Shaiza Edward @ Mrema vs Republic (Criminal Appeal No. 475 of 2022) [2026] TZCA 126 (26 February 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MPEYA CCQBAMi MKUYE. 3 RUMANYIKA. 3.A. And AGATHO. 3.A.) CRIMINAL APPEAL NO. 475 OF 2022 SHAXZA EDWARD @ M REM A........................................ ......... APPELLANT VERSUS THE REPUBLIC .................................................................. RESPONDENT (The appeal is arising from the judgment of the High court at Mbeya) fMbaowa, 3.) dated the 7th day of December, 2021 in Criminal Appeal No. 171 of 2020 JUDGMENT OF THECOURT 27 ° & 26* February, 2026 RUMANYIKA, J-A Shaiza Ewadi @ Mrema, the appellant, stood charged before the District Court of Mbarali at Rujewa (the trial court) on two counts, namely: rape contrary to sections 130(1), (2)(e), and 131(1) of the Penal Code and impregnating a school girl contrary to section 60A of the Education Act. It was alleged that, sometime in March 2020 at Ihanga Village, Mbarali District, he had carnal knowledge of PW1, a 15- year-old Standard VI pupil, whereby the later conceived. We shall refer to her as the "victim" in order to conceal her identity, and to protect her dignity. i $ According to PW2 (the victim's mother), on 21 May 2020 at even time, the victim got missing from home. On making inquiries, one Challi, their neighbour led her to the appellant's room where they found the victim. The matter was accordingly reported to the local hamlet chairman and later to police. A medical examination that was conducted by PW4 on the victim revealed that her hymen was raptured and that she was seven-weeks pregnant. The appellant was at large until on 16 July 2020 when he was arrested and charged. As such, the first three prosecution witnesses talked about the incident of March, 2020. We will not deal with the evidence of PW5 because it is irrelevant to the issue under consideration. In his defence, the appellant, testifying as DW1 asserted that from 22n d May to I S J u l y 2020 he was away from the crime scene visiting his brother. That he was in cold blood with the victim's parents, and thus, fixed. He had only one Gladness Michael Msweye, who testified as DW2, in support of his defence. In the end, the trial court found the appellant guilty only on the first count of rape. He was sentenced to a thirty (30) years' imprisonment. Dissatisfied with that decision, he appealed before the High Court at Mbeya, vainly. Based on the evidence of the victim, the High Court found her credible enough, just as her evidence was corroborated by # the medical evidence of PW4, the testimonies of PW2 and PW3. Still aggrieved, the appellant has preferred the present appeal, as a second attempt advancing a total of thirteen (13) grounds. Eight grounds in the substantive memorandum of appeal filed on 14th July 2022 and five grounds in his supplementary memoranda of appeal filed on 10th February, 2026 and the other one presented in Court on 23* February 2026, at the hearing of the appeal. Nevertheless, for the reasons that will follow shortly, we shall not reproduce or address the grounds of appeal, except, remotely, ground eight in the first supplementary memorandum of appeal. At the scheduled hearing of the appeal, the appellant appeared in person, unrepresented. Mses. Naomi Mollel and Hannarose Kasambala, both learned Senior State Attorneys teamed up with Mr. Rajabu Msemo, learned State Attorney representing the respondent Republic. 3 i On set, the appellant successfully asked for the State Counsel to respond to his points of grievance, first, while reserving his right to rejoin, should the need arise. Ms. Kasambala readily supported the appeal on account of some material variance between the charge sheet and the evidence adduced in court. Expounding on the point, she contended that, the particulars of offences alleged to have been committed on diverse dates of March, 2020 while the victim, PW2, PW3 and PW4 stated that it was May, 2020. Further, that on being cross examined by the Public Prosecutor, the victim stated, specifically, that she had sexual intercourse with the appellant on 01/03/2020. That she could not remember the other subsequent material dates but it was in May, 2020. The learned Senior State Attorney referred us to pages 6 to 8 and pages 12 to 13 of the record of appeal, demonstrating the alleged offending testimonies. She added that, in terms of section 234(1) or, currently section 252(1) of the Criminal Procedure Act [Cap 20 R.E. 2023] (the CPA), the prosecution should have sought to amend the charge to arrest the situation, which they did not. In the circumstances, Ms. Kasambala added, the said mishap rendered the charged offences unproven, as the Court observed in Mashaka Kashinje v. R (Criminal Appeal No.80 of 2022) [2024] TZCA, which she cited to fortify her point. She thus, urged us to allow the appeal, quash the impugned conviction and set aside the sentence, because the prosecution case was not proved to the hilt. In rejoinder; the appellant welcomed Ms. Kasambala's concession to his appeal and proposal, on way forward. He urged us to allow the appeal and restore his liberty, without more. We have heard the arguments of the parties and also given due consideration to Ms. Kasambala's uncontested submission and the proposed way forward, in favor of the appellant. In a nutshell, that, based on such a number of shortcomings, the prosecution case was not proved beyond reasonable doubt. Therefore, the issue for our determination is whether the learned Senior State Attorney has stated a proper position of the law. Notably, when the above referred prosecution evidence is read along with the particulars of the charged offence, the alleged variance is glaring to us. In order to appreciate Ms. Kasambala's concern and observation, which we accept as being the correct position of the law, we take the 5 liberty of reproducing the particulars of the charged offence, as are set out on the corresponding charge sheet: "That SHAIZA S/O EDWARD @ MREMA charged on diverse dates o f March 2020 at Ihanga village within Mbara/i District in Mbeya Region did have sexual intercourse to [the victim] ... aged 15 years old". From the very outset, we want to stress on what the Court has repeatedly held, regarding the effect of variance between the charge sheet and the corresponding evidence. At least this cannot be overemphasized. For instance, in M ashaka Kashinje (supra) we reiterated our stance, citing our previous preposition in Em m anuel Kabelele v. R, Criminal Appeal No. 536 of 2017 [2021] TZCA 531, and observed as follows: " it is incum bent upon the Republic to lead evidence show ing th at the offence was com m itted on the date alleged in the charge sheet which the accused was expected and required to answer. I f there is any variance o r uncertainty in the dates, then the charge m ust be amended in terms o f section 234 o f the CPA. I f th is is not done, the preferred charge w ill rem ain unproven and the accused sh a ll be » entitled to an acquittal. Short o f that failure o fjustice will occur" (Emphasis added) Applying the preceding legal principle to the instant case, we have examined the respective charge, as it was laid on the appellant's door on 17th July 2020, as appearing on pages 1 to 2 of the record of appeal. Apparently, it indicated that the offence was committed on diverse dates in March 2020, as alluded to before. Indeed, this fact is inconsistent with the evidence adduced in court, literally that the appellant did not commit the charged offences in March, 2020, as alleged, but in May 2020. As such, the evidence adduced did not support the particulars of the charged offence. Put in other words, it concerned the incident that is said to have occurred in May 2020, thereby creating a daylight material inconsistency between the charge and the reality on the ground. As such, now that the charge and the witnesses testimonies were materially at variance, and the charge sheet was not amended, it was incumbent upon the prosecution to have taken one of the following essential steps; One, to lead the evidence consistently proving that, indeed, the charged offence was committed on diverse dates, as alleged in the charge sheet or two, obtain leave of the court and amend the charge accordingly to suit the purpose, in terms of section 234 (1) of the CPA then, to which the accused was expected and required to answer. Unfortunately, none of the two was done. In fact, the said mishap was incurable and thus, fatal, rendering the charged offence unproven. In those circumstances, therefore, the trial court had only one option, that is to acquit the appellant without much do. See a series of our decisions, such as in Abel M asikiti v. R (Criminal Appeal No. 24 of 2015) [2015] TZCA 8. Before we pen off, we need not stress than it is necessary that, in any judicial criminal proceedings, the strength and effect of a charge cannot not be over emphasized. It is solely a foundation of it all. Therefore, based on the undisputed fact, in this case, that the charge preferred against the appellant and the adduced evidence are at variance, as alluded to before, he is entitled to an acquittal. In strict terms, therefore, it is as good as there was no charge from the inception in the respective proceedings. It follows, therefore, in the absence of an amended charge to suit the condition, there could be no case whatsoever to be proved by the prosecution against the appellant in the first place. Let alone a beyond reasonable doubt proof. 8 * In ttie upshot, we allow the appeal entirely. Consequently, we quash the purported conviction, set aside the sentence. We also order immediate release of the appellant from prison, unless.he is held for any other lawful cause. DATED at MBEYA this 25th day of February, 2026. R. K. MKUYE JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL The Judgment delivered this 26th day of February, 2026 in the presence of the Appellant in person, Ms. Naomi Mollel, learned Senior State Attorney representing the respondent/Republic and Ms. Jasmin Kazi, Court Clerk, is hereby certified as a true copy of the original. & C. i / m ^ S A '^ '* DEPUTY REGISTRAR COURT OF APPEAL 9