Mustafa Omary Nkwabi vs Republic (Criminal Appeal No. 85 of 2023) [2025] TZCA 1141 (15 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: GALEBA. J.A.. MGEYEKWA. 3.A. And MLACHA. J.A.^ 1 CRIMINAL APPEAL NO. 85 OF 2023 MUSTAFA OMARY NKWABI........................................................APPELLANT VERSUS THE REPUBLIC ....................................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Tabora) (Khamis 3 .^ dated the 7th day of October, 2022 in DC Criminal Appeal No. 28 of 2021 JUDGMENT OF THE COURT 3 d & 15th October, 2025 GALEBA, 3.A.: The appellant in this appeal, Mustapha Omary Nkwabi, was charged for rape of a 13-year-old girl, who for purposes of concealing her identity, will be referred to as the victim or PW2, in this judgment. His trial which ended up in a conviction and a sentence of thirty (30) years imprisonment, was conducted at the District Court of Nzega at Nzega (the trial court), in Criminal Case No. 11 of 2021. His first appeal to the High Court (the first appellate court), was dismissed, and not being satisfied with the latter decision, the appellant lodged this appeal to challenge it. l

The material facts that gave rise to the appellant's apprehension and consequent trial was that, on 29thJanuary, 2021 in the evening hours of the day, Theresia Andrea (PW1) also the victim's mother and a petty trader in food stuffs, while at her business outlet at Ndala area, sent the victim to deliver some cassava to her client called Mama Ally. Despite that the victim had been sent to deliver the cassava to Mama Ally, still the latter sent someone to PW1 to inquire about her cassava, meaning that the victim had not reached Mama Ally's place. Meanwhile, PW1 went home to get some money to give back change to her customers. On the way back from home, she met the appellant carrying beans. When she got back to her business stall, her daughter arrived from delivery of the cassava to Mama Ally. However, the victim was in a mood of bitterness and when PW1 asked her as to what had happened, she explained to her that the appellant had took her to his house and raped her. The report was made to Ndala Police Station, and based upon it, the appellant was subsequently apprehended and consequently tried. As indicated earlier on, the appellant was convicted and his appeal to the first appellate court failed. The appeal before us challenging the decision of the first appellate court, is based on two grounds of appeal after Mr. Mugaya Kaitila Mtaki, learned advocate for him, abandoned the initial memorandum of appeal, which had been lodged by the appellant,

and the first ground of appeal in the second memorandum of appeal he had lodged on behalf of the appellant on 28th March, 2023. The grounds upon which determination of this appeal is based, are the following: "1. That the learned Judge erred in law in holding that PW2 was a credible witness before the trial District Court. 2. That on the totality o f the evidence on record, the learned Judge erred in law in holding that the prosecution had proved the guilt o f the appellant beyond reasonable doubt " As indicated above, at the hearing of the appeal, the appellant was represented by Mr. Mtaki, whereas the respondent Republic was enjoying the services of Ms. Upendo Florian and Ms. Anneth Makunja, both learned State Attorneys. Mr. Mtaki submitted at length on the first ground of appeal challenging the evidence of PW2 in seeking to convince the Court that PW2 was not a credible witness. In reply to that ground of appeal, Ms. Florian put up an objection against it because it raised a completely new complaint, whose substance was never a subject of discussion before the first appellate court. The learned State Attorney relied on the provisions of sections 6 (1) and 9 (7) (a) both of the Appellate Jurisdiction Act, (the AJA). According to those sections, she submitted, this Court can only hear 3

appeals from the High Court and subordinate courts exercising extended jurisdiction; and that for matters under Part X of the Criminal Procedure Act, (the CPA), this Court is mandated to entertain matters of law only and not complaints based on facts. Her view of the first ground of appeal above was that the complaint raised a matter of fact which the first appellate court did not have an opportunity to consider and make a decision on. The learned State Attorney too, referred us to this Court's decision in Sebo @ Kea Hamza v. R, Criminal Appeal No. 292921 of 2023 (unreported). Her point was that, this Court has no jurisdiction to decide on a point which was not first discussed and decided upon in the court from which the appeal is preferred. In reply, Mr. Mtaki contended that, where there are misapprehensions or non-directions on the evidence, the point becomes a point of law, and referred to the case of Hamid Sangwa v. R, Criminal Appeal No. 17 of 2022 (unreported). In the first place, we agree with Ms. Florian, on one hand that a point of fact not raised and determined before a court from which an appeal originates, cannot be legally entertained by the Court. On the other hand, we also agree with Mr. Mtaki that misapprehension or non-direction on the evidence culminating into a miscarriage of justice, is a point of law warranting this Court to entertain it even if it was not discussed in the 4

High Court. The issue before us is whether the complaint in the first ground of appeal is a complaint on the misapprehension or a misdirection on the evidence by the first appellate court. Having considered the submissions of learned counsel, and after a keen study and reflection of what actually is the complaint in the above first ground of appeal, it is crystal clear that the complaint in that ground is not at all that there was a misapprehension or a misdirection on the evidence of any witness by the first appellate court. The ground of appeal is challenging the credibility of PW2. It is not challenging the court for misapprehending her evidence. Had the latter been the case, under rule 72 (2) of the Tanzania Court of Appeal Rules, 2009, the appellant would have specified its complaint as misapprehension of the evidence in the memorandum of appeal as a specific grievance or ground of appeal. In fact, there is no ground of appeal complaining about any misapprehension or non-direction on any evidence in the memorandum of appeal before this Court. Therefore, in our view, the complaint that PW2 was not a credible witness, and a complaint that there were misapprehension or non-direction on the evidence, are completely different complaints, one is the first ground of appeal and another was not raised in the memorandum of appeal. 5

Thus, we agree with Ms. Florian that, the ground complaining about the credibility of PW2 was not raised at the High Court, while under the provisions of article 117 (3) of the Constitution of the United Republic of Tanzania, 1977 read together with section 6 (1) of the ADA, this Court can only entertain appeals complaining about matters which have first been raised before and considered by either the High Court or the Court of a Resident Magistrate when exercising extended jurisdiction. For those reasons, we agree with Ms. Florian that this Court has no jurisdiction to entertain the first ground of appeal above. The remedy is to refrain from determining the substance of that ground of appeal, which we hereby do, and which marks the end of any discussion about it. Next is the second and last ground of appeal, in which the appellant's complaint was that considering the totality of the prosecution evidence, the case against him was not proved beyond reasonable doubt. In supporting this ground of appeal, Mr. Mtaki submitted that, upon learning that her daughter was raped, PW1 was supposed to go to Mama Ally instead of going straight to the police. The learned counsel contended further that the person who arrested the appellant and the manner of arresting him is not on record. The police officer who arrested him was a material witness but was not called to give evidence on the offence for which he or she arrested the appellant. The learned advocate submitted 6

that, although the appellant stated that the case was framed against him because PW1 was indebted to him of his TZS. 50,000.00, no court considered this defence. The learned advocate submitted that the prosecution evidence was too inconsistent to found any lawful conviction. In reply, Ms. Florian contended that inconsistencies, if any were minor. The issue of referring Mama Ally as Mama Bahati by PW4 is a minor matter and the police officer who arrested the appellant was not a material witness since the appellant does not dispute the fact that he was arrested. To the learned State Attorney, PW1 had no reason to go to Mama Ally before going to the Police, the said person was neither a police officer, nor was she a local leader. The issue before us, is whether the case against the appellant was proved beyond reasonable doubt. The evidence upon which the trial court relied upon to convict the appellant was that of PW2 as a victim of the offence and her mother PW1 as the person who accompanied the victim to various places like the police station and later to hospital. We will closely examine the evidence of these witnesses and see whether there was any of its misapprehension. We will also state whether the evidence of the appellant that of Maua Shaban Adam, DW2 raised doubt or shook the evidence of the prosecution. 7

The appropriate point to start from is to consider the evidence of PW2, the victim. The relevant substance of the evidence quoted below is recorded at page 10 of the record, and it goes: "On 29/1/2021 on Friday I was taking cassava to mama Ally. My mother gave me that cassava to take it to mama Ally. It was a cassava that [ was] worth 500/=. On the way, I saw Mzee Nkwabi who was at his farm, harvesting beans. He called me and [told me to move his bag o f beans]. I moved it and he [caught] me and [covered] my mouth. He pulled me to the room he left, and [undressed] my gown, he also [undressed] his black [pair o f trousers]. He also [wore] a white t-shirt. He wore under wear too. I also wore under pant. He slept on top o f me. He raped me. He penetrated his penis to my vagina. He produced water from his penis. The water remained at my hips and other went down. Upon seeing that I tried to hit his hand to remove his penis that he penetrated me. He warned me not to tell anybody. I f I do so, he will be [beating] me up when she meets me on the way. Therefore, I took cassava to Mama Ally. Later on, I returned back to my mother. When I arrived there, my mother noticed the signs o f crying . " [Emphasis added]

PW1, who is the victim's mother, at page 5 to 6 of the record of appeal, this is what she said: "On 29/1/2021 during evening hours I was at my business area [at] Ndala. I was with PW2 preparing cassava for my clients and rice for vitumbua. I sent PW2 to take cassava to my client called Mama Ally or Mama Scraper. From my business to Mama Ally is just nearby. When you are going there you pass at my home and go to Mama Ally. When she took that cassava there, she came late almost 30 - 45 minutes. Mama Ally sent a child to ask me about cassava and I told him that I sent PW2 to take it there. I went home to [collect] my money so that I can return balance to my clients. Then I returned to my business hut When I was coming out o f my house, I met the accused at the door carrying beans . I stayed at the food hut for a short while and my daughter arrived I saw her with signs o f crying ..... " [Emphasis added] Before getting to the analysis of the above evidence, we wish to make one remark we consider significant in rape cases like the one under consideration. The majority of offences against morality covered in Chapter XV of the Penal Code, rape included, carry any punishment

ranging from thirty (30) years to life imprisonment. Thirty (30) years, which is said to be the minimum for such offences, is in fact a long time. That is the reason we wish to observe that, courts trying those offences, need to have at the back of their mind, and be sensitive to that reality of life, and strive by all means to ensure that the quality, the credibility and the weight of the prosecution evidence necessary to reach the level of conviction must be raised, such that it can match and correspond to long jail terms prescribed for the offences. Tolerance of contradictions between witnesses and incoherencies defeating logic in evidence, particularly of victims need to be minimized. Thus, it is extremely essential that evidence in rape cases must be adding up with high standards of precision and purity admitting no chances of error, gaps or speculation, that the suspect actually raped the victim. The completeness of proof and the satisfaction to the court must be beyond reproach. We will then turn our attention to the evidence of the victim and that of PW1. The evidence poses several unreconcilable factual scenarios; one, if the appellant was at his farm harvesting crops, why is it that there is no distance coverage in the evidence, between the farm and the room in which PW2 was alleged to have been raped. In this case, it is like the alleged room to which the appellant was allegedly pulled the victim to, is also in the farm. This quagmire would have been sorted if the prosecution 10

would have tendered a sketch map of the scene of crime, otherwise it is a confusion which can only be sorted out by speculation. Two, if the farm was of beans and in the open and along the way during daytime, not night, how was it possible for the appellant to capture the victim, cover her mouth and drag her from the farm to his home without any fear of being spotted by passers-by. Three, at what point in time was the victim raped? When the rape happened is not clear at all. According to PW1, the mother, after the victim stayed for a relatively long time without coming back from Mama Ally's place, she went home to collect money for giving customers change, which home is in the same compound as the appellant's room. She collected the money and on her way back to her business, she met the appellant with harvested beans coming from his farm. The question that arises here is this; at this time, had the victim been raped? If so, at which place was she raped because at this time, is when the appellant was coming from the farm. The situation is blurred to complete obscurity by the fact that, as soon as PW1 got to her business stall, (a while after meeting the appellant carrying beans), the victim appeared in a state suggesting sorrow. The difficult question is; was the victim raped after PW1 left her home? In our view, not likely, because before she was raped, she found the appellant in the farm and he drag her to his room according 11

to her narrative. So, when was the victim raped then? This question was supposed to be clear from the evidence. Unfortunately, every attempt to formulate a logical scenario to ascertain the exact time that the victim was raped, the mother's story of meeting the appellant from the farm, pops up and destroys every rational reasoning. On the issue that the PW1 did not report the incident to DW2, the first appellate court dismissed the point because it is not a legal requirement to report a criminal offence to local leaders before reporting to the police. The court was right, but the circumstances of this case suggest that the presence of the hostilities might have been a factor repelling her from reporting the rape to DW2, because much as it was not the requirement of the law to report him there, it was equally not illegal to do so. Further, there was no useful cross examination which shook DW l or DW2 on the existence of the hostility raised as a defence. Briefly, had the two lower courts addressed themselves to the above mismatches objectively, they would not have found that the prosecution proved the case beyond reasonable doubt against the appellant. In the final analysis, this appeal succeeds. The appellant's conviction is nullified and his sentence of thirty (30) years imprisonment is set aside. The judgement of the first appellate court confirming the appellant's 12

conviction is quashed. In the end, we order the appellant's immediate release from prison, unless he is held there for any other lawful cause. DATED at TABORA, the 14th day of October, 2025. Z. N. GALEBA JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 15th day of October, 2025 in the presence of appellant, virtually, in person and unrepresented, Ms. Suzan Barnabas, learned State Attorney for the Respondent/Republic and Ms. Janekisa Bukuku, Court Clerk, is hereby certified as a true copy of the J. E. FOVO DEPUTY REGISTRAR COURT OF APPEAL 13