Idrisa Athuman Naleja vs Republic (Criminal Appeal No. 665 of 2023) [2026] TZCA 353 (26 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA f COR AM: NDIKA. 3.A.. FI KIRIN I, J.A. And ISMAIL. J.A.^ CRIMINAL APPEAL NO. 665 OF 2023 IDRISA ATHUMAN NALEJA ..................... ..... ........ ........APPELLANT VERSUS THE REPUBLIC.................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma) fMahimbali, Dated the 28th day of March, 2023 in Criminal Sessions No. 98 of 2022 JUDGMENT OF THE COURT 12th February & 2&* March 2026 ISMAIL. J.A.: Idrisa Athumani Naleja, the appellant, chose teaching as his inner calling. But his stint into that role was nipped in the bud, thanks to his alleged decision to stay on the wrong side of the law. He is alleged to have carnally known one of his pupils against the order of nature. The victim of the incident was a 14-year-old boy (PW1), a pupil of Kyawazaru Primary School in Butiama District, Mara Region. The alleged incident occurred repetitively between January, 2021 and February, 2022. 1 The Resident Magistrate's Court of Musoma before which he was tried, convicted and sentenced him to life imprisonment. His appeal to the High Court bore no fruits. His appeal to this Court is his last shot in the quest for vindication. The testimony adduced by the prosecution reveals that, at around 18:45 hours on 28th June, 2022, PW2, the Head Teacher at Kyawazaru Primary School, received a tip from a parent of one of the pupils that the appellant was seducing his son with a view to sodomizing him. PW2 shared this information with his second master the latter of whom conducted an inquiry which involved interrogating a section of the pupils, including the victim. A few of them, about three pupils, including PW4, admitted that they faced the brunt of the appellant's predatory indulgences. The appellant flatly refuted the allegation. This prompted the conduct of extensive investigation that factored in the District Commissioner, the District Education Officer, the Divisional Secretary, the Ward Education Officer, police and medical personnel. The findings confirmed that PW4 was one of the boys who had been assaulted by the appellant. In his testimony, PW4 stated that it all started in January, 2021, when the appellant began to seduce him and, in February, 2021, the duo strolled to a bush where the appellant sodomized PW4 after which he gave him TZS. 5,000.00, with a warning that their encounter should remain a tightly kept secret. Four other indulgences followed until the day PW4 divulged it to his friends some of whom confirmed that they had also gone through the same horrible experience. It was at that point in time that the victims decided to escalate the matter to PW2 who took up the issue and commissioned an investigation that unravelled the appellant's alleged involvement. PW1, Sunday Malulu, a medical practitioner from Butiama Hospital, testified on how he was assigned to conduct a medical investigation into the involvement in unnatural sexual indulgence by the pupils from Kyawazaru Primary School. He said that, out of 10 pupils that were sampled for examination, one of them was PW4, a 13-year-old boy at the time. He found that the victim's internal sprinter and external sphincter had loosened. He concluded that this was caused by insertion of male genitalia. The appellant who was put under restraint had his cautioned statement recorded by PW3, WP 9367 D/CPL Jackline, who testified that she interrogated the appellant and confessed to have assaulted PW4. 3 Conclusion of the prosecution case opened the door for the appellant's defence. He outrightly denied the charges levelled against him. He submitted that the charges against him were trumped up for reasons which are best known to the person who fabricated them. In the end, the trial court was more convinced by the testimony adduced by the prosecution. It drew a conclusion that the charges against the appellant had been sufficiently proved. It convicted and sentenced him to life imprisonment. The High Court that sat on appeal gave the trial court's findings a thumbs-up. It concluded that the trial court was quite within its order to dismiss the appeal and uphold the trial court's decision. At the hearing before us, the appellant was self-represented, whereas the respondent enjoyed the services of Ms. Sabina Choghoghwe, learned Senior State Attorney, who teamed up with Mses. Agma Haule, Natujwa Bakari and Mr. Jonas Kivuyo, all learned State Attorneys. The appellant's first memorandum of appeal, instituted on 25th July, 2023, contained nine grounds of appeal. This was followed by two supplementary memoranda of appeal which were filed on 3rd February, 2026 and 12th February, 2026, carrying six and four grounds, 4 respectively. As we were set to commence the hearing, the appellant informed us that he did not wish to pursue grounds of appeal raised on 3r d February, 2026, choosing to focus, instead, on the remaining grounds of appeal the aggregate of which was 13. We have carefully examined the grounds of appeal in both memoranda. What emerges, in our view, is that these grounds distil the following key complaints: 1. Delay to report and arraign the appellant; 2. Qualification of PW1 and fate of exhibit PI; 3. Failure to call material witnesses; 4. Contradictions in the prosecution's evidence; 5. Proof beyond reasonable doubt & credibility of PW1; and 6. Defence not considered. In the first complaint, the appellants misgivings reside in the victim's failure to report the incident and delay in arraigning the appellant subsequent to his arrest and detention. The record of appeal informs that the appellant was arraigned in court vide a charge which was received and admitted on 20th July, 2022. The record further informs that, when PW3 interrogated him on 1s t July, 2022, the appellant was in police custody. What this means is that it 5 took about 20 days for the appellant to have his day in court. This is the dilatoriness that the appellant is jittery about. We agree, that the appellant's 20-day-incarceration was not explained out by any of the witnesses. Needless to say, this prolonged stay in police custody without his arraignment was in contravention of section 33 (1) of the Criminal Procedure Act, Cap. 20 R.E. 2023 (CPA) which requires that an offender who is under police restraint should be arraigned in court within 24 hours of his arrest. Ms. Haule has not come out clean on this, besides submitting to us that this infraction did no harm to the prosecution case. As we remarked, the delayed arraignment is an abhorrent act that should be despised, lest we render the law useless. We, nonetheless, agree with Ms. Haule that the delay did not have any effect to the trial proceedings or the resultant conviction. This trite position has been restated in numerous decisions of this Court. See, for instance, Paulo Machandi v. Republic [2022] TZCA 430, Gabriel Lucas v. Republic [2021] TZCA 703 and Isaya Msofe v. Republic [2020] TZCA 147; Daktari Jumanne v. Republic [2023] TZCA 18020; and Eliapenda Zephania Zakaria @ Kicheche v. Republic [2024] TZCA 728 6 Thus, in Paulo Machandi v. Republic (supra) this Court held as follows: "... the law requires a person detained in custody to be brought before the court as soon as practicable. The question as to how soon is soon depends on the circumstances o f each case and in our considered view, it cannot be answered with certainty in the current case where delay in arraigning the appellant was neither raised during preliminary hearing nor at the trial. We agree with Ms. Mathayo that the appellant's complaint in this ground did not vitiate trial proceedings because the trial was conducted accordingly from the moment he was arraigned." Further emphasis was made in the case of Daktari Jumanne v. Republic (supra). In that case, there was a delay of 17 days in arraigning the accused person. While the Court considered the inordinacy deplorable, it took the position that the same did not have a dent on the trial proceedings. It held: "In the case at hand, the records are silent as to what made the appellant be arraigned about 17 days after he was arrested, despite learned State Attorney's submission that, delay was caused by process o finvestigations o f the offence. We have 7 seriously examined the record o f appeal, it is our finding that, despite delay to arraign the appellant, did not vitiate the trial. Thus, this ground lack m erit " We are of the considered view that this ground lacks the necessary cutting edge to succeed. We dismiss it. Related to the foregoing complaint is the contention that the victim did not name the appellant at the earliest opportunity. The record clearly indicates that the appellant's wrong doing, which started in 2021, was kept under wraps until June, 2022, This is a delay of about one year and this is what the appellant has bewailed over. The argument by Ms. Haule is that PW4's failure to report the incident was due to the lure of money that was offered by the appellant and the appellant's insistence that the victim should not divulge their affair to anybody. She contended that this was a justified cause, referring us to the decision in Wilfred Andisi Mmari v. Republic [2023] T2CA 17666. It behoves us to begin our discussion on this complaint by acknowledging the settled legal proposition that, naming of a suspect at the earliest opportunity ensures reliability and credibility of the victim's account. Contrariwise, failure to do so raises serious doubts about the credibility of the said witness. See: Marwa Wangiti & Another v. 8 Republic [2002] T.LR. 39; and Idrisa Athuman @ Naleja v. Republic [2026] T2CA 128. That notwithstanding, the current jurisprudence is to the effect that, in certain specific circumstances, such delays may be excepted. One of such exceptional circumstances is where threats and intimidation are hurled against the victim or, where the victim is overwhelmed by a feeling of shame and embarrassment for what bedevilled him or her. We underscored this position in Selemani Hassail v. Republic [2022] TZCA 127. In arriving at this position, the Court was inspired by the decision of the Supreme Court of Philippines in the People of the Philippines v. SPOI Arnufo A. Aure and SPOI Marlion H. Fero, G.R. No 180451, October 17, 2008, wherein it was observed as follows: thus: “Delay in repotting an incident o f rape due to death threats and shame does not affect the credibility o f the complainant nor undermine her charge o f rape. The silence o f a rape victim or her faiiure to disclose her misfortune to the authorities without toss o fmaterial time does not prove that her charge is baseless and fabricated. It is a fact that the victim would rather privately bear the ignominy and pain o f such an experience than reveal her shame to the world 9 or risk the rapist’ s making good on his threat to hurt or kiii her ." It is instructive that the reasoning in Selemani Hassan (supra) was given further emphasis in Wilfred Andisai Mmari (supra) referred to us by Ms. Haule. In that decision, the delay to report the incident was excepted, given peculiarity of the circumstances of the case. The Court guided as follows: "Despite the appellant's attempt to dent P W l’ s credibility due to delay in reporting the ordeal, such an attempt is misplaced. As both courts below concurred based on PW1 's evidence, the appellant threatened the victim with termination should he dare telling anyone about the ordeal. Besides, the victim felt shy and unsurprisingly so, disclosing such an awful act to anyone until he was discovered by his brother (PW4) three days later. It was through inquiry that PW1 broke the news whereupon PW4 conveyed the sad news to PW2 who took the victim to the police for reporting the incident before proceeding to the hospital for medical examination. Luckily, this is not the first time the Court is confronted with such a complaint. In Selemani Hassani v. Republic, Criminal Appeal No. 203 o f 2021 10 (unreported) for instance, a similar complaint featured premised on the Court’ s decision in Wangiti Marwa Mwita & Another v. Republic [2003] T.LR. 271 for the proposition that a delay in reporting an incident by a witness dents his credibility. The Court distinguished the application o f that rule in cases involving sexual offences where the victims o f such offences are o f tender age associated with threats." We are of the view that, at the age of 13 years, PW4 was not a person who could process everything in a rational way, especially when he was dealing with his teacher. His belief in the appellant's role as a person who could not be harmful but a benefactor who promised him goodies meant that disclosure would, in his thinking, have consequences which would be undesirable to him. The environment in which PW4 lived was not reassuring enough to enable him spew out what his heart harboured. We take the view, as we did in Idrisa Athuman @ Naleja (supra) that, despite the delays, PW4's testimony was worth of belief and that he did not harbour any ill intention against the appellant. We believe that his testimony was credible and coherent. The appellant's complaint is, in our considered view, devoid of any merit and we dismiss it. li The appellant has bemoaned what he considers as lack of qualification by PW1 to carry out the medical examination the findings of which were reflected in the PF3 (exhibit PI). Ms. Haule has slammed this contention. While referring us to page 12 of the record of appeal, the learned counsel argued that based on the witness's own testimony, he was a qualified medical practitioner. We consider this ground to be underwhelming and unfounded. At page 10 of the record of appeal, PW1 gave his educational background, stating that he is an awardee of a bachelor's degree in medicine. He also provided his roll number and years of experience. Undoubtedly, his credentials are of a superior quality to that of a clinical officer who, in the case of Charles Bode v. Republic [2019] TZCA 70 was considered to be possessed of requisite qualification to perform a medical examination. We do not comprehend as to why he was considered, by the appellant, to be unfit to carry out a medical examination as simple as that of establishing if the victim was molested. We find this ground lacking in merit and we dismiss it. Equally gibberish and related to the foregoing, is the contention that the PF3 was issued while the matter was yet to be reported to police. The testimony of PW3 clears the matter. This witness is a police 12 officer who carried out an investigation of the matter after the incident had been reported to police and appellant had been arrested. PW1 also testified to the effect that, after examining PW3, he filled out exhibit PI. This meant that this document was issued when the matter was reported to police. The appellant has lashed out at the prosecution's failure to procure Gwataku and Kazi who were material witnesses. He has urged us to draw an adverse inference against the prosecution. Ms. Haule does not subscribe to this contention, and we agree. The record informs that Gwataku was a parent whose son, Kazi, was a student who revealed that the appellant was luring pupils into sodomy. Through Kazi and Gwataku, PW2 commenced action that culminated into actions which preceded the appellant's arrest and apprehension. As a matter of law, where a witness carries crucial evidence that addresses an issue of significant importance, such witness must be produced and testify on what he knows about the issue. If this is not done, the court may infer adverse inference on the party who failed to produce the witness - see: Aziz Abdallah v. Republic [1991] T.L.R. 71. The question is whether these two witnesses bore the significant importance in the circumstances of this case. As stated earlier on, these 13 two persons had nothing to add to what PW4 testified on and corroborated by PW1. In Idrisa Athuman @ Naleja v. Republic (supra) the same complaint was raised, touching on the absence of Gwataku who, as is in the instant case, the person who notified PW2 of the happenings in school. Playing down the significance of his testimony, we held as follows: " Consequently, we affirm Mr. Mohamed's assertion that, considering the evidence provided by the six prosecution witnesses, Gwataku was not a momentous witness. We observe no gap in the evidence on record and cannot fathom any value that he would have added had he been summoned and appeared as a prosecution witness. The first complaint is bereft o f m erit" We find the complaint by the appellant unconvincing and we dismiss it. There is yet another disquiet. This relates to the testimony adduced by the prosecution. The argument by the appellant is that serious discrepancies marred the testimony by presenting varying accounts. He singled out the testimony of PW1 who testified that he carried a test of 10 people 8 of whom were found to have been molested. 14 This, he argued, was starkly different from what PW2 testified. The latter stated that the number of pupils sampled for testing was 8. Ms. Haule did not see anything disharmonious in the testimony of the said witnesses or at all. She drew our attention to page 12 of the record of appeal which was to the effect that, only 8 pupils were sodomised. This, she argued, tallied with what PW2 stated at page 13 of the record of appeal. We preface our analysis on this complaint by underscoring the fact that, it is trite law that, discrepancies and inconsistencies in the witness's statement or testimony can only be considered adversely if they are fundamental. If the alleged contradictions are trifling in nature and of no significant effect then the same are ignorable. Thus, in Luziro Sichone v. Republic [2011] TZCA 362, the Court held as follows: " We shall remain alive to the fact that not every discrepancy or inconsistency in witness's evidence is fatal to the case, minor discrepancies on detail or due to lapses o f memory on account o f passages o f time should always be disregarded. It is only fundamental discrepancies going to discredit the witness which count" 15 The issue we need to determine is whether the testimonial accounts of PW1 and PW2 are at variance and contradictory. Our unflustered answer is resoundingly in the negative. Whereas PW1 gave the number of pupils subjected to examination as 10 out of whom 8 were found to have been carnally known, PW2 talked about 8 pupils who PW1 confirmed that they had been sexually abused. These two versions bring about the same conclusion, that 8 pupils faced the brunt of the appellant's alleged wrong doing. But even if we assume - just for the sake of argument - that these witnesses had varying accounts, we entertain no doubt that such variances are in the mould of those that are insignificant and tolerable. It is our considered view that this complaint is equally devoid of merit. The appellant has raised a contention regarding sufficiency of the evidence adduced by the prosecution. He contends that the case for the prosecution was not proved. Ms. Haule has contended that all the ingredients proving the offence have been sufficiently established. It is a canon of evidence that, in criminal cases, guilt of the accused person must be established by the prosecution and that the standard set is beyond reasonable doubt. In cases involving unnatural offences to minors, key ingredients to be established are: penetration, age of the 16 victim, and proof that the perpetrator of the offence is actually the accused person in the dock. In the instant matter, the testimony of PW4, the victim, has established that he was carnally known on five occasions. This testimony has been corroborated by PW1 who examined him and filled exhibit PI which confirmed that PW4 had been affected by the anal-penal sexual intercourse. Further to that, PW4 identified the appellant as the perpetrator of the odious action. By being meticulous in narrating what befell him and recounting all the actions, PW4 was consistent with the settled position which is to the effect that true evidence of commission of sexual offences must come from the prosecutrix or the victim - see: Selemani Makumba v. Republic [2006] T.L.R. 379; and Godi Kasenegala v. Republic [2010] TZCA 355. Once this evidence is tendered, any other testimony, including that of a medical doctor has a corroborative effect. Our assessment of the evidence of PW4 gives nothing except a resounding conviction that PW1 was a witness of truth. He was coherent, credible and withstood the onslaught that came with cross-examination. In our considered view, he proved that he was penetrated and that his tormentor was none other than the appellant. 17 This impeccable account by PW4 allays any fears that the witness was not credible as contended by the appellant. Regarding age of the victim, we are persuaded by his own testimony, at page 18, that he was 14 years of age when he testified, meaning that he was a child of below 18 years of age. We are decidedly of the view that this complaint is also devoid of merit and we dismiss it. Finally, there is also a complaint that the appellant's defence was not considered by the trial court. Ms. Haule does not share this contention and neither do we. Leafing through the record of appeal, we find, at page 48, that the trial Magistrate drew a conclusion that the defence was nothing but an escapist approach which would not displace the testimonial account adduced by the prosecution. We find this ground unfounded as well and we reject it out of hand. A similar complaint was raised by the appellant in his 1s t appeal. This complaint featured as ground 7 of the petition of appeal to the High Court. ITie learned Judge of the 1s t appellate court evaluated the defence and came to the conclusion that, the same did not blur what he considered as the prosecution's strong case against the appellant. 18 We are, therefore, not persuaded by the contention that the defence testimony was given a wide berth. We hold that this complaint is misconceived and we dismiss it. Overall, we find that the entirety of the appeal unmerited and dismiss it. DATED at DODOMA this 26th day of March, 2026. Judgment delivered this 26th day of March, 2026 in the presence of appellant in person- unrepresented, Ms. Martha Mbosoli, learned State Attorney for the Respondent/Republic via virtual Court from Musoma, and Mr. Magesa Fabiane Mgeta, Court Clerk, is hereby certified as a true cor G. A. M. NDIKA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL