Tatee Kritan vs Republic (Criminal Appeal No. 88 of 2024) [2026] TZCA 330 (20 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: MWANDAMBO, 3.A.. MWAMPASHI. J.A. And MLACHA. 3.A.T CRIMINAL APPEAL NO. 88 OF 2024 TATEEKRITAN .......................................................................... APPELLANT VERSUS THE REPUBLIC ......................................................................... RESPONDENT (Appeal from the Resident Magistrate's Court of Arusha (Extended Jurisdiction) (G. E Mariki. PRM Ext. Jurist dated the 23r d day of November, 2023 in Criminal Appeal No. 22 of 2023 JUDGMENT OF THE COURT 24th Feb & 20th March, 2026 MWANDAMBO. J.A.: The appellant was convicted of rape by the District Court of Ngorongoro at Loliondo and sentenced to 30 years imprisonment. His first appeal before the High Court at Arusha was dismissed for lacking in merit. He has now preferred this second and final appeal before the Court in his quest to vindicate his innocence. From the evidence accepted by both the trial court and the first appellate court, it was common cause that, on 2 December 2022, an adult i

woman whose identity is concealed to be referred to as the victim or PW1 in this judgment was carnally known by the appellant without her consent. The appellant's contest before the trial court and the first appellate court has been that there was no evidence to link him with the charged offence. He continues to raise the same issue before the Court in this appeal. Briefly, the evidence upon which, the trial court found the appellant guilty and convicted was to the following effect. On the evening of 2 December 2022, about 19.30 hours, PW1 who had come from her errands at Loliondo town was heading towards home at a place called Orkiyu. Later on, a man surfaced from behind at Loliondo playground proceeding to the same direction. In the course of the journey, the man who happened to be familiar to PW1, asked her to which boma she belonged to which she replied, albeit mentioning a different one. Moments later, PW1 who was walking in front, allowed the man behind her to take the lead but he declined. Unsuspectingly, PW1 proceeded towards the destination walking ahead of the stranger. To her surprise, that man who she later mentioned to her son by name as the appellant attacked PW1 and grabbed her in the bushes adjacent to the road. According to PW1, soon after attacking her, he undressed her before he had sexual intercourse with her. Immediately after the act, he disappeared leaving behind the victim in a state of fear and desperation. Within moments, she 2

rushed home with just her skin tight leaving behind her skirt and a Maasai sheet wear and proceeded to sleep outside the house where she was found by her son; Kone Bisili (PW2). Despite PW2 asking her on what had befallen her, PW1 could not respond. PW2 took the victim to her bedroom and left. Early in the morning of the following day, PW2 inquired again from PW1 whereupon she narrated what had happened to her in the hands of the appellant who happened to be familiar to him. Afterwards, PW2 took her mother to Loliondo Police Station where she made a complaint and attended by H. 4305 PC Joseph (PW4) who also gave her a PF3 before proceeding to a Health center and examined by Doctor Vasco Sanga (PW3). After the examination of the victim's vagina, PW3 concluded that there was penetration by a blunt object judged from existence of bruises and blood in the inner vaginal walls. PW3 posted his findings from the examination in the PF3 admitted in evidence as exhibit PI. Even though the trial court doubted the evidential value in the PF3, it found PW3's oral evidence sufficient to corroborate PW l's evidence on penetration. Subsequently, PW2 pursued his mother's assailant and arrested him and was taken to the Police Station and eventually tried with the charged offence involving four prosecution witnesses. Apart from his own sworn testimony, the appellant called five witnesses in support of his defence of 3

alibi. He denied having been anywhere near the scene of crime on the material evening. Nevertheless, the trial court found that defence too weak to ruin the case for the prosecution which it found well founded and proved beyond reasonable doubt before convicting and sentencing him. On appeal, the Resident Magistrate's Court at Arusha (G.E. Mariki, PRM- Ext. jurisd.) exercising extended jurisdiction concurred with the trial court on the appellant's guilt and sustained his conviction as well as the sentence now challenged in this appeal. The appellant faults the impugned decision on six grounds of complaint but in essence, they boil down to the main complaint that the case against him was not proved beyond reasonable doubt. By and large, the appellant seeks to impugn the concurrent findings of fact by the two courts below inviting the Court to interfere with them in this second appeal. However, it must be stressed at this stage that, it is trite law for which we need not cite any authority that, the court in a second appeal as it were, has very limited power to interfere with concurrent findings of the courts below unless it be established that such findings were a result of misdirection, misapprehension or non- direction of vital evidence occasioning miscarriage of justice. The rationale for that proposition can be found from our decisions, amongst others, Michael Elias v The Republic, Criminal Appeal No.243 of 2007 (unreported), in which the 4

Court stressed that the reluctance from interference with the concurrent findings of fact by the two courts below is premised on the assumption that such findings are based on a correct appreciation of the evidence. That means, if it be established that both courts misapprehended the substance, nature and quality of evidence resulting in an unfair conviction, the Court must interfere in the interest of justice. The two courts below concurred in the guilt of the appellant having been satisfied with the evidence that the prosecution proved the necessary ingredients of the offence of rape, that is; penetration and lack of consent and that the perpetrator was no other than the appellant. Whether the appellant's invitation meets the above criteria will be determined in due course in the process of our discussion of the grounds of appeal. The appellant appeared in person at the hearing of the appeal. Ahead of the hearing, he had lodged in Court a document titled "Ufafanuzi wa Sababu za rufaa" freely translated as elaborations on the grounds of appeal akin to a statement of written arguments permissible under rule 74 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules) which he invited the Court to consider in support of the appeal. On the adversary,

Ms. Janeth Sekule and Mr. James Pallangyo, learned Senior State Attorneys, appeared to represent the respondent Republic. As mentioned earlier, the appellant's memorandum of appeal comprises six grounds of appeal. However, they largely fault the first appellate court for concurring with the trial court in convicting him in a case in which the evidence did not prove the charge beyond reasonable doubt contrary to the provisions of section 3 (2) of the Evidence Act. Specifically, the appellant faults his conviction on the following areas of complaint; one, weak evidence of identification; two, variance between the charge and evidence; three, PW l's doubtful credibility; four, contradictory evidence; and, five, failure to consider defence evidence. In his elaborations, the appellant sought to argue all grounds conjointly. All the same, he only canvassed the 1st, 2n d , 3rd and 4th grounds raising complaints involving lack of proof of the charge beyond reasonable doubt, poor identification, variance between the charge and evidence and PWl's alleged doubtful credibility. He made no argument on the 5th and 6th grounds in relation to failure to resolve contradictions among prosecution witnesses and failure to consider defence evidence. The substance of the appellant's submission on all the first four grounds rested on the complaint that the evidence with which he was 6

convicted fell below proof of the charge beyond reasonable doubt, primarily, due to weak evidence of identification through PW1. That is so considering that, the incident occurred late in the evening during which, it was not easy for the victim to identify the person who allegedly attacked and raped her, The appellant criticized the first appellate court for relying on PW l's evidence which lacked vital details to be acted upon to wit; explanation on the intensity of the light which enabled her identify the assailant and a description of the person who attacked her including the clothes he wore. That was notwithstanding PW l's evidence that the appellant was familiar to her which he contended to be insufficient to prove that the identification was watertight. He cited the Court's decision in Abel Emmanuel @ Kadoda v. Republic [2025] TZCA 1082 in which the Court reiterated the conditions for water tight evidence of identification underscored in Waziri Amani v. Republic [1980] TLR 250. Replying, Ms. Janeth Sekule who addressed the Court was resolute that the appellant's complaint was baseless. Counsel was insistent that, PW1 sufficiently identified the appellant who was familiar to her. Besides, the duo spent long time between the place the appellant joined PW1 on the journey to the place he attacked her and committed the offence. It was her further submission that, PW1 named the appellant to PW2 early in the morning the following day and subsequently to PW4 at the police

station. She too drew our attention to a discussion of the trial court in its judgment at page 47 and 48 in which it warned itself of the danger of convicting the accused based on evidence of visual identification unless satisfied that the conditions for unmistaken identity are met. She thus invited the Court to sustain the concurrent findings of fact by the two courts below on PWl's identification evidence. Upon our examination of the record, we note that the appellant did not make any specific complaint on weak identification evidence before the first appellate court. There is thus no basis upon which we can say that the first appellate court strayed into error. All the same, as submitted by Ms. Sekule, the trial court was alive to the danger of acting on visual identification evidence in unfavourable conditions unless all possibilities of mistaken identity are eliminated. Aware of the caution made in the Court's decision in Waziri Amani reiterated in Shabani Bakari v. Republic, [2015] TZCA118, it stated: " l a m alive that the victim did not state the intensity and source o f light which aided her to make correct identification o f the accused person during trial however such failure does not erode the truth that PW1 identified the accused person from the time they started the journey at Loliondo playground. After reaching home PW1 did not end there, on

3/12/2022 she mentioned the name o f Tatee s/o Kritani (accused person) to PW4 (at Loliondo Police Station) as the one who raped her on 2/12/2022. PW1 mentioned as well the clothes (masaai shuka and trouser) which the accused person wore at the time o f incident During hearing o f this case, the accused did not dispute the clothes mentioned by the victim." [ at page 48 and 49 o f the record]. With respect, we are in agreement with the above finding as correct and well supported by evidence on record. We find no basis to interfere with that finding and dismiss the appellant's complaint in the 1st ground. Next, the appellant made his argument on the complaint premised on variance between the particulars in the charge and evidence. According to him, the variance relates to reference to theft of TZS 5,000.00 from the victim after the rape incident in the facts read to the appellant during the preliminary hearing. He argued that, such facts contradicted her own evidence that the appellant searched her polyethene bag to find out if it had money and threw it away. On the other hand, the appellant pointed out variance between the place the offence was committed; Orkiyu village shown in the particulars of the offence as opposed to Loliondo playground according to PW l's evidence. Relying on the Court's decision in Boniface Nyerere Senda v. Republic [2024] TZCA 803, the appellant urged that, 9

he was convicted on a defective charge due to the variance warranting the Court's interference with the conviction. Ms. Sekule downplayed the complaint as baseless. To begin with, she contended that reference to theft of TZS 5,000.00 was misconceived because that would have been relevant had the appellant been charged with and convicted of armed robbery. Despite Ms. Sekule's argument on the discretion vested on the prosecution to prefer charges, we must state outright here that this complaint is misconceived. We say so because, what matters is not the facts read during the preliminary hearing rather, particulars of the offence in a charge in relation to the evidence adduced by the prosecution. At any rate, unlike the appellant, the charge is not rendered defective by reason of variance between the particulars and the evidence but rather, the charge becomes unproven. With regards to variance as to the scene of crime, Ms. Sekule was steadfast that none existed and we respectfully agree with her. It is glaring that, according to PW l's evidence, whereas the appellant joined her at Loliondo playground, the offence was committed away from that place. PW r evidence is too clear to suggest that the appellant attacked her at Loliondo play ground and sustain the appellant's complaint that the case 10

against him was not proved on account of variance as to the scene of crime. Tiiere is no merit in this complaint and we dismiss it. The appellant's argument on PW l's credibility, subject of the third ground of appeal was premised on the same complaint on the place the offence was committed in accordance with the charge and PWl's evidence. He added that, PWl's change of hearts on the place the offence was allegedly committed reported to the police as Loliondo playground which contradicted her own evidence that it was at Orkiyu village dented her credibility. According to him, PWl's failure to name the assailant she claimed to be familiar with until next day spoke volumes of her credibility. The learned Senior State Attorneys invited the Court to decline entertaining it because, credibility was in the domain of the trial court which found the witness credible and concurred by the first appellate court. However, mindful of what we said in Shaban Daud v. The Republic, Criminal Appeal No. 28 of 2001 (unreported), we do not entirely agree with her. It is trite from case law that credibility of a witness is the monopoly of the trial court only in so far as demeanor is concerned. Appellate courts, including the second appellate court as it were, are not precluded from determining credibility of witnesses which can be done in two ways; one, when assessing the coherence of the testimony of that 11

witness. Two, when the testimony of that witness is considered in relation to the evidence of other witnesses, including that of the accused person. The complaint in this appeal is directed against PWl's credibility on two aspects, that is; her evidence on identification in particular, failure to name the assailant at the earliest opportunity and the place the offence was committed. We have already rejected the claim in relation to the variance between the particulars of the charge and evidence on the place where the offence was committed. We shall not deal with this aspect anymore than state that there is no merit in this complaint as it relates to PWl's credibility. Her evidence as to the place the offence was committed contradicted to no other evidence to warrant assailing her credibility. The complaint directed against her alleged delay in mentioning the appellant is equally misconceived. We are alive to what the Court has consistently insisted, remarkably in Marwa Wangiti Mwita and Another v. The Republic [2002] TLR 39 with regards to prompt naming of culprits as an assurance to the witness's credibility. However, the Court did not set any time frame within which the victim of the offence is required to name the offender. Neither are we prepared to set any considering that what is prompt or delay will depend on each particular case. 12

It is common cause in the instant appeal that, PW1 rushed home immediately after the incident almost half naked leaving behind her usual wear; a Maasai sheet and skirt which were retrieved by her younger brother and taken to her the following day. Upon arrival at home, she slept outside the house instead of her usual bedroom and found there later by PW2 but couldn't say anything on what had befallen her. It was until early next morning when PW1 appears to have gained enough courage to disclose the ordeal to her own son and the culprit behind it. It is equally common ground that, PW1 named the appellant to PW4 who arrested the appellant the same day. Pertinently, the trial court discussed this aspect and stated: " Again, the victim mentioned the name o f the accused person as her rapist to PW2 on 3/12/2022 morning and she mentioned the same name o f the accused person to PW4(poiice officer) at Loliondo police station on 3/12/2022 before the accused person [was] arrested. Thus, the victim complied with principles stated in the case o f Yusta Lula v . RepublicCriminal Appeal No. 337 o f 2025... I am o f the considered view that, there was no lapse o f time between the alleged rape and the time when the accused person was mentioned hence no doubt on the credibility o f PW1. Therefore, the defence 13

made by the accused person has no merit "[at page 55 and 56 o f the record]. In view of the foregoing, we are not prepared to say that there was any delay by PW1 mentioning the appellant to PW2 in the morning on 3 December 2022 thereby denting her credibility. The complaint has no merit and is dismissed. Although the appellant did not address the Court on the 6th ground of complaint in relation to failure to consider defence evidence, Ms. Sekule urged the Court to dismiss it. That is so in view of the fact that the same was considered by the trial court as evident at pages 49 to 52 of the record of appeal and found to be too weak to have ruined the case for the prosecution It is remarkable that, the appellant's main defence was alibi claiming that he was not anywhere near the crime scene at the material time. The trial court considered that defence and rejected it as can be seen at page 55 of the record of appeal. It reasoned that, the distance between the scene of crime and the place where the appellant claimed to have been at the material time was proximate enough for him to have committed the offence and rushed to that place. The same complaint was made on appeal before the first appellate court which dismissed it 14

concurring with the trial court. We thus agree with the learned Senior State Attorney that the complaint lacks merit and we dismiss it. That said, the appeal is devoid of merit and we dismiss it. 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 Judgment delivered this 20th day of March, 2026 via Virtual Court 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 15