Bakifu Kaswiti Mwakalyelye vs Republic (Criminal Appeal No. 557 of 2022) [2026] TZCA 341 (24 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA ( CORAM: MKUYE. J.A.. RUMANYIKA. J.A. And AGATHO. J.A.1 CRIMINAL APPEAL NO. 557 OF 2022 BAKIFU KASWITI MWAKALYELYE ........... . ............................APPELLANT VERSUS THE REPUBLIC ......................... . ........................................ RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mbeya) (Monqella, J.) dated the 13th day of June, 2022 in Criminal Appeal No. 46 of 2022 JUDGMENT OF THE COURT 24th February & 24th March, 2026. MKUYE, J.A.: Before the District Court of Rungwe at Tukuyu, the appellant, Banifu Kaswiti Mwakalyelye was arraigned for the offence of rape contrary to section 130 (1) (2) (e) and 131 (1) of the Penal Code, Cap 16 R. E. 2019. The particulars of the offence were that, the appellant on 7th day of August 2019, at about 19:00 hours at Suma Village within Rungwe District in Mbeya Region, unlawfully had carnal knowledge of a girl aged 10 years (name withheld to conceal her identity). The appellant pleaded not guilty to the charge culminating into the prosecution to bring four (4) witnesses to prove the case and produced two (2) exhibits whereas the appellant was the lone witness without any exhibit. PW2, the victim testified to the effect that on the material date the appellant, who was her uncle and worked for her grandfather, called her to a tea farm while she was playing with her friends. On arriving to the farm he ordered her to undress and proceeded to penetrate her, threatening to slaughter her if she raised alarm. This act was reportedly interrupted by PW3, a 13 years old boy, who was returning home from washing clothes. PW3 testified to have seen the appellant on top of the victim with his trousers lowered. Upon been discovered, the appellant allegedly threatened to kill PW3 if he revealed what happened and gave him TZS. 1,000.00 to share with the victim. However, despite the threat, PW3 informed his father which led to his mother questioning the victim the following morning. The victim confessed to the grandmother and PW3's mother that she was raped by the appellant. Medical examination of the victim was conducted by PW4 who observed a ruptured hymen and pain in the victim's vagina walls, which the medical professional concluded that, that was consistent with penetration by a male organ. In his defence, the appellant denied any familiarity with the victim and contended that the allegations against him were driven by ill motives. Upon the conclusion of the trial, the trial court found that the prosecution's evidence was credible and rejected the appellants' defence. It convicted the appellant and sentenced him to life imprisonment. The appellant's initial appeal did not go through following an order issued by the High Court of Tanzania at Mbeya in Criminal Appeal No. 35 of 2020 for a retrial due to some procedural defects. This appeal, therefore, emanates from the judgment of the District Court (Hon. Lugome RM) in compliance with the High Court Order. The appellant has filed two memoranda of appeal with a total of eight grounds of appeal as follows: A. Substantive Memorandum of Appeal. 1. That, the first appellate Court erred in law when it dismissed the appellant's appeal by ignoring the petition o f appeal Hied by the appellant. 2. That, the first appellate Court erred in law when it dismissed he appellant's appeal relying on the evidence o f PW2 and PW3 without solving the issue o f visual identification since no any recognition identification proved the same. 3. That ; the first appellate Court erred in law when it dismissed the appellant's appeal without evaluating deeply the prosecution case and reached at a wrong decision. 4. That, the defence was not considered. B. Supplementary Memorandum of Appeal. 1. That\ the two courts below erred in law point and fact in grounding the conviction against the appellant with respect to the offence o f rape without taking into consideration that the penetration was not proved as even PW2 (victim) herself only gave a general statement that she was raped without specifically proving penetration which is contrary to section 130 (4) (a) o f the Penal Code and case law please refer in the case o f BURTON MWIPABILEGE V. REPUBLIC ' Criminal Appeal No. 200 o f 2009 (unreported). 2. That, the evidence o f PW4 is not reliable as PW4 was unqualified, also Exhibit P2 was not read loudly to the appellant after being admitted as evidence. 3. That, adverse inference should have been drawn out for the prosecution's failure to summon a material witness. 4. That ■ the contradiction between the evidence o f PW2 and PW4 went to the root o f the matter. When the matter was called on for hearing, the appellant appeared in person without any representation. On the other hand, the respondent Republic had the services of Mses. Naomi Mollel and Hannarose Kasambala, both learned Senior State Attorneys being assisted by Mr. Rajabu Hassan Msemo, learned State Attorney. On being called upon to expound his grounds of appeal, the appellant sought to adopt them and opted for the learned State Attorneys to respond first while reserving his right to rejoin later, if need would arise. On their side Ms. Kasambala intimated to the Court that she will argue grounds 3 and 4 of the substantive memorandum of appeal co- jointly; grounds 1 and 3 of the supplementary memorandum of appeal, co-jointly; then grounds 1 and 2 of the substantive memorandum of appeal separately; and grounds 2 and 4 of the supplementary memorandum of appeal separately. In relation to ground no. 1 of the substantive memorandum of appeal in which the appellant's complaint is on failure to consider the petition of appeal, Ms. Kasambala argued that the High Court considered all ten (10) grounds of appeal which were presented before it. She contended that while grounds nos. 2, 3 and 5 where argued together, the remaining grounds were dealt with separately as can be shown at pages 86 to 90 of the record of appeal. She, therefore concluded that this ground lacks merit and it should be dismissed. Our examination of the record of appeal has revealed that this complaint lacks merit. The first appellate court summarized and evaluated all the grounds of appeal as shown from pages 86 to 90 of the record of appeal. In dealing with the said grounds of appeal, the appellate Judge dealt with grounds number 2, 3 and 5 co-jointly and the other remaining grounds were dealt with separately. It is, therefore, not true that the petition of appeal was ignored. Hence, this ground has no basis and it is dismissed. In the 2n d ground of appeal the appellant complains that the trial court made reliance on evidence of PW2 and PW3 without resolving the issue of identification. It was Ms. Kasambala's argument that, the appellant was clearly identified at the scene of crime. She added that PW2 knew the appellant even before the incident as he was her uncle apparently herds man of her grandfather's cattle. Besides that, PW2's evidence was corroborated by PW1, the victim's father that he was his brother in law. Ms. Kasambala went on elaborating that PW2 identified the appellant with the help of moonlight and a solar light illuminating at cattle craal and by his voice. She contended that the time spent by the victim and the appellant enabled her to identify him from when they moved from where she was playing, when they went to the craal, then to the tea estate. A part from that, Ms. Kasambala argued, PW3 also identified him through the moonlight and knew him before as he used to graze his grandmother's cattle. This witness testified to have seen the victim and appellant naked while was on top of the victim and that he observed them at a distance of only one step. To bolster her point that the appellant was identified by recognition, he referred us to the case of Nebson Tete v. Republic, [2015] TZCA 237 at page 6. The learned State Attorney insisted that the appellant was properly identified and urged the Court to dismiss the ground for want of merit On our part, we agree with the learned Senior State Attorney that the appellant was properly identified. We say so because identification by recognition is more reliable in certain circumstances. In the case of Nebson Tete (supra), the Court pronounced itself that identification by recognition is more reliable than an identification of the stranger. We note that the High Court also endorsed that, the identification of the appellant was that of recognition. We agree with the learned Senior State Attorney that the appellant was so recognized by PW2 and PW3. For instance, PW2 knew the appellant before the incident, as her uncle and a herdsman of her grandfather's cattle. PW2 was able to identify him through the moonlight and solar light at the craal. Also the time spent by the appellant and the victim from when he took her (where she was playing) to the tea estate and their proximity when he raped her, was substantial to enable identification. Similarly, PW3 identified the appellant by recognition. This witness knew the appellant as he used to do farming and herdsman of cattle. With the aid of moonlight he saw the appellant and victim naked while the appellant was on top of the victim. When observing them he was at a distance of only one pace too close to eliminate the possibility of mistaken identity. All those factors show that the appellant was properly identified and there was no reason for mistaken identify. This ground as well fails. In the 3r d and 4th grounds of the substantive memorandum of appeal, the appellant's grievance is on the first appellate court's failure to evaluate the prosecution and defence evidence. 8 Ms. Kasambala countered this claim to be baseless. She contended that, the trial court considered the evidence including the contradictions raised by the appellant and found them not going to the root of the matter. This claim was also considered by the High Court as shown at pages 89 to 90 of the record of appeal. For easy of reference, we leave the relevant portion to speak for itself: "... Starting with the defence case, it is dear at pages 7 and 8 o f the trial courts judgment that the same was keenly considered. The appellant's only evidence was on contradictions between the dates o f the offence by PW2 and PW4 and contradiction on whether the victim was infected with sexually transmitted diseases between PW1 and PW4. With regard to the contradiction between PW2 and PW4 on the dates, I have already deliberated under the 1st ground, that there is no any contradiction. The witnesses testified what they witnessed whereby PW4 stated that he received the victim on 18th August 2019. In the PF3 he as well clearly noted that he received the victim 11 days from the last incident o f sexual intercourse. With regard to the contradiction between PW1 and PW4 on the sexually transmitted diseases, I find the same not going to the root o f the matter. It should be noted that PW1 has no medical expertise, but it was PW4 who examined the victim and testified as to the medical resuits he came up with. This finding also disposes the claims under the 9 h ground o f appeal..." As such, looking at the above excerpt, it is not true that the 1s t appellate court did not evaluate the prosecution and defence evidence. Therefore, we find this ground to be devoid of merit and we dismiss it. The appellant's complaint in the 1s t ground of the supplementary memorandum of appeal, is that PW4 who examined the victim was not qualified and that Exhibit PE2 was not read over after being admitted in evidence. The learned Senior State Attorney dismissed the preceding complaint contending that it was a misdirection by the appellant. Ms. Kasambala argued that, the victim was examined by PW4 who was a qualified doctor and the PF3 (Exhibit PE2) was read out in Court. Regarding the qualification of PW4 we are inclined to agree with Ms. Kasambala that PW4 was a qualified doctor being an Assistant Medical Officer with 30 years' experience as shown at page 54 of the record of appeal. We are of the view that, with that knowledge and experience he had sufficient qualification to examine the victim as he did. After all the 10 appellant did not elaborate his complaint on the qualification he referred to. As regards the second limb of the complaint that Exhibit PE2 was not read out in court we find that it is the appellant misconception since the record is clear that the same was read aloud in court after being admitted as Exhibit PE2 (see page 55 of the record of appeal). This ground fails for want of merit. In ground 4 of the Memorandum of appeal, the appellant's complaint is that there was contradiction on the evidence of PW1 and PW4 which went to the root of the matter. Unfortunately, he did not explain the contradiction he was referring to. On her part, Ms. Kasambala contended that she was unable to detect any contradiction between the evidence of PW1 and PW4, as in her view, each testified on what he/she observed. On top of that, the trial court discussed the contradictions between prosecution and defence testimonies and did not find any. The law regarding contradiction is well settled. Where there is a claim of contradictions or inconsistences in the evidence the court is required to consider them and resolve if they are minor or they go to the root of the matter. (See: Mohamed Said Matula v. Republic [1995] T.L.R. 3; Shukuru Tunungu v. Republic [2016] TZCA 304 and Abasi Makono v. Republic [2019] TZCA 572. ii In this case, the trial court, as rightly submitted by Ms. Kasambala considered the contradiction on the dates the examination to the victim was conducted, (See page 65 of the record of appeal) and came to the conclusion that the same did not affect the overwhelming incriminating evidence against the appellant. The High Court, also considered the issue of contradictions on the evidence of PW1 and PW4 on the issue of sexually transmitted diseases and found that it did not go to the root of the matter. Though the appellant did not come explicit as to which point he relied upon we find his claim to be misplaced. Even if he meant the contradictions which were discussed by the two courts below, we do not find any basis to fault their decisions. For avoidance of doubt, we find that the alleged contradictions did not go to the root of the matter so as to shake the prosecution evidence. Hence, this ground is demerited and we dismiss it. In grounds 1 and 3 of the supplementary memorandum of appeal the appellant's complaint is on the proof of the case that the prosecution failed against him. It was Ms. Kasambala's submission that, PW2 proved that she was raped by the appellant. She added, that PW2 clearly explained how appellant told her to undress and ordered her to lay down and he raped her. She argued further that, in sexual offences, the best evidence comes 12 from the victim herself/himself. To fortify her argument she made reliance on the case of Edward Nzabuga v. Republic, [2010] TZCA 364. Ms. Kasambala argued further that PW2's evidence was corroborated by the Doctor (PW4) who examined her and PW3 who witnessed the appellant being on top of the victim at the tea estate. We think, this issue must not detain us much because we have touched on it when discussing the other grounds of appeal. In cases of this nature, the prosecution is required to prove the age of the victim, penetration to the victim and the perpetrator of the incident. Also, in proving cases of sexual offences the best evidence should come from the victim himself/herself. (See: Edward Nzabuga, (supra) Selemani Makumba v. Republic, [2006] TLR 379. In this case, the issue of the victim's age was proved by PW1 who said the victim was 11 years at the time she was testifying having been born on 3/10/2010. On the issue of penetration PW2 (the victim) explained on how after being taken by the appellant from where she was playing with his friends, they reached at the tea estate where appellant told him to undress and he also undressed, ordered her to lay down and raped her. She explained how she felt painful and that he threated to slaughter her if she shouted. 13 A part from that, PW3 testified on how, on the materia! date, he saw the appellant half naked and the victim who was naked while the appellant was on top of the victim. That is when the appellant threatened to kill him if he disclosed what he saw and gave him TZS. 1,000.00 to be divided to him and the victim. Besides that, PW4 also corroborated that the victim was penetrated as he observed that her hymen was raptured which was an indication that she was penetrated by a male organ. With this evidence we do not have any flicker of doubt that the victim was raped/penetrated. As to who committed the offence, we think, with the aforesaid discourse, it was proved beyond reasonable doubt that the offence was committed by none other than the appellant. This is because, PW2 and PW3 knew him even before the incident being the herdsman of PWl's cattle. The offence was committed while there was light from moonlight and solar light. There was proximity between the witnesses and the appellant. For instance, PW3 observed them at a distance of only one pace. PW2 had ample time with him from when she was taken where she was playing with his friend up to the time when she was raped. Considering that the witnesses' credibility was not shaken, we are satisfied that the offence against the appellant was proved beyond reasonable doubt. 14 Therefore, with the foregoing, we find the appeal to be devoid of merit. We accordingly dismiss it in its entirety. DATED at DODOMA this 24th day of March, 2026. R. K. MKUYE JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL Judgment delivered virtually this 24th day of March, 2026 in the presence of the appellant in person, Ms. Imelda Aluko, learned State Attorney for the Respondent/Republic and Mr. Shafii Kassim, Court Clerk is hereby certified as a true copy of the original.