Francis Stephen Mwandenuka vs Republic (Criminal Appeal No. 249 of 2024) [2026] TZCA 261 (5 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: LEVIRA, J.A.. MDEMU, 3.A. And ISSA. J.A.^ CRIMINAL APPEAL NO. 249 OF 2024 FRANCIS STEPHEN M W ANDENUKA ................................................. APPELLANT VERSUS THE REPU BLIC............................................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Kilekamaienaa, J.^ dated the 6th day of October, 2023 in Criminal Appeal No. 92 of 2023 JUDGMENT OF THE COURT 19th February & 5th March, 2026 ISSA, J.A.: The appellant, Francis Stephen Mwandenuka was tried and convicted by the District Court of Ilemela at Ilemela (the trial court) of the offence of unnatural offence contrary to section 154 (l)(a) and (2) of the Penal Code, Cap. 16. Upon convicting the appellant, the trial court imposed a sentence of 30 years imprisonment. The arraignment of the appellant before the trial court was a result of an accusation that, on 11th July, 2022 at Ghana area within Ilemela District in Mwanza Region, the appellant had carnal knowledge of a man aged 26 years, whom we shall call PW1, against the order of nature. The

appellant pleaded not guilty to the charge. The prosecution fielded three witnesses to prove the charge. After a full trial, the appellant was convicted as charged and sentenced as stated earlier. The brief facts of the case as found by the trial court and confirmed by the first appellate court were that, at late night or early morning hours of 11th July, 2022 the appellant had carnal knowledge of PW1 against the order of nature. The series of events commenced on 10th July, 2022, when PW1 at 17.00 hours called his friend Eripidius and sought an appointment to see him. The duo agreed to meet at Ghana; PW1 who was new in Mwanza asked for the place and found it. He met Eripidius who was in the company of the appellant whom he met for the first time. Eripidius and the appellant were drinking alcoholic beverages at the time and PW1 joined them. They continued drinking and chatting until midnight when PW1 suggested that, they move to another entertainment point called Bucket Bar which is more vibrant. The four of them including another person who joined them later, went to Bucket Bar where they continued drinking until they were very drunk. At 4.00 hours, the four of them boarded a three-wheeler and headed to the appellant's house while the fourth person was dropped at Ghana. Upon reaching the appellant's house, Eripidius went to sleep straight away while the appellant and PW1 played a TV game until they were also

tired. The three of them slept on one bed where PW1 was occupying the middle part of the bed. PW1 narrated that, he fell into a deep sleep and was awakened by a severe pain in his anus. When he touched it, he found it was smeared by oil. He awakened Eripidius, but did no wake up. He then pulled up a bedsheet which he was sharing with the appellant and he found him naked with his underwear on his knees while PW l's underwear was in his thigh. It was at that moment that, he realized that he has been carnally known against the order of nature. PW1 started screaming waking up everybody and one neighbour came and broke the door. PW1 went outside and was complaining about what happened. He was taken to the Street Chairman around 06.00 hours where he explained about what happened at the appellant's house. The Street Chairman called a taxi and the trio were taken to Kirumba Police Station where PW1 was given PF3 and headed to Sekou Toure Hospital where he was medically examined by Dr. Muhoja (PW2) at 11.00 hours of 11th July, 2022. His findings were that, there was multiple bruises on his anus and the anal carnal was weak which is the evidence of penetration. The last prosecution witness was WP 5994 D/Cpl. Erina (PW3) who investigated the case. She recorded the cautioned statement of the appellant who admitted that PW1 slept in his room, but denied that he had carnal knowledge of him against the order of nature.

The appellant (DW1), in his defence, denied having committed the offence. He admitted what was stated by PW1, but denied having carnal knowledge of him against the order of nature. He insisted that they were three in the room and it was impossible for him to sodomise PW1. Ethan Anthony (DW2) testified that, he is the neighbour of the appellant and on the fateful day he went to the appellant's room and found the trio drinking alcohol. The appellant bought a soda for him and his friends. He left them at 23.00 hours. He added that he was studying until 05.00 hours when he heard them talking and were looking for food. He met PW1 between 05.00 to 06.00 hours when he went to the toilet. Moment later, he heard noises from the appellant's room and when he entered, he found the appellant with blood stain and on the floor there was a broken glass of alcohol bottle. PW1 was holding a knife while saying you cannot do this to me (haiwezekani mkanifanyia hivi sikubali). PW1 went to report the incident to the Street Chairman. At the end of the trial, the trial court found the prosecution evidence was sufficient to sustain the charge. Its findings were supported by the evidence of PW1 and it was corroborated by the evidence of PW2 who examined him medically. On the strength of that evidence, it convicted and sentenced the appellant to 30 years imprisonment.

The appellant lodged an appeal to the High Court of Tanzania at Mwanza (the first appellate court) in Criminal Appeal No. 92 of 2023 which sustained the appellant's conviction, sentence and dismissed the appeal. Undaunted, the appellant has instituted the instant appeal. Initially, Mr. Deya Paul Outa, the appellant's advocate lodged a memorandum of appeal containing three grounds which read thus:

1. That, the Hon. Judge on first appeal erred in law in holding that there was sufficient light to enable PW1 to see that the appellant was naked im mediately after the incidence while the alleged source o f light is not supported by records.

2. That , the Hon. Judge erred in law to assume that the alleged PW1 's anus smeared with o il was rubbed o ff by the PW1 's clothes, while there was no evidence on record to that effect

3. That, the Hon. Judge on first appeal erred in law by his failure to draw adverse inference against the prosecutions case for failure to call m aterial witnesses. On 16th February, 2026, Mr. Innocent John Kisigiro, another advocate for the appellant lodged a supplementary memorandum of appeal containing four grounds of appeal, namely:

4. That, the first appellate court erred in iaw to convict the appellant while he was brought to court outside the prescribed time contrary to law. 5

5. That, the first appellate court erred in law to convict the appellant while the exhibit PI was adm itted contrary to law that is, no paper trail and chain o f custody established.

6. That ; the first appellate court erred in law to convict the appellant while the charge and evidence are at variance regarding the offence charged with.

7. That, the first appellate court erred in law to convict the appellant while the case has not been proved beyond reasonable doubt to warrant conviction. When the appeal was called on for hearing, the appellant had the services of Messrs. Deya Paul Outa and Innocent John Kisigiro, learned advocates, while the respondent Republic was represented by Ms. Hellen Chuma, learned Senior State Attorney assisted by Mr. Sileo Leonce Mazullah and Ms. Sarah Perius Simtala, learned State Attorneys. Mr. Outa started the ball rolling, he submitted that all grounds of appeal boil down to one ground which is, whether the prosecution case was proved beyond reasonable doubt. Hence, he would argue this ground and in the process he would touch various issues appearing on other grounds of appeal. He started with the issue of visual identification. He submitted that, the record does not show whether the light was on or not when the appellant and PW1 went to sleep. Therefore, it is not clear how did PW1 see if the appellant was naked and his underwear was on his knees . In addition, he

argued that, how did PW1 find out that he had oil on his anus. Furthermore, he argued that the record does not explain about the circumstances of the room to enable us to know if there was sufficient light. There was no doubt, he said, that the room in question had electricity, but the critical issue is whether the light was on. There is no evidence to suggest that the light was on. He concluded that, the first appellate court erred to make assumption on page 107 of the record that, there was light in the room. He argued that, in criminal law there is no guess work or assumption. To support his argument, he relied on the Court's decision in Mohamed Musero v. The Republic [1993] T.L.R. 290. Further, Mr. Outa argued that all these questions remain unanswered because the prosecution failed to call material witnesses. When the incident happened, three persons were in the room. Eripidius was in a good position to clarify some of the facts and he should have been called to testify. Further, the Street Chairman was also not called when the incident was reported to him at the first instance and it is alleged that the appellant confessed t;o him. Mr. Kisigiro added that, there was another witness by the name of Festo who was also not called. He was a material witness who could have explained on what transpired on that fateful day.

Responding the issue of identification, Ms. Chuma admitted that the light and its intensity was not explained by the prosecution witnesses, but was adamant that identification was done properly. She submitted that, the trio met on 10th July, 2022 and they moved around and drunk alcohol. On returning to the appellant's house, Eripidius went to bed earlier while the appellant and PW1 were playing TV game. Finally, the two went to sleep and when PW1 woke up, he felt pain in his anus which was also smeared by oil. He woke up Eripidius but he was asleep. Looking at the appellant, he found his underwear on his knees and when he confronted him, he admitted to have sodomised him and promised to give him money. She submitted that, the appellant was identified because of the set of events while Eripidius was dressed up, the appellant was half naked. She added that, the appellant admitted to give PW1 TZS. 150,000 on page 40 of the proceedings. She wondered why would he agree to part with the money if he did not commit the act. On our part, we are of the view that the issue of identification is crucial. The prosecution case stands or falls on this issue. There is no dispute, Eripidius, appellant and PW1 were together the whole night of 10th July, 2022. They moved around the bars drinking alcohol and ended up in the appellant's room where all three spent the remaining of the night. The

trio slept on one bed in which PW1 was on the middle; the appellant and Eripidius occupied each side of the bed. There is also no dispute that, when PW1 was carnally known against the order of nature, he was unconscious. Hence, unaware of what was going on. Therefore, we agree with the learned counsel for the appellant that, the evidence surrounding sodomy were circumstantial. PW1 was not aware when he was sodomised. He woke up to find himself in severe pain on his anus which was also smeared by oil. He then woke up Eripidius, but he was asleep. It was when he pulled up the bedsheet that, he saw the appellant naked and his underwear was on his knees while PW1 had his underwear on his thigh. PW1 testified that Eripidius was dressed up while he and appellant were naked. This poses another question about how did the trio slept on that fateful night. Did all of them sleep with their underwear except Eripidius or they had their clothes on. The record is silent; we are therefore not sure if the appellant and PW1 were the only persons who slept with their underwear. We cannot rule out a possibility that even Eripidius also slept with his underwear and later put on his clothes. We shall now address the questions of light. There was no doubt that the room had electricity, and the appellant and PW1 were playing TV game before they went to sleep. The question is, did they sleep with the light on

or they switched it off. The record does not provide the answer. Further, assuming the light was off, how did PW1 knew that the appellant was naked or that his anus was smeared by oil. There was another theory, which was believed by the first appellate court as seen on page 108 of the record: "Furthermore, they arrived at home at around 5 am; they piayed games before going to bed. Again, it seems there was a lapse o f some minutes before the incident occurred. In my view, it was early in the morning with dear light to see what happened in the room ." With respect, the above findings are not supported by evidence. The record does not show the circumstances of the room: one, if there are windows, how many of them were there. Two, were those windows opened or not and if there are curtains on the window, were they folded to allow the light inside the room. Without these explanations, we cannot say with certainty that, there was natural lighting in the room. Another issue surrounding identification is the presence of three persons on the bed and how do we exonerate Eripidius from committing the offence. Since, PW1 was unconscious when he was sodomised; any of the 10

two persons on the bed could have committed the offence. Therefore, the issue of identification is still at forefront of the instant case. Another evidence relied upon by the trial court and the first appellate court was that, the appellant confessed about the commission of the offence before PW1, Festo and Street Chairman. Festo and the Street Chairman did not testify at the trial court. Eripidius who was there in the room was also not called to testify at the trial. Further, it was argued that the appellant promised to pay PW1 some money in order to let go what happened. Ms. Chuma took us to page 40 of the record of appeal where appellant on re examination stated: "Your honour the case is unfounded, it was framed against me. Your honour, I wish to tei! the court that I already paid complainant Tsh. 150,000/= through Eripidius who advised me to do so. That's a ll." This statement was given by the appellant during re-examination and it is not clear what was the purpose of the money. The appellant had already denied committing the offence and claimed that the case against him was framed. Further, the money was paid on the advice of Eripidius who was not called to testify at the trial. Therefore, the above statement does not indicate that, the appellant was the perpetrator of the alleged sodomy. Hence, as far as the issue of identification is concerned, we are of the settled

mind that, the appellant was not identified as the one who committed the offence against PW1. Our stance is fortified by the failure of the prosecution to call material witnesses. Eripidius is a material witness who could have clarified many questions such as: one, whether they slept with the light on or the light was off, two, whether there was enough light in the room as it was morning and the window was opened and the curtain folded. Three, he could shed light on how they slept on that particular night; if they had clothes on or were on their underwear. Four, he could have corroborated on the issue of oral confession made by the appellant regarding sodomising PW1, and also could clarify on the issue of appellant paying money to the PW1, as he was the one who advised the appellant to pay and if truly the money went to PW1 through him. Other material witnesses are the Street Chairman and one called Festo. It was claimed that the appellant confessed to commit the offence before these two persons, but none of them was called to testify at the trial court. We are therefore satisfied that these witnesses were material and failure to call them entitle the Court to draw adverse inference against the prosecution case, which we hereby do. 12

We are of the firm view that the appellant was not identified at the scene of crime and the prosecution did not prove the case against him beyond reasonable doubt. Consequently, we allow the appeal on these two grounds and we do not feel necessary to canvass the rest of the grounds of appeal. Therefore, the conviction of the appellant is hereby quashed and the sentence is set aside. The appellant should be released from prison forthwith unless held for other lawful cause. DATED at MWANZA this 4th day of March, 2026. M. C. LEVIRA JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 5th day of March, 2026 in the presence of appellant in person, Mr. John Saimon Joss, learned State Attorney for the respondent/Republic and Mr. Ladislaus Msuba, Court Clerk, is hereby certified as a true copy of the original.