Elias Jonas vs Republic (Criminal Appeal No. 576 of 2023) [2026] TZCA 331 (20 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA ( CORAM: MWANDAMBO. 3.A.. MWAMPASHI, J.A. And MLACHA 3.A.) CRIMINAL APPEAL NO. 576 OF 2023 ELIAS JONAS................................. ...................................... APPELLANT VERSUS THE REPUBLIC ................... .......................................... RESPONDENT (Appeal from the Decision of the Resident Magistrate Court of Arusha, at Arusha) (Kamala. SRM-Ext-Juris.^ Dated the 26th day of August, 2022 in Criminal Appeal No. 108 of 2021 JUDGMENT OF THE COURT 24th February & 20th March, 2026 MLACHA, J.A.: The appellant, Elias Jonas, was arraigned at the Resident Magistrates Court of Arusha, at Arusha (the trial court) in Criminal Case No. 194 of 2020 charged with rape contrary to section 130 (1) (2) (e) and 131 (1) of the Penal Code Cap 16 of the Revised Edition 2002 (the Penal Code). He was convicted and sentenced to life imprisonment. His first appeal was heard by the Resident Magistrates Court of Arusha with Extended Jurisdiction in Criminal Appeal No. 108 of 2021 and was dismissed. i The particulars attached to the charge were that, the appellant had sexual intercourse with one "IJ", a girl aged 10 years old, on 17.07.2020 at Philips area, within the city, District and Region of Arusha, an act which contravened the law. The prosecution called 6 witnesses who tendered 3 exhibits to discharge their burden of proof. The appellant was the only defence witness and had no exhibit to tender. The evidence upon which the appellant was found guilty and convicted can be presented as follows. "IJ" (PW2), a child aged 10, was in the company of another child, Rachel juvenile aged 8 (PW3) on 17. 7. 2020, during evening hours moving back home, when they met the appellant. He grabbed PW2 and took her inside a house. He undressed her and inserted his penis in her vagina. PW3 who had witnessed the appellant grabbing PW2 rushed home to call her brother Peter Juvenile (PW4). She told him what had happened to PW2. They rushed to the house. PW4 called PW2 but she did not respond. As he was aware of the room where she had been, he picked a stone and broke the window glass open while raising an alarm. People responded to the alarm and forced the appellant to get out of the room. The appellant and PW2 got out of the room. The appellant was put under arrest. The information was disseminated to the parents of PW2 who turned up. When Fabiana Patrick Kihala (PW1) the mother of PW2 arrived at the scene, she found the appellant with PW2. She inspected the vagina of PW2 and saw bruises. They moved to the Police Station, obtained a PF3 and went to the hospital. PW2 was examined by doctor Baraka Julius Ndema (PW5) who filled the PF3 (Exhibit PI). His finding was that, there was a forceful vaginal penetration. Meanwhile, the appellant was sent to WP CPL Zamda (PW6) and confessed to commit the crime. PW6 recorded his cautioned statement, exhibit P2. It was received without objection during trial. He admitted that the window glass was broken by people who put him under arrest. He confessed to have committed the crime. The appellant (DW1) gave evidence during trial and denied to commit the offence. He told the trial court that he was painting his house that day while the children were playing around. They damaged the walls. He directed them to move away. They left but was soon arrested by the police. When he arrived at the Police Station, he was accused of committing the crime an allegation which was false. He denied to commit the crime. The trial court was impressed by the evidence led by the prosecution. It rejected the defence of the appellant who was found guilty, convicted and sentenced to life as intimated above. His first appeal was unsuccessful, hence the appeal before the Court. 3 The appellant presented two memoranda of appeal containing a total of 10 grounds. The grounds of appeal in essence boii down to 6 complaints which can be presented as follows, one, that, the charge sheet was not signed and stamped by the Magistrate; two, that, there was variance between the charge and evidence on the name of the appellant and the place of commission of the crime; three, that, the evidence of PW2, PW3 and PW4 was not credible; four, that, there was a contradiction between the evidence contained in exhibit PI (the PF3) and the evidence of PW1 (the mother of IJ); five, that, the transfer order moving the case to the Resident Magistrate Court to be heard by a resident magistrate with extended jurisdiction was defective and; six, that, there was un explained delay in charging the appellant. The appellant appeared in person fending for himself whereas the respondent Republic was represented by Ms. Janeth Sekule and Mr. James Pallangyo, both learned Senior State Attorneys. When the appellant was invited to address the Court on the above complaints, he requested the Court to consider his written submissions titled "UFAFANUZIWA SABABU ZA RUFAA” filed earlier on in terms of rule 74 (1) of the Tanzania Court of Appeal Rules, 2009 and had nothing more to add. It was the appellant's submission on the first complaint that the charge appearing at page 1 of the record of appeal was defective because it had no signature and stamp of the Magistrate. Based on this shortcoming, he urged the Court to make a finding that there was no proof of the offence charged and set him free. Submitting in reply, Mr. Paltangyo contended that, there is no law which required the Magistrate to sign and stamp the charge sheet. If it happens to be signed and stamped by a Magistrate, that is just a rule of practice failure of which did not make the charge defective. He urged the Court to dismiss the complaint. We have considered the submission of the parties. We have also examined the charge sheet appearing at page 1 of the record of appeal. We agree with the learned Senior State Attorney that there is no legal provision which required the Magistrate to sign and fix a stamp of the court on a charge presented to him. He can only do so in circumstances falling under section 129 (4) and (5) of the Criminal Procedure Act (the CPA) where he receives a complaint and draws the charge himself. This is rare nowadays where prosecution is regulated by the DPP with prosecuting attorneys at all levels. But in a situation falling under section 129 (6) of the CPA where a charge is presented by the public prosecutor, the one who is duty bound to sign on it is the public prosecutor. The magistrate can make an endorsement administratively that he has received it but is not legally bound to do so. See Justine Baruti Zorlos v The Director of Public Prosecutions (DPP) [2023] TZCA 17736. The signing and stamping a charge is thus a mere practice failure of which does not render the charge defective. The first complaint is thus dismissed. On the variance between the charge and the evidence, it was submitted by the appellant that the charge had the name Jonas whereas PW2 and PW3 said that they met Julius making reference to the appellant. Further, the charge described the scene of crime as being at Philips area whereas PW2 and PW3 called it Sekei. Based on this shortcoming, the Court was urged to nullify the proceedings, quash the conviction and set aside the sentence imposed on the appellant. The learned Senior State Attorney admitted the existence of the name Julius in the evidence of PW2 and PW3 but associated it with pronunciation problems given the age of the witnesses. He contended further that, the difference did not affect the appellant because he pleaded to the charge which had the name Jonas and gave his testimony in defence using the name Jonas. On whether the crime was committed at Philips or Sekei area, he submitted that this has no legal consequences because the difference did not affect the appellant during trial who defended himself on the crime which was committed at Philips area. In all, he urged to the Court to disregard the contradictions which he termed as minor, and dismiss the complaint. We had time to revisit the record and consider the submissions of the parties. We agree with the learned Senior State Attorney that, the differences in the name appearing in the charge and what appears in the evidence of PW2 and PW3 was caused by pronunciation problems given the ages of PW2 and PW3. It is also possible that they knew him as Julius whereas his actual name was Jonas. On what was the place where the crime was committed, we have the view that the parties' submissions on this area were misconceived. They were not backed by the record for PW2 and PW3 who did not say that the crime was committed at Sekei but lived in Sekei. PW2 stated at page 14 that "Hive at Sekei with my parent?. That was also the evidence of PW3 appearing at page 16. The witnesses said that while on the way from their aunt moving back home, they met the appellant who grabbed PW2 and took her to his room. The crime was thus committed somewhere on the way home, not at home (Sekei). There was thus no variance between the charge and the evidence on the place where the crime was committed. The complaint is thus baseless and dismissed. Next is the complaint that the evidence of PW2, PW3 and PW4 were not credible. PW2 and PW3 were attacked for not being credible for calling the appellant Julius. We have discussed this issue above and will have nothing to add. PW4 was discredited because he did not say he called PW1 whereas PW1 said that she was called by PW4. We agree that PW1 said that she was called by PW4 but we don't agree that the fact that PW4 did not say that he called PW1 can discredit his evidence. We hold this view because the crux of the evidence of PW4 was not on calling PW1 but on the way he met the appellant with PW2 and caused him to be arrested; that, he came at the house after being informed that her sister had been dragged into the house. That, he smashed the window glass of the room and rose an alarm to call people. And that, people came and together they saw the appellant coming out of the room with "IJ" whom they put under arrest and sent him to the Police Station. This evidence cannot be discredited by the fact that he did not say that he called PW1. TTie complaint is thus baseless and is dismissed. The appellant did not make any submission on the contradiction between the evidence contained in the PF3 and the evidence of PW1. All 8 the same, the learned Senior State Attorney expressed his view on it saying that there was no contradiction but the evidence complemented each other. We agree with him for PW1 who inspected PW2 on the spot saw bruises in the vagina which is also the substance of the evidence contained in the PF3. Hie doctor did not say bruises. He said that there was evidence of forcible penetration which is the same thing. The complaint was thus baseless which we dismiss. On the complaint that the transfer order appearing at page 45B was defective, it was submitted that section 256 A (1) of the Criminal Procedure Act (now section 273 (1) of the CPA) and section 45 (2) of the Magistrates Court Act (the MCA), cited in the transfer order, did not give the Judge power to make the transfer order making the transfer order illegal. That, the illegality in the transfer order went to the proceedings, judgement, conviction and sentence imposed on the appellant. In reply, it was submitted by the learned Senior State Attorney that, the complaint is misconceived because, section 45 (2) of the MCA gave the Judge power to make the transfer order. The Senior State Attorney did not see any problem in citing section 256A (1) of the CPA in the transfer order in line with section 45 (1) of the MCA. 9 We agree with the learned Senior State Attorney that, transfer of appeals from the High Court to the Resident Magistrates Court to be heard by a resident magistrate with extended jurisdiction is done under section 45 (2) of the Magistrates Courts Act which states: "(1) The High Court may direct that an appeal instituted in the High Court be transferred to and be heard by a resident magistrate upon whom extended jurisdiction has been conferred under subsection (1)." [Emphasis supplied] This provision deals with appeals. It has no role in transfer of criminal cases triable by the High Court in its original jurisdiction. The transfer of criminal cases tried by the High Court in its original jurisdiction, is done under section 273 (1) of the CPA which reads thus: "273 (1) The High Court may direct that the taking o fplea and the trial o f an accused person committed for triai by the High Court, be transferred to, and be conducted by a resident magistrate upon whom extendedjurisdiction has been granted under subsection (1) o f section173. ” [Emphasis supplied] See Mussa Njile Masanilo & 4 Others v. Republic [2025] TZCA 682 and Abel Emmanuel Kadoda v. Republic [2025] TZCA 1082 on transfer of cases. 10 The issue now is whether the citing of section 256A (1) (now section 273 of the CPA) in a transfer order involving an appeal was correct, and if not, whether it was fatal. We have the view that it was an error but it was not fatal so long as the enabling provisions were cited. We find it as a slip of the pen curable under section 411 of the CPA. The complaint is baseless and we dismissed it. Finally, there is the complaint that there was unexplained delay to charge the appellant. It was submitted that there was a delay to charge the appellant for more than one month which prejudiced the trial of the appellant. The appellant did not give details but the record shows that he was arrested on 17.07.2020, the date he was alleged to rape "IJ" but brought before the trial court on 14.08.2020, which was a span of 27 days. It was submitted in reply by the learned Senior State Attorney that, the law requires an accused person to be sent to court within 24 hours of arrest or within reasonable time as the case may be. Making reference to the evidence of PW6 appearing at page 24 of the record of appeal, he submitted that, much as the appellant was arrested on the same day, the police had a duty to conduct investigation, given the seriousness of the crime, to ascertain if he was the one who committed the crime. He contended that, conducting an investigation in a serious case like rape ii was necessary and constituted good cause for the delay. Making reference to our decision in Eliapenda Zephania Zakaria v. Republic [2024] TZCA 728, he submitted that the appellant was not affected by the delay because he pleaded to the charge, heard the evidence from witnesses and could cross examine them. He also had a chance to give his defence. On our part, having considered the rival submissions of the parties on this complaint, we think this matter should not detain us much. The position of the law in this area is settled that generally a delay in arraigning an accused does not vitiate the trial and the resultant conviction of the appellant. At most it can give raise to a claim for damages in a civil suit. See Eliapenda Zephania Zakaria (supra) where it was stated that: "It is also our considered view that, deiay in arraigning an accused person, if established, might constitute a cause in a claim for damages for curtailment of persona! iiberty but not for the same to be raised as a ground of appeal in invalidating the trial. We thus find that ground 1 o f appeal is baseless and dismiss it accordingly." [Emphasis supplied] See also Paulo Machandi v. Republic [2022] TZCA 430, Gabriel Lucas v. Republic [2021] TZCA 703, Isaya Msofe v. Republic [2022] TZCA 147 and Omary Amanzi vs Republic [2024] TZCA 1240. 12 We share the views of the Senior State Attorney that, there was good cause for the delay in this case and dismiss the complaint. That said and done, the appeal is found devoid of merit and dismissed. DATED at DODOMA this 19th day of March, 2026. L. J. S. MWANDAMBO JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL L M. MLACHA JUSTICE OF APPEAL The Judgment delivered virtually this 20th day of March 2026 in the presence of the Appellant in person - unrepresented, Ms. Tusaje Samwel, learned State Attorney for the Respondent / Republic and Ms. Anna Utou, Court clerk, is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 13