Tizzo Mashaka Ngowe vs Republic (Criminal Appeal No. 767 of 2023) [2026] TZCA 189 (3 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM; v KEREFU, J.A., KAIRO, J.A. And NANGELA, J.A.) CRIMINAL APPEAL NO. 767 OF 2023 TIZZO MASHAKA NGOWE ................................................... ............... APPELLANT VERSUS THE REPUBLIC................................................................................. RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mbeya) (Nongwa, 31 Dated the 10th day of July, 2023 In Criminal Appeal No. 168 of 2021 JUDGMENT OF THE COURT 20* February & T 1 March 2026 KAIRO, J.A.: The appellant herein was charged before the Resident Magistrate's Court of Mbeya at Mbeya, with two counts, one; rape contrary to sections 130 (1) (2) (e) and 131 (1) of the Penal Code, Chapter 16 of the Revised Laws, (the Penal Code). It was particularized that, on diverse dates between 24th October, 2019, and 25°' November, 2019 at Simambwe Village within the District and Region of Mbeya, the appellant had unlawful carnal knowledge of a girl of 16 years. To conceal her true identity, we shall refer to her as the victim or PW1 as she so testified at the trial court. Two; impregnating a school girl contrary to section 60A (3) of the Education Act, Cap 353 as amended by Written Laws (Miscellaneous Amendments) Act No. 2 of 2016. It was alleged that, on the same date and place, the appellant did unlawfully impregnate PW1, a form three student at Shibolya Secondary School. The appellant pleaded not guilty to both counts, thus, a full trial ensued. To prove the case, the prosecution paraded a total of seven witnesses, namely; the victim (PW1); Mboma Mwafike (PW2), the victim's father; Frank Mbawa (PW3), the victim's brother; Mwasiti Ahmed Mohamed (PW4), a Clinical Officer who examined the victim; Chege Mathayo Mbilinyi (PW5), a Village Executive Officer of Simambwe (VEO); No. G.1556 DC Hamis (PW6), a Police Officer who recorded the appellant's cautioned statement; and Deodatus Michael Mtitige (PW7), A teacher of Shibolya Secondary School. The prosecution further relied on four documentary exhibits to wit; a PF3 of the victim (exhibit PI), a cautioned statement of the appellant (exhibit P2); TSM 9 Form of the victim (exhibit P3); and a School Register Admission Form of the victim (exhibit P4). On the other hand, the appellant, fended for himself as he neither called any witness nor tendered any documentary evidence. Brief facts that led to the arrest and prosecution of the appellant were as follows: The victim and the appellant met each other at the market area in October, 2019. TTie appellant seduced the victim who agreed and they became lovers. By that time, the victim was a student schooling at Shibolya Secondary School as it was testified by PW7 who « also tendered TSM 9 form and School Register Admission Form which were admitted in evidence as exhibits P3 and P4, respectively. According to the record, the fact that the victim was a student was also known to the appellant. It was the testimony of the victim that, she used to sneak from their home at night when her parents were asleep and went to kill a night at the appellant's home and have sexual intercourse with him. Such habit went on for sometime until 25/11/2019 when the victim's parents discovered that, PW1 did not sleep at home. They revealed the news to PW3 with whom they together decided to search for her. It was when the victim was returning home at the early morning hours, on 25/11/2019 under the escort of the appellant, when the duo met with PW3 on the way. On noticing that they have been caught, the appellant took to his heels. Back at home, the victim was quizzed on where she spent the night and with whom. At first, she lied that, she slept at Michael's home at Igoma. However, when they went there, they did not find such a person. It was untit she was thoroughly beaten that she spoke the truth and told 3 them that, she slept at the appellant’s home. The incident was reported to PW5 and other authorities, but the appellant was nowhere to be seen following his escape from the village. Later, in April, 2019, the appellant came back to the village. Upon reporting the incident to the police, the victim was issued with a PF3 (exhibit PI) and taken to the hospital for medical examination where it was confirmed that, she was penetrated but was tested negative as regards to pregnancy. However, later around April, 2020, the victim noticed some changes into her body and she again went to the hospital, this time with her mother for further medical examination. That is when the sad news was revealed as it was discovered that, she was pregnant. She was therefore required to start attending clinic but, she was told to come with the person responsible for the pregnancy for her to be issued with a clinic card. The victim later managed to get hold of the appellant and they went together to the hospital and the clinic card was issued to her. The victim delivered a baby on 20/09/2020. The appellant was later arrested by the police and when interrogated, he admitted to have raped the appellant. A cautioned statement to that effect was recorded by PW6. It was later admitted in evidence without objection, as exhibit P2. In his defence, the appellant admitted to have recorded a cautioned statement and confessed to have impregnated the victim. He further told the trial court that, he had also confessed to the commission of the offence before the justice of peace. However, the record shows that, he later changed and denied to have impregnated her, instead, lamented that, he was not taken for DNA test to prove that, indeed, he impregnated the victim. At the end of the trial, the appellant was found guilty on both counts as charged. He was convicted and sentenced to serve 30 years in jail for each count which were ordered to run concurrently. The trial court further ordered the appellant to compensate the victim a total of TZS. 500,000.00 after finishing his custodial sentence. The appellant was not amused by the trial court's decision and decided to appeal to the High Court challenging both the conviction and the sentence. The High Court upheld the conviction and the sentence as regards the offence of rape. However, for the offence of impregnating the victim it noted that, the presided magistrate was of a rank of resident magistrate whose sentencing limit was 5 years for the said offence, being not among the scheduled offences under the Minimum Sentence Act, Cap 90 of the Revised Laws as per section 170 (1) (a) of the Criminal Procedure Act, Cap 20 of the Revised Laws (the CPA). The High Court, therefore, revised the imposed sentence of 30 years to 5 years in jail, in terms of the provisions of section 373 of the CPA, which the presided magistrate would have imposed. The appellant was further aggrieved and decided to approach the Court seeking to challenge both the conviction and the sentence raising two memoranda of appeal. The substantive memorandum of appeal was lodged on 4/7/2024 having seven grounds of appeal and a supplementary memorandum of appeal was lodged on 10/2/2026 with five grounds of appeal, thus, making a total of 12 grounds. At the hearing of the appeal, appellant appeared in person. On the adversary part were, Ms. Mwajabu Tengeneza, learned Principal State Attorney who teamed up with Mses. Ellen Masululi and Veronica Mtafya, both learned Senior State Attorneys to represent the respondent Republic. When the appellant was invited to argue his appeal, he opted to adopt the grounds of appeal contained in the two sets of memoranda of appeal and preferred to let the respondent Republic respond to them first, and reserved his right to make a rejoinder later, should the need to do so arises. 6 Before responding to the grounds of appeal, Ms. Masululi who addressed the Court on behalf of his colleagues, informed the Court on \ the respondent's stance to oppose the appeal. She further informed the Court that, when preparing for the appeal, they noted that grounds number 4, 5, 7 in the substantive memorandum of appeal and number 4 in the supplementary grounds of appeal were new. She submitted that, the listed grounds were not addressed by the lower courts and are not points of law, thus, they cannot be entertained by the Court at the second appellate stage. Otherwise, she argued, entertaining them at this stage, would be in contravention of the provisions of section 6 (2) of the Appellate Jurisdiction Act, Chapter 141 of the Revised Laws (the AJA). With that note, she invited the Court to so hold and refrain from entertaining them. Having gone through the grounds of appeal raised by the appellant, we are ad idem with Ms. Masululi that, in terms of the provision of section 6 (2) of the AJA, the appellant cannot, on a second appeal, raise issues not argued in the first appeal, except where the issue in question is a pure point of law Our scrutiny in the raised grounds of appeal observed that, the listed grounds are new and are not points of law, as such, the Court cannot entertain them at this stage. We have repetitively insisted in 7 abiding to this legal principle in our previous decisions, some of them being: A m os M asasi v. R epublic (Criminal Appeal No.280 of 2019) [2020] TZCA 1906; (17 December 2020), M akende Sim on v. Republic (Criminal Appeal No.412 of 2017) [2021] TZCA 156 ('03 May 2021) both from TANZUI and Isaya John v. Republic, Cr. App. No. 167/2018 (unreported). On that basis, we refrain from entertaining grounds number 4, 5, and 7 in the substantive memorandum of appeal and number 4 in the supplementary grounds of appeal. Having so decided, Ms. Masululi also expressed the manner she will respond to the remaining grounds of appeal by grouping them into five groups. She submitted that, in the first group, she will address grounds number 1 and 2 in the substantive memorandum of appeal conjointly, followed by grounds number 3 in the substantive memorandum of appeal and number 2 in the supplementary memorandum of appeal as a second group which will also be addressed collectively. That in the third group, the learned Senior State Attorney will respond to ground number 6 in the substantive memorandum of appeal and number 3 in the supplementary ground of appeal. She went on to submit that, grounds number 1 and 5 in the supplementary ground of appeal, will be addressed separately each. We wish to state that, the Court will determine the grounds of appeal in the manner expressed by Ms. Masululi. We further wish to state that, generally the appellant had nothing substantive to rejoin after Ms. Masuluii's response, apart from asking the Court to find his grounds of appeal meritorious, allow the appeal and set him free from prison. Responding to the grounds in the first group into which the appellant challenge the High Court reliance on the evidence of PW1, while there was no DNA report to link him with the charge and further questioned the credibility of PW1 who lied to PW2 on where she spent the night and the person she was with. It is imperative to note that, the credibility of PW1 was also attacked in ground number 2 in the supplementary memorandum of appeal. The appellant cited the case of Michael John @ Kajela v. Republic, (Criminal Appeal No. 487 of 2021) [2024] TZCA 1014 (31 October 2024 TANZLII) to substantiate his arguments on the questioned credibility of PW1. In her response, Ms. Masululi submitted that, DNA test is not a legal requirement in proving the charge levelled against the appellant. In clarification, the learned Senior State Attorney stated that, in the instance appeal, the question as to who impregnated the victim has no dispute. She argued that, the victim when testifying at page 14 of the record of 9 appeal was clear that, it was the appellant with whom she had sexual intercourse several times without any protection. She went on to submit that, though at first PW1, mentioned Michael, but later she spoke the truth and mentioned the appellant and was consistent thereafter on that issue. Besides, she went on to argued that, the same was further corroborated by the appellant himself at page 48 of the record of appeal, where he told the trial court that he had confessed to have impregnated the victim. As such, the credibility of PW1 was not injured as argued by the appellant. She also argued that, despite the non-conduct of the DNA test, there is no prejudice on the appellant, since, the rapist is known and that a confession of an accused is the truth of what transpired. Ms. Masululi cited the case of Sokolo Richard v. Republic, Criminal Appeal No. 478 of 2020 [2024] TZCA 1106 (15 November, 2024 TANZLII to fortify her position. The learned Senior State Attorney also refuted the alleged non evaluation of the evidence of PW1, PW2 and PW3 regarding their coherence following the alleged cheating by PW l by taking PW2 and PW3 to other places and later mentioned the appellant as the rapist, in the wake of confession of the appellant and referred us to our previous decision in Goodluck Kyando v. Republic [2006] T.L.R. 367). 10 Having revisited the record of appeal, we agree with the appellant that, PW l had at first lied to PW2 and PW3 as regards where she spent the night and with whom when she was caught up returning home at the early morning hours on 25/11/2019. It was until when she was chastised, that she mentioned the appellant to be the offender. That, according to the appellant, the act of lying by the victim is the essence of his attack to the credibility of PW l and the requirement of the DNA report to connect him with the PW l's pregnancy. However, we hold a view that, the turning point in this case is the appellant's own admission to the commission of the offences he was charged with which was done twice: firstly, when recording his cautioned statement, which was later admitted in evidence with no objection as exhibit P2 as appearing at page 50 to 56 of the record of appeal; and secondly, when testified before the trial court as he said '"when interrogated, I confessed to im pregnate the said student". We are with strong conviction that, with such confession, questioning the victim's credibility or the coherence of the evidence of PW l, PW2 and PW3 is superfluous, and further, non-conducting of the DNA test to link the appellant with the pregnancy, even if it would have been a requirement, which is not the case any way, is inconsequential in the circumstance of li this appeal. [See: Sokolo Richard v. Republic] (supra). That apart, it is a settled legal stance that, the best witness in any criminal trial is an accused person who freely confess his guilty. [See: H alfan Rajab Moham ed v. Republic, Criminal Appeal 281 of 2020) [2023] TZCA 178 (06 April 2023)]. We, therefore, find the cited case of M ichael John @ Kajela v. R ep u b lic (supra) inapplicable in the circumstance of this case. In the same vein, we find that, the two grounds in the first group are without merit and proceed to dismiss them. As regards ground number 3 in the substantive memorandum of appeal, which Ms. Masululi has earlier intimated to address it in the second group, the appellant complained that, it was an error for the High Court to uphold the decision of the trial court which relied on the evidence of PW1 and PW4, while none of them tendered the dinic card for proof. The learned Senior State Attorney, readily conceded to the non tendering of the clinic card, but she hastened to add that, the prosecution managed to prove both counts the appellant was charged with, notwithstanding the omission complained of. She illustrated that, for the offence of rape, three ingredients must be proved to wit: age of the victim was proved by PW2, penetration and the offender were proved by PW1. For verification, she referred us to pages 17 and 13 to 16 of the record of 12 appeal, respectively. Ms. Masululi added that, the aspect of penetration was corroborated by PW4 who also proved that, the victim and the appellant went to the hospital so that the victim could be issued with a clinic card as depicted at pages 25 to 27 of the record of appeal. It was further argued by Ms. Masululi that, apart from the proof of the commission of the offence of rape, the fact that the victim was a student was proved by PW7 at pages 36 to 37 of the record of appeal. As if that was not enough, the appellant confessed to have committed the offences, as charged when testifying at the trial court and in his cautioned statement (exhibit P2) recorded by PW6. She therefore concluded by imploring the Court to find the complaint in this ground is without merit. Having perused the record, it is not in dispute that the clinic card was not tendered in evidence by the prosecution witnesses. However, we agree in all fours that, the offences the appellant was charged with were proved all the same despite the stated omission, and we see no need of repeating the well-articulated submission by Ms. Masululi on the proof of the offences. Suffice to state, as an addition that, the beauty of this case lies with the confession by the appellant himself on the commission of the offences. Basing on the analysis above, we find nothing to fault the High Court for upholding the trial court's decision. Again, ground number 3 in 13 the substantive memorandum of appeal, fall by the wayside. We dismiss it. Rebutting the appellant's complaint in the third group that, there was unexplainable delay of reporting the incident of rape to the police station so that, the appellant could have been arrested immediately, as such, the said delay has created a reasonable doubt, as regards the truthfulness of the prosecution case, Ms. Masululi was brief and submitted that, the record is dear that, the appellant dissapeared from the village after hearing that, he was a wanted person and he is being pursued. To verify her argument, the learned Senior State Attorney referred us to pages 14, 22, 29 of the record of appeal. She added that, the evidence on his escape was further corroborated by the appellant himself in exhibit P2 at page 54 of the record of appeal. She therefore implored the Court to find the grounds in the third group unsubstantiated. We would not be detained in determining the complaints raised in the third group. Suffice to state that, the same are not supported by the record of appeal as aptly demonstrated by the learned Senior State Attorney in her response because PW1, PW2, PW3 and PW5 were categorical that, the appellant absconded after hearing that he is being pursued suspecting to have raped the victim. The fact of his running away 14 from the village was also corroborated by the appellant himself when recording his cautioned statement (exhibit P2) and in terms of the principle in Halfan Rajab Mohamed v. Republic, we take his statement that, he left and went to Kyela where he stayed for three months to be a proof of his escape after the incident came to light. Again, the grounds in the third group flop for want of merit and we accordingly dismiss them. Coming to ground number 5 in the supplementary memorandum of appeal wherein the complain is to the effect that, it was an error for the High Court to rely on exhibit P2 to convict him as according to the appellant, the said reliance amounted to shifting the burden of proof to the appellant which legally never shifts to an accused person and further that, the High Court banked on the weakness of the appellant's evidence in uncorroborated cautioned statement. Responding to this the appellant's complaint in this ground of appeal, Ms. Masululi downplayed it and beseeched the Court to find it an afterthought. We go along with Ms. Masululi on this aspect of considering the appellants complaint nothing but an afterthought. The reasons are not farfetched as we hereby list them: One; the appellant recorded exhibit is P2 voluntarily with no coercion and PW6 recorded it in accordance with the law and the laid down procedures. Two; exhibit P2 was tendered at the trial court without any objection from the appellant which indicates that, he agreed to its admissibility and the veracity of the contents therein. As such, the High Court's reliance on it was proper. Three; the appellant did not cross examine PW6, when testifying on the aspects explained therein. The law is settled that, failure to cross examine amounts to an acceptance of the testified evidence [See: Nyerere Nyague v. Republic (Criminal Appeal Case 67 of 2010) 2012 TZCA 103 (21 May 2012) TANZLII]. Four; That, what has been described in exhibit P2 as regards the commission of the offences at issue are so detailed and tally squarely with the evidence of the prosecution witnesses, particularly PW1 to the extent that, such explanations can only be given by persons who were key players on what transpired, in this case, it was the appellant and PW1. No wonder their stories have resemblance on the material facts on how, when, where and how many times the offence was committed. Five; what was stated in exhibit P2 was repeated again, when the appellant testified in the trial court. Considering the above reasons, the arguments in ground number 5 are misplaced, and as correctly submitted by Ms. Masululi, the complaint is 16 nothing, but an afterthought and has no probative value. Like other grounds, we dismiss it. In ground number 1, the gist of the complaint hinges on what the appellant claimed to be the variance of the name of the victim in the charge and when she testified before the trial court. The learned State Attorney's response was brief and straight that, it was just a typing error as per the original record of the case, PW l's name was recorded as Wambi Mboma as the charge reads. Our perusal of the original record of the court reveal that, the charge referred to the victim as Wambi d/o Mboma while, when testifying before the trial court, she was recorded as Wambi Msawe. We wish to state that, Ms. Masululi's argument that, it was just a typing error when compared to the original record of the file, is with much respect incorrect. Nevertheless, we do not consider, in our view that, the mistake has prejudiced the appellant considering that, her name "Wambi" is common in both incidents. But also exhibit P2, a cautioned statement by the appellant, into which he admitted to have raped PW1, he referred to her as Wambi d/o Mboma, which is the same name indicated in the charge. We are of considered view that, the appellant's admission, as explained earlier, coupled with his omission to cross examine the victim when she 17 was testifying before the trial court, as regards her names of Wambi Msawe with which she introduced herself, therefore, raising it at this stage is an afterthought. We therefore, find the ground number 1 devoid of merit. « Consequently, we find the appeal devoid of merit and is hereby dismissed In its entirety. DATED at M BEYA this 2nd day of March, 2026. R. J. KEREFU JU STICE OF APPEAL L.G. KAIRO JU STICE OF APPEAL D. J. NANGELA JU STICE OF APPEAL Judgement delivered this 3rd day of March, 2026 in the presence of the Appellant in person via virtual court from Ruanda prison, Mr. Augustino Magessa, learned State Attorney, for the respondent/Republic and Ms. Christina Mwanandenje, Court Clerk; is hereby certified as true copy of the original.