Lucas Mwakisambwe vs Republic (Criminal Appeal No. 295 of 2023) [2025] TZCA 1110 (15 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT SONGEA (CORAM: MKUYE, J.A.. MASOUD, J.A. And ISM AIL J.A.^ CRIMINAL APPEAL NO. 295 OF 2023 LUCAS MWAKISAMBWE ................................................................... APPELLANT VERSUS THE REPUBLIC..............................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania, at Songea) (Luvanda, J.) dated the 3rd day of February, 2023 in DC Criminal Appeal No, 45 of 2022 JUDGMENT OF THE COURT 6th & 15th October, 2025 MASOUP, JA-: Going by the record before us, the appellant was on 12th May 2021 arraigned before the District Court of Songea at Songea on a charge of raping a girl of 11 years of age (herein after the victim or PW2) between 1st January, 2016 and 30th September, 2017. His arraignment followed his arrest on 13th September, 2017 and it was after a lapse of 1,337 days equivalent to 3 years and 7 months. Be that as it may, the appellant was after a full trial convicted of rape contrary to section 130 (1), (2) (e) and 131 (1) of the Penal Code, Cap. 16. He was as a result sentenced to serve a term of imprisonment of 30 years.

The evidence led by the prosecution and which grounded the conviction came from six prosecution witnesses. They were, the victim's mother, one, Devota Gerod (PW1), the victim (PW2), Valeriana Kapinga (PW3), formerly a nurse at Peramiho hospital; Magaph Majura, a doctor (PW4), WP 3667 D/SGT Mwanaisha Ndauka (PW5), a police investigator, and H. 2318 PC Hamis (PW6), a police officer who arrested the appellant. The substance of the evidence was that PW2 was carnally known by the appellant when PW1 was living with the appellant as spouses with PW2 as the appellant's stepfather. Along with PW2, the couple were also living under the same roof with other children of PW1 as the appellant's stepfather who were not, however, called as witnesses. It was on 9th September, 2017 that PW1 became aware of the incident of the appellant raping PW1. The awareness was after PW2 was diagnosed HIV positive on 9th September, 2017 when PW1 took her to hospital for treatment of abdominal complications. Upon being inspected and probed by PW3 on that day, she was found to have lost her virginity and she named the appellant as the culprit who raped her. It is gathered from PW1 as to how and when the appellant raped her towards the end of 2016. That, she was raped at home when the others were not at home. That, she disclosed at the hospital on 9th September, 2017 that it was her stepfather who raped her. In contrast, PW1 testified that PW2 told her

that, the appellant raped her thrice and warned her not to dare to tell anyone, for if she did, she would have killed her. In a yet another contrast, PW3 said that PW2 did not say how many times she was raped by the appellant and did not say why she did not report to her mother (PW1) about the incident. PW4 examined PW2 at Songea Regional Hospital on 17th October, 2017 five days after the appellant's arrest by PW6 on 13th September, 2017. The arrest followed the reporting of the incident by Peramiho Hospital as per PW3 and PW6. Having examined PW2, PW4 filled and tendered at the trial PF3 (exhibit PE-A) confirming that the victim was penetrated and was HIV Positive. Meanwhile, the appellant was, after his arrest on 13th September, 2017, taken by the police (PW5) from police custody to PW4 on 18th October, 2017 for examination and was found HIV positive as per exhibit PE-B. Against the above evidence of the prosecution, the appellant, in addition to cross-examining the prosecution witnesses, gave sworn evidence denying all allegations. He denied that, he had been living with PW2 under the same roof as spouses. He also denied being a father or stepfather of PW2 and being HIV positive. He, equally, claimed that PW2's disclosure was inconsistent and unreliable. He faulted the testimony of

PW1 for failure to show marriage certificate if at all they were in a spousal relationship under the same roof. Aggrieved by the conviction and sentence which followed the trial court's finding that the charge laid against him was proved beyond reasonable doubt by the prosecution, the appellant filed his first appeal to the High Court which was, however, dismissed for lack of merit. Still aggrieved, he lodged his second appeal to this Court challenging the concurrent findings of the two lower courts that found him guilty as charged. He advanced a number of complaints as found in the grounds raised by him in his memorandum of appeal and his subsequent supplementary grounds. At the hearing, the appellant appeared in person. On the other hand, Ms. Mwajabu Tengeneza, learned Principal State Attorney who was assisted by Ms. Generosa Montano and Mr. Frank Chonja, both learned State Attorneys, appeared for the respondent Republic. It was clear from what transpired at the hearing and based on the submissions that evolved that there is only one main issue to be addressed and determined by the Court, which is whether the prosecution evidence proved the charge beyond reasonable doubt. Ancillary to that, is the overarching question that emerged in the course of submissions regarding the unexplained delay in arraigning the appellant in court and whether it casts doubt on

the prosecution case. Essentially, while the appellant was saying that the evidence did not prove the case to the hilt, the respondent through her learned counsel was of the view that the charge laid against the appellant was proved beyond reasonable doubt. In relation to the issue, the appellant's complaints, looked at against the backdrop of all of the grounds that he raised and which were adopted as forming part of his submissions are not hard to recapitulate. They were that credibility of PW2 and PW1 is wanting and raises doubt on the prosecution case; PW2's testimony is not free from the possibility of her having sexual intercourse with another person and not the appellant; it was not proved that the appellant was really living with PW1 as spouses and with PW2 as his stepfather, for neither a village leader nor a neighbour was called to testify on the matter; it was not proper to rely on the evidence of one family to ground conviction; and that, the preliminary hearing was fatally irregular which raises doubts on the truthfulness of the prosecution case. In his elaboration, and of course in his eventual rejoinder to the subsequent replying submission by Ms. Montano, the appellant said that he could not have raped the appellant whilst he was in police custody from 13th September, 2016 and that the case has taken so long as he was first arrested in 2016. In all, we understood the appellant as, on the basis

of those complaints, urging us to find that the prosecution did not prove the case beyond reasonable doubt. On that strength therefore, he invited us to allow the appeal and set him free. Although Ms. Montano agreed that, there is, indeed, an unexplained delay in arraigning the appellant in court on a charge of rape, as the record before the Court does not bear out why the appellant was not immediately arraigned after he was arrested on 13th September, 2017; she hoped that it must be a result of an order of retrial or anything akin to that. Besides such speculation, Ms. Montano was firm that none of the two police officers, namely PW5 and PW6, who investigated and handled the matter, were led during examination in chief to explain about such delay in order to rule out doubts on the prosecution case. Ms. Montano equally agreed, when we prompted her further, that the preliminary hearing at pages 11 to 12 of the record of appeal which is also complained of by the appellant is not helpful either, given that, the facts of the case as well as the disputed facts are not on record, save for the memorandum of facts agreed by the appellant to the effect that, he " .... adm its that ; he was arrested and brought before the tria l court and charged accordingly" When we asked her as to whether an order of retrial would have amounted to instituting a fresh charge altogether, she was of the clear view that, if there was such an order, the case ordinarily should

have proceeded under the same charge and the same case file in which that case was originally instituted. On reflection, Ms. Montano prayed for an adjournment so that they may look into the matter and address us accordingly. That is notwithstanding that, she agreed with us that information that might be availed to the Court afterwards is clearly not part of what the prosecution witnesses availed to the trial court during examination in chief. Besides the foregoing, Ms. Montano was very much contented that the prosecution evidence proved the charge laid against the appellant beyond reasonable doubt. Relying on the case of Selemani Makumba v. Republic [2006] T. L. R. 376, she argued that the evidence of PW2 was in the circumstances sufficient on its own to ground the conviction as it is the true evidence of the victim of a sexual offence and was, as such, found by the trial court as truthful and reliable. To bolster her argument, she said that the assessment of the credibility of PW2 in relation to the testimony of other prosecution witnesses and her demeanor by the trial court confirmed that she was credible and reliable. She relied on the case of Alex Ndendya v. Republic [2020] TZCA 201. The other evidence on the record, such as that of PW2, PW3, and PW4, is of corroborative effect, she submitted.

Furthermore, Ms. Montano briefly contended in relation to the complaint about family witnesses that there is no law that bars witnesses from the same family to testify if they are in law competent witnesses, citing in support section 135 (1) of the Evidence Act, Cap. 6. It follows that, PW1 and PW2, she argued, despite PW1 being a mother of PW2, were all competent to testify in accordance with the law and their evidence sufficiently proved the case. She, accordingly, urged us to dismiss that complaint as it is devoid of merit. On the issue of failure to call a village leader or a neighbour to lead evidence on whether PW1 and the appellant were indeed in a spousal relationship or cohabiting under the same roof where the victim allegedly happened to be raped by the appellant who was his stepfather, Ms. Montano dismissed the complaint, arguing that it was not raised at the High Court which to her means that it is a new issue. Unfortunately, Ms. Montano did not consider the issue in the light of the complaint by the appellant on the failure of the prosecution to prove the case which necessarily makes that complaint relevant in the circumstances. Be that as it may, all considered, we understood the learned State Attorney as also saying that, those witnesses were not material. We understood her that way because, it was her view that there was no cross- examination pursued by the appellant on the aspect of the evidence to

the effect that the appellant and PW2 were living together under one roof as spouses when that incident of rape occurred. We are alive to the issue which we are to determine in this appeal which is whether the prosecution case was proved beyond reasonable doubt and we have, in that respect, thoroughly considered the submissions on both sides. In the first place, it is a fact that the record bears unexplained delay of arraigning the appellant before the trial court. As pointed out above, the period of delay is reckoned right from the arrest of the appellant on 13th September, 2017 to 12th May, 2021 when the appellant was arraigned on the charge of rape before the trial court. The record to that effect is evident at pages 41 and 51 of the record of appeal where PW5 and PW6 testified to that effect without accounting for the delayed arraignment of the appellant. It is equally apparent at pages 1 and 2 of the same record where it is evident that, the charge was dated 12th May, 2021 and on that same date the said charge was marked as admitted, and the appellant on the same day appeared before the trial court whereby the charge was read over to him and his plea of not guilty was entered. A while ago, we indicated how we prompted the learned State Attorney on whether the record of the preliminary hearing is of any assistance in clearing any doubt on the delayed arraigned. She correctly

in our view said that it was not of any assistance in view of the style taken in recording those facts. We say so because the facts of the case as well as disputed facts are clearly not on record and nothing can be discerned from that record to explain the delay. As long as there is nothing on record offering explanation on the delay, particularly, from the prosecution witnesses, we cannot assume that there was good cause for the delayed arraignment of the appellant of period of 1,337 days equivalent to 3 years and 7 months. In this respect, we recalled the case of Soma Mbeki v. Republic [2022] TZCA 785, where the appellant who was facing a sexual offence charge was arraigned before the trial court after an unexplained delay of 17 days. In that case, the Court found that the unexplained delay established reasonable doubt to the prosecution case. In particular, the Court held that: "While the evidence shows that the appellant was arrested and taken to the police station on 10.12.2017, he was arraigned before the tria l court on 27.12.2017. There is an unexplained delay o f 17 days. Considering the fact that the appellant in defence claim ed to have been arrested for different accusations. ...... the unexplained delay to arraign him before the tria l court is another thing that raises doubt on the truthfulness o f the case against him.

Unfortunately, nobody from the police testified concerning the arrest o f the appellant." In view of the above, we are satisfied that the delay casts reasonable doubt on the truthfulness of the case against the appellant. On the credibility and reliability of the prosecution witnesses, particularly PW2, there are issues which we think we need to deal with, mindful of the principle that, a second appellate court like ours may assess such credibility based on coherence of the testimony and its consideration in relation to the evidence of other witnesses including that of the defence. See for instance, Shabani Daudi v. Republic [2004] TZCA 84; and Alex Ndendya v. Republic (supra). Having done that, we are satisfied that the credibility and reliability of the key prosecution witnesses, namely, PW2 - the victim and PWl-the victim's mother and the truthfulness of the prosecution case against the appellant as a whole is wanting. It is alleged that the appellant and PW1 were living under the same roof as spouses along with PW2 and other children of PW1 as the stepchildren of the appellant. However, the allegation was challenged by the appellant in his cross-examination at pages 21 and 24 and in his defence at pages 55 to 58 of the record of appeal. Going by the substance of the cross-examination on that piece of evidence which is at the very ii

heart of the central allegation against the appellant and his subsequent defence testimony against that allegation, we think the appellant managed to establish doubt on the prosecution case in which it was being alleged that the appellant was in that relationship with PW2. It is in view of the above that, the Village Executive Officer who enabled PW6 to arrest the appellant at his residence was a material witness who should have been called. That is in line with the complaint by the appellant that there was a failure on the part of the prosecution to call a village leader or a neighbour to testify on the allegation that he was in that relationship in respect of which the offence was allegedly committed. It is no wonder that, had the appellant not cross-examined PW1 and PW2 on this important point, the prosecution would have kept on insisting that the failure translates into accepting that piece of evidence. However, that is not the case at the moment, since the appellant effectively cross-examined those witnesses in light of his line of defence which means he did not at all take the prosecution by surprise during his defence. Moreover, our scrutiny of the record could not find any piece of the prosecution evidence clarifying as to when exactly the duration of three years relationship started and ended. That evidence is, in our view, critical because the particulars of the offence were to the effect that the offence

was committed between 1st January 2016 and 30th September, 2017. Despite the absence of that evidence, it is also worthwhile to note that, the testimony by PW1 and PW2 is not only materially in conflict with one another but also it is materially at variance with the particulars of the offence as to when the offence was committed. See for instance, Said Musa Soweni v. Republic [2022] TZCA 218; and Fredy Mtewele v. Republic [2025] TZCA 1024. In the former case, we stated that: "The law is settled that, a charge which is in m aterial conflict with the w itnesses' testim onies m aterially shakes credence o f the prosecution case and renders the prosecution case not proved to the required standard". We subscribe to the above principle of law as it applies to the circumstances of the instant matter as analysed herein above. If we may add, although the appellant was arrested and placed in police custody on 13th September, 2017, the duration within which he is alleged to have committed the offence, surprisingly, covers the period far beyond the date of his arrest. This is another thing that casts doubt on the truthfulness of the prosecution case which alleged that the appellant committed the offence between 1st January, 2016 and 30th September, 2017.

For reasons we have endeavored to demonstrate, we find that the prosecution case was not proved beyond reasonable doubt. Henceforth, we allow the appeal, quash the conviction, and set aside the sentence imposed against the appellant. Accordingly, we order that, the appellant should be released from prison forthwith unless otherwise held for other lawful cause. DATED at SONGEA this 13th day of October, 2025. R. K. MKUYE JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL Judgment delivered this 15th day of September, 2025 in the presence of the Appellant in person, Mr. Kauli George Makasi, learned Senior State Attorney for the Respondent/Republic and Mr. Elias Nkwabi, Court Clerk, is hereby c e f P ® ^ M r u e copy of the original. £ * _ n U - m i A. S. CWJGULU DEPUTY REGISTRAR COURT OF APPEAL