Matinda s/o Matepeti vs Republic (Criminal Appeal No. 404 of 2023) [2026] TZCA 222 (3 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: MWANPAMBO. J.A.. MWAMPASHI, J.A. And MLACHA, J.A.1 CRIMINAL APPEAL NO. 404 OF 2023 MATIN DA MATEPETI................................................................ APPELLANT VERSUS THE REPUBLIC.....................................................................RESPONDENT (Appeal from the Judgment of the Resident Magistrate's Court of Manyara, at Babati.) fLusewa, PRM-Ext-Jurist dated the 22n d day of March, 2022 in Criminal Appeal No. 20 of 2022 JUDGMENT OF THE COURT 23rd February & 3rd March, 2026 MWAMPASHI, J.A.: In the District Court of Simanjiro at Orkesumet in Manyara Region (the trial court), Matinda Matepeti, the appellant herein, stood charged with the offence of raping a 30 years old woman, hereinafter to be referred to as "PW1" or 'Victim". According to the charge sheet, the statement of the offence and its particulars were stated as hereunder: STA TEMENT OF OFFENCE RAPE, Contrary to section 130 (l)(2)(e) and 131 (1) of the PenaI Code [Cap. 16R.E2019] PARTICULARS OF OFFENCE MATINDA S/O MATEPETI, on 26 June 2020 at Naberera village within Simanjiro District in Manyara Regionf did unlawfully have sexual intercourse with one "AI"a woman o f 30 years old. The appellant having pleaded not guilty, the prosecution summoned four witnesses and tendered one documentary exhibit (PF3) in order to establish the case against him. Briefly, the evidence led by the prosecution was to the effect that, in the morning hours of 26.06.2020, PW1 was on her way to the water well when he met the appellant. As she was a well- known pious woman within the village, the appellant asked her to pray for him, which she did. Having done with prayers, PW1 left the appellant and proceeded with her mission but she did not get far before the appellant took hold of her by the neck from behind, pulled her aside and raped her. PW1 lost consciousness and when she regained it, she realized that, she was bleeding from her vagina and anus. She also found being surrounded by a crowd of people including one James Lazaro (PW2). She was then taken to Naberera Police Station and to the hospital. PW1 was attended and medically examined at Naberera Health Centre by Daniel Salali (PW4), a clinical officer whose observations were to the effect that, there were bruises and slight blood in PWl's vagina. According to him, the bruises were caused by a blunt object. To that effect, a PF3 was tendered by him and admitted in evidence as exhibit PI. In support of PWl's testimony, it was testified by PW2 that, he was on his way back home from Njoroni area where he had gone to fetch water when he met the appellant who, having seen him, he ran away. A bit far ahead, he found PW1 lying beside a pathway unconscious with her underpants pulled down. He had to call PWl's relatives who came and rushed her to the hospital. In his sworn defence, the appellant denied to have committed the charged offence. He claimed that on the material morning he was at Ndovu Village attending a funeral of his uncle. Having heard the evidence from both sides, the learned trial magistrate found that the prosecution had proved the case against the appellant beyond reasonable doubt. The appellant was therefore convicted as charged and sentenced to the mandatory term of 30 years' imprisonment. The appellant's appeal against the trial court's findings, conviction and the sentence to the first appellate court was unsuccessful, hence the instant second appeal. In support of his appeal, the appellant raised eleven grounds of complaint, five grounds contained in the memorandum of appeal filed on 19.09.2023 and six grounds in the supplementary memorandum of appeal filed on 12.02.2026. However, when the appeal came before us for hearing, at the outset, Ms. Mary Lucas, learned Principal State Attorney, who represented the respondent Republic, supported the appeal on the 1s t and 5th grounds of appeal in the supplementary memorandum of appeal. The two grounds faults the first appellate court for upholding the trial court's decision while the trial was flawed with procedural irregularities which vitiated it and for failing to see that the charge was defective. In her focused submissions, Ms. Lucas contended that, the charge was fatally defective, firstly, for wrongly citing the charging provision. She pointed out that, section 130 (1) (2) (e) of the Penal Code was cited instead of section 130 (1) (2) (a) of the Penal Code. Secondly, the particulars of the offence omitted to indicate that, the sexual intercourse was without the victim's consent. She further expounded that the charge did not inform the appellant about the absence of consent which is an essential ingredient in the charged offence of rape against an adult. This, it was contended, denied the appellant the right to understand the nature of the offence facing him for the purpose of preparing his defence. Ms. Lucas submitted further that, the defect is not curable under section 411 of the CPA and vitiated the whole proceedings rendering the same a 4 nullity. She thus urged the Court to nullify the proceedings, quash the conviction, set aside the sentence meted out against the appellant and set him free. The appellant happily welcomed the concession of his appeal by the respondent and without more, he beseeched us to allow his appeal. As it can glaringly be seen in the excerpt from the charge sheet reproduced at the beginning of this judgment and also as conceded by Ms. Lucas, the fact that, in the statement of offence reference was made to paragraph (e) of section 130 (2) of the Penal Code instead of paragraph (a) as the victim of the rape in question was not under the age of 18 years but an adult, is not disputable. Not in dispute also is the fact that the particulars of the offence omitted to indicate that the alleged sexual intercourse was "without the consent of the victim" That being the case, the only issue calling for our determination is whether or not the said charge placed at the door of the appellant, was fatally defective. If the answer is in the affirmative, what is the effect of a fatally defective charge. In tackling the above posed issues, our starting point should be section 135 of the CPA which provides that: "A charge or information shail contain and shall be sufficient if it contains\ a statement o f the 5 specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature o f the offence charged" Further, under section 138 (a)(ii) of the CPA, it is provided that: "the statement of offence shall describe the offence shortly in ordinally language avoiding as far as possible the use o f technical terms and without necessary stating all essential elements o f the offence and if the offence charged is one created by enactment, shall contain a reference to the section o f the enactment creating the offence" Of equal importance, for the determination of the issues posed above, is also section 130 (1) (2) (a) of the Penal Code which is the correct provision of the law under which the appellant ought to have been charged. The provision stipulates that: ”130.- (1) It is an offence for a male person to rape a girl or a woman . (2) A male person commits the offence o f rape if he has sexual intercourse with a girl or a woman under circumstances falling under any o f the following descriptions: (a) not being his wife, or being his wife who is separated from him without her consenting to it at the time o f the sexuai intercourse" It is crystal clear from the above provisions of the law that, since the offence of rape of an adult woman is created under section 130 (1) (2)(a) of the Penal Code and as the victim in the instant case was an adult, making reference to section 130 (1) (2)(e) in the statement of the offence which applies where the victim is not an adult, was in violation of both sections 135 and 138 (a)(ii) of the CPA. Likewise, omitting to indicate, in the particulars of the offence, that the alleged sexual intercourse was "without the consent of the victim", an element which is essential in the offence of rape charged under section 130 (1) (2)(a) of the Penal Code, was also a contravention of section 135 of the CPA under which it is mandatorily provided that, the charge shall contain such particulars as may be necessary for giving reasonable information as to the nature of the offence charged. Based on the above, it is our considered view that, cumulatively, the two pointed-out shortcomings, rendered the charge fatally defective. The law is settled that, in order not to prejudice the accused person, the charge has to specify all necessary ingredients of the offence charged, which was not the case in the instance case. The appellant was not informed of the essential ingredient of consent in the offence he was charged with. In the case of Musa Mwaikunda v. Republic [2006] T.L.R. 387 where the particulars of the offence of attempted rape omitted to indicate the aspect of threats, the Court stated that: "The principle has always been that an accused person must know the nature of the case facing him. This can be achieved if a charge discioses the essential elements o f an offence , Bearing this in mind, the charge in the instant case ought to have disclosed the aspect o f threatening which is an essentia! element under paragraph (a) above . In the absence o f disclosure,, it occurs to us that the nature o f the case facing the appellant was not adequately disclosed to him . The charge was therefore/ defective, in our view" The requirement for the charge to contain not only the proper statement of the offence but also all relevant essential particulars, was also insisted by the Court in Isidori Patrice v. Republic [2007] 7ZCA 2, thus: "It is a mandatory statutory requirement that every charge in a subordinate court shall contain not only a statement of the specific offence with which the accused is charged but such particulars as may be necessary for giving reasonable information as to the nature o f the offence 8 chargedSee section 132 [now 135] o f the Act. It is now trite law that the particulars o f the charge should disclose the essential elements or ingredients o f the offence . This requirement hinges on the basic rules o f criminal law and evidence to the effect that the prosecution has to prove that the accused committed the actus reus o f the offence charged with the necessary mens rea". Similarly, in our decision in Simba Nyangura v. Republic [2013] TZCA 2168, the requirement for the accused person charged with the offence of rape to be informed under which paragraph of section 130 (2) of the Penal Code he is charged, was emphasized. The Court stated that: "We think that in a charge o f rape an accused person must know under which o f the descriptions (a) to (e) in section 130 (2) o f the Pena! Code, the offence he faces falls, so that he can be prepared for his defence." As regards to the effect of the charge not making correct reference to the provision of the law creating the offence charged and also not disclosing in the particulars of the offence all necessary ingredients of the offence charged, it is a trite position of the law that, such shortcomings render the charge fatally defective. The position was reiterated by the 9 Court in the case of Shedrack Loshoc @ Lota v. Republic [2017] TZCA 313 where the Court stated that: "It has been the position o f the Court that, where the charge sheet does not make proper reference to the enactment creating the offence, such irreguiarity is fatal". See also- Meshaki s/o Malongo @ Kitachangwa v. Republic [2018] TZCA 301, Abdallah Ally v. Republic Criminal Appeal No. 253 of 2013, Mayala Njigailele v. Republic [2016] TZCA 253 and Nzararila Alfonce v. Republic [2020] TZCA 262. Since the charge under which the appellant was tried and convicted was fatally defective, as intimated above, both the proceedings of the two lower courts were a nullity. Consequently, the relevant proceedings are nullified, the resultant judgments vacated, the conviction quashed and the sentence imposed on the appellant set aside. With regard to what should be the way forward, Ms. Lucas urged us to allow the appeal and set the appellant free. We agree with her. Guided by the principle requiring courts when pondering whether to order a retrial of a case or not, to consider whether ordering retrial will be in the interest of justice or not (see- Fetehali Manji v. R [1966] EA 343) and bearing in mind that, the charge, which is the foundation of criminal 10 proceedings, has been found to be fatally defective, retrial does not arise and it will not be in the interest of justice. For the above reasons, the appeal is allowed on the 1s t and 5t h grounds of appeal in the supplementary memorandum of appeal and the appellant is set free. We order for his immediate release from prison unless he is otherwise being held for any other lawful cause. DATED at ARUSHA this 3r d day of March, 2026. The Judgment delivered virtually this 3r d day of March 2026 in the presence of the Appellant in person, Mr. Philibert Morrison Msuya, learned State Attorney for the Respondent/Republic and Mr. Fahmi Karemwa, Court clerk, is hereby certified as a true copy of the original. L. J. S. MWANDAMBO JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL li