John Edward vs Republic (Criminal Appeal No. 254 of 2024) [2026] TZCA 254 (5 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: LEVIRA, J.A., MDEMU. J.A. And ISSA. l.AA CRIMINAL APPEAL NO. 254 OF 2024 JOHN EDV/ARD ........................................................................ APPELLANT VERSUS REPUBLIC.................................................................................RESPONDENT (Appeal from the decision of the Resident Magistrate's Court of Mwanza at Mwanza) (Shao. PRM-Ext. Jur.^ dated the 14th day of July, 2023 in RM Criminal Appeal No. 19 of 2023 JUDGMENT OF THE COURT 23rd February & 5th March, 2026 ISSA, J.A,: The appellant, John Edward was tried and convicted by the District Court of Nyamagana at Mwanza (the trial court) for the offence of rape contrary to sections 130 (l)(2)(e) and 131 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 28th December, 2020 at Nyakato National area within Nyamagana District in Mwanza Region, the appellant had carnal i

knowledge of a 17 years old girl whom we shall call PW1 or victim. The appellant pleaded not guilty to the charge. The prosecution fielded four witnesses to prove the charge and after a full trial the appellant was convicted as charged and sentenced as stated earlier. The facts of the case depict a love story between the appellant, a 20 years old lad and the victim aged 17 years who was born on 3rd July, 2005. Their love affair started in December, 2020 when the victim was a Form III student at Mhandu Secondary School. On 5th March, 2021 the victim was asked by his family to go to the shop to buy necessities, but she lost track of time and returned home very late. Her parents were very angry and intended to punish her for that behaviour. The victim run away from home and took refuge at the appellant's house. The duo then moved to the house of the appellant's aunt at Masanza Corner in Simiyu Region where they cohabited for one month and nine days. Their stay was cut short by the police arrest which took them to Masanza Police Station and then transferred to National Police Station. The legal machinery was put in motion and the victim was given PF3 (exhibit PI) which she took to Buzuruga Government Health Centre for medical examination. Although the doctor did not testify at the trial, the PF3 reveals that on examination there was no laceration, no discharge, the vaginal orifice was patent, but there was evidence of old penetration.

John Michael Kayanda (PW2) who is the father of the victim narrated that, he became aware of the intimate relationship between her daughter and the appellant on 25th February, 2021. He added that, on 5th March, 2021 the victim was asked to go to the milling machine, but she did not return home. Hence, on 8th March, 2021 he and his wife reported the incident to the Police Station and to the victim's school. On 13th April, 2021, the appellant and the victim were arrested at Masanza Corner in Busega District. They were brought back to Nyakato Police Station where the victim was given a PF3 for medical examination. WP 7407 DC Mwajuma (PW3) was the investigator of the case. She received the case file on 14th April, 2021 when the appellant was already in police custody. She recorded his cautioned statement which was admitted as exhibit P3 after trial within trial. The trial court overruled the three objections raised by the appellant that: the cautioned statement was taken out of time, he was not accorded his rights and he was forced to sign the cautioned statement. Bigambo Chegelo Mkama (PW4) was the last prosecution witness who testified that, he is a militia man at Masanza Corner and he arrested the victim and the appellant in his area on 13th April, 2021 and he handed them over to the Nyakato Police Station.

The appellant, in his defence, denied knowing the victim or having any relationship with her. He testified that, he was arrested at his work place at Byola Ndongo where he worked as a fisherman. The militia men arrested him on the charge that he had stolen properties in his room, namely: a deck, TV, and buffer, but he was not taken to his room, instead they boarded Msolasa bus and he was taken to Nyakato Police Station at Mwanza. The trial court found the prosecution evidence was sufficient to sustain the charge. Its findings were supported by the evidence of PW1 and that, it was sufficiently corroborated by the evidence of PW2 and PW4. The trial court convicted and sentenced the appellant on the strength of the evidence of those three witnesses, which it found to have proved the case against the appellant beyond reasonable doubt. The appellant lodged an appeal to the High Court of Tanzania at Mwanza which was heard by Principal Resident Magistrate (PRM) with Extended Jurisdiction who sustained the appellant's conviction, sentence and dismissed the appeal. Undaunted, the appellant has instituted the instant appeal. Initially, on 11th January, 2024, he lodged a memorandum of appeal containing two grounds of appeal. On 15th August, 2024, he lodged a supplementary memorandum of appeal containing four grounds of appeal. Again, before hearing of the appeal on 17th February, 2026, he lodged another

supplementary memorandum of appeal containing four grounds of appeal. For the reason that will be apparent shortly, we will not reproduce the grounds of appeal the way they were lodged in Court. When the appeal was called on for hearing, the appellant appeared in person and was fending for himself. Upon inquiry, he allowed counsel for the respondent Republic to submit first and reserved a right to rejoin, if a need arises. The respondent Republic was represented by Ms. Gisela Alex Banturaki, learned Senior State Attorney assisted by Mr. Mahambega Elias Mtiro, and Ms. Brenda Elisha Mayala, learned State Attorneys. Ms. Banturaki out-rightly expressed her stance to support the appeal on 1s t ground of the 2n d supplementary memorandum of appeal which, reads thus: "Thatthere is variation between the particulars of offence and the evidence adduced: the victim alleged they were lovers since 2020 December, then seduced on 05/05/2021, but the charge indicates was raped on 28/12/2020 of which nowhere in her evidence it was established. This error is enough to determine this appeal." Ms. Banturaki admitted that, there was variation between the particulars of offence and the evidence adduced. She submitted that, the charge reveals that the offence was committed on 28th December, 2020,

but on page 16 of the record of appeal, the victim testified that they were lovers since 2020 and he seduced her on 5th March, 2021. She then went to his house and they moved to Masanza Corner in Simiyu. Nowhere in the evidence, it was shown that she was raped on 28th December, 2020. Further, PW2 testified that the victim disappeared on 5th March, 2021 and was arrested on 13th April, 2021. She concluded that, it was the duty of the prosecution to amend or substitute the charge, but nothing was done. She fortified her argument by citing the Court's decision in Elias Kandomaso v. The Republic [2025] TZCA 757, where the Court stated that, when the prosecution failed to prove the offence was committed on particular dates, the offence is therefore not proved. In this case, the appellant was set free. Again, she cited the case of Matiku Thomas v. The Republic [2024] TZCA 666, where there was a similar finding by the Court. She concluded that, they were supporting the appeal and urged the Court to quash the conviction and set aside the sentence. The appellant had nothing of substance to add, he prayed to the Court to set him free. Upon our perusal of the record of appeal, it is clear that the charge stipulated that the offence of rape was committed by the appellant on 28th December, 2020. Unfortunately, the evidence on record does not support this finding. The victim testified that they were lovers since 2020 and the appellant seduced her on 5th March, 2021. In fact, this is the date 6

in which she went to appellant's house and they started living together. Further, PW2 testified that he was aware of the intimate relationship between the victim and the appellant on 25th February, 2021, but the victim disappeared on 5th March, 2021 and was arrested on 13th April, 2021. None of the prosecution witnesses said anything about 28th December, 2020. Therefore, it is as clear as a blue sky that, the charge against the appellant was not proved. We therefore find that, the prosecution case was shaken to its root as the variance between the particulars of the offence in the charge and the evidence in the record was evident and was not remedied by amendment of the charge as provided for under section 251 of the Criminal Procedure Act, Cap. 20 R.E. 2023 (the CPA). There is no doubt in our minds that, the evidence in the record of appeal was not brought in line with the particulars of the charge. Dealing with similar situation, the Court in Sylvester Albogast v. The Republic [2016] TZCA 238 stated: "This, is not, however to say that prosecutors cannot make mistakes in drafting charges. But where there are such mistakes, the law has also provided a solution. The remedy, as suggested by this Court in Leonard Raphael and Another v. The Republic, Criminai Appeal No. 4 o f 1992

(unreported) is that:-"Prosecutors and those who preside over criminal trials are reminded that when, as in this case, in the cause o f trial the evidence is at variance with the charge and discloses an offence not laid in the charge, they should invoke the provisions o f section 234 o f the CPA 1985 and have the charge amended in order to bring it in fine with the evidence." In the instant appeal, the variance between the charge and the evidence are significant and the variations would have necessitated amendment to the charge to bring it in line with the evidence. If the trial and the first appellate court considered those variations, they would have seen the need to amend the charge, but the issue was not raised in the trial court and was not a ground of appeal in the 1s t appellate court. But since it was an issue of law, it was correctly argued in the second appeal in terms of section 6 (1) of the Appellate Jurisdiction Act, Cap. 141 R.E. 2023 reading together with rule 72(3) of the Tanzania Court of Appeal Rules, 2009 as amended. In Idrisa Omary v. The Republic, [2021] TZCA 448, the Court expressed the position of law with respect to raising new grounds of appeal on the second appeal. It stated:

"Section 4(1) o f the Appellate Jurisdiction Act , Cap. 141 R.E. 2019 (AJA) reading together with Rule 72(2) o f the Tanzania Court o f Appeal Rules, 2009 (the Rules), the Court has no power to deal with grounds which were not raised before the first appellate Court unless . " Therefore, based on this principle, we allowed the parties to discuss the above ground of appeal. Reverting to the question of variation of the charge and evidence on record,, we are of the settled view that, the variations mentioned above went to the root of the prosecution case. It is well settled that, in such a situation, failure to amend the charge is fatal and prejudicial to the appellant. There is a plethora of cases where the Court has maintained this stance. To mention few: Mohamed Juma @ Mpakama v. The Republic [2019] TZCA 518, Noah Paulo Gonde and Another v. Republic [2020] TZCA 269 and Issa Mwanjiku @ White v. The Republic (supra). In fine, we are of the considered view that the charge against the appellant was not proved to the required standard. Hence, for the foregoing reasons we allow the appeal, the conviction is hereby quashed

and the sentence is set aside. The appellant is to be released from prison forthwith unless held for other lawful purposes. 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 Simon Joss, learned State Attorney for the respondent/Republic and Mr. Ladislaus Msuba, Court Clerk, is hereby certified as a true copy of the original / j . - A A. S. CHjJJGULU DEPUTY REGISTRAR COURT OF APPEAL 10