Elias Milambo vs Republic (Criminal Appeal No. 693 of 2023) [2025] TZCA 996 (24 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA ( CORAM: WAMBALI. 3.A.. MGONYA, J.A. And FELESHI, J.Af} CRIMINAL APPEAL NO. 693 OF 2023 ELIAS MILAMBO .............. ............................................... APPELLANT VERSUS THE REPUBLIC......................................................................RESPONDENT (Appeal from the decision of the Court of Resident Magistrate of Geita exercising Extended Jurisdiction at Geita) (Tenawa. SRM. Ext. Jur.) Dated the 23r d day of May, 2023 in Extended Criminal Appeal No. 18 of 2023 JUDGMENT OF THE COURT 23rd July & 24th September, 2025 WAMBALI. J.A.: The appeal arises from the decision of the Court of Resident Magistrate of Geita exercising Extended Jurisdiction (the first appellate court). The appeal was presided over and determined by Tengwa, Senior Resident Magistrate (SRM) with extended jurisdiction after it was transferred by the High Court to the first appellate court where it was registered as Criminal Appeal No. 13 of 2023. Basically, the first appellate court confirmed the finding, the conviction and the sentence of thirty years imprisonment imposed by the District Court of Geita (the trial court) against the appellant on the offence of rape contrary to section 130 (1) (2)(e) of the Penal Code, Cap. 16.

At the trial court, the appellant faced the allegation that on 10th January, 2022 at Kabuye area within the District and Region of Geita, he had carnal knowledge of a girl aged 13 years. As the girl testified at the trial court as PW2, in this judgment, we shall refer her by that title or simply as the victim to disguise her identity. According to the record of appeal, two witnesses testified for the prosecution at the trial court; Emmanuel Bunzari (PW1) and the victim (PW2). The evidence of the victim (PW2) was to the effect that on 10th January, 2022 at 10:00 AM, she was at Tatu Sengerema (her grandmother) home together with the appellant. Later, her grandmother went to the farm and left the duo at the house. PW2 narrated that after some conservation, the appellant asked her to accompany him to the bush to pick some herbs (traditional medicines) and she agreed. However, while in the bush, the appellant told PW2 to undress the clothes, that is, a skirt, a blouse and underpants and lay down on her back. After PW2 refused, the appellant pulled her down, undressed her clothes and his short and inserted the penis in her vagina. PW2 disclosed that she felt severe pain but her quest for help was in vain as no body responded to rescue her after she had raised an alarm. The appellant allegedly closed her mouth by a hand until he completed his mission.

PW2 disclosed further that the appellant then uprooted some herbs and gave part of it to her and both returned to her grandmother's house. On the way, the appellant allegedly warned PW2 not do disclose the incident to any body as he would bewitch her. On arrival at PW2s grandmother house, the appellant ordered her to go in her room and sleep. PW2 testified further that at the respective house, she met her unde, Emmanuel Bunzari (PW1), Tatu Sengerema (her grandmother), her brother Fikiri and other children, including Neema Fikiri who were playing on the ground. However, PW2 proceeded to sleep as ordered by the appellant and while inside, PW1 entered and asked why she was sleeping. PW2 replied that she had headache. PW1 left the room on explanation that he was going to buy some medicine. According to PW2, the appellant then entered the room and ordered her not to wake up on the contention that he wanted to rape her again. PW2 refused, but the appellant remained in the room and asked her to surrender to him her underpants which he washed. Later, the appellant rubbed the victim's vagina using herbs on the explanation that the wounds sustained during sexual intercourse would be healed. A little while, PW1 returned in the respective room and asked PW2 why she was still sleeping. PW2 disclosed that she was in pain because 3

the appellant had raped her when they were in the bush. Following the disclosure by PW2, PW1 arrested the appellant who was still at that place. After the arrest, PW1 sent the appellant together with PW2 at Kakumbiro Police Station where the appellant was put under custody, and PW2 was given a PF3 for medical examination. Nonetheless, the PF3 was not tendered during the trial. However, PW2 testified that upon examination at Nzera Health Centre, the doctor confirmed that she was raped. She was thus given some medicine and returned the PF3 to the police station and later went home. On the other hand, the evidence of PW1, the victim's uncle was that on 9th January, 2022 at 9:00 A.M while on the way to the farm, he went to Kaboyole to meet his family at Tatu Sengerema (his mother) home. That he met the appellant and his mother who were in conversation. PW1 stayed there until 18:00 hours and returned to his residence and left the appellant with his mother. On 10th January, 2022 at 12:00 hours PW1 went back to his mother's home and did not find the appellant and the victim (PW2). When PW1 inquired about their whereabouts, he was told by one child, Baraka Fikiri that they had gone together to the bush to pick herbs and that his mother had gone to the farm. PW1 testified further that, he 4

stayed there for about two hours until the appellant and the victim returned. That, the appellant confirmed that he had gone to the bush with the victim to pick herbs. PW1 stated that he later asked the victim why she was sleeping and she replied that she had headache. PW1 decided to go to a place called "the Village Centre" to find some medicines. However, on his way, he decided to return to his mothers home as he was worried that the appellant might commit any offence. On arrival, PW1 allegedly found the appellant in the room where the victim was sleeping. While in the room, PW1 allegedly witnessed the appellant massaging the victim's private parts. PW1 arrested the appellant and sent him to Kakumbiro Police Station together with the victim. At the Police Station the victim disclosed that she was carnally known by the appellant in the bush where they had gone to pick herbs. Following the information, the police officer issued a PF3 for medical examination of the victim at Nzera Health Centre. After Medical examination it was revealed that the victim's vagina was penetrated. PW1 disclosed that the victim was born in 2009 and that she is the daughter of his brother Fikiri Bunzari Msoma. In his defence, the appellant denied any connection to the commission of the alleged offence of rape against the victim. He testified that, whiie at his residence on 25th August, 2022, he was approached by three persons who told him to report to the village Executive Officer 5

(VEO) office at Nkome. He went to the VEO's office where he met Tatu Sengerema (his sister), Emmanuel Bunzari (PW1) and Fikiri Bunzari. Subsequently, he was informed that he was suspected to have assaulted Tatu Sengerema and caused her to suffer bodily injuries. He emphasized that he did not confess to the allegation. The appellant contended that the case against him was framed up because of the land dispute that existed since 1985 between him and the victim's relatives. He emphasized that Tatu Sengerema is his siter though not from the same parents and that he did not rape the victim as alleged by PW1 and PW2. He further testified that sometimes in January 2021, Tatu Sengerema and the victim visited him at his residence and spent four days together. That as relatives, they stayed in harmony during those days. At the climax of the trial, the trial magistrate evaluated the evidence of the parties on the record and was satisfied that the prosecution had proved the case against the appellant beyond reasonable doubt. He thus convicted and sentenced the appellant as intimated above. More importantly, the appellant's appeal which intended to challenge the decision of the trial court was dismissed in its entirety by the first appellate court, hence this second appeal.

The appellant's memorandum of appeal comprises five grounds of appeal. However, in determining this appeal, the respective grounds are compressed and paraphrased as follows:

1. That, the first appellate court wrongly confirmed the conviction and sentence o f the appellant while the prosecution witnesses failed to prove the ingredients o f the offence in the absence o f medical evidence.
2. That, the first appellate court wrongly confirmed the conviction and sentence o f the appellant by the trial court by relying on the evidence o f family members without an independent witness.
3. That, the first appellate court wrongly confirmed the conviction and sentence o f the appellant by the trial court while the defence evidence was not considered.
4. That, the first appellate court wrongly held that the prosecution case against the appellant was proved beyond reasonable doubt During the hearing of the appeal, the appellant appeared in person. He essentially implored us to consider his grounds of appeal as presented in determining the appeal as he had no further explanation to give regarding the substance. In the end, he prayed that his appeal be allowed as the prosecution did not prove the case to the required standard.

On the adversary side, Mr. Robert Magige and Mr. Mussa Hamis Mlawa, learned Senior State Attorney and State Attorney, respectively who appeared to represent the respondent Republic, strongly contested the appeal. Submitting on the appellant's complaint in the first ground of appeal, Mr. Magige argued that, even in the absence of the medical examination report, the evidence of the victim (PW2) which was corroborated by PW1 sufficiently demonstrated that the ingredients of the offence of rape, that is penetration by the perpetrator and the age of the victim were proved as required by the law. He asserted that, the victim (PW2) proved penetration as she described how the incident occurred in the bush and at Tatu Sengerema's home and how the appellant was involved in committing the offence of rape. The learned Senior State Attorney added that PW1 corroborated the story of the victim as he found the appellant in the room massaging the victim's private parts after they returned from the bush. Besides, he argued, PW1 stated categorically that, the victim was born in 2009 and thus she was 13 years old when the incident occurred as stated in the charge. In support of the position that the age of a child may be proved by a parent or guardian, among other evidence, he referred the Court to

the decision in Isaya Renatus v. The Republic (Criminal Appeal No. 542 of 2015) [2016] TZCA 218 (29 April 2016, TANZLII). Mr. Magige therefore submitted that since the evidence of a medical doctor and the PF3 are merely based on an expert opinion, it cannot bind the court in reaching its conclusion regarding the commission of a sexual offence. He emphasized that the evidence of the victim was credible as concurrently found by the trial and first appellate courts and thus the conviction of the appellant was properly grounded. In the circumstances, Mr. Magige pressed the Court to dismiss the first ground of appeal. Regarding the second ground of appeal, Mr. Magige argued that the law does not prohibit family members to testify against an accused in an appropriate trial as what is considered and weighed is the credibility of the witnesses. Therefore, he submitted, in the circumstances of this case, though PW1 and PW2 are relatives, their credibility cannot be doubted on that aspect only. He emphasised that the finding that PW1 and PW2 are credible witnesses is based on the fact that they testified on the truth of what transpired on the fateful day. In his opinion, both the trial and first appellate courts believed them and rightly relied on their credible evidence to ground the conviction of the appellant.

In conclusion, Mr. Magige, urged the Court to hold that as PW1 and PW2 are truthful witnesses and thus, there was no need of summoning an independent witness to support their testimonies as claimed by the appellant. He maintained that the absence of a police witness who investigated the case did not weaken the prosecution case as the evidence of PW1 and PW2 sufficed to ground the conviction of the appellant. Responding to the complaint of the appellant in the third ground of appeal that his defence was not considered by both the trial and first appellate courts, Mr. Magige firmly differed with the appellant's stance on the matter. He submitted that, according to the record of appeal, both the trial and first appellate courts sufficiently considered the appellant's defence, particularly the assertion that the case against him was framed up because of the land dispute between him and Tatu Sengerema. He argued that the appellant's respective line of defence was rejected because the two courts below were satisfied that it did not raise reasonable doubt. He added that the appellant's defence was not accorded greater weight because the said allegation was raised at the defence stage while the appellant had an opportunity to cross-examine both PW1 and PW2 when they testified in court for the prosecution. He therefore contended that, the appellant's assertion was an afterthought 10

as PW1 categorically stated that the appellant was not a brother of his mother, Tatu Sengerema though he usually visited her home. Lastly, Mr. Magige brushed off the appellant's complaint in the fourth ground of appeal that the prosecution case was not proved beyond reasonable doubt. He asserted that since the settled position is that in a sexual offence case the best evidence emanates from the victim, citing the case of Seleman Makumba v. The Republic [2006] T.L.R. 379, PW2 was a key witness who sufficiently narrated a truthful story on what transpired at the scene of crime in the bush and later at her grandmother's home on the fateful date. He argued that both the trial and first appellate courts properly relied on the victim's evidence to ground the conviction against the appellant. Mr. Magige explained further that, PW2 proved penetration and the involvement of the appellant in committing the shameful offence. He maintained that the trial court properly relied on the evidence of PW2 after it assessed her credibility and was satisfied that the victim's evidence would solely suffice to ground the appellant's conviction as dictated under section 127(6) of the Evidence Act, Cap. 6 (the Evidence Act). Nevertheless, he added, the victim's evidence was also sufficiently corroborated by that of PW1.

On the other hand, Mr. Magige contended that, there are no materia! contradictions between the evidence of PW1 and PW2 on important aspects concerning the presence of the appellant at Tatu Sengerema's home on the material date in which the appellant committed the offence in the bush where he had gone with the victim. Responding to the question posed by the Court on why Tatu Sengerema was not summoned as a witness at the trial, Mr. Magige submitted that she was not a material witness as the victim stated categorically what transpired at the scene of crime. Besides, he stated, the victim's evidence on what transpired at Tatu Sengerema home was fully corroborated by PW1, and therefore, there was no need to summon any other independent witness. He insisted that, in terms of section 143 of the Evidence Act, the prosecution is not bound to summon a particular number of witnesses to prove the case because what matters is that the evidence is weighed not measured. He emphasized that the case against the appellant did not arise because of the land dispute as alleged. Rather, it was on the allegation that he committed the offence of rape and that the evidence of PW1 and PW2 on the record proved to that effect. Responding to the Court's question on why there was a delay of almost five months before the appellant was arraigned in court though he 12

was allegedly arrested on the same day of the alleged incident, Mr. Magige admitted that the record of appeal is silent on the matter. However, he submitted that the said unexpected delay did not cast doubt on his involvement in committing the offence. He contended that the most crucial evidence is that of PW2 that the appellant raped her on the fateful date. In the end, Mr. Magige urged the Court to dismiss the appeal in its entirety because the prosecution case was proved beyond reasonable doubt. In rejoinder, basically the appellant opposed Mr. Magige's submissions and reiterated his earlier stance that the appeal has merit. We are alive to the settled position that the credibility and reliability of the evidence of a witness depends on the weight to be attached to such evidence. In this regard, in Salum Ally v. The Republic, Criminal Appeal No. 106 of 2013 (unreported), the Court stated, among others, that: "... on whether or not any particular evidence is reliable, depends on its credibility and the weight to be attached to such evidence. We are aware that at its most basic, credibility involves the issue whether the witness appears to be tei/ing the truth as he believes it to be true...." 13

On the other hand, we acknowledge the position that demeanour is the exclusive domain of the trial court. However, it is equally settled that depending on the circumstances of a case, the second appellate court may also determine the credibility of a witness while considering the decision of the first appellate court. In Yasin Ramadhani Chang'a v. Republic [1999] T.L.R. 489, the Court stated that: "Demeanour is exclusively for the trial court. However, demeanour is important in situation where from the totality of the evidence adduced, an inference or inferences, can be made which would appear to contradict the spoken words." More importantly, in Shabani Daudi v. The Republic/ Criminal Appeal No. 28 of 2001 (unreported), the Court stated as follows: "... Only in so far as demeanour is concerned, the credibility o f a witness can also be determined in two ways: One, when assessing the coherence of the testimony o f that witness. Two, when the testimony o f that witness is considered in relation with the evidence o f other witnesses, including that o f the accused person. In these two other occasions, the credibility o f a witness can be determined even by the second appellate court when examining the findings o f the first appellate court." 14

(See also Sultan Seif Nassor v. The Republic [2003] T.L.R. 231). To this end, in determining this appeal, we intend to examine the findings of the first appellate court which confirmed those of the trial court regarding the credibility of the prosecution witnesses. This is also consistent with the decision of the Court in Michael Elias v. The Republic, Criminal Appeal No. 243 of 2009 (unreported), where it was stated that: "On a second appeal we are supposed to deaf with questions o f iaw. But this approach rests on the premise that the findings o f facts are based on a correct appreciation o f the evidence. I f both courts completely misapprehended the substance, nature and quality o f the evidence and resulting in an unfair conviction, this Court must in the interest o fjustice interfere." [See also Ludovic Sebastian v. The Republic, Criminal Appeal No.318 of 2007 and Patrick Sanga v. The Republic, Criminal Appeal No.213 of 2008 (both unreported)]. It is acknowledged that the basic premises in proving the offence of rape is penetration of the male organ into the victim's vagina. The victim is therefore in a better position to prove penetration even in the absence 15

of medical evidence which essentially aims to corroborate the victim s story on penetration. In this regard, in Ally Mohamed Mkupa v. The Republic, Criminal Appeal No. 2 of 2008 (unreported), the Court remarked: "It is true that the PF3 (exh. PI) would have supported the commission o f the offences/ but rape is not proved by medical evidence alone. Some other evidence may also prove it " Nevertheless, the victim's story should not be too generalised. There must be proof on how the incident occurred leading to the alleged penetration. In Mathayo Ngalya @ Shaban v. The Republic, Criminal Appeal No. 170 of 2006 (unreported), it was stated as follows regarding proof of rape: "The essence o f the offence o f rape is penetration o f the male organ into the vagina. Sub-section 4 (a) o f section 130 o f the Penal Code provides; for the purpose o f proving the offence o f rape, penetration ; however slight is sufficient to constitute intercourse necessary to the offence. For the offence o f rapef it is o f utmost importance to lead evidence o f penetration and not simply to give a general statement alleging that rape was committed without elaborating what actually took place. It is the duty of the prosecution and the 16

court to ensure that the witness gives the relevant evidence which proves the offence." Reverting to the first ground of appeal, while we agree with the learned Senior State Attorney that the victim (PW2) testified on what transpired at the alleged scene of crime in the bush regarding her encounter with the appellant, her story on what transpired after they returned at her grandmother's house leaves much questions than answers on the alleged incident. We hold this view because; firstly, we acknowledge that medical evidence cannot be solely relied on as the basis of proving penetration in sexual offence cases. However, in the circumstances of this case, we are surprised why the doctor who examined the victim was not called to testify and tender the PF3 which was allegedly issued by the police officer on the same date of the incident. Unfortunately, too, no police officer appeared to testify regarding the reporting of the incident at the police station on the same date. It is thus not certain whether the PF3 was issued by the police for examination of the victim at the alleged Nzera Health Centre. We are of the view that considering the gaps in the evidence of PW1 and PW2, the evidence of the doctor could not have only supported that there was penetration, but also that the victim was examined on the 17

material date. Besides, the evidence of a police officer would not only have filed the lacuna on whether the PF3 was issued on the said date but also that the appellant was arrested immediately after the incident as alleged by both PW1 and PW2. We find that the respective information was important as the record of appeal is silent regarding the delay in arraigning the appellant at the trial court. We wonder if the appellant was really arrested on 10th January, 2021, why he was arraigned in court on 9th June, 2021, after almost five months. We find that the delay in arraigning the appellant casted doubt on whether the incident occurred on the said date and whether he was immediately arrested based on the report of PW1 and PW2 as alleged in their testimonies. More importantly, apart from the evidence of PW2 during examination in chief that she went with the appellant to the bush at 10:00 AM, she did not disclose the time when they returned at her grandmother's home and the particular time the appellant was arrested on the material date. PW2 stated that while in the bush, it took the appellant sometime to complete his mission. However, during cross examination PW2 testified that the appellant was arrested in the evening on the same day by PW1. 18

On the other hand, though PW1 stated that PW2 and the appellant returned back at his mother's house two hours after he arrived at 12:00 hours, he did not state at what time he arrested the appellant and sent him to the police station and later escorted the victim to Nzera Health Centre for medical examination. Secondly, though the victim testified that when they went to the bush with the appellant, Tatu Sengerema (her grandmother and owner of the house) had gone to the farm, she later gave a different story. PW2 particularly stated that when the appellant entered in the room where she had been ordered to sleep and performed several activities including washing her underpants, messaging her private parts and applied some herbs to heal the wounds associated with the alleged rape, her grandmother was in her room. If that was the case, why it was PW1 who allegedly accompanied the victim to the hospital instead of her grandmother. It is also not clear why the victim did not disclose the incident to her grandmother if she was really present in her room and instead, she told PW1. Besides, the evidence of PW1 did not show that during his encounter with the appellant in the room where the victim slept, she was aware that his mother, Tatu Sengerema was in her room. PW1 simply stated that when he went at that home on the fateful day, her mother had gone to the farm and did not disclose if she returned 19

later. This cannot be said to be a minor contradiction on the evidence of PW1 and PW2 who were both at Tatu Sengerema's home on the particular date and time. Thirdly, white PW2 did not disclose that when PW1 entered in her room she found the appellant massaging her vagina, PW1 alluded to that fact. This also casts doubt on who stated the truth between the two witnesses. Fourthly, during cross examination, the victim (PW2) alluded to the fact that while in the bush the appellant promised to give her TZS 30,000.00 to buy school uniform and that she agreed. However, it is apparent in the record of appeal that she did not state that fact during examination in chief. Fifthly, in PW2's testimony in chief, she stated that when she returned home from the bush, she met with PW1, Tatu Sengerema, her brother Fabian Fikiri and other children including Neema Fikiri who were playing on the ground and went directly to the room to sleep. However, the evidence of PW1 shows that her mother, Tatu Sengerema was not there when the victim and the appellant returned as she had gone to the farm. PW1 also testified that at that particular time they sat outside the house with the appellant while the victim went to sleep in the room. 20

It is noteworthy that the contradiction in the evidence of the two witnesses on this particular important fact casts doubt on the veracity of their story concerning what transpired after the alleged return from the bush by the victim and the appellant. As intimated above, if Tatu Sengerema, the owner of the house was present when the appellant and the victim returned, she would have later witnessed the arrest of the appellant by PW1 on allegation of committing the offence of rape. She would also have been aware of what transpired in the room where the victim slept, including the allegation that the appellant washed the victim's underpants after they returned from the bush where the alleged offence of rape was committed. It is in this regard that, we respectfully disagree with the submission of the learned Senior State Attorney that, Tatu Sengerema was not a material witness worth summoning by the prosecution. We are alive as submitted by the learned Senior State Attorney that, in terms of section 143 of the Evidence Act, the prosecution is not obliged to call all witnesses to prove the case. However, in the circumstances of this case, the failure by the prosecution to summon Tatu Sengerema, among other witnesses who were allegedly present at her home, including children who were playing on the ground, the police officer and the doctor who examined the victim, would have entitled the trial and first appellate 21

courts to draw a permissible inference to the case (see Aziz Abdallah v. The Republic (1991) T.L.R. 71 and Gabriel Mnyele v. The Republic, Criminal Appeal No.437 of 2007 (unreported) and among other decisions of the Court. Besides, as there was allegation that Tatu Sengerema was a sister of the appellant, and this also featured during cross-examination of PW1 and the appellant's defence, she would have been called to testify to contest the fact. More importantly, the appellant went to the extent of stating that sometimes in January 2021, Tatu Sengerema and the victim visited his home and spent almost four days and left the respective home on the fifth day. Taking into consideration our deliberation on the inconsistences and contradictions in the evidence of PW1 and PW2, while we agree that the law does not prohibit relatives or family members to testify in support of a material fact at a trial, in this case, it cannot be ruled out that the respective witnesses teamed up to promote a story on a certain version of event. Therefore, in such a case where relatives testify, the court has a duty to ensure that the evidence of each witness is considered on merits as should the totality of the story told by them. For this stance, see Paulo Tarayi v. The Republic, Criminal Appeal No.216 of 1994 (unreported).

In the case at hand, considering the testimony of PW1 and PW2, we hold that the totality of their story concerning the incident of rape casts doubt to the prosecution case against the appellant. In Mathias Bundala v. The Republic, Criminal Appeal No. 62 of 2004 (unreported), the Court stated that: "Good reasons for not believing a witness include the fact that the witness has given improbable evidence, or the evidence has been materially contradicted by another witness or witnesses." [See also Patrick Sanga v. The Republic (supra)]. This is the case between the evidence of PW1 and PW2 regarding the allegation of rape against the appellant. In the circumstances, we find that though the trial and first appellate courts considered the appellant's defence on the genesis of the alleged land dispute and dismissed it, they did not do so critically in relation to entire evidence on the record. Had the two courts below critically analysed the prosecution evidence amid the appellant's defence, a different conclusion would have been reached. In the end, we find that the evidence on the record do not convince us that the prosecution case against the appellant was proved beyond 23

reasonable doubt as contended by the learned Senior State Attorney. In the result, we allow the appellant's complaints in the respective grounds of appeal. Ultimately, we find that the appeal has merit. Consequently, we quash the conviction and set aside the sentence imposed on the appellant. In the event, we order that the appellant be released from custody unless held for other lawful cause. DATED at DODOMA this 23r d day of September, 2025. F. L. K. WAMBALI JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL The Judgment delivered this 24th day of September, 2025 in the presence of the appellant in person, Ms. Neema Kibodya, learned State Attorney for the respondent Republic via virtual Court and Regina Komba, Court Clerk; is hereby certified as a true copy of the original.

—^ R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 24