Alex Benard Manyelezi vs Republic (Criminal Appeal No. 658 of 2024) [2025] TZCA 1034 (7 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA fCORAM: NDIKA. 3.A., KIHWELO, 3.A., And NGWEMBE, J.A.^ CRIMINAL APPEAL NO. 658 OF 2024 ALEX BENARD M ANYELEZI..................... ........................................... APPELLANT VERSUS REPUBLIC........................................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Dodoma) fKakolaki. 3.^ dated the 3rd day of May, 2024 in DC. Criminal Appeal No. 148 of 2023 JUDGMENT OF THE COURT 1st & 7th October, 2025 NDIKA, 3.A.: The appellant, Alex Benard Manyelezi, was convicted of rape by the District Court of Kongwa at Kongwa and sentenced to thirty years in jail, the statutory minimum. The High Court of Tanzania at Dodoma dismissed his first appeal against the conviction and sentence, resulting in this second and last appeal. The appellant was accused of having sexual intercourse with a twelve- year-old girl, whom we will refer to anonymously as "the complainant", on 31st May, 2023 at Njoge village within Kongwa District in Dodoma Region. i

The complainant's testimony served as the foundation of the prosecution case. She stated that at approximately 5:00 p.m. on 31st May, 2023 she was with her younger sibling, Kasiana, walking back home from the family farm when the appellant, a fellow villager, dragged her into a nearby bush. He forcibly stripped her naked and had sexual intercourse with her. Meanwhile, Kasiana issued a desperate cry for help, rushing to a location where the complainant's mother (PW2), father, and other persons were present and requesting their assistance. At the same moment, PW1 Anatory Samuel Odama, a local official, received the distress call. Both PW1 and PW2 testified that when they arrived at the crime site, they noticed the appellant moving unsteadily and fearfully out of a bush. During a brief interaction between PW1 and the appellant, the complainant emerged from the same bush and alleged that she had been raped by the appellant. PW2 checked her daughter's private parts and saw that they were bloodstained. The appellant was promptly restrained and later surrendered to the police. Dr. Mwashamba Omary Zuberi (PW4), a Medical Officer, treated the complainant at Kibaigwa Health Centre. Her medical examination report - PF3 (exhibit PI) revealed that there were "lacerations on labia majora and

labia minora." The complainant's specimen or swab revealed "red blood cells with dead sperm cells/' indicating sexual assault. In his sworn testimony, the appellant categorically denied the accusation against him and raised an alibi. He said that at the time of the alleged occurrence, he was working with his fellow artisanal miners in the village till 6:00 p.m. When they were returning home from work, PW1 approached them and hit the appellant in the head with an axe for no apparent reason. He said that PW1 had grudges against him. The appellant's younger brother, Fa id ini Benard Manyelezi (DW2), backed the claim that he was not present at the crime scene at the material time. The trial court found the prosecution's evidence believable and rejected the appellant's alibi. As a result, it convicted him of rape and sentenced him as mentioned previously. Resenting the verdict, he vainly appealed to the High Court on two grounds: first, that the charge was not established beyond a reasonable doubt, and secondly, that his defence was incorrectly rejected. Still determined, he has appealed to this Court. Through a self-crafted memorandum of appeal, the appellant faulted the first appellate court's decision on fourteen grounds. During his short address on the grounds, he focused on the following procedural and

evidential issues thereby abandoning the rest: first, that the memorandum of undisputed matters was not read over and explained to the parties as part of the preliminary hearing. Secondly, the complainant's statement was not supplied contrary to the dictates of section 9 (3) of the Criminal Procedure Act, Cap. 20 RE 2022 ("the CPA RE 2019"), now section 10 (3) of the Criminal Procedure Act, Cap. 20 RE 2023 ("the CPA RE 2023"). Thirdly, that the evidence was recorded in violation of section 210 (1) (a) of the CPA RE 2019 (section 226 (1) (a) of the CPA RE 2023). Fourthly, that adverse inference ought to have been drawn due to the prosecution's neglect or failure to produce two material witnesses for the prosecution - Kasiana and the police investigator. Finally, that the charge was not proven beyond a reasonable doubt particularly because the prosecution witnesses were not credible, and penetration of the complainant's vagina was not established. For the respondent, Ms. Rachel Balilemwa, learned Senior State Attorney, assisted by Ms. Rose Ishabakaki, learned State Attorney, keenly resisted the appeal. In determining the appeal, we start off with the appellant's criticism that the preliminary hearing procedure was breached. Certainly, section 192 (3) of the CPA RE 2019 (section 198 (3) of the CPA RE 2023) requires that,

at the conclusion of a preliminary hearing, the trial court must prepare a memorandum of undisputed matters and explain its contents to the accused before it is signed by the accused, his counsel, if any, and the prosecutor. The procedure aims to expedite the trial by obviating the need to produce prosecution witnesses on issues that are not contested. Ms. Balilemwa accurately pointed out that the present grievance is clearly at odds with the trial record. The appeal record indicates on page 6 that the trial magistrate drew up, read over and explained the memorandum to the parties prior to obtaining their signatures. The approach fully complied with the law. Therefore, the complaint at hand is clearly unfounded. The second complaint censures the trial court for not availing the appellant with a copy of the statement made by the complainant upon which the criminal proceedings against him were launched. Although Ms. Balilemwa acknowledged the omission, she hastened to submit that the oversight was harmless because it did not affect the appellant's defence. Relying on Elibariki Naftal Mchomvu v. Republic [2022] TZCA 606, she urged that the indiscretion be found remediable under section 388 of the CPA RE 2019 (section 411 of the CPA RE 2023).

Indeed, section 10 (3) of the CPA RE 2023 enjoins the trial magistrate in criminal proceedings before a magistrate's court to make the complainant's statement available to the accused. As we stated in Abdallah Seif v. Republic [2022] 77CA 196 and reiterated in Elibariki Naftal Mchomvu {supra), the primary aim of this requirement is to ensure fairness in trials by equipping the accused with all essential information prior to the commencement of the trial, thereby enabling him to prepare a substantial defence. The learned Senior State Attorney is indeed correct that the requirement was not adhered to. Nonetheless, we must emphasise that the appellant did not indicate whether the omission was detrimental to his defence. Upon reviewing the trial proceedings, we uphold the argument presented by the learned Senior State Attorney that the oversight in question is minor and can be corrected under section 411 of the CPA RE 2023. We are convinced that the lack of the statement did not hinder the preparation and presentation of his defence through cross-examination of the prosecution witnesses and his testimony at the trial. Indeed, we shared the same perspective in Abdallah Seif {supra), Elibariki Naftal Mchomvu {supra), and Daniel Kivati Monyalu v. Republic [2021] TZCA 561, to name just a few.

Turning to the claim that evidence was recorded in violation of section 210 (1) (a) of the CPA RE 2019, now section 226 (1) (a) of the CPA RE 2023, we initially note the requirement for each witness' testimony being signed by the trial magistrate at its end so that it forms part of the record. The appellant alleged that the trial magistrate failed to authenticate the testimonies by signing each one. While Ms. Balilemwa quickly agreed to the complaint, our examination of the appeal's record on pages 9, 11, 12, 15, 16, 19, 20, and 21 verified that all evidence was duly signed and authenticated as per the legal requirement. It may be important at this point to emphasise that the rationale for the above cited provision is guaranteeing the authenticity of the evidence on the trial record. Failure to adhere to the specified procedure would undoubtedly constitute an irregularity. However, the omission would typically be rectifiable unless it is proven to have resulted in a miscarriage of justice, particularly in cases where the evidence on record is distorted. The next issue is the grievance that the trial court failed to draw an unfavourable inference from the prosecution's failure to produce Kasiana and the police investigator as prosecution witnesses. On this, Ms. Balilemwa argued that, according to section 143 of the Evidence Act, Cap. 6 RE 2019 (section 152 of the Evidence Act, Cap. 6 RE 2023), what counted in

demonstrating and proving a fact in issue was the quality of the evidence, not the number of witnesses presented at the trial. Referring to Emmanuel Steven v. Republic [2024] TZCA 368, she argued that the totality of the evidence presented by the prosecution witnesses was sufficient to establish the charged offence even in the absence of the evidence of Kasiana and the investigator, making them non-material witnesses. For starters, it is well established that if the prosecution neglects or fails to produce a material witness at trial without offering any reason, the trial court may legitimately draw an adverse inference against the prosecution case. In Aziz Abdallah v. Republic [1991] T.L.R. 71, the Court aptly stated that: "The general and well-known rule Is that the prosecutor is under prima facie duty to call those witnesses who , from their connection with the transaction in question ; are able to testify to m aterial facts. I f such witnesses are within reach but are not called without sufficient reason being shownf the court may draw an inference adverse to the prosecution." It is obvious and logical that the trial court must first evaluate if the individual is a "material witness." We believe that a material witness is

someone whose testimony is regarded substantial or essential to a case, and whose knowledge or information can have a direct impact on the case's conclusion. In Boniface Kundakira Tarimo v. Republic [2011] TZCA 456, the Court described such a witness as one "who is in better position to explain some missing links in the party's case." See also Emmanuel Steven {supra). In this case, the trial court was told that Kasiana, the complainant's younger sibling, was with her when the appellant dragged her to the bush, and that Kasiana hurried to her mother to attract her attention to the situation. Even though she was not called as a prosecution witness to testify about what happened immediately before the offence was committed, the testimonies of PW1 and PW2, when combined with the complainant's, sufficiently placed the appellant at the scene of the crime, linking him to the alleged rape. On this basis, Kasiana had no missing connection to testify about. The same logic applies to the investigator, whose evidence would almost definitely have come from his interrogations of the witnesses. It would not have been direct evidence. Finally, we address the argument that the charge was not established beyond a reasonable doubt. At the outset, we note that the appellant asked us to find the prosecution witnesses incredible and untrustworthy, but he

provided no rationale for doing so. Ms. Balilemwa, on the other hand, went to great lengths to demonstrate, using Msafiri Mazoea Yassini v. Republic [2025] TZCA 623, that ever/ witness is entitled to credibility and his testimony accepted unless there are good and compelling grounds not to believe him. After evaluating the prosecution witnesses'testimonies, she stated that their evidence was credible and reliable, as determined by the courts below. We agree with the respondent's counsel that there are no valid reasons to discredit any of the prosecution witnesses. For their testimonies, albeit coming from different vantage positions or perspectives, are consistent and harmonious. Furthermore, on a second appeal, this Court would generally defer to the trial and first appellate courts' concurrent calibration of the witnesses' testimonies and evaluation of their probative weight, unless there is a compelling basis to interfere. In this case, we find no such justification. Ms. Ishabakaki weighed in on whether the elements of the charged offence were met under section 130 (1) and (2) (e) of the Penal Code, Cap. 16 RE 2023. She argued that because the complainant's age was established to be twelve years old on the fateful day, that the appellant had sexual 10

intercourse with her, and that she recognised him as she was familiar with him, the appellant's conviction was incontestable. In essence, for a male person to be convicted of rape under the above cited provisions, it must be proven that the victim was under the eighteen years of age at the time of the incident. Once that fact is proved, it is immaterial whether the sexual intercourse was committed with or without the victim's consent - see, for instance, Andrea Francis v. Republic, Criminal Appeal No. 173 of 2014 (unreported). The complainant was twelve years old at the time of the incident, as indicated by the medical examination report (exhibit PI) and the evidence of the complainant, her mother, and the physician. Secondly, the complainant detailed in a vivid manner how the appellant inserted his genitalia into her vaginal orifice, resulting in an injury. The doctor's findings, as detailed in exhibit PI, that she had "lacerations on labia majora and labia minora" and that her swab revealed "red blood cells with dead sperm cells," were consistent with her assertion that she was raped. Ultimately, there is no question that the appellant was the perpetrator of the offence. That is so considering that the sexual act took place in broad daylight, that the complainant was well acquainted with him prior to the incident, and that she recognised him at the crime scene. Consequently, we are satisfied that

his conviction is as sound and appropriate as the thirty-year prison sentence that accompanies it, as it is the statutory minimum penalty. In the final analysis, we find no merit in the appeal, which we wholly dismiss. DATED at DODOMA this 6th day of October, 2025. G. A. M. NDIKA JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL The Judgment delivered this 7th day of October, 2025 in the presence of the appellant in person unrepresented and Ms. Rose Ishabakaki, learned State Attorney for the respondent/Republic connected via video conference and Mr. John Banene, Court Clerk, is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 12