Salimu Said @ Haji Mussa Labai vs Republic (Criminal Appeal No. 156 of 2023) [2025] TZCA 1127 (16 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: SEHEL, J.A., MAKUNGU. 3.A. And FELESHI, J.A.^ CRIMINAL APPEAL NO. 156 OF 2023 SALIMU SAID @ HAJI MUSSA LABAI ............... .........................APPELLANT VERSUS THE REPUBLIC.......................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Manyara sitting at Babati) (Kahvoza, J.) dated the 13th day of March, 2023 in DC. Criminal Appeal No. 4 of 2023 JUDGMENT OF THE COURT 3rd & 16th October, 2025 SEHEL. J.A.: This is a second appeal by the appellant, Salimu Said @ Haji Musa Labai. It originates from the District Court of Babati at Babati (the trial court) in Criminal Case No. 17 of 2022 where the appellant was convicted of the offence of rape contrary to sections 130 (1) (2) (a) and 131 (1) of the Penal Code. Following his conviction, he was sentenced to thirty (30) years in prison. His appeal to the High Court of Tanzania at Manyara sitting at Babati (the first appellate court) was dismissed in its entirety, hence, this second appeal. i

It was alleged by the prosecution that, on 11th January, 2022 at Galapo area within Babati District in Manyara Region, the appellant had sexual intercourse with a woman without her consent. For the purpose of this judgment, we shall refer her as "the victim" or "PW1" in order to conceal her identity. It happened that, in the morning hours of the fateful day, at around 06:20 am, the victim was heading to her usual Kiosk in Galapo area. While on her way and when she reached at Kwa Tango, an unknown man, appeared from behind, whom later she came to identify as the appellant. In an instant, the appellant grabbed her and pulled her down to korongoni and warned her by uttering the following Swahili words "/eo ama zako ama zangu nipd' which may be translated in an English axiom that " Today, sink or swim, you have to give m d'. The victim tried to resist him but he overpowered her and threatened to kill her. There and then, he dropped down his trouser and underwear and, pushed the victim in a valley surrounded by bush, into the ground. He tore her underwear and raped her for almost ten minutes. After ejaculation, he dressed up and pleaded to her not to disclose the ordeal to anyone and he even tried to dust off her back. As she was afraid, she agreed with him. 2

The appellant left, heading to Galapo centre while the victim followed him at a distance. Upon reaching at the centre, she saw him entering into a local bar. She quickly entered into a neighbouring business kiosk and sought help from PW2. She told PW2 that the man who just entered into the local bar had raped her that morning. PW2 went in and apprehended the appellant He brought him outside and questioned him. Initially, the appellant denied the allegation and tried to escape but PW2 chased him, subdued him and sought assistance from PW3, a motorcycle taxi driver, commonly known as "boda bodsf' to transport the appellant to the nearest police station. PW3 drove the appellant to Galapo Police Station. An investigative officer, Detective Corporal (D/CpI) Erasmus (PW4) visited the scene of crime and drew a sketch map, exhibit PI. At Galapo Health Centre, on 11th January, 2022 at around 11:00 am, Dr. Neema Kwatlema Sanka (PW5) examined the victim. She observed male sperms and vaginal bruises inside her labia majora. She recorded her findings in the police form number three (PF3) that was admitted in evidence as exhibit P2. The appellant denied the allegations asserting that he was arrested at 09:00 am while waiting for the bus at the bus station. That, 3

he was heading to work, to collect sand. He wondered why the victim said he raped her as he had no prior conflict with her. The trial court considered two main issues, namely; whether the victim was raped by the appellant on 11th January, 2022, and whether the prosecution proved the case beyond reasonable doubt. Having weighted the evidence from both sides, it concluded that PW1 gave unshakable evidence that she was raped by the appellant, and that, since the incident took place during day light, the appellant was positively identified by the victim. Besides, the victim had ample time to observe the appellant as she conversed with him for a while and she also followed him up to the place where he was arrested by PW2. The trial court found that the evidence of PW1 was corroborated by PW5 who examined her few hours after the rape and found bruises in her labia majora and male sperms. Accordingly, it held that the prosecution proved its case beyond reasonable that it was the appellant who raped PW1 without her consent. As stated earlier on, the first appellate court dismissed the appellant's appeal. Still aggrieved, the appellant filed this second appeal contesting for his innocence. He first filed a memorandum of appeal comprised of the following five (5) grounds: 4

"1. That the Honourable tria l judge grossly erred both in law and fact to convict and sentence the appellant w ithout considering the principle which have to be taken into account She failed to note the PW1 the victim did not taken oath before the testification in court. 2. That the Honourable tria l judge grossly erred both in law and fact to convict and sentence the appellant by believing on what (PW1) victim told the court that the appellant had m ark on this face the fact which was not true. 3. That the Honourable tria l judge grossly erred both in law and fact to convict and sentence the appellant 30 years in prison in failing to note that the identification parade was not done as p er the law. 4. That, the Honourable tria l judge grossly erred both in law and fact to convict the appellant after failin g to note the prosecution side did not produce or tender before the Court any docum entary evidence or certificate o f (PW5) Doctor. He also failed to prove in Court the laboratory which the test was done. 5. That the Honourable tria l judge grossly erred both in law and fact to convict and sentence the appellant after failin g that (PW4) told the Court that I pleaded g u ilty before in m y statem ent but the prosecution side did not produce or tender any exhibit before Court." 5

At the hearing of the appeal, he presented a supplementary memorandum of appeal raising the following three (3) grounds: "1. That, the first Appellate Court erred in law and fact in not finding that ; unexplained delay to arraigned the Appellant was prejudicial and constituted to a deliberate breach o f section 33(1) o f the Crim inal Procedure A ct (the CPA) [Cap R. E. 2023]. 2. That, the first Appellate Court erred in law and fact in not finding that, there was variance on location between the charge and evidence adduced which ought to have been am ended in term s o f section 251 (1) o f the CPA Cap 20 R.E. 2023. 3. That, the first Appellate Court erred in law and fact in not finding that, the identity o f the Appellant as a cu lprit o f the offence was questionable . " At the hearing of the appeal, the appellant appeared in person, unrepresented, whereas, Ms. Rose Kayumbo and Mr. Raphael Rwezahula, both learned State Attorneys, appeared for the respondent Republic. 6

When given a chance to submit on the grounds of appeal, the appellant preferred to adopt the two sets of memoranda of appeals and let the respondent Republic to reply to the grounds of appeal and the written arguments he had earlier on filed. Ms. Kayumbo began to address the Court by informing us that the respondent was objecting to the appeal. She pointed out that her learned brother, Mr. Rwezahula would start to respond to the first ground in the supplementary memorandum of appeal, the fourth and fifth grounds in the memorandum of appeal which would be argued separately and finally the second ground in the supplementary memorandum of appeal. On her part, she would argue conjunctively the second and third grounds in the memorandum of appeal together with the third ground in the supplementary memorandum of appeal while the first ground in the memorandum of appeal would be argued separately. Starting with the first ground in the supplementary memorandum of appeal, Mr. Rwezahula admitted that PW1 was not sworn before taking her evidence as reflected at page 8 of the record of appeal. However, he contended that since PW1 informed the trial court that she was a Moslem, the trial court correctly affirmed her as per the dictates of sections 3 and 4 of the Oaths and Statutory Declarations Act 7

(henceforth the OSDA). He therefore urged the Court to find the ground of appeal is without merit. On our part, we have gone through this ground of appeal and having heard the submission of the learned State Attorney, we find that the issue for our determination was whether PW1 was mandatorily required to make an oath before the receipt of her evidence. In as far as the issue of giving evidence under oath or affirmation, as rightly submitted by the learned State Attorney, is governed by the Oaths and Statutory Declarations Act (the OSDA) and its Rules. Section 3 of the OSDA obliges courts, in any judicial proceedings, to administer oaths or affirmation before taking any evidence. Further, section 4 of the same Act details as to who may take an oath or affirmation. For ease of reference, we reproduce hereunder section 4 of the OSDA that: "S. 4. Subject to any provision to the contrary contained in any written law, an oath sh all be made by- fa) any person who m ay law fully be exam ined upon oath or give or be required to give evidence upon oath by or before a court; or (b) any person acting as interpreter o f questions p u t to and evidence given by a person being exam ined by o r giving evidence before a court:

Provided that, where any person who is required to make an oath professes any faith other than the Christian faith or objects to being sworn, stating\ as the ground o f such objection > either that he has no religious b e lie f or that the m aking o f an oath is contrary to his religious b e lie f such person sh all be perm itted to make h is solem n affirm ation instead o f m aking an oath and such affirm ation sh all be o f the same effect as if he had made an oath." From the above provision of the law, every witness, who is required to give evidence before any court, or, an interpreter to that effect, is required to take an oath or affirmation. The law further provides that a person who profess a faith other than the Christian faith may be permitted to make his solemn affirmation - see the case of DSM Education & Office Stationery & Another v. NBC Holding Corporation & 2 Others [1999] TZCA 84. In the appeal at hand, the record of appeal showed that, after PW1 took a stand in a witness box, she informed the trial court that she professed Moslem religion. Consequently, she was permitted to make solemn affirmation instead of making an oath. The act of the trial court to administer affirmation to PW1 was in compliance with the provisions 9

of section 4 of the OSDA. We therefore find that this ground of appeal lacked merit and dismissed it. With regard to the fourth ground in the memorandum of appeal, Mr. Rwezahula submitted that PW5 was a qualified practitioner as she explained her credentials before the trial court that she was a medical doctor who completed her studies at Bugando College and awarded a diploma in medicine. He therefore urged us to dismiss this ground of appeal. The issue, here, was whether PW5 had established her credentials for the trial court to rely on her expertise opinion. This ground of appeal should not detain us at all. The record of appeal clearly showed that, in her testimony, PW5 gave details of her credentials that she was a medical doctor having obtained a diploma in medicine from Bugando College. In that respect, we agree with Mr. Rwezahula that this ground of appeal was devoid of merit because PW5's qualification is far beyond the definition of a medical practitioner adopted in the case of Charles Bode v. The Republic [2016] TZCA 578 that it also covers a clinical officer. Accordingly, we are satisfied that PW5 was a competent and well qualified medical doctor to give her expertise opinion in terms of section 52 of the Evidence Act which 10

generally allows courts to receive, expert opinions. This ground is therefore dismissed. In the fifth ground in the memorandum of appeal, the appellant complained that the trial court proceeded to convict him while the alleged confessional statement was not tendered in evidence. Mr. Rwezahula rightly submitted that this ground of appeal was baseless. We concur with him that in the entire record of appeal, nowhere was shown that the appellant was convicted based on his cautioned statement. As alluded earlier on, the trial court convicted the appellant basing on the evidence of PW1 which was corroborated by PW2, PW3, PW4 and PW5. We are therefore satisfied that this ground of appeal is unsubstantiated and proceed to dismiss it. Responding to the second groundin the supplementary memorandum of appeal, Mr. Rwezahula submitted that the alleged variance between the charge and the evidence on the place the crime was committed was without substance. He referred us to page 1 of the record of appeal where the charge sheet showed that the offence was committed on 11th January, 2022 at Galapo area in Babati Manyara Region. He also referred us to page 8 of the record of appeal where PW1 testified that she resided in Galapo area and that, on the fateful day while en route to work and upon reaching at Kwa Tango Area, the

appellant raped her. Therefore, it was the submission of the learned State Attorney that Kwa Tango Area was within Galapo area and this fact was also appreciated by the appellant himself when he said that when he was arrested at Galapo. In that respect, he asserted that there was no need to amend the charge because the evidence was in line with the allegation contained in the charge sheet. He distinguished the facts in the cases cited by the appellant. That, in the case of Francis Fabian @ Emmanuel v. The Republic [2023] TZCA 17936, the Court dealt with the variance on the date of the commission of the offence. That, in the case of Godfrey Simon & Another v. The Republic [2022] TZCA 8, the Court dealt with the failure by the prosecution to cite the punishment section in the statement of the offence. While in this appeal, the place where the commission of the offence took place was clearly stated by the victim and supported by the appellant. On this ground, we are invited to determine whether there was variance between the charge sheet and the evidence on the place where the crime was committed. It is settled law that where there is a variance between the charge and the evidence, the charge must be amended to tally with the 12

evidence and that if no amendment is effected, the charge will remain unproven and the accused person shall be entitled to an acquittal as a matter of right- see the cases of Francis Fabian @ Emmanuel v. The Republic (supra) and Godfrey Simon & Another v. The Republic (supra). In the appeal at hand, the charge sheet, appearing at page 1 of the record of appeal, alleged that the offence was committed at Galapo area within Babati District. In her testimony, as correctly submitted by Mr. Rwezahula, PW1 clearly stated that she resided in Galapo area and that, on the fateful day, while en route to her work she met with the appellant who pushed her and raped her. In addition, the appellant supported the prosecution evidence, as he said, he was arrested at Galapo area where the crime was committed as per the allegation in the charge sheet. In that regard, we are satisfied that there was no variance between the charge and the evidence to require the prosecution to amend the charge sheet. This ground of appeal is also dismissed as it lacked merit. Responding jointly to the second and third grounds in the memorandum of appeal and the third ground in the supplementary memorandum of appeal, Ms. Kayumbo submitted that the appellant was positively identified as correctly held by the first appellate court. She

elaborated that, according to the circumstances of the case, the appellant was no longer a stranger to the victim because, one, the incident took place at around 06:20 hours up to 08:00 hours, therefore, there was enough light for the victim to identify the appellant. Two, the appellant spent about ten minutes, therefore, the victim had ample time to observe the appellant who was at a zero distance. Three, the appellant conversed with the victim as he demanded for sex and after committing the crime, he pleaded to her not to disclose the crime to anybody. Four, the victim pursued the appellant until his arrest and at no point in time she lost sight of him. The learned State Attorney submitted that the time spent by the victim to observe the appellant and the pursuit she made until his arrest ruled out the possibility of mistaken identity. She contended that all these circumstances eliminated a need to mount an identification parade and to describe the appellant's attire and physique. She added that identification parade is conducted where the attacker is a total stranger which is not the case in the appeal at hand. The learned State Attorney referred us to the case of Anthony Jeremia Sorya v. The Republic [2020] TZCA 294 to fortify her preposition that where there is a hot pursuit of the accused person (s), the issue of identification does not arise. 14

Responding on the credibility of PW1, Ms. Kayumbo supported the findings of the two lower courts that the witness was credible and reliable. She pointed out that PW1 was consistent and firm when responding to the appellant's cross examination and she even gave physical description of the appellant that he had one crippled leg and her evidence was supported by the appellant when he told the trial court that he had bowlegs. On this ground, the appellant re-joined that PW l's identification was questionable as she failed to give any description and wondered why PW1 did not raise an alarm. He therefore beseeched us to allow the appeal and set him free. Two issues arose from these grounds of appeal. One, whether the appellant was positively identified by the victim (PW1) and two, whether PW1 raised any alarm. As a matter of law, where visual identification of an accused person is the only vital factor in basing a conviction, courts have always been cautious on acting on it. This is due to the fact that it is the weakest evidence and inherently unreliable since even an honest and convincing identifying witness may as well be mistaken. In that respect, it has always been insisted that for the court to base conviction on visual 15

identification, it must be satisfied on the conditions and factors favouring positive identification to rule out any possibility of mistaken identity lest serious miscarriage of justice result therefrom. For instance, in the case of Waziri Amani v. The Republic (1980) T.L.R. 280, the Court stated that: "No court should act on evidence o f visual identification unless, a ll possibilities o f m istaken identity are elim inated and the Court is fu lly satisfied that the evidence is watertight. The follow ing factors have to be taken into consideration; the tim e the witness had the accused under observation; the distance a t which he observed him, the conditions in which such observation occurred fo r instance whether it was day or night (whether it was dark, if so, was there moon lig h t or hurricane lam p etc.) whether the witness knew or had seen the accused before or not . " See also: the cases of Raymond Francis v. The Republic [1991] T.L.R. 100 and Issa s/o Mgara @ Shuka v. The Republic, [2008] TZCA 112. In this appeal, it is undisputed fact that the alleged incident of rape took place during the day from around 06:00 hours up to 08:00 hours. This means that the conditions and factors for identification were 16

favourable and the identifying witness, PW1, had ample time to observe her assaulter, the appellant. Besides, as correctly submitted by the learned State Attorney, the appellant was at a zero distance with the victim for about ten minutes and that he conversed with PW1. In addition, immediately after the appellant had finished raping PW1, she followed the appellant up to his arrest at the local bar. The evidence of PW1 was further supported by PW2 who arrested the appellant and PW3 who transported the appellant to the police station, immediately after his arrest. Therefore, we entirely agree with Ms. Kayumbo that, the prevailing circumstances which led to the arrest of the appellant dispensed the requirement of identification of the appellant including the conduct of identification parade as we held in the case of Anthony Jeremia Sorya v. The Republic (supra). With regard to the complaint that PW1 did not raise an alarm, the record of appeal clearly established that the victim raised an alarm but the appellant strongly kicked her and threatened to kill her if she continued to raise the alarm. Therefore, it is not true that the victim remained mute while her efforts were in vain. Accordingly, we find this ground lacked merit and we dismiss it. Lastly, Ms. Kayumbo responded to the first ground in the supplementary of appeal that the appellant was delayed in arraignment. 17

She conceded that the appellant was delayed as he was arrested on 11th January, 2022 but arraigned on 1st February, 2022 after a lapse of about 20 days. Nonetheless, relying on the provisions of section 33 (1) of the CPA, she contended that the law requires for an accused person to be arraigned " as soon as p racticable but the CPA does not define what such phrase mean. To fortify her submission, she referred us to the case of Eliapenda Zephania Zakaria @ Kicheche v Republic [2024] TZCA 728 where the appellant in that appeal was delayed by thirty-one days and the Court held that the practicability depends on the circumstances of each case and that where the accused does not complain during hearing on his late arraignment the same should be taken as an afterthought. This ground of appeal raised two issues; namely, whether there was a delay in arraigning the appellant, and if the answer is yes, what was the consequences of such delay. As correctly submitted by Ms. Kayumbo, section 33 (1) of the CPA governs the arraignment of an accused person and it provides: "33. -(1 ) Where any person has been taken into custody w ithout a warrant fo r an offence other than an offence punishable with death\ the officer in charge o f the police station to which he is brought may, in any case, and sh all if it does 18

not appear practicable to bring him before an appropriate court within tw enty four hours after he was so taken into cu sto d yin q u ire into the case and, unless the offence appears to that officer to be o f a serious nature, release the person on h is executing a bond with o r w ithout sureties, fo r a reasonable am ount to appear before a court a t a tim e and place to be nam ed in the bond; but where he is retained in custody he s h a ll b e b ro u g h t b e fo re a c o u rt a s soon a s p ra ctica b le . "[Emphasis added]. In its numerous decisions, the Court considered the above provision of the law and noted that the law does not define the words "as soon as p ra cticab le as such each case must be considered according to its own peculiar circumstances. The ensuing question was what were the circumstances in the appeal at hand. We gathered from the record of appeal as rightly conceded by Ms. Kayumbo that the appellant was arrested on 11th January, 2022 but he was arraigned before the trial court on 1st February, 2022. There is no explanation or reason as to why the appellant was delayed by twenty days to be arraigned before the trial court. We are therefore satisfied that the appellant was delayed by twenty days in arraignment. 19

What are the consequences for such a delay. Delay in arraignment does not vitiate the trial and the resultant conviction and sentence -see the cases of Eliapenda Zephania Zakaria @ Kicheche v Republic (supra), Paulo Machandi v. The Republic [2022] TZCA 430 and Isaya Msofe v. The Republic [2022] TZCA 147. For instance, in the case of Eliapenda Zephania Zakaria @ Kicheche v. The Republic, the Court stated that: "...delay in arraigning the appellant in the instant case, did not vitiate the tria l and the resultant conviction. It is our considered view that, the com plaint o f delay in arraignm ent o f the appellant raised a t this stage, is m isplaced. We have no m aterial facts to deal with such a com plaint. The com plaint ought to have been raised before the tria l court which was in better position to investigate it ." In the same vein, we are inclined to Ms. Kayumbo's invitation that this complaint was an afterthought because throughout the proceedings the appellant did not raise it as an issue. Besides, the appellant's delay in arraignment did not vitiate the trial court's proceedings and its resultant conviction and sentence. We therefore find no merit on this ground of appeal and proceed to dismiss it. 20

In the upshot, we find no reason to interfere with concurrent findings of the two courts below. We are satisfied that the prosecution proved its case beyond reasonable doubt against the appellant. Accordingly, we find no merit in this appeal and proceed to dismiss it. DATED at ARUSHA this 16th day of October, 2025. B. M. A. SEHEL JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL The Judgment delivered this 16th day of October 2025 in the presence of the appellant in person, Mr. Philbert Msuya, learned State Attorney for the respondent/Republic and Mr. Musa Amry, Court Clerk; is hereby certified as a true copy of the original.