Patrick Steven Kilanga vs Republic (Criminal Appeal No. 504 of 2024) [2026] TZCA 420 (15 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCORAM: LEVIRA, 3.A., MDEMU. J.A. And ISSA. 3.A.^ CRIMINAL APPEAL NO. 504 OF 2024 PATRICK STEVEN KILANGA..........................................................APPELLANT VERSUS THE REPUBLIC........................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania, at Mwanza) (Item ti& JJ dated the 31st day of January, 2024 in Criminal Appeal No. 76 of 2023 JUDGMENT OF THE COURT 2n d March & 15th April, 2026 LEVIRA, 3.A.: The appellant, Patrick Steven Kilanga was charged, prosecuted and convicted of the offence of grave sexual abuse contrary to section 138C (1) (a) and (2) (b) of the Penal Code, Cap 16 by the District Court of Ilemela at Ilemela. Upon conviction, he was sentenced to 20 years imprisonment. Aggrieved, the appellant unsuccessfully appealed to the High Court; hence, this second appeal. Briefly, it was alleged in the particulars of the offence that, on unknown date of January, 2022 at Kiseke Area within Ilemela District in Mwanza Region, for sexual gratification, the appellant inserted his finger

in the vagina of one RJ or the victim (the name withheld), a girl aged five (5) years old. When the charge was read over to him, the appellant denied it and raised a defence of alibi. As a result, the prosecution paraded four witnesses to prove their case against him. The defence side had four witnesses. It was the prosecution evidence through the victim (PW2) that, she knew the appellant as she used to see him at the shop and he once inserted his finger in her female organ. According to PW2, the appellant took her up to the unfinished house, he set on the bricks, removed her clothes and inserted his finger in her female organ. On arrival at home, PW2 did not tell her mother, one Raiba Hashim (PW1) what had befallen her. She wondered as to why she did not tell her mother on the fateful day until on the day when her mother was washing her and she was feeling pain. Later, she was taken to the Hospital for treatment. In her testimony, PW1 stated that the victim was born on 27th March, 2017 and she was 5 years old. On 13th January, 2022 at around 11:00 hours while washing the victim, she told her that: "Yule kaka wa chini wa mama Kiianga anaitwa Party aliniingiza vidoie huku chini. "PW1 testified further that, the victim was sexually abused on 12thJanuary, 2022 by the appellant. Following that information about the incident, PW1 informed her relative, neighbour, her husband and reported to the Police. 2

The victim was taken to Sekou Toure Hospital on the same day (13th January, 2022). She was received and examined by Dr. Stanley Makundi (PW4). According to PW4, the female organ of the victim was sexually abused by blunt object since the vaginal wall was of reddish colour as there was hyperemic. PW4 filled a PF 3 which was admitted as exhibit PI at the trial. On her part, WP. 3680 D/Cpl Leah (PW3) testified that on 14th January, 2022, she was assigned to investigate this matter and by then, the appellant was under arrest as he was arrested on 13th January, 2022. She inquired the appellant and noticed that, he knew the victim. She went to the scene of crime and was satisfied that the victim was raped. Upon given the appellant's notice of alibi, PW3 testified that, on 13th January, 2022, she took the appellant's statement but he never told her that he was on safari. In re - examination, PW3 stated that the incident took place on 14th January, 2022. Basing on the prosecution case as above, the trial court found the appellant with a case to answer. In his defence, the appellant (DW1) testified that on 13th January, 2022, he was from safari. He began his journey at Bunda around 06:00 hours and arrived at Buruluga at 09:45 hours and went home. Later, at around 15:20 hours, he went to the house of a certain lady called Mama Samia and while still outside that house, he was confronted by five people 3

and they beat him. Thereafter, they sent him to PPF Police Station. Upon arrival, he was told that he was responsible of three offences; to wit, one, seducing the wife of a police officer; two, seducing and showing the pornography pictures to the wife of a police officer; and third, that he raped the child of a police officer. He denied all the offences. Later, the appellant was taken to Kirumba Police Station. On 14th January, 2022, he was taken to Afande Leah (PW3) and recorded his statement. He acknowledged knowing the victim and it was his further testimony that on the incident date mentioned by the mother of the victim (PW1), that is 12th January, 2022, he was not around home as he was on safari. He tendered the bus tickets of 10th January, 2022 and 13th January, 2022 which were admitted as exhibit D1 collectively to show that, he was on safari. According to him, the case was fabricated. He pointed out that, the PF3 (exhibit PI) indicates the name of the mother of the victim as Irene Godbless and not Raiba Hashim (PW1), this, according to him, showed that the charge was not genuine. The appellant's defence of afibi was supported by Muzoe Moses (DW4) who testified that on 10th January, 2022, he travelled with the appellant to Kisorya Village and the appellant travelled back to Mwanza on 13th January, 2022. Another witness who supported the appellant was his elder brother one Noel Stephen Kilanga (DW2). In his testimony DW2 4

stated that, he used to live with the appellant and on 13th January, 2022 the appellant was from safari. He recollected further that, on 13thJanuary, 2022 at around 15:00 hours while he was at the shop where he was working as a shopkeeper, his neighbours passed and informed him that his brother was being beaten by Police Officers. He went to the scene and found the appellant under restraint being accused of raping a certain child. On her part, Theresia Stephen Kilanga (DW3), mother of the appellant testified to the effect that, on 13th January, 2022 at about 15:15 or 15:30 hours, she heard the appellant talking with Mama Samia asking as to whether he could go to her home. Thereafter, he went and after a few minutes, she received the information that the appellant was being beaten. She went up to the Police where the appellant was taken and she was present when the appellant was recording his statement. After closure of the defence case, the trial court, weighed the evidence by both sides and was satisfied that the prosecution proved its case against the appellant to the required standard. Consequently, it convicted and sentenced him as indicated earlier. Dissatisfied, the appellant appealed to the High Court. However, his appeal was not successful as the High Court found that his defence of alibi was an afterthought having been raised after the testimonies of PW1 and PW2. Still protesting his innocence, the appellant has approached the Court 5

armed with eleven grounds of appeal. The main complaint in all the grounds of appeal being that, the charge against him was not proved beyond reasonable doubt. At the hearing of the appeal, the appellant was represented by Mr. Elias Rachuonyo Hezron, learned advocate, whereas the respondent Republic had the services of Ms. Mwanahawa Changale, learned Senior State Attorney assisted by Ms. Matha Mtiti and Mr. John Simon Joss, both learned State Attorneys. Ms. Mtiti supported the appeal right away on ground that, the prosecution did not prove the charge against the appellant beyond reasonable doubt. According to her, the prosecution failed to lead evidence to show that the appellant committed the offence on unknown date of January, 2022. Instead, at page 13 of the record of appeal, PW1 testified that the offence was committed on 12thJanuary, 2022. She added that, even the evidence of PW3 was contradictory as she said, the incident occurred on 14th January, 2022. Ms. Mtiti submitted firmly that, this contradiction goes to the root of the case as it brings variance between the charge and evidence and it also affected the appellant's defence. She added that, the prosecution was required to amend the charge under section 251 of the Criminal Procedure Act, Cap. 20 (the CPA) having seen that variation, but it did not do so.

The learned counsel submitted further that, failure to mention the exact date of the incident in the charge affected the appellant as he was not able to prepare his defence. She did not support the High Court's finding that, the appellant's defence of alibi was an afterthought. According to her, that defence was properly raised. To bolster her argument, she cited the case of Frank Charles @ Sumbuka v. Republic [2024] TZCA 342 (9 May 2024), in which the Court emphasised on the importance of amending the charge in case of variance between the charge and evidence. Failure of which, the charge remains unproved and the accused shall be entitled to acquittal. Finally, Ms. Mtiti urged us to determine the anomaly in favour of the appellant by making a finding that, the charge was not proved beyond reasonable doubt for failure to amend it and allow the appeal. Upon taking the floor, Mr. Hezron concurred with the submission by Ms. Mtiti. He insisted that, the charge against the appellant was not proved beyond reasonable doubt due to the variance between the charge and evidence on when the offence was committed. He indicated that, the prosecution witnesses mentioned 12th , 13th and 14th of January, 2022 to be the dates of incident while the charge stated that it was on unknown date of January, 2022. Failure to amend the charge rendered the case unproved, he added.

Mr. Hezron argued that, had it been that the High Court considered the variation of dates and the defence of alibi, it could have discovered that, the appellant's defence raised a reasonable doubt to the prosecution case. He referred us to page 98 of the record of appeal where the High Court rejected the appellant's defence due to two reasons; to wit, first that, the alibi was raised contrary to section 194 (4) (5) and (6) now section 200 (4) (5) and (6) of the CPA, R. E. 2023 as it was supposed to be raised before prosecution case started. According to him, that decision of the High Court was not proper because section 200 (5) of the CPA allows the notice of aiibi to be filed at any time before closure of prosecution case, which was the case herein. Secondly, he said that, since the charge stated that the offence was committed on unknown date of January, 2022, the appellant could not know the exact date of the incident allegedly he committed the offence until when he heard from PW1 and PW2. Therefore, he insisted, the defence of affbf was not an afterthought as held by the High Court. He thus urged us to find that the charge against the appellant was not proved beyond reasonable doubt, interfere the concurrent findings of the courts below and set free the appellant. Having heard the parties in this appeal and careful gone through the record of appeal, the question as to whether the charge against the appellant was proved beyond reasonable doubt need not detain us much. 8

It is settled principle that, the prosecution is duty bond to prove the case against an accused person beyond reasonable doubt. Failure of which, the benefit of doubt goes to the accused person. Equally, it is settled that, in case of variance between the charge and evidence, the prosecution is required to amend the charge. These principles guide in this decision. Without much ado, we entirely agree with both parties that the prosecution led evidence which indicated dates (12th and 14th January, 2022) of the incident, but the charge was categorical that the offence was committed on unknown date of January, 2022. Although the prosecution mentioned two different dates; we, as well, note that PW2 testified that the offence was committed only once. Equally, we agree with the parties that, under the circumstances, the prosecution ought to have amended the charge to reflect the specific date on which the offence was committed, but there was no amendment. In Frank Charles @ Sumbuka {Supra) cited to us by Ms. Mtiti, the Court stated that, variation on the date on which the offence was committed cannot in any event be treated as minor one. It went on to quote what previously stated in Said Musa Soweni v. Republic [2022] TZCA 218 (22 April 2022) as follows: "The iaw is settled that, a charge which is in materia / conflict with the witnesses' testimonies materially shakes credence o f the prosecution

case and renders the prosecution case not proved to the required standard." In the present appeal, we cannot state better than restating what we stated in the cited cases above. The variation in the dates on when the offence was committed is glaring in the record of appeal, PW1 mentioned 12th January, 2022 and PW3 mentioned 14th January, 2022 to be the dates of the incident while the charge stated that it was on unknown date of January, 2022. The law is settled, when such variation occurs, the charge has to be amended under section 251 of the CPA. It reads: "251-(1) Where, at any stage of a triai, it appears to the court that the charge is defective , either in substance or form, the court may make such order for alteration o f the charge either by way of amendment o f the charge or by substitution or addition o f a new charge as the court thinks necessary to meet the circumstances o f the case unless, having regard to the merits o f the case, the required amendments cannot be made without injustice; and all amendments made under the provisions o f this subsection shall be made upon such terms as the court shall seem ju s t" We have thoroughly perused the record of appeal but we could not find neither an order of the trial court for alteration of the charge by way 10

of amendment nor substitution of a charge as required by the law as cited above. Therefore, since no action was taken to amend the charge to reflect the exact date of the incident, it remained unproved. Before we conclude, we wish also to highlight, as argued by the counsel for the parties that, the law is settled regarding when the defence of aiibic an be raised. It is correct that when all things are equal, the same is supposed to be raised before hearing of the case. However, as said by Mr. Hezron, section 200 (5) of the CPA provides for an exception that it can be raised at any time before the closure of prosecution case; save that, the particulars of alibi have to be stated. For easy refence sub section (5) provides: "(5) Where an accusedperson does not give notice o f his intention to rely on the defence o f alibi before the hearing o f the case, he shall furnish the prosecution with the particulars o f the alibi at any time before the case for the prosecution is dosed." The appellant herein complied with the above requirement of the law as he raised the defence of alibi before closure of prosecution case. Therefore, we find that it was a misdirection on the part of the first appellate Judge to hold that, the appellant's defence of alibi was raised as an afterthought. In fact, it raised an alarm which was a reasonable doubt to the prosecution case as far as the evidence regarding the date l i

of the commission of the offence was concerned, but the trial court and prosecution failed to respond to it by amending the charge. As a result, the case was not proved beyond reasonable doubt as we so find and hold. In the event, we allow the appeal, quash conviction and set aside the appellant's 20 years imprisonment sentence. We order immediate release of the appellant from custody unless otherwise held for other lawful causes. DATED at DODOMA this 30th day of March, 2026. Judgment delivered virtually this 15th day of April, 2026 in the presence of the Appellant in person, Ms. Neema Kibodya, learned State Attorney for the Respondent and Ms. Christina Mwanandenje, Court Clerk; is hereby certified as a true copy of the original. M. C. LEVIRA JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL 12