Idrisa Athuman @ Naleja vs Republic (Criminal Appeal No. 666 of 2023) [2026] TZCA 128 (26 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. 666 OF 2023 IDRISA ATHUMAN @ NALEJA................................................... APPELLANT VERSUS THE REPUBLIC ..................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma) (Mahimbali. J.) dated the 28th day of March 2023 in Criminal Appeal No. 97 of 2022 JUDGMENT OF THE COURT 12th & 26th February, 2026 NDIKA, J.A.: The appellant, Idrisa Athuman, also referred to as Naleja, was a primary school educator. He was found guilty by the Resident Magistrate's Court of Musoma of engaging in sexual intercourse with his thirteen-year- old pupil, contrary to the order of nature, on an unspecified day in April 2022. Consequently, he was sentenced to the mandatory life imprisonment. His first appeal to the High Court of Tanzania was unsuccessful, thus prompting this further appeal. i The testimonies of six prosecution witnesses, supported by two documentary exhibits, convey the following account: PW5 Hassan Abdallah Kilasi, the Head Teacher at Kyawazaru Primary School in Butiama District, was informed on 28th June 2022 by a certain Gwataku, the father of one of his pupils, that the appellant had made sexual advances towards his son and exhibited a proclivity for sodomy. On the following day, PW5 and his Second Master interrogated seven boys, three of whom admitted to having been sodomised by the appellant. When confronted with the said claims, the appellant categorically denied complicity. An extensive inquiry was promptly initiated, involving district officials such as the District Commissioner, the District Education Officer, the Divisional Secretary, the Ward Education Officer, the police, and medical professionals. The inquiry determined that the complainant, a thirteen- year-old (PW1), was one of the three boys likely to have been sexually assaulted by the appellant. PW1 informed the trial court that the appellant committed sodomy against him on two separate occasions. He initially did it in April 2022 in a bush and then inundated him with a promise to purchase him shoes. Before they parted that day, he threatened to compromise his examination results if he spilled the beans. On the second instance, he lured him into his office, where, after displaying pornographic videos, he perpetrated sodomy once more. PW1 stated that he had consistently been too fearful to inform his parents. He remembered admitting to the actions of the appellant during an interrogation by his Head Teacher and the team in June 2022. Dr. Sande Malulu (PW3), who assessed the complainant at Butiama Hospital, reported that PWl's external anal sphincter muscles were lax, suggesting damage to the anal region, consistent with anal penetration. He submitted the medical examination report - PF3 as exhibit P2. Additional evidence was provided by PWl's father (PW2), a twelve- year-old kid (PW4) who also admitted being another victim of the appellant, and the case investigator (G.7535 Detective Corporal Richard). During his lengthy defence testimony, the appellant not only refuted the charges against him but also asserted that the allegations were fabricated in retaliation for his opposition to a proposal to arrange marriages for three Standard VI girls, which had the endorsement of the Head Teacher and other teachers. He also stated that he was a stringent disciplinarian and frequently chastised PW1 for his errant behaviour. The complainant disliked him due to the belief that he was cruel. 3 The trial court accepted the complainant's narrative, supported by the medical evidence, and subsequently convicted him as charged, imposing a term of life imprisonment, as previously indicated. The High Court, upon appeal, concurred that the complainant's detailed account of forcible anal penetration was corroborated by the medical examination, which indicated traumatised anal sphincter muscles, as well as by the evidence of PW2, PW4, PW5, and PW6. The court also found that the appellant's defence was a mere afterthought, without support from the cross-examination of prosecution witnesses. Consequently, the court dismissed the appeal, affirming the conviction and life sentence. The appellant, appearing as a self-represented litigant, sought to pursue his appeal via two memoranda, articulating fourteen grounds of complaint. As a lay individual, the appellant simply moved for the appeal to be allowed without expounding on his grounds. Conversely, the respondent, represented by learned Senior State Attorney Ms. Wampumbulya Shani, with Mr. Isihaka I. Mohamed and Ms. Joyce Matimbwi, both learned State Attorneys, intensely contested the appeal. 4 We think that the appellant's complaints crystallise into three specific issues: first, that adverse inference ought to have been drawn from the prosecution's omission to field Gwataku, a material witness. Secondly, that PWl's evidence was rendered implausible by the delay in reporting the incident. Finally, that his conviction was unfounded and that his defence was not considered. Beginning with the first complaint, it is common stand that Gwataku did not feature as a prosecution witness. Certainly, this man was father of one of the pupils towards whom the appellant allegedly made sexual advances, laying bare his penchant for sodomy. Gwataku allegedly alerted PW5 culminating to the enquiry that unearthed evidence leading to the appellant's prosecution. It is the appellant's contention that this individual ought to have been fielded as a prosecution witness and that the prosecution failure or neglect to do so must result in an adverse inference being drawn against their case. Rather tersely, Mr. Mohamed refuted that Gwataku was a material witness. He submitted that his omission as a prosecution witness left no hole in the evidence. We recognise the established legal principle that when a party neglects to summon a crucial witness to address a significant issue, the 5 court may infer negatively against that party: see, for instance, Yohanis Msigwa v. Republic [1990] T.L.R. 148 and Aziz Abdallah v. Republic [1991] T.L.R. 71. In the latter case, on page 81, this Court notably remarked that the above principle does not mandate the summoning of every witness familiar with the facts of the case: "It is a wrong idea that the prosecution is under obligation to call and examine all witnesses who are acquainted with the facts o f the case irrespective o f consideration o f time (and, for that matter, consideration o f willingness o f the witnesses to speak to facts). The prosecution are expected to be always concerned with the shortening o f trials." Most importantly, the Court held in that case that where evidence indicates that multiple witnesses could have testified regarding the occurrence, the omission of some from the witness list does not naturally cast doubt on the credibility of the prosecution's account. Consequently, we affirm Mr. Mohamed's assertion that, considering the evidence provided by the six prosecution witnesses, Gwataku was not a momentous witness. We observe no gap in the evidence on record and cannot fathom any value that he would have added had he been summoned and appeared as a prosecution witness. The first complaint is bereft of merit. Turning to the second grievance, the appellant contended that the complainant's testimony was rendered implausible by the delay of about two months in reporting the incident to his parents and the relevant authorities. Disputing that contention, Mr. Mohamed argued, referring to page 11 of the appeal's record, that the delay was excusable because it arose from PWl's fear to tell his parents or the authorities about the molestation. First and foremost, we acknowledge that the credibility of PW1 could be called into question due to the delay in naming the appellant as the perpetrator of the crime - see Marwa Wangiti Mwita & Another v. Republic [2002] T.L.R. 39. Yet, as we previously stated in Selemani Hassani v. Republic [2022] TZCA 127, the principle of credibility requiring early naming of a suspect must not be applied reflexively without considering the specific circumstances of the case. In that case, we observed that: ” .. the above principle must not be made to apply reflexively without having due regard to the particular circumstances o f the case concerned. We think that while it can apply fairly unrestrictedly in respect of, say, cases involving property offences, it will not apply with equal force in cases concerning sexual offences where immaturity o f the victim, death threats or shame associated with such offences may dissuade the victim from reporting the matter with promptitude." In this case, PW1 was a tender-aged child. He testified that the appellant threatened to ensure that he failed his studies if he disclosed the details of the sexual misconduct, in addition to being too frightened to discuss his situation with his parents. He was a vulnerable teenager at the time and must have believed that the appellant's threat was real, rather than fabricated. He could not have been expected to report his ordeal promptly unless a conducive and reassuring environment for questioning was established. Furthermore, we believe it is noteworthy that no evidence was presented to suggest that the complainant was motivated or influenced by an illegitimate motive in making the accusation against the appellant. We shall return to this aspect later in the judgment, but for now we conclude that the delay that is being complained of is rational and explicable. Finally, we interrogate whether the contested conviction lacked evidentiary support and if the appellant's defence was disregarded. 8 The appellant contended that the prosecution failed to provide sufficient evidence for the charged offence, but Mr. Mohamed maintained that the prosecution demonstrated the essential elements of the offence. He said that PWl's testimony, corroborated by the medical expert's evidence and exhibit P2, established that PW1 was subjected to unnatural carnal knowledge. The State Counsel asserted that PW1 clearly identified the appellant as the perpetrator of the reprehensible crime. At this juncture, it is essential to recognise that trials for sexual offences, typically involving only two individuals, render the complainant's testimony critically significant and necessitate comprehensive investigation. The frequently referenced case of Selemani Makumba v. Republic [2006] T.L.R. 379 stipulates that true evidence of such acts must originate from the complainant, indicating that the complainant's truthfulness is overriding. The complainant's testimony, if credible, reliable, persuasive, and aligned with typical human behaviour, may suffice for a conviction - refer to section 135 (6) of the Evidence Act, Cap. 6 R.E. 2023. Upon reevaluating PWl's testimony, we observe that he recounted with clarity and vivid detail how the appellant forcibly sodomised him on two occasions, the initial incident occurring in April 2022. It is crucial to 9 observe that PWl's testimony remained unrefuted following his cross- examination by the appellant. Although the record of appeal on page 9 presents a timeline of April 2020 that contradicts the April 2022 date indicated on the charge sheet on page 1, we are convinced, based on the entirety of the evidence, that PW1 was referencing an incident that transpired in April 2022, rather than April 2020. The evidence, as shown on page 25 of the record of appeal, demonstrates that the appellant was not transferred to the school until 2021 . Moreover, PWl's evidence is supported by the medic's oral evidence and the medical examination report (exhibit P2), which confirm that his body displayed traumatised anal sphincters indicative of penetration of the anal orifice by a blunt object. We recall that the appellant bewailed that his defence testimony was not duly considered. This complaint was similarly raised before the High Court. The court dismissed it after due consideration, mainly because the appellant did not bring up in cross-examination the issue of bad blood between him, on the one hand, and PW5 and other teachers, on the other or the claim that PW1 felt that the appellant was cruel because of incessant chastisement - see page 99 of the record of appeal. The court 10 rightly invoked the principle that an omission or neglect to assail the evidence-in-chief of a witness on a material or essential point by cross- examination would infer an acceptance of that evidence as truthful subject to its being challenged as inherently implausible or probably untrue - Nyerere Nyague v. Republic, [2012] TZCA 103. The third complaint is equally without any basis. In the upshot, we find no substance in the appeal, which we hereby dismiss in its entirety. DATED at MUSOMA this 25th day of February, 2026. G. A. M. NDIKA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Judgment delivered this 26th day of February, 2026 in the presence of the appellant via video link from Musoma Prison, Mr. John Samwel Kivuyo, learned State Attorney for the respondent/Republic and Mr. Shabani Kanyai, Court Clerk; is hereby certified as a true copy of the — - DEPUTY REGISTRAR COURT OF APPEAL li