Amadeo Mnyenyelwa & Another vs Republic (Criminal Appeal No. 90 of 2022) [2025] TZCA 1041 (8 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA (CORAM: MWANPAMBO, J.A, MAIGE J.A. And MANSOOR. J.A^ CRIMINAL APPEAL NO. 90 OF 2022 AMADEO MNYENYELWA 1 st APPELLANT DEOGRATIUS NYENZA 2 nd APPELLANT RICHARD MOSES LUHASI 3 r d APPELLANT VERSUS THE REPUBLIC RESPONDENT (Appeal from the Judgement of the High Court of Tanzania at Iringa) 30th September & 8th October, 2025 MANSOOR, J.A.: Amadeo Mnyenyelwa, Deogratius Nyenza, and Richard Moses Luhasi "the appellants" were arraigned before the District Court of Iringa for unnatural offence under section 154 (1) (a) of the Penal Code, Cap 16 R: E 2002. dated the 10th day of December/ 2021 in Criminal Appeal No. 45,46 &47 of 2021 JUDGMENT OF THE COURT l

It was alleged by the prosecution that, on 3r d September 2018, at Kigungawe Area within the District and Region of Iringa, the appellants had carnal knowledge of a boy named in the charge, aged 17, against the order of nature. The trial court found them guilty as charged, convicted and sentenced each of them to serve a jail term of thirty years. Their first appeal before the High Court was dismissed. The High Court confirmed the convictions and sentences passed by the trial court as it found that the charge against the appellants was proved beyond reasonable doubt. The appellants are now challenging the decision of the High Court. They brought six grounds of appeal; however, we find that they ail revolve around on an issue whether the charge was proved beyond reasonable doubt. At the hearing, the appellants appeared unrepresented while the respondent/ Republic was represented by Ms Pienzia Nichombe, the Principal State Attorney, Mr. Amani Kyando and Mr. Nashon Baroshingwa, learned State Attorneys. Briefly, the prosecution case against the appellants can be gathered from the evidence of the complainant who testified as PW1. He testified that, on 3r d September 2018, at around 22.00 hrs, he went to

visit his friend one Justina at Lundamatwe Village. While there, the three appellants appeared carrying bottles of beer. Then, they started calling him names that he is gay and the 2n d appellant told him that he would sodom ise him. Suddenly, the 2n d appellant allegedly held his hands while the 3rd appellant held his legs. They ordered Justina, who is the wife of the 3r d appellant to switch off the lights and leave the place. As soon as Justina left the scene, the 2n d appellant removed his clothes and inserted his penis into his anus, and they all did it in turns. After the sodomy, they took him outside, and one Thomas, a tenant in the same house saw them and asked them to stop. Thomas took PW1 to his room for the night for his safety as PW1 lives far from there. He also feared that they might repeat abusing him. PW1 said, he did not sleep at Thomas's place; he went back home but he was in pain. PW3, one Subira Constantino Mgeni, the executive officer of Matungulu Street, said, she was informed by a person known as Cosmas that a boy was sodomised in the street. She went to see the boy but did not say the exact place where she met the boy. She simply said it was in the Street of which she was the leader. She found the boy crying and when asked, he mentioned the appellants as the people who sodomised him the previous night. PW3 reported the incident to police who

managed to apprehend the assailants and issued a PF3 for the boy to be examined. He was examined by PW2, Doctor Christopher Mbata on 4th September 2018, confirming in the PF3 which was admitted as exhibit PI, that, PW1 was sodomised. That was all for the prosecution. The appellants were all put to their defence. The 1st appellant in his defence denied committing the offence. He said that, he was just passing by the place where he saw some people gambling but did not stay. He was with Thomas Kilocela. He was surprised when the Chairman arrested him on 4th September 2018, and took him to the poiice. He said, he was kept in the police custody for two weeks. The 2n d appellant also denied committing the offence but admitted that he was at the area where people were gambling. While he was there, a fight erupted and he was asked by the owner of the house to help stop the fight. He saw the wife of the 3rd appellant and PW1 at the scene. He was arrested by the police on 4th September 2018 from his mother's house and kept in police custody for 15 days. The third appellant also denied committing the offence. He testified that he lived with his wife in a house with other tenants. On the material date in the evening, he returned from work and asked his wife to prepare a meal, suddenly he heard noises coming from the

neighbours. He went outside and saw people fighting. He tried to calm them down but failed and decided to go back to his room, ate and went to sleep. In the morning, he was arrested by the militiamen on an allegation that he sodomised a boy who turned out to be PWl. The militiamen took him to the police. During the hearing, at the beginning of his submissions, Mr. Kyando opposed the appeal. He insisted that the prosecution was able to prove the offence through its three witnesses and Exhibit PI. He submitted that the ingredients of the offence are whether there was penetration, and secondly whether the penetration was against the order of nature, and thirdly, whether the appellants were involved in the commission of the offence. He submitted that all these ingredients of the offence were proved by PWl, and this led to the Judge of the High Court stating that the victim’s evidence was the best evidence and was enough to sustain the conviction. He referred to the case of Alex Ndendya vs Republic, Criminal Appeal No. 207 of 2018 [2020] TZCA 202. He argued that the evidence of the Doctor (PW2) and a PF3 corroborated the evidence of the PWl, that PW l was penetrated against the order of nature.

As to who had penetrated him, Mr. Kyando argued that, while it is true that the incident happened at night around 22:00 hrs., however, when the appellants entered the room, the lights were on. There were interactions between the victim and the appellants while the lights were on. The appellants were verbally abusing the victim while the lights were on. They also grabbed his hands and legs and covered his mouth with a piece of cloth while the lights were still on. The lights were switched off by Justina, the wife of the 3r d appellant and this is when the three appellants penetrated him in the anus in turns. He argues that, the time during which the appellants were verbally abusing the victim and when they held his hands and legs and covered his mouth was long enough to enable the victim to identify the appellants. Besides, the victim had known the appellants even before the incident. He referred to the case of Waziri Amani vs Republic [1980] T.L.R 250, and said that, the criteria mentioned in that case for identification of culprits by the victim were met. That, there was proximity, there was light and the source of light was mentioned and there were interactions between the victim and the assailants which enabled the victim to identify and recognize them. Besides, the victim knew the appellants before the incident,

He argued further that, the appellants never challenged an issue of identification or recognition as they never cross examined the victim on the issue and this issue remained unchallenged. On this, the counsel referred to the case of Nyerere Nyague vs Republic, Griminal Appeal No. 67 of 2010 [2012] TZCA 103. In the course of his submissions, we prompted Mr. Kyando to address the Court on an issue of variance between the charge and the evidence on record regarding the place of the commission of the offence. Mr. Kyando admitted that there was variance as the charge shows that the incident took place at Kigungawe Area but PW1 said the incident took place at Lundamatwe Village. Mr. Kyando explained that Kigungawe is an area in Lundamatwe Village but this was his submissions from the bar not supported by the record. Again, PW3, the Street Chairperson, mentioned Matungulu Street as the place where the incident took place. Seeing these discrepancies, Mr. Kyando conceded that there is variance regarding the place of the occurrence of the offence, he agreed that the discrepancy rendered the case for the prosecution unproven.

In reply, the 1st appellant said that there was poor identification, and also the evidence of PW1 had lots of discrepancies. He argued that, it is not true that the victim knew him before the date of the incidence. The 2n d appellant responded that, the person known as Joseph Kikoti is mentioned in the judgement of the trial court as the person who was ordered to switch off the light, and he was the same person who took the victim to sleep in his house or room, he thus argued that this person was an important witness and ought to have been called to testify for the prosecution. He said, failure to call him has weakened the prosecution case. The third appellant responded that, Justina, the person who was mentioned by PW1 to be present at the scene and the one who was ordered to switch off the light is his wife. He argued that, it is highly improbable that he would do such an evil act in the presence of his wife. He argued therefore that, the lower courts erred in relying on the evidence of PW1 to convict him as PWl's evidence was all a lie. Having admitted that there was variance between the charge and the evidence on record regarding the place where the offence was committed, we need not belabor on the merits of the arguments by the appellants and shall base our finding on the issue of the variance of the

charge and the evidence on record regarding the place where the offence was alleged to have been committed. It is trite principle of the law that, a charge lays a foundation of the criminal offence, and must be a proper charge with all the essential ingredients of the offence mentioned as correctly and as clearly as possible. The charge should be accurate and free from any error, never at variance with the prosecution evidence, otherwise the offence cannot be said to have been proved. The principle governing charge sheets is that an accused should be charged with an offence known in law. That, all the ingredients of the offence charged should be disclosed and stated in a clear and unambiguous manner so that the accused is able to comprehend the offence he is facing to enable him to make a plea. The accused has a right to plead to a charge which he clearly understood as it wilt also enable him to prepare his defense. Section 132 of the Criminal Procedure Act (now section 135 in R.E 2023) provide for the components/ingredients of the charge sheet, and that the proper charge must constitute the following: "Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such

particulars as may be necessary for giving reasonable information as to the nature o f the offence charged." As admitted by Mr. Kyando that, it is true that there were variances between the charge and the evidence on record regarding the place of the commission of the offence, hence the case of the prosecution is not proved. The variances in the charge and evidence on record could have been cured by the prosecution in accordance with Section 234(2) of the CPA, renumbered as section 251 in the revised edition of 2023, but they did not. This section gives an opportunity to prosecution to amend the charge or information once they see there is variances but they failed to do so resulting in a miscarriage of justice. The variance between the charge and the evidence adduced in support of it with respect to the place at which the alleged offence was committed is material and the charge was to be amended, failure to amend has the effect of making the case for the prosecution unproven. This was the stance of the Court in Said Musa Sowent vs R (Criminal Appeal No. 93 of 2020) [2022] TZCA 218 (22 April 2022, TANZLII). It was held that: "The law is settled that'r a charge which is in material conflict with the witnesses' testimonies 10

materially shakes credence o f the prosecution case and renders the prosecution case not proved". See also Abel Masikiti vs Republic, Criminal Appeal No. 24 of 2015. In view of the fact that the determination of the appeal now turns on a variance between the particulars in the charge and evidence, it is trite law that the duty to prove the charge is on the prosecution and that each and every particular in the charge must be proved. These particulars include, place of the commission of the offence. The effect of the prosecution failing to prove a particular fact rendered the case unproven. In this matter, whereas the prosecution alleged in the particulars of the offence that the offence was committed at Kigungawe Area, the evidence shows that it was committed at Lundamatwe Village, and perhaps Matungulu Street. Contrary to Mr. Kyando's argument, there is no evidence proving that Kigungawe and Lundamatwe or Matungulu are one and the same place. As stated above, since the prosecution did not seek to amend the charge by indicating the correct place of the commission of the offence, the omission was fatal, and cannot be cured under section 411 of the CPA. li

Consequently, and based on the above, the appeal is allowed for the reasons that the prosecution failed to prove the charge beyond reasonable doubt. In the result, the convictions entered against the appellants are quashed and the sentences meted thereon set aside. We order that the appellants, AMADEO MNYENYELWA, DEOGRATIUS NYENZA and RICHARD MOSES LUHASI, be released from prison forthwith, unless held for any other lawful cause. DATED at IRINGA this 7th day of October, 2025. L. J. S. MWANDAMBO JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL Judgment delivered this 8th day of October, 2025 in the presence of Appellants in person - unrepresented, Damas Sixtus, learned State Attorneys for the Respondent/Republic and Leopard Mabugo, Court Clerk is hereby certified as a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL 12