Kelvin Lembris Ongwelenya @ Jack vs Republic (Criminal Appeal No. 70 of 2024) [2026] TZCA 346 (25 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: MWANPAMBO. J.A.. MWAMPASHI. J.A. And MLACHA. J.A.^ CRIMINAL APPEAL NO. 70 OF 2024 KELVIN LEMBRIS ©NGWELENYA @JACK . ..................... . ........... APPELLANT VERSUS THE REPUBLIC........................................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Arusha) (Mwaseba. 3.^ dated the 8th day of September, 2023 in Criminal Appeal No. 32 of 2023 JUDGMENT OF THE COURT 26th Feb & 25th March, 2026 MWANPAMBO, J.A.: The District Court of Arumeru at Arumeru convicted the appellant on a charge in relation to unnatural offence involving a boy aged five years and sentenced him to life imprisonment. His appeal before the High Court at Arusha was dismissed for lack of merit, hence the instant appeal before the Court. Briefly, the facts which triggered the institution of the case and ultimately the conviction and sentence, are as follows. On the evening of i

30 October 2021, a young boy aged 5 years went missing from home. Earlier on, his mother staying at Ilboru had sent him to his sister for some food stuff but took too long to return home. That prompted her mother to search for the boy from the neighboring houses but to no avail before she returned home. Luckily, as the mother (PW1) went in search of her child for the second time, she met a young girl going by the name of Happiness Edward who was familiar to her and the boy, informed her that she had seen the appellant with the boy at 06.00 p.m. heading to a banana plantation and overheard the appellant promising the boy to give him some banana. It turned out that PW1 was familiar with the appellant as an employee of Lodrick whose house was allegedly in the neighborhood . PWl's first visit to Lodrick's house did not bear fruit but succeeded during the second one. With the assistance of one Boni; Lodrick's son, they discovered the victim beside the appellant's bed room naked, barefooted and his body full of dust. Upon inspection in the presence of other people who responded to her cry for help, the victim's anus was found with mucus. It was upon that moment that the victim disclosed to PW1 that the appellant had sodomised him in the banana plantation where he allegedly lured to give him banana. Subsequently, PW1 took the victim to the police where a PF3 was obtained and later to Mount Meru Hospital 2

where, Doctor Antipus Ngowi (PW4) examined him the following day and concluded that he had been sodomised judged by reddishness, bruises in the anus with relaxed sphincter muscles. From the above background, the prosecution preferred a charge against the appellant on unnatural offence contrary to section 154(1) (a) of the Penal Code. The particulars of the offence alleged that, on 30 October 2021, Kelvin S/O Lembris @ Ngwelenya @ Jack at Olsunyai area, Arumeru District in Arusha Region did have carnal knowledge against the order of nature to one II a boy of five years. The true name of the victim was concealed to protect his identity. The appellant denied the accusations prompting the trial involving four witnesses for the prosecution including the victim who testified as PW2 after his mother (PW1) followed by Happines Edward (PW3) and finally, the doctor who examined the victim at Mount Meru Hospital testified as PW4 and tendered the PF3 admitted in evidence as exhibit PI. In his sworn evidence, the appellant distanced himself from the accusations. He claimed that he was arrested at Kilombero market in June 2021 in connection with a fighting with a co-businessman going by the name Hamza and kept in custody at the Central Police Station before being shifted to Usa River Police Station in August 2021. In general, he claimed that the case against him was fabricated because, contrary to the

prosecution, the victim did not know him. At the end of the hearing, the trial court was satisfied that the prosecution evidence proved the charge beyond reasonable doubt. It entered a finding of guilt as charged followed by conviction and sentence. The first appellate court concurred with the trial court in its findings. Like the trial court, the High Court was satisfied that the case against the appellant had been proved beyond reasonable doubt. It dismissed his appeal. In his quest to overturn the concurrent findings of fact by the two courts below, the appellant faults the decision of the first appellate court on eight grounds of appeal supported by a statement of written argument dubbed "ufafanuzi wa sababu za rufaa", meaning, "elaboration on the grounds of appeal" in pursuance of rule 74 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules). At the hearing of the appeal, the appellant appeared in person, unrepresented and beseeched the Court to allow the appeal on the strength of the grounds in the memorandum of appeal and the supporting written arguments with nothing in addition. He invited the Court to quash the conviction, set aside the sentence and set him free. Ms. Janeth Sekule and Mr. James Paliangyo, both learned Senior State Attorneys, entered appearance for the respondent Republic resisting the appeal. It was Mr. 4

Pallangyo who addressed the Court except on a few aspects on which Ms. Sekule weighed in. Out of eight grounds, the 1st, 2n d and 3rd grounds are based on procedural aspects whereas, the 4th to 7th grounds are directed against conviction on weak evidence allegedly which did not prove the charge beyond reasonable doubt. The 8th ground is against failure to consider defence evidence. The complaint in the 1st ground is directed against delayed arraignment contrary to the provisions of section 33 (1) of the Criminal Procedure Act ("the CPA"). The appellant submits that, whereas he was arrested 12 days after the incident, that is, November 2021, it was not until 28 February 2022 when he was arraigned before the trial court which was contrary to law. He supported his argument by the Court's decision in the Director of Public Prosecutions v. Focus Malindi [2025] TZCA 305 in which the Court acquitted the respondent on account of unexplained delay in arraigning him before the trial court. Whilst conceding that there was some delay in arraigning the appellant, Mr. Pallangyo argued that, such delay had no bearing on the trial and conviction on the authority of the Court's decision in Eliapenda Zephania v. Republic [2024] TZCA 728. The Court in that decision reiterated its earlier position that, delayed arraignment has no bearing in 5

the trial and the resultant conviction but the appellant had a remedy in a civil action for compensation. On our part we agree with Mr. Pallangyo. Apparently, like here, the appellant in Eliapenda Zephania neither did he raise any complaint against delayed arraignment at the trial nor on the first appeal. He raised it in a second appeal. Guided by our previous decisions in like situations, the Court stated: "... 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 m isplaced. We have no m aterial facts to deal with such a com plaint The com plaint ought to have been raised before the tria l court which was in better position to investigate it It was even not raised before the High Court. It is also our considered view that, delay in arraigning an accused person, if (established, m ight constitute a cause in a claim o f damages fo r curtailm ent o f personal lib erty but not fo r the sam e to be raised as a ground o fappeal in invalidating the tria l../' We take the same position in the instant appeal that the complaint is but an afterthought without any bearing on the trial and conviction. It is accordingly dismissed. 6

The appellant's 2n d ground faults the two courts below for not finding that he pleaded to a charge which was not yet framed. In his elaboration, the appellant took us through the date on which he was arraigned showing that it was 28 February 2022 but until 29 August 2022 when PW2 testified there was not yet in place any charge on which he pleaded. Replying, Ms. Sekule who weighed in argued and rightly so that, the complaint was misconceived. While the typed proceedings indicate that the appellant pleaded to the charge on 28 July 2022, it is glaring from our examination of the original record of appeal that it was 28 February 2022 when the appellant pleaded to the charge when he was first arraigned in court. Following an order for amendment, the appellant pleaded to an amended charge on the 29 August 2022. Apparently, this complaint is being made for the first time in a second appeal. We find no merit in this complaint and dismiss it. Next on the 3rd ground faulting the courts below for grounding conviction on a defective charge. According to the appellant's elaboration, the complaint relates to the alleged variance between the particulars of the offence in the charge and evidence as to the scene of crime. The appellant contends that, whereas the charge shows that the offence was committed at Olsunyai area, the evidence through PW1 and PW3 show that it was at Kwa Mulaa. As the prosecution did not seek to amend the 7

charge to reflect the correct scene of crime in terms of section 251(1) of the CPA, the appellant argued that it rendered the charge defective vitiating his conviction. The appellant cited to us our decisions in John Julius Martine & Another v. Republic [2023] TZCA 789 and Tumaini Frank Abraham v. Republic [2023] TZCA 1746 on the effect of variance between the charge and evidence where there is no amendment to cure the variance. Mr. Paliangyo argued and rightly so in our view that the alleged variance did not render the charge defective. Consistent with the Court's decisions, amongst others, Abel Masikiti v. Republic [2015] TZCA 8, if established, variance between the charge and evidence could result in the charge being unproven resulting in the acquittal of the accused person. As to whether there was indeed any variance in the manner pointed out by the appellant, Mr. Paliangyo was adamant that none existed and argued that, Ilboru referred to by PW1 is an administrative ward comprising areas such as Oisunyai where the offence was committed. However, that statement just came from the bar. Indeed, there was no suggestion that the location of the scene of crime be within Ilboru ward or elsewhere was a matter that courts would take judicial notice in terms of section 64(1) of the Evidence Act. All the same, in Leonard Mkumbo v. Republic [2024] TZCA 764, in a more or less similar circumstances 8

prevailing in this appeal, the Court took the view that the controversy could be resolved by invoking section 64 (1) (g) of the Evidence Act. That section provides:

1. A court sh all take ju d icia l notice o f the follow ing facts: (a)-(f) N/A (g) the divisions o f time, the geographical divisions o f the world, and public festivals, feasts and holidays notified in the Gazette; Armed with the above, the Court resorted to a search from the Tanzania Posts Code directory to find out whether Kikuletwa, the place appearing in the particulars of the offence as the scene of crime was located within Mbuguni Ward mentioned by the witnesses. In the end, it was satisfied that, Kikuletwa area was a place within Arumeru District in Arusha Region with postcode No. 23312. It thus dismissed the complaint that there was a variance between the charge and evidence as the place where the offence was committed. The particulars of the offence in the charge in this appeal indicate that the offence was committed at Olsunyai area within Arumeru District, Arusha Region. In her evidence, PW1 stated that she was a resident of Ilboru. PW3 who informed PW1 having seen the victim with the appellant is on record that it was at kwa Mulaa. She also said that, the victim stayed at the same place. The victim said nothing in relation to the scene of 9

crime. It is instructive from our perusal of the original record that, one of the facts admitted during the preliminary hearing was the appellant's residence; Olsunyai area within Arumeru District consistent with the particulars of the offence. After approaching the matter in the same way, we did in Leonard Mkumbo (supra), it is glaring that, Ilbouru is an administrative ward within Arusha Central Business District (CBD) with two locations that is to say; Meretu and Oltulelei. On the other hand, there is a location called Osunyai shown to be an administrative ward within Arusha CBD with four locations; JR, Kirika B, Ngusero and Osunyai. Since the charge alleges that the offence was committed in Olsunyai area within Arumeru District, we agree with the appellant that there was indeed a variance between the charge and the evidence as to the place where the offence was allegedly committed. That variance attracted amendment of the charge in terms of section 251 (1) of the CPA to cure it. Nevertheless, the prosecution did not seek to do so. That was fatal to its case as it was tantamount to the charge being unproven consistent with the Court's decisions in, amongst others, Abel Masikiti (supra), Noel Gurth a.k.a Bainth & Another v. Republic, Criminal Appeal No. 339 of 2013 and Issa Mwanjiku v. Republic [2020] TZCA 1801. It follows thus that the appellant was wrongly convicted in a case in which the prosecution failed 10

to prove beyond reasonable doubt that the appellant committed the offence on the material date at Olsunyai area within Arumeru District, Arusha Region. In view of the foregoing, we find merit in the 3rd ground and allow it which renders the determination of the remaining grounds superfluous. The conviction is thus quashed and sentence set aside. The appellant shall be released forthwith from custody unless lawfully held therein. DATED at DODOMA this 23rd day of March, 2026. L. 1 S. MWANDAMBO JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL Judgment delivered Virtually this 25th day of March, 2026 in the presence of the appellant in person - unrepresented, Mr. Tonny Kilomo, learned State Attorney for the Respondent/Republic and Mr. Fahmi Karemwa, Court Clerk is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL li