Ibrahim Abukaka Kalebu vs Republic (Criminal Appeal No. 916 of 2023) [2026] TZCA 188 (2 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA fCQRAM: KEREFU. J.A.. KAIRO. J.A. And NANGELA, J.A.) CRIMINAL APPEAL NO. 916 OF 2023 IBRAHIM A8UKAKA KALEBU ................................................ ...............APPELLANT VERSUS THE REPUBLIC.................................................................................. RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mbeya) (Nounvale. J.) dated the 16th day of October, 2023 in Criminal Appeal No. 98 of 2023 JUDGMENTOFTHE COURT 19* February & 2’* * March, 2026. KEREFU, J.A.; IBRAHIM ABUKAKA KALEBU, the appellant herein, is currently serving a term of thirty (30) years' imprisonment following his conviction by the District Court of Rungwe at Tukuyu (the trial court), where he was charged on two counts. The first count was on 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 alleged that, on Is* January, 2022 in the evening hours, at Ibililo Village within Rungwe District in Mbeya Region, the appellant had unlawfully carnal knowledge of a girl child aged sixteen (16) years. To conceal her identity, we shall henceforth refer to her as 'the victim' and or simply a§ 'PW1.' The second count was on impregnating a school girl contrary to section 60A (3) of the Education Act, Cap. 353, as amended by section 22 of the Written Laws (Miscellaneous Amendment) (No. 2) Act No. 4 of 2016 (the Education Act). It was alleged that, on the same date, time and place, the appellant unlawfully impregnated the victim who was a Form IV student at Mpandapanda Secondary School. The appellant denied the charge and therefore, the case had to proceed to a full trial. To establish its case, the prosecution called a total of five witnesses and tendered three documentary exhibits namely, the clinic card (exhibit PI), the Police Form No. 3 (exhibit P2), and the School Attendance Register (exhibit P3). On his side, the appellant testified alone, as he did not summon any witness. The brief facts of the case and sequence of events leading to the arraignment and conviction of the appellant, as obtained from the record of appeal indicates that, PW1, was a pupil at Mpandapanda Secondary School. It was the testimony of PW1 that, she knows the appellant very well, as she used to pass outside his house while going to school. That, on 1st January, 2022 at around 12:45 hours while together with her two friends, Winfrida Charles (PW2) and Brenda, the appellant, who was also with his comrades took PW1 on the motorcycle and drove her to Kisanga, at Kiwira and took her in the bush. At the said bush, the appellant undressed and raped her. After the awful act, the appellant, took her again, on the said motorcycle and left her by the roadside where she met her parents, who were looking for her. Her parents started beating her following the said incident and she went home without revealing what had happened to her, for fear of being beaten again. However, after few months, she was found pregnant. PW l's account was supported by PW2, who added that, PW1 is her sister and the appellant is their fellow villager whom they knew each other very well prior to the incident. PW2 also used to pass at the appellant's house while going to school. On the fateful date, at around 18:45 hours, at Kupale, PW2 saw the appellant picking PW1 by force, on the motorcycle. That, she managed to recognize him, as it was not dark and there was enough light. She later reported the incident to PW l's parents and they went out to look for her. On her part, PW3, who is the PW l's mother, testified that, PW1 was bom on 24th January, 2006 at Igogwe Hospital. To establish that fact, PW3 tendered a Clinic Card (exhibit PI). PW3 testified further the, PW1 was a student at Mpandapanda Secondary School, but she was suspended for being pregnant. That, she discovered that PW1 was pregnant In June, \ 2022 and PW1 told her that the appellant is the one responsible. In addition, Amanyisye Nelson Mwakibinga (PW5), the PW1'$ class teacher at Mapandapanda Secondary School, testified that, PW1 was a Form IV student in their school, but since July she was not attending the school. PW5 tendered a School Attendance Register (exhibit P3). Dr. Justine Malekela (PW4), medically examined PW1 on 27th June, 2022 and confirmed that, PW1 was V h months pregnant. The F3 to that effect was tendered and admitted in evidence as exhibit P2. In his defence, apart from acknowledging that, he knows PW1, the appellant distanced himself from the accusations levelled against him. He testified that, he was arrested by the police on allegations of having raped and impregnated a schoolgirl. He contended that, he was not responsible for the alleged pregnancy, as it was discovered later that, the responsible person, was PW l's brother. He thus challenged the evidence of PW1, PW2 and PW3 that, they gave an untrue story before the trial court. On that basis, the appellant prayed to be allowed to conduct a DNA test to reveal the true father of the PW l's child. The appellant's prayer was granted by the trial court. However, the said prayer was not fulfilled, even after several adjournments of the hearing of the case. Having heard the evidence from both sides, the trial court was convinced that the prosecution had proved the case against the appellant to the required standard. Thus, the appellant was found guilty, convicted and sentenced on both counts. On the first count, he was sentenced to thirty (30) years imprisonment and five (5) years imprisonment for the second count. Ttie sentences were ordered to run concurrently. Aggrieved, the appellant unsuccessfully appealed to the High Court, as the learned High Court Judge, having analysed the evidence adduced during the trial, was of the similar view that the prosecution has managed to prove the case against the appellant to the required standard. Thus, the High Court dismissed the appeal and sustained the appellant's conviction and sentence. The decision of the first appellate court prompted the appellant to lodge the current appeal to express his dissatisfaction. In his substantive memorandum of appeal lodged on 30th May, 2024, the appellant raised one (01) ground of appeal. In addition, on 16th February, 2026, he lodged a supplementary memorandum of appeal with ten (10) grounds. However, for reasons that will shortly come to light, we do not deem it appropriate, for the purpose of this judgment, to reproduce them herein. At the hearing of the appeal, the appellant enjoyed the services of Mr. Luka Ngogo, learned counsel, who at the outset, prayed to abandon s the original memorandum of appeal lodged on 30th May, 2024. He also prayed to abandon the second, eighth, ninth and tenth grounds of appeal in the supplementary memorandum of appeal. He then, intimated that, he would argue the first, third, fourth and fifth grounds conjointly, while the remain grounds, i.e sixth and seventh would be argued separately. On the adversary side, the respondent Republic was represented by Ms. Mwajabu Tengeneza, learned Principal State Attorney assisted by Mses. Ellen Masululi and Veronica Mtafya, both learned Senior State Attorneys. At the outset, Ms. Tengeneza declared the respondent's stance of opposing the appeal and intimated that, she would argue the grounds of appeal in the manner proposed above by her learned friend. We appreciate that all learned counsel for the parties have clearly elaborated, at length all grounds of appeal in their submissions. However, for the purposes of our determination, we will mainly consider the submissions they made in respect of the sixth ground. The said ground of appeal states that: "There is variance between the charge and the evidence adduced before the tria l court regarding the place where the alleged offence was committed. ” 6 Submitting in support of the sixth ground of appeal, Mr. Ngogo argued that, the prosecution case was not proved beyond reasonable doubt as the charge,'which is the foundation of the case, was at variance with the evidence adduced by the prosecution witnesses during the trial. To clarify, Mr. Ngogo referred us to page 1 of the record of appeal and argued that, while the particulars of the offence indicated that the offence was committed on Is*January, 2022, in the evening hours at Ibililo Village, in her testimony, found at pages 10 and 11 of the same record, PW1 testified that, the offence was committed on Is * January, 2022 at 12:45 hours at Kisanga-Kiwira bush. PW1 stated further that, the said offence was committed in June, 2022, and the appellant left her at 20:00 hours. Mr. Ngogo also added that, PW2, the friend of PW1, who was together with PW1, on the fateful date, testified at page 11 of the record of appeal that, the appellant picked PW l at Kupela at 18:45 hours. It was the argument of Mr. Ngogo that, given the particulars of the offence indicated in the charge and the evidence adduced by PW l and PW2, it is not clear, as to when and where exactly the alleged offence was committed. In the circumstances, the learned counsel argued that, the prosecution was required to amend the charge under section 251 (1) and (2) of the Criminal Procedure Act, Chapter 20 of the Revised Laws (the CPA), but that was not done. That, since, the evidence adduced by the prosecution witnesses does not support the charge laid against the appellant, the same was not proved to the required standard and the matter should be resolved in favour of the appellant. To bolster his argument, he cited the case of Himid Shangwa v. Republic, Criminal Appeal No. 17 of 2022 [2025] T2CA 312. He then, finally, urged us to allow the appeal, quash the conviction and set aside the sentence imposed on the appellant and set him at liberty. In her response, although, Ms. Tengeneza readily conceded that there are those contradictions and variance between the particulars of the offence and the evidence of PW1 and PW2 on where exactly the offence was committed, she cited section 64 (1) (g) of the Evidence Act, Chapter 6 of the Revised Laws (the Evidence Act) and urged us to take judicial notice that Kisanga - Kiwira and Kupale are all found in Ibililo Village. She thus urged us to find that the sixth ground is meritless. In a brief rejoinder, Mr. Ngogo challenged the submission by Ms. Tengeneza by arguing that, for the prosecution to prove the case against the appellant beyond reasonable doubt, the charge and the evidence were required to be specific on when and where exactly the appellant committed the offence. He therefore, once again, urged us to allow the appeal and set the appellant free. s Having carefully scrutinized the record of appeal and considered the rival arguments by the learned counsel for the parties in the light of the record of appeal before us and the ground of complaint, the main issue for our determination is whether the prosecution case was proved to the required standard. However, before doing so, it is crucial to state that, this being a second appeal, under normal circumstances, we can only interfere with concurrent findings of the lower courts if there are mis-directions or non directions on evidence with a view of making our own findings. See for example Director of Public Prosecutions v. Jaffari Mfaume Kawawa [1981] T.L.R. 149 and Mussa Mwaikunda v. The Republic [2006] T.L.R. 387. Therefore, in determining this appeal, we shall be guided by the above stated principle. Our starting point is the charge which was preferred against the appellant. There is no dispute that before the trial court the appellant was charged with two counts oh the offence of rape and impregnating a school girl. It is also clear to us that, both learned counsel for the parties are at one that, there was variance between the particulars of the offences indicated in the said charge and the prosecution evidence on where exactly the offence was committed, but they took different approaches on its consequences. While Mr. Ngogo argued that the said variance had 9 weakened the prosecution case as the evidence adduced is not compatible with the particulars of the offence, Ms. Tengeneza urged us to take judicial notice of the same and conclude that the prosecution case against the appellant was proved to the required standard. Therefore, in determining this ground, we find it appropriate to reproduce the particulars of the offence for the first count, as per the charge sheet found at page 1 of the record of appeal, which reads as follows: "CH ARG E 1 st c o u n t O FFEN CE SECTIO N A N D LA W: Rape c/s 130 (1) (2) (e) and 131 (1) o f the Pena! Code Cap. 16 o f Pena! Code. PA R T IC U LA R S O F THE O FFEN CE That IBRAHIM ABUKAKA KALEBU charged on 01st Day o f January, 2022 a t evening tim e a t I b ililo V illa g e w ithin Rungwe D istrict in Mbeya, d id unlaw fully have sexual intercourse to one g irl aged 16 yrs. *[Em phasis added]. From the above particulars of the charge sheet, it is dear to us that, the place on where the commission of the offence took place is at variance with places mentioned by PW1 and her friend; PW2 who alleged to be together on the fateful date. It is also clear that, even the date on when the offence was committed is at variance. For the sake of clarity, in her evidence, PW1 at pages 10 to 11 of the record of appeal, testified that, "...about tfia t incident, the accused person took me to K isa n g a , a t K iw ira in th e b u sh and Ibrahim took out m y clothes, skirt, pants and skintight and raped me, and he took me again on the m otorcycle and le ft me on the roadside. H is friend d id not do anything...! am sure that the cause o f that pregnancy is being raped in Ju n e ." (Em phasis added]. Then, during cross examination at page 11 of the same record, PW1 stated that, the appellant took her to Kisanga bush and left her at Kapela at around 20:00 hours. Furthermore, PW2 who alleged that she was also at the scene of crime with PW l on the fateful date, testified that: 7 rem em ber on 1/1/2022, I was with PW l and Ibrahim cam e with a m otorcycle and took the handbag o f P W l and forced her to clim b h is m otorcycle. Ibrahim was with another. So, they carried her by force and took her to the m otorcycle. W e w ere a t K a p e la a t th a t tim e ." [Em phasis added]. From the above extracted particulars of the charge and the evidence of PW l and PW2, it is clear that there was variance on where exactly the n alleged offence was committed. That, while the particulars of the offence indicated that the offence of rape was committed at Ibililo Village, Rungwe District in Mbeya Region, in their evidence, PW1 and PW2 mentioned different time, dates and places where the alleged offence was committed. For instance, PW1 stated that she was raped at the Kisanga bush which is in Mbeya Rural District and that, she was left at Kapela which is in Rungwe District. PW2 supported PW1 at page 11 of the same record, when she also testified that, at that time they were at Kapela. Pursuant to section 251 (1) of the CPA, when such a situation happens, the charge should be amended. The said provision provides for the steps to be taken when there is variance between the charge and the evidence. It confers powers on the trial court to allow amendment of the charges to meet the pertaining circumstances. Therefore, in the case at hand, after the prosecution had noted that there was variance between the charge and evidence, it was required to seek leave to amend the charge, but, unfortunately, that was not done. At this juncture, we are compelled to emphasize what we stated in Leonard Raphael & Another v. Republic, Criminal Appeal No. 4 of 1992 (unreported) that: "Prosecutors and those who preside over crim inal tria ls are rem inded that when, as in th is case, in 12 the course o f tria l the evidence is a t variance with the charge and discloses an offence n ot la id in the charge, they should invoke the provisions o f section 234 o f the CPA (now section 251) ... and have the charge am ended in order to bring it in lin e with the evidence . " Again, in the case of Abel Masikiti v. Republic, Criminal Appeal No. 24 of 2015 [2015] TZCA 8, when we were faced with an akin situation and considered the consequences of the failure by the prosecution to amend the charge after detecting that the same is at variance with the evidence adduced by the witnesses, we observed that: "...If there is any variance o r uncertainty in the dates then the charge m ust be am ended in term s o f section 234 o f the CPA (now section 251). I f this is not done the preferred charge w ill rem ain unproved, and the accused sh all be entitled to an acquittal. Shot o f that a failure o f ju stice w ill occur.* Likewise, in the instant appeal, the failure by the prosecution to amend the charge is fatal and prejudicial to the appellant hence leads to serious consequences to the prosecution case as it was stated by this Court in various cases some of which have been cited to us by Mr. Ngogo. We however wish to add more cases such as, Salum Rashid Chitende v. Republic, Criminal Appeal No. 204 of 2015 (unreported), Marki Said @ 13 Mbega v. Republic, Criminal Appeal No. 204 of 2018 [2022] TZCA 667, and Tito Paulo Kuchungura v. Republic, Criminal Appeal No. 570 of 2020 [2023] TZCA 17992. Specifically, in the former case, we stated that: "When sp ecific d ate, tim e a n d p la c e is m e n tio n e d in th e ch arg e sh eet, the prosecution is obliged to p ro ve th a t th e o ffe n ce w as co m m itte d on th a t s p e c ific d ate, tim e a n d p la ce . ” 1Em phasis added]. The totality of the foregoing leads us to the conclusion that the prosecution case was tainted with doubts which in our criminal jurisprudence requires us to resolve in favour of the appellant. We therefore find the submission made by Ms. Tengeneza on this aspect, to be misconceived, taking into account the prosecution's legal burden of proving a beyond reasonable doubt. It is our further view that had the trial court and the first appellate court considered the issues discussed herein above, they would have come to the inevitable finding that, it was not safe to mount the appellant's conviction based on the evidence of PW1 and PW2. In the event, we find merit in the sixth ground of appeal. Since the above finding disposes of the appeal, we see no compelling reasons to consider the remaining grounds of appeal raised by the appellant. In the event, we allow the appeal and accordingly quash the conviction and set aside the sentence imposed on the appellant. Consequently, we order for immediate release of the appellant from prison unless he is being held for some other lawful cause. DATED at M BEYA this 2nd day of March, 2026. The Judgment delivered this 2nd day of March, 2026 in the presence of the Appellant in person, Mr. Augustino Magessa, learned State Attorney for the Respondent/Republic via virtual Court and Ms. Christina Mwanandenje, Court Clerk; is hereby certified as a true copy of the R. J. KEREFU JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL D. J. NANGELA JUSTICE OF APPEAL original. £ \ W. A. HAMZA \ DEPUTY REGISTRAR V COURT OF APPEAL W. A. HAMZA