Israel Ambele Mwaipaja vs Republic (Criminal Appeal No. 479 of 2023) [2026] TZCA 359 (27 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA fCORAM: KEREFU. J.A.. KAIRO, J.A. And NANGELA, 3.A.) CRIMINAL APPEAL NO. 479 OF 2023 ISRAEL AMBELE MWAIPAJA......................................................APPELLANT VERSUS THE REPUBLIC............................................................. ..... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mbeya) ( Ndunquru. 3 1 Dated the 30th day of May, 2024 In Criminal Appeal No. 179 of 2023 JUDGMENT OF THE COURT 19 February & 27th March, 2026 KAIRO. J.A.: In the Resident Magistrate Court of Songwe Region at Vwawa, the appellant was charged of unnatural offence contrary to sections 154 (1) (a) and (2), of the Penal Code, Cap. 16 (the Penal Code). It was alleged that, on 16th October, 2022 at Saza area, within the District and Region of Songwe, the appellant did have carnal knowledge of a girl aged 13 years against the order of nature. In this judgment, we shall refer to her as the victim or PW1, as she so testified before the trial court for the purposes of concealing her identity. The appellant pleaded not guilty to the allegation and the case went to a full trial. The prosecution evidence that led to the conviction of the appellant was to the effect that, on the fateful day, PW1 (the victim) took some food to her grandfather's home. Unfortunately, she did not find him there at that time and decided to wait for him. While waiting, the appellant appeared and pulled PW1 in the kitchen, undressed her trouser and underpants, then inserted his manhood into her anus. The incidence was witnessed by Johari Mlimbila Kalinga (PW2) who testified that, she was a neighbour to the victim's grandfather and she knew both the victim and the appellant. It was her further testimony that, on the material day, she was around her home and saw the victim sitting at her grandfather's home. Shortly thereafter, she saw the appellant going to the same place. On reaching where the victim sat, the appellant held the victim's hand and took her into the kitchen. Since PW2 was aware that, the victim was mentally abnormal, she became suspicious of the appellant's action and went near the kitchen to see what was going on. Thereat, PW2 saw the legs of the appellant and heard some crying voices. She quickly called other neighbours who also came to witness the incident where they found the appellant sodomizing the victim. PW2 then apprehended the appellant while other neighbours who gathered at the scene were raising an alarm. 2 PW2's testimony was reinforced by Francesca Evarist Saliboko (PW3), the victim's aunt who testified before the trial court that, she had sent the victim to take some food to her grandfather at about 13.00 hrs and went to the funeral. While on the way, she was phoned by one Immaculata Julius Kibona, a neighbour, who asked her to come back quickly due to the problem ensued at her father's home. That, when PW3 went there, she met a group of people on the way taking the appellant to the Police Station at Mkwajuni, accusing him for sodomizing the victim. At the Police Station, a PF3 was issued to enable the victim to go to the hospital for medical examination and treatment. According to prosecution, it was Nsia Raymond Nkya (PW4), a medical doctor who examined the victim and observed that, there were bruises at her anus and sphincter muscles were loose, a sign that, the victim was penetrated by a blunt object in the anus. PW4 filled the PF3 which was later admitted in evidence as exhibit PI. Back to the Police Station, the prosecution evidence further revealed that, No. G.1686 D/CPL Charles (PW5) was the one who recorded the cautioned statement of the appellant into which he admitted to the commission of the offence. The said cautioned statement was admitted in evidence without objection, as exhibit P2. In his defence, the appellant distanced himself from the offence. He admitted that, he was at the scene of crime but delayed to move away from the kitchen he was into, and thus apprehended by the neighbours on allegation that he sodomised the victim. He further admitted to have been taken to the Police Station and recorded his statement. He lamented that, he was not medically examined to prove that he committed the alleged offence. Despite the said defence, the trial court accepted the version of the prosecution's case and the appellant was found guilty, convicted and sentenced to serve 30 years' imprisonment. The appellant was dissatisfied and decided to appeal to the High Court, challenging both the conviction and the sentence meted on him. After its analysis, the first appellate court found the offence to have been proved to the requisite standard. However, it found that, the appellant was charged under the provisions of sections 154 (1) (a) and (2) of the Penal Code which provide for mandatory punishment of life sentence where the victim is under the age of 18 years of age, as it was the situation in the case at hand. The High Court therefore, substituted the sentence of 30 years' jail term meted on the appellant to life imprisonment, by virtual of section 373 (1) (a) of the Criminal Procedures Act, Cap 20 of the Revised Laws (the CPA). The appellant was further aggrieved hence, this second appeal. Initially, the appellant had lodged a memorandum of appeal comprising of four grounds on 30/9/2024. Later, he added one ground having (a), (b), and (c) complaints in the supplementary memorandum of appeal lodged on 18/2/2026. For convenience purposes, the grounds may be summarised as follows: first, that, both lower courts erred when convicted and dismissed the appeal without regard to the defence of the appellant. Second, that, the High Court erred to dismiss the appellant's appeal without regard to the petition of appeal. Third, that, the High Court erred to enhance the sentence imposed by the trial court. Fourth, that, the High Court erred to dismiss the appeal without regard to the Minimum Sentence Act, Chapter 90 of the Revised laws (the MSA). Fifth, that, both the lower courts erred to convict and dismiss the appeal without citing the provision of the law concerned. At the hearing of the appeal, the appellant appeared in person. On the other hand, the respondent Republic was represented by Ms. Rosemary Mgenyi and Mr. Elibariki Mpinga, learned Senior State Attorney and, State Attorney respectively. When invited to amplify the grounds of appeal, the appellant adopted them and opted to let the respondent react to them first but reserved his right to rejoin, if the need to do so would arise. 5 We wish to state from the outset that, we shall determine the grounds of appeal immediately as they are argued. We further wish to state that, generally, the appellant had nothing substantive to re-join after the respondent Republic reacted to the grounds of appeal, apart from beseeching the Court to find his grounds meritorious, allow the appeal and release him from prison. This being a second appeal, the Court is aware with a well- established legal principle that, the Court would not interfere with the concurrent findings of facts of the lower courts unless, they are unsupported by evidence resulting to miscarriage of justice. [See: Director of Public Prosecutions v. Jaffari Mfaume Kawawa (1981) T.L.R. 149, Mussa Mwaikunda v. Republic, (2006) T.L.R. 387 and Salum Mhando v. Republic, [1993] T.L.R. 170]. It is further a settled principle of law that, in sexual offences, unnatural offence inclusive, the best evidence comes from the victim. [See: Selemani Makumba v. Republic (2006) T.L.R. 379, Mohamed Said v. Republic (Criminal Appeal No. 145 of 2017 [2019] TZCA 252 (22 August 2019) TANZLII]. We shall therefore be guided by the above stated legal principles in disposing this appeal. From the outset, Ms. Mgenyi who addressed the Court on behalf of her colleague declared the respondent's stance to oppose the appeal. She 6 further informed the Court that, she will reply the grounds as paraphrased above in the following order: ground No. 2, 3,4, 5 and finalize with ground No. 1. Advancing her submission in respect of the second ground of appeal, Ms. Mgenyi argued that, the complaint that the High Court erred to dismiss the appellant's appeal without regard to the petition of appeal is unmerited. Clarifying, she submitted that, the first appellate court aptly analysed all of the grounds of appeal raised in seriatim and found them wanting in merit. To fortify her submission, she referred us to pages 50 up to 58 of the record of appeal and implored the Court to dismiss the ground for lack of merit. We do not want to belabour in this ground. We go along with Ms. Mgenyi's submission that, the first appellate court analysed the raised grounds in seriatim starting from page 50 of the record of appeal where the grounds raised were listed. The record further reveals that, the High Court started to analyse the said grounds from page 53 and gave its findings at page 58 of the record of appeal by concluding that, the entire appeal lacked merit and consequently dismissed it. We have, times and again, observed in our various decisions that, dismissing an appeal is not synonymous with non-consideration or non-analysis of the petition of appeal, rather it means that, the same was found meritless after analysing/considering it. See: Kelvin s/o Kelvin Nyondo v. Republic, (Criminal Appeal No. 528 of 2021) [2024] TZCA 1255 (11th December, 2024, Kelvin Thobias Mbinile v. Republic, (Criminal Appeal No. 422 of 2023) [2026] TZCA 94 (24 February 2026), Jofrey Yangson Mwashitete v. Republic, (Criminal Appeal No. 918 of 2023) [2026] TZCA 96 (24 February 2026) all from TANZLII) to mention but a few. We thus find no merit in the second ground of appeal and we dismiss it. Addressing the third ground of appeal, the gist of the complaint therein is that, the first appellate court erred to enhance the sentence imposed by the trial court. To buttress his argument, the appellant cited the case of Bernadetha Paul v. Republic, (1992) T.L.R. 97. Ms. Mgenyi rebutted the appellant's argument in the third ground of appeal and contended that, the complaint therein lacked merit. She further submitted that, she went through the case and find it distinguishable as it concerned the appellant who pleaded guilty, but in enhancing the sentence, the High Court did not consider that factor. As a result, the Court ruled out that it was improper to enhance the sentence imposed by the trial court. She beseeched the Court to find the third ground without merit as well. Having carefully considered this ground, we find it misplaced. The record is clear that, the offence the appellant was charged and found 8 guilty with, was unnatural offence contrary to section 154 (1) (a) and (2) of the Penal Code. The provision provides as follows: (1) A person who (a) has carnal knowledge o f any person against the order o f nature; (b) N/A (c) N/A Commits an offence and shall be liable to imprisonment for life and in any case to imprisonment for a term o f not less than thirty years. (2) Where the offence under subsection (1) is committed to a child under the age o f eighteen years the offender shall be sentenced to life imprisonment Deducing from the provisions and considering that, the victim of the offence was a girl of 13 years old (PW4 and exhibit PI), the trial court's sentence of 30 years' imprisonment was inadequate and thus, illegal. The High Court therefore was correct to exercise its powers under the provisions of section 373 (1) (a) of the CPA and enhance the sentence to life imprisonment, which is the mandatory penalty in that respect. On the cited case of Bernadetha Paul v. Republic, we find it distinguishable as correctly submitted by Ms. Mgenyi. This is because, the 9 appellants plea of guilty was not considered by the High Court when enhancing the sentence therein. We therefore find the third ground of appeal unfounded and accordingly, dismiss it. Ms. Mgenyi rebutted the complaint in the fourth ground of appeal to which we join hands with. Indeed, the complaint that the High Court erred for what the appellant alleged disregarding the MSA, is not true. In fact, section 5 (e) of the MSA requires a person convicted of any of the offences falling under the Sexual Offences Special Provision Act, 1998 (SOSPA), to be sentenced as prescribed under the respected offence charged with. The appellant in the case at hand, being charged and convicted for unnatural offence, which is amongst the offences under SOSPA, the proper sentence to be meted on him was life sentence as was correctly enhanced by the High Court. On that account, there is nothing to fault the High Court and we hereby dismiss the fourth ground of appeal for being unmerited. As regards the fifth ground of appeal, Ms. Mgenyi refuted the complaint that, both lower courts erred to convict and dismiss the appeal without citing the provision of the law concerned, thus contrary to section 235 (1) (now section 252) of the CPA. In her clarification, the learned Senior State Attorney submitted that, where conviction states "the accused person is found guilty as 10 charged... "as was the case in the case at hand, (page 33 of the record of appeal), the conviction is referring to the provision under which the accused person was charged with. She therefore beseeched the Court to find the fifth ground baseless. As a conclusion, Ms. Mgenyi prayed the Court to find the appeal unmerited and dismiss it in its entirety. We entirely agree with Ms. Mgenyi's argument that the complaint in the fifth ground of appeal is unfounded. Having scanned page 33 of the record of appeal where the appellant's complaint lies, the trial court stated the following when convicting the appellant: ".../ therefore found the accused person guilty o f the offence o f unnatural offence as charged and I accordingly convict him forthwith "[emphasis added]. It is true that the words "a s charged "referred to the section the appellant was charged with, as correctly argued by Ms. Mgenyi, which was section 154 (1) (a) and (2) of the Penal Code. As such, the complaint in the fifth ground is misconceived. We disregard it. Going back to the first ground of appeal, the appellant faults both lower courts for convicting and later dismissing the appeal without regard to the defence of the appellant. In her response, the learned Senior State Attorney downplayed the stated complaint contending the same to be wanting in merit. Ms. Mgenyi referred us to pages 32 and 57 of the record of appeal which confirm the ii analysis of the appellant's defence by the trial court and the first appellate court respectively and concluded that, the said defence did not cast any doubt in the prosecution case. She thus implored the Court to find the fourth ground baseless. Analysing the complaint, our thorough perusal of the record of appeal revealed that, apart from the general denial, the appellant's defence at the trial court was to the effect that, first, that, he was at the scene of crime but delayed to move away from the kitchen and as a result, he was apprehended by the neighbours claiming that, he committed the offence he was charged with. Second, that, the victim was medically examined but he was not, and thus, the offence was framed against him. It is on record as correctly submitted by the learned Senior State Attorney that, the trial court at page 32 and the High Court at page 57 of the record of appeal dismissed the defence after finding them unmerited and we concur with both lower courts findings. That apart, we find the defence advanced by the appellant wanting in merit and an afterthought for the following reasons: One, it is not a legal requirement to conduct medical examination on the offender of sexual offence to prove the commission of the offence. Two, the appellant has confessed in his cautioned statement (exhibit P2) which was admitted in evidence with no objection, that indeed, he had committed the offence. 12 In fact, the defence that he delayed to move away from the kitchen supports the testimonies of PW1 and PW2 that, the incidence occurred at the kitchen as testified. It is a settled legal stance that, the best witness in any criminal trial is an accused person who freely confess his guilty [See: Halfan Rajabu Mohamed v. Republic (Criminal Appeal No. 281 of 2020) [2023] TZCA 178 (6 April 2023) TANZLII]. Three, considering the settled principle of law that, the best evidence in sexual offences comes from the victim as enunciated in Selemani Makumba v. Republic (supra), the record is clear that, victim mentioned the appellant to be the offender. Fourth, the victim's testimony as regards the offender was corroborated by PW2 who found the appellant in flagrante delicto sodomizing the victim. It is on record that, the said PW1 and PW2 evidence was not controverted by the appellant. It is trite law that, failure to cross examine is taken to be an acceptance to the truth of the testimony given. [See: Bonifance Alistedes v. Republic (Criminal Appeal No 346 of 2016) [2018] TZCA 412 (18 July 2018) TANZLII]. Basing on the above analysis, we find no basis in the first ground of appeal and proceed to dismiss it. In fine, basing on the discussion which we have endeavoured to discuss above, we find the appeal to have no merit. Consequently, we find nothing to make us disturb the concurrent findings of the lower courts. Since the appeal is devoid of merit, it is hereby dismissed in its entirety. DATED at DODOMA this 26th day of March, 2026. R. J. KEREFU JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL D. J. NANGELA JUSTICE OF APPEAL The Judgment delivered this 27thday of March, 2026 via virtual court in the presence of the Appellant in person, Mr. Pastory Machupa, learned State Attorney for the Respondent/Republic and Ms. Christina Mwanandenje Court Clerk is hereby certified as a true copy of the original. 14