David Joseph Mwangapile vs Republic (Criminal Appeal No. 467 of 2023) [2026] TZCA 177 (2 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: KEREFU, J.A.. KAIRO. J.A. And NANGELA. 3.A.) CRIMINAL APPEAL NO. 467 OF 2023 DAVID JOSEPH M W ANGAPILE ....................................................... APPELLANT VERSUS THE REPUBLIC ...... ........................................................................RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mbeya) (Nq yinygle, J.) dated the 20th day o f March, 2023 in Criminal Appeal No.146 of 2022 JUDGMENT OF THE COURT 23rd February & 2n d March, 2026 NANGELA, J.A. This is a second appeal. DAVID JOSHEPH MWANGAPILE, the appellant, is appealing against the decision of the High Court of Tanzania, Mbeya sub-registry dated 20/03/2023. The decision of the High Court is in respect of Criminal Appeal No. 146 of 2022, which the appellant filed before it, challenging an earlier decision of the District Court of Rungwe at Tukuyu, (the trial court) in Criminal Case No. 71 of 2021. Before the trial court, the appellant was arraigned facing a charge of rape contrary to sections 130 (1), (2) (e) and 131 (3) of the Penal Code, Cap. 16 of the Revised Laws (the Penal Code). The particulars of his

charge were to the effect that, on 08/09/2021, at about 12:00 hours at Ilundo Village, within Rungwe District in Mbeya Region, the appellant had unlawful carnal knowledge of a girl aged 11 years. Before the trial court, the girl testified as "PW1". Consequently, in this judgment she will be referred to as the victim or PW1 to conceal her identity. The facts of the case as gathered from the record of appeal are brief. PW1 is a primary school pupil aged 11 years. On 08/09/2021 together with her two friends "PW2" and "PW3" (names withheld), went to a nearby Ilundo forest to collect firewood. While there, the appellant found them. Holding his machete (Panga), he accused them of collecting his firewood. The kids denied his accusation. Upon denial, he ordered them to follow him and see the fact for themselves. He told PW2 and PW3 to continue collecting firewood and ordered PW1 to go and fetch a binding cord for purpose of binding their bundles of firewood. As PW1 was going to do so, the appellant followed her from behind. At a distant place, he ordered her to undress. When PW1 refused, he struck her with the flat side of the Panga and threatened her with it. He then forcefully undressed PW1 and raped her. Having finished his insatiable appetite, he left, leaving PW1 alone. PW1 went to her two friends crying and narrated her ordeal to them. They went home and 2

informed PW l's mother, one Frida Job (PW5). The record of appeal, however, does not show that PW1 named the appellant to PW5. Nevertheless, the testimonies of PW2 and PW3, who also testified in court, were clear that, having encountered her ordeal, immediately PW1 named the appellant to them, as the person who sexually assaulted her. They then went to report to PW5. Having reported the incident to PW5, the latter examined her daughter (PW1). She observed, indeed, that she was ravished. She reported the matter to the police at Kiwira Police Station immediately. There, she obtained a PF3 and sent PW1 to hospital. In her testimony, PW5 confirmed that, the victim was born on 20/01/2010. That means, when she was ravished by the appellant, she was 11 years old. PW5 tendered in court a clinic card which was admitted into evidence as exhibit PI. Back to the hospital, where PW1 was sent for medical examination, it was Ms. Adelina Daniel Matina (PW6) who examined her. She also filled the PF3. In her findings, she found that the PW l's labia minora were reddish, the hymen was perforated a n d her urine had spermatozoa, all suggesting that she was penetra^d. The PF3 was tendered in court and was admitted into evidence as exhibit P2. 3

According to PW1, PW2 and PW3, on the day when the incident took place, the appellant could not be arrested. However, he was arrested by the villagers on, 09/09/2021. Their testimony was supported by Petro Ahobokile Mwakambo (PW4), who was among the villagers who arrested him. According to PW4, he first heard about the rape incident on 08/09/2021 from the ten-cell leader, one Godwin Mwafongo. On 09/09/2021, PW4 and the other villagers met and having made a follow- up on the appellant they arrested him. It was PW4's testimony that, when the appellant was asked about the allegations, he retorted: "Kweli yamenikutaf' (which translates to: "It has finally caught up with md'). Upon his arrest, he was, thus, taken to police and, later, arraigned in court facing the charge we have already stated. In court, the appellant denied the charge, a fact that necessitated a full hearing. At the hearing, the prosecution relied on the testimonies of PW1, PW2, PW3, PW4, PW5 and PW6 together with exhibits PI and P2. At the end of the prosecution's case, a prima facie case was established. The appellant was, thus, called upon to enter his defence. In defence, the appellant testified under oath and fending for himself, he called no other witness to his aid. He maintained his innocence asserting that he never raped PW1. He contended that, the testimonies

of PW1 and PW2 were inconsistent. He also discredited PW3's testimony as wrong evidence. He contended that, PW6 did not take specimen of the spermatozoa claimed to be found with PW1 to the Chief Government Chemist for test. That, the case was framed against him, this being the second time, he was falsely accused of the same offence by the villagers. At the close of the hearing, the trial court found that the prosecution had proved its case beyond reasonable doubt. It accordingly convicted the appellant as charged and sentenced him to life imprisonment. Aggrieved, the appellant appealed to the High Court. The High Court partly dismissed the appeal, upholding the conviction but reducing the sentence from life imprisonment to 30 years' imprisonment. Undeterred, he has now appealed to this Court by way of two memoranda: an original memorandum dated 16/10/2023 containing four grounds, and a supplementary memorandum dated 16/02/2026 raising six additional grounds. In total, he advanced ten (10) grounds of appeal for our consideration. For convenience, the grounds may be condensed into six complaints, to wit: One, that the first appellate court failed to properly evaluate the evidence on record; Two: that it failed to consider the appellant's grounds

of appeal and his defence; Three, that the prosecution evidence was inconsistent, contradictory and unreliable; Four, that PW1 failed to promptly name the appellant to PW5, as reflected in the delayed arrest; Five, that the prosecution failed to call the investigating officer, a material witness; and Six, that the prosecution failed to prove its case to the requisite standard. At the hearing of the appeal, the appellant appeared in person. The respondent Republic was represented by Ms. Mwajabu Tengeneza, Principal State Attorney, assisted by Ms. Ellen Masululi and Ms. Veronica Mtafya, learned State Attorneys. When invited to address the Court, the appellant requested that the respondent respond first to the grounds of appeal, reserving his right of reply. In responding to the grounds of appeal as summarized above, Ms. Tengeneza indicated at the outset that she opposed the appeal. Before proceeding further, we reiterate that this is a second appeal. This Court does not ordinarily interfere with concurrent findings of fact by the two courts below. It will only do so sparingly where there has been a misapprehension of the substance, nature or quality of the evidence resulting in a miscarriage of justice or an unfair decision. This principle has been consistently restated, including in Director of Public

Prosecutions v. Jaffari Mfaume Kawawa [1981] T.L.R. 149 and Jacob Mayani v. Republic [2020] TZCA 1744 (24 August 2020; TANZLII). We shall be guided accordingly. Turning to Ms. Tengeneza's submissions on the first ground, she argued that, as reflected at pages 38 to 39 of the record of appeal, the first appellate court framed the relevant issues arising from the grounds of appeal and determined them accordingly. She submitted that, the court concluded that the testimonies of PW1, PW5 and PW6 established the element of penetration. Further, she referred us to pages 39 and 61 to 62 of the record of appeal, where the first appellate court analysed the testimonies of PW1, PW2 and PW3 in determining the identity of the perpetrator. At pages 61 to 62, the court found PW1 to be a credible witness, noting that she immediately named the appellant to PW2 and PW3 and that they promptly informed PW5 of the incident. On that basis, Ms. Tengeneza concluded that, the first ground of appeal lacks merit, as the first appellate court properly discharged its duty. We have carefully considered these submissions. The appellant's complaint under the first ground is that the first appellate court failed to evaluate the evidence on record and thereby wrongly affirmed his

conviction. In essence, he contends that, had the evidence been properly evaluated, he would not have been found guilty. Evaluation of evidence entails a structured and reasoned assessment of credibility, consistency and probative value in accordance with established legal principles. It requires the court to consider the totality of the evidence and not isolated fragments. Only through such a comprehensive approach can a fair and just conclusion be reached. In the present appeal, Ms. Tengeneza contended that the first appellate court did not fail in its duty to evaluate the evidence. She invited us to examine the record of appeal, which, according to her, demonstrates how that court discharged its obligation. Upon perusing pages 61 to 67 of the record of appeal, it is clear that the first appellate court considered and evaluated the evidence before concluding that the appeal before it lacked merit. In particular, at pages 59 to 63 of the record of appeal, the court devoted attention to the 1st, 2n d, 3rd and 5th grounds of appeal. In addressing those grounds, it analysed the testimonies of PW1, PW2, PW3, PW4 and PW5 and assessed them against the appellant's defence before disposing of the issues raised.

Having undertaken that exercise, the court observed, at page 64 of the record, with respect to the testimonies of PW1, PW2, PW3 and PW5, that: " The testim onies o f those witnesses were coherent ; a fact which proves that they were credible. They a ii testified a story corroborating each other". Further, at pages 64 to 67 of the record of appeal, the first appellate court considered the 4th, 6th and 7th grounds of appeal and disposed of them after assessing the available evidence. In particular, the court relied on the testimonies of PW1, PW5 and PW6, together with exhibits PI and P2. Upon analysing that evidence, it was satisfied that the ingredients of the offence of rape had been proved. It was through that analysis that the court concluded, at page 65 of the record of appeal, that, the appropriate sentence was 30 years' imprisonment rather than life imprisonment. That conclusion was derived from its finding, based on the testimonies of PW1, PW5 and PW6 and exhibits PI and P2, that the victim was 12 years old. Having reviewed the record, we agree with Ms. Tengeneza that the first ground of appeal is devoid of merit. It is accordingly dismissed.

Turning to the second ground, the appellant contends that, the first appellate court failed to consider his grounds of appeal as well as his defence. Ms. Tengeneza submitted, however, that, both courts below duly considered the appellant's defence and concluded that it did not weaken the prosecution case. She urged us to dismiss this ground. We are not persuaded by the appellant's complaint. As we observed while addressing the first ground, the first appellate court fully considered the grounds of appeal and the appellant's defence. We therefore agree that the second ground is likewise devoid of merit and dismiss it. With respect to the third ground, the appellant argues that, the prosecution evidence was inconsistent, contradictory and unreliable. Ms. Tengeneza took a contrary position. She submitted that, although a comparison between PW l's testimony and exhibit P2 (the PF3 prepared by PW6) might initially suggest inconsistencies, no material contradiction arises upon closer scrutiny. According to her submissions, PW1 testified as to when the incident occurred, when she was taken for medical examination, and that she returned home at midnight. Exhibit P2, dated 08/09/2021, indicates that PW1 was attended to at 9:55 p.m. But PW1, PW2, PW3 and PW4 testified that there was a search for the appellant that extended to midnight, only 10

to be suspended to the following day. Viewed in totality, there was no discrepancy in the witnesses' accounts, including as to the timing of the appellant's arrest. In essence, we are in agreement with Ms. Tengeneza's submissions. Although PW1 testified that she returned home at midnight, exhibit P2 indicates that she was attended to at 9:55 p.m. The record shows that efforts to locate the appellant began when PW1, PW2 and PW3 arrived home at 5:00 p.m., and informed PW5. PW3 testified that, the search continued into the evening and was abandoned when night fell, to resume the following day, 09/09/2021. There is, therefore, no contradiction in the witnesses' accounts. PW l's reference to arriving home at midnight relates to her return after the search had been called off. The third ground of appeal is accordingly unmeritorious and is dismissed. Turning to the fourth ground, the appellant contends that PW1 failed to promptly name him to PW5, as evidenced by his delayed arrest. Ms. Tengeneza submitted that, although PW1 did not immediately mention the appellant's name to PW5, she promptly named him to other witnesses. She urged us to dismiss this ground. We find this ground ill-conceived. The victim's testimony was clear and unequivocal that it was the appellant who raped her. As held in li

Selemani Makumba v. Republic [2006] T.L.R. 379, in rape cases the victim's testimony constitutes the best evidence. The record of appeal (at pages 8, 11 and 14) shows that, immediately after the incident, PW1 informed PW2 and PW3 that the appellant had raped her. She named him at the earliest opportunity. Given that these witnesses were found to be credible and reliable, that was sufficient. The fact that PW1 did not mention the appellant's name to PW5 does not detract from the prompt identification already made. Moreover, the appellant's arrest on the following day (09/09/2021) was not occasioned by any failure to name him. The evidence of PW1, PW2, PW3 and PW4 shows that villagers searched for the appellant in the forest and he was arrested on the next day at his residence. The fourth ground is therefore devoid of merit and is dismissed. As regards the fifth ground, the appellant contends that, the prosecution failed to call the investigating officer, whom he considers a material witness. However, Ms. Tengeneza submitted that, under section 152 of the Evidence Act, Cap. 6 R.E. 2019, the prosecution is not bound to call a particular number of witnesses to prove a fact. She maintained that PW4, the Village Chairman, was a material witness whose testimony sufficed. 12

It is settled law that, the number of witnesses is immaterial; what matters is the quality and relevance of the evidence adduced. A case is not proved by the multiplicity of witnesses but by the credibility and probative value of their testimonies. Even a single credible witness may suffice. In the present appeal, we are satisfied that, the failure to call the investigating officer, did not occasion any prejudice to the prosecution case. This ground is, likewise, unmeritorious and is dismissed. The sixth ground challenges whether the offence was proved beyond reasonable doubt. Ms. Tengeneza submitted that, this ground, lacks merit. The appellant was charged with statutory rape, which requires proof of three elements: the age of the victim; penetration; and the identity of the perpetrator. In the instant appeal, PW5, the victim's mother, testified that the victim was 12 years old and tendered exhibit PI showing the victim's year of birth. Exhibit P2, completed by PW6, assessed the victim's age at 11 years. In either case, the age falls within the statutory threshold. In Al- jabir Juma Mwakyoma v. Republic [2021] TZCA 527 (27 September 2021), relying on its earlier decision in Isaya Renatus v. Republic, Criminal Appeal No. 542 of 2015 (unreported), the Court held that: 13

"in sexual offences, proof o f age may be given by the victim, relative, parent\ m edical practitioner or, where available, by the production o f a birth certificate. The Court went on to say that, there may be cases where, on the authority o f section 122 o f the Evidence Act, the court may infer the existence o f any fact including the age o f the victim. It follows therefore that; a birth certificate is but one o f various means o f proving the victim ’s age in a sexual related offence" In view of the foregoing, and given that PW5, as the mother of PW1, established PW l's age, the element of proof of age was satisfied. Regarding penetration, the testimony of PW1 was sufficient, in line with the holding in Selemani Makumba v. Republic (supra). In addition, the evidence of PW5 and PW6, together with exhibit P2, corroborated PW l's account. This element was therefore proved. As to the identity of the perpetrator, the testimonies of PW1, PW2, PW3, PW4 and PW5 consistently pointed to the appellant. Both courts below made concurrent findings that these witnesses were credible. It follows that the sixth ground of appeal is devoid of merit and is hereby dismissed. 14

In the result, all the appellant's grounds of appeal lack merit. The appeal is accordingly dismissed in its entirety. DATED at MBEYA this 28th day of February, 2026. R. J. KEREFU JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL D. J. NANGELA JUSTICE OF APPEAL Judgement delivered this 2n d day of March, 2026 in the presence presence of the Appellant in person, Mr. Augustino Magessa, learned State Attorney, for the respondent/Republic and Mr. Soud Omary, Court Clerk; is hereby certified as true copy of the original. 15