Peter Mwashilindi vs Republic (Criminal Appeal No. 121 of 2022; Criminal Appeal No. 420 of 2023) [2026] TZCA 146 (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. 420 OF 2023 PETER MWASHILINDI...................................................................APPELLANT VERSUS THE REPUBLIC......................................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mbeya) (Karavemaha, 3 .) dated the 05th day of April, 2023 in Criminal Appeal No. 121 of 2022 JUDGMENT OF THE COURT 20th& 27th February, 2026 NANGELA, J.A. The appellant, PETER s/o MWASHILINDI, was arraigned before the District Court of Chunya, at Chunya in Mbeya Region (the trial court), facing a charge of rape contrary to sections 130 (1), (2) (e) and 131 (1) of the Penal Code, [Cap. 16 R.E. 2019]. The victim was a 16 years girl. Before the trial court, she testified as PW1. The particulars of the offence which the appellant was charged with were that, on 30/05/2021, at Mbugani Village, within Chunya District and Mbeya Region, the appellant had unlawful carnal knowledge of PW1. i

The brief facts, as gathered from the record of appeal, are that, on 30/05/2021, at about 20:00 hours, PW1 was returning home from the market, where she had gone to purchase a voucher. On the way, she encountered the appellant, who professed his love for her and attempted to initiate a romantic relationship. PW1 rejected his advances. Upon the rejection, the appellant forcefully dragged PW1 into a bush, forced her to the ground, and raped her. Although, PW1 shouted for help, she had none to help. After the incident, PW1 went to her sister-in-law and reported that she had been raped by the appellant. Her sister-in-law and her husband, Asajile Lotti (PW3), took PW1 home. There, PW1 narrated her ordeal to her mother, Jestina Jonas (PW2). It was already, 21:00 hours. PW2 and PW3 attempted to search for the appellant at his residence, but the door was locked from the outside. As PW3 continued searching for the appellant, PW2 reported the incident to the Village Executive Officer (VEO). The VEO advised PW2 and PW1 to report the matter to the Police and to take PW1 to hospital for examination. Meanwhile, PW3 located the appellant at a friend's residence, apprehended him, and took him to his house before summoning the VEO. The VEO directed that the appellant be detained at 2

the village office until the following day, when he would be taken to the Police. When PW2 confronted the appellant and asked why he had raped PW1, he responded that they had agreed to marry in the future. The next morning, the appellant was taken to Chunya Police Station. PW1 was issued with a PF3 and taken to hospital for medical examination. She was examined by Ms. Flora Loti (PW4), a Medical Officer at Chunya District Hospital. According to PW4's findings, PW1 had bruises around the labia minora and majora, scanty blood discharge from the vagina, and blood stained clothing. PW4 concluded that PWl's vagina had been penetrated. She completed the PF3, which was later admitted in evidence as exhibit PI. After considering the prosecution case, the trial court found that the appellant had a case to answer. In his defence, the appellant testified on oath as DW1 on 11/08/2021. He called no other witnesses. He denied committing the offence and, asserted that, he was 16 years old. He added that, upon his arrest, the Police forced him to state that he was 20 years old. Upon being cross-examined as to his age, he maintained that he was 16 years old having been born in 2005. 3

At the conclusion of the appellant's trial, the trial court found the appellant guilty, convicted and sentenced him to 30 years prison term. Aggrieved by such conviction and sentence, he appealed to the High Court. However, his appeal was unsuccessful. Undaunted, he has appealed to the Court. This, therefore, is his second appeal. In his appeal, the appellant presented two memoranda of appeal. His first memorandum of appeal, filed on 10/04/2023, had three grounds of appeal, therein. However, on 10/02/2026, he filed a supplementary memorandum of appeal, containing one ground, subdivided into six parts, namely (a) to (f). For convenience purposes, his grounds of appeal in both memoranda of appeal may be summarized as constituting the following complaints or grievances: One, that the first appellate court failed to evaluate and carefully consider his grounds of appeal, ending up dismissing his appeal. Two, that, the first appellate court dismissed the appellant's appeal without taking into account that his defence was not considered. Three, that the first appellate court dismissed the appellants appeal without taking into account that PW1 never raised an alarm while she was being raped. Four, the VEO was not called to testify. Five, the Sketch Map of the scene of 4

crime was not tendered in court as exhibit, and, finally, that, section 127 (6) (a) to (f) of the Evidence Act was not considered. When the appeal was called on for hearing, the appellant appeared in person. Ms. Mwajabu Tengeneza, Principal State Attorney, assisted by Ms. Ellen Masululi and Ms. Veronica Mtafya, learned Senior State Attorneys, appeared for the respondent Republic. Upon being invited, the appellant preferred the respondent Republic to first respond his grounds of appeal and, if need be, he would rejoin afterwards. That being the case, Ms. Tengeneza yielded on the floor to Ms. Masululi, the learned Senior State Attorney, who addressed the Court on behalf of the respondent Republic. Ms. Masululi informed the Court that, the respondent Republic was opposing the appeal. Addressing the first ground of appeal, she argued that, although the appellant claimed that, the first appellate court failed to evaluate the evidence and consider his grounds, pages 59 to 70 of the record of appeal demonstrate otherwise. She therefore submitted that, since the first appellate court considered all the appellant's grounds and evaluated the evidence before it, the first ground of appeal is devoid of merit. 5

In our view, upon examining pages 59 to 70 of the record, we agree with Ms. Masululi that the first appellate court addressed the appellant's complaints. Pages 59 to 62 reveal that, the first appellate court dealt with the first, second, and third grounds, while the remaining grounds were addressed on pages 62 to 69. It is, therefore, clear that, the first appellate court, not only considered the appellant's grounds of appeals, but found them to be devoid of merit, hence dismissing them. Whether the first appellate court rightly did so or not that is another issue, especially as we consider the second ground of appeal. What is worth noting, however, is that, in Kelvin s/o Kelvin Nyondo v. Republic (Criminal Appeal No. 528 of 2021) [2024] TZCA 1255 (11 December 2024, TANZLII), the Court observed with clarity that, when a first appellate court dismisses an appeal, it does not necessarily mean that the appellant's grounds of appeal were not analysed. We reiterate that position in respect of the first ground of appeal and accordingly dismiss it for want of merit. Turning now to the second ground of appeal, the appellant contends that, the first appellate court ignored his defence. Ms. Masululi maintained, however, that, the appellant's defence was adequately

considered by both the trial court and the first appellate court, and, she invited us to examine pages 30 and 64 of the record of appeal. Essentially, a trial court has a mandatory duty to evaluate the entire evidence on record, encompassing both the prosecution's case and the defence case, before arriving at a verdict. See Fikiri Katunge v. Republic [2020] T7CA 1941 (14 May 2020 -TANZLII). In so doing, a trial court must not simply review or restate the evidence. Rather, it must appraise it critically in light of the facts in issue, assessing not only its relevancy and admissibility, but also, the weight to be attached to each piece of evidence. Stated otherwise, it must put the evidence of both sides on the imaginary scale of justice and determine which evidence hold more probative value or is worthy of belief. But while doing so, the court must as well be mindful that the duty to prove every allegation rest on the prosecution side. The defence does not have a duty to prove its innocence but only raise reasonable doubts about the prosecution's case. If, however, a trial court makes findings based on partial or no holistic consideration of the evidence, or fails to properly appraise the evidence, the first appellate court is duty bound and, is, indeed, in a good position as the first trial court to re-evaluate such evidence. But what needs to be emphasized here is that, failing to

properly consider the defence case, or merely focusing on the prosecution's evidence, constitutes a serious legal error. In Simon Aron v. Republic [2016] TZCA 939 (18 April 2016- TANZLII), the Court, relying on its earlier decision in Yustin Adam Mkamla v. R. Criminal Appeal No. 206 of 2011 (unreported), noted that: "... The failure on the part o f courts below to consider the evidence offered by the defence featured in an earlier decision o f the Court in Moses Mayanja @ MSOKE v. R., Criminal Appeal No. 56 o f 2009 (unreported). After citing several earlier decisions o f the Court, concluded that the failure by courts below to consider objectively the evidence o fprosecution and that o f defence entities this Court to interfere with resulting concurrent finding o f facts. We emphasized that the law is settled on the proposition that failure to consider the defence case is fatal and usually vitiates the conviction" The above notable position of the law was reiterated in Daniel Severine & Others v. Republic [2019] TZCA 498 (12 December 2019- TANZLII) where it was held that: "It is trite law that ■ non-consideration o f the defence evidence is a fatal irregularity to the trial

and the whole proceedings and it vitiates the conviction In the appeal before us, while it is correct that pages 30 to 31 show that the trial court considered the appellant's defence and, that, the first appellate court addressed that issue at page 64 of the same record of appeal, we are of the view that, both courts below, particularly the first appellate court, failed to give adequate attention to the appellant's concerns regarding his age. We shall validate our concern. As it appears at page 18 of the record of appeal, the appellant asserted before the trial court that, he was 16 years old at the time of the alleged offence. Moreover, it was his assertion, that, having been arrested, he was compelled to state that, he was 20 years old. Concerning those assertions, at pages 30 to 31 of the record of appeal, the trial magistrate stated as follows: "In his defence...he insisted... that he is just a minor... "The trial court said nothing more on that point. Unfortunately, although the appellant raised the same issue of non consideration of his defence in his petition of appeal, (see page 39 of the record of appeal), and, the first appellate court addressed it at pages 64 and 68 to 70 of the record of appeal, the latter court did not give it adequate attention as it ought to have done. 9

We hold that view because, at pages 69 to 70 of the record of appeal, the first appellate court made a concluding remark that: "A cursory glance at thejudgment from which this appeal arises, convinces me that the appellant's defence was considered. Only that the trial court was convinced that its potency was not enough to shake or discredit the prosecution case" Throughout its assessment of the defence case, however, nowhere did the first appellate court address the issue of the appellant's age. In our view, the appellant's assertion about his age ought to have been taken seriously by both courts below because, had it been established that, he was indeed of the age he claimed, serious legal implications would have followed. Firstly, it would have determined, not only which court was vested with jurisdiction to try the matter, but also the procedure applicable to such proceedings, including the procedure for determination of his age. Sections 99 to 100 and section 114 to 115 of the Law of the Child Act, [Cap. 13 R.E. 2023] are clear on this point. 10

Secondly, the sentence to be imposed would have been different. Section 112 of the same Act prescribes the procedure upon conviction, while sections 116 to 118 deal with sentencing. In our view, all such serious legal matters as stated here above, required a keen consideration. Since the two courts below failed to address these issues, despite the appellant having raised the concern about his age before them, the second ground of appeal has merit. Both courts ought to have gone further in their analysis than where they stopped. Their failure to do so seriously prejudiced the appellant. We, thus, uphold the second ground of appeal. We note that the second ground of appeal is dispositive of this appeal. The only issue that remains is how the appeal ought to be disposed of, given that both lower courts failed in their duty to consider the appellant's defence. Put differently, can this Court, in the circumstances before us, rectify such an omission on a second appeal? This question is not novel. It was previously considered by the Court in Mzee Ally Mwinyimkuu @ Babu Seya v. Republic [2020] TZCA 1776 (17 September 2020) (TANZLII). In that case, the Court was confronted with a situation akin to the present one, in which the two lower courts had failed to consider the appellant's defence, and answered the li

question in the affirmative. In arriving at that conclusion, it revisited earlier authorities, including Dinkerrai Ramkrishan Pandya v. Rex [1957] 1 E.A. 336; Iddi Kondo v. Republic [2004] TLR 362; Cosmas Kumburu v. Republic [2019] T7CA 90 (8 May 2019-TANZLII); and Julius Josephat v. Republic [2020] TZCA 1729 (18 August 2020- TANZLII). To these may be added Hassan Mzee Mfaume v. R [1981] TLR 167. Relying on the decision of the former Court of Appeal for East Africa in Dinkerrai Ramkrishan Pandya (supra), where the appellant's appeal had been dismissed without consideration of his defence, it was observed that: "... the first appellate court erred in law in that it had not treated the evidence as a whole to that fresh and exhaustive scrutiny which the appellant was entitled to expect, and, as a result o f its error, affirmed a conviction resting on evidence which , had it been duly reviewed, must have been seen to be so defective as to render the conviction manifestly unsafe". Furthermore, relying on Iddi Kondo v. Republic (supra), the Court observed, as a general rule, that: 12

" where the High Court wrongly dismisses an appeal summarily the Court o f Appeal sends it back to the High Court to be admitted for hearing; but in some deserving cases the Court of Appeal may step into the shoes o f the lower court and determine the appeal itself [Emphasis added]. In Hassan Mzee Mfaume v. R [1981] TLR 167, the Court's decision was also to the effect that: "Where the first appellate court fails to re evaluate the evidence and to consider the material issues involved \ on a subsequent appeal the Court may re-evaluate the evidence in order to avoid delays or may remit the case back to the first appellate court" [Emphasis added]. Having considered the above-cited authorities in light of the circumstances of the present appeal, where the appellant's defence concerning his age was not adequately addressed by the first appellate court, we are satisfied that this is an appropriate case in which this Court may step into the shoes of that court and undertake the analysis that ought to have been conducted. 13

Accordingly, we shall examine the appellant's defence and determine whether it bore any legal consequences upon the proceedings and, if so, the appropriate course to be taken. As earlier noted, the appellant's defence included the assertion that he was a minor, aged 16 years, at the time he was alleged to have committed the offence of rape. In her submissions, Ms. Masululi, relying on section 121 of the Evidence Act [Cap. 6 R.E. 2023], contended that the issue of age was a matter especially within the appellant's knowledge and, that, he therefore bore the evidential burden of establishing it. In our view, although the evidential burden in that respect rested upon the appellant, the mere fact that he raised the issue while testifying did not relieve the prosecution of its legal burden. It is a fundamental principle of criminal law that the prosecution bears, at all times, the burden of proving every material element of the offence beyond reasonable doubt. Moreover, the onus of establishing each material fact rests upon the prosecution. The question, therefore, is whether the prosecution discharged that burden in relation to the appellant's age. In our considered view, it did not. As we shall demonstrate, that omission had significant procedural and substantive consequences. 14

First, once the appellant raised the issue of his age, it became a material fact in the proceedings. Given its potential legal consequences, the prosecution bore the obligation to establish, beyond reasonable doubt, that the appellant was not of the age he claimed. Second, upon the issue being raised, the trial court was under a duty to halt the proceedings and determine the appellant's age in accordance with section 100(2) of the Law of the Child Act. That provision stipulates that: "Where in the course o f any proceedings in a court it appears to the court that the person charged or to whom the proceedings relate is a child, the court shall stay the proceedings and commit the child to the juvenile court" [Emphasis added]. Third, the failure to comply with that statutory requirement constituted a serious breach of the law, as it undermined the principle of the best interests of the child enshrined in section 4(2) of the Act. Fourth, it is noteworthy that the issue of the appellant's age was raised in his sworn testimony while testifying as DW1. Although the record shows that the prosecution cross-examined him on that issue, he maintained that he was 16 years of age, having been born in 2005. His testimony on that point, therefore, remained unshaken. That 15

circumstance carried significant legal consequences, as will become apparent. Fifth, since in criminal proceedings the burden of proof rests upon the prosecution, the evidentiary weight of unshaken defence testimony, particularly on a material issue, cannot be understated. In this regard, two matters arise. First, the appellant's age constituted a material jurisdictional fact. The prosecution bore the duty to disprove it once raised. Having failed to do so, it did not discharge its burden of proof in relation to whether the charge was instituted before a court of competent jurisdiction. Second, as a general rule, evidence that remains unshaken under cross-examination is ordinarily to be accepted unless inherently improbable. In the present appeal, the appellant's assertion as to his age, having been left uncontroverted, created a reasonable doubt which, as a matter of settled principle, must be resolved in his favour. Having upheld the second ground of appeal, and since that ground is sufficient to dispose of the appeal, we find no reason to address the remaining grounds, namely grounds four, five, and six. 16

In the upshot, having found merit in the appeal and bearing in mind that the appellant has been incarcerated since his arraignment, we order that the appellant, PETER MWASHILINDI, be released forthwith unless he is otherwise lawfully held. 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 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. W. A. HAMZA DEPUTY REGISTRAR COURT OF APPEAL 17