Michael Solo vs Republic (Criminal Appeal No 70 of 2023) [2026] TZCA 296 (11 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA ( CORAM: MKUYE. J.A.. RUMANYIKA. J.A. And AGATHO. J.A.) CRIMINAL APPEAL NO 70 OF 2023 MICHAEL SOLO............................................................................. APPELLANT VERSUS THE REPUBLIC........................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Mbeya) (Monqella, J.) dated the 20th day of December, 2022 in Criminal Appeal No. 148 of 2022 JUDGMENT OF THE COURT 3rd & 11th March, 2026 AGATHO. J.A. In the District Court of Mbeya at Mbeya, the Appellant, Michael Solo, 64 years, was charged with rape contrary to sections 130 (1) (2) (e) and 131 (1) of the Penal Code R.E. 2019. The prosecution alleged that on 30th April, 2022, in Pambogo area within the District and Region of Mbeya, the appellant had carnal knowledge of one MS (name withheld) a girl of 9 years, who is his granddaughter. i

Despite the appellant's denial of the charges, the trial court ultimately found him guilty and sentenced him to life imprisonment. The prosecution's case relied on the testimonies of four witnesses and one exhibit, the PF3. The victim (PW1) testified that between 1s t January, 2022, and 30th April, 2022, her grandfather (the appellant) repeatedly raped her at their home in Pambogo, Mbeya. She described how the appellant would enter the room where she slept with her grandmother while wearing only a towel. According to her account, he would remove her underpants, remove his own towel and boxer, lie on top of her, and insert his penis into her "peeing area," moving up and down until he finished the ordeal. PW1 explained that she remained silent for months because the accused squeezed her neck to prevent her from yelling and used threats and intimidation to ensure she kept the acts a secret. The incident came to light on 2n d May, 2022, when PW l's teacher, PW2, was informed by a stranger woman of the abuse. PW2 testified that upon summoning and questioning the child, PW1 broke into tears and emotionally revealed the details of the sexual assaults. This account was supported by PW3, a Social Welfare Officer, who noted that the child was so traumatized that she requested to be removed from the residence 2

because she no longer felt safe. The medical evidence was given by PW4, a doctor who examined PW1 and found that her hymen was gone and her vagina was perforated. PW4 opined that it was not normal for a child of her age to lack a hymen and concluded her vagina had been penetrated by a blunt object. The appellant (DW1) vigorously denied the allegations, claiming they were a fabrication and that the child had been coached to concoct the story. His primary defence was an alibi based on a tight work schedule that, he argued, left him with no opportunity for the crimes. He testified that he worked daily shifts as a security guard at night and as a caretaker for the Mbeya City Council graveyard during the day. He further claimed that his wife was always present at home, though he later admitted under cross-examination that she regularly left for casual labour between 9:00 AM and 4:00 PM. The appellant's wife (DW2) and the victim's sister (DW3) testified in support of his defence. DW2 initially claimed to be at home consistently but eventually conceded during cross-examination that she was often away for work as hinted above. DW3, PWl's sibling, supported the claim that the accused's schedule was too busy to allow for the alleged acts. 3

After a full trial, the trial court was satisfied that the prosecution has proved the case to the hilt while noting that there was no prior personal grudge between the appellant and his granddaughter that would motivate a false accusation. The appellant was thus convicted and sentenced to life imprisonment. Aggrieved, the appellant though unsuccessfully, appealed to the High Court. Still disgruntled, he appealed to this Court on the following grounds:

1. That, the first appellate court erred in law when dismissed the appellant's appeal without considering and evaluating deeply the whole prosecution case and the defense including petition of appeal with its submission filed by the appellant.
2. That, the first appellate court erred in law when dismissed the appellant's appeal [while] the prosecution failed to proof its case as per law as follows: a. None of the family ofPW l got the first report of such crime as PW1 testimony shows that was in good relationship with her sisters and her grandmother. b. PW1 [did] not [scream] or [tell] her relatives earliest of occurring of such rape failure to do so her evidence was doubtful. 4

c. Her evidence PW1 casts a shadow of doubt as per evidence of PW4 this one hasn't any hymen and he didn't see any new penetration as per law. 3. That, the High court Judge erred in iaw when dismissed the appellant appeal without regarding the defence from DW1, DW2 and DW3 which shake the credibility of PW. Before the hearing commenced, and with leave of the Court, the appellant presented his supplementary memorandum of appeal containing five more grounds of appeal as listed below: 1 . That the prosecution failed to bring before the trial court an essential witness called Mama Nasri. 2. The first appellate court erred in iaw to dismiss the appellant's appeal while there is [not] any information about delay to report the [incident] to the police station and to send the victim at the Hospital for examination. 3. That the victim did not tell anybody about the [incident] according to her evidence hence Mama Nasri where he got this story. 4. That the 1st appellate court erred in iaw when dismissed the appeal of the appellant basing on contradictory evidence from prosecution side. 5. That the prosecution side failed to prove the charge beyond reasonable doubt. 5

When the appeal was called on for hearing, the appellant fended himself whereas the respondent Republic was represented by Mr. Alex Mwita, Mses. Naomi Mollel and Hannarose Kasambala, learned Senior State Attorneys, assisted by Mr. Dominick Mushi, learned State Attorney. The appellant adopted his grounds of appeal and let the learned State Attorney respond first and thereafter he will rejoin if need be. At the outset, Mr. Mushi informed the Court that they oppose the appeal. He then premised his submission based on the evidence on record and supported the decisions of lower courts. He in the end beseeched the Court to dismiss the appeal for lacking substance. In rejoinder the appellant lamented that he was busy with his work as a guard. He contended that the case was fabricated. He eventually urged the Court to consider his grounds of appeal, allow it and set him free. As grasped from the grounds of appeal and submissions made, we are settled that the issue for determination is whether the case was proved beyond reasonable doubt. The complaint in the first ground of appeal in the main memorandum of appeal is that the prosecution and appellant's evidence 6

as well as the appellant's petition of appeal was not considered and evaluated deeply. Looking at the record of appeal, we agree with Mr. Mushi that this ground is unfounded because on page 84-85 especially on page 85, the High Court evaluated the evidence of the victim (PW1); and that of PW2 is analysed on page 86. Moreover, PW1 testified that the appellant found her in the room, he took off his towel and undressed her and raped her. The first appellate court on page 86 of the record of appeal properly evaluated the evidence of PW2 (the teacher). The witness testified on how she detected the appellant ordeal. On the same page the High Court evaluated the evidence of PW4 - the doctor who testified that he did not find the victim virgin. He expected to find her virginity intact due to her tender age. On that note, the first ground of appeal is dismissed for lacking merit. The appellant's complaint that his grounds of appeal in the petition of appeal were not considered, is equally disputed by Mr. Mushi because on page 57 of the record of appeal, the petition is found, there were four grounds, but the advocates who represented the appellant submitted on first and third grounds of appeal as seen on page 83 of the record of 7

appeal, the High Court considered the second and fourth grounds as abandoned because the counsel did not make any submission on them. As for the first and third grounds in *the petition of appeal, the first appellate court examined the allegation of the case not being proved beyond reasonable doubt. That is evident on page 84 of the record of appeal. Along with that, is the third ground of appeal in which the appellant complained that his defence was not considered, this is false. On pages 87-88 of the record of appeal the High Court ably evaluated the testimony of DW2 and DW3 and came to its conclusion. We are mindful of the principle that it is one thing to summarize evidence of both sides including defence and quite another to objectively evaluate and reject it for being incredible or not to consider the evidence at all. See- the case of Leonard Mwanashoka v. Republic [2015] TZCA 294. In the present appeal, the first appellant court considered the defence and found it to have material contradictions and incredible. Therefore, the allegation that the defence was not considered is non-starter. We concur with the learned State Attorney that the complaint lacks substance. It is dismissed. On the second ground of appeal in the main memorandum of appeal, which is reflected in the second, third and fifth grounds of appeal 8

in the supplementary memorandum, the complaint is that the case was proved beyond reasonable doubt. Beginning, the appellant complains that victim did not report the incident to her sister or grandmother at earliest possible opportunity. Mr. Mushi conceded that PW1 did not do so. However, on page 15 of the record of appeal, the victim (PW1) testified that when the appellant was raping her, he threatened to beat her if she discloses it to other people. On page 16 of the record of appeal, the victim testified that she was afraid to tell her grandmother because the appellant told her to keep it in her heart. On page 19 of the record of appeal (PW2 - the teacher) testified that she asked PW1 what happened she started crying and when she inquired as to why she was crying the victim said if she discloses it to her the appellant will harm her. However, after PW2 probed and became close to her she opened up and told her the tribulation. Moreover, the appellant faulted the credibility of the victim's evidence as she did not raise alarm during the incident. Although PW1 did not testify that she raised alarm for help, her testimony as captured on page 15 of the record of appeal is that the appellant laid on top of her and squeezed her neck so that she could not yell for help and such evidence was not challenged. 9

Further to that, the appellant challenged the testimony of PW4 (doctor) that he did not see any new bruises, and that the victim was not virgin. While it is true that PW4 on page 25 of the record of appeal testified based on his examination of PW1 that she was not virgin and had no bruises and no blood in her vagina, we agree with Mr. Mushi that considering the tender age of the victim, the witness expected to find her to be virgin and that her virginity was removed by a blunt object that penetrated her. We thus do not find any merit in this complaint. Cementing that the proof was beyond reasonable doubt, Mr. Mushi revisited the ingredients of the offence of rape as per the evidence on record. He contended that firstly, penetration was proved as per PWl's testimony apparent on page 15 of the record of appeal. She testified that the appellant inserted his male sexual organ into her genitalia. As for age, PW2 testified that the victim was aged 9 years and was born in 2013. PW4 also testified that the girl he examined was aged 9 years. With regard to who committed the offence, PW1 testified that the appellant raped her as seen on page 15 of the record of appeal. Mr. Mushi recited the principle in Selemani Makumba v. Republic [2006] TLR 379 that the best evidence is that of the victim and in this case the trial court found PW1 to be credible, as the tears were dropping on her cheeks when she was 10

testifying. That is seen on pages 14 and on page 15 of the record of appeal, and the court recessed as the victim was weeping, he urged the Court to dismiss the second ground of appeal. We find sense in the learned State Attorney's submission, but we wish to emphasize that the above evidence must be balanced with the prosecution's duty to call material witnesses to testify. We shall thus determine this in due course. The third ground in the main memorandum of appeal is about the complaint that the appellant's defence through DW2 and DW3 was not considered. However, we agree with Mr. Mushi that the High Court considered the defence (the evidence of DW2 and DW3) on page 87-88. The High Court found that the evidence of defence had material contradictions. Therefore, this ground has no merit it should be dismissed. On the fourth ground of appeal in the supplementary memorandum of appeal, the appellant complained that the lower courts erred to convict him based on contradictory evidence of prosecution. We have perused the record and found that there was no contradiction in the evidence of PW1- PW4. Should there be any contradiction that would be minor not going to the root of the matter as articulated by Mr. Mushi. The second ground of appeal in the supplementary memorandum of appeal will not detain us much because the complaint that there was ii

delay in reporting the incident lacks substance considering that the victim did not disclose her agony to anyone early. It was until when a stranger informed PW2 about the incident. We therefore dismiss this ground. With regards to the first and third grounds of appeal in the supplementary memorandum of appeal, the appellant assails the lower courts findings for Mama Nasri being a key witness was ‘not called to testify. We, however, disagree with Mr. Mushi's contention that this witness was neither material on the prosecution nor mentioned by the prosecution witnesses. We shall explain why. On page 63-77 and 84 of the record of appeal at the High Court the name Mama Nasri is visible. Moreover, on page 84 of the record, the High Court, observed that during preliminary hearing at page 10 of the record of appeal, Mama Nasri was said to be the one who informed the victim's teacher one Ester Joel @Kajela who testified as PW2. The learned State Attorney submitted that the issue was brought up by the appellant's advocate, but such submission is not part of evidence. Therefore, it was his contention that the issue of Mama Nasri is unfounded as it did not emerge from the evidence on record. But with due respect to Mr. Mushi, we have noted just like the High Court did that Mama Nasri was mentioned in the material facts during preliminary hearing. It was bewildering to us that PW2 testified 12

that on page 19 of the record of appeal that a lady-stranger told her about the incident while the material facts mentioned Mama Nasri as the one who told her. We understand that material facts are not evidence but once the name of the informer is mentioned therein, she ought to be called to testify. For clarity, we will reproduce relevant excerpts from the material facts and the High Court judgment. On page 10 of the record appeal the material facts states: "...On the 2n d May 2022 the victim's teacher one Ester Joei @Kajela received information from one Mama Nasri who informed her that, the victim was raped by the accused person (her grandfather)..." The issue of Mama Nasri emerged also in the High Court, as the first appellate court. On page 84 of the record of appeal, the High Court while admitting that Mama Nasri was mentioned in the preliminary hearing as the one person who set the whole case in motion dismissed the complaint in the following manner: "It is true from the record that during PH the said "Mama Nasri" was mentioned as the one who informed the victim's teacher about the incident However, what is considered in entering conviction is the evidence adduced during trial ." 13

Although we agree with the High Court Judge that as a general rule conviction is based on evidence, the issue of failure to call a material witness is critical in criminal justice administration. In this case the entire ordeal came to light through Mama Nasri. Had she not informed PW2, the secret would have remained buried in the hearts of the victim and the assailant. In our settled view and without sugarcoating, Mama Nasri's testimony would have unearthed and cleared the doubts posed by the appellant's defence. It would have supported the victim's evidence. We noted in this case that the victim failed to name the appellant at the earliest opportunity. See- Marwa Wangiti Mwita v. Republic [20021 TLR 379. As a result, her credibility lessened despite alleging that she was induced by the appellant not to divulge the wicked secret. Moreover, the principle in Selemani Makumba (supra) that the best evidence in sexual offences comes from the victim does not apply where the said victim is incredible. In the end, it is our informed finding that Mama Nasri was a material witness and the prosecution's unexplained failure to parade her as a witness before the trial court constrains us to draw an adverse inference that should that witness be called upon to testify the charge would have been dismantled as held in Jummane s/o Marco v. Republic [2020] 14

TZCA 228; and Idrisa Salehe Mwangobola v. Republic [2025] TZCA 1299. We thus find merit on the first and third grounds of appeal in the supplementary memorandum of appeal. In the premises, we allow the appeal, quash the conviction and set aside the sentence imposed upon the appellant. We further order his immediate release from prison unless continues to be held for other lawful reason(s). DATED at MBEYA this 10thday of March, 2026. R. K. MKUYE JUSTICE OF APPEAL S . M.RUMANYIKA JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL Judgment delivered this 11th day of March, 2026 in the presence of the appellant in person, Ms. Imelda Aluko, learned State Attorney for the Respondent/Republic and Ms. Jasmin Kazi, Court Clerk is hereby certified as a true copy of the original.