Alex Mkumbo vs Republic (Criminal Appeal No. 794 of 2024) [2026] TZCA 227 (4 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA fCORAM: GALEBA, J.A.. MASOUD- J-A. And FELESHI, J.A.j CRIMINAL APPEAL NO. 794 OF 2024 ALEX MKUMBO ................................... ..... ................ ............... APPELLANT VERSUS REPUBLIC ................................. ............................................. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Dodoma) (Khalfan, J.) dated the 3rd day of April, 2024 in DC. Criminal Appeal No. 48 of 2023 JUDGMENT OF THE COURT 19th February, & 4th March, 2026 FELESHI. 3.A.: The appellant, Alex Mkumbo, was convicted of the unnatural offence, contrary to section 154 (1) (a) and (2) of the Penal Code, Chapter 16, by the District Court of Dodoma (the trial court), which sentenced him to life imprisonment together with an order to pay compensation of TZS 500,000.00 to the victim. That decision was upheld by the High Court of Tanzania at Dodoma (the first appellate court). i The offence was alleged to have been committed on 16.1.2022 at Chang'ombe area within Dodoma District and Region against one VJ (name withheld to preserve her modesty), a girl, aged 10 years. The appellant denied the charge. The prosecution called five witnesses, namely: the victim (PW1), Elizabeth Simon Mbega, her mother (PW2), Joseph William Mwaja, her father (PW3), WP 4291 D/SGT Traifonia, the investigating police officer (PW4) and Enid Chiwanga, a medical doctor (PW5). One exhibit was tendered, being the victim's PF3 (exhibit PI). The precis of the prosecution's case is that, on 16.1.2022, PW2 gave money to the victim (PW1) who, together with her young sibling, William Joseph, went to shave at a local salon. Whilst there, the appellant, the victim's former kindergarten teacher, allegedly called her and asked whether she could remember him. Upon her responding in the affirmative, he forcefully pulled her into a toilet near the salon. There, he undressed her pants and his clothes and penetrated her anus. The victim was unable to raise an alarm because the allegedly appellant held a knife and threatened to kill her. She said, the appellant once penetrated her before at Little Star, later renamed Brighting, Future Kindergarten, but she did not inform anyone about those incidents. Upon returning home, PW2 and the victim's grandmother noticed that she was frequently going to the toilet and, upon examination, they observed abnormal discharge of stool. Tine matter was reported to PW3, and subsequently to the police. A PF3 was issued and the victim was taken to hospital for medical examination. Thereafter, the appellant was arrested and charged. In his defence, the appellant raised an alibi that, he had travelled to Singida on 15.12.2021 for holiday and returned to Dodoma on 18.1.2022. He asserted that he was arrested, assaulted/beaten, and taken to the police on 19.1.2022. He denied ever teaching the victim and committing the offence. Upon conclusion of the trial, the court found that PW1 had adduced credible evidence, which was duly corroborated by the testimonies of PW2, PW3, PW5 and exbibit PI. The trial court rejected the appellant's defence as untenable, convicted him, and sentenced him as earlier stated. Aggrieved by the decision of the trial court, the appellant lodged his first appeal to the High Court, which was dismissed in its entirety. Still dissatisfied, he preferred this appeal. Initially, the appellant advanced three grounds of appeal in the main memorandum of appeal and thirteen grounds in the supplementary memorandum of appeal. However, at the hearing of the appeal, Mr. Fred Peter Kaionga, learned counsel who represented him abandoned all the grounds, save for the first and third grounds contained in the main memorandum of appeal, namely: one, the trial court and the first appellate court erred in law in convicting the appellant when the prosecution had failed to prove its case beyond reasonable doubt; and three, the trial court and the first appellate court erred in law by failing to properly consider the defence evidence, thereby occasioning a miscarriage of justice. On the other hand, Ms. Rachel Cosmas Tulli and Ms. Nancy Rugaihuruza, both learned State Attorneys, appearing for the respondent, Republic, intimated that they would align their reply submission with the remaining grounds of appeal. Supporting the appeal, M r. Kalonga submitted that, the prosecution evidence was tainted with material contradictions and inconsistencies which went to the root of the case. He pointed to the discrepancies regarding the dates when the victim was taken to hospital. PW2 and PW3 testified that the victim was taken to hospital on 16.1.2022, whereas PW5 testified that he examined her on 18.1.2022. Further that, exhibit PI was tendered by PW5 contrary to the law, that it should first be admitted before its contents is disclosed as done by PW5. According to the counsel, this prejudiced the appellant because PW5 stated some facts which were inconsistent with exhibit PI. M r. Kalonga also argued that, another inconsistence of the prosecution evidence is exhibit PI which shows that it was issued on 17.1.2022 and filled on 18.1.2022 contrary to PW2 and PW3's evidence. Counsel argued that these inconsistencies were not minor but fundamental, rendering the prosecution case doubtful. M r. Kalonga went on arguing that, there were material witnesses who were not called without reason for why they were not called. He gave examples of the victim's grandmother, William (the victim's sibling), the victim's uncle identified by the name of Thomas and, the salon worker. For example, he argued, the circumstances under which PW1 belatedly mentioned the appellant, allegedly under the coercion of Thomas who was never called to testify created an unresolved doubt as to whether the naming of the appellant was made voluntarily or was the result of coercion. M r. Kalonga also contended that, the investigating police officer, ought to have visited the scene of crime to inspect the salon, the adjacent toilet, and the pub said to be within the same premises, and thereafter prepare and tender a sketch plan. A sketch map would have helped the court to evaluate the evidence of the offence allegedly committed in the 5 toilet, because it would have resolved the issue if the toilet was not used by other individuals near the salon. According to him, the omission to do so left material gaps in the prosecution's case and cast doubt as to whether the alleged incident of 16.01.2022 indeed occurred as narrated by PW1. Nevertheless, M r. Kalonga also argued that the appellant's defence was not taken on board not withstanding the fact that the prosecution did not object the tendering of the tickets which showed that the appellant was away from Dodoma on the material date. He submitted that both the trial court and the High Court erred in dismissing it without proper evaluation. He contended that, although the notice under section 194 of the Criminal Procedure Act, Chapter 20 (the CPA) was not given, the travel tickets were tendered without objection and thus formed part of the evidence. He submitted that the courts below erred in rejecting the alibi as an afterthought instead of weighing it against the prosecution case. He summed up praying this court to find the case was not proved to the hilt and allow the appeal, quash the conviction and set aside the sentence and release the appellant from prison. In reply, the learned State Attorneys vehemently opposed the appeal. Ms. Tulli started by giving the ingredients to be proved in unnatural 6 offence cases as they were stipulated in the case of Mahamudu Ally Muddy Chaga v. Director of Public Prosecutions [2026] TZCA 23. That, the charged section required to prove the victim was under 18 years old, was anally penetrated, and the appellant was responsible in that penetration. According to her, all ingredients were proved by the victim and her parents, PW2 and PW3, who also proved the victim's age. Ms. Tulli added that, the contradictions complained of on the dates were minor discrepancies which are normal in criminal trials and did not go to the root of the case. That, since the essential ingredients of the offence were proved by the direct evidence of the victim and corroborated by PW2, PW3, PW5 and the medical findings in exhibit PI, the same sufficed to ground the conviction of the appellant. On the defence of alibi, Ms. Tulli emphatically argued that, the defence was raised as an afterthought without prior notice as required by law and was properly accorded no weight. She cited Kubezya John vs Republic [2019] TZCA 472, and argued that, an alibi defence given without prior notice under section 194 (4), now, section 200 (4), of the CPA, the trial court has powers under 194 (6), now section 200 (6) to accord no weight to the defence. She therefore maintained the position that, the trial court and the 1s t appellate court correctly accorded no weight to the appellant's defence o f alibi. On the need to have a sketch drawn at the scene of crime, Ms. Tulli conceded that, it was indeed an omission and an unusual inaction on the part of the investigating officer. Regarding the complaint on PW5's detailed evidence and its bearing on exhibit PI, she similarly conceded the omission. However, she maintained that those lapses were inconsequential to the substance of the prosecution's case and implored the Court to dismiss the appeal. In rejoinder submission, M r. Kaionga insisted that the contradictions were not minor. And prayed the defence of aiibi be accorded weight to find that, the case against the appellant was not proved beyond reasonable doubt. We have considered the grounds of appeal, the rival submissions by the counsel for the parties and the entire record. This being a second appeal, we are mindful that, both the trial court and the first appellate court found the prosecution's evidence was watertight proving the charge of unnatural offence against the appellant. In reappraising any matter of fact therefore, we shall be mindful of the common ground that a second appellate court would not easily disturb or interfere and undo the 8 concurrent findings of two lower courts unless the two courts completely misapprehended the substance, nature, and quality of the evidence, resulting in an unfair conviction or where there was misdirection on evidence. See for instance-Salum Mhando v. The Republic [1993] T.L.R. 170 and Director of Public Prosecutions v. Jaffari Mfaume Kawawa [1981] T.L.R. 143. Hand in hand with the above principle, the other guidance is the common principle in criminal cases that, the duty of proving the charge is shouldered by the prosecution and does not shift. And the standard is none other than beyond reasonable doubt. Starting with the complaint that the case was not proved to the hilt as the prosecution's evidence was full of contradictions and incoherent, the law on this area is settled, that, the contradictions and inconsistencies must be material going to the root of the prosecution's case. It is not every discrepancy in the prosecution case that will cause the prosecution case to flop. It is only where the gist of the evidence is contradictory that the prosecution case will be dismantled - see Said Ally Ismail v. Republic, Criminal Appeal No. 214 of 2008 (unreported). Moreover, in all trials, normal discrepancies are bound to occur in the testimonies of witnesses, due to normal errors of observations, such as, errors in memory due to lapse of time or due to mental disposition such as shock, and horror at the time of the incident. In the case of Mohamed Said Matula v. R [1995] T.L.R 3., it was held that: "Where the testimonies by witnesses contain inconsistencies and contradictions, the court has a duty to address the inconsistencies and try to resolve them if possible; else the court has to decide whether the inconsistencies and contradictions are oniy minor, or whether they go to the root o f the matter. In the matter before us, the issue for determination is whether the contradictions and inconsistencies highlighted on behalf of the appellant are of such a nature as to striking the foundation of the prosecution's case. Upon our careful and anxious consideration of the record, we are of the view that, there exist several fragments of evidence which, when examined cumulatively, fail to form a total coherence and consistence. For example, we find material discrepancies regarding the dates of issuance of the PF3, hospitalization and medical examination of the victim. PW2 and PW3 testified that the victim was taken to hospital on 16.1.2022 and hospitalized until 17.1.2022. PW5, however, testified that he examined the victim on 18.1.2022 and that she had been admitted the previous day. Exhibit PI, the PF3 shows that it was issued on 17.1.2022 and filled on 10 18.1.2022. The record does not clarify whether the victim returned to hospital after discharge. These discrepancies were not reconciled. Further, PW2 spoke of uncontrolled stool discharge, whereas PW5 indicated through exhibit PI that, the victim was suffering from constipation and difficulty in defecation for four days. Again, PW3 introduced allegations of the victim being induced by being given money by the appellant, a matter not mentioned by either the victim herself, PW1 or PW2. These inconsistencies, in our view, are not minor as suggested to us by Ms. Tulli, but go to the core of the prosecution account. Another unreconciled evidence is that, the victim had also been penetrated when she was in kindergarten, but she did not tell if she was threatened not to disclose it. In that regard, we have taken on board the submissions by the learned State Attorney that, the victim's evidence alone can base a conviction. Truly, this is the stance of the law under section 127 (6) of the Evidence Act. See- Selemani Makumba v, Republic [2006] T.L.R. 379 and Edward Nzabuga v. Republic [2010] TZCA 364. However, the general rule has an exception that, the victim’s evidence cannot be taken wholesale, as the same must pass the truthfulness and credibility test. See the holding in Mohamed Said v. Republic [2019] TZCA 259. li For the reasons explained above, we do not consider the victim in this case to have been a sufficiently credible and truthful witness whose evidence alone could sustain a conviction. With respect, we find merit in the appellant's argument that the prosecution's evidence was materially contradictory and inconsistent. Regarding the complaint on the order of tendering the PF3, that it ought to have been tendered before its contents explained, we find has no merit. The reason is not far-fetched. A medical doctor who testifies in court does so as an expert witness. As stated in Abasi Makono v. Republic [2019] TZCA 299, citing J.P. Morgan v. Springwell [2007] 1 All ER (Comm) 549, we observed that, an expert expresses an opinion based on assumed facts. We take liberty to add that, expert opinion evidence, once properly tendered and admitted, derives its probative value from the special skill, knowledge, training and experience of the expert concerned who come from diverse professional fields, including medical doctors, ballistics analysts, cyber specialists, forensic scientists, and others. In view of the above, and with due respect to counsel, we are clear in our minds that, PWS's testimony was fundamentally different from that of investigators or justices of the peace who are summoned merely to produce reports or documentary materials recorded from other persons. In 12 that category, the responsibility for the authenticity and veracity of the contents, such as confessional statements rest primarily with their makers. We therefore hold that, in the instant case, the sequence in which exhibit PI was tendered did not occasion any prejudice to the appellant. However, notwithstanding that PW5's medical findings as contained in exhibit PI established that an offence was committed against the victim, as we have already demonstrated in our discussion on the contradictions and omissions in the prosecution's case above, it is evident that, the identity of the perpetrator remained unresolved. Regarding M r. Kalonga's complaint that, other material witnesses were not called, it is trite, and we agree with Ms. Tuili that, according to section 152 of the Evidence Act, Chapter 6 and settled legal position including that in Yohanis Msigwa v. Republic [1990] T.L.R. 148, the prosecution was at liberty to call witnesses of their choice and not each and every witness. Nonetheless, it is equally the law that, adverse inference may be made where the persons omitted to be called as witnesses are material witnesses and are within reach and without sufficient reason being shown by the prosecution. See- Aziz Abdallah v. Republic [1991] T.L.R. 71. 13 In this matter, where we found unresolved contradicting circumstances above, we think, there was a need to call other witnesses, such as the victim's grandmother or her uncle Thomas. These witnesses would have helped to reconcile these inconsistencies on the taking of the victim to the hospital, if it was inadvertently forgotten that it was on 17.1.2022, contrary to PW2 and PW3 that it was on the same incident day on 16.1.2022. Also, to reconcile the testimony by PW2 about the extent to which the victim was injured, since her grandmother was the first person to examine the victim. Not only that, but also the victim's sibling, Willian, and a salon worker/attendant in our view were material witnesses who would have helped to assist in determining whether the victim on the incident day did move away from the salon and for how long, and whether she returned to collect her sibling or not. Furthermore, the salon attendant would have established and reconciled the positioning of the toilet, said to be either behind the salon or adjacent to it. Additionally, we align ourselves with the appellant's counsel’s submission that, the circumstances in this matter required an investigator to testify as a materia! witness. Fortunately, Ms. Tulli conceded that, that was indeed an omission and an unusual inaction on the part of the 14 investigating officer, suggesting that, the scene was not inspected at all. To us, in appropriate cases like the one under review, a sketch map could serve as demonstrative evidence enabling the court to visualise the physical layout of the scene and to properly evaluate the credibility and probability of the parties' version of events. The discussion above brings us to the next complaint that, the appellant's alibi defence was not considered. On this particular issue, we need not recount the trite law that criminal convictions must be based on a balanced evaluation of all the evidence on record, that is, prosecution and defence evidence - see Hassan Singano @ Kang'ombe v. Republic [2022] TZCA 261. In the matter at hand, the appellant's evidence was to the effect that, he travelled from 15.12.2021 and returned to Dodoma on 18.1.2022 and he was arrested on 19.1.2022. The account which we find was corroborated by PW4, who testified that the appellant was handled to him for interrogation by the head of investigation on 19.1.2022. If we infer that interrogation by police are made within four hours from the time of arrest, then the appellant's account is believable. As to alibi defence, we concur with the learned State Attorney that the appellant did not comply with the notice requirement for an aiibi under 15 section 200 (4) of the CPA. The record shows, however, that when he tendered the travel tickets in support of that alibi, the prosecution did not raise any objection as to their admissibility. It is a settled principle of evidence that, where documentary evidence is tendered without objection from the adverse party, it becomes part of the record and its contents are admitted in evidence, see- Nyerere Nyague v. Republic [2012] TZCA 103. In such circumstances, the trial court is not entitled to reject the document on grounds that could and ought to have been raised by the opposing party at the time of tendering. Accordingly, while the trial court retained the discretion under section 200 (6) of the CPA to accord no weight to an aiibi raised without prior notice, that discretion goes to the weight of the evidence. See- Kubezya John v. Republic (supra). We think, the discretion does not extend to its admissibility. Once the tickets were admitted without objection, the court was precluded from suo rnotu impeaching their admissibility on grounds such as absence of seat number or omission of the issuer's name, matters that were within the competence of the prosecution to challenge at the time of tendering. The proper course would have been to assess the evidential value of the said aiibi in light of the entire record, rather than to discredit its admissibility on procedural grounds not raised by the prosecution. 16 In the upshot, based on the above discussion, we are satisfied that the prosecution failed to prove its case beyond reasonable doubt. Consequently, we hereby allow the appeal, quash the appellants conviction, set aside his sentence and order for his immediate release from prison unless he is otherwise lawfully held. DATED at DODOMA this 4th day of March, 2026. Z. N. GALEBA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL Judgment delivered this 4th day of March, 2026 in the presence of the appellant in person, Ms. Rose Ishabakaki, learned State Attorney for the respondent Republic and M r. Oscar Msaki, Court Clerk via virtual Court; is hereby certified as a true copy of the original.