Juma Yahya Magunira vs Republic (Criminal Appeal No. 38 of 2024) [2025] TZCA 1313 (22 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: WAMBALI. J.A.. KAIRO, 3.A. And NANGELA, J.A.) CRIMINAL APPEAL NO. 38 OF 2024 JUMA YAHYA MAGUNIRA ........................ ............................... APPELLANT VERSUS THE REPUBLIC ........................................ ........................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania, at Dar es Salaam) (Kakolaki, 3.) dated the 18th day of November, 2022 in Criminal Appeal No. 242 of 2021 JUDGMENT OF THE COURT 06thOctober & 22n d December, 2025 NANGELA. J.A.: This appeal arises from the decision of the High Court of Tanzania 4 ; 4 . ? sitting at Dar es Salaam, which upheld the decision of the District Court of Mkuranga (the trial court). The appellant was, before the District Court, arraigned, tried, and convicted of the offence of rape contrary to sections 130 (1), 130 (2) (e), and 131 (1) of the Penal Code, Cap. 16 [R.E. 2019]. The victim (PW1) was a girl aged 14 years. For purposes of convenience, her name will continue to be concealed and, throughout this judgment, she will be referred to as PW lior the victim. For clarity, a brief summary of the facts constituting the appeal is necessary. The appellant and PW1 used to live nearby. It happened as well that the appellant was once an employee of one Paul Masola (PW2), who is PWl's father. On the 26/07/2020, while outside her aunt's home, the appellant called PW1 and the two went and had sexual intercourse in one unfinished house. It was around 19.00hrs. According to PW1, the act of sexual intercourse with the appellant on that day constituted their second encounter. After the said incident, PW1 returned to her home. ■. f i v However, it was the evidence of PW2, the victim's father, that prior to her return he (PW2) had made diligent inquiries to ascertain her whereabouts. He even testified of having proceeded to the residence of the victim's aunt in search of her, but his efforts bore no fruit. Upon the complainant's eventual return, PW2 demanded an explanation as to her absence. In response, PW1 stated that she had been in the company of her friend, whom she identified as the appellant. She further disclosed ?•'. f , V - that the appellant had carnal knowledge of her in a nearby unfinished building. Following that disclosure, PW2 ^testified to have arrested the appellant and, in the company of PW1, the matter was subsequently reported at Kimanzichana Police Post, whereupon a PF3 (exhibit PI) was 2 issued to PW1 and the appellant was placed in lawful custody. Armed with exhibit PI, PW1 was medically examined at Kilimahewa Health Center by Dr. Atanasia Lameck (PW3). Upon examination, it was the finding of PW3, as documented in exhibit PI, that the victim's vaginal condition was indicative of recent sexual penetration. Subsequently, when the appellant was interrogated by WP.8053 DC Neema Philip Mushi (PW5), it was alleged that he confessed to the commission of the offence. However, his confession was never reduced into writing. PW5 thereafter referred the appellant to a Justice of the Peace, Mr. Eliya Lukamba (PW4), for the purpose of recording an extra judicial statement. Following these events, the appellant was formally charged before the trial court with the offence of rape. Upon a full trial, the appellantr was found guilty as charged. Consequently, he was convicted and sentenced to a thirty (30) years imprisonment. Being dissatisfied,with both the conviction and sentence, the appellant preferred an appeal to the High Court. Upon a thorough re- evaluation of the evidence and consideration of the applicable law, the High Court dismissed the appellant's appeal and upheld the conviction and the sentence imposed upon him by the trial court. Aggrieved yet by the High Court's decision, the appellant has now instituted the present second appeal before the Court. It is trite and firmly settled law that on a second appeal, this Court will not interfere with the concurrent findings of fact made by the two lower courts unless it is demonstrated that the said courts acted on no evidence, misapprehended the evidence or misapplied the law in such a manner as to occasion a miscarriage of justice. For that position see the decision of the Court in Said Hamisi Mchanjama v. Republic, Criminal Appeal No. 390 of 2022 [2024] TZCA 449 (12 June 2024, TanzLII). In his memorandum of appeal, the^appellant raised five grounds of appeal, which may be paraphrased to read as follows, that: (1) The evidence relied upon by the first appellate court to confirm the conviction o f the appellant was in nature and substance weak, incredible, uncorroborated and contradictory; (2) The first appellate court disregarded the appellant's defence; (3) The first appellate court failed to realize that it was erroneous to rely on the testimony o f PW3, a person who did not fill the PF3 (exhibit PI); (4) It was erroneous for the firsf appellate court to confirm the conviction o f the appellant while the age o f the victim (PW1) was not proved as required by the law, and $ (5) The prosecution did not prove the case against the appellant to ' CUt ; - the required standard. At the hearing of this appeal, the appellant appeared himself, unrepresented by a legal counsel. He had nothing much to add to his grounds of appeal other than adopting the same and urging this Court to consider them, allow his appeal, and set him free. On the other hand, the respondent Republic had the legal services of Ms. Fidesta Uisso, learned Senior State Attorney. In presenting the appeal before us, Ms. Uisso articulated her position with commendable clarity and brevity: the respondent Republic was not supporting this appeal. In doing so, she addressed grounds .one, four, and five jointly, while arguing grounds two and three separately, beginning her submissions with the latter. In our view, the approach which Ms. Uisso adopted was both appropriate and logical, and we shall likewise adopt it in the course of our deliberations and determination. This will apply not only to the appellant's grounds of appeal, but also to the submissions and the record of appeal. Turning to the second ground of appeal, the appellant contended that his defence had not been considered by the first appellate court. Ms. Uisso, however, submitted to the contrary, arguing that the record of appeal clearly demonstrates that both the trial court and the first appellate court duly considered the appellant's defence in determining the case and appeal before them. In our assessment, the second ground of appeal need not detain us for long. We agree with Ms. Uisso's submission that, indeed, the first appellate court considered the appellant's defence, as is plainly evident in the record of appeal. The first appellate judge expressly found that the appellant's defence, namely, that he had been framed by PW2 due to an alleged debt, was an afterthought, given that the appellant had failed to cross-examine PW2 on that claim. i i . ■ In essence, whenever a party is entitled to cross-examine a witness, it is incumbent upon that party to exercise such right, as the primary purpose of cross-examination is to challenge or impeach the evidence of the witness on the matters before the court or tribunal. See Mathayo Mwalimu and Masai Rengwa v. Republic [2009] T.L.R. 271. In principle, the right to cross-examine is a right available to all litigants, and was open to the appellant. However, as correctly observed by the first appellate court, the appellant failed to avail himself of that opportunity, despite its availability. Besides, as the record of appeal illustrates, after a careful consideration of the appellant's defence in the context of the prosecution's case, the first appellate court rightly concluded that the appellant's defence failed to create meaningful doubts in the entirety of the prosecution's case. In light of the foregoing, we are of a settled view that the second ground of appeal is without merit. Concerning the third ground, the essence of the appellant's complaint is that the first appellate court erred in relying on the testimony of PW3 to uphold the appellant's conviction, contending that PW3 was not the individual who filled exhibit PI. (| We note, however, that, while Ms. Uisso acknowledged that the name of PW3, recorded as "ANASTAZIA'V differs from the name appearing on exhibit PI, where it reads "ATASIA", she was quick to argue that the discrepancy arose from a clerical error, by the trial court in the course of recording PW3's testimony. She contended that such a clerical mistake does not undermine the fact that PW3 was indeed the same person who medically examined PW1 and filled exhibit PI. Accordingly, she urged us to dismiss this ground of appeal. ' ?' On our part, we accede to Ms. Uisso's submissions and observations. In Mussa Ernest v. Republic (Criminal Appeal 463 of 2019) [2022] TZCA 655 (27 October 2022, TanzLII), the Court, having carefully examined the record before it, observed that: "the wrong citation o f the complainant's name in the charge had nothing to bear on the evidence led by the prosecution and therefore, it is a curable defect failing under section 388 (1) o f the CPA. As can be seen from the record o f appeal, the wrong citation which essentially contained not more than a misspelling of the complainant's father's name seems to have been written with a slip o fa pen on the part o f the draftsman of the charge. O fmuch importance, contrary to what was contended by the appellant, there is no iota o f evidence and we can hardly glean anything from the record , J suggesting, albeit remotely, that in this case, the complainant could have been any other person other than PW2". [Emphasis added] The position espoused in the above cited decision of this Court does apply to the present appeal, particularly with regard to the clerical error in recording the name of PW3. It follows, therefore, that, although the name of PW3, as it appears on exhibit PI, differs from the name recorded by the trial court, such discrepancy is negligible and does not substantially ■ C .-w / depart from PW3's true name which is linked to the signing of and filling in the blank spaces in exhibit PI. In any case, the defect is curable under 8 section 411 (1) of the CPA. Viewed in this light, it follows that ground three of the appeal is as well devoid of merit. Finally, we turn to grounds one, four, and five, which were argued jointly by Ms. Uisso. At the heart of these grounds is the appellant's contention that the prosecution's case was not proved to the required standard. However, as observed earlier, Ms. Uisso held a contrary opinion. s it It is evident, from the record of the appeal, that the offence for which the appellant was convicted is that of statutory rape. In such an offence, the law requires proof of three essential ingredients: first, that the complainant was a person under the age of eighteen (18) years; second, that there was penetration of the complainant's female organ by a male organ; and third, that it was the appellant who perpetrated the act. The duty rests upon the prosecutio^n to establish these ingredients, and such proof must be beyond reasonable doubt. In her submissions, Ms. Uisso maintained that, the prosecution side managed to prove the three ingredients; constituting the offence of rape and, that, such proof was beyond any reasonable doubt. Firstly, concerning the age of PW1, it was her submission that her age was evidently proved to be below 18 years. She contended that such proof was based on the testimonies of not only by PW1 but also by PW2 and PW3, all of whom were found to be credible witnesses. To further support her submission/she relied on the authorities of the Court, in Issaya Renatus v. Republic (Criminal Appeal No. 542 of 2015) [2016] TZCA 218 (29 April 2016, TanzUI); Godfrey Gabinus @ Ndimba & Others v. Republic (Criminal Application No. 91 of 2019) [2020] TZCA 12 (19 February 2020, TanzLII); and Trazias Evarista < § > Deusdedit Aron v. Republic (Criminals Appeal No. 188 of 2020) [2021] TZCA 697 (29 November 2021, TanzLII). Essentially, the above cited authorities underscore the principle that the age of a victim may be satisfactorily proved through credible testimonies of either the victim, parents or guardians or a medical doctor, and that the assessment of witness credibility is a matter for the Court. Secondly, it was Ms. Uisso's submission that, based on the testimonies of PW1 and PW3, who are further supported by exhibit PI, there was ample evidence that PWl'Sj vagina had been penetrated. Relying on the authority of Selemani Makumba v. Republic [2006] T.L.R. 379, she contended that even PWl's testimony could alone be sufficient to prove the fact that she had been penetrated and, that such 10 testimony of hers constituted a reliable and prima facie proof of penetration. Thirdly, it was Ms. Uisso's submission, regarding the identity of the perpetrator, that, based on the testimony of PW1, it was the appellant whom she had intercourse with. According to Ms. Uisso, such a conclusion was reinforced by the fact that PW1 and the appellant were well- acquainted, and the incident, being the second of its kind, provided ample opportunity for observation, precluding any possibility of mistaken identity. Fourthly, Ms. Uisso was of a further submission that PW1 was able to promptly name the appellant to PW2. In that regard, Ms. Uisso considered any alleged contradiction in the prosecution evidence as being immaterial, and unable to have affected the prosecution's case. She relied on the decision of the Court in Abiola Mohamed @ Simba v. Republic (Criminal Appeal No. 291 of 2017) [2021] TZCA 632 (2 November 2021, TanzLII) to support her submission. Consequently, she urged us to dismiss this appeal in its entirety. Having considered the parties' submissions and carefully scrutinized the record of appeal, we fully endorse Ms. Uisso's position. Our stand is based on the fact that all three elements constituting the offence of rape under section 130 (1), as read together with sections 130 (2) (e), and 131 (1) of the Penal Code, Cap. 16, were indisputably proved beyond reasonable doubt. The contention that the prosecution's case fell short of the requisite standard of proof is therefore without merit, and, we hold that accordingly, the first, fourth and fifth grounds of appeal have no merit. In light of the foregoing, we find'ho reasons to depart from the concurrent findings of the courts below. The appeal is therefore devoid of merit and is dismissed in its entirety. 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 Judgement delivered this 29th day of December, 2025 in the presence of the appellant in person-unpresented, Ms. Judith Kyamba, learned State Attorney for the respondent/Republic, via virtual and Ms Jas copy of the original.