Sundiata Zambi vs Republic (Criminal Appeal No. 190 of 2023) [2026] TZCA 168 (26 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. 471 OF 2024 SUNDIATA ZAMBI.......................................................................... APPELLANT VERSUS THE REPUBLIC........................................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mbeya) (Kawishe, 3 .} dated the 14thday of May, 2024 in Criminal Appeal No. 190 of 2023 JUDGMENT OF THE COURT 17th & 26th February, 2026 KEREFU, 3.A.: In the Resident Magistrate's Court of Mbeya at Mbeya, Sundiata Zambi, the appellant herein, was charged with the offence of rape contrary to sections 130 (1) (2) (a) and 131 of the Penal Code, Chapter 16 of the Revised Laws (the Penal Code). It was alleged that on 5th February, 2018 at Apoloto Sisimba Area within the City and Region of Mbeya, the appellant had carnal knowledge of a woman without her consent. The appellant denied the charge laid against him and as a result, the case proceeded to a full trial. To establish its case, the prosecution relied on the evidence of four witnesses and two exhibits, to wit, the Police Form No. 3 (exhibit PI) and the sketch map of the scene of crime (exhibit P2). On his side, the appellant testified alone, as he did not call any witness. In a nutshell, the prosecution case, as obtained from the record of appeal, can be briefly stated as follows: That, at the material time, the victim, who testified as PW1 (name withheld), a woman of unsound mind, was living at Apoloto Village with her mother. It was the testimony of PW1 that, on 5th February, 2018, in the morning hours, she went to the forest to collect firewood. While there, she saw the appellant whom she knows as their neighbour. The appellant told PW1 to follow him so that he can show her the place where there was plenty of firewood. PW1 initially refused but upon being further seduced by the appellant she followed him. It was the further testimony of PW1 that, the appellant cut some firewood for her, then suddenly fell her down and raped her. She felt pain and wanted to cry for help but the appellant threatened to cut her with a panga. PW1 stated that, the incident lasted for a long time until she saw the appellant's sperms into her private parts. Thereafter, the appellant left and she had to spend the night at the forest, as she failed to know her way back home. That, in the following day, she was found by her relatives and she narrated the ordeal to them. PW l's testimony was supported by Yusta Wasita (PW2), her sibling, who added that, on 6th February, 2018 she was informed by her brother that PW1 had not returned home. That, they started tracing her at the forest where she used to collect firewood but could not find her. That later, they found her seated alongside the road shivering. PW2 inquired from PW1 what had happened to her and PW1 narrated on how the appellant raped her. It was the other testimony of PW2 that, PW1 was not mentally okay since she was born. That, she was of unsound mind. PW2 testified further that they reported the incident to the police. Upon obtaining the PF3, PW1 was taken to Kiwanja Mpaka Hospital where she was examined and treated by Dr. Ramadhani Hamadi Nyange (PW3) who found that PW l's vagina had bruises and the hymen was not intact, an indication that it had been penetrated by a blunt object. PW3 recorded his findings in the PF3 (exhibit PI). No. F7192 D/C Werema (PW4), testified that he was involved in the investigation of the incident. That, on 9th February, 2018, he arrested the appellant and visited the scene of crime. PW4 prepared a sketch map of the scene of crime which was admitted in evidence as exhibit P2. 3 In his defense, the appellant who testified as DW1, apart from admitting that he knows PW1 as his neighbour, denied to have committed the offence. He contended that, the case was framed up against him, due to the existing conflict between him and the PWl's family. He thus challenged the evidence of PW1 and PW2 that they gave untrue story before the trial court. At the end of it all, the trial court relied on the testimony of PW1 the best witness in this case whose evidence was found to have been corroborated by PW2 and PW3 and found that the charge against the appellant was proved to the hilt. Thus, the appellant was found guilty, convicted and sentenced to thirty (30) years imprisonment and twelve (12) strokes of the cane. The appellant's appeal before the High Court was unsuccessful, as the first appellate court dismissed the appeal and upheld the trial court's conviction and sentence. Still aggrieved, the appellant has preferred the present appeal. In his substantive memorandum of appeal, lodged on 18th September, 2024, the appellant raised two (2) grounds of appeal. In addition, on 4th February, 2026, he lodged a supplementary memorandum of appeal with eight (8) grounds, making a total of ten (10) grounds of appeal. However, for reasons which will be apparent shortly, we do not deem it appropriate, for the purpose of this decision, to reproduce them herein. At the hearing of the appeal, the appellant appeared in person whereas the respondent Republic was represented by Ms. Mwajabu Tengeneza, learned Principal State Attorney assisted by Mses. Ellen Masululi and Veronica Mtafya, both learned Senior State Attorneys. Before we could embark on the hearing of the appeal on its merit, Ms. Mtafya, who addressed the Court on behalf of her colleagues, declared the stance of the respondent of supporting the appeal on the point of law that, 'the appellant's trial was based on a defective charge.’ Submitting in support of that point, Ms. Mtafya faulted the learned High Court Judge for failure to observe that, the appellant was improperly charged before the trial court, as the victim of the alleged rape offence was a woman of unsound mind. To clarify on this point, Ms. Mtafya referred us to page 4 of the record of appeal on item 2 in the memorandum of undisputed matters, where it was clearly indicated that PW1 was a woman of unsound mind. In addition, Ms. Mtafya referred us to page 11 of the record of appeal, where in her testimony, PW2, the PW l's sibling informed the trial court that, "PW1 is not mentally okay since she was born” It was the argument of Ms. Mtafya 5 that, the trial court having been notified that PW1 was of unsound mind was expected to note that, the appellant was required to be charged under the provisions of section 137 of the Penal Code, which provides for an offence of defilement of idiots and imbeciles. That, apart, Ms. Mtafya also faulted the first appellate court for failure to observe that the evidence of PW1 was improperly acted upon by the trial court as the provisions of sections 135 (1) and (5) of the Evidence Act, Chapter 6 of the Revised Laws (the Evidence Act) was not complied with as her credibility was not tested. That, the pointed irregularities cannot be cured under section 411 of the Criminal Procedure Act, Cap. 20 of the Revised Laws (the CPA). That, the said omission had rendered the entire proceedings and judgments of the lower courts a nullity. She thus implored us to invoke revisional powers bestowed on the Court under section 6 (2) of the Appellate Jurisdiction Act, Cap. 141 (the ADA) to quash the proceedings and judgments of the lower courts and set aside the conviction and sentence imposed on the appellant and order for his case to be heard afresh in accordance with the law. The appellant being a layperson, had nothing substantive to respond on the legal issues raised other than praying the Court to allow the appeal and set him at liberty. 6 Having perused the record of appeal in the light of the submissions advanced by the parties, the main issue for our determination is on the propriety and or otherwise of the appellant's trial in the wake of the raised issue of PW l's mental status. It is on record that, before the trial court, the appellant was charged with the offence of rape of PW1. However, and prior to the commencement of the trial, the trial court was notified that, PW1 is a woman of unsound mind. This is evident at page 4 of the record of appeal, where the trial court recorded, under item 2, in the memorandum of undisputed matters that, ’ the victim (PW1) is a woman o f unsound m ind/ Furthermore, in her testimony found at page 11 of the record of appeal, PW2, who is the sibling of PW1, testified that, "PW1 is not m entally okay since she was born” In the circumstances, we agree with Ms. Mtafya that, the learned trial Magistrate, having been notified at the earliest stages of the trial that PW1 was a woman of unsound mind, was required to adequately consider the said matter and find out as to whether the appellant was properly charged or otherwise. As correctly argued by Ms. Mtafya, section 137 of the Penal Code, provides for an offence of defilement of idiots and imbeciles. Therefore, on account of the evidence adduced before the trial court the appellant was required to be charged under 7 section 137 of the Penal Code instead of sections 130 (1) (2) (a) and 131 of the same law indicated in the charge. Hence the offence indicated in the charge was not compatible with the evidence adduced before the trial court. Pursuant to section 251 (1) of the CPA, when such a situation happens, the charge should be amended. The said section states that: "Where in any stage o f the trial it appears to the court that the charge sheet is defective, either in substance or in form, the court may make such order for alteration o f the charge either by way o f amendment o f the charge or by substitution or additional o f new charge as the court thinks necessary to meet the circumstances o f the case unless, having regard to the m erit o f the case, the required amendments cannot be made without injustice; and a ll amendments made under the provisions o f this sub section shall be made upon such terms as the court shall seem ju s t " The above provision provides for the steps to be taken when there is variance between the charge and the evidence. It confers powers on the trial court to allow amendment of the charges to meet the pertaining circumstances. Therefore, in the case at hand, after the prosecution had noted that there is variance between the charge and evidence in respect of the alleged offence, it was required to seek leave to amend the charge, but that was not done. In considering as to whether the defect in the current charge had worked to prejudice the appellant, we have taken note of our previous decisions in Khamisi Abderehemani v. Republic, Criminal Appeal No. 21 of 2017 [2019] TZCA 520 and Jamali Ally @ Salum v. Republic, Criminal Appeal No. 52 of 2017 [2019] TZCA 32, where in Khamisi Abderehemani, the charge sheet under which the appellant stood arraigned for rape, cited sections 130 (1) (2) (e) and 131 (1) instead of the applicable sections 130 (1), (2) (b) and 131 (1) of the Code and in Jamali Ally @ Salum, the charge sheet cited sections 130 and 131 (1) (e) of the Code, respectively. The Court, in addressing the said anomaly in the two cases concluded that the defects did not prejudice the appellants as the particulars of the offence on the said charge sheets were explicit enough to inform the appellants the nature of the rape offence they were facing. Finally, the Court decided that the defects were curable under section 388 of the CPA as the law applicable then. Applying the above two decisions in the present appeal, we think the situation is a distant different, as while in Khamisi Abderehemani (supra) and in Jamali Ally @ Salum (supra), the Penal Code together with some of the provisions of the law creating the offence were properly cited, in the case at hand, the appellant was charged with a complete difference offence as clearly indicated above, thus he could not appreciate the nature of the offence laid against him, so as to properly marshal his defence. It is therefore our settled view that, the wrong and or non-citation of the proper provisions of the law under which the charge was preferred against the appellant in this case, had obviously prejudiced the appellant and he was not accorded a fair trial. In the result, we agree with the submission by Ms. Mtafya that the charge sheet laid before the appellant was defective and the same cannot be cured under section 411 of the CPA. That being the position, we hereby invoke the revisional powers bestowed on the Court under section 6 (2) of the AJA and nullify the aforesaid proceedings and the judgments of both courts below, quash the conviction and set aside the sentence meted out against the appellant. On the way forward, we hasten to entirely and respectfully agree with the appellant that, this is not a fit case for us to make an order for a retrial. The articulated irregularities and unfolded deficiencies in the prosecution case shade doubts that, if the prosecution is given the opportunity there is a likelihood of filling in gaps. 10 It is on record that, despite being notified that PW1 wasawoman of unsound mind, throughout the trial, the learned trial Magistrate did not consider that fact and her evidence was received un-procedurally without first complying with the requirements under sections 135 (1) and (5) of the Evidence. Specifically, section 135 (5) provides that: "A person o f unsound mind shall, unless he is prevented by his condition from understanding the questions put to him and giving rational answers to them, be competent to testify." In terms of the above provision, where there is a witness of unsound mind, the trial court must satisfy itself the said witness is prevented by his/her condition from understanding the questions put to him/her and giving rational answers. In the instant appeal, PW1 testified before the trial court without her credibility being tested but the trial court considered her as the key and best witness who had managed to prove the case against the appellant by relying on the principle established by this Court in Selemani Makumba v. Republic, Criminal Appeal No. 94 of 1999 [2006] TZCA 96 of proving sexual offences. It is unfortunate that the first appellate court, although detected the said irregularity at page 66 of the record of appeal, it fell into the li same trap, as the learned High Court Judge, finally found her to be credible witness, despite the fact that the trial court did not test her credibility in terms of the above cited provision of the law. It is also clear to us that apart from PW1, there was no other witness who proved that the appellant did, indeed rape PW1. We have further noted that, PW1 and PW2 were not credible and reliable witnesses as their evidence is tainted with contradictions and inconsistencies which raise doubt on the prosecution's case. For instance, in her evidence, found at page 7 of the record of appeal, PW1 stated that, on the fateful date, after being raped by the appellant, she spent the night at the forest until the following day when PW2 and other relatives followed her there. However, PW2 at page 11 of the same record, testified that, they started tracing PW1 at the forest where she used to collect firewood, but could not find her. That later, they found her seated alongside the road. It is even not clear on where exactly PW1 spent a night. It is therefore our considered opinion that, since PWl's credibility was not tested as required under the law, it was not safe for the same to be relied upon by the trial court to convict the appellant. It is our further view that, had the first appellate court considered the issue discussed above, it would have come to the inevitable finding that 12 it was not safe to sustain the appellant's conviction, as in the first place, he was not properly charged. In the circumstances, we are increasingly of the view that a retrial order is likely to prejudice the appellant as we held in the case of Fatehali Manji v. Republic [1966] EA 343, at page 344, that: "...In general a retrial w ill be ordered only when the original trial was illegal or defective; it w ill not be ordered where the conviction is set aside because o f insufficiency o f evidence or for the purpose o f enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake o f the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its particular facts and circumstances and an order for retrial should only be made where the interests o f justice require it and should not be ordered where it is likely to cause an injustice to the accused person." Being guided by the above authority, we do not find it appropriate to order for a retrial. 13 In the event, we allow the appeal and order for the immediate release of the appellant from prison unless he is held therein for some other lawful cause. DATED at MBEYA this 25th day of February, 2026. R. J. KEREFU JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL D. J. NANGELA JUSTICE OF APPEAL The Judgment delivered this 26th 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 a true copy of the original. W. A. HAMZA § DEPUTY REGISTRAR 2 COURT OF APPEAL 14