Lukeja Ndalahwa vs Republic (Criminal Appeal No. 873 of 2023) [2026] TZCA 250 (5 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA ( CORAM: WAMBALI. J.A.. MAKUNGU. J.A. And MGEYEKWA. J.A.^ 1 CRIMINAL APPEAL NO. 873 OF 2023 LUKEJA NDALAHWA.................................................................APPELLANT VERSUS THE REPUBLIC................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Shinyanga) (Massam, J.) dated the 20thday of October 2023 in Criminal Appeal No. 47 of 2023 JUDGMENT OF THE COURT 19th February & 5th March, 2026 MGEYEKWA, J.A:. The appellant, Lukeja Ndalahwa stood trial before the District Court of Busega at Busega for rape contrary to sections 130 (1) (2) (e) and 131 (1) of the Penal Code. It was alleged that on 31s t December, 2022 at Yitwimila "B" village within Busega District in Simiyu Region, the appellant did have carnal knowledge of a girl aged sixteen years whose identity is concealed, henceforth to be referred to as "the victim" or simply as "PW1", the code name by which she testified. i Briefly, the evidence adduced by the prosecution as per the record of proceedings of the trial court was to the effect that, PW1 was a Form Three student at Masanza Corner Secondary School. In her testimony, she deponed that she had been in a relationship with the appellant since 2022. On 31s t December, 2022, night hours while her mother was away, she and the appellant took advantage of the solitude at her residence. She testified that upon entering the house, they engaged in sexual intercourse. The tryst was interrupted by the arrival of her brother, one Ramadhani Bahati, who knocked at the door. At that material time, the duo had already dressed. PW1 opened the door and let her brother inside the room. His brother asked her who the appellant was, then he locked the door and called his uncle, one Amani Ramadhani (PW3). Enos Bujigire Sahani (PW2), a Hamlet Chairman of Maguge testified that on 1s t January, 2023 around 00:05, he received a call from one Daud Kusekwa, the village chairman who ordered him to go to PW3's house, where there was a person who was arrested inside the house with a student. Upon arriving at the scene with a militia, he found the appellant and PW1 inside the room; the appellant was dressed up and seated on a chair, while PW1 was seated on a mattress. PW2 said he thought the two 2 had sexual intercourse, but he found them dressed up. He interrogated the appellant who denied having sexual intercourse with PW1. PW3 recalled that on the material day during night hours, he received a call from one Ramadhani Bahati (his nephew), who informed him that PW1 was with someone inside the house. Upon his arrival at his house, he saw the Hamlet Chairman and the door was open. They snuck into the room with a torch and managed to see the appellant and PW1. PW2 interrogated PW1, who confessed to being in a relationship with the appellant. Subsequently, PW2 called the police. There was further prosecution evidence from Bayi Elias Nyashimo (PW4), a clinical officer who examined PW1 and confirmed penetration. Following the closure of the prosecution's case, the trial magistrate found that a prima facie case had been made out against the appellant and she placed him on his defence. In his defence, the appellant presented a version of events wholly dissociating himself from the commission of the offence. He recounted that on the material evening, at about 20:00 hours., he rode his motorcycle to transport a sick girl and her mother to Magu Hospital. After leaving them at the hospital, he proceeded to a nearby bar intending to meet a friend. 3 According to his account, while at the bar, he was confronted by a man who questioned him and, without provocation, began to assault him. The man allegedly forced him to his house and locked him inside a room together with a girl. He asserted that it was at that point that he was accused of being found in compromising circumstances with the girl, alleging that they were in a relationship. Thereafter, he was taken to the hospital and subsequently to the police station, where a charge was preferred against him. At the end of it all, the trial court findings were to the effect that the prosecution witnesses presented a credible tale that PW1 was raped and concluded that the appellant's defence was weak and did not establish that PW1 framed evidence that she was raped. Thus, the appellant was sentenced to a term of thirty years' imprisonment. Aggrieved, the appellant unsuccessfully appealed to the High Court, where the trial court's conviction and sentence were upheld. Still undaunted, the appellant has preferred this second appeal. In the memorandum of appeal lodged on 12th April, 2024, he raised two grounds of appeal. Subsequently, with leave of the Court, he filed a supplementary memorandum containing five additional grounds. In essence, the grounds boiled down to three grounds of appeal which may be paraphrased as follows: one, the trial court erred in admitting exhibit PI on account of alleged defects; two, that the prosecution failed to call material witnesses; and three, that the case was not proved beyond reasonable doubt. At the hearing of the appeal, the appellant appeared in person, while the respondent Republic was represented by Mr. Anesius Kainunura, learned Principal State Attorney assisted by Ms. Suzane Masule, learned Senior State Attorney. However, in arguing against the appeal, it was Ms. Masule who took responded to the ground of appeal. She stoutly resisted the appeal. When afforded an opportunity to elaborate on the grounds of appeal, the appellant, besides adopting the grounds of appeal, chose to hear the respondent's submissions first. We shall revert to the details of the parties' arguments in the course of resolving the issues of contention. On the first ground, the appellant assailed the admission of exhibit PI (the PF3), contending that it was improperly tendered. In response, Ms. Masule argued that although the first ground is a new, it is a point of law. She asserted that PW4, the medical officer who examined the victim, duly identified and signed the PF3; that the exhibit was tendered without objection; and the appellant did not cross-examine the witness on its contents. Therefore, it was her submission that this ground is demerit. 5 We have carefully perused the record of the appeal. PW4, being the medical practitioner who examined the victim was the proper witness to tender the PF3. The document bears his signature and was admitted without protest. We find no irregularity in its admission and accordingly agree with Ms. Masule that this ground fails. The first ground is bound to fail and we dismiss it accordingly. On the second ground of appeal, the appellant faults the prosecution for failure to call material witnesses. He contends that Ramadhani Bahati, James Ndege and Daud Kusekwa were crucial witnesses whose evidence was necessary to bridge glaring gaps in the prosecution's case. In reply, Ms. Masule placed reliance on section 152 of the Evidence Act, which stipulates that no particular number of witnesses is required to prove a fact. She submitted that the persons named by the appellant were not material witnesses and that their absence did not occasion any prejudice to the prosecution's case. When invited by the Court to address whether Ramadhani Bahati, James Ndege and Daud Kusekwa were material witnesses capable of linking the strands of the prosecution's narrative, Ms. Masule candidly conceded that there was no clear nexus in the testimony of the prosecution witnesses. Nonetheless, she maintained 6 that the evidence of PW1, as the key witness, was sufficient and had proved the case to the requisite standard. After a careful consideration and analysis of the evidence on record, we wish to state that since this is a second appeal, we take cognizance of the settled law that very rarely does a higher appellate court interfere with concurrent findings of facts by the courts below unless there are misdirection and non-directions on the evidence, a miscarriage of justice or a violation of some principle of law or practice. See Director of Public Prosecutions v. Jaffari Mfaume Kawawa [1981] T.L.R. 149 and Mussa Mwaikunda v. Republic (Criminal Appeal No. 174 of 2006) [2006] TZA 209 (31 August 2006, TanzLII). Having anxiously considered the rival submissions of the appellant and the learned Senior State Attorney, we begin by concurring with Ms. Masule that section 152 (formerly 143) of the Evidence Act does not prescribe any particular number of witnesses required to prove a fact. The obligation resting upon the prosecution is not to multiply witnesses, but to call such evidence as is sufficient to establish the charge beyond reasonable doubt. This principle was succinctly articulated by this Court in in Aziz Abdallah v. Republic [1991] T.L.R. 71. However, where it is shown that certain witnesses were crucial to establishing the chain of 7 events, and their absence leaves discernible lacunae in the prosecution's case, the Court is entitled to draw an adverse inference, particularly where no plausible explanation is proffered for their omission. It is against that settled legal backdrop that we turn to the facts of the present matter. The record of appeal reveals unexplained gaps in the sequence of events as narrated by PW1, PW2 and PW3. Of particular concern is the failure by the prosecution to call material witnesses, namely Ramadhani Bahati, James Ndege and Daud Kusekwa, who were purportedly present at the scene of the crime. Most notable among them is Ramadhani Bahati, who appears to have played a central role in the unfolding of events and was, in fact, listed as a prosecution witness. His absence from the witness stand, without explanation, leaves a conspicuous gap in the prosecution's case. Yet, no explanation was stated for his failure to testify in court. In Boniface Kundakira v. Republic, (Criminal Appeal No. 350 of 2008) [2011] TZCA 456 (14 October 2011, TanzLII), when considering a similar matter, the Court stated that: "...It is now settled that, where a witness who is in a better position to explain some missing links in the party's case is not called without any sufficient reason being shown by the party, an adverse inference may be drawn against that party, even if such inference is only a permissible one." Applying the foregoing principles to the present appeal, it is evident that the failure to summon material witnesses specifically Ramadhani Bahati, Daud Kusekwa, and James Ndege created substantial gaps in the prosecution's case. Their evidence would have been critical in clarifying the circumstances under which the appellant was found in the room and resolving the inconsistencies in the testimonies of PW1, PW2 and PW3. In consequence, the omission materially weakened the prosecution's case, warranting the drawing of an adverse inference against it. We therefore allow the second ground. Next for our consideration is the third ground. The appellant pegs his complaint on the fact that the evidence of the prosecution witnesses was fraught with material contradictions which, in his view, fatally weakened the prosecution's case. In response, the learned Senior State Attorney maintained that the charge was proved beyond reasonable doubt. She submitted that in order to sustain a conviction for statutory rape, the prosecution was required to establish three essential ingredients: first, that there was vaginal penetration of the victim; second, that the victim was below the age of 9 eighteen years at the material time; and third, that the perpetrator of the sexual act was the appellant. The learned Senior State Attorney clarified that during the trial, the victim testified that she was sixteen years old, and her evidence in that regard was corroborated by PW3, who likewise stated that PW1 was aged sixteen years. Ms. Masule further submitted that proof of age may be established through the testimony of the victim herself, a parent or relative, a medical practitioner, or by the production of a birth certificate. On that basis, she maintained that the combined evidence of PW1 and PW3 sufficiently established that the victim was below eighteen years at the material time. Ms. Masule went on to submit that PW1 was sure that she had sexual intercourse with the appellant. She added that PW1 evidence was corroborated by PW2 and PW3 who found her and the appellant inside the room and PW4 who examined the victim and, in his findings, she confirmed that PW1 was penetrated by a blunt object. Upon being probed by the Court, as to whether there were contradictions in the evidence of PW1, PW2 and PW4, the learned Senior State Attorney conceded that there were slight inconsistencies, but maintained that they did not go to the root of the case. She emphasized 10 that the evidence of PW1 had been found credible by both the trial court and the first appellate court. On the strength of her submission, she urged the Court to dismiss the appeal in its entirety. Having heard the submissions of the appellant and the learned Senior State Attorney on this ground, the central issue for our determination is whether the prosecution proved the charge of statutory rape beyond reasonable doubt. As correctly submitted by the learned Senior State Attorney, in order to sustain a conviction, the prosecution was required to establish three essential ingredients: first, that there was vaginal penetration of the victim; second, that the victim was below the age of eighteen years at the time of the sexual act; and third, that the appellant was the perpetrator of the sexual act. It is settled law that the best evidence in sexual offence cases ordinarily comes from the victim. This principle was affirmed by the Court in Selemani Hassani v. Republic (Criminal Appeal No. 203 of 2021) TZCA 127 (22 March 2022, TanzLII). However, courts are not barred to assess the credibility of such witness so as to determine whether the evidence availed by the victim is not improbable and as such, we shall accordingly be guided. See Majaliwa Ihemo v. Republic (Criminal Appeal No. 197 of 2002) [2021] TZCA 304 (15 July 2021, TanzLII). l i The victim is on the record of appeal to have said that she was sixteen years old and her evidence was corroborated by PW3 who stated that PW1 was sixteen years old. The victim further testified that she had sexual intercourse with the appellant, which demonstrates that penetration occurred. This position is supported by the Court's observation in Hassan Kamuya v. The Republic (Criminal Appeal No. 277 of 2016) [2018] TZCA 259 (25 July 2018, TanzLII), where expressions such as "[he] removed my underwear and started intercourse with me," "sexual intercourse," or "have sex" are sufficient to prove penetration. On this evidence, we are satisfied that the first and second ingredients of the offence were clearly established. The difficult part, however, lies in establishing the identity of the perpetrator. The record of appeal shows that, in convicting the appellant, both the trial court and the first appellate court relied on the evidence of the key witness, PW1 and the decision of the Court in Selemani Makumba v. Republic [2006] T.L.R. 379. In that decision, the Court held that the evidence of the victim, is generally regarded as the most reliable and best evidence in cases of this nature. While we agree that the above represents the correct position of the law, as alluded to above, we hasten to emphasize that this does not mean that such evidence should 12 be accepted wholesale or relied upon to convict the accused without scrutiny. The testimony of the victim must be considered alongside other evidence and the surrounding circumstances of the case to ensure that a just and fair conclusion is reached. See Shabani Daudi v. Republic, Criminal Appeal No. 28 of 2000 [2004] TZCA 84 (11 March 2004, TanzLII). In the present case, save for the testimony of PW1 that the appellant raped her, there was no other eyewitness to the alleged incident. Consequently, PWl's credibility is central to determining the veracity of the allegation. It is therefore incumbent upon the Court to carefully assess the credibility of witnesses, as the evaluation of their truthfulness is essential for arriving at a just and fair decision. In the case of Salum Ally v. Republic, Criminal Appeal No. 106 of 2013 (unreported), we held that: "...on whether or not any particular evidence is reliable, depends on its credibility and the weight to be attached to such evidence. We are aware that at its most basic, credibility involves the issue o f whether the witness appears to be telling the truth as he believes it to be. In essence , this entails the ability to assess whether the witness's testimony is plausible or is in harmony with the preponderance o f probabilities which a practical and informed person would 13 readily recognize as reasonable in the circumstances o f a particular case. The test for any credible evidence is supposed to pass, which was best summarized in the case o f Abdallha Teje @ Malima Mabula v. Republic ’ Criminal Appeal No. 195 o f2005 (unreported)/' [Emphasis added] We are therefore compelled to re-evaluate the evidence of the prosecution witnesses, to find whether the two courts below misapprehended both the substance and the quality of the evidence presented. At the very outset, we observed that the sequence of events, as borne out by the record, are not clear and leaves material gaps unexplained. The information indicates that the alleged incident occurred on 31s t December, 2022 at about 22:00 hours. PW1, in her testimony, maintained that it was on the same date and time when she engaged in sexual intercourse with the appellant. What, however, remains shrouded in uncertainty is the fact that, if Ramadhani Bahati witnessed the appellant and PW1 entering the said room at 22:00 hours, how comes PW3 was informed at 00:00 hours? The intervening period of approximately two hours is left unexplained. When this omission is considered alongside the appellant's defence that PW3, in the company of three women, assaulted him, forcibly took him to their house, locked the door from outside, and left a girl inside the room. The unexplained delay assumes particular significance. In our view, the prosecution's failure to account for this lapse of time creates a material doubt in the chronology of events which ought not to have been glossed over. PW3 testified that after receiving a call from Ramadhani Bahati, he called PW2 while PW2 testified that he received a call from a village chairman informing him about the incident. Worse still, PW2 testified that when they arrived at the scene, he, PW3 and one militia opened the door and found the appellant and the victim inside the room, while PW3 said that when he arrived at the scene PW2, the militia and Ramadhani had already opened the door and he found them inside already. Equally troubling is the inconsistency apparent in the evidence of the prosecution witnesses. PW1 testified that when they were inside the room, Ramadhani Bahati knocked on the door; PW1 opened it, and thereafter Ramadhani Bahati left, leaving the door open. In sharp contrast, PW2 stated that upon their arrival at the scene, James Ndege opened the door. This divergence is not trivial. If, as PW1 asserted, Ramadhani Bahati had already left the door open, how then could PW2 15 speak of opening the same door thereafter? The two versions are plainly irreconcilable and cast doubt upon the reliability of the narrative advanced by the prosecution witnesses. Further, the evidence of the prosecution witnesses is riddled with contradictions and lacks clarity on how information about the incident was communicated. The record indicates that Ramadhani Bahati alone allegedly witnessed the appellant and PW1 entering the room. Yet, there is no satisfactory explanation as to how Daud Kusekwa came to learn of the alleged incident if Ramadhani Bahati was the sole eyewitness at that initial stage. These gaps create missing links in the chain of events, leaving the sequence of occurrences unclear and the evidence difficult to reconcile. There are, moreover, evident gaps and inconsistencies in the testimonies of PW1, PW2 and PW3. If, as suggested, they were all present at the scene, one would reasonably expect a measure of consistency in their respective accounts. Instead, what emerges is a series of material contradictions touching on the sequence of events, the circumstances under which the appellant and the victim were found, and the role played by those said to have been present. 16 In our respectful view, when the deficiencies are considered cumulatively and weighed alongside the appellant's defence, the prosecution's narrative loses coherence and persuasive force. The Court has consistently held that where material contradictions and unexplained inconsistencies create doubt in the prosecution's case, such doubt must inure to the benefit of the accused. See Mohamed Said Matula v. Republic [1995] T.L.R. 3 and Dickson Elia Nsamba Shapwata & Another v. Republic (Criminal Appeal No. 92 of 2007) [2008] TZCA 17 (30 May 2008, TanzLII). To sum up, as alluded to above, we are unable to say that the prosecution evidence, taken as a whole, established beyond reasonable doubt that it was the appellant who committed the offence. Although the prosecution managed to prove penetration, the identity of the perpetrator was left in doubt. Had the trial court and first appellate court considered and scrutinized the entire evidence on record, they would have found that the prosecution witnesses' evidence was not watertight. We therefore conclude that the two courts below misapprehended the evidence on record thus arriving at wrong conclusion that the appellant is guilty. As such we find the third ground of appeal has merit. 17 In the event, we allow the appeal, quash the conviction, and set aside the sentence imposed on the appellant. Accordingly, we order that the appellant be released from prison unless lawfully held for other causes. DATED at SHINYANGA this 4th day of March, 2026. F . L. K. WAMBALI JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL The Judgment delivered this 5thday of March, 2026 in the presence of Mr. Lukeja Ndalahwa, learned counsel for the Appellant and Mr. Louis Boniface, learned State Attorney for the Respondent, via virtual Court, and M r. Elias Nkwabi, Court Clerk; is hereby certified as a true copy of the 18