Nuru Jonas Mwampashi vs Republic (Criminal Appeal No. 559 of 2022) [2026] TZCA 300 (10 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: MKUYE. 3.A.. RUMANYIKA. 3.A. And AGATHO, 3.A.) CRIMINAL APPEAL NO 559 OF 2022 NURU JONAS MWAMPASHI..................................................................APPELLANT VERSUS THE REPUBLIC.................................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Mbeya) (Nqunvale, J.) dated the 18th day of July, 2022 in Criminal Appeal No. 115 of 2021 JUDGMENT OF THE COURT 24"’ February & 10'1 ’ March, 2026 AGATHO, 3.A.: The appellant, Nuru Jonas Mwampashi, a 27-year-old resident of Mbebe village in Ileje District, Songwe Region, was accused of engaging in unlawful sexual intercourse with a 16-year-old Form three student from Mbebe Secondary School on January 1, 2020, at around noon near the Katendo River. The encounter resulted in the victim becoming pregnant. Around May 2020, the appellant allegedly abducted the victim and lived with her as husband and wife in Mbozi District until August 2020, when he provided her with bus fare to return home. Upon her return, she

disclosed the relationship to her parents. On September 6, 2020, she gave birth to a baby girl at Tunduma Health Centre and orally named the appellant as the father but put another name (Imma Kilembe) which is according to her, fictional, in the clinic card and the birth certificate. The incident was reported to the police, leading to the appellant's arrest on 27th September, 2020. He was charged in the District Court of Ileje at Itumba with two counts: rape under sections 130(1), (2)(e), and 131(1) of the Penal Code [Cap. 16 R.E. 2019] and impregnating a schoolgirl under section 60A (1) and (3) of the Education Act [Cap. 353] as amended. After a full trial, on 5th November, 2021, he was convicted of rape and sentenced to 30 years' imprisonment but acquitted of the impregnation charge. Aggrieved, the appellant appealed to the High Court (Criminal Appeal No. 115 of 2021), challenging the conviction on grounds including failure of the prosecution to prove the case beyond reasonable doubt, inadequate evaluation of evidence, disregard of his defence, and the victim's lack of credibility. The High Court dismissed the appeal, upholding the conviction after re-evaluating the evidence. The court found the victim's testimony credible, corroborated by witnesses (including the landlord and relatives where they cohabited), sufficient to prove penetration, the victim's age (under 18), and the appellant's identity. 2

Dissatisfied, the appellant lodged this second appeal to the Court. For reasons that will become apparent shortly, we will not reproduce all grounds of appeal contained in the amended and supplementary memoranda of appeal. Instead, the first ground of appeal in the amended memorandum of appeal and the first and second grounds in the supplementary memorandum of appeal will be paraphrased and addressed. In the amended memorandum of appeal, the first ground of appeal states:

1. That, the two courts below erred in [law] and fact in grounding the conviction o f the appellant without taking into consideration that the prosecution side failed to prove its case beyond a ll reasonable doubts. Along with the above, the two grounds of appeal in the supplementary memorandum of appeal are as follows:
2. That the first appellate court erred for its failure to see that the allegation by the charge sheet that on 01/01/2020 at about 12:00 [hours] the appellant had sexual intercourse with the victim (PW1) was not supported by evidence adduced as to leave both the allegation and charge sheet unproven.
3. That the lower court[s] erred in law and fact for failure to see that when a specific date and time 3

is m entioned in the charge it is incum bent upon the prosecution to lead evidence that on that specific date and time the accused com m itted the offence, failure to do so leaves the charge unproven and the accused m ust be acquitted, short o f that a failure o f justice w ill occur ( ref: Francis Fabian @Emmanuel v. Republic, Crim inal Appeal No. 261 o f2021 [2023] TZCA). When the appeal was called on for hearing, the respondent Republic had the services of Mr. Joseph Mwakasege, learned State Attorney whereas the appellant was present in person and unrepresented. The appellant opted for the learned State Attorney to make a reply submission and he will rejoin afterward if need be. Earnestly, Mr. Mwakasege supported the appeal as the charge was not proved beyond reasonable doubt on two bases: first, the evidence of the victim was incredible, and second, the charge sheet and evidence were at variance. He eventually implored the Court to quash the conviction, set aside the sentence and set the appellant at liberty. The appellant welcomed the learned State Attorney's concession and urged the Court to set him free. In determining the appeal, we shall concentrate on the critical grounds of appeal, that is, the first ground in the amended memorandum

of appeal and the first and second grounds of appeal in the supplementary memorandum of appeal embodying the issue whether the case was proved beyond reasonable doubt. Considering the seriousness of their repercussions, we shall begin by addressing the issue of variation between the charge sheet and the evidence. And if we are satisfied that there is such variance what the consequence is. Thereafter, and if not superfluous, we shall examine the credibility of the victim (PW1) as the prosecution's star witness. To begin with, the complaint in the first ground of appeal in both memoranda of appeal is that the charge was not proved beyond reasonable doubt. Upon our perusal of the record especially page 1 of the record of appeal, we are inclined to agree with the learned State Attorney that the charge sheet and evidence are at variance. Whereas the charge sheet indicates that the offence was committed on 01/01/2020, the evidence of PW1 is that on 01/01/2020 she felt symptoms of being pregnant. That is also apparent on page 10 of the record of appeal. We find it illogical that if they had sexual intercourse on 01/01/2020 the victim would become pregnant instantly and feel pregnancy symptoms. Mr. Mwakasege conceded that the credibility of PW1 is doubtful, she did not name the assailant in early possible opportunity as held in Marwa 5

Wangiti Mwita v. Republic [2002] TLR 379. Therefore, we agree with him that there is doubt on credibility of PW1. • As correctly submitted by Mr. Mwakasege while referring to page 9 of the record of appeal, that the victim claimed to have felt symptoms of pregnancy on 01/01/2020, which was also the date the charge sheet states to have been the date when an unlawful sexual intercourse took place, we think, PW1 was saying indirectly that the sexual intercourse was never done on 01/01/2020 as the charge sheet purports to be. It was done much earlier. We conclude that the charge sheet and evidence varied. The effect of the variance between the charge sheet and the evidence is that the charged offence is rendered unproven. That is the position in several of the Court's decisions including Mashaka Kashinje v. Republic [2024] 1215. Sadly, the charge sheet was not amended. We are fortified by the Court's decision in Barnaba Bazilia Honoli v. Republic [2024] TZCA 997 that it is incumbent upon the prosecution to prove a specific date and place of commission of offence mentioned in the charge sheet. In the case at hand the variance of dates in the charge sheet and the evidence is crystal clear. Consequently, the charge was never proved. 6

In event, we find merit in the appeal. We allow it. The conviction is quashed and the sentence imposed on the appellant is set aside. We order his immediate release from prison unless continues to be held for other lawful causes. DATED at MBEYA this 9th day of March, 2026. R. K. MKUYE JUSTICE OF APPEAL S. M.RUMANYIKA JUSTICE OF APPEAL U. 1 AGATHO JUSTICE OF APPEAL Judgment delivered this 10th day of March, 2026 in the presence of the appellant in person, Mr. Augustino Magessa, learned State Attorney for the Respondent/Republic and Mr. Shafii Kassim, Court Clerk is hereby certified as a true copy of the original. I. C. M. MAGESA PUTY REGISTRAR CdURT OF APPEAL