ways to determine truthfulness of the confession

There are several ways in which a court can determine whether or not what is
contained in a statement is true. First, if the confession leads to the discovery of some
other incriminating evidence. Second if the confession contains a detailed, elaborate
relevant and thorough account of the crime in question, that no other person would
have known such details but the maker. Third, since it is part of the prosecution case,
it must be coherent and consistent with the testimony of other prosecution witnesses,
and evidence generally - especially with regard to the central story (and not in every
detail) and the chronology of events. Lastly, the facts narrated in the confession must
be plausible.154
7.9.9 Extra-judicial statement
Extra judicial statement is a statement freely and voluntarily made by a person
accused of an offence in the immediate presence of a magistrate as defined in the
Magistrates’ Courts Act, or a Justice of the Peace. The procedures of recording extra
judicial statement are provided by “A Guide for Justice of the Peace’ which requires
the Justice of the Peace to observe, among other things, the followings;-
(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
(e) Whether he wishes to make the statement of his own free will.
(f) If he makes a statement, the same may be used as evidence against him.
No law prescribes the time limit within which an accused person may be taken before
a Justice of the Peace to record his extrajudicial statement.155
7.9.10 Cautioned statement
When a police officer is interviewing a person in order to ascertain whether he has
committed an offence, he has to record or cause such interview to be recorded. This
requirement is mandatory unless it is in all circumstances impracticable to do so. When
the person interviewed makes a confession either orally or in writing relating to an
154
M ichael Mgowole and Another vs Republic, Criminal Appeal No 205 of 2017, CAT (Unreported).
155
Mpemba Mashenene vs Republic, Criminal Appeal No.557 of 2015 CAT (unreported), Joseph Stephen
Kimaro & Robert Raphael Kimaro vs Republic, Criminal Appeal No. 340 Of 2015, CAT (unreported),
Japhet Thadei Msigwa vs Republic, Criminal Appeal No. 367 of 2008 (unreported), Andius George
Songoloka and two (2) others vs Republic, Criminal Appeal No. 373. of 2017, CAT (Unreported),
Geofrey Sichizya vs D.P.P, Criminal Appeal No. 167 of 2017 CAT (unreported), Vicent Ilomo vs
Republic, Criminal Appeal No 337 of 2017 CAT (unreported), Sylvester Fulgence and Vedastus
Sylvester vs Republic, Criminal Appeal No. 507 Of 2016 CAT (unreported), Khalid Mohamed Kiwanga
and another vs Republic, Criminal Appeal No. 223 of 2019, CAT (Unreported), Maige Nkuba vs
Republic, Criminal Appeal No. 551 of 2016, CAT (Unreported)

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offence, the police officer shall either immediately during the interview or immediately
after the interview is completed make a record in writing.
The manner of recording such cautioned statements is regulated by Sections 57&
58 of the CPA. The circumstances in which the two kinds of cautioned statements
are taken are different. The one taken under Section 57 may be as a result either of
answers to questions asked by the police officer or partly as answers to questions
asked and partly volunteered statements. The statement under Section 58 is a result
of wholly volunteered and unsolicited statement by the suspect.156.
Section 50 (1) (a) of the CPA requires cautioned statements of suspects to be recorded
within four (4) hours after the suspect is under restraint. Non-compliance of Sections
50 and 51 of the CPA renders the cautioned statement inadmissible. Such period may
be extended as per Section 51(a) (b) of the CPA.
However, there are exceptions to the four hours rule in respect of recording cautioned
statements which are stipulated under Section 50(1)(b) and (2) of the CPA.157 Lack of
certification in the cautioned statement is a procedural matter which does not affect
the weight attached to the substance in the cautioned statement.158 Cautioning the
accused with an offence without citing the relevant law contravened is not fatal. The
law governing interviewing of persons under restraint is Sections 52, 53, 56, 57, and
58 of the CPA. Section 57 and 58 of the CPA do not require mentioning the provision
of law contravened.159
7.9.11 Weight of Repudiated statements or Retracted statement
The basic difference between retracted and repudiated confessions is that, a retracted
statement occurs when the accused person admits that he made the statement
recorded but now seeks to recant on the ground that he had been forced or induced
to make the statement. On the other hand, a repudiated statement is one which the
accused person avers that he never made it.160
The court can enter a conviction based on a repudiated or retracted statement even
if it is not corroborated so long as it is satisfied that such confession is nothing but the
truth. In exceptional circumstances, the law is that where an accused person retracts
156
R  amadhan Salum v.Republic, Criminal Appeal No. 5 of 2004 (unreported),
157
Mpemba Mashenene vs Republic, Criminal Appeal No.557 of 2015 CAT (unreported), Joseph Stephen
Kimaro & Robert Raphael Kimaro vs Republic, Criminal Appeal No. 340 Of 2015, CAT (unreported),
Japhet Thadei Msigwa vs Republic, Criminal Appeal No. 367 of 2008 (unreported), Andius George
Songoloka and two (2) others vs Republic, Criminal Appeal No. 373. of 2017, CAT (Unreported),
Geofrey Sichizya vs D.P.P, Criminal Appeal No. 167 of 2017 CAT (unreported), Vicent Ilomo vs
Republic, Criminal Appeal No 337 of 2017 CAT (unreported), Sylvester Fulgence and Vedastus
Sylvester vs Republic, Criminal Appeal No. 507 Of 2016 CAT Tabora (unreported), Khalid Mohamed
Kiwanga and another vs Republic, Criminal Appeal No. 223 of 2019, CAT (Unreported), Maige Nkuba
vs Republic, Criminal Appeal No. 551 of 2016, CAT (Unreported)
158
Chacha Jeremia Murimi and 3 others vs Republic, Criminal Appeal No. 551 of 2015, CAT (Unreported),
DPP vs James Msumule Jembe &4 others, Criminal Appeal No.397 of 2018 CAT (unreported),
Mohamed Hamis @Sakisi vs Republic, Criminal Appeal No.97 of 2008 CAT (unreported).
159
Andius George Songoloka and two (2) others vs Republic, Criminal Appeal No. 373. of 2017, CAT
(Unreported), Issa James vs Republic, Criminal Appeal No. 110 of 2020 CAT Musoma (unreported).
160
Tuwamoi V, Uganda [1967] E.A 84

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his confession, the court can convict him on the uncorroborated confession provided
that it warns itself of the dangers of acting solely on such confession and if it is fully
satisfied that the confession cannot be but true.161
7.9.12 Trial within trial vis-à-vis Inquiry
It is a trite law that there is no single point in time the courts conduct trial within trial
or inquiry except when the voluntariness of the accused’s confession is examined.162
Once an objection has been raised on voluntariness of the cautioned statement, the
trial magistrate or Judge is enjoined to conduct trial within trial or inquiry to establish
the voluntariness of the cautioned statements. It is elementary principle that the
common practice is that during the trial within a trial or inquiry, the statements at that
stage are marked only for identification purpose.163 Trial within Trial is applicable in the
High Court, while an inquiry is for subordinate courts. If the accused person intends
to object to the admissibility of a statement/confession, he must do so before it is
admitted and not during cross-examination or defence.164
Procedure (modus operandi) to be followed by a subordinate court in determining the
voluntariness of such statement should be the same as in High Court.165
The procedure entails the followings: -
(a) 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.
(b) 
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 witness must be sworn or
affirmed as mandated by Section 198 of the CPA.
(c) Whenever a prosecution witness finishes his evidence the accused or his
advocate should be given opportunity to ask questions.
(d) Then the prosecution to re-examine its witness.
(e) When all witnesses had testified, the prosecution shall close its case.

161
 eofrey Kitundu @ Nalogwa and another vs Republic, Criminal Appeal No. 96 of 2018, CAT
G
(Unreported), Dickson Elia Shapwata and another vs Republic, Criminal Appeal No.92 of 2007 CAT
(unreported), Hamisi Juma Chaupepo @Chau vs Republic, Criminal Appeal No. 95 of 2008 CAT
(unreported), Kulwa Athumani @ Mpunguti, and three others vs Republic, Criminal Appeal No. 29 of
2005- CAT (unreported), Flano Alphonce Masalu @Singu and fours (4) others vs Republic, Criminal
Appeal No. 366 of 2018, CAT (unreported), Michael Mgowole and Shadrack Mgowole vs Republic,
Criminal Appeal No. 205 of 2017, CAT (Unreported).
162
S aganda Saganda Kasazu vs Republic, Criminal Appeal No.53 of 2019 CAT (unreported).
163
Ausi Mamu and two others vs Republic, Criminal Appeal No. 232 of 2004, CAT, (Unreported)
164
Nyerere Nyague vs Republic, Criminal Appeal No.67 of 2010 CAT Arusha (unreported), Hatibu Ghandi
& Others v. Republic [1996] TLR 12
165
S
 hihobe Seni and Another v. Republic (1992) TLR 330, Andius George Songoloka and two (2) others
vs Republic, Criminal Appeal No. 373. of 2017, CAT (Unreported), Emanuel Asajile and Davida
Mayaula vs Republic, Criminal No.507 of 2017, CAT (unreported)

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(f) Then the court is to call upon the accused to give his evidence and call
witness, if any. They should be sworn or affirmed as in the prosecution
side.
(g) Whenever a witness finishes the prosecution to be given opportunity to
ask questions.
(h) The accused or his advocate to be given opportunity to re-examine his
witnesses
(i) After all witnesses have testified, the accused or his advocate should close
his case.
(j) Then a ruling to follow
(k) 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 be read in court.
If the court finds out that the statement was not made voluntarily, it should reject it.166
7.9.13 Dying Declaration
A dying declaration is a statement made by a dying person as to the facts and
circumstances which is likely to cause his death. Such statement is admissible in
evidence in any proceedings in which the cause of death of the person making the
statement comes into question and is admissible whether the person was or was not
at the time the statement was made, in expectation of death.167 The Court has defined
it as a statement made by a deceased person as to the cause of his death.168 It can
either be written or oral.169
7.9.14 Weight of Dying Declaration
It is now settled law that where a dying declaration is admitted in evidence, it should
be scrupulously scrutinised, and to be acted on, corroboration is highly desirable.170
But where circumstances exist showing that deceased could not have been mistaken
in identification of the accused, a conviction can result even though such was the only
evidence against an accused person.171
166
 hamuhiro Kirenge@Chamuhiro Julias vs Republic, Criminal Appeal No. 597 of 2017, CAT
C
(unreported), Patrick Sanga vs Republic, Criminal Appeal No. 213. of 2008, CAT (Unreported)
167
P  olice General Orders no 228 para 1.
168
O  nael Dausonmacha Vs. Republic Criminal Appealno. 214 Of 2007, Cat (Unreported)
169
C  rospery Ntagalinda @ Koro vs Republic, Criminal Appeal No. 312 of. 2015, CAT (unreported).
170
Onael Dauson Macha Vs Republic, Criminal Appeal No. 214 Of 2007, CAT (Unreported), Emmanuel
Mrefu @ Bilinje vs Republic, Criminal Appeal No. 271 OF 2007, CAT (Unreported), Ghati Mwita vs
Republic, Criminal Appeal No. 240 OF 2011, CAT (Unreported), Crospery Ntagalinda @ Koro vs
Republic, Criminal Appeal No. 312 of. 2015, CAT (unreported).
171
R v. Marwa (1971) HCD 473 Uttam Vs The State of Maharashtra, Criminal Appeal No. 485 of 2012,
Supreme Court of India.

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7.9.15 Admissibility of expert evidence

Expert evidence is evidence about a scientific, technical, professional, or other
specialized issue given by a person qualified to testify because of familiarity with
the subject or special training in the field.172 The position of the law is that expert
evidence is admissible in cases where specialized knowledge is required. It is also a
position that for an expert to be believed by the court, he must furnish it with necessary
scientific criteria for testing the accuracy of his conclusion to enable the Court to form its
independent judgment by applying these criteria to the facts proved in the evidence.173
The court laid down three requirements for expert witnesses to be credible.174 These
are;-
(1) That the expert must be within a recognised field of expertise
(2) That the evidence must be based on reliable principles, and
(3) That the expert must be qualified in the discipline.
7.9.16 Handwriting
Evidence of the identity of a handwriting expert receives treatment under Sections 47,
49 and 75 of TEA. Generally, handwriting or signatures may be proved on admission
by the writer or by the evidence of a witness or witnesses in whose presence the
document was written or signed. This is conveniently called direct evidence which
offers the best means of proof. With such evidence, the prosecution needs not to
waste its resources on the other methods. More often than not, such direct evidence
has not always been readily available. To fill in the lacuna, the Evidence Act provides
three additional types of evidence or modes of proof. These are opinions of handwriting
experts and evidence of persons who are familiar with the writing of a person who is
said to have written a particular document. The third mode of proof under Section 75
of TEA is comparison by the court with a writing made in the presence of the court or
admitted or proved to be the writing or signature of the accused person.
7.9.17 Ballistic expert
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.175 Evidence of ballistic expert is guided by Section 205A of the CPA.
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.176

172
B
 ryan A, Garner, Black Law Dictionary 8 Ed.
173
 izo Makazi vs Republic, Criminal Appeal No. 532 of 2017 CAT (unreported), D.P.P vs Bashiru Rashid
T
Omar vs DPP, Criminal Appeal No.309 of 2017 CAT Zanzibar (unreported).
174
The DPP vs Shida Manyama @ Seleman Mabuba, Criminal Appeal No. 285 of 2012, CAT (Unreported),
175
B
 ryan A, Garner, Black Law Dictionary 8 Ed.
176
Ahmed Shilla Mkumbo vs Director of Public of Prosecutions, Criminal Appeal No. 235 of 2010, CAT
Zanzibar (unreported)

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7.9.18 Finger Prints comparison

Fingerprint comparison is the process of comparing two friction ridge impressions
to determine if they come from the same source. Finger print examiners compare
unknown fingerprints from crime scene or other items of evidence to know finger prints
and make a determination as to the source of the prints.
It is common ground that no two persons including twins have ever been found to
have the same fingerprints. It is also scientifically proven that fingerprints also vary
between one’s own fingers. Putting its uniqueness aside, fingerprints are good source
of evidence because for centuries forensic scientists have used fingerprints in criminal
investigations as a means of scientific identification. Fingerprint identification is one
of the most important criminal Investigation tools due to their persistence and their
uniqueness. A person’s fingerprints do not change over time. The friction ridges which
create fingerprints are formed while inside the womb and grow proportionally as the
baby grows.177 Evidence of fingerprint is governed by Section 47 of TEA and Sections
59 and 204 of CPA.
7.9.19 Human DNA
Deoxyribonucleic Acid or DNA is a molecule that encodes the genetic information in all
living organisms. DNA genotype can be obtained from any biological material such as
bone, blood, semen, saliva, hair, skin, etc. Now, for several years, DNA profile has also
shown a tremendous impact on forensic investigation. Generally, 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. 178
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. Scientists must explain in court what is Human DNA,
the process of Human DNA, and the characteristics of an individual band of Human
DNA.179
7.9.20 Medical Report by a Medical Practitioner
“Medical practitioner” means 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.180

177
M
 uganyizi Peter Michael & 3 others v Republic, Criminal Appeal No.144 of 2020 CAT (unreported).
178
 nil @ Anthony Arikswamy Joseph .. Appellant Vs State of Maharashtra, Criminal Appeal Nos.1419-
A
1420 Of 2012,Supreme Court of India
179
M
 boje 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)
180
The medical, dental and allied health professionals act, 2017

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It includes a clinical officer who is defined to mean a licensed practitioner of medicine

in East Africa and parts of Southern Africa, who is trained and authorized to perform
general or specialized medical duties such as diagnosis ‘and treatment of disease and
injury, ordering and interpreting medical tests performing routine medical practice.181
Medical report applicable in Subordinate and the High Court respectively is covered
by Sections 240 and 291 of the CPA. The provisions state that; - firstly, any document
purporting to be a report signed by a medical witness upon a purely medical or surgical
matter shall be receivable in evidence. Secondly questions as to the authenticity of
signature of the medical witness appended on the document as well as the witness’
qualification are matters of evidence as opposed to the matters of admissibility. Thirdly
once the medical document is received in evidence the medical witness may be called
by the court if it deems necessary or shall be so called if required by the accused or
his advocate for examination or cross examination.182
7.9.21 Trophy valuation certificate
Under Section 86 (4) of the WCA, a trophy valuation certificate can only be issued by
the Director or a wildlife officer from the rank of wildlife officer. Although the WCA does
not define who is a “game ranger” but “A game ranger, also known as a game warden
or conservation officer, is a member of law enforcement. This person is charged with
protecting wildlife in specified area to ensure that population levels of certain types of
wildlife are kept at biologically successful level.
A game warden, wildlife officer, wildlife ranger and a game ranger are same persons
whose main task is to protect the wildlife. Therefore, there is no difference between a
“wildlife officer” a “wildlife ranger”, a “game ranger” or a “wildlife ranger”. The terms are
just a matter of semantics to mean a wildlife officer, designated officer within Section
86 (4) of the WCA, to assess, value and issue the trophy valuation certificate.183

181
 harles Bode vs Republic, Criminal Appeal No. 46 of 2016, CAT (unreported) Filbert Gadson @Posco
C
vs Republic, Criminal Appeal No. 267 of 2019, CAT (unreported)
182
The Director of Public Prosecution Vs Emmanuel Erasto Kibwana, Criminal Appeal No. 576 of 2015,
CAT at (Unreported)
183
J amal Msombe and another vs Republic, Criminal Appeal No. 28 of 2020, CAT (Unreported)

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 Criminal Prosecutions Case Manual

PART VIII
DEFENCE

8.0 Introduction
After closure of the prosecution case at subordinate court pursuant to Section 231 of
the CPA, if it appears the case is made to the accused person sufficiently to require
him to make a defence either in relation to the offence charged or minor and cognate
offence is liable to be convicted, the court shall explain the substance of the charge
to the accused person and inform him of his rights. Then the Court shall call on the
accused person to enter his defence save where the accused person does not wish to
exercise any of those rights.
At the High Court the procedure is that, the accused person or his advocate may
open the case stating the fact or law on which he intends to rely upon, and make such
comments as he thinks necessary on the evidence for the prosecution pursuant to
Section 294 of the CPA. The accused person may then give evidence on his own behalf
and he or his advocate may examine his witnesses, if any, and after re-examination of
such witnesses he may close his case.
A magistrate or judge has no power, under our laws, to close the defence case.
The defence side is at liberty to close its case after being satisfied that the evidence
adduced is sufficient as was intended to be adduced.184
It is common knowledge that although the accused has no duty to prove his innocence,
he is expected to make the theme of his defence known so as to make the trial fair even
to the prosecution, and the theme may be deduced from the line of cross examinations
or notices “.185
8.1 Lies of an accused person in his defence
Lies of an accused person may corroborate the prosecution case although the same
cannot be the basis for convicting him. Such lies if material will be taken into account
in determining the guilt of the accused. People sometimes lie for a just cause or out of
shame or just to conceal a disgraceful behaviour. For a lie to be corroborative of the
prosecution case it must be material to the issue.186
8.1.1 Co-accused evidence
It is well established that where an accused person gives evidence, that evidence
may be taken into consideration against a co-accused, just like any other evidence.
184
 nosye Tubuke Mwankinga vs Republic, criminal appeal no. 331 of 2016, CAT (unreported), Abdallah
A
Kondo vs Republic, criminal appeal no 32 of 2015, CAT (unreported).
185
John Madata Vs Republic, criminal appeal no. 453 of 2017, CAT, (unreported), Mohamed Katindi Vs
Republic [1986] TLR 134, Hatibu Gandhi Vs Republic [1996] T.L.R 12
186
F
 elix Lucas Kisinyila vs Republic, Criminal appeal no. 129 of 2002 CAT (unreported), Nkanga Daudi
Nkanga vs Republic, Criminal appeal no. 316 of 2013, CAT (unreported), William Onyango Nganyi
@ Dadii 5 Others vs Republic, criminal appeal no. 9 of 2016 CAT (unreported), Paschal Mwita And 2
Others v R (1993) TLR 295, Amitabachan Machaga @ Gorong’ondo vs Republic, criminal appeal no.
271 of 2017, CAT (unreported).

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Evidence which is inconsistent with that of the co-accused may be just as injurious to his
case as evidence that expressly seeks to implicate him.187
8.1.2 Defence advancing prosecution case
If the accused person in the course of his defence gives evidence that advances the
prosecution case further, the court will be entitled to take into account such evidence in
deciding on the question of his guilt.188
8.2 Possible defences
There are several defences that can be raised by accused persons during trial. They
include: -
8.2.1 Defence of alibi
Alibi” is a Latin adverb, meaning” elsewhere’ or ‘at another place”. Thus, if an accused
person alleged that he was not present at a place at the time an offence was committed’
and that he was at another place so far distant from that at which it was committed, that
he could not have been guilty, he is said to have set up an alibi189
A genuine alibi is, of course, expected to be revealed to the police investigating the case
or to the prosecution before trial. Only when it is so done can the police or the prosecution
have the opportunity to verify the alibi. An alibi set up for the first time at the trial of the
accused is more likely to be an afterthought than genuine one190.The Legal framework for
alibi is enshrined under Section 194 of the CPA and Section 42 of the EOCA.
8.2.2 Proof of alibi
Generally, the accused person has to prove his alibi on balance of probabilities.191 If the
person charged with a serious offence alleges that at the time when it was committed, he
was in some other place where he is well known and yet he makes no effort to prove that
fact, which if true, could easily be proved, the court must necessarily attach little weight
to his allegation.192
Under Section 194(4) of the CPA, the law requires the notice to be furnished, no form of
the notice envisage by this provision has been prescribed, but the notice must furnish
sufficient particulars of the alibi so as to enable the prosecution to verify the truth of those
particulars and if necessary, assemble the evidence in rebuttal, and that the notice should
be given before the main hearing. In absence of notice the court has the discretion of
according no weight.193
187
G  ift Mariki 2 Other vs Republic, criminal appeal no. 289 of 2015, CAT (unreported), Mattaka and
Others V. R [1971] E. A 495
188
Hamis Chuma @ Hando Mhoja. vs Republic, criminal appeal no. 36 of 2018 CAT (unreported), Muhsin
Mfaume vs Republic, criminal appeal no. 99 of 2012, CAT (unreported).
189
M  safiri Benjamini Vs Republic, Criminal Appeal No 549 of 2020, CAT (unreported).
190
K  ubezya John Vs Republic, criminal appeal No. 488 of 2015, CAT (unreported).
191
K  ubezya John Vs Republic, Criminal Appeal No.488 of 2015 CAT (unreported).
192
Maramo Slaa Hofu And 3 Others vs Republic, criminal appeal No. 246 of 2011, CAT (unreported),
Kubezya John Vs Republic , Criminal Appeal No.488 of 2015 CAT (unreported).
193
Director Of Public Prosecutions Vs Nyangeta Somba And Twelve Others [1993] T.L.R 69, Kubezya
John Vs Republic, Criminal Appeal No.488 of 2015 CAT (unreported).

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8.2.3 Defence of Insanity

In terms of Section 12 of the Penal Code, every person is presumed to be of sound
mind and to have been of sound mind at any time which comes in question until the
contrary is proved. However, that rule is not without exceptions. Under Section 13 of
the Penal Code, a person shall not be criminally responsible for an act or omission if
at the time of doing the act or making the omission he is suffering from any disease
affecting his mind hence making him incapable of understanding what he is doing,
incapable of appreciating that he ought not to do the act or omission or does not have
control of the act or omission.
Insanity is raised so as to show that the accused lacked the culpable mental state
required as an element of the offence charged. It is relied on as defence from criminal
culpability. Various jurisdictions have adopted means or ways to conduct an incapacity
test which examines whether an accused person was able to appreciate what he was
doing when he committed an offence or that his illness left him unable to distinguish
right from wrong. With respect to his criminal conduct in our jurisdiction, the defence
of insanity is governed by Sections 216, 219 and 220 of the CPA.194 These provisions
apply in three different circumstances;- -
Firstly, on circumstances under Section 220(1) of the CPA the court has the discretion
to adjourn the proceedings and order the accused person to be examined in a mental
hospital. In exercising the discretion, it is necessary first to lay a ground upon which
the court could find that the accused person may have been insane at the time of
committing the offence.195
Secondly, on circumstances under Section 216 to 218 of the CPA it arises where it is
noted that an accused person cannot follow the proceedings at his trial. The concern
here is with the accused’s mental status at the time of trial not during the commission
of the offence. The accused’s ability to stand trial becomes the major concern of the
court, its invocation and its distinction with the procedure under Sections 219 and 220
of the CPA.196
Thirdly, on circumstances under Section 219 of the CPA, where insanity is pleaded
as a defence, the issue, would be as to the state of mind of the accused at the time of
the commission of the allege act.197
8.2.4 Defence of Intoxication
According to Section 14(2) (a) and (b) of the CPA, intoxication can be a defence
under the following circumstances;-198
(1) if by reason thereof, the person charged at the time of the act or omission
194
 homas Pius Vs Republic, Criminal Appeal No. 145 Of 2019, CAT (Unreported)
T
195
M
 ajuto Samson vs Republic, Criminal Appeal No. 61 of 2002 CAT (unreported)
196
Thomas Pius Vs Republic, Criminal Appeal No. 145 Of 2019, CAT (Unreported)
197
F
 rancis Siza Rwanda vs Republic, Criminal Appeal No. 17 of 2019 CAT (unreported).
198
Mwale Mwansanu vs Director of Public of Prosecution, criminal appeal No. 105 of 2018, CAT

(unreported

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complained of, did not understand what he was doing and the state of intoxication
was caused without his consent by the malicious or negligent act of another
person, or
(2) If the person charged, at the time of the act or omission complained of did
not understand what he was doing and was by reason of intoxication insane
temporarily or otherwise.
There is no other avenue for intoxication to be considered a defence, other than these.
8.2.5 Defence of person or property
Self-defence is availed under Section 18 of the Penal Code. For the accused to bring
himself within the ambit of the provision of the law, as opposed to mere denials and
lamentations, he is bound to lead evidence showing, albeit on a balance of probability
that, he acted in good faith, with an honest belief, based on reasonable ground that his
acts were necessary for the preservation of his own life or limb, in the circumstances.
It is raised where the unlawful act being or about to be committed by the deceased,
was of such a nature as could reasonably cause fear that will cause his own death, or
grievous harm to his body could be the result of that unlawful act which was being or
was about to be committed by the deceased.199
In exercising the right of self-defence or defence of another or in defence of property,
a person shall be entitled to use only such reasonable force as may be necessary
for that defence. A person shall be criminally liable for any offence, resulting from
excessive force used in self-defence or in defence of another or in defence of property.
Any person, who causes the death of another as a result of excessive force used in
defence, shall be guilty of manslaughter.200
8.2.6 Defence of Provocation to murder
Under Section 202 of the Penal Code, for an act or insult or conduct to constitute
provocation in law, at least the following conditions must be established;201
(1) 
the act or insult must be wrongful, lawful act or conduct cannot constitute
provocation,
(2) 
the person assaulted because of the provocation must be one who offered the
provocative act, insult or conduct,
(3) the provocative act, insult or conduct must have been directed to the person
committing the assault or a person who stands to him in the relationship,
(4)  he provocative act or insult must have been done or offered in the presence of
T
the person committing the insult,

199
 agumudu Hamisi Chupa @ Mbavu vs Republic, Criminal Appeal No. 287 of 2021, CAT (unreported).
M
200
S ection 18B(1)(2)(3) of the CPA.
201
Hamis Chuma @ Hando Mhoja vs Republic, criminal appeal no. 36 of 2018, CAT at (unreported),
Mashaka Mbezi vs Republic Criminal appeal no. 162 of 2017unreported, CAT (unreported).

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(5) 
The test is the ordinary person in society. This is to say, peculiar or eccentric
qualities of the person committing the assault are not relevant when considering
whether a person would be provoked by the act or insult and,
(6) The person provoked must have been deprived of the power of self-control.
In terms of Section 201 of the Penal Code, when the defence of provocation is
successfully established pursuant to Section 202 of the Act, the accused person shall
be convicted of manslaughter.

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PART IX
JUDGMENT AND SENTENCES

9.0 Composition of judgment

The manner on contents of the judgment is availed under Section 312 of the CPA. The
law requires the judgment to contain the point(s) for determination, the decision, and
the reasons for that decision and shall be dated and signed by the presiding officer as
of the date on which it was pronounced in open court.
A good judgment is clear, systematic, and straightforward. Every judgment should state
the facts of the case, establishing each fact by reference to the particular evidence
by which it is supported and it should give sufficiently and plainly the reasons which
justify the finding. It should state sufficient particulars to enable the appellate court to
know what were the facts and findings of the trial court. A judgment must convey some
indications that the judge or magistrate has applied his mind to the evidence on the
record. Though it may be reduced to a minimum, it must show that no material portion
of the evidence laid before the court has been ignored.202
For a judgment of any court of justice to be a reasoned one, it must contain an objective
evaluation of the entire evidence. This involves a proper consideration of the evidence
for the defence which is balanced against that of the prosecution, in order to find out
which case is more cogent. In short, such evaluation should be a conscious process
of analysing the entire evidence dispassionately in order to have an informed opinion
as to its quality before a formal conclusion is arrived at.203 However in case of omission
by the trial court, the appellate court can step into shoes of the trial court and address
the omission.204
9.3 Prohibition of extraneous matters
In every criminal trial a conviction can only be based on the weight of actual evidence
adduced and it is dangerous and inadvisable for the trial judge to put forward a theory
not canvassed in evidence or in counsel’s speech.205
9.4 Conviction
In view of the clear mandatory language under Sections 235 (1) and 312 (2) of the
CPA, there is no valid judgment when no conviction is entered. A valid judgment
must contain a conviction. However, in case of omission has been made by failure to
202
H  amis Rajab Dibagula vs Republic, Criminal Appeal No. 53 of 2001, CAT (unreported
203
Michael s/o Joseph vs Republic, Criminal Appeal No. 506 of 2016, CAT (unreported), Seleman
Nassoro Mpeli vs Republic, Criminal Appeal No. 3 of 2018, CAT DSM (unreported), Emmanuel Aloyce
Daffa vs Republic, Criminal Appeal No. 131 of 2021, CAT (unreported).
204
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).
205
Geoffrey Ntapanya And Another vs Dpp Criminal Appeal No. 232 of 2019 CAT (unreported), 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).

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pronounce a conviction, it may be cured by the rule of Maxims of Equity that “Equity
treats as done that which ought to have been done”. That means, the sentencing
of an accused person implies conviction by the trial court.206
9.5 Substitution of conviction in minor and cognate offences
The requirements for substitution for minor and cognate offences are availed under
Section 300 of the CPA. For a court to resort to this Section, the particulars of the
offence sought to be substituted must be a combination of at least some particulars
which in themselves constitute a minor offence. The word “cognate” is defined in the
1966 impression of Chamber of Twentieth Century dictionary to mean “of the same
family, kind or nature, related or allied”.
Though a magistrate or Judge has power under Section 300 of the CPA to convict
the accused of a different offence from what he was originally accused of, still this
must be done only in cases where the accused is not in any way prejudiced by the
conviction on the new charge. 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, he must be seriously prejudiced in his defence.207
9.6 Sentencing
Section 320 of the CPA requires the Court before passing the sentence to receive
such evidence as it thinks fit in order to inform itself as to the sentence proper to be
passed.208 Sentencing comes after the conviction of an accused person, either after
his own plea of guilty or after a full trial in a court of law. So, in law, a person is said
to have been sentenced if he is charged under a law that creates a specific offense
that can be judicially ascertained and which prescribes a specific punishment for the
offense.209
9.7 Imposing maximum or minimum penalties
One effect which a maximum penalty may have, on occasion, is to lower the scale
of punishment which courts might otherwise set for an offence. This flows from the
off-repeated principle that the maximum sentence should be reserved for the worst
examples of the kind of offence in question.
It is to be presumed that in fixing a maximum penalty the legislature must have had in
mind the most aggravated circumstances which should be connected with commission
of the offence. The maximum penalty should be imposed only rarely and in particularly
shocking cases, otherwise, it is impropriate.210
206
 usa Mohamed vs Republic Criminal Appeal No. 216 Of 2005, CAT (unreported), Jafari Ally Appellant
M
vs Republic Criminal Appeal No. 170 of 2015, CAT (unreported), Aloyce Thomas @ Mabelee vs
Republic, Criminal Appeal No. 8 of 2016, CAT (unreported).
207
Kulwa Nassoro Mohamed vs Republic, Criminal Appeal No. 183 Of 2018, CAT (unreported), Richard
Estomihi Kimei And Another vs Republic, Criminal Appeal No. 375 Of 2016. CAT (unreported), Director
of Public Prosecution vs ACP Abdallah Zombe 8 Others, Criminal Appeal No. 358 of 2013, CAT
(unreported), Emma Ngwada vs Republic, Criminal Appeal No. 406 Of 2013 Cat (unreported).
208
M
 atiko S/O Chandruku @ Kehu Vs Republic, Criminal Appeal No. 139 Of 2020, CAT (Unreported
209
Tanzania Sentencing Manual for Judicial Officers
210
H
 assani Charles vs Republic Criminal Appeal No. 329 of 2016, CAT (unreported).

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However, in imposing the sentence the hands of the courts are tied when the sentence
is couched in mandatory terms hence giving no room for judges to incorporate the
sentence ought to be pronounced as prescribed.211
9.8 The use of the word “liable” in sentencing
The term ‘liable’ when used gives flexibility to the presiding Judge or Magistrate
to exercise his discretion in sentencing depending on the circumstances of each case,
after considering both the aggravating and mitigating factors. Words shall be liable
to, do not in their ordinary meaning require that imposition of the stated penalty but
merely express the stated penalty which may be imposed at the discretion of the
Court. In other words, they are not mandatory but provide a maximum sentence only
and while the liability existed the court might not see fit to impose it.212
9.9 Pre-conviction period spent by accused under Custody
The pre-conviction period spent by the accused person in custody cannot be counted
or deducted as time served from the sentence to be imposed. The time spent by the
accused under custody before being found guilty, convicted and sentenced, can be
used as a mitigating factor in imposing sentence.213
9.10 Concurrent and consecutive sentence
Under Section 168(2) of the CPA, where a person commits more than one offence
at the same time and in the same series of transactions, save in very exceptional
circumstances, it is proper to impose concurrent sentences.214 Concurrent sentence
is defined as two or more sentences of jail time served simultaneously whereas
consecutive sentence means two or more sentences of jail time to be served in
sequence.215
When an accused person is convicted of two or more offences, separate sentences
must be imposed for each count. It is a general practice that sentences shall run
concurrently. A trial court only awards consecutive sentences in exceptional
circumstances, such as the extreme gravity of a particular offence.216
9.11 Punishment for a first offender
Where the first offender is convicted, the emphasis should always be on the reformative
aspect of punishment unless the offence is one of such serious nature that an exemplary
punishment is required or unless the offence is so widespread that severe punishment
is needed as shock deterrence.217

211
D
 PP, vs Ally Abdallah Pashua @ Kipevu Criminal Appeal No. 191 of 2014, CAT (unreported)
212
B
 ahati John VsRepublic ,Criminal Appeal No. 114 Of 2019, Cat(Unreported
213
V
 uyo Jack vs Director of Public Prosecutions, Criminal Appeal No. 334 of 2016, CAT (unreported),
Khamis Said Bakari vs Republic, Criminal Appeal No. 359 of 2017, CAT (unreported),).
214
S
 tanley Murithi Mwaura vs Republic. Criminal Appeal No. 144 of 2019 CAT (unreported).
215
B
 rian A. Garner, Blacks Law Dictionary , 8th Ed.
216
Tanzania Sentencing Manual For Judicial Officers
217
Yeremia @ Jonas Tehani vs Republic. Criminal Appeal No. 100 of 2017, CAT (unreported).

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9.12 Sentence in murder case for a minor

The requirement of Section 26 (2) of the Penal Code is that, the sentence of death
shall not be pronounced on or recorded against any person who at the time of the
commission of the offence was under eighteen years of age, but in lieu of the sentence
of death, the court shall sentence that person to be detained during the President’s
pleasure, and if so sentenced he shall be liable to be detained in such place and under
such conditions as the Minister for the time being responsible for legal affair may
direct, and whilst so detained shall be deemed to be in legal custody.218
9.13 Sentencing where the offender murdered several persons
In case the accused person is convicted on several counts of murder, sentence of
death should be passed on one count. The logic encapsulated in this position is not
far to seek; once a sentence in respect of the first count is executed, there will be no
person against whom to execute the sentences in respect of the other counts.219
9.14 When appellate court can interfere with a sentence
The appellate court can interfere with the sentence of the trial court in the following
circumstances;220
(i) Where the sentence is manifestly excessive or it is so excessive as to
shock,
(ii) Where the sentence is manifestly inadequate,
(iii) Where the sentence is based upon a wrong principle of sentence,
(iv) Where a trial court overlooked a material factor,
(v) Where the sentence has been based on irrelevant considerations such as
the race or religion of the offender,
(vi) Where the sentence is plainly illegal, as for example, corporal punishment
is imposed for the offence of receiving stolen property; and
(vii) Where the trial court did not consider the time spent in remand by an
accused person.

218
 amis Chuma @ Hando Mhoja vs Republic, Criminal Appeal No. 36 Of 2018 CAT (unreported), Wallii
H
Abbdallah Kibutwa & 2 others v. Republic, Criminal Appeal No. 127 of 2003, CAT (unreported).
219
Yustine Robert vs Republic, Criminal Appeal No. 329 of 20l7 CAT (unreported), Aliyu Dauda @ Hassan
and 2 Other vs Republic, Criminal Appeal No. 282 Of 2019 CAT (unreported).
220
B
 ahati John vs Republic, Criminal Appeal No.114 of 2019 CAT (unreported)

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 Criminal Prosecutions Case Manual

PART X
POST TRIAL PROCEEDINGS

10.0 Appeals
A person aggrieved by any finding, sentence or order made or passed by a trial court
may appeal to the High Court by virtue of Sections 359,360,361,362 and 362 of the
CPA. In accordance with Section 6(1) of AJA the person convicted on a trial or appeals
held by the High Court or by a subordinate court exercising extended powers, may
appeal to the Court of Appeal. The appeal process is initiated by filling a notice of
appeal.
10.15 Notice of appeal to the High Court
In terms of Section 361(1) (a) and 379(1) (a) of CPA, an appeal is initiated by filling
notice of appeal. Notice of appeal by a person other than the DPP should be filled
within ten (10) days from the date of judgment. Notice by the DPP should be filed
within 30 days after acquittal, finding, sentence or order against which he wishes to
appeal against. Notice should be lodged in the trial court. Failure to file notice within the
prescribed time deprives the High Court power to entertain the appeal.221
10.16 Notice of appeal to the Court of Appeal
Rule 68 of The Court of Appeal Rules, requires any person who desires to appeal
to the Court of Appeal to give notice in writing, within thirty day from the date of that
decision, and the notice of appeal shall institute the appeal the notice should be in
triplicate lodged with the Registrar of the High Court where the decision against which
it is desired to appeal was given.
10.17 Petition of appeal to the High Court
Sections 361(1) (b) and 379(1) (b) of the CPA requires the petition of appeal to be filed
within 45 days from date of the finding, sentence or order. In computing the 45 days
to file the petition of appeal, the time required for obtaining a copy of the proceedings,
judgment or order appealed against shall be excluded.222 Notice of time and place
shall hearing. Section 381(1) of the CPA the High Court has an obligation to cause
notice to be given to the respondent or to his advocate. In circumstances where notice
of time, place and hearing cannot be served on the respondent because he cannot be
found through his address obtained by the court under Section 228 and 275, the notice
shall be brought to his attention through publication in a newspaper three times, and
at the end of that service the court shall proceed with the appeal in the absence of the
respondent pursuant to Section 381 (2) of the, CPA.223

221
 everend Ernest K. Mrema vs Alex Mrema 6 Others Criminal Appeal No 387 Of 2017, CAT (unreported)
R
and Rafael Chagula vs Director of Public Prosecutions (Dpp) Criminal Appeal No. 307 Of 2019, CAT
(unreported).
222
L
 azaro Mpigachai vs Republic, Criminal Appeal No. 75 of 2018, CAT (unreported).
223
S
 aid Bakari vs Republic, Criminal Appeal No. 295 of 2021, CAT (unreported).

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Notice of intention to appeal from subordinate court to High Court should have a specific
prescribed format and title “In the High Court of Tanzania” although it should be filed
in the District Court as per section 379(1) (a) of the CPA. This should also be the case
for notice of appeal lodged under section 361(1) of the CPA by other appellants.224
10.18 Summary rejection of the Appeal
Summary dismissal is an exception to the general principle of Criminal law and
Criminal Jurisprudence. When the power is exercised, the following should be taken
into consideration;225
(i) The powers have to be exercised sparingly and with great circumspection,
(ii) The section does not require reasons to be given when dismissing an
appeal summarily. However, it is highly advisable to do so,
(iii) It is imperative that before invoking the powers of summary dismissal a
Judge or Magistrate should read thoroughly the record of appeal and the
memorandum of appeal and should indicate he/she has done so in the
order summarily dismissing the appeal,
(iv) An appeal may only be summarily dismissed if the grounds are that the
conviction is against the weight of the evidence or that the sentence is
excessive,
(v) Where important or complicated question of fact and/or law are involved or
where the sentence is severe the Court should not summarily dismiss an
appeal but should hear it,
(vi) Where there is a ground of appeal, which does not challenge the weight
or evidence or allege that the sentence is excessive, the Court should
not summarily dismiss the appeal but should hear it even if that ground
appears to have little merit.
10.19 Determinations of grounds of appeal
In the first place, an appellate court is not expected to answer the issues as framed
at the trial. That is the role of the trial court. It is however, expected to address the
grounds of appeal before it, though it does not have to deal seriatim with the grounds
of appeal as listed in the memorandum of appeal. It may, if convenient, address the
grounds generally or address the decisive grounds of appeal only or discuss each
ground separately”.226

224
 he Director of Public Prosecutions vs Sendi Wambura, Criminal Appeal No 480 of 2016 CAT
T
(unreported). Farijala Shabani Hussein and Another vs Republic, Criminal Appeal No. 274 of 2012,
(unreported).
225
P
 opart Emanuel vs Republic, Criminal Appeal No. 200 of 2010, CAT (unreported).
226
N
 yakwama On Dare @ Okware vs Republic, Criminal Appeal No. 507 Of 2019, CAT (unreported).

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10.20 Matters not raised at the first appellate court

Matters not raised by parties and canvassed by the first appellate court cannot be
raised at second appellate court. However, the principle does not apply when the
matter involves a point of law.227
10.21 Concurrent finding of the lower court
The Court sitting as a second appellate court has no power to interfere with the
concurrent finding of fact by the two courts below. The Court can only do so where it is
evident that such concurrent findings resulted from misapprehension, misdirection and
non-direction of the evidence or omission to consider available evidence.228
10.22 Revision
The provisions for Revision are provided by Sections 372,373,374, 375 and 376 of
the CPA. The High Court is empowered to call and examine the record of any criminal
proceedings before any subordinate court for the purpose of satisfying itself as to the
correctness, legality or propriety of any finding, sentence or order recorded or passed,
and as to the regularity of any proceedings of any subordinate court. Revisional powers
conferred to the Court are not meant to be used as an alternative to the appellate
jurisdiction of the Court. Therefore, the Court cannot be moved to use its revisional
jurisdiction where an applicant may invoke his/her right of appeal to the Court.229
Moreover, a revisional order under Section 373 of the CPA may be invoked without
prejudice to an accused person unless he has had an opportunity of being heard either
personally or by an advocate in his own defence. It should be noted that although
pursuant to Section 374 of the CPA the High Court may, in its absolute discretion,
conduct revisional proceedings, in certain cases, in the absence of the parties, the said
Section expressly stresses the peremptory requirement to hear the affected party in
terms of Section 373 of the CPA.230
10.23 Interlocutory Orders
Under Section 359(3) and 372 of the CPA, it is provided that an interlocutory order is
neither appealable nor revisable. However, an interlocutory decision can be revised or
appealed against only if has determined the rights of the parties to finality, thus, there
must be a finding, order or sentence passed by the subordinate court for the High Court
to review. 231

227
E liah Bariki vs Republic, Criminal Appeal No. 321 of 2016, CAT Arusha (unreported)., Frank Kanani
vs Republic Criminal Appeal No. 425 of 2018, CAT (unreported), George Mwanyingili vs Republic
Criminal Appeal No. 335 of 2016, CAT (unreported).
228
Asajile Henry Katule And Another vs Republic, Criminal Appeal No. 30 Of 2019, CAT (unreported),
Julius Josephat vs Republic, Criminal Appeal No. 03 of 2017, CAT (unreported).
229
J ohn Lazaro vs Republic Criminal Application No.1 Of 2018, CAT (unreported).
230
D pp vs Bookeem Mohamed @ Ally And 6 Others, Criminal Appeal No. 217 Of 2019, CAT (unreported
231
1 Freeman Aikael Mbowe 8 others vs Republic, Misc. Criminal Application No. 126 of 2018, HC DSM
(unreported).

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10.24 Review
Review is not to challenge the merits of decision. A review is intended to address
irregularities of a decision or proceedings which caused injustice to a party.232 In the
Court of Appeal the power of review is provided by Section 4 (4) of the AJA and the
grounds of review are stipulated under Rule 66 of the Tanzania Court of Appeal Rules,
2019.
The principles laid for review are as follows;233
(i) The principle underlying a review is that the Court would not have acted as
it had, if all the circumstances had been known,
(ii) A judgment of the final court is final and review of such judgment is an
exception,
(iii) In review jurisdiction, mere disagreement with the view of the judgment
cannot be the ground for invoking the same. As long as the point is already
dealt with and answered, the parties are not entitled to challenge the
impugned judgment in the guise that an alternative view is possible under
the review,
(iv) The review should not be utilized as a backdoor method to unsuccessful
litigants to re-argue their case,
(v) The power of review is limited in scope and is normally used for correction
of a mistake but not to substitute a view in law.
10.24.7Review is not an appeals in disguise
A review is by no means an appeal in disguise whereby an erroneous decision is
reheard and corrected. The principle underlying review is that the court would have
not acted as it did, if all the circumstances had been known. In a properly functioning
legal system, litigation must have finality, thus the Latin maxim of debet esse finis litum
requires.234
10.24.8What amounts to manifest error on face of records
An error apparent on the face of the records must be such as can be seen by one who
runs and reads, that is, an obvious and patent mistake and not something which can
be established by a long-drawn process of reasoning on points on which there may
conceivably two opinions. A mere error of law is not a ground for review under this rule.

232
M  aulid Fakhi Mohamed @Mashauri vs Republic, Criminal Application No. 120/7 of 2018, CAT
(unreported).
233
Sabato Thabit and another vs Republic, Criminal Application No. 17/04 of 2020 CAT(unreported),
Mirumbe Elias@Mwita vs Republic, Criminal Application No.04 of 2015,CAT(Unreported)
234
Ex F. 5842 D/C Maduhu vs Director Of Public Prosecutions, Criminal Application No. 46/06 Of 2019,
CAT (unreported), Benedict Buyobe @ Bene vs Republic, Criminal Application No. 01 of 2019, CAT
(Unreported), Muhsin Mfaume vs Republic, Criminal Application, No 43/01 of 2020, CAT (Unreported)

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The line of demarcation between an error simpliciter, and an error on the face of the
record may sometimes be thin. It can be said of an error that it is apparent on the
face of the record when it is obviously and self-evident and does not require elaborate
argument to be established.235

235
C
 handrakant Joshubhai Patel v. Republic, [2004] TLR 218, Seif Mohamed El-Abadan vs Republic,
Criminal Application No. 8/12 Of 2020, CAT (unreported), SP Christopher Bageni Vs Director of Public
Prosecutions, Criminal Aplication No. 63/01 of 2016, CAT (unreported), Andrew Shayo @ Bangimoto
Vs Republic, Criminal Application No. 37/01 of 2019, CAT (Unreported)

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PART XI
MISCELLANEOUS MATTERS

11.0 Doctrine of recent possession

The doctrine of recent possession can be applied where it is established that the
accused person was found in possession of a recently stolen property and did not give
a plausible explanation on how he came to possess it. For the doctrine to apply as a
basis for conviction, the following must be proved;236
(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.
“The doctrine of recent possession can be sufficiently invoked upon proof of the
unexplained possession of recently stolen property. This doctrine can be drawn even
if there is no other evidence connecting the accused to the more serious offence. It will
not apply where an explanation is offered which might reasonably be true.237
11.1 Doctrine of issue estoppels in Criminal Matters
The principle applies 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 or res judicata 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.238
In order to invoke the doctrine of issue of 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 re-agitated in the subsequent trial. The difference between issue
estoppel and the autrefois principle is that while the latter prevents the prosecution
from impugning the validity of the verdict as a whole, the former prevents it from
raising again any of the separate issues of fact which have been decided. There is
no provision in the Criminal Procedure Act or the Evidence Act, 1967, which embodies
the principle of issue estoppel. What is embodied in Sections 137 and 280 of the
former Act is, as already pointed out, the autrefois principle, and what is embodied in

236
 ugustino Mgimba vs Republic, Criminal Appeal No.436 of 2019, CAT(unreported), Ndugulile Mandago
A
vs Republic, Criminal Appeal No.58 of 2019 CAT (unreported), Dickson Kamala vs Republic, Criminal
Appeal No.422 of 2018 CAT (unreported), Salum Rajabu Abdul @Usowambuzi vs Republic, Criminal
Appeal No.219 of 2017 CAT (unreported)
237
J ohn Nkwabi @ Kakunguru Vs Republic, Criminal Appeal No. 443 ‘A’ Of 2019, Cat (Unreported)
238
Issa Athumani Tojo v R [2003] TLR 199. 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)

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s.123 of the latter Act (the Evidence Act) is estoppel by declaration, act or omission.239
The purposes of Doctrine of issue of estoppel are the following;240
1) 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
11.2 Functus officio
It is trite law that when a court finally disposes of a case, it ceases to have jurisdiction
over it. The court becomes functus officio when it disposes of a case by a verdict of not
guilty or passing sentence or some orders finally disposing of the case.241
11.3 Contradictions of witnesses and discrepancy
Contradictions by any particular witness or among witnesses cannot be escaped or
avoided in any particular case.242 It is not every discrepancy in the prosecution case
that will cause the prosecution case to flop. In evaluating discrepancies, contradictions
and omissions, it is undesirable for a court to pick out sentences and consider them
in isolation from the rest of the statements. The court has to decide whether the
discrepancies and contradictions are only minor or whether they go to the root of the
matter.243 When assessing the credibility of a witness, all the evidence, both oral and
documentary (if any) must be considered and assessed, not just selected portions of
the evidence. The third observation is that, in all trials, normal discrepancies are bound
to occur in the testimonies of witnesses, due to normal errors of observations such as
errors in memory due to the lapse of time or due to mental disposition such as shock
and horror at the time of occurrence. Therefore, contradictions, inconsistencies etc on
trivial matters which do not affect the case of the prosecution case should not be made
ground on which the evidence can be rejected in it’s entirely.244
11.4 Consent and certificate of the DPP in economic offences
Under Section 3 of the EOCCA, the jurisdiction to try economic crimes is solely vested
with the High Court sitting as an economic crimes court upon the Consent of the
239
Issa Athumani Tojo (supra)
240
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).
241
Karori Chogoro vs Waitihache Marengo Civil Appeal No.164 of 2018, Miburo Cosmas Versu Republic
Criminal Appeal No. 519 Of 2016, CAT (Unreported)
242
Armand Guehi vs Republic, Criminal Appeal No. 242 of 2010 CAT(Unreported), Eliah Bariki Vs
Republic, Criminal Appeal No. 321 Of 2016, CAT (Unreported)
243
D ickson Elia Nsamba Shapwata &. Another V. Republic, CriminalAppeal No 92 of 2007 CAT
(Unreported)
244
Deus Josias Kilala@Deo vs Republic, Criminal Appeal No. 191 of 2018 CAT (unreported), Marmo Slaa
Hofu and others vs Republic, Criminal Appeal No. 246 of 2011 CAT (unreported), Christian Ugbechi
vs Republic, Criminal Appeal NO. 274 of 2019 CAT (unreported), Shabani Haruna@Dr. Mwagilo
vs Republic, Criminal Appeal No. 396B of 2017 CAT (unreported), Abiola Mohamed @ Simba vs
Republic, Criminal Appeal No.291 of 2017 CAT (unreported), Mohamed Said Matula [1995] TLR

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Director of Public Prosecution pursuant to Section 26(1) of the EOCCA. Subordinates’

courts have no jurisdiction to hear the case unless the Director of Public Prosecutions
has issued consent to prosecute the accused and a certificate of transfer of a case
to a subordinate Court pursuant to Section 12(3) and (4) of the EOCCA. Through
the power vested in him under 26(2) of EOCCA the DPP has issued a notice.245
Authorizing Directors, Regional Prosecution Officers, District Prosecutions Officer
and Prosecutions Attorney In-Charge to exercise powers vested in him under Section
26(1) of the EOCCA. However subject to the said notice their powers are limited to the
nature of offences and value of the subject matter.
The consent and certificate should reflect or match with the provisions of offences of
which the accused stand charged, otherwise would seize the jurisdiction of trial court
to try the accused246. After filling, the consent and certificate should be endorsed.247
11.5 Retrial principles
It is settled principle of law that, a retrial will be ordered only if the original trial is illegal
or defective. It will not be ordered because of insufficiency of evidence or for the
purposes of enabling the prosecution to fill up gaps. The bottom line is that, an order
should only be made where the interest of justice so requires.248
11.6 The Principle of Common intention
This principle entails that, when two or more persons form a common 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. 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.249
To constitute common intention to prosecute an unlawful purpose, it is not necessary
that there should be any concerted agreement between the accused persons prior
to the commission of the unlawful act. It may be inferred from their presence, their
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.250
Furthermore, for the principle of common intention to be invoked, the role of each
accused must be described ie. What he did, how he did it and in what manner.
Practically, for homicide offences for example where an attack on the deceased was
administered by a group of people, the witness pointing a finger against any of the
accused persons must describe the role of each individual how he took part like the
245
E  conomic Offences (Specification of Offences for Consent) Notice, 2021 GOVERNMENT NOTICE
NO. 496H published on 30/6/2021
246
D  ilipkumar Maganbai Patel..Vs Republic Criminal Appeal No. 270 Of 2019, CAT (Unreported
247
Adam Selemani Njalamoto Vs Republic Criminal Appeal No. 196 Of 2016, CAT (Unreported)
248
Fataheli Manji v. Republic (1966) EA 341, Nestor Simchimba vs Republic, Criminal Appeal No.454 of
2017 CAT Mbeya (Unreported) PG.13
249
Mhina Mndolwa @ Mhina vs Republic, Criminal Appeal No. 49 of 2007 CAT Tanga (unreported) pg. 9
250
W
 anjiro Waimath V.R (1955) EACA 116, GodfreyJames Ihuya V.R (1980) TRL 197

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type of weapon used, the area of the body afflicted, the number of blows. The witness
has to assure the court that he really identified such person.251
11.7 Asset Recovery and Forfeiture
Asset recovery refers to the forfeiture of properties/assets generated from crime or
used in the commission of the crime. The Proceeds of Crime Act, Cap 256 terms
these properties as “tainted properties”. The targeted properties under this regime
are instrumentalities and proceeds of crime.
11.8 Rationale behind Asset Forfeiture and Recovery
The traditional responses to crime, which focuses on taking offenders to jail while leaving
them to enjoy their ill-gotten wealth and use the same wealth to finance other crimes
is not effective in the fight against crime. It is now widely accepted in the international
community that effective action in the fight against crime must include measures to
deprive criminals of their assets either representing proceeds or instrumentalities of
crime. Criminals are more hurt when they are deprived of their ill-gotten properties
than being sent to prison. It was for this reason that, asset recovery and forfeiture of
proceeds and instrumentalities of crime has been globally identified and adopted as
an effective strategy in the fight against crimes. This is reflected in several regional
and international instruments and legislations enacted by many countries around the
world.
To this end, international and regional instruments require member states including
Tanzania to adopt, to the greatest extent possible within their domestic legal system,
such measures as may be necessary to enable confiscation of proceeds and
instrumentalities of crime.252
In compliance with international requirements, the United Republic of Tanzania has
devoted to asset forfeiture of the proceeds and instrumentalities of crime as a major
weapon to fight against crime. The fight is by using the following domestic legislations:-
(1) 
Section 12 of the National Prosecutions Service Act, Cap.430 which empowers
the Director of Public Prosecutions to take any further proceedings or step that
may be required to recover the amount of money payable to the Government
under a court order or enforce the forfeiture order against the property forfeited
to the Government,
(2) 
the Proceeds of Crime Act, Cap 256 which is the major procedural legislation on
asset forfeiture and recovery,
(3) Section 60 of the Economic and Organized Crime Control Act, Cap 200,

251 Director of Public Prosecutions vs Elias Laurent Mkoba and another (1990) TLR 115 (CA),
Jumanne Salum Pazi v Republic, [1981] TLR 246
252 The United Nations Convention Against Transnational Organized Crime, 2000 (Article 12), the
United Nations Convention Against Corruption, 2003 (the whole Chapter V), the Financial Action Task
Force, 2012 (Article 4), the African Union Convention on Preventing Corruption, 2003 (Article 12) and
the Southern African Development Community Protocol on Mutual Assistance in Criminal Matters, 2002
(Articles 20 and 21).

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(4) 
the whole part VI of the Mutual Assistance in Criminal Matters Act, Cap. 254,
(5) Section 351(1)-(4) of the Criminal Procedure Act, Cap 20,
(6) Section 30 of the Penal Code,Cap.16
(7) 
Section 38 and the whole part IV of the Prevention and Combating of Corruption
Act,Cap.329
(8) Sections 49 and 49A of the Drug Control and Enforcement Act, Cap 95,
(9) 
Section 111(1),(2), (3) and (4) of the Wildlife and Conservation Act, Act No.5 of
2009);-
(10) Section 97(1) and (2), the Forest Act, No.14 of 2002, and
(11) The Anti-Money Laundering Act, Cap.423.
11.9 Benefits of asset forfeiture and recovery
The benefits of Asset forfeiture and Recovery can be summarized as follows: -
(i) To deprive the proceeds and instrumentalities and other benefit of crime
from criminals thereby sending a strong message and in fact making
criminals accept that “Crime does not pay.”
(ii) To remove incentives of crime.
(iii) Forfeiture like other punishments serves as a deterrent to criminals to
further commit crimes of his nature and other benefit generating crimes
will dramatically decrease or even cease.
(iv) Attacks criminal’s economic base by removing source of finance from
criminals for continued operation and expansion of criminal enterprises in
the wildlife and forest sector (prevent re-investment of proceeds of crime)
after they have lost funding and assets.
(v) Disruption of criminal organizations - Denies criminals financial capability
to commit or fund commission of other crimes (Incapacitate criminals by
denying them financial strength).
(vi) Restoration of properties to rightful owners: a means of recovering property
that has been taken from victim and restoring it him.
(vii) Forfeiture is used to protect the community and to demonstrate to the
community that law enforcement is working in its interest.
(viii) Asset Forfeiture and Recovery signifies the presence of the State by
redressing the unjust enrichment of those few who illegally benefit from
public fund, natural wealth and natural resources thereby engendering
public confidence in the government by demonstrating that nobody is left
to enjoy illicit enrichments.

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Instrumentalities are properties used to facilitate the commission of the crime for
instance a motor vehicle carrying illegal immigrants or drugs, it is an instrumentality
of the offence and can be forfeited outright on application under Section 351(1)(a) of
the CPA. This is normally done when advancing aggravating factors but it can also be
done in a separate application under the Proceeds of Crime Act, Cap 256. The law
allows for persons with interest in the property used in the commission of the offence
to apply to the court for exclusion of their interest where they believe that they are
innocent owners meaning that that they had no knowledge neither did they consent
their properties being used in the commission of the offence.253
Proceeds of crime are those properties generated from the commission of crimes. A
criminal commits a certain serious offence and generates money which in turn is used
to buy properties. These properties are subject to forfeiture by the court. Properties
are forfeited to the government upon the court’s satisfaction that there is no evidence
produced to cast doubt on the application for forfeiture and that the properties were
proceeds of crime. The standard of proof is on the balance of probabilities.254
Where there is an identified victim restorative justice should take place and the forfeited
property be given to the victim. Restoration to the victims may be done directly by
giving the forfeited property to him or depending on the nature of the case where there
is monetary compensation order of restitution can be done under Section 328 of the
CPA through a warrant of the levy.
Forfeiture in our jurisdiction is conviction-based forfeiture; this means a person must
first be convicted of an offence in an independent criminal trial then asset forfeiture
proceedings should follow see Section 9 POCA, 60 EOCCA and 49 of DCEA.
POCA allows asset forfeiture on persons who have died before the completion of the
investigation or who have been charged but died before conviction, see Sections 13A.
What is supposed to be proved on the balance of probability is that a confiscation
order would have been made shall the accused not die.255
Section 30 (1) of POCA, forfeiture application can be made where the DPP for any
reason believes that is not possible to bring the person to court.
11.10 Preservation of assets pending confiscation order
In order to preserve the value of the property so as to satisfy the confiscation order,
interim orders like restraining orders may be applied and granted. Section 38(7) of
POCA allows disposal of any property under restraint that is subject to natural decay,
wear and tear, depreciation or whose maintenance may cause substantial expenses.
In granting the restraining order, the test is whether the applicant has met the threshold
253
 he Director of Public Prosecutions vs Nikula Mandungu, Criminal Appeal No. 47 of 1989, CAT
T
(Unreported), The Attorney General vs Mugesi Anthony and 2 Others, Criminal Appeal No. 220 of
2011 CAT (unreported)
254
M
 agoiga Mnanka vs Republic, Criminal Appeal No. 105 of 1998 CAT (unreported), Director of Public
Prosecutions vs Jackson Sifael Mtares and 3 Others, Criminal Application No. 42 of 2019, CAT
(unreported) page. 39. and Section 75 of the POCA, Jackson Sifael Mtares and 3 Others vs The
Director of Public Prosecutions, Civil Appeal No.180 of 2019, CAT (unreported)
255
The Director of Public Prosecution vs Julieth Simon Peleka (The Administratrix of the Estate of the late
Gebu Ichoma Sayi), Criminal Appeal No.94 of 2019 CAT (unreported) at page 18

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under Section 38 (1) (2) of the POCA rather than who will benefit from the order.256
Some interim orders do not need to be permitted by the court via the court application.
The same is referred to as administrative restraint. Here, IGP or DCI may authorize
a police officer of or above the rank of ASP to freeze a bank account and take any
document whatsoever related therein. The point to note is that this order is valid only
for 14 days, and after the expiration of those days then extension should be sought in
Court.
The DPP under POCA can apply for a pecuniary penalty order against a person who
derived benefit from the commission of the offence as stated under Sections 21&22 of
POCA, this is done when the suspect has accrued some benefits from the commission
of the offence. The application should be done within six months from the date of
conviction.
Foreign restraint and forfeiture orders may be registered and enforced in Tanzania as
per Sections 18 and 54 of POCA read together with Section 32 of Mutual Assistance
in Criminal Matters Act, Cap 254. Here the order given outside our jurisdiction for the
properties situated within our jurisdiction can be registered by the High Court and
acquire a status as the Decree of the High court.
S.24 of the POCA, Part VI of the Mutual Assistance in Criminal Matters Act Cap.254
R.E 2002] applies. Where any person aggrieved by the order made under POCA may
appeal against it. The procedure for appeal shall be as in the Criminal Procedure Act.
11.11 Money Laundering
Money laundering refers to the concealment of the identity of the illegally obtained
money, so that it appears to have come from a legitimate source.257 The Offence is
accommodated by the Anti-Money Laundering Act “AMLA”.258
Section 12 of the AMLA is a criminalizing provision of Money Laundering with respect
to proceeds of predicate offence. The Section provides several modes (actus reus)
of committing money laundering offence which include engagement, concealment,
transfer, conversion, transmission and transportation.
For the offence of money laundering under Section 12 of the AMLA to be proved, the
prosecution need not necessarily prove the process of laundering the money so to
speak that is placement, layering and integration. It suffices to prove that the suspect
dealt with the proceeds of a predicate offence by engaging in a transaction involving
such proceeds”. 259

256
S amo Ally Issack and 4 Others vs Republic, Criminal Appeal No. 136 of 2021 CAT (unreported)
257
 im Bennet, A practitioner’s guide to Money Laundering Compliance, Totel Publishing Ltd,2017 pg.1
T
258
Stanley Murtthi Mwaura Vs Republic, Criminal Appeal No. 144 Of 2019 CAT, TZCA, DPP Vs Harry
Msamire Kitilya, Shose Sinare, and Sioi Solomon, Criminal Appeal No.105/2016 HC, Yusuph
NdaturuYegera @ Mbunge Hilter vs Republic, Criminal Appeal No.195 of 2017, CAT (unreported)
259
S
 tanley Murithi Mwaura versus Republic, Criminal Appeal No. 144/2019, CAT (unreported).

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The money laundering offence is committed under Section 12 (of the Anti-Money
Laundering Act) when a person involves himself in any of the acts stated under
paragraph (a) – (e) of that Section.260
11.12 Juvenile Cases
Section 98 (1) (a) of the Law of the Child Act, Cap.13 provides that a child shall be
tried by a Juvenile Court and Section 97 of the same establishes a Juvenile Court for
purposes of determining matters relating to children.261
A social welfare officer is required in proceedings in the Juvenile Courts established
under Section 97 (1) of the Law of the Child Act. The provisions of Section 99 (1) (d)
of the same Act mandatory require a social welfare officer to be present during the
proceedings in the Juvenile Courts. The presence of the social welfare officer does not
envisage situations when the child is a witness it envisages situations when the child
is in conflict with the law that is when the child is an accused person.262
11.13 Identification
11.13.1 Visual Identification
Evidence of visual identification, as Courts in East Africa and England have warned
in a number of cases, is of the weakest kind and most unreliable. It follows therefore
that no court should act on evidence of visual identification unless all possibilities of
mistaken identity are eliminated and the court is fully satisfied that the evidence before
it is absolutely watertight. The Court has set out guidelines on visual identification
which the courts in this jurisdiction have repeatedly followed. These are, the time the
witness had the accused under observation the distance at which he observed him
the conditions in which such observation occurred, for instance, whether it was day or
night time whether there was good or poor lighting at the scene and further whether
the witness knew or had seen the accused before or not. 263
11.13.2 Voice Identification
Voice identification is the weakest and most unreliable evidence which require great
care to be taken before acting on it.264 The rationale for that is not hard to find. There
is always a possibility that a person may imitate another’s voice so as to disguise his
identity.265 Familiarity with the voice in question is of essence before acting on it.266

260
Yusuph Ndaturu Yegera @ Mbunge Hitler vs Republic, Criminal Appeal No.195/2017 CAT (unreported).
261
 mosi Robare @ James vs Republic, Criminal Appeal No. 401 of 2017, CAT (unreported), Furaha
A
Johnson vs Republic, Criminal Appeal No. 452 of 2015, CAT (unreported)
262
M edson Manga vs Republic, Criminal Appeal No. 259 of 2019, CAT (unreported)
263
F araji Ally Likenge Vs Republic, Criminal Appeal No. 381 Of 2016, Cat (Unreported
264
( See Nuhu Selemani v. Republic [1984] 93, and Stuart Erasto Yakobo v. Republic, Criminal Appeal
No. 202 of 2004 CAT (unreported).
265
( See Stuart Erasto Yakobo v. Republic (supra).
266
S ee Kaganja Ally and Another v. Republic [1980] TLR 270).

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It is also of essence that the identifying witness must have properly heard the suspect
talking at the scene of crime, Strength of the voice and the duration the suspect had
taken in talking.267 The ability of a witness to name a suspect at earliest opportunity
is an important assurance of his reliability, in the same way as unexplained delay or
complete failure to do so should put a prudent court to enquiry.268
11.13.3 Identification by recognition
Identification by recognition may be more reliable than the identification of a stranger.
Still, even when the witness purports to recognise someone he knows, the Court
should always be aware that mistakes in recognising his relatives and friends are
sometimes made.269
11.13.4 Dock Identification
It is a well-established rule that dock identification of an accused person by a witness
who is a stranger to an accused has value only where there has been an identification
parade at which the witness successfully identified the accused person before he
was called to give evidence at the trial. The dock identification not preceded by an
identification parade is of little value, if at all not corroborated.270
11.13.5 Identification parade
The legal framework for identification parade is echoed through Section 60 of CPA
and Section 38 of Police Force and Auxiliary Services Act [Cap 322. R.E. 2002] the
procedures to adhere when conducting identification parade are accorded by PGO
no. 232. It is settled law that for any identification parade to be of any value, the
identifying witnesses must have given a detailed description of the suspects earlier.271
An identification Parade has no value when the witness knew the accused before.272

267
H  ekima Madawa Mbunda And Another Vs Republic, Criminal Appeal No. 566 Of 2019, Cat (Unreported
268
M  arwa Wangiti and Another Vs Republic [2002] TLR 39
269
Shamir s/o John vs Republic, Criminal Appeal No.166 of 2004, CAT (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)
270
Emanuel Lazaro and two others vs Republic, Criminal Appeal No. 395 of 2005, CAT(unreported),
Hepa John Ibrahim vs Republic, Crimnal Appeal 105 of 2020, CAT (Unreported), Halfan Mwinshehe
vs Republic, Criminal Appeal no 54 of 2018, CAT (Unreported)
271
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 (unreported), Omary Hussein Ludanga and
another vs Republic, Criminal Appeal No. 547 of 2017, CAT (unreported)Rex vs Mwango Manaa
[1936] 3 EACA 29
272
G
 od Salehe @ Shaibu Salehe vs Republic, Criminal Appeal No. 466 of 2019 CAT (unreported)

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TABLE OF STATUTES AND RULES

(1) The Constitution of the United Republic of Tanzania, 1977 as amended

(2) The Penal code [Cap.16 R.E 2019].
(3) Tanzania Evidence Act [Cap.6 R.E 2019]
(4) Electronic Transactions act No.13 of 2015
(5) The Economic and Organized Crime Control Act [Cap.200 R.E 2019]
(6) The Wildlife Conservation Act, No. 5 of 2009
(7) The Criminal Procedure Act [Cap.20 R.E 2019]
(8) The Magistrates Court Act, [Cap.11 R.E 2019]
(9) The Appellate Jurisdiction Act [Cap.141 R.E 2019]
(10) The Primary Courts Criminal Procedure Act
(11) The Legal Aid Act [Cap 21 R.E 2019]
(12) The Anti-Money Laundering Act [Cap.423 R.E 2019]
(13) The Proceeds of Crime Act, [Cap.256 R.E 2019]
(14) The National Prosecutions Service Act [Cap.430 R.E 2019]
(15) Drug Control and Enforcement Act Cap.95 R.E 2019
(16) The Law of the Child Act [Cap.13 R.E 2019]
(17) The Police Force and Auxiliary Services Act [Cap.322 R.E 2002]
(18) The Medical Practitioners and Dental Act Cap.152 R.E 2002
(19) The Law of Marriage Act [Cap.29 R.E 2019]
(20) The Oath and Statutory Declaration Act Cap.34 R.E 2019
(21) The Court of Appeal Rules 2009
(22) The Accelerated trial and Disposal of cases Rules G.N No.192 of 20188
(23) Police General Orders
(24) The Human DNA Regulatory Act, 2009

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LISTS OF CASES

(1) 
Abas Kondo Gede vs Republic, Criminal Appeal No. 472 of 2017 CAT DSM
(unreported).
(2) 
Abdallah Kondo vs Republic, criminal appeal no 32 of 2015, CAT DSM
(unreported).
(3) 
Abdallah Nguchika vs Republic, Criminal Appeal No.182 of 2018 CAT DSM
(unreported).
(4) 
Abdul Mohamed Namwaga Madodo vs Republic, Criminal Appeal No.257 of
2020 CAT Mtwara (unreported).
(5) 
Abiola Mohamed @ Simba vs Republic, Criminal Appeal No.291 of 2017 CAT
Arusha (unreported).
(6) 
Adam Angelius Mpondi vs The Republic, Criminal Appeal No. 180 of 2018,
CAT DSM (unreported).
(7) 
Ahmed Shilla Mkumbo vs Director of Public of Prosecutions, Criminal Appeal
No. 235 of 2010, CAT Zanzibar (unreported)
(8) 
Albanus Aloyce and another vs The Republic, Criminal Appeal No. 283 of
2015, CAT Arusha (unreported)
(9) 
Albert Mendes vs Republic, Criminal Appeal No. 473 of 2017 CAT DSM
(unreported).
(10) 
Alex Minani and two others vs The Republic, Criminal Appeal No. 275 of
2019, CAT Bukoba (unreported)
(11) 
Alex Mwalupupulage@Mamba vs Republic, Criminal Appeal No. 25 of
2020(unreported)
(12) 
Alexandris Athanansios vs Republic, Criminal Appeal No.362 of 2019 CAT
DSM (unreported)
(13) 
Aliyu Dauda @ Hassan And 2 Other vs Republic, Criminal Appeal No. 282 Of
2019 CAT Bukoba (unreported).
(14) 
Allan Duller vs Republic, Criminal Appeal No.367 of 2019 CAT DSM (unreported)
(15) 
Ally Chande @ Ally & Another vs Republic, Criminal Appeal No. 16 of 2006
CAT DSM (unreported).
(16) Ally Hassan Mpapata vs Republic [1992] TLR 265
(17) 
Ally Mohammed Mkupa vs Republic, Criminal Appeal No.2 of 2008 CAT
Mtwara (unreported).
(18) 
Ally Shabani @ Swalehe vs Republic, Criminal Appeal No. 351 of 2020, CAT,
Dodoma(unreported).
(19) 
Aloyce Thomas @ Mabelee vs Republic, Criminal Appeal No. 8 of 2016, CAT
Arusha (unreported).

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(20) 
Amani Bwire Kilunga vs Republic, Criminal Appeal No.372 of 2019 CAT DSM
(unreported).
(21) 
Ambros Elias vs. Republic, Criminal Appeal No. 368 of 2018 CAT Dar Es
Salaam (unreported)
(22) 
Amiri Mohamed v R [1994] TLR 12
(23) 
Amitabachan Machaga @ Gorong’ondo vs Republic, criminal appeal no. 271
of 2017, CAT DSM (unreported).
(24) 
Amon Mulotwa Mwalupindi vs DPP, Criminal Application No. 09/06 of 2020,
Court of Appeal of Tanzania, CAT Mbeya (unreported).
(25) 
Amos Lesilwa vs Republic, Criminal Appeal No.411 of 2015 CAT Dodoma
(unreported).
(26) 
Amos Masasi vs Republic, Criminal Appeal No. 280 of 2019, Court of Appeal of
Tanzania, CAT Bukoba(unreported)
(27) 
Amos Seleman vs The Republic, Criminal Appeal No. 267 of. 2015, CAT
Dodoma (unreported)
(28) 
Amosi Robare @ James vs the Republic, Criminal Appeal No. 401 of 2017,
CAT at Mwanza (unreported)
(29) 
Anania Clavery Betela vs Republic, Criminal Appeal No.355 of 2017 CAT DSM
(unreported).
(30) 
Andius George Songoloka and two (2) others vs Republic, Criminal Appeal
No. 373. of 2017, CAT Mbeya (Unreported)
(31) 
Andrea Bernardo &Another vs Republic, Criminal Appeal NO.128 of 2015,
CAT Mwanza (unreported)
(32) 
Andrew Shayo@Bangimoto Versus The Republic, Criminal Application No.
37/01 of 2019, CAT at Dar Es Salaam (Unreported)
(33) 
Angulile Jackson@Kasonya vs. DPP, Criminal Appeal No. 162 of 2019 CAT
Mbeya (unreported)
(34) 
Anna Moises Chisano vs The Republic, Criminal Appeal No. 237 of 2019, CAT
(35) 
Anold Elia Fikiri vs. Republic, Criminal Appeal No. 333 of 2018 CAT Mbeya
(unreported)
(36) 
Anold Loishie @ Leshai vs Republic, Criminal Appeal No.249 of 2017 CAT
Arusha (unreported)
(37) 
Anosisye Tubuke Mwamkinga vs Republic, Criminal Appeal No. 331 of 2016,
CAT Mbeya (unreported)
(38) 
Anosye Tubuke Mwankinga vs Republic, criminal appeal no. 331 of 2016, CAT
Mbeya (unreported).
(39) 
Antidius Augustine vs. republic, Criminal Appeal No.89 of 2017 CAT Bukoba
(unreported)

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(40) 
Apolinary Matheo &2 Others vs Republic, Criminal Appeal No.436 of 2017
CAT Mbeya (unreported)
(41) 
Asajile Henry Katule And Another vs Republic, Criminal Appeal No. 30 Of
2019, CAT Mbeya (unreported).
(42) 
Attorney General Vs Anthony Mugesi and 2 Others, Criminal Appeal No. 220
Of 2011(unreported),
(43) 
Attorney General Vs Paula Susan White, Misc. Criminal Application no. 85 of
2016.
(44) 
Augustino Mgimba vs Republic, Criminal Appeal No.436 of 2019, CAT Iringa
(unreported).
(45) 
Augustino S/O Nandi vs D.P.P. Criminal Appeal No. 388 of 2017, CAT Mbeya
(unreported).
(46) 
Ausi Mamu and two others vs Republic, Criminal Appeal No. 232 of 2004,
CAT Mbeya, (Unreported)
(47) 
Ayub Mfaume Kiboko and another vs Republic, Criminal Appeal No. 694 of
2020 CAT DSM (unreported).
(48) 
Azimio Machibya Matonge vs Republic, Criminal Appeal No.35 of 2016 CAT
Tabora (unreported).
(49) 
Bakari Yusuph Harid @Mkoko vs Republic, criminal appeal No. 290 of 2021,
CAT Mtwara (unreported).
(50) 
Bashiru Rashid Omar vs DPP, Criminal Appeal No.309 of 2017 CAT Zanzibar
(unreported).
(51) 
Bashiru Salumu Sudi vs The Republic, Criminal Appeal No. 379 of 2018, CAT
at Mtwara (Unreported)
(52) 
Benard Masumbuko Shio and another vs. Republic, Criminal Appeal No. 213
of 2007 CAT. Arusha (Unreported)
(53) 
Benedict Buyobe @ Bene Versus The Republic, Criminal Apllication No. 01 of
2019, Cat at Shinyanga (Unreported)
(54) 
Bernad Thobia Joseph and another Versus The Republic, Criminal Appeal
No.414 of 2018, CAT at Dar Es Salaam(unreported)
(55) 
Chacha Jeremia Murimi and three others vs The Republic, Criminal Appeal
No. 551 of 2015, CAT Mwanza (Unreported)
(56) 
Chacha Matiko Magige vs Republic, Criminal Appeal No.562 of 2015 CAT
Mwanza (unreported)
(57) Chacha v Republic, [1953] EACA 339
(58) 
Chamuhiro Kirenge@Chamuhiro Julias vs Republic, Criminal Appeal No.
597 of 2017, CAT Mwanza (unreported)
(59) 
Chandrakant Joshubhai Patel v. Republic, [2004] TLR 218,

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(60) 
Charles Abel Gasirabo@Charles Gazilabo and 3 others vs Republic, Criminal
Appeal No.358 of 2019 CAT DSM (unreported
(61) 
Charles Bode vs Republic, Criminal Appeal No. 46 of 2016, CAT Dar es Salaam
(unreported)
(62) 
Charles Yona vs Republic, Criminal Appeal No. 79 of 2019, CAT DSM
(unreported)
(63) 
Charo Said Kimilu and another vs Republic, Criminal Appeal No.111 of 2015
CAT Tanga (unreported).
(64) 
Christian Ugbechi V. Republic, Criminal Appeal no. 274 of 2019 CAT DSM
(unreported).
(65) 
Chrizant John vs Republic, Criminal Appeal No. 313 of 2015, CAT Bukoba
(unreported)
(66) 
Clement Pancras vs Republic, Criminal Appeal No. 321 of 2013, Court of
Appeal of Tanzania, CAT Mwanza (unreported)
(67) 
Crospery Ntagalinda @ Koro vs Republic, Criminal Appeal No. 312 of. 2015,
CAT Bukoba (unreported)
(68) 
D.P.P vs Shida Manyama @ Seleman Mabuba, Criminal Appeal No. 285 of
2012, CAT Mwanza (Unreported)
(69) 
Damian Luhele vs Republic, Criminal Appeal No.501 of 2007 CAT Mwanza
(unreported).
(70) 
Damiano Qadwe vs Republic, Criminal Appeal No. 317 of 2016, CAT Arusha
(unreported).
(71) 
Daniel Kivati Monyalu vs The Republic, Criminal Appeal No. 224 of 2019, CAT
at Dar es Salaam (Unreported)
(72) Danstan Authony Luambano V R (1990) TLR 4,
(73) 
Dastan Makwaya vs Republic, Criminal Appeal No. 179 0f 2017, Bukoba,
(unreported),
(74) Daud Jeremiah v R Criminal Appeal No. 359 of 2015 CAT (unreported)
(75) 
David Halinga vs Republic, Criminal Appeal No.12 of 2015 CAT Mbeya
(unreported)
(76) 
David Livingstone Simkwai and eight (8) others vs The Republic, Criminal
Appeal No. 146 of 2016 CAT Mbeya (Unreported)
(77) 
Deemay Daat and 2 others vs Republic, Criminal Appeal No.80 of 1994 CAT
Arusha (unreported).
(78) 
Derick Alphonce and Another vs Republic, Criminal Appeal No. 23 of 2015
CAT Mbeya (unreported)
(79) 
Deus Josias@Deo vs. Republic Criminal Appeal No.191 of 2018 CAT DSM
(unreported)

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(80) 
Diaka Brama and another vs. Republic, Criminal Appeal No. 211 of 2017 CAT
Dodoma (unreported)
(81) 
Dickson Elia Shapwata vs, Republic, Criminal Appeal No 92 of 2007 CAT
Dodoma (unreported)
(82) 
Director of Public Prosecutins vs Lawretta ani chiomaand 3 others vs
Republic, Criminal Appeal No.540 of 2017 CAT DSM (unreported)
(83) 
Director of Public Prosecution vs ACP Abdallah Zombe 8 Others, Criminal
Appeal No. 358 of 2013, CAT DSM (unreported).
(84) 
Director Of Public Prosecution Vs Julieth Simon Peleka (The Administratrix
of the Estate of the late Gebu Ichoma Sayi, Criminal Appeal No 94 Of 2019
(85) 
Director of Public Prosecution vs Simon G. Marwa and Another [1984]
(86) 
Director of Public Prosecutions v Pirbaksh and 10 others, Criminal Appeal
No.345 of 2017 CAT Tabora (unreported).
(87) 
Director of Public Prosecutions vs Elias Laurent Mkoba and another (1990)
TLR 115 (CA)
(88) 
Director Of Public Prosecutions Vs Jackson Sifael Mtares & 3 Others,
Criminal Application No. 42 Of 2019,
(89) 
Director of Public Prosecutions Vs Mawazo Saliboko @Shagi and 15 Others,
Criminal Appeal No. 384 of 2017 Tabora (unreported).
(90 
Director Of Public Prosecutions Vs Mikula Kindungu, Criminal Appeal No. 47
Of 1989,
(91) 
Director of Public Prosecutions vs Morgan Maliki and another, Criminal
Appeal No.133 of 2013, CAT Tanga (unreported)
(92) 
Director Of Public Prosecutions Vs Nyangeta Somba and Twelve Others
[1993] T.L.R 69
(93) 
Director of Public Prosecutions, vs Ally Abdallah Pashua @ Kipevu Criminal
Appeal No. 191 of 2014, CAT DSM (unreported).
(94) 
DPP vs Ashamu Maulid Hassan and others Criminal Appeal No.37 of 2015
(95) 
DPP vs Bashiri Waziri and Another, Criminal Appeal No. 168 of 2012, CAT
Mwanza(unreported).
(96) 
DPP vs Bookeem Mohamed @ Ally, Criminal Appeal No. 217 of 2019, CAT,
Mwanza (unreported)
(97) 
DPP Vs Harry Msamire Kitilya, Shose Sinare, and Sioi Solomon, Criminal
Appeal No.105/2016 HC at Dar Es Salaam.
(98) 
DPP vs James Msumule Jembe &4 others, Criminal Appeal No.397 of 2018
(99) 
DPP vs James Msumule@Jembe & 4 others, Criminal Appeal No. 397 of 2018
CAT Iringa (unreported)

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(100) DPP vs Joseph Mseti @Super Dingi and 3 Others, Criminal Appeal No. 549 of
2019, CAT, Mwanza, (unreported)
(101) DPP vs Li Ling-ling, Criminal Appeal No. 508 of 2015, CAT DSM (unreported)
(102) DPP vs Mienda Said Miaratu (1978) LRT 64.
(103) Edward Kambuga and Another Vs Republic (1990) TLR 84
(104) Eliah Bariki vs Republic, Criminal Appeal No. 321 of 2016, CAT Arusha
(unreported).
(105) Elias Gervas Versus Republic, Criminal Appeal no, 308 of 2019, Cat at Bukoba
(Unreported)
(106) Elisha Mussa vs Republic Criminal Appeal No.282 of 2016 CAT Dar Es Salaam
(unreported)
(107) Emanuel Asajile and Davida Mayaula vs Republic, Criminal No.507 of 2017,
CAT Mbeya (unreported)
(108) Emanuel Lazaro and two others vs The Republic, Criminal Appeal No. 395 of
2005, CAT at Dar es Salaam (unreported)
(109) Emma Ngwada vs Republic, Criminal Appeal No. 406 Of 2013 Cat At Mbeya
(unreported).
(110) Emmanuel Aloyce Daffa vs Republic, Criminal Appeal No. 131 of 2021, CAT
Tanga (unreported).
(111) Emmanuel Ambrous vs Republic, Criminal Appeal No. 555 of 2017, Court of
Appeal of Tanzania, CAT Arusha(unreported).
(112) Emmanuel Godfrey Masonga vs Edward France Mwalongo and two others,
Misc. Civil Cause No. 6 of 2015, HC Njombe (Unreported).
(113) Emmanuel Lyabonga Vs Republic, Criminal Appeal No. 257 of 2019(unreported)
(114) Emmanuel Mrefu @ Bilinje vs Republic, Criminal Appeal No. 271 OF 2007,
CAT Dodoma (Unreported)
(115) Emmanuel Simforian Massawe vs Republic, Criminal Appeal No. 252 of 2016,
CAT DSM, (unreported).9
(116) Enock Matatala vs. Republic, Criminal Appeal No. 468 of 2019 CAT Iringa
(unreported)
(117) Ernest Jackson @ Mwandikaupesi and Hamza Said Remadhani vs Republic,
Criminal Appeal No. 408 of 2019, CAT DSM (Unreported)
(118) Ex F. 5842 D/C Maduhu vs Director of Public Prosecutions, Criminal
Application No. 46/06 Of 2019, CAT Mbeya (unreported).
(119) Exim Bank (T) Ltd vs Kilimanjaro Coffee Company Limited;- Commercial
Case No. 29 of 2011 (High Court Commercial Division)
(120) Fadhil Yussuf Hamid vs Director of Public Prosecutions, Criminal Appeal
No.129 of 2016 CAT Zanzibar (Unreported).

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(121) Faraji Ally Likenge Versus Republic, Criminal Appeal No 391 of 2016. CAT at
Mtwara, (Unreported)
(122) Farijala Shabani Hussein and Another vs Republic, Criminal Appeal No. 274
Of 2012, DSM (unreported).
(123) Fataheli Manji v. Republic (1966) EA 341
(124) Felix Lucas Kisinyila vs Republic, Criminal appeal no. 129 of 2002 CAT DSM
(unreported).
(125) Filbert Gadson @Posco vs Republic, Criminal Appeal No. 267 of 2019, CAT
Dar es Salaam (unreported)
(126) Filbet Alphonce Machalo vs Republic, Criminal Appeal No.528 of 2016 CAT
Arusha (unreported).
(127) Flano Alphonce Masalu @Singu and fours (4) others vs Republic, Criminal
Appeal No. 366 of 2018, CAT DSM (unreported)
(128) Francis Paul vs Republic Criminal Appeal No.228 of 2019 CAT Arusha
(unreported)
(129) Francis Paul vs Republic, Criminal Appeal No.251 of 2017 CAT Arusha
(unreported).
(130) Frank Julius Ndege vs The Republic, Criminal Appeal No. 359 of 2019, CAT
DSM (unreported)
(131) Frank Kanani vs Republic Criminal Appeal No. 425 of 2018, CAT Bukoba
(unreported).
(132) Fredy Sichembe vs The Republic, Criminal Appeal No. 148 of 2018, CAT
Mbeya (unreported).
(133) Freeman Aikael Mbowe 8 others vs Republic, Misc. Criminal Application No.
126 of 2018, HC DSM (unreported).
(134) Freeman Aikael Mbowe and 7others vs. Republic, Criminal Appeal No. 76 of
2020 (Unreported)
(135) Freeman Aikael Mbowe and Another vs Republic, Criminal Appeal No. 344 of
2018 High Court DSM (unreported)
(136) Furaha Johnson vs The Republic, Criminal Appeal No. 452 of 2015, CAT at
Arusha(unreported)
(137) G.9963 Rafael Paul @ Makongojo vs Republic, Criminal Appeal No. 250 of
2017, CAT Arusha (unreported)
(138) Geoffrey Ntapanya And Another vs Dpp Criminal Appeal No. 232 of 2019
Mbeya (unreported).
(139) Geofrey Kitundu @ Nalogwa and another vs Republic, Criminal Appeal No.
96 of 2018, CAT DSM (Unreported)
(140) Geofrey Sichizya vs D.P.P, Criminal Appeal No. 167 of 2017 CAT Mbeya
(unreported)

75
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(141) George Mwanyingili Versus The Republic Criminal Appeal No. 335 of 2016,
CAT Mbeya (unreported).
(142) George Mwanyingili vs. Republic, Criminal Appeal No. 335 of 2016 CAT Mbeya
(unreported)
(143) George Senga Musa vs. Republic, Criminal Appeal No. 108 of 2018 CAT
Arusha (unreported)
(144) Ghati Mwita vs Republic, Criminal Appeal No. 240 OF 2011, CAT Mwanza
(Unreported)
(145) G
 ift Mariki 2 Other vs Republic, criminal appeal no. 289 of 2015, CAT Arusha
(unreported).
(146) G
 od Saleh @ Shaib Saleh vs Republic, Criminal Appeal No. 469 of 2019, CAT
at Iringa (unreported)
(147) G
 odfrey James vs R (1980) TLR 197

(148) G
 odfrey Richard vs Republic, Criminal Appeal No. 365 of 2008, CAT at
Dodoma (unreported)
(149) G
 odfrey Simon and another vs Republic, Criminal Appeal No.296 of 2018
CAT Arusha (unreported)
(150) G
 odfreyJames Ihuya V.R (1980) TRL 197

(151) G
 odlisten Raymond and Adam Shaban Hole Versus The Republic, Criminal
Appeal No. 363 Of 2014, Tzca At Dodoma (Unreported).
(152) G
 odson Ndobho vs Republic [1993] TLR 287

(153) G
 ozbert Henrico vs the Republic, Criminal Appeal No. 114 of. 2015, CAT at
Bukoba. (unreported)
(154) G
 race Charles Omary vs Republic, Criminal Appeal No 13 of 2020(HC
Musoma Unreported)
(155) G
 wisu Nkonoli and three others, Criminal Appeal No. 359 of 2014, CAT at
Dodoma (unreported)
(156) H
 alfan Mwinshehe versus The Republic, Criminal Appeal no 54 of 2018, CAT
at Dar Es Salaam (Unreported)
(157) H
 alfan Ndubashe vs R, Criminal Appeal No. 493 of 2017 CAT Tabora
(unreported)
(158) H
 alfan Ndubashe vs Republic, Criminal Appeal No. 493 of 2017 CAT Tabora
(unreported)
(159) H
 amis Chuma @ Hando Mhoja vs Republic, criminal appeal no. 36 of 2018,
CAT at Chinyanga (unreported).
(160) H
 amis Meure Vs. Republic, [1993] TLR 213

(161) H
 amis Mohamed Mtou vs Republic, Criminal Appeal No.228 of 2019 CAT
DSM (unreported)

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(162) H
 amis Muhibu Abdallah vs Republic, Criminal Appeal No.288 of
2021(unreported)
(163) H
 amis Rajab Dibagula vs Republic, Criminal Appeal No. 53 of 2001, CAT at
DSM (unreported).
(164) H
 amis Shaban @Hamis (Ustadhi) vs. Republic, Criminal Appeal No. 259 of
2010, CAT Mwanza (unreported)
(165) H
 amisi Juma Chaupepo @Chau vs Republic, Criminal Appeal No. 95 of 2008
CAT DSM (unreported).
(166) H
 amisi Masisi and Six Others vs. Republic [1985] T.L.R. 24

(167) H
 amisi Meure V R [1993] TLR 213

(168) H
 ando Dawido vs The Republic, Criminal Case No. 107 of 2018, CAT
Arusha(unreported)
(169) H
 assan Mashaka and another vs Republic, Criminal Appeal no.324 of 2018
CAT Mbeya (unreported).
(170) H
 assan Said Twalib vs Republic, Criminal Appeal No. 95 of 2019, CAT Mtwara
(unreported)
(171) H
 assani Charles vs Republic Criminal Appeal No. 329 of 2016, CAT Tanga
(unreported).
(172) H
 atari Masharubu @ Babu Ayubu v. R, Criminal Appeal No.590 of 2017, CAT
at Mwanza (Unreported)
(173) H
 atibu Gandhi Versus Republic [1996] T.L.R 12

(174) H
 avyalimana Azaria and two others vs. Republic, Criminal appeal No. 539
2015, CAT, Bukoba(unreported)
(175) H
 ebron Kasigala vs. Republic Criminal Appeal No. 03 of 2020 CAT Kigoma
(unreported)
(176) H
 ekima Madawa Mbunda and another vs The Republic, Criminal Appeal No.
566 of 2019 Cat at Iringa (unreported)
(177) H
 epa John Ibrahim versus The Republic, Crimnal Appeal 105 of 2020, Cat at
Tanga (Unreported)
(178) H
 ilda Innocent vs Republic, Criminal Appeal No.181 of 2017 CAT Bukoba
(unreported)
(179) H
 ussein Idd and Another vs Republic, [1986] TLR 166.

(180) H
 yansit Nchimbi vs Republic, Criminal Appeal No. 109 of 2017, Court of
Appeal of Tanzania,CAT Iringa (unreported),
(181) I n Karori Chogoro vs Waitihache Marengo Civil Appeal No.164 of 2018
pg.9.
(182) I nspector Baraka Hongoli and two (2) others Vs. Republic, Criminal Appeal
No. 238 of 2014, CAT Tabora (Unreported)

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(183) I ssa AthumanI Tojo vs Republic, Criminal Appeal No.37 of 2015, CAT Dar Es
Salaam (unreported.).
(184) Issa Hassan Uki v. Republic, Criminal Appeal No. 129 of 2017, CAT (unreported).
(185) J
 ackson Daudi vs Republic, Criminal Appeal No.111 of 2002 CAT Mwanza
(unreported).
(186) J
 ackson Venant vs Republic, Criminal Appeal No. 118 of 2018 CAT Bukoba
(unreported)
(187) J
 afari Ally Appellant vs Republic Criminal Appeal No. 170 of 2015, CAT DSM
(unreported).
(188) J
 AFARI Salum @Kikoti vs Republic, Criminal Appeal No.370 of 2017 CAT Dar
Es Salaam (unreported)
(189) J
 affray Saidi Mwalimu vs Republic, Criminal Appeal No. 497 of 2019, CAT
Mtwara (unreported)
(190) J
 amal Msombe and another vs Republic, Criminal Appeal No. 28 of 2020,
CAT Iringa (Unreported)
(191) J
 aneroza d/o Petro vs Republic, Criminal Appeal No. 269 of 2016, CAT Tabora
(unreported)
(192) J
 aphet Anael Temba vs Republic, Criminal Appeal No. 78 of 2017 CAT Arusha
(Unreported).
(193) J
 aphet Thadei Msigwa vs Republic, Criminal Appeal No. 367 of 2008
(unreported)
(194) J
 aribu Abdallah v. Republic, Criminal Appeal No. 220 of 1994 [2003] TLR 271.

(195) J
 elada Chuma vs Republic, Criminal Appeal No.114 of 2016 CAT Mbeya
(unreported).
(196) J
 ibril Okash Ahmed vs Republic, Criminal Appeal No. 331 of 2017(unreported)

(197) J
 ilala Justine vs Republic, Criminal Appeal No. 441 of 2017 CAT at Shinyanga
(unreported)
(198) J
 oel Mwangambako vs Republic, Criminal Appeal No. 516 of 2017, CAT
Mbeya (unreported).
(199) J
 ohn Lazaro vs Republic Criminal Application No.1 Of 2018, CAT Bukoba
(unreported).
(200) J
 ohn Madata Versus The Republic, criminal appeal no. 453 of 2017, CAT,
Mbeya (unreported)
(201) J
 oseph Charles Bundala vs Republic, Criminal Appeal No.15 of 2020 CAT
DSM (unreported)
(202) J
 oseph Leonard Manyota vs Republic, Criminal Appeal No. 485 of 2015 CAT
(unreported)
(203) J
 oseph Maganga Mlezi and another Vs Republic, Criminal Appeal No. 536 &

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537, CAT Tabora (unreported).

(204) J
 oseph Mugola Pudha v Republic (1952) EACA 55

(205) J
 oseph Munene and Ally Hassani VS. R Criminal Appeal No. 109 of 2002 CAT
Arusha (unreported).
(206) J
 oseph Stephen Kimaro & Robert Raphael Kimaro vs Republic, Criminal
Appeal No. 340 Of 2015, CAT Arusha (unreported)
(207) J
 osephat James vs Republic, Criminal Appeal No. 316 0f 2010, CAT Arusha
(unreported).
(208) J
 ulius Josephat vs Republic, Criminal Appeal No. 03 of 2017, CAT Arusha
(unreported).
(209) J
 ulius Michael and others Vs Republic, Criminal Appeal No.264 of 2014 CAT
Arusha (unreported)
(210) J
 uma Gulaka and 2 others vs Republic, Criminal Appeal No. 585 of 2017,
CAT, Mwanza(unreported)
(211) J
 uma Makoye Juma vs Republic,Criminal Appeal No.285 of 2016 CAT Tabora
(unreported)
(212) J
 uma Masudi @ Defao vs The Republic, Criminal Appeal No. 52 of 2007, CAT
Tanga(unreported)
(213) J
 umanne Mketo v R [1982] TLR 232

(214) J
 umanne Mohamed and others vs Republic, Criminal Appeal No.534 of 2015
CAT Tabora (unreported)
(215) J
 umanne Mondelo vs Republic, Criminal Appeal No.10 of 2018 CAT DSM
(unreported).
(216) J
 umanne Salum Pazi v Republic, [1981] TLR 246

(217) J
 ustine Masegula vs Republic, [1977] LRT 32

(218) J
 ustine Mtelule vs Republic, Criminal Appeal No.482 of 2016 CAT Iringa
(unreported)
(219) K
 adili Ally vs The Republic, Criminal Appeal No. 99 of 2020, CAT DSM
(unreported)
(220) K
 adiria Said Kimaro vs Republic, Criminal Appeal No. 301 of 2017, CAT
(unreported)
(221) K
 aenge Christopher vs Republic, Criminal Appeal No.187 of 2016 CAT DSM
(unreported).
(222) K
 ali kulwa@nyangaka vs Republic, Criminal Appeal No. 6 of 2019 CAT Mbeya
(unreported)
(223) K
 amundi v Republic, [1953] EA 378

(224) K
 assim Salimu Mnyukwa vs Republic, Criminal Appeal 405 of 2019, CAT
DSM (unreported)

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 Criminal Prosecutions Case Manual

(225) K
 assimu Mohamed Selemani vs. Republic(supra)

(226) K
 assimu Mohamed Selemani vs. Republic, Criminal Appeal No. 157 of 2017
CAT at Mtwara (Unreported).
(227) K
 ennedy Ivan vs The Republic, Criminal Appeal No. 178. Of 2007, CAT at
Mwanza (unreported)
(228) K
 halid Athumani vs Republic (2006) TLR 79,

(229) K
 halid Mohamed Kiwanga and another vs Republic, Criminal Appeal No.
223 of 2019, CAT DSM (Unreported)
(230) K
 hamis Said Bakari vs Republic, Criminal Appeal No. 359 of 2017, CAT DSM
(unreported).
(231) K
 igundu Francis Jackson Mussa vs Republic, Criminal Appeal No.314 of
2010 CAT Mwanza (unreported)
(232) K
 ija Japhet vs Criminal Appeal no, 84 of 2017, CAT. (Unreported).

(233) K
 ileo Bakari Kileo and Four Others vs Republic, Consolidated Criminal
Appeal No. 82 0f 2013 and 330 of 2015, CAT (unreported)
(234) K
 ubezya John Versus Republic, Criminal Appeal No.488 of 2015 CAT Tabora
(unreported).
(235) K
 ulwa Athumani @ Mpunguti, and three others vs Republic, Criminal
Appeal No. 29 of 2005- CAT DSM (unreported)
(236) K
 ulwa Moses v Republic, Criminal Appeal No.491 of 2015 CAT Dodoma
(unreported)
(237) K
 ulwa Nassoro Mohamed vs Republic, Criminal Appeal No. 183 Of 2018,
CAT DSM (unreported).
(238) L
 ameck Bazil and another vs Republic, Criminal Appeal 476 of 2016, CAT
Bukoba (unreported)
(239) L
 aurence Mpinga vs Republic, (1983) TLR 166

(240) L
 aurent Salu and Five Others V Republic, Criminal Appeal No.176 of 1993
(Unreported).
(241) Lawrence Mateso vs Republic [1996] TLR 118
(242) L
 azaro Mpigachai vs Republic, Criminal Appeal No. 75 Of 2018, CAT Mwanza
(unreported).
(243) L
 idumula S/O Luhusa @ Kasuga Versus The Republic, Criminal Appeal No.
352 Of 2020, Cat At Dodoma (Unreported)
(244) L
 ilian Jesus Fortes V. Republic, Criminal Appeal No. 158 of 2018 CAT DSM

(245) L
 oningo Sangau vs Republic, Criminal Appeal No. 396 of 2013, CAT Arusha
(unreported)
(246) M
 aduhu Masele vs Republic [1991] TLR 143

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(247) M
 aduhu Ng’habi & William Julius vs Republic Criminal Appeal No. 556 OF
2016 CAT Shinyanga (unreported)
(248) M
 aduhu Nhandi@Limbu vs Republic, Criminal Appeal No. 419 of 2017 CAT
Mwanza(unreported)
(249) M
 agobo Njige Republic vs. Republic, Criminal Appeal No. 442 of 2017 CAT
Shinyanga (unreported)
(250) M
 agoiga Magutu@Wansima vs Republic, Crimnal Appeal No. 65 of 2015 CAT
Mwanza (unreported)
(251) M
 agoiga Mnanka Vs Republic, Criminal Appeal No. 105 of 1998(unreported).

(252) M
 agumudu Hamisi Chupa @ Mbavu vs Republic, Criminal Appeal No. 287 of
2021, CAT Mtwara (unreported).
(253) M
 aige Nkuba vs Republic, Criminal Appeal No. 551 of 2016, CAT Tabora
(Unreported)
(254) M
 ande Manyanya vs Republic, Criminal Appeal No.55 of 2017 CAT Tabora
(unreported).
(255) M
 anyanda Ncheya vs The Republic, Criminal Appeal No. 437 of 2017, CAT
Shinyanga(unreported)
(256) M
 aramo Slaa Hofu And 3 Others vs Republic, criminal appeal No. 246 of
2011, CAT (unreported)
(257) M
 arceline Koivogui vs Republic Criminal Appeal No.469 of 2017 CAT DSM
(unreported)
(258) M
 aria Paskali vs Republic, Criminal Appeal NO. 18 of 2006, CAT (unreported)

(259) M
 arko Patrick Nzumila and another vs Republic, Criminal Appeal No. 141 of
2010, CAT, (unreported).
(260) M
 arwa Mahende v Republic (1998) TLR 249

(261) M
 arwa Wang’iti Mwita and another v. R [2002] TLR 39

(262) M
 asalu kayeye vs Republic, Criminal Appeal No.120 of 2017 CAT Mwanza
(unreported).
(263) M
 asamba Musiba@ Musiba Masai Masamba vs. R. Criminal Appeal No. 138
of 2019, CAT DSM (unreported).
(264) M
 ashaka Mbezi vs Republic Criminal appeal no. 162 of 2017unreported, CAT
Dodoma (unreported).
(265) M
 ashaka Pastory Paulo Mahengi @ Uhuru and five others vs Republic,
Criminal Appeal No. 49 of 2015, CAT DSM (Unreported).
(266) M
 asumbuko Josedph vs republic, Criminal Appeal No. 218 of 2014, CAT
Mwanza (unreported)
(267) M
 aswed Selemani vs Republic, Criminal Appeal No.189 of 2007, CAT DSM
(unreported)

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(268) M
 atei Joseph vs R [1993] TLR 152

(269) M
 atimo Sagala and another vs Republic, Criminal Appeal No. 7 of 2015, CAT
DSM (unreported)
(270) M
 attaka and Others V. R [1971] E. A 495

(271) M
 aulid Fakhi Mohamed @Mashauri vs Republic, Criminal Application No.
120/7 of 2018, CATMtwara (unreported).
(272) M
 aulid Idmail Ndonde vs Republic, Criminal Appeal No.319 of 2019, CAT
Iringa (unreported) pg.5.
(273) M
 awazo Mohamed Nyoni and two (2) others vs The Republic, Criminal
Appeal No, 184 of 2018 CAT DSM (unreported)
(274) M
 boje Mawe and four others vs Republic, Criminal Appeal No. 86 of 2010,
CAT Tabora (unreported)
(275) M
 edson Manga vs The Republic, Criminal Appeal No. 259 of 2019, CAT at
Iringa(unreported)
(276) M
 elkiad Christopher Manumbu and two others vs Republic, Criminal Appeal
No. 335 of 2015, CAT Mwanza (unreported)
(277) M
 elkizedeki Mkuta vs Republic, Criminal Appeal No. 17 of 2006, CAT
(unreported)
(278) M
 enald Wenela vs The Director of Prosecutions, Criminal Appeal No. 336 of
2018, CAT at Mbeya (Unreported)
(279) M
 gonchori (Bonchori) Mwita Gesune vs Republic, Criminal Appeal No. 410
of 2017 CAT Mwanza (unreported).
(280) M
 hina Mndolwa @ Mhina vs Republic, Criminal Appeal No. 49 of 2007 CAT
Tanga (unreported) pg. 9
(281) M
 ichael Adrian Chaki vs Republic, Criminal Appeal No. 399 of 2019 CAT
DSM (unreported).
(282) M
 ichael Gabriel vs Republic, Criminal Appeal No. 240 of 2017 CAT Arusha
(unreported).
(283) M
 ichael Mgowole and another vs Republic, Criminal Appeal No.205 of 2017
CAT Iringa (unreported).
(284) M
 ichael Mgowole and Shadrack Mgowole vs Republic, Criminal Appeal No
205 of 2017 CAT Iringa (unreported)
(285) M
 irumbe Elias@Mwita Versus The Republic, Criminal Apllication No.04 of
2015, Cat Mwanza (Unrported)
(286) M
 irzai Pirbakhshi @ Hadji and 3 Others versus Republic Criminal Appeal
No. 493 of 2016, CAT DSM (unreported)
(287) M
 ohamed Cladvery vs Republic, Criminal Appeal No.470 of 2017 CAT DSM
(unreported).

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(288) M
 ohamed Hamis @Sakisi vs Republic, Criminal Appeal No.97 of 2008 CAT
Mbeya (unreported).
(289) M
 ohamed Juma @ Mpakama vs Republic, Criminal Appeal No. 385 0f 2017
CAT Mtwara (unreported).
(290) M
 ohamed Katindi Versus Republic [1986] TLR 134,

(291) M
 ohamed Nuru Adamu and six others vs the Republic, Criminal Appeal No.
130 of 2019, CAT DSM (unreported)
(292) M
 ohamed Said Matula [1995] TLR 3.

(293) M
 oses Mwakasindile vs Republic, Criminal Appeal No. 15 of 2017 CAT
(unreported)
(294) M
 pemba Mashenene vs Republic, Criminal Appeal No.557 of 2015 CAT
Mwanza (unreported).
(295) M
 risho Salum v Republic 1991 TLR 158 (HC)

(296) M
 safiri Benjamini Versus The Republic, Criminal Appeal No 549 of 2020, CAT
Dodoma (unreported).
(297) M
 safiri Jumanne &2 others vs Republic, Criminal Appeal No. 187 of 2006
CAT Mwanza (unreported).
(298) M
 sengi Selemani @MC vs Republic, Criminal Appeal No.504 of 2019 CAT
Dodoma (unreported).
(299) M
 uhsin Mfaume vs Republic, criminal appeal no. 99 of 2012, CAT DSM
(unreported).
(300) M
 usa Mohamed vs Republic Criminal Appeal No. 216 Of 2005, CAT Mtwara
(unreported).
(301) M
 usa Mwaikunda vs republic [2006] T.L.R. 387.

(302) M
 usa Ramadhani@Kayumbu Versus The Republic,Criminal appeal No. 487
of 2017, CAT at Dodoma(Unrepprted)
(303) M
 usa Saguda Versus Republic, Criminal Appeal No. 440 of 2017. Cat at
Shinyanga (Unreported)
(304) M
 ussa Sebastian vs Republic, Criminal Appeal No. 406 of 2018, CAT DSM
(unreported)
(305) M
 wale Mwansanu vs Director of Public of Prosecution, Criminal appeal No.
105 of 2018, CAT Mbeya (unreported)
(306) M
 winyi Jamal Kitalamba vs. Republic, Criminal Appeal No. 348 of 2018 CAT
Dodoma (unreported)
(307) M
 wita Joseph Ikoh and Two Others vs Republic, Criminal Appeal No. 60 of
2018, CAT Mwanza (unreported)
(308) N
 athaniel Alphonce Mapunda and Benjamian Alphonce Mapunda V R
[2006] T.L.R. 396

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 Criminal Prosecutions Case Manual

(309) N
 daiyai Petro vs Republic, Criminal Appeal No.277 of 2012 CAT DSM
(unreported).
(310) N
 dugulile Mandago vs Republic, Criminal Appeal No.58 of 2019 CAT Mbeya
(unreported)
(311) N
 emes Myombe Ntalanda vs Republic Criminal Appeal No. 1 of 2019, CAT
Mbeya (unreported)
(312) N
 estor Simchimba vs Republic, Criminal Appeal No.454 of 2017 CAT Mbeya
(Unreported) PG.13.
(313) N
 gasa Sita Mabundu vs Republic, Criminal Appeal No.254 of 2017 CAT
Shinyanga (unreported)
(314) N
 kanga Daudi Nkanga vs Republic, Criminal Appeal No. 316 of 2013 CAT
Mwanza (unreported).
(315) N
 oah Paulo Gonde and another vs Republic, Criminal Appeal No.456 of 2017
CAT Mbeya (unreported)
(316) N
 yakwama On Dare @ Okware vs Republic, Criminal Appeal No. 507 Of
2019, CAT Musoma (unreported).
(317) N
 yerere Nyague vs Republic, Criminal Appeal No.67 of 2010 CAT Arusha
(unreported).
(318) O
 badia Daniel and another vs. Republic Criminal Appeal No. 492 of 2016
CAT Kigoma (unreported)
(319) O
 lonyo Lemuna and Lekitoni Lemuna v Republic [1994] TLR 54 (CA)

(320) O
 mary abdallah@ Mbwangwa vs. Republic, Criminal Appeal No. 127 of 2017
CAT Mtwara (unreported)
(321) O
 mary Athumani@Magari and others vs. Republic, Criminal Appeal No. 173
of 2016 CAT Dar Es Salaam (unreported).
(322) O
 mary Hussein Ludanga and another vs The Republic, Criminal Appeal No.
547 of 2017, CAT at Arusha (unreported)
(323) O
 mary Mohamed China vs Republic, Criminal Appeal No.230 of 2004 CAT
DSM (unreported).
(324) O
 nael Dauson Macha vs Republic, Criminal Appeal No. 214 Of 2007, CAT
Arusha (Unreported)
(325) O
 nesmo Alex Ngimba vs The Republic, Criminal Appeal No. 157 of 2019,
CAT Mbeya(unreported)
(326) P
 ascal Mwinuka Vs Republic, Criminal Appeal NO. 258 of 2019, CAT
Iringa(unreported)
(327) P
 aschal Maganga & another vs R Criminal Appeal No.268 of 2016 CAT
(unreported)
(328) P
 aschal Mwita And 2 Others v R (1993) TLR 295

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(329) P
 atrick Sanga vs Republic, Criminal Appeal No. 213. of 2008, CAT Iringa
(Unreported)
(330) P
 aulo Maduka & 4 Others v. Republic, Criminal Appeal No. 110 of 2007, CAT
(unreported).
(331) P
 eter Ephraim @asambo vs Republic, Criminal Appeal No.386 CAT Mbeya
(unreported)
(332) P
 eter Sagadege Kashuma vs The Republic, Criminal Appeal No. 219 of 2019,
CAT Dar es Salaam(unreported)
(333) P
 opart Emanuel vs Republic, Criminal Appeal No. 200 of 2010 CAT Iringa
(unreported).
(334) R
 . v. Donatus Dominic @ Ishengoma & 6 others, Criminal Appeal No.262 of
2018, CAT Bukoba (Unreported)
(335) R
 . vs Daleyusuf (1967) HCD No. 244.

(336) R
 afael Chagula vs Director Of Public Prosecutions (DPP) Criminal Appeal
No. 307 Of 2019, CAT Mbeya (unreported).
(337) R
 amadhani Abdala @ Namtule vs Republic Criminal Appeal No. 341 of 2019,
CAT Mtwara (unreported).
(338) R
 amadhani Mashaka vs. Republic, Criminal Appeal No. 311 of 2015 CAT
Tabora(unreported)
(339) R
 amadhani Omary Mtiula vs Republic, Criminal Appeal No.62 of 2019, CAT
Iringa (unreported).
(340) R
 ashid George @ Mvungi and another vs Republic, Criminal Appeal No.424
of 2016, CAT at Tanga. (Unreported)
(341) R
 ashid Sarufu vs The Republic, Criminal Appeal No. 467 of 2019, CAT Iringa
(unreported)
(342) R
 aymond Adolf Louis and two others vs Republic, Criminal Appeal No. 120
of 2019, CAT DSM (unreported).
(343) R
 aymond Mwinuka vs Republic, Criminal Appeal No.366 of 2017 CAT Iringa
(unre p
 orted).

(344) R
 emina Omari Abdul vs Republic, Criminal Appeal No. 189 of 2020 CAT DSM
(unreported)
(345) R
 emmy Gerald Sipuka vs Republic, Criminal Appeal No.67 of 2019 CAT
DSM (unreported).
(346) R
 enatus Athanas @Kasongo vs. DPP, Criminal Appeal No. 310 of 2019 CAT
Mbeya (unreported)
(347) R
 epublic v Loibori [1949]16 E.A.C.A. 86

(348) R
 epublic v Nasa Ginners Ltd [1955] 22 EACA 434

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(349) R
 epublic vs Christian Mhapa, Criminal Revision No. 7 of 2017 CAT Iringa
(unreported)
(350) R
 epublic vs Fabian Paul, Criminal Appeal No. 14 of 199, CAT Mbeya
(unreported)
(351) R
 epublic vs Francis Lijenga Criminal Revision No. 3 of 2019 CAT DSM
(unreported)
(352) R
 epublic vs Hsu Chin Tai and 35 Others, Criminal Application No. 2 of 2011,
High Court, DSM (unreported) page 19-20.
(353) R
 epublic vs Ibrat makombe, Criminal Revision No. 6 of 2017 CAT Iringa
(unreported)
(354) R
 epublic vs Msusa Ally [1987] TLR 190

(355) R
 epublic vs. Abdallah Salum @ Haji, Criminal Revision No. 4 of 2019 CAT
DSM (unreported)
(356) R
 epublic vs. Georges Tumpes [1968] H.C.D 416.

(357) R
 epublic, Criminal Appeal No.540 of 2017 CAT DSM (unreported).

(358) R
 everend Ernest K. Mrema vs Alex Mrema 6 Others Criminal Appeal No 387
Of 2017, CAT Arusha (unreported).
(359) R
 ichard Estomihi Kimei And Another vs Republic, Criminal Appeal No. 375
Of 2016. CAT Arusha (unreported).
(360) R
 ichard Otieno @ Gullo vs Republic, Criminal Appeal No. 367 of 2018, CAT
DSM (unreported).
(361) R
 obert Majendo vs Republic, Criminal Appeal No. 428 of 2017, CAT
Mwanza(unreported)
(362) R
 obinson Mwanjisi & 3 others vs Republic (2003) TLR 218

(363) R
 oland Thomas@ Mwangamba vs Republic, Criminal Appeal No. 308 of
2007 CAT Arusha (unreported).
(364) R
 oland Thomas@ Mwangamba vs Republic, Criminal Appeal No. 308 of
2007 CAT Arusha (unreported).
(365) S
 abato Thabit and another vs Republic, Criminal Application No. 17/04 of
2020 CAT Bukoba (unreported).
(366) S
 aid Bakari vs Republic, Criminal Appeal No. 295 Of 2021, CAT Mtwara
(unreported).
(367) S
 alum Rajabu Abdul @Usowambuzi vs Republic, Criminal Appeal NO.219 of
2017 CAT DSM (unreported)
(368) S
 amo Ally Issack & 4 Others Vs Republic, Criminal Appeal No. 136 of
2021(unreported)
(369) S
 amwel Henry Juma VS Republic, Criminal Appeal No. 211 of 2011 CAT DSM
(Unreported).

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(370) S
 ebastian Michael and another vs Republic, Criminal Appeal No. 145 of
2018, CAT Mbeya (unreported)
(371) S
 eif Mohamed El-Abadan vs Republic, Criminal Application No. 8/12 Of 2020,
CAT Tanga (unreported).
(372) S
 eleman Abdallah and two others vs. Republic, Criminal Appeal No. 384 of
2008, CAT DSM (Unreported).
(373) S
 eleman Nassoro Mpeli vs Republic, Criminal Appeal No. 3 of 2018, CAT
DSM (unreported).
(374) S
 eleman Rajabu vs Republic, Criminal Appeal No. 149 of 2013, CAT, Mwanza
(unreported).
(375) S
 elemen Nassoro Mpeli vs Republic, Criminal Appeal No.03 of 2018 CAT
DSM (unreported)
(376) S
 emburi Musa vs Republic, Criminal Appeal No. 236 of 2020 CAT Kigoma
(unreported).
(377) S
 everine Kimatare vs Republic, Criminal Appeal No. 279 of 2006, CAT
Bukoba(unreported)
(378) S
 haban Haruna @ Dr Mwagilo vs Republic, Criminal Appeal No.396B of 2017
CAT Arusha (unreported).
(379) S
 haban haruna@Dr Mwangilo vs Republic, Criminal Appeal No.396B of 2017
CAT Arusha (unreported)
(380) S
 haban Hussein @ Makoba and another vs Republic, Criminal Appeal No.
287 of 2019, CAT Bukoba (unreported)
(381) S
 haban Said Likubu vs Republic, Criminal Appeal No. 228 of 2020, CAT at
Mtwara (unreported)
(382) S
 habani Haruna@Dr. Mwagilo vs Republic, Criminal Appeal No. 396B of
2017 CAT Arusha (unreported)
(383) S
 habani Rulabisa vs Republic, Criminal Appeal No. 88 of 2018 CAT Shinyanga
(unreported).
(384) S
 habani Said Kindamba vs Republic, Criminal Appeal No.390 of 2019, CAT
Mtwara (unreported)
(385) S
 hamir s/o John vs Republic, Criminal Appeal No. 166 of 2004, CAT at
Mwanza (unreported)
(386) S
 hehe Ramadhani @ Idd vs Republic, Criminal Appeal No. 82 of 2020, CAT,
Tanga (unreported)
(387) S
 hehe Ramadhani @ Idd vs Republic, Criminal Appeal No. 82 of 2020, CAT,
Tanga (unreported)
(388) S
 hihobe Seni and Another v. Republic (1992) TLR 330

(389) S
 hija Juma vs Republic, Criminal Appeal No. 383 of 2015, CAT Bukoba
(Unreported).

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(390) S
 hija Luyeko vs Republic [2004] TLR 254 CA

(391) S
 ijali Shabani vs Republic, Criminal Appeal No.538 of 2017 CAT DSM
(unreported)
(392) S
 ilvester Hills Dawi and Another vs DPP, Criminal Appeal No. 250 of 2006,
Court of Appeal of Tanzania, (unreported).
(393) S
 imon Kitalika and others vs Republic, Criminal Appeal No.468 of 2016 CAT
Iringa (unreported)
(394) S
 imon Shauri Awaki @Dawi vs Republic, Criminal Appeal No. 62 of 2020,
CAT Arusha (unreported)
(395) S
 lahi Jumanne Maulid vs Republic, Criminal Appeal No.292 of 2016 CAT
Arusha (unreported).
(396) S
 ong Lei vs Republic and the Director of Public Prosecutions vs Xiao
Shaodan & 2 others, Consolidated Criminal Appeal no. 16 ‘A’ of 2016 & No. 16
of 2017 CAT Mbeya (unreported).
(397) S
 ophia Seif Kingazi vs Republic, Criminal Appeal No.273 of 2016 CAT Arusha
(unreported).
(398) S
 P Christopher Bageni vs Director of Public Prosecutions, Criminal
Application No. 63/01 of 2016, CAT at Dar Es Salaam(unreported)
(399) S
 tanley Murith Mwaura vs Republic, Criminal Appeal No.144 of 2019 CAT
DSM (unreported).
(400) S
 tephen Jonas & another vs Republic, Criminal Appeal No.337 of 2018 CAT
Mbeya (unreported)
(401) S
 umari Hau and four others vs the Republic, Criminal Appeal No. 305 of
2007, CAT Arusha (unreported)
(402) S
 ylvester Fulgence and Vedastus Sylvester vs Republic, Criminal Appeal
No. 507 Of 2016 CAT Tabora (unreported)
(403) T
 afifu Hassan @ Gumbe vs. Republic. Criminal Appeal No. 436 of 2017 CAT
Shinyanga (unreported).
(404) T
 agara Makongoro and two another vs. The Republic, Criminal Appeal No.
126 of 2015, CAT Mwanza (unreported)
(405) T
 he Attorney General vs Dickson Paulo Sanga, Criminal Appeal No.175 of
2020 CAT DSM (unreported).
(406) T
 he Director of Public of Prosecutions vs Christina Biskasevskaja, Criminal
Appeal No. 76 of 2016, CAT Arusha (unreported)
(407) T
 he Director of Public Prosecutions versus Joseph s/o Mseti @ Super
Dingi and three others criminal appeals no. 549 of 2019 (unreported)
(408) T
 he Director Of Public Prosecutions vs Sendi Wambura, Criminal Appeal
No 480 of 2016 CAT Bukoba (unreported).

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(409) T
 he Director of Public Prosecutions vs Doreen John Mlemba, Criminal
Appeal No. 359 of 2019 CAT. DSM (unreported)
(410) T
 he Director of Public Prosecutions vs Philipo Joseph Ntonda, CAT
Zanzibar, (unreported).
(411) T
 he Director of Public Prosecutions vs Shariff Mohamed @Athuman and
six other, Criminal Appeal No. 74 of 2016, CAT Arusha(unreported)
(412) T
 homas Lugumba@ Chacha vs. republic, Criminal Appeal No.400 of 2017
CAT Mwanza (unreported)
(413) T
 izo Makazi vs Republic, Criminal Appeal No. 532 of 2017 CAT Shinyanga
(unreported)
(414) T
 ongeni Naata v R (1991) TLR 59

(415) T
 ongora Wambura vs the Director of Public Prosecutions, Criminal Appeal
No. 212 Of 2006(unreported)
(416) T
 waha Hussein vs. Republic, Criminal Appeal No. 415 of 2017 CAT Mwanza
(unreported)
(417) U
 malo Mussa vs Republic, Criminal Appeal No.150 of 2005 CAT Mwanza
(unreported).
(418) V
 icent Ilomo vs Republic, Criminal Appeal No 337 of 2017 CAT Iringa
(unreported)
(419) V
 uyo Jack vs Director of Public Prosecutions, Criminal Appeal No. 334 of
2016, CAT Mbeya (unreported).
(420) W
 aisiko Ruchere @ Mwita vs The Republic, Criminal Appeal No. 348 of 2013,
CAT Mwanza (unreported)
(421) W
 allii Abbdallah Kibutwa & 2 others v. The Republic, Criminal Appeal No.
127 of 2003, CAT at Dar Es Salaam).
(422) W
 anjiro Waimath V.R (1955) EACA 116

(423) W
 illiam Joseph Mungai vs COSATO David Chumi and two others, Misc.
Civil Cause (Election Petition) No. 8 of 2015, HC Iringa (Unreported)
(424) W
 illiam Kisanga vs The Republic, Criminal Appeal No. 90 of 2017, CAT
(unreported)
(425) W
 illiam Onyango Nganyi @ Dadii 5 Others vs Republic, criminal appeal no.
9 of 2016 CAT DSM (unreported).
(426) Y
 asini Selemani vs Republic [1969] HCD 262

(427) Y
 eremia @ Jonas Tehani vs Republic. Criminal Appeal No. 100 of 2017, CAT
DSM (unreported).
(428) Y
 ohana Mussa Makubi&Another vs Republic, Criminal Appeal No.556 of
2015 CAT (unreported)

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(429) Y
 uda John vs Republic, Criminal Appeal No.238 of 2017 CAT Arusha
(unreported).
(430) Yustine Robert vs Republic, Criminal Appeal No. 329 of 20l7 CAT Mbeya
(unreported).
(431) Yusufu Masalu @ Jiduvi & 3 others vs Republic, Criminal Appeal No 163 of
2017 CAT Dodoma (unreported)
(432) Yusuph Nchira vs Dpp, Criminal Appeal No. 174 of 2007 CAT Arusha
(unreported).
(433) Yusuph Ndaturu Yegera @ Mbunge Hilter vs The Republic, Criminal Appeal
No.195 of 2017, CAT at Tabora (unreported)
(434) Zamir Rahimu vs The Republic, Criminal Appeal No. 418 of 2018, CAT Dar es
Salaam(unreported)
(435) Zebedayo Mtetema vs. Republic, Criminal Appeal No. 484 of 2015 CAT Mbeya

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