Nwaka Amulike Mwakajela vs Republic (Criminal Appeal No. 266 of 2024) [2026] TZCA 358 (27 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA fCORAM: KEREFU. J.A., KAIRO. J.A. And NANGELA. J.A.^ CRIMINAL APPEAL NO. 266 OF 2024 NWAKA AMULIKE MWAKAJELA ............................................. APPELLANT VERSUS THE REPUBLIC .... . ....... . ............................. . ...................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mbeya) ( Nonqwa, 3) Dated the 24th day of October, 2023 In Criminal Appeal No. 73 of 2023 JUDGMENT OF THE COURT 16th February & 26th March, 2026 KAIRO. J.A.: This appeal originates from the decision of the High Court of Tanzania at Mbeya in Criminal Appeal No. 73 of 2023 sitting on appeal from the decision of the District Court of Rung we at Tukuyu, for the offence of rape contrary to sections 130 (1) (2) (e) and 131 (1) of the Penal Code, Cap. 16 of the Revised Laws, (the Penal Code). It was alleged by the prosecution that, on 29/11/2022, during night hours at Masukulu Village within Rungwe District in Mbeya Region, the appellant had unlawful carnal knowledge of a girl aged 15 years. To conceal her true identity, we shall refer to her as the victim or PW2 as she so testified at the trial court. The appellant pleaded not guilty to the charge thus, the case went to a full trial. The prosecution paraded the following witnesses in order to prove its case: Emmanuel Mwashamba (PW1), a social Welfare Officer; the victim (PW2); Pendo Bern Mapunda (PW3), a teacher of Masukulu Secondary School where the victim was schooling; Anna Gibson Namasebo (PW4), the victim's mother; and Zablon Asumwisye Kanyelela (PW5), a Medical Officer who examined the victim. The prosecution further tendered four exhibits to wit: a letter written by the victim to PW3 (exhibit PI); an Attendance Register (exhibit P2); a birth certificate of the victim (exhibit P3) and a PF3 of the victim (exhibit P4). On the other hand, two witness testified on the defence side, namely: the appellant (DW1) and Kisa Salum Mwakalinga (DW2), a wife of the appellant and the step mother of the victim, with no exhibit. Brief facts resulted to this appeal are that: The appellant is a biological father of the victim. The victim who was schooling at Masukulu Secondary School, was staying with the appellant and her step mother (DW2) following the divorce between her father and PW4. It was the prosecution evidence that, on the night in question, DW2 had travelled to Kyela and thus, the appellant took advantage of her absence to fulfil his lust knowing that, the victim will be alone at home. Back at home, the appellant requested for dinner and the victim prepared it for him. While eating, the appellant told the victim to wait for some properties he had bought for her. After finishing taking his dinner, the appellant closed the door, undressed the victim, and inserted his manhood into her female organ. The next day, while at school, the victim reported the incident to her teacher (PW3). PW3 escalated the information to PW1 who subsequently took the victim to the police station and then to Rungwe District Hospital at Makandana for examination where she was examined by PW5. The medical examination report (exhibit P4) revealed that the victim's hymen was perforated, her vagina was swollen, and she was in pain. It was the victim's testimony that, the appellant had earlier raped her on several occasions and that, she had attempted to report the earlier incidents through a letter she wrote to PW3 (exhibit PI), which was acted upon but no medical proof was found since the incidence took place some days back. 3 When testifying, PW4 told the trial court that, the victim was born on 30/6/2008 and tendered a birth certificate to that effect which was admitted in evidence as exhibit P3. In his defence, the appellant gave a general denial and told the trial court that, the case was fabricated due to a long-standing conflict with the victim's mother (PW4) following his decision to re-marry. Further to that, the appellant also claimed not to be in good terms with the victim as he had warned her on her relationship with a certain man. DW2 on her part denied to have never travelled since she got married to the appellant and that, the victim's allegations against the appellant were not true. She added that, it was the victim who was going out clandestinely. At the end of the trial, the trial court was satisfied that, the case was proved beyond reasonable doubt, hence, the appellant was convicted and sentenced to serve 30 years in jail. Unamused, the appellant unsuccessfully lodged his appeal to the High Court challenging both the conviction and the sentence as the appeal was dismissed in its entirety. Still wishing to vindicate his innocence, the appellant has preferred this second appeal to challenge again both the conviction and sentence vide the memorandum of appeal lodged on 19/4/2024 having two grounds of appeal. At the hearing of the appeal, the appellant appeared in person. On the adversary part were Ms. Mwajabu Tengeneza, learned Principal State Attorney who teamed up with Mses. Ellen Masuiuli and Veronica Mtafya, both learned Senior State Attorneys to represent the respondent Republic. When invited to amplify his grounds of appeal, the appellant sought and granted his prayer following a no objection from the respondent Republic, to abandon the lodged memorandum of appeal and replaced it with the following four grounds of appeal which were centred on one major complaint that the case was not proved beyond reasonable doubt: 1) That, PW1 did not mention who called/phoned him to inform that there was a rape incident; 2) That, the prosecution did not state with whom the victim went with at the poiice and at the hospital; 3) That, it was not stated who did PW3 informed about the aiiegations in the letter written to her by the victim on 7/11/2022 considering that, the victim was living with her parents; and 4) That, the medical examination was conducted only to the victim and found that she was raped but the appellant was not examined medically to verify if he was the one who raped the victim. The appellant further informed the Court on his preference to let the respondent Republic react to the grounds of appeal first, but reserved his right to re-join later, if the need to do so would arise. It was Ms. Masululi who addressed the Court on behalf of her colleagues and expressed the respondent's stance to oppose the appeal. Before proceeding with the hearing on merit, we wanted the parties to address us on the propriety of the charge the appellant pleaded to, on account of the fact that, he was charged with rape while the evidence shows that, the appellant committed an incest by male contrary to section 158 (1) (a) of the Penal Code. Ms. Masululi conceded to the flaw but hastened to add that, no prejudice was occasioned to the appellant as he understood the charge he was facing, and accordingly fended for himself against it. She went on to submit that, the establishment of the two offences require the proof of similar ingredients, adding that, even the sentences are the same where any of the offence is proved. She therefore concluded that, the charge was not rendered defective for the said error. To back up her arguments, she cited the case of Chora s/o Samson @ Kiberiti v. Republic (Criminal Appeal No. 516 of 2019) [2021] TZCA 628 (1 November 2021 TANZLII). Being a lay person and the issue under discussion was legal, the appellant had nothing substantial to contribute and decided to leave the issue to the wisdom of the Court. We entirely agree with the learned Senior State Attorney. Indeed, the proper offence the appellant was supposed to be charged with was incest by male contrary to section 158 (1) (a) of the Penal Code. As such, charging the appellant with rape was an error. That notwithstanding however, we are with firm view that, there is no prejudice on the part of the appellant for the following reasons: one, the elements to be proved in both offences are similar; two, both offences attract same penalties if proved; three, the appellant knew the nature of the offence he was charged with and accordingly made his defence. We have given a similar position in our previous case of Chora s/o Samson @ Kiberiti v. Republic (supra), which had an akin fact and we still hold that, the position holds water. On that account, the charge was not rendered defective for the pointed-out flaw. Ms. Masululi reverted to discuss the grounds of appeal commencing with the 1s t ground to the effect that, it was an error for the lower courts to convict him while the prosecution evidence did not mention the person who telephoned PW1 to inform him on the rape incidence. In her response, the learned Senior State Attorney argued that, non-mentioning of the informer has neither removed the fact that the victim was raped, nor has it rendered the offence the appellant was charged with, unproven. Ms. Masululi went on to submit that, the victim had testified that, she had been raped by her father several times and the last time was on 29/11/2022 when she divulged the information on the fresh rape incident to PW3, whom she had earlier on, written a letter to her regarding the previous rape incidents. She referred us to pages 11 to 12 of the record of appeal for verification. It was her further submission that, the divulgence led the incident to be reported to PW1 who took the victim to the hospital for medical examination via the police station where, after examination conducted by PW5, it was confirmed that she was penetrated. The learned Senior State Attorney argued that, the victim's evidence sufficed to ground conviction against the appellant arguing that, the victim explained how she was raped and who was the offender while her age was proved by PW4, the 8 victim's mother. Thus, all the ingredients for the offence were proved. She cited the case of Abraham Idalute @ Ngudu v. Republic, (Criminal Appeal No. 347 of 2017) [2019] 7ZCA 536 (20 August 2019 TANZLII) to fortify her arguments. She beseeched the Court to dismiss the 1st ground of appeal for want of merit. As regards the appellant's complaint in the 2n d ground of appeal that, it is not clear who the victim went with at the police station and at the hospital, Ms. Masululi implored the Court to find it baseless. In her brief response, the learned Senior State Attorney submitted that, it is evident from the record that, upon getting the information of the incidence on 30/11/2022, PW1 came to school and took the victim to the police station and further went with her to the hospital for medical examination. She further submitted that, the testimony was corroborated by PW5, a medical Officer who after examining the victim, confirmed that, she was recently penetrated. She referred us to pages 10, 11 and 25 of the record of appeal for verification. Coming to the 3rd ground, the appellant challenges the prosecution that, it was not stated to whom did PW3 inform the alleged rape incidents stated in the letter dated 7/11/2022 written by the victim to PW3 while the victim was staying with her parents. Responding, Ms. Masululi submitted that, PW3 at pages 11 to 12 of the record of appeal, testified on the steps she took after receiving the letter written to her by the victim (exhibit PI), As to why PW3 did not inform the victim's parents on the allegations contained in the letter, the learned Senior State Attorney submitted that, the victim had requested PW3 not to divulge the said information to her parents for fear of being chased away from home and PW3 obliged. For verification, Ms. Masululi referred us to exhibit PI at page 31 of the record of appeal. She thus implored the Court to find the 3rd ground of appeal, unmerited and dismiss it. As regards the 4th ground, the complaint is to the effect that, the medical examination was conducted only to the victim and found that she was raped but, the appellant was not examined to verify if he was the one who raped the victim. In her response, Ms. Masululi argued that, the medical examination conducted on the victim was for the purpose of determining the existence of penetration. She went on to argue that, there is no legal requirement of conducting a medical examination on the appellant to prove that he is the offender. She argued that, the true evidence in sexual offences comes from the victim as per the case of Selemani Makumba v. Republic, 10 [2006] T.L.R. 379, adding that, in the case at hand, the victim proved that, she was penetrated, which evidence was corroborated by PW5. The victim further mentioned the appellant to be the offender. Concluding, the learned Senior State Attorney prayed the Court to find the 4th ground of appeal without merit as well and dismiss this appeal in its entirety. In his rejoinder, the appellant mainly repeated his complaints in chief. He beseeched the Court to find merit in his complaints, allow the appeal and set him to liberty. Having heard the rival arguments and scanned the record before us, we noted, as alluded to earlier that, all the grounds fronted by the appellant trickles down to answer the issue whether or not the case was proved beyond reasonable doubt. However, before we start determining the said issue, it is imperative to reiterate that, this being a second appeal, normally the Court would not interfere with the concurrent findings of facts of the lower courts unless there were misdirection or non-directions of the evidence, resulting to miscarriage of justice. In such circumstances, the Court is entitled to asses and make a fresh analysis of evidence with a view of making its own findings. [See: Director of Public Prosecutions v. Jaffari Mfaume Kawawa [1981] T.L.R. 149, Paulo s/o Malyanga v. DPP (Criminal Appeal No. 2 of 1986) [1986] TZCA 55 (3 December 1986 TANZLII)] and Salum Mhando v. Republic [1993] T.L.R. 170 It is further a settled principle of law that, in sexual offences, rape inclusive, the best evidence comes from the victim. [See: Selemani Makumba v. Republic (supra)]. We shall be guided by the above stated legal principles in disposing of this appeal. The complaint in the 1s t ground is that, the lower courts erred to convict him while the informer of the incidence to PW1 was not mentioned by the prosecution. In other words, the appellant is questioning the proof of the incidence in the absence of the informer. According to record, the offence the appellant was charged with was statutory rape which requires the prosecution to prove the following three ingredients namely: that, the victim was under age; that, there was penetration; and finally, that the offender was the accused. [See: Yusufu Selemeni Akandu v. Republic, Criminal Appeal No. 623 of 2021 [2024] TZCA 485 (13 June 2024 TANZLII and Abraham Idalute @ Ngudu v. Republic (supra)]. In this case, the fact that the victim was under age was proved by PW4, her mother and exhibit P3. The law is long settled that a parent is among the persons who can prove the age of the victim. [See: Isaya Renatus v. The Republic, (Criminal Appeal No. 542 of 2015) 12 [2016] TZCA (26 April 2016) and Rutoyo Richard v. Republic, (Criminal Appeal No. 114 of 2017) [2020] TZCA 298 (16 June 2020) both from TANZLII]. Regarding penetration, the victim narrated how she was raped by the appellant adding that, the incident had occurred several times before the day when it came to light. This fact was corroborated by PW5 and exhibit P4. As for the perpetrator, again it was the victim who mentioned the appellant and was consistent and firm through-out her testimony at the trial court. Basing on the settled principle in Selemani Makumba v. Republic (supra) and considering that, the victim's credibility was not shaken, we are convinced that, the victim was reliable and spoke nothing but the truth of what transpired as regards the commission of the offence. On that account, non-mentioning of the informer has not rendered the offence unproven as correctly argued by Ms. Masululi. We therefore find out that, the 1s t ground of appeal is baseless and we dismiss it. Coming to the 2n d ground of appeal, we go along with the submission of Ms. Masululi that, the record is clear as regards the persons the victim went with at the police station and at the hospital. Apart from PW1, the record further reveals that, the victim was accompanied by the police and her mother (PW4) (pages 13 and 15 of the record of appeal). 13 That apart, PW5 who received the victim for the medical examination, crowned it all in his testimony on that aspect at page 25 of the record of appeal as he stated: "On 30/11/2023,1 was on duty at the hospital, I entered into the office in the morning at 07:30 hrs. That day I received a patient, a student and they were with a social welfare officer, and police, and the mother of the child and they had a PF3 with them, it was aiieged that she was raped..." [emphasis added]. Looking at the above excerpt, the complaint in the 2n d ground of appeal that, the prosecution did not state with whom the victim went with at the hospital is negated by the record of appeal. We dismiss it. Our observation in the 3rd ground of appeal reveals that, the complaint therein is two folds: one, who did PW3 inform on the allegations contained in exhibit PI and the steps taken therefrom; and two, why the victim's parents she was staying with were not informed on the allegations in exhibit PI. We shall start addressing the second limb of the complaint. It is on record as per exhibit PI that, the victim was complaining about the appellant's acts of raping her on several occasions. She later decided to inform PW3, her teacher so as to get assistance, but pleaded with her not to tell anyone. In fact, the victim was sincere in her letter that, she could not tell her step mother (DW2) for fearing that the information would reach the appellant who could have chased her from home. That apart, reading her view, and rightly so in our conviction, it does not appeal to logic that PW3 would have sought assistance from the wife of the offender or from the offender himself as it would have served no purpose. In our view, it would have been like taking a monkey's case to a baboon. As regards the first limb of the complaint, it is on record that, after receiving the letter (exhibit PI) on 7/11/2022, PW3 took the victim to the Head Teacher and discussed over the issue. They later called No. 116 (gender help desk) to inform them on the incident. The information was relayed to the social welfare officer (PW1) who came and took the victim on 23/11/2022 to the hospital via the police station. However, no evidence of rape was found due to lapse of time since the incidence occurred (page 15 of the record of appeal). When the incidence recurred on 29/11/2022, the victim again reported it to PW3 who informed PW1. It is on record that, PW1 immediately took the victim to the police and to the hospital for medical examination after which, PW5 confirmed that, the victim was 15 recently penetrated and consequently filled the PF3 (exhibit P4) (pages 11 and 25 of the record of appeal). The information on what transpired after PW3 received the letter as above stated was also echoed by the victim and PW1. We therefore find no merit on the complaint in the 3r d ground of appeal and proceed to dismiss it. In the 4th ground of appeal, the appellant complains that, only the victim was medically examined and verified that, she was raped but he was not examined as well to prove if he was the rapist of the victim. To say the least, this complaint is misplaced. As correctly submitted by Ms. Masululi that, the victim is examined to determine whether or not there was penetration and not otherwise. On that account, it is not a legal requirement for the suspect to be examined too. Regarding the offender, the case of Selemani Makumba v. Republic (supra) gives a guidance to the effect that, true evidence in sexual offences, rape inclusive, comes from the victim. As earlier on stated, the victim was firm in her testimony that, it was the appellant who had raped her on several occasions and when the awful acts was unfolded on the fateful day, the appellant's wife (DW2) was on safari and the appellant took an advantage of her absence to quench his abhorring lust. When doing that, the appellant used to cover up her mouth to prevent 16 her from raising an alarm. Following that, the victim immediately reported the incident to PW3 on the following morning which adds to her credence and signifies her reliability [See: Marwa Wangiti Marwa and Another v. Republic (2002) T.L.R. 39]. On top of that, considering that, the victim and the appellant stayed together for quite long time and according to the victim at page 13 of the record of appeal, their house had enough light, coupled with the recurrence of the incidence on several occasions, we can say with certainty that, the appellant was perfectly recognized by the victim to be the offender [see: Chrispin Charles Mwavilundo v. Republic, (Criminal Appeal No. 613 of 2021) [2025] TZCA 133 (28 February 2025 TANZLII). We therefore, find the 4th ground of appeal fail by the wayside as well, and it is dismissed accordingly. We are aware of the appellant's claims when defending himself that, he was not in good terms with PW2 and PW4 and that, the case was fabricated against him. Suffice to state that, we consider the allegations as an afterthought for the appellant's failure to cross examine the witnesses on those claims when testifying. It is a settled principle of law that failure to cross examine on an important matter ordinarily implies the acceptance of the truth of the witness. [See: Peter Paulo v. Republic 17 (Criminal Appeal No. 134 of 2016) [2017] TZCA 326 (14 July 2017 TANZLII). In conclusion, we find no merit on all grounds of appeal as above discussed, rendering the appeal devoid of merit. Accordingly, we dismiss it 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 27th day 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. 18