Erick Hamis vs Republic (Criminal Appeal No. 762 of 2023) [2026] TZCA 179 (2 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: KEREFU. J.A., KAIRO, J.A., And NANGELA, J.A.) CRIMINAL APPEAL NO. 762 OF 2023 ERICK HAMIS................................................................................... APPELLANT VERSUS THE REPUBLIC.......................................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mbeya) (Nqunvale, JO dated the 29thday of May, 2023 in Criminal Appeal No. 25 of 2023 JUDGMENT OF THE COURT 23rd February & 2n d March, 2026 KEREFU, J.A.: The appellant, ERICK HAMIS, was arraigned before the Resident Magistrate's Court of Mbeya at Mbeya (the trial court), on the offence of rape contrary to sections 130 (1) (2) (e) and 131 (3) of the Penal Code, Chapter 16 of the Revised Laws (the Penal Code). The particulars of the offence on which the appellant was charged with were to the effect that, on 11th January, 2022 at Mapinduzi Area within the District and Region of Mbeya, the appellant had unlawfully carnal knowledge of a girl child aged eight (8) years. To conceal the victim's identity, we shall henceforth refer to her as 'the victim/

The appellant denied the charge laid against him and, as a result, the case proceeded to a full trial. To establish its case, the prosecution relied on the evidence of four witnesses and two documentary exhibits, to wit, the victim's clinic card (exhibit PI) and the Police Form No. 3 (exhibit P2). On his side, the appellant testified alone, as he did not call any witness. Briefly, the prosecution case, as obtained from the record of appeal, can be stated as follows: That, at the material time, (PW1), the mother of the victim was living at Iyunga -Mapinduzi Ward in Shua Village with her husband and their children, including the victim who was born on 24th May, 2015, as exhibited in the clinic card (exhibit PI). That, on 11th January, 2022, PW1 received sad news on the death of her father-in-law. Therefore, at around 13:00 hours, on the same day, she sent her daughter, the victim (PW2) to her aunt's home to report the death of her grandfather. PW2 obliged and went to the said aunt. It was the testimony of PW2 that, while on the way returning from the said aunt, she saw the appellant seated and holding a knife. The said appellant stopped and laid her down, undressed her and inserted his penis into her vagina and raped her. PW2 said, she felt pains. Thereafter, the said appellant discharged and warned her not to reveal

the ordeal to anyone lest he would kill her. PW2 stated further that she, thereafter returned home. That, in the following day, Sinahamu Abduli (PW3), one of her aunties, noticed that she was walking with difficulties and asked her what had happened. PW2 narrated the ordeal to her that, she was raped by the appellant and he threatened to kill her, if she reveals the ordeal to anyone. PW3 revealed the disgusting news to PW1. Subsequently, the matter was reported to Utengule Police Station and PW2 was taken to Shuya Dispensary for medical examination and treatment. At the said Dispensary, PW2 was attended by Ali Issa Mcherecheta (PW4), the Clinical Officer, who found that, the victim's vagina had bruises on labia majora, blood stains and it was swollen, an indication that it had been penetrated by a blunt object. PW4 recorded his findings in the PF3 (exhibit P2). In their evidence, PW1 and PW3 supported the narration by PW2. They both added that, they knew the appellant very well prior to the incident as they live together in the same street. PW1 added also that, the appellant is the son of his brother-in-law. In his defense, the appellant (DW1), admitted to know PW2 very well, as the daughter of his uncle. He, however, dissociated himself from the accusations levelled against him. He contended that, on 13th

January, 2022, he went to the shamba at Isuto Ward, Itete Village where he worked until 16:00 hours, when he returned home. That, having arrived at home, he was accused to have raped PW2. He was then arrested and taken to the Police Station and later, arraigned before the trial court. Having considered the evidence adduced by both parties, the trial court found that the charge against the appellant was proved to the required standard. Specifically, it placed much reliance on the evidence of PW2, the victim, whose evidence was found to have been corroborated by PW1, PW3 and PW4 together with exhibits PI and P2. Thus, the appellant was found guilty, convicted and sentenced to life imprisonment. The appellant's appeal before the High Court hit a snag, as the first appellate court dismissed the appeal and upheld the trial courts conviction and sentence. Still aggrieved, the appellant has preferred the present appeal. In the memorandum of appeal, the appellant raised five grounds, which can be conveniently paraphrased as follows: First, that, the evidence of PW2 was taken contrary to the mandatory requirements of section 135 (2) of the Evidence Act, Cap. 6 (the Evidence Act); Second, failure by the first appellate court to consider the appellant's grounds of appeal; third, both lower courts erred to ground the

appellant's conviction by relying on the evidence of family members, to wit, PW1, PW2 and PW3 who were incredible and unreliable witnesses as their evidence is tainted with contradictions; fourth, that, PW4's profession and qualifications were doubtful and unreliable; and finally, the appellant defence evidence was not considered. At the hearing of the appeal, the appellant appeared in person whereas 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 informed the Court that, it was, their colleague, Ms. Mtafya who will address the Court. When given an opportunity to amplify on his grounds of appeal, the appellant adopted them and preferred to let the learned State Attorney to respond first, but he reserved his right to rejoin, if need to do so would arise. We respected his choice and, we thus invited Ms. Mtafya to commence her response on the grounds of appeal. Ms. Mtafya started by declaring the respondent Republic's stance of opposing the appeal. She then started by arguing that, the fourth ground of appeal raised by the appellant is not worth consideration by the Court because it raises a new issue which was neither raised nor

determined by the first appellate court. On that basis, she implored us not to entertain the said ground, unless it involves a point of law. Having carefully examined the ground of appeal submitted by the appellant before the first appellate court as indicated at page 39 of the record of appeal before us, we readily agree with the submission made by Ms. Mtafya that, the fourth ground of appeal, is new and should not have been raised at this stage as, this Court is precluded from entertaining purely factual matters which were not raised and or determined at the first appeal. We have reaffirmed this position in our numerous decisions - see for instance, the cases of Abdul Athuman v. Republic [2004] TLR 151 and Sadick Marwa Kisase v. Republic, Criminal Appeal No. 83 of 2012 [2013] TZCA 389. In that regard, this Court will not entertain the said ground, as it raises issues of facts which were not canvassed and decided upon by the first appellate court. Having disposed of the said ground, we proceed to determine a crucial issue as to whether the case against the appellant was proved beyond reasonable doubt, which is the subject of the remaining grounds of appeal. However, before doing so, we wish to state that, this being a second appeal, under normal circumstances, we would not interfere with

concurrent findings of the lower courts if there were no mis-directions or non-directions on evidence. Where there are mis-directions or non directions on the evidence, the Court is entitled to interfere and look at the evidence with a view of making its own findings. See for example Director of Public Prosecutions v. Jaffari Mfaume Kawawa [1981] TLR 149 and Mussa Mwaikunda v. The Republic [2006] T.L.R. 387. We shall be guided by the above principle in disposing this appeal. Starting with the first ground, Ms. Mtafya challenged the appellant's complaint regarding the evidence of PW2 by referring us to pages 16 and 17 of the record of appeal and argued that, PW2's evidence was properly recorded, as the trial court had complied with the mandatory requirements under section 135 (2) of the Evidence Act. That, the learned trial Magistrate, before recording and receiving the said evidence, he clearly indicated that, PW2 promised to tell the truth to the court. She thus invited us to find the appellant's complaint unfounded. Having perused the record of appeal and considered the parties' submissions, we agree with the submission by Ms. Mtafya that, the appellant's complaint on this aspect, is baseless and it is not supported

by the record. It is undisputable fact that, at the time of giving his evidence, PW2 was a child aged nine (9) years and thus, a child of tender age in terms of section 135 (4) of the Evidence Act. It is also undisputable fact and, as correctly argued by Ms. Mtafya that, at page 17 of the record of appeal, PW2, before giving her evidence she promised to tell the truth to the court. As such, we find the appellant's complaint under the first ground unfounded. As for the second ground, the appellant's complaint is that, the first appellate court did not adequately consider his grounds of appeal, Ms. Mtafya referred us to pages 55 to 60 and argued that the appellant's complaint is not supported by the record, as the first appellate court adequately considered his grounds and rejected them. The learned Senior State Attorney insisted that, rejection of the appellant's grounds by the first appellate court does not mean that the same were not considered. To support her proposition, she cited the case of Kelvin Nyondo v. Republic [2024] TZCA 1255, and urged us to find the second ground devoid of merit. Having perused the record of appeal and considered the submission by the parties, we agree with Ms. Mtafya that, the appellant's complaint on this ground is not supported by the record, as indeed, the record bear it out at pages 55 to 60 that, all his grounds

were adequately considered by the first appellate court. On that basis and in terms of our previous decision in Kelvin Nyondo (supra), we find the second ground devoid of merit. On the third ground, the appellant contended that, the charge against him was not proved to the required standard. He specifically faulted both lower courts by relying on the evidence of PW1, PW2 and PW3 whom he said were family members, incredible and unreliable witnesses as their evidence is tainted with contradictions. To amplify on this point, he referred us to page 1 of the record of appeal where it was indicated that the offence was committed on 11th January, 2022, while PW1 and PW3 at pages 14 and 19 of the same record, testified that, the offence was committed on 13th January, 2022. That, the pointed-out contradictions had created doubts in the prosecution case which should be resolved in his favour. In her response, Ms. Mtafya argued that the prosecution case was proved beyond reasonable doubt through the evidence of PW2. She elaborated further that, the trial court and the first appellate court properly evaluated the evidence adduced and were satisfied that the evidence of PW2, the victim, which is the best evidence in cases of this nature, was sufficiently corroborated by PW1, PW3 and PW4. That, the

said evidence clearly narrated on how the appellant raped PW2. She also added that, in his testimony found at page 24 of the record of appeal, the appellant himself admitted to know both PW1 and PW2 very well before the incident as his relatives. She emphasized that, there is no law which prohibits family members to testify in court, what matters is their competency and credibility. On the pointed-out contradictions on the date of the incident, Ms. Mtafya argued that there is no any contradiction. She referred us to the charge and the evidence of PW2 and insisted that the offence was committed on 11th January, 2022. That, the date of 13th January, 2022 mentioned by PW1 and PW3, is related to the funeral and not on the date of commission of the offence. She therefore urged us to find the third ground devoid of merit. Having perused the record of appeal and revisited the evidence of PW1, PW2 and PW3, we agree with Ms. Mtafya that there is no any contradiction on the date when the offence was committed. PW1 at page 14 of the record of appeal, testified that, she received the information on the death of her father-in-law on 11th January, 2022, and around 13:00 hours, on the same day, she sent her daughter (PW2) to her aunt's home to relay that information. Again, in her testimony, PW2, the victim and the best witness in this case, testified at page 17 of the 10

same record that, while on her way returning from the said aunt, the appellant stopped and laid her down, undressed her and inserted his penis into her vagina and raped her. We thus agree that, the date of 13th January, 2022 mentioned by PW1 and PW3 and also the appellant himself related with the issue of funeral of the PW l's father-in-law and not the date of the commission of the offence. In addition, and on the appellant's complaint that, the lower courts relied on the evidence from family members (PW1, PW2 and PW3) to mount his conviction, we equally agree with Ms. Mtafya that, there is no law which prohibits family members to testify in court. Every person is a competent witness. At most what should be looked at, is the credibility of the respective witness and not otherwise. For this stance, see our previous decisions in the cases of Khatibu Kanga v. Republic, Criminal Appeal No. 290 of 2008 [2011] T7CA 203, Festo Mgimwa v. Republic, Criminal Appeal No. 378 of 2016 [2019] TZCA 92 and Ramadhani Kihiyo v. Republic [2006] T.L.R.323. Inthe latter case, the Court refrained from discounting the relatives' evidence and emphasized that: "The evidence o f related witnesses is credible and there is no rule o f practice or law which requires the evidence o f relatives to be ii

discredited, unless, o f course, there is ground for doing so. In this case, we find no reason for discounting the evidence o f the said related witnesses . " In the instant appeal, having revisited the evidence of PW1, PW2 and PW3, we are satisfied that, each one, gave a direct account on what she witnessed and what exactly transpired. We, therefore, find no compelling reason to discredit their evidence merely because they were family members. We are satisfied that, both lower courts having found them to be credible witnesses, they rightly relied on their evidence to mount the appellant's conviction. Accordingly, we find the appellant's complaint on this aspect unfounded. That said, we equally find the third ground with no merit. The appellant's last complaint is on the failure by the lower courts to consider his defence evidence. He contended that, both lower courts did not objectively evaluate and/or analyze his defence evidence and no reasons were assigned for such omission. Responding, Ms. Mtafya challenged the appellant's complaint that it was also not supported by the record. To clarify her argument, she referred us to pages 35 to 36 and 59 to 60 of the record of appeal, 12

respectively. She then urged us to dismiss the fifth ground for lack of merit. In rejoinder submission, the appellant did not have much to say other than urging us to consider his grounds of appeal, allow the appeal and set him at liberty. Having perused the record of appeal, we agree with Ms. Mtafya that, the appellant's complaint under this ground is not supported by the record, as it is clear at, pages 35 to 36 and 59 to 60 of the record of appeal, respectively, that both lower courts adequately considered and weighed the appellant's defence against the prosecution case but rejected it for being incapable of weakening the prosecution case. We wish to emphasize that, it is one thing to consider the defence case and it is quite another to accept it. It cannot be argued that the defence was not properly considered merely because its version was not accepted by the court. See the case of David Gamata and Another v. Republic, Criminal Appeal No. 216 of 2014 [2015] TZCA 362. In the event, we also find the fifth ground of appeal devoid of merit. For the foregoing reasons, we do not find any cogent reasons to disturb the concurrent findings of the lower courts, as we are satisfied that the evidence taken as a whole establishes that the prosecution's case against the appellant was proved beyond reasonable doubt. 13

In the event, we find the appeal devoid of merit and it is hereby 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 The Judgment delivered this 2n d day of March, 2026 in the presence of the Appellant in person, Mr. Augustino Magessa, learned State Attorney for the Respondent/Republic and Ms. Christina Mwanandenje, Court Clerk; is hereby certified as a true copy of the original. W. A. HAMZA DEPUTY REGISTRAR COURT OF APPEAL 14