Elias Robert @ Ndosi vs Republic (Criminal Appeal No. 89 of 2024) [2026] TZCA 394 (10 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: MWANDAMBO. J.A., MWAMPASHI. J.A. And MLACHA 3.A.1 CRIMINAL APPEAL NO. 89 OF 2024 ELIAS ROBERT @ NDOSI ................................................................ APPELLANT VERSUS THE REPUBLIC............................................. ......................... RESPONDENT (Appeal from the Decision of the High Court of Arusha, at Arusha) f Kinvaka. 3.^ dated the 14th day of November, 2023 in Criminal Appeal No. 59 of 2022 JUDGMENT OF THE COURT 25th Februar/ & 10th April, 2026 MLACHA. 3.A.: The appellant, Elias Robert @ Ndosi, was arraigned at the District Court of Arumeru at Arumeru charged of rape contrary to section 130 (1) (2) (e) and 131 (1) of the Penal Code, Cap. 16 of the Revised Edition 2019. The particulars attached to the charge showed that he had sexual intercourse with one "AG", a girl aged 16 years on 30.11.2021 at Ambureni area within Arumeru District and Arusha Region. He pleaded not guilty but following a trial which involved 4 prosecution witnesses who tendered 3 exhibits and 1 defence witness, he was found guilty, convicted and sentenced to 30 years in jail. His first appeal to the High Court in Criminal Appeal No. 59 of 2023 was dismissed. The evidence upon which the appellant was found guilty and convicted can be presented as follows. Elisiana Zakayo (PW1) sent her daughter "AG" (PW2) to a shop on 30.11.2021 at 3:00 p.m. to buy a voucher and a candle. "AG" who was aged 16 years but was epileptic. While on the way, AG met the appellant who grabbed and sent her to a semifinished house nearby. He lay her on the ground, undressed and had sex with her. AG went back home with some clay soil on her head and back. PW1 observed AG's condition and inquired what could have been the problem. AG told her that she had been raped and led PW1 to the appellant. PW1 took her to the Police Station for a PF3 and then to the hospital for medical examination. Dr. Tufyaine Reuben Mcharo (PW4) who examined AG could not see bruises or blood in the vagina but there were sperms. Based on the finding of sperms in the vagina, he formed an opinion that AG had been penetrated by a blunt object. PC Kalulebe (PW3) who was the investigator of the case visited the scene of crime and drew a sketch map. He also recorded the statements of witnesses. The birth certificate of AG, the sketch map and the PF3 were received during trial as exhibits PI, P2 and P3 respectively. 2 The appellant (DW1) told the trial court that PW1 and PW2 came at home that day and accused him of committing the crime. Based on this accusation, they called one Stanley who assaulted him, his father and young brother. He was later put under arrest and taken to the Police Station accused of raping AG. He distanced himself from the commission of the crime. The trial court was impressed by the evidence of prosecution witnesses and exhibits tendered during the trial. It did not find doubt in the prosecution case. It rejected the defence of the appellant who was found guilty. It convicted and sentenced him as intimated above. The High Court upheld the decision of the District Court, hence the appeal before the Court. The appellant filed a memorandum of appeal with 8 grounds of appeal which boil into one complaint that there was no evidence to prove the case beyond reasonable doubts. The appellant appeared in person at the hearing whereas the respondent Republic was represented by Ms. Janeth Sekule who teamed up with Mr. James Pallangyo, both learned Senior State Attorneys. When the appellant was invited to address the Court on the grounds of appeal, he urged us to consider them and written elaborations filed in terms of rule 74 (1) of the Tanzania Court of Appeal Rules, 2009 and had nothing to add. The elaboration filed by the appellant focused on four areas in a bid to persuade the Court that the offence was not proved to the hilt, that is; One, delay in sending the appellant to court contrary to section 32 (1) of the Criminal Procedure Act (redesignated as section 33 (1) of the CPA). It was submitted that, instead of sending the appellant to court within 24 hours as required by the law, the appellant was sent to court after 3 months i.e., from 30.11.2021 to 28.02.2022 without explanation making the trial which followed illegal. Our decision in Emanuel Saidi v. Republic, [2025] TZCA 844 was cited to support this contention. Two, the fact that AG was epileptic was not properly considered by the lower courts. That, epilepsy affected the mental status of AG which if taken into account by the lower courts, they could not have convicted the appellant. Our decisions in Elisha Edward v. Republic [2021] TZCA 397 and Muhidini Lila @ Emolo and Others v. Republic, [2018] TZCA 269 were cited to support the contention that the evidence of AG being incredible should not have been taken into consideration in convicting the appellant. Three, there was a contradiction between the evidence of AG and the PF3 on the name of the victim of rape. That is, whereas AG gave 4 evidence as Ivon Simon Nyiti, the PF3 had the name Ivon Giliad creating doubt whether the two made reference to the same person. It was also submitted that there was contradiction between the evidence of PW3 and the sketch map but no elaboration was made on it. Reference was made to our decisions in Francis Fabian @ Emmanuel v. Republic [2023] TZCA 1746 and the decision of High Court in Frank Emmanuel Pallangyo v. Republic [2023] TZHC 15376 to support the contention that these contradictions are fatal. Four, the charge was defective because it was not signed by the Magistrate contrary to section 129 (5) of the CPA. It was submitted that the Magistrate was duty bound to sign and stamp the charge. As the charge in this case was not signed and stamped by the Magistrate, the Court was invited to make a finding that it was defective meaning that the proceedings which followed were illegal. Based on these short comings, the Court was urged to vacate the decisions of the lower courts, quash the conviction and set aside the sentence imposed on the appellant. In reply, Mr. Pallangyo admitted that there was a delay to take the appellant to court but argued that it was inevitable given the seriousness of the offence. Making reference to section 33 (1) of the CPA and the evidence of PW3 appearing at pages 11 andl2 of the record of appeal, he 5 contended that the delay was inevitable to allow the police to accomplish the investigation of the case. He contended further that, the delay was discussed by the High Court at page 61 of the record of appeal and found to have no effect in the conduct of the trial. He subscribed to the finding and decision of the High Court. He cited to us our decision in Daktari Jumanne v. Republic [2023] TZCA 18020 to support the contention that the delay in taking an accused to court has no bearing in criminal trials. On the complaint that the victim was epileptic, had an unstable mental condition and thus not credible, the Court was referred to page 31 and 67 of the record of appeal where the matter was discussed by the lower courts and found to be baseless. It was the contention of Mr. Pallangyo that, PW2 was credible because she mentioned the appellant soon after the commission of the crime and took her mother to the place where he could be found. He concluded that the disease did not affect the quality of her evidence. Responding to the complaint that there were contradictions in the evidence, Mr. Pallangyo submitted that, the contradiction between the evidence of AG and the PF3 on the name of the victim was discussed by the High Court at page 64 of the record of appeal and found to be baseless because the appellant pleaded to the charge with the name AG and got the full name of the victim during trial. He contended that, the difference of names contained in the PF3 had no effect on the trial and should be disregarded. The learned Senior State Attorney could not find any contradiction between the evidence of PW3 and exhibit P2 which he found to be complimenting each other. He urged the Court to dismiss the complaint. On the requirement of the Magistrate to sign the charge, Mr. Pallangyo submitted briefly that there is no legal requirement compelling him to do so. He contended that signing the charge is sometimes done by magistrates but that is a mere practice failure of which does not make the conviction of the appellant illegal. In conclusion, Mr. Pallangyo submitted that, the offence was proved beyond reasonable doubt because there was proof of all the ingredients of the offence of statutory rape; proof of age, penetration and identity of the culprit. He submitted that age of the victim was proved by PW1, PW2 and the birth certificate (exhibit PI) while penetration was proved by PW2 and PW4 and identify of the appellant was proved by PW2. He urged the Court to dismiss the appeal. We had time to examine the record of appeal and consider the submissions of the parties. We wish to start by pointing out that, in a second appeal like this, the Court is not expected to interfere with the concurrent findings of facts of the lower courts unless it is satisfied that they were based on a disregard of an established principle or rule of practice; misapprehension of evidence; omission to consider available evidence; misapprehension of applicable law and/or misdirection or none directions on the evidence. We can also interfere on being convinced that the appellants were not given a fair hearing by the courts below. See our decisions in Emilian Aidani Fungo @ Alex & Another V.R [2009] TZCA 135 and Samwel Daud & Mwita Matiko V. Republic [2011] TZCA 293. We will be guided by this principle in our deliberation of the issues arising from this appeal where applicable. We will start with the complaint that there was a delay in taking the appellant to court. This issue was raised in the High Court and dismissed. The Judge had the view that whether there is a delay or not depends on the circumstances of each case and found the delay to be a minor issue which could not vitiate the proceedings and decision of the District Court. The Court has, in a number of its previous decisions, already pronounced itself on issues regarding delay in arraigning accused persons. See our decision in Eliapenda Zephania Zakaria @ Kicheche v. Republic [2024] TZCA 728, Daktari Jumanne v. Republic [2023] TZCA 18020 and Omary Amanzi vs Republic [2024] TZCA 1240 to mention but a few. In Eliapenda Zephania Zakaria @ Kicheche (supra) the Court while making reference to its earlier decisions, had this to say: "Guided by the above position o f the iaw, we find that the delay in arraigning the appellant in the instant case , did not vitiate the tria l and the resultant conviction. It is also our considered view that the com plaint o f delay in arraignm ent o f the appellant raised a t this stage, is misplaced. We have no m aterial facts to deal with such a complaint. The com plaint ought to have been raised before the tria l court which was in a better position to investigate it It was even not raised before the High Court. I t is a lso o u r co n sid e re d vie w th a t, d e la y in a rra ig n in g an a ccu se d p erson , if e sta b lish e d , m ig h t co n stitu te a cause in a cla im o f dam ages fo r cu rta ilm e n t o f p e rso n a l lib e rty b u t n o t fo r th e sam e to b e ra ise d a s a g ro u n d o f a p p e a l in in v a lid a tin g th e tr ia l." [Emphasis supplied] The import of the above excerpt is that, a delay in taking an accused to court cannot invalidate the conviction of an accused person which is based on the evidence adduced before the court for which he had a chance to participate fully. It cannot be used as a ground of appeal to 9 challenge the conviction in a criminal trial. At most, where proved, it can be used in a claim for damages for curtailment of personal liberty. That considered, like the High Court, we find no merit in the complaint and we dismiss it. Next is the complaint that the evidence of PW2 ought to be disregarded because she was epileptic. We have revisited the evidence of PW2 and the findings of the lower courts carefully. The lower courts were informed that AG was epileptic and had concurrent finding of fact that, despite the fact that PW2 was epileptic, she knew what was done to her and the one who did it. Taking into account that AG returned home immediately after being raped and disclosed what was done to her and took her mother to the appellant pointing a finger at him, the lower courts did not doubt the mental status of AG on the material day and time. We agree with this finding of facts. Going by the evidence on record, there is no indication that AG had an attack on that day. It is thus obvious that she was in her normal condition and lived just like any other person. We thus find no cause to interfere with the concurrent finding of fact of the lower courts in this area. We find the complaint baseless and dismiss it. We will now move to the complaint on contradiction in the evidence. Having examined the record and considered the submission of the parties, 10 we agree with the parties that the name of the victim recorded at page 8 of the record differs with what is recorded in the PF3 appearing at page 26. Whereas she said that her name was Ivon Simon N yiti at page 8 of the record of appeal, the PF3 at page 26 carry the name Ivone Giliard. The High Court discussed the difference at page 64 of the record of appeal and found the name Ivone Giliard as a typing error which did not affect the appellant or prejudice the trial. It held this view bearing in mind that the name of the father of the victim in the birth certificate, exhibit PI, appearing at page 23 of the record of appeal is Giliadi Simon Nyiti which had had a similarity with what was said by PW2 and what is contained in the PF3. It was thus concluded that calling the victim Ivone Giliardi was not fatal because Giliadi was her father's name. We agree with the evaluation of evidence of the High Court in this area. On the other hand, like the learned Senior State Attorney, we could not find any contradiction in the evidence of PW3 and exhibit P2 which complemented each other. We are saying they are complementing each other because PW3 said he drew the map on 05.12.2021 a date indicated in exhibit P2 which also shows that it was drawn by PW3. The complaint is thus baseless and dismissed. Finally, we will move to the complaint that the charge was defective because it had no signature of the Magistrate. We think this issue should ii not detain us. We agree with Mr. Pallangyo that there is no legal requirement imposed on a Magistrate to sign the charge consistent with decision in Elias Jonas v. Republic [2026] TZCA 331 where we stated as follows: "We agree with the learned Senior State Attorney that th e re is no le g a l p ro v isio n w hich re q u ire d th e M a g istra te to sig n a n d fix a stam p o f th e c o u rt on a ch arg e p re se n te d to him . H e can o n ly do so in circu m sta n ce s fa llin g u n d er se ctio n 129 (4 ) a n d (5 ) o f th e C rim in a l P ro ced u re A c t (th e C PA ) w here he re ce iv e s a co m p la in t a n d d ra w s th e ch arge h im se lf. This is rare nowadays where prosecution is regulated by the DPP with prosecuting attorneys at a il levels. But in a situation falling under section 129 (6) o f the CPA where a charge is presented by the public prosecutor, the one who is duty bound to sign on it is the public prosecutor. The m agistrate can make an endorsement adm inistratively that he has received it but is not legally bound to do so. See Ju stin e B a ru ti Z o rto s v The D ire cto r o f P u b lic P ro se cu tio n s (D P P ) [2023] TZCA 17736. The signing and stam ping a charge is thus a mere practice failure which does not render the charge defective." [Emphasis supplied] The Complaint is thus baseless and we dismiss it. 12 That said, the appeal is found to be devoid of merit and is hereby dismissed. DATED at DODOMA this 2n d day of April, 2026. L. J. S. MWANDAMBO JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered via virtual Court this 10th day of April, 2026 in the presence of the Appellant who appeared in person, Mr. Stanslaus Halawe, learned State Attorney for the Respondent/Republic and Fahmi Karemwa Court Clerk, is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 13