Mageta Masalu @ Mageta vs Republic (Criminal Appeal No. 112 of 2024) [2026] TZCA 162 (27 February 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: NDIKA, J.A.. FIKIRINI, J.A., And ISMAIL. J.A.^ CRIMINAL APPEAL NO. 112 OF 2024 MAGETA MASALU @ M AG ETA .........................................................APPELLANT VERSUS REPUBLIC......................................................................................RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma) (Mahimbali. J.l dated the 18th day of October 2021 in Criminal Appeal No. 62 of 2020 JUDGMENT OF THE COURT 16th & 27th February 2026 NDIKA, J.A.: The appellant, Mageta Masalu, commonly known as Mageta, was found guilty by the District Court of Serengeti of the rape of a sixteen- year-old girl on 22n d April 2020, at Nyakitono village in Serengeti District, Mara Region. He was sentenced to thirty years in prison. His appeal to the High Court of Tanzania at Musoma against his conviction and sentence was unsuccessful. This appeal constitutes his further endeavour to regain liberty. The prosecution's version was that the prosecutrix, a student in Standard VI who testified as PW1, responded to a call from her peer named Zawadi and went to the residence of Kulwa Mosses, Zawadi's

father, in her neighbourhood at approximately 07:00 hours on 22n d April 2020. In that house, she found the appellant and the said Kulwa. A little later, the appellant dragged her into a bedroom and immediately proceeded to strip her naked and place a condom on his penis. After that, he had sex with her while Kulwa held her down on the bed. Her cries for aid reached her two younger sisters, one of whom was thirteen years old (PW3). The sisters arrived at the scene quickly, and the appellant then let her go. Notably, she stated that it was the first occasion she encountered sexual intercourse. PW3's account dovetailed with her elder sister's. Upon her arrival at the scene, she discovered that Kulwa's residence was locked. The door finally swung open a short time later. She heard sobs as her sister emerged from the room, claiming that the appellant had sexually assaulted her. Then, the appellant emerged from the home and silently waited at the entrance. Upon returning home around two hours later, the complainant's father (PW2) learned from PW1 about the injustice inflicted upon her by the appellant. He initially informed the village officials and subsequently the police about the incident.

PW4 Nisbert Tryphone, a Clinical Officer at Natta Health Centre in Serengeti District, examined PW1 at approximately 15:00 hours on the same day. He documented his findings in the medical examination report (PF3 - exhibit PI), indicating that PW1 lacked a hymen and had experienced vaginal penetration. He explicitly stated that there was penile penetration of the vaginal orifice, since he discovered fluids and spermatozoa within it. The appellant asserted under oath that he did not rape PW1. He stated that he was at home throughout the material time and expressed astonishment when he was arrested later that day for a crime he did not perpetrate. It is noteworthy that he did not call witnesses to support his alibi and did not cross-examine the complainant on any aspect of the case. The trial court was persuaded by the prosecution's account and subsequently convicted the appellant of the charge, imposing a thirty-year prison sentence. Upon appeal, the High Court concluded that the prosecution's case established both penetration and the perpetrator's identity, and that both PW1 and PW2 substantiated her age. The appellant's defence was considered baseless. Consequently, the appeal was dismissed, and the trial court's conviction and sentence were upheld. 3

The appellant, acting in person, aimed to pursue his appeal based on twenty-two grounds expressed in three memoranda of appeal. Although he did not elaborate on any of the grounds, he implored us to allow the appeal. On the opposing side, Ms. Sabina Choghoghwe, learned Senior State Attorney, firmly advocated for the dismissal of the appeal. She appeared alongside her colleagues, Ms. Agma Haule, Ms. Natujwa Bakari, and Mr. Jonas Kivuyo, learned State Attorneys. Upon reviewing the three memoranda, we identify six grievances: first, the appellant's right to be heard was infringed. Secondly, the testimonies of PW1, PW2, PW3, PW4, and PW5 were erroneously accepted as evidence. Thirdly, the medical expert lacked the requisite qualifications, and the medical examination report (exhibit PI) was improperly admitted as evidence. Fourthly, that specific material witnesses (local leaders, Zawadi and Kulwa) were not presented as prosecution witnesses. Fifthly, the defence evidence was disregarded. Finally, the charge was ultimately not substantiated beyond a reasonable doubt. We need not traverse a considerable distance about the initial two grievances, which the appellant had similarly presented to the High Court. The court determined that they lacked merit. As correctly asserted by Ms. Haule, representing the respondent, the two grievances contradict the

record of appeal. The record clearly indicates that the appellant was afforded the chance to cross-examine each prosecution witness, challenge the admission of exhibit PI, and present his defence testimony. Moreover, we have noted no irregularities in the admission of testimony from each of the five prosecution witnesses or in the acceptance of the sole documentary exhibit presented by PW4, the medical witness. The two grounds presented are entirely misguided. We dismiss them. In the third ground of appeal, the appellant criticised the medical witness (PW4) based on his lack of qualifications. We saw his plea as a request for us to disregard PW4's testimony and discard the medical examination report he submitted as exhibit PI. We acknowledge that this argument was previously presented to the High Court, but it was rejected after careful deliberation. We promptly concur with Ms. Haule's assertion that PW4, as a certified clinical officer, possessed the qualifications and competence to assess the complainant and opine accordingly. This is in consonance with the determination made by the Court on the status of a clinical officer in Charles Bode v. Republic [2019] TZCA 578, which Ms. Haule referenced. 5

The fourth grievance compels us to examine the impact of the prosecution's failure to include the Village Chairman, the Village Executive Officer, Zawadi, and Kulwa as witnesses for the prosecution. The appellant, however, failed to elucidate the significance of these individuals as material witnesses. In contrast, Ms. Haule argued that the prosecution's case was not lacking in any respect, hence deeming none of these witnesses are material witnesses. Initially, we acknowledge the established legal concept that the prosecution is obligated to summon all witnesses essential to ascertain the truth, regardless of potential inconsistencies in their testimony. When the prosecution fails to call an essential witness to address a pivotal matter, the court may draw adverse inferences against the prosecution: see, for example, Yohanis Msigwa v. Republic [1990] T.L.R. 148 and Aziz Abdallah v. Republic [1991] T.L.R. 71. The Court also stated in the latter case that the credibility of the prosecution's case is not inherently undermined when evidence indicates that multiple witnesses could have spoken about the incident. In the instant appeal, it is not clear what value the evidence of the two local leaders and Zawadi would have added to the evidence of the complainant and her younger sister (PW1 and PW3), which the courts below found it believable and reliable. We note that the leaders were 6

nowhere near the crime scene. Their help was only enlisted after the incident. Indeed, Zawadi was the person who called the complainant to the scene, but she did not witness the perpetration of the crime. In any event, she would have been no more than a marginal witness. The position of Kulwa is entirely distinct. The complainant stated that she was restrained by Kulwa during the sexual abuse to facilitate the crime. Thus, Kulwa was an accomplice who should have been prosecuted as a principal offender pursuant to section 22 (1) (c) of the Penal Code, Cap. 16, R.E. 2023, for facilitating or assisting in the conduct of rape. In our opinion, the decision not to summon him as a prosecution witness should not have raised eyebrows. The appellant argued, in the fifth ground, that his defence was ignored. On the other side, Ms. Haule refuted the allegation, asserting that the defence was properly evaluated but dismissed by the trial court. She highlighted page 91 of the record of appeal, which reveals that the High Court examined a comparable argument but rejected it, having determined that the defence failed to undermine the prosecution's case. Certainly, the appellant, in his defence, denied raping PW1 and presented an a//#/asserting that he remained at home during the relevant period. His arrest was unexpected for him. Pages 46 and 47 of the record 7

of appeal demonstrate that the trial court acknowledged the defence but deemed it insufficient to undermine the prosecution's case, a perspective shared by the High Court, as indicated on page 91 of the record of appeal. In addition to his overall denial of liability being a feeble defence, his alibi, without support from any witness, disintegrated once the lower courts accepted the testimonies of PW1 and PW3, which positioned him at the crime scene throughout the incident. The fifth ground is equally unsubstantiated. We conclude our discussion by evaluating and ascertaining whether the offence was proven beyond a reasonable doubt. Ms. Haule asserted that the essence of the offence, as delineated in sections 130 (1) and (2) (e) and 131 (1) of the Penal Code, Cap. 16, was adequately substantiated by the evidence of PW1 and PW3 and corroborated by the clinical officer's testimony and the medical examination report (exhibit PI). She clarified that PW1 not only demonstrated her age as sixteen years at the material time, having been born in 2004, but also substantiated that the appellant was the perpetrator of the offence, forcibly inserting his penis into her vagina while Kulwa restrained her on the bed. She stated that, since the event transpired in the morning, identifying the perpetrator was not challenging. 8

Ms. Haule stressed that PW3 corroborated her sister's account, stating that she observed her inside the locked residence of Kulwa and subsequently witnessed her exiting the house, weeping and claiming to have been raped by the appellant, who soon thereafter emerged from the dwelling. Concerning the medical evidence, she posited that it corroborated PW l's account, as the findings were compatible with vaginal penetration. When the Court questioned the evident inconsistency between PWl's testimony, which asserted that the appellant wore a condom before the assault, and the medical evidence revealing the presence of fluids and spermatozoa in PW l's vagina, Ms. Haule responded that this discrepancy did not weaken the prosecution's case. Both pieces of evidence corroborate the claim that the prosecutrix was penetrated, she submitted. At this juncture, it is indisputable that PW l's account regarding the condom and the clinical officer's discovery of spermatozoa are contradictory. In contrast to Ms. Haule's assertion, this inconsistency calls into doubt the coherence and believability of the prosecution's case. In multiple instances, including Dickson Elia Nsamba Shapwata & Another v. Republic [2008] TZCA 17, the Court acknowledged that inconsistencies and contradictions frequently occur in judicial 9

proceedings. It held that when such discrepancies arise, the court must determine whether they are trivial or fundamentally undermine the case. The appeal record clearly indicates that the trial court did not address the issue, however it unexpectedly emerged during the appeal and was subsequently addressed by the High Court. The appellant was said to have enquired whether a male individual could commit rape while wearing a condom (page 86 of the record of appeal). The court rejected the allegation, as indicated on page 90 of the record of appeal, stating that, "a penis insulated by a condom achieves the same degree of penetration as an uninsulated penis." This discovery scarcely addressed the existing contradiction before us. We wish to observe that, according to established precedent, authentic evidence of a sexual offence must originate from the complainant (see, for instance, Selemani Makumba v. Republic [2006] T.L.R. 379); thus, the oral testimony of the complainant, if credible, is primary. Conversely, medical evidence is typically seen as opinion-based and corroborative, rather than conclusive on its own - refer to Agnes Doris Liundi v. Republic [1980] T.L.R. 46. It is the court that will finally have to determine the veracity and reliability of such evidence. 10

We acknowledge that no forensic evidence was presented to associate the appellant with the spermatozoa discovered in the complainant's vagina. If that had been presented, it would have resolved the issue, even if the complainant's account and the medical evidence would have remained contradictory on their face. Notwithstanding the above, we believe that it is essential, given the circumstances of this case, to acknowledge that both lower courts regarded the complainant as a credible witness. She was a teenage girl who said she was a debutant at sex. The sexual encounter transpired so suddenly. Kulwa's restraint of her on the bed to facilitate the appellant's penetration indicates that the encounter was physical, coercive, and intense. Could the complainant, an admitted novice at sex, have perceived and acknowledged that the appellant had ejaculated within her vagina if the condom had ruptured? We do not think so. Moreover, it appears that the sexual encounter concluded shortly after PW3 and her younger sibling arrived at the scene to assist their elder sister. It would be imprudent to assume that she verified the state of the condom on the appellant before exiting in a state of uncontrollable sobbing. Consequently, we conclude that the perceived discrepancy in question did not undermine the integrity and veracity of the prosecution's case. 11

At this point, we uphold the lower courts' determination that PW l's testimony regarding her age and the sexual assault inflicted by the appellant was compelling. Her narrative seemed credible and coherent. Furthermore, PW3's testimony corroborated the complainant's version. PW1 exited the crime scene in tears. She immediately stated that the appellant had sexually assaulted her. The medical evidence, as previously articulated, corroborates PW l's account of having been sexually assaulted. The sixth ground of appeal is inevitably unsuccessful. We deem the appeal to be without merit and thus dismiss it in its entirety. DATED at MUSOMA this 27th day of February, 2026. The Judgment delivered this 27th day of February, 2026 in the presence of the appellant in person, Mr. John Samwel Kivuyo, learned State Attorney for the respondent/Republic via video link from Musoma Prison and NPS- Office-Musoma respectively and Mr. Shabani Kanyai, Court Clerk; is hereby certified as a true cop G. A. M. NDIKA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL DEPUTY REGISTRAR COURT OF APPEAL