Sharif Sadiki Tandila vs Republic (Criminal Appeal No. 157 of 2024) [2026] TZCA 327 (19 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: MWARIJA J.A.. KENTE 3.A. And MURUKE, 3.A.) CRIMINAL APPEAL NO. 157 OF 2024 SHARIF SADIKI TANDILA ..................... ..........................APPELLANT VERSUS THE REPUBLIC.................................................................RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Dar es Salaam) (Dinq'oi, J J dated the 07th day of November, 2023 in Criminal Appeal No. 103 of 2023 JUDGMENT OF THE COURT 24th February & 19th March, 2026 MURUKE, J.A.: In this appeal, what we are called upon to resolve is whether rescuing a girl child aged 15 years from a brothel, and live with her as a wife, with an intention of marrying her is a defence against statutory rape. The appellant, Sharif Sadiki Tandila, was charged before the District Court of Temeke at Temeke with two counts namely; rape contrary to section 130 (1), 2 (e) and 131 (1) of the Penal Code, (Cap 16 R.E. 2019) and Impregnating a school girl contrary to section 60 (1) (a) (2) of the Education Act No. 2 of 2016. Upon full trial, the appellant was found

guilty, on both two counts, thus sentenced to 30 years imprisonment on each count, the sentences which were ordered to run concurrently. On appeal to the High Court, the conviction on the count of impregnating a school girl was quashed and the sentence set aside, while the conviction on the charge of rape, was sustained hence this second appeal. In summary, the facts of the case were set out by PW2, the victim's mother, who revealed that, her daughter aged 15 years old, a form two student, at Kurasini Secondary School, disappeared from 7th May, to 23r d June 2022. She thus reported the incident to the police and was given a police report book number. On 23r d June, 2022, she was able to find her at Aziz Ally bus stand. Upon being asked, the victim mentioned the appellant, as the person who had been living with her as husband and wife and having sexual intercourse from 7th May 2022 to 23r d June, 2022. She informed the trial court she met the appellant at Tandika. From there they went to a certain hotel for lunch, after which the appellant took her to his house and left. The appellant came back in the evening during which they had sexual intercourse on each day and she stayed for 46 days. She met her mother (PW2) at Azizi Ally bus stand and informed her where she has been living with the appellant. PW2 took her to police, after interrogation, she was given PF3 and went to the hospital. Upon

examination by PW4, a medical doctor, she was found to be 2 weeks pregnant. PW1 called the appellant through a phone on the pretext of settling the hospital's bill, that is when he was arrested. The appellant did not at any stage during investigations, up to the trial, deny having sexual relationship with PW1. He maintained that the sexual relationship was a consented one, and he intended to marry PW1. The only issue he disputed was the age of the victim, claiming that, PW1 disclosed to him that she was 22 years of age. Upon full trial, the appellant was found guilty, on both two counts, thus sentenced to 30 years imprisonment on each count, which were ordered to run concurrently. As stated earlier, on appeal to the High Court, the conviction on the count of impregnating a school girl was quashed and sentence set aside, while the conviction on a charge of rape was sustained. Being dissatisfied, the appellant has fronted 5 grounds which upon examinations, they boil down to the following issues: / . Whether the Name o f the victim differs from the one on the charge sheet ii. Whether age o f the victim was proved beyond reasonabie doubt H i. Whether prosecution proved the case. 3

At the hearing, the appellant appeared in person, unrepresented whereas Ms. Esther Chale assisted by Mr, Omary Mwenegoha, both learned State Attorneys, represented the respondent/Republic. When the appellant was invited to amplify on his grounds of appeal, he prayed to adopt them and the submissions, then, let the learned Senior State Attorney submit first, while reserving his right to respond tater. He implored us to consider and allow all the grounds of appeal, quash the conviction and set aside the sentence, then let him free. On the first issue as to whether the name of the victim appearing in the charge sheet is the same person who testified as PW1, Ms. Chale submitted that at the trial court, the name of the victim was not in dispute at all, and more so, the appellant did not have any questions during trial with regard to the names of the victim. He did not dispute the names of the victim during trial and therefore he is estopped from raising it at this second appellate level. Thus, the respondent counsel moved us to dismiss this ground. According to the record at page 1, it is true that in the charge sheet PWl's surname was shown to be Hamza, while when she testified at page 11 of the record, her surname was written as Hamisi. This is a mere typing error as in the original record, PWl's surname was written as

Hamza, the same as in the charge sheet, reflected at page 1 of the record. The original court record bears witness that the victim testified by that name. To us, this is none issue in going by the original court record. The name Hamisi instead of Hamza is a mere typing error that can easily be ignored, thus we proceed to dismiss this ground for lack of merits. The second issue for consideration is whether the age of the victim was proved. The learned State Attorney in response submitted that, it is without doubt, the victim's age was established through the evidence of her mother PW2, who also tendered the victim's birth certificate. The said birth certificate was tendered and admitted during trial, without objection and even after its admission, the appellant did not raise any questions to the witness as to the age of the victim. To the respondent, the issue of age has been raised as an afterthought, thus she prayed for dismissal of this ground. The appellant on his part, submitted that the victim was 22 years old. He stayed with her after he rescued her from a brothel, after being served three times consecutively by the victim. He said that the sexual intercourse was a consented one, and more so, he intended to marry her. It is common knowledge that in cases involving statutory rape like the one at hand, it is necessary that the age of the victim must be proved.

In the case of Alex s/o Ndendya v. The Republic, (Criminal Appeal 340 of 2017) [2020] 17CA 201 (6 May 2020, TANZLII), the Court stated that: "...in a situation where the appeiiant was charged with statutory rape then, age o f the victim must specificaiiy be proved before convicting the appeiiant ." The Court in its various decisions has reiterated on who can prove the age of the victim. For instance, in Issaya Renatus v. Republic (Criminal Appeal No. 542 of 2015) [2016] TZCA 218; it was held that evidence as to proof of age may be given by the victim, relative, parent, medical practitioner or by production of birth certificate. In the case of Rutoyo Richard v. Republic (Criminal Appeal No. 114 of 2017) [2020] TZCA 298 (16 June 2020); the Court extended to include a close friend and a teacher as reliable witnesses in proving the age of the victim. The Court stated: "We reiterate that cogent evidence reiating to age from the victimparent, dose relative, dose friend, teacher in which she was schooiing or any person who knew w eii the victim was required,

The record at page 14, shows that PW2 the victim's mother who tendered victim birth certificate exhibit PI, testified that the victim was 15 years of age. According to Exhibit PI, the victim was born on 30thJune 2007, thus, by 7th May 2022 to 23r d June 2022, she was still 15 years, therefore below 18 years, resulting in to statutory rape under section 130 (1) and 2 (e) of Cap 16. Equally so, the victim testified at page 11 of the record that she is aged 15 years, and she was a form two student at Kurasini Secondary School. The appellant did not contradict that piece of evidence on the age of the victim. The appellant at page 12 of the record cross examined the victim who replied that: you were dosing me inside your room. That answer shows clearly that the question was not related to the victim's age. It was expected that the appellant would have cross- examined PW1, on such vital evidence incriminating him with the offences charged. But that was not done. It is settled law that a party who fails to cross-examine a witness while testifying is deemed to have accepted that piece of evidence and will be estopped from asking the trial court to disbelieve what the witness said. To the contrary, the appellant completely failed to shake the victim's evidence through cross examination. In the case of Gerson Geteni v. Republic, Criminal 7

Appeal No. 73 of 2021 [2024] TZCA 452 (19 February 2024, TanzLII) it was insisted that " We are aware that there is a useful guidance in law that a person should not cross - examine if he/she cannot contradict. But it is also trite iaw that failure to cross-examine a witness on an important matter ordinarily implies the acceptance o f the truth o f the witness's evidence " We are at one with learned State Attorney that evidence as regards the age of the victim to be 15 years old was proved by PW1 and PW2 who also tendered the victim's birth certificate exhibit PI, without any objection or questions from the appellant. Bad enough, appellant not only did not cross examine the evidence of the victim, but also that of PW2 and the contents of birth certificate that proved the victim to be 15 years old, at the commission of the offence. The last issue is whether the prosecution case was proved to the required standard. The respondent counsel was quick to point out that PW1, PW2 and PW4 proved the offence charged. The law imposes strict liability where the offence of rape is committed with a girl below the age of eighteen years insisting that consent as raised by the appellant is immaterial so insisted the respondent's counsel. The appellant on his

side, maintained that the victim consented to the sexual intercourse to the extent that he wanted to marry her as the victim told her that she is 22 years. Our starting point is at page 24 of the record of appeal regarding the appellant's own defence that he was having sexual intercourse with the victim countless times when they were living at his house as husband and wife when he testified in chief that: 7 did not rape the victim rather the victim is my girlfriend and we planned to marry each other. I recall at the first time I met with the victim at the brothei and she has served me three times before we agreed to stop that immoral business and come at my home to stay with me. Following that agreement, the victim came to stay with me and she stayed with me for only two weeks. After that she fell sick so she told me that she is going to the hospital. While at the hospital she needed me to go there to pay for treatment costs. Following that call I went at the hospital where I was arrested by the police and sent at Maturubai police station where I was informed that I was facing the offence o f rape and impregnating a school. About pregnant what I can say is that victim was not raped and she has no pregnant.

The victim was at the brothel so it was difficult to me to realize that she was a child under 18 years o f age. What I can say is that the victim was at the brothel and did consent to do sexual intercourse." The appellant was charged under section 130 (1) and (2) (e) and 131 of the Penal Code [Cap 16 R.E.2019]. In particular Section 130 (2) (e) provides that: "A male person commits the offence o f rape if he has sexual intercourse with a giri with or without her consent when she is under eighteen years of age, unless the woman is his wife who is fifteen years o f age and is not separated from the man” What is important here is the age of the girl raped. Whether she consented, it is not relevant as long as she was below 18 years of age and not the appellant's wife. To our understandings, the law protects the girl child below 18 years, because she lacks the capacity to consent due to her stage of physical, emotional and cognitive development. As the issue of having sexual intercourse is not disputed, and the issue of age is certain, it is our finding that, the case against the appellant 10

was proved beyond all reasonable doubts. The appeal is without merits, thus dismissed. It is so ordered. DATED at DODOMA this 18th day of March, 2026. A. G. MWARIJA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL Z. G. MURUKE JUSTICEOF APPEAL The Judgment delivered this 19th day of March, 2026 in the presence of appellant in person, unrepresented and Ms. Monica Ndakidemi, learned Senior State Attorney for the respondent/Republic connected via Virtual Court from Dar es Sataam and Ms. Tabitha Mwita, Court Clerk, is hereby certified as a true copy of the original. A. s. ch I jgulu DEPUTY REGISTRAR COURT OF APPEAL ii