Lalahe Karoli vs Republic (Criminal Appeal No. 463 of 2023) [2026] TZCA 247 (5 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: MWANPAMBO. J.A.. MWAMPASHI, J.A. And MLACHA J.AJ CRIMINAL APPEAL NO. 463 OF 2023 LALAHE KAROLI ...................................................................... APPELLANT VERSUS THE REPUBLIC................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania Manyara Sub- Registry at Babati) (Bgrthy^J.) dated the 8th day of June, 2023 in Criminal Appeal No. 22 of 2023 JUDGMENT OF THE COURT 23rd February & 5th March, 2026 MLACHA, J.A.: In the District Court of Simanjiro at Orkesumet, the appellant, Lalahe Karoli was charged with rape contrary to Section 130 (1) (2) (e) and 131 (1) of the Penal Code, Cap 16 of the Revised Edition 2019. It was alleged that on unknown date in December 2021, at Loswaki Village within Simanjiro District, Manyara Region, he had an unlawful sexual intercourse with a giri aged 14 years who, for purposes of preserving her modest, shall be referred to as "ML" or the victim. He was convicted and sentenced to the i mandatory sentence of 30 years in jail. His first appeal to the High Court was dismissed. The prosecution case was built on three witnesses and one exhibit, the PF3. The summary of the evidence presented before the trial court was as follows. Anjela Andrea Matinda (PW2), an official of an NGO called NAFGEM, charged with fighting female genital mutilation and early pregnancy based in Simanjiro District, Manyara Region, received a tip from an informer on 6/1/2022 that the appellant had married a young girl. She communicated with the head office in Moshi and arranged to arrest him. On 8/1/2022, PW2, Honorata Nasua (the Program Manager), Beata Lyamuya and the Police moved to arrest the appellant. They met him at his homestead. The victim was in the Kitchen cooking food. They put him under arrest and sent him to the Police Station. They also picked the girl who turned out to be the victim and sent her to the Police Station after telling her that they were good people who had come to save her. They later took her to Moshi. The story of the victim was that while at home on 17/12/2021 two adults called her aside. After a short dialogue, they put her on a motorcycle and moved to the homestead of the appellant. She was received by the senior wife of the appellant who covered her with a Khanga ,cloth and 2 welcomed her. The victim was aware of marriage arrangements made between the appellant and her parents. She was also aware that bride price involving some cows and crates of soda had already been paid. She stayed with the senior wife from 17/12/2021 to 29/12/2021 when she was released to the appellant. She then cohabited with the appellant from 29/12/2021 up to 8/1/2022 when she was picked from the kitchen and sent to the Police Station and then to Moshi. She said that she had sex with the appellant during the period she stayed with him. Dr. Juma Shaibu Mkeso (PW3) who examined the victim could not see anything unusual in her vagina save that there was no hymen. In view of the absence of hymen, he concluded that there was penetration by a blunt object. None of the Police officers testified. In his sworn defence, the appellant told the trial court that the victim was his wife whom he had married lawfully from her parents. She paid bride price in the form of cows and 4 crates of soda. He denied raping her. Both Saitabo Karoli (DW2) and Ester Masiaki Kuresoi (DW3) supported the appellant that there was no rape but a lawful marriage. Despite accepting to marry and being found with the victim, the appellant denied to have sex with her. The trial court was impressed by the evidence from the victim which was supported by PW2 and PW3 that the appellant had sexual intercourse with the victim who was aged 14 years, bellow the statutory age of 18 years. It could not find substance in the defence of the appellant which was rejected. It convicted and sentenced the appellant as intimated above. The finding of the trial court received the blessing of the High Court hence the instant appeal. The appellant had two memoranda of appeal; the original and the supplementary memorandum, both comprising 10 grounds of appeal, but the determination of this appeal turns on ground two of the supplementary memorandum. The appellant appeared in person, fending for himself, whereas the respondent Republic was represented by Ms. Mary Lucas, learned Principal State Attorney. When Ms. Lucas was invited by the court to express her readiness for the hearing of the appeal, she told the Court that she supported the appeal on ground two of the supplementary memorandum of appeal which raises the complaint that there was no evidence to prove the offence beyond reasonable doubt. Amplifying, she submitted that, despite the fact that the age of the victim was proved by the complainant who said that she was born on 17/12/2007 meaning that she was 14 years old on 17/12/2021 and the existence of the evidence of the victim and the doctor establishing penetration, coupled with the identification of the appellant which was done by PW1 and PW2, yet there are contradictions and inconsistencies in the prosecution case which were not cleared. Amplifying, she submitted that, both PW1 and PW2 said they picked the victim from the house of the appellant on 8/1/2022 and sent her to the Police Station and then to the hospital, on the same day, but the doctor said she received her on 18/1/2022. This fact is also reflected in the PF3 which was issued by the Police on 18/1/2022. She contended that, it is not clear why it took 10 days to take her to hospital and why did PW1 and PW2 say that she was taken to hospital on the same day contrary to the evidence of the doctor. She went on to submit that, there is no explanation why the Police who received the victim and issued the PF3 could not come forward to testify leaving the case in the hands of NAFGEM officials. She contended that the investigator and the Police who issued the PF3 and sent the victim to hospital were material witnesses in this case, who could clarify the differences between the evidence of PW1 and PW2 on the one hand and that of the doctor on the other hand. She cited our decision in William Felix Kulaya and Another v. Republic [2025] TZCA 283 and urged the Court to draw an adverse inference on the evidence of the victim and find her incredible. She submitted that there are chances that the victim was penetrated by some other people. The learned Principal State Attorney submitted further that, there is variance between the charge and the evidence in that, whereas the charge says that the victim was raped in on unknown date, the victim said it was between 29/12/2021 and 8/1/2022. She contended that the appellant was prejudiced in his defence because the date of commission of the crime was not disclosed in the charge until later during trial. She went on to submit that the Republic had a chance to amend the charge under section 251 (1) of the CPA but couid not do so. Relying on our decision in William Kulaya (supra) she contended that, failure to amend the charge to reflect the actual date of commission of the crime was fatal. In conclusion therefore, the Principal State Attorney submitted that, the prosecution case had doubt which should have been resolved in favour of the appellant. She urged the Court to quash the conviction, set aside the sentence imposed on the appellant and set him free. The appellant being a layman could not have anything meaningful to submit. He urged the Court to set him free based on what had been submitted by the learned Principal State Attorney. We have examined the record and considered the submission of the learned Principal State Attorney. The gist of her submission was that, although there was evidence establishing age of the victim, penetration and identity of the culprit, yet, there were problems in the evidence and the charge which rendered the case unproven beyond reasonable doubt. Her concern in respect of the evidence was on three areas. One, the reason why the victim could not be sent to hospital on the same day; two, the contradiction in evidence on the date on which the appellant was sent to hospital and; three, the reason why the Police could not be called to testify. She also faulted the prosecution for failure to amend the charge to show the date of commission of the crime in line with the evidence of the victim. We will start with the contradictions and inconsistencies in the evidence. We are aware that, in a second appeal, such as this one, we can interfere with the findings of fact by the courts below if we are satisfied that the findings of facts were based on a disregard of an established principle or practice, misapprehension of evidence, omissions to consider available evidence, a misapprehension of applicable law and/or misdirection or none directions on the evidence. We can also interfere on being convinced that the appellants were not given a fair hearing by the courts below. See Emilian Aidani Fungo @ Alex & Another v. Republic, [2009] TZCA 135 followed in Samwel Daud & Another v. Republic, [2023] TZCA 2236. Our look at the decisions of the lower courts have shown that they did not address the contradictions and inconsistencies in the evidence as submitted by the learned Principal State Attorney. We will thus step into the shoes of the lower courts and evaluate the evidence to see if it has contradictions and inconsistencies as submitted by the learned Principal State Attorney. The evidence of PW1 appearing at page 12 reads in part as follows: "We stayed up to 8/1/2022, Then the sister o f NAFGEM came with a car. They had aiready arrested the accused at his father's home. They picked me and we came to Police Station. I was taken to hospital, I was medically examined. I was taken to Police Station. I wasinterrogated and taken to NAFGEM Centre at Moshi . " [Emphasis supplied] The evidence shows that the victim was picked from the appellant's house on 8/1/2022 and sent to the Police Station together with the appellant. She was later taken to hospital after receiving the PF3, where she was examined before she was interrogated and taken to NAFGEM offices Moshi. This evidence is in line with the evidence of PW2 appearing at page 15 of the record of appeal who said that they picked the victim from the appellant's Boma and sent him to the police station together with the appellant who was handcuffed. They obtained a PF3 and took the victim to hospital. The evidence of PW1 and PW2 does not tally with the evidence of the doctor (PW3) who said at page 23 that he examined the complainant on 18/1/2022. This is also the date of issue of the PF3 as reflected at page 34 of the record of appeal proving that the victim was indeed sent to hospital on 18/1/2022. There is therefore a contradiction on the date on which the victim was sent to hospital. Taking the evidence of PW3 as correct, two questions may arise. One, why did it take 10 days to take her to hospital and; two, why the police from the gender desk could not be called as a witness. We could not get answers to these questions from the evidence on record. This goes to the credibility of PW1 and PW2. We think if the High Court could have examined the evidence in the way we have done, it could find that the evidence of PW1 and PW2 left much to be desired with the conclusion that the case was not proven beyond reasonable doubt. Further, we share the views of the learned Principal State Attorney that, the Police (from the gender desk) were material witnesses and it was not proper to leave them out. We see no reason as to why the case was left to the exclusive domain of an NGO. Their absence raises doubt in the prosecution case. Finally, we agree with the learned Principal State Attorney that after the evidence of PW1 who gave specific dates on when she was raped, i.e. between 29/12/2021 and 8/1/2022, it was important to amend the charge under section 251 (1) of the CPA to reflect the date of the commission of the crime. This was not done creating a variance between the charge and the evidence which was fatal to the prosecution case because it goes to the proof of the charge. We therefore agree with the learned Principal State Attorney that there was no evidence to prove the offence beyond reasonable doubt. We vacate the decisions of the lower courts, quash the conviction and set aside the sentence imposed on the appellant. He shall be set free unless lawfully held on some other cause. DATED at ARUSHA this 4th day of March, 2026. L. J. S. MWANDAMBO JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 5th day of March, 2026 in the presence of the Appellant in person and Mr. Philbert Morrison Msuya, learned State Attorney for the Respondent / Republic and Mr. Anna Utou Court clerk, is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 10