Jackson Naiko vs Republic (Criminal Appeal No. 280 of 2024) [2026] TZCA 328 (19 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: KOROSSO. J.A., MASHAKA, 3.A., And NGWEMBE, J.A.) CRIMINAL APPEAL NO. 280 OF 2024 JACKSON NAIKO............................ . ......................... * ................ APPELLANT VERSUS THE REPUBLIC . ............................................. . ......................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania, Manyara Sub- Registry at Babati) ( Kahvoza, JO dated 16th day of February, 2024 in Criminal Appeal No. 70 of 2023 JUDGMENT OF THE COURT 25th February & 19th March, 2026 NGWEMBE, J.A.: This is a second appeal by Jackson Naiko, the appellant, who appeared before the District Court of Kiteto in Manyara Region, charged with Incest by Male contrary to section 158 (1) (a) of the Penal Code Cap 16 R.E. 2019 (the Penal Code). It was alleged that on 25th day of December, 2021 at Ndaleta Village, Kiteto District in Manyara Region did have carnal knowledge with his daughter aged 17 years who by then, was a pupil of Njoro Secondary School. To conceal the victim's identity and for the purposes of protecting her privacy, we shall henceforth refer l to her as 'the victim' or simply 'PW1' as she so testified before the trial court. When the charge was read over and explained to the appellant he pleaded not guilty. However, on the facts constituting the offence, he admitted that, the victim was his biological daughter and that he lived with his five daughters and a wife in two rooms. Otherwise, he disputed other facts including that he used to fight his wife and chased her to sleep in the kitchen to give way for him to sleep with his daughters. After full trial, the appellant was convicted and sentenced to thirty (30) years imprisonment In a nutshell, the prosecution case as retrieved from the record of appeal, can briefly be stated that: the victim testified that her father had two wives but her mother separated with the appellant in 2012 but remained with his daughters namely Stella, Zawadi, Furaha and the victim together with the second wife. It was the victim's revelation of grief episodes that after separating with the victim's mother, the appellant told the victim, that she should be undertaking the duties of her mother to him, including being his wife to cover her mother's absence. A sequence of incidents of rape loaded up. She stated that the appellant would come home drunk and beat her up. Many times, when he comes back, he would just pick one of his daughters to his bed and rape her. 2 The victim had been raped for years. Rape committed at home and sometimes in the hut located in the appellant's farm which is situated at Ndosoito, she narrated. She further testified that the last incident that led to the offence charged against the appellant occurred on the night of Christmas on 25 December, 2021. Narrating the incident, she testified that on Friday, the victim and the appellant along with other children went to the farm. Thereafter, the appellant ordered other daughters to return home leaving the appellant and the victim at the farm. The appellant then raped her and thereafter, in the same night, went home. TTie incident of rape was reported to her stepmother Tausi Yassin (PW2) who confirmed to receive the report of rape from the victim but she was afraid to report it anywhere for fear of being killed by the appellant. Elizabeth Jackson (PW3) another daughter of the appellant witnessed her young sister, the victim being molested by her father, the appellant. However, she was afraid to disclose it to anyone as they were warned that he would kill them. Moreover, it was testified that on 10 January, 2022 at the appellant's home, one Leokadia John, the young sister of PW2 and aunt to the daughters visited their home. During her stay, on 10/01/2022 she heard and witnessed one of the rape incidents, thus reported the same to the 3 village chairman, then to Kibaya Police Station. At the Police Station they were received by WP 6861 CpI Neema (PW4) on 11/01/2022 where a PF3 was issued and PW4 accompanied the victim to Kiteto District Hospital where she was examined by Dr. Archimedes Mpemba (PW5) on the same date and found the victim to have no hymen. The PF3 was admitted at trial as exhibit PI. On 12/01/2022 the appellant was arrested and arraigned in court. When the charge was read over and explained to him, he pleaded not guilty to the offence of rape. At trial, when he was found to have a case to answer, he briefly defended as follows: "PW1 is my daughter, I didn't rape her, I cannot do such a sin o f having sexual intercourse with my daughter: "Having heard both parties, the trial court was satisfied that the appellant was guilty of the offence of rape, convicted and sentenced him to thirty (30) years' imprisonment together with compensation of Tsh. 1,000,000/- to the victim. He was aggrieved and unsuccessfully, appealed to the High Court complaining on two grounds, that, the offence was not proved beyond reasonable doubt, and that, the law was not observed in determining the case. The first appellate court was satisfied that the trial court did not error in its decision hence, upheld the conviction and sentence of the trial court. Undaunted and determined to restore his 4 innocence and liberty, the appellant has appealed to the Court with five grounds of appeal as follows: 1) That ; the first appellate court erred in law and in fact for failure to analyse the evidence on record and find that the prosecution did not prove their case beyond reasonable doubt 2) That, the first appellate court erred in law and fact by convicting the appellant while the evidences on record are in variance with the charge sheet 3) That, the first appellate court erred in law and fact by upholding tria l court decision by convicting the appellant while the respondent failed to call m aterial witnesses to prove their case beyond reasonable doubt 4) That, the first appellate court erred in law and in fact by referring other cases which the accused person has already acquitted by the same court. 5) That, the first appellate court erred in law and in fact for failure to find that the trial court failed to analyse the court record and itse lf failed to analyse the same. When the appeal came for hearing before us, Ms. Alice Thomas, learned Senior State Attorney represented the respondent Republic, while the appellant was present in person and represented by Mr. Joseph Mwita Mniko, learned advocate. Commencing his submission before us, Mr. Mniko adopted the grounds of appeal and the written statement of arguments filed in Court on 9th September, 2024 and proceeded to elaborate on all five grounds 5 seriatim. In the first ground, he argued that the victim failed to specify the date of offence. While the charge indicated the incident to have occurred on 25th December, 2021, the witnesses mentioned different dates including the year 2017. Equally, the medical doctor (PW5) did not state the methodology he used to examine the victim. Submitting on the second ground, Mr. Mniko pointed on the variance of the dates that PW2 testified that she was raped in 2019 while the charge indicated a different date. He cited to us the case of Abel Masikiti v. Republic, (Criminal Appeal No. 24 of 2015) [2015] TZCA 219 (21 August 2015). He pointed out that the possibility of the charge being motivated by conflict between PW2 and the appellant cannot be ignored. In ground three, the learned advocate argued that the Village Executive Officer (VEO) to whom the offence was reported and one Leokadia who alleged to witness the rape incident were material witnesses. He supported with the cases of Aziz Abdallah v. Republic [1991) TLR 71 and Mashimba Dotto @ Lukubanija v. Republic (Criminal Appeal No. 317 of 2013) [2014] TZCA 271 (22 October 2014). Regarding fourth ground, Mr. Mniko submitted that the 1st appellate court, erred in iinking the appellant with other cases which he was 6 acquitted. Since every case had its own evidence and was determined separately, therefore it was improper to link other cases faced by the appellant. On the fifth ground, Mr. Mniko submitted briefly that, the lower courts failed to analyse properly the evidence in the record. The trial court used extraneous matters which were not adduced by witnesses like the alleged rape incident occurred on 11/1/2022. That being the case, the trial and the first appellate courts failed to note that the conviction and sentence were based on the incident of 11/1/2022 as opposed to the incident of 25/12/2022 in the charge. Finally, he implored the Court to allow the appeal because the offence of rape was not proved to the hilt. At the outset, Ms. Alice Thomas intimated to us her stance to oppose the appeal because the offence of Incest by Male was established and proved to the hilt against the appellant. On this, she submitted that the prosecution witnesses availed a credible account on how the victim was sexually molested by her father. Submitting on variance between the charge and evidence, which covers grounds 1 and 2, she insisted that, there were several rape incidents and other witnesses mentioned other dates of rape to the victim, but the last incident of rape which constituted the instant charge was on 25/12/2021 at the farm, when other witnesses were not around and that the victim testified sufficiently on that incident. 7 She maintained that the principle of the true evidence in rape cases comes from the victim is clearly visible in this case. She referred the Court to the case of Bahati Ludoviko v. Republic (Criminal Appeal No. 618 of 2021) [2025] TZCA 76 (25 February 2025) and argued that there was no variance between the charge and the prosecution evidence. Addressing on ground 3, the learned Senior State Attorney was categorical that the said Leokadia would be a material witness on the incident of rape committed on 10/11/2022 but was not a material witness in the incident of 25/12/2021. In regard to the materiality of the VEO, she responded that he was not a material witness since she just received a report of the incident, which same was reported to the police and the police investigator testified in court on the result of her investigation. Therefore, the relevance of VEO could not be more than the investigator. m e learned Senior State Attorney, argued jointly grounds 4 and 5, by referring the Court to page 119 of the record of appeal, where the trial magistrate referred to other cases which the appellant laments that were extraneous. Ms. Alice was quick to admit that was a minor mistake which is curable under section 388 of the Criminal Procedure Act (CPA) as the appellant was not prejudiced. She appreciated also that, the High Court discussed on that aspect and found it was not prejudicial to the appellant. Hence, she implored the Court to dismiss the appeal. 8 In a brief rejoinder, Mr. Mniko reiterated his submission in chief and insisted that, if the alleged rape commenced in 2017 up to 2021, the victim should have reported to the authority. Regarding the extraneous matters, it was his stance that the whole judgment of the trial court was rendered illegal which was incurable under section 388 of the CPA. We take note that this is a second appeal, where usually the Court rarely interferes with the concurrent findings of the courts below save only where there is misdirection on a point of law or facts which occasioned a miscarriage of justice. This was underscored in Beni Wisa v. Republic (Criminal Appeal No. 488 of 2021) [2024] TZCA 1013 (31 October 2024) and Wankuru Mwita v. Republic, Criminal Appeal No. 219 of 2012 (unreported). In the above decisions, the question before we could interfere with the concurrent finds of the two lower courts was whether there was, on the record misapprehensions of evidence, mis direction or non-direction of the evidence, a miscarriage of justice or a violation of some principles of law or practice that warrants us to interfere with the findings based on the complaints raised by the appellant. Having in mind the above principles of law, and upon critical review of the nature of the complaints in this appeal, we find ground 4 should 9 be the first to be disposed of for obvious reasons that if the trial court's judgment had extraneous matters the whole judgment may be illegal and be quashed. See; Athanas Julius v. Republic, Criminal Appeal No. 498 of 2015 (unreported). In case the alleged extraneous matters never existed or were found but were not the bases of the trial court's verdict, the error may be condoned as we did in Mathayo Noah Saningo v. Republic (Criminal Appeal No. 427 of 2020) [2023] TZCA 17984 (15 December 2023). From the trial court's judgment, we find at page 53 of the record of appeal, that the trial magistrate introduced the alleged charge faced by the appellant that the incident occurred on 11th January, 2022 at Ndaleta Village within Kiteto District in Manyara Region that, the appellant raped the victim. However, the relevant charge which is subject of this appeal has a different date, month and year. This complaint was raised in the first appellate court which was comprehensively determined at pages 118 and 119 of the record of appeal. The learned Judge noted that the appellant had several cases before the trial court and before the same magistrate, hence mixing up the facts across case files would be probable. He concluded as follows: 10 'V /7 crim inal case No, 12 o f2022 was charged with an offence o f incest by maie, the particulars o f the offence were different from what the magistrate stated. The fact that the trial magistrate reproduced facts different from the charge did not prejudice the appellant. The court read the proper charge and particulars to the accused and he knew the charge against him. Not only but also, the prosecution led evidence to prove the charge and not what the tria l magistrate stated in her judgm ent The appellant did not suffer any injustice from the error committed by the trial court. Thus, the error is curable under section 388 o f the CPA" We agree with the learned Judge that he made a good observation and that, it was an ordinary error curable under section 388 of the CPA as the proper charge on which the appellant was convicted was clear on the date, month and year of incident. Equally, the prosecution evidence was in respect to the incident of Incest by Male which occurred on 25th December, 2021. In a similar circumstance, we decided that, minor or immaterial errors which do not go to the root of the subject matter and occasioned no miscarriage of justice are curable under section 388 of the CPA. See; Mathayo Noah Saningo v. Republic (supra). This ground is unmerited and we dismiss it. li We have also paid critical consideration of the parties' submission in the third ground which is related with our earlier observation that the appellant was associated with a chain of raping incidents to his daughters. Among them is PW3 who testified to be the victim and that she witnessed her other two sisters being raped by the appellant in diverse dates. Leokadia, whom the appellant's counsel referred to as a material witness, did not witness the rape incident of the victim on 25/12/2021 and other witnesses did not see the appellant molesting the victim on the fateful date of 25/12/2021 save only the victim who experienced the ordeal of rape. Thus, the rationale of the famous rule of true evidence on rape cases comes from the victim is applicable in this case. According to the record of appeal, Leokadia witnessed rape of another victim, the incident which did not constitute the charge in the present appeal. Regarding the fact that the VEO warned the appellant when the incident was reported to her is another complaint of the appellant that she was a material witness. It is on record that PW1 testified to have reported the incidents of rape to the VEO where the appellant was called and warned but he proceeded to rape her. At pages 11 and 12 of the record of appeal, the testimony of PW1 is relevant to be reproduced: 12 "When I was in form two I remember I reported this m atter to the viiiage office and he was taken to the viiiage office and was warned (crying) I told the VEO who was a woman. He prom ised not to repeat again, but when he came back home, he went on raping me every time he w anted" The excerpt above shows that, Leokadia and the VEO were not material witnesses as the appellant's counsel argued. The two heard from the victim regarding a different incident of rape other than that on 25/12/2021. The two could not be material witnesses because they heard from the victim and thus their evidence could not have added value to those called to testify. We are therefore, satisfied that the two were not material witnesses in the instant appeal. Considering jointly on grounds 1, 3 and 5, they all raise the same issue of whether the offence of rape was proved beyond reasonable doubt. The appellant complains that the trial and first appellate court failed to analyse the evidence and as the result, reached a guilty verdict which they would not have reached at, if proper analysis was made. Also, the appellant raised the issue of variance between the charge and evidence. We have already alluded to above that there were several incidents of rape which were not relevant to this case. The instant appeal deals with the offence of rape which occurred on 25/12/2021 as clearly 13 testified by the victim. Other incidents of rape were only connecting to the chain of offences of rape which would not necessarily be excluded by witnesses in their testimonies. Therefore, in the circumstances of this case, we are of the view that there was no variance between the charge and the prosecution evidence. Moreover, the appellant is at one with the testimony of the victim that she was a biological daughter of the appellant, aged 17 years. To prove the offence of Incest by Male, we discussed in the case of Bahati Ludoviko v. Republic (supra), that the offence of incest by male under section 158 (1) of the Penal Code, is committed when a man has sexual intercourse with a woman or a girl with knowledge that she is within the prohibited degree and consent is immaterial. For the purpose of sentence, proof of age of the victim to be below 18 years is material evidence to determine appropriate sentence. In the instant appeal, first the relationship between the victim and the appellant is not disputed that she is a biological daughter of the appellant; second proof of penetration was established by PW1 and corroborated by PW5; and three, her age was not in dispute that she was 17 years' old that is below the age of majority. 14 Despite the fact that the victim failed to report other incidents of rape, that alone did not exonerate the appellant on the incest committed on 25/12/2021. In this matter, the learned State Attorney suggested the application of 'the true evidence in sexual offences comes from the victim' yet the appellant's counsel insisted that failure and delay to report should be considered with credibility of the victim. That, the victim was not a credible witness. On our part, we agree that unexplained failure to report the offence and naming the offender at the earliest opportunity affects the credibility of a witness, but that alone is never absolute, it depends on the circumstances of every particular case. In this appeal, we find the victim's evidence and other prosecution witnesses were consistent, coherent and disclosed a satisfactory reason for delay to report the incidents of rape that, they were threatened to be killed and they had already experienced beating and other acts of cruelty from the appellant. Also, it was testified that the reports were made in the previous incidents of rape to the VEO and the appellant was summoned and warned but in vain. In totality, we are satisfied that the offence of incest by male was established and proved to the required standard. The analysis of the two courts below was sufficient and the concurrent findings were not flawed so as to justify our interference. 15 For the foregoing reasons, we are satisfied that the evidence taken as a whole establishes that the prosecution's case against the appellant was proved beyond reasonable doubt. In the event, we find the appeal destitute of merits and it is hereby dismissed in its entirety. DATED at DODOMA this 18th day of March, 2026. W. B. KOROSSO JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL The Judgment delivered virtually this 19th day of March 2026 in the presence of the Appellant in person, Mr. Michael Martin, learned State Attorney for the Respondent / Republic and Mr. Musa, Court clerk, is hereby o lal. A. S. CHUGULU DEPUTY REGISTRAR COURT OF APPEAL 16