Haroun Japhet @ Kanumba & Another vs Republic (Criminal Appeal No. 487 of 2023) [2026] TZCA 226 (3 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: MWANPAMBO, J.A., MWAMPASHI, J.A. And MLACHA J.A.^ CRIMINAL APPEAL NO. 487 OF 2023 HAROUN JAPHET @ KANUMBA............................................. 1 st APPELLANT JACKSON FARAO NJOLIBA ................................................. 2N DAPPELLANT VERSUS THE REPUBLIC ................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania Manyara Sub- Registry at Babati) (Kahvoza, J.l dated the 10th day of July, 2023 in Criminal Appeal No. 21 of 2023 JUDGMENT OF THE COURT 16* February & 3rd March, 2026 MLACHA, 3.A.: The appellants, Haroun Japhet @ Kanumba and Jackson Farao Njoliba were arraigned at the District Court of Kiteto at Kibaya charged with Unnatural Offence contrary to section 154 (1) (a) and (2) of the Penal ‘ i Code, Cap 16 of the Revised Edition 2019. It was alleged that they had carnal knowledge of a girl aged 10 years against the order of nature who for the purpose of preserving her modest shall be referred to as "SJ" or the victim. The crime was alleged to have been committed on 23/4/2022 at Pori kwa Pori area, Kimana Village, Kiteto District, Manyara Region. They pleaded not guilty but following a trial which involved 6 prosecution witnesses and two defence witnesses, they were found guilty, convicted and sentenced to life imprisonment. Their first appeal to the High Court in Criminal Appeal No. 21 of 2023 was dismissed. The summary of the evidence leading to the conviction of the appellants is as follows. SJ (PW1) deponed that she was playing with her friends, Neema and Rachel on 23/4/2022 when the appellants picked her. They accused her of stealing a mobile phone. She knew the first appellant who was living near her uncles' house. She also knew the second appellant who used to visit the first appellant. They took her to Bwawani area and required her to remove her clothes which she complied. The first appellant inserted his penis into her anus while the second appellant held her month tightly. Once he had finished, the second appellant took the turn and did the same. They then moved to the house of the second appellant. They tied her with ropes on the hands and legs and left her in the house. The second appellant's wife who was present left with them. She gathered strength at a later stage and called Neema who removed the ropes. She moved to the village office and gave the story to two people's militia (popularly known as Mgambo). The people's militia moved to arrest the appellants. They were sent to the police station. The complainant also went to the police station where she was given a PF3 and went to hospital. Lucy Njereza (PW2), the mother of the complainant, received a phone call telling her that her daughter had been raped and rushed to the village office where she met the victim. She took her to the Police Station where she got a PF3. As it was already night, they went to the hospital in the following day. Both, Safari Feo (PW3) and Esnati Jackson (PW4), village leaders, said that the appellants were arrested by the local militia following the allegation that they had committed the crime and sent to the Police Station. Dr. Donald Efraim Kweka (PW5) who attended the victim on 25/4/2022 noticed bruises on her anus. She had the opinion that the victim had been sodomized. He tendered the PF3 which was received as exhibit PI. WP 6861 CPL Neema (PW6) who investigated the case and recorded the witness statements had the opinion that the appellants committed the crime. The appellants distanced themselves from the commission of the crime. In rebuttal to the prosecution case, the first appellant told the trial court that there were contradictions in the prosecution case highlighting two areas. One, facts presented in the preliminary hearing did not tally with what was said in court in respect of the place where the victim was picked; that the facts showed that she was picked from Neema while the evidence in court showed that she was picked from her uncles's house. Two, whereas the complainant said that she was taken to the village office by people's militia, the village chairman (PW4) said that she was brought by two women. He described these differences as an indication that the case was merely fabricated to incriminate him. She urged the trial court to find her not guilty and set him free. The second appellant made a defence in the nature of an alibi; that he was not in the village at the material time as he had gone to the farms, far away, where he usually stayed during the day, to attend his farm. That, when he came back in the evening, he was told by his wife that some people's militia were looking for him. He was soon arrested and sent to the village office accused of committing the crime which he denied. He accused the village chairman for incriminating him without valid cause. Based on the evidence of the victim and the doctor, the trial court made a finding that, the offence was proved beyond reasonable doubt and convicted the appellants. They were sentenced to life imprisonment. Their first appeal to the High Court was dismissed as alluded to above, hence the appeal before the Court. The appellants have two memoranda of appeal; the original and the supplementary memorandum of appeal both comprising of fifteen grounds of appeal but the determination of the appeal turns on the 1st, 2n d and 3r d grounds in the supplementary memorandum. The appellants appeared in person fending for themselves whereas the respondent Republic was represented by Raphael Rwezahula, learned State Attorney. When Mr. Rwezahula was called to address the Court on his readiness for hearing, he informed the Court that he supported the appeal on grounds one, two and three of the supplementary memorandum of appeal which carry the complaint that there were procedural irregularities involving the charge making the conviction of the appellants bad in law. Amplifying, he submitted that, page 4 of the record of appeal shows that the prosecution prayed to amend the charge and they were given leave to do so, but the amended charge was read to the second appellant only. The first appellant did not plead to the amended charge. The charge is also not part of the record of appeal. He contended that, the prosecution led evidence against the appellants on a charge which is not existing. Nevertheless, both were found guilty and convicted. He contended further that, after the amendment of the charge in terms of section 234 (1) of the Criminal Procedure Act (the CPA) (now section 251 (1) of the CPA Revised Edition 2023), the first charge was no longer existing before the court so it could not be used as a basis for convicting any of the appellants. He went on to submit that, it was important for the amended charge to be read to both appellants who should have pleaded to it. It was also important for it to be part of the record. He contended that, the fact that both the appellants did not plead to the amended charge and the fact that the amended charge is nowhere to be seen vitiated the proceedings and rendered the conviction of the appellants bad in law. He urged the Court to quash the conviction, set aside the sentence imposed on the appellants and set them free. The appellants welcomed the submission of the learned State Attorney with open hands and urged the Court to set them free to go and join their families. We had time to examine the record of appeal and consider the submission of the learned State Attorney. Amendment of the charge is done under section 251 (1) of the CPA. This provision allows the court to grant an order for amendment of the charge at any time before judgement where need arises. Subsection (2) provides the procedure to be followed after the grant of the order. It reads as follows: "(2) Subject to subsection (1), where a charge is aitered under that subsection- (a) the court shall there upon call upon the accused person to plead to the altered charge; (b) the accused person may demand that the witness or any o f them be recalled and give their evidence afresh or be further cross examined by the accused person or his advocate and, in such last mentioned event the prosecution shall have the right to re - examine any such witness on matters arising out o f such further cross examination; and (c) the court may permit the Prosecution to recall and examine, with reference to any alteration of or addition to the charge that may be allowed, any witness who may have been examined, unless the court for any reason to be recorded in writing, consider that the application is made for the purpose o f vexation, delay or for defeating the ends o f justice ." [Emphasis supplied] This provision provides the procedure which must be followed after the issuance of an order for amendment of the charge. One, the accused must be called upon to plead afresh. The words "call upon the accused to 7 plead to the altered charge", means that the accused person must be called to plead to the amended charge. This involves all accused persons. See Masumbuko Zakaria @ DogoAslei & 2 Others v. Republic, [2022] TZCA 474, Rajabu Salimu @ Roja v. Republic, [2025] TZCA 373 and Kali s/o Kulwa @ Nyangaka v. The Director of Public Prosecutions [2021] TZCA 486 to mention but a few. Two, both the accused and prosecution have a right to recall witnesses who have already given evidence, if any, for further examination in chief, cross examination or re-examination as the case may be. The record of appeal shows that the prayer was made at the preliminary hearing. Witnesses were yet to give evidence so subsections 2(b) and (c) are not applicable. The relevant provision for the purpose of our deliberation is subsection 2(a) which carry the right to plead to the amended charge. The germane issue now is whether the appellants were given this right. This calls for the revisit of the record of appeal to see what was done by the trial court on 2/5/2022. The record of appeal at page 4 reads in part, as follows: "Public Prosecutor: In this court I have come to add one more accused as the 2n d accused. I pray to read the charge to the accused Court: Charge read over to the accused who is asked to plead thereto: Accused: Sio kweli Court: Entered plea o f Not Guilty,," The prosecutor addressed the court saying he had come with the second accused (second appellant) and wanted the charge to be read to him without a prior leave to amend the charge. The court granted leave and the amended charge was read over to him. The second appellant pleaded in Swahili saying sio kweli meaning it is not true and a plea of Not Guilty was entered. The first appellant was not called to plead. It is not clear which charge was read to the second appellant, for as submitted by the learned State Attorney, the amended charge is not part of the record of appeal. Even our scan of the original record of appeal could not locate it. It follows that, the appellants were convicted on a non existing charge. As the charge sheet in a criminal trial is the foundation of any prosecution facing an accused person, as it provides him with the road map of what to expect from the prosecution witnesses during trial of his case, failure to plead to the charge and failure to locate the amended charge is fatal to the proceedings and judgments of the lower courts. They make the conviction of the appellant bad in law. See our decision in Gerold Moris Hugo vs Republic [2017] TZCA 246. That said and done, the judgments of the lower courts are vacated, the conviction of the appellants quashed and sentences set aside. We order their immediate release from prison unless lawfully held on some other lawful cause. Order accordingly. DATED at ARUSHA this 3r d 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 virtually, this 3r d day of March, 2026 in the presence of the Appellants, Mr. Philibert Morisson Msuya, learned State Attorney for the Respondent and Anna Utou, Court Clerk; is hereby certified as a true copy of the original. b ** R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 10