Mussa Abimeleki vs Republic (Criminal Appeal No. 171 of 2023) [2025] TZCA 1152 (17 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA CRIMINAL APPEAL NO. 171 OF 2023 MUSSA ABIMELEKI.......................................................................APPELLANT VERSUS THE REPUBLIC...........................................................................RESPONDENT (Appeal from the Judgment of the Resident Magistrate's Court of Manyara at Babati-Extended Jurisdiction) (Lusewa. PRM-Ext. Jurist dated the 12th day of September, 2022 in Criminal Appeal No. 14 of 2022 JUDGMENT OF THE COURT 3rd Oct & 17th 2025. FIKIRINI. J.A.: Before the District Court of Babati District at Babati, Mussa Abimeleki found himself charged with one count of unnatural offence contrary to section 154 (1) (a) (2) of the Penal Code. From the charge sheet, the particulars of the offence are stated thus: that on the 3rd day of September, 2020, at Gichameda Village, within Babati District in Manyara Region, the appellant did have carnal knowledge of one i

Kasichana or PW1, a girl of four (4) years, against the order of nature, whose name was withheld for decency purposes. The matter was heard, and at the conclusion of the trial, the appellant was convicted and sentenced to life imprisonment. His seven (7) grounds appeal to the High Court were unsuccessful. Undeterred, he preferred this appeal to the Court. The evidence presented before the District Court, which led to the appellant's conviction and sentence, may be briefly summarized as follows: on the day in question, Theresia Juma (PW4), the victim's mother and a casual labourer, left her children at home playing while she went to work on a farm. PW1, the victim, was among the children left behind, playing with Bonge and Mariam. While engaged in play, Musa Abimeleki, whom PW1 knew prior, lured her into his room. Inside, he undressed both himself and the victim, and proceeded to sexually assault her by inserting his male organ into her anus. Jazila Athumani (PW2), who had heard noises and initially thought they were from chickens, went to investigate. Upon entering the room, she found the appellant on top of the victim. The appellant chased her away. After committing the act, he gave the victim TZS 100 and

instructed her to buy sweets and not to cry. The victim went to the shop, walking with difficulty, purchased a sweet, but was unable to enjoy it due to the pain. She chose to sleep until PW4 returned. Upon her arrival, the victim disclosed the incident to her. After being chased away, PW2 reported the incident to Chausiku Selemani (PW5), the grandmother of both the appellant and PW2. PW5, accompanied by Bibi Yoyo, went to the scene. As recorded on page 21 of the record of appeal, PW5 found PW1 asleep and visibly distressed. Upon examining her, PW5 concluded that the child had been sexually violated. During the visit, PW1 was crying and complained of pain. PW4 returned home at 14:00 hours and found PW5 and Bibi Yoyo present. PW5 attempted to calm PW4, warning her that the information she was about to share was deeply troubling and had disappointed everyone present. She then disclosed the incident and urged PW4 to report the matter to the police. PW4 examined the victim and observed bruises, blood, and stool. The matter was reported to Magugu Police Station. PW1 was issued a PF3 and taken to Magugu Health Centre, where Dr. Zephania Kushoka (PW3) conducted a medical examination. The examination 3

revealed no injuries to the female genitalia, but noted bruises and loosened sphincter muscles, resulting in involuntary discharge of stool. The victim was treated, and the PF3 was completed. It was admitted into evidence without objection, marked as Exhibit PEI, and read aloud in court. In his defence, the appellant testified as the sole witness. He denied the allegations, claiming he was framed due to a personal dispute with PW4. He alleged that PW4 had previously expressed romantic interest in him, which he rejected. He recounted an incident where PW5 informed him that PW4 was calling him; upon visiting her room, he found her naked. He further claimed that PW4 demanded TZS 2,000,000 to settle the matter privately and avoid court proceedings. During cross-examination, he stated that PW4 went to the police station accompanied by PW5, and it was then that the alleged demand for money arose. The trial court found that the prosecution had proved its case beyond reasonable doubt. Consequently, the appellant was convicted and sentenced as previously stated. Dissatisfied with the outcome, he appealed to the High Court, which dismissed his appeal. Still aggrieved, 4

he approached this Court with six grounds of appeal, summarized as follows;

1. That, the appellant\ being 18 years old at the time o f the offence, was wrongly sentenced to life imprisonment contrary to section 160B(a) and (b) o f the Penal Code.
2. That\ the testimonies o f PW1 and PW2 were recorded in violation o f section 127(2) o f the Criminal Procedure Act (CPA).
3. That, the age o f PW1 was not properly established.
4. That, the testimonies o f PW2, PW4, and PW5 relied upon by the trial magistrate were unreliable, contradictory, and incredible.
5. That, the prosecution failed to call material witnesses, Bonge, Mariam, and Bibi Yoyo.
6. That, the prosecution failed to prove its case beyond reasonable doubt. At the hearing, the appellant appeared unrepresented. He requested the Court to consider the grounds of appeal and adopted his written submissions as part of his oral argument. On the respondent's side in attendance were Mr. Benedict Kivuma Kapela, learned Senior State Attorney, assisted by Messrs. Jackson Jonathan Mayeka and Michael Peter Martin, both learned State Attorneys.

In his filed written submissions, the appellant challenged the life imprisonment sentence, arguing that it contravened section 160B(a) and (b) of the Penal Code, which provides that offenders aged 18 or below at the time of the commission of the offence should be treated in accordance with the provisions therein. He cited the case of Dickson Raymond Makalius & Another v. R, Criminal Appeal No. 225 of 2022, TZCA 395 (8 May 2025; TANZLII) to support his argument. On the second ground, he contended that the testimonies of PW1 and PW2 were recorded in violation of section 127(2) of the Evidence Act. He argued that the record does not indicate whether the witnesses were asked questions to assess their understanding of the oath. Furthermore, the record only reflects a statement that the witness came to court to tell the truth, without clarity on whether this was the victim's own declaration or a statement made on her behalf by the court. He relied on the cases of Athumani Adam Kapaya v. R, Criminal Appeal No. 15 of 2021 [2023] TZCA 17694 (3 October 2023; TANZLII), and Hamimu Hamisi Totoro @ Zungu v. R, Criminal Appeal No. 339 of 2019 [2009] TZCA 79 (19 November 2009; TANZLII) to support his submission. 6

The third and fourth grounds of appeal relate to contradictions and inconsistencies in the testimonies of PW1, PW2, PW4, and PW5. The appellant argued that PW l's claim of being given money to buy sweets conflicted with the assertion that it was Mariam who brought the sweets. He also questioned why PW1 failed to raise an alarm when PW2 entered the room. Additionally, he challenged PW2's inability to specify what the appellant was doing to PW1 and why she herself did not raise an alarm. On the fifth ground, the appellant contended that the evidence presented was inconsistent with the charge, and no amendment was made in accordance with section 234(1) of the Criminal Procedure Act, Cap. 20 (CPA). He cited PW6's testimony, in which the witness stated that he investigated the offence as rape, whereas the appellant was charged with an unnatural offence. The appellant argued that he was convicted on a defective charge and referred to the case of Francis Fabian @ Emmanuel v. R, Criminal Appeal No. 261 of 2021 [2023] TZCA 17936 (12 December 2023; TANZLII) to support his position. The sixth ground concerned the prosecution's alleged failure to prove its case beyond reasonable doubt. The appellant relied on the aforementioned inconsistencies and procedural anomalies as 7

weaknesses that undermined the prosecution's case. He therefore prayed for the appeal to be allowed. Mr. Martin, appearing for the respondent, addressed the grounds of appeal by grouping them. The first and second grounds were argued separately, while the third, fourth, fifth, and sixth grounds were addressed collectively. On the first ground, which challenged the sentence, the learned State Attorney submitted that the marginal notes to section 160B(a) and (b) of the Penal Code refer to the punishment applicable to children under the age of 18. He argued that since the appellant was 18 years old at the time of the offence, the provision did not apply to him. He therefore supported the sentence imposed by the trial court and upheld by the first appellate court, concluding that the ground lacked merit and should be dismissed. When questioned by the Court on whether he had read section 160B(a) and (b) regarding the court's discretionary powers in sentencing persons of or under 18, the learned State Attorney conceded that the appellant did not deserve a life sentence and that the court ought to have exercised its discretion to impose a lesser sentence. Upon further

probing regarding the appropriate sentence, he admitted that section 154(2) of the Penal Code prescribes no alternative sentence. Directed to section 3 of the Law of the Child to determine whether it defines a child, he acknowledged that it does not. However, he agreed that pursuant to sections 114(1), 119(1), and 120(1), (2), and (3) of the Law of the Child Act, the court has the discretion to determine whether the appellant qualifies as a child and to impose an appropriate sentence accordingly. Despite these acknowledgements, the learned State Attorney was still not comfortable with the position, he thus urged the Court to consider section 4 of the Law of the Child Act, which defines a child as a person under the age of 18. When asked by the Court who should benefit in the event of conflicting legal provisions, he unequivocally stated that the appellant should be the beneficiary. Regarding the second ground of appeal, which alleged that the testimonies of PW1 and PW2 were recorded in contravention of section 127(2) of the Evidence Act, the learned State Attorney submitted that both witnesses promised to tell the truth and not lie, and were subsequently sworn and affirmed. He argued that the procedural irregularity was not fatal and should not disqualify the witnesses. He 9

referred the Court to the case of Ally Ngozi v. R, (Criminal Appeal No. 216 of 2018) [2020] TZCA 1786 (24 September 2020; TANZLII), page 19, to support his position, asserting that the anomaly was inconsequential. Addressing the remaining grounds collectively, the learned State Attorney responded to the claim that the prosecution failed to prove its case beyond reasonable doubt. He submitted that the prosecution had successfully established all three elements of the offence of unnatural sexual acts: (1) penetration, (2) the age of the victim, and (3) the identity of the perpetrator. On the element of penetration, he referred to PW l's testimony on page 12 of the record of appeal, where she stated that the appellant inserted his male organ into her anus. This was corroborated by PW2's testimony on page 15, in which she stated that she found the appellant on top of PW1. PW3, who examined PW1, further supported the claim of penetration. Regarding the victim's age, the learned State Attorney submitted that PW3 indicated in the PF3 (Exhibit PI) that PW1 was approximately four years old. He noted that a doctor is among those qualified to 10

determine a victim's age, alongside parents, teachers, and other relatives familiar with the victim's birth. As for the identity of the perpetrator, the learned State Attorney emphasized that PW1 clearly identified the appellant, whom she knew prior to, as the person who took her to his room, undressed her, and sodomized her. PW2's testimony further supported this, as she witnessed the appellant on top of PW1. He clarified that PW2 is the appellant's cousin, being the daughter of the appellant's paternal uncle, and PW5 is the grandmother of both. After being informed of the incident, PW5 visited the victim, who named the appellant as the offender. Responding to the fifth ground, which challenged the prosecution's failure to call material witnesses such as Bonge and Mariam, the learned State Attorney dismissed the claim as unfounded. He cited section 143 of the Evidence Act (now section 152), which provides that the number of witnesses is immaterial, and that a single witness may suffice to prove a fact. Finally, addressing the sixth ground concerning contradictions and inconsistencies, the learned State Attorney conceded that minor 11

contradictions existed but argued that they did not affect the substance of the case. He maintained that the prosecution had proved its case beyond reasonable doubt and prayed for the appeal to be dismissed, with the conviction and sentence upheld. The appellant had nothing to rejoin. We are invited to determine whether this appeal has merit. The grounds shall be discussed in the following order: second, third, fourth, fifth, sixth, and lastly, the first ground. The second ground concerns the complaint that the testimonies of PW1 and PW2 were recorded in contravention of section 127(2) of the Evidence Act, which requires that a child of tender age must promise to tell the truth and not lies to the court. As rightly admitted by the learned State Attorney, the provision was not strictly complied with. Both the promise and the administration of oath or affirmation were applied to the two witnesses, resulting in a procedural mix-up. The key question before the Court is whether this anomaly affected the credibility or admissibility of the testimonies of PW1 and PW2. While the appellant contends that it did, the learned State 12

Attorney holds a contrary view. We find that the procedural irregularity was inconsequential and did not warrant the disqualification of their testimonies. The rationale behind requiring a promise to tell the truth and the administration of an oath or affirmation is to compel the witness to speak truthfully. In sexual offence cases, the best evidence often comes from the victim. Therefore, what matters most is whether PW1 was a credible witness. We answer this in the affirmative. PW1 gave a clear account of what the appellant did to her. Her testimony was supported by PW2, whose account was challenged by the appellant on the basis that she did not specify what the appellant was doing to PW1. While it is true that PW2 did not explicitly state the appellant's actions, the fact that he was found undressed and on top of PW1 allows for a reasonable inference that he was sexually violating her. The evidence of sexual violation was not limited to PW l's account. It was corroborated by PW4 and PW5, both older women who examined PW1 and by PW3, the medical doctor who confirmed that the victim had been sexually violated. These findings reinforced PW l's testimony, which specifically identified the appellant as the perpetrator. Like the 13

two lower courts, we find both PW1 and PW2 to be credible witnesses. Notably, PW2 is a relative of the appellant, and no reason was advanced to suggest she had any motive to falsely implicate him. Therefore, even in the absence of strict compliance with section 127(2) of the Evidence Act, PW l's credible account was sufficient to establish that the appellant committed the offence. Her evidence, with or without strict procedural compliance, was admissible and could be relied upon. See: Ally Ngozi (supra). The third ground concerns the age of the victim. This issue need not detain us. On page 17 of the record of appeal, PW3 confirmed the victim's age based on clinical examination. In Issaya Renatus v. R, (Criminal Appeal No. 542 of 2015) [2016] TZCA 218 (29 April 2016; TANZLII), the Court affirmed that proof of a victim's age may be established by among others, a medical practitioner. The fourth ground challenges the reliability of the prosecution witnesses, PW1, PW2, PW4, and PW5, on the basis of alleged contradictions and inconsistencies. Minor discrepancies in witness testimony are inevitable, especially when each witness recounts what 14

they personally observed or experienced. Uniformity in testimony would suggest rehearsal, which sometimes undermines credibility. What is crucial is whether the inconsistencies go to the root of the matter. In this case, they do not. For instance, PW1 testified that she went to the shop to buy a sweet, whereas another account suggests that Mariam went instead. This discrepancy is immaterial and does not affect the substance of the case. Similarly, the failure of PW1 and PW2 to raise an alarm, or PW2's inability to describe precisely what the appellant was doing, does not negate the core facts established by the evidence. The core narrative, that the appellant took PW1 into his room, penetrated her anus, was witnessed by PW2, and that post-incident injuries were observed, is consistent and remained unshaken during cross-examination. PW3, the medical officer who examined the victim, confirmed the presence of bruises on the victim's anus. No material contradictions were identified that could undermine the prosecution's case. The appellant's grievance under this ground concerns the prosecution's failure to summon Bonge, Mariam, and Bibi Yoyo as 15

witnesses. In addressing this, we are guided by section 143 of the Evidence Act, which provides that no particular number of witnesses is required to prove a fact. The prosecution is only required to prove its case beyond reasonable doubt, which may be achieved through a single credible witness. In the present appeal, five prosecution witnesses were called, each playing a significant role: PW1, the victim, gave a direct account of the incident. PW2, an eyewitness, corroborated aspects of PW l's testimony. PW3, the medical examiner, confirmed physical injuries consistent with sexual assault. PW4, the victim's mother, and PW5, the appellant's grandmother, both provided supporting evidence regarding the victim's condition and disclosure. In Wambura Marwa Wambura v. R, (Criminal Appeal No. 115 of 2019) [2022] TZCA 429 (14 July 2022; TANZLII), the Court acknowledged that failure to call a material witness may lead to an adverse inference, particularly where the witness is central to the case, as was the investigator in that matter. However, the circumstances here are distinguishable. The testimonies of PW1, PW2, and PW3 were sufficient to establish the offence. The absence of Mariam, Bonge, and Bibi Yoyo does not weaken the prosecution's case. 16

The appellant generally contends that the prosecution failed to prove its case beyond reasonable doubt. It is well established that to prove the offence of unnatural acts, the prosecution must demonstrate: (a) anal penetration, (b) the age of the victim, and (c) the identity of the perpetrator. See: Majaliwa Ihemo v. R, Criminal Appeal No. 197 of 2020 [2021] TZCA 304 (15 July 2021; TANZLII). The credibility of the victim is a critical factor in sexual offence cases, since she is the one who could bring to light what was done in secrecy. In this case, PW1 gave a detailed account of how the appellant undressed her and penetrated her. Her testimony was corroborated by PW3, who observed bruises in the anal area and a loose sphincter muscle causing involuntary stool passage, as well as hinting at her age to be four (4) years. This direct and corroborated evidence was not successfully rebutted by the defence. We therefore affirm the findings of the two lower courts that the prosecution proved its case beyond reasonable doubt. The second up to the sixth grounds discussed jointly by the respondent Republic are all without merit hence dismissed. Under the first ground, the appellant challenges the legality of the life imprisonment sentence imposed by the trial court. He asserts that, 17

being 18 years old and a first offender, he should have received corporal punishment instead. Thus, arguing that it contravenes section 131(2) of the Penal Code. He, however, in his written submissions, cited section 160B(a) and (b) of the Penal Code, which guides sentencing persons of or under the age of 18. The provision states: 1 1 For promotion and protection o f the right o f the child, nothing in Chapter XV o f this Code shall prevent the court from exercising— (a) reversionary powers to satisfy that cruel sentences are not imposed on persons of or below the age of eighteen years; or (b) discretionary powers in imposing sentences on persons o f or below the age o f eighteen years." [Emphasis added] This provision prohibits the imposition of cruel sentences on children who are 18 or under 18 years of age for offences under Chapter XV of the Penal Code, which includes unnatural offences. In the present case, it was not disputed during the trial that the appellant was 18 years old at the time of the offence. Thus, guided by the dictates of section 160B(a) and (b), we are of the considered view that the life imprisonment sentence imposed by the 18

trial court and upheld by the first appellate court was harsh and illegal. Given that the appellant was 18 years old and a first offender, he ought to have been sentenced to corporal punishment only. However, considering that the appellant was convicted on 7th January 2021 and has since served over four years of imprisonment, we find that the time already served exceeds the corporal punishment he would have lawfully received. In the interest of justice, he should be released from prison. In Emmanuel Samwel @ Noel v. R, Criminal Appeal No. 304 of 2021 [2024] TZCA 518 (5 July 2024; TANZLII), the Court held: "Given the stated position o f the law, it was wrong to sentence the appellant to life imprisonment and, in addition, three strokes o f the cane. We thus quash the sentences meted on the appellant and allow the appeal to the term served." Having considered all the grounds of appeal, we find that the appeal is partially lacking in merit on the second, third, fourth, fifth and sixth grounds and accordingly dismiss it. In light of this finding, we are compelled to exercise our revisional powers under section 6(2) (formerly section 4(2)) of the Appellate Jurisdiction Act, Cap. 141 (the AJA), and 19

hereby set aside the illegal and improper sentence of life imprisonment. The appellant is to be released forthwith unless otherwise lawfully held. DATED at ARUSHA on this 17th day of October, 2025. S. A. LILA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL Judgment delivered this 17th day of October, 2025 in the presence of Appellants in person, Mr. Eunice Makala, learned Senior State Attorney for the respondent and Ms. Jasmin Kazi, Court Clerk; by visual Court is hereby certified as a true copy of the original. ' 20