Sospeter Philipo @ Chiga vs Republic (Criminal Appeal No. 893 of 2023) [2025] TZCA 1099 (13 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: KOROSSO, J.A., KENTE. 3.A., And KHAMIS J.A.) CRIMINAL APPEAL NO. 893 OF 2023 SOSPETER PHILIPO @ CHIGA ............................................... APPELLANT VERSUS THE REPUBLIC ....................................................................RESPONDENT (Appeal from the decision of the Resident Magistrate's Court of Mwanza at Mwanza) (Shao, PRM with Extended Jurisdiction) Dated the 06th day of July, 2023 in RM Criminal Appeal No. 21 of 2023 JUDGMENT OF THE COURT 03rd & 13th October, 2025 KOROSSO, JA.: The appellant, Sospeter Philipho @ Chiga was arraigned in the District Court of Sengerema at Sengerema and charged with rape, contrary to sections 130 (l)(2)(e) and 131(1) of the Penal Code, Cap 16 (the Penal Code). That on 01/2/2022 at about 13.00 hours at Ngoma village, Sengerema District in Mwanza Region, the appellant did have sexual intercourse with a girl of 13 years of age, a standard VI pupil at Ngoma Primary School, who shall henceforth be referred to as the "victim" or "PW1" to hide her identity.

The appellant pleaded not "guilty" to the charge, and following the denial of the charge, the prosecution side paraded five witnesses, namely, the victim (PW1); Deogratius Magambo, the victim's father (PW2); Zainabu Maliatabu, the victim's mother (PW3); Hadija Omary, Medical doctor (PW4) and WP 11136 D/C Alice, a police officer (PW5). In addition, two exhibits were tendered and admitted into evidence, the clinic card (exhibit PI) and PF3 as exhibit P2. The contextual setting giving rise to the present appeal can be condensed as follows: The appellant and the victim are neighbours. On 01/02/2022 at around 13.00 hours, the victim was at home and the appellant came there, took her hand and led her to a bathroom nearby belonging to her grandmother, also a neighbour, with a promise to give her 2000/-. Upon entering the said bathroom, the appellant closed the door, unzipped his trousers and took out his male genitalia. Thereafter, he undressed her, removing her tights and upon separating her legs, he had his way with her. The coition went on for five minutes and then the voice of the appellant's wife was heard from outside shouting, "Humu kuna nin/7" Meaning "whatis happening in there". The appellant's reply was "nina kojoa "translated "Iam peeing". It was then that the appellant got out of the bathroom followed by

the victim. The appellant's wife questioned the victim on what she was doing in the bathroom who replied that the appellant had raped her. The appellant's wife reacted by slapping and tearing the victim's tights. The victim went back home, which was nearby. Back home, despite seeing blood in her genitalia, she did not disclose the incident to anyone. On 4/02/2022, the victim informed her parents (PW2 and PW3) that she was raped by the appellant, who then took her to the police station to report the incident. Thereafter, with a PF3 in their hands, they went to Kagunga Health Centre, where the victim was examined by PW4. The medical examination revealed that the victim's genitalia had been penetrated by a blunt object. The appellant was arrested and charged as stated earlier. At the trial, the appellant's defence was that the allegations of rape against him were plotted by his wife, after her affair with another man came to light and affronted, she promised to make the appellant suffer. After a full trial, satisfied that the prosecution proved the offence charged beyond reasonable doubt, the trial court convicted and sentenced the appellant to thirty (30) years imprisonment. The appellant was dissatisfied, however, his appeal to the High Court, transferred and determined by a Principal Resident Magistrate with extended jurisdiction (Shao, PRM with Extended Jurisdiction)

was unsuccessful. Still aggrieved, he is now before the Court armed with three memoranda of appeal fronting 14 grounds in total. The seven grounds in the memorandum of appeal filed on 11/01/2024 fault the first appellate court essentially on three complaints: one, relying on contradictory and inconsistent evidence of PW1, including delaying reporting the incident which questions her credibility. Two, failure to draw adverse inference on failure of the prosecution side to call the appellant's wife as a witness; and three, failure of the prosecution side to prove the case beyond reasonable doubt. The supplementary memorandum of appeal filed on 08/5/2025 fronted two grounds premised on one grievance about inconsistency in the testimony of PW1 that rendered her evidence to be untruthful. The complaints drawn from the supplementary memorandum of appeal filed on 3/10/2025 are: one, relying on the documentary evidence exhibit PI which was improperly admitted. Two, disregarding non- compliance with section 127(2) of the Evidence Act, Cap 6 (the Evidence Act) in recording the evidence of PW1. Three, failure to consider

inconsistencies and contradictions in the evidence of PW1, and four, failure of the prosecution to prove the offence charged to the standard required. When the appeal came before the Court for hearing, the appellant who appeared in person, was unrepresented. Ms. Helen Chuma, learned Senior State Attorney, entered appearance for the respondent Republic assisted by Ms. Neema Kibodya, learned State Attorney. When he was afforded leave to explain his grounds of appeal, the appellant prayed for the learned State Attorneys to first respond to the appeal, and he rejoin, thereafter. Ms. Chuma commenced by expressing her objection to the appeal, contending that it is unmerited. She started by responding to the complaints in the supplementary memorandum of appeal filed on 3/10/2025. Responding to issues found in complaint one, which challenged noncompliance of section 127(2) of the Evidence Act and veracity of the evidence of PW1, she argued that they were unfounded as the record of appeal shows otherwise. She contended that page 8 of the record of appeal shows that PW1 promised to speak the truth without requirement to give evidence on oath, which is what is required for evidence of a child of tender

age as stipulated in section 127(2) of the Evidence Act read together with section 135(2) of the Evidence Act. She thus argued that the two provisions were fully complied with, rendering her evidence credible and reliable. Regarding complaint number three which queried the inconsistencies and contradictions in the evidence of PW1, particularly the delay in reporting the incident, the learned Senior State Attorney argued that, while it is true that there was a three days delay to report the incident from 1/2/2022 to 4/2/2022, considering the surrounding circumstances, particularly, the tender age of the victim (13 years), the threats from the appellant having told her not to report the incident, the delay to inform her parents is understandable. In addition, the assault from the wife of the appellant undoubtedly added fear to the victim hence the delay, argued Ms. Chuma. She implored us to find the complaint to lack merit. On the complaint that exhibit PI was not read aloud in court, the learned Senior State Attorney blushed this off stating that revisiting page 5 of the record of appeal shows it was read aloud and thus the complaint is misguided and should be dismissed. The complaint on not being accorded his rights to plead after the charge was amended and the preliminary hearing proceeded, Ms. Chuma submitted that, though it is true that the charge was 6

amended, thereafter, the amended charge was read over and explained to the appellant in Swahili language and he was asked to plead, and he pleaded "not guilty", which the trial court entered and recorded accordingly. Therefore, the complaint is unjustified. Confronting the grievance found in the supplementary memorandum of appeal filed on 8/5/2025 on contradictions and inconsistencies in the evidence of PW1, mostly on what transpired in the bathroom and immediately thereafter, the learned Senior State Attorney maintained that the evidence of PW1 was a narration of what transpired and the fact that it was the appellant who took her from where she was at home, to a bathroom, undressed himself and then her, and then inserted his male organ into her genitalia, and threatened her if she will disclose the incident. She insisted that PWl's evidence was direct without hesitance and consistent even when she was cross-examined by the appellant. According to her, PW1 evidence is corroborated by the evidence of PW2 and PW3 on who was the perpetrator of the atrocious act, the appellant. On the issue of failure of the victim to raise an alarm, and how the act was done, Ms. Chuma, submitted that PW1 adduced that, while in the bathroom the appellant parted her legs which enabled him to insert his male

organ into her private parts and that bearing the obtaining circumstances; her young age, her fear, the victim should not be censured for not raising any alarm, since the record revealed that, when a chance occurred, she blurted the incident to the appellant's wife. The learned Senior State Attorney invited us to find PW1 was a witness of truth with demeanor which cannot be questioned having maintained her composure throughout her testimony leading the court to find her of good demeanor and ended relying on her evidence. She thus urged us to find the appellant's complaints without substance. The learned State Attorney then moved to address the grievance on failure of the prosecution to prove the offence charged, which she contended required three ingredients to be proved; age of the victim, penetration and that the appellant was the perpetrator. On the age, she argued that the evidence of PW3, left no doubts on this, as she testified that the victim was 13 years old, born on 9/15/2008 and augured this testimony with the clinic card, exhibit PI. To reinforce her contention, she cited Iddi Omary v. Republic, Criminal Appeal No 408 of 2021 [2023] TZCA 17699 (03 October 2023) TANZLII and Ado Aron @Nziku v. Republic, Criminal Appeal No. 449 of 2021 [2024] TZCA 220 (22 March 2024) TANZLII.

On proof of penetration, the learned Senior State Attorney moved us to visit page 8 of the record of appeal where PW1 narrated how the appellant raped her, evidence which was corroborated by PW4, whose medical findings were that, there was evidence of the victim's genitalia having been penetrated by a blunt object, she argued. Furthermore, Ms. Chuma asserted that there was sufficient evidence to prove that the appellant is the perpetrator, the one who committed the offence as narrated by PW1. She contended that, the fact that PW1 later informed PW2 and PW3, that she was raped by the appellant, and the two witnesses adduced this fact in the trial court, gives strength to this fact. The learned Senior State Attorney also touched on the absence of the appellant's wife to testify as a witness, and argued that, she was not important, as she was not the one who could prove any of the ingredients of the offence charged against the appellant, and therefore, her absence was not detrimental to the prosecution case. She added that, nevertheless, as a wife of the appellant though a competent witness, she was not compellable to testify against her husband, the appellant, under section 130(1) of the Evidence Act. She concluded, beseeching us to find all the complaints unmerited and dismiss the appeal.

The rejoinder by the appellant was understandably brief, being a lay person. He reiterated his prayer for us to consider his grounds of appeal, allow his appeal and in the process set him at liberty. We have considered the submissions by the appellant and the learned State Attorneys. We firmly believe that the grounds of appeal found in the three memoranda of appeal filed by the appellants give rise to the following issues: First, whether there was noncompliance of section 127(2) of the Evidence Act; and Second, whether the offence charged against the appellant was proven beyond reasonable doubt. In the process of determination of the identified issues, we shall also address the credibility of the evidence of the victim. Conversely, when deliberating the above issues, we shall consider the guiding principle that as a second appellate court, it can only interfere with concurrent findings of facts by the trial and first appellate courts when satisfied that there has been misapprehension of the facts of the case (see, Director of Public Prosecution v. Jaffar Mfaume Kawawa [1981] T.L.R. 149 and Joseph Yombo @Mahema v. Republic, Criminal Appeal No. 448 of 2016) [2020] TZCA 22 (25 February 2020) TANZLII). 10

On the complaint of non-compliance with section 127(2) of the Evidence Act, upon revisiting the evidence, the first appellate court upheld the findings of the trial court that the victim had promised to tell the truth and not lies and being a child of tender age, her evidence can be taken without oath under section 127(2) of the Evidence Act. At page 69 of the record of appeal it stated: ”... since the records o f the trial court are very dear that the victim (PW1) promised to the court to tell the truth and not lies, hence the third issue is dismissed for being devoid o f merits." We have also taken time to go through the record of appeal, and at page 8 of the record of appeal, the trial court recorded that the victim was asked on the meaning of oath which she said, she does not know. Then she told the told the trial court that she knew the meaning of speaking the truth and promised to tell the truth, not lies. Thereafter, the trial court made a finding that PWl's capacity to understand the nature of an oath was not to the standard required, however, that her promise to tell the truth and not tell lies before the court was fulfilment of section 127(2) of the Evidence Act, and thus proceeded to record her evidence. l i

We agree with the learned Senior State Attorney that, having regard to what is recorded to have transpired in the trial court as alluded to above, both the trial and the first appellate court cannot be faulted for finding that section 127(2) of the Evidence Act was complied with. PW1 clearly promised to tell the truth, and the trial court recorded a verdict of its finding before allowing her to testify without oath, well within the confines of section 127(2) of the Evidence Act. The complaint is thus unmerited. Suffice it to say that, it is a general principle of law that in criminal cases, the burden of proof lies with the prosecution to prove the offence charged against the accused person beyond reasonable doubt. In the instance case, for the conviction meted against the appellant in the trial court and upheld in the first appellate court to stand against the offence charged, the essential ingredients required to be proved are; age of the victim, penetration of a male organ into the victim's genitalia and that it is the appellant who perpetrated the rape of the victim. The above ingredients for the offence charged against the appellant have been elaborated in numerous cases including, Baraka Mashaka v. Republic (Criminal Appeal No. 641 of 2020) [2024] TZCA 788 (20 August 2024), TANZLII. 12

In the instant appeal, about the age of the victim, the evidence of PW3, the victim's mother, plainly stated that the victim was 13 years old at the time of trial having been born on 9/12/2008 as shown at page 14 of the record of appeal. We are thus in tandem with the findings of the trial and first appellate court that the age of the victim was proven. Addressing the issue of penetration, we find nothing to move us to depart from the findings of both the trial and first appellate courts that this aspect was proved. Both courts relied on the evidence of PW1 finding her to be a credible witness relying on the decision of this Court in Selemani Makumba v. Republic, [2006] T.L.R. 373. The two lower courts found the evidence of PW1 on being raped on the material day, corroborated through the evidence of PW4, the doctor who examined her and stated: "... I examined her by looking into her vagina where I discovered that, there waspenetration. Two fingers were able to penetrate into her vagina and no hymen found which prove penetration." Having scrutinized the evidence on record, we agree with the findings of both the trial and first appellate courts, that penetration was proven. Therefore, the complaint falls. 13

The last ingredient in proving the offence charged is whether it is the appellant who was the perpetrator. In determining this evidence, it is also essential to consider the credibility of witnesses who testified to prove this fact. In the circumstances of this case and in the interest of justice, we firmly believe that assessing the credibility of PWl's evidence is crucial. It is settled that credibility of a witness is subject to the tests of demeanor, coherence and consistency of such testimony on one hand as it weighed against the testimony of other witnesses on particular facts. We are alive to the settled principle that, every witness is entitled to credence, and the court is expected to believe his evidence as a credible witness as stated in the case of Goodluck Kyando v. Republic, [2006] TLR 363. The other settled principle which guide us in our deliberation is that credibility of a witness by demeanour is the exclusive province of the trial court as held in numerous decisions of this Court. In Shaban Daudi v. Republic, Criminal Appeal No. 28 of 2000 (unreported), it was held:- "... Credibility o f a witness is the monopoly o f the trial court but only in so far as demeanour is concerned. The credibility of a witness can also be determined in two other ways: One, when assessing tiie coherence of the testimony o f that witness. Two, 14

when the testimony of that witness is considered in relation with the evidence o f other witnesses including that o f the accused person. In those two other circumstances the credibility o f a witness can be determined even by a second appellate court when examining the findings o f the first appellate court..." The above position has been reiterated in various decisions of the Court. In the case of Kija Nestory @ Jinyamu v. Republic, Criminal Appeal No. 455 of 2007, we had this to say: " The law is settled. The trial court findings on the credibility o f witnesses is binding in an appeal court unless there are circumstances on record which call for re-assessment o f the credibility." The import of the above decisions is that notwithstanding the fact that the trial court has the exclusive domain in determining the credibility of the demeanour of a witness, appellate courts may determine the same upon assessing the consistency or coherence of the witness' own evidence or how it relates with other material witnesses including the accused. 15

In the instant appeal, both the trial and first appellate courts found PW1 to be a credible witness and proceeded to rely on her evidence wholesale. However, upon careful examination of the evidence on record, we have gathered some crucial inconsistencies and unexplained elements in her testimony to dent the prosecution case against the appellant. One, acknowledging her tender age of thirteen years, it is questionable why she failed to report the alleged rape by the appellant to her parents on the day of the incident. PW1 testified that after the incident on reaching home on 1/2/2022, despite seeing blood from her genitalia she remained silent until 4/2/2022 when she told PW3. This is more surprising because her testimony shows that immediately on getting out from the bathroom- the crime scene- she reported the incident to the appellant's wife. Who unfortunately was neither called to testify or at least be seen to have refrained from testifying in view of section 130(1) of the Evidence Act, on spousal privilege. Two, PW1 evidence did not reveal that she was threatened by the appellant. At page 9 of the record of appeal she is recorded to have testified that, "Sospeter told me not to tell my parent." In all colours, this cannot be said to be a threat, since there is nothing to show that the appellant threatened her with anything if she did not comply with his directives. In the 16

same vein, no reasons were given for why she decided to tell her mother regarding the incident on the third day. Three, her behaviour after the said incident and her failure to explain why she failed to disclose the rape to anyone for three days, leaves a gap in evidence. In the absence of any explanation, it gives weight to the explanation provided by the appellant in his defence, on what might have transpired, in that, his wife plotted with the victim and family leading to his arrest and the charged offence he faces. Therefore, flowing from the above, we are of the view that the anomalies discerned in the evidence of PW1 leave us no option but to doubt the veracity of the evidence of PW1, particularly, in naming the appellant as the one who perpetrated the offence against her. We firmly believe that, with due respect, had the trial and first appellate courts carefully considered the gaps in the evidence of PW1, the verdict would not have been the same. We thus hold that this ground has merit. For the foregoing, we are of the view that the evidence that links the appellant as the perpetrator has a lot of gaps, leaving doubts which should benefit the appellant and render the offence charged unproven to the standard requirement of the law. 17

In the end, we thus allow the appeal, quash the conviction, set aside the sentence imposed, and order the appellant be released forthwith from custody unless he is otherwise lawfully held. DATED at MWANZA this 13th day of October, 2025. W. B. KOROSSO JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Judgment delivered this 13thday of October, 2025 in the presence of the Appellant in person, Mr. Mahembega Elias Mtiro, learned State Attorney for the Respondent/Republic, connected virtually and Miss Harida Hamisi, the Court Clerk; is hereby certified as a true copy of the original.