Mkapa Edward vs Republic (Criminal Appeal No. 480 of 2022) [2026] TZCA 340 (24 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA fCORAM: MKUYE. J.A., RUMANYIKA. 3.A. And AGATHO. J.A/> CRIMINAL APPEAL NO. 480 OF 2022 MKAPA EDW ARD............................................................. ........ APPELLANT VERSUS THE REPUBLIC .................. .................................. ...............RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mbeya) (Nqunyale, J.) dated the 9th day of August, 2022 in Criminal Appeal No. 134 of 2021 JUDGMENT OF THE COURT 18th February & 24th March, 2026. MKUYE. J.A.: The appellant, Mkapa Edward, was arraigned before the District Court of Chunya at Chunya for committing an unnatural offence contrary to section 154 (1) (a) and (2) of the Penal Code, Cap 16 R. E. 2019. It was alleged in the particulars of offence that, on 11th day of March, 2021, at Mapogoro village in Chunya District and Mbeya Region, the appellant had carnal knowledge of K s/o J (who shall be referred to as the "victim" or "PW1" to conceal his identity) a ten (10) years old child against the

order of nature. When the charge was read over to him he pleaded not guilty. At the trial, the prosecution called three (3) witnesses and tendered one exhibit. On the part of the appellant he was the sole witness. PW1, the victim, testified that on the 11th March 2021 during night time, he came across with the appellant who told him to go and sleep at his premises. He complied. While on bed, the appellant told him to undress his clothes then the appellant also undressed his trouser and thereafter he inserted his male organ (dudu) into his anus. PW1 remained at the appellant's residence for four days whereupon the appellant kept on sodomizing him on 11/3/2021,12/3/2021 and on 14/3/2021. PW1 also testified that, in the afternoon he used to hang around and returned to appellant's home at night. It was his testimony that, on 15/3/2021, his father (PW2) met him at the market and was taken home. PW2, the victim's father, testified on the disappearance of the victim from 11/3/2021 until on 15/3/2021 night when he located him at the market. He testified that, he searched the victim for four days (11/3/2021, 12/3/2021, 13/3/2021 and 14/3/2021) but he could not locate him. He found him on 15/3/2021 hanging around in the street at about 21:00 hours and he took him back home.

PW2 testified further that, on questioning the victim about his whereabouts, he narrated to him that he had been sleeping with the appellant who sodomized him. PW2 said, he reported the matter to the village authority whereupon the appellant was apprehended. They also reported at Chunya Police Station where they were issued with a PF3 to take the victim to Chunya District Hospital for medical examination. PW2 also provided proof of the victim's age that he was born on 15/11/2010 and that he was a standard V pupil at the time. Dr. Moris Msangola Mdoe (PW3) testified to the effect that he conducted a medical examination of the victim and observed physical signs suggesting sodomy including bruises, swelling in his anus and pains. According to PW3, his conclusion was that the child had been penetrated by a blunt object as was recorded in the PF3 (Exhibit PEI) In his defence, the appellant denied any involvement in the crime and that he was surprised to be apprehended. After the conclusion of the trial, the trial court found that the prosecution proved the case beyond reasonable doubt. It convicted the appellant and sentenced him to thirty years' imprisonment. His appeal to the High Court was unsuccessful as the High Court found that PW1 was credible and truthful witness.

Stilt aggrieved, the appellant has brought this appeal to this Court fronting two memoranda of appeal comprising a total of six (6) grounds as well as written arguments in support of appeal to form part of his oral submission. The grounds of appeal in the original memoranda of appeal can be paraphrased as follows:

1. The High Court Judge dismissed the appeal without evaluating the petition of appeal.

2. The first appellate court dismissed the appeal without taking into account that PW1 and PW2's evidence lacked corroboration from police who issued PF3, investigator and Hamlet Chairman who were informed about the incident.

3. The High Court Judge dismissed the appeal without considering that bruises found on victim's anus did not amount to penetration.

4. The appellate court dismissed the appeal without considering the appellant's defence case as the prosecution failed to prove the case as per the law. The grounds of appeal in the supplementary memoranda of appeal are to the effect that:

5. The prosecution failed to prove the case beyond reasonable doubt.

6. The two courts below grounded conviction of the appellant on incredible evidence of PW1 (victim) which was uncorroborated. When the appeal was called on for hearing, the appellant appeared in person, unrepresented and the respondent Republic had the services of Messrs. Davice Msanga and Salmin Zuberi, both learned State Attorneys who declared their stance that they did not support the appeal. In his written submission, the appellant contended that: One, the prosecution failed to call Khalid and the Hamlet Chairman to testify in court as they were called by PW1 after being informed by PW2 about his ordeal. Two, the first appellate court failed to assess the credibility of PW1 as he showed a strange behavior of staying at the appellant's house for four days without escaping while he was not threatened or kidnapped with dangerous weapons. He added that, PW1 also confirmed under cross- examination by the appellant, that in the afternoon he was hanging around the market and that the appellant was not looking the door by a padlock. Three, that the credibility of PW2's evidence leaves a lot to be desired for his failure to notify the hamlet chairman, Village Executive Officer (VEO), Ward Executive Officer (WEO), Police station or head teacher about the disappearance of the victim for all those days. He

contended that, PW2 being an adult, his conduct casts a serious doubt in evidence. Four, although PW2 testified that, there were appellant's relatives who went to solicit forgiveness for whatever was done by appellant, the appellant wondered, why PW2 did not call his neighbors to witness it or bring such persons to corroborate his evidence. Otherwise, it was the appellant's view that PW2 gave a false evidence. Assailing the evidence of the doctor (PW3), it was the appellant's contention that, it is not hard to detect bruises in the anus which passes feces every day and hence his evidence is unreliable. For those reasons, the appellant urged the Court to find that the appeal is meritorious and allow it with an order for setting him free. On their part, it was Mr. Zuberi who presented the arguments for the respondent Republic. He opted to argue the grounds of appeal in the following arrangement.

1. Ground no 2 o f original memorandum o f appeal (MA) and ground no 2 o f supplementary memorandum o f appeal (SMA) co-jointiy.
2. Grounds no 4 o f MA and no. 1 o f SMA together.
3. Grounds no. 1 o f MA and 3 o f SMA together.
4. Ground no 1 o f MA separately. 6

Regarding the 1st ground of appeal in the MA in which the appellant's complaint is on failure to evaluate the petition of appeal, Mr. Zuberi argued that it is not true as the first appellate court evaluated all grounds of appeal as shown at pages 60 to 67 of the record of appeal. As regards grounds no. 2 of MA and no. 2 of SMA that the evidence of PW1 and PW2 lacks corroboration in connection with the investigator of the case, he argued that, such grounds were misplaced because the High Court relied on section 127 (6) of the Evidence Act Cap 6 R. E. 2022 and the case of Fahadi Khalifa v. Republic [2022] TZCA 251, in which it was emphasized that, the evidence of the victim is sufficient. Mr. Zuberi added that, PW2 also proved the age of the victim and explained how PW1 went missing and how the day he met him explained that Mkapa sodomized him. In his view, this submission answered the appellant's arguments in paras 4, 5, 6 and 7 of the written submission. Concerning ground no. 3 of the MA that bruises in the anus is not a proof of penetration, Mr. Zuberi argued that such argument lacked merit since PW3 in his examination observed bruises and swelling in PW l's anus and PW1 said he felt pains. This was sufficient to conclude that the victim was penetrated by a blunt object. In relation to grounds nos. 4 of MA and 1 of the SMA that the case was not proved beyond reasonable doubt, Mr. Zuberi argued that, the

case was proved beyond reasonable doubt as all ingredients of the offence were established. The learned State Attorney elaborated that PW1 met the appellant who told him to go to his house where they slept and later appellant inserted his male organ in the anus of the victim. He went on submitting that the ingredient of penetration against nature was proved by PW1 whose evidence was corroborated by PW3 who examined him and observed bruises, swelling and that he felt pains. That, PW1 also informed PW2 after being found on what he went through. Apart from that, he argued that, the appellant's relatives and sisters, approached PW2 for reconciliation which was an indication of admission to the offence. On being prompted by the Court on the credibility of PW1 by staying away from home for four days without being threatened, he argued that, that was mere factual which cannot change the situation. Regarding lack of corroboration of PW1 and PW2's evidence he contended that the two witnesses were competent witnesses to testify under section 147 of the Evidence Act. In relation to PW2's failure to report on the disappearance of the victim, he argued that, PW2 was searching for him though he did not say how he searched for him, until when he met the victim at the market on 15/3/2021. s

On further prompting by the Court, the learned State Attorney conceded that PW1 was not locked in the house for all four days and that he did not disclose the incident to anybody until after four days when he was located by his father (PW2). In rejoinder the appellant insisted to the Court to allow the appeal and set him free. In the first ground of appeal, the appellant's complaint is that the first appellate court did not evaluate the grounds in the petition of appeal. However, we go along Mr. Zuberi's line of argument that the first appellate court considered the grounds in the petition of appeal. It is gathered from the judgment of the High Court that, the learned Judge appreciated the grounds of appeal, summarized the evidence adduced before the trial court and reassessed the credibility of prosecution witnesses, medical evidence and defence case. Then it addressed the appellant's grounds in the petition of appeal by considering and evaluating every aspect of complaint including the alleged evidence of family members, failure to report the disappearance of PW1, proof of age, failure to call certain witnesses and sufficiency of corroborative. In this regard, we find no basis of this complaint and hold that it is devoid of merit and dismiss it.

With regard to the appellant's complaint shaking PW2's credibility for not reporting the disappearance of PW1 for four days to the village authorities, Mr. Zuberi argued that PW2 searched for him on himself. On how PW1 did not go home in all the four days while he was not locked in and kept on hanging around and went back to the appellant's residence, he conceded that, that was unusual. We think, the arguments on these aspect entail credibility of witnesses. We are mindful of a settled law that every witness is a credible witness unless there are cogent reasons for not believing him. This was a stance taken in the case of Goodluck Kyando v. Republic [2006] TZCA 428. However, it is the duty of the court of first instance to determine the credibility of the witnesses who testify before it as was correctly argued by the learned State Attorney. If we may add, the determination of credibility of a witness cannot be made in isolation of the other pieces of evidence on record and the circumstances surrounding it. This position was emphasized by the Court in the case of Shabani Daudi v. Republic, [2004] TZCA 84, where it was stated that: "The credibility o f a witness can also be determined in two other ways; One, when assessing the coherence o f the testimony o f that witness. Two , when the testimony o f that witness is considered in relation with 10

the evidence o f other witnesses including that o f the accused." We start with the credibility of PW1, the victim. PW1 testified on among others that he stayed with the appellant for four days. During the day time he used to hang around and they met at home at night On being cross examined, he said, the appellant did not lock the door. However, he did not use that opportunity to go home or disclose his ordeal to anybody even though he was going out. Does it mean that he did not meet people while he was moving around the streets? On top of that, there was no evidence if he was threatened by the appellant. It was expected that PW1, a child as he was, could have ran away to his home considering what he had encountered. This, in our view raises doubts. In relation to PW2's evidence, we note that he testified on the disappearance of PW1 from 11/3/2021 until was located by him on 15/3/2021 which was after four days. He also testified that, he searched for him for the whole that period until when he met him in the night at the market. The appellant's complaint is why didn't he report to the village authority but searched for him alone. Having scanned the record of appeal, we agree with both parties that PW2 did not report the disappearance of the victim to anybody be it to his neighbours, village authority, police station or at his school until he 11

found him incidentally in the street after four days. No explanation was given for such failure to report such a serious issue of disappearance of a child aged ten (10) years. We think, logic requires that he should have reported such incident to the neighbours, village authority or even at the police station. In our considered view, that was not a personal issue but a community issue. In the case of Abiola Mohamed @ Simba v. Republic [2021 TZCA 632, when the Court was confronted with akin situation whereby the victim went missing for 10 days but the matter was not reported to the police or even the community leaders at the material time, it observed that such conduct defied logic and common sense for a caring family of a child of 14 years. It found that the witness was not a credible and truthful for her evidence to ground a conviction. In the matter at hand, as alluded to earlier on, the victim who was aged ten years disappeared from 11th March 2021 until on 15th March 2021 when he was relocated by PW2, his father. PW2 claimed to have been searching for him alone until he located him. He did not inform his neighbours, community leaders such as village chairman, Village Executive Officer or report to the police station on such occurrence. In our view, this defied logic and common sense for any caring family of such a child who was aged only 10 years. We wonder why PW2, the victim's 12

father, did not report his disappearance. Did he know where he was? When did he expect to locate him? Indeed, the conduct depicted by PW2 of not reporting such a serious matter leaves a lot to be desired. Considering the evidence of PW1 who depicted such a strange conduct over the matter, coupled with PW2's failure to report the victim's disappearance to anybody, we do not think such witnesses (PW1 and PW2) were credible and truthful. We find merit in such complaints. The other appellant's complaint is on failure by the prosecution to call Khalid, Justine and the Hamlet Chairman who were alleged to have been called by PW2 following PW l's narration of his ordeal to him. Mr. Zuberi did not respond on this complaint. Much as the appellant did not explain the gist of the said Khalid, Justine and Hamlet Chairman's evidence, we note that the hamlet chairman was the one who was informed about the ordeal immediately by PW2 and Khalid and Justine apprehended the appellant. Regarding the issue of calling or not calling a witness is well established under section 143 now 157 of the Evidence Act, Cap 6 R.E. 2023 that there is no particular number of witnesses required to prove any particular fact. See also: Yohanis Msigwa v. Republic [1990] TZCA 162. 13

In this case, given the fact that there was no investigator or a police officer who arrested the appellant who adduced evidence in court to that effect, we think, Kha Iid and Justine who were mentioned by PW2 to have apprehended the appellant were material witnesses who ought to have been called to testify in court. Also, the hamlet chairman to whom the matter was reported immediately was a material witness. We are aware that if material witnesses are not called to testify in court and there is no explanation for such omission, the court is entitled to draw adverse inference against the person who ought to call such a witness (in this case the prosecution). See: Director of Public Prosecution v. Sonjo Gabuna [2026] TZCA 104. In this case, given the circumstances which we have explained above that there was no evidence from either the investigator or a police or persons who arrested the appellant and the hamlet chairman who was first notified by PW2 about the ordeal we think, it is a case which entitles the Court to draw adverse inference that perhaps if Khalid, Justine and the hamlet chairman were called to testify on how appellant was apprehended, they would have ruined the prosecution case. We find merit in this complaint and allow it. The appellant's other angle of his complaint was on the evidence by PW2 that the appellant's sisters/relatives went to apologize on his behalf 14

while offering him TZS. 60,000/=. The appellant denied contending that, he never sent anybody to ask for forgiveness. The learned State Attorney had a view that this was a sign of the appellant's admission to the offence. In our view, this is a version from one person (PW2) against the other (the appellant). While PW2 contended that appellant's sisters and relatives went to solicit forgiveness from him on the appellant's behalf, the appellant controverted it contending that he never sent anybody. We have given a considerable examination of the rival evidence. In the first place, we wonder, if there was such arrangement, why did PW2 deal with it alone without calling anybody such as a hamlet chairman or neighbor to witness. Secondly, why didn't the prosecution side call such sisters to testify in court so as to clear such dust. In such a situation where there is no corroborating evidence from another witness, the evidence of PW2 on that aspect remains doubtful. Lastly, we ask ourselves, if the prosecution proved the case beyond reasonable doubt which is among the appellant's grievances. We note that the learned State Attorney argued at length on how all ingredients of the offence were proved. He also reminded the Court that the best evidence comes from the victim. He went on pointing out that the age of the victim was proved by PW2; penetration was proved by PW3 who observed 15

bruises and swelling in PW l's anus and that PW1 proved on how the appellant penetrated him. We, basically, agree with the learned State Attorney that is the state of affairs of the evidence that was adduced by PW1, PW2 and PW3. We also agree that the evidence in sexual offence is governed by section 127 (6) of the Evidence Act and that the best evidence comes from the victim herself or himself. See: Fahadi Khalifa's case (supra); Selemani Makumba v. Republic [2006] TZCA 96; Magai Manyama v. Republic, [2015] TZCA 374; and Abiola Mohamed @Simba (supra). However, there is a need to subject the victim's evidence to scrutiny in order for the court to satisfy itself that what is testified by such witness is nothing but the truth. In the latter case of Abiola Mohamed @Simba (supra), the Court stated that: "The testimony o f the victim o f sexual offence should not be taken as gospel truth but has to pass the test o f truthfulness. It is only through this litmus test that courts will ensure that only deserving offenders are kept behind bars and the innocent are set free." In this case, having tested the credibility of PW1, we find that it is questionable as explained before. Worse still, the credibility of PW2 who could have salvaged the situation, also leaves a lot to be desired. In this regard, considering that the credibility of PW1 and PW2 who were crucial 16

witnesses is shaken, we hasten to say that it cannot be said that the case against the appellant was proved beyond reasonable doubt. In the event, we allow the appeal, quash the conviction and set aside the sentence meted out on the appellant and order that he be released immediately from prison unless held for other lawful cause(s). DATED at DODOMA this 24th day of March, 2026. R. K. MKUYE 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. JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL 17