Lucas Maina Mhindi vs Republic (Criminal Appeal No. 180 of 2024) [2026] TZCA 411 (14 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM rCO RAM: SEHEI- J.A.. MGONYA, J .A. And KHAMIS, J.A.) CRIMINAL APPEAL NO. 180 OF 2024 LUCAS MAINA MHINDI...................................................... APPELLANT VERSUS THE REPUBLIC ............................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) fMwakareie, 3,1 dated the 17th day of November, 2023 in Criminal Appeal No. 173 of 2023 JUDGMENT OF THE COURT 13t h February, & l4 h April, 2026 MGONYA. 3.A.: The District Court of Kibaha at Kibaha convicted the appellant of the offence of rape contrary to sections 130 (1) (2) (e) and 131 (1) of the Penal Code, Cap. 16 R.E. 2022 and imposed on him a sentence of thirty (30) years' imprisonment. Aggrieved by the conviction and the sentence, the appellant filed an appeal in the High Court, which was dismissed, hence this appeal. At the trial court, the prosecution alleged that: on 16/2/2023, while at Msufini area within Kibaha District in Coast Region, the appellant did

unlawfully have sexual intercourse with the victim, a girl aged 13 years old. He pleaded not guilty to the offence; hence, the matter went to a full trial. The evidence upon which the conviction of the appellant was grounded is not hard to grasp. The appellant and the complainant (hereinafter referred to as the victim or PW5, to protect her identity and privacy) resided in the same household. The victim referred to the appellant's wife as "aunt" (mama mdogo), indicating a familiar relationship. On 16th February 202.3, the appellant's wife travelled to her parents' home in the Mbala Mlandizi area, leaving the victim, the appellant, and a young boy in the house. In the course of that night, while the young boy was asleep, the appellant entered the victim's room, removed her therefrom, and took her to the room where he was sleeping. It is alleged that the appellant then removed the victim's clothing as well as his own, covered her mouth to prevent her from raising an alarm, and proceeded to have carnal knowledge of her without her consent, thereby raping her. The victim did not immediately disclose the incident. She waited until the appellant's wife returned home, at which point she reported the matter to

her. However, her aunt responded by caning the victim and sternly warning her against revealing the incident to anyone else. As a consequence of the incident, the victim felt unable to safely confide further in her aunt She therefore proceeded to the residence of Pili Arufani (PW2) and disclosed that she had been raped by her uncle, whom she customarily addressed as her father, namely Luka Mhindi (the appellant). Upon hearing this serious allegation, PW2 promptly went to the appellant's wife and informed her of the complaint made by the child. The wife, however, rejected the possibility that her husband could have committed such an offence. Upon being informed of the incident, PW2 reported the matter to the Village Chairman, Andrea Cosmas (PW3), stating that PW5 (the victim) had been raped by the appellant, Luka Mhindi. The Chairman thereupon summoned Enock Kafuno (PW4), a police officer, to attend at his residence. On the following day, 20th February, 2023 PW4 proceeded to Msufini area and effected the arrest of the appellant. The victim was subsequently conveyed to Soga Police Station, whereupon the Police issued a Police Form 3 (PF3) authorizing a medical examination. Elinance Maleo (PW1), a clinical officer stationed at Msoga Dispensary, conducted the examination of the victim. In the course of the genital examination,

he noted the complete absence of a hymen. He formed the professional opinion that this finding was consistent with penetration having occurred by means of a blunt object. On the other hand, the appellant, who testified as DW1, categorically denied the commission of the alleged offence. In his defence, he distanced himself from the accusations leveled against him and contended that the victim had been coached on what to state in her testimony. It was his position that such coaching was intended to falsely implicate him in the matter to compel him to vacate the area. As alluded to above, the appellant's appeal to the High Court was fruitless, as the court upheld the trial court's findings as well as the impugned conviction and sentence. Before this Court, the appellant is challenging the first appellate court's decision on five grounds, namely: One, that the preliminary hearing was conducted contrary to section 192(1)(2) of the Criminal Procedure Act, Cap. 20 R. E. 2022 (the CPA) (now section 198 of the CPA R.E. 2023); two, that the trial and first appellate court had no jurisdiction to hear and decide the case; three, that PWl's competence was not established prior to his evidence being admitted; four, that the prosecution's evidence was tainted with

discrepancies; and five, that the prosecution failed to prove its case beyond a reasonable doubt. At the hearing of the appeal, the appellant appeared in person unrepresented, while the respondent Republic was represented by Mr. Baraka Mgaya, learned Senior State Attorney, who informed the Court that the Republic opposed the appeal. When invited to amplify his grounds of appeal, the appellant prayed the Court to consider the grounds of appeal and the written submissions thereof; he had nothing to add. In his written submission, arguing on the first ground of appeal, the appellant challenges the validity of the preliminary hearing proceedings. He contends that the proceedings were a nullity on account of non- compliance with section 198(3) of the CPA. Specifically, he argued that the trial court failed to read over to the appellant the undisputed facts contained in the memorandum, an omission which, in his view, is fatal. In support of this argument, reliance was placed on the decision of the Court in Mohamed Juma v. Republic (Criminal Appeal No. 434 of 2020) [2023] TZCA 17646, where it was held that non-compliance with the provisions of section 198 of the CPA vitiates preliminary hearing proceedings only.

In response, the learned Senior State Attorney submitted that the record of appeal, specifically at pages 9 and 10, clearly establishes that the facts of the case were duly presented in court, read over to the appellant in a comprehensible manner, and that the appellant was afforded the opportunity to, and did in fact, respond to them. He therefore urged this Court to hold that there had been substantial compliance with the relevant procedural requirements under the law, and to dismiss the ground of appeal as being without merit. We have carefully considered the rival submissions, and we deem it appropriate to begin by revisiting the requirements of section 198 (3) of the CPA. The provision obliges the trial court, during a preliminary hearing, to read and explain to the accused person the contents of the memorandum, including the statement of undisputed facts, and to record the accused's response, The purpose of this requirement is to ensure that the accused person is fully aware of the case against him and to facilitate a fair and expeditious trial. See, for instance, Efraam Lutambi v. Republic (Criminal Appeal No. 30 of 1998) [1999] TZCA 115, where the Court held that: "We wish to observe that the provisions o f section 192 o f the Act are very useful in the administration o f criminal justice. They were intended by the

legislature not only to reduce the costs o f criminal trials in the country, but also to ensure that those trials are, without prejudice to the parties, conducted expeditiously." In the instant appeal, we have revisited the record of appeal, particularly the proceedings at pages 9 and 10, as pointed out by the learned State Attorney. The record indicates that the facts of the case were stated to be read and thereafter the appellant was called upon to respond. It is reflected at page 9 of the record of this appeal that the facts of the case were read to the accused person in the language he understood, and he was asked which facts he admitted or disputed. The appellant's response was duly recorded by the trial court. Thereafter, the memorandum of the admitted facts was prepared and signed by both the learned Senior State Attorney and the appellant. In our considered view, this amounts to substantial compliance with the requirements of section 198(3) of the CPA. We are therefore unable to agree with the appellant that there was total non-compliance of the law to render the proceedings a nullity. Thus, the authority of Mohamed Jurna v. Republic (supra) is riot applicable in this case, as the trial court acted in compliance with section 198 (3) of the Act. Accordingly, we find

that the first ground of appeal is devoid of merit, and it is hereby dismissed. Arguing on the second ground, that the lower courts had no jurisdiction to hear and decide the case, the appellant referred us to the High Court's decision in Robert Kadaso Mgeni v. Republic, Criminal Appeal No. 52 of 2.023. He then submitted that the record of this appeal is silent as to when and who assigned Hon. F. L. Kibona to hear and decide the Criminal Case No. 20 of 2023. That, in the absence of the assignment order, the trial and first appellate courts lacked jurisdiction over the case. In his view, that is contrary to the Chief Justice Circular No. 3 of 1993, and the omission is not curable under section 411 of the CPA. Responding to this complaint, Mr. Mgaya submitted that the issue of assignment is an internal exercise. He argued that, if the same is not seen, the appellant was not prejudiced in any way. He thus urged us to dismiss this complaint as it is baseless. We have carefully considered the rival submissions and examined the record of appeal. The issue for our determination is whether the absence of a formal assignment order on the record deprives the trial court of jurisdiction, thereby vitiating the proceedings. At the outset, it is settled law that jurisdiction is the foundation of any judicial proceedings.

Without it, a court cannot lawfully entertain a matter. This principle has been consistently emphasized by this Court in a long line of decisions, including Fanuel Mantiri Ng'unda v. Herman Mantiri Ng'unda & 2 Others [1995] T.L.R. 155 and Hashim Nassoro @ Almas v. Director of Public Prosecutions (Criminal Appeal No, 312 of 2019) [2023] TZCA 17716. In the former, the Court held that: "The question o fjurisdiction for any court is basic, it goes to the very root o f the authority o f the court to adjudicate upon cases o f different nature... The question o f jurisdiction is so fundamental that courts must as a matter o fpractice on the face o f it be aware o f i t " We noted that the appellant's complaint in this ground is not on the jurisdiction of the trial court over the matter, but he is faulting the power of the trial Magistrate, as there is no assignment order reflected in the record of appeal. We are aware of the Chief Justice's Circular No. 3 of 1993 which was referred by the appellant. The said Circular, among other things, provides the duties of the Magistrate Incharge to assign cases to other Magistrates in his station. The Circular intended to streamline the administrative allocation of cases among judicial officers. It is, however, trite that such circulars are administrative in nature and are primarily meant for internal management of the courts.

In the present case, it is not disputed that Hon. F. L. Kibona was a duly appointed Resident Magistrate attached to the court that handled Criminal Case No. 20 of 2023. There is nothing on record to suggest that he lacked competence or authority to preside over criminal matters of that nature. We are persuaded by the respondent's submission that assignment of cases is an internal administrative matter. The omission to reflect such an assignment in the record and in the absence of demonstrable prejudice or miscarriage of justice, we find the complaint lacks merit. The same is hereby dismissed. In regard to ground number three, the appellant submitted that it is trite law that an expert has to establish his or her competency prior to the admission of his or her evidence. To fortify his stance, he cited the Kenyan case of Gatheru s/o Njagwara v. Republic (1954). He further argued that, in the instant appeal, PW1 testified that she worked at Soga Dispensary as a clinical officer and that she studied at Machame College in 2016, and she had five years' experience. The appellant contended that, for a person to qualify as a medical practitioner for the purpose of filling PF3 he or she has to be registered to practice as such under sections 18 and 22 of the Medical, Dental and Allied Health Professionals Act, No. 11 of 2017. He argued that, PW1 did not state to have been registered 10

under such Act, thus the possibility that PW1 did not qualify to fill PF3 and that the findings she made were not true could not be overruled. Premising on his submission, he prayed that the testimony of PW1 be expunged from the court record. According to the appellant, in the absence of the evidence of PW1 and exhibit PEI, the prosecution's case is rendered weak. Responding to this ground, the learned Senior State Attorney at the outset admitted that the record is silent on whether PW1 was a registered doctor. However, he argued that, the absence of that evidence does not remove the fact that she is not a doctor. Mr. Mgaya further argued that, the PF3 was not objected to during the trial. More so, he stated that PWl's testimony was not the sole testimony that was used to convict the appellant. That there was also the victim's evidence, which was explained and written in length by the first appellate court in its judgment. To bolster his argument, he cited the case of Selemani Makumba v. Republic (Criminal Appeal 94 of 1999) [2006] TZCA 96. Mr. Mgaya implored us to dismiss this ground for being unmerited. We have carefully considered the rival submissions, the record of appeal, and the authorities referred to by the parties. The pertinent issue is whether PWl's evidence is admissible. It is settled law that expert ii

evidence is admissible where the witness possesses special skill or knowledge on a particular subject. In Tanzania, this principle has been consistently upheld by this Court, for instance, in Makame Junedi Mwinyi v. Serikali ya Mapinduzi Zanzibar (SMZ) [2000] TLR 455, which was referred to by the Court in Tizo Makazi v. Republic (Criminal Appeal 532 of 2017) [2021] TZCA 437), where it was emphasized that expert evidence is admissible in cases where specialized knowledge is required. In the instant appeal, the record shows that PW1 testified that she is a clinical officer working at Soga Dispensary, that she obtained her training from Machame College in 2016, and that she had five years of working experience. Therefore, for that qualification, PW1 was a qualified person authorized to conduct a medical examination. This stance is supported by our previous decision in Juma Said v. Republic (Criminal Appeal No. 449 of 2017) [2021] TZCA 530, where it was held that: "In the same vein the clinical officer herein is authorized to practice medicine. He was thus competent to examine the victim, which he did and establish that the victim was actually raped". 12

See also Charles Bode v. Republic, Criminal Appeal No. 46 of 2016 and Julius Kandonga v. Republic, Criminal Appeal No. 77 of 2017 (both unreported). We are mindful of the appellant's complaint that PW1 did not state if she was registered to practice as provided under sections 18 and 22 of the Medical, Dental and Allied Health Professionals Act, No. 11 of 2017. With due respect, we find the appellant's complaint is an afterthought, as it is on record that he did not object to her competence at the time she testified, nor did he challenge the admissibility of the PF3 Form when it was tendered in evidence. This Court has, on numerous occasions, deprecated the practice of raising objections on appeal which ought to have been taken during trial. In Emmanuel Lohay & Another v, Republic (Criminal Appeal No. 278 of 2010) [2013] TZCA 292, it was held that it is too late in the day to challenge the statements which were produced and admitted in evidence without objection by the defence. The Court went further to state that; "As a matter o f genera! principle, an appellate court cannot allow matters that were not raised and decided by the court(s) below". 13

Applying the above principles to the present matter, we are of the considered view that the appellant's complaint on whether PW1 was a registered doctor or not was supposed to be raised during the trial to allow the witness to reply to it. Alternatively, the omission by PW1 to expressly state her registration status does not, in the circumstances of this case, render her evidence inadmissible or worthless. More importantly, her evidence was not the sole basis of conviction. The record discloses that the victim gave a detailed and consistent account of the incident, which was duly evaluated by the trial court and the first appellate court. We are therefore satisfied that even if there was an irregularity regarding the proof of PWl's registration, the same did not occasion a miscarriage of justice. The totality of the evidence on record supports the conviction. In the result, we find no merit in ground number three. It is accordingly dismissed. On the fourth ground, the appellant complains that there exists a material discrepancy between the particulars of the charge and the evidence adduced at the trial. While the charge sheet indicates that the offence of rape was committed on 16th February 2023, it is contended that the evidence of PW2, PW3, and PW4 points to 19th February, 2023 as the date of the alleged incident The appellant argues that this inconsistency 14

goes to the root of the case and renders the conviction unsafe. In support of that proposition, he cited the case of Emmanuel Kingamkono v. Republic, Criminal Appeal No. 494 of 2017 (unreported), where it was held that unexplained variances between the charge and the evidence may render a charge defective. On the other hand, the learned State Attorney, Mr. Mgaya, responded that the alleged discrepancy is neither material nor fatal to the prosecution's case. He maintained that PW2, a neighbour to the victim, testified that the incident occurred on 16th February, 2023, which is consistent with the date stated in the charge sheet. He further argued that the reference to 19th February,. 2023 by other witnesses is a minor inconsistency that does not occasion a miscarriage of justice. Having heard the parties, the issue is whether the alleged discrepancy is material and capable of shaking the prosecution's case. We are alive to the facts that not every discrepancy or inconsistency in the prosecution's evidence is fatal. The test is whether such a discrepancy goes to the root of the case or merely relates to peripheral matters. See - Luziro Sichone v. Republic, Criminal Appeal No. 231 of 2010, Said Ally v. Republic, Criminal Appeal No. 249 of 2008, and 15

Dickson Elia Shapwata v. Republic, Criminal Appeal No. 97 of 2007 (all unreported). In the present case, the charge sheet clearly states the date of the offence as 16th February, 2023. This date was also mentioned by PW2 in her testimony. It is reflected on page 16 of the record of this appeal that PW2 told the court that PW5 told her that she was raped on 16th February, 202.3. The same explanation was given by PW2 when she was responding to the appellant's question. That being the facts, we find that there is no discrepancy or inconsistency in the prosecution's case on the date on which the offence was committed. It is on record of this appeal at page 32 that the appellant responded to the question posed to him by the State Attorney during cross- examination that on 16th February, 2023 he was not at his home. This shows that he understood the prosecution's evidence on the exact date when the offence was committed, and he raised the defence of alibi. Consequently, we find the fourth ground of appeal is devoid of merit and is accordingly dismissed. Moving to the last; ground of appeal, the appellant impugns the concurrent findings of the trial court and the first appellate court on the basis that the charge was not proved beyond a reasonable doubt. The 16

appellant advanced three main complaints in that regard. First, that there was a variance as to the date of the commission of the offence, particularly because PW5 did not remember the date. Second, that the competency of PW1 was not established. Third, the conditions for identification were not favorable, as PW5 did not state the intensity of the torchlight, which enabled her to identify the appellant. In support of his submissions, the appellant relied on Maliki George Ngendakumana v. Republic, Criminal Appeal No. 353 of 2014 (unreported) and Juma Hamad v. Republic, Criminal Appeal No. 141 of 2014 (unreported). In reply, the learned State Attorney conceded that PW5 did not state the exact date of the incident, explaining that she had forgotten. However, he contended that PW2, a neighbor, clarified the date of the offence to be 16th February, 2023, and that it was on 19th of February, 2023 the victim reported the incident to her. According to the learned Senior State Attorney, this evidence corroborated the testimony of PW5 and sufficiently placed the occurrence of the offence within the timeframe stated in the charge sheet. He further submitted that, considering the victim's background and the trauma she endured, failure to recall the exact date was not unusual and did not occasion any prejudice to the appellant. 17

On the issue of identification, the learned Senior State Attorney acknowledged that the record does not indicate the duration or intensity of the torchlight. Nevertheless, he argued, by relying on the decision of this Court in Kazimili Mashauri v. Republic (Criminal Appeal No. 252 of 2010) [2012] TZCA 385, that where the victim knew the assailant before the incident, the possibility of mistaken identity is significantly diminished. He urged the Court to consider that the victim knew the appellant before arid the incident occurred in a familiar environment, thus rendering the identification safe. We have anxiously considered the rival submissions, the record of appeal, and the authorities cited by the parties. At the outset, we reiterate the settled principle that, in criminal cases, the burden rests upon the prosecution to prove its case beyond a reasonable doubt. See. Director of Public Prosecutions v. Shishir Shya Msingh (Criminal Appeal 141 of 2021) [2022] TZCA 357, Rahabu Joseph @ Nsemwa v. Republic (Criminal Appeal No. 65 of 2022) [2025] TZCA 686, and Juma Antoni vs Republic (Criminal Appeal 571 of 2020) [2022] TZCA 250. In the latter case it was held that: "..it is a basic principle in criminal law that it is upon the prosecution to prove its case, and it must do so beyond a reasonable doubt" 18

However, proof beyond a reasonable doubt does not mean proof beyond all shadow of doubt. It is sufficient if the evidence adduced establishes the guilt of the accused with such cogency as to leave no reasonable doubt in the mind of the Court. Concerning the complaint on the variance of the date and competency of PW1, we have already addressed those issues when determining the third and fourth grounds of appeal. As we found that there was no discrepancy on the date, the same was properly clarified by PW2. On the complaint regarding identification. It is trite law that evidence of visual identification in criminal cases must be tested with the greatest care, particularly where the conditions for identification are difficult. See for instance, Juma Marwa and Others v. Republic (Criminal Appeal No. 91 of 2006) [2009] TZCA 107, Semeni Komunda & Others v. Republic (Criminal Appeal No. 511 of 2015) [2016] TZCA 675 and Joseph Michael & Another v. Republic (Criminal Appeal No. 213 of 2014) [2015] TZCA 330, where the Court emphasized the need to inquire into the intensity of light, the duration of observation; and the distance between the witness and the accused. 19

In the instant appeal, the record is indeed silent on the intensity and duration of the torch light. Ordinarily, such an omission would be fatal, especially where the identification is that of a stranger. However, this case presents a different scenario. The evidence on record establishes that PW5 knew the appellant before the incident, as he was a husband to her aunt, living together under the same roof. This was therefore a case of recognition rather than mere identification. In the case of Kazimili Mashauri v. Republic (supra), the Court held that where the assailant is well known to the victim, the need for a detailed inquiry into the intensity of light may be less critical, provided the surrounding circumstances support the correctness of the recognition. Applying that principle to the present case, we are satisfied that the conditions obtaining at the time of the incident, coupled with the prior knowledge of the appellant by PW5, the description of his attire, that he wore Maasai clothes, and the familiarity with the environment, rendered the possibility of mistaken identity remote. The evidence of PW5, which was found credible by the trial court and affirmed by the first appellate court, was not shaken in cross-examination. Taking the totality of the evidence on record, we are satisfied that the prosecution proved its case beyond a reasonable doubt. The alleged shortcomings raised by the appellant do 20

not create any reasonable doubt as to his guilt. Consequently, we find no merit in the last ground of appeal. For the above reasons, we find the appeal is devoid of merit. We accordingly dismiss it. DATED at DODOMA this 10th day of April, 2026. B. M. A. SEHEL JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL Judgment delivered this 14th day of April, 202.6 via virtual Court, in the presence of the Appellant'in person, Mr. Barton Mayage, State Attorney for the Respondent/Republic and Ms. Christina Mwanandeje, Court Clerk; is hereby certified as a true copy of the original. 21