Free to Go

Erneo Kidilo and Matatizo Mkenza were caught red handed in September 2013 in the Ruaha National Park with a shotgun, three rounds of ammunition and “government trophies” - kudu and impala.

The facts, as read out by the prosecutor at their subsequent trial in the district court, where that park rangers, while on a routine patrol, saw human footprints.

They followed them and arrested the pair.

They both pleaded guilty to three counts: unlawful entry into the park, possession of the “trophies” and possession of the firearm.

They raised no objection when the State Attorney tendered exhibits including their confessions, a wildlife valuation certificate and an inventory form.

They were convicted as charged and sentenced to a fine and an effective five-year prison sentence.

Despite their pleas of guilty, they were aggrieved at the “excessive” sentences and lodged an appeal with the high court where the sentence was increased to 20 years - albeit now with an option of a fine.

They then lodged a “second appeal”.

In a recent judgment, Chief Justice Ibrahim Hamis Juma (with two judges concurring), said this time Kidilo and Mkenza raised several different objections.

“The senior state attorney opposed this saying they could not raise new matters on appeal,” he said.

The judges agreed with this.

However, the State Attorney raised a “point of law”, which the court had to deal with. And that was that the exhibits had not been read out to them at the initial trial “as the established practice of the court demands”.

While the prosecutor conceded that this could have the effect of expunging them from the record, he argued that the trial record reflected that they had admitted “all facts narrated and exhibits tendered before the court to be true and correct” and so they must have known the facts contained in them.

Judge Juma disagreed.

“Contents of these exhibit detailed facts which affect the ingredients of the charges. Full knowledge of them will enable an accused person to either accept the facts as true, or reject them and change his plea to not guilty.”

After setting aside the convictions and sentences, Judge Juma said the final issue to be determined was whether or not to order a retrial, as urged by the prosecutor.

“One major reason why we think a retrial will not serve the best interests of justice is the incompleteness of the record. We were told by court registry staff the exhibits in question are all

missing from the court file.

“It will not be fair to subject them to a fresh trial. You are free to go,” he said.