Kimu Mahimba Ngorome @ Choriso vs Republic (Criminal Appeal No. 426 of 2023) [2025] TZCA 1314 (29 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: WAMBALI. J.A., KAIRO, J.A. And NANGELA, J.AJ CRIMINAL APPEAL NO. 426 OF 2023 KIMU MAHIMBA NGOROME @ CHORISO ............................... APPELLANT VERSUS THE REPUBLIC.............................................................. RESPONDENT (Appeal from the Decision of the High Court of Tanzania, at Dar es Salaam) fBweaoqe, J/l dated the 28th day of April, 2023 in Criminal Appeal No. 163 of 2022 JUDGMENT OF THE COURT 03rd October & 29th December, 2025 NANGELA. J.A.: On the 15th July 2022, the District Court of Temeke (the trial court), convicted the appellant, KIMU MAHIMBA NGOROME @ CHORISO, of rape contrary to section 130 (1) (2) (e) and 131 (1) of the Penal Code, [Cap. 16 R.E. 2019], and sentenced him to 30 years imprisonment. The offence was committed on "PW2" (name withheld), a girl aged 15 years. Both the appellant and the victim (PW2) are residents of Tuangoma Village, Mbagala area, within Temeke District, Dar es Salaam Region. For better appreciation of what transpired, we find it apposite to briefly consider some of the material facts, as found by the trial court and i

confirmed by the first appellate court. On 20th January 2021, between 20.00hrs and 21:00hrs, the victim (PW2) was sent to buy a bar of soap from a nearby shop. In the same area, the appellant owned a barbershop business in the name of "Kizuriso". On her way to the said nearby shop, PW2 passed by the appellant's barbershop. She did see and greeted the appellant When PW2 was alone returning home from the shop, someone grabbed her by the neck from the rear of her back, blind-folded and covered her mouth and dragged her to a nearby unfinished house. Thereat, that person undressed her pants, bent her a bit by her neck and, while standing, raped her. In the course of the act, and with the aid of electricity light from a nearby house, PW2 turned her face towards her rapist and allegedly recognized him as being the appellant whom she :i knew before by the name "Choriso". Afterwards, the appellant managed to jump off and disappeared from the crime scene. PW2 regained her strength and, upon arriving home, despite having collapsed outside their house, she promptly recounted the incident to her father one Mohamed Omary Ndoga (PW1), and allegedly named the appellant as the perpetrator of the rape

Subsequently, PW1 and PW2 reported the matter at Maturubai Police Station, where they were issued with a PF3 (exhibit PI) and referred for medical examination at Mbagala Zakhiem Health Centre. By then, it was past midnight, approximately 02:00 hours, on 21s t January 2021. At the health centre, one Dr. John Rimoy (PW3) examined PW2 and found that she had sustained a ruptured vagina, an injury requiring suturing. Having been attended medically, PW2 was admitted to a recovery room. In his report (exhibit PI), which he signed and dated on 23r d January, 2021, PW3 concluded that PW2 had been penetrated by a blunt object. In the early hours of 21s t January, 2021, shortly after the incident, PW1 received a call from the police informing him that the appellant had been arrested and was in the custody of police. PW1 was instructed to bring PW2 to the police station and, thereat, PW2 identified the appellant. Subsequent to the arrest, PW4 commenced investigations, during which PW2 narrated her ordeal. Thereafter, the appellant was arraigned in court and charged with the offence of rape. At the trial, the prosecution's case, relied on the testimonies of PW2, PW1, PW3, and WP 3884 D/SGT Agnes (PW4). On the other hand, in his defence, the appellant testified under oath as DW1. Briefly, in his defence the appellant asserted that on 20th January, 2021, he was at his

barbershop business up to approximately 10:40 p.m. when he closed his business and then returned home. He denied committing the alleged offence but admitted that he was arrested on 21s t January, 2021 by four unidentified young men, who accused him of raping a certain girl and took him to the police. During his cross-examination, the appellant denied to be acquainted with PW2 and, further disassociated himself from the name "Choriso." The appellant's testimony was supported by Shabani Said Kindamba (DW2) and Mohamed Said (DW3). As previously observed, the trial court found him guilty of the alleged offence of rape and, accordingly convicted and sentenced him. Aggrieved by that decision of the trial court, he preferred an appeal to the High Court (the first appellate court). However, upon hearing and determination, the High Court was satisfied that the appellant was properly identified by PW2 and affirmed that he was the perpetrator of the offence. Consequently, the High Court upheld the conviction and sentence, thereby dismissing that first appeal. Undaunted, the appellant filed this second appeal, submitting two memoranda: a substantive memorandum containing five grounds of appeal and a supplementary memorandum with two additional grounds.

However, upon review, the parties and the Court agreed that the supplementary grounds were already encompassed within ground three of the substantive memorandum. Accordingly, their inclusion in the supplementary memorandum of appeal appears tautological. In light of the foregoing, the appellant's grounds of appeal may be succinctly summarized as follows:

1. The first appellate court erred in fact and law by upholding the conviction based on PW2's visual identification, which was insufficient, weak, and unreliable.
2. The first appellate court failed to draw an adverse inference from j the prosecution's omission to call the arresting officers as witnesses, an omission that materially weakened the prosecution's case.
3. The first appellate court erred in disregarding materia! inconsistencies and procedural irregularities, including contradictions regarding the dates o f the alleged offence and the signing o f exhibit PI, the failure to establish PW3's competence, and the lack o f endorsement of exhibits PI and P2, contrary to the exhibits Management Guidelines, 2020.
4. The appellant's defence was not adequately considered, resulting in a miscarriage o fjustice.
5. The prosecution failed to prove its case beyond reasonable doubt

At the hearing of this appeal, the appellant appeared in person, unrepresented. He earnestly requested that his grounds of appeal and written submissions be considered, his appeal allowed, his conviction and sentence quashed, and that he be set free. On the other hand, the respondent Republic, resisting this appeal, was represented by Ms. Kijja Elias Luzungana, learned State Attorney. This being a second appeal, it is trite that this Court should avoid interfering with the two lower courts' concurrent findings of fact. That general rule of practice is, however, not without exception. The exception applies where it is dear that there was a misapprehension of the evidence or a departure from settled principles of law. For this stance, see the cases of Salum Mhando v. Republic [1993] T.L.R 170; and Mohamed Said v. Republic, (Criminal Appeal No. 145 of 2017) [2019] TZCA 252 (23 August 2019, TanzLII). We shall, consequently, be guided by that principle as we now revert to address the grounds of appeal, starting with the first ground. Essentially, in this appeal, the pressing question is not whether PW2 was raped or not. That fact was proved beyond doubt based on the testimonies of PW1, PW2, PW3 and exhibit PI. Same applies to the question regarding PW2's age which was as well proved by not only PW1

and PW2 but also PW3. The pertinent issue, however, is whether it was the appellant who raped PW2. This issue forms the basis of the appellant's first ground of appeal as it seeks to challenge the concurrent findings of the two lower courts which were to the effect that based on the evidence of PW2's visual identification by recognition it was the appellant who raped PW2. In his written submissions, which the appellant adopted as forming his oral account, he contends that the alleged visual recognition was not impeccable but was rather weak, insufficient, far-fetched, and, hence, unreliable. He gave three reasons to that effect: firstly, that it was doubtful whether PW2 could have recognized him while PW2 had stated that the rapist had grabbed her from behind, blindfolded and dragged her to an unfinished house, raped her from behind and thereafter jumped and vanished into the darkness. Secondly, that, the incident took place at night around 9:00 to 10:00 pm and, though PW2 stated the scene of crime benefited from the electricity light from the neighbouring house, its distance from the source and intensity and whether it was from a tube- in light or a bulb were not explained. Thirdly, that, the duration which PW2 took in observing the appellant as being her assailant was not stated.

Based on those three reasons, the appellant concluded that the circumstances under which the alleged identification by recognition took place were unfavourable to support his conviction. Reliance was placed on the decisions of the Court in Godfrey Lusian Shirima v. Republic (Criminal Appeal 40 of 2021) [2022] TZCA 584 (29 September 2022) and Felician Joseph v. Republic (Criminal Appeal 152 of 2011) [2012] TZCA 93 (28 May 2012) (both from TanzLII). When Ms. Luzingana took the floor in reply to the appellant's submission, she did concede that PW2 did not go to all extent of clarifying on the intensity of the light through which PW2 was able to identify the appellant at the scene of the crime. However, she strenuously maintained that PW2 was able to identify the rapist as being the appellant since, first, as reflected in the record of appeal, through the assistance of the nearby electricity light, she managed to turn her neck and recognized it was "Choriso", the appellant, who was raping her. Second, the appellant was j a person who was familiar to PW2. Third, immediateiy thereafter PW2 named him to PW1; and, fourth, given the nature of the incident itself, there was sufficient proximity between PW2 and the appellant, a fact which was relevant and sufficient for PW2 to have recognized him. 8

To support her submission, the learned State Attorney referred us to our previous decision in Aziz Mohamed & Another v. Republic (Criminal Appeal 15 of 2006) [2010] TZCA154 (4 October 2010, TanzLII). Consequently, she was of the opinion that the first ground of appeal was devoid of merit and should be dismissed. To begin with, it goes without saying that establishing the identity of the offender in an offence such as the one with which the appellant was charged is the prosecution's foremost duty. That said, since this appeal rests on evidence of identification, the Court has repeatedly held that visual identification or recognition is not foolproof unless the conditions ensuring unmistakable identity are clearly established. In essence, apart from the oft-cited decision in Waziri Amani v. Republic [1980] T.L.R 252, which laid the foundational principles, several subsequent decisions, including Godfrey Lusian Shirima v. Republic (supra), Felician Joseph v. Republic (supra), Aziz Mohamed & Another v. Republic (supra), Dadu Sumano @ Kilagela v. Republic (Criminal Appeal No. 222 of 2013) [2014] TZCA 248 (23 June 2014), and Ally Miraji Mkumbi v. Republic (Criminal Appeal No. 311 of 2018) [2021] TZCA 260 (17 June 2021) (all available on TanzLII), have elaborated various factors and conditions to be considered by the Court

in assessing the favourabiiity of the circumstances surrounding identification. Some relevant factors or conditions, though not exhaustive and not to be applied cumulatively, include: whether the perpetrator was known to the victim; whether the incident occurred at night and, if so, whether the source and intensity of the available light were adequately explained by the victim; the proximity and duration of the victim's interaction with the perpetrator; and whether the victim named the perpetrator at the * earliest possible opportunity. In view of the foregoing considerations, and within the context of the present appeal, the pivotal issue for determination is whether the foregoing conditions or factors were satisfactorily established and whether they indeed favored a correct and reliable identification or recognition of the appellant. n In her submissions, Ms. Luzungana conceded that, although PW2 had testified to the presence of light at the scene, she did not explain its intensity, the distance of its source from the place where the incident occurred, or the duration of the act. She nonetheless contended that PW2 had recognized the appellant during the course of the act, upon turning her head to look at him, a recognition corroborated by her prior 10

acquaintance with him, her description of his trousers, and her prompt identification of him to PW1. On our part, although we have noted Ms. Luzungana's concession, it is our view that a proper determination of whether all relevant factors eliminating the possibility of mistaken identity were considered by the first appellate court requires a holistic assessment of the circumstances in which PW2 experienced the incident. This necessitates a careful review of the testimonies of PW2, PW1, and PW4, alongside the defence case presented by DW1, DW2, and DW3, a task the Court now undertakes. In doing so, it is worth noting, firstly, that, in her testimony on the record, PW2 informed the trial court that the assailant who raped her had first grabbed her from behind, covered her face and mouth with his hands, and dragged her to a nearby unfinished house, where the act was committed. Secondly, she further stated that the assailant had approached her from behind, bent her neck slightly, and penetrated her and, thirdly, according to PW4, upon interviewing PW2, the latter reported to him that the person who had ambushed her from behind was unknown to her. Fourthly, PW2 asserted that when her assailant penetrated her J ! from behind, she managed to turn her head and that is when she recognized him as being the appellant. Fifthly, and as a final point, the

record of the appeal does reveal that, PW2 indeed disclosed to PW1 that the appellant had raped her. Having subjected the foregoing summary of evidence to the most careful scrutiny, we are nonetheless confronted with unresolved doubts of a material character. It is undisputed that PW2 testified to having identified the appellant when she turned her face during the course of the act; yet a pressing question remains whether, in the circumstances imposed upon her by the assailant, she was in a position to make a reliable and accurate recognition. We are constrained to adopt this view for several compelling reasons. First, PW2 conceded that at no time was she able to disengage from her assailant. Second, the act did not occur in a face-to-face encounter; rather, the assailant was positioned behind her and had blindfolded her, making it difficult to comprehend how she could have sufficiently turned to identify the appellant. Third, it remains uncertain how many times, and for what duration, PW2 could have turned to observe the appellant, particularly in light of her assertion that throughout the ordeal her assailant held her by the neck, bent her forward, and, •i despite her struggles to free herself, she was unable to do so.

Equally significant, and which Ms. Luzungana conceded to, is the absence of any explanation regarding the intensity of the light said to have illuminated the scene, or the distance between its source and the locus of the assault. In the absence of such particulars, can it be concluded with any degree of assurance that the identification by recognition was free from the possibility of error and, hence, reliable? In our view, it cannot. In Godfrey Lusian Shirima v. Republic (supra), the Court, having made reference to several of its previous decisions, including Mohamed Shabani v. R, Criminal Appeal No. 41 of 2009; Magwisha Mzee 8 t Another v. R, Criminal Appeal Nos. 465 and 467 of 2007; Shadrack Kuhaha v. R, Criminal Appeal No. 139 of 2015; and Daniel s/o Paul @ Meja v. R, Criminal Appeal No. 307 of 2016 (all unreported), pointed out three pertinent principles concerning reliance on the evidence of visual identification: "one, such evidence is o f the weakest kind and most unreliable and should be acted upon cautiously after the court is satisfied that the evidence is watertight, and aii possibilities o f mistaken identity are eliminated. Two, even if it is evidence o f recognition that evidence must be watertight In that regard, where the 13

offence is committedat night, and the question of light is in issue, there must be dear evidence as to the intensity of the said light and that bare assertions, would not do. Three, in matters o f identification, conditions for identification aione, however idea! they may appear are no guarantee for truthful evidence" [Emphasis added] The above settled position was equally reiterated by the Court in Ally Miraji Mkumbi v. Republic (Criminal Appeal No. 311 of 2018) [2021] TZCA 260 (17 June 2021, TanzLII). In that appeal, referring to its decision in Issa s/o Mgara @ Shuka v. Republic (Criminal Appeal No. 37 of 2005) [2008] TZCA 112 (22 April 2008, TanzLII), the Court held that: "... even in recognition cases where such evidence may be more reliable than identification o fa stranger, dear evidence on source o flight and its intensity is of paramount importance. This is because, as occasionally held, even when the witness is purporting to recognize someone whom he knows, as was the case here mistakes in recognition o fdose relatives and friends are often made". [Emphasis added] 14

Having regard to the above settled legal principles and the peculiar circumstances under which PW2 found herself at the time of the alleged act, it is impermissible to conclude that she was in a position to identify or recognize the appellant. Besides, as will be demonstrated shortly, the prospects of a reliable identification become even more doubtful when considered in light of the appellant's defence. This, in turn, raises the appellant's fourth ground of appeal, namely, that his defence was not adequately considered by the first appellate court. In his defence, the appellant consistently maintained a categorical denial, asserting that at the material time alleged by PW2, he was at his business premises until approximately 10:45 p.m. This account by appellant, which in essence raises a defence of alibi, was corroborated by DW2 and DW3, who testified to having been in his company on the night of 20th January, 2021. In our considered view, notwithstanding the appellant's failure to file a notice of alibi as required by law, the first appellate court was nonetheless duty-bound to subject that line of defence to a careful, judicious, and comprehensive evaluation alongside the rest of the evidence on record. m \ For instance, DW2 testified to have been in the company of the appellant from about 9:45 p.m. until the time he closed his business, 15

whereas DW3 stated that the appellant attended to him at around 10:40 p.m., shortly before one "Ustaadhi Shabani" arrived. Although it was not made clear at what precise point DW2 parted company with the appellant, such omission, in the circumstances of this appeal, does not amount to a discrepancy of material significance. This is particularly so, bearing in mind that the prosecution neither cross- examined DW2 as to the precise time he joined the appellant nor DW3 as to whether the said "Ustaadhi Shabani" was in fact DW2 or another individual of the same name. That inaction of the prosecution left unresolved a matter which ought to have been clarified, considering that the name "Shabani" is a common one along the coastal regions. In our view, had such facts been clarified, it could have been argued that the testimonies of DW1, DW2, and DW3 were contradictory and the entire defence could be found wanting. However, in the absence of such clarifications, there arises doubt that must, in law, operate in favour of the appellant because, the testimonies of DW2 and DW3 established that, at all material times up to 10:40 p.m., the appellant was at his place of business, making it impossible for him to have been in two places simultaneously.

Upon a meticulous consideration of the evidence and the findings of the courts below, therefore, we are compelled to hold that, even if PW2 mentioned the appellant's name at the earliest opportunity, such an isolated fact cannot, without more, constitute conclusive or reliable proof of identification by recognition. It was incumbent upon the first appellate court to have considered and evaluated that factor in conjunction with all other relevant factors, including, in particular, the adequacy and intensity of illumination at the scene of crime, a matter which, as has already been observed, remained in considerable doubt, together with the entire evidence in the record. We are of the settled view, therefore, that, a proper application of the well-established principles governing visual identification, when coupled with a judicious and comprehensive evaluation of the appellant's defence within the totality of the evidential matrix, ought properly to have precluded the courts below from arriving at the conclusions to which they did. In the result, we are satisfied that the first and fourth grounds of appeal are meritorious and must accordingly succeed. Having found merit in the first and the fourth grounds of appeal, and having determined that the appellant was not properly identified as the perpetrator of the alleged rape, we now turn to consider the fifth 17

ground of appeal: whether the prosecution proved the charged offence beyond reasonable doubt. In her submissions, Ms. Lazungana argued that, in rape cases, the prosecution must establish three essential elements: the age of the victim, the fact of rape, and the identity of the perpetrator. Relying on the testimonies of PW1, PW2 and PW3, she asserted that all these elements were satisfactorily proved. In her view, PW2's evidence was corroborated by PW1, to whom the incident was reported, and by PW3, whose medical examination (as reflected in exhibit PI) confirmed that PW2 had indeed been raped. : [ As previously observed, it was not disputed that PW2 was under the age of eighteen and that penetration occurred. The remaining issue, however, was whether it was the appellant who committed the act. This determination hinged on the reliability of the identification evidence. Although Ms. Luzungana maintained that PW2 had properly recognized the appellant, having already found that the appellant was not properly identified or recognized by PW2, it necessarily follows that the fifth ground of appeal is equally meritorious. Since the first, fourth and the fifth grounds of appeal can sufficiently dispose of the appeal, we find no need to consider the remaining grounds. 18

In fine, we allow this appeal, quash the appellant's conviction, set aside the sentence and order for the immediate release of the appellant from prison, unless he is lawfully detained for other reasons. DATED at DODOMA this 22n d day of December, 2025. F. L. K. WAMBALI JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL D. J. NANGELA JUSTICE OF APPEAL Judgment delivered this 29th day of December, 2025 in the presence of the appellant in person/Unrepresented, Ms. Judith Kyamba, learned counsel for the respondent/Republic via virtual Court and Ms. Jasmin Kazi Court Clerk;.,^f|p^w:ertified as a true copy of the original. //V, Q gf C. M. MAGESA DEPUTY REGISTRAR COURT OF APPEAL 19 -J