Alex Peter Mgoba vs Republic (Criminal Appeal No. 459 of 2023) [2026] TZCA 148 (27 February 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: KEREFU. J.A., KAIRO, J.A. And NANGELA. J.A.^ CRIMINAL APPEAL NO. 459 OF 2023 ALEX PETER MGOBA .................................................................. APPELLANT VERSUS THE REPUBLIC...................................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mbeya) (Ngiinygle, 3) Dated the 9th day of May, 2023 In Criminal Appeal No. 6 of 2023 JUDGMENT OF THE COURT 23rd & 27th February, 2026 KAIRO, J.A.: The appellant was charged 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), before the District Court of Rungwe at Tukuyu. It was alleged that, on 24/10/2021 at around 14.00 hrs at Buliyaga Village within Rungwe District in Mbeya Region, the appellant had unlawful carnal knowledge of a girl child aged 11 years. In this judgment she will be referred as the victim or PW2 as she so testified at the trial court so as to conceal her identity. The appellant denied the charge and the case went to a full trial. At the end of the trial, the trial court was satisfied that, the prosecution i

case managed to prove the case beyond reasonable doubt, and thus convicted the appellant and sentenced him to life imprisonment. Briefly, the facts leading to this appeal as discerned from the record are as follow: The victim was studying at Bagamoyo Primary School and was the appellant's niece. The two were all living in the same house but the appellant had a separate room. On the fateful day, the appellant came back home and found the victim alone, watching television in the sitting room while her mother (PW1) was away. The appellant called the victim in his room pretending that, he wanted her to take some money somewhere. The victim obliged and went to his room. No sooner than the victim entered, the appellant pulled her to his mattress and ordered her to undress her clothes. Upon refusal, the appellant undressed her by force and went ahead to also undress himself. He then took his manhood and inserted it into the victim's private parts while covering her mouth to prevent her from raising an alarm. The appellant then threatened her not to tell anybody, lest he will kill her. The victim heeded to the threats. On 25/10/2021, she went to school as usual. The class teacher (PW3) assembled the pupils who did not attend school on Saturday, including the victim and ordered them to kneel down as a punishment for their absenteeism. However, the victim failed to kneel and when asked, 2

she said that her thighs were paining. PW3 called the victim to the office and queried why she was feeling the said pains. The victim told PW3 the ordeal she underwent in the hands of the appellant. PW3 took up the matter and broke the shocking news to PW1. Back at home, PW1 checked the victim's private parts and noted the presence of bruises and some discharge of whitish dirty substance. When the appellant was asked about the commission of the offence, he denied. PW1 informed the street chairman of the incident and was advised to report the matter to the police. PW1 went together with the victim to the police station where a PF3 was issued so that the victim could go to the hospital for medical examination. At the hospital, she was examined by Dr. Hilda Faustine Kawogo (PW4) who found that, her hymen was perforated. PW4 filled her findings in the PF3 which was later admitted in evidence as exhibit P2. In his defense, the appellant, as earlier stated, denied the allegation and stated that, the case, was fabricated due to a family dispute that was existing. He further raised a defence of alibi claiming to be at his farm harvesting ginger from 23/9/2011 and came back home on 27/9/2021, thus, insinuating not to be at home when the incident occurred. Nevertheless, he was convicted and sentenced as earlier stated.

Aggrieved, the appellant appealed to the High Court challenging both the conviction and sentence meted on him. After its analysis, the first appellate court found the offence was proved to the requisite standard. However, it found that, the provision relating to punishment was wrongly inserted as the victim was above 10 years old whose proper sentence was a jail term of 30 years in prison. It therefore, substituted the life sentence imposed to 30 years'jail term. The appellant was further aggrieved hence, this second appeal. Initially, the appellant had lodged a memorandum of appeal comprising of two grounds on 14/9/2023. Later, he added three grounds in the supplementary memorandum of appeal lodged on 14/9/2023, thus making a total of five grounds. For convenience purposes, these may be summarised into the following complaints: one, that the High Court erred to dismiss the appellant's appeal without evaluating the petition of appeal, as a result, it ended up dismissing the appeal. Two, that the appellant's defence was ignored by both lower courts. Three, that both lower courts erred to ground the appellant's conviction basing on the hearsay evidence of PW1 and PW3. Four, that both lower courts erred to ground the conviction of the appellant relying on the incredibleevidence of PW2 whereby she mentioned to PW3, that Peter was herrapist, but when

testifying in court, she mentioned the appellant as a rapist. Five, both lower courts erred for failing to draw adverse inference for the prosecution's failure to call material witnesses to wit; the street chairman and investigation police officer to prove the commission of the offence. When the appeal was called on for hearing, the appellant fended for himself while the respondent Republic had the legal services of Ms. Mwajabu Tengeneza, learned Principal State Attorney, accompanied by Mses. Ellen Masululi and Veronica Mtafya, both learned Senior State Attorneys. The appellant adopted the grounds of appeal and opted to let the respondent react to his complaints first, but reserved his right to make his rejoinder, if the need to do so, would arise. We wish to state from the outset that, we shall determine the grounds of appeal immediately as they are argued. We further wish to state that, the appellant, generally, had nothing substantive to re-join after the respondent Republic responded to the grounds of appeal, apart from beseeching the Court to find his grounds meritorious, allow the appeal and release him from prison. It was Ms. Masululi who addressed the Court on behalf of her colleagues and informed the Court that, the respondent was opposing the appeal. 5

Responding to the first ground of appeal, where the complaint is the dismissal of the appellant's appeal without evaluating it, Ms. Masululi was brief and maintained that, the complaint is unfounded. She referred us to pages 44 to 55 where the raised grounds of appeal were analysed and concluded at page 55 of the record of appeal by dismissing the appeal. She urged the Court to uphold the finding of the High Court on this aspect. We do not want to be detained in this ground. It is true as correctly submitted by Ms. Masululi that, the first appellate court analysed the raised grounds in seriatim starting from page 44 to 55 of the record of appeal, where the High Court gave its finding by dismissing the appeal for being devoid of merit. The Court has, on several decisions observed that, dismissing an appeal does not mean that, the petition of appeal was not considered or analysed. Rather, the same was found to lack merit. See: Kelvin s/o Kelvin Nyondo v. Republic, (Criminal Appeal No. 528 of 2021) [2024] TZCA 1255 (11th December, 2024 TANZLII). In our view, the observation is still valid and thus, we find no merit in this ground and we dismiss it. Ms. Masululi partly conceded to the complaint in the second ground to the effect that, the trial court only analysed part of the appellant's defence on the alleged family dispute and left out the defence of alibi

which was also raised by the appellant. She however argued that, the record shows that, the first appellate court properly analysed and considered the said defence and concluded that, the same did not raise any doubt on the prosecution case. To verify her submission, he referred us to pages 50 and 53 of the record of appeal and concluded that, the ground is baseless. Having perused the record of appeal, we agree with Ms. Masululi that, the analysis was only done on the defence of the alleged family dispute while leaving out the one on alibi. Legally, the trial court is obligated to adequately evaluate the evidence from both parties, weigh it so as to arrive at a balanced position which is backed up by facts and law. In the case at hand, this obligation was partly discharged by the trial court. However, as correctly submitted by Ms. Masululi that, on appeal, the High Court stepped into the shoes of the trial court and critically evaluated the appellant's defence of alibi considering that, it has the mandatory duty to re-evaluate the entire evidence on record and reach at its own findings of facts [See: Firmon Mlowe v. Republic (Criminal Appeal No. 504 of 2022 [2022] TZCA 694 (9 November 2022 TANZLII). When doing so, the High Court, observed and rightly so in our view that, the appellant was away to his farm to harvest the said ginger from

23/9/2022 until 27/9/2021. Considering that the offence was committed on 24/10/2021, the appellant was at home by the time when the incidence occurred. Basing on this analysis at page 50 of the same record, the High court concluded at page 53 that, the defence did not cast any doubt on the prosecution case which findings we agree with. We therefore find the second ground unmerited and accordingly dismiss it. Responding to the third complaint in ground number three, that both lower courts erred to ground the appellant's conviction basing on hearsay evidence of PW1 and PW3, Ms. Masululi argued the same to be incorrect. It was her contention that, the reliance was placed on the evidence of the victim, being the best and reliable one as per Selemani Makumba v. The Republic, [2006] T.L.R. 329 and further that, the evidence of PW1 and PW3 was only corroborative to the victim's evidence. Illustrating, Ms. Masululi submitted that, the prosecution proved all the three ingredients of the offence of statutory rape which the appellant was charged with. She listed them to be one, the offender, whereby initially, the victim mentioned the appellant to PW3 as her rapist. She further told PW3 that the rapist was her uncle with whom they were living in the same house, which shows that she knew him very well. Two, penetration, which again was proved by the victim who narrated how the 8

appellant undressed her forcefully and raped her. Ms. Masululi added that, her evidence on penetration was corroborated by PW1 who saw bruises and dirty whitish discharge from the victim's private parts and PW4 who upon examining the victim, noted that her hymen was perforated (pages 7 and 14 of the record of appeal respectively). Three, the age of the victim to which Ms. Masululi submitted that, it was proved by PW1 who told the trial court that, the victim was born on 19/3/2010 and thus, was 11 years old when the she was raped. On those bases therefore, the learned State Attorney therefore concluded that, the complaint has no merit as the record is clear that, evidence of PW1 and PW3 were only corroborative to the victim's evidence and did not form the basis of conviction. Our analysis on ground number three reveals that, the complaint is two folds: that the evidence of PW1 and PW3 was hearsay and that the conviction of the appellant was based on the evidence of PW1 and PW3. Addressing the first limb, there is no dispute that, both PW1 and PW3 were informed of the incident by the victim. Considering that the information came direct from the victim herself, the same is considered as direct evidence under section 67 (1) of the Evidence Act. As such, the

complaint that the evidence of PW1 and PW3 was hearsay, holds no water. Likewise, the second limb of the complaint is also not correct and we shall explain. The offence the appellant was charged with was statutory rape which essentially, requires a proof of three ingredients: one; that the victim was under age, two; that there was penetration of the accused penis into the victim's private parts, and three; that the offender is none other than the accused. [See: Yusufu Selemeni Akandu v. Republic, Criminal Appeal No. 623 of 2021 [2024] TZCA 485 (13 June 2024 TANZLII). As rightly submitted by the learned Senior State Attorney, which we need not repeat, the ingredients of a statutory rape, to wit; penetration and who is the offender, were proved by the victim and corroborated by PW4, PW1 and PW3 while that of age of the victim was proved by the victim's mother. [See Rutoyo Richard v. Republic, (Criminal Appeal No. 114 of 2017) [2020] TZCA 298 (16 June 2020 TANZLII). It is a settled principle in our jurisprudence that, in sexual offences including rape, the best and true evidence comes from the victim. The trial court can convict basing on this evidence even without corroboration if the said evidence is found to be credible. [Hango Omary Hango v. Republic, [2025] TZCA 12 (3 February, 2025, Mohamed Said

v. Republic (Criminal Appeal No. 145 of 2017 [2019] TZCA 252 (22 August 2019) all from TANZLII and Selemani Makumba v. The Republic (supra)]. In the case at hand, PW2's evidence was found credible and reliable. Besides, it was further corroborated by other prosecution witnesses including PW1 and PW3. The above analysis therefore, depicts that, the trial court mainly relied on the evidence of the victim and not as stated by the appellant. Ground number three therefore collapses. Proceeding with the fourth ground, Ms. Masululi submitted to be baseless the appellant's complaint that, the lower courts erred to convict him relying on an incredible and inconsistent evidence of PW2 for the reason that, the victim mentioned the name of Peter to PW3 to be her rapist but while testifying in court, she mentioned the appellant instead. The learned Senior State Attorney strenuously disputed this complaint contending that, there was no any inconsistency and if any, the same was minor and did not go to the root of the case. It was her contention that, in both scenario, the name of Peter was mentioned which is among the appellant's names. Having scanned the record before us, we gathered that, no material contradictions exist as regards the identity or names of the rapist. It is l i

true as garnered from the record that, the victim mentioned Peter to PW3 as the rapist, but when testifying in court, she mentioned the appellant by the names of Alex Peter Mgoba as a rapist. However, we do not consider it as a material discrepancy to dent the prosecution case because: one, Peter is among the appellant's names; two, the victim further described to PW3 the relationship between them that, the rapist was her uncle, the fact which the appellant did not contradict; and three, mentioning of one name did not remove the fact that, the victim knew her rapist very well. We thus agree with Mr. Masululi that, there is no contradiction in the names mentioned by the victim, but further that, even if the contradiction exist, the same is too minor to make the prosecution case flop. [See: Said Ally Ismail v. Republic, (Criminal Appeal No 212 of 2016) [2018] TZCA 445 (8 May 2018), Abiola Mohamed @Simba v. Republic, (Criminal Appeal No. 291 of 2017) [2021] TZCA 632 (2 November 2021) and Goodluck Lazaro Babuu v. The Republic (Criminal Appeal No. 199 of 2021) [2021] TZCA 463 (13 June 2024) All from TANZLII]. In Abiola Mohamed @Simba v. Republic (supra), the Court observed the following when faced with a similar issue: 12

"Minor contradictions or inconsistencies on trivia/ matters which do not affect the case of the prosecution should not be made grounds on which the evidence can be rejected in its entirety For the same reason, the fourth ground of appeal fails as well and we reject it. We now turn to ground number five of appeal. The gist of the appellant's complaint is the prosecution's failure to summon material witnesses he mentioned to be the street chairman and the police officer who investigated the case, so as to prove the commission of the offence. The appellant cited the case of Boniface Kundakira @ Tarimo v. Republic, Boniface Kuandakira Tarimo v. Republic (Criminal Appeal 351 of 2008) [2011] TZCA 194 (04 October 2011), to back up his complaint. Basing on the provisions of section 152 of the Evidence Act, Ms. Masululi argued that, no particular number of witnesses is needed to prove a certain fact. She maintained that, the prosecution witnesses PW1, PW2, PW3 and PW4, who were summoned to prove the commission of the offence in this case, were credible and enough to prove the case to 13

the requisite standard, to which they did. She implored the Court therefore, to find the complaint unfounded. We agree in all fours with the argument of the learned Senior State Attorney. It is a settled principle of law that, no particular number of witnesses is needed to prove a certain fact. The principle is stipulated in the provision of section 152 of the Evidence Act, as rightly cited by Ms. Masululi. This is because, in measuring the weight of evidence, it is not the number of witnesses that counts most, but the quality of the evidence adduced [See: Hemedi Saidi v. Mohamed Mbilu [1984] TLR 113]. Though the stated witnesses were not called to prove the commission of the offence, but as correctly submitted by Ms. Masululi that, the summoned witnesses, particularly PW2 who was the victim managed to prove the commission of the offence by the appellant, as such, the chairman of the street and the investigation officer, even if were called, they would not have added anything substantial to the case considering the settled law in Selemani Makumba v. Republic that, true evidence comes from the victim. In this regard, we find the complaint devoid of merit and dismiss it. 14

All in all, we find no reason to fault the decision of the first appellate court to uphold the appellant's conviction and sentence. On that account, we dismiss this appeal in its entirety. DATED at MBEYA this 26th 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 27th day of February, 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. t | A W. A. HAMZA | U DEPUTY REGISTRAR I 1 .1 COURT OF APPEAL

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