Nzumbe Masunga @ Maguryati & Another vs Republic (Criminal Appeal No. 670 of 2023) [2026] TZCA 141 (26 February 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA ( CORAM: NDIKA. J.A.. FIKIRINI, 3.A, And ISMAIL J.A.^ CRIMINAL APPEAL NO. 670 OF 2023 NZUMBE MASUNGA @ MAGURYATI .................................... 1s t APPELLANT MAREMI MNADA @ MASUNGA ........................................... 2n d APPELLANT VERSUS THE REPUBLIC.................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma) (Mahimbali, J.) dated the 24th day of March, 2023 in Criminal Appeal No. 54 of 2022 JUDGMENT OF THE COURT 13th & 26th February, 2026. FIKIRINI, J.A.: The matter before the Court arises from the marriage of a young girl below the lawful marriage age. Nzumbe Masunga and Mareni Mnada, the 1s t and 2n d appellants respectively, are a son-in-law and his father-in- law involved in the saga. In this appeal the appellants are challenging the judgment of the High Court of Musoma in Criminal Appeal No. 54 of 2022, which upheld i the conviction and sentence imposed by the District Court of Serengeti at Mugumu in Criminal Case No. 310 of 2020, in which the 1s t appellant was charged with rape, contrary to sections 130(1), 130(2)(e), and 131(1) of the Penal Code, whereas the 2n d appellant was charged with sexual exploitation of children, contrary to section 138B(l)(a) of the Penal Code. The particulars of the offence on the first count alleged that, between 18th September, 2019 and 8th September, 2020, the 1s t appellant unlawfully engaged in sexual intercourse with PW1, a girl aged 13 years. Following a full trial, both appellants were convicted upon their respective counts. The 1s t appellant was sentenced to thirty (30) years' imprisonment, while the 2n d appellant received a sentence of 15 years. The prosecution's case was as follows:PWl, aged fourteen (14) was married at age thirteen (13), to the 1s t appellant after he paid partial dowry to her father, the 2n d appellant. After approximately two years, the 1s t appellant, dissatisfied with PWl's performance as a wife, returned her to her parents and demanded a refund of the dowry paid. The matter was reported to the authorities, leading to the appellants' and vPWl's arrest at Issenye Police Station. PW1 and her aunt were issued with a PF3 medical examination form and attended Nyamisingisi Dispensary. PW4, a clinical officer, examined PW1 and reported that her vagina was expanded, consistent with repeated sexual intercourse. In his defence, the 1s t appellant admitted marrying PW1, stating that in September 2019 he paid dowry to the 2n d appellant for that purpose. The marriage was celebrated and consummated. After about one year, PW1 returned to her parents, after the 1s t appellant complained that she could not perform her duties. The 1s t appellant, displeased, reported the matter to the Ward Tribunal. Upon discovering PWl's age, the tribunal referred the matter to the authorities, resulting in the appellants' arrest and prosecution. The 2n d appellant corroborated the 1s t appellant's testimony, confirming receipt of dowry and the purported marriage of his daughter to the 1s t appellant. After evaluating the evidence, the trial court found the charges against both appellants proved beyond reasonable doubt. Accordingly, the 1s t appellant was sentenced to 30 years' imprisonment, and the 2n d appellant to 15 years' imprisonment. On appeal to the 1s t appellate court, the trial court's findings and decision were upheld, hence the instant second appeal on six grounds lodged on 26th September, 2025, which are as hereunder: 1. That the trial magistrate erred in iaw and fact in convicting the appellant without giving chance to call the key witness. 2. That the learned trial magistrate erred in law and fact by convicting and sentencing the appellants on the basis o f inadmissible or improperly admitted evidence from PW4 (the clinical officer). 3. That the learned trial magistrate erred in law and fact by convicting and sentencing the appellants in circumstances where the clinical officer's evidence did not specify the victim's age. 4. That the learned trial magistrate erred in law and fact by convicting and sentencing the appellants in the absence o f the birth certificate to prove the victim's age. 5. That the learned trial magistrate erred in iaw and fact by convicting and sentencing the appellants notwithstanding the lack o f evidence establishing that the victim was a student. 6. That the learned trial magistrate erred in law and fact by convicting and sentencing the appellants in circumstances where the victim's father (the second appellant) did not testify as to her age. On the hearing date, the appellants appeared in person unrepresented, while Ms. Monica Hokororo, Principal State Attorney, assisted by Ms. Happiness Machage and Mr. Isihaka Ibrahim Mohamed, both learned State Attorneys represented the respondent, who opposed the appeal lodged by the 1s t appellant and conceded to the appeal lodged by the 2n d appellant. Both appellants being lay persons, mainly implored the Court to consider their grounds of appeal, allow them and release them from prison. In the alternative they preferred the respondent to go first and they will rejoin. Ms.Machage, learned State Attorney commenced submissions with the 2n d appellant's appeal, noting that he had been charged with the offence of sexual exploitation of a child. To sustain a conviction under section 138B(l)(a) of the Penal Code, the prosecution bore the burden of proving, beyond reasonable doubt, the following essential ingredients: one, the accused permitted a child to remain in premises where sexual activity, indecent exhibition, or show was being carried out; two, such permission was granted for the purpose of causing the child to be sexually abused or to participate in the sexual activity, exhibition, or show; and three, the accused had knowledge of the circumstances. The learned State Attorney candidly conceded that the evidence adduced at trial was insufficient to establish these elements. Consequently, she submitted that the conviction could not stand. In support, she cited Recho Abdallah & Others v. R [2024] TZCA 1067, and prayed that the appeal be allowed, the conviction quashed, the sentence set aside, and the 2n d appellant released. We agree. The prosecution failed to discharge its burden of proof. None of the three essential ingredients were established, apart from the evidence that the 2n d appellant received dowry, there is no other evidence to prove the offence he was charged with. As observed in Recho Abdallah & Others (supra), where the charge sheet did not properly reflect the statutory ingredients of the offence, the Court concluded that appellants were not arraigned on a proper charge. Likewise, in the present appeal, the elements of the offence were not 6 proved. Accordingly, the unsupported conviction and sentence against the 2n d appellant are hereby quashed and set aside. Turning to the 1s t appellant's appeal, he raised six grounds, though ground three was numbered twice, therefore making seven grounds instead of the reflected six. The learned State Attorney addressed grounds one and four together. The appellant alleged that he was denied the opportunity to call witnesses who were present during the payment of dowry, to testify regarding the victim's age. She retorted the assertion is unfounded, referring the Court to page 70 of the record of appeal. Admittedly, this ground is not supported by the evidence on record which speaks volume. What we learnt from the proceedings demonstrates that, after the close of the prosecution case, the appellant was addressed in terms of section 248 (formerly section 231) of the Criminal Procedure Act, R.E. 2023, regarding the manner in which he wished to present his defence. He chose to call no witnesses and tender no documents. After testifying as DW1, he expressly stated that he had no further witnesses to call and accordingly closed his defence. At no stage did he apply to call additional witnesses, including those allegedly present at the dowry payment. This complaint is therefore an afterthought and devoid of merit. On the second ground of appeal, the appellant argued that the trial magistrate erred in admitting what he described as "wrong evidence" from PW4. He contended that proof of cohabitation for one year could not establish the offence of rape. In response, the learned State Attorney, we think rightly submitted that the best evidence of rape is the testimony of the victim, PW1. PW4, a clinical officer, produced medical evidence (Exhibit PI - PF3), which revealed findings consistent with repeated sexual penetration. This medical evidence materially corroborated PWl's testimony, in which she gave a clear and consistent account that the appellants had sexual intercourse with her on several occasions. Importantly, the purpose of PW4's evidence was not to prove cohabitation, but rather to establish penetration, an essential ingredient of the offence. After all, in charges of statutory rape under section 130(2)(e) of the Penal Code, the prosecution is required to prove only two elements: first, that the victim was below eighteen years of age; and second, that penetration occurred. Issues such as consent, the duration of sexual relations, or alleged marital arrangements are legally irrelevant. The offence is complete once unlawful carnal knowledge of a minor is established, even if it occurred only once. Additionally, in a charge of statutory rape under section 130(2)(e) of the Penal Code, the prosecution is required to prove only two elements: one, that the victim was below eighteen years of age; and two, that penetration occurred. The offence is complete once unlawful carnal knowledge of a minor is proved, even if it occurred only once. While corroboration in sexual offences is desirable, it is settled law that a conviction may properly rest on the uncorroborated evidence of the victim, provided the court is satisfied that such evidence is truthful and reliable. In the present case, PWl's testimony was credible and substantially unchallenged. PW4's medical findings further fortified her account. The appellant's reliance on the alleged duration of cohabitation is legally untenable. The trial court properly admitted and relied upon 9 PW4's evidence, which, together with PWl's testimony, sufficiently established the essential ingredients of the offence. This ground of appeal therefore lacks merit. The appellant next contended that the magistrate erred in convicting him based on PW4's evidence, which allegedly did not state the victim's age. This ground is without merit. The learned State Attorney relying on Issaya Renatus v. R [2016] TZCA 218, urged the Court to dismiss the complaint. The record shows that PW4 testified as shown on page 50 of the record of appeal, that PW1 was fourteen years old. This evidence was supported by Exhibit PI (PF3), which was admitted without the 1s t appellant's objection as indicated on page 51 of the record. Even assuming PW4 had failed to establish the victim's age, other witnesses did so. PW2, PW3, and DW2 (the victim's father) testified that PW1 was born in 2008. Simple arithmetic confirms that PW1 was thirteen years old when she testified on 31s t March, 2021, or fourteen years old when DW2 testified on 8th April, 2022. 10 In Issaya Renatus (supra) the Court elaborated that evidence of a victim's age may properly come from the victim, her parents or guardians, or documentary evidence such as a birth certificate. Guided by this authority, we find that the victim's age was adequately proved. This ground accordingly fails. The appellant further argued that the trial magistrate erred in convicting him without a birth certificate to prove the victim's age. This ground, misnumbered as ground four, is essentially answered by our determination of the preceding ground. In the present appeal, PW1 categorically stated she was fourteen years old as found on page 25 of the record of appeal. This evidence was corroborated by DW2, who testified that PW1 was born in 2008. The victim's age was therefore ably proved, notwithstanding the absence of a birth certificate. See: Issaya Renatus (supra), where the Court held that a birth certificate is not the only evidence capable of proving age. Its absence does not necessarily weaken the prosecution's case. See also: Andrea Francis v. R, Criminal Appeal No. 173 of 2014 (Unreported). This ground of appeal is without merit. li Ground six, is on the victim's status as a student. The appellant argued that the trial magistrate erred in convicting him because a thirteen (13) year old should have been a student, yet no evidence was produced to that effect. This argument is misconceived. Statutory rape under section 130(2)(e) of the Penal Code, and sexual exploitation under section 138B, hinge solely on proof of age and penetration (or acts of exploitation). Whether the victim was a student or attending school of any kind is legally irrelevant. The offence is complete once unlawful carnal knowledge of a minor is established. This ground is therefore meritless. The last ground is on victim's age and acceptance of dowry. The appellant contended that the trial magistrate erred in convicting him because the victim's father (the 2n d appellant) did not disclose about her age, leading to the belief that she was 18, and thereby justifying the acceptance of dowry. This ground is untenable. The record shows that the 2n d appellant (DW2) did not dispute the victim's age in his testimony. His failure to disclose her age during the marriage arrangement cannot serve as a 12 shield. Moreover, the prosecution's evidence clearly demonstrated that the victim was underage at the time of the incident. The statutory elements of the offence were proved, and the appellant's complaint lacks merit. Having considered all the grounds, we find the appeal without merit. We consequently dismiss it entirely. DATED at MUSOMA this 26th day of February, 2026. The Judgment delivered this 26th day of February, 2026 in the presence of appellants via video link from Musoma Prison and Jonas Kivuyo, learned State Attorney for the respondent and Mr. Shabani Kanyai, Court Clerk; is hereby certified as a true copy of the original. G. A. M. NDIKA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL 13