Seif Nyangasi vs Republic (Criminal Appeal No. 660 of 2024) [2025] TZCA 1056 (10 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA (CORAM: NDIKA, 3.A.. KIHWELO, 3.A. And_NGWEMBE< L J_.A.) CRIMINAL APPEAL NO. 660 OF 2024 SfcIF NYANGASI............................... . .................■ ■ ■ ............................... APPELLANT VERSUS THE REPUBLIC.......................................................................* .........RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dodoma) fLonqppa, 3/1 dated the 13th day of March, 2024 in DC Criminal Appeal No. 73 of 2023 JUDGMENT OF THE COURT 1st & 10th October, 2025 KIHWELO. 3.A.: This is the second appeal by the appellant, Seif Nyangasi who is behind bars serving a sentence of life imprisonment His attempt to overturn a thirty year prison term before the High Court and therefore get himself off the hook turned sour, because the High Court apart from dismissing his appeal, went ahead in exercise of its revisional powers under section 373 (a) of the Criminal Procedure Act, Cap 20 R.E. 2002, (the CPA) now section 387 (1) (a) of the R.E 2023 and set aside the thirty year prison term imposed by the trial court and substituted it with a sentence of life imprisonment in terms of section 154 (2) of the Penal Code Cap i6 (the

Penal Code). Believing that justice was not served by the High Court, he has come before the Court. Briefly, the prosecution case which was believed by the trial court points a picture that, on the 5lh March, 2023 at Ujasiliamali area, in Manyoni Township within Singida Region during morning hours XY (PW1) a boy aged 9 years of age, who we shall refer to, as the victim in order to conceal his identity, was playing with his sibling one Sule while their mother had gone to fetch water. A little bit later, the appellant who is the stepfather of the victim appeared and lured the victim which escalated to his being sodomized by the appellant. Subsequently, the victim reported the matter to his mother on her return, and the sordid sexual abuse saga was relayed to Naomi Leonard (PW2), the ten-cell leader of that area who politely elected to inquire further the victim privately in order to establish what befell on him. The victim graphically described in minute detail to PW2 how the appellant committed that heinous act to him and PW2 took the victim to the police officer one Dishoni who pressed the victim to tell the truth and the victim repeated the same story that he was sodomized by the appellant. The police officer was compelled to physically examine the victim and confirmed that he was sodomized.

According to PW2, immediately after the police physically examined the victim and confirmed that he was sodomized, they went straight after the appellant who was arrested at home and both of them along with the mother of the victim were taken to Manyoni Police Station where the appellant was booked and the victim was referred to Manyoni District Hospital in order to be medically examined. At the hospital, the victim was medically examined by Dr. Noel Peter (PW3), a medical practitioner who conducted both physical and laboratory examination and the results were that, the anal sphincter muscles were found to be loose which is quite abnormal and it was observed to be the result of a blunt object penetration. It was observed further that, there were neither semen nor bruises found and the victim had no any venereal diseases. Ultimately, PW3 posted the results in Police Form No. 3, PF3 which was produced in court and admitted as exhibit PI. Police No. F. 7751 Detective Corporal Pascal (PW4), from Manyoni Police Station, Investigation Department recorded the cautioned statement of the appellant which was later tendered in court and admitted without objection and marked as exhibit P2. The appellant, in his own confession admitted to have sodomized the victim on the fateful day. He further revealed that, he repeatedly sodomized the victim in the previous days

more specially at night hours when everyone else was fast asleep. When all was done, on 6th March, 2023 the appellant was apprehended before the trial court where the charge of unnatural offence contrary to section 154 (1) (a) and (2) of the Penal Code was laid at his doorstep. In defence, the appellant disassociated himself from the charges leveled against him and maintained his innocence. In his sworn testimony he explained how on 5th March, 2023 he was arrested by a police officer Dishoni who at first took him to the ten-cell leader (PW2) and later he was booked by the police at Manyoni Police Station on allegations of sodomizing the victim. In his further testimony, the victim, PW2 and his wife took the victim to hospital but he spent the whole night at the police lock up and the following day, PW4 recorded his cautioned statement and that he denied any involvement in the charges he was accused of but was tortured to confess. He was finally brought before the trial court to answer the charges on 7th March, 2023. The learned trial Resident Magistrate after considering the evidence placed before him, was impressed by the prosecution and found that the case against the appellant was proved to the hilt. On 19th May, 2023 the appellant, was therefore convicted as charged and accordingly he was * 4

sentenced to thirty years prison term. His attempt to challenge the finding and sentence of the trial court proved futile as intimated earlier on. We heard the parties in this appeal on 1st October, 2025 and the appellant appeared in person, with no legal representation. On the adversary side, Ms. Elizabeth Barabara, learned Senior State Attorney assisted by Mr. Nehemia Kilimuhana, learned State Attorney appeared for the respondent Republic. Upon being invited to address us on the grounds of appeal, the appellant quite understandably, opted to let the respondent Republic argue the appeal in reply, while reserving his right of rejoinder, if need would arise. Mr. Kilimuhana, hinted that the respondent Republic was opposing the appeal and therefore, they were supporting both the conviction and sentence. He further submitted that, out of the thirteen grounds of grievance lodged by the appellant, grounds seven and eight were new and factual and therefore, they cannot be entertained by the Court. He paid homage to the case of Mwarabu Sugweja @Kihena v. Republic [2025] TZCA 313 in support of his proposition. 5

Indeed, the position of the law is settled and clear that, as a matter of general principle this Court will only look into matters which came up in the lower courts and were decided, not on matters which were neither raised nor decided by the trial court and the High Court on appeal. There is a considerable body of case law on this aspect. See, for instance, Abdul Athuman v. Republic [2004] T.L.R. 151, Hassan Bundala @ Swaga v. Republic [2015] TZCA 261 TANZLII and Emmanuel Josephat v. Republic [2018] TZCA 207 TANZLII. The above restated principle of law is grounded on the provision of section 6 (1) of the Appellate jurisdiction Act, Cap 141 R.E 2023, where this Court derives its mandate to determine appeals. Since the seventh and eighth grounds are new and factual and because they did not feature at the first appellate court, and since the first appellate court did not make any finding on them, this Court lacks the requisite jurisdiction to entertain them and therefore, we desist to determine. Addressing us in response to the second and fourth grounds of appeal, whose complaint is on failure to comply with section 9 (3) of the CPA, now section 10 (3) of the CPA R.E. 2023, the learned State Attorney commendably conceded that this complaint has merit as record is silent on whether the appellant was supplied with the complainant's statement

However, he was of the view that the omission was not prejudicial to the appellant and is curable under section 388 of the CPA, now section 411 of the R.E. 2023. Arguing further on this point, the learned State Attorney contended that, the appellant ably followed when testimonies of the prosecution's witnesses were being presented in court and had opportunity to cross examine them and, at the end he was able to mount his defence. Reliance was paid in the case of Rashid 3uma Kimolo v. Republic [2025] TZCA 242 TANZLII. Indeed, the accused's right to be furnished with the information or statement of the complainant in terms of section 10 (3) of the CPA R.E. 2023 is a requirement of fair trial. Nonetheless, failure to comply with that provision is not fata! unless it is demonstrated that, that failure occasioned injustice to the appellant In the case before us, we are at one with the learned State Attorney that the omission did not occasion any failure of justice, we shall explain, The appellant understood the charge, he was present when all the prosecution's witnesses came to testify, he was accorded the right to cross examined them and ably presented his defence at the end of the trial as evidenced at pages 24 and 25 of the record of proceedings. In the circumstances above, failure to be furnished with the information or

statement of the accused was not prejudicial to occasion any miscarriage of justice. We held this position in the case of Abdallah Seif v. Republic [2022] TZCA 196 TANZLII and Elirehema Mjema v. Republic [2025] TZCA 359 TANZLII and several others. We find these grounds to have no merit. On the fifth and eleventh grounds of appeal, the appellant essentially complains about the failure by the prosecution to call what to him appears to be prosecution material witnesses, in particular the victim's mother as well as the victim's sibling. He invited us to draw an adverse inference against the prosecution. Conversely, Mr. Kilimuhana admitted that, the mother of the victim and one Sule, the sibling of the victim did not testify but these were not material witnesses for the prosecution. Arguing further he contended that, the mother of the victim was just informed like PW2 the ten-cell leader, hence her evidence would have been hearsay and considering that she did not examine the victim herself after the incident. Equally, the victim's sibling one Sule was not material witness to the prosecution. He referred us to our earlier decision in Samweli Dominicus Mbugi @Momo!e v. Republic [2025] TZCA 221 TANZLII. It bears reaffirming that, in terms of section 152 of the Evidence Act, Cap 6 R.E. 2023, it is not the number of witnesses a party calls which is

relevant, but the credibility of the evidence of the witnesses called to testify. Time without number we have pronounced ourselves on this. See, for instance, Yohanis Msigwa v. Republic [1990] T.L.R. 148 and Aziz Abdallah v. Republic [1991] T.L.R. 71 and others which followed. We are also aware that, where a party fails to summon a material witness to fill a gap or explain an important point, the court is entitled to draw adverse inference. See, for instance, Aziz Abdallah v. Republic (supra). A material witness is a witness whose evidence has a strong probative value and relevant to the case such that very few or no any other witness possesses the same information. A material witness is a witness who if not called to testify then, there will be a missing link to the case. A million dollar question is whether the victim's mother and his sibling were material witnesses? In the case before us, PW2 testified how the victim graphically described the ordeal he endured in the hands of the appellant and this is the same information which the mother of the victim would have been expected to testify. On the other hand, Sule was playing with the victim shortly before the victim was lured by the appellant but did not observe the incident and therefore, his testimony was not necessary and his failure to

testify did not affect the prosecution's case. In our considered opinion, we are unable to see any missing link which was left by the prosecution witnesses in particular PW2 which would require to be filled by the mother or even Sule in that case. For that matter, this ground fails. In relation to the criticism in ground ten the appellant faulted the first appellate court for upholding his conviction on the basis of cautioned statement of the appellant, exhibit P2 which was irregularly admitted in evidence. Mr. Kilimuhana admittedly contended that, the entire proceedings and the cautioned statement are silent on when exactly the appellant was arrested and therefore, it is not possible to compute the basic time that was available for interviewing the appellant. He thus, prayed that exhibit P2 be discarded from the record. Ali in all, the learned state counsel was of the strong opinion that, even if we expunge exhibit P2 the evidence on record in particular the oral account is sufficient to sustain conviction of the appellant. In view of the foregoing discussion, ground ten poses no difficulty. It is not insignificant to observe that, the record of proceedings is conspicuous that the appellant was arrested on 5th March, 2023 on the same day of the incident and this is evident on record in particular the evidence of PW2 the ten-cel I leader at page 15 and aiso the evidence of 10

PW4 the police officer who recorded the cautioned statement of the appellant. To be more precise, we wish to let the record of appeal at page 21 speak for itself: "...I started to record the accused statem ent on 5/3/2023 a t 16:50 hours and I com pleted to record h is statem ent on 5/3/2023 a t 17:10 hours. The accused was arrested on 5/3/2023 a t 16:10 hours The above excerpt is consistent with what Is contained in the cautioned statement, exhibit P2 found at pages 30 to 33 of the record which clearly indicates that the cautioned statement was recorded on 5th March, 2023 from 16:50 hours to 17:10 hours the same day that the appellant was arrested as testified by PW2 and PW4 and therefore, it was recorded in line with the provisions of section 50 (1) (a) of the CPA, now section 51 (1) (a) of the CPA R.E. 2023 which sets the basic period available for interviewing a suspect to four hours commencing at the time when he was taken under restraint. Unlike the learned state counsel, we find this ground to have no merit Ms. Barabara argued in response to the complaint in ground six that, the age of the victim was not proved. In her response she was fairiy brief in that the age of the victim was among matters that were not disputed by the appellant as found in the memorandum of agreed facts at page 6 of l i

the record of appeal in particular item 3 where the appellant did not dispute the fact that the victim is 9 years old. Nonetheless, Ms. Barabara contended that, the age of the victim in sexual offences can be proved in several ways apart from the usual birth certificate. Other ways to prove age, she argued, include, evidence of parents, relatives, medical practitioner or by production of birth certificate or clinic card and in this case the PF3, exhibit PI proved the victim to be 9 years old citing page 27 of the record of appeal. Ms. Barabara drew our attention to the earlier cited case of Mwarabu Sugweja @Kihena v. Republic (supra). Indeed, in terms of section 154 of the Penal Code, the age of the victim is not one of the ingredients of the offence when it comes to proving the charge of unnatural offence, Age becomes material only when it comes to the consideration of the appropriate sentence, especially when the victim like in this case was below the age of eighteen years. We find considerable merit in the submission by the learned state counsel that proof of age in sexual offences case may come from relatives, parents, medical practitioner or a production of birth certificate or clinic card. We took similar position in the case of Mwarabu Sugweja @Kihefia v. Republic (supra) when faced with analogous situation and held that under section 154 of the Penal Code age of the victim becomes relevant in

accordance to subsection (2) of section 154 of the Penal Code in as far as sentence is concerned. It is on record that, PW3, the medical practitioner proved through exhibit PI that the victim was 9 years of age. We equally find this ground is without merit. Ms. Barabara dismissed outright the criticism in the thirteenth ground of appeal in which the appellant faulted the first appellate court for sustaining conviction while the defence case was not considered. It is common ground that, it is a serious misdirection on the part of the court to deal with the prosecution evidence on its own and arrive at the conclusion that it is true and credible without considering the defence evidence. There is a plethora of authorities in this matter. See, for instance, Hussein Idd and Another v. Republic [1986] T.L.R. 166. Our close scrutiny of the record of proceedings, with respect, we think there is no validity and substance to this criticism. The trial court at page 40 of the record of proceedings considered the appellant's defence and found out that it did not outweigh the prosecution's evidence. Similarly, the first appellate court considered the defence case at page 89 of the record and following an objective analysis it found out that the prosecution case was not shaken. This ground fails too. 13

Finally, we will deliberate on the first; ninth and twelfth ground whose common denominator is the complaint that the case for the prosecution was not proved to the hilt, In response Ms. Barabara, clearly stated that for one to prove unnatural offence penetration is one of the critical elements and cited the case of Mwarabu Sugweja @ Kihena v. Republic (supra) and according to her PW1 in her testimony testified how he was sodomized by the appellant and this was supported by the testimony of PW3 who tendered exhibit PI. She further argued that, another element to prove in unnatural offence is that the appellant is the perpetrator of the crime and in this case PW1 mentioned the appellant to PW2 and repeatedly he kept mentioning the appellant. The question we are enjoined to answer in view of the above discussion, is whether the evidence in the matter before us was sufficient to prove the case against the appellant. Put differently, can we say the evidence in the present case was such that it irresistibly pointed to the guilt of the appellant? The answer to this question lies in the provision of section 154 (1) (a) and (2) of the Penal Code which the appellant stood charged and which provides as follows: "(1) Any person who- 14

(a) has carnal knowledge of any person against the order of nature; (b) has carnal knowledge o f an anim al; or (c) perm its a male person to have carnal knowledge o f him o r her against the order o f nature, com m its an offence, and sh all be liable to im prisonm ent for life and in any case to im prisonm ent for a term o f not less than thirty years. (2) Where the offence under subsection (1) is com m itted to a child under the age o f eighteen years the offender sh all be sentenced to life imprisonment". [Emphasis added] We think, with respect, that, the learned Senior State Attorney was undeniably right that, the prosecution ably proved the case against the appellant. PW1 proved that he was sodomized by the appellant on the fateful day and this was supported by the evidence of PW3 and exhibit PI. To prove that the appellant was the person responsible, PW1 mentioned the appellant to PW2. Moreover, the appellant admitted his responsibility to PW4 and exhibit P2 is evident to that. We are able to say at the outset, with respect, that the appellant's complaint as regards these grounds is unmeritorious.

In conclusion, alt grounds of appeal, except the second and fourth grounds which were conceded by the learned state counsel, have no merit, rendering the appeal devoid of merit. We accordingly dismiss it. DATED at DODOMA this 10th day of October, 2025. G. A. M. NDIKA JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL P. j. NGWEMBE JUSTICE OF APPEAL Judgment delivered this 10th day of October, 2025 in the presence of the appellant in person, Ms. Prisca Kigagile, learned State Attorney for the respondent/Republic via virtual Court and Mr. John Banene, Court Clerk; is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 16