Richard Malimi vs Republic (Criminal Appeal No. 877 of 2023) [2026] TZCA 251 (5 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA (CORAM: WAMBALI. J.A.. MAKUNGU. J.A. And MGEYEKWA. l.AA CRIMINAL APPEAL NO. 877 OF 2023 RICHARD MALIMI ................................................................... APPELLANT VERSUS THE REPUBLIC................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Shinyanga) (KawisheJ.) dated the 2n d day of November, 2023 in Criminal Appeal No. 31 of 2018 JUDGMENT OF THE COURT 200 th February & 5th March, 2026 MGEYEKWA, J.A. The appellant, Richard Malimi was charged with attempted rape contrary to section 132 (1) and (2) (e) of the Penal Code, Cap. 16 [R.E 2002]. It was alleged that on 26th December, 2016 at about 20:00 hour at Mulungu Village within Kahama District in Shinyanga Region, the appellant attempted to rape a woman aged 63 years. For the sake of protecting her privacy, we will refer to her as 'PW l' as she so testified before the trial court. The appellant denied the charge subsequent to which in order to establish its case, the prosecution lined up four witnesses and exhibited i

two documents, a cautioned statement (exhibit A) and a Police Form No. 3 (PF3) of the victim (exhibit D). In his defence, the appellant defended himself. After a full trial, the appellant was convicted as charged and sentenced to thirty years imprisonment. He unsuccessfully appealed to the High Court hence, the present appeal seeking to demonstrate his innocence. Initially, in order to understand what underlines the arraignment and conviction of the appellant, it is pertinent to state a brief factual account as follows: the prosecution key witness, PW1, recounted the episode to the effect that on 26th December, 2016 (the material day), she was on her way back home and met the culprit being suspicious of him, she raised an alarm, unexpectedly, the ravisher gagged her mouth with a piece of cloth, pulled her to a bush and started to undress her. PW1 said with the aid of light, she saw the appellant at the scene. When she was to surrender herself to the appellant, a Samaritan arrived at the scene of the crime. She testified that the culprit attempted to flee the scene; however, they managed to apprehend him. The evidence of PW1 was corroborated by that of Jumanne Bundala (PW2). He stated that on the material day, upon hearing an alarm raised,

he rushed to the scene where he found the appellant lying on top of the victim. According to him, the appellant disengaged himself and attempted to flee, but they managed to apprehend him. WP 7059 D/C Mary (PW3) a police officer who dealt with the matter and interrogated the appellant who confessed to having attempted to rape the victim. Dr. Peter Dalali (PW4), who medically examined the victim, testified that he examined the victim's body and observed injuries on her thigh and shoulder. On the other hand, the appellant denied each and every detail of the prosecution account. He testified that on the material night he had been drinking at a local liquor shop and, while on his way home, he encountered certain individuals who apprehended him. He recalled that, he was questioned as to whether he was aware of an incident of attempted rape, an allegation he firmly denied. Notwithstanding his denial, he was escorted before the ten-cell leader and thereafter taken to the police station. He was subsequently arraigned and charged before the trial court. As earlier intimated, after a full trial, the appellant was convicted and sentenced. The appellant unsuccessfully appealed to the High Court where, in terms of section 45 (2) of the Magistrates' Court Act, Cap. 11 [R.E 2002] (the MCA), the appeal was transferred to the Court of Resident 3

Magistrate of Shinyanga at Shinyanga to be heard by Rujwahuka, Senior Resident Magistrate with Extended Jurisdiction. According to the record, she scheduled a hearing on 22n d July, 2020, however, for reasons that are not apparent on the record of appeal, the appeal was heard and determined by Mbuya, Principal Resident Magistrate with Extended Jurisidction, who upheld the trial court's decision. Dissatisfied with the decision of the Principal Resident Magistrate with Extended Jurisidction, the appellant lodged an appeal before this Court. Unfortunately, that appeal encountered a procedural impediment, as the Court was unable to determine it on its merits. It emerged that the Resident Magistrate with Extended Jurisdiction who handled the matter lacked the requisite jurisdiction, there having been no transfer order issued in his name. Consequently, the case file was remitted to the High Court for re hearing and for the preparation of a fresh judgment. Upon rehearing the appeal, the learned Judge dismissed it, thereby returning the appellant to the foot of the hill he had already climbed in his pursuit of justice. Hence, he has now lodged the present appeal, which comprises four grounds that may be paraphrased as follows: one, that the prosecution failed to prove the case beyond reasonable doubt; two, that the prosecution witnesses

were not credible; three, that the conviction was founded on hearsay evidence; and four, that the sentence imposed was excessive in the circumstances. At the hearing of this appeal, the appellant appeared in person, unrepresented. The respondent Republic appeared through Ms. Mwamini Fyeregete, learned Senior State Attorney assisted by Mr. Satuninus Kamala, learned State Attorney. When given the floor to argue his grounds of appeal, the appellant adopted his grounds of appeal, and opted to hear first the reply of the respondent reserving the right to rejoin if need arised. In response, Mr. Kamala, intimated that they did not support the appeal. At first, the learned State Attorney sought leave to address the Court on certain points of law which, upon reflection, he stated that the record of the appeal shows that the public prosecutor tendered exhibits as opposed to a witness. He mentioned the exhibits that were tendered by the public prosecutor as a cautioned statement and the PF3; such a course was contrary to the established principles governing the production of exhibits. He accordingly urged the Court to expunge and disregard the said exhibits. Arguing grounds one and two of the appeal together, the learned Senior State Attorney argued that the prosecution had discharged its 5

burden of proof on the strength of the testimonies of PW1 and PW2. He contended that the visual identification of the appellant was not tenuous, as PW1 had testified that she saw the appellant holding a torch and that he undressed her pants. However, when the Court enquired whether during re-examination, PW1 maintained that assertion, Mr. Kamala candidly conceded that, in re-examination, PW1 stated that, on the material day she had no pants on while in examination in chief, she stated that the appellant removed her pants. Further, when pressed by the Court on the credibility and consistency of the evidence of PW1 and PW2, the learned State Attorney conceded a key discrepancy. PW1 had testified that she was immediately rescued by one Imani Bundala; however, the record clearly shows that it was PW2 who arrived at the scene and effected the rescue, not Imani Bundala. The learned State Attorney acknowledged that the prosecution witnesses' evidence lacked coherence and, as a result, the case had not been proved beyond reasonable doubt. On that basis, the learned State Attorney supported the appeal and urged the Court to allow it. At the very outset, we observed that the learned State Attorney, with commendable candour, drew the Court's attention to certain procedural irregularities in the manner in which the cautioned statement, the PF3 and other documentary exhibits were produced before the trial 6

court. We are in agreement with the learned State Attorney. The Court has consistently pronounced itself on similar improprieties. For this stance, among others Nyakwama Ondare @ Okware v. Republic, Criminal Appeal No. 507 of 2019 [2021] TZCA 592 (21 October 2021, TanzLII), Steven Salvatory v. Republic, Criminal Appeal No. 275 of 2018 [2020] TZCA 11 (20 February 2020, TanzLII) and Willy Kitinyi @ Marwa v. Republic, Criminal Appeal No. 511 of 2019 [2021] TZCA 608 (25 October 2021, TanzLII). In the cited decisions, we underscored the fundamental principle that a public prosecutor who produces an exhibit cannot thereafter be subjected to cross-examination on the same. In the premises, and in keeping with our settled jurisprudence, the impugned exhibits are rendered irregularly admitted and are consequently liable to be discounted being relied in evidence. We have heard the concurrent submissions of the appellant and the learned State Attorney on the first and second grounds of appeal and agree with them that the prosecution failed to prove the case beyond reasonable doubt. Starting with the issue of identification, before ruling out that the appellant was identified by PW1, we need to satisfy ourselves whether or not the conditions of identification were favourable for adequate and correct identification. The well-settled principles governing identification

is enunciated in a landmark case of Waziri Amani v. Republic (1980) T.L.R. 250, in which the Court laid down the criteria to be considered in assessing the reliability of identification evidence, namely: (i) the length of time the witness had the accused under observation; (ii) the distance between them; (iii) the source and intensity of the light, if any, aiding the observation; and (iv) whether the witness knew the accused prior to the incident. These safeguards are essential judicial tools designed to minimise the risk of mistaken identity. In the instant case, it is evident that the alleged crime took place at 20:00 hours. PW1, the key prosecution witness, testified that, she identified the appellant at the scene of crime with an aid of a torch. However, she did not state the intensity of the light emitted therefrom, nor did she describe the conditions obtaining at the time to demonstrate that there was sufficient illumination to enable a proper identification. Therefore, it cannot be said that the prosecution established that the identification of the appellant by PW1 was correct and unmistakable. The next issue for consideration is related to inconsistencies and contradictions of the prosecution witnesses. We have perused the record of appeal and agree with the learned State Attorney that there were material discrepancies in evidence of PW1 and PW2. We have noted that PW1 in her testimony maintained that the appellant attacked and 8

undressed her. However, upon re-examination, she stated that at the material time she had no undergarment on. This assertion stood in stark contrast to her earlier testimony that it was the appellant who had undressed her. The inconsistency touches directly on a central and material element of the alleged act but the prosecution neither sought to clarify the discrepancy nor to reconcile it through other evidence. In the absence of such clarification, the contradiction remained unresolved, thereby impairing the internal consistency of PW l's testimony and diminishing its probative value. Yet another contradiction is in relation to a person who rescued the victim at the scene of crime. It is on the record that PW1 testified that, following the incident, one Imani Bundala appeared and rescued her. The record of appeal, however, reflects that it was PW2 who allegedly appeared and effected the rescue and not Imani Bundala. This contradiction was not peripheral; it related directly to the sequence of events immediately after the alleged offence and touches on the credibility of a witness. Noteworthy that in criminal proceedings, contradictions which go to the root of the charge cannot be lightly disregarded. The evidence of PW1 and PW2, upon which the entire prosecution case 9

depended, was fraught with inconsistencies and lacked the degree of cogency required in cases resting substantially on identification. It is trite that any material inconsistency must be satisfactorily explained, and the court must determine whether the discrepancies and contradictions are minor or whether they go to the root of the matter. The Court has so pronounced itself in a long line of authorities, among them Mohamed Said Matula v Republic [1995] T.L.R. 3, Issa Hassan Uki v. Republic, Criminal Appeal No. 129 of 2017 (unreported) and Dickson Elia Nsamba Shapwata & Another v. Republic, Criminal Appeal No. 92 of 2007 [2008] TZCA 17 (30 May 2008, TanzLII). In the latter case, the Court held that: "In evaluating discrepancies, contradictions, and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest o f the statements. The court has to decide whether the inconsistencies and contradictions are only minor or whether they go to the root o f the matter." Guided by the foregoing principles, we are satisfied that the contradictions highlighted in the present matter cannot be regarded as minor. Their cumulative effect substantially erodes the credibility and reliability of the prosecution witnesses. Upon assessing the coherence of 10

PW l's testimony, both internally and in relation to the evidence of the other witnesses, we find that her credibility is seriously put in question. In Shabani Daudi v. Republic, (Criminal Appeal No. 28 of 2000) [2004] TZCA 84 (11 March 2004, TanzLII), the Court elucidated the manner in which credibility may be assessed, stating: "...The credibility o f the witness can also be determined in two other ways. One, when assessing the coherence o f the testimony o f that witness and two, when the testimony o f that witness is considered in relation to the evidence o f other witnesses, including that o f the accused person. In those two occasions, the credibility o f a witness can be determined even by a second appellate court when examining the findings o f the first appellate court . " See also Yohana Msigwa v. Republic (1990) T.L.R. 143 and Anangise Masendo Ng’wang’wa v. Republic (1993) T.L.R. 202. In the circumstances, on the basis of the re-evaluation of the evidence adduced at the trial, although the victim was assaulted, there is no evidence to link the appellant with the charged offence because the prosecution has failed to prove the charge to the hilt against the appellant. Thus, all said and done the appeal is merited. ii

In the premises, we allow the appeal, quash the conviction and set aside the sentence imposed on the appellant. We accordingly order that the appellant be set at liberty forthwith unless he is held for some other lawful cause. 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 5th day of March, 2026 in the presence of Appellant in person, Mr. Louis Boniface, learned State Attorney for the Respondent/Republic, via virtual Court, and Mr. Elias Nkwabi, Court Clerk; is hereby certified as a true copy of the original. 12