Inkubu Impyate vs Republic (Criminal Appeal No. 472 of 2024) [2026] TZCA 178 (2 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA ( CORAM: KEREFU, J.A.. KAIRO. 3.A. And NANGELA. J.A.^ CRIMINAL APPEAL NO. 472 OF 2024 INKUBU IMPYATE .................................................................. APPELLANT VERSUS THE REPUBLIC....................................................................RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mbeya) (Ngunyale, J) Dated the 25th day of May, 2023 In Criminal Appeal No. 31 of 2023 JUDGMENT OF THE COURT 17th February & 2n d March, 2026 KAIRO, J.A.: This is a second appeal by the appellant, Inkubu Impyate. He is seeking to challenge the decision of the High Court of Tanzania at Mbeya in Criminal Appeal No. 31 of 2023, which confirmed the conviction and sentence imposed on him by the District Court of Mbeya at Mbeya, for the offence 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). It was alleged by the prosecution that, on diverse dates of April, 2022, at Shigamba Village within Mbeya Rural District and Region of Mbeya, the appellant had unlawful carnal knowledge of a girl aged 7 years. For the purpose of protecting her identity, she will be referred to

as the victim or PW1 as she so testified at the trial court. The appellant denied the charge. However, after a full trial, he was found guilty thus, convicted and sentenced to life imprisonment. To appreciate what culminated to this appeal, it is imperative to state, albeit briefly, the relevant facts as revealed in the record of appeal. It is noteworthy that, the victim, her mother Sarah Alfayo (PW2) and her great grandmother Jestina Simon Sanga (PW4), were living together as a family when the said incident occurred. It all started on 4/5/2022, evening hours when (PW4) decided to bath the victim. According to the testimony of PW4's, she noted that, the victim's hymen was ruptured and her vagina had a hole like structure. When she asked the victim as to what had happened to her private parts, the victim told PW4 that, she had given her vagina to Inkubu, their neighbour, who is the appellant in this case. PW4 relayed the disgusting news to PW2 on the same day when she came back from her activities. They decided to go and inform the Ten Cell Leader who advised them to report the incident to the Police Station. Thus, the incident was reported to the Police Station and they were issued with a PF3 so that the victim could go to the hospital for medical examination. The appellant (DW1) was arrested and his statement was recorded by WP 9471 D/CPL Zaina (PW5) on 5/5/2022 but he denied to

have raped the victim. He was later arraigned to court to answer the charge of rape. The victim was attended and medically examined by Dr. Daniel Elifuraha (PW3) who after examination found that, the victim's private parts had been injured and her hymen perforated. PW3 then filled his findings into the PF3 which was later admitted in evidence as exhibit P2. In his defence, the appellant apart from denying the allegations, he told the trial court that the case was fabricated as he owes the victim's family TZS. 370,000.00. Besides, he was impotent as such, he could not have raped the victim. Nevertheless, he was convicted and sentenced as earlier stated. His appeal to the High Court did not sail through, since the first appellate court upheld the trial court's decision and dismissed the appeal in its entirety. Still determined to prove his innocence, the appellant approached the Court armed with three grounds of appeal which can conveniently be grouped into the following complaints: One, that, both lower courts erred to convict and sentence the appellant basing on a doubtful evidence of PW3. Two, that, the lower courts erred to convict and sentence the appellant while the prosecution failed to prove the case beyond 3

reasonable doubt. Three, that, both lower courts erred to disregard the appellant's defence of impotence which was also corroborated by DW2. 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 invited to amplify his grounds of appeal, the appellant adopted them and preferred to let the respondent Republic respond to them first, but reserved his right to re-join later, if need be. Ms. Masululi addressed the Court on behalf of her colleagues. In her brief response, she refuted the appellant's complaint in the first ground of appeal that, the lower courts erred to place reliance on the evidence of PW3 which was marred with doubts. To verify her argument, she referred us to pages 14-15 of the record of appeal wherein PW3 testified that, after examining the victim, he found injuries into her private parts and her hymen perforated which indicated that, she was penetrated. She implored the Court to disregard the complaint in the first ground of appeal for lack of merit. The second and third grounds of appeal were conjointly argued by the learned Senior State Attorney. She contended that, the complaints

that the prosecution case was not proved beyond reasonable doubt and that, the appellant's defence of impotence was not considered, are unfounded. It was her submission that, the appellant has been charged with statutory rape which requires the proof of three ingredients: the age of the victim, penetration and the perpetrator. She went on to submit that, the age of the victim was proved by PW2, the victim's mother at page 12 of the record of appeal. She cited the case of Rutoyo Richard v. Republic, (Criminal Appeal No. 114 of 2017) [2020] TZCA 298 (16 June 2020) which listed a parent to be among the persons who can prove the age of the victim. As for penetration, Ms. Masululi submitted that, the ingredient was proved by the victim at pages 10 and 11 of the record of appeal where she recounted her ordeal and the threats she got from the appellant, warning her not to disclose the information to anyone. She added that, the victim was firm on that aspect and told the court that, the appellant had raped her three times. Ms. Masululi went on to argued that, the victim's testimony on penetration was corroborated by PW3, the Doctor, who examined her and PW4 who was the first person to notice the deformity on the victim's

private parts. She concluded therefore that, the penetration part was proved by PW1, PW3 PW4 and exhibit P2. Connecting with the appellant's defence that he is impotent, Ms. Masululi implored the Court to consider it as an afterthought. Relying on the provision of section 121 of the Evidence Act, Cap 6 of the Revised Laws, (the Evidence Act), the learned Senior State Attorney submitted that, the fact that, he is impotent, and therefore, could not have raped the victim is within the knowledge of the appellant himself. For that reason, the appellant had the legal burden of proving it, but he did not do so. As such, she argued, his complaint is unfounded and implored the Court to so hold. To substantiate her arguments, Ms. Masululi cited the case of Nyamasheki Malima @ Mengi v. Republic, (Criminal Appeal No. 177 of 2020) [2020] TZCA 326 (9 June 2022). As regards the third ingredient on who is the offender, Ms. Masululi submitted that, PW1 mentioned the appellant to PW4 as her rapist immediately after being asked by her which assured her credibility and reliability. It was her further submission that, though the incident occurred in April, 2022 and the victim mentioned him in May, 2022, but the victim's delay in mentioning her assailant is justifiable following the appellant's threats, warning her not to inform anyone on the incident.

To further prove that the victim knows the appellant very well, Ms. Masululi submitted that, the victim at page 12 of the record of appeal told the trial court that, the appellant was living near their house. The learned Senior State Attorney therefore was of the view that, the complaints in the second and third grounds were again of no substance, basing on the submitted arguments. In conclusion, Ms. Masululi prayed the Court to dismiss the appeal in its entirety, for want of merit. In his rejoinder, the appellant maintained that, he is impotent and thus, he could not have raped the victim. Besides, his request to have medical examination conducted on him was refused by the lower courts. He also insisted that, the evidence of PW3 is doubtful due to inconsistences on his oral and his written findings in exhibit P2. He therefore prayed the Court to find his grounds with merit, allow his appeal and set him free. Before we start determining the appeal, we wish to reiterate the consistently restated legal stance that, this being a second appeal, the Court would sparingly interfere with the concurrent findings of facts of the lower courts unless, they are perverse and unsupported by evidence resulting to miscarriage of justice. [See: Director of Public Prosecutions v. Jaffari Mfaume Kawawa [1981] T.L.R. 149, Paulo

s/o Malyanga v. DPP (Criminal Appeal No. 2 of 1986) [1986] TZCA 55 (3 December 1986 TANZLII)]. It is further a settled principle of law that, in sexual offences, rape inclusive, the best evidence comes from the victim. [See: Selemani Makumba v. Republic (2006) T.L.R. 379]. We shall be guided by the above stated legal principles in disposing this appeal. Having heard the rival arguments and scanned the record before us, the issue for our determination on the first ground is whether the evidence of PW3 is doubtful for being soiled with inconsistencies. We need not belabour on this issue. When testifying in Court, PW3 stated that, he received the victim by the name of Aika Mwamlima for medical examination on 5/4/2022. However, exhibit P2 into which PW3 has recorded his findings after the said medical examination reveals, that, the victim examined was Rosta d/o Aika and the examination date was 5/5/2022 (pages 14 and 24 of the record of appeal respectively). Notably, the original record of appeal bears similar information. On this account therefore, there is no gainsaying that the two pieces of evidence given by PW3, one being oral and another one written, are inconsistent as correctly observed by the appellant. The information raise doubts as to whether PW3 was referring to one and the

same victim. This, in our view, is material contradiction that goes to the root of the matter. To say the least, the self-contradictory evidence of PW3 has corroded his credibility. [See: Tauta Kikoris v. The Republic, (Criminal Appeal No. 94 of 2009) [2022] TZCA 327 (19 November 2011 TANZLII)]. In that regard therefore, Ms. Masuluili's rebuttal is with profound respect, incorrect. The only remedy in our view is to discount the evidence of PW3, both oral and exhibit P2, as we hereby do. The effect of discounting the said evidence shall be discussed in the next complaints, particularly, the second complaint on the failure by the prosecution to prove the case to the requisite standard. We now turn to the second and third grounds of appeal which has two limbs of complaints; one, that the case was not proved beyond reasonable debt and two, that the appellant's defence of impotence was not considered despite being corroborated by DW2, the appellant's wife. Starting with the first limb, we agree with Ms. Masululi that, the offence the appellant was charged with was statutory rape. For statutory rape, the prosecution is required to prove: one, the age of the victim; two, penetration; three, the perpetrator. [See: Isaya Renatus v. Republic, (Criminal Appeal No. 542 of 2016) (Criminal Appeal No. 542 of 2015) [2016] TZCA 218 (29 April 2016 TANZLII)]. Before proceeding with our analysis, we wish to state that, we shall determine the aspect of

penetration in conjunction with the appellant's defence as regards his potency as the two relate. In the case at hand, the age of the victim was proved by PW2, the mother of the victim who told the trial court that, the victim was born on 23/6/2014, so by the time the offence was committed in 2022, she was about seven years old. It is a settled law that, the age of the victim can be proved by a parent among other persons. In the cited case of Rutoyo Richard v. Republic (supra) the court observed as follows: - "The age o f victim o f rape can be proved by either the victim, a parent, a dose relative, a dose friend, a teacher o f school where the victim was schooling or any person who knows the victim Relying on the above authority, we find that, the age of the victim in this case was proved. As earlier intimated, we will determine the issue whether or not there was penetrator in conjunction with the defence of impotence raised by the appellant when defending himself. The presence of penetration was again, proved by the victim. In her testimony at page 10 of the record of appeal, the victim in very clear 10

words testified as follows: "he stripped o f my clothes, he put the dudu he used to urinate in my organ I used to urinate." The victim even recounted how many times the appellant ravished her when she said "He had done this thrice" { page 11 of the record of appeal). We take the word "dudu" means a penis as we have so held in our previous decisions. [See: Mathayo Laurence William Mollel v. Republic, (Criminal Appeal No. 53 of 2020 [2023] TZCA 52 (20 February 2023) and Filbert Gadson@ Pasco v. Republic, (Criminal Appeal No. 267 of 2019 [2021] TZCA 360 (5 August 2021) both from TANZLII], to mention but a few. In addition, her evidence was corroborated by PW4 her great grandmother who noted an indifference in the victim's private parts and when PW4 asked her, the victim said that, she had given the vagina to the appellant (page 16 of the record of appeal). Thus, despite discounting the evidence of PW3 and exhibit P2, we still hold that the aspect of penetration was proved. We are aware that the appellant pleaded impotence when defending himself at the trial court. He raised the said defence in ground number six in his petition of appeal at the High Court and repeated it in his third ground before the Court insisting that, he could not have raped the victim while his manhood is not functioning. It is also on record that, the appellant called his wife (DW2) to confirm that, the appellant could not perform sex since 2017 insinuating i i

that, by the time when the offence was committed, he was already impotent. First and foremost, we want to put it clear that, both lower courts considered the said defence and dismissed it after concluding that, it did not punch holes in the prosecution case. That it was only an afterthought as it was raised by the appellant for the first time in his defence. After the careful perusal of the record of the Court, we observed that, the trial court and the High Court at pages 38 and 56 respectively, have thoroughly analysed the appellant's defence of impotence and held that the same was not proved. For ease of reference we wish to quote the relevant excerpts concerning this issue at pages 38 and 56 of the record of appeal starting with the trial court where it stated that: "In the instant case, the evidence o f the accused that he is impotent is patently lacking and given the strong evidence o f the prosecution to the contrary as depicted supra, such impotency is highly improbable and implausible bearing the fact that DW2 explained that she had five issues with the accused and hence the accused was once potent In Aloyce Maridadi v. Republic, Criminal Appeal No. 208 o f 2016, [2017] TZCA 244 (6 July 2017 TANZLII), the Court o f Appeal o f Tanzania had endorsed that, good and cogent

reasons for not believing a witness include the fact that the witness has given improbable and implausible evidence or that the evidence has materially contradicted any other witness or witnesses. That is therefore, another reason for not believing DW1 and DW2 for their evidence on the accused's impotency is improbable and implausible as explained above" Determining the same issue of the appellant's claim of impotence the High Court had this to say at page 56 of the record of appeal: "The appellant in the &h ground o f appeal has complained about his inability to have sex and that his defence was not considered. On the complaint o f the inability to have sex, in my view I support the argument o f the respondents attorney that the same is an afterthought. It is an afterthought because it has been ruled that the prosecution proved that the victim was been penetrated by the appellant on diverse dates early in April 2022 and on the other side, the appellant was free to bring such evidence to building his case so as to raise doubts on the prosecution case" As alluded to above, again this issue was raised by the appellant in the third ground in this appeal. We are in agreement with the reasoning of the lower courts and further join hands with Ms. Masululi's reliance on

the provision of section 121 of the Evidence Act to the effect that, the appellant had the burden to prove the claimed non-functioning of his manhood as the fact was within his own knowledge. The provision states: "121. -(1) When a person is accused o f an offence, the burden o f proving the existence o f circumstances bringing the case within any exception or exemption from , or qualification to, the operation o f the law creating the offence with which he is charged and the burden o fproving any fact especially within his knowledge is upon him: Provided that, such burden shall be deemed to be discharged if the court is satisfied by evidence given by the prosecution, whether in cross- examination or otherwise, that such circumstances or facts exist: Provided further that, the person accused shall be entitled to be acquitted o f the offence with which he is charged if the court is satisfied that the evidence given by either the prosecution or the defence creates a reasonable doubt as to the guilt o f the accused person in respect o f that offence " Fortunately, this provision has been interpreted in our various decisions like in Nguza Viking @ Babu Seya & Three Others v. Republic Criminal Appeal No. 56 of 2005 (unreported), Nyamasheki 14

Malima @ Mengi v. Republic (supra) and Leonard Mkumbo v. Republic (Criminal Appeal No. 574 of 2021) [2024] TZCA 764 (19 August 2024 TANZLII), to mention but a few. In Nguza Viking @ Babu Seya & Three Others v. Republic (supra) the Court dealt with a likewise scenario and held as follows: "the question as to whether the 1st appellant's penis was functioning or not was one within his knowledge. Under section 114 (1) o f the Evidence Act (currently 121), the burden was on him to prove that he was impotent He has not done so. The case does not fall within any o f the provisions given in the said section. Under the circumstances we find that the offence o f rape in count 7 was proved in respect o f the 1st appellant" Likewise, in the instant, case the appellant did not bring any evidence at the trial court to prove his impotence. Basing on the cited authorities therefore, we equally find his defence an afterthought as correctly ruled out by the High Court. We are further alive to the testimony of DW2 on that aspect. However, we find that to be a mere assertion as well which cannot be taken as a proof, particularly, in the wake of her testimony during cross examination where she stated to have been blessed with five issues in her 15

marriage with the appellant (page 23 of the record of appeal). This means the appellant was once potent. As such, the question of his impotence at the time the offence was committed, needed proof which was supposed to be given by none other, than the appellant himself. All in all, we find the complaint in ground number three unfounded and proceed to dismiss it. Relying on the same analysis, we also consider the other defence that the case was fabricated because he owes the victims' family TZS. 370,000.00 unfounded as well for being an afterthought. Another aspect to be proved is the offender. It is on record that, from the very beginning when PW4 observed some abnormalities is the victim's private parts and asked her, the victim was unequivocally clear that, her rapist was Inkubu, the appellant in this case. The victim was firm and consistent throughout in mentioning the appellant to be the perpetrator. She narrated on how the appellant told her to go to his house after school hours where he was living alone and got hold of her. The victim even explained what is inside the room of the appellant into which he used to ravish her (page 10 of the record of appeal). These assertions were not controverted by the appellant which denotes acceptance of the veracity of the said testimony. [See: Nyerere Nyague v. Republic, Criminal Appeal No. 67 of 2010]. The victim further stated, at page 12 of 16

the record of appeal that, the appellant was a neighbour, a fact which was corroborated by PW4 at page 16 of the record of appeal who further added that, the appellant and his friend used to watch TV at her home. These facts coupled with the uncontroverted testimony by the victim that, the appellant had ravished her thrice, is an assurance of an unmistaken recognition of the appellant by the victim. It is the settled stance of law that recognition is more reliable than identification of a stranger [see: Jumapili Msyeta v. Republic, (Criminal Appeal No. 110 of 2014) [2015] TZCA 234 TANZLII]. We are aware that the incident occurred in April, 2022 but the victim mentioned the appellant in May, 2022, that is, after the lapse of almost a month. Nevertheless, we hold the view that, the said delay is justifiable considering the threats the appellant imposed on the victim (page 11 of the record of appeal) as correctly argued by Ms. Masululi. That apart, the victim immediately mentioned the appellant when asked by PW4, to which we take to be the earliest mentioning of the appellant in the circumstance which is an indication of her firm credibility and that, she is a witness of truth, worth relying. [See: Marwa Wangiti Mwita v. Republic & Another, [2002] T. L. R. 39]

We therefor agree with Ms. Masululi that the question as to who was the offender, was perfectly answered by the victim, being the best witness in this case. See Selemani Makumba v. Republic (supra). In the upshot, we find nothing to make us disturb the concurrent findings of the lower courts having found meritless all of the grounds of appeal as we have endeavoured to discuss above. The appeal therefore is devoid of merit and is hereby dismissed in its entirety. DATED at MBEYA this 28th day of February, 2026. 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. R. J. KEREFU JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL D. J. NANGELA JUSTICE OF APPEAL ^ DEPUTY REGISTRAR ||; COURT OF APPEAL W. A. HAMZA / 18